Warning and Legal Notices
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-07-24
COURT FILE No.: Hamilton 23 Y4710482
BETWEEN:
His Majesty the King
— AND —
R.N., a young person
Before Justice J.P.P. Fiorucci
Heard on February 27 and 28, 2025
Reasons for Judgment released on July 24, 2025
Michael Larrett — counsel for the Crown
Geneviève Eliany — counsel for the accused R.N., a young person
FIORUCCI J.:
Overview
1The accused, R.N., is charged with committing acts of gross indecency with the complainant, L.A.P., and with sexually assaulting her. These sexual offences are alleged to have occurred on or between April 2, 1984 and December 31, 1987. In that period, the complainant was between 10 and 14 years old. The accused was between 14 and 17 years old and is, therefore, charged as a young offender under the Young Offenders Act.
2The accused entered not guilty pleas to the offences. The complainant and the accused were the only witnesses at the trial. When they gave their evidence at the trial, the complainant was 51 years of age, and the accused was 54 years old.
3The complainant testified about sexual touching that occurred in her family’s home in Hamilton. She says that the accused was living with her family in the home when he committed the offences. He would come into her bedroom and touch her breasts and vagina.
4The accused testified that he never lived in the same home as the complainant and her family, and he denied any sexual touching. These reasons explain why I am left in a state of reasonable doubt regarding the accused’s guilt and must, therefore, find him not guilty of the charges.
Legal Principles
The Crown’s Burden of Proof
5The accused is presumed innocent, and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
6In this case, the accused testified. His evidence was exculpatory. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused’s evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused’s evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
7I must determine whether the Crown has proven the specific criminal allegation it has made beyond a reasonable doubt. Even if I do not accept the accused’s exculpatory testimony, his evidence — viewed in the context of all of the evidence — may leave me in a state of reasonable doubt about his guilt. If it does, he is entitled to an acquittal.
8The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation. The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at p. 47. I can accept all, some, or none of a witness’s evidence. R. v. H.(S.M.), 2011 ONCA 215, at para. 8.
9A criminal trial is not a "credibility contest". Even if I were to prefer the complainant's narrative to the one offered by the accused, it does not resolve whether I have a reasonable doubt about the accused's guilt. There are other options requiring acquittal, including "the legitimate possibility" that I am unable to resolve the conflicting evidence and am accordingly left in a reasonable doubt. R. v. Challice, at para. 38.
10It is not my task as the trier of fact to determine which of two versions of an event is true. R. v. T.A., 2020 ONCA 783, at para. 28. Rather my task is to assess the accused’s evidence in the context of the evidence as a whole to determine whether the Crown has met its burden of proving the elements of the offence beyond a reasonable doubt.
11As the Ontario Court of Appeal recently stated in R. v. T.A., “[a] finding that a complainant is both reliable and credible is not sufficient to satisfy the burden of proof beyond a reasonable doubt”. In T.A., the Court of Appeal reiterated its finding in R. v. J.W. that “a reasonable doubt can survive a finding that the complainant is credible”.
The Distinction between Credibility and Reliability
12There is a distinction between the credibility of a witness and the reliability of the witness’s testimony. Credibility problems relate to a witness who “is intentionally offering, in whole or in part, entirely false, exaggerated, or minimized information”. Credibility “addresses whether the witness is lying,” while problems with the reliability of evidence relate to an honest witness who “is inadvertently offering inaccurate information.” The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at p. 58.
13In R. v. Morrissey, Justice Doherty writing for the Ontario Court of Appeal described the distinction between credibility and reliability:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable.
The Use of Demeanour to Assess Credibility
14In R. v. D.P., the Ontario Court of Appeal stated that a witness’s demeanour is an appropriate consideration when assessing credibility. However, in R. v. A.S., the Court noted that a trier of fact must not overemphasize demeanour and is not permitted to accept a complainant’s evidence uncritically based on her demeanour alone.
