COURT FILE NO.: CR-20-00000594

DATE: December 21, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.O.

Applicant

V. Aujla, for the Crown

A. Alton, for M.O.

HEARD: October 14, 15 and 18, 2021

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Shaw J.

Introduction

[1] The accused, MO, has pleaded not guilty to one count of break and enter and committing the indictable offence of sexual assault and sexual interference contrary to s. 348(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, (the “Code”), one count of sexual assault contrary to s. 271 of the Code and one count of touching the body of a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Code. All charges relate to a single alleged sexual assault that occurred in the early morning of January 19, 2019, in MV’s bedroom. MV was 13 years of age at the time. She lived with her parents, grandparents and brother in a home located in Brampton, Ontario. The accused was tried by me, sitting without a jury, over three days in October 2021.

[2] The Crown called five witnesses including the complainant, her mother, father, grandmother, and the officer in charge. The defence did not call any evidence.

[3] There is no dispute that MO was in MV’s home on January 19, 2019, and that he was a stranger to MV and her family. MO entered the home by way of the front door and was first seen by all witnesses who testified on the top floor of the home where the bedrooms are located. When MO tried to go down the stairs to the main level, there was an altercation involving MO, and MV’s father and grandfather, as they tried to block MO from going down the stairs. The altercation continued down the stairs to the main level of the home where MO was restrained until the police arrived.

[4] MV alleges that while on the top floor of the home, MO entered her bedroom and sexually assaulted her. Only MV can testify about what is alleged to have occurred in her bedroom, that forms the subject of the charges before the court. She says that MO entered her bedroom around 4:00 a.m. and touched and squeezed her buttock without her consent. She says that she slapped his hand away and walked out of her bedroom, followed by MO. This was when the altercation occurred between MO and MV’s father and grandfather.

[5] It is not in dispute that MO was the person who was arrested that day in MV’s home and charged with these offences.

[6] Counsel agreed that if I find, beyond a reasonable doubt, that MO touched MV as alleged, then he is also guilty of the offence of break and enter and committing an indictable offence. If I find that he did not sexually assault MV, counsel agreed that I am to consider the lesser but included offence of entering a dwelling-house with the intent to commit an indictable offence contrary to s. 349(1) of the Code.

Analytical Framework

Reasonable Doubt

[7] At all times, the onus to prove guilt of an accused beyond a reasonable doubt remains with the Crown. Each person charged with a criminal offence is presumed innocent and this presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. At the end of hearing the evidence and submissions, if I am not satisfied that the Crown has proven any element of the offence charged beyond a reasonable doubt, the accused will be acquitted of the charge.

[8] A reasonable doubt is not an imaginary or frivolous doubt. It is based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. As noted by the Supreme Court in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. After considering all the admissible evidence, if I am sure that MO committed the alleged offence, then I must convict him because I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

Assessing Credibility and Reliability

[9] In R. v. Hall, 2021 ONSC 28, Goodman J. reviewed some general principles in credibility assessments at paras. 23-36. I summarize his review as follows.

[10] When assessing credibility, I can consider how reliably or accurately the witness recalls events and the way the witness presents his or her evidence. This includes whether they do so in a truthful and complete manner and whether they are being frank, biased, or careless with the truth: Hall, at para. 29.

[11] Credibility is often challenged using inconsistencies from either prior statements or evidence given by the witness, or from other evidence presented at trial. Inconsistencies can be expected, particularly as it relates to relatively minor issues or detail. If, however, the inconsistency respects a material matter that is central to the elements of the alleged offence, the court must assess whether that inconsistency demonstrates a carelessness with the truth that undermines the whole of the witness’s evidence: Hall, at paras. 30-31.

[12] In assessing a witness’s credibility and reliability, while I can consider the way a witness testifies, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261.

[13] Further, it is open to a trier of fact to believe all, none, or some of a witness’s evidence: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, at para. 143.

[14] Where there are significant inconsistencies or contradictions within a principal Crown witness’s testimony, or when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.(W.) (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at para. 15, leave to appeal refused, [1994] S.C.C.A. No. 290.

[15] In R. v. M.(A.), 2014 ONCA 769, 123 O.R. (2d) 536, at paras. 12-13, the Court of Appeal noted that 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 he or she has said on other occasions, whether or not under oath. Inconsistences may arise not just from a witnesses’ evidence at trial, but from what witnesses may have said differently in other instances. Some inconsistences are minor or deal with more peripheral issues. Some are material. Material inconsistencies, about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth that should concern the trier of fact.

[16] Reliability is separate from credibility. Credibility focuses on a witness’s veracity. Reliability has more to do with accuracy – the ability to observe, recall and recount events that are in issue: R. v. C.(H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue.

Videotaped Statements under s. 715.1

[17] MV was 13 at the time of the alleged assault. On consent, her out-of-court statement given to the police was admitted for the truth of its contents pursuant to s. 715.1 of the Code. Provided certain conditions are met, that provision provides for a statutory exception to the rule that hearsay is inadmissible.

[18] Children will have a better recollection of events shortly after they occur. A videotape statement made within a reasonable period after the alleged offence will reflect a more accurate recollection of events than will testimony given later at trial. Section 715.1 of the Code enhances the ability of the court to find the truth by preserving a very recent recollection of the event in question; R. v. C.C.F., 1997 306 (SCC), [1997] 3 S.C.R. 1183, at paras. 17-19.

[19] If defence counsel elicits evidence which contradicts any part of the video statement, that does not render those parts inadmissible. The trial judge may still conclude that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial; C.C.F., at paras. 47-49.

Circumstantial Evidence

[20] The Crown relies on some circumstantial evidence. Circumstantial evidence is different from direct evidence and requires an inference to be drawn from the evidence to the fact it is offered to prove. When dealing with circumstantial evidence, in order to find MO guilty of the offences before the court, the court must be satisfied that MO’s guilt is the only reasonable inference to be drawn from the totality of the circumstantial evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30 and 55. As Cromwell J. held at para. 71: “[I]t is fundamentally for the trier of fact to draw the line… that separates reasonable doubt from speculation.”

Collusion

[21] The defence argues in this case that the evidence of MV was tainted by inadvertent collusion. The term collusion includes deliberate collusion where witnesses fashion their evidence to appear to be reciting a consistent and reliable story; R v. C.G., 2021 ONCA 809, at para. 28. The other type of collusion is referred to as “inadvertent collusion” and occurs where one witness discusses the event with another witness with the consequence that the evidence of one or both may be altered; C.G., at para. 28. A witness’ evidence may be inadvertently impacted by hearing the evidence of other witnesses which can have the affect, either consciously or unconsciously, of impacting their description of the events.; R v. B. (C.) (2003), 2003 32894 (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 40.

[22] Inadvertent collusion impacts the reliability of a witness’ evidence. For this reason, in C.G., the court suggested, at para. 30, that a more accurate description would be “inadvertent tainting” rather than “inadvertent collusion”.

[23] Innocent collusion occurs when, through conversation, false memories are implanted and overwhelm independent recollection; R. v. E.M.M., 2021 ONCA 436, at para. 19. In E.M.M., the court cautioned that triers of fact must be cautious about concluding that a witness’s evidence is no longer independent and has been tainted simply because of a conversation. It is human nature to discuss what happened immediately after an offence takes place: E.M.M., at para. 19. Where inadvertent collusion has occurred, the court must closely examine what impact the innocent sharing of information may have had on the evidence of each of the witnesses who is a party of the exchange: C.G., at para. 32.

Elements of the Offence

[24] To find MO guilty of sexual assault contrary to s. 271 of the Code, the Crown must prove the following essential elements beyond a reasonable doubt:

a. That MO intentionally applied force to MV;

b. That MV did not consent to the force that MO intentionally applied;

c. The force applied took place in circumstances of a sexual nature; and

d. That MO knew that MV did not consent to the force that MO intentionally applied.

