R. v. A.D., 2017 BCSC 2496

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. A.D., 2017 BCSC 2496 Date: 20171219 Docket: 97665-2 Registry: Kamloops Regina v. A.D. Restriction on Publication: Pursuant to s. 486.4(2) C.C.C. Before: The Honourable Madam Justice Donegan Oral Reasons for Judgment Corrected Judgment: The Oral Reasons for Judgment were corrected at paragraph 192 on March 14, 2018 Counsel for the Crown: A.D. JanseCounsel for the Accused: J.P. GustafsonPlace and Date of Trial/Hearing: Kamloops, B.C. September 11-15, 19,21, and 25-28,2017Place and Date of Judgment: Kamloops, B.C.

December 19, 2017 INTRODUCTION [1] A.D. stands charged with seven counts of indecently assaulting another male person contrary to s. 156 of the Criminal Code,R.S.C. 1970, c. C-34. These charges arise from allegations made by seven complainants that A.D. indecently assaulted each of themduring the late 1970s and early 1980s. [2] In addition to evidence from the seven complainants, the Crown relies also upon a 2014 recorded statement made by A.D. Thedefence called no evidence. [3] The issue for my determination is whether the Crown has proven each element of each offence charged beyond a reasonabledoubt.

This involves my application of the law as it stood at the time of the allegations to my findings of fact in respect of each count.Where, in the course of these reasons, I use the words "the Crown has proven" or "I am satisfied of" or other such similar words, I amalways referring to proof beyond a reasonable doubt. [4] Although A.D. did not testify or call any evidence, I do have evidence from him in the form of his 2014 statement to police.Accordingly, I will instruct myself in accordance with the principles outlined in R. v. W.(D.), (SCC), [1991] 1 S.C.R.742 and R. v.

H.(C.W.), (BCCA). [5] I will start by outlining the elements the Crown must prove in respect of each count. I will then turn to consider each countindividually and separately from the others, making findings of fact and then applying the law to those facts. [6] I will say a brief word about the assessment of credibility and reliability here. The court's fact-finding role requires anassessment of the credibility, which is truthfulness and honesty of a witness, and the reliability, or accuracy, of his or her evidence. Thisrequires consideration of many factors.

Madam Justice Ker conveniently summarized many of these factors in Gill Tech Framing Ltd. v.Gill, 2012 BCSC 1913: [27] The factors to be considered when assessing credibility were summarized by Madam Justice Dillon in Bradshaw v. Stenner,2010 BCSC 1398 at para. 186, as follows: Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and theaccuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R. 452, 50D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity to observeevents, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence

harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and thedemeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, (BC CA),[1952] 2 D.L.R. 354 (B.C.C.A.); R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)).

Ultimately, thevalidity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown tobe in existence at the time (Faryna at para. 356). [28] In assessing credibility in the face of conflicting evidence, the Nova Scotia Supreme Court in Re: Novac Estate, 2008 NSSC 283noted the following at paras. 36 and 37: [36] There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, priorinconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness' testimony.

c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v.Chorny, (BC CA), [1951] B.C.J. No. 152, 1951 CarswellBC 133, it is "in harmony with the preponderance ofprobabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions", but indoing so I am required not to rely on false or frail assumptions about human behavior.

d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done withcaution (R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99 , paras. 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider themotive that witnesses may have to fabricate evidence. R. v. J.H., (ON CA), [2005] O.J. No. 39 (Ont. C.A.), paras. 51-56). [37] There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On thecontrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness'sevidence. (See R. v. D.R. (SCC), [1996] 2 S.C.R. 291 at para. 93 and R. v.

J.H., supra). [7] I will add that I am cautious about placing too much reliance on demeanour of a witness. I have no baseline upon which toassess the demeanour of the witness and I know that a courtroom can be an unfamiliar and intimidating place. Everyone reactsdifferently. ELEMENTS OF THE OFFENCE [8] I will begin by discussing the elements of the offence generally.

I will then focus on certain specific elements argued bycounsel in this case. [9] With respect to the actus reus, the physical elements, counsel agree the Crown must prove: (1) that the accused applied forceto the complainant; (2) the act was indecent; and (3) the complainant did not consent to the act complained of. [10] With respect to the mens rea, the mental element, counsel agree the Crown must prove: (1) the accused intended to apply forceto the complainant; (2) the accused knew or was being reckless or wilfully blind to the lack of consent on the part of the complainant. [11] I will address the specific arguments made in respect of each count further in these reasons because they vary slightly, but willsay here generally that Mr.

Gustafson, on behalf of his client, takes the overall position that the memories of each complainant in respectof each count are too affected by the passage of time in order to be reliable enough to ground any conviction. [12] Since submissions of both counsel focused heavily on one particular element of the actus reus - whether the Crown has proventhe lack of consent of each complainant - I will outline the legal principles that I am to apply in this regard, as the law stood during thetimeframe of the allegations in this indictment.

Lack of Consent [13] This element of the actus reus, lack of consent, was counsel's primary focus in submissions. The age of consent during thetimeframe of this indictment was different than it is today. Today a young person cannot consent to sexual activity with an adult until heor she is 16 years old. During the timeframe of the indictment, consent could be given at 14. [14] This element, lack of consent, is subjective and determined by the complainant's internal state of mind. Therefore, at this stageit is only the complainant's perspective that is considered: R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at paras. 26-27.A complainant's assertion as to his or her state of mind may be challenged and thereby raise a reasonable doubt. In this regard, Mr.Justice Major in Ewanchuk, held as follows: [29] While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessedby the trial judge, or jury, in light of all the evidence.

It is open to the accused to claim that the complainant’s words and actions, beforeand during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to takeplace. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown hasdischarged its obligation to prove the absence of consent.

[30] The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [ 15 ] As well, there are circumstances where the consent of a complainant may be vitiated.

As counsel emphasized, the law here has changed and evolved over time. Prior to January 4, 1983, only consent obtained by fraud could be considered “no consent” for the purposes of indecent assault on a male under s. 156 of the Criminal Code . The offence with which A.D. is now charged, on all counts, was repealed on January 4, 1983, a time when a number of amendments to the Criminal Code were made, including in the area of consent. [ 16 ]

Section 156 read: Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for 10 years. [ 17 ] At that time, assault was defined in s. 244 of the Criminal Code as follows: A person commits an assault when (

a) without the consent of another person or with consent, where it is obtained by fraud, he applies force intentionally to the person of the other, directly or indirectly; [ 18 ] Therefore, at the time of the allegations in the case at bar, consent could only be vitiated where it was obtained by fraud. Fraud has no application to this case. [ 19 ] When the offence under s. 156 of the Criminal Code was repealed in 1983, the offence of sexual assault was created. The relevant provisions of the definition of assault were also amended to read: 244.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; …

(2) This

section applies to all forms of assault, including sexual assault, ...

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority. [ 20 ] As we can see from s-s. (3) above, the defined circumstances where consent is vitiated was expanded to include the situation where the complainant’s submission or lack of resistance was obtained by the exercise of authority. [ 21 ] Following these 1983 amendments, amendments in this area continued to be made and were summarized by Madam Justice Ryan in R. v. L.B. , [1998] Y.J. No. 12 at para. 25 : [25] The sexual assault provisions remained the same, although the

section numbers changed from time to time until August 15, 1992 when "consent", until that time undefined, was specifically defined as a "voluntary agreement of the complainant to engage in the sexual activity in question"; the "no consent" provisions were expanded; and the defence of honest belief became unavailable to an accused who failed to take reasonable steps to ascertain that the complainant was consenting. [ 22 ] In the case at bar, the Crown argues that A.D. was in a relationship of authority toward each complainant.

The question then becomes how the court ought to consider such a relationship, if any, in respect of the issue of the complainant's consent. Counsel have provided some binding appellate decisions from which they derive a framework that they encourage me to use in respect of this issue.

