COURT FILE NO.: CRIM J(P) 1167/18

DATE: 20230829

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Sierra Skoropada, for the Crown

• and -

M W

Jamie Kopman, for the Accused

HEARD: January 30, 31, February 1, 6, 7, 8, 9, 10, 13, 14, 15, 16, 22, March 15, April 5, 24, 2023 (by Zoom videoconference)

PUBLICATION BAN

The Reasons for Judgment are subject to an order, under section 486.4(1) of the Criminal Code, prohibiting any information that could identify the complainants in this case from being published in any document, broadcast, or transmitted in any way. This version has been modified to comply with that order and is not subject to it.

REASONS FOR JUDGMENT

STRIBOPOULOS J.:

INTRODUCTION

[1] The accused, Mr. W, was tried before me on six historical charges. The charges involve two complainants— I A and V E — a count for each complainant charging the offences of sexual interference, sexual exploitation, and sexual assault.

[2] Ms. A and Ms. E are first cousins. At the time of the alleged offences when they were both teenagers, Ms. A lived with Ms. E's family in Mississauga for several years after arriving in Canada from Cameroon in 2008. The immediate family consisted of Ms. E's parents, W and F E, and Ms. E's older and younger brothers. Ms. A is a cousin on W E's side of the family.

[3] After immigrating to Canada, it was common for relatives to stay with the E family at their home in Mississauga until they became settled. In the summer of 2009, Mr. W, along with his siblings, arrived in Canada from Cameroon. Mr. W is a cousin on F's side of the family, and is three years older than Ms. A and four years older than Ms. E. Mr. W, then aged 17, his siblings and their mother stayed at the E residence before eventually moving into their own home. However, Mr. W returned to live at the E residence a few months before or around his 18th birthday, where he stayed for several years. While residing at the E residence, Mr. W occupied a bedroom in the basement.

[4] The E family is Catholic and very religious. According to the complainants and other family members, while he lived at the E residence, Mr. W assumed a leadership role in the household. This included over matters of religion and spirituality, as everyone in the home considered Mr. W to be especially religious and spiritual. This was largely because he had fully recovered from an unexplained childhood illness that had left him unable to walk and in a wheelchair while in Cameroon. The family came to believe that this recovery happened, at least in part, because of the power of prayer.

[5] Ms. A and Ms. E each allege that over several years, beginning in their early teens, Mr. W conducted private “prayer” sessions that mainly took place in his downstairs bedroom at the E residence. By exploiting the religious authority he had over them and under the guise of providing them with spiritual benefits, they each claim that Mr. W subjected them to repeated acts of sexual abuse.

[6] Mr. W denies the allegations levelled against him by the complainants. During his testimony, he maintained that he was not the spiritual head of the household but that Ms. E's mother, F, was. Although he acknowledged holding private prayer sessions with Ms. E in his bedroom, he maintained that he only did so at F's insistence. Additionally, he denied ever praying alone with Ms. A. Finally, Mr. W steadfastly denied that he ever had physical contact of a sexual nature with either complainant.

[7] Instead, Mr. W testified that F, because she disapproved of who he chose to marry and his decision to move out of the E home, threatened retribution against him for defying her wishes. According to Mr. W, he is innocent of the charges. He contends that the complainants' allegations result from an effort to carry through on F's ominous threat.

[8] Credibility is the critical issue in this case. The Crown applied to have the complainants' testimony admitted as similar fact evidence between the counts relating to each because it claims the evidence is relevant to the actus reus of the offences charged and, more particularly, credibility, whether Mr. W sexually abused the complainants, as they each allege, or whether his denials are credible.

[9] Given the issues the court must resolve in this case, it is sensible to begin these reasons with a detailed summary of the evidence at trial. Next, these reasons will turn to decide the Crown's count-to-count similar fact application. Finally, these reasons will consider whether, based on the admissible evidence, the Crown has proven each of the charges against Mr. W beyond a reasonable doubt.

I. EVIDENCE

[10] The principal Crown witnesses at trial were the complainants, Ms. A and Ms. E. Additionally, the Crown called W E and Mr. M (F's brother and Mr. W's cousin, who lived at the residence for a period). Finally, as mentioned, Mr. W testified as the only witness for the defence. A summary of the evidence each of these witnesses provided follows.

1. I A's Testimony

[11] At the time of her trial testimony, Ms. A was 27 and completing her first year of studies at an ###### law school.

Coming to Canada and the E family home

[12] In 2008, when she was only 13, Ms. A came to Canada from Cameroon to live with the E family at their home in Mississauga and attend school. Ms. A's mother and her uncle, W E, are siblings.

[13] Ms. A testified that the E family consisted of her uncle and aunt, W and F E, their daughter V (Ms. E, the other complainant) and their two sons. At the time of Ms. A's arrival, Mr. W's mother, who was already in Canada, was also living with the family. Although the family lived in Mississauga, her Aunt F travelled back and forth to Cleveland, where she worked.

Mr. W's Arrival

[14] Ms. A testified that she first met Mr. W in the summer of 2009 after he arrived in Canada from Cameroon and came to live at the E residence with his siblings, where his mother was already living. (Mr. W would have been 17 when he arrived and turned 18 in March 2010.)

[15] Although Mr. W and his mother and siblings soon moved out, Ms. A estimated that he returned in September 2009 and lived with the E family for several years after that. Ms. A did not know why Mr. W returned to live with the E family rather than living with his mother and siblings.

[16] Mr. W occupied a bedroom in the basement, while Ms. A had her own bedroom upstairs. She testified that Mr. W did not have any caregiving responsibilities toward her but that he was responsible for the cooking and other household tasks.

Religion in the E home before and after Mr. W's arrival

[17] Ms. A testified that the E household was religious, even before Mr. W's arrival. The family attended church every Sunday and prayed before meals. However, Ms. A testified that religion came to play a far more dominant role after Mr. W moved in. After his arrival, she described everything taking on more of a religious overtone and being subject to prayer, explaining that if there was “anything wrong,” they “had to pray about it.”

[18] In the religious life of the household, Ms. A testified that, despite his youth, Mr. W was “at the top” and served as a “guide to everyone.” That even included her uncle and aunt, W and F, who she testified treated him with reverence. By way of explanation, she ultimately learned that during his childhood in Cameroon, Mr. W had apparently been in a wheelchair and eventually regained his ability to walk, which had something to do with religion. Based on that history, Ms. A testified that the family believed Mr. W had special spiritual powers.

[19] According to Ms. A, all the children at the E home, including her, would pray with Mr. W. He would lead group prayer sessions but also pray with the children individually. Ms. A testified to praying with Mr. W alone in his bedroom, not because she wanted to but because her aunt F strongly encouraged her to do so.

[20] Ms. A testified that she knew Ms. E's older brother also had private prayer sessions with Mr. W in his bedroom, as he argued with his mother about these and religion more generally. Given his experience, Ms. A testified that she did not feel she had a choice to refuse to attend the private prayer sessions with Mr. W in his bedroom.

[21] Ms. A testified that any problem or challenge in the lives of those living in the household was subject to prayer. Her aunt would tell her, “M is religious; he will help you pray. You should pray with M.” This included praying to resolve health issues because “he knew how to fix your problems with prayer.” She testified that everyone in the household turned to Mr. W for anything relating to religion, spirituality, or healing.

[22] For example, Ms. A explained that she had been diagnosed with uveitis in her left eye, and that they could not determine why her immune system was acting up. In response, she testified that her Aunt F came to believe that the cause was a religious “attack” of some kind and insisted that she pray with Mr. W to help resolve it.

[23] Ms. A estimated that her private prayer sessions with Mr. W began after he moved back into the E household in September 2009. They took place in his basement bedroom. According to Ms. A, her initial visits to his bedroom only involved prayer, with Mr. W doing most of the praying while they were together in his room. He would then assign her “homework,” directing her to read specific Bible verses.

The sexual abuse allegations

[24] Near the end of 2009 or the beginning of 2010, when she was still just 14, Ms. A testified that the “prayer” sessions came to include Mr. W “checking” her, which involved acts of sexual intercourse.

[25] Ms. A testified that these types of sessions occurred at least once per week, and sometimes multiple times per week. They occurred so frequently, that, by the time of trial so many years later, she could not recall the first prayer session that involved sexual intercourse.

[26] However, Ms. A testified that after the “checkings” began, each instance usually followed the same “protocol.” Late in the evening, once the others in the household were in bed, Mr. W would send her a text or a Facebook message saying: “You need to come down for me to check you.” She would go to his bedroom in the basement and knock on the closed door, and he would tell her to come in.

[27] Most of the time, when she entered, she would find Mr. W praying while kneeling at his bed or sitting at his desk. The lights in the room would be off, and he would usually not acknowledge her presence. She would enter the room, close the door, and stand by the door until he finished praying.

[28] At that point, Ms. A testified that Mr. W would tell her to remove her clothes because “I have to check you” and then direct her to lie on his bed. Eventually, he no longer had to tell her to do so because she knew to do it, and it had become that routine. He would then remove his pants and boxer shorts and have sexual intercourse with her. Initially, vaginal, with her lying on her back, but, in time, there were multiple occasions of anal intercourse while she lay on her stomach.

[29] Ms. A testified, “I would just lay there and let it happen until he was done,” and explained that she kept her eyes closed most of the time because “I wanted it done, so I closed my eyes and waited for it to be done so I could leave” and indicated that she “hated every single second of it.” She testified that it would end with Mr. W ejaculating on her, not inside her, and that he never wore a condom. She estimated that the intercourse usually lasted between five and ten minutes.

[30] Ms. A testified that Mr. W never asked whether she consented to any of the sexual acts she described during her testimony. She readily acknowledged that Mr. W never used any physical force to secure her compliance. However, she also testified that on many occasions, during the various sexual acts, she expressed to Mr. W that what he was doing was painful. Still, he never stopped or said anything in response. Further, on those occasions that she objected, as she did several times to the acts of anal intercourse, he would respond, “I have to do it,” and he would.

[31] During the acts of intercourse, Ms. A testified that Mr. W would not say anything. Afterwards, he would give her a Bible verse to read. She would then carry her clothes into the bathroom immediately next to his bedroom, clean herself up and put her clothes back on before returning upstairs to her bedroom.

[32] Although the “checkings” usually happened at night, Ms. A testified that some incidents did occur during the day when they were home alone. Additionally, she recalled one occasion when the rest of the family was away in Cleveland, and she and Mr. W were the only ones home when it happened in her bedroom.

The box incident

[33] Ms. A testified that the “checkings” never involved oral sex and that Mr. W digitally penetrated her only once. She could not pinpoint when that occurred “because there were so many incidents throughout the years” but described it as one of the “situations that stick to you.”

[34] Ms. A described being in Mr. W's bedroom, him using anointing oil on her, and then placing his hand inside her vagina and moving it around. At the time, she had her eyes open. Ms. A testified that Mr. W “supposedly pulled something out” from inside her vagina that he held in his closed hand and placed in a box. She asked him what it was, but he did not show her or respond directly, instead alluding to removing a “devil or evil or bad thing” from inside her. After that, he proceeded to have intercourse with her.

Rationalization for the “checking”

[35] Ms. A testified that she understood that what she and Mr. W were doing involved sex and knew it was “questionable” from the beginning. However, Mr. W characterized what they were doing as a form of “prayer,” something they were doing for her own good. He never suggested that they were doing anything wrong, and at that the time, at least in her mind, she thought these interactions could have a healing purpose and took place to help figure out what was wrong with her.

[36] Initially, Mr. W told her he would need to perform these “checks” ten times. However, she testified that number came and went; and the “checkings” continued for years, despite this.

[37] Ms. A testified that she tried to question Mr. W about what they were doing and how long it would last. But he did not provide any straightforward answers. Instead, he always insisted that the “checks” were a form of prayer meant to heal “whatever is wrong with you” and never provided a direct answer concerning what was “wrong” with her. Further, he repeatedly claimed that he was performing these “checks” at a considerable toll on his health and was “hurting” himself to help her.

[38] Finally, when she questioned what he was doing or his motives, Ms. A testified that it invariably backfired on her. In response, in the household Mr. W would behave angrily towards her and complain about her to their aunt that she was disrespectful toward him. She testified that her aunt consistently took his side and even required her to apologize to Mr. W for her behaviour.

Pregnancy and abortion

[39] When Ms. A was 17, she became concerned that she was pregnant, which was confirmed by a pregnancy test Mr. W purchased. When she asked him what they would do and expressed a desire to tell her aunt, she testified that Mr. W said there was an “ogbanje baby” inside of her (a “devil child”) and that he would take care of it. She did not know what he meant by that.

[40] During cross-examination, Ms. A acknowledged that during her statement to the police, she said she “never believed the whole ogbanje thing.” Questioned about this, she explained that, back then, she did not know what to believe and that Mr. W had “twisted the truth for years” by that point. And everything was just “jumbled up,” and it was a “confusing time.”

[41] Ms. A testified that Mr. W told her not to tell anyone about it, including her aunt. She explained that, at the time, given her age and that she was still in high school, being pregnant was “not really a good thing,” and she did not want anyone to know.

[42] One morning, she and Mr. W left the E residence in Mississauga very early, she testified. According to her, Mr. W told the family they were attending a church that day to do some volunteer work, and they instead travelled to a clinic in Toronto. Ms. A initially testified that she only learned where they were going after they arrived.

[43] However, during cross-examination, Ms. A acknowledged telling the police that Mr. W had told her “We were going to go for an abortion” and that there was a “cover story we were going to have to tell my aunt.” Although acknowledging the apparent inconsistency, Ms. A explained it by citing the passage of time. She also noted that she did not know precisely where they were going for the abortion as Mr. W arranged it. Finally, she testified that when they left the house that morning, she could not remember whether she knew they were going to an abortion clinic.

[44] Once at the clinic, Ms. A maintained that she completed the intake form while Mr. W sat beside her. That form, dated March 12, 2012, obtained directly from the clinic, and admitted under the business records exception to the hearsay rule, became an exhibit at trial.

[45] In the form, Ms. A listed Mr. W as her “emergency contact” and his relationship with her as “Brother;” she testified that he told her to do that. Where the form asked who had accompanied her that day, she wrote “Brother,” meaning Mr. W. At that time, she did not have a brother who lived in Canada.

[46] Further, the form asked why she had decided to end the pregnancy and offered various options. Ms. A checked the spaces for “Bad timing” and “Age.” Ms. A testified to choosing these because they seemed like the “logical ones.” She did not check “Rape or Incest,” even though that was one of the options, explaining that Mr. W was sitting beside her when she was completing the form.

[47] Ms. A testified that within a couple of weeks of the abortion, Mr. W asked her to come to his bedroom for another “check.” According to her, she resisted doing so and argued with him about the “checkings” continuing. Nevertheless, Ms. A testified that Mr. W was insistent, telling her that something was wrong with her and that the “checkings” had to continue. She testified that arguing with him “never helped.”

The beginning of the end

[48] In the fall of 2013, Ms. A commenced university and left the E household to live in residence that school year. After she started university, she made friends and had distance from and an opportunity to reflect on her life at the E residence. Over time, she realized what had happened while she lived there was “messed up.”

[49] During her first year at university, Ms. A testified that she only returned to Mississauga for medical appointments. If she stayed at the E residence, it was only for one night before returning to school. That year, Mr. W was living in Welland while attending college there.

[50] At the end of her first year of university, in the spring of 2014, Ms. A returned to the E residence for the summer, as did Mr. W. Although she had secured an apartment for her second year, the lease only began in September.

[51] Ms. A initially testified that she could not remember whether further “checkings” occurred that summer. However, after having her memory refreshed from her police statement, she testified that her eye issue had flared up again. Further, she testified that Mr. W's messages for her to come to his bedroom persisted, as did the “checkings.”

[52] Ms. A testified that the dynamic between Mr. W and her had changed by then and that she had become more resistant to the “checkings” and generally more combative with him. She attributed this to gaining some perspective on things based on her year away at university.

[53] As a result, beyond increasingly refusing the “checkings,” she resisted following Mr. W's instructions more generally, for example, by refusing to drive him places (he did not have a license, and she did). That led to conflict in the household and her feeling “ganged up” on by him and Ms. E. She testified that when she would not do things he wanted in the home, he would complain to her aunt, which resulted in her fighting with her aunt.

[54] Ms. A testified that because she resisted many of the “checkings” that summer, Mr. W claimed that by doing so, she was “hurting him.” She testified that Mr. W acted ill, lethargic, and down, and said that he was sick because of her and could die if she did not let him “check her.” He told her that if he died, it would be her fault. Although Ms. A initially doubted what he was saying, she eventually succumbed to the pressure when he persisted in these claims; as a result, she submitted to one last “checking.”

[55] Ms. A testified that the final “checking” occurred at the end of the summer of 2014. She could not recall whether it involved vaginal or anal intercourse, testifying that she was “so numb by then” that “he could have done anything to my body” because “I was done.”

[56] After that, she did not recall him messaging her again to submit to another “checking” before she returned to school that September. Ms. A testified to sending him a long message, looking for answers, including what had been in the box, asking about the abortion, and what was wrong with her and needed fixing. Although she could not recall if he responded, she testified that he never provided any answers to those questions.

[57] Once back at university in September, Ms. A testified that although she did not block Mr. W's number, she stopped responding to his messages. By then, she had rented an apartment, finally moving out of the E residence. She testified to never seeing him again after the summer of 2014 when she returned to school.

[58] After she returned to school and had an apartment of her own, Ms. A testified to mostly ignoring members of the E family and Mr. W. After that, she testified that she rarely spoke to her aunt, uncle, or cousins, and only returned to the E home for Christmas.

