COURT FILE NO.: CR-18-SA5061

DATE: 2020/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Denis Guindon

Michael Boyce

Joshua Clarke

HEARD in Ottawa: February 18-28 and March 3, 2020

reasons for decision

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.

o’bonsawin J.

Background

[1] This is a historical case in which the complainant, RB, alleges that the accused, Denis Guindon (“Mr. Guindon”), sexually assaulted him between May 1, 1974, and December 21, 1983. More specifically, Mr. Guindon was charged with committing indecent assault on a male (s. 156), sexual assault (s. 246.1) and buggery (s. 155) contrary to the Criminal Code, R.S.C. 1970, c. C-34 (“Code”). He pled not guilty.

[2] RB and his brother, GB, were removed from their mother’s care and placed in foster care. GB is eleven months older than RB. When RB was six or seven years old, he and his brother were placed in the care of the Guindon family. The foster family consisted of the parents, Wilfred and Dorothy; and Paul and Mr. Guindon, the sons. RB alleges that Mr. Guindon sexually assaulted him over a period of approximately ten years.

[3] The issue in this case is whether the Crown has proven beyond a reasonable doubt that the sexual assaults occurred. This turns on an assessment by the court of the credibility and reliability of the evidence provided. The parties agreed that consent was not an issue.

[4] At the commencement of the trial, the parties agreed to a section 486.4 Order prohibiting the publication of information that could lead to the identification of the complainant.

[5] The Crown called four witnesses to testify: RB, SB (RB’s mother-in-law), CB (RB’s wife) and GB. Mr. Guindon elected to testify. His wife, Nancy Guindon, and his brother, Paul Guindon, also testified.

Evidence

[6] I will review the evidence of the witnesses.

Evidence of RB

[7] RB is currently 52 years old. He is a Francophone that also speaks English. He speaks French in his home. He was born in Hamilton but grew up in Ottawa. He was removed from his mother’s care by the Children Aid Society at a young age and placed in several foster homes. He was placed with the Guindon family when he was six or seven years old. He left the Guindon residence when he was sixteen or seventeen years old. RB completed grade eleven.

[8] RB has an adult son, DB. RB has been married to CB for approximately eight years. He currently resides in Calgary with CB, SB and SB’s son.

[9] Due to RB’s criminal record, he has difficulty finding employment. He is currently employed as a painter.

[10] During RB’s time with the Guindon family, he resided at three different addresses: 262 Guigues Street (“Guigues”), 325 Murray Street (“Murray”) and a Co-op near Murray (“Co-op”).

[11] RB could not remember the age difference between himself and Mr. Guindon.

[12] RB described Wilfred Guindon, the foster father, as a retired alcoholic who always watched television. He described Dorothy Guindon, the foster mother, as a housewife who prepared the meals and took care of the children. Dorothy Guindon took good care of them and RB felt loved by her. She went out two or three times per week to go play bingo and see her friends.

[13] When the family lived at Guigues, RB shared a bedroom with GB. Mr. Guindon had to go through their bedroom to get to his bedroom.

[14] When they first arrived at Guigues, RB spent a lot of time with Mr. Guindon. They used to go out to Baskin Robbins, Record Runner, for car rides and to the mall. Mr. Guindon bought him whatever he needed, like clothes and shoes. One time, Mr. Guindon went on a trip and brought RB back a pair of snake skin boots but did not bring a pair for GB.

[15] RB went on different trips with Mr. Guindon. They went to Montreal with Paul Guindon and Johanne, to Wonderland in Toronto, to the Granby Zoo and to the Bronx in the United States.

[16] When RB was alone with Mr. Guindon, most of the time GB was either watching television with Wilfred Guindon or playing outside.

[17] RB’s first memory of sexual touching with Mr. Guindon was when he used to sit on Mr. Guindon’s lap at Guigues. He remembers that the sexual touching did not start right away after he moved in with the Guindons. It started after Mr. Guindon bought him things. He used to sit sideways on Mr. Guindon all the time. Mr. Guindon wore Adidas shorts and did not wear underwear. While sitting on a La-Z-Boy chair outside of the kitchen with Mr. Guindon, RB felt something hard pressing against his back. He reached behind and felt it was Mr. Guindon’s penis. RB touched Mr. Guindon’s penis over his clothes. Mr. Guindon did not tell him not to touch it, “it was all fun”. RB was surprised. He does not recall anyone else being there at the time. At first, the touching was above Mr. Guindon’s clothes. Eventually, RB had his hand inside of Mr. Guindon’s clothes. At times, Mr. Guindon put RB’s hands on the former’s penis and at times RB put his hand there himself. Mr. Guindon was excited; he liked it, giggled and smiled. At this point, RB thought this behaviour was normal.

[18] Mr. Guindon told him, “Don’t be scared. It is normal for two guys to be together. Take pictures. It is all good. Don’t be shy about your body”. RB used to spend a lot of time alone with Mr. Guindon in the latter’s bedroom. Mr. Guindon asked RB to strip down naked and he did the same. Then, Mr. Guindon took photographs of them with his Polaroid camera. The photographs consisted of Mr. Guindon holding RB’s penis in his hands and of RB holding Mr. Guindon’s penis in his hands. At times, RB was seated on top of Mr. Guindon (they were both facing forwards) on the La-Z-Boy chair that was in the bedroom. At this time, Mr. Guindon knew RB was timid, afraid and kept to himself. Mr. Guindon told him that he would take photographs and that Mr. Guindon would get rid of them later. After the photographs came out of the camera, Mr. Guindon put them in an envelope and said that no one would see them. RB did not know where Mr. Guindon put the envelope. On one occasion, Mr. Guindon took photographs of RB and GB standing together naked in the bathtub. Mr. Guindon told RB that if RB ever told anyone about what they did together, “they would take [him] to another foster home and [he] would be abused”. Mr. Guindon knew that RB had had difficulties in other foster homes. RB did not tell anyone about the sexual touching because he did not want to get moved to another foster home and get beat up. RB was afraid, but Mr. Guindon was nice to him and RB trusted him. When there was no sexual touching in Mr. Guindon’s bedroom, RB watched television and listened to music with Mr. Guindon. GB never spent any time with them in Mr. Guindon’s bedroom.

[19] RB was unsure of when they moved from Guigues to Murray. It could have been four years after he first arrived. Wilfred and Dorothy Guindon, Mr. Guindon, GB and RB all moved to Murray. Paul Guindon had left home by that time. At one point, GB left the Guindon residence to return to his mother’s residence because Mr. Guindon grabbed GB by the throat during an argument. RB did not want to go live with his mother because it was not a stable home and he did not have a relationship with her. In addition, RB was happy where he was. At Murray, RB and Mr. Guindon’s bedrooms were located on the second floor and were across from each other. There were bunkbeds in RB’s bedroom. GB slept on the top bunk and RB on the bottom.

[20] The sexual touching progressed at Murray: “It started more hardcore when my brother moved out”. Mr. Guindon taught RB how to perform a hand job and how to perform oral sex, telling RB, “Don’t use your teeth. Use your lips. Just suck and don’t go fast. Go slow”. RB got down on his knees and gave Mr. Guindon oral sex. Mr. Guindon also wanted RB to masturbate the former and “play with his balls” at the same time RB performed oral sex on him. Mr. Guindon played with RB’s scrotum and his penis. RB used to gag because Mr. Guindon pushed his penis inside of RB’s throat. RB lay down on the bed with Mr. Guindon, they touched each other’s penises and they did the “69” position. When they did the “69” position, Mr. Guindon told RB, “Let’s do something different”, to which RB replied, “ok”. They stripped down, and Mr. Guindon showed RB how to position himself on the bed. Mr. Guindon’s head was towards the headboard and RB’s head was towards the former’s feet at Mr. Guindon’s penis. RB also lay on top of Mr. Guindon; RB had his hands towards Mr. Guindon’s shoulders with his knees on each side of Mr. Guindon, their penises facing each other. Mr. Guindon grabbed both penises with one hand and masturbated them. Mr. Guindon said, “Don’t be afraid or shy of your body, all good”. Mr. Guindon ejaculated but RB did not because he “was way too little”. Mr. Guindon wanted RB to squeeze the former’s nipples when RB was playing with Mr. Guindon’s penis. On one occasion, Mr. Guindon said, “Let’s try something different”. They both stripped down, and Mr. Guindon put RB into the doggy-style position, on all fours, with RB’s head facing the headboard of the bed. Mr. Guindon told him, “Nothing wrong will happen”. Mr. Guindon came back with a jar of Vaseline, put some on RB’s anus and told him, “I will try to penetrate my penis in your ass. I will rub my cock on your ass to make you feel comfortable. It will not hurt. We will go slow”. Mr. Guindon put the cap of his penis inside of RB’s anus, and RB said, “Ow, ow, it hurts”, and Mr. Guindon pulled out. Mr. Guindon then said, “It may hurt a bit but it will be ok”. Mr. Guindon did not wear a condom. Mr. Guindon asked RB if he wanted to do it again and RB replied “no”. RB went to the bathroom, took the Vaseline out of his anus, jumped into the shower and cried. This was the only time that Mr. Guindon tried to penetrate him anally.

[21] After GB moved out, the sexual assaults took place pretty much every evening: after school, after supper and on weekends. Their normal routine after school consisted of arriving home, doing their homework, Dorothy Guindon cooking supper and playing outside until supper was ready. RB was trapped with Mr. Guindon every weekend. Whenever there was a chance, RB testified, “We play, touch, watch television [sic] and listen to music”. RB did not tell Mr. Guindon he did not want to do the sexual acts because he was scared and felt uncomfortable. He was scared he would lose Mr. Guindon’s respect.

[22] When RB provided Mr. Guindon with oral sex, RB did not have any pubic hair and Mr. Guindon had a “full patch of hair”. RB testified, “I used to have pubic hair in my mouth and I knew how cum tasted at a young age”. RB did not want to swallow Mr. Guindon’s semen, but Mr. Guindon told RB that he would give RB money if he did so. Mr. Guindon gave RB change from his change jar that was in Mr. Guindon’s bedroom. The sexual assaults occurred in Mr. Guindon’s bedroom.

[23] On one occasion, RB had a friend sleep over. They went to bed, and the friend slept on the top bunk. For some reason, RB ended up going to Mr. Guindon’s bedroom to watch television. Mr. Guindon told RB to follow him and that they would try something different. They went into RB’s bedroom, and Mr. Guindon tried to go under the blanket and touch the friend’s penis. RB pulled Mr. Guindon’s arm to stop him. The friend did not wake up. They returned to Mr. Guindon’s bedroom. RB was jealous, mad and he cried. RB was attached to Mr. Guindon because of all of the attention Mr. Guindon gave him, and it made him jealous that Mr. Guindon would touch another kid. RB testified, “It is stupid to say that at a young age, but I don’t know”. Mr. Guindon ended up by buying RB a pizza to shut him up. Mr. Guindon told RB that he would not have touched his friend and said, “I just want to be with you”.

[24] When they went to Montreal, RB stayed in Mr. Guindon’s room. There was a coin-operated vibrating bed. RB performed oral sex on Mr. Guindon and gave him a hand job on the bed. Paul Guindon and Johanne had their own room.

[25] Only Dorothy Guindon, Mr. Guindon and RB moved into the Co-op that was located on St. Patrick across the street from Murray. Wilfred Guindon had passed away. The sexual assaults continued. In addition, RB and Mr. Guindon used to take showers together and masturbated each other. Mr. Guindon also laid on his back with a pillow under his “ass” and wanted RB “to suck on his ass while he was masturbating”. Mr. Guindon liked it when RB played with Mr. Guindon’s anus. RB testified, “He said, kiss my ass; lick it.’ I said, ‘Okay’. I licked it and stuck my tongue in his ass”. The sexual assaults were happening about the same rate as they were at Murray.

