2013 ONSC 7818, 2013 ONSC 7818

Court File No. 1714/11 SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN v. LOUIS QUESNELLE R E A S O N S F O R J U D G M E N T THE HONOURABLE JUSTICE M. MULLIGAN on July 4, 2013, at PETERBOROUGH, Ontario INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486(1) OF THE CRIMINAL CODE OF CANADA, SUPERIOR COURT OF JUSTICE DATED APRIL 15, 2013 BY JUSTICE M. MULLIGAN

APPEARANCES: K. Eberhard Counsel for the Crown D. McFadden Counsel for Louis Quesnelle THURSDAY, JULY 4, 2013 ...PROCEEDINGS COMMENCE. THE COURT: I will read my verdict reviewing the various counts. I will summarize them at the end for the benefit of both counsel, as well. CITATION: R. v. Louis Quesnelle 2013 ONSC 7818 R E A S O N S F O R J U D G M E N T MULLIGAN, J. (Orally): Louis Omer Quesnelle is charged on a 10 count Indictment. The time period for the counts in question covers a period from the first day of January, 1987 to the 11 th day of November, 1992.

D.S. is the complainant with respect to the first six counts. Count number one relates to an assault. Count number two relates to a further assault. Count number three relates to an assault with a weapon. Count number four relates to touching for a sexual purpose of a person under 14. Count number five relates to sexual assault and count number six relates to touching for a sexual purpose by a person in a position of trust. S.S. is the complaint with respect to the remaining counts. Count number seven relates to sexual assault with a weapon involved. Count number eight relates to a sexual assault.

Count number nine relates to an assault. Finally, count number ten relates to knowingly uttering a death threat. With respect to each count, the Crown is required to prove each of the essential elements of each offence beyond a reasonable doubt and this onus never shifts. The defence submits that the Crown has not met its onus with respect to each count and a verdict of not guilty should be recorded of each count. Evidence for the Crown consisted of the evidence of the complaints D.S. and his mother, S.S., and the evidence of L.S..

The defence called two witnesses: Sandra Bird, an intake worker for the Children’s Aid Society during the time period in question, and Catherine Coulterard, an intake worker for the Toronto Children’s Aid Society. She interviewed D.S. some years after the time period in question. The accused chose not to give evidence. Before reviewing the specific elements of each offence, the relationship of the three Crown witnesses to the accused will provide context for the discussion that follows. S.S. gave evidence that she moved into a residence owned by Mr. Quesnelle in 1987.

At that time, she was about 31 years of age and had two children, L.S., who was born […], 1977 and D.S. who was born in […] 1982. She was separated from her spouse and learned that Mr. Quesnelle - and, perhaps, I should say Quesnelle. I may be pronouncing the incorrectly, Quesnelle.

MR. MCFADDEN: Quesnelle. Thank you. THE COURT: ...had a cottage in Bailieboro near Peterborough which was made available for her and her children to rent. The cottagewas winterized and she resided there with her children who went to school in Bailieboro. Mr. Quesnelle also owned a smaller cottagenext door. After a time he moved in and Mr. Quesnelle and S.S. commenced a common-law relationship. She acknowledged that thisrelationship included consensual sexual relations. When she moved in, her son, D.S., was about five and her daughter, L.S., was aboutten.

In the fall of 1992, the common-law relationship had broken down permanently. S.S. moved out with her two children. At that point,L.S. was about 15 and D.S. was about 10. According to Crown witnesses, Mr. Quesnelle worked at the Keele Valley Landfill Site some distance away from Bailieboro. He wouldgo to work and stay nearby throughout the week at a temporary residence, returning to the cottage on Friday evening for the weekend. He may have worked every other Saturday at the landfill site during the time period in question. S.S. was a stay-at-home mother.

When she first moved into the residence, she did not have a vehicle. After a time, Mr. Quesnellebrought her a second-hand car. She began working part-time at a flea market stall for him on some weekends and pursued some otherpart-time employment. During the time period in question, there was, at least, one occasion when she and the children moved out to ashelter in Peterborough and another residence for a time because of a temporary breakdown in the relationship. This was evidentlyrepaired because she moved back into the Bailieboro cottage with her children.

The alleged incidents described by the two complaints occurred over 20 years ago. From the evidence of D.S., his mother, S.S., and hissister, L.S., emerges a pictures of life for this family while living in Mr. Quesnelle’s cottage in Bailieboro. Before describing thatpicture, a few words about each of the witnesses is in order. D.S. D.S. was 30 at the date of the trial. The alleged events took place when he was five to ten years old and living with his sister, L.S., whowas five years older and their mother, S.S. at Mr. Quesnelle’s residence. By all accounts, D.S. has had a troubled life.

He haddifficulties in elementary school requiring relocation to another school. He told the court that by 13, he was experimenting with alcoholand by 18, he was an alcohol, drinking heavily until he was about 26. He has a criminal record which started in Youth Court and he hasan adult record for fraud, public mischief, threatening and assault. He has received probation, suspended sentences or conditionalsentences from these various offences. He told the court that he turned his life around in September of 2009 when he became sober.

