ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
LANCE LOCKWOOD
Rebecca Edward for the Crown
Brian Callender for the Defendant
HEARD: October 3 to 7, 2022
THIS DECISION IS SUBJECT TO A PUBLICATION BAN ORDERED PURSUANT TO SECTION 486.4 OF THE cRIMINAL CODE. any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
VERDICT
Justice Sally Gomery
1Lance Lockwood is charged with two counts of sexual assault under section 246.1 of the Criminal Code, R.S.C. 1970, c. C-34, as amended at the time of the alleged offences. There are two complainants, brothers whom I shall refer to as DM and PM. The alleged assaults took place in Kingston, Ontario, in 1983 or 1984, when the defendant was around 35 years old, DM was 13 or 14 years old, and PM was 7 or 8 years old. The defendant was a friend of DM and PM’s parents and the leader of a youth group at a local church where the complainants’ father was the minister.
2The Crown alleges that the defendant groomed DM over many months. He began by spending time with DM, first within the youth group and then one-on-one in the defendant’s apartment. The defendant allegedly showed DM pornography, then began to touch him, and then gradually escalated the touching to masturbation and fellatio. These sexual assaults took place on nights that DM shared a bed with him at the defendant’s apartment. A final sexual assault would have occurred some weeks or months later, when DM visited the defendant’s new apartment.
3PM testified that the defendant sexually assaulted him when he and DM both stayed over at the defendant’s apartment one night. He said that the defendant entered the bedroom where PM was lying in bed and put his mouth on PM’s penis while masturbating. PM recalled that the assault stopped when DM saw what was happening and forced the defendant out of the bedroom.
4The defendant denies that he ever touched DM or PM in circumstances of a sexual nature. He admits that he befriended DM, because DM had no friends his own age and was unhappy and lonely at home. He also admits that DM regularly spent Saturday nights at his apartment for a period of time, where he would have seen copies of Playboy or similar magazines. He denies that he discussed the images with DM and says they only shared a bed once, on the night that PM also stayed over.
Legal framework
5The defendant is charged with sexual assault under s. 246.1 of the Criminal Code in force in 1983 and 1984. The Crown must prove the same elements on each count that it would under s. 271 of the current Code, that is, that:
i. The defendant intentionally applied force to the complainant;
ii. The complainant did not consent to the force;
iii. The defendant knew that the complainant did not consent; and
iv. The force applied took place in circumstances of a sexual nature.
6The Code now contains much more detailed provisions about consent. I do not need to elaborate on any differences between the law then and now unless and until I reject the defendant’s evidence that no sexual activity took place.
7The defendant is presumed innocent. To obtain convictions on the counts, the Crown must prove, beyond a reasonable doubt, that he sexually assaulted one or both of the complainants.
8This case turns on the testimony of DM and PM, on the one hand, and the evidence of the defendant, on the other. In R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada directed trial judges to engage in a three-step analysis in a case like this:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
9Reasonable doubt is “based on reason and common sense … logically derived from the evidence or absence of evidence”: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 39. The Crown does not need to prove the allegations to an absolute certainty, or beyond any “imaginary or frivolous doubt”: Lifchus, at para. 39. Having said this, the W.(D.) analysis emphasizes the heavy burden on the Crown in a case like this, where the only direct witnesses to the alleged assaults are the complainants and the defendant. My task is not to weigh each complainant’s evidence with the defendant’s evidence and decide who is more likely to be telling the truth. I must decide if, having reviewed all the evidence, including the testimony of the defendant and the complainants, I have reasonable doubt that the defendant is guilty.
10It is accordingly not enough for me to conclude that the complainants’ accounts are plausible, or that they are sincere, or that the sexual assaults that they described may have happened or probably happened. I must be absolutely certain that the sexual assaults happened to find the defendant guilty of the charges. I can only have this level of certainty if I conclude that I do not believe the defendant’s testimony, and I am not left in doubt about the allegations based on the whole of his evidence or on the other evidence presented at trial.
11In the words of Justice Molloy in R. v. Nyznik, 2017 ONSC 4392, at para. 7:
The bottom line is that probable or likely guilt is insufficient. If all I can say is that the [defendant is] likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the [defendant] guilty, I must be sure that they committed the offence charged.”
Factual overview
12Six witnesses testified at trial: DM; PM; their mother, Mrs. M.; PM’s spouse, NW; the detective in charge of the investigation, Detective Lund; and the defendant.
13The complainants’ father, Mr. M, was a minister with the United Church of Canada. In 1983, he obtained a position at Queen Street United Church in Kingston. The M family moved into the rectory beside the church sometime that summer. DM was then 13 years old, and PM was 7. They were not close, due to the age gap between them and differences in their personalities.
14The defendant lived a few doors down from the church, in a third floor walk-up apartment on Queen Street. He was 35 years old in September 1983 and unmarried. He had a full-time or near full-time contract working for the Canadian National Institute for the Blind (“CNIB”), after leaving long-term employment within the penitentiary system. In addition to working for the CNIB, the defendant was involved with the Kingston Kinsmen club in 1983 and 1984, leading in its efforts to raise money to assist victims of famine in Ethiopia. He was also taking some courses at Queen’s University.
15The defendant had begun attending Queen Street United a year or so earlier and was involved in some of the church’s activities. Around the time that the M family moved to Kingston, he began leading the church’s youth group, which DM joined. PM was not a member of the youth group because he was too young. The group met every Sunday after church. Outings and activities were sometimes organized. As a result, the defendant spent time with DM at least once a week.
16In late 1983 or early 1984, Mr. M was treated for major depression. As a result, he was disengaged and spent little time with his sons. DM and PM both recalled that their mother was working full time when their father became ill, but this was contradicted by Mrs. M’s own evidence that she did not have outside employment until mid-1984. I infer, however, that she was occupied with taking care of her husband, the house, and with church activities.
