COURT FILE NO.: 84-14
DATE: 2019-09-30
CORRECTED DATE: 2019-10-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Darlene Marie Paddy-Cannon Rosemarie Ethel Christie Sharon Geraldine Cannon
Plaintiffs
John Annen, for the Plaintiffs
– and –
The Attorney General of Canada and Katherine Cannon
Defendants
Daniel E. Luxat for the Defendant, The Attorney General of Canada
Michael J. Pretsell for the Defendant, Katherine Cannon
HEARD: November 19-22 and 26-30
CORRECTED: The year of release has been added to the citation.
corkery j.
[1] The plaintiffs are sisters. The defendant Katherine Cannon is their aunt. The plaintiffs lived with Katherine Cannon and her family when they were children, during which time they allege that Katherine physically abused them. They claim damages against Katherine for assault and battery. They claim damages against the Attorney General of Canada (“Canada”) for breaching its fiduciary duty to protect them from physical abuse by the defendant Katherine Cannon. The plaintiffs seek general damages, special damages and punitive and aggravated damages against both defendants
[2] The given names of the parties and witnesses are used herein, as that is how they were referred to during the trial.
Background
[3] The plaintiffs’ parents are Marie (Watchmaker) Paddy and Gerald Cannon. Both parents were deceased at the time of trial. Sharon Cannon was born in 1959. Darlene Paddy-Cannon was born in 1960. Rosemarie Christie was born in 1963. The plaintiffs are all members of the Thunderchild First Nation, an independent Cree First Nations band in Turtleford, Saskatchewan.
[4] The defendant, Katherine Cannon, is married to Michael Cannon (known as “Vern”). They have been married sixty-three years. Vern is Gerald’s brother. Katherine and Vern have three children: Susan, the oldest, followed by Karen and Mary.
[5] In the early 1960’s the plaintiffs’ parents separated. Their father, Gerald, brought them from western Canada to Ontario, to his mother’s home. His plan was to have the children raised by their grandmother. However, on or about May 1, 1965, she died.
[6] After their grandmother’s death, the sisters came to live with Katherine and her family (the “Cannon family”). Darlene came first. She was about four-and-a-half. A few months later Rosemarie came. She was eighteen months old. About three years later Sharon came. She was between eight and ten.
[7] Although the plaintiffs deny that their parents abandoned them, the plaintiffs acknowledged that their parents were alcoholics and were unable to care for them.
[8] The defendant, Katherine Cannon, is 81 years old. While raising her children she worked as a custodian at the school her children attended, until 1978. Between 1990 and 2017, she was appointed as negotiating representative for the Algonquin community of the Bancroft area. She was employed by the Department of Indian Affairs through the negotiation treaty process.
[9] Katherine is Algonquin. Her mother was the daughter of Susan Baptiste, Susan was daughter of Chief John Baptiste. The plaintiffs dispute this. A complaint was made to Indian Affairs that Katherine was not Algonquin. In 1994, Katherine was appointed Chief of the community as well as the negotiator. Several years later, Katherine was reappointed.
The Alleged Tort: Assault and Battery
[10] In their Amended Statement of Claim, the plaintiffs raise a number of allegations against Katherine regarding her mistreatment of them. At the conclusion of evidence at trial, counsel for the plaintiffs confirmed that the tort being alleged is assault and battery.
[11] The intentional tort of battery was recently considered by the Ontario Court of Appeal in Figueiras v. Toronto Police Services Board 2015 ONCA 208:
142 The tort of battery is committed whenever someone intentionally applies unlawful force to the body of another (Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 (S.C.C.), at p. 246). There is no requirement to prove fault or negligence (Non-Marine Underwriters, Lloyd's London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 (S.C.C.), at paras. 8-10). Nor is there a requirement to prove damage or injury (Norberg, at p. 263). Relatively simple acts can constitute a battery, such as restraining a person by grabbing their arm (Collins v. Wilcock, [1984] 1 W.L.R. 1172 (Eng. Q.B.), at p. 1180), or maliciously grabbing someone's nose (Stewart v. Stonehouse, 1926 CanLII 114 (SK CA), [1926] 2 D.L.R. 683 (Sask. C.A.), cited in Scalera, at para. 16).
143 However, not every act of physical contact is a battery. As the Supreme Court has put it, battery requires "contact 'plus' something else" (Scalera, at para. 16). That is, there must be something about the contact that renders that contact either physically harmful or offensive to a person's reasonable sense of dignity (Malette v. Shulman (1990), 1990 CanLII 6868 (ON CA), 72 O.R. (2d) 417 (Ont. C.A.), at p. 423).
144 The classic example of non-actionable conduct is tapping someone on the shoulder to get that person's attention, or the regular jostling that occurs in any crowded area. Something more than that is required to constitute a battery.
[12] Although the distinction between assault and battery has been blurred, assault remains a separate intentional tort.
Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs.[^1]
The Standard of Proof
[13] The allegations made by the plaintiffs are grave. However, the Supreme Court of Canada has reiterated that it is settled law in Canada that the civil standard of proof at common law is proof on the balance of probabilities (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 SCR 23, at par. 94). The plaintiffs bear the burden of proving their case on the balance of probabilities.
[14] All of the evidence must be considered. In this trial, the evidence was extensive. Although, much of the evidence is summarised herein, it is all of the evidence received at trial that must be weighed in determining whether the plaintiffs have met the standard of proving their case on a balance of probabilities.
The Issues
[15] In this case, the defendants agree that the evidence of physical abuse from the plaintiffs, if accepted, is sufficient to establish assault and battery. Thus, the primary issue in this case is whether the physical abuse alleged occurred.
Considering all of the evidence, the court must assess all the evidence and determine whether it is more likely than not, that the alleged abused occurred.
[16] If the court finds on a balance of probabilities the physical abuse alleged did occur, the court must then determine what general damages and special damages the plaintiffs are entitled to.
[17] Finally, if the court finds the abuse alleged did occur, the court must also determine if Canada is liable at law for any damages arising from the abuse.
[18] The issues before the court in this trial may be framed as questions:
Did Katherine Cannon physically abuse the plaintiffs as they allege?
If the answer to question one is yes, what damages are the plaintiffs entitled to?
If the answer to question one is yes, did Canada owe the plaintiffs a fiduciary duty or a duty of care at common law and, if so, did they breach that duty?
[19] If the answer to question one is no, then the court need not address questions two and three.
Did Katherine Cannon physically abuse the plaintiffs as they allege?
The Evidence
[20] Ten witnesses gave evidence at trial.
[21] On behalf of the plaintiffs, four witnesses testified: each of the plaintiffs and Dr. Judith Johnson, Sharon’s psychologist.
[22] Dr. Johnson was qualified as an expert. Her opinion evidence rested on a number of assumptions. Her evidence does not, however, relate to the determination of this issue, whether the abuse occurred.
[23] On behalf of the defendant Katherine, six witnesses testified: Katherine Cannon, Vern Cannon (her husband), Karen and Susan (her daughters), and Robert and Kimberly (her son-in-law and her niece).
[24] Canada did not call any evidence.
1. Arrival to the Cannon Home
a. Darlene
[25] Darlene was about four-and-a-half or five years old when she came to live with the Cannon family. She was the first of the plaintiffs to arrive. Darlene believes she spoke Cree and English when she arrived and that she had learned Cree from mother and father.