[26] When RB was fourteen years old, Mr. Guindon gave him a full stereo system and all kinds of other stuff. RB was happy about the stereo.

[27] When RB was about fifteen years old, he went into Mr. Guindon’s bedroom to watch television after school when Mr. Guindon was at work. The latter had a safe in his bedroom at the footboard of his bed. The footboard was visible as soon as someone walked into the bedroom. It was a square safe. The safe was open, RB looked inside of it and saw an envelope. He peeked to see if it was the Polaroid photographs of him and Mr. Guindon naked. He does not recall if the photographs of he and GB naked in the bathtub were there also. RB was disgusted and thought, “What if someone found them?” He took the photographs across the street to the projects and burned them. That night, Mr. Guindon asked RB why the safe was open. RB responded that he had burned the photographs. Mr. Guindon was angry. He said, “Ce n’était pas correct. You should talk to me. That was not right”.

[28] When RB was fifteen or sixteen years old, he started to “fade away” and spend less time with Mr. Guindon. He had friends and realized what was happening with Mr. Guindon was not normal: “I knew it was not normal. I was not interested in a man. I didn’t want to get raped. I wanted to be with girls. I wanted a life for myself and explore [sic] out there”. Mr. Guindon asked him why he was not sleeping at home anymore. Mr. Guindon did not want RB to have friends.

[29] Possibly a year afterwards, RB moved out of the Guindon residence into a bachelor pad. He had a lot of anger when he moved out. He turned to a criminal lifestyle. RB was charged for breaking and entering, stealing cars and whatever he had to do to survive. RB was in “big pain…society was not there or police to help me out. I rebelled. Even today I know I have anger issues. When I take a shower now, I think of [Mr. Guindon] all the time, even at work”.

[30] After he moved out, RB kept in contact with Mr. Guindon. RB visited him, talked to him and Mr. Guindon visited him at his apartment. At that time, he thought Mr. Guindon was a good role model but he knows now that Mr. Guindon did not bring him anything good. RB does not know why he kept in contact with Mr. Guindon. RB testified, “I wish someone could answer that question for me: Why?”

[31] RB married CB in 2012. She changed his whole life around. She has had a lot of patience with him. He told her that he had a secret that one day he would reveal to her.

[32] RB submitted a claim to the Criminal Injuries Compensation Board (“Board”) in May 2016. His brother, GB, told him about the Board. He wanted to go to the Board for them “to hear [his] story”. He was not aware at first that he could receive compensation. In his initial application, RB did not name Mr. Guindon. He later added the information about Mr. Guindon. He received about twenty thousand dollars in compensation, but his lawyer took a chunk of it.

[33] After he filed his claim with the Board, RB told CB that Mr. Guindon had sexually assaulted him. The disclosure occurred when they were out for groceries at the Superstore. She was the first person he told. His wife started crying in the store, and they left their groceries there and left. Over time, he told her more details about the sexual abuse. CB told him that he should charge Mr. Guindon since he did not deserve what had been done to him. She said she would respect whatever decision he made. Afterwards, RB also told SB that Mr. Guindon had sexually assaulted him.

[34] RB wanted some closure. One day, RB and SB went out to Dollarama. He wanted to call Mr. Guindon but he did not want to use his cellular phone because Mr. Guindon would recognize his number. Consequently, they drove around and tried to locate a pay phone, without success. They decided that RB would use SB’s cellular phone. They were parked in a parking lot when he placed the call. RB called Mr. Guindon and his wife Nancy Guindon answered. RB said, “Hey Nancy, c’est moi”. She responded, “Fuck off”, and hung up. RB knew that Mr. Guindon was going to receive the Board papers. Shortly afterwards, Mr. Guindon called back. Mr. Guindon told him that he had received the letter from the Board. Mr. Guindon said that he was happy in his marriage and that he could not go to jail because if he did, he would kill himself. Mr. Guindon said he regretted sexually assaulting RB when RB was young and said that he (RB) was the “last one”. Mr. Guindon asked RB why he went to the Board. RB told Mr. Guindon that he would not press criminal charges if he received a letter of apology with details from him. The phone call was not on speakerphone. RB called Mr. Guindon again. He told Mr. Guindon that he still had the naked photographs since he had not burned them. Mr. Guindon asked where the photographs were located, and RB was in a bind. His mother-in-law told him to tell Mr. Guindon they were in a safe, and that is what he told him. Mr. Guindon was crying and sobbing. Mr. Guindon responded that he wanted to meet in Ottawa to exchange the apology letter for the photographs. Mr. Guindon told RB that he could not go to jail and that he was sorry for his actions. RB responded that he should write the letter. Mr. Guindon took CB’s email address and then the phone call ended. This phone call was on speakerphone because RB wanted to record it. CB had shown him the day before how to record a phone call on his cellular phone. When RB and SB returned home, they tried to play the recording. They were disappointed because it did not record. They must have pressed the wrong button. At that time, RB did not have an email address and he was not computer literate. He only knew how to place a call on a cellular phone.

[35] RB received Mr. Guindon’s letter through CB’s email address. RB was frustrated and upset after he read the letter. It was not a direct letter like he had asked for from Mr. Guindon. RB testified, “If [Mr. Guindon] was a big brother, you don’t molest a brother. All the good things he did for me was just to will me in as a kid; buy me candy, shoes, just to have what [Mr. Guindon] wants. If he was sincere, I would have considered it. It was just a big joke, a slap in the face”. CB typed out RB’s reply to Mr. Guindon and they sent it out.

[36] When he was in Ottawa for the Board hearing, the Board told him to press charges against Mr. Guindon. He only had two hours to do so before he returned to Calgary. He talked to his wife on the phone and she wrote out a statement for him. CB sent it to RB’s sister, and they were able to print it out at a community centre known to GB. RB then brought it to the police station. RB decided to proceed with criminal charges because he wanted to receive a letter of apology from Mr. Guindon. Since Mr. Guindon never sent him an honest letter of apology, RB got mad, and CB was pushing him to file with the police. He filed criminal charges. He also went to the Calgary police later and provided a video statement. RB did not provide all the details of what happened with Mr. Guindon because he was on guard going to the police station because of his criminal record and felt ashamed.

[37] RB maintained contact with Mr. Guindon after RB moved out. At one point, RB asked Mr. Guindon to keep an eye out on his son, DB. Mr. Guindon took DB out on Saturdays for activities. In 2005, DB was placed by the Children’s Aid Society with Mr. Guindon and his wife. DB was then returned to RB’s care. DB continued to see Mr. Guindon. When asked why he permitted DB to spend time with Mr. Guindon, RB responded that Mr. Guindon was not a criminal; he was a role model and could show his son “the ropes.” At that time, RB was not spending time with positive people. His head was “not on straight” and he did not think that Mr. Guindon would touch his son.

Evidence of SB

[38] SB is currently 52 years old. She is on a disability pension. She is not educated and is not good with technology. She resides in Calgary with her daughter CB, RB and her son. Prior to that, SB resided in Edmonton. They speak French at home.

[39] SB was in a relationship with GB and they have two children together. They are no longer in a relationship together. This is how she met RB, who she has known for twenty years.

[40] After they moved to Calgary and while she was at CB and RB’s house, she saw a book about a hockey player that had been molested. She asked RB and CB about the book. RB asked CB if he should tell SB, CB covered her ears and RB told her that Mr. Guindon had raped him when he was young. He did not provide her with details. At that time, RB and CB were living together and SB had her own separate place. Afterwards, CB and RB moved in with SB and her son because SB was ill.

[41] One day, SB and RB decided to go to Dollarama while CB was working. RB drove his vehicle. RB told her that he wanted peace of mind and wanted Mr. Guindon to admit what he did to him to close this chapter. RB said that if he called from his cellular phone, Mr. Guindon would not answer. They decided to drive around to find a payphone but could not find one. They parked in a parking lot and RB called Mr. Guindon with SB’s cellular phone. The call was not on speakerphone, but SB was sitting right next to RB. RB said, “Hi Nancy, it is [RB]”, and then SB heard Nancy scream, “Fuck off, [RB]” and then hung up. Shortly afterwards, Mr. Guindon called back, and the call was not on speakerphone. She heard RB say hello to Mr. Guindon. The conversation was in French. She could not hear the conversation, but it had to do with the Board letter that Mr. Guindon had received. The conversation lasted about five minutes. They went back home afterwards and dropped off their bags. RB told her that he wanted Mr. Guindon to write him a letter of apology and he wanted to record their conversation. RB did not think that SB would believe him about being sexually assaulted by Mr. Guindon, but she did. They went out again and parked in a parking lot. RB called Mr. Guindon and this call was on speakerphone so that they could record the conversation. The call was in French. SB heard Mr. Guindon sobbing. She heard Mr. Guindon apologize to RB for what he did to him and say that he did not deserve that. She also heard Mr. Guindon swear that RB was the “last one.” Mr. Guindon said that his wife would divorce him and if he had to go to prison and that he would kill himself. RB knew that Mr. Guindon had had two heart attacks. RB then said that he still had the Polaroid photographs and Mr. Guindon asked him where they were. RB did not know what to respond and SB whispered to him that they were in a safe. RB told Mr. Guindon they were in a safe. Mr. Guindon asked if they could exchange the photographs for the letter when RB went to Ottawa. SB also recalled that Mr. Guindon asked RB for his address to send him the letter but then he wanted to send it to an email address because it would be faster. RB gave him CB’s email address. RB told Mr. Guindon that he did not want to go the criminal route. SB was very happy they had caught Mr. Guindon on the recorder, and she was surprised there were other children. She thought that Mr. Guindon had truly sexually assaulted RB because, otherwise, he would not have agreed to send the letter.

[42] When they returned home, RB did not want to touch anything in case they erased the recording, so they waited for CB to come home from work. After CB arrived, she pressed to hear the recording but told them there was nothing recorded and they had done it incorrectly. RB was upset and asked SB if she now believed him. She told RB she had always believed him; she heard Mr. Guindon admit it and he said that RB was the “last one”.

[43] Before SB went to the police station, RB told her to tell the truth.

[44] SB is not good with dates or times.

Evidence of CB

[45] CB is currently 33 years old. She resides in Calgary with RB, her mother and brother. She has a university degree in nursing. Since January 2017, she has been supervisor of a disability resource centre and performs medical assessments.

[46] CB first met RB when she was about ten years old. Her mother was dating RB’s brother at that time. CB started dating RB in 2005 when she was eighteen years old and they moved in together six months later. Before she was with RB, he led a criminal lifestyle. This was not something she ever went through because her family was not into that lifestyle. CB and RB initially resided in Ottawa and then moved to Kingston for her to attend Queen’s University. They moved to Edmonton in 2008 for a fresh start. RB had potential even though he had a criminal record. He worked in carpentry. They moved to Calgary in 2016.

[47] When they lived in Ottawa and Kingston, RB’s son, DB, lived with them. DB saw Mr. Guindon on weekends, and they drove him from Kingston to Ottawa so that he could visit Mr. Guindon. When DB returned from his visits with Mr. Guindon, RB always questioned his son about what they did together, how he felt and if they did anything out of the ordinary.

