Court File and Parties
COURT FILE NO.: 928/17 DATE: 2019-02-05
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – G.D.
Counsel: Mr. J. Martin, for the Crown Mr. D. Michel, for the Accused
HEARD at Sudbury: December 10, 11, 12, 13, 14, and 17, 2018
Reasons for Judgment
A.D. KURKE J.
Overview
1The accused is charged on a two-count Indictment with sexual assault on two different teenaged male complainants, PT and WV, around the turn of the millennium.
2With respect to evidence directly relating to complainant PT’s allegations in count 2, the Crown called at trial only PT. Additional evidence from PT and from another witness, RT, was heard in a voir dire on an application by the Crown to adduce extrinsic similar act evidence, but that application was dismissed. I will give no further consideration to the evidence on that application or make further reference to it.
3Concerning the allegations of WV in count 1, the Crown called WV and several other witnesses who were present in WV’s home during the period of time that the accused was himself staying there, which was the period of time at issue.
4At the end of the case, the Crown applied to have the Court consider the evidence of each count in determining the issues of the other count, as similar act evidence.
The evidence
PT’s evidence
5The first Crown witness was PT. PT was born in Sudbury in 1983. Except for some periods of time in Henvey Inlet, he has continued to reside in Sudbury. After going to Henvey Inlet First Nation for the summer after grade 8, PT returned to Sudbury for grade 9, and stopped living with his mother. He lived at first casually with various friends, until he started living in the accused’s home by September 1997.
6PT was introduced to the accused by a friend when PT was looking for a source for marijuana (“weed” to him). PT was about 13 years old, and had already used marijuana and alcohol. PT began to buy his marijuana from the accused, and gradually spent more time at the accused’s apartment, “hanging out” with people who came there to buy drugs, indulging in alcohol, and partying. The people there included a friend, EC, who was living in the back bedroom. EC was 14 years old, and PT was 13 when PT asked the accused if he could live there also, and the accused told him it was “not a problem”. PT lived with the accused for about a year. PT did not pay rent, but EC did. The accused was between 35 and 45 years old.
7The accused’s three-bedroom apartment was on the main floor of a 2-storey building on Fairview Avenue in Sudbury. The only bed in the apartment was in the accused’s bedroom, but once PT moved in, the accused allowed PT to use that bedroom, while he slept in a reclining chair in the adjoining living room. PT could see the accused in the chair from the bed, through the bedroom door, which was not closed very often. The bed had a full-size mattress, which was on a box spring and frame, no more than two feet off the floor. PT testified that EC slept on a couch in another bedroom.
8At the accused’s home, PT and EC smoked the marijuana and drank the beer that the accused provided them, and “cut class”. Others would also come hang out with them, including PT’s brother, girls, and friends. No adults other than the accused were present. PT experimented with other drugs, such as mushrooms, LSD, sleeping medications, and Percocet, but did not remember who supplied these. The accused supplied only marijuana. PT also tried hard liquor. Sometimes PT would pass out after drinking a lot or taking drugs, and could not remember what was going on. PT’s drug use increased at the accused’s home, and he was pretty much drunk or stoned all the time.
9PT testified that when he was drinking and smoking weed, the accused was with him drinking and smoking. PT recalls that between him, EC, and the accused, they consumed a case of beer every night or every other night.
10PT admitted to a substantial criminal record, consisting of convictions for offences between 1997 and 2016. Included on that record is an early conviction for break and enter, some twelve convictions for breaches of probation, obstruct peace officer, resist arrest, and two thefts, among many other offences. In 2005, PT was recommitted to custody as a statutory release violator on a sentence for manslaughter.
11PT testified about several incidents.
An initial incident
12“Probably a couple months” after he moved in, in about late November, PT woke up on the accused’s bed in the daytime, and found the button and zipper on his jeans open, and his belt undone. He had not undone them. PT was concerned and worried about what had happened to him while he was sleeping.
13PT did not remember how he got to bed the night before, or who was at the apartment that night, but he knew that no one else was in the bedroom with him, and that the accused was in his chair. PT admitted that he may have been drunk or stoned when he went to bed, but he did not remember consuming drugs or alcohol the night before. He knew EC was in the apartment, but did not remember who else may have come by. PT denied that this was because of intoxication, and explained that “this was 20 years ago”.
14The Crown, reasonably enough, has conceded that it is not seeking a finding of guilt in relation to this incident, given multiple areas of indeterminacy with respect to the evidence.
The first criminal allegation
15A month or two later, PT woke up in the bed at about 6 or 7 in the morning one day. He had gone to bed alone, was wearing underwear boxer shorts, and was sleeping towards the edge of the bed. Someone also in boxer shorts was lying behind him in the bed, towards the wall, with an arm around PT. This person was holding and squeezing PT’s penis over PT’s underwear for between 15 seconds and a minute, and humping his penis between PT’s buttocks. Both persons were lying on top of the sheets. PT, not fully awake, thought that it was his girlfriend behind him. He reached down to feel for her hand, but the one he found was hairy and masculine. He knocked the hand away, got up, and went to the bathroom, where he splashed water on his face, feeling “horrible”. He was not drunk or stoned. It was the accused in the bed.
16PT did not remember anyone else in the apartment at the time. PT did not say anything; he did not know how to react. PT felt that the accused “pretended to be sleeping”, but admitted in cross-examination that he did not know if the accused was awake or asleep. PT did not know how the accused had gotten into the bed; PT had slept through it. At the preliminary hearing, PT testified that he did not recall how he got to bed – if he passed out or went to bed on his own. He said that he did not recall if he had used alcohol or drugs before falling asleep.
17At trial, PT maintained that he was not drunk or stoned for the incident. He denied having used any hard drugs the night before. It was because he was not fully awake that he mistook the person behind him for his girlfriend, even though the person behind him had a penis.
The second criminal allegation
18On a later occasion, PT was in the bed with his pregnant girlfriend. PT was sleeping at the edge of the bed, with his girlfriend next to him, but nearer the wall. PT woke up at about 6 or 7 in the morning and found the accused lying on his side on the floor facing the bed. The accused may or may not have been sleeping, and his hand was cupping PT’s penis over his clothing, without moving. PT was afraid and uncomfortable about what was going on. He went to the bathroom, and did not say anything. His girlfriend was still asleep. When they had gone to sleep, only PT and his girlfriend had been present.
19PT did not specifically remember having used alcohol or drugs before this incident, but admitted that some alcohol or drugs were likely. He emphatically denied being drunk or stoned at the time of this incident. He did not remember how he got to bed. At the time he woke, only he, his girlfriend and the accused were around, though EC could have been in the back bedroom.
20PT did not talk to the accused about the incidents. Instead, PT moved out, because he did not want to be there anymore. He was uncomfortable about what was going on. PT denied the accused’s version of how he came to leave the accused’s apartment: that the accused kicked him out after he was involved in a break-in at the accused’s apartment. He denied that the accused was mad at him, that the accused claimed that PT had set him up, or that the accused kicked him out of the apartment. He denied throwing rocks at the accused and threatening to get him.
Crown evidence about WV
Some undisputed evidence
21The V family home at which the events in question in count 1 are alleged to have taken place is located in Sudbury. It is a bungalow with a finished basement on a little farmstead. The basement was acknowledged by all witnesses to be the location where the boys of the family and other younger males spent most of their time. BrV, the boys’ mother, and IV, the boys’ father, slept in a bedroom upstairs. In the basement was a rec room with one or more couches and a television. Off the rec room there was a bedroom with two beds, in one of which slept WV, a complainant at this trial, and in the other of which slept CF, a young indigenous male houseguest from Kashechewan attending school. In another bedroom beside the rec room slept BV, WV’s next older brother. The basement was accessible by stairs down from the outside through an exit door, as well as by stairs from the main floor of the home.
22At some point in 1999, the accused met sons from the V family at “Wildfire Specialists, Inc.” (“Wildfire”), a nearby business that rehabilitated fire hose for forest fire-fighting, among other work. The accused indicated to them that he needed a place to stay, and was invited by someone in the family to stay in their home. Evidence of Crown and defence established that the accused slept on a couch in the rec room.
23Also acknowledged by all are the tragic circumstances of the adopted youngest brother of the family, JuV, who, during the period of time at issue in this case, had been diagnosed with cancer and was undergoing regular treatment in hospital in Toronto. This treatment necessitated the absence from the V home of one or both of the V parents, who took what steps were necessary to be with their child in Toronto as often as possible. Sadly, JuV succumbed to his illness in 2001, around the time that the accused moved out of the V home.
WV’s evidence
24WV was born July 1, 1984, to BrV and IV. He was youngest of five natural brothers, though they also had the young adopted brother JuV. WV’s parents were often in Toronto with JuV from 1999 to 2001. WV recalled that JuV’s death occurred “towards the end of the year”, but when he was taken to the exact date of March 5, 2001 that was provided by his brother BV, he stated “that sounds about right”.
