SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-22-67

DATE: 20240110

CORRIGENDA: 20240209

ONTARIO

BETWEEN:

HIS MAJESTY THE KING

– and –

J.B.

Defendant

Linsay Weis, for the Crown

Edmund Chan, for the Defendant

HEARD: April 18-22, 2023

REVISED REASONS FOR DECISION

The text of the original Reasons has been corrected with the text of the corrigendum, released February 9, 2024.

CASULLO J.

INTRODUCTION

[1] As a result of a report made by B.B. to police in April of 2021, J.B. is charged with sexual assault contrary to s. 246.1 of the Criminal Code; sexual intercourse with a female under 14 contrary to s. 146.1 of the Criminal Code; sexual interference contrary to s. 151 of the Criminal Code; indecent assault contrary to s. 149 of the Criminal Code; incest contrary to s. 150 of the Criminal Code; and invitation to sexual touching contrary to s. 152 of the Criminal Code.

[2] The Crown’s only witness was the complainant, B.B.[^1].

[3] J.B. testified in his defence. The defence also called K.B., B.B.’s twin brother.

[4] The essential elements of the offences concerning identification, that B.B. was under 16 years of age at all material times, and that he is the biological child of J.B. have all been proved beyond a reasonable doubt and are not in issue.

[5] The only real issue is whether the Crown has established beyond a reasonable doubt that the alleged acts occurred. This determination essentially turns on the assessment of the credibility of all three witnesses, particularly J.B. and B.B.

[6] J.B. denies all allegations of sexual contact with B.B.

[7] I have divided these reasons into several sections. After setting out the fundamental principles inimical to all sexual assault trials, I will outline the evidence, followed by my analysis and ending with my conclusion.

FUNDAMENTAL PRINCIPLES

[8] First and foremost, J.B. is presumed innocent until the Crown proves his guilt beyond a reasonable doubt. This means that the Crown must prove each and every element of the offences charged beyond a reasonable doubt. I am not to lose sight of the fact that the burden always remains on the Crown.

[9] What is reasonable doubt? It is a doubt based on reason and common sense that is logically connected to the evidence or the absence of evidence. It is not based on sympathy or prejudice for anyone involved in the trial. Reasonable doubt does not involve proof to an absolute certainty, nor is it proof beyond any reasonable doubt, such as an imaginary or a frivolous doubt: see R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.

[10] Second, although J.B. elected to call evidence at his trial, he is under no obligation to prove anything in this case. Where defence evidence is tendered, I must consider the evidence in its totality when undertaking the ultimate assessment of the case. I am not to base my verdict by choosing between the Crown’s evidence and the accused’s, which would erode the presumption of innocence and the requirement of proof beyond a reasonable doubt: R. v. Vuradin, 2013 SCC 38, [2013] S.C.J. No. 38, at para. 21.

[11] Rather, I am to consider the evidence as a whole and, in the context of that evidence, apply the three-step analysis set out in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at para. 28:

a) If I believe J.B.’s denial of the alleged conduct, then I must acquit, as the Crown will not have established his guilt beyond a reasonable doubt;

b) Even if I do not believe J.B.’s testimony and denial of the alleged conduct, if his evidence raises a reasonable doubt about his guilt, I must acquit; and

c) Finally, even if I am not left in doubt by J.B.’s evidence, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of J.B.’s guilt.

THE EVIDENCE

Uncontroversial Facts

[12] This is a historical case. The charges in the indictment span from June 1981 to June 1989. Thus, witnesses were testifying to events that allegedly occurred over 30 years ago.

[13] J.B. is married to L.B. On June 17, 1975, they welcomed twins, a boy, K.B., and a daughter, T.B. As noted at the outset, T.B. is now B.B. Notwithstanding that the alleged sexual assaults occurred when B.B. was female, I will refer to B.B. in the masculine form throughout these reasons.

[14] Further, all witnesses share the same last name. Thus, for the balance of these reasons I will refer to each of them by their first name to avoid confusion, and no disrespect is to be taken by this measure.

The Crown’s Evidence

B.B.

[15] At the time of trial, B.B. was 48 years old.

[16] Growing up, B.B. lived with his brother and parents. He remembers two homes during his childhood. The first was a townhouse in Malton, Ontario; the second was a bungalow in Lisle, Ontario. J.B. eventually started an addition on this home, although it was never completed.

[17] In Malton, the family unit appears to have been a traditional one, with J.B. working and L.B. managing the family and the home.

[18] Once the family moved to Lisle this changed. While the timelines are not clear, there was evidence that L.B. held at least two jobs there, at a pizza parlour and at a financial institution.

[19] B.B. and K.B. were close as young children, although they began to grow apart once they started high school.

[20] B.B. described for the court an ongoing pattern of sexual abuse by his father, beginning, according to B.B., when he was six years old.

[21] B.B. recounted that that first two occasions happened in the Malton home, when his father was in bed. Each time, as B.B. walked by his bedroom, J.B. called him and asked him to lay on the bed with him. His father slept in the nude. B.B. remained clothed each time.

[22] B.B. started off laying on J.B.’s chest, face-to-face, and J.B. would rub and tickle his back. After rubbing B.B.’s back, J.B. moved B.B. onto his (B.B.’s) side, with B.B. facing him. J.B. then put B.B.’s hand onto his now erect penis. J.B. would squeeze B.B.’s hand multiple times as he “flexed[^2]” his penis.

[23] B.B. could not say for certain when J.B.’s penis became erect, but it was certainly erect by the time J.B. moved B.B.’s hand onto it.

[24] Both events were the same but for where B.B. was placed after J.B. tickled his back. The first time B.B. remembered being moved on to the right side of J.B., and the second time he was moved to the left side of J.B.

[25] B.B. recalled feeling nice at the outset because he enjoyed being tickled. B.B. could not remember whether he or his father spoke any words during these two events. B.B. did not know where his brother or mother were. B.B. also had no memory of how close in time the two events occurred.

[26] B.B. testified that the abuse not only continued after the family moved to Lisle, it got worse.

[27] One of B.B.’s earliest memories after moving to Lisle was when he was seven, and his father would take him to job sites in his big blue contractor van. The blue van was windowless on the sides.

[28] On these occasions, J.B. would ask B.B. if he wanted to drive, and B.B. would sit on J.B.’s lap holding on to the steering wheel. J.B. retained control of the pedals, and likely the steering wheel as well.

[29] With B.B. in position, J.B. would reach his right hand around B.B.’s waist and put it down B.B.’s pants. He used his fingers to rub B.B.’s clitoris and then insert them inside his vagina, wiggling them around inside of him. J.B. typically licked his fingers first. B.B. did not enjoy this, because J.B. would hurt his clitoris and rub his vaginal area raw. Later it was painful when his underwear rubbed against his vagina.

[30] B.B. testified that the sexual assaults in J.B.’s work vans numbered in the hundreds, and happened almost always on the way home, either after a job, or after going to the dump. The assaults unfolded in a similar manner: J.B. would ask B.B. if he wanted to drive, and B.B. would either be on J.B.’s lap, standing between J.B.’s legs, or standing to off to the side, between the steering wheel and the middle console. J.B. would reach into B.B.’s pants, rub his clitoris, then insert his fingers into his vagina.

[31] B.B. recalled that the van assaults started when he was around 7, and continued until he was 13. During this time J.B. was both a general contractor and a hot water heater installer for Ontario Hydro, although B.B. could not recall what in what order those jobs occurred. J.B. would often take B.B. to work with him. J.B. also brought B.B. along to the dump, where they took their garbage because there was no garbage pickup in Lisle.

[32] They assaults started in the blue van, and continued when J.B. got a white van. The white van was also windowless.

[33] As B.B. grew older the nature of the abuse in the vans changed. Twice J.B. took B.B. into the back of the van. He would be sitting on a milk crate or a toolbox, and he would get B.B. to sit in front of him so they were facing one another. J.B. would try to get B.B. to kiss him.

[34] J.B. would then start fondling B.B.’s vagina. On one occasion he exposed his erection, and tried to penetrate B.B. As B.B. described, J.B. picked him up and, holding him at the waist with B.B. facing away from him, pushed B.B. down on top of him. As he pushed B.B. down, J.B. thrust his hips up, trying to put his penis inside of him. B.B.’s vaginal opening was not large enough, and J.B. could not penetrate him.

[35] B.B. testified he was around 8 or 9 years old when this first attempt at penetration happened. It happened a second time not too long afterward. On this occasion J.B. went into the back of the van to sort his tools, after which he sat on his stool, or crate, and called B.B. over. He exposed his penis and had B.B. squeeze it with his hand. J.B. then removed B.B.’s underwear and shorts and tried to penetrate him, but once again B.B.’s vagina was too small. B.B. told his father it was hurting him, and B.B. believes this is why that particular assault stopped.

[36] When asked to describe the nature of the many van assaults, B.B. said it was either J.B. touching his genitals and putting his fingers into his vagina, or it was J.B. having B.B. massage his penis. This happened in the back of the van as just described, and it also happened more frequently when he was “driving” the van or standing off to the side next to the driver’s seat, between the driver’s seat and the centre console.

[37] Any words that were exchanged between B.B. and his father during these assaults do not form part of B.B.’s memory. B.B. does remember that as he got older, he would ask J.B. to stop because he was hurting him. B.B. recalled that J.B. stopped only once when B.B. asked him to. The other times J.B. kept going until he finished doing whatever it was he needed to do.

[38] B.B. actually enjoyed going to work with J.B. – he enjoyed working alongside his father, and learning, for example, how to install tiles so the corners were straight. He had specific responsibilities too, such as taking the electrical pane off the water heaters, and readying the wires for the new water heater to be installed. These work trips happened on PA days, or snow days, and more frequently during the summer, three to four times a week.

[39] When asked why B.B. continued to go to job sites with his father when he was sexually abusing him in the van, B.B. said that at the time, he did not know any different, and he thought J.B. was doing what all dads did. He did not know what was happening, he thought his father was being affectionate. B.B. became emotional at this point, and court recessed to allow him to collect himself.

