COURT FILE NO.: CR-19-1991-0000

DATE: 2022 09 12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

E.R.

Keeley Holmes, for the Crown

Hillson Tse, for E.R.

HEARD: March 21-25, 28-31, 2022

REASONS FOR JUDGMENT

Shaw J.

INTRODUCTION

[1] The accused, ER, who is now 76 years of age, is charged with six offences relating to allegations that he sexually assaulted two complainants, his son and nephew. These are historical offences dating back to acts that allegedly occurred between 1976 and 1981 involving his son, CR, and between 1994 and 1997 involving his nephew, KM. He has pleaded not guilty to each count.

[2] The offences involving CR include one count of indecent assault contrary to s. 156 of the Criminal Code, R.S.C. 1970, c. C-34, one count of gross indecency contrary to s. 157 of the Code, one count of sexual intercourse with CR knowing he was his son contrary to s. 150(1) of the Code, and one count of buggery contrary to section 155 of the Code.

[3] The charges involving KM include one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985 c. C-46, and one count of touching a young person for a sexual purpose, while in a position of trust or authority, contrary to s. 153(1) of the Code.

[4] CR was between the ages of 12 and 16 at the time of the alleged offences. He is now 58 years of age. CR also alleges that during the same time, ER sexually assaulted his daughter, AB, who is CR’s sister. ER is not charged with any offences involving AB. ER denies any sexual contact with CR or AB. AB testified on behalf of ER, and she denies that ER sexually assaulted her. She denies seeing ER sexually assault CR.

[5] ER does not dispute that he and KM engaged in sexual activity. The core of the dispute is when the sexual activity occurred and whether ER was in a position of trust towards KM at the time of the sexual activity. KM is now 43 years of age. His evidence is that the sexual activity commenced in 1994 when he was 15 and ended in 1997 when he was 18. At the time, the age of consent was 14. ER alleges that the sexual activity commenced in 1997 when KM was 18 and ended in 2004 when KM left Ontario to move back to New Brunswick.

[6] The accused was tried by me, sitting without a jury. The Crown called four witnesses including the two complainants, KM’s mother, and a retired RCMP officer from New Brunswick. The accused testified in his own defence. His daughter, AB, also testified on his behalf.

[7] One of my colleagues, Justice Dennison, heard a similar fact and severance pre-trial application and granted the Crown’s application to have count-to-count similar fact evidence apply with respect to the evidence of CR and KM (2021 ONSC 6989). In these reasons, I will consider to what extent the two complainants’ evidence can be used as mutually reinforcing similar fact evidence.

[8] On August 15, 2022, I delivered oral reasons, with written reasons to follow, finding ER not guilty of counts 1-4 and guilty of counts 5-6. These are my written reasons. As I indicated when I delivered my oral reasons, if there are any inconsistences between my oral and written reasons, it is my written reasons that govern.

BACKGROUND

[9] CR was born on November 29, 1964, in Miramichi, New Brunswick. He has lived in British Columbia since approximately 1981.

[10] AB was born in Miramichi in 1967 and is currently 55 years old. She moved to Ontario with CR in 1976 to live with ER. She returned to New Brunswick in 1985 where she now lives.

[11] Following AB’s birth, ER moved from Miramichi, New Brunswick to Ontario for work. He was living in Mississauga at the time of the alleged offences involving CR. He moved to Keswick, Ontario in 1991 and continues to reside there with his spouse, daughter, and son-in-law.

[12] CR and AB stayed in New Brunswick with their mother after ER moved to Ontario. At some point, they were apprehended by child protection authorities and placed in foster care. Following a custody dispute, ER was awarded custody of CR and AB in 1970. Their mother moved to Vancouver and played no role in their lives until CR contacted her in 1981. AB has no relationship with her mother.

[13] After being awarded custody, ER continued to live in Ontario leaving CR and AB with their grandmother in Miramichi. They lived with her between 1970 and 1976 before moving to Mississauga.

[14] Between 1970 and 1976, ER would travel to New Brunswick to visit but did not see much of CR and AB. When he returned to visit, ER would drink and party with his friends rather than spend time with his children. ER testified that he started to abuse alcohol when he was 16 and it got worse with the passage of time. At some point he sought treatment and now only drinks an occasional beer.

[15] CR’s evidence is that within a few months of moving to Mississauga to live with ER, his father began to sexually abuse him. He also alleges that ER made CR and AB touch each other in front of him and engage in sexual activity while he watched.

[16] In 1981, at the age of 16, CR was kicked out of the home by ER and returned to New Brunswick to live with his grandmother. He then contacted his biological mother and moved to Vancouver where she lived. Between 1981 and 1987, he had no contact with ER.

[17] CR returned to Ontario in 1987 and 1989 and stayed with ER. Both ER and CR testified about a physical fight that occurred during the 1989 visit.

[18] ER denies all claims made by CR and alleges CR has motive to fabricate the claims due to his hostility and anger towards ER stemming primarily from the fight in 1989 and a ring that CR says ER wrongly accused him of taking in 1976.

[19] AB denies that ER or CB ever touched her in a sexual manner. She testified that she was a victim of sexual abuse, but the perpetrators were her step-grandfather and two uncles – not her father.

[20] KM is ER’s great-nephew. KM was born in Miramichi on October 15, 1978. He moved to Ajax, Ontario in 1994 with his mother, GM, and her new husband. In approximately 2003, at the age of 25, KM moved back to New Brunswick where he continues to live.

[21] KM’s evidence is that before moving to Ontario, there were two incidents where ER exposed his penis to KM. ER denies this occurred.

[22] According to KM, sexual activity with ER commenced in 1994, when he was 15 years old, shortly after he moved to Ajax. It ended when he was 18. KM testified that he consented to the sexual activity.

[23] ER does not dispute that he and KM had a sexual relationship but says it commenced in 1997 when KM was 18 years of age and ended when he returned to live in New Brunswick.

[24] Given the conflicting evidence, as is often present in historical sexual assault trials, the credibility and reliability of the witnesses who testified are central to this case and I will be making specific findings with respect to each witness who testified.

POSITION OF THE CROWN

[25] The Crown argues that CR is a credible and reliable witness. He gave evidence that was detailed and compelling. When he testified, he was able to recall specific details of the sexual assaults. While AB denies her brother’s claim, the Crown argues that I should not find the denial credible. The Crown’s theory is that AB does not want to testify against her father as she loves him and wants to protect him. She has also repeatedly told others that she has had counselling and has forgiven ER. While AB says this forgiveness was for ER abandoning her and CR as children, the Crown argues that, within the context she made those statements, her forgiveness was for the sexual assaults her father subjected her to while living with him in Mississauga. The Crown argues that I should not accept her evidence that the sexual assaults did not occur and should find ER guilty of each count.

[26] For clarity, the Crown concedes that given CR’s evidence and the central role AB occupies with respect to the allegations, if I accept AB’s evidence that the sexual assaults did not occur, I cannot accept CR’s evidence and ER must be found not guilty. In other words, if I accept AB’s evidence that none of the sexual assaults involving both her and CR occurred, then I cannot also accept CR’s evidence about the acts that ER allegedly perpetrated against CR alone – and as such cannot convict ER on the basis of those acts.

[27] With respect to KM, there is no dispute that there was sexual contact. However, when that contact occurred is key as it relates to the charges ER is facing. The Crown’s position is that the sexual activity commenced when KM was 15 and that at the time, ER was in a position of trust towards KM and is therefore guilty of sexual exploitation.

[28] The Crown also argues that although KM consented to the sexual activity, that consent was vitiated as ER abused his position of trust. The Crown relies on s. 273.1(2)(c) of the Code which states that no consent is obtained for the purposes of s. 271 of the Code where “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.” If I find that KM’s consent was vitiated, then the Crown argues that ER is guilty of sexual assault under s. 271 of the Code.

POSITION OF THE DEFENCE

[29] The defence argues that CR is neither credible nor reliable. The position of the defence is that CR is motivated to fabricate these allegations due to his anger and hostility towards his father stemming from two incidents over which CR has been fixated for years. One involves ER wrongly accusing him of taking ER’s ring in 1976 and the second is the physical altercation that occurred in 1989.

[30] The defence position is that AB is a credible and reliable witness and her exculpatory evidence, coupled with ER’s evidence, must lead to a finding of not guilty in connection with the offences involving CR.

[31] The defence argues that KM is also neither credible nor reliable. According to the defence, KM is motivated to fabricate his age when the sexual activity occurred as he regretted engaging in consensual same-sex activities with his uncle when he was adult.

[32] The defence also asserts that even if I find that the sexual activity involving KM occurred between the ages of 15 to 18, there is no evidence that ER was in a position of trust towards KM. If ER was not in a position of trust towards KM, then there can be no breach of such a position, and therefore no basis to argue that KM’s consent was vitiated. As such I must find ER not guilty of sexual assault.

[33] If I otherwise find that ER was in a position of trust towards KM, the defence argues that there is no evidence that there was a breach of that trust and therefore ER should be found not guilty of both counts involving KM.

ANALYTICAL FRAMEKWORK

Reasonable Doubt

[34] At all times, the onus to prove the guilt of an accused beyond a reasonable doubt remains with the Crown. The Crown must prove each element of the offence beyond a reasonable doubt. Each person charged with a criminal offence is presumed innocent and this presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. At the end of hearing the evidence and submissions, if I am not satisfied that the Crown has proven any element of the offence charged beyond a reasonable doubt, the accused will be acquitted of the charge.

[35] A reasonable doubt is not an imaginary or frivolous doubt. It is based upon reason and common sense, and it logically derives from the evidence, or the lack of evidence, adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. As noted by the Supreme Court in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. After considering all the admissible evidence, if I am sure that ER committed the alleged offences, then I must convict him because I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or if I find that ER is likely or probably guilty, then I have a reasonable doubt and an acquittal must follow.

[36] Proof beyond a reasonable doubt is a high standard. As the Supreme Court of Canada commented at para. 13 in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, this high standard is one of the principal safeguards to ensure that no innocent person is convicted.

W.(D.) Analysis

[37] Given the conflicting evidence of ER, AB, and the two complainants, credibility assessments are key to the determination of guilt or innocence in this case. Therefore, the three-step analysis set out at pp. 757-758 of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 must be followed to prevent the burden of proof shifting to the accused. The three steps are as follows:

I. If I believe the evidence offered by ER, that he did not commit the offences for which he is charged, I must find him not guilty.

II. If I do not believe the evidence offered by ER that he did not commit the offences, but I am left in a reasonable doubt regarding any essential element of the alleged offences, I must find him not guilty.

III. Even if I am not left with a doubt by the evidence offered by ER, I must ask myself whether, based on all the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of ER.

[38] In a case such as this, when dealing with two witnesses whose evidence is completely contradictory, an accused is not to be disbelieved simply because the complainant is believed: R. v. V.Y., 2010 ONCA 544, 258 C.C.C. (3d) 281, at paras. 19 and 26. An accused is not to be found guilty, after accepting the evidence of the complainant, without properly assessing whether the accused’s evidence, or the evidence, raises a reasonable doubt: R. v. J.H., 2018 ONCA 245, [2018] O.J. No. 1354, at para. 37.

[39] The mere disbelief of the accused’s evidence will not satisfy the burden of proof upon the Crown: W.(D.), at p. 757. If, after considering all the evidence, the court is unable to decide whom to believe, then the court must acquit. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

[40] There is a line of cases that deals with the rejection of an accused’s denial of any wrongdoing. In R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, Doherty J.A. found that the trial judge rejected the accused’s denial because when the accused’s evidence was stacked up against the complainant’s evidence and other evidence, despite the absence of any obvious flaws, it did not leave the trial judge with a reasonable doubt. The court found:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[41] This reasoning was considered in R. v. D.(R.), 2016 ONCA 574, 342 C.C.C. (3d) 236, at para. 18, where the court found that the bare acceptance of a complainant’s evidence and the bare denial of an accused’s evidence are not sufficient reasons. If a trial judge is to rely on D.(J.J.R.), then the court must set out the grounds for accepting a complainant’s evidence.

Assessing Credibility and Reliability

[42] When assessing credibility, I can consider how reliably or accurately a witness recalls events and the way the witness presents his or her evidence. This includes whether they do so in a truthful and complete manner and whether they are being frank, biased, or careless with the truth.

[43] In R. v. M.(A.), 2014 ONCA 769, 123 O.R. (2d) 536, at paras. 12-13, the Court of Appeal noted that one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions, whether or not under oath. Inconsistences may arise not just from a witness’s evidence at trial, but from that witness may have said differently in other instances. Some inconsistences are minor or regard more peripheral issues. Some are material. Material inconsistencies, about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth that should concern the trier of fact.

[44] Reliability is separate from credibility. Credibility focuses on a witness’s veracity. Reliability has more to do with accuracy – the ability to observe, recall, and recount events that are in issue: R. v. C.(H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue.

[45] While I can consider the way a witness testifies in assessing that witness’s credibility and reliability, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, [2017] O.J. No. 1593, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261.

[46] Further, it is open to a trier of fact to believe all, none, or some of a witness’s evidence: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, [2018] O.J. No. 781, at para. 143.

[47] Where there are significant inconsistencies or contradictions within a principal Crown witness’s testimony, or when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.(W.) (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at para. 15, leave to appeal refused, [1994] S.C.C.A. No. 290.

Myths and Stereotypes in Sexual Offences

[48] When dealing with sexual offences, it is important to be mindful of myths and stereotypes about how someone should behave following a sexual assault or when they should report an assault. Myths and stereotypes about both have, at times, tainted sexual assault jurisprudence. The court must not draw an adverse inference regarding a complainant’s credibility based on assumptions of how people react to acts of sexual abuse: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63.

