COURT FILE NO.: 7758/17

DATE: 2018-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Robert Skeggs, Counsel for the Crown

• and -

M.R.M.

Bruce Willson, Counsel for the Accused

Accused

HEARD: September 4, 5, 6, 7, 11, and 12, 2018

rasaiah J.

REASONS FOR JUDGMENT

INTRODUCTION

[1] The accused is charged with three offences, namely, that on February 14, 1992:

1. he, being in a position of trust or authority towards D.M., a young person, for a sexual purpose, touched directly the body of D.M., a young person, contrary to section 153(1)(a) of the Criminal Code of Canada;

2. he committed a sexual assault on D.M., contrary to section 271 of the Criminal Code of Canada; and

3. he by word of mouth, knowingly uttered a threat to D.M. to cause death to D.M., contrary to section 264.1(1)(a) of the Criminal Code of Canada.

[2] The accused entered pleas of not guilty to all three offences.

[3] This matter proceeded to trial over September 4, 5, 6, 7, 11, and 12, 2018.

OVERVIEW

[4] The complainant, D.M., is 42 years of age. The accused is 64 years of age. The allegations refer to events that occurred approximately 26 years ago, when D.M. was 16 and the accused was 37 years of age. D.M. and the accused are related. The accused is D.M.’s uncle, D.M’s mother’s brother.

[5] D.M. alleges that on February 14, 1992, she was with the accused at his home alone, in the basement, watching TV. He asked her to sit beside him. She got up from the couch where she was sitting and sat beside him in the chair that he was sitting in, following which he told her that he had dreams about having sex with her, started to kiss her, say things to her, then put his hands down her pants and digitally penetrate her vagina. She alleges that after this occurrence, the accused took her home, and when he took her home, as she was getting out of the vehicle he told her he would kill her if she told anybody.

[6] The court received and heard evidence from five witnesses, called by the Crown, including D.M., D.M.’s mother C.M., two of D.M.’s friends C.B. and M.G., and the accused’s former spouse, J. D.M. testified via CCTV and M.G. testified remotely by video. The accused also testified in his own defence.

[7] In my view, the central issues in this trial were credibility and reliability; and the quality of the evidence.

POSITIONS

[8] The defence’s position I summarize as follows: The allegations before the court pertain to a one-time occurrence that happened 26 years ago. Passage of time and the effect of passage of time on the reliability of memories is a significant issue to consider in assessing this case – memories fade. Further, the quality of the evidence does not meet the standard of proof, criminally or civilly. The evidence of D.M. is fraught with significant gaps/lapses surrounding and related to cogent facts of offence itself and the day she says it happened on. D.M. testified to facts that she has no memory of that she cannot explain, despite the many opportunities for explanation as to her certainty regarding them. There are inconsistencies in the evidence of D.M. There are inconsistencies between the evidence of the crown witnesses themselves and D.M.’s evidence. The evidence of the other crown witnesses does not corroborate the events of February 14, 1992, or assist in assessing credibility or reliability of D.M.’s evidence. Finally, the defence asserts D.M.’s evidence is manufactured and was fabricated – fabricated in 1992. D.M. is lying. D.M. had a motive to fabricate – the accused according to D.M.’s interpretation was trying to get her kicked out of her house.

[9] The Crown’s position, I summarize as follows: The elements of the offences on the evidence have been established beyond a reasonable doubt – the Crown has met its burden. The accused used the relationship and closeness which had developed between himself and his then 16-year-old niece to carry out his sexual objectives with her. The Crown submitted that D.M.’s memory of the home was clear; that she had a clear memory of all of the events of the sexual assault; that there was a compelling level of detail; that D.M.’s lack of memory on certain events of the day was not important because they were peripheral or mundane details. The Crown submitted that there were two “rounds” of relevant demeanour evidence from the Crown witnesses relevant to the credibility of D.M. and corroboration; and there were no material inconsistencies in D.M.’s evidence. D.M. was a child at the time of the occurrence which should be considered in assessing her evidence; D.M.’s demeanour at trial ought to be considered – she was responsive, candid and exhibited genuine emotion; and finally, the cool responses of the accused ought to be considered – he ought not to be believed.

[10] It was cleared up in submissions, that the defence was not relying on recent fabrication or suggesting that D.M. ought to have struggled away from an assault if an assault was occurring.

LEGAL FRAMEWORK

[11] The accused is presumed to be innocent until proven guilty. The Crown has the burden of proving beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. This burden of proof never shifts to the accused. The accused does not have to prove his innocence and does not have to prove any motive to lie on the part of the Crown witnesses.

[12] It is not my job to decide what probably happened. It is not enough for the Crown to show that the accused is probably guilty. Proof of probable guilt is not proof beyond a reasonable doubt. My obligation is to determine if Crown counsel has proven the offences beyond a reasonable doubt. I say this, keeping mindful that it is difficult to prove anything with absolute certainty and that the Crown is not required to do so. However, if at the end of the case, based on all of the admissible evidence or lack of evidence, I am not sure that the accused committed the offences as charged, I must find him not guilty of them.

[13] Although in my analysis I occasionally note that there is no evidence of one point or another, this should not be read as any indication that I shifted the burden of proof to the accused at any point, or required him to produce evidence.

[14] For a finding of guilty to the charge of sexual assault, the Crown must prove, beyond a reasonable doubt: a touching, of a sexual nature, in the absence of consent. As to mens rea, the accused need only intend to do the touching, as it is a general intent offence: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 25, 41.

[15] For a finding of guilty to the charge of sexual exploitation, s. 153(1)(a) of the Code, the Crown must prove beyond a reasonable doubt that the accused was in a position of trust or authority towards a young person; was a person with whom the young person is in a relationship of dependency; or who is in a relationship with a young person that is exploitative of the young person, and who for a sexual purpose, touched, directly or indirectly, with a part of the body or with an object, any part of the body of the young person.

[16] For a finding of guilty to the charge of threatening death or bodily harm, s. 264.1(1)(a) of the Code the Crown must prove beyond a reasonable doubt: that the accused made a threat; that the threat was to cause death to D.M.; and that the accused made the threat knowingly.

[17] In light of the accused having testified at this trial, in determining whether the Crown has proven the offences to the criminal standard, I am required to apply R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 . In short, if I believe the evidence of the accused, he must be acquitted. If I do not believe the testimony of the accused but I am left with a reasonable doubt by it, he must be acquitted. Finally, even if I am not left in doubt by the evidence of the accused, I must still consider whether I am satisfied beyond a reasonable doubt of his guilt on the basis of the balance of the evidence which I do accept.

[18] The reasonable doubt principle applies not only to each element of the offences charged, but also to the issue of credibility: R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.) at para. 45.

[19] The defence evidence is not to be examined in a vacuum when assessing whether it is believed or raises a reasonable doubt. It must be assessed in the context of all the evidence: R. v. Campbell, 2003 CanLII 48403 (ON CA), [2003] O.J. No. 1352 (Ont. C.A.)

[20] There are many factors that go into the assessment of credibility. A trial judge must consider, among other things, a witness’ power of observation, his or her memory, his or her age at the time of the events in question, the passage of time, any bias or partiality, interest in the outcome, and demeanour. Of importance is the inherent probability or reasonableness of a particular version of the facts, against the backdrop of uncontroverted facts: see O’Halloran J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at pp. 356-357. In the same case, it is noted that demeanour, standing alone, is an unreliable indicator of credibility: R. v. Janjic, 2010 ONSC 5013, para. 34.

[21] In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 12-15):

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)… (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31.

15 …[P]rior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272 …, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161…, at paras. 32, 35; R. v. Ay, 1994 CanLII 8749 (BC CA), [1994] 93 C.C.C. (3d) 456 (C.A.), …at p. 471 C.C.C. [some citations eliminated]

[22] While inconsistencies on minor matters or matters of detail are normal and are to be expected, a trial judge must be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral”, and thus avoid the duty to address and weigh them: R. v. D.H., 2016 ONCA 569, at paras. 37, 50, 69-71; R. v. Vuradin, 2013 SCC 38, at para. 17. An issue for assessment in the analysis and weighing of inconsistencies is whether the “core” of the allegations remains intact: R. v. R.A., 2017 ONCA 714, at para. 46; R. v. Roy, 2017 ONCA 30, at para. 14, and R. v. Barua, 2014 ONCA 34, at paras. 7-8.

[23] In R. v. W.R., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at page 134, paras. (d) through (i) the court writes,

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to the 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.

[24] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[25] In making these assessments, it is necessary to bear in mind that people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events. In particular, the authorities teach that courts must decide sexual assault cases “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: R. v. Shearing, 2002 SCC 58, at para. 121; R. v. A.R.J.D. [2018] S.C.C. 6.

[26] While I acknowledge that confirmatory evidence need not even implicate an accused or confirm a complainant’s evidence in every respect, it must be capable of restoring the trier’s faith in the complainant’s account: R. v. N.S., [2001] O.J. No. 3994 (Ont. SCJ), para. 66.

[27] As for demeanour evidence, a complainant’s observed emotional condition can be important evidence, considering the timing of events, and the depth of distress reported. It may confirm an account or assist in confirming a reported account of sexual assault: R. v. N.R., [2016] O.J. No. 1561 (Ont. SCJ.) paras. 19-20.

[28] Noted by Hill J. in Plews at para. 335:

The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at 300 per Lamer C.J.C.; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at para. 2-8; R. v. K.(A.), supra at 173; R. v. M.(W.M.), [1998] O.J. No. 4847 (C.A.) at para. 3 per curiam; R. v. Jackson, [1995] O.J. No. 2471 (C.A.) at para. 4, 5 per curiam. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of the principal Crown witness. Evidence of a witness’ motive to lie is relevant as well to the accused qua witness: R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 99 O.A.C. 103 (C.A.) at para. 11-14 per Charron J.A.

[29] I acknowledge that this occurrence was 26 years ago; and the normal operation of human memory and the limits of human powers of description, but I must also keep in mind the standard of proof required to be met.

[30] The court may accept some, none or all of a witness’s evidence, and accord different weight to different parts of the evidence that is accepted. Trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial: R. v. Boyce, 2005 CanLII 36440 (ON CA), [2005] O.J. No. 4313 at para. 3, R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 8.

[31] I understand that the same level of scrutiny should be applied to all witnesses.

ANALYSIS

Introduction

[32] As, I have indicated, in my view, credibility and reliability, and the quality of the evidence are the central issues in this case. They are the main focus of these reasons. I have outlined the offences charged and I was mindful of each of the elements of all of the offences in conducting my analysis.

[33] I reject the accused’s evidence. That being said, I was not satisfied beyond a reasonable doubt that the accused is guilty of the offences as charged.

