COURT FILE NO.: CR-18-1466
DATE: 2020/11/30
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen
AND
W.K.
BEFORE: Justice A. Doyle
COUNSEL: Caitlin Downing, Counsel for the Crown
Adrian Cleaver, Counsel for the Accused
HEARD: October 26, 27, 29 and 30, 2020 at Pembroke
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons for JudgmenT
Overview
[1] The accused, W.K., is charged that between the 1st day of January 1974, and the 31st day of December 1978 in the Township of McNab Braeside in the said region did indecently assault A.D. a female person contrary to s. 149 of the Criminal Code of Canada, R.S.C. 1970, c. C-34, s.1, as amended by R.S.C., 1985, c. C-46 (“Code”).
[2] W.K. is also charged that between the 1st day of January 1976, and the 31st day of December 1978 in the Township of McNab Braeside in the said region did commit a common assault against A.D. contrary to s. 245(1) of the Code.
[3] W.K. is also charged that between the 1st day of January 1978, and the 31st day of December 1979 in the Township of McNab Braeside in the said region did without lawful excuse point a firearm at A.D. contrary to s. 86 of the Code.
[4] W.K. is also charged that between the 1st day of January 1988 and the 31st day of December 2001 at the Town of Arnprior in the said region did commit a sexual assault on J.K. contrary to s. 271 of the Code.
[5] W.K. is also charged that between the 1st day of January 1988 and the 31st day of December 1990 at the Town of Arnprior in the said region did commit an assault on J.K. contrary to s. 245 of the Code.
[6] W.K. is also charged that between the 1st day of January 1991 and the 31st day of December 2001 at the Town of Arnprior in the said region did commit an assault on J.K. contrary to s. 266 of the Code.
[7] The accused denies that the alleged incidents leading to these charges occurred.
[8] Matters such as date, identity and jurisdiction are not in dispute.
[9] At the end of their case, the Crown withdrew one of the allegations of an assault that allegedly took place in the shower against J.K.
Brief Background
Crown’s Evidence
[10] The Crown called six witnesses: Detective Constable Kyle Mask, the investigating officer, the complainant A.D., T.D. (A.D. and W.K.’s daughter), the complainant J.K., S.V. an ex-girlfriend of W.K. and Dr. C.M. who is J.K.’s family doctor.
[11] The complainant, A.D., was W.K.’s first wife and they were married in 1968 and divorced in approximately 1980.
[12] They had two children of the marriage. T.D., the oldest daughter born in 1972 and a younger daughter born in 1974. T.D. gave evidence at the trial.
[13] The complainant, J.K., was W.K.’s second wife.
[14] There were married in 1992 and divorced in 2003.
[15] J.K. moved in with W.K. in approximately 1988. At the time, there was at least one of W.K.’s children residing there. The eldest daughter, T. D., had either moved out a little earlier or a few months later. J.K.’s son, M.K., (born in 1982) lived with them as well.
[16] In 1997, the family moved to Arnprior so that M.K. could attend high school and the family stayed there for five years.
[17] The charges before the Court arose in 2018 when the police interviewed both complainants, A.D. and J.K., regarding another case. During the course of their interviews, the complainants alleged domestic violence at the hands of W.K. leading to the charges set out in the indictment.
[18] W.K. testified and denied the allegations.
Guiding Principles
[19] The issue that this Court must decide is whether the Crown has proven each of the elements of the alleged offences beyond a reasonable doubt.
[20] W.K. is presumed to be innocent, unless and until the Crown proves his guilt beyond a reasonable doubt.
[21] The obligation never shifts. W.K. did not have to present evidence but in this case he did testify on his own behalf denying that these alleged incidents that form the charges ever occurred.
[22] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence or lack of evidence.
[23] It is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
[24] The presumption of innocence applies to each charge. I must render a verdict on each charge separately after assessing the evidence and applying the applicable legal principles that relate to that charge.
[25] The accused is not required to prove anything.
[26] Therefore, the issue for my determination is whether the events alleged to form the basis of the charges ever took place or have been proven with sufficiently reliable evidence to the point that I am satisfied of this beyond a reasonable doubt. In doing so , I must assess the credibility and reliability of the witnesses.
[27] The indictment alleges that W.K. committed several offences. Each allegation is a separate charge and I must make a separate decision and give a separate verdict for each charge.
[28] Also, when considering each charge, the Court is “not to rely on the evidence of other counts or other uncharged misconduct as proof that the accused is the sort of person who would commit the offence or offences charged”: R. v. M.(B.) (1998), 1998 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.), at para. 42.
[29] In this decision, I will review the evidence of the Crown and defence witness, discuss W.K.’s evidence in accordance with the Supreme Court’s direction under the R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 and then analyze the evidence in support of each count to arrive at a verdict.
Counts
i) An indecent assault as against A.D. between the 1st day of January 1974, and the 31st day of December 1978.
Elements of the Offence
[30] The charge of “indecent assault” existed under the Code (R.S.C. 1970, c. C-34) during the
relevant period of time.
[31] Section 149(1) of the Code read as follows:
(1) Everyone who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years and to be whipped.
[32] The Crown must prove:
that W.K. intentionally applied force to A.D.;
that A.D. did not consent to the force that W.K. intentionally applied;
that W.K. knew that A.D. did not consent to the force that W.K. intentionally applied; and
that the force W.K. intentionally applied took place in circumstances of an indecent nature.
[33] This section 149 was repealed in An Act to amend the Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 8. It came into force on January 4, 1983.
[34] At the time of this alleged offence, indecent assault was not defined. “Indecent” was a question of fact to be determined on a case-by-case basis dependent upon an objective view of the facts and the circumstances. See Swietlinski v. R., 1980 53 (SCC), [1980] 2 S.C.R. 956, 117 D.L.R. (3d) 285.
[35] The defence does not contest that anal intercourse constituted an indecent assault at the time of this alleged offence.
Allegations
[36] A.D. was married to W.K. for 13 years. A.D. believes the family moved to Burnstown when T.D. was six or seven years old. She left the home and separated from W.K. when T.D. was nine years old. W.K. says they moved to Burnstown in 1976, which would mean T.D. was approximately four years old. Nothing turns on this difference as the count alleges a time period from 1974 to 1978 and the allegation is that it occurred while the family was living in Burnstown.
[37] A.D. describes her relationship with W.K. as controlling in that he would demand to know her whereabouts, who she spoke to and why she would be late from an outing. She indicated that she lived in fear day and night and was afraid to argue back or counter anything he said. She described him as very controlling if he thought she was not being honest with him. If she tried to talk back or argue with him he would become aggressive with her.
[38] On a physical level, A.D. alleged that W.K. pushed her around, burned her on her torso and arms to force her to answer his questions. She says he sexually abused her several times.
[39] She indicated that he had asked about a relationship she had with a man she knew as a teenager and he arranged to have a man with a lie detector test come to the house so she could take the test. She said that she passed the test but W.K. did not believe the test.
[40] In one incident which forms the basis of count 1, when they were living in Burnstown, she was in bed and had her nightgown on. He said he wanted anal sex and she told him that she did not consent. He grabbed her by her left breast and shoulders and put her on her knees. She tried to resist. He was aggressive and he displayed explosive behaviour. When she realized that she was not going to be able to stop him she just placed her head in the pillow so that their daughters across the hall in their bedroom could not hear when she screamed.
[41] She believes the time of day would be approximately 10:00 p.m. to 11:00 p.m. and she would have been 32 or 33 years old.
