R v SKM, 2023 ABKB 144

Court of King’s Bench of Alberta Citation: R v SKM, 2023 ABKB 144 Date: 20230315 Docket: 160429452Q2 Registry: Edmonton Between: His Majesty the King Crown - and - SKM Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on March 17, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice Douglas R. Mah _______________________________________________________ Table of Contents A. Preliminary Comments . 3 B. Background . 4

C. Burden and Standard of Proof . 6 D. WD .. 7 E. Credibility Generally . 8 F. Child Witness . 10 G. Myths and Stereotypes . 10 H. The Mill Woods House . 11 I. The Incidents . 17 J. The Confessions . 19 December 1995 confrontation . 19 May 1996 confrontation . 21 2015 telephone conversation between SPP and SKM .. 23 Spring 2015 telephone conversation between DRP and NAN and SKM .. 23 May 2015 meeting between DRP and MP and SKM .. 23 K. Dr. Strange’s Evidence . 24 Voir Dire evidence . 24 Voir Dire Ruling . 26 Trial Evidence . 28 Acceptance of Dr. Strange’s Evidence? . 32 L. SKM’s Evidence . 32 M.

SPP’s Evidence . 38 N. DRP’s Evidence . 43 O. MP’s Evidence continued . 44 P. NAN’s Evidence . 45 Q. SPP’s Memory Evidence . 46 Formation of False Memory? . 46 Suppression or Repression? . 47 Changes in SPP’s Memory Evidence . 48 R.

Summary & Conclusion . 50 A. Preliminary Comments [ 1 ] This is the written version of a decision delivered orally in Court on March 15, 2023. It is as close to verbatim as possible. The names of all family members have been redacted and replaced with pseudonyms. The only other additions are the table in para 10, and the headings and citations throughout. There are no other changes. [ 2 ] Last time, at the conclusion of argument, I commended both counsel for what I thought was a well conducted trial by them.

Aside from working out many procedural and evidentiary issues between themselves, as good counsel will do, both sides presented their evidence and argument in an orderly and comprehensive way. When lawyers perform well, they make the job of the judge easier. [ 3 ] Although this will seem contrary to what I just said, when lawyers perform well, they also make the job of the judge that much more difficult. That is because each side presented a compelling case. I think it fair to say that each side put their best foot forward. The decision I had to make was a hard one.

[ 4 ] I’ll remind everyone that the evidence portion of the trial was 8 days long. Argument took 2 full days. Mr. Bottos argued for 7 ½ hours on the first day and Mr. Genuis argued for 5 ½ hours on the second day, followed by about a 45-minute rebuttal by Mr. Bottos. There was a lot of material for me to review. [ 5 ] You will recall that both lawyers asked me to refer to the FTR or official recording of the proceedings if I was uncertain about what a particular witness said at a particular instance.

You will recall that there were disagreements between counsel during argument as to what a witness said or whether certain transcript excerpts from previous proceedings were properly in the Court record for this trial. I can advise that I made full and liberal use of the FTR.

I resolved those differences between counsel in my own mind by going to the FTR and to confirm certain evidence that I felt was important. [ 6 ] Counsel also quoted from transcripts of interviews of certain witnesses with the Houston Police Department (HPD) or the Edmonton Police Service (EPS) or their testimony at either the preliminary inquiry or first trial of this matter.

In doing so, I used Exhibits J9 and J10 as a guide and confined myself to review of only those sections of the transcripts that were referenced explicitly on the record of this trial, during examination of witnesses. [ 7 ] I am going to start by giving a broad outline of the allegation and the factual circumstances giving rise to it and then I will summarize the positions of the Crown and the Defence. I will next provide a

summary of the legal principles I am required to apply before embarking on a discussion of each of the issues that I need to resolve, including credibility of the witnesses, in order to reach an outcome. [ 8 ] At the very end, I will pronounce the verdict. I am doing so in that order because I want SKM and anyone else listening in to hear all of my reasons. B. Background [ 9 ] This is an allegation of historical sexual assault, said to have occurred between September 1, 1985 and February 29, 1988 at a family home in the Mill Woods area of Edmonton.

The complainant is SPP, who was 7 years old when the date range began and 10 when it ended. The accused is SKM, who is the complainant’s uncle and was between the ages of 22 to 25 at the time. [ 10 ] All of the people involved in this case are members of a family or extended family. For privacy reasons, I am using initials as pseudonyms to denote family members in this written version.

The following table sets out the family members and their relationships to one another: P Family Immediate and Extended Family Members SPP The complainant; between 7-10 years old during the indictment date range; 45 years old at time of trial; an in-house corporate counsel in Houston, TX SKM The Accused; SPP’s maternal uncle; brother to MP and PC; lives in Detroit, MI MP Mother of complainant SPP and DRP; older sister of SKM; lives in Houston, TX PC Younger sister of both SKM and MP; lives in Windsor, ON NAN Husband of MP; father of SPP and DRP; brother-in-law of SKM; lives in Houston, TX DRP Son of MP and NAN; brother of SPP; nephew of SKM; a psychiatrist; lives in Houston, TX NVP SPP’s boyfriend in 1985; now SPP’s husband; lives in Houston, TX RC “the squalling baby”; son of PC and RIV; was 1 year old in 1985; married in 2015 MM SKM’s wife; married to him in India in 1992; lives in Detroit, MI RIV Husband of PC; moved to Canada in 1983; lives in Windsor, ON

S An uncle in Detroit [ 11 ] SPP lived in the Mill Woods home with her mother MP. There were other persons who lived in the home from time to time and I’ll explain how they came and went. Broadly speaking, the allegation is that during the date range, SKM came over to the house to study and was asked by MP to babysit SPP when she came home from school. It was during these sessions when SKM and SPP were alone in the house that it is alleged that he sexually assaulted her 2 to 3 times a week during the period covered by the indictment.

At least one assault is reported to have occurred in the apartment where SKM lived with his other sister PC. [ 12 ] This is primarily a memories case. All of the witnesses are testifying about events that occurred years ago. The acts complained of would have occurred between 37 and 34 years ago. The conversations testified to in the trial occurred 27 ½ years ago and 26 ½ years ago, with the most recent conversation taking place 7 ½ years ago. As one might expect, there is no contemporaneous record of any of the conversations.

The witnesses are all relying on their memories. [ 13 ] The primary issue in this case, as I will later relate, concerns SPP’s memory and its reliability. The Crown’s position is that SPP either forgot about the sexual assaults or suppressed them, and that the memories did not resurface until a triggering event in 1995. The Defence position is that SPP is actually putting forward a false memory, purportedly in the form of a repressed memory that was recovered.

I am choosing my words carefully because I heard expert evidence on the nature of memory, the formation of false memories and the phenomena of suppression and repression, and there are important distinctions between the latter two. I want to keep the terminology, as it was presented in the trial, straight. [ 14 ] Memories come into play with regard to interactions between SKM and SPP and SKM and other family members in the years that follow.

The Crown says that, in effect, SKM confirmed to SPP in 1995 that he had sexually molested her and further did so again in 1996 in an emotional meeting with SKM and several other family members. Furthermore, SKM as much as admitted guilt again in a 2015 telephone conversation with SPP, a 2015 telephone conversation with her brother DRP and father NAN, and finally a meeting in 2015 with DRP and MP.

What the witnesses say was said, the exact words, during these various interactions and the reliability of that evidence are at the core of what the Crown says are confessions on SKM’s part that corroborate that the sexual assaults actually occurred. [ 15 ] The Crown says the allegation of sexual assault as set out in the indictment has been proved beyond a reasonable doubt because: • the evidence of SPP is credible and reliable, and the Court may convict on that evidence alone; • SPP’s memory of the sexual abuse is not a false memory but a real one, and rather the sexual abuse events were either forgotten or suppressed, and reactivated in 1995; • SPP’s account is corroborated by SKM confessing to his crimes to SPP and other family members during interactions in 1995, 1996 and 2015; • the evidence of the memory expert called by the Defence, Dr.