Hetold the court that alcohol abuse was a factor in these incidents leading to arrests and he pleaded guilty when these matters came beforethe court. He has recently earned a college diploma in addictions and community service as a community service worker and works part-time for the Salvation Army Men’s Mission. He has had no contact with Mr. Quesnelle since leaving the Quesnelle cottage when he was10. D.S. told the court that he was on anti-anxiety medication at the time of the trial. L.S. L.S. is D.S.’ older sister. She was 35 at the time of the trial.

She was between 10 and 15 years old when she resided with her brotherand her mother at Mr. Quesnelle’s cottage. She has no criminal record and is not a complainant with respect to the charges before thecourt. She is employed as a property manager. However, her evidence provided context for life in the Quesnelle residence and providedsome aspects of corroboration for some of the evidence given by her brother, D.S., and her mother, S.S.. She has had no contact withMr. Quesnelle since leaving the Quesnelle cottage at age 15 except for a brief exchange at a wedding she attended years later. S.S.

At the time of the trial, S.S. was 56. She was about 31 when she moved into Mr. Quesnelle’s cottage in Bailieboro with her twochildren, D.S. and L.S.. She has a criminal record for fraud and for assault. Both defence counsel and Crown counsel suggested that herevidence be considered with a great deal of caution. Defence counsel suggested her evidence be rejected in its entirety and Crowncounsel suggested that it should be approached with a “Vetrovec”-like caution. The jurisprudence flowing from the Supreme Court ofCanada’s decision in R. v.

Vetrovec, (SCC), [1982] 1 S.C.R. 811 assists triers of fact with a warning when assessingevidence from certain witnesses including those that: .have a lengthy criminal record; .have a motive to lie;

.have provided different accounts on different occasions; .or have lied under oath. A couple of examples of her evidence will illustrate the point. She told the court she was injured in an automobile accident and suffered 157 fractures. When confronted with the hospital admissions report indicating that there were no fractures, she maintained a position which was obviously untenable, insisting that someone told her she had 157 fractures. She told the court about numerous guns that Mr. Quesnelle had in the house. She told the court that the police came on one occasion and she showed these guns to a police officer.

However, she could not explain to the court why Mr. Quesnelle was not arrested and why no guns were removed from the house as a result of her alleged report. In addition, there were numerous inconsistencies between her evidence at court and her previous statements to the police or at the preliminary hearing. Under the circumstances, I approach her evidence with caution and I look for corroboration from the evidence of D.S. or L.S.. I found their evidence to be much more reliable and trustworthy. Life at the Quesnelle cottage started out amiably at first but over time, Mr.

Quesnelle became controlling, both physically and emotionally, of S.S. and her two children. At five foot seven and 300 pounds, he was physically imposing. In addition, he controlled many aspects of household life. At first, S.S. had no car and was dependent on him for transportation. Over time, he purchased a car for her, but she was not allowed to take the car outside of Peterborough County. D.S., looking back as a young person of five to ten years of age, described him as bossy and mean. He gave specific examples of physical abuse by against him by Mr. Quesnelle.

I will describe those in more detail when I review the counts. Mr. Quesnelle required members of the family to shower together, ostensibly to save water. D.S. says that the sexual assaults that he was subject to by Mr. Quesnelle occurred in the shower, primarily, and on a regular basis. D.S. recalled specific incidents of physical abuse by Mr. Quesnelle. On one occasion, he recalled being picked up and thrown in the air, only to land on the ground because Mr. Quesnelle had seen him doing the same thing to a frog. On another occasion, he recalled being hit and injured on his buttocks when Mr.

Quesnelle hit him with a board with a nail in it. On another occasion, he recalled when Mr. Quesnelle struck him on the back with a hockey stick. On another occasion, he recalled that Mr. Quesnelle made him run away from him while Mr. Quesnelle discharged a gun overhead. D.S. saw Mr. Quesnelle in the role of a stepfather. Both D.S. and L.S. told the court that they were awakened in the morning by Mr. Quesnelle when he used a bugle or a siren and this became normal practice. He also recalled arguments between his mother and Mr. Quesnelle and, on one occasion, Mr. Quesnelle threw a brick at her car window.

He recalled that they moved out of the Quesnelle cottage on one occasion and lived in a basement apartment. D.S. recalled an incident at school where he may have said something to a teacher about problems at home. A meeting was called with the school and CAS and D.S. recalled that Mr. Quesnelle told him not to say anything or he would get in trouble. At the meeting, D.S. recanted his allegations and the file was closed. However, he told the court that he received a beating from Mr. Quesnelle after that event. D.S. recalled an argument in the living room when he saw his mother thrown across the room by Mr.

Quesnelle. He recalled Mr. Quesnelle often walking around the house naked and this was verified by L.S. who was between 10 and 15 years at the time. But D.S. fairly indicated that not all life at the Quesnelle cottage was bad. As he stated in his evidence: Like I said, it wasn’t always bad. There were some good times when I felt normal, you know, like we’d have trips on the boat or, you know, we’d do stuff like that. I felt normal, you know, but I was always nervous. So, it wasn’t always bad. There were some good times. S.S. testified about the change in in her relationship with Mr.