[48] CB was involved in initiating RB’s claim to the Board. At that time, he had not disclosed to her that he had been sexually assaulted by Mr. Guindon. She thought that the Guindon residence was the best home that RB had been in. She helped him prepare an absurd amount of paperwork. They prepared the documents in the following manner: RB sat close to her and walked CB through his version of events. She asked him questions. She typed out the documents because RB did not know how to use a computer, she was better at writing, and he had a hard time writing coherent sentences when he was agitated or angry. At this time, they spoke in French, she wrote in English, and then she reread the paragraphs to him to ensure what she wrote was what he wanted to say. Since they received the Board documents in English and the lawyers spoke English, all of RB’s documents were in English. RB is not computer literate. He only knows how make calls on his cellular phone, answer calls, and send texts. He does not delete his texts because he does not know how to start a new text message from his list of contacts; this allows him to just respond back to someone. RB did not even have an email account in 2016. He has only opened one more recently. CB has lost a lot of her French writing skills, especially since they moved out west, and it is easier for her to write in English. Although they speak French at home and at work, she only writes emails and texts in English.

[49] CB typed all correspondence for RB and did so in the same fashion as for the Board application.

[50] The application to the Board was not about the money. CB and RB are not rich, but they are “okay.” They have money in their bank account.

[51] SB is even more computer illiterate than RB. She never went to college and is an “old-school mom”.

[52] RB always told CB that he had a secret that he would tell her one day. She kept asking him when he was going to tell her. One day, she asked him in the Superstore. He told her that he had been molested by Mr. Guindon. CB dropped their basket of groceries. They both started crying and left the Superstore. CB was shocked and surprised by this news. She thought this was the best home RB had lived in for years. They remained silent on their way home. That evening, she made steaks for dinner, but RB did not eat. They normally walked the dog but did not do so that night. RB was worried that CB would leave him; he told her he was not gay. She responded that she would not leave him and that she loved him. They had ongoing conversations about this for weeks. CB did not want to push RB to tell her everything at once. They were emotional times.

[53] RB does not believe in therapy. He told her that he has locked all of it up for so many years that he does not want to talk about it.

[54] RB wanted a letter of apology from Mr. Guindon to allow him to have closure. RB did not want to go the criminal route; he had been in jail and knew what it was like there. RB loved Dorothy Guindon and did not want to impact her because of her age. CB did not like the idea of a letter of apology. She told him that Mr. Guindon should be charged criminally. She said sexual assault was not something that should be brushed off and it was not a mistake. RB started to cry, and she told him that she would support any decision he made. CB and RB talked about recording a conversation. She showed RB how to record and they practiced a few times.

[55] Sometime after work in January 2017, she went to her mother’s home because RB was there. When she arrived, RB was very happy and told her he had recorded his conversation with Mr. Guindon. SB’s face was blank. She told CB she had heard the conversation and then she started bawling. CB was shocked because they had recorded Mr. Guindon’s confession. Her first reaction was not to listen to it but rather bring it directly to the police station. RB kept telling CB to listen to it. She pushed the video button and there was nothing there. She told him that nothing had been recorded. RB did not believe her, so she did it again. He sat down in silence, blamed himself for being illiterate in technology, no longer listened and swore.

[56] After the missed recording, Nancy Guindon called RB’s cellular phone. CB and RB were in the living room. He did not want to answer. Mr. Guindon’s phone number had called multiple times and RB did not answer. CB ended up answering. Nancy Guindon asked to speak to RB, and CB told her that she had to speak to her instead. Nancy Guindon asked her if she had received the letter and she responded that she had not. Nancy Guindon told CB that she would resend another letter to her. Nancy Guindon asked if RB was going to pursue criminal charges, and CB responded that if it was up to her, they would have already done so but it was RB’s decision. Nancy Guindon told her “the past is the past” and that got CB’s blood boiling. CB did not blame Nancy Guindon because she knew where she was coming from. CB asked her if she would say “the past is the past” if it were her grandchildren. Nancy Guindon responded that she would not. CB told Nancy Guindon that, clearly, she did not know all the details of what had happened to RB and Mr. Guindon owed it to her to tell her the whole truth. The call lasted approximately four to five minutes. She and Nancy Guindon were both calm and were trying to be advocates for their husbands. The call ended. CB received the letter via email to her address. An email from a guerilla account dated February 7, 2017 at 1:57 a.m. was received in her junk folder. She found this email after she and RB went through her junk folder, but she does not recall how long afterwards. The sequence of emails is as follows:

• 2017-02-07 @ 1:57 a.m. email from guerrillamail.com to CB – apology email in French

• 2017-02-09 @ 7:35 p.m. email to CB from guerrillamail.com – “[RB], Did you get the email letter? Email me with a ‘YES’ or ‘NO’ to: sorry@rootfest.net.”

• 2017-02-09 @ 8:37 p.m. email from CB to guerrilamail.com – “Nancy, Have Denis call me tonight at 6-7pm at [#]”

• 2017-02-10 @5:58 p.m. email from sorry@re-gister.com to CB – duplicate apology email in French

• 2017-02-11 @ 2:17 a.m. email from CB to sorry@re-gister.com – RB’s email response to Mr. Guindon

[57] CB had never heard of guerilla emails before and she absolutely did not send the apology email to herself. If she had, she would have provided all the details. The day after her conversation with Nancy Guindon, CB received the email from sorry@re-gister.com. CB has never used this service. This email contained the same information as the apology email dated February 7, 2017. She and RB read the email together. RB was very upset because Mr. Guindon had not provided him with a real apology letter, and it did not come from the heart. Mr. Guindon did not go into details. It was a slap in the face for RB. CB and RB decided to respond to Mr. Guindon’s email. RB wanted Mr. Guindon to know that his letter was a joke to him and did not provide him with any closure; it just made him angry.

[58] CB later forwarded all the emails she had received to the police for them to find out where the emails originated. She created a computer file folder to store all of RB’s information.

[59] RB decided to go to the police the same day he was in Ottawa for the Board hearing. RB called CB, who had remained in Calgary, and told her that he was at the police station; he needed a statement and required her help. At that time, she was not aware of the Board decision. They stayed on the phone a long time while RB was speaking, and she typed his statement, but she was in a rush. She emailed the statement to RB’s sister who lives in Ottawa.

[60] Afterwards, they received the decision from the Board. A portion of the compensation was for therapy. She had called counsellors to find out about the costs for therapy. At that time, RB did not have benefits and her benefits did not cover the entire cost of the sessions.

[61] After the initial report to the Ottawa Police Service, CB went to the Calgary police station with RB to meet with Detective Chartrand. RB did not want to go. He was nervous and did not speak much. Normally they stop at Tim Horton’s, but they did not do so that day because he was really anxious. They arrived forty-five minutes early.

Evidence of GB

[62] GB is currently 53 years old and lives in Ottawa. GB is RB’s older brother by eleven months. His first language is French, but he also speaks English. He completed grade ten. GB has been on a disability pension for the past 10 years. When he was six or seven years old, GB and RB were placed in foster care. Before arriving at the Guindon residence, they resided at two other foster homes. GB was eight or nine years old when they moved in with the Guindon family. He was fourteen years old when he left them and returned to his mother’s care.

[63] When they moved into Guigues, they resided with Wilfred Guindon, Dorothy Guindon and their two sons, Mr. Guindon and Paul Guindon. GB identified Mr. Guindon in the courtroom. GB described the layout of the house. There was a La-Z-Boy in the living room on the main floor. He slept in a bedroom with RB and they shared a double bed. Mr. Guindon had to walk through their bedroom to get to his own. Mr. Guindon’s bedroom door was black and there were a few steps that led to his bedroom. His bedroom was in a sort of attic. Mr. Guindon’s bedroom had a bed on the left side, an end table beside the bed, a corduroy chair with a footstool facing the television and, on the right-hand side, a wall unit with a television that was filled with records. GB did not go often into Mr. Guindon’s bedroom because he was not allowed to go in there. RB, however, entered Mr. Guindon’s room many times. GB went upstairs and he sat on the steps in front of Mr. Guindon’s bedroom door to talk to RB who was in the bedroom. GB also saw RB and Mr. Guindon together in the latter’s bedroom. RB sat on Mr. Guindon’s lap on the chair and they watched television. When Mr. Guindon arrived home, he frequently changed into his red shorts that had white stripes.

[64] Wilfred Guindon disciplined GB and RB with a ruler, fly swatter and slippers, but never with his hands. Mr. Guindon tried to protect RB from Wilfred Guindon and brought him upstairs to his bedroom. Mr. Guindon pampered RB and would get him out of punishment. Mr. Guindon and RB listened to music, and GB could hear it from the main floor. GB stayed in the living room with Wilfred Guindon.

[65] Dorothy Guindon went to bingo in the evenings and did some shopping on Rideau Street. Wilfred Guindon smoked and stayed at home to watch MAS*H. He used to hide vodka or gin (since it was clear) inside of the couch in the living room. GB did not know if Wilfred Guindon worked.

[66] GB never saw Dorothy Guindon or Wilfred Guindon upstairs, but they must have changed his and RB’s sheets.

[67] GB had an “okay” relationship with Mr. Guindon at that time; they had just moved into the house and they were happy. Mr. Guindon and RB were very close. While GB’s other siblings were with other foster families, he and RB remained together in foster care.

[68] Occasionally, Mr. Guindon brought GB and RB to Record Runner on Rideau Street, Baskin Robbins in the mall, car shows and outside to play baseball. RB went out all the time with just Mr. Guindon. This made GB feel lonely. Initially, GB thought that he and RB went to Disney World with Mr. Guindon. However, after further thought, this was incorrect. Mr. Guindon brought back Mickey Mouse hats for he and RB from his trip. He also recalls Mr. Guindon buying RB gray crocodile or snakeskin cowboy boots. He did not get any boots. When RB was with Mr. Guindon, GB either played outside or watched television with Wilfred Guindon.

[69] Mr. Guindon took two nude photographs of GB and RB together in the bathtub with a Polaroid camera that had a big red button. He took one of them sitting in the bathtub and one of them standing. This occurred probably the same year they arrived at the Guindon residence. Mr. Guindon also had a Nikon camera with many lenses.

[70] Within six months to a year after Mr. Guindon took the nude photographs of him and RB together in the bathtub, Mr. Guindon had a little beige lock box that was approximately six inches by one foot wide with a key. It looked like a safe and was located under the headboard of his bed. There was a chain on the left side when the box was opened. It also contained a compartment to hold change and there was some change in it. RB dragged out the lock box to the door where GB was sitting and opened it. The photographs of them in the bathtub were in the lock box and there was also a photograph of Mr. Guindon and RB both standing together nude. It was a head to toe shot, with RB was standing on the right and Mr. Guindon standing on the left. Mr. Guindon was full of hair in his pubic area and was circumcised. RB did not have any pubic hair. On the photograph, RB and Mr. Guindon were standing in front of the wall unit full of records and one quarter of the television was visible on the right-hand side. He and RB laughed when they looked at the photographs because they were children. RB then returned the lock box under the bed.

[71] They moved to Murray with Wilfred Guindon, Dorothy Guindon and Mr. Guindon. After this move, GB’s relationship with RB changed. RB was always in the house and rarely went out. GB was often outside. RB looked at GB from the balcony and wanted to go outside. One time, Mr. Guindon was up on the balcony with RB and Mr. Guindon spit onto GB’s forehead.

[72] Not very long after they arrived at Murray, there was an incident with Mr. Guindon that led to GB leaving the Guindon residence and returning to live with his mother. GB told Mr. Guindon that he was going to tell his half brother that Wilfred Guindon kept hitting him and RB. When GB was putting on his shoes in the entrance of the house, Mr. Guindon grabbed him by the neck. RB was standing right behind Mr. Guindon by the sliding doors.

[73] GB has a criminal record.

[74] After GB left the Guindon residence, he saw Mr. Guindon one or two times with RB.

[75] GB filed an application with the Board and received an award. He did not make any allegations against Mr. Guindon. GB’s younger brother, his sister and RB filed applications with the Board. He told RB about the Board.