Explanation for delayed disclosure

[59] Ms. A testified that she felt isolated and alone while living in the E household. Although she participated in group activities with the other family members, everything was very “surface level,” and she was not “close” with any of them. And, as it concerned Ms. E, even though they were only a year apart in age, they were not friendly with one another and essentially just co-existed in the home.

[60] Similarly, Ms. A testified that she felt isolated at her “massive” high school and referenced her strong Cameroonian accent as the reason she did not feel she fit in there. Ms. A testified that she did not feel she could speak to anyone at her school about what was happening between her and Mr. W, whether a counsellor, teacher, or friend.

[61] Further, Ms. A testified that she did not have a relationship with the priest at the church they attended every Sunday, such that she would have felt comfortable speaking to him about what was happening with Mr. W.

[62] Ms. A testified that the first person she ever spoke to about what Mr. W had done to her was her aunt, F. Ms. A was back visiting for the holidays during the Christmas school break in 2016. She and her aunt were arguing about religion. Ms. A recalled they were in the laundry room when her aunt questioned what was going on with her. Ms. A testified that she finally “cracked” and told her that “M used to check me” and that it was “sexual,” but she was unsure of the exact words she used.

[63] According to Ms. A, her aunt asked how long it had been going on and why she had not said anything earlier. Ms. A approximated the duration but refrained from explaining why she had not said anything earlier as she did not want to get into a fight with her. According to Ms. A, she did not provide her aunt with “full details” but kept things “superficial.”

[64] Ms. A testified that on the same day of her disclosure to her aunt, her uncle learned what had occurred and appeared sad. She testified that she did not discuss with him what had taken place, explaining that it was not something she would talk about with her uncle.

[65] Asked why she had not disclosed the sexual abuse earlier, Ms. A referenced coming from an African family and sex not being something one would discuss or bring up. She emphasized that the disclosure to her aunt occurred while they were fighting (about religion) and was in the heat of the moment.

[66] After her disclosure, Ms. A testified that her aunt and uncle were pretty mad. Her aunt raised the prospect of going to the police with her and told her that if she wanted to go through with that, they would stand by her if anything came of it.

[67] A few weeks later, on January 20, 2017, Ms. A went to the police and provided a statement. She testified that, at the time, she did not know that Ms. E had already spoken to the police.

[68] During cross-examination, Ms. A testified that while Mr. M lived at the E residence, there was an occasion when he put his hands on her leg. She told Mr. W about this, and he told her to tell her aunt, and she did. Ms. A testified that her aunt became upset and yelled at Mr. M.

[69] Questioned about why she would tell her aunt about Mr. M's inappropriate behaviour soon after it happened but not about what Mr. W was doing to her over several years, Ms. A testified that the situations were very different. She explained that Mr. M had no “status” in the E home. In contrast, Mr. W did. He was the religious leader in the house and someone who had authority over them and could not be questioned and challenged. As a result, Ms. A testified that she did not feel she could speak to her aunt about Mr. W's behaviour.

Knowledge of Ms. E's allegations

[70] Ms. A testified that before speaking with the police, she was unaware of anything similar happening between Mr. W and Ms. E.

[71] Since going to the police, Ms. A acknowledged that Ms. E told her that something similar had happened between her and Mr. W but did not share any details, and Ms. A did not ask for any. Ms. A testified that she and Ms. E have never discussed the details of their respective allegations.

[72] Ms. A testified that she and Ms. E are now on friendlier terms than when they lived together in the E home. However, they are currently both attending school and are very busy. While she knows they are “part of the same case,” Ms. A testified, “I do not want to talk about what happened to me, and therefore, I would not ask her about what happened to her.”

The absence of text or Facebook Messages

[73] During cross-examination, Ms. A acknowledged that when she went to the police in January 2017, she did not produce any text or Facebook messages between her and Mr. W. She testified that by the time she went to the police, she had changed phones and deleted Mr. W from her Facebook account. As a result, she no longer had access to the text or Facebook messages he sent her when they were both living at the E residence.

Mr. W's departure and marriage

[74] Ms. A testified that she did not know when Mr. W finally moved out of the E home. She denied knowing anything about the family being upset with Mr. W for doing so. Although she acknowledged hearing that Mr. W had returned to Cameroon to find a wife, she denied knowing anything about the family being upset about this either.

Current attitude toward religion

[75] Ms. A testified that her perspective on religion and faith had changed drastically because of what had happened with Mr. W. She testified that she is no longer religious, nor does she attend church or pray anymore.

2. V E's Testimony

[76] At the time of her trial testimony, Ms. E was 26 and completing her second year of medical school in the United States. She is the middle child of W and F E. She has an older and younger brother. Ms. A is Ms. E's first cousin on her father's side.

The E home

[77] Ms. E testified about the E family home in Mississauga, where she lived with her parents and brothers for most of her childhood. She described how family and friends routinely stayed at the house at different times over the years.

[78] One of the longer-term house guests was her mother's aunt (Mr. W's mother), who lived with them for several years. In February 2009, her cousin, Ms. A, started living with them. Then, in June of that year, Mr. W and his seven siblings, after arriving from Cameroon, also moved in until they found their own home and moved out with their mother in the fall of 2009.

[79] Although Mr. W initially moved out with his family, Ms. E testified that he soon returned to live with the E family; she estimated he came back by December 2009, if not earlier. While living with them, Mr. W occupied one of two bedrooms in the basement, the one closest to the bathroom.

[80] After Mr. W's arrival, her mother's youngest brother, her uncle D (Mr. M), moved in with them in the fall or winter of 2010. He occupied the second basement bedroom while staying with the E family before moving out in the middle of 2011. Ms. E acknowledged that there was also a sitting area in the basement where her brothers occasionally played video games, or the children watched television or movies.

[81] Ms. E testified that she always occupied one of the four upstairs bedrooms but sometimes shared one of those rooms depending on who was staying with them at any given time. Otherwise, she had a bedroom upstairs to herself, as did Ms. A, while her brothers and parents occupied the other two upstairs bedrooms.

Mr. W's return to the E home

[82] Ms. E testified that Mr. W returned to live with them so he could assist with running the household. Mr. W was older than the children (he is three years older than Ms. A and four years older than Ms. E). The upside for him, she testified, was that his school was closer to their home, and he had more space there than where his mother and seven siblings lived.

[83] According to Ms. E, while living with them, Mr. W did most of the cooking and was the person who divided and assigned the remaining household chores amongst the other children. In that regard, she described him as the intermediary between the children and her parents. She testified that her mother told all the children that they had to listen to him and that he took his responsibility over them and the household seriously. Mr. W would report back to her mother if one of them did not do their assigned chores, and there would be consequences.

Religion in the E home before and after and Mr. W's arrival

[84] Ms. E testified that the E household was always religious, which was important to her parents, especially her mother. The children attended Catholic School, and the family attended church on Sundays.

[85] However, she testified that religion took on a far more dominant role and was “forced on us” after Mr. W moved in with them. The family became more deliberate about attending church every Sunday; there were group prayer circles for the first time, led by Mr. W, the addition of a religious shrine in the living room, and much more consistent praying.

[86] Ms. E testified that she had never met Mr. W before he came to live with them. After that, she learned of his childhood in Cameroon, that he could not walk for some time and used a wheelchair, and ultimately overcame his affliction through prayer. She referenced a group prayer session in the living room of the E home, not long after Mr. W arrived, during which his legs buckled, and he fell to the ground. He got up and began talking to “spirits.” After that, Mr. W said that attacks by spirits had resulted in him being in a wheelchair as a child and that he overcame them through prayer.

[87] According to her testimony, Mr. W was the “spiritual leader” in the E home and based on what Ms. E saw, that is how she believed her parents also viewed him. She testified that Mr. W set the tone for a lot of the religious activity in the home, and that her parents “were pretty set on [the children] listening to him and following his instructions and doing what he said.” In that regard, she testified that without qualification, she had to listen to Mr. W.

[88] Ms. E testified that beginning in November or December 2009, Mr. W prayed with some of them individually. For example, she knew there were individual prayer sessions with her older brother, who was having difficulty at school due to behavioural issues. She explained that it was a big deal when Mr. W reported her brother had been “saved and delivered” through prayer.

[89] Ms. E testified that when anyone in the house was having a problem, there would be a suggestion that it was something to pray about. Although her mother never told her she had to pray with Mr. W, she encouraged it by telling her, “He is here; this is his experience.” Torn between her religious belief and her rationality, Ms. E testified that she struggled with the idea that Mr. W had healing powers. While she was “on the fence,” Ms. E testified that even the possibility of it being true permitted her to go along with the idea. In that regard, she testified that the story of Mr. W regaining his ability to walk through prayer weighed heavily in her thinking.

[90] Ms. E explained that family members did not openly discuss the possibility of healing through prayer because there was no room for debating something like that. Her entire Catholic experience, she testified, conditioned her to have faith and not be “a doubting Tas.”[^1]

[91] Additionally, Ms. E assumed that Ms. A had individual prayer sessions with Mr. W because she saw her going down to the basement with her Bible on a few occasions.

Initial “prayer” sessions

[92] Ms. E testified she also had private prayer sessions with Mr. W, beginning at the end of 2010 or the start of 2011. (She turned 14 in late December 2010.)

[93] These prayer sessions, she explained, were precipitated by her having experienced debilitating migraines when she was younger and her mother telling Mr. W about them. In response, Mr. W suggested she pray with him to ward off their return. She acquiesced to that suggestion because she felt that was what she was supposed to do.

[94] At Mr. W's insistence, Ms. E testified that their prayer sessions took place in his bedroom in the basement. Initially, at least, they only involved prayer. She attended his room, he told her the prayers to recite, and he spoke in a language she did not understand to “spirits” in the room, telling her he was talking to “them” to remove whatever was causing her headaches. She described finding the experience nerve-racking.

[95] After one or two prayer sessions, Mr. W told her she was “cursed” by a conflict between her father's and her mother's families. Unless undone, he said she would never find a romantic partner and be forever alone. He said he could take it upon himself to undo the curse, but there was a “catch;” that he would “have to touch me sexually.”

[96] According to Ms. E's initial testimony, the “prayer” sessions involving sexual touching began before her parents renewed their wedding vows in February 2011. She later corrected her evidence, testifying that her parents renewed their vows in March of that year. Ms. E acknowledged being unable to remember whether the prayer sessions involving sexual touching preceded her 14th birthday in late December 2010.

[97] Ms. E testified that Mr. W would text her to come to his bedroom to “pray.” Once there, they would begin as their initial prayer sessions had. The first time there was sexual touching, he told her to expose her chest. She did and believed she had removed her bra. He touched a translucent crucifix to her breast, nipples, hip, and temples. However, she only mentioned him touching the crucifix to her hip in her initial police statement. Ms. E acknowledged the inconsistency but explained that her testimony reflected her current recollection. Mr. W had his clothes on while he did this, she testified. He then asked her to remove her top, and she asked, “Why;” he responded, “Don't ask me why - I know why - do you want me to help you or not?”

[98] The first few times, she testified she was “pretty shaky” and did not fully understand. However, having been told she had to listen to Mr. W, and him having insisted that what he was doing was necessary to “fix whatever was wrong” with her, she went along with it to “cover my bases.” Given what Mr. W said was at stake, she testified to thinking it was best to go along.

[99] Ms. E testified that the “prayer” sessions would end when Mr. W stopped speaking to “the spirits” in whatever language he used to talk to them. If she tried to speak with him while that was taking place, for example, if she said, “M, that hurts,” he would respond, “It's not M, don't call me that.” The session would end when he began speaking to her in English again, saying you are “good for now” or “session complete,” and then telling her to go upstairs. At the end of the first session involving sexual touching, he told her not to say his name during the sessions because, at that time, it was “not him controlling his body.”

Incident involving D

[100] During the second session involving sexual touching, which took place not more than a month after the first, Mr. W told her to remove her top and pants and leave on her underwear. Again, she hesitated, but he said, “I am trying to help you - I am taking responsibility for you,” so she did. He again touched her body all over with the crucifix. On this occasion, he told her to put her shirt back on but not her pants and that she had to sleep in his bed. She climbed under his covers but was shaking so much she could not fall asleep.

[101] Eventually, they heard a noise, like someone coming down the stairs. Mr. W told her to stay there, and he left the room, and she heard arguing but not what was said. Mr. W returned to the bedroom, followed by her uncle D, who looked agitated. He ripped the covers off the bed and saw she was not wearing pants. D left the room, and Mr. W told her to dress, go to bed, and change her underwear before she did so.

[102] Later that night, or very early the following morning, there was a meeting in the laundry room involving her parents, Mr. W, and her uncle D. When her mother asked her to explain what happened, she maintained that nothing had occurred. Ms. E testified that, at the time, she “did not have the vocabulary to explain it or the courage to do so.”

Container incident

[103] Ms. E testified that she mostly kept to herself in the months following the incident involving her uncle walking in on them and only engaged with Mr. W as necessary.

[104] Five or six months later, in October or November 2011, after she had started the tenth grade, Ms. E testified that Mr. W told her he had not “finished” because her uncle had interrupted the process and explained that he would need to pray with her again to complete it and “remove the curse.” She testified to being angry about this, thinking it was unfair, and wondering, “Why does it have to be me.” At the time, however, she felt it was better to be safe than sorry and that it was not worth the risk of stopping.

[105] As a result, when Mr. W began texting her to come to his bedroom to continue their “prayer” sessions, she did. Ms. E testified that the “prayer” sessions then escalated, with Mr. W now requiring that she remove her underwear and penetrating her digitally. She could not precisely remember how many prayer sessions there were of this nature during that period; she thought there were at least two. The last of these stood out in her memory.

[106] Ms. E testified that Mr. W reached inside her vagina with his hand, which was painful, and she expressed that, which led him to cover her face with a pillow. As he went deeper, he said it was “not him” but the “spirits reaching inside her to remove something.” Once he had removed his hand and said she could lift the pillow from her face, she did. At that point, she testified he was holding a frosted glass container, which looked like the kind that holds a candle, and he had covered the top with the palm of his other hand. Something was glowing inside of it.

[107] Ms. E testified to asking Mr. W what was in the container, but he said if he moved his hand, “it” could re-enter her, and he would have to do it all over again. At that point, Ms. E responded that she did not want to see what was in the container and asked if she could go, and he said she could, so she did.

[108] Following this incident, Ms. E testified that Mr. W told her things should be fine after that as what needed doing had been done. After that, she testified there were no further “prayer” sessions for quite some time.

[109] In the interim, Mr. W graduated from high school and started college in Welland, where he lived during the school year. They did not speak very much during that period, only as necessary around the E home on those occasions when he was there.

“Prayer” sessions in the summer of 2014

[110] In the spring of 2014, Ms. E was 17 and finishing grade 12. She testified that she had a crush on a boy in her class; she described it as an “infatuation.” She had shared this with her Godmother's daughter, who was also good friends with Mr. W.

[111] After that, she testified Mr. W spoke to her about her crush, which took her aback, given that her Godmother's daughter insisted she had not told him. When she asked him how he knew, Ms. E testified that Mr. W said he “sees things” when he prays, which is how he knew. According to her, Mr. W told her he could see things from the boy's perspective and that the boy really liked her. According to Ms. E, from April through June, she and Mr. W spoke frequently about this boy and what he was up to.

[112] That summer, Ms. E testified that Mr. W was staying at the E home during his break from school; she did not remember him returning to Welland that summer. However, she acknowledged that he might have taken short trips back, as he still had his apartment over the summer. She was not working that summer and, therefore, was home often.

[113] Ms. E testified that one day early that summer, Mr. W told her, “You know that situation we had dealt with” — referring to the curse — “it’s back.” He said it would interfere with her ability to develop a relationship with the boy she liked. He told her he would “take responsibility for that situation and try to fix it for her.” In response, she testified to telling him that she did not want “to do that again,” and he replied that he would “speak to the spirits and see what they said.”

[114] Soon after, Ms. E testified that Mr. W texted her and delivered what she characterized as “absolutely terrifying, horrible news.” He asked that she not get mad but that the spirits had said that they would need to have “sex” to resolve the situation once and for all, and he invited her to his room to talk about it.

[115] Ms. E testified that, in response, she went to his bedroom in tears, and he told her it was “okay” and that he had a “workaround;” that the spirits said it would be fine if “they just pretended to have sex.” When she questioned Mr. W on what that meant, he said he should not even be helping her and complained that she mistreated him after the last time and only considered helping her again because he cared so much about her.

[116] After that, Ms. E reluctantly agreed to continue with the “prayer” sessions. Pressed on why she did so, she explained having a state of mind between believing that her love life was cursed and fearing the possibility that it might be true.

[117] The first of these “prayer” sessions occurred that night or the next day. That session, and those that followed, essentially unfolded the same way. They usually occurred late at night, when everyone was already in bed, or during the day when nobody else was home. Ms. E would enter Mr. W's bedroom and sit on the bed. Although the light was on in his room, it was still relatively dark. (By then, the windows to his bedroom had been covered with newspapers.) Mr. W did not say anything. He would bow his head and begin speaking to the “spirits” slowly and quietly.

[118] About a minute later, he would say, “I am going to go now, and they are going to take over.” He would then tap on clothing items for her to remove, and she would comply until she was entirely naked. Digital penetration would follow; if she spoke, he would respond, “It's their fingers reaching into you, not mine.” He would suck on her breasts and kiss her, shoving his tongue in her mouth. He remained clothed and always wore one of two pairs of soccer shorts during these incidents, one of these, she knew, had a hole in the crotch area. Once on top of her, with his hands on each side, he would penetrate her vaginally while still wearing his shorts.