[49] In D.(D.) the court found at para. 55 that there is no inviolable rule with respect to how victims of sexual assault will behave. Some victims will make an immediate complaint, some will never disclose, and others will delay in disclosing the abuse. The reasons for delaying disclosure may include embarrassment, fear, guilt, or a lack of knowledge. In assessing credibility, the timing of the disclosure is just one factor to consider. A delay in disclosure on its own does not give rise to an adverse inference against the credibility of the complainant.

The Evidence of Adult Complainants Testifying about Childhood Events

[50] CR testified about incidents that occurred between 41 and 46 years ago, when he was between 12 and 16 years of age. KM testified about events that occurred between 25 and 28 years ago when he was between the ages of 15 and 18. When an adult testifies about what occurred as a child, their credibility is to be assessed according to the criteria applicable to adults. With an adult’s evidence regarding events that occurred in childhood, the presence of inconsistences, particularly peripheral matters such as time and location, should be considered in the context of the age of the witness at the time the events took place: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

[51] That does not mean I accept the complainants’ evidence uncritically. I just assess the evidence on a common-sense basis, considering the strengths and weaknesses of the evidence presented.

REVIEW OF THE EVIDENCE

1. The Offences Involving CR

[52] Historical sexual assault cases pose challenges because witnesses are asked to testify about events that occurred many years ago. In this case, the alleged assaults involving CR took place over four decades ago. It is to be expected that memories fade over time, which can result in conflicting evidence as witnesses attempt to recall distant events.

[53] CR testified in detail about what he says occurred between himself, his sister, and his father 41 to 46 years ago. He was verbose and animated when he testified. He was clearly angry and hostile towards ER. Rather than having difficulty recalling details of events that occurred over four decades ago, CR testified in very specific detail about the sexual assaults. At times he anchored his evidence to real life events, such as the 1979 train derailment in Mississauga. He also gave detailed evidence about the circumstances surrounding some of the incidents such as recalling a mirror on a ceiling, what ER said to him, what ER was wearing, and what was playing on tv as ER sexually assaulted him.

(a) Evidence of Sexual Assaults

[54] When CR was 11 years old and AB 8 years old, they moved to live with their father, ER, in Mississauga. They lived on Bromsgrove Rd. with ER, his spouse, and their newborn baby. In 1980 they moved to another home, also on Bromsgrove Rd.

[55] CR’s evidence is that within a few months after moving to Mississauga, ER made sexual advances toward him.

[56] CR testified that their home was near railroad tracks, and he would often be woken up at 4 am, at least twice per week, by the loud sound of a train stopping at a local factory.

[57] CR testified about being woken up by the train the first time there was any sexual contact with ER. He went downstairs into the living room. He testified that ER was lying on the couch in his housecoat watching tv. CR testified that he saw ER masturbating. He did not know what that was. ER asked him if he ever masturbated. He testified that CR made him touch his penis and ER touched CR’s penis.

[58] Over time, ER had CR perform oral sex on him and then ER performed oral sex on CR. Eventually, CR would lie on the couch with his back to ER and ER would put his penis between CR’s legs, under his testicles, and dry hump until he ejaculated.

[59] CR described in detail how it felt when ER performed oral sex on him. He described ER as eager and rough; he felt like ER was biting him with his teeth.

[60] CR recalled that an exercise television show would sometimes be on when these sexual assaults occurred. ER would watch that show while CR lay on the couch with his back to ER.

[61] All sexual activity occurred on the couch in the living room when they lived at the first house on Bromsgrove Rd. CR estimates that there were 40 to 50 sexual interactions with ER over the four years that they lived at this first residence.

[62] According to CR, ER performed shift work and would work ether afternoon or graveyards shifts. CR testified that the sexual assaults would occur after ER’s work shifts and were sometimes as often as once per week. There was the odd occasion where no one was home, and ER would have CR perform oral sex on him after school.

[63] CR recalls ER telling him that having sex was his way of showing love.

[64] When he was 13 or 14 years old, ER first tried to anally penetrate CR. CR described squeezing his buttocks together. If he whined, ER told him to be quiet. When finished, CR would go upstairs to the bathroom to wipe semen off himself. He also recalled seeing blood.

[65] He recalls thinking that ER’s penis looked like a monster to him. ER would get frustrated and angry with him. He would tell CR to relax. At times he would just put his penis between CR’s legs and then ejaculate.

[66] CR testified about another incident when he and ER engaged in oral sex. He recalled the 1979 train derailment and residents of Mississauga being evacuated. He recalled that they were one of the last places to be evacuated. He also recalled that he and ER had to share a bed where they stayed after being evacuated. That night, they performed oral sex on each other.

[67] CR testified that in the late 1970s, ER told him that he wanted to do things with AB. His evidence was that AB told him some time later that ER did do sexual things to her at the first house.

[68] CR testified about the first time ER made CR and AB touch each other in approximately 1979-1980. He recalled driving to New Brunswick for a family visit in a 1976 Thunderbird vehicle that ER owned. ER told CR and AB take their pants off and put a blanket over their legs. ER had his penis out of his pants. CR remembered that ER was wearing a black shirt and his belt was on CR’s leg. CR testified that ER directed that he and AB touch each other while he masturbated.

[69] CR recalled that in 1980, the family moved to a new townhome complex. CR’s evidence was that when they moved to the new townhome, ER would watch while CR and AB touched each other. ER would masturbate as he watched. CR and AB would also perform oral sex on each other. He estimates that this occurred eight to ten times.

[70] CR testified that ER continued to do the same things to him in ER’s bedroom. There was masturbation, oral sex, dry humping, and ER penetrated him anally. He performed anal sex on ER. He recalls mirrors on the ceiling. He recalled that ER told him how much his body reminded him of a girl. He recalled that ER had a jar of Vaseline he would use.

[71] CR also testified that twice he approached ER and initiated sexual contact and had anal sex with him.

[72] During cross-examination, CR testified about an incident involving himself and AB when he wrapped his penis with saran wrap, as he did not have a condom, and they engaged in sexual intercourse. CR was very upset when he testified about this incident and said he later apologized to AB. He said he felt disgusted about that incident.

[73] The sexual abuse ended when CR was kicked out of the home by ER in the summer of 1981. CR testified that there were several reasons why ER told him to leave the home: he lied to ER about sleeping at someone’s house when he went out roller skating all night, he was not doing well at school, and he got into a fight at school and was kicked out two weeks before the end of the school year.

[74] He returned to New Brunswick after he was asked to leave the home and lived with his grandmother. He was eventually given his biological mother’s phone number and he called and spoke with her for the first time since they were taken from her care. He then moved out to Vancouver where she lived.

[75] CR testified that he disclosed what occurred to his mother in 1982.

(b) The Ring

[76] CR testified about an incident that occurred when ER’s ring went missing in 1976. ER accused CR of taking the ring even though there were other people in the house drinking when the ring went missing. Over the years, when CR reached out to ER, he says that ER continued to bring up this ring incident which greatly upset CR.

(c) Trip to Ontario in 1987

[77] CR testified that he visited ER in 1987 and stayed with him for 8 to 10 weeks. He recalled an incident where they were out drinking and after returning home, when sitting on a couch, ER propositioned him. CR was in his 20s at the time. CR testified that ER propositioned him a couple more times during that visit, but CR said he declined.

(d) Trip to Ontario in 1989 and the Fight

[78] CR testified that in 1989, he fell into a major depression. He wanted to be close to family, so he arranged to stay with ER in Mississauga. He stayed with him for 6 to 8 weeks. One day they went to visit ER’s best friend, DR, in Scarborough. Everyone was drinking, playing guitars, and playing cards. According to CR, ER began to flirt with a babysitter. CR did not think that was right and confronted ER. CR testified in detail about how a physical fight ensued. He described ER slamming his hand to the side of his face and then slamming him into the kitchen counter. CR described blacking out. He woke up and ER was kneeling on him. He also described ER running at him after he got up and smashing his head into the refrigerator. CR testified that he fell on his right side and ER was punching him. According to CR, his ribs were injured. He got up and put two fingers into ER’s nose. He also put a knife to ER’s throat. DR’s wife yelled at him to give her the knife which he did. ER then left.

[79] CR did not want to go to the hospital as he did not want the police involved. He testified that he was not ready to talk to the police about the sexual abuse. He also said that apart from his mother whom he told in 1982, no one else in the family knew. He also did not want his grandmother to know anything. She died in 1997.

(e) Events After 1989

[80] CR returned to British Columbia after the trip to Ontario in 1989 and has not seen ER since.

[81] According to CR, he began to communicate with ER again in the early 90s. In 1996, he called ER from a pay phone as he wanted to forgive his father. He was in counselling at the time. When he told ER he forgave him, CR testified that ER showed no remorse and asked him if he had the ring. CR was very upset by this as he wanted to talk about forgiveness and starting fresh and his father was still accusing him of stealing a ring.

[82] Between 2008 and 2014, he called ER at least 10 times. He said he was carrying a lot of anger so he would call to say he forgave ER about the sexual assaults. His evidence was that ER expressed no remorse. During a phone call in 2010, CR told ER he forgave him for the “sexual stuff”. His evidence was that ER brought up the ring, again, so he hung up the phone.

[83] CR testified that when he spoke with ER in 2014, ER said he did not remember anything. He was also upset as ER brought up that CR approached him a couple of times for sex. This upset CR as he felt that ER was blaming him for what happened.

[84] In 2016, he started to write a letter to ER setting out the details of what occurred between 1976 and 1981. He felt he needed to talk to someone, so he contacted a police officer in New Brunswick and sent him the letter. On March 7, 2016, CR went to the police and gave a statement about the sexual abuse.

(f) Contact with GM and KM Over the Years

[85] Over the years, CR talked to GM by pay phone five to seven times per year. In 2003 he got his own phone so he would speak with her more often. In 2004, he started to talk to her about family issues. He told her about ER sexually abusing him. He testified that his phone calls to GM could be long – up to four hours. He said he was experiencing depression and had things that would not leave his head.

[86] CR testified that in 2014, his Aunt E told him that ER sexually assaulted KM. His aunt passed away a year later. He did not tell GM what Aunt E told him, but he was upset with GM and felt betrayed by her for not telling him about KM. Prior to 2014, he was calling GM two to three times per week. He did not call her as much after he learned about KM.

[87] CR testified that he called GM one week after he went to the police on March 7, 2016. He described a hostile phone call. When he told her he had gone to the police, GM said the family did not need this. He then asked GM why she didn’t tell him about KM. She asked who told him and he said it was Aunt E. When he asked GM again why she did not tell him, she told him that he did not need to know about it. He told her to “fuck off” for lying to her, hung up, and did not talk to her for four to six months.

[88] Four days after this phone call, KM called him, and they talked for the first time since approximately 1990. CR testified that the last time he saw KM was in New Brunswick in 1990 when KM was 11 years old. CR testified that KM was crying and said to CR that he believed what happened to CR as ER also did things to him. KM also told CR that ER told him what he did to CR and AB.

[89] CR testified that he talked to KM one other time. CR said he got a message through Facebook from KM and KM said he felt like he lost a role model when CR left New Brunswick. CR phoned KM following this message to tell him that he had not lost a role model.

[90] CR denies that anyone gave him any details about what happened to KM before he went to the police in March 2016. All he knew was that his Aunt E heard through the grapevine that things had happened to KM, but that she did not know details.

(g) Contact with AB Over the Years

[91] CR testified that between 1982 and 1985 he wrote long letters to AB. She responded around 1983 or 1984 that she had a new boyfriend, but that ER did not like him as he was Indigenous.

[92] CR testified that he saw AB once in 1984 or 1985, once in 1987, and twice in 1989 in New Brunswick. His evidence was that he would communicate with her randomly and he would bring up the past. In the early 2000s she told him that she forgave ER and she asked CR why he could not do the same. The last time he spoke with her was in 2012 or 2013. He also recalled at one point her yelling at him that he had abandoned her. He sent her messages on Facebook in 2016 but she never responded.

(h) CR’s Circumstances

[93] CR has struggled over the years. He testified about a suicide attempt in 1991. He has been in counselling. He suffers from serious social anxiety, depression, and low self-esteem. He has anger issues that have grown over the years. He suffers from post-traumatic stress disorder and has been diagnosed with bipolar disorder. He has been receiving CPP disability benefits since 2007.

Cross-examination of CR

[94] CR was cross-examined extensively. For the most part, on the core issues of the assaults, he was not shaken. His answers underscored the detail with which he recalled the years of alleged sexual abuse.

[95] He was cross-examined about the physical layout of the first home. The bedrooms and bathrooms were on the upper level. Thus when these alleged assaults occurred, everyone but CR and ER would be sleeping upstairs. ER’s spouse was not working at the time as she was caring for their newborn baby. He could not recall specifically when ER’s spouse went back to work but recalled she worked at Molly Maid cleaning homes at one point and also in a factory near the second house. He also recalled that she looked after other children at some point.

[96] He was also questioned in detail about the shifts and hours that ER worked. Other than recalling ER did shift work, CR could not recall the exact hours he worked or when he left home. This makes sense, however, given CR’s age and that the events occurred over four decades ago.

[97] He agreed that ER never came to his bedroom to initiate sexual activity. CR testified that ER was not always in the living room when he woke up in the middle of the night but that sometimes ER would be asleep on the couch.

[98] When asked why he continued to go to the living room when he woke up in the middle of the night knowing what his father might do to him, CR explained that his father introduced him to sex and made it seem normal to him. CR testified that he did not fear ER. He testified that ER told him that this was just between them and not to let anyone else know.

