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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

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

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

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

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

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

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

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

ONTARIO COURT OF JUSTICE

Date: 2024 05 09 Court File No.: Pembroke 19-1654

Between:

HIS MAJESTY THE KING

— and —

CH

Before: Justice J.R. Richardson Heard on: February 1, March 1, 3, June 2, August 23, 2023; January 17, 2024 Reasons for Judgment released on: May 9, 2024

Richard Morris, counsel for the Crown Forest Poff-Smith, counsel for the accused

RICHARDSON, J.:

Introduction

[1] The accused is charged with Sexual Interference, Invitation to Sexual Touching, and Sexual Assault against his daughter, AH between the 1st of September 2018 and the 3rd of November, 2019. He is also charged with breaching the Probation Order he was on at the time for failing to keep the peace.

[2] On January 17, 2024, I ruled that a videotaped statement which AH gave to Detective Constable Jamie Trader of the Ontario Provincial Police on November 4, 2019 was admissible pursuant to section 715.1 of the Criminal Code. See R. v. C.H. 2024 ONCJ 41.

[3] The complainant, AH, was five years old when the statement was given. When she testified before me, she was nine.

[4] At the outset of the trial, I was advised that date, time, identity and jurisdiction were admitted.

[5] On March 3, 2023, I was informed that it was admitted that CH was on probation at the time of the offences.

[6] I was also made aware that as a result of the allegations before the Court, a Sexual Assault Evidence Kit was completed. It did not reveal evidence of penetration or damage to AH’s vagina. The Crown, therefore, was not alleging penile penetration.

[7] This case turns on the two issues: a) The W.(D.) formulation and the assessment of credibility; b) The ultimate reliability of the videotaped statement.

Evidence of A.H.

Introduction

[8] AH testified over the course of four court days in February, March and June 2023:

a) February 28, 2023 for the section 715.1 voir dire for approximately an hour and half between approximately 10:50 am and 2:30 pm.

b) March 2, 2023 for cross-examination for just less than an hour and a half between approximately 9:50 am and 11:50 am. We recessed this day after the Crown expressed concern about the attention span of AH. I noted that AH was frequently stretching, yawning and putting her head down. Defence also shared the Crown’s concerns.

c) March 3, 2023 for cross-examination and re-examination for just over an hour and a half between 10:07 am and 12:40 pm.

d) June 2, 2023 for recall and cross-examination for 25 minutes between 10:26 am and 11:03 am.

Evidence on the Section 715.1 Voir Dire Which is Applicable to the Trial

[9] I repeat and rely upon my summary of AH’s evidence in-chief and her cross-examination on the voir dire which I set out in paragraphs 11 to 21 of the voir dire ruling:

About a week before she testified on February 28, 2023, AH watched the videotaped statement in the presence of Detective Constable Trader.

She also watched it right before she testified on February 28, 2023.

AH testified in-chief that she did not remember giving the statement. She stated however that she recognised herself on the video and that she understood the words that she was saying. When the Crown asked if it “rang any bells” with her or whether she remembered “the circumstances” she was talking about, AH replied, “Kind of”.

The Crown then asked, “And what were you talking about on that videotape?” AH replied, “What my dad did to me.”

When asked how old she was when she gave the videotaped statement, AH stated that she was five.

The Crown then asked, “And what about the other stuff on the tape? Do you think that’s true?” AH replied, “Yes”. The Crown then asked “And why do you think that?” AH stated, “Because I remember how my dad did that to me”.

This is where things get a bit murky. When the Crown asked AH to elaborate what she meant by “what he did to me”, AH stated, “That he put his privates between mine.” When asked if she remembered “anything else?”, AH replied, “No.” She stated, “I only remember a bit of it, but not that much.”

The Crown then embarked on a familiar line of questioning about whether AH’s memory would be better on the day that she testified or on the day that she gave her statement. This did not assist and seemed to only confuse her.

The Crown then asked, “Okay. And the things that you saw on the video tape that you watched earlier today, did that refresh your memory? In other words, did it help you remember?” AH again replied, “Kind of”. When asked what she meant by that, AH indicated, “It kind of made me remember half of it – half of it but not all of it.”

She then proceeded to tell the Crown that she did not remember talking to the police officer on the tape. Despite this, she stated that she was telling the truth. When asked why she thought she was telling the truth, AH stated, “Because then I was serious and it wasn’t a time to joke around.”

When AH was cross-examined, she agreed that she could not be sure that everything that she told the police officer in the statement was the truth. She also agreed with the proposition that because she does not remember everything she told the police officer, she can’t be sure that what she said was the truth. She also reiterated that she did not remember meeting with the police officer in the video.

[10] In accordance with my ruling, the videotaped statement and a transcript of it are Exhibit 1 on the trial.

The Evidence in the Section 715.1 Video Itself

[11] Detective Trader reviewed the difference between the truth and a lie with AH at the outset of the video. She clearly understood the difference. I note that when she testified before me, I questioned her and it was also clear that she understood the difference.

[12] AH stated that she lived with her mom, her dad and her younger brother, O. She stated that her dad’s first name was C and her mother’s first name was V. She said that her mother sometimes called her dad “babe”.

[13] AH indicated that her mother worked at a doughnut shop. Her father worked for a restaurant. AH was able to name the establishments where her parents worked.

[14] AH stated that her dad looked after her when her mother was at work.

[15] AH told Detective Trader that she told Micheline [1] earlier that day that her daddy was doing bad stuff to her. When the officer asked AH what bad stuff he did, she stated, “…my daddy put his private parts in my legs”. When the officer asked AH what she meant by “private parts”, AH stated, “His penis?”

[16] Detective Trader went on to ask AH how this happened. AH stated, “My daddy was doing stuff bad”. Detective Trader asked, “Like what” and AH said, “I forget”.

[17] AH told the officer that when this happened her mother was at work. AH stated that it happened the day before she gave her statement. She said it happened on the couch.

[18] When Detective Trader asked AH if she saw her daddy’s privates, she shook her head “no”. She said that he was wearing a brand new sweater that he got from his work.

[19] AH stated that when it happened, she wanted to cuddle with her daddy.

[20] She told the officer that she was wearing her Minnie Mouse shirt. At first, she could not remember what else she was wearing but when probed, she stated that she had underwear on.

[21] AH told Detective Trader that her father was right beside her.

[22] AH told Detective Trader that there were “other times” with her father’s privates. When asked about details, she said that she forgot.

[23] AH told Detective Trader that her father told her “to keep it a secret”. AH said, “I am not keeping a secret. I have to tell, so.”

[24] Detective Trader asked AH if she had ever touched her daddy’s private part another way. AH stated, “He wants me to hold it and to suck on it.” AH told Detective Trader that this happened in the living room, and sometimes in her mom and dad’s room.

[25] At this juncture in the interview, AH stated, “I don’t really want to talk about, I just want to colour”. Detective Trader started colouring with her. As he did, he continued questioning AH. He asked AH if when this happened her daddy said anything to her. AH reported that her daddy asked, “Does that feel good?”. AH then said, “But I lied to him that it does”. She said that this happened when he was putting his penis through her legs.

[26] AH went on to describe how they were positioned. She explained that her father was laying on his back and her back would be up against her father’s tummy and his chest.

[27] Detective Trader asked AH how it actually felt. AH stated, “It’s hurting.”

[28] Detective Trader asked AH where her private parts were. AH stated, “My vagina.” When asked if she had other private parts, AH stated, “I forget”.

[29] When asked where her daddy’s private parts touched her, AH stated, “On my vagina”.

[30] When asked if her daddy said anything to her, she stated, “Look up to me. Look up.” When asked “to where?”, AH stated, “Look up to his eyes.”

[31] Detective Trader asked AH more questions about what she meant by the fact that it hurt. She said that it was hurting “on the outside”, “and usually on the bottom”. She added sometimes that it hurt “on the inside”. When asked what she meant by this, AH, said, “Like on the inside of your bottom”.

[32] Detective Trader asked AH more questions about her dad asking her to hold on to his penis. She agreed that she would hold his penis and added “and suck on it.” When Detective Trader asked her if she did this, AH stated, “Yeah”. Detective Trader asked her what she used to do this, and she stated, “My mouth.”

[33] She said that when this happened her daddy’s breathing sounded different and she didn’t like it. When the officer asked her how it sounded different, she stated, “I forget what it’s like.”

[34] Detective Trader asked AH how this ended and what her daddy did “when this is done”. AH stated, “I don’t know.” Detective Trader asked if “anything happened to daddy or if she saw anything.” AH answered, “I forget”.

[35] Detective Trader asked AH about the secret. AH stated that her daddy told her to keep it a secret from her friends and her mommy.

