R. v. Walker, 2022 ONCJ 5

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(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 victim of the right to make an application for the order; and (

b) on application made by the victim, 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. Walker , 2022 ONCJ 5 DATE: January 6, 2022 BETWEEN: HER MAJESTY THE QUEEN — AND — DANYIEL WALKER GARDINER- HEARING RE: UNCHARGED CONDUCT

Before Justice Berg Released on January 6, 2022 L. Tansey.............................................................................................. counsel for the Crown M. Davies........................................................................................................ for the defendant I. Carter................................................................................................................ Amicus Curiae Berg J.: Introduction [ 1 ] Danyiel Walker has pleaded guilty before me to a large number of offences.

Simply put, he has admitted to instances of sexual assault, sexual touching of a person under the age of 14 years, inviting a person under the age of 14 years to touch him for a sexual purpose, sexual touching while in a position of trust or authority, exposing his genitals to a person under the age of 16 years, committing an indecent act with intent to insult, permitting a person under the age of 14 years of age to be on a premises for the purpose of engaging in prohibited sexual activity, voyeurism, making available sexually explicit material to a person under the age of 16 years, distributing child pornography, possessing child pornography, accessing child pornography, and making child pornography.

There are four named victims. The offences are said to have occurred over the period from 2004 to 2019. As a result, the Crown is seeking to have him declared a dangerous offender. The Crown wishes to adduce certain evidence of uncharged conduct as facts in aggravation at this sentencing hearing. This evidence consists of three video-taped statements to the police made by MP, a 14 year old boy, as well as two statements that were written down by people conversing with MP on other occasions but which MP did not review afterwards. Mr. Walker is opposed to the admission of these five statements.

We thus find ourselves in what is referred to as a Gardiner- hearing. [ 2 ] Should said facts be proven, they would then form part of the factual corpus which could be considered by the forensic psychiatrist during the preparation of their report to the court. It is to be noted that the Crown must prove these facts in aggravation beyond a reasonable doubt: see, s. 724(3) (

e) Criminal Code . [ 3 ] This hearing proceeded at the same time as the initial part of the sentencing proper. However, it was understood that the admissibility of the evidence of uncharged conduct had still to be decided and that even if found to be admissible, it remained to be seen if that evidence would be found sufficient to prove that conduct beyond a reasonable doubt. [ 4 ] These allegations of uncharged conduct were brought to the attention of the police through the quite remarkable efforts of MP. Mr. Walker had been arrested on the allegations of child pornography on January 30, 2019.

Then, on February 22, he was arrested on the charges of sexual assault, etc., the victims of those offences having come forward in the interim. There is no evidence before me that MP was aware, prior to his disclosure of the uncharged conduct, of the initial arrest and the nature of those charges. There is no evidence before me that MP became aware, prior to his disclosure of the uncharged conduct, of the nature of the allegations behind the second set of charges for which Mr. Walker was arrested.

To be clear, by ‘evidence’ I mean either direct evidence or evidence from which a permissible inference could be drawn. [ 5 ] On February 8, 2019, Ottawa Police were requested to attend at a pediatric palliative care facility. The day before, one of the children there, MP, had requested to speak to a particular staff member. When that person came to his room, he asked his mother to leave so he could speak to the worker in private. As I shall discuss in a moment, MP cannot communicate without assistance. Even with assistance, it is a slow and laborious process.

Nonetheless, it became apparent that MP wished to say something about Mr. Walker. He expressed some concern about the fact that Mr. Walker was no longer visiting him. Mr. Walker was known to MP and his family as he, Walker, had had a child who had used the services at that same facility. Unfortunately, that child died. However, Mr. Walker continued to attend there afterwards and would engage with MP during his visits. The conversation ended with the staff noting that MP was clearly upset. The staff and MP’s parents were aware that Mr.

Walker was in custody on the child pornography charges. [ 6 ] On February 8, MP requested to speak again to staff members in the absence of his mother. Once again, the process of communication was slow and difficult for MP. He expressed to the staff that he was afraid of Mr. Walker. The staff members tried to find out why. It transpired that it had something to do with the word ‘penis’. It was subsequent to this that the police understandably were called. A formal interview was conducted by Det.

Archibald on February 12; I have included, as an appendix, the transcript of this interview to illustrate the manner in which any conversation with MP must proceed. Three days later, early on February 15, MP’s mother sent an email to the Ottawa Police detectives involved in the case indicating that MP wished to speak to them again. The officers attended and conducted a second interview that same day. A few days later, on February 19, MP’s mother contacted the same officers to advise that MP wished to speak to them once again.

That interview was conducted on March 4. [ 7 ] MP was assigned a sexual assault counsellor as a result of what he had disclosed. The Crown wishes to adduce statements made by MP at two of the counselling sessions: those of March 15 and 25, 2019. [ 8 ] At the time that he disclosed the present allegations, and indeed up to the present day, MP’s ability to communicate facts is entirely reliant on someone serving as a facilitator. To be clear, MP’s difficulties in communicating are not the result of an intellectual deficit; his intelligence is intact. He cannot speak or write or type.

However, with the assistance of a facilitator, the following methods

are utilized to allow him to express himself. [ 9 ] The first method is the use of ‘Yes/No’ cards. An exhibit explains how this is done. - MP communicates with his right arm and hand - Use one hand to hold below his elbow (toward his hand) to support his arm (This allows MP to better control his movement) - Use your other hand to hold the Yes/No cards in his eyesight and in his arm’s reach - When talking to MP ask Yes/No questions.

Please give him time to answer, it can sometimes take time to get a concrete answer because of his twitching - If you are unsure of his answer please ask him again to confirm - If MP wants your attention he will point his right index finger, or he may hit you with his arm To answer a question, MP will point to one of the two cards. The evidence before me is that beyond the binary Yes/No answers, MP will sometimes allow his finger to hover between the cards thereby indicating that he is uncertain. At times, the person asking the questions may try to get MP to spell out the word of which he is thinking.

MP will use the Yes/No cards to indicate when the letter he is thinking of has been mentioned (see the Appendix for an example of this process). This process is slow and difficult. MP appears to be spelling words out phonetically. It is clear that he sometimes has difficulty and has to respell a word. [ 10 ] MP can also communicate, in a sense, by means of facial expressions. The expressions serve to convey emotion. [ 11 ] The instructions refer to ‘twitching’. The twitches are actually the result of seizures. MP has many seizures of varying intensity every day.

One witness noted that one cannot be with MP for ten minutes without seeing him have a seizure. As well, it is important to note that MP suffers from chronic pain as a result of his physical disabilities. He is bedridden. [ 12 ] During the police interviews and the March 15 and 25 counselling sessions, MP was being assisted by facilitators who knew him well and had experience in communicating with him. I wish to say that I have no concerns about the manner in which the facilitation was conducted. I note here that the video recordings of the police interviews are evidence before me.

