Ontario Superior Court of Justice
Court File No.: 8640/22
Date: 2025-01-22
BETWEEN:
His Majesty the King
– and –
W.S.
Before: S. Rasaiah
Applicant Counsel: Karen Pritchard
Respondent Counsel: Hilary Dudding, Julia Kirby
Heard: 2024-10-30
Reasons on Gardiner Hearing
Overview
[1] The offender was tried on two counts of sexual interference contrary to s. 151 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“Code”), one in relation to K.M. and one in relation to G.M.
[2] Following a judge and jury trial, the offender was found guilty of one offence, namely of sexual interference in relation to K.M., and not guilty in relation to G.M.
[3] A Gardiner hearing was held because the charge involving K.M. involved multiple allegations of touching over the time frame of the single count.
Analysis / Considerations
Introduction
[4] No further evidence was presented by either party at the hearing.
[5] I have considered the verdict, all submissions of counsel, and authorities presented even though I may not specifically refer to each individually.
[6] I considered the trial evidence. Both parties agreed that I could turn my mind to, as evidence elicited at trial, the evidence I set out in the final jury instructions; that use of same would be instructive. I also considered my trial notes. A great portion of the evidence at trial as I remember it was set out in the final jury instructions. In this decision, I do not propose to reproduce same or to refer to every single piece of evidence elicited at trial.
[7] Herein, I focussed on necessary facts required for sentencing based on the authorities and the arguments of counsel that were of issue.
Summary of Issues
[8] Summarily, the Crown submits that in addition to the facts essential to the verdict, the court ought to find for purposes of sentencing, on the trial evidence, as proven beyond a reasonable doubt, that during the date range of the Indictment, W.S. was in a position of trust with respect to K.M.; that he touched K.M. on “several” occasions, at least 10 for a sexual purpose; and that the touching included K.M.’s breast area, nipples, stomach, “crotch” area, and vagina.
[9] Summarily, the defence, while not agreeing to the verdict but acknowledging same, submits that in addition to the facts essential to the verdict, the court need only find during the date range on the Indictment for purposes of sentencing, on the trial evidence, beyond a reasonable doubt, that W.S. touched K.M.’s nipple/chest area on one occasion; that this will do justice to the evidence in this case, the verdict, and applicable legal principles.
Principles and Authorities
[10] Section 724(2) of the Code provides that the court (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
[11] In R. v. Brown, [1991] 2 S.C.R. 518, para. 12, the court wrote:
12 … subject to the jury's express and implied factual findings the judge must make the necessary sentencing findings. He or she must, of course, make those findings in keeping with the law relating to the finding of facts on sentencing set out in R. v. Gardiner, [1982] 2 S.C.R. 368, which establishes that while all credible and trustworthy evidence may be accepted, disputed facts relied upon by the Crown in aggravation must be established beyond a reasonable doubt.
[12] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, paras. 18, 20-22, the court wrote:
18 …when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia, 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also Gardiner; R. v. Lawrence, 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
20 The trial judge correctly turned his mind to the basis on which he had instructed the jury it could reach a verdict of manslaughter. The trial judge had instructed the jury that if it rejected both self-defence and intent for murder (intent to cause death or bodily harm likely to cause death), it must reach a verdict of manslaughter. The trial judge did not leave any other basis for a manslaughter verdict with the jury. Hence the trial judge correctly concluded that on the basis of the jury's verdict, he must find facts consistent with the jury's rejection of both self-defence and intent for murder. On the basis of the jury's rejection of intent for murder, the trial judge properly concluded that the jury had found that when he fired the second shot, Constable Ferguson neither intended to cause death nor bodily harm that he knew was likely to cause death.
21 However, the trial judge did not stop with these conclusions. He went on to make detailed findings of fact on Constable Ferguson's conduct. It was open to him under s. 724(2)(b) of the Criminal Code to supplement the jury's findings insofar as this was necessary for sentencing purposes. However, it was not open to him to go beyond what was required to deal with the sentencing issues before him, or to attempt to reconstruct the logical process of the jury: Brown; Fiqia. Nor was it open to him to find facts inconsistent with the jury's verdict or the evidence; a trial judge must never do this …
[13] In Ferguson, at para. 22, the court wrote:
22 … Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: R. v. Thatcher, [1987] 1 S.C.R. 652. It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts. Where any ambiguity on this exists, the trial judge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury's findings.
[14] In this case, there were different paths the jury could have taken to their verdict and could have arrived at a unanimous verdict for different reasons and on different theories of the case. Accordingly, this is a case, both parties agree, where I must come to my own independent determination of relevant facts consistent with the verdict.
[15] As to the different paths, ambiguous factual implications from the verdict, I noted, in R. v. R.T.K., 2014 ABCA 349, paras. 10-11, 15, 19, the court wrote:
10 Mr. K's main argument was that because the jury could have convicted of sexual exploitation even if it had a reasonable doubt about the digital penetration (but not the other sexual touching), the trial judge should have sentenced him on the basis of the minimal misconduct supported by the evidence. He maintained that because the jury acquitted him of a companion count of sexual assault, it may have had a reasonable doubt about the nature of his misconduct. As a result, the sentence should be imposed on the least serious available interpretation of the jury's path to conviction. This would have taken him outside of the sentencing guideline for a major sexual assault, triggered by the finding of digital penetration, and would justify a sentence of only 3-9 months' imprisonment.
11 However, in R v Brown, [1991] 2 SCR 518 at 522 the Supreme Court of Canada directed that when a jury verdict rests on an ambiguous factual interpretation, the sentencing judge should not attempt to follow its reasoning process but rather should come to her own independent determination of the facts: see also R v Ferguson, 2008 SCC 6 at paras 18, 22, [2008] 1 SCR 96. In so doing, she must accept as proven all facts, express or implied, that are essential to the jury's verdict of guilt and may find any other relevant fact that was disclosed by the evidence at trial to be proven: s 724(2) of the Criminal Code. Where there is conflicting evidence with respect to factors going beyond the gravity of the offence, the onus is on the Crown to prove the aggravating factors beyond a reasonable doubt: Gardiner; see also s. 724(3)(e) of the Criminal Code.
15 In this case, the trial judge's finding of digital penetration arose in a context where the only evidence of the nature of the sexual conduct between Mr. K and his stepdaughter came from the testimony of the latter. While the complainant's memory may have proven less than complete in relation to certain portions of her testimony, including, for example, the type of conduct that occurred on particular dates, it was certainly open for the trial judge to have accepted the existence of digital penetration. Indeed, any other interpretation would have required the trial judge to have accepted the stepdaughter’s evidence of fondling and other physical touching (as that was "essential" to the jury's verdict of guilt on the sexual exploitation charge) yet to have rejected her evidence that digital penetration also occurred, without any particular reason for that distinction. Given this reality, it is easy to see that the sentencing judge not only found digital penetration, but also why she made such a finding. Moreover, it can be presumed that she knew the law regarding the standard to which that fact had to be proven.
19 This argument is, at core, that where a jury acquits on any count in the context of conviction on companion counts, the sentencing judge is compelled to assume the least egregious set of facts to have been proven on the evidence because at least one member of the jury may have convicted on that basis. That is not what is required by s 724(2) of the Criminal Code. That section compels just the opposite. Nor is it what the Supreme Court of Canada required in Brown; rather, it would drive a sentencing judge to attempt to deconstruct the logical processes of the jury, an impossible and dangerous enterprise.
[16] R. v. W.(D.) is to be considered in the analysis when an accused testifies.
[17] Credibility and reliability were disputed at the trial.
