R. v. W.R., 2017 ONCJ 772

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. W.R. , 2017 ONCJ 772 DATE: 2017·09·28 COURT FILE No.: 16-0867 BETWEEN: HER MAJESTY THE QUEEN — AND — MR. W.R. Before Justice N.S. Kastner Heard on Jan. 12, 13, March 27, 28, June 16, 29, Sept. 28, 2017 Written submissions filed by the Crown April 20, 2017 Written submissions filed by the Defence May 26, 2017 Reply oral submissions heard on June 29, 2017 Reasons for Judgment released on September 28, 2017 Ms. C. Valarezo............................................................... counsel for the Crown

Mr. B. Bytensky......................................................... counsel for the defendant Judgment Kastner J.: [1] The defendant is charged with five Criminal Code allegations: The first two charges relate to his alleged sexual misconduct in aperiod of time between January 1, 1995 and December 31, 2000 between his stepson and himself.

He is charged with sexual interferencewith a person under fourteen years of age; and sexual assault. [2] He is further charged that at a time between September 1, 2001 and December 31, 2001 that he sexually assaulted his stepson. [3] The latter two charges relate to his alleged sexual misconduct in the time frame between January 1, 2001 and December 31,2010 between his son and himself. He is charged with sexual interference with a person under fourteen years of age; and sexual assault. [4] The matter was reported to police in August 2015, and statements were given by a number of witnesses over the next month.

Mr.R was arrested shortly after. 1: OVERVIEW [5] This is a credibility case. Both Mr. Bytensky and Ms. Valarezo correctly submit that the main issue in this case is the credibilityand reliability of the two complainants, and the application of the burden of proof. The defendant did not testify in this case, thereforecounsel submit the application of the first and second branch of R. v. W. (D.), (SCC), [1991] S.C.J.

No. 26, is not atissue. [6] There are also several evidentiary rulings necessary[1], and some “technicalities”[2] concerning the various offences. [7] There are a number of questions before the Court, specifically whether I am satisfied beyond a reasonable doubt: a. That an assault took place by the defendant in each of the time frames alleged[3]; b. That the assault(

s) by the defendant which took place violated the sexual integrity of the complainant(s); c. That the complainants were under fourteen years of age when the alleged sexual interference took place; d. That the complainants did not consent to the touching, or that consent, if any, was vitiated by their age at the time of the incidents;and e. That the application of force was intentional. [8] The Crown called both complainants in an effort to prove its case. It also relies upon any agreed facts, the evidence of boys’mother, the stepson’s fiancée, and the eldest son of the Defendant.

Records from A.B.’s high school and Land Registry documents arefiled on consent. The ultimate question on each allegation is whether the complainants’ evidence, in conjunction with the whole of theother evidence, meets the standard of proof required of the Crown in a criminal case with respect to the offence(

s) charged, or any ofthem, beyond a reasonable doubt, or falls short of that standard. [9] The defence proposes to admit the evidence of one police witness about a prior incident in 2005 alleged to have occurredbetween Mr. W.R. and A.B. which was reported to police.

The Crown opposes on the basis such evidence infringes the collateral factsrule, and ought not to be admitted. [10] Furthermore, the Crown argues that each count should be considered both separately and in relation to all counts as similar act.This motion is contested. [11] Both counsel made extensive[4] and thorough written submissions after the evidence was completed on all issues in the case.The Court is indebted to counsel for these submissions, which were supplemented by oral argument. 2: INTRODUCTION

[ 12 ] W.R. is accused of a number of sex related charges. He is the step-father of the first complainant A.B. and the biological father of the second complainant C.D. [5] His former wife G.H. is the mother of both sons, the complainants. He is also the father of an older son, E.F., who is born to an earlier relationship. [ 13 ] E.F. was born on […], 1986. A.B. was born on […], 1987. C.D. was born on […], 1995. [ 14 ] The Defendant met G.H. in approximately 1988 or 1989.

G.H. had immigrated to Canada in the summer of 1988 from Guatemala and settled in Kingston Ontario with her first husband, who was from El Salvador [6] . They were part of a Catholic Program for settling immigrants, which directed them to Kingston. They had a small son A.B., who was just over a year old at that time. The Defendant also had immigrated to Canada, and had a previous marital relationship, which produced a son E.F. [ 15 ] G.H. was abused by her then husband, and they separated. In time, G.H. left her husband and began a committed relationship with Mr. W.R. A.B. also went to live with them.

They moved to the Etobicoke and Mississauga area. It appears that the Defendant wanted to sever the relationship between A.B. and his biological father. He took away a cell phone A.B. had with his biological father’s telephone number stored, and all contact was lost with G.H.’s first husband. [ 16 ] G.H. and the Defendant married in Guatemala in 1993. [ 17 ] The Defendant and G.H. had a number of residences in Mississauga, starting with an apartment with friends, and including a rental apartment. They lived in a house on T[…] Drive during the time period in question.

The house purchase was made on October 11, 2001 [7] , and it was sold by them on April 19, 2007. Thereafter they moved to a smaller house nearby on T[…] Crescent, and Mr. W.R. moved out a short time later. [ 18 ] G.H. estimated that her relationship with the Defendant ended six to eight years prior to trial, which would be approximately 2008 to 2010. There was another woman. She stated that the Defendant told her he divorced her in 2002 or 2006, and had given her papers to sign, although she had never been to Court or seen a lawyer. [ 19 ] E.F. was an infrequent visitor to the W.R. home at first.

He was there sometimes on weekends, or alternate weekends, but G.H. remained his primary caregiver at those times, as the Defendant relegated all this to her. E.F. did not reside with his father until his late teens (aged 16 to 18 years). E.F. was closer to A.B. in age, although older, and close to him when together playing as children. They were not close as teenagers. Each had different groups of friends. A.B. kept more to himself. E.F. did however help A.B. to get part-time work. They remain there for each other. [ 20 ] C.D. is the youngest child, born to G.H. and the Defendant.

Although initially unwanted by Mr. W.R. [8] , he was favoured in the household as a child. As he got older there were numerous conflicts between father and son. [ 21 ] According to his mother, A.B. was always sad as a child, and asked her “Mommy, why is it that W.R. does not love me?” [ 22 ] G.H. testified that Mr. W.R. did not want either A.B. or E.F. [ 23 ] A number of years after the allegations, disclosure was made to police in August of 2015, and charges were eventually laid. On May 12, 2016, the Defendant elected to have a trial in the Superior Court and have a preliminary hearing.

He re-elected to have a trial in the Ontario Court of Justice on January 12, 2017, the first day of the trial. [ 24 ] The defence called no evidence following the Crown’s case. Mr. Bytensky did introduce, during submissions, proof of the date of purchase of the T[…] Drive residence of the Defendant and G.H. Although initially opposed to the introduction of the document, the Crown has agreed to the date of purchase as an admitted fact. [ 25 ] The Defence also sought to admit the evidence of Police Constable Fowler from an incident in 2005, in order to impeach A.B. [ 26 ] The Defendant did not testify.

No other viva voce evidence was called by the defence. The Court draws no adverse inference from the fact the Defendant did not testify, which is his constitutional right. He is presumed innocent, unless and until the Crown proves his guilt beyond a reasonable doubt. The onus of proof never shifts to the Defendant. 3: ISSUES [ 27 ] The main issue in this case is credibility.

Both counsel agreed at the outset of the case that this was the real issue. [ 28 ] As the case unfolded, a number of other issues were argued, including the admissibility of similar act evidence between the counts; the admissibility of so-called collateral evidence; whether late notice defence of alibi arose; and whether the Court ought to amend the information to conform to the evidence as to the dates averred.

I will deal with these secondary issues as they were introduced at the trial. [ 29 ] The Crown says the uncontradicted evidence of the two young men involved here supports a conviction on all counts, or proof beyond a reasonable doubt. Ms.

