CITATION: R. v. C.E.C., 2019 ONSC 1166
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R.
AND:
C.E.C.
BEFORE: The Honourable R. J. Harper
COUNSEL: Derek Zuraw, Counsel, for the Crown
David Connally, Counsel, for the Accused
HEARD: February 19, 20 and 21, 2019
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR JUDGMENT
Issues
1This case involves allegations of historical sexual assaults that allegedly took place approximately 40 years ago. There are two counts of indecent assault contrary to section 156 of the Criminal Code of Canada.
That C.E.C. indecently assaulted J.A.S. between January, 1972 and December 31, 1975,
That he indecently assaulted N.B. between January 24, 1975 and March 23, 1977 at the City of Brantford, Ontario.
2The Crown brought a pretrial Application seeking to allow the trier of fact to use the misconduct committed against the one alleged victim to corroborate the allegations of the other. On July 23, 2018 I allowed the Crown’s Application for discreditable conduct to be used cross indictment. Given this ruling there was a consent to have these two counts tried together. I will expand on this later in this judgment.
3For the purposes of these oral reasons I will refer to the complainant, J.A.S. as (S.) and the complainant N. B. as (B.). C. E. C. will be referred to as (C.).
4J.A.S. was born on […], 1958. He was 60 years of age at the time of the trial.
5N.B. was born on […], 1967. He was 51 years of age at the time of trial.
6C.E.C. was born […], 1951. He was 67 years of age at the time of the trial.
The J.A.S. Allegations
7J.A.S. met C.E.C. through their involvement with the Boy Scouts of Canada when J.A.S. was 14 years old. J.A.S. was a regular scout, at the time he met C.E.C. and C.E.C. was a scout leader. When they met, J.A.S. was in a different scout troop. C.E.C. asked him to transfer to the troop that he was in.
8J.A.S. transferred to the C.E.C. troop. It was called the 4th Brant St. James Troop. This was an Anglican Church affiliated Scout Troop that C.E.C. was a leader in. Although J.A.S. started as a regular Scout when he transferred, he later became an assistant leader.
9According to J.A.S., C.E.C. was approximately 10 years older than him at that time. However, other documentary evidence showed that C.E.C. was 7 years older than J.A.S. I do not find this discrepancy significant under all of the circumstances.
10J.A.S. stated that there were approximately 12 to 14 members of the troop and the scouts were between 12 and 14 years of age.
The Normandale Trip
11Scouts would go on trips from time to time. One of the trips they went on was to a place called Camp Normandale that was located on Lake Erie. J.A.S. testified that he went to C.E.C.’s home in order to prepare for one these trips. He was not able to recall the time that this happened other than it was after he transferred to 4th Brant Troop. On this occasion he and C.E.C. loaded up C.E.C.’s car at C.E.C.’s residence. At the time, C.E.C. was living
in a single family dwelling on Tom Street in the City of Brantford. C.E.C.’s mother also lived at this home at that time. One of the scout application and member lists that were filed in evidence indicated that C.E.C.’s address was on Tom Street in Brantford.
12J.A.S. stated that since they were going to leave early in the morning he stayed at C.E.C.’s home that night. According to J.A.S. when he fell asleep he was wearing his underwear. At some point during the night he felt C.E.C.’s hand on his genitals outside of his underwear. Eventually, C.E.C. put his hand inside his underwear and fondled his penis and testicles.
13J.A.S. testified that, while C.E.C. was fondling him, he pretended to be sleeping. He also stated that when he woke up in the morning nothing was said by anyone about the incident. J.A.S. insisted that he did not want this to happen.
Incidents at the Camp
The Dining Hall
14J.A.S. testified to a number of incidents that occurred while they were on various scouting trips. He could not recall the sequence that they occurred.
15At Camp Normandale, there was a dining hall that was also used to sleep in. According to J.A.S., one night while they were sleeping in that hall in separate sleeping bags, J.A.S. woke up to see C.E.C. masturbating himself while approaching him. According to J.A.S., C.E.C. tried to push his penis into his mouth while he was ejaculating. J.A.S. stated that some ejaculation went on his face and some in his mouth. Nothing was said by anyone after the incident and C.E.C. went back to his sleeping bag. J.A.S. stated that he cleaned himself off and went back to sleep.
16When he woke up in the morning nothing was said by anyone to anybody.
17J.A.S. had no recollection if other scouts were sleeping in the same hall.
