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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
COURT FILE No.: Toronto Region
23-48120329
BETWEEN:
HIS MAJESTY THE KING
— AND —
CN
Before Justice C. Faria
Heard on November 24, December 8, 21, 2023, February 13, 2024
Reasons for Judgment released on May 7, 2024
Emma Haydon counsel for the Crown
Alan Sobcuff counsel for the accused CN
I. Introduction
1CN is charged with 12 sexual offences as they relate to 7 discrete incidents allegedly perpetuated on his half sister DT when she was between 8 and 13 years old, and he was between 18 and 23 years old.
2The Crown called the complainant and her sister to testify. She also filed an agreed statement of fact1 as well as the video2 and transcript3 of the complainant’s statement to police on consent.4 Also on consent, the complainant testified via CCTV with a support person seated behind her.5 The Defence called no evidence.
3The following are either conceded or not disputed:
Jurisdiction: the incidents, if they occurred, did so in the city of Toronto.
Identity: CN is DT’s older half brother, and the person DT identifies to be the perpetrator of the sexual allegations.
Age: DT was under the age of 16 at the time of each allegation.
Consent: As DT was under the age 16 at all relevant times, consent to any sexual activity is not an available defence.
4In addition, regarding 4 of the incidents alleged, the Defence made no submissions disputing that the conduct, if it occurred, would constitute a sexual offence.6
II. Position of the Parties
5The Defence submits there are significant inconsistencies between the complainant’s statement to police and her testimony in court and therefore she is neither credible nor reliable. He also submits that regarding 3 of the incidents alleged, the sexual purpose or sexual nature of the circumstances was not proven. Finally, he suggests that the discord in the family home at the time led the complainant to have both the animus and the motive to fabricate the allegations. As a result, he submits the crown has not proven any of the 12 charges beyond a reasonable doubt.
6The Crown submits there are no significant inconsistencies in the evidence of the complainant, particularly given her young age at the time of the allegations, her age when she disclosed the allegations and her age when she testified.. She submits the complainant testified in a straightforward manner, had no reason to fabricate the allegations, the core of her evidence was not shaken, and should thus be accepted. In addition, she submits the context of the disputed incidents are clearly sexual and thus she has proven all counts beyond a reasonable doubt.
III. Issues
7There are two central issues as they pertain to each of the 7 incidents alleged.
i. Is the complainant’s evidence on each of the allegations credible and reliable?
ii. Have the circumstances of count 5, 8, 9, 11, and 12, on the charges of invitation to sexual touching, sexual assault and sexual interference been proven to have a sexual purpose or to be in circumstances of a sexual nature as required, beyond a reasonable doubt?
IV. Legal Principles
A. General Principles
8As in every criminal case, CN is presumed innocent. The burden rests on the Crown to prove the essential elements of the offence beyond a reasonable doubt. The burden never shifts. Reasonable doubt is a doubt based on reason and common sense from the evidence or lack of evidence.7
A. Motive to Fabricate
9On the issue of motive, I instruct myself that the accused is not required to demonstrate the complainant had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a complainant is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility”.8
B. Credibility and Reliability
10Credibility relates to whether a witness is speaking the truth as she/he/they believes it to be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall, and recount the events must be assessed. A credible witness may give unreliable evidence.9 Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.10 The credibility and reliability of a witness must be “tested in the light of all the other evidence presented.11
11In assessing a witness’ testimonial account, I must consider its internal consistency; its consistency with previous accounts; the significance of any inconsistencies; a witnesses’ interest in the outcome of the case if any; and whether an account is inherently logical.
12To assess reliability, I must consider the circumstances of the observer, the recollection of events over time, the intentional or unintentional tainting by other sources of information; a witness’ mental capabilities and limitations if any; their level of sophistication, and to a lesser degree the witness’s testimonial demeanor to name a few.
C. Children’s Evidence
13In this case I am mindful of the fact the complainant was 8 to 13 years of age at the time of the allegations, 16 years old when she disclosed to the police, and 18 years old when she testified.
