WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

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

Ontario Court of Justice

DATE: 2023 12 21 COURT FILE No.: Toronto Region 4810-998-22-40001726

BETWEEN:

HIS MAJESTY THE KING

— AND —

C.V.

Before: Justice Christine Mainville Heard on: November 14, 15 and 16, 2023 Reasons for Judgment released on: December 21, 2023

Counsel: Stephanie Abrahams......................................................................... counsel for the Crown Alex Zheng and Adam Goodman............................................... counsel for the accused

Mainville J.:

[1] C.V. is charged with two counts each of sexual interference and sexual assault in respect of his former stepdaughter, A.T. The two counts relate to two instances of massaging A.T. in the fall of 2018, when A.T. was 14 or 15 years old.

[2] The Crown called A.T. and her mother, J.S., to testify. Catherine O’Hara, the Human Resources manager where the accused was previously employed, also testified in respect of a “confessions of sins” letter she received which the accused would have written in 2021, around the time of his arrest for these offences. Mr. V. did not testify.

Factual Overview

[3] The accused C.V. married J.S. in 2011. He moved in with her and her two kids from a previous relationship, including A.T., in November 2016 when he moved to Canada.

[4] By all accounts, Mr. V. was very involved with A.T.’s schooling and extra-curricular activities. A.T. played on her high school’s volleyball team and Mr. V. took an interest in A.T. becoming a strong player.

[5] A.T. alleges that in the fall of 2018, Mr. V. told her that she had to do exercises which he demonstrated for her. On two occasions, they performed stretches and exercises together at home in the evening. Following each workout, Mr. V. told A.T. he would massage her so that she wouldn’t be sore from the exercises the next day. He took out a massage table from a storage unit within the apartment and proceeded to massage A.T.’s back and buttocks. She had not told him that any part of her body was in pain.

[6] A.T. indicates that although she did not wish to exercise or be massaged by her stepfather, she complied and did not object because she believed he would take away her electronic devices if she refused.

[7] A.T. alleges that on both occasions, she laid on her stomach, clothed. Mr. V. first massaged her on her back underneath her shirt and bra, before massaging her on her buttocks and near her groin area, underneath her underwear. She does not recall if he massaged other parts of her body such as her legs.

[8] On the first occasion, A.T. states that she was wearing loose-fitting pants and that Mr. V. indicated she needed to change to shorts. She declined, saying that what she was wearing was OK. He then told her to lift her shirt up and helped her do so. He massaged her back with his hands, using some kind of lotion or oil. A.T. testified that Mr. V. also asked her to remove her bra but she again said no. Mr. V. massaged her on her back, underneath her shirt and bra. She felt uncomfortable but did not express anything.

[9] Mr. V. then asked her to roll up her pants and she rolled them up above her knee with his assistance. He proceeded to massage her butt area, underneath her underwear, for approximately 10 minutes. He alternated hands and went close to her groin area, always on the backside. She clenched her butt so that he would not touch her vagina and he said to loosen it up. He did not touch her vagina. She felt violated and uncomfortable but did not say anything.

[10] A.T. then sat up and Mr. V. indicated the massage was over. A.T. believes her older brother was home but not in the living room on this occasion. She does not recall where her mother was, but she was not in the living room.

[11] In the days following this incident, A.T. told her mother she no longer wanted to exercise. She did not tell her why. She did tell her mother that Mr. V. massaged her but did not tell her anything specific about it. She told her mom not to tell the accused.

[12] Shortly thereafter, Mr. V. told A.T. that she had to work out that day or he would take away her devices. They again exercised together. A.T.’s mother was present on this second occasion, and she remained in the living room during the exercises.

[13] At some point during or after the exercises, A.T. says she cried out to her mom. She did not recall if this occurred before or after Mr. V. started to massage her. Her mom told Mr. V. not to force A.T. to do the exercises. He didn’t listen and she completed the workout.

[14] Despite A.T. having also told her mother that she did not want to do any massages, Mr. V. again massaged A.T. He removed the gym equipment to make room for the massage table. A.T. recalled that her mother was no longer in the living room at that point. She recalls her mother coming back at some point but doesn’t know when.

[15] A.T. described Mr. V. again massaging her back underneath her shirt for approximately 10 minutes, and the same area on and around her butt underneath her shorts and underwear. She again clenched her butt when he went close to her vagina and told him to stop. She was crying and recalled that her mother was there at that point in time, having returned to the couch area.

