NEWMARKET COURT FILE NO.: CR-22-91101331-0000/CR-23-51

DATE: 20240906

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

K.L.

I. Denisov, for the Crown

J. Stilman, for the Defendant

HEARD: July 22, 23, 24, 25, 29, 30 and 31, 2024

REASONS FOR JUDGMENT

MCCARTHY J.:

The Charges

[1] K.L. stands charged with one count of sexual interference against the person of M.B. and one count of sexual interference against the person of S.R. both contrary to s. 151 of the Criminal Code. The said offences are alleged to have taken place between August 2017 and January 2022 in the case of M.B., and between August 1, 2021 and August 31, 2021 in the case of S.R. There is no dispute that both M.B. and S.R. were under the age of 16 at the time of the alleged offences.

Overview

M.B.

[2] K.L. first met M.B. in August 2017. The former was a director at a sports/hockey camp located in rural Ontario (referred to as “H camp”). The latter was a participant in H camp. When M.B. first arrived at H camp, he was only 7 ½ years old. M.B. returned to H camp in both 2018 and 2019. H camp did not operate during the 2020 pandemic. M.B. returned to H camp once more in 2021.

[3] In approximately the fall of 2018, there began an exchange of messages between K.L. and M.B.’s mother (“A.L.”) leading to K.L. becoming a more regular part of M.B.’s life outside of H camp. K.L. first attended one of M.B.’s minor hockey games in February 2018. The relationship between K.L., A.L. and M.B. soon flourished, and came to feature regular communication and visits. Over the next 3 ½ to 4 years, M.B. saw K.L. often. In addition to the time spent at H camp, there were trips to Mont-Tremblant and Blue Mountain (both in the company of A.L.) and to Denmark (in the company of K.L.’s girlfriend). The relationship between K.L. and M.B. also encompassed attending NHL hockey games, sports activities and camps. On many occasions M.B. would stay overnight as a guest at K.L.’s residence in York Region. These are referred to as “the sleepovers”.

S.R.

[4] S.R. attended H camp in August 2021 when he was 10 years old. He was dropped off and picked up by his parents. S.R. occupied an upper-bunk bed in one of the guest cabins. There were five other boys in his cabin. At least two counsellors slept in the cabin in a separate room. S.R. encountered K.L. on the tennis court, at the hockey arena and while playing billiards. Following S.R.’s departure from H camp, his mother (“J.R.R.”) noticed his laundry bag was missing. She managed to obtain a contact for K.L., who found the bag and delivered it to J.R.R.’s home in early September 2021.

Trial Evidence

[5] The court heard from both complainants. Their respective evidence was received through section 715 statements to the police and remotely in open court. Those s. 715 statements are referred to as the “M.B. statement” and the “S.R. statement” respectively. The court also received the evidence of A.L. and J.R.R., both of whom can be described as disclosure witnesses. The court heard evidence from the investigating officer, M.V.W. Lastly, the court heard the evidence of the accused K.L.

The Allegations

M.B.

[6] M.B. contends that during the first few sleepovers at K.L.’s residence, K.L. began touching him on the bum while they were sleeping in K.L.’s double bed. This touching was often preceded by back massages and the use of a gel or lubricant, which M.B. recalls being “Kelly’s Original”.

[7] The touching eventually progressed to genital touching. The touching would take place while M.B. might have appeared to be asleep; sometimes he would wake up to the touching. The touching would stop when M.B. moved or shifted. The touching took place even on the occasions when K.L. slept on an air mattress next to the bed.

[8] There were several of distinct incidents, such as the “rape” on the couch in the living room when M.B. woke up with pain in his bum area and feeling K.L.’s hands around his waist, which led him to believe that K.L. had inserted his penis into his bum. There was the “towel incident” when M.B. woke up in K.L.’ s bed to find a towel underneath him, causing M.B. to freak out and run downstairs. There was a further incident, when M.B. awoke to discover some kind of liquid in his pants before a hockey game.