[18] It is well understood and accepted that 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 their mental development, understanding and ability to communicate; and that evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which they are testifying.
[19] While not lessening the standard of proof, it is well established that a common-sense approach (to ensure a fair trial) must be applied to assessing evidence of a child witness, recognizing that children often experience and cognitively process the world differently than adults. Inability to recall details of, or imprecision on details, such as time and place, do not necessarily translate to a finding the child misconceived what happened to them and who did it.
[20] It is well established that it is open to the trier of fact to accept the core of a complainant’s testimony which proved the elements of the offence(s) while acknowledging that they could not explain all the precise details, appreciating that peripheral details of a traumatic event can be difficult to recall and accurately describe later.
[21] K.M. was a child when the acts complained of were alleged to have started, occurred, and ended, namely between age 6 to age 11. K.M. was 12 when she gave her statement to police. K.M. was a child when she testified; age 15 at trial.
[22] G. (sister of K.M./other complainant), H.1 (the oldest child of W.S.), and H.2 (the youngest child of W.S.) were also children at the time of the alleged occurrences, and at trial.
Findings Essential to the Verdict
[23] To be consistent with the verdict, Crown and defence agree that the findings essential to the verdict are at the very least that on one occasion; sometime between January 1, 2014, and April 1, 2020; when K.M. was under 16 years of age; W.S. intentionally touched a part of K’s body directly using his hands; for a sexual purpose.
[24] The issues identified by the Crown for purposes of sentencing include, position of trust, number of occasions of touching, the part(s) of K.M.s’ body that was/were touched, and the manner of the touching. The defence agrees with respect to these facts, that they all constitute facts in aggravation that must be found to have been proven beyond a reasonable doubt by the trial evidence disclosed at trial.
[25] The parties focussed their submissions on these issues, as the necessary facts the court needed to consider, not raising others.
“Position of Trust” Findings
[26] A “position of trust” finding is necessary for appropriate sentencing in this case.
[27] On “position of trust”, defence confirmed that they do not take issue with a position of trust finding as being proven beyond a reasonable doubt on the evidence disclosed at trial, meaning that with any of the acts complained of that may be found to have occurred by the court, that W.S. was in a position of trust; W.S. is K.’s uncle.
[28] In the event I misinterpreted this submission, I find it was disclosed in the trial evidence and proven by the Crown beyond a reasonable doubt that W.S. was in a position of trust in respect of K.M. Taken as a whole, the evidence of W.S, M. (wife of W.S.), H.1, H.2, K.M., G., C.M. (brother of K.M.), and C.V. (aunt of K.M.), confirms and supports that W.S. was the uncle of K.M. and that he was a trusted family member/figure in respect of K.M., with whom K.M. spent time. The family members were estranged in 2014. K.M., G. and C.M.’s mother S., died in a car accident in July of 2014. After S.’s death, in 2014, the surviving sisters of S., including C.V., E. and M., and S.’s mother, decided to bury the hatchet regarding their past problems and reconnect. There were “ups and downs” with respect to the M-children’s relationship with their biological father after their mother died. C.V. had care of the M-children. W.S. and M. started taking the M-children and spending time with them, starting in Bruce Mines. After the Bruce Mines fire, W.S. and his family moved to Richard’s Landing behind C.V.’s home. K.M. and G. became close to all the S.’s. The cousins, K.M., G., H.1 and H.2 acted more like sisters than cousins. K.M. and G. spent a lot of time at the S.’s residence after they moved to Richard’s Landing. The further details of the evidence of the relationships are set out in the Summary of Background in the jury instructions.
Findings Regarding the Touching: “Under Clothing”, “Chest”, “Nipple”, “Vagina”, “Crotch Area”
[29] To permit the proper sentence to be imposed it is necessary to determine the parts of the body touched and manner of touching.
[30] The defence suggests that there is no details on occasions K.M. did not have specific memories of, and a degree of uncertainty regarding one or more of the areas of K.M.’s body alleged to have been touched and manner on the evidence disclosed at trial such that same is not proven beyond a reasonable doubt; that this is true with respect to all three specific occasions she had some memory of.
[31] There were other occasions testified to by K.M., that K.M. had no detailed memories of; only able to testify that the touching was “the same as before” which I will for ease refer to as “non-specific” occasions of touching. I am persuaded, there is a lack of detailed evidence disclosed at trial on these non-specific occasions. I noted that touching was different in one of the three specific occasions K.M. had memory of, having regard to K.M.’s words used, namely, “same as before”. As such, the trial evidence disclosed does not prove for those non-specific instances, touching of the specific body part or parts of K.M. on those occasions beyond a reasonable doubt.
[32] There were three occasions that K.M. had specific memories of, herein referred to by their locations, namely Bruce Mines, Cabin at Carpenter Lake, and Richards Landing.
[33] In the Bruce Mines occurrence, K.M. describes that the touching was of her crotch area. It did not include touching of her nipples/chest/breast area.
[34] In the Carpenter Lake and Richards Landing occurrences, K.M. describes both touching of her crotch area and chest area, describing how the touching moved from the chest area to the crotch area.
[35] I do not agree with defence that K.M.’s evidence was devoid or void of detail as to body parts touched on each occasion of these occasions to raise reasonable doubt for me.
[36] The defence highlighted language used by K.M.
[37] As to “underneath clothing”, for all three specific occasions K.M.’s evidence was not moved and was consistent; that each instance of touching occurred underneath her clothing. She has clothing on; he touches her underneath her clothing. Defence stated that they are not making an issue of that; only submitting that K.M. does not explain how it happened under her clothing. However, defence highlighted that there is an absence of evidence regarding underwear.
[38] K.M.’s evidence of “underneath clothing” is not unclear to me on the whole of her evidence. The absence of evidence regarding underwear does not raise doubt.
[39] K.M. motioned in her police interview, to areas on her body that were touched. Her breasts, nipples and vagina are in those areas. K.M. would describe these areas using other words of her own. In both instances that involved touching of her breast and vagina, K.M. described how W.S. moved from her chest area and to her groin area with detail, connecting the acts; transitional touching articulating where the touching started and progressed to. K.M. would also acknowledge the proper names of/meaning of her descriptions to the officer, in the police statement, to be her breasts and vagina, and nipple.
[40] K.M.’s descriptions of touching included being touched on specific body parts themselves on her chest. With respect to touching of her chest, if that occurred, K.M.’s evidence included descriptions of the actions of W.S. circling her nipples with a finger. Regarding the touching of the nipple, she stated he touched the “thing up here”, “the you know what I mean”. She specifically acknowledged to the officer that she was referring to her nipple when asked. She confirmed to the officer that her motioning and words meant that he touched her breast and nipple. In respect of the nipple, she testified, “He would play with it.” K.M. nods her head in the affirmative to the police officer attempting to confirm that K.M. was telling her that W.S. touched her breast more than once; up to three times.
[41] Defence acknowledges the trial evidence is clearer at the very least on the alleged touching of K.M.’s breast, namely, circling of her nipple; that K.M. is more precise in her description of this touching, and submits this is the touching that the court should rely on as fact for the sentencing. I do not agree and further, I find this evidence clear.
[42] Defence argues that the submitted lack of precision in detail regarding touching of K.M.’s vagina supports rejection of that evidence; that this would amount to a distinction on which, although part of the Carpenter Lake and Richards Landing allegations, the court can reject the part related to vaginal touching as not proven beyond a reasonable doubt. Defence submits other non-genitalia areas would be encapsulated in the descriptions.
