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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
CITATION: R. v. S.P., 2025 ONCJ 674
DATE: 2025 12 17
COURT FILE No.: Kenora 1511 998 24 15100559
BETWEEN:
HIS MAJESTY THE KING
— AND —
S.P.
Before Justice Evelyn J. Baxter
Heard on October 1 & 2, 2025
Reasons for Judgment released on December 17, 2025
Özlem Eskicioglu............................................................................... counsel for the Crown
Aaron Seib for the defendant............................................................................................. S.P.
Baxter J. orally:
1Mr. S.P. stands charged with 1 count of sexual exploitation and 1 count of sexual assault against a minor female, A.C. The Crown proceeded summarily. The trial was heard October 1 and 2, 2025 in Kenora.
2Admissions were made to indicate S.P. is the person charged with this offense that is alleged to have occurred in Kenora between December 26, 2018, and January 31, 2019.
3S.P. is accused of touching the genital area of A.C., under her clothes, while she was asleep on S.P.’s couch sometime between the above noted dates, when A.C. was about 9 years of age.
4S.P. was known to A.C. because he was, at the time, in a relationship with A.C.’s “aunt”. A.C. regularly had sleepovers at S.P.’s home with his then partner because A.C. preferred to sleep over to occasionally escape her mother’s struggles. A.C. and her mother resided with her mother’s former foster parents. A.C. called them her grandparents, and A.C. referred to S.P. as her uncle.
5S.P. denied the allegations. It was his position A.C. was mistaken that he touched her genitals while she was sleeping. He maintained A.C. mistook his picking her up under her legs and neck/back when he moved her from the couch to a mattress on the living room floor after A.C. sometimes fell asleep on the couch while watching movies with him and A.C.’s aunt.
6A.C. gave her statement to police on August 8, 2023, when she was 12 years old. At trial she was 15 years of age. In her video statement, A.C. promises to tell the truth, and the officer tested A.C.’s ability to correct incorrect information and to express when she does not understand or know something.
7A.C. adopted her video statement at trial and testified the statement was true and accurate and did not make any changes to it. She recalled waking up one night to S.P. putting his hand under her pajama shorts and touching her genital area. When A.C. woke, he told her to go back to sleep and called her “Kiddo”. A.C. said at first, she was confused and scared, but went back to sleep as instructed. She thought she should have yelled for her aunt but did not.
8A.C. said she was wearing purple shorts pajamas. The shorts had stars on them and the top had some writing on it she could not recall. She had fallen asleep on the couch after watching a movie with her aunt and S.P. They had gone to bed, and A.C. surmised S.P. must have gotten up at some point to get a drink or use the bathroom.
9A.C. described the couch and the living room where the incident occurred. She awoke to being touched by S.P. He was sitting by her feet as he touched her with his hand on her “private area”. She described him touching her “vagina” in “weird places”. She went back to sleep and woke up in the morning, and S.P. was gone to work.
10A.C. said she stopped going for sleepovers until about 2021 and avoided S.P. if he came over to her house for dinner. He acted like everything was “normal”. A.C. told police she confided what happened to a friend of hers about one year before the statement, and she told other friends about 2 weeks before the statement. She said three of her friends have been through the same thing. There was no further elaboration on this point.
11A.C. told police how her mother found messages A.C. exchanged with a cousin of hers. She did not provide police with the messages, nor did she elaborate on what the messages said. A.C. also described when telling her aunt a few days before the statement, her aunt did not believe her and found the disclosure “convenient” now that she and S.P. had broken up.
12She said she did not tell anyone about what happened because she was afraid if she told, it would break up the family.
13At trial A.C. said when S.P. told her to go back to sleep, she closed her eyes, and he was still touching her. She fell back to sleep and woke up in the morning, and he was gone.
14She maintained she stopped going for sleepovers, but continued with the family activities such as fishing, snowmobiling and family dinners. A.C. said she avoided being alone with S.P. out of fear it could happen again. In 2021 she resumed sleepovers once she realized nothing was going to happen as “everything was back to normal”.