15In R. v. Reimer, Justice Paciocco, writing for the Ontario Court of Appeal, provided the following guidance regarding demeanour evidence:
Before I leave this issue, even though demeanour is a permissible consideration, I would reiterate the caution that judges should take in considering demeanour in judging credibility: R. v. E.H., 2020 ONCA 405, 389 C.C.C. (3d) 380, at para. 91; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89. In my view, this is particularly important with emotional upset while testifying, given that emotional presentation can vary with maturity, culture, personality, neurodivergence, or even mental health. A judge is apt to lack a baseline for evaluation as well. In my view, judges should be extremely cautious about relying on emotional upset as an indicium of truthfulness.
Assessing the Evidence of Adults who Testify to Abuse That Occurred in Childhood
16In R. v. W.(R.), Justice McLachlin (as she then was), writing for the Supreme Court of Canada, spoke of how to assess the evidence of adult witnesses who testify to historical childhood abuse:
... Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. 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 such as 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.
Summary of the Alleged Sexual Abuse
17The accused’s father and the complainant’s mother were in a relationship. They had a daughter together, who is a half-sibling/sister to both the accused and the complainant. Eventually the accused’s father and the complainant’s mother separated.
18The complainant spoke of how she moved with her mother, two sisters and brother to Ontario from British Columbia in the early 1980’s. She could not recall where in Ontario the family lived first but said that they eventually moved to North York and then to Hamilton.
19Crown counsel asked the complainant when it was that she first met the accused. She responded, “[w]hen we originally arrived here from BC in a small apartment that I honestly could not tell you where that apartment building, I don’t know what city it was, I just know we were here in Ontario”. She stated that she met the accused at the end of her mother’s relationship with the accused’s father, and that the end of the relationship began in Vancouver, British Columbia. The complainant then said that she met the accused when they had only lived in Ontario in an apartment “not even a couple weeks”.
20The complainant testified that the family lived in different places throughout the time frame of the charges, April 2, 1984 to December 31, 1987. At one point, she said that the family arrived in Hamilton in about 1983 or 1984 but then said she believed they were still in North York on April 2, 1984. Ultimately, the complainant acknowledged that she could not specifically recall when the family moved to Hamilton.
21The home in Hamilton was a three-bedroom townhouse. The complainant had a room upstairs. Her mother, two sisters, brother, and foster brother also lived in the home. Her foster brother made a bedroom in the basement.
22The complainant said that when the family moved to Hamilton, the accused came to stay with them “for a bit of time”. She testified as follows about the accused living with her family:
I can’t be specific as to how long he was there, I know it wasn’t for very long, but there was a presence of him in the house.
When we first moved in, I do believe [the accused] stayed in the basement for a little bit of time, but like I said, he didn’t – he didn’t stick around for very long in Hamilton.
23The complainant maintained that the accused was staying with the family when they first moved into the Hamilton home. The complainant testified that the accused’s father never lived with them in Hamilton because he and her mother were separated. She described the general environment of the home in Hamilton as “like a hell house” with “a lot of drugs and crime and physical violence”.
24The complainant testified about incidents of sexual touching that occurred when the accused was staying with the family in Hamilton. She said, “it’s hard to be specific about the first incident in Hamilton”. She then said:
I know that there was times that he would come up to my room.
And he’d lay beside me in bed. There were times that he would – he would touch my breasts and vaginal area. There was a time that he bought me 100 long-stem red roses with a little pink teddy bear that said I’m not as innocent as I look. He was very persistent on wanting to date me.
25The complainant testified about sexual touching on top of and underneath her clothing:
…there were times that he would come up and lay beside me in my bedroom. When he would lay beside me, he would touch my breasts sometimes on top of my clothes, sometimes underneath them. There was times that he would touch my vaginal area, again sometimes over top of my clothes and sometimes underneath my clothes. I was in my room a lot in Hamilton as I was only allowed out of my room to do particular house chores or tend to kids.