As well, the facilitators involved in all the communications of MP that were adduced at this hearing were subject to cross-examination. [ 13 ] The Ottawa Police conducted the first interview of MP on February 12, 2019. MP confirmed that he had advised staff at the facility that he was afraid of Mr. Walker and that the word ‘penis’ was involved in the reason for the fear. Mr. Walker had asked MP to keep a secret about something that had occurred at the facility. Mr. Walker had talked to MP about touching MP’s penis, however, he did not do so. Mr. Walker showed MP his own penis. Mr.

Walker saw MP’s penis; I note that MP would not have had the physical ability to expose his own penis by manipulating his clothing or the bed covers. Mr. Walker showed him images of child pornography. Mr. Walker took a picture of MP’s penis. Mr. Walker put his penis into MP’s mouth and took a picture of himself doing so. There was another child, CL, present in the room when this occurred. [ 14 ] The second police interview of MP was on February 15, 2019. He confirmed that he had asked his mother to have the police reattend as he had more to tell them about Mr. Walker. Mr.

Walker had threatened him with death more than once. MP reiterated that Mr. Walker had put his penis in MP’s mouth. He saw Mr. Walker expose his penis to CL and take pictures of CL. MP saw Mr. Walker hurt CL.’s bum and penis. Mr. Walker put his penis into CL’s bum. The interview ended with the following question and answer: Q. MP, I just wanted to ask you something before I go. Is everything you told me today the truth? A. Yes. [ 15 ] CL was 11 years old at the time of the investigation. The evidence before me is that he lives with a multitude of health issues. I will not list them all.

Of particular importance to these proceedings is the medical evidence from which one can conclude that he would be unable to communicate at this or any other hearing. Global developmental delay is a general term used when a child has delays in cognition and physical development. When children are born prematurely, some suffer a brain injury. CL has suffered a severe injury to his brain and his development has been impacted both cognitively and physically. The brain injury has affected his vision and hearing which further complicates the ability to determine his level of cognitive functioning.

CL does not function at the level of his age for cognition and physical function. He is unable to communicate verbally; however, he can express sounds that can express distress, pain and laughter. It was noted that he has bilateral retinal detachment. “This results in complete blindness, with no ability to recover his vision.” He has had a cochlear implant for hearing impairment.

However, “[i]t is unclear how much CL can understand; however, the parents have noted some reaction to sounds, a new development, since the device was put in place.” [ 16 ] The medical report before me concludes that CL does not have the ability to respond to questions and “it would be impossible to know whether CL would have any understanding of why he is in court.” [ 17 ] The final police interview was conducted on March 4, 2019. During the course of that session, MP indicated that Mr.

Walker had told him that he would do something to CL if MP did not cooperate with him. [ 18 ] I referred earlier to the fact that MP underwent sexual assault counselling after having disclosed the allegations about Mr. Walker. During one session, that of March 25, 2019, MP discussed his embarrassment at having had an erection at some point when Mr. Walker was sexually assaulting him. Contrary to what he had indicted to the police, he told the counsellor that Mr. Walker had touched his, MP’s penis with both his hands and his mouth. MP also told the counsellor that Mr. Walker commented on the fact that MP had an

erection and said that MP liked what he was doing to him and that MP liked him. [19] The Crown submits that MP’s statements are admissible by means of alternative routes. Ms. Tansey submits that the evidence ofMP is presumptively admissible through the application of s. 723(5) Criminal Code. Should I find that that

section is not applicable orthat the proposed evidence fails that statutory test, then it would be admissible as a principled exception to the hearsay rule. Given thepresence of possible statutory authority that may be dispositive on the issue of admissibility, s. 723(5) will be our starting point. [20] The

section reads as follows:

(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice,compel a person to testify where the person (

a) has personal knowledge of the matter; (

b) is reasonably available; and (

c) is a compellable witness. It is found in

Part XXIII of the Criminal Code, the part that deals with matters of sentencing. Those sections of the Code dealing withdangerous offender applications (i.e.,

section 752ff.) are not found in that Part; it is

Part XXIV that deals with “Dangerous Offenders andLong-Term Offenders”. Nonetheless, it is clear that a dangerous offender application is to be viewed as a sentencing process and,therefore, s. 723(5) can be considered in the present context. There is binding authority to that effect. The unanimous Ontario Court ofAppeal held in R. v. Williams, 2018 ONCA 437 at paragraphs 47-49, that [47] It is well established that the strict rules of evidence applicable at trial do not govern sentencing proceedings.

Once guilt has beenestablished beyond a reasonable doubt, the task of the sentencing judge is to tailor a sentence that is appropriate to the particularcircumstances of each offender. For that reason, the sentencing judge “must have the fullest possible information concerning thebackground of the [offender]”: R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, at p. 414. [48] A dangerous offender proceeding is part of the sentencing process and is governed by the same sentencing principles, objectivesand evidentiary rules: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 53; R. v.

Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357,at para. 23; R. v. Jones, (SCC), [1994] 2 S.C.R. 229, [1994] S.C.J. No. 42, at pp. 279, 294; R. v. Ziegler, 2012 BCCA353, [2012] B.C.J. No. 1755, at para. 7, leave to appeal refused, [2014] S.C.C.A. No. 491.

As explained by Gonthier J. in Jones, at p.290, the importance of the sentencing judge having access to the fullest possible information about the offender is heightened in thecontext of a dangerous offender application: In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range ofinformation in order to determine whether there is a serious risk to public safety. If there is, the dangerous offender sentencing allows thejustice system to more precisely tailor the actual time served by the offender to the threat that he poses to society.

The overriding aim isnot the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. [49] As with any sentencing hearing, hearsay evidence is admissible so long as it is found to be “credible and trustworthy”: Gardiner,at p. 414. This common law principle is codified in s. 723(5) of the Criminal Code. [21] Ms.

Tansey takes the position that s. 723(5) establishes a regime of presumptive admissibility and that the Court of Appeal inWilliams was in both in error and in obiter when it referred to a threshold requirement that the hearsay evidence had to be found to be“credible and trustworthy” in order to be admissible. I make two observations. First of all, the reference to “credible and trustworthy”appears under the rubric of “Did the sentencing judge err in admitting the police synopsis?”. To my mind, the above-cited passage fromparagraph 49 of Williams is not obiter; we are well within the ratio decidendi.

Secondly, other appellate courts have made similarcomments (e.g., R. v. Pahl, 2016 BCCA 234 at paragraph 54; R. v. Piche, 2006 ABCA 220 at paragraph 15, leave to appeal dismissed,[2007] S.C.C.A. No. 17; R. v. VanEindhoven, 2020 MBCA 123 at paragraph 14; ). The Québec Court of Appeal in Montour c.

