R v GDP, 2014 ABQB 643

Court of Queen ’ s Bench of Alberta Citation: R v GDP, 2014 ABQB 643 Date: 20141023 Docket: 110414760Q3 Registry: Calgary Between: Her Majesty The Queen Crown - and - GDP 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 By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No one may publish the name or photograph of a child, or of the child's parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. 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 i dentifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________

Reasons for Judgment of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The accused, GDP, stands charged that, being a person in position of trust or authority towards or in a relationship of dependency with RB, CS, JP, DJ, and MM, did for a sexual purpose unlawfully touch directly or indirectly with a part of the body or with an object, a part of the body of those five named individuals, contrary to s.153(1) (

a) of the Criminal Code of Canada . There are five charges, one in relation to each of the complainants listed above. A sixth charge was brought alleging such an offense in response of JH, but JH did not appear to give evidence and the Crown withdrew that charge. I. The Facts [ 2 ] Following is the

summary of the evidence of each of the complainants. A. CS’ Evidence [ 3 ] CS was born in 1987 and was 26 years of age at the time that he gave evidence. He indicated that the accused had been his foster father for six years or so.

He had initially moved in with the accused and the accused’s wife, JP (“JP”), when he was 14 years of age. [ 4 ] CS admitted to a criminal record consisting of theft under $5,000 in 2002; possession of a weapon and theft under $5,000 in 2004; and mischief, failure to appear, and failure to attend court in 2006. [ 5 ] CS indicated that he resided with the accused and JP as a foster child from the time he was 14 years of age until he turned 18.

When a foster child turns 18, the government takes steps to place that foster child into an independent living program. [ 6 ] CS noted that there were four to five foster children living in the P home at any given time and they were always teenage boys. [ 7 ] CS noted that the rules in the P home were “pretty slack”. He had to go to school and he had to be home for dinner after school. He had one chore day per week. He said it was a great foster home in comparison to other foster homes he had been in.

He was allowed to smoke and was given more freedom than was normally the case in his experience. [ 8 ] CS said that the first sexual references that he could recall at the P home were jokes made by Mr. GDP about the boys’ genitalia. However, CS indicated that, as time progressed, Mr. GDP would fondle him and grab his penis. At first, he would grab CS’ penis over top of his clothing. This would happen in private, beyond the view of others. He said he had been at the P residence for a few months when the grabbing began. CS also said he saw Mr. GDP grab DJ, one of the other complainants, in this way.

As time progressed things became more sexual, with Mr. GDP performing oral sex upon CS. CS does not remember the first time it happened; however he said that it started probably three or four months after he moved in. It would happen about once a week, mainly in Mr. GDP’s bedroom on the main floor and mainly in the mornings when JP was at work. These incidents typically started with groping then Mr. GDP directed CS: “go into my room and take your clothes off”. While CS thought this was weird, he never resisted. Mr.

GDP would then come into the room and rub CS’ chest, take CS’ pants off if they were not already removed, and perform oral sex on CS (referred to throughout the trial as a “blow job”), with Mr. GDP’s mouth enveloping CS’ penis and moving up and down on it until CS ejaculated in Mr. GDP’s mouth. CS indicated that each incident ended with ejaculation. [ 9 ] After the event, Mr. GDP would give CS money, usually $20. [ 10 ] CS was never asked to give a blow job to Mr. GDP and he never did so. There was no sexual intercourse between them, although Mr.

GDP had made references to having CS perform anal sex on him in the future. [ 11 ] CS indicated that, while these events usually occurred in Mr. GDP’s bedroom, this was not always the case. He described one incident where Mr. GDP was “going down” on him in the kitchen when JP came towards the entrance of the kitchen, whereupon Mr. GDP stopped performing the oral sex. Mr. GDP then told CS that if JP asked what was happening, CS should tell her that he had a “bump on his balls” and that Mr. GDP was checking it out.

In fact, CS said that JP asked him a few days later what had happened, and he gave the excuse suggested by Mr. GDP. [ 12 ] In addition, CS gave evidence that he saw DJ receiving oral sex from Mr. GDP on Mr. GDP’s bed, and does not believe either DJ or Mr. GDP knew that CS observed them. [ 13 ] CS also described the “Guys’ Nights”, indicating that he went on a few. Mr. GDP would take some of the older brothers to a different town. He would put them up in a hotel, buy drinks, buy dinner, and buy clothes for them. During the course of these Guys’ Nights, Mr.

GDP would give CS a blow job, and then would give him money. It was CS’ understanding that this would happen with the other boys on Guys’ Nights. However, he gave no direct evidence of observing such.

[ 14 ] CS indicated that these Guys’ Nights involved the older boys, most of whom were over 18 years of age. He could not recall with conviction whether he had attended Guys’ Nights before he was the age of 18. [ 15 ] CS acknowledged that he has struggled with drugs, describing himself as a crack addict for five or six years, starting approximately eight months after arriving at the P house. He smoked marijuana daily and also took ecstasy. He said that he mainly paid for the drugs with money earned by allowing Mr.

GDP to perform oral sex on him. [ 16 ] Some years later, CS learned that the P foster home had been closed down and allegations were being made about sexual abuse by Mr. GDP. Mr. GDP came out to British Columbia to visit CS. Mr. GDP indicated that he had to “get away” because one of the brothers had come forward with complaints. CS indicated that Mr. GDP asked for pictures of CS’ penis, which CS provided in return for money. In fact, CS said he sent a picture of his penis to Mr. GDP, and another copy of that picture to his girlfriend.

CS sent these pictures well after he reached the age of 18. [ 17 ] CS complained to the local RCMP “after I saw it all in the news”. He maintained that he did so because “the abuse had to stop”. [ 18 ] CS advised that he had been in contact with a lawyer in Edmonton to bring a civil lawsuit against Mr. GDP and the government of Alberta, seeking damages for sexual abuse. He knew that DJ was also involved with this lawyer. CS also gave MM the contact information for the lawyer. [ 19 ] CS has lived with MM since February 2013.

However, he maintained that he has not discussed anything with him other than what had happened at Guys’ Nights. He maintained that he had no conversations with DJ, JP, RB, or JH as to what had happened between himself and Mr. GDP, or what had happened between any of them and Mr. GDP. [ 20 ] In cross-examination, CS acknowledged that it was a very busy time every morning at the P home, with the boys getting up, having showers, having breakfast, and getting ready to go to school, such that there was very little time for anything else.

This raises questions as to how these occurrences could have taken place during such a hectic morning schedule, without anyone noticing. CS indicated that while these blow jobs mainly took place in the morning, they also happened at other times during the day, particularly when JP was not there. They happened whenever there was no one around or whenever Mr. GDP had a chance. [ 21 ] This evidence did not coincide with what CS he had said in his interview of March 7 th , 2011, where he had said that the incidents of oral sex had always taken place in the morning.

When asked whether he was lying on that statement, he said “I guess that’s a lie. I remember it happened periodically through the day”. [ 22 ] CS acknowledged that, during the period of time he lived in the P residence, he was a thief. He also acknowledged that he repeatedly got kicked out of every school he attended, two or three times a year. He acknowledged that he had never brought up any of these sexual abuse allegations with JP or with police until he made his statement in British Columbia. [ 23 ] CS was cross-examined on the details about some occurrences, such as the Guys’ Nights.

Defence counsel pointed out the inconsistencies in his evidence and in his statements. [ 24 ] CS indicated he could not remember whether the blow job given by Mr. GDP to DJ occurred in the morning, noon, or night. Furthermore, in direct examination, he maintained that he did not know if DJ had seen him or not. However, two days previously he had told Detective Plummer that DJ saw him.

