COURT FILE NO.: CR-22-13-00 DATE: 2024-04-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING O. Eskicioglu, for the Crown

- and -

S.K. P. Lewandowski, for the Accused Accused

HEARD: August 15-28, 2023, October 3, 2023, by Zoom, decision delivered orally March 27, 2024. Madam Justice T. J. Nieckarz

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons For Judgment

Overview

[1] S.K. (also referred to as the “Accused”) faces twenty-five (25) charges related to three different complainants, all alleged to have occurred in the Township of Atikokan, as follows:

a. Complainant, H.E.P.: i. Between January 1, 2007, and December 31, 2010, did commit an assault with a weapon, namely dish soap, contrary to s. 267 (a) of the Criminal Code of Canada (the “Code”); ii. Three counts of assault, contrary to s. 266 of the Code, with one count alleged to have occurred between January 1, 2007 and December 31, 2010, one between January 1, 2010 and December 31, 2014, and the other between January 1, 2014 and December 31, 2015; iii. Three counts of unlawful confinement, contrary to s. 279(2) of the Code, with one count alleged to have occurred between January 1, 2007 and December 31, 2010, one between January 1, 2010 and December 31, 2014, and the other between January 1, 2014 and December 31, 2015; iv. Two counts of touching a person under 16 years for a sexual purpose, contrary to s. 151 of the Code, with one count alleged to have occurred between January 1, 2010 and December 31, 2014, and the other between January 1, 2014 and December 31, 2015; v. One count of sexual assault contrary to s. 271 of the Code, alleged to have occurred between January 1, 2010 and December 31, 2014; vi. Two counts of invitation to a person under 16 years to touch for a sexual purpose contrary to s. 152 of the Code, with one count alleged to have occurred between January 1, 2010 and December 31, 2014, and the other between January 1, 2014 and December 31, 2015;

b. Complainant H.J.P: i. Three counts of assault, contrary to s. 266 of the Code, one count alleged to have occurred between January 1, 2007 and December 31, 2010, another between January 1, 2010 and December 31, 2014, and another between January 1, 2014 and December 31, 2015; ii. Three counts of unlawful confinement, contrary to s. 279(2) of the Code, with one count alleged to have occurred between January 1, 2007 and December 31, 2010, another alleged to have occurred between January 1, 2010 and December 31, 2014, and another between January 1, 2014 and December 31, 2015; iii. Two counts of sexual assault, contrary to s. 271 of the Code, which is alleged to have occurred between January 1, 2010 and December 31, 2014, and between January 1, 2014 and December 31, 2015; iv. Two counts of touching a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Code, between January 1, 2010 and December 31, 2014, and between January 1, 2014 and December 31, 2015;

c. Complainant B.A.K.: i. One count of assault contrary to s. 266 of the Code, between January 1, 2014 and December 31, 2015; and ii. One count of assault with a weapon, being a paddle or spoon, contrary to s. 267 (a) of the Code, between January 1, 2014 and December 31, 2015.

[2] Two of the complainants, namely H.E.P. (18 years old at the time of testifying, born November 2004) and H.J.P. (20 years old at the time of trial, born March 2003) are the children of the Accused’s former long-term partner, T.G. The other complainant, B.A.K. (15 years old at the time of trial, born January 2008) is the biological son of the Accused and T.G.

[3] All three complainants allege that the Accused physically assaulted them, sometimes under the guise of discipline, and other times simply because he was angry. The Crown argues that the Accused’s actions went beyond reasonable discipline. H.E.P. and H.J.P. also allege that they were confined to their bedrooms on numerous occasions, being restrained on one. H.E.P. alleges that she was the victim of repeated sexual assaults which involved the Accused touching her with his hands, mouth, and penis, and that the Accused also forcing her to perform fellatio on him. H.J.P. alleges that his penis was fondled by the Accused repeatedly.

[4] The Accused denies the allegations. He does not deny having “spanked” the children from time to time, but he does deny that the spankings went beyond reasonable discipline. He does not deny having sent the children to their rooms occasionally, but not in the manner alleged. He denies any sexual assaults against H.E.P. and H.J.P., and denies any behaviour that could be considered sexually inappropriate against the children.

[5] The evidence at trial consisted of the following:

a. admissions (that do not go to the substance of the charges); b. the oral evidence of each of the three complainants and exhibits entered during the course of their evidence; and c. the oral evidence of the Accused.

[6] The Crown brought two evidentiary applications that were argued at the conclusion of the trial, and which I will address briefly in these reasons, namely:

a. a similar fact application b. disreputable conduct application.

[7] Central to a disposition in this case is an assessment of the credibility and reliability of the evidence of the complainants and the Accused.

[8] For the reasons that follow, I find the Accused guilty on count #16 and not-guilty with respect to all remaining counts.

Background Facts

[9] Between approximately 2006-2007 and 2017-2018, the Accused was in a common law relationship with T.G. When the relationship began, H.J.P. was approximately 4 years old and H.E.P. was between 15 months to 2 years old. There is no dispute that the Accused was in a parental role to H.E.P. and H.J.P.

[10] The Accused and T.G. had two biological children, B.A.K., and R.K. R.K. was born June 28, 2017.

[11] The family initially lived in Atikokan, Ontario. While in Atikokan they lived in homes described as follows:

a. The Accused recalls having first moved in with T.G. prior to April 2007 while she was living in a home on Alder Street (“the Alder home”). During this time the Accused was working primarily seasonal jobs, working long days, 6 or 7 days a week, from March to the end of September, with little work during the winter months. H.E.P. and H.J.P. each had their own bedroom, while the Accused and T.G. shared a room. b. The Accused could not recall when the family moved to Wright Street (“the Lone Pine home”). Many of the allegations pertain to this home. H.J.P. recalled the family moving while he was staying with his father during the summer between senior kindergarten and Grade 1. H.J.P. and B.A.K. shared a bedroom with bunkbeds, while H.E.P. had her own room, as did the parents. While living in this home the Accused. went back to school, taking an adult high school equivalency program during the winter, and working during the summer. In 2012 he began college and moved to Thunder Bay in August 2012 (without the family), travelling back to Atikokan on weekends when he was able to. College finished in April 2014. During his time at college, the Accused remained in Thunder Bay for the summers to work at co-op programs to gain work experience. c. The family moved to McKenzie Street (“the McKenzie Street home”) without the Accused. The Accused and T.G. separated during this time because of the Accused’s infidelity. the Accused estimates this was in 2014. Occasionally he would travel to Atikokan to see the children, but this was infrequent.

[12] the Accused and T.G. reconciled after a period of time. The family moved to a house on Empress Avenue, in Thunder Bay (“the Empress home”). the Accused was working in Thunder Bay full-time, which was the reason for this move. Each child had their own bedroom at this house. T.G. worked multiple part-time jobs while in Thunder Bay.

[13] At the time of the Accused and T.G.’s separation, H.J.P. had been living with his father since approximately 2015 (13 years old), while H.E.P. had moved up to Atikokan to stay with her aunt. the Accused and T.G. continued to live separate and apart in the same home. H.E.P. alleges that she disclosed sexual abuse by the Accused approximately 6 months prior to her relocating to Atikokan, which would have been 6 months prior to separation (approximately 2017-2018). T.G. moved to Atikokan approximately 6 months after H.E.P had moved. The evidence suggests that T.G. remained in the family home after separation for economic reasons, and to organize the relocation back to Atikokan.

[14] H.E.P. and H.J.P. first gave statements to police on July 20, 2021, with respect to the allegations. B.A.K. provided his statement to police on September 16, 2021. the Accused was arrested November 18, 2021.

The Legal Framework

The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[15] The Accused is presumed innocent of the charges unless and until the Crown proves guilt beyond a reasonable doubt.

[16] To secure a conviction, the Crown must prove the essential elements of the charges beyond a reasonable doubt. This standard of proof is very stringent. If the Crown fails to meet this burden, the Accused must be acquitted. If the Crown succeeds in meeting the burden, the Accused must be convicted.

[17] Proof “beyond a reasonable doubt” has no precise definition. In R. v. Lifchus, [1997] 3 S.C.R. 320 (“Lifchus”), the Supreme Court of Canada outlined the definitive guide for criminal trial courts in Canada with respect to reasonable doubt. At para. 39 of Lifchus, the Supreme Court stated that reasonable doubt is based on reason and common sense. It is logically derived from the evidence or absence of evidence. While the Crown is not required to prove anything to an absolute certainty, a judge must be sure that an accused committed the offence before convicting them.