[36] When asked if her mother knew about this, AH stated, “Well I said they were watching…. Mommy… daddy was watching videos.” When the officer asked her what kind of videos, she stated, “The same thing.” When the officer asked her what she meant by this, she stated, “The same thing that we do”. When asked what room this happened in, AH stated, “In the car.” She then stated, “And I don’t want to like that Santa’s watching it. I know Santa is.” When the officer asked what she meant by this AH stated, “Because then he will say that I won’t get any presents and I won’t.” She went on to state that her daddy was not going to get any presents because he had been a bad boy.

[37] She then said that her daddy got into fights with her mommy and threw a bucket of toys at her. He also banged a screw on her mommy’s head.

[38] Detective Trader asked AH when her daddy last touched her with his private parts. She stated, “A lot of time”. After the officer prompted her with the fact that earlier in the interview, she had indicated that it happened the day before, she agreed with that.

[39] Detective Trader asked AH what happened yesterday and she stated, “He laid on the couch and…. through my legs.”

[40] She denied ever feeling anything wet when this happened.

[41] She gestured to the area of her belly when she explained where her clothes were when her daddy was putting his privates between her legs. When asked if she had clothes on her bum, she stated, “Yeah, but daddy pulls sometimes my underwear off.” She said that her daddy has his pants pulled down.

[42] When asked if her daddy said anything to her, she stated that he asked her, “Does it feel good?” AH added, “I am lying to him because it doesn’t. It hurts.” The officer asked her where it hurt and she stated, “In the….not… not in my privates but it’s on the outside.”

[43] Detective Trader asked AH if she ever told her daddy that it hurt. She stated, “No cuz, then he will (inaudible) maybe a little bit more. And he….when I say, “Stop.” He just says, “Maybe a little bit more. I’m like I don’t want a little bit more”. And I’ll start to pull away and then he might get mad.”

[44] Detective Trader returned to questions about what AH was wearing. She again identified the Minnie Mouse shirt and said, “I think my star pants.” She was able to describe in detail the colours of these clothing articles. She told the officer that the pants were in the washer.

[45] Detective Trader returned to questions about AH holding her daddy’s penis. She stated that she held it with both hands and put her hands up to her mouth. “I just kind of hold it and suck on it, and he wants me to look at him and I need to do this to it”, she said. As she did this, she demonstrated a pumping motion.

[46] Detective Trader asked AH if anything ever changed about her daddy’s private part. She stated “Well there’s white stuff out his”. She said that she thought that it’s cream. Detective Trader asked AH if this happened at the beginning or the end. She stated, “Oh, I think it’s at the end?” Detective Trader asked if her daddy said anything to her when this happened. AH stated, “He says, “Stay still.” And the last time I got mad at him because its on my back.” She demonstrated the area where it was as around her waist. She said, “Daddy wiped it off and causing germs and getting sick.”

[47] Detective Trader asked her what she was wearing when this happened and she stated, “I forget.”

[48] AH stated that the only persons that she has told about this were Micheline (the FCS worker) and Detective Trader.

[49] At this point in the video, the officer took a break. AH continued drawing.

[50] Upon resuming, Detective Trader reminded AH that earlier in the statement, she said that dad asked her to suck on his privates. He then asked AH, “Does daddy ever do something like that to you?” AH stated, “And he licks on my private.” Detective Trader asked if he was saying something or nothing when this happened. AH stated, “I think he’s saying something or nothing.” She later added, “Just what I do to him and suck on it.”

[51] At this point in the interview, AH reported, “He touched my….when we were… when we were done, every time when we were done, he….my daddy touches mommy and its probably germs, because mommy said (inaudible). I know daddy’s tried to get me to stick it in mommy’s (inaudible.).”

[52] Detective Trader was not able to get an explanation as to what AH meant by this. She stated that her father was “like hugging” her mother. The officer then asked her again, “But is mommy home when this happens” and AH stated, “Usually once”. She then suggested that this happened when her mommy was upstairs.

[53] AH also stated that “I always want to tell mommy. Then it would just cause a fight I think. And I don’t when them to be in a fight.”

[54] Detective Trader asked AH if her daddy’s hands were ever on her privates. AH stated in the affirmative, “Mmm hmm”. When Detective Trader asked AH to tell him about this, she stated, “Um I forget.” The officer then pursued this line of questioning with AH again and AH stated that he touched her when her pants were off. She then moved her right hand around in the area of her vagina.

[55] Detective Trader took AH back to her earlier evidence about the cream on her back. AH sated that her daddy cleaned it up with a wipe and threw it in the garbage. She complained that, “Sometimes he never washes his hands sometimes.”

[56] Towards the end of the video, there was a break in the statement. When the video came back on, AH told Detective Trader that she was in Grade 1 when this started to happen. Given that AH was in Grade 1 at the time she gave her statement, there was some confusion as to whether it happened the year before. AH settled on the fact that it did not happen before she was in Grade 1. She estimated that it happened approximately ten times.

[57] Apart from her evidence on the section 715.1 voir dire, the Crown did not seek to ask AH any additional questions during her examination-in-chief.

Recall of AH In-Chief

[58] On June 2, 2023 Crown counsel advised that he wished to recall AH. Counsel advised that the desire to recall came out of a witness preparation meeting that he had with AH’s mother, VH. During that time, VH provided some hearsay information as to other things that AH said.

[59] When I turned to defence counsel for his position, he conceded that there was no prejudice in reopening.

[60] During the course of the evidence, AH stated that after her father was charged, her mother and she saw him on at least two occasions.

[61] The first one occurred in the wilderness about an hour from where they lived. AH recalled that there were logs and a waterfall. She stated that her father picked her up and said, “When you go to Court, don’t tell them that you’ve seen me or that I did that to you.”

[62] The second incident occurred at the Best Western in Pembroke. She recalled her father spinning with her on “spinny chairs”, swimming in the pool and hitting a ball into a net. She stated that this happened in the winter.

Cross-examination of AH – General

[63] As I indicated above, AH was cross-examined over three of the four days that she testified, March 1, March 2 and June 2. The cross-examination frequently circled back to previous cross-examination. I have accordingly attempted to organize my summary of the evidence in cross-examination by theme, as opposed to chronologically.

[64] As I set out, there were a number of times when it was clear that AH was yawning, stretching and putting her head down. It was difficult to hold her attention. The frequent circling back exacerbated this problem.

[65] AH stated that she was in Grade 4. Her favourite subjects are math and science. She wants to be in the military when she gets older. She stated that she likes to play with two friends; she likes to draw and paint; she likes to play video games, such as Minecraft; she likes to go sliding at the park with her brother and she lived with her grandparents. She stated that she watched the Disney Movie, Hocus Pocus, the previous evening.

[66] AH recalled living in the house on FL Road where the incidents allegedly happened. It is unnecessary to go through the details of the layout of the house. She had a good memory of the layout of the house.

Cross-Examination About Going Into Her Parents’ Room, Witnessing Domestic Violence and Whether She Ever Saw Her Parents Naked

[67] Defence counsel asked AH if she remembered ever going into her parents’ room. She indicated that she only remembered going in there once. She stated that her parents’ room did not have a lock on it because one of her friends was once over for a playdate and got locked in there. As a result of that, her parents took the lock off their door.

[68] Defence counsel asked AH if she remembered going into her parents’ room to watch movies. AH stated that she was in there once and she watched a little bit of the movie that her parents were watching. The movie was called Pennywise. Her parents were asleep. She was not scared by the movie. She stated that this was the only time she went into her parents’ room to watch movies.

[69] She stated that there were times when her mother and father were fighting. The source of the fighting was the hydro bill that her father did not pay. Because he did not pay, the supply of hydro to the family home was cut off. “I don’t want to talk about that much because they fighted [sic] a lot.”, she said. She then stated that her parents fought every other day. The fighting would consist of yelling at one another and sometimes her dad would hit her mom. “I would be in the room. I would cry. I would hold my brother’s hand and I would carry him”, she said. AH indicated that her parents would swear at each other. Later, they would apologize to one another. She stated that she would follow her mother and make sure that she’s ok because, “Dad would always hit her really hard.”

[70] She reported that one time she saw her Dad and he had a “bad look in his face”. “I walked in and I opened the door and I saw Mommy against the wall. My mom told me to “get out.””, she said. She said that her father had an angry look on his face and her mother looked scared. They had all their clothes on.

[71] She agreed that her mother told her what privates are and explained the names of “girl privates” and “boy privates”. Her mother also told her that you should not touch or be touched there or there will be trouble.

[72] Defence counsel asked her if there was a time when she ever walked into her Mommy and Daddy’s room and saw her parents naked. She said, “Definitely no.” She gave the same answer when she was asked if she saw them naked on the couch.

