) ) Her Majesty the Queen – v. –, 2013 ONSC 2750

CITATION : R. v. Slingerland, 2013 ONSC 2750 COURT FILE NO.: 10-10908 DATE: 20130523 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen – and – John Owen Slingerland Defendant ) ) ) ) ) ) ) ) ) ) ) ) ) Counsel Jennifer Gleitman for the Crown Counsel Faisal Joseph and Josh Koziebrocki for the Defendant ) ) ) HEARD: February 19, 20, 21, 26, 27, 28, 2013; March 4, 5 and 18, 2013. REASONS FOR judgment Mullins j. Background [ 1 ] John “Owen” Slingerland is charged with four counts of indecent assault, contrary to

section 148 of the Criminal Code , 1953-54 (Can.), c. 51. There are four complainants. Count one relates to Robert Willitts and events alleged to have occurred between the 1 st day of January 1962 and the 31 st day of December 1966. Count two concerns William Willitts, Robert’s older brother, and events alleged to have occurred between the 1 st day of August 1962 and the 31 st day of May 1970. Count three alleges an indecent assault upon Bruce Hillis. Count three was amended at trial such that the events are alleged to have occurred between the 1 st day of June 1959 and the 31 st day of December 1961.

Count four relates to the complaints of Dietmar Reinkober. These correspond to a period of time between the 1 st day of September 1961 and the 30 th day of May 1967. [ 2 ] The four complainants testified in the Crown case. Owen Slingerland and Doreen Oliver testified in the defence case. All of those who testified were addressing themselves to events alleged to have occurred many, many years ago. The complainants are now middle aged men. The defendant and Mrs. Oliver are now over 90 years old. [ 3 ] The Crown made an application seeking that similar fact evidence be received at trial.

That application was dismissed insofar as it related to the testimony of persons other than the four complainants. The decision as to the admissibility and consideration to be given to similar fact evidence (i.e. evidence of discreditable conduct) insofar as that given at trial of the four complainants was reserved for determination after the hearing of all of the evidence. Overview of the Testimony [ 4 ] Owen Slingerland was educated at Queens University through an Officer Training Program. He earned his medical degree through the West London Hospital Medical School.

In 1969, he received his diploma in public health and became the Associate Medical Officer of Health for York and the City of Oshawa. He was an elder in the United Church in Mount Albert. He was involved in “Cubs”.

[ 5 ] Owen Slingerland assumed an established medical practice in the Town of Mount Albert in 1958. The medical office was at 38 Mill Street. Until he became a public officer of health in the late 1960s, the practice in Mount Albert was his full-time occupation. Over the years, other physicians participated in the practice and he returned to it himself in locum from time to time. He practised medicine until his retirement and surrender of his licence in 2000. [ 6 ] Don Willitts was a veterinarian who lived in Mount Albert. He and his wife raised their six children there. Mrs.

Willitts assisted in her husband’s practice by answering the phone while her husband was away, tending to large animals, as was often the case. The four youngest Willitts’ children were boys. William was third in the family sibling line, Robert fourth. [ 7 ] Don Willitts and Owen Slingerland were dear friends. Owen Slingerland had three boys who were about the same ages as the younger three sons of Don Willitts. [ 8 ] Don’s son, the complainant William Willitts, was born in September of 1956.

His younger brother Robert was born in December of 1958. [ 9 ] At the time the Willitts’ children were raised, Mount Albert was a small town within a farming community. Many residents, if not most, knew one another, say William and Robert Willitts. [ 10 ] By virtue of the friendship between Owen Slingerland and Don Willitts, the families were well known to one another, and the youngest three siblings in each remained good friends during the ensuing decades. [ 11 ] Doreen Oliver has lived in Mount Albert all of her life.

She became acquainted with Owen Slingerland when the two were, briefly, according to Owen Slingerland’s evidence, at the same high school. Many years later, she took her badly injured son to Owen Slingerland’s medical practice, having not seen him for many years. Years later, in 1967 as she recalls, she began working as a receptionist in the medical practice. This was not long before Dr. Slingerland became a public health official. Doreen Oliver marks the year she began working in the medical practice as being the same as that of her mother’s death.

She acknowledges having a sense of loyalty to Owen Slingerland. [ 12 ] Doreen Oliver’s memory of when she worked in Dr. Slingerland’s practice conflicts with the evidence given by William Willitts as to when certain events occurred. William knew Doreen Oliver as the mother of Ronny, a school mate who lived next to the school the two boys attended. Robert Willitts remembers Ronny as a friend to his brother William. Doreen doesn’t remember William, whether as a schoolmate of her son or a patient in Dr. Slingerland’s medical practice.

She has no memory of any of the other complainants, either. [ 13 ] Over the years, the Willitts and Slingerland families interacted. They belonged to the same church, which they attended weekly. Owen Slingerland provided medical care to the Willitts family. [ 14 ] In keeping with his professional obligations, Owen Slingerland kept medical records. These documents recorded dates, the particulars of examinations and diagnoses. The notes were eventually destroyed in accordance with regulatory practices governing retired physicians.

With his medical charts, he testified, he might better have addressed himself to the evidence given by the complainants. [ 15 ] Owen Slingerland has no recollection of either William or Robert Willitts having any notable medical problems. Owing to his involvement in Cubs, he acknowledges he would have examined them before they were allowed to attend summer camp. He disputes their testimony regarding Scouts. He was not, he says, involved with Scouts. He also contests their evidence that he would have examined the boys as a precondition to them first attending school.

He says he did not, they say he did. [ 16 ] Owen Slingerland has no meaningful recollection of either Bruce Hillis or Dietmar Reinkober. [ 17 ] Owen Slingerland reminisced about some of the occasions he, Don Willitts, and their children spent together. Don Willitts had a modest cottage on an island in the Temagami area. The two fathers would take their boys there from time to time, to the extent their busy practices would allow. The men and boys would enjoy swimming, fishing, and boating.