[25] In R v. R.V., 2021 SCC 10, 455 D.L.R. (4th) 253, a recent decision from the Supreme Court of Canada, the court stated, at para. 51, that a person commits a sexual assault by applying force intentionally to another person, directly or indirectly, in circumstances of a sexual nature. Force has been interpreted to include any form of touching: at para. 52.

[26] To find MO guilty of sexual interference contrary to s. 151 of the Code, the Crown must prove the following essential elements beyond a reasonable doubt:

a) That MV was under 16 years of age at the time;

b) That MO touched MV; and

c) That the touching was for a sexual purpose.

[27] Factors to consider in determining if the touching is sexual include the part of the body that is touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and any other circumstance surrounding the conduct, including threats that may or may not be accompanied by force: R v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, at p. 302. Furthermore, in R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, at para. 13, the Supreme Court noted that all the circumstances surrounding the assault are relevant to determine whether the touching was of a sexual nature.

[28] In R.V., the Supreme Court cautioned trial judges about jury instructions that use the word “force” in sexual assault and “touching” in sexual interference. The touching for sexual interference is the same as touching for sexual assault.

[29] MV was under the age of 16 at the time of the alleged occurrence. The evidence is that MO did not ask her age or make any inquiries of her age. Under s. 150.1(1) of the Code, it is not a defence to a charge under s. 151 that the complainant consented to the activity. Pursuant to s. 150.1(4) of the Code, It is also not a defence that the accused believed the complainant was 18 years of age or more at the time of the alleged offence unless the accused took all reasonable steps to ascertain the age of the complainant. This places an evidentiary burden on the accused to present evidence for the court to find that accused believed the complainant was the required age and took all reasonable steps to determine the complainant’s age: R v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at paras. 54-55.

[30] “All reasonable steps” is highly contextual and fact specific. The more reasonable an accused’s perception of the complaint’s age, the fewer steps are required to satisfy this standard: W.G., at para. 58. There is no exhaustive list to consult to determine what qualifies as “all reasonable steps”. They are steps that a reasonable person would take, in the same circumstances known to the accused at the time, to ascertain the complainant’s age: W.G., at paras. 60-62.

Review of the Evidence

i. Agreed Statement of Facts

[31] An agreed statement of facts was filed as an exhibit. There is an agreement that identity is not an issue and that it was MO who was involved in the occurrence before this court. It is also agreed that Acting Sergeant Philip Yake’s evidence is as follows:

• He was dispatched to the complainant’s home located in Brampton at 4:01 a.m. for a break and enter and arrived at the residence at 4:07 a.m.;

• When he entered the premises, he saw the complainant’s father, NV detaining MO in a “rear naked choke” on the floor in the living room and that NV let go when the officer arrived;

• A “rear naked choke” is a form of chokehold;

• The officer detained MO at 4:08 a.m. for breaking and entering;

• The officer believed that MO was heavily intoxicated;

• MO was escorted out of the house at 4:09 a.m. where he was transferred to the custody of another officer;

• Acting Sergeant Yake then returned to speak to the family in the home;

• At 4:17 a.m. Acting Sergeant Yake told the other officer that MO was to be further arrested for the offences of sexual assault, assault, and mischief;

• Acting Sergeant Yake also inspected the front door of the home and observed no noticeable damage. He also noted that the locking pins at the top and bottom of the second door were not deployed and, as a result, the double doors could be pushed open even with the deadbolt being engaged from inside;

• He also noted that MO’s car was parked across the street, less than 50 metres away from the front doors of the residence; and

• MO’s identity was confirmed at the scene.

ii. Video Surveillance

[32] The officer in charge testified that video surveillance was obtained from a home near MV’s home. The one-hour surveillance is dated January 19, 2019 and commences at 3:30 a.m.

[33] In that video, a black figure can be seen approaching a few houses before running to the entrance of MV’s home. The black figure is first seen at a distance at 3:50 a.m. walking beside a fence towards a house. At 3:52 a.m., a black figure is seen running towards the house adjacent to MV’s home and going towards what appears to be the entrance to that home. This black figure is next seen at 3:54 a.m. leaving that house and running along the sidewalk to MV’s home. The black figure is seen climbing the steps to the front door of the home at 3:54 a.m. A light is then seen where the front door is located, which the Crown argues was this black figure opening the front door. At 3:56 a.m., a light is seen coming on in one of the upstairs windows of the home. At 3:58 a.m., a light is seen again at the front door to the home and then at 4:01 a.m., there appears to be shadows of persons in the interior around the front entrance. At 4:06 a.m., a police car is seen arriving with its lights activated and an officer is seen exiting the car and entering the residence.

[34] Based on this video surveillance, assuming this black figure was in the home until the police arrived, approximately 12 minutes elapsed from the time light is seen at the front door, suggesting it opened and the black figure entered, and the police arriving.

iii. Evidence of MV

MV is in grade 11. In January 2019, she was 13. Given her age, on consent, her evidence in chief was her statement to police pursuant to s. 715.1 of the Code. She also testified in person and was cross-examined by the defence. Her video-taped statement to the police commenced at 8:14 a.m. and ended at 8:55 a.m. on January 19, 2019. MV adopted the videotape statement.

[35] MV told the officer that she woke up at 4:00 a.m. and saw her bedroom door was open. It is normally closed. She sleeps alone. She said she has a habit of checking what time it is when she wakes up. She got up, closed the door, and turned to walk back to her bed. She said the house was quiet at the time.

[36] She was about to get back into bed when she heard her door open. At trial, her evidence was that she walked two to three meters back towards her bed when she heard the door open. She described hearing a creaking sound. She also testified at trial that she was standing right next to her bed, on the left side, facing the door, when she heard this sound.

[37] In her statement she said she thought it was her father entering her room but when she turned around, she saw someone she did not know. She said this stranger looked in her bedroom. He looked shocked as his eyes widened when he saw her. She said he started to walk slowly towards her taking cautious steps. She said she asked him who he was and how he got in and all she recalls him saying, repeatedly, was “Tinder date”.

[38] MV told the police that she was shocked, a little scared, and initially thought she was dreaming. She told the police that he asked her what her name was in a quiet voice, but she did not answer.

[39] MV told the police that this person was holding his cell phone which had the flashlight on. She said that her bed has built in LED lights that she keeps on at night so she could see a “little bit”. The light was on in the corridor. She said it is not normally on.

[40] MV told the police that this person walked towards her and stood beside her, to her right. She was standing beside her bed. Her evidence at trial was that he was one to two centimetres away from her. She told the police that the stranger grabbed and squeezed her buttock with his left hand, over the shorts she was wearing. She slapped his hand away and walked out of the room. She did not recall if he said anything when he grabbed her buttock.

[41] At trial, she testified that the stranger never said anything to her or asked her age, or what school she went to, or if she consented before he grabbed her buttock. She testified that she did not consent to the stranger touching her.

[42] MV told the police that probably three to four minutes elapsed from the time she first saw this person until she walked out of her bedroom.

[43] MV said that when she walked out of her bedroom, she screamed for her parents. She also told the police that she yelled out for her mother by her name. The stranger was still in her room when she walked out into the hallway with the intention to go to her parent’s bedroom. She then saw her parents coming up the stairs from the main level of the home. She told the police that her mother later told her that she saw this stranger in her own bedroom, that she thought it was MV, and that she and MV’s father went downstairs to look for the stranger.

