2021 NBPC 17, 2021 NBPC 17

2021NBPC17 Provincial Court Province of New Brunswick Date: August 17, 2021 Docket: 15742713 Her Majesty, The Queen - and - William Thompson Decision of the Honourable Judge Cameron Gunn of the Provincial Court of New Brunswick Appearances: Jean Guy Savoie, for Her Majesty the Queen Bruce Phillips, for William Thompson RESTRICTION ON PUBLICATION This matter is subject to a Publication Ban. Information contained herein is prohibited from publication pursuant to

Section 486.4 of the Criminal Code of Canada . Note: This document is subject to editorial revision before its reproduction in final form INTRODUCTION 1. Sometime in the late 1970s C.L. was taken from a foster care home where she and her siblings were beaten and, after short time in the care of her father, moved to the home of her uncle, William Thompson, his wife Ruth and their two biological children. Up to that point her life had been horrific.

Though she has little memory of her life between the ages of 5 to 9 she does know that one of her siblings did not survive the abuse they suffered and that the purpose of moving to the Thompson’s was for her safety. 2. Unfortunately, as William Thompson has acknowledged through guilty pleas to two offences, safety is a relative term.

3. C.L. alleges that while living with the Thompsons, her uncle, and the man who raised her from the time of her entry into the home until she left after high school, sexually violated her. William Thompson acknowledged this through his guilty pleas and admissions to her and others. 4. C.L and William Thompson do not agree, however, on the nature, frequency and time of the encounters between them. C.L. relates a number of events that occurred that would constitute criminal offences by William Thompson. William Thompson testified to two discrete events that bear no relationship to the events described by C.L. 5.

As a result of the allegations of C.L. William Thompson was charged that he did: Count 1: on or between the 11 th day of March A.D. 1977 and the 11 th day of March A.D. 1980 at or near Napan, in the County of Northumberland and Province of New Brunswick, did indecently assault C.L., a female person, committing thereby an indictable offense, contrary to and in violation of

section 149 of the Criminal Code of Canada ; Count 2: on or between the 11th day of March A.D. 1977 and the 11th day of March A.D. 1980 at or near Napan, in the County of Northumberland and Province of New Brunswick, did committing acts of indecency with C.L., a female person, committing thereby an indictable offense, contrary to and in violation of

section 157 of the Criminal Code of Canada ; Count 3: on or between the 11th day of March A.D. 1977 and the 11th day of March A.D. 1980 at or near Napan, in the County of Northumberland and Province of New Brunswick, without lawful authority, did confine C. L., thereby committing an indictable offense, contrary to and in violation of subsection 247(2) of the Criminal Code of Canada ; 6. At the commencement of trial William Thompson offered guilty pleas to counts 1 and 2 but maintained his not guilty plea on count 3.

It also became apparent that, though his pleas were voluntary, that there was a dispute, as described above, about the factual foundation of those pleas. As such the parties agreed that the trial on count number 3 would also involve testimony with respect to all of the alleged offences from which I would make findings with respect to whether the Crown had met its burden of proof on count number 3 and what, in any, facts would support counts 1 and 2. ISSUES 7.

William Thompson’s guilty pleas to two of the charges had an impact on the manner in which these proceedings were conducted and on the issues before the Court. By his guilty pleas, Mr. Thompson has offered admissions to two of the alleged offences (subject to his position on the principle against multiple convictions). The question of the impact of those pleas is the first issue that must be addressed. A useful starting point is to remember that Mr. Thompson, is presumed to be innocent until the Crown has proven his guilt beyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial.

The accused does not have to present evidence or prove anything. [1] 8 A guilty plea, however, is, in Canada, an admission by the accused of all the legal ingredients necessary to constitute the crime charged and dispenses with the necessity of proof of the ingredients. [2] Justice Laskin (in dissent but not on this point) wrote: A plea of guilty carries an admission that the accused so pleading has committed the crime charged and a consent to a conviction being entered without any trial.

The accused by such a plea relieves the Crown of the burden to prove guilt beyond a reasonable doubt, abandons his non-compellability as a witness and his right to remain silent and surrenders his right to offer full answer and defence to a charge. It is important, therefore, that the plea be made voluntarily and upon a full understanding of the nature of the charge and its consequences and that it be unequivocal.

In these respects, representation by counsel is an important consideration; but since the plea is that of the accused and not of his counsel, a trial Judge should still satisfy himself of the matters above mentioned. These do not immediately engage any factual issues which might, however, arise if the accused seeks to qualify his guilty plea by explanatory comments either at the time it is entered or later before termination of the proceedings. [3] 9. To accept the pleas, I must be satisfied that the plea is voluntarily and that Mr. Thompson understands : (

i) that the plea is an admission of the “essential elements” of the offence; (ii) the “nature and consequences of the plea”; and (iii) that the “court is not bound by an agreement” made between the accused and the prosecutor. This second aspect is an inquiry into whether the pleas were informed. I must be satisfied that the “facts support the charge”. [4]

1 0. Having conducted a plea inquiry analogous to that required pursuant by s. 606(1.1) of the Criminal Code I was, and am, satisfied that the plea was voluntary. The facts here, however, are not agreed to. Where facts are contested, the Crown is obligated to prove the facts. [5] This is not, however, a case where the accused has said that he accepts a part or portion of what the Crown alleges, but not some aggravating factors. Here the versions of events described by the complainant and the accused bear no resemblance and the events that each described are disputed in whole by the other.

This presents a unique dilemma. I must determine, before any other step is taken, if the facts testified to by William Thompson, would if believed, constitute one or both of the charges to which he has offered guilty pleas. Without making any determination, at this point, as to whether I accept the testimony of William Thompson (nor if I am left with a reasonable doubt by it) I must assess whether what he admits to doing would constitute the essential elements of count 1 and/or 2. If it would not then I must strike the guilty pleas. 12.

William Thompson is charged with three offences were alleged to have occurred between March 11, 1977 and March 11, 1980. 13. The first offence, indecent assault of a female person, contrary to

section 149 of the Criminal Code of Canada and the second offence, committing a gross indecency with a female person contrary to

section 157 of the Criminal Code no longer exist. One of those offences, gross indecency has no equivalent in the current Criminal Code . These offences, along with a number of other sexual offences, were repealed and replaced by the offence of sexual assault after January 4, 1983, the date the amendment to the Criminal Code was proclaimed in force . [6] 14.

The elements of the offence of indecent assault are as follows: 1) The accused is the person who actually committed the offence of indecent assault; 2) The offence of indecent assault occurred at the time and place set out in the Information; 3) The accused applied force to the complainant directly or indirectly; 4) The accused intentionally applied force to the complainant in circumstances which had the quality of indecency; 5) The complainant was under the age of 14 years at the time of the alleged offence or that the complainant was the age of 14 years or older and did not consent to the application of force or did not consent validly due to the accused inducing the complainant to engage in the activity by abusing a position of trust, power, or authority; [7] and 6) The complainant was a female person. [8] 15.

With respect to the charge of gross indecency, the elements are: 1) The accused is the person who actually committed the offence of gross indecency; 2) The offence of gross indecency occurred in the place specified in the Information during the date range specified in the Information; 3) The acts of gross indecency were with the complainant; 4) The acts committed are a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality; [9] and 5) That there was no consent by the complainant. [10] 16.