Deryn Strange, is largely a “red herring”, but if relevant supports the Crown’s case in large measure. [ 16 ] The Defence says that SKM should be acquitted for the following reasons: • the evidence establishes that SKM was not in the Mill Woods home and not babysitting SPP during the time period in question; • SPP is neither a credible nor reliable witness; she comes to Court with an agenda to get SKM convicted, and has enlisted her family members to aid in this purpose; • SPP’s memory of the sexual abuse events is a false memory, when the evidence of Dr.

Strange is taken into account; • at no time did SKM confess to sexual abuse of SPP; at most he admitted to touching her and that was in reference to SPP bouncing on him in a playful manner when she was a child; • overall, it is unsafe to base a conviction on memories of events occurring so long ago, particularly where tainting of witnesses has so obviously occurred. [ 17 ] The Defence says that SKM’s evidence regarding all the events in question raises a reasonable doubt, or that, alternatively, a reasonable doubt arises on the totality of the evidence. C.

Burden and Standard of Proof [ 18 ] I want to be clear, for the non-lawyer audience, that the only question I am concerned with and which I need to answer is whether the Crown, on the evidence before me, has proven the allegation beyond a reasonable doubt. [ 19 ] SKM enters this trial presumed to be innocent. I am well aware from reading R v SKM , 2021 ABCA 246 , as both counsel asked me to do, that SKM was previously convicted of this charge by a jury in the first trial. That conviction was vacated by the Court of Appeal and a new trial ordered. The presumption of innocence started over again.

[20] Each one of us is entitled to the presumption of innocence if charged with a criminal offence. Because of the gravity of theconsequences of conviction, in a case like this, the presumption is crucial to fairness and justice. [21] This presumption of innocence is connected to the fundamental requirement in our criminal justice system that an accusedperson is not guilty of a criminal offence unless the Crown has proven that guilt beyond a reasonable doubt.

The Crown has the burden ofproving each element of the offence and that burden of proof is firmly imposed upon the Crown throughout the trial and never shifts,even where, as in this case, the Defence decides to call evidence. Where reasonable doubt is raised about whether an accused committedthe offence or about any element of the offence, the benefit of that doubt must be extended to the accused: R v Lifchus, [1997] 2 SCR320 at para 36. [22] What does the expression “beyond a reasonable doubt” mean? Reasonable doubt arises from the evidence or from the absenceof evidence.

It is grounded in reason and common sense. Whether reasonable doubt exists must be determined without sympathy,prejudice, emotion, or sentiment. Further, it cannot be based on conjecture or speculation. See Lifchus at para 36. [23] Proof beyond a reasonable doubt is not proof to an absolute certainty, but it is proof to a high level of certainty. Those of youwho are not lawyers may nonetheless have heard about the civil standard of proof of “on a balance of probabilities”.

The balance ofprobabilities means “more likely than not.” Reasonable doubt falls much closer to absolute certainty than to “more likely than not”.

Ifthe trier of fact concludes that an accused person is probably guilt or likely guilty, that would not be enough and the accused would haveto be acquitted: R v Starr, 2000 SCC 40 at para 242; Lifchus at para 32 [24] In characterizing reasonable doubt, judges often say to juries “If based upon the evidence before the Court, you are sure thatthe accused committed the offence, you should convict because this demonstrates that you are satisfied of guilt beyond a reasonabledoubt.

On the other hand, if you are not sure that the accused committed the offence, that means you have a reasonable doubt and youmust find him not guilty.” The standard is no different when it is a judge alone trial, as this is. [25] Furthermore, the concept of reasonable doubt is applied to proof of guilt and of the elements of the offence, not to individualitems of evidence. [26] The reason for protections such as the presumption of innocence, the burden of proof and the standard of proof beyond areasonable doubt is to level the playing field and ensure fairness.

In a criminal case, a single individual is pitted against the power of thestate in the form of the police and all of its investigative resources, and a professional prosecution service. These protections are in placefor the benefit of everyone who is or could be charged with a criminal offence, and that includes not just SKM but also you and me. D. WD [27] SKM gave evidence in this case. There was other exculpatory evidence presented by the Defence. Thus, this case is a so-called WD case, referring to the 1991 Supreme Court of Canada case R v W(D), (SCC), [1991] 1 SCR 742.

I am furtherguided by the reworking of the Supreme Court of Canada’s direction in WD by our Court of Appeal in R v Ryon, 2019 ABCA 36 and Rv Achuil, 2019 ABCA 299, leave to appeal dismissed (SCC), 18, from which I draw the following principles: • Ryon and Achuil restate and refine the WD assessment concerning the totality of trial evidence under the reasonable doubtstandard; • The burden of proof to prove the accused’s guilt beyond a reasonable doubt remains on the Crown such that the accused is neverrequired to prove his innocence, or disprove any of the Crown’s evidence; • If any exculpatory evidence is believed by the trier of fact, or even if not believed still leaves the trier of fact with a reasonabledoubt that it may be true, then there must be a ‘not guilty’ finding; • If after careful consideration of all the evidence, the trier of fact is unable to decide whom to believe or what happened, there mustbe a finding of ‘not guilty’; • Even if the trier of fact completely rejects the exculpatory evidence, one cannot simply assume the Crown’s version of eventsmust be true.

Rather, the trier of fact must carefully assess the evidence that is believed and decide whether that evidence persuades thetrier of fact beyond a reasonable doubt that the accused is guilty. • Whether evidence exculpating an accused raises a reasonable doubt must be assessed in the context of the evidence as a whole,cumulatively and not in isolation. [28] The purpose of the WD approach is to ensure the burden never shifts from the Crown to prove every element of the offencebeyond a reasonable doubt. [29] This is a case where there was much conflicting evidence about what happened and what was said.

In such a case, I remindmyself again, that if, after a careful consideration of all of the evidence, the Court is unable to decide whom or what to believe, it mustfind the accused not guilty of the offence charged: R v JHS, 2008 SCC 30, para 12. E. Credibility Generally [30] Witness credibility and reliability are both the fundamental issue and the greatest challenge in this case. Credibilityassessment is about the witness’ honesty and truthfulness. Reliability is about the accuracy of the witness’ evidence.

[31] A number of factors require careful consideration when assessing the credibility of a witness.

The uniqueness of each witnessand the facts of each case must be weighed and evaluated carefully. [32] The Supreme Court of Canada observed in R v S (RD), (SCC), [1997] 3 SCR 484 at para 128: It is, of course, true that the assessment of the credibility of a witness is more of an “art than a science.” The task of assessing credibilitycan be particularly daunting where a judge must assess the credibility of two witnesses whose testimony is diametrically opposed. [33] Rather than being a precise science, the Supreme Court of Canada said in R v Gagnon, 2006 SCC 17at para 20 that theassessment of credibility consists of a: …complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the variousversions of events. [34] A recent case from this Court, R v SGH, 2023 ABKB 39 , 2023 ABQB 39 (Mandziuk J), summarizes what I considerthe appropriate approach for credibility assessment, at paras 46 & 47: [46] In making credibility findings, the evidence must be considered in its entirety.

Each part of the evidence is part of the whole, andthose parts interact and inter-relate. Individual pieces of evidence cannot be viewed in isolation: White v The King, (SCC), [1947] SCR 268 at 271; Ewanchuk at paras 29 – 30. [47] The factors that can be considered in assessing credibility include the witness’s character, emotions and feelings, self-interest,hostility, attitude towards the accused, motive to lie, character for truthfulness and prior deceptive behavior.

Additionally, evidence ofbias or dishonesty in material facts that are proven through the testimony of other witnesses can weigh into the analysis: R v Tash, 2013ONCA 380 at paras 40 – 43. Inconsistencies in the particulars and the whole of the evidence are certainly an important consideration.

Nosingle factor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive. [35] Alberta Courts have also adopted O’Halloran JA’s frequently cited description of credibility assessment in Faryna v Chorny, (BCCA), [1952] 2 D.L.R. 354 at para 11: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions.

Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skilful exaggeration with partial suppression of the truth. … [36] After referring to the above paragraph from Faryna, Justice Ryan in R v Sue, 2011 BCCA 91 notes at para 47: Doubtless, a skilled liar or a good actor can easily feign sincerity. But it is also the case that most people of average intelligence cantailor a story to fit the circumstances if they put their minds to it.