[26] Darlene testified that she remembered arriving in Ontario with her father by train. She lived with her grandmother, in her grandmother’s house, after they arrived. She presumes that she spoke to her sisters in Cree. She does not know the circumstances that led to her move, apart from what she was told by Katherine. She lived with the Cannon family until she was 17.
b. Rosemarie
[27] Rosemarie arrived next.
[28] Rosemarie testified that she began living with the Cannon family when she was about eighteen months old. She recalled that she usually shared a bed with her older sisters or her cousin, Mary. There were two double beds in the bedroom where she slept. She was never cold at night and always had a blanket. She always had breakfast and a packed lunch for school.
c. Sharon
[29] Sharon acknowledged in cross-examination that she has “memory issues”. Sharon stated that a lot of her memories have been wiped or erased. She does know the ones she remembers, but a lot of things she used to know have disappeared. They are hard to recall unless Sharon reads or smells something. Sharon acknowledges that some of the things that she has told her psychologist happened, such as the abuse occurring daily. This was one of the things she was told by Darlene, because Sharon has no memory of them.
[30] Sharon testified that she lived in Ontario from the age of five but did not move into the Cannon household until she was ten.
[31] At the age of four she lived in foster care, during which time she was sexually assaulted. She has no memory of the assault.
[32] Sharon has some recollection of arriving from Edmonton with her father and sisters and of being brought to her grandmother’s home. She may have been five years old. After her grandmother passed away, somehow it was decided that the sisters be separated and Sharon ended up at the parish house with the priest and his housekeeper. She was a very nice woman. She recalls travelling back and forth to Toronto Sick Kids hospital to deal with a heart condition she had been born with. She recalls having needed the surgery, or else she may have died before she turned six or seven. Sharon recalls having the surgery. Sharon understands that both her parents were unavailable to sign a consent for her surgery.
[33] Based on what she has read, she believes that before moving to the Cannon home she had lived with nuns in a convent. She recalls being warned by many nuns not to run, go out without a coat, not to get sick, and not to use stairs.
[34] Sharon believes she went to the Cannon home during convent breaks and summer holidays. Because the convent was closing, she had to move and ended up at Katherine and Vern’s house.
[35] When asked if there was any impediment to her father caring for her in cross-examination, Sharon responded that she was a member of the Thunderchild First Nation. She does not know if her father abandoned her. She does not believe that her father chose not to be involved in her life. Though her mother knew that her daughters were in Maynooth, she did not get them or visit them.Sharon denies that her mother abandoned her.
d. Katherine
[36] Before they came to live in the Cannon home, the plaintiffs were living in different homes. Darlene and Rose were at Katherine’s sister’s home. Sharon was staying in several different homes. The plaintiffs had been staying with Vern’s mother until she took ill with cancer. She had asked Katherine and Vern to look out for the children when she was no longer able to come home.
[37] Darlene came first in October or November when she was about four and a half years old. Rose followed a few months later, when was 18 months old.
[38] Vern’s younger brother Bobby had also come to live with Katherine and Vern while his mother was sick. He was about 14, in grade 7 or 8. He arrived a month or two before Darlene.
2. Living at the Cannon home - the assaults
a. Darlene
[39] Darlene remembers Katherine beating her with a belt, yelling at her and terrorizing her and her sisters. The beatings generally took place on the main floor of the house in the kitchen-living room area. She recalled Katherine saying things about her parents that were horrible to her.
[40] The first incident Darlene remembers occurred shortly after she arrived. Katherine beat her when she was sitting at a table in kitchen. Darlene spilled milk. Katherine came at her violently and beat her and sent her upstairs. Asked to describe the beating, Darlene testified that Katherine physically assaulted her, physically hurting her frantically. Asked where she was touched by Katherine, Darlene answered that she believed it was her backsideand her buttocks, with force. Katherine did not hit her face, arm, or legs. When asked how many times, Darlene answered a lot. She was just hit repeatedly. Darlene never expected anything like that to happen. She said she did not think she had ever known anything like that.
[41] When asked if Katherine said anything at that time of the incidentDarlene replied that Katherine made it clear to her that she was very angry, extremely angry. Following which, Katherine just grabbed Darlene and started beating her and then sent her upstairs.
[42] Katherine used leather belts to hit Darlene. The first was about 36 inches long, about 2 1/2 in wide. Katherine would fold it in half when she used it. Later she switched to a razor strap, a teacher’s strap. A retiring teacher gave Katherine a box with school memorabilia. Katherine used a strap from that box. The first belt was brown, the second darkish brown, black and it was woven.
[43] Katherine never gave an explanation for her use of the strap. She would just tell Darlene “You’re getting it” and Darlene never said anything in response unless Katherine demanded an answer from her.
[44] Darlene recounted how she would wake up for school and at breakfast she would see what kind of mood Katherine was in. Darlene feared Katherine because it was normal to be beaten by Katherine with her hand or a belt. It was a regular occurrence. If Katherine asked her a question and Darlene replied that she did not know, Katherine would beat her with a belt. If Katherine called her and Darlene did not come, Katherine would beat her. If Katherine learned that Darlene took her snow pants off at school or sat next to her cousin in church, she would beat her.
[45] When Darlene was eleven or twelve, Katherine beat her for having put on a boy’s green army jacket at school. After school, when Katherine learned from one of her daughters that Darlene had worn the jacket she told Darlene to go to up to her room. She told Darlene to lay down and then she whipped Darlene with the belt. On this occasion Darlene screamed as she was being hit. Another incident Darlene recalled occurred at her grandmother’s house. Katherine was mad at Darlene for something and beat her in the hall. Darlene went into a bedroom crying and her mother’s brother came in and molested her.
[46] Darlene saw Rosemarie being beaten. If Darlene cried when she saw Rosemarie being beaten by Katherine, Darlene would be beaten too. Darlene was asked if there were times she was whipped for what Rosie did. She answered that they were collectively whipped, not every time, it depended on Katherine’s decision as to how she would discipline us.
[47] Darlene knew that Rosemarie had seizures as a baby in Alberta and her parents took her to a medicine man.
[48] Darlene described Katherine beating Rosemarie until she stopped breathing and her face turned blue. Rosemarie was about two and Darlene was about five. She did not recall who was present or what Katherine was beating Rosemarie with. Katherine shook Rosemarie to get her breathing again and then continued with the beating. On many occasions, Katherine beat Rosemarie’s body so severely that she stopped breathing and her face would turn blue.
[49] In cross-examination, Darlene testified that Katherine hit her with a leather belt and later with school strap daily until she was about 11 or 12. After which, Darlene stated, Katherine kind of replaced it a bit with work. She also stated in cross-examination that being hit with a belt was replaced with grounding.
[50] Except for one incident when Katherine strapped Darlene’s arm, she would be hit on the buttocks, lower back and upper legs. While hitting, Katherine would be yelling loudly.
[51] Darlene recalled having bruises on her buttocks, upper legs and lower backs from being beaten. She saw her bruising in a mirror. She was ashamed of her bruises. She did not think anyone else was aware of her bruises. In cross-examination she testified that during the summer when the plaintiffs and Katherine’s daughters were attending swimming lessons, Katherine would know not to leave marks when they could be seen in bathing suit.
[52] Katherine’s daughters, Susan, Karen and Mary saw the beatings as well as Darlene’s sisters. Darlene and her sisters received the belt. Katherine’s daughters never received the belt, but they would have known what was happening to the plaintiffs. Anyone in the house would have known. If Karen says that no one was hit with a belt she is lying.
