COURT FILE NO.: NJ 16-18

DATE: 2020/10/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AESP

Defendant

Lynette Fritzley, for the Crown

Edward Kiernan and Racheal Eddy, for the Defendant

HEARD: October 5, 6, 7, 8, 9 and 13, 2020

PUBLICATION RESTRICTION NOTICE

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING, PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA, DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ACCUSED, ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITIES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY. THIS JUDGMENT COMPLIES WITH THAT RESTRICTION SO THAT IT MAY BE PUBLISHED.

JUDGMENT

Turnbull, J.

[1] The defendant is charged with five counts involving alleged sexually inappropriate behaviour with three young girls under the age of 14 between July 1969 and July 1973.

[2] Those charges are summarized as follows:

Count #1: commit an act of gross indecency with TP (his step-sister) contrary to Section 149 or Section 157 of the Criminal Code of Canada, S.C. 1953-54, C.51

Count #2: commit an indecent assault against TP contrary to Section 141 or Section 149 of the Criminal Code, S.C. 1953-54, C.51

Count #3: have intercourse with TP, a female who was not his wife and was under the age of fourteen years contrary to Section 138 or Section 146 of the Criminal Code of Canada, S.C. 1953-54, C.51

Count #4: did commit an act of gross indecency with KH, contrary to contrary to Section 157 of the of the Criminal Code of Canada, R.S.C. 1970, c. C-34.

Count #5: did commit an act of gross indecency with SH, contrary to contrary to Section 157 of the of the Criminal Code of Canada, R.S.C. 1970, c. C-34

[3] For the reasons articulated herein, I find the defendant guilty of counts 1, 2, 4 and 5. I find him not guilty of count 3.

[4] He has pled not guilty to all counts. Sweeney J. of this court ruled in pre-trial rulings that the evidence of each complainant may be admitted as similar act evidence with respect to the counts relating to the other complainants. He also ruled that the evidence of LS, who is not a complainant but who alleges she was also indecently assaulted when she was a young girl, is also admissible as similar fact evidence. Counsel agreed that despite the fact that I did not render the pre-trial rulings, I could preside on this trial and adopt the rulings made by Sweeney J.

[5] Counsel further agreed to the following matters:

a. Jurisdiction is admitted. While some of the offences occurred in Hamilton, both parties are content the matter be tried here in Norfolk County.

b. All of the complainants were under the age of fourteen at the time of the alleged offences.

c. The identification of the defendant SP as the person who allegedly committed the offence is admitted.

d. If the conduct is proven beyond a reasonable doubt it would meet the standard of gross indecency.

Review of the Evidence:

Evidence of TP:

[6] TP is the step-sister of the defendant SP. She was adopted into his family shortly after her birth. She described growing up on the family farm with her parents, her oldest brother (the defendant) who is about 10 years older than her, her next oldest brother G who has since passed away and ultimately her younger sister M who is about 9 years younger than her.

[7] She testified that the defendant forced her to participate in approximately 50 sexual acts with him between July 14, 1969 and July 21, 1973 in various locations on the family farm property. She was born in 1961. When she was around 6-7 years of age, prior to her beginning school in grade one at the age of 7, she recalled these acts started. She testified that they continued to approximately July 1973 when the defendant got married. The alleged incidents occurred outside the family farmhouse at various locations on the farm where they were out of sight and sound of anyone who might discover them.

Incidents in A Blue Car:

[8] TD recalled the first of these incidents occurred in an old blue car parked on the farm near the barn. The barn was located behind the house, an estimated distance of 20-30 feet away. The complainant stated that her brother forced her to get in the back seat of this abandoned car where he variously groped and fondled her breasts and vaginal area. At first, it was touching above her clothes which caused her some discomfort but progressed to him removing her short pants from one of her legs and touching her vaginal area. He encouraged her to touch and in due course lick his penis and she remembered thinking he had urinated one time on her stomach, not realizing until she was older that he had in fact ejaculated. She testified that these incidents were repeated several times in that car.

[9] She recalled that the last of these sexual incidents occurred in the blue car within the year before the defendant was married and left the family home. She estimated that she was 12-13 years of age at that time. On that occasion, the defendant tried to penetrate her but was not able to do so because she was so young. She recalled that instead, he inserted his finger in her anus. The complainant stated that it was not the first time in the car that he had tried to penetrate her mouth and her vagina with his penis. She did not think he was able to penetrate her vagina, but if he did, she felt it was no more than an inch. She recalled that she had a little bleeding after that incident and that possibly he had ejaculated. It ended when their mother came to the screen door of the house and called them into the house for supper.

[10] To the best of her recollection, each incident lasted approximately 20 minutes.

Cornfield Incidents:

[11] The family grew corn on their ten acre farm. TP testified that she used to run to the cornfield to hide from him. He would tell their mother that she was hiding from him and in turn, her mother would call and she had to come out and he then knew where she was. She believed that she started hiding there when she was about seven years of age. She recalled that there were only two or three incidents in the cornfield, each involving touching his penis and him touching her vagina. She estimated she was only ten or eleven years old at the time of those interactions. In the cornfield, she recalled that she was usually standing as he played with her breasts or lack thereof. She was unable to recall him saying very much other than threatening that their parents would send her back to where she had come from and that no-one would believe her if she complained of his behaviour.

The Corncrib Incident

[12] A rectangular corn crib was located on the farm behind the barn. The harvested cobs of corn were stored in the wire meshed building, under a solid roof. The complainant testified that she would hide on the top of the piled corn by creating a little hole in the cobs into which she could lower her body and be out of sight. However, on one occasion she recalled that he did find her there and he was very angry at her. On that occasion, she testified that he was very aggressive and put his finger in her anus. She was not sure of what else happened that day.

The Hayloft:

[13] TP would go up into the hayloft in the barn to tame kittens and because it was another good place for her to hide out. There were a number of sexual incidents which allegedly occurred in the hayloft.

[14] She recalled that one time the defendant came up, pulled her pants down and fingered her digitally in the anus. She said her back got scratched from the hay she was lying on as this occurred. He made her lick his penis. She recalled that his aggressiveness on that occasion was the worst. That was one of the last of the times he allegedly assaulted her.

[15] TP testified that there were a few times that the defendant tried to penetrate her, other than the time in the car. However, on most occasions, it was more that he wanted her to touch him and lick his penis.

[16] She testified that after the defendant’s wedding in the summer of 1973, there was no further sexual contact with TP. In fact, she recalled having virtually no contact with her brother for almost the next forty years until 2014, other than at four or five family occasions, one of which was her father’s funeral in 1995.