26In the following exchange with Crown counsel, the complainant provided further details about the sexual touching:
Q. And you said that he would lay beside you and you said that he would touch both your breasts as well as your vaginal area. In relation to your breasts, what would he touch you with or use?
A. He would just use his hand and he would trace my breast line with his finger. I don’t know which finger.
Q. And in relation to your breasts, you said he would trace the breast line with his finger, are you talking about occurrences where as you said he touched you over your clothing or under your clothing?
A. At times it was both, sometimes it was over my clothing and sometimes it was under.
Q. So, when you say that, are you meaning that sometimes he would use his finger or what’s your reference to ‘sometimes’ there?
A. Sometimes he would just use his finger to trace over it and sometimes he would just cup his hand.
Q. And the same question, vaginal area; would he touch you with something or – you’ve already mentioned his finger and his hand, what is it that he would touch you with?
A. Just his fingers lightly. Sometimes under the clothing and sometimes on top of the clothing.
Q. … I know it can be really hard content but I need you to do your best to please tell the court what this touching entailed. And I’m going to start you off specifically over the clothing. You said the area, ‘area’ is non-descript; please do your best to try and describe for the court what this over the clothing vaginal area touching was.
A. He would touch the outside of the outer lips and sometimes on top of my underwear, sometimes just underneath it.
Q. When you say ‘sometimes just underneath it,’ can you….
A. He would touch the – he would touch the outer lips and at times he would put his finger inside.
Q. … especially that last point, your commentary about the outer lips or putting his finger inside, are you able to recall or estimate for us, even a number range, how many times this happened during that period you were living in Hamilton?
A. Only once or twice in Hamilton.
27The complainant said that the touching of her breasts, both over and under her clothing happened not more than four times because the accused did not spend “a whole lot of time” at the Hamilton home. The complainant believes that the accused was there not more than a week or two weeks. Of those not more than four times that the accused touched her breasts, the complainant said maybe once or twice was underneath her clothing.
28When asked why she believed the accused was at the Hamilton home only for a week or two, the complainant said, “I just don’t remember seeing him around that often. And things got really bad really fast in that house”. She clarified by saying that it was the living situation in general that got really bad really fast. The accused did not stay at the Hamilton home, or ever spend the night there, after the first two-week period. The complainant has no recollection of the accused coming over to the house after that first two-week period, not even during the day.
29According to the complainant, the incidents of sexual touching would usually happen at night when her mother was “hard in her sleep and not easy to wake” because she took a lot of pills. The complainant would not invite the accused into her room; he would just come in on his own.
30She knew it was the accused and not someone else who was touching her because she would look at him and see him and sometimes, he would talk to her. When the incidents would happen at night, there was always a light on in the bathroom which was directly across from her bedroom. The complainant did not consent to any of the incidents of sexual touching by the accused.
Analysis
31The complainant testified as an adult about abuse that she says happened in her childhood or early adolescence, over forty years ago. I found the complainant to be a credible witness, a witness who spoke the truth as she believed it to be. Defence counsel’s cross-examination of the complainant did little to engage with the core allegations. It focused on tangential issues and failed to undermine the complainant’s credibility in any material way.
32When the complainant testified about her general living conditions in Hamilton, and when she gave evidence about the accused sexually touching her, she was often crying and emotionally upset. At times, the complainant was rocking back and forth or shaking in her chair and having difficulty giving her evidence. Based on my observations of the complainant throughout her testimony, I have no doubt that testifying in court was a difficult experience for her.
33During cross-examination, the complainant agreed that she and her family moved to Ontario from British Columbia when she was 10 or 11 years old, sometime between 1983 and 1985. She also maintained that she met the accused after the relationship between his father and her mother had ended. She agreed with defence counsel’s suggestion that this relationship ended in the late 1980’s.