14The Supreme Court of Canada established a “common sense approach” to the assessment of the credibility and reliability of children’s evidence. Though the standard of proof remains the same, this approach recognizes that children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to [their] mental development, understanding and ability to communicate. Absolute precision as to the details of an alleged offence is unrealistic and unnecessary.12
15Inconsistencies must be addressed. They vary in their nature and importance. Some inconsistencies are minor, others are not. Some concern material issues, others are peripheral. In a child’s testimony, particularly as to peripheral matters inconsistencies are assessed in the context of age and developmental stage. Courts cannot expect the evidence of a child to have the same cohesive quality of an adult. 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.13
16I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence. Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected.14
D. Elements of Offences
17To ensure that the evidence for each allegation is carefully reviewed as it pertains to each charge, I summarize the elements of the three types of offences as follows:
18On the charges of sexual interference s.151, the prosecution must prove beyond a reasonable doubt:
i. DT was less than 16 years old at the time.
ii. CN intentionally touched DT, either directly or indirectly.
iii. The touching was for a sexual purpose.
19On the charges of sexual assault s.271, the prosecution must prove beyond a reasonable doubt:
i. CN touched DT directly or indirectly.
ii. He touched DT intentionally.
iii. The touching took place in circumstances of a sexual nature.
iv. DT did not consent to the sexual activity in question.
v. CN knew that DT did not consent to the sexual activity in question.
20On the charges of invitation to sexual touching s. 152, the prosecution must prove beyond a reasonable doubt:
i. DT was less than 16 years old at the time.
ii. CN invited DT to touch his body.
iii. The touching CN invited was for a sexual purpose.
21The test to be applied to determine whether the impugned conduct has the requisite sexual nature is an objective one, to be viewed in light of all the circumstances, and the sexual context of the sexual assault is to be visible to a reasonable observer given the body part touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant.15
22I instruct myself not to approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be a complainant of sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction.16
V. Evidence & Analysis
Credibility
23When DT was 8 years old, living in a townhouse on Dorney in Toronto with her parents, her two older brothers and her older sister, her half brother CN moved into the family home at the age of 18 in 2013.
24He was a disruption. DT testified he drank and was disrespectful to her parents when intoxicated. He caused conflict to the point that DT’s father left the family home because of him.
25DT testified about 6 incidents that she alleged occurred in that townhouse when she was between the age of 8 and 10 and one incident that allegedly occurred in another home when she was about 13 years old.
26Both DT and her older sister by 2 years, LT, testified that when DT was 16 years old, the two sisters were conversing about boys, and boyfriends, when LT asked DT if she was a virgin. DT said “kinda”, began to cry and disclosed that CN had abused her.
27This disclosure led to the police statement DT made two weeks later which was filed as evidence.
28DT testified in a direct, careful, and candid manner. She admitted her dislike for CN, and how seeing him was annoying. She called him a manipulator, an idiot, and a party-pooper to the police. She found him to be a dirty person, who did nothing, and was horrible to his girlfriend. She said he had a drinking problem. She even admitted she was happy after she disclosed that she would not have to see him again and he may go to jail.
29DT also explained CN had suffered the loss of children via miscarriages, was depressed and perhaps was trying to cope with alcohol which was sad. She described how she was cordial to him in the family home, was how he was now working.
30DT evaded no questions. She acknowledged facts against her interest. At times she admitted she did not remember. At other times she admitted she was unsure. She easily conceded she did not know answers to a significant number of questions.
31DT testified without hesitation in both direct examination and in cross-examination. She was clear, coherent, and consistent about the core of each allegation. Her responses were age appropriate as was her language and her understanding of the concepts she was testifying about. For these reasons, I find her a credible witness.
32On the issue of fabrication, the Defence submits DT made up these allegations because CN caused her father to leave, she did not like CN, and wanted to be rid of him.
33I find there is no evidence upon which to conclude there is any air of reality to this possibility for the following reasons:
(i) LT confirmed CN was the cause of their father leaving the family home. However, their father left when the family was in the townhouse, well before the move to the new home when DT made her disclosure to her sister. There is no temporal connection or evidence between the father leaving and the timing of the disclosure to substantiate, or infer DT wanted her father to move back, or that an allegation would lead to his return or any connection whatsoever between the two events.