In cross-examination, he said he did not know 100% if DJ saw him. [ 25 ] In cross-examination, CS indicated that the reason he went to see the police in British Columbia was because the civil lawyer had told him that, prior to bringing an action, he had to give a statement to the police. [ 26 ] In redirect, CS indicated that he did not feel that he had been lying to Detective Wagner in his statement, but gave him the best of his knowledge at that time. He did not intentionally mislead Detective Wagner. B. MM’s Evidence [ 27 ] MM was born in 1988. He has no criminal record.

He was in the psychiatric ward of the Children’s Hospital before he was transferred to the P foster home on September 1 st , 2003. At that time he was 14; it was 17 days before his 15 th birthday. At that time, CS and JH were also residing in the P home as foster children, together with another foster child whom MM could not recollect. [ 28 ] MM indicated he really liked living at the P residence and that it was a great place. He loved JP, who he described as “one of the best parents” he ever had.

He also stated: “I loved Garry, he treated us great”. [ 29 ] MM lived at the P home for just over three years, moving out just after he turned 18. He confirmed that all of the foster children at the house were boys aged 14 through 17. [ 30 ] MM indicated that everybody made jokes—“dirty jokes” or “sexual jokes”— with the brothers picking on each other. Mr. GDP was involved in this joking. [ 31 ] MM gave evidence that, on the first Christmas Eve after he moved in to the P home, there had been a lot of drinking. MM said that he was almost completely drunk, close to blacking out.

The older brothers had left the home and JP was in bed. Mr. GDP started poking and touching MM’s penis over top of his clothing and said to MM: “let’s see it” and “put it out there”. MM does not recall what he said but he did take his penis out. MM agreed to let Mr. GDP give him a hand job for $50. Mr. GDP stroked MM’s penis with his hand. Mr. GDP was wearing a nightie, lifted it up, and inserted his penis into MM’s mouth. MM said that he then blacked out and has no further memory. Later, he recalled waking up on the downstairs couch and he had $80 in his pocket that was not there before.

[ 32 ] MM said that “it never went that far again”. It continued with hand jobs and blow jobs, but Mr. GDP never put his penis in MM’s mouth again. [ 33 ] Instead, Mr. GDP would put MM’s penis into Mr. GDP’s mouth. MM said it became very frequent, perhaps a couple times a week to 11 to 15 times a month. He said it was close to every other day. It mostly occurred in Mr. GDP’s bedroom or in the living room, but a couple times it occurred in Mr. GDP’s van. Each time it happened, Mr. GDP would pay MM. MM indicated that Mr.

GDP would sometimes masturbate during these hand jobs or blow jobs, though not on every occasion. [ 34 ] When Mr. GDP was giving MM a hand job or a blow job, MM would sometimes ejaculate, sometimes not. If MM ejaculated during a blow job, he did it in Mr. GDP’s mouth. [ 35 ] Mr. GDP would provide payment in return for performing these sexual acts, usually as soon as it was finished, with the payment being $10 to $50, depending on what he was asking for. [ 36 ] With respect to the occurrences in the van, MM said that Mr.

GDP would drive around while giving MM a hand job or he would park in the back alley to give MM a blow job. These occurrences only happened in the van a few times. [ 37 ] MM described the Guys Nights, saying that he heard of them when he was 16, but that he did not go until he was 18. Mr. GDP would take the older brothers with him, one or two at a time. [ 38 ] MM went on a Guys’ Night when he was 18, accompanied by Mr. GDP and CS. They went out to a wine bistro for dinner and drank Caesars and vodka in their hotel room. [ 39 ] MM said that Mr.

GDP tried to give simultaneous blow jobs to him and CS, but MM was not comfortable with CS being there and thus was not able to maintain an erection. MM said he went upstairs and watched television until CS and Mr. GDP were done. Then Mr. GDP came upstairs and gave MM a hand job or a blow job while he masturbated himself. The boys then went out to different clubs, while Mr. GDP stayed behind. [ 40 ] MM said that he and CS never discussed what happened that night in the bedroom. [ 41 ] In terms of drugs and alcohol, MM indicated he was a “full blown alcoholic” by the age of 16.

He was drinking until he blacked out or almost blacked out, with as much as a 12 pack of beer consumed in an evening. He also started smoking marijuana. He said he was considered to be a zombie because he was always stoned. [ 42 ] When MM was asked why he did not go to see a social worker, the police, or someone in authority about this matter, he responded that he did not know. He noted that he liked the foster home and he was happy to get paid.

In fact, when some of his brothers raised a complaint about happenings in the house, MM indicated that he was angry at them, as he loved the house and was of the view that the house was a great place. When MM first gave a statement to the police, he denied that any of these sexual activities were being carried on in the P house. However, he said he later had a mental breakdown and he tried to kill himself.

He moved to British Columbia on February 7 th , 2013 and has since lived with CS. [ 43 ] MM acknowledged that he had been in touch with a number of the complainants and foster brothers since leaving the P home and since the allegations against Mr. GDP came to light.

However, MM denies discussing any details of what occurred at the P house with any of them. [ 44 ] In cross-examination, MM confirmed that the mornings at the P residence were busy, with the boys getting up around 7 am, getting dressed, having showers (some of them), having breakfast (if they wanted it), and leaving to catch the bus. [ 45 ] Dealing with the Christmas Eve incident, MM was cross-examined with respect to a statement he gave to Corporal Pasloske on May 25 th , 2010.

In this statement, he said that one of the foster children, IM (not a complainant in this case), was sleeping downstairs at the time this incident occurred. At trial, MM indicated that that might be correct, though he was not sure, since it was a decade ago. It was suggested to MM that IM did not move into the P residence until March 24 th , 2005. MM indicated that he did not remember exactly when IM moved in, but that it was possibly March 2005. [ 46 ] MM’s truthfulness was questioned.

Defence counsel suggested that, in his statement to the police, he had indicated that the occurrences were always in the bedroom. However, as MM pointed out, later in his statement MM had indicated that it also happened in the living room and in the van. [ 47 ] MM indicated that even after he had left the residence, he kept in regular contact with the Ps. He indicated in his statement that, well after the events in question, he had spoken with JP about these matters.

Yet he moved back in with the Ps for two months, after having told JP about what had occurred. [ 48 ] Defence counsel pointed out that, in his first statement to the police on January 19 th , 2010, MM had denied that any sexual contact or abuse had taken place at the P household.

MM indicated in response that he was very fond of the Ps and he was lying in that statement in an effort to make it sound that everything in the P household was good. [ 49 ] On the subject of his use of drugs, MM acknowledged that, in addition to the marijuana as referenced in his direct evidence, he had used cocaine since the age of 16 or 17, and crack cocaine after he was 18 years of age. He acknowledged that he was continuing to do a lot of drinking even at the time of trial, and that he was hung over at the time he was giving his evidence.

He acknowledged that he had found out about the civil litigation lawyer in Edmonton through discussions with CS, and that he was interested in pursuing that litigation as well to get his share of the money, relax, and “get my ticket”. I take him to mean his license as a tradesman. He indicated that he indeed contacted the lawyer, but has not been contacted by the lawyer in return.

C. RO’s Evidence [ 50 ] RO gave evidence even though he was not a named complainant. He was born in 1991. He moved in to the P residence as a foster child when he was 15 years old. [ 51 ] RO acknowledged having a criminal record.

In 2007, he was convicted of robbery and failure to comply with a recognizance in Youth Justice Court; in 2009, obstruction and assault of a police officer, theft under $5,000, failure to comply with a recognizance, failure to comply with conditions of undertaking, and assault; in 2010, failure to comply with a recognizance and possession of property obtained by crime under $5,000; and in 2011, failure to comply with disposition under s.137 of the Youth Criminal Justice Act . [ 52 ] RO had previously been in another foster home, and he said that he liked the P residence: it was one of his favorites and it did not feel like a foster home.

