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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
DATE: 2024 10 04 COURT FILE No.: Hamilton 998 23 47101722
BETWEEN:
HIS MAJESTY THE KING
— AND —
J.H.
Before: Justice Davin M.K. Garg Heard on: July 2, 3, 4 and September 19, 2024 Reasons for Judgment released on: October 4, 2024
Counsel: Morgan Ross, for the Crown Geoffrey Read, for the accused J.H.
GARG J.:
[1] The accused is charged with sexually abusing his young daughter. The alleged offences occurred during the summer of 2017. The complainant was eight years old at the time. She described four sexual assaults that occurred in a bedroom that she shared with her older sister.
[2] For the reasons that follow, I am convinced beyond a reasonable doubt that the accused committed some of the charged offences.
Procedural History
[3] The accused previously pleaded guilty to the offence of corrupting a child. The facts underlying the guilty plea included that he masturbated while kneeling between the complainant’s legs while she slept. This event occurred during the same timeframe as the current allegations, shortly after the fourth alleged sexual assault. I granted the Crown’s application to admit this extrinsic evidence for a similar fact purpose: R. v. J.H., 2024 ONCJ 311.
[4] The complainant described the current allegations in a video-recorded statement. I admitted into evidence a redacted version of that statement under s. 715.1 of the Criminal Code: R. v. J.H., 2024 ONCJ 348. The evidence called on the application, including the cross-examination of the complainant, applied to the trial proper on the consent of the parties.
Summary of the Allegations
[5] The evidence of the alleged offences was elicited through the complainant’s statement and in-court testimony. The complainant described four discrete incidents of sexual assault. During each incident, the accused is said to have entered the complainant’s bedroom during the night. The complainant slept in the bottom bunk and her older sister, who was 11 or 12 years old at the time, slept in the top bunk. The following alleged incidents are not necessarily sequential: [1]
First incident: The complainant was pretending to be asleep when the accused entered her bedroom. The complainant did not open her eyes. She felt the accused’s mouth on her vagina. She did not remember how the incident ended. The accused did not say anything during this incident. When asked how she knew it was the accused’s mouth, she testified, “Kind of had a lot of time to sit there and think about it and I assumed and then the one night that I opened my eyes it was clarification”.
Second incident: The complainant was lying on her bed. Her legs might have been straight. She opened her eyes and saw that the accused was down on her vagina. She felt his lips. The accused said, “Shh. Don’t tell Mommy”. He was bending down with his knees on the bed. The accused’s hands might have been on the outside of the complainant’s thighs.
Third incident: The accused put his penis in the complainant’s mouth. The complainant pretended that she could not breath and started gagging or coughing. The accused responded, “I’m sorry. I’m so, so sorry”. The complainant kept her eyes shut the entire time. When asked how she knew it was the accused’s penis, the complainant testified, “After a long time of thinking you kind of just know those things”. She did not remember if the accused moved his penis or whether it was erect. She was not certain whether she was in her bed. She did not know how long the incident lasted.
Fourth incident: The accused tried to put his penis in the complainant’s “butt”. The complainant did not open her eyes, and the accused did not say anything. The complainant knew that the accused was using his penis because “it felt the same as the other incident”. The accused kept holding the complainant up “in the downward dog pose”. The complainant believes that the accused was behind her. The accused did not penetrate the complainant because she would move away. As she tried to lay back down, the accused would return her to the previous position. The complainant testified that the incident hurt. There was a lot of pressure at or in her bum. As the complainant testified:
Q. … Can you tell us how that [incident] ultimately ended … ?
A. With me moving away ‘cause it hurt and I kept, kept trying again but I kept moving away so he just stopped.
Q. Okay. When you say that it hurt, can you describe what you mean by that?
A. A lot of pressure.
Q. A lot of pressure. And where were you feeling that pressure?
A. My bum.
[6] There were some nights where the complainant would sleep on a futon in the bedroom instead of her bed. The futon could be converted from a chair into a bed.