Quesnelle because of abuse toward her and her children. She talked about yelling, pushing and grabbing of hair. She indicated that she moved out for a time to Peterborough and the children changed schools. She returned when she and Mr. Quesnelle reconciled, but things got worse. She gave evidence about seeing Mr. Quesnelle tossing D.S. up roughly in the driveway. She also gave evidence about other forms of punishment meted out to D.S. by Mr. Quesnelle including

hitting him with a hockey stick. She confirmed D.S.’ evidence that after the meeting at the school, Mr. Quesnelle yelled at her son and while they were in the truck reached over and struck him. On one occasion, the police attended at the residence in 1992. However, it was S.S. who was charged because of the altercation with Mr. Quesnelle. After she finally left the residence in the fall of 1992, she moved to a shelter for a time. When the mother of S.S.’ ex-husband passed away, she wanted to attend the funeral with her children.

L.S. was especially adamant that she wanted to go to say final goodbyes to her grandmother. However, the evidence of L.S. suggests that he was violently opposed to leaving to go to this funeral and he attempted to prevent them. There was some evidence that he threw a cinder block against the windshield of her car. Both D.S. and L.S. also spoke about witnessing this incident. However, they did go to the funeral several days later when Mr. Quesnelle was not at home. They were actually driven by Mr. Quesnelle’s son, Victor, whom they had a close relationship with.

L.S. also spoke about several incidents which occurred at the house including a gun incident with D.S. which I will speak about later in connection with that count. She saw herself as the favourite child of Mr. Quesnelle and her mother and had no direct difficulties, but she saw him in the role of a stepfather and he provided discipline and rules. He would be the primary driver if they had to go places. She confirmed that Mr. Quesnelle often would walk around the house naked. She was able to describe his genitals. She gave evidence about seeing physical abuse towards her mother by Mr.

Quesnelle, including a great deal of verbal abuse. She also gave evidence about observing physical abuse by Mr. Quesnelle toward D.S.. When describing his controlling behaviour, she spoke about the telephone. As she said in her testimony: Answer: He was always very verbal about this. It was his house, that’s his phone and he would control the use of it, yes. Question: How would he control the use of it? Answer: He said that if we - depending on the situation, if we used it, he would smash it. When she was about 12, she ran away from home contacting her birth father and going to his home.

He contacted the police and she was returned to the S./Quesnelle residence and she was grounded for about three months. When she returned home, furniture had been removed from her room and blankets were left on the floor for her to sleep on. She slept on the floor for a week and this was the punishment meted out by Mr. Quesnelle for running away. She confirmed being at the meeting at the school about D.S. and the CAS workers and they were questioned about abuse and she now says that she lied about the fact that there was no abuse because she knew what the right answers were in view of seeing her mother and Mr.

Quesnelle before the meeting. She acknowledged on one occasion beating up her brother, D.S., because she was asked to by Mr. Quesnelle or possibly another adult at home at the time. L.S. confirmed that it was a common practice for her brother, D.S., and Mr. Quesnelle to shower together. Her evidence was that Mr. Quesnelle would engage in sex talk in front of the children including discussion about “blow jobs”. When asked about sex talk at home, she said: Answer: He was always very open about sex... Question: And when and where and how much would he talk about “blow jobs”?

Answer: In general conversation and in regular context when we were talking and just laughing, tee-hee, and, “you know, I could really use a blow job.” Defence Witnesses

Witness Sandra Bird Currently, Sandra Bird is a social worker who works for the school board. In September of 1990, she was working for the Children’sAid Society as an intake worker and made notes about her meeting with D.S. and with L.S. at the school after their mother had called torequest a meeting. She relied on her notes when giving evidence. She had no specific recall of the meeting. There was some suggestionthat D.S. had been hit with a plastic or wooden hockey stick. After the individual meeting, she met with D.S., D.S.’ mother and Mr.Quesnelle together.

At the meeting, D.S. denied any physical discipline and no further action was taken on the file. Witness Catherine Coulthard Catharine Coulthard is currently a social worker in Toronto. Prior to that, she was a CAS intake worker in Toronto from 1995 to 1998. She did not have her notes, but did a report at that time as she was required to do. She relied on that report when giving evidence. Shehad no specific recall of the meeting. The report indicated that she conducted an investigation and met with D.S. in 1996. At that time,he would have been 13.

Her report indicated that D.S. reported that he had been sexually abused by Mr. Quesnelle about three timeswhen he was six, seven or eight years of age. She told the court that under the protocol in place at the time, a police investigation wascalled for, but D.S. had left this area. A full probe would have included involvement with CAS and the police but that was not done andshe learned that D.S. had left the area. The file was closed.

Legal Principles There are a number of legal principles that have application to a trial such as this where credibility and reliability are very much in issuebased on the historic nature of these allegations. In submissions, both Crown and defence made reference to some of these principles. As stated previously, the Crown bears the onus to prove guilt beyond a reasonable doubt and that onus never shifts. Mr. Quesnelle hasno obligation to prove his innocence. As judges often explain to juries, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy orprejudice.