[43] As to the crotch area/vaginal touching, in general, I noted that the Crown does not take the position of vaginal digital penetration, nor did they submit same at trial or this hearing. The Crown takes the position that there is evidence disclosed at trial proving beyond a reasonable doubt that the touching of K.M. included the touching of her vagina under her clothes by W.S. during which W.S. used his finger, putting his finger between K.M.’s vagina, moving his finger around. I agree.
[44] With respect to touching of K.M.’s crotch area, if that occurred, K.M.’s evidence included descriptions of W.S. placing a finger in between her privates moving it around “in there”. I appreciate that K.M. clarified her evidence on this issue at trial, namely in essence, to state that she was not referring to digital penetration. I accept her explanation for this clarification, finding that she provided a reasonable explanation regarding the manner of the touching she initially reported; the explanation does not defy logic and is supported on the whole of the evidence, including her age at the time. K.M. explained when she used the word “in” it, she meant “in between”. K.M. was age 12 when providing her initial disclosure to police. W.S.’s finger being “in between” and moving around, is a reasonable explanation of a finger being “in” her privates. Everyday experience and common-sense support that a 12-year-old child may not appreciate that touching “between” is not “inside” meaning penetration, and that the initial description as to the form of touching of the finger being “in” it, is reasonable given the anatomical make up of a vagina. She knows more now that she is older. Further, the evidence as to what she knew and did not understand at the time – education as to body parts - does not change that. K.M. presented at trial, and in her statement to police, as having difficulty describing the touching actions, and body parts; being embarrassed to use body part words, no matter her education. The trial evidence discloses that it takes time for her to get these kinds of words out. At 12, she did not like saying these kinds of words. At 15, she still did not like saying these words.
[45] Accordingly, it is of no concern in my view to K.M.’s credibility on the whole of the evidence that the touching was not clarified, for example, as being “in between her labia” at trial.
[46] I do not find that the use of “crotch” or “groin” or “in between” at various times by K.M. raise the doubt suggested, based on the whole of the evidence. I do not find K.M.’s evidence to be challenging as to determine in respect of what K.M. means in respect of the vaginal touching. K.M. did not confine her word descriptions to “crotch area” or “groin area”. In addition to words, again, she used descriptive actions. In her statement to police K.M. motioned her groin area to police. She started out calling this area her privates. She identified the name as vir-gina, which is objectively very close to the word “vagina”. Preceding the use of “vir-gina” she also used the words “private part down there”. Before giving the word “vir-gina”, she also stated she knew there was a word for it but that she called it her private part. K.M. nodded her head in the affirmative when the police officer was attempting to confirm that K.M. was telling her that W.S. touched her vagina. This happened on more than one occasion in the interview: three times.
[47] As to education, while K.M. testified that she knew at age 12 the names of body parts; that no one should be touching your “privates”; she knew the basics; she knew how babies were made; and she knew babies were made when a penis is put in a vagina and there is moving around, she also agreed she knew the words nipple, breast, and vagina. Her trial evidence discloses that she feels embarrassed to say those words and does not like saying them in front of people. This is a reasonable explanation for her choice of words. K.M. on the police video statement presented as uncomfortable saying the words. K.M. genuinely presented this way at trial as well, no matter who was asking her the questions.
[48] I am not persuaded that K.M.’s expressions of feeling “uncomfortable” to describe how she felt in respect of the touching raises doubt or affects her credibility because no physical sensation could be attested to by K.M. Use of the word “uncomfortable” does not render her evidence as being not unique and not compelling. She would use other words and provide descriptions of responses to some of the specific and non-specific occasion acts of touching. When talking generally about touching, in the police interview, K.M. without being asked to relate it to a specific event, agreed that she would say she had to go to the bathroom or that she wanted to go to sleep. K.M. also described feeling “confused”. These descriptions coincide with the circumstances/context. K.M. testified that she was being touched by her uncle. K.M. also testified that she did not understand the touching at the time. She was very young at the time, ages 6 to 11. The Richards Landing occurrence also included specifically K.M. stating a reaction to remove herself from the situation, stating she had to go to the bathroom or that she was very tired and was going to go to bed; that is how it ended.
[49] Based on the described touching, especially noting no allegation of penetration of any kind, commonsense applied, one would not expect an expression of pain. Some touching of W.S. was described when scratching backs. Of note, H.1 described the “scratching backs” actions done by W.S. as more of a relaxing thing. M. described it as a lighter motion using fingers. H.2 described it more as tickling. W.S. described it as more of a comforting, soothing, bonding thing.
[50] K.M.’s descriptions of some of the occurrences included her being “zoned out” at one point, and or trying to focus elsewhere.
[51] Accordingly, I find lack of description of physical sensation is of no consequence in assessing K.M.’s credibility.
[52] Defence highlights K.M.’s use of the expression in describing details of touch as “same as before”. Doubt regarding credibility and reliability is not triggered simply because at some points K.M. described an act as being the same as another previous act. It does not defy logic that a similar or same act can be perpetrated more than once. It matters what is said about each act. She testified to much more, as set out herein, and was able to provide details that she remembered from three specific incidents.
[53] The evidence discloses that there is reason why K.M. could have more memory of the three specific events, namely, Bruce Mines was the first time, Richards Landing was the last time, and Carpenter Lake was a location that was not familiar to her. Further, the acts described at trial, contrary to defence submission were not all the same, in terms of what was touched and how or the circumstances that led to same. Bruce Mines involved vaginal touching only during movie watching underneath the blanket, Carpenter Lake involved no movie watching, and Richards Landing involved touching after movie watching was concluded.
[54] K.M. has not resiled from the core allegations of manner of touching or body parts. K.M. physically demonstrated areas of her body that were touched to police. She has not impactfully changed her core allegations without reasonable explanation, despite the number of times she has been questioned and the opportunities to be questioned. Overall, the trial evidence sustains a finding that K.M. was consistent and did not move on the details in relation to touching, as to what happened to her, where it happened to her, who did it to her and what parts of her body were touched and where, all core details.
[55] Putting aside for the moment, the number of occasions or each specific occasion testified to, regarding touching of her chest, I find based on the whole of the evidence disclosed at trial, K.M.’s evidence is trustworthy and credible and the trial evidence discloses, proven beyond a reasonable doubt, that K.M. was touched on her chest area, including her “nipple”, by W.S., and the action of touching included, W.S. “circling” on her nipple with his finger.
[56] Putting aside for the moment, the number of occasions or each occasion testified to, I find based on the whole of the evidence disclosed at trial. K.M.’s evidence is trustworthy, credible and the trial evidence discloses, proven beyond a reasonable doubt that K.M. was touched on her vagina by W.S., and the action of touching included, W.S. putting a finger “in between” her vagina and moving it around; that the descriptions by K.M. of her lower body parts are not imprecise to raise a reasonable doubt, and/or form a particular reason to reject same as part of the acts complained of. Where touching involved both the chest and groin area, K.M. clearly articulated the two acts of touching as transitional.
Findings Regarding the Number of Incidents of Touching
Introduction
[57] If there was more than one incident, this is relevant and necessary to consider for imposing a proper sentence. More than one incident is aggravating.
[58] The Crown submits that it was disclosed from the trial evidence and proven by the Crown beyond a reasonable doubt that there were several incidents of touching, at least ten. I do not agree the burden was met for same.
[59] The defence argues that there are only three incidents for the court to consider on the basis that these occurrences are the only occurrences that K.M. had some more specific memory of. Defence submits that finding that touching occurred beyond the three events that K.M. has no detailed memory of should be rejected based on absence of evidence. I agree and will say more below.