[76] GB attended RB’s Board hearing in order to support him and he also testified. He was an excluded witness outside of the room during the hearing. When RB came out of the hearing, RB advised GB that he was told to report Mr. Guindon to the police. RB told him that he had been molested by Mr. Guindon and showed him a paper that he read later that night. GB’s heart almost stopped because was so surprised. RB provided him some details. RB told him that he pitied Mr. Guindon and that he had had two heart attacks. RB did not want to press criminal charges against Mr. Guindon. GB told RB that he had to do so, and they went to the police station. When they arrived, RB was nervous, scared and sad.

Evidence of Mr. Guindon

[77] Mr. Guindon is currently 68 years old. He has resided in Ottawa his entire life. His first language is French, but he speaks and writes in both French and English. He has been retired from the City of Ottawa since 2006 where he worked for thirty-two years. Mr. Guindon worked Monday to Friday from 9:00 a.m. to 5:00 p.m. and was on call every fifth weekend. He first met Nancy Guindon in 1977 when she began working for the City. She divorced her first husband in 1981. They started dating in around 1982 and they were married in 1990 but have been living together since 1988. Nancy Guindon has one daughter. Nancy Guindon is an Anglophone although she has a good understanding of French. They speak English at home.

[78] Mr. Guindon’s parents were foster parents to at least twenty children who ranged from three to fifteen years old. He was three years old when his parents took in their first foster child. His brother, Paul Guindon, was born in 1957. From 1954 to 1968, his parents constantly had foster children and then decided to take a break. They did not have any other foster children until RB and GB arrived in January 1977. His parents talked to him and Paul Guindon before taking them in. They were not asked to raise the boys. Mr. Guindon was twenty-six years old at the time. The Guindon family moved onto Guigues shortly before RB and GB arrived. RB and GB were always together; they were like twins. They were never separated and did not play with different friends. RB was more outgoing, and GB was very quiet. When the boys were in school, they went to bed at 9:00 p.m. and between 9:00–10:00 p.m. on weekends if they were watching television. They put themselves to bed. The boys bathed regularly, but not every day.

[79] Mr. Guindon did not take photographs of the boys in the bathtub. He owned a 35 mm Nikon camera but never owned a Polaroid camera. Mr. Guindon never kept any photographs of the boys.

[80] Mr. Guindon brought back Mickey Mouse ears for both RB and GB from his trip to Florida. He took them out to play baseball, for a cone or burgers and to visit Paul Guindon. He occasionally bought the boys gifts for Christmas and birthdays. In October 1986, he went to Texas with his wife and told RB that he would buy himself boots. RB asked him to bring him back a pair and promised to pay him back. Mr. Guindon bought boots for RB.

[81] Mr. Guindon never took the boys to a car show or to Record Runner. He did not take RB out separately from GB. He never intentionally excluded GB. He brought the boys on a day trip to Granby Zoo in 1981 or 1982. He also rented a cottage with Paul Guindon, his wife and son at Bouchette and took both boys with them. He also took RB to Wonderland in Toronto and to Marineland in Niagara Falls with Paul Guindon, his wife and son. In Bouchette, Paul Guindon’s family slept in one bedroom, RB and GB slept in bunk beds in one room and Mr. Guindon slept in the middle room. In Toronto and Niagara Falls, they rented just one room at a hotel to save money. Paul Guindon and his wife slept in one bed, RB and their son slept on the other bed and Mr. Guindon slept on the pullout. Mr. Guindon never stayed with RB in a room that had a coin-operated bed. When they travelled, Mr. Guindon assumed the parental role over RB and GB.

[82] Mr. Guindon’s father was strict and big on discipline. He did not physically discipline anyone but he had a big voice. He disciplined him and his brother the same way he disciplined RB and GB. He used to throw a slipper at them when they talked back or run after them and whack them on the butt with his slipper.

[83] Mr. Guindon’s father worked as a television and stereo repairman and later lost his job when the owner closed his business after they moved to Guigues. Wilfred Guindon had difficulty finding work afterwards. His father did not have hobbies and spent the evening watching television. Little by little, Wilfred Guindon’s drinking increased and got worse at Murray. His mother was a stay-at-home mother and kept the house clean, made meals and did laundry. Dorothy Guindon had hobbies like sewing, knitting, reading and at one point shortly after RB and GB arrived, she started going to the bingo with a friend. At first, she went one time per week then later she went two to three times per week. On Sundays, Wilfred Guindon cooked the family dinner. His father died in February 1986 and his mother died in June 2018.

[84] In the 1970s, Mr. Guindon’s hobbies included cycling, listening to music, reading, going out with friends and photography. He played team sports and coached different sports teams in the late 1970s. RB and GB used to go to the rink with Mr. Guindon when he coached hockey. In 1977, he was out of the house at least four times per week. Mr. Guindon’s hobbies changed somewhat when he started visiting Nancy Guindon more frequently.

[85] Mr. Guindon did not have anything that could pass as a safe. He currently has a tiny lock box in which he keeps his coins. He also did not have a jar with money in it.

[86] At Guigues, his parents leased the house and he and Paul Guindon paid rent. In August 1978, Paul Guindon left the house when he got married.

[87] Mr. Guindon described the layouts and drew diagrams of the homes at Guigues, Murray, and the Co-op. He described that before RB and GB moved in, his parents had a bedroom upstairs. When RB and GB moved in, his parents moved into a bedroom downstairs in the front of the house. There was a sofa, chair and television in the living room. The kitchen was large. Mr. Guindon’s bedroom consisted of a bed, a desk between the two front windows, a little night table, a television on a stand, a stereo and a little cabinet that housed his record albums. He did not have a wall unit. Mr. Guindon started his record collection in 1974 and he bought one or two records every one to two weeks. The door to his bedroom did not close properly. He could not get into any other room directly from his bedroom. RB and GB were given Paul Guindon’s bedroom when he moved out. They originally had a double bed and then had two twin beds when they moved into Paul Guindon’s bedroom. RB and GB never had bunk beds. There were a couple of steps at the end of Paul Guindon’s bedroom.

[88] Mr. Guindon’s bedroom at Guigues was off limits when he was not there. If he was listening to loud music, the door was closed, and people knocked to enter. At times, his brother, RB and GB went in together to watch television, although GB mostly watched television downstairs. He never had a rule that GB could not go into his bedroom when RB was in there.

[89] RB did not sit on Mr. Guindon’s lap because, Mr. Guindon testified, “I don’t think that my parents would have allowed it”.

[90] RB never had friends sleep over. Mr. Guindon would never buy pizza at 9:30–10:00 p.m. It was only for dinner.

[91] After they left Murray in 1982, they moved into a house at the Co-op. There were no locks on the doors at the Co-op. Mr. Guindon was seeing Nancy Guindon more; almost every night of the week.

[92] When RB was seventeen years old, he moved out of the Guindon residence with the permission of the Children’s Aid Society. Mr. Guindon moved out of his family’s residence and in with Nancy Guindon in 1988. After he moved out, RB called Mr. Guindon and Nancy Guindon in order to bail him out of jail in 1988. Mr. Guindon acted as RB’s surety and Nancy Guindon got RB a summer job. They visited him at every detention centre he resided at. In the 1990s, Mr. Guindon saw RB less because his son, DB, was born. He saw RB at two Christmas dinners and at his mother’s 80th birthday party. When RB moved out west, the two of them were on good terms. The next time he dealt with RB was after he received the notice from the Board, and they had the phone conversation. Mr. Guindon was shocked when he received the notice. He was upset, confused and pissed off. Originally, Mr. Guindon did not file a response with the Board. However, after the phone call with RB, he sent a letter to the Board in February and he denied the allegations. He did nothing else because of the phone call he had with RB.

[93] The day of RB’s phone call, he and Nancy Guindon were in the living room watching television. Nancy Guindon picked up the call. Mr. Guindon heard her say “Fuck off” and she hung up. He asked her why she hung up because he wanted to talk to RB. Mr. Guindon called RB back. He put the call on speaker phone and told Nancy Guindon not to speak so that she could hear what was being said. RB told him that he did not want to speak to Nancy Guindon again and that he was lucky that he had called him back. Mr. Guindon took this as a threat. He asked RB why he was doing this, and RB responded that he should not worry, and that Mr. Guindon would not go to prison; he was only trying to get money from the Board. RB knew someone else who did the same thing. RB suggested that Mr. Guindon should not attend the Board hearing. During the phone conversation, Mr. Guindon was pacing and yelling. The conversation was mostly in French and the call lasted about eight minutes. He does not recall crying during the call, and he did not apologize to RB. Mr. Guindon then blocked RB’s phone number. When RB tried to call from another number with the same area code, he blocked that number too.

[94] Mr. Guindon only met CB a few times, one of which was his mother’s 80th birthday party in 2006. He never had CB’s email address or spoke to her on the phone. He only saw SB one or two times and did not talk to her. He never spoke to SB on the phone.

[95] Mr. Guindon and Nancy Guindon were involved in DB’s life. They saw him a couple of times with RB. When DB was nine years old in 2001, he resided with his mother. RB called Mr. Guindon and asked him for a favour. Since he was moving to British Columbia and would not be able to visit his son on the weekends, he asked Mr. Guindon to do some activities with DB on Saturdays and he agreed. Mr. Guindon saw DB almost every week and this continued until 2005.

[96] DB called Mr. Guindon and Nancy Guindon and told them he had been removed from his mother’s care and had been placed in a foster home. He asked Mr. Guindon if he could move in with him and Nancy Guindon. Mr. Guindon and Nancy Guindon called the Children’s Aid Society, explained the situation to them, a home inspection was done and then the next day DB moved in with them. DB remained with them for a period of eleven months until RB returned to Ottawa. DB moved in with his father. Mr. Guindon continued to see DB on Saturdays until RB and CB moved to Kingston. The last time he saw DB was after DB moved to Toronto for a job. He has since spoken to DB a few times on the phone.

[97] Mr. Guindon denies spitting on GB, touching RB’s friend during a sleepover, sucking RB’s penis or having RB suck his penis, anally penetrating RB, doing the “69” position with RB, doing anything sexual with RB, writing the apology email and creating either the guerilla or re-gister.com email address. Mr. Guindon only has one email account, which is with Yahoo.

[98] Mr. Guindon knows that RB is not familiar with technology.

[99] In the past thirty years, Mr. Guindon and Nancy Guindon have never left the house separately. If they go out, they are always together.

[100] After the preliminary inquiry but before the trial, Mr. Guindon discussed the layout of Guigues with Paul Guindon even though he knew that it was possible his brother would testify at his trial. Mr. Guindon testified that he did not recall the order to exclude witnesses and that he only understood what that meant at this trial. He wanted to show the layout to Paul Guindon to see if he was familiar with it and remembered it. In addition, Mr. Guindon also spoke to Paul Guindon about the trips he and Paul Guindon took with RB because they were relevant to the time period of RB’s allegations against Mr. Guindon. He violated the exclusion order and he did not think about it when he had this discussion with his brother. He knew at some point that he was not supposed to talk to other witnesses.

Evidence of Nancy Guindon

[101] Nancy Guindon first met Mr. Guindon when she was working at the City of Ottawa in September 1977. Prior to 1981, she was married to someone else. She has one daughter. After her divorce in 1981, Nancy Guindon and Mr. Guindon saw each 2-3 times per week, but they were not living together. She only went to the Guindon residence at the Co-op. She never went into Mr. Guindon’s bedroom.

[102] Nancy Guindon saw Mr. Guindon draw the three layouts of the houses where the Guindons resided. Mr. Guindon told her he had shown Paul Guindon the layout of the Guigues house.

[103] She was seated outside of the courtroom during the preliminary inquiry because she knew that she may have to be a witness at this trial. She knew that she and Mr. Guindon could not talk about the evidence. In addition, Mr. Guindon was aware of this rule and it was not something that he would have forgotten. Nancy Guindon was aware that Mr. Guindon and Paul Guindon discussed the trips they took in the 1970s and 1980s after the charges were laid.