[16] A.T. testified that she again told her mother she did not want the massage or exercises anymore. She thinks her mother, who was watching the massage at this time, told Mr. V. not to force her to continue. He stopped. A.T. did not tell her mother at that time where Mr. V. had touched her, but she confirmed that her mother was present when Mr. V. was massaging her buttocks.

[17] Mr. V. did not massage her again after this incident.

[18] Mr. V. and A.T.’s mother had a baby in April of 2019. A.T. was then in the Philippines between about May and August 2019. When she returned, A.T.’s grandmother came to reside with them.

[19] A.T. only later reported the matter to her mother and subsequently to the police, after an argument she had with Mr. V. in the fall of 2021. The argument stemmed from something that had happened to A.T. in her youth and that did not relate to Mr. V. He got very upset and started acting in a way that made A.T. fearful for her own safety and that of her younger brother, who was home with them at the time.

[20] A.T. began recording Mr. V. during this argument, because he kept repeating the same thing over and over.

[21] At the outset of this recording, only a short portion of which was played at trial, Mr. V. is heard saying “I didn’t do what you said I did. I am guilty of fondling, that’s it; not molestation. That’s terrible, you are almost 16.” While that is my best effort at deciphering what is said, it is possible that Mr. V. in fact said “you were almost 16” or “you are over 16”. A.T. was 17, about to turn 18, at the time of this conversation. There is little context for this statement, but A.T. testified that she took it as referring to the 2018 massages. Mr. V. had not spoken to her about the 2018 incidents prior to then.

[22] A.T. called her mom at work so that she would come home. The family then fled the home. A.T. agreed that from that point on, she wanted Mr. V. out of her life, and began seeing him in a different light. Shortly thereafter, she reported the alleged assaults to the police.

[23] Sometime after the audio recording on November 8, but before A.T.’s birthday a couple weeks later, Mr. V. also texted A.T. indicating “I didn’t break any laws….. you are not a minor, instead you are […] young woman and are over the age of 16.”

[24] In late November 2021, Mr. V. also texted Ms. O’Hara to request time off work given the turmoil at home. On November 26th, he informed her that the police planned to arrest him.

[25] On December 3, 2021, Ms. O’Hara received by mail an 8-page handwritten letter addressed to her, as the company’s HR manager. It was signed by Mr. V. who included his address and wrote, at the outset of the letter, “My Confessions of Sins”.

[26] The letter begins by stating that his stepdaughter, A.T., “became the object of obsession; infatuation; and addiction…”. The letter goes on to address various details of their relationship and of the family’s life circumstances. It describes, at length, instances of Mr. V. intently watching A.T. masturbate. It then goes on to explain why it was important to Mr. V. that A.T. be good at volleyball, and how he implemented light exercises and strength training for her, as well as deep stretching and sports massages.

[27] In the letter, Mr. V. states that A.T. felt pain from the sport. He describes how one morning, he put baby oil on his hands and massaged her abdominal muscles after she complained of abdominal pain. He also describes her demanding that he massage her upper thighs harder, and her getting aroused by this. He then states: “My sins after that – I was more into pleasuring her, instead of training her…”

[28] Mr. V. goes on to describe the birth of his son, and how his family went to the Philippines and returned with Grandma. He then described further instances of him observing A.T. and not being able to get enough of her.

[29] The letter ends by referring to “what is happening lately”, being that his wife abducted and kidnapped his son, and how somehow, he is the one to be arrested. He describes how he has no will or desire to live without his son.

[30] Mr. V. did not testify in his defence. The defence did, on agreement of the Crown, file a police report to prove a statement intended to contradict testimony given by A.T.’s mother.

Principles to be Applied

[31] Mr. V. is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. V. is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[32] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and whether the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.

[33] Testimony can be assessed through a non-exhaustive list of factors, including (a) the plausibility of the evidence; (b) the presence of independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, (f) the witness’ demeanour while testifying.

[34] A trial judge is entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony.

[35] The accused of course has no obligation to testify, and I do not draw any adverse inference from his decision not to do so.

Elements of the Offences

[36] There is no dispute that A.T.’s age at the relevant time meets the age element of the offence of sexual interference, that of being under 16. There was also ample evidence that Mr. V. knew A.T.’s age in the fall of 2018, including the fact that he followed her schooling and the family acknowledged her birthdays with a birthday cake that indicated her age each year.

[37] A.T. was also below the age of consent such that any consent to the touching would not afford a defence to the charge of sexual assault: s. 150.1 of the Criminal Code.

