HIS MAJESTY THE KING - v. -, 2023 SKKB 260

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 260 Date: 2023 12 01 Docket: CRM-RG-00117-2022 Judicial Centre : Regina BETWEEN: HIS MAJESTY THE KING - and - BERNARD LYNCH PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Counsel: Christopher White for the Crown Andrew Hitchcock for the accused REASONS FOR ORAL JUDGMENT DATED DECEMBER 1, 2023 BERGBUSCH J.

DECEMBER 4, 2023 Introduction [ 1 ] The accused, Bernard Lynch, is charged with the offences of assault and sexual assault, contrary to ss. 266 and 271 of the Criminal Code , RSC 1985, c C-46 . [ 2 ] The alleged events occurred on August 7 and 8, 1988, while Mr. Lynch was the assistant coach of the Regina Pats and M.S. was a 17-year-old prospect of the team. [ 3 ] This case involves historical allegations of events that occurred approximately 35 years before the trial for which there is almost no evidence apart from witnesses’ memories.

I have been required to consider carefully the accuracy of witnesses’ recollections, bearing in mind the time that has elapsed. If I am left with a reasonable doubt, the accused is entitled to the benefit of that doubt and must be acquitted.

The Indictment [4] Mr. Lynch is charged in a two-count indictment as follows: Bernard Lynch of Regina, Saskatchewan, stands charged: THAT HE, the said Bernard Lynch on or about the 7th day of August, A.D. 1988 at or near Regina, Saskatchewan, did commit asexual assault on [M.S.], contrary to

section 271 of the Criminal Code. THAT HE, the said Bernard Lynch on or about the 8th day of August, A.D. 1988 at or near Regina, Saskatchewan, did commit anassault on [M.S.], contrary to

section 266 of the Criminal Code. Fundamental Principles Presumption of Innocence and Burden of Proof [5] In reaching my decision, I have borne in mind several principles fundamental to criminal law. First, theaccused is presumed innocent of the offences charged until the Crown has proven his guilt beyond a reasonable doubt: R v Lifchus, (SCC), [1997] 3 SCR 320 at para 39 [Lifchus]. Second, the Crown must prove each element of the offence with which theaccused is charged beyond a reasonable doubt.

In Lifchus at para 39, the Supreme Court provided a model jury instruction to explain thecriminal standard of proof as follows: 39 … The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [Emphasis added] [6] A reasonable doubt can arise from the evidence or from the absence of evidence: R v Wilde, 2022 SKCA 74 atpara 29, 416 CCC (3d) 1. Credibility and Reliability of Witnesses [7] As the trial judge, I must consider the testimony of each witness with an open mind.

I may rely upon humanexperience about human behaviour and on common sense to interpret the evidence, but I must guard against making common senseassumptions that find no basis in the evidence: R v J.C., 2021 ONCA 131 at paras 58-62, 401 CCC (3d) 433. [8] When I assess witnesses’ testimony to determine its credibility and reliability, I may take into account manyfactors, such as whether witnesses appeared to be telling the truth, whether their testimony was internally and externally consistent, andwhether they had any motive to fabricate.

This list of relevant factors is not exhaustive. [9] Credibility has to do with the truthfulness of the witness. Reliability has to do with the accuracy of thetestimony, which involves an assessment of the witness’s ability to observe, recall, and recount evidence. The reliability of evidenceconcerning an alleged historical sexual assault and a common assault must be carefully scrutinized. This was discussed recently in R vL.R., 2023 ONSC 3911 at para 26: [26] In Sanichar [2012 ONCA 117, 280 CCC (3d) 500], Blair J.A. cited, with approval, the decision of Minden J. in R. v McGrath,[2000] O.J.

No. 5735 (S.C.J.) where he too cautioned that careful scrutiny must be paid to the reliability of evidence in cases of historicalsexual assaults. Minden J. identified a number of factors that should be kept in mind. They include: (

a) A witness's difficulty in recollection due to the passage of time must not lead to an "undiscriminating acceptance" of his or herevidence. A trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistenciesbetween present testimony and prior accounts; (

b) At the same time, an abundance of detail in the recounting of an event does not necessarily imply an accurate memory; and, (

c) A trier must bear in mind the "subtle and not so subtle influences" that may have, over time, distorted memory. The influences uponthe life of a witness over the course of many years may, for instance, make it difficult to fairly assess an apparent lack of motive tofabricate. [10] As the credibility and reliability of witness accounts are central in this case, I have instructed myself to followthe direction given by the majority in R v W.(D.), (SCC), [1991] 1 SCR 742 at 757-8 [W.(D.)]:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to thatissue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically,the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe theaccused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering theaccused's evidence in the context of the evidence as a whole. See R. v.

Challice (1979), (ON CA), 45 C.C.C. (2d) 546(Ont. C.A.), approved in R. v. Morin [ (SCC), [1988] 2 S.C.R. 345], supra, at p. 357. [Emphasis in original] Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines: 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. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement thatthe Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law.

Every effort should bemade to avoid mistakes in charging the jury on this basic principle. [Emphasis added] [11] In R v Van Deventer, 2021 SKCA 163, 407 CCC (3d) 291 [Van Deventer], the Saskatchewan Court of Appealrecently commented on the approach to be followed in cases where the credibility and reliability of witnesses, including the accused, arein issue. In particular, the Court of Appeal discussed the analysis when the accused’s testimony consists of a bare denial of the sexualactivity, which is the case here.

The phrase, bare denial, is “common wording used in the jurisprudence to describe a situation where anaccused testifies that the alleged sexual activity did not occur”: Van Deventer at para 16. [12] In Van Deventer, Justice Tholl explained that, when a trial judge is conducting a W.(D.) analysis, the judge isentitled to examine the credibility and reliability of Crown witnesses before analyzing the testimony of the accused.

In assessing thecredibility of the accused’s evidence at stage one of the W.(D.) analysis, the trial judge may consider all of the evidence adduced at trial.However, the trial judge cannot simply compare the evidence of the accused and the complainant or another Crown witness and choosethe version of events the judge prefers. [13] The trial judge can consider a bare denial in the context of the evidence of the complainant and the evidence as awhole.

As Tholl J. explained at paras. 24-25 of Van Deventer: [24] When an accused’s evidence contains a bare denial of the allegations, a trial judge should consider this denial in the context ofthe evidence of the complainant and, indeed, the evidence as a whole. As long as the assessment of the entirety of the evidence follows adiscernable pathway through the W.(D.) analysis, a trial judge is permitted to examine the credibility of a complainant in their assessmentof the accused’s bare denial. An accused’s testimony should not be assessed in isolation at the first stage of the W.(D.) test.

In order toproperly assess the accused’s denial, a trial judge must be permitted to consider the credibility and reliability of the allegations againstthe accused. In my view, it would be difficult to determine the credibility of a bare denial without also considering the entirety of theevidence.