25WV met the accused at Wildfire in the summer of 1999, the year he turned 15. Within weeks, the accused had moved into the V home. The accused had explained that his apartment near the water tower in Sudbury kept getting broken into, and he needed a place to stay. He was 38 years old at the time, and older than WV’s brothers. He would drive WV to sports, such as hockey or golf, as WV had no licence. Others also sometimes gave WV rides. WV stated that “the accused more partook with us than watched over us.”
26The accused was working at Wildfire while living at the V home. WV remembered the accused at the house evenings and weekends. The accused did not work every day; it depended on how busy it was at work. WV did not remember the accused often being absent for months at a time from the V home. WV knew about “slash burning”, work that Wildfire performed in the fall, and “winter cuts”, work that took place from December to March. WV knew that his brother JV did this work, but he did not remember it taking his brother or the accused away for long periods of time.
27The accused lived in the home from 1999 to 2001, when WV was in grades 10 and 11. CF lived there while the accused was there. At the time the accused moved in, WV’s bedroom was on the main floor. Shortly after that, WV’s belongings were moved to a bedroom in the basement. CF slept in that bedroom as well, in another bed, when he was in school. CF would sometimes stay at friends’ homes, or return to Kashechewan when school was out, but not every weekend. CF seldom slept away from the home when he was in Sudbury. WV’s brother BV also had a room in the basement. NN, another male long-term guest, also slept in the basement while he was in the V home.
28WV had several friends who visited often, including EG, TC, and KZ. While the accused lived at the V home, WV’s friends did not stay over every night, but did so occasionally. When they did, they would sleep on a couch, or in CF’s bed, if he was not there. WV often slept out back of the house in a tent, with friends (a couple times with EG) and the accused. EG was not always there, but the accused was. WV slept in the tent alone with the accused more than three times.
29WV had drunk alcohol a couple times in grade 9. His parents knew; they had no particular rule about alcohol. Drinking became more regular once the accused moved in. Usually the accused would purchase alcohol, and the accused, WV, and WV’s friends would drink it. WV often went with the accused to the beer store to get alcohol. Sometimes, they used WV’s money, and sometimes the accused’s. WV also got his brothers to pick up alcohol, or friends brought it. When the accused was living at the V home, WV drank numerous times per week, straight through the year.
30Drinking usually went on in the basement, where the boys would play video games, watch sports, play Caps, and drink beer and sometimes also rye. They also drank on camping trips and in the backyard tent. They drank Black Ice, a stronger type of beer, in bottles. The accused taught WV to play “Caps”, a drinking game whose goal was to knock your opponent’s bottle cap down, which required the Caps loser to take a large swig of alcohol. The accused was much better at the game than was WV, who would more often lose. WV’s friends would also play the game.
31WV’s drinking increased over time, and he drank to get drunk. He would drink 2 to 3 times per week, and on weekends, depending on how much alcohol he had. He often drank to the point of passing out, usually down in the rec room, and would wake up on the floor, a couch, or in bed. CF was a heavy drinker on occasion, and drank to the point of passing out or being out of control. EG also passed out sometimes. TC and KZ did not drink as much. The accused drank, but not to the point of passing out or vomiting. In answer to a question in cross-examination, WV agreed that the accused would assist him to bed when WV passed out.
32WV had never done drugs before meeting the accused. He described that marijuana and hash oil were always present when he and his friends did things with the accused. They would smoke in vehicles, out back of the house or just out the back door of the basement, or on camping trips. WV not do drugs with his friends so much; “that was more when I was with [the accused]”. However, EG smoked drugs, and KZ saw the others using drugs. As WV began smoking more routinely, he would smoke in his room with a fan running. To get the drugs, WV and the accused would drive somewhere, and the accused would go inside and come out with vials of oil and sometimes marijuana. The accused would use his money or sometimes WV’s money.
First specific incident between WV and the accused
33WV described the first incident in time as having taken place in the rec room, where WV had been playing video games, drinking and smoking marijuana until he passed out. He awoke in the night, still heavily intoxicated, to the accused’s hand in his “done up” pants, inside his underwear, touching his penis sexually. WV had no recollection of how long the hand had been there. He thought it was a girl, but saw that it was the accused. No one else was present. WV was shocked. He rolled on to his stomach, to dislodge the accused’s hand, and went back to sleep.
34WV estimated that on more than 50 other occasions, he would wake up to the accused stimulating WV’s penis under his clothes or after pulling down his pants, including to the point of ejaculation. He had not always been drinking before this happened; sometimes, for instance, it happened on school nights. In his bedroom, this happened under blankets or sheets. On most occasions no one else was around, and on others, WV remembered CF being in the bedroom sleeping in his own bed. WV was shocked, and did not know what to do. He pretended to sleep. Sometimes the accused would pull WV’s pants back up, and sometimes not. Sometimes WV would wake up to the accused sleeping in his bed. It happened “too many times to put it in order.”
35Asked by counsel for the accused how such things could happen with “all these people there or visiting,” WV answered “people went places, or were out”, and “it was late at night. Everyone was asleep.” WV was not aware if EG or CF ever witnessing anything. There could have been other people in the basement during incidents, but they were sleeping.
36WV testified that at that period of time he washed his own sheets. When asked “where did the semen go” from his ejaculations, WV indicated no knowledge, but guessed that there may have been none, as he was a “late bloomer”.
Second specific incident
37Once while WV was drinking and smoking a joint with just the accused, he took a light-coloured pill that the accused offered him. WV woke up in his bedroom, kneeling onto the end of CF’s empty bed. The accused was behind him, having anal intercourse with him. The accused told him “you’re doing great”, or “you’re doing good”. WV recognized the accused from his voice, and the accused had been the only one there. WV was briefly awake for more than a couple seconds, before passing back out, with the accused’s penis still in his anus. WV assessed his level of intoxication at an “8” on a scale of a possible 10. That was the only time that WV got a pill from the accused.
38In cross-examination, WV acknowledged that he did not ask what the pill was, as he was drunk and high. WV never told police or testified at the preliminary hearing about any injury to his anus, or discomfort in his anus. He observed no cream or leakage from his anus.
Third specific incident
39On one occasion, the accused gave WV a clear liquid from a cup, which caused WV to become groggy. WV did not know what the liquid was. He was already intoxicated to some degree by alcohol, and he had had drugs that day. He testified that he remembered next waking up face down on his bed, and hearing the headboard hitting the wall numerous times. The accused was again having anal intercourse with him. WV looked around and saw the accused before passing back out, and the accused was the only other person there.
40In cross-examination, WV agreed that he made no complaint to police about anal injury or discomfort from this incident, nor did he testify to any at the preliminary hearing. WV did not remember having to clean anything up.
Fourth specific incident
41WV testified that he once was in the tent in the backyard, where he and the accused had gone to drink and smoke joints, until WV passed out or fell asleep. WV felt weird when he woke up and felt a strange feeling in his anus. He was pretty drunk, and was on his stomach wearing baggy boxer shorts and the accused was behind him. WV vomited. The accused told him that was normal, and that he should have a shower. WV testified that he felt funny, but could not remember if anything actually happened. He felt something in his anus like he did on the two occasions when he was sodomized by the accused, but he did not wake up to it happening.
42WV carefully acknowledged that he did not know if sodomy happened on this occasion at all. After he vomited, WV packed up his stuff and went into the house and showered. The accused had told him to shower, “but I’m not sure it was because of the vomit.”
The accused leaves the V home and events afterwards
43The accused moved out of the V home after WV confronted him about what he was doing. WV could not recall if the confrontation was before or after JuV’s passing. WV eventually realized that what was going on was wrong. He told the accused, “don’t ever touch me again.” The accused responded to WV, “oh, it happened to me before.”
44Shortly after that, the accused moved out, first to Capreol, and then to a place near Red Lake, for work fighting fires.
45WV did go to the accused’s home in Capreol. A friend of WV’s, ES, lived with the accused there. WV visited ES and picked him up there a couple of times, and he remembers smoking and drinking with his friend. The accused had left a snow machine at the V house. WV recalls driving the snow machine to Capreol and leaving it in a ditch.
46In high school, over time, WV’s alcohol consumption “trended upwards”, because “it kept me out of my own head.” Drinking was a coping mechanism for dealing with the abuse he experienced from the accused. WV drank to calm his mind. His main drug was alcohol, but he also did other drugs.
47In grade 12, WV told his girlfriend what had happened to him, though not in any detail, and then his mother. He was about 18 when he told KZ. Ultimately, WV’s brothers and family found out. WV told no one the details. WV met complainant PT at the preliminary inquiry, and the two smoked together during that hearing. They did not exchange details about their dealings with the accused.
The evidence of BV
48WV’s older brother, BV, was born in 1981, and was the only one of WV’s four surviving brothers to testify. He now works as a fireman. BV grew up with his family on a farm in Sudbury. He described life there as involving lots of farm chores and sports. His parents remained upstairs in the home for the most part, except to do laundry and for other occasional attendances; the basement was the boys’ space. BV drew a diagram of the layout of the basement (Exhibit 3).
