SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17-0530

DATE: 2019 11 13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Michael Arthur Weil

Ms. J. Forward, for the Crown

Mr. Elzingacheng, for Mr. Weil

HEARD: October 7,8,9 and 11, 2019

Mossip J.

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

REASONS FOR JUDGMENT

[1] K.L. is the daughter of S.A. S.A. was in a romantic relationship with Mr. Weil during the period of time set out in the indictment: January 2007 to September 2008.

[2] K.L. is 17-years-old today. She told the police in 2016 that, when she was between four and six, Mr. Weil performed numerous acts of sexual misconduct on her.

[3] Mr. Weil testified that he never did anything of a sexual nature with K.L.

[4] Mr. Weil is charged with sexual assault (x2) on K.L., in Guelph and Guelph-Eramosa (Rockwood); with touching for a sexual purpose (x2) K.L., a person under the age of 16, in Guelph and in Guelph-Eramosa (Rockwood); that, in Guelph-Eramosa, he did for a sexual purpose, invite K.L., a person under the age of 16, to touch with her hands the genitals and body of Mr. Weil; that he was in breach of a probation order (x2), to keep the peace and be of good behaviour, in Guelph and in Guelph-Eramosa (Rockwood).

[5] A further count in the indictment was dismissed at the request of the Crown.

[6] Defence counsel concedes that if Mr. Weil is found guilty of the offences in the indictment, the breach of probation charges are made out.

[7] Counsel agreed that Mr. Weil’s videotaped statement to the police, taken immediately upon his arrest, could be played at the trial as part of the defence case pursuant to R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161.

[8] Counsel further agreed that the Crown’s Similar Fact Application would be argued at the end of the trial, and at the same time counsel made their submissions on the substantive charges. Depending on my decision on that application, the similar fact evidence may or may not form part of the Crown’s proof of the substantive charges against Mr. Weil.

Evidence at the Trial

Family and Children’s Services (“The Agency”) Records

[9] With the consent of counsel, the Agency’s records for April 2007 were admitted as business records for the truth of their contents, as evidence of telephone calls between the Agency and S.A.

[10] The records set out that the Agency had two phone calls with S.A. in April 2007 after the Agency was contacted by Mr. Weil’s probation officer. The probation officer told the worker that Mr. Weil wanted contact with S.A.’s children while he was in a relationship with her. His probation order provided that he could not be in the presence of any child under the age of 18 unless he is with another adult who has been approved in writing and in advance by his probation officer and his therapist.

[11] The Agency worker called S.A. to ensure that she knew about Mr. Weil’s prior criminal conviction involving a young girl. The worker told her what steps would have to be taken before Mr. Weil could be with her children to ensure they were protected.

Similar Fact Evidence

[12] As part of the Crown’s Similar Fact Application, a transcript of the proceeding at the time of Mr. Weil’s guilty plea in a prior court proceeding was filed.

[13] The transcript specified the misconduct involving another young girl, (M.P.), that Mr. Weil admitted to, and for which he was convicted and sentenced. That misconduct was as follows:

• Photo of M.P. fondling Mr. Weil’s genital area while she was dressed in a corset and garter belt; and

• Photo of M.P. dressed in adult lingerie in a sexual pose.

K.L. Examination-in Chief

1. Allegations

[14] K.L. testified that after her parents separated, she, her brother C.L., and her mother moved to a home in Rockwood.

[15] K.L. testified that when she was approximately four to six-years-old, she was sexually abused by her mother’s boyfriend at that time, Mr. Weil. She remembers the sexual abuse occurred after they moved to Rockwood and before she was eight years old.

[16] When she was eight, she was in grade three. Her teacher was explaining sexual abuse. She knew that the sexual abuse that happened to her had stopped by then. The teacher said that approximately one in five people are sexually abused. She testified that she thought at the time, “that’s me”; no one knew about what happened to her, and she wondered who else in the classroom it had happened to.

[17] She testified that she did not tell anyone about the abuse at that time, “mostly because I was scared”. Mr. Weil had not threatened her, but he had told her “sternly” not to tell anyone.

[18] K.L. testified that the sexual abuse happened at her home in Rockwood and at Mr. Weil’s home in Guelph.

[19] K.L. remembers that Mr. Weil was not at their home all the time; he didn’t live there. He was at her home on week-ends and for dinners. He was at her home after school sometimes when her mother was not there; sometimes he was there with her brother and her, sometimes with her alone. She remembers going alone with him to the hardware store on one occasion.

[20] K.L. remembers going swimming with Mr. Weil a couple of times at a pool; it could have been in Georgetown, Milton or Acton.

[21] K.L. testified that Mr. Weil did not play a “parenting role” with her. If her mom was home, she was the parent. Mr. Weil did not discipline her.

[22] K.L. described the sexual misconduct she says Mr. Weil committed on her in categories.

i. Showers

• Mr. Weil had showers with her in her home in Rockwood.

• The shower was in the bathroom on the top floor. This was the only shower in the house.

• Mr. Weil would make her wash him; he told her to wash him and where. She washed his back, his butt and his genital area.

• She used her hand sometimes and sometimes a “loofa” or “poof”. By this she means a “circle thing”; made of mesh, in a ball, with a rope attached.

• She remembers three different colours of loofas, one pink, one blue and one green. There was always one in the shower. If one wore out, it was replaced with a different colour.

• Mr. Weil would wash her everywhere; he would use his hands and the “loofa/poof” things. She was standing for all the washing. He washed her arms, chest, butt, and all her private parts, including her vagina. He used soap.

• She does not remember how long the showers lasted. They were “not short like five minutes; not long like an hour”.

• She does not remember if anyone was home at the time of the showers.

ii. Dress-up in Lingerie

• Mr. Weil would dress her up by putting on lipstick, bras and underwear.

• This happened in her mom’s bedroom and also in the downstairs bathroom.

• She remembers the bras and underwear were lacy. They were pink, and white. The bras were feminine and sexy; more La Senza than Walmart.

• She thinks he brought some of the underwear. She is 75% sure he had a little bag though she does not remember seeing him take the underwear out of the bag.

• She does not 100% remember if her mom wore the underwear.

• Mr. Weil put the underwear on her or would help her put them on.

• The underwear was too large for her. He would use elastic bands or hair bands on the underwear to tighten them.

• She remembers that the lipstick was red and pink. She does not know where it came from. She remembers he took a “tissue” or “T.P.” to pat down on her lips after he put the lipstick on.

• She remembers the lipstick was always put on when there were bras and underwear. Sometimes there were bras and underwear without lipstick. This misconduct mainly happened in her mom’s bedroom beside her bed, in between her bed and windows.

iii. Photos

• Sometimes the bras and underwear just came off; sometimes he would take pictures of her in the bras and underwear.

• When he took pictures, mostly she was on the bed; sometimes she was on the floor.

• She remembers white sheets, a lamb stuffed animal, and pillows.

• He told her what to do. She lay back on the pillows and sometimes on her side.

• When she was on the floor, she was by the end of the bed, on the ground.

• The camera was a hand-held type: the kind people take on vacation. It was not a professional camera. There was a strap on the right side to grip the camera. The lens came out of the body of the camera at the front when it was turned on. On the back of the camera, there was a screen and one could see the photos.

• Looking at this screen, she could see the photos he took of her and sometimes photos of her mom. He took the same kind of photos of her mother; in bras and underwear. She is 100% sure she saw pictures of her mom but not 100% sure of what her mom was wearing.

• He would ask her to do what her mom was doing and to position herself like her mom was positioned in the pictures.

• She only remembers pictures being taken of her in her bra and underwear one or two times; it was not ten times.

• She only remembers being photographed in her mom’s bedroom.

• She thinks the camera was silver.

• She was dressed in bras and underwear at least five times but less than 15.

iv. Touching

• Sometimes when she was in bras and underwear, Mr. Weil would get her to touch his penis by telling her to touch him. Sometimes she would stroke his penis; it was with her hand.

• She does not know if he had clothes on, or if clothes were on his bottom part. His penis was exposed. She does not know if his penis was flaccid or erect.

• Sometimes he put his sperm on her chest, and her stomach; he would have her eat it.

• Sometimes he used his penis to spread the sperm. He would kneel beside her stomach. She was lying down on her back. His sperm came from his penis. She did not know that it was sperm at the time.

• The sperm went on her stomach from his penis; he used his hand to move his penis. He wiped up the sperm with a tissue.

• This happened more than four times and less than 15 times.

• She would sometimes eat his sperm directly from his penis.

• She did not really like it. It seemed really weird. She remembers the taste of the sperm but cannot really describe it; the taste was not good. She had to “eat” the sperm more than four times but less than ten.

• Sometimes he brought the sperm in a “container”. He would put the sperm on her stomach with his hand. She was lying down on the ground.

• She knew it was the same thing he had put on her before because of the colour, texture and smell.

• She remembers the container was a small locked one with blue “seal clips” on the sides of the container to lock it. She saw the container at least three times and not more than eight times.

v. Penis in Bum

• Mr. Weil tried to put his penis in her bum. This happened in her mom’s bedroom.

• She could not remember if she was wearing clothes when he tried to do this.

• She would be on the ground on her knees; sometimes she would be lying on her stomach. She would be at the end of the bed and the wall would be about four feet away.

• This happened more than four times but not eight times. He tried more than once on each occasion.

• His penis went between her bum cheeks; it went into her anus. It felt very uncomfortable and it hurt.

• She would ask to go to the washroom; she asked multiple times. She asked for two reasons: she wanted to get away, and she felt like she had to go to the bathroom.

• When he was trying to put his penis in her bum it lasted for more than ten minutes but not an hour.

• She does not remember him saying anything to her. She just remembers asking if she could go to the washroom.

• She kept trying to move away when he was doing this.

vi. Memories of Other Misconduct

[23] On one occasion, she remembers that her brother interrupted them. They were in her mother’s bedroom. Her brother knocked on the door, but it was locked by a lock on the handle. There was something sexual going on but she does not remember what exactly.

[24] She was very nervous and told her brother not to come in. It was around Christmas and she told her brother that she was wrapping his Christmas present and that’s why he could not come in.

[25] She remembered that Mr. Weil was very angry; he did not want her to say anything. He said in an “angry tone” that she should not have said anything and that she should have let him handle it. She immediately felt sorry because he was obviously very angry with what she had done. She does not remember other times he spoke in an angry voice.

[26] She remembers one time that something happened at Mr. Weil’s house. She remembers that his house was off Woodlawn Road near a golf course. She remembers the house had brown shingles and that someone lived on top and someone on the bottom. She entered Mr. Weil’s house on the ground level. There were stairs when you entered the house that went upstairs.

[27] She remembered that she got pink bras and underwear on this occasion; Mr. Weil helped her get into them. She does not know where the bras and underwear came from.

[28] K.L. testified that one time they were going to Home Depot and there was a gas station on the right as they entered. Mr. Weil said he would get her and her brother a chocolate bar. He said he would get her a second one if she did what he asked her to do.

[29] K.L. remembers it was a hot day and they put the chocolate bars in the fridge when they got home. She does not remember if she ever got the chocolate bars.

[30] K.L. does not remember liking Mr. Weil; she does not remember not liking him.

[31] K.L. remembers that on one occasion in the Rockwood house, she was in the stairwell landing on the way to the basement. Mr. Weil told her in a stern voice not to tell anybody about what he did to her. She mostly felt scared when he told her this. She did not feel scared of Mr. Weil on other occasions.

vii. Pornography

[32] K.L. remembered watching adult pornography on a T.V. screen. She thinks it was on a DVD and it came from a laptop bag.

[33] She saw some other pornography that involved children. She saw it on a computer which was on a desk as part of the cabinet. She remembers seeing other girls on the screen and that they were about her age at the time. She said, “I was a kid and they were kids”. They were with older middle-age men; they were sucking their penises.

[34] K.L. testified that she saw pornography on more than one occasion. She would be sitting in the living room. Mr. Weil would be sitting on the chair and she would sit on his lap.

[35] She testified that she watched the pornography for longer than two minutes but not as long as an hour. She does not remember if Mr. Weil said anything to her or if she said anything to him while they were watching pornography.

2. Disclosure

[36] The first time she told anyone about the sexual abuse was in October 2016, the year she was in grade 9.

[37] K.L. told her physical education teacher Ms. Ackroyd what had happened to her. She is not really sure why she told her. Ms. Ackroyd said at the beginning of the school year that the students could talk to her and that she would be there for them. K.L. said Ms. Ackroyd was very welcoming.

[38] K.L. testified that in a health unit in the physical education class, they had learned about topics such as safe sex and sexual diseases. There were questions on pieces of paper around the room to encourage the students to be thoughtful. On one of the pieces of paper it said, “why would someone not disclose a sexual assault?”

[39] K.L. said her reaction after reading that question was nervousness; she thought others might know. Her face went red thinking about her abuse.

[40] After the class, while she was walking home, she was thinking about everything that had happened to her. She was very nervous. She made an appointment to talk to Ms. Ackroyd. She did not really think about what she would have to do, regarding the police, a counsellor, etcetera.

[41] After she talked to Ms. Ackroyd, K.L. also had to talk to the school’s child counsellor, Bill. K.L. told Ms. Ackroyd and Bill some of what she testified to in court; she gave them less detail than she told the police and court.

[42] Bill called K.L.’s mom and told S.A. generally what had happened to K.L. K.L. has not talked to her mom about what actually happened. Since her disclosure, she has talked to her mom about the court process and how she is feeling. She has not talked to her mother about what happened to her.

[43] She did not talk to her mom about details because she did not want to; it was awkward. Also, she was told by the police, her lawyer, and the Crown Attorney, not to talk to her mom about any details.

[44] K.L. testified that she does not know anything about Mr. Weil from her mother. She does not know what his criminal record is. She knows something happened before because one of the charges against Mr. Weil is for breach of a probation order.