[18] As stated by Molloy J. in R. v. Nyznik, 2017 ONSC 4392, at para. 7:

The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged. [Emphasis in original.]

[19] In R. v. Amodio, 2020 ONSC 8077, Dunphy J. highlighted these concepts and the challenge faced by judges in cases involving allegations of sexual conduct against children:

[56] Judges are neither omniscient nor magicians. The criminal standard of proof is set as high as it is set in our society for a very particular reason. It reflects a social choice to tolerate some crime going unpunished before allowing innocent people to be wrongly convicted. Even still, as with any system administered by fallible humans, our system is not perfect.

[57] Sexual assault in general and sexual assault of minors in particular raises these issues in the most terrible way. The nature of these crimes is that there is very often no forensic evidence of any kind and there are no witnesses save the accused and his or her victim. These are also the type of crimes where society’s interest in protecting some of its most vulnerable members is at its highest and most acute.

[20] As a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence: R. v. B.D., 2011 ONCA 51, at para. 96.

Reasonable Doubt and Sexual Assault Cases

[21] This is one of those cases in which there is no forensic evidence. The primary witnesses are the complainants and the Accused. It would be easy to turn this into a credibility contest in which I determine whether or not I prefer the evidence of the complainants more so than the Accused. That, however, would not be the proper legal approach.

[22] As then Regional Senior Justice Warkentin noted in R. v. A.K., 2019 ONSC 5160, at paras. 56-57, it is not appropriate to determine a verdict by saying “who do I believe?”. Such an approach erodes the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt.

[23] When there are competing versions of what happened, the Supreme Court of Canada provided the analysis to be followed in R. v. W. (D.), [1991] 1 S.C.R. 742 (“W. (D.)”). The analysis described at para. 28 of W. (D.) states:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[24] Because the Accused chose to testify, the principles set out in R. v. W. (D.) apply.

[25] In considering the evidence I may believe all, some, or none of each witness’ evidence. Just because I disbelieve some of a witnesses’ evidence does not mean I must disbelieve it all.

[26] Particularly with respect to steps 2 and 3 of the W. (D.) framework, I must consider the evidence of the Accused in the context of all the evidence in the case, including the evidence of each of the three complainants. If, after considering all the evidence I am left unsure as to who I am to believe, then the presumption of innocence and burden of proof on the Crown requires me to acquit: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152, at para. 11.

Credibility vs. Reliability

[27] As identified at the outset, this is a case that turns on an assessment of the credibility and reliability of the evidence of the complainants.

[28] Reliability has to do with the accuracy of a witness’ evidence, which requires an assessment of a witness’s ability to accurately observe, recall and recount events: R. v. L.D., 2021 ONSC 385, at para. 19, citing R. v. H.C., 2009 ONCA 56, 241 CCC (3d) 45.

[29] Credibility has to do with whether the witness is telling the truth. A witness who is credible may not be reliable. Sometimes an honest witness may be mistaken in their recollection. Only evidence that is both reliable and credible, and addresses the essential elements of an offence, can support a finding of guilt beyond a reasonable doubt.

[30] All three complainants were children when the events are alleged to have occurred, and B.A.K. is still a minor. The evidence of children requires special consideration and a common-sense approach. The Supreme Court of Canada has recognized that children may experience the world differently from adults, such that it may be wrong to apply adult tests for credibility to the evidence of children: R. v. W.(R.), [1992] 2 S.C.R. 122, at paras. 24-25.

[31] The Court of Appeal for Ontario has also recognized that child witnesses may not be able to recall events in the same detail as adults. Flaws and inconsistencies in their evidence are not necessarily treated in the same manner as would be the case of an adult. As explained by Juriansz, J.A. in R. v. J.J.B, 2013 ONCA 268, at para. 70:

[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:

[A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…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.

[32] In R. v. M. (A.), 2014 ONCA 769, Watt J.A., succinctly set out the following principles, many of which are relevant to this case:

[11] […] Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, [1962] S.C.R. 469, [1962] S.C.J. No. 27.

[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No, 24, 2008 SCC 24, at para. 31.

[33] While inconsistencies on minor matters or matters of detail are normal, a trial judge must exercise caution and be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral” to avoid having to address and weigh them: R. v. W.M., 2022 ONSC 3812, at para. 9.

[34] Overall, it is important to appreciate that child or youth witnesses may not be able to recall aspects of the allegations in the same detail as an adult. Having said this, the Crown’s burden of proof beyond a reasonable doubt is not lowered simply because the primary witness is a child. While it may be assessed somewhat differently based on the foregoing principles, the child’s evidence is still subject to the same standard of proof as the evidence of an adult.

Position of the Crown

[35] The Crown argues that the evidence of the Accused should be rejected, with the evidence of the complainants be accepted, at least as to the essential parts of their evidence. While there are some inconsistencies in the evidence of the complainants, they are either on peripheral matters or are not such that their evidence should be entirely discounted. In certain respects, it is argued that each of their evidence corroborates each other’s recollection of events, and not that of the Accused. In considering the evidence as a whole, the Crown submits that there should be no doubt that the Accused committed the offences charged.

[36] The Crown further brings similar fact and uncharged disreputable conduct applications to have evidence used as follows:

a. The Crown seeks to use the evidence adduced by each complainant with respect to each count pertaining to them, to support inferences and prove the guilt of the Accused on the other counts pertaining to that particular complainant. For clarity, the Crown does not seek to argue that H.J.P.’s evidence as to the assaults alleged to have been committed against him should be used to support inferences and prove the assaults alleged by B.A.K. Rather, by way of example only, the Crown argues that H.J.P.’s evidence as to the assaults he suffered at one house should be used to prove a different count with respect to assaults alleged to have been committed against him at a different house, or with respect to forcible confinements. b. With respect to evidence of uncharged disreputable conduct by the Accused, the Crown seeks to admit and use evidence of inappropriate sexual comments or behaviour alleged to have been made towards H.E.P., evidence of H.J.P. of inappropriate sexual behaviour of the Accused in allegedly showing him pornography and making inappropriate comments, behaviour of the Accused surrounding H.E.P.’s showering practices and disputes between T.G. and the Accused about it, evidence of the complainants as to domestic violence allegations (yelling, screaming, fighting with children and T.G.) suggesting that “Abuse by the Accused as a Household Fixture”, and other evidence with respect to the alleged assaults and confinements. The purpose for which the Crown seeks to use this evidence is to:

• Provide narrative for the charged events;
• Provide context for the evidence;
• Explain the nature of the relationship between the Accused, the complainants, and T.G.;
• To explain the failure of the children or their mother to leave the relationship or report the abuse earlier;
• To rebut a claim of fabrication; and
• To prove the actus reus of the charged offences, which along with the similar fact evidence, the Crown argues supports the complainants’ credibility.

Position of the Defence

[37] The Defence takes the position that the Crown has failed to meet the burden imposed on it to prove the offences charged beyond a reasonable doubt.

[38] The evidence of the Accused should be believed. If I do not outright accept the denials of the Accused, these denials combined with the difficulties associated with the evidence of the complainants, raise doubt. The Defence argues that what has happened is that events which were innocuous, have, at a later time, been mischaracterized as criminal. For example, regular checking of children’s teeth by both parents because of some dental concerns has been turned into a sexualized activity. This is also particularly evident with respect to the allegations of unlawful confinement and the alleged assaults. It is argued that all the court heard from the complainants was general evidence that the Accused was always yelling, screaming, and violent. The evidence was punctuated with banner terms such as violent, aggressive, and intimidating, but the moment anybody, whether Crown or Defence, tried to drill down on it to obtain details of a specific assault, or a specific time a complainant was forcibly confined, the complainants struggled to do so. At the end of the day, this apparition was knocked down to something that was more akin to discipline than criminal behaviour.

[39] The Defence cautions that in assessing the evidence of the complainants, I must be extremely careful with recovered memories. The Defence argues that there are various degrees of recovered memories for each complainant, either through speaking with their mom, with each other, flashbacks and nightmares, or going through this process.

[40] The Defence takes particular exception to the Crown’s similar fact application, arguing that the Crown’s argument and use it seeks to make of the evidence is a “complete conflation of the law.” The Defence submits that except in cases in which, for example, there was a separate plea on a different occasion, in general similar fact evidence comes from a secondary source. Simply because a complainant says that something happened in the same way more than once, does not make it more true, and does not make it similar fact evidence. While it is open to me to consider the evidence of a complainant that something happened to them more than once, in different homes, and in the same manner, this is part of the credibility and reliability analysis, and not similar fact evidence. It is not open to me, as part of a similar fact application to say that simply because I believe a complainant with respect to one count, I should believe the complainant with respect to other counts. Use of the evidence in this manner, the Defence submits, would be an error in law.