34Defence counsel pointed out to the complainant that the accused could not have lived with her family in North York sometime between 1983 and 1985, as she claimed, because she did not meet him until the late 1980’s. When confronted with this inconsistency in her evidence, the complainant was adamant that the accused lived with her family in North York and described his room in the basement of the North York home. The complainant attributed the inconsistency to the trauma she had experienced by saying, “I get the years and the dates confused due to my traumas and I blocked – I have blocked a lot of things out”.
35When defence counsel pressed the complainant on this issue, the complainant steadfastly maintained that the accused had lived with her family in North York. When asked again whether it would make sense that she had only met the accused in the late 1980’s in Hamilton, the complainant replied, “[l]ike I said, I can’t recall exactly what year, as there was a lot going on in my family dynamics”. The complainant also maintained during cross-examination that the accused had lived with her family in Hamilton and denied defence counsel’s suggestion that he had never slept at the Hamilton home.
36A primary focus of the defence was the date range within which the offences were alleged to have occurred. Defence counsel asserted in closing submissions that the accused had an alibi because the offences were alleged to have been committed between April 2, 1984 and December 31, 1987, and the accused produced correspondence from the Catholic Children’s Aid Society of Hamilton confirming that he was placed in foster care from December 1, 1984 until he left the placement voluntarily and without permission on May 2, 1986.
37The Ontario Court of Appeal explained the alibi defence as follows:
An alibi defence is a defence that says that the accused was elsewhere when the crime took place. If accepted, or if it raises a reasonable doubt, an alibi is determinative of the accused’s innocence. See R. v. Hill (1995), 25 O.R. (3d) 97 (Ont. C.A.).
38Even if the complainant was able to say with certainty that the sexual touching occurred in the time frame outlined in the charging information, it cannot be said that the accused’s placement in foster care for a portion of that time frame provides him with an alibi defence. At best, it might diminish the accused’s opportunity to commit the offences at certain points within that time frame.
39The complainant’s testimony demonstrated that she was uncertain about dates. She could not say for certain where the family was living on April 2, 1984, although she thinks they were living in North York. She could not say for certain when the family moved to Hamilton but said that it would have been about 1983 or 1984. She agreed that the relationship between the accused’s father and her mother ended in the late 1980’s and that she met the accused after this relationship ended but then admitted that she gets the years and dates confused, which she attributed to the traumas she has experienced.
40The defence strategy was to undermine the reliability of the complainant’s claim that she had met the accused in the mid-1980’s when she moved to Ontario with her family, suggesting to the complainant instead that she met him in the late 1980’s. However, in cross-examination, defence counsel confronted the complainant about her participation in the making of a false complaint of assault involving the accused “in around 1985”. The complainant agreed with defence counsel’s suggestion. She explained that the accused’s father and her mother knew that they could receive funding for “victim assistance” because of something that had occurred in B.C. with the complainant’s sister. Therefore, they made the complainant falsely claim that she had been assaulted so that they would receive compensation. According to the complainant, the accused also participated in this false complaint by giving her bruises to corroborate that she had been assaulted. The complainant said that this false complaint involving the accused happened in North York. Therefore, through questioning by defence counsel, testimony was elicited from the complainant that seemingly supports her position that she had already met the accused when the family lived in North York, in around 1985.
41The complainant’s admission that she made a false complaint of assault when she was about 12 or 13 years old, at the urging of her mother and the accused’s father, does not diminish her credibility as a witness. This is especially so considering the chaotic upbringing the complainant described, which included a lot of drug use by her mother and physical violence within her home. The complainant testified in-chief that her chaotic home environment in Hamilton at times included her being forced into committing crime. If the complainant made the false complaint in North York, she did so when she was residing with her mother and the same family members who moved with her to the home in Hamilton, a home she characterized as “like a hell house”. It is reasonable to infer that similarly chaotic conditions existed in North York. In these circumstances, being a party to a false complaint orchestrated by adults, in early adolescence, does not raise any issue of concern regarding the complainant’s credibility.