49There were guests in the house. CF was from a reservation, and was attending high school. NN was a year older than BV, and was also in school. CP was BrV’s cousin’s son, and was also in high school. These boys were not all there at the same time, though it seems clear that CF’s time at the home overlapped substantially with the accused’s time there.
50BV places the accused in the family home by the summer of 1999. While staying at the V home, the accused was working at Wildfire, but “wanting to drive WV around a lot”, to hockey, friends’ homes, parties, and fishing and camping. The accused used a V vehicle to do this. In BV’s view, the accused always wanted to drive WV around, though BV had no problem with this at the time. The V parents were preoccupied with JuV’s medical treatment in Toronto, and might not be around for weeks on end. BV, when he got a licence during this period, would sometimes drive WV around.
51BV testified that in the summer of 1999, WV transitioned to a bedroom in the basement, which CF shared. BV himself did not sleep at home every night; he stayed out sometimes for hockey, with friends, or went to Toronto to be with his parents and JuV. Indeed, BV’s other brothers also spent time in Toronto with their parents and JuV.
52Other people also stayed over at the V home. WV’s friend EG spent a few weeks over the summer at the V home. As in the evidence of other witnesses, BV agreed that other friends/relatives were also often over: EG, KZ, CP, TC, and RF, and various of the V brothers and parents, among others. People did stop in, and did some drinking. They could stop in unannounced, but there was not always someone there.
53Alcohol was consumed in the V house by BV, WV, and their other brothers and friends. The drinking would go on in the rec room, unbeknownst to the V parents. WV’s alcohol consumption increased while the accused was living at the home. BV stuck to beer, but WV drank beer and hard alcohol. The accused typically would also have alcohol, and drank rye. BV never saw WV drink by himself; primarily the accused was around him. BV had seen the accused and WV drinking together on more than one occasion. WV would never get falling down drunk, but would get intoxicated.
54It is an indication of the limits of the reliability of BV’s evidence that he did not see drug use at his parents’ home, or smell marijuana in the basement. Other witnesses described substantial drug use. BV was aware that WV was doing drugs, but he never witnessed it. “I was not always there with [WV] when [the accused] was staying there.” They had some mutual friends, but they were not going to the same parties.
55Nothing sexual between the accused and WV was “flagged to” BV at the time. BV found out about the allegations after the fact, when WV, at his girlfriend’s suggestion, told him and another brother about what he said happened to him. WV was embarrassed and upset. It is clear to me that WV’s revelation to him left BV quite shaken and guilt-ridden not to have better protected his younger brother. His evidence about a change in WV’s demeanour because of the accused’s presence is hyperbolic and at odds with what was noticed by others. He has WV turning very negative in outlook, from having been upbeat and sociable. If there were changes, they may simply be attributed to WV getting older and entering high school. BV seemed to be trying to assist WV belatedly by exaggerating changes to WV that could be attributed to his mistreatment by the accused.
56BV did not remember why or when the accused left the V home. BV remembers the accused gone before JuV’s death.
The evidence of WV’s friends
KZ
57KZ is also a firefighter. He knew WV throughout high school, and they were good friends and hung out together a lot, including at the V home. They would play sports, watch hockey, hang out at night, and go golfing. KZ would sometimes stay over some nights and weekends, and sleep on a couch in the rec room.
58KZ remembered CF living at the V home, with a bed in WV’s bedroom. CF was finishing school, and played grade 12 hockey with them. Like BV, KZ was less certain about NN’s presence during this time. KZ noted the presence of many people at various times. In particular, though, EG was there “lots”, and he, KZ, was at WV’s every couple weekends. KZ remembered there being an “open door” at the V house. The V parents would not have known about the drug use. People would spend the night if they drank too much.
59The boys drank beer or rye, getting it from whom they could. The accused would buy alcohol for WV, KZ, EG, and RF. KZ normally paid for his own. The accused was not the only one who bought booze, but “it was easier when [the accused] was there.” Different people came and went. After the accused started staying there, alcohol consumption went up, but KZ readily acknowledged what BV would not acknowledge, that “we were getting a little older.” KZ witnessed WV pass out drunk and use marijuana, and “imagines” that he helped WV to his room on occasion. He saw WV drink too much a few times.
60Drugs were also used at the V home. KZ remembered a time when the accused, KZ, EG and WV used drugs in WV’s room. They used drugs also at the fire pit outside the home. WV also consumed alcohol and drugs at other parties.
61Concerning the accused’s relationship with WV, he seemed at the time to be helping out. However, “looking back it was weird.” KZ described a party of his peers that he and WV attended, at which the much older accused was also present. The accused dropped them off, and then stayed for a while, and stayed again when he returned to pick the teens up.
62KZ saw nothing happen between the accused and WV. KZ noticed that WV turned quieter, though he still smiled. When KZ was leaving for school, he heard that WV had turned to harder drugs, and talked to him to get him to clean up his act.
TC
63TC considered WV and KZ his best friends growing up.
64TC spent a lot of time at the V house, and would sometimes stay overnight on a couch or the floor in WV’s room. In around 2001, the accused and CF were at the time guests in the V home. TC was there every weekend or every other weekend, and some evenings. TC acknowledged the presence of the same family members and guests as other witnesses. TC recalled that “most times” there were more than two people around, and there could be 5 or 6 on weekends. However it was not so busy during the week.
65TC testified that the accused started living there in the later summer or fall. The accused knew JV, an older brother of WV, through Wildfire, and the accused needed a place to stay. TC did not recall the accused leaving for months at a time. The V parents were often in Toronto at SickKids hospital, and it was just the brothers at home. When asked who was in charge, TC replied, “[the accused] was supposed to help out”, and would bring WV to hockey, and he “drove us around”.
66Concerning alcohol, TC testified that people, including the accused, various of the brothers, and EG, RF, KZ, CF, BV and his friends, and WV hung out at the V home and drank. They drank “everything”, including beer and hard alcohol, in the basement or outside. Sometimes the accused would pick it up, or WV’s older brothers. Whoever had money would pay for it. TC recalled drinking to excess, and passing out and throwing up. WV would also pass out, and would find a couch or go to his room and disappear until morning. Once or twice TC helped WV to his room. TC did not see the accused drink to excess; the accused was more into marijuana.
67There was quite a bit of drug use, usually marijuana. The accused used it a lot, WV would usually use it, and EG and RF. The accused would drive WV to get drugs. The accused would buy the drugs, which were paid for by whoever had money. TC was not aware of other drugs than marijuana. The drugs were consumed usually outside the house, because of the smell.
68TC testified that the accused was never far away from WV. The accused would drive the boys around, to hockey, or to parties. TC found the relationship between WV and the accused strange, because of the age difference. The accused always seemed to have to be with WV, and was always “tagging along”. However, TC saw nothing sexual between the accused and WV, and, when pressed in cross-examination, relented and “guessed” that it was not “abnormal” for the accused to be with WV.
69TC remembered the accused present quite a bit for the two years he was staying at the V house. At first he was fine with the accused, but then the accused seemed “obsessed”, and “would not leave us alone.” The accused remained with the boys at parties, when they thought he would pick them up later. He came back when they did not even call him for a pick up.
70Before he gave his statement to police, TC received a public message on Facebook, with a picture of the accused described as a pedophile, and a letter from a mother talking about her son; she also had a son at SickKids. TC knew that this must be about WV, although WV was not named.
EG
71EG was born in 1984, and has known WV since he was 10 or 11 years old in grade 7.
72Between the ages of 12 and 17, EG spent nights at WV’s sometimes. He would sleep on a couch or in WV’s room in the basement. WV had a big bed that the boys would share. EG spent the majority of nights for two or three summers at the V home, or else he was at his parents’ home. EG was not at the V home much during school.
73EG testified about a period of time when the accused, CF, and “another guy” were living there. The accused started living there when EG was in high school. EG remembered the accused at the V home for three or four years. CF moved in when the accused was already living there, and stayed two or three years. CF had a bed in WV’s room; EG could not say that CF was at the V home every night, especially if EG was using the tent out back, as he often did. People would sometimes sleep on a couch if there were friends over. When EG was at the V home, there were more than four people there most of the time.
74EG was 12 when he started drinking. He drank at the V home between grade 8 and grade 12. He drank less often before the accused was living at that home. While the accused was living there, EG’s alcohol consumption increased. He and WV were working and had money; the accused would buy alcohol for the boys, or WV’s brothers would. They started with beer, and then moved on to rye. EG, WV, CF, the accused, and other friends, such as TC, RF, and CP and WV’s brothers drank in various groupings. They did not often drink while school was on.
75They drank to the point of intoxication almost every night when they drank. EG would get extremely drunk, pass out, and throw up, as would WV, who drank about the same amount. WV would pass out on a couch or just go to bed. Someone might wake WV on the couch and give him a hand to bed. EG also saw the accused intoxicated to the point of passing out. People would pass out on couches or on the floor.
76WV’s parents missed time at home because they were often in Toronto with JuV. EG recalled that WV’s parents came downstairs only once or twice to tell the boys to be quiet. They never came outside to complain about anything.
