R. v. R.S, 2017 ONSC 6423

COURT FILE NO.: CR-16-74

DATE: 20171026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.S.

Defendant

Ronald Davidson for the Crown

David Hodson and Edmond Thomas for the Defendant

HEARD: October 23-25, 2017

reasons for judgment

WARNING

An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding

Boswell j

[1] RS is 55 years old. He is on trial for acts that he allegedly performed more than thirty years ago. All of the alleged acts took place in 1984, at a time when RS assisted at a group home near Bancroft, Ontario known as the Highland Crossroads. All of the alleged acts are sexual in nature and were committed against young boys who were wards of the Children’s Aid Society and residents of the group home.

[2] There are three complainants: EE, FD and DP, all of whom are now in their 40s. Each lived at the Crossroads in 1984. Each testified that RS fondled his genitals, on one or more occasion(s), while tucking him into bed.

[3] As a result of the complainants’ allegations, RS faces three counts of gross indecency and another three of sexual assault. He elected to testify. He denied any of the alleged sexual misconduct.

[4] The following reasons explain my verdicts on the six counts.

FUNDAMENTAL PRINCIPLES

[5] Before I canvass the evidence tendered at trial, I want to make note of a number of fundamental principles that must be kept foremost in mind in any criminal trial in Canada. They are as follows.

[6] First, RS is presumed to be innocent of the charges against him, unless and until Crown counsel proves beyond a reasonable doubt that he is guilty of one or more of those charges.

[7] Second, the burden of proof at all times remains on the Crown. Even though RS elected to call evidence at his trial, he has no obligation to prove anything in this case.

[8] Finally, since RS testified, and denied the conduct alleged, the reasonable doubt standard must be applied to the assessment of RS’s credibility. In other words, the assessment of the evidence does not simply involve a determination as to whom, between a complainant and RS, is the more believable. The court must consider all of the evidence as a whole and in the context of that evidence, proceed with the following analysis:

(a) If the court believes RS’s denial of the alleged conduct, then obviously he must be acquitted, as the Crown will have failed to establish his guilt beyond a reasonable doubt;

(b) Even if the court does not believe RS’s denial of the alleged conduct, if his evidence, when considered in the context of all of the evidence, raises a reasonable doubt about his guilt in relation to an offence, then again he must be acquitted of it. Again, the Crown will have failed to establish his guilt to the reasonable doubt standard; and,

(c) Finally, even if RS’s evidence does not raise a reasonable doubt about his guilt, RS may only be convicted of an offence if the court is satisfied beyond a reasonable doubt, based on all the evidence the court believes and relies upon, that he is guilty of it.

R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397.

[9] With these fundamental principles in mind, I will turn to a brief review of the evidence tendered at trial, beginning with the Crown’s case.

EVIDENCE TENDERED BY THE CROWN

[10] It is common ground that in the mid-1980s, Highland Crossroads was a group home operating in Harcourt, a Haliburton village near Bancroft, Ontario. It was owned and operated by Donald and Debbie Waterhouse, assisted by Jake and Doris Pothar.

[11] The Crossroads was a group home for troubled children. A significant number of its residents were apparently placed there by the Children’s Aid Society. That was the case with respect to each of the three complainants in this case.

The Evidence of EE

[12] EE was the first witness to testify. He is 46 years old. He was a resident at Highland Crossroads over three distinct periods.

[13] EE testified that he made a visit to the Crossroads with his CAS worker, Larry Barry, to have lunch and to see if he liked the place. He recalled that they had tuna melt sandwiches and that there were horses and other animals. He liked it. He moved in a couple of weeks later. He thought it was 1983 or 1984 when he first moved in.

[14] Highland Crossroads kept a register (the “Register”) in which they recorded details of each resident, including name, date of birth, birth place, wardship status, date of admission and date of discharge, amongst other details. The Register was filed as Exhibit 1 at trial. It was tendered for the truth of its contents as a business record. There is no dispute taken about the accuracy of its contents.

[15] The Register documents that EE first moved into Crossroads on February 28, 1983. He stayed there until June 27, 1984 when he returned to live with his mother. The return did not last and about three weeks later he took up residence at Highland Crossroads again. This time he would stay until August 15, 1984. There was a third stint between January 11, 1985 and January 30, 1985.

[16] EE had a remarkable recollection of the other residents of Highland Crossroads during his stay. He identified ten other residents by name. All are corroborated by the Register. He also identified the Waterhouses and Pothars as the operators of the home and “Grandpa Harrison” as the groundskeeper.

[17] He could not say exactly when RS began to work at the home, but it was after EE became a resident. RS was volunteering to help look after the kids in residence and to drive them to school. According to EE, Highland Crossroads had eight bedrooms upstairs and one big bedroom downstairs. RS lived in the home, but he slept under the stairs in the boiler room.

[18] EE testified that bedtimes for him at Crossroads involved either a back rub or a bedtime story. He was usually put to bed by one of the Waterhouses or Pothars. He liked back rubs. He still does. He recalled that RS was also involved at bedtimes, but did not offer any further evidence about that involvement.

[19] What he did describe was an occasion when he was invited to go to RS’s home for the weekend. He believes it was in the spring of 1984. He was thirteen at the time. It was during his first stint at the group home and there was grass on the ground.

[20] He recalled that he packed a bag of clothing and drove with RS to RS’s home, which was 40-45 minutes away from Crossroads. RS had an older car, four doors, cream in colour. RS was married. His wife, Lori, made them hamburgers for dinner.