42The complainant’s difficulty with dates is likely attributable to the fact that she was testifying about events that occurred over forty years ago when she was a child or an adolescent. The fact that the complainant was unable to recall dates with precision does not necessarily affect the credibility or reliability of her evidence that the accused sexually touched her, which is the core of her complaint. The complainant’s testimony about the accused touching her breasts and vagina in her bedroom in Hamilton was left unchallenged on cross-examination.
43Defence counsel did not ask the complainant any specific questions directed at undermining her testimony regarding the acts of sexual touching that she says occurred in the approximately two-week period in Hamilton. Again, defence counsel chose instead to focus primarily on the dates of certain events, and other peripheral matters including to whom the complainant may have spoken about the sexual abuse. The areas explored in cross-examination did not serve to diminish the complainant’s testimonial credibility or the reliability of her evidence that the accused sexually touched her.
44I wish to comment on one area of cross-examination. Defence counsel questioned the complainant regarding her claim that the accused gave her 100 long-stem red roses in Hamilton. Counsel suggested to the complainant that she told the police “this” started when the accused gave her the roses. The complainant agreed. Although defence counsel’s questioning was vague, the context of the questioning suggests that “this” refers to sexual touching by the accused.
45Defence counsel then confronted the complainant with “touching that happened” in North York before the family moved to Hamilton. The objective of cross-examination on this point was to establish an inconsistency between the complainant’s police statement, which suggested that the accused began touching her in Hamilton, and allegations the complainant appears to have made that the accused touched her earlier, in North York.
46This line of questioning was problematic. Although questioning about the “touching that happened in North York” was also vague, it was evident that defence counsel was alluding to allegations made by the complainant of other sexual touching, presumably by the accused, which had not been introduced at the trial as part of the subject matter of the charges against the accused.
47If defence counsel wished to pursue this line of questioning, it required a section 276 application to adduce evidence of the other non-consensual sexual touching that the complainant claimed had occurred in North York, if in fact she made any such allegations against the accused. No application was made by the defence to adduce this evidence. Crown counsel, during his examination-in-chief of the complainant, made it clear that the subject matter of the charges related to the Hamilton incidents. References to entirely different allegations, in a different city, at a different time, required a Seaboyer application by the Crown or a section 276 application by the defence.
48The Crown did not object to this line of questioning. I failed to intervene to prohibit the questioning, perhaps not recognizing in the moment that defence counsel was asking about other sexual activity of the complainant, which required an application.
49In any event, the questioning on this point was brief. The complainant agreed that although she told the police that the sexual touching by the accused started when he gave her the roses, she was wrong. She attributed her difficulty remembering timeframes to confusion caused by the trauma she had experienced. Again, this did not negatively impact the complainant’s credibility in relation to her claim that the accused sexually touched her.
50The accused testified. I have considered the accused’s testimony in the context of all of the evidence. There is nothing in the substance of the accused’s evidence or the way he testified that causes me to disbelieve his exculpatory account.
51The accused gave evidence about the challenges he faced in his own childhood and early adolescence. He too became emotionally upset when he testified about suffering physical abuse at the hands of his mother resulting in his placement in foster care. The accused was also emotional when he steadfastly denied having sexually touched the complainant in the manner she described in her evidence.
52I find that the accused did his best to recall the details of events that occurred four decades earlier. His evidence was logical and coherent. He testified that he did not know his father growing up. The accused lived with his mother until he was placed in foster care “[s]omewhere around 12, 13 years old, in around”. The Catholic Children’s Aid Society letters confirm that he was placed in foster care when he was 14 years old and left voluntarily and without permission when he was 16 years old.
53The accused testified about his living conditions after leaving foster care. He described his transient living conditions, sometimes living with friends, mostly drinking beer and smoking weed, and living with his brother for a few months. The accused says that he moved in with a guy after he “got welfare” to support himself. Because of anxiety, he did not finish high school. At times, he would also stay with his grandmother in Stoney Creek. Contact with his mother was very rare. The accused maintained that he never lived with the complainant’s family, not in North York and not in Hamilton.