[34] My decision should not be interpreted to conclude that I have found that D.M. misled the court or lied. I believe that something may have happened at some time between the accused and D.M., however, my examination of the evidence as a whole (including the accused’s evidence) left me unable to conclude that the accused committed the offences as outlined and particularized by the Crown on the indictment, to the criminal standard of proof, which is a high standard – beyond a reasonable doubt.

[35] Below, I set out the evidence of the trial and the particulars of my various assessments of it and findings that led me to this decision.

Evidence of D.M.

[36] D.M. turned 16 on January 29, 1992. At this time she was living on Boundary Road. D.M. lived on Boundary Road since she was about age 10. She lived there until she was 21. She lived there with her mother, father, sister and brother. The home was a bungalow.

[37] The accused is her uncle. He is her mother’s brother. Her mother had 17 siblings. When asked if there was any other way in which she had ever been related to the accused, D.M. indicated “no”. D.M. indicated that she assumed that she has known the accused since she was born but wasn’t sure. She has known him as long as he can remember in any event. The accused to her understanding was from Thessalon, Ontario.

[38] When D.M. was 16 the accused was living in Sault Ste. Marie. He lived down the street from her, off of Chambers Avenue. D.M. did not recall the name of the street. The accused’s home was also a bungalow. She identified that he was living there with his girlfriend (later wife) J. and her son S. She did not recall J.’s last name at the time. She did not recall how long the accused had been living at this residence off of Chambers prior to her being 16.

[39] When D.M. was 16, she and her family knew the accused very well. In terms of describing her relationship with the accused when she was 16 years old, D.M. indicated that she and the accused were “more like friends”. I accept that it is reasonable that D.M. at 16 would have classified her relationship with the accused in this way, given her description of the time they spent together, and based on her mother’s evidence of D.M.’s thoughts about him, and J.’s evidence that they saw D.M. quite often. D.M. testified that the accused would pick her up (in his vehicle) and they would go for drives or go for coffee. He also gave her cigarettes. Sometimes they would go sit at Bellevue Park. She testified that sometimes the accused would have to check on contracts related to his then employment, including plowing. She was present for this. He would pick her up in his truck. I accept that D.M. could have done all of this with the accused despite his denials. D.M.’s familiarity with his job duties and responsibilities was consistent with the accused’s description.

[40] At the time, D.M. had a boyfriend. She is not sure if her boyfriend ever went over to the accused’s home with her and agreed that he could have.

[41] In terms of when the accused started giving her rides, D.M. could not recall when that started. In terms of whether there was anybody else with them during these occasions, D.M. indicated “no”. In terms of how often this would occur, D.M. testified that it would be “quite often”. She testified that she couldn’t really say how many days of the week or how many weeks a month, only that it was just “quite often”. This occurred even before she was 16 years of age. She testified that sometimes she would be waiting for the school bus to go to school in the morning and the accused would pick her up and give her a ride to school. At this time she was going to school at Mount St. Joseph College and Notre Dame for French classes. The accused stopped giving D.M. rides after she “told on him”. D.M. agreed on cross-examination that it was true that “every once in a while” if she was waiting for the bus for school, the accused would go by and maybe give her a lift to school. I did not see this as an inconsistency to her description that it was “sometimes” and even if it was, it was a minor inconsistency. The accused’s evidence corroborates that he gave her rides, but he differs on the frequency. At the end of the day, I am not able to resolve how often it was, but on the trial evidence I believe that there were more rides than the accused wanted to admit to. I was of the view that the accused minimized his relationship and time spent with D.M., which I address in more detail under my assessment of his evidence, set out below.

[42] On re-examination, D.M. testified that it did not seem odd to her that she would go for drives alone with the accused, because he was her uncle. What that meant to her was that “he was a member of her family and an adult so she would follow authority”. This answer struck me as odd. In chief, D.M. had testified that she and the accused were more like friends.

[43] In respect of going out for coffee together, D.M. indicated that this also started before she was 16 years old. She did not have any recollection as to when that would have started and how long before she was aged 16. No one else went with her and the accused for coffee. In terms of the amount of times that she thought she went for coffee with the accused when no one else was around, she testified that she did not have any idea but that it was “a lot”. As to whether or not anyone knew D.M. was going for coffee with the accused, D.M. indicated that her parents were aware that she and the accused “hung out”. She testified that she was not sure if they knew about every time and exactly where they were going, but they were aware that they did this. On cross-examination, D.M. agreed that this was not anything unusual for her to do with any of her family. She remembered that she also used to go for coffee with her cousin. As to whether this was a common thing for her to do with other members of her family, D.M. indicated that she also used to go over to her aunt’s home and have coffee. The accused’s evidence corroborates that that the two of them went for coffee but not the extent described by D.M. I do not know how often it was, but I believe that there were more instances of going for a coffee that the accused wanted to admit to.

[44] D.M. also babysat for the accused and J. D.M. started babysitting for the accused before she turned 16. In terms of how long before, she testified that she could not say for sure. She stated it must have been for a couple of years although she does not know the exact number. J. agreed it was a couple of years. In terms of where she would babysit, she indicated that it was at the accused’s house, the one off of Chambers. She babysat S. At that time, S. was around 10 years old. The length of the babysitting sessions varied. Sometimes she would babysit during the day and sometimes at night. Depending on where the accused and J. were going, she would sleep over. She did not testify as to how many times she had slept over or how often that occurred. This evidence overall was consistent with the evidence of her mother and J. and similar to the accused’s.

[45] At this time D.M. does not remember where J. was working. She believed the accused worked for And Son. When she babysat S., in terms of other people being present, she testified that it was just herself and S. When she was babysitting, her parents would either be at home or at work. Her parents were aware when she babysat. She was paid money for babysitting. This evidence was overall consistent with the evidence of her mother and J.

[46] D.M. confirmed that she understood she was testifying before the court in respect of the allegations arising from February 14, 1992. When asked, she testified that she was able to remember that the incident took place on February 14, 1992 because it was Valentine’s Day. She did not express how she remembered it was Valentine’s Day. When she started her day that day she was at home. She doesn’t remember who was there with her and she does not remember what she was doing. She was a student at that time. She stayed home from school that day because her class was going on a field trip bowling and she didn’t want to go. Her mother let her stay home as a result.

[47] On cross-examination, she testified that she did not know if the class would be bowling all day, or if she would have had to show up for school first to take a bus. She could not remember why she did not want to go bowling. In the context of not being able to remember the details, D.M. responded that “it was a long time ago”, which I accept, but when she was asked if she had any memory of talking to her mother that morning or being home, she said “no” and when she was asked how she knows that it had been in fact a bowling day and she stayed home, she said she had no idea - she just knows and she can’t explain - she could see it in her mind’s eye. The Crown suggested that the lack of memory was the passage of time and that these were mundane or peripheral details. That may be, but the point was raised to demonstrate that many times, D.M. did not have an actual memory of what she was testifying to as the facts and/or could not explain how she knew what that fact or explain her certainty. The bowling was one example. This is a concern on reliability.

[48] In terms of what happened with her day after it was decided that she was staying home, the next memory D.M. has is being in the accused’s truck with the accused. D.M. believes that they had gone for a coffee and then stopped at a gas station where the accused bought cigarettes. She believed that they had gone for a coffee at the Country Style. They always went to either Country Style or Robins donuts. On this occasion she believed it was Country Style but she can’t say for sure. She “just had a feeling” that that’s where they went. In terms of being picked up, D.M. could not remember the accused picking her up, only that she was in his vehicle. There was a gap in her memory. She testified the accused normally would have picked her up from home. D.M.’s evidence was coming out in a way that it was not clear to me that she actually had clear memory of the details she was testifying to.

[49] In terms of the cigarettes D.M. testified that after the accused had stopped for cigarettes and while they were driving, he threw a package of cigarettes to her and told her that she “owed him”. She had not paid for those cigarettes, and never paid him for cigarettes. In terms of him providing her cigarettes, D.M. testified that the accused usually gave her a few here and there. In terms of the purchase of the cigarettes, she remembered him stopping in that area. It would have been she stated the gas station by the Churchill Plaza. At this time of her life D.M. was a cigarette smoker, and had been for a few years by that point. She could not say when in her life, the accused had started giving her cigarettes. In terms of how often he gave her cigarettes, when she was asked again, D.M. testified that basically every time she saw him he would give her a few cigarettes.

[50] On cross-examination, D.M. stated that she had smoked for a couple of years before February 14, 1992, when she was 13 or 14. She started on her own. She would buy her own cigarettes. She smoked in front of the accused. She agreed it was every once in a while, that the accused would give her a cigarette. D.M. stated that she remembered clearly that on February 14, 1992, the accused bought her a package of cigarettes, Matinees. It was suggested to D.M. that since she remembered this so clearly that she should remember the rest of the day clearly. D.M. responded and admitted that she did not remember the whole day clearly.

[51] After the accused threw the pack of cigarettes at her, D.M. testified that they drove to the accused’s house. No one else was with them. She stated that she remembered driving down the street and that it was the same street that the Dunn was on, a local high school. She believed that the street was called Bennett or something. She couldn’t remember the street but indicated they were driving towards his home. While I appreciate the accused denies that this event occurred, this route was a route that the accused travelled up to 10 times a day, and it was a route he could and did take to get to his home.

[52] On cross-examination, D.M. confirmed that she remembered driving towards his house, going by the Dunn and then being at his house. She testified that it made sense to her that he drove them to his home. She does not recall pulling into the driveway, getting out of the vehicle, or actually going into the basement of his home. She testified that she has a gap but she was comfortable enough in making the assumption that he drove them to his home. D.M. did not know the time of day she got to the accused’s home or the time she left. All she knew was that it was sometime during daylight.

[53] They went downstairs and watched some TV. She remembers the TV was on. It was just the two of them in the home. In terms of what happened next, D.M. indicated she was sitting on the couch and the accused was sitting on the chair. The accused told her to come and sit beside him because he wanted to talk to her. She went to sit beside him. After that, D.M. indicated that the accused told her that he was having dreams about having sex with her. He started complaining that J. was frigid. Then he started kissing her and putting his hands under her clothes. He was kissing her on the mouth. She did not kiss him back. At the time, she felt scared and sad. She did not know why she was feeling sad. After this, she testified that he put his fingers inside of her vagina. Then there is a gap. The next thing she remembers is sitting in his truck in her parents’ driveway.

[54] Whether or not they were having any conversations during this occurrence in the basement, D.M. testified that the accused was talking. He was saying things to her like “I can probably make you cum with one finger”. She remembers him saying “now that you’re 16”. She remembers him saying those words. She doesn’t remember anything after that. She does not recall how long this went on for. The next thing that she remembers is sitting in her parents’ driveway in his truck. In terms of how she may have responded to what was going on, D.M. testified that she did not respond. When the accused had his fingers in her vagina, she indicated that she did not make any response to that.