[60] The defence submits that the trial evidence does not meet the standard of proof that any of the three stated incidents occurred. Regarding the three specific incidents, the defence submits significant improbabilities and/or inconsistences with each. While recognizing it is necessary to find at least one occasion of touching, as such, the court should find only one occurrence of touching. The defence also submitted that, in finding one incident of touching occurred on this basis, it is not necessary for the court to find which one of the occasions took place because of the similarity of the touching on each occasion alleged. I do not agree. I will say more below.
Overlapping Issues Dealt with Collectively
[61] Defence highlights that when K.M. was giving her statement to police, she told the officer she did not know how many times the incidents of touching happened. This is true. I noted that it was the officer who asked if it happened “a lot”. After being asked this, K.M. agreed with the officer and said, “Like I guess ya, it happened a lot”. “A lot” meant it was not all the time they went there but almost all the time they went there and that they went there a lot. They would usually go there on the weekends when their dad did not pick them up. They would go there sometimes after school, for birthday parties, and for sleepovers. There was no further defining of the meaning of “almost all the time”. K.M. was not asked to provide a number like she was at trial. Before this line of questioning, K.M. was describing to the officer memories of events occurring when watching movies in the bedroom or during events of scratching backs with W.S. present. K.M. was not asked about going over to the S. residence when W.S. was not there in terms of her quantification. K.M. was 12 at the time of accepting this suggested quantification, and the information she was providing to the officer in the context. The defence appreciates that this maybe a place where the factors relating to assessing a child witness’ evidence weighs in. I find that they do, and that the context of K.M.’s complaints and presence that preceded cannot be ignored, namely she was there to provide information concerning occasions of touching involving W.S.
[62] Looking at the whole of the evidence, the trial evidence discloses that there were in fact many times K.M. went to the S.’s residence, including when W.S. was not there because he was away. K.M. was in fact at the S.’s residence a lot when they moved to Richards Landing. The S. family witnesses do not contradict same. W.S. described many absences from his home for work purposes, both in Bruce Mines and Richards Landing. The details of the trial evidence of W.S.’s work history, and absences from his home are detailed in the final jury instructions. Some of W.S.’s absences from home were significant, in terms of K.M.’s final evidence on number of occasions. The evidence also discloses that there was a period when the S. family was living in Opher with W.S.’s mother (5 to 6 months) after the Bruce Mines fire, and a period, after they moved to Richard’s Landing, that the S. family had others living at their home.
[63] In general, the trial evidence also discloses that K.M. did not ever state that the touching incidents happened on every sleep over or for every movie night. K.M. did not testify that touching incidents happened every time they watched movies, just that the majority of the times occurred when they were watching movies. I interpreted K.M.’s presentation at trial as telling the defence that they were misunderstanding her about movie nights and scratching of backs when it was suggested she was “changing her evidence” and/or it was suggested that she said it “was always the same”; always during movies. All the S. family witnesses’ evidence confirms that when W.S. was there, they watched a lot of movies, but not always in the bedroom, and watching movies did not always include a sleep over; back scratching was also something that happened, not necessarily tied to movie watching.
[64] At trial K.M. still a child, age 15, could have agreed it was hundreds of times, but she did not. K.M. repeated that she could not remember the number of times, consistently. She did not try to avoid answering the question. She eventually provided a quantification of at least 10, when offered a selection of numbers. Objectively “ten” is “a lot”. While K.M. presented to me that she could not remember a specific number, it was clear it she was testifying that it was more than the 3 specific events she testified to, and she was not moved from that, she just could not say. It is not implausible that an inability to parse out a specific number can arise from repetitive acts, especially if the circumstances under which each act started/occurred, and the manner of the acts themselves had similarities. K.M. testified as such relating the occasions generally to movie nights and/or back scratching occasions only, not other activities she engaged in when at the S. residences.
[65] It is fair to state that rather than offering made-up detail, K.M. was candid in stating that she could not remember each occasion.
[66] For these reasons, I am not persuaded that the quantification evidence of K.M. amounts to the significant inconsistency as is suggested to raise a doubt or that K.M.’s evidence or a deliberate exaggeration or that same draws a logical conclusion that her evidence the number of occurrences translates to “hundreds of times”. While there was inability to accurately recall number of times, these inconsistencies I find do not impact her credibility and reliability; her evidence is not incredible because of same.
[67] Having set out the above, I do agree that the evidence falls short in establishing the number as “ten”. I agree that the there is a lack of detail to the non-specific occasions to find this specific number based on K.M.’s trial evidence referred to above.
[68] As to the specific occurrences, there are reasons disclosed on the trial evidence supporting K.M.’s ability to remember them, as one was testified to be the first time it happened, one is the last time it happened, and one occurred at cabin she did not attend regularly and/or was familiar with, and as such, more memorable to her.
[69] I agree that K.M. presented as describing three specific different experiences at three locations with different details. They were not the same in respect of places, activities engaged in and/or touching.
[70] I do not agree that discrepancy as to who was in the bedroom and when and what anyone was doing or not seeing as K.M. described undermines K.M.’s credibility and reliability in this case. This does not toll so heavily against credibility and reliability or is as important or a critical detail as submitted.
[71] I do not agree that the evidence of H.1 and H.2 assists. H.1 agreed that on movie nights in W.S.’s bedroom it was hard to remember who was where in the room and on the bed because it was an ordinary event; K.M. being at her home was an ordinary thing and it happened lots of times; that during movie nights, sometimes people would fall asleep and get up and go to bed while others stayed to watch; and after movie nights some of the four girls may stay downstairs to use the washroom, staying down with W.S. and others would go up with M.S. H.S.1 did not really pay attention to K.M., K.M. knew the routine. In general, if an event was not a big event, H.1 agreed that it would be hard to remember details. H.2, in the context of movie nights and where everyone was, agreed it was so routine that she could easily be mistaken as to who was in the room. H.2 testified that there were times M. left the room to go to the bathroom or get something to eat sometimes. Both W.S. and M. testified that neither of them had cause for concern as to where K.M. was in their house when she was over. H.2 agreed that movie nights were a regular ordinary event and because of that she cannot remember always where everyone was. All the witnesses varied on the places from which each would watch; their spots/positions. Their spots/positions were not always the same. They brought their blankets or used blankets.
[72] As to M. always being there or the suggestion that K.M. was crafting a story to exclude M. from seeing what happened, M.’s evidence on her work history is set out in the final jury instructions. There were times when W.S. was off for summers, during which M. worked based on her own evidence. W.S. testified that when he was off for the summers, he was at home spending time with his family. From this, it is not implausible that M. was not always there.
[73] Further, K.M. did not exclude M. as never being there. She told police that she did not know where M. was, that she was sleeping, at work or something. The trial evidence disclosed that M. was not always there every minute if she was home; including but not limited to going to the bathroom or getting snacks. M. was on the evidence, a crafter, with a whole room dedicated to that. Both W.S. and M. were not concerned where K.M. was in the house, like H.1 and H.2 given their relationships.
[74] Even if M. was present, the trial evidence discloses that sometimes she was interested in the movie, sometimes she was not. When not, she could have been playing on her phone if in the bed. If not interested in the movie, I do not find that it is implausible that M. could have been sleeping. The trial evidence supports family members falling asleep during movies. The children brought blankets and/or pillows to the movie nights and found comfy spots to settle down into. M. if there would be in the bed.
[75] Whether M. was there or not, it is not implausible that she may not have seen what was going on based on the above and K.M.’s credibility is not negated.