54The accused gave evidence about meeting his father when he was 18 or 19 years old. When asked why he recalled how old he was when he met his father, he said that he was living with his eldest brother at the time, who was in a relationship with a woman who was pregnant. The accused testified that when he met his father, his father was not in a relationship with the complainant’s mother but “he would talk to her because he had a kid with her”.
55According to the accused, soon after he met his father, his father told him that he had a stepsister. The accused said he talked to his stepsister on the phone for a couple of weeks before he visited her at the home of the complainant and her family on Upper Ottawa Street in Hamilton. He explained how he went to that home very rarely with his father to pick up his stepsister and described how the relationship between his father and the complainant’s mother was not good. He said that any time they went to the complainant’s home to pick up his stepsister, there was always some kind of argument between his father and the complainant’s mother. He recalled seeing the complainant at the home and remembered that she would be taking care of his stepsister.
56Therefore, the accused gave evidence that his father was not in a relationship with the complainant’s mother when he first met him and then shortly thereafter met his stepsister and attended at the home she shared with the complainant. The accused’s testimony on this point is consistent with the complainant’s testimony that she met the accused after her mother’s relationship with the accused’s father had ended.
57The following exchange occurred between defence counsel and the accused:
Q. Did you ever stay over at the Ottawa house?
A. Oh, God, no.
Q. Why not?
A. Just too much going on, too many people. It was a whole party house, right? Any time we went to pick her up there was, like, eight or so people in there, you know.
58The accused’s testimony that the complainant’s home in Hamilton was a party house is consistent with the complainant’s testimony about the chaotic conditions within the home. The accused testified that he did not finish high school because of his anxiety. He also spoke of his affliction with hyperhidrosis since birth. He described how excessive sweating affected his daily life and intimate relationships. This condition would often result in various parts of his body, including his hands, being soaked with sweat, requiring him to bring a change of clothing if he was going out for an extended period of time.
59I find the accused’s claim that he did not stay at the complainant’s home overnight or live there to be plausible. I infer from the accused’s evidence that he would not have stayed at the home with that many people because of his anxiety. Furthermore, despite my finding that the complainant was credible, I do have some concerns regarding the reliability of her evidence. At one point, the complainant said she could not be specific as to how long the accused was living in the home, that it was not very long, “but there was a presence of him in the house”. I found the complainant’s use of this phrase to be an odd way to convey that the accused was living in the home and staying there overnight.
60Another concern regarding the reliability of the complainant’s evidence relates to her characterization of her relationship with the accused. She claimed that the accused was persistent on wanting to date her and recounted how he once brought her 100 long-stem red roses with a little pink teddy bear. I found this portion of the complainant’s evidence to be implausible. I accept the accused’s evidence that, given his financial circumstances at the time, there would be no way he could afford such a lavish gift. The accused’s evidence makes sense when considered in the context of other evidence in the trial. The accused had a troubled upbringing, ending up in foster care. Thereafter, he lived a transient lifestyle moving from place to place, spending much of his funds on alcohol and drugs.
61The accused gave his evidence in a balanced way. He acknowledged shortcomings in his memory, some of which was due to an acquired brain injury he sustained in a motor vehicle accident and some of which was attributable to drug use in his adolescence. Notwithstanding those admitted frailties, as I stated, I find that the accused gave cogent evidence about events that occurred many years ago.
62The accused denied staying in the complainant’s home. He denied ever going to her bedroom or sharing a bed with her. He denied touching her breasts or her vagina. The accused’s testimony, including his exculpatory account, was unshaken on cross-examination.