A particularly memorable occasion, according to the testimony of both William Willitts and Owen Slingerland, was when the families traveled to Magog, Quebec for a week- long ski trip. On this holiday, they shared accommodation and had their meals together. William Willitts joined the group for that week this being after he had left home and was attending CEGEP. The fathers and their sons also skied together on day-trips to Horseshoe Valley and Moonstone.

The testimony of Owen and the complainants accords, that nothing untoward occurred on these trips. [ 18 ] The Willitts’ family attended Owen’s son John Slingerland’s wedding. Indeed, until the charges before this court were brought forward, nothing disrupted the social discourse between the families. After his retirement as a physician, Owen Slingerland worked in a hardware store owned and operated by Thomas and Douglas Willitts, the two youngest of the Willitts’ siblings. [ 19 ] As a physician, Owen Slingerland explained, it was his responsibility to examine the genitalia of young boys.

He was obliged to screen for the presence of hernia, cancer of the testicle, and other conditions. He did not, under any circumstances, he testified, touch the genitals of either William or Robert Willitts for a sexual purpose. Put another way, he denies touching the genitalia of either, other than for a medical purpose. Likewise, Owen Slingerland denies touching the genitals of any patient, this necessarily including the complainants Mr. Hillis and Mr. Reinkober, other than for a strictly medical purpose.

No proper medical exam, he agreed, would involve stroking or manipulating a young boy’s penis so as to cause an erection or stimulate to orgasm. No medical purpose would be served by inserting his finger in the rectum of a young child. [ 20 ] William Willitts is now a married father of four who has lived in Australia for many years. His somewhat unusual provenance was explored in some detail, at this trial. William Willitts makes no complaint of anything untoward occurring between Owen Slingerland and him on the trips to Temagami, or while skiing in Magog and elsewhere.

By the time those trips took place, William says, he had learned how to keep out of “Owen’s reach”.

[ 21 ] William describes himself as a lonely little boy. His father was never home. He did not care for the company of his mother and sisters. He found it oppressive. At age five, he recalls, he was anxious to start school. He was hoping to find some friends there and escape the domination of his older sisters and the nuisance of his younger brothers. As things turned out, school offered cold comfort. He was a freak, he felt, marked as damaged goods. He was subjected to physical abuse and name calling. [ 22 ] William left home at age 16 and completed his high school education at a CEGEP in Quebec.

As a young man, he then travelled extensively, hitchhiking his way. Feeling welcome, he joined the Unification Church while in the United States. Through the Unification Church, he explained, a wife was chosen for him. He was married to her in a mass ceremony of some notoriety, with many others. [ 23 ] William Willitts returned to Mount Albert as a young married adult, in accordance with the directives of the Unification Church, to instruct his family in its beliefs. He did so despite his aversion to Owen Slingerland. [ 24 ] William Willitts is a journalist by profession.

He began this career by volunteering to write for the Unification Church’s publication. He now works as a reporter of financial news and has long since settled in Australia. He resisted the suggestion put to him in cross examination that he has a propensity to exaggerate. [ 25 ] As William recalls events, he was required to have a medical examination and to receive vaccinations before he was to start school at age five. That such an examination was necessary is disputed by Owen Slingerland.

Robert Willitts, it may be noted, has a similar recollection to that of his brother that he had to undergo a medical examination before being permitted to attend school. [ 26 ] William recollects that he walked to Dr. Slingerland’s office, unaccompanied, at age five for his school admission examination. His mother trusted him to the safe streets of their small town and had other youngsters on her busy hands. Owen Slingerland, by contrast, says it was most unusual for a child to attend for a medical appointment without a parent. [ 27 ] The medical exam William remembers having at age five consisted of Dr.

Slingerland looking down his throat, thumping his back and chest, and checking his eyes and ears. William remembers being on the examining table with no clothes on. He says Owen Slingerland grasped his penis and curled his index finger around it. The defendant moved his index finger back and forth over the length of the boy’s penis. In this fashion, William says, he was stroked until he experienced orgasm, this being some two to three minutes. By orgasm, William Willitts described experiencing something that caused him “dancey legs”.

Throughout, Owen Slingerland stood close to him and looked at his genitals, saying nothing. Once dressed, William walked home. [ 28 ] Similar experiences of masturbation by his family doctor recurred, William Willitts says, between the ages of five and thirteen. He calculates that “it” happened three to four times per year, which is to say “full on” masturbation, in the doctor’s office. He developed a guilty sense of dread at the anticipated pleasure. [ 29 ] The next specific experience at the hands of Owen Slingerland, William recalls as having occurred was when he was in grade two.

He remembers lying on the examination table with Dr. Slingerland close at hand. Dr. Slingerland used his right index finger to masturbate Mr. Willitts. This occasion was marked, William insisted, both in giving his testimony and while closely cross examined, by an attempt by Mrs. Doreen Oliver to enter the examining room. Owen Slingerland resisted Mrs. Oliver’s effort to enter the room. Sharp words were spoken to her.

Notwithstanding the interruption, his penis was thereafter stroked to orgasm; his legs were shaking on the table, while Owen Slingerland stood wordless. [ 30 ] In grade two William would have been six or seven years old. This places this event in 1962 or 1963. The years 1962 or 1963 were well before Doreen Oliver says she began working at the medical office of Owen Slingerland. [ 31 ] At the age of eight, William was to attend summer camp. In order to do so, he had to undergo a medical examination. He says he was examined by Owen Slingerland.

Owen Slingerland agrees that campers were to be medically examined before being allowed to attend the church camp. The camp-related examination, as recalled by William, followed the pattern of his earlier experiences; Owen Slingerland masturbating him while he was on the examination table. [ 32 ] William says he was also masturbated by Owen Slingerland when being examined by him at Cubs. This event occurred in the basement of the United Church when he was seven or eight years of age. [ 33 ] Though Owen Slingerland denies having any involvement in Scouts, William Willitts recalls otherwise.