[99] He was asked many questions about the ring incident. CR denied that he repeatedly raised the issue with ER. CR agreed that he talked to GM about the ring as he was upset that ER continued to blame him for taking the ring.

[100] CR was also cross-examined in detail about the fight that occurred between himself and ER in 1989. CR was not shaken on his description of what occurred.

[101] On cross, CR’s evidence was that in 2010, when he called to forgive ER, he had no intention to go to the police. He became vey angry, however, when ER did not show any remorse and again accused him of taking his ring.

[102] He was also cross-examined about his relationship with GM and when disclosures were made. To be clear, these disclosures are not relied upon as a prior consistent statement. A witness who says something before does not make it more believable when repeated in court. The evidence of the disclosures is relevant in dealing with the issue of any actual collusion or opportunity for collusion, which could have an impact on the extent to which the similar fact evidence is to be used, and the weight given to it.

[103] According to CR, the first time he disclosed the alleged sexual assaults to GM was between 2004 and 2008. He told her general things but did not provide any details about the sexual assaults as GM did not like hearing any graphic details.

[104] CR and KM talked after CR went to the police in March 2016. CR denied that he told KM what happened between himself and ER. He testified that KM did not tell him any details of what happened to him, and he still does not know what happened. He said he was trying to comfort KM during that phone call.

[105] CR testified that Officer Singh told him on May 29, 2016, that ER had been arrested and was told at some point that there were 10 charges. At that point CR knew that someone else had gone to the police, but he did not know who.

[106] He agreed that when he talked to AB over the years, he would bring up the sexual abuse. He did not agree with the suggestion that AB always told him that she had never been sexually abused by ER and that she denied that she and CR engaged in sexual activities. He testified that one time in 1989, AB was at their grandmother’s house with a baby, and he brought up the letter she had written to him in 1983. He said that in that letter, AB said she had shared a bed with ER, and that they had engaged in sexual activity. He has lost that letter.

[107] He recalled a phone call in 2012 during which AB told him she did not know why she could not forgive ER. CR told her he could not forgive ER as he was a monster and a pedophile.

[108] He was also asked about his mental health. He was diagnosed with bipolar disorder and PTSD in the 90s. He was on lithium for two years but then a new doctor changed his medication. In 2004 he saw another doctor who changed his diet and put him on vitamins. He saw him four times in 2004. The doctor subsequently retired and later died.

[109] He was questioned about medical records and why he had not given defence counsel the name of the doctor he saw in 2004 as there was a third-party records application. His explanation was that he did not think to do so as he only saw the doctor four times and he has since died.

[110] He agreed that he has had mental breakdowns in the past and has experienced depression. He did not agree with the suggestion that he had a more vivid memory when experiencing symptoms of bipolar disorder. He said his memories are always with him. He also did not agree that a symptom of bipolar disorder is an inflated level of self-esteem. He said he suffers from low self-esteem.

GM’s Evidence

[111] GM has played an important role in the lives of ER, CR, KM and AB. She was born on January 16, 1959. She is 63 years old. She lives in Miramichi, New Brunswick. KM is her only child. GM is ER’s niece. She was raised with him and considered him to be a brother. She testified that she had a close relationship with ER. She and KM lived with ER in Mississauga for about six months in 1982. After ER moved to Ontario, she would see him when he returned to New Brunswick for visits in the summer and for family events such as weddings and funerals. When he returned, he would stay with her and KM, or with other family members.

[112] During cross-examination, she testified that she has always been in contact with CR over the years. He would call her once every six months, but it could be more often. She agreed that CR first told her in 1996 that ER sexually assaulted him. She agreed that CR likes to talk a lot and would often repeatedly tell her the same things. He would share his feelings towards ER. He told her several times about the fight in 1989 and that ER blamed him for taking a ring in 1976.

[113] GM denied telling KM anything that CR told her about ER sexually assaulting CR. She testified that CR became upset with her when he found out about KM. Her evidence was that CR hoped ER had not touched anyone else, and she did not tell CR about KM as she did not want CR to be heartbroken about his father.

AB’s Evidence

[114] AB was called as a defence witness. She works at a call centre in New Brunswick. She is married with three children.

[115] AB presented her evidence in a very clear and concise matter. She was not shaken on the core of her evidence that the sexual assaults described by CR did not occur.

[116] AB testified that while she could not recall ER’s exact schedule when she lived with him in Mississauga, she knew he worked shift work. If he worked a day shift, he would be home by 4 pm, if he came home. During afternoon shifts, he worked until midnight. If he worked the midnight shift, he would be home by 7 am. She testified that ER worked long shifts, sometimes 12 to 14 hours a day, 7 days a week. During the week, she would not have much contact with him.

[117] AB testified that ER had an issue with alcohol and always drank. She felt alcohol was more important to ER than she was.

[118] She testified that at some point their stepmother worked at Molly Maid and at a factory near their home when they moved to the second home. This is consistent with CR’s evidence.

[119] AB testified about driving back to New Brunswick every summer where she and CR would stay for the summer. ER would return to Ontario.

[120] She recalled that CR left home in 1981 but she did not know why. He never returned to Ontario while she was living there. She had contact with him when he moved to Vancouver.

[121] AB denied ever having any sexual contact with CR or ER nor did she see ER sexually abuse CR. She testified that other family members had sexually abused her.

[122] In 1985, AB returned to New Brunswick as she did not want to live in Ontario. She was in grade 11 at the time. She did not have a great relationship with ER when she left Mississauga. She lived with GM for the first year when she returned to New Brunswick.

[123] AB testified that she had counselling in 1993 when her partner left her while pregnant. The initial counselling was only a few sessions but then she returned to counselling in 1994 following the death of her newborn son. She remained in counselling until about 2010 or 2012.

[124] Through counselling, AB dealt with issues from her childhood. She told the counsellor that her first memory was of her grandfather touching her when she was 5 years old. She also dealt with memories of a biological uncle, B, and another non-biological uncle, G, touching her. G was GM’s godfather. Through counselling, she realized it was her grandfather and two uncles who sexually abused her. She testified that the sexual abuse took place before she moved to Ontario in 1970 or at her grandmother’s during summer vacation.

[125] When she was 13 yeas old, she told her grandmother about her Uncle B touching her. Her grandmother told her to be quiet and not to ruin her uncle’s life. She also testified that when she was older, her Aunt E confronted her about it. She never told ER about other family members touching her but may have told GM.

[126] Her evidence was that she discussed her father in counselling, but she never identified him as someone who abused her. She told the counsellor that her brother would tell her about “all this stuff” that she could not remember. She thought she was going crazy because she could not remember ER having sexually abused them, despite what CR told her. Her evidence was that CR would become upset, frustrated, and call her names when she would tell him that she did not remember what he was talking about. She would also get upset by these phone calls.

[127] After she moved back to New Brunswick, she would visit ER and see him if he came to New Brunswick. Through counselling, her relationship with ER improved.

[128] She never told GM or CR that ER sexually abused her.

[129] She recalled a police officer calling her in 2009. The officer was calling from Miramichi and was investigating something between her cousin M and her Uncle B. The officer also brought up her father, as M said there was an incident involving him. She told the officer she did not want to hear about it. Her evidence was that the incident involving her father and her cousin M was when M walked in on him while he was urinating. She told the officer that she had counselling and had dealt with her childhood and abuse and wanted nothing to do with it.

[130] She testified that when she told the officer she had put issues behind her, she was referring to her father never being there for her when she was young.

[131] When cross-examined, she testified that it was her grandmother’s husband who abused her between the ages of 5 and 7. Her Uncle B started to abuse her when she was 6, before she moved to Ontario. He last did it when she turned 13. G abused her when she was 7 or 8.

[132] When she moved to Ontario, at the age of 8, she remembered what happened with these three perpetrators. She knew she had been abused but did not know who it was as she had “so many pictures jumbled in my mind.”

[133] She recalled one time her Uncle B coming into her bedroom when she was 13. He had been drinking. She told him she was not a kid anymore and would beat him if he tried to touch her. She decided to tell her grandmother about this incident. Her grandmother was angry and told her not to say anything and not to destroy his life. She remembered feeling hurt and thinking that the person she trusted most in the world had told her to be quiet. She followed those instructions and did not tell anyone.

[134] She testified about having nightmares about someone coming into her room, but she did not know who it was. Through counselling, she was able to put the pieces together.

[135] AB was asked about the discussion with the officer who contacted her in 2009. Prior to that, her cousin, M, had told her she wanted to talk to the police about Uncle B. She did not agree with the suggestion that M had told her she wanted to talk to the police about ER. She did agree that the complaint M was making about ER was that when she was 5 or 6, ER had called her into the washroom while he held his erect penis in his hand and asked her if her daddy ever showed her this. AB’s evidence was that her cousin told her that she had opened a curtain and saw ER urinating.

[136] She testified that the officer who called her said M made a statement about Uncle B and brought up something about ER, but he did not say what it was. She did not agree that she knew he was referencing something sexual involving ER.

[137] She denied the suggestion that she told M that ER sexually assaulted her, and she denied the suggestion that the officer called her because M told him to talk to her about that.

[138] She testified that she told the officer she did not want to be involved in an investigation about M seeing her father urinating. She understood that M was talking to the police about Uncle B and that the only issue with her father was seeing him urinate. She also did not want to participate in any investigation about Uncle B as her grandmother told her to keep quiet.

[139] M was not called as a witness by the Crown.

[140] AB did not agree with the suggestion that the way she deals with the abuse she suffered is to put it away and not think about it. She testified that while she cannot change what has happened, she will never forget but she will forgive. She agreed that she prefers not to think of the sexual abuse.

[141] She testified about the vivid details she has about what happened with the other three abusers. She repeated that she would have remembered if ER had sexually abused her, but that it did not happen. She also testified that in counselling, she would talk about not remembering what CR said happened to them when they lived with ER.

[142] She testified that when she told CR she forgave ER it had nothing to do with any sexual contact with ER but was rather with respect to their difficult childhood. She testified that when she told CR to get over their past, she was not referring to any sexual abuse.

[143] She testified that there was a lot of hurt with ER growing up as he was hardly there, but that she loves him now.

[144] She also denied the suggestion that her Aunt E asked her about her father. She denied having told Aunt E that her father sexually abused her. She denied GM telling her that Aunt E told her about ER sexually abusing her. She denied telling GM that ER sexually abused her.

[145] She denied telling GM that she was angry with CR for always bringing up the sexual abuse as she had dealt with it through counselling.

[146] Her evidence is that she did not want CR rehashing her childhood She said he would complain about their terrible childhood from the moment they were placed in foster care. She denied telling CR he had to move on from the sexual abuse and get over it.

[147] She admitted that she yelled at CR for abandoning her but denied yelling at him that he left her to deal with the sexual abuse alone.

[148] She described feeling peace living in Ontario between 1976 and 1985 as her step-grandfather and uncles were not there. She agreed that her homelife was stable in Ontario. She left because she found Mississauga was too fast paced and wanted to live in a small town where you know everyone. She denied leaving due to the sexual abuse from her father.

ER’s Evidence

[149] ER denied ever having sexual contact with CR or AB.

[150] ER is retired after working 31 years for the same company. He testified that there were three shifts where he worked. The morning shift was from 7 am to 3:30 pm, the afternoon from 3:30 pm to midnight, and the overnight shift from midnight to 7 am. He worked a lot of overtime. His evidence was that between 1976 and 1981, he was not home much and did not spend much time with his children. He testified that he was drinking a lot as well and sometimes would drink in the parking lot after his work shift was over.

[151] According to ER, his preference was to work the midnight shift. At some point, the shifts became 12 hour shifts and he would work 7 pm to 7 am. He would trade shifts with others who did not want to work the midnight shift. There were times he worked other shifts.

[152] When he would get home from work after the midnight shift, CR and AB would be having their breakfast and he would go to sleep.

[153] He agreed that the home was near railroad tracks, and it was loud but you could not hear it when they moved to their second home.

[154] He testified that after CR left the home in 1981, the first time he saw him again was in 1987 when CR came to Ontario with his girlfriend. They stayed for 1.5 to 2 months. They tried to get jobs. ER testified that he let CR stay with him as he was his son, and they have a big, close family who loved each other very much.

[155] ER testified that CR returned to Mississauga in 1989. He testified about the physical altercation that occurred at DR’s home. He agreed that CR confronted him about allegedly flirting with a woman. They were bickering and ER said he pushed CR. His evidence was that CR turned around and tried to claw his eyes out. ER grabbed his wrists and pushed him down to the ground. CR got up, grabbed a knife, and pointed it towards ER. Someone took the knife from CR. ER left and drove home. The next day, CR told ER he was going to get even with him and make him pay. CR stayed one or two more months with ER and then ER asked him to leave.

[156] ER also remembered the incident with the ring in 1976. CR was 12 at the time. ER owned a gold ring with a birthstone in it. He recalls taking it off one day when he was drinking and the next day it was gone. He asked CR if he had it and CR said no and that was it. According to ER, for years CR would bring this up when they spoke. He denied ever raising it with CR.

[157] After 1989, CR called ER four or five more times. ER’s evidence is that CR never spoke to him of any alleged sexual abuse.

[158] ER first became aware that CR was making allegations about him sexually abusing CR approximately 30 years ago. He was told that CR was calling ER’s sisters saying ER sexually abused him. ER’s evidence is that at some point he told CR to go to the police and leave his sisters alone.