[21] After dinner EE went to bed. RS came to tuck him in. EE testified that RS offered to give him a back rub, which was fine with him. He was laying on his stomach while RS rubbed his back. Then RS turned him over. He began to rub his chest and stomach. RS moved on to slide his hand under EE’s pyjama bottoms and he grabbed EE’s penis. He began to masturbate it. EE said he pulled his leg up and kind of rolled over to signal that he did not want this to happen. It was all over within about a minute.

[22] EE said that RS told him that it was a joke; he was just kidding around.

[23] The next morning EE told Lori that he wanted to go back to the group home. RS said he would drive and RS and Lori then returned him to Crossroads.

[24] EE said nothing about the sexual touching for several months. Then, on July 20, 1984, he told his CAS worker, Mr. Barry, what had happened. Mr. Barry had been driving EE from his mother’s home in Toronto back to Highland Crossroads for the beginning of EE’s second stint there. Mr. Barry asked about what was going on in EE’s life. He disclosed the sexual touching at RS’s home.

[25] A shocking turn of events occurred right after EE disclosed RS’s conduct to Mr. Barry. They arrived back at Highland Crossroads to discover that one of the young male residents had murdered an older, autistic female resident. EE never spoke to Mr. Barry of the incident again and Mr. Barry does not appear to have followed up on it.

[26] While EE trusted the Waterhouses and Pothars, he testified that he did not disclose the sexual abuse to them because he was embarrassed by it.

[27] Under cross-examination, EE agreed that he had experienced difficulties in his youth. He once took a gun to school and shot it off. He had anger management problems, acted out and at times had difficulty with authority. He said he has dealt with those issues. He is now married, with two children and gainfully employed in the trades.

[28] EE has a criminal record. It contains a number of entries from about 1989 to 2005, including escaping lawful custody (1989); assault and carrying a prohibited weapon (1991); possession of a restricted weapon and breach of probation (1992); assaulting a police officer (1993); fraud (1994); criminal harassment (2003); and assault (2005).

[29] There was a long gap in offences between 1994 and 2005. EE said he had a drinking problem in 2005, but has overcome it. There are apparently no convictions on his record for the past twelve years.

The Evidence of FD

[30] FD is 45 years old. He came from a physically abusive home and was in the care of the CAS. They placed him at Highland Crossroads. He testified that he was there for two to three years. He thinks it began between 1982 and 1984. He said he later attended Granite Ridge Academy and has a yearbook from there from 1987, so he knows he was gone from the Crossroads by 1987.

[31] The Highland Crossroads Register documents that he was a resident at the Crossroads from January 22, 1984 to July 9, 1986.

[32] Like EE, FD had a remarkable recollection of the other children who resided with him at the group home. He was able to name eleven of his co-residents, as well as the staff who operated the home. He said everyone referred to Mr. and Mrs. Waterhouse as “mom” and “dad”.

[33] Not surprisingly, he recalled the murder of one of the female residents. He did not recall many of the details. He could remember an OPP helicopter landing on the property. He remembered the accused being taken away by the police and later appearing in court. He thought the murder happened in the winter. The Register indicates, however, that it happened in July 1984.

[34] According to FD, there were five bedrooms on the upstairs level of the group home. In addition, the Waterhouses had a bedroom downstairs. The Pothars lived with their children in an attached trailer. FD was able to describe which resident occupied which room. He said that his room had bunk beds, but he was the only occupant of it for 90% of the time he was there. He agreed he may have shared his room with DP for a while after DP first arrived at the home, but he could not recall that.

[35] FD said that RS worked at the home in some capacity. He was not sure if he was employed or volunteered; that was never made clear to the residents. He acted in the capacity of a babysitter, more or less.

[36] FD testified that something happened between him and RS that he did not want to happen. And it happened repeatedly. It happened in his bedroom at night, at the time he was going to bed. He thought he was between twelve and fourteen years old at the time.

[37] The usual bedtime routine for FD involved being tucked in by one of the Waterhouses or Pothars. They would talk to him about his day. RS would tuck him in if the Waterhouses and Pothars were not there or were busy.

[38] FD said that RS would sit on the side of his bed. They would talk about the day, God and Jesus. RS would begin to massage his chest and then move lower and lower towards the waistband of his pyjamas. Sometimes RS would undo his pyjama top. Other times he did not have it done up fully.

[39] RS would pull down the waistband of his pants using his fingers. He would continue rubbing up and down FD’s torso and over his genitals using an open palm all the way down to his forearm. He would keep rubbing his forearm and his hand up and down. This type of rubbing occurred every time RS tucked him in. He cannot say the exact number of times, but estimated it to be fifty or more.

[40] FD recalled that there were two occasions when he ejaculated as a result of RS’s conduct. The first occasion happened on a night he had been playing hockey. He played for Wilberforce and they had a playoff game against the Haliburton Huskies. He said that he ejaculated as a result of RS rubbing him. He felt scared and ran to the washroom and threw his underwear out. He buried it in the trash can in the bathroom.

[41] There were other occasions when FD recalled getting an erection but not ejaculating.

[42] When RS was done abusing him, he would generally say goodnight and say a prayer and that would be it.

[43] FD never told anyone about the abuse, until he described it to the police in connection with this case. He said he did not tell the Waterhouses because it was something he had a hard time communicating and because he did not think he would be believed.

[44] Under cross-examination, FD admitted that he had issues with respect to personal hygiene when he was younger and he had a bed-wetting problem until he was about fourteen. He denied the suggestion that his body-odour issues would have been a deterrent to any would-be abuser. He said that he, God and RS knew what had happened.

The Evidence of DP

[45] DP is 41. He is presently in custody awaiting trial on a number of property-related charges. He has had a difficult life.