[42] She stated that “basically he just kind of shoved me on to my knees and I was resisting, I can remember that he forced me into that position and kept me in that position. After a couple of minutes there was no point to struggle, I just put my head in the pillow waiting for him to finish”.
[43] When pressed for details, she repeated her testimony that she was shrieking into the pillow.
[44] She says she recalled him putting his hand on her breast and one hand on the back of her head or her shoulder and just pulled her up and forward. The witness closed her eyes when she testified about this incident.
[45] W.K. did not ask her if she wanted sexual interaction. There was never any conversation but she did tell him that she did not want to engage in anal intercourse. She remembers pleading with him not to do it.
[46] To start, they both were in the bed but she does not remember what she was doing to start with and does not recall what he was doing.
[47] She does not think she had fallen asleep and she believes she would have been wearing a nightgown which she usually wore at bedtime and he would not be wearing anything as he normally would not wear anything to bed. J.K. also said that W.K. slept in the nude.
[48] She was not sure whether the nightgown ended up on the floor and assumes that if it did, she put it on again after the incident.
[49] She does not recall him saying anything during the act.
[50] Once it had started, he grabbed her and was being forceful about it and she put her head in the pillow waiting for it to be over. He penetrated her anus with his penis, she believes he ejaculated and then it was over. There was no conversation.
[51] After this, she assumes that she would have gone to the bathroom.
[52] She can see herself wearing the same nightgown curling up in a ball and staying on her side of the bed and there was no further conversation of any kind after the incident.
[53] She stated that she experienced pain at the time and then feeling a bit of pain the next day in the anal area, her breast and her shoulders where he had been holding her.
[54] She recalls the pain in the breast and she says she remembers it being her left breast because he was squeezing it with his hand as he was in the process of entering her.
[55] W.K. and A.D. never spoke about this incident.
ii) W.K. is also charged that he assaulted A.D. between the 1st day of January 1976, and the 31st day of December 1978 and
iii)W.K is also charged that he without lawful excuse pointed a firearm at AD. between 1st day of January 1978, and the 31st day of December 1979.
Elements of the Offence
[56] These two abovementioned counts arise out of the same incident.
[57] Regarding the assault, the Crown must prove the following elements of the offence beyond a reasonable doubt:
That W.K. intentionally applied force to A.D.;
That A.D. did not consent to the force that W.K. intentionally applied; and
That W.K. knew that A.D. did not consent to the force that W.K. intentionally applied;
[58] Regarding the pointing of a firearm charge, the Crown must prove the following elements beyond a reasonable doubt:
That W.K. pointed a firearm;
That W.K. pointed a firearm at A.D.; and
That W.K. had no lawful excuse for pointing the firearm.
[59] A firearm is a weapon with a barrel that can fire a shot, bullet or other projectile and can cause serious bodily injury or death to another person.
[60] To point a firearm means to direct or aim it, intentionally, not accidentally, or absent-mindedly or simply by chance. Pointing involves a choice, an intentional act of directing the weapon towards a person as a target. The firearm does not need to be loaded.
Allegations
[61] A.D. testified that this incident occurred on the day of the parties’ separation. She said that they were living in Burnstown.
[62] On that day, the children did not come home right after school. She said that she learned later that W.K. had arranged for the children to be babysat by a neighbour after school.
[63] When she returned home after work, W.K. confronted her in the living room about her having an affair with C.D. She assumed he had overheard her telephone conversation with C.D. and her plans to leave W.K.
[64] She also learned later that W.K. had been at C.D.’s home earlier to confront him about the affair.
[65] She said there was a heated argument as W.K. became very upset and shouted. He became very violent, pushed her and slapped her and grabbed her and threatened to kill her. He was yelling and screaming at her.
[66] He left the room and returned with a rifle. She said that he used to go hunting but did not know what kind of rifles he used or where he kept them in the home.
[67] W.K. then ordered her to take her clothes off and picked up his rifle and aimed it towards her and said that she was not going to leave him and he was going to kill her. She assumed he had bullets in the rifle.
[68] When asked for more details, she said he was grabbing her shoulders and arms and trying
to hold her while yelling at her. He may have grabbed her hair at the time but she cannot be definite about this.
[69] When he aimed the rifle at her, she dove under the coffee table. She does not remember hearing the click and she does not recall anything after that. He did not fire the rifle and she does not know where the rifle went after the incident.
[70] When testifying regarding this incident, she appeared upset.
[71] She says this took place in the living and dining room area in their Burnstown home.
[72] She says he grabbed her, shook her, trying to get her to answer him and tell him whether it was true that she was having an affair and what were her plans and what did she think she was doing.
[73] He grabbed her shoulders and arms and trying to hold her and yelling and may have grabbed her hair at the time.
[74] It felt very explosive, and she was absolutely terrified and she had no idea what was going to happen.
[75] He slapped her a couple of times “maybe a few”, does not recall the number of blows towards her head and face.
[76] She described the rifle as : long and pointy, brown, looked like a gun, metal, had previously seen it as a hunting rifle which he used to hunt. She never saw him fire a rifle. She says she never saw him with a fake gun.
[77] She recalls seeing W.K. standing there with his back to the window and she was on the opposite side three or four feet away and she remembers being scared and diving to get under the coffee table.
[78] She recalls the pointy end directly aimed at her and the end had a metal colour
[79] She remembers leaving the home that night.
[80] He threw her clothes on the lawn in the presence of the children. C.D. came to pick her up.
[81] Under cross examination, she did not recall the day of the week and confirmed that W.K. had told her that he had spoken to C.D. and he accused her of having an affair with him.
[82] She concluded from this conversation that he had listened in on one of her conversations with C.D. She denied that she had told C.D. that she would get him out of the house and C.D. would move in. She testified that W.K. was seeing someone else.
[83] She admitted that she wanted to commence a relationship with C.D. and made arrangements for C.D. to pick her up along with her belongings that night.
[84] She states that he only told her to get out when the children came home. He threw her stuff onto the yard and the children were screaming.
[85] She states that she left that night when C.D. came to pick her up. A.D. eventually married C.D.
[86] In her statement to the police, she did not mention that W.K. had forced her to undress.
[87] She did not tell anyone immediately about the firearm except a policeman in Renfrew who lived in Burnstown. She saw him in his car a few months later and she asked him that if her ex-husband had a gun and threatened her, would he want to know. She did not provide details. The officer said that there was nothing he could do about it as it was too late as she had not made a complaint at the time. In re-examination, she said she spoke to this officer six months after the incident. Later she states it was two months later.
[88] She does not remember the name of the officer but remembers the officer telling her that since the incident happened months ago and since she had not filed a complaint, that it was too late.
[89] She had not previously mentioned the discussion with the Renfrew police officer but states that she had told Detective Wendy Saunders, investigating the charges before this Court, in her first conversation with her before she made a statement. Detective Saunders apologized that the police force had let her down.
[90] The Defence conceded as an agreed statement of fact that A.D. mentioned this discussion with the Renfrew police officer to Detective Saunders on September 26, 2018 during her telephone conversation with her when she spoke to her on the phone in 2018 and she made a note of it.
[91] She only told her husband C.D. about this incident seven or eight years later.
[92] She admitted that she commenced a divorce based on adultery rather than cruelty on the advice of her family law lawyer. She recalls having a conversation with her lawyer about the cruelty.
[93] She did not report this incident the police, did not mention it in the divorce pleadings did not talk about the gun nor the anal sex incident.