[159] ER testified candidly about his alcohol abuse. He said he is an alcoholic. He used to drink quite a bit of beer. Sometimes he could blackout and forget where he left his car, who was at a party, or how he got home. He eventually sought treatment. He will now have the occasional beer.

Cross-examination of ER

[160] ER testified that despite having a significant problem with alcohol when CR was young, he was 100% sure he did not sexually abuse him even if he was too drunk and had blackouts.

[161] He was cross-examined extensively about his statement to the police dated May 23, 2017. He agreed that he told the police that CR had been making allegations that he had sexually assaulted him for 30 years. He agreed that despite this, and while he told CR to go to the police, he never prepared for and thought about what he would say to the police if CR did follow through and go to the police.

[162] He knew when he spoke with the police that he was being charged with sexually abusing CR as a child. He agreed with the suggestion that he wanted to make it clear to the police during the interview that he did not sexually assault CR and that he was 100% certain of that.

[163] His interview commenced at 7:37 pm and ended less than two hours later at 9:09 pm. He confirmed he was read his rights, was informed of the charges, and spoke with duty counsel. When told that CR made a report to the police in 2016 and that the police had conducted other interviews, ER told the officer at 7:52 pm that “every spring his mom tells him that I molested him.” He then told the officer that CR suffers from bipolar disorder and is manic depressive and was “pissed off” and told ER 30 years ago he was going to get even with him. He told the officer that he told CR half a dozen times to go to the police.

[164] On re-examination, he testified that he misspoke and that it was his sister who would tell him that every spring CR would contact them and tell them ER sexually abused him.

[165] At 8:03 pm, the following exchange occurred:

ER: …and I said every spring my sister’s telling me every Spring, every spring yet nothing through the summer, winter. Come springtime he starts making all his phone calls and…

Singh Yeah. Okay. Has he ever said anything to you about what he claims that you did to him?

ER Let’s see he asked me if I remembered – what was it? He asked me if I remembered something that happened, and I told him I couldn’t remember it, but I can’t remember what it was he asked me.

Singh Mm-hmm

ER I know that there was something he asked me about – he said that something happened, and I said well, CR I have no memory of it whatsoever buddy, you know, none

Singh What like ballpark are we talking about? Is he talking about -, like what type of stuff was he even talking about if you don’t’ remember the specifics?

ER No, he just said something happened and he didn’t’- uh, I don’t know what he meant by something happened.

Singh Okay

ER So that’s all I can tell you.

[166] After this exchange, ER then told the officer that he was told by his brother, sister, and others that CR told them that ER molested him and had been saying these things for 30 years. He told the officer he never got any details of what CR was saying he did to him.

[167] The officer then told him that CR wrote a 60-page letter outlining things that happened. The officer told him that CR was alleging that when living at the house in Mississauga he would see ER masturbating on the couch and that they would masturbate the other and CR would perform oral sex on ER and then anal sex. When asked at 8:05 what he had to say about those allegations, ER said:

ER Don’t ring a bell to me, buddy, to tell you the truth

Singh Yeah

ER I have no recollection of anything ever happening between me and CR.

[168] When the officer offered to read ER parts of CR’s statement regarding the allegations, at approximately 8:16, ER said, “but I have no memories, none whatsoever of having anything sexually to do with CR or anybody else that I- that I’m aware of.” The following exchange then occurred:

ER So, I mean, he can put down anything he wants.

Singh Yeah

ER So I can’t dispute it and I can’t

Singh Yeah

ER say, you know, one way or the other, I don’t

Singh Yeah

ER remember and,

Singh So when you say you have no memory, is that because of….

ER Cause I don’t’ think it happened

Singh Okay, When you say you don’t think I happened, there’s a big difference between I know for a fact I didn’t do this

ER Well

Singh …and I could have done this because…

ER …when you have blackouts, how can you be certain?

Singh Yeah, okay

ER I mean a man would have to be a fool to say he remembers everything when he’s drunk when he doesn’t remember driving to Montreal and back again

Singh Yeah

ER You know, when you’re that shape, how can you say for sure?

Singh Yeah. So, in and around that time period where CR was living with you, that’s when you were having the bad drinking?

ER Well, I had bad drinking for a lot of years, a lot of years

Singh Okay

ER But even long before he came along

Singh Okay. So, during those blackout periods, you can’t say with any certainty what happened?

ER No, I can’t, I can’t

[169] Later in the interview, at 8:35 pm the following exchange occurred:

Singh So now we have CR making these allegations and you tell me that, you know, you don’t remember chunks of time while you were living with CR

ER That’s true

Singh Right?

ER That’s true, yeah

Singh Um, so where I’m left is that these instances could have taken place, right? I have CR telling me that it did…

ER Yeah

Singh …and I have you telling me that there’s times that you don’t remember what happened

ER That’s right, exactly true

Singh right?

ER Cause there’s time that I got and couldn’t find my car, I didn’t know where I left the damn thing or whatever, you know

Singh Yeah. So if you have the opportunity to say something to CR right now let’s say some of these things that he referred to here did take place

ER Yeah

Singh ...while you were so drunk that you don’t remember what you were doing and you had the opportunity to say something to him, what would you want to say to him?

ER Well, what I could say if I don’t remember them happening and I, and I don’t’ believe they happened.

Singh Mm-hmm

ER How am I gonna say anything about it?

Singh But you’re telling me that it could have happened, right? Because…

ER Well, uh, anything could happen when you’re that drunk, who knows, you could have murdered someone and not know about it

[170] Just after 8:50 pm, Officer Singh said to ER that he just wanted him to be honest and ER’s answer was that he was telling the truth and he had no recollection of anything ever happening with CR. That was followed by this exchange:

Singh So my only problem with that is if someone were to come in here and accuse me of sexually assaulting my son, my answer wouldn’t be I have no recollection of that, I would be like absolutely not, I did not sexually assault my son. You’re telling me that it could have happened when you were…

ER Anything could happen

Singh Right? That’s a…

ER Anything, who do we - , how do we know what could have happened when you’re blacked out.

[171] At 8:54 pm, near the end of the interview, ER told the officer that he was positive that he had nothing to do with CR.

[172] All these passages were put to ER on cross-examination, and he was asked why, when confronted with the allegations, he did not say 100% that he did not sexually assault CR. ER gave several explanations. First, he testified that he told the officer he had nothing to do with it before the interview started. He then agreed he was given a chance to say that during the interview and he did not. He also agreed there was a difference between saying he did not do it versus he did not remember. It was his evidence that when he said he did not recall, it was not an admission that he did it. His second explanation was that he was not thinking straight when he was questioned by the police. His third explanation was that he wanted to get home so he was going along with whatever he was asked so he could go home. He also agreed he was the one who brought up the alcohol and his lack of recollection.

[173] ER denied that CR ever confronted him about the sexual abuse allegations, rather that he only heard from other family members that CR was saying that ER molested him. He recalled that CR had many complaints over the years when they spoke on the phone, but they did not include sexual abuse.

[174] ER denied that CR’s mother called him and confronted him about sexually abusing CR. ER testified that he last spoke with her in 1969. While AB testified about answering the phone once at ER’s home when her mother called. ER did not recall her calling and denied that CR’s mother called him in 1982 confronting him about molesting CR.

[175] He conceded on cross-examination that there may have been times he worked the odd afternoon shift and would get off at midnight and sometimes drink in the parking lot. He might get home at 2 am and stay on couch for a bit. He also agreed that he might fall asleep on couch.

[176] He agreed on cross-examination that he had a problem with hard alcohol, and it could impact his memory. He was still drinking hard alcohol between 1994 and 1997.

[177] On re-examination, he was directed to the transcript of his police statement where, at 8:49 pm, he said:

Singh …you know, if you told me-, if he told me this happened once and you said that’s possible I was really drunk and I don’t remember

ER No, it never happened, it’s never happened. I’m telling you right now, this is a lot of bullshit

GM’s Evidence in Reply

[178] GM was called in reply to ask about her discussions with AB regarding ER’s sexual abuse of her. GM’s evidence was that AB spoke with her about being sexually abused by ER. She could not recall the date of the conversation, but it was years before ER was charged. She recalls the conversation occurred while they were driving to a mall. On cross-examination, GM testified that this conversation occurred sometime between 2012 and 2014.

[179] GM’s evidence was that during this conversation, she asked AB why she was always ignoring her brother. GM testified that she told AB that he was not a monster, but that her father was. GM’s evidence was that AB said she forgave her father years ago and that CR kept on bringing up the past and she did not want to hear about it.

[180] GM also testified that AB told her that her aunt confronted her in Miramichi, and she admitted everything to her. During cross-examination, she said AB admitted that “all that stuff was true.” She testified that AB told GM she forgave her father and went to counselling for a month.

[181] According to GM, during this conversation, when AB said she forgave her father, she believed it was for being sexually assaulted by him.

[182] GM agreed that AB never told her any details of the sexual assaults but that when AB said she forgave her father, in GM’s mind, that was an admission that ER sexually abused her.

[183] She was cross-examined about her statement to the police dated April 26, 2017, and the following exchange:

Langis What do you know about AB?

GM I confronted her because my aunt confronted her, and she said that AB admitted it.

Langis Admitted to what?

GM To her father doing things. I tried to confront her and tell her if your father did these things to you, why is your brother the monster? Your brother’s not the monster, your father is.

Langis What do you mean, the monster?

GM She, like she hates CR, she’s blames like CR is wrong because he keeps on bringing it up. Well, he needs peace up here (indicates)

[184] She agreed that she did not tell the police that it was AB who admitted to her that her father did things to her but that it was her aunt who told her that AB admitted it to her. GM’s explanation for this inconsistency was that she must have forgotten that when she spoke with the police.

[185] She denied that AB told her she forgave her father for abandoning her.

Evidence of Officer DW in Reply

[186] Officer DW is a retired RCMP officer. He investigated ER. In February 2007, a witness, M (AB’s cousin), gave a police statement about an incident when she was 5 or 6 at her grandmother’s home. Her uncle, ER, called her into her bathroom and when she entered, he had an erect penis and asked if her daddy showed her this.

[187] During a second interview with M on January 20, 2009, she told DW that her cousin, AB, told her that when she was young, her uncle performed oral sex on her and that her father, ER, had sex with her but she had dealt with it and forgiven her father.

[188] DW testified that he then reached out to AB and spoke with her in October 2009. He told her that he was investigating her father because of information from M and that he wanted to talk to her as he was led to believe that things also happened to her. AB told him that she was aware of M’s allegation, but that she had been to counselling, loved her father, forgave him, and had put things behind her. She told him that she did not want to participate in an investigation, nor did she want an investigation done on her behalf.

[189] DW’s evidence was that when AB said she was aware of M’s allegations, he never gave it a second thought nor was there any doubt in his mind that when she said she forgave her father it was for having done things to her sexually.

[190] He agreed on cross-examination that AB never told him of any sexual activity involving her father. It was also his evidence that when he told her that he heard things happened to her, he never used the word “sexual.”

2. The Offences Involving KM

[191] There are two charges against ER with respect to KM. One is sexual assault contrary to s. 271 of the Code and the other is sexual exploitation contrary to s. 153 of the Code. According to that section at the time of the offence:

153(1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who for a sexual purpose, touches, directly or indirectly with a part of the body or with an object, any part of the body of the younger person, …

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years.

[192] To prove that ER is guilty of sexual exploitation, the Crown must prove four elements:

i. That ER engaged in a form of sexual conduct prohibited by s. 153(1).

ii. That KM was at least 14 and under the age of 18 when the conduct occurred.

iii. That ER had the mens rea for each element of the offence.

iv. That ER stood in a position of trust towards KM when the sexual acts took place.

[193] There is no dispute that there was sexual activity between KM and ER. As such, the first issue I must determine is whether that sexual activity occurred before or after KM turned 18. If I find beyond a reasonable doubt that it occurred before KM was 18, the second issue is whether ER was in a position of trust towards KM at that time.

When did the sexual activity occur?

(i) Review of the Evidence

[194] KM and ER testified about events that occurred at least 25 to 28 years ago. Despite this passage of time, while there is a dispute about when the alleged assaults occurred, there is some consistency between their evidence about what occurred and where it occurred. While there is that similarity, the real issue is whether the sexual contact between ER and KM commenced in 1994 and ended in 1997 as KM’s alleges or whether it commenced in 1997 and ended in 2004, as ER alleges.

[195] KM testified that he moved from New Brunswick to Ontario in 1994 with his mother, GM, as she had married a man from Ajax, Ontario. GM also testified that she met a man from Ajax in 1993 and she married him in July 1994. In March 1994, before the marriage, KM moved to Ontario and lived with GM and eventually her new husband.

[196] AB described having a close relationship with GM. Her evidence was consistent with KM’s and GM’s evidence about when KM moved to Ontario. She testified that KM moved to Ontario with GM in 1993. She testified that in 1997 KM moved back to New Brunswick for a few months and lived with her before returning to Ontario.

[197] AB testified that between 1994 and 1997 she was in Ontario two to four times. She would see her father and she also saw KM and ER together when she would visit. She recalled being at GM’s home when she was pregnant in 1994 and KM was living with GM at that time.

[198] ER testified that he did not recall KM moving to Ontario in 1994. His first memory of KM being in Ontario was in 1997. During cross-examination, he testified that he was not saying that KM did not live in Ontario commencing in 1994 but only that he had no memory of it.

[199] According to ER, he had three reasons to recall that the sexual activity with KM began in 1997: he bought a new home in Keswick that year, his daughter was released from a hospital and came to live with him, and KM moved to Ontario from New Brunswick and his girlfriend was pregnant.