15With respect to family dinners, she agreed with the Crown she would not eat at the table with everyone but would take her meal up to her room. The reasons A.C. gave for this were that the house was crowded when the family dinners happened, and there was no room to eat with everyone, and sometimes it was to avoid being around S.P..
16A.C. could not recall when her mother found the messages on her phone but said a year passed between her mother finding the messages and A.C. giving her statement to police.
17In cross-examination, A.C. agreed she could recall sleeping on a mattress in the living room after watching movies with S.P. and her aunt. She acknowledged sometimes S.P. would pick her up and move her to the mattress if she fell asleep on the couch. She agreed she was a heavy sleeper and would not remember being moved, but knew she had been moved because she would wake up on the mattress.
18A.C. did agree there was an air mattress and a regular mattress at some point, but she could not remember how often she slept on them.
19A.C. did get defensive and frustrated at the questions she was being asked by defense. Her tone was not the same as when she was being questioned by the Crown.
20A.C. said she remembered S.P. buying her a snowmachine but could not say what year that was. She would not agree she and he were alone when S.P. showed her how to operate the machine. She did agree he took her out in his truck and let her try to drive it once, and she was about 10 or 11 at the time.
21When A.C. was asked if she told her grandfather what happened she said she did not, and that she did not tell him S.P. was on the mattress with her when something happened. A.C. said she was laying on the couch when S.P. touched her. Then she said she was sitting on the couch, and he started touching her.
22A.C. confirmed her nickname for S.P. was “Uncle No” and his for her was “A…R…Stinky Toes”. Her grandfather called her “kiddo”.
23A.C.’s mother testified for the Crown. A.C.’s mother was looking through A.C.’s phone one day and came across some messages between A.C. and her friends where A.C. revealed something had occurred between her and S.P. A.C.’s mother became upset at what she read and confronted A.C. about the messages. She also confronted her parents and her foster sister, S.P.’s then partner. A.C.’s mother held S.P. in high regard as a family member until the allegations came to light. She provided a statement to police about 6 weeks after she discovered the messages.
24A.C.’s mother was upset about the messages and told A.C. she would not get her phone back unless she told her what happened with S.P..
25The messages were not produced to defense or to the court. No s. 276 application was brought in this matter.
26When asked if A.C. is a deep sleeper, her mother said, “Oh my goodness, yes”.
27A.C.’s mother confirmed she suffers from substance use issues, mercury poisoning, and “fetal alcohol syndrome” which makes it difficult for her to understand “fast” words.
28Approximately six weeks after discovering the messages, A.C.’s mother went to her parents’ home intoxicated. She caused a disturbance outside the house yelling about the alleged incident. Police were called, and A.C.’s mother was arrested on a warrant and removed from the home. A.C.’s mother gave a statement, and the investigation commenced.
29Under cross-examination, A.C.’s mother confirmed A.C. told her S.P. was on the couch with A.C., pinned her down, and she had to fight him off. The part about having to fight off S.P. was not in A.C.’s mother’s statement to police.
30According to A.C.’s mother S.P. did a lot for A.C. and was present for A.C.’s birth. He was an important member of the family. She also said A.C. did go to S.P.’s home regularly to give her parents a break and to spend time with her sister and S.P. Since S.P. worked for the railway, he was not home very often, so it would usually be her sister and A.C. having sleepovers. She also said if S.P. and her sister had adopted A.C., it “would be good for them”.
31A.C.’s mother told the court she and S.P. were close, and she felt he was part of the family until he and her sister broke up. When she learned from A.C. what she alleged occurred between them, A.C.’s mother could not believe S.P. could do such a thing and thought it might have been a brother of hers who may have sexually assaulted A.C.