[94] She states that both her lawyer and his lawyer were aware of the violent behaviour and abuse as she had spoken to them about it.
[95] She admits to leaving the children in his care and did try to obtain custody and sort out better visitation arrangements. But she had limited visits, and when she tried to collect them for access there would be notes on the door “we hate you” and her cards were returned to her.
[96] She felt that she could not keep herself safe and he would not let her talk to the children on the phone and he would call when the children were with her and there would be whispered conversations. She knew he would listen in on phone conversations.
[97] She believed that the children would be ok with him as he was never violent with them and she liked his new girlfriend, S.V. who was living with him.
[98] She moved to British-Columbia in 1982 or 1983.
iv)W.K. is also charged with sexually assaulting J.K. between the 1st day of January 1988 and the 31st day of December 2001 at the Town of Arnprior
[99] The Crown must prove the following essential elements of the offence of sexual assault beyond a reasonable doubt:
i) that W.K. intentionally applied force to J.K.
ii) that J.K. did not consent to the force that W.K. intentionally applied;
iii)that W.K. knew that J.K. did not consent to the force that W.K. intentionally applied; and
iv) that the force W.K. intentionally applied took place in circumstances of a sexual nature.
[100] If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements then I must find W.K. guilty of sexual assault.
Allegations
[101] J.K. is 59 years old and works part-time in housekeeping at a retirement home in Arnprior where she has been working for the past 15 years.
[102] She was married to W.K. from 1992 until 2003 when they were divorced.
[103] After the separation, she did reconcile with him for three months when she went to live with him in his White Lake rural property.
[104] They met in 1989 when her son M.K. was approximately seven years old.
[105] Originally, she moved into W.K.’s home on 7th Concession in McNab with her son M.K. One of W.K.’s daughters was residing with them. W.K.’s other daughter had already moved out.
[106] W.K. and J.K. and her son eventually moved to Arnprior at around the time M.K. was starting high school.
[107] She described W.K. as controlling as he regularly wanted to know her whereabouts. While at the home on 7th Concession, she discovered that he had a feature under his desk in his home office that permitted him to listen in on telephone conversations.
[108] When they lived in Arnprior she discovered that behind a locked door in the basement was an instrument that permitted him to tape telephone conversations.
[109] Photos of this instrument, the tape recorder, the locked door and the room where this equipment was located were entered into evidence.
[110] The Court also entered into exhibit an audio tape which included four hours of phone conversations. J.K. identified herself as one of the individuals on this tape. She confirmed the existence of other tapes.
[111] J.K. did not consent to the taping of her conversation. She indicated that when she confronted him with this he told her that it was his phone line and he could do what he wanted.
[112] She indicates that after the divorce, she and W.K. were still friends for the sake of her son, M.K., as M.K. had a relationship with W.K.
[113] She did not want him charged.
[114] With respect to the sexual assault, J.K. alleges the following:
− one evening she said that they had had an argument but she does not recall the details.
− she went to bed and W.K. stated that he wanted to have sex;
− he started to get close;
− she told him no once or twice;
− she was on her side facing away from him;
− he put her on her stomach and she had her hips in the air;
− he penetrated her vagina with his penis;
− he ejaculated;
− he was not wearing a condom;
− she told him no on at least two occasions;
− she remembers telling him after it was over that “now I know how it feels to be raped”;
− she does not recall whether she was wearing anything as she usually sleeps in the nude;
− she remembers telling her doctor, Dr. C.M. about this shortly after it occurred;
− she broke down when she told the doctor; and
− she recalls that it occurred when they were living on 7th Concession.
[115] She does not recall the year, day, season, time or what he said.
[116] At trial, she was visibility upset and a break was required. She indicated that she felt uncomfortable discussing the details of the sexual assault.
v) W.K. is also charged that he assaulted J.K. between the 1st day of January 1988 and the 31st day of December 1990 at the Town of Arnprior
Allegations
[117] J.K. also alleges three assaults. As stated above the Crown is not proceeding with the
alleged assault which occurred in the shower.
[118] She does not recall the year, date or time of the assaults.
[119] She alleges that one assault occurred when she was walking up the stairs. She states:
− W.K. was right behind her and pulled her coat;
− She was scared as she felt she was going to fall backwards;
− In reaction to this, she kicked him;
− He had his back to the wall; and
− He then punched her in the stomach.
[120] She describes the blow to her stomach as a memorable event as this was the first time that she experienced a blow like this.
vi)W.K. is also charged that he assaulted J.K. between the 1st day of January 1991 and the 31st day of December 2001 at the Town of Arnprior.
[121] J.K. alleges that another assault occurred as follows:
W.K. was dragging her from the bedroom by her feet to the bathroom;
He was trying to dunk her head into the toilet;
She believes she resisted and he was not able to do so;
She remembers that he was able to put her feet in the toilet and her feet got wet;
She told her neighbour across the street, Heather, who examined her head as she had bumped it in this incident; and
She did not tell the officer when being interviewed in 2018 about Heather as she did not want to drag someone else into this.
Detective Mask
[122] Detective Constable Kyle Mask was the investigating officer in this matter. He has been working with the Ontario Provincial Police (OPP) for 11 years.
[123] While investigating a completely separate matter, he was given the name of J.K. from his supervisor.
[124] He met with J.K at her home and recorded the interview on audiotape on September 25, 2018. He was there to discuss the history of the relationship. She was concerned that W.K. was going to be charged. At no time, did J.K. state that she wanted W.K. charged.
[125] He then met with her a second time at the police station on October 5, 2018.
[126] J.K. told him that she had been assaulted in the shower and on the toilet and on the stairs and she was sexually assaulted.
[127] The officer admitted that her son M.K. was within earshot when the first statement was provided by J.K.
[128] She did mention that she remembers telling W.K. that after the sexual assault occurred that “I now know how it feels to be raped.”
[129] As a result of these allegations, W.K. was charged. J.K. was upset that the police were charging him and she was told that it was police protocol to charge individuals involved in domestic violence.
S.V.
[130] She knew W.K. when she was approximately 32 years old. She knew him for four years and they lived together for a period of time.
[131] She met A.D., his first wife, and saw her a few times. She knew A.D. as an acquaintance.
[132] A.D. spoke to her about abuse. One time when she was on the street in Almonte A.D. told her that when W.K. found out that she was going to leave him, he pointed a gun at her and told her that she was not going anywhere. A.D. had told S.V. that the incident occurred in her house.
[133] A.D. told her that “you are welcome to him, that is the person he is”.
[134] This would have occurred after her own daughter was in university which was 1990 to 1993.
[135] S.V. did not have any further contact after A.D. moved to British-Columbia.
[136] S.V. never told W.K. about this conversation.
T.D.
[137] T.D. is the daughter of W.K. and A.D.
[138] She was nine years old when her parents separated. The family was living in Burnstown at the time. She recalls that her parents’ relationship consisted of a lot of yelling and that her father was definitely “the boss”.
[139] She did not witness any violence but recalls the incident set out below.
[140] She said on one occasion her father who was naked came down stairs and told her sister and her to come up to the bedroom.
[141] Their mother was on the bed crying and nude.
[142] The father proceeded to name body parts on her mother and the mother was very upset and trying to cover herself. The father would not allow her to do so.
[143] She remembered her mother on the bed naked but A.D. did not make an allegation regarding this incident and this is not before the Court.
[144] She recalls when growing up that her father worked for Bell.