The version of the events testified to by the accused does not satisfy all of the elements of the offences for the above two charges. The first event to which Mr. Thompson testified would not, in my view constitute an offence, as there would be, if I accepted his testimony, no application of force or intent to apply force by him, an essential elements of the offence contrary to s. 149 [11] and no act of gross indecency to satisfy the charge under s. 157. With respect to the second event, he testified that at the time the event he alleged occurred the complainant was 14.

If I accepted his testimony, then C.L. would have been capable by age of consenting to the charge under s. 149 . [12] Section 149(2) held that a person might still be convicted if consent were obtained by false and fraudulent representations as to the nature and quality of the act. Though there may be an argument of whether s. 149(2) applies on the evidence of William Thompson, I cannot conclude, on his evidence alone, that consent was obtained by false and fraudulent representations as to the nature and quality of the act.

Consent is likewise possible in a charge under s. 157. [13] Even in circumstances where the accused was in loco parentis consent is a live issue [14] and, again, though it is possible the nature of the relationship would make it difficult to determine that consent existed, the testimony of the accused (the only thing I am considering at this point) would not clearly establish an absence of consent. 17. Given the above, the facts that the accused testified to do not satisfy the requirement that his plea be informed in the sense that it is

an admission to the essential elements of the charge, and I do not accept his guilty pleas on that basis and I am striking the guilty pleas. 18. My finding above means that the issues that remain to be resolved are whether the Crown has established, beyond a reasonable doubt, the essential elements of all of the offences with which Mr. Thompson is charged. Mr. Thompson and the Crown have confirmed that, having stricken the guilty pleas, I may consider the evidence heard in relation to all of the offences in relation to all three charges and whether the Crown has met it’s burden of proof.

EVIDENCE Crown Evidence 19. The Crown called three witnesses, the first of whom was the complainant C.L.. She testified that she was born on March 11, 1966. After having been removed from foster care in Ontario, a place where she was located due to her father’s inability to care for her, and a place where she suffered abuse that hospitalized her and her siblings, and ultimately led to the death of her sister, and following a short return to the care of her father, she came to New Brunswick to live with her uncle William Thompson and his wife Ruth. The Thompson’s also had 2 biological children.

She was 11 at the time. 2 0. Her recollection was that her father, the brother of William Thompson, left her at the Thompson house and Napan, New Brunswick. At the time that she arrived, and her memory when she was age 11, the two Thompson children, Kevin and Brenda were five years and six years younger than she respectively. She arrived in the summer. Her grandmother also lived across the street and was still living at the time of arrival. 21.

Shortly after her arrival at the home C.L. started to be the object of sexual crimes by her uncle the first of which she described as him taking her from the living room into his bedroom where he jammed a butter knife in to the door frame to lock the door. She testified that butter knife was jammed into the trim high in the door frame and she would not have been able to reach it. The two other children were in the home at the time. She recalled him taking the knife from the dresser. At this point she knew something was going to happen.

She testified that at first, he talked very gently to her and told her that “we are allowed to do this and you are making me happy”. 22. She recalled that she had on a yellow dress which he lifted and pulled down her panties. He kissed her and with his bare hand rubbed her vagina and then inserted one or two fingers into her vagina. She said he was not a monster about it and while he did it he continued to tell her it was okay to do. She had a specific memory of the knife and that it was thick on the handle end. She said this knife became a constant in the abuse which he suffered.

She testified that though she never tried to reach the knife that she was confident she could not have given her size at the time. 23. This was the first of the events she indicated that there were more and that she specifically remembers three incidents in the master bedroom. 24 . C.L. indicated that there were three times that incidents involving she and the accused occurred in that bedroom that she remembers, though the next incident sequence occurred in her brother's room and not in the master bedroom. The second incident involved all of the children playing on the bed in her brother's bedroom.

William Thompson put his arm across her and held her down and pretended to play with the other kids but at the same time reached under her clothes and touched her vagina. During the course of this incident he whispered to her not to move. He pulled her panties aside and put his finger in her vagina and when he pulled the finger out her sister commented on the "awful smell". At that point William Thompson got up and left 25. The third incident occurred in the master bedroom though she did not recall how she got to the bedroom.

She did recall that her mother was going to a church event which she knew because she had her Bible. She recalled that it was sunny and warm when she left and that her mother had a little coat on. She recalled the knife being placed in the doorjamb and that William Thompson laid down and had no pants on when he lay beside her. She remembered laying on the bed and he came up beside her. She remembered seeing the knife on the dresser and putting it in the doorjamb. She felt that he was placing the knife in the doorjamb to keep her in the room.

During the course of these events the other two children were in the living room watching cartoons. As with each of the incidents at the conclusion of it he said that if she told anyone she would be sent to back to where she came from.

26. C.L. testified about a further incident that occurred on the couch when the children had their PJs on. Kevin and Brenda had a blanket over them, and everyone was watching television. She said that the accused came in and sat at the end of the couch. She felt nervous and he got behind her in the couch and lay behind her before she knew it, he had his finger in her vagina and she froze. He was pushing his penis area against her bum. 27.

C.L. also testified about another incident in the bedroom where the accused got on top of her while he was telling her it was okay for them to do what they were doing, and it was making him happy. He wanted to put his penis in her vagina and she started crying. He rubbed her vagina and put his finger into her vagina, and he was rubbing her breast area. During this event he put her hand on his penis and his hand on top of hers guiding her what to do. 28. During this incident Mr. Thompson's daughter Brenda came to the door knocked and asked to come in. Mr.

Thompson replied that "when we're done we’ll be out" and he told her to go watch television and she left. 29. The final incident she recalled occurred in the bedroom with the other children home and when she ended up in the bedroom he was more stern. She had on a shirt and she thinks that he barely had anything on. In this incident he begged and pleaded with her to let him put penis inside her after he had digitally penetrated her to the point that she thought she had an orgasm. He said “it’s gonna make me feel good and it’s gonna feel good” if she let him put his penis in her vagina.

He was hovering over her and not putting his weight on her. He was rubbing her and kissing her. She was looking out the window and couldn’t understand why this was happening and she wanted it to be over . She wasn’t sure if she blacked out but when she opened her eyes, he was already dressed. She could not say for sure if he put his penis in her vagina. S he testified that when he was done, he said “Cindy if you tell anyone what had happened in this room, I’m going to send you back to the foster home.” 3 0.

She testified that in total there were six incidents and that they stopped when she started her period at 13 years old. 31. C.L. continue to live with the Thompson's until she was 18 years old and at one point after she became pregnant, she lived in the basement of the house with her boyfriend, now her husband, until they got a house. 32.

C.L. testified that she suppressed memories of the events though she had some memories during her teenage years though these memories are not about sexual events but rather physical violence and when she confronted the Thompson's about this they advised her that this occurred during her time at the foster home. 33. In approximately 2012 she began to have memories of being molested and when she spoke to Ruth Thompson about it, they made her believe it was her biological father. 34.

C.L. testified that eventually she realized that she had been molested by William Thompson when she had gone out to the Thompson residence to assist her mother with sewing in the bedroom. She noticed the butterknife. She said it was like a movie flashed in front of her but this time the face she saw was Billy Thomspon. She was having cancer treatments at the time and used this as an excuse to leave telling Ruth Thompson that she was sick. Instead of speaking to her husband or anyone else about the incident she tried to forget about it and would only go back to the Thompson residence if Ruth was there.

