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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

DATE: May 16, 2025
COURT FILE No: 20-1420

Ontario Court of Justice

Between:

His Majesty the King
-and-
M.R.

Before Justice M. G. March

Heard on June 6, September 21, 22 and 27, 2022; June 24 and 26, November 27, 2024; January 14, 20 and 22, 2025
Submissions Heard on February 18, 2025
Reasons for Judgment released on May 16, 2025

Teresa James — Counsel for the Provincial Crown
Marnie Munsterman — Counsel for M.R.

Introduction

1. The accused, M.R., stands charged that at his former residence in Petawawa, ON, he did:
   a) on October 24, 2020, cause N.B. to take an overpowering drug, namely a 10 mg THC gummy, contrary to section 246(b) of the Criminal Code of Canada (“the Code”), and
   b) on October 25, 2020, touch for sexual purpose N.B., a person under the age of 16 years, directly with a part of his body, to wit, his finger contrary to section 151 of the Code.

2. At the outset of his trial on June 6, 2022, during the arraignment, M.R. pleaded not guilty to the above charges, and guilty to an additional charge of distributing cannabis to N.B. contrary to section 9(1)(a)(ii) of the Cannabis Act. M.R. was content to await sentencing for this offence until the conclusion of his trial on the other two charges.

3. His trial then proceeded for ten non-contiguous days over the course of an egregious span of three years. It began during Covid. It was delayed on numerous occasions due to M.R.’s inability to obtain approval for a state funded defence by way of a [Rowbotham Order][1]. Today, it reached a long-overdue conclusion.

4. As with so many criminal trials, the outcome of his case turned primarily on an assessment of the credibility and reliability of the witnesses called to testify.

Family Dynamic

5. M.R. is the stepfather of N.B., the complainant, his stepdaughter. M.R. was in an ‘on again, off again’, common law relationship with A.B., N.B.’s mother, for roughly six years. N.B. was a child of five to six years of age when M.R.’s and A.B.’s relationship began. M.R. and A.B. had two daughters together, E. and Q. The relationship ended permanently in or around 2017 when M.R. believed N.B. would have been around nine or ten.

6. For a few years post-2017, M.R. had no contact with N.B. He also struggled to maintain visitation with his younger children, E. and Q. A.B. and he engaged in a long custody battle. He did not attempt to have an ongoing relationship with N.B. due to legal advice he received about having little chance to being awarded parenting time with his stepdaughter. She was not his “blood”. Accordingly, he did not seek to have access with N.B. or to see her. M.R. felt that N.B. harboured resentment toward him as a result.

7. In August 2020, M.R. ran into N.B. while he was with his older daughter, A.R., from a former relationship he had had before the one with A.B., N.B.’s mother. M.R. and A.R. were visiting the Michael’s store in Pembroke. N.B. gave her telephone number to M.R. on this occasion, he recalled. N.B. remembered M.R. offering his telephone number to her.

8. M.R. and his older daughter, A.R. were living together at that time in Petawawa in private married quarters (“PMQ”), as M.R. was still a serving member of the Canadian military.

9. N.B. and A.R. were close in age to one another. They liked each other and got along.

10. N.B. had been living away from her mother, A.B.’s home since June 2020. Roughly three weeks after their chance meeting at Michael’s in August and the dates of the alleged offences with which M.R. was charged in late October 2020, N.B. would stay, including for weeks at a time and overnights, with M.R. and A.R. at the PMQ.

11. All the while, A.B. was unaware that N.B. was staying with M.R. He did not tell A.B. during pick up or drop off of their younger girls, E. and Q., where N.B. was. He had a poor relationship with A.B. to begin with. He was doing it as a favour for N.B. letting her stay with him. He did not want her to sleep on the streets. He invited her into his home, he testified, but he did not want A.B. to know.

12. M.R. agreed N.B. kept all her belongings in a backpack. She took what she owned when she left his place. On occasion, she would sleep feet to feet with him on his couch in his living room if his younger daughters, E. or Q. were with him as well. Otherwise, N.B. would periodically stay in E. and Q.’s room. There were a few occasions when all his girls stayed overnight with him. He added that if N.B. had indicated she wanted to live with him full time, he would have gotten her a bed too.

13. He estimated that roughly half of N.B.’s time was spent sleeping on the couch with him, the other half sleeping in the younger girls’ room. He did not force the issue of where N.B. was to sleep. If she wished to stay in E. and Q.’s room, she could, unless the younger ones were with him. When the younger children were away and N.B. was using the younger girls’ room, N.B. would close the door and he would not open it. He would nevertheless check on her from time to time to ensure that she was not using her phone late at night.

14. He agreed that he was really just getting to know N.B. again at that point and a sense of trust had not developed between them.

15. M.R. did not know whether the Children’s Aid Society or the police may be involved with N.B. He did not call either the child protection agency or the police to inquire whether N.B. was a child they may be seeking to locate.

Marijuana Gummies

16. M.R. acknowledged that he gave N.B. and A.R. marijuana gummies. He knew that N.B. was already using marijuana, because on one occasion when he picked her up to bring her to his place, she smelled like “weed”.

17. During her stays with M.R., N.B. would ask periodically if she could have some gummies. A.R. was also interested in trying them. Consequently, he testified that he purchased a package of four at the least dosage he could find because he knew his daughter A.R. would be a first-time user.

18. N.B., in her testimony, confirmed that there was a trip the three of them made to the dispensary in Pembroke to buy gummies for A.R.’s initial experimentation with them.

19. M.R. was “pretty certain” and later “very confident” that he gave only a half gummy to A.R. for her first time, and a full one to N.B. He was adamant that he only offered the girls gummies on one occasion, but he allowed that he was “not good with timeframes”.

20. He was sure that he did not give them to A.R. and N.B. on a Sunday. He believed the one time that he did was on the Saturday, around 4 or 5 PM, the day before he was alleged to have sexually touched N.B.

21. M.R. confirmed that he had an ‘on hand’ supply of gummies, but it was not the same product, and he did not want to be providing the girls “anything huge”. He agreed that by taking gummies with them, it was likely a less controlled environment for A.R. when she was experimenting with marijuana for the first time.

22. He hastened to add that he did have experience with the drug. He believed it would not affect him to any great extent. He surmised it was bad judgment on his part to give 14-year-old girls gummies “in the first place”, but he was concerned about the influence N.B. could have over A.R. in terms of trying marijuana.

23. In addition to gummies, M.R. would occasionally use a bong. When smoking marijuana, he would go outside the PMQ away from the children. He was having a hard time sleeping since his return from his military tour of duty overseas. Marijuana helped him to relax, and it “chilled the voices in his brain”.

24. N.B. recalled that M.R. would permit A.R. and her to have gummies every weekend the three of them were together, including Sundays. He preferred for the girls to take them with him. N.B. and A.R. would ask, and he would either go get them and bring them to them, or the girls would get them themselves.

25. N.B. denied that M.R. only supervised A.R. and her when they were using gummies. He would bring them on the trips to the cannabis store in Pembroke to purchase the gummies. He would then come into the PMQ and give them to the girls. Typically, they were of a 10 mg dosage. That is what N.B. observed on the container.

26. N.B. was not sure about what type of gummy she had on the night in question, but she did have one. She was also “pretty sure” that A.R. had one too, and that M.R. may have smoked marijuana out of his bong that night as well.

27. N.B. described the effect of the gummies on her as making her “zone out”, and then she would “come back”. She would forget a gap in time of what happened. It was not anything “super crazy”. She disagreed that she could hallucinate and imagine things.

28. N.B. explained that M.R. would ask her about the effect the gummies were having on her. If she told him she was not really feeling anything, he would allow her to go get another one. At times, this would happen in the presence of A.R.

29. To A.R.’s recollection, they would share gummies on the occasional Friday or Saturday night when she was with M.R. and N.B. He would ask, or N.B. would ask. They were kept in a cabinet in the kitchen. A.R. was not allowed to get them herself. Either N.B. or M.R. would retrieve them. M.R. would do the “measuring”.

30. Her dad, M.R., warned them, “You’re not supposed to be taking drugs.” The girls were only 14 at the time, but they took them anyway.

31. In a text to A.R., N.B. had jokingly referred to herself as a “pothead”. Under cross-examination however, N.B. maintained that cannabis consumption for her was occasional – “once in a blue moon”.

32. To A.R.’s mind, Sunday was a school night. They were not supposed to be taking gummies. She was not aware of N.B. taking one on the night of the incident. She did recall that there were times when N.B. took gummies, and she did not, but never on a Sunday as far as A.R. was aware. Nor did A.R. ever know of N.B. “sneaking” a gummy without M.R.’s permission, but N.B. “did it every time she was allowed”.

M.R.’s Laundry Routine

33. M.R. recounted that when A.R. came to live with him permanently in August 2020, and while N.B. was staying with him from time to time, he would do their laundry once per week. N.B. would place her things in the laundry basket he would bring to his parents’ home. His washing machine was not functioning in the late summer and fall of 2020.