Thus, a trier of fact will test a story for both its logic and, with theappropriate cautions, the manner in which it was told. [37] Authors Brown and Witkin in their textbook Prosecuting and Defending Sexual Assault Cases, (Toronto: EmondMontgomery Publications Limited, 2018) state that factors relevant to a witness’ credibility in sexual assault cases include: • whether the witness appeared honest and whether there is any reason the witness would not be telling the truth; • whether the witness had reason to give evidence that is more favourable to one side than to the other; • whether the witness was able to provide an accurate and complete observation about the event; • whether the witness appeared to have a good memory; • whether the witness had reason to remember things about which he or she testified; • whether the witness seemed genuine when displaying an inability or difficulty to remember events, or whether it seem like anexcuse to avoid answering questions; • whether the witness’s report was based on what he or she had personally heard or seen, or whether the report was based oninformation from other sources; • whether the witness’s testimony was reasonable and internally consistent; • whether the witness’s testimony was consistent with the evidence of other witnesses; and • the witnesses demeanour and giving evidence, keeping in mind that only limited emphasis should be placed on demeanour, sincepeople react and appear differently depending on their backgrounds, abilities, values, and life experience. [38] The authors further say that other considerations include collusion, bias, motive to fabricate, and whether significantomissions or exaggerations are present in the witness’ testimony as compared to their prior statements.

F. Child Witness

[39] SPP testified about sexual abuse that is said to have occurred when she was between the ages of 7 and 10. She was 45 years ofage at the time of trial. [40] Where adults testify to events that occurred to them as children, their credibility should be assessed according to criteriaapplicable to them as adult witnesses. Where the Crown’s case stands or falls on an adult complainant’s evidence of childhood events, atrier of fact should not assess credibility on the somewhat lower standard of scrutiny associated with child witnesses.

However, withrespect to inconsistencies, and particularly on peripheral matters such as time and place, an adult witness’ evidence should be consideredin the context of the age that the witness was at the time of the alleged events: Brown & Witkin at p 211; R v W(R), (SCC), [1992] 2 SCR 122 at p 134. G.

Myths and Stereotypes [41] The SGH case also succinctly summarizes how the law now demands that triers of fact not resort to myths and stereotypesabout sexual assault complainants and in general as a basis for credibility findings or reasonable doubt (at paras 49 & 50): [49] Assessing credibility and reasonable doubt cannot rely on myths and stereotypes, including generalizations about how humanbeings behave in certain situations. This is impermissible.

Such reasoning can undermine the fairness of the trial and distort the truth-finding process that is at the heart of the trial: R v ARD, 2017 ABCA 237 at paras 6 – 9 (ARD), aff’d sub nom R v AJRD, 2018 SCC6. In short, myths, stereotypes, preconceptions and related irrelevant considerations must be strenuously avoided. Generalizations orother matters that are not in evidence play no

part in the credibility assessment process: S(RD) at paras 129 – 130. [50] In R v JC, 2021 ONCA 131 (JC), the Ontario Court of Appeal explained that stereotypical thinking is not to be conflated withthe application of logic or common sense. First, judges must avoid speculative reasoning that invokes common-sense assumptions orhuman experience that are not grounded in the evidence or appropriately supported by judicial notice (JC at para 58).

Second, factualfindings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour; it is an error oflaw to draw inferences about how a complainant or accused is expected to act based on stereotypical inferences (JC at para 63). [42] Throughout these reasons I will be commenting on the credibility of the various witnesses, bearing in mind the legalauthorities cited above.

It is also axiomatic that the trier of fact may believe some, none or all of what a particular witness says.Similarly, the trier of fact can attribute different weight to the parts of the evidence that are accepted. H. The Mill Woods House [43] One of the Defence’s main planks of argument is that SKM was not present in the Mill Woods house when the sexualassaults, and in particular the first assault, are said to have taken place and therefore could not have committed them.

However, there aresome facts that are agreed upon or at least not disputed: • The Mill Woods house was a split-level with 4 levels consisting of: the street-level which was the main floor where the kitchen,living room and dining room were situate; 8 stairs up from the main level was the top level where there was a master bedroom and 2other bedrooms; down about 5 or so steps from the main level was a family room with the bottom of the window at ground-level, andeven further down was a fourth level where, at some point, a basement bedroom with a built-in desk was created.

When the basementbedroom was finished was the subject of a factual dispute in the trial. • Prior to March 1983, the following people inhabited the Mill Woods home: NAN and MP (a married couple) and their daughterSPP who was age 5 at the time, along with MP’s adult brother and sister, SKM and PC and the mother of the three siblings who was alsoSPP’s grandmother. • NAN was away from Edmonton much of the time for work. • In March 1983, SKM and PC moved out of the Mill Woods home, shortly after the arrival in Edmonton of PC’s husband RIV, andinto an apartment. • In August 1983, DRP was born.

About a year later, DRP and his father NAN moved to Toronto, where DRP was cared for byNAN’s mother. • Between September 1981 and June 1983, SKM attended NAIT for an instrument technology program. (The end date for NAITwas later confirmed to be 1984.) Thereafter, he worked for CN at its downtown location between finishing at NAIT and August 1985. • In September 1985, SKM started the engineering program at the University of Alberta. It took him 4 ½ years to finish. • Meanwhile, in October 1984 RC, son of PC and RIV, was born. The grandmother had been helping MP with DRP.

When RC wasborn, the grandmother moved over to the apartment where SKM, and PC and her family lived so that she could help with RC. • In spring 1985, SKM and PC and her family including the grandmother moved to a second larger apartment. • On July 30, 1985 the grandmother took RC to India for period of about 3 ½ years. About the same time RIV, PC’s husband,moved to Ontario for work purposes.

Effectively, the only inhabitants in this second and larger apartment after July 1985 were PC andSKM. • In January 1988, PC gave up the apartment and joined her husband RIV who, by that time, had secured employment in Windsor,Ontario. As a result, SKM moved back into the Mill Woods house and occupied the basement bedroom. MP says that SKM started

moving his belongings back into their home in December 1987 and started living there again in January or February 1988. NAN recallsthat SKM returned to live there in late 1987 but also said, “if I am wrong, then I am wrong.” SKM says that he remained in the apartmentuntil the very last day of the lease which was February 29, 1988. • This state of affairs existed until October 1988 when the P family moved to Houston, Texas.

Thereafter, SKM billeted with afamily in North Edmonton as arranged by MP. [44] Before proceeding further, I need to make some comments about the date range in the indictment, which is September 1, 1985to and including February 29, 1988. It is during this date range that SPP says she was sexually assaulted by SKM 2 to 3 times a week. [45] Mr. Genius that there is Supreme Court of Canada authority stating that the date or date range of an offence in an indictmentis not an essential element that must be proved, with reference to sections 601(4.1)(

a) of the Criminal Code. This rule is tempered wherethe accused is misled by any variance and therefore prejudiced in his Defence. Cases such R v B(G), (SCC), [1990] 2SCR 30 at para 53 and R v Jacques, 2013 SKCA 99 at paras 62-63 speak to this proposition. Mr. Genuis also pointed out that theindictment contains “on or about” language, giving leeway to the date range. [46] But this is not a case where the evidence is at variance with the date range. Indeed, evidence emanating directly from thecomplainant herself places the complained of conduct squarely within the date range. Moreover, as Mr.

Bottos pointed out, that evidenceactually narrows the range. [47] SPP testified that the sexual abuse began before she had her bicycle accident in 1986 at a time when it was cold outside,placing the opening date some time in the fall of 1985 when there was cold weather or winter of 1986. She further stated that the sexualabuse ceased as of her first menstrual period in January 1988. She conceded that the last of it might have occurred weeks or even monthsbefore that first menstruation. [48] That is the Crown’s evidence.

