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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE

DATE: January 6, 2020

COURT FILE No.: Central East Region: Oshawa Court 18-35352

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.H.

Before: Justice Peter C. West

Heard on: October 28 and 29, 2019; November 15, 2019

Judgment released: January 6, 2020

Counsel:

• Mr. B. Guertin — counsel for the Crown
• Mr. B. Scott — counsel for the accused S.H.

JUDGMENT

WEST J.:

Introduction

[1] S.H. is charged with sexual assault and sexual interference respecting J.D., age 12 years. The offences are alleged to have occurred during the early morning hours of May 27, 2018. The Crown called one witness, J.D. S.H. testified on his own behalf, his daughter P.H.; his wife, Ms. H.; and the manager of the Beer Store where he worked, A.G., also testified for the defence.

[2] At the commencement of the trial, Mr. Scott on behalf of S.H. made the following admissions: 1) identification of the defendant; and 2) the video-taped police statement of S.H. was voluntarily given and can be used by the Crown in cross-examination.

[3] The sole issue in this case is whether on the totality of the evidence called by the Crown and defence the Crown has proven beyond a reasonable doubt the sexual assault/sexual interference alleged by J.D. was committed by S.H.

[4] The defence argued what J.D. felt when she was awakened in the basement was the dogs jumping onto the mattress she was sleeping on and brushing against her, as well as feeling S.H. stepping between the mattress and the couch and his leaning against her trying to grab one of the dogs, Prince, to retrieve him and then return him back upstairs to put in the crate. S.H. denied rubbing and touching J.D.'s butt or hip or her breasts or her groin or vagina area or that he attempted to put his hand under her shorts by her hip.

Legal Principles

[5] As in any criminal case, S.H. is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[6] The onus remains on the Crown to prove S.H.'s guilt beyond a reasonable doubt throughout his trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[7] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.

[8] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 311 at para 5 noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[9] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[10] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus, supra.

[11] I have also reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[12] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

[13] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56, is "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence," (see R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15.)

[14] Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[15] These are the principles I must use in my assessment of the totality of the evidence led during S.H.'s trial.

The Offences: Sexual Assault and Sexual Interference

[16] The elements of the offences charged are not disputed by counsel and therefore, I intend to only briefly address the essential elements of the two offences charged.

A. Sexual Assault

[17] Sexual assault requires the Crown to prove the following essential elements beyond a reasonable doubt:

i) That the defendant intentionally applied force;

ii) the complainant did not consent to the force that the defendant intentionally applied;

iii) that the defendant knew that the complainant did not consent to the force that he intentionally applied; and

iv) that the force that the defendant intentionally applied took place in circumstances of a sexual nature.

[18] The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature, the fact that sexual assault is a general intent offence, and the requisite elements of the offence: R. v. Chase, [1987] 2 S.C.R. 293, at para. 11 [Chase]; R. v. Jarvis, 2019 SCC 10, [2019] S.C.J. No. 10, at paras. 50, 124-125; R. v. Ewanchuck, [1999] S.C.J. No 10. The test outlined in Chase is still the focus in most sexual assault trials involving touching:

…The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body 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. [Citations omitted.]

[19] Relevant to this case, it is important to keep in mind that the "force" need not be forceful. Even a gentle touch will suffice: R. v. R.V., 2019 ONCA 664, [2019] O.J. No. 4355 (C.A.), at paras. 109-116. Finally, the Crown does not have to prove a sexual purpose for the touching: R. v. Trachy, 2019 ONCA 622, [2019] O.J. No. 3867 (C.A.), at paras. 70-74 [Trachy].

B. Sexual Interference

[20] The purpose of this section is to protect children from any sexual contact with adults: R. v. E.C., 2019 ONCA 688, [2019] O.J. No. 4460 (C.A.), at para. 14. Sexual Interference requires the Crown to establish the following beyond a reasonable doubt:

i) That the complainant was under the age of 16 at the time of the offence;

ii) that the defendant intentionally touched the complainant whether directly or indirectly; and

iii) that the touching was for a sexual purpose.

[21] Sexual interference is a crime of specific intent: R. v. B.J.T., [2019] O.J. No. 4503, at para. 37 [B.J.T.]; R. v. Bone, [1993] M.J. No. 222 (C.A.). The Crown must prove that the touching was done for a sexual purpose: Trachy, at para 70. While the defendant may have another reason for the touching, if he also has a sexual purpose, the offence is proven: B.J.T., at para. 37.

Factual Background

Evidence of J.D.

[22] The Crown introduced pursuant to s. 715.1 of the Criminal Code J.D.'s video-taped statement to Detective Ahee on May 31, 2018, Exhibit 1, which she adopted as being the truth. The defence consented to the introduction of her police statement, which was played in court. J.D. and P.H. had been best friends for approximately a year and a half. During that time, they were inseparable. They had known each other since kindergarten as they attended the same school. J.D. had gone to P.H.'s house on May 25, 2018 for a two night sleepover to celebrate P.H.'s birthday. She was 12 years old. She had been on one prior sleepover, the previous year, which was also for P.H.'s birthday and other girls were involved.

[23] J.D. testified she and P.H. would have lunch at P.H.'s house during the school week because they took the two dogs, Scarlett and Prince, both Pugs, for a walk. P.H.'s house was close to their school. They would often go to P.H.'s house after school, where J.D. would see P.H.'s parents. J.D. knew both of P.H.'s parents from visiting and got along well with them. Prior to the incident, J.D. and P.H. were getting along perfectly fine. The evidence disclosed that after S.H. was arrested J.D. and P.H. stopped being friends.

[24] J.D. went to P.H.'s house after school on Friday May 25 for a sleepover for two nights to celebrate P.H.'s birthday. They slept in the basement. There was a mattress on the floor that J.D. slept on and P.H. slept on the couch, which was beside the mattress. J.D. brought a sleeping bag to the sleepover, which she opened up and she slept under, using it as a blanket. P.H. testified that her mother made up the mattress and Ms. H. confirmed this. P.H. could not recall if J.D. had brought a sleeping bag. Everything was normal on Friday night into Saturday morning.

[25] S.H. slept on a couch in the living room every night because he stayed up late watching TV and often had to take the two dogs out for a walk to do their business. The two dogs were kept in a gated octagon enclosure in the kitchen, which was attached to a dog crate (see Exhibits 9 [house where incident alleged to have occurred] and 15 [new house kitchen to show how octagon and crate set-up looks when everything was attached], which shows the gated area for the dogs in the kitchen). S.H. testified he would put a harness on each of the dogs and take them out, one at a time, through the front door to go for a walk. He testified he would put the harness on the dogs while they were still in the gated octagon and then take them outside through the front door. Ms. H. testified her husband took dogs out through basement to let them into backyard through a sliding door, however, this would have required S.H. to walk down the stairs to the basement, which he said was very difficult for him because of a previous injury to his ankle. S.H. did not describe letting the dogs go outside through the sliding door in the basement at night.

[26] Ms. H. slept in master bedroom on the second floor by herself each night with her bedroom door open. P.H.'s bedroom was across from Ms. H.'s bedroom at the top of the stairs on the second floor. On the night of the sleepover, P.H.'s sister, A.H., also had a friend stay over and they slept in A.H.'s room, which was also on the second floor.

[27] On Saturday night P.H. and J.D. were in the basement watching TV. P.H.'s mom was already in bed. At some point they fell asleep and at approximately 3:00 a.m. J.D. was awakened. She did not know exactly what woke her up but she realized there was a man lying beside her on the mattress who was touching her. Initially J.D. thought it was P.H. touching her in her sleep but when J.D.'s eyes adjusted to the darkness and she looked at the couch, she saw P.H. sleeping. J.D. said she was freaking out and did not know what to do so she texted P.H. who was sleeping. It was pretty dark. The TV was off but it was not completely off, so there was a dull light and she testified she could see a little bit. She realized it was P.H.'s dad lying beside her. There were no other men in the house that night other than S.H. She turned away towards the TV. She felt him touching and rubbing her on her butt over her clothes. He was under the sleeping bag J.D. was under. J.D. told the police S.H. was wearing a red shirt and shorts.

[28] When it started J.D. said S.H. used one hand to grab and rub her hip area. His hand moved over top of her shorts she had worn to bed, to her vagina or groin area. He was rubbing around here a couple of times. He was not touching her actual vagina but he was trying to. He was doing this over her clothes. He also was touching her breasts over the top she was wearing. At one point he started attempting to go underneath her shorts by her hip and she got up off the mattress and went into the washroom with her cell phone. She texted her friend Lauren when she was in the washroom because she wanted to talk to somebody about what was happening and what she should do. P.H. had not responded to her earlier texts/emails. She did not know what S.H. did before she woke up but she did not believe he had gone under her shorts, because when she woke up, he was still above her shorts. S.H. seemed to be pretending to be asleep at one point lying on the mattress beside her. She did not know what to do and she did not think she could cry out or call to P.H. because she did not know what S.H. would do to her, if she did.

[29] When J.D. first woke up she did not know what to do, so she texted P.H. She was turned away from S.H. and where P.H. was on the couch. She had her cell phone and used it to text P.H. She put her cell phone on the floor beside the mattress in front of the TV. Exhibit 2 are the text messages sent by J.D. to P.H. on May 27, 2018 starting at 2:59 a.m.

P.H.? 2:59 AM

U awake? 2:59 AM

P.H.? 3:01 AM

Plz 3:01 AM

There's someone on the bed beside me!!!! 3:01 AM

[30] When J.D. sent these texts, she did not initially know it was S.H. on the mattress lying beside her. J.D. sent another message at 3:09 a.m., which said "Heyyyyy" but P.H. did not respond until 3:23 a.m., when she texted, "can't sleep now." These texts are part of Exhibit 3, which reflects P.H.'s Instagram account, on May 27, 2018, starting at 3:09 a.m. The following texts were sent from 3:09 a.m. onwards:

Heyyyy (J.D. to P.H.) 3:09 AM

Can't sleep now (P.H. to J.D.) 3:23 AM

Same [sent by J.D. to P.H.] 3:32 AM

Hello [sent by J.D. to P.H.] 3:37 AM

Hii [sent by P.H. to J.D.] 3:54 AM

Holaaaa [sent by J.D. to P.H.] 3:54 AM

[31] When she came back from the washroom J.D. said she laid on her back on the mattress. S.H. was still there, J.D. said she did not know what to do and was scared about what S.H. was going to do to her. She pretended to be asleep. He was mostly touching her butt over her clothes. At one point he said to her he "can't sleep." He was sharing her pillow and was hugging her. He told her "come cuddle." J.D. thought she got up one more time and went to the bathroom. When she came back she tried lying on the floor but S.H. told her to get back on the mattress. She said in her statement he yelled and was upset with her and told her that she was not going to sleep on the floor. He was clearly mad but then he did not saying anything more. In cross-examination, J.D. testified S.H. did raise his voice a bit when he told her to get back on the mattress and P.H. did not say anything. J.D. thought he did not want P.H. to know he was there. At some point she and P.H. said they were going to turn on the TV, which they did. When J.D. was asked by the officer what time it was she said "fourish/four-thirtyish, something around there." J.D. said at one point S.H. asked her why she was not wearing pajamas and told her to change. When J.D. went into bathroom the second time she put on another pair of shorts.