32S.P. testified. He told the court he has known A.C. since birth as he was her aunt’s common law spouse for 13 years. He and A.C.’s aunt lived in Keewatin, and he worked for the railroad. A.C.’s grandparents, her aunt and S.P. raised A.C. from about age 4 or 5 because A.C.’s mother was struggling with substances and her own personal issues.
33S.P. was nicknamed “Uncle No”, because he was the only person who told A.C. “no”. He said she and he were close, and he wanted to keep her safe and be a father figure for her. He confirmed the family discussed he and the aunt adopting A.C., but in the end, they decided it would not be appropriate to take A.C. from her mother, but rather to all help in raising A.C.
34When A.C. slept over at S.P.’s home, it usually came about after a family dinner at A.C.’s home where she would ask to have a sleepover. Her bag would be packed, and A.C. would leave with S.P. and her aunt. Because S.P. worked a lot and was away on the railroad, he was not present for all sleepovers, but said they occurred at least every 4 to 6 weeks that he was aware of. It was a form of respite for the grandparents, because A.C.’s mother was often not around, given her personal circumstances.
35S.P. said the sleeping arrangement when he was not home was A.C. slept on the living room couch, but if he was home, A.C. was expected to sleep on an air mattress in the living room, and later, on a regular mattress in the living room. The regular mattress was stored standing up against the wall of the bedroom.
36When A.C. slept over, and S.P. was home, he said the three of them would stay up watching movies sitting together on the couch. A.C. liked scary or action movies. A.C. would then sleep on the mattress so S.P. and her aunt could continue watching movies. If A.C. fell asleep on the couch, S.P. would pick her up under her knees and back/neck areas and place her on the mattress so there was more room on the couch for him and A.C.’s aunt.
37S.P. denied he ever touched A.C. inappropriately or in the manner she alleges. He said she was a deep sleeper and hard to rouse. Despite this, S.P. noted it was possible A.C. may have woken up while he was moving her from the couch, but he was not sure.
38After January 31, 2019, S.P. could not recall the routine of sleepovers, family outings, family dinners, shopping trips and other activities ending or changing in any notable way with A.C. He also said he bought A.C. a snowmachine and taught her to drive it. They still spent some time alone together. He recalled A.C. used to braid his beard and hair.
39S.P. said he found out about the allegations via a Facebook post A.C.’s mother put up. He said he felt disgusted and shocked by the post. He had “no clue” what she was “talking about” in the post.
40S.P. and A.C.’s aunt’s relationship ended in 2022, before the allegations came to light. Their relationship ended for other reasons.
41In cross examination, S.P. said he could not recall A.C. wearing shorts to sleep. He said she usually slept in sweatpants.
42When watching movies, A.C. typically laid on the chaise lounge end of the couch, while he and her aunt sat on the other part. A.C. did not lay across the length of the couch. A.C. often stayed awake to about 10 or 11 pm, after which she would be put to bed on the mattress so that S.P. and the aunt could stay up longer and have more room on the couch.
43S.P. agreed A.C. was a heavy sleeper, so much so he and the aunt could continue to watch movies, talk and move about the apartment without disturbing A.C. He also noted he and the aunt always went to bed together, and on occasion A.C. would stay up later than they did. He cannot recall if A.C. slept on the couch after they went to bed. He disagreed he ever went back out to the living room after his partner fell asleep to sexually assault A.C..
44A.C.’s grandfather testified. He confirmed A.C. often asked to sleepover at S.P. and his daughter’s apartment. It occurred every 4 to 5 weeks, usually on Friday nights after a family dinner. As was said by other witnesses, the family had dinners at the grandparents’ home 3 to 4 times per week. He and his wife took in A.C.’s mother and 2 of her siblings when they were children. They consider A.C. and her mother to be their daughter and granddaughter respectively.
45The grandfather also confirmed A.C.’s mother has had substance use and mental health issues that have gotten worse over the years after A.C. was about 2 years of age. Despite these challenges, A.C.’s mother is still welcome to the home as long as she is sober. She spends time with A.C. when she can.
