R. v. K.D., 2023 ONCJ 601

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. K.D., 2023 ONCJ 601 DATE: August 10, 2023 COURT FILE No: 20-1328 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HIS MAJESTY THE KING -AND- K.D.

Before Justice M. G. March Heard on April 19, 20 & 21, May 2, 3 & 5, June 30 and August 5, 9 & 10, 2022 Reasons for Judgment released on August 10, 2023 Teresa James………………...……………………….…….Counsel for the Provincial Crown Jon Doody………...…………………………………………………………….Counsel for K.D. March, M.G., J. : Introduction: 1 . The accused, K.D., stands charged that between January 4, 1983, and December 31, 1984, in the County of Renfrew, Ontario, he did:

a) commit a sexual assault on J.D. contrary to then

section 246.1 of the Criminal Code of Canada (“the Code ”), and

b) as a male person, have sexual intercourse with J.D., a female person, not his wife and under the age of fourteen years, contrary to then section 146(1) of the Code . 2 . At the conclusion of the evidence and while making submissions, defence counsel requested and Crown counsel conceded that no evidence of sexual intercourse had been adduced at trial. Accordingly, I will dismiss the charge of having sexual intercourse with a female under 14 laid against K.D. 3 . K.D. also stands charged that:

a) between the 4 th of January, 1983, and the 31 st day of December, 1987, he did commit sexual assault on H.D. contrary to then

section 246.1 of the Code , and

b) between the 8 th day of May, 1979 and the 31 st day of December, 1985, he did commit

an act of gross indecency with H.D. by intentionally exposing himself for a sexual purpose contrary to then

section 157 of the Code . 4 . At the outset of trial, defence counsel admitted the identity of K.D. as the accused before the Court, as well as the Court’s jurisdiction to hear the matter. 5 . K.D.’s trial then proceeded over the course of ten days. 6 . As with so many criminal trials, the outcome of this case turns primarily on an assessment of the credibility and reliability of the witnesses called to testify, and to a lesser extent, the opportunity and possibility for collusion amongst Crown witnesses. The Relevant Evidence J.D. 7 .

Counsel agree that J.D. testified to eleven specific incidents of attempted or actual inappropriate, sexual touching of her person by her paternal uncle, K.D., when she was a young child roughly between five and seven years of age. 8 . When J.D. began giving her evidence on April 19, 2022, she was 45 years old. She was born on […], 1977. She was residing in Eganville, Ontario, where she had been living since December 2011.

9 . She spent many years of her young adulthood living in Calgary, AB. She has two young adult daughters in their 20s, who continue to live near Edmonton, AB in St. Albert. 10 . Her parents, W.D. and L.D., raised her in Renfrew County, ON. She has two older brothers, H.D. and Jo.D., two younger sisters, R.D. and K.-A.D., and a younger brother, I.D. J.D. is the third oldest amongst her siblings. 11 . Her memories of the incidents forming the subject matter of the charges before the Court began when she was living with her parents, two older brothers and younger sister in a bungalow in H[...] Township, ON. 12 .

She had a general recollection of the attached garage being used to store wood for heating. There was no cement floor. Rather, the bay door of the garage would open to a gaping hole into an unfinished basement. 13 . She explained that when one entered the front door of the house, one could take the stairs to the left and down to her father’s workstation, or up and to the right into the kitchen to enter the dwelling area of the house. 14 . There were three bedrooms. Her parents’ bedroom was at the end of a hallway. There were two bedrooms on the left and a washroom on the right. 15 .

Initially, her older brothers shared one of the bedrooms on the left, and her sister and she the other. The boys and girls were supposed to be separated, but when the lights went out, there could be movement back and forth between bedrooms. There were no assigned beds. 16 . The living room led out into the hallway. She described what she called “cubbies” or bunks located in that room too. 17 . Nearby, she remembered that there was a lumberyard called Timbertown. 18 . She believed she was in Grade 2 when her family moved into the H[...] Township home in the winter. 19 .

The accused, K.D., and her grandmother, B.B., came to stay with her family there. B.B. took over the girls’ room. 20 . K.D. was her father’s younger brother. In giving her testimony, she described him as “... my uncle. He was loved, and we trusted him.” 21 . She did not know if K.D. slept in their family home. He had no room of his own, but he began babysitting her two older brothers, her younger sister and her around this time. 22 . She explained that both her parents worked, her father at Timbertown and her mother either as a waitress or a retail worker. The Bathtub : 23 .

The first time that J.D. remembered being inappropriately touched by K.D. was when she was in a tub naked and taking a bath. He was supposed to be tending to his babysitting duties. He was washing her. He touched the nipples on her chest. He rubbed her bottom and her vagina. He used his finger to try to stimulate her sexually. She started screaming. 24 . She believed she was seven years old at the time, because she had her eighth birthday in Eganville. 25 . She stated that K.D. was in the bathroom with her to molest her. Typically, no one helped her bathe but her mother.

K.D. put Sunlight soap on his fingers and put them inside her vagina. It burned. It hurt her, and she yelled. 26 . She recalled that someone interrupted what K.D. was doing to her by knocking on the bathroom door. She did not know for certain who it was. She heard the person outside the door speaking as well. 27 . K.D. panicked. He climbed up on the toilet and jumped out the bathroom window. She saw him use a dirt bike to get away as she stood up. 28 .

She indicated that she never disclosed what happened because K.D. had told her that her siblings would be taken away from her, and her parents would go to jail, if she did. 29 . Afterwards, she remembered that she got into trouble because there was a soapy mess made in the bathroom. Much of the soap was wasted. She was asked why she used so much. Her family was not rich. She just sat back and listened to the criticism. 30 . J.D. indicated that there was no real ‘bath time’ routine for the children. 31 . The first person who she told about the incident was her younger sister, R.D.

They were playing a spinning game. J.D. stopped and told her what happened, but she did not think her sister understood her. 32 . J.D. added that her parents were not home at the time. Her siblings and she did not have to have permission to take a bath. When she chose to have one, she could. 33 . She did not know if she decided to have a bath, or if someone ran the tub for her. She allowed that it was possible for K.D. or her grandmother to have run the tub for her. 34 . Her memory included K.D. washing her hair, her vagina, her bum and her boobs. In doing so, he was kneeling beside the tub. 35 .

When referred to the statement she gave to police about this incident on June 8, 2020, J.D. agreed that she indicated that K.D.

brought her into the bathroom. However, she explained that she did not want to remember the incident. She retorted, “I know K.D.’s dick was in my mouth. I don’t care if he gets off.” 36 . She was sure that K.D. was in the bathroom with her. He was supposed to give her a bath. 37 . She could not be sure who came to knock on the door. She offered that it could have been one of her three siblings or her grandmother. 38 . Nor could she remember who came into the bathroom after knocking. She reaffirmed that upon hearing someone at the door, K.D. “Spider-Manned” his way out the window. 39 .

She acknowledged that she told police K.D. told her, “Shut up and don’t speak.” 40 . However, while testifying, J.D. did not have a memory of him speaking those words to her as he left the bathroom. 41 . She was nevertheless sure that he did climb out the window above the toilet. He did so headfirst diving out the window. 42 . At that point in time, she explained, K.D. was a tiny, skinny guy. 43 . She added, “It was happening.” She could hear the noise of him running across the driveway, starting the dirt bike and dirt kicking up as he drove away. She could see the back of his head.

She still had soap on her. 44 . J.D. did not tell anyone about what happened. She was ashamed. 45 . She clarified that the person who was knocking at the door did not ask her anything about what had occurred. When K.D. was there with her siblings and her without her parents present, he would be responsible for babysitting them, not her grandmother. 46 . K.D. gave evidence that he lived at the H[...] Township home with J.D. and her family for a period of time when he was working with J.D.’s father, W.D., at Timbertown. He shared a bedroom with his mother, B.B. 47 .

K.D. denied that he ever had a bedroom in the basement. To his recollection, there was only the furnace and oil tank down there. The wood for heating the home was kept stacked in a shed outside. W.D. did not have a workbench in the basement. 48 . K.D. testified that he never babysat J.D. and her siblings when he lived with them in H[...] Township. His mother, B.B., would on occasion. 49 . He did not remember the D. children ever taking baths when the parents, W.D. and L.D., were not at home. He emphasized that 99.9% of the time, their parents were there. 50 .