He remembers Owen Slingerland as having a leadership position in Scouts as well as Cubs. Dr. Slingerland examined the boys in the Scout pack on more than one occasion. William says that Dr. Slingerland masturbated him then, too. [ 34 ] William Willitts kept a diary for a time. In that diary is a note dated March 31, 1970, of having had a physical exam by Dr. Slingerland. There is no mention of any sexual aspect to the examination in the diary entry.

The diary notes of that date also refer to television programs and personalities, and an event of William losing his hat behind his locker at school. [ 35 ] In the spring of 1968, in anticipation of attending Camp Big Canoe, says William, he again needed medical clearance to go. At his then age of 11 he says that Owen Slingerland, following much the same pattern of his earlier conduct, masturbated him by wrapping his finger around his penis. [ 36 ] Another specific event was recalled by William Willitts as occurring when he was age 12 or 13. He had overheard his sister, mother and aunts speaking of breast cancer.

He grew afraid that he had a lump in his chest. On a visit to the Willitts’ family home, Owen Slingerland was asked to check William for the lump. William says Owen Slingerland did examine his chest, then pulled his pyjama bottoms down and fondled his genitals. [ 37 ] Being groped and fondled by Owen Slingerland was a constant in his life, testified William, when he was between the ages of 5 and 13. He lived in terror of Owen Slingerland. One groping incident occurred, he recalls, in the newly constructed Narthex of the United Church.

The Narthex construction was a centennial celebration, wherefore this occurred in or about 1967. Owen Slingerland

groped and fondled William’s genitals over top of his clothes, while William scrambled within the cloakroom at peril to his Sunday-best clothing. Another grope occurred at a reception hosted by the Slingerland family to celebrate the construction of their new home. [ 38 ] The assaults Mr. Willitts claims to have experienced at the hands of Owen Slingerland ended, he testified, when he reached age 13. He stopped being physically afraid of Owen Slingerland, though psychologically he continued to recoil. [ 39 ] William Willitts did not tell anyone of these events until he was an adult.

He first told a sister sometime in the decade beginning in 2000. When he divulged what had happened to him to his mother, in 2009, his mother called police and the events leading to Owen Slingerland being charged were set in motion. [ 40 ] William Willitts agrees that he has held Owen Slingerland largely responsible for his miserable childhood. He stands by his stated belief that “all” of the young boys in Mount Albert had likely been sexually molested by Owen Slingerland.

His agrees that over the years, his mental health has been poor from time to time. [ 41 ] The testimony of William Willitts at trial, when compared with that given in a police statement and that he gave at the preliminary inquiry, reveals a number of inconsistencies. The inconsistencies mainly concern his recollections as to how he had dressed or undressed on the occasions he says he was assaulted. He was closely questioned about the differences in the way he described the event of Mrs.

Oliver’s attempted entry into the examining room. [ 42 ] Not only was the quality of William Willitts’ recollection questioned, but his insistence that all versions no matter their differences were equally true was closely scrutinized. Mr. Willitts was challenged to reconcile his choice to return to Mount Albert as a young adult, with his allegations of having been terrorized by Owen Slingerland’s conduct as a youth. [ 43 ] Robert Willitts admires and respects his brother William, though has probably never said so to his face.

He too says that Owen Slingerland was “the” medical doctor in the town of Mount Albert as he grew up there as a child. He knew John and Jamie, Owen Slingerland’s sons. Robert’s best friend was Owen’s son, John. Robert was accustomed to seeing Owen Slingerland socially, through his friendship with his son and as his physician. [ 44 ] Like his brother William, Robert recalls first seeing Dr. Slingerland as a patient at the age of five as he was about to begin school. He remembers the doctor’s offices being in a red brick building beside the barbershop on Mill Street in Mount Albert.

No one accompanied him when he went to the doctor’s office. It was expected, Robert says, that he was to be independent of his father who managed a busy veterinarian practice. His mother was busy, too. [ 45 ] Robert Willitts remembers having his eyes and ears looked at when examined by Owen Slingerland. He says his pants came off. It was unusual, he thought, to have anyone other than himself undo his pants or have cause to touch his penis. Robert says that Owen Slingerland touched his scrotum and looked into the end of his penis. He stroked the boy’s penis with his fingers.

Robert Willitts remembers that he did not like this and it seemed strange that anyone would take such an interest. He thinks, but isn’t sure, that he had an erection from this stimulation. He remembers no words being spoken. He recalls Owen Slingerland standing close to him. [ 46 ] This experience of being masturbated by Dr. Slingerland happened on other occasions, says Robert. He makes an estimate that it was more than five times, but less than twelve.

Specifically, he remembers when he was something less than ten years old, being on the examination table with much the same examination occurring of his mouth, ears, and chest. He remembers his pants being undone. He also says that on this occasion Dr. Slingerland placed his finger into his rectum. [ 47 ] The manner in which Dr. Slingerland is said to have masturbated Robert Willitts differs from that described by his brother.

Whereas William describes an index finger being curled around his penis and moved up and down, Robert describes something more like a pincer-style of grasp. [ 48 ] Robert describes an incident suspiciously similar to that experienced by William, of being masturbated by Owen Slingerland in an examination room while a female attempted to enter. He remembers words spoken by this woman. She said, “That is Don Willitts’ boy.” It was the voice of Doreen Oliver. [ 49 ] When he was in grade two or three, as Robert remembers, he was home from school one day.

He says that Owen Slingerland came to the house, reporting that he had encountered Robert’s mother in town and she had relayed to him that Robert was sick. Robert followed Owen Slingerland’s instructions, he said. Purporting to examine him, his pants were removed and Owen Slingerland placed his finger in his rectum. [ 50 ] Robert remembers undergoing a physical examination by Owen Slingerland as a member of Cubs. The entire troop was in the church basement.