[55] On cross-examination, D.M. agreed that she could clearly remember being in the basement to some extent. She was sitting on a couch in the basement and he was sitting in a chair. She could not describe the chair and could not even see it in her mind but stated she knew he was sitting in a chair. She could not explain.

[56] D.M. testified that she sat beside the accused because he asked her to. She did not think it was odd. There was enough room for her to sit beside him – her rear end was on the chair. When it was suggested that it must have been a tight squeeze, D.M. agreed she would have been a lot closer than 18 inches to him. When she was asked if it was uncomfortable or why she wouldn’t have just sat on the arm, D.M. responded “I don’t know. I was a kid.” She agreed it would have been tight but stated again that there was enough room for her to sit. On re-examination, in terms of whether or not she found it odd that her uncle would ask her to come and sit beside him on the chair she indicated that she did this because he had never done anything to her before.

[57] D.M. did not remember what she was wearing on that day and agreed it could have been a pair of jeans. She remembered that the accused started kissing her. When asked why she did not get up and leave she responded that she didn’t know why, she froze. The next thing she remembers is that his fingers were inside of her. She cannot remember how he got his fingers inside of her. There are a number of gaps in her memories of the events of the incident itself. Again, she did not remember all of the details clearly and testified that she couldn’t explain why.

[58] It was suggested to D.M. by the defence that if she was sitting beside the accused tightly in the chair and she had jeans on that it would be difficult to get his hands down her pants. D.M. responded “I understand your suggestion, but I don’t remember all the details, I’m sorry.” When it was suggested to her that she did not remember all of the details because it did not happen, D.M. responded “Well, I know it did happen.”… “I wish it hadn’t.”… “Ask him.” She indicated she was trying to give as best detail as she could. In terms of demeanour, she was emotional.

[59] D.M. was asked if she recalled that she testified at the preliminary inquiry that she did not recall the event very clearly; that she wished she could remember more, but that she just remembered more of the feelings that she had than what actually happened. She did not adopt that previous testimony and her response was that she remembers “a mix of feelings and what happened”.

[60] D.M.’s next memory is being with the accused in the driveway of her home and accordingly, there is another gap. In her parents’ driveway, D.M. testified that she was alone in the accused’s truck with the accused. There was no one else with them. While in the driveway D.M. stated that the accused told her that if she told anybody he would kill her. He told her this when she was getting out of the truck. In terms of how that made her feel, D.M. indicated that she was scared. She indicated he was very intimidating so she was scared. When she got out of the truck, she did not know what time of day it was but indicated it was daylight.

[61] In terms of what D.M. did with the rest of her day that day, there was another gap. D.M. indicated that the next thing she remembered was babysitting for people down the street. Her two best friends came over. She testified that they used to come over quite often when she babysat at this house and they were permitted to do so. She did not know why she remembered this clearly – she just remembers that she was babysitting – she just knew it was that day, then commented that “it was a long time ago”.

[62] The family she was babysitting for lived on Boundary Road a few doors down from her. She was babysitting two children. The two friends that came over to babysit with her were C.B. and M.G. In terms of what if anything occurred when they came over, D.M. testified that she told these friends what happened. She stated that C.B. didn’t even respond – that C.B. didn’t say anything. D.M. stated that M.G. stated that D.M. should have fought back. At the time D.M. was telling her friends about this, she testified that she was feeling ashamed. It was hard for her to even say it out loud, and it was no easier testifying about it at trial. On cross-examination D.M. testified that in respect of what she told her friends, she testified that she told them what happened, but could not explain this or recall the details of what she told them.

[63] D.M. on cross-examination agreed that she told her mother about the Valentine’s incident after it happened, that day, but when reminded that this was not what she said at the preliminary hearing, she apologized [which appeared to be genuine] and agreed that it was months later in 1992. In respect of why she did not tell her mother before, she did not know why she did not. The later disclosure to her mother, was of no moment to me. What was of moment to me was that C.M., her mother, did not appear by her evidence to know anything about the February 14, 1992 incident. Defence says this is a hallmark of fabrication. I do not agree in this case that I can find this because D.M. gives evidence that is confusing as to what she told her mother and when and quite frankly I am not sure that she really remembers anymore by her evidence. In any event, whether it is genuine loss of memory or not, reliability is a concern.

[64] In terms of the next time D.M. saw the accused after February 14, 1992, D.M. testified that she didn’t know. In terms of describing what her relationship with him was after this, D.M. testified that she never brought it up and neither did he. Things just went back to normal. She continued babysitting for him. They did not talk about what happened until what she described as “when he tried it again”.

[65] On cross-examination, when asked if she was upset (about the Valentine’s Day incident), D.M. stated twice that she was sad. In respect of having interest in going back to the accused’s residence, D.M. testified that she could not explain it. She agreed that she did not like what had happened. They continued to hang out together and she does not know why she did that. She agreed her best answer was she did not know why. D.M. did not know what to think after what had happened. When it was suggested to D.M. that she was 16 and that if the event had really happened that she would not have gone back to the accused’s home, she responded “well, it did happen”, but she could not explain why she went back. It was of no moment to me that D.M. continued her relationship with the accused in my analysis and I agree with the Crown that it should not form the basis of a credibility assessment because sexual assault victims behave differently.

[66] The continuation of the “hanging out” included coffee and cigarettes, and running around and stuff. It could have been for months, and she would have been at his house again during this time too. She did not agree that there were all sorts of opportunities for him to “do it again” thereafter, but then agreed that there could have been - but she didn’t want it to. When it was put to her that it only happened the once, she answered that he tried again.

[67] When asked what she meant by “he tried it again”, D.M. testified that she did not remember what day it was, but that she remembered she was babysitting for the accused and J. She stayed overnight, the night before. J. and S. went to bed and she was sitting downstairs in the basement and the accused was there too. He asked her if she had regretted what had happened and she said yes. He asked her if she wanted to do it again and she said no. After, she went to bed upstairs. She does not remember what season of the year that this occurred during. She was not able to say how long after the Valentine’s Day occurrence that this conversation occurred, only that it was within the same year and for some reason she felt that it was spring but she couldn’t say for sure.

[68] On cross-examination, when it was put to her whether or not she actually remembered J. being in bed clearly, D.M. then testified that she did not remember seeing J., so she supposed she was making an assumption that J. was in bed. After stating that J. was in bed as though she was remembering it/had memory of it, she was qualifying it as an assumption. Again, while it may be a detail that the Crown described as peripheral, it was another example of an occasion of D.M. providing testimony that she had no real memory of or knowledge of.

[69] On re-examination, in terms of why D.M. made the assumption that J. was in bed, D.M. indicated that she made this assumption because the accused and J. were going golfing early in the morning. I understood and appreciated that answer, but the problem for me was that the answer was presented as a memory until it was drawn out that it was an assumption and it created more uncertainty for me on the reliability and accuracy of D.M.’s evidence.

[70] I agree that this is not a case of D.M.’s evidence having major internal inconsistencies on core issues, but as her evidence continued and developed, where assumptions were revealed and no explicable reasons for her certainty could be given by D.M. for her account, I was not left with the required level of confidence as to the reliability of her evidence. The evidence of the other Crown witnesses did not restore that for me, as explained below despite my agreement that D.M. was responsive to the questions and candid and was trying to answer as best as she could.

[71] After going to bed, D.M. testified that during that night she remembered the bedroom door (of the bedroom she was sleeping in) being open, and that the accused was looking in. She kept seeing him staring - standing at the door, staring at her. She testified that she was pretty sure she stayed up all night. In terms of how she felt when she observed the accused standing at the bedroom door staring at her, she indicated she was scared. There is a large gap after this. The next memory D.M. has is being at home.

[72] On cross-examination D.M. confirmed she remembered being in bed. The bedroom that she was in was upstairs. As to where J. was, D.M. testified that she was making the assumption that J. was in her bed – she did not remember seeing her. The house was a bungalow. The bedrooms were upstairs on the main floor. D.M. did not remember where the bedrooms were when it was put to her that the bedroom she was in was close to J. and the accused’s bedroom. D.M. testified that she only had a vague idea. She remembered that there was a living room and a bathroom and maybe two or three bedrooms – she does not remember which was which and she assumed J. was in one of them. It was not key to me that D.M. had a recollection of the layout of the house. She babysat there for 2 years, and regularly for most of the summer.

[73] On cross-examination, D.M. confirmed that she remembered seeing the accused standing at the bedroom door (of the room she was in) quite a bit throughout the night. When she was asked if he was up all night, D.M. responded “I don’t know, you’d have to ask him.” When pressed about what she said that the accused was doing, she agreed that she said she saw him quite a bit through the night, standing there through the whole night, and agreed that they could assume that he was up most of the night, staring at her, not saying anything, just staring – she remembered seeing him. I found that this testimony seemed to develop from uncertainty to that she remembered seeing him. I was left with the impression that her memory on this was not reliable or believable. While it may be possible to stand at her door and stare at her all night, as D.M. described, I have difficulty believing it would have been likely that the accused would have stood there the entire night staring at her. J. was in the house in the next room. The rooms were separated only by a six inch wall. S. was in another room on the same floor. J. and the accused were going golfing early in the morning. Her mother C.M. testified that D.M. told her that the accused came into the room and was at, in or on the bed. C.M. told the police two years prior to the trial that D.M. had told her that the accused had crawled into bed with D.M. and tried “stuff”.

[74] When asked if she babysat the next day, D.M. stated she did not remember but assumed so.

[75] D.M. could not answer whether or not she told the police about the accused staring at her that night or whether she mentioned this at the preliminary inquiry. On re-examination, in terms of why she never said anything in her statement to police or at the preliminary hearing about the accused staring at her throughout the night when she had that sleepover, she indicated she does not know why she didn’t but it’s just how she remembers it. She guessed that she figured she had. She was just going along explaining her memory. The response was “I don’t know. I – it’s just how I remember it. I guess I figured I had. I don’t know, I was just going along with the – today, explaining my memory”. The disclosure of this further detail as it occurred did not form part of my credibility statement as I accept her explanation. However, concerns were still triggered for me based on C.M.’s evidence – It is not plausible that the accused could stand at her bedroom door all night log staring at her and also be at, on or in the bed with her as C.M. described. It would be one or the other. The versions are dramatically different, and as set out in the two paragraphs below, I cannot reconcile this because D.M.’s evidence is not clear as to what she told her mother and when.

[76] After the bedroom incident, D.M.’s next recollection is being at home in her bedroom in the basement of her home. She doesn’t know how she got home. She remembers being in her bedroom in the basement. She was crying, and her mother came to her room to ask her why she was crying. She couldn’t tell her so her mother just kept making guesses as to why she was crying. Her mother finally asked her if the accused had done something to her and she said yes. D.M. indicated that she’s not sure if she actually ever gave her mother details of what happened. She doesn’t believe she gave details that day. She then went on to say she was not sure if she actually gave her mother all of the details or not - she didn’t know.