[46] The Toronto Star newspaper used to run a little column called “Today’s Child”. It featured a picture and short biography of a child in foster care whom the CAS was looking to place for adoption. I used to read it sometimes when I was young. It always seemed profoundly sad to me that a child’s picture would be posted in the paper as part of an advertisement seeking a family who might want the child. That said, I believe the program may still run and it may very well have had some successes.

[47] DP was a Today’s Child. He went into foster care at age 1. By his seventh birthday he had lived in multiple foster homes in the Greater Toronto Area. As a result of the Today’s Child advertisement, he was selected for adoption by a family in Arnprior. He lived with them for six months, but things did not work out. He went back into the care of the CAS after six months. At age eight he went to live at the Highland Crossroads.

[48] DP testified that his social worker took him out for lunch in Toronto at a burger place to meet with the Waterhouses. RS was present as well. It was arranged that he would go to live at Crossroads. The Waterhouses had to catch a flight to Texas, so he drove the three hours to the group home with RS. He said it was early June 1984. He brought with him a suitcase with all his worldly possessions. And he had a Michael Jackson hat that lit up.

[49] The Highland Crossroads Register reflects that DP was admitted as a resident on June 8, 1984. He lived there until March 31, 1995 when he moved out. He was nineteen.

[50] When he pulled into the driveway of the group home for the first time, a young man ran out of the home to great him. It was FD. They had previously lived together in a foster home in Toronto. DP said they shared a room initially. It had a bunk bed and he had the lower bunk.

[51] According to DP there were eight to ten other residents living at the Crossroads when he got there. He was the youngest. He was able to name seven of the others, plus the dog (Keena) and cat (Smokey). He indicated that the home was run by the Waterhouses and Pothars. It had about seven bedrooms. The Pothars lived in a trailer attached to the house. RS lived there as well. He had a little room under the stairs.

[52] DP testified that some things happened between him and RS that he did not want to happen. They happened in the summer of 1984.

[53] He said that RS used to help them get ready for bed – get their teeth brushed and their pyjamas on. RS would help tuck him in. He would help him out of his clothes and into his pyjamas. RS would say a little prayer and remind him that Jesus loved him.

[54] DP said that over time the tuck-ins got more physical. They started to include a back rub, then a leg rub. Eventually, the rubbing moved to the inside of his legs and ultimately to his crotch. He said that gradually over time RS’s hand began to roam over the outside of his pyjama pants. Eventually it moved under his pants. RS would cup his testicles and touch and rub his penis. He can remember the hair on RS’s arm touching his skin. RS would often tell him he loved him. He’d say, “I love you Danny; Jesus loves you.”

[55] The bedtime sexual touching played out in similar fashion over what DP described as multiple times; at least three.

[56] DP also described a more involved encounter that occurred with RS. He said that one day RS led him, hand-in-hand, down a path out behind the group home. The home sat on a very large parcel of land. There was a barn behind the house. Behind the barn there was a path that led to a waterfall. Beyond the waterfall, about another 75 feet, there was a clearing surrounded by thick foliage. He had never been to this area.

[57] When they got to the clearing they sat down. RS then laid down on his back. He had DP lie down on top of him so they were laying face to face. DP felt RS’s hands on his back and buttocks and he could feel his moustache as RS kissed his neck. RS was grinding his hips into DP’s hips.

[58] RS, he said, rolled him onto his back and began to kiss his chest. RS pulled down his pants or shorts and took his penis into his mouth. He sucked it for about ten seconds. DP was scared and pushed himself away from RS. He cannot remember how he got back to the house. He does not remember any incidents of sexual touching after that time.

[59] DP stayed at the group home until he was 19. Before he was 18 he was using alcohol and marijuana. By his 20s he was using cocaine. He has experienced serious substance abuse problems and addictions. He has been in and out of residential rehabilitation facilities. He has come close to killing himself with drugs more than once.

[60] DP came into conflict with the law in high school. The conflict continues to this day. He gave his evidence in leg shackles. He has an unenviable criminal record. He readily acknowledged it, as he had to, and accepted that it contains a significant number of convictions for offences of dishonesty. Without trying to be comprehensive, by my count he has convictions for some 79 theft-related charges, 11 fraud-related charges, 81 charges for offences against the administration of justice (including fail to appear, escape, breach of probation and/or recognizance and obstruction), and numerous other convictions for possession of stolen property, assault, sexual assault and driving offences.

[61] DP explained that in his view, his criminal antecedents are inexorably intertwined with his substance abuse problems. He maintained that he was telling the truth to the court.

[62] DP testified that the first person he disclosed the abuse he experienced at Highland Crossroads to was EE. They discussed it only in very rough terms. By that he said he meant that he told EE that RS was a sexual pervert.

[63] In early 2015 DP entered a guilty plea to what appears from his record to be some 21 property-related offences. He was remanded in custody pending a pre-sentence report. When a probation officer attended to discuss the report with him, he disclosed the sexual abuse to her in general terms. She reported it to the police and York Region Police Service subsequently contacted him. He gave a formal statement to them about a month later. He said the police statement is the first time he has disclosed to anyone the details of what happened to him.

[64] Under cross-examination, DP denied the suggestion that he had fabricated the allegations of sexual abuse in an effort to mitigate his impending sentence.

[65] He agreed with defence counsel’s suggestion that despite having a close and trusting relationship with the Waterhouses and the Pothars, he never did disclose the abuse to them.

[66] I will move on to briefly review the testimony of RS.

EVIDENCE TENDERED BY THE DEFENCE

[67] RS elected to testify. He denied each and every allegation made by the complainants involving sexual impropriety.