17The M family, by this time, socialized regularly with the defendant and another couple, Mr. and Mrs. O. They would sometimes share Sunday dinner. When Mr. M became ill, these friends stepped in to provide childcare. PM spent time with Mr. and Mrs. O, and DM spent time with the defendant.
18Over the course of several months, DM regularly spent Saturday afternoons and evenings with the defendant and would stay overnight at his Queen Street apartment. This was done with the full approval of DM’s parents, who liked and trusted the defendant. The defendant and DM would go to see movies, watch television, walk the defendant’s dog, and eat together, either at local fast-food restaurants or at the defendant’s apartment. Both DM and the defendant testified that they enjoyed the time they spent together. DM did not have any friends his own age in Kingston and had fun when he was with the defendant.
19The defendant’s apartment had two bedrooms: a larger master bedroom, used by the defendant, and a small second bedroom, which had been occupied by the defendant’s widowed father until his death sometime in 1983. DM alleges that the defendant sexually assaulted him during some of these sleepovers, which the defendant flatly denies. I will return to their conflicting evidence on this issue later.
20The defendant saw PM at church, and when he socialized with his parents or Mr. and Mrs. O. There is no evidence that he ever spent any time alone with PM except on one occasion. One night, both PM and DM slept over at the defendant’s apartment. None of the witnesses recalled how this came about. The defendant speculated that Mr. and Mrs. M had plans that evening and that Mr. and Mrs. O were not available to take care of PM.
21According to PM, the defendant sexually assaulted him the night he spent at his apartment. The defendant denies this. I will again deal with this later in these reasons.
22The defendant’s interactions with DM, and with the M family as a whole, ended abruptly. Based on the testimony of DM and his mother, Mr. M asked the defendant to cease attending the church for some unspecified reason. The defendant denies that he was asked to leave. He says that he left because the United Church of Canada was debating whether gay men should be ordained and marry within the church, and the defendant overheard some fellow parishioners express hostile views towards these ideas. The defendant is homosexual, although he had not disclosed this to anyone at the church. The defendant also admitted that he had mishandled a youth group activity but did not provide any details. He denied that he was asked to leave the church but corroborated DM’s evidence that, at around this time, DM’s parents forbade him from continuing to spend time with the defendant.
23DM testified that, without his parents’ knowledge, he kept in contact with the defendant after he stopped attending Queen Street United. One day, the defendant picked DM up at school and took him to an apartment he had moved into in late 1984. According to DM, the defendant tried to initiate sex with him at the new apartment and DM refused. The defendant denies that anything of a sexual nature occurred during this encounter.
24DM says he saw the defendant for a last time when he was still in high school in Kingston, at a school dance. The defendant does not recall the incident described by DM.
25DM testified that, after the defendant was asked to leave the church, his parents asked him, twice, if the defendant had done anything inappropriate with him. DM denied it. Mrs. M also recalled at least one such discussion. DM said that he did not disclose his sexual activities with the defendant because he was ashamed and did not want his parents to think he was homosexual.
26DM filed a criminal complaint against the defendant in 2019. PM’s complaint followed.
Evidence called by the Crown
DM’s evidence
27DM testified that he got to know the defendant through the youth group at Queen Street United Church. He considered him a friend. He described himself as awkward and shy and not terribly outgoing. He had just moved to Kingston and had no close friends. He had a normal relationship with his parents, but his father did not participate in family life after he got sick. DM recalled that his mother had a job as a secretary in the psychology department at Queen’s University at the time. She was busy cooking, cleaning, working, and taking care of Mr. M.
28DM testified that he began hanging out more with the defendant, since this gave him someone to talk to and allowed him to forget what was going on at home. His mother knew that DM was spending time with the defendant. This included weekly sleepovers at the apartment. On these nights, DM and the defendant would eat dinner at the apartment and watch television or go out to a movie. DM recalled that he sometimes went to all-night cinemas or drive-ins with the defendant and played pool with him at a local pool hall.
29DM described the defendant’s apartment. There was a larger bedroom directly to the right of the entrance way, and another, much smaller, bedroom off the living room. When DM first began to spend nights at the apartment, he slept in the smaller bedroom.
30DM testified that, after he began spending time at the apartment, the defendant gave him pornographic magazines. This was the first time he had seen pictures of naked women and, in his words, “I liked what I was seeing”. He did not tell his mother about this, “as she wouldn’t be very impressed, that’s for sure”. At first, DM looked at the magazines alone, at bedtime. Eventually, however, the defendant and DM began looking at the magazines together and talked about what they were seeing. DM was unsure when this happened, saying that it was “maybe” after a few weekend visits.
31According to DM, at some point he began sharing the defendant’s bed in the master bedroom. He could not recall when this happened. He thought that it may have occurred for the first time when his brother PM also stayed at the apartment overnight.
32DM said that, when he and the defendant both slept in the master bedroom, they would often each look at a magazine. He thought that he would be wearing underwear and perhaps a t-shirt, as that is what he generally wore to bed. DM would lie on his right side, looking away from the defendant. He did not know how the defendant was positioned. They would have talked about the images in the magazines earlier when they were in the living room. They did not talk as they lay in bed. DM testified that he was “probably” on top of the covers but admitted that he was not sure. He said he had a feeling that he would get under the covers only to sleep.
33DM testified that, “Eventually, Lance would move his hand over to me .. and try to touch me” on his side, around his waist. DM said that he pushed the defendant’s hand away because the touching made him uncomfortable. He said that the defendant did not pursue the touching immediately but would do it again during further visits. DM could not recall how many times this happened, saying “maybe” it occurred over three or four weeks.
