WARNING
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(2.1) 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(2.1), read as follows:
486.4 Victim under 18 — other offences
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
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.
Court Information
Ontario Court of Justice
Date: October 16, 2025
Court File No.: Hamilton 998 24 47103185
Parties
Between:
His Majesty the King
— and —
Derek Burgess
Reasons for Judgment
Before: Justice Davin M.K. Garg
Heard on: August 21, 25, and October 16, 2025
Reasons released: October 16, 2025
Counsel
Raymond Woloshyn-Chick — counsel for the Crown
Lucas Triemstra — counsel for the accused Derek Burgess
Decision
Overview
1The accused, Derek Burgess, is on trial for allegedly assaulting his girlfriend's young son. He faces four charges: one count of assault by choking and three counts of common assault. It is alleged that the accused picked the complainant up by his neck, threw him onto a bed, and forced his head into a pillow. The other counts arise from allegations that the accused slapped the complainant on the back, face, and legs on separate occasions, and kicked his leg one time. The only issue for me to decide is whether the Crown has proven beyond a reasonable doubt that the accused intentionally committed the acts described by the complainant.
2These reasons explain why the Crown has met its burden on all counts.
Legal Principles
3The Crown bears the onus of proving each and every element of the offences charged beyond a reasonable doubt. The accused carries no onus to prove or disprove anything. He is presumed innocent of all charges. The burden of proof never shifts to the accused. It is not enough for me to believe that the accused is probably or likely guilty of an offence. In that situation, I would need to acquit. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than the balance of probabilities. It is an exacting standard unique to the criminal process. Reasonable doubt can arise from the evidence or from the absence of evidence. Furthermore, the Crown must prove each charge independently. The facts only relevant to one charge do not assist in proving the other.
4The accused did not testify in this case. I draw no adverse inference from this decision. There is nevertheless exculpatory evidence before me, and therefore the W.(D.) principles apply. The defence called the complainant's mother. She testified that the accused never assaulted her son. On the complainant's account, she would have been present for at least some of the alleged assaults. She also would have been around to potentially see any resulting injuries. I must acquit if I accept the mother's evidence that the assaults did not occur or if her evidence leaves me in doubt. The overriding consideration is whether the full evidentiary record leaves me with any reasonable doubt about the accused's guilt: see R. v. Thomas, 2012 ONSC 6653 at para. 24. Any evidence favourable to the accused must be considered with the conflicting evidence as a whole. The W.(D). analysis ensures that my verdict is not based on a choice between the Crown evidence and the defence evidence: see R. v. A.J.K., 2022 ONCA 487 at para. 22.
5The complainant is a child. His statement to the police was admitted into evidence on consent pursuant to s. 715.1 of the Criminal Code. He was 10 years old when he gave his statement and 11 years old when he testified in court. I must assess his evidence with reference to criteria appropriate to his mental development, understanding, and ability to communicate. The complainant's youth was evident during the statement. At one point, the police officer taking his statement stepped out of the room; upon returning, she found the complainant hiding underneath the couch. I must take a "common sense approach" when assessing the testimony of children and not impose "the same exacting standard" on a child as I might on an adult: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at 54-55; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at 133-134. "While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it": B.(G.) at 54-55; see also R. v. D.F., 2023 ONCA 584 at paras. 63-69. To be certain, the standard of proof is not lower in cases that rely on a child witness. Guarding against the injustice of a wrongful conviction demands a robust evidentiary foundation before returning a guilty verdict.
Analysis of the Defence Evidence
6The complainant's mother testified that the accused was her former partner and that he lived with her approximately 70–80% of the time during the relevant months when her son was in her care. She described herself as a protective mother and denied ever witnessing the accused assault the complainant. She stated that she would never permit anyone to harm her child and insisted that the accused treated the complainant well, often playing with him and assisting with discipline. She testified that she never observed bruising or redness on the complainant during her parenting time. She asserted that the allegations of abuse were fabricated with pressure from the complainant's father amid a contentious custody dispute.
7I do not accept the testimony of the complainant's mother. I find that she was not a credible or reliable witness on the material issue of whether the accused abused the complainant.