77The boys also used marijuana, hash, and oil daily at the V home. This was supplied by the accused or friends. Mostly they used it outside, but sometimes in the basement. Outside they used it at the fire pit or in the tent out back. EG and WV and the accused would use the tent often; one summer, EG recalled that he slept in the tent 4 or 5 nights per week. They also drank in the tent.
78The relationship between the accused and WV seemed good, though EG and the accused argued about the accused constantly being around WV. The accused seemed possessive of WV when WV was at EG’s home; it was as though the accused was feeling left out. The accused came to EG’s house, but never stayed over. EG saw nothing happen between the accused and WV in the tent or when he stayed in the house or visited the house.
79EG visited the accused in Capreol once the accused left the V house. EG would hang out with the accused, drink alcohol given him by the accused, and use drugs obtained from school or the accused. He could not recall WV being there.
The evidence of the accused
80The accused was born January 4, 1961. He is from North Bay, though he did at one time live in Sudbury. He has been with his present girlfriend over 12 years, and has an 11-year-old child, and three step-children or adopted children, aged from 14 to 20 years old.
81The accused was not working at the time he testified, but generally works for the Ministry of Natural Resources fighting forest fires, which is seasonal work.
82In 1997, the accused was living in a partially furnished apartment on Fairview Avenue, in Sudbury, and was on “welfare”. He also sold drugs: marijuana and oil, and possibly hash. People came by daily to buy drugs, but at most one person per day. He sold very little, and in ½ gram or 1 gram quantities. Not more than 10 people knew that the accused had drugs at his house.
83The accused lived alone initially for a month or two, before EC, who he believed was 16 or 17 years old, moved in. EC had been evicted from his own home for non-payment of rent, and could not live with his mother, so the accused took him in. Once EC moved in, he stayed in a back bedroom. The accused had the front bedroom, which had a bed in it that had a frame, a mattress and a box spring. The room had a dresser just to the right inside the door, and another one at the foot of the bed. There was only one or two feet of floor space between the dresser alongside the bed and the bed.
84PT asked if he could move in, and the accused agreed. PT lived with the accused between September 1, 1997 and June 30, 1998. The accused gave PT his bedroom, so PT could have “his privacy”. It was a small bedroom with a door to get in. When opened, the door hit the bed. The accused slept on a couch or an easy chair in the living room, where he had “privacy enough.” PT was a little younger than EC.
85EC and PT did not pay rent. If they had money, the accused asked for a contribution towards food. EC and PT had friends who sometimes came and stayed over. Some nights it was only the accused, EC and PT at home. The accused controlled entry to the apartment. EC moved out at some point before PT moved out. Once EC moved out, it was just the accused and PT, though they still had daily visitors.
86EC possibly on occasion spent a night away, but “never” two nights. PT sometimes was not there. Initially, the accused stated that it was “not likely” that there were times that only he and PT were at home. When EC was away, PT’s girlfriend would stay there for days or a week. When pressed if there were any nights when just he and PT were in the apartment, the accused finally conceded “I’d have to say yes.”
87While the accused, EC and PT were living in the apartment, all three drank alcohol. The accused would buy alcohol, as would EC and PT, if they could. But it was illegal for EC and PT to buy alcohol, as they were underage. Initially the accused testified that he bought the majority of the alcohol, but EC and PT gave him money if they had it. The accused shortly afterwards claimed that he bought alcohol for himself, and “the odd time” for the boys. He did not remember how much EC and PT drank; they smoked and drank with and without him.
88The accused also had drugs, and EC and PT also brought drugs. The accused testified, “I would not say that the majority of the drugs was mine.” In cross-examination, the accused stated that he would smoke a joint and then pass it to the boys. He did not ask for money. Everyone consumed the drugs, including guests to the apartment. The accused and PT both had females visiting them. The accused would drink to the point of “feeling good” and get high on drugs. Use of substances “could be daily”. The accused did not know how much EC and PT drank, but with respect to drugs, “they would smoke when I would smoke.”
89The accused offered an explanation for how PT came to move out in 1998. On one occasion PT came home, and asked the accused to come for a long walk. When they returned home, the accused noticed that his apartment door was ajar, and his place ransacked; CDs and a DVD player were missing, but no drugs.
90The accused asked PT if he knew what had happened, but PT responded “no”. For some reason, as he was suspicious, the accused walked up the hill to talk to a friend of PT’s. A person looked from a window in a building, and invited the accused and PT, who had come along with the accused, to come up and smoke a joint. When the accused went up, this person tried to punch the accused, who put his assailant to the ground, and then left. The accused asked PT if he knew what was going on, and PT behaved suspiciously, so the accused told PT that he did not want him living in the apartment anymore. PT threw rocks at the accused, and threatened to “get” him. The accused did not recall PT coming back for any possessions.
91The accused denied touching PT for a sexual purpose or fondling him. The accused denied sleeping in the bedroom on Fairview while PT was residing there. He stated that he “did not approach the bed where PT lay with his girlfriend”. Regarding the incident in which the girlfriend was present, the accused also volunteered that “if I was laying on the floor, PT would have stepped on me,” and “the door would not fully open with me there”. He did acknowledge that a person could be lying on his side by the bed, further down the bed (as testified to by PT), but added that it would have to be a small person.
92The accused moved out of the Fairview apartment around 1999, and went to the V residence.
93From the early spring 1999, the accused was employed at Wildfire, after training to get certified for fighting forest fires. He worked at that time on rehabilitating hoses for use in firefighting. He worked long days, from 8 a.m. to 5 p.m. or 10 p.m. His employment fluctuated, depending on the amount of work to do, and the seasons. Mostly in the summer he worked every day. There were periods of time when there was no work. He was employed there throughout his time at the V home. At Wildfire, the accused met JV and MV, brothers of WV, and told MV the problems he had experienced on Fairview.
94The accused moved into the V home by early June 1999, and stayed until spring 2001. He agreed that he was living at the V home for a time between January 1, 1999 and December 31, 2001, when he was 39 or 40 years old. He owned only a couple gym bags of clothing. He did not pay rent, but he helped out at the house. The V home was a farmstead, with large acreage, and horses and dogs. The accused helped with chores, did some cooking and cleaning, fed the horses, fixed fences, attended hockey, drove people around, and rounded up the horses. The accused stayed at the V home to give a “helping hand”. He was the adult in the household, because the parents were often away with JuV.
95The accused testified that he left the V home for “slash burning” from October to the beginning of December 1999, when he and WV’s brother JV lived on site and did not return home. For “clear cutting”, the accused was away in Restoule from December 1999 to the end of March 2000. By April 2000, the accused was back working at Wildfire, and then was “slash burning” again between October 2000 and the first or second week of December. He then returned to the V home in December 2000, and stayed there until May 24 or 25, 2001, except for some day trips to see his parents and almost two weeks to see his brother.
96Therefore, but for short times away, the accused was generally present at the V home at least June through September 1999, April through September 2000, and December 15, 2000 through May 24, 2001. This amounts to some 15 months.
97The accused felt an obligation to the V parents, when they were off in Toronto with JuV. He drove BV and WV to hockey, but mostly it was WV. CF also played on the same team. The accused also drove them to parties. He considered this an additional responsibility.
98At the V house, the accused stayed on a couch in the rec room, against the wall next to BV’s room. He “never” lived in a bedroom, and “never” slept in one. The accused denied “ever” sleeping anywhere but a couch. He “never” slept in WV’s room. At the time the accused moved in, only BV and CF were staying in bedrooms downstairs. When WV’s brother SV returned home, at SV’s request the accused helped SV move WV’s possessions into the downstairs bedroom, and SV took the bedroom upstairs where WV had been sleeping. CF shared WV’s room. The accused did not remember CF moving out for extended periods of time. A cousin CP shared BV’s room.
99Life in the V home revolved around the basement. The family was very sports oriented. WV’s friends EG, KZ, TC, and numerous others came over quite often. EG stayed at the V home for extended periods, and spent whole summers there, and time during school. He went home only to change. EG slept in WV’s room, on a couch, or in the tent, if the house got too crowded. The accused also slept in the tent at times, but not often. WV also stayed in the tent sometimes. The accused testified that he was “never” alone with only one boy in the tent.
100The accused drank beer at the V home, mostly downstairs, or outside at the fire pit, and some in the tent. He also drank rye. He did his drinking in the evening, unless he had to drive. Generally, the accused left his drinking to weekends, but might have one or two on other days. There were “always” other people around, either family or friends of the various brothers who lived at the V home. At a minimum, there were four extra people, there, but could be 10 to 20 extra people. They would come in through the basement stairway; there was an “open door” policy at the V house.
101The accused bought and gave alcohol to WV and WV’s friends, and “likely” to CF as well. But the accused was not the only source of alcohol. WV’s friends or family would bring alcohol also. The accused attended parties at the V home. He only played “Caps” once, with WV, while EG watched. The accused asked WV if he knew how to play the game, and WV said that he did. The accused could not recall who won.
