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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
P. G.
Before Justice Leonard Kim
Heard on June 9, 10, 12, 13, 24 and September 4, 2025
Reasons for Judgment released on December 22nd, 2025
Julie Bourassa Counsel for the Crown
Jean Jacques Primeau Counsel for the Defendant, P.G.
L. KIM J.
General Overview:
1The accused stands charged with three offences:
a. Sexual Assault under section 271;
b. Sexual Interference under section 151, and;
c. Invitation to Sexual Touching under section 152 of the Criminal Code.
2The complainant is Z.B., who was under the age of sixteen at the material time. The trial was heard on June 9, 10, 12, 13, 24 and September 4, 2025. The Crown adduced testimony from the complainant, 15-year-old Z.B., and her older half-brother, R.L. The accused, P.G., called N.L. (the complainant’s mother), A.O. (the accused’s sister) and testified in his own defence.
3The main issues in this case were focused on the issues of opportunity and identity. The credibility and reliability of the witnesses form a central component of my analysis. On consent, the Crown was permitted to have the complainant testify by CCTV with a support person and applied pursuant to s.715 of the Criminal Code to have her video statement admitted for the truth of its contents, as an exception to hearsay.
4It is admitted that Z.B. had disclosed these allegations at some point in the spring of 2023, and that approximately a week and a half later, provided her video statement to police on May 24, 2023. Mr. Primeau, on behalf of the accused, had conceded the admissibility of this statement. After the complainant adopted the contents of her statement during the Crown’s examination in chief, I formally ruled it admissible and acknowledged the statutory pre-requisites in s.715.1(1) had been met.
5The complainant described three distinct incidents of sexual touching committed by the accused when she was, “really young, between the ages six to seven”, or “six to eight1” estimated by her to be between 2015 to 2017. The accused is believed to be her mother’s former boyfriend, P.G.
The Position of the Parties
6The first two incidents are alleged to have happened at her mother’s place, while she was living primarily with her father but on a weekend visit to her mother’s. The Crown submits that the first incident consisted of the accused holding the complainant’s hand directly on his penis while repeatedly moving her hand up and down.
7On a separate incident, placing his hand inside the frontal portion of the complainant’s sweatpants, underneath her underwear and in her vagina while moving his hand around.
8The third incident is alleged to have happened at her mother’s cousin’s residence where he placed his hand inside her pants, on top of her vagina and then digitally penetrated her while moving his hand around. Simultaneously, she alleged that he held her hand on his penis and moved her hand in a motion while the two of them were lying next to each other in bed.
9She identified the accused to be in his immediate presence throughout the course of access visits at her mother’s residence that spanned on each occasion over a weekend.
10The accused submits that the sexual assaults, as alleged, did not happen. Alternatively, if the court accepts that the sexual assaults happened and that a former boyfriend of the complainant’s mother had sexually assaulted the complainant, he submits that the Crown has failed to proven identity and essentially disputes that he was the one who had sexually assaulted her. During the material times, there were other male partners who had been dating the complainant’s mother, and who may have committed these offences.
11He points to the physical identification evidence provided by the complainant, R.L., N.L. and A.O. in support of this argument with particular emphasis on his hair style including its length and colour. He submits that the complainant is therefore mistaken in who she remembers to be the person who sexually assaulted her.
12I am satisfied beyond a reasonable doubt that the accused sexually assaulted the complainant on each of the distinct occasions as described by her. I found her to be a credible and reliable witness on the core essential elements of each offence. As the trial progressed, the persuasive impact of the totality of the evidence in favour of opportunity and identity strengthened with each witness, in conjunction with the evidence presented by the accused. I will now attempt to explain how I came to this conclusion in these reasons.
Issues
13The core issues I must decide are:
a. Do I believe the accused?
b. If not, am I left with a reasonable doubt by his evidence in consideration of the totality of the evidence?
c. Even if the accused’s evidence does not leave me with a reasonable doubt, having considered the evidence that I do accept, am I satisfied the Crown has proven the offences beyond a reasonable doubt?
14My analysis of the evidence is not done in silos. I summarize many key aspects of the witnesses’ evidence but if I omit certain portions in these reasons, it does not mean that I did not carefully consider it. I have considered the totality of the evidence upon application of the relevant legal principles.
15I will first address the issues of the access arrangements that were in place at the material time and whether the accused had opportunities to commit these offences.
The Access Arrangements with the Mother
16The complainant and her brothers are part of a blended family. They share the same mother but different fathers. Since the age of four, her primary residence was with her father and she had regular access visits with her biological mother, N.L. It is when this living arrangement was in place that she alleges each of the three incidents of sexual touching with the accused happened.
17She recalls that commencing around the age of four, continuing between the ages of six to eight years old, these visits with her mother happened on a weekly or bi-weekly basis until approximately the age of 10 or approximately the year 2019. Each visit would take place over a weekend from Friday to Sunday. She admitted during cross-examination that she could not remember if it was every weekend or every other weekend.
18Her half-brothers were either living with her mother or otherwise present within the general home environment during those visits. One of those brothers was R.L., a witness for the Crown in this trial.
The Evolution of the Relationship with N.L. from the Perspective of the Accused
19The accused testified that he met the complainant in December 2017 or January 2018 at the bus depot in Sudbury. At the time, he was homeless and struggling from an addiction to substances, specifically speed and Percocets. N.L. was with her two older boys and invited the accused to stay at her place and use drugs with her. He recalled that these older boys were present in the home every other week and that one of the older boys went by “R.L.”
20He estimated that their relationship lasted for about a year and candidly admitted that it was an unhealthy relationship, grounded in their common struggles with drug addiction. He had attempted to separate himself from her at times throughout their relationship.
21At the beginning of their relationship, for a period of approximately a month and a half to two months, he stayed at her residence sporadically. During this period, the complainant and her brother, joined the two older brothers and had access visits with N.L., while the accused was present in their home. He remembered the names of the two younger children who visited to have the names “Z.B. and C.”
22After staying with N.L. for a month and a half to two months, he left for Pembroke to see his twin daughters who still resided with their biological mother, C.W. After two to eight weeks, he returned to Sudbury and couch-surfed and stayed primarily with his brother for a few months.
23After living with his brother in Sudbury, he stayed at N.L.’s residence “a few other times” … “for a couple of weeks or a week”.2
24While he stayed with N.L., he remembered visiting her second cousin’s home with her two older boys and N.L. but never attended there with the complainant or C. present.3
25In June 2019, N.L. drove him to Pembroke to see his twin girls for their third birthday. Their relationship came to an end when he hitchhiked to Ottawa and remained there throughout the summer of 2019.
26Other than chance encounters in the community, he insists that he did not see the complainant beyond the two access visits in early 2018, when he stayed at N.L.’s home in Sudbury.
27I will examine his evidence in more detail later in these reasons.
Law and Analysis
28The accused is presumed innocent, and the burden falls solely on the Crown to prove guilt at the high standard of beyond a reasonable doubt. It is not enough for me to believe that he is probably or likely guilty. He chose to waive his right to silence, and he testified in his own defence. He denied sexually assaulting the complainant both during his evidence in chief and while cross-examined by the Crown. This requires me to assess his credibility in the context of the totality of evidence in this trial.
29In assessing the evidence, I remind myself of the differences between credibility and reliability. Credibility relates to the honesty or veracity of a witness. Specifically, whether the witness is expressing themselves truthfully to the best of their abilities.
30Reliability relates to the accuracy of the witness’ testimony. In determining this, I must consider their ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
31As it relates to child witnesses, I am mindful of the instructions by the Supreme Court of Canada in R. v. B.G., 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48:
“…regarding the credibility of child witnesses, it seems to me that he was simply suggesting that the judiciary should take a commonsense approach when dealing with the testimony of young children and not impose the same exacting standard on [page55] them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.” [emphasis added]
32Two years after the release of B.G., Madame Justice B. McLachlin [as she then was] in W.(R),4 reminded us of two notable developments in the law affecting the analysis of evidence from children.