It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or lack of evidence. Proof of probably or likely guilty is not proof of guilt beyond a reasonable doubt. However, it is clearly impossible to prove anythingwith absolutely certainty and Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. There are a number of factors at play when assessing a witness’ credibility or reliability but, at the end of the day, the court can acceptsome, all or none of a particular witness’ evidence.

In doing so, the court must examine whether there are innocent discrepancies in awitness’ testimony or deliberate lies. In assessing credibility, jurors are often asked to use their common sense and experience to assess awitness’ testimony. At this trial, two adult witnesses gave evidence about events that occurred in their childhood. D.S. was between five and tenyears of age at the time and his sister, L.S., was between 10 and 15 years of age at the time of the alleged incidents.

The Supreme Courtof Canada has given guidance on the assessment of credibility of an adult witness giving evidence about events which occurred inchildhood. In R. v. W.(R.) R.W., (SCC), [1992] S.C.J. No. 56, Chief Justice McLachlin reviewed the change in attitudetowards the evidence of young children. When speaking about evidence from adults who are recalling incidents from their childhood,the court stated at paragraph 26: In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters suchas time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. With respect to the change in attitude toward the evidence of children, Chief Justice McLachlin in R. v. W.(R.) R.W., supra, made reference to the comments of Wilson J. in an earlierSupreme Court of Canada decision, R. v. B.(G), (SCC), [1990] 2 S.C.R. 30. As Justice Wilson stated at paragraph 48:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years, we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath-taking and corroboration and I believethis is a desirable development.

The credibility of every witness who testifies before the courts must, of course, be carefully assessed, but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. With respect to when a person discloses allegations of sexual assault, the timing of the allegation was the subject of further guidancefrom Chief Justice McLachlin in the Supreme Court of Canada decision R. v. D.D., [2002] 2 S.C.R. 275.

As the court stated atparagraph 65: Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for the delay are many and at least include embarrassment, fear, guilt or lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of a complaint is simply one circumstance to consider in the factual mosaic of a particular case. In a case such as this, I remind myself of the importance of the principles of credibility and reliability. The difference was explained in R. v.

H.C., [2009] ONCA 56, Justice Watt who stated at paragraph 41: Credibility and reliability are different. Credibility has to do with the witness’ voracity, reliability with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately (

i) observe, (ii) recall, (iii) recount events in issue. Any witness whose evidence on an issue is not credible, cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: acredible witness may give unreliable evidence. More recently, Justice Watt stated in R. v. Wadforth, 2009 ONCA 716 , [2009] O.J. No. 4176:

Assessment of credibility is a difficult and delicate subject, often defying, precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. In this case, count three relates to assault with a weapon. It is instructive to review section 265(1) of the Criminal Code and the judicialinterpretations of that section. Section 265(1) provides: A person commits an assault when (

a) without the consent of another person, he applies force intentionally to the other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. In R. v. Horncastle, {1972] N.B.J. 87, Limerick, J.A. speaking for the New Brunswick Court of Appeal stated at paragraph 43: The offence of assault is committed when a threat is intentionally made to apply force to the person of another and there is the present ability to carry out that threat. Neither the degree of alarm felt by the person threatened, nor the intent of the accused to carry out that threat are involved in the determination of the guilt of the accused. In R. v. Melaragni, [1972] O.J.

No. 4178, Justice Moldaver (as he then was) addressed the issue and reviewed jurisprudence from theQuebec Court of Appeal in R. v. Colburne, (QC CA), [1991] 66 C.C.C. (3d) 235. Justice Moldaver considered thedecision of Justice Proulx in Colburne and stated at paragraph 48: Mr. Justice Proulx then considered s. 265(1)(

b) and noted that this provision provided that assault could be committed by the mere fact of

attempting or threatening by

an act to apply force to another person if the potential wrong-doer had the present ability to effect his purpose. Justice Moldaver then quoted with approval the following paragraph from Justice Proulx’s decision: In my view, it follows that the person who discharges a firearm in the direction of another person necessarily commits assaults, even if he misses his target and even if the victim is unaware of it. One of the counts before the court, count 10, deals with an allegations that Mr. Quesnelle knowingly uttered a threat to S.S.. TheSupreme Court of Canada addressed this issue in R. v.

Clemente, (SCC), [1994] S.C.J. No. 50. Speaking for the court, Justice Cory indicated that a court would berequired to determine, first of all, if a threat to cause serious bodily harm was uttered and, second, as he stated at paragraph 13: To determine if a reasonable person would consider that the words were uttered as a threat, the court must regard them objectively, andreview them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.

I will now review the 10 counts in the Indictment with reference to the specific elements of each offence. I will begin by reviewingcounts seven, eight, nine and ten. The complainant is S.S.. I have already spoken about the Supreme Court of Canada’s jurisprudence in R. v. Vetrovec. In R. v. Khela, [2009] S.C.C. 4, Justice Fish for the Supreme Court of Canada listed four main elements of an adequate jury charge whenjurors are triers of fact: 1. Drawing the attention of the jury to the testimonial evidence requiring special scrutiny; 2. Explaining why this evidence is subject to special scrutiny; 3.