102As to drugs, the accused smoked marijuana and used oil at the V home. He could not recall any other drugs, and never had prescription pills, cocaine, Percocet, or Ritalin. He supplied the drugs to WV and his friends. “They asked, and I did give it to them, but only marijuana and oil.” The accused added that he was not the only person supplying drugs.
103When he was asked if he had permission from the V parents to use drugs or alcohol at the V home, the accused responded, “no, but they seen me walk in with booze.” When he was asked if he considered it to be “helping” to give WV and the other boys drugs and alcohol, the accused responded that “it was helping if they wanted it.”
104The accused got employment working for the MNR in Red Lake as a fire crew member, commencing May 28, 2001. He left the V home and never returned to live there. He did afterwards give money to BrV and IV, for “rent and storage”. WV “never talked to me about anything” before the accused left the V home. The accused moved to Capreol in October or November 2001. ES, a 16 or 17-year-old friend of WV’s, asked for a place to stay and moved in. WV came by there once, and told the accused that his snow machine was stuck on the tracks in Capreol. WV helped extricate the snow machine.
105The accused has a criminal record that includes three convictions for possession of a narcotic between 1996 and 2008, two convictions for assault in 2008 and 2011, and a 1998 conviction for possession of stolen property.
106The accused testified that found his time at the V home “enjoyable”, and stated that he was grateful to the V family.
The law
Similar act evidence
107The Crown has applied that the evidence in relation to each complainant in this case be admitted as similar act evidence with respect to the other for the purpose of proving the actus reus of the offences alleged against the accused, that is, that the conduct described by the complainants did occur: see R. v. T.C., 2005 ONCA 371, [2005] O.J. No. 24 (C.A.), at para. 56.
108Evidence of extrinsic misconduct on the part of an accused that shows that he is a person of “bad character”, and therefore likely to have committed the offence charged, is presumptively inadmissible since it encourages prejudicial reasoning on the part of the trier of fact. However, evidence that is relevant and material, but which incidentally tends to show that an accused is a person of bad character, can be admissible so long as its probative value exceeds its prejudicial effect: R. v. Arp, 1998 SCC 769, [1998] S.C.J. No. 82, at para. 41.
109“Prejudice” does not mean that the evidence will increase the chance of conviction; rather, the concern is its improper or unfair use by the trier of fact: R. v. L.B., 1997 ONCA 3187, [1997] O.J. No. 3042 (C.A.), at para. 22. Such improper use can include aspects of moral or reasoning prejudice, such as 1) a determination by the jury that the evidence proves the accused to be a “bad man” and likely guilty of the offence charged; 2) the jury’s determination that the accused deserves punishment for the extrinsic conduct through conviction for the charged offence; and 3) a finding of guilt on the charged offence because of confusion as a result of the introduction of the evidence of extrinsic misconduct: R. v. Handy, 2002 SCC 56, at paras. 31, 72, 100, 145; Shearing, 2002 SCC 58, [2002] S.C.J. No. 59, at para. 64. The risks from prejudicial reasoning are not a significant concern in a judge-alone trial: R. v. J.H., 2018 ONCA 245, [2018] O.J. No. 1354 (C.A.), at paras. 23-24.
110Similar act evidence is a species of bad character evidence, and therefore presumptively inadmissible. As is the case with respect to all evidence of an accused’s bad character, the concern is to ensure that what gets put before the trier of fact has probative value beyond the mere prejudicial force of the accused’s disposition. In Handy, the Supreme Court of Canada offered guidance for determining the admissibility of similar act evidence. The controlling issue is whether the probative value of the evidence in relation to a particular issue outweighs its prejudicial effect. If that is proven on the balance of probabilities, then the evidence can be admitted: Handy, at paras. 55, 101.
111Similar act evidence proper takes its force from the degree of distinctness or uniqueness of the allegedly similarities. The greater the similarity of the evidence, the greater the objective improbability of coincidence. The inferences to be drawn from the similar act evidence must accord with common sense, intuitive notions of probability, and the unlikelihood of coincidence, and be sufficiently cogent as to outweigh the incidental prejudice that derives from disposition reasoning: Handy, at para. 42. Collusion between witnesses can subvert the value of similar act evidence, and where there exists an air of reality to the possibility of collusion, the Crown has a duty to disprove it: Handy, at paras. 110-112.
112At paras. 81-84 of Handy, the Supreme Court clarified that the probative value of proposed similar act evidence is determined by considering the cogency of the evidence in relation to the inferences sought by the prosecution, as well as the strength of the proof of the similar acts themselves. A non-exhaustive list of factors to consider with respect to the proposed similar act evidence and the charged conduct can include:
a. proximity in time of the similar acts; b. the extent to which the acts are similar in detail to the charged conduct; c. the number of occurrences of the similar acts; d. circumstances surrounding or relating to the similar acts; e. any distinctive features unifying the incidents; f. intervening events; and g. any other factor which would tend to support or rebut the underlying unity of the similar acts.
113The analysis is not to be treated as a balance sheet, where similarities are set against dissimilarities, and similar features that differ in points of detail are to be treated as dissimilarities: Shearing, at para. 60. In cases involving allegations of sexual misconduct, it is often the circumstances surrounding the sexual conduct that are more telling than the sexual conduct itself: R. v. S.C., 2018 ONCA 454, at para 23.; L.B., at para. 37.
114Evidence on different counts on an Indictment may be considered as similar act evidence with respect to other counts on the same Indictment, provided that cogency is established between the counts with respect to a relevant issue: R. v. Guay, 1978 SCC 148, [1979] 1 S.C.R. 18; R. v. Hatton, [1978] O.J. No. 460 (C.A.), at paras. 55-63; J.H., at para. 21. In cases involving similar act considerations between counts, the risk of prejudicial reasoning is reduced, as the evidence of each count is already before the court: J.H., at paras. 22-24.
115The defence in this case is that the conduct alleged by both complainants did not happen. In particular, the accused asserts that PT and WV are unreliable and incredible, and points out the following, among other things:
a. When PT awoke to find his penis being handled and someone thrusting a penis at his buttocks, he initially thought that it was his girlfriend, until he found that the hand on his genitals was masculine. This arguably makes no sense; b. It is improbable that the accused would deliberately handle PT’s genitals while he was in bed with his girlfriend, as that would risk discovery; c. It is improbable that the accused would masturbate WV in his bedroom with CF there, as that would risk discovery; d. PT gives little detail about the identification of his assailant; e. There were always other people around in the Fairview apartment and the V home. EC in the Fairview apartment, or some of the many family members or friends in the V home would have seen the conduct now complained of, if it had occurred; f. The drugs and alcohol that both boys consumed, and the passage of so many years, have rendered their current memories unreliable; g. PT’s substantial criminal record calls into question the credibility of his evidence.
116In this case, I note the following similarities between the evidence with respect to PT in count 2 and the evidence in relation to WV in count 1:
a. The allegations involving the two complainants are relatively proximate in time. It would appear that the accused moved in to the V home shortly after PT stayed with him on Fairview; b. The complainants were both teenagers at the time of the incidents alleged, though it appears that WV was a little older than PT at the time of his dealings with the accused; c. The allegations involve manual contact between the accused and the genitalia of both boys. In this context, the fact that the touching of PT was over his boxer shorts, while the contact with WV involved skin-to-skin contact, is not, to my mind, a significant distinction; d. The contact with WV involved numerous occasions of manipulation of his penis by the accused, sometimes to the point of ejaculation. One of the incidents testified to by PT involved rubbing and squeezing of his genitals by the accused for an extended period; e. WV described two incidents in which the accused anally penetrated or had intercourse with him. PT described one incident in which the accused manipulated PT’s genitals while thrusting his penis into PT’s buttocks; f. In the case of both PT and WV, the accused supplied them and other teen males with alcohol and marijuana, and smoked and drank with the boys; g. Both PT and WV allege that the sexual touching of them by the accused would begin while they were not conscious, either because of sleep or unconsciousness resulting from intoxication by drug or alcohol; h. The incidents alleged in both counts occurred in the place where the accused was residing; i. In both residences, the accused was in a position of trust or authority. He was the apartment holder on Fairview, and the only adult on site. The evidence of many persons, including the accused, establishes that in the V home the accused was the oldest adult there, and “giving a helping hand” to WV’s parents by, inter alia, assisting WV and driving him where he needed to go during the absence of WV’s parents. In this respect, the accused had been entrusted with assisting in WV’s care while the V parents were in Toronto; j. In both residences, the accused set himself up to sleep in a location from where he must have been able to monitor the activity or quiescence of the household. On Fairview, he gave up his bedroom to PT, “for privacy”, and slept in an easy chair in the living room within sight of the door of the bedroom in which PT slept. In the V home, the accused slept on a couch in the rec room, which was the hub of social activity there, and from where he would be able to observe the bedroom where WV slept and activity in the basement; k. While WV testified to many more incidents than did PT, that may represent different levels of opportunity rather than any significant dissimilarity; l. According to both PT and WV, the accused was not deterred by the presence of other people from sexual touching. PT described an incident in which the accused touched his genitals while PT’s girlfriend was in the bed beside PT. WV testified that CF was sometimes present in the bedroom when the accused touched him.