34When asked why he continued to spend time with the defendant, DM testified that he was his friend, they had lots of fun together, and he did not want his mother to know about the porn magazines. According to him, the defendant told him that he was really mature for his age, and more apt to hang out with adults.
35DM said that the defendant eventually succeeded in touching his penis, over his clothing. The defendant would rub him until DM got an erection. The defendant would then move his hand under DM’s underwear and masturbate him. DM said that this probably occurred around his 14th birthday, in late June 1984.
36DM testified that, the first time this happened, he was shocked and scared, and just froze. He was scared that someone would find out, or that the defendant would tell someone about the touching, and they would think that DM was gay. DM did not think of pushing the defendant away. He said that the defendant “would finish with me, then do it to himself”.
37DM said that this happened again, “probably the next week”. He could not say how often it happened. It would have continued “maybe” four or five months, every night he spent at the defendant’s apartment.
38DM testified that, at some point, the defendant began putting his mouth on DM’s penis, fellating him until he ejaculated. The defendant asked DM to reciprocate, but DM refused. When the defendant persisted “maybe four or five times”, DM eventually used his hand to masturbate the defendant. He said that the mutual masturbation “probably” took place four or five times. DM found it embarrassing and shameful, and he was again worried that someone would think he was gay. He nevertheless continued to spend nights with the defendant, because he did not want their friendship to end, and he did not want other people, in particular his parents, to find out what was going on.
39The weekend visits ended when the defendant stopped attending Queen Street United Church. DM testified that he was told by his father and one of the parish elders that the defendant was asked to leave. He was not sure when this happened but said that October or November 1984 “sounds reasonable”. DM said he was shocked and upset when he found out, and he defended the defendant. He was angry that their relationship was going to change dramatically.
40The sleepovers stopped immediately. DM and the defendant would still get together, just not at the apartment. They would get food together. DM’s parents were not aware of this.
41These encounters ended when the defendant tried to renew sexual activities with DM. According to DM, the defendant picked him up at school to take him to lunch, but instead took him to his new apartment in another part of Kingston. While DM was sitting on a chair, the defendant tried to unbutton his pants. DM pushed him away, but the defendant continued to try to undress him. DM pushed him away again and told the defendant to take him back to school. The defendant did so.
42DM testified that he was angry that the defendant had tried to touch him. He wanted to continue their friendship but did not want anything sexual.
43DM did not ever meet up with the defendant again. He saw him one final time outside a high school dance. DM was leaving and the defendant was entering with a couple of boys. DM yelled at him, saying: “What are you doing here? Are you going to do something to that kid?” Then he walked away. DM stated that he had realized by that time that the defendant had used him and that they were not really friends.
44DM did not tell anyone about the alleged sexual assaults at the time. When his parents asked whether anything had happened between him and the defendant, DM said no. He testified that he was scared that someone would find out.
45After graduating high school, DM got his pilot’s licence and moved away from Kingston, first to the Maritimes and then later to Calgary. In 1998, he had been laid off from his job in Halifax and was facing possible eviction. He testified that he was in a pretty bad emotional state and what had happened with the defendant “came bubbling up to the surface”. He called his parents and told them that he had been molested by the defendant. DM testified that he did not give his parents any details about what had happened or how often it happened. He told them that they could tell his brother about it but not anyone else. He did not contact PM directly since they were not close.
46In his examination in chief, DM did not mention any direct discussions about the alleged sexual assaults with PM, or anyone else aside from his parents, prior to 2019. In cross-examination, he acknowledged that PM mentioned to him in 2009 that he had discovered that the defendant was living in Nova Scotia. As PM would later testify, he had learned about DM’s sexual assault allegation from his parents years earlier, and had tracked the defendant down. DM denied that he and PM had any detailed discussion in 2009 about DM’s experiences with the defendant. DM also denied that PM told him that the defendant had also sexually assaulted him.
47In April 2019, DM gave a statement to Calgary police about an unrelated matter. DM called the detective assigned to the case a few weeks later and told her about the defendant’s sexual activities with him in Kingston decades earlier. DM testified that he needed some accountability, he wanted to get some closure, and to do the right thing. He gave a statement to the Calgary police about this matter on April 17, 2019. The detective to whom he gave the statement told him that she would pass the information on to the Kingston police, who would be in touch with him.
48A few weeks after making the statement, DM contacted his parents and PM to tell them that they might be contacted by the Kingston police. A little while later, DM’s mother told him that PM recalled that he also was molested by the defendant. DM testified that he was very surprised to hear this and called PM to ask him what had happened. PM then told him what had happened when he slept over at the defendant’s apartment, in detail. DM testified that he did not initially remember any incident and that, when PM first mentioned it, “it surprised the heck” out of him. When PM reminded him about what had happened that night, however, DM “could picture the whole thing in my head”.
49At trial, DM testified that both boys slept over at the defendant’s apartment one night. This was the only time that PM slept at the apartment. DM thought that this happened before he himself was sexually assaulted by the defendant for the first time, because these assaults took place in the master bedroom, and DM had always slept in the smaller bedroom up until that night.
50At trial, DM recalled that, when he left the bathroom after brushing his teeth, he saw that the door to the smaller bedroom was shut. He opened it up. PM was lying in the bed, under the covers. The defendant was leaning over top of the bed and reaching over top of PM’s torso. DM could not see the defendant’s hands. DM loudly told the defendant to get off PM and pulled him away by his shoulder. According to DM, he did this because “something didn’t seem right”. The defendant then left the room. DM made sure that PM was okay, and then left the room and went to sleep with the defendant in his bed. DM recalled that, when he and PM were walking back home the next day, he told PM not to tell their parents about what had occurred, because he did not want the defendant to get into any trouble.