[68] His narrative of events involving the Highland Crossroads began in 1982. He was working as a counsellor at a summer camp called Graphite Bible Camp. The Waterhouses brought some of their group home residents to the camp. He recalled that he and Mrs. Waterhouse shared a mutual admiration for one another and bonded over their Christianity.

[69] He was invited to the group home in October of that year. He began to provide ad hoc services for them, assisting at the Crossroads on an as-needed basis. He would do laundry, help make meals, do dishes and generally clean up the house. The work was sporadic and he was generally only reimbursed for his gas money to get to and from the group home. He eventually started his own painting business and turned his focus to that.

[70] At some point – he was not entirely certain about the date – the Waterhouses received some funding that enabled them to offer him a thirteen week position at the home. He thought it was late 1983 or the beginning of 1984. In any event, he took up the position and agreed that he had a little room under the stairs. He stayed there five nights per week during his thirteen week employment.

[71] RS testified that he did not have a lot of interaction with the children. He learned that they had come from abused backgrounds. He said his personal goal was to encourage, comfort and lead the children to Christ. He agreed, in cross-examination, that to do so he would have to interact with them. Interaction to him meant playing a lot of games, making dinners or doing dishes together.

[72] RS considered himself to be more of a supporter, serving behind the scenes, helping out. He said every day was different. He could be doing laundry, making lunches, or doing dishes. His roles were mostly manual labour.

[73] According to RS, there was usually a devotional period each evening. He did not explain what he meant by “devotional” but I take him to mean something more than just social. I expect some aspect of it had to do with worshipping Christ. He said sometimes Mr. Waterhouse would read a passage, or a part of a book, or play guitar or sing songs.

[74] At about 9:00 p.m., the younger children would be told to go upstairs and get ready for bed. About fifteen minutes later, some of the adults would follow to do tuck-ins. He said that Mrs. Waterhouse would tuck the girls in and he and Mr. Pothar would tuck in the boys. There were usually three of them on the upper floor during this tuck-in period.

[75] Back-rubs were apparently de rigueur when RS was there. He said some of the boys told him that Jake and Don usually gave them back rubs at bed time. It helped them to relax. So he did it too. He said he talked to the kids about how school was, while he provided the back rubs. Usually he prayed for them.

[76] EE was the first of the complainants that RS met. They first met in the summer of 1982 or 1983 when EE enrolled in the bible camp. He said he got along well with EE; they never had any problems.

[77] He agreed that there was an occasion when EE came to his house. It was not, however, as EE described it. According to RS, EE came to the home he shared with his wife, Lori, in February or March 1985. EE had moved out of the group home, but was returning for a visit. They picked him up at the bus station. He stayed over one night and they dropped him at the Crossroads the next morning.

[78] Under cross-examination, RS agreed that the group home lay between his residence and the bus station. In other words he would have to pass the general location of the group home on his way back to his residence. When asked why he didn’t just deliver EE to the Crossroads after leaving the bus station he said it was because there was a snow storm. Upon further questioning, it became apparent that he did not recollect that there had been a snow storm, but thought it was the most probable explanation as to why he did not take EE to the group home straight from the bus stop.

[79] In any event, RS categorically denied touching EE in a sexual way when EE was at his house. He agreed that EE had dinner at his house and that he tucked him in. It’s possible he may have given him a back rub at bedtime but he could not recall it.

[80] FD was the next of the three complainants that RS met. He said that he did a lot of FD’s laundry because FD was a bed-wetter. Mostly he monitored FD’s behaviour at dinner and occasionally put him to bed at night.

[81] RS testified that FD had a horrendous problem with personal hygiene. He wasn’t a kid anyone would want to get close to. That said, occasionally he might give FD a back rub while putting him to bed. He denied, however, that he touched FD in a sexual way or did any of the abusive things to him that FD testified about.

[82] DP was the last of the three complainants that RS met. Consistent with DP’s evidence, RS testified that he met DP in early June 1984 when he went to pick him up in Toronto with the Waterhouses. He drove DP back to Highland Crossroads and dropped him off. He recalled that they ran out of gas on the way and had to enlist the assistance of a local farmer.

[83] RS denied touching DP in a sexual way. He said he felt disgusted listening to DP’s testimony and was saddened that he would make it up.

Opportunity

[84] One area RS testified about was whether he had a reasonable opportunity to commit the offences as alleged.

[85] The allegations of the complainants all appear to have arisen in the spring or summer of 1984. RS testified in direct examination that the only interaction he had with the Crossroads residents in the summer of 1984 was at the bible camp where he was working. He said the one exception to that was when the murder occurred.

[86] In cross-examination he said, “I have an alibi for the summer of 1984”. He said the only time he went to the Crossroads in the summer of 1984 was to deliver DP after he assisted the Waterhouses by picking DP up in Toronto.

[87] At various other points in his testimony, however, RS gave evidence directly in contradiction to his own purported alibi.

[88] He testified, for instance, that there were three incidents he could recall involving DP. The first was when he picked him up in Toronto. The second was a short time later and occurred at dinner time. He was asked to go upstairs and rustle up the kids for dinner. He said DP had a “hissy fit” and would not come downstairs. RS summoned Mr. Pothar to assist. The third incident involved a baseball game. RS said he hit a line drive into DP’s face.

[89] RS also testified that he probably gave DP occasional back rubs. He said that DP and FD shared a room and that sometimes he might have been alone in the room with FD if DP had gone to the washroom. These things could not have happened, of course, if RS was not at the group home in the summer of 1984. DP only arrived on June 8 of that year.

[90] RS gave evidence about the layout of the group home. He agreed there may have been 8 bedrooms upstairs – two doubles and six singles, as well as a washroom. He said bedroom doors were normally open. He also said that tuck-ins, including back-rubs, would usually only take 3-5 minutes.