[40] B.B. recalled another occasion where he was sexually assaulted in the back of the white van. The family was visiting J.B.’s brother in Port Hope or Cobourg. They were spending the night, so there was a mattress in the back of the van. At some point B.B. was not feeling well, so J.B. took him into the van. They lay together on the mattress and J.B. tickled B.B.’s back. J.B. then pushed B.B. off to the side and exposed his erect penis. He put B.B.’s hand on his penis, holding it there while he flexed. B.B. was not sure where K.B. was when this happened, and thought his mother would have been inside with the rest of the adults and family.

[41] The other sexual assaults, which B.B. also numbered in the hundreds, happened inside the house in Lisle. He could not say when the first indoor assault happened, as the indoor assaults overlapped the van assaults, although the van assaults started first. The house was a bungalow, and the bedrooms were all situated at the back of the house. B.B.’s bedroom was directly across from his parents’ bedroom. There was one bathroom for all four to share.

[42] One incident that has resided with B.B. the most, and for which he has flashbacks, was when he was 10 or 11, and he and J.B. were home alone. B.B. does not recall where K.B. or his mother were. J.B. was in his bedroom, lying naked on top of the blankets. He called for B.B. to join him, and B.B. jumped up onto the bed, lying on his back beside J.B. J.B. pulled off whatever B.B. was wearing, including his underwear. He then started rubbing B.B.’s clitoris with his fingers, and had B.B. touch his erect penis. At this point J.B. got on to his knees in front of B.B., lifted B.B.’s legs up into the air such that his ankles were next to J.B.’s shoulders, and tried to penetrate B.B. First, he tried putting his penis in B.B.’s anus, but that did not work. J.B. then succeeded in penetrating B.B.’s vagina with the head of his penis. He pulled out quickly, grabbing his penis and holding it by his belly, which is when B.B. saw ejaculate go on to J.B.’s stomach. J.B. turned away and wiped himself with a towel.

[43] B.B. recalled that this time he asked J.B. to stop because he was hurting him, but J.B. did not stop.

[44] There were many other incidents in the bedroom, beginning with J.B. ticking B.B.’s back, then he would pursue genital touching – either he would touch B.B.’s clitoris and put his fingers in his vagina, or he would have B.B. masturbate him.

[45] B.B. recounted how he and his father would take baths together at the house in Lisle. J.B. would sit with his back against the end of the tub, and B.B. would sit between his legs, his back to his father. J.B. would touch B.B.’s genitals, rub his clitoris, and insert his fingers into his vagina. J.B. never tried to penetrate B.B.’s vagina in the tub. B.B. thinks the tub assaults happened when he was between the ages of 7 and 10 years old.

[46] There were other times in the bathroom when J.B. would sit on the toilet, fully erect, and lift B.B. on top of him and insert his penis in B.B.’s vagina. On these occasions it was only the head of J.B.’s penis that penetrated B.B. B.B. recalled that one time he told his father it hurt, which seems to have excited J.B., because he lifted B.B. off and B.B. could see his ejaculate. These assaults happened when B.B. was between the ages of 9 to 11 years old.

[47] The door was always closed during the washroom assaults.

[48] B.B. testified that he did not know what ejaculation was at that time. But he had heard his mother say that J.B. was circumcised, and when he was around 10 years old, he asked whether men who had been circumcised could squirt out white stuff. And she said yes.

[49] Other assaults happened in rooms in the basement, which had a laundry room, a workshop, a room with the pool table, and the room with the woodstove. These assaults were similar to the van assaults in the back of the van. J.B. would be sitting on something, and have B.B. come over to him. He would pull B.B.’s pants down, and put his hand in B.B.’s underwear, touching his clitoris and putting his fingers inside his vagina. J.B. would also have B.B. masturbate him in the basement. No penetration happened in the basement.

[50] Assaults also took place in the living room at Lisle, starting when B.B. was around 7 years old. J.B. often slept on the couch, and B.B. would often get out of bed in the middle of the night to go to the washroom. When J.B. heard him, he would call B.B. over and assault him on the couch, touching his clitoris and inserting his fingers into his vagina. On one occasion J.B. had oral sex with B.B., applying his tongue and mouth to B.B.’s genitals.

[51] B.B. recalled a time on the couch when J.B. was trying to kiss him in an intimate way. He kept telling B.B. to kiss softer. B.B. told the court he must have been kissing aggressively, but he had never kissed a boy before, so he did not know what he was doing.

[52] B.B. could not say where the rest of the family was during these many assaults. K.B. could have been outside playing, or inside drawing. His mother would leave the house to run errands in town. She would also have to go to Toronto for sympathetic nerve blocks.

[53] B.B. recounted two further incidents of assault, which happened at a cottage the family would go to each summer at Cawaja Beach, around Midland or Penetanguishene. His aunt, L.B.’s sister, rented the cottage each year, inviting L.B. and the kids to join them for two weeks. J.B. would drive them there at the beginning of the two weeks, and pick them up at the end, but he generally returned home to work. Occasionally he would come up for a night on the weekend.

[54] The cottage was small, with two bedrooms. One night, when J.B. was there, he asked B.B. to lay with him in the bedroom. B.B. did so while J.B. stroked his back. He then asked B.B. if he wanted to go to the beach, which B.B. jumped at. K.B. wanted to come as well, but J.B. said it was just he and B.B.

[55] It was evening, around sunset, and the two sat on the beach on a blanket. J.B. had his legs crossed, and he pulled B.B. onto him, with B.B.’s back against his chest. J.B. then wrapped a towel around them, and took B.B.’s bikini bottoms off. His erect penis was exposed, and he tried to have B.B. sit on his penis. There was no penetration, likely because B.B. was still too small – he recalled this event happened when he was around 9 years old. The assault stopped when two people walked past. As they did J.B. pulled B.B. closer and told him not to move. The people walked on, and J.B. said it was time to go.

[56] The second incident at the cottage happened when he and his father were out in a red canoe. B.B. recalled there being a bridge they had to pass under, and the water level being so high that they had to lay down in the canoe to go under the bridge. J.B. was sitting at the rear of the canoe, and B.B. was at the front. J.B. asked B.B. to come over to him. B.B. did, crawling over the seats to get to him. B.B. then stood before his father, with his back towards J.B.’s stomach. J.B. put his hands in B.B.’s underwear, touching his clitoris and putting his fingers into his vagina. B.B. has little other recollection of this assault – he cannot say where they were when it happened. B.B. recalled this assault stopped because a man passed by them in another canoe. Again, J.B. told him not to say anything, and the gentleman moved on.

[57] When B.B. was around 13 years old, he started learning about sex education in school, and he soon realized that what J.B. was doing to him was wrong. B.B. began telling his father that if he did not stop, B.B. would tell his mother. But J.B. did not stop, and eventually B.B. told his mother.

[58] B.B. remembered being in the unfinished addition to the Lisle house when told his mother about what his father was doing to him. He said his mother was shocked at first. B.B. explained that J.B. was touching his vagina with his fingers, and making B.B. touch him. B.B. testified that he was afraid to say anything about J.B. penetrating him – afraid of losing his parents, afraid of losing his mother, afraid of what his mother would think of him.

[59] B.B. remembers L.B. telling him and K.B. to stay in K.B.’s room, which had a heater, while she went to talk to their father. After she spoke with J.B., L.B. came back and told them J.B. did not deny it. The assaults never happened again.

[60] At some point B.B. started seeing a therapist who, after the second session, called the house and left a message to the effect that if someone did not report J.B. to the police, she would. B.B.’s sessions stopped after this, with no one explaining to him why.

[61] Years later, when B.B. was 16, he remembers his mother asking him if J.B. had penetrated him. B.B. lied to his mother and said no. He explained that he was afraid of what his mother would say. In B.B.’s mind, she had stayed with J.B. after learning about the abuse, so he did not want to get in trouble or break up the family by disclosing everything that had happened.

[62] B.B. contacted police in 2021 because through therapy he realized just how much the trauma of what J.B. had one to him was affecting him. B.B. explained to the court that he was tired of carrying the burden of protecting J.B. when no one was protecting him. B.B. was also concerned that J.B. might prey on others.

[63] When asked whether he had ever talked to J.B. about the abuse, B.B. said yes. It would come up mostly when J.B. did something to trigger B.B.

[64] B.B. moved out of the Lisle home when he was 17. In his twenties he moved back in with his mother for a period, while she and J.B. were separated. B.B. appears to have had an off-and-on relationship with his family throughout his adulthood. When he was 21 B.B. came out as a lesbian, and his family disowned him for a time. They reacted similarly when he made the decision to transition from female to male in and around 2013.

[65] At trial B.B.’s relationships with his family were non-existent. The last spate of time he was connected to them was between 2013 and 2018. He had not spoken to K.B. in close to 10 years, and his mother for four years. It was unclear how long it had been since he spoke to his father. Despite being estranged from them, B.B. did communicate with his family via text or email.

[66] Two bundles of emails between B.B. and J.B. were marked as exhibits. The emails were not admitted for the truth of their contents, but rather to provide narrative and context to what the Crown submits are admissions made by J.B. in the emails. The emails are lengthy, and I have included only the pertinent parts.

[67] The first bundle consisted of two emails. The first was from B.B. to his father dated October 1, 2018:

All my life I have begged for your attention. Begged!! I have KEPT YOU OUT OF JAIL, yes ME. I kept you out of jail to save YOUR life in hopes that maybe I could have my dad in my life.

[68] J.B. replied on October 4, 2018:

I do understand your feeling, and wish I could take away all your hurt feelings from things that happened, but I can’t, and I can’t explain what happened years ago either, just that I wasn’t in my right mind, that I do know. All I can say from the bottom of my heart is that I am really very sorry for everything I put you thru, what I do know is that I care for you very much, you are my Son and I never meant to hurt you.