[38] To establish the offences charged, the Crown must also prove that Mr. V. intentionally touched A.T. on any part of her body, and that the intentional touching was for a sexual purpose (for the charge of sexual interference), or in circumstances of a sexual nature (for the charge of sexual assault).

Analysis

General Credibility and Reliability Findings

[39] I had significant reliability concerns about A.T.’s evidence. To be fair, the alleged incidents would have occurred approximately three years prior to her first report to the police, and five years prior to her testimony before this court. They related to two massages that took place days apart. As such, a lack of recall in respect of some details as well as some discrepancies are to be expected.

[40] Even so, A.T.’s lack of recall was substantial. It resulted in inconsistencies in her evidence, some of which I canvass below. More significantly, it led to her providing details that she later acknowledged not recalling. It is this pattern that causes me significant concern, given that it suggests she may have testified to other details that she in fact does not reliably recall.

[41] For instance, in relation to the first massage, A.T. testified in chief that she did not recall if Mr. V. massaged any parts of her body aside from her back and buttocks. She then agreed that he massaged her legs, but when asked if she had an actual memory of that, she said no. When asked if she had just been guessing when she said he did massage her legs, she said her answer had been maybe, that she didn’t remember. That wasn’t in fact her answer. She was later asked if she recalled him massaging her hamstrings or the back of her thighs. She confirmed that he did – twice. But when asked if she had a specific memory of that, she said no. She then explained that he moved around when massaging the back and butt, and that would be part of that area.

[42] Another example related to how long the first set of exercises lasted. In examination-in-chief, A.T. estimated it as lasting somewhere between 15 and 30 minutes. To be fair, this estimate came after first indicating that she did not know how long it lasted. She did however proceed to state that it was more than 15 minutes and less than 30 minutes, only to agree in cross-examination that she was just guessing. She had no recall of how long it took.

[43] Similarly, A.T. could not recall how long after the first incident the second one happened. Her memory was refreshed by the Crown and she accepted it was a couple days later. When asked to clarify if by “a couple days”, she had meant two or more days, she was firm that it was two days. In cross-examination, she again accepted that it was two days before being asked if she recalled this specifically. She did not, but nevertheless denied that it could have been more or less. When asked again if she was therefore certain that it was two days, she indicated that she did not know. She then stated that she was certain both incidents happened in November, before being shown her police statement and agreeing that she did not know what month it happened. She could only say it was before Christmas time. She did not know if it was before or after her November birthday.

[44] A further example: when asked whether the accused lifted her shirt during the second massage, she said yes. When asked whether she was sure of this, she said she didn’t remember.

[45] Many of these details are not consequential in and of themselves, and I would not be bothered by the fact that she did not recall them. What is concerning is that she testified to a recollection, before indicating that she in fact had none and was essentially just guessing. I must therefore exercise caution in assessing her evidence, in particular regarding the details of what is alleged.

[46] In terms of internal inconsistencies in her evidence, the more significant one was in relation to how the first incident ended. When first asked in examination-in-chief, A.T. testified that it ended when Mr. V. said it was done. She also testified that her response to Mr. V. saying she had to loosen up her clenched butt was to simply say no. After her memory was refreshed, she agreed that she sat up at that time, said stop and indicated she did not want to do this anymore. When asked by the Crown at what point Mr. V. told her the massage was done, she responded it was after the massage was over and after she had sat up. Some time had passed by – he did not say that right away as she sat up. She first stood and went away from the massage table, and he began folding the table. She then went to the washroom.

[47] In cross-examination, she agreed that she clenched her butt when he was touching her butt cheeks, but she did not verbalize that she did not want him to touch her because she was afraid of getting into trouble. This is inconsistent with her refreshed memory that she did sit up and say stop. She agreed that at some later point while Mr. V. was massaging her buttocks, she told him she didn’t want to do this anymore. Her evidence at that point was that he continued massaging her for a short period after she said stop, and she then got up. Contrary to her evidence in chief, she twice confirmed that he had already said that the massage was over by the time she got up. She then reverted to saying she got up first. When counsel sought to again go over the order of things, she appeared to question the premise that she verbalized that she didn’t want to be massaged anymore, before agreeing that she did. When asked whether he said the massage was over while she was seated on the massage table and that’s what made her hop off, she agreed, but seemed unsure of herself.

[48] In my view, these inconsistencies are explained by the fact that she had no real recollection of how the massage ended. While that is excusable, it is again concerning that she did provide answers that I must find unreliable. I certainly cannot have confidence that that is in fact how the first massage came to an end.