34. Each room in his PMQ had its own hamper. A.R.’s clothes would be kept separate from E.’s and Q.’s. M.R.’s clothes would often end up in a pile in his room.

35. He believed or assumed that N.B. was using the hamper for her soiled clothing in the younger girls’ room, or they would be placed on his pile. He denied that she would put them in her backpack, the same place where she kept her lunch.

36. He conceded however under cross-examination, that he had previously testified that she took her clothes with her wherever she went. At times, she took her backpack to his parents’ house, and he would ask her to give him her laundry then. Hers would be last to go on his pile. He did not think that either A.R. or N.B. knew how to do laundry.

37. He estimated that he did N.B.’s laundry for her roughly two or three times. She had accompanied him to his parents’ place approximately three or four times in total.

38. He had no knowledge of N.B. washing her clothes at the other place she customarily stayed, B.T.’s., when N.B. was not with him.

39. M.R. stated that he would occasionally masturbate when his girls were not around. He would probably use a sock to clean himself after ejaculating. He would then put it in his hamper or his pile. He would not rinse it. He was not concerned about it. The girls would never touch his laundry pile.

40. When he was ready to go to his parents’ place to do laundry, he would place all the laundry in a big hamper, the one located in A.R.’s room. Her clothes would already be in it. He would then ask N.B., whenever she was with him, if she had anything to add to it. By this point, the big hamper would commonly be placed by the front door of his PMQ.

41. If the clothing belonging to his younger girls, E. and Q., needed laundering, he would have them take off what they were wearing at his parents’ place and wash their outfits for them there as well.

42. M.R. was not sure if his father’s clothing would ever be added to his and his daughters’ when M.R. was doing the laundry.

43. M.R. indicated that there is only one bathroom in the PMQ. His daughters and he each had their own towel. They did not use face cloths.

44. He did not remember washing his bedsheets, nor A.R.’s, over the August to October 2020 timeframe she stayed with him.

45. Once he finished the wash at his parents’ home, he would bring the clothes back to the PMQ to fold. N.B. would grab her own stuff if she was going to B.T.’s thereafter.

46. When challenged under cross-examination that N.B. never put her clothes in a hamper to be laundered, M.R. disagreed. He maintained that she did. He saw her put her laundry on two or three different occasions into the big hamper that he would bring to his parents’ place.

47. For her part, N.B. testified that she did her laundry at B.T.’s place, not M.R.’s. He did not have a “working washer”.

48. When cross-examined about the clothes she was wearing the night she was allegedly sexually assaulted by M.R., and wore to the hospital the next day, N.B. explained that she had done her laundry a few days prior. She could not remember the last time she wore that thong.

49. She maintained that it was B.T. who did her laundry. N.B. would put everything, clean and dirty, in her bag and take it to her place to be laundered. Clean clothes would be folded, and the dirty stuff would be “shoved right in”. Her clothes, on occasion, would accompany her to school as well.

50. A.R.’s recollection was that N.B. would bring her laundry to have it done at her grandparents’ place as needed. She did not know if N.B. had ever done it elsewhere.

The Incident

51. On the day that M.R. was alleged to have sexually touched his 14-year-old stepdaughter, N.B., he recalled that he dropped her off at a male friend’s place, before he returned E. and Q. to their mother, A.B. He stated he did not feel comfortable leaving N.B. at the boy’s place because his parents were not at home. M.R. told her she could stay for an hour before he picked her up. He texted to her to let her know when he was coming back.

52. He reckoned it was about 7 PM when he arrived at the boy’s place. M.R. did not know the apartment number of the building where the boy lived. M.R. conceded that if he had to find her, he would not know the unit to go to.

53. When N.B. exited the building and entered M.R.’s vehicle, they drove to his PMQ and did what they always did, watched movies. It was a Sunday night. He assumed the girls had already changed into their PJs. They all shared a pizza together that he had bought in Pembroke. N.B. stayed over that night.

54. M.R. explained that there is a coveted spot on his L-shaped couch in his living room where they watch television. It is where he “hangs out”. It is “comfy with padding all around”.

55. Routinely, he added, N.B. would “jump on [his] guts” when he was watching TV. To prevent this, he would lay on his side. N.B. would then put a pillow where his “butt” was and lie on him.

56. At around 10:30 or 11:00 PM that night, M.R. recalled pushing N.B.’s phone away from her face down toward her chest. She lifted it back up and he pushed it back down again. He did not physically take it from her, nor prevent her from retrieving it from him. He was simply putting his foot down. He was annoyed at how much time she would spend on the phone. He wanted her to put it away, and for her to do more chores.

57. This would have occurred shortly after A.R. had gone to bed. N.B. had stayed up with him. Oftentimes, N.B. would fall asleep on the couch with him. He would let her do so. He would then walk her up to bed.

58. He denied that N.B. was on his stomach on the night in question. He did not move her there or near his penis or groin area. He stayed on his side because he was full from the pizza he had eaten. However, under cross-examination, he testified that he was on his back when N.B. “dropped on [his] gut ‘Sumo wrestler’ style”. He then turned on his side.

59. Nevertheless, M.R. maintained that N.B. was sitting on his side rib area with her feet out in front of her. She had been there for about an hour on her phone the whole time. He tried to “scooch” her onto the stool in front of them. He was able to move her somewhat because she does not “weigh very much”. She tried to resist him by pushing her feet against the stool.

60. She then jumped back on top of him and prevented him from moving her again by bracing her foot against the stool. To counteract this, M.R. pressed on her knee in an area he knew to be a “pressure point”. He had done this to her in the past when she was hurting him in a similar manner. In essence, he was trying to get her off his body.

61. He told her, “That’s enough”, and “That really hurt”. He shut off the TV and told her it was, “Time for bed”. They argued but it did not last long.

62. He disagreed that he ever tugged on the drawstring of the shorts she was wearing at the time, nor did he grab for it. He did not put his hands under her thigh while she was on top of him. He did not slip his hand up the leg of her shorts and underneath her underwear, fondle her vagina or insert his finger(s) inside it. He never rubbed her thigh or touched her in a sexual way.

63. He did not understand how his DNA profile could have been found after testing was done on a swab taken from inside N.B.’s vagina, and on a cut-out of the crotch area of her underwear. He was completely at a loss to understand how there could have been a match. Simply put, he asserted that what N.B. said he did to her on the night in question did not happen.

64. He was aware that he ought to have been more guarded about allowing a teenage girl to sit on top of him with loose fitting pyjama shorts, but he did not take advantage of her in any way. He certainly did not put his fingers in her vagina.

65. He recalled that N.B. was mad at him as she was going up to bed that night.

66. He had no interaction with her after she did so. He thought he woke the girls the next morning around 7:10 AM to go to school. He did not have any “out of the ordinary” conversation with N.B. at that time. It was a normal morning.

67. He did not try to pull her in and hug her that morning. To his recollection, she did not tell him that she did not want a hug. Nor did he promise to her at the car as they were leaving to head to school, “I will never do that again.”

68. He recounted that N.B. kept her clothes in a backpack in her room at his PMQ unless she was going to the other place where she routinely stayed while living away from her mother’s, in which case she would leave it at the door for her to pick up on the way out. M.R. did not recall what the plan was for N.B. after school that day. Overall, he commented that N.B. always had her backpack with her.

69. M.R. dropped N.B. at the foot bridge which leads to her school. She did not ever come back to his house again.

70. Reflecting on the two months N.B. spent staying with him on occasion, M.R. commented that it got better, but she would constantly try to push the rules. He would let her stay at her boyfriend Z.’s place, but only when his parents were at home. N.B. was not good at following the rules, but she was newly back in his life, so he was not pressing them too much.

71. He emphasized that he did not like her to be up in his younger daughters, E.’s and Q.’s bedroom, on FaceTime with boys. He also expected help with doing chores.

72. Regarding his rules, M.R. conceded they were not strict. No real consequences flowed if they were broken. Furthermore, whenever N.B. stayed with someone else, not him, he did not check with the other adult to ensure there was consistency in the application of whatever rules were to be imposed for N.B.

73. In describing his memory overall, M.R. characterized it as “bad”.

74. For her part, N.B. was insistent that M.R. sexually touched her. A.R. had already gone to bed. Only M.R. and N.B. were left in the living room on the couch. No one else was present in the PMQ.

75. M.R. was in the ‘coveted spot’. He then sat N.B. on his stomach perpendicular to his body. He had his head against the armrest of the couch. She said he would do this customarily since she was a child and he lived with her mother. At times, N.B. would voluntarily place herself on top of him if he was the first to get to the ‘coveted spot’. There was always a level of physical affection between them.

76. N.B. remarked that she had seen M.R. place E. on his stomach like that as well. However, N.B. could not recall ever seeing A.R. placed in such a position by M.R.

77. That night, he was watching the TV lying on his back. N.B. was sitting with legs outstretched pointing toward the TV too.