TP’s Relationship with Her Parents:

[17] TP described her relationship with her father as “great”. She described him as her hero and it remained like that until he died in early 1995. She found her relationship with her mother was not as close as that she enjoyed with her father. She recalled her mother as being physical, recalling that her mom hit her when disciplining her. She stated her mother never seemed to believe what she had to say as a young girl. She described her relationship with her mother as being much better when she became an adult, prior to her mother’s death October 3, 2016. The evidence I heard in this matter after TP testified, brings that latter comment into serious doubt.

[18] She considered her mother to be rather strict and that she favoured her older brother (the defendant) more than her. Possibly that was due to the fact that her brothers were her biological children whereas she and her younger sister M were adopted, something she did not learn until she was about 14 years of age.

[19] TP believed that her mother did catch them in the blue car one time when she suddenly came out of the door of the house. She screamed at them to get out of the vehicle. At that instant, she recalled that she was licking her brother’s penis and he had his finger in her vagina. She did not believe that her mother saw what was going on. When TP came into the house, her mother made her sit on a chair, whereupon the TP threatened to tell her dad what had happened. She recalled her mother then hit her so hard that she fell on the floor. Her mother told her to remember where she was and that she (her mother) was the one who was with her all the time.

[20] The complainant remembered realizing that she was really mixed up. She was just starting to realize that was not how all families live and brothers do not do that to sisters. She felt upset and very alone. She described herself as being hurt and confused. She did not tell her dad then because she said was scared of her mother. Despite believing her mother knew what was going on, TP did not believe her brother ever got in trouble.

[21] Ultimately, she told her mother and father about the defendant’s alleged misconduct on her wedding day in 1981. She recalled her dad was furious and wanted to deal with her brother immediately. Her mother interceded, and nothing occurred.

[22] TP decided that she would not make a formal complaint about her brother’s conduct while her parents were still alive. She felt that the public humiliation would be too much for them. She described them as God fearing, hard-working people and she would never want to do anything to hurt them.

Reporting the Matter to the Police:

[23] In July 2017, she finally reported the matter to the police. Her mother had died the preceding year. Her brother G, who never mistreated her and who she helped with personal care during his losing battle with kidney disease and cancer, died in 2014.

[24] She reported the matter to the Hamilton Police Service at that time. She testified that she waited until her mother had died because her mother would have chosen her brother’s side and she did not feel that she could take that emotionally. In cross examination, she stated that she waited until her mother died because it would have been too difficult for her mother to live through such public allegations. She gave the police a statement of her allegations at that time and she was cross examined on that statement during her testimony.

[25] In cross examination, she was confronted with the fact that the only people that might have seen what went on in the home have all died, namely her mother, father, and brother.

[26] She agreed that she told Detective Cote that she had not spoken to her sister-in-law Barb about the physical abuse. Hence, she did not tell the police about her alleged conversation with her sister in law Barb prior to her marriage to the defendant. She stated that she must have forgotten to do so.

[27] When shown exhibit 3, a photograph of part of the barn and structure affixed to it, she identified the barn on the left side of the photo and denied recognizing the structure on the right as being where straw was stacked to provide bedding for the cattle. This was suggested to her to question her evidence that she explained scratches on her back to her mother being due to her falling on straw in the loft of the barn. The defence contended that only hay was stored in the loft of the barn.

[28] TP testified that it was not one of the defendant’s jobs on the farm to go to the hayloft to put hay down to the cattle. She asserted that his main job was to “shovel poop”. She at first asserted that her father and her brother G pitched the hay down from the loft. She qualified that statement and acknowledged that her dad was most often milking cows and doing other chores. She ultimately agreed that one of her two brothers had then thrown the hay down from the loft. The position of the defence is that it was illogical for her to go to the hayloft if she was trying to avoid the defendant when he was on the farm.

[29] She denied remembering the defendant moving out of the house in 1969 and going to live and work at another farm for four or five months until the weather turned cool in the autumn. She had vague recollection of his various jobs off the farm as a butcher or working a firm called Livingstons where wooden crates and pallets were constructed.

[30] She denied that in the summer of 1970, her late brother G and her were caught in the blue car by one of her parents with her pants down and her clothes lifted above my waist. She emphatically denied that allegation and stated that her brother G never touched her.

Collusion:

[31] In her examination-in-chief, she denied having much, if any contact, with the other complainants SH and KH for a great number of years. Two of them are sisters of her former sister-in-law Barb, who married the defendant in July 1973. TP did not know the defendant’s former wife, Barb, before she and her brother met. Barb had three younger sisters, one of whom passed away as a young child. TP lost contact with Barb’s two surviving sisters SH and KH and does not believe she has spoken to them since Barb married her brother, the defendant, in 1973. She recalled that the last time she saw Barb was at her mother’s funeral in 2016 and prior to that, the last time she recalled speaking with her was sometime before her father died in 1995. She testified that she does not keep in touch with Barb or her sisters. That was confirmed by them in their evidence.

Communicating Events to Others:

[32] At one of the visits to Barb’s parents before her wedding to the defendant, TP testified that as she went to the bathroom in the house, she found the defendant holding KH against the wall with one of his hands holding her two smaller wrists together over her head. She saw that he was touching KH’s breast area, despite the fact KH was only about 9 years old at the time. TP said she was shocked and told her brother to get away from KH. She estimated that she was 12-13 at the time. He did not say anything but left immediately. She agreed that she never spoke to KH or anyone else in the family about what she saw that day.

[33] TP testified that she did speak to Barb before her marriage to the defendant about what her husband-to-be had done to her. This occurred when they went fishing one day at the Waterford pond. She recalled that Barb also thought that she was a liar at that time.

[34] TP further recalled telling her cousin LS about her encounters with the defendant. On that occasion, one of her mother’s sisters was sick in a Hamilton hospital. She and her aunt Maxine went to visit and her cousin LS met her there. It was the first time that the complainant had seen her cousin in over twenty years. After the visit, the three of them went for lunch. At that time she told them her story of her brother’s behaviour and LS shared with them that the defendant had tried to do the same things to her every time he came to visit their home. TP recalled seeing LS as a child when occasionally her family would visit L’s home for Christmas or special birthdays.

[35] TP testified that in her statement to the police, she recounted what LS had told her about the defendant’s behaviour.

[36] In LS’s testimony, she stated that she had told no-one other than her Aunt Maxine about the defendant’s inappropriate behaviour.

Evidence of the Defendant with respect to the allegations of his sister TP

[37] The defendant testified in his own defence. During a thorough examination-in-chief, he was taken to the evidence of each Crown witness who testified to his sexual misconduct against her and he denied each and every allegation. He stated that in the ten years or so that he lived on the family farm with TP, he was never once alone with her.

[38] He is 69 years of age at the time of trial. He was born in 1951 and is now retired. He previously worked for the same employer from 1972 to 2008, when he retired.

[39] He was two years older than his brother G and ten years older than his sister TP.

[40] After graduating from high school at the end of grade 10, he said he had to find a job because his parents had told him he was going to have to start paying some rent. He undertook no further educational training thereafter.