[32] J.D. testified she smelled the odour of beer on S.H.'s breath when he was lying on the mattress beside her. She testified he went upstairs at one point and came back down and appeared to be stumbling. J.D. told the police she saw S.H. give P.H. the middle finger after they turned on the TV and he went upstairs for good. In cross-examination J.D. testified she believed S.H. went up and down stairs a total of four or five times.

[33] As indicated above, J.D. also texted another friend, Lauren, when she was in the bathroom the first time. Her texts to Lauren are found in Exhibit 4a-4d. The texts she sent in the bathroom are in Exhibit 4a and the other texts were sent when she woke up before she went to McDonald's and then later in the day:

I know your most likely sleeping. But you're the only one I trust enough with this. Could we please talk when you are available? I seriously can't stop shaking and I'm on a mattress crying…I'm at a sleepover with P.H. and I don't want her to notice anything. 3:52 AM

It's really important and I don't know what to do. 4:14 AM

[All of the above messages sent from J.D. to Lauren, with no response by Lauren]

HI 9:12 AM

WAKE UP 9:12 AM

PLEASE 9:12 AM

i'm sorry so sorry I was tired 9:12 AM

[All of the four texts above, were sent by Lauren to J.D.]

I'm awake (J.D. to Lauren) 9:15 AM

Can't talk now though. Later tho please. (J.D. to Lauren) 9:16 AM

sure. Are you alright now though? (Lauren to J.D.) 9:17 AM

Yeah I think so. (J.D. to Lauren) 9:17 AM

Photo (Lauren to J.D.) 9:17 AM

There's seriously something I desperately need to tell somebody about…are you available to hangout tonight? (J.D. to Lauren) 2:04 PM

Most likely (Lauren to J.D.) 2:21 PM

Would you like to tell me now? (Lauren to J.D.) 2:21 PM

Can't do it over text. (J.D. to Lauren) 2:22 PM

okay, I won't be home for a bit. everything going to be alright? (Lauren to J.D.) 2:22 PM

Yeah. (J.D. to Lauren) 2:23 PM

[34] J.D. testified at some point during the time of the sleepover the two dogs were downstairs but she and P.H. brought them down. S.H. was downstairs at times when the dogs were not in the basement. P.H. said it would be fine to bring the dogs downstairs. When the dogs were downstairs S.H. was in the basement too. He had already been in the basement, just him and the dogs came later. They came down and stayed for 10 minutes and then P.H. and J.D. brought them back upstairs. In cross-examination J.D. testified she and P.H. had gone upstairs to get the dogs to bring them into the basement. S.H. did not come downstairs to get the dogs and bring them back upstairs to the kitchen. S.H. was lying on mattress beside her and the dogs were not in the basement when he was touching her. S.H. did not retrieve Scarlett or Prince from the mattress. When they went upstairs to get the dogs they were in their crate. S.H. was not touching her when the dogs were downstairs. At some point S.H. told P.H. to bring the dogs upstairs and J.D. went with her. They put the dogs back in the crate and nobody else was in the kitchen. J.D. testified she was sure it was not the dogs she felt touching her. What S.H. was doing to her did not feel like a little dog. She first noticed touching when she woke up and then it continued and went on for a period of time. After she woke up and her eyes adjusted she saw it was S.H. on the mattress lying beside her and touching her.

[35] J.D. woke up in the morning around nineish and S.H. was sitting right in front of her and he just said hello. She thought he was wearing the same clothes. When she came upstairs he gave her a hug and kissed her on the top of her head. J.D. did not tell P.H. about what happened the previous night. She met Lauren in the park about 4:30 p.m. and told her she would tell her later what happened because she wanted to tell her parents first. When she got home later she told her mom and dad what had happened. She went with her parents the next day and spoke briefly to a police officer, made an appointment to be interviewed and came back and provided the video-taped statement (May 31, 2018).

[36] J.D. told the police she thought S.H. was doing something special at his job – the Beer Store, on Saturday, May 26, 2018. She told the police in her statement there was a fund raiser or something.

[37] J.D. testified S.H. had asked her to accept him as a friend on her Instagram account. She did not respond and he asked why she had not accepted him. None of her other friend's parents had ever asked her to add them to her Instagram account. J.D. thought it was "weird" and was not something a parent would normally do. In cross-examination it was suggested to J.D. this was just S.H. wanting to keep tabs on P.H. or his wanting to be able to get in touch with P.H. J.D. did not think it would be right for a parent to do this. S.H. told J.D. on one occasion he would save her over P.H.

Evidence of S.H.

[38] He has worked for the Beer Store for almost 30 years. He broke his ankle 8 years before the sleepover, which still caused him great discomfort. He had difficulty climbing and going down stairs. He testified since his injury and surgery he always walked the way he did in the courtroom to get to witness stand, which was walking with a very pronounced limp. He testified he also tore muscles in his shoulder 5 years previously, although the medical report filed by the defence, Exhibit A, indicated there was no tear to his right shoulder tendons and muscles.

[39] He has been married to Ms. H. for 20 years ago. He has two daughters, A.H. – age 16 and P.H. – age 14. He has 8 nieces in his extended family. He has two pugs, Scarlett – 3 years old and Prince – 2 years old. His routine is to take dogs out for their walk in the front or they are taken into the back yard.

[40] He first met J.D. many years ago but did not see her much. Then about a year before the sleepover J.D. was coming regularly to their house. He went out with P.H. and J.D. a couple of times.

[41] The reason he asked J.D. to friend him on her Instagram account was so he could get in touch with P.H. if he needed to speak to her, as she was always on her phone.

[42] The dogs were very energetic. If walked at night he would put a harness on them and take them out the front door for a walk. He would take them out one at a time. If they got out of their pen they would usually run upstairs.

[43] J.D. was at our house for a two day sleepover for P.H.'s birthday, May 25 to 27, 2018. The dogs went downstairs into the basement and he had to go after them to bring them back and put them in their pen. When he unlatched the pen, Scarlett ran downstairs and Prince followed her. S.H. then testified "More than likely the dog pushed its way out." Generally, they ran upstairs but the door was open to the basement and they ran downstairs. It took him 2-3 minutes to go downstairs and the stairs made noise when he used them. He made grunting noises when he went down the stairs. He grabbed Scarlett and put her up in the pen. P.H. was lying on couch with her head facing the washroom. He did not recall if she was awake.

[44] Prince was on the mattress on the northwest corner. There was maybe five inches between the mattress and the couch. He put his left foot in the "trench" between mattress and couch. He had to move down the "trench" sideways. He extended himself across the mattress. Prince was very quick and he was just over a year old and full of energy. S.H. testified he normally did not let the dogs go downstairs. He came into contact with J.D. who was lying on the mattress when he extended himself. He placed his right knee on the mattress to grab Prince. It was fairly dark with not much light. The TV was not on and the bathroom light was not on. S.H. denied touching J.D. inappropriately. He never asked her to change her clothes. He denied giving his daughter the finger. He was not drunk that night, although he admitted to consuming 4 tall boy cans of Coors Light. He testified he would not have driven a car. He never yelled at J.D. He went up and down the stairs four times. He worked at 10 a.m. and told the girls he would take them to McDonald's for breakfast. He was not wearing a red shirt. He was wearing his Beer Store shirt, which was grey and black. He denied lying on the bed to sleep. He denied wanting to share J.D.'s pillow.

[45] He probably hugged J.D. when they got up. He does not demand hugs. He did not think he kissed the top of J.D.'s head. When he hugged her, maybe his chin touched the top of her head. He does not wear pjs to bed, he wears his uniform from work. He has difficulty lifting his right arm above his head.

[46] In cross-examination S.H. said he had been working at the Beer Store at […] St. for 4-5 years and it was the second time he had worked there. He was an Assistant Manager in 2018 and had been in that role for 8 years. He runs the store, does customer service. He does some stocking but he tries to limit it. He does lots of paperwork. A full case of beer is between 28-35 pounds. He injured his ankle 8 years ago and he always has a limp. The Crown suggested he was not limping when he was at the station when he was arrested but he said he did not know if he was or not. He was arrested on June 5, 2018, and the Crown played the beginning of the statement video, which showed when he walked into the interview room he was not limping. He did not agree with the suggestion he was putting on a bit of a show with his limping in the courtroom. He agreed alcohol can affect balance and coordination. It can also cloud memory and recall.

[47] He agreed his work at the Beer Store required lifting but he did not do as much as he used to. He agreed he was on his feet most of the time when he was working. He agreed he would be reaching for items regularly.

[48] There is a TV in the basement. There is a door at the top of the stairs from the kitchen on the main floor to basement. There is no door at the bottom of the stairs. The door at the top of the stairs is usually closed.

[49] S.H. agreed he was arrested about a week after the incident. Detective Ahee went through the allegations with him. He knew she was alleging he touched her in basement and he knew the details of her allegations. The things that happened were fresher in his mind when he gave his statement. S.H. knew J.D. It was S.H.'s position he did not really have a relationship with J.D. Initially he said he generally only saw her when he picked up P.H. He never had any problems with J.D. She had been at his house numerous times. He did not work on Wednesdays so he saw the two girls when they came home for lunch. He saw her every Wednesday. He felt comfortable enough to ask to follow her on Instagram and then a follow-up request. He could not deny he asked her verbally to add him to her Instagram account. He testified it was his intention to use Instagram to get in touch with P.H. through J.D. He already had J.D.'s phone number.

[50] If the dogs needed to go to the bathroom at night he would get up and put a harness on one and take them out front door to do their business, bring this dog back and put the harness on the other dog and do the same thing. The pen is about 2.5 to 3 feet high. He could reach down and pick up one of the dogs to put a harness on them, rather than opening or unlatching the door to the pen. He was concerned about them running away. On this night S.H. said he unclasped the gate. He denied the pugs were brought downstairs by the girls. He agreed it made sense that the door to the stairs to the basement would be closed because of the sleepover. Prince does not like the dark but he followed his sister into the basement where it was dark.