The evidence of the complainant provides the basis for an accused’s denial, so considering one without the other could oftenbe a pointless exercise. [25] A finding of credibility and reliability regarding a complainant’s testimony about the alleged conduct can be the reason forrejecting the testimony of an accused, when considered in the context of the entirety of the evidence.

As long as a trial judge is mindfulof the burden of proof and the principles from W.(D.), they can reject the accused’s evidence on the basis that the complainant’sevidence is accepted to the extent that it leaves no room for reasonable doubt.

However, this does not address the issue of whether afinding of credibility and reliability for a complainant leads to the necessary corollary that a trial judge must disbelieve the accused. [Emphasis in original] [14] What a trial judge cannot do is reject the evidence of the accused and find there is no reasonable doubt solelybecause the judge finds the complainant to be credible and reliable. ELEMENTS OF THE CHARGED OFFENCES Offence of Sexual Assault [15] Mr.

Lynch is charged with sexual assault contrary to s. 271 of the Criminal Code which is an indictable offencefor which a conviction carries liability to imprisonment for a term of not more than 10 years, where the complainant is not under the ageof 16 years. [16] To establish the offence of sexual assault, the Crown must prove, beyond a reasonable doubt, the actus reus,which consists of three elements: (

i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: R vEwanchuk, (SCC), [1999] 1 SCR 330 at para 25 [Ewanchuk]; R v Chase, (SCC), [1987] 2 SCR 293; Rv G.F., 2021 SCC 20 at para 25, 404 CCC (3d) 1 [G.F.]. The first two elements are determined objectively, while the third is determinedsubjectively with reference to the complainant’s state of mind concerning the touching. No consent is obtained if the accused induces thecomplainant to engage in the activity by abusing a position of trust, power or authority: s. 273.1(2)(c). No consent is obtained where thecomplainant submits or does not resist by reason of the exercise of authority: s. 265(3)(d).

[ 17 ] To establish the mens rea , the Crown must show beyond a reasonable doubt that (

i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting or was reckless or wilfully blind as to the absence of consent: Ewanchuk at para 42 ; G.F . at para 25 . Offence of Assault [ 18 ] Mr. Lynch is also charged with assaulting M.S. contrary to s. 266 of the Criminal Code . The elements of this offence are the intentional application of force, directly or indirectly, without the consent of another person. N o consent to an assault is obtained where the complainant submits or does not resist by reason of the exercise of authority: s. 265(3)(d) .

Review of testimony [ 19 ] The Crown called two witnesses: the complainant, M.S., and L.K., who was M.S.’s girlfriend during the events in issue in this prosecution and for a short period thereafter. Mr. Lynch also testified in his defence. I will first review the witnesses’ evidence. Testimony of M.S. [ 20 ] At the time of the trial, M.S. was 52 years old. He resides with his wife in ----------, Saskatchewan, and they are parents to four daughters and have two grandchildren.

M.S. works in --- ------------ as a regional manager with ---------- , his employer for the last 21 years. [ 21 ] M.S. grew up in Edam, Saskatchewan. On his first birthday he was given a pair of skates and hockey was an important part of his youth. [ 22 ] During the 1987-1988 season, M.S. made the Battlefords North Stars, a team in the Saskatchewan Junior Hockey League [SJHL]. The SJHL is a junior A league, a tier below the Western Hockey League [WHL], which is major junior. [ 23 ] By his own description, M.S. was a pretty good hockey player: small but quick and offensively gifted.

At 16 years old, he had a strong rookie season, scoring 26 goals and assisting on 26 others, good for second place in scoring on his team. He won SJHL rookie of the year and was selected to participate in the SJHL all-star game. [ 24 ] M.S. first met the defendant, Bernard Lynch, at the 1988 SJHL all-star game. Mr. Lynch was the coach of the Humboldt Broncos and had been chosen to coach the all-star team to which M.S. had been selected. M.S. recalled meeting Mr. Lynch the day before the all-star game at a team practice. The all-star game was unusually hard-fought, and M.S. recalled that he enjoyed playing for Mr.

Lynch, who was intense and competitive. [ 25 ] In 1988 M.S. was excited about his hockey prospects. He was one of three 16-year-olds placed by the Regina Pats [Pats] on its 50-player protected list. M.S. hoped to make the Pats for the 1988-89 regular season. That summer, M.S. received a telephone call at home from Mr. Lynch, who by then had joined the Pats as an assistant coach. Mr.

Lynch asked whether M.S. would like to teach at the Pats’ first annual summer hockey school for minor hockey players. [ 26 ] Exhibit P-1 is an advertisement for the hockey school published in the July 23, 1988 edition of the Regina Leader-Post. It shows that the school would take place from August 7 to 13, 1988. Head instructors listed were Bill Hicke, Dennis Sobchuk – Head Coach Pats, and Bernie Lynch – Assistant Coach Pats, along with other instructors and many Pats players. The school was held at the Murray Balfour Arena on 68 Massey Road, Regina, Saskatchewan.

The advertisement stated that room and board were available at the Vagabond Motor Inn [Vagabond]. [ 27 ] According to M.S., Mr. Lynch told him that he would not have to worry about accommodations or meals during the hockey school. He would stay at Mr. Lynch’s apartment the first night, and then at the Vagabond to watch over billeted players the following nights. [ 28 ] M.S. testified that he was fine with staying with Mr. Lynch, because he was a coach and M.S., then 17 years old, trusted him. M.S. told his parents about the plan.

He was excited about the invitation because it showed the Pats were interested in him and he thought he had a good shot at making the team. [ 29 ] M.S. said that he listened to his coaches, who he saw as authority figures. Players needed to fit into the coach’s system if they wanted to succeed. Players who did not listen to their coaches would get benched, removed from special teams, or find themselves out of the line-up altogether. [ 30 ] M.S. testified that on Sunday, August 7, 1988, he drove his vehicle down to Regina for the hockey school. This was the first time he had driven his car any distance.

He left around lunchtime to arrive in Regina by late afternoon. He recalls getting a speeding ticket on Highway 11 between Davidson and Craik. He does not remember what time he reached Regina. He took the Pasqua Street exit off Highway 11, turned right and drove a few blocks to a gas station. He thinks it was an Esso station. Mr. Lynch had arranged to meet him there. [ 31 ] When he met up with Mr. Lynch, he apologized for being late and explained about the speeding ticket. Mr. Lynch said not to worry and suggested that maybe the team would pick up the ticket. [ 32 ] Mr.