[200] GM testified that after moving to Ontario in 1994, she and her husband socialized with ER and his spouse in Keswick where he lived. She considered ER to be not only her uncle but also a friend. KM would come with them to Keswick. He was 15 at that time and she did not want to leave him home alone in Ajax. When they went to Keswick, the adults would sit around a fire, drink, and play cards. They visited ER in Keswick about three to four times during the summer months and once or twice during the winter months.

[201] KM also testified that after he moved to Ajax in 1994, he would visit ER in Keswick with his mother and stepfather. There were times he stayed overnight at ER’s home while his mother returned home to Ajax. There were also times that ER drove to Ajax to pick him up to bring him to Keswick alone.

[202] According to KM, the first occasion of sexual contact was at ER’s home when he was 15 years old. They were sitting outside at the firepit. ER’s spouse was inside the house. GM was not there. KM recalled feeling uncomfortable and he was pulling his shirt down over his groin. He testified that ER asked him if he wanted to have oral sex in the shed located on the property. He walked into the shed with ER, and they pulled their pants down. He performed oral sex on ER. He could not recall if ER performed oral sex on him. They left the shed and never discussed what had occurred.

[203] When he was cross-examined about this incident, KM testified that he was pulling his shirt down as he was insecure. He was then asked what he was embarrassed about, and he said he did not know. He denied having an erection. He agreed that right after doing this, ER asked him to go to the shed. He also agreed that up to that point, there was no discussion about any sexual activity between himself and ER. He agreed that when he walked to the shed, he knew what was going to happen with ER in the shed. KM agreed that ER did not threaten him not to tell his parents.

[204] KM testified that there were approximately 13 other occasions where he and ER engaged in sexual activities. Oral sex was involved in each of those interactions. They performed oral sex on each other, sometimes at the same time. He recalled that they also engaged in sexual activities in ER’s car and in the living room of ER’s home. There was also an incident in his parent’s apartment in Ajax when his parents were not home.

[205] According to KM, he performed anal sex on ER, but ER did not do it to him. He could not recall the details of where or when this occurred. KM testified that he has been blocking out the details of these encounters for so long that it was now difficult for him to recall the details of the anal sex.

[206] The last time he had any sexual contact with ER was before his first child was born in February 1998. He just turned 19 when his daughter was born.

[207] KM testified that, prior to his daughter’s birth, he travelled back and forth between New Brunswick and Ontario several times. He lived in New Brunswick for a period both before and after her birth.

[208] When he returned to Ajax, he lived with GM until he was about 22 and then moved into his own basement apartment with his partner and child. When he was 24 or 25, he moved into an apartment in the same complex where his mother lived. He then moved back to New Brunswick in 2003 or 2004 and has lived there since.

[209] GM testified about when KM moved back and forth between Ontario and New Brunswick. According to GM, KM returned to New Brunswick when her grandmother passed away in 1997. He returned to Ontario later that year and then returned to New Brunswick in January 1998 before his daughter was born in February 1998.

[210] AB also testified that KM was living in Ontario at the start of 1997 and then returned to New Brunswick and lived with her from May to October 1997 before returning to Ontario.

[211] ER testified, in some detail, about several occasions when he and KM engaged in consensual sexual activity. His evidence was that two encounters were in 1997 and the remaining five occurred between 1998 and 2004.

[212] The first sexual activity occurred at his home in Keswick before moving to the new home, also in Keswick, in September 1997. His description of what occurred is similar to KM’s evidence about what occurred, although KM’s evidence was that it occurred in 1994.

[213] ER testified that he recalled that KM’s girlfriend was pregnant at the time. They were sitting outside at a fire. His wife went to bed. They were drinking beer and talking. He recalled KM covering up his groin area with his shirt. ER thought that KM might be embarrassed as he may have been sexually excited. ER went to the shed to urinate; there was a tube/pipe in the shed that was used for that purpose. KM followed him, closed the door, lowered his pants, and began to masturbate. While he was surprised, ER’s evidence is that he got excited, and began to masturbate as well. They did not say anything and returned to the fire and drank more beer.

[214] The next weekend, KM brought a tent to ER’s home. They again sat at the firepit drinking. ER did not know where GM was but recalled that his wife went into the house around midnight. At about 4 am he and KM went into the tent. There was no discussion about what was going to occur before they went into the tent. ER lay on his back. He felt KM’s hand on his groin area. They engaged in masturbation and oral sex.

[215] When he was cross-examined, KM agreed that the second sexual encounter with ER was in a tent set up in the backyard of ER’s home. He agreed that the sexual activity in the tent included masturbation and oral sex.

[216] ER testified about a third interaction with KM after his daughter was born in 1998. His wife was out of town. He did not know where GM was, but he testified that she and her husband liked to drive around a lot. He recalls that he and KM engaged in masturbation and oral sex in the bathroom of his home.

[217] The fourth time was in either 1999 or 2000 in Ajax in a blue minivan. ER drove to Ajax to spend time with KM. They were driving and ER testified that KM wanted to get things started. As ER did not want to get caught, he pulled over on a dirt road. Again, they engaged in oral sex and masturbation.

[218] The fifth time was less than a year later. He testified that KM and his daughter were living with GM in Ajax. He thought KM’s daughter was three or four years of age at the time. He testified that either he or KM called the other and KM asked him to pick him up and drive back to Keswick as he was bored. ER complied. As ER’s evidence was that all sexual interactions involved masturbation and oral sex only, I presume this was the activity they engaged in when they returned to Keswick. He was not asked where the sexual activity occurred on this occasion.

[219] The sixth interaction was not long after; he thought it was in 2004. He testified that at the time, KM was living with his girlfriend and daughter in a basement apartment. KM asked ER to come and hang out with him. He testified that they engaged in oral sex and masturbation in the living room of KM’s apartment.

[220] There was sexual conduct in 2004, after KM moved out of the basement apartment and was living in the same building where GM lived. Again, KM called him and asked him to come see him as he was bored. He testified that KM opened the door in the nude. He then asked if ER could pick up his wife so they could go to Keswick. He did and then drove them back the next day. Again, KM was not asked where the sexual activity occurred. It was not clear to me if it was in KM’s or ER’s home.

[221] The last interaction was when ER was visiting GM. KM daughter and girlfriend were there. GM asked him to go get KM in his apartment. He knocked on the door and KM opened the door naked. ER did not engage with him that time and left and returned to GM’s apartment.

[222] ER testified that KM moved back to New Brunswick shortly after the last incident and he has had no contact with him since. He has also had no contact with GM since 2004 and he believes that is when KM disclosed to her what occurred.

[223] According to ER, he and KM never spoke about their sexual encounters. He said the encounters would typically start with KM reaching for him. ER testified that he never said no. His evidence is that he is now ashamed of himself. He testified that he felt bad between 1997 and 2004 but that he had let himself “get caught up in it” and he does not know why. He testified that he guessed that he needed some sexual release. He did not tell anyone of these encounters until 2009 when he told his current spouse.

[224] ER testified that he and KM did not engage in sexual activity every time he was in Keswick. When KM asked his mom if he could spend the night, then there would be sexual contact.

[225] GM testified when she was being cross-examined that sometimes ER would drive to Ajax to pick up KM. She recalled an incident when a tent was set up at ER’s house and KM came in the house and told her that he did not want to sleep in the tent. He slept on the floor that night. She also agreed that she would also sleep over at ER’s house sometimes and when she did, she would sleep on a couch in the living room. She testified that KM would also sleep on the floor or couch.

[226] During cross-examination, she testified that she did not think that KM came with her and her husband to Keswick after he turned 18. She recalled that between the ages of 18 and 21, KM once went to ER’s home to help him with something, and another time ER went to KM’s apartment to use the washroom.

[227] GM disagreed with the suggestion that she frowned upon homosexuality. She denied telling KM when he was a child that it was wrong or improper.

Was ER in a position of trust or authority towards KM?

(a) Review of the Jurisprudence

[228] If I find that KM was under the age of 18, I must determine whether ER was in a position of trust or authority towards KM at the time. During the Crown’s closing submission, she indicated that it was the Crown’s position that ER was in a position of trust towards KM and not one of authority. She also conceded that based on KM’s evidence that he consented to the sexual activity, that ER could only be convicted of sexual assault if I find that he was in a position of trust and abused that position thus vitiating KM’s consent.

[229] I will first review some of the jurisprudence dealing with s. 153 of the Code. As the indictment only alleges that ER was in a position of trust or authority towards KW, I will not be addressing if there was a relationship of dependency. I will then review the evidence regarding their relationship.

[230] The nature of the relationship and whether there was a position of trust or authority must exist independently of the sexual relationship between the accused and the young person: R. v. G.(C.) (1994), 1994 215 (ON CA), 18 O.R. (3d) 247 (Ont. C.A.), at para. 14 and R. v. D.M., 2019 ONSC 3911, [2019] O.J. No. 3512, at para. 18. As will be reviewed, the focus of the questioning and the evidence I heard was limited to the sexual activities that ER and KM engaged in. Very little, if anything, was introduced about their relationship beyond the undisputed fact that ER was KM’s great-uncle and that they would see each other, prior to 1994, when ER would visit family and friends in New Brunswick.

[231] In R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171, the Court analyzed the meaning and scope of s. 153(1) of the Code. In that case, a teacher engaged in sexual activities with a former student. She had just turned 14 at the time of the assault. The Court found at para. 13 that proving sexual exploitation did not require the Crown to prove that the accused exploited his or her position of trust or authority toward the young person. The Court also commented that Parliament passed s. 153 of the Code to protect young persons who are in a vulnerable position with respect to certain persons because of an imbalance inherent in the nature of the relationship between them: para. 14.

[232] Based on Audet, the Crown does not have to establish a connection or nexus between the relationship and the activity but only that such a relationship existed at the relevant time: R. v. P.S, 2021 ONSC 1388, [2021] O.J. No. 881, at para. 198.

[233] A person charged under s. 153(1) cannot raise the young person’s consent as a defence (s. 150.1 of the Code); Audet at para. 16. The Crown must prove that the complainant is a young person as defined in s. 153(2), that that accused engaged in one of the activities described in s. 153(1), and that at the time the acts were committed, the accused was in a position of trust or authority towards the young person, or the young person was in relationship of dependence with the accused; Audet at para. 16.

[234] While my analysis is limited to whether ER was in a position of trust, it is nonetheless informative and useful to consider the two concepts of trust and authority, which are similar. In R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), Blair J commented on the difference between the terms at para. 37 as follows:

I take a “position of trust” to be somewhat different than a “position of authority”. The latter invokes notions of power and the ability to hold in one’s hands the future or destiny of the person who is the object of the exercise of the authority: see, R v. Kyle (1991), 1991 11758 (ONCA), 68 C.C.C. (3d) 286 (Ont. C.A.). A position of trust may, but need not necessarily, incorporate those characteristics. It is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached.

[235] In Audet, the Court also considered the difference between the terms “position of authority” and “position of trust”. The Court concluded that the meaning of the term “authority” must not be restricted to cases in which the relationship of authority stems from a role of the accused. Rather, authority must extend to any relationship in which the accused exercises such a power. It is the nature of the relationship between the young person and the accused rather than their status in relation to each other that must be considered; Audet at para. 34.

[236] With respect to the term “trust”, the Court found at para. 35 that it

must instead be interpreted in accordance with its primary meaning: “[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement” The word “confidence” is defined as follows: “[t]he mental attitude of trusting in or relying on a person or thing; firm trust, reliance, faith”.

[237] The Court also noted at para. 37 that the concept of “position of trust” is difficult to define in the abstract in the absence of a factual context. As such, it will be left to the trial judge to determine whether the accused was in a position of trust or authority towards the young person. Some factors to consider include the age difference, the evolution of the relationship, and the status of the accused in relation to the young person.

[238] In R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027, the accused was 28 and was hired as a tutor for the complainant who was 17. The Court found that Parliament chose not to specify the relationships that would constitute relationships of trust under s. 153(1) because of the varied circumstances in which these relationships can arise. Such an inquiry will be fact specific: Aird at para. 27. The Court then listed the following factors to consider in determining whether a relationship comes within s. 153, noting that no one factor is determinative:

i. The age difference between the accused and the young person;

ii. The evolution of the relationship;

iii. The status of the accused in relation to the young person;

iv. The degree of control, influence or persuasiveness exercised by the accused over the young person; and

v. The expectations of the parties affected, including the accused, the young person and the young person’s parents.

[239] In R. v. Toombs, 2017 ONSC 2625, [2017] O.J. No. 2206, the accused was 54 when he had a sexual relationship with the complainant who was 16 years old. The sexual activity commenced after the accused’s relationship with the complainant’s mother ended. Relying on Audet, the Court listed the following factors at para. 36:

• The age difference between the accused and the young person - the higher the age difference, the more likely it is that the relationship is a trust relationship.

• The status of the accused - the more formal the relationship (teacher, father figure, big brother, mentor, etc.) the more likely it is that the relationship is a trust relationship.

• The degree of control, influence or persuasiveness exercised by the accused over the young person.

• The expectations of the parties affected, including the accused, the young person and the young person’s parents.

• The vulnerability of the young person – i.e., his or her level of intelligence, sophistication, independence, and maturity and relationship with his or her parents.

• Any grooming, pressuring, or incentivising behaviour on the part of the accused – i.e., denigrating the young person’s parents; engaging in sexual discussions and sexualizing the young person; and offering benefits, particularly things the young person cannot get or do at home (drug, alcohol, etc.)

[240] In summary, based on a review of the jurisprudence, the following is clear:

• Consent is not a defence to the offence of sexual exploitation.

• The Crown need only prove the existence of one of the relationships be it trust, authority or dependency, and not whether it has been abused.