[104] Every time RB was in prison, Nancy Guindon and Mr. Guindon went to visit him. RB was in jail in Hull and Nancy Guindon met with prison officials and gave him a forty-hour per week job.

[105] Before RB moved out west, he asked her and Mr. Guindon to keep an eye on his son DB. She and Mr. Guindon took in DB, when he was removed from his mother’s care. DB had called to tell them he was in foster care and asked to go live with them. They had him for ten or eleven months. Afterwards, DB moved in with RB.

[106] Nancy Guindon only spoke to CB a couple of times. CB called them to ask where Dorothy Guindon resided because RB was going to Ottawa and wanted to visit her. Nancy Guindon did not know CB’s email address.

[107] In January 2017, they received the notice from the Board. They were both upset. She wanted to fight RB’s allegations against her husband. She knew that they could attend the Board hearing. She and Mr. Guindon had several discussions about what to do. Although they did not know what the Board was, they did not Google it or look at the Board website. RB called a few days later with an unknown number. She answered and told him to “Fuck off” and then hung up because what he had done angered her. Mr. Guindon wanted to talk to RB, so he called him back. Mr. Guindon put the call on speaker phone and told her to keep her mouth shut. RB first said that he never wanted to speak to Nancy Guindon again. RB said that he was doing it for the money and was not trying to get them into trouble. She heard RB ask for a letter admitting what had happened. RB referred to a closure letter. She also heard them talk about RB having photographs of him and Mr. Guindon in sexual poses, naked, but her husband knew they did not exist. RB also told Mr. Guindon not to go to the hearing. Nancy Guindon did not believe that they were being threatened by RB. RB was defrauding the Board. The call lasted for ten to fifteen minutes. Mr. Guindon was angry and yelling at RB. They decided to block RB’s phone number. Someone else called back with the same area code and they also blocked that number. After the call, they did nothing unusual and she did not go outside of the house. Nancy Guindon and Mr. Guindon wrote a letter to the Board and did not add anything about RB recently filing a claim for the money or any attempt to defraud the Board. If Mr. Guindon wanted to place another phone call that day, he would not be able to do so without her knowing because they were always together. They do everything together; if she goes out, Mr. Guindon goes with her and vice versa. This happens all the time. The only time this did not happen was when Mr. Guindon was ill: he had a heart attack around 2006-2007 and prostate surgery.

[108] Nancy Guindon knows how to set up an email account. However, Mr. Guindon is the technical person in their household. He knows how to solve problems when she has computer troubles. She acknowledged that Mr. Guindon had the capacity to write the apology letter in French. She did not write the letter. She never received any emails from CB. She also did not speak to CB when RB made his claim to the Board.

[109] Nancy Guindon would have stood by her husband even if RB’s allegations were true.

Evidence of Paul Guindon

[110] Paul Guindon is currently 62 years old. He started working in 1975 at the age of eighteen. They moved to Guigues in 1976. At that time, he worked for the government from 9:00 a.m. to 5:00 p.m., Monday–Friday. He spent most time with Johanne, his future wife, after dinner on most days. They were often either in the kitchen, living room, his bedroom or the front porch.

[111] His mother was a house wife and his father was the breadwinner until he lost his job. Afterwards, his drinking increased, and it became a problem. With regards to discipline, his father was more of a yeller, but, at times, he threw his slipper at them to get their attention.

[112] His mother had some hobbies and she started going to bingo with her friend when Paul Guindon was nineteen years old. She went to bingo 1–2 times per week in the evenings. His father did not have any hobbies; he watched television.

[113] Mr. Guindon had a rule that no one was allowed to go into his bedroom. They could only go in when he was there.

[114] RB and GB were the last foster kids that his parents took into their household. They arrived in mid-1976. Paul Guindon had a good relationship with the boys. He lived with them for approximately a year and a half before he married and moved out. The boys were always together when Paul Guindon lived at Guigues. The boys normally went to bed at 9:00 p.m. He went to bed at 11:00 p.m. They got up between 7:00–7:30 a.m. His father was an early riser and his mother got up at the same time as the children.

[115] There was a couch and a chair facing the television in the living room. It is not possible that chair moved over time because of the setup of the living room. Furniture could not be moved around.

[116] When he lived at Guigues, he could not access Mr. Guindon’s bedroom from his own. Mr. Guindon’s bedroom had a bed, television, stereo, night table, desk, chair and shelf where he kept his records. Mr. Guindon had built an extensive record collection over the years. When Mr. Guindon listened to loud music, it was possible that he shut his bedroom door because, otherwise, his father would have yelled. He recalls that Mr. Guindon closed the door of his bedroom.

[117] After Paul Guindon left Guigues, his parents moved back to a bedroom upstairs and RB and GB took over his bedroom. The boys slept together in either a double or queen bed. Prior to that, RB and GB slept in a big open area upstairs. There was no door on their area. The distance between the top of the stairs and Mr. Guindon’s bedroom door was not considerable. The doors at Guigues did not have locks but the doorknobs may have had push locks, including Mr. Guindon’s bedroom door, which was not black.

[118] Mr. Guindon also worked during this time. Mr. Guindon enjoyed the Maple Leafs, listened to music and took a photography course at Algonquin College. Mr. Guindon had a Nikon camera that Paul Guindon later inherited. Paul Guindon did not see a Polaroid camera when he was living at Guigues. He never saw anything that looked like a safe or lockbox.

[119] Paul Guindon did not have responsibility for RB and GB, but he played with them. He, Johanne, Mr. Guindon and the boys went biking together. At times, he and Johanne brought RB and GB to restaurants. GB was never excluded. He and Mr. Guindon were more attached to RB because of his personality; he was more outgoing, and GB was slower.

[120] Paul Guindon went on two trips outside of the city with RB and GB. In the Summer of 1981, they rented a cottage in Bouchette. The cottage had three bedrooms: his wife, 2 year old son and he slept in one room; RB and GB slept in bunk beds in another bedroom; and Mr. Guindon was in the last bedroom. When his son was four years old, Paul Guindon, his wife, Mr. Guindon and RB went to Wonderland and Marineland. They rented one hotel room for all of them. During their trips, Mr. Guindon assumed the parental role over RB and GB. It is possible that Mr. Guindon took the boys on trips that Paul Guindon was not aware of. He recently talked about the details with Mr. Guindon of the trips they took with RB and GB. Mr. Guindon asked him about his memories of the trips. They each told one another what they remembered about them. Mr. Guindon confirmed the details with him. Paul Guindon could not recall the conversation even though it took place between 30–60 days prior to the trial. During the discussion, neither of them said that they should not discuss this sort of thing.

[121] A month or two prior to the trial, Mr. Guindon showed Paul Guindon his diagram of the layout of Guigues. At the preliminary inquiry, Paul Guindon was aware that he might be a witness and that they should not discuss the evidence. Mr. Guindon was also aware of this rule. They discussed what the diagram was for and he assumed it was for this trial. Mr. Guindon drew the layout of Guigues in order to show how it was structured for the trial and this was relevant to his case. Paul Guindon agreed with the layout. At the time Mr. Guindon showed him the layout, Paul Guindon knew it was possible that he would testify at this trial. He also knew there would be questions asked about Guigues. Paul Guindon agreed at that time he had not thought about the layout of Guigues for decades.

[122] After RB moved out of the Guindon residence, Paul Guindon seldom saw him. He recalls seeing RB at his mother’s 80th birthday party in 2006.

Position of the Parties

The Crown

[123] The Crown argues RB and the other Crown witnesses were both credible and reliable. They gave their evidence in a straightforward manner. The Crown submits that RB had issues with the timing of the incidents and at times with the specific address of where the incidents occurred with Mr. Guindon. However, this information is not material to the charges in question. The Crown takes the position that the Defence witnesses were not credible and reliable, especially Mr. Guindon. The Crown submits that it has met its burden and proven beyond a reasonable doubt the charges listed against Mr. Guindon in the indictment.

The Defence

[124] The Defence submits that Mr. Guindon and the other Defence witnesses were credible and reliable. It is the Defence’s position that the Crown’s witnesses were not credible or reliable and there were many inconsistencies in their evidence. Consequently, the Crown has not met its burden and proven its case beyond a reasonable doubt. Mr. Guindon should be acquitted of all charges.

Analysis

[125] In our court system, an accused person is presumed innocent until proven guilty. The Crown bears the burden to prove the criminal offence charged beyond a reasonable doubt. If a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.

[126] I begin by citing the relevant sections of the Code that were in effect during the dates listed in the indictment. Regarding count 1 of indictment, indecent assault on a male (May 1, 1974 – January 3, 1983), section 156 of the Code provided as follows: “Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years”. This section came into force on July 15, 1971 and was repealed on January 4, 1983.

[127] As for count 2 of the indictment, sexual assault (January 4, 1983 – December 21, 1983), s. 246.1 of the Code was in force from January 4, 1983 to December 31, 1987. It provided:

246.1(1) Every one who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for ten years; or

(b) an offence punishable on summary conviction.

(2) Where an accused is charged with an offence under subsection (1) or section 246.2 or 246.3 in respect of a person under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused is less than three years older than the complainant.

[128] Lastly, regarding count 3, buggery (May 1, 1974 – December 21, 1983), s. 155 of the Code applied for the period from July 15, 1971 to December 31, 1987. This section provided as follows: “Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years”.

[129] I turn to a review of the applicable case law in this matter. R. v. Leroux, 2013 SKQB 395, 432 Sask. R. 86, para. 71, is very helpful by providing the elements of the offence of indecent assault on a male which are as follows:

a) the accused is the person who committed the offence of indecent assault;

b) the offence of indecent assault occurred at the time and place set out in the indictment;

c) the accused applied force to the complainant directly or indirectly;

d) the accused intentionally applied force to the complainant in circumstances which had the quality of indecency;

e) the complainant was under the age of 14 years at the time of the alleged offence or that the complainant was the age of 14 years or older and did not consent to the application of force or did not consent validly due to the accused inducing the complainant to engage in the activity by abusing a position of trust, power, or authority; and

f) the complainant is a male person.

[130] In R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, paras. 99-100, Pepall J.A. concurring, confirmed that buggery is anal intercourse.

[131] In R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, Benotto J.A. discussed the distinction between indecent assault and sexual assault. She noted that indecent assault was the predecessor to sexual assault. Benotto J.A. stated at paras. 71-72:

While it is clear that the concept of a sexual assault differs from that of the former indecent assault, it is nevertheless equally clear that the terms overlap in many respects and sexual assault in many cases will involve the same sort of conduct that formerly would have justified a conviction for an indecent assault. The definitional approach to indecent assault, also an offence not defined in the Criminal Code, therefore offers a guide in our approach to the new offence, as recognized by Laycraft C.J.A. After many years of dealing with the concept of indecent assault, the courts developed the definition, “an assault in circumstances of indecency”. This, of course, was an imprecise definition but everyone knew what an indecent assault was. The law in that respect was reasonably clear and there was little difficulty with its enforcement. In my view then, a similar approach may be adopted in formulating a definition of sexual assault.

Indecent assault and sexual assault are assaults committed in circumstances of an indecent or sexual nature such that the sexual integrity of the victim is violated. They are general intent offences that do not require proof of sexual purpose or sexual gratification on the part of the accused. To establish sexual assault, the Crown must prove beyond a reasonable doubt that the accused intentionally touched the complainant without consent in circumstances of a sexual nature. In contrast to sexual purpose, the test to be applied in determining whether the conduct is of a sexual nature is objective.