R., 2020QCCA 1648 stated at paragraph 49 [translation] “In effect, while hearsay can constitute admissible evidence during sentencing, the judgeretains a large discretion as much in regards to the admissibility of such evidence then as to the weight it can be given.” Thus, it wouldnot appear that the Ontario Court of Appeal in Williams misstated the test. [22] There is, however, other appellate language that could possibly support the Crown’s position here. For example, the majoritydecision of the Supreme Court of Canada in R. v.

Bingley, 2017 SCC 12 states that [12] The purpose of s. 254(3.1) confirms that a DRE’s opinion is not automatically admissible at trial. Section 254(3.1) gives the policeinvestigative tools to enforce laws against drug-impaired driving. It does not dictate whether evidence obtained through the use of thoseinvestigative tools will be admissible at trial. When Parliament intends to make evidence automatically admissible, it says so expressly:see, e.g., Criminal Code, ss. 723(5) (hearsay evidence) and 729(1) (analyst certificate on conditional sentence breaches).

Assection 254(3.1) does not speak to admissibility, the common law rules of evidence apply. This remark is in obiter and it predates the Court of Appeal decision in Williams. While I do not know the grounds of appeal to theSupreme Court in Williams, leave to appeal was dismissed ([2019] S.C.C.A. NO. 164). My operating assumption is that the Court ofAppeal in Williams was aware of the language of the Supreme Court in Bingley. Furthermore, the majority in the Supreme Court decisionof R. v.

Lévesque, 2000 SCC 47 held at paragraph 30 that “hearsay evidence may be accepted at the sentencing stage where found to becredible and trustworthy” citing R. v. Gardiner. On its own, this use of the word ‘accepted’ might be taken to refer to ultimate use asopposed to admissibility. However, the balance of the paragraph makes it clear that the context is indeed admissibility: This relaxation of the rules is explained by the fact that the judge must determine the appropriate sentence for the accused, and to do so

must have as much information as possible about him. In my view, the Palmer criteria do not compromise the more flexible nature ofthe rules relating to the sources and types of evidence on which judges may base their sentences. The criteria concerning the admissionof fresh evidence on appeal do not relate to the sources and types of evidence and do not demand that the strict rules of a trial apply tofresh evidence proffered on an appeal from a sentence.

To be admissible, the fresh evidence need only be relevant and credible and,when taken with the other evidence adduced at trial, be expected to have affected the result. [23] The defence takes the position that the statements of MP are not admissible. I need not dwell on this submission as it clearly fliesin the face of s. 723(5) and the relevant law. Should I find the evidence to be credible and trustworthy, it would be admissible. Is the Hearsay Evidence of MP admissible? [24] In order to determine admissibility, I must first examine whether the statements in question are credible and trustworthy.

Giventhe nature of the potential evidence and the significant effect its admissibility might ultimately have on my decision in the presentdangerous offender application, I find that it would have been in the interests of justice for the Court to have required the Crown to provethe admissibility of MP’s statements by means of a reasonably available and compellable person or persons with personal knowledge ofthe matter; here: the making of the various statements.

This is exactly what occurred during the voir dire and it is important to examinewhy. [25] For the reasons that I have just outlined, MP would not have been available to testify at this sentencing; I note that Mr. Davieshas explicitly and quite properly stated in submissions that the defence is ultimately not taking a position to the contrary. That MP couldnot testify is the reason that the Crown has had to seek recourse to s. 723(5); the hearsay was necessary in the sense that that word is usedin the principled exception to the hearsay rule.

The various witnesses called by the Crown on this application were to deal with the issuesof necessity and threshold reliability. [26] In her alternative submission on the admissibility of these statements, Ms. Tansey referenced the principled exception to thehearsay rule. I agree that the principled exception to the rule is relevant but, I think, not as an alternative to s. 723(5). Rather, it isinherent in that section.

Where one party seeks to adduce hearsay evidence at sentencing, and the Court decides that requiring theadducing party to establish that the disputed hearsay is admissible would be in the interests of justice, it is the application of theprincipled exception test based on necessity and reliability that applies. ‘Reliability’ here refers to threshold reliability and, unlikeultimate reliability, is subject to a test on the balance of probabilities. [27] Briefly, in regards to the first part of the test: necessity. The evidence before me is that MP cannot realistically be expected totestify at this hearing.

Therefore, I find that the hearsay evidence that the Crown seeks to adduce is necessary. [28] Next, I need to make a threshold determination whether the potential evidence of MP is reliable. The Supreme Court of Canadain R. v. Bradshaw, 2017 SCC 35 has provided guidance. [26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability.Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty oftesting it” (Khelawon, at para. 49).

These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsaydeclarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify thespecific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v.Hawkins, (SCC), [1996] 3 S.C.R. 1043, at para. 75).

The dangers relate to the difficulties of assessing the declarant’sperception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they havebeen overcome. [27] The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequatesubstitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees thatthe statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30). [28] Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declaranthas not “state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination” (Khelawon, atpara. 63).

These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of thehearsay statement (Khelawon, at para. 76; Hawkins, at para. 75; Youvarajah, at para. 36). Substitutes for traditional safeguards include avideo recording of the statement, the presence of an oath, and a warning about the consequences of lying (B. (K.G.), at pp. 795-96).However, some form of cross-examination of the declarant, such as preliminary inquiry testimony (Hawkins) or cross-examination of arecanting witness at trial (B. (K.G.); R. v.

U. (F.J.), (SCC), [1995] 3 S.C.R. 764), is usually required (R. v. Couture, 2007SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95). In this respect, I disagree with the Court of Appeal’s categorical assertion thatsafeguards relevant to assessing procedural reliability are only “those in place when the statement is taken” (para. 30).

Some safeguardsimposed at trial, such as cross-examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing theevidence. … [30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy(Youvarajah, at para. 30; R. v. Smith, (SCC), [1992] 2 S.C.R. 915, at p. 929).

To determine whether the statement isinherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates orconflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55). [31] While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee oftrustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930).

Rather, the trial judge must besatisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to theprocess” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’sjurisprudence. Substantive reliability is established when the statement “is made under circumstances which substantially negate the

possibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical cautionwould look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is“unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whetherthe statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likelyexplanation is that the statement is true (U. (F.J.), at para. 40). [32] These two approaches to establishing threshold reliability may work in tandem.

Procedural reliability and substantivereliability are not mutually exclusive (Khelawon, at para. 65) and “factors relevant to one can complement the other” (Couture, atpara. 80). That said, the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome thespecific hearsay dangers it presents (Khelawon, at para. 49). [29] It has not been suggested that MP was not credible when he made his statements to the police or during the counselling sessionsand I have seen nothing in the evidentiary record to suggest to me that his credibility might be in question.

There is nothing to suggestthat MP was being dishonest with the police nor is there anything to suggest that MP was disingenuously recounting something that hehad not observed but had somehow heard other people discussing. Mr. Davies cross-examined some of the witnesses called on this voirdire specifically on this latter point. Thus, as credibility will not be challenged during the analysis of ultimate reliability, it can beassumed for the purposes of determining threshold reliability. This still, however, leaves the question of whether I can assess MP’stestimonial capacities absent cross-examination.