[41] He went to work in the late spring of the year after his high school studies terminated as a full-time residential employee on a nearby farm where he lived until the autumn of that year. At that time, he returned to live with his parents and his siblings on the family farm. He held various full time jobs off the farm until being hired in October 1972 by the employer with whom he worked until his retirement

[42] He lived with his parents and siblings on the family farm until he was married in 1973. At that time, he was 22.

[43] SP denied all the allegations of sexual touching or sexual impropriety made by TP. He stated that “from day one” he did not have a good relationship with his sister when she was adopted into the family as a baby. Clearly, he did not mean that literally but simply that from the time TP was relatively young, they did not have a relationship. He recalled that he did not play with her or spend any time with her because between school and his duties on the farm, he simply did not have the time. Furthermore, he resented the way he felt she treated his parents, stating that she treated them “like crap”.

[44] He denied the evidence of TP that at his wedding reception, she saw him pin KH against the wall of Barbs’ parents’ home and put his hand on her breasts. He stated that he did not do that nor did he ever pin KH against a wall at any time. His denial is given credence in my view because KH never testified that such an incident ever occurred. I would expect that such an assault would not be something she would have forgotten, even with the passage of so many years.

[45] The defendant agreed with TP on one issue. They had a very poor and hostile relationship, at the very least from the time of their father’s funeral in 1995 to this time. He recounted a dispute with TP when she wanted to remove a belt she had given to her father from his body as he lay in his casket in the funeral home in 1995. This resulted in a heated and acrimonious exchange between them which both referred to in their testimony. The defendant re-counted how his mother did not want to see TP when she was in a nursing home and then ultimately in the hospital prior to her death in 2016. Their younger sister MC testified to the same effect. She recalled that TP felt she and the defendant were keeping her from visiting their mother. She confirmed that her mother did not want to communicate with TP because she would upset her too much. She recalled that her mother was particularly upset with TP because she had disposed of her mother’s dog without her knowledge or permission. Up to the last couple of weeks of her mother’s life, MC recalled her mother was perfectly competent and made her own decisions.

[46] He stated that it was not possible that he and his sister would be sexually involved in the blue car because it was too close to the house. However, in asserting his brother Gord was in fact the perpetrator against their sister TP, he said his father found them in the blue car on one occasion which led to it being dismantled.

[47] He denied the sexual acts otherwise described by his sister ever occurred.

Evidence of KH

[48] She is the step-sister of Barb, and ten years younger than her. She was born in 1965. She recalls meeting the defendant when Barb and he became engaged. After a relatively short engagement, they were married in July 1973.

[49] At the wedding reception held at her home, she was about 7 or 8 years old. She recalled that she, her sister SH and TP all went to the washroom together. TP was a bit older than she and her sister. She remembered TP asking them if the defendant had ever touched them, pointing to the genital area. KH was surprised by this and did not understand the import of what was being suggested. She remembered TP saying not to worry because he will try to do so.

[50] KH could not remember seeing TP again after that wedding. She is not even sure if she spoke to her ever again after that or even in the last ten years. She never considered TP to be a friend and has had not contact with her through social media or through mutual friends. She also has had no other contact with other members of TP’s family, including M, the younger sister of TP.

[51] In 1974, KH and her family moved to a three bedroom bungalow home in Hamilton. Barb and the defendant would come to visit once or twice a month, most usually on Sunday afternoons. She described the kitchen leading to a set of stairs to the basement. In the basement, the stairway entered a largely unusable recreation room which was sparsely furnished and cold due to a lack of insulation. Off that room, a hallway led to a laundry room, a washroom and a utility room. Only the laundry area did not have a door.

[52] She recalled that during one visit by the defendant and Barb to their home, either her sister SH or the defendant asked her to act as a lookout while they went into the utility room. She sat on the stairs, not fully understanding what was going on. She did that a number of times and ultimately, her sister invited her on one visit to come into the utility room with her and the defendant. Once inside, her sister urged KH to lick the defendant’s penis as if she was sucking a lollipop. KH did so and remembered that it tasted “bad”. She did not suck it very long. She could not remember if the defendant ever ejaculated. It was the first time she had seen the penis of an adult male. She recalled squatting or resting on her knees as she performed the acts. She remembered the defendant’s head was held back like he was looking “up high”.

[53] She remembered doing the same thing on a second occasion and her sister was again present. She did it some other times but her recollection of how many times this occurred after that was very vague. She was certain that she acted as a lookout on more occasions than she was asked to perform fellatio on the defendant. All these events occurred in the basement of her home while Barb, her mother and her father (when he was not working shifts) were upstairs in the kitchen or living room.

[54] Finally, after a period of time, she told her mother what had transpired. Her mother was angry at her and suggested that she was trying to ruin Barb’s marriage. KH stated she was most hurt by her mother’s response to the complaints.

[55] I note that her recollection of her mother’s reaction to learning of these events is not the same as that of her sister SH.

[56] KH was thoroughly cross examined by counsel for the defence. I find that she was a very credible, understated witness whose testimony was not shaken by cross examination.

Evidence of SH

[57] She is the older sister of KH and is about 14 months older than her. She is approximately nine years younger than her sister Barb.

[58] She gave the same general description of the family home in Hamilton as given by her sister KH. She recalled, unlike her sister KH, that the downstairs was renovated into a useable recreation room at a fairly early time after the family moved to Hamilton in 1974.

[59] She recalled sexually related incidents which involved the defendant which occurred in the basement of the family home in Hamilton when SP and his wife Barb would visit.

Lifting Her Shirt Incidents

[60] The first unusual thing she remembered was when the defendant, shortly after Christmas in early 1974, urged her to flash her bare breasts at him. She estimated she was approximately 9 years of age. She described walking down the hallway from the bedroom area to the living room and if he was there, and no-one else was around, he would motion to her to pull her shirt up to show her breasts. She agreed that she was somewhat large breasted at that relatively early age. She said that this happened every time he came to Hamilton to visit their family.

[61] This behaviour ultimately led to him asking her to perform fellatio on him. She was unable to remember how things progressed to this level of sexual activity. She was not sure of when this first occurred but she remembered she was wearing shorts and a t-shirt and suggested it occurred in the summer months of 1974.

[62] She remembered performing this act in the washroom in the basement. She described him opening his zipper and she then performed oral sex. He never touched her. He withdrew his penis from her mouth when he moaned and groaned and before he ejaculated. She also was able to remember another occasion where it was done in the furnace room in the basement.

[63] She testified that the requests to give him oral sex extended over a period of approximately two years. She recalled that her sister KH was there outside the door as a lookout on many occasions. She emphatically denied in cross-examination that she asked her sister to act as a lookout. She could not remember if the showing of breasts continued when the oral sex began. She was emphatic that from the summer of 1974 for approximately two years, the defendant would ask her for oral sex when he came to their home in Hamilton. Most often, she recalled KH was outside the bathroom door.