[9] M.B. also provided the following details:

• K.L. touched his bum on more than 50 occasions;

• M.B. attended between 10-15 hockey games with K.L.;

• the first sleepover was in December 2018 for a Maple Leaf’s game;

• sleepovers took place over the March Break and on K.L.’s Professional Activity (“PA”) days;

• M.B visited K.L.’s home several dozen times;

• it was K.L.’s idea to sleep in the same bed and to provide M.B. with back massages;

• K.L. walked in on M.B. three times while he was showering after sporting activities;

• the first touching incidents would have taken place between April 2019 and August 2019 and prior to the trip to Denmark;

• the “penetration and rape” incident occurred after the Denmark trip, on the left-hand side of K.L.’s living room couch;

• M.B. was reluctant to divulge the abuse to his parents for fear that something bad would happen to K.L.;

• M.B. began acting out late in 2021. His mood and attitude changed. He felt agitated. He deleted K.L. from his social media two weeks before his disclosure. Following a fit of rage when he had a fight with his sister, he was confronted by his mother and finally disclosed the abuse.

S.R.

[10] S.R. recounted that one evening at H camp in August 2021, shortly after he had encountered his friend and K.L. conversing outside the cabin, he returned to his upper bunk. S.R. was in his sleeping bag, which he left partly unzipped because it was warm in the cabin. The others in the cabin were asleep. The counsellors were either outside or behind the closed door of their room. There was some light shining into the cabin through a window near his head.

[11] S.R. was still awake when he felt somebody touching his bum and penis beneath his pajama shorts. He recalls that the touching happened twice. He opened his eyes and turned to see K.L. reaching over the top railing. S.R. could see K.L.’s head, arms, and a portion of his torso. S.R. felt disgusted and wanted to yell out but was afraid to do so. Instead, S.R. remained quiet, but shifted around to put himself out of reach. The touching then stopped, and K.L. left the cabin.

[12] At lunch the following day, S.R. confided the incident to his friend M, who repeated the information aloud. K.L. intervened and asked if S.R. was being disgusting. S.R. denied that he was being disgusting and from then on, he simply avoided contact with K.L. K.L. paid a visit to S.R.’s family home to drop off his laundry bag in September 2021. About a week after H camp, S.R. reported the incident in the H camp cabin to his parents. Later, S.R. saw K.L.’s photo from the O.P.P. media release on the M.B. matter and advised his parents that this was the person who had touched him at H camp.

The Crown

[13] The Crown contends that the narrative of the two complainants was entirely credible and was supported by both the corroborative evidence of their respective mothers and the salient parts of K.L.’s narrative itself. The Crown submits there are similar enough facts punctuating the two complaints that a finding of similar fact evidence should follow and assist the court in entering twin convictions.

The Defence

[14] K.L. denies the allegations. The Defence argues that the accusations of both complainants are untrue, or alternatively that they have not been established to have occurred beyond a reasonable doubt. The Crown evidence suffers from demonstrable internal and external inconsistencies, exaggerations, and problems of plausibility. There are insufficient connecting elements in the two alleged incidents to warrant a finding of similar fact evidence.

Governing Authorities

R. v. W. (D.)

[15] Because K.L. testified and gave exculpatory evidence at trial, the court is bound to engage in the three-step process set down by the Supreme Court of Canada in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. First, if I believe K.L., I must acquit; second, if I do not believe the testimony of K.L. but am left with a reasonable doubt by it, I must acquit; third, even if I am not left with a reasonable doubt by the evidence of K.L., I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of K.L.’s guilt.

Motive to Fabricate by the Complainants

[16] As for the issue of the complainants’ motive to fabricate, I am guided by the words of Doherty J.A., who stated as follows at paras. 120-121 in R. v. Batte 2000 5751 (ON CA), 2000, 49 O.R. (3d) 321 (C.A.):

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’s credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

Evidence of Young People

[17] I am also governed by the authorities that pertain to the evidence of both M.B. and S.R., who were minors at the time of the events they were recounting and remained minors at the time of their respective statements and trial testimony. In R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55 Wilson J. stated: "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 has happened to them and who did it."

[18] In R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at pp. 132-134, McLachlin J. explained how courts should approach assessing the evidence of children:

The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

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.

Delayed Disclosure

[19] In R. v. D.D., 2000 SCC 43, [2002] 2 S.C.R. 275, the Supreme Court of Canada discussed the issue of delayed disclosure in sexual abuse cases, specifically writing that, "a delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant": para. 65. In that case, the complainant, who was 5 or 6 years old when she was sexually assaulted, took 2.5 years to report the allegations.