General Principles
[7] The Crown bears the onus of proving each and every element of the offences charged beyond a reasonable doubt. The accused carries no onus to prove or disprove anything. He is presumed innocent of all charges. The burden of proof never shifts to the defence. It is not enough for me to believe that the accused is probably or likely guilty of an offence. In that situation, I would need to acquit. While the Crown is not required to prove its case to an absolute certainty, proof beyond a reasonable doubt falls much closer to an absolute certainty than the balance of probabilities. Reasonable doubt can arise from the evidence or from the absence of evidence.
[8] The W.(D.) principles apply in this case. The accused testified and denied the offences. If I accept the exculpatory evidence or am left in doubt by it, then I would need to acquit. I need to assess whether the evidence that I do accept satisfies me of the accused’s guilt beyond a reasonable doubt. Although the W.(D.) analysis often refers to three steps, the overriding consideration is whether the evidence as a whole leaves me with any reasonable doubt about the accused’s guilt. Any evidence favourable to the accused must be considered along with the evidence as a whole. I find Code J.’s explanation in R. v. Thomas, 2012 ONSC 6653 at para. 24 to be helpful: [2]
A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.
[9] It is essential that I do not treat this case as a credibility contest. I cannot convict simply because I prefer the complainant’s evidence over the accused’s evidence. Lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30 at para. 13.
Analysis of the Complainant’s Evidence
[10] I find the complainant to be a credible witness. I also find her to be a reliable witness, subject to specific qualifications addressed later in these reasons. Other than those qualifications, I accept the complainant’s evidence.
Challenges to the Complainant’s Evidence
[11] I will address the challenges made to the complainant’s evidence. I do not accept the individual challenges to her evidence. I have also considered the cumulative effect of these challenges and find that they do not undermine her evidence.
General delay in the complainant’s disclosure
[12] The timing of the complainant’s disclosure was a central theme in this trial. The alleged incidents occurred in the summer of 2017. The complainant reported the allegations to the police about five years later in September 2022. The complainant disclosed some of the allegations to her mother shortly before going to the police. The defence elicited how the complainant did not previously disclose the allegations to anyone—her mother, her sister, or the police—despite having opportunities to do so. The complainant had a good relationship with her mother and sister. She also could have disclosed the allegations to the police back in 2017 when she spoke to them after the extrinsic conduct.
[13] I find that the delay in the complainant’s disclosure has no bearing on her credibility. I accept her explanation for why she did not disclose the allegations when she first spoke to the police as an eight-year-old in 2017. She was scared. She feared that she might be taken away by child services if she said the wrong thing. She was feeling shy, confused, and did not want to talk to anyone. I also find that nothing turns on the complainant’s decision to hold off sharing the allegations with anyone in her family for multiple years. I cannot judge the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault: R. v. A.R.J.D., 2018 SCC 6 at para. 2. In this case, it is understandable that a young child needed time to process the alleged events. The dynamics of the father-daughter relationship are also relevant to the delay in disclosure: R. v. P.S., 2019 ONCA 637 at para. 21.
Motive to fabricate
[14] The defence was more nuanced in closing submissions when it came to the delay in the complainant’s disclosure. The defence focused on how the timing of the disclosure coincided with a motive to fabricate the allegations. The defence argued that the complainant’s allegations coincided with her mother’s family court proceedings against the accused. The relevant timeline is as follows: [3]
- April 2022: The complainant’s mother served the accused with family court proceedings.
- At some point thereafter, the accused made it known that he was resisting the mother’s position, even if he had not yet successfully filed a formal response in court. He wanted access to the children, including the complainant.
- September 2022: The complainant reported the allegations to her mother and then the police.
- October 2022: The accused filed a formal response in the family court proceedings.