[45] K.L. testified that she does not know M.P. (the complainant named in the similar fact application).

K.L. Cross-Examination

[46] K.L. testified that she was around four when she first moved to Rockwood after her parents’ separation. She does not remember what her visitation schedule was when she first moved there. Her father did pick her up sometimes from the school after she moved to Rockwood.

[47] K.L. testified that she remembers her mom went back to school, but she is not sure when or for how long. Her mom was her primary parent when her parents first separated; she looked after them. If her mom was at school at night, her cousin, Heather Smith, would look after her and her brother and get them to school.

[48] K.L. testified she does not 100% remember if her mom was working or going to school when they moved to Rockwood. Her grandparents (mom’s parents) lived in Acton, about a ten-minute drive from Rockwood at the time. They sometimes stayed with her and her brother when their mom was at school or working.

[49] She remembers one day her mom said they were going to meet Mike (Mr. Weil) at a Tim Hortons in Acton. She was confused when her mom said “Mike” because she had an uncle named Mike and she wondered if they were going to see him. This was the first time that she had met Mr. Weil. She did not know whether Mr. Weil worked or not at the time. She did not know what his schedule was. She does not remember him living with them. He had dinners with them, and he stayed on weekends.

[50] She remembers that her dad would come and get her and her brother from school for a visit. Sometimes she did not want to go with her dad, and she stayed home. Her mother and Mr. Weil would be at the house at that time.

[51] She remembers that Mr. Weil had a son. She thought his son was older than her. She did not know if Mr. Weil had more of a relationship with her brother than with her.

[52] Mr. Weil did not parent or discipline them; he was more her mom’s boyfriend. He was connected to her through her mom. She does not remember that his looking after them was scheduled in advance. It could have been, but she does not remember that. She thinks it was more a last-minute thing for him to look after them.

[53] She agreed that her memories of what she says happened in 2007 and 2008 are based on her looking back from the perspective of a seventeen-year-old. There are pieces of memory that she has put together as a story. She does not remember anything more now than she did when she was eight. She has no new memories, but she has put some context to her memories.

[54] She gave an example of what she meant by “context.” When she was four or six, she could not say that Mr. Weil lived off “Woodlawn” as she testified in court that he did. She can say the street name now as a seventeen-year-old because she has been out on the road and driven it and she knows that is where he lived.

[55] With respect to the photographs that she said Mr. Weil took of her, she agreed that she did not say anything about photographs in her original statement to the police on November 8, 2016, when she was in grade nine. She also did not mention that Mr. Weil took photographs in the preliminary inquiry on September 25, 2017. It was in the summer and fall of 2018 that she told the police that Mr. Weil had taken photographs.

[56] K.L. was asked specifically whether she viewed any of the materials filed by defence counsel on an Application he brought prior to trial for production of certain Agency records. K.L. replied “I don’t remember viewing anything”. K.L. said that she did not read anything with respect to the application filed by Mr. Weil.

[57] K.L. testified that all she knew was that a lady was going to represent her and her mother’s best interests. She knew that there was some Application, but she did not know when it was being heard or what it was about.

[58] After she initially told Ms. Ackroyd what had happened to her, one or two women came from the Agency to speak to her. She spoke to a lady on the phone and to another person about this matter. She did not view any records from the Agency She was adamant that she had not seen anything from the Agency.

[59] It was after the spring of 2018 that she went to the police and told them about being photographed. She denied that there was any correlation between the Application of Mr. Weil for the Agency’s records and her memory of being photographed.

[60] She testified that the lady on the phone said that the defence wanted documents from the Agency from when she was a child. That is all she knew. Her memory about being photographed came a couple of weeks before September 2018. She told her mom that she had to speak to the police. It was the end of August or beginning of September. She told the police on the phone that she wanted to make a further statement. She did not give any details of what she wanted to say when she spoke on the phone.

[61] She knew that Mr. Weil had breached his probation because it was on the court documents; that is all she knew of his criminal record.

[62] She agreed that she did not initially tell the police that Mr. Weil put his penis in her mouth. She was referred to her preliminary inquiry transcript, where she was asked about that, and she said that, “I didn’t explain every single thing that happened, and it was just, it was almost, I was, super uncomfortable in the situation, and it was, I just got the gist of it out, and like I answered the questions”.

[63] At the trial, she said she did not purposefully leave things out. She said, “I remember things on different days”. If she is prompted by a question, then it comes out. She can give an answer “yes” or “no” if she is being asked. She cannot remember on her own. She remembers things when she is asked certain questions. It is not that she does not have a memory. She didn’t remember about the penis incident when she initially spoke to the police; she remembered at the preliminary inquiry when she was asked questions.

[64] K.L. was asked about the container that she said had sperm in it. She was referred to her first police statement on November 8, 2016, when she was speaking about this container. At that time she said, “I don’t remember exactly how it happened. I just remember that there like, he put, like I don’t know if he like had it in a container, or, I’m not sure”. At trial, she was less than 100 percent sure he had the sperm in the container. She is more confident in her memory on that issue today than she was then. She testified that she uses ranges or percentages depending upon how strong or certain she is about the memory. It really was a long time ago. Sometimes she is not certain. Her memory can be stronger, weaker, or can change depending on when she is asked a question and how she is asked.

[65] K.L. testified that she is not sure how long Mr. Weil and her mother were together. She believes it was at least a few months. She remembers him coming to family occasions.

[66] She thinks that her mom met Mr. Weil at a computer store. She did not know any of the details about Mr. Weil, but she remembers seeing a picture of his son on a bridge. It is possible that her mom told her details about Mr. Weil. She does not remember if she did or did not. She does not remember what her mom and Mr. Weil’s relationship was like. She remembers he was there for dinners. She does not remember the ups and downs of their relationship.

[67] She remembers on one occasion that her mom said, while she was in the car, that Mr. Weil had proposed to her, but she had said no, and that she would not be seeing him again. She remembers wondering why Mr. Weil did not come around anymore. She does remember wondering “what the heck happened?” She has no memory that she asked her mom about this. It is possible that she did.

[68] She agrees that she did not say anything when she was in grade three after her teacher had spoken to the class about sexual abuse. She did not at that time say anything about what she says Mr. Weil did to her. She was afraid of Mr. Weil. K.L. testified that she was not afraid of Mr. Weil when she was in the house and he was doing things to her. After he had left, she was scared of him coming back. She does not remember anything Mr. Weil said to her that would have made her afraid of him. Her mom may have said something, and she may not have.

[69] She does not remember anything distinctive about Mr. Weil’s body. He could have had tattoos and piercings, or he could not have.

[70] When confronted by defence counsel with the suggestion that Mr. Weil was never alone with her during the time that he dated her mother, K.L. testified that she was 90% confident that there were times that she was alone with him. She was 100% sure that she was alone with him the time that they went to the Hardware store. She is 100% sure she was alone with him at his house one time. She also went to his house one other time with her mom and her brother.

[71] As to whether Mr. Weil wanted her at his house, K.L. testified “he may not have wanted me there, but he brought me there alone once and he brought me there with my mom”.

[72] When asked about the pornography that she saw, she said that she remembered that adult pornography was on the T.V. and that there were men and women in the video. She does not really remember what they were doing. She remembers they were naked, and this is what led her to believe that it was pornography. She saw the child pornography in her living room. She does not know how it got onto the computer.

[73] When defence counsel asked her about telling the police that he had “erased his history on the computer”, she testified that she did remember that he was “urgent” and “frantic” and fiddling with something on the computer. It is possible he was deleting things. It is also possible he was searching Google.

[74] K.L. disagreed that Mr. Weil never showered with her or locked himself in a room and dressed her in bras and underwear. She disagreed that he never watched pornography with her, and she disagreed that she never went to his house.

Reply

[75] K.L. testified that she had no details about the Application for the Agency’s records, other than what she said in court.

[76] With respect to her memories, she testified that she learned from her psychology class about memory and she has also experienced how memory works. Memory is not like an automatic replay button. Memories can change.

[77] She testified that her memory has not changed about the bras and underwear and she remembers that now; she remembers now that the lingerie was pink and white, though she does not think she remembered the colours previously.

[78] The Crown asked K.L. if she knew that Mr. Weil was convicted of sexual assault and had taken photos of that sexual assault. She testified that she had never heard that before today. She thought that Mr. Weil had been involved with drug charges.

S.A. Examination-in-Chief

[79] S.A. is the mother of K.L. She also has a son named C.L. Both of her children lived with her in her home in Rockwood. She began her separation from their father in 2006.

[80] In February 2007, she moved with her children from outside of Acton to a house in Rockwood. At this time, she described herself as fragile and vulnerable. She struggled with mental health issues at that time and had done so previously. At that time, she had just spent three months in a mental health facility in Guelph called Homewood, after experiencing a mental health crisis. She went back with her ex-husband after the stay in Homewood, and then she moved with the children to Rockwood.

[81] She met Mr. Weil online. Initially, he was really good to her; he was supportive, kind and caring. Over time, things changed and their relationship became toxic, unhealthy and abusive. The relationship with Mr. Weil ended about a year and one-half after they met.

[82] Mr. Weil was her boyfriend. He did not move into her house. After they started dating, he was at her home often. He was a “presence” in their lives. At that time, she was not worried when Mr. Weil was at home with her children.

[83] She went back to school in September 2007, to become a personal support worker. She took the course in Guelph. She worked part-time hours during the day. She had placements with her studies that started early in the day and were 12-hour shifts. Her course started in September 2007 and ended in May 2008.

[84] When she graduated from her course, she got a job with Community Living. Sometime before she graduated and after her program started, she worked part-time, while she was studying.

[85] She worked at Community Living for six to seven years. She worked part-time hours, two weekends of working and one weekend off. At the same time, she took a part-time job with a Homecare company and worked there during the week.

[86] She went to Mr. Weil’s house, which was a townhouse on Woodlawn Road across from a golf course. It was a brown or beige colour of brick or siding or shingles. Most of the time, they were at her house, but she went to his house a few times. She does not distinctly remember taking K.L. to Mr. Weil’s townhouse, but she would not be surprised if she did.

[87] When asked if K.L. was alone with Mr. Weil, she testified that Mr. Weil was a “caregiver” for the children. He was part of her life. She was confident that he was alone with the children during this time. She does not distinctly remember putting him in charge of the children.

[88] She became aware that Mr. Weil had a criminal record at the beginning of her relationship with him. He told her that he had a criminal record. She initially thought it was for assault charges. She found out that his record was related to children during her relationship. She does not remember the details of what she found out.

[89] She knew that he had a criminal record and that he should not be around her children; she knew this during the relationship.

[90] At the time, it did not concern her. She felt he was great with her children and great with her. She ended her relationship with him in August or September of 2008. She does not remember exactly the last time she saw him.

[91] Even though the relationship was rocky and abusive, she cared for him very much. She would not be surprised if she called him after the relationship was over. She has no memory of telling the children that her relationship with Mr. Weil was over.

[92] She testified that she would not have told the children that Mr. Weil was not supposed to be around them. She thought that they liked him.

[93] More recently, she learned details about Mr. Weil’s criminal record. She saw the record from the Agency when defence counsel brought the third-party records Application. She learned from that record that Mr. Weil’s criminal record involved a girl touching his penis and that he took a picture of her doing that.

[94] S.A. also learned that she knew more details of Mr. Weil’s criminal record in 2007 than she remembered. The first time she knew this was when she read the Agency’s record in the defence Application. She did not remember that she knew any of those details back when she was dating Mr. Weil.

[95] She does not recall telling K.L. about Mr. Weil’s criminal record. She would not have told her five-year-old those details.

[96] After she read the Agency’s record from the defence Application, she did not talk to K.L. about what she had learned. She has never talked to K.L. about the details of what Mr. Weil did to her.

[97] She does not recall Mr. Weil taking any intimate pictures of her when she was in lingerie. She does not think that would have happened.

[98] In the last ten years and prior to the disclosure in 2016, she never heard K.L. speak of Mr. Weil. She did not speak of Mr. Weil to K.L. She stated, “not that I recall, I wouldn’t”.

[99] The only detail that she knows about the basis for Mr. Weil’s criminal conviction is what she recently read from the Agency’s record. She remembers from that time that she knew Mr. Weil was not supposed to be around children and that he had a criminal record.

S.A. Cross-Examination

[100] She testified that when she moved to Rockwood with the children, their father saw the children a couple of times a week and every other weekend, except for when they did not want to go with him. When she first moved to Rockwood, she was not going to school or to work.

[101] She could have started her relationship with Mr. Weil before she moved to Rockwood. She started her relationship with him at the beginning of 2007.

[102] She does not remember what Mr. Weil did for work, then or now. She does not remember what his work schedule was. She knew he worked in some capacity, but she does not know any details.

[103] With respect to what Mr. Weil told her about his criminal record, she does not distinctly remember when he told her or what he told her. Near the beginning of their relationship, he told her that he had a criminal record. She recalls that he said it was related to an assault. She does not recall that he just got out of jail or that he was on probation. She knew he was not supposed to be around children and he could have said it was related to the probation.

[104] With respect to the telephone calls she had with the Agency on April 25 and 27, 2007, she does not remember that she knew about Mr. Weil being convicted of sexual abuse of children. She does not dispute what the record says, but she does not remember at this time that she knew that information. She remembers knowing that he was not supposed to be around children, but she did not know it was part of a probation order.

[105] She testified that her mental state at the time was very compromised. She was on anti-depressants and anti-anxiety medications. She has vague memories of this time period. This is not the only time period when she had vague memories about events.

[106] She testified that Mr. Weil was around her children from day one of the relationship.

[107] She thinks he had a son. She cannot recall that he told her “I have a son and I have to make sure to obey the conditions to stay away from children”. She does not recall a conversation like that. She does not remember Mr. Weil saying, “I do not want to be around the children”.