[145] She says that he would listen to phone calls and that he would go to the Bell office and listen that way and that there was something in the basement.
[146] She and her sister would go with him to his office and would listen to other people’s phone calls. She knew that W.K. had an area in a locked room in the basement
[147] When she asked him why he was listening to calls he would say it would come up when something was not right with the girl he was with at the time.
[148] T.D. does not know if W.K. told her he was taping M.K.’s (J.V.’s son) calls.
[149] When asked who did he tape, she said he “did me, S.V., a girlfriend called D., and my sister.”
[150] She says she reconnected with A.D. when she was 18 years old and worked out the issues regarding why A.D. left the family.
[151] She said she lived with JK and her father on concession 7 for a couple of months but not when they lived in Arnprior.
[152] She remembers that after the separation, there were Court hearings and a couple of visits.
[153] Her father would tell her how awful her mother was and that the reason for the upset in the family was due to her. He was trying to make her sister and her believe that their mother was “a monster” and they could not survive without him.
[154] T.D. was not around a lot when he was with J.K. as she was estranged from her father during that period of time.
[155] In cross-examination, she said that her father said that her mother was bad and that she was with people who were gay and people with drugs and that for her to be safe she needed to say that she did not want to visit her mother.
[156] She does not recall hitchhiking with her sister to return home after a visit with her mother.
Dr. C.M.
[157] Dr. C.M. is a medical doctor and J.K. has been one of her patients since 1991.
[158] She was able to refresh her memory by reviewing her notes.
[159] She indicates that she met with J.K. on November 18, 1993 when she came into her office visibly upset.
[160] According to her appointment notes she described J.K.’s demeanour as: “she arrived looking very distressed and upset”.
[161] According to her note, she was upset because she described a terrible abusive relationship with her husband and her note states: “Husband being very controlling and episodes that were causing her a lot of distress”.
[162] Her notes reflected that: “he listens to her phone, follows her, demands sex 2 or 3 x a night, physically abused on one evening” and had gone to her next door’s neighbour” and “she disclosed that he had raped her several times.”
[163] She was upset as a result of something preceding her meeting that day.
[164] There was a follow up appointment on November 22, 1993 and the notes reflect that J.K. had done lots of thinking over the weekend, she was not sure whether to stay or go and she was calmer.
[165] The notes indicate that she talked with her husband as there were decisions to make and she approached her husband regarding joint counselling.
[166] There is nothing in her notes regarding injuries.
[167] The notes for a visit on October 3, 1994 indicate that they discussed marital discord and options.
[168] There was a visit on December 22, 1994 when her locum wrote some notes but they were not read into Court.
[169] She referred to her notes for 1999, where J.K. told her that she was trying to divorce W.K. and then in 2002, separating from her husband.
[170] In her October 4, 2018 notes, Dr. C.M. wrote: “she told me that the police were pressing charges and it was not her choice to do so:
Defence Evidence
[171] W.K. testified and denied all allegations.
[172] He worked for Bell Canada for 30 years and after retirement worked at various jobs with companies dealing with communications.
[173] At this time, he communicates with his youngest daughter but not with T.D..
[174] When he married A.D. in 1968, they were living in Montreal. Their two children were born in the province of Quebec.
[175] They spent a year in Toronto but returned to Quebec. They moved to Ontario in 1975 and lived in Kanata for one year and then moved to Burnstown in 1976 where they bought a house.
[176] He had anal sex once in his life with another individual. He tried it a second time four years later but did not proceed as he said he “failed to launch”.
[177] He listened to one phone call that she made as he suspected that something was on between A.D. and C.D.
[178] He did speak to C.D. earlier that day. Previously he had always welcomed him into his home and then on that day he told C.D. he was no longer welcome.
[179] He said the phone call that he overhead was A.D. telling C.D. to give her two weeks and she will have W.K. out of the house and told him to “lay low”.
[180] He says that that he saw C.D. at lunch time downtown and arrived home around 5:00 p.m. and A.D. arrived 10 to 15 minutes later. He imagined the children were with the babysitter that had been arranged by A.D.
[181] He said that they had a conversation as he was standing in the doorway between the kitchen and dining room. He told her that he had heard the whole conversation and that he could not take this and that he was not leaving and “if I were you I would get the hell out”.
[182] He states that he believes the children were there afterwards and remembers them watching TV in the den.
[183] He denies that he physically assaulted her or threatened to kill her and did not tell her to take off her clothes.
[184] He admits to previously possessing five or six guns used for hunting which were stored in the wall unit in the basement. At the time of this incident, he had one rifle left. He says he only went hunting once for moose years ago. He had sold the guns 1.5 years before and gave up hunting. He had one single shot ranger shotgun downstairs locked up and not loaded. The ammunition was stored separately.
[185] On that day, he says he told A.D. to leave and does not know if someone picked her up as it was dark and they lived on 4.5 acres in bush.
[186] He denies throwing out her clothes but rather he “dropped” them around the doorstep.
[187] He states that C.D. and A.D. picked up her stuff the following day Friday or Saturday.
[188] He states that he knows this incident occurred on a Thursday. He says that he recalls that two days earlier, C.D.’s wife had called him asking if he wondered whether there was something going on between C.D. and A.D. He remembers that call from C.D.’s wife being on a Tuesday.
[189] When A.D. came to pick up her clothes, she told him that the children could stay with him.
[190] He stayed in Burnstown for two months then sold the house. The paternal grandfather came to help out during the week and would drive back to Montreal for weekends.
[191] He moved to Carleton Place for one year then moved to Almonte. At the time his partner was S.V.
[192] The children did spend a couple of weeks with A.D. in Renfrew. She was living with C.D. and another couple and he had concerns.
[193] He says he received a call from OPP that the girls were found hitchhiking back home and told T.D. that she had to go back to her mother’s home.
[194] The children went for a visit with A.D. on one occasion. He denies turning the children against their mother. He took T.D. to counselling twice per week. T.D. thought it was her fault that her parents were separating.
[195] He saw A.D. twice after that at each of their daughter’s wedding.
[196] He says that the first time that he heard T.D.’s allegation of him showing her and her sister body parts of their mother’s naked body was in Court at the trial. Under cross-examination he stated he did not recall it being said at the preliminary hearing held on July 10, 2019.
[197] He met J.K. in 1986 or 1987 when he was living in Bells Corners. He commenced building a home on 7th concession at McNab and it was finished in 1988.
[198] J.K. moved in months later with her son. He testified that both daughters were there but the oldest daughter, T.D., moved out two months later. The youngest daughter moved out when she was married two or three years later.
[199] He had a boarder for four or five months.
[200] In June 1997, J.K. and W.K. discussed moving into town for five years as M.K. was in hockey and they were driving from the country to town regularly. J.K. had also preferred that M.K. attend school in town. They would not have to drive the children to school if they were in town. M.K. was also getting his driver’s licence.
[201] In town, M.K. attended Arnprior H.S. and took the school bus to school.
[202] The 7th Concession property was sold and they bought a house on 7th avenue in Arnprior
[203] A year or two after moving into Arnprior he believed M.K. was taking drugs.
[204] The orange instrument identified by J.K. in Exhibit 1 photos was actually a test set that he used as a phone once it was hooked up.
[205] He taped calls for about a month after he found a bag of marijuana in M.K.’s dresser drawer. His intent was to listen to M.K.’s calls to catch the person who was selling the drugs to him. He had no intention of taping other calls. He had no reason to tape J.K.’s calls.