33The first was to remove any notion that the evidence of children was inherently unreliable and must therefore be treated with special caution. As a result of this change in the law, the requirement that a child's evidence be corroborated has been removed from the Criminal Code. Justice McLaughlin made it clear at the end of paragraph 23 in W.(R), that “…if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into error.”
34The second notable change in the law towards the evidence of children was a clear understanding that it would be wrong to apply adult tests in assessing credibility to the evidence of children5. Justice McLaughlin goes on to explain that children may experience the world differently from adults and that we should not be surprised that details important to adults such as time and place may be missing from the memory of a child. Trial judges are instructed to take a common-sense approach and to not apply the same exacting standard that we would with respect to adult witnesses. This was a reiteration of the Supreme Court's decision in B.G. two years prior.
35In assessing the credibility of a witness, I am to consider any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. However, one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.
The frequency and duration of contact with the accused gradually increased opening the door to opportunity
36The frequency and duration of contact the accused had with N.L. and the complainant gradually increased over a range of time. Reconstructing this range of time is a necessary exercise to determine whether the accused had the opportunity to have access to the complainant and commit these offences. Each witness called by both sides spoke to the issue of opportunity which ultimately proved that the accused had ample opportunity to commit these offences.
37R.L. is the complainant’s older half-brother and is 18 years old. He shares the same mother with the complainant. The significance of his evidence was focused on the issues of identity and opportunity. He explained that he lived with his mother, the complainant, J. and C. in the same residence. He testified that he stopped living with his mother at the age of 15, which would be approximately the year 2022.
38He recalled his mother dated two men with the first name “Shane”. The earlier Shane had moved in with his two daughters. Later, the second Shane whom his mother dated just prior to the accused was described as “…a little short”, tanned skin with usually a small beard and moustache with hair6 “pretty close to P.G.’s”.
39After this second Shane moved out, his mother began dating the accused and he moved in, whom he considered to be like a stepfather to them. According to R.L., prior to the accused moving in with them, the accused had visited his mother for several weeks:
“For the first little bit, he was seeing my mom and visiting, and then after – I would say a few weeks to maybe, like, a month or two, he started staying with us.7”
40R.L. also agreed under cross-examination that his mother may have started to date the accused in 2018, through to 2020. He also expressed that prior to 2018, his mother and the accused were “talking a little bit before that, before 2018,” but he wasn’t sure.8
41This gradual increase from a visitor to a housemate as characterized by R.L. paints a broader picture of time the accused was present in N.L.’s home, and thus, an expanded opportunity to sexually assault the complainant.
42His interaction with the accused was for a significant period of time and in no way brief. The last time R.L. had seen the accused was in approximately 2020 when his mother had taken him and his brother to Pembroke to see him. While there, R.L. stayed with the accused in Pembroke for “a month or two.”
43N.L. is the biological mother of the complainant. Her memory required a great deal of assistance from Defence counsel who played portions of her video statement to her in court. She explained during her testimony that she has progressively struggled with her memory since her tumour had become active. She had surgery and lost most of her memory and is slowly gaining it back as time goes on.
44However, even with these challenges, N.L. was able to remember relevant details and respond well to the questions put to her by counsel. When she could not recall certain facts, she readily admitted this to be the case. Despite some initial challenges with respect to her memory, I found her to be a credible witness.
45After a portion of her initial video statement was played to her in court, she agreed with Mr. Primeau that she started to “see” the accused in 2018, approximately a week after the time her six-year-old nephew passed away.
46It was not clearly defined in her evidence what subjectively qualified as “seeing” in this line of questioning, but I am prepared to infer that this meant dating on an ongoing basis to some consistent degree. The frequency as to how often they saw each other was not explored in the stages leading up to the accused moving in with N.L.
47It appears that their relationship initially began with some contact and then gradually progressed to the point when he moved in with her. This is similar to the nature of the relationship described by R.L.
48N.L. characterized their relationship this way:
“… I knew him from years before. I hadn't seen him in several years. Like, I mean back in my teens. And then hadn't seen him in several years, started seeing each other shortly after my nephew passed away, and then eventually we ended up together for a little bit.”9
49After agreeing with Mr. Primeau that their relationship got more serious in 2018, N.L. recalls that towards the end of the year in 2018, the accused moved in with her. Referencing throughout the year 2018, her response was as follows:
“He lived with me for a little while, off and on. It was an off and on, so I can't - I don't know exactly when, I just know it was - he lived with me for a little bit, then disappeared for a while, then came back, then disappeared for awhile. It was an off and on thing.”10
50At the time he moved in, N.L.’s children were present in her home “off and on”. This included the complainant and R.L.. However, she was unable to say whether the complainant was living with her at the end of 2018.
51A.O. is the sister of the accused. She provided general timelines as to when she believed her brother was in a dating relationship with N.L.
52From 2016 to the end of 2017 or early 2018, she had contact with her brother regularly particularly around the time his twins were born in June of 2016. She saw the accused as frequent as a couple times a month and at least every second month. At the time, he was in a relationship with the mother of these twins, C.W. She characterized this relationship to be “on and off a couple of times.”11
53Her contact with her brother significantly diminished when the accused and his family moved to Pembroke, Ontario, for approximately a year. During the time he was in Pembroke, A.O. estimated that she only saw the accused once every two months, or as infrequent as once or twice a year.12
54To the best of her knowledge, the accused and N.L. were “kinda seeing each other” from approximately the beginning of 2018. She also characterized this relationship to be “on and off” and recalls meeting N.L. on a single occasion in February 2018 and described her residence to be in New Sudbury off of [address removed].
55When he began dating N.L. in early 2018 upon his return from Pembroke, she believed him to be living on the streets and utilizing N.L.’s couch “a few times.”13 For the year 2018, she was unable to provide a concrete answer as to where the accused was actually lodging upon his return to Sudbury and described him to be “couch surfing” and struggling to find stable housing.14
56The accused testified that he started “seeing” N.L. in late 2017 to early 2018. This was corroborated by his sister, A.O., who had knowledge as to where N.L. lived because she drove by her place and met her in February 2018. On his own evidence, the accused corroborated the complainant’s evidence and admits to being present for two access visits the complainant had with her mother that each happened on a Friday to Sunday.
57Furthermore, the accused himself testified that the relationship ended around the third birthday of his own children, being June 2019. It was around that time that N.L. drove him to Pembroke to celebrate the birthday of his children, and he later hitchhiked to Ottawa and remained there for the summer of that year. He then returned to Pembroke around late August to early September 2019 and remained there for four and a half months. In January or February 2020, he returned to Sudbury.
58He testified that beyond June 2019, he did not spend any additional time at N.L.’s residence when the complainant was there on an access visit. I accept this to be accurate in consideration of the other evidence in this trial.
59Upon careful review of the trial record, the totality of the testimony from each of the witnesses points to the accused being in the presence of the complainant beginning with occasional couch surfing to ultimately living at N.L.’s home for significant periods of time.
60As it relates to opportunity, I am of the view that given the gradual nature of the accused’s involvement in N.L.’s life, opportunities for him to sexually assault the complainant spanned a broader time frame that extended earlier than the commencement of a more stable dating relationship between him and N.L.
61Accordingly, the testimony of the complainant, N.L., R.L., A.O. and the accused himself collectively permit me to find beyond a reasonable doubt that the accused was physically present in N.L.’s home for several days at a time when the complainant was in his company. I find that he had ample opportunity to sexually assault the complainant between December 2017 to June 2019, when she was 8 to 9 years of age.
What is the impact of the Complainant’s inaccurate estimation on the dates?
62The complainant alleged these incidents happened between the ages of six to eight years old, which would translate to 2015 to 2017. Between those years, her mother may have dated the three other men, prior to dating the accused. To this end, Mr. Primeau put to the complainant that her mother did not start dating the accused until approximately 2018 to 2019 and then again in 2021. The complainant disagreed and insisted that the accused was coming around their house well prior to 2018 and that she had not confused the accused as one of the two Shanes between the period of 2015 to 2017.