[49] Even more concerning were the significant discrepancies between A.T.’s evidence and that of her mother J.S., who was a witness to the last massage.

[50] I found J.S. to be a very credible witness. She testified in a careful and straightforward manner, and I had no reason to doubt her testimony.

[51] J.S. had a specific recollection of the final massage, which she said took place in the fall of 2018, and she had good reason to. Even though she understood from both A.T. and Mr. V. that they had worked out on other occasions and that he gave her massages on these occasions, this occurrence was the only time she had been present for the workout and massage. She also agreed that she paid close attention given that A.T. had expressed to her that she no longer wanted to exercise because it hurt or she wasn’t comfortable. Her purpose in being present for the exercises and massage was to observe.

[52] Defence counsel did put in evidence a prior statement J.S. made to the police in 2021 that A.T. had told her that Mr. V. had never touched her inappropriately. J.S. denied that that is what she told the police – she indicated that that could not be the case since the very reason she was at the police station was to report A.T.’s allegations, although it appears that she was also there for another reason relating to Mr. V.

[53] The proven statement was part of a police report and not a recorded or verbatim statement made by J.S. At the end of the day, I cannot be certain that J.S. in fact made that statement to the police. The report may well have erroneously relayed what she stated, in particular given that English is not J.S.’s mother tongue. Perhaps more likely is that J.S. was mistaken in her testimony about the sequence of events relating to A.T.’s disclosure. In any event, I do not view it as detracting from J.S.’s credibility generally. Any inconsistency on the point in my view does not undermine her own account of what she witnessed during the final massage – it would only serve to undermine A.T.’s own evidence that Mr. V. touched her inappropriately.

[54] I therefore begin with considering the second alleged offence, which would have been witnessed by J.S.

Findings of Fact Relating to the Second Massage

[55] There were significant inconsistencies between A.T. and her mother’s evidence relating to the last massage.

[56] A.T. testified that her mom was present during the second workout and massage session, but that she was on her phone and that she left at some point in time prior to returning. She did not know exactly when that was, but this left open the possibility that her mother had not witnessed at least part of the massage. I say partly, because A.T. did indicate that her mother was present at some point while Mr. V. was massaging her buttocks.

[57] A.T. also testified that she cried out to her mom during this incident. And although she initially denied having verbalized to Mr. V. that she wanted the massage to stop, she agreed in cross-examination that she did tell him to stop, got up, and began yelling at him – all of which took place in her mother’s presence. She also agreed, after her memory was refreshed by the Crown, that in response to her crying, Mr. V. told her she was a drama queen.

[58] Yet J.S. was clear that she remained in the living room throughout the encounter and that she was specifically observing the workout and massage since that was her purpose in being in the living room at that time. She testified that she watched the 30-minute to one hour workout in its entirety and confirmed that it involved gym equipment. She then watched Mr. V. massaging A.T.’s legs and hamstrings. She was seated on the couch right in front of the massage table and could see everything. A.T.’s evidence confirms that J.S. was on the couch when she was in the room.

[59] J.S. could not recall whether any other part of A.T.’s body was massaged. She only recalled the calves and hamstrings. She testified that she had a good view of the massage and agreed that she was watching because the reason she was there was to observe. She was there from the beginning to the end and did not leave the room. While she indicated that A.T. appeared uncomfortable, there was no suggestion by J.S. that anything untoward occurred during the massage.

[60] This is in contrast with A.T.’s testimony that during this massage, Mr. V. massaged her close to her vagina. When asked in cross-examination whether she had a specific memory of that, she indicated that she did not remember off the top of her head. She agreed that she told the police that he had never come close to her vagina during the second incident, and that she was being truthful and had a better memory of the events at that time. Yet she then continued to insist that he in fact did come close to her vagina, explaining that the events were going so fast.

[61] J.S. also denied that A.T. cried out to her during the massage. She stated that A.T. did not say anything while Mr. V. was massaging her, or when they were exercising. A.T. told her after the massage was finished that she didn’t want to do it anymore. This happened when it was only the two of them together – the accused wasn’t present. J.S. indicated that she would inform Mr. V. She confirmed it was indeed the last time that they exercised.

[62] These are significant discrepancies between the two accounts of what happened during this second alleged incident. Yet both witnesses agreed this was the only time the mom was present for the workout and massage.

[63] I accept J.S.’s evidence as being both reliable and credible. There were no issues with her account of the massage, whereas A.T.’s own account was at times inconsistent.