There is no evidence before me that any sexual abuse occurred before or after the periodidentified by SPP. For me to make a factual finding of sexual abuse beyond that, either before or after, would be either speculative orworse directly contrary to the evidence presented at trial. [49] The Crown’s evidence puts SKM in the Mill Woods home during this period identified by SPP even though SKM was notliving there. MP’s evidence is that SKM had asked if he could study at the P family home because his own residence, the apartment, wascrowded and had a noisy baby, little RC.

MP was clear, both in examination-in-chief and cross-examination, that the reason SKM studiedat the Mill Woods home was to escape the crying baby. [50] MP testified that baby RC did not leave Edmonton until some time in 1986. She is clearly mistaken in that regard because PCproduced in evidence RC’s passport which supported the departure date of July 30, 1985. The Crown concedes that the July 30, 1985date is correct. [51] MP further testified that SKM had a key to the residence and was free to come there to study as he wished. Her only provisowas that he advise her in advance of his

schedule so that she could dispense with SPP’s afterschool childcare with a neighbour and haveSKM babysit SPP while he was studying. She said this occurred regularly during the established date range, although she does not recallexactly how often or on which days. She said it depended on SKM’s schedule. Mr. Genuis suggested that MP would have a goodrecollection of this because at the time she was concerned with family finances and focused on saving money. Having SKM babysitinstead of the neighbour, who was paid for babysitting while SKM was not, would save her money. [52] Mr.

Bottos submitted that the Crown’s case falls like a house of cards because there never was a squalling baby, requiringSKM to decamp to the Mill Woods house during the date range. Baby RC had left with his grandmother in July 1985 before SKM evenstarted the engineering program at the U of A in September 1985. MP agreed that there was no reason for SKM to study at her place, oranywhere for that matter, prior to September 1985 because he was not in school. The evidence shows that he had finished his previousprogram at NAIT in 1983 or 1984.

It is therefore an impossibility that SKM needed a place to study in order to get away from thesqualling baby, because there was no such baby. [53] SKM and PC both testified that there was no need for SKM to use the Mill Woods house as a study location. During theestablished date range, only SKM and PC were living in the second apartment, so he had a perfectly good place to study. They bothtestified to the effect that SKM generally accompanied PC to work in the mornings (PC worked at the Army and Navy on WhyteAvenue) and, from there, would find his way to university on his own.

After class, they both testified, depending on SKM’s

schedule hewould either meet PC at the Army and Navy for a ride home or stay late studying on campus, eventually returning to the apartment onhis own. [54] The squalling baby reason only works for the Crown if, as MP testified, baby RC did not leave the country until a point in1986. However, it is established and conceded that baby RC left Canada before SKM even started at the U of A. [55] Mr. Genuis submitted that the absence of the noisy baby is not an impediment to the Crown theory. He submits that SKM didnot need a reason to attend at the Mill Woods home other than to sexually assault SPP.

He argued that SKM certainly had the means togo to the Mill Woods home. SKM could have walked there from the apartment, he could have taken the bus, and there were times whenhe had access to PC’s vehicle, all of which PC agreed to at least in a theoretical way. The evidence shows, and this was not disputed, thatSKM used a vehicle to take SPP to at least one medical appointment.

PC testified that she and SKM would help MP with SPP if calledupon and when available, because they were all members of the family. [56] Further, MP testified that in her narrative with baby RC not leaving until 1986, SKM continued to come to their place to studyand concurrently babysit even after RC had departed Canada with his grandmother. Thus, Mr. Genuis submitted that the Crown’s theoryremains intact notwithstanding RC’s absence. [57] I note that even in MP’s evidence that SKM continued to study at the P house in 1987 and 1988 even after RC had left, the

squalling baby was still the reason that SKM came to that house to study in the first place. MP never resiled from that position. However, the notion that SKM decided to study at the P residence starting in September 1985 to escape a noisy baby is completely unsupported by the facts. [ 58 ] NAN repeats the noisy baby notion in his evidence even though he had not lived in the Mill Woods home since 1984, although he would have been home for visits.

His repetition of the noisy baby scenario, because it is untrue, must mean that he was told of it by someone. [ 59 ] I accept that in theory SKM could have gone to the Mill Woods house and commit sexual assault against SPP, notwithstanding that there was no squalling baby to escape. But the baby evidence is still problematic for the Crown’s case. That evidence is completely contrary to the evidence that both the Crown and Defence agree is correct, and which I accept, which is that RC left in July 1985.

MP’s clinging to this incorrect evidence, in both examination and cross-examination, reflects on her credibility. She is insisting that something that is demonstrably untrue is true. [ 60 ] More fundamentally, the squalling baby scenario is the origin of SKM going to the Mill Woods house. Without an origin, there can be no continuation. MP’s evidence that SKM continued to come over, even though there was no RC to disturb him, does not make sense if he did not go there in the first place. [ 61 ] While I am at it, I will make a couple of other comments about MP’s credibility. Mr.

Bottos suggested that if SPP and MP did not outright collude in coming up with the

schedule of SKM’s comings and goings from the Mill Woods house, and at least there was tainting and influencing by SPP. MP admitted that SPP would get angry with her and use profanity when MP could not remember certain events. Further, as discussed in MP’s HPD interview, it was SPP who told MP that SKM babysat her (SPP) on Thursdays. [ 62 ] During cross-examination, Mr. Bottos suggested to MP that she had actually told Officer McAllister that she had no recollection of SKM babysitting SPP until reminded of it.

In the brief excerpt of that interview that I was entitled to review, MP seems to be saying that SPP had after-school childcare involving the lady across the street. It was then SPP who suggested that SKM came home early on Thursdays and did the babysitting, which MP adopted. [ 63 ] This became a contentious point near the close of MP’s evidence at trial. In re-direct, Mr. Genuis elicited the response from MP that she had only been told by SPP that SKM’s babysitting occurred on Thursday, meaning that MP remembered that SKM had babysat but had to be reminded about the exact day it occurred.

MP then repeated her evidence that SKM was coming to the Mill Woods home between 1985 and 1987. At that point, she was asked by Mr. Genuis whether during that period she came home from work and found SKM at home with SPP. MP asked the question to be repeated and it was. She replied, “I don’t remember that.” [ 64 ] This initial answer supports Mr. Bottos’ theory that SPP has tainted MP’s evidence. Here, MP has no recollection of ever coming home from work and finding SKM at home with SPP. The implication, from the Defence perspective, is that there was never any babysitting by SKM of SPP.

MP’s answer to this question after hearing it twice, the Defence might say, reflects her actual experience, not what SPP told her. [ 65 ] This answer was clearly not the one that Mr. Genuis expected so he asked a further question which was close to the first question posed but incorporated the idea of babysitting. Mr. Bottos rose at that point to object to the question but before the objection could be discussed, MP answered ‘‘yes’’ to the second question, meaning that she did remember that SKM babysat SPP during the period in question. [ 66 ] Mr.

Bottos contended that Crown counsel in posing the same question in a slightly amended form a second time alerted the witness that she had given the wrong answer and gave her the chance to change her answer. Defence counsel suggested that the two answers – side by side - cannot logically both be true. If MP did not see SKM with SPP when she came home from work, there is no way she could have seen SKM babysitting SPP when she returned home from work. Mr.

Genuis replied that the witness had appeared confused about the first form of question and so he asked the second form of question in order to clarify the evidence. In the end, both counsel agreed that it would be a matter of weight for me to decide. [ 67 ] There are a couple of other troubling aspects of MP’s evidence that I will mention now since I am on the subject. MP testified at this trial that she omitted certain details from her interview with the HPD because she felt she and the officer were just “chitchatting” and she wasn’t required to give precise details.

MP is an educated person with a Master’s degree in, I believe, agriculture and botany, worked in a research lab and retired as the vice president of the lab. She is an educated and intelligent person. I have a difficult time grasping that she would think a police officer conducting an official investigation into a sex crime, one that concerns her own daughter as victim, where the interview is being recorded and takes place at a police station, would be just chitchatting with her. “Chitchatting’ to me conjures up an image of two neighbours having tea, discussing the mundanities of life.