[44] MV said that when her parents came up the stairs, her mother asked her who he was and MV mouthed back “I don’t know” and at that moment, the stranger came out of her bedroom and ran towards the stairs where her parents were standing. At trial, she testified that her mother mouthed to her “who is he” and MV said she did not know and then the stranger came out of her room.

[45] MV said that the stranger was pushing her father to go down the stairs, but her father blocked him. She could not explain how her father blocked the stranger, although she was watching them. She remembers her father asked him who he was. She said the stranger said things like, “you brought me in your home”, “your door was unlocked”, “It’s a Tinder date”, and “wrong house”.

[46] MV told the police that her grandparents, whose bedroom is beside hers, came out of their bedroom. Her grandfather tried to help her father block the stranger from going down the stairs. She said that the stranger pushed her father down the stairs, and her father grabbed the railing so he would not fall. She thought that the stranger pushed either her father or grandfather into the wall on the landing area of the stairs causing damage to the wall.

[47] According to MV, her mother then gave MV her cell phone to call the police, which she did, but her mother then took the phone and talked to the officer. She said the stranger tried going toward the front door on the main level of the home, but her father and grandfather stopped him at the bottom of the stairs. MV said she followed them down the stairs.

[48] MV recalled the stranger yelling to let him go, that it was a mistake and not to call the police. She heard him say that it was just a “Tinder date”.

[49] MV recalled hearing the sirens outside and the police arriving. She said her grandfather and father were in the family room holding the stranger down to prevent him from running away. She did not remember the details about how they were holding him.

[50] MV said she did not use Tinder but knew it was a dating app. She did not have a cell phone but an iPod. She did not have the Tinder app on her iPod. She denied inviting anyone to the house.

[51] MV did not know how this person got into the home. She did not notice any damage to the front door.

iv. Evidence of SV

[52] SV is MV’s mother. She works as an accountant. She testified that the family moved into the house in Brampton in 2017. Her mother, father-in-law and mother-in-law also lived in the home. They all had bedrooms on the top floor. Her mother was in India when this incident occurred. Her younger son shared the bedroom with her and her husband and slept in the same bed with them.

[53] She testified that she went to bed between 9:00 p.m. and 10:00 p.m. on January 18, 2019. It was a Friday and she worked all day. Some furniture was delivered to the home on January 18, 2019.

[54] SV testified that around 3:45 to 4:00 a.m., the door to the bedroom opened. The bedroom door, which is a double door, is normally locked. She explained that even when locked, the door can be opened if you push hard on it. On cross-examination she explained that it is her daily routine to lock the double doors that lead into their bedroom. She also said the reason she knew the doors were locked, in addition to it being her routine to lock them, was that she heard a loud noise that woke her when the doors were opened. She explained that she is a light sleeper. Her husband is a deep sleep and he did not wake up when the doors were opened. She agreed with the suggestion that the doors may have been unlocked if her husband had gotten up at some point during the night and left the bedroom but she insisted that they were locked given the sound she heard that woke her.

[55] She said that the light in the corridor (the hallway outside the bedrooms) was on. She said it is normally on. She saw someone holding a mobile phone with the flashlight on enter the bedroom.

[56] SV called out her husband’s name as she thought this person might be her husband. She agreed with the suggestion put to her on cross-examination that she was confused about what was going on when she woke up. When she called her husband’s name, this person, who was walking towards the bed, changed direction and entered the closet which is to the right of the bedroom door. She then called her daughter’s name as she saw her husband was in bed beside her and she thought it might be MV in the bedroom. When she did that, this person left the bedroom. She recalled that he was wearing a hoodie.

[57] When her husband, NV, woke up, SV told him that someone was in their home. On cross-examination she testified that her husband turned the light on when she woke him up and at that point, she looked at her watch and saw that it was between 3:45 a.m. and 4:00 a.m. Her husband got out of bed to leave the bedroom. SV told him not to leave as she wanted to call her father-in-law first as she did not know how many people might be in her house. Her husband then left the bedroom and she followed. She said both bedroom doors were open when they left.

[58] On cross-examination she agreed that this was not the first time she had woken her husband concerned that someone might be in their home.

[59] SV testified that she did not see anyone in the hallway outside her bedroom. She then saw MV come out of her bedroom and in a matter of seconds, a male also came out of her bedroom. She did not recall what her daughter said when this male came out of the bedroom. She recalled that he was wearing a hoodie and had a phone in his hand.

[60] SV testified that she was standing near the top of the stairs at this point, as was her husband. She did not speak to her daughter. SV also testified that while she could not remember, she believes she asked her daughter something like, “who is he?” Her daughter answered, “I don’t know”.

[61] She testified that the stranger was trying to go down the stairs and her husband stopped him. She said her husband was holding the stranger. Her in-laws came out of their bedroom. She told her father-in-law to help hold the stranger. SV was going to call 911. When she said she was calling 911, the stranger tried to run away. She heard him say “wrong house”. Her husband and father-in-law were trying to hold him. She said the wall on the landing area was damaged during the altercation.

[62] SV did not recall the stranger saying anything when he came out of her daughter’s room. She saw his face and did not recognize him. She smelled alcohol on his breath.

[63] On re-examination, she testified that when she called 911, she was very nervous, and the operator was telling her to calm down.

v. Evidence of NV

[64] NV is MV’s father. He testified that on the evening of January 18, 2019, he and his wife went to bed between 9:30 p.m. and 10:00 p.m. Some furniture was delivered that day. He stayed up watching a movie in bed until approximately midnight. His wife and son were sleeping. He said he is a deep sleeper and is wife is a very light sleeper.

[65] There are two doors leading to the bedroom which he said were locked.

[66] NV was shown a series of photographs of the exterior and interior of the house that were taken by the police. NV explained that the home is a corner lot located at the intersection of Jordensen and Hanbury. He explained that the driveway to the house is on Hanbury and the municipal address is Hanbury, but the front door to the house is on Jordensen. He identified the main door to the home, on Jordensen Street. It is a double door. Only one door is normally used.

[67] NV identified a photograph showing the stairs leading to the second floor, where the bedrooms are located. There is one flight of steps, then a landing, and then a second flight of steps to the right of the landing. There was a hole on the left wall in the landing area, which NV said was caused during the struggle with the stranger.

[68] He was shown a photograph, taken by the police, in which he identified a closed door at the far left of the corridor on the top floor of the house which led to his daughter’s bedroom. Beside that door was another closed door which he said was his parent’s bedroom. A temple is located against the wall across from the top of their stairs. To the right of the temple was an open bedroom door which he said was his mother-in-law’s bedroom. He testified that door is normally closed when his mother-in-law is away. The master bedroom is located to the right at the top of the stairs. In the photograph, only one door to the master bedroom is open. He also identified another door, to the left of his parent’s door, that was a storage closet. That door was open in the photographs.

[69] On cross-examination, NV testified that he could not recall if he left the bedroom after he went to bed on January 18, 2019, but he did not think he did. He recalled that he went to the washroom, which is attached to his bedroom. His daughter then called him via FaceTime as she thought somebody opened the door. He agreed that he told her it was just him, going to the washroom, and not to worry about it. He also agreed that he then checked the app on his phone to see if the door was open. He explained that he can operate the alarm system from his phone. This occurred before he fell asleep around midnight.

[70] He recalls his wife waking him around 4:00 a.m. by calling his name and tapping him. She said someone was inside the house. He told her he would check. She said she would call his parents as she did not want him to leave the bedroom alone. He got out of bed intending to go to the main floor to check the front door as he did not know if anyone was in the house. He said both bedroom doors were open when he left the bedroom. He said that the doors can be opened even if locked by pushing hard on the doors.