The rules were “pretty slack”; they consisted of being home for dinner at 5:30 p.m., and attending school. During the period that he resided in the P residence, some of the other foster children in the house were JP, RB, IM, and (he thinks) JH. CS did not live there while RO was there, however, CS would come by two or three times a week, and was therefore well known to RO. [ 53 ] RO said that when CS was at the P residence, Mr. GDP occasionally made comments about CS’ penis, talking about how large it was. Mr. GDP referred to CS as “elephant dick”. [ 54 ] RO said there was not anything sexual between him and Mr.

GDP. Mr. GDP would grab his nipples and would try to pinch him, but RO would tell Mr. GDP to “fuck off”. [ 55 ] On one occasion, RO was in his bedroom in the basement, a bedroom which he shared with RB. At 11:05 or so, he heard RB upstairs and he could tell that RB was drunk, as RB had a habit of being obnoxious and loud when he was drunk. [ 56 ] Then he said that there was silence for about half a minute. RO opened the bedroom door and “looked and saw Garry sucking RB’s penis”. The two of them were at the bottom of the stairs, about 25 feet away from RO. RO said they did not see him.

RB was standing with one arm on the wall and the other on the other wall. Mr. GDP was kneeling. RB was facing RO and Mr. GDP was facing away from RO. When asked how could he tell what was occurring, RO indicated “I know what it looks like”. He could see Mr. GDP’s head going back and forth at the location of RB’s penis. He could see RB looking down at this. He said he watched them for five seconds. He was in shock at the sight, closed the door, and went back to his bed. [ 57 ] A few seconds later, he said RB came violently through the door. RB was drunk. He jumped on RO’s bed and started to play fight.

He told RO that Mr. GDP “tried to touch him”, but that he had responded by telling Mr. GDP to had “fuck off”. However, RO said that he knew what he had seen and that RB’s version was made up. He did not challenge RB on his version at the time because RB was intimidating when drunk. [ 58 ] RO also said that JH would always go upstairs and come back downstairs with $20, $30, or $40 in hand. He would then suggest that the roommates get drunk. When asked where he got the money JH would reply: “never mind that”. However, RO was not able to say if Mr. GDP was even home during those events.

Later on, however, he said that he asked JH from where that money had come, and JH indicated that Mr. GDP had given it to him in return for Mr. GDP performing oral sex on JH. [ 59 ] JH did not give any evidence on this matter and the charges involving sexual abuse against JH have been stayed. The evidence of the discussion between JH and RO as to what happened to JH are hearsay only and are not accepted by the court for the truth of its contents. [ 60 ] RO gave evidence of a discussion he had with JP wherein JP said he had blackmailed Mr. GDP.

Again, however, this is pure hearsay coming from RO, and it is not accepted for the truth of its contents. [ 61 ] RO said that CS never advised him of anything sexual going on between CS and Mr. GDP.

He said that MM told him “stuff had gone on between MM and Garry”, but nothing more. [ 62 ] RO indicated in direct testimony that he did not wish to be giving evidence, that he did not wish to be involved in the court process, that he disliked being in court, and that he disliked the police. [ 63 ] In cross-examination, RO admitted that he had been heavily using cocaine, essentially on a daily basis, while he lived at the P residence. He mentioned that he would usually use it after dinner, either in the basement of the P residence or outside of the home.

He said that all of the foster brothers were fairly regularly using cocaine during this period of time. [ 64 ] In the statement that RO gave to Detective Witt, he said that the two years at the P residence were “pretty much a blur”. He was drinking alcohol daily, he was using cocaine daily, and used ecstasy “every once in a while”. He indicated that there were a lot of nights where he would black out. [ 65 ] RO denies that he was drunk or high on the night when he observed oral sex being given by Mr. GDP to RB.

However, in his police interview, he had indicated that he was still drinking and taking drugs every day, and that at the time of the interview he had only had three days of sleep in two weeks. [ 66 ] RO acknowledged that he knew that some kids were stealing from Mr. GDP. RO indicated that he would lie to Mr. GDP and JP about this to protect his foster brothers, and that he would stick up for his foster brothers. [ 67 ] RO indicated that only former foster children over the age of 18 went on Guys’ Nights. [ 68 ] RO indicated that he had been told of the lawsuit against Mr. GDP by JH.

There is no indication, however, that RO became involved in any such litigation.

D. JP’s Evidence [ 69 ] JP was born in 1990 and said he was 15 or 16 when he moved in to the P residence as a foster child. JP has a criminal record. In 2007 he was convicted of breaking and entering, theft under $5,000, failure to appear, obstruction, failure to attend Court, and failure to comply with a recognizance, all in Youth Justice Court. In 2009 he was convicted of mischief.

At the time of this trial, he was facing two charges of uttering threats, one charge of motor vehicle theft, and one charge of possession of a weapon for a dangerous purpose, all of which were outstanding. [ 70 ] JP said that MM, IM, and perhaps RB’s brother were residing as foster children at the P residence when he moved in. [ 71 ] JP admitted to “doing coke”, “smoking weed”, and drinking a lot while living with the Ps. He said he did so as often as he could; if not every day, it would be every other day. [ 72 ] JP gave evidence of the unusual dialogue at the P household. He said that Mr.

GDP, CS, and two other foster brothers (who are not complainants in this case) would talk about penises, telling each other such things like to “put it on the table”. He said that that was a saying they had, and that it was repeated on many occasions. JP indicated that he took

part in these conversations. [ 73 ] JP indicated that initially Mr. GDP made comments towards him. For example, if Mr. GDP caught JP coming out of the shower without a towel he would say things like “nice ass” and “looking good”. JP said that he would not respond to these types of comments. [ 74 ] JP testified to an incident where he was in the kitchen and asked Mr. GDP for some money. Mr. GDP asked what JP would do in exchange for the money. JP said that Mr. GDP asked him to take out his penis and to “put it on the table”. JP said that he complied and took his penis out, and that Mr.

GDP touched him on his penis. He said that Mr. GDP put his hands in JP’s pants. [ 75 ] JP recited an incident at the Deerfoot Mall where he needed a winter coat. He said Mr. GDP took him to the mall and made a “big deal” about getting the coat. Once they got the coat and were back in the van, Mr. GDP asked JP: “what are you going to do for me? Pull it out and let’s see it”. He said Mr. GDP rubbed JP’s leg, undid JP’s belt, and stroked JP’s penis with his hand. JP said that he told Mr. GDP that those efforts were pointless and would not make him ejaculate, and that he found it to be gross. Then, he said that Mr.

GDP started sucking on his penis. He remembers that the van was not in park and it started to move on to a median. Mr. GDP had to return the van to the parking spot before he continued to perform the oral sex. JP said that he did not ejaculate. Mr. GDP gave him money and dropped him off at his home. JP said that Mr. GDP “usually gave me $50 to $60” after these incidents. He indicated that this was the norm. They would go on a drive in the van, park somewhere where nobody would see them, then Mr. GDP would start with a hand job, then a blow job.

In return, JP got money. [ 76 ] On most occasions JP would ejaculate in Mr. GDP’s mouth and Mr. GDP would swallow it. JP said that he never performed any sexual act upon Mr. GDP. [ 77 ] JP indicated that he moved out twice from the P home. He moved out the first time because he had been kicked out of school. He moved back into the P home after a couple of months, and next moved out at the age of 18. [ 78 ] JP indicated that he was going through Mr. GDP’s cell phone and saw a naked picture of CS. JP indicated that he also sent Mr.