[206] He also testified that he went to the jumpers and monitored the line from 1979 to 1980 in his home. He did not believe it was illegal as this was his own line.
[207] He set up a voice activation on the machine for incoming and outgoing calls. He states he never recorded other individuals’ conversations other than those involving M.K.
[208] Regarding the alleged toilet incident with J.K., he recalls two incidents involving the toilet:
i. once he had to carry J.K. to the washroom after her sister’s wedding as she was “loaded”; they had stopped three times on the way home for her to vomit. At home, he helped her at the toilet, she was on her knees and her head was near the toilet; and
ii. in a second incident, he was in bed having tea and she was on the toilet holding her stomach. She had issues with bowel movements and had not had one for four or five days. She had a blockage. She had fallen to the floor and asked him for his help. She held one buttock open while he wet his finger to get the stool out. She did tell M.K. about it later who remarked to him that this was true love.
[209] Regarding the allegations of J.K. that he assaulted her when she was descending the stairs, he describes a different scenario. He said that they were arguing at the home on 7th line. He was descending the stairs with a cup of tea. He was about four steps from the bottom of the stairs when he states that she shoved him and he landed on the floor. He got up and pushed her back. He said that he told her that this was “a bad f…move”. With his open right hand he pushed the soft area above her pelvis area. She said she was going to call the police.
[210] He built a log cabin on 9th concession in the White Lake rural area. He was with another woman, D., for one year.
[211] J.K. reconciled with him for three months when she came to live with him in the log cabin in the rural area of White Lake.
[212] He denied all allegations, including the alleged sexual assault against J.K. and the indecent assault against A.D.
[213] Under cross-examination, he stated the following:
He says that he had no inkling that A.D. was having an affair with C.D. until he listened in on the phone call;
Earlier in their marriage while the couple were living in Montreal he had her complete a lie detector test;
He says the lie detector test was inconclusive in that it said she was having an affair but not conclusive as to whether it was someone at work;
He then said he believed she was having an affair for about five years so that night, he wanted her to leave;
He then insisted he found about the affair when he listened to the phone call between A.D. and C.D.;
He says she was very evasive and snappy for three or four months before that and he knew something was wrong;
He thought that possibly she was having an affair when he listened to the phone call;
He denies that he took the children to the Bell office and allowed them to listen in on calls and he is not allowed to take people into the Bell office as doing so would have him fired;
He was adamant that he did not record phone calls until M.K. was in high school because he suspected M.K. was involved in drugs;
T.D. could not have seen a recording device as she was not living at the home, neither child was there; (which appears to be true as it is not disputed that they did not move to Arnprior until 1997 and by that time T.D. had already moved out and the younger daughter would have been 23 years old and already married)
He admitted to having the one rifle - a 16 gauge single shot ranger used mostly for birds and it was operable;
He admits that he was upset, angry and frustrated that A.D. was having another affair;
He was going to tell her to leave and worried how he was going to raise the girls alone;
At the time he was with A.D., he admitted that he had had an affair with S.V. but that it was not happening later at the time that they separated;
At the preliminary hearing held on July 10, 2019, he did not recall hearing of the incident T.D. related regarding the time when both parents were naked and A.D. was on the bed;
He says he never tried to keep the children away from A.D. after the separation;
He said he encouraged them to get together “get more with sugar than salt” and denies painting the mother as a monster to the children
He never made access difficult;
When the children returned home from their first access to their mother, they were not happy and he promised that he would not force them and when A.D. was living in the area before she moved to B.C., A.D. only saw the children once.
He stated that he was not encouraging nor discouraging the children regarding access; and
Admitted in cross-examination to being agitated because the Crown was telling him “what I am or what I am not”.
Analysis
General Comments
[214] Firstly, I must be careful not to hold the defence evidence to a level of scrutiny higher than that of the Crown.
[215] The verdict must not be based on a choice between the evidence of the accused and the Crown’s evidence. As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, this type of approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt.
[216] Secondly, with respect to the allegations of sexual assault on J.K. and indecent assault on A.D. I am guided by R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para.65, where the Supreme Court stated that there is no predictability or rule as to how victims of sexual assault will behave and that delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant due, in part, to a recognition that the reasons for delay are many, including, at least embarrassment, fear, guilt or a lack of understanding and knowledge.
[217] Thirdly, I must assess credibility and reliability very carefully. At this point, it is important to explain the distinction between these two concepts.
[218] Credibility has to do with the honesty or veracity of the testimony of a witness.
[219] Whereas, reliability has to do with the accuracy of the testimony of the witness. The reliability of a witness’ testimony is often gauged by the ability of the witness to observe, recall and recount the events at issue. See R. v. H.C., 2009 ONCA 56. para. 70 of OCA decision in R. v. H.P.S., 2012 ONCA 117, [2012] O.J. No. 748,
[220] In this case, the Court heard from witnesses who testified about incidents that occurred long ago. Their recollections were incomplete. There is little to corroborate the oral testimony of the principal parties.
[221] A good description of the difference between credibility and reliability was provided by the Court of Appeal in R. v. C. (H.), 2009 ONCA 56, at para. 41, where Justice Watt said:
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately: i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.
[222] As here, reliability is affected as the witnesses were testifying about events which occurred decades ago. The passage of time may have an effect on the ability of the witness to recall events accurately.
[223] Given that there was no evidence from eye witnesses nor any medical or physical evidence, an assessment of the credibility and reliability of the witnesses is key.
[224] There is no allegation of collusion amongst the witnesses and I do not find any evidence of collusion.
W.D. Analysis
Introduction
[225] Although it is a fundamental principle that an accused is not required to testify, where he chooses to do so, as W.K. did in this case, the law in R. v. W. (D.) requires that I take the following approach:
If I believe W.K.’s evidence that he did not commit the offences, I must find him not guilty;
Even if I do not believe W.K.’s evidence, if it leaves me with a reasonable doubt about his guilt, or an essential element of an offence with which he is charged, I must find him not guilty of that offence; and
Even if W.K ’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.
Defence Position
[226] The Defence submits that W.K. was credible, cogent, logical and reasonable and his testimony remained unshaken after cross-examination. The defence states that there is some overlap of the evidence regarding the incident involving the pointing of a firearm and assault allegations:
− W.K. went to C.D.’s residence;
− W.K. was angry about affair;
− On one occasion, he had tapped into the phone line and heard A.D. and C.D.;
− They both met at home; and
− W.K. and A.D. had a verbal confrontation and he admits he was angry.
[227] Regarding the Crown’s witnesses, the Defence raises these concerns.
[228] He questions why A.D. did not even tell C.D. about the gun point incident until seven or eight years later. Was she not concerned about his safety when C.D. helped her retrieve her items from the home on the day of the separation?
[229] Regarding J.K.’s allegation of sexual assault, her recounting this to her Doctor was generic with no details.
[230] He portrays the stairs incident as a “consent fight”, i.e. a minor assault during an argument.
[231] J.K.’s allegation of the assault involving the toilet is a very hazy recollection. Her testimony is not credible as she alleges that he dragged her to the toilet for no reason and does not provide evidence of how her feet got wet when he was trying to put her head in.
[232] In addition, J.K. only disclosed the fact that she had told a neighbour called Heather about the toilet assault after it had occurred. However, she only raised this possible witness for the first time at trial, not during her statement to the police, or at the preliminary hearing.
[233] J.K. moved back into W.K.’s residence in the isolated rural location and this is not indicative of a person who was abused. She remained on good terms after separation with W.K. again not a sign of a woman who was abused.
