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(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.
R. v. J.H., 2025 ONCJ 654
Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
J.H.
Before Justice Mara Greene
Reasons for Judgment released December 4, 2025
M. Boissonneault..……………………………………………………..….… for the Crown
D. Gosby……………………… ……………………………………..… for J.H.
Greene, J:
1Mr. J.H. is charged with sexual assault and sexual interference in relation to S.S. when she was three or four years old. At the time of alleged offence, J.H. was in a parental role in relation to S.S. as he was living with S.S.’s mother.
2At trial, Crown counsel sought to admit S.S.’s statement to police pursuant to section 715.1 of the Criminal Code. Counsel for J.H. opposed this application. After hearing the application, I advised counsel that the statement was admissible under section 715.1 of the Criminal Code and that I would provide my reasons later so as not to delay the trial.
3In addition to hearing from S.S. at trial, the Crown also called S.S.’s mother, A.S., who testified about the circumstances of J.H. living with her and S.S. as well as what occurred when S.S. disclosed the abuse. J.H. testified at trial and denied committing any sexual assault on S.S.
Summary of the evidence
Background
4J.H. met A.S. in 2016. Shortly after meeting, they moved in together and A.S. became pregnant. At the time, S.S., who was born in February 2015, was not living with A.S. Later in 2016, S.S. moved in with A.S. and J.H. She would have been approximately one and a half years old at time. In March 2017, Su. was born. She is the daughter of J.H. and A.S.
5Around the time of Su.’s birth, A.S.’s friend, Angelica, moved in with J.H. and A.S. Angelica was pregnant at the time and her fiancé also moved in with them.
6J.H. and A.S. separated sometime in the middle of 2018. None of the witnesses had the exact date of the separation, but J.H. thought it was around the summer time because it was hot outside when he moved out. In the summer of 2018, S.S. would have been three years old. In 2019 or so, A.S. became involved with a man named Adrian. He moved in with A.S., S.S. and Su. around that time. A.S. and Adrian have one child together.
7Between 2016 and 2018, J.H. acted in a parental capacity to S.S. He would help with all the childcare activities including bathing. When J.H. moved out in 2018, he continued to see Su., but did not see a lot of S.S. According to both A.S. and J.H., J.H. had some contact with S.S. and Su. after he moved out, but over time the visits decreased in frequency. A.S. testified that there has been no contact with J.H. since 2022.
Evidence of A.S.
8In early 2024, when S.S. was nine years old, she reported to Angelica that J.H. sexually assaulted her when she was three years old. Angelica relayed this to A.S., who then spoke to S.S. about the allegations. Eventually the police were contacted, and S.S. provided a lengthy statement to the police.
9A.S. testified that she did not obtain a lot of details about the allegations from S.S. She did report, however, that S.S. was inconsistent on a few points. First, S.S. reported at one point that she was sexually assaulted on only one occasion. At a different time, S.S. reported that she was sexually assaulted multiple times. Second, S.S. reported at one point that she had pants on when the assault started. She later reported that she was naked. A.S. also testified that during one of her discussions with S.S. about the sexual assault allegations, she expressed to S.S. how important it was that this really happened as the allegations were very serious. S.S. replied that it maybe it was a dream.
10A.S. testified that in 2017 she shared a bedroom with J.H. S.S. and Su. shared the second bedroom in the apartment and Angelica slept on the couch with her fiancé and infant child.
11A.S. testified that during the time when J.H. lived with her and S.S., she never noticed any blood on S.S.’s underwear or linens.
12In relation to bathing, A.S. testified that S.S. and Su. would often take baths together and would play in the bath. This ended once S.S. was older, perhaps around five years old. A.S. further testified that while both she and J.H. would bathe the girls. If A.S. started the bath it was uncommon for her to not finish bathing the girls herself.
13A.S. testified that S.S. does not like being bathed, in particular she does not like having her vagina and bum washed.
S.S.’s Evidence
14S.S.’s evidence-in-chief was mostly the video of her statement to the police in March of 2024. During this statement, when S.S. was asked about the sexual assaults, S.S. was very uncomfortable verbalizing what took place. Instead, she wrote down some words to describe what happened, drew a picture and physically demonstrated the sexual assault.