A police investigation is serious business and MP could not have been mistaken about that. If there was any time to be providing as much detail as possible, it would be to a police officer conducting a criminal investigation. Her excuse for the omissions falls flat. [ 68 ] Next there is this business on which the two sides do not agree concerning the state of the basement in the Mill Woods home when SKM moved out in 1983. It is a small point that reflects on the credibility of both MP and SKM.

At this trial, MP, supported by NAN, testified that the basement bedroom with the built-in desk was finished and that SKM was occupying it in its finished state when he moved out in 1983. SKM says the basement was still in the unfinished exposed concrete state and that while he kept his exercise equipment there, he did not sleep there because there was no bedroom, bed or bedding. Rather, he slept on the couch in the family room. He says he did not occupy the finished bedroom until he returned to the Mill Woods house 1988. [ 69 ] In her 2015 HPD statement, MP echoed SKM’s position on this issue.

She stated that before leaving in 1983, SKM did not sleep in the basement because the basement was not done. He slept on the car level, meaning the family room, and only stayed in the finished basement bedroom when he moved back in. [ 70 ] Mr. Genuis made the argument that the owners, the people who built the house, are best positioned to give evidence about the state of the home’s construction. I think the person that actually occupied the space at the relevant time would equally be positioned to

give that evidence. In any event, the fact remains that MP gave contradictory evidence on a factual point that was much contested in this trial. I acknowledge Mr. Bottos’ point that MP’s 2015 HPD statement is likely the least unadulterated and truest because MP and SPP were not on speaking terms at the time and MP was not subject to any influence from SPP. [ 71 ] Crown counsel suggested that MP’s evidence is not really that important to the Crown’s case and that conviction can be based only on the evidence of SPP and DRP. But I cannot ignore MP’s evidence.

The question of proof beyond a reasonable doubt must be considered in the context of the totality of the evidence, not just selected pieces. Further, MP’s evidence is the only evidence apart from SPP’s that places SKM in the Mill Woods home at the right time. I am going to deal separately and at length with SPP’s credibility. MP’s evidence is the only evidence that provides a rationale for SKM’s presence in the Mill Woods home even though he was no longer living there. NAN, I find, was just repeating what someone had told him.

DRP, who says he remembers he saw SKM in the basement, was one year old when he left Edmonton and although he probably was back in the Mill Woods home for visits before the family moved to Houston, he admits he cannot remember when he saw this. Thus, he could very well be remembering the period after SKM’s resumed residency in the Mill Woods home post-January 1988. [ 72 ] SKM and PC both said that he did not go to the Mill Woods house to study from the time they moved out in 1983 until SKM moved in again post January 1988. According to them, SKM would not have been in the house except for family functions.

If he needed to study, they say, and he was not on campus, he had a perfectly good and logical place to go, being his own apartment. [ 73 ] I summarize the issue about SKM’s presence in the Mill Woods home during the relevant time as follows: • RC the squalling baby was posed by MP as the origin of why SKM was present in the Mill Woods home during the established date range. She never relinquished that position.

Her credibility is adversely affected by clinging to the noisy baby scenario and in other ways, as I just described. • In the Crown’s submission, there is no reason necessary for his presence in the Mill Woods house other than to sexually assault SPP. It would have been physically possible for him to go there and he had access to a key so he could have let himself in but what reason does he have to for being there in the first place? The reason that justified his presence, according to the Crown’s witness, was the squalling RC.

He had to have a reason that placed him in the house, alone with SPP, in the first place in order to enable the first sexual assault. • MP is basically saying that the squalling baby is the origin of SKM’s presence and after the baby has left Canada, he continued to attend at the Mill Woods house in order to sexually assault SPP. This version does not align with the accepted facts about RC’s departure from Canada. As I said, if there is no origin, there cannot be a continuation.

The Defence is also right that, logically, unless there is a first sexual assault, there cannot be a progression. • Moreover, apart from material inconsistency concerning when baby RC left Canada, there are inconsistencies in when the basement bedroom was finished and with regard to if she ever came home and saw SKM with SPP. [ 74 ] As I said, MP’s reliance on the squalling baby scenario is highly problematic for the Crown’s theory.

However, I feel it is necessary for me to continue in the event my logic regarding the squalling baby scenario is wrong and because I need to deal with whether SPP’s evidence and the evidence concerning the confessions can overcome this problem in the Crown’s case presented by the lack of a noisy baby. As I said, I must determine the outcome of this case on the totality of the evidence and not selected bits. I.

The Incidents [ 75 ] The Crown’s case is based on SPP’s evidence of the abuse and the evidence of SPP and other family members regarding 5 separate instances in which the Crown says SKM confessed or admitted to committing the abuse. [ 76 ] SPP’s evidence about the course of the abuse is summarized as follows: • Before her bicycle accident in the summer of 1986, when the weather was cold, the abuse began, thus placing it, at earliest, in fall 1985 as the weather turned cold.

She testified that it was her belief that the abuse had started before the family went out to see Halley’s Comet in February 1986. • On the day the abuse began, SPP came home from school, went down to the basement bedroom where SKM was studying, and took a nap on his bed. She said that even as a child she had found SKM ‘creepy’ and that she was ‘not a fan’ but nonetheless, as a small child, she chose to nap on SKM’s bed. • SPP testified that SKM touched her genital area with his hand over her clothes, specifically remembering a tap-tap-tap motion with his hand.

She says she froze and became scared. • The tap-tap-tap type of touching on the outside of the clothing occurred a few more times. The touching then progressed with SKM touching her vaginal area under her clothes but over her underwear. The touching progressed further to the point where SKM’s finger or fingers slid beneath her underwear and touched her vagina. He tried inserting her fingers in her vagina and she said that this caused her pain.

The next stage was where SPP’s pants or skirt and underwear came off, and SKM’s hand was touching, massaging or patting the vaginal area and he was trying to insert his fingers into her vagina. Spooning had begun where SKM’s body was pressed up against SPP’s and she could feel his breath on the back of her neck. At some point, he took her hand and placed it on his fully erect penis, over his clothing. • SPP remembers specifically that the abuse started and progressed in the basement bedroom, and that it sometimes occurred on the couch in the family room.

She remembers the 2 of them on the family room couch together, where her underwear has been removed and he is stroking her vaginal area. She describes how, as an 8-year-old girl, her body had a sexual response to the stroking.

• She remembers wearing her favourite corduroy skirt and white tights at the time of the first incident. SPP initially said that after that initial incident, she stopped wearing skirts and became a tomboy. In cross-examination, it was pointed out to her that there was a reference in her previous evidence to her wearing skirts after the first incident. She then clarified that as the abuse progressed, she developed an aversion to wearing skirts and turned into a tomboy. • SPP was able to describe the frequency of the abuse, 2 or 3 times a week, and the locations being both SKM’s and the couch in the family room.

She also related a specific memory of an incident in PC’s apartment because, again, of the clothing she was wearing at the time, a pink velour one-piece romper or jumper with a string that tied behind the neck. She remembers this because on the drive home, SKM complemented her on the outfit and told her she should dress that way more often. Later, in reviewing her wardrobe for school, her mother noted that the outfit didn’t fit her anymore and was now too tight to be worn. • SPP was unable to relate any further specific incidents beyond those just described.

She said they occurred numerous times in the basement bedroom, multiple times on the couch in the family room and one time for sure at PC’s apartment, although there could have been more. SPP is clear that there was a sequence or evolving continuum from the first time involving the tap-tap-tap on her vagina in SKM’s basement bedroom to being completely naked on the family room couch while SKM was basically masturbating her to the point of orgasm.

She is unable to relate specific dates and times of any abuse episodes. [ 77 ] As described by SPP, what transpired between herself and SKM satisfies all of the elements of sexual assault under then

section 246.1 of the Criminal Code , now

section 271 . That she cannot recall specific dates or specific instances details other than as mentioned falls within the allowable margin that should be accorded to child witnesses, even testifying as adults, that I referred to earlier. [ 78 ] SPP testified at trial that she has always retained the memories of the abuse since it occurred. She said that at the time the family moved to Houston in the latter part of 1988, the abuse was fresh in her mind. SPP recalls being anxious around any adult male person, including her father.

