R. v. D.R., 2014 ONCJ 380

COURT FILE No.: 13-2440 Citation: R. v. D.R. , 2014 ONCJ 380 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — D.R. Before Justice S. R. Clark Charges: Sexual Assault (2x); Sexual Interference (2x); Invitation to Sexual Touching Judgment released on May 2, 2014 Ms. H. Gluzman………..………………..………………..……………………..…………..for the Crown Mr. J. McCulligh………………………...…..……..….……….….…..for the defendant D.R. CLARK J.: 1:0 INTRODUCTION [ 1 ] The defendant, a 63 year old individual, is charged with 2 counts of sexual assault, 2 counts of sexual interference, and 1 count of invitation to sexual touching.

The timeframe in question is from early 2011 until March 31, 2012. [ 2 ] The allegations relate to two young boys, L. and T., who were 10 and 12 years old, respectively, at the time. [ 3 ] The defendant resided with the boys and their grandmother (whom they referred to as “mom”) for approximately 3 years, between early 2010 and early 2013. [ 4 ] There was no alleged penetration or oral sex.

Any physical contact between the defendant and each boy was confined to touching their penis and buttocks. [ 5 ] The defendant is also alleged to have asked T. to “suck my dick.” [ 6 ] In the spring of 2011, the defendant was confronted by the grandmother and L. about this behaviour.

He denied it. [ 7 ] Thereafter, he continued to reside with them for almost 2 years until his arrest in February, 2013. [ 8 ] After L. disclosed to a teaching assistant at his school that he had been sexually assaulted by the defendant, both boys attended the Special Victims Unit of Peel Regional Police on February 25, 2013, and provided videotaped statements.

[ 9 ] L. provided a further video statement on July 22, 2013, adding additional details to his earlier disclosure, suggesting elements of “grooming”, by the defendant showing them pornography. [ 10 ] The defendant was arrested at the residence on February 25, 2013. [ 11 ] He has remained in custody since this date, notwithstanding his being granted a surety bail release. [ 12 ] He denies the allegations and puts the Crown to the strict proof thereof. 2:0 THE ISSUES [ 13 ] The main issues are as follows: 1.

How should the Court assess the credibility and reliability of child witnesses, including whether the complainants were coached, and whether the timing of disclosure affects the integrity of their evidence? 2. How should the similar act evidence be weighed in the analysis? 3. When applying the W.D. analysis, has the Crown proven the charges beyond a reasonable doubt? 3:0

SUMMARY OF THE EVIDENCE 3:1 The Crown 3:1.1 L.’s Video Statement, dated February 25, 2013 [ 14 ] He is presently 11 years of age. [ 15 ] On consent, his videotaped statements given to the police on February 25 and July 22, 2013, were admitted as part of his evidence pursuant to s.715.1 of the Criminal Code . [ 16 ] A

summary of his February 25, 2013 video statement is as follows: He was 10 years old at the time he gave the statement. He was in grade 5. He told the officer in the interview room that he was “kinda nervous”. He had spoken to one of the teacher’s assistants about the incidents. He believed it was 1 or 2 years prior to this when the defendant touched he and his brother in their “private areas”. Approximately 1 month after these acts occurred, he told his mom (who is actually his grandmother). His brother told her first. However, she did not believe him. This is when he told her what had happened to him as well.

They all had a “big talk”. He stated he couldn’t totally remember all of it. While he, his brother, his mom (grandmother) and the defendant discussed it, he was crying a lot because the defendant, whom he described as his “uncle”, kept on denying it. The defendant had been living with them for 2 or 3 years. He is the ex-husband of their mom’s sister. The first incident occurred when they were downstairs watching a movie on the couch. His brother and mom were also there. He had a blanket over him. The defendant put his arm under the blanket and touched him between the legs under his pyjamas.

He was not wearing underwear. The defendant then moved his arm away quickly and L. shoved him away. Nothing further happened on that occasion. They continued watching the movie and then went to bed. No one else saw what the defendant did to him at that time. The second incident occurred again while they were watching a movie. He and his brother share a room. They were lying on their beds. The defendant and their mom were also in the room. His mom and T. were on one bed. He and the defendant were on the other. It was approximately 9 p.m. He was wearing his pyjamas. The defendant did the same thing to him.

He shoved the defendant and then turned over in his bed. The defendant had said to him previously, “Don’t tell mom”. He did not tell anyone because he was scared. It was only after his brother told her about what happened to him when he too decided to say something. He believed that there were approximately

10 incidents between he and the defendant. This second incident involved the defendant putting his hand under the blanket between his legs but on top of his pants. He described that the defendant touched his penis. It did not last long because he shoved the defendant really quickly. Going back to the first incident, he described the defendant touched his testicles. He was unable to provide much detail about the subsequent incidents, just that they happened. He told the officer that the defendant did not touch any other private parts such as his anus.

He told his brother what had happened to him first, and his brother then disclosed that it had happened to him as well. His brother, T., is two years older. He explained that they didn’t like talking about it to each other. All of the incidents took place over a period of 1 or 2 months. After he sat down with his brother, mother and the defendant, the defendant never really talked to the boys again, nor did he ever touch them again. He does not recall specifically what his mom said to the defendant. He remembers that the defendant said that he was probably drunk and didn’t remember anything.

He did not believe that the defendant was ever drunk during any of these incidents other than an incident occurring on the couch, and in his bedroom. An incident also occurred in his mom’s room and in the kitchen. Incident number four, he recalls, took place in the kitchen. The defendant was getting his coffee. L. had his housecoat and pyjamas on. The defendant put his hand down his pyjamas and touched his penis. He pulled the defendant’s hand out and then ran downstairs. He did not recall details of the incident in his mom’s room. He stated the defendant never asked him to touch him.

He explained that the defendant would discipline he and his brother from time to time. He thought he was strict if things went wrong. If they spilled their milk, for example, he would yell at them. The defendant never put his hands on L. when disciplining him, however. 3:1.2 L.’s Statement dated July 22, 2013 [ 17 ] A

summary of his July 22, 2013 statement is as follows: He was re-interviewed on this date. By now, his brother had given his statement to the police on February 26, 2013, one day after L.’s first statement. He had also now spoken to someone at the Peel Children’s Centre and had also spoken more to his mom. He told the officer that when he gave his first statement he said something that wasn’t really true. Regarding the couch incident, the defendant actually put his hand on his penis, but he did not push the defendant away.

Regarding the incident that took place in his bedroom, he explained that he and his brother would take turns sleeping with mom at the bottom end of the bed. If his brother was sleeping with mom, he would sleep at the bottom of the defendant’s bed. On one such occasion the defendant reached under the blankets and kept touching his penis. L. explained he didn’t move because he was scared. The defendant pulled his foreskin up and down and rubbed his ball sac. He also rubbed his bum cheeks. The defendant grabbed his hand and put it on his penis and made him touch his balls and rub his butt cheek.

He explained, “Everything that he did to me, he made me do to him.” At one point his brother told him that the defendant touched his penis. He told his brother that the defendant touched his as well. He believed that this happened most weekends. When he and his brother finally told their mom he explained that he only told her the defendant touched their penises but didn’t tell her how or in what ways.

He recalls his mom (grandmother) saying she was scared and was worried she was going to get charged, however his biological mother (who had now been made aware of these incidents) told the grandmother that she would not. He believes these incidents started to occur approximately a month and a half after the defendant moved in. He described another incident where there was a porn website on his brother’s D.S. One evening they all decided to have pizza. Mom went to pick it up. While she was away the defendant brought he and his brother into his room and showed them a porn video involving adults.

