R v KDH, 2012 ABQB 318

Court of Queen ’ s Bench of Alberta Citation: R v KDH, 2012 ABQB 318 Date: 20120515 Docket: 110455920Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - K.D.H. Accused Restriction on Publication: Identification ban – See the Criminal Code,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. NOTE: This judgment is intended to comply with the restriction so that it may be published.

Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I. Introduction................................................................................................................ Page: 3 II. Evidence..................................................................................................................... Page: 4 A.

Physical Evidence........................................................................................... Page: 4 B. Witness Testimony.......................................................................................... Page: 4 1. TM...................................................................................................... Page: 5 a. In-court Testimony.................................................................. Page: 5 b. Exhibit 10 - the Zebra Child Protection Recording.................. Page: 9 2.

RA.................................................................................................... Page: 10 a. Testimony............................................................................. Page: 10 b. Crown Cross-Examination.................................................... Page: 12 c. Defence Cross-Examination.................................................. Page: 13 3. KDH................................................................................................. Page: 14 III.

Credibility and Reliability......................................................................................... Page: 17 A. W.(D.) Analysis............................................................................................ Page: 17 B. Witness Credibility and Reliability................................................................ Page: 19 C. KDH’s Credibility and Reliability.................................................................. Page: 20 D. Disreputable “ Vetrovec ” Witnesses............................................................... Page: 23 E.

Witness Credibility........................................................................................ Page: 24 1. TM.................................................................................................... Page: 24 2. RA.................................................................................................... Page: 26 IV. Analysis.................................................................................................................... Page: 27 A. Sexual Assault............................................................................................... Page: 27 B.

Facts Not In Dispute or Established by Witness Testimony........................... Page: 29 C. Was the Sexual Contact Consensual?............................................................ Page: 30

D. Was TM’s Sexual Participation Coerced?...................................................... Page: 31 E. Did KDH have a Reasonable But Mistaken Belief that TM Consented?........ Page: 37 V. Conclusion................................................................................................................ Page: 40 Agreed Statement of Facts..................................................................................................... Page: 41

PART I:

DEFINITIONS............................................................................................. Page: 45

PART II: FACTS....................................................................................................... Page: 46 JA................................................................................................................. Page: 47 KH1.............................................................................................................. Page: 49 KH................................................................................................................ Page: 53 MA: Leduc; Edmonton; Egremont................................................................

Page: 54 TM................................................................................................................ Page: 57 DD(M).......................................................................................................... Page: 59 RA................................................................................................................ Page: 59

Section 163.1 Offences................................................................................. Page: 63 I. Introduction [ 1 ] KDH has been charged with a total of 40 counts of criminal misconduct. He has pled guilty to 27 of those charges (indictment counts 2-4, 6, 8, 11-17, 19-23, 25-26, 28-29, 31-36, 38, which are reproduced below in the agreed statement of facts). The Crown has informed me that it intends to stay 12 of the remaining charges. What remains is count five, whether KDH sexually assaulted TM, contrary to Criminal Code , R.S.C. 1985, c.

C-46, s. 271. [ 2 ] On May 11 th , 2012, I found KDH guilty of the sexual assault of TM pursuant to Count 5 of the Indictment. At that time, I advised the Defence and Crown that formal reasons for judgment in regards to this matter would be filed no later than May 15, 2012. What follows are the formal reasons for judgment. [ 3 ] At the beginning of this trial the Crown and Defence filed an Agreed Statement of Facts, which is reproduced as an Appendix to this decision.

The Accused was specifically asked and agreed that he admitted the facts in that agreement. [ 4 ] The Agreed Statement of Facts discloses a remarkable history of sexual misconduct. In a period of over seven years KDH sexually assaulted or interfered with five child victims, including his two biological children. He counselled incestuous activity between his victims and himself. He possessed, created, and distributed child pornography. In 2009 he was joined by RA, his then fianc é , who participated in many of these activities.

RA has also been charged with a number of sexual offenses that relate to those against KDH. RA ’ s trial is scheduled for the Spring of 2013. [ 5 ] RA had three daughters. KDH admits he and RA engaged in various sexual offenses with MA, RA ’ s then 13 year old daughter. A second daughter, DD was invited to engage in sexual activities with KDH, but no sexual contact appears to have occurred.

[ 6 ] The remaining and oldest daughter, TM, was 19 at the time of the alleged sexual assault and therefore was potentially a legal sexual partner. There is no question that KDH and TM engaged in sexual activities. TM, KDH, and RA testified that was the case. KH is admitted to have been shown a video recording of KDH, RA, and TM engaged in sexual activity.

The Agreed Statement of Facts admits: 1. that KH, the Accused ’ s biological son, observed KDH and TM engage in sex as directed by KDH, though KDH was unaware that those activities were observed, and 2. that MA heard KDH and TM engage in sex. [ 7 ] The chief question, therefore, is whether the sexual interactions between KDH and TM were or were not consensual. KDH says they were. TM and RA report at least one sexual assault. [ 8 ] Adding to the complexity of this scenario are a number of unusual factors.

There is general agreement that TM and RA, respectively daughter and mother, also engaged in incestuous sexual activities. TM had been given up for adoption by RA when TM was very young. The admitted sexual activities occurred only a few days after RA and TM had spent any significant time in each other ’ s company and ‘ reconnected ’ . That was also the first time TM had met KDH. [ 9 ] KDH, RA, TM, and MA lived together in a single household during the period of March 2009 to April 2009 in which KDH allegedly sexually assaulted TM. The Crown characterizes this household as “ highly sexualized ” .

A somewhat more elaborate explanation is that the members of this household engaged in a variety of fetish behaviours, particularly “ dominance and submission ” [ “ D/s ” ]. There is no dispute that sexual conduct, both legal and illegal, was commonplace. Residents in the home wore fetish costumes and performed different roles. KDH was the master, though there is a dispute on just what that role actually entailed. Nevertheless, there is no real dispute that the other residents provided him sexual favours. II. Evidence A.

Physical Evidence [ 10 ] The physical evidence that is relevant to the alleged sexual assault on TM is minimal. The Crown filed a number of photographs that were recovered from household computers. Some are a number of photographs of TM, DD and MA on a couch, kissing, touching, and partially exposing their breasts. All witnesses indicate these photographs were taken on the evening before the KDH/RA households moved to a new residence. [ 11 ] There is also a single photograph of a young woman with a penis in her mouth. The female was identified by TM as herself.

She said that the male was KDH, however the photograph does not include any obvious basis to confirm that identification. B. Witness Testimony [ 12 ] That means that the majority of the evidence for this case flows from the three persons who testified: TM and RA for the Crown, KDH in his own defence. 1. TM a. In-court Testimony

[ 13 ] As a preliminary note, TM ’ s testimony was somewhat disjointed, and at times vague. On direct examination the Crown all but led TM through her testimony, a point noted by the Defence. TM reports difficulty learning, and her testimony and courtroom conduct is consistent with a person who does not readily express her thoughts and emotions. A large proportion of her answers and statements were fragmentary, and required additional clarification to provide a context. [ 14 ] TM is the biological daughter of RA. She was adopted at birth and had only seen RA once or twice prior to March, 2009.

She wanted to get to know RA better. TM testified that when she discovered RA was living in Edmonton she contacted RA, and visited RA and her younger sister, MA. [ 15 ] In March, 2009, RA was moving to an apartment in the Bonnie Doon area of Edmonton. TM testified in the morning she helped with the move; that is when she first met KDH. TM reports that while she was in the moving van with KDH he began to ask her certain questions concerning her sex life, “ ... if it was really good or anything, and if she knew certain positions ... ” .