63On the issue of dates, Mr. Primeau submitted to the court that the Crown’s application to amend the date on the Information without any new evidence elicited during the trial speaks to a weakness in the reliability of the complainant’s testimony. In doing so, he did not object to the amendment itself but points me to the timing that does not coincide with the years the accused had dated N.L.
64It is undisputed that the amendment did not disturb the fact that at the time of the allegations, the complainant was under 16 years old and that the amended date of January 1, 2015 to December 31, 2019, captures the dates of these allegations on counts 1, 3, and 5.
65With respect, I do not see the amendment of the Information to be probative in my analysis of the reliability and credibility of any witnesses in this trial. There may be a vast array of reasons for this amendment. I cannot speculate as to why the amendment was made and when. Ultimately, the request to amend was available to the Crown to conform with the evidence at trial at any stage of the proceedings.
66Put another way, the Crown had the statutory right pursuant to section 601(2) of the Criminal Code to seek such an amendment of the particulars on the Information and I am unable to attach any weight to why and when it was requested. This is a neutral factor that has little impact on my overall assessment of the substantive evidence from all sources.
67In attempting to ascertain whether the accused had the opportunity to commit these offences, I have considered the discrepancies in the time frames described by the complainant and its impact on the reliability of her evidence. Although it’s clear to me she may be mistaken on dates, I am mindful of the instructions by the Supreme Court of Canada in R. v. B.G., 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48 when it comes to child witnesses:
“While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”
68It is not surprising to me that the complainant, a child likely eight to nine years old at the time, has inaccurately recalled the dates regarding these allegations. However, this does not diminish her credibility or reliability when I look to other aspects of the trial record that assists me in understanding when the accused was present in N.L.’s home with the complainant in his immediate presence.
69I have cautioned myself on the risk of the complainant misidentifying the accused as the perpetrator because she had described this person to be her mother’s boyfriend when there were others before him, some with similar identifying features. In my view, the error in the dates identified by the complainant does not translate to an error in her identification of the accused because of the degree of interaction and familiarity she had with the accused in combination with the identification evidence in totality. She insisted that she believed these incidents happened to her prior to 2018 because her mother and the accused had been seeing each other on and off prior to 2018. Her recollection of the on and off nature of this relationship in late 2017 into 2018 is corroborated by every other witness in this trial.
70In the mind of this child, I do not think it is realistic for her to know with any degree of precision exactly when the initial couch surfing by the accused in her mother’s home evolved into an intimate partner relationship worthy of being characterized as “seeing” or “dating”. These are things most knowledgeable to the adults involved and her perception that the accused was her mother’s boyfriend must be looked at from her perception as a young child with weekly or bi-weekly access visits with one of those adults. In a close examination of the trial record, her perception on dates, if inaccurate, has little impact on the reliability of her identification of the accused and her detailed descriptions of the core sexual touching she remembers.
The Probative Value of Exhibit 3 – The Photograph of the Accused with longer hair dated March 2023
71On consent, the Crown filed a colour photo of the accused taken in March 2023 accessed from a police database (Exhibit 3). I make no adverse inference in so far as how this photo came into existence. This photo was taken likely within a year of when the complainant had seen the accused in the Donovan neighbourhood holding a guitar.
72Its probative value appears to be that it depicts the accused with significantly longer hair on the sides and the top of his head in comparison to how he looks in court today, and in the historical photo filed as Exhibit 4 by the accused that shows with short brown hair.
73His hair colour in the photo from March 2023 is brown, with hints of a lighter tint to it. As indicated, the length of his hair is much longer on the sides, unkept and wavy, with a portion covering his forehead, approximately an inch or so above his eyebrow. He also has a thick brown beard.
74When A.O. was shown a photo of the accused in Exhibit 3 (depicting long brown hair and a long beard) she admitted that she had never seen him look similar to that photo during the years 2016 to 2019.
75During cross-examination, she admitted that she has known him to have longer hair, but it was usually cut short prior to her seeing him and in any case, not as long as his hair shown in Exhibit 3. In other words, the length of hair in this photo was something that she had never seen before.
76She admitted that during those longer periods of time that she did not see the accused, which included the period of time he was dating N.L. and when he was struggling with homelessness, his hair could have grown much longer than she had normally seen.15 She conceded that these longer gaps in time were at least two months or longer and that she once saw him with “a little extra longer hair” than what she saw at the beginning of this trial but at a length not as long as Exhibit 3. This was when she saw him playing his guitar outside of the Superstore.16
77In her examination in chief, A.O. was shown the photo in Exhibit 4 that depicted the accused with short, shaved hair on the sides and on top. She described the accused’s hair as usually very short with an occasional beard as shown in Exhibit 4. She testified that his hair was never longer than what she had observed in court in the first two days of this trial a couple of weeks prior.
78As for hair colour, A.O. provided a detailed account of the accused’s hair changing colour or tones over the years since his childhood through to adulthood. When the accused was little, she described his hair to be platinum blonde or very light brown and transition to a darker tone as he grew older, but still brown.
79In a genuine effort to describe his hair colour, she referenced the French term, “chatain”, and explained this term to mean “dark blonde or light brown colour.”17
80During cross-examination, she maintained that his hair colour remained the same throughout the years from 2016 up to the first days of trial in mid-June 2025.
81She agreed with the Crown that this type of hair has undertones that are more noticeable in various shades of light, dependent upon the lighting present or the way in which the hair is styled.
82I find A.O.’s testimony on the colour and length of her brother’s hair during the time period encompassing December 2017 to June 2019 to be unreliable. Part of my conclusion is based on the factual reality that the accused’s hair would have grown and changed during this span of time and during extended periods she did not see him. Her recollection of the accused’s hair colour and length is interrupted by several weeks and months when she conceded the accused was homeless, couch surfing and in sporadic contact with her. While I sensed her to be well intentioned, the fact of the matter is that she had sporadic contact with the accused and would not be in a position to comment on his physical features in any reliable way. Accordingly, I place no weight to her evidence as it relates to the accused’s hair colour, style or and length during the material times between December 17 to June 2019.
The Probative Value of the Photo of the Accused with short hair in Exhibit 4
83N.L. was shown Exhibit 4, at the time it was a lettered exhibit, yet to be qualified. This is the photo depicting the accused with short hair on the side and top of his head and was provided by N.L. to Officer Hutton. She testified that she provided this photo to police and it was taken at [address removed] in Sudbury, by her friend.
84This photo of the accused depicts him with short hair on the side and on top. She insisted that it was taken when she was living in an apartment on [address removed] after 2019, likely in the year 2020 or later.
85N.L. was unable to recall the precise date as to when this photo was taken but she repeatedly insisted that it was taken much later than 2018 when she did not have care of any of her children.
86She also rejected any notion that the accused looked similar to his appearance in this photo put to her by Defence counsel.
87When asked if the accused looked similar to the photo in Exhibit 4 when they dated in 2018, N.L. disagreed and described the accused to have long, blonde curly hair that he shaved from time to time.18 According to N.L., every time she had seen the accused’s hair, she described it to be “either blondish…dirty blonde…maybe slightly on the reddish side, but more blonde”.
88She insisted that the main thing she could recall was that the accused’s hair was predominantly long and curly and that when this was the case, he also had a long beard. In the witness box, she touched the right side of her face and chin, as a way of demonstrating to us the length of the accused’s hair when it was not shaved. She also explained that his hair “looked different in different months, different weeks” and that he “looked different a lot.”
89N.L. testified that she provided additional photos of the accused to Officer Hutton that portrayed the accused with curly blond hair, and another photo with him wearing glasses. In her mind, the accused looked very different in each photo and insisted: “You wouldn’t tell it was the same person.”
The Accused’s Hair During the first two days of trial
90In response to questioning by counsel, reference was made by R.L. to the accused’s current hair length in court on the first two days of evidence. To better understand the responses to these questions, I made explicit observations during the cross-examination of the complainant and testimony of R.L. with the approval of counsel. I observed in court the accused’s hair to be short on the sides. On the top, his hair was longer, and combed forwards with a darker shade of brown.”19
The Accused’s Testimony on Opportunity and Identification
91On his own evidence, there was ample opportunity to sexually assault the complainant. Those opportunities are crystallized when I consider the combined evidence of the other witnesses. In total, the accused estimated that in 2018, he was at N.L.’s home on four separate occasions, with each occasion spanning approximately two to three weeks in duration.