117I find the similarities between the accounts given by PT and WV to be considerable. Those similarities leave no room for coincidence, and there is no air of reality to collusion in the circumstances of the counts on the Indictment, and the evidence of PT and WV.
118The giving of narcotics to the complainants and others in the residences, the accused’s position in the household, the boys’ ages, the focus on the boys’ genitals and anal areas and the nature of the contacts, the accused’s sleeping location as opportune point of lookout, the commencement of sexual activity while the boys were not conscious, the willingness to proceed even when at least one other person was present nearby, create tableaux that are markedly similar.
119Dissimilarities, with respect to the number of incidents, the presence or absence of underwear over the boys’ genitals during contact, or the extent of incidents or presence or absence of completed anal intercourse, speak to the opportunities available with respect to each complainant, and do not detract from the weight of the similarities that are present between each count.
120In my view, the evidence of each count is significantly probative of the actus reus of the other count. The actus reus in the circumstances of each count in this case necessarily includes the fact that it was the same person who was doing the acts in question with respect to each complainant.
121The prejudice from the cross-count use of the evidence is minimized by the fact that the evidence of both complainants is before the court in any event, and as a judge sitting without a jury, I instruct myself to disregard moral and reasoning prejudice. As an aside, I also instruct myself that, although the evidence that the accused trafficked drugs and provided alcohol to minors is highly probative in the similar act context, and as corroboration of the complainants’ accounts (as I will discuss below), I must not use that evidence to conclude that the accused is a bad person who deserves to be punished by being found guilty of the charges alleged. The accused is not charged with trafficking narcotics, or giving alcohol to minors.
122Therefore, I find that there is a distinctive pattern of conduct between counts one and two of the Indictment. With respect to the actus reus of each count, the probative value of the evidence of each count as it relates to the other count significantly exceeds any prejudice from that use, and the evidence relating to each count may be applied to the other to assist in the determination of whether the acts complained of actually took place.
123The Crown’s application is granted.
Burden of proof
124The accused began this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320, at para. 27.
The test in W.(D.)
125In the circumstances of this case, the accused has testified and denied that the offences occurred. Accordingly, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, at pp. 757-758:
… In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]
… A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
126While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), 1994 SCC 76, [1994] 3 S.C.R. 521, at p. 533. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
Sexual assault
127For a finding of guilt to the charge of sexual assault, the Crown must prove, beyond a reasonable doubt: a direct or indirect application of force to another person, 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: Criminal Code, ss. 265(1) and (2), 271; R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at paras. 25, 41; R. v. Chase, 1987 SCC 23, [1987] 2 S.C.R. 293, at para. 12.
128For there to be consent to a sexual act, a complainant must provide actual active consent to the sexual activity that is taking place. An unconscious or sleeping complainant cannot offer consent at the time of the act, and consent given in advance of an act to take place during unconsciousness is not effective: R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, at para. 66.
Credibility and reliability
129In this case, the issue that directly confronts the court is the credibility and reliability of the evidence of the complainants and of the accused.
130In assessing the credibility of adult witnesses who testify about things from their youth, a court looks to the consistency or inconsistency of a witness’ evidence, taking into account the witness’ age at the time that the events testified to are alleged to have occurred; aspects of evidence that demonstrate a carelessness with the truth; or whether any inconsistencies are major or trivial: R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), at paras. 9-14.
131It 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.), at para. 41, 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, he states “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.”
132In 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”: Shearing, at para. 121.
Analysis
The Crown’s evidence
PT’s evidence
133PT has a significant criminal record, including many offences of violence, as well as offences of dishonesty and showing disrespect for the administration of justice. But at this proceeding, I found PT to be a compelling witness, who did not exaggerate what he said had happened to him at the hands of the accused. I attribute his memory lapses to the passage of time rather than the abuse of substances. PT retained his composure on the witness stand for the most part, even when he was cross-examined in ways that he must have found demeaning and derogatory.
134The incidents that he described may well have taken place after the consumption of drugs and alcohol at some prior point, but I accept PT’s testimony that he was not drunk and stoned during the incidents themselves. I accept his testimony as credible, and reliable.
135In all respects, I found the evidence of PT compelling. He testified in a calm and forthright manner, even when prodded concerning his substantial criminal record, or probed about unusual features of the events that he was describing. He maintained his composure. He attempted to be helpful, even in cross-examination, and at one point stood, so that his explanations about positioning of people on an exhibit could be better viewed by the accused and counsel. He did not exaggerate; he fairly told the court that the accused only supplied him with marijuana, and not with any other drug.
136PT did not try to play down the strangest aspect of his evidence. In the incident involving the accused handling and squeezing PT’s genitals, while humping his penis into PT’s buttocks, PT testified that he initially thought that this was his girlfriend, and only realized otherwise after he had taken hold of the accused’s hairy and masculine hand. PT explained that he was not “all the way conscious or awake” when he made his initial observation that it could be his girlfriend. Moreover, both males were wearing boxer shorts, and PT had no reason to expect to find the accused in his bed. PT calmly disagreed that his mistake was caused by drugs or alcohol that he had consumed. Straightforward acknowledgement of difficulties and simple honest explanations are hallmarks of a credible and reliable witness.
137In relation to the second incident, PT was confronted again with being too stoned or drunk to accurately recall what had gone on. He was asked about passages from the preliminary hearing, in which he stated that he did not recall if had had drugs or not, or if he had passed out or gone to bed on his own. These passages did not refresh his memory, and I find that they are of little assistance in determining PT’s state of sobriety at the time of the incident, which took place sometime after PT went to bed. I do not find that they represented inconsistencies that affect my view of PT’s credibility.
138I found particularly impressive and intelligent PT’s answer that the passage of twenty years was more likely the cause of lack of knowledge of the time of the incident where he found his pants undone, rather than any substances he had consumed.
139I also find that there is substantial corroboration for PT’s testimony about the circumstances of the case from the evidence of the accused himself. The accused corroborates the living and sleeping arrangements, that PT’s girlfriend slept at the apartment on occasion, that there was room beside the bed for a person on his side to lie, and most significant of all, that the accused, the responsible adult in the residence, provided drugs and alcohol to PT.
Analysis of the evidence in relation to WV
140In the main, I accept the evidence that was given by BV and the friends of WV who testified. The evidence of WV’s friends was hardly challenged at all. Their evidence was based on their individual opportunities to be present and to observe what went on in the V home, and between the accused and WV, as mediated by the effects on them of the drugs and alcohol that they consumed. There was evidence that at least TC received an on-line message portraying the accused as a pedophile before TC spoke with police. I am satisfied that this communication did not affect the substance of TC’s evidence.
141The different witnesses remembered this period from their youth generally in the same way, but with the different points of emphasis that are only to be expected from different people about events from so long before. I have no reason not to accept the bulk of their evidence as credible and reliable, save with respect to the evidence of BV, which in parts carries a little less weight, for reasons I offered above.
142WV’s evidence was attacked mainly on the grounds of its reliability. This position accords with the accused’s claim in his evidence in-chief that he was “not mad or angry with [WV] or the other members of the [V family]”. And it is a mark of how affected WV had become by drugs and alcohol that he was unable to pinpoint in time the date of his brother JuV’s passing.
143The other Crown witnesses who testified with respect to count 1 were all extensively examined and/or cross-examined on the alcohol and drugs consumed by WV and the others at the V home, about the number of people who were present there at any given time, on the accused’s absences from that home for various extended periods of time during the two years of his residence there, and whether the witnesses observed any misconduct between the accused and WV. On behalf of the accused, these areas were intended to develop the arguments that WV was an unreliable reporter with an uncertain memory, that the accused did not have the opportunity to do what WV claimed he had done, and that no one else ever saw any such things.
144But even acknowledging its frailties, I was very impressed with the quality of the evidence given by WV.
145It was very compelling with respect to points of detail. The physical details about how he and the accused were positioned at CF’s bed during the first incident of anal intercourse, and the encouraging words that the accused spoke to him, with the admitted uncertainty about one of them (“you’re doing good” or “great”), describe a snapshot memory during a passing moment of consciousness. WV’s description of hearing the headboard repeatedly striking the wall during the second incident of anal intercourse is another startlingly concrete but homely detail. The vomiting, and the accused telling WV that he should have a shower at the conclusion of the incident in the tent are incidental but solid details. While the nature of the pill or the clear liquid that were given by the accused to WV will remain uncertain, and it may never be known whether anal intercourse occurred during the tent incident, these remembered details offer a clear image.
146Reminiscent of the evidence of PT was WV’s evidence about the first incident that he experienced from the accused, when WV thought that the hand in his pants must have been a girl’s hand, until he discovered otherwise, and rolled over to put an end to that touching.