(1) R. v. O'Connor , [1998] B.C.J No. 649 (B.C.C.A.) [ 23 ] In this case, the accused was a Roman Catholic priest who was the principal of a residential school. He was convicted at trial of rape and indecent assault with respect to two complainants. One complainant, M.A.J., attended the school as a student and, at the times in question, worked at the school in the office and lived in residence at the school. At trial, she testified that when she was 19 years old, the accused had sex with her.

She did not consent and told the accused this, but took off her clothing and offered no resistance to him because he was an authority figure to her and she was afraid of losing her job and her school band travel benefits. The accused at trial admitted the sexual act, but his defence was consent. He was convicted. [ 24 ] In ordering a new trial, the British Columbia Court of Appeal considered the issue of consent and the relationship of authority between an accused and a complainant before and after the 1983 amendments to the Criminal Code . After reviewing the jurisprudence, the court held at para. 42:

[42] These cases establish that: (1) consent means an active will in the mind of the complainant to permit the doing of the act, and (2) if a relationship of authority exists between the accused and the complainant it is a circumstance which may be taken into account in determining whether the complainant consented to the acts complained of, and, if she did not consent, to explain the lack of resistance. [ 25 ] The Court of Appeal ordered a new trial on the following basis: [45] To look to s. 135(

a) for a definition of consent which goes beyond the notion of the conscious exercise of will and into the area of the "genuineness" or "validity" of the consent is to step into uncertain territory. A wife may consent to have sex with her husband because he threatens to find another partner if she does not. Her consent is not "genuine" or free from pressure — she feels compelled to go along with her husband's wishes.

The husband's behaviour is in some senses coercive, but not criminal. [46] Christine Boyle recognized this difficulty in her book, Sexual Assault , where she said, in dealing with the 1983 Code revisions (at pp. 61-2): 3 It seems to be an enormous task to begin to assess the culpability involved where a man, for example, takes advantage of his superior social and economic status and the relative docility and desire to please of a particular woman, or where sexual intercourse occurs because of fear of, not force, but negative social repercussions.

Many of us are reluctant to grapple with these moral issues in our everyday lives, and Parliament has, in a sense, sidestepped the issue by continuing (with some significant additions) the old approach that was used with rape, that of listing factors which vitiate consent. It may well be that, because of the lack of sophistication of the criminal law, and its need to focus on factors that are relatively clear-cut in a factual sense, this is the better approach. Thus future reform may concentrate on refining the list rather than radical change. Ms.

Boyle adds this footnote: Depending of course on prevailing notions of what ought to be criminalized. As P. Atiyah states in The Rise and Fall of Freedom of Contract (1979), at p. 436, "the idea, that a man's will is 'overborne' by certain types of pressure and not by others is, both in logic indefensible, and in practice impossible of application. The reality is that some forms of pressure are in conformity with the … moral ideas of the community, and others are not." [47] We are of the view that the Legislature set out a complete set, or list, of factors which vitiate consent in s. 135(b).

The structure of the legislation and the philosophical difficulty in defining "genuine" consent persuade us that this is so, as well as the simple point that to look beyond s. 135(

b) to find a more comprehensive definition of consent would be to make s. 135(

b) redundant. . . . [73] Persuaded that the exercise of authority could vitiate consent, the trial judge could assume consent and move to determining whether the sex act took place because of the exercise of authority. He did not need to examine the complainant's testimony that she did not consent and had communicated it to the appellant. If the exercise of authority could vitiate consent then it did not matter whether the complainant agreed to the sex act because of the exercise of authority (vitiated consent) or whether she did not consent and merely submitted because of the appellant's position.

This explains why the trial judge spoke both of consent and no consent interchangeably throughout his reasons. [74] There were a number of courses open to the trial judge. If he accepted the evidence of the complainant as she told it in chief he could have convicted the appellant of rape. If he found that the complainant did not consent but failed to communicate non-consent he could have convicted the appellant of rape if the Crown negatived the defence of honest belief. If the trial judge found that the complainant consented or if he had a doubt that she did, then he should have acquitted the appellant.

It was incumbent on the trial judge to resolve the question of consent. He did not have the benefit of the extensive arguments that were made in this Court. He did not resolve the issue of consent.

There must be a new trial on this count. [ 26 ] In other words, the Court of Appeal in O'Connor held that for cases of indecent assault alleged to have occurred before January 4, 1983, the accused's “position of authority”, if any, is a factor to consider in determining whether consent of the complainant was obtained or not, but where consent was obtained, the exercise of any such authority is not a vitiating factor. [ 27 ] As I have said, this changed after January 4, 1983, whereby consent obtained by the exercise of authority was deemed to be no consent at all under s. 244(3) of the Criminal Code , but of course that provision is of no assistance to the Crown in this case.

(2) R. v. L.B. , [1998] Y.J. No. 12 (B.C.C.A.) [ 28 ] In this case, the accused, who was a customs officer, was convicted of one count of indecent assault and one count of sexual assault following a trial. The counts related to a single complainant who was a friend of the accused's son and 17 years old when he first came to know the accused. He saw the accused as an authority figure. The indictment in that case spanned 13 years (1980 until 1993) and was separated into two counts. The first count alleged indecent assault between 1980 and 1983.

The second count alleged sexual assault from 1983 to 1993. [ 29 ] In granting a new trial, Ryan J.A. concluded that the trial judge erred in a few ways, including by failing to take into account the different Criminal Code provisions with respect to the meaning of consent for the purpose of indecent assault and sexual assault. [ 30 ] The Court followed and summarized O’Connor at paras. 32 and 33: [32] In R. v.

O'Connor , this Court, constituted as the British Columbia Court of Appeal, held that for cases of indecent assault that occurred prior to January 4, 1983 the "exercise of authority" is a factor to consider in determining whether consent has been obtained or not, but where consent has been obtained, the exercise of authority is not a vitiating factor. As I noted earlier, after January 4, 1983 consent obtained by the exercise of authority was deemed by s. 244(3) of the Code to be "no consent". But this

section was not available

to the Crown prior to that date. [33] As a result of this jurisprudence, for purposes of the case at bar, on the first count the trial judge could examine whether theappellant was in a position of authority over the complainant and if so, whether he exercised that authority to compel the complainant tohave sex against his will or not. The complainant's failure to resist or articulate his unwillingness to participate in the first sex act mightbe explained by his relationship to the appellant but if the complainant consented to sex because of this relationship it could not be saidthat the consent was "vitiated".

On the second count, because the activity occurred after January 4, 1983, if the complainant's consentwas obtained by the appellant as the result of the exercise of authority the Code provides that such consent must be considered "noconsent".

(3) R. v. Shearing, 2000 BCCA 83 [31] O'Connor and L.B. were followed again by the Court of Appeal in this case.

In Shearing, the Court again held that trial judgesmust draw a distinction between pre-1983 cases where a relationship of authority can only be considered on the question of whetherconsent was in fact given, and those after the 1983 amendments where the exercise of authority can render consent invalid: para. 99. [32] It is against this jurisprudential backdrop that counsel both submit that the following framework would be useful to my analysisof whether the Crown has proven that one element of the actus reus, that is the absence of consent, in this pre-1983 case.

I agree withtheir approach. [33] In respect of each individual count, if I conclude the Crown has proven that A.D. committed the indecent act(s), I must firstdetermine the age of the complainant at the time of the act(s).

If the complainant was under 14 years of age at the time of the act or acts,then he was incapable of providing consent and the absence of consent has been proven. [34] If I find the complainant was 14 years or older at the time of the act(s), in assessing whether the Crown has proven he did notconsent, I must first determine whether the Crown has proven A.D. was in a position of authority in relation to that particularcomplainant at the time of the act(s).

If I conclude A.D. was in a position of authority in relation to that particular complainant at thetime of the act(s), this is a factor to consider in assessing the overall evidence on the issue of whether the Crown has proven the absenceof the complainant's consent beyond a reasonable doubt. [35] This seems a convenient place to briefly discuss the meaning of “position of authority”. [36] In R. v. Audet, (SCC), [1996] 2 S.C.R. 171, Mr. Justice La Forest, writing for the majority, considered themeaning and scope of the expressions "position of authority" and "position of trust" commencing at para. 33.