92He admitted to being in the presence of the complainant on two occasions during two access visits she had with N.L. generally on weekends from Friday to Sunday on two separate occasions at N.L.’s residence.
93As it relates to the alleged sexual assaults, the accused rejected any notion that he touched the complainant sexually anywhere on her body on each of the three occasions alleged by the complainant.
94Initially, and prior to the accused’s drug addiction reaching a more severe level, N.L. described him to be good with her children. She had no concerns with him being in their presence and testified that he was also present when the children, including the complainant, were put to bed. For example, N.L. remembers the accused taking turns with her to tuck the children into bed at the time he lived with them.
95The accused admitted to being alone with the two older boys on a number of occasions but testified that he never let N.L. leave him alone with the younger children. He denied ever being left alone with the complainant at any point and also denied ever putting the children to bed. He testified that N.L. was always with him when the complainant and her younger brother were present.
96He could not recall a memory of having a conversation with the complainant and described her as someone who didn’t talk much. However, he conceded that it was possible that he spoke to her more than what he could recall.
97The accused referenced Exhibit 4, a photo of him with shorter hair, as a general representation of what his hair usually looked like during the years that he had stayed with N.L. at her home from late 2017 into early 2018.
98He claims that during these material times, his hair usually was not quite as long as it was at the commencement of this trial and described his hair to be dirty blonde or dark brown in colour. He acknowledged his hair to be quite long with a beard in Exhibit 3. However, he insisted that his hair was not this long at any point he was in contact with N.L. and the complainant. During cross-examination, he estimated the frequency of haircuts at the time he was dating N.L. to be at least once every two months and that he never had wavy hair. He also testified that prior to the commencement of this trial, he did not cut his hair for approximately three to four months prior.
99He corroborated R.L.’s testimony as it relates to a conversation the two had regarding his hand tattoo of a cracker that R.L. had perceived to be a piece of cheese.20 From the witness box, he displayed several tattoos to the court on his arms, legs and hands. In doing so, he had to lift his arm sleeves and pant legs to reveal some of these tattoos, all of which were in place prior to meeting N.L. and her children.
100The accused testified that he was in Elliot Lake in 2022 but was on bail from charges that originated in Sudbury. He does not recall being in Sudbury in 2022, when the complainant claims to have seen him in the Donovan neighbourhood. However, he conceded that his recollection of the years are “a bit of a blur,” but believes he left Sudbury for Elliot Lake when he was 33 years old, approximately 4 years ago in 2021 and returned in 2023, upon arrest for these charges.21
101The accused testified that he used mostly speed and Percocets during the years he had come into contact with N.L. and her children and began using fentanyl more frequently in 2023 prior to his arrest.
102He admitted during cross-examination that his drug use gradually increased through the years 2013 to 2017. He went from using drugs once or twice a week to daily in 2017. When he was dating N.L. in late 2017 to early 2018, he confirms that he was using drugs everyday but not in the presence of her children. His entire income was being used to support his drug addiction and he struggled with homelessness.
103Despite this, he insists that his memory of these events today is accurate. To the extent that his memory is impacted, it is due to recent fentanyl use and focused on his short-term memory only.
The Law of Recognition Identification Evidence
104Eyewitness evidence must be approached with caution because of its potential to be unreliable from otherwise credible, well-meaning witnesses.22
105Here, the descriptions in support of identity as provided by the complainant is more accurately considered to be recognition evidence because she was testifying to someone whom she knew or was familiar with, as opposed to a stranger.23
106Recognition evidence is considered more reliable and generally carry more weight than eyewitness identification of a person whom the witness is previously unacquainted.24
107However, it is important to not lose sight of the risks associated with identification evidence, even in instances of recognition evidence. As the Court of Appeal stated in Olliffe,25 I must be vigilant to ensure the reliability of any proposed recognition evidence is sufficiently reliable and assess the circumstances in support of such identification evidence. I quote:
“Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence....”
108In other words, recognition evidence is still prone to the same frailties and the same risks as identification evidence and must be approached with the same level of caution and requires the same level of reliability before I can accept it.26
109Even where the witness knows the person being identified, the time to observe, the circumstances of the observation and the conflicting evidence are important factors I must consider in order to determine the reliability of the recognition evidence.27
110The more prolonged the previous opportunity the witness had to become acquainted with the person’s appearance, the more reliable and corresponding weight may be attached to the recognition evidence.28
111The greater the familiarity a witness has with the person, the less elaboration on any points of distinctiveness may be required. It is a commonsense observation that with the passage of time, many people may not take explicit note of the same features that strangers might.29
112As I consider these legal principles, I now turn to the extent of the interaction as described by the complainant in each of the three alleged incidents of sexual touching.
Incident 1 (Count 5 – Invitation to Sexual Touching, contrary to s. 152)
113The complainant explained that her mother, along with her brothers, R.L. and J., had gone with her to a splash pad near her mother’s home. She does not recall whether the accused joined them on this excursion. Upon returning home that evening, her mother had taken the boys to a corner store to get some chips and candy, in anticipation of a family movie night. She explained that this corner store is not there anymore and is a home.
114She recalled being left alone with the accused at her mother’s home and estimates that at some point in the early evening, perhaps between the hours of 12 to 3:00 p.m., she was getting changed out of her bathing suit in her room.
115When she had her bathing suit removed, the accused came into the room and told her he needed to tell her something. She followed the accused into her mother’s bedroom and after 5 to 10 minutes had passed, the accused removed his clothes while she was seated on the bed. He lied down on the bed on his back and grabbed her hand and held it around his penis, utilizing her hand to stroke his penis in an up and down motion. In her words, “He held my hand and made me touch it.” (pg. 45)
116The accused made sounds that she was unable to explain to the officer. She agreed with the officer that he was breathing heavily. She described the action he made her do this way in her video statement:
“He made me hold it the whole time. Like he – he had his hand on my hand the whole time.” (pg. 46)
117She described how it ended, “He took his hand off of mine and I moved my hand off.” When asked by the officer if something came out of his body she had never seen before, she was unable to recall. The accused got dressed and assisted her in getting dressed prior to her mother and siblings returning home. Although the accused had initially told her that he had to discuss something with her, no such discussions took place.
Incident 2 (pg. 52) – Count 3 – Sexual Interference contrary to s.151
118The second incident is alleged to have happened in the complainant’s room at her mother’s home subsequent to the first incident. The complainant testified that her mother and siblings, C., R.L. and J. were all downstairs while she was alone with the accused. She recalls they both had their clothes on.
119He allegedly said to the complainant he needed to talk to her. After a brief discussion, he slowly approached her and placed his hand inside the frontal portion of her sweatpants and started to move it around. He touched her vagina underneath her underwear and in her vagina. I have reproduced this portion from pg. 52-53 of the video transcript:
“Z.B.: He put his hand in my pants and started moving his hand.
DETECTIVE: So was that the front of your pants, the back of your pants, or something else?
Z.B.: The front of my pants.
DETECTIVE: And was it under your underwear, or on top of your underwear, or something else?
Z.B.: Underneath.
DETECTIVE: And what part of your body was he touching?
Z.B.: My vagina
DETECTIVE: And was it on top? Was it...
Z.B.: It was...
DETECTIVE: ...it....
Z.B.: …in.
DETECTIVE: Okay. And was he using words, or making noises this time?
Z.B.: No.”
120The complainant described being seated on the edge of her bed while the accused was seated directly beside her. This incident of touching ended when one of her brothers unexpectedly walked into her bedroom. The accused kept his hand inside her pants, but stopped moving his hand around when her brother walked in.
121The accused then told her brother that they would be downstairs in a minute. Her brother then left the bedroom and went downstairs. After her brother left the room, the accused removed his hand from her pants and they both joined her brother downstairs. She does not remember which brother entered the room during this incident but recalls that the accused didn’t speak much to her afterwards and was “quiet” for the remainder of the day.