[119] Ms. E testified that if she tried to look down at what Mr. W was doing, he would pull away and stop until she stopped looking. As a result, she never saw his penis penetrate her, but she was sure it did. During cross-examination, she was adamant that it was not conceivable that he was using something else, like a dildo, because his hands were on each side as he leaned over her.

[120] Ms. E estimated that the intercourse would always last between five and ten minutes. On the first and then on subsequent occasions, she did not see him ejaculate or find any signs of ejaculate afterward. However, she could not say whether Mr. W wore a condom during the intercourse, as she never had an opportunity to see if he did because he would always stop and back away if she tried to look down while he was penetrating her. For similar reasons, Ms. E did not know whether he was circumcised, even though she had touched his penis on a single occasion, explaining that she had not looked at it the one time she did so.

[121] Ms. E testified that if she expressed that the intercourse was painful or vocalized displeasure, Mr. W would stop and get upset; he'd kiss his teeth, scowl, and ask, “What are you doing!” Afterward, when he was “back in control,” he would say, “The spirits are telling me you are giving them a hard time; you are supposed to make like you are enjoying it.” Even though she stopped expressing her discomfort, she found it impossible to feign pleasure and settled on trying to project “neutrality” to what was happening.

[122] As mentioned, she testified that the “prayer” sessions mainly occurred in her bedroom and followed the same pattern, except that he occasionally placed her on all fours and penetrated her vaginally from behind. He also performed oral sex on her once or twice. Beyond that, there was an incident in the living room when they were watching television, and both were underneath a blanket when her father was in the room sitting on a different couch. Without warning, Mr. W digitally penetrated her under the blanket. She testified that she felt she could not say anything, and that Mr. W thought it was funny and laughed.

[123] Ms. E testified that although Mr. W had initially assured her that only three sessions would be necessary, as the summer progressed, he kept adding more. Ms. E estimated that that summer, the “prayer” sessions involving penetrative sex occurred almost every day except when she was on her period. Mr. W required that she tell him when she was. Eventually, he told her it would need to continue until she left for school.

[124] Ms. E testified that throughout, Mr. W maintained that he risked his own life by trying to fix her “curse” because it meant he would undergo “spiritual attacks” that “manifested like physical beatings at the hands of the spirits.” Further, if she could not attend a particular session, for example, because she went out with friends, Mr. W would complain that he was attacked and would blame her.

[125] Ms. E testified that beyond the “prayer” sessions, she had a friendly relationship with Mr. W that summer. They would talk about whatever was happening in their lives and were “buddies.” While she disliked the prayer sessions and did not want them to continue, she believed Mr. W was genuinely trying to help her and did not resent him despite them.

[126] When the time came for her to go away to university in September, Ms. E testified that Mr. W told her she was leaving too soon and that he had not finished “the work he was doing” for her. He told her it would be fine if he fell in love with someone before she left; otherwise, “the work” would need to continue. When that did not happen before she left, he expressed concern that if too much time passed between their sessions after she left for school, he would get “spiritually attacked.”

[127] As a result, Ms. E testified that she began helping Mr. W to find a girlfriend. He would share texts girls sent him, and she would assist him in crafting responses. She did this because she saw it as “an out.” If Mr. W were to be successful, the “prayer” sessions would finally stop.

2014/2015 school year

[128] Once Ms. E was away at university and Mr. W was back at college in Welland, she testified they continued to communicate by text and spoke on the phone daily, sometimes for as long as five hours.

[129] Ms. E testified that Mr. W would get upset with her if she did not take his calls. He would text that she must want him to die because he maintained they if they did not speak, bad things would happen to him. He would complain about suffering “spiritual attacks,” claiming they were debilitating, that he could not keep food down, and could not do his schoolwork. Beyond her not taking his calls, he would also cite them not having their “prayer” sessions and pressure her to visit him to alleviate his plight, and she would capitulate.

[130] Ms. E testified that she would see Mr. W at the E residence when they were home from school or travel to Welland to stay with him. Ms. E testified that she had visited him in Welland a few times. She recounted how she travelled to Niagara by Go Bus from the city in western Ontario where she was attending university, which took three to four hours and was then picked up by a friend of Mr. W's and driven to the home he shared with roommates.

[131] Ms. E testified that she met some of Mr. W's roommates while visiting him at his residence in Welland. She recalled the names of two of his roommates, “Rachel” and “Dylan,” including Rachel's surname. She disagreed with the suggestion that his roommates were named “Makeda” and “Nastia.” According to Ms. E, she and Mr. W would hang out with his roommates until everyone had gone to bed. Then, they would go to Mr. W's bedroom, where the “prayer” sessions would unfold as they always did.

[132] Ms. E testified that when she visited him in Welland, she questioned Mr. W concerning when the sessions would end. He would tell her they were “almost there” and ask her to “bear with me.”

Summer of 2015

[133] Ms. E returned to the E home in Mississauga for the summer of 2015, as did Mr. W. She had two jobs that summer and was not home very much. Mr. W was working nights that summer; he was doing something related to trucking. However, there were times when they were both home, either in the morning or the afternoon. Ms. E testified that the “prayer” sessions continued that summer but not as frequently as before because of their work schedules.

[134] Ms. E testified that when her work schedule permitted, she would drive Mr. W to work at 7:00 p.m. and pick him up at 7:30 a.m. the following morning.

[135] During her testimony, Ms. E recounted an incident from that summer that stood out in her memory. She testified that one evening when she was driving him to work, he was complaining that they had not had a “prayer” session for some time because of their conflicting schedules. He was angry and said that he was working in dangerous conditions while undergoing “these attacks” and that if he made one wrong move at work, “he could die.” Given her work schedule, she explained that she could not do much about it, and he responded, “You have to figure something out.”

[136] In response, Ms. E testified that they parked in the parking lot of his work and had a “short session” in the back of the vehicle. She recalled removing her pants and Mr. W positioning himself behind her and keeping his pants on, which caused some chafing in her vaginal area. Afterwards, Mr. W went to work, and she drove home. Ms. E testified that this incident stood out in her memory because it was the only time it happened in a vehicle.

Fall of 2015 and the winter of 2015/2016

[137] Ms. E returned to university in September 2015. She testified that she helped Mr. W find an apartment before school started because he was not returning to Welland, but he did not want her parents to know this. Together, they found him an apartment in Mississauga, where he went to live, while her parents thought he was in Welland.

[138] Ms. E testified that there were two or three “prayer” sessions that fall, all at the apartment Mr. W rented in Mississauga. She described him coaxing her into further “prayer sessions” with complaints that he was unwell because of the “spiritual attacks.” He mentioned that he had high blood pressure because of them and was taking medication for it. Ms. E testified that the final “prayer” session occurred in November 2015.

[139] By the time of that final session, Ms. E testified that Mr. W had told her about his childhood friend in Cameroon named “S.” He said he had spoken to the spirits, and that if he married S, the sessions could end, and Ms. E would be “good to go.” Ms. E testified that before Mr. W left for Cameroon, she spoke to S on the phone and communicated with her by text at Mr. W's request using his phone. A text message retrieved by police from Ms. E’s phone was one that she had written for Mr. W to share with S. In it, she encouraged S to stick with Mr. W. She testified that she wrote what Mr. W wanted her to say.

[140] In December 2015, Ms. E testified that Mr. W went to Cameroon. She knew he was planning to see S but had no idea he would marry her during that visit. Before his return, Ms. E testified that her mother sent her photographs of Mr. W in Cameroon and asked her if she knew he got married. She testified that this was the first she had heard about it and told her mother as much.

[141] Mr. W returned to Canada in January 2016, and Ms. E and Mr. W's brother picked him up from the airport. Ms. E testified to asking Mr. W where his ring was because he was not wearing one despite having gotten married. He denied getting married and said it was “not real” and that “people are making a big deal about something that is not true.” Given his response, Ms. E testified she decided not to press it.

[142] Ms. E testified that she drove Mr. W from the airport to his apartment in Mississauga, where she dropped him off, and that that was the last time she saw him before these proceedings.

Consent

[143] Ms. E testified that at no point in time did she want Mr. W to touch her sexually. In their text communications with him, Ms. E testified that she always made it very clear that this was not something she wanted to do, that she did not want any part of it and wanted it to be over. However, she testified that Mr. W put tremendous pressure on her to go along with what he was doing. He would say that it was his life on the line, that he was taking the risk to help her, and only doing it because he cared about her so much and did not want to see her hurt by something she did not bring upon herself.

[144] Ms. E acknowledged that during the sessions, before he began touching her sexually, Mr. W would ask if he could without detailing in advance what he would do if she agreed. In her view, these questions were only ever rhetorical, as there was always “a correct answer.” For example, if she hesitated or paused before responding, that would be enough for Mr. W to scold her and say, “I am risking my life to help you. Don't you want my help?”

[145] Ms. E testified that in the moment, Mr. W would pressure her to “consent” by kissing his teeth, sighing, or exhibiting physical frustration if she hesitated before acquiescing. As a result, she concluded that there was only one acceptable answer when he asked for her consent. Ms. E testified there was a “huge amount of pressure on me to answer yes to him.”

[146] Ms. E testified that when the “prayer” sessions began, Mr. W told her a certain number would be required. However, as things progressed, he always said that more would be necessary and kept “moving the goalposts.” As this continued, she increasingly pushed back, questioned why more sessions were required, and made it “very clear that I did not want to do this.”

Explanation for delayed disclosure

[147] Ms. E testified that the first time she told anyone about what had happened between her and Mr. W was in 2016, when she finally disclosed it to her mother.

[148] Asked to explain why she had not said anything earlier, including after the incident involving D when her parents specifically asked her about it, she cited several reasons. Ms. E testified that she did not have a relationship with her brothers that would permit her to tell them.

[149] Additionally, she and Ms. A were not on speaking terms from 2009 to 2016, despite living in the same home and being a year apart in age. In hindsight, Ms. E attributed this to feelings of resentment concerning Ms. A's presence in the house, and some petty arguments they had, which led them not to speak with one another for several years.

[150] Further, at the time, Ms. E explained that while the “prayer” sessions were occurring, she was not on good terms with her parents. She felt animosity towards them for seeming to “join forces” with Mr. W while he lived at the house. During the relevant timeframe, her mother was mostly away in Cleveland, where she worked. Additionally, she had a fair amount of resentment towards her father stemming from Ms. A's arrival in the home, and Ms. E's feelings of being displaced by her. She blamed her father for this.

[151] Finally, Ms. E testified that she did not feel she could tell someone outside the household, as it “seemed so far-fetched to explain the situation to someone unfamiliar with the premise or context.” As a result, she testified to feeling “pretty isolated at that time.”

[152] During cross-examination, Ms. E acknowledged that by the summer of 2014, when she was 17, she knew about unwanted sexual contact from her life experience and schooling “in theory.” However, she testified that “what that would look like in real life is a very different thing” and denied knowing how to deal with something like this at that time. As events were happening, she testified that she did not see the connection between what she learned in school and what was happening to her with Mr. W.

[153] As noted, Ms. E testified that the first person she ever spoke to about what had occurred between her and Mr. W was her mother; she shared this with her mother in late August or early September 2016; by then, she was 19.

[154] Ms. E testified that her mother had been suspicious that something inappropriate had occurred after D reported finding her undressed in Mr. W's bedroom. During the summer of 2016, her mother asked her a couple of times if something inappropriate had happened back in 2011, as D claimed. Each time her mother asked about it that summer, Ms. E continued denying anything had taken place.

[155] However, over time, Ms. E testified that she “could not take it” and that it had been “eating at her.” As a result, she finally sent her mother a text explaining that Mr. W had essentially said she was “cursed,” that they had “individual sessions” to address that, and that they were “inappropriate” and “sexual.” She also apologized to her mother for lying before by repeatedly insisting nothing had happened.

[156] Ms. E testified that following her disclosure, her mother immediately called the police and that she met with the police and provided a statement to them within days. Ms. E maintained that she felt somewhat ambivalent about speaking to the police, explaining that she did not necessarily “want” to do so but felt that was what she “needed to do,” and that it was “what needed to happen.”

[157] Ms. E provided her police statement on September 14, 2016. Her mother accompanied her to the police division. Ms. E testified that this was the first time she shared details of what had happened with anyone.

[158] During direct examination, Ms. E testified that she did not share any “graphic details” with her mother either during her initial disclosure or later because that would have been far too uncomfortable. In contrast, during cross-examination, when questioned about what her mother told police, including that Ms. E said that Mr. W put a pillow over her face, told her they needed to have intercourse to “get the stuff out of you,” and that some of the incidents happened in Welland, Ms. E readily conceded that she must have told her mother these things, but said she could not remember doing so.

Text messages

[159] When Ms. E met with the police on September 14, 2016, she provided them with her phone. The police attempted to retrieve texts from Ms. E's phone that she exchanged with Mr. W between April 2011 and December 2015. The police extracted 777 such text messages. Of these, 776 had been “deleted,” but were still on her phone as its operating system had not yet permanently erased them. Ms. E testified that she deleted many of the text messages she exchanged with Mr. W in response to his periodic requests that she do so.

[160] The deleted texts that police retrieved involved communications from April 20, 2015 to September 13, 2015. Ms. E authenticated the texts and testified regarding some of them.

[161] Several texts from the summer of 2015, when they were both back at the E home, involve Mr. W complaining about Ms. E not responding to his calls and attempting to arrange for them to “pray.” When doing so, Mr. W occasionally asked Ms. E “not to get mad” about them needing to pray. He repeatedly assured her that a limited amount of praying remained but suggested that this was not a matter within his control, alluding to “spirits” and him wanting it done as much as she did. Ms. E expressed her distress at the continuation of the “prayer” sessions. For example, the following text exchange took place between them on July 28, 2015:[^2]

Mr. W: Hey V we need to pray today pls. I said prayers are done but the today me is not because the are not done with what there are doing. Don't get mad because it will be done before school starts okay. So pls just understand me here that has most has I want it to be done has u.

Ms. E: You can't give me news like that and expect me to be perfectly fine. That's impossible, this is like the 3rd time where you said everything is complete. You even said final. So I think I'm allowed to be upset. Don't diminish my reasonable feelings in the situation by telling me I have an “attitude.” That is not fair. I haven't been as happy as I was to finally be done with this in a very long time, and again it has been taken away from me. My apologies for not being overly excited to have to deal with this again.

Ms. E: This is the kind of stuff that will make people kill themselves. At least if I die I know it'll be over for good.

Mr. W: Am not out to kill u thanks.

Mr. W: And I will never be out to kill anyone.

Ms. E: I didn't say you were out to kill me. I'm saying this situation is weighing down on me so much it feels like the only way out is to die.

[162] In terms of the earlier promises about the sessions coming to an end, Mr. W sent the following text to Ms. E on June 30, 2015:

So here is the final deal am with S now and I have to get married to her. But to end it with u before finally getting married to her I have to pray with u three more time. Don't get mad about it that just want the have told me the have to happen okay.

[163] Ms. E testified that she was distressed about continuing the “prayer” sessions and Mr. W forestalling their end. She maintained that when Mr. W texted her about “praying,” he never meant just actual prayers.

Knowledge of Ms. A's allegations

[164] Before speaking to the police, Ms. E testified that she knew nothing about any allegations involving Ms. A and Mr. W.

[165] Ms. E testified that she first heard of Ms. A's involvement during a visit home when her parents mentioned that Ms. A had an appointment to speak with the police. When she asked her parents why, they told her she had a “similar situation.”

[166] Ms. E testified that she was surprised to learn of Ms. A's involvement. As mentioned, Ms. E did not like Ms. A and was not on speaking terms with her; she noted they were not even Facebook “friends.” From her conversations with him, Ms. E believed Mr. W felt the same way about Ms. A; he also had insisted he only did what he did with Ms. E because he cared about her. She testified that something having happened between him and Ms. A did not seem within the realm of possibility to her.

[167] Ms. E testified that she never spoke to Ms. A about what had happened between her and Mr. W prior to Ms. A talking to the police. At that time, they were still not on speaking terms.

[168] Ms. E testified that their first “non-hostile” conversation with Ms. A after many years occurred in April 2018. Although Ms. E acknowledged that her relationship with Ms. A has improved since then, she noted they have limited contact because they live in different cities. She denied that they ever shared any details concerning their respective allegations.

Mr. W's marriage

[169] During cross-examination, Ms. E acknowledged knowing that her mother and Mr. W's mother were upset that he had gone to Cameroon and married without telling them. However, she denied knowing anything about her mother having someone else in mind for him to marry. Further, she denied fabricating her allegations of sexual abuse against Mr. W to appease her mother because she was angry with Mr. W. Ms. E characterized that suggestion as “completely untrue” and “categorically incorrect.”

Current attitude towards religion

[170] Ms. E testified that she no longer wants anything to do with religion. She explained that from her perspective, religion creates hierarchies, and much abuse has been associated with it, reminiscent of her experience with Mr. W. As a result, she testified that she is now agnostic.

3. D M's Testimony

[171] Mr. M is F E's brother and Mr. W's first cousin; their mothers are sisters.

Staying at the E home

[172] After he arrived in Canada in December 2010, Mr. M lived at the E home. He stayed with the family until the summer of 2012.

[173] Initially, Mr. M slept upstairs. He moved into the second basement bedroom once a bed was in that room. His bedroom was on the other side of the basement from the one occupied by Mr. W. At the time, the E family was using the living area in the basement for storage. Mr. M testified that there was no television or couches there when he lived at the house.