The Court ultimatelydecided that the words "authority" and "trust" must be interpreted in accordance with their ordinary meaning and must not be restricted tocases in which the relationship of authority stems from a role of the accused, but must extend to any relationship in which the accusedactually exercises such a power. [37] The Court went on to explain that because the concepts of “position of trust” and “position of authority” are difficult to definein the abstract, it would be inappropriate to try and delineate its limits in a factual vacuum, and therefore held at para. 38: [38] It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of therelationship between a young person and an accused, whether the accused was in a position of trust or authority towards the youngperson or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence.

One of thedifficulties that will undoubtedly arise in some cases concerns the determination of the times when the “position” or “relationship” inquestion begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact.The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accusedin relation to the young person will of course be relevant in many cases. [38] With that outline, I will now turn to consider each count.

COUNT 1 [39] Count 1 charges A.D. with indecently assaulting S.Z., between January 1, 1976, and December 31, 1976. The evidence on thiscount comes from two sources: S.Z.'s testimony and A.D.'s 2014 statement to police. [40] S.Z. was born on September 11, 1962. He testified on his 55th birthday. S.Z. testified about an incident in the spring of 1976where A.D. had sexual contact with him. He testified that he believed he was 14 years old at the time and that A.D. was in his earlytwenties. [41] S.Z. was able to orient this incident in time as a result of a significant event that occurred on Christmas Day, 1975.

OnChristmas morning that year with 13 family members present, S.Z. and his family lost their [location omitted] home to a fire. The firestarted in the porch and rendered the home a total loss. For approximately the next year, the family rented the home next door while theyrebuilt. [42] A.D. was one of S.Z.'s hockey coaches at the time. He was not the head coach, but rather one of the volunteer coaches thathelped out. S.Z. could not recall A.D.'s specific role with his hockey team, other than he used to shoot the pucks at the players andhelped out coaching.

S.Z. also believed A.D. worked as an auxiliary RCMP officer at the [location omitted] detachment at that time, aswell. Known to his father through hockey and coaching, and also known to be somewhat of a handyman, S.Z.'s father hired A.D. to helpdig a new basement when rebuilding their family home. [43] A.D. lived in [location omitted] at the time, approximately a 45-minute drive from the Z. residence, so A.D. stayed with the Z.

family in their rental home while he did this work. In the rental home, S.Z. shared a room with his older brother. They each had their own bed. His brother's was a single bed and S.Z.'s was a double. His parents had their own room and his sister had her own room. When A.D. stayed with their family during the time he dug the new basement, he shared S.Z.'s bed. [ 44 ] One evening, while S.Z. was trying to go to sleep with A.D. next to him in bed, he described A.D. "creeping" over to his side of the bed. S.Z. does not recall how, but somehow his underwear ended up down at his knees.

Underneath the blankets and using his hands, A.D. then played with S.Z.'s penis. Using his other hand, A.D. played with his own penis. A.D. also performed oral sex on S.Z. [ 45 ] S.Z. described that while A.D. was doing these things to him, he squirmed and he froze. He recalled being flat on his back and, other than squirming a bit, he did not move. He felt that if he moved, he might wake someone like his brother or his parents. He described being very, very scared. He did not understand what A.D. was doing to him. [ 46 ] S.Z. is unable to say how long A.D. performed oral sex upon him.

It stopped after S.Z. made some kind of noise. A.D. then rolled over on his side of the bed against the wall. The two never spoke of what happened. [ 47 ] S.Z. believes this event occurred around May of 1976. He believes this was the timeframe, because it accords with the end of hockey season and with when the ground was thawed enough for A.D. to be able to dig the basement of their home. [ 48 ] After this incident, A.D.'s behaviour toward S.Z. changed. To S.Z.'s perception, A.D. became very nice to him, as well as controlling. He drove S.Z. to and from school and hockey on occasion and took him out to buy food.

They golfed and curled together on occasion after the incident, but they never spoke of the incident. [ 49 ] In cross-examination, S.Z. described with, I note, some bitterness that what happened between them was their “little secret”. [ 50 ] During one occasion when A.D. was giving S.Z. a ride to hockey or school after the incident occurred, S.Z. recalled that A.D. showed him a revolver that he kept in his truck. S.Z. recalled details about the truck, did not know much about guns, but he thought it looked like a “big old .45”.

He saw it on the seat of the truck under some papers. [ 51 ] S.Z. testified that he absolutely did not want A.D. to do what he did to him that night. He did not tell anyone about what happened for a long time. He described that he was scared; scared of what his parents, brother, sister, and friends might think. He was fairly popular in elementary school and high school and was afraid of being shunned. [ 52 ] S.Z. described another event involving A.D. when he was 15 years old and A.D. took him on a golfing trip to [location omitted].

They got a hotel room at the golf course where he described A.D. giving him alcohol and he eventually passed out. S.Z. does not know if anything occurred while he was unconscious. [ 53 ] In cross-examination, S.Z. agreed that some of the details of the incident are difficult to recall. For example, he conceded that he could not recall specifically what was going on before the incident happened, other than there was no talking immediately before A.D. began to touch him.

He agreed that he could not say precisely when in the spring of that year this occurred or what time of the evening it occurred, other than it was dark outside. He also fairly agreed that while he believes his older brother was asleep during the event, he cannot be sure of this. [ 54 ] A.D. discussed S.Z.'s allegations to police somewhat in his statement.

He said that he recalled "just laying in bed together, that they did share a bed." He could not recall anything of a sexual nature happening between them, but in his statement did say that he remembered giving S.Z. back rubs as a result of S.Z. having horrific headaches. A.D. also recalled that S.Z.'s brother would have been in the same room. [ 55 ] Later in the statement to police, A.D. spoke directly to the camera and apologized to S.Z. in these words: . . . my deepest regrets. I have ruined your life obviously. Uh I have no excuse.

I apologize from the bottom of my heart and I pray that [your] life will change for the better. [ 56 ] A.D.'s version of events, as related in his 2014 statement to police, was put to S.Z. in cross-examination. S.Z. denied suffering from migraine headaches as a teenager. He denied receiving a neck massage from A.D. to relieve his migraine headache and strongly denied the suggestion that A.D. actually had no sexual contact with him at all. S.Z. also denied the suggestion that A.D. never had a gun during that time and never showed him a gun. [ 57 ] I find S.Z. to be a very credible witness.

I also find his evidence reliable. I find him to be a sincere, thoughtful, and careful witness with no apparent motive to lie. He exhibited what appeared to be genuine emotions of shame, embarrassment and sadness while he testified. Despite these emotions, he did not exaggerate his evidence or try to fill in any areas where his memories were less than firm. He did not change his evidence, nor did his evidence contain any inconsistencies, either externally or internally. He was firm in his recollections of the sexual conduct that occurred, and other significant events in his life during that timeframe.

This event would have been significant for him and, I find, memorable to him. [ 58 ] S.Z.'s recollections of the timing of the event were grounded in firm memories of other significant events in his life at the time, such as the burning of the family home and A.D. helping to dig the new basement after hockey season when the ground was thawed enough to dig. [ 59 ] While firm in his memories of the significant aspects of his life at the time and the event itself, S.Z. fairly conceded that he was unable to recall peripheral details.

His inability to recall these peripheral details causes me no reason to doubt the reliability of his evidence. S.Z. is an adult witness, recalling memories from his childhood or adolescence. Minor details would not lie at the centre of his memory of this significant event in his life and would not have been important to him at that time. [ 60 ] In short, I have no hesitation accepting the accuracy and reliability of S.Z.'s memories of the acts that occurred in his bed that

night. [ 61 ] I do not accept A.D.'s statement in his statement to police about his relationship with S.Z., nor do they raise a reasonable doubt in my mind. [ 62 ] A.D.'s statements in respect of S.Z. were inconsistent and unsure. A.D. first told Sergeant Carr that he remembered that S.Z. was the guy whose house burned down, but could not recall the events that S.Z. was alleging. He said initially that he would, however, accept whatever was said, referring to whatever was said by S.Z.