[73] Defence counsel asked her if it was possible and she simply didn’t remember it. AH stated, “I don’t think so.” In retrospect, I do not understand the point of such a question. If the child does not remember it, of course it is possible. Anything is possible.

[74] AH stated that there was a time when her mom had to sleep with her because of a game involving a wallet where her dad slapped her mother in the face.

[75] AH agreed that this physical violence between her parents made her mad at her Dad. “I hated him a while”, she stated. She agreed that she thought her dad should get in trouble for this but he did not. She agreed that she thought it would be a good thing for her dad to get in trouble. She agreed that she did not tell the police about this.

[76] AH stated that she was only mad at her dad about this. “He was the one who would always hit my mom. My mom would do nothing, not even putting hands on but my dad would always hit her.”, she said.

[77] AH stated that she hated her dad because of this but only for about two weeks. She could not remember when those two weeks were.

[78] She said that she did not think her mother was afraid of her father. “My mom loved him, but I didn’t like him very much”. She then proceeded to discuss an incident about her father throwing away flowers that she had given her mother.

[79] She again stated that her parents would always apologize to each other at the end. “I didn’t think that was right. She should have not talked to him.”, she stated. She again agreed that she was mad that her father never got in trouble for those things.

[80] She stated, “He would always act like a good person when we went to my grandma and grandpa’s. My grandpa hated him because he always acted nice there, but he was lazy and rude at home.”

[81] AH told defence counsel, “I didn’t feel comfortable leaving my brother with my dad.” “He [referring to her father] was always laying on the couch and playing his games. I had to feed my brother and play with him. I felt he was a bad dad.” She stated that her brother was only one year old at the time.

[82] AH stated that her father only worked night shifts. She complained that he did not spend a lot of time with her or her brother, even when he had a day off. He would set up a program or put a game on for them, and then have a nap. “The only part my dad would do is change his diaper”, she stated. “Only when my mom was around did he act responsible” she said. “Otherwise he would lay on the couch all day. I told my mom and she kept it a secret.” AH believed that her mother kept her secret because her parents did not fight about it.

Cross-Examination Regarding Use of Xbox/Playstation and Access to Videos and YouTube

[83] AH stated that although they did not have power in the house, she used the Xbox or Playstation [2] to watch TV. She knew how to use the Xbox on her own. She said that her dad always got mad when she played on the Xbox. She recalled asking her mother on a drive why her dad sometimes got mad when she played with the Xbox and her mother told her that she did not know. AH ultimately chalked her father’s upset over using the Xbox to the fact that he played a game called Minecraft, where the object of the game is to build a world. AH knew from her own experience that the world that one built could easily get deleted. She believed her father did not want his world deleted and that was why he got mad when she used the Xbox.

[84] She agreed that she would watch movies on the Xbox. She believed that they had Netflix and remembered that her brother watched a show called Paw Patrol [3]. She recalled that she liked to watch a show on YouTube called Shoot the Yeagers [4]. This latter show she recalled watching on her mother’s computer. She denied ever watching it on the upstairs tv. She recalled that she rarely watched shows during the day. She almost always went outside and played with her friend.

[85] Defence counsel asked AH if she ever went on the computer and searched the internet. She said that she did not. She stated that Paw Patrol was always the first one and that is what they would watch. She never had to search for that. She agreed that she searched for Shoot the Yeagers.

[86] AH stated that while her brother was sleeping, her father would often play Fortnight. He would continue to play Fortnight even after her brother woke up from his nap. She stated that she did not tell her father that her brother wanted to watch Paw Patrol once he woke up, “Because I was afraid that he would get mad at me.” She agreed that she was afraid of him.

[87] She stated that she never saw people doing inappropriate stuff on Xbox. She stated, “It was only when me and my dad were in the car, he would do it, because my brother wasn’t with me and he didn’t want to play it in front of my brother or my mom.”

[88] She indicated that when her father and she went for a drive, her father would tell her that he loved her more than he loved her brother O. “I wanted O to feel loved. I loved O more than I loved dad.”, she said.

[89] She stated that when they were driving she saw videos of people touching each other. “He would put it on for me and I would stare out the window”, she said. “I didn’t like it but I didn’t want to tell him that to make him get mad at me.”

[90] AH agreed that she sometimes saw people putting their privates in each other’s mouths. “It made me disgusted and I didn’t like any of it.”, she said. She stated that she did not want to say anything because she did not want her dad to be mad at her.

[91] She testified that she sometimes saw boys put their penis between other people’s legs. Their pants would be around their ankles. She disagreed that she heard people breathing a little bit differently than they normally would. She saw cream coming out of the boy’s private parts. “Yes, I didn’t like it.”, she said. She heard the people she watched making weird noises and asking if it “felt good”. She knew that those people were doing bad things to each other and they should get in trouble. She also saw boys with girls’ privates in their mouth.

[92] She disagreed that she heard them say, “Look up at me.” When probed about this by defence counsel, AH stated, “Definitely no”.

[93] AH stated that the video in the car is the only time she remembered seeing people touch other people’s private parts.

[94] On the second day of her cross-examination, defence counsel circled back to this area. She remembered telling the detective that she saw a boy’s private parts between a girl’s legs on the video.

Cross-Examination About Touching

[95] AH acknowledged that she knew that touching people’s private parts would get someone in a lot of trouble.

[96] AH agreed with defence counsel’s suggestion that because her mother had told her that if you touch someone’s privates you would get into trouble, she knew when she told the police about the allegations that it would get CH into trouble.

[97] On Day 2 of the cross-examination (March 2, 2023), AH remembered telling the police that her father touched her privates with his hand. When asked whether she remembered this actually happening and being asked to “think hard for me.”, AH closed her eyes, thought for a moment and said, “No.”

[98] At this point, defence counsel replayed AH’s video statement from 43:05 to 46:00.

[99] After re-watching her statement, AH remembered that this incident happened in her mother’s bedroom on the bed. She repeated that she, her father and her brother were at home. Her mother was at work. It was night time. She recalled her father said “[A], come here.” She said that there was a little window, but it was not light outside. She stated that it was summer time. She recalled it was summer time because she was dressed in a muscle shirt and shorts and she went outside. She recalled that her father’s friend was there [5]. She recalled that her father and Friend talked for a few seconds. After Friend left, she and her father went inside and “it” happened as soon as Friend left.

[100] Defence counsel asked her how she remembered all that. AH stated that “the video kind of told me”. I remembered that Friend was there and all the other stuff came.” I only remember a second of it. I don’t remember all of it.”, she said.

[101] AH could not recall whether this incident happened before or after the video in the car incident.

[102] AH remembered that after her Dad called her downstairs, he started touching her privates. Defence counsel asked her “how that started”. AH took a couple of moments to answer. Defence counsel asked her if she was “thinking” or if she did not want to talk about it. AH said she was “thinking”. After thinking about it for a couple of moments, AH stated that she did not remember.

Cross-Examination About What She Remembered Telling Detective Trader in Her 715.1 Statement

[103] Defence counsel more generally asked AH what she could remember telling Detective Trader. AH could not remember much. She could remember telling the officer about her bedroom. She remembered talking to “the FCS lady.”

[104] Defence counsel proceeded to ask AH more questions about what she remembered telling Detective Trader in her videotaped statement. She agreed that she cannot say that the things that she discussed in the video were true because she did not have a recollection of it. She agreed that she remembered them because of the video.

Cross-Examination About Fellatio

[105] AH agreed that she remembered telling the officer about the allegation of putting her father’s privates in her mouth in the video. She stated that she remembered that this allegation happened in her mom’s bedroom. She could not remember when it happened, or where her brother was. She recalled that her mother was not home and she stated that just her and her father were at home. She believed that this happened at “night time”. She remembered that her mother was working at a doughnut shop and she named the shop where her mother worked.

[106] “He told me to come downstairs because he had something to give me, I think”, she recalled.

[107] She recalled that she was upstairs taking care of O. She believed that her father had put him to bed. When asked why she now remembered where O was, she stated, “I remember that my dad always put O to bed.” Defence counsel asked AH what made her specifically remember that O was at home. AH stated, “Because I remember when he asked me to come downstairs, he had put O down.”

[108] She recalled that he told her to “come here” and she followed. She did not remember what happened. She remembered the first part but not others. She did not remember other times when her father asked her to put his privates in her mouth. Defence counsel suggested that she “think really hard about it.” She then said, “I don’t remember any, sorry.”