GDP photos of his penis for money. [ 79 ] JP said that he did not go on any Guys’ Nights, although he knew that they took place. He was invited, and initially wanted to go, but JP was told by one of the other foster brothers (who is not a complainant in these proceedings) what would occur on those nights, and therefore JP decided he did not want to go. [ 80 ] JP indicated that Mr. GDP always said that CS was his favourite and that CS had “such a big dick”. [ 81 ] JP indicated that he needed money because he was a drug addict, and used the money to pay for drugs.

He said that these occurrences in P’s van took place pretty frequently – approximately twice a week – and he would be paid $50 to $100 per event. [ 82 ] JP indicated that he liked Mr. GDP. Nevertheless, JP said that he blackmailed Mr. GDP by indicating that he would tell the police unless he got $1,000. He said he got $800 or $900 from Mr. GDP from that threat. JP indicated that he told RB about his blackmailing of Mr. GDP. In response, RB said he did “something to me too”, but did not say what. RB indicated that he was going to try to similarly get money from Mr.

GDP. [ 83 ] JP indicated that he was not involved in the civil law suit against Mr. GDP. He has been told that he can bring a claim, but he has done nothing to this point in time. [ 84 ] JP wishes that he had never been involved in the legal process, maintaining that his “life has gone to shit” ever since he came forward. [ 85 ] In cross-examination, JP indicated that he moved in to the P household when he was 15 or just turned 16, which would be in late 2006.

He said that at that time only he, MM, IM, and RB’s brother resided in the house. [ 86 ] JP indicated that during his first day at the P residence, nothing happened that caused him any concern and he was pleased to be returned to the P residence for the second time. He believes he returned in the latter part of 2007, then moved out at age 18 in October 2008. [ 87 ] In terms of the discussions about penis size and so on, JP agreed that it was a joke amongst the boys and it was commonly spoken about. He confirmed that he heard Mr.

GDP join in these conversations saying such things as “throw it out there” and “put it on

the table”. However the boys, including JP, thought he was joking. [ 88 ] In cross-examination, JP admitted to heavy drug use while he was at the P residence, spending up to $700 a week on cocaine. He maintained that most of his money came from Mr. GDP in return for the sexual acts referred to above. However, he also acknowledged that he was in a street gang, that he would commit crimes, that he would steal cars, and that he would steal things out of cars. [ 89 ] JP had indicated in direct testimony that his first sexual event with Mr. GDP occurred in the kitchen of the P residence.

However, in his statement to Detectives Witt and Wagner on December 27 th , 2009, he said that the first time anything happened, beyond just talking about sex, was the incident at the Deerfoot Mall. Further on in that statement, JP had indicated that Mr. GDP never did anything to him at the house. [ 90 ] Further, in cross-examination, JP indicated that after the first Deerfoot Mall incident, P dropped him off at his Sunridge home. JP gave evidence that he did not move into his Sunridge home until he was over the age of 18.

It clearly follows that JP was not a minor at the time of the described incident. [ 91 ] In cross-examination, JP acknowledged that in 2009 he considered starting a law suit against social services. He indicated he wants to sue social services because he feels that they placed him in an unsafe home. He denied discussing this with the other foster brothers. E. RB’s Evidence [ 92 ] RB was born in 1989. He moved into the P home in June 2007 at the age of 17.

He moved out a month after his 18 th birthday, in November or December of 2007. [ 93 ] RB admitted to a criminal record which included assault and failure to comply with a recognizance in Youth Justice Court in March 2005; mischief, breaking and entering, and theft in Youth Justice Court in 2005; carrying a concealed weapon and failure to comply with a recognizance in 2008; failure to comply with a recognizance in 2010; aggravated assault and assault in 2010; a violation of statutory release in 2012; another violation of statutory release in 2013; possession of an illegal substance in 2013; and aggravated assault and assault of a police officer in 2014.

At the time of giving evidence, RB was serving a 31 month jail sentence. [ 94 ] RB indicated that the rules of the P residence were “pretty slack”, and so he partied and drank a lot. He thought that JP was a good person and treated the boys with respect. He said that Mr. GDP, for the most part, was “good”. [ 95 ] RB said that Mr. GDP would occasionally make unusual off colour comments like “I want to suck your dick”. He said that Mr. GDP made those comments to him and JH. However, RB would respond by simply telling him to “get fucking real, man”. [ 96 ] RB said he also heard Mr. GDP make comments to JH.

He would call JH his “little bitch”. RB said that Mr. GDP was not angry during those conversations; he acted lightheartedly— as if he was flirting. JP was not around during those comments. [ 97 ] RB said that the first sexual event between him and Mr. GDP occurred when RB was intoxicated. He said that Mr. GDP offered him $100 to suck RB’s penis. RB said he went downstairs and Mr. GDP followed him. He said Mr. GDP pulled down RB’s pants and sucked his penis. [ 98 ] RB said he was intoxicated with liquor, marijuana, and cocaine at the time. He said $100 was a lot of money to him. [ 99 ] RB said that Mr.

GDP was wearing shorts and a coloured polo shirt on this occasion. He said that Mr. GDP performed oral sex on him for about half a minute or so and RB did not resist. During that time, Mr. GDP pulled his own penis out and started playing with himself. This all occurred a few feet from the bottom of the stairs in the basement of the home. He said that his bedroom, which he shared with RO, was 10 to 15 feet away. RB said he pushed Mr. GDP away, zipped his pants back up, and walked away. [ 100 ] RB said he then went to his bedroom. He does not think that RO was there.

He said that he is 100% sure that this happened before his 18 th birthday, and said that it was approximately one month into his residence at the P home. [ 101 ] RB goes on to say that on another night, he came home drunk and was getting food from the fridge in the kitchen of the P residence when Mr. GDP indicated that he again wanted to perform oral sex, and Mr. GDP pulled RB’s penis out of his pants. This happened a week or two after the first occasion. RB let Mr.

GDP hold his penis for a second or two then turned away and laughed it off. [ 102 ] On either that same night or on a different occasion, RB said that Mr. GDP asked him to take a picture of his penis and provide it to Mr. GDP. RB declined. [ 103 ] RB said that both occasions described occurred when he was 17 years of age. [ 104 ] RB did not tell JP or anyone else about these incidents because he was embarrassed, ashamed, and he did not want people to know about it. [ 105 ] RB described an incident on Labour Day at the P residence when Mr.

GDP and the other foster boys were watching a football game on television in the living room upstairs. CS was there. CS was over 18 years old at that time. Mr. GDP grabbed CS’ penis. CS was laughing about it. RB thought that this was weird but brushed it off. [ 106 ] RB indicated that he eventually told his ex-probation officer about these incidents, who told him to tell Social Services Calgary. He told Social Services, and they took steps to shut down the foster home.

[ 107 ] RB indicated that he did not speak to any of his other foster brothers about the incidents since he was embarrassed about them. [ 108 ] In cross-examination, RB indicated that he did not observe any sexual advances (other than verbal) by Mr. GDP towards any of the other foster children. [ 109 ] RB admitted to being very violent, particularly when he got drunk, and he was drunk when most of his trouble with the law occurred. Yet there was no violence exhibited by him towards Mr. GDP with regards to these sexual advances. In cross-examination, RB said that he did not react violently towards Mr.

GDP because Mr. GDP’s actions did not anger him, but they did, eventually, embarrass him [ 110 ] RB gave a statement to the New Westminster Police Services on November 21 st , 2009. Various portions of those statements were put to him in cross-examination, where some details of the incidents were expressed differently than they were at trial. For instance, on cross-examination, defence counsel pointed out that RB’s testimony regarding the Labour Day football incident differed from the preliminary inquiry to the trial. In the preliminary inquiry, RB stated that he saw Mr. GDP grab CS’ penis over top of CS’ pants.