[15] I find that the evidence, which includes my assessment of the complainant’s testimony, does not sustain an argument that the complainant fabricated the allegations to advance her mother’s position in family court. For one, the defence theory rests on a bridge between the mother’s court proceedings and the complainant’s desire to support them. But I accept the complainant’s evidence that she was generally unfamiliar with the proceedings at the time that she disclosed the allegations. The complainant was heavily cross-examined on this issue. At trial, the complainant testified that she only learned about the family court proceedings quite recently. During her testimony on the s. 715.1 application, the complainant disagreed that she reported the allegations to her mother because she overhead that the accused wanted shared custody of her. The complainant could be interpreted as having contradicted herself at one point. But her testimony needs to be considered in context. Here is the full passage:
Q. You told your mom something that made your mom contact the police and wound up having you talking to Detective Moore, am I right?
A. Yes.
Q. And I’m just generalizing what you had to say to your mom was that your dad had done something prior to September 11, 2017 and you had been awake at the time, so you weren’t sleeping at the time that’s how come you could talk about it, how come you could know about it, am I right?
A. Yes.
Q. Yeah okay. And I want to suggest that you said that because your mother had told you that your dad was looking for some custody and she didn’t know what the court would order and so there’s a possibility that he might have some custody of you, correct?
A. No she didn’t tell me that; I disagree.
Q. She didn’t say to you that she would have to follow a court order and she didn’t think he would get custody but it was a possibility. She didn’t say that you?
A. I don’t remember having a conversation like that at that time.
Q. Because what I am proposing or it’s just a fancy way of saying what I’m suggesting to you is that she had said that and that’s when you said well you had only been pretending to sleep and that you were going to tell her about some thing or things that had happened that your dad had done, bad things your dad had done that you hadn’t told her before.
A. Yes.
I do not interpret that final “yes” as the complainant agreeing that she disclosed the allegations to her mother because she learned that the accused wanted custody of her. Her answer came after a long question. Considered in context, I find that the complainant was simply confirming when she disclosed the allegations to her mother for the first time.
[16] This is not to say that there was no foundation for the defence theory. The complainant acknowledged her awareness that the accused might re-enter her life before sharing the allegations. [4] For example:
Q. And you didn’t ask your mom, then, to say “Well does that mean I have to see him?” meaning having to see [the accused] again, you didn’t say that?
A. That is how some of the conversation went. I was asking if I would ever have to see him again. She didn’t directly say that she was fighting for custody. She – I’m not sure how the conversation went but I don’t remember her telling me about that.
[17] I found the complainant to be forthright when it came to whether the accused’s potential return to her life influenced her in making the allegations against him. I did not get the sense that the complainant was denying knowledge of the family law proceedings because she thought that admitting knowledge would undermine her evidence. The complainant had no qualms conceding that, by the time of trial, she did not want the accused in her life and had concerns about his access to other children. But she resisted the suggestion that she had these concerns at the time that she first disclosed the alleged offences.
[18] Relatedly, I must consider whether the mother had a role in generating the complainant’s disclosure. The defence argued that the complainant could have been influenced consciously or subconsciously by her mother. She lived exclusively with her mother. They had a close relationship. But I am satisfied that the complainant shared the allegations of her own volition. The complainant testified on the s. 715.1 application that her disclosure “spilled out” during a deep talk about family. She was prompted to make the disclosure when her mother “kept thinking that nothing had happened to her”. It is also notable that the complainant did not share all the allegations with her mother before giving her statement to the police. [5] It reduces the spectre that it was the mother who generated the allegations.
[19] I do note that the complainant admitted that her mother played a role in confirming the dates of when things occurred. [6] But I find that assistance with dates did not taint the complainant’s recounting of what occurred to her. I accept that the complainant shared the allegations before her mother assisted her with setting the timeframe.
[20] In sum, I find that the complainant did not invent the allegations to reduce the chances of the accused returning to her life or to assist her mother in family court. While these motives were theoretically at play, I find they were not operative in this case. It is worth noting that if the alleged offences had occurred, then it makes sense that the complainant might have been triggered to disclose them upon learning that the accused sought to re-enter her life. To be certain, I am not relying on this proposition in my reasoning. I cannot presume the events happened to then explain why the complainant came forward. Rather, I am simply pointing out that the timing of the complainant’s decision to come forward does not lead to the inexorable conclusion that she invented the allegations. A similar proposition was affirmed by the Court of Appeal in R. v. M.S.A., 2024 ONCA 477 at para. 7.