By testimonial capacities, I am referring to MP’s ability to observe, recall, and recountthe alleged actions of Mr. Walker. Are there adequate substitutes for cross-examination such that I can rationally evaluate the accuracy ofMP’s statements? [30] I find that in the case of the three statements to the police, there are such adequate substitutes as the Crown has shown that therewas procedural reliability. The three statements were video-recorded. The facilitators during the statements were called to testify andwere cross-examined at length.

Thus, the mechanism by which MP communicated could be seen on video and explored by thequestioning of the people involved. Other witnesses testified as to the manner in which MP brought these allegations to the attention ofthe police. While the statements were not made while MP was under oath, he was asked by the detective, during the second interview,“Is everything you told me today the truth?” to which he answered in the affirmative. MP should have been asked this question at each ofthe interviews.

That he was not, however, is perhaps understandable given the complexity of the situation confronting the interviewingofficers (see, for example, Appendix A). MP was not warned of the consequences of not telling the truth during those interviews. Givenhis situation, I am not sure what meaningful consequences could be brought to bear on him.

But given that there is no suggestion thatMP was not telling the truth, given that he was asked on one occasion whether he was telling the truth, given that the other twostatements to the police were dealing with the exact same subject matter, given the fact that the three interviews were video-recorded,and given that the facilitators were cross-examined, there are sufficient culminative indicators to allow me to find that the Crown hasestablished threshold reliability in regards to the three police interviews.

In other words, I find that I will be able to assess ultimatereliability of MP’s evidence on the basis of these three statements (see R. v. Rowe, 2021 ONCA 684 at paragraph 78). [31] This conclusion is supported by an analysis of the substantive reliability of those three statements. There is no evidence that MPwas aware at the time he made those statements that Mr. Walker had been charged with child pornography offences or that he was beinginvestigated on allegations of sexual assault and similar offences against other children. There is no likely motive here for MP to havelied to the police and Mr.

Walker has pleaded guilty before me to similar behaviour with other children. [32] I do not come to the same conclusion concerning the other two statements that the Crown seeks to adduce here: the statements ofMarch 15 and 25, 2019 from the sexual assault counselling sessions. Those statements were not video-recorded and neither was reducedto writing during the counselling sessions themselves. Each statement was typed out from memory by the facilitator later on the sameday. Obviously, all involved in these two sessions were aware that Mr.

Walker had been charged with child pornography and childsexual assault offences and that MP had disclosed the present allegations. I find that the Crown has not established the thresholdreliability of these two statements. Ultimate Reliability: Has the Crown Proven Beyond a Reasonable Doubt the Uncharged Conduct? [33] The uncharged conduct alleged by MP against the accused is of sexually assaultive behaviours, incidents of threats, incidents ofexposing himself, and, as well, the making and showing of child pornography. MP alleges that both he and CL were the victims of Mr.Walker’s alleged actions.

I will deal with the evidence concerning each alleged victim separately commencing with CL. However, I wishto first deal with the issue of when these acts are alleged to have occurred. [34] The evidence before me is that MP “can’t tell time nor gets access to a calendar frequently.” Thus, he could not provide thepolice with a specific date for the allegations. The interviewers, knowing of MP’s love of televised team sports, asked him questionsabout certain teams.

As a result of these questions and answers, the Crown adduced evidence at this hearing that MP and CL were bothstaying at the facility on a specific date in 2018 when the Ottawa Senators were in the playoffs and the Toronto Blue Jays hadcommenced their season. There is, however, other evidence before me that the Senators did not make the playoffs that year. But there isevidence before me that MP and CL were both at the facility on that specific date and others in 2018 as well as 2016 and 2017. [35] In this case, I think little turns on whether the Crown has proven an exact date or dates.

What is important is whether MP, CL,and Mr. Walker could have been at the facility at the same time. The evidence is that MP and CL were both staying at the facility onspecific dates in 2016, 2017, and 2018. The evidence shows that Mr. Walker attended the facility on occasions during at least some ofthat time period. MP disclosed the allegations in February of 2019. The passage of time and his difficulty with time and dates wellexplains MP’s confusion about the hockey team. I note as well that MP was 14 years of age at the time he made the statements.

I cannotassess his evidence in the same manner as I would that of an adult. Particularly apposite here is the following passage from paragraph 27of R. v. WR, (SCC), [1992] SCJ No. 56: [e]very person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by referenceto criteria appropriate to her mental development, understanding and ability to communicate.

Fourteen is not particularly young. However, a relevant factor in this analysis was the difficulty that MP has in determining dates. [ 36 ] I turn now to the evidence concerning the allegations of acts against CL. The totality of MP’s evidence is the following from his second police statement, that of February 15, 2019. At this point in the interview, it had been determined that MP was somehow concerned about Mr. Walker and CL. He then had a seizure. Once the seizure was over, the interview continued. Q. Okay. Are you worried for CL. A. Yes. Q. Did someone else try to hurt CL other than Dan? A. No.

There was then a pause while MP had another seizure. Then, Q. … MP, did you see Dan hurt CL? A. Yes. Another seizure. Q. MP, you said you, you saw what Dan did to CL, Is that … A. Yes. Q. … correct? Okay. I want to find out what Dan did to CL. A. Yes. Q. Is that why you wanted to talk to me today is to tell me about CL? A. Yes. Q. Okay. Are you worried for him? A. Yes. Q. Okay. Did Dan touch CL? A. Yes. Q. Okay. Did Dan touch CL in a good way? A. No. Q. Did Dan touch CL in a bad way? A. Yes. Q. Did you see what Dan did to CL? A. Yes. Q. Okay. Did Dan show his penis to CL? A. Yes. Q. Okay. Did Dan see CL’s penis?

Not sure. Okay. Did Dan take pictures of CL with his camera? A. Yes. Q. mm-hm. Did he take pictures with his cell phone of CL? Ooops. A. Yes. MP is then asked a series of questions to determine where at the facility the incident occurred. He identified a particular room. He was asked whether there was anyone else in the room at the time beside the accused, himself, and CL to which he answered in the negative. The interview continued. Q. Okay. MP, is there something else you want to tell me about Dan and CL? A. Yes. Q. Is it about something that Dan did to CL?

A. Yes. Q. Did Dan hurt CL’s feet? A. No. Q. Did Dan hurt CL’s legs? A. No. Q. Did Dan hurt CL’s bum? A. Yes. Q. Okay. Did Dan hurt CL’s penis? A. Yes. Q. Did Dan hurt CL’s stomach or tummy? Did Dan hurt CL’s stomach? A. No. Q. Did Dan hurt CL’s head? A. No. Q. Did Dan put his penis in CL’s mouth? A. No. Q. Did Dan put his penis in CL’s bum? A. Yes. Q. Okay. Did this happen with Dan and CL more than one time? Q. Do you know? A. No. [ 37 ] Once again, I will state that there has been no suggestion that MP was anything but credible when making his statements to the police.