She did not speak to anyone as she did not want to hurt Ruth. It was affecting her marriage, and she was not able to be intimate with her husband. She indicated that she started to gamble was ashamed and blamed yourself and did not want to live. She became depressed and attempted suicide once. 35. Eventually she did tell her husband a couple of years later and she did confront William Thompson with her memories. She testified that during the summer in 2015 she drove by the church where William Thompson was a member and saw him in the church parking lot.

Though she initially drove by she returned to the parking lot and said to William Thompson "I know what you did". His response was what do you mean. She in turn said "I know what you did when I was young". In response he turned red and said "I don't know why I did it but if you tell anyone… If you tell your mom ....she had already had a heart attack she might have another one." 36. She went to house on another occasion hoping Ruth would be there. At the time she was gambling and behind on bills. She told William Thompson that she was having a hard time. He gave her a $2000.

On another occasion she went to the house to see her mother, Ruth Thompson, and was crying uncontrollably. Ruth Thompson was concerned about her and wanted her to talk to someone. William Thompson was in the house and Ruth Thompson got him to give her money she needed. In response she hugged William Thompson though she did know why. She indicated that they were her parents to her and that she "hated him and I didn't hate him"

37. After this C.L. made arrangements to speak to Kevin Matthews, the pastor of Point Church. She disclosed to Pastor Matthews what occurred and arrangements were made for a meeting with Pastor Matthews, C.L., and the Thompsons. 38.On May 23, 2019 this meeting occurred at the residence of the Thompson's. Pastor Matthews introduced the subject by saying "Billy we are here for a reason you know what it is". Pastor Matthews repeated this and when William Thompson did not respond C.L. testified that she screamed "would you just tell them what you did to me". 39. In response William Thompson said, "I molested you".

Pastor Matthews said, "did it happen more than once?" To which Mr. Thompson replied yes. Pastor Matthews asked, "did it happen more than twice?". Again, C.L. testified that William Thompson replied "yes". When C.L. said I was 11 years old when it happened William Thompson replied, "no Cindy, I think you were 12." 4 0. C.L. also testified that during the course of the conversation she wanted him to say what he did to her. She said he said, "I don't think I put it in you". As the parties talked about how to move forward William Thompson also said "Cindy I'll never deny it.". He did say “I’ll go to the police 41.

Eventually she went to police and gave a statement. After these events C.L. testified she once more attempted suicide and ended up on life support for 5 days 42. C.L. also testified that after the conversation with the Thompson's she returned to their residence with her friend Rosemary Kelly on another date. She felt that she needed to leave town and start over and so she needed money. During the confrontation William Thompson, in response to Rosemary Kelly saying that he prayed on young innocent girls that he said "he didn't know why he did it". 43.

During this confrontation C.L. testified that she demanded money to leave town. She asked for $250,000. The Thompson's refused to provide her that amount of money saying they could not and that they had already given her money. This occurred in August 2019 which was the same month she provided her statement to police. She said she did not recall saying that the meeting that “if it’s got to go to court, it’s going to get down and dirty.” An initial allegation by counsel for the accused that she had not mentioned the $250000 to police was later withdrawn and acknowledged that she had disclosed this to police. 44.

Under cross examination, C.L. confirmed that she was provided a check by William Thompson in September of 2015 for $5000 on which she wrote the amount. She obtained the check in the parking lot of the Point Church. When she was asked if she told Mr. Thompson that she knew what he did, and she would go to the police if he did not provide her money. She did not recall that. 45.

When it was put to her that she got money for William Thompson on the threat that she was would go to the police if the money was not provided, she acknowledged asking for money in several instances but denied threatening to the go to the police. When it was suggested that she received over $16000, she could not confirm the total amount but confirmed repeated instances of asking for money. 46. In cross-examination she identified a note, D-3, which she had written $250,000 on it. This was the note passed to the Thompsons in an attempt to solicit from them.

When asked if she said “give me $250,000 or you are going to prison” she could not remember saying that. She acknowledged a further attempt, in September of 2019, to obtain money, though she disputed who had suggested an amount. She acknowledged going to the police some time after this last occurrence. When it was put to her that the motivation was the end of payments to her, she said her delay in reporting to the police was a result of requests by Ruth not to do so due to the consequences to the Thompsons. 47.

She also acknowledged that she had threatened civil litigation against William Thompson, which she described happening in a fit of rage, and that she was aware that the more frequent or serious the allegations in a civil action, the higher the potential damages. 48.

When it was proposed to her that the knife she said was used to secure the door during the incidents described was known to her to have been used frequently to keep the children out of the room for non-nefarious purposes, she denied this and she said when this was raised in the meeting with Pastor Matthews, Ruth denied the knife being used to block the door. 49. She acknowledged sending a text to Ruth Thompson saying she wanted Bill Thompsons to pay for what he did. She could not say

whether she would have gone to the police is she had been provided the requested $250,000. She, on cross examination, stated she did not recall asking for money in her hospital room on the threat she would go to the police if she was not provided the money. 5 0. C.L. was confronted on cross examination that she has had more recollections since she provided her statement to police, including the reference to her sister mentioning a smell after William Thompson digitally penetrated her. This was not in notes that she provided to police.

She also said she has had further memoires but that she was not sure they involved Mr. Thompson. 51. The Crown also called Pastor Kevin Matthews. He testified that along with being the pastor at the Point Church, that he was a lifelong friend of the Thompson family and grew up with the children of William and Ruth Thompson. He indicated that near the time of the meeting described by C.L. that women Ruth Thompson had expressed concern for her well-being and ask if he would reach out to her to try and determine what was wrong. 52. Pastor Matthews indicated that in February 2019 he met with C.L.

At his church and she disclosed what had been going on. C.L. asked him to be at a meeting with the Thompson’s for support and, at her request, he had a member of his staff set up the meeting on May 23. 53. He had not revealed to the Thompson’s why the meeting was occurring, so he showed up a little bit early to provide a “heads up”. Upon arrival he advised them that C.L. and her husband would be joining them but he did not tell them what the particular nature of the meeting would be but he did say to William Thompson “You know what the meeting is about” and in response William Thompson turned visibly red. 54.

C.L. in her husband arrived 10 minutes after him. They all sat in the living room and he said to William Thompson “is there anything you want to get off your chest?” When William Thompson did not respond he said, “Bill I’m already aware of the situation.” William Thompson continued his silence and C.L. said, “Tell them what you did to me” 55. To this, Pastor Matthew testified that William Thompson said, “I don’t know the words.

I sexually assaulted you…I molested you… I’m not sure what the right words are.” C.L. wanted him to share more details and said things like “Tell them how many times” and “Tell them why.” 56. William Thompson said that he was sorry for what he had done to her but when pressed on how many times he replied, “I don’t remember”. Pastor Matthews remembered that the word repeatedly was used. In cross-examination, he confirmed that William Thompson did not say the word repeatedly, but he agreed with the word when it was used. Later through my questions, he said that this occurred during questioning about how many times.

Pastor Matthews said, “Was it once, was it twice, was it repeatedly, was it often, was it over the course of a week or a year or how long?” He got no response, so he said, “It doesn’t matter how many times, if it was repeatedly, did it happen repeatedly?” to which William Thompson nodded in affirmation. He also confirmed that William Thompson never, when pressed for how many times it occurred, said it only happened once or twice. William Thompson did specifically say in response to questions from C.L. about the frequency “I can’t remember how many times.” 57.