122She described her sweatpants to be baggier in style and that there was no blanket or sheet covering the accused’s hand inside her sweatpants.
123Z.B. does not remember how old she was when this second incident happened. However, she estimates that this incident happened during the subsequent visit to her mother’s house after the first incident. She had previously estimated the first incident happened when she was six or seven and was unsure if this second incident happened the same year or the following year. The best she could say with respect to the date was that it was in the general range of time after the first incident.
Incident 3 (pg. 58) – Count #1 – Sexual Assault contrary to s.271
124The third incident allegedly happened at the residence of her mother’s second cousin when she was between six to eight years old. This relative had three children, and one of them, a son, had passed away. She had visited this relative’s home prior to meeting the accused and believes that he had also been there without her present on a separate occasion.
125This residence was near the Walmart [address removed] in Sudbury. During a visit there, her mother and siblings went to Walmart and left her alone with the accused.
126She alleges the accused brought her downstairs to the basement to one of the bedrooms, where there was an air mattress and a bed up against the wall. A curtain covered half of the basement. The complainant remembers laying down on either the air mattress or bed and the accused directly beside her. She testified that he placed his hands in her pants, underneath her underwear. She was lying down and the accused was beside her.
127He touched the top of her vagina and then digitally penetrated her vagina. She described his hands to be moving while he touched inside her vagina.
128She also alleged the accused took her hand and placed it “…under his underwear” and then on his penis and was moving her hand while making contact with his penis. His hand was on top of his clothes. She elaborated by stating, “He didn’t use any words to ask me, he just grabbed my hand and did it.” She explained that their clothes were still on.
129At some point, the accused got up and left the basement while she remained there until dinner when either her uncle or second cousin called her upstairs for supper. She remembers having pizza for dinner.
130After the third alleged incident, the complainant did not see the accused again except for one occasion in 2022, approximately a year prior to providing her video statement to police in May 2023. This was a chance encounter in the Donavan area of Sudbury. She was on her way to a local convenience store when she saw the accused talking to some unidentified people while holding a guitar. She testified that he was staring at her. To her, he looked the same as before but only “skinnier”. His hair appeared to be similar to what she described in these incidents.
The degree of familiarity with the Accused in conjunction with the Identification Evidence
131In applying the applicable legal principles, there must be a more specific discussion in how the identity evidence in this trial should be considered because the complainant has some degree of familiarity with the accused. Throughout my analysis, at all times I am cautiously aware of the risks of identification evidence even among people the complainant is familiar with and recognizes.
132This is not a case of a complainant attempting to identify a stranger in a fleeting moment during a single incident with no prior or subsequent interactions. More accurately, the complainant and the accused knew each other at the time because he was living at the residence the complainant visited as part of her access visits in her mother’s home.
133It has been established that each of these access visits with her mother lasted a few days on each occasion and happened on a bi-weekly or weekly basis. Her level of familiarity and history of interactions with the accused may enhance or diminish the reliability of her recognition evidence in conjunction with the other sources of identification evidence available on the record before me.
134The evidentiary record is robust and permits me to distinguish the other boyfriends of N.L. who may have also had the opportunity to commit one or more of these offences. This distinguishing evidence came in the form of physical descriptors but also the individual personal circumstances of each prior boyfriend that assisted me in assessing the reliability of the identification evidence that I find ultimately points to the accused.
135During the time of the alleged incidents, the complainant was living with her father and had access visits with her mother. According to her and R.L., their mother had four different boyfriends during this relevant time frame. Two of these men were known as Shane, the third was Sean and the fourth was P.G., not necessarily in this order.
136R.L. recalls that when he first lived with his mother, her boyfriend Shane also moved in along with his two daughters. He was unable to provide a physical description of this first Shane but I remind myself that there is absolutely no evidence that suggests the accused’s own daughters moved into N.L.’s home with him, like this first Shane had arranged.
137After N.L. and this first Shane separated, her next boyfriend that moved in was another man bearing the name Shane. R.L. described this second Shane as “…a little short”, tanned skin with a small beard and moustache with hair30 “pretty close to P.G.’s”.
138Again, the distinguishing features in comparison between this second Shane and the accused are self-explanatory. R.L. recalled the accused was tall, fit, had a beard, tattoos and short hair. In describing the accused’s personality, he testified that the accused liked to sing and play the guitar. He specifically remembered the accused had a tattoo on the back of his hand that resembled cheese. This intrigued him and he asked the accused about this tattoo. This conversation was later confirmed by the accused in his testimony.
139He was able to identify the accused in the courtroom and affirmed his recognition of the accused since he knew him for a significant period of time. He recognized his face and his tattoos and noticed him to be slimmer today.
140As for his hair, R.L. observed that in court today, his hair is a lot “shorter and cut back” when compared to when they lived together. Back then, it was relatively short but not as short as now.
141When he was shown Exhibit 4, he assumed that the accused had his hair at a similar length most of the time, but couldn’t place an image in his mind of what his hair actually looked like when he was living with them.31 I remind myself that detailed descriptions of those we are more familiar with may not be as elaborate. It is a commonsense observation that with the passage of time, many people may not take explicit note of the same features that strangers would.32
142N.L. also confirmed that she had dated two men with the first name Shane just prior to dating the accused in 2018. Specifically, Shane Gauthier was the man she had dated just prior to the accused for an unknown period of time.
Assessing the Reliability of the Complainant’s Identification Evidence
143According to the complainant, when she was living primarily with her father and visiting her mother, there were two men with the first name “Shane” who dated her mother in consecutive order. One Shane had two little girls and the other had one little girl.
144“Shane A” – I will refer to “Shane A” as the first Shane described by the complainant. This may be the second Shane described by R.L. to be short and with a beard. The complainant described “Shane A” to be shorter in stature but with a scar on his lip and “really short” in comparison to the other, much taller “Shane”. Shane A had brownish black hair that was “kind of flat” and he always wore a hat. These descriptions are quite different than the taller accused who was not known to wear a hat but I am aware that there still remains a remote possibility the complainant may have mistaken Shane A to be the accused.
145“Shane B” – To distinguish the next boyfriend with the same name, I will refer to him as “Shane B”. according to the complainant, Shane B was tall and skinny, over 6 feet tall bald, and she described his hair as, “kinda like a buzz”; I am alert to the possibility that the complainant might have mistaken Shane B as the accused. However, I remind myself that the accused has two daughters. Shane B is likely the earlier Shane according to R.L., who moved into his mother’s home with his two daughters. The accused did not move into N.L.’s home with his two daughters who happened to reside in Pembroke during the material time.
146However, even if I am wrong, the other Shane was described by the complainant to have one daughter. The accused does not have one daughter and this is a distinguishing feature the complainant was aware of. I am cautiously aware of the possibility the complainant had mistaken the accused as Shane B, or the earlier Shane described by R.L. However, the cumulative effect of the descriptions and familiarity described by the complainant, R.L. and N.L. combined with the testimony of the accused leads me to conclude that she is not mistaken.
147During cross-examination, the complainant firmly rejected the notion that she had confused the tall, skinny Shane who had a buzz cut with the accused, that I have referred to as “Shane B”. She also rejected the suggestion put to her by Defence counsel that the accused had a buzzcut but later admitted this was a possibility when shown Exhibit 4. She nonetheless insisted the accused’s hair was not short and that he had longer hair.33
148“Sean” – she doesn’t recall what he looked like and had only met once or twice. She explained that she did not know him very well. During the time her mother dated this man, her parenting time was shared equally between her mother and father. This was not the parenting arrangement she had when she was in her mother’s home with the accused present. During those access visits, I remind myself that the accused himself admitted the complainant had access visits with her mother on weekends from Fridays to Sundays, perhaps bi-weekly. I am satisfied the complainant has not mistaken Sean as the accused in describing these sexual assaults to the court.