Lynch said he had to pick up some beer and then they would go back to his apartment. M.S. recalls telling Mr. Lynch that he did not drink. M.S. testified that by that age he had tried alcohol but he did not like it. He had never consumed alcohol to the point that he had lost control. [ 33 ] Mr. Lynch told M.S. to follow him in his vehicle while he drove to purchase some beer. M.S. thought this was

weird. They drove their cars eastward, then south on Albert Street to an off-sale liquor store. M.S. remembers that Mr. Lynch gave him the finger in the rearview mirror while they drove. This stood out because it was unusual. When they reached the off-sale, M.S. waited in his car. After Mr. Lynch purchased some beer, he got back in his car and M.S. followed him to his apartment building. The drive took about 10 to 15 minutes. [ 34 ] Mr. Lynch’s apartment was on the second floor of a two-storey complex. The apartment had an entrance area, with a bedroom on the left.

M.S. recalled seeing a bed in one bedroom and boxes, but no bed, in a second bedroom. He recalled that the living room area had a couch or loveseat and a TV to the right. There were patio doors onto a balcony. [ 35 ] When M.S. brought his stuff in, Mr. Lynch told him to throw it in his bedroom. Mr. Lynch said he could sleep on the couch or in his bed with him. He said M.S. could just stay in his room, like on the road. M.S. had shared a bed with fellow players on the road but never with a coach and he thought it was weird for Mr. Lynch to say that. [ 36 ] Shortly after Mr.

Lynch and he got to the apartment, M.S. left the building and found a payphone at a nearby 7- Eleven gas station. Mr. Lynch had a landline in his apartment, but M.S. wanted to call his parents privately to tell them about his speeding ticket. He recalled explaining that he wanted to make the call and Mr. Lynch telling him he needed to get off his mother’s teat. [ 37 ] Once they were back together in the apartment, Mr. Lynch said to M.S. “we are going to have some beer” and he cracked one open for each of them. M.S. recalls saying that he did not drink and did not want any. He remembered Mr.

Lynch telling him it was time to be a man and giving him a beer. Mr. Lynch told him to do what coach says, so M.S. drank some of the beer. He testified that he felt pressured and could not refuse. [ 38 ] They sat at the kitchen table in Mr. Lynch’s apartment drinking beer. M.S. could not recall how much Mr. Lynch had to drink. M.S. was trying to sip his beer. Mr. Lynch told him to drink it and offered him another one. [ 39 ] M.S. testified that Mr. Lynch may have ordered pizza, although he did not recall eating. He also did not remember much of their conversation, although he did recall Mr.

Lynch talking about his neighbours. Mr. Lynch said that his neighbours would get upset because he would walk around the apartment naked or in his underwear. M.S. testified that he did not know what to say in response, but he thought this was weird. [ 40 ] Mr. Lynch told M.S. to take off his clothes and go out on the balcony. He also told M.S. to take a drink of his beer. When M.S. refused initially, Mr. Lynch told him to do what coach says. [ 41 ] M.S. testified that he was wearing shorts. As he had been told, he took all of his clothes off and went onto the balcony.

He could see parking stalls and cars below, and apartments at a distance. He did not stay on the balcony for long and came back in and put his clothes back on. M.S. thought Mr. Lynch was sitting at the kitchen table, where he had a vantage point of the balcony. [ 42 ] At one point, Mr. Lynch went to the bathroom and M.S. tried to pour some of his beer out in the kitchen sink. He recalled feeling some effects from the beer and commented that he was only 5 foot 8 inches tall and 150 lbs at the time. [ 43 ] Mr. Lynch talked about going to a video rental store to rent an adult movie.

M.S. did not want to do that and thought it was wrong but he does not believe he said anything. He testified that he had never watched a movie like that with a coach. They walked to a nearby video rental store. M.S. recalled feeling off-balance during the walk. He remembered that Mr. Lynch went to the adult movie

section of the video store but did not recall if Mr. Lynch ended up renting a movie. M.S. has no memory of watching a pornographic movie with Mr. Lynch. [ 44 ] M.S. remembered thinking that he needed to get out of there. He testified that he could not drive because of the effects of the alcohol. At the time he believed that, if you wanted to sober up, you would drink coffee or have a shower. Back at the apartment, M.S. told Mr. Lynch he wanted to have a shower and then he went into the bathroom. Mr. Lynch was out in the living room area. [ 45 ] M.S. was sure he locked the bathroom door.

However, he testified that Mr. Lynch came into the bathroom with no clothes on and got into the bathtub beside him. M.S. was already showering. M.S. recalled saying, “What are you doing?” and Mr. Lynch responding, “You shower with guys at the rink.” [ 46 ] M.S. testified that he did not invite Mr. Lynch into the shower, Mr. Lynch did not say he was going to join him, and M.S. did not want to be in the shower with him. M.S. remembered saying, “This is weird and kinky.” M.S. testified that he was intimidated and scared because Mr.

Lynch was bigger than him, was his coach and an authority figure, and was telling him to do what he was told. [ 47 ] M.S. testified that Mr. Lynch reached to touch him. M.S. said “don’t” and told him “no”, but Mr. Lynch grabbed him and stroked his penis. M.S. pulled back and told him no. Mr. Lynch kept talking while holding M.S.’s penis. He talked about masturbation and said that is what should take place. M.S. said, “If I do, is this it?” Mr. Lynch said yes, so M.S. gave in. Mr. Lynch grabbed M.S.’s hand and put it on his erect penis. M.S. could not say whether Mr. Lynch was circumcised or not. He touched Mr.

Lynch nowhere else. [ 48 ] M.S. testified that he had his eyes closed but opened them as he ejaculated and he saw the ejaculate hit the tub floor. M.S. got out of the tub right away. Mr. Lynch was masturbating himself when M.S. left the bathroom. [ 49 ] M.S. testified that he darted out and put his clothes on to sleep. He said he was going to bed on the couch. He recalled that Mr. Lynch was not happy with that. M.S. testified that Mr. Lynch downplayed what had happened as being no big deal – it was like having a shower with the guys in the dressing room.

[ 50 ] M.S. said he did not sleep very much that night. [ 51 ] M.S. remembered that the next day he went with Mr. Lynch downtown to a sports store owned by Mr. Hicke, one of the Pats owners. From the store Mr. Lynch and he went to the Agridome, the arena where the Pats played, so that Mr. Lynch could pick up some things from the office before going to the Murray Balfour Arena. M.S. believes they did not get to the rink until sometime in the afternoon.

He recalled that registration was from 1:00 p.m. to 4:00 p.m., and it had already started before they arrived. [ 52 ] M.S. recalled that, while they were at the Agridome, Mr. Lynch slapped him in the rear with a hockey stick and punched him several times in the arm while saying, “Don’t hit the coach.” M.S. said it seemed like Mr. Lynch was trying to be like one of the guys. When he got him in a tender spot, Mr. Lynch would say, “Don’t hit the coach.” One time after Mr. Lynch hit him, M.S. clenched his fist in response, and Mr. Lynch said again, “Don’t hit the coach.” M.S. did not take any of this as a joke.