[174] When he moved in, Mr. M testified that he was not working for the first four or five months. However, he eventually secured employment and worked nights from 11:00 p.m. to 7:00 a.m. Monday through Friday.

Mr. W's childhood

[175] Mr. M testified that he grew up in the same household as Mr. W in Cameroon. He testified that when Mr. W was a child, there was an extended period— he estimated about five months— when he was sick and could not walk and used a wheelchair. As far as he knew, there was no formal diagnosis to explain why he could not walk, but Mr. W claimed it was due to attacks by “evil forces.”

[176] Eventually, Mr. W began walking again and stopped using a wheelchair. According to Mr. M, at the time, Mr. W claimed he regained his ability to walk because he prayed to God, which broke the evil forces. Mr. W described this as a “miracle.”

[177] Mr. M testified that the entire family accepted Mr. W's explanation for his recovery. And that after he began walking again, Mr. W spoke and acted differently. He testified that when it came to matters of spirituality, Mr. W could make you believe anything he said.

Mr. W's role in the E home

[178] Mr. M testified that at the E home, Mr. W continued to be spiritual. He led group prayer sessions in which everyone in the household participated. After these, Mr. W would bless the house with holy water. Additionally, some of the children would pray individually with Mr. W.

[179] According to Mr. M, Mr. W told them that there were “witches all around” and people were trying to cause “evil to us” and encouraged everyone to pray to help ward off something bad from happening. He also occasionally said he was enduring “spiritual attacks” and attributed these to his efforts to assist the E family. Mr. M testified that everyone in the household took these claims seriously because they looked up to Mr. W as God-fearing and did what he said. This included Mr. M.

[180] However, at a certain point, Mr. M testified that he began doubting Mr. W's claims. The turning point, he explained, was when Mr. W said that W E's mother was “a witch,” something that Mr. M could not accept. Nevertheless, he mostly kept his doubts to himself because everyone in the E home believed Mr. W. The only person he spoke to about his misgivings was his sister, F. He testified that his comments were not well received because she also wholeheartedly accepted Mr. W's claims.

[181] Mr. M testified that while he lived in the E home, Mr. W and F were very close and that she listened to everything he said, especially on matters of spirituality. He further testified that she “wanted everyone to go and pray” with Mr. W and remembered her telling the children to do so. Mr. M essentially described Mr. W as an authority figure over the children in the household, testifying that if they did not do what Mr. W said, he would report it to F and the children would get into trouble for not listening to him.

Incident involving Ms. E and Mr. W

[182] Mr. M testified that he knew that Ms. A and Ms. E had individual prayer sessions with Mr. W in his bedroom in the evening. He testified that in the winter of 2011 before he began working nights, he had observed Ms. E go to the basement on many occasions to pray with Mr. W in his bedroom. He estimated seeing her do this between six to ten times.

[183] Mr. M testified that one night he was watching television in the living room on the main floor along with his cousin “H” (one of Mr. W’s brothers). After observing Ms. E go downstairs and not return for an extended period, he became suspicious and decided to investigate. He went outside and peered through Mr. W's bedroom window. When he did, he testified that the lights were on, that he could see Ms. E's top and shorts on the floor, and that she and Mr. W were under the covers. He returned to the house and summoned H outside to see what he had observed, pointing out Ms. E's clothes on the bedroom floor. They then went back inside and directly to Mr. W's bedroom.

[184] Once there, Mr. M testified that he banged on Mr. W's bedroom door, demanding that he open it. He estimated that after 10 to 15 minutes, Mr. W finally did so, and they saw Ms. E beneath the covers, holding on to them to try and cover herself up. Her “shorts and top” were still on the floor. Mr. W was wearing his clothes. When Mr. M asked what they were doing, he testified that Mr. W said, “Praying.” Mr. M testified to responding, “Praying with V in bed?” Mr. W replied that Ms. E had a problem with her back and that he was rubbing oil on her, which is why she was on his bed. However, Mr. M did not see nor smell any oil.

[185] Mr. M testified that he did not try to remove the covers from Ms. E, and she did not do so while he was in the room. Instead, he and H went back upstairs, and a short time later, Ms. E came up, went to her bedroom, and closed the door. Mr. M immediately tried calling F, but there was no answer.

[186] At that point, Mr. M testified that he went to Ms. E's bedroom to speak with her about what he had seen in the basement. He testified that she aggressively denied anything had happened and retreated into her bedroom and shut the door.

[187] Mr. M testified that he waited for F to return to the E home later that morning. She arrived around 6:00 a.m., and he immediately told her what had happened. She then spoke with H, who confirmed what Mr. M had seen. However, when F finally summoned Ms. E to the laundry room to talk to her, Ms. E denied that anything had happened.

[188] A couple of hours later, at F's suggestion, she and Mr. M, H, and Mr. W, left the E home and went to a Superstore to discuss things. When asked what he was doing with Ms. E during that meeting, Mr. W maintained that they had been praying and that he was applying oil to her back.

[189] After that, Mr. M testified that he never spoke with F again about what he had observed, given that she did not believe him. Ms. E also stopped talking to him after that. Eventually, given all of that, in 2012, Mr. M testified that he decided to move out of the E home.

Mr. W's marriage

[190] Mr. M testified that he only learned that Mr. W had gotten married four years after the fact. He denied knowing anything about F being upset with Mr. W about his marriage or the surrounding circumstances.

4. W E's Testimony

[191] Mr. E is VE's father and IA’s uncle. Mr. W is his wife F's cousin.

Mr. W comes to live at the E home

[192] Mr. E estimated that Mr. W came to live with his family in either 2008 or 2009. He was confident that Ms. A came to live with the family in 2008 before Mr. W and his family did. He thought Mr. W arrived in 2008, but he was less than sure in his testimony as to whether it might have instead been in 2009.

[193] Initially, Mr. W moved in with his mother and siblings, but within a few months, they moved into their own place. Mr. E estimated that after about a year, Mr. W moved back into the E home alone. However, he had difficulty placing the precise timing of Mr. W's return.

[194] When asked why Mr. W returned to live with his family, Mr. E testified it was the subject of discussion with Mr. W's mother. It made sense because Mr. W and Mr. E's older son attended the same school, where both played football, and the school was closer to the E home than where Mr. W's family lived. Additionally, Mr. E's eldest son was struggling at the time, and Mr. W suggested he could be like an older brother to him. Mr. E thought Mr. W would be a positive influence on his son.

[195] According to Mr. E, while living with the E family, Mr. W had a bedroom in the basement. He testified that the living room in the basement did not have much in it when Mr. W lived there and that he only put some furniture and couches down there later. He could not say whether he had placed a television in the basement while Mr. W lived with them.

[196] Before Mr. W arrived, Mr. E testified that he had never met and knew little about him. At the time he understood, from Mr. W's mother, that Mr. W had lived in “a handicap centre” in Cameroon and that he had somehow “got healed.”

Religion in the E home before and after Mr. W's arrival

[197] Mr. E testified that he and his family are Catholic. He described himself as religious and his wife, F, more so. For example, he testified that before Mr. W's arrival, it was not uncommon for his family to attend church on Sundays, and they occasionally prayed together at home.

[198] However, Mr. E testified that after Mr. W moved in with his family, he complained that there “was no prayer” in the home and group prayer sessions became much more frequent. These were led by Mr. W, his siblings, and Mr. E's wife. The group prayer sessions continued after Mr. W returned to live with the family.

[199] Mr. E testified that when Mr. W moved in with them, he did not know “how to read him.” After he moved in, Mr. E heard that Mr. W was “probably gifted,” which he took to mean he could “intercede” through prayer and had “certain powers.” However, Mr. E testified that he was skeptical because he did not see evidence to substantiate these claims.

[200] When asked if he ever mentioned anything about “spirits,” Mr. E testified that Mr. W once told him that his oldest son was “possessed.” He knew his oldest son prayed with Mr. W on at least one occasion after that revelation. Mr. E explained that, at the time, his oldest son was 14 and challenging his parental authority and acting, in his view, as many teenagers do in that stage of their development. Mr. E never had individual prayer sessions with Mr. W, but he was unaware of whether, beyond his eldest son, other family members did so.

Mr. W's position in the E home

[201] Mr. E testified that because Mr. W was older than the other children in the household, he was treated with some degree of respect by everyone in the home. Mr. W had a good relationship with Mr. E's wife, F; he was like “an extended arm” of his wife in the house, and they had a relationship like that of siblings (rather than cousins). If anything needed doing around the house, his wife would look to Mr. W first, and he would assign or delegate chores to the children on her behalf. Additionally, Mr. W did most of the cooking. Mr. E testified that if he had an issue with the children, he would first speak to Mr. W about it before talking to them.

[202] However, Mr. E testified that there was never a discussion concerning Mr. W's responsibilities while living in their home. Neither he nor his wife told the children that Mr. W had authority over them and that they had to listen to him. To the contrary, he testified that if there was an “authority” in the house, it was him or his wife.

After Mr. W started college

[203] Mr. E believed Mr. W began college in Welland in 2012, although he seemed unsure of the year. He testified that, to the best of his knowledge, Mr. W would remain in Welland during the school year and not return to the E residence. He could not remember Mr. W returning while at school.

[204] Further, Mr. E agreed that Mr. W had to take courses during the summer at some point while at college, but he could not be sure in which years. He “supposed” that when he did so, Mr. W remained in Welland for those courses and did not return to the E residence. Mr. E could not recall if Mr. W remained in Welland during the summer of 2014.

Mr. W's departure from the E residence

[205] Mr. E testified that Mr. W continued to live with his family until 2015. He testified that just before or slightly after the fall semester began that year, around August or September, Mr. W mentioned taking his things down to Welland; Mr. E assumed he meant some of his belongings and only temporarily for the school year. Mr. W remained at the residence for a few days after that.

[206] Mr. E testified that a couple of weeks later, he saw a car outside the house, which Mr. E assumed belonged to a friend of Mr. W's because he did not drive. On that occasion, he spoke with Mr. W for about 15 minutes, and after that, he saw the car drive off.

[207] Only when he went into the basement a couple of weeks later did Mr. E realize that Mr. W had removed all his belongings from the residence. Mr. W never returned after that. Mr. E testified that he told his wife that Mr. W had left, which was news to her. But he could not recall her specific reaction when he told her.

[208] Mr. E testified that since Mr. W left their home, he had not seen him again until testifying at this trial.

The September 10, 2016 email

[209] Mr. E testified that Mr. W never explained why he left when he did. He maintained that neither he nor his wife knew the reason. Eventually, Mr. E testified to receiving an email from Mr. W on September 10, 2016; he identified a copy of that email, which became an exhibit at trial. In it, Mr. W wrote:[^3]

Hi E family,

Is been long not because I love it is because my life have not been same since I left the house my life have been hell. I want to take this opportunity to beg for apology from the E family what ever I have done to your family to hurt you guys forgive and forget for I am a siner. All my life since I cam to Canada I have try my best with God help to be there for E in any kind of way. Been there in time of sickness, In time of happiness, in time of sadness, in time of spiritual attack and in time of up and down. I almost lost my life in fighting spiritual battle but have never give up on trying to fight to my last blood. Every one may hate me or have never believed me but u guys where there for me to the end. I was like the son that was missing but u guys found me. If by all this Is hurt u guys the family that I love so much then am deeply sorry with all my heart. Hope u guys fine a place to forgive me in ur heart.

T M told me that he will kill me because he know my way about in Cameroon and my girlfriend house. Now the family I love told me let me moved back to Cameroon or the will kill me. Than letting the family I have love and have always love and still love to kill me let me better I moved to Cameroon so that the person (T M) that I don't care about better kill me that u guys as I was call by mom and said Papa said If I no what is good for me let me better move to Cameroon before he kill me with his hands.

Before I moved out, it was because I was sick and no one care to ask how am doing. All I was told or ask was to help and do this and that.

With tears in my eyes am deeply sorry for the pain I have caused in the E family. I knew I was helping and you guys believe in me that's why I was ask at first place to come help and fight spirituals things in the family that was trying to end the E family and I did just that with all my life and heart because I love the family so much. Frm the day i came to this world all that I have seen in my life is suffering and suffer. I which with going back to Cameroo and be kill by T M it will be happiness after I die.

I still love and care. Thinking about u guys everyday and u guys are always in my prayers. Life will be better if I die but not kill by people I love. Let them kill me but in Cameroon by people that promise to do so. My mom, brother's and sister's don't even care what's going on in my life or where I am. Even the one's I abandon my family for don't give a dam. All in my heart is just love and prayers I still pray everyone. So I'm deeply sorr for any way I have hurt u guys. Am not a good guy, am just the guy who give is all and all to help. Please all E family is invited if T as as promised kill me in Cameroon. let i die that way than you guys that I love kill me. Before moving am deeply sorry with sorrow in my heart forgive me in anything that have hurt you guys. Begging in God name for forgiveness. Please all begging also in my die pls come and give just last respect pls and forgiveneness if you guys even just think I did something good for the family and help u guys in any spiritual attack then just the last respect when I die pls. I will not blame u guys in anyway if u guys don't think I have ever help or do someting in Good power to fight for the family. Just begging for forgiveness before I go and be kill back home. Thanks stay bless and be blessed.

Thanks M

[210] According to Mr. E, he had no idea what Mr. W was referring to when he mentioned “spiritual attacks” or “battles” or “almost losing his life in fighting a spiritual battle.” Further, he knew nothing about Mr. W experiencing an illness before moving out of the E home. Additionally, Mr. E testified that Mr. W never mentioned living with the family to fight “spiritual things” that threatened them. Finally, Mr. E acknowledged that T M is his wife's brother and testified that he lives in ######, Ontario (not Cameroon).

[211] Mr. E responded to Mr. W's email with one of his own, sent on September 12, 2016; it formed part of the same exhibit containing Mr. W's email. In his email, Mr. E asked Mr. W what he had done for which he was seeking the family's forgiveness, given that he had not mentioned that in his email. However, he testified that Mr. W never responded to his email.

Mr. W's marriage

[212] Mr. E testified that he knew nothing about Mr. W's marital status. He denied that his wife ever told him that Mr. W had returned to Cameroon to get married or that he knew of that happening. He testified that he knew that Mr. W had visited Cameroon before 2015 but insisted he knew nothing about him since then.

Knowledge of Mr. M's allegations

[213] Mr. E testified that his wife told him about what Mr. M claimed he saw involving his daughter and Mr. W when it happened. At that time, he understood that his wife had asked their daughter about it and spoke at least to her and Mr. W about touching being inappropriate and a crime.

Knowledge of the allegations made by Ms. A and Ms. E

[214] Mr. E testified that he has never discussed Ms. A's or Ms. E's allegations against Mr. W with either of them.

[215] Mr. E testified that he first learned of his daughter's allegations through a telephone call from his wife. Soon after, he suggested they go to the police. A police officer involved in the investigation told him not to discuss the allegations with his daughter, and he testified that he had heeded that instruction.

[216] Mr. E testified that in the six years since he first heard of his daughter's allegations, he has never discussed them with her. To the extent he knows anything about the allegations, it is from what his wife told him.

[217] Concerning the allegations made by his niece, Mr. E testified to first learning about them sometime around Christmas 2016 when she was back from school. He testified that Ms. A had a private conversation with his wife in the laundry room, after which his wife asked him to come into the laundry room, and Ms. A told him that something had happened between her and Mr. W.

[218] During cross-examination, Mr. E denied that he and his wife discussed the allegations made by Ms. A and Ms. E and cited the instructions they received from the police as the reason they had not done so. When pressed about that, he explained that he had trusted Mr. W, who “grew up in the church” and never thought “something evil” could happen in his home. He testified that his daughter and niece had been “churchgoers” yet eventually dreaded attending church. It was only in retrospect that it occurred to him that this resulted from their experience with Mr. W.

5. M W’s Testimony

[219] Mr. W was born in Cameroon on March ##, 1992. He is one of eight siblings. He is now 31 years old.

Denial of the allegations

[220] Throughout his testimony, Mr. W steadfastly denied ever engaging in sexual activity with either Ms. A or Ms. E. Similarly, he denied touching either of them at any point in a way that one might consider sexual.

Mr. W's childhood illness

[221] Mr. W testified that when he was 12 or 13 years old and living in Cameroon, he woke up one day to discover he had been asleep for three days. He had no memory of what had happened the previous days. (He testified that this was in 2006 or 2007, but he would have been 14 or 15 then.) After waking, he soon realized he had no feeling from the waist down. Within a week, he testified to being taken to a rehabilitative centre run by the church, where he remained for almost two years.

[222] Mr. W testified that a specialist from Germany advised him that his nerves from his waist down were “not functional,” that he had “nerve damage,” and that it would be “a miracle” if he ever walked again. He testified that at the rehabilitative centre, he underwent physiotherapy, and there was regular prayer. Mr. W does not know the name of the actual medical condition that afflicted him. Given his age, the doctors spoke with his uncle, not him. Mr. W's uncle is a priest, and he told him that his condition resulted from “spiritual attacks.”

[223] Mr. W testified that, in time, his health improved. He testified that another specialist expressed surprise at his improvement and recommended further exercise, which Mr. W combined with prayer. During direct examination, Mr. W testified that he believed he got better because of exercise and because he was young and still growing. Because his family was religious, he testified they believed his recovery resulted from prayer and was a miracle. That included his mother, who was in Canada then and with whom he was in frequent contact by phone.

