COURT OF APPEAL FOR ONTARIO
Sossin, Copeland and Gomery JJ.A.
BETWEEN
His Majesty the King
Respondent
and
David Bozzato
Appellant
Jocelyn Rempel, for the appellant
Stephanie Pak, for the respondent
Heard: November 20, 2025
On appeal from the conviction entered by Justice Kathryn A. Fillier of the Ontario Court of Justice on July 29, 2024.
REASONS FOR DECISION
1The appellant appeals his convictions for sexual assault, sexual interference, and making sexually explicit material available to a person under the age of 16 for the purpose of facilitating the commission of an offence. At the close of the hearing, we dismissed this appeal for reasons to follow. These are our reasons.
A. background
2In late September 2022, the appellant went to visit his friend, L.A., the complainant J.A.’s father, for a weekend. From Friday night to Sunday night, he stayed in J.A.’s bedroom, sleeping on an air mattress on the floor. J.A. was nine years old at the time of the offences and 11 years old at the time of the trial.
3Two months after the appellant’s visit, while the family was eating at their dinner table, J.A.’s mother testified that J.A.’s brother had ketchup on his face, and that J.A. remarked: “oh, that looks like C-U-M”. N.A.’s recollection was that J.A. had spelled the word “cum”. N.A. testified that she was shocked. When asked where J.A. had learned such a word, J.A. explained that he “was talking to Dave”, meaning the appellant, “about puberty, and then it somehow turned into Dave showing him porn, and then touching him and telling him about Mr. Happy”, meaning J.A.’s penis.
4J.A. gave a statement to police on December 5, 2022. Pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46, this statement formed a significant part of J.A.’s evidence-in-chief at trial. In his statement, J.A. said that on Friday night, the appellant showed him a video on the pornographic website Pornhub. J.A. also said that he learned about “C-U-M” from the appellant. He then explained to the officer that the appellant lifted the tight part of his pants and used one of his fingers to rub the bottom of the long part of J.A.’s “privates” (meaning his penis) underneath his clothing.
5It is uncontradicted that, during the appellant’s September 2022 visit, he stayed in J.A.’s room two further nights without incident, that J.A. was sad when the appellant had to leave on Monday, and that J.A. texted the appellant several times after the assault.
6In his video statement, J.A. told police that the touching made him feel “not okay” when it was happening. On cross-examination, however, J.A. stated that he thought the touching was okay because the appellant was a “close family friend”. In re-examination, J.A. clarified that he “knew it was wrong, but … didn’t at the same time.” J.A. further testified that he was happy with the appellant for the rest of the trip but unhappy now because he realized how “bad” the appellant’s conduct was and that it was “very wrong for him” to have touched J.A.
7The appellant offered a very different version of events. He testified that he knew from L.A. that L.A. and N.A. had an “open” internet policy for their children, where J.A. and his siblings could view whatever they wished online, but were encouraged to “ask questions”. This contradicted N.A.’s testimony. She said that the children were subject to stringent restrictions on what they could view on the internet, and this was reflected in J.A.’s device settings.
8The appellant further testified that, when he went to bed on Saturday evening, J.A. showed him a number of short videos, some of which were borderline pornographic. In one, a woman had yogurt on her chin, and J.A. remarked “is that supposed to be cum?” It was the appellant’s contention that J.A. was already familiar with the word. The appellant testified that he brought up the content of these videos with N.A. and L.A., but L.A. merely reiterated their policy.
B. Decision Below
9The trial judge began by setting out the principles according to which she assessed the appellant, J.A., and N.A.’s evidence. She recognized that credibility and reliability were the key issues in this case, and accordingly applied the framework from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 to assess J.A. and the appellant’s conflicting testimony. She also recognized that the existence or absence of a motive to fabricate is a relevant factor that must be considered in assessing each witness’s evidence, and that the absence of evidence going to a motive to fabricate is not proof that a witness has been truthful. Finally, she recognized that children and adolescents have different capacities than adults when observing, understanding, recalling, and communicating prior events or experiences, and that J.A.’s evidence must be assessed in light of this.