[71] On cross-examination, NV agreed with the suggestion that when his wife woke him up and said that someone was in the house, he initially did not take it seriously as it was not the first time his wife woke him concerned that someone was in the house. He agreed that his first instinct was to go check the front door. He agreed that while he could check it through the app on his phone, his wife always wanted him to check it physically. He also testified that when he woke up, he did not think about using the app on his phone to check the door.

[72] When he left the bedroom, his wife was behind him. He walked towards the stairs when he saw a person coming out of his daughter’s bedroom. His daughter came out as well. He could not recall who came out first. He said he was totally shocked at that point as he was not expecting that. He still thought that no one was in the house until he saw the intruder coming out of his daughter’s room. The intruder said nothing. NV said, “who are you”.

[73] NV’s evidence is that he held up his arm to block the stranger from going down the stairs. He held up his other hand in a fist. He recalled the stranger saying “Jordensen”. NV testified that while the stranger was pushing him to try to get down the stairs, he also heard the stranger say, “Tinder”, “let me go”, and “wrong address”. NV testified that he was initially holding the stranger against the wall at the top of the stairs.

[74] NV’s evidence is that while he was holding the stranger, his parents came out of their bedroom. His father came to help him. The intruder was pushing, and they ended up on the landing area. The altercation continued down to the main floor. NV said the struggle involved pushing but no punching. NV eventually restrained the stranger on his back and was holding him there when the police arrived and arrested MO.

[75] On cross-examination, NV testified that when he left the bedroom, intending to go downstairs, he did not step onto the stairs before he saw the stranger leaving MV’s bedroom. He described the stranger walking calmly towards him as if he was going to walk down the stairs to the front door. He agreed that he wanted the stranger to stay in the house until the police came. The stranger was trying to push past him to leave and NV was trying to stop the stranger. He did not know how the wall on the landing was damaged, but he believed it was caused by him pushing the stranger against the wall.

[76] On cross-examination, NV denied that he was holding MO in a choke hold or had his arm around his neck when the police arrived. NV recalled that MO said “why are you choking me” but he denied choking him.

[77] After MO was arrested, NV inspected the front doors as he was wondering how MO got into the house. There was no damage to the front door. At that time, he saw that the hinges were open so that even if the door was locked, it could still be opened from the outside.

[78] According to NV, he had checked to see that the front door was locked through the app on his phone. The alarm system for the house was not on. He was sure, however, that the front door was locked. He testified that he later checked the alarm app on his phone, and it recorded that the front door was opened around 4:00 a.m.

[79] On cross-examination, NV agreed that the house had a security system and one of the features was sensors on the doors that would beep if a door opens. The beeping can be heard throughout the house. He agreed that even though the alarm system was not armed that night, if a door opened there would still be a beeping noise

[80] After MO was arrested, NV agreed that the police told him not to go back upstairs or change anything as they wanted to take pictures of what it looked like when MO was there. He agreed that he would not have gone upstairs and closed any of the doors that were open.

[81] NV was not sure if anything was changed on the top floor before the police took photographs. He said he did not change anything. He could not recall if he went upstairs but may have done so to get a shirt. He did not remember closing any of the bedroom doors. He believes they went upstairs to change before they went to the police station to give their statements and he believes the photographs were taken before that.

[82] NV said the family stayed in the living room while the police were in the home.

[83] NV agreed that you did not have to push the front doors very hard to open them. He did not agree with the suggestion that a breeze could have opened the doors as he said they were metal doors.

[84] NV agreed on cross-examination that it was possible that MO slammed his father against the wall when they were still upstairs. He said everything happened so quickly. He described it as crazy.

vi. Evidence of LV

[85] LV is MV’s grandmother and NV’s mother. She resides with them. She recalls going to bed at 10 p.m. on January 18, 2019. She said that it is a habit of hers, most nights, to check the locks on all the doors before she goes to sleep. She said she checked the front doors that night. She said she checked only the front door that they normally use. She said that door was locked and closed. She did not check the lock on both doors, but she said that both doors were closed.

[86] Her evidence was that while sleeping, she suddenly heard a loud noise from outside their bedroom. She ran out and saw her daughter-in-law and son. Her son was close to the staircase. She also saw a stranger with his back to the wall. Her son was holding him by his shoulders. She asked her son who he was and how he got in. Her son said he did not know. She saw the stranger push her son. Her husband also came out of the bedroom and asked what happened. She told him to help. She said they ran after the stranger towards the stairs. Her son gave her daughter-in-law his phone to call the police.

[87] LV’s evidence was that her son stopped the stranger from running towards the front door. She said she and her grandchildren were in the living room. She testified that the stranger was on the floor and her daughter-in-law was talking to the police on the phone. The police arrived and arrested the stranger.

[88] On cross-examination, she explained that when she checked the front door, she just looked to see that the lock was turned the right way. She did not actually pull on the door.

[89] She said that she assumed that the side of the front door that they never used may have been left unlocked that day after the furniture was delivered as they had to open both doors to move a sofa into the house.

Position of the Parties

[90] It is the Crown’s position that MV’s evidence of MO touching her buttock is reliable, credible, and should be believed. The Crown argues that any inconsistencies with MV’s evidence are with respect to peripheral matters and are to be expected given her age at the time of the assault. The Crown also argues that MV adequately explained other inconsistencies and urges me to accept her explanations. The Crown’s position is that MV was unshaken on cross-examination with respect to her evidence regarding the charges of sexual assault and sexual interference.

[91] The defence argues that there are significant inconsistencies with MV’s evidence, rendering her evidence wholly unreliable. In addition, counsel argues that MV fabricated the evidence of MO touching her to protect her father as she was concerned that he would be in trouble given the altercation with MO. Furthermore, while not arguing intentional collusion, counsel for the accused argues that MV’s evidence was tainted by inadvertent collusion through discussions she had with her family members about what occurred on January 19, 2021, also rendering her evidence unreliable.

[92] Defence counsel contends that the totality of evidence presented by the Crown that I do accept is insufficient to establish MO’s guilt beyond a reasonable doubt.

Analysis and Findings

i. Video Surveillance

[93] I will first deal with the surveillance video. There was no admission that it was MO in that video approaching two houses before entering MV’s house at 3:54 a.m. In my view, the only reasonable inference, based on the totality of the evidence, is that the image in the surveillance video is MO. The figure on the video is seen walking up to the front door to MV’s house on Jordensen at 3:54 a.m. it is the same house identified by NV in the photographs taken by the police. The shadowy figure is not seen leaving the premises. A light is seen turning on upstairs in the home at 3:56 a.m., which is consistent with SV’s evidence that her husband turned their bedroom light on when he woke up. The police then arrived at the home at 4:07 a.m. and MO is found in the house, being restrained by NV. Based on the timing of events and MO’s admission that he was the person arrested that day in the home, in my view, the only reasonable inference is that he was the person seen in the videotape approaching two other houses before entering MV’s home and that he entered the home through the front door.

ii. MV’s Reliability and Credibility Findings

This case turns on the reliability and credibility of the Crown’s witnesses. I will first address the credibility and reliability of MV, as there were both internal and external inconsistencies with her evidence.

[94] The credibility of a witness is determined by addressing both credibility and reliability. Trial judges rely on several factors to assess the weight to be given to a witness’s evidence. Some of those factors are set out in Darkins v. Jones, 2020 ONSC 1299, at para. 11:

1. Does the evidence make sense?

2. Does the evidence have an internal consistency and logical flow?

3. Are there any prior inconsistencies, and if there are, how significant are they and are they adequately explained?

4. Is there independent confirming or contradicting evidence?

5. Is there an interest in the outcome or motivation to lie?

[95] None of these factors are alone determinative and I have considered each of these factors in assessing the credibility and reliability of the Crowns’ witnesses.