Pastor Matthew testified that he was surprised that William Thompson was forthcoming but that he began to minimize and in response to C.L.’s requests he said “I’ve already said I’m sorry …what more do you want me to do?” He said that William Thompson said that one occasion they had been laying on the couch and that she would crawl up and touch him and he would let her do that. Pastor Matthews remembered asking “Where was everyone else?” 58. C.L. mentioned the knife being put in the door trim.

Pastor Matthews had an immediate recollection about the Thompson’s using the knife because he had seen them do it and tried it in his own residence and got in trouble for doing so. When the knife was mentioned, however, neither William nor Ruth had any recollection of the use of the knife which surprised him because it was a normal occurrence in the Thompson household to see the knife. C.L. was insistent that William Thompson tell them about the knife but despite this he indicated he had no recollection of it and this seemed strange to pastor Matthews. 59.

He indicated that the meeting took 2 ½ to 3 hours and it was finalized with a three-step plan. When asked if the age of C.L. was discussed he indicated that there was no question it was when she was a little girl, that had been ongoing, and that it stopped when he, being William Thompson, was baptized or she began her menstrual cycle.

6 0. In cross-examination Pastor Matthews was asked if William Thompson agreed to go to the police and he replied that it was not something that they agreed had to happen. It was also put to him that William Thompson never admitted to any number of times that the event occurred, to which he agreed, but that William Thompson agreed that it had occurred repeatedly. 61.

During cross-examination he was asked if William Thompson indicated why this had stopped and he indicated it was because he wanted to get his life on track and knew he was headed down the wrong path and wanted to get baptized and take anew path in life. When pressed about why he did it, he said, “I don’t know why I did it” though he did admit to being molested himself. 62.

He also specifically testified that William Thompson said, “I can’t remember how many times…oh Cindy I can’t remember how many times.” Pastor Matthews also testified that he was shocked that the Thompson’s denied any knowledge of the use of the knife in the past. He also noted that the apology offered by William Thompson it was so quite he was not sure C.L even heard it. He only remembered one “I’m sorry” the remaining references were William Thompson saying “I’ve already said I’m sorry. What more do you want?”. 63. The Crown also called Rosemary Kelly, friend of C.L..

C.L. had disclosed to her what had occurred, and she was assisting her. At some point C. L. Just reached a point where she said “ I can’t do this anymore” and she, Rosemary Kelly, agreed to go with her to confront the Thompson’s. On August 22, 2019 she testified that they went to the Thompson’s house. She said that the situation was very awkward and that when they arrived C.L told Ruth that they “needed to talk”. 64. They sat at the kitchen table and leave Thompson joined them sitting directly across from them.

She indicated that C.L. was looking for answers and that when C.L. asked him why he did it he said, “I don’t know why I did it.” 65. She said that she got angry and said to William Thompson, “I know why you did it….Because molesters prey on very vulnerable situations.” She said that William Thompson was very embarrassed and very quiet. 66. She testified that C. L. Had said “She would consider settling without going to court” and that She put a piece of table with an amount of money written on it. When the Thompson’s looked at the paper they said, “No way…they didn’t have that amount of money.” 67.

At this point she indicated that she stood up and said she was ready to leave. She remembered that he could not answer when asked why he would do it but that she did remember he was trying to say it was only twice. When C.L. said it was numerous times he said something about twice or that he could only remember twice. She said he did not want to discuss it and that he said, “I don’t remember what I did.” He also said that “I always told you I would never deny it.” 68.

She testified that when he mentioned it only happening twice C.L. said she remembered more and provided a certain number, but that William Thompson said, “he didn’t remember.” 69. During cross-examination Rosemary Kelly acknowledged she didn’t remember everything about the evening in question but that she was aware that C.L. was going to ask for $200,000. When shown D-3 she denied seeing what was written on the note but that she recognizes writing as C. L.’s. When it was put to her that C.L. wanted money so as not to go the police she said that this was correct.

She did not remember C.L. saying I d “This isn’t going as I planned” nor that C.L. saying that it was going to get “down and dirty.” Defence Evidence 7 0. William Thompson testified in his own defence. He said he is a 75-year-old man who is married to Ruth Thompson and that they have two children Kevin and Brenda Thompson who are 51 and 48 respectively. 71. Mr. Thompson indicated that C. L., his niece as daughter to his brother Wellman Thompson, came to live with them in 1976 during the summer months.

He testified, contrary to what C.L. had testified, that she came down from Ontario by train with her grandmother, Henrietta Thompson, who is his mother. For a period of time she lived across the road on the South Napan Road.

72. During the course of his testimony Mr. Thompson was asked by counsel to confirm that he had pleaded guilty to two of the counts before the court. He was asked what events are you pleading guilty to? After describing them as sexual assault or indecent assault he began to describe the events. 73. With respect to the earliest of the events he described it as occurring in 1977. He had been working late, it was in the summertime, he was tired, and he fell asleep on the couch. When he awoke C.L. had his penis out of his pants and was playing with it.

He indicated he zipped his pants up and retreated into the kitchen. He indicated that his wife and two children were not in the house and he told C.L. that this could never happen again. 74. In the second incident, which he indicated at the end of August in 1980, he and C.L. were home alone as Ruth had taken their two children to Maine on a vacation with her sister. He indicated that he was on the La-Z-Boy laying back when he looked over and noticed C.L. on the couch. He said that C.L. had pulled her jeans and panties down to her knees. In response he went to the master bedroom and laid down on the bed.

She said that she lay down beside him and kissed him on the cheek. She pulled her panties off and he was not sure if she took out his penis or if he did. He again said to her “this cannot happen again”. He went out into the living room. 75. When confronted with the six alleged incidents that C.L. had described he indicated that they had never happened. 76. With respect to the check entered as D – 2 he indicated that he had signed the check but his writing was nowhere else on the check. He described how the check came into existence. He indicated that C.L. was in the hospital in the intensive care unit.

He and his wife and her husband were there. She had been in the unit for 2 to 3 days. One point she asked if her husband and Ruth Thompson could leave the room which they did. 77. C.L. said to him, “I know what happened long ago.” She told him she wanted $5000. He gave her the check at the parking lot of the point church after she had phoned him and asked if he had check ready for her. This was in September 2014. He provided her with a blank check with only his signature and told her “If you make it out for anymore than $5000 it will bounce.” 78.

He testified that C.L. asked, “Why did you do it?” He replied, “I don’t know …I’m sorry.” When asked about the butter knife that had been noted being used in the frame of the door he indicated that that was a regular occurrence that the children were aware of that was used to ensure that they would not come into the room unannounced. 79. When asked about the meeting arranged by Pastor Kevin Matthews William Thompson indicated that the secretary of the Point Church contacted them and indicated that Pastor Matthews wished a meeting and that he would come around approximately 7 o’clock.

He testified that when Pastor Matthews arrived before he sat down on the couch, he indicated that C.L. and her husband were coming as well. 8 0. He and his wife thought that the meeting might about finances at the church as he was a trustee there. He said that when C.L. and her husband came in Pastor Matthews “started drilling him”. He was asking him what happened years ago. He said he didn’t say anything for quite a while as his wife didn’t know but eventually, he said “Yes I molested her.” And specifically, he said that “She did play with my penis.” 81.

He said that C.L. was asking how many times it occurred and he responded he did not know. He said this as he was in shock and scared and didn’t know what to say. He indicated he did say to C.L. that he was sorry, and he thinks that he said it twice, an apology that he believes the Pastor acknowledged and expressed a belief in his sincerity. He said the meeting lasted approximately two and half to three hours and that his wife was not aware of what had occurred before the meeting. 82.