[109] On Day 2 of her cross-examination, defence counsel circled back to this area. He asked AH about her evidence that her father told her to look at him. AH said, “I remember that for sure”. Defence counsel asked if she remembered at what point he said that. AH said, “No, but at some point, he does.” Defence counsel probed, “For sure?” AH stated in the affirmative, “Mmm hmm. When he would say look up at me it would make me feel uncomfortable.”

[110] I note that in the course of setting up a video replay for AH about another area, AH told defence counsel that she did not want to see the part of the video statement where she described the fellatio allegations. I infer from this that these allegations are difficult for AH to recount.

Cross-Examination About Cunnilingus

[111] AH did not remember telling the police that her father put her privates in his mouth and was sucking on them. She also did not remember this happening. Defence counsel suggested that she “think really hard about it.” After thinking a moment, AH stated, “No.”

[112] On Day 2 of the cross-examination (March 2, 2023), Defence counsel asked AH if she remembered her Dad licking her privates. She stated, “I only remember a second of it, but not all of it.”

[113] Defence counsel then replayed the video from 47:54 to 49:22 (page 43 to 44). In this excerpt, AH discussed her daddy touching her private parts “where her pee comes from”.

[114] After seeing the evidence, AH remembered telling the Detective about it. She did not remember the actual incident. She did not remember this happening “in real life”. Defence counsel asked AH to “think really hard about it”. AH thought about it for a few minutes, I asked AH if she was able to remember and she indicated, “No.”

Cross-Examination About CH Putting His Privates Between Her Legs

[115] On Day 2 of the cross-examination (March 2, 2023), Defence counsel asked AH about the allegations she made about her father putting his privates between her legs. AH remembered this. She remembered it happened on the couch. She remembered it happened in the afternoon. She remembered that she was present with her father. She could not remember where her brother was. Her mother was at work.

[116] After discussing some of the other allegations, defence counsel circled back to this area.

[117] Defence counsel asked AH about her evidence that she wanted to cuddle her father. He suggested to AH that it did not make sense for her to want to cuddle someone that she did not like. AH agreed.

[118] At this point in the evidence, AH asked for a break. During the break I expressed concern that we were losing the witness. It was clear that she was frequently yawning during her evidence, she slouched and seemed pre-occupied.

[119] After the break, defence counsel asked AH what her father was doing before she asked him to cuddle. She did not remember. She also did not remember what room that this happened in, what else she did that day, whether she went to school, what time of day this happened in, whether O was at home, if anyone else came over, whether she played with friends. She did remember that this happened on the couch in the living room by the railing.

[120] She could not remember what happened after her father asked her to cuddle.

[121] She could not remember telling the detective what she was wearing.

[122] Defence counsel then replayed the video between 15:36 and 17:23.

[123] In this excerpt, AH told the officer about her Minnie Mouse Shirt, her underwear, the positioning on the couch, and her dad’s privates being “out” between her legs.

[124] Defence counsel then went through this evidence again with AH. He prefaced his questions by telling AH that he wanted her to tell us what actually happened, not what she told the officer in the video.

[125] AH again recounted this incident. She testified that she was only wearing underwear. She does not remember wearing pants. She recalled that her underwear were not on the whole time. She recalled he put his privates between her legs. She recalled wearing her Minnie Mouse shirt.

[126] Defence counsel asked AH how this incident started. AH again repeated that she asked her father if she could cuddle. She cuddled with him for a minute and then he started putting his privates between her legs.

[127] She could not remember if he said anything while his privates were between her legs, or how long the incident lasted for. Defence counsel then asked AH to tell him everything she remembered about the incident. After telling defence counsel she was thinking about it, she said, “I don’t remember”.

[128] Defence counsel then asked AH if she remembered if her dad was moving while he put his privates between her legs, how her underwear was removed, whether it was light outside or dark outside, whether she was watching anything on tv, whether he said anything to her afterward, how she was sitting on the couch.

[129] Other than remembering that it was “the afternoonish kind of.”, AH did not remember the other details.

[130] She remembered telling the detective about it. Defence counsel then asked, “So you don’t actually remember this happening, do you?” AH replied, “Like kind of remember it but not all of it.”. After thinking for a while, she agreed that there was nothing else she remembered other than what she already told defence counsel.

[131] Defence counsel then asked AH about her evidence in-chief that it felt good. AH remembered telling the detective about it and she remembered her father actually saying that to her. She could not recount what point her father said that to her.

Ejaculation

[132] In Day 2 of cross-examination (March 3, 2023), Defence counsel asked AH about cream coming out of her father’s privates. AH did not remember this happening. She did not remember discussing it on the video.

[133] Defence counsel replayed the video statement between 40:21 and 41:23.

[134] AH did not remember telling Detective Trader about it. She also stated that she can’t remember it “in real life”.

[135] AH remembered telling Detective Trader that CH’s breathing was different. She also remembered this allegation. “I remember like his breathing kind of sounded weird”, she stated. She stated that she could not remember when this happened. She stated that she remembered it happened on the day that they were on the couch. She could not remember if his breathing was weird when they were cuddling or when his privates were between her legs.

Allegations of Post Charge Meetings

[136] When AH testified on June 2 in recall, AH agreed that her mother told her that she was in Court that day to tell the Court about meeting her father. AH agreed that she did not remember a lot of the conversations. She only remembered the conversations that her mother told her about.

[137] As the cross-examination progressed, however, AH stated that she remembered the conversations “on her own” and not because her mother told her. She stated that her mother telling what she was coming to Court to talk about helped her to remember.

Re-Examination

[138] AH recalled not having hydro at home for a few months and using an extension cord for power. She could not remember if there was hydro at the time of the couch incident.

[139] AH recalled having star pants and she gave a similar description of them from what she gave in her 715.1 video. She stated that she no longer wore them because she grew out of them. She recalled that she wore them when she was four and five.

[140] With respect to the video in the car incident, AH recalled that the phone was not at the very front of the car by the windshield. She stated that her father set it up somewhere else.

Evidence of CH

Examination-In-Chief

[141] CH stated that at the time these allegations arose, he was in a relationship with VH and they had a son and daughter together. He recalled that they were both working. He said they were “in love” and they “thought we had things figured out. We were living our lives and being happy.”

[142] CH recalled that they moved around a lot. When AH was born, they lived with his parents on a farm. When AH was an infant, they moved to a few other places, before settling on a house on FL Road.

[143] CH stated that the moving around was stressful and money was an issue. He felt that the relationship was “on a decline”. He stated that he was not paying attention to bills or car payments. He did not pay for the electricity, and had to hook up to the neighbour’s power for their fridge and television.

[144] He was working a lot and he was not around as much as he should have been. At this juncture, his relationship with VH was like “passing ships”. They both worked. He watched AH at night. She watched the kids during the day. They did not communicate well.

[145] He agreed that they argued frequently about money. He confirmed that VH complained that he did not “step up to the plate.” These arguments would lead to physical altercations. Most of the time, the argument would be limited to yelling back and forth. Occasionally, VH would “push my buttons” and he would “go full on and smack her, hold her down or push her around.” He once grabbed VH and held her in a choke hold. AH was present and she was screaming and yelling and telling him to stop hurting her mother. This occurred in 2018. He was charged and punished for it.

[146] CH testified that AH was present for most of the physical altercations that he had with VH. The cursing and swearing occurred in front of her (and O) as well. When asked, “Who was at fault?”, CH stated, “I was definitely at fault.”

[147] Despite the violence, CH reported that he remained intimate with VH. CH stated that the doors in the house did not work; there were holes in them and there was no way to lock them. He recalled that when he was being intimate with VH, AH walked in. CH told AH to go to bed. She ran away and cried.

[148] He recalled another incident when his activities with VH in the bedroom woke AH. She came in as he was slapping VH on the buttocks. AH thought that he was hurting VH and she was crying in the room. VH got up and tucked her back into bed.

[149] CH recalled that VH would perform fellatio on him and they would also have intercourse “from behind”. He believed that AH saw these things occurring. He also believed that the noise the couple made in the course of sex sounded like they were fighting which drew AH’s attention to their bedroom.

[150] With respect to the allegation that he showed AH pornography in the car, CH stated, “That did not happen.”

[151] He gave evidence, however, that there was pornography in the house and AH may have seen it. He stated that VH was using the browser on his PS4 to look for videos and noticed that his history of videos he had seen was still present. That history included pornography. He believed that this happened during the summer of 2019.

[152] He testified that after he was charged, he made plans with VH to see her. They went on drives and had picnics. AH was present. He denied ever telling AH what she should or should not say in Court.

[153] With respect to the things that AH reported in her videotaped statement, CH stated that he had no knowledge.

[154] He agreed that the child was correct when she told the police that he was a neglectful parent. “I was addicted. I was on another playing field. I wasn’t taking care of my kids as I should have been. I was not a good father up to the time leading up to my arrest.”, he said.