[108] S.A. testified that she would find it hard to believe that he was not around her children. He was a part of their everyday life. He was supportive of her and the children. She would not have hesitated to go to the school, to the store or to work and leave the children with him. If she had to go somewhere, she did not hesitate.

[109] He taught her children how to skate, and he was alone with them when he did that.

[110] He was part of their lives. She was not always around when he was with the children.

[111] Before September 2007, she did have other caregivers to help. She had the children’s father, her parents and other family members. They all helped to look after K.L. and her son C.L.

[112] She does not distinctly remember K.L. going with her to Mr. Weil’s house. He was part of their life and she could have.

[113] She recalls that she was not working or in school until September 2007. She thinks she started part-time work at the Homecare Agency in October or November 2007. As of May 2008, she was working with Community Living and part-time for the Homecare Agency.

[114] When she started going to school, she does not remember specifically what the childcare plan or schedule was. She did not have any formal daycare. She agrees there were people in her life who helped with childcare.

[115] She disagreed that Mr. Weil told her right from the beginning that he did not want to be left alone with the children. She testified “he was part of the caregiver circle”.

[116] When asked about ensuring the safety of her children as her number one priority, she stated, “at the time, I did the best I could with the capacity I had”.

[117] She agreed that she knew from the conversation with the Agency that she should not leave her children alone with Mr. Weil. She testified that, “regardless of what I knew, I still trusted him”.

[118] S.A. testified, “clearly I made mistakes”, “clearly they were not safe”; Mr. Weil came into her life and took advantage of her situation. She agrees that in 2008, her separation from Mr. Weil was “upsetting and she was angry”; she felt “fearful” at the end. She did not want to be around Mr. Weil after the relationship ended. She wanted him to stay away from her and the children.

[119] She does not recall speaking to either of the children about why Mr. Weil was no longer in their lives. She probably made something up to explain it but does not remember what, if anything, she said. She does not remember telling K.L. that Mr. Weil had proposed to her.

[120] After she broke up with Mr. Weil, in the summer/fall of 2008, she does not recall her children asking about Mr. Weil and she does not recall talking to them about why he would not be around anymore. She finds it highly unlikely that she would have told the children anything that would have scared them.

[121] S.A. was asked about the defence Application for the Agency’s records. She discussed those documents with the lawyer. K.L. was not part of the discussions. They were her records, so K.L. did not participate.

[122] When she reads the record from the Agency, it does not spark any memory. She does not dispute that the conversations took place.

[123] She testified that she would not have talked to her children after these phone calls about such details. She has no memory of ever doing so.

Lindsey Ackroyd Examination-in-Chief

[124] In 2016, she was a teacher at a high school in Guelph. She taught grade nine health and physical education, and K.L. was one of her students.

[125] They had just finished a health unit the week before K.L. had come to talk to her. The unit was on personal safety/bullying/harassment and mental health. Sexual harassment was part of that unit. They would talk about what sexual harassment is and why people do not come forward. She offered resources for them on these issues.

[126] In October 2016, K.L disclosed something that had happened to her. At the time, she disclosed what she said Mr. Weil did to her, she looked scared and she looked sad. She seemed nervous about what she was going to say to her. K.L. told her before the disclosure that she needed to speak to her in private. She was crying and upset.

Lindsey Ackroyd Cross-Examination

[127] In cross-examination, she said that she had interacted with K.L. about a dozen times in various walks around the school. When K.L. asked to speak to her, she had a look on her face that indicated to her that she was nervous. She had not seen that look on her before.

Mr. Weil Examination-in-Chief

[128] Mr. Weil testified that in November 2016, he was living in Guelph on County Court Dr. He had moved there in the fall of 2006. He was called by Officer Detweiler from Guelph Police Services. Eventually, he and Officer Detweiler made contact.

[129] He testified he had no clue why he was going into the police department to speak to the detective. He testified that he was placed under arrest for breach of probation. When he was first arrested, the officer did not say anything to him about any sex charges. When the officer finally did say that the sex charges were historical in nature, the detective did not name the complainant. He testified that he was shocked and confused and baffled. He had no idea what the officer was talking about.

[130] He called a lawyer and about ten minutes later they went into an interview room. He did not know the name of the complainant at that time.

[131] The videotaped interview of Mr. Weil was played at trial. I will discuss that statement later in these reasons.

[132] Mr. Weil agreed that on March 3, 2006 he pled guilty to one count of sexual assault and one count of making child pornography. He admitted that he took four pictures of the complainant, M.P., in women’s underwear, and one of her holding his penis. The pictures were taken in January 2001. He was arrested for those offences in December 2005 or January 2006. He pleaded guilty to the charges and was sentenced to 13 months in jail. He served seven months and then was released on probation. He took programs at OCI dealing with sex offenders. He was released from custody in late October 2006. He was on probation for three years.

[133] He understood that he was subject to terms of probation to keep the peace and be of good behavior. He also could not own a firearm for ten years. He was also registered on the sex offender registry. Pursuant to s. 161 of the Code, he could not be in any parks, schools, playgrounds, or anywhere in the presence of a person under the age of 18, unless approved by probation and his psychiatrist or his designate.

[134] When he was released from jail, he went back to where he had worked before his incarceration: a sheet metal manufacturer. He was assistant lead-hand. In May 2008, the company was closed because of the recession. He finished work there in July 2008.

[135] He testified that his hours of work were between 6:30 and 7:00 a.m. until about 4:00 or 5:00 p.m., Monday to Friday. Sometimes his hours could be longer if they needed him.

[136] He met S.A. online in January 2007 on a group chat. They talked back and forth online before the meeting at Tim Hortons. He told her online that he had been in jail. He testified that she did not know the circumstances of his convictions in February. All she knew was that he had been in jail. He met her in person at a Tim Hortons in Acton for a coffee; he believes this was in the first week of January. He testified that she showed up at Tim Hortons with her children. They sat at their own table. He sat with S.A. and had coffee with her.

[137] He testified that a couple of hours after leaving Tim Hortons, S.A. messaged him to see if he wanted to come to her place for dinner and he said yes. They became intimate fairly quickly and were thereafter in a relationship.

[138] In mid-March 2007, he testified that he told S.A. what his criminal record was for. He told her that he had been convicted of sexual assault and child pornography. He told her what the pictures were about. He said she asked him “do you plan on doing that again?” and he said “no”. She knew he was on probation.

[139] He testified that he had been married before and that his marriage dissolved in 2005. He had a son who was born on January 3, 2001. He told S.A. about his son, even before they met in person. He was trying to arrange access with his son at an access center. He wanted to get back in his son’s life. He knew that if he breached any of his probation terms, this would jeopardize him seeing his son.

[140] He was stopped numerous times by the police. He testified that at least three times a week he was stopped by the police. They also attended at his house constantly. By 2012, the police might have dropped to stopping him two times per week.

[141] He testified that the first time he was with S.A.’s children was at Tim Hortons. He testified that in 2007 he was never alone with K.L. or C.L. After the Tim Hortons visit, S.A. spoke to his probation officer. He was never alone with the children after that. His visits were with S.A. on weekends when the children were not there. He worked during the week. Neither K.L. nor C.L. ever came to his house. S.A. came to his house three or four times when they were dating. She was not there with the children. His relationship with S.A. lasted about one and one-half years. It was over by the end of August or September of 2008.

[142] He testified that he was not a babysitter for K.L. or C.L. He made it clear to S.A. that by the terms of the probation order, he was not to be left alone with the children. It would have put his regaining visitation with his son in jeopardy. He testified that he made a point not to be left alone with the children.

[143] He testified that there was one time he was alone with K.L. and C.L. This was when S.A. was “cheating” on him with a friend. She took off and went to Tim Hortons to be with this man and he was left alone with the children. They were both sleeping. He knows she went to Tim Hortons because there was a message from a man saying that he was at the Tim Hortons waiting for her. Mr. Weil knew the children were in bed because she had put them there. He testified that he had no contact with K.L. and C.L. once S.A. put them into bed.

[144] He told S.A. that he was on probation. She spoke to his probation officer in March or April of 2007. He knows this because he was at S.A.’s house when the probation officer called.

[145] He testified that he left S.A. in July 2008 because she was having an affair with another man.

[146] Mr. Weil came to S.A.’s house and got his belongings to take to his parents’ house. He remembers K.L. asking him where he was going. He said he was going home. When she asked if they were going to see him again, he said he did not know. S.A. was there at the time of this conversation.

[147] He testified that he was closer to C.L. than to K.L. His relationship with K.L. was “hi, hello, like a friend”. He could relate to a boy better. Maybe he was replacing his son. He played Star Wars and guns with C.L.

[148] He did not do any of the things that K.L. testified about. He specifically denied that he dressed her in lingerie or showered with her. He likes his privacy, and after his experience in prison, he does not want people sharing his shower. He was never alone with K.L. in S.A.’s bedroom.

[149] He did not shower or wash K.L. He does not like to have soap on his hands. He did not do any of the things she says he did. There was no pornography, no semen, and no pictures.

[150] He did not take any pictures of S.A. wearing lingerie. He testified that he would not do that.

[151] He testified that he had a nipple piercing in 2007 and 2008, and a photo was filed as an exhibit showing this nipple piercing.

Mr. Weil Cross-Examination

[152] Mr. Weil said that S.A. took a picture of his son sitting on a bale of hay. He said he did talk to S.A.’s children about his son when they asked about him.

[153] His son had an old H.P. style digital camera. It came with a printer and it never worked.

[154] He agrees that he was on probation at the time he met S.A. He knew the terms of his probation at the time that he met her. He was concerned about the police and about being around children because of his probation.

[155] He did not interact with K.L. She did “girl stuff”. Most of his interaction with K.L. was when he was with S.A.; they would watch the children ride their bikes. At times he was in the home with S.A. and the children after S.A. had “cleared” it with his probation officer. It was in mid-March 2007 that S.A. spoke to his probation officer.

[156] He denies that he spent quite a bit of time with K.L. He never took the children skating. He agrees he does skate and he took M.P. skating. He denies that he taught K.L. and her brother C.L. how to skate or took them skating. He denies that he took them swimming.

[157] He cannot say whether it was important to S.A. that he had a relationship with her children. He knew that he was going to be in a relationship with S.A. He asked probation about seeing her children because of that. He knew it was important to get along with S.A.’s children.

[158] He agrees that he went for dinner at S.A.’s at least twice a month. He did not go weekly.

[159] He made deep fried potatoes at S.A.’s house. He does not recall cutting the potatoes in shapes of a K or a C. He did cut funny shapes with the potatoes.

[160] He denied that he saw the children in the morning after he stayed overnight.

[161] He was not alone with the children when S.A. was on the phone or when she did her laundry. He was never left alone with the children except for the one time when S.A. went off to see another man, and the children were in bed.

[162] He met S.A. through a chat group. It was in a private chat that he told her he had been in jail for assault. When he met her in mid-February 2007, he did not know that she had children.

[163] They decided to meet at Tim Hortons and she brought her two children. They sat at a different table than the children; they were beside each other. S.A.’s children were two and four at the time. They had about a half-hour conversation and the children were at the other table the whole time. The children did not interrupt them. S.A. did not speak to them.

[164] He agreed that he did not say anything to S.A. about being concerned because she had children. He knew he was putting his access to his son at risk by being near her children. The conversation at Tim Hortons went well and they seemed compatible. He went to the parking lot with S.A. and her children. He hugged S.A. At that time, he did not speak to her children. He said “good-bye” generally to the group; like “bye to a room”. He stated he had a very good memory of this.

[165] He was invited later that day to dinner at S.A.’s house and he went. He knows the children were with her at Tim Hortons. He recalls S.A. saying that the children would not be at dinner in a text message to him. He remembers the children were not at dinner. He spent the night there with S.A.

[166] Mr. Weil testified that he told S.A. within a week that he was not to be around children and that this was a term of his probation. He did not consider S.A. to be a girlfriend at the time. He was developing feelings for her. He agreed that, at one point, he loved her.

[167] By the end of February, he testified that he told her why he was in jail; he told her that he was in jail for a sexual assault and for child pornography. Mr. Weil told S.A. that he took pictures. Later, he told her he took a picture of a girl touching his penis.

[168] Mr. Weil was referred to his statement to the police. He was asked by the officer if he told S.A. any details and his answer at that time, “no, I didn’t tell her”.

[169] Mr. Weil testified that he did tell S.A. that a photograph was taken. In the police statement when he said he did not tell S.A. any details about the charges, he meant he did not say the girl’s, age, or the month and year of the offences. He testified that S.A. knew about the photograph of a young girl. She did not know the other details. She did not know how the child was posed.

[170] Mr. Weil testified that he told S.A. that the child was wearing a woman’s bra and underwear. He did not mention that she was wearing a corset. He told her that she was wearing a lacy bra and underwear. He did not tell Detective Detweiler that he told S.A. those details. He was “not going to help him prosecute him”.

[171] The underwear on M.P. belonged to his wife. He did not use elastics and hairpins to hold up the underwear. He used the hooks that were on the bra.

[172] He has an “OCD thing”. He does not like soap on his hands. He would not have put soap on his hands to wash K.L. He uses a loofa to put soap on himself. He immediately puts his hands under the water because he does not like the feel of soap.

[173] At the time that Detective Detweiler interviewed him, he was “more confused and shocked” than he was emotional. He testified that he does not like the police. He believes that the Guelph police harassed him by constantly checking on him; he was on the sex offenders’ list. He did check-ins with the Guelph police once a year, but they came to his home more regularly.

[174] He testified that S.A. spoke to his probation officer and to the Agency. After she spoke to them, he believed that it was okay for him to be with S.A. and her children.