Similar Fact Evidence (SFE)

[20] The Crown seeks a ruling that the two alleged offences contain similar enough components to warrant a finding of similar fact evidence. That application was opposed by the Defence.

[21] The Crown argues that the following constitute similar facts:

• K.L. targeted both victims through H camp;

• The assaults were proximate in time;

• Both victims were young boys;

• K.L. gave special attention to the victims and took photos of both of them at H camp;

• K.L. engaged in communication with both victims’ mothers;

• K.L. attended the residence of both victims;

• K.L. either attended (in the case of M.B.) or expressed an interest in attending (in the case of S.R.) his victims’ minor hockey games;

• The alleged touching took place when K.L. believed his victims were asleep. It would stop when the children would move around;

• The alleged touching happened at night;

• The alleged touching began on the victims’ buttocks and progressed around to their penises.

[22] The Crown also argues that there is no suggestion of collusion. While there was a vague suggestion that the victims might have briefly met at one point, there was no relationship between them and certainly no opportunity for them to discuss or concoct a version of events.

Test for Similar Fact Evidence

[23] In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court of Canada recognized that similar fact evidence is admissible where the Crown establishes on a balance of probabilities that the probative value of the evidence as it relates to a particular issue in the case outweighs the prejudicial effect. The test requires judicial consideration of the (a) probative value of the evidence; (b) potential prejudicial effect and (c) whether probative value outweighs the prejudicial effect: see Handy, at paras. 99-101.

[24] To determine probative value, the trial judge must consider the following factors:

(1) Potential for collusion

(2) Identification of the issues in question

(3) The factors connecting the similar facts to the circumstances set out in the charges (“the connecting factors”). Handy provides a non-exhaustive list of the following factors to be considered at para. 82:

• the proximity in time of the similar acts;

• the extent to which other acts are similar in detail to charged conduct;

• the number of occurrences of the similar acts;

• the circumstances surrounding or relating to the similar acts;

• any distinctive features unifying the incidents;

• intervening events;

• any other factor which would tend to support or rebut the undermining unity of similar acts.

(4) The strength of the evidence that the similar fact evidence actually occurred.

Similar Fact Evidence Analysis

[25] I am not prepared to find that the Crown has met the high onus for establishing similar fact evidence. The Crown has persuaded me that there is no real evidence of collusion. The essential elements of the two alleged offences are of course the same. Nonetheless, I am not persuaded that are sufficient connecting factors between the two distinct series of events to establish probative value.

[26] One, the alleged offence against S.R. was a one-time event, while the alleged offences against M.B. were many and took place over a prolonged period. Two, unlike those involving M.B., any offence against S.R. took place outside the context of a wider family relationship. The Crown’s submission that K.L. was angling to establish a relationship with S.R.’s family was not established by the evidence. Three, K.L.’s relationship with S.R. was fundamentally different than that with M.B. K.L. travelled with M.B., took him to multiple sporting matches, attended his minor hockey games, met and gained the trust of his extended family, welcomed him for over a dozen sleepovers. Any relationship with S.R. was short-term and fleeting and unfolded only at H camp. Four, the alleged assaults took place while K.L. and M.B. shared a bed or a bedroom, rather than on a top-bunk bed. Five, the alleged assault on the couch was invasive and especially outrageous. At least one of the assaults on M.B. left a residue of liquid on his clothing, which he found disgusting. The alleged incident involving S.R. bore none of these qualities. Six, M.B. participated in a variety of sports-based activities with K.L., including golf, tennis, and 3-on-3 hockey, which were wholly independent of and unconnected to H camp. Seven, the alleged assault against S.R. took place, if not in a public place, then in a setting distinctly different than that provided by a bedroom in a private home. Eight, unlike the lone alleged assault against S.R., none of the alleged assaults of M.B. took place at H camp. It cannot be said that K.L. took advantage of his position as a supervisor at the camp to abuse M.B. Finally, unlike the incident with S.R., many of the “rubbing” assaults on M.B. involved the application of some kind of gel or lubricant.