15According to S.S., J.H. sexually assaulted her multiple times right after she had a bath. She was three or three and a half years old at the time. S.S. told police that her mother would put her in the bath or shower and then leave the residence with her friend. J.H. would then step in and help with the bath. When the bath was done, J.H. put his penis inside her bum.
16S.S. told the police that this happened multiple times. Sometimes she would say it hurt and he would stop other times she stated that she had to go to the bathroom.
17S.S. told police that J.H. would put her on the toilet seat and put his penis inside her. Or sometimes she would be on all fours and he would put his penis in her bum. S.S. also told police that each sexual assault took ten minutes. She knew this because she would look at the clock in the bathroom and would see that ten minutes had passed.
18S.S. told police that she can still picture what happened and that she remembered that it hurt. The sexual assault that she recalls most clearly occurred on a Sunday. She knew this because she saw on the calendar it said Sunday. Her birthday was on a Sunday and her mom had taught her to read the word Sunday.
19S.S. did not report the abuse earlier because she was scared, and J.H. was strong. The last time she saw J.H. was two years before she spoke to police. He had come by to see his daughter, Su.
20At trial, Crown counsel asked S.S. if there is anything from the statement she remembers differently now. S.S. testified that she told police that she was three at the time of the abuse but now believes she was four years old.
21Crown counsel asked no further questions of S.S. During cross-examination, S.S. testified that at the time of the allegations she and Su. slept together on a couch in the living room. J.H. slept in one of the bedrooms and her mother slept in the other bedroom with Adrian (A.S.’s husband). S.S. also testified that Angelica, her fiancé, and their baby Ab. also slept on a couch.
22S.S. testified that when J.H. was living with her, she had both baths and showers but that she never bathed with Su. She further testified that the sexual assaults always started with her mom putting her in the shower or bath and placing her clothes on the toilet seat. Su. would be in the other room watching television. Her mom would then go out with a friend and J.H. would come in and commit the sexual assaults. S.S. further testified that the sexual assaults stopped after J.H. moved out of the residence.
23S.S. testified that while she told the police that she looked at the clock and as such she knew that the sexual assault took ten minutes, she now knows that she was not able to tell time when she was three or four years old and thinks the sexual assault lasted around five minutes instead of ten.
24S.S admitted that she told her mom that she thought it all might have been a dream. S.S. further testified that she was not lying when she told her mother this. S.S. later testified that it was not dream and that she only told her mother that it might have been a dream because S.S. thought that her mother thought she was lying. In light of this answer, S.S. was asked again if she was telling the truth when she told her mom that it might have been dream. S.S. replied that she did tell the truth to her mother.
J.H.’s Evidence
25J.H. testified that he lived with A.S. from 2016 until 2018. He believes that S.S. moved in with them in early 2017, prior to Su. being born. J.H. testified that S.S. and Su. shared one bedroom while he and A.S. shared the other bedroom. According to J.H., his relationship ended with A.S. in the summer of 2018. He moved out two weeks after they broke up. J.H. testified that he did return to the apartment to visit Su. Sometimes S.S. would be home, and he would see her for approximately twenty minutes. J.H. admitted to bathing and washing S.S. during the time that he lived with A.S. and S.S., but denied ever sexually assaulting her. He also admitted to bathing her alone and even when A.S. was not home. J.H. further admitted that there were occasions when he had spanked S.S.
26J.H. testified that at the time of his breakup with A.S., he was unstable and not in a good place to be a good parent. He had lost his job and was working through personal challenges.
ISSUES AT TRIAL
27The main issue at trial was whether the Crown had proven beyond a reasonable doubt that J.H. committed the offences of sexual assault and sexual interference on S.S. Counsel for J.H. submitted that while S.S. was a very credible witness, she was not sufficiently reliable to support a conviction. He further argued that J.H. was both a credible and reliable witness who ought to be believed. Counsel for J.H. candidly conceded that he could not possibly provide a motive for S.S. to make up this allegation nor could he provide an explanation as to how S.S. would know about the sexual acts alleged. While these may be compelling factors that would support a finding of guilt, the inconsistencies within S.S.’s evidence and between her evidence and A.S.’s evidence should leave me with a reasonable doubt about the reliability of S.S.’s evidence.