Cautioning the jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and

4 . That the jury, in determining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused. Count 8 I begin by reviewing count eight. S.S. alleged that Mr. Quesnelle committed a sexual assault and that she was the victim between the 1 st day of January ‘89 and the 11 th of November ‘92.

The elements of sexual assault require that there be an intentional application of force, that the complainant did not consent to the force and that the accused knew that there was no consent to the force applied and that the force intentionally applied took place in circumstances of a sexual nature. S.S.’ evidence was clear that at the beginning of the relationship, they had consensual sexual relations. This included oral sex which she indicated Mr. Quesnelle preferred. However, her evidence was that as the relationship deteriorated, she did not consent to sexual relations with Mr.

Quesnelle and, therefore, the issue to be determined is whether or not there was an absence of consent. The Criminal Code does not require corroboration as to ground a conviction for sexual assault. However, the court is required to scrutinize carefully the evidence of the complainant. In this case, the defence urges the court to reject her testimony entirely. The Crown urges the court to approach her evidence with caution and a Vetrovec-like warning. I am satisfied that there were numerous inconsistencies in her testimony.

She was challenged on cross-examination as to the different versions of her story given at trial versus the preliminary hearing. I have already made reference to two areas of concern and I need not review the numerous other inconsistencies that became apparent after cross-examination. Under the circumstances, I have a reasonable doubt as to whether or not there was an absence of consent in connection with the sexual activity between S.S. and Mr. Quesnelle. I, therefore, enter a verdict of not guilty with respect to count eight.

Count 7 I now turn to count seven which alleges assault, a sexual assault on S.S. with a weapon; a firearm. Once again, the same issue of consent is at play along with the other elements of the offence. The final element with respect to this count was whether or not a weapon was involved in connection with this assault. S.S. gave evidence of firearms in the house. She also gave evidence that Mr. Quesnelle had handguns. On the occasion in question, she indicated they were both in bed and she was fighting or struggling with him in connection with his attempt to have intercourse with her.

She told the court she felt something cold and sharp touching her lower area, perhaps, her vagina or anus. She thought it may have been a gun as a threat to perform oral sex. She did not see the gun in the bed but later saw it on the floor near the bed. She was confronted with her evidence at the preliminary hearing where she said that the police were called. She agreed that her story now was different than the way she explained it at the preliminary hearing. She gave different versions about whether or not the police were called.

In her statement, she said that there was blood on the bed, but that was not part of her testimony at trial. I have a reasonable doubt about whether or not the Crown has proved the essential elements of this offence. I have already addressed the issue of consent. I am not satisfied beyond a reasonable doubt that the Crown has proved an absence of consent. In addition, I am not satisfied beyond a reasonable doubt that a handgun was used by Mr. Quesnelle in furtherance of a sexual assault. I, therefore, enter a verdict of not guilty with respect to this count and the lesser and included count of sexual assault.

Count 9 Count nine alleged that Mr. Quesnelle committed an assault on S.S. during the period the 1 st day of January, 1989 to the 11 th day of November, 1992. As already been noted, S.S. and Mr. Quesnelle had a stormy relationship with verbal yelling and screaming, often in the presence of the two children. Her evidence was that he would shove her, pull her hair and physically confront her in front of the children. She gave evidence that she saw him slap her daughter, L.S., on several occasions and, on another occasion when he refused her request to go to a funeral, he threw a cinder block against her windshield.

Her evidence was that the police were called on numerous occasions, perhaps, eight or ten times, but this was not corroborated. D.S. recalled the police coming twice; one incident involving his own activities as a child misbehaving. She recalled one incident in 1992 when she and Mr. Quesnelle had an argument and there was pushing and shoving of a table. Her

evidence was that she was charged as a result of this incident and, as she recalled, she got a conditional discharge. D.S. and L.S. recalled at least incident, perhaps, the incident where the table was being pushed around where Mr. Quesnelle slapped their mother. Her evidence was not clear that she was slapped on this occasion. I remind myself that this incident happened over 20 years ago and, if S.S. was being truthful, she had numerous opportunities to report these matters to the police.

When I consider all the evidence about this common assault, including serious concerns about her credibility, I am not satisfied that the Crown has proved beyond a reasonable doubt that an assault was committed by Mr. Quesnelle on S.S.. I, therefore, record a verdict of not guilty with respect to count nine. Count 10 Count ten alleges that Mr. Quesnelle uttered a death threat to S.S.. The essence of her evidence was that he threatened to kill her if she left his residence. D.S., in his evidence, gave some corroboration as to some threats of this nature.

As he said in his testimony: I can recall many times my mom wanting to leave and he would threaten us with them (guns) and saying he was going to kill us, and mom did leave a couple of times and then she went back, unfortunately, but, yeah, I can remember that they had arguments and stuff, he would always threaten us with them and intimidate and tell us he was going to kill us and, you know, stuff like that.

I remind myself of the guidance from the Supreme Court of Canada in Clemente , the threats, if uttered, must be regarded objectively and reviewed in the light of the circumstances that they were uttered, the manner in which they were spoken and the persons to whom they were addressed. Clearly, S.S. and Mr. Quesnelle had a stormy and, eventually, toxic relationship. The verbal yelling and arguing was not one-sided. According to the evidence of the children, both parties were involved. S.S. did leave the residence for a period of time with her children, but she moved back to resume residence at Mr.