8There was a significant inconsistency in the mother's evidence concerning her relationship with her son. During her examination in-chief, she portrayed them as a close team who did everything together and described him as "just a good all-around kid". She described their relationship much less optimistically when speaking to the police. She acknowledged that her son slapped her, raised his fists at her, and even treated her "like garbage". The inconsistency is stark. I find that she tried to suppress this negative characterization of their relationship during her examination in-chief.
9This inconsistency matters because it informs how she might have perceived the accused's conduct toward her son. The evidence revealed that she greatly valued the accused's presence in the home because he supported her in managing her son's behaviour. She acknowledged that her son's conduct improved after the accused entered the home and that she was relieved to finally have someone on her side. While this does not necessarily mean that she deliberately ignored abuse, it undermines the reliability of her assertion that no abuse occurred. She could have seen what she wanted to see by focusing on the help the accused was providing to regulate her son. She may have minimized or rationalized physical aggression as legitimate discipline. For example, she emphasized verbal interventions such as "go to your room and listen to your mother" yet conceded that the accused physically carried the complainant to his bedroom when he refused to comply. This selective framing suggests a willingness to downplay conduct that crossed the line from discipline to violence. That finding is not inconsistent with the evidence that she loved her son. Affection and vigilance are not synonymous; a parent can care deeply yet still minimize or rationalize conduct that crosses the line.
10I also found it concerning that the mother was testifying because she needed to clear her name. She explained that she was testifying "to stand up for myself, to defend myself and, and to let everyone know that I would never, I would never allow anyone to touch my son". Yet the mother was not the one on trial. Her comment suggested a personal motivation that may have influenced the reliability of her testimony and calls into question whether she was committed to sharing her genuine recollection of events.
11Even if I accepted the mother's testimony, it would not preclude a guilty verdict on some counts. On the record before me, it remains plausible that the accused could have committed some of the alleged assaults without the mother noticing. But I need not resolve that hypothetical. Given the flaws I have identified, her testimony does not leave me in doubt about whether the offences occurred or could have occurred.
Analysis of the Crown's Case
12The defence argues that the complainant's evidence lacked reliability and credibility on account of inconsistencies. The defence argues further that the complainant intentionally coloured his evidence, was impeached on fundamental elements of the allegations, and made bald assertions without sufficient detail.
13I disagree. I accept the complainant's evidence. I find that he was a credible witness who gave reliable evidence about being assaulted by the accused.
Inconsistencies in Describing the Assaults
14The defence focused during cross-examination and in its written submissions on purported inconsistencies in how the complainant recounted the choking incident. In his police statement, the complainant stated that he was having trouble sitting down during dinner. The accused responded by grabbing him by the neck with both hands, lifting him off the ground, and carrying him from the kitchen to his bedroom. The accused then threw him onto the bed, pressed his head into a pillow, and continued choking him for about ten seconds, making it difficult to breathe. The complainant recalled crying during the incident and said his mother was present but did nothing.
15The defence suggested that the complainant's account—even within his police statement—was internally inconsistent and inherently implausible. I see no such flaw. Even if the complainant were an adult, it would be unrealistic to expect flawless narration from the person involved in a dynamic and apparently traumatic event. Human memory does not operate like a video recording.
16The defence emphasized that the complainant walked back the choking allegations during his testimony. I reproduce the passage in question:
Q. So I'm going to suggest that you're actually telling a story that's not really, it's not really matching up with, with one another, okay? That you had described being thrown and placed on the bed in multiple ways, okay? I'm going to suggest to you that the way you're describing this, they, they can't all be true, okay? And really what I'm suggesting [to you], is that [the accused] never threw you on the bed. At, at no point in time did [the accused] actually throw you onto the bed? Isn't that right?
A. Kind of.
17Contrary to counsel's argument, the complainant's answer was not devastating to his credibility or reliability. His "kind of" response must be examined in context. It followed a lengthy question with multiple parts. The subsequent testimony established that the complainant was not resiling from his description of the choking incident:
Q. I, I am suggesting to you that, in fact, [the accused] never threw you on the bed? That he's never thrown you on the bed and I believe that you answered my question by saying "maybe"? Is that right?
A. No.
Q. I'm going to suggest that you used your own two feet to walk to your room and eat that night?
A. No.
Q. I'm suggesting even further that he never grabbed your neck like you've described and pushed it into the pillow, okay? I'm, I'm going to suggest to you, would you agree that he didn't do that?