Incident in the Tent
18On another scout trip, J.A.S. stated that he and C.E.C. were in a tent. He stated that they were in separate sleeping bags. J.A.S. awoke to find that C.E.C. had unzipped his sleeping bag and was fondling J.A.S.’s genitals outside his underwear at first. He then put his hand inside his underwear and then fondled his genitals. J.A.S. stated that, as in the other incidents he gave evidence about, no one said anything when they woke up. J.A.S. could not remember if anyone else was in the tent.
The Rooming House Incident
19At a certain point, when J.A.S. was approximately 16 years old, he stated that he had left his parents’ home as a result of an argument he had with his sister. He moved to live in a rooming house on Chatham Street in Brantford. His living area consisted of 3 rooms. A living room, bedroom and a kitchen. The bathroom was shared by others and it was downstairs from where he lived.
20J.A.S. stated that C.E.C. came over to his rooming house on one occasion. According to J.A.S., C.E.C. went to sleep in J.A.S.’s bedroom and he slept on the couch in the living room. J.A.S. testified that at some point, while he was sleeping, C.E.C. came into the living room, picked him up and brought him to the bedroom. He laid J.A.S. on the bed and took off his underwear and performed anal sex on him. He stated that he did not want this to happen and C.E.C. did ejaculate in him.
21After C.E.C. ejaculated, J.A.S. stated that C.E.C. wiped himself off with J.A.S.’s socks and underwear and carried him back to where he was sleeping on the couch. Once again no one said anything after this incident.
22In cross examination, J.A.S. admitted that he had made an earlier statement to police that C.E.C. had been to his rooming house on two occasions. He stated that he did not recall saying that to the police and he can only recall the one occasion that C.E.C. stayed over at this rooming house. I do not find this inconsistency of any significant to the core issues in this case. It is a peripheral detail. He made the statement to police over 5 years ago and the only thing he could remember was the one incident when he testified at this trial.
23In addition, counsel for the Defence conceded that there were no inconsistencies in the evidence at trial with respect to either complainant that went to the core issues in this case.
N.S.
24J.A.S.’s ex-wife, N.S., testified. She stated that she and J.A.S. were married for approximately 12 years. She confirmed that J.A.S. had told her about some concerning events that happened when he was young. J.A.S. told her this around the time he went to the police to tell them. N.S. stated that J.A.S. gave no details, he only told her that something inappropriate had happened to him by someone who was looking after boys.
N.S. encouraged J.A.S. to tell the police. N.S. never talked to the other complainant in this case. There was no evidence that she could have related any information to anyone that may have allowed for collusion or contamination of the evidence.
K. P.
25K.P. was the wife of a former scout. She was in the same group therapy session that J.A.S. was in. K.P. was dealing with anxiety and depression over the death of her husband, J.P., in 2005.
26At one of the group sessions K.P. told J.A.S. that J.P. was her husband. J.A.S. knew J.P. as a member of the scout troop he was in. K.P. asked J.A.S. if his depression and anxiety was due to C.E.C.; J.A.S. told her his depression and anxiety was not due to C.E.C. At this time he did not give any details to K.P. or even acknowledge that he was sexually touched by anyone.
27K.P. testified that several years after the therapy session referred to above J.A.S. got in touch with her through Facebook. After that contact was made, they both met at a Tim Horton’s. On this occasion, J.A.S. told her that C.E.C. inappropriately touched him when they were scouts.
28According to K.P., J.A.S. told her that he was looking to others who may have been affected by C.E.C. J.A.S. asked K.P. if she had any pictures of the scouts at that time he and her former husband was a scout. He stated that he had thrown all of the pictures out because he did not want to remember what happened.
29There is no evidence that K.P. knew any details of the alleged incidents. Nor did she know the other complainant. She never had any discussions with the other complainant that may have led to any collusion or contamination of the evidence.
The N.B. Allegations
30N.B. testified that he played on a church hockey team in Brantford that was coached by C.E.C. between 1975 and 1977. He was 10 or 11 years old at the time.
31N.B.’s parents owned a restaurant in Brantford and worked 7 days a week for long hours each day. As a result of their work they arranged for his coach, C.E.C., to take N.B. to games and practices.
Incident Prior to Hockey Activity at the Civic Centre
32N.B. testified that, on one occasion, he had an early morning practice and his family made arrangements with C.E.C. to allow N.B. to stay overnight at C.E.C.’s home in order for him to get to that practice at the Civic Centre in Brantford.