He testified that C.L. again came to the house in August, either the 22nd or 23rd which was a Thursday night with her girlfriend Rosemarie Kelly. He said they arrived at approximately 930 or 945 and that they were not aware that they were coming. He said they came barging in the door and ran into the kitchen. They said they wanted to get things resolved and everyone sat at the dining room table.

83. He indicated that C.L. was asking “why did you do it” to which he responded he didn’t know. He said they began discussing money and that was when C.L. put a piece of paper on the table and said, “pay me that money or go to jail”. After seeing the amount of money on the paper, $250,000, he said that they didn’t have that kind of money and that they’d already paid her $16,500 84. He testified as to other occasions when she demanded money including when she came into the house and said I need $3000 right now and that she was going to tell Chris and go to the police.

On another occasion she again threatened to go to the police when Ruth would not give her money, so they sent her any transfer of $2000. When C.L. and her family went to Florida she asked for $1800 for a damage deposit. She also demanded $700 to buy a washer and dryer in $1400 in rent money along with a damage deposit of $1480 85. Returning to the meeting at the house where Rose Mary Kelly was present, he confirmed that the demand for the money was accompanied by the threat that they would either pay her or he would go to jail.

She said if she was paid she would sign a piece of paper absolving him a responsibility but that if they were going to go to court “it is going to get down and dirty.” 86. He confirmed that during the meeting Rosemary Kelly said to him “I know why you did it….you prey on young offenders who won’t say nothing”. When asked how he felt about what he had done he said “I feel bad about it…really bad about it. It ruined her family’s life and our family’s life.” 87.

In cross-examination William Thompson confirmed that he acted as a father figure to C.L. and though she called him Bill she would introduce him as her father and that Ruth was a mother toward Cindy. 88. With respect to the first event he said that when he woke up and saw what C.L. was doing it stopped. He didn’t know where Ruth was but he put a stop to it. He thought his penis was erect he also thought his pants were not down but his zipper was down and the snap of his pants was fastened. He also testified that he was wearing underwear and that she had pulled his penis through the hole in the underwear.

The only thing he said to her was “This couldn’t happen again” and that he got up, put penis away and went out to kitchen. 89. He said that she was laying on the couch facing him and that she had managed to lie down unzip his pants and take his penis up all before he awoke. He believed she was 12 years old at the time. 9 0. With respect to the second occurrence he had described he indicated that C.L. had pulled down her pants and panties without saying anything and that in response he got up and went to the kitchen to get a drink of water and then went to lay down in his bed. He said he said nothing to C.L.. 91.

Without anything having been said C.L. also came to the bedroom and got into bed with him and kissed him on the cheek. At this time her pants and panties were up. He said nothing to her. He said that she pulled her pants and panties down and he didn’t know if he took his penis out or she did, all of which was done in silence, and that he rubbed his penis against her. He said he got up to stop this. 92. When asked why he didn’t put a stop to things right then and there he said he didn’t know why he didn’t stop it. He said the event in the bed lasted five or 10 seconds and his penis was not erect at the time.

He testified that C.L. was 14 at the time. After you get off the bed he went to the La-Z-Boy and they did not speak about the incident. 93. When questioned about how often he would’ve been alone was C.L. he indicated only once or twice because he worked six days a week. When questioned as to why he could not remember at the time of the meeting with Pastor Matthews how many times the events occurred he indicated that he was in shock. When it was pointed out to him that he had not spoken for 20 to 30 minutes that the shock surely would’ve passed he indicated that he was still confused.

He indicated that embarrassment was keeping him silent. 94. Ruth Thompson, the wife of William Thompson, testified that in the summer of 1976 C.L. moved into their house. Formal steps were taken in 1977 for them to become guardians of her to which her father Wellman Thompson consented. 95. When asked about a trip she took to Maine with her to biological children she indicated that they travelled there without C.L. as there was not enough room in the car. She did not know what year that this occurred though her children were younger than teenagers and perhaps around nine or 10.

She indicated that they only did this once.

96. Ruth Thompson testified with respect to a hospital visit in Miramichi when C.L. was confined there. She said that during the course of the visit C.L. wanted to speak to each person individually. She did so and spoke with William Thompson alone. She was not sure of when this occurred as C.L. has been hospitalized on many occasions. 97. With respect to a butter knife she indicated that during the 1970s to the early 80s that they used a butter knife to secure the door. It was easy to push the knife through the trim. It was part of the set of approximately 12 and that all the children knew about it.

It was used until 2000 when the entire house was renovated. 98. She testified that C.L. moved out of their house after graduation, in 1984, and got an apartment to go to NBCC. She stayed in that apartment for most of the year but then got pregnant and moved back in and tell she was married in August 1986. 99. Over the years C.L. has visited the house many times and meals with them using the same cutlery from which the butter knife would have been drawn. 10 0.

Ruth Thompson testified that she became aware of the allegations in May 2019 when the secretary from the church they attended called to make an appointment for them to meet with Pastor Kevin Matthews. He was to come at 7 o’clock on May 23 and the meeting had been set up a couple of weeks in advance. She recalled that secretary said that there was a business meeting coming up and it might have something to do with that. 101. She confirmed that she had known Pastor Kevin since he was a young boy and that he had been to their house many times but only as a pastor perhaps once. 102.

When she learned, during the course of the meeting, with the purpose of the meeting was she was shocked and embarrassed, and it was very difficult for. She said that Pastor Matthews asked when he arrived,” Do you know why I’m here” to which she replied “I have no idea….”. He then retorted “I think you might know why I’m here” and that “it was going to be a difficult meeting.” He also indicated that C.L. and her husband were going to join then for the meeting. 103.

During the meeting she said she just mostly sat and listened and that Pastor Matthews said that he knew everything and it would be in William Thompson’s best interest to take responsibility. Bill sat there and did not say anything. 104. She confirmed that C.L. was upset and that she was trying to ask questions such as “Why did you do it?” She was upset because William Thompson would not say anything. Pastor Matthews was asking questions and Bill was initially quiet but then he said, after quiet some time, that he sexually molested C.L..

He said that he was sorry it happened, and he would do anything to make it better including going to the police or to move away, 105. When shown D-3, the note with the amount of money written on it, she testified that she had seen that during the course of a meeting when C.L. and Rosemary Kelly came to their house in August 2019 at approximately 930 in the evening. She said Bill Thompson was in the sunroom and she was in the living room. C.L. and Rosemary came running into the house through the sunroom and C.L. demanded she get Billy as they were going to resolve things tonight. 106.

She confirmed that C.L. wanted to know why it happened and that William Thompson replied, “I don’t know why….it happened twice and I’m sorry it happened.” In response C.L. slapped paper down on the table and said, “you can pay me this in one week or you can go to prison.” 107. She said William Thompson responded, “We don’t have that kind of money” and that “We’ve already given you $16000.” She also confirmed the words that others are testified to about Rosemary Kelly indicating she knew why he had done it. 108.

Ruth Thompson testified that C.L. said that if she got the money, she wouldn’t ask for any more and she would not go to the police.

109. Thompson also testified that on another occasion, she thinks it was in October 2019, that C.L. ask her for $60,000 and said to borrow it from the bank and tell them it was an early inheritance. 11 0. In cross-examination she acknowledged that William Thompson would sometimes be alone with the children and there was no reason not to leave them alone with the children.