A. No.
Q. I'm going to suggest you, you actually don't recall and you don't have the memory of [the accused] throwing you on the bed, or of [the accused] picking you up and choking you? Would you agree with that?
A. No.
18The complainant's greater difficulty in recounting events at trial as compared to his police statement does not undermine my assessment of his credibility or reliability. His answers were not so limited such that cross-examination was illusory, and he provided additional detail on the second day of trial when testifying by CCTV. It is unsurprising that his police statement was more comprehensive. One rationale for admitting such statements under s. 715.1 is that they are given closer in time to the events and in circumstances more conducive to disclosing difficult details.
19A notable example of added detail at trial concerned the accused pushing the complainant's head into a pillow. In his police statement, the complainant imprecisely demonstrated the accused's motions and did not say exactly where the accused placed his hands. At trial, defence counsel suggested that the accused's hands were on the back of the complainant's head. The complainant firmly but fairly disagreed, explaining: "I don't think, I don't think it was the back of my head … he lifted my head up and then put me on my pillow, like, like with the side of my head". The precise location of the accused's hands is not material, but the complainant's approach—reflecting on what he remembered and candidly qualifying his answer—showed maturity and a genuine effort to be accurate. I found the complainant's testimony on this issue to be compelling. It enhanced his overall credibility and reliability.
20Finally, the defence points to Crown counsel's question in re-examination—"Do you remember talking about the incident where you were slapped in the face about five times?"—and the complainant's equivocal answer, "Kind of". The difficulty is that the complainant never alleged five face slaps in a single incident. That detail only appears in his police statement in relation to slaps on his legs while playing video games. However, the misstatement originated in the phrasing of the Crown's question, not in the complainant's evidence. His response was ambiguous and does not amount to an adoption of that statement. If anything, his response reflects an attempt to reconcile the accurate and inaccurate components of the question. The complainant's core account remained consistent: two face-slapping incidents and one leg-slapping incident.
Ability to Hide in the Closet
21The complainant gave conflicting accounts about whether he could fit in the closet at his mother's apartment. In his police statement, he said that he did not hide in the closet because it was too small. During cross-examination, he admitted that he could fit in the closet if he wanted to.
22I must carefully consider whether this inconsistency demonstrates a flagrant or careless disregard for the truth that undermines the complainant's overall credibility. I find that it does not. The inconsistency relates to a peripheral matter. The complainant never linked the closet's small size to an inability to hide from the accused and thereby avoid the alleged assaults. He testified that some of the assaults caught him by surprise. And for those where the complainant did hear the accused yelling in advance, it is unclear how hiding in the closet would have helped him. The defence submits that the complainant fabricated the idea of trying to hide during his police statement to fill a gap in his account. I do not accept that submission. The complainant's reference to hiding was brief, undeveloped, and did not appear to be an effort to repair a deficiency. In short, the closet was not presented as relevant to the narrative of abuse. I do not know why the complainant told the police one thing and the court another, but I am satisfied that the complainant was not attempting to deceive the officer. This issue does not affect my overall assessment of the complainant's credibility on the material points.
Relationship with the Accused
23I find the complainant's relationship with the accused—beyond the alleged assaults—to be immaterial. The defence elicited evidence of when the complainant appeared to enjoy the accused's company and confided in him. The implicit logic is that such trust and apparent happiness are incompatible with the alleged assaults. I do not agree with that reasoning. I do not know whether the complainant's happiness was genuine during those moments. Even if it were, it is not inconsistent to maintain closeness with someone who is also causing harm. A video clip of the complainant smiling and laughing is not a reliable barometer of what happened in the home.
Presence and Absence of Injuries
24The evidence establishes that the complainant sustained a bruise to his leg during the relevant period. I accept the evidence of the complainant and his father on this issue. In his police statement, the complainant said that the accused kicked him on the right leg while he was sitting on the side of his bed. He described the kick as leaving a red mark immediately, which turned purple a few days later. He rated the force as "maybe like a six or a five" out of ten compared to a soccer kick. At trial, he confirmed that the kick was to his thigh while his feet were on the ground and his legs bent at a 90-degree angle, though he could not describe precisely how the foot made contact. The complainant's father testified that in mid to late February 2024, the complainant showed him a "fairly good-sized" bruise on his leg—he believed the left leg but was uncertain.