They were in the room watching it for approximately 3 minutes. When mom arrived home, the defendant turned it off. 3:1.3 L.’s Trial Evidence [ 18 ] A

summary of his oral trial evidence is as follows: He adopted the contents of his video statements. They were both made exhibits in the trial. He admitted he was not entirely forthcoming in his first statement and explained it was because he was scared and embarrassed and this is why he initially stated that he shoved the defendant away, rather than facing the embarrassment of not stopping him. On cross-examination, he explained that he got along okay with the defendant, although they did not talk a lot with one another. He explained that the defendant yelled at he and his brother a lot, however.

Counsel suggested he did not tell the truth when he gave his first statement. He responded that he wasn’t lying, but just got confused. He acknowledged he could not remember the first time the defendant touched him, nor the last. He said he was not sure how long before the incidents occurred after the defendant had moved in. It could have been closer to a year. He explained that he did not tell his mom right away because he was scared of what the defendant might do, even though he acknowledged the defendant never threatened him. When asked why he did not yell out when it occurred, he stated he did not know.

Counsel suggested it was because nothing ever happened. He disagreed. The only time he remembered the

defendant saying anything to him about not telling his mom was when he was in bed and the defendant was sitting on the bedside. He provided a few more details about the incident in the kitchen. He explained he went there to get ice cream. This is when the defendant placed his hand on his penis. He also indicated that one incident took place while in his mom’s room. She had apparently gone downstairs to get some water for him. While she was gone the defendant touched him again. He acknowledged he did not mention this in either of his video statements.

Counsel put to him that he changed his evidence in his second video statement so it would be the same as his brother’s. He stated this was not true. He and his brother never talked about the incidents after they had each given their statement in February. Counsel suggested that it was the defendant who in fact found he and another boy watching porn and that the defendant took it away. He disagreed stating that the only time he saw porn was when the defendant showed he and his brother when his mom was making pizza.

Counsel also suggested that he and his brother wanted the defendant out of the house and by making these allegations against him this was the easiest way to do it. He disagreed. In re-examination, he was asked why he had not mentioned the incident that had taken place in his mom’s room. He stated there was no reason in particular, but he thought that he had mentioned it. 3:1.4 T.’s Video Statement, dated February 26, 2013 [ 19 ] He was 13 years of age when he testified at trial. He is presently in grade 7. He watched his video statement played in the trial.

He remembered saying all the things on the video and stated he told the truth, although he could not remember some of the details. [ 20 ] A

summary of his video statement, dated February 26, 2013, is as follows: It was his understanding that his brother told a teacher who in turn called the Children’s Aid and the police. It was his understanding that the defendant and his wife had split up. The defendant moved out and came to live with them. He believes the defendant has two children of his own, both girls. He explained the incidents occurred approximately 2 years ago. He and his brother would alternate sleeping with their mom and the defendant on weekends. The defendant would touch their bums.

He explained the defendant was big and strong and scary who would sometimes grab his wrists. The defendant told him that what he was doing was a secret and that he could not tell. He did not tell anyone because he was scared. He described that the defendant touched his “wiener” and “bum hole”. The first time occurred when he was half asleep. The defendant would rub his bum cheeks. He turned to the other side in his bed. The defendant only touched his anus for a second. He explained he tried to go to sleep. This incident occurred in the defendant’s bed.

He believes there were 3 incidents which occurred in the defendant’s bed. He explained on one occasion the defendant asked him to “lick his weenie.” This occurred while they were on the edge of the defendant’s bed. He explained he slapped the defendant. More specifically, he recalls the defendant asking him to “suck my dick.” The defendant only had his pants on but no shirt. In addition, there was a situation where he was playing video games in the basement. The defendant pulled down his own pants in front of his brother. He saw this happen. This caused him to run out of the room.

He also described that he saw the defendant touch himself on one occasion when he went to bed. On another occasion he described the defendant showed he and his brother an inappropriate video involving adults. He recalls seeing a “weenie” and breasts. This occurred in the defendant’s room. He explained he did not want to tell his mom what happened because the defendant would hurt him and get mad because he was just too strong. He explained that on one occasion he and his brother were fighting. The defendant broke it up and pushed his head to the ground.

On occasion the defendant would wake him up if he was late for school and get him out of bed. He would throw him off the bed. This hurt him. He explained that he and his brother never talked about telling on the defendant because it was a secret. He wanted to tell but he knew how strong the defendant was. He explained his mom didn’t believe him at first until he and his brother both told her what the defendant had done. She asked the defendant if it was true. The defendant responded that it was like one of the biggest mistakes ever in his life and said he got rid of the video a long time ago.

He believes the defendant admitted to the inappropriate video and the touching. While they all had this family discussion in the living room the defendant and their mom had been talking privately. In

summary, he recalls only 3 incidents. The defendant rubbed his bum cheeks, touched his penis, rubbed his back, had him watch porn and asked him to suck his penis. After they had the family talk, the defendant never did anything further. The defendant continued to live with them. Approximately 6 months later he seemed nice. T. believes it’s because the defendant knew it was a bad mistake. He explained the defendant was helpful and would help his mom by going grocery shopping and driving he and his brother to school because his mom had hurt her back.

He stated the defendant was not mad at him for telling, but they actually ignored one another for a while. 3:1.5 T.’s Trial Evidence [ 21 ] He adopted the contents of his video statement. He recalled things that he said in his statement and confirmed he told the truth, although he indicated he could not remember “some stuff”. [ 22 ] A

summary of his cross-examination is as follows: On cross-examination, he described his relationship with the defendant as ordinary with an “uncle”. At first, he was scared because the defendant was a new face in their house. He later explained he was not scared but just wondering because he didn’t really know him. He was uncertain about when he began to be touched inappropriately. He acknowledged that he had indicated that it was anywhere between a couple of months up to one half year after the defendant moved in. He described the defendant as a bit of a disciplinarian, although not at first.

T. acknowledged he got angry from time to time. On one occasion he hit the wall and pushed his mom a couple of times. The defendant would hit him occasionally. His mom would have to tell the defendant to stop. She and the defendant would argue about this sometimes. He acknowledged that he himself had a bad temper and that he would often get mad once or twice a week. When asked if he and the defendant ever had a “showdown” over his temper, he explained the defendant tried to stop him from acting out. On one occasion the defendant punched him in the head near his ear because he would not wake up and get out of bed.

He acknowledged that he

argued with the defendant at times and would shout back at him. He also acknowledged that he swore at the defendant from time to time, but the defendant swore at him as well. The first incident took place when the defendant asked him to suck his dick. This occurred during the third occasion when he slept in the defendant’s room. He then clarified that the first incident actually took place within 2 to 6 months of the defendant moving in. He was in the defendant’s bedroom at which time the defendant touched his butt. He let it happen for a while and then tried to tell the defendant to stop.

He also tried to go to sleep. The defendant was rubbing his back first and then his butt. T. explained that he was thinking to himself, “What the hell is this guy doing?” The second incident also occurred when he slept in the defendant’s bedroom when the defendant touched his dick. He tried to move to the side of the bed to get away from the defendant and tried to sleep. He acknowledged that at this time in his life he was scared of such things as the dark and spiders. He described himself as a “big baby” and didn’t want to sleep in his own room.

When asked why he didn’t tell anyone, he explained he was kind of scared of the defendant and knew he was strong. He explained further that this may not have been a good reason not to tell but it’s how it went down. When asked if his memory was better now than at the time of the incidents, he described that it was. He explained he remembers more stuff now. He stated the defendant would intrude every time his mom tried to discipline he and his brother. Although he would swear at the defendant from time to time, he indicated that most of the swearing came from him, not me. He restated the sequence of the events.