63The complainant acknowledged that when the accused touched her breasts with his hands, she felt no wetness on her chest or breasts after he touched her. While not determinative of whether the sexual touching occurred, the absence of wetness, given the accused’s hyperhidrosis, provides some, albeit limited, corroboration of the accused’s denial. Similarly, his testimony regarding the structured nature of foster care provides some support for his claim that he did not live in the complainant’s home during at least a portion of the timeframe set out in the charging information. However, I find that this evidence is also of limited significance. It does not provide the accused with an alibi as defence counsel argued.
64Crown counsel, toward the end of his cross-examination, acknowledged that the accused was emotional when vehemently denying that he sexually assaulted the complainant. The following exchange occurred between Crown counsel and the accused:
Q. I can see you and your emotional response now and…
A. Yes, sir.
Q. …and everything is recorded here but not visually. So, to be clear, I can see you beginning to cry.
A. Yes.
Q. I can hear the tenor in your voice and you’re upset.
A. Yes, sir.
Q. But you’re going to agree with me that you witnessed the same from [the complainant] describing what she says you did to her.
A. I seen pain in her?
Q. You heard the difficulty and tenor in her voice…
A. Yes.
Q. …as she described…
A. Yes.
Q. …what she says you did to her.
A. But I did not touch that girl. I did not go in her room.
Q. And you’ll agree with me that you saw the same, her crying, teary-eyed, she physically exhibited those while describing what she says you did to her.
A. So, I did see her cry.
Q. And you’ll agree with me that you watched as she rocked back and forth as she described what she says you did to her.
A. Yes, I did see that. But that was – that was a lie, sir. There’s no way.
65Notwithstanding his forceful and passionate denial of the complainant’s allegations of sexual touching, the accused readily acknowledged the emotion he saw when the complainant testified about the sexual abuse. While the Crown’s line of questioning may have crossed into prohibited territory, it caused no prejudice to the accused. On the contrary, his responses under that questioning enhanced his overall testimonial credibility.
66It is evident from the testimony of the complainant and the accused that they both experienced significant challenges in their upbringing. They gave conflicting evidence about the crime alleged. I found them both to be credible witnesses, notwithstanding some reliability concerns that I have identified in this judgment. Each of them testified with emotion about the subject matter of the charges.
67Having considered the totality of the evidence, I am unable to resolve their conflicting evidence about the crime alleged. I am unable to find beyond a reasonable doubt that the accused touched the complainant’s breasts and vagina as she alleged, which is the central issue in this case. The accused’s exculpatory account might reasonably be true. Having assessed the accused’s denial that he sexually touched the complainant, in the context of the totality of the evidence, I am left in a state of reasonable doubt about his guilt.
Conclusion
68I find the accused not guilty of the offences of committing an act of gross indecency (s. 157 of the Criminal Code) and sexual assault (s. 246.1 of the Criminal Code).
Released: July 24, 2025
Signed: Justice J.P.P. Fiorucci
Footnotes
[1] R. v. Lifchus, [1997] 3 S.C.R. 320.
[2] R. v. W.(D.), [1991] 1 S.C.R. 742.
[3] The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at p. 47.
[4] R. v. H.(S.M.), 2011 ONCA 215, at para. 8.
[5] R. v. Challice, [1979] O.J. No. 1301 (Ont. C.A.), at para. 38.
[6] R. v. T.A., 2020 ONCA 783, at para. 28.
[7] Ibid, at para. 29.
[8] R. v. J.W., 2014 ONCA 322, at para. 26.
[9] The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at p. 58.
[10] Ibid, at p. 58.
[11] R. v. Morrissey (1995), 97 C.C.C. (3d) 193, at para. 33.
[12] R. v. D.P., 2017 ONCA 263, at para. 26.
[13] R. v. A.S. (2002), 165 C.C.C. (3d) 426 (Ont. C.A.), at para. 38.
[14] R. v. Reimer, 2024 ONCA 519, at para. 93.
[15] R. v. W.(R.), [1992] 2 S.C.R. 122, at para. 27.
[16] Transcript of Trial, February 27, 2025, p. 27, ln. 24-27.