51In cross-examination, DM admitted that he did not see the defendant touching PM, or see PM’s penis, or see the defendant touching his own penis. He said that the defendant remained by the side of the bed for only perhaps five seconds. At the preliminary inquiry, he had said that “it was over in about two seconds” after he walked into the room. He acknowledged that he did not witness the defendant sexually assaulting PM. He said he does not know if PM was sexually assaulted, because PM has never told him what happened.
52According to DM, his phone conversation in 2019 with PM about the defendant’s alleged assault of PM lasted about ten minutes or so. He testified that he merely confirmed his memory that something had happened, but also acknowledged that he and PM talked about it.
PM’s evidence
53I will focus on PM’s evidence about the defendant’s alleged assault as opposed to events that are not in dispute.
54PM recalled that he and DM both spent the night at the defendant’s apartment. He thought that he was about 7 years old but admitted that he might have been older. He did not recall why he was there rather than with Mr. and Mrs. O, at whose house he often spent the night.
55PM remembered watching a movie in the defendant’s living room. The defendant told him it was time to get ready for bed. DM was allowed to stay up later because he was older. PM changed into his pyjamas, which included pants with an elastic waist, then went to the small bedroom, and lay down on the bed. He may have been reading a book.
56According to PM, the defendant came into the bedroom, stood over him and said: “We’re going to play a game”. PM testified that: “I guess I said, okay”. He does not recall the game but stated that “I assume I lost”, because he had to pull his pyjama pants down to his knees. PM could not recall if he did this or if the defendant did. PM testified that the defendant then put his mouth on his penis. He described the feeling of his whiskers and his tongue. He recalled that the defendant then took his own penis out and began to masturbate. PM recalled being frozen, afraid, panicked, and confused.
57The assault ended, maybe a few minutes later, when DM came in the room. DM pulled the defendant off of PM and said: “Leave my brother alone”. DM then grabbed the defendant’s arm or otherwise gestured for him to leave the bedroom.
58PM testified that he stayed in the bedroom the rest of the night. He does not remember breakfast the next day. He does remember the walk home, during which DM told him not to tell anyone what had happened, because they would get into a lot of trouble. They did not speak further about the incident.
59PM did not tell anyone about the incident for many years, or even think about it. He had trouble with relationships with women, became depressed, and was prescribed medication. He feels, but is unsure, whether these problems were attributable to the alleged assault.
60In 1997 or 1998, PM was told by his parents that the defendant had “gotten to” DM. PM did not speak to DM directly about this. Although he had no further details, PM understood from this that the defendant had sexually abused or molested his brother. This prompted PM to research the defendant’s whereabouts online. He discovered the defendant’s email address and contacted him to confirm his identity. He testified that he was angry that the defendant had sexually abused his brother. PM said he had no recollection, at this point, that the defendant had also sexually assaulted him.
61A year or two later, according to PM, he regained his memory of what had happened during the sleepover and disclosed it to his girlfriend at the time. He stated that he “didn’t have access” to the memory earlier. He does not know what triggered it. He did not immediately disclose it to DM or his parents.
62Sometime between 2007 and 2010, PM told his wife that the defendant had sexually assaulted him. He thought he should share the incident with her and unburden himself. He testified that, after they married, he was drinking a lot, alone, in the basement, and watching disturbing movies. He was furious with the defendant, so he looked him up online. He discovered that he was living in Nova Scotia. He thinks he may have emailed the pastor of the local church to warn him about the defendant.
63PM gave a statement to the Kingston police on June 24, 2019. He testified that DM had called to warn him that he would probably be contacted by police, in part to find out if the defendant had also “gotten to” him. PM recalled that this call took place while he was at a dance class with his kids. DM asked if the defendant had “gotten to him” and PM said yes. That was the end of the conversation. According to PM, they probably spoke further at some point. He recalled telling DM about the sleepover, which DM did not remember. PM did not give him any details beyond the fact that DM had stopped the defendant from abusing him any further.
64Around the time of the preliminary inquiry in 2021, PM began focussing more and more on the alleged sexual assault. He began making mistakes at work and consulted a physician. He was diagnosed with post traumatic stress disorder and acute social anxiety. At the time of the trial, he had been on disability leave for a year.
65In cross-examination, PM recalled that, when they were living in Kingston, he found a “hard core” sex magazine in DM’s closet. DM told him that that the defendant had given it to him. PM did not say whether this happened during the period that DM was regularly spending time with the defendant or at some later date.
Mrs. M’s evidence
66Mrs. M recalled meeting the defendant when the family moved to Kingston in 2013. She described the defendant as welcoming, friendly, and funny. He was involved in the youth group and other church activities, but she did not recall which ones. She and her husband liked the defendant and enjoyed his company. He came over for meals and she vaguely remembered going to his apartment for a barbeque. According to Mrs. M, the defendant told them that his father was living with him, that he had a girlfriend named Jane, and that he was studying law at Queen’s University.
67Mrs. M remembered that the defendant hung out with DM “a bit” and that she thought that DM sometimes spent the night at the defendant’s apartment. She did not know when or why this happened. She denied that sleepovers were a regular thing. Mrs. M had only a vague recollection of the interactions between DM and the defendant. She did not recall the youth group’s activities. She thought that DM and the defendant “maybe” went to the movies but admitted that she did not really know.
68Mrs. M confirmed that her husband struggled with depression and anxiety, for which he took medication. She did not recall whether DM began spending more time with the defendant due to his father’s health conditions. She testified that she herself did not begin working outside of the home until the summer of 1984, when she got a job for a year at the Children’s Aid Society. In contrast to her vague observations about the defendant and DM, she gave a detailed account of her employment history.