• The determination of whether such a relationship exists is a fact specific, case-by-case analysis involving a contextual approach or a review of all the circumstances of the case.

(b) Review of the Evidence

[241] With these legal principles in mind, I will now review the evidence regarding KM and ER’s relationship.

[242] It is also necessary to look at how the relationship between ER and KM evolved. I will start with a review of the evidence about their relationship in New Brunswick and how that evolved, or did not evolve, when KM moved to Ontario in 1994.

i) Relationship in New Brunswick Prior to 1994

[243] To understand the relationship between ER and KM, it is informative to consider the relationship between ER and GM. There is no dispute that ER and GM had a close relationship. They were raised together. GM said she viewed him as a brother more than as an uncle. She also said they were friends and that she visited him frequently in Ontario. ER also testified about his love for GM.

[244] GM testified that her relationship with KM’s father ended in 1980. In 1982, when KM was four years of age, she moved to Ontario, with KM, and lived with ER for six months. She testified that at the time, she thought ER was the best uncle in the world.

[245] ER testified that after he moved to Ontario in 1967, he would travel to New Brunswick to see his children as often as he could, sometimes 13 to 14 times per year. GM testified that ER would stay with her and KM. She agreed that he also stayed with other family or friends.

[246] KM testified that he saw ER during those visits and at other family events such as weddings and funerals. KM did not testify that he had a close relationship with ER. He only saw ER when he visited. He agreed during cross-examination that ER would stay at his home and with other family members when he visited. He also agreed that he did not maintain any contact with ER such as through phone calls or letters.

[247] The evidence from all who testified was that ER was an alcoholic. KM agreed that when ER visited New Brunswick, he spent his time mostly drinking with his friends and family. When he stayed with GM and KM at their home, he would go out drinking.

[248] ER also testified that when he was in New Brunswick, he spent most of his time drinking and partying with his friends. He testified that he never spent any time with KM and did not see him that often. He did not discipline him or buy him anything.

[249] There was no evidence that ER spent time with KM or engaged in any kind of activity with him when he visited New Brunswick. KM agreed with the suggestion during cross-examination that ER did not help to raise him at all. He agreed that he did not see him often in New Brunswick. He also agreed with the suggestion that he did not look up to ER as a role model.

[250] During cross-examination, GM agreed that when ER visited New Brunswick, prior to 1994, his objective was to go out drinking. She said he would sleep “here and there” and one time she found him in the middle of the street. She agreed that he did not visit to spend time with KM or his own two children. She agreed that ER was not a good role model for younger people.

[251] AB was asked about her observations of the relationship between ER and KM. She testified that it seemed like a normal relationship, and that ER was always close to GM and to KM. From what she could see, KM loved ER and called him uncle.

[252] KM testified about two incidents that occurred prior to 1994 where ER exposed himself to KM in his mother’s home in New Brunswick when ER was visiting. The first incident occurred in the basement of his mother’s home when ER lifted a blanket and exposed his penis to KM. He invited KM to come under the blanket, but KM declined. KM recalled another incident, less than one year later, that occurred on the top floor of his mother’s house, outside the bathroom, where ER exposed his penis to KM.

[253] KM agreed during cross-examination that when ER exposed himself to him, ER did not tell him not to tell anyone. He did not threaten him.

[254] During cross-examination, KM testified that he told his mother about these two incidents shortly after they occurred, but he could not recall her response. When asked if his mother took steps to protect him from ER after he told her of these events, his answer was “I guess.” He agreed that GM was suspicious of ER and took steps to limit contact with ER. He agreed that GM kept a close eye on him when they lived in New Brunswick and Ontario.

[255] On cross, he agreed that after these exposures, he did not trust ER and did not respect him. He agreed he did not view him as a role model.

[256] GM testified that KM did not tell her about these exposure incidents. KM’s first disclosure to her about ER “molesting” KM was in 2004, just before KM moved back to New Brunswick. When cross-examined, her evidence was that this came as a complete surprise to her. GM testified that the day before KM was to return to New Brunswick in 2004, he was hospitalized due to an attempted overdose. Her evidence was that after he was discharged, he disclosed that ER had molested him. GM’s evidence was that he asked her if his girlfriend would still love him if he had been with a man. She said that KM has never disclosed any details of the sexual activity with ER.

[257] She also testified during cross-examination that she heard stories in 1997, when her grandmother (ER’s mother) passed away and that her brother asked her to check with KM to see if anything happened between him and ER. Her evidence was that she asked KM in 1997 and he denied that anything happened between him and ER.

[258] KM also testified about another incident that occurred in a car in a parking lot at a hotel, when he was between the ages of 12 to 14. ER asked him if he tried anything with his friends and if they masturbated each other or would “cornhole”, which ER explained to KM was putting your penis between someone’s legs.

[259] ER denied exposing himself to KM in New Brunswick.

Relationship in Ontario After 1994

[260] GM testified that after moving to Ontario in March 1994, she and her new husband socialized with ER and his spouse. She considered ER to be a friend. Her evidence was that KM came with them to Keswick when they visited ER. She said they would have a bonfire, drink, and spend the night. She and ER continued to socialize until she moved back to New Brunswick in 2004.

[261] KM’s evidence was that when he moved to Ontario, he would go with his parents to Keswick to see ER. Sometimes he would stay longer than his parents, who would go home. He would stay there on weekends or for a couple of days. Other times, ER would drive to Ajax to pick him up; KM did not drive at the time. He also testified that sometimes ER would just show up at their home in Ajax.

[262] During cross-examination, KM agreed that he did not maintain any other contact with ER when he lived in Ontario. He only saw him in person. There was no other communication between them such as through phone calls, letters, or emails.

[263] ER agreed on cross-examination that there were several times that GM brought KM to Keswick and left him there. He did not agree that this occurred before KM was 18 and insisted it was after.

[264] ER denied grooming KM to normalize sex with him. He said the first time they engaged in sexual activities in the shed he was overcome by sexual desire. He knew it was wrong, but he enjoyed it. The following week when he went into the tent with KM, he testified that he did not think that something sexual would happen.

[265] On re-examination, ER testified that GM never let KM out of her sight.

ANALYSIS - KM

When Did the Sexual Activity Occur?

[266] Given the conflicting evidence between KM and ER about when the sexual activity commenced, I must make credibility and reliability assessments. Because ER testified, my assessment is grounded in the W.(D.) principles as set out above. I must not decide this case merely by choosing between competing versions of events. I must acquit if I have a reasonable doubt on any of the essential elements of the offence, even if I do not believe ER’s version of events: R. v. MacKenzie, 2020 ONCA 646, 395 C.C.C. (3d) 421, at para. 22. I must consider all the evidence and decide whether I am satisfied, beyond a reasonable doubt, that the events that form the basis of the charges occurred and that ER committed those offences.

[267] The W.(D.) instruction is modified with respect to the offence of sexual exploitation when determining if the accused is in a position of trust towards the young person. It is not the view or opinion of ER that he was not in position of trust towards KM that is determinative of the issue. Rather, I must consider the facts and circumstances and use a contextual approach in assessing whether ER stood in a position of trust towards KM. ER’s view of the nature of his relationship with KM is only one factor I consider: R. v. P.S., 2021 ONSC 1388, [2021] O.J. No. 881, at para 188.

[268] KM’s age at the time of the sexual activity with ER is an essential element of the offence of sexual exploitation that the Crown must prove beyond a reasonable doubt. If I believe ER’s evidence that his sexual encounters with KM commenced when KM was 18 years old, I must acquit ER on both counts of sexual exploitation and sexual assault.

[269] The credibility of a witness is determined by addressing the credibility and reliability of a witness. Trial judges rely on several factors to assess the weight to be given to a witness’s evidence. Some of those factors are set out in Darkins v. Jones, 2020 ONSC 1299, [2020] O.J. No. 965, at para. 11:

1. Does the evidence make sense?

2. Does the evidence have an internal consistency and logical flow?

3. Are there any prior inconsistencies, and if there are, how significant are they and are they adequately explained?

4. Is there independent confirming or contradicting evidence?

5. Is there an interest in the outcome or a motivation to lie?

[270] None of these factors are alone determinative. I have considered each of these factors in assessing the credibility and reliability of the witnesses.

[271] There are only two people who know at what age ER and KM first had a sexual encounter. I will first start with why I find KM’s evidence to be credible.

[272] KM was clearly uncomfortable when he testified. It was evident that KM had difficulty testifying about what occurred between himself and his uncle. His answers were brief. When he was cross-examined, he readily admitted to many suggestions put to him. For example, he agreed that he consented to the sexual activity with ER. He also agreed with the suggestion that 50% of the time, he initiated the sexual encounters. These were very candid admissions that were against his own interest. These admissions caused KM obvious discomfort when he testified. He did not overstate or exaggerate his evidence. This does not mean he was credible, but this candor is a factor I have considered in assessing his credibility and reliability.

[273] The defence argues that there were inconsistencies between some of KM’s evidence and that of the other witnesses. I do not find that any of the inconsistencies detract from his overall credibility and reliability as a witness.

[274] One inconsistency related to his past use of drugs. During cross-examination, he was asked if he had any “issue” with drugs or alcohol and he said he used marijuana. GM testified that she believed he used cocaine and acid in the past but was able to stop using those drugs. She also testified that in 2004, when he disclosed the sexual conduct with ER to her, he was hospitalized for an overdose. It was not clear to me what type of overdose that was. For example, it may have been due to prescribed medication.

[275] I don’t consider that this is necessarily an inconsistency with respect to KM’s drug use. KM was asked if he had an “issue” with drugs or alcohol. He was not asked if he ever used drugs in the past. Thus, while he may have used or tried other drugs, there was no conflicting evidence that he had an “issue” with drugs. The overdose may also have been a one-time event and it may have been related to prescribed medication. Even if this was an inconsistency, it is a peripheral issue as there is no evidence that drug use played any role in the events described by KM and ER.

[276] KM was cross-examined about the statement he gave to the police on August 24, 2017. In that statement, he said he did not recall if he and ER engaged in anal intercourse which is inconsistent with his evidence at trial that he performed anal sex on ER. He agreed there were gaps in what he recalled, and that he had blocked out details.

[277] KM also agreed that he did not tell the police about the sexual activity that occurred in a car or in a home and the first time he mentioned those locations was at the preliminary hearing. His explanation for not telling the police was that he did not think he had to tell the police each place where he and ER engaged in sexual activity.

[278] I do not consider any inconsistencies between what KM told the police and his evidence at trial to call into doubt his overall credibility and reliability as a witness. Given his age at the time of the sexual activity, and as it involved his uncle, it would be expected that KM would try to block out details, such as anal intercourse. I also accept as reasonable his explanation about why he did not tell the police all locations of the sexual activity. Victims of sexual assault may never disclose the assaults, may delay disclosing, and in other cases, the disclosure may be more incremental. There is no one way how victims of sexual assault will behave or disclose: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R 275, at para. 66.

[279] I am also mindful that there were several similarities and consistencies between KM’s and ER’s evidence about where the sexual activity occurred. Locations included the shed, the tent, a car, in ER’s home, and in either KM’s or GM’s home in Ajax. They also both agreed that the activity included masturbation and oral sex. While ER denied any anal intercourse, KM’s evidence was that it occurred, but he could not recall any of the details other than that he was the one who performed it on ER.

[280] I accept KM’s explanation that he has blocked out the memories of the sexual conduct for so long making it difficult to remember the details. When KM testified, it was obvious how difficult he found answering questions about what occurred with ER. He gave very brief answers to each question. While demeanour plays a limited role in my assessment of credibility, I accept that, as a matter of human experience, it would be traumatizing for a young man to discuss details of his sexual relationship with a great-uncle. Furthermore, the presence of inconsistences, particularly on peripheral matters such as time and location, should be considered in the context of the age of the witness at the time the events took place: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

[281] Another inconsistency is his evidence that he disclosed to GM that ER exposed himself to KM shortly after it occurred in New Brunswick. GM denies that he told her about this and says she was first told that ER molested KM in 2004.

[282] GM’s evidence that she was not told about the exposure incidents prior to moving to Ontario is consistent with her conduct of allowing her son, of whom she was protective, to spend time alone with ER. In 2004, when she was told by KM what occurred, she immediately ended her relationship with ER and has never spoken to him since. Had she been told earlier of ER exposing himself, twice, to KM, it is inconsistent with her subsequent behaviour that she would have allowed her son to spend time with ER on his own.

[283] Thus, I do not accept KM’s evidence of disclosing the exposures to GM before they moved to Ontario. This finding does not lead me to conclude that I reject all his evidence or find that his credibility is so impaired that I cannot accept any of his evidence.

[284] The defence also argues that there was an inconsistency between CR’s and KM’s evidence about what they discussed on the phone when KM contacted CR and they spoke for the first time in 20 years. CR’s evidence was that KM was crying and told him that he believed CR as the same thing happened to him. KM’s evidence when he was cross-examined was that when he spoke with CR on the phone, CR did not tell him many details of what occurred with ER as he did not want to listen to them. I do not find this to be inconsistent with CR’s evidence. While there are inconsistencies about what they both recall of what was discussed, at the core, they both agree that there was a phone call in which there was some discussion of the allegations involving CR and ER. Furthermore, CR’s and KM’s evidence was consistent that nether disclosed the details of the sexual activity with ER.

[285] When he was cross-examined, KM agreed with the suggestion that he had heard rumours from family members, including his mother, about ER having a sexual relationship with CR and AB, before he went to the police to give his statement on August 24, 2017. He also testified that ER told him that he had engaged in sexual activities with AB and CR.