He was adamant that he never helped the children when they were taking a bath. That simply did not happen. 51 . K.D. stated that he did not, at any point in time, jump out the window of the bathroom. He was not even sure if there was a vanity in the bathroom, or if there was a bathroom window above the toilet. 52 . K.D. further indicated that there was never an occasion when he fled the residence using a dirt bike. The Dirt Bike Ride: 53 . J.D. recalled that while the family was living in H[...] Township, K.D. would occasionally take her two older brothers and her for dirt bike rides.

As children, they would be placed on the back of the bike and would be driven away one at a time. The vehicle could accommodate one adult and one child. 54 . There had been several rides, but she remembered, with certainty, one incident. 55 . While with K.D., they rode into the bush and stopped in a beautiful little green space like a cove. He parked the bike there. 56 . She pointed out how he could be so charming and nice. He acted as if he were her boyfriend in the prelude to sexual touching. He would move her hair or rub her face. 57 . Usually, he would be kneeling in front of her. 58 .

J.D. explained that he had to work to get his hand down there. Her shorts were not unbuttoned. They stayed on her body. 59 . She subsequently thought he helped her in removing her shorts and shirt. He guided her on what to do. She did not know if she was completely naked. She later testified she did not get fully naked. 60 . She explained that she was having a “complete blank.” If they were alone, she offered, it was a chance for ‘full on’ touching with no clothes. When there were people around, K.D. touched her quickly and over the clothing. 61 . He put his fingers down her shorts.

She recalled that she was wearing a white/cream T-shirt with red and blue bands on its sleeves. He touched her under and over her clothing and made skin to skin contact. While it was happening, she stared into the bushes. She added that a lot of the times when he was done with her, she was not functioning. 62 . On this occasion, K.D. did not have a shirt on. He wore tacky, cut off shorts.

63 . It ended when K.D. finished “doing his thing”. They then just went home. 64 . K.D. testified that he once owned a Suzuki 250 dirt bike which he kept at the H[...] Township residence. His brother, W.D., had a Honda 750 dirt bike. Other visitors to the residence also had dirt bikes. He named five other males who would visit the home, and who rode dirt bikes too. 65 . K.D. admitted that occasionally, he would take one of the children for a ride on his dirt bike. However, he only ever did so in the company of others.

He denied that he ever took J.D. for a ride with just him on a dirt bike where they stopped at a clearing in the woods. Timbertown Hayloft: 66 . J.D. recalled an incident when it was just K.D. and her in a hayloft at Timbertown. At times, there would be kittens there. 67 . She could not remember how her bottom came to be bare, but she did remember the hay stabbing her skin. 68 . She had no recollection of K.D. touching her on that occasion. 69 . She added that there were so many times she was on the dirt bike alone with K.D. 70 . To the contrary, K.D. testified that he never took the children to Timbertown.

He was never in a hayloft with J.D. there. 71 . He did, however, recall seeing the kids play there on occasion. J.D.’s Parents’ Bedroom: 72 . J.D. gave evidence that there was a time when she was hiding under the covers in her parents’ bed. It was nighttime. It was black outside. Her parents were away from the home. She had gone for a glass of water before getting into her parents’ bed. 73 . She explained that something her siblings and she knew as children was that K.D. would be their babysitter. He was a young man at that time. Her parents were young adults. 74 .

She was wearing a nightgown, which buttoned up to her neck, and underwear. She “assumed” that he took her clothes off because she felt skin on skin contact. 75 . She went into her parents’ bedroom thinking K.D. would not do anything to her there. She believed that if she was in there, he would not dare. She believed her grandmother was home at the time as well. 76 . She explained that K.D. would flip her over on her face, if she resisted. He would have her lay on her stomach and cross her ankles. He would then “hump” her. He would push her face into the pillow. If she moved, he would push harder. 77 .

J.D. heard the door creak. She thought it was her parents. It was K.D. He got into the bed with her. He faced her as he climbed in. She believed it was the first time he taught her what “humping” was. 78 . He had her cross her legs and he “humped” her. He took his “little penis” and did his “thing”. He was naked. 79 . She explained that it started with touching her vagina with his fingers. He also touched her body and her bottom. He had her roll onto her stomach and made her cross her legs. He pushed his penis between her tight legs and her bum.

He placed his hand where her shoulder and the back of her neck met. 80 . She was not trying to be defiant. Nor did she kick, scream or try to fight back. 81 . She did not know if this was a “cleanup” time. She added that she did not know as a child what “humping” or “ejaculate” was, but she did recall times in the basement and at his sister’s house when he wiped up “his cum”. 82 . To her recollection, it was rare that he did “finish”. 83 . She did not recall whether he said anything to her on the occasion in her parents’ bedroom. She always thought he was a “monster”. Her “kid brain” made him 10 feet tall. 84 .

He left the room. She stayed. She did not know where he went after he molested her. 85 . She believed that she would lose her family. The police would arrest her parents because they were away, and their children would be taken from them, because they did not stop him from hurting her. 86 . J.D. could not remember whether she fell asleep after K.D. left her parents’ bedroom or whether she stayed awake. When her parents returned, she slept with them. She was crying. She just wanted them home, but she never told them what had happened. 87 .

Initially, J.D. did not know if this was the occasion when she was suffocated by the pillow. She later recalled that that was a different time when she was at her aunt Y.’s place. 88 . When K.D. gave his evidence, he stated that he would only enter W.D.’s and L.D.’s bedroom, if W.D. asked him to help with moving, for example, dressers around. He had no reason to be in their bedroom otherwise. 89 . He denied that there was ever an occasion where he was in their bed with J.D. He emphasized that he was never alone with the children at night because one of her parents would always be home.

90 . He did nevertheless agree that there was no rule that the children were not to be alone with him. 91 . He denied “100%” that he ever touched J.D. sexually. The Animal Enclosure: 92 . J.D. gave evidence that when her family lived in the H[...] Township residence, they kept ducks, chickens and rabbits in a penned area. Basically, it was a shed. It had a dirt floor. There was also a tiny pond. 93 . She explained that an adult would have to “duck” to get in there. 94 . She recalled an occasion when she went into the enclosure. She was tending to the animals as part of her chores. K.D. followed her. 95 .

He was kneeling in front of her. He started to touch her, but she was able to escape. It did not last long or become sexual in nature. 96 . She offered that her memory with respect to the details of this incident was limited. 97 . K.D. testified that the shed was roughly 5.5 x 5.5’ in its dimensions. It had a roof. J.D.’s family, her grandmother, B.B. and he would use it for harvesting eggs. 98 . He did not have any chores or responsibilities connected to the animals. He did not take care of them. 99 . He did recall, however, that the children would play in there and water the animals on occasion. 100 .

He denied that he ever groped J.D. while alone with her in the enclosure. The Garage/Basement Incident: 101 . J.D. remembered that in the H[...] Township home, there was a lot of wood stored in the basement. She was down there “messing around,” or doing chores. K.D. was touching her again under her clothes. She did not recall how he came to be there. She was by her father’s workbench. 102 . She recognized her grandmother’s gait, as she approached the basement door. Later, she gave evidence that she was starting to doubt herself about whether she heard her grandmother coming down the basement stairs. 103 .

According to J.D., her grandmother, B.B., opened the door. She saw what was occurring. She then shut the door and knocked on it. J.D. believed that B.B. did not tell her parents, W.D. and L.D., what was happening. K.D. panicked and moved J.D. away as he heard B.B. approach. 104 . In detailing what K.D. did to her, J.D. stated that he called her over to him. He first positioned himself kneeling in front of her with his hands on her arms. She later testified she was mistaken about K.D. kneeling in front of her. 105 . They were facing one another. She was still dressed at that point.

He moved his hands down to her butt and vagina area. He was touching her over her clothing. He touched her vagina over her clothing. He was undoing her pants and had started to take them off. 106 . J.D. noticed that her friend, C., went by the door in the far corner of the garage. It was possible to see out the door. K.D. was facing it. She was facing away from it. They knew C. was coming. J.D. was able to use her peripheral vision to notice a change in the light as if someone had walked past. The door was 10 feet upward and away from them. She was able to identify C. through a small gap. 107 .