[175] He agrees that he was at one family function where S.A.’s family attended. There were children at the function, and he agrees he did not leave. He testified that S.A. had spoken to his probation officer and he said, after that, he believed he was “cleared” to be around her children. He believed that as long as he was with S.A., he could go anywhere there were other children. He also said that he did not know that other children would be at this family function. He agrees that he did not ask if other children were going to be there. He repeated that as long as S.A. was “cleared”, he was okay to be around children with her. He agreed that he was very careful to understand the terms of his probation.

[176] Mr. Weil testified that he knew S.A. spoke to his probation officer in March of 2007. He does not know whether she spoke to the Agency He did not understand that he needed clearance from the Agency to be with S.A.’s children.

[177] Mr. Weil disagreed that after S.A. spoke to the Agency, he was with S.A. and her children fairly regularly.

[178] He agrees that he was in a relationship with S.A., but his schedule did not allow him to have regular time with S.A. and the children. He had cats to feed. The cats had to be fed three times per day. During this period of time when he “loved S.A.,” he also wanted “me time”.

[179] S.A.’s children were very rarely at the house when he was there. They were either with their father or with S.A.’s parents. He did not direct the children with respect to anything to do with their lives. He maintained that he was not a parent to the children. He never asked them to do anything. He was not stern with the children on any occasion. He disagreed that he would use his stern voice to convey something important to a child.

[180] Mr. Weil agreed that he had fairly free access to S.A.’s home. He agreed that she left the door unlocked, and he could enter the house. He repeated that most of the time he was there, the children were not in the home.

[181] Mr. Weil testified that he did not know that the Agency had spoken to S.A. in the spring of 2007, until this proceeding.

[182] Since early August/September 2008 he has had no communication with S.A. She dropped out of his life. He has not seen K.L. since August/September 2008.

[183] When he was asked whether he was kind to K.L. and C.L. he answered that “he is kind to most people he is around”. He testified that he spoke to them like a human being at their age level. He spoke at the table when they did the “ritual” of going around the dinner table and saying how their day had been. When he was there, he agreed he would participate in this ritual. If one of the children had a bad day, he agreed he would be sympathetic. He added that, “most people would be sympathetic”. He testified that he was taught empathy at OCI.

[184] He agreed that he went to Marineland and saw whales with the children and S.A. He agreed that Marineland was an amusement park which was mentioned in his s. 161 order. He stated that he was “cleared” to go to parks by probation. As long as he went to Marineland with S.A., this was acceptable, and he was not in breach of his s. 161 order.

[185] He agreed that he went to the Rockwood Conservation Park with S.A. and the children and that they went canoeing.

[186] After the relationship ended in September 2008, he testified that he asked S.A. to bring his son’s things to him that were at her house. He had taken things to S.A.’s so the children could play with them. He did not play with those toys with the children.

[187] Mr. Weil testified that he did not know where the children were when S.A. went back to work. He testified that her family looked after her childcare. He would not look after the children when she was at work or to give her any “alone” time.

[188] Mr. Weil denied that he showered with K.L. or used a loofa to wash her. He did not see K.L. naked in her house after a bath. Mr. Weil denied all the allegations that K.L. said he performed on her.

[189] He “assumes” that S.A. had a white and pink lacy bra. He did not see her in those because when they undressed the lights were out. He did see the lingerie when S.A. did the laundry. He does not recall exactly what her lingerie was like, but it was in the middle between sexy and conservative. He never dressed K.L. in lingerie. He did not show her how to pose and he did not take any pictures of her in lingerie.

[190] Mr. Weil recalls buying both the children a chocolate bar on one occasion. K.L. was not with him. He does not recall the day being hot. It was not warm or hot. It was “relatively mild”. He does not recall any chocolate bars melting.

[191] He does not recall an occasion when he was in S.A.’s room with K.L. and C.L. knocked on the door.

[192] He never had K.L. in his home. There was no sexual abuse that happened there. S.A. never brought the children to his house when she dropped by if she was on an errand.

Authorities

1. Similar Fact Evidence

[193] The admissibility and relevance of similar fact evidence is well articulated in appellate jurisprudence. The application of those principles to the facts in a particular case is the challenge.

[194] My review of the jurisprudence, and subsequent analysis focus on the issue of collusion, both conscious and unconscious. Defence counsel concedes that if I do not find there was collusion or tainting of K.L.’s evidence, the evidence of the admitted facts, forming the foundation for Mr. Weil’s guilty plea related to M.P., otherwise meets the test for the admission of similar fact evidence. I will discuss why I agree with that concession below.

[195] In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, Binnie J. set out a non-exhaustive list of factors that a trial judge could use to consider the “cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn”. These were listed at para. 82 of Handy:

82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts;

(2) extent to which the other acts are similar in detail to the charged conduct;

(3) number of occurrences of the similar acts;

(4) circumstances surrounding or relating to the similar acts;

(5) any distinctive feature(s) unifying the incidents;

(6) intervening events;

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

[Citations omitted].

[196] In her application, Crown counsel prepared a chart setting out how the evidence she seeks to admit meets the above factors. I will refer to that chart below, as, notwithstanding the concession of defence, I must still find that the evidence meets the test for admission.

[197] As similar fact evidence is presumptively inadmissible, the Crown must establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice.

[198] The probative value of the similar fact evidence in this case was enunciated by the Crown as follows:

1. To assist in determining whether the actus reus of the offences occurred.

2. To assist in assessing the credibility of K.L. against the denial of wrongdoing by the accused.

3. To rebut the defences advanced in this case, namely fabrication and collusion.

4. To contribute to the probative value being the distinctiveness and particularity, of what K.L. says Mr. Weil did to her.

[199] The basis for the admissibility of similar fact evidence is destroyed if collusion is present. If the issue of collusion has an air of reality on the evidence, then the Crown must prove, on a balance of probabilities that there was no collusion with respect to the allegations of the complainant.

[200] Although the jurisprudence speaks of collusion between complainants, defence counsel does not suggest that K.L. and M.P., the complainant in the similar fact evidence, colluded or discussed Mr. Weil and what he did to them, or even that they knew each other. The defence submission is that K.L.’s mother, consciously or unconsciously, “tainted” K.L.’s allegations against Mr. Weil. Defence counsel further submits that K.L. read or became aware of the details of Mr. Weil previously taking photos of M.P. after reading or hearing about the s. 278 Application and after the production of the Agency’s record from 2007.

[201] As Binnie, J. wrote in Handy:

106 In my view, the trial judge cannot assess “the objective improbability of coincidence” without addressing the issue of whether the apparent “coincidence” is in fact the product of collusion. Admissibility is a question of law for the judge alone. I agree with the respondent that “[i]t is only through an accurate and full preliminary assessment of probative value that prejudice can be kept within manageable bounds”.

110 I would not agree, however, that suspected collusion would play less strongly against otherwise powerful evidence than in a borderline case. In that sense, suspected collusion is more than just another “factor”. Cogency is derived from the improbability of coincidence. Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends.

113 Here it was not sufficient for the Crown simply to proffer dicey evidence that if believed would have probative value. It was not incumbent on the defence to prove collusion. It was a condition precedent to admissibility that the probative value of the proffered evidence outweigh its prejudicial effect and the onus was on the Crown to satisfy that condition. The trial judge erred in law in deferring the whole issue of collusion to the jury.

[202] In Handy, the issue was whether the complainant consented to the sexual acts of the accused. There is a great deal more potential for misuse of similar fact evidence, because of the twin problems of moral and reasoning prejudice, when it is admitted to assist on the issue of consent.

[203] The prejudicial effect of similar fact evidence to assist in determining the actus reus of the offence is less dangerous, particularly in a judge alone trial. In R. v. C.K., 2015 ONCA 747, Pardu J.A. addressed this use of the similar fact evidence at para. 33:

[33] The trial judge identified the issue in question as the actus reus of the alleged offences in light of the appellant’s blanket denial that there was ever any inappropriate activity between him and his grandsons. As long as its probative value outweighs its prejudicial impact, similar fact evidence may be admitted for the purpose of proving the actus reus of the offence charged and to assess the credibility of a blanket denial: R. v. Shearing.

[204] In R. v. Finelli, [2008] O.J. No. 2242 (S.C.), Spies, J. set out a succinct summary of the probative value of similar fact evidence that is applicable in my case:

28 The probative value of the similar fact evidence tendered in this case depends upon two inferences from the evidence; one, that Mr. Finelli has this specific propensity to act in a particular way and, two, that he actually acted in conformity with this propensity at the time of the assault alleged by the complainant.

29 While propensity underlies the probative value of true similar fact evidence, the breaking point between general propensity and specific propensity is most easily understood as depending upon the objective improbability of coincidence. In other words, the closer the circumstances of the similar acts resemble the circumstances under which the charged act was committed, the less likely the similarity can be explained by coincidence. Put another way, as a matter of common sense, is it against all probability that, in light of what the Crown can show that Mr. Finelli did to the three similar fact witnesses on other occasions, it is a mere coincidence that the complainant is not telling the truth when she describes what she alleges Mr. Finelli did to her on this occasion? [Citations omitted].

[205] However, even used for this probative value, collusion or tainting must be assessed in the probative value versus prejudicial effect weighing process.

[206] The issue of collusion, with respect to the allegations of a complainant, has been addressed in other cases. My assessment of collusion, or tainting of K.L.’s allegations against Mr. Weil, affects the admissibility of this evidence in the first instance as probative evidence in the Crown’s case. If this evidence is found to be admissible, the issue of possible collusion also affects the weight to be given to the evidence in deciding if the Crown has satisfied me beyond a reasonable doubt of Mr. Weil’s guilt of the offences charged. Is the evidence less reliable because of the presence of possible collusion?

[207] In R. v. Dorsey, 2012 ONCA 185, the court wrote:

[26] Where the similar fact test is met, that is, the probative value of the evidence outweighs its legally prejudicial effect, but there is also evidence of actual collusion among the complainants whose testimony constitutes the similar fact evidence, the Crown must show, on a balance of probabilities, that the evidence of similar fact is not tainted by collusion. If the Crown is unable to satisfy this onus, and the judge finds actual collusion among complainants, he must exercise his gatekeeper function and deny the similar fact application. However, where the evidence shows only the opportunity for collusion or collaboration possibly tainting the evidence, then the matter should be left to the jury. The jury must consider the effect of the possible collusion when deciding the weight to be given to the similar fact evidence. At para. 111 of Handy (above), Binnie J. says, “if the evidence [of collusion] amounts to no more than opportunity, it will usually be left to the jury.”

[208] The issue of “tainting” a witness’ evidence and perception of events was discussed in, R. v. F.(J). (2003), 2003 CanLII 52166 (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77, Feldman J.A. wrote:

[77] The trial judge’s finding that B. H. was sincere, a “straight shooter”, and not influenced by E. T. and the others, fails to take into account that collusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.

[209] In the recent decision of R. v. Wilkinson, 2017 ONCA 756, the court wrote about the issue of unconscious collusion. The air of reality to the existence of any kind of collusion must be considered at the admissibility stage. The Crown at this stage must disprove the possibility of collusion, conscious or unconscious, on a balance of probabilities. If the evidence amounts to no more than “opportunity”, the similar fact evidence should be admitted, and the weight to be given to it determined by the trier of fact.

2. Motive to Lie or Otherwise Fabricate/No Animus

[210] The Court of Appeal recently reaffirmed an important principle when considering the issue of motive, in this case the motive of K.L. to fabricate the allegations of sexual misconduct. The Crown submits that there is no motive for K.L. to concoct these allegations.

[211] In R. v. Bartholomew, 2019 ONCA 377, Trotter J.A. for the court at parass 19, 22, and 25, wrote:

19 I agree with the appellant that the trial judge erred by transforming the absence of evidence of a motive to fabricate into a proven lack of motive, contrary to this court's decision in R. v. L. (L.).

22 However, problems occur when the evidence is unclear — where there is no apparent motive to fabricate, but the evidence falls short of actually proving absence of motive. In these circumstances, it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all: see R. v. V. (J.).

25 More importantly, evidence of a good relationship between the complainant and the appellant was not capable of proving that the complainant had no motive to fabricate; it could do no more than support the conclusion of an absence of evidence of a proved motive: This state of affairs was not capable of enhancing the complainant's credibility, as the trial judge did. At best, it was a neutral factor.

[Citations omitted].

[212] The court must always clearly identify the probative value of the evidence before deciding on its admissibility at a trial. The Crown does not have to prove a motive for the commission of a crime, but neither does the defence have to prove a complainant had a motive to lie.

[213] As set out above, absence of proven motive to lie is different than a proven absence of motive to lie.

[214] If there is no evidence that affirmatively could support a finding that K.L. had no motive to lie about the allegations, or indeed had no animus toward Mr. Weil, then the issue of motive to lie is not a live issue in assessing the credibility of the complainant.

3. Edgar Evidence

[215] On consent of the Crown, as part of Mr. Weil’s case, the videotaped statement made at the time of his arrest, when he was first confronted with the allegations of sexual misconduct, was played.

[216] The evidence was admitted for the purposes set out in Edgar, and R. v. Liard, 2015 ONCA 414, namely:

1. As evidence of the reaction of Mr. Weil to the accusation of sexual misconduct;

2. As proof of consistency with his in-court testimony.

[217] This evidence has been held to be relevant to the issue of the credibility of an accused. It has been held to be circumstantial evidence bearing on the guilt or innocence of an accused because it can demonstrate his immediate reaction to an accusation of a crime, possibly more reliably or in a more probative manner than later in-court testimony.

[218] Both counsel referred to the videotaped statement and Mr. Weil’s demeanour while giving the statement. Counsel each asked me to draw different inferences from this evidence.

[219] I will discuss the weight and what conclusions I drew from this evidence below.

4. Evidence of Children/Adult Complainant Testifying About Events When She was a Child

[220] Courts have come a long way with respect to assessing how the evidence of children is given and assessed.

[221] In R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 23, 24, and 26, McLachlin, J. wrote:

23 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. … The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.