The Complainant’s Recognition Identification Evidence of the Accused
149“P.G.” – The complainant testified that she had seen the accused on every occasion that she visited her mother over the course of a few months. As indicated, these visits to her mother’s place happened either weekly or bi-weekly on weekends from Fridays to Sundays. She admitted during cross-examination that during those visits, she interacted with him throughout the household from the moment she awoke until bedtime. Those interactions included having meals and watching television together. She also remembers that he smelled like marijuana and cigarettes. He smoked cigarettes in her presence but never drank or consumed marijuana in her presence. Despite this, she was unable to recall if the accused had any tattoos.
150She described the accused’s hair to be shorter in court than at the time of the alleged offences and described him to be in his mid-20s at the time of these alleged offences. She testified that two out of the three incidents happened when she visited her mother’s residence near a waterpark and playground with three slides. She also described this location to be near a public library [address removed] in Sudbury, across the street from the shopping mall walking distance from a Harvey’s and library.
151More specifically, she described the man she knew as “ P.G.” to be tall, skinny and had hair colour that was, “kinda like a ginger,” and “kinda curly hair. Like not like really curly, but like curly enough to say it’s curly.34” She indicated in her testimony that she meant to say that his hair was “wavy” but didn’t know how to describe it. In her video, she described its length as “…not really long, but not short.” She also explained that he often had headphones on.
152As for the length of his hair, she expressed in the video, “….I don’t know, like around his eyes” and with “…a little bit of a moustache and a beard,” but shaved most of the time, “with a little stubble.” During cross-examination, she agreed with Mr. Primeau that his hair was in the middle of his eyes at his eyebrows, or just above.35 She disputed that the accused had a buzz cut and insisted that his hair was longer at the time of the allegations. In doing so, she also rejected any notion that she had confused the accused as being one of the Shanes, specifically, Shane B, who also had a buzz cut.
153Mr. Primeau presented to the complainant a photo of the accused with short brown hair. At the time it was shown to her during cross-examination, it had not yet been authenticated specifically as to when it was taken.
154He asked the complainant if it was possible that the accused had short hair, as shown in Exhibit 4, throughout the years 2016 to 2018 when he dated her mother. The complainant initially responded that she did not believe so but later agreed that it was possible.
155Later in the trial, Mr. Primeau showed this same photo to N.L., who insisted that it was taken after the year 2020. However, at the time he asked the complainant questions regarding Exhibit 4, he did not have a date as to when this photo was taken. It was only after he questioned the complainant, and when N.L. testified subsequently, that it was established that Exhibit 4 was taken after the year 2020, sometime after the alleged time frame of the incidents.
156When asked to expand on the colour of his hair, she explained that it was, “kinda like a ginger” “not necessarily a ginger”, “I don’t want to say like brownish”, “…like in the middle between them.36” During cross-examination, Mr. Primeau pointed out that the accused’s hair colour today is quite dark and not ginger in colour, and that this was his hair colour at the material time of the allegations. The complainant agreed with defence counsel’s characterization but maintained that she perceives the accused’s hair colour in court to be in between brownish and ginger.
157The complainant explained that she has a hard time being around people that looked or acted like the accused. For example, she has a hard time being around people that had a similar ginger tone to their hair.
158Later in this line of questioning, when it was put to her that a ginger is a person with red hair, she elaborated with her interpretation of what the hair colour ginger looks like. From her perspective, someone with ginger coloured hair does not necessarily have red hair because the term ginger can also encompass a person with lighter hair and others with darker hair.37
159However, when it was put to her that the accused has always had short hair, she disagreed with Mr. Primeau and maintained that at the time of the allegations, the accused’s hair was longer than it is today.
The physical descriptions of the Accused changed frequently and is largely subjective
160A significant portion of this trial was focused on the hair colour, length and style of the accused at the time of the alleged events, during his relationship with N.L. and even during the course of these trial dates.
161What’s telling is the highly subjective nature of this evidence from the eye of the beholder. For example, when Mr. Primeau cross-examined the complainant on the accused’s hair colour in court, she maintained her subjective perception of the accused’s hair colour in court to be in between brownish and ginger.
162And yet, Mr. Primeau described this same hair on the accused and the very same moment to be dark brown and not ginger in colour.
163I have carefully reviewed the numerous descriptions of the accused’s hair from each of the witnesses that spanned all the years of his life beginning from his childhood to the dates of this trial. Objectively, the range of hair colour include variations that may be explained due to the highly subjective nature of the perceived shades at any given point in time. Similarly, the range of hair style and length is prone to the same subjective perceptions and natural variations over time.
164What has become abundantly clear to me is that N.L. characterization of the accused’s physical description is in my view, the most persuasive. Furthermore, as the person who had dated the accused, she is best positioned to describe the range of physical features he exhibited throughout the period of opportunity. She described the accused’s physical description to change repeatedly throughout the course of their relationship and presumably, when the accused would have had the opportunity to sexually assault the complainant.
165Judging by the two photos of the accused in Exhibits 3 and 4, and the range of hair colours and styles as described by each of the witnesses presented by both sides, ranging from dirty blonde to dark brown, to short buzzed hair to longer unkept hair and a beard, I am of the view that N.L.’s characterization of the accused’s appearance as one that had varied from time to time is the most accurate.
166I find that the accused’s appearance changed frequently and there is no persuasive evidence before me that detracts away from the core descriptions and identification provided by the complainant. Her observations as described are entirely plausible.
Exhibit 3 enhances the reliability of the Complainant’s identification of the accused
167The physical description provided by the complainant is strikingly similar to Exhibit 3. His hair appears brown, but yet with a hint of ginger on top with hair halfway down his forehead. He has wavy hair, not quite curly, but wavy enough to notice with a long, brown beard also with hints of lighter colored brown hair. Having been homeless, couch surfing and struggling with daily substance use, I accept that at the time of the alleged incident, his hair would have been on the longer and unkept side in Exhibit 3 as opposed to shorter and clean cut as portrayed in Exhibit 4.
168The photo in Exhibit 3 gives me confidence in the reliability of the identification evidence provided by the complainant, even before I consider the degree of interaction she had with the accused. I find it entirely plausible that his hair was as described by the complainant during the periods of time she alleged these three incidents happened to her.
169I did not find the evidence or cross-examination presented by the Defence to be persuasive in any respects on the issues of opportunity and identity. Given the relative ease in which hair appearances change in a brief period of time, this evidence did little to detract away from the very clear descriptions provided by the complainant of the accused; a person known to her.
170During cross-examination, the complainant admitted that when she provided her video statement, she did not remember whether or not the accused had tattoos. But upon seeing the accused in court visibly displaying tattoos on his arms, she seemed to recall that he did have tattoos.
171Within this context, I am also mindful that peripheral details of a traumatic event can be difficult to recall and accurately describe later.38 To this end, I am not concerned that the complainant was unable to recall initially if the accused had any tattoos. Moreover, in a careful review of the questioning conducted by counsel, neither side explored with the complainant whether or not those tattoos would have otherwise been plainly visible at the time of the alleged three incidents when factors of lighting and clothing are concerned.
172For example, in court, Mr. Primeau went through great lengths to demonstrate the accused’s tattoos through A.O. I note, however, that many of those tattoos were initially covered by sleeves or pant legs and required the accused to take steps to adjust his clothing to reveal same to A.O. No evidence is before me as to what the accused might have been wearing at the time of the alleged incidents or whether they were simply covered up with his clothing and not visible to the complainant. To this end, the lack of recollection on her part as it relates to the accused’s tattoos is a neutral factor as it relates to her reliability.
The overall Credibility and Reliability of the Complainant in consideration of the totality of the evidence
173At trial, the complainant was 15 years old but testified to events that she believed happened when she was between the ages of six to eight. As it relates to opportunity, I have already found that the accused had access to the complainant and opportunities to commit these offences as early as December 2017, to as late as June 2019 when the complainant was between eight to nine years old. As I carefully review each of the descriptions provided by the complainant and R.L., it is clear to me that the complainant was able to accurately distinguish both men with the first name Shane and Sean from the accused due to their respective heights, how they behaved, their personal family circumstances in conjunction with her level of familiarity with the accused himself in consideration of the amount of time she was in his presence at N.L.’s home.