[224] During cross-examination, however, Mr. W testified that he did not know what his mother believed and that the priests and nuns were the ones who thought his recovery was a miracle. That included his uncle, the priest, who told him to continue praying the novenas (Catholic prayers to specific saints that usually continue over nine successive days.) Eventually, Mr. W reiterated what he said in his direct evidence, that his mother, as a Catholic, believed that regaining his ability to walk was a miracle, as did F. During cross-examination, he reluctantly conceded his own belief that prayer had something to do with his recovery.

Coming to Canada and the E household

[225] Mr. W testified that within a year and a half of his health improving, he and his seven siblings immigrated to Canada. They arrived in late June 2009. At the time, their mother was already living at the E residence, and they joined her there. They lived there for four months before they moved into a place that W and F purchased and that they rented from them. He estimated that they left the E residence in October or November. Initially, Mr. W lived with the rest of his immediate family.

[226] Mr. W testified that in March of 2010, he moved back into the E residence. Asked to explain why that occurred, he testified that it was at W and F's insistence, and that they begged his mother for him or his brother to move in with them. His mother, who had not lived with her children in years, initially resisted. He testified that the rationale they offered for him to live with them was twofold. First, his school was much closer to their residence. Second, F worked as a pharmacist in the United States and was away a lot, and she needed someone to help with the household chores and cooking. His mother helped with those things when she lived with them, but since she had moved out with Mr. W and his siblings, they wanted him to return and assume that role. Eventually, Mr. W's mother relented and agreed to have him live with the E family, which did he.

[227] Mr. W testified that when he returned to the E home in March 2010, the basement was mostly unfinished beyond his bedroom. However, after Mr. M arrived, he and W completed the second basement bedroom that summer. Then, Mr. M moved from an upstairs bedroom to the second one in the basement, where he remained until he left in the middle of 2012. (Except for a brief period in which Mr. M moved back upstairs when the family hosted visitors who stayed in his basement bedroom.)

[228] Mr. W testified that when he first arrived at the E home, there was no television in the basement. Within a few months, the family bought a new TV for the living room and moved the old one into the basement. After that, he testified that the children would watch movies in the basement, and the two boys would play video games there every day. He testified that they would routinely do this into the late evening, usually going to bed after midnight. During cross-examination, he testified that the children would often go to bed as late as 1:00 a.m. on school nights and even later on the weekend.

[229] Mr. W denied ever telling W and F that their home could benefit from more prayer. He testified that, in his view, there was enough prayer in their home, and that he joined in it. He also testified that he led the family in group prayers when F was away. Beyond that, he testified to praying daily on his own while living at the E residence.

[230] Mr. W testified that once he returned to the E residence, F purchased him a cellphone. They spoke every day, sometimes multiple times a day, with her giving him instructions concerning the meals to prepare for the family and his other responsibilities in the home. These responsibilities included ensuring the youngest E son got up and was ready for school, and cleaning the house sometimes. Additionally, if the other children did not do their chores, he testified that F would ask him to follow up with them and hold him responsible. F also expected him to keep the peace if W was not home and the children were fighting, which he did. Finally, he testified that F would give him instructions concerning the children's prayers.

[231] According to Mr. W, although F was away a great deal for work in the United States, she was the authority in the E home. Everyone regarded her as such, and “when she spoke, everyone listened.” That said, asked during direct examination to describe the nature of his relationship with F, Mr. W testified that they had a good relationship before they eventually had a falling out. He said she was like a “sister” to him. In contrast, during cross-examination, he appeared to resile from that characterization of their relationship and described her simply as a “cousin.” Confronted with that apparent inconsistency, he testified that they mean the same thing for Africans, for whom family is family.

[232] Describing the dynamic within the E home, Mr. W testified that there was tension between W and F's extended families. Ms. A and Ms. E were always fighting and did not get along. In contrast, he testified that he had a positive and sibling-like relationship with all the children. However, during cross-examination, Mr. W noted that that was not true of Ms. A. Although they initially had a good relationship, he testified that, over time, they had many disagreements concerning various things. As a result, they were not very close, did not talk much, and did not text or call one another. Mr. W testified that Ms. A did not have a close relationship with anyone else in the household other than her uncle, W.

[233] Mr. W agreed that he had a close relationship with Ms. E. He testified to confiding in her concerning his love life. Although he initially denied that she did the same, he conceded that she did mention a boy she liked at school. However, he testified to shutting down that conversation rather quickly and telling Ms. E he did not want to discuss this with her because her mother would kill him if he did so. Mr. W testified that whenever Ms. E brought up the boy again, which she did less than five times, he would tell her he did not want to hear about it and threatened to tell F if she mentioned him again.

Praying with the children

[234] Mr. W testified that F regularly gave him direction on specific novena prayers she expected him to pray with the children, except for the youngest, in response to issues unique to each of them. For example, the prayers with the eldest son were to address his school performance, his conflict with his parents, and his nosebleeds. He would also pray with him before important football games.

[235] Concerning Ms. A, Mr. W initially testified that he prayed with her for, amongst other things, F's concerns that she was “controlling” W. He testified that they all saw W as being more attentive to Ms. A than the other children and thought there was merit to F's concerns, and everyone in the household discussed this openly. Further, he testified that F believed Ms. A used “voodoo, something spiritual” to control her uncle, a view that Ms. E shared but that her older brother did not.

[236] In contrast, later during his direct evidence, Mr. W testified that he did not pray the novenas with Ms. A because having come from Africa, she knew them and could do them on her own. During cross-examination, Mr. W testified to only providing Ms. A with Bible verses and sometimes discussing them with her. He denied ever praying with her regarding issues she had with her eye. And, to the extent that Ms. A prayed novenas, Mr. W testified that she prayed those that F prescribed, and he would only monitor if she had and report back to F. He was less than clear as to how he would know whether she had done so.

[237] Finally, Mr. W initially testified to praying novenas with Ms. E while they both lived at the E home and when he returned during school breaks. He initially testified that he prayed novenas with Ms. E to address her recurring nightmares and headaches. Then, much later in his testimony, near the end of his direct evidence, he referenced praying them with her because of the “voodoo” that Ms. A had been using on W, which led him to favour Ms. A over Ms. E. He also testified that Ms. E became increasingly frustrated with continuing the prayers because they did not seem to redress that situation.

[238] Mr. W testified that he only prayed with the children at F's direction, and usually, they would pray a novena. He testified that he held these prayer sessions with the children one-on-one, except with Ms. A. When he prayed with the children, he usually did so in the living room upstairs. However, he acknowledged occasionally praying with them individually in his bedroom downstairs. When he did so, he testified that he never closed his bedroom door. Further, whenever he prayed with Ms. E in his bedroom, he testified that someone was always playing video games downstairs.

[239] Near the end of his cross-examination, Mr. W also mentioned, for the first time, that he prayed novenas over the phone with Ms. E while he was in Welland, and she was finishing her last year of high school.

[240] Regarding Ms. A, Mr. W testified that he never prayed with her one-on-one. Although they discussed Bible verses, he maintained that these discussions never happened in his bedroom. In fact, he denied ever being in his bedroom with Ms. A. Mr. W testified that there was never even an occasion when he would have been alone at the E home with Ms. A. While he ultimately conceded it as a possibility, he denied that the same was true of them being at the house alone overnight.

[241] As mentioned above, Mr. W testified that F prescribed the specific novena prayers he was to pray with the children. During direct examination, he testified that F would pray the novenas with the children when she was home. In contrast, during cross-examination, he testified that she did not do so because novena prayers last more than five days, and she was never home that long.

[242] During his evidence-in-chief, Mr. W denied that his illness and recovery led him to believe he had spiritual abilities. Nor could he say, based on his conversations with them, whether members of the E family thought he had spiritual powers. At one point during his testimony, he denied ever telling members of the E family that he could communicate with God or with spirits.

[243] In contrast, while explaining his text message to Ms. E on June 30, 2015, Mr. W acknowledged that the reference to “they” (misspelled incompletely as “the” in the text) concerned spirits— the same ones he had fought to regain his ability to walk. However, he insisted that was F's doing.

[244] Mr. W then testified that F left the children with the impression that his childhood illness had something to do with spirits, so they would agree to pray with him because they were often reluctant to do so. And he testified that she encouraged him to say that to the children when they were unwilling to pray or to complete their prayers. He testified that he only told the children that because F had instructed him to do so.

[245] Mr. W denied speaking out loud to spirits while praying with the E children. He also denied believing in “spiritual attacks,” or telling Ms. E that spirits would attack him if they did not pray together. Additionally, he testified that he never said that spirits were trying to attack the E family, insisting that “those are F's words.”

[246] Ultimately, Mr. W did testify that he believed spiritual attacks on him had been responsible for his childhood ailment. However, he insisted that he did not think they continued after he regained his ability to walk. Mr. W also acknowledged believing in witches and spirits but denied thinking that anything of that nature was ever happening in the E home.

The incident involving Ms. E and Mr. M

[247] When asked about the incident described by Ms. E and Mr. M, Mr. W recalled it differently than they had.

[248] Mr. W testified that while praying in his bedroom, he received a call from F about Ms. E experiencing a headache and her telling Ms. E to go to Mr. W's room to get some Saint Philomena Oil (an ointment). He testified that a few minutes later, Ms. E came to his bedroom door and told him that her mother had told her to get the oil from him. He estimated that this occurred between 9:00 p.m. and 10:00 p.m. but could not be sure of the exact time.

[249] Mr. W testified he took the oil out for Ms. E and gave it to her. According to him, she complained that the pain from her headache was radiating down to her shoulders. With that, he initially testified that she started to remove her shirt to apply the oil to her shoulders. Before she could do so, however, he testified that he said: “Please stop. I am leaving before you take off your top to rub the ointment,” and he immediately left the room.

[250] During cross-examination, pressed on why Ms. E would not just take the oil to her room, he added to and changed his evidence, testifying that when he handed it to her, he told her to leave it on his table when she finished. Mr. W denied that she began removing her top while he was still in the room and instead testified that he saw her moving toward undoing her top button, so he decided to leave his bedroom at that point because he had already been planning to go upstairs.

[251] Mr. W initially testified that as he proceeded up the stairs, Mr. M was coming down them and that they then went upstairs together to the living room and talked. In contrast, later in his evidence, he testified that Mr. M passed him on the stairs and continued into the basement before returning upstairs. Finally, late in his cross-examination, Mr. W changed his evidence again and testified that when he came out of his bedroom, he saw Mr. M coming out of his room and he went upstairs first and was followed by Mr. M. Mr. W testified that when he and Mr. M spoke in the living room, his younger brother H was also there and playing video games.

[252] According to Mr. W, he and Mr. M were already not on good terms (though he did not explain why). He testified that Mr. M asked him what Ms. E was doing downstairs, and he responded: “What did you see her doing?” Mr. M said they would wait for F to come home and talk about it. Asked during cross-examination why he did not respond by telling Mr. M that Ms. E was applying oil and to ask F about it, he testified, for the first time, that Mr. M had come upstairs shouting and that the two of them were fighting.

[253] The following morning, after F arrived home, Mr. W testified that he, his younger brother H, F, and Mr. M went to the Superstore together, where they sat at a table in the lunch area and spoke about the events of the night before. Mr. W testified that F was upset about him and Mr. M fighting. He also testified that when asked what he saw, Mr. M said that when he came downstairs, he saw Ms. E in Mr. W's room with her shirt off while applying oil to herself. However, during cross-examination, Mr. W changed his evidence, testifying that Mr. M said he saw Ms. E with her “top almost off.” According to Mr. W, F told Mr. M that she knew about the oil and had sent Ms. E to Mr. W's room to get it. Additionally, F said she had already asked Ms. E about it, who confirmed that was all she was doing in Mr. W's room. After that, F said: “I don't know what the issue is here.” And with that, the discussion ended.

[254] A couple of days later, Mr. W testified that he was in the car with F, and she told him not to bother with what Mr. M was saying and to forget about it. During cross-examination, he testified that he was upset by the incident and wanted to leave and move in with his mother, but F begged him to stay, so he did.

Attending college

[255] Mr. W testified that in 2012 he commenced a program in construction engineering at Niagara College's campus in Welland. He agreed that after he left for college, he continued to be in regular contact with Ms. E, communicating daily through text messages and phone calls. He denied ever becoming upset with her for not taking or returning his calls.

[256] Mr. W testified that he lived at the same place and had roommates throughout college. These included “Nastia” and “Makeda.” He testified that “Alex” lived downstairs. Eventually, when Makeda left, “Aidos” moved in. Mr. W testified these were the only roommates he ever had and, contrary to Ms. E's evidence, denied that any of his roommates were named “Rachel” or “Dylan.” Mr. W testified that while the E family visited him more than once while he was away at school in Welland, he denied Ms. E ever doing so on her own.

[257] Although he was confident that the school year for him began in September, he was unsure when it ended. He provided varying responses concerning when his classes finished for the school year, testifying at various points during his cross-examination that they did so in April, then May, before settling on the end of June. He ultimately testified to being unsure when school ended for the summer break because it was so long ago. On the third day of cross-examination, Mr. W returned to court after refreshing his memory from some photographs and testified that the school year ended in May. However, Mr. W added that he would remain at school until the end of June because he was playing rugby, something he had not mentioned before during his testimony.

[258] During his first year at college, Mr. W testified he returned to the E residence during school holidays, including Thanksgiving, Christmas break, March break, and the summer months. During cross-examination, he recalled that he travelled to Cameroon during the summer of 2013 and said he typically went for six weeks.

[259] Mr. W returned to college in the fall of 2013. Like the preceding year, he testified to only returning to the E home for school breaks. He testified that he did not return to the E home after school finished that summer. Instead, Mr. W testified he mostly remained in Welland during the summer of 2014 because he was taking a summer course in “estimating” to make up for a failed class.

[260] Mr. W initially testified his regular classes ended in June, and his estimating class lasted two months. However, after correcting his evidence and testifying that classes ended in May, he insisted that the estimating class lasted four months and ran from May to August.

[261] Mr. W provided confusing evidence concerning how often he returned to the E residence during the summer of 2014. Initially, he testified to only returning once for a two or three-day visit during the summer of 2014 when F picked him up on her way to Mississauga and took him back when she was returning to the United States. He testified that visit took place after regular classes ended and before his summer course began a week later.

[262] Later during his testimony, however, Mr. W acknowledged a second visit to the E residence when he came home for a weekend to attend Ms. E's high school graduation; he remembered taking the bus on that occasion. Still later in his testimony, Mr. W acknowledged a third visit that summer when his estimating course ended, which he said took place in August. Pressed about this final inconsistency, Mr. W testified that the last visit was not to the E residence and that he had stayed at his mother's home on that occasion.

[263] Mr. W testified that during the 2014/2015 school year, he returned to the E residence very little. He explained that he travelled abroad a fair bit that year. For example, he mentioned going to the United States with the E family in November 2014, then travelling to Cameroon alone to visit S in December 2014, returning in January 2015, and going straight to Welland to attend school. He was unsure whether he returned to the E residence for March Break in 2015.

[264] According to Mr. W, he had to complete a survey assignment when the school year finished in June 2015. After he finished that assignment in mid to late July, he testified that he returned to Mississauga. He then stayed with his mother for about a week before going to the E residence. Mr. W gave varying estimates of how long he remained at the E residence that summer, testifying that in August he was there for “a couple of weeks,” “not as much as a month,” and “for a month.” He testified that he was back and forth between the E residence and his mother's home during that period. Mr. W testified to starting a job on August 31, 2015, and moving out of the E residence in September 2015.

[265] However, during cross-examination, Mr. W acknowledged exchanging text messages with Ms. E on July 7, 2015. At 10:32 a.m. that day, he texted her: “If you have time lest pray at 12 noon,” to which she almost immediately responded, “ok.” Then, at 10:47 a.m., he texted her: “Am in my room my door will be up just open it when is time.” Relying on those texts, the Crown challenged Mr. W's claim that he did not return to the E residence until later in July. Mr. W responded that it was long ago and referenced being picked up from school and visiting the E home a few times before finally returning after he completed his survey assignment.

[266] During re-direct examination, Mr. W identified various photographs with time date and timestamps. Some of these were from July 12, 2015. Mr. W is wearing a suit in those photographs. He testified they were taken outside of his mother's residence in Mississauga and that he had only returned home to pick up a suit to wear during his presentation at school. Other photos appear to be from July 20, 2015, he testified that these were taken in Welland.

Breakdown in his relationship with F (and W)

[267] Mr. W testified that his close and sibling-like relationship with F eventually changed. He maintained it broke down for three reasons. The first conflict between them concerned his citizenship application. When his mother applied for citizenship for her and his siblings and wanted to do the same for Mr. W, F told her not to do so as she would take care of it. However, she never spoke to Mr. W about it, which upset him, so he confronted her. In response, F assured him she would take care of it and pay the associated fees.

[268] Mr. W returned to the topic of his citizenship application much later during his evidence when asked about his decision to move out of the E home in September 2015. He testified to arguing with F and W that summer about wanting to move out because he was worried about “the citizenship issue.” He referenced them taking money from his mother for that and not returning it when they failed to submit a citizenship application on his behalf.

[269] Mr. W also testified to finding a letter that showed that F and W had failed to submit a document necessary to complete his citizenship application. He concluded that they did not want him to move out and move on with his life because they wanted him to continue caring for the house while F worked in the United States. After that dispute in the summer of 2015, Mr. W testified to finally deciding to move out and rent an apartment, which he did with the assistance of Ms. E and her older brother. Mr. W testified that he kept his moving out a secret from F and W, given their opposition to him doing so.