46The grandfather said A.C. would never have a sleepover alone with S.P. A.C. and S.P. got closer as she got older. S.P. was stricter with A.C. and would tell her “no”, hence the nickname he got from A.C. Over time, S.P. became A.C.’s favourite.
47As for the allegations, the grandfather said A.C.’s mother accused him of not protecting A.C. from S.P., and he did not know what she was talking about. He was caught by surprise by the allegations and maintains that A.C. or someone is “misremembering” something.
48He asked A.C. what happened, and A.C. told him something happened on the air mattress but gave no details. The grandfather said A.C. will not talk about the allegations.
49In cross-examination, the grandfather was surprised when he was questioned about the phone messages A.C.’s mother said she saw on A.C.’s phone. He did not know about them, nor had anyone shown them to him. He did recall when the allegations came to light that A.C. and her mother were up in her bedroom for about 2 days talking. They did not come down for meals. The grandfather said A.C.’s mother often lies. He added he did not see any changes in A.C.’s behaviour, school work, or routine.
50A.C.’s grandfather was also surprised in cross-examination the allegations are from 2018-2019. He had no idea when this incident was alleged to have occurred. He reiterated he saw no changes in A.C. In fact, A.C. spent the past year living with her mother, but A.C. got frustrated with her mother’s lifestyle and returned to her grandparents’ home a few weeks before the trial.
51A.C.’s grandfather also refuted his daughter’s claim she liked and got on well with S.P. S.P. did not agree with A.C.’s mother’s choices and her inconsistent time with A.C. A.C.’s grandfather said his daughter usually contacted S.P. when she wanted money, or a ride to places, but they were not overly close in his opinion.
Defense submissions:
52This is a “WD” case. The evidence of A.C. is problematic given the inconsistent reporting of what allegedly occurred. A.C.’s statement is she fell asleep on the couch, and she awoke to S.P. sitting at her feet touching her vaginal area, and then he told her to go to sleep, calling her “kiddo”.
53After playing the statement, A.C. was asked if anything needs clarification. She said no. The Crown then gets slightly different version in that the touching continued after she fell back to sleep. S.P. called her “Kiddo” and told her to go back to sleep – S.P. did not use that nickname for A.C. All witnesses agreed when A.C. is asleep it is hard to wake her up. She is a deep sleeper.
54The other witnesses were told things by A.C. They have no reason to lie or fabricate what they were told. A.C. told her mother a different, more serious, version of events. She was told S.P. pinned her down and she had to fight him off. A.C.’s mother confirmed this. Clearly, A.C.’s mother believes this happened to A.C..
55A.C.’s grandfather says he did not know the full story either. He thought it happened on the mattress. A.C. was adamant it happened on the couch in her statement and in court. She was adamant she was not inadvertently touched by S.P., and she could not have misconstrued it.
56There is a possibility there was some form of innocent contact when S.P. moved A.C. from the couch to the mattress, and over time A.C. thought about it, talked to others and has since convinced herself something worse happened. This sounds like memory bias, in that A.C. is shifting her memories to support her version of events. A.C. thinks this happened. She is never going to admit this didn’t happen.
57Memories are fallible and generally do not improve over time. A.C. told the court she stopped going for sleepovers for 2 years because she was afraid to be alone with S.P. This assertion is not supported by the evidence of the defense witnesses. No change in her behaviour or how she acted toward S.P. was observed.
58A.C. did not fully agree S.P. and she were alone together when he showed her how to drive the snowmobile. Snowmobiling, fishing, and other family outings with S.P. continued, even shortly after the incident was alleged to have occurred.
59S.P. had a clear story about what happened. His evidence is supported regarding the continued contact. The grandfather’s evidence corroborates S.P.’s evidence, particularly about the continued contact and family outings. Moreover, he was under the impression the incident occurred on the mattress. I was invited to disregard the grandfather’s opinions about the veracity of A.C.’s allegations.