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

[222] This principle, as to the assessment of the credibility of an adult testifying as to what she says happened to her when she was younger, was recently reaffirmed in R. v. C.D.K., 2016 ONCA 66. The Court of Appeal reversed the conviction based on the language in the charge on this issue. On further appeal, the Supreme Court of Canada allowed the Crown appeal and restored the conviction, adopting Benotto, J.A.’s dissenting reasons. The majority and the dissent, at the Court of Appeal, did not disagree on the principle of law at play; the disagreement was as to whether the trial judge’s “impugned” passage, when read in context, resulted in an error of law in her instruction to the jury.

[223] With respect to the issue of adults looking back to what they say occurred to them when they were younger, the majority in R. v. C.D.K., relied on the following passage in R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536:

11 Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred. [Citations omitted].

5. Delayed Disclosure/Incremental Disclosure

[224] The relevance of the impact of delay in disclosure of sexual abuse, which also includes the issue of incremental disclosure of sexual abuse allegations, has, since at least the year 2000, been held not to need an expert to explain to a trier of fact. The majority in the often quoted Supreme Court of Canada decision of R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, wrote:

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

6. The Presumption of Innocence and Burden of Proof

[225] The presumption of innocence is the cornerstone of our criminal justice system. In the other corner is the principle that the onus is on the Crown to prove the charges beyond a reasonable doubt.

[226] As trial judges tell juries, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or one based on sympathy, for, or prejudice against, anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence. Likely or probable guilt is not enough.

[227] As trial judges also tell juries, it is nearly impossible to prove something to an absolute certainty, a standard of proof that is impossibly high. If, after considering all of the evidence, I am sure that Mr. Weil committed an offence, then I am satisfied of his guilt beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that Mr. Weil committed an offence, then I must find him not guilty, as I would not be satisfied of his guilt beyond a reasonable doubt.

[228] The case of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, applies to the credibility assessment of witnesses, in particular, as here where Mr. Weil testified.

[229] In determining whether the Crown has proven beyond a reasonable doubt that Mr. Weil committed the offences he is charged with, I must apply the principles in W. (D.). If I believe Mr. Weil that he did not perform any sexual misconduct on K.L., then I must find him not guilty. Even if I do not believe his evidence about the sexual misconduct, but his evidence leaves me in a state of reasonable doubt as to his guilt, then I must find him not guilty. Even if Mr. Weil’s evidence does not leave me with a reasonable doubt regarding his guilt, I may only find him guilty of the offences charged if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt that he committed the offences.

[230] There is a further line of cases which deal with the rejection of an accused outright denial of any wrongdoing.

[231] In R. v. D. (J.J.R.), (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A), at para. 53, Doherty J.A. wrote:

53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[232] This principle of a “considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of accused’s evidence…”, has been followed in several subsequent trial decisions. Application of this principle has also been the subject of appellate review on several occasions.

[233] A subsequent consideration of this principle was undertaken by Laskin J.A. in R. v. R.D., 2016 ONCA 574, at paras. 18 and 20:

18 The sufficiency point: the bare rejection of an accused's evidence will meet the two important purposes for giving sufficient reasons — explaining why the accused was convicted, and permitting effective appellate review — provided that the bare rejection is based on a "considered and reasoned acceptance" of a complainant's evidence. Implicitly, the bare acceptance of a complainant's evidence and the bare denial of an accused's evidence ("I accept the complainant's evidence; therefore I reject the accused's evidence") are unlikely to amount to sufficient reasons. A trial judge who relies on the formulation in D. (J.J.R.) should at least give grounds for accepting a complainant's evidence.

20 The burden of proof point: a trial judge who says only "I reject the accused's evidence because I accept the complainant's evidence" risks being held by an appellate court to have chosen which of the two parties to believe and failed to determine whether, on all the evidence, the accused's guilt had been proved beyond a reasonable doubt. That risk is what Cronk J.A. cautioned about in M. (O.) But, as M. (O.) also shows, a trial judge can still reject an accused's evidence because either the complainant's evidence or other evidence establishes the accused's guilt beyond a reasonable doubt. Thus, D. (J.J.R.) and M. (O.) are entirely consistent. [Citations omitted].

7. Reliability and Credibility of Witnesses

[234] There is probably no criminal trial which requires the assessment of the credibility and reliability of witnesses’ testimony more than in a sexual assault case. It is incorrect to simply label such cases as a “he said/she said”, situation. Of course the analysis undertaken by the trial judge is not a credibility contest between the two main witnesses, that is, the complainant and the accused. The outcome of this case does not depend on my decision as to who is more likely to be telling the truth. This case, like all criminal trials, depends on whether, after considering all of the evidence at the trial, the Crown has proven the guilt of Mr. Weil beyond a reasonable doubt.

[235] That must involve an assessment of the credibility and reliability of the witnesses who testified at this trial. What does that mean?

[236] The distinction between “credibility” and “reliability” has been discussed in evidence texts and jurisprudence for decades. The following definition of those two determinations was set out clearly by Blair, J.A. in R. v. Sanichar, 2012 ONCA 117:

36 Here, a regular theme in the trial judge's acceptance of the complainant's testimony was that she was "sincere," she was "honest," she was "doing her best to be truthful." But he does not appear to have focussed on whether her testimony was reliable or accurate. David M. Paciocco and Lee Stuesser describe the distinction between "credibility" and "reliability" in this context as follows in their text, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Law, 2010), at p. 29:

"Credibility" is often used to describe the honesty of a witness. "Reliability" is frequently used to describe the other factors that can influence the accuracy of testimony, such as the ability of the witness to make the relevant observation, to recall what was observed, and to communicate those observations accurately.

[237] The court in Sanichar, stressed that it was crucial for a trial judge to assess both these attributes of a witness’ testimony. As we tell juries, an otherwise credible witness may give unreliable testimony for one reason or another. Of course, the application of those definitions to the testimony I heard at trial is at the heart of assessing whether I can rely on that testimony.

[238] Appeal courts have provided guidance on what can and cannot enhance a witness’ credibility and/or reliability. I will set out a few examples here.

[239] On the issue of lack of embellishment, when a complainant testifies, the court in R. v. Kiss, 2018 ONCA 184, wrote:

52 The trial judge would have erred if he treated the absence of embellishment as adding to the credibility of K.S.'s testimony. It is wrong to reason that because an allegation could have been worse, it is more likely to be true. While identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility. This is because both truthful and dishonest accounts can appear to be without exaggeration or embellishment.

53 On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness' evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [Citations omitted].

[240] Importantly, trial judges must not ignore “troubling aspects” of a witness’ evidence; they must address them and make a finding about that evidence (see R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291).

[241] A trial judge must consider the following, among other questions when assessing a witnesses’ testimony.

1. Consistency of the witnesses’ evidence:

• Internally;

• Between examination-in-chief and cross-examination;

• With other witnesses/documentary or physical evidence;

• Is there a prior inconsistent statement;

• Is there an explanation for any inconsistency?

2. Is the witnesses’ evidence inherently plausible?

3. Did the witness answer the questions asked or was the witness evasive, unresponsive, or argumentative?

[242] Lastly, on this issue, a recent Court of Appeal for Ontario decision brings home the fatal error in reasoning a trial judge makes when that judge bases findings of credibility on assumptions that are unsupported by the evidence. The court in R. v. Cepic, 2019 ONCA 541, set out the difference between that chain of reasoning and when a trial judge draws conclusions based on the evidence.

[243] In Cepic, at paras. 22 and 23, Benotto J.A. sets out this difference as follows:

[22] Likewise, in G.H., the trial judge considered evidence from the appellant about how he and the complainant behaved and measured that evidence against common sense and human behaviour. The trial judge did not reach outside the evidence to make credibility findings based on generalizations about the sexual behaviour of men and women. Finally, in F.B.P., the trial judge’s inference that it would be implausible for the complainant to have had sex with the appellant on a public balcony was not central to the rejection of the appellant’s evidence but in any event was based on the evidence.

[23] Here, the trial judge’s repeated use of words like “implausible” and “nonsensical” to characterize various aspects of the appellant’s testimony is untethered to an evidentiary base. It reflects a conclusion based almost entirely on an assumption about what a young woman would do in this context. And the context was significant: a women’s only party in a highly sexualized environment involving alcohol and male dancers. [Citations omitted].

[244] Impermissible stereotyping about how witnesses should behave, or give evidence, with no evidentiary foundation, is always a problem. Making findings of credibility and reliability on such stereotypes in most cases is a reversible error.

Analysis and Decision

[245] I have set out the legal principles driving my analysis and decision. I will set out my decision on the Similar Fact Application of the Crown first.

Similar Fact Application

[246] As I have set out above, the thrust of the defence argument against the Crown’s application is that there was collusion, either conscious or unconscious, which tainted K.L.’s testimony such that I should exercise my discretion to exclude the evidence from my decision-making on the substantive charges. The defence submits that the admission of this evidence would be more prejudicial to a fair trial than probative of the search for the truth in this case.

[247] In her application, Crown counsel prepared a chart which sets out the connecting factors that link the similar fact evidence related to M.P. to the facts alleged by K.L. I have amended that chart slightly below, but largely kept it as drafted.

[248] As I set out earlier, defence counsel concedes that if I do not find any collusion, or tainting of any of the allegations made by K.L., then the Crown’s application must succeed.

[249] The connecting factors I accept, based on the evidence at trial, are as follows:

Factor

K.L.

M.P.

Proximity in Time

2007-2008

2001

Details

• Intimate relationship with child’s mother

• Made to touch his genitals

• Close family friend of child’s mother

• Made to touch his genitals

Surrounding Details

• Dressed child in adult female lingerie

• Took photos

• Dressed child in adult female lingerie

• Took photos

Distinctive Features

• Prepubescent female child (5-7)

• Boyfriend to mother

• Child left in Respondent’s care

• Lingerie

• Made child pornography

• Prepubescent female child (7-8)

• ‘Father-figure’ relationship (Godfather, family friend)

• Child left in Respondent’s care

• Lingerie

• Made and kept child pornography

[250] I agree with defence counsel that, absent collusion or tainting, the evidence is admissible as similar fact evidence. The improbability that the degree of similarity of the events can be explained by coincidence permits the admission of the similar fact evidence related to M.P.

[251] The real issue concerning both admissibility and the weight to be given this evidence is whether there was collusion or tainting of K.L.’s testimony as to what she says Mr. Weil did to her. Specifically, the defence submits that the evidence of K.L. that Mr. Weil took pictures of her in lingerie was only created after the defence’s s. 278 Application for production of the Agency’s records from 2007 related to S.A. That record was produced to the defence on consent. It was filed at the trial on consent as a business record and for the truth of what was recorded by the Agency when the staff contacted S.A. following a phone call from Mr. Weil’s probation officer. In other words, counsel and S.A. agree that what is in the record accurately sets out what transpired between the Agency and S.A..

[252] The defence submits the following:

• There was no actual contact between K.L. and M.P.

• There is less concern about moral prejudice because this is a judge alone trial.

• The evidence of the prior conviction and the terms of probation support Mr. Weil’s version of events. Mr. Weil would not have done what he is alleged to have done because of the terms of his probation order and the s. 161 order against him.

• The collusion was unintentional; the defence does not have to provide evidence of planning or intention to deceive or concoct the allegations.

• There was the “potential” for collusion that went beyond mere opportunity.

• From the evidence, the court can infer K.L.’s memories are “coloured”.

• The evidence shows that S.A. knew as of April 2007 that Mr. Weil took a picture of a child touching his penis.

• I should believe Mr. Weil that he told S.A. in 2007 about the details of his prior conviction, including taking pictures of M.P. dressed in women’s lingerie. I should believe this because he gave a cogent reason why he told her all the details. He knew she was going to talk to his probation officer, who would tell S.A. everything anyway, so he thought he had better tell her first.

• It makes no sense that S.A. would be in a relationship with a convicted sex offender and not talk to her children about it. Counsel said, “she would protect her children”.

• It is incredible evidence that S.A. would leave her children with Mr. Weil unsupervised when she knew he was a convicted child sexual abuser. If she did leave them with Mr. Weil, she would check in with her children and make sure nothing improper was happening.

• S.A. lied to the Agency when she said her children had not met with Mr. Weil at the time she spoke to the Agency. For this and other reasons, she is an incredible and unreliable witness.

• K.L.’s memory was affected/coloured/tainted by what she observed:

i. She saw naked adults on T.V. and said it was pornography, but she had no memory of anything else she saw that made her think it was pornography.

ii. Her allegations and disclosure that Mr. Weil was photographing her came after the s. 278 Application was brought. It defies logic that the picture-taking disclosure came up without K.L. being told something from the s. 278 Application.

iii. What “prompted” her memory about being photographed? It defies logic that this was just a coincidence.

iv. She told police that Mr. Weil took pictures one or two times.

v. K.L. said Mr. Weil would show her pictures of her mom and asked her to pose like her, but that was not true. Mr. Weil said that he did not take any pictures of S.A. S.A. said that she did not think that would have happened.

• It was “very likely” that S.A. told K.L. details about Mr. Weil’s past.

• S.A. said that she was afraid at the end of the relationship and that Mr. Weil had been abusive.

• I should infer that she would not have said to her children, “he’s a nice guy and it didn’t work out”. It is more likely she said that he was a “bad guy”.

• K.L. was not afraid of Mr. Weil when he was going out with her mother. This changed in grade three when she said she did not disclose what happened to her because she was afraid Mr. Weil might come after her and her family.

• The Crown cannot disprove collusion or tainting.

• I should find that K.L. “internalized” S.A.’s anger and fear of Mr. Weil and his past.

• S.A. cannot remember very much from 2007, so I cannot rule out the possibility that she caused K.L. to be fearful of Mr. Weil and to create these memories.