The Allegations and Evidence of the Complainants

Allegations Pertaining to H.E.P.

[41] With the consent of the Defence, H.E.P. testified remotely from an Ontario Provincial Police (O.P.P.) detachment with her father, E.P. in the room as a support person.

[42] H.E.P. is currently living with her father. She works in a local office and hopes to return to school at some point. She testified that she has close relationships with her mother, her father, as well as her four brothers.

[43] H.E.P. believes that she was 12 – 15 months old when the Accused came into her life. She could not remember specific dates as to when she lived at various homes to which the counts relate.

[44] She did remember that the Accused was not always at various houses. She remembers everyone being on “high alert” when he came back to see them, and she recalls feeling anxious. When the Accused would leave again, she remembered she felt “normal”.

[45] H.E.P. describes a home in which there was a lot of arguing between her mother and the Accused. She recalls arguments with plates smashing and yelling. She does not know what the arguments or fighting were about. She and her siblings would go to their rooms either separately or together when the fighting was happening. She testified that she saw the Accused get in her mother’s face in Thunder Bay and try to intimidate her. Everyone was scared of the Accused.

Count #1 – Assault with a Weapon

[46] H.E.P. alleges that while living in the Alder home, the Accused pulled H.E.P.’s head and neck back and poured dish soap down her throat, causing her to swallow it, which caused her to feel a burning sensation, followed by vomiting. She does not recall how old she was. Initially she described herself as a toddler. She does remember that her brother, H.J.P., told their mother that H.E.P. had said a ‘bad word’. Her mother then got up and said, “I’m going to put soap on my finger and put it in your mouth.” H.E.P. said that this was to get her to tell the truth about whether she said the bad word or not. The Accused then intervened because he was “pissed off”, and H.E.P. does not know “if he was on something”, but he took the soap from her mother, and poured it down her throat. Half the bottle was poured into her mouth.

[47] She further testified that her mother was “freaking out”. She does not know if her mother saw the entire event, but when her mother realized what was happening, she ran in and tried to stop it. H.E.P. just remembers the burning sensation and the vomiting. She remembers the soap was slippery. She thinks she went to the hospital. H.E.P. has no independent recollection of going to the hospital but assumes her mother would have taken her. No medical or hospital records were tendered as evidence.

[48] T.G. did not testify. The Crown indicated at the commencement of the trial that T.G. was a witness who was scheduled to testify, but as the trial progressed, T.G. was not called.

[49] H.J.P. testified that he remembered the incident. He did not actually see the Accused pour dish soap down his sister’s throat, or put any soap in her mouth, but he remembers a time when she was sick and had bubbles coming out of her mouth. He remembers the sound of gagging and confirmed that having soap put in their mouths was a common threat of punishment. Therefore, when he saw the bubbles and saw his sister being sick, he “put two and two together.”

[50] The Accused denies that this incident happened. He recalls that as a threat, both he and the children’s mother would threaten to wash the children’s mouths out with soap if they said ‘bad words’. He recalls that T.G. did in fact place soap on her finger and placed it inside the children’s mouths. But he denies that he ever poured dish soap down the throat of H.E.P.

Counts #2, #4, #9 – Assault

[51] Count #2 pertains to assaults that are alleged to have occurred in the Alder home. Count #4 pertains to assaults that are alleged to have occurred at the Lone Pine home. Count #9 pertains to assaults that are alleged to have occurred at the Mackenzie home.

[52] H.E.P. did not recall a specific incident occurring at the Alder, Lone Pine, or Mackenzie homes. She only remembered an incident that occurred at the Empress home. What she did remember is that there was a lot of yelling and screaming and fighting between her mother and step-father. She testified that the Accused yelled and screamed at the children a lot, often yelling in their face. This would cause arguments with their mom, who would defend them. He was very strict, like a ticking time bomb; they never knew when he would go off.

[53] She testified that the Accused frequently hit her and her brothers. It was not every day, but often, and it happened at each of the homes they lived in. One moment everything would be fine, and the next moment the Accused would ‘snap’ and get upset about something. For example, if they were having tantrums, they would get a smack in the mouth. She recalled it happening to her brother B.A.K., and she said it happened to her also, even though she did not have a specific recollection of it. She also recalled that all the children, including herself, would get spanked. Her brother, B.A.K. got the worst of it, often getting in trouble for nothing.

[54] The incident alleged by H.E.P. to have happened in the Empress home is that the children were play fighting with the Accused. H.E.P. recalls biting the Accused’s hand, although not hard. The Accused’s response was to smack her with force on the back, so hard that it left a handprint for three days. She recalls that her mother saw the handprint on her back.

Counts #3, #5, #10 – Unlawful Confinement

[55] H.E.P. testified that while in all three homes, the Accused frequently placed the children in their rooms, shut the door, and then would not let them out. While initially she did not recall a specific incident for each home, H.E.P. acknowledged that this was generally in response to the children doing something that required discipline. Her evidence was that the Accused generally would grab her or her brothers aggressively, by the shirt or the arm, and toss them in their room with words to the effect of “…you’re not allowed out of this fucking room, you’re going to sit there.” His level of aggression was dependent on how angry he was. Out of fear, she would not try the door, or try to come out. Her mother was usually around when this happened. The confinement would usually only end when her mother would come and release her.

[56] In cross-examination, H.E.P. testified that on one occasion when they lived at the Alder home she was confined to her room in a more severe manner, with the Accused duct taping her wrists and mouth. She also saw H.J.P. being duct taped at this time. She believes they were in the room for an hour. She was able to remove the tape. She remembers H.J.P. telling the Accused that she had removed her duct tape.

Counts #6, #7, #11, #12 – Sexual Touching a Person Under 16, and Sexual Assault

[57] The incidents that relate to these counts are alleged to have occurred at the Lone Pine home and Mackenzie home. They occurred in the bedroom of the Accused. They commonly started with H.E.P. taking a shower. Her recollection was that the Accused would watch her in the shower, not allow her to close the bathroom door, or that he would sometimes watch her change and take off her clothes before getting into the shower. She remembers catching him once or twice either trying to watch her shower or walking into the bathroom while she was showering. She acknowledged that her recollection of being watched in the shower was only at the Empress home, and not the other homes in Atikokan. She also acknowledged that the shower curtain was always closed, even though he required her to keep the bathroom door open.

[58] She recalls that when she came out of the shower, she generally wrapped herself in a towel and was led into the Accused’s bedroom by him. She said this only happened when her mother was not home, although her brothers were sometimes home. The Accused shut the bedroom door, sometimes locking it, and covered her eyes with another towel or cloth, telling her that he did not want the light to get in her eyes. He would also tell her that he was performing a hygiene check to make sure she was clean. She remembers “it got really bad” in the Lone Pine home, with the Accused doing more and more to “see what he could get away with without being told no.”

[59] After being blindfolded, the Accused removed H.E.P.’s towel so that she was nude. She could hear his pants fall to the ground. He would part her legs or make her spread them. She would then feel a warm, wet sensation. He would then either touch her vagina with his fingers, his mouth and tongue, or with his penis. There was no penetration with hands or penis but with tongue. H.E.P. recalled one occasion when the Accused ejaculated on her stomach while she was on the bed. For the most part, the touching was between her legs, except for one time in Thunder Bay when he tried to touch her breasts while on the couch. The incidents stopped whenever the Accused decided to stop. They would each get dressed and pretend as if nothing happened.

[60] H.E.P. testified that she recalls that the room the Accused shared with her mother at the Lone Pine home had a television, a closet, and there was a bucket on the top shelf that had a picture of a parrot on it. She specifically recalls times that she could see the parrot bucket through a crack in the towel. She believed the parrot to be a macaw. It was green. She remembers focusing on the bucket throughout the assaults to distract her.

[61] She also recalls, at the Lone Pine home, being required to go on her knees, with the Accused telling her he was going to check her teeth. This happened when she came out of the shower, and at other times when the Accused removed her from what she was doing and told her it was time to check teeth. He blindfolded her. One time she fought him not to be blindfolded and he let her go but was mean about it.

