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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
BETWEEN:
HIS MAJESTY THE KING
— AND —
I-B.(W.)
Before Justice J. De Filippis
Heard on May 16, June 2, 26, 27 & August 22, & November 10, 2025
Reasons for Decision on Gardiner Hearing released on December 19, 2025
Mr. B. Sosa counsel for the Crown
Mr. B. Monk counsel for the accused
INTRODUCTION
1This decision includes disturbing descriptions of child sexual abuse.
2The defendant was charged with Sexual Assault, Sexual Interference, and Sexual Exploitation, involving one victim, between January 1, 2018, and August 20, 2023, at the City of Hamilton and elsewhere in the country.
3The allegations cover a five-year period. The final event, on August 20, 2023, was surreptitiously video recorded by the victim. The defendant pled guilty to the three charges, on a limited basis. Specifically, the defendant admits the following: The victim was born in 2007. In August 2023, the victim lived with her mother and the defendant in Hamilton. The defendant is her stepfather. The defendant has two children from a previous relationship, W.V. and S.V. In early August 2023, the victim told these stepsiblings that their father had been touching her, including sexual intercourse. The three teenagers discussed the matter, and the victim decided to record the next encounter with the defendant. On August 20, 2023, the victim set her desktop computer to face her bed and secretly filmed the sexual assault that occurred that day. Two days later, her stepbrother, W.V. took the video record to the police and reported the sexual abuse by his father.
4At the time of this video recorded event, the victim was 15 years old. The record is 29 minutes and four seconds in length. It shows the following:
The victim sits on the bed and stares at the camera. Two minutes later, the defendant enters the victim’s bedroom, without a shirt. He removes his pants, revealing his penis and lays on his back and begins to masturbate. The defendant moves his arms to his groin area in what appears to be a signal to the victim. The victim is next seen wearing only a top. She sits on the defendant’s erect penis with her back to him and facing the camera. The victim bounces on the defendant’s penis with her arms folded. The victim switches position and gets on her hands and knees while the defendant stands and penetrates her vaginally from behind. This continues for twenty-six minutes and thirty-nine seconds as the defendant becomes more aggressive in the penetration and then slows down. The victim has her face buried in the mattress for this period. The victim pushes the defendant’s left arm away from her lower back, stands up, and walks away. No words are spoken during the entire incident.
5The defendant acknowledges the accuracy of the video record. He admits that the sexual abuse began within the preceding year. He denies any sexual abuse in the preceding four years. In accordance with his plea and admissions, I found the defendant guilty of the three charges in the one-year period up to August 20, 2023. A “Gardiner Hearing” was held to determine if the defendant is guilty of sexual abuse in the four years between 2018 and 2022. At this hearing, the, victim her mother, and defendant testified.
THE VICTIM’S EVIDENCE
6The victim is now 17 years old. Her interview with the police about this matter, conducted when she was 15 years old, was video recorded. It is about 80 minutes in length. That video was played in Court and adopted by the victim as truthful and accurate. The victim’s statements, include the following:
Her mother met the defendant in Honduras when the victim was about eight years old. He visited from Canada. They spent a night in a hotel room, with two beds. During the night, the defendant left the bed shared with the victim’s mother and went to the victim’s bed. He rubbed his fingers down her lower back. Her memory of this incident is unclear.
Within two years, her mother had married the defendant, and they joined him in Alberta. The defendant’s place of employment was a great distance from the matrimonial home. He was away for weeks at a time and would come home for two days at a time. This is when “he would do it”….He just asked me to come to his room. He, like, touched me and he will try to put his penis in my vagina. But he was, like careful, with it. He, like he didn’t, like want to hurt me. Like he didn’t want to, like, penetrate and hurt me. He just wanted to take it slow”. However, the defendant did not penetrate her until they later moved to Hamilton. The victim noted that her mother worked at a hotel while they were in Alberta but added, “I don’t know where my mom was, to be honest, in this whole situation”.
In Hamilton, the family moved to the basement apartment of a house. The defendant’s two children from another relationship lived in the area and stayed at the basement apartment on weekends. The defendant initially did not have a job. The victim’s mother had two jobs. This apartment is where the defendant first inserted his penis in the victim’s vagina: “Like, we just kept doing it, to be honest. And then he tries to convince me to do for, I don’t know how to say this, not vagina, more like the other type…Like, the back door, okay….my ass…I really didn’t want to do it but he just kept bugging me about it, so I was like, ‘Sure’. And he tried to but it really hurt….at the point, that I end up crying”….And then he keep asking me to do it. And then sometimes, I said, no so, then I said yes. But it always hurt. He was trying to get in but he couldn’t. But it always hurts so bad” .