He remembers Owen Slingerland trying to stimulate him to erection during this examination. [ 51 ] Like William, Robert remembers having his testicles squeezed by Owen Slingerland, when grasped over his clothing. This took place in the Willitts’ family home, while the two were in a back room. He doesn’t remember how old he was at that time. [ 52 ] Not unlike his brother, Robert has few recollections of the specifics of how he came to be undressed or dressed during the five to twelve events of sexual touching he says occurred. He doesn’t remember details such as the time of day or day of week.

He testified that the events were etched into his memory. In doing so, he contradicted earlier testimony, wherein he had laid claim to an ability to block bad things from his memory. [ 53 ] By about age ten, Robert recalls, he had developed strategies to avoid physical contact with Dr. Slingerland. He makes no complaint of any impropriety occurring during the ski trips and trips to Temagami. These trips took place, Robert recalls, when the boys were teenagers by which point he was beyond Owen Slingerland’s reach. [ 54 ] Bruce Hillis was born in July of 1947. His family moved to Mount Albert when he was age 12.

He suffered from asthma. The treatment available for asthma then was relatively limited. He first met Owen Slingerland as a result of experiencing a severe

asthma attack. He remembers Dr. Slingerland’s office as being on King Street, not Mill Street in Mount Albert. He was accompanied by his mother, as he recalls. They walked to the medical office, hoping to be seen without an appointment. Bruce Hillis went into an examining room where Dr. Slingerland checked his chest and back. Mr. Hillis says that Owen Slingerland put his hand on his groin and grasped his penis. Bruce told him to stop, as that was not why he was there. He believes Dr. Slingerland wrote him a prescription for antibiotics. He left the office feeling embarrassed about having been touched.

He said nothing to his mother. His mother noticed something was wrong in his demeanour and made inquiry of him. He still made no complaint. [ 55 ] Bruce Hillis remembers seeing Dr. Slingerland on one other occasion, also due to another severe asthma attack. Nothing untoward happened. [ 56 ] Owen Slingerland testified that touching the penis would only serve to exacerbate the situation of someone suffering an asthma attack and he certainly would not have done so. [ 57 ] Mr. Hillis expressed confidence in his memory that it was Owen Slingerland who had assaulted him, reasoning that Dr.

Slingerland was the only doctor in town. He identified Owen Slingerland in the courtroom as being the same person he remembers seeing at his then age of 13 or 14 in 1960 and 1961, noting the differences in the defendant’s appearance from 53 years ago. [ 58 ] Mr. Hillis was prompted to make a complaint to police about what had happened when he read of charges against Dr. Slingerland in a local newspaper. [ 59 ] Dietmar Reinkober was born in March 1951. His father, mother, and sister suffered from very poor health. His father suffered from the consequences of having been a prisoner of war in Siberia.

His mother and sister suffered greatly from hereditary rickets. Owen Slingerland cared well for his family, for which Dietmar expressed gratitude. Owen Slingerland does not remember the Reinkobers. [ 60 ] Mr. Reinkober saw Owen Slingerland in his office in Mount Albert and at such times as when Dr. Slingerland made house calls at the family home in Vivian. Dietmar was not acquainted with the Willitts, nor did he know Bruce Hillis. [ 61 ] He was about age 11, Dietmar Reinkober recalls, when he first saw Dr. Slingerland. He was naïve and sheltered from sexual knowledge.

Among other reasons for his frequent dispatches to see the doctor, he was sent at age 13 to learn the facts of life. As he remembers events, no matter what the purpose for which he was to see Dr. Slingerland, he was always undressed from the waist down and experienced some sort of examination of his genitals. He was given to understand that a search for tumours was to be made. He believes he was conditioned by Dr. Slingerland, over time, to anticipate more intrusive contact with his genitals. He recalls having his testicles and penis touched and manipulated. Mr.

Reinkober became so conditioned to Owen Slingerland’s ritual of hand washing, he recalls, that he got erections at the sound of the tap. He took inquiries made of him about masturbation by Owen Slingerland as encouragement to masturbate. He believed that Owen Slingerland hoped to catch him in the act of masturbation. He describes an extraordinary experience of leaving the office bleeding from his penis as the result of a procedure administered by Owen Slingerland. [ 62 ] Procedures involving the penis, circumcision for example, would only be performed under anaesthetic in hospital, explained Owen Slingerland.

A dressing and antibiotic creams would likely be applied. Logically, therefore, no such procedure as remembered by Mr. Reinkober was performed by Owen Slingerland in his office, according to the latter’s evidence. [ 63 ] Mr. Reinkober began to experience troubled dreams and fear of the dark. He was sent to Dr. Slingerland for treatment. Dr. Slingerland sympathized with Mr. Reinkober over the vivid horrors he reported. [ 64 ] The Reinkobers moved to Nanaimo, British Columbia in 1967. Dietmar Reinkober has lived there since. While taking a retrospective of his childhood via the internet Mr.

Reinkober explained, he encountered the Slingerland name. He searched for Owen Slingerland, motivated by what he experienced as a direction from God. He discovered through his internet search that Dr. Slingerland had been charged with criminal offences. He made a complaint himself. [ 65 ] Mr. Reinkober could not identify Owen Slingerland in the courtroom. [ 66 ] Doreen Oliver did work in the medical office of Dr. Slingerland and his many successors, but not, she says, until 1967. She has lived in Mount Albert all of her life. She did not know the Willitts’ family.