TM reports she said that it was none of his business. [ 16 ] That evening TM, MA, DD were drinking “ Breezer ” coolers in the new apartment. Her estimate is that she had two Breezers as she has a low tolerance for alcohol, it upsets her stomach causing her nausea and dizziness. She further said that she gets dizzy spells a lot. She and her sisters were joking around, giving hugs and kisses just like any normal family should show their love to one another. She characterizes this activity as “ having sisterly friendship -- like a relationship ” .

TM reports that RA and KDH videotaped the activity and that RA requested that TM try touching MA ’ s breasts. TM further reports that she and MA did not engage in that activity, but did hug and kiss. KDH watched, but did not say anything. He laughed and giggled. [ 17 ] Around this point TM had told RA that she had been kicked out of her previous residence. RA said TM could stay at the Bonnie Doon apartment for free. TM accepted and moved into the same room as MA, but slept in a separate bed. TM knew at this point that RA and KDH were in a boyfriend/girlfriend relationship. KDH and RA later became engaged.

RA and KDH slept together in a separate bedroom. The permanent residents of the household were RA, KDH, MA and TM. KDH ’ s two biological children, KH and KH1 came and stayed for about two to three weeks. TM does not appear to have been employed or engaged in any educational activities throughout this period, though she and other witnesses report that she did attempt to find employment. [ 18 ] Sex was a frequent topic at the Bonnie Doon apartment. TM testified KDH would use computers to access Internet forums on D/s topics.

He did so “ ... for the purpose of obtaining the dominance to control the women and the people in his household and they had to obey him, and if they didn ’ t obey him they would get seriously punished. ” TM reports that when he viewed these “ master forums ” he would discuss their content with RA.

TM listened to these conversations but just shook her head, because she did not agree with what KDH was saying, “ ... because no man should be able to take advantage of people like that and think they are a master of a household, and that everybody should be equal and you should be giving them the respect they need. ” [ 19 ] Nevertheless, TM reports that while she was at the Bonnie Doon apartment KDH would act like he was the master of the household, he was in control, that he was very demanding and controlling, and made people do things they did not want to do.

She says she was scared, afraid, and intimidated by KDH. He would punish her all the time, and would take things out on her. If RA was not happy KDH would send her for a punishment, such as sending her to her room, to go watch TV, or put out applications for a job. [ 20 ] KDH purchased a nylon fishnet outfit which he wanted TM to wear. There were two other outfits, one was RA ’ s old outfit while a third was a maid costume that belonged to KDH and RA. He also instructed that she wear an outfit that belonged to RA, and if TM did not comply she would be punished.

Punishment included cleaning the house, doing dishes, laundry, or having KDH chain her to a bed with a chain and collar. On one occasion RA put a collar on her neck with a leash and pulled TM around the house, during that event TM hit her eyebrow on the side of a door. [ 21 ] TM reports that during her stay at the Bonnie Doon apartment she became afraid for her life. There were weapons in the apartment. In cross examination TM identified the weapons as knives, but also reported she was afraid of objects such as glass ornaments. [ 22 ] TM said that she did not know what type of person KDH was, or what he might do.

[ 23 ] Defence counsel cross-examined TM on her perception of danger. TM reported on one occasion she touched MA ’ s breasts because she was afraid of RA, RA was very violent. RA would hit TM and leave bruises. RA hit TM ’ s head on a door. Another time KDH hit her on her right arm and left leg. TM recalled an incident where she fell down stairs because RA and KDH were shoving her upstairs to the bedroom. [ 24 ] KDH ’ s demands extended to sex. TM reports she watched KDH make KH, KH1 and MA view pornography on the household computers. He also tried to get KD and MA to have sex with one another.

TM reports KH and MA refused, but later did chat and became friends. In parallel, TM reports that KDH sent her and KH upstairs with pornography to view together; he wanted them to get together and have a ‘ threesome ’ with KH and MA. KDH told her he would like to have a mother and daughter get together; TM reports she replied she was very uncomfortable with that. [ 25 ] TM testified that KDH requested that she have sex with KDH and RA. They forced her to perform oral sex with RA and KDH.

Though her evidence on this point was less than entirely clear, TM appears to indicate there were three episodes of sexual interaction between herself, KDH, and RA. [ 26 ] Chronologically, the first incident occurred in the apartment kitchen. TM reports that prior to this point the only thing she had said to KDH about having sex with other people was that TM felt uncomfortable about it, and that she did not want to do those kinds of things. KDH was on the computer; TM was washing dishes. TM was wearing her nightgown over a bra and underwear.

When she went to get some salad from the fridge and placed it on the kitchen counter, KDH approached, pulled her up on the counter, lifted her shirt, and pushed her down hard. TM reports that she “ froze up ” and could not move. KDH spread her legs open wide and engaged in vaginal intercourse. He grabbed her hips and breasts. TM told KDH to stop, but he did not listen. RA was present but did nothing. TM describes that during the sexual assault that she was in “ a trance ” , was very scared and afraid, and did not know where she was. [ 27 ] At the end of the assault TM snapped right out of her trance.

KDH told RA to come into the kitchen. TM told KDH and RA she was going upstairs, she ran upstairs crying. TM testified that at this point her main concern was to get upstairs and act normal in front of MA because she did not want MA to worry about her big sister. TM also wanted to be alone. MA asked if TM was ok. TM replied she was. MA allegedly then said “ Well, I know you guys are doing something bad downstairs ” . [ 28 ] After this alleged first sexual assault in the kitchen TM never spoke to either KDH or RA about what happened. She reports she had not consumed alcohol at the time of that assault.

When asked why she did not then leave the Bonnie Doon residence TM explained she was afraid she would be left on the street, would not be able to work, or have a roof over her head. [ 29 ] During cross-examination TM provided more details on the ‘ kitchen incident ’ . KDH came up behind her, and forced sex. TM cried and “ blacked out ” . TM could not move as her arms were trapped in the sink. She could not defend herself or push KDH away. TM asked KDH to stop and RA for help by saying to RA, “ can you come here? ” She screamed “ stop and stop ” and kept on crying. Her voice was loud, everyone could hear.

The sex continued for 10 to15 minutes, and she was “ blacked out ” for most of that period. She explained that when she “ blacked out ” that meant she lost her vision, and could not hear very well. This kind of process also occurred at the other incidents, but in later sexual events in the apartment her hearing was “ much stronger ” . [ 30 ] After KDH got off TM she did not look at KDH or RA and immediately went upstairs.

That is where she spoke to MA. [ 31 ] She further testified that during the ‘ kitchen incident ’ , and after reviewing a recording, (the pre-trial recorded testimony to Zebra Child Protection personnel (Exhibit 10) [the “ Zebra interview ” ]), she remembered that RA was in the room at the time of the sexual assault. She further said that KDH tried to force her to “ make out ” with RA. TM did not want to and that she kept telling KDH “ no ” all the time. [ 32 ] A second sexual encounter occurred when KDH came home from work. RA then called TM into their bedroom. MA was already present, but was then kicked out.

TM testified that she was curious as to what was in RA ’ s “ box ” and wanted to know what the contents looked like. KDH and RA showed her its contents: anal beads, sex toys, and a whip. KDH then began to show TM his pornography collection. He asked if TM would be comfortable with getting together with himself and RA. She replied “ no ” . KDH responded that “ I ’ m your master, you ’ re supposed to listen to me, take off your clothes ” . RA told TM to listen to KDH and take off her clothes. TM was scared and feared that KDH and RA would gang up on her and that she would be punished. She thought KDH could

also kill her. TM took off her clothes, and was “ scared, afraid, and in shock ” . TM only recalls afterwards that KDH instructed TM to engage in oral sex with RA, and that KDH instructed TM to masturbate him and perform oral sex on KDH. While RA and TM were performing oral sex on one another KDH would touch them with his penis. KDH also penetrated TM vaginally. [ 33 ] The third alleged sexual encounter was recorded with a video camera. KDH and RA used the camera to record sexual activity between TM, RA, and KDH. This encounter took place in KDH ’ s and RA ’ s bedroom.