174Having considered the totality of the evidence before me, and the various physical descriptions of the three other boyfriends that could have been mistaken by the complainant to be the one who sexually assaulted her, I am persuaded beyond a reasonable doubt that she was accurately describing the accused as the one who had sexually assaulted her on all three occasions during the material time.
175My belief is strengthened with the corroborating evidence provided by the accused himself in this trial and in consideration of the testimony of each witness. He admitted, at a bare minimum, to have had direct access to the complainant on at least two occasions when she visited N.L’s home for access. He further agreed with the complainant’s testimony that each of these visits would have taken place over a weekend from Friday to Sunday. He also admitted to visiting N.L.’s second cousin’s home, although without the complainant as she alleged where the third incident took place.
176The precise location of N.L.’s residence in Sudbury where the first two incidents are alleged to have happened is corroborated by N.L. and A.O.
177Furthermore, the accused himself admitted to owning and playing a guitar, precisely as described by the complainant when she recognized him in 2022, a year prior to providing her video statement to police and after the alleged incident. Her identification of the accused was corroborated by the accused himself, A.O., and R.L., each of whom described the accused to play the guitar.
178The opportunities, physical identification and parenting arrangements within N.L.’s home for these sexual assaults to have been committed by the accused were not only corroborated by R.L., but by N.L., a material witness called by the Defence.
179With respect to the first incident alleged by the complainant, N.L. testified the complainant wanted to remain home with the accused while she went to the corner store. She returned and suspected that something had happened:
“The video refreshed my memory. I remember we – we were going to the store. Z.B. wanted to stay behind with P.G. We went to the store; we came back. I recall walking in, and it felt awkward; it felt like either we surprised them, like we were back too soon or something, and there – like, there was weird vibe, and I asked if everything was okay.”39
180I wish to make it clear that I do not attach any weight whatsoever to N.L.’s evidence as it relates to suspecting something awkward in the moment when she returned home and saw the accused alone with the complainant. She had taken the complainant aside and asked her if anything had happened to her to which she denied. However, statements made by the accused to N.L. have some probative value. Upon her return from the store, the accused admitted to having a serious conversation with the complainant about something. N.L. explained the interaction with the accused this way:
“I asked if everything was okay. I recall P.G. tell me everything was okay; he would talk to me later about it. That they had a serious conversation, and that he would talk to me about it later.”40
181This is relevant in a more specific sense, because it corroborates the testimony of the complainant in relation to the first alleged incident and provides me with a general sense of the nature of the accused’s interaction with her.
182I find that there was exclusive opportunity for the accused to have sexually assaulted the complainant after she returned home from the splash pad and was left alone with the accused by N.L. It is also probative of some form of one-on-one interaction between the accused and the complainant on this occasion that was not routine and that he perceived to be serious enough to discuss with her mother at a later point, presumably in the absence of the child.
183This evidence alone does not prove that the accused did anything to the complainant. But in combination with other evidence, it adds an element of credibility and reliability to the complainant’s recollection of what happened to her with respect to the first alleged incident of sexual touching. It also assists me in weighing the accused’s evidence when he testified to having little to no interaction with the complainant.
184On this point, N.L. went on to explain the degree of interaction and responsibility the accused had with her children, including the complainant that provides me with some insight into the degree of trust and authority he had with the complainant when he lived in her home.
185I find that for significant periods of time during their relationship, she had no concerns with the accused taking care of her children, including the complainant. I accept that it was the complainant who had wanted to stay home with him when N.L. went to the store during the first incident and that she took turns with the accused tucking the children into bed at night.
186This degree of interaction and responsibility the accused had with the children speaks to the level of trust and comfort N.L. and her children, including the complainant, had with the accused during the material times he stayed in her home and had the opportunities to commit these offences.
187In a careful review of Mr. Primeau’s cross-examination of the complainant, I have found her evidence to be unshaken, credible and reliable. I did not detect any effort on her part to embellish or fill in the gaps in her memory. At no point was she defensive when pressed on her memory of the events and I did not sense any attempt on her part to exaggerate or manufacture what she says the accused did to her. Her evidence regarding the issues of identity and opportunity as well as the specific details recounting how the accused touched her vagina and instructed her to touch his penis were unwavering and persuasive.
188I do not have any concerns regarding the complainant’s credibility. Her evidence was consistent and firm in belief. Focusing on the core allegations of sexual touching, there was a lack of material inconsistencies elicited from her by Mr. Primeau.
189There was not a hint of any motive or attempt on her part to fabricate these allegations or to mislead the court. Ultimately, she stood firm in her specific memory in how the three incidents happened, where the accused touched her and to what degree her sexual integrity was violated. Various aspects of her testimony were corroborated by the accused himself, N.L. and R.L.
190She conceded portions of her testimony where she could not remember or did not know the answers to, but the record proves that the core allegations of sexual touching remain consistent and persuasive in both details and descriptions. For example, she readily admitted that she could not remember if the accused accompanied them to the splash pad prior to the first incident of sexual touching. She also could not recall which brother had interrupted the touching in her room during the second incident.
191But nothing in her video statement to police, examination in chief or cross-examination weakened her otherwise consistent and detailed memory of where these distinct events took place and the manner in which she was touched by the accused.
192The focus of the defence on behalf of the accused is in the reliability of the complainant’s evidence.
193As it relates to her reliability, it is clear to me that the complainant had interacted with the accused on several access visits that took place at her mother’s home. These interactions went on for days within the common household they were both in at the time during these weekend visits. The visits were not brief in any way shape or form.
194As I closely compare the physical descriptions and personal characteristics of the two Shanes, and Sean, as provided by the complainant and R.L., I am not concerned that the complainant is confusing the identity of the person who touched her. It is no surprise that the complainant was unshaken during cross-examination when the various descriptions of these 3 other boyfriends were put to her. She maintained that at the time she was living primarily with her father and had access visits with her mother, the accused was the one who had sexually assaulted her during those access visits.
195These visits were not moments in passing. Rather, they included a living arrangement with the accused residing in the same household with the complainant over the course of several days during multiple access visits. This is an important factor to consider as I consider the reliability of the complainant’s recognition identification evidence and the inherent frailties associated with identification evidence.
196During cross-examination, the complainant volunteered that he had informally changed his name when he dated her mother from “P” to “M” to now “S” or something similar. During cross-examination, Mr. Primeau put to the complainant that the name of the person who actually touched was identified as “M” or “S”. She rejected this suggestion outright and affirmed that the accused had historically changed his name when he dated her mother.
197While the dates of the alleged sexual assaults do not appear to coincide with the specific time frames as provided by the accused and N.L., given the broader time frame outside of the actual dating relationship when the accused had access to the complainant, the admissions by the accused to access and the fact that I have no concerns of a mistaken identity involving any of the three prior boyfriends, this error in dates from the complainant is of no moment.
198Each of the three incidents she described contain detailed descriptions of how the accused approached her, including who else was present or absent within the homes, the physical layout and descriptions of the basement room, and what she ate for supper after the touching happened on that third occasion. The level of detail in how Z.B. was able to explain to the officer and the court precisely where the accused touched her and how he did so on each occasion was convincing and consistent throughout.
199When I consider her evidence in conjunction with the other witnesses including the accused, particularly in consideration of the amount of detail provided in each of her descriptions of the alleged sexual assaults, I find her to be a credible and reliable witness.
200My confidence in finding the identity evidence provided by the complainant to be reliable is because of the significant corroboration provided by the accused himself but also in recognition that her interactions with the accused were not for brief moments in time. In other words, given the frequency and length of time she was in the accused’s company, it is abundantly clear to me that in each of the sexual assaults alleged by the complainant, she is accurately describing him as the person who touched her and invited her to touch him.
201Her interactions with the accused happened days at a time on multiple occasions within the same household. She was able to describe details of their interactions including her recollection that the accused was silent for the remainder of the day within the home after sexually assaulting her. Her post incident identification of the accused in the Donavan neighbourhood of Sudbury in 2022 while possessing a guitar adds to the reliability of her identification evidence.
202The accused testified that he had stayed at N.L.’s residence for approximately one month and a half to two months and then upon returning from Pembroke, on additional occasions for up to a couple of weeks.