[64] She tearfully testified that in due course she coached her younger sister how to perform fellatio on the defendant. She recalled the first incident with KH took place in the furnace room, with KH on her knees or crouching with her head at his penis level. She did not recall how that incident ended. She was only able to remember one incident when she was there with KH when she performed oral sex on the defendant.

[65] She was asked how these acts could possibly be occurring in the house with her parents and her older sister Barb in the house. She explained that often her dad would be outside working or working shifts in the steel mills in Hamilton. Her mother and Barb were usually visiting upstairs in the kitchen or in the living room. And in those times when they were alone with the defendant in the basement, his advances would take place.

Bedroom Incident

[66] SH also recalled an incident when she was lying on her father’s bed in her parents’ bedroom, with her legs hanging over the edge of the bed. She suddenly realized that the defendant was standing over her as she felt pressure on her vaginal area. She did not think he touched her there but realized that he may be masturbating. She kept her head turned to the side during this incident and did not look at what was occurring. That only occurred one time according to her evidence.

[67] In her cross-examination, she agreed she did not see the defendant masturbating and that no semen or ejaculate came in touch with her on that occasion. She believed this incident occurred at the very end of the incidents in late 1975 or early 1976 when she was eleven or twelve years old. She explained that it was not possible to see her parents’ bedroom from the kitchen and that it was possible to enter the hallway leading to that bedroom without being noticed by someone. She was unable to explain how she and the defendant could possibly be in that bedroom together without being noticed by someone. She disagreed with defence counsel’s suggestion that this event was just a memory which came to her for other reasons.

[68] Her older sister Barb’s evidence raised serious questions about whether this incident ever occurred. She stated that her mother was very strict about any of her children entering or playing in their parents’ bedroom. If their parents were in the room, they had to knock before entering. At all other times, the door was kept closed and the children were not to play in there. Furthermore, she indicated it was highly unlikely that SH or KH would be in there lying on the bed in the presence of the defendant without someone seeing it or being aware of it.

[69] SH testified that all this inappropriate sexual behaviour with the defendant ended when her sister KH told their mother about what was going on. SH was not there when KH told their mother but she recalled that her mother put a stop to it.

[70] SH’s mother came to her and asked her if what KH had told her was happening. When SH confirmed it was true, she recalled her mother was upset and angry at the defendant for sure and somewhat less so with her daughters. She did not punish them for it. After that conversation, every time the defendant and Barb came to their home for a visit, the girls were not permitted to be in the same room with him.

[71] SH does not believe that her mother told anyone else, including their father or her older sister Barb. She explained that her mother had also suffered sexual abuse as a child. SH opined that her mother probably would not have known to report it to the authorities.

[72] On one subsequent occasion, SH recalled that her mother came downstairs when the defendant was watching TV with the girls in the basement. He asked why she told the girls to go upstairs and SH recalled her mother saying that he knew why she was making such a demand.

[73] From time to time, SH’s mother would ask her if it was still happening and she assured her that it was not still occurring. She could not recall if KH was there when her mother spoke to her about it. At no time did SH’s father give her any indication that he was aware of what had transpired.

[74] When SH reached the age of 21, her parents separated and sold the family home. She and her sister KH moved to their own apartment to live independently. Up to the time they moved, SH said there were never any further incidents involving the defendant despite the fact that he and Barb and their children continued making fairly regular monthly visits to their home.

[75] SH testified that she never socialized with the defendant and his siblings as a child other than at family gatherings on birthdays or special family occasions. She recalled that they would go to Waterford to visit the family there when the defendant’s sons were celebrating their birthdays so that their grandparents could also be present.

TP’s Comment re “Lucky”

[76] SH did remember one time when TP, the defendant, their brother G and their parents did visit her home in Hamilton. SH recalled she was 16 at the time. When she, her sister KH and the complainant TP were alone together, she recalled TP asking her and her sister if they were as lucky as her to be able to do things for the defendant. SH said no. She recalled thinking of how sad she was for TP and how grateful she was to her mother for putting protections in place for her around the defendant. SH had not seen TP much up to then. She did not consider to be a friend.

[77] After that conversation, SH testified that she has never seen or spoken to TP since that time nor had any social media contact with her.

Collusion

[78] SH stated that she and her sister KH did not often discuss what had occurred with the defendant, estimating they had done so just two or three times as teenagers or in their twenties. In the fifteen years preceding the police investigation, she denied discussing it much until the police investigation presented itself. She explained that neither she nor KH had ever spoken to their sister Barb about the defendant’s behaviour because it just never came up. Her sister Barb testified that she separated from the defendant in 2000 and only was advised by her sisters about the allegations in a phone call in December 2019, because they wanted her to know the matter was going to court. SH recalls that Barb was very shocked and upset when advised because she could not understand why she was not advised much earlier.

Police Investigation

[79] When contacted by the police, SH was advised that an incident had been brought to their attention and she was asked if she wanted to come into the police office and discuss it. Her sister KH had already advised her that a police officer may call her. She stated that KH and her did not discuss it in detail but both agreed their secret was finally coming out and they needed to tell their story. After giving their stories to the police, SH stated that she and her sister never discussed this matter in detail. It was only when they learned that their older sister Barb would be called as a witness, that they decided they should tell her what had happened.

Evidence of the Defendant re Allegations of KH and SH:

[80] The defendant agreed that he and his former wife Barb would visit her parents and the two complainants in their Hamilton home once or twice a month after they moved there in late 1973 or early 1974. All the witnesses remembered such visits after the defendant’s first son was born in July 1974.

[81] The defendant agreed that from time to time, he would be alone in the basement recreation room playing or talking with the girls. He estimated that this occurred approximately two out of ten visits. That conflicts with the evidence of his former wife Barb and the complainants SH and KH. Their evidence indicates that such occurrences were much more frequent.

[82] He recalled that during these visits, he spent most of his time watching television upstairs in the living room or outside the house. He recalled playing monopoly with SH and KH in the living room but did not agree withBarb that sometimes he played cards with the kids or kicked a ball with them in the basement. He said they may have kicked a ball outside the house. He recalled playing with the complainants outside the house in the back yard.

[83] He agreed that a few times he sat on the chesterfield with them in the basement. He recalled that they would talk or simply play.

[84] He denied that he had been involved with KH or SH in any inappropriate sexual manner and emphatically denied their allegations.

[85] It is evident to me in his testimony that he was attempting to paint a picture of minimal activity with the girls in the basement which is contradicted by them and their older sister Barb.

Evidence of Barb:

[86] She is the 65 year old former wife of the defendant. They separated in 2000 and have had little or any contact since. Their divorce was ultimately finalized in 2008 and both have subsequently remarried. During 26 years of marriage, she never suspected him of being a pedophile.