TM told KDH and RA that she did not want to have sex with them. TM reports she would lay on the bed and KDH would position her in different sexual positions. TM said nothing. After the video recording was made TM did not leave the residence because she was afraid that MA would be stuck in a situation without TM being there to comfort her.

Nevertheless, TM decided to leave after KDH and RA took advantage of her in the third encounter. [ 34 ] In some of her testimony, TM seemed to indicate that one of the bedroom encounters was on the same date as the ‘ kitchen incident ’ , and that after the ‘ kitchen incident ’ , KDH and RA had essentially dragged TM to their bedroom, where sex occurred. TM ’ s narratives on this post- ‘ kitchen incident ’ and the two ‘ bedroom ’ sessions is inconsistent and difficult to align.

If, indeed, there was a post- ‘ kitchen incident ’ session of group sex, it is not clear whether that was the second or third encounter. [ 35 ] TM says that at one encounter (presumably the second or third encounter) KDH put anal beads in her rectum and then engaged in anal sex. [ 36 ] Defence counsel observed that she had described the ‘ kitchen encounter ’ in a different manner in her pre-trial recorded testimony to Zebra Child Protection personnel (Exhibit 10). Then she said she had sex with both KDH and RA in the kitchen. TM now provided an expanded time line of events.

The ‘ kitchen incident ’ came first, and she did know that RA did not have sex with TM at that point. After the ‘ kitchen incident ’ , KDH, RA, MA, and herself watched a movie. TM sat on the edge of the bed with MA, KDH and RA on the other side. TM felt a little more safe. Around 8:30-9:00 p.m. KDH showed TM some pornography, and then KDH and RA kicked MA out of their bedroom. KDH locked the door and closed it. He and RA forced TM to remove her clothes. She refused and repeatedly said no. KDH responded: “ You have to listen to me. I ’ m your master. ” Sex followed.

This expanded narrative seems to incorporate both the first ‘ kitchen incident ’ and aspects of the other two encounters. [ 37 ] TM reports she observed KDH touching MA ’ s breasts. MA told KDH to leave her alone. TM says KDH did stop, and that was the only occasion she observed sexual contact between MA and KDH. [ 38 ] Ultimately TM left the Bonnie Doon apartment. KDH and RA accused TM of stealing money from them, and packed up TM ’ s belonging. They then agreed to give TM another chance. That was followed by a trip to a store where they bought a chain and two locks.

These were combined with a collar already at the apartment. TM told RA and KDH that they were not to put that on her, and she began to “ freak out ” . They tied her to the bed. TM reports KDH threatened to kill her, because she was accused of stealing money at a time when she had asked him for money. [ 39 ] There were no further incidents with KDH after that point.

TM left the apartment several days later. [ 40 ] During cross-examination TM explained that she did not go to police because she did not like police as they had failed to believe her about KDH and RA, and also did not believe TM when she was robbed four blocks from the Bonnie Doon apartment. [ 41 ] TM viewed Exhibit 13, a collection of 13 photographs. She identified certain photos as being from the March, 2009 incident of MA, DD, and TM ‘ fooling around ’ during the move. Photograph seven was a photograph of a female individual performing oral sex on an male person. She initially identified the female as RA.

She later changed her opinion, and said that person was herself and the male was KDH. b. Exhibit 10 - the Zebra Child Protection Recording [ 42 ] Pre-trial TM was interviewed by personnel at the Zebra Child Protection service. That Zebra interview was audio/video recorded. At trial, some parts of that interview were entered into evidence. The excerpts generally relate to the ‘ kitchen incident ’ .

[ 43 ] TM ’ s narrative is similar to the account at trial, but includes a number of variations. MA had been ordered upstairs to watch television. TM says she was forced to engage in sexual activity with both KDH and RA, rather than only KDH. In this narrative RA entered into the kitchen. After KDH was done with TM, TM pulled on her clothes and went upstairs. KDH then moved on to RA. [ 44 ] TM indicates different clothing; she says she was wearing pants that KDH unbuckled and pulled down, and that she wore a shirt, rather than a nightgown.

The encounter started with sexual touching and escalated to “ doggy-style ” intercourse. The position described resembles the at-court narrative, TM was bent over in the kitchen as KDH touched her breasts and engaged in vaginal intercourse. TM was “ in shock ” or “ in shock mode ” and could not move or say anything. In this narrative TM is explicit, she said nothing, but instead was frozen, scared and frightened. 2. RA a. Testimony [ 45 ] RA is TM ’ s biological mother. She is facing criminal prosecution in relation to the same events involved in the action against KDH.

She is best described as a reluctant witness. The answers she gave to Crown and Defence questions were minimal, hesitant, and appeared incomplete. When asked to elaborate or explain, she often said she could not, or did not remember. RA ’ s reluctance continued even after her counsel advised her as to her legal rights regarding any testimony she may give during these proceedings. [ 46 ] RA ’ s description of how TM came to stay with her in the Bonnie Doon residence largely aligned with that provided by TM. RA invited TM to stay as she had nowhere else to go.

KDH also resided with RA. [ 47 ] In RA ’ s opinion TM ’ s ability to learn was not up to par and RA believed that TM has a mental disability. RA said that TM was able to voice for herself. [ 48 ] RA commented on the March, 2009 photos of her daughters on the day of the move. She said the girls were just goofing around, and recalled that at one point she said their behaviour was inappropriate and told them “ to knock it off. ” [ 49 ] RA testified that she saw something happen to TM at the Bonnie Doon residence which caused her to call the police, and that this something was a rape that involved KDH and TM.

This “ rape ” appears to relate to the ‘ kitchen incident ’ described by TM. Their narratives have certain similarities. [ 50 ] RA testified that RA, KDH and TM were drinking “ Breezers ” prior to the “ rape ” in the kitchen. KDH purchased the alcohol. TM obtained those drinks from the fridge. RA ’ s testimony varied as to whether MA was present or asleep. [ 51 ] RA explained that she observed “ a rape ” in the kitchen, in front of the sink with TM facing towards the dining room. RA was sitting in the dining room, which was right across from the kitchen. There was no obstruction to RA ’ s line of sight.

Her description was sketchy, but indicated a lot of sexual touching. TM kissed KDH. RA testified that the kitchen activities were followed by group sex between herself, TM and KDH upstairs in the bedroom she shared with KDH. RA said that no sex happened in the kitchen, but that TM and KDH did have sex upstairs. [ 52 ] RA provided a limited explanation of the kitchen activities. When asked to explain what took place in the kitchen that day that made her say that “ he raped her ” , RA said all she could remember was KDH touching TM and kissing her.

RA also said that she did not observe anything from TM while she was in the kitchen with KDH that made her believe that TM did not want to have sex. RA recalled that while KDH was kissing TM he beckoned RA to come and join; she refused.

[ 53 ] Upstairs in the bedroom KDH directed TM and RA to do things. KDH first played with their breasts and vaginas, and then KDH engaged in intercourse with both RA and KDH. [ 54 ] When pressed by the Crown as to what happened between KDH and TM in the kitchen that caused RA to characterize that incident with the word rape, RA replied that, “ I guess I can ’ t tell you. I don ’ t know ” . When asked why she reported it to the police in that way, RA replied “ it seemed like that, I guess ” .

When requested by the Court to answer the Crown ’ s question, she replied to the Crown that she could not because she had, “ blocked a lot of things out ” . She further said that although she used the word “ attack ” in her description to the police, she did not now know why she did so. [ 55 ] RA testified that prior to the ‘ kitchen incident ’ , she did not know how much TM had to drink, although RA believed that all three, RA, KDH and TM, were intoxicated.