[53] Darlene could not recall Vern witnessing her being beaten or his seeing any bruising on her body. She does not think he would have seen where she was struck.
[54] When asked if the plaintiffs and the Cannon girls all received the same gifts, Darlene answered she and her sisters received different things.
[55] Darlene and her sisters were second class citizens in the Cannon home. At table, Darlene got huge chunks of fat to eat, that the Cannon girls did not.
[56] Darlene agreed that her cousin, Kim, spent a fair bit of time with the Cannon family when they were young. However, it would not surprise Darlene if Kim did not seen Katherine hit any of the plaintiffs because Katherine did not beat them in front of others.
[57] Darlene was asked if she ever reached out to anyone for help. She answered, no, Katherine told Darlene if she ever reached out to anyone for help, she would kill them. Darlene believed her. Katherine could smother any one of them and she was so articulate, she could say it was an accident.
[58] Darlene does not believe that Katherine cared for her and her sisters out of her own charity. Darlene believes she was compensated. She believes that Katherine hit the girls for sport and her own enjoyment.
b. Rosemarie
[59] Rosemarie’s earliest memory of living with the Cannon family was of an incident that occurred before she began going to school. She guesses she was about four or five because she did not have a diaper on. Katherine found her in the bathroom filling a small aspirin bottle with water. Katherine was very angry. Katherine grabbed her by the shoulder and dragged her downstairs, hitting her on the bum with her hand as she did. Katherine threw her on the couch. She was told she had to stay there because she was bad. Katherine hit her on the bum a lot.
[60] Sometimes Rosemarie would get hit because Katherine would send her to get something, her smokes, her lighter, or a book, and if she did not remember what she was supposed to get, she would often get the belt for forgetting. She described how she would panic if she could not remember what she was supposed to get. Rosemarie testified that if she forgot, sometimes Katherine would hit her with her hand on her butt, up to five times. Katherine hit her on the bum a lot.
[61] If her sisters were home, she had to get them to come down to the kitchen, where all would line up and get the belt because of her, because she was bad. Normally, she would stand still in the kitchen and be struck with the belt on her butt. She does not recall being struck with the belt in any other room. In other rooms she was struck by Katherine using her hand. Katherine struck Rosemarie too many times for her to remember.
[62] Rosemarie stated that the majority of the time the three plaintiffs were beaten together.
[63] Katherine only hit Rosemarie and her sisters with a belt. The only people who saw it happen are the plaintiffs and Katherine’s three daughters. Vern was not present. Rosemarie remembers Mary being there when she was hit with the belt, but not Karen. Rosemarie could not be hit with a strap without everyone in the house knowing.
[64] Rosemarie does not recall ever seeing a bruise on her body from being hit. However, she explained, she was not looking at her body where she would be hit. If she had any bruises, her bathing suit would have covered them.
[65] Rosemarie’s cousin, Kim, is close in age to Rosemarie. They spent a fair amount of time together, but Kim never saw any signs of abuse.
[66] Rosemarie does not remember all of the incidents. Her memory comes to her in pieces. If asked about it, the pieces will come back.
c. Sharon
[67] Sharon was beaten by Katherine and, on occasion, by her daughter Karen. Although Sharon claimed that Katherine beat her on a daily basis, she does not recall that now.
[68] Sharon moved into the Cannon home when she was ten. When asked about her memories of the Cannon household, Sharon said she was terrified, everyday. It was an atmosphere of walking on eggshells, never knowing whether you were going to be beat for something you did or didn’t do. Sharon had seen Katherine with her belt strap, hitting/beating sisters Rosemarie and Darlene.
[69] Sharon remembers Katherine beating her sister Rosie with a razor strap for crawling under the table when she was four years old, beating her sister on the back. This was the first time she felt terror for what this woman could do and was doing.
[70] Sharon was beaten on several occasions. Her most vivid memory happened in kitchen. She was unsure what led to the punishment, but she remembers being beaten repeatedly and blood coming from her face. She added that she got into trouble for something and Katherine and her daughter Karen were beating her around the head and face. Sharon did not move. It stopped when someone came to the door
[71] Katherine made physical contact in the kitchen with her head, nose, face, body and upper chest, anywhere she could make contact, in a violent rage-fueled beating. Sharon believes that a lot of other incidents have been blocked, but she does have memory of a lot of acts of violence against sisters, referring to the use of a razor strap or the leather belt, or on occasion using her hand.
[72] Sharon recalled that Katherine used a belt, a razor strap folded in half. Sharon also had a memory of Katherine using a broken spoon, but Sharon stated she did not know if this is a true memory. The belt was kept in the kitchen drawer, and believes it was the one closest to the stove.
[73] Sharon was asked where Katherine would strike her. She answered that Katherine struck her on her face. “I’m positive”, she said. Sharon said she knows Katherine hit her on her nose. There was blood running. However, Sharon could not recall ever seeing bruises on herself or on her sisters.
[74] Sharon was asked to describe other incidents of beatings. She said that, other than a couple of incidents, she does not recall. The rest of her memories appear to have been blocked. She stated that she could swear that she didn’t get hit, but she has been told that’s inaccurate and not true. She has talked to a psychologist about it. Apparently, “I was beat very frequently and I only recall a couple of incidents”. Additionally, she said she was told that she was beat often, apparently with a belt on numerous occasions, but she did not recall those.
[75] She recalled more of a feeling of constant fear, trying to stay out of the way, trying to always please Katherine. She had general feelings of, what she believes was PTSD, living in that home.
[76] Asked specifically how many incidents she did remember, Sharon said two incidents in kitchen: the one incident when she was beaten on face and a second incident, also in kitchen, when she was physically assaulted for some time. Sharon did not recall the reason why. When Katherine was done flailing, Sharon asked her if she was done. She thinks that may have shocked Katherine and she stopped beating Sharon. Sharon thinks she was maybe 13 or 14, in her early teen years.
[77] After a beating, generally Sharon would just go up to bedroom get away from Katherine. Other times Katherine made Sharon sit on the sofa for hours and hours. If Sharon fell asleep Katherine would yank her hair to wake her up. Katherine probably said something like “I told you not to sleep, don’t do that again”.
[78] Katherine called Sharon a little whore, a little slut, a little tramp. Katherine told her she would have a child in every province with different men.
[79] Sharon did not tell anybody about the beatings, under fear of death. Katherine did not say anything, but Sharon understood that what went on inside the house stayed in the house She was not to talk to people. There was not really anyone to talk to and if she did tell anybody, she did not know if they would believe her.
[80] When Sharon was maybe fifteen or sixteen, Sharon contacted the Children’s Aid Society (C.A.S.) by telephone. She spoke with Gerald Campbell and told him she wanted to meet with him when Katherine was out of the house. Mr. Campbell came to the house when Katherine was not home, but before Sharon could tell him anything, Katherine came home early. Sharon thought she was dead. Katherine told Gerald it was a misunderstanding. Katherine explained it as some miscommunication and that they could work through some problems. Sharon thinks she just shut her mouth. Mr. Campbell left the house no wiser as to why Sharon called him.