33N.B. stated that when they arrived at C.E.C.’s home they were the only ones present. C.E.C. offered him a drink. He testified that the drink was a rye and ginger. He recalled that the drink had some white powder in it. He did not say anything and drank this beverage.
34According to N.B., he must have passed out. All he could remember was waking up to the pain of C.E.C. having anal sex with him. He stated that he was petrified. He passed out again and woke up in the morning still in C.E.C.’s bed. He looked down at C.E.C. and C.E.C. looked up at him just staring. N. B. stated that he was so scared he did not know what to do or what to say. He pretended nothing happened and he went to the hockey practice.
Incident at the Oshawa Tournament
35N.B. went to a hockey tournament in Oshawa, Ontario. He was driven by C.E.C. He recalled someone else was also in the car. However he could not remember who it was.
36This was a weekend tournament and N.B. stayed in C.E.C.’s room. No one else was in the room. N.B. stated that C.E.C. gave him a drink of alcohol and he fell asleep. He woke up to C.E.C. having anal sex with him. Once again, N.B. stated that he was petrified and did not know what to do. He did not say anything and played the hockey games at this Oshawa tournament.
37The next tournament was in London, Ontario and N.B. would not attend that tournament. He also did not play hockey again. According to N.B., C.E.C. tried to communicate with him four years later by asking him to be a friend on Facebook. N.B. declined to be his friend.
Disclosure of the Allegations
38N.B. stated that he told his ex-wife, T. B., and a friend, N.S., who was a police officer. He stated that he told his ex-wife and his friend some of the details. He also stated that he did not want either of them to tell anyone.
T.B.
39N.B.’s ex-wife, T.B., stated that she and N.B. have been separated since 2005. She stated that, at some point early in their marriage, in or around 1995 or 1996, he told her that some “disturbing stuff had happened to him” when he was young. He did not volunteer any further information.
40T.B. pressed him about what had happened. She asked him directly if he was molested and he stated yes he was. After that he did not want to talk about it. He was very distraught when talking about it. T.B. continued to ask him. He told her it was his hockey coach, C.E.C. He would not give T.B. any details at that time.
41T.B. stated that the issue came up again in 2005. All N.B. would tell her was that he was molested by his hockey coach but he would not get into detail. T.B. stated that he was very distraught when talking about it.
42When there was an article in the newspaper on June 15, 2015 about C.E.C. being charged with an indecent sexual act on a boy scout, N.B. showed her the article. At that time, T.B. pushed him to go to the police.
43There is no evidence that T.B. knew the other complainant nor did she provide any information about this case to anyone that may have allowed for collusion or contamination of the evidence.
Similar Fact Across Counts
44The Crown brought an application to have admitted evidence of J.A.S. and of N.B. to be considered as similar fact evidence across counts. I ruled that the evidence of the alleged incidences were sufficiently similar, there was no evidence of collusion and there would be no prejudice to the accused if this evidence were admitted. For the purpose of these reasons, it is helpful to review some of the findings that relate to this issue.
Similarities
45I made the following findings:
a. Both complainants were young children. N.B. was between 10 and 11 years of age and J.A.S. was between 14 and 16.
b. C.E.C. was in a position of trust and authority for both N.B. and J.A.S. He was N.B.’s hockey coach and he was J.A.S.’s scout leader.
c. Both N.B. and J.A.S. were alone with C.E.C. during the allegations of sexual incidents involved.
d. Both boys were initially not conscious, either due to a substance or being asleep.
e. In both cases there were incidents of genital fondling and anal intercourse.
f. Neither N.B. nor J.A.S. knew each other.
g. Neither complainant ever talked to the other or any of the other witnesses in this case.
h. Neither complainant knew the specifics of the allegations of the other.
i. The only knowledge that N.B. had relating to the allegations and charges relating to J.A.S. was the brief article in one of the Brantford Newspapers that he read on May 6, 2015.
j. The only articles that were published were filed as exhibits along with the press release issued by the Brantford Police Services. Sergeant Davis testified that the articles were an accurate reflection of the press release that he caused to be issued. I find that there is nothing in the press release or any of the articles published that would in any way contaminate the allegations of one complainant with the other complainant. The release reads as follows:
On May 6, 2015 the Brantford Police Services arrested a 64 year old former Scout Leader from Brantford. An investigation commenced after the victim, now a 56 year old man reported being sexually abused by the accused over 40 years ago.