10The trial judge accepted J.A.’s evidence that the appellant showed him pornography, touched him in the manner J.A. described, and told him what “C-U-M” was. In doing so, she found J.A. to be a compelling witness who remained unshaken in cross-examination. J.A. conceded points where he was mistaken or uncertain, but never wavered that he had been shown pornography and touched by the appellant. In particular, the trial judge remarked that J.A.’s graphic depiction of the pornography he was shown was not something that a young child was likely to be able to concoct in their imagination. The trial judge was also alive to weaknesses in J.A.’s evidence; in particular, he was unsure precisely how the appellant was positioned when he assaulted J.A., and he equivocated about whether the door to his bedroom was open or closed during the assault. However, she noted that this testimony related to peripheral rather than central issues.
11Defence counsel suggested numerous additional “frailties” in J.A.’s evidence. The trial judge rejected each of these in turn. With respect to J.A.’s “wavering expression” of how he felt towards the appellant after the incident, the trial judge found that J.A.’s testimony illustrated the confusion experienced by a young child victimized by an adult whom he admired and trusted, not a witness being untruthful. With respect to defence counsel’s concerns about J.A.’s “lack of memory”, the trial judge found that the totality of his evidence revealed a “rather good memory”.
12The trial judge also rejected defence counsel’s submission that there was advertent or inadvertent collusion between J.A. and N.A., noting that there were several key differences in their accounts. In particular, the trial judge noted that N.A. testified that all of her children had slept in J.A.’s room during the night of the assault, which was contradicted by J.A. Further, it was revealed at trial that J.A. did not relay anything about “Mr. Happy” to police.
13Finally, defence counsel raised the possibility of fabrication, based in part on an incident when J.A. was four or five years old and made up an account about his mother being pushed down some stairs by L.A. The trial judge noted that she had to take this evidence seriously because if she believed that J.A. was inclined to fabricate allegations of criminal conduct, it certainly would have a significant negative impact on his credibility. However, she found that this incident did not reflect negatively on J.A. because he was considerably younger and less mature at the time. Further, the trial judge accepted J.A.’s testimony that this past fabrication was the result of a realistic dream he had, rather than an intentionally concocted falsehood. In the case before her, she was not concerned that J.A. had any trouble distinguishing between a dream and reality.
14The trial judge rejected the appellant’s evidence. She observed that the appellant went to great lengths to provide evidence designed to explain how and where J.A. would have accessed the type of pornographic material described. The trial judge found this aspect of the appellant’s testimony completely incredible. Ultimately, the trial judge found that the appellant fabricated evidence to provide an alternative explanation for J.A.’s disclosure. This fabrication was fatal to his credibility.
15With respect to N.A., the trial judge only relied on her evidence that the family had strict parental controls regarding what J.A. could access online, and that N.A. was “shocked” at J.A.’s reference to “C-U-M” at the dinner table.
16The trial judge stated that neither her rejection of the appellant’s evidence, nor her finding that his evidence included elements of wilful fabrication, led “inexorably” to a finding of guilt. She recognized, pursuant to W.(D.), that she also had to consider whether the totality of the evidence she accepted, including J.A.’s evidence and minor portions of N.A.’s evidence, satisfied her of the appellant’s guilt beyond a reasonable doubt. In the circumstances, she was so satisfied and convicted the appellant of all charges.
C. Issues on Appeal
17The appellant raises three grounds of appeal. He contends that:
(1) The trial judge materially misapprehended evidence about J.A.’s reliability by:
(a) inaccurately recounting J.A.’s evidence on a material inconsistency, which involved an admission of lying; and
(b) finding that he had a “rather good memory”, which was unsupported on the record given the complainant’s admitted memory issues, numerous testimonial inconsistencies, and critical new details remembered only at trial.