In direct examination, he stated that it was inside CS’ pants. [ 111 ] In cross-examination, it was suggested to RB that he did not come forward with the complaint until he was informed that Mr. GDP might be telling the police that RB was involved in some robberies. Within days of finding out this information, RB went to his ex- probation officer with his allegations. Counsel suggested that he did so to deflect potential police interest in him as a robbery suspect. [ 112 ] It was further suggested to RB that he had discussed his evidence and these allegations with a variety of his former foster brothers.

He acknowledged that he had discussed the case with some of his former foster brothers, but denied discussing the specifics of what happened to him and to others. He acknowledged that he had considered launching a law suit against Mr. GDP and that he would like to get money from Mr. GDP for these sexual assaults. F. BW’s Evidence [ 113 ] BW indicated that she was CS’ girlfriend of four years and that the two had a child together. She said that she met CS in 2009.

At the time of trial he was not very present in her life anymore. [ 114 ] BW gave evidence that while they were together she looked at CS’ telephone because she suspected him of cheating on her. She found a picture of CS’ penis listed under a 403 number, saved as “Garry”. She called the telephone number and got to Mr. GDP’s voicemail. BW said that she found the picture around April 2010. [ 115 ] She said the picture showed CS’ hand underneath his erect penis. She said it was definitely CS’ penis.

He had sent the same picture to her the night before and she could see that it was his room in the background. [ 116 ] BW said she confronted CS about the picture and he explained that he sent the picture to Mr. GDP in return for money. G. DJ’s Evidence [ 117 ] DJ was born in 1985. He was seven years old when he first went into foster care. At age 14, he moved into the P house. [ 118 ] DJ has a lengthy criminal record.

From 2000 to 2003, he was convicted in Youth Court of assault, mischief, failure to appear, failure to comply with a recognizance, and multiple counts of theft under $5,000 and breaking and entering.

From 2005 to 2013, he was convicted of carrying a concealed weapon, uttering a forged document, possession and assault with a weapon, mischief, resisting a peace officer, shoplifting, and multiple counts each of breaking and entering with theft, possession of property obtained by crime, dangerous operation of a motor vehicle, assault, theft under $5,000, and of various failures to comply and failures to attend. [ 119 ] DJ described the P home in glowing terms. He said that the foster children at the P’s had all the freedom in the world. They had food when they wanted it. They could go out.

They could have friends over. He resided at that residence for two years, until he was 16 years of age. [ 120 ] DJ testified that all the other foster children at the P residence were boys between the ages of 14 and 18. [ 121 ] DJ described the unusual dialogue at the house. He said that shortly after he moved in, Mr. GDP would make weird jokes saying “whip it out, let me see it”; “$20 for a blow job”. He made jokes of a sexual nature, “in part to belittle us”. DJ indicated that Mr.

GDP “even said these things in front of his wife, JP”. [ 122 ] DJ said that later on this occurred in private conversations involving just Mr. GDP and DJ. Mr. GDP would say things like “let me see your cock; whip it out” and “I bet you don’t have one”. [ 123 ] DJ said that he finally responded to Mr. GDP’s statement “whip it out” by saying “I got a big one”, and by pulling out his penis and showing it to Mr. GDP. This occurred upstairs in the living room, when no one else was there. [ 124 ] DJ said the sexual comments progressed further after that incident. Mr.

GDP challenged DJ to take out his penis and to put into Mr. GDP’s hand. DJ would refuse and Mr. GDP would call him a “pussy”. One day DJ agreed to the challenge. He said that Mr. GDP then tickled and caressed his genitalia. He said he got “freaked out” and did not talk to Mr. GDP for a couple of weeks. [ 125 ] DJ indicated that he was continuously in trouble with the police, got in trouble at home, and got kicked out by the Ps. He started to do crack cocaine and smoked hash.

[ 126 ] DJ described the first of many incidents in Mr. GDP’s van. DJ said he was 15 or 16 years old, and was using drugs at that time. Mr. GDP offered to pay DJ $20 in order to give him a blow job. Mr. GDP pulled over the van and then DJ “whipped out” his penis. He said that Mr. GDP then leaned over and gave him a blow job. He said that he ejaculated in Mr. GDP’s mouth and Mr. GDP swallowed it. Mr. GDP gave him $20, and drove him to the youth shelter. [ 127 ] DJ testified to receiving hundreds of blow jobs from Mr. GDP while they were in the car together.

He got $20 in exchange for a blow job. [ 128 ] DJ said that he and CS had told each other what was going on. They decided to make a joint offer to Mr. GDP. Mr. GDP accepted, masturbated each of them, gave each of them a blow job, and paid them each $40. He said that this happened on two occasions. [ 129 ] When asked why he continued to live at the P home despite these incidences, DJ responded that Mr.

GDP “was a father figure; he still is, in his perverse twisted fucking way”. [ 130 ] DJ indicated that during these blowjobs he always ejaculated into P’s mouth. [ 131 ] Later, on another occasion when DJ needed money, he said that Mr. GDP insisted that DJ perform anal sex on him. DJ complied and was paid $140. However, he said he hated doing it and it made him sick. Nonetheless, it occurred a second time as well. [ 132 ] DJ admitted that, when Mr.

GDP started to refuse to give him further money, DJ threatened to tell JP and the police and was able to extort further money from him. [ 133 ] DJ indicated that he never told JP about the incidents. He said that JP was a mother to him and that they were very close. He did not want to tell anyone because it was too embarrassing for him. He said he did not have any discussions with the other foster brothers as to the details of these events. He said he never asked them about it, and he never brought it up. [ 134 ] DJ indicated that his brother had heard about the commencement of the civil lawsuit against Mr.

GDP and the provincial government. His brother asked DJ if anything had happened to him. DJ confirmed that it had, though he did not provide any details. His brother wanted him to go forward and meet with the lawyer in the civil lawsuit. DJ said he initially refused. However, at one point, he desperately needed money to repay a debt; his safety was in jeopardy if he did not repay this debt. His brother agreed to provide him with the money with the condition that DJ go and see the lawyer.

DJ agreed, and accordingly went to see the lawyer. [ 135 ] DJ said that he had never seen the Statement of Claim filed by the civil lawyer, even though the Statement of Claim was partially in his name. He said he had received no cash advance and no money from victims’ services. He did not understand why his brother formed part of the lawsuit when his brother had never resided in the P residence. He said he has no interest in pursuing that claim. [ 136 ] DJ acknowledged that his brother told him that filing a lawsuit would help the whole family, and that his brother had been pressing him to see the civil lawyer.

DJ acknowledged that he gave CS the lawyer’s contact information so that if CS wanted to talk to the lawyer he could. [ 137 ] In cross-examination, defence counsel challenged DJ with a lengthy statement that he provided to the RCMP. However, the few challenges on that score were satisfactorily responded to by DJ. II. The Law [ 138 ] The defence challenges the credibility of the evidence of the complainants, and asks that I consider their evidence with caution as “ Vetrovec witnesses”. The Crown seeks to include each of the complainants’ evidence towards the other complainants’ charges as similar fact evidence.

These applications are interrelated in that they both involve an analysis of the reliability of the complainants’ evidence and involve the potential of each complainants’ evidence corroborating the other complainants’ evidence. A. Similar Fact Evidence [ 139 ] The Crown seeks to have the evidence of each complainant admitted in respect of the charges made by the other complainants as similar fact evidence. The Defence objects to the Crown’s application, maintaining that each charge should be considered on its own without regard to the similar fact evidence. B.