[76] The same can be said of H.1 and H.2 and even G. Their activities were regular and routine. The cousins were more like sisters, not paying attention to what the others were doing; sometimes they fell asleep and left before the movie ended and dispersed at different times after movies. For scratching backs, they took turns with each other, which also creates a situation potentially affecting ability to see what is going on. W.S. being beside/behind K.M. alone could also block vantage point of family members.
[77] K.M. never claimed to always be alone when touching happened.
[78] This evidence lessens the importance of whether anyone was in the room or not and negates the argument of implausibility or improbability of touching in the presence of other family members.
[79] At trial when K.M. was testifying to M. sleeping in the bed, I also noted it was in the context of defence suggesting that if she was there, she would not let W.S. touch her. I interpreted her evidence as expressing to defence, that if they (meaning defence) were saying M. was in the bed, she would not let that happen, she would be sleeping. K.M. did not move from her evidence that M. was never in the bed during these occasions of touching that she remembered. She disagreed that it would be the kind of thing she would remember.
[80] In respect of K.M.’s frailty in remembering who was where and when, in this case, it would be unrealistic to expect K.M. to have a faithful memory of who was in the room and when.
[81] Lack of specifics as to what K.M. and W.S. were wearing specifically at the time of any of the occurrences does not cause me concern, with respect to K.M.’s credibility or reliability, given her age, passage of time, and number of occurrences she states happened, along with the regular routine activities that involved watching movies and/or cuddling/back scratching over the course of years, namely, when K.M. was ages 6 to 11; 5 years. There was some evidence. In general, if watching movies in bed, they all put pjs on for the movie; all agreed. K.M.’s evidence that W.S. did not always wear a shirt and had pants on was not contradicted. H.2 agreed her dad would not wear a shirt in bed for movies. W.S. also agreed there could have been times he only had pyjama bottoms on and no shirt because it was hot. W.S. agrees that clothing sometimes was lifted for back scratching. The core important detail is that the touching was underneath clothing and the trial evidence is not void of details.
[82] In general, regarding how touching moved to underneath clothing and K.M. not always remembering for each instance, K.M. tied the events to either back scratching occasions, or movies occasions. W.S. agreed that there were times that he would scratch the girls backs and that included K.M. This back scratching did happen in his room, occasionally, in the rec room. It did happen during movies. W.S. would scratch over their shirt unless they lifted the back of their shirt to be scratched on their skin, qualifying that it was only when they themselves would lift their shirt. W.S. indicated that he had been doing “back scratching” since H.1 was a baby. H.1, although calling this “tickling”, testified that W.S. did this to K.M. if she asked. She saw him do this herself only once or twice. H.1’s evidence included that K.M. may have done this to W.S. but mostly it was she and her mother who did this to her father, presenting as wanting to distance K.M. from W.S. H.1 however agreed that if one [person] was getting it done, that two people would swap, stating, if one does it, then they switch. H.1 doesn’t remember it happening anywhere else, just during movies. She said that normally happened, people are laying down watching the movie. They often have positions, including on the bed, including K.M. and lying down during movies. Even though W.S. himself acknowledged it would happen underneath shirts, M. testified essentially was that it was overtop and rare to be underneath. H.1’s evidence was similar, having no recollection of ever remember it as being underneath shirts. H.2 would not agree that it was under. The positions of parties when being scratched and where and by whom also had significant differences. Their descriptions presented as wanting to distance W.S. from touching under clothing. M., who also called it “tickling”, testified as to where the tickling took place, that it depended on where they were. There wasn’t any specified place where this only happened. She cannot recall if on movie night this occurred, but it was possible. The point is that K.M. is not undermined in respect of the issue of being in situations whether it was back scratching or a movie activity, that there was touching; that she could have been in a position for same to happen during activities the evidence discloses that they engaged in, and that these activities were not limited to movie nights only.
[83] There were many suggestions to K.M. that she did not or failed to tell the police during her interview various details she provided only at trial or after her interview. I will say more later regarding this. Generally, some of the suggestions of failure or not having told the officer a fact ignores that K.M. was not asked questions to elicit the answers. This was her first-time disclosing details to anyone. She was a 12-year-old. She presented as having difficulties talking about the touching and even using words. I also found that there was at times a lack of focus demonstrated by K.M. who sometimes gave general answers to specific questions, and/or jumping of topics by the officer herself and/or K.M. when K.M. was interviewed. As such, I do not characterize the evidence of K.M. as submitted/read by defence, in terms of what K.M. told police versus what K.M. testified to at trial or that same gives rise to doubt her credibility and/or reliability.
Bruce Mines
[84] The Crown suggests that the evidence at trial proves beyond a reasonable doubt that the Bruce Mines incident occurred, noting K.M.’s evidence of the core details of the touching, that the details that were provided can be considered unique; consideration that K.M. can describe the location, her position on the bed, W.S.’s position on the bed, the actions of W.S. and how it made her feel. K.M.’s evidence is trustworthy and credible. I agree.
[85] Summarily, defence arguments on this specific occurrence focussed on inconsistencies as to whether the context was that they were watching a movie or if it was just back scratching; who was in the room and when; that the description of the touching was void of detail or not precise (challenging as to what they mean), for example as to what body part was touched; and the details that were provided were not unique and exactly like the other occurrences – they are not striking details.
[86] I considered that K.M. was very young at the time, much younger than her age at the time she gave her statement to police in terms of her evidence on this event. Contact started in 2014. At that time, the S. family was living in Bruce Mines. Their home there was destroyed by a fire in 2018. In 2014, K.M. based on her birthday, date of her mother’s death, and when contact began, K.M. was likely 6 years of age. At the time of the Bruce Mines residence fire, Spring of 2018, the S.’s first lived in Opher with W.S.’s mother for a period (potentially 5 to 6 months) prior to moving to Richards Landing. Based on her birthday, K.M. was age 9 prior to the home being destroyed. The context of her age is a consideration in analyzing her evidence on this event, while not lessening the standard, a commonsense approach must be applied.
[87] In the police statement, K.M. started by giving a general description of touching that cannot be said to be directly related to a specific incident, namely that W.S., “usually he would touch me up here (motioning to chest area) and down here (motioning to groin area)”. K.M. told the police officer that she called her private parts up top, her chest, motioning to the chest area and my private parts down there (motioning to groin area). She related the touching to being in bed. The police officer then directed K.M. to an inquiry as to where the beds were, and she answered one time it was at a cabin and one time at the house. Then K.M. by question is directed to speak about the first time it happened. She thought it was his old house (Bruce Mines) clearly identifying a specific location. She explained they watched movies (plural), and it would be the same as she explained before, which was her general descriptions of events. This statement was not clarified at this point by the officer. K.M. did say that it was the four of them, meaning herself, G., H.1 and H.2 sometimes as to who was there. That word “sometimes” cannot be ignored. Again, it presents that K.M. was speaking in generality when she stated this, not the specific event. K.M. stated at Bruce Mines, they were watching a movie and he put his hand under the blanket while they were all watching a movie. She did not think anyone saw what happened. She is then jumped by the officer to the last time which she put that at the Richards Landing residence, in W.S.’s room, watching a movie. She believed it was only her sister, herself and W.S.
[88] When talking about the Bruce Mines occurrence, K.M. told the officer that they watched movies and I do not read her statement as being challenging to understand as to whether it involved scratching backs or a movie and/or both on this specific occasion. K.M.’s evidence was related to movies for this occasion. “Same as before” was related to the touching.