[21] While I do not find that the complainant acted on any motive to fabricate, I am not making a positive finding that she had no motive to fabricate. This is because motives can remain hidden or there may be no motive at all: R. v. Bartholomew, 2019 ONCA 377 at para. 22. I also caution myself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence. There is no burden on the accused to prove a motive to fabricate, and there is equally no burden on him to disprove that the complainant had no motive to fabricate: R. v. S.S.S., 2021 ONCA 552 at para. 38. My conclusion that the complainant did not make up the offences to help her mother or to keep the accused out of her life is not a makeweight in favour of her credibility; see also R. v. R.K., 2023 ONCA 653 at para. 46.
Presence of other people in the bedroom and the house
[22] The defence suggested that the accused would not have been able to commit the alleged offences without being seen or heard by someone else in the house. The house was relatively small for the number of people who lived there. The complainant acknowledged that one could hear other things happening in the house, including in the other bedrooms. For example, she agreed that normal speaking voices could be heard. The defence focused on two people who would have observed the alleged offences: the complainant’s mother, and the complainant’s older sister with whom she shared a bedroom.
[23] I have considered the totality of the evidence regarding whether the accused could have committed the alleged offences without being noticed by the complainant’s mother or sister. I find as fact that the accused had the opportunity to commit the offences without detection.
[24] I find that the accused could have committed the offences without the complainant’s mother noticing them. It is true that the master bedroom was close to the complainant’s bedroom. But that does not mean that someone in the master bedroom would have necessarily been aware of what was happening in the complainant’s bedroom. Furthermore, I prefer the accused’s evidence that the complainant’s mother did not use the master bedroom to sleep. Rather, the complainant’s mother slept downstairs on the couch. I will address later in these reasons whether I accept the accused’s denial of the allegations. But I accept his evidence on the sleeping arrangements, which are a straightforward matter. It does not surprise me that the accused—the parent—would have understood the household sleeping arrangements better than the young complainant. I can accept some, none, or all of a witness’s evidence: R. v. S.H., 2011 ONCA 215 at para. 8.
[25] I also find that the accused could have committed the offences without the complainant’s sister perceiving what was happening and reporting her observations.
[26] First, it is not clear to me that the sister was necessarily present during the four alleged offences. The complainant acknowledged that she normally used the bedroom with her sister every night. She also acknowledged that she essentially went to bed at the same time as her sister. When asked about whether her sister was present during each of the four alleged incidents, it prompted the following exchange:
Q. … on all of the occasions that you’ve been telling us about … [your sister] was using her upstairs – top bunk to sleep?
A. If she was there then she would have been up there.
Q. Do you have any reason to think she wasn’t there?
A. Sleepovers possibly, but I don’t want to assume. I’m just letting you know.
Q. Can you tell me what you are letting me know, you are not assuming but what is it you are saying?
A. I’m just saying that if she weren’t at home then she wouldn’t have been up there, so I’m saying sometimes.
Q. She lived at home, right?
A. Yes.
Q. And there was no other place she usually lived, right?
A. No, but sometimes we did have little movie nights so it’s possible she could have been out with a friend or downstairs.
Q. Okay. But she went to bed the same time as you.
A. Yes most of the time.
Q. Right. So as far as you know [your sister] was always there on all of the different occasions that you say things happened, the four times you say it happened?
A. I’m not sure she was there.
Q. You’ve got no reason to think she wasn’t. You’ve got nothing specific you’re saying I know she wasn’t there this time; I know she wasn’t there that time. You’ve got nothing to say like that?