Valarezo, Crown counsel, concedes however that a conviction on Count 1 relies on proof beyond a reasonable doubt of the age of the complainant at the time of the incident, and if the evidence establishes the complainant was older than the statutory age, then an acquittal should be registered on that count. [ 30 ] The position of the defence is that the Crown has failed to prove the credibility and/or reliability of the main witnesses beyond a reasonable doubt. The defence further asserts that the allegations of A.B. are fabrications.

He also argues that C.D. is mistaken as to any sexual component to the incident he relates. The defence submits that both young men are motivated to lie, to prevent their parents from reconciling; and because they hate the Defendant. Even if the complainants were generally credible, the defence argues that the

contradictions and inconsistencies in the evidence render it so unreliable as to create a reasonable doubt as to his guilt. Furthermore, the defence relies on the doctrine of de minimis not curat lex in the event the Court finds an assault simpliciter has been proven beyond a reasonable doubt in the wrestling incident, or the soccer shirt incident. 4: EVIDENCE [ 31 ] The evidence called at trial is best categorized into the following areas of discussion. An overview is provided in each category.

The analysis considers the evidence in more depth, and the written submissions of each counsel as to their positions on the facts and inferences to be drawn provide greater detail. 4.1: Violence in the Home [ 32 ] On all of the evidence heard, Mr. W.R. was an abusive spouse and father on many occasions. This is not to say that was his only disposition, as G.H. spoke of such happy occasions as taking them on fishing trips, and a good relationship with C.D. as a small child. All the sons and G.H. spoke of his verbal abuse, physical aggression, drunken rants and neglect.

He was said to be a regular consumer of alcohol to excess and cocaine. [ 33 ] G.H. testified that he would fight and be mean to E.F. and A.B., but be very good with C.D. He was “always in a fighting mood”. He used corporal punishment, and hit the children, especially when he was drinking. [ 34 ] C.D. recalled a time he had a nightmare and his mother came to calm him down. His father came in and dragged his mother back to his room, locked the door, and he could hear her crying.

He said he would constantly beat up his brothers just to see if they would cry. [ 35 ] Both Crown and Defence counsel did not argue against the admissibility of other acts of discreditable conduct disclosed by the evidence of Mr. W.R.’s physical and verbal abuse of his spouse and children. The Crown relies on this evidence to establish the atmosphere in the home, and its effect on disclosure of the incidents. The Defence relies on this evidence to explain animus against the Defendant or provide the motive to fabricate. The Court limits the use to be made of this evidence.

It is not evidence of propensity, or evidence which makes the incidents more probable. [ 36 ] The bad character evidence is not contradicted, but the Court does not draw any inference that because of his disposition and addictions, that he is more likely to have committed the offences charged. It is not evidence of propensity, and it does not reverse the onus of proof on the Crown. 4.2: Collateral Evidence [ 37 ] One of the aforementioned allegations of other violence within the home, is a prior incident related of Mr. W.R. chasing A.B. in the home with a machete.

A.B. testified that when he was approximately fourteen or fifteen years old [9] , the Defendant came at him with a machete. The Defendant was arguing, and his older brother E.F. had to step in between them and push him back into his room. He remembered leaving the house, and his older brother told him later police had been there. [ 38 ] A.B. said this happened at a time he was using drugs and did not recall speaking to police.

When asked why he did not tell the police about this incident, he said that he felt it might make things worse and that he didn’t know why he did not, although he was scared and confused. [ 39 ] G.H. corroborates A.B. She testified that she called police one time because W[…] [10] was threatening A.B. with a machete. Before she called the police, she told A.B. to run away because W[…] was after him with the machete. She was worried about her son’s safety. [ 40 ] In cross-examination G. H. denied that A.B. was being aggressive to the Defendant at the time, “it was the other way around, W[…] was shoving”.

Although she was there when A.B. did return the officer’s call, she only heard her son’s side of the conversation. She did not hear her son say it was a mutual shoving match, and the truth was that W[…] was shoving her son. [ 41 ] She said her husband pleaded with her to not lay any charges against him. The police called for A.B. three times to see if he was doing okay. The Defendant said to A.B., “please little A, do not lay any charges against me”. A.B. agreed and said he would not do that. [ 42 ] It is clear that in 2005, the Defendant had asked his wife and stepson not to bring any charges against him.

No charges were laid after the police closed the investigation. [ 43 ] Defence counsel cross-examined A.B. about what he had told police in that investigation twelve years before the trial. He did not remember what he had said. [ 44 ] Mr. Bytensky seeks to call Police Constable Fowler to refute the aggravating circumstances of this allegation, or to throw doubt upon it. He also seeks to impugn the witness’ credibility, by establishing a “lie” to the police. [ 45 ] I heard the brief evidence from the officer regarding the 2005 report in a voir dire .

[46] As a general rule, one cannot impugn a witness’ credibility by contradicting the witness on matters which are collateral even in acase where the ‘core’ issue is credibility. A party may not, in general, impeach the credit of his opponent’s witness by calling witnessesto contradict him as to matters of credit or other collateral matters and his answers thereon will be conclusive.

In fact, the test todetermine whether a matter is collateral is a consideration of whether, absent the evidence of the witness, the party seeking to impeachwould be allowed to call that evidence on their own in order to prove that evidence[11]. [47] In other words, the Crown submits that A.B.’s evidence in respect of his recollection of the interaction with Constable Fowler isconclusive.

Even if A.B. had not been questioned about this, the Crown states that the defence would not have been permitted to callConstable Fowler on this issue because it would not have been relevant to his ability to make full answer and defence or to raise areasonable doubt in relation to any of the elements of the offences before the Court. [48] The Supreme Court of Canada recently reversed a decision of the Newfoundland Court of Appeal in R. v. S.B[12]. One of theissues was the collateral facts rule.

The Court adopted the reasons of the dissenting Justice of the Court of Appeal[13]. [49] The appellate decision had emphasized that the focus of the collateral facts rule is to distinguish between evidence that isrelevant (evidence that the accused would be permitted to call as part of his case) as opposed to evidence that is not relevant; andtherefore collateral.

By definition, what is collateral is not relevant and what is relevant is not collateral. [50] There is a general rule that answers given by a witness to questions put to him on cross-examination concerning collateral factsare treated as final, and cannot be contradicted by extrinsic evidence. Without such a rule, there is a danger that litigation will otherwisebe prolonged and become sidetracked and involved in numerous subsidiary issues.

The rule does not permit the use of extrinsic evidenceto contradict a witness who has made a statement in cross-examination which is relevant to the substantive issue[14]. [51] In the criminal context, terms such as ‘substantive issue’ and ‘an issue arising in the pleadings or indictment’ refer to evidencethat is relevant to an element of the offence such as identity. It does not refer to credibility, which in many cases must be assessed indeciding a ‘substantive issue’ or ‘an issue arising in the pleadings or indictment’.

For greater clarity, credibility is not a ‘substantiveissue’ nor is it ‘an issue arising in the pleadings or indictment’[15]. [52] In fact, credibility is almost always ‘in issue’ in cases of this nature. This “does not shield the evidence being tendered in thiscase from the collateral facts rule”.

By characterizing the evidence in this manner, the accused is confusing what is at issue (i.e. did hecommit the offences as charged) and what is relevant (i.e. has identity been proven) with the process of assessing credibility”[16]. [53] I am also mindful of the recent decision in the Ontario Court of Appeal of C.F.[17], where Mr. Justice Huscroft distinguishesbetween the collateral fact rule which prohibits calling evidence solely to contradict a witness on a collateral fact, from the impact uponthe scope of cross-examination.

