Her Majesty the Queen - v. -, 2018 SKPC 67

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 67 Date: December 19, 2018 Information: 24525763 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stanley Dorie Appearing: Curtis Wiebe For the Crown Ammy Murray For the Accused NOTE: Pursuant to s. 486(4) of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way.

JUDGMENT K.P. BAZIN , J [ 1 ] The events of this matter are alleged to have taken place at the Okimaw Ohci Healing Lodge. The Healing Lodge is a federal prison for women operated by Correctional Service Canada and located on the Nekaneet First

Nation in the Cypress Hills. The Healing Lodge is near the town of Maple Creek, Saskatchewan. The Healing Lodge incorporatesIndigenous culture into all aspects of the institution and is focused on rehabilitation and reintegration. [2] Mr. Dorie was at the time the Acting Deputy Director of the Healing Lodge. J.M. and D.A. were serving prisoners. [3] Mr. Dorie is charged with sexual assault against J.M. on or about March 2, 2015 and D.A. on or about December 17, 2015. [4] The alleged incidents themselves are separate occurrences to J.M. and D.A.

The defence argues that they are related as partof a scheme to falsely accuse Mr. Dorie. The evidence applies to both incidents, particularly in relation to the operation of the HealingLodge and Mr. Dorie’s overall approach to his position and interaction with the residents. The witnesses in their testimony refer to theprisoners as inmates, residents, or girls. In this judgment all three terms are used and is reflective of the witnesses’ testimony. All threeterms refer to the prisoners at the Healing Lodge. [5] For the most part this case is a determination of the facts.

J.M. and D.A. testified that the sexual assaults occurred and Mr. Dorie testified that they did not. The law relating to sexual assault is not at issue. While multiplewitnesses testified, to a large extent the legal question involved in this matter is a determination of what evidence the Court accepts fromthe principle parties being Mr. Dorie, J.M., and D.A. As there are only two people present during the alleged assaults, the credibility ofthe witnesses present is central. Many of the defence witnesses were called to testify about prior inconsistent statements made by D.A. The issue of Mr.

Dorie, J.M., and D.A. requires consideration and application of the principles set out in the leading case as to credibilityof R v W.(D.), (SCC), [1991] 1 SCR 742 (SCC) and its subsequent judicial

interpretation. The W.D. test is summarized as First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [6] In paragraph seven of R v Quintin, 2015 SKQB 16, Justice Gabrielson, quoting from R v Mah, 2002 NSCA 99, reminds one that the focus behind the W.D. test and criminal trials is not a question of credibility, but ofreasonable doubt. 41 The W.D. principle is not a “magic incantation” which trial judges must mouth to avoid appellate intervention.

Rather, W.D. describeshow the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choose betweenalternative versions and, having done so, convict if the complainant’s version is preferred. W.D. reminds us that the judge at a criminaltrial is not attempting to resolve the broad factual question of what happened.

The judge’s function is the more limited one of decidingwhether the essential elements of the charge have been proved beyond reasonable doubt: ...The issue at the end of the day in a criminaltrial is not credibility but reasonable doubt. [7] The application of the W.D. test is to determine whether or not on the evidence the Court accepts if the Crown has proven the charges beyond a reasonable doubt. While there is overlapping evidence, the issues are outlined andaddressed as they relate to each complainant. The majority of the witnesses who testified were for the most

part impartial, althoughmany had worked with Mr. Dorie at the Healing Lodge. Ms. Monkman was a close friend of J.M. and the roommate of D.A. Thecredibility of the witnesses other than Mr. Dorie, J.M., and D.A. was not called into question and I found all other witnesses credible. There is some question as to the reliability of their testimony, particularly those who were called to outline prior inconsistent statementsby J.M. or D.A. All witnesses were also recalling events from two and a half to three years ago. The reliability issue relating to anyparticular witness is addressed directly.

OUTLINE I. Mr. Dorie’s demeanour when interacting with the residents of Okimaw Ohci Healing Lodge II. J.M. The alibi defence: Where was Mr. Dorie on March 2, 2015? What date did the alleged assault on J.M. occur? What was J.M. doing on the day of the alleged assault? What type of grocery trip was J.M. doing on March 3, 2015? Relationship between Mr. Dorie and J.M. Allegation of sexual assault against J.M. Credibility of J.M. Letters vs cards Theresa Redwood as her “big sister” Assault physically impossible Inconsistencies as to conversations between J.M. and D.A. III. Credibility of Mr.

Dorie Front entrance log book Maintaining transparency and third party observation when dealing with residents Statement to the RCMP IV. Analysis V. D.A. VI. Credibility of D.A. D.A. transferring out of Okimaw Ohci Healing Lodge D.A.’s position on wanting to have Mr. Dorie charged Motive to fabricate Statement to Theresa Redwood Statement to Carrie Storms Statement to Jessica Buffalo Calf Statement to Jolynn Bear Statement to Yvette Duquette VII. Relationship between Mr. Dorie and D.A. VIII. Analysis I. Mr. Dorie’s demeanour when interacting with the residents of Okimaw Ohci Healing Lodge

[ 8 ] J.M. testified that Mr. Dorie was definitely the more outgoing of the male guards. She described Mr. Dorie as extremely friendly and said everybody really liked him. He was a little flirtatious, but not in a creepy way. He was initially flirtatious with her.

She testified that he would wink at the residents or give them a little poke on the side if they were standing in line, or make comments like “your hair looks really pretty today”, but initially she never took his actions as creepy or weird. [ 9 ] J.M. said that the other male guards would not wink or make comments like that, referring to the hair comment. She understood from what the other residents said, that is just how he was, and she came to the conclusion that he was just very outgoing and liked to joke and play around with the residents. In describing Mr.

Dorie she said he was very interactive with the residents and he was always around. Mr. Dorie would do little pranks or things like sneak into the kitchen to try to scare you or do little kind of jokes. He would normally come up behind the residents and jump out at them. [ 10 ] D.A. testified that from her observations of Mr. Dorie with the residents, he was very casual but professional. She also got along very well with him. D.A. would give and receive hugs from Mr. Dorie. When Mr. Dorie was asked if he remembered inmates who hugged him or he gave hugs to he said the list would be long.

He said that if you asked any of the staff they all would say that they have hugged residents. [ 11 ] Mr. Dorie stated that he would go into the social area and sit at random tables any day of the week and sit with the residents and ask how their day was and how things were going. [ 12 ] Mr. Dorie agreed he was a fun person to be around. He described himself as an outgoing person. He said that he used humour with the staff and residents and joked around with both. He denied that he ever snuck up on anyone and scared them as a joke. II. J.M. The alibi defence: Where was Mr. Dorie on March 2, 2015? [ 13 ] Mr.

Dorie testified that he has no independent recollection of the day March 2, 2015. He says that from looking at the daily staff sign-in sheet log, which is the log notes of the staff signing in and out at the main entrance, he understands that he was just at the lodge between 1:00 p.m. and 3:00 p.m. J.M. testified that the assault on her took place just before lunch, being 12:00 p.m. [ 14 ] Mr. Dorie speculated that he must have been doing work or training offsite since he was just there for two hours.

There is no other evidence as to where he was or what he was doing during the week before or the week following March 2, 2015. [ 15 ] Following a voir dire , the log notes were allowed in as an exhibit as an exception to the hearsay rule. In my decision on the admissibility of the document I found that the “threshold reliability test” has been met following the law as set out in R v Nataucappo , 2015 SKCA 28 , 457 Sask R 114. The “threshold reliability test”, based on a balance of probabilities, is that threshold reliability is not synonymous with truthfulness.

At the threshold stage, the trial judge should not engage in weighing the evidence or an analysis of whether it should be accepted. That is the ultimate responsibility of the trier of fact. [ 16 ] I will now weigh the value of the evidence of the sign in sheet. [ 17 ] Firstly, it is a document created by those signing in, and those at the main entrance of the

Healing Lodge attending upon the people signing in. There is not one author of the document. For the most part, as testified by Mr. Dorie, other than the check marks, Mr. Dorie’s entry is all done by himself. The form has a place for the “principle entrance officer’s initials” to confirm the time and entrance of the person as well as to confirm the time and exit of a person leaving the Healing Lodge. [ 18 ] On Mr. Dorie’s sign-in line, he testified that he made the entry as to time on entering and exiting, and that he signed the form. The “tick” mark is that of the principle entrance officer. The “0” is Mr.