[270] Second, Mr. W testified that in 2012 he told F he had a girlfriend in Cameroon who he wanted to marry, S. F opposed the idea, saying to him that with a girl from Cameroon, he had to be careful and that she could be trying to fool him. She said that she would find him a better girl in Canada to marry instead— a nurse or a pharmacist— rather than a poor girl from Cameroon. When he insisted that S was the girl for him, she said “No” and told him she did not want to hear about it again.

[271] Mr. W testified that F hung up on him when he next raised the topic during a phone call in the summer of 2014; at the time, he was in Welland. A couple of days later, she picked him up from Welland on her way home from the United States, and they spoke about it during the drive. Once again, she voiced her opposition to him marrying S, saying that it would not happen, that this was her final decision, and suggesting that there would be consequences for him if he did not heed her decision. He testified that she said, “You know how I kicked D out of the house; I brought you to Canada. I have the power to break you down.”

[272] After that, they drove back to the E residence in Mississauga in silence. Once there, Mr. W testified that F called W, who told him he should finish school before considering getting married. In response, Mr. W testified that he told them he would leave because he needed to start his life. That brought an abrupt end to the discussion that evening.

[273] Finally, the following day, Mr. W testified that F spoke to him again. She told him they had completed the basement, and because of that, he could not say he was leaving. She questioned what they would do if he left, rhetorically asking who would cook for W and the children, given that she had to be away for work in the United States. He testified that he responded, “Why do I not have a life” and began to cry. The discussion ended when W led him away.

[274] When asked by his lawyer why he believed Ms. A and Ms. E falsely accused him of the charges he faces, Mr. W referenced events after his return from Cameroon in January 2016 following his marriage to S. He testified that Ms. E showed him a photograph from his wedding in Cameroon, which F had shared with her. Ms. E encouraged him to contact F to tell her he had gotten married, and he said he would.

[275] In the interim, Mr. W testified that his mother and F were in conflict over his marriage. In response, he told his mother to move in with him (by then he had an apartment of his own in Mississauga). After F learned of this, Mr. W testified that he received a call from Ms. E, who was upset and screaming on the phone, saying that her mother was “Trying to tell me to frame you.” During cross-examination, however, he testified that she told him that F was “Trying to get us to frame you.” During that call, he testified that Ms. E encouraged him to call F and “tell her what you have to.”

[276] After that, Mr. W testified that he stopped speaking with Ms. E and her brother, who kept calling and begging him to call their parents. Later, during his direct examination, he referenced his mother receiving a call while he was at her residence and speaking to W on the phone. After his mother hung up the phone, he testified she said, “They are going to frame you.”

[277] Asked why F would want to frame him, Mr. W testified that she is the authority in the family, does not take well to those who challenge her, and that no one questions her because of that, including his mother. He testified that when people dared to challenge her, she would not respond well and say, “I'll send you back to Cameroon; I know how you came into Canada.”

[278] Asked why F would have such strong feelings about who he chose to marry, Mr. W testified that he did not think that was her real motivation. He instead testified to believing that she only used the excuse of finding him a better bride to delay his departure from the E house so that he would continue to attend to the household chores and the cooking (his third stated reason for the breakdown of his relationship with F).

[279] During cross-examination, however, Mr. W acknowledged that he had already been away at college for two years by the time of his 2014 conversation with F about getting married. (By the time of his wedding, it had been over three years.) By then, the only child remaining at the E home was F and W’s youngest son. Further, Mr. W had testified that he only returned sporadically during school holidays.

[280] Given all this, Mr. W conceded that he had not been at the house for years by then to cook for W and the children. As a result, he acknowledged that F not wanting him to get married could not have had anything to do with him remaining at the house to do the cooking.

Ms. A's abortion

[281] Mr. W testified that he did not accompany Ms. A on March 12, 2012, when she attended a clinic to have an abortion, nor did he know about it until he spoke with his lawyer. Further, he denied ever attending any such clinic with Ms. A at any point in time.

[282] During cross-examination, Mr. W testified that he could not have accompanied Ms. A that day because, at that time, he was helping F and W’s youngest son with his paper route at F's request.

[283] Mr. W testified that he had no idea why Ms. A would note on the intake form at the clinic that he had accompanied her that day or describe him as her “brother.” He denied being the father of Ms. A's baby or buying her a pregnancy test, testifying that he did not even know what a pregnancy test was.

Text messages

[284] Mr. W testified that the text message he sent to Ms. E on June 30, 2015 concerned them having to pray additional novenas at her mother's insistence. He explained the reference to being “with S now” resulted from him needing to complete the novenas with Ms. E before he left for Cameroon to get married. He testified that he had to finish the novenas with Ms. E before leaving as he was not planning on returning to the E home upon his return. Further, when he wrote “to end it with you,” he testified that he was referring to the specific novena they were in the middle of at the time and still had to complete.

[285] As noted above, Mr. W acknowledged that the reference to “they” in that text message concerned spirits. He maintained that was something he told the children at F's insistence so that they would agree to pray with him.

[286] Mr. W also testified concerning the text messages he exchanged with Ms. E on July 28, 2015. Initially, he testified that Ms. E had been complaining about headaches, and F had required them to perform specific novena prayers in response before she returned to school. He testified that Ms. E was upset about this because the novena prayers were very long, and she would have preferred doing other things with her time.

[287] Mr. W testified that the text message in which Ms. E wrote, “This is the kind of stuff that will make people kill themselves,” did not make sense to him, so he called her on the phone to talk about it. During that call, he encouraged her to tell her mother what she meant by that text, and she began screaming. He testified that she referred to grievances she had with Ms. A, particularly her father favouring Ms. A, and nothing changing in that regard despite their prayers. He testified that her frustration stemmed from being required to carry out these very long prayers despite them not having any effect. It was that frustration, he testified, that he understood to be the motivation for reference to suicide.

[288] Given the seriousness of the threat, Mr. W testified that the next day he had a three-way call with Ms. E and her mother. He testified that during that call, F said Ms. A was using “voodoo” to control W. And she told Ms. E not to worry, that she would take care of it, that it was in “God's hands,” and to continue with the prayers.

The September 10, 2016 email

[289] According to Mr. W, he sent the September 10, 2016 email after Ms. E and her older brother reached out to him, encouraging him to call their parents. His uncle, the priest, also encouraged him to do so to calm the whole situation. In contrast, he later testified that his uncle “instructed,” “pressured,” and “forced” him to send it. Although he resisted doing so for months, he testified to finally relenting to his uncle because he felt he had no choice.

[290] During his re-direct examination, Mr. W offered a further reason for sending the email when he did. For the first time, he testified to sending it when he did because that same day, his mother called him and told him that F had called her and said she was going to kill him, that he should go to Cameroon, and that otherwise, she will come and kill him wherever he is.

[291] Mr. W testified that in his email, when he referenced “spiritual attacks,” “fighting a spiritual battle,” and “almost losing his life,” he was referring to everything he had endured in the E home. That included the household chores, cooking, praying with others on top of his own prayers, and mediating the many conflicts between various family members. He also referenced developing food poisoning and ending up in the hospital after F insisted that he “test” some meat W's family had given them. Combined with his responsibilities at work, he testified that he was not getting much sleep, had developed high blood pressure, and needed some rest. He testified that all that led him to say that he was risking his life and fighting for the family while living at the E residence.

[292] Asked what he was apologizing for in his September 10, 2016 email, Mr. W testified that he was referring to “The way in which I left the house” because he did not inform F and W that he was leaving and just packed and left. Additionally, he referenced his decision to marry over F's objections. Finally, he also mentioned F's brother, T M, calling to say he would kill him, which he took seriously. Mr. W insisted that it was only these things for which he offered his apology in the email, begged for the E family's forgiveness, and described himself as “a sinner.”

[293] Concerning the death threat, Mr. W testified that Mr. M had made it during a phone call to him and repeated it during subsequent phone calls with his mother and one of his brothers. He testified that the impetus for the threats was his effort to collect about $1000 from Mr. M that S, then his girlfriend, had loaned to Mr. M while they were in Cameroon and that he had refused to repay. At the time, he testified that Mr. M was living in Germany but returning to Cameroon for business. Mr. W testified that he wrote what he did about Mr. M because he took the threat seriously and thought what he wrote would get back to him.

[294] Mr. W testified that after he sent the email, he severed all links with the E family and terminated the email account from which he sent it. As a result, he testified that he never received W’s responding email. Mr. W insisted that he only learned about that email when his lawyer brought it to his attention.

[295] When he sent his email, Mr. W testified that he had not heard that Ms. E was making accusations against him, or that she was planning on going to the police. He testified that he first learned about her allegations when he met with police.

II. SIMILAR FACT RULING

[296] After the evidence at trial was complete, the Crown applied, with notice to Mr. W, for a ruling that the evidence of the complainants is admissible as similar fact evidence between the counts relating to each of them. Mr. W opposed the Crown's application.

1. Governing Principles

[297] When an accused faces multiple charges in an indictment involving allegations by different complainants, evidence relating to the counts concerning one complainant can generally not be used to prove the counts relating to the other complainant, and vice-versa: see David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 101. That rule flows from the limits the law imposes on the Crown's ability to adduce evidence concerning extrinsic acts of discreditable conduct by an accused: see R. v. Tsigirlash, 2019 ONCA 650, at paras. 23-26.

[298] Evidence tending to show an accused is of bad character or the type of person likely to commit the offence(s) charged is presumptively inadmissible. Such evidence can occasion two kinds of prejudice. The first is moral prejudice, especially where the evidence is of extrinsic acts of misconduct that are more reprehensible than the offence(s) charged and thus more likely to lead to a conviction based on an improper inference. The second is reasoning prejudice, which involves the potential distraction of the jury from its proper focus on the offence(s) charged: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 140, 144.

[299] However, the prohibition against admitting evidence of extrinsic misconduct (“similar fact evidence”) is not absolute. As Binnie J. remarked in Handy, at para. 41, “an issue may arise in the trial of the offence charged to which evidence of previous misconduct may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse.”

[300] The law permits the admission of extrinsic misconduct evidence concerning the accused if the Crown establishes, on a balance of probabilities, that in the context of the specific case, the probative value of the evidence concerning a particular issue outweighs its prejudicial effect: see Handy, at para. 55; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 42. In other words, an accused's uncharged discreditable conduct is “unusually and exceptionally” capable of admission “if it survives the rigours of balancing probative value against prejudice”: Handy, at para. 64.

[301] In assessing probative value, it is necessary to consider the degree to which the evidence is relevant to the material issues in the case and the strength of the potential inference(s) that the evidence is logically capable of supporting: see Handy, at para. 26; R. v. Robertson, 1987 CanLII 61 (SCC), [1987] 1 S.C.R. 918, at para. 43.

[302] As a result, the probative value assessment does not occur in a vacuum. Instead, to have probative value, the evidence must be relevant to a material issue in the case, and the inference that the evidence invites must be compelling enough to have at least some degree of influence in its determination. In short, the proposed evidence must have some bearing upon the live issue(s) in the case: see Handy, at para. 73.

[303] In many cases, including this one, the similarity between the offence(s) charged and the extrinsic misconduct evidence supplies the potential source of its probative value. That is because, at a certain point, the circumstances may be so similar that they defy coincidence or some other innocent explanation. Accordingly, the Supreme Court has recognized the connection (or nexus) between the prior discreditable conduct and the offence(s) charged as the principal driver of probative value in such cases: see Handy, at para. 76.

[304] When assessing the connections, the relevant considerations include the proximity in time of the similar acts, similarity in detail, the number of occurrences of similar acts, the circumstances surrounding or relating to the similar acts, any distinctive features and intervening events, or anything that supports or rebuts the underlying unity of the similar acts: see Handy, at paras. 81-84.

[305] Additionally, given the improbability of coincidence from which similar acts derive their cogency, collusion — when present — can serve to refute the premise upon which the admissibility of the proposed evidence depends: see Handy, at para. 110. In other words, “Collusion, by offering an alternative explanation for the 'coincidence' of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility.”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 40.

[306] Given this, where there is evidence of collusion or an “air of reality” to its alleged existence, the Crown must establish, on a balance of probabilities, that the evidence of similar acts is untainted by collusion as a precondition to the evidence being ruled admissible: see Handy, at paras. 110-113.

[307] Collusion can arise not only when similar fact witnesses deliberately come together to concoct evidence, but also when they have shared their accounts in a way that compromises the independence of their respective testimony. The cases refer to the former as “actual collusion” and the latter as “unconscious collusion:” see R. v. Wilkinson, 2017 ONCA 756, 356 CCC (3d) 314, at paras. 29-45. The Court of Appeal has instructed that courts must “treat actual and unconscious collusion in the same manner at the admissibility stage.”: Wilkinson, at para. 45.

2. Positions of the Parties

[308] On behalf of the Crown, Ms. Skoropada submits that the evidence of each complainant is relevant and highly probative to the charges Mr. W faces concerning the other complainant. Although Ms. Skoropada identified various issues to which she submits the evidence bears, they all boil down to the actus reus of the offences charged. More particularly, they concern credibility— whether Mr. W sexually abused the complainants, as they each allege, or whether his denials are credible.

[309] Ms. Skoropada contends that the probative value of the proposed evidence derives from the improbability that the complainants would describe being enticed in similar circumstances and through similar means into enduring sexual abuse that shares so many parallels unless it, in fact, occurred as they each claim.

[310] Further, Ms. Skoropada argued the potential probative value of the evidence is in no way diminished by the possibility of collusion. On the evidence, the complainants were estranged from one another and had not spoken in years before each independently reported their allegations to the police. Further, there is no evidentiary foundation for concerns that F or W shared information regarding their respective allegations between the complainants.

[311] Finally, Ms. Skoropada submits that the proposed evidence raises neither moral nor reasoning prejudice concerns because this is a judge-alone trial. Ultimately, Ms. Skoropada argued that the evidence is highly probative, carries no risk of prejudice, and should be ruled admissible.

[312] On behalf of Mr. W, Mr. Kopman did not dispute Ms. Skoropada's description of the law, including her contention that prejudice is not an operative concern because this is a judge-alone trial. Instead, he advanced two principal arguments in opposing the Crown's application.

[313] First, Mr. Kopman challenged the probative value of the proposed evidence. In that regard, while acknowledging at least one unique similarity between the complainants' respective accounts (i.e., the “box” and “container” incidents), he contended that, otherwise, most of the “similarities” are rather generic to offences of the kind charged.

[314] Additionally, Mr. Kopman emphasized the dissimilarities. He noted the very different relationships between Mr. W and both complainants. He emphasized differences in what each claim precipitated them to pray with him, differences in the types of sexual acts each alleged, and their differing accounts concerning whether Mr. W ejaculated. Further, Mr. Kopman argued there is little temporal overlap in the events they describe. All of this, Mr. Kopman argued, detracts from the probative value of the evidence the Crown seeks to use across counts.

[315] Second, Mr. Kopman argued that there is an air of reality concerning collusion. He argued that it strains credulity that despite living under the same roof during the alleged sexual abuse and being so close in age, the complainants never spoke with one another concerning the experiences they each allege involving Mr. W.

[316] Given this, he argued it was incumbent on the Crown to disprove collusion, which it failed to do because it never called F as a witness. This was despite the centrality of her role in this case, given that both complainants testified that she was the first person to whom they disclosed the sexual abuse they allege Mr. W perpetrated against them and his evidence concerning the threats she made to him.

[317] Ultimately, Mr. Kopman argued that the Crown had not rebutted the presumption of inadmissibility concerning the proposed similar fact evidence, and that the court should rule it inadmissible.

3. Analysis

[318] With the governing principles and the parties' competing positions summarized, I turn to applying the law to the circumstances of this case.

[319] As Handy instructs, the starting point in the analysis is to identify the probative value of the proposed similar fact evidence to an issue in question. This is informed by “the facts alleged in the charge and the defences advanced or reasonably anticipated”: Handy, at para. 74.

[320] The critical issue in this case is whether the events that are the subject matter of the charges occurred (the actus reus). There are material differences between the evidence of the Crown's witnesses, especially that of the two complainants, and Mr. W's testimony. Whether the events alleged occurred thus turns on questions of credibility. The Crown and the Defence each urge the court to accept the evidence they proffered and reject that offered by the other side as incredible.

[321] The potential probative value of the proposed similar fact evidence stems from the improbability of the complainants' respective accounts sharing so many similarities unless Mr. W did the things each of them claims. In short, if he did not victimize each as they alleged, then why would their descriptions of how they came to be sexually abused by him and the nature of that abuse they each describe be so similar?

[322] Given the above, this is a case in which the connectedness factors enumerated in Handy require careful consideration when assessing the probative value of the proposed evidence.

Proximity in time of similar acts

[323] The sexual abuse alleged by the two complainants was relatively proximate in time. Ms. A described being subject to sexual abuse by Mr. W starting in late 2009 or early 2010, and continuing until the summer of 2014. Although Ms. E testified that the abuse she endured commenced at the end of 2010 or the beginning of 2011, she described it stopping for a few years after the “container” incident in the fall of 2011, before it resumed and escalated in the summer of 2014. The last instance, according to her, took place in November 2015.

[324] Accordingly, if believed, the similar fact evidence of each complainant has a relatively strong temporal connection that enhances its probative value. Unlike situations where the similar fact evidence is so removed in time that the possibility of a change in character could detract from the cogency of the evidence (Handy, at para. 122), concerns of that nature are not operative in this case.

Similarity in acts, surrounding circumstances, and any distinctive features

[325] There are similarities and differences in the sexual acts alleged by each complainant. Ms. A alleged a single act of digital penetration and repeated acts of vaginal and anal intercourse. She testified that on each occasion, Mr. W removed his pants and underwear before engaging in intercourse and always ejaculated onto her. Ms. A testified that the intercourse usually lasted between five and ten minutes.