She elaborated that she believed that the fact that TM was drunk did have something to do with the rape: “ I think that she would have had -- fought him off more if she was of more sound mind ” . The Crown asked repeatedly whether or not KDH got TM drunk; RA replied “ Of course. He bought it. ” [ 56 ] RA also reports an encounter between KDH, RA and TM which was video recorded. It was KDH ’ s idea to make a recording, and the encounter was in the bedroom RA and KDH shared.

RA reported that KDH told RA that one of his fantasies was to be involved with a mother and daughter. [ 57 ] The Crown asked if the video recorded encounter would be one RA described as a “ rape ” . RA said she could not remember. This was despite the fact that RA had the opportunity to refresh her memory of her prior police statements that day. When provided with a statement RA gave to police RA acknowledged that she had described the video recorded encounter to police as a rape. RA explained why: He would voice to me things that he wanted to do to children -- to children.

He would voice to me that -- he had -- he had told me what he had did to his -- his own children and to a girl named [J]. He would -- he would tell me the things that he wanted to do to MA, and that he -- he had told me beforehand he wanted to -- to rape TM. And so these are reasons why, you know, I believe that it was rape. [ 58 ] RA testified that after these encounters TM began to act as though TM and KDH were a couple.

That was despite the fact that RA and KDH became engaged prior to the video recorded encounter. [ 59 ] RA explained that ultimately she left KDH because she knew all of these things that KDH was doing were wrong, and that RA and KDH had a verbal argument. b. Crown Cross-Examination [ 60 ] In light of this account the Crown sought to cross-examine RA on her testimony. Crown counsel highlighted the following part of RA ’ s May 3, 2009 written witness statement: [KDH] raped my oldest daughter, TM. He got her drunk and attacked (raped) her in our kitchen. Several days later RA was interviewed by Detective McVeigh.

That interview included the following exchange. Q. But we understand he attacked her. A. He sexually attacked her in the kitchen.

Q. Okay. What did he do? A. He was fondling her, and he had sex with her in the kitchen. I concluded this inconsistency was a valid basis for Crown cross-examination. [ 61 ] RA in cross-examination acknowledged that she knew of TM ’ s limited mental capacity and condition, and was aware that KDH had fantasized about raping TM. She also indicated that KDH made all the decisions in the household, and that included sexual activities. He initiated those activities and no one else had any say in that.

Nevertheless, RA took no steps to warn TM, and during the alleged rape RA did nothing to stop KDH. [ 62 ] However, RA ’ s explanation of the “ rape ” continued to be vague. She now stated that she could have chosen a better word to label the ‘ kitchen incident ’ . TM was old enough to have sex and to drink. KDH did nothing other than touch and kiss TM. But RA was not 100% certain of what she could recall.

RA indicated that at the time she was not really paying attention to what was going on between KDH and TM; she was in the dining room on the computer and trying to ignore the interaction between TM and KDH. [ 63 ] On the role of alcohol the following exchange occurred: Q. He got her drunk, because that ’ s what you saw him doing. He got her drunk and then he had intercourse with her, isn ’ t that correct? A. Yes. [ 64 ] However, RA continued to refuse to provide explanations of her prior statements. When asked why she said KDH had “ sexually attacked ” TM, RA replied that she honestly could not remember.

She could not remember if KDH had engaged in intercourse with TM in the kitchen. c. Defence Cross-Examination [ 65 ] Defence counsel also cross-examined RA on the ‘ kitchen incident ’ . RA said TM and KDH kissed one another. RA said she could not remember whether she told Detective McVeigh that: “ from what I remember really I don ’ t think [TM] was protesting ” . Later she confirmed that TM did not protest. Then RA said she could not remember if TM screamed, protested, struggled to get away, or whether KDH held TM down.

All she could remember was the kissing. [ 66 ] Defence counsel suggested an alternative scenario: Q. Now, [RA], I ’ m going to suggest you do remember what happened that night. I ’ m going to suggest the reason you are saying you don ’ t remember is because what actually happened that night is that [KDH] and [TM] were having sex in the kitchen. He beckoned you to go over and you complied, went over and performed cunnilingus on your daughter, would that be accurate? A.

I really don ’ t remember. [ 67 ] That said, RA confirmed that she could remember going upstairs later on and having intercourse with KDH and TM, though RA qualified her answer that she could only remember a part of that encounter, RA could remember being on top of TM, and that KDH directed and had intercourse with both women.

[ 68 ] RA confirmed that there was a video recording made of TM, RA, and KDH, but that was a single occasion. RA again provided only minimal explanation of the encounter, she remembered being on top of TM in a sexual context. [ 69 ] RA said that TM had a flirtatious aspect and that TM flirted with KDH and said sexual things to him. RA was asked and confirmed that she was jealous over the attention that KDH had paid to TM. She confirmed she had explained the basis for that jealousy to police: A.

Well, she was, you know, sorry, well she was trying to, you know, touch him and just her, the way she started talking was very foul. Q. Give me an example? A. Oh, just talking all sexual and stuff like that – Q. M-hm, okay. A. You know well I will turn you on and – Q. Okay. A. This stuff. And then I do remember one incident he turned around and he bought her this body suit or something, but you could see through it and it had an open crotch. [ 70 ] RA also commented on the fetishist character of the household.

She confirmed KDH was the master, and that she and KDH engaged in sadomasochism, bondage, and that their master/slave relationship was more than role-playing but extended to their “ real life ” interactions. She confirmed that if KDH ordered her to walk around in public or at work with a collar and leash then she would comply. She would wear sexual outfits in public if ordered. This master/slave context existed at the time of the ‘ kitchen incident ’ , and she did not want to engage in the group sex with TM and KDH, but did so as she had to comply with KDH ’ s wishes and she was a slave.

That said, when Defence counsel suggested the master/slave relationship did not exist outside role-playing, RA replied “ No, I guess not. ” 3. KDH [ 71 ] KDH testified in his own defence. He had earlier acknowledged that the Agreed Statement of Facts was correct. His testimony was given in a calm, detailed manner. The narratives KDH described were usually complete and chronological. When answering questions from Defence counsel KDH provided immediate, detailed answers.

He was more hesitant and occasionally evasive during cross-examination. [ 72 ] In most cases KDH identified the same sequence of events as TM and RA, though his versions were considerably more detailed. [ 73 ] KDH ’ s version of his first meeting with TM included a celebratory visit to a Chinese restaurant by himself, TM, MA, DD, and RA. KDH described that all the females present, including RA, acted in a very sexual manner, for example performing fellatio on bottles. The party left the restaurant, purchased a large amount of alcohol, and went to the Bonnie Doon apartment.

The sexual conduct escalated; girls bit each other ’ s breasts, there was stripping, and RA repeated the bottle fellatio performance while others cheered. KDH said he did not approve of the restaurant activities, and that KDH and RA criticized TM for biting her sisters ’ breasts and leaving marks.

Some of these activities were photographed. [ 74 ] KDH confirmed that the ‘ kitchen incident ’ occurred. In his version, earlier that day RA had shown TM BDSM (bondage, domination, sadomasochism) web sites, and the communications RA had with persons on those sites. RA wanted to know whether TM would be interested in getting involved in BDSM activities, or if any part of those activities were of interest. KDH said he did not hear most of that conversation, though he was present for at least two hours and did hear TM say that she was quite excited by what she was viewing.

TM wondered how to start, and to whom to talk. RA offered to train TM. [ 75 ] KDH explained he too was quite new to this kind of activity, bondage and domination appealed to him, but not other aspects that involved pain. [ 76 ] By this time the group was drinking. They had started at about 2:00 p.m. MA had gone to bed, while KDH operated a computer in the dining room with RA and TM on either side. KDH estimated that TM and RA had consumed six coolers each; he had about six beers. The trio viewed videos. TM was asked by RA and KDH if she liked what she saw and wanted to go further. TM said yes.