The rule seeks to preserve trial efficiency and avoid confusion and distraction by preventing thelitigation of issues that have only marginal relevance. [54] While the “mouse incident” in that case involved collateral facts, as the rule is traditionally understood, in the circumstances ofthat case, the collateral fact rule was not absolute: As the Supreme Court recognized in R. v. R. (D.), (SCC), [1996] 2 SCR 291, evidence that determines a witness’scredibility may escape the exclusionary reach of the collateral fact rule if credibility is central to the case against an accused.(at para.60) [55] Ms.

Valarezo submits that the evidence being sought to be introduced at this trial is wholly collateral. It is extrinsic evidencethat is of negligible assistance to the Court in determining the real issues of the case; whether the incidents occurred as alleged. Further,she argues that it neither assists the Court in determining a substantive issue nor does it arise from the pleadings or information. It issimply an attempt by the accused to wholly and exclusively attack the credibility of A.B. and is therefore irrelevant in assisting the Courtto determine the issue of guilt. [56] Mr.

Bytensky submits that this evidence demonstrates the “willingness of A.B. to lie to police when it suited his objectives at thetime”, and is behaviour “inconsistent with prior sexual victimization” by the Defendant. [57] Like the “mouse incident” in C.F., the machete incident evidence is not aimed at creating confusion. It is limited to a specificallegation made by A.B. against the accused. It does not unduly lengthen or complicate the proceedings.

It does not introduce “asideshow of ancillary issues”[18] that have to be resolved. [58] The evidence of the alleged machete attack is relevant to credibility, as the Defence argues that it is capable of either proving thatA.B. lied to the police in 2005, if the incident truly happened as he now testifies; or proving that A.B. lied at trial by enlarging hisevidence by adding an allegation of a violent attack by the Defendant, after the time of the allegations of sexual violence and before thereport to police, in order to smear the Defendant. [59] The proposed evidence relates to the same father/son relationship between A.B. and the Defendant, likely after the time period ofthe alleged incident, but while A.B. was still in high school living in the same home.

It relates to a discrete incident, which otherwitnesses were questioned on. I will admit this evidence from the officer. [60] I do not find this evidence in any way derogates from A.B.’s narrative of earlier sexual victimization by the Defendant. These arediscrete events. There are apparently years between the events. The December 2005 incident was at a time when A.B. was older, larger,less naïve and better able to look out for himself. It occurred when everyone was at home and awake.

It occurred when his mother andolder brother reacted to protect him. [61] The delay in disclosure, or non-disclosure to police at that time, is raised as an issue. Mr. Bytensky agrees that Supreme Court ofCanada in R. v. D.D.[19] emphasizes that, In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of

a particular case. A delay in disclosure standing alone, will never give rise to an adverse inference against the credibility of the complainant. [ 62 ] Even without a ruling on this collateral evidence issue, there is no dispute that A.B. did not tell police about the wrestling and anal intercourse incidents when they were investigating the later complaint. It is therefore one circumstance to consider on the whole of the evidence in evaluating the strength of the Crown’s case. [ 63 ] I find this evidence admissible as relevant to an issue at trial, credibility.

It may also be relevant to whether there is an animus toward Mr. W.R., or a pattern of false complaints. It is not so much a “general attack” on credibility; rather, it is said to be repetitive lies to police with regard to the same person. In weighing its prejudicial effect, as this is a single judge trial, I am capable of weighing it with all of the other evidence and to not give undue effect to it. The situation may well be different with a jury. [ 64 ] Even if I err by admitting it, it has very little probative effect. The officer was a relatively new hire when called to the residence in 2005.

A.B. was not at home when the matter was investigated following a hysterical 911 call from G.H. and a hang up, or dead line. Part of her dispatch was “hubby hung up, he violent”. The officer was told E.F. was present and stepped between A.B. and the Defendant to separate them. [ 65 ] I do not find this evidence in any way derogates from his narrative of earlier sexual victimization by the Defendant. These are discrete events. There are apparently years between the events. The December 2005 incident was at a time when A.B. was older, larger, less naïve and better able to look out for himself.

It occurred when everyone was at home and awake. It occurred when his mother and older brother reacted to protect him. [ 66 ] A.B. is corroborated by E.F. and G.H., in part, about the circumstances of Mr. W.R. chasing him with a machete, and the intervention of other family members, allowing him to run. [ 67 ] I accept the evidence of G.H. that the Defendant had asked A.B. not to report him, “please little A., don’t lay any charges on me”. [ 68 ] I cannot be satisfied on Police Constable Elaine Fowler’s evidence as to the actual words of A.B. when she finally reached him several days later by telephone.

She had no notes in her notebook, but wrote an addendum to the occurrence generated a few days earlier. She was unable to say who had called whom. She did not recall if the words on the computer occurrence were hers or A.B.’s. They were not verbatim. [ 69 ] She wrote the incident off as a “mutual shoving match” with no weapons. It is unclear if this was a script provided by the Defendant, or G.H.; if it was a synopsis of the statements of the family; a statement by A.B.; or a conclusion by the officer in her words.

The evidence is just too vague to have much probative value. [ 70 ] The Court cannot find that A.B. blatantly lied to the police, or if he just omitted the most incriminating features of the incident. If he did not tell the police the truth, it was at the behest of the Defendant, and his pleading. It cannot benefit him now at this trial in an attempt to discredit A.B., who yielded to the Defendant’s plea to save himself. No doubt A.B. was conflicted, particularly because his mother was still in a relationship with Mr.

W.R., and she did not want her husband arrested, or yielded to him. [ 71 ] I find that A.B. did confirm his well-being to Police Constable Fowler about four days after the December 2005 machete incident, and the officer “wrote off” the occurrence. It is likely the incident happened as the witnesses related. It is consistent with the nature of the family relationship at that time, the pressure to not get the Defendant into trouble, and A.B.’s quiet and insular nature, keeping his hurt to himself.

It is corroborated by other witnesses to the event. 4.3: Wrestling Incident [ 72 ] At the T[…] Drive house, A.B. testified he was wrestling with his little brother C.D. on his bed, and the Defendant decided to come in and join the wrestling. He had his little brother were “head locking each other”. [ 73 ] He believed it was summer because the windows and blinds were open. His mother was working.

It was likely after school. [ 74 ] As they were wrestling he felt the Defendant “grab my butt in a very weird way, so I just got up and left the room”. [ 75 ] He did not think anything of his stepfather’s participation until he was “groped”. [ 76 ] At the time, he had C.D. pinned in a headlock. Mr. W.R. came from behind. A.B. did not see his position because he was pinning his younger brother down. He felt the Defendant’s hand touching his buttock area. It was a firm grab, not a simple hand brushing up by accident. [ 77 ] The touching was very short, probably two seconds.

A.B. did not say anything to him, but slid off the bed. [ 78 ] When he left, the Defendant remained on the bed wrestling with C.D. [ 79 ] He did not tell his mother because he lacked the confidence, and did not feel she would believe him. [ 80 ] He agreed with counsel in cross-examination that he thought very little of it when it happened, because it did not make sense to him. A.B. now believes it to be sexual because of what W[…] did to him two or three months later.

4.4: Anal Intercourse Allegation [ 81 ] A.B. testified that while he still was in Grade 9, likely the fall season, with the window still open, and not so cold enough to shut the windows, this incident happened when he was asleep. [ 82 ] He wore elastic waist boxer shorts, and covered himself with a loose blanket. [ 83 ] It was early morning and the sun was just coming out. It was not bright, but not dark. Everyone was sleeping. [ 84 ] A.B. was a heavy sleeper. His room was the closest to the highway, at the back of the house.