[27] I am not persuaded that there are sufficient connecting factors between the two distinct series of events to establish probative value. There is therefore no requirement for me to consider the prejudicial effect of the evidence or to engage in any weighing between probative value and prejudicial effect.

[28] For these reasons, the Crown’s application for the court to consider that the alleged assaults against M.B. and S.R. share similar facts and to apply any propensity reasoning that may follow is dismissed.

R. v. W.( D.) Analysis – M.B.

Prong #1

[29] K.L testified and denied touching M.B. for any sexual purpose. I have considered K.L.’s exculpatory evidence in respect of M.B. carefully. I cannot accept it. In and of itself, it is woefully inadequate for me to base an acquittal upon.

[30] K.L. did not make for a good witness. The theme of his narrative soon became painfully transparent. K.L. did everything he could to overstate and overemphasize that he really did not enjoy a close relationship with M.B. or his family. Quite how he could say this was baffling to me. It flies in the face of all the evidence: K.L. welcomed M.B. into his home for sleepovers on dozens of occasions; he took him to NHL hockey games; he brought M.B. to Denmark with him; he spent vacation time with him and his mother; K.L. visited his family and was an overnight guest; he kept in regular contact with A.L.

[31] K.L. tried to fight off the suggestion that his home was full of items that would be an allurement to young sports fans like M.B.; he attempted to minimize M.B.’s enthusiasm for hockey; he insisted that when the sleepovers first started he did not own a Play Station system; K.L. clumsily advanced the notion that M.B. was somehow a problem child even suggesting that he was a “runner” and that he was afflicted by ADHD; K.L. offered an odd and completely unbelievable story as to why he would have kids’ bubble bath and toy figurines in the guest bathroom.

[32] In an obvious and almost desperate attempt to fashion a motive to concoct theory, K.L. either invented or overstated evidence of him reprimanding M.B. for playing video games at K.L.’s home during an online school day; of M.B. being upset with K.L. for being hard on him during a 3-on-3 hockey scrimmage; and, of the conflict between them over M.B.’s downloading of the Grand Theft Auto (“GTA”) game. In my view, these represented poor and transparent attempts to invent some kind of animus between the Defendant and M.B. in the latter stages of their relationship to serve as a basis for arguing a motive to concoct on the part of M.B. This notion was undermined not just by the evidence, but by common sense. There was no corroborating evidence that M.B. was a problem child with any kind of motive to concoct. If the 3-on-3 hockey experience created a rift between them, why did K.L. send a positive message, a smiling emoji, and the suggestion of attending a hockey game in the aftermath of the event? If M.B.’s June 2020 visit, featuring the Play Station and GTA conflict, had been so soured by conflict that it was cut short (according to K.L.), why would M.B. be invited back to a 10-day sleepover for sports camp that same August? And if M.B. was a problem child who was difficult to control, why would K.L. have invited him along on the Denmark trip in 2019? K.L.’s explanation that he and his girlfriend were using the opportunity to see how they would fare in raising children of their own was nothing short of nonsensical.

[33] I found other parts of K.L.’s testimony to be nothing more than a bare attempt to promote his narrative of a downtrodden M.B. harboring a growing resentment towards K.L. as the distant and business-like coach. In examination-in-chief, K.L. embarked on the topic of the 3-on-3 hockey tournament. This aspect of his evidence included that: it was “evident” to K.L. he made a mistake by inviting M.B.: “I cannot create a Triple A hockey player”; K.L. “swore” at M.B.; it was “pretty hard”; it was not the “regular” K.L., but instead an “elite Triple A hockey coach”; “I’m a teacher”; K.L. was “personally embarrassed”; Nate (M.B.’s friend) scored 4 to 5 goals; M.B. was embarrassed.

[34] I utterly reject K.L.’s suggestion that M.B. had built up an animus to him in the final months of their relationship.

[35] I am not prepared to impart some kind of redemptive gloss on K.L.’s evidence for his volunteering of detail on the 10-day sleepover in August 2020. This was nothing more than added detail to the overarching history of sleepovers for all types of occasions over a three-year period described by M.B. and A.L. Nor do I find that K.L.’s credibility was salvaged by his admission about events that would be potentially incriminating: sharing a bed, sleeping in the same room, applying pain relief gel, and providing M.B. with back massages.