When pressed for details of his memory, A.D. then said he did not recall any kind of contact with S.Z. other than that they were good friends who played golf and hockey and that he was with the Z. family a lot. When pressed further, he told Sergeant Carr that he remembered sharing a bed with S.Z. and recalled giving him back rubs. He remembered that S.Z.'s brother would have been in the same room too. In the end, A.D. spoke directly to the camera and, as I have said, apologized. [ 63 ] A.D.'s recollections about his conduct toward S.Z. were unclear, inconsistent and, in the end, I find very unreliable.

His recollections, such as they are, do not create any reasonable doubt in my mind.

Actus Reus : Has the Crown proven A.D. applied force to S.Z. and that force constitutes an indecent act? [ 64 ] I will say here at the outset that with respect to every count on the indictment, A.D. concedes that if the Crown has proven that he committed the alleged act(s), they constitute indecent acts as that term is defined in the jurisprudence. [ 65 ] Based upon S.Z.'s evidence, I am satisfied beyond a reasonable doubt that A.D. applied force to S.Z. at or near [location omitted], British Columbia, in the spring of 1976, and that the force he applied constitutes an indecent act.

Actus Reus: Has the Crown proven that S.Z. did not consent to the act? [ 66 ] As I have said at the outset, this element of the offence drew counsel's primary focus in submissions. [ 67 ] The Crown has proven that the act occurred in the spring of 1976 at a time when S.Z. was 13 years old. He would have turned 14 that same fall. I find S.Z. was 13 years old at the time of the indecent act and was simply mistaken in his mathematical calculation when he testified he believed he was 14.

His miscalculation is an understandable mathematical error and does not raise a reasonable doubt about his age at the time of the act. Based upon his date of birth and his reliable evidence about when the act occurred, I am satisfied S.Z. was 13 years old at the time of the indecent act. [ 68 ] I am also satisfied and find that at the time of the indecent act, A.D. was approximately 21 years old. In March of 2014, during his statement, A.D. told Sergeant Carr he was 59 years old. I accept this evidence, as A.D. would have no motive to lie about his age.

A.D.'s actual date of birth has not been adduced in evidence in this trial, so I am unable to find his exact age in the spring of 1976, but can conclude, based upon his admission, that he would have been approximately 21 years old at the time of this indecent act. [ 69 ] As a 13-year-old, S.Z. was incapable of providing consent. Therefore, I find the Crown has proven that S.Z. did not consent to the act. [ 70 ] I will add that my conclusion here would be the same even if S.Z. was found to be 14 years of age at the time of the act.

First, I would conclude that the Crown has proven that A.D. was in a position of authority over S.Z. at the time of the act. A.D. was one of S.Z.'s hockey coaches, he was a family friend who S.Z. knew to be an auxiliary member of the RCMP and who also mentored him in golf. Within this factual matrix, S.Z.'s parents permitted A.D. to live in their home for a time and share their son's bed.

In this context, A.D. had an elevated status of both trust and authority over S.Z., a status that gave S.Z.'s parents reason to have faith and trust in A.D. to allow him to live in their home and share their son's bed. [ 71 ] S.Z. gave clear evidence that I accept that he did not consent. A.D.'s relationship of authority towards him explains S.Z.'s lack of resistance to and silence in the face of what A.D. was doing.

Nothing in the evidence causes me to doubt S.Z.'s evidence that he did not consent. [ 72 ] In all of the circumstances, even if it could be said that S.Z. was 14 years old at the time of the event, I would still conclude the Crown has proven beyond a reasonable doubt that S.Z. did not, in fact, consent. [ 73 ] The Crown has proven all elements of the actus reus of this offence.

Mens rea: Has the Crown proven A.D. intended to apply force to S.Z. and that A.D. knew or was being reckless or wilfully blind to S.Z.'s lack of consent? [ 74 ] Neither counsel spent much time in submissions on the mens rea of this offence, but I have outlined Mr. Gustafson's general position with respect to each count.

He urges me to consider the shortcomings in the complainant's memories, such that I should find there is insufficient evidence from which I could assess whether the mens rea has been proven. [ 75 ] First, given the nature of the force A.D. applied to S.Z. and the circumstances under which it was applied, I have no difficulty concluding the Crown has proven that A.D. intended to apply that force. [ 76 ] Second, I conclude the Crown has proven that A.D. knew S.Z. was not consenting.

A.D. was one of S.Z.'s hockey coaches at the time of this event and knew the Z. family well enough to be invited to live in their home and sleep in their son's bed. A reasonable

inference can be drawn that A.D. knew S.Z.'s general age at the time, around 13 or 14 years old.

Even if he was specifically unaware that S.Z. was 13 years old and incapable of providing consent, and thought perhaps he was 14 years old, the evidence proves that S.Z. did not communicate any consent, either verbally or through his conduct. [ 77 ] In these circumstances, I am satisfied the Crown has proven beyond a reasonable doubt that A.D. knew S.Z. was not consenting to the act or was, at the very least, reckless or wilfully blind to S.Z.'s lack of consent in the circumstances. [ 78 ] As well, although unnecessary to this conclusion, this conclusion finds support in A.D.'s general admission in his statement that he "absolutely" would have realized at the time that what he was doing was wrong. [ 79 ] Having found all elements of the offence in Count 1 proven by the Crown, I find A.D. guilty of Count 1.

COUNT 2 [ 80 ] Count 2 charges A.D. with indecently assaulting M.R., in [location omitted], [location omitted], [location omitted], and [location omitted], British Columbia, between January 1, 1976, and December 31, 1977. [ 81 ] The evidence on this count comes from two sources: M.R.'s testimony and A.D.'s statement to police. [ 82 ] M.R. was born on April 4, 1962, and is currently 55 years old. He grew up in [location omitted]. M.R. started playing hockey at age 14 or 15. He met A.D. through hockey and believes that A.D. helped coach his teams.

He also came to know A.D. at this time through their mutual employment at a [location omitted] gas station. He did not know A.D.'s age, but believed him to be older than him. [ 83 ] M.R. described three incidents where he and A.D. had sexual contact. The first incident occurred in the summer when M.R. believes he was 14 or 15 years old. A.D. invited him to his parents' -- that is A.D.'s parents' golf course in [location omitted] for the weekend. M.R. accepted the invitation. A.D. drove him to the golf course in his old Ford pickup truck.

They stayed one night at a small cabin on the property which M.R. understood to be A.D.'s home. The cabin had one bed. [ 84 ] After they finished golfing, they went back to the cabin. While they were laying on the bed together, A.D. produced some pornographic magazines which they both viewed. This was M.R.'s first experience viewing pornography. A.D. started talking about masturbating. He asked M.R. if he could masturbate him.

M.R. told A.D. that he thought that would be okay. [ 85 ] M.R. does not recall how his clothes were removed, but recalled A.D. touched M.R.'s penis with his hand, masturbated him, and then performed fellatio on him. M.R. could not recall if A.D. asked his permission to perform fellatio on him. [ 86 ] When asked how the incident ended, M.R. paused in his evidence and replied that after a while “he just stopped and then we went to sleep”. [ 87 ] M.R. was asked if he wanted A.D. to masturbate him. He said no. He was asked why, if he felt that way, he told A.D. it was okay.

M.R. explained that he felt it was an awkward situation and did not know how to respond. At the time, he thought of A.D. as a friend, someone he worked with at the garage. [ 88 ] A.D. and M.R. did not discuss what occurred between them. The following day, A.D. did some work at the golf course and M.R. played some golf. A.D. drove him home that same day. [ 89 ] The second incident occurred in [location omitted] that same summer. M.R. recalled that A.D. invited him to go along with him on a trip to [location omitted].

As he recalled it, A.D.'s had to take swimming lessons in connection with his position as an auxiliary RCMP member. M.R. accepted the invitation. [ 90 ] A.D.'s swimming lessons in [location omitted] were somewhere, as M.R. recalled it, in the [location omitted] area on the north shore of [location omitted]. After the lessons were done, they went out for fast food and then to a motel room somewhere in [location omitted], a room rented by A.D.