However, I have a concern here about his reliability when it comes to this narrative of allegations with respect to CL. My decision must be based on the evidence and not subject to speculation. I do not know what specifically MP saw that leads him to believe that, for example, Mr. Walker inserted his penis into CL’s anus. Witnesses will testify that they ‘saw’ something occur and sometimes that is literally accurate.

However, sometimes what they are actually saying is that they saw or heard something that led them to infer that the thing in question occurred and they then can be questioned about how they came to make that inference. In the present case, I am unable to ascertain whether MP saw or whether MP inferred what he says Mr. Walker did to CL. The issue of ultimate reliability must be decided on a standard of beyond a reasonable doubt.

On the evidentiary record before me, I am of the opinion that the Crown has not proven the allegations concerning CL to that standard. [ 38 ] On the other hand, I do not have those concerns about much of what MP says the accused did to him. I will deal with each of the allegations in turn: that Mr. Walker exposed his genitals to MP; that Mr. Walker showed child pornography to MP; that Mr. Walker made child pornography by taking a picture of MP’s penis and by taking a picture of himself inserting his penis into MP’s mouth; that Mr. Walker inserted his penis into MP’s mouth; that Mr.

Walker touched MP’s penis; that Mr. Walker threatened to kill MP; and that Mr. Walker threatened to hurt CL if MP did not cooperate with him. [ 39 ] MP did tell police that there were multiple occurrences. However, I am unable to determine from the evidence if any of the individual acts occurred on more than one occasion. I am also unable to determine which acts occurred on the same day as others. [ 40 ] Mr. Walker exposed his genitals to MP : It is MP’s uncontradicted and credible evidence that he saw Mr. Walker’s penis. On the basis of the evidence before me, I find that Mr.

Walker exposed his penis to MP. [ 41 ] Mr. Walker showed child pornography to MP : It is MP’s uncontradicted and credible evidence that Mr. Walker’s showed him pornographic pictures of children. On the basis of the evidence before me, I find that Mr. Walker did so. [ 42 ] Mr. Walker made child pornography by taking a picture of MP’s penis and by taking a picture of himself inserting his penis into MP’s mouth : While I accept MP’s uncontradicted and credible evidence that Mr.

Walker did something to make him believe that he was taking these pictures, I cannot find beyond a reasonable doubt that the accused actually did so. The Crown has not proven these allegations beyond a reasonable doubt. Moreover, MP’s evidence was confused regarding whether Mr. Walker actually took the picture of MP’s penis. [ 43 ] Mr. Walker inserted his penis into MP’s mouth : It is MP’s uncontradicted and credible evidence that Mr. Walker inserted his penis into MP’s mouth. On the basis of the evidence before me, I find that Mr. Walker did so. [ 44 ] Mr.

Walker touched MP’s penis : MP’s evidence on this point appears to be contradictory. At one point during the February 12

interview, he said that Mr. Walker did not touch his penis. A bit later during that same interview, the detective asked him “When Dan touched your penis, could you feel that he was doing that?” to which MP replied in the affirmative. Leaving aside the issue of the question having been predicated on an erroneous understanding by the officer, the Court is left with inconsistent statements. I find that the Crown has not proven these allegations to the necessary standard. [ 45 ] One further point on the issue of inconsistent statements.

I am aware that MP told his mother that nothing had happened between him and the accused. It is clear from the evidence that MP was lying to his mother in an effort to protect her. My analysis did not rely to any extent on what he told his mother. [ 46 ] Mr. Walker threatened to kill MP : It is MP’s uncontradicted and credible evidence that he was threatened by Mr. Walker. On the basis of the evidence before me, I find that Mr. Walker did so. [ 47 ] Mr. Walker threatened to hurt CL if MP did not cooperate with him : It is MP’s uncontradicted and credible evidence that that threat occurred.

On the basis of the evidence before me, I find that Mr. Walker did so issue that threat. [ 48 ] In conclusion, the Crown has proven the following behaviours by Mr. Walker: - That he exposed his penis to MP; - That he showed child pornography to MP; - That he inserted his penis into the mouth of MP; - That he threatened to kill MP; - That he threatened to hurt CL if MP did not cooperate. [ 49 ] I will not be sentencing Mr. Walker for this uncharged conduct. These facts will be admitted at this sentencing and are to be applied to an analysis of Mr.

Walker’s future risk. [ 50 ] I wish to thank MP for the exceptional courage he showed in advising the staff and then the police about Mr. Walker. Released: January 6, 2022 Signed: Justice Berg APPENDIX CA. Denotes Detective Carrie Archibald, Investigating Officer, speaking TC. Denotes Officer Tami Casselman speaking MP. Denotes declarant speaking (in Italics, by way of signing). DS. Denotes [name redacted – DS.], staff member, interpreting for . MP . NG. Denotes [name redacted – NG. ] speaking CA. …me coming in and talking with you. Um, my friend, Tami, is over on the other side of the bed.

Tami is on the other side of the bed. NG. She’s beside me. CA. And she is… DS. You can… TC. Yeah, I’m right here.

DS. (Speaking to NG): Do you want to put that rail down for her? Thanks . NG . . CA. So, she’s here and she’s going to listen into the conversation. Are you okay to talk to me today? DS. So, he can’t answer through this one… CA. Okay. DS. …so we’ll just wait a second. CA. Okay. DS. Deep breaths, . MP TC. (Inaudible). CA. Me. TC. Well, we’ll (inaudible). DS. Good job. CA. We have to (inaudible). NG. It’s okay. DS. K. NG Good boy. DS. You’re doing a good job, . MP . . NG. Just breathe. DS. Your numbers are good (banging sound in background). NG. Just breathe. Just breathe, honey. Okay. DS. Good breath.

Are you able to answer? CA. (Inaudible). DS. That’s okay. Take your time. NG. It’s okay. Your numbers are okay, sweetie. Oh, this is a big one, eh? CA. (Inaudible) maybe we’ll just stop for a couple… DS. Yes. CA. …of minutes, if he wants me to. DS. Would you like her to keep going? MP. Yes. CA. Yes. Okay. TC. Just keep your voice up. CA. So, . MP . , um, just so you, so you know, my name, my name is Carrie and these ladies here will say my name if they want me to stop for a couple of minutes, okay? And Tami is over on the other side of you. Um, so, I’m talking with… NG. It’s okay, sweetheart. DS. Mm-hm. CA.

He’s okay? Um… DS. That was a clear yes. CA. Yes. DS. (Laughs).