[69] The first email in the second bundle was from J.B. to B.B. on February 21, 2021:

I don’t know what you want any more, I’ve apologized countless times to you verbally and in writing over the past 30 years.

I know you were hurt years ago and it should never have happened, once again I’m very sorry it did. We thought all this was behind all of us and we were to try and become a family again. That is what you always wanted and now where are we, the furthest apart than we ever have been.

[70] B.B. replied on February 25,2021, to both J.B. and L.B.:

I’ve been struggling with (do I call the police on you or do I just tell those who I feel should know because your not on a sex offender list) and that’s why I did what I did. To save mom the grief of putting you in jail and so that I don’t have to live with the burden of keeping your secret anymore.

[71] What B.B. “did” was call the Children’s Aid Society.

[72] J.B. replied on March 2, 2021, on behalf of him and L.B.:

You have always wanted us to be a family and so have we, including [K.B.]. We’re all trying to strive to bring this family back together, not distance it further, doing this is difficult if I’m not allowed to defend myself, I’m guilty and that’s the end of it! that’s not right, is it?

[73] Under cross-examination B.B. confirmed that his father had two work vans, first the blue one, which was a cargo van, and then the white one, which was more of a passenger van with removeable seats. In Lisle, J.B. and L.B. also had their own cars, although B.B. could not recall their make or model.

[74] B.B. thought the cottage trips happened for quite a few years starting after they moved to Lisle. He recalled canoeing with his father in both red and green canoes, but the sexual assault in the canoe only happened in the red canoe. B.B. thought his father may have owned the green canoe, and recalled perhaps one trip with a canoe strapped to a car, but he was quite unsure.

[75] In respect of the canoe assault, B.B. was taken to his police statement of April 17, 2021, in which he did not mention that he was standing up during the assault. When asked why this detail was missing, B.B. said there was a lot of detail left out – it was the first time he had given a statement, and he was unsure how much detail was required.

[76] B.B. was then taken to the following portion of his statement: “H’mm, so he would get me to try and sit on his penis, and try to penetrate me. H’mm. there was a time that he took me canoeing, H’mm, same thing. It was always trying to fondle me or get me to fondle him.” Defence counsel put it to B.B. that he told police J.B. had him fondle his penis during the canoe assault, which he did not testify to in examination in-chief. B.B. clarified that the fondle comment was not specific to the canoe assault, he was simply listing off examples at that point.

[77] During cross-examination B.B. clarified that the van assaults happened both when B.B. would go to work with J.B., and when B.B. would go to the dump with J.B.

[78] B.B. was also taken to the preliminary hearing transcript where he was questioned about the van assaults. It was put to him that he did not mention either J.B. trying to kiss him, or J.B. removing his pants so that he was naked from the waist down. B.B. confirmed he did not say those things, but not because they did not happen. Whenever he was asked a question, he tried his best to answer only that question, and not add any detail.

[79] B.B. was asked whether, when he used the word flashback, he meant new memories were coming to him in fragments. B.B.’s reply was very clear. His flashbacks haunted him, as they were memories that returned to him unbidden. What came to him in a flashback was no different from his actual memory. Flashbacks did not mean new and recovered memories of events.

[80] During the preliminary hearing, B.B. said that his father would have him squeeze his erect penis in the bathroom in Lisle. This differed from his evidence at trial, when he said he was never directed to squeeze his father’s penis in the bathroom. B.B. said that at the trial, he did not have that same memory. In other words, his memories varied. When asked whether, if he closed his eyes and thought about it, could he remember touching his father’s penis in the bathroom, B.B. apologized and said that at that moment, he just did not have that memory.

[81] B.B. confirmed that the times when his father penetrated him in the bathroom it hurt: “it felt like my vagina ripped.” When asked whether he had any memory of trying to resist J.B., B.B. said no. He thought that his father was showing him affection, and it did not seem like anything was wrong. Recall that B.B. was around 8 or 10 when the penetration began.

[82] When asked whether B.B. could recount where his brother or mother were during the sexual assaults, B.B. said there were hundreds of occasions, so he would be speculating. However, he knew there were times his mother was upstairs when his father was abusing him in the basement. As for the washroom assaults, his mother could have been out of the house getting groceries, or in Toronto for her nerve block shots. As for K.B., B.B. was sure he was never in his bedroom when B.B. was assaulted in their parents’ bedroom.

[83] During cross-examination B.B. was asked to confirm what rooms in the basement the assaults happened in. B.B. said they happened in the laundry room, the workshop, and the room with the woodstove. In terms of frequency, B.B. could not say how many assaults happened in the laundry room or the workshop but thought there were about 20 assaults in the woodstove room. When asked to confirm whether any assaults happened in the pool table room, B.B. said he did not recall any at that moment.

[84] B.B. was then taken to the preliminary hearing transcript, where he recounted that on one occasion, his father was sitting on the edge of the pool table, and he had B.B. squeeze his penis. This helped to refresh B.B.’s memory, and he confirmed that he had a vague recollection of that occurring.

[85] When asked about the frequency of assaults on the living room couch, B.B. estimated the number to be similar to the van assaults – in the hundreds. These assaults consisted of J.B. touching his clitoris and inserting his fingers, as well as getting B.B. to squeeze his penis. When asked whether his father hurt him, B.B. said yes, and there were multiple times when he could not pee or bathe afterward because it would hurt so bad.

[86] B.B. confirmed that the abuse stopped when he was 13, after he told his mother that J.B. was touching him. B.B. did not recall whether he told his mother that J.B. made him masturbate his penis then, although he thought that when he was 16, that may have come up. It was suggested to B.B. that he did not speak to his mother until he was 16. B.B. said that was perhaps true in respect of telling L.B. that J.B. penetrated her, but he was absolutely sure he told her about touching at 13. And he only told his mother about the penetration at 16 because L.B. came to him and asked whether it had happened.

[87] Reporting J.B. to the police was not discussed during either conversation with L.B.

[88] B.B. was asked about his mother’s trips to Toronto after she injured her ankle at work. While initially J.B. would drive her to the city for her medical appointments, when she travelled for her sympathetic nerve block injections, she would drive herself, staying over at her parents. B.B. could not say how often she was away. B.B. recalled times when he would get home from school and just his father would be there.

[89] B.B. confirmed that his parents helped him out financially over the years. He also confirmed that his father would come to his home to assist with handyman work, such as painting and putting up light fixtures.

[90] B.B. was taken to his parents’ email of March 2, 2021, in which they told B.B. how much they loved him, and that they were concerned for his health and happiness. B.B. clarified that this email was part of a larger string of emails that began after B.B. called the Children’s Aid Society, expressing concern for K.B.’s daughter, C.B. It was B.B.’s therapist who suggested calling CAS if J.B. was around minors.

[91] When asked how the email made him feel, B.B. said he felt his parents were lying, and they had started writing to him in a way that would reflect well in court. He also clarified that the portion of the email where J.B. talked about not being allowed to defend himself was in respect of someone else, not B.B.’s allegations before this court.

[92] B.B. confirmed that he had an opportunity to report abuse to police when he was 16 or 17, when he reported another incident unrelated to his father, but he didn’t.

[93] In re-direct, B.B. was asked why he did not tell the police that his father was abusing him. B.B. testified that over the years his parents had told him and K.B. not to disclose the abuse to anyone, in order to keep J.B. out of jail.

[94] B.B. very candidly said that while the abuse was happening, he did not want his father to go to jail, he just wanted the abuse to stop. Even at trial B.B. did not want J.B. to go to jail. But, at the end of the day, his father hurt him, and B.B. did not want to carry the burden any longer.

[95] B.B. further explained the difference between flashbacks and memories – flashbacks are more along the lines of PTSD (which he has been diagnosed with) that come out of nowhere. B.B. will not be thinking about the abuse, and all of a sudden, he will remember his father touching him. A memory is something he intentionally thinks about or conjures. And the images he sees in the flashbacks are consistent with what actually transpired.

Defence Evidence

J.B.

[96] J.B. testified that after the kids were born, he and L.B. moved from Toronto to the house in Malton, where they remained from about 1979 to 1983. J.B.’s description of the house corresponded to that of B.B.’s.

[97] J.B. worked the afternoon shift during this time at Metropolitan Wire, and he would still be in bed when the kids woke up. He recalled B.B. running into the room and jumping up on the bed, lying on top of him so J.B. could rub his back. J.B. confirmed he quite often slept in the nude, but when B.B. was on top of him there would always be a blanket between them.

[98] J.B. denied ever doing anything beyond touching B.B.’s back while he was in the bed with him in Malton. He denied ever directing B.B. to touch his penis.

[99] The family lived in Lisle from approximately 1983 to 1994. With a few minor discrepancies, J.B.’s diagram of the main floor of the Lisle home matched the one prepared by B.B. J.B.’s diagram also included the addition that he started but never finished, the main floor of which housed a two-car garage and an unfinished shop; the second floor had a washroom and three unfinished rooms. J.B. said no one used these rooms.

[100] J.B. also recounted his work history. They moved to Malton when he got the job at Metropolitan Wire. When that job ended J.B. was an unlicensed welder for a brief period before he started working for Chempac as an industrial maintenance mechanic.

[101] After moving to Lisle J.B. remained at Chempac, but eventually the commute became too expensive and he quit after two years, three tops. He worked at Oliver Industries installing wiring systems in new boats for about a year and a half until the factory burned down. For a short period he drove a school bus, and then he took over a friend’s contract installing hot water heaters for Ontario Hydro.

[102] After the kids moved out, B.B. first, followed by K.B., L.B. and J.B. moved to Port Hope, and J.B. worked for GO Transit, retiring after 12 years.

[103] L.B. worked while they lived in Lisle. The kids would be looked after by neighbours if neither of them were home.

[104] J.B. said that B.B. and K.B. were extremely close when they were younger. They did everything together, and as twins they had a special bond. They were also very competitive. If one excelled at a sport, the other would not want to continue on in the same sport. J.B. thought this was because they did not want to fight against each other for first place. As they matured in their teen years and began dating, their relationship changed.