203As it relates to reliability, the accused himself testified to being heavily addicted to substances and consuming hard drugs on a daily basis at the alleged material times he lived at N.L.’s home. This causes me to have great concerns with respect to the reliability of what he has testified to. I am left with very little confidence that what he has testified to is accurate and reliable. For these reasons, I do not accept the accused’s evidence.
W.D. Analysis
204I mindful of the presumption of innocence and remind myself that the Crown bears the burden at all times to prove the essential elements of the offences beyond a reasonable doubt. Credibility forms a central component of my analysis. The principles set out by the Supreme Court of Canada in R. v. W.(D)41 provide a requisite framework in determining whether the Crown has proven the accused’s guilt beyond a reasonable doubt. In applying the test in W.(D), I have considered the totality of the evidence including all potential sources of reasonable doubt including doubt left by the complainant's evidence, the doubt created by the evidence of the accused, the doubt found in any other evidence or the doubt arising from the combination of those sources.”42
205I have also considered the guidance on child witnesses from R. v. B.G. and W.(R.), and approached the identification evidence with caution as I consider the reliability of the evidence in totality.
206As the trier of fact, I may believe some, none, or all of the testimony of any witness, including that of an accused. I must also remind myself that if, after a careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit.
207With respect, I reject the accused’s assertion that he was never left alone with the complainant and was unable to recall having any conversations with her during the entirety of their interactions within the same home. There is no logical or rational reason for such a restrictive measure of interaction within the same household during those access visits that spanned from Fridays to Sundays on several occasions. I reject the accused’s evidence as it relates to the degree of interaction and responsibility he had over the complainant and find that he was similar to a step-father to the children, as described by R.L. Two examples that illustrate the degree of trust and responsibility instilled within the accused was described by N.L. and included putting the children to bed and being left alone with the complainant while she went to the corner store.
208Furthermore, after careful consideration of the totality of the evidence, I also find the accused’s evidence on the issues of opportunity and his physical identification to be untruthful. The evidence from each witness in conjunction with the photo exhibits add credence to N.L.’s characterization of the accused’s identity changing which included modifications to his hair style, length and colour. She specifically disputed the suggestion from Mr. Primeau that the accused’s hair looked more like Exhibit 4, shorter hair when they dated in 2018. She further insisted that his physical appearance was predominantly long and curly which at times, included a beard. In sum, she described his hair colour to include blondish, dirty blonde, perhaps slightly on the red side, but more blonde. To her, his appearance changed frequently between weeks to months.
209In consideration of the totality of the evidence of identification, I have found that the accused physical appearance changed on a consistent basis during the times of the alleged incidents and that during this period, his appearance included hair colour, length and styles similar to Exhibit 3 and as described by the complainant.
210I am persuaded beyond a reasonable doubt that there is no question that on each of the three occasions, the acts he committed upon the complainant violated her sexual integrity as a young child.
211Each of the three incidents described by her were detailed and uncontradicted in any material way on the trial record before me. The complainant withstood cross-examination effectively and I found her evidence to increase in persuasiveness as the trial progressed with the calling of each witness. Numerous aspects of her testimony were corroborated by R.L., N.L. and the accused himself. After carefully comparing the physical descriptions and characteristics of each of the other boyfriends, I can confidently find that any suggestion of her misidentifying the accused or confusing him with another prior boyfriend of N.L. was pure speculation at best.
212I am satisfied beyond a reasonable doubt that the events as described by the complainant happened in the way she described them. I specifically reject the denials expressed by the accused with respect to each of the three distinct incidents of sexual assault, sexual interference and invitation to sexual touching. Objectively, her evidence was not contradicted in any material way as it relates to the core sexual assaults in each incident.
213The accused himself had ample opportunity to commit these sexual offences upon the complainant. Given the reliability and credibility concerns I have with his evidence, nothing he says detracts away from the totality of the evidence before me that strongly points to guilt on all three counts.
214The true risk of misidentification is weak and I am satisfied beyond a reasonable doubt that the complainant has reliably identified the accused as the individual who sexually assaulted her on three distinct occasions between January 1, 2015 to December 31, 2019. Having carefully considered the totality of the evidence before me in conjunction with the submissions of counsel, I accept beyond a reasonable doubt that the testimony of the complainant was credible and reliable in every respect of the essential elements as alleged on Counts 1, 3 and 5 of the Information.
Conclusion:
215I answer the following three questions in W.D. in the following way:
I did not find the accused’s evidence to be credible or reliable. Unless otherwise stated, I do not accept his evidence particularly as it relates to opportunity, identification and his denial with respect to these three offences of a sexual nature involving Z.B.
I have carefully considered the evidence presented by the accused in conjunction with the totality of the trial evidence. It does not leave me with a reasonable doubt on any essential elements of the offences.
The complainant was credible and her descriptions of each distinct incident of sexual touching was detailed and consistent throughout. As I carefully consider the totality of the evidence, I find beyond a reasonable doubt that her evidence was credible and reliable. Her memory was ultimately accurate as it relates to her physical identification of the accused in consideration of the nature of her repeated interactions with him and her level of familiarity. The surrounding factual circumstances expressed by Z.B. were corroborated by most of the witnesses, including the accused, adding to her reliability and credibility.
She gave detailed descriptions of each of the core allegations that remain highly convincing after cross-examination and a careful critique of her video statement and examination in chief. While uncertain on peripheral details such as dates and tattoos, her core allegations remained consistent. Based on the evidence that I do accept, I am satisfied beyond a reasonable doubt that the accused committed each of the distinct offences upon Z.B.
216Accordingly, there will be findings of guilt on counts 1, 3 and 5.
217I wish to thank Mr. Primeau and Ms. Bourassa for their effective advocacy.
Released: December 22, 2025
Justice Leonard Kim
2 June 24/25, pg. 28.
Footnotes
- Video, pg. 60 line 15.
- June 24/25, pg. 28.
- June 24/25, pg. 31.
- R. v. W.(R), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at paras. 23-25.
- Ibid, para. 25.
- June 12, pg. 80.
- June 12, pg. 78 (line 29).
- June 12, pg. 80.
- June 13/25, pg. 29.
- June 13/25, pg. 30.
- June 24/25, pg. 4.
- June 24/25, pg. 3, 6.
- June 24/25, pg. 7.
- June 24/25, pg. 17.
- June 24/25, pg. 20-21.
- June 24/25, pg. 21.
- June 24/25, pg. 22.
- June 13/25, pg. 34-35.
- June 12/25, pg. 86.
- June 24/25, pg. 77.
- June 24/25, pg. 56.
- R. v. Hibbert, 2022 SCC 39 at paras. 50-53.
- R. v. Downey, 2018 NSCA 33 at para. 53. R. v. Stevenson, 2024 SKCA 40 at para. 61.
- Stevenson, at para. 62; R. v. Bob, 2008 BCCA 485 at para. 13.
- R. v. Olliffe, 2015 ONCA 242 at paras. 38-39
- R. v. Chafe, 2019 ONCA 113 at para. 29.
- Ibid, at para. 30.
- R. v. Kytwayhat, 2021 SKCA 67 at para. 23; R. v. Bob, 2008 BCCA 485 at paras. 12-13.
- “Modern Criminal Evidence”, 2022, Greenspan, Rondinelli (Editors), Gourlay, Jones, Makepeace, Crisp, Pomerance, pg. 653, citing R. v. Downey, 2018 NSCA 33 at para. 69.
- June 12, pg. 80.
- June 12, pg. 82.
- R. v. Downey, 2018 NSCA 33 at para. 69.
- June 12/25, pg. 51, line 13-15.
- Video transcript, pg. 50.
- June 12/25, pg. 38-39.
- June 12/25 – pg. 45.
- June 12/25 – pg. 45.
- R. v. A.A., 2023 ONCA 174 at para. 17.
- June 13/25, pg. 41.
- June 13/25, pg. 42, line 1- 4.
- R. v. W. (D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
- R. v. E.M.W., 2009 NSPC 33, aff’d 2011 SCC 31 at para. 47.