CA. So, . M . , I don’t… is your last . P . ? Am I saying… DS. Yeah. CA. …that right? Okay. So… DS. (Laughs). CA. …I wanted to talk to you and find out some more on what happened. Okay? Are you going to be able to help me out today by explaining it to me the best way you can? Yes. MP. Yes . CA. Okay. Were you ever asked to keep a secret? MP. Yes . CA. Okay. TC. What was the answer? DS. Yes. CA. Yes. Did anyone ever threaten you? You don’t know? MP. Yes . CA. Yes. Okay. Did anyone ever touch any part of your body? Do you want me to ask differently? We’re not sure. Okay. NG. Hold on. Just give him a moment. Okay.

Can we ask again, . MP . ? DS. So, he’s just visibly upset, so. CA. Okay. Okay. DS. Can she asked again, . MP . ? MP. Yes. CA. Yes. Okay. NG. Okay. It’s okay. DS. We’re safe . MP . . CA. When, when you told the ladies here the other day, did you tell them the words of scared, Dan, penis? MP. Yes . NG. Mm-hm. CA. Okay. That’s… I want to talk to you about that. Okay? You said that you were asked to keep a secret. I want to know who asked you to keep a secret. MP. Yes . CA. Okay? Is it… did you tell your, the nurses or the ladies here who that person was that asked you to keep a secret? MP. Yes . CA. Okay.

I want you to be able to tell me who that person is. How would we spell that out? DS. So, . MP . , are you okay if I do our verbal alphabet? MP. Yes. NG. And you can spell for us? Yeah. CA. Okay. DS. Or is it okay if I do that? CA. Yeah. DS. Okay. So, . MP . . is the first letter of the name an A, B, or C?

MP. No. CA. Okay. DS. D, E, or F? MP. Yes. CA. Okay. DS. D? MP. Yes. CA. Okay. DS. Do you know the second letter of the name? MP. Yes. DS. Okay. Does it, is it an A, B, or C? MP. Yes. DS. Is it… MP. (Grunts). DS. …an A? MP. Yes. CA. Okay. DS. Do you know the next letter of the name? NG. It’s okay, sweetie. MP. Yes. CA. Yes. Okay. DS. Is it an A, B, or C? MP. No. DS. D, E, F? MP. No. DS. G, H, I? MP. No. DS. J, K, L? MP. No. DS. M, N, O? MP. Yes. CA. Okay. Are you trying to tell me that the person that asked you to keep a secret was Dan? MP. Yes. CA. Okay. TC. That’s a yes? CA. Yes. DS. That’s a yes. CA. Okay. So, I’m going to ask you some questions about that.

NG. Okay. (Inaudible). CA. Um, . MP . , you’re doing a great job. DS. Good job, buddy. CA. And I’m proud of you. Does he need a minute? Do you need a minute? NG. Do you want to take a break, sweetheart? MP. No. NG. Okay. CA. Okay. DS. Good job, . MP . . CA. Did Dan talk to you about touching your penis? MP. Yes. CA. Okay. Now . MP . . did he touch your penis? MP. No. CA. No. Okay. When he talked to you about touching your penis, did he show you his penis? MP. Yes. CA. Okay. TC. Yes? CA. Yes. Did he show you someone else’s penis? Ye… Oh, sorry. NG. Can you answer that again, sweetheart? CA.

Did Dan… He showed you someone else’s penis? MP. Mm-hm. CA. Okay. Did that happen here, at the facility [name of facility redacted], . MP . ? MP. Yes . CA. Yes. Okay. NG. Good job. CA. Okay. NG. It’s okay, sweetie. DS. Keep beathing. CA. It’s okay. NG. (Inaudible). CA. When…? NG. Okay? CA. Did Dan see your penis, . MP . ? MP. Yes . CA. Yes. TC. Yes? CA. Okay. Okay. DS. We’ll just give him a second.

CA. Yup. TC. Mm-hm. NG. You’re okay. TC. I’m just going to, uh… NG. It’s okay, sweetheart. TC. …shut it off… CA. I think you can… You want to leave it? Or, it’s up to you. Do you want me to leave the camera going or…? DS. Yeah. CA. I think it’s… NG. Can we…? CA. …good to see him… DS. You may want to… NG Yeah, could we… DS. …ask that question again. NG. …ask him if, if, if there’s… CA. Oh. NG. …anything else that he wants to tell you? CA. . MP . , is there anything else that you want to tell me? MP. Yes. CA. Okay. Now, I can wait a few minutes, okay? NG. Yeah. There’s no rush, sweetie. CA.

We’ll let you have, let you have some time. MP. No. DS. You want her to keep going? CA. Do you want me to keep going? MP. Yes. CA. Okay. DS. I’m just going to fix your leg. CA. Did Dan… You said that it, that this happened here, at the facility [name of facility redacted] . MP. Yes. CA. Did Dan come into your room? MP. Yes. CA. Okay. Did that ha… did Dan come into your room one time or more… Sorry. Did Dan come into your room more than one time? MP. Yes. CA. Okay. TC. Is, is that yes? CA. Yes. DS. It was. Mm-hm.

CA. I’m sorry Tami. Uh, Detective, uh, Casselman. Yes. Um, did Dan show you pictures of penises with a camera? NG. No . MP. No. CA. Okay. He… Dan showed you pictures of other people’s penises, I think you told me. Was the pic… the pictures of penises of other children at the facility [name of facility redacted] ? MP. Clear Yes. CA. Yes. Okay. NG. Okay, sweetheart. It’s okay. Good boy. CA. Would you be able to tell me if you knew who those children were that he showed you the pictures of? Like do you know who those children were in the pictures? (Inaudible) want clarification? DS. He’s hovering. So, he’s thinking.

Do you need her to rephrase it or ask differently, . MP . ? Do you not know? MP. Yes. CA. Okay. So, you saw, you saw pictures of penises, but you do not know who the children were? MP. Yes. CA. Correct. Okay. Um, did Dan take a picture of your… any of your body parts? MP. No. CA. No. Okay. Did he tell you he wanted to take a picture of your penis? MP. Yes. CA. Okay. Okay. TC. That’s a yes? CA. Yes. DS. Mm-hm. CA. MP , how many… did Dan have one talk with you about picture, taking a picture of penis or…? MP. No. CA. No. Was it more than one conversation or chat? MP. Yes. CA. Yes. Okay. Okay. DS. Good job.

NG. (Inaudible). TC. You’re doing great, . MP . . DS. Do you want… CA. You’re doing such… DS. …to keep your leg up? \ CA. …a good job. MP. Yes. DS. Okay. NG. Sweetie… CA. Okay. DS. Do you need a break? NG. …do you need a break, honey?