When they were walking out of the Agridome, Mr. Lynch hit him in the testicles with a ring of keys, which caused M.S. to double over. [ 53 ] Later that afternoon, Mr. Lynch and M.S. made their way to the hockey rink, but they were not there long. Eventually, they ended up at the Vagabond. Mr. Lynch had to go meet with the Pats brass. Once M.S. was alone, he left to phone his parents. M.S. decided that he would go home the next morning and he told his mother he was returning home in the morning and he did not have to teach. [ 54 ] M.S. had to stay in the same hotel room as Mr.

Lynch as that had been part of the plan. M.S. tried to delay going back to the room. Kids from the hockey school were playing football in the parking lot. He thought that was a safe place for him. When he eventually went back to the room, probably around or after 10:00 p.m., Mr. Lynch was not happy with him. There were two beds. M.S. slept in one; Mr. Lynch in the other. M.S. says that Mr. Lynch hinted at something like the night before; M.S. said no. They had no physical interaction that night. [ 55 ] The next morning, he told Mr. Lynch he was leaving and said he had a baseball game and he was pitching. Mr.

Lynch asked if that was the real reason, and he said yes. [ 56 ] M.S. testified that he had made up his mind that he was not going to play for the Pats. He did not want to be around Mr. Lynch and needed to get out. Over the next few days, M.S. decided he would tell the Pats he was going for an NCAA scholarship. If he wanted to do that, he would not be able to play for the Pats as that would make him ineligible for a university scholarship.

He testified that he was on the radar for U.S. college teams because he had scored a goal and an assist during the SJHL all- star game. [ 57 ] During the summer of 1988, M.S. had been dating L.K. Before he left, he talked to her about the Pats hockey school and she was excited for him. On the day that he returned from Regina, he saw her at some point, but he did not tell her about the incident with Mr. Lynch until a couple of days later when he broke down and told her the story. They discussed telling his parents what had happened. He testified that his parents found out what had happened from her.

He recalled that he had gone out with a friend and, when he came back, her car was at the house. [ 58 ] M.S. did play for a WHL team later in the fall of 1988. He started with the Battlefords North Stars in the SJHL. In about October, the Pats dropped him from their protected list, and he was picked up by the Seattle Thunderbirds. He was called up to play against the Saskatoon Blades. The team wanted him to go back to Seattle, but he wanted to go home to North Battleford. The Saskatoon Blades traded for him within a few weeks.

He played some games with them and then with the Brandon Wheat Kings, but he finished the season with the Battlefords North Stars. After that, he played games with Brandon, one game with Victoria, and eventually for the Pats in 1989-90, when Brad Tippett was the coach. 1989-90 was his last year in the WHL. He continued playing in the SJHL through the 1991-92 season. [ 59 ] At the end of the 1992 season, his junior career was over. He had a hockey agent and played in Richmond, Virginia but left in February 1993 because he wanted to go home. Home was his safe place.

He testified that the only team he ever finished a season with was the Battlefords North Stars. [ 60 ] From 1993 to 1999, M.S. played for teams in England, Nashville, and Phoenix, eventually concluding his professional hockey career with a team in Telford, England in 1999. [ 61 ] He testified that he came forward to police more than thirty years later because of news reports that Mr. Lynch was the subject of an R.C.M.P. investigation. He felt he needed to speak up so that Mr. Lynch could not continue to coach.

He explained that he had not come forward sooner because, back then, there was an unwritten code and it was not an era when you could come forward with such allegations. He also testified that he did not want his name to come out at the time. [ 62 ] During cross-examination, M.S.’s recollection of details of the hockey school was tested. He agreed that he had initially given a different date of the incident to a police interviewer, July 17, 1988. He said that he knew the events happened from a Sunday to Tuesday in the summer of 1988.

M.S. also could not recall what other Pats players or coaches were at the Pats hockey school. He did remember the name of one player who was there, Curtis Nykyforuk. [ 63 ] On further cross-examination, M.S. thought that he might have been slapped in the rear with a hockey stick when he was at the Murray Balfour Arena. He could not remember what the arena looked like.

He agreed that some parents would have been watching the instruction taking place on the ice and that there would have been more than one instructor on the ice. [ 64 ] He recalled that there was a conditioning camp on August 7, 1988 at night and he skated with a few players. He did not remember who ran the conditioning camp but he was excited to scrimmage with other players. [ 65 ] He was not sure when he had driven his car to the Vagabond, but he remembered leaving from the hotel in his car to drive home.

[ 66 ] M.S. was not challenged on the details of his account of what took place at Mr. Lynch’s apartment. He denied that he did not spend the night at Mr. Lynch’s apartment or that he did not have beer and a shower at the apartment. He also disagreed that Mr. Lynch flew to Calgary on the Saturday before the hockey school. L.K. [ 67 ] The court heard testimony from L.K., M.S.’s girlfriend for about six months in 1988. L.K. is now an educator, working as the assistant superintendent in a catholic school division in Alberta.

She had been M.S.’s girlfriend for a few months before he left for the Pats hockey school in August 1988, and they broke up a few months later. They are not close friends but remain on cordial terms. [ 68 ] L.K. testified that she remembered M.S. being very immersed in hockey and hoping to play for the Pats and to make the NHL one day. She recalled that M.S. was extremely excited about the Pats hockey school, which she remembers because he went away. She recalled that M.S. was kind-hearted, fun-loving, and liked to party within reason, but he did not really drink.

When she saw him after he returned from Regina, his demeanour had changed: he was clingy, was not light-hearted, and there was a cloud about him. She testified that, after some prompting, he revealed to her what had happened in Regina a week or two after his return. She told him he needed to tell his parents. When he was reluctant to do so, she said that she would talk to his parents and they agreed that she would meet with them in his absence. [ 69 ] Counsel for the accused submitted that L.K.’s testimony could not be used as evidence of the truth of M.S.’s complaint that he was sexually assaulted.

L.K. did not testify about what M.S. revealed to her in August 1988. This information could only have been tendered to rebut an allegation of recent fabrication: see, e.g., R v Stirling , 2008 SCC 10 , [2008] 1 SCR 272 [ Stirling ]. In this case, Mr. Lynch’s counsel emphasized that the defence does not contend M.S. has recently fabricated his allegations against Mr. Lynch. [ 70 ] Mr. Lynch’s counsel argued that L.K.’s evidence is admissible for the limited purpose of establishing that she observed a change in his demeanour between the time before he left for the hockey school and following his return.

I agree with this submission. While her testimony is admissible, I find that L.K.’s testimony does not assist me in determining whether Mr. Lynch sexually assaulted M.S. in August 1988 and I have not considered it for that purpose. This does not mean I have found L.K. to be unworthy of belief or unreliable. I have concluded that her observations of M.S.’s change in demeanour are of limited assistance, at most, in assessing the reliability of M.S.’s evidence as a whole. Bernard Lynch [ 71 ] At the time of trial, Mr. Lynch was 69 years old. He began coaching hockey when he was 21 years old. In 1983, Mr.