ANALYSIS

[91] RS is charged with three counts of gross indecency and three counts of sexual assault. The charges relate, obviously, to alleged sexual touching of young boys. The central issue is whether the alleged events actually took place. RS testified that they did not.

[92] In light of RS’s testimony, the W.(D.) analysis requires me to determine if I believe his denials of the alleged criminal conduct, or if those denials raise a reasonable doubt about his guilt. The language of W.(D.) suggests the starting point of the analysis is a consideration of the evidence of the accused. But it would be wrong to consider the testimony of RS in isolation. The court has a positive duty to consider his evidence in the context of all of the evidence presented at trial. The court must compare the evidence of all the witnesses, recognizing of course, that one possible outcome of the comparison and overall assessment of evidence is that a reasonable doubt may be raised about the guilt of the accused: see R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at paragraph 5.

[93] In this case, my assessment of RS’s credibility and reliability requires me to first set it into the context of the evidence provided by the complainants, as his testimony was responsive to their evidence. I therefore intend to start the analysis with my views as to the credibility and reliability of the three complainants.

The Credibility and Reliability of the Complainants

[94] I begin with the observation that credibility and reliability are not the same thing. Credibility has to do with truthfulness. Reliability has to do with accuracy; in other words, the ability of the witness to accurately observe, recall and recount evidence.

[95] I next make note of the obvious. All of the witnesses here were testifying about events that occurred over thirty years ago. Anyone testifying about events so long ago could be forgiven if their memory was not crystal clear about certain aspects of their evidence. Reliability is always a tricky issue when the alleged offences are historical.

[96] Difficulties in processing, storing and recalling events are often compounded where a witness was a child at the time the events in issue are said to have transpired, as all of the complainants in this case were. We recognize that children generally do not have the same ability as adults to recall precise details accurately. The fact that a witness was a child at the time of the events in issue may attenuate, to some extent, inconsistencies in the evidence.

[97] As Chief Justice McLachlin said in R. v. W.(R.) (1992), 1992 56 (SCC), 2 S.C.R. 122 at paragraph 26:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[98] At the same time, the court must be alert to the fact that memory, particularly memory of distant events, may be impacted or altered by the passage of time and the experience of life in the interim.

[99] Having made these general observations, I want to be clear that I have found each of the complainants to have been a sincere, compelling and believable witness. I am also of the view that each has given an account of events worthy of being relied upon.

[100] I find that each of the complainants had a remarkable recollection of the Highland Crossroads group home and events that went on there. I believe that the time each spent there was a very meaningful period in each of their lives, probably for a number of reasons.

[101] Each was able to name multiple other residents and staff. They each had a strong recollection of the dates they were there; recollections which are corroborated by the Register.

[102] Each was able to give detailed accounts of the alleged incidents.

[103] I found their evidence to have been internally consistent and, for the most part, consistent with one another. I have no indication that their testimony here was inconsistent with things they may have said about the same events on earlier occasions. The one notable inconsistency in the evidence was in relation to the time of year that the murder occurred. Two of the three complainants said it was in the summer. RS also said it was in the summer. The Register supports the conclusion that it was in July 1984. FD thought it was in the winter. He was wrong about that. But he had the year right. And he recalled the helicopter landing at the Crossroads and the search for the missing victim. I do not consider FD’s error about the time of the murder to be significant.

[104] There were also inconsistent accounts between all witnesses as to the exact layout of the second floor of the group home. I consider the layout to be a peripheral matter and consequently I am not particularly concerned with the inconsistent descriptions of it.

[105] I found certain aspects of the testimony particularly compelling. Specifically, some of the peculiar little details that each complainant remembered. FD, for instance, remembered attending a hockey game – even the team he was playing against – in relation to one of the assaults. Following that same assault he remembered running to the bathroom and hiding his underwear by burying it in the trash can. DP remembered the feel of the hairs on RS’s arm and the feel of RS’s moustache on his neck. EE remembered there was grass on the lawn when he went to RS’s home and that Lori made them hamburgers for dinner.

[106] Defence counsel submitted that the complainants were not reliable witnesses. To the contrary, I found them exceptionally reliable considering their ages at the time of the incidents and the distance in time between the incidents and the trial.

Corroboration

[107] Some of the peripheral aspects of each complainant’s evidence was corroborated by the testimony of the other complainants and, at times, by the Register. Who was in residence while they were there, the staff, the presence of RS in the group home, the bedtime tuck-in procedure, the back rubs, and the murder, were all consistent across the testimony of the complainants.

[108] Part of RS’s testimony also served to corroborate details of the complainants’ testimony. For instance, his presence at the group home, his little room under the stairs, the younger kids going off to bed before the older kids, the tuck-in process and his participation in back rubs. Though there is a difference in the evidence as to how an overnight visit by EE at his home took place, RS agreed that there was such a visit and that he tucked EE into bed, just as EE said he did.

Demeanour

[109] Though I do not put a great deal of stock in demeanour, each of the witnesses conveyed his evidence in a matter-of-fact fashion. DP sometimes got a little argumentative with defence counsel, but at the same time did not overstate his evidence nor come across as having particularly vitriolic feelings towards RS.

[110] Each complainant readily agreed that apart from the impugned incidents of sexual touching, they had no complaints about RS and no reason to be angry with him.

No Motive to Fabricate

[111] In my view none of the complainants had a motive to fabricate their evidence or to embellish it. Defence counsel raised the prospect of a civil lawsuit as a possible motive, but in my view, that suggestion has no traction. There is presently no ongoing lawsuit. Each of the complainants denied that they intend to bring a lawsuit. All appear to continue to hold the Waterhouses in high regard. FD still refers to them as “mom” and “dad”.