[105] J.B. said he could never spend enough time with the kids when they were young because he was working all the time.

[106] J.B. was asked about the various vehicles he owned over the years. In Malton he had a Mercury Montego station wagon, and when that fell apart, he had a dark-coloured car that looked like a Chevy Nova. He also inherited his father’s Buick Riviera, which he did not drive much.

[107] After the dark blue car, J.B. had an orange Volkswagen Rabbit, followed by a blue Volkswagen Rabbit, followed by a small white van “for a very, very, short time.” He got the van from a friend, but did not think he managed to drive it once after he got it home – it kept breaking down every time it got to the end of the driveway. He eventually scrapped the white van and got the blue van, a 1989 Dodge Ram 1500. There were no seats in the back, and it had windows on the side.

[108] J.B. testified that while they lived in Lisle L.B. often went to Toronto for medical appointments. The majority of these appointments were for nerve blocks injections to numb the pain in her left leg, which she had injured quite badly while working at the pizza parlour in Lisle. J.B. thought the kids might have been around 12 years old when that happened.

[109] J.B. always drove her to these appointments. On two occasions they stayed over at L.B.’s parents’ in the city because L.B. was unable to manage the travel home.

[110] J.B. recalled that L.B. and the kids would spend two weeks each summer at the cottage L.B.’s sister rented at Cawaja Beach. J.B. thought the cottage visits started while the family lived in Malton, and ended before he got the contract job for Ontario Hydro.

[111] J.B. testified that he never owned a canoe, and he only remembered being in a canoe three times, the third time was during a cottage week at Cawaja Beach. In the canoe were he, K.B., and L.B.’s sister’s husband. K.B. would have been around four years old at the time.

[112] While at the cottage everyone spent a lot of time at the beach, which was about a kilometer away. During the daytime they would play, swim and sunbathe. In the evenings, they would watch the stars. They would always take a blanket when they went to the beach, day or night, because the winds off Georgian Bay could get cold. J.B. did not recall a time when he and B.B. were down at the beach together.

[113] J.B.’s first contract with Ontario Hydro was in 1988, and he bought the blue van later, in 1989 or 1990. Before buying the blue van he borrowed a friend’s Econoline van for about six months to use for work.

[114] J.B. confirmed that he would bring his kids to work with him in the blue van, although not at the same time. B.B. would often join him during the summer months, or on PA days. J.B. thought he took them when they were around 14 – he did not have the van when they were 13.

[115] When he took B.B. with him, J.B. never let him sit on his lap or stand in front of him and steer the van. He denied ever touching B.B. in the van, and he denied ever having B.B. touch his penis. There was never an occasion, in the back of the van, when J.B. would pull B.B.’s pants down and try to penetrate him with his penis.

[116] J.B. said he was never alone with B.B. in the white van.

[117] J.B. confirmed he had a brother in Port Hope, but he never drove the white van there for a visit.

[118] J.B. said there was a mattress in the back of the blue van during the time he was a courier delivering bank bags. He would drive to the depot in Toronto to drop off the bags he had picked up during the day, and sleep in the van to save the cost of driving all the way back to Lisle and return to work in Toronto the next day.

[119] J.B. confirmed that there were occasions when he and B.B. would be alone in the basement in Lisle, perhaps when B.B. was helping him clean up the ashes from the wood stove, or when he was building or fixing something for him. J.B. denied ever touching B.B.’s clitoris, rubbing his vagina, putting his fingers inside of him, or directing him to masturbate him in the laundry room, the workshop or the woodstove room. He also denied asking B.B. to masturbate him in the workshop.

[120] J.B. was asked about sleeping in the living room. He testified that he had trouble sleeping in bed, so he would often get up and go to the couch, where he’d fall asleep immediately.

[121] J.B. said there was never an occasion when he asked B.B. to join him on the couch in the middle of the night. J.B. testified that he never performed oral sex on B.B. on the couch, he never touched his genitals with his hands, he never asked him to kiss him in a sexual way, or never directed B.B. to put his hand on his penis.

[122] J.B. said that because there was only one washroom in the house at Lisle, there were times when two members of the family were using it together. He did not recall having baths with B.B. after moving to Lisle. He testified that there would have been times when he was in the bathroom alone with B.B., one of them on the toilet and the other in the tub. There was a wall separating the bathtub from the toilet, so they would not necessarily be looking directly at each other. J.B. denied ever touching B.B.’s genitals or putting his fingers in his vagina while J.B. sat on the toilet, he denied he had B.B. sit on his exposed penis and try to penetrate him while he sat on the toilet, and he denied ever ejaculating in front of B.B. in the washroom.

[123] There were occasions at the house in Lisle when B.B. would be in bed with him in L.B.’s absence, usually when B.B. woke up from a nightmare, or in the morning when L.B. was already up and B.B. came in looking for a back rub. On these occasions J.B. said he was quite probably naked, but there would be a blanket between them. He denied ever touching B.B.’s genitals or putting his fingers in B.B.’s vagina in the bedroom he shared with L.B. He denied ever lifting B.B.’s legs up and penetrating him with his penis.

[124] J.B. recalled B.B. getting some counselling when he was around 16 or 17. This was a period when he and B.B. were fighting a lot. J.B. testified the fights arose over mundane things – because B.B. wanted something J.B. could not afford, or J.B. had bought something for K.B. that was better than what he bought for B.B. B.B. was also becoming a partier.

[125] J.B. thought he saw the same counsellor as B.B. once or twice, but he stopped going because he did not want to continue. J.B. did not recall receiving a voicemail from B.B.’s therapist threatening to report J.B. to the police.

[126] J.B. testified that when B.B. was 17 or 18 he started calling J.B. a pedophile, but to J.B. this was just “name calling.”

[127] J.B. recalled L.B. asking him whether he ever touched B.B. He also recalled that he told her he did. He explained he had no idea what the question meant. It was late at night when L.B. asked him, he was tired. To J.B. this was a stupid question. Of course he had touched B.B. – he wiped his backside, changed his diaper…one cannot go through life without touching one’s child.

[128] Later, when J.B. realized that L.B. meant something else by “touching,” he told L.B. it never happened.

[129] J.B. thought L.B.’s question came when B.B. was older than 16, because he had his driver’s license at the time. He did not recall L.B. asking him if he touched B.B. inappropriately when B.B. was 13.

[130] When B.B. was 21, he announced to his family that he was a lesbian. J.B. said he and L.B. were dumfounded by this, “as a parent … you want your child to be normal.” His dream of walking B.B. down the aisle was blown out of the window. For a period, they stopped inviting B.B. over for dinner, and did not go out of their way to engage him in conversation.

[131] Similarly, when B.B. announced he was transitioning J.B. testified that he and L.B. were “pissed off” because of the reasons underlying his decision.

[132] At trial, J.B. estimated that over the years, he and L.B. had loaned B.B. between $50-60,000, which remained outstanding.

[133] J.B. was asked what he thought B.B. meant when he wrote that he had kept him (J.B.) out of jail to save his life. J.B. said he took it as a “big joke”, “just exaggerations.” He looked at the email, laughed, and looked away.

[134] When asked to explain his reply, that he wished he could take away B.B.’s hurt feelings, J.B. explained he was apologizing for a number of things that had happened over the years: missing high school graduation, B.B.’s coming out as a lesbian, buying B.B. things that he did not think were as good as what his brother got, J.B.’s working so much.

[135] J.B. described that when B.B. would write an explosive email and want a reply, he and L.B. would do one of two things – either reply to him in an appeasing manner to smooth things over, or ignore him, because invariably a few weeks later B.B. would be at their door, asking for a cup of tea.

[136] J.B. was asked what he meant when he said he was not in his right mind. J.B. described how he had a hard time dealing with situations – he does not read and write like normal people, which affected the way he went through life. Instead of being there for people, other things become more important.

[137] J.B. testified that he was not apologizing for the sexual abuse when he told B.B. he was sorry for what he had put him (B.B.) through.

[138] J.B. was asked to explain his email to B.B. of February 21, 2021, when he said he had apologized countless times over the last 30 years. J.B. testified he meant that there were times when he was supposed to go to B.B.’s house to help with something, and he would go to K.B.’s instead. When B.B. called to see where J.B. was, J.B. would say he was at K.B.’s, and B.B. would hang up, angry. J.B. was not apologizing for sexual abuse.

[139] J.B. was asked what he meant by “I know you were hurt years ago.” J.B. answered that B.B. was hurt quite a few times: “when the boys had a go at her,[^3] when she decided she was going to go lesbian, when she didn’t get jobs that she was looking forward to – a whole bunch of stuff."

[140] He only said “it should never have happened” because if he did not appease him, B.B. would launch into a rant, sending emails that overexaggerated things, name calling, etc. If J.B. left things alone, in a couple of weeks B.B. would get over his pique and start over again.

[141] During cross-examination J.B. agreed that the family may have moved to Lisle as early as 1981, and not 1983, as the kids were about six at the time they moved.

[142] Going through J.B.’s work history, he was asked whether he had lots of time to spend with his children once he started driving the school bus. At this point J.B. remembered he had two other jobs he did not mention in examination in-chief – he worked part time at a printing shop, and he delivered pizzas.

[143] J.B. was asked about the vehicles he owned over the years. He said the orange Volkswagen Rabbit was L.B.’s, and she got rid of it after she broke her ankle because it hurt to drive standard. She replaced the Rabbit with an Omni.

[144] When the blue Volkswagen Rabbit broke down, J.B. replaced it with the white “piece of junk” van, followed by the blue van. J.B. bought the white van from a friend for the buyout figure on the lease – J.B. thought a couple hundred dollars. The day after he drove it home, he went to use it, and got as far as the end of the driveway when it quit running. He pulled it back and managed to get it running, but again only got as far as the end of the driveway.