[77] On cross-examination, D.M. agreed that she gave her mother very little information at that time. In terms of what the accused did to her (her answer of “yes” to her mother), it was implied it was sexual. D.M. did not recall telling her mother that the accused had crawled into bed with her. She testified that she had some conversation at some point with her mother at which time she must have told her mother what had happened, however she did not recall when that conversation happened. When it was put to her that she did not tell the court about the accused crawling into bed with her, D.M. answered, “I don’t…I don’t recall that happening, no”… “There are a lot of blocks in my memory, so I don’t know” – yet she testified that she remembered him standing at the doorway the whole night. D.M. again brought up that it was a long time ago, as part of her response.

[78] After D.M. told her mother or made whatever admission she did to her mother, her mother left the room. She believes it was a few hours later that her mother came back into her room at which time her mother told her that her father went there and told the accused to stay away from her. She doesn’t not know the specifics of the conversation.

[79] In respect of the accused staying away from her after that, D.M. indicated that she saw him a few times but that he stopped coming to try to pick her up and stuff, and that he didn’t ask her to babysit anymore. She never went to babysit there again. She never went to his house ever again. D.M. agreed the disclosure caused the relationship between the mother and the accused, and she and the accused to stop. D.M. testified that the whole thing was unfortunate. D.M. agreed that her mother after this event, told the rest of the family. This rift follows the summer of 1992 incident, not the February 14, 1992 occurrence and I did not receive evidence from D.M. that it was connected to the February 14, 1992 allegations.

[80] D.M. agreed that the allegations came to the attention of the police in 2016 when the police called her and told her that they had been informed that the accused had sexually assaulted her. D.M. eventually went to speak to the police. D.M. remembered going to the police station on June 2, 2016 and giving a video statement, with Constables Campbell and LaRue. In that statement, she remembered that she stated that the accused tried to get her kicked out of her house, by saying to her mother that she didn’t want to live there anymore. In explaining what this meant, D.M. testified that she had a recollection that prior to February 14, 1992, her mother addressed this topic with her. In particular, her mother told her that the accused told her that D.M. didn’t want to live with her anymore and that she wanted to move in with the accused. As to whether there was any talk between D.M. and the accused about this, D.M. testified that she did not tell the accused that she would like to move in with him.

[81] On cross-examination, D.M. denied that she was upset with/at the accused for telling her mother that she wanted to move in with him, and responded that her mother was “not even upset with her about it”. D.M. indicated that her mother asked her (if she said this), and she said “no”, and that was the end of it. When it was suggested that her mother confronting her with this must have upset her, D.M. testified that she did not recall being upset or even addressing it with the accused. D.M. remembered testifying at the preliminary inquiry about this subject. She remembered explaining that she assumed that the accused was trying to get her kicked out of her house because the accused told her mother that she did not want to live with her and that she wanted to live with him; and that the accused was trying to make her mother angry. D.M. did not adopt that she said at the preliminary inquiry that she was upset and reiterated that she did not recall being upset about it. When asked if it would naturally be upsetting, D.M. answered that she could only respond to what she remembered and she did not remember being upset. In terms of how she was getting along at home at the time (1992), D.M. testified that she did not remember anything out of the ordinary, “just regular teenager”. D.M. denied that she told the accused that she was being abused physically or mentally. There was no evidence at trial that D.M. was being abused. D.M.’s mother’s evidence was that she had her rough days and times with D.M. as any mother and daughter would. C.M.’s evidence on this point was very similar to D.M.’s regarding the conversation they had with each other.

[82] The defence suggested that D.M. fabricated these allegations in 1992 because D.M. was upset that the accused (in her interpretation) was trying to get her kicked out of her house or to get her mother angry. The evidence in my view dispels motive to lie. In particular, the only evidence I have is that this conversation took place before February 14, 1992 because neither the accused nor C.M. could remember when it took place. It makes no sense that D.M. would wait 5 to 6 months to make false allegations when all had gone back to normal between D.M. and the accused. It equally does not make sense that D.M. would do this, if she truly wanted to live with the accused, as such a false allegation would certainly foreclose any such possibility. It would not make sense either because D.M. testified that she was not upset about it at the time and her mother was not upset with her either. She had a very brief conversation with her mother about it. Her mother was not angry with her about it. Her mother’s evidence was consistent with her evidence on this point. D.M. consistently denied that she told the accused and/or J. that she wanted to move out of her house and that she did not want to live with her mother. J.’s evidence included no recollection of any discussions of D.M. coming to live with her and the accused.

[83] In 2007, D.M. confirmed that she had been committed to Riverview mental health facility right after the break-down of her marriage and that her committal was partly to do with the assault. This was not explained or expanded on thereafter. No submissions were made with respect to this elicited evidence.

Evidence of the Accused

[84] The accused born July 7, 1954 in Thessalon. He is one of 18 children. His father was a logger. The highest grade he completed was grade 9. After he left school he started working for his father in the bush, logging. After that, he went into construction, meaning road construction, bridges, sewer water works and road projects. He currently works as a project manager for a construction company. D.M. is his niece. C.M. is his sister. The accused has been married three times. His second wife was A.M., the sister of D.M.’s father. His third wife was J. Prior to February 1992 the accused lived in Toronto and so did D.M.’s family and they kept up their relationship there. That continued when they moved to Sault Ste. Marie. The accused agrees that there was a rift in 1992 and by the end of the summer their relationship was over.

[85] Before going further into my assessment of the accused’s evidence, I preface my analysis by stating that for me, there were a number of instances when the accused’s evidence did not present as credible (based on his evidence alone or in context of the whole of the evidence I accepted), and/or there were times when he, in my view, exaggerated his account for the purpose of distancing himself from allegations and/or to diminish the extent of his relationship with D.M. At times, his evidence developed to suit this purpose. Accordingly, this caused me to reject the accused’s evidence.

[86] In 1992, the accused was living on Bowker Street. He believes he owned that home for approximately five years. Boundary Road (where D.M. resided at the time) was probably within a mile of Bowker Street. He lived with J. and S. at Bowker Street. In 1992, S. was approximately 10 to 11 years of age.

[87] The accused described the Bowker Street home. His and J.’s bedroom was on the main level. The main floor had a living area and there was also a living area in the basement. The main floor had a TV but they did not use it as a TV room. They used the basement to watch TV. The basement had couches and chairs and a TV. All bedrooms were on the main floor. There were no bedrooms in the basement.

[88] In 1992, S. was in school and J. worked. In 1992, the accused was working for And Son Construction. He worked there for 17 years. At And Son he was a site project manager and he took care of all construction and trucking maintenance. He believes it could have been some time in 1989 that he started there and then corrected that to say maybe 1986. He was not exactly certain. Contrary to the evidence of C.B., the accused never worked at Red Star. Currently he works for Belanger Construction.

[89] When working at And Son, the accused testified that his morning started at 5:30 every morning. He would be at work for 5:30 a.m. The office was located on Great Northern Road. Regarding the length of his day, he testified that his day could have been anywhere from 5:30 am to 7:30 pm or 10:00 pm. He went on to state that this was “pretty much seven days a week”. On cross-examination, the accused indicated that sometimes his shifts were overnight and went well into the afternoon of the next day. The accused then stated that he never really had an 8-hour shift, that they were usually 25-27 hour shifts. When the accused gave this evidence, it did not come across as believable to me. He could not have worked 7 days a week 25 to 27 hour shifts.

[90] The type of work the accused was doing at this time was making sure equipment was running and trucks were being loaded and prepared to move; and with the construction, making sure the sites were ready. In 1992, And Son did some snow removal and construction work. He would be physically involved in snow removal. On cross-examination he testified that he would do this every night it snowed and between the snowplowing and the trucking this kept him busy in the winter time. He was organizing the truck loads that were going out every day. It was a 24-hour operation. They had trucks on the road. Back then in 1991 he believes that there had been some major storms and weather was way different. There are less storms now and less snow. Sometimes the accused had up to six people plowing with him. In the truck, in the vehicle, however, it would be just himself in his vehicle, others were out there with other vehicles as part of the team. Larger parking lots meant multiple plow trucks. However, everybody was one person to a unit.

[91] I did not receive information as to the snow and/or if there was a significant amount of snow in February of 1992 from any witness.

[92] The accused’s evidence on how often he saw D.M. varied throughout his evidence. This evidence carried an undertone of minimizing his relationship or contact with D.M., internal inconsistencies, and inconsistencies with the evidence of J. and C.M.

[93] In chief, on or around February of 1992, the accused testified that he would see D.M. “once in a while”. The circumstances under which he said he saw D.M. was namely, if and when he stopped at D.M.’s house for a coffee or a visit or if he was driving by D.M.’s house, he would stop and give her a ride to school. The accused testified that he recalled picking up D.M. and driving her to school “occasionally”.

[94] J., the accused’s former wife, testified that they saw D.M. quite often.

[95] On cross-examination, the accused testified that he gave D.M. rides whenever she needed and “stuff like that”. If they called for rides, he gave them. They helped each other. First he stated, that the rides “pretty much happened only if they called”. When questioned further, he agreed that he did gave D.M. rides if he saw her. He would stop and pick her up. As her uncle he did not ask her parents for permission if he saw D.M. waiting for the bus in terms of stopping and picking her up and taking her to school because their family helped everybody. In terms of giving her rides to other places as well, the accused then stated it was possible but he cannot recall everything. He may have received a call to take D.M. somewhere other than school like the mall and he may have dropped her off there if they had called her for a ride.

[96] When he was asked about watching out for D.M. as her uncle, he indicated that he did this for all his nieces and nephews.

[97] When he was asked about spending time with D.M. and when it started, the accused responded that he spent time with all his nieces and nephews at all of their functions and homes and everything. It was common for him to be involved in all his nieces’ lives, D.M. included. He agreed it was fair to say he was a caring uncle.

[98] On cross-examination, the accused did not agree that he was taking care of D.M. when she was with him. He never looked at his relationship with D.M. like he was in charge. It was at this point, he went on and he testified that it was not that he picked her up every day. His evidence at this point went from “occasionally” to that “it was “once in a blue moon”.

[99] In terms of the circumstances under which he would be driving by D.M.’s house, the accused stated that his job took him all over town. He had a pickup that he drove, a company vehicle. He had this company vehicle because his jobs were all over the city. The accused drove his company truck for personal use. He and J. also had a car for personal use, but J. drove the car almost exclusively. His truck was fixed with a plow in the winter and it came off whenever he wanted to get it off. It would take him five minutes to take it off, but it would not be the same for J. J. never drove his company truck. The clear inference was that he may have found himself to be in the area on a job or when travelling from job to job, in terms of picking up and or seeing D.M. at a bus stop to pick her up and take her to school.