[51] S.H. agreed he was working on May 26, 2018 and would have finished at 9 p.m. He got home by 10 p.m. Ms. H. was already in bed. He had a few beers when he got home. This is something he does every week. He has 4 beers every week and only had 4 tall boy beers on this night and the early morning of May 27. He agreed this was the equivalent of 6 beer bottles. He agreed the 4 tall boy cans of beers would affect his balance and coordination and he would not have driven his car.

[52] S.H. denied wearing a red shirt at work on May 26, 2018, or that night/early morning May 27. He would not have worn a red shirt. His Beer Store shirt is grey with black and he has black pants. He agreed in cross-examination he was helping out with the Leukemia bottle drive on May 26 at work. He agreed some of staff wear red Leukemia bottle drive shirts. Exhibit 13 is a photograph S.H. took of the employees working on May 26, 2018 and everyone was wearing a red shirt except one person, who was in the back row. The store advertised this event, Exhibits 11 and 12. He agreed he was working inside the store that day but he did not wear a red shirt. Employees are provided with a red Leukemia shirt. He said his daughter, A.H. was wearing his red shirt and she was in the photograph.

[53] S.H. denied going into the basement at 3:00 a.m. on May 27, 2018. The dogs went down into the basement at 2:30 a.m. He must have told the police 1:30 a.m., if it is in his statement. He was not keeping track of time. He testified 2:30 is close to 3 a.m. He testified it was not later than 2:45 a.m. when the dogs got out and went down into basement. He generally went to sleep between 3 and 3:30 a.m. He generally watched TV and then fell asleep.

[54] When he went to get dogs he probably said to the girls he was getting the dogs back upstairs or said hello to them. He had no specific recollection of any conversation. He did not run after the dogs. He told police he ran after the dogs. He agreed saying it took 2-3 minutes to get down the stairs is very different from saying he ran down to get the dogs. In his police statement he said he "lay down on the mattress." He agreed he told the police he lay on the mattress to get the dog but he did not lay on the mattress and touch J.D. S.H. agreed he did not tell the police he went back in basement to get a second dog and only told the police in his statement he retrieved one dog and brought it back upstairs.

[55] S.H.'s version changed again as to how the dogs got downstairs and he now said he was taking them outside and one of them went downstairs. He agreed he said in his statement only one dog went down into the basement and he went downstairs to get that dog. He told police the dog jumped on the bed and woke up J.D. The officer asked if he went down again after he got the one dog and S.H. said no, he did not believe so. He told police he did not go down before the dog went down as he was on the computer. Although he did not tell the police this, S.H. maintained during cross-examination that he did go into the basement a second time to get Prince, who was on J.D.'s mattress. His explanation for the discrepancy was it was upsetting to be arrested and his brain was not focused on what he should be saying. He agreed he only told police one dog went into basement. He disagreed the dogs were in basement because the girls got them.

[56] He testified in the morning he called down to girls from top of stairs to wake up but he did not go down. He agreed he told J.D. to give him a hug the next morning. He did not kiss her head, he put his chin on her head.

[57] In re-examination he testified he consumed the 4 tall boys over 3 hours.

Evidence of A.G.

[58] She is the manager at the […] Street Beer Store. She had known S.H. for three (3) years. He helps her, puts beer away, runs a till and does paperwork. He is a full-time employee. He is not an assistant manager. S.H. did have issues with his ankle and right shoulder. He broke his ankle previously and sometimes he walked with a limp but not always. He expressed discomfort on occasion. He could lift a case of beer. He was a stock person. Everyone got a red shirt for the Leukemia Bottle Drive. Most likely he was wearing a red shirt. S.H. was good about wearing the red Leukemia shirt and she expected he wore his. The same red shirt was given in previous years for the Leukemia Bottle Drive. The Beer Store shirt is black now and was black and grey in May 2018.

[59] In cross-examination A.G. indicated the Beer Store did not have assistant managers. The Leukemia Drive was an annual event, one of the biggest. The employees wore a red shirt leading up to it. On the Saturday, May 26, everyone was expected to wear a red shirt.

[60] The beer cases are stacked 7 cases high. There is a lot of twisting motion in S.H.'s job. There is a lot of reaching across to put bottles in bins.

Evidence of Ms. H.

[61] Ms. H. is married to S.H. She works as an instructor at […] and she ran a consulting business. Her husband broke his ankle falling down some stairs and had surgery where a plate and screws were put in his ankle. She testified she did not know if S.H. limps when he walks. Stairs were hard for him. He looked uncomfortable going down or up. He also had a muscle or soft tissue injury from work on his shoulder. He was in pain and did physical labour with his work every day. When walking on stairs he did not do one foot then one foot.

[62] Their house was a townhouse and was narrow. There are three bedrooms on the second level. The basement was partially finished. She slept in the master bedroom and S.H. slept on a couch in the living room as he had to take the dogs out at night. S.H. was a night hawk and watched TV until late. Ms. H. slept with her bedroom door open and she was a light sleeper. She would go to bed between 9 and 10 p.m.

[63] The dogs are in a pen or enclosure in the kitchen, Exhibit 9 is a photograph showing the crate and pen, which was in the kitchen where the dogs were kept. Scarlett was a very excitable dog and Prince was more relaxed. At night the dogs would sleep in their crate but there was a fenced-in pen that was attached by clasps to the crate. Exhibit 14 is an example of the type of metal clasp attaching the pen to the crate. You would have to unpin the clasp to open [the pen]. She testified her husband would take the dogs outside through the sliding door in the basement at night. However, she said the door to the basement would be closed when P.H. was having a sleepover, as they were downstairs. If the dogs were going out front they would be leashed.

[64] At 4:20 a.m., on May 27, 2018, she was awakened by the sound of laughing and giggling. She heard the dogs downstairs and then heard them come back up. She wondered, "why were the dogs out" [of their pen]. She heard the girls on the main floor with the dogs in the kitchen. She came downstairs and spoke to her husband, only her husband was in the kitchen. She had heard the girls in the kitchen before she went downstairs to the kitchen and she also heard laughter in the basement. She did not hear S.H. that night. She heard the dogs downstairs and then heard they were back [on main floor]. She asked S.H. what the girls were still doing up. When she came downstairs S.H. was in the kitchen and the dogs were in the pen. She was not awakened between 2:15 and 3:00 a.m. She texted P.H. at 4:24 a.m. and said its time to go to sleep now and P.H. texted back "We're watching TV and Daddy said its okay."

[65] She did not have any knowledge of S.H.'s interest in J.D.'s social media. She did not hear anything about S.H. wanting to follow J.D. on her Instagram. P.H. had a cell phone. If Ms. H. wanted to get hold of P.H. and she was not answering her phone, Ms. H. testified she would call P.H.'s friend's parents. She would text or call P.H. if she wanted to get hold of her. She did not know S.H. had J.D.'s cell phone number. She did not believe S.H. would give P.H. the "finger." There are 12 to 13 steps going to the basement. It takes S.H. about 2 minutes to walk down the stairs. The stairs are noisy and she could hear them in her room at night. She heard the dogs downstairs and later heard the girls come up with the dogs to the kitchen. She had a volunteer commitment with A.H. and her friend on Sunday.

[66] In cross-examination Ms. H. testified she slept from 9:00 p.m. to 4:20 a.m., when she woke up from hearing the girls with the dogs. If there was a sleepover the basement door would be closed as the girls wanted privacy and it cut down on the noise. The dogs could not get out of their enclosure unless it was opened. The crate was always open so they could get out to get a drink of water or run around in the octagon enclosure. They had to be let out to go to the bathroom. The only way the dogs would get downstairs was if the basement door was open or if someone brought them down. P.H. and J.D. spent lot of time with dogs. It would not be unusual for them to want to play with dogs at night.

[67] S.H. broke his ankle and he has an inflexible walk. Some days were better than others, if he was working a lot then it would be noticeable. It was not like he would appear to be stumbling or falling over or leaning forward. S.H. can reach across his body with his arm and hand. He could give her a hug by wrapping his arms around her.

[68] S.H. did not work on Wednesday so he saw P.H. and J.D. at lunch. He would also pick up P.H. from J.D.'s house.

[69] She heard laughing and giggling at 4:20 a.m. from the girls. She heard the dogs were out of their enclosure and thought "Why are the pugs out?" She heard the girls on the main floor. When she went downstairs S.H. was not sleeping, he was the only one on the main level. She went downstairs and asked her husband S.H. why the pugs were out and what the girls were still doing up. S.H. told her the pugs had to go to the bathroom. She went back upstairs and sent a text to P.H. at 4:24 p.m., which said its time to go to sleep now and she texted back "We're watching TV and Daddy said its okay." In cross-examination Ms. H. testified she did not know who let the dogs out but they were back in their enclosure when she went downstairs and spoke to S.H. She did not know what happened with the pugs before that or what happened with them in the basement.

[70] In re-examination Ms. H. said she always had P.H.'s friend's parents phone numbers.

Evidence of P.H.

[71] P.H. testified she and J.D. were best friends. She had two sleepovers, which were for her 11th and 12th birthdays. J.D. came to both. In 2018, the sleepover was for two nights and only J.D. came over. Exhibit 6 is an accurate depiction of the basement. She slept on the couch and J.D. slept on the mattress on the floor. It was a tight fit for the couch and mattress. J.D. had no problems with her dad. Her mom had a good relationship with J.D. Her dad did not have much contact with J.D.

[72] The dogs were kept in a pen in the kitchen. The dogs always go out before they go to bed. J.D. came to P.H.'s every day for lunch as they took the dogs out for a walk. They put a harness on each of them to do this.

[73] P.H. testified she went to asleep around 12:30 a.m. and did not remember anything until she received a text message from her mother around 4:20 a.m. Her mom made up the bed on the mattress. She did not recall J.D. bringing a sleeping bag. She did not remember receiving any texts messages from J.D. during the night. Her Instagram account is […]. She did not recall the messages now.

[74] It was completely dark in the basement. There was a night light in the bathroom but the door was closed.

[75] P.H. confirmed her father had broken his ankle 7-8 years before and it was difficult for him to go down the stairs. He did not make it a habit of going down stairs. He also had a problem with his right shoulder.

[76] She did not remember anything happening with the dogs that night or early morning. She did not remember Scarlett or Prince coming downstairs. She never asked her dad if Scarlett and Prince could come downstairs. She never said her dad did not want the dogs downstairs. She and J.D. did not go upstairs with the dogs.

[77] She did not get a text from J.D. in the middle of the night that someone was beside her. Her father did not give her the finger that night.