Once inside the motel room, while the two were lying together on the bed watching television, A.D. began squeezing some blackheads on M.R.'s thighs, and then began to masturbate him and perform fellatio on him. [ 91 ] In examination in chief, M.R. was asked if A.D. asked him if he wanted this contact. After a long pause to reflect on his answer, M.R. said he could not recall. The sexual contact continued with A.D. climbing on top of M.R. in what he described as the “69” position.

A.D. continued to perform fellatio on M.R. and M.R. masturbated A.D. from that position until they both ejaculated. [ 92 ] When asked if he wanted this sexual contact to occur, M.R. paused again in his evidence for quite a long period of time to reflect. When he finally answered, he said he was not really sure. He had never had sexual contact with anyone before these incidents with A.D. He did not know if he wanted the sexual contact to occur; he found it confusing. [ 93 ] The following day, A.D. had more swimming lessons. They did a little shopping.

M.R. recalled purchasing a skateboard before they drove back to [location omitted]. [ 94 ] The third incident occurred that same summer when M.R. travelled, along with A.D., to either [location omitted] or [location omitted]. The purpose of the trip was for A.D. to have his new Ford pickup truck serviced. After getting something to eat, the two went to a motel room rented by A.D. They were, as M.R. described it, horsing around or wrestling on the bed. A.D. ended up performing fellatio on M.R. M.R. was unsure whether A.D. asked him whether the sexual contact was okay or if it just happened.

He did not touch A.D. sexually. [ 95 ] M.R. was asked if he wanted this sexual contact to happen. Again, after a very long pause to reflect, M.R. replied that he did not know. He said it was just so confusing; it felt good, he did not know.

[ 96 ] The following morning, A.D. awoke in the hotel room with an erection. He said to M.R., "You can't waste a hard-on," and proceeded to masturbate. M.R. recalled sitting on his bed and masturbating himself a little bit as well, but nothing happened between the two of them. [ 97 ] M.R. was a member of a bantam hockey team in [location omitted] in 1977. A.D. was the assistant coach of this team. He identified himself in a newspaper

article from that timeframe showing a photograph of his hockey team. M.R. confirmed that the head coaches for the hockey team were Mr. S., a father of one of the other players and a person who was in his forties or perhaps older at the time. Another coach he identified was Mr. K., a man of similar age to Mr. S. He confirmed that other coaches he had at the time were mostly younger guys who had perhaps played minor hockey in the area in the past and were simply coming back to help out with the team.

A.D. was one of those younger guys who came out to help with the team. [ 98 ] Looking back now, M.R. feels that A.D. took advantage of him when he was young and innocent. He testified that not a day goes by that he has not thought about the events and been bothered by them. [ 99 ] In his statement to police, A.D.'s memories of his sexual interactions with M.R. were less than firm.

He initially said he recalled M.R. going to [location omitted] with him on one occasion, that they spent the night in a hotel, that they both got drunk, but that, "it's other than what he's [referring to M.R.] saying and if he says that I have to take the blame for it and I will." [ 100 ] When pressed for his best recollections, A.D. said he remembered them each masturbating each other at the hotel and that they were drinking heavily. A.D. later spoke directly to the camera and apologized to M.R. in a general way, saying: [M.R.] same to you. Um, I I can’t speak enough I knew your family well, I knew you.

I apologize and to your, everybody’s, in your family has stated you’re all victims and you are. Mm . . . Nobody’s a winner, nobody’s ever going to be but I pray that you can start over and have some closure to your situation. [ 101 ] I do accept the evidence of M.R. He was not significantly challenged on his version of events in cross-examination. There are no inconsistencies in his evidence. He was a sincere and forthcoming witness with no apparent motive to lie. He did not embellish his answers or try to fill in any of the shortcomings of his memory.

He was a credible and reliable witness, and I am satisfied that the events he described did in fact occur. [ 102 ] I do not accept A.D.'s vague and imprecise recollections related in his statement and do not have a doubt based upon them. Actus Reus : Has the Crown proven A.D. applied force to M.R. and that the force constitutes an indecent act? [ 103 ] Based upon M.R.'s evidence, I find the Crown has proven that A.D. applied force to M.R. at or near [location omitted], [location omitted], [location omitted], or [location omitted] on the three occasions described, at a time when M.R. was either 14 or 15 years old.

The force he applied constitutes indecent acts. Actus Reus : Has the Crown proven that M.R. did not consent to each of the acts? [ 104 ] The Crown has proven that M.R. was 14 or 15 years old at the time the acts occurred. At that age, M.R. was able to provide consent. When I consider whether the Crown has proven that M.R. did not consent, I must first determine whether the Crown has proven A.D. was in a position of trust or authority toward M.R. at the time. On the evidence adduced, I conclude that this has not been proven. [ 105 ] A.D. would have been approximately age 21 at the time of these events.

M.R. was either 14 or 15. While there is an age difference, M.R. did not describe A.D. as a mentor, authority figure, or anything similar. He described him as a friend and co-worker. To M.R.'s perception, A.D. was one of the younger men who helped out coaching his hockey team. [ 106 ] Overall, M.R.'s evidence left me with the firm and distinct impression that he did not view A.D. as an authority figure in his life, but rather viewed him as a friend. I agree with Mr.

Gustafson's position here that the fact that A.D. drove M.R. places in his vehicle does not establish that he was in a position of trust or authority toward M.R. at the time. [ 107 ] When I consider M.R.'s evidence, I find I cannot be satisfied beyond a reasonable doubt that he did not consent to the three acts complained of. Do not get me wrong, I find M.R. was a very honest witness. Although he felt awkward and uncertain, he acknowledged that in respect of the first act, A.D. did ask for his consent and that he verbally communicated his consent.

There is no evidence that he withdrew that consent. [ 108 ] In respect of the second and third incidents, M.R. could not recall if A.D. asked his consent or whether he verbally communicated his consent. He acknowledged he did not know if he wanted the contact between them to occur. In short, M.R. himself expressed considerable doubt about what was going on in his own mind about whether he did not consent. M.R.'s doubt in his own mind creates a reasonable doubt in mine such that I must find the Crown has not proven M.R. did not consent. [ 109 ] In the result, I find A.D. not guilty of Count 2.

COUNT 3 [ 110 ] Count 3 alleges that A.D. indecently assaulted R.K. at or near [location omitted], British Columbia, between January 1, 1977, and December 31, 1977. The evidence on this count comes from R.K.'s testimony and A.D.'s statement to police.

[ 111 ] R.K. is currently 55 years old. He was born on March 22, 1962. He lived in from approximately the age of two to roughly 18 years of age. He knew A.D. from hockey and other sports. [ 112 ] R.K. started playing hockey at the age of six. He recalled that A.D. would score keep at games and give himself and another friend, a person named B.A., rides home, but did not think that he coached him in any capacity.

His perception at the time was that A.D. was in his mid-twenties, but he did not know for sure. [ 113 ] One summer, when he was between 12 and 15 years old, R.K. attended a two-week hockey school with B.A., who was about a year older than he, on Vancouver Island. It was A.D. who drove them there in his truck and camper, where the three also slept. B.A. and A.D. slept in the camper, while R.K. slept in the cab.

Nothing out of the ordinary occurred during this trip. [ 114 ] R.K. described taking another overnight trip with A.D. during the summer, again at a time when he was between the ages of 12 and 15 years old, this time to [location omitted]. Although not 100 percent sure, R.K. believes the purpose of this trip was for them both to attend an upgrading course for hockey referees.

He could not recall whether this trip was before or after the trip to Vancouver Island. [ 115 ] R.K. testified that A.D. drove them to [location omitted] in his pickup truck and they stayed at a hotel that R.K. believes was called the Starburst at the time. They went swimming one evening. Afterward, they went back to the hotel room where he drank lemon gin and cherry whiskey. As he was not old enough to buy alcohol, R.K. assumes the alcohol was supplied by A.D. [ 116 ] R.K. could not describe his level of intoxication that evening.