She said that when she attended SKM’s wedding in India in 1992, she was reminded of the sexual abuse when she was groped by a stranger at the Taj Mahal. SPP described an incident during a wedding event when SKM commented that his new wife had “nice legs” and she recalled, in the context of the sexual abuse, that he had made similar comments to her.

She describes being “on high alert” and “hypervigilant” during the wedding trip. [ 79 ] She said she had deployed coping strategies in order to live her life and that the memories were not in her prefrontal cortex but rather stored in a filing cabinet, which she explained was a metaphor for the repository of memories in her amygdala, and in the nerve endings of her vagina. [ 80 ] In cross-examination, she was asked why she told the HPD in 2015 that she had no memories of the abuse while in India in 1992 and that the memories only returned in December 1995 after a triggering event involving intimacy with her then boyfriend-now husband.

The explanation about the storage of her memories in the amygdala rather than the prefrontal cortex was in response to this line of cross-examination. [ 81 ] It was in her freshman year at college in the fall of 1995 that the triggering event occurred. SPP describes how she was having a consensual sexual encounter with NVP, her boyfriend at the time who later became her husband, which led to her having an orgasm. Instead of this being a pleasurable experience, SPP says that she was overcome with panic and anxiety and had to leave the room to go for a walk.

She remembers that someone had poured laundry detergent into a fountain on campus and seeing all the bubbles is what caused her to calm down. [ 82 ] SPP explained that, in hindsight, she realized and understood that it was her amygdala telling her that this sexual activity was dangerous to her. After the consensual encounter with NVP, SPP says that she began having vivid flashbacks about the abuse.

These memories emerged involuntarily and intrusively, as she explained, because she had spent “years avoiding, distracting and disconnecting and all sorts of things so I’m not thinking about this shit fucking 24/7.” She said at trial that after the NVP encounter, the “floodgates are open” and although she didn’t realize it at the time, she was suffering from PTSD. J.

The Confessions [ 83 ] There is a series of five interactions between SKM and SPP and members of her family over the ensuing 27 years (1988 through 2016) which the Crown submits, taken singly or in aggregate, constitute confessions by SKM to the sexual abuse.

These are: • a December 1995 in-person interaction between SPP and SKM in the guest bedroom of the P home in Houston in which SPP says she confronted him and he admitted to molesting her; • a May 1996 group meeting in the master bedroom (and its adjoining bathroom) of the P home in Houston where SKM, SPP, NAN, MP and the mother of SKM and MP (SPP’s grandmother) were present, and in which the Crown says SKM admitted to SPP’s sexual molestation; • a telephone call in February or March 2015 were SPP asked SKM to pay for her therapy; • a telephone call in spring 2015 between SKM on one end and DRP and NAN on the other to discuss payment for SPP’s therapy and SKM’s attendance at RC’s upcoming wedding; and • finally, the meeting in May 2015 at Uncle S’s house in Detroit between SKM, MP and DRP, in which DRP reported that SKM made some disclosures indicating that he acknowledged sexually molesting SPP. [ 84 ] Whether any or all of these interactions constitute admissions of sexual misconduct by SKM against SPP depends on exactly what was said and exactly what SKM agreed with.

SKM and the Crown witnesses differ as to what was said and that to which he admitted. I also take into account that the earlier interactions occurred more than a quarter of a century ago and the latter interactions

more than 7 years ago. It is well accepted that memory does not improve with age. Further, accounts between Crown witnesses of the same event differ slightly or significantly. As well, accounts from the same witnesses differ slightly or significantly with each retelling. Finally, SPP’s family members at times assiduously avoided using sexual terms to describe the conduct, apart from one instance where MP said she specifically referred to SPP’s genitals, but I will deal with that separately.

This has led the Defence to argue that when it comes to what SKM actually admitted to, the accusers and the accused were talking about two different things. December 1995 confrontation [ 85 ] During a visit by SKM and his wife MM to the P’s Houston home at Christmas time in 1995, SPP confronted SKM in the guest bedroom where he was taking a nap. She said she told him that she was remembering things and that she knew he had done things to her. She asked him if he had raped her. She did not remember being raped but it was important for her to know whether she was still a virgin. SKM reportedly said ‘no’.

He also said ‘no’ to the question of whether he had drugged her, which SPP said she asked because being drugged might account for the lack of memory of being raped. When she asked whether he had sexually molested her, she said that he answered ‘yes’, and she told him that he needed to tell her parents. She then left the room. SPP said the entire encounter lasted between 10 to 15 minutes. [ 86 ] In examination-in-chief, SPP was emphatic that she had used the words ‘molest’ and ‘sexual molestation’ in posing her questions and that SKM responded by saying ‘yes’.

She described SKM’s reaction to her questioning as a confession to sexual molestation but a denial of rape. [ 87 ] She said there were follow-up conversations between December 1995 and May 1996 between herself and SKM in which she reminded him that he needed to tell her parents about his sexual transgressions against her. SPP recounts that he said that he would but needed more time. When he did not do so, SPP told her mother about it in May 1996. [ 88 ] In her 2015 HPD statement, SPP collapsed the 1995 confrontation and the 1996 disclosure to her mother as occurring almost one after the other in December 1995.

She says she contacted the detective afterwards to correct the timeline. In cross-examination, she had somewhat of an argument with Mr. Bottos about whether the incorrect timeline was a failure of memory or merely an instance of misspeaking. She was adamant that her memory was not wrong. [ 89 ] SPP also had no memory of what transpired in the day or two preceding the confrontation. She does not remember she and DRP taking SKM and MM on a tour of Galveston and the Indian community in Houston, the four of them having lunch at a Mexican restaurant and SKM paying for gas.

Defence counsel cross-examined her about these events, not because they have evidentiary significance in and of themselves, but as an illustration of SPP’s either fallible or selective memory. [ 90 ] After leaving the confrontation, SPP said that she drove over to NVP’s house to tell him about the sexual abuse and the confrontation. She said that NVP followed her home in his car to make sure that she arrived safely. NVP either entered the P house or came up to the doorway. In either event, he met SKM in person, for the first and only time, and they shook hands.

SPP does not recall the nature of any interaction or words spoken between SKM and her boyfriend NVP. [ 91 ] SKM’s evidence about the 1995 confrontation is quite different. He says that SPP came into the room and told him that she did not feel comfortable around him and asked him if he had done something to her. He responded by saying that he did not know what she was talking about. When she pressed him on whether he had done something bad to her, he replied again that he did not know what she was referring to and that he had not done anything bad to her. His denial of wrongdoing made SPP increasingly angry.

He said she kept asking him the same questions over and over again, swearing the whole time and using ‘tough’ language, getting more and more angry. SKM testified that SPP then asked him, more aggressively, if he had raped her, molested her or touched her. The questions were asked in rapid-fire succession and he answered ‘no’ to each question. He testified that he maintained ‘no’ to rape and molesting but eventually said ‘yes’ to touching.

As soon as he said ‘yes’, SPP closed the door and rushed away. [ 92 ] In his evidence-in-chief, he explained that he changed his answer to the ‘touching’ question because he searched his mind to think about what SPP could possibly be talking about. He then remembered that when he moved back into the Mill Woods House in 1988 and was occupying the basement bedroom and lying down on the bed, SPP would come down and jump on him. He described it as SPP straddling him and jumping on his midsection, stomach and thighs. He said he didn’t think too much of it at the time.

He related that sometimes it hurt him when she landed on his stomach and that he admonished her by saying “You aren’t a little girl anymore.” [ 93 ] In one instance, she did the same to him while he was lying on the floor of the family room watching a hockey game. The family had company over at the time and people were gathered on the main floor and could see the family room through the railing. He described how he immediately felt embarrassed and that SPP bouncing on him in such a manner looked like the two of them were in a sexual position.

SKM was worried that if someone saw the two of them engaged in this activity, it would seem like they were doing something wrong. [ 94 ] SKM acknowledged that there was nothing sexual about the bouncing and that SPP was only trying to annoy him, as kids will do. But he felt the bouncing could be misconstrued by others and was immoral and possibly illegal.