Even the noise from Highway 401 did not wake him. [ 85 ] He remembered waking up to a noise, and “did not know if it was him exhaling”. He replicated a noise like he had heard that night/morning in the courtroom, “huh...huh...huh” [20] . He did not know if the noise was coming from Mr. W.R. or himself. He could feel his body weight. His stepfather was on top of him thrusting back and forth. [ 86 ] He could feel that he was penetrated but not the depth of it. [ 87 ] He could not actually see him until he got up. The Defendant jumped off when he realized A.B.’s eyes were blinking open.

A.B. did not know what was going on. [ 88 ] The Defendant stood at the doorway to the bedroom for three to five seconds to see if A.B. would fall asleep or not. He ran to his bedroom, and A.B. ran and followed him there, opened the closed door, and observed him pretending to be asleep beside his sleeping wife. [ 89 ] A.B. then went to the washroom and realized there was blood from his rectum when he wiped himself. He realized there was blood also down his leg. [ 90 ] He was sore. He said the blood was “not cups or anything” but enough that the toilet tissue was soaked.

The soreness lasted a few days, and he could see some blood for a few days either mixed in with feces, or falling out after. It was just smears here and there when he wiped, but “not like it was in the beginning”. [ 91 ] He agreed he told the police he was “covered in blood”, but it was confined to his buttocks and leg. It was not on his sheets but the area he had been penetrated was covered in blood when he noticed.

Although the statement appeared not to mention blood on tissue, to be fair, there were many inaudible sentences and phrases in the police statement. [ 92 ] He returned to his own room and “mentally broke down”, because he had no one to go to. He did not think anyone would believe him, because whatever he said did not matter to them. He also felt the Defendant was trying to get him to run away. He felt he needed to stay to protect his mother and little brother. [ 93 ] He also had nowhere to go. His father had been taken from him, and his mother’s family was all in Guatemala.

He would be homeless. [ 94 ] He did not go to a doctor, because he did not know where to go or who to go to. He had asthma so he did go to a doctor every two months for a prescription with his mother. [ 95 ] He did not tell E.F. because he was not comfortable enough to tell him. They did talk but he was not close in that sense. [ 96 ] He described both his mother and the Defendant as heavy alcoholics.

He did not have the confidence to tell his mother. [ 97 ] In cross-examination, A.B. said he was confident this happened in his first year of high school, and when he lived on T[…] Drive, in the same house, after the wrestling incident. 4.5: Soccer Shirt Incident [ 98 ] Physical and verbal abuse were more acute on the weekends when the Defendant was drinking. C.D. said that on a weekend evening when he was in Grade One, when company was present, one of his father’s friends said that he liked C.D.’s soccer shirt. [ 99 ] Mr. W.R. was drunk. He told C.D. to take off his shirt.

The child was uncomfortable and said “no”. His father intended to give the shirt to the adult friend. [ 100 ] The Defendant grabbed C.D. and took him to the washroom on the main floor, and shut the door. [ 101 ] C.D. stated he was wearing shorts with a draw string, and no underwear. [ 102 ] He did not want to tell the Court what happened as it was hard. He described his father touching him under his shorts in the “private area” with his hands, “kind of like fondled”.

[ 103 ] When asked where on his body he was touched, he said “my penis, I guess”, and “just feeling my body below the waist”. [ 104 ] The child did not say anything, but just wanted to get out. [ 105 ] C.D. remembered his mother near the washroom when he got out, and he went straight to her as she came out of the kitchen toward the living room. He did not talk to her, but remembers wanting to hug her.

He felt that his mother suffered a lot and had enough stress, so he did not want to tell her what happened. [ 106 ] The Defendant gave the shirt to his friend, and his wife yelled at him. [ 107 ] He did not tell, because he felt no one wanted to talk about these things, and he thought this was a weakness and did not want to feel that way again. [ 108 ] He did not want to remember this incident or anything from that time when he testified. [ 109 ] He denied telling his mother he was “raped”, but adopted his statement to police that he told her he “got raped”.

His mother said she did not believe him. [ 110 ] In cross-examination, he agreed his memory was not constant, but came in flashbacks. Although he agreed with the suggestion this memory was formed over the last years since his father left, he however maintained that he remembers the incident “to this day because it hurts me every day”. [ 111 ] He agreed the incident was not long although it felt like forever. [ 112 ] He could not remember if his shirt was tucked in, and whether his father would have to reach into the shorts to pull it out.

It was suggested he might contact private parts if he was drunk and reaching, and he did not remember what was suggested, but did remember him trying to take off that shirt. [ 113 ] C.D. did not recall his father saying anything to him, sexual or otherwise. [ 114 ] He did not recall if his father was facing him or not. [ 115 ] C.D. testified that if he sat down and thought about it, he would remember, but he did not want to remember the day. He testified on March 27, 2017: “if I said it then, I believe it all to be true.

Today, that man is there, so it is not easy for me to be good right now”. [ 116 ] He recalled no threats made to him, or no promise to keep quiet. He was confused about his feelings and his memories at the time. He did not want to “put his mind back to that state… when he was a child, how he felt and what he saw growing up and make sense of it as an adult”. [ 117 ] C.D. protested that he did not want to remember, “but I do remember”. 4.6: Motive [ 118 ] Motive is sometimes described in cases as “ulterior intention”. “A motive for

an act is the explanation of why the actor acted. A motive or series of motives logically arises before

an act is committed. This might well be only at the unconscious level” [21] . [ 119 ] There is no obligation on the defence here to establish anything. The defence need not show that the complainant had any motive to fabricate. If such is established, however, it may reasonably be considered in assessing whether the reasonable doubt standard has been met. [ 120 ] Frequently, and especially in sexual crime prosecutions, the parties engage the trier(

s) of fact in consideration as to whether the complainant had a motive to fabricate. [ 121 ] This is a circumstance relevant to a complainant’s credibility. There can be no suggestion; however of an onus on a defendant to show that a principal Crown witness is lying. To conclude otherwise, impermissibly reverses the burden of proof and impinges upon the presumption of innocence [22] . [ 122 ] Nor does the Crown bear the burden of proving a lack of motive to fabricate on the part of the complainant. It is just one of many factors in the credibility assessment.

Lack of motive to fabricate may be considered. [ 123 ] As the Court explained in R. v. Batte [23] , What must be avoided in instructing a jury is any suggestion that the defendant has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth.

The presence or absence of motive to fabricate evidence is only one factor to be considered in assessing credibility. [ 124 ] The Crown has submitted that the evidence of both complainants was essentially unchallenged given that the defence theory of the motive to fabricate was not put to either of them in cross-examination. The Crown goes further and submits that it would be “unfair” to put a theory in submissions without having given the witnesses an opportunity to comment. [ 125 ] A.B. was directly challenged about fabrication.

He was asked in examination-in-chief about whether or not he was making up these allegations to support C.D. He denied this suggestion and answered that he “could have been more disgusting” if he was lying. The

suggestion need not be put to the witness again in cross-examination. A.B. was given the opportunity to respond to the suggestion that his allegations were fabricated. [ 126 ] I agree with Mr. Bytensky that A.B. and C.D. were both extensively cross-examined about their relationship with their mother, and the possibility of reconciliation between their mother and the Defendant. [ 127 ] C.D. was also challenged about fabrication.

It was established that G.H. continued to express thoughts about reconciliation with the Defendant when lonely until C.D. told her he had been “raped”. [24] It is clear that Defence theory about his motive to fabricate was the subject of questioning at trial. [ 128 ] I agree with the Defence submission that a reasonable doubt can arise from evidence or from reasonable inferences. Whether or not witnesses have a motive to fabricate is a matter of logic and common sense that typically arises through inferences from other known facts.

Often, the motive is denied by the witness: At the end of the day, this Court is well situated to consider whether or not A.B and C.D. had a motive to fabricate from the evidentiary record [25] . [ 129 ] The Defence submits that C.D. is motivated to put the Defendant in jail.