78. Eventually, M.R. told N.B. that she was crushing his ribs. She tried to “scooch” down, and he was pushing her downward a little bit as well. She put her foot out against the couch and dug in her heels to resist and to hold her position. She did not wish to be moved too far down toward his waist and penis area.

79. M.R. responded by squeezing her upper, inner left thigh region “on a pressure point”. As she was testifying, she gestured to a point a couple of inches below her vagina. She was trying to stay on his lower stomach and not any further down toward his waist/penis area.

80. She explained that she was wearing shorts with a really long drawstring. She felt a tug on the string while his hand was under her thigh. She guessed that they were tied too tight, and he could not loosen them. He was telling her to get off her phone and she would not. He then snuck one or two of his fingers under her shorts and her thong underwear. She further gestured that the shorts she was wearing only descended two to three inches down her thigh from her groin.

81. He began rubbing outside her vagina and then put one of his fingers inside it. He kept asking her if she liked it, and if she was “okay”, or if she wanted him to stop.

82. Earlier, he had given her a gummy. It felt to N.B. as though the lower half of her body was numb. The numbness, she ventured, began as he touched her sexually. She later clarified that it was her vaginal area only that went numb.

83. She did not know if the feeling came about due to her being high or in shock, because she could not really believe what was happening initially. She was very nervous and kept telling him, “I don’t know, I don’t know”. He kept asking if she wanted him to stop. She continued replying, “I don’t know.”

84. N.B. stated that there was a gap in her memory between when M.R. pulled on her drawstrings and she felt his hand go underneath her shorts to when his fingers were rubbing on her vagina and then inserted inside.

85. She added that he was pulling her downward on the arm of her hoody/sweater to lay beside him. He was asking if she was okay. He had his right arm around her shoulders holding her there.

86. She told him she just wanted her phone. She kept reaching over trying to get it. He had taken it from her and placed it on the other side of him while she was on top of him, and he started touching her. The phone remained nevertheless on the couch. Eventually, she was able to put her arm over him to retrieve it.

87. Under cross-examination however, she gave evidence that the touching had stopped before he took her phone. She did not know how long the touching lasted. As she put it, “Like five minutes felt like an hour”. During the touching, she “kind of froze”.

88. Later, she stated that he wanted her to get off her phone both before and after the inappropriate touching occurred. First, he wanted to watch the movie while she was on it. Afterwards, once he was finished touching her, he wanted her off it as well.

89. When she had her phone in her possession, or managed to get it back, she was texting her ex-boyfriend, Z., over Snapchat to see if he could call someone or the police because she was not “really able to” at the time. She managed to save some of those messages. She was “kind of” telling him everything that had happened.

90. She was also trying to text his friend, I., when Z. was not responding. She thought that I. and Z. may be playing video games together. As she put it, “I just wasn’t too sure what to do.”

91. She did not know why she did not save all the Snapchat messages. She was “just trying to get hold of people”. It was not until after Z. texted to her, “You’re not my problem”, that she started saving everything. She hastened to add that saving messages in that moment was not her first priority. She agreed that she did not save the first message that she had sent to Z.

92. When pressed under cross-examination about why she would go back and sit on top of M.R. after he had sexually touched her, N.B. explained that when she was able to pull herself back up, her legs were already on him and her waist beside him. She continued trying to text Z. and did not know what else to do.

93. She reckoned she was “more just in shock and trying to get someone to call.” She had no idea how long her texting with Z. lasted. She stated that she told Z. that she would just spend the night at M.R.’s and deal with it at school the next day.

94. N.B. also clarified that she was messaging before and after the touching. Initially, she thought something wrong was about to occur. Afterwards, she indicated that she thought something bad had just happened. However, she was not 100% sure. She surmised, “Like, I’m all over the place.”

95. Following the incident, she told Z. about everything that happened “piece by piece”.

96. M.R. kept asking her soon after the touching had ended if she wished to watch a movie or to play Minecraft. She thought it was about 11:30 or 11:40 PM at this point, and she had school the next day, so she told him she was going to bed.

97. She did not tell A.R. what had happened because N.B. believed that A.R. would not believe her. They had had a recent, “huge disagreement” and had not been talking for some time.

98. At one point, M.R. came up to speak with her because her Instagram “was still logged in on his phone”. He wanted her to log out for him because he did not know how to do it himself. She did so and he left.

99. Upstairs, she laid in bed trying to sleep, but she supposed she was just afraid and nervous. Eventually though, she finally fell asleep.

100. M.R. woke N.B. in the morning for school. She dressed herself and took all the clothes she had at his place. She put them in her backpack with her computer. She went down to the living room and waited.

101. He asked her if she was okay. She told him she was. He tried to pull her in to hug him. She pushed him away. She told him she did not want a hug. She asked for his keys. He gave them to her. She went to the car and connected her music, because as she stated, “I play my music every morning.”

102. She was still wearing the same teal, thong underwear as the previous evening. She knew that she was going to report what had occurred, and that “they” were going to need them for something. The shorts she had been wearing she placed in her backpack too. She did not plan on going back to his place.

103. He drove her to school. He dropped her at the foot bridge as he did every day where she would hang out at the smoking pit with her friends before school started.

104. Under cross-examination, N.B. confirmed that she did not return home to her mother’s place after the incident. She continued to live with a family friend, B.T.

105. She added nevertheless, during her stay with M.R., she considered him to be a ‘father figure’. At times he would prevent her from visiting her boyfriend, Z. Unlike B.T., M.R. would not allow N.B. to stay overnight at Z.’s place. It was a rule that M.R. enforced strictly, and that N.B. found “annoying”.

106. The other rule which M.R. expected N.B. to abide by was not being on her phone late at night.

107. However, N.B. was clear. M.R.’s structure and discipline in his home was not the reason why she stopped living with him.

108. She conceded that she was “mad” at M.R. for disappearing as he did. He had been in her life for so long. Then he left. She did not really understand why her mother, A.B., and he broke up.

109. N.B. agreed that M.R. did not want her younger sisters, his daughters, E. and Q., to know that N.B. was staying with him. He did not want the younger girls to run back to their mother, A.B., and tell her that they had seen N.B. at his place. N.B. confirmed that she was willing to keep her mother in the dark. She thought it would probably just cause “another big blowout” between them. They were still not talking at all.

110. On the day of the alleged incident, to avoid being present when M.R. returned E. and Q. to their mother’s place, N.B. asked if she could be dropped off at her friend’s place, J., for a few hours. M.R. commented to N.B. that “a lot can happen” over that time frame, which she interpreted to mean “sexual intercourse”. M.R. nevertheless agreed to leave N.B. in J.’s company, even though he knew that J.’s parents would not be home. M.R. came to collect her later. It was “that night”, as N.B. described it, that “everything with [M.R.] had happened”.

111. She did not believe that she ate at J.’s place. She had dinner later, she thought, at the PMQ with M.R. and A.R. She thought he then started watching a movie around 10:00 or 10:30 PM while the three of them were on the couch together. That was their routine. There was no set bedtime for N.B. and A.R. The girls were to use common sense and not go to bed at one or two in the morning.

112. Regarding gummy use that night, N.B. testified that M.R. came out and gave them to A.R. and her after dinner. N.B. had a half of one in the beginning, and then another half afterwards. N.B. was pretty sure that A.R. had only half of one. Both A.R. and M.R. denied any gummy consumption on the night of the incident.

113. N.B. was contradicted about whether M.R. apologized to her for sexually touching her the night of the incident. She agreed under cross-examination that M.R. did not apologize shortly after the touching had occurred. The transcript of what she told police the following day was then put to her. In her statement, she indicated after the touching had ended, M.R. told her, “Sorry, I won’t ever do it again.”

114. When confronted in this manner, N.B. replied in an exasperated tone, “Well, you’re acting like there hasn’t been a three-year gap since what had happened and since now, so.” When further pressed by defence counsel that the apology happened in the morning following the incident, N.B. replied, “Because that’s what I remembered.”

115. Next, when defence counsel suggested to N.B. that the discrepancy existed because all of what she was saying about the incident was untrue, N.B. answered, “How? Because there’s multiple statements. I went for a test. Everything I’ve told you has been pretty well ‘spot on’ for everything.”

116. Defence counsel also challenged N.B. about the mechanics of how she ended up on M.R.’s stomach. She told police that initially, M.R. threw her on the other side of the couch to move her out of the ‘coveted spot’. He then laid on it and she returned to sit on top of him. However, she clarified that he asked and wanted her to come to sit on top of his stomach. She approached and he helped her on top of him.

117. Defence counsel then questioned N.B. about her omission of mentioning any pinching of her sides by M.R. to make her move, to which N.B. responded, “It’s been three years.” N.B. acknowledged that M.R. had engaged in pinching her in the past “joking around” and to get her to move. She conceded that she had completely forgotten about the pinching. However, she adamantly denied that M.R. was simply pinching her to get her off him and to have her go to bed. She also disagreed that pinching occurred in her knee area as opposed to her upper, inner thigh.