[145] For a period of perhaps a couple of weeks, J.B. made several attempts to fix the white van. This was to no avail, as he could never get it out of the driveway, so he traded in the white van for the blue van. When asked whether he could have owned the white van for two years, J.B. was unequivocal when answering “no.”

[146] The Crown suggested that he owned the white van for two years; J.B. said that was not possible. J.B. confirmed that he was not very good with years and times and dates, but there were some things he just could not get wrong. Like the 1998 blue van – he could not have bought it earlier than 1989.

[147] Crown counsel produced Ministry of Transportation records (“MTO”) documenting some of the license plate history of the white van. J.B. plated the van in May of 1987, when the twins were 11, and he removed the plates in March of 1989. J.B. did not recall having the van for that long. He thought that maybe he traded the van in without the plates, and then turned them in two years later. However, the next MTO record produced by the Crown shows that the van and the same plates were registered to a George Jacob, shortly after J.B. traded the van in. J.B. had no explanation for this.

[148] J.B. confirmed that L.B. was responsible for getting groceries and taking the kids to their appointments. J.B. would take the kids to sporting events – the twins played baseball together, and J.B. was their coach.

[149] L.B. worked after she broke her ankle, thus there were times when he would be at home, watching the kids. When asked if they would watch TV together, J.B. said no, he was not into TV. But he would bathe them, and they would do chores together, like clean out the wood stove.

[150] J.B. confirmed that he started the process of building the addition to the house in Lisle when the twins were 14 or 15 years old. Despite knowing that the kids might move out in a few years, he and L.B. hoped the renovation would be an enticement to stay. Plus, it was a good investment. The actual construction started when the twins were 16 or 17, but the addition was never finished because J.B. lost his contract with Ontario Hydro, and he could not access further funds from the bank.

[151] J.B. said that he and L.B. had a falling out with J.B.’s brother’s wife in 1980, when the kids were around five years old. This was well before buying the white van, so he would never have driven the white van to Port Hope.

[152] J.B. worked for Ontario Hydro for six years, from 1987 to 1993. He was asked what he used to transport the water heaters for the two years before he bought the blue van. J.B. thought he borrowed the van of the friend who gave him the Ontario Hydro contract, but he also could have used his blue Volkswagen, which he had built a trailer for. When it was put to him that he used the white van, which he confirmed he bought for the job, J.B. said he would have loved to, but he did not.

[153] The contract with Ontario Hydro afforded J.B. time to spend with the family and to work on the addition almost single-handedly.

[154] J.B. thought L.B. and the kids visited L.B.’s sister’s cottage for between six and eight years. On the occasions when he joined them, going down to the beach was a highlight, both daytime and nighttime. When asked whether they would watch the sun set over the water, J.B. said they could only see the sunrise from the beach – the sun set on the other side. Crown counsel showed J.B. a map which indicated the sun set over the water at Cawaja Beach. J.B. then said that they never went down to see the sunset.

[155] J.B. confirmed that L.B. received the nerve block injections for about five or six years, and there were times when she drove herself to Toronto and stayed over at her parents’. On some of these occasions B.B. would wake from a dream and run into J.B.’s room where he would sleep the rest of the night.

[156] J.B. also confirmed that it was not uncommon for he and B.B. to be on the couch together, and lying in bed together, and no one would think anything of it.

[157] J.B. was then cross-examined on the emails. In the first set, J.B. agreed B.B. was referencing present day issues, and that the only historical reference was B.B. keeping J.B. out of jail all these years. It was put to J.B. that his reply, that he was not in his right mind, was in reply to B.B.’s reference to keeping him out of jail. J.B. disagreed. He was not answering to anything specific, he only answered as he did to calm B.B. down and get him to relax and stop ranting. He said he meant that if he was in his right mind back then, J.B. would have done a lot of things differently – for example, not work so much overtime, but rather take time to enjoy his family.

[158] J.B. continued that he did not tell B.B. he disagreed with the “keeping him out of jail” comment because if he were to contradict B.B., it would be like throwing a firecracker into a dynamite storage area – nothing good would come of it. Once B.B. started with his accusations, it was best just to walk away from them and let time pass, because he would eventually settle down. In retrospect J.B. thought he perhaps should have addressed the jail comment.

[159] J.B. also testified that he was not surprised by the “keeping him out of jail” comment. Crown counsel suggested that he was not surprised by it because the fact that he abused B.B. when he was younger was openly talked about in the family. Not only did L.B. know, but so did K.B. J.B. disagreed.

[160] Crown counsel put to J.B. that if J.B. had been apologizing for 30 years in 2021, that would mean he had been apologizing since 1991, when B.B. would have been 16. Before his high school graduation, before B.B. came out as a lesbian, before B.B. transitioned from female to male. J.B. said the 30 years did not mean 30 years to the day – it could mean 29, and it could mean 32. He simply picked a number out of a hat.

[161] It was also put to J.B. that when he said it should never have happened and he was sorry it did, he was referencing the sexual abuse. J.B. disagreed.

[162] J.B. was taken to the next stream of emails, four years later, in which B.B. referenced J.B. not being on a sex offender list, saying that he wanted to save L.B. the grief of putting J.B. in jail, and did not want to live with the burden of keeping J.B.’s secret any longer. Crown counsel put to J.B. that this was yet another example of the family’s open secret that J.B. had sexually abused B.B. when he was younger.

[163] J.B. disagreed. He testified that B.B. had been accusing him of sexual abuse for years, but it was just B.B.’s way of terrorizing him. So yes, the family did talk about it, but not because it was true. They talked about it because these were the accusations being levelled at J.B., and it was getting a bit much.

[164] It was suggested to J.B. that if things like being on the sex offender list were not true, he would have made that known in his response. J.B. replied that yes, if anyone else had written that to him, he would have. But he did not.

[165] When asked about B.B. calling him a pedophile when he was a teenager, J.B. said B.B. loved calling people names. Further, when he first started calling him a pedophile, J.B. had no idea what the word meant, so he simply ignored it, which led to B.B.’s imagination getting the better of him. Even when he found out what the word meant, J.B. let it go.

[166] J.B. was asked about the occasion when L.B. asked him whether he had touched B.B. J.B. said L.B. was not upset when she asked him. He also said he did not ask her for clarification because he was tired. L.B. did seem upset afterward, however, which puzzled J.B. He talked to a friend about it, which is when he realized what L.B. meant. Twice he said his friend laughed like crazy at such a misunderstanding. J.B. thereafter told L.B. that no, he had not touched B.B. inappropriately.

[167] When it was put to him that he told L.B. he touched B.B. because it was true, J.B. disagreed.

[168] When it was put to him that the sexual abuse was something he and B.B. openly discussed, and he not only apologized for it in the past, but that he continued to apologize for it, J.B. disagreed.

[169] When asked whether it would surprise him that K.B. referenced the sexual abuse in a text exchange with B.B., J.B. said it would.

K.B.

[170] K.B. remembered going to his aunt’s cottage at Cawaja Beach, although he thought that was when he was from ten to twelve years old. K.B. agreed they spent lots of time down at the beach, playing during the day and at times watching the sunset at night.

[171] K.B. confirmed that as kids he and B.B. always had their own bedroom.

[172] When asked about the cars his parents had over the years, K.B. remembered the Montego station wagon and the blue Volkswagen Rabbit at the house in Malton. In Lisle he remembered the Buick Riviera, the blue Rabbit, a blue police-type car, perhaps a Volare, a Dodge Omni, a white van, and blue van, and a Dodge 2000.

[173] K.B. recalled J.B. driving the Rabbit until he got the white van, which was windowless. K.B. thought his dad had the white van for about a year, but it was always breaking down, and he eventually replaced it with the blue Dodge Ram.

[174] K.B. recalled being nine years old when they moved to Lisle. J.B. commuted to work at first. He then did odd jobs before getting the contract with Ontario Hydro, which K.B. thought was when he was around 12. K.B. would go to work with J.B., which he hated, because it was physical labour. B.B. would also go to work with J.B.

[175] K.B. had fond memories of going to the dump in the van with his dad and exploring.

[176] K.B. also remembered L.B. going to Toronto for medical appointments after she hurt her leg. These would be both day trips and overnights for two or three days. J.B. would drive her for the overnights.

[177] K.B. helped his dad with the Lisle renovation, which he thought started when he was 14 or 15 years old. The renovation was never finished, but when he and B.B. were 16 or 17 years old they started using the two unfinished rooms on the second floor as their bedrooms.

[178] K.B. did not remember a time when L.B. told he and B.B. to say in a room in the addition while she talked to J.B., much less did he remember L.B. coming back and telling he and B.B. about J.B. touching B.B. The Crown objected to this evidence as hearsay, and defence counsel moved on.

[179] K.B. recalled having a good relationship with B.B. growing up – they were inseparable. This changed once they hit high school and went their separate ways. When asked how he felt about B.B. coming out as a lesbian, K.B. said he was shocked and distraught, that “it wasn’t fair.” The two stopped talking for a while after that. When B.B. decided to transition to a male in his 40s, K.B. was very upset, very shocked, and hurt.

[180] K.B. never disowned B.B., they still stayed in touch enough to argue over texts and phone calls. They would argue about B.B. being transgendered, about K.B. calling him B.B. versus T.B., about their parents lending B.B. money, etc. K.B. thought that the last time he spoke with B.B. in person was in 2021, around the time B.B. went to police.

[181] In cross-examination K.B. agreed that his father was around a lot growing up. He spent time with them at the cottage, he coached baseball, and he and his dad worked on the renovation. He agreed that there were times when his mother was out of the house and J.B. was home with he and B.B. He also agreed it was not uncommon to see his father and B.B. on the couch together.

[182] K.B. explained the family dynamic over the last decade as not operating together as a family unit – it was either he and his parents, or B.B. and his parents. There was tension in his relationship with B.B. over B.B.’s choices in respect of his gender and sexuality. K.B. was frank and testified he resented B.B. for the family breakdown.