[64] For instance, in her examination-in-chief, A.T. testified that she cried out to her mother in English. She indicated this when specifically asked whether it was in English or Tagalog or both. In cross-examination, she confirmed this response but then agreed she had told the police that she had spoken to her mother in Tagalog. Her mother would have responded in English. To explain this inconsistency, she indicated that she had told her mom in both English and Tagalog. She also claimed that she had told the Crown in chief that she had spoken to her mom in both languages. She had not, despite having specifically been asked.

[65] Again, my concern is not about the particular detail and what she recalls of it or not – it is the unreliability of the answers given. I have no hesitation in accepting J.S.’s account of the massage over A.T.’s. I therefore find that Mr. V. massaged A.T.’s legs in the fall of 2018.

[66] To be sure, J.S. did not observe anything she interpreted as sexual. While this was not asked of her specifically, it was the gist of her evidence. Any ambiguity resulting from the absence of evidence cannot serve to alleviate the Crown’s burden of proof.

[67] But the fact that I am unable to conclude that A.T.’s back or buttocks were massaged does not end the analysis.

[68] As further set out below, the accused’s purpose in touching the complainant is to be considered. To determine whether the touching occurred in circumstances of a sexual nature and establish a sexual assault, all the circumstances must be examined. I am to consider not only the part of the body touched and the nature of the physical contact, but also the circumstances in which it occurred, any accompanying words or gestures, and any evidence of the accused’s purpose in intentionally touching the complainant. While the presence of sexual gratification is not required, it is a relevant factor: R. v. Chase, [1987] 2 S.C.R. 293, at p. 302; R. v. K.B.V., [1993] 2 S.C.R. 857.

[69] Here, there is additional evidence presented in the form of a confession letter and audio recording, that may inform the analysis. I will turn to these items of evidence after addressing the evidence of the first massage.

Findings of Fact Relating to the First Massage

[70] My finding that the second massage, in mom’s presence, did not unfold in the manner described by the complainant, casts significant doubt on A.T.’s account of the first massage. If I cannot rely on her evidence as to how the second massage was performed, how can I accept her account of the first massage?

[71] I do accept that at least two massages took place. Indeed, J.S. corroborates the fact that she witnessed the accused giving A.T. a massage, and it is apparent that this was not the first such occurrence since J.S.’s entire purpose in witnessing the workout and massage was that A.T. did not want it to happen again.

[72] A.T. also admitted to the possibility that she had worked out with the accused on more than two occasions, and that there had been more than two massages over time, even though these were the only two she remembered. She could not recall if Mr. V. ever asked to massage her in Grade 9, before the 2018 incidents. She could not recall if he had ever massaged her abdominal muscles after she complained of abdominal pain, but agreed if he did it would have been prior to the second incident since he never massaged her again afterwards.

[73] The fact of there having been sport massages was also not disputed.

[74] I am therefore able to accept that there had been at least one massage previously performed by the accused on A.T. I also accept that there were no other witnesses to that massage.

[75] If the Crown’s case had consisted solely or mainly of A.T.’s evidence and that of her mother, I would have been left in a state of reasonable doubt as to whether any offence was committed during the massages.

[76] However, the Crown also adduced evidence of what purports to be a confession, both in letter form and in an audio recording. I now turn to this evidence.

The Accused’s Own Statements

[77] The first purported confession was adduced in the form of a short audio recording which I described above.

[78] The weight to afford to the utterance made by Mr. V. as heard in the audio recording very much depends on what he in fact said. As indicated, as I hear it, the tail end of the statement is somewhat unclear. If Mr. V. said to A.T. that she was over 16, he may not have been referring to the 2018 massages at all, since she was under 16 at the time of the alleged massages. It is difficult to exclude this possibility given Mr. V.’s subsequent text message to A.T. referring to her being over the age of 16, and him therefore not having committed any offence.

[79] A.T. understood him to be referring to the massages as that is what she alleges he did to her. But it may well be that he was referring to something that in fact never happened, and that he only fantasized about. I say this because Mr. V. appears to have in some respects been disconnected from reality around this period in 2021, resulting in some delusions about A.T.

[80] As discussed below, some of the contents of the letter he wrote to Ms. O’Hara around the time of his arrest strike me as conflating fantasy with reality. The letter also demonstrates that he was in crisis around this time. For instance, he talks about not having the will or desire to live due to his son being taken away from him. A.T.’s own evidence describing how his conduct around November 8, 2021 made her fearful supports this conclusion.