[78] If her dad went up and down stairs 5 or 6 times she would hear him because the stairs are old and creaky. She never saw her father lying on the mattress.

[79] She was texted by her mother but she did not know the time.

[80] She could see in the basement once her eyes adjusted to the darkness. She could have been in and out of sleep between 3 and 6 a.m. She did not remember texting J.D. she could not sleep but obviously she did.

[81] She did not know what her dad was wearing on that night. She never heard her dad tell J.D. to change her clothes. She did not know if J.D. went to the bathroom during the night. She never heard her father telling J.D. to get off the floor and back on the mattress.

[82] In cross-examination P.H. said she did not remember Scarlett or Prince coming downstairs. She did not remember the dog jumping on her. She did not recall her dad being in the basement and she was sure of that. The dogs did not come at all. Her dad never came down into basement when she and J.D. were there. She was sleeping for most of the night.

[83] She did not remember the messages sent by J.D. to her. She first saw the message "There's someone on the bed beside me!!!!!" when she was talking to Mr. Scott in his office. P.H. testified she never received the messages above the photo she sent. She agreed they show up in a phone conversation. Exhibit 2 were messages J.D. sent to her phone.

[84] J.D. was her best friend in May 2018 and they spent a lot of time together. They never had a fight during this time. They went to her home everyday for lunch but did not go on Wednesday because they helped in the office. She had a cell phone since age 12. She was on her phone and social media a lot. If parents wanted to get hold of me they would phone me or text her. They did not send her a DM (direct message) on Instagram. She and J.D. sent messages to each other on Instagram.

[85] If somebody was in the basement possibly J.D. could have sent a message. It does not make sense to send a text if nobody was there, as they could just talk to each other. She had her sleepover in the basement because there was more room.

[86] P.H. remembered her mother sending her a text message around 4:20 a.m., about them getting to sleep. She did not remember saying to her mom in reply that her dad had said they could watch TV. Her mom did not send any message to her between 12:30 and 4:20 a.m. Apparently J.D. sent messages earlier to her but she did not remember them.

[87] P.H. testified her mom made up the mattress, J.D. could have brought a sleeping bag to the sleepover, she did not remember. She fell asleep around 12:30 a.m. She could have been in and out of sleep.

[88] She did not remember being on the main floor. She did not remember the dogs being downstairs. She did not remember her dad being downstairs. She did not remember saying to her dad she wanted the dogs to come downstairs. She did not remember asking her father to bring the dogs downstairs. She did not remember anything that happened between 12:30 and 4:20 a.m. She could not say things did or did not happen because she had no memory. She did not remember anything J.D. said that night. She could not say things did not happen because she does not remember anything between those hours. She did not remember if her dad woke them up and took them to McDonald's. She did not remember how J.D. was acting when they first woke up.

[89] P.H. testified in re-examination she thought they shut the basement door.

Did Some of the Text Messages Qualify as a Res Gestae Exception to the Rule Against Hearsay Evidence?

[90] The defence took no issue with the introduction of the text messages sent between the complainant, J.D. to P.H. or the text messages between the complainant, J.D. and Lauren. The issue of authentication of the digital evidence was not raised by the defence as an issue to be determined. It was accepted by the defence that the electronic documents, the text messages, were what they purported to be. J.D. identified the text message screen shots as coming from her cell phone, showing the text messages set out above in the Evidence of J.D.

[91] It was the Crown's position the texts sent by J.D. to P.H. between 2:59 and 3:01 a.m., Exhibit 1, should be found to be res gestae, as an exception to the rule against hearsay, on the basis of J.D.'s evidence that she sent these texts when S.H. was lying behind her on the mattress and was rubbing and touching her hip and butt. The Crown submitted "a statement relating to a startling event or condition…may be admitted to prove the truth of its contents if it is made while the declarant is under the stress or excitement caused by the event or condition.": David M. Paciocco & Lee Struesser, The Law of Evidence, 7th ed. (Toronto, Irwin Law, 2015), at p. 191 and cited with approval in R. v. Mullin, 2019 ONCA 890, at para. 41. In R. v. Khan, (1988), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff'd , [1990] 2 S.C.R. 531, the Ontario Court of Appeal held: "[t]he stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent." (See also R. v. Nurse, 2019 ONCA 260, [2019] O.J. No. 1636 (C.A.), at paras. 77-82.) As the Crown submitted these texts were a "brief live accounting," as on the evidence of J.D., the touching was happening at the time the texts were sent.

[92] Mr. Scott conceded in his submissions in reply that the four texts sent by J.D. to P.H. between 2:59 and 3:01 a.m. met the threshold admissibility of a spontaneous utterance based on J.D.'s evidence the texts were sent shortly after she was awakened by the presence of someone on the bed beside her and on her evidence, this person was rubbing her butt and hip. She testified she was scared and did not know what this individual, she later realized was S.H., P.H.'s father, would do if she cried out, so she texted her friend. The content of the texts evidenced the stress and fear of 12 year old J.D. I agree with Mr. Scott's concession. If the defence had argued against the admissibility of these four texts as being part of the res gestae, I would have found them to be a spontaneous declaration or utterance, albeit in an electronic document. Certainly, the stress of the event was ongoing at the time the texts were sent such that the possibility of concoction or deception could be safely discounted. The hearsay dangers were also significantly reduced as J.D. was in the witness box and she was able to be cross-examined as to the circumstances surrounding the making of the texts.

[93] The Crown also sought to have the two texts J.D. sent to Lauren admitted as an exception to the rule against hearsay because they also were excited or spontaneous utterances. J.D. testified S.H. lay beside her on the mattress for a significant period of time, she estimated it was between an hour and an hour and a half. Throughout this period of time he was continually touching and rubbing her butt, her hip, her breast area and the area of her vagina over her clothes. At some point J.D. said S.H. tried to go under her clothes in the area of her hip but she got off the mattress and went to the bathroom where she texted her friend, Lauren. It was the Crown's submission that the two texts to Lauren at 3:52 and 4:14 a.m., in Exhibit 4a, were written and sent shortly after the incident had been occurring, at a time J.D. would have had no time to contrive or misrepresent. The words in the texts again conveyed J.D.'s upset and fear and evidenced her state of mind at that time. The timing of the texts also provided context as to when the events described by J.D. occurred. The Crown argued the cases referred to above supported a finding the texts were excited or spontaneous utterances and part of the res gestae. In David Paciocco's article, "Proof and Progress: Coping with the Law of Evidence in a Technological Age," (2013) 11:2 CJLT 181, at p. 215, he stated the res gestae exception applies to three specific types of hearsay statements that represent a material part of a story or event: (1) statements of present mental state; (2) statements of present physical condition; and (3) excited utterances. These statements often arise in the context of text communications.

[94] Mr. Scott again conceded these two texts sent by J.D. to Lauren were admissible as part of the res gestae and therefore were admissible for the truth of the contents. I agree with Mr. Scott's concession and even if he had not conceded their admissibility, as an exception to the rule against hearsay, I would have so found for the previously noted reasons.

[95] The Crown submitted the remaining texts between J.D. and P.H., Exhibit 2, were admissible to show context and timing of when J.D. and P.H. were texting each other, this was part of the narrative. The further texts between J.D. and Lauren, Exhibit 4b, 4c and 4d were also admissible to show how the complaint came to light, which is something for the court to consider as part of the narrative. The defence did not take any position respecting these later texts. The Crown relies on R. v. Khan, 2017 ONCA 114, [2017] O.J. No. 745 (C.A.), for the admissibility of these further texts as prior consistent statements as narrative and circumstantial evidence as discussed by Justice Paciocco in "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181, at p. 182. The Crown argued that "sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a "more substantive use" R. v. Khan, [2017] O.J. No. 745, at para. 31 (see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 39, R. v. Evans, [1993] 2 S.C.R. 629, at para. 32). In R. v. G.C., [2006] O.J. No. 2245(C.A.), at para. 22, Rouleau J.A. identified the limited way prior consistent statements can be used to assist the trier of fact in assessing the cogency, and therefore the reliability and credibility, of a witness:

In cases involving sexual assault of young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness.

[96] In the 2017 Khan decision, Hourigan J.A. held while Justice Rouleau was discussing the use of prior consistent statements to assess credibility and reliability of young children, there was no reason for the principle to be so restricted and in the appropriate case prior consistent statements could be used in the assessment of truthfulness or reliability of the witness, whatever their age.

[97] The Crown submitted the other texts messages between J.D. and P.H. and the text messages between J.D. and Lauren can be used for the "purpose of evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint, and the spontaneous nature in which it came out, in order to assist in assessing the truthfulness of the complainant's in-court testimony," (R. v. Khan, supra, at para. 43.). The Crown submitted the texts cannot be used to show consistency with J.D.'s in-court testimony, rather, they can be used in the assessment of J.D.'s credibility and reliability from the context of her initial complaint, the timing of the complaint and her emotional state at the time of the sending the texts. I agree.

Analysis

Assessment of S.H.'s Credibility and Reliability

[98] I do not accept the evidence of S.H. respecting the reason he was in the basement where his daughter, P.H. and her friend, J.D., were having a sleepover. It is my view his explanation is unbelievable, implausible and incredible and is internally inconsistent and does not accord with the totality of the evidence, as it is inconsistent with the evidence of the other three defence witnesses on significant issues, as I will discuss.

[99] His explanation for being in the basement was because the two dogs, Scarlett and Prince, escaped from their enclosure and ran into the basement. He had to go down into the dark basement to retrieve the dogs and put them back into their enclosure and crate. It was his evidence that the dogs got out of their pen between 2:30 to 2:45 a.m., and it was not any later. He testified he was sure of the time, although he also testified he was not keeping track of the time. He testified it took him at least two minutes to walk down the steps into the basement because of his prior injury to his ankle, which made it very difficult for him to go up and down stairs. It was his evidence the basement door was open and this was why the dogs ran into the basement. He testified the steps made a lot of noise, which was confirmed by his wife and his daughter, P.H., because the stairs were old and creaky. S.H. testified he also grunted because of his difficulty going down the stairs. He did not recall if he spoke to the girls as he was coming down the stairs. He did not recall if the girls woke up when he retrieved the dogs from the basement. He did not turn on the basement lights to better assist him in retrieving the dogs, which I find to be implausible given his prior injury.