The Law Surrounding Similar Fact Evidence [ 140 ] The leading case on the admissibility of similar fact evidence is R v Handy, 2002 SCC 56 [“ Handy ”]. In this decision, Justice Binnie determined the test for admissibility of discreditable similar fact evidence where the credibility of the complainant was at issue, and determined the impact of potential collusion on the admissibility of such evidence. The principles in Handy have been clarified in subsequent jurisprudence, many of which cases were provided by the parties.

i) The Presumption of Inadmissibility [ 141 ] Similar fact evidence is presumptively inadmissible. Similar fact evidence is character evidence—evidence going to the general disposition or propensity of the accused to commit immoral or illegal acts. Character evidence is highly unreliable as circumstantial proof of conduct. It has a high potential for prejudice, distraction, and time consumption. It is thus generally excluded.

ii) The Test for Admissibility: Probative Value vs. Prejudicial Effect [ 142 ] However, the courts have created an exception allowing the admission of evidence of prior misconduct. Evidence of disposition or propensity can “ unusually and exceptionally be admitted” when the prior misconduct is so highly relevant and cogent that its probative value in the search for truth outweighs its potential for misuse ( ibid at para 64 [emphasis added]).

As such, to be admissible, the Crown must ultimately satisfy the trial judge on a balance of probabilities that the probative value of the similar fact evidence in relation to a particular issue in the case outweighs its potentially prejudicial effect. iii) Analysing the Evidence’s Probative Value [ 143 ] First, in assessing probative value, the trial judge should identify the particular issue in question for which the similar fact evidence is being offered. Otherwise phrased, the similar fact evidence must go to some issue beyond the disposition of the accused.

It is incumbent on the Crown to identify this issue ( ibid at para 74). The issue identified should be specific. In Handy , Justice Binnie identified the issue as not just the credibility of the complainant, but rather the credibility of her testimony regarding consent. [ 144 ] Second, for the probative value of similar fact evidence to outweigh its potentially prejudicial effect, the connectedness (or “nexus”) between the similar fact evidence and the offences alleged should reveal a degree of similarity establishing an “objective improbability of coincidence” ( ibid at para 106).

The evidence must demonstrate a “pattern of circumstances in which an accused is disposed to act in a certain way that is so closely linked to the offence charged that the possibility of mere coincidence, mistaken identity, or mistaken character of the act is so slight as to justify consideration of the similar fact evidence by the trier of fact” ( ibid at para 91). This is a contextual inquiry. Judges should focus on the qualitative aspect of the evidence.

They should not adopt a numerical approach to the calculation of similarities and differences between the evidence (see R v W(J) , 2013 ONCA 89 at paras 49-53 ). [ 145 ] The degree of similarity required for admissibility varies in each case. It “will depend on the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence” ( R v Carpenter , [1982] DLR No 129 at p 244, cited by Handy , supra para 78 ).

For instance, case law has noted that similar fact evidence tendered to prove identity may require distinctive features amounting to a “signature”, but “less cogent similarities may render the evidence admissible” in cases where the evidence is tendered to prove the actus reus of the offence (see R v Cresswell, 2009 ONCA 95 at para 9 ). In Handy , the Supreme Court explained that that the issues in different cases will be different “and the drivers of cogency regarding the desired inferences will be different” ( Handy , supra para 78 ).

Similarity does not necessarily require the evidence to be identical, nor does it even necessarily require a strong peculiarity or unusual distinctiveness (see ibid para 81, see R v Tunney , 2010 ONSC 5568 at para 8 ). Moreover, not every dissimilarity is fatal, but substantial dissimilarities may dilute probative strength. [ 146 ] The Supreme Court identified various factors that can help connect the similar fact evidence to the facts alleged in the charge. Factors that could be considered in assessing probative value include:

a) Proximity in time of the similar acts;

b) The extent to which the other acts are similar in detail to the charged conduct;

c) The number of occurrences of the similar acts;

d) The circumstances surrounding or relating to the similar acts;

e) Any distinctive feature(

s) unifying the incidents, such as the type of complainant or the nature of the relationship between the accused and the complainant(s) (see R v Tunney , supra );

f) Intervening events that undermine the unification of the incidents; and

g) Any other factors which would tend to support or rebut the underlying unity of the similar acts (see Handy , supra para 82 ). [ 147 ] Notably, not all of these factors will exist in every case, nor are any of them necessary to establish admissibility in every case. In evaluating factors, the trial judge should focus on the facts that relate to the issue for which the similar fact evidence is tendered. [ 148 ] Third, the similar fact evidence in question should be “reasonably capable of belief” ( see R v Canvin , 2012 NWTJ No 54 at para 55 ).

For instance, if the evidence is admitted by the accused, or is consistent with established facts, its probative value increases. So in considering admissibility, the trial judge should determine, at least on a threshold basis, the reliability of the similar fact evidence. Then the trier of fact will again assess the reliability and credibility of the evidence when considering whether the guilt of the accused has been proven beyond a reasonable doubt (see ibid ). iv) Analysing Collusion [ 149 ] Finally, in assessing probative value, the judge should also consider any potential collusion.

Collusion is defined as the “possibility that the complainants, in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing” ( R v Shearing, 2002 SCC 58 at para 44 ).

Collusion is a “crucial” factor to be considered in the admissibility analysis because collusion rebuts the very premise on which admissibility depends ( Handy , supra para 111 ). [ 150 ] The Supreme Court in Handy stated that the trial judge must first determine whether or not there is an “air of reality” to the allegation of collusion. If there is such an “air of reality”, the onus is on the Crown to satisfy the trial judge on a balance of probabilities

that the similar fact evidence is not tainted with collusion. If the Crown does not satisfy this onus, it is highly unlikely (if not impossible) that the probative value of the evidence would outweigh its prejudicial effect. If the Crown does satisfy their onus and shows that the evidence is not tainted, the evidence is admissible— as long as the evidence’s probative value still outweighs its prejudicial effect.

Even if the evidence is admitted, the trier of fact must still be alive to the possibility of collusion while assessing whether the evidence proves guilt beyond a reasonable doubt (see R v CB, supra ). [ 151 ] More than “mere opportunity” is required to taint the evidence: “the issue is concoction or collaboration, not contact” ( Handy , supra para 111 ). For instance, in Handy , there was opportunity and motive to collude because there was a “whiff of profit” ( ibid ).

However, in cases involving historical sexual abuse, continued discussion and continued recollection of the events in question is not enough to determine that there is collusion.

This behaviour is common, even inevitable (see R v Tunney , supra at paras 20, 22 ; see also R v Greenhalgh , 2012 BCCA 148 at para 27 ). [ 152 ] After these steps are taken – the consideration of 1) the issue in question, 2) the strength of the evidence in showing a specific propensity relating to this issue, 3) the reliability of the evidence, and 4) any possibility of collusion – the trial judge should then come to a conclusion on the probative value of the similar fact evidence.

v) Analysing the Evidence’s Prejudicial Effect [ 153 ] Next, the trial judge should assess the potential prejudice posed by the admission of the similar fact evidence. Similar fact evidence is inherently “poisonous” ( Handy , supra para 138 ).