118. A further inconsistency was put to N.B. by defence counsel where it was suggested that she told police when he moved her down to lay beside him, his hand was still in her shorts, she replied, “I’m assuming that whenever, like, what I’ve been trying to say is when he was trying to pull me down, that his hands were still in my shorts, and then he pulled his hand out to, like, pull me down completely beside him”.

119. Defence counsel then put to her, “That’s not what you told us this morning?”

120. N.B. answered, “It’s also been three years.”

121. Defence counsel reproached her with, “Just let me finish my question.”

122. N.B. responded, “Well, no, because it’s really starting to piss me off now.”

123. After a brief recess, N.B. clarified, “Well, like I said, we were watching, like A.R. went upstairs. We were watching the movie, and he was playing with my drawstring, and I guess he couldn’t get it undone. So he went and put his hand underneath my leg, and then he was on the outside of my underwear. And then eventually he went underneath my underwear, and then continued to penetrate. And then he kept asking me if I liked it. I said, I don’t know, and then eventually he had stopped and took my phone and held me down, took my phone and put it on the other side of him, and I couldn’t reach it, and he just kept asking me if I liked it. If I wanted him to keep going. And I told him, I don’t know. I just want my phone.”

124. When further questioned about whether M.R.’s hand was still inside her shorts as she was pulled down to lay next to him, N.B. was clear in her answer, “No, he had taken it out by then.” Clearly, his hand had already been removed.

125. N.B. also acknowledged that she did not tell police that she had consumed a gummy on the night in question, a Sunday. She only told police that she had taken one on the day previous, the Saturday.

Disclosure of the Incident the Following Day

126. When N.B. attended at school on the Monday, the day after the alleged incident, she walked up to her friend, B., and started to cry. She told him what happened to her. His girlfriend, L., came over and talked to N.B. about it. N.B.’s friend, C., approached and hugged her.

127. N.B. attended her first class of the day. After announcements, she asked her drama teacher if she could go to the office to report something. She spoke with her principal at her high school at the time, Mr. T. She told him what had occurred the day before. He suggested she should speak to the school counsellors. Later, her CAS worker attended at the school to pick her up.

128. CAS was already involved with N.B. and A.B. to play a preventive role in avoiding physicality between mother and daughter.

129. The CAS worker accompanied N.B. to the military police detachment. There she gave her statement to police.

130. From the detachment, she next went to the hospital. There she met with a sexual assault nurse, Jennifer Valiquette.

The Forensic Evidence

The Sexual Assault Examination Kit (“SAEK”)

131. Ms. Valiquette has been acting in the capacity of a Sexual Assault Nurse Examiner since 2006. She followed the procedures set out in the SAEK with N.B. as the subject of her examination, shortly after N.B. was brought to the Pembroke Regional Hospital (“PRH”) on October 26, 2020.

132. On that day, Ms. Valiquette was contacted by Pembroke CAS seeking her assistance. CAS brought N.B. along with her mother and aunt to PRH for the purpose of having the SAEK performed.

133. N.B. and Ms. Valiquette entered a private room in the Emergency Department of PRH at 16:30. From discussions with N.B., Ms. Valiquette understood that N.B. was wearing the same clothes she had on at the time of the alleged sexual assault.

134. Ms. Valiquette collected N.B.’s underwear from her and placed them in a container. Ms. Valiquette commented that they were in the middle of Covid at that time. She was wearing a mask, a visor, a hospital robe, and gloves.

135. Ms. Valiquette emphasized that the prevention of contamination is key to the proper collection of evidence collected for the SAEK. The SAEK came to her in a sealed box. She had to break it open. A bag is found inside to place the subject’s underwear. She had N.B. drop her underwear into the bag without touching it. Ms. Valiquette did not touch the underwear herself. The bag was then sealed, labelled, and placed in the SAEK box.

136. Ms. Valiquette added that all items collected must go into the SAEK box. She then resealed it and handed it over to police.

137. Ms. Valiquette understood from her interview with N.B. that the alleged perpetrator of the sexual assault possibly put saliva on his finger before digitally penetrating N.B.

138. N.B. also indicated that the alleged perpetrator grabbed her left thigh. Accordingly, Ms. Valiquette collected two swabs from the surface of what she observed to be two small bruises on N.B.’s inner and outer left thigh. Ms. Valiquette also drew on a preprinted diagram of the subject of the SAEK where bruising was observed. Ms. Valiquette took a series of photographs of N.B.’s person including several of the actual bruising caused to her thigh as well. N.B. was not complaining of any pain caused by the pressure applied by the alleged perpetrator to her leg.

139. The bruises were round in shape, blue-green in colour and 3 mm in diameter. They appeared “new”. Those bruises were the only injuries observed by Ms. Valiquette on the person of N.B.

140. N.B. also confirmed for Ms. Valiquette that she had used drugs on October 24, 2020, specifically a marijuana gummy of 10 mg strength which N.B. estimated she consumed roughly 24 hours before the assault. N.B. told Ms. Valiquette that she felt “high, confused and dazed” before enduring the alleged assault.

141. Amongst other procedures performed, Ms. Valiquette took an external genitalia swab using a probe which resembled a Q-tip. Beforehand, N.B. was instructed to lie flat on her back with her knees apart to allow access to her vaginal area.

142. Two other swabs using long Q-tips held together were taken from two to three inches inside N.B.’s vagina after they contacted her vaginal walls. Those samples were then packaged, labelled, sealed, and placed in the SAEK box as well.

143. Ms. Valiquette understood that the only body part of the assailant alleged to have entered N.B.’s vagina was his finger(s). N.B. was not feeling any discomfort in her genitalia.

144. Ms. Valiquette turned over the completed SAEK to military police at 20:15.

145. Ms. Valiquette added that the Centre of Forensic Sciences (“CFS”) would be responsible for performing any analysis upon the samples taken from the person of N.B. Ms. Valiquette is never told about the results. CFS communicates the results of its analysis to police only.

146. Under cross-examination, Ms. Valiquette explained that a urine sample was taken from N.B. at 16:15 in advance of the SAEK box being opened. N.B. would not be subjected to vaginal examination if she “had to go”. The urine sample would then be transferred and sealed in a closed container provided in the SAEK. A blood sample also could be done out of order of the steps to be followed in conducting the SAEK, if, for example, a lab tech at the hospital were available to take one. In N.B.’s case, Ms. Valiquette was present to see the lab tech draw a blood sample from N.B. in the pre-provided vial, which was also placed in the SAEK box.

147. Regarding the underwear N.B. wore to the hospital, Ms. Valiquette clarified that she understood those to be the ones N.B. had on before, during and after the alleged sexual assault. Ms. Valiquette did not know if the alleged assailant pulled the underwear down or removed them. Nor did Ms. Valiquette know anything about a backpack which N.B. may have had in her possession containing a different pair of underwear. The only clothes Ms. Valiquette placed in the SAEK were the underwear N.B. was wearing at the time of her examination.

148. Based on her interview with N.B., Ms. Valiquette understood that N.B. had neither showered nor bathed following the alleged sexual assault. Ms. Valiquette added that the sole source of the information regarding what occurred was N.B. herself. As a Sexual Assault Nurse Examiner, Ms. Valiquette must rely completely on the subject providing to her true and accurate information. Nothing N.B. told Ms. Valiquette caused her to document anything the nurse believed to be untruthful or inaccurate.

149. Ms. Valiquette explained that the two Q-tips used to swab N.B.’s vaginal walls are pressed together to obtain the sample, but packaged separately before they go into the SAEK box. Ms. Valiquette understood that this is done for purposes of allowing for separate analysis to be done by CFS.

150. Ms. Valiquette expounded that the vaginal samples are taken two to three inches inside the vagina to allow for the Q-tips to contact the back of the vagina where the cervix is located.

151. As a general proposition, Ms. Valiquette stated that there are varying times when subjects present at the hospital to undergo a sexual assault examination, but the sooner they go, the better. She understood that the viability of obtaining evidence of the saliva from an alleged perpetrator is roughly a 24 hour window. In N.B.’s case, Ms. Valiquette understood that the alleged assault took place at 23:20 on October 25, 2020. She then saw N.B. at the hospital some 16 hours later.

152. Ms. Valiquette confirmed that she has no way of knowing whether saliva would be detected in consequence of her examination. That task is left to CFS.

The Crown Expert

153. Following a non-contentious [Mohan voir dire][2], I qualified Ms. Monica Sloan of CFS as an expert witness in the areas of:
     a) examination of items for the presence of blood, semen and saliva and interpretation of bodily fluid testing results, and
     b) interpretation of DNA typing results in autosomal and Y STR systems.

154. Ms. Sloan indicated during her testimony that she has been qualified in the past by this Court and the Superior Court of Justice in Ontario to provide opinion evidence in the above-mentioned areas to assist triers of fact in understanding DNA evidence. She is not aware of any case where her opinion evidence was rejected or disregarded by either Court.