MP. No . CA. Okay. NG. Okay. It’s okay. It’s okay. CA. Um, Tami? Do you have any…? TC. Instead of phrasing it in regards to the camera, perhaps raise it with a cell phone. CA. Okay. . MP . , did Dan take a picture of you at any time with his phone? MP. Yes. TC. Yes? CA. Yes. Did Dan take a picture of any of your body parts with a cell phone? MP. Yes. CA. Okay. Would the body parts be of your penis? MP. Yes. TC. That’s a yes? CA. Yes. Okay. NG Okay, sweetie. CA. I think (inaudible). TC. Did he touch him? NG. It’s okay, sweetie. CA. Did Dan touch your penis, . MP . ? MP. No. TC. No? CA. Okay.

Did Dan ever talk about wanting to touch your penis? MP. Yes. CA. Yes. Okay. Did Dan ever talk to you about putting his penis in your mouth? Rephrase? TC. Did he put… did he put…? CA. Did Dan put your penis in his mouth? MP. No. CA. No. Did you… TC. Did Dan put his penis…? CA. Did Dan put your penis… his penis in your mouth? MP. Yes. CA. Okay. Okay. Alright. What about, um, timeframe? Does he… NG. (Inaudible). CA. …understand January (inaudible). Okay. . MP . , I’m just trying to figure out if… sometimes, I lose track of time… DS. He may not know the month… CA. Okay.

DS. …but he would know if it was – and MP , you can tap no if I, if I’m wrong – uh, he would know if it was recently or a while ago. NG. Or even to use the word this admission.

DS. Yeah, like if you connect it with when he’s… CA. Okay. DS. …been here. CA. So, since you’ve been here around Christmastime, has Dan come to visit you? MP. Yes. CA. Yes. And did this happen since you’ve been here this time, since this admission? Is that yes? MP. Yes . DS. Mm-hm. CA. Did it happen since you’ve been here this, this time, this last admission? DS. Do you need a break? MP. Yes. CA. Okay. NG. Okay. CA. Okay. DS. We’ll take a break (inaudible). CA. We’re just going to take a break and I’ll step outside and talk to Tami. TC. Yeah. CA. Okay? TC. I’m just going to stop this… CA. You can turn it off.

TC. …now and I’ll restart it when we come back in. NG. Okay. CA. . MP . … (Tape cuts out at 00:16:40.0 and then restarts). TC. Recording now. CA. Okay. So, it’s the… NG. It’s okay. CA. …12 th of February 2019. Case number XXX . My name is Detective Archibald and I’m with . MP . . (Inaudible). TC. (Inaudible), yeah, absolutely. CA. . MP . ? DS told me that this is hard on you, for you. And I believe you. I want you to know that I believe you when you tell me this. And this is not your fault, okay, buddy? Okay? I believe what you’re saying. And nobody is angry with you. And nobody is upset.

And I think you’re very, very brave for having told somebody. It takes a lot for someone to be brave enough to tell that something has happened. And I have adults that come in to talk with me and they find it hard to be brave. And you’re so brave. What’s he saying? Yes? DS. He’s saying yes… NG Yeah. DS. …to everything you just said. CA. You know you’re brave. TC. Incredibly brave. CA. And we’re so proud of you, because we know this is hard. I have a couple of more questions to ask you. Is that okay if I talk to you?

MP. Yes. CA. Okay. You’re so lucky to have these girls here. Because they care so much about you. And they’re so helpful to me. Um… DS. (Laughs). MP. Yes . CA. Yeah. DS. (Laughs) CA. (Laughs/everybody laughs). Um, did Dan rub your penis? Hovering? Did… When Dan touched your penis, could you feel that he was doing that? Do you want to ask the question? DS. He answered yes. CA. He answered. You could feel it. Okay. DS. Is it taking you a little bit longer to answer, . MP . ? MP. Yes. CA. Okay. When Dan put his penis in your mouth, did he take a picture of that? TC. With his cellphone, perhaps? CA.

With his cell phone? MP. Yes. NG. Mm-hm. CA. Okay. TC. Yes? CA. Okay. DS. A strong yes. CA. Strong yes. Did, did Dan rub his penis in front of you or make a movement with his penis in front of you? MP. No. CA. No. Okay. Okay. Was anybody else in the room when Dan showed you his penis? MP. Yes. CA. Okay. TC. Yeah. CA. You said there was another person in the room when Dan showed you his penis. Was it, uh, a child here, at the facility? [name of facility redacted] MP. No. CA. Okay. Would you be able to tell me who that person was that was in the room with him? MP. Yes. NG. Yeah. CA. Yes. Okay.

So, I’m going to let… NG. And can he, can you spell it? CA. …you spell, can you spell it? MP. Yes. CA. Okay. DS. Does it start with an A, B, or C?

MP. No. DS. D, E, F? MP. No. DS. G, H, I? MP. Yes. DS. Was it a G? (Inaudible). CA. Mm-hm. DS. Was it a G? NG. Was it a G? DS. Was it a G, MP ? MP. Yes. NG. Sorry, I’m just going to wipe your eyes, okay? DS. Do you know the la… the next letter of the name? MP. Yes. DS. Is it an A, B, or C? MP. Yes. DS. Is it an A? MP. Yes. DS. Do you know the next letter? MP. Yes. DS. Is it an, A, B, or C? MP. No. DS. D, E, F? NP. No. DS. G, H, I? MP. No. DS. J, K, L? MP. No. DS. M, N, O? MP. Yes. DS. Is it an M? MP. Yes. DS. Is there another letter? MP. Yes. DS. A, B, C? MP. No. DS. D, E, F? NG. Yes .

MP. Yes. DS. D? MP. Yes. DS. Is there another letter? MP. Yes. DS. Is it, A, B, C? MP. No. DS. D, E, F? MP. No. DS. G, H, I? MP. No. DS. J, K, L? NG. J, K, L. DS. My alphabet’s awful. MP. Yes. NG. Yes. DS. J? MP. No. DS. K? MP. No. DS. L? NG. Yes . DS. Is it okay if he sees what you’ve written down? NG. Yeah, I was just… CA. Mm-hm. NG. …going to suggest that… CA. Can you take the white board? NG. …it helped us… DS. Yeah. NG. …the last time. DS. Yeah… CA. Yeah? DS. Do you want to see what you’re spelling currently, to see if you’re right? NG. Okay. Are you okay if I just write down the letters? CA. Yeah.

Do you want to do it on the… is there two sides to it? Cuz… DS. You can erase… CA. …you’d have to… DS. … that if you want to.

CA. Okay. DS. NG , you can erase all that stuff. NG. Erase it? Okay. CA. I have G-A-M-D-L. TC. That’s what I had as well. CA. Okay. NG. Okay. CA. G-A-M-D-L. Put that higher so it looks like a… Thank you. There we go. NG. (Laughs). DS. Okay, bud. NG. Okay, man. DS. This is what you’ve spelled so far, okay? NG. These are the letters that you’ve spelled so far. Is the first letter correct? Is it right? MP. No. NG. No? Should we change this one? MP. Y es. NG. Okay. DS. Is it supposed to be an A, B, C? MP. Yes. DS. An A? MP. No. DS. B? MP. No. DS. C? MP. Yes. NG. Okay. So, it starts with C. Is the… MP. Yes.