The first incident involved the defendant touching his butt. The second incident involved the defendant touching his dick approximately 1 or 2 weeks later. The third incident occurred approximately 2 weeks after. The defendant did not touch him but asked him to suck his dick. This is when he slapped the defendant. He explained why he was in the defendant’s bedroom at all. He did not want to be alone and his brother was already sleeping in his mom’s room. He told the defendant to stop and he did. He explained again that he did not tell his mom the next day what happened.

He did not think that she would kick the defendant out of the house. Furthermore, he thought the defendant would know that it was he who told on him. He was afraid the defendant would get mad. He explained further that he tried to go back to sleep but the defendant “jizzed” on him, meaning masturbated. He felt the blankets on the bed going up and down. He could then feel this liquid on his back. He described that he thought the defendant “pissed” on him. The defendant wiped it with a tissue. He explained that he didn’t know at the time what had happened, but now that he is older he knows what it is.

He described when he slapped the defendant that it was only a light hit. He was asked why he never told the police about this in his statement. He stated it was because he was embarrassed and that he was like a baby then. He explained further that as can be seen in his video statement by the colour of his face that he could barely talk because this isn’t what kids talk about. It was suggested he was making this up. He disagreed stating he said he would tell the exact truth and this is what he was asked to do. He also explained that he remembers more now.

He is not hiding it in his memory because he is more confident now. He stated he can never forget this moment now. When asked how it all ended he explained that he had now decided that he was able to sleep in his own room although he was still scared of the dark. He did not tell his mom because he was still scared that the defendant would do something to him in general. He explained that when the defendant showed he and his brother the porn video, after watching it for about 10 seconds he tried to get his brother out of the room. This was the only point where they talked with one another about all the touching.

He restated the details of the defendant pulling out his penis and exposing himself to his brother. T. was playing a video game. As he looked back he saw the defendant unzip his pants. He was not wearing underwear. He pulled out his penis and wiggled it in front of his brother. The defendant then went upstairs. He asked his brother what happened and he responded that he was not allowed to talk about it.

Counsel challenged him stating that none of this was true, but what was true is that he never liked the defendant from the beginning and the easiest way to get him out of the house was to say these incidents happened. He disagreed. 3:1.6 S.P. She is a teaching assistant at the complainants’ school. She knew both boys. She first met L. in grade one. L. approached her at recess one day and said he wanted to talk. She described his demeanour as having his head down. She asked him if he was okay. He responded he was. She noted this was not ordinary behaviour for him to be asking her if he could speak.

She spoke to him inside the school right after recess. He was with one of his other friends. She had a sense that he was not being fully forthcoming and told the friend to leave. At this time he told her about how he had been at his friend’s house on the weekend and was crying. His friend’s mother gave him a “kid’s helpline” phone number and encouraged him to talk to someone. It was now a Monday morning. T. told her that his uncle Dan who had been living with him touched him. He pointed at his penis and said it in a soft voice.

She then called the school principal and subsequently called the Children’s Aid Society. She was not cross-examined except to be asked how long her conversation was with L. She explained it was only a few minutes. 3:1.7 C.C. She is the grandmother of the complainants, whom they refer to as “mom”. She has had custody of them. Their biological mother, her daughter, had been going through her own personal issues relating to drug problems and could not handle the situation. Accordingly, Mrs. C.C. and her husband agreed to raise the children. T. came to them when he was approximately 1½ years old.

L. came directly to them after birth. Her husband passed away when the boys were 3½ and 2. She continued to raise them on her own. She did not tell them for some time about who their real mother was. They started to hear things at school from other children, however. She first met the defendant, who was married to her sister, approximately 12 or 13 years ago. The defendant split up with her. He was unable to work because he had undergone back surgery and was now on a pension. He moved in on or around February, 2010. She explained that he was quite handy. She was trying to keep her own house going.

This arrangement helped them both out. He paid her rent for his room. She explained that the relationship between the defendant and the boys was good initially. He took them on a fishing trip. He did not have a role in parenting or disciplining the children, however. However, she acknowledged that T. would get angry with her

from time to time, particularly if she had to tell him he was grounded. The defendant was present on occasion when she was disciplining T. She recalls one time when the defendant stepped in and grabbed T.’s arms because he was getting aggressive. The defendant pulled T. to the ground. She had to tell him to let the boy go and not touch him. Otherwise she stated the defendant did not spend much time with the children. He would not go out of the house very much unless it was to shop, or to go to his trailer on weekends, or do yard work.

The boys would often take turns sleeping in her bed, particularly if they had bad dreams, did not feel well, were scared, or woke up in the middle of the night. At no time, however, were both boys sleeping in her bed at the same time with her, because there was simply not enough room. They would usually sleep in her bed on weekends. There was no set pattern. L. slept with her more frequently. He never raised any concerns with her about the defendant. She recalled him coming into her room to wake her up on one occasion.

He had been in the defendant’s room but told her that he just wanted to go back to his own bed which was more comfortable. L. at some point finally disclosed to her that the defendant had touched his penis during a sleepover. She asked him if he was sure about this. He said he was. She then took L. upstairs and confronted the defendant telling him that they had to talk. The defendant said words to the effect, “What have I done now?” She told him she was not going to give him any hints but wanted him to come and speak to the children. This is when L. “poured his heart out.” He was crying.

The defendant sat there and never said anything else. L. said words to the effect, “I’m gonna keep talking until you admit it”. The defendant responded with words to the effect, “I must have been drunk.” T. was there as well. He did not say much. He was not crying but appeared to be angry. He was also trying to get the defendant to admit that he had done something as well. She asked T. if what L. had just told her was true. He indicated it was, although he did not provide details. She explained that L. did not cry very often, although he was the more sensitive boy than T.

She explained that it was actually more than crying. He was quite hysterical. Her reaction to all this is that she was angry and scared herself. She was trying to calm L. down and didn’t know what to do next. She sat with L. for approximately 1 hour. L. did not really elaborate on any of the details of the various incidents, although he talked about a porn movie called, “Bad Bad Girls”. She explained that the boys did not go into much detail at that time, but did disclose more the next day. L. told her that the defendant asked him to touch his penis and that the defendant was “jerking off”.

T. did not provide much detail, just that the defendant had touched his penis. She did not call the police right away, or at all. She spoke to the defendant but he did not want to talk about it. He did not admit anything but told her words to the effect, “I guess I’m going to be accused of something I didn’t do.” Although she allowed him to continue living in the house, she told him he was not allowed to be around the boys anymore and not to touch them. She never did see any evidence of pornography, although she explained she found a Nintendo DS game which contained some.

She discovered this even before she had the conversation with L. who was crying hysterically. She was shocked and took it upstairs and showed the defendant what she had found. He responded that they, meaning the children, must have had some access to it on the internet. She explained why she allowed the defendant to continue living there. She was afraid that if she called the police, the Children’s Aid Society would intervene and take the children away from her, in which case her own daughter would never have a chance to get them back.

After this, she explained that she felt nervous and uncomfortable about having the defendant around, but did not know how to deal with the situation. On cross-examination, she agreed that T. had quite a temper and that he had hit her before and pushed her over a coffee table. Most of his anger was expressed verbally, however. He would swear at her and use foul language from time to time. She explained that T.’s temper is not as bad now. She explained that the relationship between the boys and the defendant was not a real relationship. They did not spend a lot of time with one another.

It was her impression that the boys were not very proud of him. L. told her that the defendant had touched him during sleepovers. She believed that he told her this occurred 4 or 5 times, but she could not recall exactly. When she confronted the defendant in the presence of the two boys, they both spoke about what had happened. L. kept saying to the defendant, “Admit it. Admit it.” T. also joined in. The defendant never said anything, however. He just put his head down. The next day L. provided her with further disclosure. He told her that the defendant had touched his penis and wanted him to jerk him off.