155. Ms. Sloan explained that DNA is the blueprint of life. In her professional capacity, she looks at the 15 different types of DNA markers and uses the measurements taken therefrom to come up with a profile, if possible, DNA can also indicate the sex of an unknown contributor of an examined sample containing DNA.

156. For forensic investigation, the experts look for comparison reference from a known source to an unknown one. Thereafter, the known source can be excluded as the person who contributed the examined sample. If that person cannot be excluded as the donor of the unknown sample, as an expert, she can extrapolate the likelihood ratio or probability for that person being the donor of the sample.

157. The experts always default to the 15 reference points (STR testing) for DNA within the 22 chromosome, autosomal system. Y STR testing will be resorted to in instances where a STR profile cannot be obtained. This may happen in instances where there is a preponderance of female DNA located on the specimen analyzed. The Y chromosome is only found in the male of a species. However, Y STR testing is much less distinguishing than STR.

158. DNA testing aims to identify the transfer of a bodily substance to an item or object, which may leave a DNA profile upon it. All bodily substances contain DNA. Semen has the most. Blood is next. Saliva is last.

159. Skin cells contain a lot less DNA. However, no DNA testing exists for the presence of skin cells.

160. By way of example, Ms. Sloan testified that if one licks one’s hand, sneezes or coughs on it, saliva may be transferred. Even rubbing one’s eyes can allow for the potential transfer of DNA to the hand. The amount of the transfer is critical to DNA detection. Skin cells are thus a far less rich source of DNA than a bodily fluid.

161. As a general rule, wet substances are better than dry for increasing the chances for DNA transfer. The absorbency of the material in the item or object analyzed is also a factor.

162. Ms. Sloan was clear that the transfer of DNA can occur when laundering clothes in a washing machine. The transfer can also happen with clothes being placed in a common pile or hamper. Studies have shown that semen can pass from one item to another in these manners. Ms. Sloan did not know of the transfers of bodily fluids other than semen having been the subject of any confirmed study.

163. When DNA scientists look for a profile, they allow for a number of contributors. They do not know how many there will be. Essentially, they are examining the 15 reference points along the STR autosomal range. If more than one peak is identified along the 15 reference points, this is an indication of more than one contributor. If one analyses underwear for example, and more than one peak is found, someone other than the wearer has contributed their DNA to that item of clothing.

164. In her Biology Report No. 1 dated January 27, 2021, Ms. Sloan indicated her findings from N.B.’s SAEK submission to CFS as follows:
     a) external genitalia swab – no/not enough male DNA to complete the test,
     b) vaginal swab - enough male DNA for Y STR testing only,
     c) skin swab, left outer thigh – no/not enough male DNA to complete the test,
     d) skin swab, left inner thigh – no/not enough male DNA to complete the test,
     e) underwear - saliva not detected,
     f) underwear - presence of saliva inconclusive on the crotch area, and
     g) cut-out from crotch area - saliva inconclusive, DNA from N.B. and one male, Mixture 1 DNA profile suitable for comparison.

165. Ms. Sloan sent Mixture 1 to the RCMP DNA databank. The analysis for the mixture was uploaded and registered a hit on the databank index.

166. During the testimony of Ms. Sloan, defence counsel made a formal admission that there was no issue that police obtained a warrant and took a DNA sample from M.R. which was added to the RCMP DNA databank.

167. In her Biology Report No. 2 dated March 11, 2021, Ms. Sloan concluded that:
     a) M.R.’s DNA profile could not be excluded as a contributor to Mixture 1 from the cut-out of the crotch of N.B.’s underwear, and
     b) the STR DNA results were estimated to be greater than 1 trillion times more likely if they originate from N.B. and M.R. than if they originate from N.B. and an unknown person unrelated to M.R.

168. The only exception to the conclusions reached by Ms. Sloan would be if M.R. had a twin brother.

169. In her Biology Report No. 3, dated October 1, 2022, Ms. Sloan set out her findings on the Y STR DNA testing she did for the vaginal swab taken from N.B. She concluded that only enough male DNA for this type of testing existed was developed by her, which she labelled “Profile A”.

170. Ms. Sloan offered that no STR profile was attempted because she was concerned about using up the sample. She added that no Y STR databank has been established yet in Canada. She doubted its utility in any event because of the reality that the Y STR profiles would be the same for great-grandfather to grandfather to father to son and so on due to the Y chromosomes being passed along patrilineally.

171. In her Biology Report No. 4 dated December 6, 2022, Ms. Sloan concluded:
     a) M.R. could not be excluded as the source of a male specific Y STR DNA profile taken from the vaginal swab performed upon N.B., and
     b) the Y STR DNA results are estimated to be 2000 times more likely if they originate from M.R. than if they originate from an unknown male, unrelated to him.

172. Ms. Sloan provided a caveat as well to her conclusions. She stated, “Close paternal male relatives of M.R. may also not be excluded.”

173. Ms. Sloan expounded that the statistic of 2000 times more likely is as high as the science will allow for Y STR profiling comparison. In other words, concluding that M.R.’s DNA, or his father’s or grandfather’s, was deposited inside N.B.’s vagina was the maximum exclusionary probability that could be reached for this form of testing.

174. On the issue of DNA transfer, Ms. Sloan doubted the possibility that M.R.’s DNA could have been contributed and travelled two to three inches inside her vagina in the absence of sexual activity. She did allow for the possibility of his DNA being deposited via an object such as a tampon or vibrator, if he had handled either. His finger(s) could also result in him leaving traces of his DNA upon the person of N.B.

175. Ms. Sloan added that the STR DNA profile developed from the sample taken from N.B.’s underwear, and the Y STR DNA profile developed from the vaginal swab, did not offer any conclusion as to how the transfer of M.R.’s DNA occurred in both instances. The science stopped short of being able to assist the Court with how DNA is deposited.

176. She did not rule out the possibility of a washing machine or hamper being the mechanism for the transfer of his DNA to an item of N.B.’s clothing. She was doubtful, however, that any such mechanism for incidental transfer could explain the presence of his DNA in her vaginal swab.

177. When Ms. Sloan testified on November 27, 2024, she was aware of an expert’s report produced for the defence and dated November 14, 2024 by Gary Shutler, PhD. One of the criticisms of her findings by Dr. Shutler was Ms. Sloan’s failure to take control samples from the underwear to rule out “background DNA” as the mechanism for deposit of M.R.’s DNA profile on N.B.’s underwear. Ms. Sloan explained that the DNA testing is limited in any event. It does not ever disclose the mechanism of transfer. It only discloses the presence of DNA.

178. The other criticism of Ms. Sloan’s findings by Dr. Shutler was the failure to take into account a “Founders’ Effect” for individuals who come from a limited genetic pool such as the 8500 French Settlers who landed in Québec centuries ago. The Y Chromosome Haplotype Reference Database (“YCHRD”) was used for calculating the 2000 times more likely probability that M.R. or someone along his patrilineage was responsible for depositing DNA inside N.B.’s vagina. Dr. Shutler’s report concluded that the match probability “could be argued as not applicable” given M.R.’s ethnic background.

179. In reply to this opinion, Ms. Sloan pointed out that the YCHRD includes not just French-Canadian settlers, but those from countless other countries as well. It is not a limited database for comparison the way a desert island would be, if there were no intermingling of gene pools, and if there were limited options for different patrilineal profiles to develop.

180. Ms. Sloan went on to explain that no bodily fluid testing was done on the vaginal swab intentionally because of the limited amount available for testing.

181. Ms. Sloan did not share Dr. Shutler’s opinion that the presence of M.R.’s DNA in N.B.’s vagina could have come from “known sexual, everyday type activities”. She opined that it was far more likely to have been deposited in consequence of sexual activity in which he had engaged with her.

182. Overall, Ms. Sloan testified that her opinion was unchanged notwithstanding having read Dr. Shutler’s report.

183. Under cross-examination, Ms. Sloan conceded that DNA testing can only indicate a connection between substance and source. She agreed that epithelial (i.e. skin) cells contain far less DNA than would typically be found in other bodily substances such as semen, blood and saliva. No saliva could conclusively be determined to have been deposited on either N.B.’s underwear or the vaginal swab.

184. Ms. Sloan chose a specific stained area of her underwear to be analysed. It produced a DNA profile in addition to N.B.’s, as did the vaginal swab. M.R. could not be excluded as the contributor for the male DNA profiles found. Statistically, the testing suggested overwhelmingly that M.R. was the contributor. However, her findings could not provide more or less support for how the particular transfer scenario played out.

185. Ms. Sloan clarified that M.R. was never targeted. The science looks for who can be excluded. He was one trillion times more likely to have contributed the DNA profile located from the cutout of N.B.’s underwear. He was 2000 times more likely to have been the contributor of the DNA profile found in her vaginal swab, although another male contributor from his patrilineage could not be excluded either.