[96] It is also important to be mindful of some general principles that apply when assessing the credibility and reliability of a child witness. These principals were discussed by the Supreme Court of Canada in C.C.F. Even more than adults, children will have a better recollection of events shortly after they occurred than they will weeks or months later. A videotape made within a reasonable period after the alleged offence will reflect a more accurate recollection of events than will testimony at trial: C.C.F., at para. 19. At para. 47, the Supreme Court addressed how a judge should deal with inconsistences between a victim’s video statement and their evidence at trial:

If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously, a contradicted videotape may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude, as in this case, that the inconsistences are insignificant and find the video more reliable than the evidence elicited at trial.

[97] In C.C.F., the court referred to R v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, which also considered the standard by which a young child’s evidence should be assessed. In W.(R.), McLachlin J. commented at pp. 132-134 that the peculiar perspectives of children can affect their recollection of events and that the presence of inconsistencies, especially with respect to peripheral matters, should be assessed in context. She noted that a skilful cross-examination is almost certain to confuse a child, even if they are telling the truth. That confusion can lead to inconsistencies.

[98] In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (2d) 536, the court considered principles that apply when assessing evidence of a child and noted that no inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. In this case, MV was 13 years of age at the time. At trial, she was 15, soon turning 16. While she presented as an articulate and well-spoken person, she was nonetheless considered a child at the time of the alleged occurrence.

[99] During cross-examination, MV gave evidence inconsistent with her statement to the police and from the preliminary hearing. There were also inconsistencies between her police statement and her evidence at the preliminary hearing. There were also external inconsistencies between her evidence and that of her parents. I must therefore assess whether the inconsistencies were minor, material but not going to a critical issue, or significant and going to a critical issue: R v. Green, 2021 ONSC 6578, at para. 76. It will be open to me to determine whether I prefer her recounting of what transpired when she spoke to the police hours after the alleged occurrence, once I consider the inconsistences.

[100] When reviewing the inconsistencies amongst the witnesses, in my view, the context of the occurrence is important to consider. By that I mean that MV and her family were woken up at approximately 4:00 a.m. to find a stranger in their home. Both MV and SV say that they saw MO in their bedrooms, which would have been even more alarming. Furthermore, the total time that elapsed from the time MO was seen by SV in her bedroom until the police arrived was relatively brief. Based on the video surveillance, MO is seen entering the front door of the home at 3:54 a.m. According to the agreed statement of facts, the officer was dispatched to the home at 4:01 a.m. By that time, MO and NV were involved in an altercation with MO attempting to leave the home and NV blocking or restraining him. Thus, the events in the home occurred over mere minutes, in the middle of the night, with the occupants waking up to a stranger not just in their home but in their bedrooms. All witnesses spoke of being either confused or shocked by what was occurring. Given those circumstances, in my view, those are reasonable and understandable reactions to finding a stranger in your home and then seeing him exiting your child’s bedroom. In my view, the situation would have been chaotic. As NV described on cross-examination, everything happened so quickly, and it was “crazy”.

[101] I will now review the inconsistencies with MV’s evidence. In my view, a number of those inconsistences are with respect to peripheral issues, and others I consider to be the result of confusion caused during cross-examination, and for others there were reasonable explanations.

[102] During submissions, counsel for MO focused on the following inconsistencies:

i) Which hand MO used to touch MV’s buttock;

ii) Which side of MV’s buttocks MO touched;

iii) Whether MO asked MV her name;

iv) What side of the bed MV was standing on when MO touched her;

v) Whether MV called out to her mother as she left her bedroom after MO touched her;

vi) Whether MV called her father on FaceTime earlier, around midnight;

vii) Whether there was a beeping sound heard throughout the house when the doors opened even if the alarm was not on; and

viii) Whether MV or SV called 911.

[103] While I will review these inconsistencies in more detail, none of the inconsistencies, either when considered in isolation or in totality, cause me any concern with MV’s overall reliability or credibility as a witness. MV was unshaken on the core of her evidence that a stranger entered her room, walked slowly towards her, stood beside her, and touched and squeezed her buttock. The inconsistencies are ones that could be made by an honest witness who has been questioned, more than once, about what occurred during a few minutes under traumatic circumstances. I would be more concerned if this 15-year old witness could recall what occurred clearly without any inconsistencies in her description of what occurred given on different occasions to different people.

[104] On cross-examination, MV was shown a sketch of her bedroom that she drew at the preliminary hearing heard on December 18, 2020. The sketch did not include a keyboard and chair that was in her bedroom on the day of this incident. She did not agree with the suggestion that she forgot to include it in the diagram as her memory had faded by the time of the preliminary hearing. Her explanation was that the keyboard was new that day and that is why she forgot to draw it. She agreed that her bed and dresser were also new, as some furniture was delivered to the house on January 18, 2019. Although these items were also new, she did not forget to draw those items on the sketch as she had a bed and dresser before the new ones were delivered that day.

[105] In my view, MV’s failure to include the keyboard or chair was not an inconsistency but more of a gap in her evidence. Furthermore, her explanation that the chair and keyboard were new and only delivered that day is a reasonable and plausible explanation with respect to why she did not include those two items when she sketched the diagram. I also consider her failure to draw a keyboard and chair in a sketch she drew at the preliminary hearing to be a peripheral issue.

[106] On cross-examination, MV testified that the house had an alarm system. She agreed that if an exterior door to the house was opened, there was a beeping sound that you could hear throughout the house, including in her bedroom. At the preliminary hearing, she was asked about the alarm system and she said it was not on. Her evidence at the preliminary hearing was that if someone opened the exterior door to the house, you would not hear a beeping noise if the alarm was not on. At trial, she said that her answer at the preliminary hearing was not correct as even if the alarm is off, you still hear the beeping noise throughout the house if a door opens.

[107] Whether there was or was not a beeping sound if the doors opened when the alarm system was not on is a peripheral issue. While there is some inconsistency in MV’s evidence with respect to how the alarm system worked, it is a peripheral issue and any inconsistency has no bearing on my assessment of her reliability and credibility as a witness.

[108] During cross-examination, MV agreed with the suggestion that she talked to her father via FaceTime on January 19, 2019 around midnight, before she went to bed. She agreed that she did that as she heard the beeping noise from a door opening. This was evidence she recalled after she reviewed her transcript from the preliminary hearing when preparing for trial as she did not recall FaceTiming her father at the preliminary hearing. She did not agree that her father told her he just went to the bathroom and not to worry. Her evidence was that her father said he could check the door through the app on his phone.

[109] MV agreed that her evidence at the preliminary hearing was not true and that she now recalled FaceTiming her father. She denied the suggestion that she recalled this evidence only after speaking with her father prior to trial.

[110] While MV may have said that her evidence at the preliminary hearing was not true, in my view, that is not an accurate assessment of her evidence. She testified at the preliminary hearing about what she recalled at that time. I do not find that she was being untruthful when she gave that evidence but rather that is what she recalled at that particular moment. Memories are not static meaning that a person may not recall something at one point in time but then recall it later. Rather than truthfulness, the issue is whether MV’s evidence is reliable given the changes in what she recalls.

[111] Again, while this is an inconsistency, it is with respect to a peripheral issue and it has no bearing on my assessment of MV’s overall reliability and credibility as a witness. Furthermore, by identifying evidence that she failed to recall at the preliminary hearing and seeking to correct it indicates that MV was prepared to identify an inconsistency with her evidence which could have an adverse impact on her reliability and credibility assessment. In my view, a hallmark of a credible witness is one who is prepared to make admissions or give evidence that is adverse to their interest or could be used to challenge their reliability and credibility.