[155] He denied ever sexually assaulting AH, showing AH pornography or asking AH to perform sexual acts on him.

Cross-Examination of CH

[156] Crown counsel asked CH why his phone’s history of internet searches et cetera was not on his phone when he was arrested, and it was seized. CH stated that this was a “mystery to him how this happened.”

[157] CH agreed that he had a number of visits with VH from just after he was charged until the following summer. These visits involved social outings and overnights at hotels.

[158] When asked why the contact occurred, CH blamed VH. He stated that she had an issue with him “moving on and seeing others”. He reported that she got mad when he tried to date someone else and came to his workplace to confront him about it.

[159] He agreed that from his perspective, the visits were family visits designed to maintain a relationship with his children. He agreed that they chose the Best Western hotel because it had a swimming pool. He agreed that they were cautious and they did not want the police to see them. They did, however, go out to public places like Boston Pizza for dinners.

[160] He opined that he did not have much unsupervised time with AH.

[161] He agreed with AH’s description of their visit to the park with the waterfall. It was about a half hour to a 45 minute drive away from Pembroke.

[162] He agreed that they also went to local parks in the community. They played in places with play structures. He agreed that during these occasions, he would not be alone with AH, but there were times that no one was within earshot of what he might have been saying to AH. He denied that any of his conversations with AH were about going to Court.

[163] He agreed that AH did ask why he could not come home. “We told her that we were getting it resolved.”, he stated. He recalled that she asked about this twice. His explanation to AH was that “we are figuring that out right now.”

[164] He confirmed his view that AH witnessing him have sex with his wife was the springboard for her complaints. He also confirmed the view that VH was feeding AH information in order to have him charged.

[165] In his view, AH’s demeanour in Court was “distressed”. When asked how she exhibited this, he stated that her answers were short. She shrugged her shoulders. He opined that he knew her to be more verbal. He agreed that her demeanour was consistent with being somewhere she does not want to be. He also agreed that she did not appear frightened in Court. He allowed that it has now been over two years since he saw her.

[166] CH agreed that AH testified that she did not see him engage in sex acts with VH. He agreed that the only evidence of this was his theory. He agreed that he did not know what was or was not seen on the PS4 by AH.

[167] CH acknowledged that at the time, he had a drug addiction. “I haven’t touched it in three years.”, he stated. He agreed that spending his money on drugs (and alcohol) was the reason that he did not have the money to pay the household bills.

Submissions of Defence

[168] With respect to the first and second branches of the W.(D.) formulation, defence counsel argued that CH gave forceful denials to the Crown’s allegations that were unshaken. He was candid and he discussed matters that were against his best interests. He did not seek to avoid or minimize his involvement or cast himself in a good light.

[169] With respect to the third branch, he stated that there are significant frailties with AH’s evidence to the point that I cannot rely on it.

[170] On this last point, citing R. v. F.(C.C.) [1997] 1 S.C.R. 139 at paragraph 44, defence counsel suggested that some corroboration of AH’s statement was necessary and that I should instruct myself as to the dangers of convicting CH based on the video statement alone.

[171] Defence counsel pointed to the fact that he had “very limited room for cross-examination.” AH’s evidence was flawed by the fact that she had a difficult time providing the Court with any real viva voce testimony as to what the allegations were. He argued that she could not really independently recall the allegations and she did not really recall giving the statement to Detective Trader, or whether it was true.

[172] Defence counsel pointed to an inconsistency with respect to what AH reported that she was wearing. In the video, she recalled wearing star pants. In Court, she could not recall that she was wearing star pants. He argued that because of the limited ability to cross-examine, this normally “peripheral detail” became more important and less peripheral.

[173] With respect to her allegations of fellatio and cunnilingus, defence counsel noted that AH was unable to provide any details in Court with respect to the core allegations.

[174] She was unable to provide any evidence in Court with respect to the allegations of touching. Her evidence, he argued, was untested and untestable.

[175] He stated that her desire to cuddle with her father was inconsistent with the allegations, suggesting essentially that if the allegations were true, she would be expected to demonstrate more avoidant behaviour towards him.

[176] Defence counsel argued that she may have witnessed or heard things through watching pornographic videos or watching her parents have sex. These, he argued were innocent explanations for her complaints, which should not be discounted.

Submissions of the Crown

[177] Crown counsel argued that AH’s videotaped statement should receive considerable weight given that it was taken within a day of making her complaint and that in the statement, she indicated that some of the allegations occurred the day before.

[178] Crown counsel submitted that Detective Trader did not have “an easy time” of getting AH to disclose what happened to her either. She is a reluctant witness, which is understandable in the circumstances. He noted that Detective Trader had to do other things such as invite AH to colour with him and engage her in peripheral conversation in order to elicit the information that she gave. Given how her story in the videotaped statement unfolded, therefore, Crown counsel maintained that I should find AH credible.

[179] Crown counsel submitted that AH’s evidence on the video was honest, appropriate and reliable. He pointed to the fact that she told the officer that when her father asked her if the touching felt good, she lied and told him that it did. In a similar vein, her evidence that he asked her to look in his eyes while she had his penis in her mouth was consistent with the veracity of her evidence.

[180] Crown counsel argued that the discussion of the star pants was peripheral. He essentially suggested that the difference between AH’s evidence in the statement and what she said in Court was more of an omission than an inconsistency. He submitted that although AH said two different things about what she was wearing, they are not necessarily mutually exclusive answers given her clear evidence that she was not wearing pants at all when CH was between her legs.

[181] Crown counsel submitted that the entire cross-examination did not go well for defence counsel and because it was not successful, defence counsel was submitting that AH’s statement should not be reliable. “She’s not responsible for the questions asked or the time that defence counsel took to get the answers”, the Crown contended.

[182] Crown counsel also pointed to the significant period of time it took in getting the matter to trial. The statement was taken in November 2019 and AH testified in February 2023. This, he argued was a significant passage of time in the life of AH and it should therefore be no surprise that she no longer remembered some of the details that she discussed in her statement.

[183] Crown counsel argued that the animus that AH has towards CH should not affect her credibility. He submitted that this was a natural reaction of someone who has had three years to think about what her father had done to her.

[184] On this score, he also noted that there was no rage, anger or fear expressed by AH when she was examined by the detective. She was matter-of-fact and she did not understand the nature of the allegations when she initially made them.

[185] Crown counsel submitted that AH never resiled from any of the allegations. There was a lot of evidence about what she remembered telling the officer and what she remembered when she was testifying in Court, but at no point did she ever say that any of the allegations simply did not happen.

[186] With respect to the evidence of CH, Crown counsel argued that his admissions were not as revelatory as defence counsel makes them out to be. He stated that the accused admitted minor things that supported credibility and reliability of AH’s statement.

[187] Relying on R. v. J.J.R.D. he submitted that I should reject CH’s evidence based on a considered and reasoned acceptance of the evidence of AH.

Analysis

The Law With Respect to the Assessment of Credibility and the Assessment of Evidence

[188] This case involves the assessment of reliability and credibility and the application of the principles in R. v. W.(D.).

[189] CH is at all times presumed innocent until such time as the Crown proves his guilt beyond a reasonable doubt.

[190] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to CH. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

[191] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed triers of fact to assess evidence in this way:

a) First, if you believe the evidence of the accused, obviously you must acquit.

b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[192] In R. v. Kruk, 2024 SCC 7, at paragraphs 59 through 62, the Supreme Court of Canada affirmed W.(D.) and had this to say about the linkage between the presumption of innocence, proof beyond a reasonable doubt and a trial judge’s task in assessing credibility:

The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence — a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119) — requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered (Osolin). Closely related to the presumption of innocence is the accused’s right to silence as enshrined in s. 11(c) of the Charter, which safeguards human dignity and privacy against processes or reasoning that would compel an accused person to incriminate themselves with their own words (R. v. Noble, [1997] 1 S.C.R. 874, at paras. 69-78).

Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72). Likewise, it is improper to discount the credibility of accused persons on the basis that, because they face criminal penalties, they will say anything to protect themselves. Though considering the possibility that the accused may have a motive to lie will not necessarily offend this rule, courts should be wary of going further and drawing the “impermissible assumption” that they will do so in all cases (R. v. Laboucan, [2010] 1 S.C.R. 397, at para. 14). Such reasoning is premised on a supposition of guilt and therefore offends the presumption of innocence (para. 12).

The presumption of innocence also restricts how credibility is assessed in cases of conflicting testimony between defence and Crown witnesses. The analysis of testimony must never be treated as a contest of credibility, and triers of fact need not accept the defence’s evidence or version of events in order to acquit (R. v. Van, [2009] 1 S.C.R. 716, at para. 23; R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 757). The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., [2008] 2 S.C.R. 152, at para. 13).