[234] T.D.’s evidence was of little assistance. She never saw violence. She recalls listening in on phone calls but W.K. says he was not allowed to let others into the Bell building.
[235] S.V. says A.D. told her about the gun incident but A.D. in her testimony does not mention telling S.V.
Discussion
First and Second Steps of W.D. Analysis
[236] As will be explained below, I do not believe the denials of W.K. nor am I left with a reasonable doubt by his evidence regarding the counts.
[237] W.K. denies these complainants’ characterization of his behaviour as controlling and abusive.
[238] He portrays himself as someone striving to be a good father. He took over full time parenting of his two daughters when his first wife A.D. left the family and eventually moved to B.C.
[239] Certainly, W.K. raised his two daughters as a single father after his separation from their mother.
[240] In addition, he assisted in the parenting of M.K. who was J.K.’s son from a previous relationship.
[241] When he was worried that M.K. was regularly using marijuana, he wished to discover who was selling him the drugs and states that is the reason for setting up the equipment in the Arnprior home to record conversations.
[242] The Court finds that that there are certain credible portions of his evidence as he was prepared to make admissions that would not put himself in the best light.
[243] At the time of their separation when he discovered that A.D. was having an affair, he admits that he was furious and outraged. When he believed that A.D. was having an affair earlier in the marriage, he admits to telling her that she had to submit to a lie detector test.
[244] He admits to owning a gun but states that it was stored in full view locked up in the middle of the room in the basement.
[245] He admits to having a short fuse and temper but never resorted to physical violence.
[246] He admits that there was a stairs incident and they had been arguing but denies he was the perpetrator.
[247] W.K. stated he heard T.D.’s allegations regarding her mother being nude in the bedroom and W.K. telling her and her sister about body parts on their mother for the first time at trial.
[248] The Crown urged me to find that his demeanour in cross-examination was argumentative. This shows, she argues, that he has a short fuse and therefore, apt to lose his temper which could lead to acts of physical violence.
[249] In R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210, the Ontario Court of Appeal found that complainant’s demeaner can be a consideration provided that it is not over-emphasized or treated as a controlling factor in the assessment of the complainant’s credibility and reliability. At para. 34, the Court stated:
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.
[250] Even though I found W.K. short-tempered and agitated during his cross-examination, the Court will not jump to the conclusion that his temper can lead to assaultive behaviour.
[251] That is speculative reasoning and I decline to make that finding.
[252] Nevertheless, there were a number of external inconsistencies which affects his credibility;
He minimized his listening in and monitoring of phone conversations indicating it started in 1997 to check in on M.K. for one month and on one occasion with A.D. and C.D.;
In contrast, there is external evidence that suggests his listening in on calls was taking place much longer than that:
• T.D. testified that she and her sister were listening in when they were young;
• T.D. testified that she was aware that W.K. listened in other other people’s conversations including herself, her sister, S.V., and his girlfriend named D.; and
• J.K. found the recording device when they moved to Arnprior in the basement behind a locked door.
- W.K. says he never recorded any other individuals’ conversations than M.K. but the Court finds other external evidence that suggests that this is not true:
• Exhibit 2 which is an audio tape where J.K. identified her voice on a call and at least two other individuals;
• From the review of exhibit 2 which is the audio tape of 4 hours, it is apparent that a number of individuals’ telephone conversations were recorded; and
• T.D. says that he was listening in on her conversations and her sister’s, his girlfriend D. and S.V.
- Also, I do not find that he was credible regarding his denial that he portrayed A.D. as a monster. This is in contrast to:
• T.D. confirmed that A.D. was portrayed as a monster to the children;
• A.D. confirmed the number of efforts she made to gain access to the children after separation and how he made it difficult to have time with them and facing a sign on their door saying “We hate you”; and
• He went off on a tangent to put A.D. in a negative light. For example, he recounted how T.D. went to B.C. to be with her mother and in no time returned home, which suggests that it did not go well with the mother.
W.K. says he did not encourage or discourage children, but the children only saw their mother once when she lived in the area until she moved to British Columbia two years after the separation; and
I find it implausible that he would have “dropped” A.D.’s clothing outside the home after a volatile argument over her affair on the day of separation where he admitted he was outraged. A.D.’s version that he threw her clothes outside was credible.
[253] In addition, there were internal inconsistencies.
[254] Regarding the assault allegation on the stairs, W.K. indicates that he was carrying a cup of tea descending the stairs. However, in his detailing the incident in chief and cross-examination, he does not mention the cup of tea again: not whether it fell or spilled or broke. He speaks of his falling backward on the landing and retaliating by pushing back. There is no further mention of the cup of tea that he says he was carrying in his hand.
[255] Another internal inconsistency was that he repeated in chief that he had only taped calls for one month while in Arnprior to attempt to discover the drug dealer who was selling drugs to M.K. However, also in examination-in-chief, he stated that he went to the telephone jumpers and monitored the calls from 1979 to 1980. He said that he did not believe that this was illegal as this was his own line.
[256] For the aforementioned reasons, I am not left with a reasonable doubt under steps 1 and 2 of the W.D. analysis
Third Step of W.D. Analysis
Introduction
[257] I now turn to the third step under the W.D. analysis.
[258] W.K.’s evidence was articulate, sometimes a little agitated under cross-examination but responsive to the questions asked.
[259] As stated in R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749, the Court can look to the evidence of the Crown as a whole in assessing W.K.’s denials. The Court stated at para 53:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[260] As stated in R. v. R.E.M. 2008 SCC 51, 2008 S.C.C. 51, at para. 66, where a complainant's evidence conflicts with that of an accused and the trial judge gives reasons for accepting a complainant’s evidence, it follows:
…of necessity that [the trial judge] rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.
[261] In this case, having carefully reviewed all of the evidence and my rejection of the accused’s evidence and as discussed below my acceptance of the complainants’ credible evidence, I have no reasonable doubt with respect to counts 1, 2, 3, 4 and 5 of the indictment.
[262] I am alive to the some of the frailties of the complainants’ evidence with respect to reliability due to the passage of time.
[263] In R. v. Gostick 1999 3125, the Ontario Court of Appeal said at paragraphs 15 and 16:
The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin 1988 8 (SCC), [1988] S.C.J. No. 80; (1988), 44 C.C.C. (3d) 193 (S.C.C.). This is particularly true where the Crown's case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility and reliability. As Rowles J.A. emphasized in R. v. R.W.B., [1993] B.C.J. No. 758, 40 W.A.C. 1 (B.C.C.A), these issues are not to be determined in isolation. She said at p. 9:
Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented. [Emphasis added.]
[264] In Gostick, an important consideration in the determination of credibility is the extent of consistency of a witness’s testimony within itself and with other evidence that the trier of fact accepts. That is, whether the evidence is contradicted by other uncontroverted or proven evidence. If there is found to be a contradiction, the trier must then determine the seriousness of the contradiction, that is, whether it involves a minor or peripheral matter or whether it is a material inconsistency that goes to an essential element of the Crown’s case.
[265] The Crown is not required to point to something inherently contradictory or demonstrably false in the accused’s evidence in order for his evidence to be rejected. The complainants’ evidence must be tested in light of all the other evidence presented and the Court is not to assess individual items of evidence in isolation. See R. v. Morin (1988), 1988 8 (SCC), 44 CCC 193 (S.C.C.).