25The bruise lends some support of the complainant's account, though I do not put too much weight on it. The complainant was an active young boy who played soccer regularly, making it possible that the bruise resulted from a cause unrelated to the accused. Despite this caution, the size, colour, and timing of the bruise are broadly consistent with his description of being kicked by the accused. I find that the bruise gives me a measure of added confidence in the credibility and reliability of the complainant's evidence: see R. v. H.P., 2022 ONCA 419 at para. 71.
26The absence of other significant injuries does not diminish the credibility or reliability of the complainant's account. He testified that he noticed some redness on his face after being slapped but observed no marks or bruising elsewhere, including after the choking incident. I do not accept the submission that common sense dictates he would have suffered visible injuries. The assaults he described are not of a kind that would necessarily leave lasting or obvious marks, even if the slaps to the face were delivered sharply and with enough force to make an audible sound. Nor can I say that the choking described ought to have resulted in bruising. The fact that other people, such as his father, school staff, or members of the public, did not notice or react to any redness is immaterial. These were relatively minor effects, and I would not expect them to draw attention. Accordingly, the lack of observable injuries does not introduce doubt about whether the assaults occurred.
27Finally, the fact that the complainant's mother did not see any injuries does not impact my assessment. I have already explained why I do not accept her testimony and that it does not leave me in doubt.
Motive to Fabricate
28The defence submits that the allegations were fabricated for strategic reasons connected to family dynamics. Counsel argues that the complainant's father had a strong incentive to secure full custody and viewed allegations of abuse as a "sure-fire way" to achieve that goal. The father allegedly coached the complainant or influenced him by portraying the accused as dangerous and unsuitable for his mother. The defence also contends that the complainant himself had motives: he disliked the accused's paternal role in enforcing rules, did not want his mother to continue her relationship with the accused, and preferred living full-time with his father. The complainant acknowledged that reporting abuse could lead to his mother and the accused separating. The defence submits that these factors, taken together, provided a plausible motive for fabrication.
29I accept that the father bore animus toward the mother and wanted to change the parenting regime in his favour. He gratuitously called the mother a "narcissist"—this characterization was untethered to any factual foundation in the evidence. He acknowledged exploring a shift to full custody months before the allegations surfaced, and he was the one who brought the complainant to the police.
30In my view, however, the record does not show that the father's animus translated into coaching or contamination of the complainant's core allegations. The father testified that he learned details only after the complainant had already disclosed incidents to a CAS worker. That sequence—disclosure to child protection first, then to the parent—undercuts a theory that the account originated from or was scripted by the father. The police interview occurred away from the father and was conducted by an officer using open-ended prompts to draw out the complainant's allegations. The discrepancy between the complainant and his father as to which leg bore the bruise also weakens the coaching theory. The father's evidence on this point did not carry the hallmarks of collusion; it was hesitant and almost casual, not the kind of account one would expect from a story crafted for his son to repeat:
So he showed me his leg. I think it was his left leg, I'm not 100 percent sure on it. I mean, the details are a little bit fuzzy and if I had known something was going on at that point, I'm sure I would have made more of a mental note …
31The complainant's evidence reflects the characteristics of an uncoached, child-centred account. His statement included mundane detail (e.g., his gaming habits) and candid admissions of not remembering peripheral matters. He did not immediately volunteer allegations against the accused; rather, the officer had to elicit them gradually. When allegations emerged, he qualified suggestions and offered measured responses. These features, coupled with the absence of sweeping accusations, are inconsistent with a rehearsed narrative and instead reflect the uneven recall typical of a child witness. When he testified months later, he adopted his statement but remained cautious on points he could not recall, reinforcing my impression of his sincerity.
32While the lack of embellishment is not a makeweight in favour of credibility, it is a relevant factor when assessing a claimed motive to fabricate: R. v. Gerrard, 2022 SCC 13 at para. 5. The complainant did not overstate his injuries. He agreed there were no bruises on his face and no marks on his neck from the choking incident; he spoke only of transient redness. He described a single kick to the leg that left a bruise and rated the force as moderate, not maximal. This restraint, particularly from a young complainant, militates against an account fabricated to serve ulterior objectives.