[81] Given the ambiguity of the audio recording, I therefore conclude that I cannot place any weight on it.

[82] The other important piece of evidence was the letter Mr. V. wrote to his Human Resources manager around the time of his arrest on these charges.

[83] I note first that I have no doubt of the letter’s authenticity. There were many indicators, internal and external to the letter, that confirm its authorship by Mr. V.

[84] In that letter, Mr. V. explains how he became infatuated and obsessed, to use his own words, with his stepdaughter A.T. To be sure, it is a disturbing letter. It is handwritten and at least half of its 8 pages describes Mr. V. observing A.T. masturbating, which may or may not have occurred. Many of those events appear to me to be fantasy, though he certainly appears to genuinely believe that they occurred. While this casts doubt on some of the letter’s contents and whether these events occurred at all, that is not the case for everything described therein. In addition, I believe the state of mind Mr. V. describes as having over time is very genuine.

[85] Indeed, whether some of the events relating to A.T.’s conduct are true or not, the letter certainly demonstrates Mr. V.’s state of mind vis-à-vis his stepdaughter not only at the time he wrote the letter, in 2021, but also as his relationship with A.T. progressed over time.

[86] There are some points of reference in the letter that assist with situating the feelings referenced there in time. These references also serve to anchor at least some portions of the letter in reality, given that they concord with the evidence of A.T. and her mother.

[87] In the letter, Mr. V. discusses A.T.’s participation in the school’s volleyball team and the interest he took in making her a stronger player.

[88] A.T. was part of the volleyball team starting in 9th grade, which was the 2017-2018 school year. The last year she competed was in 11th grade (the 2019-2020 school year), because school stopped following the COVID-19 pandemic.

[89] Both A.T. and her mother testified to the massages that were taking place following the volleyball training exercises that Mr. V. had A.T. do. In the letter, Mr. V. links the massages to these sport exercises as well.

[90] A.T. also accepted that she would talk about volleyball with Mr. V. and that, as far as she could tell, he seemed to want her to get better at it. I accept that, at least at first, Mr. V. genuinely wished to help train A.T. to improve her volleyball skills and her strength. He describes this intent in the letter.

[91] Mr. V. situates the massages in time. His description of the massages and what they became for him is immediately followed by his description of the birth of his son and the family trip to the Philippines, returning with Grandma, all of which occurred in 2019. This was after the alleged massages.

[92] Mr. V. also indicates in the letter that when he first moved in, A.T. shared a bunk bed with her brother. After some time, the sleeping arrangements changed and A.T. had her own room. This passage precedes Mr. V.’s account of the massages. A.T. testified that she had her own bedroom at the time of the incidents in 2018, suggesting that the impugned massages did not take place immediately upon Mr. V. moving in. Mr. V. also indicates in his letter that once the grandmother arrived in Canada, she was sleeping with A.T. in her room. As of mid-2019, A.T. therefore no longer had her own room.

[93] Of note, after the point in the letter where Mr. V. details Grandma’s arrival in the home, he no longer references training or massages – he then only speaks of watching A.T.

[94] Mr. V. also references the fact that he knew the last two years of high school were important to be able to get a volleyball scholarship, and he wanted to get her ready for those critical years. The training therefore began before that.

[95] The letter also has other indicators that it is at least in part grounded in reality. This includes Mr. V.’s account of recent events, including his wife having left with their son and his impending arrest.

[96] I also do not lose sight of the context in which Mr. V. sent this letter to Ms. O’Hara. He thanks her for her help in the letter, and he clearly feels he can confide in her. The tenor of the letter is one of accounting for his sins and processing what is happening. It bears the hallmarks of reliability, to the extent that it conveys his feelings and state of mind, and what he believes has happened – based in both truth and fantasy.

[97] In my assessment, the sport massages Mr. V. describes in the letter and how they evolved in his mind are very much anchored in reality. The evidence is clear that these massages stopped in the fall of 2018, with the one that J.S. witnessed.

[98] In what I view as the key passage in the letter, Mr. V. states: “My sins after that – I was more into pleasuring her, instead of training her…”. This specifically speaks to his later purpose in massaging A.T. I accept that the sport massages that A.T. situated as being in the fall of 2018 correspond to this later time period, given that they subsequently came to an end.

Sexual Purpose and Circumstances of a Sexual Nature Analysis

[99] Touching is done for a sexual purpose if it is done for the accused’s sexual gratification, or to violate the complainant’s sexual integrity: R. v. Jarvis, 2019 SCC 10, at para. 145; R. v. Morrisey, 2011 ABCA 150, at para. 21. To determine the purpose of the touching, all the circumstances surrounding it should be considered.