147WV could easily have exaggerated or minimized what he recollected, but did not do so. The masturbatory incidents that he described as having occurred more than 50 times had no particular individualizing details, because they blended into a single type of conduct from their sheer frequency. WV frankly admitted that CF was present sleeping in the other bed in WV’s bedroom for some incidents, regardless that this admission fed into assertions of improbability by the defence. WV could have constructed a recollection of completed anal intercourse in the tent, but limited his testimony to the evanescent sensations that he did actually experience: “it felt like it did when I had been sodomized…I felt a strange feeling in my anus”.
148And WV’s answers to questions asserting the constant presence of others were simple and commonsensical: the incidents happened late in the night, when people went places, were out, or were asleep. Likewise, WV could not recall what happened with respect to any bodily fluids that may have passed from him or the accused, but these things would hardly be his greatest concern or in the forefront of his memory after so much time had passed and so many substances had been consumed.
149A frequent refrain in the questioning of WV was the suggestion that drugs and alcohol did not improve his memory, and that he used substances to forget. But that was not WV’s evidence. WV candidly admitted that his memory would be better had he not been drunk or stoned during the time in question, but he clearly corrected his cross-examiner, stating that he drank not to forget, but “to get me out of my head”, words intended to carry a very different meaning, of coping with rather than attempting to erase a memory.
150Nor do I find that it detracts from the evidence of WV that he did not describe to police or in evidence at the preliminary hearing any injury to his anus or the physical sensations he experienced during the acts of anal intercourse inflicted upon him by the accused. First, at no point in his evidence did WV assert that he had suffered any injury from these assaults. Second, people who give statements to police or evidence in court may well fail to describe something incidental to the act they describe if no question is asked about it. I do not fault WV for not attempting to describe on earlier occasions the feeling in his anus from the penetration he experienced. Had he been earlier asked about any physical sensations, and denied feeling anything, that might well constitute an answer inconsistent with his trial evidence.
151Moreover, there are significant aspects of corroboration from the other evidence in the case.
a. WV’s brother BV, and friends KZ, TC and EG all noticed that the accused appeared to be unusually attached to WV, and desirous of being in his presence. That observation even caused EG to have words with the accused. The conduct was unusual because the accused seemed to participate with the teens as one of them, though in fact he was decades older; b. WV’s friends all observed that the accused was a major source of drugs and alcohol for WV, WV’s friends, CF, and others; c. WV’s claims of drinking to the point of passing out or vomiting were corroborated by his friends, even though the accused denied or at least minimized them; d. EG and TC in particular corroborate WV about being with the accused in WV’s room or in the tent, facts minimized or denied by the accused; e. It is the accused’s own evidence that he provided a helping hand to the V family by helping with WV’s needs. The accused confirmed that he slept on a couch in the rec room. He confirmed that he provided drugs to WV and assisted WV and his friends in getting hold of the alcohol they drank. These are significant areas of corroboration in the circumstances of this case; f. Even on the accused’s assessment of the periods of time that he was absent from the V home, for work, or to visit family, I am satisfied that there were easily more than 400 nights that the accused slept at the V home, providing ample opportunity for the conduct alleged by WV to occur.
152I cannot accept the defence submission that there were “always” people present in the V home, so that the accused would not have had the opportunity to do what WV alleges. Such a submission by the defence does not account for what common sense and human experience teach, and magnifies to an impossible degree the evidence of the witnesses. WV’s observation that the events occurred late at night, when people were asleep or out, represents an almost complete and perfectly satisfactory answer to this claim. The only aspect missing from that answer is that the drugs and alcohol that were consumed in the V home, either as supplied or encouraged by the accused, ensured for the accused that when they slept, the boys in the home slept soundly. From his vantage point on the couch in the rec room, the accused was able to know when the house was quiet, and when WV was vulnerable.
153Although there are undeniable frailties relating to the reliability of the evidence of WV, in large measure I accept his evidence about what he suffered from the accused. Drugs and alcohol were WV’s constant companions during the accused’s tenure at the V home. Nevertheless, specific details about certain events render WV’s account compelling. His efforts to be candid and not to exaggerate his claims speak highly for WV’s credibility. Significant aspects of WV’s evidence are corroborated by the evidence of his friends, his brother BV, and the accused.
154However, I do not accept that the repetitive sexual assaults described by WV occurred more than 50 times. It is no fault of WV’s that in the circumstances that he describes, he did not keep a more accurate tally of incidents. However, the passage of time and substance abuse cause me to question the validity of this number. I do accept from the evidence of WV that these incidents occurred numerous times.
The evidence of the accused
155I find that I am unable to rely on the evidence given by the accused. I found the accused’s evidence at times evasive, at times self-serving, and at times contrary to common sense and reason.
156I do not believe, and I reject the accused’s evidence as it relates to his denials of misconduct with PT.
157The Crown pressed the accused for details about the scale of his admitted drug trafficking from his apartment on Fairview. In my view, the accused sought to minimize the scope of that trafficking, and ultimately offered an unlikely scenario of orderly trafficking of drugs limited to one client a day, in the evening.
158Similarly, the accused’s attempt to minimize the fact that he provided drugs to EC and PT by claiming that he did not give them drugs except when he passed them a joint he was smoking was just not credible. Similar was the accused’s claim that he bought alcohol for himself, and “the odd time” for the boys. These attempts to minimize tangential misconduct by limiting what he passed along to EC and PT are not believable.
159Along the same lines was the accused’s attempt to minimize his opportunities to interact with PT in the manner PT described, by denying being alone with PT. The accused portrayed EC as always being present at the Fairview apartment. On the rare occasions that EC was not there, PT would have his girlfriend there, as though EC and PT’s girlfriend were a tag team, and the presence of one required the absence of the other. Ultimately, when pressed that there must have been some time that he was alone in the apartment with PT, the accused finally admitted, “I’d have to say yes.”
160The accused’s explanation for giving his bedroom and the only bed and dressers in the apartment to teenaged PT, a squatter who paid no rent and simply asked if he could stay there, would be simply strange if it were not so sinister. The accused testified that he gave up his bedroom so that PT could have privacy. On the evidence of PT, which I accept, there was precious little privacy to be had by PT, at least from the accused. The accused’s explanation only makes sense if the accused meant so that he himself could have privacy with PT.
161Emblematic of the evasive and argumentative nature of the accused’s testimony were his gyrations aimed at convincing the court that he could not have lay down beside the bed at Fairview to handle PT’s genitals from beside and below him. His first claim was that there was no room for a person in the space beside the bed. He then acknowledged that it could perhaps be managed by a person on his side. However, PT would have stepped on him, had he been beside the bed, and the bedroom door would not have opened with him there. When it was suggested to the accused that a person further down the side of the bed would not have been stepped on or hit with the door, the accused finally conceded the point, but threw in that it would have to be a small person. I note that the accused himself appears to be tall, and I do not accept that it would have to be a small person.
162The accused’s evidence concerning the break and enter at his house, and his adventures in investigating it was incapable of belief. The accused went up the hill looking for answers, and was invited up by a denizen of a local building to share a joint. For some reason, the accused did go up, and his would-be host then attempted to assault the accused, who put him to the ground. Somehow this motivated the accused to expel PT from his apartment, and PT never went back for his belongings, all of which PT anyway conveniently carried with him at all times in a back-pack. In my view, this story represents an after-the-fact justification to counter the explanation given by PT for his decision to leave the Fairview apartment.
163The accused’s evidence about what went on at the V home was no more compelling than his testimony about PT. I do not believe his evidence, and I reject it, as offered rather to convince or minimize than to assist with the fact-finding process.
164I begin with the admission of providing alcohol and drugs to WV, his brothers and friends and CF. The accused, often the senior adult at the V home, and claiming to have offered a helping hand to the V parents particularly during their absence from the home, provided drugs and alcohol to minors. But, asserts the accused, “I was not the only source of alcohol and drugs”. Although this might be a reasonable claim for a barkeep to make to explain contraband found during an inspection of his premises, it is a fatuous observation in the context of the V home, and the accused’s position in that home. The accused wanted to portray himself as a helpful adult in the V home, and so felt the need to downplay a most concerning aspect of his conduct.
165Just so, according to the accused, it was “helpful” to provide marijuana and oil to WV and other minors at the V home. After all, “they did ask, and I did give it to them”, but only marijuana and oil.
166But it is the absolute denials of the obvious or affirmations of the impossible that require me to reject the exculpatory aspects of the accused’s evidence. The accused’s complete denials of things that plainly must have happened at the V home, or with WV, or that the accused must have seen, based on evidence I do accept, banish any hint of credibility from the evidence given by the accused. Nay more; his claims are too expansive and his denials are too absolute to co-exist with common sense. Thus:
a. While the accused was living at the V home, he never got drunk and passed out. He denied being alone “at any time” with WV consuming alcohol. The accused denied being alone “at any time” with WV in the basement, or when he was driving WV around. “I don’t believe I was ever alone with [WV]”. EG was “always” present with the accused and WV during the summers of 1999 and 2000. When it was put to the accused that sometimes he drank alone with WV, he responded that there were “always” other people around, present in the same room. There were “always” at least two of WV’s brothers present with WV. Likewise, there was “always” someone else there when the accused and WV were smoking drugs. It was “not possible” that the accused and WV ever smoked alone.