Reasonable doubt applies to credibility assessments such that if the evidence the Crown adduced does not rise to the level required of a criminal conviction, an accused cannot be found guilty simply because they are disbelieved (see W.(D.)). Some elements of the totality of the evidence may give rise to a reasonable doubt, even where much — or all — of the accused’s evidence is disbelieved. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Moreover, where the trier of fact does not know whether to believe the accused’s testimony, or does not know who to believe, the accused is entitled to an acquittal (J.H.S., at paras. 9-13; R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S.(W.D.), [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, [2000] 2 S.C.R. 745, at para. 19). Finally, where the Crown relies on circumstantial evidence to establish guilt, the trier of fact may only convict if guilt is the only reasonable inference from the evidence (R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 30).

[193] The law is clear that I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a Court can accept all, some, or none of a witness’ testimony.

[194] In considering reliability and credibility, the Supreme Court has also recently made it clear that, so long as a trial court does not engage in prohibited reasoning based on myths and stereotypes, it is not only permissible, but a trial judge is expected and required to rely on common sense and experience in determining issues of credibility and reliability: R. v. Kruk, supra, at paragraphs 72 and 73.

[195] Kruk also confirms the distinction between credibility and reliability. A witness who is credible, is not necessarily reliable. A witness may be sincere and credible, but their evidence may also demonstrate that their recollections are not reliable. Not every inconsistency, however, gives rise to the conclusion that a witness is unreliable. Some inconsistencies are important; others less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern: R. v. Stewart, [1994] O.J. No. 811 (Ont. C.A.) at paragraph 27.

[196] Of particular interest in this case is the Supreme Court’s discussion of how trial judges assess credibility and reliability in sexual assault cases. In Kruk, supra, at paragraph 81, Justice Martin stated that:

Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [4] With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, at para. 28; R. v. G.F., 2021 SCC 20, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.

Do I Believe the Accused?

[197] No.

[198] I accept that the accused admitted a number of things that were seemingly against his interest, including:

a) at the point in his life when these allegations arose, he was addicted to cocaine and alcohol and he was working a lot;

b) he did not pay the hydro bill which resulted in the hydro to the family home being cut off. An extension cord had to be run from the neighbour’s house to keep the essential appliances working;

c) he was violent toward VH;

d) he was a neglectful parent;

e) he had pornography on his Xbox/PS4; and

f) he saw AH a number of times after he was charged.

[199] Defence counsel contended that these admissions should boost his credibility to the extent that I might also believe his denials that he sexually assaulted AH in the manner she described.

[200] I do not agree. Some of these admissions were part of the narrative of the case. Others were offered as an excuse for uncontradicted evidence. His admission that he was addicted to cocaine and alcohol at the time assists the Court in explaining why the hydro bill was unpaid and the hydro cut off.

[201] Other admissions were not really admissions at all – they were essentially self-serving statements proffered to enhance his theory of the case that the allegations did not happen because:

a) AH witnessed him being violent toward VH;

b) AH witnessed him and VH engaging in sex, including rough sex, sex from behind, and performing fellatio on him;

c) AH innocently accessed pornography that he had carelessly stored on his devices, in which she saw the kind of activity that she imagined or fabricated that he performed on her or had her perform on him; and

d) AH had an animus against him because he was violent toward VH, neglectful to her and O, and he did not pay the hydro bill.

[202] In discussing this area, I need to be perfectly clear that this is not a case where I am expecting the accused to provide any explanation for the acts complained of by AH. As I indicated above, he is presumed innocent until the Crown has discharged their burden of proving him guilty beyond a reasonable doubt. He is not required to say anything. I am simply assessing the strength of the explanation that he did give.

[203] I conclude that I do not believe him.

[204] As I will discuss in further detail below, I also disbelieve CH based on a considered and reasoned acceptance of the evidence of AH.

Even Though I Do Not Believe the Accused, Does His Evidence Leave Me In Doubt?

[205] No.

[206] There is a seductive appeal to CH’s theory of the case. If I followed it, it would allow me to find a reasonable basis for acquitting CH in the face of very compelling evidence from AH.

[207] However, an examination of CH’s theory of the case reveals that it is nothing but self-serving speculation and he is inviting me to engage in what is essentially ungrounded conjecture.

[208] In Kruk at paragraph 68, Justice Martin described this conundrum this way:

Speculation as an error of law arises where a trial judge has found that certain evidence “creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt” (Wild v. The Queen, [1971] S.C.R. 101, at p. 111). In other words, it is an error of law to fail to distinguish between a rational conclusion as to reasonable doubt based on evidence, and an unsupported conclusion based on conjecture (see Wild; Rousseau v. The Queen, [1985] 2 S.C.R. 38; R. v. B.(G.), [1990] 2 S.C.R. 57; R. v. Clark, 2015 BCCA 488, 407 D.L.R. (4th) 610, at para. 43, aff’d 2017 SCC 3, [2017] 1 S.C.R. 86). The term “speculation” as invoked in the courts below does not refer to this legal error, but rather is used, as it is in common parlance, to signify drawing any inferences that are allegedly unsupported by evidence. [2] To the extent that, in recognizing the proposed rule, the courts below rely on the error of law of speculation — which most often arises where trial judges err in acquitting the accused based on speculative alternative explanations — they are stretching the case law beyond what it logically bears.

[209] As I will set out below, I also reject CH’s evidence based on my considered and reasoned acceptance of the evidence of AH.

[210] His evidence does not leave me in a state of reasonable doubt.

On the Basis of the Evidence I do Accept, Am I Satisfied Beyond a Reasonable Doubt as to the Guilt of CH?

The Law With Respect to “Ultimate Reliability” of Section 715 Statements

[211] Defence counsel invited me to find that AH’s section 715.1 statement is ultimately unreliable for essentially three reasons:

a) there is no corroboration;

b) her inability to remember is fatal to his ability to cross-examine her, rendering her statement “untestable”. An untestable statement cannot be ultimately reliable; and

c) she does not have a present recollection of some of the incidents or the details of the incidents.

Corroboration

[212] This is a two witness case. No witnesses were offered to corroborate AH’s version of events. The Crown also admitted that a Sexual Assault Evidence Kit was performed and there was no evidence of penetrative sexual assault from that kit.

[213] In the seminal case dealing with the admissibility of section 715.1 statements, R. v. F.(C.C.), supra, Justice Cory stated at paragraph 44:

In Meddoui, it was recommended that in such circumstances, the trier of fact should be given a special warning (similar to the one given in Vetrovec v. The Queen, [1982] 1 S.C.R. 811) of the dangers of convicting based on the videotape alone. In my view, this was sage advice that should be followed.

[214] Caution must be exercised. The spectre of wrongful conviction is always a grave concern.

[215] However, having found that the statement is admissible, I must now consider the weight that it should be given. That is what the issue of “ultimate reliability” is all about.

[216] The requirement of corroboration was banned in the early 1980s: see section 274 of the Criminal Code.

[217] As Justice Rothstein stated in F.H. v. McDougall, 2008 SCC 53 at paragraph 80:

Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it…. However, it is not a legal requirement and indeed may not be available, especially where the alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private.

[218] See also R. v. R.G.B. 2012 MBCA 5 and R. v. S.M. 2024 NSCA 49.

[219] Thus, while I must be very careful in relying on the 715.1 statement, I cannot reject it out of hand simply because it, or aspects of it, are not corroborated by other evidence.

Inability to Cross-Examine

[220] AH was extensively cross-examined in this case. I take issue with defence’s submission that he was unable to cross-examine her. As I will set out below, and as I noted at one point during the trial itself, there were some aspects of AH’s evidence on which he was making progress in cross-examination.

[221] I therefore reject, out of hand, the suggestion that he was unable to cross-examine AH about the allegations. In my view he is conflating the right to cross-examination with the right to a successful and effective cross-examination. That is not the law.

[222] At paragraph 8 of these reasons, I set out the specific periods of time that AH was subject to cross-examination. I also made it clear that she had difficulty maintaining her attention and we finished the first day early. This was also clearly evident as we neared the end of her second day of evidence.

[223] To be sure, cross-examination of a child witness is particularly difficult – perhaps one of the most difficult tasks a lawyer will ever engage in. In this case, it was clear to me that there were parts of the questioning by counsel where AH was clearly confused or simply did not understand the question.

[224] Where an adult is testifying, the usual approach is to mine the examination In-Chief and compare it to previous accounts in an attempt to establish inconsistencies. Such inconsistencies then may give rise to the argument that the witness is not credible, reliable or both.