Lynch began coaching the Humboldt Broncos, an SJHL team. The team consisted of 17 to 20 year-old players, although an exceptional 16 year-old could play junior A hockey. [ 72 ] As head coach, Mr. Lynch had many responsibilities: recruiting players, forming a staff, finding suitable accommodations (billets) for players, team communications, purchasing equipment, and fund-raising. Finding and recruiting players involved a combination of talking to others in the profession, making a connection with individual players, and finding out what individual players’ needs were. Mr.

Lynch said that when he spoke to a player on the telephone, a parent was usually on the other line. He then said that he would never talk to a player without a parent on the telephone as well. [ 73 ] Mr. Lynch testified that being a head coach was very demanding, 12 months a year, 60 hours a week. During the offseason, he would begin interacting with players for recruiting purposes during the first week of July. Training camp would begin in mid-August. During the season, the team would play 30 games away from home. On these trips, the players, head coach, assistant coach, and trainer would travel by bus.

Parents did not travel on the bus and were not wanted. [ 74 ] Mr. Lynch was also the Humboldt Broncos’ general manager. In that role, he was responsible for booking hotel rooms for players. He testified that he would never book a hotel room for a coach to stay with a player. He had never been on a trip where a coach and player roomed together, which he said was inappropriate. [ 75 ] Mr. Lynch testified that it was important for coaches to learn about players’ personalities and characteristics. Sometimes he would speak to their mothers.

He agreed that a coach is an authority figure who decides whether players get to play. [ 76 ] He recalled that M.S. played for the Battlefords North Stars and on the SJHL north all-star team he coached in 1988. The league president picked the all-star team. The game usually took place during the second week of February, about two-thirds of the way through the season. The all-star tournament consisted of one practice, the game, and a banquet. Mr. Lynch remembered meeting M.S. briefly at the all-star game and introducing himself.

He does not recall a specific conversation with M.S. from that time. [ 77 ] In April 1988, Mr. Lynch’s contract with the Humboldt Broncos was up and he was not re-hired. He wanted eventually to coach in the professional ranks. A short time later, Mr. Lynch met with three of the owners of the Pats: Bill Hicke, Ted Knight and Morley Gusway, and they hired him to the position of assistant coach. [ 78 ] He was excited to start with the Pats on July 3, 1988, as joining a WHL team was a big step up. His boss was Mr. Sobchuk, the general manager and head coach, who, according to Mr.

Lynch, was not happy that he had been hired. Mr. Lynch testified that he did very little during his first month with the Pats. He did no recruiting as it was not his role.

[ 79 ] Mr. Lynch suggested to the Pats that they should put M.S. on their 50-player protected list. He watched M.S. play for the Battlefords North Stars and at the all-star game and was amazed at his skill. He testified that two members of the ownership group were against it. [ 80 ] Mr. Lynch testified that he knew the Pats were going to hold a hockey school in August 1988, but he was not going to be there. Mr. Lynch had already agreed to participate in the Hockey Canada Program of Excellence, from August 12 to 20, 1988, and he had been named the head coach for Team Western.

He said that the tournament was preceded by a coaching conference. He identified himself in a photograph of the team, marked as Exhibit D-1. Exhibit D-1 is a photograph of Team Western from the National Under 17 Hockey Festival, and shows that the tournament took place from August 12-20, 1988, in Calgary, Alberta. [ 81 ] He was afraid to tell the Pats about this commitment, but eventually he did. When Mr. Lynch told Mr. Sobchuk that he would not be at the hockey school, Mr. Sobchuk was not very happy. [ 82 ] Mr. Lynch testified that Mr. Sobchuk told him to give M.S. a call. Mr.

Lynch spoke to M.S. twice on the telephone. He advised M.S. that he was on the Pats protected list and talked to him about being a player coach at the Pats hockey school. He recalls telling M.S. that he would not be paid. He denied telling M.S. that he would stay at his place. [ 83 ] Mr. Lynch recalled agreeing to meet M.S. at the Shell gas station located across from Riffel High School in Regina. Mr. Lynch talked to M.S.’s mother and M.S. kept insisting that he did not know Regina, so Mr. Lynch agreed to meet him at the Shell gas station. [ 84 ] M.S. was asked to come to the Pats hockey school because Mr.

Lynch kept insisting that he was skilled. He was going to have a chance to participate in the Pats’ conditioning camp. Mr. Lynch wanted the Pats to have a chance to evaluate M.S. and to expose him to other players. [ 85 ] Mr. Lynch’s plan was to get M.S. checked into the hotel as quickly as possible and then to go over to the hockey rink. He testified that he met M.S. on August 5, 1988. M.S. followed him to the Vagabond, and Mr. Lynch got him checked in. They had to get to the rink by 7:00 p.m. for an informal skate of senior hockey players. The Pats had ice time two days before the start of the hockey school.

He recalled that there were quite a few players there, but he was the only coach. They did warm-up drills and had a scrimmage. [ 86 ] Mr. Lynch said that he had to get home to get packed because he was leaving for Calgary the next morning. He got M.S. settled in because M.S. had no one else to help him. [ 87 ] Mr. Lynch testified that he left for Calgary between 10:00 a.m. and 12:00 p.m. on Saturday, August 6, 1988 on an Air Canada flight. He went up on August 6 to meet the other coaches, including Dave King. Beginning on Sunday, August 7, they had classroom sessions for the coaches. Mr.

King conducted on-ice practices, using players from Calgary, to put on his coaching clinic. Mr. Lynch saw this as an opportunity to up his coaching certification. [ 88 ] In August 1988, Mr. Lynch lived in a second-floor apartment near O’Neill Catholic High School and St. Peter Elementary School in northwest Regina. He testified that police officers lived below and beside his apartment. [ 89 ] He denied that M.S. spent the night in his apartment or that they discussed M.S. staying with him. He does not recall talking to M.S. about a speeding ticket.

He did not tell M.S. that the Pats would take care of the ticket and said he had no authority to make such an offer. He denies buying beer for M.S. and himself and says he never had a beer with M.S. When asked whether it was possible M.S. came to his apartment, he said he had no reason to take him there but he guessed it was possible. However, he denied that M.S. spent the night at his apartment. He denied telling M.S. to take off his clothes, taking a shower with him, or touching him. He denied staying at the Vagabond at all. [ 90 ] He said the next time he saw M.S. again was in court for the trial. [ 91 ] Mr.