[81] Sharon said that she wanted to speak to Mr. Campbell about the treatment she was receiving from Katherine and her daughters, about things that were not right, that separated Sharon and her sisters from her family and what was happening. Specifically, she wanted to tell him that they were not being treated fairly. Sharon did not realize there were abuses at the time. She wanted to tell him about the labour, the chores at the time that Sharon and her sisters were to complete and that Katherine’s daughters did not really do anything
[82] Sharon also remembered a second meeting with someone from the C.A.S. She thinks it might have been when she was in grade school. That morning she got into Sunday best clothing, which was unusual. She went to school. When she returned home, men were there in suits from the C.A.S. They asked questions about whether Sharon wanted to go back with her mother. Sharon answered, no, she wanted her sisters to come with her. She said she would only go back if her parents got back together. Sharon was not truthful because Katherine was there the whole time. She was afraid she would to be punished when they left.
d. Katherine
[83] When Rose and Darlene first arrived, Vern was working shift work in the Bancroft area. Katherine and Vern received no money for Rose and Darlene. Gerald Cannon gave them no money.
[84] Katherine recalled that Rosemarie was a very cuddly child. She was willing to climb up on anyone’s lap and cuddle up. As she moved to teenage years, she was a very intelligent child. All of the plaintiffs did well in school.
[85] Darlene was a little harder to warm up when she arrived, but she settled in. She got along with her teachers well. In high school she began to rebel some.
[86] Sharon arrived later. She was between Mary and Karen in age. Sharon did very well in school. She was a hard worker. She liked housework. She was very intelligent and outgoing.
[87] Katherine denies the allegations of the plaintiffs. She never used a belt or a strap to discipline the plaintiffs or her own children. Katherine did not have a belt or a strap from school. A teacher never made a gift of teacher strap. She did not have a razor strap in her house.
[88] All children in the Cannon home were disciplined. The only physical discipline Katherine used with the plaintiffs and her own children was slapping their hands. She never used any other form of physical discipline
[89] There was a hot oil stove in kitchen. Three or four times Katherine had to slap the children’s hands to teach them not to touch that oil stove. She also set up chairs around the stove, but they would crawl under or go around.
[90] Katherine never spanked hands for any other reason than the stove and the highway. She only had to do it 4 or 5 times and that was it. They were good learners. As they got older, the discipline she used was to take privileges away, things like not watching television at night.
[91] Katherine has no recollection of Rosemarie playing with an aspirin bottle, but she never beat her. When Rosemarie first came she would have seizures. Katherine would slap Rosemarie on her diaper. She recalled Rosemarie sitting at the cottage in the sand at the edge of the water. She was splashing water with a shovel. There were a whole lot of people there, five or six woman with little ones. Rosemarie started to lean from side to side. Katherine thought she was falling asleep. She picked Rosemarie up and she was blue. One of the woman there was a nurse. She told Katherine to shake Rosemarie. The nurse slapped her on the diaper. Katherine took her to a doctor who said it was a slight seizure. The doctor told Katherine if it happened again she was to do what the nurse did. It happened three or four times before Rosemarie started school and Katherine did what the doctor said. It happened in the kitchen or bedroom.
[92] Katherine denied that she disciplined Rosemarie with a belt or that she disciplined her together with her sisters.
[93] Katherine is not aware that Darlene or any of her sisters spoke the Cree language when they arrived.
[94] It is not true that Darlene spilled milk and Katherine beat her, Katherine never hit Darlene with a belt. Katherine did not call Darlene a whore, tramp or a slut at any time. She did not beat Darlene if she cried while Katherine was beating Rosie. She did not beat Rosie. She did not beat Darlene for wearing a boy’s green army jacket.
[95] Katherine did not beat Sharon. She did not beat her in the kitchen. The plaintiffs started to call Katherine “Mum” on their own. Katherine and Vern did not discourage them. Katherine did not call Sharon or her mother a slut, whore, or tramp.
[96] Katherine recalls that a social worker, Mr. McAlpine, came to talk about family reunion planning. She could not recall if he was from the C.A.S. He realized when he came that there were more children in the house than Sharon, and Katherine explained who they were. He made arrangements for Darlene and Rosemarie to get glasses. He also made arrangements for dental work for the girls.
[97] She also recalled another social worker, Mr. Esford, out of Bancroft. He came about once a month, for about three years. He possibly started attending in the 1960’s.
[98] Katherine did not recall anyone else that attended at the home. She was shown business records that suggest Gerald Campbell met with the family on many occasions, but Katherine did not recall that. She does not know who Mr. Campbell is.
[99] After Sharon came, Katherine received $1.75 per day for Sharon. She received nothing else for the first five years. Then she started to receive the baby bonus. She put that in bank for the plaintiffs. She started bank accounts for each one of them and her own children as well. When the plaintiffs left, they each had $1,000 or more in their accounts. After the girls left, Katherine gave the bank books to Gerald’s wife.
[100] All of the children got the same things for Christmas such as pyjamas and slippers. Gerald never brought them gifts.
[101] The photos entered as exhibits are accurate. The plaintiffs appear as frequently and as favourably as Katherine’s own children, camping, at the cottage and lakes, at first communion and confirmation.
[102] In cross-examination, Katherine confirmed a document she had signed at the convent with respect to Sharon. Dated October 1, 1969. She did not read the document when she signed it. She did not feel there was a need to. She understood that it was to transfer the funds that the convent was receiving for Sharon to her and Vern. Katherine acknowledged that the document she signed contains a statement “for as long as the Child resides in their home the wife shall refrain from engaging in gainful employment away from the home.” Katherine agrees that she did engage in employment. Asked why she breached the agreement, Katherine replied that she had no idea that the statement was there and they needed the income.
[103] Kim Kempt is Katherine’s niece, Katherine knows her to be honest. In cross-examination, Katherine was asked why Kim testified that she may have remembered Katherine threaten the plaintiffs. Katherine replied she does not know what Kim was referring to. Apart from things like telling the plaintiffs that if they got home late from the dance, they could not go to the next dance, Katherine did not have to threaten the girls. She had no problems with them until they went into high school. In high school they started to rebel and did not finish high school.
[104] In cross-examination, Katherine was asked whether she considered the plaintiffs to be her daughters. She replied that the girls fit in to the home very well. To her and Vern it felt like they were their daughters. There was a comfortable feeling, Katherine said, they fit as a family. The plaintiffs appeared to be happy and comfortable in the Cannon home. Not once did they ever complain about not being happy.
[105] Katherine never referred to children as Gerry’s bastards. She never referred to them or their mother as whores or by other names.
e. Vern
[106] Vern Cannon testified the day before his eighty-fourth birthday. He was generally working in Bancroft when the children were young and while the plaintiffs were living in his homes.
[107] Vern never saw Katherine strike any of the children. He did not see her slap any of the children. He never heard from any of his children or nieces that they were being hit with a belt. There was no belt or razor strap kept in a drawer in their home. He never saw any injuries or bruises on any of the children from being strapped.
[108] His children and his nieces got along very good. He recalled them doing their homework, playing music and dancing. On weekends they went camping. The kids knew how to swim. They spent time at lakes with them. When there were six girls in the house, they regularly saw other members of his family and Katherine’s family. They all seemed to mix very well with each other.
[109] Vern did not remember Rosemarie having any seizure, nor could he recall her getting any medical attention because of a seizure.
[110] Vern does not know how old the plaintiffs were when they left.