69Mrs. M recalled that the defendant left the church but not when. She thought he was asked to leave, based on what her husband told her. According to Mrs. M, DM’s relationship with the defendant was “sort of falling apart” at this point, in any event. Mrs. M asked DM if the defendant had engaged in any sexual misconduct with him, and he denied it. She did not explain what prompted her to ask this question.
70In the late 1990s, DM phoned Mrs. M and told her that the defendant had sexually abused him. She did not ask him for any details. She told her husband. Asked if she told anyone else, she at first denied that she did and then said she might have told PM.
71According to Mrs. M, she found out about the defendant’s alleged sexual assault of PM from PM’s wife. This would have been “maybe” twelve years later. The allegation surprised her.
72Mrs. M’s testimony was not very helpful. She had no direct insight into the sexual assault allegations by the two complainants. The only topic on which Mrs. M appeared to have an absolutely clear memory was her work history. She admitted that she did not otherwise remember very much about what happened almost forty years ago, which is understandable.
NW’s evidence
73NW is PM’s wife. She testified about the timing of PM’s disclosure to her of his allegation of sexual assault. In 2008, she was curious about why PM took medications to sleep and other medications. PM told her that he had a bad memory from childhood but nothing further. In 2009, after they got engaged, PM told her that he had been sexually assaulted by a man named Lance who had been affiliated with the church, and who had helped babysit DM and PM. NW was alarmed by this disclosure and did not share it with anyone at the time. She told Mrs. M that PM was going through very hard times in March 2016, after finding more than fifty liquor bottles in the basement. She spoke to her about PM’s disclosure of sexual assault in 2019.
74In cross-examination, NW acknowledged that her knowledge of this case is confined to what PM has told her. She also admitted that she does not know why PM is depressed, as she is not a doctor.
75I found NW generally credible, but her evidence again added little to my understanding of what occurred between the complainants and the defendant. She was somewhat evasive about her understanding of this case and the extent of her discussions with PM about it. I do however believe that she did not speak to anyone about PM’s allegations except for her mother-in-law. She clearly regards the alleged sexual assault as an intensely private matter.
Detective Darren Lund’s evidence
76Detective Lund is the officer who led the Kingston police’s investigation in this case. He was called to testify about photographs he took, and a sketch he prepared, of the Queen Street apartment where the defendant lived in 1983-84.
77Although the apartment has been renovated over the last three decades, Detective Lund’s evidence allowed the defendant to more clearly explain the layout of the apartment when he lived there. This was not a critical issue as there were only minor differences between the descriptions of the two bedrooms provided by DM and the defendant, and it was already apparent, based on their evidence, that PM did not accurately recall the location of the smaller bedroom.
Evidence called by the defence
78The only witness called by the defence was the defendant.
79The defendant recalled that he invited DM to join the youth group he started in late 1983. The group generally met after church. It may have also done activities with other youth groups and gone on one or more overnight trips outside Kingston. In cross-examination, the defendant agreed that he was in a position of trust in the church as the youth group leader, and that he was responsible for the general health and safety of members of the group.
80DM began spending time with the defendant outside of the group because, not too long after the M family arrived in Kingston, Mr. M became ill. Although Mrs. M was doing her best, members of the church stepped in to assist with childcare. Mr. and Mrs. O loved PM, so he spent time at their house. This included overnight visits. The defendant did not know PM very well. He saw him at church and the occasional dinner. He recalled that PM was “a character”.
81The defendant described DM as shy and reserved, and as a “lost soul”. He told the defendant that he was always being taken away from friendships when the family moved. He was bored and lonely at home and a little estranged from his family. He did not get along with his brother and did not have friends in Kingston. He seemed more comfortable talking with the defendant. He also liked the defendant’s dog, Jasper. The defendant was happy that DM was available to walk Jasper when the defendant was away or late getting home.
82The defendant did not recall telling DM that he was too mature for his peers and was better off spending time with adults. He did not think that this was something he would have said. He might have tried to reassure DM by telling him that it was okay if he did not have friends his own age.
83The defendant agreed that DM spent time at his Queen Street apartment, which was only a block away from the church and the rectory. The defendant did not recall telling his parents that DM was welcome any time but was sure that he would have done so. DM would sometimes sleep over at the apartment on Saturday night and they would walk to church together on Sunday, after DM had walked the dog. In cross-examination, the defendant agreed that this became routine at some point.
84The defendant and DM would eat together at the apartment or go to a fast-food place. They sometimes went to movies at a nearby theatre. The defendant doubted that they went to drive-ins or all-night movie theatres, or that they played pool together.
85The defendant testified that, on these overnight visits, DM slept in the smaller bedroom that was used by his father before his death. This room was located under the eaves and was very modest. It contained a single rollaway cot. There was a small closet at the end of the room by the door. There were some boxes behind the door that contained books and his father’s other belongings.
86According to the defendant, DM slept in the bed in the master bedroom with him only once. This was the night that PM also slept over and used the smaller bedroom. The defendant denied that he ever touched DM’s penis with his hands or his mouth. According to him, “it never happened”. He also denied that DM ever touched his penis.
87The defendant did not recall where they ate the evening that PM stayed over. He said he had no reason to doubt PM’s evidence that they watched a movie on television after they ate. He recalled sending PM to bed. After PM was in bed, the defendant went into the bedroom to wish PM good night. He did not recall if he leaned over the bed. He thought that PM might have had a book.
88The defendant denied that he played any game with PM. He denied that PM’s pyjama pants were pulled down or that he touched PM’s penis. He denied that he masturbated in front of him.