[100] The accused agreed that when he was driving in the vehicle he was in charge of the motor vehicle and in charge of getting her to school. The accused testified that he never picked D.M. up at school, none that he can ever recall. He knows she went to a school up on the hill and he knew it was a catholic school but he did not know it was an all-girls school. He never paid attention if there were boys there when he dropped her off there. He just dropped her off and drove away. He looked at the building but never noticed that there were no boys there. There were boys at the bus stops. He never went in the bus line but saw busses there. He did not see people getting off the buses because they were facing the school. But he agreed he was basically oblivious to people being dropped off at the school. The Crown made something of this, but this was of no moment to me as the Crown did not lead evidence that no boys attended this school and absent evidence to the contrary, it could have been possible at this time that they did.

[101] In the wintertime of 1992 if D.M. babysat, the accused stated it may have been very rarely. He believes she babysat through some of the summer. It may have been the odd night during the week or Saturday or something otherwise. D.M. babysat in the summer because both he and J. worked. They needed a babysitter to take care of S. S. was not in school in the summer. D.M. was there more in the summer than the winter to watch S. C.M. described the babysitting as being on and off, and J. described it as occasional outside of the summer months. D.M. did not quantify it. It could have been very rarely from his perspective because it was not clear if the babysitting was always for both of them or for J. while the accused was maybe working. Either he or J. placed the call for D.M. to babysit and it wasn’t a designated job that one person had to place the call in the household. S. sometimes went to his house and sometimes D.M.’s house. He believes that most of the time it was at Bowker.

[102] The accused did not recall how D.M. got to his house for babysitting. In terms of picking her up, he initially stated that “probably he was never there to go get her”. This did not make sense to me, especially if it was an occasion where she was babysitting so that he could go out with J. C.M. testified that the accused would in fact pick D.M. up to babysit for that purpose. His evidence however developed and he qualified that “never during the week would D.M. get a ride from him to bring her to his home for babysitting but possibly on the weekends to come over and babysit”. Again, I found this not to be believable. He could pick her up during the week and divert and get a coffee and then take her to school, but never pick her up to bring her to his home to babysit during the week?

[103] D.M. was in charge of S. and the house when she babysat. D.M. would call the shots while he and J. were gone. In terms of instructions for S., the accused stated that this would have been J.’s job to give those instructions to D.M. J. set the rules for the house. He never shared the rules with D.M. J. took care of that and this is how it was and he never crossed that line. In terms of safety issues regarding the house and calling 911, the accused testified that D.M. knew where the phones were. In respect of the house in general, the rules were put there; his wife put them there and wrote them down. He described that J. was very careful because they had a pool in their backyard and wanted S. monitored the whole time and they had kids over all the time. J. wanted S. to be safe. He indicated lots of friends, kids came over all the time. I did not take issue with the credibility of any of this evidence despite the time the Crown spent on this area. It was not unusual to me at all that J. would have taken the lead in instructing D.M. in respect of babysitting S., including instructions regarding the pool.

[104] The accused testified that the golf event in the summer of 1992 that D.M. testified to was a one-time thing.

[105] When he was asked where he was on February 14, 1992, Valentine’s Day, which was identified as being a Friday, the accused stated that he was “more likely at work”. When asked if he distinctly recalled that he was, he stated that “pretty much 100 percent he would be working”. He indicated that this could have been from 5:30 am straight through the night if there was plowing or snow removal as they worked continuously. He believed he was at work because he never missed work. It was put to him that this was a deduction on his evidence and he agreed. When he was asked if he had a specific recollection he answered “it was a Friday and I was working”. Even if it was a Saturday he would have been working, he worked 7 days a week, 24 hours a day and he worked lots, he was very dedicated to his job”. I did not find this answer to be credible. Later on in evidence in the context of the summer of 1992 confrontation with D.M.’s father, he spoke about being involved in hockey and coaching hockey for 12 years as his reason for wanting D.M.’s father to call the police about the accusations. If he really worked this kind of schedule, it is not possible for him to have been so heavily involved in hockey to have this concern, or involved in hockey at all for that matter. Again, for me, it was another example of exaggeration.

[106] In cross-examination, when it was suggested that he did not recall what happened on February 14th, 1992 the accused testified adamantly that he did have a recollection of what happened that day. He would have been working. He was adamant because he never missed work. He went on to say he was working many job sites that day. He developed what initially he admitted was his deduction, to specific recollections. He testified that he knew he was working because he was on the radio; because he gives the directions and the orders and everyone is working with him. It could be up to 10 employees. He would have to take some time to think about who was there at the time. He never turned his mind to this before. He knows who was in the office at the time, namely the office staff. He does not know who he was conversing with that day, either office staff or some of his employees. The accused agreed that he had not taken steps to check his work schedule or who may have been working with him that day. It never crossed his mind to do that. It certainly is not his responsibility to do that, but if he didn’t check, I questioned how he could be 100% sure.

[107] In terms of driving by the Dunn, the accused did this about 10 times a day. It was a common route that would take him from point to point. It was one of the major streets to go across. He serviced lots of apartment buildings in that area. It was a main thoroughfare to cross and it could have been a common way to get to his house he agreed. They did apartments on Chambers and Boundary and pretty much all the east end streets where there were apartments. I noted that the apartments are clearly very close to his house and D.M.’s house and, accordingly, based on his evidence, could put him in the area of his home and D.M.’s home often.

[108] As to being alone with D.M. on February 14, 1992, in his house in the basement and asking D.M. to come and sit down beside him, the accused denied that this ever happened. The accused denied ever being alone with D.M. in his house without his wife being there. The accused denied ever asking D.M. to sit beside him at his house; that she sat down right in the chair with him; that he said to her that he had been dreaming of her; saying to her that he could make her cum with his one finger. He stated he never said that to her. In respect of being in the driveway of her home in his vehicle at which time he said the words to the effect “that if she told anybody he would kill her”, he stated it never happened. These denials were very calmly but strongly delivered. On cross-examination, the accused was consistent with his answers that it was not possible that this occurred, that he drove by the Dunn that day with D.M. and stopped for a coffee. He never bought her a pack of cigarettes. He only ever gave her a cigarette, never a pack. It never happened going back to her house on that day and just the two of them being there. It never happened that they went to the basement. It never happened that he sat on a chair and she sat on the couch and he told her to come and sit with him. It absolutely did not happen that he kissed her on the mouth. It absolutely did not happen that he kissed her anyway. It did not happen that she did not kiss him back. He absolutely did not put his hands down her pants. He absolutely did not put his fingers in her vagina. He absolutely did not tell her that his wife was frigid. He did not tell her that he could make her cum with one finger. He does not recall this ever happening and denied it quite adamantly. He stated that he absolutely never said he would kill her and he would never harm any of his nieces or nephews. He denied that he made a threat because he had done something and knew it was wrong.

[109] It was suggested by the Crown to the accused that he counted himself lucky after that day because life went back to normal. The accused denied that life went back to normal. He indicated he lost his family. It was brought to his attention and he agreed that until the summer of 1992 life was normal and he continued his relationship with D.M. and her family. On this evidence, I was left with the impression that he did not appreciate the question when it was first asked and nothing turned on this.

[110] In February of 1992, around this time, J. was working at Bostons. He did not go home for lunch unless he was driving by or near. J. he believes had a habit to go home for lunch. J. was not asked about this and the accused’s evidence was not contradicted. This evidence combined with the other evidence however did confirm that the accused had a lunch break; confirmed that he not stationary at his employer’s head office, and there were many opportunities during his shift that he would or could have been close to his home, and accordingly close to D.M.’s home based on the evidence regarding the two homes’ locations.

[111] When asked if there was ever a time that he was home alone during the week with D.M., on a weekday, the accused testified he was not.

[112] Regarding his habits of picking up coffee and if he would ever do that, the accused stated that he did that quite often for himself and the guys, meaning the men that worked for him. He would sometimes go and sit in a coffee shop with his men also. When asked if he recalled buying coffee, and D.M. being in his truck, the accused stated that he could have bought her a coffee when he drove her to school and that is all that was going on there. Later, when asked if he ever thought he could have been in a coffee shop with D.M. talking to her, the accused testified that it might have been possible. On cross-examination, the accused testified that they would divert partially on the way to school if they got coffee when he was driving her to school. If he was driving by it was not an uncommon thing for them to stop for coffee. The coffee shop that would have been on the way was Country Style on Trunk Road. It is the same Country Style that is there today. When he was driving his vehicle, he agreed that it was his decision to divert if they did; that he was in charge of the vehicle, either stopping or diverting on the way to school. As to if it was always his decision to stop for coffee, he stated “no”, but if D.M. wanted a coffee he would stop – if she wanted one, and if he did not have one. It was also not uncommon for the accused to ask D.M. on the way if she would like a coffee, and if she said she did not want one he would still go get coffee for himself and his coworkers. If he wanted to get a coffee, he was going to get a coffee. He did not need D.M.’s permission he agreed. From 1991 to 1992, he agreed that D.M. was still a teenager but he did not know her age, when these coffee trips/diversions/rides were happening. He was the only adult in the truck at the time. As to others being with them, he’s not sure but there could have been but he has no specific recollection of anyone else on this date.

[113] The accused on cross-examination testified that D.M.’s parents knew he gave D.M. rides to school because they were told by himself or D.M. He would make sure they knew. His wife also knew. This did not reconcile with his evidence that he could just stop and pick her up if he saw her and did not need permission – family helped each other out. It was also contrary to J.’s evidence that she did not always know where the accused was when he was not in her presence. C.M. believed she knew each time, but D.M. testified that her parents did not know every time she was with the accused, which was realistic based on the arrangement (meaning, he could pick her up without permission).

[114] The accused testified that D.M. never came with him snowplowing. He denied this. “Not ever once” did she go he stated. He stated this was because snowplowing was done during the night and not ever during the day. He plowed regularly. Sometimes friends of his may have come for a few hours riding around to keep him company. The accused’s evidence then expanded. He testified that the snow plow shifts were anywhere from 8 to 30 hours. Obviously if this is the case then he is clearly plowing during the day too and not strictly the night. D.M. seemed to be familiar with the fact that the accused drove from site to site consistent with his described job duties that he testified to. Developments continued in his evidence when he stated that maybe this happened once a month that someone might come with him. How this came to be was that they would just call; they wanted to learn how to plow and do the job and it was not just really to keep him company. He had to be on the radio quite a bit during his shift. Every 15 minutes or so he was probably on the radio over those night shifts. He had to tell certain employees where to go next or deal with problems if they had any problems. That being said, he did not carry on detailed lengthy conversations with them, just relayed instructions to coworkers. I did not find the accused’s evidence on this point credible and it is very plausible that D.M. could have gone on rides with the accused while he was snowplowing.