[36] By the time he testified, K.L. had read and heard the detailed testimony of the complainant. M.B., provided minute and precise detail of things as specific as the lay out and contents of K.L.’s home, including his bedroom, which only a person who had been a visitor there could have provided. That evidence was largely corroborated by A.L. All that evidence was tested under cross-examination. I find that it would have been apparent to K.L. that any trier of fact was going to accept the substance of M.B.’s testimony and that it would have been fruitless to deny that there had been multiple sleepovers, bed sharing and back rubs.

[37] At the end of the day, the evidence clearly established that: the sleepovers happened, there were many of them, they generally spanned the period described by M.B., and most, if not all of them, featured K.L sharing a bed with M.B or spending the night in close proximity and with easy access to him. In my view, K.L.’s admission of the 10-day sleepover in August 2020 amounts to nothing more than a form of damage control and defence strategy designed to make K.L. appear reasonable and honest in the eyes of the court.

[38] I have also considered K.L.’s demeanour when testifying. I am mindful that a person’s demeanour must be approached with great caution. Persons come from different backgrounds and experiences, which may impact on the way they testify or comport themselves in court. Any number of factors may condition the way a person speaks, how they speak, their facial expressions when doing so and their body language. I am certainly not holding K.L. to any higher standard than any other person. I am both mindful and respectful of the principle that a witness's demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377 , at para. 131; R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 313-14.

[39] That said, it was very difficult for the court to ignore K.L.’s demeanour- in particular during those parts of his testimony when he was asked to address the sensitive details and very substance of the allegations against him. K.L.’s grimacing, pained expressions, and look of incredulous shock at the questions being posed to him both in chief and in cross-examination were, I find, a poorly veiled attempt to impress upon the court that the allegations being levelled against him were coming as a complete surprise. As if they had been flown in from outer space and translated into a comprehensible form for the first time. K.L. was arraigned before the court and heard the details of the charges read out from the indictment. K.L. sat through both the video recordings of the complainants’ statements. He no doubt heard similar evidence at the preliminary hearing. K.L. would have had the transcripts of the statements available to him before trial. K.L. sat through the direct examinations and cross-examination in open court of both the complainants and their respective mothers. For K.L. to then react to the questions put to him in such an obviously contrived and frankly childish fashion did nothing to enhance his credibility.

[40] For the purposes of the three-pronged W.D. analysis, I do not accept the exculpatory evidence of K.L.

Prong #2

[41] Nor does that evidence, on balance, leave me with a reasonable doubt about K.L.’s guilt. It bears repeating that K.L. utterly lacked credibility. I accept the Crown’s position that the primary difference between the evidence of M.B. on the one hand, and K.L. on the other, is whether the alleged sexual assaults took place. In light of my rejection of K.L.’s evidence as it pertains to M.B.’s character and the nature of his relationship with M.B. and his family, as well as what I find to be a conscious and transparent attempt to raise the specter of motive, K.L.’s exculpatory evidence alone does not leave me with a reasonable doubt as to his guilt.

[42] It is necessary to move to the third prong of the W.D. exercise and consider all of the evidence, including that of K.L, to finally determine whether all of the evidence, considered together, leaves me with a reasonable doubt as to K.L.’s guilt.

Prong #3

M.B.

[43] I found the substance of M.B.’s testimony to be entirely believable. He offered a vivid recollection of important events which happened many years ago. His testimony was generally consistent with his statement to police and even with much of K.L.’s narrative. The essential parts of his evidence were not shaken under cross-examination. I place significant weight upon his testimony that the touching and abuse occurred in the manner that he described.

[44] I am not bothered by the minor frailties or inconsistencies in his evidence. There were many events which brought M.B. into the company and care of K.L. during a time when M.B. was an eager, enthusiastic sports fan and participant. I find it understandable that he might overestimate the number of hockey games that he attended with K.L. I have given reasonable allowance for the fact that M.B. was as young as 7 ½ years old when the events in question started and 9 or 10 years old when the alleged abuse commenced.

[45] The confusion in a child’s mind between “Kelly’s Original” and a sexual lubricant like KY jelly is similarly understandable. He was unlikely to have been familiar with either of these products, he certainly did not purchase or possess them, and the difference between the two spellings is not so great as to be of concern.