Quesnelle’s cottage. In my view, a reasonable person concerned about such threats would not return to the residence of the threat-maker. In the context of the stormy relationship between the parties, the years that have gone by since this alleged offence and the ability of S.S. to report this to the police on earlier occasions and to leave the residence in a vehicle that was purchased for her, I have a reasonable doubt about whether such utterances constituted a threat when viewed objectively and in the light of the circumstances.

I, therefore, find that the Crown has not proven the essential elements of this offence beyond a reasonable doubt. I record a verdict of not guilty with respect to count 10. I now will review counts one to six. The complainant is D.S.. Counts one, two and three deal with specific instances of assaults that D.S. alleges took place during the period of time that he lived in Mr. Quesnelle’s residence when he was five to ten years old with his mother and his sister. Counts four, five and six are interrelated in that they deal with the allegations of sexual activity between D.S., a child at the time, and Mr.

Quesnelle. Count four deals with touching for a sexual purpose. Count five deals with sexual assault and count six deals with touching a young person for a sexual purpose by a person in a position of trust. Count 1 Count one deals with a specific assault alleged by D.S.. He alleges that on this particular occasion, Mr. Quesnelle picked him up while he was playing in the driveway, threw him up in the air and he landed on the ground. His evidence was that he was playing with a frog and Mr. Quesnelle had seen him throw a frog up so he responded by doing the same thing to D.S.. As D.S. said in his evidence:

The one that - there’s two that really stick out in my mind. I was playing – like, we have a half-moon driveway and I was playing by the culvert, and I was playing with frogs and I had brought the frog up and threw it up in the air - throwing it up in the air, and it came down and it killed, like, it killed it. And he came over and he done the same thing to me. He threw me up in the air. He was yelling at me and I landed, and he was hitting me on the ground. That was the one that really sticks out in my mind. D.S. recalls that he was between five and seven when this occurred.

On cross-examination, there were instances when D.S. said that his memory was foggy or he was not 100 percent sure about things. But his recollection of this frog incident was not shaken in cross-examination. I find his evidence both credible and reliable. His sister, L.S., also witnessed this incident. She was at home at the time and had an opportunity to observe the conduct alleged.

As she said in her testimony: Louis said that he shouldn’t be cruel to animals and something to the effect of “If you want to hurt a frog like that, then I’ll hurt you like that,” and he picked him up and he tossed him in the air, just like he had tossed the frog or the frog jumped. And my brother hit the gravel pretty hard. I remember he had scraped up hands, scraped up knees, that sort of thing, the way he landed to protect himself. In cross-examination, she was challenged as to whether she was inside the house or outside playing when this occurred.

Although her story may have changed as to where she was when she observed this event, in my view, such inconsistency is minor and does not detract from corroborating this incident as alleged by D.S.. I am satisfied that the Crown has proven beyond a reasonable doubt the essential elements of this offence and I record a verdict of guilty for count number one.

Count 2 Count two alleges that Mr. Quesnelle committed an assault on D.S.. The essence of this count is that Mr. Quesnelle offered L.S. $5.00 and encouraged her to beat up D.S. who was playing in the yard. It is admitted by L.S. and by D.S. that there was such an altercation between brother and sister and L.S. pushed his face in the mud, having been encouraged to do so on the basis that she would receive $5.00. However, the evidence from D.S. and L.S. was that Mr. Quesnelle was not the only adult present. As D.S. said in his testimony: Answer: I can’t be clear which person said it.

I want to say that Keith, if that’s his name, Keith said it. That’s what I want to say. Question: And what part did you overhear? Answer: I can’t say word for word, but it was something along the lines, you know, if you beat him up, I’ll give you $5.00. Something along those lines. I couldn’t tell you exactly. L.S. also spoke about this incident. In-chief, she indicated that it was Mr. Quesnelle who encouraged her to beat up her brother. However, in cross-examination, she was less clear. She did not dispute that there was another person present with Mr. Quesnelle.

She was asked in cross-examination: Question: You don’t know who yelled it out, do you? Answer: I - I would say it was Louis. Question: You can’t be certain, though, can you? Answer: Probably not. Although I accepted the incident occurred, I have reasonable doubt, based on the evidence of D.S. and L.S. as to whether or not it was Louis Quesnelle who encouraged L.S. to rub her brother’s face in the mud for $5.00. I, therefore, record a verdict of not guilty with respect to this count. Count 3 Count three alleges that Louis Quesnelle committed an assault on D.S. with use of a weapon.

The evidence of D.S. and L.S. indicates that they were in the backyard with Mr. Quesnelle and he was doing some target practice with one of his rifles. According to L.S. D.S. was about five years old and expressed an interest in using the gun. Mr. Quesnelle responded that little boys do not play with guns and told him to run. Her evidence was that Mr. Quesnelle shot the gun toward her brother, but over his head, toward the lake. He ran into the arms of a neighbour passing by and he was he was upset but comforted. He had no physical injuries according to the evidence of L.S. on cross-examination.