[112] MV was asked several questions during cross-examination about what side of her bed she was standing on when the stranger walked in and stood beside her and allegedly touched her buttock. On cross-examination, she explained that the left side of the bed was the side closest to the window. On the diagram she drew, looking in from the bedroom door, the window is to the left of the bed and the keyboard and chair are to the right of the bed. She agreed that the window is on the right side of the bed if you are standing in the bedroom facing the door. She agreed with the suggestion that when she got out of the bed, she got out on the side close to the window and when she started to walk back to bed, it was also towards the side of the bed near the window.

[113] MV was asked about her evidence at the preliminary hearing when she said she got out of bed on the right side and when she walked back to the bed she was on the left side. It was put to her that this was an inconsistency and she agreed. She testified on cross-examination that when she said she returned to bed she was on the side near the window.

[114] My impression was that there was some confusion when MV was asked numerous questions about what side of the bed she was standing on when MO approached her. That confusion was the result of asking questions about right and left without clarifying from what perspective you were looking at the bed. Right or left changes depending if you are looking at the bed from the bedroom door or standing beside the bed looking at the door. That confusion contributed to any inconsistency. When clarified using landmarks such as the window, MV’s evidence was consistent that she was standing on the side of the bed near the window. It is a peripheral issue if she got out of the bed on the right or left side.

[115] MV testified at trial and gave details to the police about what occurred in her bedroom that she did not recall at the preliminary hearing. For example, MV told the police when interviewed just hours after this incident that MO was standing to her right. That was also her evidence at trial. She also told the police that MO touched her with his left hand. This was also her evidence at trial. Lastly, on cross-examination, MV testified that MO touched her right buttock. She was not asked about this when she gave her videotaped statement to the police.

[116] At the preliminary hearing, MV could not recall on what side of her MO was standing when he touched her buttock, with what hand he touched her and what side of her buttock he touched.

[117] In my view, MV’s lack of recall at the preliminary hearing on these three issues indicates a gap in her memory and not an inconsistency. Furthermore, she was not shaken on the core issues about how and where MO touched her. Had MV testified at the preliminary hearing that MO touched another part of her body or did something more than squeeze her buttock, I would have considered that to be a material inconsistency on a critical issue that what have led me to have concerns regarding MV’s reliability and credibility as a witness.

[118] On cross-examination, MV agreed that when she walked out of her bedroom, she almost called out for her mother but then she saw her on the stairs, so she did not call out to her. She did not recall telling the police that she screamed for her parents as she left her bedroom or that she yelled for her mother by name. She also testified at the preliminary hearing that she called out for her mother by her name. On re-examination, she testified that she was about to yell for her mother, but she cannot now remember if she did. She said it was possible she called out to her mother when she left her bedroom.

[119] I do not find the inconsistency about whether MV called out to her mother or not to be troubling or concerning as it is important to consider the context and all the surrounding circumstances when she walked out of her bedroom. MV woke up to find a stranger in her room. Her evidence was that she thought she was having a dream. She said she was in shock. That stranger then approaches her and touches her buttock without saying anything to her other than “Tinder date”. I do not find it concerning if MV cannot now recall if she called out for her mother or was about to call out to her immediately after having a stranger touch and squeeze her buttock in her bedroom in the middle of the night. Furthermore, I consider this to be an inconsistency on a peripheral matter. She was consistent in her evidence that there was some sort of exchange with her mother when she came out of her bedroom with her mother asking her who MO was and she answering she did not know. Whether this was communicated orally or simply mouthed in my view is also a peripheral issue.

[120] MV’s evidence was that her mother handed her the phone to call 911 and then her mother took the phone from her. SV testified that she called 911 which is consistent with what MV initially said about her mother talking on the phone. MV also testified that she called 911 from the main floor. It was not clear to me whether this was another phone call but there was some initial consistency that SV was the person who talked to the 911 operator. Furthermore, who called 911 is a peripheral issue. What is not in dispute is that the police were dispatched to the house at 4:01 a.m., just seven minutes after MO is seen on the video surveillance entering the home.

[121] MV told the police that MO asked her name in the bedroom. She testified at trial that MO did not ask her name. In my view, it is a peripheral issue about whether MO asked MV her name as he walked toward her in the middle of the night in her bedroom.

[122] While I have found that many of the inconsistencies with MV’s evidence relate to peripheral issues, I have also considered whether the totality of those inconsistencies lead me to have concerns with her reliability and credibility. They do not. In that regard, I have considered MV’s age at the time of the assault and the statement she gave to police just hours after the assault. Memories can change or fade with the passage of time, particularly with children. While some of her evidence at trial contradicted what she told police, that does not render the videotape statement to be unreliable. I consider the inconsistencies to be insignificant. Furthermore, I have also considered the circumstances of the incident. MO was in the house for only seven minutes before the police were called. MV wakes up in the middle of the night and a stranger walks in her bedroom and then touches her buttock. No doubt a 13-year old would have been scared and shocked to see a stranger in her bedroom and would likely not recall, three years later, the details without inconsistencies.

[123] The inconsistencies described above were ones that could be made by an honest witness doing her best to recall what occurred in a few minutes in her home over three years ago. What is important is that on the crucial issues, MV was not shaken in her evidence.

[124] Defence counsel argued that MV’s description of what transpired in her bedroom did not have the ring of truth to it. He argued that MV’s evidence of MO walking slowly towards her, standing to her side, facing the door and reaching out and touching her buttock did not fit with the context of a break and enter and sexual assault in the middle of the night. In essence he says it defies common sense.

[125] In my view, MO’s behaviour prior to and following the sexual assault defies common sense. He is seen in the surveillance video approaching other houses before entering MV’s home. There is evidence that he had been drinking but no evidence of the extent of his impairment other than Officer Yake’s evidence in the agreed statement of facts that he was heavily intoxicated. He enters a stranger’s home, walks up the stairs to where the bedrooms are located and then enters more than one bedroom. The evidence is that he repeatedly says, “Tinder date” and after touching MV, says things like “wrong house” as he tries to force his way out of the home. Suggesting that the MV’s evidence about what occurred in her bedroom should not be accepted for defying common sense or that it does not have the ring of truth is of little assistance to the court as MO’s behaviour and conduct from the moment he is seen on the video surveillance until his arrest can also be described as defying common sense yet that is how he behaved

[126] I have also considered how MV presented as a witness. She answered all questions in a straight-forward manner. She readily admitted several inconsistencies and was not defensive about them. My impression was that she was trying her best to recall what occurred in a few terrifying minutes in her home over three years ago.

[127] I accept MV’s evidence that MO entered her bedroom, walked towards her, stood beside her, and touched and squeezed her buttock, after repeatedly saying “tinder date’. I accept her evidence that MO did not ask her if she consented or asked her age. I accept MV’s evidence that she did not consent to this touching. I accept MV’s evidence that MO was a stranger to her.

iii. SV’s and NV’s Credibility and Reliability Findings

[128] SV presented her evidence in a straight-forward fashion. It was apparent that English was not her first language. There were times that SV appeared confused or did not answer questions put to her on cross-examination. My impression was that she was not being evasive or defensive. Rather, she may not have properly understood questions put to her. I canvassed with her whether she wanted to testify through an interpreter, as her mother-in-law did, but she declined.

[129] For example, SV was asked numerous questions during cross-examination about which family members she spoke with on January 19, 2019 about the incident before she gave her statement to the police. She testified that she told her father-in-law to hold MO during the altercation. She testified that her mother-in-law told her that when they came out of their bedroom that they thought SV and NV were fighting. While defence counsel’s questions were aimed at what SV discussed with them after the incident, SV’s evidence is what her in-laws said to her during the altercation. In my view SV was not being deliberately evasive or defensive but rather was answering the question she thought was being asked her.