60Defense also pointed out no explanation was given regarding the texts or the Snap Chat messages, because they were not disclosed - if they even existed. Defense further queried why weren’t the aunt and grandmother interviewed or called to testify. These are gaps that may show the Crown did not prove its case beyond a reasonable doubt.
Crown Submissions:
61The Crown, in both its oral and written submissions, argued no evidence of a motive to fabricate exists here, and the accused is not expected to prove one. A.C. came to court and testified, and she is credible and reliable despite the frailties in her evidence.
62She recounted what happened concisely and clearly in her statement and in her court evidence. She did not add unnecessary details. She was honest if she did not remember things.
63Inconsistencies vary in their nature and importance. Major changes in evidence are cause for concern. In this case, the inconsistencies in A.C.’s evidence or with the other witnesses are not material. Her core allegations are clear and intact throughout. She did not waver on the fact the incident took place on the couch.
64A.C. told the Crown how S.P. came to touch her vaginal area, which is not in her statement, because police did not ask her that. Also S.P. continued to touch her after he told her to go back to sleep. Police also did not ask her that. These extra details do not amount to an inconsistency. The police ask questions to form grounds while the Crown asks questions to prove its case beyond a reasonable doubt. Moreover, it is not fair to expect a young girl to go through her statement to see what changes need to be made. It remains up to the Crown to get that information out of her.
65A.C. remembered the air mattress being used before the other mattress. S.P. wasn’t sure when they got the new mattress.
66A.C. was not asked what she said to her friends or what they said to her. We don’t know what, if anything, she pieced together. Nor was she asked what she told her mother or grandmother. This issue is not determinative of her credibility or reliability.
67The court should not believe the mother on the version of events she presented. Her challenges can affect her reliability. A.C. wasn’t given the opportunity to respond to her mother’s understanding of the allegations given it is so different from A.C.’s own account.
68A.C. said she stopped the sleepovers. She did agree she continued the other activities. She did not want to be alone with S.P. In her mind it may seem she stopped sleepovers. This inconsistency goes to peripheral details and is not vital in the final analysis. Therefore, the court can find S.P. guilty of the offenses beyond a reasonable doubt.
Analysis
69A criminal trial is not a credibility contest, in which the Court picks the version of events it prefers more. Nor is it a question of which version the Judge thinks is more likely. Rather, the question in this case is whether the Crown has established beyond a reasonable doubt that S.P. is guilty of the offences charged. The trier of fact’s task is not to choose between the two competing versions of events: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. If after a careful consideration of all the evidence, I am not sure or satisfied the Crown had proven beyond a reasonable doubt that S.P. committed the offences, I must find him not guilty.
70As previously stated, the sole issue in this trial is whether S.P. sexually assaulted and sexually exploited A.C., a child under the age of 16. S.P. is presumed innocent. He remains innocent unless and until the Crown has proven the offences beyond a reasonable doubt.
71It is not enough for me to believe that S.P. is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. Reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. Reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. It is based on reason and common sense and must be logically connected to the evidence or its absence.
72S.P. testified in his own defense. He maintained he did not touch A.C.’s genital area under her clothing while she was asleep on his couch in both his evidence in chief and in cross examination. The law is clear that if I believe his evidence, then I must acquit. Moreover, even if I do not believe S.P.’s evidence, I must consider whether I am left with a reasonable doubt by his evidence. If so, then I must acquit. Finally, even if I am not left with a reasonable doubt by S.P.’s evidence, I must ask myself, based on the evidence that I do accept am I satisfied beyond a reasonable doubt of his guilt. If not, then I must acquit. (See R. v. W. (D.), [1991] S.C.R. 742].
73Sexual assault cases, by their very nature, often lack witnesses apart from the complainant and the accused person. These cases often come down to two differing versions of events.