(ii) LT confirmed DT’s description of CN as disrespectful to everyone, unclean and causing disruption. However, this had been going on for at least 10 years as CN came in and out of the family home. In fact, from DT’s testimony, she was 16 when she disclosed the abuse, which had not occurred for almost 3 years. CN was also now out of the house and working. There was no reason to be rid of CN at the time DT made the disclosure.
(iii) The timing, not the content, of DT’s disclosure can be used to assess her truthfulness, and in this instance, an alleged motive to fabricate.17 The spontaneous nature of the initial disclosure provides important context for assessing her credibility. The allegations came to light because of a very direct and personal question LT asked DT. She simply responded to an unexpected question about her virginity with confusion, emotion and the disclosure. It was LT who then told the rest of the family. It was LT and their mother who brought DT to the police. There is no evidence upon which to infer that DT was aware of any of the repercussions of her disclosure to her sister when she answered her sister’s question.
34Having found DT to be a credible witness, and that she did not fabricate the allegations, I now turn to her reliability on each charge and whether the crown has proven the sexual purpose or context of each charge, beyond a reasonable doubt.
1 Incident while napping on mom’s bed wearing blue tights (Counts 1 & 2)
35DT testified when she was 8 years old she came home after school and went to her mother’s bed for a nap. She thought no one was home. While she was sleeping on her stomach, she heard CN come up the stairs and into the room. He pulled one of her legs from her blue tights and tried to put his penis in her. She heard a friend of his in the basement, come up the stairs and say “are you trying to bang” which she did not understand. CN pretended to watch TV and then he left with his friend. DT clarified in direct examination that CN did not touch her with his penis, he only used his hands on her chest, stomach, back and legs.
36In cross-examination DT elaborated CN was listening to music on his phone or something when he came up the stairs, he got onto the bed and lay beside her before she fell asleep, the bedroom door was halfway open, she is a deep sleeper, she did not know how CN got the tight off her one leg, she thought she heard the screen door bang, she did not know who the friend was but did hear him call CN’s name. CN was gone when she was fully awake. She then went to her after school program.
37The Defence submits that given DT seemed in and out of sleep, it could have been CN’s friend who pulled DT’s leg from her blue tights. That is fanciful speculation. DT is clear CN came up the stairs and got into bed with her before she fell asleep. It was after that, that she heard the friend come up the stairs, heard the friend’s voice, and saw him. Her evidence is that it was CN who touched her with his hands, and it was him who removed one leg from her tights. It was not even put to her that it could have been someone else.
38In determining whether the removing of the tights was for a sexual purpose, I consider this was not bedtime, at the age of 8, she did not need nor ask for help to remove her clothing. She testified he touched her chest and back, neither of which is required to remove tights. She originally said that CN “tried” to put his penis in her, and in court clarified she did not see his penis and he only touched her with his hands. I do not find this to be an inconsistency. Given CN’s handling of her, and his attempt to remove her tights, successfully doing so with one leg, it is logical for DT to have described the event as he “tried” to put his penis in her. And, unbeknownst to her at the time, she heard the friend say, “are you trying to bang”, “bang” is a colloquial expression for sexual intercourse.
39DT admitted she was sleepy, and she admitted she was unsure how CN got her leg out of her tights, but the core of her testimony was unshaken. She was clear that when she was 8 years old, she was in her mother’s bed taking a nap after school when CN got into the bed with her and while she slept got one of her legs out of her tights, touched her chest, her stomach, her back, and her legs with his hands, and was interrupted by a friend who came up the stairs, at which point CN pretended to watch TV. CN was gone when DT woke up.
40The clarity, cohesion, context, and circumstances of DT’s evidence along with the language she heard, and body part CN touched lead to only one inference. I accept DT’s evidence as credible and reliable that CN touched her for a sexual purpose.
2 Incident when playing “Michael Myers” game (Counts 3 & 4)
41When DT was 8 years old, turning 9, she testified she was playing a game called “Michael Meyers” with all her siblings in her brothers’ room on their queen size bed. The game is played in the dark. One person is outside the room and says “Michael Meyers” a few times before coming into the room. The others are on the bed, under the covers, hiding. When “Michael Myers” comes into the room, that person tries to remove the covers and tag a person on the bed so they become the “Michael Meyers”.