186. Ms. Sloan also explained that the YCHRD is the best representative databank to compare the “who else but M.R.?” as the possible contributor of the DNA profile found in N.B.’s vagina. Given the YCHRD’s diversity, she doubted the significance of a Founders’ or ‘desert island’ effect. It is composed of worldwide sources and is more representative of the Canadian population at large.

The Defence Expert

187. At the commencement of his evidence, Crown counsel waived the necessity for a Mohan voir dire into Dr. Shutler’s qualifications to provide expert evidence regarding the deposition, transfer and persistence of bodily fluids and DNA. His areas of expertise were equivalent in effect to those of Ms. Sloan.

188. When he began testifying, Dr. Shutler confirmed that he had reviewed a significant portion of Crown disclosure, the biological reports and working notes prepared by Ms. Sloan of CFS to enable him to prepare his Expert Report dated November 14, 2024. He indicated he had no concerns with the quality of the work she had done. In his professional career, Dr. Shutler had been employed by the RCMP and had interacted with several CFS staff members.

189. Dr. Shutler pointed out that because M.R. and N.B. lived under the same roof, it was well known in the field of DNA forensic sciences that secondary transfers of DNA could occur through the common use of towels and washing machines. He also provided the example of semen stains on bedsheets, or vaginal cells from well used underwear leading to secondary transfers of DNA from one item of clothing to another.

190. He emphasized that modern DNA kits are so sensitive that they do not need much of a bodily fluid to obtain profile. Although he was not faulting the methodology used by CFS in M.R.’s case, secondary transfer is a reality that must be contended with in the scientific community.

191. Sperm cells are hardy. They can withstand significant environmental insults. They are very sticky. They can become embedded in fabrics. As a result, they can leave “background DNA”.

192. Specifically, the cutout of the underwear analyzed by CFS belonging to N.B. may have contained embedded DNA. Only if there is a “crusty stain” would he be more confident that the semen was a recent deposit on the underwear.

193. Epithelial cells, he pointed out, can of course be deposited by digital penetration of the vagina, but those cells can be transferred secondarily as well. Rubbing one’s fingers on an object can lead to the deposit of DNA.

194. Based on M.R.’s evidence that he washed his children’s clothing with his own at his parent’s residence, Dr. Shutler opined that it was “possible” to transfer DNA from his clothing to theirs, but it was hard to calculate the probability of it occurring. Studies of 11 households using the same laundry facilities demonstrated that DNA from parents, siblings and other families can be intermingled.

195. He explained that most male DNA is found in sperm cells because they are more robust under any form of chemical assault. Given M.R.’s evidence that he would masturbate into a sock, and cleaned himself with it, increased the chances of background DNA in his semen being transferred to items of his children’s clothing. The ejaculate would be a “good source of transfer”.

196. Regarding the vaginal swab taken from N.B., he drew to the Court’s attention a 2018 study on 300 vaginal samples taken from four female volunteers asked to abstain from sexual activity, but still testing for the presence of male DNA from their cohabiting partners when the Y STR method was utilized.

197. Nevertheless, Dr. Shutler agreed that the vaginal swab taken from N.B. and analyzed by Ms. Sloan was more likely a DNA profile deposited through sexual activity and not in consequence of background DNA.

198. Dr. Shutler further explained that in M.R.’s case, the male DNA obtained from the vaginal swab recovered approximately some 30 cells. This was not enough for STR testing, but it was sufficient in quantity to allow for Y STR testing. The Y STR testing, of course, is not as accurate as STR. He emphasized that Y STR testing cannot be used as an investigative tool, since no national DNA database for matching Y STR profiles exists in Canada. The chief aim of Y STR testing is to exclude suspects. The significance of the limitation for testing using Y STR is the significantly less weight it carries in calculating match probability.

199. Dr. Shutler testified that he had sufficient information to come to the conclusions he did in his Expert Report of November 14, 2024. He highlighted “Founders’ Effect” and the impact it has on Y STR testing. He explained Founders’ Effect as “a genetic echo from a past historical event”. When the 8500 French settlers migrated to Québec, they were the main source of the gene pool for all their future descendants - six to seven million French-Canadians. The population was not diverse. It was composed of a limited supply of Y chromosomes, which changed less over time. The 1 in 2000 proportion arrived at by Ms. Sloan based on the Y STR profile found coming from someone other M.R. could be less if one were to take into account Founders’ Effect. To Dr. Shutler’s knowledge, there were no Founders’ Effect databases kept in Canada.

200. In M.R.’s case, he grew up in Cocagne, New Brunswick. Both sets of his grandparents and great grandparents lived there as well. He was aware that his mother’s side of the family underwent ‘21 and Me’ DNA testing and it uncovered the family’s ancestry to be French and Indigenous. It was supportive of him having a French-Canadian background. Since the French-Canadian population descended from 8500 settlers, and the 6 to 7 million French Canadians in Canada at present can trace their origins to those settlers, Founders’ Effect may have had an impact on the probability calculation made by Ms. Sloan. Accordingly, Dr. Shutler opined that there was “limited statistical support” for Ms. Sloan to arrive at the 1 in 2000 probability calculation.

201. In his report as well, Dr. Shutler pointed out that no determination could be made as to what type of bodily fluid left the Y STR DNA profile in the vaginal swab done upon N.B. It could have been left by epithelial cell deposits from digital penetration, but there was no way to definitively say. No RNA testing was done to see what biological information was available to allow the profile to be extracted.

202. Under cross-examination, Dr. Shutler recounted that he came upon Founders’ Effect from his work at the Children’s Hospital of Eastern Ontario. Personally, he had not conducted any study on the Effect, nor does he claim to have any expertise in that field, especially as it relates to the French-Canadian population.

203. He also agreed that in the past 250 years, there has been more diversity through immigration influx to the YCHRD. The further one moves away from the event, (i.e. the colonization of Québec through the migration of the 8500 French settlers), the impact of their echo lessons.

204. Further, the study to which Dr. Shutler referred, published in 2005, looked at Founders’ Effect from immigration to Nouvelle France (modern day Quebec). The study did not investigate how New Brunswick was settled by francophones. Dr. Shutler surmised that the French in Québec moved to other regions. He conceded that he was not an expert on how the distribution of francophones across Canada came to be. Nor was he aware of any Canadian databases for French Canadians of confirmed origins.

205. Dr. Shutler based his belief that M.R. could have descended from the 8500 French settlers based on:
     a) the French pronunciation of his surname,
     b) where the incident was said to have occurred (i.e. the Ottawa Valley), and
     c) his discussions with M.R.’s defence counsel.

206. Dr. Shutler did not interview M.R. himself as to his knowledge of his heritage. Nor did he inquire as to whether M.R. had done a family tree. He did not take a personal history from M.R. He did not ask for the results or for a copy of any report obtained by M.R.’s relatives as to their ancestry. He conceded that he could have used more information on M.R.’s ethnicity.

207. He agreed that he had no real issue with the validity of the results obtained through CFS analysis. With respect to the STR profile obtained from the cutout of N.B.’s underwear, his caveat was as to the source of the DNA. Where the profile came from was left undetermined, since no bodily fluids testing was done.

208. He confirmed that as a general proposition, it is commonly understood amongst the scientific community to do the minimal amount of testing out of concern for the preservation of a portion of the sample.

209. Regarding the potential impact of laundering the clothes belonging to M.R. and his daughters together, there was the possibility for DNA to be transferred, but also the possibility for it to be expelled completely as a result of the wash cycle. M.R.’s parents’ washing machine was never tested for its efficiency in achieving its ultimate goal of completely cleaning the clothing put into it.

210. Dr. Shutler also confirmed that when he worked for the RCMP, he did not use control samples when items of clothing were tested for the presence of DNA. He agreed that a stained area on an item of clothing would likely be richer in DNA than one that was not. The reason for taking control samples is to see if background DNA can be located on the item of clothing elsewhere.

211. When apprised of Ms. Sloan’s testimony that DNA does not transfer or distribute evenly, Dr. Shutler agreed with that proposition “intuitively”. He concurred that a sock with ejaculate on it, for example, would not be expected to evenly distribute DNA to other items of clothing. He conceded as well that even though DNA may not have been found on the control sample, it does not mean it will be located elsewhere on the same item of clothing. In short, control sample confirmation for the presence or absence of DNA would not assist in determining how the DNA was transferred to the item of clothing. He also agreed that there is no scientific consensus in North America for how to acquire control samples for testing of items of clothing for DNA.

212. Further, Dr. Shutler was unaware that control sampling was at one point undertaken by CFS, but stopped, because it did not yield enough information. Control sampling may indeed not be cost-effective, however, testing in the area of stained items of clothing has its limitations as well. One simply can never know how DNA was deposited.

213. Dr. Shutler conceded as well that the Y STR DNA profile found in N.B.’s vaginal cavity was most likely the result of sexual activity.

214. The aim of Y STR testing is, of course, to determine to whom the profile belongs.

The Issues

215. Crown and defence counsel were agreed that I must, of course, apply a W.(D.) analysis to the evidence adduced at M.R.’s trial. Clearly, the credibility of M.R., N.B. and A.R. must be carefully assessed. Their reliability as historians for significant past events is very much worthy of consideration as well.