[253] The Crown submits the following evidence to support its submission that K.L.’s allegations are not tainted and concocted:

• She knew as of this court case that Mr. Weil had a criminal record. She knew from the court documents that he was charged with a breach of “parole”. She therefore concluded he had a criminal record. From the court documents, she “guessed” his criminal record was for drugs.

• She never heard that Mr. Weil had abused a child. When the defence lawyer asked her about this issue, it was the first time she had heard about Mr. Weil’s sexual assault of another child.

• She did not know M.P.

• She never spoke to her mother about the details of abuse. She felt “awkward” talking to her mother about the allegations. She also was told by everyone not to talk about the allegations with her mother. She only told her teacher, counsellor and the police generally what had happened.

• Her first disclosure to the police, after she disclosed to her teacher, was before she spoke to her mother at all.

• Prior to the disclosure to her teacher, she had not spoken to her mother about Mr. Weil in a very long time.

• She agreed that she did not disclose the allegation that Mr. Weil photographed her while dressed in adult lingerie until after the third-party application. K.L. testified that the new disclosure by her was not connected to the third-party application.

• K.L. remembered after the preliminary inquiry that she needed to say something more about the allegations. She told her mom that but told her no details. To this day her mom does not know details of her allegations.

• I should believe K.L. about not speaking to her mother about any of the allegations that she made about Mr. Weil.

• K.L.’s mother confirmed that, to this day, she does not know any details of what is alleged to have happened to K.L.

• At most, the Agency’s record is some evidence that, in 2007, S.A. knew that Mr. Weil had a girl touch his penis and that he took her picture doing so.

• S.A. has no present memory that she knew that detail in 2007. She did not know she was aware of that fact until she read the record.

• Her present memory is that, in 2007, she knew that (1) Mr. Weil was on probation and (2) he was not to be around children.

• The Crown submits that these memories are not sufficient for the court to infer that S.A. concocted a “memory” of Mr. Weil taking a photo of a child in adult lingerie to tell K.L. so that K.L. could then tell the police.

• S.A. said she would not have told a six-year-old child any of the details of Mr. Weil’s sexual misconduct that she learned from the Agency back in 2007.

• Mr. Weil had been out of S.A.’s and K.L.’s lives for 10 years at the time of the latest disclosure. There was absolutely no reason for them to be speaking about him or what he did to K.L.

• It makes sense that S.A. would not have told K.L. back when the parties split up that Mr. Weil was a “bad man”; she would not want to scare a six-year-old.

• It is coincidental that K.L. said she had been photographed in lingerie after the preliminary inquiry and the third-party application.

• These were not new memories of being dressed in lingerie. She had reported and testified about that misconduct in her first interview with the police and at the preliminary inquiry.

• Being dressed in lingerie, photographed or not, is not anywhere in the Agency’s record.

• Mr. Weil never said in his police statement that he told S.A. he dressed M.P. in lingerie.

• His evidence changed at trial when he said he told S.A. about dressing M.P. in lingerie. This is self-serving evidence and I should reject it. It makes no sense that he would tell S.A. that level of detail at the time.

• He told the police that he did not provide details of his conviction to S.A.

• There is simply no evidence that K.L. knew anything about Mr. Weil’s prior criminal acts. Her testimony is not tainted in any way.

• The similar fact evidence corroborates K.L.’s evidence as to what she says Mr. Weil did to her.

Decision on Similar Fact Application

[254] As set out in the chart above, the allegations of sexual misconduct are very similar. In particular, the dressing of a prepubescent girl in adult lingerie is distinctive and unusual. Mr. Weil admitted to doing this at the time of his guilty plea involving M.P. In this case, K.L. described the same misconduct.

[255] I find the detail, given by K.L., of Mr. Weil holding up what would be obviously larger and ill-fitting lingerie on K.L. by using elastic bands or hair bands to be particularly compelling evidence. It is hard to imagine that this detail is concocted rather than remembered.

[256] There is a high degree of connectedness between the misconduct Mr. Weil pleaded guilty to with M.P. and the allegations of K.L.

[257] It is true that Mr. Weil, according to K.L., engaged in significantly more sexual misconduct with her than with M.P. That could be for several reasons, none of which detract from the similarity of the misconduct that he did commit on both complainants.

[258] The disclosure by K.L. of sexual misconduct by Mr. Weil involving photographs came after the preliminary inquiry and after the production of the Agency’s record. That record sets out that S.A. knew that the prior conviction to which Mr. Weil pleaded guilty involved a girl touching his penis and him taking a picture of that.

[259] In a subsequent statement to the police, K.L. told the police officer that Mr. Weil had taken photos of her when she was dressed in lingerie. She had not spoken about Mr. Weil photographing her in lingerie before this interview on September 5, 2018.

[260] The uncontradicted evidence is that K.L. has never spoken to her mother, to this day, about the details of anything she said happened to her. At the time of the s. 278 Application, K.L.’s lawyer spoke to S.A. about what was in the Agency’s record. There was no evidence the lawyer ever spoke to K.L. about her mother’s records, much less told her any details. K.L. denied ever seeing any documents related to the s. 278 Application.

[261] K.L. offered an explanation for the delay in the disclosure of the photo-taking when she spoke to the police officer in September 2008. She told the officer that she wanted to add something to her statement. She said she had not spoken to anyone else about what she wanted to say. She said she had missed saying this disclosure because she was stressed. She said it was not a “new” memory. She told the officer that after she got the subpoena for the trial and was getting ready to go to court, she was thinking about what she said at the preliminary inquiry and could not remember if she said anything about the photos.

[262] K.L. then told the officer that when Mr. Weil dressed her in bras and underwear and put lipstick on her, she was not sure if she told the officer the first time that he took photos of her. When she thought of that, she wondered if this was covered in the charges already. Her court support worker told her she should talk to the police about any new allegations.

[263] In the subsequent statement, K.L. also described in significant detail the type of camera she said Mr. Weil used to take the pictures, which she also testified about in court. Of course, that prior consistent statement is presumptively inadmissible for the truth of its contents, and does not make her subsequent evidence of the camera at trial more likely to be true. It is, however, part of her subsequent disclosure at the time she told the police about the photo-taking.

[264] I find that the submission that K.L.’s subsequent allegation that Mr. Weil photographed her in lingerie was concocted based on something she heard from her mother or somehow learned from the s. 278 Application is completely speculative and without merit.

[265] I am entitled to draw inferences from facts I accept as true if they are reasonable inferences in all the circumstances. I cannot guess or speculate.

[266] Since D.D., the courts have not used delayed, or incremental disclosure, standing alone, as a basis to draw an adverse inference about the credibility of a complainant, particularly as it applies to allegations of historical sexual assault. It is but a factor to consider in assessing the reliability and credibility of the testimony of a complainant.

[267] The only direct evidence contradicting K.L. on this point is that of Mr. Weil. He said at this trial that he told S.A. back in 2007 that he took photos of M.P. dressed in adult lingerie.

[268] In the Agency’s record, the knowledge that S.A. is said to have had was that Mr. Weil pleaded guilty to sexual misconduct as follows: he had “a girl touch his penis and took a picture of that”. There is absolutely no mention of lingerie on the other child or photographing of the child in lingerie.

[269] That is very specific and unusual sexual misconduct. I would have thought that S.A. would have mentioned this conduct to the Agency’s worker if she knew about it, as the record suggests she knew about the touching of Mr. Weil’s penis. The record suggests the knowledge of the conviction details conveyed by Mr. Weil’s probation officer to the Agency was very general. The worker stated “Michael Weil was convicted of sexually assaulting a seven-year-old girl and for the publication of child pornography. She said that he took pictures of the child”.

[270] Accordingly, I find the additional disclosure of K.L. about the photographing of her by Mr. Weil while he was engaged in sexual misconduct was not concocted; it was delayed and incremental disclosure of sexual misconduct by Mr. Weil.

[271] For the following reasons, I do not believe Mr. Weil’s testimony that he told S.A. about this specific misconduct back in 2007. It was testimony that does not fit with the other evidence that I do accept.

[272] At the time of his police statement, Mr. Weil was asked what he had told S.A. in 2007 about his prior conviction for sexual misconduct involving a child.

[273] Mr. Weil told the police officer that he did not tell S.A. any details. He also told the officer that S.A. knew that he took photographs.

[274] At trial, Mr. Weil testified that he did tell S.A. very specific details of the photos he took: M.P. fondling his penis and dressed in adult lingerie.

[275] When I assess the evidence of the Crown witnesses and the Agency’s record compared to the bald assertion by Mr. Weil that he told S.A. that very specific sexual misconduct, I am satisfied on a balance of probabilities that the Crown has proven there was no conscious or unconscious collusion, tainting, or concocting of the specific sexual misconduct allegations that Mr. Weil photographed K.L. in adult lingerie. There is no air of reality to the submission that evidence of K.L.’s allegation of this misconduct is tainted by collusion, either conscious or unconscious, at the admissibility stage.

[276] The similar fact evidence is probative to assist the Crown to prove the actus reus of the sexual misconduct with which Mr. Weil is charged. As Spies J. wrote in Finelli, at para 65:

65 The similar fact evidence is the strongest possible since it resulted in guilty pleas. As for the inferences the Crown seeks to draw from this evidence, the inferences must accord with "common sense, intuitive notions of probability and the unlikelihood of coincidence." I ask myself the question I posed at the outset: as a matter of common sense, is it against all probability that, in light of what the Crown can show that Mr. Finelli did to the three similar fact witnesses on other occasions, it is a mere coincidence that the complainant is not telling the truth when she describes what she alleges Mr. Finelli did to her on one occasion? Given there is no evidence of collusion, in my view, the likelihood of such a coincidence is slight and the probative value of this evidence is high. Put another way, the likelihood of S. B. independently concocting such similar allegations, given what we know Mr. Finelli did to the three similar fact witnesses, seems highly remote. [Citations omitted].

[277] Notwithstanding the concession of defence counsel that, absent a finding of collusion, the evidence of the facts surrounding Mr. Weil’s guilty plea related to M.P. is admissible, as the gatekeeper, I must still balance the probative value of this evidence against the prejudicial effect of the admission of this evidence. This balancing process has been discussed in numerous cases.

[278] Again quoting from Finelli, Spies J. wrote at para. 72:

72 In the balancing process, it has been said that similar fact evidence should be admitted when its probative value is sufficiently great to make it "just" to admit the evidence, notwithstanding its prejudicial effect. I have concluded that it is just to admit the similar fact evidence in this case. As I have already said, the probative value of this evidence is high. As for moral prejudice, the proffered evidence goes far beyond the general disposition of Mr. Finelli. It is not being introduced with respect to the forbidden chain of reasoning to infer guilt from general disposition or propensity, and that can be reinforced in not only the Crown's submissions to the jury, but also in my instructions to the jury. The similar fact evidence is being introduced as evidence of a highly specific 'modus operandi' of the accused that was present when Mr. Finelli assaulted the similar fact witnesses and those assaults are very similar, in all of the circumstances, with the assault alleged by S. B.

[279] The similar fact evidence is therefore admissible as part of the Crown’s case to assist with the proof of the charges against Mr. Weil.

Substantive Charges

[280] There is but one issue for me to decide. Am I satisfied beyond a reasonable doubt that the sexual misconduct described by K.L. occurred and that Mr. Weil was the perpetrator?

[281] I will commence my analysis with an assessment of Mr. Weil’s evidence.

[282] Defence counsel submits that applying the principles from W. (D.), I should believe Mr. Weil, or his evidence should leave me with a reasonable doubt of his guilt of the offences. Defence counsel set out examples from the trial which support this submission.

[283] The Crown, on the other hand, submitted that Mr. Weil was a terrible witness. Counsel relied on examples from the trial to support her position.

[284] Defence counsel relies on the following submissions to support the conclusions he wants me to draw about Mr. Weil’s testimony.

• He testified in a straightforward and clear manner in cross-examination.

• He was not shaken about his core assertion that he never sexually touched K.L. He made concessions in cross-examination; he was candid. He answered precisely.

• He was consistent that he did nothing wrong with K.L. and he had no opportunity to do anything wrong with her.

• I can rely on his videotaped statement to the police pursuant to the principles in Edgar and conclude the following:

(i) Mr. Weil’s honest reaction when first confronted with the charge was surprise and denial of any wrongdoing.

(ii) The videotaped statement to the police is evidence that confirms his testimony at trial that he told S.A. specific details of his prior conviction, including details of what he did to the complainant in his prior conviction.

• Mr. Weil’s evidence that he did not want to be alone with children because of his probation order, and that he did not want to jeopardize his access to his son, should be believed.

• This is confirmed by the evidence that S.A. spoke to probation about Mr. Weil being able to be alone with S.A.’s children.

• I should accept Mr. Weil’s evidence that during the time Mr. Weil was dating S.A., he did not want to be alone with children or anyone else’s children.

• He conceded he was alone in a room with her children, but he also had no opportunity to commit the offences.

• Mr. Weil is one of the three main witnesses who has a clear memory of the events in 2007-2008. K.L. is a 17-year-old looking back at when she was four to six-years-old. S.A. admittedly had some mental health issues during this period. She does not remember being aware of details of Mr. Weil’s criminal conviction that the Agency’s record says she knew about. She is not a reliable witness.

• Mr. Weil explained his understanding of the probation order and the s. 161 order. He was wrong about the terms of the orders, but he was trying to be precise and clear in his responses.

• He agreed he had dinner with S.A. and her children, just not frequently. He knew about the “ritual” at dinner time; when the children would tell about their day but that does not mean he was there regularly. This did not amount to an inconsistency affecting his credibility.

• His testified that he did not see S.A. in her lingerie because they dressed in the dark. There is no basis to reject that evidence, as it is based on common sense and common experience.

• He testified that he had no significant relationship with the children; he was closer to C.L. than to K.L. This is confirmed by K.L.’s testimony that she “neither liked nor disliked” Mr. Weil.