[46] I am also not bothered by M.B.’s grappling with some aspects of the rape incident. Details of body positions and how he was aligned on the couch would be difficult to recall with any exactness. He was, after all, asleep during at least some of the incident and cannot be expected to give precise detail about a couch he did not own and fell asleep on only once. The testimony about K.L.’s penis penetrating him – notably, that it “felt weird and it hurt” and that M.B. was “pretty sure it was his penis because his hands were on my waist” and “it had to be” – was compelling and persuasive.

[47] I am not persuaded that his evidence about PA Day visits with K.L., even if it was mistaken, can serve to undermine his credibility or the reliability of his narrative. There is little doubt that M.B. stayed overnight at K.L.’s residence in June 2020 when both students and teachers were working from remote locations and not physically attending the school itself. There may have been some minor confusion in his mind between P.A. days and remote workplace days. What is certain and not in dispute is that whether it was hockey games, sports camps, P.A. days or other events that brought them together, there were multiple unsupervised overnight stays during which M.B. and K.L. either slept in the same bed or in the same room.

[48] M.B.’s narrative, viewed as a whole, was logical, compelling, consistent, credible, and persuasive. His trial evidence essentially aligned with the evidence in his statement. I afford it significant weight.

A.L.

[49] Aside from some frailties in her memory, I found A.L. to be generally credible and quite honest. I accept her evidence that K.L. initiated contact with her family and was proactive in establishing and developing the relationship with her family. She did not minimize her receptiveness to the friendship, nor did she attempt to portray K.L. as anything less than a friendly, outgoing, and outwardly trustworthy person.

[50] A.L. was the unfortunate witness to M.B.’s change in behavior in the months leading up to his ultimate breakdown and the disclosure that followed. I accept her evidence in this regard – namely, her detail of M.B.’s fight with his sister, his punching walls and his ultimate collapse followed by inconsolable crying and uttering the word “Kelvin” – was compelling and entirely believable. Given the close relationship that K.L. had built with M.B.’s family and especially with A.L., it makes sense that the tension, anger, and confusion engendered by the prolonged abuse M.B. had suffered might first manifest itself with him acting out and directing his anger at others before his disclosure to A.L.

[51] I found A.L.’s version of the final conversation with K.L. to be reliable. It aligned generally with the evidence of both M.B. and K.L., except that A.L. distinctly recalls K.L. saying that it was “disgusting” and that he was “sorry”.

Circumstantial Evidence

[52] The backdrop for these alleged offences amounts to circumstantial evidence which is nothing short of astounding. That a grown man in his 30s, who is both a grade schoolteacher and a minor hockey coach, would welcome an unrelated young boy to stay over at his home on multiple occasions without parental or independent adult supervision, to then share a bed, a bedroom, and a bathroom with that young boy, and finally to apply gel and perform back massages on him, cannot be casually overlooked. The circumstances here provided an ideal setting for the illicit sexual acts described by M.B. to have taken place. This circumstantial evidence is highly probative, deserving of weight and strongly supports a finding that the offences took place as described.

Grooming

[53] The Defence submits that the court must be careful not to conclude that K.L. was grooming M.B. based upon his conduct. Such a finding would require expert evidence.

[54] Not necessarily.

[55] Regardless of whether the term “grooming” is assigned to K.L.’s pattern of behaviour, the evidence established that:

• K.L. won the friendship and trust of M.B.’s family;

• K.L. achieved almost unfettered access to M.B.;

• K.L. invited M.B. over for sleepovers;

• K.L. slept in the same bed as M.B. or in close proximity to him on dozens of occasions;

• K.L. initiated and normalized physical contact with M.B.; and

• K.L. and M.B. spent countless hours alone together;

• M.B’s home was a fair distance from York Region and the city of Toronto such that the sleepovers at K.L.’s home became practical and convenient.

[56] Viewed in context, applying simple common sense, and regardless of whether the term grooming is used, I find it an inescapable conclusion that K.L. was the main actor in the creation of an environment of dependency, trust, familiarity, and normalcy around his relationship with M.B. within which the alleged abuse could more readily take place.