She doesn’t remember ever seeing William or Robert Willitts at the medical practice. She has no memory of the Reinkober family, nor does she remember Mr. Bruce Hillis. [ 67 ] Mrs. Oliver did have occasion to enter the examination room from time to time while working as a receptionist in Dr. Slingerland’s medical practice. She was never forbidden entry nor ever spoken to with sharp words. On no occasion did Dr. Slingerland block any attempt she made to enter an examination room according to her testimony. Position of the Defence [ 68 ] Any events captured in the indictment occurred more than 50 years ago.

The evidence of the complainants are but vague recollections to be measured against the high standard of proof beyond a reasonable doubt and the presumption of innocence to which Owen Slingerland remains entitled throughout the trial. The evidence of Dr. Owen Slingerland and Doreen Oliver contradicts the evidence given by the complainants. In such circumstances, it would be inappropriate to convict.

Had the complainants testified at or about the time of the events as they occurred, corroboration would have been required. [ 69 ] Indecent assault is not defined in the Criminal Code section. [ 70 ] All of the circumstances alleged to form the basis for the counts occurred in a medical context. There was no expert evidence called by the Crown. There are no medical records, wherefore there is no proof that the complainants attended Dr. Slingerland’s office independent of their own evidence claiming they did.

There is no medical evidence that boys of the ages described could have achieved a full erection at ages five, six, or seven.

[71] Dietmar Reinkober cannot say even now as an adult whether he has been circumcised. He describes undergoing a procedurethat would only have taken place in a hospital, according to the evidence of Owen Slingerland. He gives a fantastical account of ghoulspursuing him. [72] Owen Slingerland, it is submitted, presented as a credible witness. He is disadvantaged, in not having available to himmedical records that would have informed him as to the date, symptoms, diagnosis, and treatment he would have recorded therein.

Hegave evidence as to the reasons he would have had cause to examine boys’ genitalia during a normal medical exam. Notable for itsabsence, observes the defence, was any evidence of complaint about Dr. Slingerland’s conduct during the ski trips and camping trips thefamilies shared. [73] Doreen Oliver’s evidence establishes that she did not begin working at Dr. Slingerland’s office until well after some of theevents alleged to have occurred placed her there. She was never spoken to sharply, nor her entry forbidden to an examination room.

Thisdirectly contradicts the evidence of William Willitts and Robert Willitts that this woman attempted to enter the examining room whenthey were being assaulted by Owen Slingerland. [74] Analysed within the context of R. v W.D., (SCC), [1991] 1 S.C.R. 742 if the evidence of Owen Slingerlandand Dorothy Oliver is accepted, Owen Slingerland must be acquitted.

Even if their evidence is not believed, it gives rise to a reasonabledoubt about the guilt of Owen Slingerland and on that basis he must also be found not guilty. [75] Even if the evidence of Doreen Oliver and/or Owen Slingerland is not believed, nor gives rise to a reasonable doubt, theevidence of the complainants is insufficient to prove guilt beyond a reasonable doubt. [76] William Willitts blames his entire life’s failings on Owen Slingerland.

He calls himself a freak and damaged goods, andbelieves every young boy in Mount Albert had been molested by Owen Slingerland, begging the question as to why he would be a freak. William Willitts did not want a publication ban on the proceedings. As a journalist, Willitts is motivated to make a story interesting. Herefused to concede his propensity to exaggerate, as for example his claim to have been arrested for selling chocolates. He characterizesthe conduct of Dr. Slingerland as “terrorizing”; this the same term he used to describe the conduct of his older sisters.

Why, questionsthe defence, would William Willitts have chosen to go home to Mount Albert as a young adult given this history? William Willittsrefused to answer some questions, was guarded with his answers to others and refused to admit self-evident contradictions. This callsWilliam Willitts’ credibility into question.

Improbably, suggests the defence, William Willitts chose the occasion of the death of hismother’s second husband to disclose his allegations of having been sexually assaulted by Owen Slingerland to his grieving mother. [77] Even though he makes an estimate that he was assaulted between 30 and 40 times, there are only about 7 instances thatWilliam Willitts can specifically recall. The first was at the age of 5 when he attended at Owen Slingerland’s medical office for aphysical before he began school. He contradicted himself in giving his various accounts as to how his clothing was reclaimed followingthe assault.

When at age 6 in grade 3 he was masturbated, he says, by Owen Slingerland and Doreen Oliver attempted to come in theroom. This evidence is discredited by that of Ms. Oliver who testified that she did not begin working for Dr. Owen Slingerland until1967 and that on no occasion did she ever attempt to get in the examination room and was denied access. [78] William Willitts’ evidence that Dr. Slingerland was involved in Scouts was contradicted and not deserving of belief. As to theincident when William believed he had a lump in his chest and says he was assaulted by Dr.

Slingerland, it is noted that his evidence asto the touching of his chest on that occasion was, in some particulars, inconsistent between that given at the preliminary inquiry and thetrial. As to the incidents alleged to have occurred in the Narthex of the United Church, there were hundreds of people present and it ispatently unreasonable to believe that Owen Slingerland would have assaulted William Willitts in such public circumstances. [79] William Willitts consulted a lawyer with respect to a possible civil action against Dr. Slingerland.

William Willitts anticipatesa criminal conviction before a civil action proceeds. [80] Robert Willitts guessed and made statements of belief, in the guise of evidence. At turns, his experiences at the hands of Dr.Slingerland were either blocked from his mind or etched in his memory. He was unable to say with any meaningful specificity howmany times he was assaulted. Like his brother, he went to see Dr. Slingerland, he says, at age five. He doesn’t remember the details ofthe events, other than that his penis was stroked, he says. In describing an occasion of Dr.

Slingerland placing his finger in Robert’srectum he says he believes that if that happened he “imagines” he would have resisted. [81] In a remarkable coincidence in the testimony of the Willitts’ brothers, there was an event of someone attempting to open thedoor while in Owen Slingerland’s examination room being masturbated. Robert might have been pretending to be sick at home on theoccasion he says Dr. Slingerland entered the house all while his mother had strictly instructed him to forbid any entry.