Lynch testified that he asked Mr. Sobchuk how M.S. had done at the hockey school and was told that M.S. had left. Mr. Lynch says that he called M.S. twice, but no one answered. [ 92 ] He testified that he was docked two weeks pay for attending the tournament in Calgary. Mr. Lynch was the Pats assistant coach from July until November 1988, when he became the team’s head coach. He was let go in May 1989, after the team missed the playoffs by five points. [ 93 ] Under cross-examination, Mr. Lynch testified that he remembered the name M.S. when he was first confronted with the allegations by police.

He had not followed M.S.’s career. Over 47 years, he had coached thousands of players, and M.S. was just one of them. However, he said that he immediately knew who the police were talking about, because he had been hearing gossip and innuendo since 1989. [ 94 ] Under further cross-examination, he agreed that he recruited M.S. and had two conversations with him to get him to come to the camp. He made arrangements for M.S. to come to the school and got permission from his parents. He said he felt responsible for M.S. and had to look out for him. He talked to several players about M.S.

He knew others would take care of him. He had to push the brass to put M.S. on the 50-player protected list. Mr. Hicke and Mr. Knight were initially against him because of his size. [ 95 ] During cross-examination, he was confronted with the newspaper advertisement (Exhibit P-1), in which he was identified as one of the head instructors. Mr. Lynch claimed he became aware of the hockey school advertisement during the third week of July, and he committed to coach Team Western at about the same time. He told the Pats about his commitment during the last week of

July, because he was concerned that it was going to get back to them. [ 96 ] He testified he was not going to skip an opportunity with Hockey Canada. [ 97 ] During further cross-examination, he was shown a newspaper

article that indicated Team Western’s first game took place on August 15, 1988. The result was a 6-6 tie with Team Quebec. He said he did not quarrel with the accuracy of the article. He testified that the players arrived on August 12. He said that the coaching clinic was an advanced part of the hockey festival and began on August 7. He insisted that he flew out on Saturday, August 6, while the players arrived the following Thursday. [ 98 ] Mr. Lynch said that the Pats were not happy with his departure for the Calgary event but they talked it out.

Mid- August was when things ramped up, so he had not been absent at a critical time. [ 99 ] He denied any inconsistency with his being promoted to head coach in November 1988 despite the fact that the Pats had been unhappy with him a few months earlier and responded that Mr. Sobchuk was not a very good coach. [ 100 ] He testified that he was a complete neat freak and would not have left boxes in his apartment. At the time he was married with two young children, but they did not move to Regina until the start of training camp. He also testified that they only bought a kitchen table and couch after his wife moved.

He then acknowledged that it was possible he had a couch in early August 1988. [ 101 ] Under further questioning, Mr. Lynch testified that Mr. Hicke told him how to get to the Vagabond. He said he told M.S. “let’s do it the easy way” and gave M.S. directions to meet him at the Shell gas station across from Riffel High School on Rochdale Boulevard. He testified that his apartment was just west of Riffel High School.

He thought meeting M.S. was a good gesture. [ 102 ] He admitted it was possible they took a detour to his apartment, but did not know why they would have since it would have made him late for his first practice with the Pats. [ 103 ] He testified that M.S.’s mother had told him M.S. was inexperienced and he accepted responsibility for getting him to the hotel out of the kindness of his heart. He then asked senior Pats players to watch out for M.S. [ 104 ] Mr. Lynch agreed that there was a culture of silence in hockey and that hockey was not a safe place for complaints.

Submissions of the Parties Accused’s Submission [ 105 ] Mr. Lynch’s counsel argued that no one will ever really know what happened in August 1988. He referred to the decision of Elson J. in R v K.W.W ., 2023 SKKB 89 , and in particular to Justice Elson’s discussion at para. 61 regarding the difficulty of applying the reasonable doubt standard to a sex offence trial involving conflicting witness evidence, which often comes down to the word of one witness against another.

As the authorities quoted by Elson J. confirm, the trial judge cannot decide the case based upon which witness’s evidence was more credible. [ 106 ] Mr. Lynch’s counsel emphasized that Mr. Lynch testified he took M.S. to the hotel on August 5 and then left on August 6, 1988, for meetings and educational programs. He argued there is no objective evidence that Mr. Lynch’s version is wrong. He also directed me to the Court of Appeal’s decision in Van Deventer , where the court dealt with the circumstance of an accused’s “bare denial” of an allegation.

At para. 21, after referring to W.(D.) , Justice Tholl stated: “… t he acceptance of the complainant’s testimony and other evidence that is inconsistent with an accused’s bare denial can provide a sufficient explanation for the rejection of the accused’s inconsistent evidence …” [Emphasis added] Defence counsel argued that here we only have two witness accounts and no “other evidence” inconsistent with the accused’s bare denial. [ 107 ] Defence counsel conceded that M.S. testified well.

He appropriately acknowledged in his testimony that he first reported that the incident happened in July rather than August 1988. Defence counsel emphasized that there was no corroborating evidence for M.S.’s version of events. For example, if Mr. Lynch and M.S. shared a room at the Vagabond, the Pats would have paid for the room but no evidence of that was tendered. There was also no witness to confirm that Mr. Lynch was at the hockey school.

Absence of evidence is part of the context of this case. [ 108 ] Defence counsel also questioned the logic and plausibility of M.S.’s version of events, arguing that even predators try to avoid detection. He suggested that it was not believable that Mr. Lynch would have taken M.S. to a sports store owned by one of the Pats’ owners, Mr. Hicke, as this would have been a crazy risk. [ 109 ] Finally, defence counsel commented on the limited purpose for which L.K.’s evidence could be used, which I have addressed elsewhere.

The Crown’s Submissions [ 110 ] The Crown agreed that this is a case where the principles in W.(D.) are central and that this is not a credibility contest between the accused and the complainant. However, the Crown argued that M.S.’s evidence was credible, reliable, and replete with detail and the court should reject the evidence of the accused. M.S. was candid and answered questions directly, while his inability to remember innocuous details was understandable. [ 111 ] The Crown submitted that Mr. Lynch was in a position of trust and M.S. was essentially powerless to resist his actions. Mr.

Lynch used his authority as M.S.’s coach to force beer on M.S. and to touch him in a sexual manner. M.S.’s recall of the sexual act was clear and visceral and it was inconsistent with fabrication.

[ 112 ] The Crown also noted that M.S.’s explanation of what took place in Mr. Lynch’s apartment was not challenged in cross-examination. [ 113 ] In response to the defence suggestion that the accused would not have taken the risks involved in M.S.’s story, the Crown suggested many factors mitigated the risk of being caught: the victim’s age, his position as a recruit in relation to the coach, the prevailing culture of silence in hockey, and the accused’s careful choice of victim. [ 114 ] Finally, the Crown argued that the accused’s testimony was illogical.

For example, his evidence that he kept his participation in the Calgary tournament a secret from the Pats and that they were angry when they learned of it is irreconcilable with his promotion to head coach a few months later. The Crown also suggested that Mr. Lynch was at times evasive and combative in his responses to questions. ANALYSIS [ 115 ] In this case, apart from agreeing that he met M.S. at a gas station in northwest Regina before the Pats hockey school, Mr.