[87] She is the older sister of SH (by about 9 years) and KH (by about 10 years). She became engaged to and married the defendant in July 1973 when she was only 17 years old.

[88] Barb confirmed that her wedding reception in 1973 took place at her family’s former home. The next year, her parents sold that home and moved to the residence on the east mountain in Hamilton, where the alleged offences against her younger sisters took place. She stated that she and the defendant would visit her family at least one time per month and in turn, her parents and sisters would come to visit, but not as often. She described their visits to her parents’ home as random in nature because the defendant was working while she remained a stay at home mom with their son who was born in July 1974.

[89] Most often, they would arrive in Hamilton around lunch time and stay until her mother served them supper as her mother would never allow them to go home without a meal. On most visits, they stayed around the house and just interacted with each other. Very seldom did they go shopping. Her mother wanted to see the baby andBarb said she wanted to see her sisters who she missed seeing since her marriage.

[90] She described her parents’ home like the other witnesses, as a one floor, three bedroom bungalow with steps from the kitchen down to a basement level recreation room with a washroom, a laundry room and a cold cellar room off of it.

[91] When the visits happened,Barb explained that she and her mother spent time together talking about the baby and other subjects she described as “girls’ talk”. When her mother was cooking, she recalled staying with her in the kitchen talking and helping her. Her younger sisters usually played in the recreation room with their dolls. She recalled that the recreation room had been renovated shortly after her parents moved to Hamilton. Other times she would leave her mother in the kitchen and visit with her sisters downstairs. The defendant would watch TV upstairs in the living room on the main floor or go and play with the girls downstairs. The other family members could hear them laughing as they played downstairs. Barb remembered that when they were visiting her parents, KH and SH were always at home so they could visit with them as well.

[92] Barb recalled that the defendant was glad to look after the girls by himself both before and after her mother told her not to leave him alone with her sisters. They were usually playing outside then when the weather was nice. If not, they played downstairs, often enjoying a game of monopoly. They were able to hear their voices rising up from the basement. However, she stated that she and her mother had times alone together in the house but they were never far from the girls. Generally, it was a short time before they then checked on the baby and then on the girls. She was firm when she testified that they were within earshot of the girls at all times if they were in the basement.

[93] After the allegations against the defendant were disclosed to her, she stated that she thought back to see if there was something that she had missed and if there was something she should have been able to discern. She could only think of one incident. This was when her first child who had been born in July 1974, was somewhere between three and six months old. One time, when visiting her parents’ home in Hamilton, it was very quiet downstairs for an extended period when she and her mother were working in the kitchen. Her mother went downstairs. She was not down there very long. When she came up, she told Barb to go downstairs and not leave the girls alone with the defendant. Barb complied.

[94] The recreation room was rectangular in shape, with two chesterfields adjoining each other in one of the corners. She found the defendants sitting on the shorter couch and the two girls on the longer couch. All were quiet and looked like someone got caught with their hand in the cookie jar. She said it was an odd feeling. She remembered that there was silence for awhile but was unable to recall what happened next. She did not recall asking her husband or her sisters about what had transpired down there.

[95] Her mother never mentioned the incident to her again. Barb testified that thereafter, she was a little bit more cautious as requested by her mother, she would check on them more often to make sure they were behaving. She agreed in cross examination that she was only about 18 at the time and her mother’s authority was still a “big thing” for her. However, she stated that that incident did always thereafter make her wary of what the defendant was doing and who he was with at any given time. Despite that, she never saw or suspected any inappropriate behaviour on the part of the defendant with her sisters or any other young girls until told by her sisters in December 2019.

Interactions with Defendants’ Family

[96] Barb recalled that after their marriage, she and the defendant would go to his parents home at their farm for an afternoon dinner, usually on Sundays. She remembered that the defendant and his brother G got along really well. TP was there during the visits. She stated that at first, the defendant’s relationship with TP was normal. They would hug. He would hold her hand. Barb did not see anything abnormal or different from how her siblings interacted with each other.

[97] Barb did not state that TP had warned her about the defendant’s alleged in appropriate sexual behaviour prior to their marriage in 1973. I have no doubt, having heard her testify, that if such behaviour of the defendant had been told to her, she would have remembered the conversation and dealt with the situation prior to marrying the defendant.

[98] She recalled that eventually, about three to four years after their marriage in 1973, TP started to run away from home and not come home, which caused the defendants’ parents a lot of worry. After that, she did not see TP very much. From around the mid 1980’s to 2000, she remembered that TP and the defendant were not close and one could not stand the sight of the other. Crown suggests this animus existed because of the defendant’s prolonged and scarring sexual abuse of TP.

[99] In cross-examination, Barb agreed that if she saw the defendant and one of her sisters go into a washroom together, she would have found that very unusual behaviour. She said the reaction would be the same if they went together into her parents’ bedroom.

Evidence of LS

[100] She is a first cousin of the defendant and TP, one of their approximately 25-30 first cousins. Their mothers were two of seven sisters.

[101] She was born in 1955 and is presently 65 years of age. She is approximately four years younger than the defendant. She is not a complainant in this matter but was called by the Crown to testify as a similar fact witness.

[102] In her early years, she was raised by her mother alone. At about age 4, her mother moved them to Hamilton where her mother married her step-father. Up to age 7, she did not recall seeing TP and the defendant much at all, other than when she and her mother would occasionally stop to visit some of her aunts (her mother’s sisters) who live in Waterford, Vanessa and Villanova en route to St. Thomas where another sister resided. On occasion, the defendant’s family would visit their home in Hamilton when G had to take kidney dialysis treatment. She remembered playing with her cousins on such occasions.

[103] On one such visit to their home in the area of Mount Hope (at that time just outside the city of Hamilton), she estimated she was around ten or eleven years old. [^1] The defendant, his brother G and TP were present. Their family were going to stay for supper. LS’s mother told the four children to go downstairs to the recreation room and watch television. Once they were downstairs, they began to play hide and go seek. She described the basement of her home as having a large recreation room, with separate laundry, furnace and tool rooms on the same level.

[104] They turned off the lights in the basement and a little daylight was able to enter through a window in the recreation room.

[105] On one turn of the game, LS recalled that she and the others who were not “it”, scattered to find hiding places. She was in the recreation room when the defendant came over and trapped her against the wall in the southwest corner of that room. He started feeling her breasts under her undershirt and put his hands down inside her pants under her underwear. She was able to remember that this occurred prior to her twelfth birthday because on that birthday, she experienced the start of her first menstrual period.

[106] She thought the incident lasted as long as five minutes and if not that long, to her it lasted too long. When one of the other children suddenly came into the room, he withdrew his hands from her and said “I found her”. He warned her not to tell anyone or she would “be in big trouble.” She was certain it was the defendant who was the perpetrator because she recalled that he was right in front of her as he groped her.