[100] An often-telling indicator of the sexual purpose or nature of the touching is the body part(s) touched.

[101] I accept that Mr. V. at the very least massaged the back of A.T.’s upper legs (her groin area on the back side), as she acknowledged. He admits to having done so in the letter (referencing her upper thighs). This is also consistent with the massage that J.S. witnessed on the second occasion, relating to A.T.’s hamstrings.

[102] Given the issues with A.T.’s evidence, however, I am unable to find that Mr. V. massaged her buttocks underneath her underwear or her back underneath her shirt and bra. Based on J.S.’s evidence, I found that this is not how the second massage transpired, contrary to A.T.’s testimony. I do not see how I could then rely on A.T.’s evidence that the first massage related to the same parts of her body.

[103] I also cannot be confident about what was said and done during the massage. I am nevertheless satisfied that A.T. was uncomfortable during the massages. This is confirmed by J.S.’s evidence that A.T. did not want the massages to continue, and she appeared uncomfortable. I also accept that A.T. did not request the massages – nor were they prompted by indications of pain on her part. Rather, I accept that they were initiated by Mr. V. at his own behest.

[104] In this case, there is evidence from the accused himself about what his purpose was. The purpose that Mr. V. describes in the key passage of the letter is a sexual purpose.

[105] Moreover, other portions of the letter make clear his state of mind and support the sexuality of his purpose. For instance, while referencing early events in their relationship, Mr. V. references A.T. as “a very beautiful stepdaughter, who was nothing less than stunning below the breastline”. On one occasion that he describes in great detail, he speaks of being able to hear her “vaginal juice” while he spied upon her masturbating, becoming very aroused and having to “relieve” himself in the washroom. He also describes kneeling at the foot of her bed and watching her with an erection, and subsequently relieving himself in the washroom. In another passage, he describes checking A.T.’s shorts and panties and finding “a large amount of thick orgasm – the most I’ve ever seen – there was a big bubble also after 2 ½ hours – it was my stretching her & massaging her made her so horny that it cause her to do that”.

[106] While the letter includes references to what may be fantasy, including the belief that A.T. was aroused by the massage, I am confident that what may well have started as genuine sport massages culminated in Mr. V. massaging A.T. for a sexual purpose.

[107] Even if Mr. V. had another purpose in touching A.T. – here, massaging her for a sport-related purpose – the offence is proven where there was also a sexual purpose to the touching: R. v. B.J.T., 2019 ONCA 694, at para. 37.

[108] Altogether, then, and on the strength of his utterance that the massages became more about pleasuring A.T., I am satisfied beyond a reasonable doubt that Mr. V. touched A.T. in the fall of 2018 for a sexual purpose. He found sexual pleasure in it and violated A.T.’s sexual integrity.

[109] Whether the conduct was animated by a sexual purpose constitutes the mental or fault element of the offence of sexual interference. It relates to the accused’s state of mind and requires an ulterior or specific intent: B.J.T., at paras. 37 and 51. I have found that this state of mind existed at the time of the massages.

[110] By contrast, under the law of sexual assault, the sexual nature of the assault is part of the actus reus or “physical” element of the offence: B.J.T., at paras. 51, 54 and 59. The touching must have occurred “in circumstances of a sexual nature”, such that the complainant’s sexual integrity was violated. This is determined objectively, and the accused’s sexual purpose is one factor to consider among others. The touching takes place in circumstances of a sexual nature if the sexual nature of that intentional physical act would be apparent to a reasonable observer: see R. v. G.F., 2021 SCC 20; R. v. Litchfield, [1993] 4 S.C.R. 333; Chase, at p. 302.

[111] Said differently, as explained by the Court of Appeal, “To determine whether what occurred amounted to a sexual assault, the issue for the court is to decide: ‘viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?’”: B.J.T., at para. 55.

[112] The use of the term “observer” and reference to the “visibility” of the sexual context may not be apt for a case such as this. That is because the sexual context in this case largely arises from the accused’s purpose in massaging A.T. – something that is not necessarily visible to a person standing in the room.

[113] Indeed, in this case, J.S. did observe one of the massages in its entirety and did not see anything she interpreted as sexual. I have found that the massage occurred as J.S. described, without the more obviously sexual touching described by A.T.