[286] Thus, while there were some inconsistencies in his evidence, KM was not shaken on the core of his evidence of the sexual activity with ER and that it started when he was 15 years old when he moved to Ontario with GM.

[287] The defence has no obligation to prove motive of a complainant. However, proof of motive to fabricate is relevant to the assessment of credibility. The defence argues that KM is being deliberately deceptive about the age when the sexual activity commenced as he does not want to admit that he had a consensual adult sexual relationship with a male as he is fearful of being considered gay. For that reason, the defence argues I should find KM not credible.

[288] In my view, there is little evidence to support the theory that KM was so fearful of being considered gay that he lied about what age the sexual activity commenced. Neither KM nor GM testified that they had any negative views about homosexuality. The only evidence led to suggest otherwise was ER’s evidence that when he was young, GM did not want KM playing with or wearing things that were pink.

[289] If KM had such a fear of being considered gay, why then would he disclose the sexual activity with ER to his mother in 2004, and why go to the police in 2017? Surely if he was so fearful that his family might consider him to be gay, he would not want anyone to know of his sexual activity with his uncle, which he agreed was consensual. Thus, I do not accept that KM had motive to lie about the age at which the sexual activity commenced. It is not a factor I have considered in assessing his credibility.

[290] I will now turn to ER’s evidence. He presented his evidence clearly. He was not defensive or confrontational. Nonetheless, I reject his evidence that KM did not live in Ontario until 1997. The overwhelming evidence is that KM was living with GM in Ajax during those years, and I find that KM was living in Ontario in 1994.

[291] ER appear to resile from his original position that KM did not live in Ontario in 1994 when he was cross-examined. He testified that it may be that he simply did not recall KM living in Ontario between 1994 and 1997.

[292] The evidence of AB, who testified on behalf of her father, was consistent with the evidence of GM and KM that KM moved with his mother and lived with her in Ontario after she married in 1994.

[293] ER testified in detail of the individual sexual interactions he had with KM which he said commenced in 1997. It is difficult to reconcile that sort of detailed, clear memory with his complete inability to recall KM living in Ontario between 1994 and 1997 or being at his home during those years.

[294] Having found that KM lived with GM in Ajax between 1994 and 1997, I also find that KM went to Keswick with GM during those years when she visited ER. ER’s own evidence was that GM never let KM out of her sight and when he would see them in New Brunswick, KM would always be sitting beside her.

[295] This is consistent with GM’s evidence that when she moved to Ajax, she would not leave KM home alone when she went to Keswick. KM was GM’s only child and based on ER’s own observations, she was protective of him. It is logically consistent, therefore, that she would bring KM with her to Keswick starting in 1994.

[296] It is possible that ER’s abuse of alcohol may have had an impact on his memory. ER testified about having blackouts in the past when he drank. He was still drinking what he described as hard alcohol between 1994 and 1997 which he said could impact his memory. This may account for his impaired memory of KM living in Ontario between 1994 and 1997 or being at his home in Keswick during those years. This raises a reliability issue with respect to his evidence.

[297] There was also a submission that an explanation for ER’s memory lapse of when KM moved to Ontario is that ER was testifying about events that took place 25 years ago making impairments with his memory understandable. While I agree with the general proposition that memories fade with the passage of time, the passage of time appears to have had more of a selective impact on ER’s memory as he can recall the details of each sexual encounter with KM very clearly but not KM being at his home between 1994 and 1997.

[298] It would be credible that ER did not recall KM being at his home during those years if the evidence was that KM was only at his home in Keswick once or twice. Based on GM’s evidence, they socialized with ER several times per year and KM came with them until he was 18. Thus, I do not find it credible that ER would not remember KM being at his home when he was there so frequently.

[299] ER’s evidence is that his memory of the sexual activity commencing in 1997 is grounded in a number of life events at the time which included his daughter being released from hospital, buying a new home, and KM’s girlfriend being pregnant. Despite this, I find his evidence about when the sexual activity commenced not credible. Again, it is hard to reconcile his clear recollection that sexual activity with KM commenced in 1997, based on these other life events, when he cannot remember KM being at his home several times per year between 1994 and 1997.

[300] Based on ER’s evidence, his first memory of KM in Keswick involved sexual activity with KM, in the shed, without a word spoken before or after. Based on his evidence, his nephew, whom he knew all his life, but with whom he said he had minimal interaction, pulled his pants down and started to masturbate in front of him. ER, who is 33 years older than KM, was 51 years old at the time if KM was 18 as ER testified. ER testified that he became sexually aroused by his nephew, even though he said he had never had sex with a man, and, rather than leave, he started to masturbate as well. They then went back to the fire – and not a word was spoken.

[301] The following week, KM was back at his home and told ER he wanted a tent set up. Again, without any talking in advance, ER’s evidence is that he went into the tent to sleep, not thinking anything sexual was going to happen. His evidence was that for the second time, KM initiated the sexual contact, in this instance by reaching over to grab ER’s penis.

[302] I find it implausible that ER would not be anticipating sex with KM when he went into the tent given what had transpired one week earlier. His evidence in that regard lacks the ring of truth.

[303] Furthermore, his evidence that the first time he saw KM in Keswick, KM initiated sexual activity with him by following him into a shed and masturbating, without anything being spoken, lacks plausibility. What also lacks plausibility is his evidence that he, a 51-year-old man, who had never had sex with a man, would become instantly aroused by his nephew and, rather than leave, also masturbate.

[304] I have also considered the evidence of both ER and KM about the first incident in the shed. Both ER and KM testified that KM was pulling his shirt down over his groin area while they sat at the firepit. ER thought it was because KM may have had an erection and may have been covering it up. KM used the words “uncomfortable” and “insecure” to explain why he was doing this and then testified that he did not know why he was embarrassed. In my view, this behaviour is more consistent with a 15-year-old boy than an 18-year-old who was about to become a father.

[305] Whether KM was feeling insecure and embarrassed or hiding an erection, his behaviour of pulling his shirt down over his groin area is consistent with a young teenager who may be experiencing feelings that he does not understand or be in a situation that made him feel vulnerable.

[306] The Crown’s theory is that ER was being purposely untruthful about when the sexual activity occurred as he knows that if KM was 18 at the time, while morally reprehensible, there would be no crime. The defence counters that if ER was going to be deliberately deceptive, why would he admit to any sexual contact at all? I agree with the Crown that knowing that GM was aware of the allegations, it would be difficult for ER to deny there was any sexual activity between himself and KM but by changing the age when it occurred, there would be no criminal sanctions for his conduct.

[307] I cannot reconcile the specificity of ER’s memory of each sexual encounter with KM and his insistence that it commenced when KM was 18 with his inability to recall KM being at his home between 1994 and 1997. That selective memory, on the pivotal issue, being the age of KM when the sexual activity commenced, leads me to reject ER’s evidence that the sexual encounters only started when KM was 18. The clarity of his memory of each encounter stands in stark contrast to his lack of memory of KM being at his home in Keswick before he was 18. This lack of memory is convenient as there is no offence if the sexual encounters occurred only after KM was 18. I therefore do not accept his denial, nor does it leave me with a doubt.

[308] Even if I were to find that ER’s evidence is credible and reliable, when I consider the mutually reinforcing evidence of both KM and CR, I reject his evidence. I reject it not just based on a preference of KM’s evidence, but with the enhanced similar fact circumstantial evidence that satisfies me, beyond a reasonable doubt, that the sexual activities with KM commenced when he was under 18 years old.

[309] When considering the similar fact evidence, I must also address the issue of collusion. I am satisfied that there is no evidence of collusion between CR and KM. Both CR and KM testified that they had no contact with each other until after CR went to the police in March 2016. They both testified that they did speak on the phone one week later, but neither told the other any details of what occurred with ER. While CR was made aware by his aunt that something happened between KM and ER before he went to the police, he was not given any details.

[310] Furthermore, GM was not shaken on her evidence that while she was told by both KM and CR that ER had sexually assaulted them, she never told KM and CR what she knew of the other. While KM testified of family rumours, there was no evidence that either KM or CR had any information or any details of the alleged assaults.

[311] There was some inconsistency between the evidence of GM and CR with respect to when CR disclosed the sexual abuse to her. GM says it was in 1996 and CR says it was between 2004 and 2008. Nothing turns on which of those dates is correct. GM’s evidence is that she never spoke to KM about what CR disclosed to her nor did she tell CR what KM told her in 2004. When CR went to the police in March 2016, he only knew from his Aunt E, who told him in 2014, that there was talk that something had happened with KM, but he did not know any details.

Was ER in a Position of Trust to KM?

[312] In determining if a relationship is captured by s. 153 of the Code, the court must consider all the circumstances in a contextual approach.

[313] It is not disputed that ER is KM’s great-uncle and is 33 years older than KM. KM referred to him as “uncle” although he was actually his grandmother’s brother making him his great-uncle. Those are two factors which lean towards a finding of a position of trust.

[314] Just as not every teacher stands in a position of trust or authority over a student, not every uncle or aunt would be in a position of trust with respect to a nephew or niece. The title or position of the person is not determinative. Just because ER was KM’s uncle does not automatically mean he held a position of trust toward KM. I must still look at the facts and circumstances of the relationship.

[315] The relationship of ER and KM evolved over time. While KM lived in New Brunswick, he would see ER when he visited. ER would stay at times with KM and GM when he was in New Brunswick. ER was not a distant uncle that KM never saw. There was also a six-month period in 1982 when KM and GM lived with ER which is part of the factual context to consider.

[316] While there was no evidence that ER assumed any sort of parenting or disciplining role towards KM, the Crown is not alleging that ER was in a position of authority towards KM.

[317] A person is in a position of trust towards a young person when the relationship between them creates an obligation or responsibility on the adult.

[318] The relationship evolved when KM moved to Ontario in 1994. He then began to spend time with ER. He spent time with ER alone at his home. His parents would leave him there. ER would pick KM up in Ajax and drive him back to Keswick. This became more than a relationship of a distant uncle and nephew as they spent time together, alone, over at least a three-year period.

[319] GM’s expectations are also part of the factual matrix to consider. She testified about her close relationship with ER whom she saw more as a brother than an uncle. She also considered him to be a friend and regularly socialized with him in Keswick, with her son present. When she went to Keswick, she did not leave KM home alone. She brought him with her. She would not have permitted her son, of whom she was protective, to be left alone with his uncle if she knew ER was going to be engaging her son in sexual activities. Leaving her son with ER demonstrates her belief that KM would be safe at ER’s home with ER.

[320] KM described ER exposing himself twice, before he moved to Ontario, and talking to him about masturbation and “cornhole”. While ER denied this occurred, in my view, that grooming-type behaviour is consistent with laying the groundwork for ER’s sexual activities with KM at his home in Keswick, which I have found took places when KM was under 18 years old. This is also a factor to consider in assessing if ER stood in a position of trust towards KM.

[321] KM agreed that he did not look up to ER as a role model. He also agreed that after ER exposed himself, he did not trust him. He knew that the exposure was inappropriate. He also agreed that he did not respect him as a relative.

[322] KM’s lack of respect for or trust of ER is not determinative of the issue. As the Court noted in Aird at para. 24, whether the young person does not appear vulnerable or does not subjectively view the relationship as one of trust is irrelevant.

[323] As stated in Audet, the purpose of s. 153 is to protect vulnerable young people. KM was such a young person who needed to be protected from his predatory uncle. I find that ER was in a position of trust with respect to KM when the sexual activity occurred. I therefore find ER guilty of count six – sexual exploitation.

Was there an Abuse of the Position of Trust?

Section 273.1(2)(c) of the Code states as follows:

No consent is obtained for the purposes of s. 271…where

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority;

[324] In R. v. Lutoslawski, 2010 ONCA 207, 326 D.L.R. (4th) 637, the Court of Appeal considered s. 273.1(2)(c) of the Code. At para. 12, the Court held that this section of the Code does not imply a coercive use of authority to overcome resistance to a consent. Rather, a person in a position of trust over another “may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.”

[325] In Lutoslawski, the Court agreed with the finding in R. v. Makayak, 2004 NUCJ 5, [2004] Nu.J. No. 3, at para. 70 that “the use of the word “induces” introduces a more subtle form of pressure that can be inferred from the circumstances of the exercise of the power or authority.”

[326] During submissions, defence counsel argued that there was no evidence that ER said anything to KM such as “every nephew does this for his uncle” which he argued would be evidence of an abuse of a trust relationship. In my view, that is more of coercive-type behaviour that is not required by s. 273.1(2)(c).

[327] There is little evidence of what ER and KM discussed on any of the occasions that they engaged in sexual activity except for the first instance that occurred in the shed. Both ER and KM testified about KM pulling his shirt down over his groin area. While KM said he did this as he felt insecure and did it out of habit, ER testified that he thought KM might have been aroused. In this context, ER then asked KM to go to the shed for oral sex. In my view, those circumstances constitute a more subtle form of pressure. KM was a 15-year-old boy at the time. His uncle, 33 years his senior, knew that KM was demonstrating behaviours of either trying to hide an erection or, at the very least, suggested a feeling of ill ease or discomfort. ER abused his position of trust by taking advantage of KM at that moment and suggesting to him that they go to the shed for oral sex. Under those circumstances, KM’s consent was vitiated.

[328] There was no evidence that ER threatened, cajoled, or bribed KM to engage in sexual activities. KM’s evidence was that he consented to the sexual activity. Nonetheless, when considering that the test for determining when consent is vitiated is not one of coercive behaviour but of a more subtle pressure inferred from the circumstances, I am satisfied beyond a reasonable doubt that ER used the personal feelings and confidence engendered by the relationship to secure an apparent consent to sexual activity commencing when he first took advantage of KM by inviting him to follow him into the shed to engage in sexual activity

[329] I therefore find ER guilty of count five – sexual assault.