[100] S.H. admitted to being in the basement where his daughter, P.H. and her friend, J.D., were sleeping, in the early morning hours. He was not saying he never touched J.D., rather S.H.'s position was the only time he may have touched J.D. on the mattress was when he was bending over to pick up one of the dogs, Prince, which was only a momentary touching, lasting no more than a few seconds. The defence was basically saying J.D. was mistaken in what she thought happened in that darkened basement because although S.H. came into contact with her, it was only momentary. The Crown submitted S.H.'s version is completely implausible and incredible as an explanation for J.D.'s complaint. Although defence counsel did not in his submissions allege J.D. completely made up her allegations against S.H., that is, in fact, what his position had to be, because a momentary touching in the dark would not equate or compare with someone lying beside a 12 year old girl and rubbing and touching that girl in the areas of her butt, breasts and vagina over the clothes for an extended period of time – for as long as an hour.

[101] There are a number of reasons why I do not accept S.H.'s evidence as it relates to his explanation for going into the basement. S.H.'s evidence was internally inconsistent at times – within his own testimony in chief and cross and between his courtroom testimony and his police statement, as well as being materially contradicted and externally inconsistent in a number of significant areas with the evidence of his wife and his daughter.

1. Basement Door

Ms. H. testified the basement door would have been closed the night the girls had the sleepover. P.H. testified the basement door was closed. S.H. testified the basement door was usually closed but on this occasion it was open. It is my view the basement door would have been closed on this early morning on May 27, 2018, because P.H. was having a sleepover with J.D. and they would want privacy and would not want to wake up the rest of those in the house if they were staying up later. S.H. agreed with this suggestion in cross-examination. Also, S.H. testified he did not like to go down the stairs because it was so difficult for him, which confirmed his evidence that the usual practice in the household was for the basement door to be closed, as both Ms. H. and S.H. testified the dogs usually ran upstairs when they got out of their enclosure unless the basement door was open and they would run downstairs. It is my view this is a significant inconsistency because for the dogs to be able to run into the basement, the basement door had to be open.

2. Dog Enclosure

Ms. H. testified the dogs cannot get out of the octagon enclosure or pen when it is attached by the clasps. Mr. Scott filed a photograph of a clasp from a purse to show the type of clasp used to fasten the enclosure to the crate, Exhibit 14. This cast serious doubt on S.H.'s explanation that the dogs got out of the enclosure by one of the dogs "pushing" their way out. This would not have been possible based on Ms. H.'s evidence.

3. Multiple Explanations for How Dogs Escaped

S.H. provided three different explanations in his evidence for how the dogs got out of the enclosure: First, S.H. testified Scarlett ran into the basement, followed by Prince, when he unlatched the pen. Yet S.H. testified in cross-examination that when he took the dogs outside to go to the bathroom he would bend over the metal fence of the enclosure (2.5 to 3 feet high) and he would only pick up one of the dogs at a time. He then put their harness on to take them out the front door for a walk. He put that dog back into the pen and did the same with the second dog. This was also inconsistent with his evidence that he did not usually unlatch the pen because he is concerned about them running away. Second, he testified one of the dogs pushed their way out, which according to Ms. H. cannot happen when enclosure is attached to the crate by the clasps. Third, in cross-examination he said he was taking both of the dogs outside and one of them went downstairs, which was inconsistent with his earlier evidence of taking each dog outside one at a time.

4. Number of Dogs in Basement

A further inconsistency was between his police statement and his evidence in chief as to how many of the dogs went into the basement. In chief he said both dogs went into the basement because they either pushed out of the enclosure or when he unlatched it they ran down into the basement or he was taking both dogs outside to go to the bathroom. In his police statement he agreed he only told Detective Ahee one of the dogs ran into the basement and he went down to retrieve it. S.H. told the police in his statement this one dog jumped on the mattress and woke up J.D. In his police statement the officer asked if he went back down in the basement after retrieving the one dog and S.H. said no.

5. Darkness and Implausibility

All of the witnesses said it was dark in the basement and difficult to see. There were no lights on. P.H. said it was completely dark. S.H. described walking down the stairs as being very difficult. He was proceeding, on his evidence, from a lit room, the kitchen, to a darkened stairwell and even darker area where the couch and mattress were located. It is my view S.H.'s description of immediately finding Scarlett on the couch by P.H. is highly implausible in the dark. Further, he did not describe the girls waking up despite the noise, on his evidence, he had to be making. The logical, common sense thing to do, if the dogs did run into the basement, would be to turn the lights on, announce why he was coming downstairs and ask for the girls' assistance in retrieving the dogs. He did none of those things. Further, P.H. testified she did not remember the dogs running into the basement and her father having to retrieve them in the dark, which would have been quite the loud commotion on S.H.'s evidence. He described Scarlett being on the couch where P.H. was sleeping. Again, I find his explanation to be implausible and frankly, unbelievable and I do not believe him.

6. Inconsistent Descriptions of Retrieving Prince

S.H. described inching between the mattress and the couch and then kneeling with his right knee on the mattress to retrieve Prince. Yet in his police statement he told the police he lay down on the mattress beside J.D. to get Prince and then brought him back upstairs. These two descriptions are very different and in my view are inconsistent as S.H. when confronted by this discrepancy testified he never lay down on the mattress, yet just a week after the sleepover he told the police he did lay down on the mattress.

7. Wife's Evidence Contradicts Husband's Account

Ms. H. testified she was a light sleeper and she slept with the master bedroom door open. She could hear if there was noise coming from the main floor or from the basement. She agreed if the basement door was closed it would muffle any noise the girls might be making. She went to bed at 9 p.m. and did not hear anything until she was awakened at around 4:20 a.m. when she heard the girls with the dogs on the main floor in the kitchen. The dogs were out of their enclosure and she wondered "Why were the pugs out?" When she went downstairs the dogs were back in their pen. The girls were back in the basement watching TV. Only S.H. was in the kitchen. She asked him why the dogs were out and he said they had to go outside to go to the bathroom. Ms. H. went back to bed and texted P.H. at 4:24 a.m. and said it was time for them to go to sleep and P.H. texted her back and said, "We're watching TV and Daddy said it was okay." Ms. H. did not know who let the dogs out before she went downstairs. Ms. H. did not hear anything around 2:30 to 2:45 a.m. and was not awakened by the commotion S.H. described he was creating retrieving the two dogs. P.H. did not even remember the dogs being down in the basement. She did not remember if she asked her father if the dogs could come downstairs. She did not remember being up on the main floor with J.D. and the dogs. She did not remember her father coming down into the basement to retrieve the two dogs because they had run downstairs. The evidence of Ms. H. is completely inconsistent with S.H.'s evidence. He testified the girls were never up in the kitchen, yet Ms. H. heard them in the kitchen with the dogs. Her husband never told her the dogs had escaped the pen or pushed their way out of the pen or when he unlatched the pen the two dogs ran into the basement and he had to go downstairs to retrieve them. Instead he told his wife he had to take the dogs outside to go to the bathroom. S.H. in his evidence never said he took the dogs outside at anytime to go to the bathroom. In my view these are significant inconsistencies, which demonstrate that S.H. did not go downstairs to retrieve the dogs as a result of them getting out of the pen and running down into the basement.

[102] On S.H.'s own evidence, he was in the basement with the girls during the early morning hours of May 27 and therefore he had an opportunity to engage in the conduct described by J.D. This was not a situation where S.H.'s position was he was never in the basement of the home. It is a telling and noteworthy omission on S.H.'s part that when his wife came downstairs around 4:20 a.m. and asked him why the two dogs were out he did not tell her they had escaped from the pen or enclosure and run downstairs where the girls were, instead he told her he had to take the dogs outside to go to the bathroom.

[103] S.H.'s admission he sent 12 year old J.D. a friend request to add him to her Instagram account so he could follow her and that he sent a second request when she did not respond and then testified he could not deny he asked her verbally to add him, in my view can only be described as unusual and somewhat peculiar. J.D. testified she viewed this request as "weird" and it made her uncomfortable because none of her other friend's parents had asked to join her Instagram account. Further, when S.H. was pressed on why he made these requests, he maintained it was so he could get a message to his daughter P.H. because it was difficult to get her on her cell phone because she was always using it. Ms. H. testified she would never try to get hold of P.H. by contacting J.D. through her Instagram account. In fact, she testified she would not be asking for access to P.H.'s friends' social media platforms. She called or texted P.H. on her phone to get in touch with her. She had obtained P.H.'s friends' parents' phone numbers and would call them if P.H. was not answering her phone. Ms. H. did not know S.H. had tried to join J.D.'s Instagram and did not know S.H. had J.D.'s cell phone number. S.H. finally agreed, after some time in cross-examination, that he had no need to get on J.D.'s Instagram account. It is my view S.H.'s request to follow a 12 year old girl's Instagram account is troubling and inappropriate, particularly where S.H.'s position was he did not know J.D. very well, and further, I found his answers to the Crown's questions on this issue were both evasive and argumentative.

[104] Also concerning was S.H. giving J.D. a hug after she and P.H. came upstairs the next morning. J.D. testified S.H. told her to come and give him a hug and when she complied he kissed on the top of her head. Initially S.H. testified he did not ask J.D. to give him a hug, rather, he would have hugged her but he did not kiss her on her head. He conceded maybe his chin came in contact with the top of her head when he hugged her. S.H.'s version changed in cross where he finally agreed he told her to give him a hug but did not kiss her, as he put his chin on her head when he hugged her. Again, in my view it is inappropriate for a 47 year old man to tell a 12 year old friend of his daughter to give him a hug. Once again his evidence changed from that in chief to that in cross on an issue involving, what I would describe from the totality of the evidence as an unusual and/or troubling interest in his daughter's 12 year old friend.

[105] He was also evasive on how often he would actually see J.D. with P.H. In chief he testified he picked P.H. up a couple of times from J.D.'s house and he really did not have a relationship with her. Yet in cross-examination he conceded he saw J.D. once a week on Wednesdays when he did not work and the two girls were at his house over lunch. Further, he conceded J.D. was over at his house with P.H. most days after school and he saw her then on numerous occasions during the school year. He described the two girls as best friends. Again, his answers were evasive. S.H. was often not being forthright in his answers and his answers would change.