28Crown counsel, on the other hand argued that while J.H. was a very good witness and there is nothing in his evidence that would lead to a rejection of his evidence, this is the kind of case where I should reject his evidence because I am satisfied beyond a reasonable doubt that the offence occurred based on S.S.’s evidence. Crown counsel argued that while S.S. was inconsistent about a host of peripheral issues, she was consistent about the core elements of the offence.
General Legal Principles
29The starting point in understanding any decision in a criminal court is understanding the burden of proof. The burden lies on the Crown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that J.H. is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.
30In Canadian criminal law, there is a clear process for addressing evidence where the defendant testifies. The court must consider whether she believes the defendant’s evidence. If the court does not believe the defendant, she must go on to consider whether the defendant’s evidence leaves her with a reasonable doubt about the commission of the offence. Where there are competing versions of events the court is not permitted to merely decide which version of events the court likes better. In assessing whether to accept the defendant’s evidence the court must consider all the evidence, including the evidence of the complainant. A considered and reasoned acceptance of the complainant’s or any other witness’s evidence beyond a reasonable doubt is a sufficient basis to reject the testimony of the defendant (R. v. J.J.R.D. 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (CA), at paras 53- 54, R. v. T.S. 2012 ONCA 289 at para 79 and R. v. R.E.M. 2008 SCC 51 at para 66)
31The issues in the case at bar are directly linked to the reliability of S.S. and the credibility of J.H. I can accept some, none, or all of a witness’ testimony. Given the passage of time since this event occurred, I am mindful that some inconsistencies may not have the same import as they might have if the witnesses had been interviewed closer in time to the event. Moreover, not all inconsistencies mean a witness is being dishonest. I must look at the nature of the inconsistency to assess what impact, if any, it has on my assessment of the witness’ evidence. I am also mindful that honest witnesses can be mistaken.
32S.S. was only three or four at the time of the allegations, she was nine when she spoke to police and was ten at the time of trial. I need to be mindful that factors which may otherwise reasonably impugn a witness’ evidence, like an inconsistency in time or place, may not negatively impact the trier of fact’s view of a child’s evidence (see R. v. Barusa 2014 ONCA 34 at para 25). Assessment of the credibility and reliability of a child witness must take into account specific characteristics of young persons. As was stated by the Court of Appeal in R. v. Barusa, supra, at paragraph 25,
25The complainant was 10 years old when he testified. There was also one other child witness. The trial judge was obliged to tell the jury that it must take into account the age of the complainant and the other child witness in assessing the evidence of those witnesses. Factors which may have a decisive effect on the reliability of the evidence of an adult witness—for example, material inconsistencies in details as to time and place—may play a significantly lesser role in assessing the reliability of the evidence of a child witness. That is not to say that the child’s evidence is subject to a less rigorous standard of assessment before it can be accepted in a criminal trial. Rather, it is to say that the assessment of the credibility and the reliability of any witness is to be tailored to the individual characteristics of the witness. Where the witness is a young child, age is one of those individual characteristics: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 133-34.
33I am further mindful that minor testimonial inconsistencies not related to the substance of the allegations may have little to no impact on the overall assessment of a child’s evidence. As was noted by the court in R. v. M.L. 2014 ONCA 640 at paragraphs 41 and 42,
41There were some inconsistencies in the evidence of the complainant. These inconsistencies, however, were not significant or material to the substance of the allegations. Furthermore, the appellant's counsel at trial had the opportunity to conduct a very thorough and extensive cross-examination of the complainant to address the inconsistencies head on.
42G.B. was an 11-year-old child when she gave her statement to the police and 12 years old when she testified at the preliminary inquiry. Minor testimonial inconsistencies in the evidence of children are not unusual. I agree with the respondent that while there were inconsistencies in the complainant's evidence, they related only to timing and venue issues, and not to the substance of the allegations.