The evidence of WV and EG, among others, calls this evidence seriously into question, as does logic and common sense.
b. According to the accused, it was “highly unlikely” that CF ever went to visit his parents; he was at the V home all the time, “except the odd night.” It did not happen that the accused was alone at the V home; there were always people there having a drink. It “never” happened that the accused was sleeping on a couch, while CF and WV were sleeping in WV’s room, and BV was in his bedroom. There were “always” other people there. Indeed, the accused did not recall “ever” sleeping by himself in the rec room; there was “always” someone else sleeping there also.
On a conservative estimate, the accused spent more than 400 nights at the V house. Such claims as these are simply not believable, and rebel against common sense and the other evidence in the case.
c. Except when he helped SV move WV’s things downstairs, the accused “never” went into WV’s room, and did not smoke a joint in there.
The evidence of KZ, whom I find to be credible and reliable, belies this claim. The evidence of BV and WV’s friends alike portray the accused as regularly by WV’s side. For WV’s bedroom to have been treated differently from anywhere else in the V home is not believable.
d. People were “always” walking in. There were “always” people there, at all hours. They would come in at 3, 4, 5, or 6 in the morning, according to the accused.
The accused would have the court accept that the V home was rather a bus terminal or an airport than a private residence. This evidence also comes up against the logical evidence of several witnesses that there were fewer visitors to the V home during school or during the week.
e. The accused “never” saw WV passed out. WV drank a lot, but he could “get up, walk around the house, and come back down”. The accused “never” had to assist WV to his room to sleep. He “never” assisted WV to clean up vomit. He “never” saw WV get ill. He “never” saw EG pass out. He never saw CF pass out. They were “always” conscious. He never saw WV or EG throw up from too much alcohol.
Again, the evidence of WV, EG, and TC belies such claims. The accused was frequently around WV and EG was often there, and TC sometimes as well. When I have so much compelling evidence from WV and his friends, I do not accept that the accused did not see WV or other boys pass out and vomit.
167I note that claims like these cause me to question why the accused would feel the need to make such broad assertions. What are denied are opportunities to be alone with WV, and the accused’s awareness of occasions when WV would be particularly vulnerable from substances that the accused had provided to him or encouraged him to use, and when others might be unobservant for the same reason. When assessing the believability of evidence, a court looks for honesty, not strategy.
168In similarly strong terms, the accused denied any sexual contact with WV. I reject those denials as being no more compelling than the many other matters denied by the accused.
169In all of the circumstances of this case, I do not believe the accused’s denials of the sexual conduct alleged by PT and WV, and I reject those denials. Where the evidence of the accused conflicts with the evidence of WV and PT about sexual conduct, I accept the evidence of WV and PT.
The similar act evidence
170The evidence concerning what the accused did to WV assists me in better understanding what was happening to PT. It is clear to me that the accused gave up his room to PT, and slept in an easy chair outside that room, in order that he would know when conditions were right for his advances on PT. He would know when the apartment was quiet, and when people were asleep or unconscious. By chance, sleeping arrangements at the V home gave the accused the same opportunity there. The accused slept on a couch in the basement rec room, the social centre of the V home.
171Moreover, even if common sense did not cause me to reject any suggestion that the accused could have been asleep and his touchings of PT accidental, the striking similarities of the evidence concerning the accused’s repetitive conscious dealings with WV make such a claim impossible, and I reject it.
172The similar act evidence indicates that the accused was progressing to the point of masturbating PT and perhaps sodomizing him, if PT had not decided to leave the apartment before that conduct could occur. WV may have been startled by the accused’s initial advances, but he took no steps to confront the accused about his conduct until many further incidents had occurred. The continued availability of drugs and alcohol, enjoyed by WV and his friends, encouraged WV to do nothing to stop the aspects of the accused’s conduct that he did not like, until shortly before the accused’s departure.
173In the case of both PT and WV, the accused took advantage of the effects of the drugs and alcohol whose use he facilitated or encouraged to begin his sexual assaults on PT or WV while they were sleeping off the effects of the substances.
174Given the strong similarity of the conduct exhibited towards both PT and WV, the use of the similar fact evidence confirms to me that only the accused was involved in the sexual touching of PT and WV. This was not an identification case. Both PT and WV recognized the accused as their assailant, and I accept their evidence about this recognition. Nevertheless, the striking similarity of the conduct involved in the two counts also necessitates a finding that the same person committed all the assaults on PT and WV.
175Even without the evidence on the one count to assist in the proof of the other, I would have been satisfied beyond a reasonable doubt on the evidence of each count standing alone. The use of the evidence of each count towards the other merely offers additional weight to the evidence of each count proper.
Conclusion
176Alone or in combination with the rest of the evidence in this case, the evidence of the accused does not leave me with a reasonable doubt with respect to either count on the Indictment.
177On all of the evidence in this case that I do accept, I am satisfied beyond a reasonable doubt of the following:
a. With respect to PT: i. The incidents took place in the accused’s apartment on Fairview Avenue in the City of Greater Sudbury during the period alleged in the Indictment, when PT was residing there with the accused, who controlled the apartment; ii. On each of the two incidents in question, before sleeping, PT had been consuming drugs and alcohol provided to him by the accused or with the encouragement of the accused; iii. The accused, from his position on the easy chair outside the bedroom in which PT slept, knew when PT was sleeping off the effects of the drugs and alcohol, knew when EC was himself not likely to witness anything or intervene, that PT’s girlfriend was sleeping, and that PT was vulnerable to the accused’s advances; iv. In one incident, the accused, clad only in his underwear, climbed onto the bed behind PT in the bedroom. PT did not notice this happening, because he was asleep; v. While PT slept, the accused from behind PT held and squeezed PT’s penis through PT’s underwear, in order to sexually excite him. The accused humped his crotch into PT’s buttocks while he manipulated PT’s penis. Even if PT was of the age of consent at some point during the period charged, he could not consent to sexual touching while he was asleep; vi. PT awoke while the accused held his penis and humped. Not fully awake, PT thought that it must be his girlfriend’s hand on his penis. He reached for the hand, and discovered his error; vii. PT left the bed and went to the washroom, shocked by what had happened to him, but not knowing what to do; viii. On a second occasion, PT awoke in the bed, with his girlfriend beside him, but with her lying closer to the wall; ix. While PT had slept, the accused had positioned himself on the floor beside the bed, low enough down the side of the bed so that his hand could reach PT’s penis; x. Beside the bed, the accused was lying on his side, with his right arm outstretched onto the mattress, where he cupped PT’s penis above PT’s underwear while PT slept. This was a deliberate act on the part of the accused – he did not just happen to fall asleep in that position. Once again, PT could not have consented to this sexual touching, as he was not conscious; xi. PT was startled to awaken and discover this contact, and went to the washroom to collect himself; xii. The incidents ended once PT left the apartment of the accused.
b. With respect to WV: i. The incidents took place in the V home in the City of Greater Sudbury during the period alleged in the Indictment, when the accused was permitted to stay at that home, and was entrusted to help WV, among other things; ii. On each of the many incidents in question, before sleeping, WV had been consuming drugs and alcohol provided to him by the accused or with the encouragement of the accused. WV was affected to some degree by these substances; iii. Various people may have been in the V home when incidents occurred. The list of people who could have been in residence included, from time to time, the parents of WV, the brothers of WV, friends of WV, and CF, CP, or NN. If any of these persons were present in the home, they were asleep or unconscious, either in bedrooms, or on couches, or in the tent in the back of the home; iv. Generally, from his vantage point on a couch in the rec room, the accused was able to observe when the house was quiet, and when people were asleep or unconscious; v. The first occasion of sexual touching of WV by the accused took place on the rec room floor, where WV had either passed out or fallen asleep from the consumption of drugs and alcohol. WV awoke to find a hand down the front of his pants. When WV discovered whose hand it was, he rolled onto his stomach to prevent further contact, and went to sleep or lost consciousness again; vi. On numerous occasions, the accused took advantage of WV’s unconsciousness or sleep, to begin to masturbate WV’s penis, including to the point of ejaculation. WV would awaken to find that this conduct by the accused was occurring. He did not consent to the application of this force, because he could not, as he was asleep or unconscious when it began. This conduct took place in the rec room, in WV’s bedroom, or in the tent out back of the V home; vii. On two occasions, WV was asleep or unconscious in his room when the accused penetrated WV’s anus with his penis. The accused guided WV into accessible positions. WV could not consent to this anal penetration by the accused’s penis, because he was asleep or unconscious. WV awoke or came to, to find the accused anally penetrating him. He was conscious for moments before passing out again, but was able to recognize the accused as his assailant from the sound of his voice, or his brief view of him; viii. The assaults of WV ended when the accused left the V home, and did not any longer have access to WV.
178On these findings, I am satisfied beyond a reasonable doubt that the Crown has proven the essential elements of sexual assault on both counts of the Indictment, and I make findings of guilt to both.
A.D. KURKE J.
Released: 2019-02-05