74As in all cases, the court must assess the credibility and reliability of the evidence of the witnesses. However, this analysis does not create a credibility contest between A.C. and S.P. I am not permitted to decide this case based on which version of events I prefer.
75Credibility relates to the honesty or veracity of a witness, whether the witness is expressing themselves truthfully to the best of their ability.
76Reliability relates to the accuracy of a witness’ testimony - whether a witness has a strong recollection and memory of the event, whether they can recount details, and whether they are accurate.
77A witness who fails to tell the truth is not credible and not reliable. However, a witness who tries to tell the truth to the best of their ability, and believes the truth of what they are stating, may be mistaken in their recollection. Witnesses may be convinced they are right but may still be wrong when faced with contradicting extrinsic evidence. A credible witness may give unreliable evidence. (R. v. H.C., 2009 ONCA 56). Evidence must be both reliable and credible to support a finding of guilt beyond a reasonable doubt.
78In assessing the credibility of a witness, I must consider any inconsistencies in their testimony whether internal or with prior statements. Inconsistencies on minor matters may be of less importance and not affect the credibility of a witness. However, inconsistencies that impact material issues can lead to a finding that a witness is not credible or reliable.
79The Supreme Court of Canada in R. v. Kruk, 2024 SCC 7, provides guidance to judges when assessing the credibility and reliability of witnesses. Martin, J.A., writing for the majority and reviewing earlier decisions, held that “testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence” (see para. 72). This includes relying on reason and common sense, life experience, and logic in assessing credibility. In recognizing the importance of assessing credibility and reliability, she identifies the difficulty in sexual assault cases, which often “hinge on the contradictory testimony of two witnesses” (para.81).
80As the above authorities make clear, I may believe all, some, or none of the testimony of a witness, including an accused person. If I am unable to decide who to believe, I must acquit.
81I turn now to the first prong of R. v. W.D., and whether I accept, S.P.’s evidence.
82In examination-in-chief, S.P. testified in a straightforward and credible manner in response to questions from his lawyer. His version of events seemed plausible. He remained steadfast and unshaken regarding events that occurred in his home and that he never touched A.C. inappropriately and that A.C. must have misinterpreted his actions when he moved her from the couch to the mattress.
83In cross-examination, S.P. presented calmly and was not defensive. He answered the Crown’s questions and appeared polite and forthright. This was demonstrated as follows:
S.P. was not defensive.
S.P. never raised his voice nor projected in an argumentative tone in response to questions.
S.P. gave consistent answers to questions
His evidence about the family activities, A.C.’s behaviour etc. was corroborated by the other witnesses
84I am cognizant that people present and react differently when testifying in an adversarial process and have considered that in my assessment of S.P.’s credibility.
85I do accept some of S.P.’s testimony. Therefore, I must move on to the second prong of W. (D.).
86Whether S.P.’s evidence raises a reasonable doubt when considered with the other evidence?
87I now assess S.P.’s evidence in the context of all the other evidence. If, after doing so, his evidence leaves me in a state of uncertainty that I am unsure where the truth lies, I must find S.P. not guilty. In other words, if I am unable to resolve conflicts in the evidence in relation to an essential element, that means there is a reasonable doubt. Uncertainty as to where the truth lies leaves a reasonable doubt.
88A.C. gave her evidence in a quiet manner. A.C. appeared to make best efforts to tell the truth and recall the events of that evening as clearly as possible. She did not use many words to convey her evidence. When she did not understand a question, she asked for clarification or for the question to be rephrased. She corrected counsel if they misunderstood her. In cross-examination, A.C. did get defensive and became annoyed or frustrated with counsel. Her tone of voice changed, and she appeared less willing to answer questions.
89There were some inconsistencies in A.C.’s evidence, but she did provide explanations for some that made sense and were reasonable. I account for her age and the passage of time since the incident to the statement to the trial to understand children do not necessarily recall details and events the same way adults can. I am aware children can perceive timelines and chronology differently than adults do.