[326] Ms. E alleged the abuse began with sexual touching involving a crucifix and initially escalated to a single act of digital penetration. The abuse then ceased for a few years. When it resumed, Ms. E alleged it included digital penetration, kissing, oral sex, and repeated acts of vaginal intercourse. Unlike Ms. A, Ms. E testified that Mr. W always wore his boxer shorts during intercourse and that she never saw any signs of ejaculate. However, like Ms. A, Ms. E testified that the intercourse usually lasted between five and ten minutes.

[327] The sexual acts alleged by each complainant that are similar, digital penetration and vaginal intercourse, are rather generic to offences of the nature charged in this case. The only similarity in the sexual acts described by each complainant is that sexual intercourse usually lasted between five and ten minutes.

[328] To be sure, where charges of a sexual nature are involved, similarities between the acts themselves are rarely the driver of probative value. The surrounding circumstances and any distinctive unifying features are far more significant considerations. Several distinctive aspects of the complainants' accounts concerning the surrounding circumstances bear such strong similarities that they are strongly unifying features.

[329] First, both complainants described Mr. W holding himself out as a religious authority with spiritual gifts or powers and using that to justify holding private prayer sessions with each of them in his bedroom to help cure them of ailments they had. In the case of Ms. A, this involved the problems with her eye, and with Ms. E, her migraine headaches.

[330] Second, the complainants both testified concerning how Mr. W escalated these prayer sessions into acts of sexual abuse by claiming that the sexual acts were necessary to redress something that was spiritually amiss with them. In the case of Ms. A, he told her that the sexual acts were required to heal “whatever is wrong with you.” And, with Ms. E, he eventually told her that she was “cursed.”

[331] Third, the complainants were both younger than Mr. W: three years in the case of Ms. A, and four years in the case of Ms. E. Ms. A was 14 when the acts of sexual abuse began, and Ms. E was 13 or 14. After that, the abuse persisted throughout the complainants’ teen years, finally ending for them at ages 18 and 19, respectively.

[332] Fourth, when the abuse commenced and for much of the time that it continued, each complainant lived in the same residence as Mr. W, where the adults in the household revered him as a religious and spiritual authority.

[333] Fifth, the complainants testified to how Mr. W used euphemisms to describe and thereby camouflage sexual abuse as a form of spiritual therapy. For example, in the case of Ms. A, using the terms “check,” “checked,” and “checking,” and with Ms. E, “pray,” “praying,” and “prayer.”

[334] Sixth, each complainant described the sexual abuse usually occurring in Mr. W's bedroom, late at night when everyone else was in bed, or while they were alone in the house with Mr. W. He would text or message them to come to his room to be “checked” or to “pray,” and they would comply.

[335] Seventh, the complainants each testified that Mr. W initially told them there would be a certain required number of “checks” or “prayers.” However, each described how, even after the number he specified had arrived, Mr. W would insist it had to continue and claim further instances were needed.

[336] Eighth, the complainants both testified that when they resisted Mr. W's invitations to be “checked” or to “pray,” or if they questioned the need to continue, he would pressure them to carry on by claiming that he was only doing it to help them, that it hurt him and exacted a toll on his health. At the same time, if they did not readily comply, he would tell them that this, too, was jeopardizing his health and could bring about his death.

[337] Finally, and arguably most distinctively, each complainant described an experience so peculiar and unique, with Ms. A the “box incident” and for Ms. E the “container incident,” that these events constitute “a unique trademark or signature,” which can be sufficient, on its own, to render the evidence “highly probative and admissible:” R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 45.

[338] In summary, the similarities in the acts alleged, the strong parallels in the circumstances preceding and surrounding those acts, and the distinctiveness of the “box” and “container” incidents, when combined, imbue the similar fact evidence the Crown seeks to have admitted across counts with significant probative value.

Number of occurrences of similar acts

[339] Although Mr. W only faces three charges relating to each of the complainants, during their evidence, both described enduring repeated acts of sexual abuse over periods that stretched on for years. If believed, there would have been hundreds of incidents.

[340] The circumstances involve far more than a single similar act, which might be viewed as an isolated occurrence and detract from its potential probative value. Instead, if believed, the repetition of the acts involved could support an inference that Mr. W engaged in a situation-specific course of behaviour to carry out the alleged offences. In other words, he employed a system or had a modus operandi.

Intervening events

[341] There are no intervening events between the acts alleged by each complainant that could undermine the probative value of the proposed evidence.

Collusion

[342] Collusion, actual or unconscious, would undermine the probative value of the similar fact evidence. After all, if the various similarities resulted from collusion, then the driver of their probative value, the improbability of coincidence, would be entirely undermined. However, there is no evidence of collusion or an air of reality to its alleged existence in this case.

[343] By all accounts, including that of Mr. W, although they lived under the same roof at the E residence while much of the sexual abuse was allegedly occurring, Ms. E and Ms. A were estranged. Despite living together and being close in age, they were not on speaking terms, let alone confiding in one another. The distance between them only grew once Ms. A left for university in the fall of 2013 and widened further when Ms. E did the same the following year.

[344] Based on uncontradicted evidence, they never spoke before their respective disclosures to F and their statements to the police. After their long estrangement, they only reconnected for the first time in April 2018 during a family gathering, and they did not discuss details about their respective experiences during that brief meeting.

[345] Nor is there evidence suggesting there may have been unconscious collusion because F or W shared information between Ms. A and Ms. E regarding one another’s allegations. According to Ms. A and Ms. E, their disclosures to F did not include any details. Although in the case of Ms. E, given what her mother told police, she must have told her more than she remembered, as she readily conceded, there is no evidence that F shared any information between them. Similarly, the complainants both testified that they did not share details with W, who confirmed as much during his testimony.

[346] Finally, Ms. E spoke to the police in mid-September 2016, who told her parents not to discuss the allegations with anyone. W testified that they followed that instruction. That was months before Ms. A's disclosure to F that Christmas, and her subsequent police statement in January 2017.

[347] There is no evidence of collusion, let alone any air of reality to its existence on this record. Therefore, concerns about collusion supply no bar to admissibility.

Probative value vs. Prejudicial Effect

[348] As explained, the proposed similar fact evidence has considerable probative value regarding the central question in this case: whether Mr. W sexually abused the complainants as each alleges.

[349] Because this is a judge-alone trial and a count-to-count similar fact application, there can be little concern about moral or reasoning prejudice. The evidence that is the subject matter of the application is already before the court, and the court’s ruling will only affect its use. Judges are presumed to know the law and the appropriate and impermissible uses of evidence: see R. v. B. (R.T.), 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 27-31; R. v. J.H., 2018 ONCA 245, at paras. 23-24.

Conclusion

[350] The similar fact evidence is admissible given that its significant probative value outweighs any potential risk of prejudice. Therefore, the court will consider the evidence of each complainant when assessing whether the Crown has proven the charges against Mr. W beyond a reasonable doubt on the counts relating to the other complainant.

III. ANALYSIS AND FINDINGS

[351] This part will assess the evidence at trial and make the findings necessary to determine whether the Crown has proven the essential elements of the charges Mr. W faces beyond a reasonable doubt.

1. The Evidence of Mr. W

[352] It is sensible to begin with Mr. W's evidence. He testified to never engaging in sexual activity of any kind with either complainant. On his account, he had a sibling-like relationship with both complainants. Although Mr. W acknowledged providing Bible verses to Ms. A and speaking to her about them, as well as praying with Ms. E, he maintained that he only ever did these things at F's insistence. Mr. W denied ever being in his bedroom with Ms. A. And while he acknowledged praying in his room with Ms. E, he insisted that praying was all they ever did. He implied that he would never have had an opportunity to do the things to Ms. E in his bedroom that she alleges, testifying that they always left the door open and that someone else was always in the downstairs living area watching television or playing video games. Further, Mr. W denied that Ms. E ever visited him by herself when he lived in Welland, let alone that they engaged in sexual activity there or anywhere else.

[353] Recognizing the importance of never shifting the burden of proof to an accused person, and since Mr. W testified in his defence, I will follow the analytical framework suggested by the Supreme Court of Canada in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 28.

[354] Accordingly, if I believe Mr. W's evidence that he never had sexual contact with either complainant, he is entitled to be found not guilty of the charges he faces.

[355] Alternatively, even if, after carefully considering his testimony, I do not believe him, I must still consider whether his evidence leaves me with a reasonable doubt concerning any of the essential elements of the charges. If it does, I must find him not guilty of any such charge(s).

[356] Finally, even if I do not believe Mr. W and his evidence does not leave me with a reasonable doubt concerning any of the essential elements, I must still consider the balance of the evidence that I do accept in deciding whether the Crown has proven each of the charges against Mr. W beyond a reasonable doubt.

[357] After giving Mr. W's testimony close and careful consideration, I do not believe his evidence that he never engaged in sexual activity of any kind with either complainant. Nor does his evidence, either alone or when considered along with all the other evidence, leave me with a reasonable doubt concerning that critical issue.

[358] There are a few reasons why I have come to these conclusions concerning Mr. W's evidence.

Internal inconsistencies

[359] First, Mr. W's evidence suffered from numerous internal inconsistencies. During his testimony, Mr. W would unreservedly assert things and later, just as confidently, make entirely contradictory claims. These shifts in his testimony sometimes occurred when he appeared to recognize that his earlier evidence was unhelpful to him. He would respond by saying something entirely at odds with what he had said earlier, or by adding new and important details that had previously gone unmentioned. There are numerous examples of these shortcomings in Mr. W's testimony. A few of the more significant examples deserve mention.

[360] Initially, Mr. W testified to praying with Ms. A at F's insistence to address concerns about her “controlling” W. However, during cross-examination, he testified that he never prayed with Ms. A and only provided her with Bible verses and assigned her novenas to pray as F directed. With the novenas, Mr. W claimed he monitored Ms. A to ensure she did them but struggled to explain how he would, given his insistence that he did not pray them with her.

[361] Mr. W initially testified that he never told members of the E family that he could communicate with God or spirits. However, during cross-examination, he changed his evidence while being questioned concerning his June 30, 2015 text exchange with Ms. E, in which he seems to refer to communicating with spirits. For the first time after many days of evidence, he testified that F left the children with the impression that he could communicate with spirits, and that she instructed him to tell the children as much to ensure they prayed with him. This was because they were often reluctant to do so. He testified that he did as she said, without acknowledging his earlier contradictory testimony.

[362] Additionally, Mr. W initially testified that he did not believe in “spiritual attacks.” (Recall that Ms. E claimed that Mr. W repeatedly made mention of these.) Near the end of his testimony, Mr. W eventually testified that he believed spiritual attacks had been responsible for his childhood ailment. However, he testified that he did not think they continued after he regained his ability to walk.

[363] There were many other internal inconsistencies in Mr. W's testimony. Some of these changes in Mr. W's evidence could stem from him remembering further details as his testimony unfolded, given that he was testifying about events in the distant past. However, many of these did not concern minor details. They related to matters that, if true, he would remember with some degree of consistency, like those noted above.

Illogical and unbelievable

[364] The second significant deficiency with Mr. W's evidence was that often, it was illogical and simply unbelievable. Some examples to illustrate the shortcomings of this nature are warranted.

[365] First, despite testifying that he had a very close and sibling-like relationship with Ms. E and confided in her about his love life, he insisted that he shut down any mention by her of the boy she liked and threatened to tell her mother about it. Given their very close relationship, as evidenced by the text messages they exchanged in 2015 that became exhibits at trial, I find that difficult to believe.

[366] Second, he testified that when he prayed with Ms. E in his bedroom, someone was always watching TV or playing video games in the downstairs living area. I find it impossible to believe that that was always the case.

[367] Third, Mr. W initially gave evidence that when Ms. E came to his room to retrieve the Saint Philomena Oil, she began removing her top with him still in the room rather than just taking the oil from him, which caused him to leave the room immediately. The idea of Ms. E removing her top makes no sense if she and Mr. W had the entirely platonic relationship he claimed.

[368] Fourth, despite living in the residence with Ms. A for nearly five years, Mr. W maintained that there was never a single occasion when they were there together alone. This claim strains credulity.

[369] Finally, at a point in time when he would have been almost 20 years old, Mr. W insisted that he did not know what a pregnancy test was. Like many aspects of Mr. W’s testimony, I also find that very hard to accept.

Irreconcilable with the text messages and email

[370] Lastly, I cannot credit Mr. W's evidence because I cannot reconcile it with the text messages that he exchanged with Ms. E in 2015, and the email he sent to W E on September 10, 2016.

[371] Mr. W testified that the text message, in which he referred to Ms. E having to “pray” with him and asking her not to get mad about it, concerned them having to pray lengthy novenas together. According to Mr. W, Ms. E's reluctance, as evidenced by the texts she sent in response, stemmed from her not wanting to do so.

[372] However, if that were true, one would expect at least some reference either to “novenas” or “F” in the many texts they exchanged in 2015 that became exhibits at trial. Something like, “Well, that novena has nine parts, and we've only finished seven.” Or “I know you don't want to do it, but your mother insists.” Yet, there are no references to novenas or F at any point.

[373] Instead, based on some of the things Mr. W wrote (for example, “to end it with u”) and Ms. E's responses in which she expressed sheer exasperation and hopelessness and referred to ending her life, it is readily apparent that they were discussing something far more ominous than just prayer.

[374] Similar concerns arise from Mr. W's testimony concerning his email to W E. It is impossible to reconcile his explanation for the apology email with its contents. At trial, he testified that he was apologizing for three things in the email. How he left the house, marrying over F's objections, and T M threatening to kill him. Although the first two could conceivably justify an apology, the third hardly would; if anything, on Mr. W's account of that grievance, Mr. M should have been apologizing to him. More critically, I am hard-pressed to understand how any of these things could conceivably lead Mr. W to refer to himself as a “sin[n]er” in the context of what he claimed to be apologizing for.

[375] Nor can I reconcile his references in the email to “spiritual attack[s],” almost losing his life “fighting [a] spiritual battle,” that he came to “help and fight spiritual things in the family that [were] trying to end the family,” with his explanations for writing these things. These comments seem far removed from the trials and tribulations he described enduring at the E home, which he claimed to be referring to. Importantly, they are far more in keeping with what Ms. E testified Mr. W repeatedly said to her to justify and continue the sexual abuse.

Summary

[376] In summary, I do not believe Mr. W. For the reasons noted, I am of the view that he is not a credible witness, and his evidence, either standing alone or considered along with the other evidence, does not leave me with a reasonable doubt concerning any of the essential elements of the charges he faces.

2. The Evidence of Ms. A and Ms. E

[377] The complainants, Ms. A and Ms. E, were the key witnesses for the Crown concerning the central issue in this case: whether Mr. W subjected them to sexual abuse throughout much of their teenage years.

[378] I was similarly impressed by the evidence of both complainants. They presented as intelligent, honest, and even-handed witnesses who did their best to describe their traumatic experiences from many years ago fairly and accurately.

[379] Ultimately, I believe Ms. A and Ms. E.

[380] In accepting their evidence, I have carefully considered those aspects of their testimony that could be said to detract from the credibility and reliability of their evidence. I will explain why, after taking these matters into account, I nevertheless believe them.

Ms. A's evidence

[381] Several aspects of Ms. A's evidence could reasonably be construed as detracting from her overall credibility and reliability as a witness.

[382] First, Ms. A could not distinctly remember the first instance of sexual intercourse. No doubt, one could question how that could be: if her allegations were true, how could the first time it happened not stand out in her mind? However, Ms. A testified that after the abuse began, every instance took place similarly and followed the same “protocol.” Further, the “checkings” happened at least once a week and sometimes multiple times per week over several years. Given the number of occasions and that every time was essentially the same, I accept Ms. A's explanation for why she could not distinguish a memory of the first occasion from her memory of all the other similar instances.

[383] Second, Ms. A's evidence concerning what she knew as to where they were going on the day of her abortion was inconsistent with what she told the police. When questioned about it, Ms. A acknowledged the inconsistency and attributed it to the passage of time. Further, she explained that when they left the house that morning, she did not know exactly where the clinic was because Mr. W had made the arrangements. Given that Ms. A was testifying about events from more than a decade ago, and that she gave her statement to police over six years ago, I accept her explanation for this inconsistency in her evidence.

[384] Third, there are the boxes Ms. A checked in the clinic’s pre-printed intake form the day of her abortion. Where the form asked why she wanted to end her pregnancy, Ms. A checked the boxes for “Bad Timing” and “Age.” She did not mark the box for “Rape or Incest.” By way of explanation, she testified that Mr. W was sitting beside her while she filled out the form. I accept that explanation. Beyond that, based on my overall impression from her evidence, I believe Ms. A still had not come to appreciate that she was the victim of “rape” at the time of the abortion.

[385] Fourth, there was a significant delay in Ms. A’s disclosure of the abuse. Ms. A first told her aunt F about the abuse in late 2016 while back from school for the Christmas break and reported it to the police the following month. In contrast, she readily acknowledged telling her aunt about the incident with Mr. M soon after it happened, which would have been at some point between December 2010 and the summer of 2012.

[386] A delay in disclosure, standing alone, does not give rise to an adverse inference against a complainant's credibility. For this reason, in assessing the credibility of a complainant, the timing of disclosure of an allegation or allegations is simply one circumstance to consider in the context of all the evidence: see R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

[387] During her testimony, Ms. A provided entirely reasonable and credible explanations for why she did not disclose the sexual abuse by Mr. W earlier, and why the situation with Mr. M, who did not have the same status in the E household as Mr. W did at the time, was different. I accept her testimony in that regard.