KDH asked RA if she wanted to go further, she too agreed. KDH removed TM ’ s top. RA said she loved the video and wanted to try some of it. TM responded that she had finally found some people who were into the same things as she was, and that understood her. Both women cuddled KDH, and he fondled their breasts. TM moaned and cooperated. Both women fondled his penis. [ 77 ] KDH decided that he and TM should move to the kitchen which was better lit. RA stayed in her computer chair and watched. KDH removed TM ’ s remaining clothing with her assistance and performed oral sex on TM.

TM was enthusiastic; she giggled, rubbed KDH ’ s hair and held his shoulders and dug in her fingernails. TM moaned and said “ yes ” . This continued for about 10 minutes, then KDH lifted TM onto the counter and they engaged in vaginal intercourse, facing one another. Again, TM ’ s response was cooperative and favourable. KDH reports TM said “ yes ” , “ oh god ” , and “ the rest of the good stuff ” . She did not scream for help or ask KDH to stop, though she did request that he not ejaculate inside her; KDH promised he wouldn ’ t. [ 78 ] Throughout this process RA watched and masturbated.

KDH stopped the intercourse to avoid ejaculation, and moved to the side. KDH put a hand on TM ’ s knee, looked at RA, and said “ Come here. ” RA “ veritably flew across the room ” , went down on her knees and performed oral sex on TM for 20 minutes to “ finish her off ” . TM let out a little shriek when she felt RA, but did not say no or push RA away, and instead held RA ’ s head during that phase of the encounter. Again, TM only said “ oh god ” and “ oh yes ” . [ 79 ] KDH testified that the group at this point went upstairs to the RA and KDH bedroom and engaged in sex.

There was no real conversation, just a lot of giggling and intimate touching. KDH recalled that he had asked TM if she wanted to join the other two, and her exact words were “ yes ” and that “ she had never done that before ” , and by that meant engaged in a “ threesome ” . KDH was explicit that there was no pushing or pulling up the stairs. [ 80 ] RA performed oral sex on TM, and when RA asked TM to reciprocate, TM said no. There was intercourse, and the group “ fell into a blissful slumber ” . [ 81 ] KDH said that there were many sexual encounters between himself, RA, and TM. All were consensual.

Activities included oral sex, masturbation, and digital penetration. TM never said anything to suggest she did not consent, instead she was very happy and willing. TM would run and jump into his arms, kiss and hug KDH, and tell him what she wanted to do. Another encounter three days later between TM, RA and KDH was videotaped. TM did not protest that the sex was recorded. All three operated the camera. [ 82 ] KDH explained that TM wanted to participate in the fetish element of the household ’ s activities. TM wanted a collar as a slave training tool, RA suggested that as part of the BDSM lifestyle.

TM was bubbly and happy when that was purchased. RA and MA were present at that point. KDH reported TM never protested being ‘ collared ’ , and instead enjoyed that fantasy play and wearing various costumes. When TM was given a fishnet body stocking by KDH she gave a loud shriek, gave KDH a big hug and kiss, and immediately ran to the bathroom and put it on. [ 83 ] Bondage was a play activity between TM and KDH. The equipment KDH used was only held together by “ velcro ” and could be removed with minimal force. RA took a harder line, and used restrains such as chains that TM could not escape; KDH did not abide

by that. RA also viewed D/s activities as a lifestyle, rather than a game. [84] This chaining event appears to relate to the unlawful confinement charge. KDH said he was with MA and not in the room atthe time, he heard chains rattling and TM crying, and asking for the restraints to be removed. KDH yelled loudly: “That’s enough. Takethem off!”. When RA did not comply he said “I don’t care. Take them off now!” RA complied. [85] KDH emphasized that TM was never the subject of violence from himself.

The video recording of RA, TM, and KDH waskept private and never shown to anyone. [86] Ultimately TM left as a consequence of fights between RA and TM. [87] During cross-examination, KDH confirmed he had no discomfort with sex in an incest context. Rather, that was one of hisfantasies. He denied he said he wished to rape TM. He was pretty sure that he never said he wanted to hold somebody down and rapethem.

In his mind, “they say stop, and you don’t, then you’re a rapist.” KDH said he obtained consent to have sex with MA, sexualcontact he agreed had occurred. [88] In KDH’s opinion, TM was never under real restraint. She could say no to his requests and would not be kicked out. The D/sactivities in the household were a sexual game, nothing more. That said, KDH agreed that once TM became a part of the household’sfetish context, TM was under those rules as well as RA. The rules were his. TM would be punished if she did not do what he asked. Thesexual desires of KDH were a part of those rules. III.

Credibility and Reliability A. W.(D.) Analysis [89] KDH testified in his own defence. His evidence is that TM consented to engage in sexual activities with himself. KDH sayshe had no reason to suspect that TM’s activities were anything but voluntary. If believed, that would mean that KDH is not guilty of thesexual assault charge that involved TM. [90] A specific three-step procedure, defined by R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 at para. 11, 63 C.C.C.(3d) 397 [“W.(D.)”] is followed where the accused advances evidence that would, if accepted, mean an offense had not occurred: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [91] The W.(D.) analysis is necessary to ensure that the burden of proving an accused’s guilt beyond a reasonable doubt remainswith the Crown, and is not inappropriately shifted to the accused. Justice Binnie in R. v.

J.H.S., 2008 SCC 30 at para. 13, [2008] 2S.C.R. 152 [“J.H.S.”], explained: W.(D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the

offence beyond a reasonable doubt is of fundamental importance but its application should not result in a triumph of form over substance. ... [Emphasis in original.] [ 92 ] A useful outline for the application of a W.(D.) analysis is found in R. v. Chittick , 2004 NSCA 135 at paras 21-25 , 228 N.S.R. (2d) 81 : ... A trial judge will be found to have erred, if upon review of the judge's reasons in light of the trial record, it appears that he or she simply chose between alternative versions offered by the Crown and the defence and, having done so, convicted if the Crown's version was preferred ...

The question for the appellate court in a judge alone case is whether, upon consideration of the whole of the judge's decision and the evidence at trial, it appears that the judge did not apply the proper test and therefore did not apply his or her mind to the possibility that despite having rejected the evidence of the [accused], there might nevertheless be a reasonable doubt ... It is not an error for a judge to make a finding of credibility as between the complainant and the accused , particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty.

While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W. (D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. ... Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant. ... An error under the W. (D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed.

To do so misses the third and critical step in the application of the burden of proof . [Emphasis added, citations excluded.] [ 93 ] The W.(D.) procedure requires that this Court must first review and weigh KDH ’ s testimony on its own merits. A choice to reject that testimony must be justified. Only afterwards this Court must weigh his testimony in the context of the entire case, including the testimony of other witnesses. As stated in R. v.

Turmel , 2004 BCCA 555 at para 11 , 203 B.C.A.C. 236 : The error lay in the trial judge's direct progression from a finding that the complainant was to be believed, to the conviction of the accused. This logical jump does not satisfy the fundamental question required to be asked and answered by the finder of fact: does the evidence as a whole satisfy one as to the guilt of the accused beyond a reasonable doubt ? [Emphasis added.] See also R. v. R.E.M. , 2008 SCC 51 ; R. v. Sheppard , 2002 SCC 26 , [2008] 3 S.C.R. 3 ; R. v. L.(C.J.) , 2004 MBCA 126 , 190 Man.R. (2d) 177 . [ 94 ] In R. v. C.

L.Y. , 2008 SCC 2 at para 7 , [2008] 1 S.C.R. 5 , Abella J. reinforced that a W.(D.) analysis is, at a fundamental level, evaluated on a functional rather than a formal basis, when she said: The key is whether the correct burden and standard of proof were applied, not what words were used in applying them ...