He felt he should be punished for his acts, which included verbal and physical abuse on his spouse and children and sexual abuse of his two sons. [ 130 ] C.D. told police that he was very mad at his father when he separated from his mother, particularly because he had lied to his dying father, C.D.’s grandfather, when the Defendant promised him to protect his family and care for them.

This was the “main reason he hated him, but there were other reasons as well”. [ 131 ] C.D. also agreed that when he went to the police station to make his statement, that he did want vengeance, and that he wanted his father to go to jail, because he was a bad man and he did not want him to touch other children. [ 132 ] A.B. testified his relationship with the Defendant was poor. G.H. also said that the Defendant constantly picked on A.B., and was physical with him.

He demanded rent from him when still attending high school, and kicked him out of the house at times, withholding food and showers. [ 133 ] A.B. told police that he wanted to see W[…] in prison, because he was an abusive alcoholic who beat him and his brothers, and not a good man. [ 134 ] The hostility of both boys against their father is bound up with what they said he did to them, and it difficult to separate their emotional feelings into discrete categories, indicating an overall hostility to him rather than the effects of experiencing abuse or sexual abuse. [ 135 ] The main argument of the Defence is that both A.B. and C.D. are motivated to fabricate these offences to ensure their mother G.H. would not reconcile with the Defendant. [ 136 ] The Crown argues that no motive to lie has been established in this case. [ 137 ] She says that suggested motive is not substantiated, and is speculative. [ 138 ] Both sons testified that they did not want to see their mother back with the Defendant, but that was mostly “old news”.

At the time of the disclosure to police, G.H. had been separated from the Defendant for approximately 7 or 8 years.

The Defendant lived in a different home and had another woman, from the very time of separation. [ 139 ] G.H. maintained some limited contact with the Defendant, such as receiving gifts for the children, and banana peels to make a holiday dish from her country. [ 140 ] G.H. did express frustration with having to do everything herself, and showed self-pity on such occasions. [ 141 ] I accept the evidence of G.H. that A.B. did not try to persuade her to separate from the Defendant, during the time they all lived together, although he was clearly unhappy and abused by him.

She also stated the separation broke C.D.’s heart, notwithstanding their frequent fights and arguments. Both sons seemed happier when the Defendant left. [ 142 ] G.H. admitted that she was lonely and missed Mr. W.R. when she was drinking by herself. Neither son regarded her alcohol- infused musings of getting together with him as serious. She had been told that the Defendant didn’t love her anymore, and had been financially disengaged for many years. [ 143 ] Motive is a question of fact. In this case, the Court finds that A.B. and C.D. have no discernable motive to fabricate their evidence.

The Court is not in doubt. [ 144 ] I do not accept that there was any belief on the part of either son that their mother and father would ever reconcile. They were also independent adults. A.B. was stable, living with his fiancée, after a five year courtship. C.D. was independent, but fared not as well emotionally. [ 145 ] While protective toward their mother, neither son saw such a reconciliation as viable or probable. [ 146 ] In addition, reporting Mr. W.R. for such serious offences would open up buried and sensitive family secrets, which were so painful for both young men.

C.D. is emotionally vulnerable and has an extremely hard time coping with the disclosure to authorities and Court process. He did not show up for the first trial date because he was unable to deal with this. He minimized his evidence and refused to think about the bulk of what he said his father did to him.

[ 147 ] A.B., if given a choice, merely wanted to make sure the Defendant never did this again to anybody, but would prefer not to go through with the Court proceeding. He would have “taken this to the grave”, in his words. [ 148 ] They took the chance of alienating their mother, whom they both loved. The fact G.H. initially refused to believe C.D. would reinforce that view. [ 149 ] Although Mr. Bytensky refers to A.B.’s fiancée as “pushing him/them” to go to police, it was rather a gentle insistence that they should do the right thing.

No pressure was brought to bear. [ 150 ] Thus, the absence of any motive to fabricate their evidence is a factor the Court can apply in assessing it. 4.7: Similar Act/Prior Discreditable Conduct [ 151 ] The Crown has brought a motion to admit the evidence of A.B. and C.D. to all of the counts alleged, as prior acts of discreditable conduct by the Defendant tending to rebut the defence of innocent association. [ 152 ] The Defence opposes the application. [ 153 ] The Supreme Court of Canada reviewed the law with respect to evidence of prior discreditable conduct or of similar acts in R. v.

Handy : [26] The starting point …is that similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice. (para. 101) [ 154 ] In R. v. B. (C.R.) [27] , the Supreme Court of Canada emphasized the fact that such evidence must possess a high probative value in relation to its potential for prejudice.

The Court stated that: …evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury . (at para.24) [ 155 ] It has since been acknowledged by the Supreme Court of Canada that similar fact evidence is propensity evidence because its value lies in the proposition that people tend to act consistently with their character. As noted by the court in R. v.

L.B. , It is clear (…) that propensity reasoning in and of itself is not prohibited. Indeed, it is usually inevitable, given the nature of the evidence and the reason for its admission. (…) It is propensity reasoning that is based solely on the general bad character of the accused, as revealed through this evidence of discreditable conduct, which is prohibited. [28] [ 156 ] In assessing prejudicial effect, the Supreme Court of Canada has indicated the following: The inherent prejudicial effect of similar fact evidence may be felt by a jury in three main ways.

The first is that the jury, if it accepts that the accused committed the prior “bad acts”, may therefore assume that the accused is a “bad person” who is likely to be guilty of the offence charged. (…) The second effect on the jury might be a tendency for the jury to punish the accused for past misconduct by finding that accused guilty of the offence charged. The third danger is that the jury might become confused as it concentrates on resolving whether the accused actually committed the similar acts.

The jury members’ attention is deflected from the main purpose of their deliberations which is the transaction charged. Having resolved the first matter, there is a danger that they will substitute their verdict on that matter for their verdict on the issue which they are in fact trying. [29] [ 157 ] However, the impact of this prejudice is decreased where, as here, all the charges are contained in the same information. The Court must first find that each complainant is likely telling the truth before they can go on to apply the testimony of one complainant to any other count.

What is required therefore is a detailed assessment of similarities and dissimilarities, a careful balancing of probative value versus prejudicial effect, keeping in mind the issues to which the evidence relates.

This task is difficult. [ 158 ] The Court must assess the probative value and the potential prejudice arising from the proposed evidence. [ 159 ] With respect to potential prejudice, as Justice D.A Harris summarized [30] : … It is necessary to evaluate both moral prejudice (i.e., the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent). [31] Clearly, the potential for prejudice is not as significant in judge alone trials such as this one.

I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice. If I was not and I was unable to set aside the potential moral prejudice arising out of the similar act evidence, it would be necessary for me to declare a mistrial now and recuse myself from the case, as I have already heard the proposed similar act evidence. [32] Such is the dilemma facing all judges trying these cases without a jury. [33] [ 160 ] The issue of probative value is more complex in cases such as this one.

The evidence must be relevant and material before it may be admitted. The Ontario Court of Appeal in R. v. L.B . stated that evidence is relevant: Where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence. [34] [ 161 ] The evidence must be directed to a matter at issue in the case.

[ 162 ] The purpose for which the Crown proposes the evidence is being proffered is the following; “to show a pattern of similar behaviour that confirms each of the complainants’ testimony” [35] , and to rebut the anticipated defence of denial or fabrication. [ 163 ] Thus, the Crown argues that the similar fact evidence would support the credibility of each complainant and undermine any blanket denial. [ 164 ] The chart prepared by Mr.

Bytensky is quite helpful [36] : In the present case, the following comparisons may be undertaken: [37] Washroom Incident Wrestling Incident Bedroom Incident 6 year old victim 14 year old victim 14 year old victim Victim was awake and resisting Victim was awake and play wrestling with his brother.