[112] Moreover, the current court proceeding does not appear to have been directly intiated by any of the complainants. The evidentiary record leaves me with the impression that the manner in which these incidents came to the attention of the police was through a probation officer who was preparing a pre-sentence report for DP. DP said he did not even know she was going to go to the police.

[113] Counsel suggested to DP that he may have fabricated the allegation of sexual assault in order to mitigate an impending sentence. I reject that suggestion entirely. DP has almost forty entries on his criminal record, stemming as far back as 1991 and continuing almost uninterrupted since then. If he was going to raise this issue in mitigation of a sentence, I expect he would have done so before 2015. Moreover, the sentence he was seeking to mitigate has long ago been imposed. There would no longer be any particular incentive for him to appear in court and describe the details of a man sexually molesting him as an eight year old boy.

Delayed Disclosure

[114] Questions were put to each of the complainants about the lack of disclosure of the assaults on them. I put virtually no weight on the absence of disclosure for two main reasons.

[115] First, the ways in which people may react to being sexually assaulted are as varied as there are people who have been sexually assaulted. Disclosure, if any, may come about in a myriad different ways. As Chief Justice McLachlin said in R. v. D.(D.) 2000 SCC 43 at paragraph 65:

Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for the delay are many and at least include embarrassment, fear, guilt or lack of understanding and knowledge. In assessing the credibility of a complaint, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.

[116] Second, I completely accept the explanations given by each of the complainants as to why they did not come forward earlier with any complaints. I believe EE’s testimony that he told Larry Barry what happened, but fate intervened in the form of a murder at Highland Crossroads and his complaint, tragically, got lost in the shuffle.

The Criminal Records of EE and DP

[117] I do acknowledge that both EE and DP have significant criminal records. Those records include numerous convictions for offences of dishonesty – particularly in the case of DP.

[118] The prior convictions of a witness may certainly impact negatively on his credibility; particularly where the offences are ones of dishonesty and are recent.

[119] EE’s offences are dated. The most recent is more than 12 years old. He has a stable life now, with a family and a career. I put virtually no weight on his criminal record in terms of the assessment of his credibility.

[120] It is more difficult to discount DP’s record so readily. It is a profound history of criminality. It reflects a strong propensity towards dishonest conduct and a lack of respect for the administration of justice. It is certainly an important piece of the mosaic.

[121] That said, it is overcome, in my view, by three factors: (1) the compelling and detailed evidence he gave in the witness box; (2) the fact that a number of aspects of his evidence are corroborated by other evidence, as I have indicated; and (3) the absence of any apparent motive to fabricate this evidence.

Collusion

[122] One further concern raised by defence counsel, in relation to the testimony of the complainants is the prospect of collusion.

[123] Collusion can arise from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the events in issue: R. v. B. (C.) (2003), 2003 32894 (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.).

[124] All three complainants were questioned about any discussions they may have had with one another about the events in issue.

[125] EE testified that he had not had contact with DP until a few years ago. He said he did not know anything about the specifics of what DP is complaining about. He said he knows FD well and talks to him regularly. He denied, however, that he has spoken to him about any incidents involving RS.

[126] DP testified that EE invited him over for dinner in May 2011. They had a discussion that lasted about two hours when they talked what had happened to them at Highland Crossroads. He said it was a rough discussion only. EE would not tell him the details of what happened to him, nor did DP share the details about incidents he experienced.

[127] FD testified that he has not had a “full detail” discussion with EE or PD about what happened to him. He has simply admitted to EE that RS had “touched him”. He said they have had no discussions about it since the case began.

[128] FD and DP each denied speaking to the other in any way about any of the incidents of sexual abuse they say happened while at Highland Crossroads.

[129] While I am satisfied that the complainants have spoken to one another over the past three decades, and that those conversations at one point or another may have included references to things that happened at Highland Crossroads, I am not persuaded that there is evidence of actual collusion. I am not persuaded that their discussions progressed beyond very general comments.

[130] It makes no sense to me that the three complainants would collude with one another thirty years down the road. And if they were colluding, why the case would arise through the happenstance of a probation officer reporting a comment DP made to her while preparing a pre-sentence report.

[131] The possibility of collusion is a matter that goes to the weight of the evidence and its reliability: R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 47. In this instance, the possibility of collusion affects the weight of the complainants’ evidence very little in my view.

Count-to-Count Similar Act Evidence

[132] Before I move on from the matter of the complainants’ credibility and reliability, I must address the Crown’s request that I consider the similarity of allegations across the various counts on the indictment as evidence that tends to support the assertion that the events actually occurred.

[133] In other words, each of the complainants described similar sexual touching by RS. The Crown urges the court to find that the presence of so many similar allegations makes it more likely that each of the alleged acts occurred, and occurred as described by the complainants individually.

[134] As a general rule, the court must consider each count individually. Under Canadian law, evidence of other acts of an accused person similar to those alleged in a particular count on an indictment, is inadmissible as evidence that a person has a propensity or disposition to do the acts he or she is alleged to have done and is therefore more likely to have done those acts: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 31. This exclusionary rule applies whether the other alleged acts are included in other counts on the indictment or relate to entirely off-indictment conduct.

[135] The rule excluding propensity evidence (which includes evidence of similar acts on prior occasions, or other prior disreputable conduct) has been a part of the English common law for hundreds of years. It is a rule based on policy considerations. While frequently relevant and material, propensity evidence may also frequently attract unwarranted attention and weight. As Justice Sopinka observed in R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at para. 56:

The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person's action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.