[130] Another area of confusion was where she and SV were standing when they saw their daughter and MO come out of the bedroom. In chief SV’s evidence was that neither she nor NV went down the steps to the main level before they saw MO leave MV’s bedroom. She said they were both near the stairs.

[131] SV was asked about her statement to the police when she said, “…my husband was about to go down. He was down almost half of the stairs, then that- I think my daughter came out, and that boy came out from her room.” When asked about this apparent inconsistency, her evidence was that she remembered her husband in the corridor, but she was not sure if he was on the stairs. She said that what she told the police was correct as she had a fresher memory when she spoke to the police on January 19, 2019 although she could not now recall that her husband went down the stairs before MV came out of her bedroom.

[132] It was then put to SV that her evidence at trial that she and NV were standing near the stairs was not true. SV seemed to agree with that suggestion. In my view, however, it was not fair to put to SV that her evidence at trial was not true. Her evidence at trial is what she remembers now. While it may be different than what she told police, that does not mean she was being untruthful. She readily agreed she told the police something different and then said her memory then was better than it is now and adopted what she told the police. That does not make her evidence at trial untruthful.

[133] When the police arrived, SV agreed they removed the intruder from the home and took some photographs of their home. She said the photographs, which were marked as an exhibit, would show the house exactly as it looked during this incident. She agreed that the police told them not to change or touch anything. SV was shown one of the photographs, which showed the doors leading to their bedroom. Only one door was open. SV did not agree with the suggestion that she was mistaken about both doors being open. She suggested that perhaps her husband or someone else closed the door when they were told to get their jackets before going to the police station. She insisted that both doors were open, despite what was shown in the photograph.

[134] No evidence was called with respect to the time that the photographs were taken. While NV testified it was before they went to the police station, I heard no evidence about what time that was. It is certainly possible that someone from the family, such as their son or one of the grandparents, went upstairs before the photographs were taken and closed a bedroom door. Furthermore, it is possible that SV was mistaken and only one of her bedroom doors was opened by the person she saw enter her bedroom. That does not, however, detract from my assessment that SV was a reliable and credible witness.

[135] I accept SV’s evidence that she woke up by a sound of her doors opening and that she saw MO in her bedroom. She and her husband then left the bedroom and saw MO leaving their daughter’s bedroom. SV was not shaken on that evidence. Whether or not both or only one of the bedroom double doors was opened by MO is a peripheral issue.

[136] Even when I consider all the inconsistencies in total, they do not detract from my assessment that SV was a credible and reliable witness.

[137] NV also presented his evidence in a straightforward fashion. The main inconsistency was how he restrained MO until the police arrived. According to the agreed statement of facts, the officer who attended observed NV holding MO in a choke hold. NV denied this. He described restraining MO with his arm around his waist.

[138] Whether or not NV was holding MO in a choke when the police arrived is a peripheral issue and does not detract from my assessment that NV was a reliable and credible witness. He was not shaken in his evidence, that I do accept, that he was woken by SV as she was concerned that someone was in the house, that when he exited the bedroom he saw MV and a stranger walk out of her bedroom, that he was shocked, that he then physically restrained MO so that he could not leave the house, that the altercation continued down the stairs, causing damage to a wall, and that he restrained MO until the police arrived, just minutes later.

[139] There were several consistencies in the evidence given by the witnesses. Both SV and NV testified that SV woke NV up as she was concerned someone was in the house. They both saw MO and MV walk out of MV’s bedroom. While NV was not sure who walked out of the bedroom first, he said he was shocked to see a male stranger walk out of his daughter’s bedroom. That was when he realized that SV was correct, and a stranger was in the house. In that moment, given his shock, it is not unexpected that he might not recall who walked out of the bedroom first.

[140] There was also consistency between SV and NV that the stranger walked towards them, calmly, and that he wanted to go down the stairs. They both testified that the stranger was pushing NV and that NV was trying to stop him from going down the stairs. There was also consistency with respect to what MV, SV and NV heard MO saying, such as “Tinder date”, and “wrong house”. There was also consistency that there was an altercation between MO and NV and that the grandfather joined in and that the altercation continued down the stairs.

[141] There were also consistencies with MV’s and SV’s evidence that this stranger had a phone in his hand and the flashlight was on.

[142] There were also consistencies with LV’s evidence that she and her husband came out of the bedroom and that her husband became involved in the altercation near the stairs that continued down to the main level causing damage to the wall on the landing.

[143] All witnesses testified that NV restrained MO on the main floor until the police arrived.

[144] Thus, while there were inconsistencies with evidence given by each witness, there were also several consistencies which I have considered in concluding that all witnesses were credible and reliable.

iv Inadvertent Collusion

[145] I must address whether the fact that the Crown’s witnesses discussed the events, may have resulted in inadvertent collusion leading one or more of them to alter their evidence and, if so, in what respect. I must assess whether the content and nature of the discussions that took place led to any impairment of the evidence given.

[146] Discussions of what occurred was inevitable, given the circumstances. It would be only natural that the family would have some discussion about the traumatic events that just occurred in their home. Such discussions on their own does not, however, mean there was any tainting of their evidence.

[147] To be clear, there is no suggestion of “advertent collusion” that would go to the credibility of the witnesses. The issue is whether there was a tainting of evidence that would go to the reliability of that witness’s evidence.

[148] The witnesses all acknowledge some discussion occurred on the day of the occurrence but there were inconsistencies about what was discussed and when they had these discussions. In my view, that is understandable. The family had a two-prong shock. First, they woke up to a stranger in their home and then SV and NV saw him coming out of their daughter’s bedroom. This was followed by a physical altercation which caused damage to a wall in the home. MV and SV observed this altercation. All of this occurred within minutes. Under these circumstances, it is understandable that there would be inconsistencies with respect to what the witnesses recall about when they discussed what occurred with each other and what was said.

[149] All witnesses said that they were in the living room after MO was arrested and the police were at the home taking photographs. This would create an opportunity for a discussion and therefore the opportunity for tainting. The first issue is whether any tainting occurred. The second issue is, if it occurred, what if any impact that has on the reliability of the witness’s evidence.

[150] As MV was the only witness in her bedroom with MO, there can be no tainting of her evidence with respect to what transpired in her bedroom as none of her family members were present.

[151] SV was cross-examined about when she spoke to MV about the incident. She did not agree with the suggestion that she spoke to MV about what had occurred, before they went to the police station to give statements to the police. She then said she was not sure if she spoke to her daughter before they went to the police station, but she knew she spoke to her daughter at some point that day about what occurred. She agreed that she may have spoken with MV before MV gave her statement to the police, but she could not recall.

[152] SV was asked about her statement to the police when she told the police that she spoke to her daughter for about one minute when the police came to the house to arrest MO. SV’s evidence was that this did not refresh her memory and she could still not recall when she spoke to her daughter that day about what happened.

[153] SV denied having any further conversations with her husband, daughter, or in-laws about what occurred after January 19, 2019

[154] LV did not agree that she spoke with her son or daughter-in-law before she talked to the police.

[155] NV believes the family watched TV while the police were in the home. He said he believed they talked about what happened before they went to the police station. He said that he and his family have not really talked about this incident since they gave their statements to the police.

[156] On cross-examination, MV’s evidence was that before she gave her statement to the police at the police station and before she spoke to her parents about what happened, she spoke to an officer in her home. She agreed that she and her family watched a movie together before they went to the police station. She agreed that she overheard her parents and grandparents talking, and she agreed that that she knew what they saw and heard when she gave her statement to the police. She also agreed that before she talked to the first police officer in her home, she told her mother that this person came into her bedroom and that she did not know him and had never seen him before. She denied talking to her grandparents about what occurred. She also agreed that she spoke to her parents a few times about what occurred since she gave her statement to the police. She denied that she discussed with them what happened at the preliminary hearing.