Although D.S. indicated in giving some of his evidence that he was not 100 percent sure of things or his memory might be foggy, he was very clear about this incident which, obviously, made an impression on him. I accept his evidence as both credible and reliable. I find support in his evidence from the testimony of L.S. who also had a vivid recollection of the event. I am satisfied that the Crown has proved the essential elements of this offence.

Under section 265(1)(b), the act or gesture of discharging a firearm in the direction of D.S. constitutes an assault in accordance with the jurisprudence that has been developed with respect to this section. I, therefore, record a verdict of guilty with respect to this count.

Count 5 Counts four, five and six relate to allegations of sexual activity between D.S. and Mr. Quesnelle. I will begin by reviewing count five, an allegation that Mr. Quesnelle committed a sexual assault on D.S. between the period the 1 st of January, 1989 and the 1 st of September, 1992. During this period of time, D.S. was five to ten years old and was residing with his mother and his sister at Mr. Quesnelle’s cottage. Mr. Quesnelle resided there, as well. D.S. told the court that during this period of time, he was required to have a shower with Mr. Quesnelle on a regular basis.

This sharing of the shower was common among family members and the ostensible purpose was to save water. It was D.S.’ evidence that he was required to give Mr. Quesnelle oral sex while in the shower. He did not recall being physically forced, but said that he was on his knees and Mr. Quesnelle was standing. He testified that Mr. Quesnelle ejaculated on his face and in his mouth. He spoke about another attempted sexual assault in the bedroom. He said in his evidence: He tried to have sex with me and that didn’t work, and he got angry and I got beat up. I got smacked. He was angry at me. He testified that Mr.

Quesnelle bent him over the bed and, as he stated in his evidence: I can clearly remember me telling him, ‘No, no, no, no.’ I remember me screaming it over and over. As far as the frequency of sexual assault in the shower, he stated: It would vary, but normally once a weekend. He talked earlier in his evidence about going to McDonald’s with Mr. Quesnelle every weekend, and other treats, and he was asked: Question: Did it, in your mind, have any relationship between these things and the assaults that were occurring? Answer: It was like I was being bought. That’s what it felt like.

In-chief, there was some confusion about whether these events were on Saturday or Sunday. As he said in his answer: Answer: To be fair, it could have been on a Sunday, but I remember Saturdays - Sunday. It could have happened on the Sunday, that’s what I’m saying. In cross-examination, he was confronted with a discrepancy in his evidence at the preliminary hearing where he said that these events occurred every Saturday. Sunday was not mentioned.

He was confronted with questions and answers from the preliminary hearing and it was submitted to him that Mr. Quesnelle worked every second Saturday at the dump, so he wasn’t home. The question put was: Question: I asked a question right after that question. If, in fact, he did have a shift every second Saturday, then you’d agree with me that the events that you were describing wouldn’t have happened on a Saturday, right? Answer: To the best of my memory, they happened every Saturday. D.S. was challenged that he only started mentioning Sundays because of the submissions made to him at the preliminary that Mr.

Quesnelle was not around on some Saturdays. The following questions and answers cover the point: Question: Well, D.S., that’s why you threw in yesterday that it could have been on a Sunday, right? Answer: No. Question: Because you reviewed your preliminary hearing transcript, right? Answer: I did. Question: And you realized there might be a problem, correct? Answer: No. Question: Then why bring up Sunday? Answer: I’m a little kid. I’m pretty sure it was every Saturday. If it happened on a Sunday, that’s why I put it out there, just in case it happened on a Sunday.

The evidence of L.S. indicated that there were extensive periods of time when Mr. Quesnelle was not working and was at home because of a Workmen’s Compensation issue. I accept her unchallenged evidence that on the point which would indicate that there were numerous Saturdays when Mr. Quesnelle was not working and was not away.

D.S.’ evidence was that he did not tell anyone about these alleged sexual assaults until recently. He may have told an uncle who has now passed away. He did not discuss the issue with his sister, although they had some heart-to-heart talks over the years. He did not discuss the issue with his mother. However, it appears from one of the defence witnesses, Catherine Coulthard, that he may have discussed these issues with her when she interviewed him in 1996 when he was about 13. At that time, she was working as an intake worker for the Toronto Children’s Aid Society.

She had no specific recollection of meeting with D.S., but she took notes at the time and those notes were turned into a report which was produced at trial. The report indicates, in part, as follows: D.J. (D.S.) advised that he was sexually abused by Louis Quesnelle between the ages of six, seven and eight. The abuse happened approximately three times. At the time of the interview, D.S. was 13 years of age. He was having a troublesome life being bounced around between his two natural parents with CAS involved in his life. At this point, he was no longer living in the Quesnelle residence. Ms.

Coulthard indicated in her testimony that it was not appropriate for her at that time to delve into the allegations of sexual assault unless a certain protocol was followed. That protocol would have involved involving a representative of the police force and the Children’s Aid Society. Unfortunately, this further investigation did not take place. She indicated to the court that D.S. left the jurisdiction and the issue was not pursued. In his testimony, D.S. has no recollection of revealing this disclosure to the Children’s Aid Society worker.