[132] The Defence referred me to a series of cases: R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.); R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469; R. v. McGrath, [2000] O.J. No. 5735 (S.C.); R. v. Plews, 2010 ONSC 5653; R. v. Stymiest (1993), 1993 CanLII 14681 (BC CA), 79 C.C.C. (3d) 408 (B.C.C.A.); R. v. M.G. (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A); R. v. B. (R.W.), 24 B.C.A.C. 1 (C.A.); and R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

[133] The Crown referred me to the following cases: R. v. A.R.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634; R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419; R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.); R. v. Hull, 2006 CanLII 26572 (Ont. C.A.); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Sanichar, 2013 SCC 4, [2013] 1. S.C.R. 54; R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307; R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5; R. v. T.H., 2016 ONCA 439; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122; R. v. R.C., 2020 ONCA 159; R. v. Stuckless; and R. v. MacIntosh, 2011 NSSC 340.

[134] With regards to evidence of a witness, the court can accept all, a part, or none of a witness’ evidence. Inconsistencies do not automatically lead the court to dismiss the witness’ evidence. Even if there are inconsistencies in the evidence, the court can accept the witness’ evidence beyond all reasonable doubt.

[135] Credibility and reliability are distinct. In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 205, Doherty J.A. clarified the concept:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

[136] The Court of Appeal has determined that the reliability of the evidence is paramount. In R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 173-174, the court confirmed that the assessment of credibility based on demeanour alone is insufficient in a case where there are many significant inconsistencies.

[137] Moreover, the case law confirms that while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of the evidence provided by a witness (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66). In addition, demeanour alone is insufficient to convict where there are significant inconsistencies and conflicting evidence (R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.), at p. 250). The trial judge may use demeanour evidence in conjunction of his/her assessment of the evidence as a whole (Hull, at para. 8, citing R. v. Boyce, 2005 CanLII 36440 (ON CA), [2005] O.J. No. 4313 (C.A.), at para. 3).

[138] In O.M., the Court of Appeal upheld a decision in which the trial judge relied on, in part, the complainant’s tearful demeanour and tone of voice at certain parts of her testimony. In T.H., at para. 4, the Court of Appeal reiterated that testimonial demeanour is a proper consideration when evaluating a witness’ credibility. In O.M., the court stated the following, at para. 34:

It is well-established that testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility: see e.g., R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201 (Ont. C.A.), at para. 112. In this case, the trial judge provided cogent reasons as to why he viewed the demeanour of each witness, at specific points in their testimony, as significant. Moreover, demeanour was only one of many factors considered by him in his assessment of each complainant’s credibility and reliability.

[139] Lastly with regards to demeanour evidence, in R. v. R.D., 2016 ONCA 574, 30 C.R. (7th) 373, at para. 25, the Court of Appeal for Ontario stated that “[d]espite academic and judicial commentary suggesting demeanour evidence is unreliable, under Canadian jurisprudence it remains relevant to the assessment of a witness’s credibility”.

[140] The accused does not have the burden of explaining the complaints against him (S.(W.), at p. 252 C.C.C.). The accused does not have the burden of showing that the complainant had a motive to fabricate evidence (R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 48 and 53). Furthermore, the court must not place too much weight on the complainant’s apparent lack of motive to lie (S. (W.), at pp. 252-253 C.C.C.).

[141] In sexual assault trials, there is no assumption that the complainant is telling the truth (R. v. Nyznik, 2017 ONSC 4392, 40 C.R. (7th) 241, at paras. 15 and 17).

[142] As for the issue of disclosure, the Supreme Court of Canada reviewed the significance of the complainant’s failure to make a timely complaint in R. v. D.(D.), at paras. 63 and 65, Major J. stated as follows:

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).

A trial judge should recognize and so instruct a jury that there is no inviolable rule on 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.

[143] With regards to assessing the credibility of child witnesses, Wilson J. provides us some guidance (R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55):

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[144] In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, the Supreme Court further reviewed the testimony of child witnesses. McLachlin J. (as she was then) stated, at pp. 133-134, as follows:

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.

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to 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. [Emphasis added.]

Assessment of the Evidence

[145] The main issue in this matter is with regards to credibility and reliability. I begin by assessing the witnesses’ evidence, starting with RB’s evidence. RB gave his evidence in a forthright manner. He was not a sophisticated witness. At times, he was emotional and at other times he was combative with counsel during cross-examination. Notwithstanding his combativeness, I find that RB was responsive to questioning and did not try to guess where the questions were going. RB is a francophone and his second language is English. He testified in English. There were language comprehension issues at times, and the assistance of the interpreter was very helpful. An example of this was RB’s conflation of “ejaculate” and “masturbate”. At first, he thought those words meant the same thing. With the assistance of the interpreter, he was able to understand and respond to counsel’s questions about this issue.

[146] RB described how Mr. Guindon used his position as the oldest brother in the Guindon household to sexually assault him over many years. He recounted how Mr. Guindon tried to anally penetrate him. At first, Mr. Guindon encouraged RB to touch him over his clothes and then inside of his pants. He instructed RB how to perform sexual acts and told him that it was normal for two guys to see each other naked and to touch each other. RB described how, at first, he was happy to do something with Mr. Guindon that the latter found thrilling. RB looked up to Mr. Guindon and saw him as a role model. Mr. Guindon bought him things, took him out places and on vacations. Simply put, Mr. Guindon paid special attention to RB. Mr. Guindon told RB if he told anyone about the photographs, he would be put into another foster home. At one point in his early teens, RB realized that his relationship with Mr. Guindon was not normal.

[147] RB’s evidence was corroborated by external evidence. GB’s evidence corroborated RB’s evidence regarding

• the nude photographs taken by Mr. Guindon;

• GB’s exclusion by Mr. Guindon from activities;

• the entrance to Mr. Guindon’s bedroom being through GB and RB’s bedroom;

• Mr. Guindon wore red shorts; and

• RB’s sat on Mr. Guindon’s lap when the two were in Mr. Guindon’s bedroom.

[148] RB’s evidence regarding his phone conversation with Mr. Guindon in which the latter said he regretted having sexually assaulting him and stated that he did not want to lose his wife, was corroborated by SB’s testimony that she overheard this phone conversation between RB and Mr. Guindon. I want to note, however, that I do not rely on propensity-based reasoning as a result of Mr. Guindon allegedly uttering that RB was the “last one” during the phone conversation. I do not rely on this utterance at all.

[149] Nancy Guindon’s evidence about this phone conversation also partially corroborates RB’s evidence about the discussion of the naked/sexual photographs and the closure letter requested by RB.

[150] CB’s testimony corroborates her husband’s evidence regarding the assistance she provided in preparing his correspondence. There is also the apology email which I will delve into afterwards.

[151] The Defence points out internal and external inconsistencies in RB’s evidence. The Defence submits that these inconsistencies should lead this court to find that the sexual assaults by Mr. Guindon as described by RB could not have happened. The crux of the Defence’s attack on RB is with regards to his prior inconsistent statements in which he first denied that he was sexually assaulted by Mr. Guindon at the Board and only mentioned being sexually assaulted by another individual. At the preliminary inquiry, RB was asked whether he had been sexually assaulted by anyone else other than Mr. Guindon. RB responded that he had been physically abused but not sexually abused by anyone else. At the trial, RB explained that at the preliminary inquiry, he was there to talk about his allegations against Mr. Guindon, not about someone else. At that time, he did not want to talk about the other individual because it was not relevant. It must also be recalled CB testified that RB is a very private man. It was difficult for her to obtain details of the sexual abuse he endured. I find that RB provided an appropriate explanation for this inconsistency.

[152] With regards to RB’s application to the Board, RB did not deny being sexually assaulted by Mr. Guindon; Mr. Guindon was not initially named in RB’s application to the Board, but his name was added afterwards. I find there is no evidence that supports the inference that RB’s claim to the Board was in jeopardy of being rejected if he did not name the person who sexually assaulted him. As the claim went through the Board process, RB added his disclosure about Mr. Guindon.

[153] The Defence submits that RB’s evidence was inconsistent with regards to when he burned the photographs, whether the safe had a combination lock or another locking mechanism, and whether there were locks on the bedroom doors. There was an inconsistency regarding the photographs. However, there was none with regards to the locks. Whether the safe had a combination lock or another locking mechanism, RB was consistent that it locked. The Defence also argues that RB was inconsistent in his evidence about whether being on Employment Insurance made him a failure. RB wrote a similar assertion in an email. With regards to the locks on Mr. Guindon’s bedroom door, Paul Guindon testified it was possible that the doorknobs on the bedroom door had push locks and GB testified there was a handle lock on Mr. Guindon’s bedroom door. Consequently, Mr. Guindon’s bedroom door may have had a lock.

[154] The Defence describes RB as someone who was depressed, needed money and did not want to lose his wife. Consequently, he invented his accusations against Mr. Guindon to get money. RB testified that moving forward with his allegations against Mr. Guindon was not financially driven; he wanted to get closure. CB described that they were not rich by any means, but she and her husband had some savings. There is no evidence to support the conclusion that RB believed he needed to go to the police to get money. However, it is likely that RB’s complaint to the Board was motivated by the possibility of obtaining compensation in addition to getting closure. That does not, however, undermine his credibility. Reporting something to the Board in and of itself does not take away from his credibility. It may have been the catalyst which galvanized the complaint. Nevertheless, I do not find on the evidence, that the possibility of financial compensation derogates from RB’s credibility in the circumstances of this case.

[155] The Defence further submits that new details arose during RB’s testimony at trial. It may be so, however, I find that RB provided explanations for these new details and I accept his explanations. RB explained that when he first went into the police station, he was hesitant to provide details because of his past experiences with police; he was not comfortable at first discussing all the details. In addition, RB explained that the more he talked about the sexual assaults, the more he provided details. Lastly, RB provided additional details during his testimony at this trial because he was asked more questions and more details were elicited. The questions were more probing at the trial that at his police interview and the preliminary inquiry. An absence of detail is not an inconsistency. The fact that RB cannot recall every detail about when and where the sexual assaults occurred does not impact RG’s credibility or reliability.

[156] The Defence argues that Mr. Guindon lacked the opportunity to sexually assault RB since he worked during the day and spent evenings either at recreational activities or, after 1981, with Nancy Guindon. The opportunities would have been extremely restricted if not improbable. Based on the evidence, I find there was ample opportunity for Mr. Guindon to spend time alone time with RB. In fact, Mr. Guindon and Paul Guindon conceded that Mr. Guindon had the opportunity to spend time alone with RB. The Defence further submits that for Mr. Guindon to sexually assault RB, he would have had to do so in his bedroom with his parents on the same level. While it may be true that the Guindon parents may have been on the same level at times, the evidence shows that Mr. Guindon was upstairs in his bedroom a lot, and not just to sleep. He watched movies, television and listened to music in his bedroom. He normally watched television in his bedroom and not in the living room. Many of the witnesses testified that it was common knowledge that if Mr. Guindon’s bedroom door was closed, a person had to knock before entering. The Defence’s submission that his parents could have barged into his bedroom is not valid.

[157] The Defence raises the issue of the inconsistent evidence between RB, who testified that he and his brother had bunk beds, and GB, who testified that they had a double bed. This is a valid inconsistency; however, it is peripheral in nature.

[158] The Defence attacks RB’s evidence about how often the sexual assaults occurred; where they occurred, either at Guigues, Murray or at the Co-op; RB’s age when they occurred; and when they occurred. The Crown argues that there may have been slight inconsistencies in RB’s evidence but that they relate to the location of the alleged sexual assaults. When RB reviewed his prior statements during his evidence, he made corrections when necessary. For example, with regards to the anal penetration, he corrected himself and testified that it occurred at Murray. I find most of RB’s inconsistencies were with regards to date and location. Perfect recall is not required. RB was a child and young teenager when the sexual assaults occurred. It is understandable that certain details blend together. He was not always able to recount the events with precise details. However, he provided enough detail to describe what occurred between him and Mr. Guindon.