[62] While on her knees, she heard the Accused remove his pants and sit on the edge of the bed. A couple of times he asked her to keep her tongue out and move it around. He put things in her mouth, likely so he could say he was checking her teeth. She could feel his penis in her mouth and remembered it smelled sweaty. He ejaculated in her mouth. She remembers the salty fluid and either holding it in her mouth or spitting it out. This happened frequently, but only when her mom was not home.

[63] H.E.P.’s evidence was that her mother was out a lot, that she liked to “party”, that she would come home drunk, and that the Accused offered to care for the children. At the time she thought he was looking after them and trying to take care of them, but now she knows it was a rouse for his own pleasure.

[64] H.E.P. did not realize that this was inappropriate behaviour until she became older and started getting flashbacks and nightmares. The flashbacks and nightmares started after she began taking medications for mental health concerns which she was experiencing.

[65] H.E.P. also recalled an incident when she was 11 or 12 years old. The Accused was making something in the kitchen and she went to see what he was making. He grabbed her and tried to pull her close to his body. He said she was sexy and he wanted to do ‘naked stuff’ with her. He told her not to tell her mom. She called her mom and told her he had said some weird things to her, and that she was scared. She may have also texted her mom with what he actually said. Her mom came home from work to make sure she was ok. She was in bed “frozen”. Then she heard the worst fighting than she had ever heard. Again, there was no evidence from T.G. This incident forms part of the Crown’s uncharged discreditable conduct application.

[66] H.E.P. revealed the allegations to her mother when the Accused was pushing to have H.E.P. go on a camping trip alone with him. This was when they lived at the Empress house. She was worried “she wouldn’t come back.” She went to tell her mom one day but had a hard time getting the words out. Her mom “put two and two together.” H.E.P. told her mother about the Accused making her lay down or get on her knees and how he would blindfold her and what she experienced. This is how her mother figured out what was happening without H.E.P. having to say it. Her mother was upset. Her mother took her to confront the Accused. He denied the allegations and said she was mis-remembering events. She continued to live in the home with the family for six months. After she disclosed everything to her mother, he stopped sexually assaulting her.

[67] B.A.K. confirmed that teeth checking was something that did happen in the home. His teeth were checked by the Accused or T.G. from time to time.

[68] B.A.K. recalled that in the Mackenzie home and the Empress home, he was aware that H.E.P. was in the Accused’s bedroom. He explained that on various occasions when he was in the house and was bored, he went looking for the Accused and H.E.P. His brother was playing video games and his mom was out. The door to the Accused’s bedroom was locked between two and three times and he would knock but not get a response. He recalls twice when it was not locked, or in the Mackenzie house where there was no lock, seeing H.E.P. and the Accused sitting on the edge of the bed facing each other. He remembers the Accused getting angry and telling him to go away. He did not fully see H.E.P., just her hair or a leg or arm. The Accused was clothed. He recalls the Accused telling him once they were planning a surprise for T.G., but as far as he knows, no surprise ever happened. H.E.P. testified that she remembers one time when B.A.K. knocked on the door and the Accused yelled at him to go away and “fuck-off”.

[69] B.A.K. also spontaneously offered that he recalled a parrot bucket he would sit on while playing x-box. He believed the parrots were yellow.

[70] H.E.P. also alleges that in the Mackenzie home she was home alone with the Accused when he asked her to cuddle with him in his room. They got into the bed together, the Accused put his hands down her pants and started rubbing her vagina. She spoke about being uncomfortable and wanting to leave but does not recall how it ended. She recalls that later on that day they were sitting on the couch and the Accused asked her if what they had done made her uncomfortable. She said it had. The Accused promised not to do it again, but the assaults continued.

Counts #8, #13 – Invitation to Sexual Touching

[71] The time parameters for count #8 pertain to the Lone Pine home. H.E.P. does not recall a specific incident at his home.

[72] She does recall an incident with respect to the Mackenzie home (count #13). She recalls the Accused coming into her room and asking for a back rub. H.E.P. said this was not unusual. He would do it often and out in the open. This time was different because the Accused came into her room and turned off the television and the lights, making the room completely dark. He lay on the bed, asked for the massage, but pulled down his pants exposing his penis. She said he tried to guide her hands down his body, but she refused, so he gave up.

Allegations Pertaining to H.J.P.

[73] H.J.P. testified that the Accused was a father to them and that he loved the children “in his own messed up way.” It was the Accused who took them hunting, on snowmachine rides, and did “dad stuff” with them. However, his parenting style involved a lot of yelling and physical consequences. He was always yelling at them. As a child he felt it was normal to be scared of your dad.

[74] He recalls his mother and the Accused as having a “love/hate” relationship. They fought a lot. Police were called. He did not see anything physical between his mother and the Accused, but would hear them yelling, screaming, and things being thrown. He does not know why they were fighting. He does not remember one being more of an aggressor than the other. He described them both as “stubborn people”. This happened once or twice a week. He remembers feeling scared when they fought, and recalled that the children would go to their rooms. Sometimes his mother intervened if she felt a spanking was too hard, and this would cause an argument.

[75] When H.J.P. had finished Grade 7, after approximately one year of living at the Empress home, he moved in with his biological father. He does not remember why. He remembers feeling that he was not connecting well with the Accused and wanted to give his dad’s home a try. The Christmas of that year, he returned home for a visit, and this was the last time he remembers seeing the Accused. He remembered being upset when the Accused and his mother separated because he loved him, but slowly he “started putting stuff together.” His mother told him that the Accused had done something inappropriate and “very bad” to his sister. She did not give details. They have spent the past few years putting the pieces together. It was his mom’s decision for them to go to the police.

Counts #14, #16, #20 – Assault

[76] With respect to counts #14, #16, and #20, the allegation is that H.J.P. was assaulted by the Accused in all three Atikokan homes. H.J.P.’s evidence was general, pertaining to all houses. He alleged verbal and physical abuse being a constant.

[77] Count #16 pertains to a specific incident H.J.P. recalls in which he dropped and broke a bowl during breakfast. H.J.P. testified that the Accused’s face turned red, so H.J.P. ran to his room. The Accused followed him, grabbed him, and gave him an open palm slap to the face before walking away. H.J.P.’s evidence is that it disoriented him, and it stung.

[78] H.J.P.’s evidence is that with respect to the assaults, sometimes it made sense because the children were misbehaving, and other times it did not. With respect to the bowl specifically, he testified that it was an accident and he did not understand why the Accused reacted the way he did.

Counts #15, #17, #21 – Unlawful Confinement

[79] H.J.P. alleges that when he was younger (no older than 10 or 11 years old), the Accused would repeatedly get upset at H.J.P. for not listening or for being a “shit disturber”, or sometimes for no reason, and would take a tight grip on him and lead him by the arm to his room. Once put in his room, he said it ‘felt like’ he was there for a few hours. He was not sure if he was allowed to leave but was too scared to leave in case the Accused put his hands on him again. When his mother was not around, the Accused would grab him. When in his room, he would either lay down and sleep or play with toys on his bed. When his mother came home, it was usually her who let him out.

[80] H.J.P. does not recall seeing his other siblings being placed in their rooms in the same way. He did see B.A.K. get put in his room on one occasion for misbehaving, but it was not rough.

[81] He does recall having tape around his hands and mouth. He does not remember why. He knows he was being punished. He was brought to his room, taped, and then the Accused left the room. He does not remember this happening to his siblings. He was able to remove the mouth tape.

[82] To the extent that I do not find unlawful confinement, the Crown argues that the behaviour of the Accused by tightly gripping H.J.P. and forcefully leading him to his room, constitutes assault.

Counts #18, #19, #22, #23 – Sexual Assault and Touching for a Sexual Purpose

[83] H.J.P.’s evidence is that he was sexually assaulted by the Accused on various occasions at the Lone Pine, Mackenzie, and possibly the Empress homes, although he was not clear on the latter. H.J.P. alleges that the assaults were less frequent at the Mackenzie home than at the Lone Pine home because the Accused was at work or school and was not at the home as much.

[84] H.J.P. alleges that he and his brother, B.A.K., shared a bedroom. They had bunkbeds and would change from time to time who would sleep on the top and who would sleep on the bottom. When he was on the bottom, the Accused would come into the bedroom after lights were out and would crawl into his bed with him. He would remove H.J.P.’s clothing down to his thighs, and fondle his penis. He would kiss H.J.P., with H.J.P. remembering distinctly the scratching of the Accused’s beard. The Accused would ask him how it felt while he was fondling him. H.J.P. believes that his mother was home, as she often tucked them in. He estimates that the incidents lasted approximately 10 – 15 minutes, with the Accused getting up and leaving at the end. The Accused was clothed. B.A.K. was present and on the top bunk, but H.J.P. does not know if he saw or heard anything. At the time, H.J.P. thought this was normal, and that the Accused was checking him to make sure he was healthy.