NG. …next letter A? MP. Yes. NG. Is the next letter M? MP. Yes. NG. Is the next letter D? MP. No. NG. Okay. CA. Mm-hm. NG. Take the D away. DS. Okay. Is an A, B, or C? MP. No.

DS. D, E, F? MP. No. DS. G, H, I? MP. No. DS. J, K, L? MP. No. DS. M, N, O? MP. No. DS. P, Q, R? Is that a real alphabet? MP. Yeah. DS. Is it a P? MP. Yes. CA. I have C-A-M-P so far. NG. Okay. What’s the… is the next letter L, sweetheart? MP. No. NG. Okay. Should we take the L away? 00:27:26.0 MP. Yes. NG. Yes. Okay. DS. Is it A, B, C? MP. Yes. DS. Is it an A? MP. No. DS. A B? MP. Yes. NG. Sweetie, is there another letter? MP. Yes. NG. Okay. DS. Okay. Is it A, B, or C? MP. No. DS. D, E, F? MP. Yes. NG. Okay. DS. A D? MP. No. DS. An E? MP. Yes. NG. Okay.

TC. Yes? DS. Yes. Is that… NG. Okay? DS. …right so far? NG. Does that look right? MP. Yes. NG. Yes . Okay. Is there another letter, sweetie? MP. Yes. CA. Can you show the camera what that says so far? TC. Okay. CA. Okay. Good job, MP . NG. What other letter, sweetie? DS. Is it A, B, or C? MP. No. DS. D, E, F? MP. No. DS. G, H, I? MP. No. DS. J, K, L? MP. Yes. CA. Okay. DS. Is it a J? MP. (Coughs) . DS. We’re just going to have… NG. Good cough. DS. …wait. We have to suction him. NG is going to turn the suction on. (Loud noise). He’s going to swallow it. CA. Hm. DS. All gone. NG. Good job, eh? DS. Sorry. CA.

He looks a little cold. His, his arms are… DS. Are you cold? CA. Cuz he’s also got goosebumps. NG. Hm. Do you want me to put you, put a blanket on, sweetie? MP. Yes. (Beeping sound). DS. That’s just your sensor saying that it’s off, MP . NG. Mm-hm. DS. That’s why it’s beeping at us.

CA. There we go. DS. Okay. CA. I see that you have goosebumps, and I don’t want you to be cold, MP . DS. Is that better? MP. Yes. CA. Okay. DS. So, J, K, L? MP. Yes. CA. Okay. DS. A J? MP. No. DS. A K? (beeping sound). NG. Do you want to see it again? CA. I thought you said that letter. Yeah. NG. It’s okay. We’re almost done, sweetie. DS. You’re doing really well, honey. NG. Just have to finish this one, okay? DS. Is it a K? MP. No. DS. An L? MP. Yes. NG. Okay. CA. Okay. NG. I guess we’re done. CA. Mm-hm. DS. Mm-hm. CA. Okay. Okay. I just want to see what that said. Can I say that out loud? NG. Yeah. CA.

You wrote, um, you told us to write CL . MP. Yes. CA. Okay. Okay. Thank you, MP . NG. What a good (inaudible). MP. (Grunts). NG. It’s okay. It’s just seizure. DS. A big seizure, so. CA. Okay. DS. …you’ll need to exit. NG. (Inaudible).

CA. Yeah. NG. Okay. CA. We’ll leave you alone… DS. Okay. Yeah. CA. …for a couple of minutes. TC. We’re just going to shut this off again. DS. Yes. CA. Mm-hm. DS. Thank you. (Tape cuts out at 00:31:01.0 and then restarts). DS. Yeah, okay. CA. MP ? DS. I’m just going to move it. CA. MP , you are not in trouble. You did not get CL into trouble. Okay? I know you’re probably worried about that. You did not get CL into trouble, okay? If anything, you’re helping CL , because I want to make sure that Dan doesn’t hurt anybody else anymore ever again, or any other child … MP. Yes . CA. …or adults. Okay?

I know you’re… this is long, and I’m not trying to make it difficult. So, I’ll try to get to my questions, and if you want to stop, you, you tell us. MP. Yes. NG. Okay. CA. When this happened with Dan, did it happen in your room? NG. (Beeping sound).I’m sorry guys. MP. No. CA. Okay. So, you’re going to have to tell me, help me as far as rooms here. DS. Okay. CA. Cuz you said that this happened at the facility? (Beeping sound). At the facility? MP , did this happen at the facility with with Dan? [name of facility redacted] MP. Yes. DS. Did this happen at your (inaudible) home? NG. He’s so tired. CA. Mm-hm. NG.

Sweetie. TC. Carrie, maybe rephrase it, did anything like this ever happen at your home? CA. Did anything like this ever happen in your home with Dan? Okay. Did Dan put his penis in CL’s mouth? Getting tired? DS. Are you tired, MP ? Do you not know? MP. Yes. NG. He said he… DS. He said no. NG. …doesn’t know. CA. Okay. Okay. Um, I wanted to talk about MP where Dan did this here, at the facility, but I don’t know the rooms. So, could you?

DS. Yeah. CA. Okay. DS. Um, did Dan do this in the playroom? MP. No. DS. In the living room? Living room with the fireplace? MP. No. DS. The “S…” Room. MP. Yes. TC. What is it called? DS. It’s the “S…” Room. TC. “S…” Room? NG. Mm-hm. CA. Okay. Okay. Did… when you saw Dan’s penis, did anything come out of his penis that you saw? MP. No. NG. No . CA. Okay. Okay. Anything…? Um, in the “S…” Room, did it happen more than one time? MP. No. CA. Okay. And we still don’t know when it happened. NG. No. CA.

Are you able to tell me, MP , if this happened with Dan during the time that you’ve come to the facility for this admission? [name of facility redacted] MP. No. CA. Okay. Okay. TC. Okay? CA. Um... TC. Is, is there anything that, anything else that he might want to tell us? CA. Is there anything else you want to tell us, MP ? MP. No. NG. No . TC. No? CA. Okay. NG. MP , do you want them to come back another time? CA. We’re done. NG. You’re done? Okay. CA. Mm-hm. MP. No. DS. (Laughs). NG. Because…

DS. You like them. You should (inaudible) (laughs)… NG. Yeah, no, it’s just… TC. (Laughs). CA. I get it. NG. Yeah. DS. He put yes. He said yes, he likes you (laughs). NG. I’m just wondering if any… CA. Okay. NG. …wanted to say more, but. Yeah. TC. Okay. So, it’s, it’s, uh, 12:49. So… CA. It’s 12:49 and we’re… TC. I’m just going to CA. …we’re done… TC. …we’re going to conclude it… CA. …interviewing. TC. …and shut it off. CA. Yeah. NG. Okay. MP. Yes. *End of Interview*