89The defendant admitted that he had copies of magazines such as Playboy, Penthouse, Playgirl, and Hustler in the apartment. They were not in the boxes in the small bedroom but stored under the defendant’s bed in the master bedroom. The defendant denied that he ever gave DM magazines to take home.
90The defendant stated that he has no sexual or romantic interest in women, because he knew from a very early age that he is gay. He sometimes invited a female friend, Jane, to accompany him to events. He admitted that he may have given others, and even Jane herself, the impression that she was his girlfriend, to deflect their attention from any suggestion that he was gay. In cross-examination, he admitted that he tried to get everyone to believe that he was heterosexual.
91The defendant bought porn magazines to see the naked men in them, and to read the articles. He would leave Penthouse or Playboy out in the apartment when he was expecting family members or his friends, so that they would not realize he was gay. The defendant denied that he bought these particular magazines for the express purpose of deceiving people.
92According to the defendant, DM found one of the magazines, either because he had left it lying around or because DM found it in a box under the bed in the master bedroom. He denied that he left the magazines lying around the apartment all the time, or that he left magazines out so that DM could find them and ask him about sex. He denied telling DM that the magazines had belonged to his deceased father. He also denied ever buying a magazine when DM was with him, because DM was, in his words, a kid.
93When DM found one or more magazines, the defendant did not make a big deal about it. He remembered being his age. He told DM to feel free to look at the magazines. He did not see the harm in this. He denied that he and DM spoke about the magazines. He did not recall which ones DM looked at, or whether he took any of them home.
94The defendant testified that he was not concerned that DM would tell his parents about the magazines, or that he told DM to keep them a secret. It never occurred to him. If that had happened, he thought that he and Mr. M. could have “talked it out”. He agreed, however, that it would have been disastrous if other parishioners had found out about them. If DM had asked if he could take magazines home, the defendant would have said no. He would not have wanted DM’s parents or PM to find them.
95The defendant moved from the Queen Street apartment to an apartment on Bath Road some time in 1984. In his examination in chief, he stated that the move had something to do with the church. He was not getting along with its administration over a project. As well, congregations in the United Church were debating whether they would welcome gay ministers or bless same sex marriages. The defendant realized that his fellow Queen Street United parishioners had bigoted views and would not welcome anyone who was openly gay, and so he decided to leave. He had no recollection of being kicked out.
96In cross-examination on this issue, the defendant testified that his friendship with DM came to an end around the time of a youth conference that did not go well. He said that the church was not happy with how he had handled it. He denied that there was any issue of financial impropriety and insisted that the impetus for his departure was the debate over gay rights within the congregation.
97The defendant recalled that DM’s parents were adamant that their friendship must end. He was unsure about what prompted this, as he had not heard anything specific. He repeated that he would remember if he had been asked to leave the church. He eventually began attending another church. He came out of the closet in 1988, after he had moved to Toronto.
98The defendant stated that he met with DM one last time after he moved. He did not recall who suggested the meeting. In his examination in chief, the defendant said that he wanted to apologize to DM for Mr. and Mrs. M’s decision that they should no longer see each other. In cross-examination, he said that DM told him that his parents had forbidden him from seeing him anymore, and the defendant said that he was sorry that their friendship was ending.
99The defendant denied that he tried to touch DM sexually during this meeting. He did not recall meeting DM again at a high school dance, or DM yelling at him.
100The defendant left Kingston in late 1985 or early 1986. He did not recall any attempt by PM to contact him years later, when he was living in Nova Scotia.
Has the Crown proved that Lockwood sexually assaulted DM?
101Crown counsel argues that this is a classic case of grooming, The defendant targeted DM as a young, and lonely adolescent with no friends his own age. He took advantage of his access to DM through the youth group and through his social relationship with his parents. Under the pretext of befriending DM and assisting his parents, the defendant introduced the idea of sex to DM through porn magazines, overcame his initial resistance to touching through persistence and subtle coercion, then escalated this touching to masturbation. Crown counsel contends that I should accept DM’s allegations of sexual assault because they are inherently plausible, he had no motive to invent them, and he was a credible witness.
102I agree that DM has no apparent motive to invent his allegations. The accused does not, however, have to prove that a witness or complainant has a motive to lie. People may accuse others of committing a crime for unknown reasons or for no reason at all. It therefore does not necessarily follow that because there is no apparent motive to lie, a witness must be telling the truth: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23.
103The defendant had the opportunity to sexually assault DM. The defendant does not deny this. This does not, however, relieve me from the obligation of asking the hard questions set out in W.(D.). The presumption of innocence requires them in a case, such as this one, that turns entirely on credibility issues. The defendant and DM were the only witnesses to what occurred between them. PM did not testify to any sexual activity between them on the night he stayed over at the apartment. DM’s mother, Mrs. M, had only a vague recollection of what was happening in 1983 and 1984.
104In the first two stages of a W.(D.) analysis, I must determine if I believe the defendant’s denial that he engaged in any sexual activity with DM, or if the defendant’s evidence as a whole gives rise to reasonable doubt.
105I conclude that the defendant’s evidence alone gives rise to reasonable doubt.
106The defendant was a credible witness, on the whole. He made many admissions against his own interest. In particular, he admitted that DM spent many nights at his apartment; that, after DM found porn magazines at the apartment, he did not prevent him from reading them; and that he and DM shared the master bed on the night that PM slept over. The defendant gave detailed answers to the questions put to him. He was not defensive or evasive except in one area I will mention later. He admitted when he could not remember certain details. He got upset when cross-examined on some issues, such as whether DM took any pornographic magazines home with him. His reactions struck me as genuine, and I did not find his testimony less believable because of them.