A. No, I’m just saying it’s possible she could have been there and she couldn’t have been; I don’t know.
[27] While the complainant was far from certain that her sister had been at sleepovers during the alleged offences, the accused in his evidence supported the notion that the sister was not always present in the bedroom. During examination in-chief, the accused testified that the sister had a lot of sleepovers, although for the most part she was always there.
[28] Second, even if the sister was present in the bedroom during every incident, it does not determine whether the alleged offences could have occurred. I find that the accused wanted to be quiet during the incidents. He even shushed the complainant during one of them. There is no evidence that the accused’s actions were particularly loud. Defence counsel pointed out how the complainant testified to coughing during the third incident, yet there was no indication that the noise attracted the sister’s attention. I certainly would not expect people in same room to react every time that someone coughed during the night.
[29] I find that the sister could have slept through the alleged offences. There is evidence that she would sleep through noise and activity in the bedroom. I accept the accused’s testimony that the complainant and her sister would fall asleep watching television using an XBOX system. When they were asleep, either the accused or the complainant’s mother would enter the bedroom and turn the system off. This must have meant that, on a regular basis, the complainant’s sister would stay asleep when the television was on and when someone entered the room to turn it off.
Insufficient lighting in the bedroom
[30] The complainant was cross-examined on whether it would have been too dark in her bedroom to have seen the accused looking at her during the second incident. The defence did not forcefully press this argument during closing submissions.
[31] I put no weight on this challenge to the complainant’s evidence. There were plenty of light sources available in the bedroom. This was not a pitch-black room. The complainant’s bed was next to a fairly large double window with a streetlight somewhere outside. The evidence did not establish that drawn curtains would have kept out any outside light. Furthermore, light could have easily seeped into the bedroom from elsewhere on the top floor. The accused agreed that they kept the light on in the nearby upstairs bathroom, with the bathroom door open, to serve as a nightlight for the children. The accused also agreed that there was enough light in the complainant’s bedroom such that a person would not bump themselves or trip over furniture.
Acceptance of the Complainant’s Evidence
[32] I accept the core of the complainant’s account when she says that she was sexually assaulted by the accused.
[33] First, the complainant was unshaken when describing the sexual abuse that she sustained. There were no material inconsistencies that undermined her credibility or reliability. However, the absence of inconsistencies is not a makeweight in favour of credibility.
[34] Second, the complainant was direct and forthright in her testimony. She gave her testimony in a “no-nonsense” fashion. It is to her credit that she readily recognized what she did not remember or where she was filling in the details. I provide one example of where I found the complainant to be particularly forthright. The defence confronted the complainant on how she could not prove her sister’s absence from the bedroom. I found the complainant’s response to show her maturity. She did not force a scenario where her sister would have been out of the home. I got the impression that the complainant was simply presenting the court with her best recollections:
Q. And [your sister] was always present in the room, maybe she was asleep or not, but she was always there wasn’t she?
A. I don’t know.
Q. Well you haven’t got any evidence to say that she was somewhere else or not there that night?
A. You’re right I don’t.
[35] Third, a related point is that the complainant refrained from exaggerating or embellishing her evidence. For example, she could have simplified her account by saying that she opened her eyes more often, saw more of what was happening, or saw the accused using his penis. But the complainant stuck to what she knew. She testified in accordance with her recollection of the events. To be certain, the absence of embellishment or fabrication is not a makeweight in favour of credibility. It is simply the absence of a factor that could have undermined her credibility: R. v. Alisaleh, 2020 ONCA 597 at paras. 16-17.
[36] Fourth, the level of detail and recollection in the complainant’s evidence gave it a ring of truth. The degree of detail that she observed in the moment of each incident, supplemented by the details that she inferred after contemplating the incidents, aligns with how a person in her shoes would have experienced what had happened. It would not make sense for her to have known in the moment every detail of what was occurring. And if the events made a mark on her, I would have expected her to think about them and come to appreciate more details—especially since she was only eight years old at the time of the incidents.