(2) The trial judge failed to provide any reasons rejecting the appellant’s argument that J.A. had a motive to fabricate the alleged touching to not get in trouble with his parents for viewing inappropriate online material; and
(3) The trial judge failed to explain why she relied on some of N.A.’s evidence to reject the appellant’s evidence, despite shortcomings with N.A.’s evidence conceded by the Crown at trial.
D. analysis
18The trial judge’s credibility and reliability assessments are entitled to deference, absent an error of law, unless the appellant can show a palpable and overriding error: R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, at paras. 82-91.
19With respect to the first ground of appeal, we reject the appellant’s assertion that the trial judge materially misapprehended evidence in accepting J.A.’s testimony. In recounting J.A.’s evidence as to whether he knew the alleged touching by the appellant was wrong, the trial judge acknowledged that J.A.’s evidence shifted between his initial police report and his evidence at trial. However, the trial judge misattributed one statement by the complainant—that the touching was okay because the appellant was a “close family friend”—to his police statement at two points in her reasons. As noted above, this statement in fact came out during J.A.’s cross-examination.
20This misattribution was not material to the central issue before the trial judge, which related to whether J.A.’s evidence was believable. Thus, it cannot constitute a material misapprehension of evidence: see R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56. In this case, the trial judge addressed why she found J.A. credible, finding that J.A.’s conflicting evidence reflected the “confusion” of a “young child who was violated by an adult whom he admired and trusted, as opposed to a witness being untruthful.” We see no reviewable error in this conclusion.
21We also see no error in the trial judge’s reference to J.A. having a “rather good memory”, notwithstanding several aspects of the night in question which J.A. could not recall or recalled in different ways at different times (such as whether the bedroom door was open or closed or whether the appellant was on his back or side at the time of the touching). The trial judge explained:
[J.A.’s] statements of, “I can’t really remember,” were often followed up by detailed answers about the very topic he was initially asked about. It almost seemed to me as if he would have preferred not to remember, but knew he needed to relay the information he had. For example, in his statement he was asked whether “Dave touched his privates,” and he initially said, “I can’t really remember.” However, he then went on to give specific details about Dave rubbing his privates with one finger without any leading on the part of the officer. Of course, there were some times that he genuinely couldn’t remember, but I find those to have been minor or peripheral details that did not undermine the core of his testimony.
22This assessment was open to the trial judge and was based on her findings as to which aspects of J.A.’s testimony were core or peripheral to his evidence. These findings, including that where the appellant was positioned and whether J.A.’s bedroom door was open were peripheral details, also are entitled to deference.
23The appellant argues that the trial judge rejected, without explanation, his theory that J.A. fabricated the allegations to get out of trouble for his dinner table “joke” (as the appellant characterizes it), and for accessing videos with sexual themes. As set out above, the trial judge accepted the complainant was a credible and reliable witness. She accepted J.A.’s testimony that he did not access videos with “sexual themes,” except for one accidental viewing three years prior, which was disclosed to his parents and met with understanding rather than punishment. Further, the trial judge reasoned that J.A.’s alleged motive to fabricate to avoid getting in trouble for viewing sexual content was inconsistent with his testimony that J.A.’s parents had an “open” internet policy. In these circumstances, the trial judge’s basis for rejecting the appellant’s fabrication argument was clear. It discloses no error warranting appellate intervention.
24Finally, the appellant asserts that N.A.’s evidence should not have been relied upon. It is well accepted that the trial judge was entitled to accept some, none, or all of N.A.’s evidence. She was not bound to accept the Crown’s position with respect to N.A.’s evidence, which she accepted only on the two points discussed above. We see no basis for appellate interference in the trial judge’s limited reference to N.A.’s testimony.
25For these reasons, we dismissed the appeal.
“L. Sossin J.A.”
“J. Copeland J.A.”
“S. Gomery J.A.”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.