She remembered performing oral sex upon him. She recounted kneeling in front of him and the scents of the wood and the dirt. When challenged that she told police the first time she performed oral sex upon him was when her family was living in Eganville, she clarified that that was the first time he came in her mouth and made her throw up. She added that she did not remember honestly what she had testified to the previous day in Court. She was under a “little stress”, but there were two times he made her perform oral sex upon him. 108 . She recounted that K.D. had little cut off jean shorts.

He took his penis out of his zipper. She was then kneeling and he was standing. He held her head. He then stopped her and he was listening. Her mouth did not come off his penis. He would not allow her to remove her mouth. 109 . J.D. described C. as a 10-year-old neighbour kid with curly Scottish hair, who mostly hung out with her older brother, H.D. J.D. recollected that C. had the biggest hair. It was roughly a foot tall. 110 . C. did not come into the basement/garage open area. She went to the front door. 111 . When her grandmother came to the basement door, K.D. had not ejaculated.

He used an old rag or towel that her father had for woodworking to wipe her face. It may have been her tears he wiped away. 112 . J.D. was challenged about how she had stated on an earlier occasion that K.D. was not able to clean her up. He just sent her out. She allowed for the possibility that he provided her with the towel to clean herself up before she left the basement. 113 . Both J.D. and K.D. then went upstairs. J.D.’s grandmother took her by the arm into the kitchen. K.D. was there as well. Together they told her to tell C. she was not allowed to be her friend anymore.

C. was to leave and not come back. 114 . Next, J.D. saw C. inside the front door. C. was putting on her shoes and tying them. She was crying. She left and did not come

back. 115 . K.D. and her grandmother were telling C. that she could no longer come to their H[...] Township home as well. 116 . J.D. thought that she was saved. She assumed that C. saw what was happening as an eight-year-old child, and she would go home and say something about what K.D. was doing to her, but that did not happen. 117 . J.D. ran into C. many years later at a Kmart store in Renfrew. They both cried upon seeing one another. J.D. added that one of her daughters is named after C.. 118 . They did not talk about what C. may have witnessed many years before.

C.’s parents were close by and eager to leave. 119 . K.D. testified that he also remembered a girl who lived nearby in H[…], but he did not know her name. He just knew her to see her. There was never an occasion when he saw that girl leave their house crying. 120 . He denied that he sexually assaulted J.D. in the basement. He denied that wood was ever stacked and stored down there. He believed that the furnace for the H[...] Township home burned oil. 121 . Lastly, he denied that his mother, B.B., came down into the basement and interrupted what he was doing to J.D.

Nor did B.B. or he ever tell the neighbour girl that she cannot come to the H[...] Township home anymore. The Sleepover at Aunt Y.’s House in Eganville: 122 . After her family moved from H[...] Township, they took up residence on J. Street in Eganville. J.D. recalled that her aunt Y. and her uncle H., lived nearby on Q. Street. 123 . J.D. would occasionally visit and play with her three female cousins similar in age to her, namely, N., D. and C., the children of Y. and H. 124 . J.D. remembered one occasion where she was having a sleepover with her three cousins on a mattress in one of the bedrooms at their Q.

Street home. 125 . By this point, J.D.’s uncle, K.D. and her grandmother, B.B., were also living at the Q. Street residence. 126 . During the night of the sleepover, K.D. entered the room where J.D. was sleeping with her cousins and tried to pick her up. She testified that she woke up when he did this. She just knew it was him. 127 . Her cousin, N., awoke as well and wrapped her arms and legs around J.D. For years, J.D. thought it was D., not N., who came to her aid. 128 . To J.D.’s recollection, K.D. stood on N.’s head and pulled her arm. Eventually, he gave up and left without taking either J.D. or N. 129 .

J.D. believed that K.D. took N. later during the night. J.D. could not clearly remember if he came back to the room a second time where she was sleeping with her cousins. 130 . J.D. explained that when she woke up again after having fallen asleep, N. was gone. 131 . K.D. testified that he lived in his sister Y.’s home in Eganville for half or three quarters of a year. 132 . The exterior of their house was yellow in colour. It had three bedrooms. 133 . His mother, B.B. occupied one, and he had a single bed just off of it on a landing. Y. and her husband, H., had another bedroom.

The third was shared by their daughters, who all slept in a big bed. 134 . K.D. could not recall J.D. ever coming over for a sleepover. He denied that he ever tried to take J.D., or one of Y.’s children, from the bedroom where they slept. He pointed out that their bedroom was right beside their parents’. Forced Oral Sex: 135 . Within a couple of months of the alleged incident involving K.D. trying to take her from her cousin’s bedroom, J.D. remembered going to the area where he slept at her aunt Y.’s place. She was not sure if he shared the room with B.B. there. 136 . It was dark.

She remembered it contained a little bed set. There were no windows. If there were, they were covered. 137 . It was a time when she thought aunt Y. was there in the house. J.D. prayed that aunt Y.’s husband, her uncle H., would come into the room where she was with K.D. 138 . On this occasion, J.D. recalled K.D. telling her to get down on her knees. He was playing with himself. She resisted at first his attempt to put his penis in her mouth. 139 . She described the smell – how he was sweaty and salty - during the oral sex. 140 . He humped her until he came. He held her head. His mattress was behind her.

She was facing him while kneeling. She did not know how she ended up on her knees, nor whether she was on blankets or on the floor.

141 . She did not remember if he said anything. She could not recall what she and he were wearing. She did not think she had clothing on. 142 . She tried to pull away, but he was holding her head. He would not let her. He was touching her shoulder and her head. She threw up when he came in her mouth. She was choking on her own vomit. 143 . After he finished, she recollected nothing. She had no memory of how she left the room, nor what, if anything, was said between them. 144 . She explained that a girl remembers her first time. Hers was “shitty”. 145 .

J.D. maintained that it was the first time they engaged in oral sex because that was the first time K.D. had ejaculated in her mouth. She was “sucking his dick”. She saw his face. 146 . K.D. testified that there was never an occasion where he invited J.D. to the place where he slept at his sister, Y.’s house. 147 . He never asked J.D. to perform oral sex upon him. Nor did he “hump” her. 148 . He pointed out as well that there was no possibility that he could close off the space where he slept at his sister Y.’s house. Forcing J.D. Face Down into a Pillow and J.D. Awaking under a Willow Tree: 149 .

As an eight-year-old child, J.D. remembered an incident where K.D. made her turn around and lay face down on his bed on Q. Street in Eganville. He then had her cross her legs at her ankles. Next, he smothered her so hard into a pillow that she thought she blacked out; however, she was not sure. 150 . He was kneeling over her on all fours. She did not believe he was wearing any clothes. She testified that she did not have clothes on, or at a minimum, her lower half was unclothed. 151 . She was quietly crying. She tried to push him off her, but she was unable to. She could not turn her head and scream.

She was a child, and he weighed, she estimated, in the range of 130 to 140 pounds. His response was to push her head down into the pillow. 152 . She explained that he was trying to “hump” her by pushing his penis between her bum and her legs. She did not know if his pants were all the way down, or if he simply had his penis exposed. 153 . She “lost sense of existing”. She added, “I can’t say he smothered me till I blacked out because I don’t remember”. She elaborated that by “smother”, she meant that she maintained consciousness, whereas if she had “blacked out”, she would have lost consciousness. 154 .

The next thing she recalled was being outside and waking up under a willow tree. She did not know how she got there. She was sitting. There were other kids around. She did not see K.D. 155 . She believed that at that point, she was roughly 10 to 12 feet away from the base of the tree. 156 . She did not remember how she ended up being propped up and sitting. She surmised that she must have lost consciousness. 157 . Her recollection was that she was wearing a striped top with frilly arms. The top may have belonged to one of her cousins, because she did not own one like that.

She did not remember what she was wearing on her bottom half. 158 . She believed that her cousins, D. and C., and her brother, Jo.D., were present when she woke up. She remembered playing with them thereafter. 159 . K.D. testified that he never suffocated J.D. by forcing her face into a pillow. Further, there was no willow trees in the backyard of his sister Y.’s house. Nor was there an occasion when he carried J.D. outside. The Basement Incident at J. St. in Eganville/H.D. Trying to Help: 160 . On another occasion, J.D. remembered a time when K.D. took her to the basement of her family home on J.

Street in Eganville. The basement was unfinished with a window behind the stairs leading down to it. 161 . J.D. gave evidence that they were standing under the window above the washing machine. She stated that he was “messing around with me”. By this, she meant that he was touching her over her clothes and on her vagina. It was sunny outside. She was wearing shorts. Her brother, H.D., saw through the window what K.D. was doing to her. She was able to make out his shadow. 162 . She explained that it was not a grown-up person outside the window. She “knew” that it was H.D.