[37] To illustrate this point, I highlight the complainant’s evidence about the third incident. I find that the complainant was being truthful when she acknowledged that she did not know it was the accused’s penis in her mouth at the time of the incident. She acknowledged that she spent time thinking about what had happened to her and came to believe that it was his penis. Quite apart from whether this evidence can establish the accused’s guilt on the third incident, I find that the complainant’s evidence in this area supports her testimonial credibility overall; see R. v. J.P., 2024 ONCA 731 at paras. 21-22. I excerpt a relevant passage:
Q. … you spent a long time thinking then decided it was a penis in your mouth. …
A. Yes.
Q. Okay. So when you say you spent a long time thinking, when was it that you had spent a long time thinking?
A. When I was playing on a playground, eating my food, I had plenty of time to think about it.
Q. Oh okay afterwards?
A. Yes.
Q. Okay. Not at the time?
A. No. Of course I was wondering what it was but I figured out later on.
Q. Right. So at the time of that event you claimed happened you didn’t know what was in your mouth?
A. No not exactly.
[38] Fifth, I watched how the complainant testified. I caution myself to not place undue reliance on her demeanour. It is difficult to say how a credible complainant would present on the stand as compared to an incredible one: see R. v. Reimer, 2024 ONCA 519 at para. 93. But there is a reason that appellate courts defer to how triers of fact see the testimony unfold in real-time. Notwithstanding the extreme caution required, I found the complainant’s emotions to be authentic. Her testimony was compelling.
[39] Finally, I put no weight on the extrinsic evidence that was admitted for a similar fact purpose. The Crown relies on the extrinsic evidence to assist in proving the actus reus of the alleged offences. I am satisfied that the offences occurred without resorting to the extrinsic evidence. Nevertheless, given that I heard the extrinsic evidence multiple times during the trial, I have reminded myself during the deliberative process to not infer guilt based on the accused having a general disposition to commit crimes: see R. v. J.W., 2022 ONCA 306 at para. 31.
Analysis of the Exculpatory Evidence
[40] I must consider the exculpatory evidence, which predominantly came through the accused’s testimony. If I accept the accused’s denials that he committed the alleged offences or am left in doubt by them, then I must acquit. I do not consider the accused’s evidence in isolation. I must consider it in conjunction with the evidence as a whole: R. v. Vigon-Campuzano, 2022 ONCA 234 at paras. 24, 38.
[41] I do not accept the accused’s denials. Nor do they leave me in doubt when it comes to whether he committed the alleged offences. The accused testified credibly and reliably on peripheral matters, some of which supported the complainant’s account (e.g., the lighting conditions in the bedroom, the overall sleeping arrangements in the house). But when pressed on other activity of a sexual nature in the complainant’s bedroom, the accused gave combative and shifting evidence that causes me to reject his denials.
[42] The Crown put to the accused the facts from the guilty plea that made up the extrinsic evidence. I reproduce those facts since they are pertinent to my analysis of the accused’s testimony:
[The complainant] was sleeping on a mattress that was positioned on the floor. At approximately 1:30 in the morning … [the complainant’s mother] was doing laundry and went to gather some clothes from the girls’ bedroom. [The mother] observed the door of the room slightly open; and, upon opening the door, she observed [the accused] kneeling between the legs of the – of eight-year-old [complainant] with his pants down to his knees, and he was obviously masturbating. [The complainant] was asleep and laying on her stomach. She had her legs apart, she was not wearing underwear. An argument ensued downstairs between [the mother] and [the accused], in that she had found him in flagrante delicto. And [the complainant] was taken to McMaster Children’s Hospital, where a sexual assault evidence kit was conducted. It appears to be conceded that [the accused] did not actually touch [the complainant] in any way.