[157] On re-examination, she testified that what she overheard heard her parents and grandparents talking about before they went to the police station to give their statements was that her grandfather thought her parents were fighting and that is why they came out of their bedroom. She also heard her mother say that she thought it was MV in her closet.

[158] In her statement to the police, MV said that her mother had told her that she woke up to someone in their bedroom, that her mother initially thought it was MV and that she and NV went downstairs to see if anyone was in the house. MV’s evidence was that when she exited her bedroom, she saw MV and NV coming up the stairs. This was also her evidence at trial.

[159] SV and NV both testified that they did not go down the stairs before they saw MO and MV walk out of her bedroom. In her statement to the police, which SV adopted, she said that NV had gone down some stairs, but she could not recall that at trial.

[160] Defence counsel suggests that MV’s evidence of seeing her parents running up the stairs may therefore have been tainted by her mother telling her before she went to the police that she and her husband had gone downstairs first before they came back upstairs. This, he says, is evidence of a false memory being implanted in MV’s memory.

[161] Given what SV told the police, it is possible that when MV came out of her bedroom, she saw her father coming up some stairs, although NV did not recall going down the stairs when he testified. If MV made that observation, it would not, therefore, be a false memory implanted through discussions with her mother.

[162] Even accepting that MV’s evidence was tainted about whether her parents were running up the stairs when she first saw them when she came out of her room, it is a peripheral issue. Even if there was tainting on that one issue, there is no evidence of any other discussion with MV that may have tainted her evidence. It does not lead me to conclude, therefore, that her evidence that what occurred in her bedroom is untrustworthy.

[163] Thus, while there is evidence of some discussion of what occurred before the witnesses spoke to the police, any discussion was quite minimal. The only evidence of possible tainting is with respect to whether MV saw SV and NV running up the stairs when she came out of her room. There is no evidence of any other false memoires being implanted in MV’s memory to overwhelm her independent recollection. Furthermore, as no other witnesses were present with MV in her bedroom with MO, it would simply not be possible for MV’s parents or grandmother to have implanted any memories in her head to taint her evidence about how MO touched her.

[164] Defence counsel points to MV recalling at trial that she called her father on FaceTime around midnight when she could not recall that at the preliminary. NV testified about that call. While MV denied she recalled this evidence only after she spoke with her father, NV was not asked in cross-examination if he spoke with MV about this evidence prior to trial. I therefore accept MV’s evidence that this is a memory she recalled, without any discussion with her father, and thus there is no evidence that her evidence was tainted through discussions with him.

iv. Motive to Fabricate

[165] Counsel for MO argues that MV fabricated her evidence that MO touched her as she was worried that her father would be in trouble for the altercation that occurred in the home with MO. It was not clear, but I presume the argument is that MV thought that her father would not be in trouble for being in a physical altercation with MO if she told the police MO touched her buttock in her bedroom

[166] Defence counsel argued that MV’s failure to recall the details of NV’s altercation with MO was for the purpose of minimizing his actions. MV agreed during cross-examination that she could not recall her father grabbing the intruder. She said all her father did was try to push MO away. She agreed that she did not recall a lot of what her father and grandfather did during this altercation. What she recalled was her father trying to block the stranger. She testified that she was also paying attention to her younger brother who walked out of her parent’s bedroom during this altercation. She did not agree with the suggestion that she did not remember much of the altercation as she was worried that her father and grandfather could get in trouble. She also did not agree with the suggestion that she made up the story of the stranger touching her to protect them.

[167] MV’s explanation that she was also focusing on her brother when he came out of the bedroom and therefore could not recall the details of the physical altercation is reasonable and plausible. Furthermore, this altercation was quite brief as MO was only in the home for a short period of time. The scene in the home would have been chaotic. I do not consider it unreasonable given the totality of the circumstances that MV, a 13-year old at the time, cannot recall the details of the altercation between her father and MO. In my view, her inability to recall details of the altercation was not the result of a deliberate attempt to protect her father but because of the circumstances of this altercation.

[168] Furthermore, there is no evidentiary foundation for the proposition that MV’s motive to fabricate what occurred in her bedroom was due to concern for her father as there is no evidence that MV or any of the other witnesses were concerned that NV was in any kind of trouble. In fact, when she gave her video statement to the police, MV was specifically told that her father was not in trouble. There is no evidence that anyone raised any issue or concern about what NV did to restrain MO or that anyone was concerned that NV faced any jeopardy for how he handled MO.

[169] The timing of MO’s arrest is also informative. On the surveillance video, the police are seen arriving at the home at 4:06 a.m. Two minutes later, MO was arrested at 4:08 a.m. for break and enter. Nine minutes later, at 4:17 a.m., he was arrested for sexual assault and sexual interference, presumably based on what MV told the police in the home. I do not accept as reasonable the proposition that during this short period of time, MV formulated a plan to fabricate the story as a means to protect to father, when there is no evidence that anyone was concerned that her father, NV, might be in trouble.

vi Sexual Assault and Sexual Interference

[170] Having found that MO touched MV, the next issue is whether the touching was of a sexual nature. For that, I consider the context of that touch which includes what part of her body was touched, the nature of the contact and the circumstances surrounding the touching. In this case, it was her buttock that was touched. It was not just a touch but a squeeze. It occurred in MV’s bedroom, in the middle of the night after MO repeatedly said, “Tinder date”. There is no evidence that the touch was inadvertent. It was also more than just a touch. MV described MO also squeezing her buttock. MV testified that she did not know MO, that he did not ask her if he could touch her, and that she never consented. All the elements of sexual assault have therefore been made out.

[171] With respect to the charge of sexual interference, there is no dispute that MV was 13 at the time of the alleged occurrence. Defence counsel argues that MO did not have to make any inquires of MV’s age as based on how her bedroom was decorated, there was no evidence to suggest MV was under 16 years of age.

[172] There is no evidence that MO asked MV anything, other than her name, such as her age or grade in school, before he touched her. Defence counsel argues that based on the photographs of her bedroom, there was nothing to suggest that MV was under 16 and that under the circumstances, he was not required to take any other reasonable step to ascertain her age. This is based, I presume, on the furniture in her room which included a bed, dresser, and keyboard, and the way it was decorated.

[173] While I agree that the photographs do not depict anything to suggest the age of MV or that she was under 16, in my view, that is not sufficient to relieve MO from taking any further steps to ascertain MV’s age. A reasonable person in a stranger’s bedroom in the middle of the night cannot rely on their observations of how the bedroom is decorated to satisfy the requirement to take all reasonable steps. Reasonable inquires had to be made to determine MV’s age other than relying on how her bedroom was decorated.

[174] If you encounter a stranger and decide to touch them in a sexual manner, in their bedroom in the middle of the night, in my view, you must take some reasonable step to determine the person’s age. Entering a stranger’s bedroom and looking at the furniture and how the bedroom is or is not decorated, when the room is not fully lighted, is insufficient. MO ought to have made an inquiry regarding her age, particularly as MV was a stranger to him.

[175] Having found that MO touched MV buttocks, and that she was under 16 years of age, and that the touching was for a sexual purpose, all the elements of the count of sexual interference have been met. MO has failed to demonstrate that he took all reasonable steps, under the circumstances, to ascertain MV’s age.

Summary

[176] Having found the witnesses to be credible and reliable, I find that the Crown has discharged its burden and MO is guilty of all three counts before the court.

L. Shaw J.

Released: December 21, 2021

COURT FILE NO.: CR-20-00000594

DATE: 2021 12 21

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MO

Reasons for judgment

L. Shaw J.

Released: December 21, 2021