She acknowledged that she never included this in her statement to the police. She didn’t know she had to tell everything. It was all related to her asking the children if the defendant ever touched them. She explained that she was fearful that she was going to be charged for not reporting these incidents to the police. She was also fearful that the Children’s Aid Society would take the children away from her. She was concerned because her daughter, their mother, seemed to be doing so much better and she wanted to preserve her chances of getting the children back.

She also felt that she herself was irresponsible and might be criticized for not being able to look after the children properly. This is why she allowed the defendant to continue living in her house for another year until he was arrested. 3:2 The Defence 3:2.1 D.R. He is presently 63 years of age. He is not working. He has been on a permanent disability as a result of injuries sustained in a car accident in 1986. He underwent a spinal fusion in his lower back. This has compromised his “manly ability”. This was a contributing factor to the breakdown of his first marriage. It has also affected his current marriage.

He has been estranged from his current partner for some time. As a result of his disability they never consummated their marriage. He has a criminal record for impaired driving causing death. He served a 3 year jail sentence and was released on or around January 28, 2010. Previously he worked for C[…] company for approximately 30 years as an industrial millwright. Upon his release from custody he moved in for what he thought was going to be a short period of time with C.C., his sister-in-law. After further discussions, a decision was made to have him live there full-time. Mrs.

C.C.’s husband had passed away 6 or 7 years previously. The defendant was quite handy and was able to help repair things around the house. It was also determined that it would be helpful to have a male figure there to assist her in raising her two grandsons, L. and T. (the complainants). He moved in full-time in mid-April, 2010. He had an arrangement to pay rent. Mrs. C.C.’s home was described as a 4- level back-split. In the basement there was a games room and laundry room. The family room where the boys would watch television was one floor up.

On the third or main level were the living room, dining room and kitchen. Three bedrooms and one bathroom were on the 4th level. He resided there for almost 3 years until his arrest in February, 2013. The boys’ biological mother was Mrs. C.C.’s own daughter. Unfortunately, she had trouble with drugs and was unable to look after them. He described that his relationship with the boys was “neutral”. He wasn’t to play a role other than being a male figure for them. He was not assigned any specific tasks.

He was not asked to be the disciplinarian although he did step in when needed because the sibling rivalry was rampant. He described that the boys never really talked to one another. There was often loud yelling or fighting between them. It seemed that this occurred from the time they got out of bed in the morning until they went to bed at night. He found this very distressing. He tried to intervene and calm them down, particularly when they were fighting with one another. He would pull them apart and explain

that this is no way to behave. However, this was to no avail. They did not pay much attention to him. He believed that Mrs. C.C. appreciated it when he did, particularly when T. was being physically abusive to her. He described T. as a big boy who was always very aggressive, particularly against his younger brother, L. After the first year, T. had grown quite big and was physically violent toward Mrs. C.C. (C.C.) and his brother. He described L. as “standoffish”. He believed L. was not sure of him. He knew L. did not like him interfering with the family.

He tried to dissuade L. from fighting with his brother, however L. would respond by saying words to the effect, “It’s not your house and we know how to get rid of you.” He believes L. said this to him approximately 3 or 4 months after he had been living there. Over time his relationship with the boys basically fell off. He was disillusioned and quite appalled with the way they were growing up. Any time he tried to step in he got abuse, including filthy language. C.C. never really disciplined them. They effectively had “the run of the house.” They demanded and she gave.

He believed that her ability to discipline them was just not in her. Rather, she just wanted to make them happy. He felt the boys were “spoiled rotten”. The boys talked C.C. into buying them an X-Box as well as mature video games (restricted to 18 years old and older). They would connive and coerce her into buying them. Their demeanour was getting progressively more aggressive and anxious. In or around the winter months of 2010 the situation of sleepovers came up. The boys were used to sleeping in C.C.’s room either together or separately.

On one particular evening, at approximately 10:30, the boys asked if they could sleep in C.C.’s room. She was trying to tell them that they were getting too big to be sleeping in her room together. It was decided that L. would sleep with her. T. objected because he did not want to be alone in his own room. It was suggested that one of them would then sleep with “Uncle D.R.”, (as he was referred to). The defendant stated that he was a little apprehensive about this because T. had a habit of wetting the bed, although he had not done so for a while.

Reluctantly, he agreed to allow T. to sleep over just to quiet him down. He described that his relationship with T. was not close. They tolerated one another. He didn’t really like T. and T. didn’t really like him, but they did get along. He explained that if T. needed help with anything he would do so, but would not go out of his way. He categorically denied that he found T. to be sexually attractive either, stating, “Not in the least”. At no time did he ever consider T. to be an appropriate sexual partner for him. He explained, “I have never in my entire life had any homophobic tendencies”.

On each occasion when either of the boys slept in his room, they would tuck themselves into bed on the window side. He would shut off his television and get into bed on the left side. Because of his back injuries, he always sleeps on his left side which he had been doing for years. His back would be facing the boys when they were in there. He testified that he never touched either of them, except perhaps when he would get up in the middle of the night to use the washroom. At times they would be “stuck” right up against his back with either an arm or a leg draped over him.

When he returned from the bathroom, he would merely carefully push them back over on to their side of the bed and cover them up again. The first sleepover with T. occurred without incident. Thereafter, the boys would take turns. Nothing sexual ever happened, however. He did not consider L. to be sexually attractive either. He responded, “Far from it”. Other than pushing the boys over in the middle of the night he never touched L. in any manner. If there was a sleepover, the routine was that he would wake up the next morning at approximately 5:30 or 5:45 a.m.

He would go downstairs to put the coffee on and then go out to the garage to have his morning cigarette. He would then go back up to his bedroom with his coffee and watch television, using wireless headphones so he would not disturb anyone. T., at some point, had an unfortunate bedwetting incident. He used this opportunity to say that this was enough and that there would be no more sleepovers in his room. They continued, however, where the boys would alternate sleeping in C.C.’s room. He did not recall any times when he, C.C., and the boys would all sit down in the family room to watch a movie.

He testified that the four of them never sat together on a couch, although on occasion, T. would lay on the long couch with his head on the defendant’s lap, while L. would cuddle up to C.C. on the loveseat. If T. sat with him, he would wrap himself in his blanket like a cocoon. He explained that he never touched T. in any sexual way.

In fact he explained that it would be impossible for anyone to perform that kind of activity by sneaking a hand under the blanket into T.’s pajamas, given the distance T. was away from him, and the fact that C.C. would have been sitting there within two feet of him in full view of anything that would ever happen. He testified that he never touched T. or L. in any sexual way at any time when they were in the living room or anywhere else in the home. There was no incident in the kitchen with L.

The only thing that transpired there is that L. was complaining that he had a severe rash on his bottom after coming home from a one-week camp outing with the Sea Cadets in Streetsville. C.C. asked the defendant to look at it. She asked L. to lower his trousers. He recalls telling C.C. that it might help if L. had a bath more than once every 6 or 7 weeks. C.C. apparently ultimately took L. to a walk-in clinic. He believes that an antibiotic cream was prescribed. He also denied that he ever touched L. sexually in the kitchen when L. was going to get some ice cream.

He recalls the day of the “confrontation” in the spring of 2011. He had been in the garage. C.C. called him in and said that the boys had told her he had been touching them in an inappropriate way. He adamantly denied it. He asked her words to the effect, “What am I being accused of now?” He explained that he was used to the boys running to C.C. and telling her lies about him, for example that he was yelling at them and swearing at them. He recalls L. saying a couple of times, “Yes you did”. He does not recall T. saying anything.