[136] Propensity evidence, moreover, has a tendency to distract the trier of fact and may well consume unwarranted time by steering the focus of the trial away from the central issues and into an assessment of the truthfulness of the alleged similar or other acts. Its disadvantages are said to almost always outweigh its advantages: Handy, as above, at para. 37.

[137] Having said all of that, it is well-settled that the exclusion is presumptive but not absolute. Exceptions arise where it can be established by the Crown that the probative value of the evidence outweighs its tendency to prejudice the process and/or the fair trial right of the accused.

[138] In this instance the Crown seeks to use the evidence it tendered on each of the counts on the indictment to support its case on the other counts on the indictment. Where the evidence in issue involves count-to-count similar acts, the prejudice associated with it is arguably lower than would be the case if the proffered similar act evidence involved prior, off-indictment, disreputable conduct. Nevertheless, the court must still engage in an assessment of whether the probative value of the evidence surpasses whatever prejudice the evidence is likely to engender.

[139] In R. v. Handy, Justice Binnie provided a functional framework in which to assess the admissibility of evidence of similar acts. This framework is described by Justice Watt in his Manual of Criminal Evidence, 2016 (Toronto: Ont.: Thomson Reuters Canada Limited, 2016) at §34.01. It requires a determination of:

(a) the relevance of the evidence to an issue in the case, otherwise than by demonstrating the propensity of the defendant to commit crimes or other disreputable or repugnant acts;

(b) the probative value of the evidence;

(c) the prejudicial effect of the evidence; and,

(d) a balancing of the probative value against the prejudicial effect of the evidence.

Identifying the Live Issue

[140] In line with this functional framework, the first step is for the Crown to identify the live issue(s) to which the similar act evidence is related. In this case, the Crown submits that the similar act evidence is relevant to establish that RS had a very specific propensity to act in a particular way. Specifically, to take advantage of the circumstances of trust in a Christian group home to touch young boys in a sexual way while tucking them into bed.

[141] Incidentally, of course, the similar act evidence is offered to support the credibility of the complainants and refute the suggestion that their evidence has been fabricated. I note, as the Crown recognized, that credibility, on its own, is generally not considered to be a sufficient, live issue to justify admitting propensity evidence: Handy, paras. 115-116.

Probity

[142] Having identified the live issues to which the proffered evidence is said to relate, the next step is to assess its probative value. Assessing the cogency of similar act evidence involves an assessment of factors that connect the similar acts to the circumstances of the charged offences, or in this case the charged offences to one another, such as:

(a) The proximity in time of the similar acts;

(b) The extent to which the other acts are similar to the charged conduct;

(c) The number of occurrences of similar acts;

(d) The circumstances surrounding or relating to the similar acts;

(e) Any distinctive features unifying the incidents;

(f) Intervening events; and

(g) Any other factor which would tend to support or rebut the underlying unity of the similar acts.

[143] In this instance, and quoting Professor Wigmore, “it is the improbability of a like result being repeated by mere chance that carrie[s] probative weight”. See Wigmore on Evidence, vol. 2 (Chadbourn rev. 1979), at pp. 245-46. The court must assess, therefore, how alike the alleged incidents are.

[144] Before I proceed further along in the assessment of the probative value of the count-to-count similar act evidence, I want to be clear that I do not consider the use of this evidence as similar act evidence, necessary to shore up the credibility of the complainants. As I have made clear, I have no serious concerns about the credibility or reliability of their testimony. That said, the Crown seeks to rely on similar act evidence, so I will address it.

[145] In this case, all of the alleged acts occurred in the space of, at most, several months in the spring and early summer of 1984. They are all proximate in time.

[146] Apart from DP’s description of the sexual touching that he said occurred in a clearing past the waterfall, all of the alleged incidents are very similar in nature.

[147] All occurred at bedtime, during the tucking-in process. The complainants were always in their pyjamas. All involved some conversation and a prayer. All involved a gradual progression from back or chest rubbing to a touching of the genitals. All were brief in duration.

[148] The one incident with EE was somewhat different because it took place away from the group home. But it still maintained the same features of a situation of trust, tucking-in at bedtime, a prayer, and the progression of touching from rubbing to fondling.

[149] The number of occurrences was significant. FD reported some fifty or more occurrences. DP reported three. EE one.

[150] The evidence tendered by the complainants was, in my view, credible and reliable, which enhances its overall probative value.

[151] In my view, the circumstance of the alleged offences are so significantly similar that, absent collusion amongst the complainants, the improbability of coincidence is very high and it makes the evidence highly probative in terms of whether RS had the specific propensity described by the Crown and whether he acted in accordance with that specific propensity on the occasions in issue.

Prejudice

[152] I turn to the issue of prejudice. It can come in two forms: moral prejudice and reasoning prejudice.

[153] Moral prejudice arises because of the risk that the similar act evidence may support the appearance that the accused is a bad person deserving of punishment. Reasoning prejudice refers to the risk that the trier of fact may improperly conclude that if the accused person has conducted himself dishonorably in the past, he is more likely to have conducted himself in a similar way on the occasion in question. It also includes the possibility that the inquiry into the similar fact evidence and its veracity may eat up significant court time or become a distraction.

[154] The risk of moral prejudice is reduced when the similar act evidence on offer is already part of the evidentiary record as evidence tendered in support of another count on the indictment. In other words, the issue is not whether the evidence should be heard by the trier of fact. It will be heard. The issue is what use it may properly be put to.

[155] The risk of reasoning prejudice is significantly reduced in this case because it is a judge alone trial. The Crown has identified the particular use for the evidence and there is no risk that an untrained jury will misuse it. Moreover, no additional court time has been taken up to introduce it.