216. Essentially, in applying the law, I must acquit M.R. if I believe his testimony regarding the incidents in question, after I assess the evidence as a whole (see R. v. Hull, 2006 ONCA 26572 at paras. 4–5).

217. If I do not believe M.R., but his evidence nevertheless raises a reasonable doubt in my mind upon my assessment of the evidence in its totality, I must find him not guilty.

218. Even if I do not accept the evidence of M.R., nor does it raise a reasonable doubt, I must still be convinced of his guilt beyond a reasonable doubt based on the evidence which I do accept, if I am to convict him.

The Law

Credibility and Reliability

219. Last year, the Supreme Court of Canada reminded triers of fact of basic principles to be observed and followed in every criminal trial in R. v. Kruk, 2024 SCC 7. The Court held:

[59] 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 SCC 46, [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) . . .

[61] 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 SCC 22, [2009] 1 S.C.R. 716, at para. 23; R. v. W. (D.), 1991 SCC 93, [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 SCC 30, [2008] 2 S.C.R. 152, at para. 13).

[62] 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), 1991 BCCA 3956, 68 C.C.C. (3d) 146 (B.C.C.A.); R. v. S. (W.D.), 1994 SCC 76, [1994] 3 S.C.R. 521, at p. 533; R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19).

220. Later, the Court reminded trial judges of their roles in assessing the credibility of witnesses in the following passages:

[72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), 1997 SCC 324, [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.

[73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31; R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).

[81] 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, [2006] 1 S.C.R. 621). [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, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, 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.

221. I will, of course, apply these fundamental legal principles to the evidence called at M.R.’s trial.

Inconsistencies

222. Further, I will adhere to the general direction offered by way of an endorsement of the Court of Appeal for Ontario in R. v. A.M., 2014 ONCA 769 as follows:

[8] Several basic principles inform our decision regarding the trial judge's reasons for judgment.

[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), 1992 SCC 56, [1992] 2 S.C.R. 122, at p. 134 S.C.R.

[10] Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.

[11] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, 1962 SCR 469.

[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 ONCA 8733, [1994] O.J. No. 2086, 93 C.C.C. (3d) 347, at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. 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 about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, 2008 SCC 24, at para. 31.

[15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, 2008 ONCA 161, 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay, 1994 BCCA 8749, at p. 471 C.C.C.

The Meaning of Proof beyond a Reasonable Doubt

223. In a very recent case I decided, R. v. McLaren, 2023 ONCJ 92, I adverted, as I must, to the meaning of “reasonable doubt”. I had the following to say:

181. The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.

182. Recently, my colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning of reasonable doubt:

[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.

[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, 1997 SCC 324, [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:

• The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

• A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

• Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

• On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

• In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[42] Three years later, in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13 that: In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.

W.(D.)

224. Further, in assessing the evidence of an accused, I will bear in mind the dicta of L’Heureux-Dubé J. in R. v. L. (D.O.), 1993 SCC 46, [1993] 4 S.C.R. 419, where she stated:

Appropriate Test

79 The respondent submitted a brief to the trial judge with regard to the appropriate test for weighing the evidence and in particular with regard to assessing the credibility of witnesses. He argued that the proper test was whether an account given by, or on behalf, of, an accused might "reasonably be true". The trial judge did not agree and explained:

Whether an account given by, or on behalf of, an accused might reasonably be true, is not in my view the honest and proper and established test of whether the Crown's evidence should be rejected. It is simply one factor in assessing the overall impact of the evidence as a whole. If one were to determine criminal cases simply on an academic test, unrelated to all the other facts, of whether something might reasonably be true, much of the impact of truly and compellingly credible Crown evidence such as that here, would go for naught, and truth would be subjugated by plausibility.

In my view, the trial judge was correct, as was O'Sullivan J.A. who succinctly enunciated the test as follows (at p. 317):

The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, the Crown has proved its case beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, the accused must be acquitted.

This is the proper test on which Cory J. in R. v. W. (D.), 1991 SCC 93, [1991] 1 S.C.R. 742, at pp. 757-58, expanded as follows:

A trial judge might well instruct the jury on the question of credibility along these lines:

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

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

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.

The respondent's submissions on this point, also made to us, cannot succeed.

Analysis

Do I believe the evidence of M.R.?

225. M.R.’s defence was essentially one of denial. For the most part, he was unshaken in maintaining that he never inappropriately touched N.B.

226. However, as he admitted himself, his memory was not a good one. Apart from how this affects the reliability of his evidence, I find that M.R. intentionally chose not to remember some of the details of his interactions with N.B., and with A.R. as well. The frequency of marijuana gummy consumption is a prime example. M.R. maintained that it was only the one time that he gave gummies to both girls. I firmly disbelieve him on that point. His stepdaughter, N.B. said otherwise, as did his biological daughter, A.R. Gummy use was, I find, casual and far more common in his PMQ for the couple of months he had A.R. in his care, and for the month or so he had N.B. sporadically under his roof.

227. M.R.’s claim to have fed peanut butter to the girls to dissuade future desire to use gummies on their part is patently ridiculous. It makes no sense. The girls clearly would have decided for themselves whether they enjoyed the high brought on by the cannabis edibles. Further, he knew in his own mind that N.B. was already an avid marijuana enthusiast. He was clearly inclined to engage her in a pastime both he and she enjoyed. A.R. essentially confirmed this by agreeing with the evidence of N.B. that gummies were a weekend routine after her father, M.R., allowed her to try one for the first time.

228. I squarely reject M.R.’s insinuation that N.B. fabricated the allegation against him in retaliation for the imposition of his rules governing her conduct. The reality was that N.B. was a newcomer to M.R.’s life when they reconnected after a chance meeting at Michael’s in Pembroke. He had played no role in her life for a period of at least a few years after he had separated from her mother. It was clear from his own evidence as well that there were no consequences imposed for any breach of the rules. If N.B. wanted to stay overnight at a male friend’s place, or be on her phone, or not do chores, she could have left the PMQ and stayed elsewhere. She had other options at B.T.’s place, where she was staying in any event in accordance with the loose, ‘week on, week off’ arrangement M.R. and B.T. had worked out for N.B.

229. To my mind, in assessing the dynamic that existed between M.R. and N.B., it is quite absurd for the defence to suggest that N.B. invented a story about M.R. as a reprisal for imposing rules upon her. Their time together was short-lived. By no means did she need to escape M.R.’s ‘de facto’ custody of her, or power over her. She had the freedom and the means to walk away whenever she wished.

230. Nor was N.B. so angered and upset by M.R.’s disappearance from her life that she would go to the length of falsely accusing him. On the contrary, rekindling a relationship with A.R. and M.R. gave her more options and seeming security. She was a child, who needed some sense of permanence and stability. However, M.R. was only lukewarm in his willingness to assist her. He knew she was taking essentially her worldly belongings in her backpack with her every day. He took no concrete steps to ensure that she was welcome in his home. Instead, he tried to hide her presence at his PMQ from his ex-partner and her mother, A.B., and to an extent, from his younger daughters, E. and Q., out of fear that word would trickle back as to N.B.’s whereabouts to A.B.

231. I do not accept M.R.’s portrayal of himself as a rescuer or safe haven for N.B. While he may not have wanted her out on the street, I find that he had other designs for her. He had formed his own impression of the type of individual she was. Her potential promiscuity was known to him. I find that he was looking for an opportunity to test the waters for himself.

232. I am inclined to accept N.B.’s evidence that she did her laundry at B.T.’s place. It was possible that M.R. may have done some of N.B.’s at his parents’ place, but again, there appears to have been no need for it. At one point in M.R.’s evidence, he agreed that N.B. took everything in her backpack with her. Only later did his evidence change to suggest that she would not have wanted her dirty clothes kept in the same place as her lunch – her backpack that she toted everywhere with her.

233. I find that M.R.’s evidence of co-mingling his laundry with N.B.’s, including the semen-stained sock he used to masturbate, was a feeble attempt at explaining away damning DNA evidence (i.e. his profile being found in the vaginal swab done on N.B.). If anyone was capable of fabrication, it was M.R.

234. As a matter of logic and common sense, I reject almost all M.R.’s evidence outright.

Does the evidence of M.R. raise a reasonable doubt?

235. Regarding M.R.’s denial of having provided N.B. with a marijuana gummy on the night in question, I do entertain a reasonable doubt about whether he did or not. It is supported by the evidence of A.R.

236. What was clear from the testimony of A.R. and N.B. was that both girls were permitted to indulge in edibles on weekends. The incident, by everyone’s account, happened on a Sunday.

237. I doubt that M.R. would have promoted or encouraged marijuana consumption on a school night. School nights include Sundays. He would have wanted the children to go to school showing no signs of drug consumption. M.R. was keen to keep the girls’ marijuana consumption with him a secret.