These events in Hamilton occurred once or twice a week, in the morning, mainly on weekends, sometimes, in the defendant’s bedroom but, more often, in the victim’s bedroom. The victim’s mother left for work at 7 AM, and on weekends, her stepbrother left for work as early as 5 AM. The defendant would say “come on, let’s do it” or “Vaminous” in Spanish. The victim took her own clothes off: “I don’t want him to touch me so I take my own clothes off. Until the process of doing it, I don’t like, kissing him, or like, he always try to, like grab my boobs. I always, like, try not to looking at him because I’m just really disgusted at what I’m doing”
The victim told her step siblings about the abuse, and they urged her to get proof and to report it. This concerned her: “I’m scared. He is important to my mom, and he is the one, like, my mom doesn’t know any English. So, without him, we are like, financially not good. My mom works two jobs. And, she doesn’t get good pay.” When the defendant told her they were going to “do it” the next day, she decided to video record the event: “I didn’t sleep the day before of it”.
The defendant penetrated her vagina from behind but “couldn’t finish”: “normally…it’s mostly on my back. He just comes on my back and that, and I clean it up after. And that’s it”
7In addition to adoption of this prior statement, the victim testified that in Alberta, it “first started with oral…it was…disgusting because it produced milk…come, ejaculate”. She said that “sometimes he would put his penis in my chest area and try to come [but] half the time he never came”. The “oral happened more than once, just a guess, maybe 6 or 7 times” and “in Hamilton – three times, maybe”.
8On day before the secret video was taken, the defendant told her they would be doing it “normal”. Normal, meant vaginal intercourse and “from behind” that meant anal. The victim testified that the video record represents incidents of normal sex, including the length of time.
9The victim was challenged about her account of sexual abuse before 2022. She rejected the suggestion that it began about one year before the events surreptitiously recorded on video. The victim agreed that her mother was in the hotel room when she claims the defendant touched her in Honduras. She also agreed that after they moved to Alberta, the defendant was away from home for weeks at a time, returning for a few days at a time. Yet, in her adopted statement to the police she said the abuse happened once or twice a week in Alberta. The victim said the defendant would touch her when her mother was working at the hotel or taking English lessons but added that on one occasion her mother was at home when the defendant “touched” her in her bedroom. She conceded that in her statement to police she said her mother was never home when the abuse occurred in Alberta.
10The victim insisted that when the family moved to Hamilton from Alberta in 2020, the “sex just continued” but a few months passed before it progressed to penetration. She was unable to recall specific dates and explained “I tried to block this out”. The victim testified that the defendant repeatedly asked for anal sex and tried to do so five or six times and then added she cannot recall how many times this happened. He never succeeded in penetrating her anus.
THE DEFENCE EVIDENCE
11The defendant was born in Honduras and is a Canadian citizen. He testified that he met the victim’s mother in 2010 in Honduras. They began dating in 2013 and were married in 2015. In 2018, the victim and her mother joined the defendant in Alberta. The defendant worked for a fracking company. A long distance away from the family home. His work schedule was 15 days on and six days off. He returned to the family home for those six days.
12The defendant testified he did not inappropriately touch the victim in Honduras. On one occasion, she stayed with him and the victim’s mother in a hotel room. They were never alone. The victim was in one bed and the defendant and her mother in another. He said that there was no sexual misconduct in Alberta.
13The family moved to Hamilton in late 2020. The defendant’s two children, from a prior relationship, lived in that city. In January 2021, he began work as a delivery driver, beginning at 5:30 am and ending at 7 or 8 pm. He was initially assisted in this job by the victim’s mother until she found a job of her own. The defendant testified that the first time he had sexual activity with the victim was in November 2022. She was 15 years old. Their home at this time was a basement apartment with three bedrooms, one for the victim, another for the defendant and her mother, and a third that was used as an office. The incident happened in the office.
14The defendant described what happened n the office as follows: He was sitting at his computer when the victim came into the room and embraced him: “She put one arm around me and touched the lower part of my body with the other arm…. she was kneeling in front of me and embraced me…I can’t say if she did it intentionally, but it excited me”. The defendant put his arms around the victim and as the victim was leaving the defendant said, “what do you want to do, do you want to do it”. She said, “yes and started taking her clothes off and we did it”. Nobody was home at the time. The defendant testified that, “after I had done it, I felt very bad because I felt I was failing her and my wife and my family….in the next months we did it twice, once in January and once in March [2023].
15The defendant gave a confusing account of how many times he had sexual activity with the victim between November 2022 and his arrest in August 2023. He said some months there was no activity. The activity included “vaginal sex”. He testified that sometimes he instigated it and at other times the victim did so. It always occurred on weekends when his wife was not present. When asked how he felt about this, the defendant replied, “I can’t deny that at the moment if felt good and I can’t deny that after I felt bad…I asked for her forgiveness…It was all my fault because I was the adult, and I did not exercise self control”.