There are two different types of potential prejudice that arise when similar fact evidence is introduced. [ 154 ] Moral prejudice includes: 1. the risk that the trier of fact will draw prohibited inferences that the accused is the kind of ‘bad person’ likely to commit the offence charged, 2. the risk that the trier will seek to punish the accused for prior acts, or 3. the risk that the trier would be distracted from deciding the issue in a reasoned way because of the inflammatory nature of the evidence (Justices Marc Rosenberg & Renee Pomerance, “Character Evidence and Similar Facts” (National Judicial Institute Evidence Workshop, delivered at the Westin Bear Mountain Golf Resort & Spa, Victoria, 27-31 July 2014), [unpublished]). [ 155 ] Reasoning prejudice includes: 1. the risk that the trier of fact will become confused about what evidence pertains to the charge at hand and what evidence pertains to extrinsic acts, 2. the risk that the trial will focus disproportionately on whether extrinsic acts occurred, or 3. the risk that the accused is unable to respond to an allegation of an extrinsic act because of the passage of time or the collateral nature of the inquiry ( ibid ). [ 156 ] Factors that increase the potential risk of prejudice include:

a) The inflammatory nature of the similar acts;

b) Whether the Crown can prove its point with less prejudicial evidence (e.g. if there are other complainants who are giving similar fact evidence: see R v Dorsey , 2012 ONCA 185 );

c) The potential distraction of the trier of fact from its proper focus on the facts charged; and

d) The potential for the undue consumption of time. [ 157 ] Subsequent case law has also stated that there is less risk of prejudice in judge alone trials because judges are “presumed to know the law and the proper and improper uses of the evidence...” (see R v B(RT), 2009 ONCA 177 at para 27 , cited in R v W(J) , supra at para 57 ). However, these risks are not eliminated: “the ability to self-instruct is not a panacea...

The spectre of moral or reasoning prejudice is always a concern regardless of who is sitting in judgment of the guilt or innocence of an accused” ( R v Villeda , 2011 ABCA 85 at para 18 , cited in R v Vuradin , 2011 ABCA 280 at para 24 ). vi) Weighing the Evidence’s Probative Value Against its Prejudicial Effect [ 158 ] The proper balance between probative value and prejudicial effect is difficult to strike. It is not necessarily inversely correlated.

The probative value and prejudicial effect of certain evidence may “rise and fall together” ( Handy , supra para 149 ). [ 159 ] If the similar fact evidence is more prejudicial than probative, it should not be admitted. The trier of fact would then evaluate the remaining evidence related to the charge to see if the Crown has proven its case beyond a reasonable doubt. [ 160 ] If the similar fact evidence is more probative than prejudicial, it should be admitted. The evidence then goes to the trier of fact, to be considered with all the other evidence in order to reach a verdict.

However, the trier of fact may only use the similar fact evidence in its verdict if it is satisfied that the incident occurred and the defendant was the person who committed it. If satisfied, the trier of fact

must only consider the similar fact evidence as demonstrative of specific (not general) propensity. It must also be careful to avoid both moral and reasoning prejudice in coming to its verdict. C. Is the Similar Fact Evidence in this Case Admissible? [ 161 ] There is no doubt that the accused was in a position of trust and authority in relation to the complainants while they resided in his home as his foster children. The question for the court then is whether he touched the complainants for a sexual purpose. [ 162 ] There are five complainants.

I must consider whether to allow the similar fact evidence to be applied in relation to each charge. [ 163 ] As stated above, the test to admit similar fact evidence is: is the similar fact evidence so highly relevant and cogent that its probative value outweighs its potential prejudicial effect?

i) Analyzing Probative Value

a) The Issue in Question [ 164 ] The issues in question for which the similar fact evidence are being offered is the actus reus of the offence and the credibility of the complainants in regard to the incidents in question.

b) The Strength of the Evidence in Showing a Specific Propensity Relating to this Issue [ 165 ] The evidence of each of the complainants demonstrates a degree of similarity and a pattern so closely linked to the offence charged that is establishes an ‘objective improbability of coincidence.’ [ 166 ] The complainants’ evidence demonstrate a pattern consisting of the accused ‘grooming’ the complainants, followed by sexual acts. The grooming started with comments around the table about the boys’ genitalia, discussions in which the accused took part.

From there, the evidence of the complainants is that the accused would speak to them in private about their genitalia and challenged them to show their genitalia to him. [ 167 ] The complainants indicated that the accused then moved on to performing fellatio on the complainants. MM’s evidence differed, however: he said he performed fellatio on the accused, which is not something the others reported. DJ described two incidents when he performed anal sex on the accused. None of the other complainants reported similar incidents.

Despite these differences, the accused performing fellatio is common to all of the complainants. And in each case, when the complainants ejaculated, they did so in the accused’s mouth. [ 168 ] The similar fact evidence shows a specific propensity on the part of the accused to touch for a sexual purpose the foster boys that lived in his house. The nature of the relationship between the accused and each complainant is the same: that of foster parent and foster child. Each complainant was similarly groomed by the accused.

The accused had a distinct ‘modus operandi’ involving numerous acts where the accused performed fellatio on the complainants, acts which were rewarded by the accused paying the complainants. The acts mainly took place in the house or in the accused’s van, when the accused’s spouse was not around. [ 169 ] The description of Guys’ Nights by the complainants further corroborate the sexual nature of the relationship between the participants and the accused, even though these events occurred after the complainants reached the age of majority.

c) Reliability of the complainants’ evidence [ 170 ] The complainants provided their evidence in their vernacular. Some were more well-spoken than others. Some were better prepared than others— they read over their previous evidence and statements made in court or to persons in authority. [ 171 ] CS was gregarious. His memory of times, dates, and of other particular details was not strong. On a number of occasions he was shown distinctions between his testimony at trial and previous statements or evidence he had given. However, I attribute that to inconsistencies in his memory, not prevarication.

CS seemed the least embarrassed with the events he recited, which made him more forthright and less reluctant to discuss the events in question than the other complainants. [ 172 ] MM was quite emotional in giving his evidence. He stated that his memory was terrible. By his own admission, he was hungover when giving his testimony. However, I found him to be direct in his responses to questions. [ 173 ] JP did not want to be in attendance on either of the occasions where he gave evidence; so much so that he had to be summoned by the court for his second attendance.

JP’s evidence, particularly as to the dates and timing of occurrences recited, was contradictory and unreliable. [ 174 ] RB answered Crown questioning with his arms crossed and mumbled his answers, which exemplified his reluctance to give his evidence. He admitted to serious drug and alcohol problems as well as an uncontrollable temper. That being said, he was still responsive to all questions in both his direct evidence and upon cross-examination, and he showed no difficulties with anger management on the stand. [ 175 ] DJ’s evidence was given in a direct and forthright manner.

The accuracy of his memory and his trustworthiness as a witness was challenged by reference to a lengthy prior statement given to police. However, I found that challenge to be ineffective. I found DJ to be believable.

[176] RO was a resident foster child of the P household, but he is not a complainant in the proceedings. RO readily conceded hisalcohol and drug habits while he was living with the Ps. This was raised to discredit his memory of the things he said he witnessed duringthe relevant period. RO conceded his weaknesses and did not try to hide from them. His evidence was, in effect, “I saw what I saw”. Ifound his observations to be reliable. [177] BW had no axe to grind. She was not cross-examined. I find no reason to doubt her credibility.

Her evidence is only collateral tothe charge, as her observations occurred after CS had left the P residence and when he was over 18. [178] There is, as well, independent corroborating evidence of some of the occurrences. Most importantly, the court has the evidenceof RO who was a resident of the house during the relevant time, but is not a complainant. His evidence is that he saw the accusedperforming fellatio on RB. There is also the evidence of DJ that Mr. GDP performed oral sex on him and CS together; though CS wasnot questioned about any such occurrence.

d) Collusion [179] The court is aware of the potential for collusion among the complainants. They could all contact each other and many indicatedthat they have done so. Two of the complainants are plaintiffs in a lawsuit against the accused and the government, and the othercomplainants are aware of this lawsuit. Some are considering joining in this lawsuit. There is at least a “whiff of profit”.

Hence, there isan air of reality to the allegations of collusion and the onus is on the Crown to show that satisfy this court on a balance of probabilitiesthat the similar fact evidence is not tainted with collusion. [180] Notwithstanding this possibility for collusion, the Crown has satisfied me that it has not occurred in this case. The evidence ofany one witness is not tailored to fit that of others; indeed, there are inconsistencies between them that one would not expect ifintentional collusion had transpired.