238. N.B. could have helped herself to a marijuana gummy on the Sunday in question, but I cannot be sure at all that it was M.R. who gave it to her.

On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in the guilt of M.R.?

239. My assessment of the evidence as a whole adduced at M.R.’s trial does not, of course, end with the completion of my inquiries under the first two branches of W.(D.). I must articulate what I am convinced of beyond a reasonable doubt.

240. Turning my mind to the evidence which I do accept, I find that:
     a) N.B. was a credible witness, and for the most part, a reliable historian, notwithstanding the passage of time between when she testified, and when the act complained of occurred,
     b) any inconsistencies in her evidence were due to the passage of time, and the tendency for precise memory to fade with time, as opposed to any intention on her part to be untruthful, and
     c) her evidence was reliable in that she understood what M.R. did to her of a sexual nature, and she intended to take immediate action to report his conduct to the appropriate authorities, to have the incident investigated and to have all physical evidence collected.

241. I conclude specifically based on my acceptance of most of N.B.’s evidence, and the largely noncontentious scientific evidence adduced at M.R.’s trial that:
     a) late in the evening of October 25, 2020, N.B., A.R. and M.R. were watching movies while sitting on the couch in the living room of his PMQ,
     b) A.R. went to bed,
     c) N.B. and M.R. stayed up,
     d) N.B. was sitting on M.R.’s stomach as was her habit since she was a child and they lived together,
     e) M.R. tried to slide N.B. toward his crotch area,
     f) N.B. resisted his attempt to do so,
     g) M.R. reached under her thigh and tried to loosen the drawstring of her shorts unsuccessfully,
     h) M.R. then slid his hand into the leg of N.B.’s shorts and fondled her vagina with his hand over top of her underwear,
     i) next M.R. slid one or two of his fingers underneath her underwear to digitally penetrate N.B.’s vagina,
     j) as M.R. was sexually touching N.B., he was occasionally asking her if she was okay with it, to which N.B. repeatedly responded she did not know,
     k) N.B. was either under the influence of marijuana at the time or in shock at what was happening, such that she felt numb in her vaginal area,
     l) N.B. was at a loss to know how to respond or to seek assistance for herself,
     m) N.B. was texting her ex-boyfriend Z., his friend I., and others at or about the time the sexual touching was taking place,
     n) M.R. pulled her down to lay next to him and took her phone away from her momentarily,
     o) N.B. pleaded for its return; M.R. eventually relented,
     p) M.R. then asked her if she wished to play video games or watch a movie,
     q) N.B., in response, told him she wanted to go to bed, and did so,
     r) M.R. checked on N.B. while she was in bed asking for her assistance to log out of an application open on his phone,
     s) N.B. obliged,
     t) N.B. resolved that night to report the incident at school the next day and did so,
     u) N.B. provided a statement to police about what had occurred and attended at PRH for a SAEK,
     v) N.B. handed over the underwear she was wearing the previous night and submitted to a vaginal swab sought by Ms. Valiquette, a Sexual Assault Nurse Examiner,
     w) a cut out of the crotch area of N.B.’s underwear and the vaginal swab taken from her, after forensic analysis done by CFS, revealed M.R.’s DNA profile in both,
     x) no scientific method existed for determining the bodily fluid or substance transferring from M.R. to leave a DNA deposit by him on N.B.’s clothing or in her vagina,
     y) the CFS expert calculated the probability that someone other than M.R. could have deposited the DNA found on N.B.’s underwear was one in one trillion, and
     z) the CFS expert calculated the probability that someone other than M.R., or a member of his patrilineage, could have deposited the DNA in her vagina was one in two thousand.

242. Overwhelmingly, I am persuaded well beyond a reasonable doubt, upon consideration of the above findings, that M.R. sexually touched N.B. by digitally penetrating her vagina.

243. The forensic evidence was, to my mind, in many ways unnecessary. I believed N.B. on all the core aspects of her testimony. Ms. Sloan’s findings were an authentication of N.B.’s account. It was the ‘coup de grace’ for M.R.

244. None of the defence evidence including the testimony of Dr. Shutler shook my firm belief that M.R. did to N.B. what she said he did to her. The lack of control samples taken from N.B.’s underwear, incidental transfer of background DNA and Founders’ Effect were valiant but ineffective attempts by the defence to call into question and raise doubts about the confirmatory value of the scientific evidence provided by CFS.

245. In short, I believed N.B.’s account. The forensic evidence served to conclusively corroborate what N.B. said M.R. did to her.

The Inconsistencies

246. I consider the following to be the major inconsistencies in the evidence of N.B.:
     a) N.B. told police that she consumed a marijuana gummy on the day prior to M.R. having sexually touched her, whereas at trial she testified that he gave her one on the night of the incident, and
     b) N.B. told police that his hand was “kinda” still in her shorts when M.R. pulled her down to lay beside him, whereas she testified that when he pulled her down, his hand was no longer inside her shorts.

247. I cannot find that N.B. was able to explain in a satisfactory manner the reason for the inconsistency as to when she consumed the marijuana gummy, be it Saturday, October 24, 2020, or Sunday, October 25, 2020, or both. Accordingly, I entertain a reasonable doubt about whether a gummy, which had the potential for overcoming resistance on the part of N.B., was given to N.B. prior to the sexual touching occurring on Sunday, October 25, 2020.

248. On the other hand, I find that there was ultimately no inconsistency in what N.B. said to police about whether M.R.’s hand was still inside her shorts after he pulled her down to lay beside him on the couch, and what she said about that sequence of events in Court. As she explained in her testimony, in response to the question:

Q. And the way it seems when you were talking to the officer is that his hand was still in your shorts when he moved you to lay beside him. Is that what you were meaning to tell the officer that when he was pulling you by the arm to lay you beside him, that your hand, his hand, was still in your shorts?

A. No, he had taken it out by then.

Q. Okay, so you are saying he removed his hand prior to pulling you down beside him?

A. Yes.

249. It is clear to my mind that M.R. removed his hand from beneath N.B.’s underwear prior to laying her down beside him. I am satisfied that N.B. has adequately explained the mechanics of what was occurring at that moment in time. In essence, there is no inconsistency between what she told police and what her testimony on that point was.

250. Nor was there any inconsistency in how N.B. ended up on M.R.’s stomach prior to the commencement of the sexual touching. He may well have thrown her out of the ‘coveted spot’ on the couch, but later, I find, he invited her back to sit on his stomach.

251. Two peripheral inconsistencies/omissions in my view were:
     a) N.B.’s initial lack of memory regarding the playful pinching of her legs which M.R. would sporadically engage in during their time spent together from late September to late October 2020, and
     b) the timing of M.R.’s apology to her after the sexual touching occurred.

252. N.B.’s forgetfulness in so far as the pinching was concerned was not deliberate or deceitful in any way. It was simply a nonfactor for her at the time of giving her testimony. It was hardly at the forefront of her mind, nor would I expect it to be.

253. Further, I find that M.R. did in fact apologize to N.B. The first time may have been immediately following his inappropriate touching of her and N.B. no longer remembered its occurrence. The second time was the morning after. The apology was made because M.R. knew how morally and criminally wrong his conduct had been.

Conclusion

254. In sum, I am more than convinced beyond a reasonable doubt in M.R.’s guilt after a complete review of the evidence called at his trial.

255. For the above reasons, I must convict him for sexually touching N.B. contrary to s. 151 of the Code.

256. I will find him not guilty of administering an “overpowering drug”, specifically a 10 mg THC gummy, to overcome any resistance from N.B. to his sexual advances upon her contrary to s. 246(b) of the Code. I cannot be sure that M.R. gave her any gummies on the Sunday night, October 25, 2020. He may have during the previous Saturday evening, October 24, 2020, but I highly doubt the effects of the drug would last into the late evening hours of the next day when he digitally penetrated N.B. For her part, N.B. could have helped herself to a gummy on the Sunday and felt the effects of the THC in consequence of her own conduct, not M.R.’s, but that is purely speculative.

257. Assessing the evidence as a whole, I am left with a reasonable doubt as to whether M.R. gave N.B. any intoxicating drug on the night in question prior to sexually touching her.

DATED: May 16, 2025

March, M.G., J.

Endnotes

[1] A Rowbotham Order is obtained following a successful application to a court of competent jurisdiction granting relief under s. 7 of the Canadian Charter of Rights and Freedoms conditionally staying the criminal proceedings pending the Attorney General funding defence counsel at legal aid rates. This application is referred to as a “Rowbotham” Order in connection with the decision of the Court of Appeal for Ontario in R. v. Rowbotham (1988) 25 O.A.C. 321, [1988] O.J. No. 271, 41 C.C.C. (3d) 1.

[2] In R. v. Mohan, [1994] 2 SCR 9, the Supreme Court of Canada articulated the following criteria to determine the admission of expert evidence:
i. Relevance,
ii. Necessity in assisting the trier of fact,
iii. The absence of any exclusionary rule, and
iv. A properly qualified expert.