[266] As will be discussed below, I find that W.K.’s evidence when stacked against the other evidence led by the Crown, does not leave me with a reasonable doubt regarding counts 1, 2, 3, 4 and 5.
Count 1
[267] I found A.D. to be a sincere and well intentioned witness who did her best to truthfully recall and recount the events which occurred over 30 years.
[268] It is noted that a positive feeling of the complainant’s credibility is not in and of itself enough to support a conviction. See R. v. Stewart (1994) 7208 (OCA)
[269] The focus here is the reliability of her evidence which can be affected by a number of factors such as a main one here, the passage of time. The ability to recall details and specifics have been impacted by the length of time since the alleged incidents.
[270] She certainly had some issues with some recall but I find that any inability or difficulty that the witness had in remembering events seemed genuine, and did not seem made up as an excuse to avoid answering questions. She was consistent in the core details of the indecent assault.
[271] A.D. described W.K. as abusive and controlling. She was credible on this testimony and did not exaggerate but rather appeared to find ways to describe her life with him.
[272] It is of no consequence what her family law lawyer told her not to claim the abuse as a ground for divorce. I accept as credible that she disclosed the abuse to her lawyer.
[273] Courts should be cautious about placing any weight on the fact that A.D. did not complain of the sexual assault in a timely way. This is based on a stereotype and assumes that all victims react in a certain way. R. v. W. (R.), at para. 30.
[274] I note her demeanour that showed her discomfort in relating the allegation of indecent assault and agreed that she was responding to “hard questions”.
[275] I accept her evidence regarding the details of that evening when she was asked about whether she wanted anal intercourse, and despite her non consent, W.K. forced her by putting her on her knees and penetrated her anus with his penis.
[276] She recalls struggling and when she realized that she could not resist him, she put her head in her pillow to muffle her screams.
[277] She recalls that it occurred while they were living in Burnstown and that she was 32 or 33 years old.
[278] She did not guess at answers and in chief, she asked the Crown to repeat or rephrase questions. She admitted when she could not recall an event and had to review the statement she provided to the police in September 2018.
[279] She admitted that she was guessing as to whether her nightgown ended up on the floor.
[280] Her evidence that he was likely naked because he usually slept in the nude is consistent with J.K.’s evidence.
[281] Her failure to recollect what either her or W.K. was doing prior to the act, is explicable given the passage of time.
[282] I do not find inconsistencies in her evidence, either internally or externally.
[283] In cross-examination, she admitted to not remembering further details and was unshaken after cross-examination.
[284] She admits to not telling anyone about this incident in a timely fashion.
[285] It is an error in law to rely upon stereotypical views about how victims of sexual assault would behave. See. R. v. A.BA., 2019 ONCA 124, [2019] O.J. No. 833 5. The Court warned that resorting to what one can describe as “common sense” can mask reliance on stereotypical assumptions. Her delay in reporting this indecent assault does not, in my view, lessen her credibility.
[286] Therefore, I find that the Crown has proven count 1 beyond a reasonable doubt: i.e. that W.K. inflicted intentional force on A.D. without her consent, and he knew that she was not consenting and that, at the time, the act of anal intercourse, in and of itself, qualified as one of an “indecent assault”.
Counts 2 and 3
[287] This incident is described as a very violent and life-threatening event. A.D. described it as a terrifying event and she appeared upset when recounting the details of the last day when he confronted her about her affair.
[288] She was credible in her evidence and was prepared to admit when she could not rely on details. She describe his explosive reaction to her in detail.
[289] She was consistent in her details of the events leading up to this incident and what occurred during the incident.
[290] She did not try to guess and speculate on responses to questions.
[291] She had difficulty testifying in that she said she felt uncomfortable when describing this incident.
[292] She never wavered from her portrayal of the incident.
[293] She conceded points and confirmed that he portrayed her as a monster to the children.
[294] The gaps in her memory of what occurred decades ago are understandable and go to some of the reliability of the relating of the facts.
[295] Her testimony on this specific event was not seriously challenged.
[296] The timing of the complaint of assault and pointing of the gun does weigh into the fact that she did not make a formal complaint. This of course affects what other evidence could have been available to the Crown had this been prosecuted in a timely fashion.
[297] However, it is concerning that after experiencing such a traumatic event why did she not tell C.D. about the gun when he was coming to the house right away. Her explanation that she was concerned that she could leave with her stuff that night and that C.D. was there and available.
[298] The failure to not tell C.D. about the incident right after it occurred does affect her credibility and reliability about this event.
[299] I do not find she has provided a satisfactory explanation. Would not an irate husband with a rifle pose a risk to C.D. who was coming to the house?
[300] Yet, this incident occurred over 30 years ago and the lack of a satisfactory explanation could, in part, be explained by not being able to provide more details today. In addition, this Court considers the fact she was anxious to remove herself from this volatile situation.
[301] A.D. told a Renfrew police officer about the incident a few months later. In addition, S.V. said A.D. told her about the incident although A.D. does not recall disclosing it to SV.
[302] Prior consistent statements are not admissible for the truth of its content. This is because the repetition of a statement does not mean that it more likely to be true.
[303] As stated in R. v. Vassel 2018 ONCA 721 at paras. 124 and 125:
[124]An allegation of recent fabrication need not be explicit; rather, it is sufficient if it is evident from the circumstances of the case: R. v. O’Connor(1995), 1995 255 (ON CA), 25 O.R. (3d) 19 (Ont. C.A.), at p. 28, leave to appeal refused, [1995] S.C.C.A. No. 460; R. v. Kailayapillai, 2013 ONCA 248, 115 O.R. (3d) 363, at paras. 40-41, leave to appeal refused, [2014] S.C.C.A. No. 35. On the other hand, an allegation of recent fabrication does not arise from an allegation of a fabrication simpliciter, or where the allegation is that an accused, as the person who committed an offence, is lying to avoid conviction for that offence. A bald allegation of fabrication does not amount to an allegation of recent fabrication because essential to the latter is an assertion that at some identifiable point in time the witness began to make the claim being challenged. For example, the allegation may be that a particular cause or event was the genesis for the fabrication: Kailayapillai, at paras. 43-45. Proof of a consistent statement made prior to that point in time rebuts the allegation of recent fabrication.
[125] As a general rule, we do not permit the introduction of prior consistent statements of a witness at the instance of the party who calls the witness. These statements are self-serving and lack probative value: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Evans, 1993 102 (SCC), [1993] 2 S.C.R. 629, at p. 643; R. v. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398, at pp. 409-410. But where a witness is challenged for having recently fabricated his or her testimony, the party calling the witness may introduce a consistent statement made by the witness prior to the time when the fabrication is alleged to have occurred. Unless an independent hearsay exception applies, the prior consistent statement is not admissible to establish the truth of its contents: R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, at pp. 22-25.
[304] Here, there is evidence to counter any allegation of recent fabrication. This evidence does neutralize the defence assertion of fabrication. This evidence also assists in understanding the narrative of what occurred and the timing which assists the Court in the assessment of A.D.’s evidence, i.e. late disclosure. This prior consistent statement does not buttress A.D.’s credibility.
[305] As stated above, I do not accept that W.K. “dropped her bag of clothes” items outside the home after such a volatile argument. He was not in a calm state of mind after such as emotional confrontation with A.D., his wife, dealing with her affair.
[306] There is no evidence of collusion or contamination of the witnesses.
[307] The Court is satisfied that the Crown has proven counts 2 and 3 beyond a reasonable doubt. W.K. assaulted A.D. by using force against her without her consent and pointed a firearm at her. All elements of these offences have been proven beyond a reasonable doubt.