[85] H.J.P. also testified that sometimes it was the Accused who would “tuck him in” and sometimes his mom would do it. If his mom tucked him in, the Accused would come in after and lay down next to him. Mostly this is what happened. A few times when the Accused came in, H.J.P. was on the top bunk. The Accused would tuck B.A.K. in and leave.

[86] This happened at the Lone Pine home and the McKenzie home, but less frequently at the McKenzie home because the Accused was away at school. As H.J.P. became older, the less frequent the incidents were.

[87] B.A.K. recalled sharing a bunkbed with his brother. He also recalls in the Mackenzie home his father coming into the bedroom at night, after they had been put to sleep. He testified that the Accused came in and got into the bed, although B.A.K. could not see if he was laying or sitting on the bed. He could not say what the Accused and H.J.P. were doing. B.A.K. would fall asleep. He does not recall seeing the Accused leave the room. He believes this happened “about twice”. Consistent with H.J.P.’s evidence that occasionally the Accused tucked them in, B.A.K. assumed that the Accused was either tucking H.J.P. in or was going to sleep with him.

[88] H.J.P. also recalled the Accused showing him pornography on his phone. It happened twice. On one occasion before he went into the shower at the Empress house, the Accused told him to think about it while he was in there. Another time was when they were in a vehicle together. During one of these incidents, the Accused asked if H.J.P. preferred blondes or brunettes. The Crown argues that this uncharged conduct is indicative of the Accused’s inappropriate sexualized behaviour with the children.

Allegations Pertaining to B.A.K.

[89] B.A.K. remembers that when his parents lived together there was a lot of fighting. He remembers the yelling and screaming, although he did not see anything. He remembers feeling scared while his parents were fighting.

[90] When his parents separated, he remembered seeing his dad crying. Sometime later, his mom told him that his dad was dangerous, and they had to leave. After approximately a year, he questioned why his dad was no longer around, and was told during a conversation involving his mom, H.E.P. and H.J.P., that his dad had molested his siblings.

[91] As a result of B.A.K.’s evidence, counts #24 and #25 were amended as follows:

a. To extend the date range to January 1, 2014 to December 31, 2017 to also include events happening in Thunder Bay at Empress; and b. With respect to count #25, to add a book as a weapon.

Counts #24, #25 – Assault with a Weapon and Assault

[92] With respect to count #24, B.A.K. testified to having a very clear memory from the Empress home of his father spanking him with a spoon, with his hand, and sometimes with a book. The incidents would usually surround a meal and B.A.K. refusing to finish his food. The Accused would yell at him and not allow him to leave the table. His mother sometimes would witness this and would intervene, yelling back at the Accused. When his mother was not present, the Accused would take him to his room, expose his bottom, make him lie on the bed bottom up, and either spank him hard with a book, his hand, and once with a wooden spoon. He described the spoon. He recalls each time that his “bum” would sting to the point that he could not sit for a day without pain. His father would say words to the effect of “Finish your fucking food next time”. B.A.K. testified he felt scared once it was over.

[93] B.A.K. has no memory of anything other than yelling, screaming, and “cussing” at the Atikokan homes.

[94] H.J.P. testified that he has seen B.A.K. spanked regularly once a week or every two weeks. B.A.K. was spanked with a hand by the Accused. Sometimes his mom was present. B.A.K. would be placed over the leg of the Accused, his pants pulled down, and he would be slapped on his bottom until it was red. B.A.K. would then be sent to his room crying. H.J.P. further testified that there was some power to the slaps, but he did not think that the Accused realized his own strength. He recalls this happening at the Lone Pine and Empress homes. The Crown argues that any differences between B.A.K.’s recollection of these events and H.J.P.’s, such as the fact that B.A.K. said it happened in his bedroom while laying on the bed, can be reconciled by the fact that B.A.K. has no recollection of the Lone Pine house due to his age at the time.

[95] H.E.P.’s evidence is that while all of the children were spanked to the point they could not sit down, B.A.K. received the worst of the Accused’s physical abuse. She recalled that he was hit a lot. She has seen the Accused smack B.A.K. in the head. She has seen him grab B.A.K. by the shoulders, pick him up, and toss him onto the ground. She said this would happen when the Accused was angry, if they were “annoying” him, or if he was just in a bad mood. B.A.K. did not testify as to any such incidents. H.E.P. remembers him spanking all of them on the bottom with his hand. It happened in all the houses, but she remembers this most vividly in the house on Empress.

Evidence of the Accused

[96] The Accused vehemently denies any sexual abuse of his step-children:

a. With respect to H.E.P., he denies that he watched her in the shower, stating adamantly that “it did not happen.” He denies having blindfolded her, having taken her to his bedroom, having removed her towel, having touched her in a sexual manner, having licked her vagina, having put his penis in her mouth or ejaculating on her. He states that there were no sexual overtures made towards her. He acknowledged taking to her a towel, a face cloth, or pyjamas occasionally when she forgot to bring them in. He had no recollection of the argument with T.G. that H.J.P. recounted. He acknowledged it was possible that T.G. asked him why he was in the washroom, but there is no doubt in his mind there was never an argument about it. It is also possible that he could have been alone in his room on occasion with H.E.P. because he spent time with each of the children individually and collectively, but he has no specific recollection of it being his bedroom and no recollection of B.A.K. disturbing them. b. With respect to H.J.P., he denies having also touched him in a sexual manner whatsoever. He did go into the boys’ room occasionally at night to tell them to go to sleep or to read stories, but he did not crawl into bed with H.J.P. and did not fondle his penis. His recollection is that B.A.K. was usually on the bottom bunk because he was so young at the time. If he read books to the boys he would sit on the floor. There was evidence that the bunks were small. He further denies showing him pornography.

[97] With respect to allegations of assault and unlawful confinement:

a. He denies H.E.P.’s allegations of holding her head back and pouring soap down her throat. He acknowledges that the children would be threatened by the parents of washing their mouth out with soap if they misbehaved, but he never actually did it. b. He acknowledges sending the children to their rooms for “time-outs”, but not taping them or restraining them in any manner. He says that the children were sometimes “escorted” to their room, but not as described by H.J.P. When they were younger and were having a tantrum, they may have needed carrying to their room. He has no recollection of grabbing a child by the arm and taking them to their room. c. His evidence was that time-outs would be used for biting, kicking, and hair pulling of other siblings, and for general misbehaviour or temper tantrums. He would either tell them to go to their room until further notice or tell them they had a 15-minute time-out. d. He testified that neither H.E.P., nor her brothers were bad children, but they did have sibling arguments that required intervention and other occasional behaviour that required correcting. e. He acknowledges having spanked B.A.K. with his hand only, but not with objects. At no point did he spank B.A.K. to the point that he could not sit down. He testified that spanking was reserved for severe instances and behaviours. T.G. also spanked the children. The only example he could recall of B.A.K. being spanked by him was when he snuck out of the house at a very young age (estimated to be between 3 to 5 years old) and was running down the road. He had wanted to go somewhere with his brother, but his parents said “no”. He left the house anyway. Neither the Accused nor T.G. realized that he had left the house until the police and child and family services arrived because this young child was found wandering the street alone. He was spanked B.A.K. to reinforce the seriousness of his actions. He was spanked standing up, with a hand over his pants, to his bottom. He was then sent to his room. He remembers this occasion specifically because police came to the house. f. He acknowledges that there were issues with B.A.K. eating his food. This was dealt with by having him sit at the time for an additional 15-20 minutes. If he still did not eat, they would have a discussion about what consequences would be imposed if he did not finish his food by the end of the 15-20 minutes. Consequences included being sent to his room without his x-box, being grounded, and the like. This applied to all children. g. He acknowledges having checked all of the children’s teeth from time to time. Generally, all children were checked at the same time. B.A.K. had particular issues with his teeth. He tended to lose caps off his teeth, which they would often check for. One of the children had a filling fall out once. H.J.P. and H.E.P. had cavities from time to time but not as severe as B.A.K. This is something that both the Accused and T.G. did with the children.