33The complainant may have wished for his mother and the accused to separate. That possibility is neither surprising nor sinister in the context of a blended family. What matters is why he held that view. On re-examination, when asked why he did not want his mother dating the accused, the complainant's answer was unqualified: "Because what he did to me." That response was anchored in the alleged conduct, not in a desire for more time with his father or a general dislike of the accused. I accept that evidence. It was credible.
34In conclusion, I do not find that the complainant acted on any motive to fabricate. I am not, however, making a positive finding that he had no motive to fabricate. Motives can remain hidden or there may be no motive at all: R. v. Bartholomew, 2019 ONCA 377 at para. 22. There is no burden on the accused to prove a motive to fabricate or to disprove that the complainant had no motive to fabricate: R. v. S.S.S., 2021 ONCA 552 at para. 38. I do not use the absence of motive to fabricate as a makeweight in favour of the complainant's credibility; see also R. v. R.K., 2023 ONCA 653 at para. 46.
Credibility Findings
35In summary, I find the complainant to be a credible witness who gave reliable evidence about the assaults. While his account was not always rich in detail, the level of specificity he provided was proportionate to his age and developmental stage. The complainant is a young boy of few words, but I do not require a tapestry of detail to be satisfied that these events occurred. The complainant's candour, which included his willingness to acknowledge what he could not remember, enhanced his credibility: see R. v. Cordeiro, 2024 ONCA 868 at para. 14. His inability to recall certain details does not prevent me from accepting the core of his testimony: see R. v. A.A., 2023 ONCA 174 at para. 17. On the essential points, the complainant adhered to the account he gave in his police statement and was not materially dislodged in cross-examination. Having considered both the individual and cumulative effect of the defence challenges, I am satisfied that they do not undermine his credibility or reliability.
Conclusions
36I accept the complainant's evidence. Having considered the entire evidentiary record, including the exculpatory evidence from the complainant's mother and the absence of other injuries, I am not left with reasonable doubt. Rather, I am satisfied beyond a reasonable doubt that the accused committed the assaults in the manner described by the complainant.
37The defence acknowledges that this conclusion ends the analysis. Having accepted the complainant's evidence, there is no dispute that the Crown has proven the physical and mental elements of each offence beyond a reasonable doubt. There is no suggestion that the accused acted unintentionally or with consent. These were not instances of playfighting or legitimate discipline. They were assaults, committed in anger or under the guise of misguided discipline, typically because the complainant was not listening or complying.
38On count 1, assault by choking, suffocation, or strangulation, I find that the accused choked the complainant when he grabbed him by the neck with both hands during dinner and continued to suffocate him when he pressed his head into the pillow. The complainant had difficulty breathing for about 10 seconds.
39The three counts of common assault are unparticularized. I attribute the conduct as follows on the consent of the parties:
On count 2: I find that the accused kicked the complainant on the leg with sufficient force to leave a bruise.
On count 3: I find that the accused slapped the complainant on his face and legs over three incidents. There were two incidents where the accused slapped the complainant in the face with an open hand. In the context of one incident, the face slapping followed the accused saying, "Why are you not listening to me, do what I told you?"
On count 4: I find that the accused entered the complainant's room, took off his headphones, struck or slapped him on the back, and told him it was time to leave. While this assault was relatively minor, it nevertheless involved the application of force without consent.
Disposition
40I find the accused guilty on all counts.
Released: October 16, 2025
Signed: Justice Davin M.K. Garg
Footnotes
1The use of the accused's name could not identify the complainant.
2The decision of Hourigan J.A. was affirmed on appeal to the Supreme Court of Canada.
3Transcript, August 21, 2025, at p. 74 ("I'm going to suggest to you that the way you're describing this, they, they can't all be true, okay?").
4Defence submissions at para. 49.
5See also defence submissions at paras. 54-57.
6Transcript, August 25, 2025, at p. 15.
7The discrepancy between the complainant and his father as to whether the bruise was to the right or left leg is a minor point, particularly given the father's uncertainty on this detail.
8Defence submissions at paras. 14-15.
9Defence submissions at para. 19.
10For example, at p. 22 of the statement: "How many times did [the accused] slap you? Once".
11"[L]ack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant's credibility—it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie".
12See the oral submissions on October 16, 2025.