[43] When the Crown put to the accused the admitted fact that he had been found masturbating in the complainant’s bedroom, the accused responded, “I wasn’t caught masturbating, no”. When the accused was given an opportunity to read the guilty plea transcript, he maintained that he was not caught masturbating. He confirmed that the complainant’s mother walked into the bedroom when he was between the complainant’s legs. But he added: “… but I was about to cover up. My pants were on”. I took from this exchange that the accused was admitting that he had been masturbating but was taking issue with two facts on the plea: (a) that he had been caught masturbating; and (b) that he was found with his pants down to his knees. The accused made it clear later in his testimony that he was not disputing that he had been masturbating in the bedroom. Rather, he was disputing that he masturbated while between the complainant’s legs.
[44] What actually happened on the night of the extrinsic conduct is not germane at this stage. [7] The relevance, rather, is that the accused’s denial of some admitted facts causes me to question his honesty with the court. Certain facts on the guilty plea and the associated portions of the accused’s testimony cannot both be true. The accused must have misled the court on one occasion—either during the guilty plea or while testifying before me. The accused would have me believe that it was during the guilty plea. But that does not improve my assessment of his credibility. This was not a guilty plea where the defence lawyer admits the facts as substantially correct. Rather, Leitch J., the presiding judge on the plea, asked the accused’s lawyer whether the facts were acknowledged. The lawyer responded, “Yes; I’m instructed [the accused] admits those facts as correct”. The lawyer turned to the accused and asked him to confirm this understanding. The judge then asked the accused in no uncertain terms, “You admit those facts?” The accused responded, “yes”. The court entered the finding of guilt at that point in time based on the facts that the accused had admitted. While the accused’s lawyer later added supplemental facts, those facts were not inconsistent with the facts already admitted. For example, the supplemental facts did not change that the accused had been caught masturbating with his pants down. In view of this context, I find it significantly damaged the accused’s credibility when he testified before me that, “I only agreed to some of those facts. And the one fact I did not agree to that I was being caught masturbating which I was not”. This statement was simply untrue.
[45] The accused’s evidence in this area struck a significant blow to his testimonial credibility. I reject the accused’s denials regarding the alleged offences, and I am not left in a state of reasonable doubt by his denials.
[46] I disregard questioning in cross-examination that suggested the accused could have masturbated somewhere other than the complainant’s bedroom. There was no objection by the defence to this questioning—even when I paused to consider its appropriateness. Upon reflection, I find that this questioning sought to elicit irrelevant evidence. It called on the accused to explain his actions for the extrinsic conduct. The accused never should have been required to proffer an explanation. The explanation that he provided thus plays no role in my negative credibility finding. While the accused’s lawyer explained at the guilty plea why the accused chose the complainant’s bedroom, [8] the legitimacy of that explanation was not in issue at this trial. My ruling on the similar fact application required the Crown to accept what was admitted at the guilty plea. [9]
Conclusions
[47] I explained why I accepted the core of the complainant’s account. My acceptance of the complainant’s evidence beyond a reasonable doubt contributes to my rejection of the accused’s evidence: R. v. A.I.B., 2023 ONCA 557 at para. 12; R. v. R.D., 2016 ONCA 574 at para. 20. To be certain, my acceptance of the complainant’s account did not create a corollary that I needed to reject the accused’s account. I considered that exculpatory evidence and rejected it: A.I.B. at paras. 16-18; R. v. Van Deventer, 2021 SKCA 163 at paras. 15, 25.
[48] I find that the accused entered the complainant’s bedroom and sexually abused the complainant on multiple occasions between June 1 and September 10, 2017. I am satisfied beyond a reasonable doubt that the accused committed the second and fourth incidents.
[49] I will first summarize my findings on the incidents where I have a reasonable doubt:
First incident: It is most likely that the accused committed the first incident. However, in being certain that the accused committed this offence, I would need to rely on my conclusion that he committed the other offences. The complainant herself relied on the second incident, where she opened her eyes, to fill in the gaps on what happened during the first incident. Given that the Crown did not bring a count-to-count similar fact application in this case, I am not convinced beyond a reasonable doubt that the accused committed the first incident. The evidence on this specific incident is not sufficiently reliable.