• Mr. Weil testified as to regular compliance checks by Guelph Police Services; that would have affected his ability to be alone with the children. He knew he would be picked up if he drove with the two children in the car or was found alone with them.

• Mr. Weil had a good reason to remember the events from 2007-2008 and the details. Twelve years ago, Mr. Weil was under a probation order; if he had breached it, he would have gone back to jail.

[285] The defence position is that for all the above reasons I should believe Mr. Weil’s evidence, or it should leave me with a reasonable doubt of his guilt.

[286] The Crown relies on the following evidence of Mr. Weil to support her position that Mr. Weil is not believable, and that his testimony should not leave me with a reasonable doubt about his guilt:

• His evidence was self-serving. The thrust of his testimony was that he had no opportunity to abuse K.L. and had very limited involvement with her.

• The similar fact evidence is overwhelming and proves that Mr. Weil had a proclivity to do what he did to M.P. and also to K.L.

• Mr. Weil’s assertion that he was afraid to breach his probation and be around children is not true.

• He admitted he went to a family function with S.A. but said he did not know there would be children there. This makes no sense.

• The first time he met S.A., her children were there; the last time he was with her, Mr. Weil was alone in the house with the children.

• He distanced himself in his testimony from the ability to have any contact with the children while dating S.A. For example, he said when he stayed over on weekends and the children were there, he never saw the children in the morning. He testified the children were rarely in S.A.’s home when he was there.

• He agreed that at S.A.’s house, the door was left open and he could just walk in when he went there; he said he sometimes knocked before he went in.

• The children were primarily in S.A.’s home and Mr. Weil and S.A. were mostly together there.

• Mr. Weil had some of his belongings there. After his relationship with S.A. was over, he had her return boxes of his belongings he had left there.

• Mr. Weil had a picture of his son on display in S.A.’s house.

• The evidence contradicted Mr. Weil’s assertions. He was in the home and was part of the family; he participated in the domestic life of the family. He cooked and ate there; they went together to Marineland and to Rockwood Conservation Park.

• S.A. testified that Mr. Weil, when they dated, was “part of her life”. She said she would not hesitate to leave Mr. Weil alone with K.L.

• Mr. Weil’s testimony did not make sense at times. For example, he testified that his first meeting with S.A. was at Tim Hortons and that this was when he first learned that S.A. had children; she brought them to the Tim Hortons. He testified that the children were at a separate table, that they sat there and never interrupted the two of them for 30 minutes. He testified that S.A. never talked to the children while they were in Tim Hortons. The children were four and two at the time. This makes no sense. It also makes no sense that if he was very concerned about his probation order, and about not jeopardizing his pursuit of access to his son, that he would continue to be with S.A. after he found out she had children.

• Mr. Weil testified that he does not remember saying “hi” to the children that day, but he has a very specific memory of how he said “goodbye” to them. He did not specifically say goodbye to the children or to S.A., but he waved generally. There is no reason he would remember this unimportant detail from so long ago; it makes no sense. It is another example of Mr. Weil trying to distance himself from the children and making up evidence.

• The issue of Mr. Weil being “OCD”, and not liking to have soap on his hands, as the reason why he used a loofa, in and of itself was an innocent enough statement. However, when asked by the Crown if he could use the loofa to put soap on K.L., he said “no”, because the soap would seep through. It would seep through if he was using a loofa on himself as well. This evidence made no sense.

• S.A. said that she spoke to probation in March or the beginning of April 2007. The Agency’s record states that by the end of April, S.A. had been told by probation about the previous conviction of Mr. Weil. Mr. Weil had seen the children by that time. When he saw the children with S.A., he had not been “cleared” to see them at an earlier date than that set out in the Agency’s record. This shows Mr. Weil was prepared to breach his probation order and the s. 161 order.

• The Crown submits that Mr. Weil would not agree to innocent suggestions, such as that a child sees adults as natural authority figures, or that children are generally taught to obey adults, although he agreed that S.A.’s children were well behaved. He testified that he did not know what S.A.’s lingerie was like because they undressed in the dark, and he only knew it from watching her do the laundry.

• Another example of incredible evidence, according to the Crown, was Mr. Weil saying that the chocolate bars would not have melted in August 2007 because the climate was different then.

• The Crown submitted that Mr. Weil was inconsistent in what he told the police and what he told us at trial about the previous conviction details he told S.A. In the police statement he initially said that he did not tell S.A. the specific details. At trial, he testified that he told S.A. he took pictures of a child dressed in adult lingerie. That testimony is unbelievable. This specific misconduct is not in the police statement, and it is not in the Agency’s record.

• With respect to eating dinner, Mr. Weil said that he was not at S.A.’s home often for dinner and certainly not weekly. Later in his evidence, he said that he went there twice weekly. He also said that he was not there that often for dinner because he “didn’t normally eat dinner”. He also was feeding his cats or unwinding or “needed me time”.

• The Crown submits that his evidence that he did not know about the after-school ritual is consistent with him not being there, but he could speak to the dinner ritual because he was there regularly.

• When the Crown suggested that he could be alone with the children when S.A. was doing the laundry, he testified that the children went with S.A. to the laundry room. Then he said he usually was not there when S.A. did the laundry. He also said that is when he saw what kind of lingerie she had. This evidence made no sense and was contrived by Mr. Weil.

Conclusions on Testimony of Mr. Weil

[287] The testimony of Mr. Weil amounted to an outright denial of any wrongdoing.

[288] Do I believe that denial or does it leave me with a reasonable doubt of his guilt?

[289] The assessment of Mr. Weil’s testimony relies not on a parsing of a word here or there, or how he answered this question or that. I must fairly evaluate his evidence as a whole, in the context of the rest of the evidence at the trial, not in isolation. I must scrutinize his evidence in the same manner and with the same insight that I use for the testimony of the other witnesses at the trial, particularly K.L. I must deal with the evidence of Mr. Weil with an open mind.

[290] After considering all the factors that a trier of fact must bring to this assessment, I conclude that I do not believe Mr. Weil’s denial of misconduct nor does his denial leave me with a reasonable doubt of his guilt.

[291] I agree with many of the submissions of the Crown as to why Mr. Weil’s testimony should not be believed and which I have just summarized. I will highlight some of those considerations which affected my findings on the testimony of Mr. Weil.

[292] Mr. Weil’s attempt to distance himself from having any significant contact with S.A.’s children was incredible evidence. The children were four and two years old when the parties were initially dating. At that age, they would not be off leading independent lives. They would be very dependent on S.A. and be very involved in her life because they would need to be watched and cared for constantly. They were very small children at this time.

[293] Mr. Weil agreed he was in a serious relationship with S.A. soon after meeting her. He said that, at one point, he loved her. S.A. would have had to be involved in the care of very young children as a single mother and as the primary caregiver. S.A. was also, as of September 2007, in school full-time, on 12-hour shift placements, working part-time, and employed full-time at some point in 2008. Mr. Weil did not dispute this evidence. S.A. was a busy single mother who no doubt relied on many people, including Mr. Weil, for support, including support with her children.

[294] It does not make sense that Mr. Weil had virtually nothing to do with the children when he was in this relationship with S.A. The evidence that he never saw the children in the mornings after he stayed over is an example of distancing himself that made no sense. These were little children who would need adult supervision when they woke up. Or when he said he would give the children no parental direction, not even direct them if they were in harm’s way.

[295] This testimony seems contrived by Mr. Weil to convince the court that he had nothing to do with the children generally and no opportunity to abuse K.L. specifically. I find his evidence of complete lack of contact with S.A.’s children incredible.

[296] I do not believe Mr. Weil that he told S.A. in 2007 that he dressed M.P. in adult lingerie and photographed her when he described what he had plead guilty to in that case. The Agency’s record states that S.A. said Mr. Weil told her he had taken a picture of M.P. touching his penis. Given that dressing a little girl in adult lingerie is a particularly memorable image, I am confident that if S.A. knew of this misconduct at that time, or the Agency’s worker knew this detailed misconduct from the probation officer, it would likely have been mentioned at the same time as the touching of Mr. Weil’s penis was mentioned.

[297] In addition, Mr. Weil told the police in his first statement that he did not tell S.A. details of his misconduct. At trial he testified that he did tell her details about the picture-taking of the girl fondling his penis, and that he also told S.A. in 2007 about dressing the girl in lingerie and taking pictures. I do not believe Mr. Weil on this point. This inconsistency is significant. Mr. Weil knows that it was important for the court to believe that S.A. knew in 2007 about this misconduct. This is the only way he could suggest that K.L. had the details to concoct the allegation that Mr. Weil took her picture in lingerie.

[298] I found Mr. Weil to be evasive in answering many questions. Rather than relying on his memory, he said things like “anyone would” or “he is kind to most people he is around” or “most people would be sympathetic”. I found these answers were attempts to convince the court that he did not have any special relationship with, or show any special fondness to, K.L. in particular. I did not find Mr. Weil answered the questions in a straight forward and honest manner. I found he answered in a way designed to put himself in the best light possible.

[299] I found the evidence from Mr. Weil’s videotaped statement to be neutral in my assessment of his credibility. This evidence did not enhance nor detract from his credibility. There was nothing remarkable about it one way or the other. Mr. Weil, a stranger to me, could have been demonstrating complete surprise and shock, as he testified he was, or he could have been expressing resignation that he was found out about events that occurred long ago.

[300] In summary, I found Mr. Weil was not direct and forthright in his testimony. He gave answers that did not make sense. He testified in a way intended to set up an agenda of having nothing to do with K.L. to convince the court that he did not commit these offences.

[301] Mr. Weil was not a credible witness. I reject his evidence of having committed no wrongdoing. I do not believe Mr. Weil, nor does his evidence leave me with a reasonable doubt of his guilt.

[302] The rejection of Mr. Weil’s testimony is not enough. I must go on to consider all of the evidence at the trial and decide if I am satisfied beyond a reasonable doubt of the guilt of Mr. Weil.

K.L.’s Testimony

[303] The defence set out the following problems with respect to the testimony of K.L., which he relies on to submit that the Crown has not proven the guilt of Mr. Weil beyond a reasonable doubt.

• Because K.L. became upset when she was questioned about the Agency’s records and the s. 278 Application, this is some evidence to show that it is possible she reviewed the Agency’s record; that is how she knew about the misconduct involving Mr. Weil taking pictures; K.L. was upset that she had been “found out”. The defence submits that other than this one occasion at the trial, she was very composed when she gave her evidence.

• The defence submits that there had to be a “prompt” to trigger this memory of Mr. Weil photographing her, and that prompt was the Agency’s record.

• The defence also relies on the testimony of K.L. that she was 100% certain that she saw pictures of her mother in lingerie posing for Mr. Weil when he asked her to pose the same way. S.A. says that she does not remember that happening, “and I don’t think that would have happened”. The defence says evidence of K.L. on this topic is a complete falsehood. It is a demonstration that she is not credible on this issue in particular and that she is an unreliable witness generally.

• The unreliability of the memories of K.L. should raise a reasonable doubt that these events occurred. The defence submitted that K.L. said that looking back at memory was like “accessing a computer”. Her memory could be a bit different based on the questions that she is asked and also “prompts” that remind her of things.

• The defence submitted that it was improbable and virtually impossible that the events occurred as K.L. described while she was living in the Rockwood house. Given the number of times that K.L. said that Mr. Weil acted improperly, this would have to involve a significant amount of time; this is improbable evidence.

• The defence submitted that K.L. testified that she was 90 percent certain that she and Mr. Weil were alone at S.A.’s house at times. He submitted that this was a “far cry” from being 100 percent sure that they were alone.

• The defence submitted that the childcare arrangements were covered by K.L.’s father, who had the children two nights a week and every other weekend. S.A. also had her parents to look after the children when she needed them, and also other family members. Given this evidence, it is implausible that Mr. Weil would have been alone with K.L. as many times as she described.

• The defence submitted that the fact that K.L. believes that these incidents occurred, does not help me.

[304] The defence submission is that K.L.’s memory is too unreliable and too concerning, to form the basis for a conviction in this case. Further, Mr. Weil’s memory, in contradiction to this evidence, should cause me to reject K.L.’s testimony.

[305] The Crown relies on the following examples with respect to the testimony of K.L. to submit that her testimony, the testimony of the other Crown witnesses, and the rejection of Mr. Weil’s testimony, has proven the guilt of Mr. Weil beyond a reasonable doubt.

• The Crown submits that I should believe K.L. as to what she says Mr. Weil did to her. Specifically, the Crown submits that Mr. Weil confirmed some of K.L.’s evidence.

• Mr. Weil confirmed, as examples, K.L.’s memory about the use of a loofa in the shower to wash, the chocolate bars that Mr. Weil bought for her and her brother, the fact that Mr. Weil made deep fried potatoes in little designs, the fact that the first time they met was at Tim Hortons, and that her mom met Mr. Weil through something to do with computers.

• Mr. Weil confirmed that although he did not see S.A. in her underwear because they undressed when the lights were out, he did confirm that her underwear was white and pink and lacy because he said he saw it when she did the laundry. This is consistent with K.L.’s evidence that the underwear that was put on her was pink and white and lacy. She described it as more like “La Senza than Walmart” underwear.

• With respect to the kind of camera she said that Mr. Weil used when he took pictures, she said that it had a grip on the side and a screen on the back that showed other photos. Mr. Weil agreed that he did have a camera like that, and that one existed in K.L’s home. He said that it came with a printer and that it never worked.

• With respect to family dinners, the Crown submitted that K.L. said that Mr. Weil was a part of the family dinners at her house. Mr. Weil confirmed that he was there for family dinners and was aware of a ritual that they did at the dinner table where they went around and told everyone how their day had been. The Crown submits that Mr. Weil was at the dinner table enough to know that this was a ritual.

• K.L.’s description of Mr. Weil’s home on Woodlawn Rd. was confirmed to be the same colour and layout as Mr. Weil said it was.