Oddly, observesthe defendant, given his close relationship to Owen Slingerland’s son John, Robert Willitts can’t remember much about his good friend’swedding, a far more recent event than those about which he now complains. [82] The mechanics by which the Willitts say they were masturbated differs. There was no complaint of rectal touching ofWilliam. Bruce Hillis says he was grabbed over his pants while in the examination room, which differs from the modus operendidescribed by the Willitts. [83] The identification evidence of Bruce Hillis is negligible. Dr. Slingerland was not Mr. Hillis’ family doctor. Mr.

Hillis sawhim infrequently. His allegation amounts to a few seconds of being touched over his clothing. He was quite certain that Dr.Slingerland’s office was on King Street in Mount Albert. Even though he is mistaken, he insists that it’s not possible he saw any otherdoctor than Dr. Slingerland. This, in the face of the testimony of Dr. Slingerland and Doreen Oliver as to the many other medicalpractitioners who practised in the town.

Bruce Hillis said he was upset and afraid by what had occurred the first time he saw OwenSlingerland, but did not tell his mother the truth, only advising her that he wasn’t feeling well. He returned to Dr. Slingerlandnotwithstanding what had occurred on other occasions when he was suffering from asthma. [84] Dietmar Reinkober is simply not a credible witness. He claims that he was directed by a dream to investigate and make acomplaint about what had happened to him as a young man. He blamed the nightmares that terrorized him as a child on Dr. Slingerland.

He tells a fantastical story of having endured a partial circumcision by Dr. Slingerland. He was unable to identify the specifics of most of some 30 incidents he says occurred. At the age of 60 he is so ignorant he is unaware if he is circumcised. At least one of the interactions with Owen Slingerland was accompanied by a commentary that coincides with Dr. Slingerland’s explanation of examining young male patients for tumours. Mr. Reinkober did not recognize Owen Slingerland in the courtroom. His account of contacting a civil lawyer through the police website is patently unbelievable. [ 85 ] In

summary, submits the defence, the case of the Crown falls short of proof beyond a reasonable doubt and cannot survive the analysis to be applied following R. v. W.D. Position of the Crown [ 86 ] The complainants before the court have their genesis in a phone call made by William and Robert Willitts’ mother in 2009. Bruce Hillis made his complaint known after he read of Owen Slingerland having been charged.

Dietmar Reinkober read about the charges, having lived in British Columbia for decades, when he conducted an internet search. [ 87 ] The evidence of children has to be considered in light of the way children, by contrast with adults, experience events. The complainants here readily acknowledged their failings in remembering details. Their evidence bore that air of reality that is the hallmark of truth, the memories including:

i) The smell of new construction as remembered by William while in the Narthex of the church, and his concern not to dirty his good Sunday clothes, all while being pursued by Owen Slingerland; ii) Young Robert’s worry, while lying face down on his mother’s gold couch, normally a place forbidden to the children, while being assaulted by Owen Slingerland; iii) Dietmar Reinkober being treated by Dr.

Slingerland for the very terrors brought on by being assaulted by him; and iv) By Owen Slingerland’s own admission, there being no reason to have touched Bruce Hillis’ genitalia while the boy was suffering from asthma. [ 88 ] The fact that no mention was made of the events now complained of to any of the parents of the four complainants is in keeping with the times, when private experiences with private parts were not discussed. The absence of explicit detail in William Willitts’ diary note of an examination means nothing when looked at in the context of the diary contents.

There is no evidence that any of the four complainants had spoken with one another or have colluded. Even Robert and William did not speak of their similar experiences until many decades later than the events occurred. [ 89 ] The evidence of the four complainants demonstrates a pattern of similar behaviour. Owen Slingerland touched the genitals of pre-pubescent boys. He stopped when they resisted. [ 90 ] Similar fact evidence may be here used, not to suggest that Owen Slingerland was disposed to assault his young male patients, but, rather, as to whether the events complained of did in fact take place.

In the absence of evidence of collusion or other tainting, it is open to the court to consider the unlikelihood of coincidence. [ 91 ] Dr. Slingerland’s evidence was little more than a blanket denial, it not having been put to the complainants that the events they described did not happen. Many details of church and Cubs and camps; the construction of the Narthex and Owen Slingerland’s open-concept-architect-designed home; and that Doreen Oliver did work in the medical office and from time to time entered the examination rooms was confirmed by the defence evidence.

Just as the recollections of the complainants must be considered in light of the passage of time, so must those of Owen Slingerland and Doreen Oliver. He had no memory of two of the complainants and could not suggest any reason why William or Robert came to see him. She knew none of the boys. Analysis and Disposition [ 92 ] Indecent assault is an offence of general intent. It is not defined in the Criminal Code . Assault is an intentional application of force.

The circumstances under which an assault, if any, has occurred, are to be considered as to whether there has been an indecent assault. [ 93 ] As a matter of general comment, Owen Slingerland gave his evidence, I consider, confidently and with authority. There was nothing in his manner or demeanour to suggest that he was anything less than truthful. Though many years have passed since the events his memory appears to be sound.

The characteristics of his evidence were I thought, consistent with what one might reasonably expect in terms of what he did and did not profess to remember. [ 94 ] Doreen Oliver, by contrast, did not present as having a firm command over her memories. She was not examined at length, nor cross examined with vigour, so there is not a great deal of evidence upon which to base an analysis.

Her recollection of the date she first began working with the accused was delivered in a manner that was strikingly sharp I observe, especially when contrasted with her account of other events of perhaps comparative significance, for example her hesitant recounting of her involvement with Owen Slingerland when her young son was burned. [ 95 ] Dietmar Reinkober appeared not to be of robust psychological health. He did not give the appearance of confidence when testifying. His evidence did not have an air of certainty. [ 96 ] Bruce Hillis, by contrast, was composed and quietly assured in giving his evidence.