[183] The Crown suggested that when he was in his early-to-mid teens K.B. became aware that his father had sexually abused B.B. K.B. disagreed.

[184] The Crown then suggested that sexual abuse was something that the family talked about. K.B. agreed he talked to B.B. about it, but not his parents. B.B. disclosed the abuse to K.B. in 2020, during one of their many arguments. It floored K.B., and he did not believe B.B. K.B. spoke to his father about the accusation, and J.B. denied it happened. During this conversation K.B. also asked whether J.B. had touched his daughter C.B. inappropriately. J.B. denied doing so. K.B. believed his father.

[185] K.B. was taken to twelve pages of a text conversation between he and B.B. in 2020, while K.B. was in England. While it looked to be one continuous stream of conversation, K.B. believed B.B. kept some parts out, although K.B. could not say what was missing. K.B. also said there were telephone calls between the texts as well, where some things were said that did not form part of their texts.

[186] In the first text K.B. writes:

Ive always make myself aware of [C.B.’s] personal safety and well being when she was growing up and visiting with Dad and I don’t have any concerns I trust his behaviours.

[187] The Crown suggested this demonstrated K.B. was aware that J.B. sexually assaulted B.B. K.B. disagreed. The Crown suggested the note showed K.B. was aware of his father’s sexual abuse while C.B. visited with her grandfather. K.B. disagreed.

[188] K.B. said in this message he was telling B.B. he looked after his daughter’s well-being, regardless of who she was with. This was a general comment and not specific to his father – it included L.B. as well.

[189] Another message from K.B. read:

You dont think I don’t miss having a sister your wrong because its there I do for fuck sakes. You dont think I dont think of the past with the mistakes dad made because I do. I trust him with my daughter I forgave them both for my shitty life lack of guidance and leadership lack of a father figure and a mom who slept all day.

[190] The Crown suggested that the second sentence meant that K.B. was aware of the abuse in the past, but K.B. disagreed. The mistakes he referenced include being hit with a wooden spoon, their general lack of guidance growing up, J.B. not being there for his kids when they needed him.

[191] The Crown suggested that when K.B. immediately juxtaposed his comment about his father’s mistakes, with him trusting his father around C.B., this signaled that K.B. was aware of the abuse B.B. suffered at J.B.’s hands. K.B. disagreed.

[192] K.B. said he was just being sarcastic when he wrote that L.B. slept all day, as he and B.B. were in the midst of an argument. He did not mean figuratively that his mother slept all day. When pressed, he said that perhaps as a kid it did feel like she slept all day.

[193] Another passage written by K.B. is as follows:

Yes maybe our relationship is fucked but you still have mom and dad. Yes I know you were hurt by him 30+ years ago but time mends wounds and its time to forgive and let go.

[194] K.B. agreed he specifically said his dad hurt B.B., but he did not mean it. The entire email was simply K.B. trying to console B.B. and de-escalate the argument. K.B. confirmed that although he did not believe J.B. sexually abused B.B., his texts looked like he believed it. Again, this was only because he was trying to calm B.B. down.

[195] K.B. also wrote “what happened to you 30+ years ago was tragic I understand that fully and completely.” He testified this was not an acknowledgement of the sexual abuse, but rather he was simply saying what B.B. needed to hear to settle him down.

[196] It was put to K.B. that if he was offended that B.B. was making these accusations against J.B., he would not talk about the events as “tragic.” He would also have asked B.B. to stop making the allegations. K.B. said he did tell B.B. to stop, but that was over the phone, not via text. The call happened at some point over the course of the text exchange.

[197] Crown counsel suggested that instead of consoling, these emails were accusatory, blaming B.B. for the family breakdown. K.B. agreed he blamed B.B. for a lot. For example, all the money he took from J.B. and L.B. He agreed that the only time he was not accusatory was when he is consoling B.B. about the sexual assaults.

[198] B.B. wrote in one of the emails in this exchange:

Our own father literally tried to fuck me! And when I say this it’s literal dude. He literally tried to FUCK me and you know what I get when I ask for an apology (“how many times to I have to apologize, can’t we all just move on…”)

So next time, you feel the pain of feeling like you have to pee, multiple that by 1000 and you might understand what I’ve been through.

[199] K.B. replied:

Yes i understand what happened in your past I really cant imagine how that made you feel and the long term reprocutions of that. But the more you ponder it the more deadly your actions become. I really do understand the feeling you are dealing with although you need to as a person find peace it’s the only way you will servive trama.

I know what happened happened but please try to understand time can mend pain and finding family values can mend pain.

No more threats I also feel the threats like you’re a bomb going to explode to destroy everyone for what happened to you.

[200] K.B. agreed that he described what happened to B.B. as a trauma. But not because he was validating what B.B. was saying, only to console and de-escalate. Again, he was simply agreeing to the statement B.B. was making. He did not agree that any sexual abuse happened.

[201] In redirect K.B. explained what he meant by de-escalating. He described that with B.B., you needed to tell him what he wanted to hear, even if you do not want to say it. This email stream was started after a phone call between K.B. and B.B., and K.B. was simply trying to de-escalate the argument that had ensued.

[202] K.B. explained that by using the word “trauma” he was simply referring to life’s pain and suffering.

[203] Finally, K.B. explained that when he referred to threats, he was referring to the sexual abuse allegations.

[204] I note that the texts between B.B. and K.B. were entered only as lettered exhibits. There had been some discussion concerning their admissibility, but the Crown ultimately determined they did not need to be entered as evidence. While they did not become numbered exhibits, counsel understood that I may refer to them.

ANALYSIS

[205] This is not a case where both the accused and the complainant could be truthful or where one or both could be mistaken. This is a case where one is lying about central events. Accordingly, the outcome rests on the credibility of the evidence of J.B. and B.B. Again, I am not required to choose between their versions. If I am not sure that B.B. is telling the truth, or if I am not sure that J.B. is lying, then I must acquit. Similarly, if I do not know who to believe, I must acquit.

Credibility

[206] Credibility rests at the heart of the Crown’s case. While they are absolutely necessary, credibility assessments are a particularly challenging aspect of a trier’s job. These assessments are made even more difficult in cases where time has passed, and memories have faded.

[207] The Crown’s case relies solely on the credibility and reliability of B.B. Of course, credibility and reliability are not interchangeable. Credibility has to do with truthfulness, while reliability has to do with accuracy – namely, the witness’s ability to accurately observe, recall and recount evidence. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability; a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 OR (3d) 514, at paras. 33-35.

[208] While he was an adult at the time of the trial, B.B. testified to events that started happening when he was six, many years earlier.

[209] Historically, the evidence of children was approached with scepticism, and believed to be inherently unreliable. Testimony corroborating their evidence was required. Over the years, this prevailing wisdom has undergone a sea change, leading to changes to both the Criminal Code, R.S.C., 1985, c. C-46 and the Canada Evidence Act, R.S.C. 1985, c. C-5. As Wilson J. wrote for the court in R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48:

In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

[210] A child’s perspective is different from an adult’s, and they may have difficulty in memory, in description, and perhaps even processing what has occurred. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it: R. v. B.(G.), at para. 48.

[211] A child witness should not be held to the same tests of credibility as an adult. Common sense should rule, acknowledging the strengths and weaknesses of the evidence. Since children may experience the world differently from adults, they may be unable to provide details that are important to adults, such as time and place, which may be missing from their recollection: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at para. 26.

[212] This is not to suggest that the standards of proof are lowered when dealing with children:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding, and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed accordingly to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

R. v. W.(R.), at para. 26.

[213] That said, an inconsistency on a main or central feature of an incident may suggest a carelessness with the truth that supports a significant concern with the witness’ evidence: R. v. M.G., 1994 8733 (ON CA), [1994] O.J. No. 2086, at para. 27.

[214] To be clear, I have viewed the evidence of B.B. not as a child, but as an adult testifying to events that occurred when he was a child.

[215] Having set out the evidence of the three witnesses, I must now examine whether J.B.’s evidence leaves me in a state of reasonable doubt about his guilt.

The Credibility and Reliability of K.B.

[216] K.B.’s evidence was largely uncontroversial. I do have some concerns about his credibility, although I am satisfied he did his best to answer the questions put to him. Much like his father did, K.B. depicted B.B. as someone who needed to be pandered to. In order to console B.B. when he got into one of his fits, K.B. would say anything to de-escalate. This included acknowledging B.B.’s allegations of sexual abuse against J.B., even though he did not believe that B.B. was sexually abused. I did not believe K.B.’s evidence in this regard.

[217] When K.B. was asked what behaviours of his father he was agreed were harmful to B.B. in the texts, K.B. said he was referring to mundane things, like being hit with the wooden spoon growing up. However, in cross examination he conceded that he was talking about the sexual abuse perpetrated by his father.

[218] I also question the reliability of some of K.B.’s evidence. I view it through the lens of one caught between the pull of familial relationships. It was clear that K.B. wanted his family to be a unit once again. But it was also clear that he harboured deep resentment toward B.B. for the dissolution of the family. Further, the disdain K.B. feels for B.B.’s choices regarding his sexuality was palpable.

[219] Overall, K.B.’s evidence did nothing to move the needle in respect of the credibility of the two central witnesses.

The Credibility and Reliability of B.B.

[220] There is no issue that the events described by B.B., if accepted beyond a reasonable doubt, make out the offences as charged.

[221] Defence counsel submitted that B.B.’s evidence is not sufficiently credible and reliable to establish J.B.’s guilt beyond a reasonable doubt.

[222] Defence counsel submitted that there is a serious lack of memory on B.B.’s behalf which, when juxtaposed against unusual recollection on some details, draws B.B.’s credibility into question. For example, the sexual assaults in the Malton bedroom. B.B. testified that during the first assault he was lying on his right side, and during the second he was lying on his left side. However, B.B. could not say where his mother or brother were when the assault was occurring, he did not remember how the assault ended, and he did not remember whether he and his father spoke. B.B. could not even say whether the two incidents were close in time. Defence submitted that in light of the details B.B. did not remember, the details B.B. gave are not believable.