42DT testified she was on the bed and her back was to CN as he tried to pull her pants down and put his penis in her. He tugged at her pants repeatedly and she kept pulling them up. He pulled her close to him and told her to “stop moving” and she said “stop”. She did not know if CN’s penis was inside his clothes or not. She thought he may have put a condom on. She felt his penis was hard up against her. The game stopped when their mother came home from grocery shopping.
43In cross-examination, DT testified it was dark, the TV was on, everyone was loud and laughing. She was loud but not laughing. She elaborated CN had his back to the wall and she was beside him, both facing the same way under one sheet, while LT and ST were under another sheet. All 4 were in single file under one large blanket that covered them all. JT was Michael Meyers. CN was wearing shorts. She did not know if he had taken his shorts off or not. She thought he had a condom on because it was “weird material” “on me.” She never saw a condom, or a wrapper. When CN pulled her closer, she felt “like rubber” was on the exposed skin on her back when CN pressed against her. She testified he felt “warm”, “it didn’t feel like skin” but “like plastic something on my back, it was a really weird feeling”. She said he “basically grind up against me”. She remembered her age because she was going to a program called Ladybugs at the time.
44Counsel submits this incident is implausible as CN would not have put on a condom and tried to penetrate DT while on the same bed with the other siblings.
45DT did not see a condom, nor a wrapper, and I agree that it is unlikely that CN would have put on a condom and tried to penetrate DT while two of her siblings were on the bed and all 5 were playing a game, even if it was in the dark and it was loud.
46I agree that DT was speculating and thus unreliable as to what the material of CN’s shorts were made of, what the “weird fabric” up against her back was, and that CN had put on a condom because the material felt rubbery.
47Though I do not accept DT’s evidence about what CN was trying to do: penetrate her with a condom, I do accept her evidence as to what he actually did do. CN tried to pull her pants down repeatedly, and she pulled them up. He pulled her close, told her to stop moving and she said stop. He was grinding his hard penis into her back while playing a game.
48That DT did not “call out” for assistance as counsel submits is irrelevant. She was a child, being abused by a half brother a decade her senior in circumstances where he was the adult in the room. The Supreme Court has stated plainly in L. (D.O.) that there is an “innate power imbalance which exists between the abuser and the abused child”.18 This is such an example. DT is telling CN to stop, trying to protect herself by pulling up her pants, and the presence of her, though older, still young siblings, is neither a deterrent to CN nor of assistance to DT.
49DT’s evidence was unshaken, consistent, and logical. CN directly touched DT with his penis for a sexual purpose during the playing of this game.
3 Invitation to go into closet (Count 5)
50DT testified when she was 9 years old, she was in the bedroom with the bunkbeds watching TV. CN was lying between her legs. No one else was home. She testified CN said, “Come in the closet” and that he had lotion “so it would not hurt her”. She said “no” and was trying to push him off her. He left, returned to the room, and then left when a neighbour from across the street called. DT elaborated CN was holding a clear bottle of a brown lotion in his hands at the time. When asked what she thought CN’s words meant, she said “I really don’t know what he meant by that, but I have like a little idea, but not like proper. But I don’t know but a little bit. I understand a little bit of what he was trying to say – he was going to put it on his penis, I think”.
51I accept DT remembers CN had a clear bottle of brown shimmery lotion in his hands when he told her to go into the closet and said he would not hurt her. However, DT’s honest response about what she believes CN meant, but that she is not sure that is what he meant leaves me with a reasonable doubt as to the reliability of her conclusion. I do not find this to be an invitation to have sexual activity.
4 Incident in the washroom (Counts 6 & 7)
52DT testified when she was 10 years old, her mother and siblings were on the main floor when she went to use the washroom on the second floor. CN went into the washroom shortly after and put his penis “a tiny bit” into her vagina. He told her to be quiet. She said he pulled her shorts down, and he was interrupted when their mom called him. He then pulled up his pants and left. She had been facing the window, he had been behind her. There was no ejaculation. She felt sad and disgusted.