34Most recently, Justice Shaw in R. v. R.C. repeated that children experience the world differently from adults and as such, trial judges should not apply adult standards to child witnesses. Justice Shaw stated at paragraphs 26-27
26Adult standards should not be applied when assessing the credibility of a child witness. Children may experience the world differently from adults, and, as such, important details like time and place may be missing from their recollection, and they may experience confusion about sequence, frequency and separation of days: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 133 and R. v. C. (T.) (2005), 2005 CanLII 371 (ON CA), 74 O.R. (3d) 100 (C.A.) at paras. 19 and 40.
27Flaws in a child’s evidence may not toll so heavily against credibility and reliability as they do against the testimony of an adult: R. v. C.(H.), 2009 ONCA 56 and W. (R.), at p. 133, citing R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55. A common sense approach must be used when assessing the testimony of young children and not necessarily he same exacting standard as applied for adults. They may not be able to recount precise details and communicate the when and where of an event with precision, but that does not mean they have misconceived what happened to them and who did it: B. (G.), at p. 55. To be clear, however, this does not mean that a child’s evidence is subject to a lower level of scrutiny for reliability that that of adults: B.(G.). at pp. 54-55.
Section 715.1
35At the beginning of the trial, Crown counsel brought an application to admit S.S.’s statement to police for the truth of its contents. Counsel for J.H. opposed the application on the basis that the statement was not taken in a reasonable time. I admitted the statement indicating that I would provide written reasons at a later date.
36Section 715.1 allows for the admission of a statement made by a victim under the age 18 at the time of the alleged offence as long as the statement was made within a reasonable time of the alleged offence, it describes the acts complained of and is adopted by the victim on the stand. The trial judge has the discretion to exclude the statement where its admission would interfere with the proper administration of justice.
37In assessing whether a statement should be admitted under section 715.1, it is helpful to consider the purpose of the provision. In R. v. F.(C.C.) 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, the Supreme Court of Canada held that the purpose of the provision is two-fold. First, it helps the trial judge ascertain the truth by allowing the trial judge to consider what is likely the best recollection of the event. Secondly, it helps to reduce the trauma to the child witness (see paras 20-22). More and more trial judges are using a “trauma informed’ approach to trials mindful of the harm associated with testifying.
38The reasonable time requirement within section 715.1 relates directly to reliability. No specific time is captured by this provision. Instead, trial judges must consider all the circumstances surrounding the making the statement. The following factors have been identified as being relevant to this assessment:
a) Age of the child;
b) Explanation for the delay;
c) Impact of the delay on the child’s ability to recall the events in issue;
d) The child’s relationship with the accused;
e) The length and frequency of the alleged offences;
f) Any development stages the child may have gone through since the last alleged offence;
g) The child’s emotional makeup; and
h) Any intervening events between the alleged offense and the making of the statement.
39In the case at bar, S.S. first disclosed the alleged offence six years after it allegedly occurred. S.S. explained that the reason for the delay was that she feared the accused. She told police that he was strong and she was worried he would hit her. I should note that while J.H. moved out in 2018, he had continued contact with the family through his daughter, Su., until 2022. It is also important to note that S.S. was very young at the time of the allegations and that J.H. acted as a father figure to her in 2017 and 2018.
40In the case at bar, defence counsel was concerned with the six-year delay between the event and the statement because S.S.’s version of events changed over time. For example, S.S. at one point told her mother that the sexual assault only occurred once. At another point she told her mother that it occurred on multiple occasions. S.S. was also inconsistent on whether or not she was clothed at the time of the sexual assault.
41Of particular concern to counsel for J.H. was that S.S. reported to her mother that this may have all been a dream. At no point during the statement with the police did they ask S.S. about this.
42In my view, counsel’s concerns about the statement are valid. Six years is a very long time, especially when the child was three or four years old when the alleged event took place. Moreover, by the time S.S. spoke to the police she had already spoken to a family friend and her mother about the allegations and was not consistent about some of the details. The comment that it may have been a dream is equally concerning. Having said that, I watched the video of S.S.’s statement to police. It was clear to me that S.S. had a very hard time discussing the allegations and had to resort to drawing pictures to express herself. In my view, if the statement is not admitted, there is a real risk that S.S. would not be able to meaningfully testify and as such, her evidence would be lost. Moreover, given her young age, and her discomfort in discussing the alleged offence, compelling her to repeat the events on the stand would be traumatic.