The victim reported being befriended be the accused a Scout Leader in early to mid-1970. The victim reports that the abuse took place in several locations while in Scout activities as well as at personal invitation to the accused home. The victim reported that on one occasion the sexual abuse took place during a group Scout Troop trip to England. The offence tool place between 1972 and 1975.
C.E.C., 64 years of age (formerly of Brantford) now of Port Hope is charged with the following:
Gross Indecency
Indecent Assault on a Male
Prejudice
46I agree with the Crown’s submission that this evidence does carry a moral prejudice given the serious nature of the allegations regarding each of the two alleged victims. However, the fact that the alleged abuse is roughly of the same level of seriousness also reduces the moral prejudice. If the alleged sexual abuse against one alleged victim were very serious and the alleged sexual abuse against the other alleged victim were relatively minor, there would arguably be a high degree of moral prejudice that would accrue to the accused, as the trier of fact might be more included to convict of the less serious offence just because of the horrific nature of the other, more serious offence.
47Most importantly, the risk that C.E.C. would be convicted solely on the basis of his general bad behaviour is not significant (moral prejudice is not a significant concern) in a judge alone trial.
48In the recent case of R. v. J.H., 2018 ONCA 245, the Ontario Court of Appeal made the following instructive comments commencing at paragraph 20:
20I disagree. “The judge’s task [was] not to add up similarities and dissimilarities and then, like an accountant, derive a net balance”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60. The question is whether there were connecting factors between the alleged assaults, and whether there was a “persuasive degree of connection between the similar fact evidence and the offence charged”: Shearing, at para. 48. The trial judge concluded that there was such a connection.
21Here, the context in which the alleged behaviour occurred was similar – the appellant was a parent or step-parent of each complainant, in a position of trust or authority, and engaging in sexual touching in the home. As this court noted in R. v. B.(L.)(1997), 1997 CanLII 3187 (ON CA), 116 C.C.C (3d) 481 (C.A.), at para. 37, “in cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents”. While there were some differences between the sexual acts described, and while S was older than the other complainants at the time of the assaults she recounted, this does not materially diminish the level of connectedness that would make the evidence on other counts admissible on the question of whether a particular assault took place. See for example R. v. R.B. (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.), where this court upheld a trial judge’s similar fact ruling on evidence across counts notwithstanding that the assaults described by two of four complainants occurred when they no longer lived in the appellant’s home, and where the types of sexual misconduct varied between complainants. The similarity or connectedness was in the fact that the assaults occurred when the appellant was a father figure, beginning in the appellant’s home while the complainants were vulnerable (at paras. 13 to 16). Finally, in the present case the probative value of the evidence was significant, and its reliability was enhanced by the fact that the appellant admitted certain abusive conduct in relation to each of C, D and S.
22The appellant’s third argument on the similar fact evidence ruling is that the trial judge erred in failing to dismiss the application on the basis that the prejudice caused by such evidence outweighed its probative value.
23I disagree. Prejudice in the similar fact context involves the two distinct concepts of reasoning prejudice and moral prejudice: R. v. T.B., 2009 ONCA 177, 243 C.C.C. (3d) 158, at para. 26. This was a non-jury case where the similar fact evidence related to the counts in the information and the evidence was already before the court.[2] As noted by this court in T.B., at para. 27, there is little risk of reasoning prejudice in a judge-alone case, as the trial judge is presumed to know the law and the proper and improper use of evidence.
24Further, the risk that the appellant would be convicted solely on the basis of his general bad behaviour (moral prejudice) is also not a significant concern in a judge-alone trial: T.B., at para. 33. See also: R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at paras. 56, 68 and 69. And, both moral and reasoning prejudice are significantly reduced in a “count-to-count” similar fact application, as the evidence is admissible independent of its status as similar fact.
49In this case I find the connectedness of the evidence is substantial and the similarities are significant. There has been no evidence at trial that would change the ruling I made in the pretrial application. When I asked both Crown and Defence if any of the pretrial issues relative to the Crown’s Application in this regard needed to be addressed, both counsel indicated that they did not.
50The evidence at trial has only confirmed the findings of similarity and connectedness, the lack of collusion and that if there were any prejudice, and I find there is none, the probative value outweighs any prejudice. The evidence relating to both complainants may be used cross counts.