[225] When a child is testifying, the Court must recognize, as Justice Fairburn (as she then was) indicated in R. v. P.S. (2019) ONCA 637 at paragraph 25, that “Children do not perceive the world in the same way as adults. This is understandable. Children do not have the advantage of the life education that age brings.”

[226] Thus, the nuances between what the child said when she gave the video, what she said on the first day of cross-examination, and what she said on the second day of cross-examination, and whether it would be “helpful” to ask further questions, can be completely lost on the child witness, particularly one like AH who was testifying at age nine about events that took place when she was five.

[227] As this trial unfolded, particularly as we got closer to the end of the second and third day of the cross-examination, I have no doubt that AH was becoming more and more exhausted by the continued questioning, was having difficulty discussing certain aspects of it, did not understand what she was being asked to answer and may have found it simply easier to either agree with defence counsel or indicate that she did not remember: see R. v. Solvio 2022 SKCA 117 at paragraphs 48 to 51.

Assessment of AH’s Evidence

The Allegation that CH Put His Private Parts Between Her Legs and Touched her Private Parts

[228] The 715.1 video revealed the following:

a) CH put his private parts between her legs and he touched her private parts;

b) when asked what she meant by his private parts, she stated his penis;

c) this happened the day before she gave her statement;

d) this happened on the couch in the house they were living in;

e) this happened after she wanted to cuddle with CH.

f) CH was wearing a brand new sweater that he got from his workplace;

g) she was wearing her Minnie Mouse shirt, underwear and her star pants;

h) CH asked her if it felt good. She lied to him and told him that it did. She did not tell him the truth because he would say “just a little bit more” or, if she tried to pull away, he might get mad;

i) when it happened, CH was laying on his back. AH had her back up against AH’s tummy and his chest;

j) AH was hurting on the outside and on the inside when this happened, but later she said that it just hurt on the outside;

k) when AH referred to her “private parts” she referred to her vagina;

l) CH touched her with his private parts a lot of times;

m) sometimes CH pulled AH’s underwear off;

n) she did not feel anything wet when this happened;

o) her clothes were in the area of her belly when this happened.

[229] The cross-examination revealed the following:

a) she remembered this incident.

b) it happened in the afternoon but later she said that she did not remember what time of day this took place. Subsequently, she did not remember if it was light or dark outside. Lastly, she repeated that it was “afternoonish kind of”.

c) it happened on the couch;

d) she did not know where her brother was;

e) her mother was at work;

f) it happened after she asked CH to cuddle;

g) she did not remember whether she went to school that day;

h) after cuddling with her for a minute, CH started putting his privates between her legs.

i) she does not remember if he said anything during or after the incident, but later, when specifically asked, she remembered him asking her if it felt good;

j) she did not remember if she was watching anything on TV;

k) she did not remember if CH moved while he put his privates between her legs;

l) she did not remember how her underwear was removed – just that she did not have underwear on; and

m) in general, she admitted that she kind of remembered the incident but not all of it.

[230] Defence counsel attempted to make much out of AH’s failure to remember that she told the police that she was wearing her Minnie Mouse T-shirt and her star pants. In my view, these are peripheral details. It is not surprising that she does not remember these details given the passage of time between her statement and her evidence in Court.

[231] In R. v. B.(G.), [1990] 2 S.C.R. 57, Justice Wilson stated, “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 R. v. W.(R.), [1992] 2 S.C.R. 122, Justice McLachlin (as she then was) noted that the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[232] Defence counsel also suggested that her evidence that she asked her father to cuddle was inconsistent with her other evidence that she hated him and that she was disgusted by some of the incidents. In other words, defence counsel suggested that if the allegations were true, AH would have avoided CH rather than ask him to cuddle.

[233] This is nonsense.

[234] Although AH stated that she hated CH, her hatred was not permanent. She answered that question as only a child of five could. She said she hated him “for about two weeks”. It was clear, in fact, that she loved CH. At times, she did not like the way he treated her, her brother or her mother. She was, at times, afraid of him. But she was a five-year-old girl. The fact that a five-year-old girl wants to cuddle her father, whom, in spite of what she believes that he has done to her, she loves, is neither surprising or unusual.

[235] This issue was considered by the Supreme Court of Canada in R. v. A.R.J.D., 2018 SCC 6, which agreed with the majority of the Alberta Court of Appeal 2017 ABCA 237. Madam Justices Paperny and Schutz stated at paragraphs 56 to 64:

No distinction can or ought to be drawn between impermissibly expecting a complainant to immediately raise a hue and cry, or to immediately disclose, and impermissibly expecting a child victim of parental abuse, or any victim of sexual assault, to avoid their abuser.

“Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assault for generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and would thereafter not associate with the perpetrator. In recent years many of the stereotypes . . . have been set aside”: R v Caesar, 2015 NWTCA 4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216. To the extent that such stereotypes or myths are relied upon in assessing a complainant’s credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327.

In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons. This record speaks to those reasons—the complainant resided in the home of the alleged perpetrator and in her words, it “changes everything . . . [w]hen people know”. While it might appear logical to suggest that a victim of sexual assault will choose to run away or distance themselves from an assailant, relying on failure to do so, particularly when dealing with a child complainant, is simply incorrect.

In substance, the trial judge’s requirement that this child display corroborative evidence through expected confirmatory behaviour was akin to a throw-back to the long abolished and wholly discredited “rule” about warning juries of the danger of convicting in child sexual assault cases without corroboration of the victim’s testimony. Not only did this baseline of reasoning erroneously place an unfair burden on the complainant to provide such evidence, but the expectation was inextricably rooted in a stereotypical notion of how a typical child, and sexual abuse victim, ought to behave. Adding to this incurable defect was the trial judge’s failure to take into account the whole of the complainant’s testimony, through which she provided at least some evidence of how the alleged abuse had affected her—that she became a “closed person”.

“As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634”: R v Mills, [1999] 3 SCR 668 at para 119. The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any less so in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely add judicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser’s acquittal.

Regrettably, the trial judge engaged in a type of stereotypical thinking. To say that a particular child’s behaviour is incongruous with the stereotypical child victim, and to assess that child’s credibility negatively because of that finding, is a mis-direction and is wrong in law.

When, as in this case, the probative nature of the evidence is directly tied to inferences drawn from an expectation or assumption that a sexual assault complainant will predictably and reliably avoid her abuser, the legal rule against credibility assessments based on stereotypes is breached. As said by the Supreme Court of Canada more than 25 years ago, in R v Seaboyer, [1991] 2 S.C.R. 577: “. . . evidence of sexual conduct and reputation in itself cannot be regarded as logically probative of either the complainant’s credibility or consent . . . [myths] have no place in a rational and just system of law”. The same is true for a lack of evidence of avoidance, given that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R v D(D), 2000 SCC 43, at para 65.

R v TEM, 1996 ABCA 312 was issued shortly after the court’s exposure to the then new “recent complainant” legislation. Since TEM, more stereotypes have been identified and eradicated, the present case being but one example of how deeply ingrained these myths and stereotypes can be. And, as set out in R v D(D) at paras 63 and 65, the law now is that an assumption or expectation about the post-abuse conduct of a victim, “standing alone, will never give rise to an adverse inference against the credibility of the complainant”. With respect, it was exactly this type of adverse inference that was drawn in this matter when the trial judge found a lack of avoidance by this child complainant.

Since there is “no inviolable rule on how people who are victims of trauma like a sexual assault will behave”, especially children, a trial judge’s perceived lack of avoidant behaviour or lack of change in behaviour, must never be used to draw an adverse inference about a complainant’s credibility. It is impermissible to assess a complainant’s credibility by looking at consistencies or inconsistencies grounded in a search for “expected” post-sexual assault behaviour. To interpret TEM’s dicta as condoning the use of generalizations, stereotypes, myths or expectations about how victims of actual sexual assault ought to behave after victimization as being proper bases for assessing the credibility of a particular sexual assault complainant at trial, especially a child, is overbroad and does not reflect the law.

[236] In my view, AH was unshaken with respect to the core elements of this incident. Her evidence with respect to certain aspects – including the fact that CH asked if it felt good, that she lied and that she did not pull away because he would ask for a little bit more or get mad – were particularly compelling.

[237] I find beyond a reasonable doubt that CH put his penis between her legs and touched the exterior of AH’s vagina. I find this happened on the couch of her residence a few days before she gave her statement to Detective Trader.

[238] I find that this happened on more than one occasion. This was evident from AH’s evidence about her experience with CH asking for a little bit more when she tried to pull away and her reluctance to be truthful when he asked her if it felt good. I cannot find, however, how many times this happened.