Its purpose was to ensure that triers of fact – judges or juries – understand that the verdict should not be based on a choice between the accused ’ s and the Crown ’ s evidence , but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused ’ s guilt. [Emphasis added.] See also R. v. Dinardo , 2008 SCC 24 at para 23 , [2008] 1 S.C.R. 788 . B. Witness Credibility and Reliability [ 95 ] Witness credibility and reliability is a challenging task for the finder of fact. The multifactoral, contextual, and complex

character of this task was explained in White v. R., (SCC), 1947 CarswellOnt 8 paras 8-10, [1947] S.C.R. 268, where thecourt said: The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law and,in so far as the language of Mr. Justice Beck may be so construed, it cannot be supported upon the authorities.

Anglin J. (later ChiefJustice) in speaking of credibility stated: by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge andpowers of observation, judgment and memory – in a word, the trustworthiness of their testimony, which may have depended very largelyon their demeanour in the witness box and their manner in giving evidence. Reymond v. Township of Bosanquet [(1919) (SCC), 59 Can. S.C.R. 452, at 460]. The foregoing is a general statement and does not purport to be exhaustive.

Eminent judges have from time to time indicated certainguides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate allthe possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and theweak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity toremember and his accuracy in statement are important.

It is also important to determine whether he is honestly endeavouring to tell thetruth, whether he is sincere and frank or whether he is biassed, reticent and evasive. All these questions and others may be answered fromthe observation of the witness' general conduct and demeanour in determining the question of credibility. [Emphasis added.] [96] Another helpful expression of the witness credibility and reliability was provided by Brown J. in R. v. Jurado, 2007 ONCJ 44at para 19, 73 W.C.B. (2d) 93: ... I must consider the witness's perception, memory and sincerity.

I must consider the witness's ability to observe, store, recall and reportevidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. I must consider thewitness's evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidencefrom other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies andinconsistencies from time to time. Such is the nature of our human personalities and frailties. These are to be expected.

Someinconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole. Iam able to accept some, all, or none of a witness's evidence. [97] A useful and recent review of the principles and factors that apply to the Court’s evaluation of witness credibility is found inR. v.

Plews, 2010 ONSC 5653 at paras. 320-335: The court may believe all, none or some of a witness' evidence ... ... a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weightto different parts of the evidence that the trier of fact has accepted. ... ...

To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, suchevidence need not directly implicate the accused or confirm the complainant's evidence in every respect - the evidence should, however,be capable of restoring the trier's faith in the complainant's account ... ...

The fact that a complainant pursues a complaint cannot of course be a piece of evidence bolstering his or her credibility -- otherwise itcould have the effect of reversing the onus of proof ... ... in the circumstances of a particular case ... the issue of delayed complaint as counting against the veracity of the complainant's accountof assault.

The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and willvary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneouscomplaint ...

... The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered ... Evidence of a witness' motive to lie may be relevant as well to the accused qua witness ... [Citations omitted]. C. KDH ’ s Credibility and Reliability [ 98 ] The first step in a W.(D.) analysis requires that I evaluate KDH ’ s credibility and the reliability of his evidence. This evaluation is conducted without reference to the testimony of TM and RA. In brief, KDH presents an account that is not credible.

Further, his account is inconsistent, and in particular does not align with the Agreed Statement of Facts that he, at the beginning of trial, specifically endorsed. [ 99 ] KDH reports that he and TM engaged in sex on many occasions. RA was sometimes involved. KDH says that, by any standard, TM apparently always consented. There were sex games that involved roles, KDH was the master and was in charge. Nevertheless, TM always had a choice to say no, and if she did there would be no negative implications, at least from KDH. [ 100 ] If believed, that evidence is either an indication that: 1.

TM ’ s claim that she did not consent is a fabrication, or 2. KDH had a mistaken but honest belief that TM had consented to sexual activity with him. Either alternative would mean that KDH is not guilty of the sexual assault of TM. [ 101 ] On its own, I do not believe KDH ’ s testimony. [ 102 ] First, his narrative is bizarre. It proposes that a young woman, upon meeting her birth mother for essentially the first time, would enter into an incestuous sexual relationship with that mother within mere days of their first substantial interaction.

That would have both persons defy a powerful and near universal social taboo. According to KDH, not only had this young woman entered into that incestuous relationship, but the young woman also included her mother ’ s boyfriend (and soon fianc é ) as a part of that sexual circle. [ 103 ] However, not only does KDH recall an incestuous triad, he then places that sexual activity in a powerfully fetishist context, with himself as master. The young woman here was readily recruited.

After a day of viewing fetish web sites with her mother she was immediately ready to adopt a new lifestyle and engage in socially and legally prohibited sexual activities. That, with persons who were near strangers. [ 104 ] There are undoubtedly young women who do have an active interest in fetishist activities, including D/s and sexual role-playing.

However, for this kind of relationship to emerge, without coercion, and in an incestuous context, after only a few days of becoming acquainted with a new household, seems very improbable. [ 105 ] Second, KDH ’ s testimony conflicts with the agreed statement of facts, which he himself agreed was true and accurate. KDH said that the video recording of the sexual encounter between TM, RA, and himself was kept private.

However, the agreed statement of facts indicates that KDH admits he showed that recording to his biological son, KH. [ 106 ] In cross-examination, KDH said sexual contact between himself and MA was consensual. The Agreed Statement of Facts indicates that KDH sexually assaulted MA in a Leduc hotel room while she was drugged and unconscious. Perhaps KDH sees that as consensual sex, however, that is not a legal form of consent: R. v. J.A. , 2011 SCC 28 , [2011] 2 S.C.R. 440 . In any case, MA could not

consent to sexual activity with KDH given their ages: Criminal Code, s. 151. [107] Another discrepancy between KDH’s testimony and the Agreed Statement of Facts relates to the incident where TM waschained to a bed. KDH has pled guilty to Count 6, that he unlawfully confined TM contrary to Criminal Code, s. 297(2). The relevantparagraph of the Agreed Statement of Facts states: 88. ... The Accused and RA took her home where she was chained to a bed with the use of a dog collar, chains and locks around herneck. RA did up the chains and collar. TM told the Accused that she wanted to be released. She was not released.

She was crying. Sheneeded to go to the bathroom but she was not released. TM disclosed that she was held in this manner for about for what seemed like 5 or6 hours but may have been less. She tried to free herself without success. She cried herself to sleep. This took place around April 18,2009 in Edmonton, Alberta. [108] Notably, the version offered by KDH at trial effectively denies his involvement in the unlawful confinement. He did not lockup TM, that was RA. He did not approve of that kind of restraint. When he became aware that TM was locked up and in distress, heordered RA to release TM.

If that indeed was what had transpired, then there was no reason for KDH to plead guilty to that charge. Theoffense was committed by RA, not him. [109] Third, the manner in which KDH testified was peculiar. This relates to both his manner and the way in which he expressed histestimony. While his manner was smooth, direct, controlled and seemed forthright, his responses, and particularly his narratives, seemedrehearsed.

Most unusual was the manner in which KDH described the various sexual encounters, the testimony seemed less like theaccount of an observer or a participant, than an exercise in pornographic storytelling. KDH stressed dramatic moments: RA “verily flewacross the room.” The trio sensuously touched one another, stroked each other’s hair, fell into a state of bliss. [110] I am conscious that demeanor, while relevant, is a facet of a witness that a judge should examine with caution. Differentpersons may act in very different ways on the witness stand.