Count 4
[308] I find J.K. to be honest, sincere and truthful.
[309] I find that J.K. gave her testimony in a matter of fact manner. She did not embellish nor exaggerate the details. I find that she was consistent on the core details of the sexual assault.
[310] See R. v. D.(D.), [2000] S.C.R. 275 at para. 63. However, it is widely recognized that memory fades with time. Thus, memory of an event that occurred within the last few days may be more credible than that of an event that occurred years ago.
[311] J.K. paints a picture of a man who was controlling and abusive to her and who used his skills as a splicer with Bell Canada to illegally listen in and record phone conversations.
[312] I place little weight on T.D’s evidence that she remembered the locked room where the recording device was located at the Arnprior home. She was not living with them at the time and in her evidence, she indicated that she did not visit often.
[313] I do not place any weight on the fact that J.K. did not complain immediately to anyone about the alleged incident.
[314] A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant in a sexual assault case. Courts should be cautious about placing any weight on the fact that J.K. did not complain of the sexual assault in a timely way. This is based on a stereotype and assumes that all victims react in a certain way.
[315] J.K. also refused to guess when asked to identify one of the speakers on the audio tape. (Exhibit 2)
[316] She appeared throughout her evidence to be emphatic when she remembered a detail but would readily admit details that she could not remember, even if it would have buttressed her testimony.
[317] She admitted that her son was using illicit drugs, marijuana at that time and was not prepared to deny an allegation that would put her son in bad light.
[318] The manner of her testimony was not rehearsed but was given in a flat and detached manner.
[319] Her prior consistent statements made to Dr. C.M. which are not admissible for the truth of its content do counter any suggestion of recent fabrication and do assist the Court to appreciate the narrative. Dr. C.M. confirms that in that meeting on November 18, 1993. J.K. was quite upset and her being upset in her office seemed to relate to an incident that had occurred previously.
[320] These prior consistent statements do not buttress J.K.’s credibility.
[321] The defence questions why J.K. would have returned to live with W.K. for three months in the White Lake isolated country home. This suggests that someone sexually abused or otherwise abused would not behave in this way.
[322] The Court cannot speculate as to how victims of sexual assault should act.
[323] The passage of time has affected her memory of the details the day, time and month.
[324] I accept that the alleged sexual assault occurred as described by J.K. There were some concerns raised by her testimony which in my view did affect the reliability of her evidence, such as lack of time, date, year or season when this occurred. However, these gaps did not diminish the substantive elements of the sexual assault, even though the time and date of the offence were unknown.
[325] Until the examination in chief at trial, she had not given the details of the sexual assault regarding his movement of her, her position and the manner of penetration. She indicated that she had not been previously asked to provide those details. Her evidence when describing this portion of the sexual assault was given with credibility. She was obviously upset about recounting the details.
[326] In R. v. C.R., 2010 ONCA 176, [2010] O.J.911, the Ontario Court of Appeal at para. 62 concluded that neither in her statement to the police, in the examination in chief at the preliminary hearing or at trial did the complainant disclose the second assault to her mother. The trial judge accepted that when confronted with a direct question, she made the disclosure. Once an explanation for the inconsistency is accepted by the trial judge, it loses its power to raise a reasonable doubt.
[327] A brief note about motive to fabricate. J.W. did not demonstrate any vindictiveness or reason for disclosing these allegations against him and moving forward at this time. She did not want Officer Mask to charge him. She did not come forward. She just happened to be interviewed regarding another investigation. J.K. did not want charges laid. She says that she and W.K. remained friends after the separation as she felt it was important for her son M.K.’s sake.
[328] I do not place reliance on this finding in arriving at my decision on this count.
[329] I note that an absence of motive to fabricate must not be equated to evidence of a lack of motive to fabricate. In R. v. Czibulka (2004) 22985, at para. 35 Rosenberg J.A. said:
It seems to me that it was fundamental to the trial judge’s conclusion about reliability that the deceased had “no apparent motive to lie”. In my view, however, since there was little or no evidence of the circumstances under which the letter was written, the trial judge had no evidence that the deceased had no motive to lie. The trial judge appeared to approach the question of fabrication by using the absence of evidence of fabrication to find that there was no evidence of a motive to fabricate. There was nothing in the circumstances to justify this approach. This was not a case like Khan, for example, where it was apparent from the circumstances as related by the mother that the declarant child had no motive to accuse the accused falsely. The absence of evidence of motive to fabricate is not the same as evidence of the absence of motive to fabricate. In fact, what evidence exists tells against the deceased having no motive to fabricate.
[330] Nevertheless, having considered all the evidence, I find that the Crown has proven count
4 beyond a reasonable doubt, that is, W.K. committed the offence of sexual assault on J.K.
Count 5
[331] I find J.K.’s evidence credible and reliable as she provided vivid details of the incident.
[332] She remembers the punch to the stomach and being knocked out as the first time she was punched in the stomach. It stands out in her memory as the first time this happened.
[333] She described the incident occurred when they were arguing.
[334] She did not embellish her evidence, did not guess at answers and her evidence was not shaken under cross-examination.
[335] A weakness in her testimony is her lack of context of the incident. She does not recall the details of the argument or discussion that led to the violence, she does not recall the year, time of year, date, time of day or how the incident ended or whether anyone else was present in the house.
[336] I do not accept W.K.’s evidence on his version of the events that describes the assault as a “consent fight”.
[337] I accept that W.K. grabbed her coat with such force that she almost fell backwards and she shoved him aside. He retaliated by a punch in her stomach that she still recalls vividly years later.
[338] Therefore, I find that the Crown has proven count 5 beyond a reasonable doubt in that W.K. assaulted J.K.
Count 6
[339] W.K.’s evidence on this incident, is scanty and lacks details. The reliability of her evidence is weakened by the fact that she recalls there was at least another toilet incident where she was inebriated from her sister’s wedding.
[340] J.K. admitted that at her sister’s wedding where she passed out and vomited on the way home and perhaps in the toilet but she insists that this was a separate incident.
[341] J.K. said she told a neighbour “Heather” but this was never disclosed until her examination in chief at trial.
[342] She does admit the intoxication at her sister’s wedding and bowel movement incident which does not shed her in the best light.
[343] Yet, regarding the incident itself, she cannot remember how her feet ended up in the toilet.
[344] In summary, I accept J.K. was trying her best to relate the toilet incident. But, in my view, her evidence is not reliable. She does not remember the details, she was vague on details, e.g. of how or why she was dragged or how her feet ended up in the toilet. She believed it was a separate incident from her sister’s wedding night when he states she was on the toilet. Her evidence on the toilet incident is unreliable. I am left with a reasonable doubt on that incident.
[345] Therefore, I find that the Crown has not proven Count 6.
Conclusion
[346] Having considered all the evidence, I reject the accused’s evidence on the third prong of R. v. W.D. as based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence.
[347] For the foregoing reasons, I find W.K. guilty of counts 1, 2, 3, 4 and 5 set out in the indictment.
Justice A. Doyle
Date: November 30, 2020
COURT FILE NO.: CR-18-1466
DATE: 2020/11/30
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen
AND
W.K.
BEFORE: Justice A. Doyle
COUNSEL: Caitlin Downing, Counsel for the Crown
Adrian Cleaver, Counsel for the Accused
REasons for Judgment
Justice A. Doyle
Released: November 30, 2020