He was mistaken, it is deserving of note, in the location of the accused’s medical practice. He only saw the physician who treated him for severe asthma twice. Notwithstanding, he was confident that he was Owen Slingerland, and not any of the other physicians who may have practiced in town.

[97] William Willitts was firm, adamant even, in giving his evidence. He admits to having had some troubled times with hismental health. He likely did exaggerate somewhat in giving his evidence, especially as to his certainty around his power of recollection. [98] Robert Willitts demonstrated in giving his evidence a quiet confidence. His recollections were expressed with less certaintythan that of his brother. Similar Fact Evidence [99] The Crown made application before the trial began to allow the receipt of similar fact evidence from a number of witnesses,including the four complainants.

I reserved my decision as to the evidence to be heard from the four complainants and dismissed thebalance of the application for reasons I will not here repeat. [100] Similar facts of discreditable conduct of an accused are inadmissible except where their probative value outweighs theprejudicial effect. This thought accords with the basic tenets underlying all rules of evidence. Nothing is admissible unless it isprobative and everything that is probative should be received.

Relevance must be determined in relation to the issues bearing in mind itsvalue versus its prejudice. [101] The questions to be asked as to the admissibility of similar fact evidence include:

(1) Is the conduct that of the accused?

(2) Is the evidence relevant and material?

(3) Is it discreditable?

(4) Does the probative value outweigh the prejudicial effect? [102] In assessing the probative value versus the prejudicial effect of such evidence, consideration should be given to: (

i) The strength of the evidence; (ii) The extent to which the proposed evidence supports the inference sought to be made from it, this often corresponding to thedegree of similarity between the prior misconduct and the conduct forming the subject matter of the charge; (iii) How discreditable it is; (iv) The extent to which it may support an inference of guilt based solely on bad character; and (

v) The accused’s ability to respond to it. [103] In the words of Charron J. in R. v. B. (L.) (1997), (ON CA), 35 O.R. (3d) 35: “The question really boils downto one of human experience and common sense.” Consider, she says, R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333. InLitchfield the accused was a physician who is alleged to have sexually assaulted seven of his patients on various occasions resulting in 14charges.

There, the Supreme Court of Canada considered that the evidence provided information which was highly relevant tounderstanding the context in which the alleged offenses occurred and shed light on the nature of the accused’s relationship with hispatients.

The evidence would also tend to show a distinct pattern of behaviour engaged in by the accused. [104] It is important, says Charron J., to consider not only the acts themselves but all the circumstances in order to assess whatsimilarities, if any, exist between the discreditable conduct and the alleged offence, and whether the similarities give the evidenceprobative value. Propensity reasoning in and of itself is not prohibited.

It is propensity reasoning that is based solely on the general badcharacter of the accused which is prohibited. [105] William Willitts and Robert Willitts were well acquainted with Owen Slingerland. Robert admired and respected his olderbrother. Given the relationship between the brothers, the possibilities of collusion should be considered.

Other than their relationship,the complainants did not know one another, nor was there any evidence that they had opportunity or inclination to collude. [106] The evidence of each of the Willitts and that of the two other complainants establishes that their younger selves did not have thesocial-psychological vocabulary to speak about having had their genitals manipulated by an adult in the manner they each described.

The emotional conservatism of the day which restrained those boys, now men, was palpable, in their words and demeanour as they gaveevidence. [107] None of the complainants made complaint nor made others aware of any alleged transgressions by the defendant until decadesafter the events and having lived their lives independently of one another. [108] To be sure, there was a coincidence of circumstances in the testimony of the two Willitts’ complainants, which is of someconcern, in the story each told of a woman at the door of the examination room and of having walked alone at age 5 to undergo a pre-school examination.

There was little other evidence of any circumstance indicative of collusion between these two complainants. Theevidence they gave satisfies me that neither made the other sufficiently aware of their own experiences so as to constitute collusion. [109] Although Mr. Reinkober did not identify the defendant in the courtroom, his evidence nonetheless establishes, beyond areasonable doubt I find, that it was Owen Slingerland who was the physician who cared for him and his family. Mr.

Hillis was, Iconsider, also correct in his identification of Owen Slingerland as the physician who attended him on the occasion of his asthma attacks. [110] I find, in accordance with the evidence I have accepted, that each of the complainants was a boy, attended upon by thedefendant, in the course of the defendants’ medical practice, whose genitals were touched by the accused. I consider that each has given

reliable and truthful evidence of discreditable conduct by Owen Slingerland in his having touched and manipulated their genitals in circumstances outside of any medical purpose, wherein he thereby committed an indecent assault. The discreditable conduct of Owen Slingerland of each count is, I consider, properly part of the evidence to be considered regarding each count.

Count One [ 111 ] I do not accept the evidence of Owen Slingerland that he did not touch William Willitts, Robert Willitts, Bruce Hillis or Dietmar Reinkober other than for medical purposes in the course of examining them or treating them as their physician. [ 112 ] I believe and I accept the evidence of Robert Willitts that on two occasions, between August 1, 1962, and May 31, 1970, Owen Slingerland inserted his finger into the rectum of Robert, while ostensibly carrying out a medical examination.

I find that in so doing, Owen Slingerland perpetrated an indecent assault, there being, on his own evidence no proper medical purpose served in this touching. I also accept and believe that Owen Slingerland touched the penis of young Robert Willitts for the purpose of stimulating the child to have erections and to achieve orgasm, such occasions occurring under pretext of medical examination in the medical office of Owen Slingerland at 38 Mill Street, Mount Albert.