[107] LS then ran upstairs to be with her mom. She asked if she could help with supper. She remembered setting the table and she stayed upstairs until their visitors left after supper.

[108] LS never talked to anyone about the incident nor did she ever speak to the defendant about his behaviour after that.

[109] LS testified that a similar incident again occurred again at the defendant’s house about six months after the first incident. On that occasion, she and her mother stopped to visit the defendant’s mother (the sister of LS’s mother) at their family farm. Once again, the she and her cousins TP, G and the defendant all played together, but this time outside the house. She recalled that there may have been some children from the neighbourhood there. G suggested they play hide and go seek.

[110] Once again, the children were all running around outside the house to find a place to hide. LS recalled that they had an outhouse on the farm as they did not have an indoor toilet at the time. LS ran behind the outhouse and the defendant followed her. There was no-one else around them. LS testified that the defendant then pinned her against the back of the outhouse and started feeling her breasts and put his hands down inside her underpants again. She recalled that as he touched her on her breast, he also had his fingers inside he vagina. This was what she recalled he had done the first time. He warned her in a voice that she considered to be angry in tone that she had “better not tell anyone about this”.

[111] This incident once again lasted approximately five minutes and only terminated when one of the children came around the corner and he quickly stopped touching her. Once again, nothing was said. LS then went right into the house and stayed close to her mother, with whom she was very close.

[112] After those two incidents, nothing ever happened again. LS always stayed with her mother during any subsequent visits to the farm. She recalled that she would not thereafter ever want to be alone with him.

[113] LS did not keep in touch with the defendant’s family very much, other than for the very occasional visit. She did not even know that the defendant had married Barb. She agreed that she never spoke to the defendant at any time about the two incidents. The last time she saw the defendant was at his father’s funeral in 1995. The last time she saw his sister TP was “quite awhile ago” when she went with her mother to visit her Aunt Maxine. She was not sure if that was before or after the 1995 funeral of her uncle but she was certain that she had not spoken to TP “for years”.

[114] At about the age of 19-20, she did tell her Aunt Maxine about these incidents as she was very close to her. She urged her aunt not to tell anyone. In cross-examination, she did not recall every discussing these incidents with TP. This conflicts with TP’s evidence that after visiting her Aunt Maxine one time, she went for lunch with TP and her mother where she testified that LS had told her about the incidents involving the defendant.

[115] In cross-examination, LS stated that she first became aware of this investigation when the police contacted her. She was located when her daughter, who lives in her parents’ former residence, was visited by the police and asked for her mother’s whereabouts. She swore that she knew nothing of any alleged sex abuse of TP by defendant and reconfirmed that she had heard nothing from TP prior to the police getting in touch with her.

[116] Contrary to what the defendant testified, she recalled during her cross-examination that his farm residence where the second incident occurred, was located on a gravel sideroad. The defendant testified that he could not ever remember her and her mother visiting the farm. LS on the other hand recalled that the farm had an outhouse for a toilet which she hated to use. She did not like going outside in the dark and she disliked the usual odours that come from outhouses. She remembered that one time when she and her mother stayed overnight, she was given a bucket to use in the event she had to urinate during the night because she hated going outside in the dark to use the outhouse.

Defendant’s Evidence re the Allegations of LS

[117] As a teenager, the defendant denied even remembering her being at his family’s farm or any place that they lived. He agreed that she could have visited but it did not occur when he was there. He further denied ever visiting the home where LS lived with her mother, but indicated that his family may have visited without him. He remembered that once he was fifteen or sixteen, he did not want to be going anywhere with his parents. He denied touching LS at all or in the way she explained in her testimony. He stated that he did not ever remember playing hide and go-seek with her or anyone. He felt that if he had done so, he would remember that.

The Law:

[118] I am mindful that similar fact evidence is circumstantial evidence. Standing alone, it is rarely if ever sufficient to support a conviction. However, our courts have held that when considered with all the other evidence, it may support the allegations that the actus reus did occur and bring into question the blanket denial of an accused that the events complained of never occurred. R. v. C.K. 2015 ONCA 747, [2015] O. J. No. 5769 at para 28.

[119] Ms. Fritzley in her helpful written submissions to the court has argued that the similar fact evidence in this case is compelling. In doing so, she cited another Court of Appeal decision[2] which spoke to probative value of similar fact evidence being founded on the improbability of coincidence. Watt J.A. wrote:

Even if a reasonable doubt existed in relation to each allegation considered in isolation, the individual allegations remain mutually supportive and capable of proving proof beyond a reasonable doubt.

[120] The Supreme Court of Canada has ruled that the court may consider the evidence of similar acts to assist in the proof of the actus reus of an offence.[3]

[121] In the case at bar, there are striking similarities in the stories recounted by the complainants and LS. Some of them are as follow:

a. each of the complainants were at least nine years younger than the defendant and LS was four years younger. All were pre-pubescent females.

b. all were related to the defendant.

c. the sexual acts had a similarity. They included vaginal touching under the underwear, insertion of his finger in the anus of at least two of the complainants, fellatio with three of the complainants and groping of breasts.

d. threats were made to TP and LS to not tell anyone of the incidents.

e. TP, SH and KH complained of multiple occasions of unwanted touching over a period of time. LS complained of just two such events but explained she prevented herself from thereafter ever being alone with him.

f. despite the evidence of the defendant and the presence of other adults nearby, privacy was available in each case and with it came opportunity. With TP, the farm provided numerous places where such acts could occur in privacy. With SH and SK, while privacy was more limited, it was available in the basement bathroom. With LS, the defendant waited until the two of them were in places of relative privacy.

[122] I find that the likelihood of co-incidence is compelling in this case, especially when I consider the similarities summarized above together with how the evidence was uncovered. TP went to the police. She did not speak with or connect with the others prior to doing so. It was Constable Cote who sought out the other complainants and LS and appropriately elicited their stories independently from each other and from TP.

[123] I have carefully considered the evidence of the defendant. In essence, it is a blanket denial of all alleged improper sexual behaviour which is often the case in these types of cases. That evidence is but some of the evidence for the court to consider. As Justice L’Heureux-Dube wrote for the Supreme Court of Canada [4]:

Whether an account given by, or on behalf of an accused might reasonably be true, is not in my view the honest and proper established test of whether the Crown’s evidence should be rejected. It is simply one factor in assessing the overall impact of the evidence as a whole. If one were to determine criminal cases simply on an academic test, unrelated to all the other facts, of whether something might reasonably be true, much of the impact of truly and compellingly credible Crown evidence such as that here, would go for naught, and truth would be subjugated by plausibility.