[115] The accused knew that D.M. smoked. He also smoked at the time. He may have given D.M. the odd cigarette and he did not see anything wrong with it at the time. When asked about D.M.’s statements that he bought D.M. a package of Matinee cigarettes, threw them at D.M. and said “you owe me”, the accused stated that this never happened; he has never bought her a pack of cigarettes.

[116] The accused testified that he knew D.M. was a smoker in 1992 because D.M. told him and he also saw her smoking with other nieces at functions. He does not remember when or where D.M. shared that with him. He was not surprised that D.M. was sharing with him that she was a smoker. It seemed to be a thing that all the kids had to do growing up, everybody tried it he testified. It did not strike him as an intimate detail she was sharing with him because of their relationship. This was just something she as a teenager shared and he guesses this is why he did not have a problem giving her cigarettes. He does not recall where and when he gave her cigarettes, but again indicated it was not very often. It was never at her house because it was just not right. It is not something that his sister would have appreciated. Her parents were strict. He was aware that they were very strict parents and it is fair to say that this is why he did not share with them that he gave D.M. cigarettes.

[117] He does not recall what cigarettes he smoked back in 1992. He still smokes and smokes menthol now. He believes Matinee is a brand. He never smoked Matinee. He smokes menthol now. He does not think it is possible he smoked Matinees. He does not think he ever smoked them. He can’t say for sure. In 1992 he probably smoked Players Light, a very small cigarette, a short one.

[118] Matinee are all sizes he testified. He knew this because he saw them in the stores. However, then he stated the packages were the same, same size packaging. He knew that the cigarettes were different sizes because he smoked short cigarettes. He does not know how he knew that Matinees were not short cigarettes. “They only had a big kind” was his response, he believes. He stated that he does not know - he’s just saying that. The delivery of his answers on this point quite frankly were very awkward as to what he knew and how he knew it. It left me with an impression that he was lying about his knowledge of this brand of cigarettes to distance himself from the allegations.

[119] He and D.M. do not have a relationship. Around Valentine’s Day 1992, he testified that he had a good relationship with D.M. In describing what that meant, he indicated that he had a good relationship in “a family way”. He stated that he would not go out socializing with her at all. I had trouble with this answer because in chief he had answered that it was possible that he may have gone out with D.M. for coffee at a coffee shop.

[120] In respect of the summer of 1992 incident, the accused did not recall how D.M. got to his home that evening. Regarding D.M.’s description of the conversation in the basement of him “asking her if she wanted to do it again” and that he was standing in the doorway of her bedroom staring at her most of the night, that night, the accused denied that this ever happened.

[121] The accused testified that the next day or relatively soon thereafter there was a confrontation at his home and that it involved D.M.’s father and her mother. He recalls her father came over and told him this “stuff”. But then he stated that they did not really get into an argument, they were talking. The accused testified that he does not recall all that was said but he recalls that his last words with D.M.’s father was that he would like D.M.’s father to call the police and to solve this. This was the last time he spoke to D.M.’s father and mother and D.M. On cross-examination, the accused was asked what he meant by that he and D.M.’s father “discussed stuff” and he testified that he did not recall all the details of it. He said it was a long conversation. He asked D.M.’s parents to call the police because he coached minor hockey and he did not want any of “this stuff being missed” because he enjoyed coaching hockey. Before this he coached 12 years and enjoyed working with kids playing hockey. He also played hockey and played with his son, family tournaments. This was important to him. The accused could not recall the exact date of the confrontation because he could not recall everything; whether it was that night or two nights later, he did not know. He agreed it was fair to say he was forgetting some of the details because it was 26 years ago.

[122] I had a hard time believing and did not believe a good portion of the accused’s evidence regarding the confrontation given the nature of the topic that the accused was being confronted with. I had a hard time believing that if someone was accusing him of sexual impropriety regarding his niece that he would only remember if as “stuff” and not remember what was said, other than his suggestion for D.M.’s parents to call the police. Clearly, if he was suggesting that they call the police, they made some serious accusations. Further, it seemed unrealistic to me that D.M.’s parents would be calm. J. described that the accused was angry, that there was an argument and yelling which makes sense to me. I found this evidence to be more credible and likely.

[123] In respect of the babysitting that had occurred prior to the confrontation, the accused indicated that D.M. slept on the main floor because there were no bedrooms in the basement. The bathroom was beside his and J.’s bedroom. The bedroom that D.M. stayed in was six inches away from his and J.’s bedroom doorway. The bedroom D.M. slept in was not at the end of the hallway. The end room was where S. slept. D.M.’s door was six inches away from his bedroom because his bedroom was next to that bedroom. All that there was between them was a six inch wall with a door and a doorway. He slept in the same room with J. The rooms shared a wall.

[124] The accused testified that he did not watch D.M. in her bedroom and would not do so with his wife there six inches away. It is not possible and it never happened. He wouldn’t do it regardless whether his wife was there or not. It never happened. He did not catch when he gave his answer that he was saying he wouldn’t do it with his wife right beside him and qualified that is not what he meant. I felt that his response was genuine and credible that he was trying to make a point that it would not have been realistic or possible that this could have happened in these circumstances.

[125] The summer of 1992 babysitting occasion when he and J. went golfing, he would have to say it would have been a Sunday. It was not explained how he could remember this, and it did not come across as something that he actually remembered.

[126] As to having a discussion with D.M.’s parents about D.M. moving in with him the accused confirmed this happened, but he does not recall when. Regarding the nature of the conversation he testified that D.M. did not want to live at home anymore because she was having a lot of problems. He did not explain what that meant. And in respect of doing anything about this, he testified that he told D.M. that she could live with them but that he had to talk to her parents first. The accused believed he spoke to both parents about this topic. This evidence raised concerns for me in two respects in terms of his credibility. One, if he was only seeing D.M. “once in a while” as he indicated, it did not make sense to me he would consider taking her on at his home. Second, J. did not remember anything about this. One would think that given she was his wife and living with him with S., that she would remember something as significant as the possibility of D.M. moving in with them and/or be part of such a conversation before the accused would approach D.M.’s parents on the topic.

Evidence of C.M.

[127] C.M., age 60, is D.M.’s mother. She is retired after having worked in a nursing home for 30 years. She is married to G.M., D.M.’s father, and has been for 43 years now. They have three children, including, D.M. All of their children resided with them during their childhood. D.M. stopped living with her parents at age 21, when she got married. C.M. is one of 18 children. She is number 17. The accused is her brother. He is the 13th or 14th born. She believes that he is approximately 63 or 64. The accused was also married to her husband’s sister, at one point.

[128] C.M. has no relationship with the accused and it has been this way for 26-27 years. The relationship changed in the summer of 1992 after D.M. disclosed to C.M. that the accused had been inappropriate with D.M. She did not know if it was July or August but she knew it was summertime of that year. Prior to the end of her relationship with the accused, she described the relationship as being “okay” and that they had their “ups and downs”. I did not receive evidence from C.M. that the end of the relationship was connected to the February 14, 1992 allegations.

[129] Prior to and during 1992, C.M. confirmed that her family lived on Boundary Road, in Sault Ste. Marie. She testified that the accused was living on Bowker or Bonker Street. She did not know the actual address but knew it was off of Chambers Ave. As a guess, she testified that the home was maybe a mile from her home, but she did not know. They moved to Boundary Road in 1986. They moved from there on or about 2000.

[130] C.M. confirmed that D.M. turned 16 on January 29th, 1992; was in high school at Mount St. Joseph College in Sault Ste. Marie; and was not employed at this time.

[131] In respect of spending time with the accused, C.M. testified that D.M. spent time with the accused. She explained the meaning of this as follows. The accused would pick D.M. up from school, or if D.M. needed a ride, he would give her a ride. D.M. babysat for them (meaning the accused and J.); and the accused would come over to her home. C.M. testified that the accused had similar relationships with her other children. Also she believed, at this time (presumably 1992), that the accused had a sports car and picked up D.M., and she thought he was just “being an uncle”.

[132] C.M. testified that she never went on any of the rides that the accused and D.M. went on because the rides were usually to and from somewhere like his house, or school or back from school. She testified that there were times when D.M. left with the accused and it was usually to babysit. C.M. testified that she always asked where D.M. was going and she always thought she kept a really good eye on her kids.

[133] When the accused had left his wife A.M. (C.M.’s husband’s sister), the accused also had spent some time at her residence and D.M. thought that the accused was just “being a great uncle”. The accused had already left this wife, prior to D.M. turning 16. It may have been a year before, C.M. did not know. Afterwards the accused met up with and/or got together with J.

[134] D.M. testified that C.M. was aware that she and the accused often spent time together in the sense of “hanging out” together. C.M.’s evidence did not leave me with the impression that she knew that the accused and D.M. “hung out” often (going for coffees or rides or to his home or Bellvue Park). C.M.’s evidence did not give me an idea about how often D.M. spent time with the accused either outside of her home or how often he gave her rides. That being said, this evidence or lack thereof did not necessarily contradict D.M. in that I accept that it could have been that C.M. was not always aware of the details or every time D.M. saw the accused, as D.M. testified. It is reasonable that C.M. might not know every time they were together. It was also clear that D.M. did not tell her mother about other aspects of their relationship. Particularly, C.M, as the accused admitted, was not aware that the accused gave D.M. cigarettes. C.M. was a strict parent.

[135] In respect of babysitting, C.M. testified that D.M. babysat on and off for the accused and J. - maybe on a movie night which started when the accused got together with J., because J. had a son. She did not know or recall when the accused met J. C.M. testified that D.M. started babysitting for the accused before she turned 16. She remembered J. son’s name as S. The babysitting occurred sometimes at C.M.’s home or sometimes at the accused’s home. C.M. did not give evidence about the regular summer time babysitting that D.M., the accused and J. testified that D.M. did. D.M. stopped babysitting for the accused the day that she came home and “told her the story”, namely July or August, sometime in the summer of 1992.

[136] In respect of the day of that disclosure, C.M. testified that the night before, the accused had called, to say that he and J. were going golfing really early in the morning and had suggested/requested that D.M. come and stay the night at his home, if she wanted to, because they wanted to have an early start. C.M. testified that D.M. hemmed and hawed about it but given that it was going to be a 7:00 or 7:30 morning start, D.M. decided to go over to the accused’s home that evening and spend the night. She knows this because she was there at the time (of the call) and she had a conversation with D.M. about it. She doesn’t know who answered the phone, she just remembers the conversation that she had with D.M. about it after. This evidence is consistent with the accounts of D.M. and the accused.

