Toronto Criminal Lawyer

Gross Indecency — Toronto Sexual Assault Lawyer

Client:  P.R., Accused
Complainants:  two men he knew as young teens
Charges:  indecent assault and gross indecency

The Queen v. P.R.
Ontario Court of Justice, Toronto
Judge Bigelow
(acquitted: 25 June 2015)

Crown:  P. Scrutton, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1  THE COURT:  Mr. P.R. is charged in Information sworn the 6th March 2015 alleging that:

I. between the 1st day of January 1970 and the 31st day of December 1972 inclusive at the city of Toronto in the said region did commit an indecent assault upon VM contrary to section 148 of the Criminal Code of Canada; and further

II. between the 1st day of January 1970 and the 31st day of December 1973, inclusive, did commit an indecent assault upon NM contrary to section 148 of the Criminal Code of Canada; and further

III. between the 1st day of January 1970 and the 31st day of December 1973, inclusive, at the city of Toronto in the said region did commit gross indecency upon NM Contrary to section 149 of the Criminal Code of Canada.

¶ 2   During the time period covered by the allegations both the offence of Indecent Assault on a Male contrary to section 148 of the Criminal Code and Gross Indecency contrary to section 149 of the Criminal Code were indictable offences. The accused has elected trial before the Ontario Court of Justice and the matter proceeded before me.

¶ 3  The Evidence: Counsel helpfully provided the court with an agreed statement of fact with respect to the background of the accused and various places where he resided during the periods when it is alleged that the offences occurred.

¶ 4  In brief, the relevant agreed facts were that P.R. is the person that "the complainants will testify that they knew during the material period", that he was born on June 4, 19**, that he was employed by the Toronto Metropolitan Police from August 1966 until July 1970 and that during his employment he was assigned to the division which policed the geographic area where the complainants resided with their parents. It was also agreed that P.R. moved into a basement apartment located in southern Etobicoke in 1969 and resided there until October 1972 when he moved to a house located in the area of the Queensway and the Humber River in the city of Toronto where he still resides.

¶ 5  The Complainant VM: VM who is currently 58 years of age stated that he grew up in a family home in the Bloor/Dundas West area of Toronto with his younger brother, sister and parents. He remembers meeting P.R. who was at the time a police officer patrolling in his neighbourhood in the summer when he and some other kids were in a park and started a fire which resulted in neighbours calling the police. He ran and hid but Constable P.R. found him. He may have met P.R. a few times before that. He was between 13 and 15 years of age when he met him.

¶ 6  He recalled that P.R. developed a positive relationship with his father and would take him and his brother on outings on occasion. He recalled in particular one night when he and his brother were invited to listen to a taped version of Orson Welles' War of the Worlds and spend the night at P.R.'s residence which was a basement apartment in South Etobicoke. His brother slept on a couch and he slept in a bed along with P.R. He recalled waking up in the night and feeling someone kissing his shoulder and the scratch of a five o'clock shadow. He was then penetrated from behind by P.R. who ejaculated inside him. He could feel that P.R. was uncircumcised. He pretended to be asleep during the assault. He later got up to urinate and noted semen dripping from his anus.

¶ 7  He stated that the next morning:  ...when I woke up, I went to do your usual you know when I had a bowel movement and that's when the bowel movement came out and that's when I ended up with a fresh memory of what had happened the night before ...

¶ 8  However, he said nothing to anyone about what had occurred during the night.

¶ 9  VM also remembered some time later going on a camping trip with P.R. and his brother where his recollection is that they slept in two tents. He slept in a tent alone while P.R. slept in a tent with his brother. He recalls that P.R. taught him and his brother how to shoot a rifle. During his description of that trip the following exchange took place:

Q: Okay and did anything happen that evening that you remember?

Geez — not with me, I think it was with my brother. I think he slept with my brother.

Q: You don't recall any sexual contact between you and P.R. that evening?

A: Not that evening, but I kind of remember something during the daytime where he went down on me.

Q: Okay why don't you tell me about that sir?

A: Other than that it happened, there wasn't much to say. I mean it was in the tent, it wasn't outside and it was during the daytime because I can remember it being bright.