[89] K.M. did not agree that she never told anyone she was never left alone with W.S. At the preliminary inquiry, it was pointed out that she in fact testified she did not know if anyone else was there at the time of the act of touching on this occasion and again her statement that G., H.1 and H.2 were there sometimes when they watched movies there was a general statement. She did not know where G. was when the touching happened. As such, I do not interpret her evidence as providing 3 different versions.
[90] Another aspect is that even if others were there, the touching on the evidence of K.M. regarding Bruce Mines was concealed, in that they had blankets and he put his hand under the blanket, then underneath her clothes. Accordingly, it does not defy logic that even if others were there, that they would not have seen, accordingly making this evidence less important and of no real consequence on this occasion. At first instance, to police, K.M. stated that she did not believe anyone saw what happened. Further, K.M. consistently testified that no one was saying anything while it was happening (applicable to all occasions), meaning she and/or W.S. No S. family witness indicated that there was talking going on while they were watching movies that contradicted K.M.; and that they had blankets for movie nights.
[91] K.M. was able to remember the home. Many of her details were not contradicted. She describes being on the bed, that she started on her back and then on to her side. W.S. was on the bed beside her. W.S. touched her crotch area. He touched her underneath her clothes. She felt confused and uncomfortable. He used his hand. He put his finger in between her crotch area. Suggesting that the “touching was the same as she explained before” as being void of detail is not recognizing that she was talking about being touched in the crotch area only on this occasion. She described the manner of touching in that area at trial and to police. This touching thus was not the same as the other incidents, that also involved touching of her breast. Her description is not void of details or incapable of being understood to raise doubt. This occasion is different and unique from the occasions at Carpenter Lake and Richards Landing.
Carpenter Lake
[92] The Crown suggests that the disclosed evidence at trial proves beyond a reasonable doubt that this incident occurred, noting K.M.’s evidence of the core details of the touching, that the details that were provided can be considered unique; that K.M. can describe the location, her position on the bed, W.S.’s position on the bed, the actions of W.S. and how it made her feel, and other details of what she saw, including it being dark, and seeing light coming in under the crack of the door. K.M.’s evidence is credible and trustworthy. I agree.
[93] The defence submitted that K.M.’s evidence changed regarding this allegation. Specifically, as to who was in the room while she was being touched, and submits the differences were unexplained. The defence points to K.M.’s description of what was going on in the room, namely no television on, no lights on, being in the pitch black, where everyone was, and inability on the part of K.M. to explain why all four children would be there, what they were doing, why they would be in the dark, combined with the evidence that they (K.M., G., H.1, and H.2) did not sleep in that room. The defence points to H.1, H.2, and M. stating that they were there when K.M. was at the cabin and K.M. was never in the bedroom with W.S. as described. Defence suggests unlikeliness of four young girls being content to sit in a pitch-black room for an extended period, which raises doubt; it is improbable. The defence also highlights an inability on the part of K.M. to provide details as to the time of day this took place, what she was wearing and what they were doing there, how the touching came to be, and the details of the touching beyond “same as the last time” regarding touching of her “crotch” area; submitting the lack of detail is striking which raises doubt about the credibility and/or reliability of her evidence.
[94] The trial evidence discloses that K.M. stayed in the cabin with W.S., M., G., H.1 and H.2 at least once.
[95] K.M.’s description of the W.S.’s bedroom was not contradicted by any of the witnesses or her memory of the people who were staying at this cabin.
[96] It is true that K.M. did not know the time of day she was in the cabin, but her evidence is not devoid of details. She remembers it was evening and it was dark. Witnesses agreed it was the Fall. K.M. would have been 9 or 10.
[97] W.S. put himself in the cabin bed at dinner time. M. agreed. W.S. testified it was dark out.
[98] Finally, this is a case in which K.M. not being able to remember the exact time, does not negate her credibility and reliability. Exact time is a peripheral issue. The general time frame and time of day is disclosed on the trial evidence.
[99] It is true that K.M. does not remember what led to any of them being in the room with W.S.
[100] W.S. and other S. family witnesses stated that W.S. had a headache that night and went into the room to the bed because of it, at dinner time.
[101] K.M. clearly described this occasion as cuddling and scratching backs. No movie was involved which distinguishes this occasion from the rest. Again, with respect to K.M.’s statement to police, when talking general terms about the occurrences, when she stated that sometimes they would be watching a movie and sometimes it would be just to scratch backs, when they were lying in bed. At trial, K.M. was also clear that not every time they were in bed together was to watch a movie and noted that she had mentioned cuddling before. She denied that she stated that it was always a movie or that was the interpretation of her statement to police.
[102] The defence questioning and interpretation of K.M.’s use of the words “same as before” namely that it extends to the activity leading to each occurrence does not reflect K.M.’s police statement. Again, when K.M. was questioned by police, the context of “same as before” by what I heard was with respect to the touching, not the activity leading to the touching. This was clarified at trial, and K.M. confirmed that it was referring to how W.S. touched her, not who was in the room or where.
[103] K.M. was challenged at trial with describing the room as “pitch black”.
[104] As to providing “ex-post facto” evidence, I noted that K.M. was not asked for details by the officer of the room and/or what she was looking at and/or if lights were on, at the time. K.M. raising at trial that the others would not have seen anything because it was dark, thus does not cause me concern.
[105] As to it being dark, and/or K.M.’s evidence, there was no television in that bedroom on the evidence. When the girls wanted to watch something, M. agreed it would be on a laptop, her laptop, that she would set up for them. It was dark. This was a cabin, not their home, in terms of other activities available to them. W.S. said he was in the room because he had a headache.
[106] The activity of “scratching backs” on the evidence, in general, was a relaxing thing as described by H.1, something they did. M. described it as a lighter motion using fingers. W.S. has been scratching backs since H.1 was a baby, it is a comfort bonding thing to him. W.S. testified he would do it when he was asked by the girls, including K.M. for soothing, comfort and bonding. The evidence of S. family witnesses was that they would take turns, all of them.
[107] During movie nights and/or scratching backs, positions in the bed varied.
[108] H.2 remembered her father had a headache but was otherwise fine, contrary to W.S.’s and M.’s description. W.S. also testified that he was having bowel issues but does not leave the bedroom on his evidence, he stays there for the rest of the night.
[109] It was also put to her that she never talked about H.1 and H.2 scratching each other’s backs to police. She was not asked.
[110] It was put to K.M. that H.1 and H.2 were doing nothing. In my view, this is not an accurate depiction of K.M.’s evidence. K.M. did not remember why H.1 and H.2 were on the pull out and not in the bed to scratch backs. There were five of them on her evidence. At movie nights not all of them are on the bed because there are too many of them. Her explanation as to why they were in the room in the dark doing nothing as suggested by defence, was that she could not remember. She was not agreeing that they were doing nothing. It is not unreasonable given the activity and state of the room, that K.M. would not know exactly what the others were doing or cannot remember. K.M.’s description of the Carpenter Lake occurrence included her being “zoned out” at one point. The family members had a history of engaging regularly in activities of either scratching backs (taking turns) or watching movies. The girls were like sisters. They did not pay attention to what the others were doing.
[111] K.M. could not remember how long this went on, in respect of the suggestion by defence that the evidence discloses that the family members were in the room for a long time doing nothing in the dark and or adds to implausibility; it does not. No timing evidence is disclosed on the evidence. K.M. also testifies that at some point H.1 and H.2 leave.
[112] K.M. was detailed about it being dark and what she was focussing on while it was happening, a little light under the door. She described the actions that took place, core details. She was consistent on them. They were not void of details to raise reasonable doubt on her descriptions of the acts.