[111] Gerald passed away a few years ago. Gerald never confronted Vern or suggested to him that his children were abused.
f. Karen and Susan (Katherine’s daughters)
[112] Susan is 62 years old. She is the oldest daughter of Katherine and Vern. Karen is 61. She is the middle daughter. Their younger sister Mary is on long term disability, after having a serious stroke 5 years ago.
[113] Karen recalled her cousins coming to live with her family. Darlene came first. Karen is about two years older than Darlene. All she knew was her grandmother was not well and the girls needed a home. Rose came next. She was just under two. She remembered her dad’s youngest brother, Bobby, coming too. He was fifteen and stayed about a year. Sharon lived with a senior lady and spent several years at convent in Combermere before coming to stay with the family.
[114] All of the girls went to the same school when they got to school age. Their mother did janitorial work at the school. On a nightly daily basis, she did cleaning, sweeping, dusting and organizing seating. On weekends there was more work. The sisters and the plaintiffs helped. If someone had heavy duty homework or a test next day, then she would stay home. A couple of girls would also stay home to make school lunches and a couple would go to help at school.
[115] The chores at home included: helping with dishes, keeping bedrooms tidy, and bringing in wood for wood furnace.
[116] Her cousins were definitely not treated any differently than she and her sisters.
[117] During the two summer months she and all her cousins would go to Mackenzie Lake where they camped the entire summer. There were enough children there to make ball team. The men would leave from there and go to work.
[118] They celebrated Thanksgiving with their cousins and at Christmas there were many visitors coming and going. Before and after Sharon arrived, all the children in the house received gifts. There was no favoritism. Birthdays were the same. They were all treated the same. For the first year, and up to four years following, the girls’ father Gerald had little to no presence. Karen thinks he was getting his own life straightened out. Karen recalled an incident when Gerald came to take girls for Sunday drive and he had been drinking. The girls were dressed and ready, but her mother would not allow him to take girls. This was only time Karen witnessed Gerald in that state. He did not return for some time.
[119] After the first four years, Gerald was in their lives and started to come to see them. He would come and pick up the girls for a Sunday drive. He would treat them. He was always pleasant.
[120] Gerald married Karen’s aunt Loraine. He was working in Peterborough. He seemed to be happy.
[121] Karen never heard her mother speak negatively about Gerald to the plaintiffs. She never called him Gerry. He was always uncle Gerald. She never said “Gerry’s bastards.” The only person who called him Gerry was Loraine.
[122] Karen recalled that when she and her sisters were young, they were disciplined with a spank on the bum. Sometimes you were spanked on the hands, if you were doing something that could hurt you. More typically, if they were nattering at each other, they would be placed on a couch, what is called a “time out” now. They would have to wait on the couch for some time and were not allowed to leave.
[123] Karen remembers her mum disciplining plaintiffs as children, but had no recollection of her giving them a spank on the bum.
[124] Karen never remembers a belt or strap being used, the threat of a belt or strap being used, or a belt or strap being kept in a drawer. Her mum did not beat up Sharon. Karen never witnessed any bruising consistent with the use of a belt or strap.
[125] Karen never heard her mother use strong or abusive language. She never heard mother call a girl a whore. She heard no racist comments about their aboriginal heritage.
[126] Karen considers herself a First Nation person through her grandmother on her mother’s side. She became aware her heritage around grade five or six. Before her grandmother died, she started to teach Karen, Darlene and Rose about her native culture.
[127] Karen remembers Rosemarie having a couple of seizures. She remembers a big fuss. Something happened when she was little.
[128] Susan described the discipline she remembered receiving as a child. Her parents would give them a talking to and they would have to go sit on a couch, not being allowed to do anything. If it was near bedtime, they had to go to bed. Their mother did most of the disciplining as their father was at work.
[129] They had to do chores. The cousins, the plaintiffs, did the same chores as Susan and her sisters. Her mother worked at the school and they all shared the workload. Usually two or three girls would go with their mother to help at school. Sometimes they all went. There was no difference in the work done between the sisters and cousins.
[130] For fun, they biked, swam played ball, camped, skidooed and visited friends and relatives. The plaintiffs always came with them. They were treated as sisters. The plaintiffs called their parents, Katherine and Vern, mum and dad. There was no tension about that and it was not something that Katherine and Vern insisted upon. The plaintiff’s knew that Katherine was a native woman.
[131] Susan recalled that uncle Gerald would come sometimes and take the plaintiffs for a drive. Just once, Gerald arrived and had been drinking. Katherine did not let them go cause of that.
[132] At Christmas, all the girls would get gifts. If one got slippers, all did. If one got records, all got records.
[133] All the girls received gifts and had a cake baked on their birthdays. Susan was not closer to any one of the plaintiffs. She considered all three to be sisters.
[134] Susan never saw anybody in the house get hit with a belt or strap. There was no belt or strap in the kitchen. Susan never heard her mother or father threaten anybody with a belt or strap.
[135] Susan recalled that Rosemarie had some seizures when she was little, but they went away. When they happened she would get all red, then blue, all jerky. It was hard for her to breathe.
[136] Susan would try to assist her by putting her on her back to help her breathe. Her mum would help her.
g. Robert (Katherine’s brother-in-law)
[137] Robert Cannon is Vern and Gerald Cannon’s younger brother. He is not much older than Sharon. He was fourteen years old when his mother passed away and he moved in with the Cannon family. He lived with them for about a year. He recalled that the plaintiffs were also living there with the three Cannon children.
[138] Robert never saw Katherine discipline any of the children. He could not recall that Katherine physically hit any of the children. He never saw belt or razor strap being used, or anything like that. He could recall Gerald visiting while living in the Cannon home.
[139] He could not remember Rosie having seizures or having to be spanked on her diapers for her to catch breath.
[140] Robert had not spoken to anyone else in family about his evidence. He received a summons shortly before the trial.
h. Kimberly (Katherine’s niece)
[141] Kimberly is 54 years old. She is a member of the Algonquin First Nation, through her mother’s mother.
[142] She is a registered nurse and works in intensive care. Kimberly has known Katherine her whole life. Her mother is Katherine’s sister.
[143] When she was young, Kimberly saw Katherine on a regular basis, mostly on weekends, holidays, and during the summers. She knows Katherine’s children, Susan, Karen and Mary and also knows the plaintiffs and their sister Sandra. She saw Sandra less often. Kimberly is closest in age to Rosemarie. She saw them mostly on weekends and holidays, swimming, building forts, sharing meals, and going to church on Sundays. There was lots of music. The girls were all beautiful singers. Kimberly was very close to them, especially Rose. Kimberly often stayed with the girls in Katherine’s home and less often at Kimberly’s home.
[144] Kimberly has not spent time recently with Katherine. She found out about this lawsuit when she was served a summons, two or three weeks ago. She is not completely aware of the allegations. Nobody told her about it before and since receiving the summons she has not spoken to Katherine or her family.
[145] There were some occasions when Kimberly saw Katherine disciplining her children or the other children. She thinks it was often withholding something, such as having swimming taken away. She never saw any corporal or physical punishment by Katherine. She may have heard threats of physical punishment.
3. Katherine’s statements about the plaintiffs’ parents
a. Darlene
[146] Katherine told Darlene that she and her sisters were living at her house because nobody wanted them. She said her mother and father did not want them. Darlene believed her. Katherine told Darlene her mother was a drunken Indian whore, had 20 children across country and she did not want any of them. She said that her sister Rosie had a different father. Her mother slept with everyone. She was a terrible mother. Darlene’s testified her older sister had to go to the dump to get them food, and had to put a nipple on a pop bottle to feed her little sister. Katherine said they were like third world children. They had impetigo and swollen stomachs, and smelled when they arrived.