He said that when he said ‘yes’ to touching, it was the bouncing he was thinking about as the only possible thing to which SPP could be referring. [ 95 ] SKM recalls SPP and DRP driving himself and MM around Houston showing them the sights in the day or days preceding the confrontation. After the confrontation, SKM says that he was taken aback and had to compose himself. He thinks he likely met SPP’s boyfriend later that same day. [ 96 ] He does not recall any telephone calls or texts from SPP between the December 1995 confrontation and the group confrontation that occurred in May 1996. May 1996 confrontation

[ 97 ] This confrontation was described by three Crown witnesses and by SKM. Present, at one point or another, were SPP, MP, NAN, SPP’s grandmother and SKM. All witnesses describe an emotional scene in which accusations were made against SKM and the grandmother, who was SKM and MP’s mother, taking SKM’s hand and placing it on her head and then asking him to swear by God and on her life and answer the question: Did you do kharabi to this girl? By all accounts, SKM replied ‘‘yes’’ to the question. [ 98 ] The word kharabi was spoken by the grandmother in Hindi. At trial, I was told the word has varied meanings.

It could mean ‘deterioration’ or ‘spoilage’. It could also mean ‘bad thing’ or ‘harm’. SPP said she thought about which English word would best convey the meaning she intended and said ‘defilement’. [ 99 ] According to SPP, after the ‘yes’, MP then asked SKM in English if he had raped SPP. He replied ‘no’’. She then asked if he had molested her, and SKM reportedly said ‘yes’. In SPP’s evidence, NAN then began to bang his head multiple times against the wall. At the grandmother’s command, SKM apologized, repeatedly.

The entire incident lasted between 30 and 40 minutes. [ 100 ] MP’s version mostly corroborates SPP’s account of the event with one notable addition. MP testified that her last question posed to SKM was whether he had touched SPP’s genitals. SKM is reported by MP to have replied ‘yes’ to this question. [ 101 ] Concerning this event, NAN related quite a different version. He testified that SPP had made her complaints known to MP who then in turn informed NAN and the grandmother. It was resolved by them that a conversation with SKM was required.

The occasion then presented itself when SKM and his wife were in town for a wedding in Houston in May 1996. NAN testified that the grandmother had been informed of SPP’s allegations by MP. According to NAN, the grandmother took SKM upstairs to the master bedroom, placed his hand on her head and asked him to swear by God and by her to tell the truth. Since the grandmother did not speak English, she used the word kharabi . NAN explained that kharabi is a Hindi or Punjabi word that in the particular context would mean “bad things to the female”. To this question, NAN reported that SKM said ‘yes’.

NAN says he was ‘blindsided’ by the answer and struck his own head once with his two hands. He demonstrated in Court how he did this. Everyone became emotional. NAN said to SKM “What the heck have you done to my daughter?” and told him to leave. [ 102 ] NAN specifically recalls MP being present but does not remember MP saying anything at this meeting. He believes the meeting lasted 5 to 10 minutes and that it was not as long as half an hour. [ 103 ] SKM said he was asked by, he thinks, MP to come into the master bedroom for a discussion. Others present were NAN, SPP and his mother, SPP’s grandmother.

The conversation began with the grandmother asking if SPP’s allegations are true. When SKM asked about the nature of the allegations, SPP began firing the same questions at him: Did you rape me? Did you molest me? Did you touch me? When SKM said ‘no’ to these questions, SPP got angry and was swearing a lot. SKM says this went on for 15 or 20 minutes and nothing was being resolved. Finally, as SKM perceived, his mother (SPP’s grandmother) as a means of wrapping up the conversation, took his hand and put it on her head, asking him to swear on her life that he tell the truth.

At that point, his mother posed the kharabi question, to which he answered ‘yes’. [ 104 ] According to SKM, MP then got upset, repeated the ‘rape’, ‘molest’ and ‘touch’ questions. SKM answered ‘no’ to ‘rape’ and ‘molest’ and ‘‘yes’’ to ‘touch’. At that point, SKM says that “everything broke down” and he believes that NAN banged his hand on the counter. [ 105 ] SKM explained that in Indian culture, placing a hand on another’s head and swearing to tell the truth is a method of getting to the ultimate truth or answer and thus putting an end to the inquiry.

He said that he interpreted his mother’s actions in this manner and as an escape from a highly unpleasant situation. He further explained that kharabi can have many meanings, such as a car breaking down, or food spoiling, or one person doing something wrong to another person. In context, he understood that his mother was using kharabi in the sense of whether SKM had done something wrong to SPP. He answered ‘yes’ to this question. [ 106 ] He says that none of his inquisitors clarified what they meant by their ‘touch’ questions and certainly that he was not asked whether he had touched SPP’s genitals.

He was also not asked to explain what he meant. [ 107 ] SKM says that he did ask for forgiveness after saying ‘yes’ to kharabi . He was also upset and says he was on the floor crying. SKM says he was ‘” hysterical” at that point. He says that he did not clarify what he meant because he felt he was under intense pressure, did not wish to talk back to his sister and simply took the path of least resistance by answering ‘yes’ to the kharabi question.

SKM described how MP basically disowned him as a brother at that time. [ 108 ] In terms of what he actually admitted to, SKM is insistent that in his mind the kharabi referred to the occasions when SPP jumped on him and bounced on his groin area. He said that it was a “bad picture”, “immoral in my mind”, that he felt “guilty” as he felt that others may have seen it. 2015 telephone conversation between SPP and SKM [ 109 ] Nearly 20 years went by before the next event in the chain of narrative. [ 110 ] SPP describes that at in 2013, her mental health began to decline.

She said she was struggling throughout 2014 and by January or February 2015, she and her husband NVP had started marriage counselling. Thus, in or about February or March 2015, SPP contacted SKM by telephone to ask him to pay for her therapy as she was really struggling from the effects of the sexual abuse. SPP related that SKM replied by saying if he had been asked 5 or 6 years earlier, he would have been able to help but he could not now do so because he had to pay for his daughter’s college. This response angered SPP and she admitted to using expletives with him.

She told him she was living with the emotional outcomes of his actions, and he was living ‘free and clear’ of any consequences. She specifically mentioned that he did not have to register as a sex offender or go to jail. SKM told SPP to call her mother and she hung up on him. She said that SKM did not ask her why he should pay for therapy. [ 111 ] SKM says that initially he received a text from SPP asking to speak with him. At first, he thought it had to do with NAN’s

health. Eventually he and SPP connected, and he stated that during the call SPP advised him that she was not doing well mentally and asked him to pay for her treatment. He questioned why he should have to pay, and she replied that it was because he had molested her as a child. He said that he replied that he had not molested her and told her that his money was tight at the moment because of his daughter’s college costs and mortgages on two separate houses.

SKM testified that at that point no one had clarified with him what he had supposedly done to SPP and as far as he was concerned, the only thing that came to mind was the untoward ‘bouncing’. He said he did not see how that could result in mental health issues and the need for therapy. In the result, he said that he ‘could not put 2 and 2 together’ as to why he should be paying for her therapy. Spring 2015 telephone conversation between DRP and NAN and SKM [ 112 ] SKM recalls receiving the call on his cell phone at work and not really wanting to talk because of all the people around.

Nonetheless, he agreed to continue with the call and was asked by DRP to pay for SPP’s therapy. He says that he again replied by asking why he should be the one paying. NAN then said that although they (meaning NAN and MP) could easily pay, SPP was insisting that SKM pay. SKM replied as he previously did by talking about his financial obligations and how he could not afford to pay. [ 113 ] In the same conversation, DRP asked SKM not to attend RC’s upcoming wedding in Windsor. SKM said he could not do that and would be attending the wedding.

May 2015 meeting between DRP and MP and SKM [ 114 ] SKM did attend the wedding. Only DRP and MP from the P family attended. MP greeted SKM when she saw him but DRP refused to shake his hand when it was offered. [ 115 ] The three were able to meet at Uncle S’s house in Detroit after the wedding. In this meeting, payment for SPP’s therapy was again raised. DRP gave the reason that SKM should pay was because of what SKM had done to SPP when she was a child. In his EPS interview, DRP said that SKM admitted to something, whether it was ‘molesting’ or ‘touching’ he couldn’t be sure.