Lynch denies all of the events central to M.S.’s allegations. [ 116 ] Following W.(D.) , I will first discuss whether I believe the evidence of the accused. [ 117 ] Mr. Lynch says that he met M.S. on Friday, August 5, 1988 at a Shell gas station in northwest Regina and that M.S. followed him in his vehicle to the Vagabond on south Albert Street, where he helped M.S. get checked in to his room before they went together to the hockey rink. He says that he left M.S. shortly thereafter and went home to pack up so that he could leave for Calgary the following morning.

He says that he flew to Calgary between around 10:00 a.m. and 12:00 p.m. on August 6, and he remained in Calgary for a coach’s conference followed by the National Under 17 Hockey Festival from August 12–20, 1988, where he was the head coach of Team Western. Crown counsel described this as a “quasi alibi” defence. [ 118 ] Mr. Lynch’s participation in the National Under 17 Hockey Festival from August 12-20, 1988 is confirmed by Exhibit D-1. [ 119 ] However, I do not believe Mr. Lynch’s evidence that he left for Calgary on August 6 and that he did not participate in the Pats hockey school.

I also do not believe his account that he met up with M.S. on August 5 at the Shell gas station in northwest Regina, led him to the Vagabond to get him checked in, and then left him at the hockey arena that evening, two days before the start of the hockey school. My reasons for not accepting Mr. Lynch’s evidence are the following. [ 120 ] First, Mr. Lynch testified that M.S. kept insisting he did not know his way around Regina, so that is why they arranged to meet at the Shell gas station on Rochdale Boulevard, across from Riffel High School.

He was then going to lead M.S. from the service station in northwest Regina to the Vagabond. This explanation does not make sense. The Vagabond was located on south Albert Street. M.S. was traveling south on Highway 11. The simplest route would have been for M.S. to continue traveling south on Highway 11, which turns into Albert Street at the north edge of Regina. Mr. Lynch could have told M.S. to stay on Albert Street, one of Regina’s main arteries, and follow it southward until he reached the Vagabond on south Albert.

Instructing M.S. to take the Pasqua Street exit off Highway 11, and then to turn right on Rochdale Boulevard until he reached a service station across from Riffel High School, was more complicated and diverted him from the most straightforward path to the hotel. [ 121 ] Mr. Lynch explained that he was new to Regina himself and was not familiar with the location of the Vagabond. However, as described above, this hotel was located on one of Regina’s major thoroughfares. If Mr. Lynch was going to lead M.S. to the Vagabond, he had to learn where it was located himself. He testified that Mr.

Hicke explained the location to him. Considering this additional evidence, Mr. Lynch’s reason for meeting M.S. at the Shell gas station on Rochdale Boulevard to lead him to the Vagabond makes even less sense to me. [ 122 ] Second, if Mr. Lynch’s objective was to get M.S. settled in a hotel room at the Vagabond on Friday, Mr. Lynch could have simply arranged to meet M.S. there and get him checked in. On the other hand, Mr. Lynch lived in the northwest area of Regina. Meeting M.S. in that part of the city made sense if the plan was in fact for M.S. to stay with Mr.

Lynch overnight, as M.S. testified. [ 123 ] Third, Mr. Lynch says M.S. came down to Regina on August 5, 1988, two days before the start of the hockey school. It does not make sense that the Pats would have agreed to put M.S. up in a hotel for two nights. At that time M.S. was just a player on the Pats protected list and, as Mr. Lynch testified, the owners were not enthused about him as a player. Why would they have agreed to cover this additional cost under those circumstances? [ 124 ] Fourth, if Mr.

Lynch’s goal was to ensure that M.S. made it safely to the Vagabond for the start of the hockey school, he could have asked someone to watch out for M.S. on Sunday, August 7. Mr. Lynch said that he had to get M.S. settled in because there was no one else to help him, but he also said that he knew other people would take care of M.S. after Mr. Lynch got M.S. settled in on Friday. This testimony is inconsistent. Moreover, as a WHL team use to holding try-outs and billeting players, the Pats organization would have known how to welcome an out-of-town teenager like M.S.. [ 125 ] Fifth, Mr.

Lynch’s explanation about the conflict between his involvement in the National Under 17 Hockey Festival and his new assistant coaching duties with the Pats was inconsistent and confusing. Under cross-examination, he testified that his commitment to coach Team Western at the Calgary tournament was only firmed up at about the same time as he learned that he was supposed to be one of the head instructors at the Pats hockey school. By that point, he had begun his employment with the Pats, so coaching at the Calgary tournament was already a conflict with his new duties.

In other words, on his evidence he could have declined

the coaching commitment in Calgary once he was hired by the Pats. It does not make sense that he would have failed to disclose his intention to participate in the Calgary tournament from the Pats until the end of July, knowing that it was a direct conflict with the hockey school. [ 126 ] However, the Calgary tournament was only a complete scheduling conflict with the hockey school if Mr. Lynch actually left for Calgary on August 6, 1988, as he claims. If the dates of the two events are taken at face value, they only overlapped by one day.

He was listed as one of the instructors at the Pats hockey school from August 7-13, 1988. Exhibit D-1 indicates that the Calgary tournament ran from August 12-20, 1988. [ 127 ] Mr. Lynch testified that he was excited to join the coaching staff of a WHL team as the next step in his coaching career. He also testified that his direct superior, Mr. Sobchuk, was not happy with his hiring. It is not plausible that his first act was to antagonize his boss by skipping out on his head instructor duties at the Pats hockey camp so that he could attend a coaching conference before the start of the Calgary hockey tournament.

It does not make sense that he would have jeopardized his relationship with his new employer from the start. [ 128 ] His explanation that Mr. Sobchuk was unhappy that he was hired and the Pats docked him two weeks pay for attending the coaches conference and tournament in Calgary is also hard to reconcile with the fact that he was subsequently promoted to the head coach position by the Pats, with Mr. Sobchuk remaining as general manager and his direct superior, in November 1988. [ 129 ] Mr.

Lynch’s description of the Calgary coaches conference was extremely vague, even allowing for the fact that this event took place 35 years before the trial. A coaching conference run by Dave King, a well-known Canadian and international hockey coach, would have been memorable. He also testified that the assistant coaches of the teams only arrived on the following Thursday, August 11, 1988, at the same time as the players. It is puzzling but certainly possible that a coaches conference put on by Hockey Canada did not include the assistant coaches as well. [ 130 ] Sixth, in his testimony, Mr.