Third incident: It is most likely that the accused put a body part in the complainant’s mouth such that it caused her to gag and him to apologize. But I cannot be certain that the accused used his penis. The complainant’s belief that the accused used his penis is a detail that she surmised over time. The complainant’s process in forming her belief was reasonable and understandable, as I explained when assessing her credibility. But the complainant’s recollections of the incident prevent me from being certain that the accused used his penis. Without the certainty of this fact, I cannot be satisfied beyond a reasonable doubt that the accused violated the complainant’s sexual integrity or had a sexual purpose in his actions.
[50] I now summarize my findings on the incidents where I am satisfied of the accused’s guilt beyond a reasonable doubt:
Second incident: I find that the accused entered the complainant’s bedroom while she was sleeping and put his mouth on her vagina. The complainant opened her eyes and saw what the accused was doing. She gave evidence on what she felt. The sexual nature of this incident is patent.
Fourth incident: I find that the accused used a body part to touch in or around the complainant’s bum or anus. I make this finding based on how the complainant described the incident and specifically because she described pain and pressure in the area. As with the third incident, I cannot be certain that the accused used his penis. The complainant’s testimony that the accused used his penis was premised on her belief that he did so during the third incident. But whether the accused was using his penis, finger, or another body part, I am satisfied beyond a reasonable doubt that he touched the complainant for a sexual purpose and thereby invaded her sexual integrity. There are differences between the third and fourth incidents. The assessment of sexual purpose requires an objective analysis: R. v. Sharpe, 2001 SCC 2 at para. 50. I have no doubt about the sexual purpose given the nature of the body part being touched (the complainant’s bum); the nature and context of the touching (such that it caused the complainant to feel pain and pressure); the duration of the touching (the accused kept holding the complainant “in the downward dog pose” and returning her to that position when she tried to lay back down); and the location of the interaction (in the complainant’s bed).
[51] I decline to use the similar fact evidence to make a finding of fact that the accused used his penis during the third and fourth incidents. While the extrinsic conduct was sufficiently similar to the allegations to warrant admission, I cannot use similar fact reasoning to specifically find that the accused forced his penis into the complainant’s mouth and tried to force his penis into her anus.
[52] I am satisfied that it was the accused who committed the fourth incident even though the complainant did not open her eyes and identify the accused. The accused was the only sexually mature male in the house. Having found that the offence occurred, there is no reasonable possibility of it being someone other than the accused.
[53] In conclusion, the Crown has proven beyond a reasonable doubt the elements of sexual assault for the second and fourth incidents. The accused applied force when he touched the complainant. The touching was intentional. It violated the complainant’s sexual integrity. The complainant did not and could not consent to the touching. The Crown has also proven beyond a reasonable doubt the elements of sexual interference for the second and fourth incidents. The accused intentionally touched the complainant’s body for a sexual purpose while she was under 16 years old.
Verdicts
[54] I find the accused not guilty on counts 1, 3, 5, and 7. I find the accused guilty on counts 2, 4, 6, and 8.
Released: October 4, 2024 Signed: Justice Davin M.K. Garg
Footnotes
[1] Exhibit 3, Transcript of Redacted Statement at pp. 14, 19.
[2] See R. v. Ramos, 2020 MBCA 111 at para. 149.
[3] See also Exhibit 8 in these proceedings.
[4] While the complainant had seen the accused at certain family outings following the alleged offences, it stands to reason that the complainant had concerns about the accused returning to her life to a more significant degree.
[5] Exhibit 3, Transcript of Redacted Statement at p. 21.
[6] Exhibit 3, Transcript of Redacted Statement at p. 8.
[7] See R. v. J.H., 2024 ONCJ 311 at para. 31.
[8] During the supplemental facts, the accused’s lawyer said, “My client, simply put, has explained to me that he has, what he himself describes as a sex addiction. In this case, he indulged it … . The place in which he chose to do it was the only place in that house at the time where he could use an adult pornographic recording in a device that was located in the child’s room … .
[9] See R. v. J.H., 2024 ONCJ 311 at paras. 32-33.