He does not recall exactly what he said at this point because he was too embarrassed and shocked by the whole thing. He explained that he went back outside to the garage to mull it over. He subsequently told C.C. that with an accusation like this, he was considering that he would have to move out. After he finished his cigarette in the garage, he went back to his room and closed the door. He explained, “A thousand things were running through my head.” At this point, C.C. and L. came to his door. C.C. said L. wanted to say something to him.

At that point, however, L. just stared at the floor, pressed up against C.C., and never said anything. She told him he did not have to leave the house. He decided he would stay because he could not afford to go anywhere else at that time. He had much of his personal property there and was of limited funds. In any event, C.C. was not worried about him staying there, and in fact wanted him to stay on.

The subject was never discussed again. He did not necessarily think this was unusual that C.C. did not speak to him about it again. He took it to mean that she believed he was telling the truth when he made the denial and that this was the end of the matter. In his view, T. was not an honest boy. He would make up a lot of stories and anything he did wrong he would deny. Any time he got in trouble, he would merely say that it was the defendant’s fault for making him do something. In other words, it was always everybody else’s fault but his. He described that L. was not a truthful or honest boy either.

L. was falling into line with T.’s behaviour. He explained he was still trying his best to have the boys like him. He would do barbecues for them, cook special meals, and on weekends get take-out orders for dinner. He did this out of the “goodness of his heart”, in an effort to try to fit in and take some of the onus off C.C.. A day or two prior to the “confrontation”, he explained that the boys had been exposed to some pornography in the house. While they were at school during the week, part of C.C.’s routine would be to go around and pick up their DSI games. She would plug them in to recharge them.

She viewed some pornography on one of T.’s games. He and C.C. surmised that it must have come from one of their friends who had brought a laptop over to their house approximately one month earlier. Otherwise he never observed the boys watching pornography. He described another incident where he had purchased a men’s magazine which also had a CD with it. It sat in his cupboard for a few weeks. On a Saturday, when C.C. went to the liquor store, the boys were downstairs in the games room playing with the computer system. He decided to view the CD to see if it was even worthwhile.

While it was on the boys came up looking for C.C.. They came into his bedroom and were in the doorway in full view of the television. At this time he heard C.C.’s van in the driveway. He shut the system off and told the boys they should not tell “mom” that they saw this. He stated that this was an unfortunate incident, however he never invited them into his room at any time. He believed the boys had only seen the suggestive material for no more than 10 seconds. It was never mentioned nor talked about after this. After the “confrontation” in 2011, he continued to remain living there for 2 more years.

His relationship with the boys got exceedingly worse. T. would get into screaming rages which were very violent. He would demand that C.C. get the internet in the house. He would literally attack her. On one occasion he had to pin T. down on the floor to stop him. Things got worse after that. Once internet was installed in the house, the boys then demanded that C.C. buy them other games including mature audience videos. Things escalated to the point where T. wanted a new computer because the present one was not fast enough to play his games. He also wanted a high definition television screen.

Although C.C. tried to tell him that she could not afford it, he would go into a rage and completely lose control of himself, screaming, swearing and smashing things in the house including doors, the dining room cabinet and would kick holes in the walls in the dining room. On one occasion he had to chase T. around the house until he grabbed hold of him and pinned him down on the floor to tie him up so he could not attack him. He recalls having to do this a couple of times, just holding T. until he calmed down. On occasion he observed T. physically attacking C.C..

In one instance he tried kicking her down the stairs. He also picked up a table from the breakfast area and was going to throw it at her. On another morning he took off a running shoe and hit C.C. in the face twice. He had to come downstairs to grab and subdue T. He advised C.C. that she should call the police, and if she did not, he would. The police did attend on one occasion although no charges were laid. As a result of this, his relationship with T. did not improve. He believed that each day T. found joy and pleasure trying annoy him. He asked T. why he acted and behaved like this.

T. told him words to the effect, “I enjoy pissing you off.” His relationship with L. developed in the same manner. He explained that L. was not vicious or violent, however, just verbally abusive. He described his relationship with C.C. as being “pretty much the same.” They just tolerated the boys being that way. On several occasions he told her that things should not be happening like this and that they needed to be punished somehow. He was trying to convince her that when the boys used filthy language, or exhibited bad behaviour she should take the power cords off their computer and X-Box system.

However, when this was done, he described it was “like World War III” in the house. The boys were physically attacking C.C. with the cords and would continue to do so until she returned their computers. He believed that the boys hated him because he suggested C.C. take these things away from them. At one point, the boys told him, “We hate you, because you tell mom to take things away from us.” This occurred in the beginning of 2012. From this point on, it was not particularly pleasant to be in the house.

He was comfortable, however, because he knew he had to accept that this was the way it was going to be, and that the children were going to behave this way. He just had to accept this as the way the house ran. He applied for Canada Pension Plan in hopes that his financial situation would improve and he would be able to find another place to live. He wanted to make these plans because he became disillusioned, given all the things he was doing for the boys. He told C.C. he could not justify doing any more things for them. In the latter part of 2012, C.C. was suffering serious back problems.

For the last 6 months he lived there, she was confined to the living room couch. She refused to get any medical assistance, worried that there would be no one to look after the boys if she ended up in the hospital. He was now required to do the shopping, as well as driving the boys back and forth to school daily. Other than this, he spent very little time alone with them. He explained that they were “just glued” to the internet. As soon as they got out of bed in the morning, they would play with it, and would continue right after school until bedtime.

Up to the time of his arrest on February 25, 2013, he spent very little time with them. They stayed in their games room. He reacted very little with them when they came home from school. Occasionally he would take them to a Mr. Sub shop on a Friday or Saturday night. When the boys told him, “We hate you,” he could tell they meant it and were not just saying it because they were angry. At no time did he have the impression that T. or L. were afraid of him. Both boys did not hesitate to swear or defy him, or tell tales on him. On the day of the arrest, he was in the kitchen preparing a stew.

C.C. told him she had to go to the school because L. had said something

to the teacher and the Children’s Aid Society was now involved. He was quite surprised and “flabbergasted”. He restated that he never laid a hand on either boy other than subduing T. when he had to. At no time did he ever ask either of them to perform felatio, or as they put it, “suck my dick.” He never spoke to the boys this way. However, he recalls one morning where he heard these words said to C.C.. L. was being verbally abusive to her. He ended his comments with the words, “Suck the dick”. Finally, when asked if he ever touched either of the boys sexually, he responded, “No. No way. I’m not built that way.

I do not have those kinds of feelings. Never at any point did it cross my mind to do anything like that. It’s bizarre to even consider that.” On cross-examination, he was asked several questions about his role while living with C.C. and the boys. He restated that he had no real role and was not in charge of discipline. Over time, the boys’ language got exponentially worse. When he heard them use foul language he would intervene and tell them to watch their “dirty mouths” and not to talk to their mother like that. They would heap abuse on him, however.

After the first year of living there, their language escalated. Use of the word “bitch” then expanded to the “f” word, and by the third year he described that they had a full repertoire. He had given up trying to do anything to change their behaviour by this time, as it seemed to be accepted by C.C.. This was almost a daily routine. He found himself having to intervene once every few weeks in the early stages. Later on, he would try to avoid it by going to work in the garage or going up to his room. Every now and then when it got out of hand, however, he felt the need to do something about it.

The boys did have some quiet periods from time to time. He continued to try and make it easier for everyone to live together. He would often take the boys for bike rides, fishing, to Square 1 mall and to Playdium. He tried many things to make them happy even though he really didn’t really like them. He was also trying to change his own behaviour to make it easier for everyone. Over the time he lived there, he might have sat on the couch in the family room 4 or 5 times in total to watch movies.