[137] C.M. saw D.M. next when D.M. came home the next day. She does not remember the time. When D.M. came home, she observed that D.M. was upset and not herself. She was crying. When C.M. asked her what was wrong, C.M. testified that D.M. just could not talk, and then said to her, “you would not want to believe it or you may not believe it”. The evidence of this conversation as between D.M. and C.M.’ evidence is different. D.M. testified that she did not say anything to her mother and her mother guessed what was wrong. C.M. further testified that she told D.M. that she would believe anything she told her. C.M. testified that D.M. told her that the accused came into her bedroom and that she pretended to be asleep, and she just kept crying. Again, D.M. testified that she did not say anything to her mother other than “yes” to a question asking whether or not the accused had done something to her, and it was implied that it was sexual.

[138] C.M. further described D.M.’s emotional state on that date as awful. She actually thought she would have to take D.M. to the hospital at one point however D.M. did not want the police involved. C.M. testified that D.M. begged her not to involve the police and so she decided to do it D.M.’s way. As to why, she testified that she tried to give her daughter some peace or tried to protect her and do it her way. C.M. made it clear that she wanted to call police but D.M. did not want her to.

[139] After the disclosure, C.M. testified that she picked up the phone and left a message on the accused’s answering machine that D.M. would not be babysitting anymore and that he was not to call or to come to her home anymore. C.M. testified that a few days later her husband went over to the accused’s residence and confronted the accused. She knows this because her husband came home and told her that he had been there. The accused and J. testified that C.M. was at this confrontation. C.M.’s husband was not presented as a witness in the case. D.M. testified that the confrontation was within hours of the same day of her disclosure to her mother. J. recalled it as being the same day or evening that D.M. had last babysat for them.

[140] Before the disclosure occurred, on cross-examination, when asked about whether any talks occurred between herself and D.M. about D.M. living with the accused, C.M. responded that the accused had approached her and said that D.M. wanted to live with him. She spoke to D.M. about this and asked if this was true. D.M. said “no” and that was the end of the conversation. She expressed this as if D.M. expressed a very strong “no”. She agreed that had D.M. gone to live with the accused, D.M. would have been living with the accused and J. In terms of being able to recall this, she indicated she was able to recall this because later on after the incident she started thinking and she started to piece some things together and realized that there were signs that she just did not see.

[141] C.M. agreed that it was stressful talking about D.M. leaving home and that she was very close to her kids. She agreed it may have been upsetting but that the conversation ended other than asking D.M. what was going on. It was a mother’s nature to have her kids in her own home and she would not have let her live there. D.M., she confirmed, did not ask her to live there. She confirmed that the conversation occurred between herself and the accused. It was a shock to her and in respect of this conversation, she believed it occurred at her home and that the accused was probably there for a coffee. I found it difficult to believe that C.M. would only ask one simple question of D.M. and leave it at that, given that it was a shock to her and that it was stressful and upsetting to her, but nonetheless it was consistent with D.M.’s evidence on this point. Regarding getting along with D.M. during this time-frame, C.M. testified that she had her rough days and times with D.M., like any mother and daughter, and she provided curfews as an example. D.M.’s evidence was similar - that there were no real problems, just normal teenager behaviour.

[142] C.M. did recall approximately two years before trial giving a statement to the police. She did remember telling the police that the purpose for D.M. going over the night before was to babysit as the accused wanted to golf early. When asked about telling the police that the accused had crawled into bed with D.M. and was trying stuff, C.M. first responded that all she said was that he was at, or in, or on the bed, and D.M. was pretending to be asleep. She went on to say that she did not push D.M. that day because D.M. was so upset about it and that was all that she needed to know, to know it was wrong. It was put to her again that she stated the foregoing to police and C.M. responded that she “guesses” that she may have said that. It was put to her again that she said it and C.M. responded, “if that is what I said”, in what would appear to be a seemingly accepting manner that she may have said this.

[143] As to her statement to the police regarding what D.M. had disclosed to her in particular, when she was asked for an explanation regarding why her testimony at trial was different than what was in the police statement, her answer was that “she just knew he [the accused] was in her bed or on her bed and she does not feel she was giving two different answers. She was asked again to explain the difference and to explain why she did not feel that they were two different answers. She took a longer pause. She answered that “she knew he was in the wrong place and he should not have been there”. When she was asked whether the information D.M. provided to her was specific or broad she testified that the information was broad in terms of the details.

[144] C.M. agreed that she put it out there to the family after the summer of 1992 incident that the accused had done something to D.M.; and she did this to protect.

[145] When asked about February 14, 1992, C.M. testified that she does not know where she or D.M. was on that day. She was not asked anything else about this day after this answer.

[146] Overall, as a whole, C.M. was credible but her evidence appeared to me to be affected by the passage of time; she was not accurate in her recall about what she stated that D.M. disclosed the summer of 1992 - her evidence at trial was inconsistent with what she told the police; she did not know any of the particulars of the specific offences before the court, her evidence of D.M.’s demeanor was not connected by her to the specific offences before the court (in time or distress). The observations of D.M.’s upset do not assist me in assessing the truthfulness and credibility of D.M. in relation to the February 14, 1992 allegations because the observed upset could have been in relation to the summer of 1992 incident and that seems to be the way C.M. interpreted it. These observations according to C.M. are 5-6 months post the February 14, 1992 allegations. C.M.’s evidence does not corroborate, assist, and/or rise to a level that allows me to rely on it to ascribe or restore a measure of credibility or corroboration to D.M.’s narrative/account or for me to find on the totality of the evidence the accused guilty beyond a reasonable doubt of the allegations before the court.

Evidence of C.B.

[147] C.B. is 42 and works as an office manager. She has children and lives in the district of Algoma. She has lived in the district of Algoma all of her life. C.B. and C.M. attended elementary and high school together. They were friends. They started their friendship in elementary school, grade 4 and this friendship continued all though out high school. She is still friends with D.M. Her last contact with D.M., she believes was probably on her birthday in May - when D.M. sent her a text wishing her a happy birthday. C.B. also knows M.G. She also met M.G. in elementary school and then went on to continue their friendship at the same high school. She is still friends with M.G.

[148] C.B. was credible. The concerns I had with C.B.’s evidence included reliability of her evidence, lack of compelling detail to corroborate the offences that are before the court, inconsistencies in the evidence, and the use of the demeanour evidence she observed based on her evidence.

[149] C.B. testified that she was aware that she was present to give evidence, about an occurrence (a conversation) that happened when she was around 16 years of age. She did not recall when this happened but did recall that it was the “winter season”. In particular, she recalled that D.M. was babysitting next door to D.M.’s home. She did not recall the name of the people that D.M. was babysitting for. She did not recall how many children D.M. was babysitting at the time. She was there as a friend. D.M. was the babysitter. She testified that M.G. was also there.

[150] C.B. recalls that they had a discussion about D.M.’s uncle and that he had made some “inappropriate advances” towards D.M. She understood from the conversation that D.M. was complaining about her uncle “Mike”, the accused. C.B. knew D.M.’s parents and most of her extended family. She knew when she was referring to her uncle that it was the accused.

[151] C.B. did not explain and was not asked to explain what she meant by “inappropriate advances” - what the advances were or when it happened. C.B. did not testify that D.M. told her that the accused sexually assaulted her or provide any details that confirmed D.M.’s evidence and implicated the accused to a sexual assault on February 14, 1992. C.B.’s evidence was very general and non-specific. I say this keeping in mind that in this case, D.M. testified to two incidents implicating the accused for inappropriate behavior.

[152] C.B. testified that M.G. was present for this conversation. M.G. did not recall this.

[153] C.B. observed D.M. as being very upset and very concerned; that she cried and that she was shaky. C.B. described D.M. during the conversation as being distraught, very emotional and upset and she did not know what to do. In respect of these observations, C.B.’s evidence, in my view did not specifically connect D.M.’s disclosure to February 1992 or the allegations before the court. Again, the accused allegedly engaged in inappropriate behavior toward D.M. on more than one occasion, one being February 14, 1992 and the other being a day in either the spring or summer of 1992. “Winter” when C.B. was 16, as defence pointed out, could mean the winter months in the beginning of 1992 or the winter months at the end of 1992. D.M. testified that her friends used to come over often when she babysat at this house which does not assist to isolate the conversation as having occurred on February 14, 1992.

[154] C.B. testified that she had met the accused before that day (meaning the disclosure day) but does not recall how many times. She believes she came into contact with him at D.M.’s family’s home but doesn’t recall specifically. After that day she does not recall specifically any incident when she was out with D.M. in the presence of the accused again but talked about being out one night walking when they saw a Red Star van where she believed the accused used to work and she tried, that is D.M., to hide thinking it was him. She doesn’t recall specifically when this was but believes it was a few months after D.M. told her about the incident but she is not sure. In respect of this evidence, the accused never worked for Red Star. In terms of the disclosure, if the conversation took place February 14, 1992 as the Crown wishes this court to find, it is important to note that D.M.’s evidence was that everything went back to normal in her relationship with the accused until the summer of 1992, so this evidence would not make sense or reconcile, unless the conversation took place in the later winter months of 1992. Accordingly, I am not able to find that the observations were shortly following the offence to be useful to credibility or to corroborate D.M.’s account of the February 14, 1992 allegations to the level of corroborating the truth of D.M.’s account. As to the depth of the distress, again, if the observations were made by C.B. after the summer of 1992 incident, the observations and the depth could be related to the summer of 1992 incident based on D.M.’s account and/or based on C.M.’s account of D.M.’s disclosure to her.

[155] C.B. testified that she tried to comfort D.M. and be there as a friend and suggested that D.M. speak to her mother. C.B. does not recall M.G’s response specifically to D.M. on that date. C.B.’s evidence of her response did not match D.M.’s evidence of her response. D.M. testified that C.B. said nothing.

[156] After the information was shared by D.M., C.B. was around D.M.’s parents and family. She did not notice anything specifically changing with the family and the dynamics and who they socialized with after that. It did not appear to me that C.B. was aware of or recalled the family rift that arose following the disclosure to D.M.’s mother in the summer of 1992.

[157] In sum, I do not agree or find that C.B.’s evidence corroborates, assists, and/or rises to a level that allows me to rely on it to ascribe or restore a measure of credibility or corroboration to D.M.’s narrative/account or for me to find on the totality of the evidence of the accused guilty beyond a reasonable doubt of the allegations before the court.

Evidence of J.

[158] As a preface, I note that I did not have any credibility concerns regarding J.’s evidence. She presented as forthright and she responded to all questions. I believe and accept her evidence. That being said, there were times that details were not provided or asked of J. I am not suggesting that it was necessary for the Crown to ask for same, but it was a consideration for me in analyzing the evidence in determining if her evidence corroborated or contradicted another witness’ evidence, in examining the evidence of the other witnesses, and the weight, if any to give to J.’s evidence in reviewing the totality of the evidence.