After a while, R.K. recalled that “things got carried away” and he found himself with his swim trunks down and A.D.'s mouth on his penis. R.K. was unable to recall the details of how his swim trunks specifically came to be down. He was unable to recall if A.D. said anything to him before he began to perform the sexual act upon him. He recalled that he himself said nothing. He could not recall how long A.D.'s mouth was on his penis, but did recall that after he did this, A.D. asked him at least twice if he would do the same to him.

R.K. remained silent and unmoving and the encounter ended. [ 117 ] They each slept in their own bed in the room and went home the next morning. R.K. was certain that he said nothing to A.D. during the encounter and that he remained mute for the balance of the trip. When asked if he wanted this sexual contact from A.D., R.K. replied, "Absolutely not." [ 118 ] R.K. first disclosed this event on February 7, 2014, when he received a call from an RCMP officer requesting an interview the following Monday. After the phone call, he told his wife what happened.

Until police called him that day, R.K. had successfully put the memory of what happened out of his mind, he said. He agreed that his doing so, along with the passage of time, probably explains why he finds dates and some of the peripheral details hard to remember. [ 119 ] In cross-examination, R.K. was frank that he had very little recollection of certain details, such as who purchased the alcohol, whether there was any conversation in the pool while they were swimming, or whether there was any conversation before his swim trunks came down.

He was firm in his memories of the sexual acts and of A.D. asking him at least twice whether he would do the same acts to him. He was very clear in his recollection that he did not say one word to A.D. during the encounter, and that he did not say anything until he got home the next day. [ 120 ] Overall, I found R.K. to be a credible witness and his evidence reliable. He was not challenged on his version of events. No inconsistencies were revealed in his evidence and no motive to lie exposed.

I find his recollections of what occurred and what he said and did to be reliable, despite some of his memory frailties about some of the details. [ 121 ] This event was a significant one that R.K. would remember, even if buried for many years. R.K. is an adult recalling memories from his early adolescence. Minor details surrounding the event would not lie at the centre of his memories. His inability to recall peripheral details does not undermine the reliability of his evidence. [ 122 ] In A.D.'s statement to police, he said he remembered he and R.K. were together only one time.

He recalled they stayed at a hotel in [location omitted] as they were there, as he recalled it, for the [name omitted] Jamboree hockey event. He remembered the hotel had a swimming pool. He said he guessed that the two were drinking lemon gin. [ 123 ] In respect of the sexual activity, A.D. told Sergeant Carr, "I was probably trying to do fellatio on him, I would assume.

He says that so I'm going to say." A.D. also said he was drinking heavily that night and did not recall actually doing that, but did recall waking up in the same bed and R.K. waking up screaming or hollering or something and running out of the room. A.D. later spoke directly to the camera and apologized to R.K. [ 124 ] A.D.’s recollections were very vague. He did not deny the sexual contact occurred and confirmed some of the details provided by R.K. Nothing in A.D.'s statement regarding R.K. raises any reasonable doubt about R.K.'s version of events. I accept R.K.'s evidence completely.

Actus Reus : Has the Crown proven A.D. applied force to R.K. and that the force constitutes an indecent act? [ 125 ] Based upon R.K.'s evidence, I am satisfied beyond a reasonable doubt the Crown has proven A.D. applied force to R.K. in [location omitted], British Columbia, and the force constitutes an indecent act. [ 126 ] The Crown submits that I ought to find the event occurred when R.K. was 15 years old, giving the most favourable

interpretation of the evidence to A.D., and I do. Accordingly, I find the event occurred during the summer of 1977 at a time when R.K. was 15 years old. Actus Reus : Has the Crown proven that R.K. did not consent to the act?

[ 127 ] As a 15-year-old, R.K. was capable of providing consent. When assessing this issue, I must first determine whether the Crown has proven A.D. was in a position of authority toward R.K. at the time of the event. Based on the evidence adduced, I conclude that the answer to this question is no. [ 128 ] A.D. was approximately 21 or 22 years old at the time of these events. R.K. was 15. R.K., as I found, was a very honest witness. He said he was not a hundred percent sure of how he met A.D.

He did not think that A.D. was his hockey coach in any capacity, but rather was a scorekeeper who gave him and others rides home. At the time, he assumed A.D. was in his mid-twenties, but was not sure. He did not describe A.D. as a mentor or a person he looked up to or authority figure or a person he trusted or anything similar.

Although A.D. took R.K. on two road trips, there is really no evidence about R.K.'s home life, the involvement of R.K.'s parents, or how it came to be that A.D. took him on these road trips. [ 129 ] This particular decision was a difficult one for me, but given the sparsity of the evidence on the point, I conclude the Crown has not proven that A.D. was in a position of authority toward R.K. Again, I agree with Mr. Gustafson that the fact that A.D. gave him rides and travelled with him on its own does not prove A.D. was in a position of authority. [ 130 ] However, that is not the end of the matter.

I do accept the evidence of R.K. and find that he did not consent to the act. Although R.K. cannot remember specifically if anything was said before A.D. put his mouth on his penis, he clearly remembered that he did not say anything when he did. He froze and did not move. He continued to remain silent and unmoving when A.D. asked him to do the same to him. He did not speak the entirety of the rest of the trip.

All of this conduct supports R.K.'s evidence that he did not, in fact, consent. [ 131 ] A.D.'s recollections, such as they are, do not undermine R.K.'s recollections and do not create a reasonable doubt on this issue. In short, nothing in the evidence causes me to doubt R.K.'s evidence that he did not consent, so I find the Crown has proven this element.

Mens rea: Has the Crown proven A.D. intended to apply force to R.K. and that A.D. knew or was being reckless or wilfully blind to R.K.’s lack of consent? [ 132 ] Given the nature of the force A.D. applied to R.K. and the circumstances under which it was applied, I am satisfied the Crown has proven A.D. intended to apply the force that constitutes the indecent act. [ 133 ] I am also satisfied the Crown has proven that A.D. knew R.K. did not consent. A.D. was in his early twenties. R.K. was too young to obtain the alcohol that was consumed that evening; A.D. was not.

From this, I draw the inference it was A.D. who supplied the alcohol they both consumed. A.D. knew he had a drunken, young adolescent boy away from home in his hotel room, a boy who remained unmoving, mute, and unresponsive to what A.D. was doing to him. [ 134 ] In this context, I find that A.D. knew or was, at the very least, reckless or wilfully blind to R.K.'s lack of consent.

A.D.'s general assertion in his statement that he was too intoxicated to remember specifically what happened with R.K. does not create any reasonable doubt in my mind on this issue. [ 135 ] As well, although unnecessary to this conclusion, this conclusion also finds support in A.D.'s general admission in his statement that he absolutely would have realized at the time that what he was doing was wrong. [ 136 ] Having found all of the elements of this offence in this count proven, I find A.D. guilty of Count 3. count 4 [ 137 ] Count 4 charges A.D. with indecently assaulting D.Y. at or near [location omitted], British Columbia, between January 1, 1977, and December 31, 1978.

The evidence pertaining to this count comes from D.Y.'s testimony and A.D.'s statement to police. [ 138 ] D.Y. was born on February 24, 1965, and is currently 52 years old. He was born in [location omitted] but raised in [location omitted]. He was acquainted with A.D. A.D. was his basketball coach, hockey coach, and a friend of D.Y.'s family. [ 139 ] When asked how old he was when A.D. coached his hockey team, D.Y. said, "Anything from 10 years old to 16, I guess, I'm not sure." He did not know how old A.D. was when he coached his hockey team.

He did know that he was older than he was. [ 140 ] D.Y.'s participation in sports included attending out-of-town tournaments. D.Y. testified about an incident that occurred when he attended a weekend baseball tournament in May or June in [location omitted], British Columbia. He believes he was 12 or 13 years old, but did concede that he could have possibly been 14 years old at the time. [ 141 ] A.D. was a coach of his baseball team. A.D. drove him to the tournament in his pickup truck and camper, and the two of them slept in the camper. No one else stayed in the camper with them.