SKM said that he knew what molestation was, as he had been molested himself and nearly raped as a child, a disclosure that he made for the first time. [ 116 ] On making this disclosure, DRP commented that he thought SKM was ‘hurting inside’ and offered to provide the name of a colleague who could help SKM.

In response, SKM said that after 50 years of living with his childhood experience, he did not need treatment. [ 117 ] There was a discussion about how SKM might raise the money to pay for SPP’s therapy, DRP did a quick calculation of the cost, and SKM again professed that he could not afford to pay because of other financial obligations. At that point, MP offered to pay for his daughter’s post-secondary education. SKM said that he was touched by the offer, even though he did not feel it was genuine. DRP was surprised that his mother would make such an offer.

The meeting ended with SKM and MP engaging in an emotional embrace. [ 118 ] SKM denied ever saying at this meeting that he realized, on an occasion of taking SPP to a medical appointment for her vitiligo, that his activity with her was wrong, or that he avoided children, as recounted by DRP. K. Dr. Strange’s Evidence Voir Dire evidence [ 119 ] The Defence proposed that Dr. Deryn Strange be qualified as an expert in the areas of memory, memory errors, traumatic memory, memory distortion and the development and maintenance of false memories. [ 120 ] Dr.

Strange is a tenured professor of psychology at John Jay College of Criminal Justice in New York. In her CV, she described her research interests as follows: how we remember and misremember traumatic events; how we promote and maintain memory distortions and whether we can correct those distortions; memory distortions in legal settings; the development and maintenance of false memories in children and adults. [ 121 ] She has written or cowritten over 50 learned peer-reviewed articles in various scientific journals and has presented many times at scientific meetings, in her areas of interest.

She is an elected fellow of the Association for Psychological Science, an international body that is the largest organization for psychological scientists in the world with 22,000 members worldwide. She is the past president of the Society for Applied Research in Memory and Cognition, a smaller body with about 500 members, consisting of applied memory and cognition experts. [ 122 ] Dr. Strange was qualified as an expert many times in the United States and New Zealand. As of this trial, she had never been qualified as an expert in Canada. The only time Dr.

Strange has been denied testifying as an expert in Canada was in the original trial of this case. [ 123 ] This is a

summary of the evidence given by Dr. Strange at the qualification stage of this trial: • Memory does not work like a video recorder, rather it is a process of reconstruction; the majority of members of the public do not understand that memory does not operate like a video recorder. • Every memory a person has exists on a spectrum from entirely true to entirely false; most of our memories are somewhere in the middle; it is very rare to get an entirely accurate memory because memories do not work like a recording device.

• During an experience, certain material becomes encoded in memory; what is encoded depends on what the person having theexperience pays attention to or focuses on. • The encoded material is then stored in the brain, and upon retrieval, which is the reporting or discussion of past events, what isremembered may be influenced by internal or external suggestions or by assumptions. • Traumatic memory is not a special memory system; while traumatic experiences may involve heightened emotions, the idea thatthere is a special place where traumatic memories are locked in is not supported by memory science. • There is no reliable way to distinguish a true memory from a false memory; some people with false memories of traumatic eventscan develop PTSD as a result of belief in that memory. • There is a difference between suppression and repression; thoughts are suppressed, not memories, that is, a person can make aconscious decision to suppress or not think about something. • The idea of repressed and then recovered memories (traumatic memories being locked away and inaccessible until a triggeringevent occurs) is a remnant of Freudian psychology, and while it finds some support among clinicians and non-empiricists (people whodo not do scientific research), it has no empirical basis after more than 80 years of experimentation and thus is not founded in memoryscience. [124] According to Dr.

Strange, there are 4 or perhaps 5 stages to creation of a false memory: • First, there is a suggestion, either external or internal, that something happened; an example of an external suggestion would be averbal prompt from someone else that something might have happened, while an internal suggestion might be a search for an explanationfor a feeling or occurrence, or a dream. • Second, there is plausibility, where the suggestion is supplemented or built on real memories, that is, based on what the personactually remembers, details or supporting information are supplied to make the suggestion plausible; in other words, some details of falsememory may be accurate because in order to flesh out and create a false memory, it must be fed with things that are real. • Third, there is an autobiographical belief stage where the person comes to believe that the event actually happened. • Fourth, there is a memory construction phase where the detail of the story, narrative or memory is fleshed out with details fromactual experience so that the memory looks and feels like a real memory. • Finally, there is a source monitoring error whereby misattribution occurs such that the erroneous reconstruction mistakenlybecomes a memory. [125] The stages do not have to take place in a particular order.

A false memory can take shape through an activity known as“memory work” in which the person undertakes a reconstruction exercise. It is the process by which the person works out whathappened. Memory work may involve just thinking about the supposed event, looking for confirmatory evidence such as photographs,talking to other people, imagining, journaling or any kind of writing activity, and thinking about the time sequence of events. [126] Dr. Strange described one of her own experiments involving the natural progression of memories in children.

She reported thatin the younger group of 5 and 6-year-olds, the children were not likely to remember the clothing they wore on a certain day, whetherspontaneously or when asked, while with the 9 and 10-year-old group, the children were more likely to remember. Dr. Strange made thestatement that children under the age of 9 to 10 are not encoding much about the clothing worn at the time of an event.

When challengedon cross-examination that the experiment did not involve 7 and 8-year-olds and thus she could not say what 7 and 8-year-olds mightremember in terms of clothing, she replied that as the quality of memory is progressive, one would not expect the 7 and 8-year-olds toperform better than the 9 and 10-year-olds. Voir Dire Ruling [127] I appreciate the Crown's position that there is a "judicial pecking order," as it were, and that I must have due regard to the Courtof Appeal's decision in the SKM case.

SKM is a decision in this very case, and -- but for that decision -- the Crown would be taking amore vigorous position regarding admissibility and, indeed, has alerted me to contrary authority at the Ontario Supreme Court level. [128] Nonetheless, the test for admissibility of expert evidence, of course, is found in the off-cited R v Mohan, (SCC), [1994] 2 SCR 9 and consists of two steps.

First, the proposed expert evidence must meet full conditions of admissibility; andsecond, the trial judge, as the evidentiary gatekeeper, must determine whether the probative value of the proposed evidence exceeds theprejudicial effect. The four conditions in stage one are: relevance, necessity, absence of any exclusionary rule, and a properly qualifiedexpert. [129] The SKM case focused mainly on the second element, that of necessity, and for certainty, I'll confirm that this is the Court ofAppeal decision that directed this retrial to occur.

The Court of Appeal points out the distinction between credibility and reliability of thecomplainant's evidence, and notes that Dr. Strange's evidence relates not to credibility but rather to reliability and is relevant to theDefence theory that the complainant's memory and belief regarding the sexual assault, no matter how fervently and genuinely held isfalse, and, therefore, unreliable. [130] Dr. Strange's evidence regarding the nature of memory, how human memory works and how false memories can be generated,of course, lie at the core of the Defence theory.

The purpose of the evidence is to allow the trier of fact to assess reliability against thebackdrop of understanding how human memory works and the phenomenon of false memory. The evidence is not proposed to be anopinion that the complainant's memories are false, which question is ultimately left to me, as the trier of fact.

[ 131 ] I accept from the voir dire evidence that the proposed evidence meets the necessity criterion and that the subject matter is such that ordinary people are unlikely to form a correct judgment about the topic without assistance from an expert. [ 132 ] The Court of Appeal pointed this out at para 68 of its decision.

I heard again during the voir dire , with respect to the research that was done regarding the beliefs of typical people, that at least the 2000 Americans who were surveyed with regard to the nature of memory held misconceptions. [ 133 ] Secondly, this is a case where the expert would provide information outside the experience and knowledge of the trier of fact, who is me in this case, and the technical nature of the information does require an explanation so that I can properly understand it. [ 134 ] So, to quote from the Court of Appeal, at para 76, which I think captures the essence of why the evidence is necessary for the Defence: The appellant's defence hinged on the need for Dr.

Strange's testimo

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