[98] The Accused also testified about his relationship with the children’s mother, T.G. He described the separation as “amicable”. Both had trust issues with respect to the other for various reasons. He testified that they were not seeing eye to eye on much as the relationship was breaking down. His evidence is that they decided they could be better parents separately than together. They also agreed that it would be best for T.G. to move back to Atikokan with the children where she would have family and friends to support her and the children. T.G. could not afford to move out right away and also needed time to get housing sorted out, so they lived separate and apart under the same roof for some months before she left.

[99] The Accused’s evidence is that when he agreed to the move, T.G. had assured him there would be a schedule for him to see his two children on mutually agreeable weekends and holidays. The discussion only pertained to his two biological children, because H.J.P. and H.E.P. were no longer living with them.

[100] Post separation, the Accused’s evidence is that he exercised parenting time with his two children, B.A.K. and R.K. occasional weekends in Atikokan, but it was not as often as he had hoped. T.G. made it clear to him that he was to stay away from all of her family, which he assumed included her two children (H.E.P. and H.J.P.), even though she did not specify this. the Accused’s evidence is that if he did not respect her wishes, she threatened he would not see his boys, and so he had to make the difficult decision to not contact H.E.P. and H.J.P. in order to preserve his relationship with his two biological children. At this point, H.E.P. had moved to her father’s house, but later moved back in with her mother.

[101] The Accused’s evidence was that he can only guess as to T.G.’s reasons for telling him to stay away from her family. He believed this included her having some post-partum depression and needing her family to accept her narrative for the breakdown of the relationship. He just wanted to keep the peace and did not challenge her. T.G. started a new relationship and so did he. He speculated that she may have been upset about this. What started as an amicable separation did not end up that way.

[102] Until these allegations, the Accused believed that he had a good relationship with H.E.P. and H.J.P. At no point did H.E.P., H.J.P., or T.G. confront him directly with these allegations. He testified that he was completely blindsided by these charges. He does not know what would have caused the children to make these allegations. He believed they had a typical family life. When put to him by the Crown that he was “in control of the household”, was verbally abusive to the entire family, and was physically abusive, he denied this was the case. He felt that he and T.G. were a “team”. They would often discuss consequences to be imposed on the children together. While they did fight from time to time about issues such as parenting, he believes the children’s perceptions of those arguments were not reflective of reality.

[103] The last time he saw his two children was approximately late spring/early summer before being arrested. He was arrested in November 2021. There was no evidence as to why his contact with the children was so infrequent. After the arrest, he had ‘no contact’ terms in his release order, although the terms did not apply to R.K.

Analysis

[104] In accordance with the principles referred to above, I must approach my analysis with the presumption that the Accused is innocent, and the Crown must establish his guilt beyond a reasonable doubt.

Do I Believe the Evidence of the Accused?

[105] As directed by W. (D.), I begin my assessment with the evidence of the Accused. This assessment is not an easy task. His evidence is essentially that none of the incidents occurred.

[106] I do not believe the evidence of the Accused in its entirety and I agree with the Crown that there are some difficulties with his evidence that gave me some cause to question whether he was being completely honest and forthright.

[107] Specifically, I am concerned that the Accused was minimizing what actually transpired in the home. In light of the children’s evidence, I was left the impression that the Accused minimized the seriousness of the arguments he had with T.G. during the relationship. The Accused paints a picture of a regular family household, with arguments between the parents as the relationship broke down, but in which for the most part they functioned harmoniously as a team. I do not accept this to be the case. While these arguments do not form part of the facts that need to be proven by the Crown to support the charges, they are part of the narrative led by the Crown with respect to the dynamics of the household.

[108] The context for the allegations and the family dynamics are important to understanding what may have been happening in this household. This evidence is admitted and considered for this purpose, and with respect to the credibility of the Accused. The children testified that they not only heard frequent yelling and screaming, but also items being thrown and/or broken. There was police involvement of some sort. I agree with the Defence that without the evidence of T.G., it would be inappropriate to speculate as to the reasons for the arguments, that the Accused was the more verbally abusive partner during these arguments, or that he was the one doing the throwing or breaking of items. However, I do accept the children’s evidence that the relationship was far more volatile than the Accused acknowledged during his evidence. Each child testified to being afraid when their parents were arguing. They would go to their rooms until the arguing settled down. I believe that the arguments were such that the children were afraid and felt the need to hide in their rooms.

[109] I was also left with the impression that the Accused was not being completely forthright about post-separation events. Particularly, the reason why T.G. would not permit him to see or speak with H.E.P. and H.J.P. These were children he had helped raise and had been in a parental role towards for many years. I heard evidence as to his assumptions, but not that he ever asked T.G. why he could not see them. The fact that the Accused also saw his own biological children infrequently, with little offered by way of explanation, caused me to believe that the relationship with T.G. was not as harmonious as the Accused initially led the Court to believe. While ultimately in cross-examination he acknowledged the relationship did not end up harmonious, this was not the impression he sought to offer in his examination-in-chief. I acknowledge and agree with the Defence argument that after the fact conduct is generally not admissible and has limited value. I further agree with the Defence that it is admissible and relevant to the extent of what may have been communicated by T.G. as the reasons for him not being able to see H.E.P. and H.J.P., and with respect to his credibility about this issue. It may have also been relevant if the reason for the Accused’s infrequent contact post-separation with B.A.K. was related to the allegations in this proceeding, but T.G. did not testify and the Accused’s evidence was somewhat evasive as to the reasons for his lack of meaningful contact with his children post-separation.

[110] Furthermore, and more importantly than the other two points raised, after hearing the evidence of the three children and the Accused I am left with the impression that physical discipline of the children happened far more frequently than the Accused acknowledges. Whether or not it happened in the manner and to the extent described by the children is a different issue to be determined.

Steps 2 and 3 – Am I Left In Doubt?

[111] Despite the concerns I have with respect to the credibility of the Accused on certain issues, when I consider his evidence overall, and some of the frailties associated with the evidence of the complainants, in the context of all the evidence of this case I cannot completely discount his denial of the allegations and I am left with reasonable doubt as to all of the allegations, save and except count #16 (assault, smacking H.J.P. across the face).

[112] It is often difficult as a trial judge to explain with precision why we are left with the impressions we have of evidence. It is not as simple as saying that I believe one witness over another. In this case, I wish to make it clear to the complainants that my decision should not be taken to mean that I believe the Accused over them. I am also not saying that what they allege with respect to physical and sexual abuse, either did, or did not happen to them. If I were boiling it down to the most simplistic terms, it means that after hearing all four witnesses testify (complainants and Accused), and after carefully reviewing and considering all of the evidence led in this case, I am not sure enough to convict. Just as I have outlined concerns with the evidence of the Accused, there are some concerns I have with respect to the evidence of the complainants, such that the Accused’s denials and explanations of events could be just as consistent with what actually happened as that of the complainants. As outlined earlier, if I am uncertain as to what happened, then the Crown has not met the burden of proof beyond a reasonable doubt and I must acquit.

Why I Have Doubt:

[113] Firstly, in analyzing the evidence I am mindful of the principles I have outlined above with respect to assessing the evidence of child witnesses and witnesses who are now young adults but were children at the time events are alleged to have happened. The alleged events took place between 2007 and 2017, being 6 to 16 years before this trial occurred. The allegations were first reported to police in 2021, just over 2 years prior to trial. Given the ages of the complainants when the events are alleged to have happened, it only stands to reason that this passage of time, combined with their young age will have impacted their memories to a certain extent.

[114] Given the passage of time and the young ages of the complainants, I was not concerned by any inconsistencies in their evidence with respect to timing of the alleged events, sequence, location in terms of which house, or frequency. This did not impact my assessment of their evidence.

[115] What I am concerned about is this. There are circumstances that may impact on the reliability of the complainants’ recollections in that it makes it difficult for me to know what portions of their evidence came from their lived experiences with the Accused, and what came from conversations with others or ‘phantom’ memories (to use the Defence counsel term) and assumptions that have been made as the witnesses have tried to fill in gaps in their memories. There were also some internal and external inconsistencies in the evidence of the complainants that are not, in my view, minor or non-material. At best, some of these inconsistencies may be attributed to unintentional “phantom memories” or confusion with what they have heard from others (including each other), while at worst, other inconsistencies they may have been designed to attempt to bolster the case of their sibling and do affect credibility.