[159] Lastly, the Defence argues that RB was not a credible and reliable witness because he has a criminal record. RB agreed that there were crimes of dishonesty on his criminal record. He explained that after he was sexually assaulted by Mr. Guindon, he did not hang around with good people and turned to a life of crime. After he met his wife, he changed his life around.

[160] While there may be some inconsistencies in RB’s evidence, they are explainable and peripheral in nature and when I review RB’s evidence as a whole, which is corroborated by some external evidence, I accept his evidence. I find him to be a credible and reliable witness.

[161] I turn to a review of SB’s evidence. She was straightforward in giving her evidence. During cross-examination, SB consistently maintained that she did not recall all the details of the day in question when she overheard the phone conversation between RB and Mr. Guindon. However, she was clear that she heard Mr. Guindon apologize for sexually assaulting RB and swore that RB was the “last one”. Mr. Guindon said that his wife would divorce him and if he had to go to prison and that he would kill himself. RB knew that he had had two heart attacks. Lastly, she clearly described the issue of the photographs and their exchange for a letter of apology.

[162] The Defence argues that SB seemed like a well-meaning older woman who was a bit confused at times during her evidence. However, the veneer came away during cross-examination. There were inconsistencies about how many times she and RB left the house: she said one time to the police and two times during the preliminary inquiry. The Defence further submits it was unclear whether one phone call or two phone calls took place between RB and Mr. Guindon, and she testified she did not know about RB’s claim to the Board. However, the evidence shows that the Board package contained a letter of support from her. I find the inconsistencies listed by the Defence are minor issues and do not go to the heart of this trial. SB admitted that her memory about the events was not good, but she clearly recalled the highlights of the discussion between RB and Mr. Guindon. SB was thoroughly cross-examined about the phone conversation that she overheard, and her evidence was unshaken. SB’s evidence is also partially corroborated by RB and CB’s evidence.

[163] The Crown argues that SB was careful when she gave her evidence and, at times, she said that she did not want to make guesses. A review of her evidence supports this position.

[164] When I review SB’s evidence as a whole, I accept her evidence. I find her to be a credible and reliable witness.

[165] As for CB’s evidence, she provided it in a forthright manner. At times she became upset and emotional. During cross-examination, she agreed with counsel when she was mistaken.

[166] The Defence submits that CB was not an impartial witness and she wanted to ensure that Mr. Guindon was punished. Her evidence at trial contained many inconsistencies. While there were some inconsistencies in her evidence, I find they were minor and peripheral in nature. The Defence also attacks CB’s credibility because she refused to speak to Defence counsel prior to the trial. The evidence shows that CB was advised that she had the choice of whether to speak to Defence counsel and she decided not to. I cannot draw an adverse inference because CB exercised her right not to speak to Defence counsel prior to her testimony.

[167] Discrepancies were pointed out to CB between RB’s evidence and some of the contents of, for example, the letter dated September 21, 2016, where she wrote that RB suffered daily abuse from the start and there were multiple penetrations. She responded that RB was not seated next to her when she typed this letter and she based this information on her memory of conversations she had with RB. The Defence also questions why CB did not record her phone conversation with Nancy Guindon. Overall, this is not a relevant consideration.

[168] Lastly, the Defence submits that CB created the apology email. When it was put to her in cross-examination, she vehemently denied doing so, and responded that if she had done so, she would have added all the details of sexual abuse. It is also noteworthy that CB testified she does not work in French out west and only writes her correspondence including texts in English. I accept her evidence that she did not create the apology email.

[169] CB was thoroughly cross-examined, and the majority of her evidence did not change. While there may have been slight inconsistencies in her evidence, overall, her evidence was consistent and partially corroborated by RB and SB’s evidence.

[170] When I review CB’s evidence as a whole, I accept her evidence. I find her to be a credible and reliable witness.

[171] GB was the last witness for the Crown. He provided his evidence in a forthright manner.

[172] The Defence does not highlight many inconsistencies in GB’s evidence. The Defence submits that GB was inconsistent regarding his evidence about seeing the Guindon parents upstairs. During cross-examination, GB agreed that, at Guigues, the house’s only washroom was upstairs. GB explained that he did not recall seeing the Guindon parents in his bedroom, but they probably changed his bed sheets and he probably would have seen them when they went to bed. This is not an inconsistency.

[173] The Defence argues that GB’s evidence did not corroborate any vital aspects of the case and it consisted of peripheral details. I disagree. GB’s evidence corroborated that

• RB spent time in Mr. Guindon’s bedroom alone with him;

• RB regularly sat on Mr. Guindon’s lap;

• Mr. Guindon wore red shorts;

• GB was, at times, excluded;

• photographs were taken by Mr. Guindon of RB and GB, both naked, in the bathtub;

• there was a photograph of RB and Mr. Guindon naked standing side-by-side; and

• there were photographs in the safe in Mr. Guindon’s bedroom.

These are not peripheral details.

[174] When I review GB’s evidence as a whole, I accept his evidence. I find him to be a credible and reliable witness.

[175] I turn to the witnesses called by the Defence. I start by reviewing Mr. Guindon’s evidence. The Crown argues that during direct examination, Mr. Guindon was very absolute. In addition, during cross-examination, Mr. Guindon was often guarded, evasive, and contradicted himself on a number of occasions. He also tried to predict where the Crown’s questions were going, which often led to him being unresponsive to the questions asked. The Crown submits Mr. Guindon sometimes chose to respond to the Crown’s questions by offering unresponsive answers that he thought were relevant. Mr. Guindon also admitted to having discussed his evidence with his brother Paul Guindon prior to the trial. A review of the evidence supports the Crown’s position.

[176] On direct examination, Mr. Guindon was categorical that he never excluded GB when he was with RB, RB never sat on him, GB never went out by himself to play, GB never played with anyone other than RB, his bedroom door was always open when RB was in there, he never ordered pizza at night, he never slept elsewhere than at Murray, and in thirty years of being with his wife, they have never gone outside of their house separately.

[177] Mr. Guindon testified that RB and GB were never apart; there were no times that one was ever out without the other. During cross-examination, Mr. Guindon finally conceded that it was possible that RB and GB were not always together but that it would be rare, and he did not recall it. He also agreed that he spent more time with RB than he did with GB.

[178] RB and GB also both testified that RB sat on Mr. Guindon’s lap. During cross-examination on this issue, Mr. Guindon was very defensive. At first, he said that it was possible that RB sat on his lap. Afterwards, he disagreed that it happened because he would remember if it had occurred and he would not have done that. Mr. Guindon testified that his parents would not have allowed it. He further persisted that he totally disagreed that RB ever sat on his lap. He was not consistent on this point.

[179] In direct examination, Mr. Guindon testified he was never alone with RB and that others were always around. However, during cross-examination, Mr. Guindon changed his evidence. He conceded that it was possible that, at times, he was alone with RB but that he did not sexually assault him. Mr. Guindon’s position was there was no opportunity for him to commit the alleged assaults against RB. It defies logic that there would not have been a single occasion in the extended period that RB resided with the Guindons where RB and Mr. Guindon were alone together. Mr. Guindon had his own bedroom, his mother went to bingo some nights during the week, his father watched television on the main level and drank, GB watched a lot of television with Wilfred Guindon and Paul Guindon was doing his own thing. Mr. Guindon’s evidence on this issue is incredible and negatively impacts his overall credibility.

[180] In his evidence, Mr. Guindon testified that Nancy Guindon never went out by herself and that they always went outside of the house together. When pressed on this issue during cross-examination, he was very categorical that Nancy Guindon never left the house without him and that he never left the house alone either. Mr. Guindon testified that in the past thirty years, there was never one instance he and Nancy Guindon went out of the house without the other. After further pressing on this issue, Mr. Guindon conceded that he and his wife may have left the house separately only when one of them stayed at home sick and the other went to work. Mr. Guindon’s evidence regarding never being outside of the home separate from his wife for a period of thirty years is very difficult to believe. I find Mr. Guindon provided evidence that was improbable and unreasonable with regards to this issue.

[181] The Crown submits that Mr. Guindon attempted to persuade the court that he could not have sexually assaulted RB because he never had the opportunity to do so. I agree. He attempted to establish a lack of opportunity by exaggerating the number of occasions he was away from home on evenings and weekends. He testified that if he was ever alone with RB in his own bedroom, the door was always open. Mr. Guindon testified that he could not close his bedroom door because it would not close completely. Paul Guindon testified that that Mr. Guindon closed his bedroom door when he listened to music. RB testified that he often went to Mr. Guindon’s bedroom to listen to music with him. During cross-examination, Mr. Guindon was extremely defensive regarding the issue of closing his bedroom door. Mr. Guindon finally conceded that his bedroom door would be closed at times, but he could not remember a single time that it was closed. This evidence is incredible.

[182] The Crown raised another inconsistency in Mr. Guindon’s evidence with regards to how Wilfred Guindon disciplined Mr. Guindon, Paul Guindon, RB, and GB. Initially, he said that there was no physical discipline. However, in cross-examination, he testified it became physical because his father “whacked” him and his brother with a slipper. However, he testified that his father would probably not hit RB and GB because they were not his sons. When it was put to him that it was extraordinary that he had never seen his father strike the boys, Mr. Guindon responded that he was not there all the time and if the boys had been severely abused by his father, they would have told him about it. I find this is another example of an internal inconsistency in Mr. Guindon’s evidence.

[183] A concerning part of Mr. Guindon’s evidence is with regards to the layout of Guigues. He initially testified that his diagram of Guigues was based on his memory. During cross-examination, he conceded that he and Paul Guindon discussed the layout and his brother agreed that his diagram was correct. Mr. Guindon knew that his brother would testify at his trial. In cross-examination, he was pressed about his discussion with Paul Guindon. Mr. Guindon testified that he was not aware of the order excluding witnesses and that they were not allowed to talk together about their evidence. He said that he only found out about this at his trial. However, he conceded that he knew that his wife sat outside of the courtroom for the preliminary inquiry because she was an excluded witness. It is noteworthy that, in her evidence at trial, Nancy Guindon testified that her husband would have been aware of the order excluding witnesses. When Mr. Guindon was pressed about when the discussion with his brother occurred, he testified that he could not recall if it was before or after the preliminary inquiry. On the second day of his testimony at this trial, he testified it happened two weeks prior to his testimony at trial. He was also very evasive when he was asked why he showed his diagram to Paul Guindon. At first, he said that he did not do so to ask his brother if his diagram was correct. Afterwards, he testified that he showed it to him to see if it was a good representation of the layout. The layouts were an important aspect of this trial.

[184] Another concerning part of Mr. Guindon’s evidence was with regards to his conversation with Paul Guindon about the trips they took with RB and GB. As with the conversation about the layout, this took place before the trial and was contrary to the exclusion order. Mr. Guindon asked Paul Guindon about his memories of the trips they took. I find it seriously concerning that Mr. Guindon and Paul Guindon discussed their evidence on the issues of the layout and the trips prior to the trial when they knew it would be important evidence. It leads me to believe that they colluded together with regards to this evidence.

[185] The Defence argues that Mr. Guindon’s evidence was unshaken in cross-examination. As I have just described, I disagree. Mr. Guindon’s evidence is littered with internal contradictions and inconsistencies. As noted above, I have rejected much of his evidence.

[186] Mr. Guindon continually tried to minimize his position of trust with RB. Paul Guindon testified that when they were on vacation, Mr. Guindon was the adult responsible for RB. In direct examination, Mr. Guindon was asked about his role with RB. He responded that he did not have a role; he was a foster brother. During cross-examination, he was asked about his evolving relationship with RB. He finally ended up by testifying, “I guess he saw me as a big brother”. He was very guarded when it was put to him that he had a close relationship with RB, though he later acknowledged that he assumed the parental role over the boys when the three of them were away from home.