Dorie’s mark. There are no initials by the principle entrance officer on the form as to Mr. Dorie’s entrance or exit. [ 19 ] The exhibit was a photocopy and the court did not have the benefit of the original document. One is not able to tell from the document whether there were multiple coloured pens being used or if Mr. Dories’ signature is over or under Laura Francis’s which is immediately below his. Ms. Francis signed in earlier and her signature is initialed by the principle entrance officer. [ 20 ] In his testimony, Mr. Dorie expressed on several occasions the importance of the form being filled in properly.

He stressed the need for everyone to sign in and out so in case of emergencies the authorities know who is in the building. He referred to escapes, hostage takings, and fire as examples. [ 21 ] In examination-in-chief, Mr. Dorie, when replying to why some of the people other than himself do not have the principle officer’s initials, said there may not have been an officer available, and there could be a number of reasons for that. While answering a leading question he agreed with counsel that the big deal is signing in and not signing out. This answer, however, is in contrast to Mr.

Dorie relaying the importance of the sign-in sheet for emergencies. One would think that it is important that people are actually confirmed to be out, so they are not thought to be inside, even though they signed themselves that they are out. [ 22 ] Mr. Dorie, when explaining why there is no initial beside his name upon signing in, says that it must have been because he did not “beep”, meaning he did not set off the metal detector when coming in, so there was no need to search him. He said this about himself signing in, that he must not have been searched, but yet the box is ticked that he was. [ 23 ] Mr.

Dorie in examination-in-chief explains that there might not be initials beside someone because they were not searched and had nothing on them. There is, however, not a box for searching when they leave, but only a box for the principle entrance officer’s initials. [ 24 ] Mr. Dorie later stated that if there are no initials by the principle entrance officer then someone just forgot to sign in that area. He then said that it is the same policy and procedure at every institution across Canada and he could not explain why the principle entrance officer would not have initialed.

In cross-examination, he later agreed that it was possible that there were no initials, simply because no one was around to sign the form, meaning the principle entrance officer was not at their post. [ 25 ] Mr. Dorie testified that there are cameras at this main entrance showing everyone coming and going. We however do not have any evidence from the entrance cameras. [ 26 ] Mr. Dorie stated that the principle entrance officer, who is in his own booth, who has the book in front of the counter, directs you to sign and they watch you sign. One questions why the officer who has just watched a person

sign in just does not initial right away where they are required to on the form. This supports Mr. Dorie’s testimony that the principle entrance officer might not have been there. [ 27 ] As to Exhibit D-16, the Entrance Log, I do not find it reliable as a record of whether Mr. Dorie was present during the time period that is indicated on the form. There is no independent confirmation as required on the form that he signed in when it says he did or left when it said he left.

The only part that is not his writing is the “tick” mark saying he was searched, if one accepts his testimony that someone else does this. [ 28 ] On the sign-in log sheet which covers March 2, 2015, in addition to Mr. Dorie, employees Storms and Welton do not have their entrance or exit initialed. Davidson entered at 2:00 p.m. and she never signed out or had her leaving confirmed or noted. The form indicates she is still in the building. Smith never signed out herself, but it is noted that she is in training, and was initialed by the entrance officer.

There are no initials for Birchall and Osterhat when they left. [ 29 ] I find the document unreliable as it is simply not being filled in as required as testified to by Mr. Dorie. It is an important document for the institution, and from the evidence it appears not to have been complied with. I find it is possible that the document was available to people, even if the principle entrance officer was away. [ 30 ] The document is a self-serving document as it relates to Mr.

Dorie for there is no independent confirmation of his coming and going as required by the form and policies of Corrections Canada as testified to by Mr. Dorie. The overall accuracy of the document is in question. I find it unreliable as to when Mr. Dorie attended the lodge on March 2, 2015, and give it no weight. [ 31 ] The Crown, as one of their theories in relation to whether or not Mr. Dorie was in the Healing Lodge on March 2, 2015, was that Mr. Dorie simply went around the front entrance and gained access to the facility without having to sign in and be recorded by cameras, to assault J.M.

While it is correct that one could actually access the facility without going through the main entrance post, as there are no fences around the Healing Lodge, I accept Mr. Dorie’s evidence that he did not ever do this during his career at the Healing Lodge. That would involve a rather complicated plan, and a potentially career ending event if he actually did that. He would have had to do some elaborate timing in all of this to find J.M. in the kitchen alone, with her back turned so she could not see him, and approach her. [ 32 ] I conclude that it is unknown where Mr.

Dorie was on March 2, 2015, as he stated he has no independent recollection of that day, but was relying on the entrance log sheet for March 2, 2015 that he was only at the lodge between 1:00 p.m. and 3:00 p.m. What date did the alleged assault on J.M. occur? [ 33 ] J.M. described the incident on or about March 2, 2015, when asked by the Crown to describe the incident. [ 34 ] In cross-examination, J.M. said she does not recall the day she wrote in her diary.

She agreed with defence counsel that she “may” have written it on March 3, 2015 in reference back to the day before. [ 35 ] I take judicial notice that March 2, 2015 is a Monday, as this was discussed in court being Monday put forward by the defence, and the Crown not having a calendar, I indicated I would look it up and March 2, 2015 was a Monday. [ 36 ] In cross-examination J.M. was asked if at any time since the incident did she

record in her personal diary or any other document the time of the incident. Her answer was that “I don’t believe I put a time. I think I just was writing about it the day, the day after it happened, about it occurring.” [ 37 ] It is unclear what days J.M. worked in the kitchen, although she said the “kitchen manager is there all day five days a week same hours as us.” From that I infer that the residents and J.M. work in the kitchen Monday to Friday. Mr. Dorie said that he never worked weekends, only Monday to Friday.

I find on the evidence that it is not clear what date the alleged assault against J.M. took place, and I find that the alleged assault J.M. has testified to was on or about March 2, 2015, meaning that it could have been March 2 or another day near March 2, 2015. What was J.M. doing on the day of the alleged assault? [ 38 ] J.M. stated that she was working in the main kitchen at the Healing Lodge. She says it was just before noon and that only she was in there, along with Ms. Gowan, the kitchen supervisor. Ms. Gowan was in her office, which had a door on it, and J.M. testified that it was closed.

In his testimony, Mr. Dorie stated that from his knowledge, the number of residents working in the kitchen varies from time to time and there could be anywhere from one to four or five inmates working. [ 39 ] J.M. stated that “one of the things that she was working on was that you have to weigh out the produce for the girls’ weekly grocery orders.” J.M. said she was leaning over, she also described it as bent over, one of the tables.

She said she was weighing out the produce but at the time she said “we have to write down the amounts that are shipped in and how much each house is getting, so I was bent over and writing.” Later, she said that she would be leaning on the edge of the counter, writing down things.

J.M. then described that she had one arm leaning on the counter and the other one writing on the piece of paper. [ 40 ] When J.M. was recalled for follow-up questioning and testified by phone, when talking about her job in the kitchen she said she was “usually packing the girls’ grocery bags for the week or weighing the produce or food that comes in or organizing the shelves or helping her make orders.” J.M. is referring to her overall job in the kitchen. [ 41 ] From this I find that there is not a specific day when J.M. is packing the residents’ grocery bags for the week or weighing the food that comes in. [ 42 ] When she described her job, the weighing of produce or other food and the packing of groceries does not occur one day a week.

I find that on the date of the allegation, from her testimony of her overall duties in the kitchen, this appears to be something that they do every day while at work. [ 43 ] When asked what time of day she usually weighed produce or if there was a usual time, J.M. said it could be any time of day; sometimes she was weighing all day. [ 44 ] When questioned about other jobs, she described taking out things from the freezer and weighing out the portions that the girls were going to take, going to the backroom to count the stock, and keep a list of what was in and out of stock. [ 45 ] J.M. testified that every week the girls in each of their own houses put in a grocery order which is then packed up by the kitchen staff.