90I am mindful as well, that the incident was alleged to have occurred sometime in 2018 to 2019. A.C. would have been about 9 years old. She then gave a statement nearly 3 years later, when she was 12, and three years after that, she appeared in court to testify at this trial at age 15. Memories do not tend to improve over time, and the memories of children can be more difficult to rely upon for the reasons stated above.
91Other inconsistencies did not impact A.C.’s credibility but raised questions regarding her reliability. In addition, there were aspects of A.C.’s evidence that raised questions rather than provided answers. The following are examples of some of the inconsistencies and areas of A.C.’s evidence that left me uncertain when I considered the entirety of the evidence including the testimony of S.P.:
A.C. said the incident took place on the couch while she was sleeping and she went back to sleep, but at trial she also said she drifted off to sleep still aware S.P. was touching her.
A.C. was described, and she agreed, she is a deep sleeper who is hard to wake.
At one point she testified she was laying on the couch, and then said she was sitting on the couch.
A.C. said S.P. called her Kiddo that night, but that was not his nickname for her.
A.C.’s mother was under the impression S.P. pinned A.C. down, and A.C. had to fight him off.
The grandfather was under the impression the incident took place on the mattress.
A.C.’s claim she stopped sleepovers and would not be alone with S.P. is not corroborated by any of the other witnesses.
A.C. was reluctant to agree she was alone with S.P. after the incident when he showed her how to drive a snowmachine and let her drive his truck.
92While I find A.C. to be credible, insofar as she believes what she is saying, I have difficulties with her reliability. The aspects of her evidence I have identified, when considered with other evidence, leaves me with concerns regarding the reliability of A.C.’s evidence.
93I accept some of the evidence of the mother and grandfather as well. Their evidence overall was presented to assist in some factual background, the family dynamics and their impressions or understanding of the situation. In some ways their evidence helped both A.C. and S.P.
94As stated earlier, a criminal trial is not a credibility contest. Rather, it is whether the prosecution has proven its case beyond a reasonable doubt.
95I have concerns regarding some of the evidence of S.P. I am not able to say I believe all, or parts of his evidence. However, there are portions of his evidence when considered with the totality of all the evidence that are plausible and make sense. I am not permitted to speculate or guess what I think likely happened but am restricted by the evidence before the Court, or the lack thereof.
96I am also aware that although I find S.P.’s evidence and his explanation of why A.C. might think something untoward happened plausible, that is simply one factor in assessing the overall impact of the evidence as a whole. The only question for the trier of fact at the end of the trial is, whether, on the whole of the evidence, the Crown has proved its case beyond a reasonable doubt. (R. v. D. (D.O.) 1993 CanLII 46 (SCC), [1993] 4 SCR 419 (SCC), par. 81)
97In addition, I must consider the theory of the defense in that A.C. may have had a motive to fabricate or to mold her memories to fit with the stories her friends shared with her about their experiences. When her mother found the messages, she told A.C. she was not getting her phone back until she told her what happened. Her mother did not want to know what happened, yet she threatened A.C. with taking her phone away. A.C. may have felt pressured to tell her mother something in order to have her phone returned. On the other hand, I am mindful A.C. said she did not tell anyone for fear of “ruining” the family.
98Having considered the totality of the evidence, I am uncertain where the truth lies. Collectively, I am not satisfied of S.P.’s guilt beyond a reasonable doubt. Because I have determined S.P.’s evidence is plausible when considered with the other evidence, I do not need to consider the third prong of W.(D.) to consider whether based on the evidence that I do accept am I satisfied beyond a reasonable doubt of his guilt.
99Therefore, I find S.P. not guilty. I want to be clear that this is not a positive finding that A.C. lied. I accept she believes what she perceived happened to her as true; however, I find the Crown has failed to discharge its burden of proof beyond a reasonable doubt.
Released: December 17, 2025
Signed: Justice E.J. Baxter