[147] Darlene testified that Katherine said her father was a drunk and a thief. Any cheque he had ever written bounced.
[148] Katherine painted a really awful picture of Darlene’s parents which made her feel bad about herself and her sisters.
b. Rosemarie
[149] Rosemarie testified that she had been told for years that mother and father abandoned her; that they did not want her; and that they wanted nothing to do with her. She was told that her father never came to see her or her sisters. Yet, she knows he did come. She said that she and her sisters would have to go upstairs and would see him come. Katherine would tell him they were not there.
[150] Katherine told Rosemarie and her sisters that her mother had kids all over and was a drunk, that her dad was a drunk. Rosemarie believed her. Rosemarie believed she was bad because she was native. Ask to recount specific incidents, Rosemarie responded that it happened numerous times, Katherine telling her and her sisters us over and over, on many occasions, things that were not true about their mother and father and them as children. Katherine told them they should be so lucky to be in her home, that they showed up with impetigo and swollen bellies. Katherine told them on numerous occasions that natives were dirty drunks and that is what they were going to be: drunks, whores, sluts.
c. Sharon
[151] Sharon acknowledged that she might have told Susan that out west she would sneak out of the house and go to the dump to find food.
d. Katherine
[152] Katherine denies she said terrible things about Marie Paddy. She had never met her. She did not know her. She did not know what she was like. Katherine never denigrated the plaintiffs’ native heritage.
4. Chores and school cleaning
a. Darlene
[153] Darlene and her sisters were forced to do household chores. They had to take out the garbage and pick it up outside with their bare hands when wildlife got into it. They had to vacuum, dust, and iron all day, everything but the socks and underwear. They had to wash the laundry with a roller washing machine and hang it out to dry. If they did not complete their tasks as instructed, they would get the belt.
[154] Darlene worked at the school. She used to clean out the toilet with her bare hands using Comet. Darlene had to wash the walls. She had to get fairly large pails of hot water and carry them up two flights of stairs from the basement.
[155] Katherine’s daughters did not work at the school so/as much.
b. Rosemarie
[156] Rosemarie had to help clean the school where Katherine was a custodian. It was something she regularly did, after dinner during the week and on weekends. She recalls cleaning the school with Katherine, her sisters and Katherine’s daughter, Mary. When Rosemarie was younger, Katherine’s older daughters would help clean the school.
[157] On the day she left, Katherine had sent her to clean the school by herself.
c. Sharon
[158] The typical routine at the house was being up early, even on weekends, scraping wax of floor with razor blades and cleaning the house. The house had to be spic and span at all times.
[159] Sharon recalled going to the St. Ignatius school and scrubbing toilets, scrapping wax with razor blades and hard labour, which included carrying heavy buckets up and down stairs. She had to do everything she was asked to do or she would receive a beating.
[160] During cross-examination Sharon was asked if she did more work than the other children in the home. She said that Katherine’s daughter Susan was never there, Karen was rarely there, Mary was there and her sisters were definitely there.
[161] Katherine had Sharon work as slave around house. She was not to fight with the other girls, she was not to backtalk or she would get the belt.
d. Katherine
[162] Katherine worked at the school where the children attended grades 1 to 8, Saint Ignatius. Everyday, Katherine had to clean the school. She had to sweep, tidy, clean washrooms and dispose of garbage. About once every 2 months, she had to do heavier cleaning, which took an entire Saturday. The children helped. It provided the finances for recreational things. The children who helped were probably in school two or three years before they would go with Katherine to school. When they were not helping they would play on the swings. Most of the time they helped willingly. They were good workers. Bobby did not help. He played hockey. After school whoever was available would help with what needed to be done, Katherine’s children and the plaintiffs as children. Katherine claims everybody helped with everything.
[163] The school was less than half mile from the family home. The children took a school bus or walked through a field to school.
[164] All the children had chores at home, such as doing the dishes in the evening. The children were not disciplined if they did not do chores.
5. Departure from the Cannon home and post-departure events
a. Darlene
[165] Darlene left the Cannon home when she was seventeen, when she learned from her sister Sharon said that she could leave when your sixteen. She left in the fall of 2017 and went to her sister Sharon’s apartment
[166] Darlene had never spoke with anyone about the abuse. In 1980, she told her dad a little of what had happened. He was furious. He told her it was alright now, it was over. In Darlene’s mind she was thinking it was over and she could not really do anything about it.
b. Rosemarie
[167] Rosemarie left when she was fourteen and moved to Peterborough.
[168] Rosemarie tried to get a social insurance number to open a bank account, but was unable to get a birth certificate with the name Rosemarie Canon. She blamed Katherine for not informing her of her real name. She connected this to her criminal conviction for creating a false document. However, in cross-examination, Rosemarie admitted that having reviewed all of the documents made available for trial, there was no evidence that Katherine knew her real name.
[169] In cross-examination Rosemarie was presented with a 1978 report prepared about her for a youth court judge. The report identifies Gerald, his wife Loraine, Sharon and Darlene as persons who were consulted. Rosemarie agrees that what is stated about Sharon and Darlene is accurate. She agrees that neither she or her two sisters raised anything about the history of abuse by Katherine. When it was suggested that it would have been in her interest to explain abuse, Rosemarie replied that when she left home she did not talk a lot, and that her sisters would talk to whomever on her behalf when she had difficulties.
[170] Rosemarie says she told her father about the abuse when she left the Cannon home, but she agrees that her father did not say anything about it that appears in the report.
[171] Rosemarie agrees with the report that when she left the Cannon home she drank a lot. She was having a lot of difficulty coping. While drinking and impaired, she would do things she did not normally do. Sharon would sometimes have to calm her down, and in doing so she would assault Rosemarie.
[172] Apart from the alleged abuse by Katherine and the assaults by Sharon, Rosemarie was also the victim of domestic assault, sexual assault and attempt murder, all of which had a terrible effect on Sharon’s life.
c. Sharon
[173] The weekend before Sharon left there had been a big fight about something. Sharon thinks it was about a false allegation of her doing drugs at school. She believes it was grade eleven as she did not finish grade eleven. Sharon the spent the weekend in her bedroom. She could not take it anymore; the verbal abuse, emotional abuse, sexual abuse, financial abuse became too much. She caught the school bus Monday morning and never returned.
[174] After Sharon left Katherine’s house she caught the bus to Peterborough where she lived with her father, his spouse and their son, her stepbrother. They may have her asked why she left. She knows she did not divulge any information. She never told anybody what happened in the Cannon house at that time. She does not know why.
d. Katherine
[175] All of the plaintiffs left the same day. Rosemarie left with Sharon first and Darlene followed about an hour later.
[176] After they had left, Katherine understood that they were in Peterborough with their dad. She no longer felt with responsible for them as they were with their dad. She assumed that they were all getting along and were well together.