107During her cross-examination, Crown counsel repeatedly confronted the defendant about steps he took in 1983 and 1984 to actively mislead his family and friends, including Mr. and Mrs. M., about his sexual orientation. The defendant freely admitted that he was not forthright and even sometimes deceptive in this respect. He did not come out for another few years. This does not, in my view, make the defendant generally less worthy of belief. The defendant explained the reasons for his actions and expressed regret that he felt he had to mislead others about his orientation. I accept the defendant’s explanation. In 1984, sexual orientation was not protected under the Ontario Human Rights Code or s. 15 of the Canadian Charter of Rights and Freedoms. Crown counsel did not challenge the defendant’s evidence that other members of Queen Street United Church expressed homophobic views in 1984, nor is this implausible.
108The defendant was not a perfect witness. I am skeptical of his denial that he was asked to cease attending the Queen Street United Church. I found him cagey about this. He admitted that Mr. and Mrs. M were adamant that he was not to spend any further time with their son. This about-face on their part implies a sudden loss of trust. DM testified that his parents asked him if the defendant had behaved inappropriately with him. This hints at some scandal. I think Mr. M. likely had a conversation with the defendant that prompted him to not only leave the Church, but to move to another apartment across town.
109My concern about this part of the defendant’s evidence does not, however, go to any central issue, nor does it lead me to believe that the defendant is generally unworthy of belief. As a result, the defendant’s evidence gives rise to reasonable doubt.
110It is important to add that, even if the defendant’s evidence had not given rise to reasonable doubt, I would have acquitted him of the charge of sexual assault of DM on the third stage of the W.(D.) analysis.
111I am not concerned that DM has no precise memory of when the alleged sexual assaults started or ended, or how often they occurred. Although DM’s credibility must be evaluated as that of an adult witness, he was testifying about events he recalled from his childhood. In these circumstances, allowance should be made for a child’s perception of events, and I can discount some peripheral inconsistencies or lack of detail: R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 134. Whether or not the alleged assaults took place before or after DM’s 14th birthday has no significant impact. If I found his account of them credible, given the defendant’s position of authority, the power imbalance, and the age gap between them, I would have concluded that DM could not consent freely to any sexual activity with the defendant.
112I am also not concerned that DM denied any sexual activity with the defendant when he was asked about this by his parents at the time, and that he did not disclose the alleged sexual assault for many years after that. He explained why he did not want to tell his parents or anyone else immediately. Courts now recognize that different victims of sexual assault may react in different ways. DM’s failure to tell anyone about the alleged sexual assault until 1998 does not, by itself, make the allegation inherently less credible.
113I do however have serious concerns about the reliability of DM’s evidence on the whole, based on the qualified way he testified and on inconsistencies in his testimony.
114For example, DM’s testimony about the pornographic magazines was inconsistent.
115First, during his evidence in chief, DM testified that the defendant would sometimes buy pornographic magazines and leave them on DM’s bed. DM added that he was “probably present sometimes” when the defendant made these purchases and that he generally just looked at the ones that were “probably purchased”. Based on the way DM qualified these statements, even without any cross-examination on this point, I would have doubted that DM had any actual recollection of purchasing porn magazines with the defendant. In cross-examination, however, DM admitted that he was not sure that he was present when the defendant purchased them. He also admitted that he had never, prior to the trial, mentioned purchasing magazines with the defendant to the police or the Crown, or during his testimony at the preliminary inquiry.
116Second, in his examination in chief, DM said that he looked at magazines that the defendant had purchased and left for him and that he did not know what the boxes in the small bedroom contained. In cross-examination, DM was confronted with prior statements in which he said that he discovered porn magazines under the bed in the small bedroom. DM then said that the defendant told him where to find them, that there were boxes and boxes of them in the small bedroom, and they were also stacked on the floor at the end of the bed.
117Another area of inconsistency was DM’s account of his discussions with PM about the defendant. As already mentioned, DM initially denied any conversation with PM about the defendant prior to 2019. In cross-examination, however, he eventually admitted that he and PM spoke about the defendant in 2009. He admitted that PM told him that he had found the defendant on social media and had contacted him. He admitted that PM knew, at this point, that the defendant had touched DM, and that he had done something “almost criminal”.
118DM’s account of his 2021 discussions with his brother was furthermore contradicted by PM. According to DM, when he called PM to warn him that he might be contacted by the Kingston police, there was no discussion about any possible allegations by PM. When DM learned a week or two later that PM was alleging that the defendant had also sexually assaulted him, it “surprised the heck” out of him, and he wondered if his sister-in-law NW had misinterpreted something that PM had told her, because English is not her first language. It was only during a subsequent phone call that PM told DM, for the first time, that he had been assaulted.
119According to PM, DM told him, during their first phone call, that the Kingston police would be calling him, in part to find out if the defendant “had also gotten to me”. DM then asked PM if the defendant had also “gotten to” to him and PM said yes. According to PM, they probably spoke further, because he recalled telling DM about the sleepover, and that DM had stopped the defendant from abusing him further.
120Finally, DM’s testimony about what happened when PM slept at the defendant’s apartment is problematic, for several reasons.
121First, DM admitted that, when he first learned of PM’s allegations in August 2019, he had no memory of any incident and was in state of disbelief about it. He recalled the incident only after PM told him about it. In cross-examination at the preliminary inquiry, PM agreed that he was “helping” DM with the memory. The Crown did not present any evidence that such a recovered memory could be genuine or reliable.
122Second, after recovering his memory, DM did not share it with the Kingston police or the Crown for almost two years. Despite having multiple conversations with Detective Lund after giving his 2019 statement, DM only told him about his recovered memory of the incident involving PM in 2021, on the eve of the preliminary inquiry. He offered no credible explanation for this.