16In cross-examination, the defendant confirmed that he was the primary income earner for the family and was a father figure to the victim. He sexually abused his stepdaughter in the family home eight or nine times over a nine-month period. Vaginal penetration occurred on the fourth occasion. He was able to hide this activity from other family members. The defendant agreed that he never used a condom but added that he “ejaculated outside, in my hand”. He denied doing so on the victim’s back.
17The defendant insisted the sexual abuse began in November 2022. He did not touch her inappropriately in Honduras or Alberta. There was no oral sex or attempt at anal penetration. He repeated that this happened because he was aroused by the victim embracing him. He denied he was aroused by the victim before this date. He conceded that when he became aroused in November 2022, his response was to ask his stepdaughter if she wanted to have sex. With respect to the last, video recorded incident, the defendant denied he had told the victim the day before that they would be having sex. He said, she asked him to do so that morning. The defendant said, “already had the camera set up and that is why she approached him to do it”.
18The victim’s mother confirmed the testimony given by the defendant about when they met and married and the places they lived in Canada. She said that on the one occasion that the victim shared a hotel room with them in Honduras she never saw the defendant touch her daughter. Referencing her work and school schedules, along with the schedules of the defendant and victim, she insisted that the defendant was never home alone with her daughter in Alberta or later, in Hamilton. She added that she never saw him touch the victim inappropriately.
19In cross-examination, the following exchange occurred:
Q: When you were working at the hotel [in Alberta], was [the victim] ever left alone with [the defendant]?
A: No.
Q: You know there is a video of him forcing penetration on your daughter?
A: I heard about that.
Q: Do you accept that is what it captures?
A: Truly, I can’t say anything about the video because I haven’t seen it.
Q: You must know he has pled guilty and said it is him on the video?
A: OK
Q: Do you accept your husband sexually abused your daughter?
A: I know he pleaded guilty, but I haven’t seen the video …[pause]…I accept it happened because there is a video.
Q: It’s hard to accept it happened and you didn’t know.
A: Exactly.
SUBMISSIONS
20The Crown submits that the victim knew that it would take more than her word to prove what the defendant had done to her. She took measures to ensure proof of the offences and stop the abuse. Counsel argues that her narrative makes logical sense – a gradual evolution, over several years, from touching in Honduras, to attempted vaginal intercourse in Alberta to full intercourse in Hamilton. Moreover, her description of the events is convincing; how, in Alberta the defendant told her to take it in her vagina and he would do it slow and how, later, he tried to engage in anal sex that “always hurt so bad”. Counsel also points to the “disturbing amount of familiarity and routine as captured on video”.
21The Crown notes that the defendant’s version of events – that the abuse began in his office in Hamilton when she knelt before him and embraced him was never put to the victim. Counsel suggests this shows “he made this up on the spot when he took the witness stand”. The Crown argues there is a “massive inconsistency” between the defendant’s trial testimony and prior statement to the police with respect to this incident. At trial he denied he vaginally penetrated the victim. He told the police otherwise.
22The Crown suggests that the evidence given by the victim’s mother does not assist in determining the issues. The activities were clandestine, and it is not surprising she saw nothing. In this regard, counsel added that her testimony that the defendant was never alone with the victim cannot be believed.
23The Defence agrees that the demeanour of the parties as captured on the video is important; it is “almost nonchalance and casual and clearly shows this is something that was done before”. However, “this does not defeat the defendant’s testimony about the length of time” that they occurred. Counsel agrees he did not put the initial incident, as described by the defendant, to the victim, but he did challenge her that the abuse did not begin before the move to Hamilton. As such, the “rule in Browne and Dunn” is not violated.
24Defence counsel submits that on the evidence of the defendant and the victim’s mother it was not possible for the defendant and victim to be alone before the move to Hamilton. Counsel notes that the defendant admits to serious criminality and high blameworthiness and argues that this shows he is being honest about the nature and length of time the abuse occurred. Moreover, this is “a W.D. case” and any doubt must be resolved in favour of the defendant.
ANALYSIS
25The defendant admits that events secretly captured on video in August 2023 began with sexual abuse in November 2022. He does not admit doing so in the four years before that. The Crown must prove the expanded allegations. In this regard, I note that probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). If such a doubt exists, the Crown has not discharged its burden of proof. In applying this standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.
26I am satisfied, beyond a reasonable doubt that the defendant is guilty of the offences set as charged in the three counts. The victim’s description of what happened in Honduras is not referenced in those counts and, in any event, her testimony on point is not clear. However, I am confident of her testimony with respect to the sexual activity in Alberta and Hamilton. I reject the contrary testimony given by the defendant. In addition, I have no confidence in the testimony by the victim’s mother.