[223] Defence counsel submitted that B.B.’s testimony in respect of the vans is also inconsistent. First, he got the order of the vans wrong. B.B. testified that the abuse started in the blue van, and continued when J.B. got the white van. However, according to J.B.’s evidence, which was corroborated by K.B. as well as the MTO records, J.B. owned the white van first, and then the blue van. While mixing up the color of the vans is an inconsistency, it is a minor one. J.B. in fact owned both a white and a blue van. I find this falls within the category of inconsistency that our courts have described as normal and expected: R. v. G.(M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347, at para. 26.

[224] Defence counsel submits that when B.B. was describing the first sexual assault he remembered happening in the blue van, he said it was on a day that he went to work with J.B. In a follow up question, he said the assault happened on the way home from the dump. I disagree that B.B. confused the two events.

[225] Defence counsel submits that B.B. was also inconsistent about the very nature of the sexual assaults in the van. According to defence counsel, B.B. testified that the sexual assaults in the front of the van – either while on his father’s lap or standing beside him – were only of J.B. touching B.B., not B.B. touching J.B. However, in cross-examination defence counsel took B.B. to the preliminary hearing transcript, where B.B. testified that there would be times, when he was at the front driving, that his father would put B.B.’s hand on his penis and direct him to squeeze while J.B. flexed his penis. According to defence counsel this is a material inconsistency.

[226] This inconsistency can be dealt with summarily. Defence counsel is incorrect, as B.B.’s evidence in examination in-chief was clear:

A. In the van; in the van, it was always either he was touching my genitals, inserting his fingers into my genitals or he was getting me to massage his penis. And it was those types of scenarios repeatedly.

Q. Okay. And when you say that you're getting - he was getting you to massage his penis, tell us how that would happen.

A. That's where - when he would have his - his penis outside of his pants, and he would flex his penis and put my hand onto it and then squeeze my hand. I guess, massage isn’t the right word. I don’t know how else to describe that, flexing activity.

Q. And how would that come to be? So when he exposed his erect penis, where would you be in the van?

A. That's where I would be standing off to the side next to the driver's seat. There's the centre console, so I’d be sitting - I’d be standing between the driver's chair and the centre console.

[227] Defence counsel submits B.B.’s evidence was inconsistent when he testified about the assaults in the back of the vans. For example, B.B. added details not included in either his statement to police or the preliminary hearing: that his father tried to kiss him, and that his father removed his clothing, so he was naked from the waist down. In respect of the kissing, B.B. said that he though defence counsel was questioning him on penetration with his fingers or penis, which is why his answer only focused on that issue when he recounted the assaults at the back of the van.

[228] In respect of J.B. removing his clothing, B.B. readily admitted that the preliminary hearing transcript did not contain these details. When asked whether he agreed that this evidence only came out at trial, B.B. said that he had been asked a lot of questions in the last few years, and he did not remember whether he had mentioned the clothing removal before.

[229] This inconsistency remained unresolved. That said, it pertained to a peripheral detail at most. Whether or not J.B. tried to kiss B.B., or remove her bottoms, B.B.’s evidence that he was sexually assaulted in the back of the van never waivered. This inconsistency does not undermine B.B.’s credibility or reliability on the whole.

[230] Defence counsel noted the inconsistency surrounding B.B.’s testimony about being sexually assaulted in the white van on a family trip to Port Hope. According to J.B.’s evidence this never could have happened, because he had had a falling out with his brother in 1980, well before the white van was purchased. Further, there was never a mattress in the white van, only the blue one, when the kids were older. Yet again, this does not amount to a material inconsistency. First, J.B.’s testimony that one of the vans did have a mattress in it in fact supports B.B.’s evidence. Second, K.B. testified that while their family had had a falling out with one of J.B.’s brothers in Port Hope, J.B. had another brother, and a sister, also in Port Hope, and these families remained close. Close enough, in fact, that when B.B. and K.B. moved out of their parents’ home in Lisle, separately, they moved in with J.B.’s sister. It is possible that the assault happened as B.B. described, but in the blue van.

[231] Defence counsel then went through what he characterized as inconsistencies in respect of the sexual assaults in the Lisle house. First, B.B. said he bathed with his father in Lisle, but J.B. and K.B. testified that by Lisle, J.B. bathing with the children had stopped. Second, and much more material, B.B. testified at trial that the washroom sexual assaults consisted of J.B. touching and penetrating his vaginal area with his fingers, or J.B. trying to penetrate B.B. with his penis while J.B. sat on the toilet.

[232] In cross-examination B.B. confirmed that J.B. did not direct him to squeeze his penis during any washroom assaults. B.B. did say, however, each time he was asked, that he thought that was correct. When confronted with the fact that B.B. testified at the preliminary hearing that J.B. would direct him to squeeze his penis in the washroom, B.B. agreed that the evidence was different, but explained that he simply did not have a memory at the trial of J.B. doing so. Defence counsel submitted that either B.B. had a memory problem, or he was being evasive.

[233] Defence counsel next pointed out inconsistencies in B.B.’s testimony concerning how many times he was assaulted in the basement, the details of the assaults, and which rooms they happened in.

[234] Finally, defence counsel submitted that in B.B.’s recounting of the canoe assault to the police and the preliminary inquiry, B.B. did not say that he was standing during the assault. I do not view this is an inconsistency. Many of the van assaults happened while B.B. was standing in front of or to the side of J.B., with his back to him. J.B. would then reach around to put his hand down B.B.’s pants. The canoe assault may have happened in the same manner, with B.B. standing.

[235] Despite defence counsel’s submissions, overall, I found B.B. to be a credible and reliable witness.

[236] B.B. was attentive, careful, and responsive to questioning, both during examination in-chief and in cross-examination. He declined to answer questions that he did not know the answer to. It was clear he tried hard to answer as truthfully as he could. He did not exaggerate his testimony. He did not speculate. There were a couple of occasions where B.B. abandoned an answer because he realized he would be guessing.

[237] Even when B.B. described the pain the assaults caused him, he was calm and measured. The only time he showed emotion was when he described the first time his father penetrated him with his penis. While I place no weight on the demeanor of any of the witnesses who testified, this break is B.B.’s armour is consistent with the magnitude of that particular assault.

[238] Neither was B.B. a defensive witness. When inconsistencies were brought to his attention he acknowledged them, and his answers as to why his evidence differed struck me as plausible.

[239] This is not, contrary to what defence may suggest, a case involving a complainant who had a lapse in memory and later recalled what happened. B.B. was very clear that the memory of the abuse has remained with him since it happened. Any references to flashbacks do not connote recovered memory, but rather an unbidden recollection.

[240] B.B.’s evidence was internally consistent. His version of the assaults was always coherent and cohesive. His evidence never faltered in recounting how the sexual assaults began, or how they played out. There may have been inconsistencies as to what assault happened where, but the core of B.B.’s allegations never faltered. Frankly, given the sheer frequency of the assaults, and the span of time over which they occurred, such inconsistencies are to be expected. It is not surprising that B.B. had a difficult time remembering exactly what assault happened where. As de Sa J. held in R. v. R.C., 2018 ONSC 230, [2018] O.J. No. 1129, at para. 107:

I acknowledge that Ms. D.P. had issues with recalling the specific details of many of the incidents. She recalled certain things out of order, and/or forgot certain aspects altogether. In my view, these inconsistencies flow from the lapse in time. They also can be explained by the frequency with which the assaults occurred. This was not one event that occurred to Ms. D.P., but rather, it was a series of assaults and sexual assaults which occurred over a number of years. It would be natural to mix up certain details. That being said, the unique nature of the events described and the manner in which they were relayed by Ms. D.P. satisfies me of their truth.

[241] Despite the number of assaults and the passage of time, I find B.B. was able to make accurate and complete observations and provide the court with a wealth of candid detail about the sexual contact between him and his father. For instance, he testified that:

• His father would often lick his fingers before fondling him;

• After J.B. fondled his clitoris and put his fingers in his vagina, it would hurt to pee;

• B.B.’s genitals would be so raw from his father’s fingers on and in him that it hurt when his underwear touched his genitals;

• B.B. described how, the first time J.B. penetrated him, B.B.’s legs were pulled up in the air and his ankles were at J.B.’s shoulders;

• B.B. remembered enjoying the feeling of his back being rubbed and tickled by his father before many sexual assaults began, particularly when B.B. was younger;

• B.B.’s description of how J.B. taught him how to masturbate him by holding B.B.’s hand on his penis and flexing, and at each flex he would squeeze B.B.’s hand and move it up and down his penis.

[242] I find that B.B.’s inconsistencies were in respect of peripheral details. While some new details emerged at trial, B.B.’s overall version of events has remained the same throughout the proceedings. His evidence was not perfect. That said, the imperfections did not undermine my confidence in his testimony.

[243] Defence was critical that the Crown did not call L.B. to testify, as L.B. was a disclosure witness for the Crown. To wit, she was part of the narrative linking B.B. to J.B., given B.B.’s evidence that when he told his mother about the abuse she immediately confronted J.B. about it. While L.B. could not testify to any prior consistent statement made by B.B., she could testify as to her memories surrounding the disclosure – when it happened, how many times, etc. Defence counsel submits that without L.B.’s evidence, there is a gap in the Crown’s case that should raise reasonable doubt.

[244] With respect, I disagree. B.B. testified that he told L.B. about the abuse when he was 13. He provided context for the conversation. He recalled it happened in a room in the addition that was being used as a bedroom. He recalled that the room had a space heater for warmth, and he recalled L.B. telling he and K.B. to remain in that room while she went to talk to J.B. B.B. also said he and L.B. talked about the abuse a second time, when B.B. was 16 or 17 and still living at home. During this conversation L.B. asked B.B. whether J.B. had penetrated him, and B.B. told his mother no.