She allowed for the possibility that it was her brother, Jo.D., but “H.D. is ten times the size of Jo.D”. The person outside had bent down, looked in and then was gone. The window was above ground by roughly 18 to 24 inches. 163 . She was not screaming during the incident; however, she did not remember if she was crying. It always upset her when K.D. touched her inappropriately. 164 . She did not remember H.D. trying to get in the window or coming down to the basement. 165 . J.D. was referred to the transcript of the statement she gave to police where she indicated K.D. was taking her pants off.

He had undone them, but as she had earlier testified, “there wasn’t time” for her to get naked.

166 . She offered as well that when she went to the police, her mind was blank. She had not spoken of the sexual abuse in a long time. She was all over the place. 35 years had gone by. 167 . She recalled that K.D. panicked and returned to her aunt Y.’s place. When K.D. realized that H.D. was witnessing what was occurring, K.D. got mad. He said, “Oh shit, oh shit.” He ran upstairs and took off. 168 . She believed that H.D. told her parents later that night what he had seen. 169 . She indicated that H.D. did what he was supposed to do. He went to their parents. He never asked her about this incident.

She felt terrible. She was never there for him. 170 . J.D.’s evidence then changed. As she put it, “Maybe I said that wrong”. She explained that H.D. and she did speak of the incident, but they did not go into details. She did not know when the conversation occurred. She thought H.D. was still a teenager when she spoke to him of it. She did not want people to know about the abuse. 171 . Afterwards as a teen, she became ostracized. The other kids her age did not want to be around her. She changed as a result. 172 . When the incident had occurred many years earlier, her mother asked J.D. if K.D. had hurt her.

J.D. denied that he had. She believed that K.D. would hurt her brother, H.D., if she told. However, she believed that K.D. never confronted H.D about what was happening in the basement on J. Street in Eganville. 173 . She did, nevertheless, think that her mother, L.D., believed something that happened to her. Her mother had mentioned that H.D. had told her something. She asserted that she already knew it was H.D. in the window, who had seen K.D. and her in the basement. 174 . K.D. testified that there was never an occasion when he was in the basement of her J. Street home with her alone.

He did not babysit her siblings and her when they were children in Eganville. 175 . He recalled occasions when J.D.’s parents, his brother, W.D. and his sister-in-law, L.D. would invite him over. 176 . Later, when K.D. married and his wife had twin daughters, W.D. and L.D. would babysit them. 177 . K.D. squarely denied that he ever sexually assaulted J.D. in the basement of her J. Street home in Eganville, nor did H.D. tap at the window to interrupt what J.D. said was occurring. The Fishing Trip: 178 .

Lastly, J.D. remembered an occasion where K.D., her brother, Jo.D. and she went fishing while her family still lived in Eganville. 179 . Her brother situated himself at the edge of a long, skinny, big rock to fish. 180 . After a while, J.D. had to go to the bathroom. She realized that if she went into the bush, K.D. would follow her. 181 . J.D. had to go. She went to a place in amongst the trees. She tried to go fast. She was holding her hands around her knees when he got to her. He was fast. He was trying to “get in there”. 182 . As a result, she started screaming for her brother. He came to her aid.

However, according to J.D., he did not understand what had been occurring. She stated, “I don’t know what’s wrong.” She never told her brother, Jo.D., what was happening. 183 . Eventually, K.D. dropped her brother and her off at their home and he left. 184 . Later that night, she told her parents about how K.D. had touched her inappropriately. 185 . J.D. testified that she never shared with her brother, Jo.D., what happened to her at the hands of K.D. 186 .

When she was referred to what her brother, Jo.D. told police, namely that she went over this fishing incident with him, J.D. allowed for the possibility that they may have discussed it when she was 12 or 13. However, if she did, she did not remember telling him. It did not mean that Jo.D.’s recollection was wrong. 187 . K.D. testified that on occasion, he did go fishing with his brother W.D.’s children, but when did, W.D. would be along with them. He never went fishing with just Jo.D. and J.D. 188 . K.D. denied that he ever approached J.D. during a fishing trip when she was trying to urinate.

Nor did he ever hear J.D. call for her brother, Jo.D., while they were fishing. J.D.’s False Memory: 189 . On May 2, 2022, J.D. testified that she recalled an incident where K.D. put a porn cartoon on the television in their home on J. Street in Eganville for her siblings and her to watch. She believed that K.D. had rented the film. She had a distinct memory of it. She remembered the cartoon because what was happening to her was also happening in the cartoon. 190 . Within the six weeks prior to testifying however, she learned from her mother, L.D., that it was L.D. who had rented the cartoon, not K.D.

J.D. accepted what her mother told her about where the film came from. 191 . When it was put to J.D. that she had a childhood memory which was “wrong”, she agreed that she made a mistake, but that was the only memory she had which was wrong.

192 . In other words, she still had a recollection while testifying that K.D. played the video for her and her siblings, and her parents became angered when they walked in to see what he was doing. H.D. 193 . When H.D. testified on May 3, 2022, he was 47 years old. He was living with his son. He had been working in the carpentry trade since he was in his 20s, but he suffered a back injury while in Calgary. Since then, he has been supporting himself on a disability pension. 194 . He is the oldest amongst the six children born to his parents, W.D. and L.D. 195 .

Many years previously, he remembered living with his family in H[...] Township near Storyland. He reckoned he was about six years of age when they moved there. He believed that they remained in that house for roughly a year or two. 196 . He recalled that it was a ranch-style bungalow. There was never a poured concrete slab for the garage. He remembered that whatever was being thrown into where the garage floor ought to have been would land in the basement. 197 . He stated that his bedroom, which he shared with his brother, Jo.D., was the first one on the left walking down the hallway.

His sisters, J.D. and R.D., shared the next one down. His two youngest siblings had not yet been born. His parents’ bedroom was at the end of the hall. 198 . He also remembered that, near the kitchen and the living room, there was an alcove. When his uncle, K.D. and his grandmother, B.B., moved in with them in H […] , his younger brother, Jo.D. and he slept in bunk beds in the alcove. Eight people were then living in that house. 199 . There were also outbuildings where the family kept chickens. 200 .

H.D. believed that he attended Grades 1 and 2 while he lived in that house before the family moved to Eganville in 1985 when he was about to turn 10 years old. 201 . While living there, H.D. remembered that his father, W.D., worked at a nearby amusement park called Timbertown. H.D. thought that maybe his father found work for K.D. at the park as well. 202 . Whenever K.D. lived with his family, H.D. believed that he would stay in the basement. H.D. described K.D. as a vagabond, who never really worked, but who was “just there”. 203 . He described his grandmother as “kind of alcoholic”.

He added that a lot of the adults in his life when he was a child were alcoholics. His parents liked to drink, as did his aunts and uncles. 204 . H.D.’s parents both worked. While they were away, his grandmother would make sure they were fed. 205 . He described his childhood in the H[...] Township home as “stressful”. He herded his siblings around him and tried to stay away from the house. He loved the nearby treehouse where he would go. He explained that he attempted to keep his brother and sisters away from K.D. If need be, H.D. would put himself between K.D. and them. Uncle R.’s House in the Basement: 206 .

H.D. remembered the family lived at his uncle R.’s place near Haley Station before they resided in H[...] Township. His uncle R.’s house was a brick bungalow. In the basement were old, flowered couches, brown in colour, with wooden armrests. 207 . On one occasion while he was down there in the early morning with K.D., who was “talking all nice” to him, K.D. had H.D. touch him over his clothes. K.D. then began touching H.D.’s genitals through his flannel pyjamas. K.D. was wearing joggers and a tank top of some sort. 208 . K.D. then pushed H.D. onto his stomach. K.D. squeezed his thighs together.

K.D. used his own legs straddling H.D. to accomplish this. 209 . H.D. could not remember if his pyjamas came off. He was not sure, but K.D. was pushing him face down with one arm. There was no penetration of H.D.’s anus by K.D.’s penis on this occasion, but he did put his penis into H.D.’s “thigh gap”. K.D. ejaculated. H.D. went to the bathroom to clean himself up, and, as he put it, “he went about the day like a typical kid”. 210 . There was no one else in the basement when the incident occurred.