Q: Do you remember kind of how it came about that you guys are in the tent or how the — when you say going down on me, you're referring to oral sex?

A: Yes.

Q: How that would have begun?

A: Not sure

Q: Okay.

¶ 10  After the incident in the basement apartment VM attempted to avoid having contact with P.R. but was unable to completely avoid him because of the relationship between P.R. and his father and his father's encouragement of the contact.

¶ 11  However, he does recall receiving driving lessons from P.R. after the camping trip so that he could get a job as a driver for his uncle's bakery company. He also recalls that at some point P.R. ceased his employment with the Toronto police and began working for a security company. He went on his rounds with him and going to a gum factory where he strongly recalls the odour of spearmint. He also recalled an incident where P.R. took him to a "gay bar" in the Yonge and College area and remembers "guys on stage acting out".

¶ 12  The last time he remembers seeing P.R. in the 70s was "when he moved to a new house and I remember seeing the house, one portion of the house, because that's when I learned what the colour mauve was". He only attended at that residence on one occasion and never spent the night there.

¶ 13  The next time he remembers seeing P.R. is in the 80s in the year that when Italy won the World Cup when he dropped by a bar where he knew the bartender and:

"P.R. was sitting at the bar. I don't recall speaking to him. I do remember though leaving really quite shortly. I don't even think I had a beer while I was there and went to another bar next door where I knew a bunch of people."

¶ 14  In cross-examination VM confirmed that at the time he provided a videotaped statement to the police in April 2014 his only recollection of sexual contact with P.R. was that which occurred in the basement apartment. In response to a question about that statement he indicated:

"At the time I had believed that he hadn't touched me again, but as time went on and as memory, more memory surfaced I remembered the incident at the tent, in the tent. ... I was remembering how we were there and trying to remember whether he was going for myself or my brother or what his — other than having us out there, right and it just popped back into my head, is the best way I can put it."

¶ 15  In cross-examination VM also confirmed that when he 1st advised the police of incident in the tent he told them that it occurred at night while he was sleeping in a tent with P.R.

¶ 16  The Complainant NM: NM is VM's Younger brother and is currently 56 years of age. He also recalled 1st meeting P.R. when he was a police officer patrolling in their neighbourhood. Over time he built up a relationship with NM's father gaining sufficient trust to allow the boys to go places with him. Specifically he recalls being taken to empty quarries where they would set up balloons and he would teach them how to shoot. He recalls two places where P.R. lived that he visited. The 1st was a basement apartment and the second was a house on Street. When asked how old he was when he was spending time with P.R., he indicated that he was between 11 and 13 and that he had spoken to his brother about his brother's age and then estimated his own age from that.

¶ 17  He recalled spending one night at the basement apartment where P.R. played War of the Worlds. Nothing else sticks out in his memory from that evening. He also stated that he recalled camping with P.R. and his brother and that "something happened when I was camping, but I can't — I don't remember what it was because all I can see is shadows." Although he does not remember speaking to his brother about camping he agreed in cross-examination that his 1st mention of camping to the police was 6 days after giving a videotaped statement some 3 hours after his brother had also told the police about camping.

¶ 18  He also recalled being at P.R.'s house on what he believes may have been a Canada Day because P.R. fired a small cannon behind the house. He believes that he ended up spending the night at the residence. He may have spent the night there on other occasions but recalls on one night he was in a bed with P.R. and he remembers them touching each other and having his penis in P.R.'s mouth and P.R. attempting to have anal sex with him. He also has a "recent memory" of P.R. "posing" him at the end of the bed.

¶ 19  When asked whether he consented to the sexual activity which he described, after a significant pause, he responded

"Did I consent? Did I know any better? I just went along no I didn't consent."

¶ 20  He believes that his brother was sleeping in another bedroom when this incident occurred because he never went to P.R.'s residence alone.

¶ 21  His contact with P.R. stopped after that incident. However, he also recalls that at some point in the early 80s he was walking from his place of employment at Yonge and College and P.R. saw him and offered him a ride home. He accepted the ride and during the ride:

"I remember him speaking of what had happened and I remember — I don't know if it was really about what had happened, but there was sort of like he was — when I told him that I had kids and he said something along the lines of it was sort of like I guess penises aren't just for sucking...