[187] I find that, overall, Mr. Guindon’s evidence about what occurred between him and RB is incredible. He often contradicted himself during cross-examination, and when he was confronted with a contradiction, he blamed his poor choice of language or said that he misunderstood the question initially. He tried to explain things away and contradicted himself on quite a few occasions. I therefore cannot rely on his evidence.

[188] When I review Mr. Guindon’s evidence as a whole, I find that it is incredible. I do not accept his evidence of what occurred between him and RB.

[189] With regards to Nancy Guindon’s evidence, the Crown argues that she was “all over the map”. I agree. She was forthcoming at first; however, during cross-examination, she continually contradicted herself. At times during cross-examination, she tried to guess where the Crown’s questions were going and often gave answers that were not responsive to the Crown’s questions. The Crown submits Nancy Guindon offered responses that supported her husband’s position. For example, she was asked what they did when she visited Mr. Guindon at the Co-op. She responded that she spent time with his mother and that they stayed in the living room, but she did not go into Mr. Guindon’s bedroom. When she was pressed about why it was relevant that they did not go into Mr. Guindon’s bedroom since it was not responsive to the question asked, she answered, “I thought that was where you were leading”; she was anticipating where the Crown would go next. I agree with the Crown’s position.

[190] During Nancy Guindon’s evidence about the phone conversation, there were many internal inconsistencies. She initially admitted that during the phone conversation between Mr. Guindon and RB that she overheard, they discussed a closure letter in which Mr. Guindon would admit to sexually assaulting RB and the existence of naked photographs. She also admitted that RB told Mr. Guindon that he would not pursue criminal charges against him. This evidence corroborated part of RB and SB’s evidence about this conversation. It was clear that when she realized what she had said, she completely changed her evidence. She then testified that she was referring to the Board letter, not a closure letter.

[191] When I review Nancy Guindon’s evidence as a whole, I find that she lacks credibility and reliability. I do not accept much of her evidence.

[192] I turn to a review of Paul Guindon’s evidence. He gave his evidence in a more forthright manner than the other Defence witnesses. However, the concerning part of his evidence relates to his conversations prior to the trial with Mr. Guindon about the layout of the houses and the trips they had taken with RB and GB. Paul Guindon attended the preliminary inquiry the year before. He agreed he knew that the reason they had to sit outside of the courtroom when others were giving their evidence was that they should not know what was said. He and Mr. Guindon had a brief discussion about the exclusion of witnesses at the preliminary inquiry. He and his brother were both aware of this rule.

[193] Paul Guindon agreed that when Mr. Guindon showed him his diagram of the layout at Guigues, Mr. Guindon wanted to show how the house was structured and how the rooms were built. Paul Guindon knew the diagram was relevant to Mr. Guindon’s case. Paul Guindon agreed that Mr. Guindon showed him the diagram a month before the trial and they both knew there was a possibility that Paul Guindon would testify at trial and in particular about the layout at Guigues.

[194] The other concerning part of Paul Guindon’s evidence is with regards to the trips. This was a separate conversation than that of the layout. Paul Guindon and Mr. Guindon discussed the trips prior to the trial. Mr. Guindon asked him about his memories of the trips they had taken. He specifically asked if Paul Guindon remembered the trips to Wonderland and Bouchette. At that time, they knew that Paul Guindon would testify about this topic at the trial. At that time, they did not discuss the fact that they were not supposed to discuss their evidence before the trial. Paul Guindon conceded that Mr. Guindon told him what he remembered about the trips and the sleeping arrangements. It was put to him that it was nearly impossible that two people who came into a room to talk about events of forty years ago would recount the same details. He agreed that some details could be different but overall, however, the information about the trips would be the same.

[195] The fact that Mr. Guindon and Paul Guindon colluded together by discussing the details of the layout at Guigues and the trips when both knew Paul Guindon would testify about these important issues at this trial leads me to question his evidence as a whole. Based on my overall review of his evidence, I find that he is not a credible and reliable witness.

[196] As for the apology email, the Defence argues there is no evidence to connect Mr. Guindon to the emails dated February 7, 2017 and February 10, 2017. That is correct. The parties filed an Agreed Statement of Fact concerning these emails. It explained that Guerilla mail is a free disposable email address service that allows users to send and receive emails. The user’s identifying information is not required to use this service. The incoming and outgoing emails are saved for one hour and afterwards they are permanently deleted and irretrievable. Rootfest.net and Re-gister.com are both similar services to Guerilla. Emails sent from these services are also deleted and irretrievable. Det. McDougall made inquiries with the Criminal Investigation Division in order to determine the origin of these emails. She was advised that it was not possible in this case to obtain the information sought since it would have become irretrievable within a few hours of sending or receiving these emails. Guerilla, Rootfest.net and Re-gister.com all existed in February 2017.

[197] The two apology emails are identical; they are drafted in French and “Denis” apologizes to RB. I note that there are barely any spelling mistakes and the grammar is very good. This is a piece of circumstantial evidence. It is clear from the evidence that RB was incapable of writing such an email. He is a simple man and is not technologically literate. CB wrote all his documents except for his applications to the Board. The Defence alleges that CB is the author of these emails. When that suggestion was put to her, she responded that she absolutely did not do so, but if she had, she would have incorporated many more details about the sexual abuse, made it a full apology and not have mentioned the good things. In addition, she does not work or write in French since they moved out west. It is noteworthy that Nancy Guindon described her husband as the “technical guy”. He knew how to solve her problems when she had computer issues. She agreed during cross-examination that her husband is fluently bilingual, his first language is French, and it is possible that he wrote the apology email without her knowing.

[198] A simple reading of these apology emails discloses that the author is guarded. The fact these emails were sent through untraceable email addresses further adds to the anonymity. The email begins with an apology but then focuses on the good things that Mr. Guindon did for RB, like taking care of his son, DB. The author pleads that he does not want to lose his family and friends. The email is signed, “Ton frère pour toujours, Denis”. The timing of these emails is important. CB testified that the first email dated February 7 went into her spam folder and she did not see the email. On February 9, an email was sent to CB asking if RB had received the original letter. It had just been revealed during CB’s discussion with Nancy Guindon that the former had not received the apology email. Consequently, Nancy Guindon advised CB that she would resend it to her, and a second apology email was sent on February 10. On February 11, CB sent “Denis” a lengthy response to the apology email in which RB expressed that he was frustrated because it was not the letter he expected to receive. For example, RB says,

You don’t go into details and its not an apology letter. Denis this letter is very important to me in terms of helping in finding closure in my life…And the fact that you even added the second paragraph about how you say that in other words that I should be grateful for all the good things you have done for me????? Is this a Joke????

I note that the comment about “closure” is consistent with RB, SB and Nancy Guindon’s evidence about the telephone conversation between RB and Mr. Guindon.

[199] It is believable that the second apology email was sent because the first one was not properly received. If CB was motivated to send such an apology email, based on her other emails, she would have drafted an elaborate email that contained many more details. In addition, the apology email mirrors a couple of issues that were discussed between RB and Mr. Guindon during the phone conversation that was overheard by SB. Mr. Guindon said he did not want to lose his wife and family. Based on my overall review of the evidence, I find that Mr. Guindon likely wrote these apology emails.

[200] I turn to the three steps in W. (D.). First, based on my findings above, I do not believe Mr. Guindon’s evidence as a whole regarding his relationship with RB. Second, based on my findings above, I do not believe Mr. Guindon’s testimony and I am not left in a reasonable doubt by it. Third, based on my findings above, although Mr. Guindon’s evidence does not raise a reasonable doubt, on the basis of the evidence that I accept, I am convinced beyond a reasonable of Mr. Guindon’s guilt with regards to counts 1, 2 and 3. I do not accept Mr. Guindon’s evidence about his relationship with RB, nor do I accept the evidence of Nancy Guindon and Paul Guindon. I find the evidence provided by RB, SB, CB and GB to be credible and reliable.

[201] Based on my overall assessment of the evidence, I find that Mr. Guindon used his position as an adult role model and older brother to prey on RB, a vulnerable child, for his own sexual satisfaction. RB came to the Guindon residence as a foster child having been taken from his mother and resided in two other foster homes prior to his arrival. He was clearly a vulnerable child. RB described how, at first, he was happy to do something with Mr. Guindon that the latter found thrilling. RB looked up to Mr. Guindon. Mr. Guindon bought him things, took him out places and on vacations. Simply put, Mr. Guindon paid special attention to RB. These actions constitute a grooming pattern. I find that Mr. Guindon took advantage of RB and committed the acts as listed in the indictment.

[202] Overall, based on all of the evidence as a whole, I am convinced beyond a reasonable doubt that Mr. Guindon is guilty on all counts.

Conclusion

[203] On the basis of the evidence that I accept, I am convinced beyond a reasonable doubt of Mr. Guindon’s guilt with regards to all counts. With regards to count 1, I find that the Crown has proven all of the elements of the charge of indecent assault as per s. 156 of the Code beyond a reasonable doubt. Mr. Guindon is the person who committed the offence of indecent assault; the offence of indecent assault occurred at the time and place set out in the indictment; Mr. Guindon applied force to RB directly or indirectly; Mr. Guindon intentionally applied force to RB in circumstances which had the quality of indecency; RB was under the age of 14 years at the time of the alleged offence and after the age of 14 years he did not consent to the application of force or did not consent validly due to Mr. Guindon inducing RB to engage in the activity by abusing a position of trust, power, or authority; and RB is a male person. I find the following evidence satisfies the elements of indecent assault:

• Mr. Guindon took RB’s hand and placed it on his penis both over and under his clothes while RB sat on his lap at Guigues;

• Mr. Guindon put RB’s hand inside of his shorts while in Mr. Guindon’s bedroom at Guigues;

• Mr. Guindon performed oral sex on RB at Murray;

• At Murray, Mr. Guindon had RB perform oral sex on him, which included RB being on his knees in order to perform oral sex, Mr. Guindon pushing his penis inside of RB’s throat, making him gag, and Mr. Guindon’s ejaculating on RB’s face and in his mouth;

• Mr. Guindon and RB performed oral sex on one another in the “69” position at Murray;

• Mr. Guindon had RB straddle him while he grabbed both of their penises in his hand at Murray;

• Mr. Guindon had RB squeeze his nipples while he masturbated RB at Murray; and

• Mr. Guindon performed oral sex on RB and had RB perform oral sex on him at the Co-op.

[204] With regards to count 2, I find that the Crown has proven all of the elements of the charge of sexual assault as per s. 246.1 of the Code beyond a reasonable doubt. Mr. Guindon intentionally applied force directly or indirectly without RB’s consent and he committed the offence in circumstances of a sexual nature such that the sexual integrity of RB was violated.

[205] I find the following evidence satisfies the elements of sexual assault:

• Mr. Guindon performed oral sex on RB and had RB perform oral sex on his at the Co-op;

• Mr. Guindon engaged RB in acts of mutual masturbation at the Co-op; and

• Mr. Guindon had RB lick and insert his tongue into his anus.

[206] With regards to count 3, I find that the Crown has proven all of the elements of the charge of buggery as per s. 155 of the Code beyond a reasonable doubt. Mr. Guindon had anal intercourse with RB. The evidence that Mr. Guindon penetrated RB’s anus with his penis in his bedroom at Murray satisfies the elements of buggery.

Justice M. O’Bonsawin

Released: April 29, 2020

COURT FILE NO.: CR-18-SA5061

DATE: 2020/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Denis Guindon

reasons for decision

O’Bonsawin J.

Released: April 29, 2020