[177] Katherine first find out that the plaintiffs were making these allegations suggesting she had assaulted them was when she saw the allegations on Facebook. She is not sure of year. It was a few years after appointed as the Algonquin representative. Darlene had sent a letter to Chief of Pikwakanagan Algonquin First Nation, claiming that Katherine was not Algonquin. At that time Katherine had already established her Algonquin heritage.
e. Susan
[178] Susan was living at home when the girls left. She remembers being upset as they each left. She remembers crying for weeks, because she could not understand why they would leave. Susan does not recall their ages when they left. She assumes they went to their father’s home in Peterborough
6. Regarding parents: Marie Paddy and Gerald Cannon
[179] Exhibit 12 is a document dated February 19, 1996 which appears to be signed by Gerald Canon.
a. Darlene
[180] Darlene admits her mother was alcoholic and that she was not able to care for her. She believes that she was taken from her parents because they were having marital problems, and domestic issues. So, they made arrangements for their children to come to Maynooth and their mother would follow. Then, her mother had problems and did not come.
[181] Darlene acknowledges her Father also had problems with alcohol. She has seen letters exchanged with Indian affairs stating her father was not going to be responsible for them.
[182] She believes that he came to the Cannon home to see his children and Katherine told him the children not there. On occasion when Katherine let the plaintiffs go with their father, she made her children accompany them.
[183] Darlene knows that her father did not sign an authorization for Sharon’s heart surgery, but she believes her parents were told by a doctor out west that Sharon was too young for the surgery. That is why Sharon was made a ward of the Children’s Aid Society.
[184] Rosemarie did live with her father for a period of time. She has no recollection of being asked to leave because she would not follow house rules.
b. Rosemarie
[185] Gerald Cannon was alive when this action was commenced. He is now deceased
[186] The exhibits tendered by Canada include a note written by him in 1963, acknowledging that the plaintiffs were taken into care and a letter from 1965 in which he states that he did not want to look after his children.
[187] Rosemarie says her father was not aware of Katherine assaults on the plaintiffs because Katherine would not allow him to see them. She believes he came to the house on more than one occasion and was denied access. When it was put to her in cross-examination that he was denied access when he came to see the girls and take them out because he was intoxicated, Rosemarie said she did not recall.
[188] Rosemarie stated that she did not know that her father took no steps to have the plaintiffs come live with him. But, she did acknowledge that her father was not willing to care for her. She was not aware that her father wrote a letter to the Criminal Injuries Compensation Board in support of Katherine.
[189] Rosemarie understands that both her parents struggled with alcoholism. Katherine told her that both parents were alcoholics. She accepts that that was true
[190] Rosemarie knows that her father refused to sign a consent for Sharon to receive life-saving surgery as a young child.
[191] In cross-examination, Rosemarie stated initially that she is not sure if she still believes that members of her band came from Saskatchewan to Maynooth and that the band members were physically prevented from seeing the plaintiffs by church members, as alleged in the statement of claim. Then, in cross-examination, she admitted that there is no evidence of that. Later in her cross-examination she agrees that it did not happen. She admits nobody ever came from Saskatchewan to get her and her sisters.
[192] Rosemarie does acknowledge that her mother never came to Ontario or met Katherine or Vern. She acknowledges documentation showing that her mother was unable to care for her. However, she refuses to place any responsibility with her mother or her father or acknowledge they abandoned her. Asked if she would agree that Katherine had nothing to do with her mother not coming to Ontario, Rosemarie says she does not know anything about that.
[193] Rosemarie wrote a novel about a mother who neglected her children. She learned in reform school that if she wrote things down and then burned what she wrote it could help her. The novel, she stated, is fiction but the abuse she suffered is true. Rosemarie denied that the statement of claim is a mixture of truth and fiction.
c. Sharon
[194] Sharon believed her father tried to visit her and her sisters when they were young, but was told they were not there. She does understand that Katherine stopped him from seeing them. She does not recall if he may have been intoxicated. She has no explanation for why he did not visit her when she was living in the parish house or convent, but she does not believe that he chose not to be involved.
d. Katherine
[195] For the first five years the girls were living in the Cannon home, Katherine did not see their father Gerald at all. Then she heard that he was in the area. Gerald often came to his brother Phil’s house in the area and began to date Phil’s sister, Loraine. They ended up getting married.
[196] There was one occasion Gerald came and Katherine refused to let him see his children. He was intoxicated and wanted to take children for drive. Katherine would not permit him to and told him come back in the morning. He did not.
[197] Katherine never heard anything from the Thunderchild First Nation about the plaintiffs.
7. Police report and complaint to the Criminal Injuries Compensation Board
a. Darlene
[198] In 1994, Darlene was in a car accident. Being off work gave her time to think. She started going to counselling. In 1995, Darlene made a report to the Ontario Provincial Police in Bancroft about what Katherine had done. She asked her sisters if they would like to provide statements. They did and Darlene reviewed their statements.
[199] In 1997, Darlene filed a complaint with the Criminal Injuries Compensation Board (the “Board”) concerning Katherine’s conduct. Darlene said that her father was aware of the complaint and the hearing but did not provide a statement or any evidence.
[200] Darlene was shown a document dated February 19, 1996 that appears to have her father’s signature on it (Exhibit 12). She denied that she saw the document. The document, she stated, was not in her father’s handwriting and it was not his signature at the bottom. Although the document was produced by her lawyer, she denied that it was sent by her father to the Board.
b. Rosemarie
[201] In 1995, when Darlene spoke to the police, Rosemarie understood that Darlene was trying to get some justice. Rosemarie prepared a statement. Before she gave it to the police, Rosemarie sent a copy of her statement to Darlene and discussed with her to make sure she put in her statement what was required.
[202] In 1997, Rosemarie and Sharon both submitted statements to the Criminal Injuries Compensation Board in support of the complaint Darlene filed.
c. Sharon
[203] Sharon recalls that her sister, Darlene, brought an application to the CICB. Sharon thought that the signature on the February 19, 1996 looked like her father’s signature.
[204] When Darlene made her report to the OPP, Sharon also submitted a report to the OPP. She probably sent a copy to Darlene. Part of the reason that Darlene made the report to the police is that she had found out that Katherine became chief. Darlene was upset that Katherine was involved in native culture. Sharon agreed to assist Darlene and help out in any way she could.
8. Katherine’s native status
a. Darlene
[205] Darlene does not accept that Katherine is a person of native heritage. Despite what Katherine says, what the Government of Canada says, and what documents may say, Darlene will not accept that Katherine is native.
[206] Darlene did not deny that the reason that she started this action is because she is angry that Katherine is masquerading as chief.
[207] Despite what Government of Canada says, despite what Katherine says, and despite any official documents she is shown, Darlene will not accept that Katherine is of native heritage. She denies that Katherine is the native granddaughter of John Baptiste. When it was suggested to her that she is seeking revenge, Darlene replied that it is a strong word, but she may be.
b. Rosemarie
[208] Rosemarie agreed that she said during her discover that part of her concern was to remove Katherine as an Algonquin chief. Katherine is not a native woman and Rosemarie knows that. Rosemarie grew up in the Cannon household. Katherine is Irish. Katherine is not the granddaughter of John Baptiste as she claims to be. Katherine fraudulently served as the band chief.
c. Sharon
[209] Sharon was surprised when Katherine was elected chief. Sharon was a little angry. She did not think Katherine should be chief.
[210] Sharon really does not have any opinion about whether Katherine is native or not. She understands sisters are quite upset, but Sharon does not really care what Katherine does or doesn’t do, apart from this case.
d. Katherine
[211] Katherine is Algonquin. Her mother was the daughter of Susan Baptiste, Susan was daughter of Chief John Baptiste. The plaintiffs dispute this. A complaint was made to Indian Affairs that Katherine was not Algonquin.