"Like he was just asking me what's going on in your life, I asked him what he was doing, I think he said he was working for — at the time I think he said he was working in management for I think it was Intercon Security, he said he had a management position and he asked me what was going on in my life and then the whole — like it came up about gay, being gay and that it wasn't my — I said you know it wasn't my cup of tea."

¶ 22  In cross-examination he indicated that he was quite confident that he could not have been 14 at the time that the sexual contact with P.R. occurred because he was sexually naive at the time of the incident and by the time he was 14 and 15 he was "more sexually aware" actually fathering a child at 15 and indicated that he was 100% sure that the incident took place prior to him turning 14.

¶ 23  However when it was pointed out to him that P.R. in fact did not move into the house where he alleged the incident occurred until after he had turned 14 he stated, "well if the facts say different then it must be different."

¶ 24  The Accused: Mr. P.R. gave evidence and agreed that he spent time with both of the complainant's during the early 70s, took them places and they occasionally spent the night at his residence. However he denied having any sexual contact with either of the complainants. His relationship with the complainant's ended as they got older and developed other interests. His recollection is that he last had contact with the 2 roughly in 1974.

¶ 25  However, he recalled stopping into a pizza place in 1982 and ran into NM who was working behind the counter and after a brief conversation offered him a ride home. On the way home they spoke about NM's family and what he was doing and NM mentioned that he had had a problem with alcoholism and had gone through an expensive treatment program in Buffalo. The accused asked about VM and was given a phone number to contact him. The accused stated that he called VM and they went out for drinks at a bar downtown at Carleton and Yonge. They spoke about meeting again but it never happened.

¶ 26  Position of the Crown: The Crown takes the position that the evidence of both complainants should be accepted and that the evidence of the accused should be rejected. He points to the fact that there is no evidence of any animus against the accused and that neither of the complainants has anything to gain by making the allegations before the court. He also suggests that each of the complainants remembered clearly and distinctly what happened to them and that their prior statements are consistent with the evidence provided to the court.

¶ 27  He submits that when considering the reliability of the complainants' evidence the court should look at what does in fact corroborate the evidence of the complainants and suggests that there are numerous facts which have been agreed to by the accused such as his residing in a basement apartment in the South Etobicoke area, that he had a reel to reel tape player and that he took the boys on shooting trips.

¶ 28  With respect to the accused's evidence although the Crown agrees that he appeared to be forthright and was not significantly shaken in cross-examination, he submits that there are nevertheless problems with his evidence. For example he points to the accused's evidence that he really did not have much of a relationship with the 2 boys stating that he could effectively take or leave them is not reasonable when one looks at the amount of contact that he was having with them. He also suggests that his explanation for the sleepovers because of timing of getting away for a trip or returning from a trip late does not bear scrutiny since the complainant lived quite close to the accused's residence. The Crown also points to the fact that the accused gave very detailed evidence with respect to the complainants' mother attending his 30th birthday party in 1974 when the evidence from VM was that his mother passed away in 1973.

¶ 29  The Crown submits that with, respect to VM, the only live issue before the court is whether or not the incident occurred there being no air of reality to any issue of consent or mistaken belief in consent and the defence takes no issue with this.

¶ 30  With respect to NM the Crown argues that that it is open to the court to accept his evidence that he was under 14 at the time of the incident and therefore not legally capable of consenting and further that in any event lack of consent has been established beyond a reasonable doubt. The Crown further argues that even if the court does not accept the evidence of NM with respect to his age at the time of the incident and the court has a reasonable doubt with respect to consent, the court should nevertheless be satisfied beyond a reasonable doubt that the sexual conduct alleged in all the circumstances makes out the offence of gross indecency.

¶ 31  The Defence: The defence takes no issue with respect to the identification of the accused as the person described by the complainants. The defence also concedes that there is "no principled basis to challenge the honesty of the complainants" but the defence does take issue with respect to reliability of the complainant's evidence and submits as well that the "there is no principled basis to reject" the evidence of the accused.

¶ 32  Mr. Penney submits that there is a significant element of tainting of the evidence of the complainants with respect to matters surrounding the alleged incidents of sexual contact and that the 2 complainants in fact contradict each other with respect to certain matters. He also suggests that some of the evidence of VM is internally inconsistent and varied significantly in the various statements to police and the evidence provided in court.