On one day of the week the residents come and pick up the groceries, almost like they were going grocery shopping, but they pre-ordered their food. It would be weighed out and given to them.

[ 46 ] When asked if the task of weighing out and giving food to the residents is after grocery shopping, J.M. stated the process is that the residents get a handout in their mailbox and they have a certain day to fill it in.

This is then sent to the kitchen and then the residents working in the kitchen just go through it house by house, getting things weighed out and ready so that on the day the residents collect their groceries the kitchen workers just take out the pre-weighed bags and put them in a milk crate kind of thing. [ 47 ] J.M. indicated that about once a week someone goes to Maple Creek to complete grocery shopping. She said it would happen usually a couple days before giving the food out. She said they never know when the grocery shopping day will occur and she thought maybe this was for security reasons.

J.M. had only gone grocery shopping a couple of times. [ 48 ] When asked if she would ever weigh out and give everything to the residents the day before they went grocery shopping, J.M. said not that she could remember.

She said it was not always a set day to go to the grocery store. [ 49 ] In cross-examination J.M. agreed that it would be fair to say that you would not be giving out groceries the day before you went grocery shopping, because you would simply not have things that were required. [ 50 ] In J.M.’s testimony, she never said she was actually packing up the milk carton crates to be given out on the day of the alleged assault.

She says she was weighing items and writing things down. [ 51 ] The defence argues that J.M. could not have been doing what she said she was doing on March 2, because she went to the town of Maple Creek to get groceries with the kitchen supervisor on March 3, 2018. It is not in dispute that J.M. did go grocery shopping in the town of Maple Creek on March 3, 2015. The defence argues that she would not be weighing and packing up groceries to give out to the residents the day before she went to Maple Creek to get groceries. Thus, her testimony is false, if you accept that the event happened on March 2, 2015.

What type of grocery trip was J.M. doing on March 3, 2015? [ 52 ] J.M.’s escorted grocery trip to Maple Creek on March 3, 2015 is recorded in the log notes as Exhibit D-7, which has J.M. leaving at 9:10 a.m. and returning at 10:35 a.m., an absence of 85 minutes. Mr. Dorie testified that it takes 25 to 30 minutes to drive from Maple Creek to the Healing Lodge. D.A. testified to the size of the Healing Lodge and in doing the math her estimate is that the lodge can hold 36 to 48 inmates. In the log notes on March 2, 2015, Exhibit D-6 refers to the count of inmates as 35 and 34 in the evening. [ 53 ] Mr.

Dorie stated that there would be no groceries available to process the day before the residents and staff went to get groceries. He said that “our kitchen inmates would go and purchase the groceries, then that afternoon they would process and pack them up and they would go out to the units after the 3:45 p.m. or 4:00 p.m. count.” [ 54 ] I do not accept Mr. Dorie’s outline as to how the groceries are purchased and brought into the Healing Lodge and how they are processed in the time frame that he described. I accept the testimony of J.M. who worked there. [ 55 ] I accept Mr.

Dorie’s evidence that there may be occasions when the kitchen-working residents all go to Maple Creek and do a larger shopping event. I accept J.M.’s evidence regarding the way the kitchen worked. There is food shipped in, there is food in freezers, there are grocery trips to Maple Creek, and she talked about how the orders are processed usually a couple of days ahead, so when the residents come to get their food they take out the pre-weighed bags.

[ 56 ] The description of how the kitchen worked by J.M. makes common sense considering that there are at least 34 residents to whom pre-ordered food supplies are provided for the week; and I find they are each individualized orders, given the way the system was described by J.M. [ 57 ] I do not accept Mr. Dorie’s evidence that this is all done on the day that they all go to get groceries in the morning and then get it all processed and handed out by 3:45 pm. [ 58 ] From the evidence, I do not find that J.M. was doing a large grocery shopping event on March 3, 2015 as described by Mr. Dorie.

She was the only one going and at best they only have 25 to 35 minutes to do a week’s shopping for approximately 34 people. She was shopping for groceries as set out in the log, but this does not mean that she could not be weighing and processing food on the day prior, being March 2, 2015, or any other day she worked there. [ 59 ] I find from her testimony that produce was weighed at various times, and the weighing of produce was not tied to being done on the day the residents picked up their groceries.

I find that it was done on a variety of days when she was working in the kitchen. [ 60 ] J.M. said what she was doing was weighing out the produce, and more so when the allegation happened, she was bent over and writing on a piece of paper. J.M. said one of the things she was working on was weighing out the produce for the girls’ weekly grocery orders. [ 61 ] From J.M.’s testimony I find that the Healing Lodge had an inventory of food, and I find that all the food for the residents did not come in from one large grocery shopping blitz in Maple Creek once per week. Relationship between Mr.

Dorie and J.M. [ 62 ] Both J.M. and Mr. Dorie indicated that they had a good relationship and got along well. [ 63 ] In March of 2015 Mr. Dorie was the Acting Deputy Director for the Healing Lodge, which is second in command of the lodge. J.M. was a serving prisoner. [ 64 ] As stated, J.M. indicated that Mr. Dorie was a little flirtatious, but not initially in a creepy way. J.M. said the relationship changed over time. There was an event where the residents were being searched by drug dogs, where they were required to all line up on a wall and turn around and have their hands on the wall.

While this was done, there were comments by the residents about someone looking at their asses, and J.M. saw Mr. Dorie standing near them. J.M. did not think anything about it then. J.M. testified that the next day Mr. Dorie approached her in the library and said he wanted to apologize to her. [ 65 ] J.M. did not know what he was talking about but he said it was about what the girls had said about looking at their asses. J.M. did not think anything about it as she did not think it was true. Mr.

Dorie then said to her “Well even if it is a nice ass to look at.” J.M. stated this was the first time she thought that was an inappropriate comment to say. She said this was the first time she thought his conduct was creepy or weird. [ 66 ] Mr. Dorie testified that he may have talked to J.M. after the drug dog incident, but he disagreed with what J.M. said happened.

[ 67 ] After this incident, J.M. said that Mr. Dorie started to come around more often to the places she was working, such as the library and kitchen. She was hearing comments from other residents that Mr. Dorie was always hanging around or showing up wherever she was, which she dismissed as institutional drama. J.M. said Mr. Dorie had come up to her and told her that a guard had told him that he was hanging around her too much. J.M. dismissed this and said to Mr. Dorie that people just like to talk and cause drama. J.M. testified that Mr.

Dorie then said “Well maybe I have to stop wanting to come and hang out or wanting to come and see where you are.” J.M. said after that conversation she started to distance herself from Mr. Dorie because it just felt weird. [ 68 ] J.M. said she would run into Mr. Dorie in the halls. She said she really did not have a choice where she went but she did not go out of her way in between movements to pass by Mr. Dorie’s office. [ 69 ] J.M. said Mr. Dorie asked her to write him a letter.

When she asked why she would do that he said “Oh we can just see what happens with the letters.” He said he would not show anyone the letters and J.M. asked why she would write a letter that could not be shown. She said Mr. Dorie said “We will just see how the letters go so why not write him a letter.” J.M. said she told Mr. Dorie, “Why don’t you write me a letter” as she said she knew he would say no and she thought that would be the end of it. J.M. interpreted Mr. Dorie’s request for letters that would be dirty or inappropriate. [ 70 ] J.M. did write Mr. Dorie what she described as cards.

She said she wrote lots of people cards, the people she liked at the lodge who worked there. The cards to Mr. Dorie are thank you cards and appreciation cards. J.M. testified that she always liked Mr. Dorie. She never thought he was doing a bad job. [ 71 ] Mr. Dorie denies the letter conversation with J.M. He said that what he said was just in passing J.M., after having received the thank you letters from her, he said jokingly “what no letters?” in relation to him not having received a letter or card from her in a while.

Allegation of sexual assault against J.M. [ 72 ] J.M. stated that she was the only resident in the kitchen as it was just before lunch and all the residents go to their houses for lunch. She described that she caught Mr. Dorie trying to sneak up behind her. She said she had a sense someone was behind her so she turned around and saw Mr. Dorie and he said “oh you caught me” and they laughed and talked about hockey or something for a bit. She then turned around and went back to doing what she was doing. J.M. then described that Mr.