[114] To be sure, however, “the intent or purpose of the person committing the act” and whether “the motive of the accused is sexual gratification”, to the extent that these may appear from the evidence, may also be factors in considering whether the conduct is sexual: Chase, at p. 302. Given the relevance of the accused’s purpose and intent, it must be the case that the “reasonable observer” is one who is aware of that purpose and intent.

[115] An analogy can be made with a doctor who touches a patient in a manner that may appear medically appropriate, in particular to a layperson, but who is in fact doing so for a sexual purpose. In such a case, a sexual assault would be made out: see, by implication, R. v. Marshall, 2017 ONCA 801, at paras. 83, 85-86. If expert evidence is adduced to establish that there was no medical purpose to the touching, the hypothetical reasonable observer would be one apprised of this evidence, to assess the sexual nature of the touching.

[116] This analysis is supported by cases that have found that “[t]he touch does not necessarily have to be sexual in any way because the sexual element can arise from circumstances other than the manner in which the victim was touched. The touch does not have to be to a sexual part of the body”: Brown et al., Prosecuting and Defending Sexual Offence Cases, Emond, 2020, Second Edition, at p. 35, citing R. v. Dinardo, 2014 ONCA 758; R. v. Higginbottom, 156 C.C.C. (3d) 178 (Ont. C.A.); and R. v. Bernard, [1988] 2 S.C.R. 833.

[117] The sexual circumstances are also “defined as an objective and contemporary standard” and take into account “modern attitudes of what is an acceptable touch and what is sexual”: R. v. Lasecki (1994), 163 A.R. 354 (Q.B.), cited in Prosecuting and Defending Sexual Offence Cases, at p. 35.

[118] As such, if the touching was for a sexual purpose, it will have occurred in circumstances of a sexual nature. The accused’s clear purpose in this case thus colours the entire massage.

[119] In most cases, the sexual purpose will translate into some sort of visible action from which the purpose may be inferred. Most commonly, one does not have admissions from the accused regarding their intent. Without such evidence, the matter will only be reported if it is perceived as a sexual assault by the complainant or any other witness. That perception will be based on the nature of the touching or the circumstances surrounding it.

[120] In this case, A.T. did report the matter, but only after she first disclosed in 2021, in the context of an argument with Mr. V. She believed him to have confessed to touching her sexually during that argument.

[121] There may well have been additional aspects of the massage that suggested to her that it was sexual. But I have found that I need to exercise prudence in relying on that evidence. As a result, it is the accused’s admitted sexual purpose that largely anchors the objective finding that the touching occurred in circumstances that were sexual.

[122] This case is very unusual. Even A.T.’s mother, attentively observing the massage, did not raise any flags about it appearing sexual – nor did she describe it as such. Importantly, however, J.S. was not aware of Mr. V.’s true purpose in massaging A.T.

[123] Mr. V. effectively confessed to massaging A.T. for a sexual purpose. The sexual gratification existed, and the act of massaging became sexual given his purpose, even if it may not necessarily have appeared as such to an observer standing in the room. The test is objective and does not depend on the complainant or any other person’s perception, given that all the circumstances – some of which may not be known to the complainant or witness – must be taken into account: Prosecuting and Defending Sexual Offence Cases, at pp. 35-36.

[124] This is not equivalent to criminalizing someone for merely harboring criminal thoughts. In the present case, those thoughts were acted upon by engaging in the massages. The touching occurred, and its purpose made it criminal.

[125] In my view, this case can be distinguished from the analogy provided by defence counsel: that of a masseuse who is sexually attracted to his or her client and proceeds to give a proper massage, but may after the fact get some sexual gratification from it. I recognize that that may well not cross the line and amount to a sexual assault.

[126] But this case is not about mere attraction. The accused acted on his sexual impulses. He initiated the massages on his stepdaughter, and he eventually came to do so for a sexual purpose. That purpose was made abundantly clear in the detailed letter he wrote. I might have come to a different conclusion if, for instance, Mr. V. had unexpectedly become aroused during an ordinary sport massage, initiated for an entirely non-sexual purpose.

[127] I therefore find beyond a reasonable doubt that the accused’s actions had a clear “sexual context”: R. v. P.L.S., [1991] 1 S.C.R. 909. I am satisfied that all elements of both offences have been proven.

Conclusion

[128] The accused is therefore found guilty on all counts.

[129] Given that the two sets of charges arose from the same two incidents, and subject to hearing from the parties, I propose to stay the two counts of sexual assault pursuant to Kienapple v. The Queen, [1975] 1 S.C.R. 729.

Released: December 21, 2023 Signed: Justice C. Mainville