[113] It was directly suggested that K.M. made up evidence as she went along, when it was suggested that it would not make sense for W.S. to touch her in front of them, and this is why she gave this evidence about people leaving and/or it being pitch dark. She disagreed.
[114] At Carpenter Lake, K.M. did not know if M. was there or not. She placed G., H.1 and H.2 as being there in the room. She agreed that she testified at the preliminary inquiry that they were there when W.S. was touching her. It is fair to say that K.M. appeared to, at trial, change her evidence, in that she testified that H.1 and H.2 were in the room right before the touching happened and left. She thought she had said this before. However, she never committed to an absolute answer during her trial evidence. She repeated “pretty sure” twice at trial. She was then taken to her preliminary inquiry evidence (read in), and she remembered stating that they were there, and that she did not state they left before the touching started to police. However, she did not agree that there was a hole in her story. She noted and pointed out after the excerpt was read, that she did say at the preliminary inquiry that they eventually left which presented as her demonstrating that was consistent. She also noted and pointed out her use of the word “believe” in the excerpt, which I interpreted as her presenting that she was not sure back then either, “not as walking back”. She did not agree that her use of “believe” was strictly related to just where G. was. When the excerpt was read, part of K.M.’s evidence in terms of H.1 and H.2 included “And then H.1 and H.2 were on, like I “think” a little pullout on the end of the bed and then eventually went back to their rooms. The preliminary inquiry response was to the question, “And, do you know where they were when W.S. was touching you?”. She stood to her position, that is what she “believed” at the time. Collectively on this point, K.M.’s evidence presented to me as K.M. trying to clarify/tell defence that she never said she was certain about this detail to anyone ever, while defence was putting to her that she was changing her evidence. I understood her responses and presentation as her attempt to tell defence that she never said she was certain, even back then, and that she was not saying she was 100 percent certain at trial either. Her explanation made sense to me, and she presented as doing her best to explain.
[115] G. does not remember going to the cabin. As such, there is no evidence from G. undermining K.M.’s evidence concerning G.
[116] I do not accept H.1 and H.2’s evidence that they never went into the master bedroom at the cabin. On the whole of the evidence, hanging out in their parents’ room together was a regular activity that happened a lot. Additionally, the issue of the cabin occurrence was discussed with them, by M. The way M. was gathering information, no matter the intention, caused me concern their memories were tainted and/or influenced by their loyalties to and/or feelings for their parents. H.1 agreed she did not have a specific memory of watching a movie on an iPad but she remembered being on a couch and having a movie night. She denied, contrary to the evidence of M. ever having a conversation about the cabin with anyone. Her response to whether she knew she was going to be asked about the cabin or movie nights, was odd, namely, “she did not know”. Contrary to the evidence of M., H.2 stated that no one ever talked to her about the cabin or movie nights. The trial evidence discloses that W.S., M., H.1 and H.2 had conversations about the cabin incident. M. described the conversation with their girls as more than one; one brief and one more detailed and she questioned them separately. M. testified that having had discussions with their girls she agreed they understood the conversations were related to K.M. and G., and that W.S. was being accused of touching them.
[117] W.S.’s evidence presented as wanting to distance himself from being alone with the children that entire day, that M. was always with the girls. W.S. presented as knowing that M. was with the girls all the time, but not being able to explain how he knew; he just knew. W.S. and M. had discussions on this incident as to what each remembered. W.S. testified that he and M. exchanged details of what they recalled happening at the cabin. This caused me concern on credibility and reliability.
[118] Even though H.2 never went into the bedroom on her evidence, and was apparently watching a movie, she stated she was confident W.S. was sleeping because he was snoring. W.S. however described M. as coming back with the children, that she was trying to quiet them down, came to bed with him and the kids went to bed. His evidence contradicts H.2 that he was sleeping and snoring and that a movie was watched.
[119] Further, it did not make sense, all the questioning M. did of H.1 and H.2 after W.S. was arrested, if there was no possibility of the children being with W.S. alone at the cabin, if no one ever went in their bedroom. M. on her evidence, albeit she states it was only for five minutes, left the cabin for snacks after the girls had returned after dinner.
[120] M.’s credibility and reliability were also questionable.
[121] M.’s evidence was clear that agreed it was fair that in May 2021, she’s trying to start to remember everything that she could possibly remember. She agreed she did not do this before and had no reason to do so before to recount the details. She takes these steps because she wanted to make sure she was making the best choices for her girls and nieces. She looked through her own photos. She agreed she wanted to see if there was something she did not notice and to help her recall.
[122] One piece of M.’s evidence on her discussions with H.1 and H.2 was that she questioned H.1 and H.2 to see if they saw anything. She explained she did this because they may not have realized what they saw, because there could have been potentially an innocuous detail that could have been missed. She asked in respect of the cabin the children if there was anything they could think of that happened at the cabin. This evidence strongly implies that she may not have seen everything whether she was there or not.
[123] M.’s evidence on her conversations with W.S. no matter how she answered discloses that she had detailed conversations with W.S. about the allegations, and interestingly, M. described W.S. as not much help in trying to remember anything. When asked if he would respond in some fashion, she indicated that honestly, he was not much help in her trying to remember anything.
[124] M. learned about the cabin the date W.S. was arrested. When she eventually spoke to W.S. after, she asked him if he did it.
[125] The point is that the evidence of the S.’s conversations and testimony on a whole for me, negatively impacted their credibility and reliability.
[126] On the other hand, the trial evidence does not disclose that K.M. discussed specific details of the occurrences with anyone prior to speaking to police.
[127] Accordingly, on the whole of the evidence, it does not defy logic in these circumstances that the children were in the bedroom cuddling and scratching backs in the dark because W.S. had a headache, there was no television in there, they were away from home in a cabin, and/or simply because it was an activity, they historically engaged in. It is not improbable and/or implausible on the evidence disclosed at trial.
[128] This occurrence is different from the Bruce Mines occurrence and Richards Landing. There was vaginal touching only at Bruce Mines. Richard’s Landing touching occurred during watching a movie and involved breast and vaginal touching with details as to how it stopped and where K.M. went after. Carpenter Lake does not involve watching a movie on K.M.’s evidence and is a very different scenario. The headache does not raise doubt for me. The dark room does not raise doubt for me. The fact that not all were on the bed itself does not raise doubt for me. There are so many issues with respect to credibility and reliability of the S. family witnesses on this occurrence.
[129] I believe K.M.
Richards Landing
[130] The Crown suggests that the evidence at trial proves beyond a reasonable doubt that this incident occurred, noting K.M.’s evidence of the core details of the touching, that the details that were provided can be considered unique; consideration that K.M. can describe the location, her position on the bed, W.S.’s position on the bed, the actions of W.S. and how it made her feel. K.M.’s evidence is trustworthy and credible. I agree.
[131] Summarily, specifically regarding Richards Landing, defence challenges the plausibility of K.M. being alone in the bed with W.S., M. being there, not hearing much about M. in her police statement, (already addressed above), that K.M. states this last occasion, she stopped the acts herself, and the issue of W.S.’s work schedule (already addressed above.)
[132] For the incident at the S.’s house in Richard’s Landing on St. Joseph’s Island, K.M. described this occurred after watching a movie. There was an abundance of evidence disclosing that movie nights were a regular activity in the S. house at the time and that where they occurred.
[133] Defence submits an inability on the part of K.M. to explain how she ended up alone in the bed with W.S. on so many occasions that he was able to touch her when she was very close to her cousins and M.S., her aunt, lived in the home and the touching was always said to happen in the context of family movie nights where the family gathered together in bed to watch a movie. First, K.M. did not ever state that she believed anyone saw. On this specific occasion, this is different from watching a movie together. It was after the movie on her evidence. She also did not say she was alone. She thought G. was there on this specific occasion. They were in his room again watching a movie. She believes that she, her sister, and he were in there and that was it.