The Allegation that CH had AH Fellate Him and Masturbate Him

[239] The 715.1 video revealed the following:

a) AH held CH’s penis and sucked on it with her mouth;

b) CH told AH to look up at him while she was doing this;

c) When she did this, CH’s breathing sounded different;

d) AH held CH’s penis with both her hands and put it to her mouth. She demonstrated a pumping motion on the video.

[240] The cross-examination revealed the following:

a) she remembered telling the officer about this on the video;

b) she remembered that this incident happened in her mom’s bedroom;

c) she did not remember when it happened;

d) she did not remember where her brother was;

e) her mother was not home;

f) this happened at night time;

g) it happened after CH told her to “come here”.

h) she did not remember it happening more than once;

i) she distinctly remembered CH telling her to look up at him when she was fellating him. She said she remembered this “for sure” and she recalled that it made her feel uncomfortable;

j) AH did not want to review her evidence about this subject matter again; indeed, she told defence counsel that she did not want to see that aspect of her videotaped statement when he was setting up another excerpt to play.

[241] In my view, AH was unshaken in her core allegations. I find that CH instructed AH to fellate him and masturbate him.

[242] I find her evidence that he told her to “look up at him” and it made her uncomfortable, particularly compelling. I infer from her asking defence counsel not to play the excerpt of her 715.1 video where she discussed this that she found this allegation particularly disturbing. That was also very compelling.

[243] I find that this took place on one occasion. AH could not remember if it happened more than once.

The Allegation that CH Performed Cunnilingus on AH

[244] The section 715.1 video revealed a bald allegation that CH performed cunnilingus on AH. She said he licks on her private.

[245] In cross-examination, AH could not remember it, or “could only remember a second of it.” Only after she saw the video, did she testify that she remembered anything about it.

[246] In light of the uncertainty about this and lack of any apparent detail around when, where or how this incident came about, I find that I have a doubt that this incident occurred.

The Allegation that CH Touched AH’s Vagina

[247] The section 715.1 video revealed the allegation that CH touched AH’s vagina. She demonstrated a circular motion with her hand on the video.

[248] AH did not remember this incident until the video was played for her in cross-examination. The video seemed to jog her memory and she remembered the following details:

a) this incident took place on her mother’s bed;

b) her mother was at work;

c) it happened at night time;

d) it happened after Friend was there;

e) it happened in the summer time;

f) she was dressed in a muscle shirt and shorts;

g) it happened after CH called her to come downstairs; and

h) she could not remember how the incident started.

[249] I also have a doubt about this incident. None of the details that AH testified to in cross-examination were elicited by Detective Trader. They all came out anew when she testified in cross-examination.

Ejaculation

[250] The 715.1 video revealed the following:

a) AH described white stuff coming out of his penis which she described as cream;

b) AH said that this happened at the end of an incident;

c) AH said that when this happened, CH told her to stay still;

d) AH said that the last time that this happened she got mad because he got it on her back around her waist. She complained about it causing germs and getting sick; and

e) CH cleaned it up with a wipe and threw it in the garbage; and

f) she complained that he sometimes does not wash his hands.

[251] Cross-examination revealed the following:

a) AH did not remember this happening.

b) Even after the video where she discussed this was played for her, AH did not remember this happening.

[252] The details that she gave to Detective Trader – the fact that CH got it on her back, her concern about germs, the fact that CH cleaned it up with a wipe, the fact that it happened at the end – are very compelling.

[253] Detective Trader did not elicit which incident or incidents this took place with respect to. The discussion in the 715.1 video takes place right after AH discusses the allegations of fellatio, but it also happens after Detective Trader raises what may have seemed to AH to be a new issue – whether she ever noticed anything change in relation to CH’s penis. Furthermore, the discussion of the ejaculate being on AH’s back would seem to suggest that this occurred after CH put his privates between her legs, which AH described happened with her back to CH.

[254] Thus, I find beyond a reasonable doubt that AH has seen CH ejaculate and some of the ejaculate got on her back. I cannot find beyond a reasonable doubt which incident or incidents that this occurred in relation to.

The Watching of Pornographic Videos In the Car

[255] The section 715.1 video revealed that CH played pornographic videos for AH when they were driving in the car. The people in the videos were doing “the same thing” she and CH did.

[256] In cross-examination, AH clearly remembered this. She stated:

a) she saw people touching each other on the videos;

b) CH put the video on for her and she just stared out the window;

c) she did not like watching them;

d) she did not tell CH that she did not like watching them because she was afraid that he would get mad at her; and

e) what she saw disgusted her.

[257] AH was unshaken in her evidence about this allegation. I find beyond a reasonable doubt that it took place as she described.

“It’s a Secret” and “Don’t Tell them What I did in Court”

[258] The 715.1 video revealed that CH told AH to keep what was happening private and that it was a secret.

[259] Her recall evidence also revealed that there were post-charge meetings between CH, VH and AH at a hotel and at parks. During one of those meetings, CH told AH not to tell the Court what he did to her.

[260] I found her videotaped evidence on this point compelling and I note that she was not cross-examined about it. I find that CH instructed AH to keep the sexual assaults a secret. She said she could not keep a secret and she apparently revealed what took place at school.

[261] I must have a doubt with respect to the parks incident. Although this discussion may well have happened because AH and CH were, at times, out of earshot from others, including VH, important details pertaining to the background of when this discussion happened and how AH’s disclosure to her mother came about were not elicited by the Crown.

AH’s Denials

[262] AH was firm in her denial that she did not see her parents naked. “Definitely no” she said.

[263] AH was also firm in her denial that she accessed pornographic videos while playing with CH’s Xbox/PS4. She explained that she was actually afraid to touch these devices because CH got mad when she did. Her belief that this related to protecting his progress in Minecraft is credible. In this light, her evidence that she only used them to access children’s programming for her brother, or herself, is also credible and I accept it.

[264] AH was also clear that the only time she saw pornography was when she was in the car with CH.

[265] There is no basis in her evidence for counsel for CH to speculate that she must have seen pornographic videos at times other than when she was in the car with him.

Animus

[266] It is clear from AH’s evidence, and it was admitted by CH that AH observed domestic violence between CH and VH. She believed that CH should have been punished for this.

[267] It is also clear that AH did not like the way that CH treated her brother or her and she essentially regarded him as, to use CH’s word, neglectful. He did not feed her or her brother. She did not like comments he made in the car about loving her more than O. She believed (correctly) that he was at fault for the lack of hydro.

[268] She testified that she hated him for a while. At another point in her evidence, she said that she hated him for about two weeks.

[269] At no point, however, was AH asked whether she made up the evidence she told Detective Trader in order to get her father in trouble. That suggestion was hinted at the cross-examination, but she was never confronted with that question.

[270] Elsewhere in these reasons, I have considered the issue of animus in dealing with defence counsel’s submissions about lack of avoidant behaviour. I repeat and rely on these findings here.

[271] I am well aware of the spectre of animus and the impact that it may have on the assessment of credibility. However, on the facts of this case, I find that animus I have described does not diminish the weight that I have given to AH’s evidence. It does not detract from the compelling nature of her evidence.

Conclusion

[272] In submissions, defence counsel relied on the following statement from Justice Malloy in R. v. Nyznik 2017 ONSC 4392:

Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.

Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.

[273] Of course, I agree completely with Justice Malloy.

[274] I am convicting CH not because I believe child witnesses like AH should be believed, as a matter of course. I am convicting him because I believe the Crown has discharged the heavy burden that Justice Malloy spoke of. I am convicting him because I disbelieve him, I am not left in doubt by his evidence and I believe AH’s evidence is credible, reliable and compelling. I am convicting him because I am sure that CH committed the offences for which he is charged in the manner I have set out above.

Summary of Findings

[275] For these reasons, I find the accused guilty of the sexual offences with which he is charged. Counsel may make further submissions to me with respect to the effect of R. v. Kienapple.

[276] It being admitted that at the time of the commission of the sexual offences, the accused was bound by a Probation Order, a statutory term of which was to keep the peace and be of good behaviour, I also find the accused guilty of this offence.

Released: May 9, 2024 Signed: Justice J.R. Richardson

[1] I infer from Detective Trader’s introduction to the videotaped statement that “Micheline” is Micheline Tremblay, a worker for Family and Children’s Services of Renfrew County.

[2] Later, during CH’s evidence, he indicated that they had a PS4, not an X-box. PS4 and X-box are therefore used interchangeably in this judgment, to describe the same device.

[3] Paw Patrol is an animated television show for children. It is available on YouTube.

[4] Shot of the Yeagers is a “reality” channel chronicalling the life of a family of eight from Utah.

[5] The friend’s name also begins with A. For ease of use, I will simply refer to him as “Friend”.