Conclusion on M.B.

[57] I have considered all the evidence pertaining to the M.B. incidents. I accept the evidence offered by M.B. The evidence persuades me that he had no motive to fabricate his complaint or his narrative.

[58] I am persuaded beyond a reasonable doubt that the multiple assaults as described by M.B. happened as reported by him. The Crown has met its burden in respect of Count 1.

R. v. W.(D.) Analysis – S.R.

[59] I do not accept the exculpatory evidence of K.L. as it pertains to S.R. In light of my ruling on similar fact evidence, I have deliberately stayed away from any propensity reasoning. Rather, I have considered K.L.’s profound lack of credibility in relation to the M.B. incidents when considering his evidence in respect of S.R.

[60] K.L.’s efforts to demonstrate the impossibility of performing the manoeuvre required to touch a person on the top bunk were entirely unconvincing. Indeed, the replica model of the bunk bed frame made it apparent that K.L. stood taller than the top railing of that frame. And while his display focused on the difficulty a person standing on the ground at the side of the bed might have in reaching over the top railing, it conveniently avoided repeating the exercise with him standing on his tiptoes or with footwear on. The demonstration also ignored the fact that the mattress and body size of a person on the top bunk would have brought his victim many inches closer to the top rail. The evidence makes it clear that a person of average height wishing to reach over the top railing could quite easily make use of the railing supporting the bottom bunk or even the ladder used to access the top bunk.

[61] Nor does K.L.’s exculpatory evidence, on its own, leave me with a reasonable doubt about his guilt. That evidence is too full of frailties to raise any reasonable doubt.

[62] I now move to the third prong under W.D.: a consideration of all of the evidence with a view to determining whether it leaves me with a reasonable doubt as to whether K.L. touched S.R. for a sexual purpose.

S.R. and J.R.R

[63] I found S.R. to be entirely credible. His statement to police was rich in detail and was both consistent with and supported by his evidence at trial. I found both to be reliable. The narrative was largely consistent both internally and externally. He was not shaken on cross-examination. There was no exaggeration on his part. There was no evidence nor suggestion that S.R. had a motive to concoct a story of assault. I accept his evidence that he had never met M.B. Nothing about his testimony could even hint at any collusion.

[64] I accept his evidence that he disclosed the incident to his mother following his departure from camp. Whether it was made immediately or a week after camp, this disclosure was contemporaneous, unprompted, and spontaneous. The discrepancy in the timing of it is minor.

[65] Given the disturbing information about certain boys at the camp exposing their penises (corroborated by K.L.), J.R.R’s initial dismissal of the complaint was understandable in context. So too was S.R.’s initial reluctance to pursue his disclosure – his communication to his friend M the day after the incident had resulted in some upset and embarrassment with K.L. accusing him of being disgusting. It is understandable that S.R. at first chose to bury the incident, finally deciding to renew his disclosure when he saw the OPP media release and recognized the man accused of a similar offence to be K.L. from H camp.

[66] J.R.R. provided reliable corroborative evidence on S.R.’s post-camp disclosure and his more emphatic disclosure following the OPP media release.

Circumstantial Evidence

[67] The photographs of the type of bunk beds used at H Camp in August 2021 do not serve to diminish the evidence of S.R. or support the exculpatory evidence of K.L. In fact, I find that they corroborate S.R.’s narrative. The dimensions and features of the bunk beds support the description offered by S.R. and his overall narrative of the assault.

Conclusion on S.R.

[68] Based upon all the evidence, including the exculpatory evidence of K.L., which I utterly reject, I am satisfied beyond a reasonable doubt that K.L. touched S.R. for a sexual purpose in the manner described by the victim. The Crown has met its burden under Count 2.

Disposition

[69] The essential elements of the offences have been proven beyond a reasonable doubt: K.L. touched both M.B. and S. R. with a part of his body for a sexual purpose. Considering the manner and circumstances in which the touching took place, there can be no doubt that K.L. did so intentionally.

[70] For the above reasons, I find K.L. guilty of touching a minor for a sexual purpose in respect of both M.B. and S.R.

[71] There shall be convictions entered on both counts of the indictment.

MCCARTHY J.

Released: September 6, 2024

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.