123Third, DM’s account of the incident does not make much sense. He testified that the incident likely occurred before the defendant sexually assaulted him for the first time. He did not actually see the defendant touching PM or doing anything else that would have reasonably alarmed him. Despite this, he recalled shouting at the defendant to leave his brother alone and pulling him away, and then telling PM the next day not to tell their parents what had happened, because he did not want to get the defendant into trouble. Interestingly, although PM denied providing DM with details of what the defendant had done to him, he admitted that he told DM that DM had shouted at the defendant and pulled him out of the room.
124All of this leaves me in considerable doubt that I can rely on DM’s evidence about PM’s alleged assault. To be clear, I do not think that DM deliberately fabricated his account or that the complainants plotted to coordinate their evidence about the defendant’s alleged assault of PM. Had they done so, the stories would have matched up, and they do not. But DM’s account strikes me as a reconstructed memory as opposed to a genuine one.
125Serious inconsistencies in a complainant’s evidence may give rise to reasonable doubt. As the Ontario Court of Appeal stated in R. v. G.(M.), 1994 8733 (ON CA), 1994 CarswellOnt 181, at para. 23:
Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and to be expected. They do not generally affect the credibility of the witness. … But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth.
126A single minor inconsistency will not diminish a witness’ credibility, but a series of inconsistencies may do so. The trier of fact “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), at para. 29.
127Crown counsel argues that, even if I reject DM’s evidence about the defendant’s alleged assault of PM, this does not necessarily undermine the credibility of his evidence with respect to his sexual activities with the defendant. A trier of fact may reject a witness’ testimony on one issue but accept it on another.
128In this particular case, the inconsistencies I have mentioned in DM’s evidence undermine his overall reliability. They do not bear on trivial issues but on issues that go to the heart of the Crown’s case, that is, the defendant’s alleged grooming of DM by deliberately exposing him to pornography, and the extent to which he and PM may have discussed their allegations prior to the trial. I am also troubled by DM’s conviction that he witnessed the defendant sexually assaulting his brother. I have concluded that his account of this incident is implausible, and yet DM appeared sincere and genuine when he testified about it.
129For all these reasons, I conclude that the Crown’s case on the defendant’s sexual assault of DM has failed.
Has the Crown proved that the defendant sexually assaulted PM?
130The Crown contends that the defendant seized on an opportunity to sexually assault PM when he slept at his apartment. The prosecutor urges me to find PM’s account both credible and plausible. She suggests that the defendant’s evidence of denial of any direct contact with PM is suspect because the defendant admitted that he sometimes ate with the complainants’ family, and because he was able to recall PM’s personality and appearance as a child.
131For the reasons already set out, I found the defendant generally credible. I do not find it at all odd that the defendant would have an overall impression of PM, despite a lack of direct interaction with him, based on his contact with him through the church and socializing with the M family. The defendant’s account of what occurred the night that PM slept over is plausible. I would therefore find reasonable doubt on stage one or two of the W.(D.) analysis.
132I would again also find reasonable doubt based on the evidence as a whole.
133I am not concerned by PM’s inability to pinpoint the year that the assault took place, or by his inaccurate recollection of the layout of the defendant’s apartment or location and configuration of the small bedroom. These lapses are understandable given PM’s age at the time and the little time he spent at the apartment. I am also not concerned that PM did not report an alleged assault right away, for the same reason I am not concerned about DM’s delay in disclosing. It is entirely possible that a victim of sexual assault, especially a child, would remember an assault but say nothing about it for years or even decades, for all kinds of legitimate reasons.
134I am, however, skeptical that PM would have completely forgotten that he was sexually assaulted for fifteen years, and then suddenly recall it a year or two after he learned of his brother’s allegations. Again, the Crown did not present any evidence that such a recovered memory could be genuine or reliable. According to PM, he had problems with romantic relationships and sleeplessness before he recovered the memory, and these issues may have been linked to the trauma of the alleged sexual assault. There was no expert evidence that would support this.
135I am also faced with the incompatibility of PM’s account of the alleged sexual assault and DM’s testimony. PM admitted, in cross-examination, that a person who walked into the bedroom would have immediately seen the defendant assaulting him. DM did not see the defendant fellating his brother or touching him in any way. He likewise did not recall seeing PM’s pants pulled down. He recalled that PM was under the covers.
136Even if I set aside DM’s evidence as a reconstruction, I found PM’s testimony to be somewhat rehearsed. For reasons I have already reviewed, I am left in doubt about how much the complainants discussed their allegations prior to trial. PM did not explain why he would not have disclosed his alleged assault to DM in 2009, when he spoke to him about the defendant. He also denied that they spoke about DM’s allegations prior to DM’s complaint to police. PM’s 2019 police statement, however, implied that they had a conversation that prompted his recovered memory. When asked by Detective Lund when he remembered the assault, he said: “Like I say, I was in my 20s … and I was thinking about [DM]’s telling me about this and then like oh shit there was that time”. In cross-examination, PM suggested that, when he said he was “thinking about DM telling me”, he was actually referring to his parents’ passing on to him what DM had told them in 1998. Crown counsel points out that PM was not under oath at the interview and may have simply been careless in expressing himself. Although this is possible, PM’s statement during the interview heightens my concern about the reliability of his evidence.
137For all these reasons, I conclude that the Crown’s case on the defendant’s sexual assault of PM has failed.
Disposition
138As I said at the outset, I cannot find a person guilty unless I am sure that they have committed the crimes with which they have been charged. The Crown has not established its case beyond a reasonable doubt.
139Mr. Lockwood, I find you not guilty of the charges. You are free to go.
Justice Sally Gomery
Released: December 16, 2022
COURT FILE NO.: CR-21-34
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
LANCE LOCKWOOD
VERDICT
Justice Sally Gomery
Released:December 16, 2022