On that point, I note that a confident demeanor should not always be a basisfor belief. In Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171 (B.C.C.A.), the court observed: The credibility of interested witness ... cannot be gauged solely by the test of whether the personal demeanour of the particular witnesscarried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities thatsurround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmonywith the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that placeand in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confidentwitnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggerationwith partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true, but he may be quite honestlymistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on considerationof only half the problem. In truth it may easily be self-direction of a dangerous kind. [Emphasis added.] [111] I believe that applies to KDH and his testimony. I strongly believe that KDH has tailored his account of the activities in theBonnie Doon household to minimize his wrongful conduct. He has portrayed RA as the ‘hard line’ mistress, while he was reasonable, ifnot benevolent.

He has provided testimony that contradicts the Agreed Statement of Facts. In each case, KDH’s in-court testimonyunderstated his involvement vs. the Agreed Statement of Facts. [112] The story KDH provided is very strange, both in general form and in its details. He was caught disagreeing with the AgreedStatement of Facts. I therefore conclude that I am not convinced by his evidence that he did not sexually assault TM. I therefore mustcontinue to the second step of the W.(D.) test. [113] The second question is whether KDH’s evidence, in isolation, raises a reasonable doubt even if not believed. It does not.

Thedefects identified above mean some other context is necessary before I can conclude that KHD’s account implies or otherwise indirectlyindicates his innocence. [114] The last step in the W.(D.) analysis is an evaluation of KDH’s testimony in conjunction with that of other witnesses. That

evaluation will make up the remainder of this decision. Anticipating some of what is to come, although KDH’s credibility is poor, someof his narrative does correlate with the testimony of TM and RA. That means that I conclude though KDH’s story is, broadly, verystrange, at least parts of it are indeed true. D. Disreputable “Vetrovec” Witnesses [115] RA is a co-accused in relation to a number of the charges against KDH. She admits her participation in illegal activity, incestand unlawful confinement. The Agreed Statement of Facts indicates her active participation in a broader range of misconduct.

As such,RA is a ‘disreputable witness’ (a “Vetrovec witness”), and her evidence must be evaluated following the procedure in R. v. Vetrovec, (SCC), [1982] 1 S.C.R. 811 at 825, 830-831, 136 D.L.R. (3d) 89 [“Vetrovec”]. [116] In Vetrovec the Supreme Court of Canada concluded that, in light of the danger of finding guilt based on the evidence of aperson of disreputable character, the finder of fact should identify some confirmatory evidence before it relies on the evidence of aVetrovec witness, when that witness provides testimony that is central to the Crown’s case: R. v.

Kehler, 2004 SCC 11 at para 19. [117] Watt J.A. in R. v. Roks, 2011 ONCA 526 at paras 63-66, 281 O.A.C. 235, recently provided a helpful

summary of theapproach to properly apply the Vetrovec approach: Among the essential elements of a Vetrovec caution is an instruction about the essential characteristics of confirmatory evidence. Jurorsare to be told that, in determining the veracity of the suspect evidence, they should look for evidence from another source tending toshow that the untrustworthy witness is telling the truth about the guilt of the accused ...

The trier of fact is to look for confirmation fromsome other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to showthat the accused committed the offence charged (the implicative quality or materiality requirement). ... The independence requirement insists that to be confirmatory, evidence must not be "tainted" by connection to the Vetrovec witness ... To satisfy the materiality requirement, confirmatory evidence need not implicate the accused ...

The materiality requirement is metwhere the confirmatory evidence, in the context of the case as a whole, gives comfort to the trier of fact that the Vetrovec witness can betrusted in his or her assertion that the accused is the person who committed the offence ... Where the only issue in dispute is whether theaccused committed the offence, to be confirmatory, evidence must comfort the trier of fact that the Vetrovec witness is telling the truth inthat regard before convicting on the basis of the Vetrovec witness' evidence ...

It is worth reminder that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatoryevidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth ... [Citationsexcluded, emphasis added.] [118] The confirmatory evidence may be provided by another Vetrovec witness, provided the trier of fact is satisfied with thetruthfulness of that evidence: R. v. Winmill (1999), (ON CA), 131 C.C.C. (3d) 380 at para 120, 116 O.A.C. 201 (Ont.C.A.). E.

Witness Credibility [119] Both Crown witnesses are in certain senses suspect and their testimony has restricted value. 1. TM [120] TM’s testimony is problematic. My concerns are not so much with her credibility as to the reliability of her evidence. First,

there are significant differences between the at-trial and the Zebra statement [Exhibit 10] versions of the ‘ kitchen incident ’ . The clothing in each account was different. At trial TM said she was vocal and expressed her distress and desire that the sexual contact end. That was despite that she had “ blacked out ” and was frozen. In the Zebra statement TM says she was silent.

In one instance RA remained outside the kitchen, in the other RA entered the kitchen and appears to have been a second partner for KDH. [ 121 ] When cross-examined on that point TM said she did not remember that part of her earlier Zebra account, but that TM did know that RA did not have sex with TM during the ‘ kitchen incident ’ . [ 122 ] In the expanded ‘ kitchen incident ’ narrative TM describes the household as watching a movie together, which seems incongruous given the alleged sexual assault that occurred only shortly before and left TM in a state of distress; she fled, crying. [ 123 ] At times, other aspects of TM ’ s account seem to be exaggerations.

At trial she stated she was afraid of KDH and that there were weapons around. She thought she could be killed. However, TM ’ s testimony focuses more on RA as an antagonist. The “ weapons ” were ordinary household objects. Defence counsel noted that the “ punishment ” meted out by KDH and RA seemed more like household chores rather than a cause for fear. [ 124 ] The account of a second but not recorded sexual encounter is incongruous when viewed in context with the ‘ kitchen incident ’ and the alleged fear of violence.

In this incident TM describes being curious and wanting to know the content ’ s of RA ’ s “ box ” , a collection of sex toys. Why would TM even want to be in RA and KDH ’ s bedroom, let alone view RA ’ s sexual paraphernalia, in that context? Pornography viewing and sex follows, though TM says she is not comfortable with that.

I question the reliability of TM ’ s testimony as on the one hand she testifies that she is afraid for her life as she believes KDH may kill her, yet TM stays in a room with him and RA, and out of pure curiosity goes through some sexual objects and views the pornographic collection KDH had accumulated. [ 125 ] TM explains she remained in the Bonnie Doon household partially as she had no alternative, but also because she wanted to protect MA.

TM denies observing MA involved in sexual activities, other than one occasion where KDH touched MA ’ s breasts. [ 126 ] Another concern is TM ’ s changed identification of photograph seven in Exhibit 3. She first identified the individual in the photograph as RA, and subsequently, changed her opinion and identified the individual as herself performing oral sex on KDH. In this respect, TM ’ s failure to identify her own presence in a photograph leads me to be concerned that her testimony is unreliable. [ 127 ] TM ’ s motivation also varies.

In one instance she said she left the household because she feared she would be stabbed. On another occasion, TM testified she left the Bonnie Doon residence after the third sexual encounter because she did not want to engage in sex with RA and KDH, they had taken advantage of her for a final and last time. [ 128 ] Both counsel commented extensively on how TM had difficulty remembering, and that during the alleged assaults she “ blacked out ” , could not see anything. This appears to be the same as the “ shock mode ” mentioned in the Zebra interview.

I did not receive any expert testimony concerning TM ’ s mental capacity or her response to stressful circumstances. I believe I can take some notice, from my personal observation of the witness, that she has limitations to her ability to express and order her ideas. However, I do not have evidence on her ability (or inability) to observe or remember events. I therefore put little weight on TM ’ s description of her sensory and mental states during the alleged assaults. They may be true. They may be a convenient cover.

What I do know is that in many instances TM could not or would not provide details and a full description of what happened in the Bonnie Doon residence. [ 129 ] In conclusion, I view TM ’ s evidence with caution. Her testimony has proven inconsistent. Her narrative, at times, lacks internal consistency and logic. I have some concerns over her credibility. I do not think it implausible that she may have omitted certain facts that make her more a willing participant than a victim. That said, I do believe TM feels she was treated wrongly by RA and KDH.