H.D. believed he may have been sent there looking for the cats, or he may have been down there on a weekend to watch cartoons on TV. He believed that his uncle, K.D. was staying with them at that time. 211 . H.D. remembered K.D. telling him that if he said anything, K.D. would hurt his siblings. 212 . When K.D. testified on August 9, 2022, he testified that there was a time when his mother and he were staying in the basement at R.’s place. There was a dividing wall between the bedrooms. There was also a table, a television and a small couch down there. 213 .

K.D. did not remember an occasion when he was alone with H.D. in the basement at R.’s home. K.D. specifically denied sitting on

the couch and groping H.D. The Alcove in H[...] Township: 214 . H.D. recalled occasions when he would be sleeping on his bunkbed in the alcove facing the wall. K.D. would climb into his bunk and snuggle behind him. He would then force himself upon H.D. K.D. would use oil, butter or margarine to grease H.D.’s inner thighs. H.D. did not know where the lubricant came from. 215 . H.D. could remember K.D. breathing on the back of his head and the smell of booze emanating from him. K.D. would start talking to H.D. and say, “Okay . . . you know what’s going to happen.” He would “have sex with [his] inner thighs”. 216 .

K.D. would remove H.D.’s pyjamas. At times beforehand, H.D. would be forced to touch K.D.’s erect penis. K.D. liked to touch. K.D. would then flip H.D. over. K.D. would grunt and groan. He would use one hand to support himself and then push himself into H.D. According to H.D., K.D. would take “his sweet time”. K.D. did not want anyone to hear. He was quiet and sneaky. 217 . Specifically, H.D. described what K.D. was doing to him as “pushing his penis into the space between my butt and thighs”. H.D. did not think on these occasions that K.D. penetrated inside his body. 218 .

When K.D. “ finished ”, he would “probably” ejaculate, H.D. reckoned, because H.D. would have to clean himself with a towel. As he put it, “I had no idea what was going on.” He would cry and ask himself, “Why is this happening?” 219 . At its conclusion, K.D. would proceed to tell H.D. how he would hurt H.D.’s family if he told. K.D. threatened H.D.’s siblings with harm. He told H.D. that his parents would never see them again. 220 . To H.D., it seemed as though it were happening “all the time”. H.D. tried to keep one eye open because K.D. was a “creep”. H.D. was on “high alert”.

H.D. did not remember K.D. being like an uncle to him. Instead, he thought of him as “that scary guy who came out of everywhere”. 221 . H.D. wondered, “Where are the adults? Where are all these people who are supposed to be protecting me?” 222 . H.D. added that his younger brother, Jo.D., would be on the top bunk. H.D. never called out to Jo.D. H.D. preferred to take the abuse rather than witness Jo.D. get it. 223 . He believed that when the sexual acts were occurring, his parents were in their room. His grandmother, B.B., could well have been “shuffling around”. 224 .

He recalled one occasion where someone interrupted K.D. H.D. speculated that it could have been B.B., or one of K.D.’s friends, R.L. As H.D. put it, “It’s hard to remember when someone is grunting in your ear, but I thought he heard someone say, “Hey. What are you doing?” Just beforehand, K.D. stayed quiet. He stopped moving. He heard someone coming. 225 . H.D. elaborated that he was having “new memories”. He had spent 40 years trying to forget what had happened. 226 . H.D. explained as well that he suffered from incontinence until he was probably six or seven years old.

As he put it, “I wet the bed and stuff.” 227 . When K.D. testified on August 9, 2022, he stated that he did not remember bunk beds being in the alcove area in H[...] when he lived there with his mother. 228 . He denied that he ever applied butter or margarine to H.D.’s thighs, or that he ever sexually assaulted H.D. The Basement Flashlight Game in the H[...] Township Home: 229 . H.D. remembered when he lived in H[...] with his family, K.D. would sometimes play a flashlight game with his siblings and him in the basement, where H.D. believed K.D.’s bedroom was.

On one occasion, H.D. was sitting on a couch with K.D. to his right. 230 . K.D. would roll a piece of paper into a cone and place it front of the lens of the flashlight. It created a beam. 231 . K.D. would turn the lights off in the basement. The children would try to approach the couch without being caught in the beam. 232 . If they were caught , they would be sent back to the other side of the basement. 233 . While the lights were off and the game was being played, K.D. made H.D. touch his penis. He took H.D.’s hand and put it onto his pants. 234 .

H.D. could not remember whether K.D. was wearing joggers or jeans, but he did recall that K.D. started masturbating himself first and then started using H.D.’s hand to continue the act. 235 . H.D. remembered the on-off button of the flashlight clicking. None of his siblings made it to the couch. 236 . H.D. described the incident as “weird”. He could see the little faces of his siblings while his hand was on K.D.’s penis. 237 . When K.D. finished “his business”, he ejaculated, and all of the children went upstairs. 238 .

H.D. did not remember K.D. touching his body, nor saying anything while he was being forced to masturbate him. H.D. kept thinking, “Don’t touch my siblings.”

239 . Again, H.D. remembered that he was told by K.D. that he would hurt his siblings if H.D. told. H.D. estimated that he had heard that speech for about seven years of his life. He felt as though he was living in a perpetual state of fear and anxiety. 240 . H.D. could not remember if he told police about this incident. 241 . K.D. testified that he never played games with the children when he lived in the H[...] Township home, nor was there a couch in the basement. 242 . He denied that he ever sexually assaulted H.D. down there. K.D. Showing H.D. Playboy Magazines in K.D.’s Bedroom: 243 .

H.D. remembered a final occasion of sexual abuse perpetrated upon him by K.D. when K.D. and his mother, B.B., were living on Q. Street in Eganville. H.D. believed at that time that he was 9 or 10 years old. 244 . H.D. had been downstairs. His siblings and cousins were there as well. He was called upstairs by K.D. 245 . K.D. showed H.D. his Playboy magazines. K.D. had his joggers on. They were sitting on K.D.’s bed. K.D. began touching himself through his clothing and made H.D. touch him as well. K.D. then grabbed H.D. over his pants in his genital area. 246 .

Two of H.D.’s little cousins, C. for sure and perhaps D., came into the bedroom while this was happening. K.D. told them, “Get the fuck out of here”. 247 . K.D. was very mad. H.D. hit K.D. on his left side to distract him and to allow his cousins to leave. K.D. went to the door to shut it after they left. 248 . H.D. wanted to hit K.D. when he returned. K.D. was really angry. He gave H.D. a look “like a rabid dog”. He pulled H.D.’s pants off and did his “thigh thing”; however, on this occasion, he penetrated H.D.’s anus as well. 249 . H.D. explained that K.D. slipped. His penis went in deeper.

H.D. experienced internal pain. It hurt and H.D. was bleeding. 250 . As before, K.D. had taken H.D.’s legs and pushed them together preventing him from getting away. K.D. was using one arm to support himself and to thrust downward. He was grunting and groaning. 251 . H.D. remembered the pain in his bum. K.D.’s penis was in his anus. He was not saying anything. Meanwhile, H.D was crying on the bed and felt incapacitated. 252 . At its conclusion, H.D. cleaned himself up in his grandmother’s bathroom. He recalled seeing blood on the toilet paper in doing so. 253 .

He went outside to the backyard, sat on a hill and cried. It was summertime and he could see docks and other things out in the water. He recalled thinking to himself that his family “sucked”. They were supposed to protect him, and they did not. 254 . He believed that his siblings and he were visiting at his aunt Y.’s place. He believed his parents were at home. 255 . Under cross-examination, H.D. was shown what he told police about the incident in K.D.’s bedroom. When asked by police about whether K.D. penetrated him on that occasion, H.D. said he did not. 256 . H.D. explained that he “blocked out the trauma”.

Although he believed that the memory of the incident was always with him, H.D. reckoned that he suppressed it. It was shameful to him. 257 . Some days after the incident occurred, he told his father what had happened. His father called him “a faggot” and did nothing. Thereafter, a couple of times over the years, he brought up to his father the abuse he suffered at the hands of K.D. Little, if anything, was done. It was “taboo” to discuss the subject within the family. H.D. described his family as “sick”. 258 . Nor did H.D. discuss with C. and D., his cousins, aunt Y.’s and uncle H.’s children, what they saw.