The elements of sexual assault involve intentional application of force without the consent of the complainant in circumstances of a sexual nature. In a case such as this, consent is not an issue because D.S. was five to ten years of age and under the age of consent. The issue for determination is whether or not the events took place. I accept D.S.’ evidence that sexual activity, oral sex with Mr. Quesnelle took place on a regular basis when he was living at the Quesnelle cottage. Although there was no corroboration of the sexual activity, it was acknowledged that various family members showered together.

L.S. gave evidence that her brother, D.S., did shower with Mr. Quesnelle. As a matter of law, corroboration is not required to ground a conviction for this offence. When I consider the evidence of D.S. now testifying as an adult with respect to events that took place over 20 years ago when he was five or ten years of age, I find that whether the events took place on Saturday or a Sunday would be inconsequential to a child of this age. In addition, I accept the evidence of L.S. that there may have been many times when Mr. Quesnelle was home on Saturday when he was off on disability.

Although D.S. said that his memory was foggy with respect to some incidents that took place and he was not 100 percent sure about some details about the physical abuse he suffered, he showed no such ambiguity with respect to the allegations of sexual assault. I accept his evidence that sexual assaults took place frequently, most weekends over the period when he resided in the Quesnelle cottage when he was five to ten years of age. I do not accept the evidence that he reported three sexual assaults to the Children’s Aid Society when he was a teenager as contradicting his evidence at trial.

There are many reasons why he may have wished to downplay or minimize the abuse when he was speaking as a 13 year old teenager to a female CAS worker. I have already reviewed the legal principles about adults giving evidence about childhood memories. In any event, a full investigation was not conducted so he was not given an opportunity to give his full story. He has now given his full story and I accept it as truthful. In finding that D.S.’ evidence was both credible and reliable, I have considered his life experience including the tumultuous years when he was five to ten years of age and living with Mr.

Quesnelle, his subsequent alcohol addiction, his criminal record and his facing up to these addictions in 2009 when he became sober and took positive steps to turn his life around. When considering a complainant’s criminal

record, I ask myself this. If a child is sexually abused during his formative years and later turns to alcohol as a teenager and is involved in the criminal justice system as a youth and an adult, is he less worthy of belief? In all the circumstances here, in my view, the answer is no. He admitted his record, indicated alcohol was a factor and took responsibility for his actions by pleading guilty on each occasion. The evidence of D.S. that Mr. Quesnelle required oral sex establishes the third element of the offence; that the events took place in circumstances of a sexual nature.

I, therefore, record a verdict of guilty with respect to count five. Count 4 Count four alleges that Louis Quesnelle touched D.S. for a sexual purpose with a part of his body, contrary to the Criminal Code of Canada . Clearly, during the time period in question, D.S. was under the age of 14 years and was residing at the cottage of Louis Quesnelle with his mother and sister. I apply the same analysis as in count five to the elements of this count. Further, I accept that Louis Quesnelle touched D.S. with his penis by placing his penis in D.S.’ mouth on a regular basis for a sexual purpose while showering with D.S..

I, therefore, record a verdict of guilty with respect to this count. Count 6 Count six alleged that Louis Quesnelle, while being in a position of trust towards D.S., a young person, touched directly the body of D.S. for a sexual purpose. I have no hesitation in finding that Mr. Quesnelle was in a position of trust towards D.S.. He was regarded as a stepfather by D.S. and by L.S.. He was a common-law spouse of their mother, S.S.. For five years, they resided in his cottage and he ruled over the family with considerable authority using, at the very least, a considerable amount of verbal abuse to maintain order.

He meted out punishment to the children as he saw fit. While in a position of trust, he placed his penis in D.S.’ mouth while showering with D.S. on a regular basis for a sexual purpose. I have no hesitation finding that the Crown has proved all the essential elements of this offence beyond a reasonable doubt. I, therefore, record a verdict of guilty with respect to count six. Counsel, I will just summarize the counts for the benefit of Crown and defence.

Count number one, the frog incident, guilty; count number two, beating by the sister, not guilty; count number three, shooting over the head of D.S., guilty; count four, sexual touching of D.S., guilty; count five, sexual assault of D.S., guilty; count six, touching by a person in a position of trust, guilty; count seven, sexual assault with a weapon on S.S., not guilty; count eight, sexual assault of S.S., not guilty; count nine, assault of S.S., not guilty; count ten, uttering a threat to S.S., not guilty. ...DISCUSSION CONCERNING SCHEDULING. **********

FORM 2 Certificate of Transcript Evidence Act , Subsection 5(2) I, Lori Moloney, certify that this document is a true and accurate transcript of the recording of R. v. Louis Quesnelle in the Superior Court of Justice held at 470 Water Street, Peterborough, Ontario taken from Recording No. 3311-1-064-2013, on July 4, 2013, which has been certified in Form 1. December 17, 2013 ___________________________ Lori Moloney, Court Reporter. Signature of Authorized Person TRANSCRIPT ORDERED: .............November 21, 2013 TRANSCRIPT COMPLETED: .......... December 17, 2013 ORDERING PARTY NOTIFIED: ........December 17, 2013