Whether that extends to sexual misconduct is a more difficult assessment. My chief concern, as noted, is that TM may not be reliable, her versions of events are inconsistent and illogical. By her own account, her memory can be fragmentary, and needs at times to be ‘ cued ’ . That the manner in which the Crown extracted testimony from TM provided a very vivid illustration of that process and its apparent necessity. 2. RA

[130] RA was a very problematic witness. As a Vetrovec witness of disreputable character her evidence requires confirmation to beconsidered credible. RA’s manner during her testimony strongly implied that RA was extremely hesitant to state what she knew. Longperiods of silence would precede many answers. In many instances a question was only answered when repeated. Her speech was at anextremely low volume. RA contradicted herself.

When asked to explain simple things, such as why she considered the “kitchen incident”a “rape”, RA provided only vague, unsatisfactory responses. [131] That vague response is even more unsatisfactory when coupled with RA’s testimony that after the alleged assault TM actedmore like a girlfriend of KDH, rather than a victim of unwanted sexual advances, an “attack”. [132] I am left with the powerful impression that when RA said she did not remember or made contradictory statements that sheknows and recalls far more than she provided on the witness stand. [133] I cannot effectively evaluate why RA refused to provide more detail or explanation.

Crown counsel advised the Court thatCrown counsel had advised RA of her rights under s. 5(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, prior to RA providing anytestimony in these proceedings. Despite this, RA’s reluctance continued even after her counsel had advised her as to her legal rightsregarding any testimony she may give during these proceedings. I can therefore only speculate that her reluctance stems from the factthat she may have nevertheless believed she would benefit from minimizing her explanations and narratives.

RA may be embarrassedand unwilling to elaborate on her activities, which obviously involve powerful social taboos. Last, her comparative silence may be anexpression of loyalty to KDH. One of the aspects of her testimony that seemed true was her explanation of the degree of control KDHhad over RA and the household. I do not find RA’s explanation farfetched that KDH required RA to totally comply with his demands. [134] I therefore put little weight on RA’s evidence; she is an unreliable witness.

I believe the majority of her narrative is ahalf-truth, and that she attempted to minimize her role in the sexual misconduct that occurred in her household. Nonetheless, RA’stestimony is potentially valuable where corroborated by another witness, or where she acknowledges her own misconduct. IV. Analysis [135] KDH may be convicted of sexual assault only if the Crown proves its case beyond a reasonable doubt: R. v. Starr, 2000 SCC40 at para 100, [2000] 2 S.C.R. 144. A reasonable doubt was defined in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 atparas. 30-31, 39, 150 D.L.R. (4th) 733.

It cannot be based on sympathy or prejudice, nor have an imaginary or frivolous basis. Areasonable doubt must be based on reason and common sense, and on the evidence or absence of evidence. What is not required is thatthe Crown prove its case to a standard of absolute certainty. A. Sexual Assault [136] The leading case on the meaning of sexual assault, Criminal Code, s. 271, is R. v. Ewanchuk, (SCC),[1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193. At paras. 23-30 Justice Major outlines the key elements of the offense: 1.

The prohibited conduct (the actus reus) is unwanted sexual touching (para. 23) which has three necessary facets: a. touching (para. 25), b. that is objectively sexual in character (para. 25), and c. the touching occurs in the absence of consent, a subjective internal state of mind (paras. 25-26).

2. The guilty mental state is that the accused intended to touch, and either knew, was reckless of, or willfully blind to an absence of consent (para. 23). [ 137 ] R. v. Ewanchuk indicates that a passive, silent, or ambiguous response to a sexual scenario provides no defence: para. 51. Any sexual touching after an express refusal or instruction to stop is a sexual assault: para. 51. [ 138 ] Certain aspects of consent to sexual activity are defined in the Criminal Code , s. 273.1: 273.1(2). No consent is obtained, for the purposes of sections 271 , 272 and 273, where: (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [ 139 ] Proof of an absence of consent is a question of credibility. If the court hears and accepts evidence from the complainant that the complainant did not consent to sexual touching, then the Crown has discharged its obligations to prove the absence of consent: R. v. Ewanchuk , at paras. 29-30 . The accused ’ s perception of this aspect of a sexual assault charge is irrelevant.

However, the accused ’ s personal assessment of the complainant ’ s conduct is relevant if the defence advances an argument of honest but mistaken belief in consent. [ 140 ] Justice Major concludes at paras. 61-66 with a procedure to evaluate an alleged sexual assault: 1. if the complainant alleges he or she did not consent, then the credibility of that claim is evaluated in light of the entire evidence including ambiguous or contradictory evidence by the complainant (para. 61); 2. if the absence of consent is proven beyond a reasonable doubt then the analysis evaluates an honest but mistaken belief in consent (para. 61); 3. if there is reasonable doubt as to consent or the court concludes that sexual activity was voluntary, the court evaluates whether the sexual activity was coerced (para. 62); 4. an honest but mistaken belief in consent is a defence to a charge of sexual assault, and requires whether any evidence supports that proposition, and a belief that is not reckless, willfully blind, or tainted by factors identified in Criminal Code , ss. 273.1(2) and 273.2

(paras. 63-65). B. Facts Not In Dispute or Established by Witness Testimony [ 141 ] In many ways the accounts provided by TM, RA, and KDH support a consistent history that is compatible with the Agreed Statement of Facts. I conclude the following facts are proven beyond a reasonable doubt: 1.

TM in 2009 became a part of a household with MA, RA, and KDH; they lived in a residence in the Bonnie Doon area of Edmonton; 2. sexual activity occurred between TM, RA, and KDH; 3. at least two sexual events occurred between TM, RA, and KDH: one in the kitchen of the Bonnie Doon residence, and at least one more that occurred in the bedroom of that apartment which was shared by RA and KDH; 4. a video recording was made of sexual activity between TM, RA, and KDH in the RA and KDH bedroom; 5. persons in the household engaged in a fetishist lifestyle, and more specifically KDH was a “ dominant master ” who engaged in a certain degree of control over the other “ slaves ” resident at that location. [ 142 ] These findings mean that, in a W.(D.) context, certain unlikely aspects of KDH ’ s testimony have been proven true via corroboration from TM and RA.

There was indeed incestuous sexual contact between a young woman and her all but unfamiliar birth mother, RA. Further, KDH participated in these activities. [ 143 ] I therefore conclude that the Crown has proven that sexual touching did take place between KDH and TM. KDH testified that it was his intent to engage in sexual touching with TM. That leaves three issues: 1. did TM consent to that touching, 2. was TM ’ s assent coerced, and 3. if TM did not consent or was coerced, did KDH have an honest but mistaken belief that consent had been granted? C.

Was the Sexual Contact Consensual? [ 144 ] TM says that she never consented to sexual touching by KDH. KDH describes TM as being not only willing but an eager sexual partner. RA says she saw a “ rape ” , but that led to TM and KDH acting like boyfriend and girlfriend. [ 145 ] My first question is whether the Crown has met its onus of proving, beyond a reasonable doubt, that TM did not consent to sexual touching by KDH. TM ’ s evidence makes evaluating this question difficult. I have previously commented on my concern with the credibility and reliability of this witness.

[ 146 ] Directly on the point of consent, in Court TM testified that she expressly and verbally rejected KDH ’ s advances during the ‘ kitchen incident ’ . In the Zebra interview TM says she said nothing. TM says she said “ no ” in the non-recorded bedroom threesome. The Zebra interview does not seem to provide any comment on that point. [ 147 ] I am particularly concerned by the manner in which TM ’ s memories appear to need to be ‘ cued ’ before they were described to the Court. Details emerged irregularly, and as previo

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