She acknowledged as well that during the course of the meeting with pastor Matthews she recalled that when asked how he times things that occurred with C.L. that William Thompson said he could not recall how many times THE LAW The Onus and Standard of Proof 111. As indicated above, Mr. Thompson is presumed to be innocent until the Crown has proven his guilt beyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial. The accused does not have to present evidence or prove anything. [15] 112. In R. v.

Wilson , Justice Richard (as he then was) noted the “evident danger” in cases where the prosecution is “effectively grounded solely on the testimony of a complainant, and the defence on the diametrically opposed testimony of the accused” that the burden of proof may be forgotten, and the case determined on the basis of credibility [16] . 113.

It is crucial for a trial judge, engaged in a case such as the one before me, not to forget the fundamental and intertwined principles that everyone is presumed innocent, that the burden rests with the Crown and that the burden can only be displaced on the basis of proof beyond a reasonable doubt. It is not enough for a court to believe that an accused is probably or likely guilty.

While the reasonable doubt standard does not require proof to an absolute certainty, nor is it “proof beyond any doubt” or “an imaginary or frivolous doubt ” [17] the standard falls closer to absolute certainty than proof on a balance of probabilities. 114. Reasonable doubt must stem from reason and common sense and is logically connected to the evidence or lack thereof. It cannot be grounded in speculation or conjecture. [18] 115.

The Crown must prove all of the essential elements of the offence beyond a reasonable doubt and in determining whether they have met this burden, I must consider the evidence as a whole. Reasonable Doubt and Credibility 116. It is crucial in a trial involving the assessment of credibility of an accused to assess that person’s evidence applying the reasonable doubt standard. In R. v. W.(D.) , [19] the Supreme Court provided an approach to the assessment of an accused person’s credibility by using a three-step analysis.

Those steps are as follows: a. in the first step, the trial judge should ask him or herself whether she or he believes the testimony provided by the accused. If so, an acquittal must be entered. If not, then b. the second step requires a consideration by the trial judge as to whether the accused person’s evidence causes her or him to have a reasonable doubt concerning the accused person’s guilt. If so, an acquittal must be entered.

However, if the answer to the first and second questions is no, then c. the final step in the analytical process developed in W.(D.) requires the trial judge to consider the totality of the evidence presented to determine if the accused’s guilt has been proven by the Crown beyond a reasonable doubt. [20] 117. The majority in W.(D.) never intended that this formula be a word for word script, nor the failure to use the words an automatic

ground for reversal. The Court has taken great pains since the decision to emphasize that the purpose of the wording in W.(D.). is to ensure that lack of credibility of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. In R. v. Dinardo,[21] the Court held that: In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.[22] 118. As noted in Wilson a plethora of jurisprudence has arisen from the W.(D.) and in that case the Court provides an extrapolation of theprinciples which have emerged.

I reproduce and adopt the principles regarding the standard of proof in criminal cases: A.1 Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility: W. (D.), at para. 26.In other words, the issue at the end of a trial is not credibility, but reasonable doubt: Sheppard, at para. 65, and C.L.Y., at para. 6. A.2 The ideal reasoning process to determine a matter, where the accused denies guilt and credibility is in issue, is to follow the W. (D.)formula: a. First, if the accused is believed, there must be an acquittal; b.

Second, if the accused is not believed but the trier of fact is left in a reasonable doubt by it, there must also be an acquittal; c. Third, even if the evidence of the accused does not raise a reasonable doubt, a conviction is only justified if the trier of fact isconvinced of guilt beyond a reasonable doubt on the basis of the evidence that is accepted: W. (D.), at para. 28. A.3 However, this formula is but a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and not merelya credibility contest; it is not the only route: C.L.Y., at para. 8.

It is the substance of the test that must be respected, not its literal tripartiteincarnation: R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455 (S.C.C.), at para. 14. A.4 A trier of fact need not firmly believe or disbelieve any witness or set of witnesses: W. (D.), at para. 27. A reasonable doubt need notrest upon the same sort of foundation of factual findings that is required to support a conviction. A reasonable doubt arises where aninadequate foundation has been laid: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 (S.C.C.), at para. 26, quoting Sharpe J.A.,dissenting, in R. v.

Kendall, (ON CA), [2005] O.J. No. 2457 (Ont. C.A.). A reasonable doubt does not need to bebased on the evidence; it can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to therequisite level: R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197 (S.C.C.), at para. 39. A.5 Trial judges are presumed to know the law with which they work day in and day out: R. v. B. (R.H.), (SCC),[1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (S.C.C.), at para. 18.

A.6 By stating that the accused is not believed, a trial judge is implicitly addressing the first two steps in W. (D.): Boucher, at paras. 29 and 59.[23] Credibility Generally 119. In addition to the considerations of W.(D.) this case requires a careful assessment of credibility. In R. v. Gahan,[24] the Court ofAppeal addressed the assessment of credibility by trial judges and held it is the function of weighing many factors. A useful staring point is to remember that a trier of fact can accept all of the evidence, some of the evidence, or none of the evidence of each witness.[25] 120.

Assessing credibility is not a function of a set of rules or a rigid methodology, but rather the “product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter”.[26] It is alsoimportant to remember that in assessing credibility a judge is concerned with both the truthfulness of a witness and the reliability of thetestimony of the witness. 121. Jurisprudence from the Supreme Court of Canada, the Court of Appeal of New Brunswick, and other courts provide someguidance.

The following non-exhaustive list of relevant factors in assessing credibility arises from that jurisprudence: a. the witness's opportunities for knowledge;[27] b. the witness's powers of observation;[28] c. the witness's judgment and memory;[29] d. the witness's ability to clearly describe what has been seen and heard;[30]

e. How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions ."; [31] f. the cogency of the account; [32] g. Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable; ii. whether the inconsistency is about something important, or a minor detail; and iii. whether the inconsistency seems like an honest mistake or a deliberate lie. [33] h.

Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other, though care should be taken not to put undue weight on this factor; [34] i. An absence of motive for the complainant to lie is a relevant to the fact-finding process [35] however, the trier of fact, must be careful to remember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turn into a reversal of the onus of proof; [36] and j.

The demeanour of the witness, though this but one of the elements that enter into the credibility of the evidence of a witness and can be both an unreliable indicator of truth and fallible. [37] 122. As indicated above, beyond the truthfulness of an account, the reliability of a witness is also a matter to be assessed. The fact that a witness may be “found to be credible does not answer the question of whether the evidence provided is reliable…The distinction is an important one and must be recognized by a trial judge in order to reach a just verdict.” [38] 123.

It is important in trials of this nature to avoid determining credibility based upon stereotypical reasoning or assumptions about how a person should react in any given situation. This is particularly true with respect to allegations of a sexual nature. [39] As Cloutier, P.CJ. said in R. v. Orser , it is “neither logical nor a matter of common sense to expect a complainant to behave in any particular way”. [40] The same is true of the accused. 124. The timing of disclosure in relation to sexual offences also been the subject of both statutory and common law action to avoid stereotypical reasoning.

As Justice Major noted, “the time of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.” [41] 125. One further note is relevant. The majority of the witnesses are testifying about events that occurred in different time periods. Without question, the more distant the events in the past the less precise memories might be. In C.L.’s case she is also, as an adult, testifying about some events that occurred when she was a child. In R. v.