Analysis

Counts 1, 2 and 3 Relative to TP

[124] The defendant is not a sophisticated person. He has attained a grade ten education, finishing high school at the age of 16. He has thereafter been employed variously as a farm worker, a butcher and as an employee in a firm building wooden crates and pallets.

[125] I have taken those factors into account in considering his ability to parry the questions of the Crown during a vigorous but appropriate cross-examination. I further note that after 1976, when the last of the allegations against him occurred, SP appears to have lived a blameless life with no suggestion of any further sexual improprieties. It goes without saying that the passage of so much time understandably would affect his ability to remember many details.

[126] Having said that, I do not believe SP’s evidence with respect to the three complainants. He was inconsistent in his evidence. Despite asserting he had a clear recollection of things, his recollection was untrustworthy, especially when confronted with his earlier inconsistent (under oath) statement. This was particularly evident during his evidence asserting an alternate suspect theory when he could not remember when such critical events even occurred. Furthermore, his visceral dislike of TP was evident as he described his sister treating his parents “like crap from the time she was a baby”. Yet, his former wife Barb, recalled that he had a normal relationship with TP and his siblings when she married him. He tried to downplay his time with SH and KH and grudgingly admitted to time alone with them when faced with no other choice. With respect to Lynn Simon, he was adamant that no visits ever occurred at his farm home or at her home. His sister MC also did not remember visits, but she was ten years younger than the defendant. LS was clear and unequivocal about the circumstances leading to such visits and the presence and improper behaviour of the defendant on two of those occasions.

[127] On the other hand, upon review of the evidence of TP, I have significant reservations with respect to the veracity, reliability and accuracy of parts of her evidence.

[128] During her cross examination, TP was ordered by me, as court prepared to break for lunch, not to discuss her evidence with anyone over the lunch hour and to advise me if anyone attempted to speak to her about her evidence. She assured me that she understood.

[129] After the lunch break, Mr. Kiernan continued his cross-examination. He immediately asked her if she had conducted a cell phone call during the lunch break as she sat on a picnic table outside the courthouse. She denied doing so. She stated that all she did was text someone. Counsel for the defendant indicated that possibly his co-counsel, Ms. Keddy, might have to testify for the defence. It was agreed to adjourn for the afternoon to allow counsel to discuss how this apparent problem might be resolved.

[130] The next morning, counsel advised that the surveillance cameras which cover the exterior of parts of the courthouse were reviewed and a relevant extract had been obtained. Counsel entered a DVD of the surveillance which showed the witness leaving the courthouse and sitting on a picnic table close to the exit. She could be seen using a cell phone. When she was shown the video, the defendant denied that she was speaking on the telephone.

[131] At first, she stated that she had been pretty animated as she was talking to herself. She suggested that she had been talking to a bird. When shown the video, she again stated that she was texting. She denied seeing the cell phone by her head. The video was stopped at 1:27:51.889 where she could be seen putting on her jacket and moving the phone from one hand to the other. She agreed she may have been doing that but said she just could not be sure she could see it. When confronted with the video showing her leaning forward to talk on the phone, she finally agreed that she was talking on the phone for about ten minutes.

[132] She acknowledged that her testimony the previous day that she had not made a phone call, was not true. In response to Mr. Kiernan’s question, she stated that she was speaking with her counsellor and did not feel that she had to tell anyone in the court about it. She described the conversation as a discussion of the court case with her counsellor named Ann, who she described as her lifeline. She denied she knew the last name of Ann who had been her counsellor for about three years. She asserted that Ann had told her that she did not have to tell anyone that she had been discussing the case with her counsellor. When asked for Ann’s phone number, TP said she had left her cellphone at home so the cellphone log was not available to show the number. She denied seeing Ms. Eddy, defence co-counsel, walk by her as she sat on the picnic table.

[133] Barb impressed me as a truthful, independent witness. Despite having separated from the defendant in 2000 and divorced from him in 2008, she did not demonstrate any animus towards him as she testified. Her evidence with respect to TP carried the same degree of objectivity and fairness. She was the one potential witness to the allegations involving her younger sisters who is alive. As I observed and heard her testify, it struck me that she did not attempt to “take sides”. She testified impressively as to what she recalled so long ago.

[134] Her evidence conflicted with that of TP on what I consider to be a important point. She was certain that she was unaware of the defendant’s inappropriate sexual behaviour until advised by her two younger sisters in late 2019. I have no doubt that if she had been told of his alleged behaviour by TP when they went fishing prior to their marriage, Barb would have confronted her husband-to-be immediately about the allegations. Having heard and seen Barb testify, I unequivocally accept her evidence.

[135] TD gave a story of how she visited her late Aunt Maxine in the hospital and then went for lunch with her cousin LS. She testified that at that lunch, Lynn told her of abuse she had experienced at the hands of the defendant. L.S. denied that she shared her secret with anyone other than her Aunt Maxine. Furthermore, LS indicated that she had been assaulted by the defendant on just two occasions. TP told the police that LS had told her that every time the defendant came to LS’s home, he tried to inappropriately touch her.

[136] TP said that she remembered finding KH with her hands being held up over her head outside the washroom at the wedding reception while the defendant was touching her breasts. TP told the defendant to cut it out and she said she took KH into the washroom. KH never testified to such an event ever occurring. I have no doubt that if such an incident did occur, it would have been scarred into KH’s mind in the same way her interactions with the defendant in the washroom of her parents’ home have been.

[137] TP agreed that she waited to make the initial complaint until her mother had died. It is clear that her mother would not have been a sympathetic witness for her. TP testified that as a young girl, she was afraid to tell her mother about her brother’s behaviour because she knew she would be sympathetic to her brother, the defendant.

[138] In his able submissions on behalf of the defendant, Mr. Kiernan identified a number of other issues which he asserted diminish the reliability of the evidence of TP.

[139] Barb stated that at first, the defendant’s relationship with TP was normal. They would hug. He would hold her hand. Barb did not see anything abnormal or different from how her siblings interacted with each other. This conflicts with the evidence of the defendant that he never spent time with her or cared for her. On the other hand, it is inconsistent with the evidence of TP, as she was 12-16 years old in the period 1973 to 1977 and evidently old enough to withdraw from any contact or show of affection with her older brother. The defence suggests that perhaps the acts that she alleged did not take place.

[140] I do not accept the defendant’s evidence that he never played with his younger sister at any time because he was too busy with his off-farm employment and then his work responsibilities on the farm. He was there at the relevant times and I find his evidence on this point and on a number of other points was deliberately aimed at distancing himself from any opportunity to perpetrate the acts alleged.

[141] It was evident as I listened to the evidence of TP that she has demonstrated erratic behaviour in her life. At age 14, her behaviour became so egregious that her parents sent her to live in a group home. She became embroiled in a heated dispute with the defendant at the funeral home at the time of her father’s death in 1995. Her mother, when in the nursing home and ultimately in the hospital prior to her death, did not want her visiting her in the hospital. On one occasion, she attended with the police. She has little or no relationship with her younger sister MC.