43I am mindful of the reliability concerns raised by counsel for J.H. Six years for someone under the age of ten is a long time and the comment about the dream is something that defence rightly wants to explore. In my view, all these concerns can be easily addressed during cross-examination. If the statement is admitted, S.S. will still be testifying and can be questioned about the dream issue. Moreover, counsel can still identify the inconsistencies and explore any other potential inconsistency during his cross-examination of S.S. When I balance these concerns against the risk of losing S.S.’s evidence in its entirety and the potential harm to her by having her repeat the allegations yet again, I am satisfied that the Crown has met his burden of establishing that the statement was made in a reasonable time and that the admission of the statement will not interfere with the proper administration of justice.
Has the Crown proven the case beyond a reasonable doubt.
44Both counsel agreed that were inconsistencies in S.S.’s evidence and that J.H. was a good witness. They disagree on the import of the inconsistencies within S.S.’s evidence and whether or not it matters that J.H. was a good witness. Crown counsel argued that the inconsistencies in S.S.’s evidence were peripheral to the essential elements of the offence and that when S.S.’s evidence is viewed in the context of her age, she was a compelling, credible and reliable witness. He argued that her evidence was so compelling that it would be unreasonable to be left in a doubt by J.H.’s evidence.
45In support of his argument, Crown counsel identified a number of factors that support a finding that S.S. was truthful. Firstly, she was uncomfortable discussing the allegations. This is a sign that she experienced the trauma attached to the offence. Secondly, she had particular details that were compelling, like putting her clothes on the toilet seat. Thirdly, she was consistent in how the sexual assault took place. Fourthly, she was committed to telling the truth and even corrected the officer during the course of her statement. Fifthly, she was not challenged directly on the specific acts and sixthly, the fact that she remembers that one sexual assault occurred on a Sunday is corroborated by external evidence.
46I agree with Crown counsel that S.S. testified without guile, was uncomfortable describing the sexual assaults, presented as an honest witness and provided details around the offence.
47I do not agree that S.S was consistent on the details of the sexual assault. I am mindful that I must approach S.S.’s evidence with the appreciation that she is a child and that her memory of events will not be like that of an adult. Inconsistencies in her evidence on whether she was three or four at the time of the abuse, whether she slept on the couch or in her bedroom at the time of the allegations or even whether Adrian was living with them at the time, are the kinds of things that one would expect a child might not remember accurately and are quite peripheral to the event. There were, however, other inconsistences that in my view are not so peripheral to the allegations and are relevant to the reliability of S.S.’s memory of the allegations.
48Firstly, there were internal inconsistencies within S.S.’s evidence about the sexual assault. A.S. testified that S.S. told her that event happened once only but also said that it happened many times. This is an inconsistency about the actual abuse. A.S. also testified that S.S. told her that the assault happened while she was dressed but also stated that it happened when she was naked. This inconsistency was also apparent in her statement when S.S. at one point commented that J.H. would tell her to take her pants off. Yet later in the statement S.S. stated that her pants were still off from the bath when the sexual assault started. Another inconsistency that in my view is relevant to reliability relates to S.S.’s evidence about how long each incident of sexual assault lasted. Generally, the length of time associated with a particular assaultive conduct is the kind of thing that if the evidence changes, it is of no moment. It is the kind of inconsistency one might expect. People are notoriously bad at estimating time, especially during a traumatic event. This is even more so with children. Had the evidence been that at one point S.S. said the assault lasted ten minutes then on a different occasion said it lasted five minutes, I would not view this as an indication that she was not a reliable witness. In the case at bar, however, in addition to telling the police that the sexual assault lasted ten minutes, S.S. told the police that she knew this because she looked at the clock and saw that ten minutes had passed. S.S. gave specific details about looking at the clock. In my view, S.S. appeared to be saying that she had a memory of looking at the clock and noticing the ten minutes had passed. At trial, S.S. testified that this was not correct as she could not tell time when she was three or four. In my view, the fact that S.S. at one point had a memory of looking and reading the clock, when that just did not happen is a material inconsistency not at the periphery of the allegation.