Balancing Probity and Prejudice

[156] I conclude that, in this case, the prejudicial impact of utilizing the count-to-count similar act evidence for the purposes described by the Crown is minimal, while its probative value is significant. The evidence of the bedtime sexual touching is admissible, in my view, as evidence that RS had the specific propensity identified by the Crown and that he acted in accordance with that propensity on the occasions identified by the complainants.

[157] The similar act evidence does tend to strengthen the Crown’s case and tends to strongly rebut the assertion that the complainants have fabricated their evidence. That said, as I have indicated, I am of the view that the complainants were credible and reliable witnesses even without the use of their evidence as similar act evidence.

[158] I will move on to consider of the evidence of RS and the W.(D.) analysis.

The Credibility and Reliability of RS and the W.(D.) Analysis

[159] RS, like the complainants, gave his evidence in a relatively matter-of-fact way. There was nothing about his demeanour that would suggest he was not a truthful or reliable witness. And like the complainants he had a very good recollection of many of the events of the time, even though they happened thirty years ago.

[160] That said, there were two significant aspects to RS’s testimony that cause me significant concern. I have mentioned them both already.

[161] First, the glaring inconsistency in his evidence about his involvement in the group home during the summer of 1984. He was insistent that he had no involvement in the activities at the home between the time he dropped off DP on June 8, 1984 and when the murder occurred later in July. But each of the complainants testified that he was there, and his own testimony confirmed it.

[162] I found that RS generally made a concerted effort to minimize the time he was at the Crossroads in the summer of ’84 and to minimize his involvement with the kids. At one point during his examination in chief he made the remarkable statement that he did not have much interaction with the residents of the home. If he had been hired as a groundskeeper, I might have found that statement more believable. But he was living in the home, playing games with the children, making them meals, doing their laundry, doing dishes with them, attending devotionals every evening with them, tucking them into bed and talking to them about Jesus. He may even have continued to interact with some of them during the day at bible camp.

[163] I find that, contrary to his evidence, he was present during the summer of 1984 and he had quite significant interaction with the children. I further find that he had opportunities to commit the offences as alleged by the complainants. I find that he would have been alone with each of them on numerous occasions, including the occasions in issue.

[164] Second, I found his description of how EE came to spend a night at his home simply incapable of belief. EE left Highland Crossroads on January 30, 1985. He was discharged into the care of his mom and dad. He turned 14 two days later. The notion that this 14 year old boy would have travelled back to the group home, by a four hour bus ride, on his own, in the middle of winter, for a visit a month or two after being discharged defies belief. My disbelief was only heightened by the fact that RS clearly manufactured, in the witness box, the reason why he was the one who went and picked EE up from the bus stop and why it was that he brought him home instead of to the Highland Crossroads.

[165] I am not suggesting that RS was an entirely unbelievable witness, but he was unbelievable on two pretty big points. In the result, I am not prepared to believe his denials that he did not commit the acts he is alleged to have committed. I must still consider, however, whether his denials raise a reasonable doubt about whether he committed the alleged acts.

[166] As I said earlier, I must consider RS’s testimony in the context of all of the evidence adduced at trial. I have found RS to have given unbelievable evidence in material aspects of this case. At the same time I have found the complainants to have been entirely credible and reliable. In the context of the evidentiary record on the whole, I find that RS’s evidence does not raise a reasonable doubt about his guilt.

[167] I want to be clear that I am not simply expressing a preference for the complainants’ evidence over that of RS. I am rejecting his evidence on the basis that (1) there were significant credibility issues with it; and (2) I have wholly accepted the contradictory evidence of the complainants.

[168] As Justice Doherty said in R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749, at paragraph 53:

A rejection of the accused’s evidence based on a considered acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

The Essential Elements

[169] I must still address the specific essential elements of the offences as charged, though this trial was really about whether the alleged acts actually occurred.

[170] RS is charged, in relation to each complainant, with two offences: sexual assault and gross indecency. Both offences were part of the Criminal Code in 1984 when the actus reus of the offences were committed.

[171] The offence of gross indecency was found at s. 157. It provided as follows:

Every person who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.

[172] Gross indecency is made out when the Crown proves beyond a reasonable doubt that the acts of the accused were “a very marked departure from the decent conduct expected of the average Canadian in the circumstances: see R. v. St. Pierre (1974), 1974 874 (ON CA), 17 C.C.C. (2d) 489 (Ont. C.A.).

[173] I am satisfied, beyond a reasonable doubt, that RS touched EE, FD and DP in a sexual manner, in the ways in which they described it. Each was under the age of 14 at the time of the sexual touching. I have no hesitation in finding that the conduct of RS was a very marked departure from the decent conduct expected of the average Canadian in 1984. In the result, I find RS guilty on counts 1, 3 and 5.

[174] The offence of sexual assault was added to the Criminal Code, initially as s. 246.1, by An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 19.

[175] A sexual assault is an intentional, non-consensual touching that takes place in circumstances of a sexual nature. In this case, the central issue was about whether the alleged acts occurred at all. If they did occur, and I have found that they did, there is no serious dispute that they constitute an intentional touching; that the touching was non-consensual; and that it was objectively sexual in nature.

[176] In the result, I find RS guilty on counts 2, 4 and 6.

[177] The Crown concedes that the two charges with respect to each of the complainants arise from the same delict. The Crown encouraged the court to conditionally stay one set of charges pursuant to the principles in R. v. Kineapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. In the result, the convictions on counts 1, 3 and 5 are conditionally stayed.

Boswell J

Released: October 26, 2017