[212] Between 1990-2017 she was appointed as negotiating representative for the Algonquin community of the Bancroft area. She was employed by the Department of Indian Affairs through the negotiation treaty process. In 1994, Katherine was appointed Chief of the community as well as the negotiator. Several years later, Katherine was appointed again.
[213] In support of her claim to be the great-granddaughter of John Baptiste, Katherine produced a family tree with copies of her Certificate of Birth and Baptism and the entry in the Register of Marriages for her parents’ marriage (Exhibit 22). The marriage register shows Katherine’s mother’s mother as Susann Baptiste. They support Katherine’s claim that she is the granddaughter of Susan Baptiste
Analysis
[214] The determination of this issue, whether Katherine Cannon physically abused the plaintiffs as they allege, turns on the reliability and credibility of the witnesses.
[215] The allegations relate to events that began over fifty years ago, when the plaintiffs were very young. The defendants say Katherine Cannon physically abused them. Darlene and Rosemary say Katherine’s three children witnessed the abuse and everyone in the house knew it was happening. The plaintiff allege that Sharon and Susan witnessed the abuse and Karen participated in it. Katherine absolutely denies abusing the plaintiffs. Her husband and children deny any knowledge of abuse. Both versions cannot be true.
[216] The distinction between credibility and reliability was summarised by Watt J.A. in R. v. H.C., 2009 ONCA 56, at para. 41:
Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).
[217] The ability of a witness to give reliable evidence may be effected by the passage of time. The assessment of reliability and the effect of the passage of time was considered buy the Ontario Court of Appeal in R. v. Sanichar, 2012 ONCA 117, at para. 70. Although the majority decision was overturned on appeal to the Supreme Court of Canada with respect to the issue of how the trial judge was required to self-instruct himself, the discussion of reliability and the effect of the passage of time remains instructive:
[34] Even if the complainant appeared to be “sincere,” “truthful,” and “honest” – as the trial judge noted several times throughout his reasons – and even if the complainant believed what she was saying, it does not follow necessarily that what she was saying was reliable. Credibility alone, in this sense, is not enough. This is particularly important where the accused is facing charges based entirely on allegations of historical physical and sexual abuse, and where also -- as here – there were serious reliability issues.
[35] Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurate or reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in the evidence: see R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10-14; R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, at pp. 515-18; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295, at pp. 311-15.
[37] The allegations in this case relate to events that occurred many years before the trial, when the complainant was a little girl and a teenager. She was 36 when she testified.
[38] In such cases – cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse – particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred.
[39] Minden J. discussed these cautionary considerations in McGrath, at paras. 11-14:
Much of the author's focus is on the need for a particularly rigorous approach to issues of reliability given the frailties of memory of distant events: see: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.). The trier of fact's experience and knowledge about human nature and memory may serve to betray rather than guide in cases of this kind: see also R. v. M.(B.) (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.). Accordingly, careful scrutiny must be paid to the evidence: see R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.).
In that regard, a number of factors should be kept in mind. A witness' difficulty in recollection due to the passage of time must not lead to an "undiscriminating acceptance" of his or her evidence. A trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts. Such inconsistencies may disclose unreliability: see, for example, R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.). There must be a rigorous analysis of whatever independent, extrinsic evidence still exists.
A trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness: see R. v. Norman, supra. Nor does an abundance of detail in the recounting of an event necessarily imply an accurate memory. As well, a trier must bear in mind the "subtle and not so subtle influences" that may have over time distorted memory.
The influences upon the life of a witness over the course of many years also make it difficult to fairly assess an apparent lack of motive to fabricate. In this context, the trier must be particularly vigilant to ensure that the burden of proof is not shifted to the accused. A trier of fact must be alive to the fact that passage of time provides more opportunities for collusion or contamination between multiple complainants. This must be kept in mind when assessing the probative value of similar act evidence.
[218] Similar act evidence may be considered in a civil trial: Ontario (Attorney General) v. $5,545 in Canadian Currency (In Rem), 2011 ONSC 2827 at para. 27. No formal application was brought by the plaintiffs in this case. Nor did counsel for the plaintiff argue that the evidence of one plaintiff should be considered as evidence in support of the evidence the other plaintiffs with respect to whether the abuse occurred. Were such argument raised, I would not be prepared to admit the plaintiffs’ testimony as similar act evidence. Although the prejudice in a judge alone civil trial where all of the evidence is being received in any event is very low, the probative value is compromised because the likelihood of collaboration or collusion between the witnesses is high. I have no doubt that the witnesses have spoken with each other and discussed their allegations over the years. They spoke when reports were provided to the police and to the Criminal Injuries Compensation Board. Evidence of similar acts cannot be admitted. The probative value of such evidence has been compromised.
[219] All of the witnesses in this case presented as credible. The plaintiffs in particular, like the complainant in R. v. Sanichar, appeared to be sincere, truthful, and honest. I have no difficulty in recognizing that they experienced traumatic and tragic childhoods. It may well be that much of the trauma is attributable to their experiences in the Cannon home. However, the trial was not an inquiry. The Court’s task is not to determine what happened in the Cannon home. The issue I must determine is whether the plaintiffs have proven on a balance of probabilities the physical abuse that they allege occurred.
[220] In this case, the passage of several decades make it impossible for me to determine that the plaintiffs evidence is reliable. Considering all of the evidence, I am not persuaded that the physical abuse that they described actually occurred.
[221] Much of the evidence provided by the plaintiffs was framed in generalizations and lacking in detail and specifics. Testimony often included sentences that were introduced with the words, “I believe…”, “As I recall…”, “Sometimes…”. It is understandable that there would be some uncertainty given the passage of so much time. It was difficult, however, to understand what parts of their evidence the plaintiffs were actually certain of, if any.
[222] There were inconsistencies in the evidence of one plaintiff compared to another. For example, Rosemarie testified that the majority of time the plaintiffs were beaten together. She had to go upstairs and get her sisters to come down to the kitchen, where they would line up and get the belt because of her. Darlene testified about several incidents she remembered when she was beaten alone. She said she would be beaten if she cried when Rosemarie was beaten. They were not collectively whipped every time, it depended on Katherine’s decision. Sharon described the two incidents she recalled of being beaten herself and one incident she saw four-year-old Rosie being beaten with a strap, but no incidents of being lined up for a collective beating.
[223] Rosemarie acknowledged that she does not remember all of the incidents she believed occurred. They come back in pieces. Sharon testified that she could swear that she didn’t get hit, but she has been told that’s inaccurate.
[224] There are too many uncertainties and too many inconsistencies in the evidence of the plaintiff for me to determine that it is reliable.
Conclusion
[225] There is no question that the plaintiffs had a sad and tragic childhood. However, considering all of the evidence, the plaintiffs have not met the burden of proving on a balance of probabilities that Katherine Cannon physically abused them as they alleged.
[226] The action is dismissed against both defendants.
Costs
[227] If counsel are unable to agree on costs, written submissions no more than five pages in length may be made by the applicants within 14 days and the respondent within 21 days.
Corrected Release Date: October 25, 2019
[^1]: Canadian Tort Law, 11th Edition (Toronto: LexisNexis, 2018), at p. 51 (Tort Law)