Lynch was at times adamant that M.S. did not come to his apartment at all, but also conceded several times that this was possible. He seemed to assert that he was badgered by police investigators to acknowledge that this was possible. If the plan was to get M.S. to the Vagabond and then to the rink as quickly as possible, there is no reason for Mr. Lynch to equivocate on this point. [ 131 ] Seventh, during his testimony Mr. Lynch did not dispute M.S.’s description of the layout of the apartment, which was surprising given his testimony that M.S. did not set foot in or stay at the apartment.

His only points of disagreement were M.S.’s recollection that he had boxes piled in one of the bedrooms and whether he had a kitchen table at the time. [ 132 ] In observing Mr. Lynch testify, I found him to be evasive and combative at times. [ 133 ] For the foregoing reasons, I do not find Mr. Lynch to be a credible or a reliable witness, especially given the inconsistencies in his evidence, and I do not believe his testimony. [ 134 ] I will now provide my assessment of M.S.’s credibility and reliability as a witness. M.S. testified in a straightforward manner and did not appear to embellish.

He acknowledged that he did not have a clear memory of all of the events surrounding his attendance at the Pats hockey school in 1988. However, he remembered many details of his trip to Regina and the events involving Mr.

Lynch. [ 135 ] Many aspects of M.S.’s trip to Regina were novel and memorable for him: his first lengthy car trip on his own; being stopped and ticketed for speeding and having to disclose the ticket to his parents; his excitement at the opportunity to attend the Pats hockey school as a potential player for the team. [ 136 ] Other aspects were startling to him: his future coach stating that they were going to pick up beer and giving him the finger as they drove to the off-sale liquor store; drinking beer with his coach; listening to the coach talk about walking around his apartment naked; being pressured to take off his clothes and stand on the balcony naked and then giving in to that pressure and doing as he was told; going to a video store to rent an adult movie; having his coach join him naked in the shower; the coach touching his penis and masturbating him and having him touch Mr.

Lynch’s penis; distinctly remembering the moment when he ejaculated and then left the shower; and the events of the next day when Mr. Lynch struck him, including in the testicles. M.S. described some of these events as “weird” and “kinky.” I find it completely understandable that M.S. would have a vivid, clear memory of these out-of-the ordinary elements of his trip to Regina. It is also understandable to me that his recall of other facts, such as whether Mr.

Lynch ordered pizza or details of his participation in the practice skate, is less clear. [ 137 ] There was one aspect of M.S.’s account where I was left with some uncertainty. M.S.’s testimony about being slapped with a hockey stick by Mr. Lynch was challenged in cross-examination. M.S. then acknowledged that this incident might have happened at the Murray Balfour Arena rather than when he was running errands with Mr. Lynch at the Agridome.

M.S.’s uncertainty about the details of this allegation leaves me with a reasonable doubt about that specific allegation of assault. [ 138 ] M.S.’s actions subsequent to this event are also consistent with his having been through a traumatic experience. His girlfriend observed a change in his demeanour upon his return. He abandoned his pursuit of a position with the Pats and returned to the Battlefords North Stars to start the 1988 season.

Eventually, he made the WHL, but for several years he did not last an entire season and returned to the Battlefords North Stars to finish the year. [ 139 ] M.S. has also provided a plausible explanation for his delay in making a complaint to the police. Both he and Mr. Lynch testified about the culture of silence that pervaded hockey culture in the 1980s. Both testified that rumours followed them that something had happened between them. This helps to explain why M.S. preferred to move on with his life and not make a complaint to the police.

Further, his explanation that he went to the police in 2021 after he saw Mr. Lynch’s name in a media report is understandable.

[ 140 ] Finally, M.S. has no motive to fabricate his account, which is something I can take into account in assessing his credibility: see Stirling at para 12 . [ 141 ] Defence counsel contended that this is a case where there is only the evidence of Mr. Lynch and M.S. However, this overlooks the two exhibits marked at trial: Exhibit P-1, the hockey school advertisement, and Exhibit D-1, the photograph of Team Western. Exhibit P-1 indicates that Mr. Lynch was one of the head instructors at the hockey school from August 7-13, 1988. This evidence is consistent with the complainant’s account. Mr.

Lynch explains Exhibit P-1 by saying that he was not aware of the advertisement and did not, in fact, participate in the hockey school. Mr. Lynch offers as confirmatory evidence of his version of events, Exhibit D-1, but it only shows that the tournament took place from August 12-20, 1988, and does not confirm that Mr. Lynch also attended a coaches conference beginning on August 6, 1988. L.K.’s testimony also provides some confirmation that M.S. had had a traumatic experience during his trip to Regina. [ 142 ] When I review the whole of the evidence, I find that I do not have a reasonable doubt of Mr.

Lynch’s guilt on the basis of the evidence that I do accept. It is not the case that I have found M.S. to be credible and reliable and, therefore, I do not accept Mr. Lynch’s evidence. Rather, I do not believe Mr. Lynch’s evidence and, when I consider his testimony with the other evidence, I am not left with a reasonable doubt. [ 143 ] Accordingly, I find that the Crown has proven the following facts beyond a reasonable doubt: (

a) M.S. traveled from North Battleford to Regina on August 7, 1988, to attend the Pats hockey school. (

b) Mr. Lynch was the Pats assistant coach in August 1988 and was in a position of authority in relation to M.S., who was a prospective player for the Pats. (

c) Mr. Lynch met M.S. at a service station in northwest Regina on Sunday, August 7, 1988. (

d) The plan was that M.S. would stay overnight at Mr. Lynch’s apartment before checking into the Vagabond the following night. (

e) After purchasing beer at an off-sale liquor store, Mr. Lynch had M.S. follow him in his vehicle to Mr. Lynch’s apartment. (

f) Mr. Lynch pressured M.S. to drink beer with him at the apartment and to take his clothes off. (

g) Later that evening, M.S. took a shower to try to sober up from the effects of the beer. (

h) Mr. Lynch undressed and entered the shower naked. (

i) Mr. Lynch pressured M.S. to touch his penis. (

j) Mr. Lynch masturbated M.S. to the point that M.S. ejaculated. (

k) M.S. did not consent to any of this touching of a sexual nature. (

l) The following day, Mr. Lynch punched M.S. several times without his consent and hit him in the testicles with a ring of keys. (

m) Mr. Lynch was in a position of authority in relation to M.S. when the sexual assault and the assaults occurred. conclusion [ 144 ] In

summary, taking into account the evidence as a whole, I find that the Crown has proven the following beyond a reasonable doubt: (

a) On August 7, 1988, Bernard Lynch touched M.S.’s penis for a sexual purpose without M.S.’s consent, while in a position of authority, thereby committing the offence of sexual assault. (

b) On August 8, 1988, Bernard Lynch assaulted M.S. by punching M.S. several times in the arm and by hitting him in the testicles with a ring of keys, without his consent and while in a position of authority, thereby committing an assault. [ 145 ] I find Bernard Lynch guilty of both counts in the indictment. J. P.T. BERGBUSCH