In general, H.D. explained that he did not talk to others about the “dirty details” of what happened to him. 259 . Over the years nevertheless, H.D. became very vocal about K.D. “being a monster”. 260 . When K.D. testified on August 9, 2022, he stated that he did not have H.D. in his bedroom with him when he lived with his sister, Y., and her husband, H. at their Q. Street home in Eganville. 261 . K.D. denied that he showed Playboy magazines to H.D., and that he sexually assaulted his young nephew. 262 . K.D. added that there was no door to the room where he slept in that house.

Nor did he shoo away his sister Y.’s children. K.D. and J.D. in the Basement on J. Street. in Eganville: 263 . H.D. remembered that there was a tiny window above the sink in the basement of the house in which his family lived on J. Street in Eganville. There was also a wood chute leading down to the basement through a window off the driveway. When the wood chute was not in use, a piece of plywood covered the opening where the glass would otherwise be. 264 . H.D. recalled that on one occasion, he heard his sister, J.D. screaming inside the home. He tried to get inside, but the doors were locked.

He then tried to kick in the opening to the wood chute, but he was too small and frail to succeed. He remembered being on the ground kicking it.

265 . He could hear J.D. yelling, “Help, help!”. H.D. tried to look through the window in the basement to see what was occurring. 266 . H.D. believed that he brought up what he heard occurring in the basement with his father, W.D., later that day; however, W.D. took no action. The Disclosures and Confrontations: J.D.: 267 . When J.D. testified on April 19, 2022, she stated that her mother, L.D., asked her when she was roughly 8 years of age, while her father was elsewhere, and while K.D.’s abuse of her was still occurring, “Is [K.D.]. hurting you?” 268 . J.D. responded, “He humps me. He says he loves me.” 269 .

L.D. questioned J.D. further, “What’s humping?” 270 . J.D. answered, “Like what two dogs do”. 271 . J.D. was not sure if she told her mother about the oral sex at that point. 272 . L.D. then talked to J.D. about right and wrong. Her mother apologized to her for not having done anything. J.D. then remembered her father coming into the room. He was mad. Her parents continued talking. J.D. was crying. 273 . When her parents finished speaking, her father left the room. He was upset. J.D. stayed with her mother. She did not know where her father went. 274 .

When H.D. told her father what he thought K.D. was doing to her in the basement of their home when they were living on J. Street in Eganville, J.D. stated that she lied. She did not tell her father the truth about what K.D. was doing to her. She reckoned that this untruth “screwed [her] brother up”. She felt guilty about this her whole life. 275 . J.D. gave evidence that later when she was in Grade 4, K.D. came to her family home in Eganville and sat at their table. She was in her pajamas and was starting to mature physically. K.D. was smiling at her like a friend. She was not happy.

She asked, “What the fuck is he doing here?” Her father told her, “He is my baby brother. We need to forgive and forget.” 276 . Shortly thereafter, J.D. tried to kill herself. She took her grandmother’s nitroglycerin pills. It was around this time as well that she started cutting her wrists. 277 . J.D. believed that the first person she ever told about the sexual abuse was her younger sister, R.D. They were playing the “spinning game”. They were quite young. R.D. is two years younger than J.D. J.D. did not believe that R.D. understood what she was telling her. 278 .

J.D. remembered that when her siblings and she were adults, they would joke around and make fun of K.D. on occasion. She mentioned to H.D. that the reason she was good at “sucking dick” was because she got practice when she was young. 279 . She further explained that H.D. and she had “an understanding”. They both knew. 280 . She reckoned that her father wanted to keep it quiet and to keep it within the family. She was not nice to her father as a result. She believed he was protecting K.D. Her father just wanted it all to go away and would ask her, “Why don’t you get over it?” 281 .

As J.D. put it when explaining her reasons for not going forward to the authorities at the time the abuse was occurring, she stated, “For 35 years, I was told the system would fail us.” 282 . Further, she elaborated that it ate her alive that somebody else could be getting hurt by K.D. The thought of it was killing her and destroying her. 283 . J.D. did tell her siblings about her intention to go forward to police. She stated that her younger sister, R.D., was not comfortable with her decision. Her brother, Jo.D., was mad at her when he learned of it. 284 .

J.D. agreed that she told police that when she was angry at her father, she said to him, “I sucked your brother’s dick, dad. I tickled his balls, and I stuck my finger up his ass.” 285 . She admitted that she did not in truth tickle his balls, nor put her finger in his ass. She explained that she was mad at her father for all the hurt she felt. She wanted him to hurt as much is she did. She believed she was somewhere between the ages of 8 or older when she spoke those words in anger to her father.

Later in her evidence, she stated she said this to her father when she lived in Calgary where he was residing too at the time, and her own daughters were around the ages of seven or eight. 286 . She explained that she was filled with rage because her father was still protecting K.D. 287 . J.D. admitted as well that she went as a teenager to K.D.’s house one morning in Eganville. Both K.D. and his wife were passed out. She poured a can of lighter fluid all over their deck, but went no further than that. 288 . She recalled as well that she did tell him she would forgive him, but she would not forget.

She denied that she ever asked him to forgive her for spreading rumours. 289 . She stated she hugged him once at a funeral “by mistake”.

H.D.: 290 . In addition to telling his father, W.D., about what K.D. did to him at his aunt Y.’s house a couple of days after it had occurred, H.D. testified that he also brought up the abuse he suffered at the hands of K.D. a couple of times through the years. 291 . On an earlier occasion, when he was roughly 4 years old, H.D. would “poop and pee” himself. His father would make him wash his underwear in the toilet. He would threaten to smack him with a belt if he continued to do so. K.D. would be listening outside the bathroom door while this was occurring.

Whenever H.D. told his father what K.D. was doing to him, his father said, “We don’t discuss this stuff.” 292 . On another occasion when he was 15 or 16 years of age, H.D. remembered that he got into a fight with his father. K.D. and his wife were seated at the table in H.D.’s family home on J. Street in Eganville drinking with H.D.’s parents. H.D. told his father, “I don’t want them here. This guy molested your children.” His father did nothing. 293 . H.D. left the house in anger. He punched the vehicle outside hurting his knuckles and wrist. H.D. moved out of the family home shortly thereafter.

He stayed with friends and sought social assistance to be able to support himself. He felt it was pointless talking to his parents about the subject any longer. 294 . The message that H.D. took from his father’s inaction was that the abuse ought to be swept under the rug. H.D. was not to talk about it. He had to let it go. According to his father, “it happened in every family”. 295 . H.D. testified that he did not trust the justice system, police, nor anyone in authority. 296 . H.D. commented that he did not want to talk to anyone about the abuse because he was called a “faggot” by his own father. 297 .

As well, H.D. recalled an occasion where J.D. disclosed to him at the post office in Eganville when he was around 14 or 15 years old what was happening to her at the hands of K.D. She did not go into details. H.D. stated that he already knew. 298 . H.D. also remembered a time when the D. family had a “sit down conversation” in their home in Eganville after his sister, J.D., had a breakdown in high school. J.D. spoke then of what K.D. did to her. H.D. also spoke of what K.D. had done to him as well. J.D. blamed him for not doing anything while she was in the basement. It was an emotional time.

J.D. was “messed up”. 299 . H.D. explained that he was J.D.’s elder brother. He was supposed to protect her. J.D. was telling them how K.D. forced himself on her in the basement that day. H.D. was “angry at the world”, and at times, incoherent. 300 . H.D. told her that he had been assaulted too. He understood. He wanted her to stop blaming him. 301 . He observed how K.D.’s abuse had caused rifts in the D. family. In his view, J.D. hated K.D. In describing his own feelings toward K.D., H.D. stated, “I don’t like that man at all.” 302 . As he got older, H.D. began to call K.D. out as a child molester.

If anyone talked to H.D. about K.D. being a good man, H.D. would reply that K.D. is “a monster”. 303 . He stated that he decided to go forward with his complaint about K.D.’s historical sexual abuse of him after he received a subpoena. He then spoke to a lady at the police station about what had happened in his past. 304 . Although there were some social occasions when H.D. would see K.D., and a time when H.D. and K.D. worked together briefly at a sawmill, for the most part, H.D. tried to stay away from K.D. as much as possible over the last 34 years. H.D. could not stand to look at him. 305 .