Dorie came back in about 30 to 45 seconds and sexually assaulted her. [ 73 ] J.M. stated that the assault took place in the kitchen, where she said there are no cameras. J.M. testified that Mr. Dorie sexually assaulted her when she was bent over writing, by coming up behind her, grabbing her shoulders and pulling her back and pushing his groin into her buttocks such that she felt his penis. She testified it was the feeling like a pressure of something hard. She testified in detail. She testified that she was the sole resident working, but Ms.

Gowan, the supervisor, was in her windowless office with the door closed. [ 74 ] J.M. stated that she pushed back and turned around and said “oh my god” or probably “what the fuck are you doing?” She said Mr. Dorie asked her “if she felt it” with a kind of smirky wink. Ms. Gowan came out as J.M. thought she said her remark quite loud. In response to Ms. Gowan’s enquires about what was going on, J.M. testified that she told her that Stan had scared her. J.M. did not say what really happened as she said she was in shock and did not think Ms.

Gowan would believe her anyway. [ 75 ] J.M. testified she immediately told her best friend, Ms. Monkman, as they would meet to walk back to their house for dinner. She also told her roommate and another friend over the phone. J.M. testified that she was worried about her parole hearing coming up in May 2015, and she was extremely cautious about making any allegations against the institution or the guards. She never reported the event to the authorities in our outside of the prison. [ 76 ] J.M. was contacted by the RCMP in late 2015 or early 2016, about eight months after her release from prison. Cst.

Staples stated that during his involvement with D.A. he asked the director of the Healing Lodge, Ms. Lee Anne Skene, to canvass the inmates about whether Mr. Dorie had acted inappropriately with any of them. J.M.’s name came up, so he contacted her. J.M. was clear that she did not intend to report the incident. She said she did not want to report it while on parole and she

candidly said she did not want to deal with anything that happened back then and just wanted to move on. However, when asked if she would provide a statement about the incident with Mr. Dorie, she did. [ 77 ] Mr. Dorie testified and denied that the incident with J.M. happened. He denied ever scaring people as a joke and he denied ever being in the kitchen alone with J.M. His position is that J.M. fabricated the story or if it did happen it was not him who assaulted her. [ 78 ] The defence argues that the allegation occurred on March 2, 2015 before noon.

They rely on J.M.’s testimony and questioned her about her diary. They rely on the daily entrance log to support Mr. Dorie’s position that he was not present in the Healing Lodge before 1:00 p.m. on March 2, 2015. [ 79 ] The defence argues that the incidents prior to the alleged assault did not occur as J.M. continued to have positive contact with Mr. Dorie as indicated in the cards that she wrote to Mr. Dorie. Credibility of J.M. [ 80 ] The defence argues that J.M. is not credible because there are a number of inconsistencies in her testimony.

Letters vs cards [ 81 ] The defence points out that J.M. had initially said she did not send any letters to Mr. Dorie. In cross-examination the defence produced a number of additional writings from J.M. to Mr. Dorie. J.M. had said that she had given him a Christmas card like she did to six other people.

She said it was the only time that she had written him anything. [ 82 ] J.M. was confronted with a number of writings which she acknowledged she sent. [ 83 ] The first writing simply stated December 2014 and can be described as a thank you writing and Christmas wishes. [ 84 ] The second is a writing dated January 5, 2015 titled “Manic Monday” which she said was after the dog search incident and after Mr. Dorie had said she had a nice ass. The writing is really a neutral writing thanking Mr. Dorie for all that he does for the residents.

She had accepted his apology about him looking at her ass and she said it was a chaotic week, so she wrote him. She said she felt uncomfortable with his behaviour, but had accepted his apology. She stated she felt bad for what was happening, referring to the negative comments about Mr. Dorie, so she wrote it. [ 85 ] The third writing is January 16, 2015 titled “Yah Friday” to Mr. Dorie. It is again a positive thank you writing. J.M. said she wrote to all the staff that she liked at this time. [ 86 ] The fourth writing is February 3, 2015. Again, this writing is a positive thank you note to Mr.

Dorie. [ 87 ] When confronted with why she had testified that writing letters to guards was pretty

unusual and not allowed and that she had not written Mr. Dorie, she said that what she had written were not letters, she considered them cards. J.M. explained that she considered them cards as in a card one would not expect a reply. She said they are different from a letter as they are thank you cards. The writings were entered as exhibits and the physical documents support J.M.’s testimony that she considered them cards. The sheets of paper were folded as cards and the writing on them is only correctly read if you fold them back up into a card.

The content of the writings support J.M.’s testimony that she did not expect a reply, as the writings were positive thank you notes and they did not indicate any subject that one would expect a reply to. [ 88 ] The defence questions the evidence of J.M. as to conversations with Mr. Dorie after the dog search incident. They raise the point that if what J.M. said was true about her being uncomfortable around Mr. Dorie, why would she still be writing him thank you notes. The writings were very positive and thankful to Mr.

Dorie for all he has done for the residents. [ 89 ] In answer to this questioning, J.M. went on to explain why she wrote the cards to Mr. Dorie, when she had previously said she was trying to avoid him and was uncomfortable around him. She explained that if someone is inappropriate and you do not want to be around them, you also try to protect that relationship in case they turn on you, in case they ever try to suggest that you are in the wrong. J.M. talked about if it would be alleged that she was enticing him with her body language or something .

She stayed away so nothing could be said that her behaviour was sexual in nature, or people seeing them together too much . She said she still liked Mr. Dorie as a person but was uncomfortable around him in person. J.M. described the cards as “self-preservation meets genuine thankfulness” for what he did at the lodge. [ 90 ] I accept J.M.’s explanation as to why she said she did not write Mr. Dorie, other than the Christmas writing. It is clear that she did not consider the writings as letters. In testifying, J.M. was not fazed when confronted with the writings. She had an immediate explanation.

To her she is talking about two different things. She did not present as defensive, but went about acknowledging the writing and explaining why she wrote them. [ 91 ] It is of note that being an inmate, J.M. was aware that she was vulnerable to have a staff member make false allegations against her, or not provide a positive report on her behaviour. She talked about being extremely cautious about making a complaint against the institution or guards. [ 92 ] J.M. had talked about how she was focused, and her understanding that it was the focus of all the inmates to get parole.

She described parole as the biggest moment. You want to make sure everything you do inside bodes well for you when you appear before the parole board. You want to be on your best behaviour in prison so the board cannot say negative things against you from your time in prison. J.M. outlined her understanding of what all is included in her file that goes to the parole board. From her understanding, anything said against her would affect her parole chances. [ 93 ] J.M. testified about why she did not report the sexual assault.

She said “I was two months away from parole at that point, and I thought that the cons of coming forward with something like that would outweigh the pros.

Since I was hoping to get parole and having such a small amount of time left, I didn't want to start something where it's his word against mine, and I felt like I was in a position where I wouldn't be believed anyway.” [ 94 ] This statement highlights her concern about not wanting anything negative about her put in her file. [ 95 ] J.M.’s concern about not having anything come back against her is reflected in her testimony about why she told her roommate about the interactions with Mr. Dorie, and the alleged assault.

J.M. wanted someone to know right away in case it came back at her. [ 96 ] I accept J.M.’s reasons for why she wrote the writings and why she refers to them as cards. I do not find that she was trying to mislead the court or lie about her writings to Mr. Dorie. I accept that she honestly liked Mr. Dorie, but was careful not to upset him or cause him reason to be negative against her in light of his inappropriate behaviours toward her before the sexual assault allegation.

Theresa Redwood as her “big sister” [ 97 ] The defence points out another inconsistency in J.M.’s testimony. J.M. said that Theresa Redwood was her “big sister”. This refers to a staff member that, as I understand, helps out an inmate. Ms. Redwood said she was not J.M.’s big sister. She clarified that she did not do paperwork for inmates, but it is not clear what a big sister did in total. Ms. Redwood did say that she was an “older sister”. This, from her description of the job, is that she is assigned to a number of inmates to assign their case work.