Unintentional collusion as to the acts that occurred to each of them is simply not a realisticpossibility. [181] Moreover, the case law states that the issue in determining whether the evidence is tainted by collusion is ‘concoction orcollaboration, not contact.’ In this case, many of the complainants remained in contact. Some even lived together after the eventstranspired. It was natural for the complainants to have ‘continued discussion and recollection’ of the incidents in question. I am satisfiedwith the complainants’ evidence that they did not discuss the events in detail.

These discussions are common, especially in the contextof historical sexual abuse cases. Overall, I am satisfied on the balance of probabilities that no collusion has occurred here. ii) Prejudicial Effects [182] This is a trial by judge alone, and the risk of moral or reasoning prejudice is thus lessened. However, I have still turned mymind to these potential prejudices. I am considering the complainants’ evidence in terms of the specific—not general— propensity ofthe accused to commit the offences charged.

I have been careful to consider the evidence as it pertains to the charges at hand, not to anyextrinsic acts. [183] The case law indicates that one factor that can increase the risk of prejudice is whether the Crown can prove its point with lessprejudicial evidence.

In this case, the Crown could potentially prove its case without the admission of this similar fact evidence, or withthe admission of only some of the other complainants’ evidence. iii) Conclusion on the Admissibility of the Similar Fact Evidence [184] I conclude that the probative value of the similar fact evidence outweighs its prejudicial effect, and I permit its admission inrespect of all charges. I also find that the similar fact evidence is corroborative of the evidence of each complainant. A.

The Principles in R v Vetrovec [185] Having admitted the similar fact evidence, I turn now to the Vetrovec issue. [186] The Supreme Court in R v Vetrovec (1982), (SCC), [1982] 1 SCR 811 [Vetrovec], described the rules involvedwhen a trier of fact considers the testimony of a “Vetrovec witness,” who is generally an important Crown witness with inherenttrustworthiness concerns.

Vetrovec witnesses’ testimony must be considered with great caution so as to diminish the risk of a miscarriageof justice caused by this potentially unreliable evidence. [187] The Supreme Court in R v Brooks, 2000 SCC 11 , [2000] 1 SCR 237 at para 2, described the circumstances thatmerited a “clear and sharp warning” to the trier of fact in considering certain unsavoury witness’ testimony.

The Supreme Court heldthat Vetrovec cautions should be applied after consideration of two main criteria: the extent to which the credibility of a witness issuspect and the importance of that witness’ testimony to the Crown’s case (ibid at para 4). [188] Circumstances that weighed in favour of a Vetrovec caution include involvement in criminal activities, a motive to lie by reasonof connection to the crime, the witness having previously lied under oath or in statements to the police, an unexplained delay in thewitness coming forward with his or her evidence, evidence that the witness will lie to obtain some form of advantage and/or the witnesshaving made prior inconsistent statements (ibid at para 79). [189] If the court determines that a Vetrovec caution is warranted, the trial judge must instruct the trier of fact to subject the witness’evidence to graver consideration.

This caution normally identifies the characteristics of the witness that brings his or her evidence intoquestion, states that their evidence requires special scrutiny and that it is dangerous to rely upon it, and advises the trier to look forindependent evidence which tends to confirm material parts of the witness’ evidence (ibid at 94).

[ 190 ] Here, as noted, all of the complainants other than MM have criminal records; all have problems with alcohol and drug abuse; characteristics that indicate their evidence requires special scrutiny. [ 191 ] The jurisprudence is clear that a relatively broad range of evidence is capable of serving as confirmatory evidence (Nikos Harris, “ Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship” (2005) 31 CR-ART 216 (WL)). Evidence which circumstantially supports a material part of the Vetrovec witness’ testimony can serve this purpose.

Confirmatory evidence should support a rational belief that the Vetrovec witness’ evidence is more likely to be believable. [ 192 ] In this case, the court can look to direct corroboration, such as one complainant or witness testifying to having witnessed a sexual act being performed by the accused on another of the complainants. We have, in this case, the evidence of RO (not a complainant) that he witnessed the accused performing fellatio on RB. We have evidence of MM that he and CS jointly received fellatio from the accused. We have evidence of CS that he observed DJ receiving oral sex from the accused.

We have evidence of sexual encounters during Guy’s Nights, which - while they only involved some of these individuals, and took place after the foster children turned 19 - were well known to all the foster children who gave evidence. We have the evidence of BW of having seen a photograph of CS penis being sent to the accused, and the evidence of RB that the accused asked for a photograph of his penis. B.

Analysis of the Facts as they Relate to a Vetrovec Caution [ 193 ] While all of the complainants except MM have admitted to criminal records, and heavy use of drugs and alcohol, I find that none of the complainants have a motive to lie; there is no evidence that they have previously lied under oath; I do not find that delay in coming forward with their evidence was unreasonable; and I am not concerned by some occasional inconsistencies in their evidence when compared to previous evidence or statements. [ 194 ] The complainants’ testimony is very important to the Crown’s case.

However, as discussed above in my analysis surrounding the similar fact evidence application, I found all the complainants to be credible, except JP when it came to his age at the time of the occurrences recited. [ 195 ] In the result, while I recognize the need for a Vetrovec caution, I am satisfied that the evidence of the complainants (other than JP) is credible and reliable, and is supported by confirmatory evidence. C. Analysis of the Facts in Relation to the Offences Charged. [ 196 ] In respect to Count Number 1, involving RB, I find RB’s evidence to be believable and truthful.

He is corroborated as to the act of fellatio in the basement by the evidence of RO. [ 197 ] Count Number 2, involving JH, was withdrawn by the Crown. [ 198 ] In regard to Count Number 3, involving CS, I find CS to be believable and truthful. The evidence of a sexual relationship between him and the accused is corroborated by others who said that the accused called CS “his favourite” and that the accused referred to CS as “elephant dick”.

It is also corroborated by BW’s evidence regarding the photograph of CS’ penis being sent to the accused; the evidence of others regarding Guys’ Nights (which CS attended); and the evidence of the sexual exchange between CS and the accused while watching television on Labour Day weekend.

While some of these corroborating incidents occurred after CS turned 18, they lend consistency to the grooming and sexual acts deposed to by CS which occurred while he was under 18. [ 199 ] In regard to Count Number 4, involving JP, JP’s evidence as to whether he was under 18 years of age at the time of the events is contradictory and unbelievable. [ 200 ] In regard to Count Number 5, involving DJ, even though DJ has commenced a civil lawsuit and seeks to be awarded damages, I nevertheless find DJ to be the most credible witness of all. Efforts to attack his credibility failed.

His answers to questions in both direct testimony and cross-examination were given immediately and directly, without hesitation or planning. [ 201 ] In regard to Count Number 6, involving MM, I found MM to be believable in his direct evidence and my opinion was not changed in cross-examination. While MM struck me as a very troubled teen, I am satisfied that the events he described in fact occurred. III.

Overall Findings [ 202 ] Having reviewed the evidence and having observed the witnesses, I find, beyond a reasonable doubt: [ 203 ] In respect of Count Number 1, involving the complainant RB, I find the accused GUILTY. [ 204 ] Count Number 2 has been withdrawn by the Crown. [ 205 ] In respect of Count Number 3, involving the complainant CS, I find the accused GUILTY. [ 206 ] In respect of Count Number 4, involving the complainant JP, I find the accused NOT GUILTY. [ 207 ] In respect of Count Number 5, involving the complainant DJ, I find the accused GUILTY. [ 208 ] In respect of Count Number 6, involving the complainant MM, I find the accused GUILTY.

Dated at the City of Calgary, Alberta this 23 rd day of October, 2014. R.J. Hall J.C.Q.B.A. Appearances: Gordon Haight For the Crown Ian McKay / Ryan Patmore for the Accused