W.(R.) [42] Justice Mclaughlin, as she then was, wrote this for the Court: 27 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. The Elements of the Offences 126. I have detailed the essential elements of counts 1 and 2 above. The charge of unlawful confinement requires the Crown to establish that the accused: a. Confined, imprisoned or forcibly seized; b. Another person;

c. Did the above without lawful authority; [43] and d. Had the intent to commit the act or cause the external circumstances of the offence. [44] 127. The actus reus is established if, for any significant period of time C.L. was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire. [45] No specific or ulterior intent is required to establish the mens rea . Analysis 128.

A consideration of whether the Crown has met its burden requires a careful assessment of the credibility of the witnesses, and with respect to the evidence of the accused and any other exculpatory evidence, a review of that evidence in the context of the Crown’s burden and the reasonable doubt standard. 129. Some issues are not contested, and I find, beyond a reasonable doubt that, the accused intentionally applied force to the complainant and that the accused intentionally applied force to the complainant in circumstances which had the quality of indecency.

The evidence of both the complainant and the accused establish these elements of the

section 149 offence regardless of whose evidence I might accept. 13 0. I also find that the activities, absent considerations of consent, would constitute

an act of gross indecency regardless of whose evidence I might accept. 131. I believe the complainant in her description of the events. Specifically, I believe that on multiple occasions William Thompson assaulted her in the manner that she described and I believe that when those assaults occurred in the master bedroom, he inserted a knife through the door trim to restrict access or egress from the bedroom.I believe that she was under the age of 14 when these events occurred and I believe that she did not consent to the events. I believe her for the following reasons. a.

By the admission of the accused there was contact that was sexual in nature (and barring issues of consent) would constitute both an indecent assault and gross indecency. Based on this there is no real dispute that some conduct that could be criminal occurred. This is not, therefore, a circumstance where there is any real dispute that something occurred; b. Despite the passage of years and her assertion that memories of the events came back to her on various occasions, her memory of details is good. She was able to relate where the events occurred, their general nature and when events began and ended.

Where her memory was not complete or she was unsure she said so; c. She did not embellish the events. I will return to this below, but, for instance, where she was unsure of whether the accused engaged in a particular type of conduct, specifically penile penetration, she acknowledged she did not know; d. Her version of events is supported by other evidence. Beyond the guilty pleas of the accused, the accused, when confronted by Pastor Matthews, not only acknowledged abusing the complainant, but affirmed that it happened repeatedly; e.

While caution is warranted when considering any non-testimonial demeanour, the complainant’s repeated insistence in the confrontation at which Pastor Matthews was present, that it happened more than once and her anger at the accused when he was unable to recall how many times it happened, is something I can consider. I also am aware that to some extent that her assertions may have the character of a prior consistent statement.

Such a statement cannot be used as a form of self-corroboration to prove that the incident in fact occurred. [46] The statements may be used for the limited “permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”. [47] f. C.L’s assertion that William Thompson used a knife through the door trim as a means of keeping the door closed is a detail that is consistent with the nature of the activities she described.

The accused’s counsel has asserted that this was a detail manufactured from her knowledge of the well-known general practice of the Thompson’s of using the knife to keep children out of the bedroom. C.L. has effectively denied this and said seeing the knife was a triggering event. There is support for the assertion that the Thompson’s practice was known to others from Pastor Matthews. He knew of it from his visits to the house. This may, but does not necessarily, discredit C.L’s assertion that it was a triggering event. The fact that one person was aware of a practice does not mean that everyone was.

Aside from that, it does not discredit the consistency of the activity with William Thompson’s desire to keep C.L. in the room during the assaults and the other children out; g. The witness testified in a manner that appeared to be truthful, though I am aware and direct myself that appearances of telling the truth can be both an unreliable indicator of truth and fallible. As such, I place little weight on the complainants’ testimonial demeanour.

132. In coming to the conclusions, I have above, I have also considered the matters that call, at least in the submission of counsel for the accused, the credibility of the complainant into question. 133. First, the complainant repeatedly asked for money from the accused and his wife. She specifically tied the receipt of that money to her silence or, alternatively, the lack of receipt of the money to her reporting matters to the police. I accept the evidence of the accused and Ruth Thompson that there was the explicit connection between the request for money and C.L.’s reporting to police.

This certainly could call into question C.L’s credibility. Were this a case where there was any doubt that the accused had engaged in some form of sexual contact with a child or adolescent under his care, this may have had more impact on my assessment of her credibility. I have considered this, however, in the context of the uncontroverted fact that William Thompson did abuse C.L. She may well have been trying to obtain money for her silence, but she was not seeking money to not go forward about events that did not, in some way, occur. 134.

Counsel for the accused points out, however, that the complainant acknowledged that she had considered a civil suit and knew that the more serious the allegations the more lucrative such an action might be. This, he asserts, is motivation for deception and exaggeration on the part of C.L. This is, however, belied by what she described. C.L. certainly could have embellished events to a far greater degree than that to which she testified.

I return to her testimony regarding the last assault where she said that William Thompson asked to put his penis in her vagina but that she was unable to say whether he did so or not. Following the inference that I am asked to draw by counsel for the accused, if C.L. was seeking to maximize a civil judgment by exaggerating events, then she could surely have alleged penile penetration and vaginal intercourse. She did not. 135.

Coupled with the attempts to extort money, counsel for the accused points to the testimony of William Thompson that C.L. said that if she was not given the money, and it had to go to court “it is going to get down and dirty.” Neither C.L. or Rose Mary Kelly recall her making that statement. I find that it is, based upon her behaviour at the time, likely that she did say those words. Neither the fact that she said it, not her stated absence of memory that she said it, diminished my belief in her version of events. She did not suggest she was going to lie. 136.

Counsel for the accused also points to what he suggests is a fabrication on the part of the complainant when she says that William Thompson never apologized. I do not accept that this is a fabrication. As Pastor Matthews noted, the only time he heard William Thompson say I am sorry was so low that he wasn’t sure that C.L. heard it. After that he kept saying. “I already said I’m sorry. What more do you want me to do?” 137. I have indicated that I believe the complainant.

I am mindful in this finding that I have yet to detail how I have reconciled this finding with the fact that the accused testified and that I must consider his evidence in the W.(D.) framework. I will describe my analysis of his and the other defence evidence below, but for now, I find that I do not believe his evidence on the issue of the nature of the sexual encounters between he an C.L. , nor does it leave me in any reasonable doubt on the issue. 138. Before moving to the other evidence, I note that the evidence of Pastor Kevin Matthews was both credible and reliable.

He testified in a forthright manner, he had no motive to lie and he seemed believable. His memory of events was good and given his position in the confrontation, facilitator and moderator, he was keenly attuned to events. I noted no significant inconsistencies in his testimony and he was measured and precise. When he made a mistake he acknowledged it. When he characterized something he was able, upon questioning to describe why he characterized in the manner he had and conceded alternative possibilities. 139. For the most

part I found Rose Mary Kelly to be credible. She did not try to embellish her evidence and it is supported, to some degree by the evidence of other witnesses including the accused. Her memory of events was, however, imprecise and imperfect, though she was able to provide some detail. 14 0. I turn to the evidence of the accused. The accused, in his testimony, admitted that sexual activity between he and the complainant took place but he testified that it happened only on 2 occasions.