[245] Perhaps B.B. conflated these two conversations. However, there is no gap in the evidence. B.B. testified that he told his mother about the abuse. J.B. testified that L.B. confronted him about touching B.B. Whether it happened when B.B. was 13 or 16 is of lesser import. And the fact that K.B. does not remember this event is of no moment. Any inconsistency is peripheral and does not affect B.B.’s credibility.

[246] After carefully considering all of the evidence, I believe B.B.’s core allegations. In the following section I explain why I have concerns about the J.B.’s credibility. There was nothing in his evidence that caused me to doubt B.B.’s account.

The Credibility and Reliability of J.B.

[247] There were a number of positive aspects to the testimony provided by J.B. He was an attentive, respectful, and responsive witness. He did not fluster easily, even under aggressive cross-examination. He remained calm, provided an adequate level of detail, and acknowledged when he was not sure of an answer.

[248] To his credit, J.B. provided testimony that could be considered contrary to his interests. For example, he readily admitted that as a young child B.B. would lie on top of him, belly-to-belly, when J.B. was in bed, and he would rub and tickle B.B.’s back with his hand. He confirmed that he slept in the nude.

[249] J.B. agreed there were opportunities for he and B.B. to be alone together, either in the work vans, or at the home in Lisle, both upstairs and downstairs.

[250] J.B. was not very good with dates, but this does not impact on him negatively given the passage of time.

[251] In fact, in respect of the day-to-day aspects of family life, J.B. and B.B.’s evidence is remarkably similar.

[252] However, despite the positive aspects to his testimony, I had serious concerns about J.B.’s credibility and reliability on material matters. Portions of his evidence were unreasonable in ways that aligned with his interest.

[253] First, there were instances where he tried to distance himself from the opportunity to sexually assault B.B. For example, the assault at the cottage, when B.B. said it was just he and his dad down at the beach. J.B. said they could not see sunsets from the beach, only sunrises. But the maps produced by the Crown showed that the beach would be a prime location to watch sunsets. K.B. also testified that as a family they would go to the beach in the evening to watch the sunsets.

[254] Another example of distancing himself is in respect of the white van. Of all the vehicles J.B. recalled owning, this was the only one he spoke of with clear disdain, more than once referencing it as a piece of junk. His testimony, that he owned the white van for only a month or two at the most, was not born out. He agreed he purchased the van because he needed a vehicle large enough to hold the water heaters he was installing for Ontario Hydro.

[255] J.B. bought the van in 1985. If J.B. only had the van for two months, then he would have worked for Ontario Hydro for close to two years without an adequate vehicle, until he bought the blue van in 1989. His evidence, that he may have borrowed a friends’ van for a few months, or used his Volkswagen Rabbit with the trailer he made, was not plausible. Nor was his explanation that he may have kept the white van’s plates in his garage for two years before returning them to the dealership.

[256] Further, not only did K.B. testify that J.B. owned the van for a year, the MTO records suggest that J.B. owned the van for two years, from 1987 to 1989. This makes inherent sense, as the MTO records also document that the van was returned to the same dealership J.B. testified he bought the blue van from in 1989.

[257] I find J.B.’s evidence in respect of the white van was an effort on his part to distance himself from opportunities to sexually assault B.B. While this raises the question of why J.B. did not distance himself from the blue van, given B.B.’s testimony that the assaults occurred int that vehicle as well, the evidence in respect of the white van begins to chip at the armour of J.B.’s reliability.

[258] Another example of J.B. distancing himself from opportunity is his portrayal of being away from the home working while L.B. stayed home as the caretaker. It was only in cross-examination that we learned L.B. had her own car, which she used to go to work, run errands, go to medical appointments. Thus, there was ample opportunity for J.B. to be home alone with his children.

[259] Second, I was also troubled by the unreasonableness of some of J.B.’s evidence. For example, his testimony that B.B. started calling him a pedophile when B.B. was around 17. In the normal course, this is not an accusation that one lightly would ignore. But when such an accusation is levelled by one’s own child, walking away and not confronting it defies common sense.

[260] J.B. tried to defect blame from himself by demonizing B.B., much as K.B. did. He depicted B.B. as histrionic, with dramatic behaviours and rapidly shifting emotions. The only way to assuage him was to say what he wanted to hear. That included acknowledging B.B.’s allegations of sexual assault. This simply does not make common sense.

[261] I was similarly bothered by J.B.’s evidence in respect of L.B. asking him whether he had ever touched B.B. Logically this question can only have one meaning. It is an alarming question, and if he did not know what L.B. meant, he should have asked her. Yet his evidence was that he said yes because he thought the question was benign. If J.B. truly thought the question was benign, why then raise it with his friend in the context of trying to figure out why L.B. was mad at him. I reject J.B.’s evidence in respect of B.B.’s name calling and L.B.’s question.

[262] J.B.’s evidence in respect of the emails, which the Crown urges me to view as a confession, raised the most serious concerns about his credibility. Before turning to the emails, however, it behooves me to address defence counsel’s submission that J.B.’s apologies may only be viewed as a confession if I am satisfied J.B. knew and understood what he was apologizing for. And J.B. did not know about the allegations of sexual abuse until after he was charged in April 2021.

[263] In support of this proposition defence relies on Dawe J.’s recent decision in R. v. B.B, 2023 ONSC 396, [2023] O.J. No. 241. There, the complainant alleged her father sexually assaulted her based on her recovered memory of a single incident of her father touching her nipple. A number of emails were exchanged between the complainant and her father, one in which the father apologized. However, Dawe J. was not satisfied that the father understood the specifics of the allegation when he apologized. As I understand it, the father understood the complainant’s memory was of him putting his hand up her shirt, not of touching her nipple. The father was ultimately acquitted.

[264] The case at bar is immediately distinguishable. I am satisfied that J.B. knew precisely what he was apologizing for – the sexual abuse he perpetrated on B.B. I base this finding on J.B.’s own evidence. In examination in-chief he testified that the first time he heard about B.B.’s allegations that he had touched him inappropriately, and J.B. said when B.B. was 17 or 18 and started calling him a pedophile. While J.B. testified that he initially did not know what the word meant, he testified that he did eventually find out. A pedophile engages in sexual acts with children.

[265] Second, when L.B. asked J.B. whether he had touched B.B., he said yes. Common sense dictates L.B. can only have meant this question in a sexual way. I do not believe J.B. spoke to a friend about this discussion, nor do I believe that after this conversation J.B. told L.B. that he now understood her question, and the answer was in fact no.

[266] Third, the tenor of what J.B. writes can only be referencing the sexual assaults. J.B. apologized for everything he put B.B. through. J.B. told B.B. he was not in his right mind years ago. J.B. said he wished he could take away all B.B.’s hurt feelings from what had happened. J.B. acknowledged that B.B. was hurt years ago and that it should never have happened. J.B. said he has apologized countless times over the past 30 years. I reject J.B.’s evidence that he was apologizing for not being a better father, and not being there for B.B. I reject J.B.’s evidence that the hurt feelings he referenced were in relation to his not being at B.B.’s when he said he would be, or B.B. not getting a job he had been hoping for.

[267] I find favour with the Crown’s submission that the sexual assault was an open secret in the family home. This is supported not only by B.B.’s evidence, but by the text exchanges between B.B. and K.B. K.B. wrote he knew B.B. was hurt 30+ years ago by J.B. K.B. said that what happened to B.B. 30+ years ago was tragic. K.B. also said that finding peace is the only way to survive trauma. I reject K.B.’s evidence that he acted like he believed B.B. only to de-escalate the situation, and that the trauma he referred to was not in respect of the sexual assaults perpetrated by J.B.

[268] For all of these reasons, I do not believe J.B.’s denial that he sexually abused B.B. I hasten to add that even in the absence of the emails and texts, my decision would not have differed.

CONCLUSION

[269] B.B.’s evidence convinces me beyond a reasonable doubt that J.B. repeatedly sexually assaulted him over a period of six to seven years. It is not possible that B.B. was mistaken. His testimony in respect of the core allegations was coherent, cohesive and consistent. As I explain in my analysis, any inconsistencies were reasonable and to be expected. Neither J.B.’s testimony, nor the evidence as a whole, leaves me in a reasonable doubt about what happened.

[270] I am satisfied that on countless occasions J.B. sexually touched B.B. with his hands, that he tried to, and eventually did, penetrate B.B.’s vagina with his penis. I am satisfied that on at least one occasion he tried to penetrate his anus. I am satisfied that J.B. taught B.B. how to masturbate him, and directed B.B. to masturbate him hundreds of times. And I am satisfied that on one occasion J.B. licked B.B.’s vagina.

[271] For the reasons I have expressed, I find J.B. guilty of sexual assault contrary to s. 246.1, sexual intercourse with a female under 14 contrary to s. 146.1, sexual interference contrary to s. 151, indecent assault contrary to s. 149, incest contrary to s. 150 of the Criminal Code, and invitation to sexual touching contrary to s. 152.

Justice A. Casullo

Released: February 9, 2024

CORRIGENDA

1. The text of this judgment has been revised to comply with s. 486.4(1) of the Criminal Code, such that any information that may identify the person described in this judgment as the complainant or a witness has been removed. The parties’ names have been initialized throughout;

2. Paragraph 16 – the street addresses have been removed, leaving only the name of the cities;

3. Paragraph 147 – in the first line, a closed quote was inserted around “MTO”;

4. Paragraph 263 – in the last sentence, B.B. has been replaced with “The father”, in order to avoid any confusion with similar initials; and,

5. Paragraph 267 – in the second line, the first two words have been replaced with “family home”.

[^1]: B.B. was born T.B., a female. B.B. transitioned to a male in 2014.

[^2]: B.B. described the flexing as J.B. using the muscles in his penis to make it move, or twitch. He would twitch, and would have B.B. squeeze. Then twitch, then squeeze. At other times J.B. would manipulate B.B.’s hand and have him move it up and down has he held B.B.’s hand on his penis.

[^3]: The incident noted at para. 92.