[134] At trial, K.M. told the Crown that she was in his bedroom on the bed, on her side and he was beside her on the bed. He was on his side facing her back. G. was on the far side of the bed behind him. They were scratching each other’s back after watching movies. He then touched her chest and crotch area. She does not remember how it goes from scratching backs to having her chest touched. Her evidence included that he was behind her in terms of her vantage point and what he is doing. She felt uncomfortable. He touches her chest with his finger. He does the same like before. He is touching her chest with his finger under her clothes. He used his fingertips to circle around her nipple. He went down her belly to her crotch area. He touched her belly with his hand making small circles with his palms. He touched her crotch area with his finger the same as before. On this occasion he does not touch her anywhere else. She does not remember what she was looking at when this was happening. She does not remember hearing anything. She does not know what G. was doing while she was being touched; G. is not in her vantage point. She also testified that she was just zoned out. As to how it ended, she said she needed to go to the bathroom and then said she was tired and going to bed. After she went back up to Hailey’s room. She thinks G. is still in her uncle’s room with her uncle. This description is not void of details. On the whole of the evidence, her description of crotch area and how she was touched there was clear. K.M. nods her head in the affirmative to the police officer in her interview confirming that K.M. was telling her that W.S. touched her breast when referring to chest. K.M. did the same when the police officer was attempting to confirm that K.M. was telling her that W.S. touched her vagina when referring to crotch or groin. This happened on more than one occasion in the interview: three times. K.M. detailed what the touching was and how it occurred and the transition from breast to vagina. It was also different, in that she remembered her reaction of leaving on that occasion, making an excuse to leave the room. She remembered where she went after.
[135] As to others not being there or seeing, there was trial evidence of family members dispersing after movie nights were over. Some even fell asleep at times and left before the movie was over. M. would sometimes take some of the children upstairs to ensure they got ready and went to bed, while others stayed down with W.S. M. was responsible for snacks. W.S.’s children do not always place M. as in the room, referring to her getting snacks or even leaving to go to the bathroom. M. sometimes was playing on her phone when watching movies if she was there. The spots they watched at were not always the same according to the girls as to K.M. being in the bed beside W.S. If H.1 and H.2 were no longer in the room and M. was also not there, it makes sense the three of W.S., K.M. and G.S. were on the bed.
Other General
[136] I do not believe W.S. that he did not touch K.M. as K.M. testified. There are several reasons why I reject this evidence. One reason is that the trial evidence discloses an abundance of evidence that he and M. together, and even H.1 and H.2 had several conversations directly concerning the circumstances under which and locations at which the acts complained of were stated to have occurred. M., no matter the intention, presented as speaking to all S. family members, to obtain information. During the giving of his evidence that W.S. presented as trying to distance himself from being alone with the children; and wanting to present that M. as always being there. His own children’s evidence does not support same. M. described W.S. as not being helpful in respect of memories related to the incidents which causes question as to his evidence. With the Carpenter Lake incident, W.S. presented as knowing that M. was with the girls all the time, but not being able to explain how he knew; he just knew. Overall, there were a number of issues with the credibility and/or reliability of W.S.’s evidence. I have identified other concerns within this decision.
[137] The rest of the evidence does not leave me with doubt. With respect to M., H.1 and H.2, credibility and reliability issues were present on the trial evidence that negatively impacted same for each.
[138] The evidence disclosed that M. had several direct conversations with H.1 and H.2 concerning circumstances under which and the locations at which the acts complained of were stated to have occurred, with them understanding that K.M. was alleging that W.S. touched her. Both H.1 and H.2 presented as not wanting to acknowledge that either W.S. and/or M. had spoken to them about the allegations and/or the events that were the subject of the case. The S. family witnesses’ evidence did not add up or often coincide, and includes contradictions, to W.S.’s own evidence. Their evidence was not trustworthy or reliable. I have identified several concerns within this decision.
[139] I believe K.M. that she was touched by W.S. on the body parts she described in the manner she described at Bruce Mines, Carpenter Lake, and Richards Landing. While I agree that there were some inconsistencies and differences in K.M.’s evidence on some details regarding each, they did not rise to a level to raise reasonable doubt. I did not find her descriptions as void of detail on core issues. She was consistent on these issues. Explanations she provided were reasonable and supportable on the whole of the evidence for inconsistencies. Descriptions she provided were not implausible as submitted and supported on the whole of the evidence disclosed. The way K.M. gave her evidence, she answered the questions asked of her in the same manner, in chief and cross-examination. K.M. was articulate. K.M. presented as understanding the distinction between the truth and a lie and the necessity of telling the truth. This was clear from the clarification she made on the manner of touching with respect to her vagina, and her candid approach regarding inability to remember certain details. K.M. did present as honest, compelling, and truthful, testifying to the details she could remember. When she was unable to remember a detail, she stated so. I did not find that she exaggerated or presented as making up evidence at trial. She presented as trying to do the best she could to answer all questions.
[140] I weighed all the evidence as a whole. I understand the court is not to approach the case as a credibility contest, and I have not done that.
[141] The defence confirmed that delayed disclosure of K.M. and continued contact between K.M. and W.S., was not an issue on this hearing; that these are not issues they are asking me to make findings on in relation to the credibility issue of K.M.; they are not making those kinds of arguments in this case. Defence emphasized at the hearing that these issues did not form a strenuous part of their argument to the jury or in the materials for this hearing. If I am wrong with this interpretation, it would be inconsistent with the jury’s verdict to find that delayed disclosure and/or continued contact made K.M. less believable.
[142] At trial, a main defence theory included that all the allegations were lies that quickly snowballed out of control; that K.M. was mad at W.S. just before this all came out on Mother’s Day is no coincidence; that the allegations began as testing the waters for something to say to get back at W.S. if she got in trouble with C.V. for being unwelcome at the S. house; that it was an idea about ‘touching here and here' that was meant, to be shared just with kids but quickly became a serious police matter when adults were told about it by C.V.; that K.M. was never given a way to back out of her story; and it is understandable K.M. believed she would be in big trouble for telling anyone that she was touched if she wasn’t. The theory was presented that K.M.’s entire story was false. It would thus be inconsistent with the jury verdict to find that K.M.’s credibility was impacted by this theory as raising a reasonable doubt.
[143] For reasons set out herein, I am of the view that the aggravating facts, namely that W.S. was in a position of trust; that he touched K.M.’s breast and nipple and vagina and in the manner as described by K.M. on the Bruce Mines, Carpenter Lake and Richard’s Landing occurrences described by K.M. were necessary facts to determine to permit the proper sentence to be imposed in the case at hand; they are not inconsistent with the verdict; burden on these facts are met; they were facts disclosed by the evidence at trial and proven beyond a reasonable doubt; K.M.’s evidence was trustworthy and credible.
Conclusion
[144] To be consistent with the verdict, the findings essential to the verdict are that between January 1, 2014, and April 1, 2020, when K.M. was under 16 years of age; while in a position of trust, W.S. intentionally touched a part of K.M.’s body directly using his hands, for a sexual purpose, namely K.M.’s breast and nipples, circling her nipples with his finger and K.M.’s vagina, placing a finger in between and moving his finger around, on at least three occasions.
[145] This case is remanded to the date set for sentencing, namely February 3, 2025.
Released: January 22, 2025