[106] S.H. on a number of occasions during his testimony exaggerated or embellished his evidence. Most notably he did this when describing the impact his two injuries (ankle and shoulder) had on his ability to go up and down stairs or reach across or lift items above his head. S.H. described an accident where he fell down some stairs and broke his ankle, had surgery where a plate and some screws were put in. This caused him continued difficulty walking, standing and going up and down stairs. S.H. had a significantly pronounced limp as he walked across the courtroom before getting into the witness box. His counsel drew attention to the difficulty he had in walking. S.H. testified he always walked the way he walked in the courtroom. Yet his wife testified she did not know he had a limp when he walked and his manager indicated he sometimes limped but not always when he walked, it depended on what he was doing. Further, S.H. indicated he had great difficulty raising his arms and hands above his head, yet his job at the Beer Store required him to lift cases of beer (25 to 27 pounds) above his head regularly and also required him to constantly reach to his side to place empty bottles into crates and bins. Further, the Crown played the beginning of S.H.'s video-taped police statement where he walked into and across the interview room without any limp and sat in a chair. Mr. Scott argued the interview room was small, however, the pronounced limp evidenced by S.H. began from the moment he began to walk from his chair at counsel table to the witness box and he was walking normally on the video and would clearly have been walking from the sally port of the police station to the interview room, which would be a greater distance than from the counsel table to the witness box. It is my view S.H. exaggerated his limp as he walked in court. Further, he attempted to minimize his ability to reach across his body to support his position he could not even do what J.D. alleged he was doing as he lay beside her on the mattress. In my view his exaggerations, embellishments and attempts to minimize his abilities adversely affected both his credibility and reliability.

[107] The most serious exaggeration was his evidence at the beginning of his cross-examination that he was an Assistant Manager at the Beer Store for 8 years, yet his Manager testified the Beer Store did not have any Assistant Managers and S.H. was only a full-time employee, as opposed to a contract employee. Giving himself this job description was a deliberate lie in my view. Further, S.H. used this job title and description to support his evidence he mostly did paperwork in his job. This in turn supported his evidence of his great difficulty going up and down stairs and reaching for items. If the Manager had not testified I would have likely accepted his evidence that he was an Assistant Manager for 8 years, which was completely untrue.

[108] A further area where I believe S.H. was not telling the truth was whether he was wearing a red shirt on May 26 into the early hours of May 27 when the allegations arose. He was adamant he was not wearing a red shirt when he testified in chief, yet when he was shown the photograph he posted on his Facebook page, Exhibit 13, showing all of the employees wearing red shirts, with the exception of one employee who was not even wearing a Beer Store grey and black shirt, because it was Leukemia Bottle Drive, May 26, 2018, see Exhibit 12 for advertisement, he admitted it was a major fund raiser for the Beer Store and the employees were to wear red shirts with Leukemia Bottle Drive logo, in addition to the Beer Store logo. S.H. maintained he was not wearing a red shirt because he gave his to his daughter A.H. who volunteered. A.G. testified she believed S.H. was wearing the red Leukemia Bottle Drive shirt as he was working in the store, she would have provided him with one and he would have had the previous years' red shirt. As she put it he was good at wearing the red shirt for Leukemia. It is significant that when J.D. was describing what S.H. was wearing on May 26-27, 2018, in her police statement on May 31, 2018, she said S.H. was wearing a red shirt because there was a big fund raiser going on with the Beer Store. In my view there would be no reason for J.D. to be aware of this fund raiser unless S.H. was wearing a red shirt and he told her about it or P.H. told her about it. In 2018, the Beer Store raised $1.7 million, which demonstrated how important this event was for the Beer Store. Although this was not a major issue in this trial, it did demonstrate, in my view, the lengths to which S.H. was prepared to go to attempt to demonstrate J.D.'s recollection of things was poor. Based on the totality of the evidence on this issue I find S.H. was wearing a red shirt on May 26 and into May 27 when J.D. alleged he sexually assaulted her.

[109] As I have indicated, I do not accept S.H.'s evidence as to his explanation for being in the basement when his daughter and J.D. were asleep. For all of the reasons set out above, I reject his evidence and it does not in any way leave me with a reasonable doubt as to his guilt respecting the two charges he is facing. In my view his evidence is implausible and contrary to common sense and it was materially contradicted by the testimony of his wife and his daughter, P.H.

Assessment of Whether Crown has Proven Charges Beyond a Reasonable Doubt on Evidence I Do Accept

[110] I must now go on to consider the evidence I do accept to determine whether the Crown has proven the essential elements of the two offences beyond a reasonable doubt. The Crown submitted J.D.'s evidence was both credible and reliable and should be accepted. As indicated above, it is permissible to compare and contrast J.D.'s evidence with the evidence of the other witnesses called during this trial and the exhibits filed, bearing in mind this must not devolve into a mere credibility contest between the defendant and the complainant.

[111] The Crown first addressed the defence submission that J.D. was biased towards S.H. because she thought he had an inappropriate interest in her. This relates to S.H.'s request for J.D. to add him to her Instagram account so he could follow her postings, which J.D. testified she thought was "weird." I have dealt with this request by S.H. earlier in my reasons. I do not believe that S.H.'s request concerning J.D.'s Instagram in any way negatively affects J.D.'s evidence or demonstrates she was out to get S.H. Ms. H. testified she would not be asking her daughter's friends to add her to their social media platforms to follow their postings or her daughter's whereabouts and activities. As I have already found, it is my view these requests by S.H. were unusual, somewhat peculiar and troubling. J.D.'s description of it, as being "weird" is apt and for a 12 year old child – a fitting and appropriate description. It is difficult to think of any legitimate reason for S.H., given all of the dynamics of the different ages of the persons involved and their relationships, to be making such a request. I can see how many 12 year old children and many adults might also describe his request as being "creepy." The question arises why would an adult want to follow his daughter's 12 year old best friend's Instagram postings? In my view this is not an appropriate way for a parent to try to contact their daughter when she is not answering her cell phone. Ms. H.'s evidence on this issue more readily accords with common sense – call the parents of your daughter's friends to see whether she is at their home.

[112] J.D. told the police in her statement about S.H.'s request to be added to her Instagram account. She said she kind of passed this off as normal because she did not know what to watch out for and although P.H.'s father always seemed kind of different around her compared to most of her friend's parents, he was always extra nice to her. She did not accept any of his requests to add her to her Instagram account. When she was questioned about this in cross-examination she testified she did not think it would be right for S.H. to keep tabs on P.H. by asking J.D. to friend him on her Instagram, although he never told her that was the reason when he asked her to add him on her Instagram account. As I discussed above when dealing with S.H.'s evidence, his request is both concerning and troubling as being inappropriate. I did not accept his explanation for making this request. It is my view J.D.'s evidence concerning this request accords with common sense and I do not accept Mr. Scott's submission that J.D.'s evidence on this issue reflects any bias by her towards S.H.

[113] When J.D. awoke the next morning, she testified S.H. was sitting on the mattress and told her to get up and come upstairs. J.D. testified after coming upstairs for breakfast on May 27, 2018, S.H. told her to give him a hug and when she did, he kissed on the top of her head. S.H. conceded he did hug both P.H. and J.D. after they came upstairs for breakfast but he testified he did not demand a hug. He did not think he kissed the top of J.D.'s head. In his evidence in chief he suggested when he hugged J.D. maybe his chin touched the top of her head. Yet, in cross-examination his evidence concerning his chin touching J.D.'s head changed and he testified he might have actually put his chin on her head.

[114] It is my view J.D.'s evidence concerning S.H.'s inappropriate interest in her was not fabricated by J.D., given S.H. conceded he requested J.D. add him to her Instagram and that he did give her a hug the next morning and then provided two possible explanations for why J.D. might believe he kissed her on top of her head. I find, based on J.D.'s evidence and S.H.'s own admissions that he had an interest in J.D., which in my view raises red flags and can be considered when I examine the totality of the evidence in assessing whether the Crown has proven the charges beyond a reasonable doubt.

[115] There was no evidence led during this trial of anything – no incident or anything said by S.H. to J.D. or vice versa – which would show there were negative issues or animosity between S.H. or anyone in his family and J.D. J.D. and P.H. were best friends for more than a year, and were described by Ms. H. as inseparable, always at each other's homes, spending lunch at P.H.'s house every day to walk the dogs. As pointed out by the Crown, J.D.'s disclosure to her parents and ultimately the police led directly to the end of her friendship with P.H., after her father was charged. The Crown pointed to the fact there was no motive to lie on J.D.'s part concerning her allegations. This, according to the Crown, becomes merely another factor to consider in assessing J.D.'s evidence. I agree with this submission. In R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210 (C.A.), at paras. 107-108, Cronk J.A. held that, "…the absence of an established motive to fabricate was merely one factor that [the trial judge] considered when assessing each complainant's credibility."

[116] The defence argued that the next day and a number of days after the alleged sexual assault J.D. was behaving as she normally did. The defence filed a number of text messages between P.H. and J.D. in the first few days of June 2018, to support this submission. First, the significance of a complainant's failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse. Those stereotypical assumptions have been rejected in numerous Supreme Court of Canada and Ontario Court of Appeal decisions as well as is reflected in Parliament's decision to abrogate the rules respecting recent complaint (see Section 275 Criminal Code of Canada; R. v. W. (R.), [1992] 2 S.C.R. 122, per McLachlin J. (as she then was) at p. 136; R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.) and R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 63-65). There is "no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant" (R. v. D.D., supra, at para. 65). However, in this case, as I will discuss in greater detail later, J.D. was texting P.H., while she was being touched, as well as her friend Lauren, texting both during the time period she was being touched and afterwards when Lauren was questioning her about what happened and J.D. indicated she needed to talk to someone she trusted but not in a text. J.D. arranged to meet Lauren later the same day the touching occurred, she met with her in a park at 4:30 p.m., and told her she was going to speak to her parents first, which she did later that same night. On May 28, 2018, she went with her parents and spoke to a police officer and arranged a formal video-taped interview with Detective Ahee, so, in my view, there was no delay in the reporting of the sexual abuse in this case.

[117] J.D. decided not to tell P.H. what P.H.'s father had done to J.D. during the sleepover. It is difficult to draw any adverse conclusions from the texts between P.H. and J.D., Exhibit 8, prior to the police charging S.H., particularly given J.D.'s age.

[118] The defence also submitted I should consider the fact nothing inappropriate happened during the sleepover on the Friday night, May 25, 2018, and nothing happened the previous year. Mr. Scott brought out that S.H. had a number of nieces who had stayed at the Harrison house and there had never been any complaints by any of them about S.H. While all of these suggestions may be true, I am unable to see how these facts could assist me in my assessment of the allegations raised by J.D. in respect of May 27, 2018 and her credibility.

[119] The Crown submitted I should accept the evidence of J.D., and he argued her evidence proved beyond a reasonable doubt that S.H. had sexually assaulted her and sexually interfered with her. I do accept the evidence of J.D. and I found her evidence to be compelling, credible and reliable for the following reasons.