27The victim provided a consistent and coherent account of being groomed from a young age; it began with inappropriate touching and progressed over the years to oral sex, attempts at vaginal sex, full vaginal penetration, and attempts at anal sex. This testimony withstood cross-examination and was not undermined by other evidence. The victim’s account was not a general one. In assessing credibility and reliability details matter. In talking about the oral sex, she noted “it produced milk” and that “it tasted awful”. In her account of the defendant’s first attempts at vaginal penetration, she recalled that the defendant “went slowly” so as not to hurt her. When he asked for anal sex, she sometimes said no and at other times said yes, but “it always hurt so bad”. She noted that on many occasions, the defendant was unable to “finish” and that he ejaculated on her back. On these occasions, she had to clean it off. The decision to surreptitiously record the final event, was not taken easily because the victim knew the defendant was important to her mother and both depended on him financially. I am confident these and other details are not lies and do not reflect mistaken memory.
28The secretly recorded video confirms the victim’s account. Within a few minutes the parties prepared for sexual activity. Sexual intercourse, in various positions, occurred for just over 21 minutes. The facial expressions and overall demeanour of the parties leaves no doubt that this was just another day – one with a long history, longer than nine months.
29There is only one way to make sense of defendant’s description of what occurred in November 2022. On the day in question the victim came to his home office, knelt and touched him. This aroused him and his response was to ask, “do you want to do it”. The victim agreed and took her clothes off and they “did it”. This may well have happened, but the account can only be believed if the parties had a history of sexual activity. To assert, as the defendant does, that this spontaneously occurred for the first time defies belief. Moreover, the defendant’s account of this incident is inconsistent.
30The defendant testified that he and the victim did not have sexual intercourse on this first occasion. Vaginal penetration came later. That is in sharp contrast to his statement to the police. He told the police that “After I had done it, I felt very bad, very bad”. When asked how often this had happened between November 2022 and August 2023, he replied that after January 2023 “this was committed in every month…. just normal sex…vaginal sex”. This inconsistency is almost certainly explained by the fact the defendant fabricated his account when he took the stand. This may also explain why his lawyer, unaware of what was coming, did not put the details to the victim.
31The victim’s mother is unable or unwilling to accept the extent of the defendant’s misconduct. This is evident from the questions and answers reproduced above. In fact, it appears that she only accepts that the final act occurred because she has been told it was captured on video. Against this background, I cannot accept the evidence of the victim’s mother that her husband and daughter were never alone. On the defendant’s evidence that is obviously not the case after November 2022. In any event, it is impossible to believe they were never alone in the previous four years. In this regard, I note that the defendant testified that while in Alberta he was home for six days at a time, every few weeks.
RESULT
32The defendant admits sexually abusing the victim over a nine-month period, when she was 15 years old. I am satisfied that it transpired over a period of five years, as described by the victim, when she was between the ages of 10 and 15. With the benefit of submissions from counsel the defendant will be sentenced accordingly.
ADDENDUM
33This decision, without this addendum, was sent to counsel on September 10, 2025, in advance of the return date of November 10, 2025, so that the parties could prepare for a sentence hearing on that date with full knowledge of my findings at this Gardiner Hearing. The decision was to be formally filed on the record on this date. When the matter returned to court, Defence counsel advised that he had not noticed receipt of these reasons and was not prepared to proceed. At the request of Defence counsel, his submissions with respect to sentence will be received on December 19, 2025.
34On November 10, 2025, the Crown also pointed to two errors in my reasons. In paragraph 21, I noted the submission by the Crown with respect to “a massive inconsistency between the defendant’s trial testimony and prior statement to the police”. In paragraph 30, I noted my finding that the defendant’s testimony on a certain point “is in sharp contrast to his statement to the police”.
35A prior statement by the defendant to the police was not in evidence at this trial. Indeed, I am advised by the parties that the defendant did not provide a statement to the police. I reviewed my trial notes with counsel. There are numerous references in those notes, during cross-examination of the defendant, and in submissions, to transcript pages. These are references to a transcript of the defendant’s testimony at this trial, dated June 27, 2025. When I later prepared my reasons, I mistakenly identified this trial transcript as a transcript of a prior statement to police. Apart from this error, paragraphs 21 and 30 of these reasons are valid. The parties agree that rather than correct those paragraphs to remove the references to a prior statement, and substitute it to references to the trial transcript, it would be preferable to leave my original reasons as I drafted them and add this explanatory note.
36These reasons will be filed on the record on December 19, 2025, when sentence submissions will be completed.
Released: December 19, 2025
Signed: Justice J. De Filippis