Analysis
51My task is to conduct a reasoned review of all of the evidence. The Defence submits that the evidence does not rise to the level in which I can find that either complainant’s testimony is reliable enough to allow for a conviction beyond a reasonable doubt. The Defence does not challenge the credibility of either complainant. Nor does the Defence submit that any inconsistencies in the evidence relate to the core issues in this case.
52The Defence concedes that to the extent that I may find a slight variation in the time frame as to when the incidents alleged may have occurred with the time set out in the Indictment it has no significance. There is no need to amend the indictment.
53In addition, if I find that the accused committed the act alleged with respect to J.A.S., those acts would constitute indecent assault as set out in the indictment.
Credibility and Reliability
54In R. v. W.(R.) 1992 CanLII 56 (SCC), [1992]S.C.J. No.56 the Supreme Court of Canada made the following comments with respect to the assessment of the evidence of an adult testifying about events that occurred or are alleged to have occurred when they were children:
26In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
55There is a distinction to be made between a witness’s credibility and reliability. As stated by the Court of Appeal in R. v. H.C., 2009 ONCA 56 at para. 40:
40The appellant’s reproach does not portend a forced march through the precedents. Nonetheless, a brief reminder of some basic principles will not go amiss.
41Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. 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: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).
56In this case I find both J.A.S. and N. B. to be credible witnesses. I agree with the submissions of the Crown that both witnesses testified in a manner that was straightforward and forthright. Neither was evasive and each of them answered all of the questions to the best of their ability.
57As stated above, the Defence does not question either complainants’ credibility. The Defence relies almost exclusively on the submission that neither of the complainants’ testimony is reliable.
Reliability
58The Defence argues that both complainants were either asleep or otherwise unconscious when the alleged incidents occurred. As a result of being in that state their evidence is unreliable with respect to what occurred on the evenings in question. I reject that submission.
59With respect to J.A.S.’s evidence, he testified that, at some point, he met C.E.C. through scouting. C.E.C. was a scout leader and J.A.S. was a regular scout who later became an assistant leader. The Application for membership in the Boy Scouts of Canada and the Registration Mailing List forms filed as exhibits shows that J.A.S. was a member of the Boy Scouts of Canada from 1970 through 1976.
60The same documents show C.E.C. was a member from 1972 through 1975. In addition, his LinkedIn web page that was filed as an exhibit, on consent, shows that he was a scout leader and District Commissioner Scouts Canada. It further indicates that he spent 5 years as a Troop Leader travelling with his Troop.
61I find that J.A.S. and C.E.C. were in the same scout troop from at least 1972 until 1975.
62J.A.S. gave 4 incidents that he could recall in which C.E.C. engaged in sexual activity with him.
63The first incident that J.A.S. related occurred at C.E.C.’s residence. He stated that he had fallen asleep but he was awaken by feeling C.E.C. fondling his genitals. First over his underwear and later inside his underwear. J.A.S. stated that he pretended to be asleep and he said nothing either at that time or in the morning.
64I find that J.A.S.’s account of this incident was not impeded by any form of unconscious state. He clearly stated that he awoke to the fondling of his genitals but he pretended to be asleep.
65The next incident involved a camping trip to a scout camp at Normandale. He slept in the room that was used as a dining hall and a place to sleep. J.A.S. stated that, once again, he woke up and saw C.E.C. masturbating and then trying to push his penis into his mouth. He ejaculated partly in his mouth and partly on the side of his face. J.A.S. stated that he cleaned himself off and said noting after the incident.
66I find that there are no circumstances, in this event, that would limit J.A.S.’s ability to recall, observe and recount.
67The third incident he related was in a tent. He stated that he was in a separate sleeping bag and he was again woken up by C.E.C. unzipping his sleeping bag and fondling J.A.S.’s genitals, at first, outside his underwear and then inside his underwear. He pretended he was asleep during this incident.
68I find that there are no circumstances in this related event that limits J.A.S.’s ability to observe, recall and recount this incident.
69The last incident related by J.A.S. occurred in a rooming house he lived in after he moved out of his parents’ home when he was 16. On this occasion. C.E.C. spent the night in this three room home. He slept in the living room on the couch and C.E.C. slept in J.A.S.’s bedroom.
70On this occasion, J.A.S. stated that he was asleep and C.E.C. came to where he was sleeping and picked him up and carried him to the bedroom. J.A.S. stated that he woke up when he was being carried into the bedroom. C.E.C. laid him on the bed face down and took his underwear off and had anal sex with him to the point that he ejaculated. J.A.S. stated that C.E.C. used J.A.S.’s sock and underwear to clean himself off and then carried him back to where J.A.S. was sleeping.