[120] First, J.D. provided a detailed account of what she described to be a very traumatic event, where she was afraid and terrified as to what S.H. might do if she cried out. Mr. Guertin, for the Crown, submitted I must access her evidence from the point of view of a child, 12 years old. This was agreed to by Mr. Scott for the defence. Her video statement was given within days of the incident. It is important to note that just because J.D. is a child does not mean there is a lesser standard of proof for the Crown to prove S.H.'s guilt – it is the same proof beyond a reasonable doubt. Both counsel are agreed that a child witnesses' evidence must be accessed differently from that of an adult. In R. v. B. (G.), [1990] S.C.J. No. 58 at para. 48, Wilson J. for the Court held:

[The trial judge was expressing a concern that] …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 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.

[121] This was further commented on by McLachlin J. (as she then was) in R. v. W.(R.), [1992] 2 S.C.R. 122, at para. 25, where she highlighted the importance of protecting the liberty of an accused and guarding against the injustice of convicting an innocent person. "What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a 'common sense' basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case."

[122] It is my view J.D. gave her evidence in a clear and concise manner. She did not become argumentative with counsel and was not evasive in her answers. It is my view she did not try to fill in the blanks, if she was not sure of something she admitted it, for example she testified she was unsure if P.H.'s mom had made the bed up for her but she knew she had brought a sleeping bag and opened it to use it as a blanket. She did not embellish or exaggerate her evidence, as I discussed above in my assessment of S.H.'s evidence. There were a number of occasions where J.D. corrected herself, for example, in her statement to the police she said she thought she slept on an air mattress but in her testimony in court she corrected herself and said it was a mattress from a bed that had been put on the floor. She was polite and thoughtful in answering the questions put to her by both counsel.

[123] It is my view J.D.'s evidence flowed logically and was in accordance with common sense. When J.D. described S.H.'s actions towards her touching and rubbing her over her clothes she told the police in her statement S.H. asked her why she was wearing jean shorts and not pajamas. She said he told her to change. At one point she said he tried to put his hand under her shorts and she got off the mattress and went into the bathroom. S.H. had the opportunity to commit the offences alleged, as his wife and older daughter with her friend were two floors away from the basement and his wife testified she slept from 9 p.m. to 4:20 a.m., when she was awakened by hearing the two girls with the dogs in the kitchen making noise. Ms. H. heard nothing prior to that despite being a light sleeper, who slept with her bedroom door open.

[124] J.D. testified she smelled alcohol on S.H.'s breath and he had been drinking by his own admission, four tall boy cans of beer. Whether he was intoxicated or impaired is really beside the point and in my view is not something I need to decide one way or the other. J.D.'s belief S.H. was stumbling going up the stairs was reasonable, even if S.H.'s unsteadiness was caused in part because of his prior injury, although, as I found above, it is my view S.H. deliberately embellished and exaggerated his difficulties in walking based on my observations of his walking into the police interview room and his manner of walking in the courtroom when he walked from the counsel table to the witness stand. In addition, there was the evidence of his wife, and his manager, who both testified they were not aware S.H. walked with a limp. A.G. testified if S.H. was on his feet for an extended period of time his walking became laboured but she was not aware of him walking usually with a limp, as he did in the courtroom. The Crown attempted to argue that because of S.H.'s alcohol consumption his inhibitions would be lower, however, the Crown did not lead any evidence from an expert concerning the impact of alcohol consumption to a person's intellectual abilities. S.H. admitted in his evidence that his consumption of alcohol would have affected his balance and motor skills. This evidence supported J.D.'s evidence she believed he was stumbling going up and down the basement stairs. S.H. conceded he would not have driven a car that evening because of his consumption of the beer.

[125] The text messages fit with the timing testified to by J.D. and are logical and accord with common sense. In my view they are corroborative of J.D.'s fear and her being unsure of what to do – her indecision on how she should react to what was happening to her. It is my view in the first texts she sent to P.H. between 2:59 and 3:01 a.m., her fear is apparent and palpable. Similarly, in her text to Lauren at 3:52 a.m., she expresses her upset by telling Lauren she was shaking uncontrollably on her mattress, crying because of something that happened and she needed to talk to someone she trusted. These texts were logical and accord with common sense in terms of the reactions of a 12 year old girl to the sexual touching she described. They also fit logically with her timeline of what she says occurred in the basement. Further, they clearly reflect her upset emotional state caused by what she testified S.H. was doing to her. As I have already indicated S.H.'s explanation for how he or one of the dogs touched or brushed against J.D. does not make sense and in my view does not provide any reasonable or credible explanation for the texts sent by J.D. to P.H. or to Lauren. Further, S.H.'s explanation for his touching of J.D. changed from what he told the police (laying down on the mattress to grab Prince) and what he testified to in court (kneeling with his right knee on the mattress to grab Prince). It is my view S.H.'s evidence does not provide a plausible theory or even a reasonable possibility inconsistent with guilt in terms of J.D.'s texts, which the defence conceded were res gestae statements admitted for the truth of their contents. It is my view these texts, which circumstantially provide corroboration of J.D.'s evidence of S.H. lying beside her and touching her are not, in light of logic and human experience, capable of supporting an inference other than guilt.

[126] There were little to no external inconsistencies in J.D.'s evidence, other than the evidence of S.H., which I have rejected. Although P.H. had no memory of her father being in the basement, either alone or with the two dogs, she testified in-chief her father never gave her the finger downstairs in the basement and she never said to J.D. she thought her dad was drunk. However, it was her evidence in cross-examination that she did not remember her father giving her the middle finger and therefore cannot say whether or not he did. In fact, P.H.'s evidence changed significantly in cross examination where she testified she could not recall anything that occurred in the basement after she fell asleep at 12:30 a.m. She agreed she must have been awake when she sent the email/text messages to J.D. at 3:23 and 3:54 a.m., based on Exhibit 3, although she had no memory of receiving texts from J.D. or of sending responses.

[127] The one area that P.H.'s evidence disagreed with J.D.'s evidence related to whether they went to P.H.'s house on Wednesdays to have lunch and take the dogs out, which was her father's day off. P.H. testified they helped out in the school office on Wednesdays, yet, S.H. testified he saw both P.H. and J.D. over lunch every week on Wednesdays, as he was off work and they came to the house for lunch and to take the dogs for a walk. Initially S.H. did not mention he saw J.D. with P.H. every Wednesday during lunch, however, he admitted in cross examination that he did see P.H. and J.D. every Wednesday, as they came to the house for lunch and to take the dogs out and Wednesday was his day off. There would be no reason for S.H. to admit this weekly contact with J.D. if it did not occur and it is my view this weekly contact occurred as J.D. testified. Ms. H. also testified that her husband would see the girls at their house on Wednesdays at lunch, as he did not work on that day. This raises some concern about P.H.'s credibility and reliability when considering the totality of the evidence on this issue.

[128] Finally, P.H. agreed it did not make sense for J.D. to be texting her unless there was someone in the basement, as they could simply talk to each other. She recalled her mom sending her a text about them going to sleep but did not recall when her mom sent it. She had no memory of what happened in the basement after 12:30 a.m., when she fell asleep. In cross-examination she testified she was not saying her dad was not in the basement, she was not saying she did not ask if the dogs could come into the basement during the sleepover – she cannot say these things did not happen – all she can say is she does not remember what happened between those hours. She did not remember how they were awakened the next morning or how J.D. was acting after they both got up. The reality is that P.H. remembered very little, if anything, as to what occurred after she fell asleep at 12:30 a.m.

[129] There were really no internal inconsistencies in J.D.'s evidence in my view. Mr. Scott submitted J.D.'s lack of awareness of who was on the mattress beside her did not make sense. She testified when she woke up there was a man beside her who was touching her. P.H. was only two feet away but she did not call out to her because P.H. was asleep and J.D. did not know what was going on or know what this person would do to her if she did call out. She was scared. She realized very quickly that it was P.H.'s father who was lying beside her and touching her inappropriately, which in my view would logically increase her fear of what he might do if she called out. I do not agree with Mr. Scott's submission on this issue.

[130] When Mr. Scott suggested to J.D. the dogs were downstairs at the same time she first became aware of a man being beside her on the mattress, J.D. disagreed and said the dogs were upstairs locked in their cage when the man beside her was touching her. This was because, on her evidence, the dogs were locked in their cage when she and P.H. went upstairs much later to get them and brought them downstairs into the basement. She was sure it was a human person beside her. It was not the dogs touching her, it was a man lying beside her on the mattress and he was touching her. When she was questioned further about the dogs, J.D. testified she knew they were upstairs because she and P.H. got them later, they were locked in their cage and they brought them downstairs. There was no touching of her by S.H. when they brought the dogs into the basement. J.D. explained as her eyes adjusted to the dark she realized and knew it was S.H. – this was within 30 to 60 seconds of her waking up.

[131] Mr. Scott focused on J.D. saying in her police statement S.H. "yelled" at her to get back on the mattress because he was mad at her for moving to the floor. The first time J.D. was questioned about her comment that S.H. yelled at her was in cross-examination and she responded that S.H. "raised his voice a little bit." J.D.'s statement that S.H. "yelled" at her was in relation to her getting back on the mattress when he was upset with her. She testified no one had asked her before what she meant when she said S.H. "yelled" at her. Mr. Scott submitted because nobody else heard S.H. yelling at J.D. this was something she either lied about or exaggerated. In my view this was not a major inconsistency or misstatement by J.D. and falls into one of the circumstances referred to by Wilson J. in R. v. B.(G.), when assessing the evidence of child witnesses.

[132] In terms of the limited areas of alleged inconsistency between J.D.'s police statement and her in-court testimony that were raised by the defence, it was my view, J.D.'s answers in cross-examination were completely consistent with her police statement filed pursuant to s. 715.1 (see R. v. L.O., 2015 ONCA 394, [2015] O.J. No. 2956(C.A.), at paras. 34-36). Of course, J.D.'s police statement was led pursuant to s. 715.1, which means it becomes part of J.D.'s in-court testimony, as if she were giving the statements on the videotape in court (R. v. F.(C.C.), [1997] 3 S.C.R. 1183, at para. 45). It is my view the inconsistencies referred to by the defence were minor, if they could even be termed to be inconsistencies. This was not a case where there were material inconsistencies between J.D.'s police statement and her in-court testimony that went directly to the heart of her allegations. In considering the entirety of her evidence, both her police statement and her testimony in court, her evidence was consistent, especially as it related to central features of her allegations against S.H., which consistency countered, or at least mitigated, Mr. Scott's contention J.D. was not a credible witness (R. v. L.O., supra, at paras. 43-45). I am not considering that J.D.'s prior consistent statement to the police in any way corroborates or confirms her testimony.