¶ 33  With respect to the count of gross indecency the defence submits that the offence is only made out if the court finds both that the sexual contact with NM occurred as he describes it and it occurred without his consent.

¶ 34  Law — Relevant Statutory Provisions: At the time when the offences are alleged to have occurred section 148 of the Criminal Code provided:

Every male person who assaults another person with intent to commit buttery or indecently assaults another male person is guilty of an indictable offence and is liable to for 10 years and to be whipped;

¶ 35  Section 149 at the Criminal Code provided:

Everyone who commits an act of gross indecency with a another person is guilty of an indictable offence and is liable to imprisonment for 5 years;

¶ 36  and section 132 of the criminal code provided:

Where an accused is charged with an offence under section 138, 141 or 148 in respect of a person under the age of 14 years, the fact that the person consented to the commission of the offence is not a defence to the charge.

¶ 37  Therefore, if the court finds that the sexual contact as described by the complainants occurred and that it occurred while the complainants were under the age of 14, consent will not be a defence to the charges of indecent assault. However, if the court finds that the sexual contact as described did occur and the complainants were 14 years of age or older, consent would constitute a defence to those charges.

¶ 38  However, although consent is a factor to be considered in determining whether or not the alleged sexual activity did or did not constitute gross indecency, consent is not a defence to the charge.

¶ 39  Law — Similar Fact Evidence: Prior to the commencement of trial the Crown filed an application to have the court consider "the evidence of both of the complainants in relation to the charges that relate to each individual complainant." The parties agreed that the only live issue before the court with respect to the Application was "tainting or collusion (in relation to the extent to which the complainants have spoken about these events and their allegations)".

¶ 40  That application was allowed with brief oral reasons indicating that the only evidence at issue on the application was the actual sexual conduct alleged by each of the complainants. The remainder of their evidence with respect to association with P.R. was clearly admissible. The evidence of both complainants was that they had never discussed the specifics of the sexual contact they had with P.R. The judge's function as a gatekeeper on such an application did not allow me to raise the mere possibility of tainting where it is denied by the witnesses to such a level as to render it inadmissible. However, when making findings of fact the court has a duty to consider the effect of any tainting when assessing what weight to give to the similar fact evidence before the court.

¶ 41  Law — Credibility and Reliablity of Evidence: Mr. Penney does not seriously attack the credibility of the complainants in the sense that he does not suggest that they are in fact deliberately concocting the allegations however, he does submit that the court should have significant concerns with respect to the reliability of the complainant's evidence.

¶ 42  As stated by Justice Finlayson in the R. v Norman:

The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount.

¶ 43  Our Court of Appeal has recently given assistance to trial judges in considering the credibility and reliability of adults giving evidence about events which occurred when they were children in the case of R. v A.M. where the court stated:

Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W (R.), at p. 134. See also, R. v. Kendall, [1962] S.C.R. 469.

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G (M.), at p. 354.

¶ 44  The Analysis: The two complainants gave evidence as adults with respect to matters which are alleged to have occurred over 40 years ago while they were adolescents as well as events which they indicate occurred over 30 years ago when they were young men. During the time period set out in the information VM was between the ages of 13 and 16 while NM was between the ages of 11 and 15. Therefore as directed by the Court of Appeal I am required to treat their evidence with respect to what occurred to them as adolescents as that of an adult but consider inconsistencies in their evidence with a view to their age at the time of the events they describe as well as the significant lapse in time since the events were alleged to have occurred.

¶ 45  The accused also gave evidence with respect to events which occurred many years ago but at times when he was an adult. In assessing his evidence I am also required to consider the significant lapse in time since the events about which he gave evidence.

¶ 46  It is not surprising that individuals will have gaps in their recall with respect to events which occurred many years prior and that their recall of details of events which may not have seemed particularly important at the time will likely be unclear. However, it is not unreasonable to expect that individuals memories with respect to significant events will likely be more accurate.