[17] Transcript of Trial, February 27, 2025, p. 27, ln. 28 - p. 28, ln. 13.
[18] Transcript of Trial, February 27, 2025, p. 28, ln. 14-17.
[19] Transcript of Trial, February 27, 2025, p. 20, ln. 17.
[20] Transcript of Trial, February 27, 2025, p. 20, ln. 17-19.
[21] Transcript of Trial, February 27, 2025, p. 21, ln. 31 - p. 22, ln. 2.
[22] Transcript of Trial, February 27, 2025, p. 22, ln. 20-21.
[23] Transcript of Trial, February 27, 2025, p. 29, ln. 10-11.
[24] Transcript of Trial, February 27, 2025, p. 29, ln. 11-18.
[25] Transcript of Trial, February 27, 2025, p. 32, ln. 16-24.
[26] Transcript of Trial, February 27, 2025, p. 34, ln. 11- p. 35, ln. 19.
[27] Transcript of Trial, February 27, 2025, p. 38, ln. 24-30.
[28] Transcript of Trial, February 27, 2025, p. 39, ln. 20-24.
[29] Transcript of Trial, February 27, 2025, p. 38, ln. 31 – p. 39, ln. 2.
[30] Transcript of Trial, February 27, 2025, p. 41, ln. 7-11.
[31] Transcript of Trial, February 27, 2025, p. 41, ln. 12-14.
[32] Transcript of Trial, February 27, 2025, p. 41, ln. 15-21.
[33] Transcript of Trial, February 27, 2025, p. 41, ln. 22-27.
[34] Transcript of Trial, February 27, 2025, p. 33, ln. 32- p. 34, ln. 8.
[35] Transcript of Trial, February 27, 2025, p. 37, ln. 2- 8.
[36] Transcript of Trial, February 27, 2025, p. 37, ln. 9- p. 38, ln. 3.
[37] Transcript of Trial, February 27, 2025, p. 38, ln. 4-16.
[38] Transcript of Trial, February 27, 2025, p. 38, ln. 17-20. The date range of the alleged offences includes a period when the complainant was 14 years old and the age of consent to sexual activity was 14.
[39] Transcript of Trial, February 27, 2025, p. 46, ln. 13-15.
[40] Transcript of Trial, February 27, 2025, p. 47, ln. 23-24.
[41] Catholic Children’s Aid Society of Hamilton, letter dated March 26, 2024 (Exhibit 1) and Catholic Children’s Aid Society of Hamilton, letter dated June 14, 2024 (Exhibit 2). The letters indicate that the Society terminated its Society Wardship on September 17, 1986.
[42] R. v. Rohde, 2009 ONCA 463, at para. 17.
[43] Transcript of Trial, February 27, 2025, p. 70, ln. 6 – p. 71, ln. 7.
[44] Transcript of Trial, February 27, 2025, p. 22, ln. 18-26.
[45] Transcript of Trial, February 27, 2025, p. 22, ln. 27-30.
[46] Transcript of Trial, February 27, 2025, p. 22, ln. 20.
[47] Transcript of Trial, February 27, 2025, p. 43, ln. 19 – p. 44, ln. 13.
[48] Transcript of Trial, February 28, 2025, p. 85, ln. 5 – 8.
[49] Transcript of Trial, February 28, 2025, p. 91, ln. 28 – 29.
[50] Transcript of Trial, February 28, 2025, p. 94, ln. 16 – 19.
[51] Transcript of Trial, February 28, 2025, p. 93, ln. 21 – 26.
[52] Transcript of Trial, February 27, 2025, p. 20, ln. 18 – 19.
[53] Transcript of Trial, February 27, 2025, p. 54, ln. 29 – p. 55, ln. 13.
[54] Transcript of Trial, February 28, 2025, p. 113, ln. 16 – p. 114, ln. 13.
[55] R. v. Humphrey, 2011 ONSC 3024, at paras. 155-156.