[133] J.D.'s evidence concerning P.H. asking her father if they could get the dogs and bring them downstairs, and how she and P.H. got the dogs and brought them down for 10 minutes was consistent with Ms. H.'s evidence that at 4:20 a.m. she heard the dogs downstairs and then heard the girls with the dogs in the kitchen. Ms. H. testified she heard the girls downstairs with the dogs and heard them in the kitchen with the dogs, laughing and giggling, which corroborated J.D.'s evidence of she and P.H. bringing the dogs back upstairs. P.H. had no recollection of the dogs ever being in the basement or that she asked her father if they could bring the dogs down into the basement or even whether her father was ever in the basement. P.H.'s evidence on this issue was puzzling because in terms of what was happening in the basement after 12:30 a.m., when she testified she likely fell asleep, she had absolutely no recollection of anything that happened with the dogs. She did not contradict J.D.'s evidence that she asked her father if they could bring the dogs down into the basement. What was curious about P.H.'s evidence was that she could remember the details of everything that occurred before she fell asleep and after she woke up in the morning, however, she had no recollection of anything that occurred in the basement between those times, which was when J.D. was texting her and P.H. ultimately sent J.D. texts and the dogs were downstairs, as heard by her mother at 4:20 a.m. What is also curious is that P.H. recalled her mother texting her around 4:20 a.m. asking why they were still up and awake but she did not recollect bringing the dogs up to the kitchen at 4:20 a.m. In any event, the only evidence contradicting J.D.'s evidence on this issue is S.H.'s evidence, which I have rejected. His evidence was also, as I pointed out above, inconsistent with his wife's evidence as he testified the girls were never in the kitchen at any time and the dogs were not in the basement any later than 2:45 a.m.

[134] It was J.D.'s evidence that S.H. told P.H. to bring the dogs upstairs and J.D. decided to go with her because she was not going to stay with S.H. alone in the basement. In my view, this was also consistent with what Ms. H. heard in the kitchen – both girls with the two dogs at 4:20 a.m. When they brought the dogs upstairs there was nobody on the main level. J.D. also told the police that Ms. H. texted them to go to bed when they were back downstairs, which was consistent with Ms. H.'s evidence that she texted her daughter at 4:24 a.m. and told the girls to go to sleep. P.H. also recalled her mother texting her and asking her to go to bed and go to sleep. When Ms. H. came downstairs she only saw S.H. in the kitchen. When she asked him why the pugs were out of their enclosure he told her he had to take them outside to go to the bathroom.

[135] The defence submitted it would be very difficult for S.H. to go up and down the stairs four or five times, as attested to by J.D. However, on S.H.'s own evidence he went back and forth four times up and down the stairs to retrieve each dog separately.

[136] As discussed above, a small, but significant, piece of evidence was J.D.'s evidence that S.H. was wearing a red shirt when he was lying beside her on the mattress touching her. S.H. testified he always wore his work clothes to bed when he slept on the couch in the living room. He testified in chief he was wearing a grey and black Beer Store shirt on the early morning of Sunday because on Saturday, May 26, 2018, this was what he wore to work. What is significant, as I indicated above, was that J.D. told Detective Ahee in her statement that S.H. was wearing a red shirt in the early morning hours of Sunday, May 27, 2018, because he was involved in a fund raiser on Saturday at work. In fact, S.H. was involved in the Leukemia Bottle Drive that The Beer Store ran yearly, which raised $1.7 million and for which there were special red t-shirts and red shirts the employees wore advertising the initiative. A.G. testified she expected S.H. would have been wearing a red shirt because he was "good at wearing it." S.H. himself posted on his Facebook page a photograph of the employees of the Beer Store where he worked, where all of the employees were wearing red shirts, with the exception of one male employee, standing in the back of the group shot who was not even wearing a black and grey Beer Store shirt, because as S.H. testified he was proud of the company's accomplishment. It is my view J.D. knew S.H. was wearing a red shirt because she saw him wearing one and S.H. or someone else in his family, P.H. or Ms. H. or A.H., told her about the fund raiser, which was the reason his work shirt was red. It is my view looking at the totality of the evidence on this issue, S.H. was wearing a red shirt during the early morning hours of May 27, 2018.

[137] As I indicated earlier, it is my view the texts by J.D. to P.H. at 2:59-3:01 a.m. and her texts to her friend Lauren at 3:52 and 4:14 a.m. should be admitted at res gestae and can be introduced for their truth. These texts corroborate J.D.'s evidence that she was afraid, she did not know what to do, and she did not know what S.H. would do if she called out. In my view her explanation for the texts makes perfect sense, particularly given her age. The texts as I have indicated reflect her fear and uncertainty as to how to respond to what S.H. was doing to her.

[138] The continued texts also support J.D.'s credibility as they demonstrate she continued to text Lauren about being upset. These later texts provide narrative and context as circumstantial evidence to access J.D.'s credibility and reliability. At 9:12 a.m., Lauren texted J.D. in response to the two much earlier texts (Exhibit 4a) in capital letters: HI, WAKE UP, PLEASE (three separate texts) and then at 9:15 a.m., Lauren texted J.D., "I'm so sorry I was tired." J.D. responded by text at 9:15: "I'm awake." "Can't talk now though. Later tho please." (text from J.D. to Lauren) at 9:16 a.m. Lauren responded to J.D., "Sure. Are you alright now though?" at 9:17 a.m. In the last of these texts in the morning J.D. responded, "Yeah I think so," at 9:17 a.m.

[139] There was a further exchange of text messages between J.D. and Lauren starting at 2:04 p.m., where J.D. sent another text to Lauren, "There's seriously something I desperately need to tell somebody about…are you available to hangout tonight?" Lauren responded "Most likely. Would you like to tell me now?" at 2:21 p.m. J.D. responded, "Can't do it over text," at 2:22 p.m. and Lauren texted back, "Okay. I won't be home for a bit. Everything going to be alright?" at 2:22 p.m. J.D. responded, "Yeah," at 2:23 p.m.

[140] It is my view all of these texts are admissible pursuant to the principles in the recent Ontario Court of Appeal decision of R. v. Khan, 2017 ONCA 114, [2017] O.J. No. 745 (C.A.), and can be used in my assessment of J.D.'s in-court testimony respecting the sequence and timing of events and her emotional state at the time the texts were sent. These texts relate to my assessment of J.D.'s credibility and reliability. J.D. testified she met with Lauren in a park around 4:30 p.m., and told her she would talk to her later, as she had decided to tell her parents first what happened at the sleepover when she went home. J.D. testified she decided to first tell her parents on the evening of May 27, 2018, what had happened earlier that same day. After she told her parents, they took her to the police station the next day, May 28, 2018, and she spoke briefly to a police officer but it was not on video. She made an appointment to come back to the police station to meet with Detective Ahee, which occurred on May 31, 2018. This statement was provided on video, which was played in court pursuant to s. 715.1 of the Criminal Code. It is my view the additional text messages in Exhibit 3 and Exhibit 4b to 4d, provide context and narrative relating to the timing of the incident involving S.H. and J.D.'s emotional state just after those incidents took place and they are relevant to my assessment of her credibility and reliability of her in-court evidence.

[141] Finally, the most significant piece of evidence corroborating J.D.'s evidence was that of Ms. H.'s evidence of being awakened at 4:20 a.m. as a result of hearing P.H. and J.D. with the two dogs on the main floor in the kitchen. This evidence was completely inconsistent with S.H.'s evidence concerning the two dogs, which he testified escaped from the pen around 2:30 a.m. He was not prepared to agree the dogs went into the basement any later than 2:45 a.m. Further, S.H. testified the girls were never in the kitchen with the dogs at any time, which again, is completely inconsistent with his wife's evidence. Ms. H. also heard laughter coming from the basement and in chief she testified she heard the dogs downstairs and then heard them back up on the main floor. In cross, she testified she heard the girls with the dogs on the main floor. It is my view Ms. H.'s evidence corroborated J.D.'s evidence about how she and P.H. brought the dogs downstairs to play with them after P.H. asked her father if they could get them. Ms. H. heard laughter downstairs from the girls and heard the dogs in the basement. She then heard the dogs on the main floor in the kitchen with the girls. S.H. would have had to be in the basement for P.H. to ask his permission, which also consistent with J.D.'s evidence of S.H. being in the basement and P.H. being aware he was there. In addition, when P.H. brought the dogs back upstairs J.D. went with her so as not to be alone with S.H. and Ms. H. only heard the girls in the kitchen with the dogs. She never heard S.H.'s voice throughout the whole night or early morning.

[142] It is my opinion Ms. H.'s evidence corroborated J.D.'s evidence concerning the dogs being in the basement after S.H. had touched her while lying on the mattress beside her under the opened sleeping bag. Ms. H.'s evidence as I indicated above demonstrates the untruthfulness of her husband's explanation for the dogs being out of their enclosure. In fact, he did not tell his wife the dogs were in the basement because they escaped out of the enclosure, ran through the open basement door and he had to go after them to retrieve and return them to their pen. He told Ms. H. he had to take the dogs outside to go to the bathroom.

[143] Considering the totality of the evidence in this case I accept the evidence of J.D. that S.H. lay beside her on the mattress in the basement and touched her buttocks, her breast area and her vagina area – over her clothes and on one occasion he attempted to put his hand under her clothes by her hip at the waistband of her jean shorts but was unsuccessful because J.D. got off the mattress and went into the bathroom. This was when she first texted Lauren. In my view the Crown has proven S.H. intentionally applied force to J.D., which she did not consent to and could not consent to because of her age, in circumstances that were of a sexual nature, having regard to the areas of J.D.'s body S.H. rubbed and touched over her clothes and the time when S.H. was lying on the mattress. The force as indicated above does not have to be forceful. Further, the only reasonable inference, although this is not an essential element for sexual assault, was that when S.H. touched J.D. in the areas of her body she described, it was for a sexual purpose, which is an essential element of sexual interference. In my view, considering the whole of the evidence, the Crown has proven the essential elements of the charges of sexual interference and sexual assault and there will be findings of guilt on both.

[144] The rule against multiple convictions requires that I enter a conviction on only one of the offences of sexual interference and sexual assault. It is my view the appropriate charge to register the conviction on is the offence of sexual interference and therefore I impose a conditional stay on the charge of sexual assault (R. v. Kienapple, [1974] S.C.J. No. 76 and R. v. Prince, [1986] 2 S.C.R. 480). The Crown is entitled to have a conviction registered on the most serious offence, determined by the maximum punishment: R. v. Loyer, [1978] 2 S.C.R. 631. Consequently, there will be a conviction registered in respect of the sexual interference charge.

Released: January 6, 2020

Signed: Justice Peter C. West