Most of what she described had to do with the running of the prison. While Ms. Redwood was not asked if she was J.M.’s “older sister”, we know that she was an older sister for some inmates and could well have been for J.M. I find that nothing turns on this issue. Assault physically impossible [ 98 ] Mr. Dorie argued that from the way J.M. described the incident in the kitchen, it is physically impossible to have occurred due to the height difference between Mr. Dorie and J.M. They question J.M.’s testimony that she could feel Mr. Dorie’s penis in light of the clothes they were wearing.

J.M. was wearing jeans with a wraparound apron. J.M. said she was about 5’3” to 5’4”, and estimated that Mr. Dorie was 6’1”. J.M. said she could feel Mr. Dorie’s erection through the clothes they both wore. As J.M.’s back was to Mr. Dorie and he came up and surprised her I find no evidence to support the defence contention that it was physically impossible for Mr. Dorie to push his crotch up against J.M.’ buttocks when he pulled her back.

Also, I find no evidence to support the defence contention that it was physically impossible for J.M. to feel a man’s erection through jeans, apron, and a pair of slacks. [ 99 ] On the issue of Mr. Dorie asking J.M. “did you feel it”, there is a discrepancy between J.M.’s diary and her testimony, and she was cross-examined in relation to the diary as a previous statement.

It was put to her that in her diary she wrote that he said “ha ha I got you this time” versus “did you feel it” J.M. said he said “ did you feel it” several times and to her the most vivid memory of the event is him saying that to her as he asked her multiple times. J.M. agreed that events were fresher in her mind when she wrote it in her diary. She said she also wrote about him saying “did you feel it” but not sure how many times she mentioned it, and also said that she was not sure how much detail she went into in her diary. [ 100 ] J.M. also testified that later that day when passing Mr.

Dorie’s office, he called her in and asked her if she felt it. This event was also in her diary, which she agreed to. [ 101 ] I accept the evidence of J.M. as to Mr. Dorie asking her if she felt it. It is unclear if it was said at the time of the assault or later, but I accept that it was said by Mr. Dorie to J.M. on the day of the incident, and was in relation to the incident in the kitchen. Inconsistencies as to conversations between J.M. and D.A. [ 102 ] The defence argued that J.M. was not truthful when asked if she ever discussed Mr. Dorie with D.A. and she said no.

She then agreed that she told the Board of Inquiry that she and D.A. had conversations about Mr. Dorie and his behaviour. J.M. explained why she said no. She said she thought she was being asked if they discussed him regularly. She said she thought she was being asked if she and D.A. talked about Mr. Dorie. J.M. stated that she did have passing comments on Mr. Dorie, when D.A. would say things to her about him. [ 103 ] The defence argued that J.M. must be lying about her testimony that she never told the authorities or the police about the incident until she was contacted by the RCMP.

They point out that it is a mystery how J.M.’s name comes up through Corrections Canada, such that the RCMP were asked to contact her. While it might well be a mystery, there is no credible evidence that J.M. contacted anyone in authority or the RCMP about the alleged assault. [ 104 ] Mr. Dorie testified that the alleged assault simply did not happen. He was never in the kitchen alone with J.M.

III. Credibility of Mr. Dorie Front entrance log book [ 105 ] Mr. Dorie stressed in his testimony how important it was that the sign-in sheet was properly done and the need for its accuracy. He explained the significant role the sheet played in the institution and to the safety of the people in the institution. However, when confronted with a form that, for the most part, is rife with people not following the procedure, he then agreed that there was really no explanation for why it was not fully completed as to policy, either by himself or others. He went on to say that the person in charge was possibly away.

Maintaining transparency and third party observation when dealing with residents [ 106 ] Mr. Dorie talked about how important it was to him to not put himself in positions where something could be said against him. He would never put himself in a room with a resident with the blinds closed. At times when inmates wanted to have a confidential conversation he would close the door but make sure the blinds were open. This was so staff and guards walking by could look in and see them. Mr. Dorie stated that he would tell the correction officers he was going to have a discussion with an inmate when he did this.

He was always aware of the fact that allegations of sexual assault could be made against him. He was aware that there could always be allegations of inappropriate behaviour by male staff to the female residents. [ 107 ] Mr. Dorie said that, when using the elevator, if an inmate came along and he would know that just the two of them would be going in the elevator, he would wait back and not go in the elevator with the inmate. He did not want to put himself in a position where something could be said about him. [ 108 ] Mr.

Dorie knew that there were rumours and comments about the male staff being inappropriate with the residents. He knew that there were rumours specifically about him and his behaviour with residents. Mr. Dorie testified that a few months before the J.M. allegation, there was a rumour going around in the provincial female correctional facility, Pine Grove, that he was being inappropriate with inmates. He said the rumour was that if you wanted something to get to know this guy, being Mr. Dorie. [ 109 ] Mr. Dorie said that to some degree he was aware that these types of rumours were said about him, J.M., and D.A.

J.M. said that Mr. Dorie told her that he was told by a guard that he was spending too much time around J.M. Ms. Skene, the director of the Healing Lodge, had talked to Mr. Dorie about what another inmate had said about him having a special relationship with D.A. Ms. Skene told him about this rumour and told him he might want to watch how he was interacting with her. [ 110 ] Mr. Dorie was aware that some of the female residents had been through mental, physical, and sexual abuse. [ 111 ] Despite this concern by Mr. Dorie, he put himself in situations where he was alone with the female inmates.

On December 17, 2015, the day of the alleged sexual assault against D.A., he agreed to do the count of going to the residents’ units and counting to see they were all accounted for. When asked if this went against his personal preference about not being alone with residents he said, no it did not. Mr. Dorie explained that this was because the institution’s policy allowed males to do counts alone during the time of day that it was done. He said that it was not normally done and that male guards normally go in pairs.

When cross-examined that he was putting himself at risk according to his preference, he said he was not because he was in a unit with another inmate, so, in his eyes, that covered him. However, the reality is if Mr. Dorie was doing a count on the residents, he had no knowledge whether all the residents were in their units or not until he was in and checked, thus the reason for an actual head count. [ 112 ] In relation to his interaction with D.A. on December 17, he checked on D.A.’s roommate, but did not talk to her. He simply knocked and opened her bedroom door, saw her there and closed the door. Ms.

Monkman testified she did not even know who did the count as she did not look up, indicating how fast this was done, and there was no interaction between

them. [ 113 ] Mr. Dorie then knocked on D.A.’s door, opened it and instead of just doing the same as he did with her roommate, of confirming that she was in her unit, he started up a conversation with her. This was after Ms. Skene, the director of the Healing Lodge, had talked to Mr. Dorie about what another inmate had said about him having a special relationship with D.A. Ms. Skene told him about this rumour and told him he might want to watch how he was interacting with her.

One questions why he initiated a conversation with D.A. in her bedroom with her roommate in the next room who was so preoccupied she did not even look up when he opened her door. In addition, Mr. Dorie closed the roommate’s door. [ 114 ] Earlier the same day, Mr. Dorie spoke to three residents about their unsupervised temporary absences that they were going to be going on. One of those residents was D.A. [ 115 ] Mr. Dorie spoke to all three residents alone, but said he was in areas that other people could see him with the resident.

While he can be seen with a resident, no third party can hear what they are talking about. However, with D.A., who he had been told to watch his interaction with, he took her from the hobby area where she was working, which was supervised by Mr. Dorie’s wife, and went to the gym area to have a private conversation with her. Although he said his wife could see them, the subject that Mr. Dorie was telling the three women about was nothing that would seem to require such great confidentiality.

He was just telling them not to do anything that might cause them trouble when they came back from their unsupervised absence such as bringing into the prison anything they were not supposed to bring in, like tobacco or drugs. This is something that would be well known in the prison. [ 116 ] With all the red flags about his interaction with residents and with D.A. specifically, Mr.

Dorie’s conduct with D.A., in having this private conversation with her in the gym, and then by his testimony of starting up a conversation in her room on the head count, goes against what he said was his preference to protect himself from false allegations by residents that he acted inappropriately. [ 117 ] Mr. Dorie said that when he did the count round he had brief conversations with the residents all the time, but if he saw that a resident was preoccupied watching TV, or if they were in their room writing or reading or whatever, he would not interrupt them.