H.D. explained that he mainly kept things to himself, but that he also told some people what K.D. did to him. However, he would not go into detail. Jo.D. 306 . H.D.’s younger brother and J.D.’s older brother, Jo.D., testified on June 30, 2022. He recalled that J.D. started bringing things up with their parents around 1987 or 1988 while the family was living on J. Street in Eganville. 307 . J.D. was telling her parents about some of her memories. They told her to stop. Jo.D. was standing at the bedroom door. J.D. was speaking to them. 308 .

Jo.D. gave evidence that he heard a “bunch of things” before he was sent outside; however, he was not trying to overhear . H.D. was also at home at the time. 309 . Jo.D. stated that J.D. did not tell him directly what happened to her. Some years later, J.D. did share with Jo.D. what K.D. did to her, but she did not go into detail. 310 . In terms of frequency , Jo.D. estimated that J.D. spoke about the sexual abuse once a year. The last time he had spoken to J.D. about it was a couple of years prior to giving his testimony. They did not speak about his memories. He just usually listened to her. 311 .

It was not until 1990 or 1992 that Jo.D. began hearing his older brother, H.D., speaking about the same thing. H.D. started talking to his parents about it. Often, Jo.D. would be in the living room and H.D. and their parents would be in the kitchen talking. 312 . Jo.D. described the era as an emotional time for his family.

313 . Jo.D. added that H.D. also told him about events involving K.D. when they were living in Calgary. 314 . Jo.D. explained that J.D. did tell him that “stuff happened”. However, Jo.D. did not want her to go into details. She also explained to Jo.D. that he was present on a fishing trip where K.D. tried to touch her inappropriately, and J.D. was calling out his name. When Jo.D. spoke to police, he stated he could not remember such an incident. Jo.D. speculated that he was too young to remember. 315 . Jo.D. could not recall any directive from his father not to speak about K.D.’s abuse of his siblings. L.D. 316 .

When L.D. testified on August 5, 2022, she was living in Calgary for roughly 25 years with her husband, W.D. 317 . L.D. confirmed that she gave a statement to police in September 2020 regarding the allegations made by J.D. and H.D. against K.D. She stated it was not a shock for her to have heard from police regarding the matter. 318 . L.D. explained that she used to live in Renfrew County with her children H.D., Jo D., J.D. and R.D., when four of her oldest children were young. She remembered around 1981 to 1982, the family stayed with the kids’ uncle R. in Haley Station. 319 .

Thereafter, from 1982 to 1983, the family lived for a year and a half to two years in a three bedroom bungalow in H[...] which she believed to be exclusively oil heated. She did not remember wood being stored in the basement there. Nor did she like her children to be playing down there. 320 . All four children liked to sleep in the same big bed together at times. On other occasions, H.D. and Jo.D. would sleep in a little alcove in bunkbeds near the kitchen. 321 . To L.D., it seemed as though K.D. followed his mother, B.B., along to L.D.’s and W.D.’s home whenever B.B. would be living with them.

L.D. could remember three or four occasions when B.B. and K.D. would be staying with them. B.B. and K.D. would sleep in two single beds in the same room together. 322 . Both L.D. and W.D. worked , the former as a waitress in a restaurant in Renfrew during the evening and the latter in construction during the day. 323 . L.D. specifically remembered that K.D. would babysit her children when W.D. and she would go for groceries. K.D. would not do so overnight. Nor would he be responsible for bathing the children. 324 . Occasionally, K.D. might take the kids for a ride on a dirt bike owned by her husband.

As she put it, “We trusted [K.D.]”. 325 . Later in the period from roughly 1985 to 1996, L.D. lived with her husband and children in Eganville. Her husband’s sister and the children’s aunt Y. and their uncle H., lived nearby with their three daughters, N., D. and C. From time to time, the children would have sleepovers at each other’s houses. 326 . L.D. recalled that K.D. came to stay with her family in the Eganville house as well, but not for a very long time. Later, she gave evidence that she did not really remember K.D. living with them in Eganville.

Even though L.D. did not think that K.D. ever took care of her children in Eganville, she surmised there may have been times when the kids were left alone with him there. 327 . L.D. related that both H.D. and J.D. moved out of the family home at relatively young ages, H.D. at 17 or 18, J.D. at 16. 328 . L.D. admitted that as younger adults, her husband, W.D. and she drank alcohol. On Friday nights, they would do so to excess - indeed, to the point of intoxication. Her mother-in-law, B.B. and brother-in-law, K.D., would join in the consumption.

This was a pattern the adults of the household followed at both homes in H[...] and in Eganville. The children would be present amongst them. 329 . L.D. recalled, when J.D. was seven years old, turning eight, having a discussion with J.D. regarding “bad touching” within a month or two after the family had moved to Eganville. L.D. was bathing J.D. and getting her ready for bed. J.D. told her mother it had already happened. K.D. had done it to her. 330 . L.D. never suspected K.D. had done anything untoward to her children beforehand. 331 .

L.D. told W.D. what J.D. had disclosed after their daughter had gone to sleep. L.D. and W.D. thought about calling the police. Instead, they called their family doctor at roughly 11 PM at night. 332 . L.D. explained that ultimately, her husband and she decided that they would try to keep K.D. away from their daughter, J.D. J.D. was to tell them if K.D. managed to have contact with her. 333 . Later, L.D. and W.D. took J.D. to see a counsellor. However, L.D. lamented that her husband and she did not know to whom to turn for help.

L.D. assured her daughter, J.D., that if she needed to speak to someone, she could talk to her. J.D. did share some accounts with her, and according to L.D., “It was terrible”. 334 . J.D. thereafter through her teen years made suicide attempts. She would cut herself. She was mean to her siblings. 335 . L.D. recalled that shortly after J.D. disclosed what K.D. was doing to her, her husband, W.D., and she called K.D.’s mother and asked if he was there. They waited for him at his residence. W.D. went armed with a baseball bat with the intention of assaulting him. W.D. did not find him.

Indeed, L.D. recollected that her husband and she waited three weeks for K.D. to show up at his residence. He did not. 336 . L.D. reckoned that it was “a while” before they saw K.D. again. L.D. asserted that she had never spoken to K.D. about J.D.’s

allegations concerning him. However, L.D. told K.D.’s mother, B.B., what her son had done to her granddaughter, before L.D. moved with her family out West. 337 . L.D. remembered that it was not until H.D. was about 16 years of age that he disclosed to her that K.D. was “messing around with him too”. As with J.D., L.D. had not suspected that K.D. ever touched H.D. inappropriately. 338 . L.D. described H.D. as a “big protector” of Jo.D. and J.D. 339 . Again, L.D. and W.D. as H.D.’s parents did not call police to contact anyone in authority. They did ask H.D. if he wanted to see a doctor. He declined.

Eventually, he ended up going to counselling to L.D.’s recollection, but L.D. did not ever speak to his counsellor herself. 340 . L.D. observed that H.D. spoke of what K.D. did to him as he got older, because J.D. was “having issues”. 341 . In summarizing her husband’s and her stance on the disclosures made by J.D. and H.D., L.D. concluded that “ . . . we didn’t know how to handle it.” L.D. estimated that a couple of months to a year after J.D. disclosed to her what K.D. was doing, W.D. then confronted K.D.

However, her evidence later changed to not being sure if W.D. ever confronted H.D. about the alleged sexual abuse of their daughter. 342 . L.D. surmised that her husband and she were protecting his mother, B.B., by not going forward with the complaint to the police at the time the incidents were disclosed to them by J.D. and H.D. 343 . L.D. did not recall H.D. telling her husband or her about any attempt made by K.D. to inappropriately touch J.D. when H.D. and J.D. were young children. Nor could L.D. recall J.D. suffering any breakdown while in high school. 344 .

Furthermore, L.D. could not remember counselling her children not to talk about things outside the family, nor her husband, W.D., calling H.D. “a faggot”. 345 . L.D. was not aware of any instance where J.D. confronted W.D., in the years following her disclosure of the alleged sexual abuse by asking her father in their family home, “Why the fuck is K.D. here?” L.D. confirmed that W.D. invited K.D. to the family home in the years thereafter. L.D. too would invite K.D. and his wife for tea from time to time. She did not know why. W.D. 346 .

When W.D. testified on August 5, 2022, he was married to L.D. for many years and together they once lived with their four oldest children, H.D., Jo.D., J.D. and R.D., in a rural home in H[...] Township. They also had a chicken coop and a shed; however, he could not remember wood being stored in or about the property. 347 . To W.D.’s recollection, the basement was “all open”. He could not remember if he had a work bench down there . There may have been, but W.D. had no memory of any furniture being in it. 348 . He also believed that he kept rabbits in the garage. 349 .