¶ 47  The Reliability of VM' s Evidence: I have a number of concerns with respect to the reliability of VM's evidence:

¶ 48  Despite the fact that his evidence was that the assaults by the accused had been haunting him for many years, he had no recollection of the events he asserted took place on the camping trip at the time that he first spoke to police and, in fact, stated to the police that he did not believe there were any other assaults. When he did advise the police of the incident, he stated that it took place at night while he was sleeping in a tent with the accused while in his evidence before the court he indicated that the incident took place during the day and that in fact his brother had slept in a tent with the accused.

¶ 49  His evidence with respect to doing everything possible to avoid contact with the accused after the incident in the basement is contradicted by his evidence with respect to taking driving lessons with the accused, going with the accused on his rounds as a security guard and his evidence with respect to attending a "gay bar'' with the accused. Although some of that contact may be explained by his father encouraging him to spend time with the accused, not all of it can be.

¶ 50  It seems an odd coincidence that he gives evidence that he attended the bar at Yonge and College with the accused when he was a teenager and runs into the accused at a bar in the same area 10 years later.

¶ 51  In describing the morning after the incident in the basement, he stated in his evidence: "... when I woke up, ... That's when I ended up with a fresh memory of what had happened the night before..."

¶ 52  Use of the words "fresh memory" suggests that he had somehow forgotten the traumatic incident which had occurred only hours previously'.

¶ 53  In his statement to the police again referring to the incident in the basement he stated:

"I'm not sure which even happened in which particular chronological order, I spent too much time trying to forget it and even now I don't remember, I can't even say 100% certainty that he did go down on me, but I have senses. I have feelings and I'm very rarely wrong with them and I have the feeling that it did happen, but I can't say for certain so I'm not going to point the finger and say it did happen."

¶ 54  Which indicates that he was unsure with respect to significant portions of the alleged assault.

¶ 55  His recollection of the contact he had with his brother with respect to the matter was significantly flawed and contradicted by his brother. For example his evidence was that he first spoke to his brother about anything to do with the allegations after he had spoken to his family doctor and a therapist just a few weeks prior to speaking to the police while his brother indicated that VM had called him 4 or 5 months earlier and stated that he wished to speak about P.R. He also had no recollection of discussing the camping trip with his brother yet his brother called the police and mentioned the camping trip 3 hours after VM.

¶ 56  The Reliability of NM's Evidence: I also have a number of concerns with respect to the reliability of NM"s evidence:

¶ 57  He was unable to in any way describe the circumstances leading up to the alleged sexual contact with the accused for example as to how he ended up being in a bed with the accused in a residence where there were other bedrooms in one of which, on his evidence, his brother was sleeping.

¶ 58  He also purported to have a "recent memory" of P.R. "posing" him at the end of the bed which he was able to describe in some detail despite having apparently forgotten it for many years although he was unsure if it happened on the same occasion as the other sexual contact he described.

¶ 59  He described himself as being sexually naive at the time of the alleged sexual contact but indicated that he was in fact sexually active at least at 15 years of age when he fathered a child and on his evidence with respect to where the incident occurred and the agreed facts with respect to where the accused resided the incident could only have happened after he had turned 14.

¶ 60  In his statement to the police he indicated:

"... my recollections, it's — and they're very vague. I — to tell you the truth, this is very, like, remembering this shit is hard it's hard for me. My memory... sucks. At the best of time my memory sucks."

¶ 61  And he agreed with those comments in his evidence.

"He stated that he had no recollection of is brother returning from Calgary at all between 1976 and 1986 and therefore likely would not have given the accused his brothers telephone number when they met in the early 80s. However VM indicates that in fact he returned to Toronto for a period of time in 1982 and was working at pizza place with the same name and in the same area as the one where NM indicated that he worked when he saw the accused in a bar in that area."

¶ 62  His evidence with respect to the contact he had with P.R. when he was given a ride home in the 1980s when he would have been in his mid-20s is extremely vague and he is unclear as to whether the conversation was with respect to the incident he alleged occurred or whether P.R. was merely speaking about having come out with respect to his sexual orientation.

¶ 63  NM stated that he never attended P.R.'s house without his brother while his brother's evidence is that he only attended that house on one occasion and never spent a night there.