Regarding the sleepovers, when C.C. explained to the boys that they were too big now and there wasn’t enough room for both of them, he reluctantly said that he would allow T. to sleep in his room even though he knew T. had a habit of wetting the bed. He tried to accommodate the situation because it seemed to be the right thing to do at the time. He did not consider it to be inappropriate. He disagreed with the Crown’s suggestion that he was the one who invited the boys to sleep over in his room. Just before he was “confronted” by C.C. and L. in 2011, he recalls that she found pornography on the boy’s DSI.

Two days later, she came to him and said she needed to talk. She was not agitated or excited at the time but just provided the information that the boys said he had sexually assaulted them. She and L. were sitting on the couch in the living room. He was leaning on the back of a chair in the dining room. He believed T. was sitting in another room just around the corner, but out of sight. He denied the allegations because they were not true. He could not recall the specific words used by C.C., but was to the effect that the boys told her he had been sexually touching them.

He was in shock and was bewildered because nothing like this had ever happened. He didn’t ask her any questions, however. He wasn’t concerned about where this information was coming from at the time. The exchange took place only over approximately 2 or 3 minutes, not one half hour. After this he went to the garage to have a cigarette and to ponder how this was going to potentially affect his life and future. He then went upstairs to his room. C.C. and L. came there. She told him L. had something to say, however he just stood there but said nothing.

C.C. then smiled and said that it would not be necessary for him to leave the house after all. He dismissed the whole situation once C.C. said this, thinking that this was the end of it. He took what was said seriously but didn’t react or “go crazy”. He did not recall anything unusual about L.’s demeanour at the time. He remained snuggled up beside C.C., as was usual for him.

When C.C. confronted him he did not say, “What have I done now”, but it was more, “What am I being accused of now?” He explained he was used to the boys “telling” on him, for example, that he would always yell and swear at them, which he continued to deny. He did not agree with the Crown’s characterization that L. “poured his heart out” and was hysterical saying words to the effect, “Admit it. Admit it.” He did not recall L. doing this, but that he just let C.C. do the talking.

He also disagreed with the Crown’s suggestion that he merely put his head down and said words to the effect, “I guess I must have been drunk.” He explained that his daily alcohol consumption at the time was approximately 2 to 3 beers, particularly when it was hot in the summer. He would not consume any more because he was usually busy working around the house. He did recall L. saying words to the effect, “Yes you did” once or twice, however he was not crying or hysterical at the time, but merely a little agitated.

He did not recall ever saying words to the effect, “I’m being accused of something I didn’t do.” He was asked questions about viewing the CD which came with the men’s magazine he had purchased. He disagreed that the name of it was “Bad Bad Girls”, and believed that it was titled “Young Titties”. He was looking at it in his bedroom. The boys came up from the games room. He did not expect them to do so. They would seldom come upstairs other than to use the bathroom. He knew it was inappropriate for them to see it, but he stated it was not a “major” problem.

Furthermore, they only looked at it for a fleeting 2 to 3 seconds. It was not an explicit CD, but merely a series of pictures of nude women in various states of undress, but not couples together. He acknowledged he told the boys not to “tell mom” and explained that there was no malicious intent on his part. It didn’t warrant making this a big issue. This incident took place before the “confrontation”. He restated that T. never said anything in his or C.C.’s presence about being touched sexually. He acknowledged that he never spoke to C.C. about this incident further.

He disagreed that she ever told him words to the effect, “Don’t go near the boys again or go downstairs”. He responded, “This is 100% untrue”. After the “confrontation” the boys’ language and attitudes did not really change. He continued to take them on outings to Playdium and on several bike rides, however, but did not take on any type of parenting role. They just carried on like normal. He explained he just dismissed the whole incident after it was put to rest. He was not particularly worried about what might happen next.

The Crown then put to him various questions relating to his testimony given on March 26, 2013. He was asked to explain what he meant by his “manly ability” being compromised. He explained that he has erectile dysfunction. Since he was injured in the car accident in 1986, sex was not a part of his make-up. He was unable to “perform”. He never sought medical attention or treatment for this however. He explained that he still had interest and had a sex drive, because he could still appreciate a beautiful woman, but he knew he could not

perform sex. Buying a men’s magazine was not something he would usually do. It was a spur of the moment decision. He bought it at a convenience store just around the corner from the residence. He agreed with the Crown’s suggestion that he was surprised to hear T. testify that he saw him buy the magazine there. He indicated, however, that T. was never with him when this happened.

He disagreed with the Crown’s suggestion that his efforts at “parenting”, including knowing about the boys’ school curriculum, and helping them with homework was inconsistent with the evidence from the boys that there was always constant abuse and that they barely tolerated him. He explained that he was merely trying to be a friend and an uncle and tried to help them when he could. He was still trying his best to “fit in” with the family unit. After the confrontation, he did not leave the residence because he had no other place to go.

He realized he had to merely accept that he was still going to live in what some of his other family members described as “the crazy house”. He also restated that within the first 6 months of residing there, L. told him “This is not your house and we know how to get rid of you”. This was said to him when he intervened to break up one of the spats between the boys. At the time, he wondered where this was coming from because it was an unusual thing for a child to say. When he heard it, he realized that the boys resented him being there. The Crown asked him questions about his video statement to the police.

The investigating officer asked him if he had any remorse, to which he apparently replied, “I do”. He explained, however, that his senses were dulled by his medication. What he meant by this is that he was not losing his temper or getting excited about the allegations. He also clarified that he did not have remorse for something he did not do. He disagreed with the Crown’s suggestion that he was admitting to the officer that he did something to the boys.

When asked about his having to touch or have physical contact with the boys during the sleepovers, he explained that this was only when they would have their arms or legs draped over him. When he got up to go to the washroom he would reposition them. He did not particularly like having any physical contact against his back. He was not used to sleeping with anyone. Although he was physically uncomfortable having the boys sleep with him, he did not feel any moral compunction.

The Crown challenged him in that he never mentioned that when sitting on the couch in the family room that T. would not lay his head directly on his lap, but put his head on a cushion. The defendant explained that he did not think it was necessary to mention this. T. always had his head on a cushion any time he was in this position. He also explained that it would have been impossible to touch anyone under their pyjamas or on the couch, since T. would wrap himself up in the blanket like a cocoon. The Crown asked him if he knew that T. never even alleged that he was touched while on the couch.

The defendant responded that he thought T. did state this. He restated that in his life has he never had an inclination or thoughts to touch these boys, or to have these thoughts toward any child. The Crown challenged him about some of the aggressive assaultive behaviour apparently exhibited by T. toward C.C.. He recalled once, while watching television in his room, he could hear C.C. saying, “Ow.” She told him that T. hit her by throwing a shoe at her. He ran downstairs to intervene, although he did not see it happen.

On another occasion, C.C. pulled the power cord out of the socket to punish the boys, and they attacked her by hitting her lightly on the arm with one of the cords. It caused him to grab T. and put him on the floor. He stated that he had exact recollection of L. telling C.C., “Suck the dick”. He cannot recall the exact date, but it was during the third year that he was at the residence. At the time he heard L. say this, he also him say, “I hate you. You’re the worst mother in the world.” This was followed by, “Suck the dick”. He had not heard this phrase used by either of the boys before.

He told L., “Watch your language.” L. told him, “Fuck yourself.” He disagreed with the Crown’s suggestion that he was the one who said, “Suck my dick”, and not L. He responded, “You’re 100% wrong.” The Crown then directly put to him directly the circumstances of each allegation made by L. He denied each of them. He also denied ever touching L.’s penis while C.C. went out of her bedroom to get water for him. He explained that C.C. never allowed any drinks in any of the bedrooms. The Crown challenged him further by raising the particulars of each of the three alleged incidents with T.