There was no apparent resistance to the sexual assault Victim was asleep and apparently compliant Sexual assault took place in a small powder room on the main floor of the residence, with many other persons awake and nearby Sexual assault took place in a bedroom in the house, in the presence of a brother who was actively participating in the wrestling Sexual assault took place in the victim’s bedroom, with various other persons apparently asleep in their rooms Drunk perpetrator Apparently sober perpetrator Apparently sober perpetrator Event occurred in the midst of a festive bbq with family friends, apparently around dinnertime Event occurred during the late afternoon, apparently after school Event occurred in the early morning hours where everyone was asleep Event began with a friend of the perpetrator saying that he liked the victim’s shirt and the sexual touching occurred while the perpetrator was attempting to remove the shirt to give to the friend Event began with the victim play fighting (or “play wrestling”) with his brother and the perpetrator joined in.

Unknown how the event began. Sexual assault was (apparently, but not clearly) the brief “fondling” of the victim’s penis, or possibly his “butt” while removing a t-shirt Sexual assault was a two second “grab” of the victim’s buttock Sexual assault was

an act of anal intercourse of unknown duration, resulting in bleeding from the victim’s anus for a number of days After the sexual assault, the perpetrator left the washroom and returned to partying with his friends After the sexual assault, the perpetrator continued to wrestle with the younger brother After the sexual assault, the perpetrator left the bedroom, returned to his own bedroom and pretended to be asleep No words of a sexual nature were spoken during the sexual assault.

Lots of words were spoken before and after the incident, especially pertaining to the shirt No words of a sexual nature were spoken during the assault, It is unclear how much was said before and after, but it appeared the perpetrator and the brother were having fun. No words of a sexual nature were spoken during the assault. No words of any kind were spoken.

The victim heard a grunting noise. [ 165 ] The similarities that the Crown points to are the following: • both complainants were blood relatives; • both complainants were siblings (half-siblings) living together at the time; • the relationship between the Defendant and each complainant was a power imbalance; • the timeframe was similar, as in 2001 A.B. was 14 years of age and C.D. was 6 years old; • both incidents took place when it was warm out and in the same home; • the Defendant had the opportunity to commit the offences and remain undetected; • both incidents involved fondling of a sexual organ; and • both complainants were penetrated, either penile or digital.

[ 166 ] The defence contends that while some of the similarities certainly exist, they too general or insignificant. [ 167 ] He further argues the specific factors in Handy do not assist in the Crown’s analysis, especially because the time of the allegations is not certain, the “similarities in detail of the acts are few, and the dissimilarities are many”, [38] there are a limited number of acts alleged, the circumstances surrounding or relating to the similar acts are markedly different (see chart), and there are no distinctive features underlying the incidents. [ 168 ] The Court must consider whether there is an opportunity for collusion, and there is opportunity although I do later find there to be no actual collusion. [ 169 ] One similarity both counsel did not make submissions on is the manner of the execution of each incident.

There is a theme of control, and domination, of each child. [ 170 ] I do however find that on balance, the dissimilarities are compelling, particularly that one is committed in the full purview of his wife and others, albeit behind a closed door; and the other main incident is committed in secrecy in the early morning hours before the home occupants are fully present. [ 171 ] In the circumstances of this case, I do not find that this evidence meets the requirements of similar fact evidence, and the application is dismissed. 4.8: Corroboration [ 172 ] Both counsel have made submissions on the evidence in this case which may be capable of corroborating or supporting the evidence of the two complainants, or either of them. [ 173 ] The Crown submits and I agree that C.D. is corroborated by G.H. about the fact that people came over most weekends and partied, and that the Defendant and herself would consume alcohol and at times cocaine.

G.H. also remembered fighting with her husband at one of those parties because he had taken C.D.’s shirt off and C.D. was crying. [ 174 ] This is not really disputed. [ 175 ] The Crown also submits that A.B. is corroborated by the negative change in his relationship with the Defendant; the school transcript as relates to the timing of the incident and change in his scholastic record; and by C.D.’s evidence (if similar act evidence is permitted between the counts on the information). [ 176 ] Defence counsel submits that none of the actual incidents with A.B. are corroborated in any way.

While the Crown’s submissions list details which are said to “corroborate” the witnesses in a general way, he says that no corroboration of the specific sexual allegations are provided, as no corroboration of the specific sexual allegations exist. [ 177 ] I agree that the issue here is whether the events themselves occurred. As such, “merely confirming other events that undeniably took place within the history of this family can hardly corroborate the occurrence of alleged specific sexual crimes” [39] . [ 178 ] Mr.

Bytensky submits that there is little doubt that “some” of what was described by the witnesses was true. For example, all described a difficult home life that was filled with abuse, much of it coming from the Defendant. He says that none of these facts support the allegations. Instead, they provide the surrounding circumstances giving rise to the motive to fabricate, and explain the manner in which the “story” came to be. [ 179 ] While not “corroboration” in the strict sense, some of this evidence is consistent with the narrative of the two main witnesses.

To that extent, it is capable of being supportive, rather than inconsistent. [ 180 ] The Defence argues that the sexual allegations were capable of being corroborated given the evidence the Court heard. For example, the wrestling incident described by A.B. included C.D., who “could theoretically have confirmed what A.B. alleged, but did not” [40] . [ 181 ] Given the age differential between the two boys, it is not surprising that this inconsequential play fight would not be at the forefront of C.D.’s mind or memory. C.D. would have to be six years old or younger at the time.

As described, the Defendant came from behind both boys, and C.D. likely saw nothing. A.B. did not cry out or say anything. He just left. [ 182 ] The Defence also referred to the anal intercourse incident, which as described by A.B., resulted in blood in his anal region for a number of days. G.H. never said that she ever saw any blood on A.B.’ underwear, in his room, on his bed sheets or bed, or anywhere else in the house. He suggests that if blood was showing up “for days” when A.B. went to the bathroom, it would have also shown up somewhere and be seen by G.H. who did some of the laundry and cleaned the house.

A.B. did not say that he washed his own clothing and he confirmed that she did the laundry for him and said nothing to him at the time. His mother said that by that time A.B. was doing his own laundry. [ 183 ] I note that A.B. never said there was bleeding anywhere but in his rectum, and that some ran down his leg. Although he did say to police he was “covered in blood”, he insisted that was the same thing, because the toilet tissue was saturated and there was some more as well. [ 184 ] A.B. never said there was blood on his sheets.

I accept that the bleeding was evident only when he got up. [ 185 ] It makes no sense that others would be aware of what happened in toileting, which is a very private thing. Toilet tissue is flushed, showers remove blood.

[ 186 ] Counsel also notes A.B.regularly attended for medical appointments [41] , and there is no corroboration from any doctor or other medical professional about any injury being observed, treated or even reported by him. While this is true, A.B. testified he never disclosed this to any professional, and the injury healed after several days. [ 187 ] The Crown lists various pieces of evidence and submits that they “corroborate” A.B.’s testimony [42] . [ 188 ] These various pieces of evidence, demonstrate the difficulties the child was having at school and within the family.

The Defence submits that the problems A.B. experienced at school do not “corroborate” the sexual offences or enhance his credibility. [ 189 ] He points out that the Crown has not “directly” submitted that these life difficulties substantiate the sexual allegations themselves or make it more likely that the events A.B. described actually took place. [43] He submits that the Court should not follow this line of reasoning as well. Mr.

Bytensky writes that “these life difficulties are also consistent with the suggestion that none of the sexual events took place and the accused was merely a poorly motivated student who was more interested in other pursuits… One cannot assume that those students were previous victims of sexual violence” [44] . [ 190 ] The defence further argues that the school transcript somewhat conflicts with the evidence given by A.B. about the impact of this incident on his schooling. The following exchange occurred in examination in chief: Q. So you told us earlier that … this happened to you when you were in grade 9? A.