I accept and believe that Owen Slingerland grasped the genitalia of Robert Willitts, over his clothing, while visiting in the Willitts’ family home. [ 113 ] I do not consider that the evidence of Owen Slingerland or Doreen Oliver leaves me with a reasonable doubt of Owen Slingerland’s guilt. Doreen Oliver, having lived all of her life in a small town where most knew one another and notwithstanding her responsibilities as receptionist in Owen Slingerland’s medical practice, does not know either of the Willitts boys, sons of Owen Slingerland’s dear friend, and the town veterinarian.

In giving her evidence, she appeared to have left her loyalties and memories largely unexamined. [ 114 ] There are coincidences in the evidence of William and Robert. Each was a young, pre-pubescent boy. Both were allegedly assaulted in circumstances purporting to be of a medical exam or during social interaction between their families, by a beloved friend of the family and someone they regarded as a prominent member of their community, church and boys club.

Each developed strategies to avoid Owen Slingerland, there being no other option in the social and familial circumstances of the times. [ 115 ] The evidence of Owen Slingerland’s guilt of Count One is, I am satisfied, established beyond a reasonable doubt by the evidence of Robert Willitts, and taking into account the similar fact circumstances of the assaults upon William Willitts, Bruce Hillis and Dietmar Reinkober.

Count Two [ 116 ] I accept and believe the evidence of William Willitts that Owen Slingerland wrapped his finger around his penis and stimulated him to achieve erection, between January 1, 1962, and December 31, 1966. I find this occurred while William was in an examination room maintained by Owen Slingerland at such time as he was a licensed physician carrying on a practice in family medicine, and on the occasion of a physical examination as a Cub.

William having been born in 1956 was between the ages of 6 and 12. [ 117 ] I accept and believe the evidence of William Willitts that his genitals were groped over his clothing by Owen Slingerland on two occasions, once in the Narthex of the United Church in Mount Albert and once in the Slingerland family home. I find that in touching William Willitts as he did, Dr. Slingerland assaulted William Willitts indecently.

Specifically, I find that Owen Slingerland touched William Willitts’ genitalia not for a medical purpose. [ 118 ] I do not find that the evidence of Owen Slingerland or Doreen Oliver gives rise to a reasonable doubt on this count. Doreen Oliver knew Owen Slingerland from high school. She was his employee. She wrote a letter of support for him when he was charged. She was not seriously challenged by cross examination, possibly due to her obvious frailty. She may well have only started working at the medical office of Owen Slingerland in 1967.

It is possible that William Willitts was mistaken that it was she who was the receptionist, or that her attempt to enter the room occurred before 1967 when he would have been 11, not younger as he testified. Based on the rest of the evidence, namely that of William Willitts, and considering the similar facts, I am satisfied that there is no reasonable doubt of Owen Slingerland’s guilt of Count Two. Count Three [ 119 ] Like William and Robert Willitts, Bruce Hillis says he was touched by Owen Slingerland when his genitals were groped by him in circumstances of his attending Owen Slingerland for medical purposes.

Like them, he made no complaint to his parents. He was somewhat older than the Willitts’ boys at age 13, but was slight of build. I accept and believe the evidence of Mr. Hillis that he was touched on his genitals while in need of treatment for asthma. [ 120 ] I find, in accordance with the evidence of Owen Slingerland, that there is no medical reason to have touched Mr. Hillis in the manner described. I accept that Mr. Hillis is correct in having identified Owen Slingerland as the medical practitioner he saw when he was assaulted, even though he is wrong about the street where the medical office was.

Though Owen Slingerland shrank from the suggestion that he was a pre-eminent member of the community, or that he was, effectively, the only medical practitioner in the town, it is clear from all of the evidence that he was readily identifiable as the best known general practitioner in the town.

Indeed, even Doreen Oliver knew to take her son to Owen Slingerland when he was seriously burned in a domestic accident, though she had long since lost contact with him. [ 121 ] I find that the evidence of Bruce Hillis, which I believe and accept, establishes beyond a reasonable doubt that he was indecently assaulted between June 1, 1959, and December 31, 1961, in accordance with Count Three as amended. I do not consider that the evidence of Owen Slingerland gives rise to a reasonable doubt.

I consider that all of the evidence, including the similarity of circumstances as I have found them to be to those of the two Willitts’ boys, warrants a conviction. Count Four

[ 122 ] Mr. Reinkober may well have been a troubled child who remains naïve even as an adult. His description of his experiences at the hands of Owen Slingerland was imprecise and generalized. It lacked specifics. At the time of the events he was having nightmares. He was troubled by hallucinations. He was afraid of the dark. He tends to interpret events in spiritual terms. Nonetheless, taken in the context of his described experiences, I find his evidence was credible, reliable and deserving of acceptance. [ 123 ] Dietmar Reinkober knew nothing of the events leading to Dr.

Slingerland being charged with indecent assault upon the Willitts’ children. I accept that he first learned of it through his internet inquiry. I accept and believe his testimony that he is disinterested in any financial recovery for what he says happened to him. I believe that Dietmar Reinkober’s penis and scrotum were touched and manipulated by Owen Slingerland between September 1, 1961, and May 30, 1967, for no medical purpose, and that Mr.

Reinkober was thus indecently assaulted. [ 124 ] Like the other complainants, Dietmar was a youth whose genitalia were manipulated by Owen Slingerland for no medical purpose under the guise of medical treatment in his medical practice. I find that these circumstances assist me in my conclusion that he was indecently assaulted in the manner I have found. [ 125 ] In accepting the evidence of the four complainants and finding the facts as I have, I am, I recognize, thereby exhausting the analysis I am obliged to make in finding Owen Slingerland guilty beyond a reasonable doubt, because I do accept their evidence.

I find it establishes reliably and credibly the fact of indecent assault on each count. To this extent, this is mutually exclusive to the further analysis of the evidence called on behalf of the defence, under R. v W.D . [ 126 ] Owen Slingerland is accordingly found guilty of count four. Justice A. Mullins Released: May 23, 2013