53In direct examination DT elaborated CN had pulled down her pants and bent her over when he put his penis in her vagina for just a little bit. She estimated the penetration was a couple of seconds and she felt his hands on her.
54In cross-examination DT described the door of the washroom as being broken and she was unable to lock it, that her shorts or pants were halfway down when CN walked in, but her underwear were up. She described her underwear as only being pulled down a couple of inches. She described CN as trying to do it “quickly” and that did he did not put his penis “all the way” in. She admitted she did not see CN’s penis, only felt it as he stood behind her. Both were facing the window in the washroom. She did not repeat that CN was called away, but only that he left.
55DT described that she cried and pulled her pants up after CN left. When asked if CN left any marks on her, DT testified the only marks she had were the ones she inflicted on herself afterward when she went to her mother’s room to self harm.
56Counsel urges me to be concerned about the inconsistencies in DT’s evidence. That first DT said her mother called CN away and then said CN just left, that DT did not see CN’s penis but says it was in her vagina “a tiny bit, then says that it was on her buttocks. Again, Counsel submits that CN would not have gone to the only washroom of the home to sexually assault DT when the rest of the family was downstairs as it was “risky” and DT could have called out.
57Counsel is calling on the court to assume what CN considers “risky” with no evidence upon which to do so, and then conclude he did not proposition DT. Then Counsel calls on the court to assume that because DT did not “call out” to her family that what she testified to did not happen.
58I will do neither.
59Courts have repeatedly cautioned trial judges not to assume what “typical” conduct is for an accused perpetrator and/or an alleged victim of sexual assault.
60There is no basis to conclude CN would not perpetuate a sexual assault because the rest of the family was downstairs, particularly when the evidence is that DT testified he wanted to “do it quickly”, she already had her shorts or pants down, and he went only put it in a little bit which only took seconds.
61There is also no basis to conclude a witness, particularly a child witness, who did not call out for help against her older half brother, did not experience what she testified to.
62Courts have consistently provided guidance on the assessment of children’s testimony that requires an understanding for the age and particular perspective of the child and how they recall and communicate the experience they are testifying about. The standard of proof is the same, but rigid adult standards are unjust standards and not applicable.19 The substance of the evidence, its logic and consistency, the details of what matters to the child as the child experiences the narrative are to be evaluated.
63DT’s inconsistencies of this event are peripheral and minor. They give me no concern about the veracity and reliability of her evidence. She was in the washroom on the 2^nd^ floor of her townhouse when she was 10 years old and her half-brother CN came in, pulled down her underwear, how much does not matter, and from behind, inserted his penis in her vagina. The description his penis went in only a “little bit” is apt given CN was 20 years old and DT was only 10.
64I accept her evidence as to what happened in the washroom, she is credible and reliable.
5 Incident of kicking (Counts 8 & 9)
65DT testified that she was sitting on a chair the in living room with her siblings when, CN, who was visiting the home at the time, was sitting on a chair across from her. He put both his stocking feet between her legs and kicked her vagina which made her feel uncomfortable. She told him to stop, as did her sister, but CN continued to kick her between her legs. He was talking to her brothers while doing it.
66In cross-examination DT conceded sometimes the siblings engaged in “horseplay” which counsel suggested this was. She responded CN would “squeeze her boobs like secretly or do little nasty things” during such horseplay. She testified she did not know CN’s intention when he was kicking her between her legs, only that it was not fun for her, and he did not stop.
67Although CN knew he was assaulting DT when he kicked her between her legs, since she told him to stop, and so did LT, and although the vagina is a sexual area of the body, given the circumstances, and DT’s own lack of knowledge as to why CN was kicking her there, an available inference is that this incident was horseplay.
68As a result, I have a reasonable doubt that this physical contact was for a sexual purpose.
6 Incident at Christmas time (Count 10)
69DT testified that when she was 9 or 10 years old when she, her mother, and her siblings were in their mother’s room watching Christmas movies, Home Alone Lost in New York in particular. She went to take a break in her brother’s room to watch a different show when CN came in and said “Let’s do it quickly. Nobody’s here”. He grabbed her and she pushed him off. He said, “no one is listening, let’s do it quickly” and she again told him to “stop”, pushed him off her and said, “they’re just in the next room”. CN became angry and walked away.