M’hmm. Q. That’s high school? A. Yeah. … Q. Do you know or did you know at the time whether your school had guidance counsellors or anyone like that? A. After the incident I really didn’t show up to- yeah, I showed up to school but not the classes. I usually stay on the field with my friends and stuff but no I never really seek guidance out there.” [ 191 ] The transcript potentially is at variance with his testimony, but it is not significantly discrepant. The school transcript shows that A.B. passed all his courses in his Grade 9 year, albeit with mostly low grades. This may or may not reflect class attendance.

There is no evidence as to how the students were graded or examined. [ 192 ] The Defence also submits that the marks that A.B. obtained for his Grade 9 courses were consistent with marks that he later obtained “once he re-committed to his scholastic goals”. He suggests the transcript does not bear out the claimed difficulties that A.B. experienced in the immediate aftermath of the alleged assault, but I note that A.B. came close to failing five of his nine courses, and did poorly in all but one remaining course. He also failed some Grade 11 courses, and barely passed a number of Grade 10 subjects.

It took him an extra year to complete high school. [ 193 ] The defence argues that E.F. does not support the claim that A.B. was having any kind of “unusual” problems at school. He testified that when A.B. was 15 to 17 years old, E.F. was living with the family full time and he and A.B. went to school together (although they hung out in different groups). E.F. said he did not observe that A. had any real problems. E.F. thought A. was a “casual” user of drugs and alcohol. E.F. said, “he (A.) at least went to school. I skipped a lot of classes”.

Admittedly, E.F. was not close to his half-brother at that time in their lives, and his perceptions carry limited weight. [ 194 ] The Crown argued that A.B. completed “some courses in subsequent school years” and “graduated well after his anticipated/expected graduation date”. Mr. Bytensky says that indicates nothing probative. A.B. knew he was a fairly poor student, and knew that he graduated high school late, and the fact that his transcript supported his recollection about this is hardly surprising and cannot be used to enhance the Court’s view of A.B.’s credibility at large.

It is only evidence that A.B. had various academic difficulties. [ 195 ] That evidence is consistent with, although not strictly corroborative of, A.B.’s description of the downward spiral his life was in following the penetration incident. [ 196 ] As previously adverted to in these reasons, Parliament has abrogated the need for corroborative evidence in sexual assault cases: see Criminal Code of Canada s.274.

Section 274 however “does not insulate a complainant for one of the enumerated offences from application of the ordinary, but not stereotypical, application of the rules of evidence” [45] [ 197 ] The Court applies the ordinary rules of evidence to the totality of the evidence heard, and careful scrutiny especially to the evidence given by the two complainants. 4. 9: Disclosure and Police Report [ 198 ] The significance or evidentiary relevance of A.B.’s failure to make a contemporaneous complaint is contextual [46] , and dependent on the facts of each individual case. [ 199 ] I agree that stereotypes must be avoided, as different people who are victims of such traumatic incidents react or behave differently. [ 200 ] It is understandable why there was no disclosure by complainants during the time of the marriage to the Defendant.

The

Defendant ruled the house with an iron fist, and a nasty tongue, which served to silence those dependents. They were all afraid of him. [ 201 ] None of the remaining family had any true financial independence. The children were young, and yet to reach maturity. They did not even process everything that had happened. At the time of the incidents alleged, C.D. was approximately six years old, and A.B. approximately fourteen years old. [ 202 ] A.B. thinks he did say something to his mother, but she does not recall.

This is not to say he did not, as G.H. self-medicated with alcohol and drugs, and as C.D. testified “blocks things out”. [ 203 ] A.B. felt he could not share what had happened fully with his mother, and testified how he felt he had no one. He was isolated in the family unit, the “bastard son” (as the Defendant was wont to call him). His childhood protection by his mother was at an end, because she was indifferent at this stage, stating that they could “agree to disagree”.

He had no one else: not his biological father who he had no contact with since age eleven or twelve; no other relatives; and, no close friends that he could share such emotional things with. [ 204 ] The Defence submissions concentrate on why A.B. would not disclose, if these allegations truly happened, after the Defendant and G.H. separated. [ 205 ] The exact date of the separation of the Defendant and G.H. was never firmly established, but it is clear that they had been living apart for a number of years. [47] Prior to the separation, as the defence submitted, the Defendant had been an “abusive husband and father, who drank too much and apparently sought out the comforts of other women”.

Mr. Bytensky wrote that it is easy to understand why he was particularly disliked by A.B. and C.D., and why they were “overjoyed” and “thrilled” when he and G.H. split up. According to G.H., after the separation, the Defendant gave her $26,000 as a settlement [48] . This amount apparently made C.D. especially upset and angry at his father. She also testified that, prior to this time, he had not been generally angry with the Defendant. [ 206 ] C.D. confirmed that the Defendant “broke his heart” when he left the family.

He further agreed that he was “very angry” with his father and “hated him”. [ 207 ] Despite the abusive nature of their previous relationship, G.H. testified that she maintained contact with the Defendant. She also confirmed that, from time to time in the early days, she and the Defendant discussed reuniting. Both boys confirmed that they were aware that these discussions had occasionally taken place. [ 208 ] G.H. said that, when she told them about these conversations with the Defendant, “they were both very angry with me”. They told her that she should “open her eyes”.

They told her the Defendant was “a very bad person”, and reminded her that he had another woman. They warned her that, if reunited, the Defendant would hit her again. A.B. testified that, “when they were talking as if they wanted to get back together, I would tell my mom that she can’t, I wouldn’t allow it”. [ 209 ] Despite these words from her sons, G.H. confirmed that she from time to time considered reuniting with the Defendant. She testified that she told C.D. that she felt “unable to do things on my own”, and that he would get “very angry” when she said this to him.

A.B. believed his mother was continuing to express thoughts of reconciliation to C.D. and knew, at the time the disclosures were first made, that his younger brother had been having “another one of these arguments” where she was expressing thoughts of “going back to W[…]” [49] . [ 210 ] How did the complaints come to light after so many years? [ 211 ] According to G.H., the disclosure of sexual abuse first happened when she was having an argument with C.D. about the Defendant.

During this argument, C.D. told her he had been sexually assaulted by the Defendant. [ 212 ] G.H. testified that she told CD that she didn’t believe him, and that he would be “punished by God”. C.D. told A.B. about his conversation with their mother. This was the first time A.B. told anyone what the Defendant had done to him. [ 213 ] Some of G.H.’s evidence as to the disclosure was confirmed by A.B., but the defence submits that there were some important differences [50] : In sum, it appears that A.B. gave three different versions of how/when he disclosed the abuse to C.D.

First, he claimed that he told C.D. by telephone. Later, he claimed that he said nothing about the abuse by telephone (he only said “I believe you”), and disclosed the abuse during the dog walk. In cross, he testified that there were two conversations about the abuse. [ 214 ] According to A.B., after his conversation with C.D., he believed C.D. then told his mother that A. was also abused. Thereafter, he and his mother spoke by phone and he testified that he told his mother that “it was true”. [ 215 ] A.B. gave two different answers about what he told his mother about his own abuse.

Initially he stated that he did not give her any details. When asked about his conversation with his mother and what he told her about his abuse, he answered that “I just told her that I was sexually abused too and that was it. I couldn’t get into details at that time”.

He also stated that he did not get into any details with anyone (other than the police). [51] He gave a different answer in cross-examination when he says that he told his mother that “I was anally raped and that was it”. [ 216 ] A.B.’s testimony that he did not disclose the abuse to his mother at any earlier stage is inconsistent with G.H.’s recollection that A.B. “reminded” her that he had told her before. The defence submits that it would make common sense that a mother would remember having been told by her child that he had been abused.