[116] I agree with the Defence submission that there is sufficient evidence to be concerned about the degree to which conversations between complainants and with their mother may have tainted the reliability of their recollections. There is also sufficient evidence to cause me concern that the complainants either do not recall the extent of these discussions or were minimizing them. While it is understandable that the complainants would not recall all details of all conversations, on the facts of this case, there is concern that memories may be impacted by these conversations.

[117] In drawing these conclusions, it is not one concern in isolation that gives rise to doubt, it is the cumulative effect of all concerns. The concerns are such that the Crown similar fact application becomes moot to a large extent, although on the facts of this case, I do share the Defence concerns with respect to much of what the Crown argued was similar facts. With respect to other uncharged conduct, even if I were to use it in the manner sought by the Crown, I would still have doubt.

[118] Some of the concerns with the evidence that gives rise to doubt include:

a. I am unclear and uncertain as to the extent of the children’s conversations with each other and with their mother, and the extent to which this has impacted their recollection of events: i. While each of the complainants insist that their mother provided them with very little detail about the allegations of their other siblings, and did not influence their memories, each of them also testified that conversations with their mother about their allegations, and about some allegations of their siblings that they say triggered memories or impacted how they viewed the alleged events. There were conversations each child had separately with their mother, and conversations involving two or more of the complainants with their mother. H.E.P. testified that she recalls speaking with her mother and H.J.P. before going to the police to make sure they knew what they were talking about because ‘they didn’t want him getting away with anything’. B.A.K. recalls a conversation with his mother and siblings. In certain instances, when pressed in cross-examination, it was either revealed or became questionable as to whether something was an actual memory or was told to them by their mother or a sibling. ii. Of concern is H.J.P.’s evidence with respect to his recovered memories of the Accused’s sexual assaults against him. H.J.P.’s evidence is that it is through discussions with his mom that he came to remember the sexual incidents that he had not remembered for a few years. He testified that it took his mom telling him about the Accused coming into his bedroom and B.A.K. being jealous about the attention H.J.P. was receiving from his father for the memories to return to him. He believes they are real because of the emotional impact they have on him. I had the impression from H.J.P.’s evidence that this conversation happened at a similar time to, or following his mom telling him that H.E.P. had been “raped” by the Accused. Recovered memories are to be approached with a high degree of care, guided by common sense. The criminal burden and standard of proof beyond a reasonable doubt is to be foremost in my mind in considering this evidence. H.J.P. struck me as balanced, he testified without any overt animosity towards the Accused, and I had the impression he was doing his best to remember accurately the events to which he was testifying. However, ultimately, the circumstances in which the memories were recovered, combined with all other evidentiary concerns I set out in this decision with respect to the evidence of H.J.P., combined with the Accused’s denial, leaves me uncertain. This is also one occasion in which confusion over which house the sexual assaults were alleged to have occurred did create doubt as to the reliability of H.J.P.’s memory. H.J.P. testified in his examination-in-chief, that he was sexually assaulted by the Accused on three or four occasions while living in Thunder Bay at the Empress house. In cross-examination, when confronted with his statement to police in which he said he did not remember if the abuse happened in Thunder Bay, H.J.P. acknowledged that he did not have a concrete memory of it happening at the Empress house as he always remembers it happening in a bunk bed and there was no bunk bed at Empress. If there was no memory of events in Thunder Bay, I am left to question why H.J.P. would have actually put a number on the times he says abuse happened in Thunder Bay. B.A.K.’s recollection of his father coming into their room a couple of times does not alter this conclusion. Firstly, the Accused testified that he and T.G. shared the bedtime routines for the children. H.J.P. testified that for the most part his mom tucked them in, but occasionally the Accused did also. All that B.A.K. recalls is the Accused coming into the room and approaching the bottom bunkbed where H.J.P. was. He did not hear anything. He did not look to see if he was sitting on the bed, laying on the bed, or sitting on the floor. B.A.K.’s recollection could be just as consistent with seeing his father come to tuck in H.J.P. as it could with something more nefarious. The evidence was that when B.A.K. was on the bottom bunk, the Accused tucked him in. In light of all these concerns I must accept the Defence submission that there is the possibility that H.J.P.’s allegations can also be an innocuous event that is later mischaracterized, intentionally or unintentionally because of H.E.P.’s allegations. iii. Each complainant has had conversations with the other complainants about some of the allegations. While, again, it is possible that these conversations have triggered actual memories, some memories could not have been real. For example, H.E.P.’s recollection that she had been told by H.J.P. that the Accused touched H.J.P.’s “bum” and showed him his penis. H.J.P. said that never happened, and therefore he would not have said it. The complainants also could not always recall details of conversations with each other, compounding the difficulty in assessing the extent to which recollections have been affected. B.A.K. also could not recall, without being pressed in cross-examination that his mother had told him about preventing assaults on H.E.P. by walking past or knocking on the bedroom door. B.A.K. also testified that he speaks with his siblings almost daily. Not necessarily both of them, but he speaks to H.J.P. more frequently than H.E.P. H.J.P. said he does not speak with his brother often. Their evidence is inconsistent. iv. H.E.P. testified that the Accused fought with her mom a lot and she did not know what they were fighting about. She then went on to state that they would often fight because mom thought he was being too aggressive with them. It was unclear whether this was an actual memory, or something she had been told by her mom. I had similar concerns with respect to H.J.P.’s recollection of these arguments. v. In recounting the dish soap incident, H.E.P. initially testified that she assumed her mother took her to the hospital, even though she has no specific recollection of it. This arose in the context of her evidence that she remembers this incident because she was vomiting, it burned, and she went to the hospital. She later acknowledged in cross-examination that her mother told her she took her to the hospital. She told her this right before H.E.P. went to the police to give her statement. H.J.P.’s recollection of the soap incident gave me cause for concern that he may have been confusing what he actually remembered and what he had been told. H.J.P.’s evidence was that he had a recollection of his sister being sick and gagging, although he did not see her throw up. He remembers her coughing and bubbles in her mouth. H.J.P. testified that the Accused poured dish soap into their mouths as punishment and that is how he knew what it was. When pressed in cross-examination he acknowledged that he had no memory of it actually happening to him, or of having seen it happening to one of his siblings. This led me to conclude that he must have been told about it by someone, as opposed to it being an actual memory. H.E.P.’s evidence in cross-examination was that H.J.P. was outside with a friend. When confronted with her statement to police in which she said that H.J.P. was probably in the room, she admitted that she was not sure where he was, and that she did not remember his whereabouts. This gave me the impression that H.E.P. was trying to fill in blanks in her memory during her evidence with answers that seemed logical to her. H.E.P. candidly acknowledged that she spoke with H.J.P. about the soap incident and told him what she remembered about it. She indicated that they then tried to piece together their memories of it by looking at what each of them remember. Given the problems I have identified with their evidence on this issue, this gives me further cause to question their actual independent recollections. Overall, with respect to count #1, the Accused does not deny threatening to wash the children’s mouth out with soap. He does deny pouring it down H.E.P.’s throat and causing her to vomit. H.E.P. testified that she recalls both parents threatening, but her mom being the parent who actually placed dish soap on her finger and put it in H.E.P.’s mouth, but not a lot. T.G.’s evidence may have been useful as to what happened and what conversations she has had with the children about it. In the absence of this evidence, the evidentiary issues surrounding this allegation leave me with doubt. vi. H.E.P.’s evidence was that her mother would ask her various questions about the sexual abuse allegations to help give her the detail she had a hard time speaking about as a child until she became older and understood sexual matters more. She would ask questions such as, “did he do …this?”, asking a specific question (although no specific example given) and she would answer by saying yes or no. I appreciate that these conversations occurred after H.E.P.’s disclosure of the alleged abuse. It is understandable given H.E.P.’s age that she may not recall specifics of these discussions or questions, and it is also understandable that a parent would want to understand what has happened to their child, and help their child understand what has happened to them, but I cannot discount concern as to whether certain events may have been unintentionally suggested to H.E.P. through leading questions. Without T.G.’s evidence, the concern remains. vii. T.G.’s evidence may have been helpful to shed light on the nature of the conversations she had with the complainants. There appear to have been discussions that went beyond the allegations in this case, designed to portray the Accused in a negative light, including that H.E.P. and H.J.P. were aware of the affair(s), and H.J.P. was told by his mother that the Accused beat her. The latter was inconsistent with H.J.P.’s memory of verbal arguments. None of the children have any memories of physical assaults against their mother by the Accused. H.J.P. recalls only police coming on occasion, but he testified that his mother helped fill in the gap of why. Regardless, it is possible that the conversations between T.G. and her children, or as between the children themselves were nothing more than a mother trying to ascertain what happened to her children and support them, and for siblings to support each other through traumas suffered. The difficulty is that with the evidentiary issues I have identified, I simply do not know which it is.