[159] J. is 62 years of age. She works for the City of Sault Ste. Marie and has been working for them for 15 years, running the box office at the arena. She has one child, namely S. The accused is her ex-husband. She believes she met the accused in 1989. She had S. at the time, he was age 6. She and the accused married in 1994. They separated in 1999. Before marriage they lived together in a common-law relationship. She last spoke to the accused in 1999. J. knew D.M., J. was at one time D.M.’s aunt by marriage, meaning her marriage to the accused.

[160] In 1992, J. believes that she, S. and the accused were living on Bowker Street. Sometimes they had Greyhound players living with them from time to time, but that would have been after 1992. She believes they may have moved to or started living on Bowker in 1991. She believes they lived there until about 1997. After Bowker Street they moved just around the corner to a home on Jemmette Street. The house that they resided in on Bowker Street was a single-family dwelling, namely a bungalow. When they moved out of Bowker Street, she, S., the accused and some Greyhound billets were living at that home.

[161] In terms of seeing D.M., J. testified that they saw D.M. quite often. J. did not expand as to what that meant, or when, or where, or the circumstances (such as who that included), nor was she asked to elaborate. D.M. stated she had a close relationship with both J. and the accused.

[162] In terms of babysitting S., J. testified that D.M. babysat from about 1991, and that she had babysat for them for a couple of years. It was “every once and a while” in the evenings, and in the summer; D.M. was a summer babysitter while J. was working. At the time, J. believes she was working at the Boston car dealership. The accused was working for And Son Contracting. Both of them worked full-time. J. testified that D.M. babysat more in the summer, most of the days, and during other seasons D.M. babysat casually but she does not remember exactly. The accused’s evidence was the same or similar on these points.

[163] D.M. babysat S. and no one else for her. She does not remember how D.M. came over to her home to babysit. She testified that she believed that D.M. either walked or rode her bike because she did not live too far away. Either she or the accused would let D.M. know when they wanted her to babysit. There was no one person at the time that she could remember that arranged the babysitting.

[164] J. testified that D.M. stopped babysitting, in 1992 when D.M. was either 15 or 16 years old. She could not remember the exact year. She did not remember the season but knew it was not winter because she remembers being outside, and it was clear out. In particular, she recalls that there was an argument outside of her home on Bowker Street. She was present for the argument. She does not know what time of day this occurred. She testified that she, the accused and D.M.’s parents were present. J. observed that D.M.’s parents were very upset and that they were making accusations regarding D.M., and D.M. having told her mother that something had happened – “an incident one day or evening”. As this confrontation was going on, in terms of the accused’s response, J. observed the accused to be angry. She recalls lots of yelling and that it ended. She does not know how she knows this but she does not believe it became physical as far as she could remember. That day or that night of the argument was the last time that D.M. babysat. She does not remember why D.M. had babysat that day or evening. She only has a recollection of D.M. babysitting that day.

[165] J. corroborates that there was a disclosure in the (non-winter months) when D.M. was either 15 or 16; the confrontation; and that it was about an accusation that “something” had happened involving D.M. and the accused. However, her evidence offers no assistance in outlining what “something” meant other than to say she understood that there was an incident one day or evening – a single incident by her evidence. The charges outlined by the Crown are specific to February 14, 1992. The evidence at the trial referred to allegations of two incidents. J. places D.M.’s mother there which is not consistent with D.M.’s mother’s recollection, but in my view, overall, J. gives the most realistic account of the interaction in light of the circumstances. It makes sense there would have been arguing and yelling.

[166] Before that evening, J. testified that her relationship or their relationship with D.M.’s parents was good. They spent lots of time with them. After that they did not see them. In D.M.’s immediate family she was aware that there were three children and her parents. She had relationships with other members of the family as well. J. was not asked to elaborate about the breakdown of the relationship or anything else she may have known.

[167] In terms of being aware of where the accused was when he was not in her presence, J. indicated that she was not aware of where the accused was when he was not in her presence. This evidence contradicts the evidence of the accused in one sense, namely his evidence that he would make his wife aware of any time he spent with D.M.

[168] J. was not asked about her work day and whether or not she went home for lunch. She was not asked if she was aware of whether the accused and D.M. spent time alone together, getting coffees and/or going for rides – whether they “hung out”. J. was not asked about whether or not she had any knowledge of D.M. ever being at her home with the accused when she was not there. J. was not asked if she had any recollection of any of the events occurring on the evening that D.M. came over and stayed the night; or where J. slept or where the accused slept, if he slept. J. was not asked where D.M. would have slept or about the layout of the Bowker Street home.

[169] As far as J. knew, the accused worked only for And Son at the time. She confirmed he was in construction and that he would also plow driveways in the winter. If it was a bad winter, he would be out most nights. While J. corroborated that the accused would be out often if it was a bad winter, I don’t know if February of 1992 was a bad winter on the evidence I received. J. was also not asked by the Crown to elaborate about the accused’s work schedule and work duties that may have been within her knowledge. That being said, the accused’s evidence included that his duties found him driving from job site to job site; snowplowing during the day and not just at night; and he was not being stationed in one place throughout the day.

[170] On cross-examination when J. was asked about any conversations and/or being present for any conversations concerning D.M. not liking living at home and wanting to live somewhere and maybe with them, J. had no recollection of any such conversations. J.’s evidence does not corroborate the allegation of motive to lie and caused me to question the accused’s evidence on this point, as stated in my analysis of his evidence.

Evidence of M.G.

[171] M.G. is 41 years of age. She works for the Canadian Institute for Health Information. She has three young children. She was born and raised in Sault Ste. Marie. She lived in Sault Ste. Marie from birth to approximately age 18. M.G. attended Notre Dame Des Ecole for grade school and Mount St. Joseph College for high school. She confirmed that she knew D.M. and that they had become friends the first week of high school, in grade 9. They were very close throughout high school. After high school M.G. moved away. After M.G. moved away she and D.M. lost touch which was approximately in M.G.’s early 20’s. The last time she had contact with D.M. was when D.M. reached out to her about maybe a year or a year and a half ago (she does not know when) by Facebook messenger explaining what was happening with the trial and asking if she was willing to be a witness on her behalf. M.G. testified that she also knew C.B. She and C.B. were also very good friends in high school, friends since grade 9. She still sees C.B. from time to time when she returns home to Sault Ste. Marie for a visit.

[172] M.G. testified that she believed she was before the court to appear as a witness and that it was regarding a time when she and D.M. were in high school when there was an incident that occurred that involved D.M.’s uncle sexually assaulting D.M. She believed she was one of the first people D.M. told and she was asked to give evidence on that.

[173] I found that M.G. was credible. Truthfulness was not an issue. My concerns regarding her evidence were essentially the same as those I had with C.B.’s evidence (outlined above) but with a greater concern. The reason for that was that M.G.’s account of D.M.’s disclosure in terms of place, the circumstances under which the disclosure happened, the details (or lack of details), and who was present, was dramatically different from both D.M.’s and C.B.’s accounts.

[174] When M.G. was asked about when she first heard about this, she started her response by saying it was a long time ago, closing in on close to 30 years. She testified that she “wanted to say” that this occurred when they were about 14 or 15 years old. She could not pinpoint the exact date or time. They were in high school. M.G. testified that she and D.M. were in the bedroom in the basement of D.M.’s parents’ home when the conversation took place. She testified that she did not honestly recall if anyone else was there. M.G. spent lots of time at D.M.’s house when she was in high school because they were very close. It would not have been unusual for her and D.M. to be hanging out on any given day so she can’t remember specifically why she was there and testified that she was “guessing” it was just to hang out together. This was not her first time in D.M.’s bedroom in the basement.

[175] M.G. knew D.M.’s parents well because she spent lots of time at their home when she was younger. She described D.M.’s family as having been like a second family in some ways to her. M.G. does not recall where D.M.’s parents were when D.M. made the disclosure to her. All she can say is that they were not in the bedroom basement. M.G. knew that D.M. had quite a large family but she definitely did not know them all. She knew she had aunts and uncles, a grandmother, and all sorts of extended family.

[176] M.G. does not remember D.M.’s exact words or if D.M. even named names during the disclosure conversation but somehow she knew D.M. used to babysit for D.M.’s aunt and uncle at the time. Whether D.M. called the accused by his exact name and implicated him on this occasion, she cannot tell us. She can only tell us that somehow she came to know it was the accused. When M.G. was asked to essentially confirm that she could not recall how she came to know that the incident involved the accused, she repeated that she could not specifically remember D.M. naming names that day and apologized.

[177] M.G. testified that during this disclosure she observed that D.M. was crying, very emotional, and very upset. M.G. indicated that she knew something was very wrong but she did not know what at that exact moment. M.G. testified that D.M. was upset because of “something” that happened to her. The reason that she knew this was because D.M. shared the events with her once D.M. could collect herself to do so. “Collect herself” to M.G. meant that D.M. was crying quite hard and she was not able to verbalize what was going on in those moments and she was visibly upset. M.G. did not explain what the “something” was.

[178] Defence put to M.G. in cross-examination that it sounded like that she came away from the conversation “with D.M. essentially saying that whatever happened between D.M. and the accused may have happened when D.M. was babysitting”. M.G. responded that to the best of her recollection, this was correct. This of course, is not consistent with the February 14, 1992 allegations.

[179] I noted that some of the circumstances that M.G. testified to, including her understanding that the incident happened while D.M. was babysitting, was consistent with some of the summer of 1992 allegations. The summer of 1992 incident was 5 to 6 months post the offences before the court in terms of the timing of M.G.’s observations. It follows that if the observations were related to this incident, that the observed depth of the distress could equally be interpreted as being related to this incident based on D.M.’s account and/or based on C.M.’s account of D.M.’s disclosure to her.

[180] In terms of a change in the family thereafter, M.G. testified that she knows that at some point a family rift arose. D.M. and her family distanced themselves from her uncle. She knows that there was some extended family dynamics at play but couldn’t tell us the specifics of that. It was sometime after the disclosure conversation that the rift happened, but she could not exactly say when. This rift follows the summer of 1992 incident, not the February 14, 1992 occurrence and I did not receive evidence from C.M. or D.M. that it was connected to the February 14, 1992 allegations.

[181] In sum, based on the above, I do not agree or find that M.G.’s evidence corroborates, assists, and/or rises to a level that allows me to rely on it to ascribe or restore a measure of credibility or corroboration to D.M.’s narrative/account or for me to find on the totality of the evidence the accused guilty beyond a reasonable doubt of the allegations before the court.

CONCLUSION

[182] Based on the above and the instructions in W.D., the accused is entitled to an acquittal. He is accordingly found not guilty on all of the charges.

Rasaiah J.

Released: December 19, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

M.R.M.

REASONS FOR JUDGMENT

Rasaiah J.

Released: December 19, 2018