ANALYIS - CR

Did ER Sexually Abuse CR?

[330] It was clear by his demeanour that CR harbours a great deal of anger towards ER. His anger and animosity did not detract from his credibility. He was unshaken on cross-examination on the core of his evidence regarding the sexual assaults that he said occurred.

[331] CR testified in a manner distinctly different from KM. CR was able to testify in detail about the sexual abuse. He also recalled in detail the events of the altercation with ER in 1989 which the defence says is the source of his hostility towards ER and thus his motive to fabricate.

[332] If I only had to decide whether ER sexually abused CR on a balance of probabilities, I would accept CR’s evidence and find ER guilty. In my view, ER is probably or likely guilty but that is not enough to convict. The standard of proof is much higher in criminal matters, as it should be, when a person’s liberty is at stake. An accused is not to be disbelieved simply because the complainant is believed. The rigour of W.(D.) requires me to not simply choose or decide if I prefer the Crown or defence version of events. The burden is on the Crown to prove guilt beyond a reasonable doubt. As noted by my colleague D.E. Harris J. in R. v. Vigon-Campuzano, 2020 ONSC 587, [2020] O.J. No. 351, at para 66:

Finding guilt based on a choice between two opposing versions lowers the beyond a reasonable doubt burden on the Crown to a balance of probabilities and places an onus on the defence to prove innocence.

[333] CR withstood the rigours of cross-examination and was not shaken on his evidence about the details of the sexual abuse. I found him to be credible and reliable. While the defence suggested his motive to fabricate was based on years of anger and hostility towards his father flowing from the 1976 ring incident and 1989 physical fight between them, it defies common sense that these events, occurring so many years in the past, would ground CR’s motive to fabricate. I have therefore not considered this alleged motive in my assessment of CR’s credibility or reliability.

[334] The defence also argues that based on the physical layout of the two homes where CR says he was sexually assaulted, and the evidence regarding ER’s work shifts, that it is implausible that the sexual assaults could have occurred when and where CR says they did.

[335] CR testified that ER sexually assaulted him on approximately 40 to 50 occasions on the couch in the living room of the first home. CR anchored his recall of the time of those assaults to a train that would waken him at night. As they lived at the first house for approximately 4 years, that would be 10 to approximately 12 assaults per year. Given the totality of the evidence, I do not find CR’s evidence to be implausible that 10 to 12 times per year, ER sexually assaulted him while laying on the couch in the living room. While ER testified that he primarily worked the overnight shift meaning he would not get home until 7 am, just before CR and AM went to school, there is also evidence that at times he worked other shifts. Furthermore, these sexual assaults could have occurred on weekends or days when ER was not working.

[336] CR suffers from several mental health issues including bipolar disorder and depression. While he was cross-examined extensively about why he did not give defence counsel the name of one his doctors for the purpose of a third-party record application, I accept CR’s reasonable explanation that he only saw this doctor very briefly and he then passed away. I do not find that CR acted in a deliberate manner and purposely withheld that doctor’s name from defence counsel.

[337] To be clear, no medical evidence was led, and I do not find that CR’s mental health conditions in any way detracted from his credibility and reliability as a witness.

[338] He was cross-examined about an inconsistency in his evidence about how he described the damage to the skin near his testicles when ER would rub his penis between his legs. In my view, that is a minor inconsistency – whether the skin was ripped or cracked or just chafed. Nothing turns on that. I do not expect an adult witness, testifying about what occurred to him as a youth, to remember exactly how his skin was damaged over four decades later.

[339] CR was asked why he went back to see ER in 1987 and 1989 after years of being sexually abused by him. He testified that he simply wanted to have a relationship with his father. That makes sense. It is not uncommon that persons who are victims of sexual assault will either remain with or return to their abuser. It is a fallacy to think that everyone who suffers abuse or is sexually assaulted immediately runs away and never returns. We know better now. We know that victims react in unpredictable ways for a variety of reasons. Returning to an abuser is not evidence that an assault did not occur. That dynamic is further complicated when the abuser is a parent. CR’s return to see ER and stay with him in 1987 and 1989 does not detract from his credibility or reliability about what occurred.

[340] I am also not troubled by the inconsistencies in ER and CR’s evidence of their physical confrontation in 1989. They both agree where they were and why the fight occurred. I would expect from the passage of time and its impact on memories that both ER and CR would recall details of the fight differently. Those inconsistencies have no bearing on my assessment of either CR’s or ER’s credibility and reliability.

[341] While ER also testified in a straightforward fashion, I was troubled by the answers he gave in his police statement. He testified that he knew for 30 years that CR had been telling his sisters that ER sexually assaulted him. He even told CR to go to the police several times. I do not accept ER’s evidence that CR never confronted him directly about the sexual assaults when they spoke on the phone. GM, KM, and AB all testified how much CR liked to talk on the phone and repeat stories. CR and ER agree that they had a number of telephone calls over the years. While nothing turns on whether CR confronted ER earlier, ER was aware for years before he gave his statement to the police that CR was making these allegations.

[342] During cross-examination, before his police statement was put to him, ER agreed that he wanted to make it clear to the police that he was 100% certain he did not sexually assault CR. Despite this, after being arrested, the first thing ER said to the police when confronted with the charges was “Don’t ring a bell to me buddy, to tell you the truth…I have no recollection of anything ever happening between me and CR.”

[343] It is not until his statement to the police was close to ending that he denied anything occurring. Prior to that, ER’s answers to the police were that he would have blackouts when he drank and that you can never rule anything out when you have blackouts.

[344] ER’s responses to the police are at odds with his evidence that he wanted to make it clear from the outset that he was 100% certain that he did not sexually assault CR. ER had years to prepare for the possibility that the police would contact him about these allegations and therefore years to prepare his response to make it clear from the moment he was asked by the police that the allegations were untrue. Based on his initial answers to the police, he said he did not think it happened. He also agreed that due to his drinking there were chunks of time when he was living with CR that he does not remember.

[345] I am troubled by ER’s equivocal answers to the police considering his insistence that he wanted to make it clear to them that he was 100% certain that he did not sexually assault CR. His admitted abuse of alcohol during the years CR lived with him and his blackouts also leads me to doubt his reliability as a witness. He admitted the impact hard alcohol has had on his memory. This leaves me troubled by the reliability of his denial that he did not sexually assault CR.

[346] If this was only a contest about whose evidence I preferred, I would find CR to be a more credible and reliable witness than ER. He testified in vivid detail of the sexual assaults. When I also consider the mutually reinforcing evidence of both KM and CR, I would reject ER’s evidence not just based on a preference of CR’s evidence, but because it was enhanced by the similar fact circumstantial evidence of KM.

[347] That is not the end of my analysis. W.(D.) requires me to consider the exculpatory evidence of AB. AB testified and denied both that her ER sexually abused her and that she saw him sexually abuse CR. She also denied engaging in any sexual activities with CR.

[348] The Crown’s position is that as CR’s evidence about the sexual abuse he experienced is so interwoven with the sexual abuse involving AB, that if I accept AB’s evidence, or it leaves me with a doubt, I cannot find that any sexual abuse occurred involving CR and ER. If I find AB to be credible and reliable and accept her evidence or, if her evidence leaves me with a doubt, then I cannot convict. I cannot accept CR’s evidence that ER sexually abused him and also accept AB’s evidence, as accepting AB’s evidence, or if it leaves me with a doubt, means that CR was not being truthful about a core issue.

[349] Although I can accept all, part, or none of a witness’s evidence, it is too material a point for me to not accept CR’s evidence about the sexual abuse involving AB still find him credible and reliable in relation to the allegations about ER’s sexual abuse of him.

[350] AB presented as a strong woman who has endured many traumas during her life. She candidly admitted to being abused by two family members and a third person who was like a family member. She spoke of going into counselling briefly in 1993 and then for many years commencing in 1994.

[351] AB was not shaken on her denial that ER sexually assaulted her or her denial that that she engaged in sexual activity with CR.

[352] She testified candidly about her difficult relationship with ER. She was critical of him for his abuse of alcohol and for abandoning her and her brother.

[353] The Crown led reply evidence from GM and a retired police officer, DG, that AB told them both that she forgave her father and had been in counselling. Both testified that when she said this, in the context of what they were discussing at the time, they believed that AB was saying she forgave her father for the sexual abuse. To be clear, neither GM nor DG testified that AB said specifically that she forgave her father for sexually abusing her. They both inferred that is what she meant when she said she forgave ER

[354] AB denies this. Her evidence was that she forgave her father for the years that he abandoned her. The undisputed evidence is that ER played no role in her life until she was 8 years old. Even then ER testified that he worked long hours, was not home often, and drank a lot. AB’s evidence was that she felt drinking was more important to ER than she was. AB rightfully felt abandoned by ER.

[355] GM’s evidence about the conversation she had with AB sometime between 2012 and 2014 was less than convincing. Her evidence was that AB told her that when Aunt E confronted her, she admitted “everything” and forgave her father. GM’s evidence was that she interpreted that forgiveness to be in regard to the sexual abuse.

[356] AB denies this. She testified that Aunt E did not confront her about her father. She denied admitting anything to Aunt E or to GM about ER. Based on GM’s evidence, AB admitted that “all that stuff was true” when she spoke to Aunt E. GM agreed that AB never told her any of the details of the sexual abuse. She only inferred that when AB said she admitted to Aunt E that “all that stuff was true” it was referring to the sexual abuse.

[357] This differs from what GM told the police when she gave her statement. GM only told the police that Aunt E told her what AB said. She did not tell the police that AB told her that ER sexually abused her. This is a critical difference. I do not accept GM’s explanation that she must have forgotten this when she spoke with the police. The detail that AB admitted to being sexually abused to GM versus Aunt E telling GM what AB said is too critical a detail to forget when being questioned by the police about ER sexually abusing CR and AB.

[358] I have no doubt that GM believed at the time that AB was sexually abused by ER as she had been speaking to CR for years about the abuse and she testified that she believed CR. She therefore made the inference or assumption that AB was referring to forgiving her father for the sexual abuse when she told GM she forgave her father.

[359] Officer DG agreed that when he spoke with AB in 2009, he never told her that he wanted to speak to her about sexual activity involving her father. He only said he wanted to speak with her as he was led to believe things also happened to her involving her father. This stems from a complaint made by AB’s cousin M. AB testified that M told her she walked in on ER urinating once. That was AB’s understanding of the issue, not that there was any sexual component to the incident.

[360] The Crown did not call M to testify which is problematic. While DG testified about what M told him, M was not called to testify about what AB told her. AB denied telling M that ER sexually abused her. Like GM, DG testified that he inferred from AB’s comment that she forgave her father and put things behind her, she was referring to ER sexually assaulting her.

[361] While I have no reason to disbelieve DG, it appears he was having a conversation with AB that he thought was about sexual activity without actually saying that to AB. He agreed that he never told her he was talking about sexual activity and appears to have assumed AB knew what it was he was talking about.

[362] By 2009, AB had been in counselling for several years dealing with several traumas including being sexually abused by three other family members at a young age. She heard CR talk to her repeatedly about being sexually abused by ER. She thought she was going crazy as she could not remember it when CR insisted it happened. When she told DG she did not want to participate in any investigation, no doubt she wanted to move on from the repeated allegations she heard from CR over the years.

[363] The Crown says that AB loves her father and wants to protect him and is therefore not being truthful The Crown also says that AB’s coping mechanism is to forgive and move on as she did with the other perpetrators.

[364] I do not accept that AB has a motive to lie. She spent many years in counselling dealing with, among other things, the abuse she suffered at the hands of various family members.

[365] Furthermore, there is no evidence that AB repressed any memories involving her father. Her years in counselling dealing with the sexual abuse she suffered at the hands of other family members flies in the face of repressing or avoiding any such memories. She has taken active steps to deal with the trauma of being sexually assaulted by multiple family members.

[366] AB readily testified about three other perpetrators who assaulted her. She testified that counselling was able to assist her in identifying who assaulted her. She was very clear that her father was not one of those perpetrators. In my view, she testified in a frank and open manner. Furthermore, as she was willing to admit and seek counselling for the sexual abuse committed by three other family members, it stands to reason that she would address and deal with abuse suffered at the hands of her father.

[367] I must also, however, consider CR’s evidence that AB admitted to him that ER assaulted her and KM’s evidence that ER told him what he did to both CR and AB. If I accept that evidence and do not accept AB’s evidence that the assaults did not occur, when I consider AB’s evidence in the context of all of the evidence, I am still left with a doubt with respect to whether ER sexually assaulted CR. With that doubt, I must acquit ER of all counts involving CR.

[368] The similar fact evidence of KM does not increase the power of CR’s evidence towards a conclusion of guilt given my findings of the strength of the exculpatory evidence proffered by AB. When I consider the totality of the evidence, including the similar fact evidence, I am left with a doubt that ER sexually assaulted CR given the exculpatory evidence of AB.

SUMMARY

[369] ER is not guilty of all counts involving CR including indecent assault, gross indecency, sexual intercourse with CR knowing he was his son, and buggery.

[370] ER is guilty of both counts involving KM, including one count of sexual assault and one count of touching a young person for a sexual purpose while in a position of trust.

L. Shaw J.

Released: September 12, 2022

COURT FILE NO.: CR-19-1991-0000

DATE: 2022 09 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and -

E.R.

REASONS FOR JUDGMENT

L. Shaw J.

Released: September 12, 2022