[142] Mr. Kiernan also submitted that TP had significant motivation to fabricate these allegations against the defendant. She had a hostile and essentially non-existing relationship with the defendant at least from the time of her father’s funeral in 1995 when they had a serious argument over a belt on her father’s body. The defendant resisted any visits by her to her ailing mother in the hospital at the time of her death in 2016. Mr. Kiernan argued that when TP learned that she was only left $5,000 in her mother’s estate, that was the straw that broke the camel’s back and led her to publicly attack and humiliate her brother with these charges. MC testified that her mother named her and the defendant as the executors of her will. While she did not speak to TP about it, she stated that TP thought that there was another will in existence and challenged the validity of the will that was ultimately probated.

[143] In my consideration of the allegations made by TP against the defendant, I have taken into account the fact that she went to the police of her own initiative. There is absolutely no evidence of collusion with any of the other complainants or LS. TP, despite the evident credibility concerns in her evidence, explained how she was subject to grossly indecent sexual acts perpetrated against her by the defendant during her pre-pubescent years. The number and specific nature of such acts is not certain. I am not satisfied on the evidence that the defendant has sexual intercourse with his sister or penetrated her vagina with his penis. Hence, the defendant is found not guilty of count 3.

[144] After watching and hearing her testify and when I considered her testimony on the essential issue of whether she was otherwise sexually abused by her older brother, I felt such acts probably did occur. However, I am not convinced beyond a reasonable doubt on the evidence of TP alone of the guilt of the defendant on counts 1 and 2. However, when considered with all of the other independent and sadly similar fact evidence of SH, KH and LS, which I accept as being truthful, I am satisfied beyond a reasonable doubt that the defendant did commit an act of gross indecency and did indecently assault his sister TP between the 25th day of July 1969 and the 31st day of December 1973.

[145] I have applied test articulated by Cory J. in R. v. W.D., 1991 93 (SCC), [1991] S.C. J. No. 26, at para 28. I do not believe the evidence of the accused. He tried to distance himself from any opportunity to be alone with each of the complainants. I find totally inconceivable his assertion that for a period of ten years that he lived on the family farm with TP, he was never alone once with her.

[146] I find the defendant guilty of counts 1 and 2.

[147] The defence argued that the defendant’s late brother G was actually the perpetrator of the sexual acts against TP as part of a Third Party Suspect defence. I reject that evidence and find it lacks even a ring of credibility. The defendant’s evidence with respect to such allegations against his brother was replete with inconsistencies and contradictions with respect to when such incidents allegedly occurred. The complainant clearly cared for her late brother G and lived with him and tried to care for him prior to his death in 2014. Their sister MC confirmed that latter fact.

Count #4: Gross Indecency against KH

[148] I find the defendant guilty of this offence. Mr. Kiernan quite properly agreed that if I found that any of the sexual acts KH and SH testified had occurred, they would constitute acts of gross indecency.

[149] I accept the evidence of KH that she was induced by the defendant to perform fellatio upon him in the tool room of her family residence in Hamilton on a number of occasions when she was a minor and pre-adolescent girl of approximately 9 to 11 years of age between the years of 1974 to 1976. Her sister SH, whose evidence also was very believable, was an eyewitness to this occurrence. She was coached in what to do by her sister SH. She described graphically remembering being on her knees or crouched down as she performed the act the first time. She remembered that as it was taking place, he held his head back and seemed to be looking up high. She remembered that each time she performed this act, her sister SH was present.

[150] SH broke down as she testified how she coached her little sister how to perform the act. The evidence of SH with respect to the repeated indecent acts perpetrated against her by the defendant is also confirming evidence of the misconduct against her sister KH. I am also confirmed in this decision by the similar, indecent sexual acts commited against LS while she too was a pre-adolescent little girl.

[151] I am impressed by the fact that KH and SH were sought out by the police and at that time, they decided it was time to tell their story. There is no evidence of collusion with TP or with LS. KH and SH had no motivation to make up such a story against the defendant.

[152] I have applied test articulated by Cory J. in R. v. W.D., 1991 93 (SCC), [1991] S.C. J. No. 26, at para 28. I reject and disbelieve the evidence of the accused on this count. He tried to again distance himself from the opportunity to be alone with the girls in the basement of their home. I am convinced beyond a reasonable doubt on the totality of the evidence, of the guilt of the defendant. The similar fact evidence of TP and LS further confirm my decision in this regard.

Count # 5: Gross Indecency against SH

[153] I find the defendant guilty on this count.

[154] SH gave very clear, and in my view, truthful evidence against the defendant.

[155] I reject his evidence on this count in its entirety. It is inconceivable to me that SH and KH would make up their stories almost fifty years after the events and come to court and perjure themselves. I find that on a number of occasions in the basement of her family home, the defendant encouraged and coerced SH when she was a minor and a pre-adolescent girl to perform fellatio on him between the years 1974 and 1976. This is confirmed by the similar fact evidence of KH, her sister. It is also confirmed by the similar fact evidence of LS, who was inappropriately touched in a sexual manner by the defendant when she was alone with her during family visits. TP’s evidence of being the victim of grossly indecent acts also confirms my decision.

[156] I have no doubt that there were opportunities for the defendant be alone with the girls for a few minutes in the basement. Until KH told her mother, there was no reason for anyone to be suspicious of the defendant spending time with his wife’s much younger sisters. A long period of time would not have been necessary to allow these indecent acts to take place as KH and SH have so clearly recounted to this court.

[157] Both testified that they have only rarely discussed these incidents with each other over the years. I accept their evidence that they have not colluded in giving their story to the police or in giving their evidence to this court.

[158] Again on this count, I have applied the test articulated by Cory J. in R. v. W.D., 1991 93 (SCC), [1991] S.C. J. No. 26, at para 28. I reject and disbelieve the evidence of the accused on this count. I am convinced beyond a reasonable doubt on the totality of the evidence, of the guilt of the defendant. I am further confirmed in this decision by the similar fact evidence of TP and LS.

Turnbull, J.

Released: October 23, 2020.

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

AESP

REASONS FOR JUDGMENT

Turnbull, J.

Released: October 23, 2020

[^1]: That would mean that the visit occurred in approximately 1965 or 1966, when the defendant was approximately 14-15 years of age. This is a year or two before TP estimated she was first abused by the defendant at the age of 7, before she first went to school.

[2] R. v. Doodnaught, [2017] O. J. No. 5263 (C.A.) at para 157.

[3] R. v Shearing, [2002] S.C.R. 33 at para. 46.

[4] R. v. L. (D.O.), 1993 46 (SCC), [1993] 4 S.C.R. 419 at para 79, adopting a passage written by the trial judge.