As such, it may be likely he did not at any earlier time tell her he had been sexually abused by the Defendant, but her reliability on this issue is weak as a result of her emotional state and impaired memory during that stressful time in her life. [ 217 ] The defence posits that this comment was made to try to convince his mother he was telling her the truth, a “white lie” to gain her belief in what he was saying. It did not have that effect upon her, truthful or not.

[ 218 ] I do not accept A.B. was not truthful about his recall of what he had said and to whom in August 2015. He may have been mistaken, or he may be correct. The surrounding evidence of others on that issue is equally reliable. It is their perception and recall at a tumultuous and emotive time. A.B. was the most factual and least emotional of the witnesses on this issue. He took his time and waited until he could speak face-to-face, rather than in a telephone call. He wanted to tell his fiancée first. He did not want to provide details, as it was embarrassing and shameful to him.

The fact the disclosure evidence is not identical between the three of them is not significant in the circumstances, but it does tend to attenuate suggestions of collusion. [ 219 ] C.D. said that while he was having an argument, before all this came to light, with his mother about the Defendant, he was upset that she had been “defending” him. C.D. told her that he had been “raped”. [52] He agreed that he knew what “rape” meant, and acknowledged that, in fact, he had not been “raped”.

The Crown argues that the cross-examination did not clarify in fact whether he knew what that word meant at the time of the incident or of the disclosure, rather than the time he testified. [ 220 ] C.D. also said he called A.B., “because he wanted A.B. to know as well”. He did not suggest that he called A.B. because their mother would not believe him. He also testified that he had been told by A.B. during that first telephone conversation the specific detail that A.B. had been “raped”.

A.B. testified he told his mother on the phone to believe C.D. but provided no specific details at that time. [ 221 ] Defence counsel argues that the order of the disclosure is important, and the Court should resolve the conflicting evidence of the three main witnesses on this issue. [53] [ 222 ] Where the evidence conflicts between A.B., C.D., E.F. and G. H., I note that all of them are emotionally bound up and traumatically affected at the time of the disclosure, and each of them have their own perspective on the sequencing and narrative, based on their own experience and personal impact.

E.F. distanced himself from it all. [ 223 ] I accept the evidence of A.B. where it conflicts with the others. He was surprised by C.D.’s spontaneous blurt to their mother. Although it could have just been something said to stop G.H. in her tracks from moaning about no man in her life, he knew it meant more, because sexual abuse had happened to him by the same man, the Defendant. He would have “taken this secret with him to the grave” had it not been brought to the surface by C.D. [ 224 ] A.B. stayed in that oppressive and abusive home when the Defendant lived there, to protect his little brother and his mother.

He had just learned that something had happened to C.D. which he felt enormous guilt for, because he had not told anyone at the time of his own abuse in earnest. Instead he had escaped to drugs, and silence. [ 225 ] A.B. knew exactly what his brother was feeling, and could not let him face this on his own, especially with their mother’s denial. [ 226 ] As C.D. testified, A.B. was a father figure to him, whom he admired.

His support would help to heal the wounds. [ 227 ] I disagree with the defence submission that A.B. chose to pursue the matter with the police, and do “whatever it takes to put the Defendant behind bars” because of his animus towards the Defendant’s abuse. He was willing to never disclose what had happened to him. Once the police were involved, he did want justice, which is not an abnormal reaction. [ 228 ] I also do not accept the inference Mr. Bytensky asks me to draw that disclosure to police was because A.B. gave in to the pressure to do so from his fiancée.

Until this family crisis, she was unaware of the allegations in the years she had known A.B. prior. What little A.B. then had shared with her shocked her, and she could see he was depressed. [ 229 ] Nor does the Court believe that A.B. felt that it was not realistic to “pull out” from reporting the matter, “once these wheels were in motion”.

Such a suggestion was not directly put to him. [ 230 ] The defence submits that the fact that both E.F. and A.B.’s fiancée independently gave similar testimony about the disclosures supports that both testified accurately about what they had been told by A.B. both about the subject matter of the disclosure and his age at the time of abuse, which is somewhat inconsistent to A.B.’s recall of it.

I find that both other witnesses are honestly conflating what they later learned with what they were initially told. [ 231 ] While A.B. may have told them the abuse happened when he was somewhere around ten to twelve years old, it is clear that he was mistaken as to when he moved to the T[…] Drive address.

Even G.H., an adult and joint purchaser to that home, believed the move was in 1999 before her memory was refreshed. [54] [ 232 ] The mistake in the date was only aired in the testimony of G.H. after A.B. had completed his testimony. 4.10: Collusion [ 233 ] The Crown submits that this case evinces a lack of collusion between the primary witnesses.

While this submission was advanced in connection with the similar fact arguments, her submission extends the argument to the “reliability of C.D.’s memories based on his conversation with A.B. and whether it influenced what he remembers [ 234 ] “Collusion” should not be interpreted strictly . The term “collusion”, strictly defined, involves the active collaboration of multiple individuals who are armed with a common design. The presence of actual collusion is an important finding that typically significantly reduces the weight of the evidence. [55] [ 235 ] I agree with the Mr.

Bytensky that the cogency of similar fact evidence is derived from the “improbability of coincidence” and the fact that two individuals, ”testifying independently of one another” give evidence that is “too similar to be credibly explained by coincidence”.

[ 236 ] “Collusion”, in the strict since, is not the only basis to find that witnesses are not testifying “independently of one another”. Obviously, if two individuals intentionally put their heads together to come up with a common story, that would remove the “independence” of the evidence.

But it need not rise to this level to achieve the same result and destroy the cogency (ie, “probative value”) of the evidence [56] . [ 237 ] The Supreme Court of Canada in Handy did not find that the ex-wife directed the complainant to make up her evidence, and there was no evidence that the complainant and the ex-wife intentionally got their stories straight. Nevertheless, the independence of the two stories was defeated by the influencing aspects of what the ex-wife had said. The defence submits that is the situation here. [ 238 ] Cases are often factually distinct.

Recently, mere opportunity was found to be insufficient to substantiate collusion, [57] where there was no evidence the complainant spoke with the other witness about the incidents involving her: “the trial judge found that the other instances of possible collusion raised by the appellant were in the realm of conjecture.” The mere questioning of the complainant was not sufficient. [ 239 ] Although C.D. seemed to accept that his memory of the event he described was affected significantly by what he was told by A.B., a full reading of his testimony demonstrates that he said “yes” to many of the questions put in cross-examination.

It is not clear that he was agreeing with the fact the question was posed, or agreeing with the substance of the question, for many of these examples.

I found him to be acquiescing in an effort to be finished, as he expressly stated several times he did not want to see his video, he did not want to remember, and he just wants to forget. [ 240 ] The defence agrees that there is no evidence that A.B. and C.D. put their heads together or “colluded” in the strict sense to come up with C.D.’s story, it may be that A.B.’s conversation with C.D. impacted what C.D. told the Court (and the police in 2015), even in a subliminal way.

C.D. said in his narrative that he only became convinced that “it was real” after speaking with A.B. [ 241 ] Importantly however, it was C.D. who disclosed anything first. This was before speaking to A.B. and knowing anything. [ 242 ] One must also bear in mind that even the defence does not take issue with the fact the soccer shirt incident happened, which is partly corroborated. The dispute is whether there was any sexual interference associated with that assault.

C.D.’s report of that incident is independent of any discussion with his brother. [ 243 ] The Defence submits that A.B. was influenced by C.D. saying he had been “raped”. The evidence the Court accepts does not support that conclusion. A.B’s memory was not revived or retrieved. It was always present, always remembered, although he would have never said anything about the incident had C.D. not come forward. In his words, he would have “taken it to the grave”. The fact this precipitated his own disclosure does not remove the independence of A.B.’s evidence. [ 244 ] I do not find th

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