• With respect to a picture in her home of Mr. Weil’s son, K.L. said that she saw a photo of Mr. Weil’s son on a bridge in her home. Mr. Weil agreed that there was a photo of his son in K.L.’s home but said that there was never a picture of his son on a bridge.

• Mr. Weil’s testimony confirms that K.L. had an accurate and specific memory of this time in her life when she was four to six-years-old. His testimony allows the court to find that K.L. is a credible and reliable witness. His evidence should give comfort to the court that she is accurate in her memory of what she says Mr. Weil did to her.

• Although some of the things that K.L. testified to were small, peripheral things that she remembers from that time period, this evidence confirms that her memory from this time period is accurate. This evidence should comfort the court that her memory of the allegations is also true.

Conclusion of Testimony of K.L.

[306] There is a specific characteristic of K.L.’s testimony which I found enhanced her credibility and made her a very compelling witness. It was the detail of the misconduct that she said happened to her. I will set out a few examples of that detail here.

• The memory of her brother knocking on her mother’s locked bedroom door while she was engaged in some sexual misconduct with Mr. Weil. She remembered this occurred around Christmas because she told her brother to go away and that she was wrapping his present. She also remembers being sorry she spoke up because Mr. Weil was angry at her for doing so.

• The sensation she had of having to go to the bathroom when Mr. Weil inserted his penis in her bum and her memory of asking him if she could go to the washroom. That is a vivid memory.

• When she saw the children in the pornography, she remembered thinking, “I was a kid and they were kids”; they had middle-aged men’s penises in their mouth, like she did.

• The memory of the manner in which Mr. Weil patted her lips with Kleenex or toilet paper after he put lipstick on.

• The memory of the “bribe” with an extra chocolate bar and putting the bars in the freezer so they would not melt.

• The coloured loofas that she washed Mr. Weil with and that he washed her with.

• Holding up the adult lingerie he dressed her in with elastics and hairbands.

• Her description of fellatio is how a child might describe this act; where he put his “sperm” on her; remembering the colour, smell and texture of what must have been semen, is vivid.

[307] The fact that I found K.L. to be credible and compelling does not take away from my duty to also scrutinize her evidence to ensure it is reliable before I act upon it.

[308] The defence really only took issue with four aspects of K.L.’s testimony. This goes some way in demonstrating what a compelling witness K.L. was, given the detailed evidence she gave about what she said Mr. Weil did to her.

[309] The first example of problematic evidence of K.L. was her saying that Mr. Weil showed her pictures of her mother in photos in bras and lingerie and told her to pose like her. In fact, her evidence was that she was “pretty sure” that she saw pictures of her mother, but she was not 100 percent sure she saw pictures of her mother in lingerie. S.A. said that she did not “think” Mr. Weil would lake pictures of her in lingerie.

[310] With respect to this evidence, I do not agree with the defence that the evidence of K.L. was “false” on this issue. She qualified that she was not 100 percent sure that she saw her mom in lingerie. Her memory is that she saw pictures of her mother shown to her by Mr. Weil and was told to pose that way.

[311] There is no hard and fast rule as to how trial judges should assess different witnesses’ ability to remember the same event. Like eyewitness identification, it would be wrong to find that one witness’ lack of memory of the event proves that another person who has that memory is a liar. We all remember things differently even when we have experienced the same event. That is a fact of memory. K.L. understood that when she testified that “memory is not a phonebook”. I do not need an expert to tell me that as humans, our memories, both what we remember, and how, is complicated.

[312] I do not know why S.A. does not remember that pictures were taken of her. This was a very difficult time for S.A. There is a lot she does not remember. I am not impressed that Mr. Weil did not testify to taking S.A.’s pictures and showing them to K.L. It would not be in Mr. Weil’s interest to give this evidence. I believe K.L. when she says that she saw pictures of her mother. Whether or not she was in lingerie, I do not know. It does not matter in my assessment of K.L.’s credibility and reliability of her testimony. It is a peripheral memory that I must assess considering K.L. is an adult looking back to when she was four to six-years-old.

[313] The second failing in K.L.’s testimony that the defence relies on is that she became upset when he asked her about the s. 278 Application as well as what she knew about Mr. Weil sexually abusing another child and taking photos of that abuse. It is true that K.L. asked for a break at that time. According to K.L.’s evidence, which I have accepted, this was the first time that she knew anything about Mr. Weil having sexually abused another child. It was also the first time that she was challenged on her evidence. Defence counsel suggested that she had learned about the sexual misconduct of Mr. Weil against another child and photographing that sexual misconduct from the material on the s. 278 Application. K.L.’s reaction is understandable. This was the first time she learned about this prior abuse of another young girl. She was also challenged that she used the details of the other girl to make up the misconduct she said Mr. Weil did to her. I reject the submission that this demeanour evidence of K.L. undermined her credibility as a witness.

[314] Defence counsel took issue with K.L.’s evidence at trial and at the preliminary inquiry when she said that Mr. Weil had put his penis in her mouth. She agreed that she did not say that when she first spoke to the police.

[315] K.L. gave a rational and understandable explanation for that omission. I set it out in detail earlier in this decision. K.L. said she was “super uncomfortable when she spoke to the police” the first time. She said she did not tell them everything in detail. She also said this specific memory was always there. I accept K.L.’s evidence that Mr. Weil committed this misconduct.

[316] The fourth piece of evidence that the defence submitted shows that K.L. was not credible and reliable was that of her late disclosure that Mr. Weil took pictures of her when she was dressed in adult lingerie. She described this misconduct for the first time in September 2018, which was after her initial statement to the police, and after the preliminary inquiry. It was also after the s. 278 disclosure from the Agency had been made.

[317] There could be many reasons why K.L. made this delayed disclosure about the taking of pictures by Mr. Weil of her in adult lingerie. One of those explanations is that it came about as the defence submitted. I reject that submission.

[318] I found K.L.’s testimony on this issue to be compelling and believable. As I set out in the analysis under the similar fact evidence application, it does not seem realistic that this unusual misconduct would not be referred to by the social worker, as something that S.A. was aware of at the time, when she did refer to the photo of the child touching Mr. Weil’s penis.

[319] K.L. gave an explanation as to why she did not remember this evidence which I set out earlier. That evidence makes sense and does not undermine my trust in her evidence. Further, I have assessed K.L.’s evidence on this issue, comparing it to Mr. Weil’s evidence that this was a detail that he told S.A. back in 2007. It is to be remembered that he denied he told S.A. details, when he was first confronted with the charge, to the police.

[320] I have also assessed K.L.’s testimony in the context of S.A.’s testimony.

[321] In assessing the credibility and reliability of K.L.’s testimony, I did not rely on the Crown’s submission that K.L. had no motive to lie about the allegations against Mr. Weil.

[322] Defence counsel did not suggest that there was any proven motive for K.L. to lie.

[323] As set out in Bartholomew, the evidence on this issue was neutral at best.

[324] Nor did I rely on K.L.’s demeanour when she disclosed the sexual misconduct to her teacher to enhance her credibility. There are many reasons K.L. could have been upset at this time. That it demonstrates she was telling the truth about the allegations is just one of them. Without more, it would be dangerous to use this demeanour evidence as a sign of truthfulness on the part of K.L.

[325] I have considered the detailed and very specific allegations of K.L. regarding Mr. Weil’s misconduct. The defence submits that these allegations are concocted.

[326] The only possible detailed misconduct that K.L. is alleged to have any knowledge about is that of Mr. Weil taking a photo of a child fondling his penis and when she was dressed up in adult lingerie.

[327] I have rejected that K.L. knew anything about Mr. Weil and his previous sexual misconduct. Even if somehow she did have that knowledge, it does not explain the very specific and detailed other misconduct she described, such as attempts at anal intercourse, fellatio, and bringing or having his sperm in a container which he spread on her stomach. There is simply no basis or merit to the defence position that K.L. made up these allegations.

[328] I have no difficulty finding that these are memories of a 17-year-old, remembering what Mr. Weil did to her when she was between four and six-years-old.

Other Crown Evidence

S.A.

[329] S.A. is the mother of K.L.

[330] There can be no doubt that the evidence of S.A. must be considered very carefully and assessed by me for both credibility and reliability. S.A. was in a very compromised position at the time she was dating Mr. Weil. She testified that she had just come out of Homewood because of mental health issues. She had been in Homewood for three months. She testified that this was not the first time that she had suffered from mental health issues.

[331] S.A. testified that at the time of these events, she was on anti-depressants and anti-anxiety pills and she was very vulnerable.

[332] When she was asked whether the children were her number one priority, and whether she would have protected them, she testified that, “I did the best I could with the capacity that I had at the time”. She went on to state that she clearly did not “protect her children” as she should have; that her children “were not safe”.

[333] She also said something very telling. S.A. said that “regardless of what I knew, I still trusted him”. Mr. Weil said that S.A. asked him “do you plan on doing that again?” and he answered “no”. This is some evidence that S.A. did her best, at that time, to protect her children.

[334] S.A. testified that one of the reasons she fell in love with Mr. Weil was that he was good with her children. That evidence makes sense, as S.A. was in need of support in her life and with her children at the time.

[335] I also found the following statements in the Agency’s record from April 25 and April 30, 2007 instructive on the state of mind of S.A. at the time:

• S.A. told the Agency’s worker that she might not continue the relationship if the process is too complicated.

• S.A. told the Agency’s worker that Mr. Weil had told her about the offence and that she feels that “it is a one-time incident and was not pre-meditated”. She said that he had not thought about what he did to that child, before actually doing it.

• S.A. acknowledged that Mr. Weil had told her that he had a girl touch his penis and took a picture of that. She went on to say “that he (Mr. Weil) had been diagnosed as an “extremely low risk to re-offend”. She told the worker that Mr. Weil “talks” and seemed to be suggesting, in the worker’s mind, that fact makes him less of a risk to re-offend.

• The worker wrote that S.A. did not feel that Mr. Weil is at any risk of doing anything to her children. S.A. told the worker that he is “not sexually attracted to children”.

• S.A. told the worker that she saw Mr. Weil away from her children and that her children have not had any contact with Mr. Weil.

• On April 30, 2007, in a follow-up telephone call with S.A., she stated to the worker that “there is so much process”; she and Mr. Weil have decided that there is no urgency to meet her children and that they have opportunities to see one another without having to get a babysitter. They were going to postpone their involvement with the Agency.

• the Agency closed their file.

[336] The later statements by S.A. to the Agency worker are, as the evidence clearly demonstrates, not true. The children had been with Mr. Weil at the time S.A. spoke to the worker.

[337] As set out above, S.A. was in a very compromised and fragile state of mind in 2007 and 2008. The defence submits that it defies commonsense that she would have left her children alone with a convicted child molester. The defence also submitted that she would have asked her children if everything was okay, and she would have told her children what Mr. Weil had done to another child. Defence counsel suggested that she might have even asked her children whether they were having showers with Mr. Weil.

[338] All of those questions and concerns might have been reasonable for a person with absolutely no mental health issues or frailties. That was not the mother that K.L. had at that time, and it is not the witness that I am assessing.

[339] S.A. admitted that she has no memory of knowing that Mr. Weil committed sexual assault with another child as set out in the Agency’s record. She does not deny that she must have known it according to the record, but she simply has no memory of it.

[340] There are some memories that she knows about in thinking about that time. One is that Mr. Weil was a part of her caregiver circle. As such she is quite certain she would have left her children alone with Mr. Weil. She also testified that he was very kind and considerate in the beginning and that she trusted him.

[341] I accept that S.A. did the best she could with the capacity she had at the time. Her testimony must be carefully assessed.

[342] I have done so and conclude that there is nothing in the testimony of S.A. that undermines my lack of trust in the testimony of K.L. as to what she says Mr. Weil did to her.

Final Decision

[343] I find, for the reasons set out above, that there were significant problems with Mr. Weil’s testimony, which lead me to disbelieve his denial of wrong-doing. Further, his testimony does not leave me with a reasonable doubt of his guilt.

[344] Further, in my assessment of the credibility and reliability of the main Crown witness, K.L., when considered in the context of the rest of the evidence at this trial, I am satisfied that the Crown has proven the guilt of Mr. Weil beyond a reasonable doubt.

[345] This is one of those cases discussed by Doherty J.A. in J.J.R.D., where the denial of wrong-doing by an accused can be rejected based on a considered and reasoned acceptance beyond a reasonable doubt, of a complainant’s evidence.

[346] I have set out above why I found K.L.’s evidence to be credible and compelling as well as reliable. I have addressed the only real challenges there were to her evidence by the defence. None of those challenges shake my confidence in this very compelling witness.

[347] The similar fact evidence can be used by me as additional proof of Mr. Weil’s guilt. The evidence was introduced and is accepted by me as evidence of highly specific sexual misconduct of Mr. Weil. This evidence demonstrates Mr. Weil’s propensity to abuse pre-pubescent girls in at least one way by dressing them in adult lingerie and taking pictures.

[348] This evidence is not tainted by conscious or unconscious collusion. It is part of the Crown’s evidence that proves the guilt of Mr. Weil.

[349] The similar fact evidence corroborates K.L.’s evidence as to what she says Mr. Weil did to her, among other sexual misconduct.

[350] There was no issue taken by defence counsel, that if Mr. Weil perpetrated the acts as described by K.L., he is guilty of all of the sexual offences set out in the indictment. It follows that Mr. Weil is also guilty of the breach of probation offences.

[351] On all of the evidence I am satisfied of the guilt of Mr. Weil beyond a reasonable doubt on all of the counts in the indictment.

“Justice Mossip”

Justice Mossip

Released: November 13, 2019

COURT FILE NO.: 17-0530

DATE: 2019 11 13

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Michael Arthur Weil

REASONS FOR JUDGMENT

Mossip J.

Released: November 13, 2019