He denied that he ever touched T.’s penis, and never ejaculated on T.’s back nor wiped himself with a tissue or asked T. to suck his dick. He responded, “That is absurd.” 3:3 Reply/Rebuttal Evidence by the Crown 3:3.1 C.C. She was recalled to answer five specific questions. She was first asked if T. would always lie with his head down on the defendant’s lap with his head on a cushion while they were watching movies. She indicated, no. When asked if T. ever attacked her with a power cord after she pulled it out of the computer in an attempt to punish T., she emphatically stated, no.

She never overheard L. or T. state that they hated the defendant, although she indicated she knew they didn’t like him very much. Next, when asked if the defendant ever urged her to call the police after an incident with T. she could not recall this initially. She then stated the police did come to talk to T. about some broken glass in the dining room cabinet. T. was angry and pulled a chair, at which

time his elbow went into the cabinet. She recalled that no charged were laid against him, however. Finally, when asked if she had ever argued with L. and he told her, “Suck the dick”, she emphatically stated, “No way”. When briefly cross-examined further by defence counsel, she did not recall T. ever lying in the defendant’s lap although she recalled him lying with his head on a cushion on the couch from time to time. She did not recall an incident where she took the power cords away from the boys’ computer or that T. ever hit her on the arm with a cord.

When asked if T. had ever hit her in the face with a sneaker (shoe) she stated, “No way would he do this”. She confirmed that she never heard L. say to her, “Suck the dick”. She acknowledged, however, that T. called her a “fucking bitch” on one occasion. She described that L., however, was a different type.

Nonetheless, she acknowledged that he did say to her, “Fuck you” but not other stuff. 4:0 THE POSITIONS OF THE PARTIES 4:1 The Crown [ 23 ] The Crown submits that on the totality of the evidence, when applying the W.D . analysis, the essential elements of all 5 charges have been proven beyond a reasonable doubt. [ 24 ] Regarding the third branch of the W.D. test, the Court should accept the evidence of all of the various Crown witnesses. [ 25 ] The Court should be guided by the following principles when assessing the evidence of the complainants: 1.

The case law requires the Court to consider that the evidence of child witnesses should be given a common sense approach and evaluation. Children are not often able to provide a fully accurate account the way an adult might. 2. The passage of time between the dates of the alleged abuse and the actual trial can affect the accuracy and completeness of the evidence. 3. The Court is required to consider the evidence of young children in a manner recognizing that they may perceive events in ways different from adults. 4. The courts are not to impose the same exacting standards on childrens’ evidence. 5.

Flaws or contradictions should not be given the same significance necessarily. Children are not able to recite details with precision or exactitude. 6. The Court, therefore, should not employ the standard of a reasonable adult when evaluating children’s evidence. [ 26 ] Regarding the evidence of both complainants, the Crown asks the Court to consider the following points: 1. The general demeanour of both boys is that they were thoughtful and there was no hint of either of them having an “agenda.” 2. They were both quite visibly upset in having to recall the events and details of the incidents. 3.

Both boys fairly stated that they were scared of the defendant because he was strong. They were also afraid that if he found out they told C.C. about what happened, he would be mad at them. 4. The Court should also reject any notion that there was fabrication, concoction or collusion by the boys. 5. Having regard to the sequence of events, the Court should be able to appreciate that once the incidents with T. had taken place and were over, the defendant then started to target L. [ 27 ] Regarding L.’s evidence, the Crown asks the Court to consider the following points: 1.

He appeared to be exceptionally mature for his age when providing his video statement and giving his oral evidence. 2. The details of the various incidents were fairly complete. They had the ring of truth. 3. His evidence did not appear to be rehearsed or concocted. 4. He was relatively unchallenged on cross-examination. 5. He was very careful not to exaggerate. For example, when describing the sexual assault in his bedroom while watching TV, he

stated it was brief. The defendant touched his penis but did nothing more. 6. His manner of testifying had the air of reality to it. 7. The Court should carefully consider the way in which he reacted to the various sexual assaults against him. On one occasion, he shoved or pushed the defendant off. He also turned over and used simplistic avoidance while in bed with the defendant. This would have been an appropriate response. 8. The Court should accept his explanation as to why he did not disclose any of these incidents right away. He was scared of the defendant.

This is logical and understandable, particularly since the defendant had told him not to tell. 9. The evidence of S.P., the teaching assistant, goes a long way to supporting the evidence of L. It shows the absurdity of the notion that L. was making this up. Ms. S.P. described that L. was emotional and had his head down. He asked to speak to her in private. She had a sense that L.’s friend was preventing him from opening up. This shows how difficult it was for L. to talk about these incidents. It also shows that his demeanour was genuine rather than a simulated set of emotions.

He was struggling while having to disclose the necessary information. 10. To find that L. was exaggerating or concocting the evidence, the Court would have to conclude that he was quite the “actor”. To do so, however, would defy logic and common sense. [ 28 ] Regarding T.’s evidence, the Crown asks the Court to consider the following points: 1. He did not exaggerate the details of the various sexual assault incidents against him. 2. When giving his video statement and oral evidence, if he did not recall something he clearly said so. 3. He indicated there were only three incidents of sexual abuse.

If he was going to fabricate or exaggerate he would have stated that there were many more. 4. He also used simplistic avoidance by rolling over and trying to go to sleep when in bed with the defendant. 5. He did not overstate what happened to him. The defendant touched his penis and buttocks and rubbed his back. 6. Regarding the third incident, he used appropriate language, believing the defendant may have wet the bed. Given his age at the time, he did not quite understand what the liquid was on his back. He saw the defendant wipe himself with a tissue.

When testifying at trial, he explained that he was now older and realized that what the defendant must have been doing was masturbating and ejaculating. 7. He gave sufficient detail regarding the defendant asking him to “suck my dick”. He recounted that he lightly tapped the defendant’s arm and told him to stop, which he did. 8. When assessing credibility, the integrity of his evidence should not be undermined by his providing additional disclosure on another occasion.

It is not an uncommon situation for victims of sexual assault to provide incremental disclosure over time. [ 29 ] Regarding the evidence of C.C., the Court should consider the following points: 1. She was candid and forthright. 2. She had no “axe to grind” with the defendant, nor any “agenda” to have him arrested and charged. She liked him and wanted him to stay. 3. Just because she did not witness any of the alleged sexual abuse incidents is not altogether surprising. Not much of an inference, if any can be drawn in this regard, since sexual abuse is seldom in the open. 4.

The Court should accept her explanation that she did not call the police because of her fear of the children being taken away by the authorities. Nonetheless, she did take steps to prevent the possibility of any further incidents taking place by telling the defendant not to go near the boys or to go downstairs. It should also be noted that there were no other complaints made by the boys after the “confrontation”. 5. Some of her evidence is directly at odds with that of the defendant. For example, she clearly stated that on occasion the defendant would play soccer with the boys.

She had no reason to fabricate this, as it was such an otherwise trivial point. The defendant, on the other hand, said that he never played soccer with the boys. The Crown suggests that he was perhaps attempting to minimize his ability to be mobile in an effort to illustrate how he would have been unable to have sexual assaulted either of the boys. 6. Furthermore, given her rebuttal evidence, it is essentially at odds with what the defendant testified to. 7. Her evidence is also important because it tends to corroborate that of the boys.

For example, she confirmed she was only able to have one boy sleep with her at a time, and that the defendant offered to have the other boy. This would have afforded the defendant a “golden opportunity” to have easy, ready, and private access to each of the boys. [ 30 ] Regarding the similar act evidence, the Crown relies on similarities between the evidence of each complainant for the following purposes: 1. To establish the occurrence of the actus reus.