This is, however, by his testimony, not what he did with D.A., as she was in her room and he said he initiates a conversation with her about her sleeping early and not being able to sleep later. Statement to the RCMP [ 118 ] There is a significant inconsistency between Mr. Dorie’s testimony and that in his statement to Cst. Staples about an overhead projector being in D.A.’s room. He did not mention this in his statement to Cst. Staples. Mr. Dorie testified that this is not something that is normally in an inmate’s room, so he questioned D.A. about it.

He said D.A. explained that she used it for a painting she had done for an inmate, and they had a conversation about the painting. He said D.A. invited him to stop by the hobbies room the next day to see it. One would think that such an odd item in a resident’s room would be remembered when giving a statement to the RCMP. [ 119 ] Mr. Dorie also had told Cst. Staples that he was in D.A.’s unit for 30 seconds. When Cst. Staples suggested if two and a half minutes might be more accurate, Mr. Dorie stated, he did not think so, but maybe a minute at the “max.” Mr.

Dorie testified that at the time he was guessing the times. With adding in the conversation of the overhead projector and the paintings on top of a conversation about D.A. sleeping at five and not feeling well, I infer that Mr. Dorie in his testimony, is adding events in the conversation to account for the longer period of time that he was in D.A.’s unit. He now knows from the Deister reports and surveillance video that the time he spent in the unit was much longer than one minute. IV. Analysis

[ 120 ] J.M.’s testimony outlines a pattern of interaction between her and Mr. Dorie that is flirtatious on Mr. Dorie’s part. J.M. found his behaviour different from other guards and her experience in other prisons but accepted that this was how he was, in relation to the joking around, the pranks, poking the residents, and his comments on their looks. J.M. came to like Mr. Dorie and thought highly of him in doing his job. This can be seen in her appreciation cards. [ 121 ] The incident with the drug dog search was supported by Mr.

Dorie’s testimony that comments were made by inmates as to him looking at their buttocks. Mr. Dorie did ask J.M. about getting letters, although not in the context that J.M. described. [ 122 ] In relation to J.M., it was an issue at trial as to the timing of her statement to the police which came about eight months after the alleged assault. J.M. had told her friend Ms. Monkman right away. Pursuant to s. 275 of the Criminal Code , the “recent complaint” rule is abrogated and there is no adverse inference to be drawn from the timing of J.M.’s statement to the police, and I draw none.

The issue arose from the defence argument that the reason why J.M. did not report the matter earlier is because it did not happen, and she was involved in a plan to falsely accuse Mr. Dorie of a sexual assault to boost or add credibility to D.A.’s allegation of sexual assault. This allegation of a scheme between J.M. and D.A. is argued to have taken place after D.A.’s allegation of sexual assault, being unwanted kissing in December of 2015. [ 123 ] I accept J.M.’s explanation as to why she did not report the assault to authorities, and her behaviour afterwards towards Mr. Dorie.

She was a few months away from her parole hearing and she conducted herself in a manner of self-preservation, such as not to anger Mr. Dorie so that he might speak negatively about her or turn on her, thus putting her chances of parole in jeopardy. Mr. Dorie was the Acting Deputy Director at the time and she stated that she doubted anyone would believe her if she reported the event. It would be her word against the Acting Deputy Director. She would also not know all the intricate details of the power of an Acting Deputy Director as to how his comments about her behaviour might affect her chances of parole.

J.M. did believe that he could affect her chances of parole. [ 124 ] There is no motive for J.M. to fabricate the story. J.M. liked Mr. Dorie. She has never sued anyone over the incident and never wanted to nor did she report the sexual assault to any authorities. J.M. simply wanted to get on with her life and leave the time she spent in prison behind her, including the sexual assault by Mr. Dorie. It is highly unlikely that she would fabricate a long and intricate story of her relationship with Mr. Dorie to fabricate an incident that she had never intended to tell the authorities.

Equally, it is unlikely that she would do this in concert with D.A., who was not a friend, to help her. [ 125 ] I accept the evidence of J.M. She explained any inconsistencies in her testimony, particularly in relation to the writings she gave Mr. Dorie. J.M. liked Mr. Dorie and had no intention of reporting the sexual assault, but when approached by the RCMP she told them her story. From J.M.’s testimony she held no animosity towards Mr. Dorie. In her testimony, J.M. came across simply as a person who had wanted to put the time she spent in prison behind her.

However, she came forward and gave a statement and testified when asked to. [ 126 ] In the defence’s earlier application in this matter for disclosure of a portion of J.M.’s Diary, J.M. consented to its disclosure. [ 127 ] I reject Mr. Dorie’s denial of the assault on J.M. Mr. Dorie downplayed his relationship with the residents and in particular his relationship with J.M. and D.A. He described it as nothing different than with any other inmate. [ 128 ] I find that there is some question as to Mr.

Dorie’s credibility as there is a disconnect between what he says he did and what he actually did. [ 129 ] I do not find that this was an elaborate planned event. I find that it was following a

pattern of flirtatious and increasingly inappropriate conduct towards J.M. and that Mr. Dorie went over the line when the opportunity presented itself. Mr. Dorie at first comes into the kitchen, and seeing J.M. in the kitchen, tries to prank her, but she sees him. However, having done this Mr. Dorie knows that J.M. is in the kitchen alone, in a place without cameras, and he returns in a few seconds and this time he comes up from behind as she is bent over writing and sexually assaults J.M. by pushing his groin into her buttocks as he pulls her back into him.

Her reaction is such that the kitchen supervisor comes out and asks what is going on. The manager did not come out the first time Mr. Dorie came in to try to scare J.M., indicating that something in the interaction between J.M. and Mr. Dorie was different from the first encounter a few seconds prior. [ 130 ] The opportunity to press himself into J.M. only required mere seconds. [ 131 ] I find that the incident occurred on or about March 2, 2015, but may not have occurred on March 2, 2015.

However, despite not being able to determine the exact date, I have no doubt that the sexual assault did occur in the manner that J.M. described. [ 132 ] In accepting J.M.’s testimony, I reject the defence argument that she was involved in a scheme with D.A. to fabricate false allegations against Mr. Dorie in order to sue Corrections Canada for financial gain, so that D.A. could pay off her restitution order. There is no evidence to support such a position. [ 133 ] In applying the test of W.D ., I reject Mr.

Dorie’s evidence that he did not sexually assault J.M., nor that he had acted inappropriately with her over the months prior. Considering all of the evidence that I accept, I find that the Crown has proven beyond a reasonable doubt the charge that Mr. Dorie sexually assaulted J.M., and find him guilty as charged. V. D.A. [ 134 ] D.A.’s testimony is that Mr. Dorie came into her room, closed the door and approached her bed. She had been sleeping, previous to him coming into her bedroom, and had awoken with the sound of someone coming into the residence. Mr.

Dorie flipped her comforter off of her and put his clipboard and radio on her night stand. He knelt down over top of her as she lay in bed to give her a hug. D.A. said that in her relationship with Mr. Dorie, hugging was not out of the norm. She hugged Mr. Dorie back, then retreated. D.A. said he moved back far enough that she put her hands on top of herself. Mr. Dorie then leaned back again into her to hug her but he began kissing her on her left cheek and then kissing her on her lips. D.A. said she pushed back as far as she could go into her mattress and was pursing her lips. She did not consent to the kissing.

Nothing was said between them, and this lasted 10-20 seconds. Mr. Dorie then stood up and straightened himself and asked her if that was okay. D.A. said that her husband would not think so, but she was not going to tell him. Mr. Dorie left and she never talked to him again. She did not consent to the kissing. [ 135 ] Mr. Dorie does not deny that he was in D.A.’s housing unit 1-3, that she shared with Ms. Monkman, and talked to her from her bedroom door on December 17, 2015. He was doing the resident count alone around 5:30 p.m., which was allowed.