49There were also, in my view, important inconsistencies between S.S.’s memory of the allegations and A.S.’s memory of what took place in the residence during the relevant time frame. In particular, A.S. testified that when she would put S.S. in the bath, it was uncommon for her to not complete the task. In other words it was uncommon for her to start the bath and then go out leaving J.H. to finish the bath. A.S. also testified that Su. and S.S. would often bathe together. This evidence was directly contrary to S.S.’s evidence. A.S., in my view, was a reliable witness, who was being truthful with the court. She had no motive to protect J.H. and was clearly invested in protecting and supporting her daughter. In my view, A.S.’s memory of how baths worked when her children were little is reliable and credible. Given the inconsistency between A.S.’s evidence and S.S.’s evidence about bathing, it is my view that S.S.’s memory about bath time, and her mother’s presence and absence at bath time is unreliable. I further find that the evidence about A.S.’s presence or absence at bath time is linked directly to S.S.’s memories of the actual sexual assaults and as such is not peripheral to the allegations and reflects a lack of reliability in S.S.’s memory of events surrounding the alleged sexual assaults.
50I reject the Crown’s argument that S.S. should be found reliable because the core of the allegations went unchallenged. Counsel for J.H. consistently took the position that his client did not commit the offence and that S.S.’s reliability was in issue. This position was made clear when he opposed the section 715.1 application and in my view was also clear from the questions posed to both A.S. and S.S. in cross-examination. Counsel for J.H. did a comprehensive, well thought out cross-examination that served to high-light important inconstancies within S.S.’s testimony without compelling S.S. to repeat her allegation that J.H. put his penis in her bum. Cross-examining children is a very difficult task. In my view, counsel for J.H. handled his task with respect and kindness while still preserving his client’s ability to make full answer and defence. I note that in particular, he specifically asked S.S. about whether she had told others that it all might have been a dream, a fact S.S. admitted and one that can reasonably go to the issue of reliability.
51Crown counsel further argued that S.S.’s evidence is confirmed in one way that is quite compelling. S.S. testified that the sexual assault she remembered the clearest occurred on a Sunday. She knew this because she saw the date on the calendar. S.S. testified that she knew how to read the word Sunday because her birthday that year landed on a Sunday and her mom had taught her to read the word. Crown counsel argued that in 2019, S.S.’s birthday would have landed on a Sunday, making S.S.’s memory of the timing quite accurate. On its face this may look like a compelling argument, but when all the evidence is considered, in my view, it is not. First of all, in February 2019, J.H. was no longer living with S.S. He moved out in the summer of 2018. S.S. testified that the sexual abuse stopped after J.H. moved out. If this is true, the sexual assault could not have occurred in the months leading up to her birthday in 2019. Secondly, A.S. testified that it was uncommon for her to start a bath and them have J.H. finish it while she went out. If this was uncommon when they lived together, in my view, it was even less likely to have occurred after J.H. moved out.
52I am mindful that S.S. was also inconsistent with A.S. on issues around who was living in the apartment in 2017 and 2018. S.S. told police that Adrian was living with them and that he shared a bedroom with A.S. while J.H. used the second bedroom. This cannot be accurate. Adrian is A.S.’s present husband. She did not become involved with him until 2019. In 2018, A.S. was romantically involved with J.H. I also note that S.S. testified that since J.H. had the second bedroom, she and Su. slept on the couch. Both A.S and J.H. testified that in 2017 and 2018, A.S. and J.H. were romantically involved and shared a bedroom. The girls shared the second bedroom and Angelica and her family slept on the couches. In my view, these inconsistencies are truly peripheral to the allegations and given the number of people living in that residence over different time frames, it is the kind of mistake one would expect and does not, in my view, detract from S.S.’s reliability as it relates to the core of the allegations before the court.
53The final piece of evidence that must be addressed is the evidence about the dream. The issue of S.S. telling her mother that this all might have been a dream first arose when counsel for J.H. opposed the Crown’s 715.1 application. One of counsel’s reasons for opposing the application was because they had evidence that A.S. had told the CAS workers that S.S. told A.S. that it all might have been a dream. Despite knowing this, the police failed to ask any questions about it during their interview with S.S. Crown counsel argued at the time that his could be dealt with in cross-examination. It was very clear that this was an important issue, and that defence counsel would ask S.S. about it.