[388] Finally, Ms. A acknowledged that when she spoke to the police in January 2017, she did not produce any text or Facebook messages between her and Mr. W. She testified that by the time she went to the police, she had changed phones and deleted Mr. W from her Facebook account. As a result, she no longer had access to the text or Facebook messages he sent her when they were both living at the E residence. I accept these explanations for why Ms. A did not have electronic communications to corroborate her testimony some two and one-half years after the abuse ended.

[389] None of the above, standing alone or when taken together, cause me to doubt the credibility of Ms. A's evidence. In accepting her evidence, I have considered two further things that cause me to believe her allegations of abuse unreservedly.

[390] First, there is no conceivable reason why, on the intake form at the clinic completed on March 12, 2012, Ms. A would have noted Mr. W as her emergency contact or that he had accompanied her unless he had. Even crediting Mr. W's evidence, which I cannot, any breakdown in his relationship with F and W was years away. The only reasonable explanation for why Ms. A would have listed him on the form was because Mr. W attended the clinic with her, and the only possible reason he would have gone with her was that he was the person who impregnated her.

[391] Second, although the allegations are bizarre and unusual, I believe Ms. A, in no small part, because Ms. E, an equally intelligent, reasonable, and credible witness, testified to enduring sexual abuse by Mr. W that was strikingly similar in many material respects. Based on the credible evidence at this trial, the only reasonable explanation for why both young women would describe Mr. W subjecting them to sexual abuse for years that shared so many distinctive parallels is because it is true.

[392] For all these reasons, I believe Ms. A and accept her evidence.

Ms. E's evidence

[393] Like with Ms. A, some aspects of Ms. E's evidence could reasonably be construed as detracting from her overall credibility as a witness.

[394] First, Ms. E's description of the first incident of sexual touching was at odds with how she described it in her police statement. Ms. E testified that on the first occasion, which took place in late 2010 or early 2011, Mr. W pressed a crucifix to her bare breasts, nipples, hip, and temples. In contrast, in her September 2016 police statement, she only mentioned her hip. Ms. E readily acknowledged the apparent inconsistency but insisted she was testifying based on her current recollection. These are hardly peripheral details, given that they concern the very first incident of sexual touching: see R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at para. 24. Could Ms. E now remember more details of an event from over a decade ago than when she first spoke to the police seven years ago?

[395] Our “common sense” tells us that the fresher the memory, the fuller and more accurate it is likely to be. To be sure, a dishonest witness may add details absent from their initial recounting because they are not describing something that happened but are just telling a “story” about events they've fabricated. It does not follow, however, that any time a witness adds material details to their account that they omitted on an earlier occasion, they are being deceptive. Memory is malleable. It is far from inconceivable that a person could forget important details of an event in the short term and, after further reflection, come to remember them. More likely, especially when a witness describes similar events from long ago that occurred on different occasions but closely in time, they could transpose details from one occurrence to another without intending to be deceptive.

[396] Given that Ms. E testified that there were two initial “prayer sessions,” during which Mr. W touched a crucifix to her body, I suspect that, over time, in her memory, she transposed events that took place during the second incident to the first. It has now been over a decade since the events at issue. Understandably, Ms. E cannot presently distinguish memories concerning similar but separate incidents that occurred in close temporal proximity so many years ago. While Ms. E's comments to police about the initial incident are likely more accurate than her current recollection, she now genuinely believes that the initial incident involved more than Mr. W only touching the cross to her hip. This inconsistency does not detract from Ms. E's credibility.

[397] Second, there are material inconsistencies between how Ms. E described the incident involving Mr. M and his description. While lying in Mr. W's bed wearing only her top and underwear, she testified that Mr. M entered the bedroom and ripped the covers off her. In contrast, Mr. M testified that when he peered through the bedroom window, he saw Ms. E's top and shorts on the floor. Further, when he entered the bedroom, he testified that her top and shorts were still where he first saw them, and Ms. E held the covers up against her body. He denied removing the covers from her. Recall that Mr. W also testified concerning this incident but described it differently than Ms. E or Mr. M.

[398] I do not believe that either Ms. E or Mr. M misled the court concerning this incident. It is far more likely that, in testifying concerning an event from over 12 years ago, they each remembered it and described it differently. Given its aftermath, which involved a sit-down meeting between Mr. M, Mr. W, H, and F, I cannot accept that this was just a misunderstanding, and that Mr. M twisted a completely innocent event into something sinister.

[399] Mr. M is Mr. W's first cousin; they grew up together. There is no reliable evidence to suggest that Mr. M would have had some motive to falsely accuse Mr. W of behaving inappropriately toward Ms. E, let alone back in 2011, years before Mr. W's alleged falling out with the E family.

[400] In the end, I accept that Mr. M found Ms. E in a state of partial undress in Mr. W's bedroom during this incident. Their conflicting accounts of that incident do not detract from Ms. E's credibility.

[401] Third, it is undoubtedly odd that despite Ms. E describing countless occasions of intercourse with Mr. W, she testified that she never saw any evidence of ejaculation. However, she also testified that he always kept his shorts on during intercourse and pulled away so she could not see what he was doing whenever she looked down. As a result, she could not say one way or another if he wore a condom. I have carefully considered this rather unusual aspect of Ms. E's allegations.

[402] Ms. E testified that the “prayer sessions” involving intercourse began in the summer of 2014. That was long after Mr. W had impregnated Ms. A and her abortion. In the circumstances, it would seem the most likely explanation for why Mr. W kept his shorts on (he never did with Ms. A) was that he wore a condom to avoid getting Ms. E pregnant. Given this, his always keeping his shorts on during intercourse and pulling away so that Ms. E could not see his penis, is understandable. After all, it would be difficult for Mr. W to rationalize what they were doing as something rarefied and divine if he had to wear a condom. The notion that the “spirits” told him to wear a condom would be challenging to sell to Ms. E, even though, at the time, she was still relatively young and naive. As a result, this peculiar aspect of Ms. E's allegations does not detract from her credibility.

[403] Fourth, there is an inconsistency between Ms. E's evidence that after she disclosed the abuse to her mother, she never shared any “graphic details” with her, compared to information that F appeared to be privy to at the time of the police report. Given what F told police, Ms. E must have told her that Mr. W put a pillow over her face, said he needed to have intercourse with her to “get the stuff out of you,” and that some incidents occurred in Welland. When questioned about what her mother told police, Ms. E readily conceded that she must have told her more than she remembered. Considering that Ms. E's disclosure to her mother occurred more than six and a half years before her testimony at trial, her lack of a detailed memory of everything she said to her mother hardly detracts from her credibility.

[404] Finally, there is the delay in disclosure. When Ms. E's mother questioned her about the incident during which Mr. M walked in on her and Mr. W in 2011, she denied anything inappropriate had occurred. Initially, she maintained that position when her mother returned to the topic during the summer of 2016 before finally telling her about it and the subsequent sexual abuse. Ms. E gave a thoughtful and detailed explanation for her delayed disclosure, which was entirely credible. Like many victims of childhood sexual abuse, it took Ms. E time to reach a point where she was ready to speak out about what happened to her.

[405] None of the above, by itself or taken together, causes me to doubt Ms. E's credibility. In accepting her evidence, I have considered two further things that cause me to believe her allegations of abuse unreservedly.

[406] First, there is much support for Ms. E’s account of her relationship with Mr. W in the text messages she exchanged with him in 2015. These texts are consistent with her description of what was occurring between them at that time. The texts in which she writes about taking her own life exhibit the type of hopelessness and desperation that one might reasonably expect of a victim of prolonged sexual abuse facing the prospect of no apparent end to their ongoing ordeal.

[407] Second, like with Ms. A, I believe Ms. E partly because of the striking parallels between their respective experiences. It simply defies coincidence that the two of them would describe enduring such unusual and yet distinctively similar experiences of prolonged sexual abuse by Mr. W unless what they were recounting is true.

[408] For all these reasons, I believe Ms. E and accept her evidence.

3. Charges and Verdicts

[409] With the findings concerning credibility now explained, these reasons turn next to consider the charges and whether the Crown has proven their essential elements beyond a reasonable doubt.

Sexual Interference - Counts 1 and 2

[410] Mr. W faces a charge of sexual interference relating to each complainant contrary to section 151 of the Criminal Code of Canada, R.S.C., 1985, c. C-46. Count 1 relates to Ms. E and the period between November ##, 2010 and December ##, 2012. Count 2 concerns Ms. A and relates to the period between November ##, 2009 and February ##, 2011. The second date specified in both counts is the day before the 16th birthday of each complainant.

[411] To prove an accused is guilty of sexual interference, the Crown must establish each of the following essential elements beyond a reasonable doubt:

1. That the complainant was less than 16 years old at the time;

2. That the accused intentionally touched the complainant, either directly or indirectly; and

3. The touching was for a sexual purpose.

See R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at paras. 51-53; R. v. B.J.T, 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 37.

[412] Given the credibility findings explained above, the Crown has proven each element for sexual interference on both counts beyond a reasonable doubt. As noted, I unreservedly accept the testimony of both complainants. Their evidence leaves me with no reasonable doubt that Mr. W intentionally touched them for a sexual purpose before they turned 16.

[413] Mr. W is guilty of counts 1 and 2.

Sexual Exploitation – Counts 3 and 4

[414] Mr. W faces a charge of sexual exploitation relating to each complainant contrary to section 153(1)(a) of the Criminal Code. Count 3 relates to Ms. E and particularizes the period between December ##, 2012 and December ##, 2014. Count 4 concerns Ms. A and relates to the period between February ##, 2011 and February ##, 2013. The dates in each count encapsulate the periods between their respective 16th and 18th birthdays.

[415] To prove an accused is guilty of sexual exploitation, the Crown must establish each of the following essential elements beyond a reasonable doubt:

1. That the complainant was 16 years or older but under the age of 18 years at the time;

2. That the accused was in a position of trust or authority towards the complainant;

3. That the accused knew, was wilfully blind or reckless to the fact that the complainant was less than 16 years or older but under the age of 18 years;

4. That the accused intentionally touched the complainant, either directly or indirectly; and

5. The touching was for a sexual purpose.

See R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para. 16; R. v. Aird, 2013 ONCA 447, at para. 24.

[416] Given the findings detailed above, I am satisfied beyond a reasonable doubt that during the relevant timeframe, the complainants were between 16 and 18 years of age, that Mr. W intentionally touched them, that he knew their ages when he did so, and that the touching was for a sexual purpose.

[417] The only essential element left unresolved by the credibility findings detailed above is whether Mr. W was “in a position of trust or authority” towards the complainants during the relevant periods.

[418] In Audet, the Supreme Court addressed the meaning of these terms in the context of this offence. It explained that “trust” has its ordinary meaning and captures relationships in which confidence or reliance is placed on a person concerning their qualities or attributes: see Audet, at para. 35. However, the terms “position of trust or authority” in section 153(1) are to be understood in the context of Parliament's objective for enacting the provision: to protect young persons “who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.”: Audet, at para. 36 (italics in original). All the circumstances must be considered, including the age difference between the accused and the young person, the evolution of their relationship, and “above all,” the status of the accused in relation to the young person: see Audet, at para. 38.

[419] Mindful of the Supreme Court's guidance on how to assess whether an accused is “in a position of trust or authority,” given Mr. W's role in the E residence, as described by Ms. A, Ms. E, and Mr. M, I am satisfied beyond a reasonable doubt that he was in a position of trust and authority towards the complainants. He occupied that position from soon after returning to the E home on his own until, at the very least, each complainant left the residence to attend university.

[420] During their testimony, the complainants and Mr. M described the dynamic of the E residence. They testified that in the household, everyone regarded Mr. W as especially religious and spiritual. On their respective accounts, the entire family entrusted him as a guide on such matters, particularly for the children. Beyond that, I also accept their evidence that Mr. W was in a position of authority over the children after he returned to the residence by himself. He was several years older than the complainants, the person who assigned chores to them, and, in the words of W E, his wife's “extended arm” in the home. He effectively occupied a position on par with that of W and F.

[421] Finally, although F and W had greater authority over the children in the home, likely out of pride, during his evidence, W E somewhat downplayed Mr. W's role in the residence and the authority he had over the children. To the extent that his testimony differed from that of the complainants and Mr. M concerning that question, I prefer their evidence.

[422] Based on all the evidence, I am satisfied beyond a reasonable doubt that Mr. W was in a position of trust and authority towards both complainants, at least until they each left for university.

[423] Mr. W is found guilty of counts 3 and 4.

Sexual Assault - Counts 5 and 6

[424] Mr. W faces charges of sexually assaulting each complainant contrary to section 271 of the Criminal Code. Count 5 concerns Ms. E and particularizes the period between November 2010 and the 30th day of November 2015. Count 6 relates to Ms. A and the period between the 1st day of November 2009 and the 31st day of August 2014. The dates in each count encompass the periods during which each complainant describes sexual activity beginning and finally ending, including before and after their 16th birthdays.

[425] To prove an accused is guilty of sexual assault, the Crown must establish each of the following essential elements beyond a reasonable doubt:

1. That the accused touched the complainant directly or indirectly;

2. That the touching was intentional;

3. That the touching took place in circumstances of a sexual nature;

4. That the complainant did not consent to the sexual touching; and

5. That the accused knew, was wilfully blind or was reckless to the fact that the complainant was not consenting to the touching.

See R. v. Ewanchuk, 1999 CanLII 711 (SCC), 1999 SCC 711, [1999] 1 S.C.R. 330, at paras. 24-31, 42-52.

[426] For the period before the complainants turned 16, the Crown is not required to prove the fourth and fifth elements of the offence. Persons under 16 years of age are incapable of consenting to sexual activity: see Criminal Code, ss. 273(2)(b), 150.1(1).[^4]

[427] Given all of this and the findings detailed above, for the very same reasons Mr. W is guilty of the offence of sexual interference involving each complainant, he is also guilty of sexual assault for the sexual touching that occurred before they each turned 16 years of age.

[428] While not essential to returning verdicts on counts 5 and 6, it is sensible to continue and consider whether the Crown has established beyond a reasonable doubt that the complainants did not consent to sexual activity with Mr. W after they turned 16 and whether Mr. W had the requisite mens rea concerning their lack of consent. Deciding that will be relevant on the question of whether to stay the sexual interference or sexual assault convictions under R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[429] The Criminal Code defines “consent” as “the voluntary agreement of the complainant to engage in the sexual activity in question.”: s. 273.1(1). However, even if the complainant ostensibly consented, sections 265(3) and 273.1(2) prescribe circumstances in which consent is not possible: see R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 4. Consent is vitiated if secured through force, threats, fraud, the exercise of authority, or the abuse of a position of trust, power, or authority: see s. 265(3) and 273.1(2)(c).

[430] Applying these principles to the complainants' evidence concerning the period after they each turned 16, I am satisfied beyond a reasonable doubt that neither consented to sexual activity with Mr. W and that he either knew or was reckless to the fact that they were not consenting.

[431] Ms. E testified that she never wanted Mr. W to touch her sexually and that she repeatedly told him as much in the text messages she exchanged with him. Nevertheless, she acquiesced in sexual activity with him because he pressured her to comply. In the moment, she testified that he would ask if he could proceed but never detail what he planned on doing. Further, at such times, if she hesitated, he would scold her, express his displeasure, and make it clear that refusing was not, in fact, an option. In these circumstances, I am satisfied beyond a reasonable doubt that Ms. E never voluntarily agreed to engage in sexual activity with Mr. W.

[432] Further, I am satisfied beyond a reasonable doubt that Mr. W either knew that Ms. E was not consenting or, at a minimum, was reckless about her lack of consent. In all the circumstances, Mr. W would have appreciated that Ms. E was not voluntarily agreeing to engage in sex with him. Nevertheless, he persisted despite undoubtedly recognizing the risk she was not consenting because he was indifferent to what she wanted: see Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at para. 16.

[433] Given all this, Mr. W is guilty of count 5; he sexually assaulted Ms. E.

[434] Ms. A testified that whenever they engaged in sexual activity, “she hated every second of it.” It was apparent from Ms. A's evidence that she never wanted to engage in sexual activity with Mr. W but only acquiesced to doing so because she felt she had no choice. Further, she testified that Mr. W never asked if she consented and that when she occasionally voiced her objections, he responded that “he had to do it” and just continued. Given this evidence, I am satisfied beyond a reasonable doubt that Ms. A did not consent to sexual activity with Mr. W and that he knew that she was not consenting.

[435] Accordingly, Mr. W is guilty of count 6; he sexually assaulted Ms. A.

CONCLUSION

[436] For all these reasons, Mr. W is found guilty of all six charges in the indictment.

Signed: “J. Stribopoulos J.”

Released: August 29, 2023

COURT FILE NO.: CRIM J(P) 1167/18

DATE: 20230929

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and –

M W

REASONS FOR JUDGMENT

Justice J. Stribopoulos

Released: August 29, 2023

[^1]: A person who is skeptical and refuses to believe something without proof. [^2]: Text messages reproduced as written; all spelling, syntax and grammatical errors are from the originals. [^3]: Email reproduced as written; all spelling, syntax and grammatical errors are from the original. [^4]: There is an exception where the complainant is 14 years of age or older but under the age of 16 years, and the accused is less than five years older than the complainant, provided the accused is “not in a position of trust or authority towards the complainant”: Criminal Code, s. 150.1(2.1). However, the accused bears the burden of establishing the preconditions for that defence: see R. v. Tpson, 1992 ABCA 259, 76 C.C.C. (3d) 142.