D.A. said it was rare that a male person would do the round check alone. The Deister records show that Mr. Dorie registered his Deister hit in Unit 1-3 at 17:32:50 until he registered his Diester hit in Unit 1-4 at 17:35:42. This calculates to two minutes and 52 seconds, as testified to by Ms. Redmond. [ 136 ] Mr. Dorie then went on to say he talked about her sleeping early and not being able to sleep, then admitted that he cannot recall what the conversation in the room was exactly but recalled it had to do with her not feeling well and going to sleep early. [ 137 ] Mr.

Dorie stated that he entered D.A.’s unit, hit the Diester point and then opened Ms. Monkman’s bedroom door. He said he did not want to interrupt her as she was sitting on her bed reading or writing a letter. He closed her door. He then opened D.A.’s door and D.A. sat up. Mr. Dorie initiated a conversation with her, asking her why she was sleeping at 5 o’clock. D.A. said she was not feeling well so they had a conversation. He then noticed an overhead projector in D.A.’s room and he

asked her why she had the projector. D.A. explained she had it for a painting she was doing and then they talked about the painting. D.A. invited him to come and see the painting the next day in hobbies. VI. Credibility of D.A. [ 138 ] The defence raised a number of matters they say challenge D.A.’s credibility. First is the fact that she was convicted for false pretence and fraud and received a 30-month jail sentence. They attack D.A.’s credibility in relation to different statements that she made to different people and how that differed from her testimony in court, or between the statements.

The defence specifically called a number of witnesses that it is alleged D.A. made statements to, to challenge her credibility. The defence in argument addressed these issues by topic and also by witness. D.A. transferring out of Okimaw Ohci Healing Lodge [ 139 ] D.A. testified that she was not looking for a transfer at any time, as she was nearing her parole review and had been encouraged by staff to make an application for early review. She testified that if she transferred she would have to start all over again for an early parole review. [ 140 ] Ms. Redwood’s testimony supports what D.A. said. Ms.

Redwood said that the idea of a transfer came up from the resident, who was attending with D.A., when she was reporting the incident about Mr. Dorie. Ms. Redwood said a transfer was discussed but D.A. did not appear to want one . D.A. did not come up with the idea of a transfer out. This supports D.A.’s testimony. Equally, Ms. Carrie Storms was called by the defence in relation to an alleged statement by D.A., of which one item was if she asked for a transfer. Ms. Storms confirmed D.A.’s testimony that Ms. Redwood mentioned a transfer and D.A. did not want one.

The evidence as to a transfer in the statements recorded by Redwood and Storms and their testimony does not differ from what D.A. said, but in fact supports what she testified to. D.A.’s position on wanting to have Mr. Dorie charged [ 141 ] D.A. testified that she initially refused to make a statement to the RCMP. She said that the warden encouraged her to make a statement and told her that it was in her best interest to make a statement, which she did. Ms. Redwood’s evidence is that D.A. had given her the impression she was reluctant to report the incident.

She said D.A. had told her that she did not want to say anything about the incident, thinking she somehow asked for this, but she realized she had to think of the people after her that this could happen to. [ 142 ] The defence argued that D.A. always wanted to press forward with charges as she spoke to Ms. Redwood the day after the incident, being December 18, 2015. On December 22 she gave a statement to the police. D.A., when questioned about whether she said to the police at the end of the interview that she did not think Mr.

Dorie should be charged or lose his job, could not remember saying this but agreed with that statement. [ 143 ] I find that D.A.’s testimony and the statements she gave to other people are consistent in that she did report the incident, but was always reluctant. It is initially over concerns that she was to blame for the incident. She eventually did report after being told by the warden it was in her best interest to do so, along with her concern for those that will come after her in the Healing Lodge. Motive to fabricate [ 144 ] The defence argued that D.A. had a motive to fabricate the allegation of sexual

assault, in that she had a $200,000.00 restitution order against her and by an allegation of sexual assault she could receive compensation from Corrections Canada towards this debt. [ 145 ] The defence argued that J.M. and D.A. conspired to put forward false allegations of sexual assault against Mr. Dorie so that D.A. could receive compensation from Corrections Canada. The defence argued that the link is Jaqueline Monkman, who was J.M.’s best friend and D.A.’s roommate. [ 146 ] Ms. Monkman said she talked to J.M. about the incident with D.A., but this was after J.M. was contacted by someone in authority.

J.M. had been released by this time. [ 147 ] The defence also put forward evidence that D.A. had asked about who would be liable if she was in a car accident. Ms. Redwood says that is often asked by inmates. Ms. Joleen Bear testified that on a car trip back to the lodge, D.A. asked if a farmer would be liable if a car went off the road and hit the farmer’s quonset. The inference the defence requests to be drawn is that D.A. was thinking of a way to pay off her $200,000.00 restitution order.

Statement to Theresa Redwood [ 148 ] There are a number of actions that the defence alleged are different from what D.A. had testified to and what she had told Ms. Redwood. Ms. Redwood had been told by D.A. of the incident on Friday, December 18, 2015. Ms. Redwood made notes and then made a report on the following Monday, being December 21. Ms. Redwood shredded the notes she used to prepare the report. [ 149 ] Reading the report of Ms. Redwood, there is little that is different than what D.A. testified to. One has to take into consideration that Ms.

Redwood’s report is not verbatim, but she did say where she put things in quotation marks that this is a direct quote. Neither the statement nor the original notes which were shredded were put to D.A. for review to see if she agreed with what was written down at the time. D.A. was reporting the incident one day later, and the report did indicate that Ms. Redmond had asked her several times about her well-being, covering off self-harm concerns. [ 150 ] The defence states that in the Redwood report, D.A. was said to have said that Mr. Dorie had a silver thing in his hand. Ms.

Redwood assumed she was referring to the Diester, used for recording where the officers are when doing counts. [ 151 ] Other variations is that the Redwood report says that D.A. was sleeping and she woke up as Mr. Dorie was leaning over her and just as she was waking up he leaned over her and kissed her. This is not a direct quote and appears to be a

summary by Ms. Redwood. [ 152 ] The Redwood report also says that Mr. Dorie had stood up and was walking to the door when he turned and asked D.A. if this was okay, referring to the kiss. This again is not a direct quote but a

summary. [ 153 ] There is no mention of hugging in the report. [ 154 ] Taking the background on how the Redwood report is made and written over two days later, and we do not have the original notes, the Redwood report is not much different from what D.A. testified to. One might expect a

few differences in accounts, as D.A. is testifying two and a half years after speaking to Ms. Redwood. Some of the differences are open to

interpretation. Statement to Carrie Storms [ 155 ] The issue the defence raises with D.A.’s statement to Carrie Storms is that Ms. Storms, in her recorded statement, said that D.A. had said that Ms. Redwood had told her to keep quiet about her allegations as things could get messy. Ms. Redwood denied this, but did say that she did point out to D.A. that Mr. Dorie’s wife also works at the Healing Lodge. The statement to Ms. Storms was recorded in her Observation Report on December 19, 2015. The interaction was at 1:50 p.m. and the report was written at 4:35 p.m., about two and a half hours later.

The report was not reviewed by D.A. at the time. In addition the report indicated that it arose on a head count at 1:00 p.m. in D.A.’s residence. Ms. Storms was concerned about how D.A. was as Ms. Storms said that D.A. appeared withdrawn. Although D.A. said she was okay, Ms. Storms said she did not look okay. Ms. Storms said that another resident asked her to talk to D.A. Ms. Storms testified that D.A. did not seem her usual self. [ 156 ] Considering the circumstances of when Ms. Storms was talking to D.A. and her emotional condition, the fact that Ms. Redwood did remind D.A. about Mr.

Dorie’s wife working at the Healing Lodge, one could see why D.A. might infer she was told to keep things quiet to Ms. Storms. D.A. testified that she did not say that she was told to keep things quiet to avoid things getting messy. Considering D.A.’s condition and the manner that the conversation was recorded it is understandable that there may be a difference between each parties’ understanding of what was being said. Being specifically reminded that Mr. Dorie’s wife worked in the Healing Lodge could be reasonably interpreted as a caution about who D.A. talks to. Statement to Jessica Buffalo Calf [ 157 ] Ms.