2. To explain the narrative and relationship between the parties. 3. To rebut any defence suggestion that the alleged acts could not have occurred because of the risk of detection and the presence of other adults in the vicinity. The Crown also submits that the high degree of similarity in the circumstances of their allegations is probative of the improbability of coincidence. In other words, the allegations are so connected that the likelihood of coincidence is objectively improbable. [ 31 ] Regarding the credibility and reliability of the defendant’s evidence, the Crown asks the Court to consider the following points: (

a) Credibility 1. His evidence was not credible. He had an agenda to “paint” the complainants in the worst light possible and to demonize them, casting them as the villains. 2. His evidence was rehearsed. 3. He took every opportunity on cross-examination to direct his responses to this point. 4. His convoluted and at times confusing testimony regarding the boys’ violent tendencies is unsupported by the balance of the evidence. 5. In fact, the defendant was the one who was violent. He was hardly the kind-hearted and self-sacrificing parent or uncle he claimed to be. 6. Rather, he was a cold-blooded predator who took advantage of two vulnerable young boys for his own self-gratification. (

b) Reliability 1. While being cross-examined, he was described as being a “moving target”. When challenged about how his responses in cross-examination differed from his evidence-in-chief, he revealed a number of examples of how he misrepresented his evidence. 2. The first example of this is that, when pressed about the times T. had his head on his lap while sitting on the couch, he added that T. always had his head on a cushion. He explained that he thought it was assumed or implicit that his head would be on a cushion, which is why he did not mention it in-chief.

The Crown submits that this is not only absurd, but is a dangerous way for an individual to give his evidence. The Crown suggests, therefore, that it reveals the defendant having “second thoughts” about how he was going to get around the evidence of T. having his head on his lap. 3. A second example is illustrated during the “confrontation”, where the defendant testified in-chief that T. was around the corner playing a video game. However, on cross, he revealed his unreliability when he admitted he made another of his assumptions about T.’s location. 4.

Yet another illustration of his “dominating” agenda which continues to shine through as a common thread in an effort to vilify T. and L. is his description of how they attacked C.C.. Yet, C.C. denied this. The Crown submits that this shows the defendant’s unreliability and his propensity to exaggerate. When pressed on cross-examination, he was unable to keep his stories straight. 5. Other examples that showed the defendant was a “moving target” and merely changing his story as he went along include the following: 1. He testified both boys attacked C.C. with power cords.

On cross-examination he then stated it was only T., perhaps only realizing he had gone too far. 2. In-chief, he testified he tied up T. to restrain him from attacking C.C.. This is a very telling use of the word “tie”, which suggests he used an object. This is the inference the Court should draw. On cross-examination he testified that what he meant by this is that he was restraining or stopping T. and that he twined his own limbs around T. The Crown submits that once the defendant realized he “laid it on a bit too thick”, it shows how easily and fluidly he was able to change his story. 3.

He testified in-chief that T. threw a shoe at C.C.. However, she denied it when she was recalled to testify. When the defendant was pressed on cross-examination on this point, he backed down and stated he never actually saw it occur. The Crown submits, however, that by this point the damage was done exposing the defendant’s unreliability. He stated in-chief that he had direct knowledge when he did not. [ 32 ] The Crown submits, therefore, that the Court should not accept the defendant’s evidence as it was neither credible nor reliable.

Furthermore, it does not raise a reasonable doubt. 4:2 The Defence [ 33 ] Defence counsel asks the Court to consider the following points:

1. The Court should find the defendant not guilty on all counts. 2. Following the W.D . analysis, the Court should believe the evidence of the defendant, or at the very least, find that a reasonable doubt has been raised. The Court should not accept the evidence of the Crown witnesses, particularly the complainants. 3. It is the defendant who has become the victim of circumstance as a result of a clumsy plan by two boys to have him removed from the residence. 4. The defendant and C.C. had a very positive platonic relationship. This was an ideal situation which solved the defendant’s housing problem.

However, the boys never “bought in”. 5. Prior to the defendant’s arrival, the boys had the “run of the house”. They did not like him from the outset because he would intervene when their behaviour was bad. Unfortunately, Mrs. C.C., although well-intended, was unable to control the boys, as sibling rivalry was rampant. If the defendant interceded, he would be subjected to hostility from the boys, with very little back-up from her. 6. The Court should accept that L. at one point did tell the defendant that they knew how to get of him. This not only had the ring of truth, but was actually true. 7.

The Court should take a global view of the entire situation, and determine that the boys “ruled the roost”. 8. It is clear that T., in particular, had behavioural problems. It was necessary, on occasion, for the defendant to contain T. physically. Counsel submits that this is hardly the behaviour of a “suitor” who was attempting to endear himself to potential sexual partners. Instead, the boys challenged him constantly. On one occasion, the defendant, in frustration, asked T. why he was behaving the way he did. T.’s response was to the effect, “I enjoy pissing you off.” 9. Although Mrs.

C.C. denied that she ever heard L. tell her to “suck the dick”, the Court should note that he had no hesitation in telling her to “fuck off.” The Court should ask itself whether this is normal for a young boy of this age to say this? It also shows that the boys had no fear of either the defendant or Mrs. C.C.. 10. There was never a “warm” relationship between the defendant and the boys. One questions, therefore, how this could have created a situation that led to some form of sexual assault? 11.

It is the height of “fancy” to conclude that these boys would remain quiet had the defendant sexually assaulted them. 12. Furthermore, it is ludicrous to believe that the defendant would have touched L. while they were all sitting on the couch, particularly when C.C. was there. Counsel submits that neither boy would have tolerated this and would have told her right away. 13.

The Court should not consider that the defendant in any way “backed off” while being cross-examined by adding that T.’s head was always on a cushion when he was laying on his lap because it was otherwise too suggestive to say if T.’s head was directly on his lap it would be sexual. 14. What is important to consider is that the defendant never sat together with L. on the couch, and in any event, he was wrapped up in a blanket like a cocoon, indicating there would have been no access to sexually touching him. 15. On the first branch of the W.D. test, the Court should accept the defendant’s evidence.

It was straightforward throughout his testimony. Even though the trial took place over several partial days, the defendant was always responsive to the questions. He withstood a thorough and intense cross-examination. He did not attempt to “dodge” the Crown’s questions, nor did he look for excuses or state he did not remember when pressed. When restraining T., the evidence should make it clear that he never tied him up in the literal sense.

Furthermore, although he did not see T. throw a shoe at C.C., what is important from this whole exchange is that whatever occurred, it was necessary for the police to be called, and sure enough, they did show up. This should demonstrate that there was nothing fanciful about the defendant’s evidence as to T.’s behaviour. Therefore, when considering the totality of the defendant’s evidence, the Court must conclude that he did nothing but try to tell the truth throughout. 16. In any event, a reasonable doubt on the whole of the evidence should be the conclusion.

The Court should note that since the defendant sustained injuries from his accident in 1986, he has been impotent and has had no sex drive. Counsel queries how could he have been a sexual partner to anyone? 17. When considering the third branch of the W.D. analysis, there are a number of aspects of the evidence of the complainants, which are fanciful, making it dangerous for this Court to convict. For example, after the “confrontation” in early 2011, the next two years passed without incident.

If the defendant had urges to sexually assault the boys, it does not make sense that he could merely “turn this off”, so to speak. What is even more unbelievable is that the defendant was not asked to leave the residence after C.C. confronted him, if in fact, something sexual had happened. The Court should also consider that two years later, while at school, L. must have been taught about “good touch/bad touch” situations which may have prompted him to disclose something. Counsel submits, however, that there should be real questions around

[…]