b. With respect to H.E.P., there are various instances in which I was left with the impression that she was making assumptions and trying to fill in gaps in memory rather than testifying as to actual memories. For example, when she heard things being thrown during arguments, she assumed it was the Accused even though she did not see. With respect to the “naked thing” incident, she assumed that her mom confronted the Accused, but she did not actually witness it. When testifying about the dish soap incident, H.E.P. was between 3 – 5 years old when this is alleged to have happened, but in her evidence, she testified that “she doesn’t know if he was on something” at the time it happened, in reference to the Accused There was no factual basis given for that assumption. With respect to the blindfold, she assumed that the Accused used it so that she could not describe things better. With respect to teeth checking, even though the Accused’s evidence is that all children had their teeth checked regularly because of concerns, particularly with respect to B.A.K., and B.A.K. acknowledged having his teeth checked by both parents, H.E.P.’s evidence was as to her assumption that the Accused checked B.A.K.’s teeth almost every time he assaulted her so he had an alibi for what he was doing.

c. With respect to the forcible confinement allegations, the accounts of H.E.P. and H.J.P. with respect to duct taping are internally and externally inconsistent. H.E.P. says that it happened once, it happened to both H.J.P. and her, H.J.P. was present when it happened to her, and that she remembers seeing him tied up with tape and he saw her tied up too. She recalled removing the tape after being placed in her room, and H.J.P. telling the Accused, causing her to get in more trouble. H.J.P. has no recollection of seeing it happen to his siblings. He only remembers it happening to him. While at trial he said it only happened once, in his statement to police he said it happened a lot when they were young. When confronted about this inconsistency at trial he indicated this was his memory at the time, but now he only remembers one event. He remembers telling his sister about it when they had their initial conversation in the garage, causing me to question whether H.E.P. is confusing an actual memory with a conversation with her brother. The Accused denies ever having duct taped either of the children. Given the challenges with the evidence, I am left with doubt as to the reliability of the complainants’ recollection of these incidents. Because of concerns as to the reliability of the complainants’ recollection of these events, I also have doubt as to whether the allegations of otherwise being assaulted with an aggressive grabbing, and then unlawful confinements to their rooms are in fact that, or a mischaracterization of a regular childhood punishment of being placed in their bedroom for misbehaviour. The evidence is that this generally happened in the context of a misbehaviour. H.E.P. said her mother was present when the Accused was aggressive with them, grabbing them, while H.J.P. says she was not. If T.G. was present for these alleged incidents, her evidence may have assisted in assessing the credibility of the Accused and reliability of the complainants’ recollections about them.

d. With respect to the assaults alleged to have been committed against H.E.P. and H.J.P., I accept that physical discipline was a common occurrence in this home. I accept that unkind things were said to the children far too often. I accept that they were frequently yelled at. However: i. H.E.P.’s recollection was far too generic to allow me to assess and conclude that the physical discipline against her exceeded reasonable discipline as outlined in s. 43 of the Criminal Code. If the Accused had smacked her in the mouth, in my view that would exceed the parameters of what is reasonable, but H.E.P. had no specific recollection of it and neither B.A.K. nor H.J.P. ever saw her being hit. ii. Despite all of the frailties with the evidence, with respect to count #16, I do not have any doubt as to the accuracy of H.J.P.’s recollection of this event. H.J.P. struck me of having a vivid and detailed recollection of this event. An open palm slap across the face for accidentally breaking a bowl is not reasonable within s. 43 of the Code. There is no evidence that leads me to conclude this memory may have been influenced. Otherwise, similar to the allegations of H.E.P., counts #14 and 20 are not specific enough for me to conclude beyond a reasonable doubt that assaults, as opposed to reasonable “spankings” occurred.

e. Specifically with respect to B.A.K.’s allegations of assault and assault with a weapon, the following is cause for concern as to reliability and/or credibility of recollections: i. H.J.P.’s evidence is that B.A.K. initially told him about getting a “tap on the ass”. B.A.K.’s police statement given two months after H.J.P. and H.E.P.’s statements, and his evidence at trial was that he received beatings so bad that he could not sit. ii. B.A.K. thinks he told his siblings about being spanked. Again, on the facts of this case I cannot negate the Defence concern as to the potential for conversations that B.A.K. had with others that may have impacted or influenced his memory over time. iii. B.A.K.’s evidence is that he only received spankings in his room, whether it was with an object or the Accused’s hand. There is no evidence that his siblings were present, and in fact, he assumed they were probably in their own bedrooms when the spankings were happening. In light of this evidence, there is cause for concern that H.J.P. and H.E.P.’s evidence with respect to the alleged assaults against B.A.K. may not have been based on what they witnessed, but perhaps what they have been told or assumed. It is also possible that B.A.K., given his age and the circumstances, may not have remembered spankings outside of his room or his siblings being present. The challenge is that I do not know which it is. iv. H.J.P.’s evidence was that he spoke with his sister about B.A.K. ‘being annoying when he was little’ and getting slapped so hard “his ass was cherry red”. H.J.P.’s evidence was also that before speaking with his sister he remembered this as a mundane “parenting thing”. As a result of the conversation with his sister he came to remember it as more of a beating. B.A.K.’s evidence that he did not show his bottom to anyone after being hit suggests that H.J.P. could have only known that it was red if someone had told him. This was not something he witnessed. v. Ultimately, I am left with doubt as to whether the physical discipline received by B.A.K. crossed the line to amount to an assault.

f. With respect to the allegations of sexual assaults against H.E.P., I have doubt for reasons already expressed with respect to the reliability of H.E.P.’s recollections. In addition: i. I do not accept the Crown’s argument that B.A.K.’s recollection of walking in on the Accused and H.E.P. is corroborative of H.E.P.’s allegations for the following reasons: A. The most that B.A.K. remembers is two occasions in the McKenzie house when he walked into his parents’ bedroom and saw H.E.P. and the Accused sitting on the bed. There was nothing special about it that he saw. He did not see the Accused standing or H.E.P. kneeling or laying on the bed. The Accused was clothed, and he could only see part of H.E.P. B. At trial, B.A.K.’s evidence is that it was H.E.P. who told him he prevented assaults by knocking on the door. When asked in cross-examination whether it was his mother who told him this, B.A.K. denied it. When confronted with an excerpt from his police statement that his mother told him there were times he saved his sister, he said both may have told him. This again contributed to uncertainty as to whether B.A.K. had an independent recollection of these events or was confusing what he had been told for an actual memory. ii. I also do not see the parrot bucket details as corroborative. There have clearly been conversations between the siblings. The fact that each of them remember the bucket does not sway me. iii. With respect to the allegation that the Accused watched H.E.P. in the shower, this does not form part of the sexual assault allegation, but the narrative surrounding it, and for the Crown’s characterization of the Accused having engaged in sexually inappropriate behaviour regularly. Again, this allegation is consistent with something that either could have been innocuous but now mischaracterized or could have been more nefarious. I simply do not know. T.G.’s evidence with respect to whether there was an argument over the accused going into the bathroom while H.E.P. was showering could have either called into question the Accused’s denial of this or supported H.J.P’s evidence. I make no negative inferences from the fact that she did not testify, but on multiple occasions the complainants testified she was present and saw what they saw, and her evidence could have seriously called into question the credibility of the Accused on many of these issues. iv. H.E.P. testified that she gained some clarity surrounding the alleged sexual assaults through flashbacks and nightmares that happened at least two years after her initial disclosure to her mother and confrontation of the Accused. over the allegations. I have little evidence about the flashbacks and nightmares. The Defence concern about them becomes less significant and more consistent with H.E.P.’s narrative if they did in fact come after the independent disclosure with details provided to T.G. H.E.P. says the disclosure is why her mother moved her to Atikokan. the Accused says there was no disclosure that he was confronted with and there were other reasons for H.E.P.’s move. T.G.’s evidence confirming whether the initial disclosure was made, could have again assisted with this issue and in assessing the overall reliability and credibility of H.E.P. and the Accused.

Disposition

[119] For the above reasons, I find the Accused guilty on count 16, being an assault on H.J.P., contrary to s. 266 of the Criminal Code, and not guilty on all remaining counts on the indictment.

“Originally signed by”

The Hon. Madam. Justice T. J. Nieckarz

Released: April 10, 2024