Buffalo Calf was the social programs officer at the Healing Lodge. She testified that she talked to D.A. on December 21, 2015 and Ms. Buffalo Calf made a report the next day. Ms. Buffalo Calf agreed that the written statement is a

summary of what D.A. told her. She also stated that it was possible D.A. told her other things that are not written in her report and that some of the things D.A. said were written down a little bit differently. The report was not reviewed by D.A. when made. [ 158 ] The Buffalo Calf report has a version of the incident with Mr. Dorie a bit different than what D.A. is reported to have said to other people and at trial. It refers to Mr. Dorie making a motion to sit on her bed, as opposed to flipping a comforter off of D.A. It also refers to Mr. Dorie asking if it was okay before the kiss or attempted kiss.

The conversation about D.A. saying she did not think so or her husband would not think so was before he got up off the bed and went out the door. D.A. is alleged to have said that Mr. Dorie ran his clipboard across her leg and told her that if she said anything she would lose everything. Statement to Jolynn Bear [ 159 ] Ms. Bear was a correctional officer at the Healing Lodge. Ms. Bear wrote a report in relation to a question D.A. asked while in a car trip about the liability of a landowner if the car went off the road and hit a farmer’s quonset.

Again this report was done a day after the alleged statement and D.A. did not review the statement. Ms. Bear was pretty sure the statement was a direct quote as set out in her report. She decided to write the report after thinking about it over the night as the comment struck her as odd for two reasons. She had heard that D.A. had hit the ditch when returning from an absence with her husband. Further, it just rubbed her the wrong way considering it was about a month since D.A.’s report against Mr. Dorie. Statement to Yvette Duquette [ 160 ] Ms. Duquette was employed as an Elder at the Okimaw Ohci Healing Lodge.

Ms. Duquette’s report was written five days after the alleged statement. It was not reviewed by D.A. It was Ms. Duquette’s first report so she talked to her supervisor about how to do them. Ms. Duquette wrote the report because of the discussion of D.A.’s past abuse by her grandfather,and not the incident with Mr. Dorie. The statement was Ms. Duquette’s

summary of what was said and the majority of the report is about her counselling and advice to D.A. in dealing with an issue in her past, and not the incident with Mr. Dorie. D.A. is

alleged to have said in relation to Mr. Dorie that a staff member came in her room, laid on her, tried to kiss her, and she freaked out and she told him to leave. No follow-up questions were asked and Ms. Duquette, in her testimony, said that they were talking about triggering events that caused D.A. to relive past incidents in childhood. In testimony, the specific concern to report, was the past incidents D.A. had disclosed and helping her work through those issues. The report also indicated that D.A. was crying throughout the talk with Ms.

Duquette, when dealing with her past incidents as a child. [ 161 ] In the circumstances under which the statement was recorded, reported, and the event itself, I do not find that the statement as put forward by the defence is reliable as a statement that contradicts D.A.’s testimony. It could easily be interpreted as supporting her testimony, considering it is a very short mention to advise of a triggering event. The testimony of Ms. Duquette does shed some light on interpreting D.A.’s demeanor after the incident with Mr. Dorie.

The many staff witnesses that were called, in relation to their interaction with D.A., outlined concern for D.A. and how she was not her usual self and was withdrawn. VII. Relationship between Mr. Dorie and D.A. [ 162 ] D.A. and Mr. Dorie had a very good relationship. Mr. Dorie described it as no different from any other inmate. D.A. described that she got along very well with Mr. Dorie. She said they had a staff-inmate relationship. She testified that she confided in him quite often when she needed a staff member to speak to. She said that if something terrible would happen she would go to him for comfort.

D.A. testified that she trusted Mr. Dorie to go to him with a lot of things and for her he was very comforting. D.A. stated that hugging was the norm with her and Mr. Dorie. Hugging had occurred a couple of times in her unit and elsewhere in the building, not confined to just one area. D.A. indicated that the hugging for her was not romantic. Mr. Dorie acknowledged that he hugged D.A. about five times, with one he initiated. [ 163 ] D.A., in similarity to J.M., had no ill feelings towards Mr. Dorie as she testified. D.A. said she initially did not want to go to the police and make a statement.

D.A. had told the police that she did not think that Mr. Dorie should be charged, when specifically asked if she wanted charges to proceed. D.A. confirmed her understanding from the police was that it was out of her hands as to whether Mr. Dorie was charged or not. VIII. Analysis [ 164 ] In reviewing the evidence against D.A. as to inconsistent statements, the timing and the circumstances that the alleged inconsistent statements were stated and recorded, I find that they do not in any substantial way reduce the credibility of D.A.

For the most part, her description of the events that happened in her room has remained the same with minor differences. Her testimony in court addressed the inconsistencies and she agreed to or rejected statements she was alleged to have made previously. In the end she testified under cross-examination as to the events in her room and I accept her version as testified about in court. It is not unreasonable that a person who has been assaulted by an unwanted kiss would not recall or recall collateral items a bit differently when talking to various parties under various circumstances. [ 165 ] I find that Mr.

Dorie had a special relationship with D.A. There was a level of comfort that D.A. had with Mr. Dorie, so that she was comfortable in giving and receiving hugs from him. She confided in Mr. Dorie. I find that Mr. Dorie took this relationship too far which resulted in inappropriate conduct when he kissed D.A. after a consensual hug. This was an unwanted kiss and it was for a sexual purpose on Mr. Dorie’s part. Mr. Dorie, in asking if it was okay was a means of attempting to take his relationship with D.A. into a romantic and/or sexual one, and he knew he did not have her consent for the kiss.

I accept the evidence of D.A. as to being kissed by Mr. Dorie in her room. [ 166 ] There was considerable evidence tendered on the issue of how long Mr. Dorie was in D.A.’s unit. Whether the time was one minute maximum as stated by Mr. Dorie to the RCMP, or closer to two and a half minutes, when considering that Mr. Dorie’s time from the Deister point was two minutes and fifty two seconds, Mr. Dorie had the necessary time to enter D.A.’s room, hug her, and kiss her. The time Mr. Dorie was in D.A.’s room required to go over to her, hug her, and then kiss her is a matter of seconds.

D.A. said that the whole event took 10 to 20 seconds. [ 167 ] I reject the defence theory that D.A. had fabricated the story in order to gain financial

compensation from Mr. Dorie or Corrections Canada for a sexual assault. As pointed out by the Crown, if one were to go through the process of fabricating a sexual assault for funds towards a $200,000.00.00 restitution order, you would certainly not base your accusations on an inappropriate kiss that was preceded by a consensual hug.

D.A. could have easily embellished her story to unwanted touching to more intimate parts of her body if she were looking for financial gain. [ 168 ] Equally, I reject the defence theory that D.A. and J.M. conspired so that J.M. would come forward with a sexual assault charge to boost D.A.’s claim. The only connection between D.A. and J.M. is really that D.A.’s roommate, Ms. Monkman, was J.M.’s best friend in the Healing Lodge. The evidence of J.M., D.A., and Ms. Monkman is that J.M. and D.A. really only had incidental contact and made general comments to each other.

They were not friends nor did they hang out together. They really had nothing to do with each other for the most part. J.M. had been paroled sometime in May of 2015. [ 169 ] D.A. described her relationship with Mr. Dorie in her testimony as very good. She said he was one of the people she felt she could confide in. The relationship involved hugging, which D.A. did not see as inappropriate. D.A., other than the unwanted kiss, did not say that Mr. Dorie was ever inappropriate with her. Ms. Monkman testified that D.A. had commented to her about Mr.

Dorie calling her into his office and saying inappropriate things, but D.A. did not express that anything was done inappropriately to her before the kiss. [ 170 ] I reject the evidence of Mr. Dorie as to the events in D.A.’s room on December 17 th , 2015 for the same concerns about his credibility as previously outlined in this decision. In applying the W.D. test, I find that I am not left with a reasonable doubt as to Mr. Dorie’s guilt. When looking at all the evidence that I accept, I find that the Crown has proven the charge of sexual assault by unwanted kissing beyond a reasonable doubt and I find Mr.

Dorie guilty of sexual assault against D.A. Dated this 19 th day of December, 2018. _______________________ K.P. Bazin, J