70In cross-examination DT elaborated that she said “no” repeatedly and told him the rest of the family were close by. During this interaction CN touched her thighs when she was lying on the bed and when she was pushing him off her.
71Once again, Counsel submits this is an implausible scenario as CN would not proposition DT if family were close by.
72As stated earlier, there is no basis to infer “CN would not proposition” DT. DT’s unshaken evidence is not only that CN did proposition her, but that she used the presence of the rest of the family in the next room to repeatedly reject him which angered him.
73In this circumstance CN made the meaning of his invitation to be for a sexual purpose clear when he touched DT’s thighs repeatedly as she lay on the bed during this conversation.
74I accept DT’s evidence as credible and reliable and find CN did invite DT to touch him for the purpose of sexual activity.
7 Bum slapping incident (Counts 11 & 12)
75DT testified the summer before she started grade 9 when she was about 13 years old, she was in the kitchen when CN slapped her bum. She was vague in her statement to police, and upon elaboration was unsure of what she was doing, whether she was standing or doing something. In cross-examination DT was unclear about the timing of the event. She also testified she fell when she was slapped which she did not tell police. She also testified her mother heard her fall but did not ask why she fell.
76The evidence of this incident was notably vague. Important details such as the force of the slap and the result – whether DT fell or not was inconsistent. For this reason, I do not find DT’s evidence reliable about this event, and I have a reasonable doubt.
VI. Conclusion
77In conclusion I find CN:
- Guilty on:
o Count 2 Sexual Interference (incident 1)
o Count 4 Sexual Interference (incident 2)
o Count 7 Sexual Interference (incident 4)
o Count 10 Invitation to Sexual Touching (incident 6).
- Not Guilty on:
o Count 5 Invitation to Sexual Touching (incident 3)
o Count 8 Sexual Interference (incident 5)
o Count 9 Sexual Assault (incident 5)
o Count 11 Sexual Interference (incident 7)
o Count 12 Sexual Assault (incident 7)
78I will stay Counts 1, 3, and 6 of Sexual Assault pursuant to Kienapple.20
79Thank you to both parties for your fulsome submissions.
Released: May 7, 2024
Signed: Justice Cidalia C. G. Faria
Footnotes
- Exhibit 1: Agreed Statement of Fact pursuant to s. 655 of the Criminal Code, November 24, 2023. That DT provided her police statement on April 12, 2022, when she was 16 years old.
- Exhibit 2: DT video statement to Toronto Police Service, April 12, 2022.
- Exhibit 3: Transcript of DT video statement to Toronto Police Service, April 12, 2022.
- Pursuant to a s. 715.1 of the Criminal Code.
- Pursuant to a s. 486.2(1) and s. 486.1(1) of the Criminal Code.
- Counts 1, 2, 3, 4, 6, 7, and 10.
- R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 39.
- R. v. Batte (2000) CanLII 5751 (OCA) at para. 121.
- R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at para 41.
- R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.) at para 47; R.. v. J.W., [2014] O.J. No. 1979 (C.A.) at para 26.
- R. v. Stewart, 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811 (C.A.) at para 27.
- R. v. B.(G), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48.
- R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S. C.R. 30 , at para. 48, and R. v. H.G., 2009 ONCA 56 at para. 26.
- R. v. J.J.R.D. 2006 CanLII 40088 (ON CA) at paras. 46-48, leave to appeal to SCC. Refused, [2007] S.C.C.A. no. 69.
- R. v. Trachy, 2019 ONCA 622 para. ¶72.
- R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577 at para. 679-680, R. v. Darrach, 2000 SCC 46 at para. 32-37, R. v. Find, 2001 SCC 32 at para. 103, R. v. JL, 2018 ONCA 756 at para. 46-47, R. v. JC, 2021 ONCA 131 at para. 93-98, and R. v. JJ, 2022 SCC 28 at para. 1.
- R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paras. 36-39.
- R. v. L. (D.O.) 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at para. 29-31.
- R .v. R.W. 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 23-27.
- R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 SCR 729