71I find that there are no circumstances in this related event that limits J.A.S.’s ability to recall, observe and recount.
72J.A.S. testified that he did not want any of the related sexual encounters.
73J.A.S. admitted that he suffered from anxiety and depression. There is no evidence that either of those conditions would have a negative impact on J.A.S.’s ability to observe, recall and recount the incidents referred to.
74J.A.S. stated that he tried to put all of this out of his mind. To that end he got rid of all of the pictures that he had when he was a scout. When he decided to come forward to the police he wanted to try to remember more and asked K.P. if she had any pictures of the time that he was a scout. K.P. was part of a group getting therapy for anxiety and depression that J.A.S. was also in. K.P. was the wife a member of J.A.S’s scout troop, J.P. K.P. was dealing with anxiety and depression of her husband’s untimely death. K.P. testified that she did have pictures of that time and that she would get some to him.
75There is no requirement to call evidence to explain any delay in disclosing sexual abuse. It is well accepted in the law that delay often happens in such cases. In this case, I accept the above evidence of J.A.S.’s getting rid of all of his boy-scout pictures as an active attempt on his part to repress any memories of these horrific events.
N.B.’s Reliability
76N.B. came forward to the police after seeing one of the articles in the newspaper referred to earlier.
77N.B. stated that he did not tell anyone of the sexual encounters that he testified to until his ex-wife urged him to.
78N.B. testified that he played hockey for the St. James Anglican Church hockey team that was coached by C.E.C. A picture of him in his hockey equipment and uniform was placed in evidence. N.B. identified that picture of him when he was either 10 or 11. He stated that he was certain that was him and the picture was taken at the Civic Arena in Brantford. He was adamant that the block wall that was seen behind him in the picture was the Civic Arena. He was equally adamant that C.E.C. was his coach at that time. This evidence is un-contradicted.
79According to N.B., C.E.C. befriended him and his family. His parents owned a restaurant in Brantford and worked long hours. It was C.E.C. who his parent’s arranged to give N.B. transportation to many of the games.
80N.B. testified that he stayed over at C.E.C.’s home one night because there was an early morning practice. He accepted a drink from C.E.C. He had a specific recollection that it was a rye and ginger drink. He also recalled that it had a white powder in it. N.B. consumed the drink and he stated that he passed out. He stated that he awoke to the pain of C.E.C. having anal intercourse with him. N.B. stated that he was petrified and did not say anything to anyone.
81Counsel for the accused submitted that N.B.’s ability to recall, observe and relate was impaired by his passing out. I do not agree. There is no evidence as to what the white powdery substance was and therefore the degree to which it would render N.B. unconscious. The only evidence before me was that he did pass out but woke up from the pain of what C.E.C. was doing to him. I find that, under these circumstances, N.B.’s ability to observe, recall and recount were not limited.
82The next incident related to a hockey tournament that C.E.C. drove N.B. to in Oshawa. Nick stated that he shared a hotel room with C.E.C. and he related that he again had a drink and went to sleep only to be awaken by C.E.C. once again having painful anal intercourse with him. He also related that he was once again scared to the point of being petrified.
83There was another tournament in London in that year and N.B. did not attend.
84I find that, under the circumstances, N.B. was not limited in his ability to observe, recall and recount these events.
85The Crown submits that even without any consideration of similar fact evidence each complainant’s evidence standing alone on the core issues is both credible and reliable. However, that credibility and reliability is enhanced even further when one considers the similar fact evidence. I agree with those submissions.
Defence not calling any Witnesses
86The Defence did not call any evidence. I cannot and do not consider this with any negative inference. An accused has the right to remain silent and does not have to testify or call any witnesses. All accused have the presumption of innocence right up to a verdict being rendered.
Decision
87I have found both complainants to be credible and their testimony reliable with respect to the essential elements that the Crown must prove. I find as a fact and beyond a reasonable doubt that all of the incidents of sexual encounters related by both complainants happened. These findings I can make without any regard to the similar facts being used cross count. Nevertheless, when those similar facts are considered, my findings move closer toward absolute certainty.
88I find beyond a reasonable doubt that the accused is guilty of indecent assault on J.A.S. and on N.B. as set out in both counts in the indictment.
The Honourable R. J. Harper
Date: February 26, 2019