¶ 64  Effect of the Similar Fact Evidence: In determining the weight to attach to similar fact evidence the trier of fact should consider the similarities and dissimilarities between the facts alleged as well as the impact of any tainting of the evidence through communication between the witnesses.

¶ 65  Although there are similarities between the incidents alleged by the 2 complainants, (both incidents involved sexual contact between an adult male and an adolescent boy, both are alleged to have occurred while the complainant was spending the night at the accused's home and occurred in his bed), there are also differences. The incident alleged by VM to have occurred in the basement apartment did not involve oral sex while the incident alleged by NM to have occurred involved mutual fondling and oral sex. Although NM did state that there was an attempt at anal intercourse, he was unable to provide any particulars with respect to why it in fact did not occur.

¶ 66  With respect to the incident alleged by VM to have occurred on the camping trip, even the Crown indicated that they were not relying on that allegation to support the charges.

¶ 67  Justice Watt in his Manual of Criminal Jury Instructions suggests the following instruction with respect to the impact of any tainting:

[2] You must consider all the circumstances that affect the reliability of the evidence of the witnesses who told you about the offences they say committed on them. Among those circumstances is (any) evidence that the witnesses ... (may have) shared their stories with one another and, as a result, whether accidentally or on purpose, they may have changed or altered their version(s) of what they say happened so that their testimony would be or seem more similar to one another and thus more convincing. The likelihood, even the possibility, that what they told you was tainted (influenced) by collusion or collaboration with others (another) is a factor for you to consider, along with other factors, in deciding whether or to what extent you believe what they said or rely upon it in deciding this case.

[3] There is evidence from which you could but do not have to find that ... witnesses ... had some discussion, as well as some opportunities to talk to one another about the events of which each testified.

[4] If you conclude, after considering all the evidence, that the similarity of (specify)'s testimony is the result of tainting, collusion, or collaboration with (specify), you must not use the evidence of one to decide or to help you decide whether Crown counsel has proven the case with respect to the other(s) beyond a reasonable doubt.

[5] Even if you do not conclude that the similarity in the testimony of (specify) and (specify) is not the result of tainting, collusion, or collaboration, consider whether the evidence of (specify) is reliable despite the opportunity for tainting, collusion, or collaboration and whether you should rely on it less or not at all in deciding the use because it may not be independent. It is for you to say.

¶ 68  There is evidence before me that the complainants' had communication with each other with respect to their relationship with the accused both prior to and after their initial statements to the police. There is also evidence that the recollections of both of the complainants with respect to the contents of those communications are not only extremely vague but in fact inaccurate. This in my view significantly reduces the weight to be attached to the similar fact evidence.

¶ 69  Defence Evidence: As indicated above Crown concedes that P.R. appeared to give his evidence in a forthright manner and was not significantly shaken in cross-examination. However, he suggests that I should nevertheless reject his evidence. He suggests that there was little reason for the accused to have associated with the complainants in the way that he described other than as part of a grooming process leading to sexual assaults. He also points to the apparent conflict between the accused's evidence that complainant's mother attended his 30th birthday party in 1974 when VM stated that the event did not occur and that in fact his mother had passed away in 1973.

¶ 70  Although I agree that one possible interpretation of the relationship which developed between the accused and the two complainants could be a grooming process, that is not the only reasonable interpretation. As far as the contradiction between accused's evidence and that of VM as to when the complainants mother died, in my view it is entirely possible, given the gaps in his memory with respect to many other events from that time, that VM is mistaken as to the year that his mother died and there does not seem to be any reason why the accused would have invented the birthday party.

¶ 71  It is also noteworthy that the accused in his evidence in many ways assisted the Crown's case by indicating that he spent at least as much time with the complainants as they indicated.

¶ 72  Ruling: On the whole of the evidence taking into account my concerns with respect to the reliability of complainants' evidence of events alleged to have occurred over 40 years ago and the defence evidence which I find I am unable to reject I am not satisfied that the Crown has established the commission of the offences alleged beyond a reasonable doubt. Having made that finding, it is unnecessary to consider the issue as to whether or not the sexual contact alleged by NM would have constituted the offence of gross indecency. The charges are dismissed.

¶ 73  In the result, the defendant is acquitted of all of the charges before the court.