54Despite knowing this, Crown counsel did not ask S.S. any questions about it during his examination in chief. This was a tactical decision made by the Crown. In cross-examination counsel for J.H. asked S.S. whether she had told her mom that she thought it all might have been a dream. S.S. replied that she did tell her mom this. Counsel for J.H. then asked S.S. if she was telling the truth when she told her mom this and S.S. replied that she was telling the truth.
55Crown counsel then sought to re-examine on this point. I had some concern about the Crown addressing it for the first time in re-examination when he had been clearly put on notice that this was an issue. In order to ensure a fair trial for all parties, I allowed the Crown to re-examine on this point, but also advised that I would allow defence counsel to ask further questions arising from this re-examination.
56In re-examination Crown counsel asked S.S. if the sexual assault she testified to was a dream. S.S. replied, “no”. Crown counsel then asked why she told her mother that she thought it was a dream. S.S. replied that she thought her mom thought she was lying. This, in my view, is somewhat consistent with how A.S. described the conversation and supports the finding that S.S. never thought it was a dream and was not being truthful when she said it might have been a dream. In light of this now apparent inconsistency, counsel for J.H. asked some additional questions on this point.
57Counsel for J.H. asked S.S. whether she was lying to her mom when she said she said it might have been a dream. S.S. replied, “no”. He then asked, “were you lying to me yesterday when you said you were telling the truth to your mom” and S.S. replied “No”.
58The following exchange then occurred:
You said you were telling mom the truth when you said it was adream? Yes, it might have been a dream but it is not
Why do you say it might have been a dream? You are confusing me. All I know is that it is not a dream.
But you told your mom the truth when you said was a dream? No, I thought it was a dream
So you thought it was a dream? Yes
59Crown counsel argued that I should place no weight on this inconsistency because the only inference from this exchange is that S.S. was confused by the questions. Respectfully, I disagree. I appreciate that one inference is that S.S. became confused by the questions. I am also mindful that S.S. was pointing out the distinction between saying “it was a dream” and thinking it “might have been a dream”. However, what remains, is that S.S. testified that she knows that what took place was not a dream and only told her mom that she thought it might be a dream because she was worried her mother thought she was lying. S.S. also testified, however, that she was being truthful with her mother when she said it might have been a dream. Is this a signal that perhaps S.S.’s definition of truth and a lie are different from an adults? Is it possible, that in S.S.’s mind an untruth told to help someone is not a lie? Or that somehow saying “it might be” makes it not a lie. I do not know. I cannot speculate. While this one piece of evidence is not determinative, it is another inconsistency on an important fact that in my view detracts from the reliability of S.S.’s evidence.
60As I have now stated many times, S.S. was a credible witness. There were some compelling elements to her evidence. How does someone her age know about putting a penis in her bum if it did not happen. How did she know to demonstrate the act if it did not happen. Why falsely accuse a man she has not seen in a long time? These questions make it more likely that S.S. is telling the truth. Having said that, J.H. is not well positioned to answer these questions as he has not been in S.S.’s life in any meaningful way for a long time.
61In my view, there were some significant reliability issues with S.S.’s evidence that must be considered. That is not to say that I reject her evidence, as I do not. I highlight this because the Crown has argued that her evidence was so reliable that it would be unreasonable to be left in a doubt by J.H.’s evidence. Despite the exceptional submissions of Crown counsel, I respectfully disagree.
62J.H. was, in my view, an exceptional witness. He admitted to bathing S.S. He admitted to having opportunity to commit these offences. He even admitted to spanking S.S. and that at the relevant time he was facing his own challenges and was not well positioned to parent his daughters. Nothing arose during his evidence that gives me cause to reject his evidence. Moreover, while I do not reject S.S.’s evidence, given the reliability issues noted above, S.S.’s evidence, when considered with all the other evidence, does not lead me to reject J.H.’s evidence.
63When I consider all the evidence in this case, I am left in a doubt about whether or not J.H. sexually abused S.S. and as such I find him not guilty of the offences.
Released December 4, 2025 _____________________________
Justice Mara Greene