D.Y. was certain that his parents were not present for this trip. [ 142 ] D.Y. described that at some point that evening, he went to sleep in the loft area of A.D.'s camper attached to his truck. When he went to bed, A.D. was outside. D.Y. awoke in the dark to find someone's mouth on his penis performing fellatio on him. He woke up confused, not really knowing what was going on. He recalled that he was laying on his back and that his underwear was around his ankles. The person with his mouth on D.Y.'s penis then changed position and pushed D.Y.'s head down in an attempt to have D.Y. perform oral sex on him.

D.Y. described that he had to “fight him off”. When D.Y. resisted this way, the person stopped. No words were immediately spoken between them. [ 143 ] D.Y. testified that he went to get up, but the person told him he could stay in the top bunk area and that he would sleep on the bottom bed. D.Y. was certain in his evidence that this person was A.D. He did not want A.D. to perform oral sex on him.

[ 144 ] The next morning, they played baseball. They never spoke of what happened, and D.Y. told no one until police inquired a few years ago. After the incident, A.D. continued to coach D.Y. in hockey and baseball. [ 145 ] In cross-examination, D.Y. agreed that A.D. was one of the younger men who used to help out the main, older hockey and baseball coaches. D.Y. was asked in cross-examination about his interactions with A.D. before the night in question. He said their interactions were "just coach stuff".

He agreed that he would have talked to A.D. the evening of the incident, but had no specific recollection of what they talked about. [ 146 ] In cross-examination, it was suggested to him that he may not have known who the person was that did this to him or that he may have just dreamed it.

D.Y. denied both suggestions, even laughing at the latter suggestion and saying he would not put himself through testifying if that were the case and that such a suggestion was “ridiculous”. [ 147 ] D.Y. was uncertain about several of the peripheral details surrounding this event, but was certain about what he woke to and who was doing it to him. [ 148 ] I am satisfied that D.Y. accurately identified A.D. as the person he woke up to performing sexual acts upon him that night. A.D. was the only other person staying with D.Y. in the camper. The space in the camper was not large.

D.Y. was well familiar with A.D. and the sound of his voice. [ 149 ] D.Y. fairly acknowledged not recalling certain details as a result of the passage of time and his desire to bury these events in his memory. I would not expect D.Y. to recall peripheral details of the event that would be of no significance to him at the time.

His inability to recall those peripheral details does not undermine the reliability of his evidence. [ 150 ] Although D.Y. used phrases such as "I guess" or "I believe so" on occasion when describing what happened in examination in chief, I do not find those phrases relate to any uncertainty on D.Y.'s part. Rather, as he explained in cross-examination, he used those phrases or similar phrases on occasion because he was embarrassed about the event, not because he was uncertain. He was firm in his answers. Having observed D.Y. testify, his nervousness and embarrassment were both obvious.

I accept his explanation. [ 151 ] D.Y.'s reaction to the suggestion that he dreamed this event was a very genuine and incredulous denial. When the proposition was put to him, he, as I said, laughed and said, "Yeah, right." He said he was certain he did not dream the event and he asked the rhetorical question, "Why would I come here and do this?" as I have said.

Through the associated gesture with this rhetorical question, I took him to mean that he was referring to testifying in open court about what he clearly and so obviously found, and continues to find, an embarrassing event for him. [ 152 ] In short, I found D.Y. to be a credible and reliable witness and I accept his evidence in its entirety.

That he could not remember peripheral details does not undermine the reliability of his evidence, given that he is now an adult remembering events that occurred when he was an adolescent, and those details would not have been significant to him at the time. [ 153 ] In his statement to police, A.D. initially said he could not remember anything about the event with D.Y. Later, he said he did recall that D.Y. stayed in his camper on a trip to [location omitted] and that D.Y. may have been 14 years old at the time. As he recalled it, he put his hand on D.Y.'s crotch.

D.Y., as he recalled it, said, "no" and turned over, so he left D.Y. alone. A.D. later apologized in the statement by saying: . . . I, loved your family, got along with you guys. Obviously something got the better of me. I never meant to hurt anyone. Um, obviously I did [D.]. Uh so I ask you, to please have some closure and hopefully your life will improve as well. [ 154 ] I do not accept A.D.'s recollections regarding his conduct with D.Y., nor do they raise a reasonable doubt in my mind.

His specific recollections are vague and inconsistent with his various assertions in his statement and then his later heartfelt apology. Actus Reus: Has the Crown proven A.D. applied force to D.Y. and that force constitutes an indecent act? [ 155 ] Based upon the evidence of D.Y., I am satisfied beyond a reasonable doubt that the Crown has proven A.D. applied force to D.Y. at or near [location omitted] and that the force that was applied constitutes an indecent act.

Actus Reus : Has the Crown proven D.Y. did not consent to the act? [ 156 ] The indecent act occurred at a time when D.Y. was between 12 and 14 years of age. Of course, if D.Y. were under the age of 14, he would have been incapable of providing consent and this element would have been proven. However, given his evidence where he conceded he may have been 14 years old, I must approach my analysis on the basis that D.Y. was 14 years old at the time of the act and was therefore capable of providing consent. [ 157 ] I have no difficulty concluding the Crown has proven this element.

D.Y. was asleep when A.D. began to perform the indecent act upon him. As such, it is not possible for him to have consented. When he awoke to find his coach performing fellatio on him, he froze and refused to reciprocate any sexual activity. In these circumstances, there can be no doubt that D.Y., as he testified, did not consent. Nothing in the evidence causes me to doubt D.Y.'s evidence that he did not consent. [ 158 ] Although unnecessary to the analysis, if required, I would conclude that A.D. was in a position of authority to D.Y. at the time.

A.D., as I have outlined, was his coach and entrusted with his care this particular weekend. D.Y.'s parents were not there. D.Y. was in a position of vulnerability. In all of the circumstances, A.D. had an elevated status of both trust and authority over D.Y., a status that gave his parents reason to have faith in him and trust in him to allow him to spend time with their son away from home. Again not determinative, but this factor would only serve to further support my conclusion that the Crown has proven this element.

Mens rea : Has the Crown proven A.D. intended to apply force to D.Y. and that A.D. knew or was being reckless or wilfully blind to D.Y.’s lack of consent? [ 159 ] Based upon the nature of the act and the circumstances under which it occurred, I easily conclude the force A.D. applied to D.Y. was intentional. I also easily conclude the Crown has proven that A.D. knew D.Y. was not consenting. A.D. found D.Y., a young man he knew well, who he coached, and for whom he was caring that weekend, asleep in the camper they shared. He found him alone. He began to perform a sexual act upon him while he was sleeping.

There simply can be no doubt that A.D. knew D.Y. was not consenting. Nothing in the evidence causes me any doubt on this issue. [ 160 ] Having found the Crown has proven all elements of this offence charged beyond a reasonable doubt, I find A.D. guilty of Count 4. COUNT 5 [ 161 ] Count 5 charges A.D. with indecently assaulting A.T. near [location omitted], British Columbia, between January 1, 1979, and December 31, 1979. The evidence pertaining to this count comes from A.T.'s testimony and A.D.'s statement to police. [ 162 ] A.T. was born on July 6, 1963. He is currently 54 years old.

He has lived in [location omitted] since 1971 and continues to live there today. He is S.Z.'s first cousin. A.T. became acquainted with A.D. at a time when A.T. was in his early teens. He was unsure of A.D.'s precise age, but believed him to be about five or 10 years older than he. He knew A.D. as a family friend, a person involved in coaching A.T.'s baseball and hockey teams and when A.T. was about 14 or 15 years old, he knew him as an auxiliary police officer in the [location omitted] RCMP detachment.

He recalled that A.D. did things with the family “like one of the big brothers”. [ 163 ] A.T. described A.D. coaching or helping to coach his various hockey and baseball teams, keeping score, and doing some refereeing. He recalled A.D. travelling to tournaments with the hockey teams. As a family friend, he recalled him helping the Z. family rebuild their home lost to fire.