While residing in H[...] Township, W.D. was working for Timbertown, a heritage park across the street from their house. There were log cabins, a grist mill, a saw mill and horses to attract visitors. 350 . In terms of their schedules, W.D. tended to work days, while his wife, L.D., worked nights, so they could be around to watch over their children. The kids, W.D. added, were permitted to play across the road on Timbertown property as long as they were within yelling distance. 351 . Occasionally, his mother, B.B., and his brother, K.D., would stay with the family for “a little while”.

W.D. was certain that B.B. spent time with them in H[...], but he could not remember if K.D. did as well. 352 . W.D. thought that K.D. might have babysat the kids on occasion. 353 . As part of his recreation, W.D. would ride dirt bikes. He thought K.D. may have participated in that pastime as well, but not as much as he did. W.D. remembered taking his kids fishing and hunting for food also. K.D. and W.D.’s other brother would go along as well in and about the area of Haley Station to engage in those activities. 354 .

W.D. recalled also that B.B. lived with his family when they moved to Eganville after they left H[...] Township. K.D. stayed with them there as well, and when he did, he either crashed on the couch, or in the spare room. K.D. was the youngest of his siblings. 355 . W.D. acknowledged that on the weekend in both H[...] and Eganville homes, he liked to “ . . . have [his] beer”. He did not specifically remember how many times he drank to the point of intoxication, but it occurred at least “a couple of times”. His wife, L.D., consumed alcohol too; however, according to W.D., she was “not a big drinker”. 356 .

By contrast, W.D. described his mother, B.B., as a “drinking woman”. He explained that she had a tumor since she was 10 years old. She imbibed to rid herself of the pain. He conceded that his mother may have had a problem with alcohol. K.D. drank too. 357 . W.D. had a specific recollection of his wife, L.D., telling him when they lived on J. Street in Eganville that K.D. had touched their daughter inappropriately. W.D. was upset about it. 358 . W.D. believed that J.D. was four years old at the time, but he conceded she could have been as old as seven.

As he aptly put it, “You’re asking me to remember things from 40 years ago.”

359 . Soon after he learned of what K.D did to J.D., W.D. tried to confront K.D. at his mother’s home in Eganville where K.D. was staying at the time. 360 . When W.D. attended at his mother’s place on what he believed to be the one and only occasion he went looking for K.D., W.D. took a bat with him. He intended to beat K.D. with it. He explained that “ . . . anger got the better of me”. 361 . W.D. seemed to recall that at the time of the confrontation, K.D.’s wife may have been pregnant. 362 . W.D. did not recall his wife, L.D., accompanying him to his mother’s home.

He reflected that his wife and he then tried to let the situation calm down. They tried to distance themselves from K.D. W.D. stopped talking to his brother, K.D., for a year or two and he did not call him. W.D. and L.D. did not want K.D. around their house for a while. 363 . Later, they attempted to speak to K.D. about what had occurred between J.D. and him after his twin daughters were born. They did speak, but W.D. did not remember what was said between them. To W.D.’s recollection, there was no fight, argument or heated discussion with K.D. “about things”.

W.D. surmised that K.D.’s children, his nieces, did nothing wrong. 364 . W.D. stated that he did let K.D. come back to his home on a couple of occasions. He needed a place to drop his kids off to be cared for by L.D. and him. W.D. offered that he could not really explain his change of heart, but with K.D. being part of his family, he was torn. He remained unsure why he let K.D. back in the lives of his family. 365 . W.D. reckoned that “sometimes we do things . . . and let our own children down, helping other people’s children”. 366 .

W.D. explained that K.D. and he later lived across the street from one another in Eganville. As brothers, they would socialize. K.D. would come to his house on occasion, but he believed that this was after his daughter, J.D., moved out. 367 . Prior to testifying, W.D. had not spoken to K.D. in years. 368 . Over the course of time, W.D. conceded that he may have had arguments with J.D. about letting K.D. back into their house. 369 . J.D. did not tell W.D. what K.D. did to her until she was in her late teens.

W.D. did not recall any troubling incident involving J.D. while she was in high school which was brought to his attention. W.D. reflected that “ . . . times were different back then. We tried to settle matters ourselves. The authorities were not called.” 370 . Nevertheless, W.D. seemed to recall his wife bringing J.D. to see a doctor at the time. He thought L.D. may also have arranged some counselling for J.D. 371 . W.D. stated that his older son, H.D., did not disclose to him anything untoward that K.D. had done to him until a year or so ago.

W.D. testified that he did not know that H.D. had problems with K.D. too. He asked H.D., “Why didn’t you tell me this years and years ago?” 372 . W.D. understood nevertheless that K.D. had threatened H.D. about what would happen to him if he told. W.D. speculated that H.D. was afraid. 373 . As W.D. put it, “H.D. and I had blowouts.” On one occasion, H.D. punched a car following an argument between them. W.D. ventured that it may have been a fight they had over what happened to J.D. 374 . W.D. conceded that he may have insulted H.D. over the years by telling him he was “pigheaded”.

W.D. may also have said to H.D., “Don’t be such a funny boy.” However, W.D. denied he called H.D. a “faggot”. W.D. did not remember a conversation when H.D. told him, “I don’t remember any good points in my childhood, only the monster that was my uncle.” 375 . Over the years, if J.D. and H.D. were talking about K.D., W.D. acknowledged he may have told them not to talk about it. W.D. explained that they lived in a small town. Rumours spread fast, but he stated he knew it was not a rumour. 376 .

W.D. had no recollection of J.D. confronting him about K.D.’s presence in their home and asking him, “Why the fuck is [he] here?” K.D. 377 . For the sake of cohesion, I have already set out K.D.’s evidence as it relates to the specific instances of alleged sexual abuse and other relevant events which brought him before the Court. I intend to add hereinafter what ought to be considered to fully appreciate the defence he wished to put forth. 378 . When K.D. testified on August 9, 2022, he was 61 years of age. He resided in Renfrew County virtually his entire life. 379 .

He had a good relationship with his siblings, Y.D., W.D. and D.D. He was the youngest. His family would get together for holidays, births, funerals and other significant events. 380 . Whenever his older brother, W.D., needed help, K.D. would oblige, and vice versa. They were always “more or less” on good terms. At points in time through K.D.’s latter teens and early adulthood, W.D. and he lived in the same house together including at Haley Station and H[...] Township. 381 . In terms of education, K.D. left high school in 1977 after Grade 10. 382 . Up until 2016, he worked as a labourer.

He owned his own masonry company. At the time of giving his evidence, he was supporting himself on a disability pension.

383 . In 1986, he married his wife, T.C. They remain together and raised their twin daughters in the Eganville and Golden Lake areas. 384 . Although K.D. agreed it was difficult to remember dates for events which happened roughly 40 years ago, he recalled a time when he lived with his mother’s brother, R., in Haley Station. K.D.’s brother, W.D., and his family lived in the upstairs portion of the house. K.D.’s mother, B.B., and he occupied the downstairs. 385 .

When presented with a printout of his Driver’s Record kept by the Ministry of Transportation for Ontario, K.D. agreed that he was registered as residing in Haley Station from 1983 to 1985. Later in 1987, he was registered as living on J. Street in Eganville. He did not notify MTO of his change of address when he stayed with W.D. and his family in H[...] Township, or when he moved to Q. Street in Eganville. 386 . K.D. got along well with W.D.’s wife and children. Although he would not describe himself as the “fun uncle” to the kids, he would occasionally buy them treats at the store.

He knew that their parents at times could not afford to do so. 387 . Later, W.D. and his family moved to a bungalow in H[...] Township near Timbertown. Roughly 3 to 6 months thereafter, K.D. and his mother, B.B., took up residence there as well where they shared a room. They stayed with W.D.’s family for a little over a year. 388 . To K.D.’s recollection, all four of W.D.’s and L.D.’s children slept in the same bedroom. K.D. did not remember bunk beds ever being used in an alcove off the kitchen and living room area. 389 . He denied he had a bedroom in the basement of the house.

There was only the furnace and oil tank down there. Nor did W.D. have a workbench. Any wood they used was kept stacked outside or in a shed. 390 . K.D. took

[…]