To assess his evidence, I must view it through the lens of the Crown’s burden and the requirement to establish all elements beyond a reasonable doubt. The framework suggested by W.(D.) is the starting point. 141. As mentioned above in the first step in W.(D.) , the trial judge should ask him or herself whether she or he believes the testimony provided by the accused. If so, an acquittal must be entered. If not, then the trial judge proceeds to the second step. 142. With respect to the evidence of the accused on the issue of the number and nature of sexual encounters, I do not believe the accused.

My lack of belief is based on the following: a. His explanation of events does not harmonize with the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. His description of the first event involves a pre-pubescent girl waking him by extracting his penis from his zipped pants. First, in his version of events his response to this was not to speak to anyone including his wife, but to simply zip up his pants and act as if nothing happened.

He had done nothing wrong in his description of the event and a girl, for whom he was responsible displayed highly sexualized behaviour and yet he did nothing. While there is no typical behaviour for any person, this reaction is simply unbelievable; b. The description of the second event is likewise not credible. In this version, a 14 year old girl, his niece and a girl for whom he was acting as a parent, stood before him and removed her pants and panties to expose herself to him. His reaction, in his version of events, was to wordlessly go to his bedroom and li down on the bed.

When C.L. came in and lay down beside him, he was unsure if she or he tool out his penis, but he was certain the encounter ended quickly, mere seconds, and that he simply went to the kitchen for a drink of water. Again, this is simply unbelievable. His reaction to this young girl exposing herself, unprompted, was not to stop her, tell someone, or even speak to her, but to go wordlessly to his bedroom; c. His version of two discrete events, separated by years, is inconsistent with his admissions to Pastor Matthews.

Pastor Matthews evidence, which I believe, was that when questioned about the number of times he assaulted her, he was unable to remember how many times it occurred, but he agreed that it happened repeatedly. This was in the context of having been asked if it happened once, twice and then agreeing it happened repeatedly. Counsel for the accused went to pains to elicit evidence that this was a product of the accused’s shock at being confronted. I do not accept this. First, the admissions of the accused did not come at the beginning of the confrontation but some time after the arrival of the group.

The accused had had time to overcome any shock of the confrontation. Second, he had already been confronted by C.L. There was no surprise other than that she had revealed it to others. Third, his suggestion that shock had impacted his memory of events seems incredible in the context of his alleged memory of two very discrete events. Having previously been confronted by C.L., and having in his version of events only had two brief sexual encounters with C.L., it is unbelievable that he would not be able to recall the number of times it had occurred; d.

The accused testimony of two discrete events of very short duration, is also inconsistent with William Thompson’s assertion to Pastor Matthews in the meeting that his assaults stopped when he decided to be baptized and change his life. In the accused’s version of events, there was no sequence of events that had to be stopped or life that had to be changed. I do not believe that there were just two events (nor his description of them). I do believe what he told Pastor Matthews that he made a conscious decision to change and stop the behaviour in which he had been engaging; e.

The witness did not testify in a manner that appeared to be truthful. He tried to minimize the possibility that he would have been alone with the children, particularly C.L. suggesting it only occurred on a couple of occasions. This is both unlikely given the time period that C.L. Lived in the house and is also inconsistent with the evidence of Ruth Thompson. I direct myself, however, that appearances of telling the truth can be both an unreliable indicator of truth and fallible. As such, I place little weight on the accused’s testimonial demeanour. 143.

The second step of W.(D.) requires a consideration by the trial judge as to whether the accused person’s evidence, considered in the totality of all the evidence, causes me to have a reasonable doubt concerning the accused person’s guilt. If so, an acquittal must be entered. The evidence of the accused, considered with all the evidence, does not cause me to have a reasonable doubt for the same reasons as described above. 144. Before moving to the final step in the W.(D.) framework I must also assess the evidence of Ruth Thompson who testified for the accused.

She was not present for the events that occurred almost 4 decades ago though she offered some testimony from that time frame, she also testified to more recent events involving her and her husband’s interaction with C.L. . Her testimony, if believed, might impact negatively on the credibility of the complainant as described above and also support William Thompson’s version of events. 145. Again, the first step in W. (D.) is to ask myself whether I believe the testimony of the witness and, if so, and that evidence is exculpatory, then an acquittal must be entered. 146.

As with any witness, I can believe some, all or none of what she said. With respect to her evidence, I believe much of it. In fact, some of it is conformity with the evidence of other witnesses including the complainant. I believe that at some point in the past she travelled to Maine with her sister and their children without C.L. I believe her description of the attempts by C.L. to obtain money from them, including her description of C.L’s demeanour during these events. I believe that during a hospitalization C.L. asked to speak to her, her husband and C.L.’s husband separately.

None of this evidence, however, is exculpatory and it does not cause me to doubt the version of events offered by C.L. of the events in the late 1970’s and early 1980. 147. I do not believe some of what Ruth Thompson says or at least I believe that it was a minimization. She testified that during the meeting where Rose Mary Kelly was present, William Thomson said it only happened twice. I believe he said this, but I also believe Rose Mary Kelly when she says C.L. said she remembered more and provided a certain number but that William Thompson said, “he

didn’t remember.” That Ruth Thompson did not add this detail may be from lack of memory or an attempt to minimize events. 148. Despite my belief in much of what Ruth Thompson says, much of it is not specifically exculpatory and indeed, much is corroborating of the fact that some form of sexual criminality occurred on the part of her husband. She acknowledges his admission to abusing C.L. in some way. She supports the idea that she and her husband acted as parents to C.L.

The other information she provides may call into question some assertions of C.L. but they do not cause me to doubt the veracity of her accounts of the abuse she suffered. 149. The second step of W.(D.) requires a consideration by the trial judge as to whether the witnesses’ evidence, considered in the totality of all the evidence, causes me to have a reasonable doubt concerning the accused person’s guilt. It does not for the reasons I have described above. 15 0.

The final step in the analytical process developed in W.(D.) requires the trial judge to consider the totality of the evidence presented to determine if the accused’s guilt has been proven by the Crown beyond a reasonable doubt. 151. I have considered all the evidence in this matter. I accept the version of events of the complainant concerning the encounters between herself and the accused and based upon that consideration I find, beyond a reasonable doubt, the Crown has proven all the essential elements of the offences contrary to s. 149 and s. 157.

I find, beyond a reasonable doubt that on multiple occasions at the location specified in the information and during the date range specified in the information: a. The accused applied force to the complainant directly or indirectly; b. The accused intentionally applied force to the complainant in circumstances which had the quality of indecency; c. The complainant was under the age of 14 years at the time of the alleged offence (and thus incapable of consent by virtue of s. 140 of the Criminal Code in place at the time).

If she had turned the age of 14 years by the date of the last occurrence, I find beyond a reasonable doubt that she did not consent to the application of force; and d. C.L. is a female person. 152. With respect to the charge of gross indecency, I find beyond a reasonable doubt that: a. The accused is the person who actually committed the offence of gross indecency; b. The offence of gross indecency occurred in the place specified in the Information q during the date range specified in the Information; c. The acts of gross indecency were with the complainant; d.

The acts committed are a marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality; [48] e. That there was no consent by the complainant or she did not consent validly due to the accused inducing the complainant to engage in the activity by abusing a position of trust, power, or authority. In the circumstances I accept, and considering the nature of the relationship between the accused and complainant, there was no genuine consent. 153.

As such, I find William Thompson guilty of the offence contrary to s. 149 , indecent assault. The accused argues, and counsel for the Crown agrees, that I should apply the principles in R. v. Kienapple [49] applied in this case. Gross indecency

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