He recalled A.D. joining the family on family camping trips. [ 164 ] A.T. testified about a particular camping trip at a location on [location omitted] with his family when he was 16 years old. [location omitted] is near the community of [location omitted]. Among the 20-plus people at their campsite were A.T.’s parents, A.T.'s siblings, S.Z., various aunts and uncles, and A.D. A.D. brought his truck and camper to sleep in. [ 165 ] A.T. was very emotional when he testified. He described that one evening during this particular camping trip, he drank alcohol to the point that he was highly intoxicated.

He explained that as a 16-year-old, he drank whatever alcohol he could get his hands on. He believes the alcohol came from A.D., but has no specific memory of this. He believes this, because he testified that A.D. would “bootleg” for members of the teams all the time. [ 166 ] A.T. recalled ending up in A.D.'s camper that evening, but could not recall how it was that he came to be there.

He had a sense that A.D. would have invited him, but had no real recollection. [ 167 ] When A.T. was first asked in examination in chief to relay what happened in the camper that evening, he said “one thing led to another” and that he left A.D.'s camper because he was repulsed about what had happened inside and ended up sleeping that night on the tailgate of his parents' vehicle. When asked what happened that repulsed him, AT. testified that while he and A.D. were in the top bunk or sleeping area of A.D.'s camper, they each performed oral sex upon one another.

He described that A.D. also tried to penetrate his anus with his penis, but was unsuccessful because A.T. got up and left. [ 168 ] A.T. could not recall how the sexual contact between them was initiated, other than they were laying on the bed in the loft area side by side, and that A.D. was grabbing A.T.'s erect penis. He could not recall if A.D. asked him if he could perform fellatio on him. He could not recall how his clothes came off. He could not recall any conversation between them. He did recall that A.D. ejaculated in his mouth and that he spat out the ejaculate.

He recalled that he ejaculated when A.D. performed fellatio on him. [ 169 ] A.T. was asked if he wanted to have A.D. perform fellatio on him. He said, "No, I was 16 and I was ripped," a reference to A.T.'s high level of intoxication. He was also asked whether he wanted to have anal sex with A.D. and he replied, "Obviously not because I left." [ 170 ] The first thing A.T. remembered in the morning was waking up on the tailgate of his parents' vehicle, vomiting, and feeling very ashamed. He told no one about what happened until police came to interview him many years later.

He said he never told his parents about what happened, because he was concerned about homophobic slurs being levelled at him by his father. [ 171 ] As a result of what occurred, A.T. experienced lifelong negative emotional repercussions that he described.

He put a positive turn on these emotions by explaining how his experiences have affected his own parenting skills, in that he decided to coach his children's hockey and ball teams in order to protect them and their friends from a similar experience. [ 172 ] In cross-examination, A.T. agreed that he was not forced by A.D. to do these things, in the sense that A.D. "did not tie me up and rape me", but rather explained that it was something that he did not want. He felt he probably could have left. He did leave, but a little too late.

At the time, he went along with things but immediately felt negatively about it. [ 173 ] In his statement to police, A.D. remembered some details about this event. He said that he remembered going camping with A.T. and that they were all drinking with the families there. He specifically remembered everyone drinking a drink called “Yukaflux”, which he said is a large concoction of fruit, vodka, and other liquors that was shared by everyone. With respect to the event, A.D. recalled that he crawled onto the top bunk of the camper with A.T., and that it was A.T. that started fondling him.

He recalled that he then reciprocated and they each performed fellatio on the other.

[ 174 ] The next morning, A.D. was also quite ill from alcohol consumption. He later apologized in a general sense to A.T. in his statement. [ 175 ] A.T. was an honest witness. He was candid about the limits of his memory, which were clearly affected by the passage of time and by his high level of intoxication on that particular night. [ 176 ] Despite his high levels of emotional upset in relating these events, A.T. was not prone to exaggeration. He did not attempt to fill in any memory blanks, which were many. There were no inconsistencies in what he did recall.

In short, there was nothing that would cause me to doubt his credibility. To the extent of his limited memory that night, there is nothing that would cause me to doubt the reliability of some of those memories. Actus Reus: Has the Crown proven A.D. applied force to A.T. and that the force constitutes an indecent act? [ 177 ] On the basis of A.T.'s evidence, I do conclude the Crown has proven A.D. applied force to A.T. at or near [location omitted], in the summer of 1979, at a time when A.T. was 16 years old. I find the force constitutes an indecent act.

Actus Reus : Has the Crown proven that A.T. did not consent to the act? [ 178 ] It is upon this element of the offence that Mr. Gustafson submits that the Crown's proof fails. He argues that A.T.'s memories are too frail, particularly about the conversations and activities leading up to and during the sexual acts, including who may have initiated the contact, in order for me to be satisfied beyond a reasonable doubt that A.T. did not consent. [ 179 ] Mr. Gustafson submits that the language used by A.T., such as, "one thing led to another", infers consensual activity.

He argues that A.T.'s inability to recall who initiated the sexual contact should, on its own, create a reasonable doubt here. [ 180 ] A.T., as I say, was 16 years old at the time of the event. A.D. would have been approximately 24. As he was over the age of 14, A.T. was able to provide consent. In assessing whether the Crown has proven that A.T. did not consent, I must first consider whether the Crown has proven that A.D. was in a position of authority in relation to A.T. at the time of the event. I conclude he was not. [ 181 ] A.D. was about eight years older than A.T.

He was a family friend who did coach A.T. in baseball and hockey over several years. A.T. was aware of A.D. as an auxiliary RCMP officer at the time, but saw him as someone who bootlegged for him and others. A.T. did not describe A.D. in terms of a mentor or authority figure or anything similar. I got the distinct impression from A.T.'s evidence that he viewed A.D. as more of an older friend who got them alcohol from time to time. [ 182 ] When I consider whether the Crown has proven the absence of consent, I must admit I struggled with this decision.

A.T. is a truthful witness, but unfortunately has very little memory of what occurred. In cross-examination, he conceded that he could not begin to recall many aspects of what occurred. He could not recall how he came to be in A.D.'s trailer. He knew that, although one thing led to another, he could not recall how the sexual activity got started, who initiated it. He conceded that at the time he went along with things, but after the fact thought negatively about it.

All he knew is that he probably could have left the camper earlier than he did. [ 183 ] So while I do not doubt A.T.'s honesty, his evidence on this issue is just simply too vague and affected by the passage of time to allow me to conclude that his lack of consent has been proven to the very high standard that is required, that is proof beyond a reasonable doubt. [ 184 ] I am supported in this conclusion and am mindful of the evidence from A.D.'s statement about A.T. A.D. remembered some details that suggest A.T. initiated the sexual contact.

A.T., as a result of his memory frailties, is unable to deny that this could be the case. So while I generally do find A.D.'s statement to police to be unreliable and quite vague, A.T.'s inability to deny that he may have initiated the sexual contact in the totality of the circumstances of this count alone creates reasonable doubt in my mind on this element of the offence. [ 185 ] As well, I agree with Mr.

Gustafson, in the circumstances of A.T.'s memory frailties, it would also be very difficult for me to fairly assess whether A.D. knew A.T. did not consent. [ 186 ] Overall, it would be, I find, unsafe to rely on A.T.'s evidence to ground a conviction here and accordingly I find A.D. not guilty in respect of Count 5. COUNT 6 [ 187 ] Count 6 charges A.D. with indecently assaulting B.M. at or near [location omitted] between January 1, 1979, and December 31, 1979. The evidence pertaining to this count comes from B.M.’s testimony and A.D.'s statement to police. [ 188 ] B.M. was born on September 24, 1966.

At the time he testified, he was 50 years old. B.M. was born in [location omitted], but he and his siblings moved to [location omitted] when he was five years old to live with his grandparents. B.M.'s grandmother raised these four young grandchildren because B.M.'s father was in prison for murdering his mother. [ 189 ] B.M. described growing up in such circumstances generally as quite difficult. His grandmother had her hands full with four young children, and he had no father figure in his life while he gre

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