OSHAWA COURT FILE NO.: CR-21-15498

DATE: 20220214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

B.W.

Defendant

Andrew Midwood, for the Crown andrew.midwood@ontario.ca

David Barrison, for the Defendant davidbarrison@criminallawoshawa.com

HEARD: January 24-27, 2022

REASONS FOR JUDGMENT

SPEYER J.

A. Introduction

[1] The defendant is charged with two counts of sexual assault, two counts of sexual interference, one count of invitation to sexual touching, one count of exposure for a sexual purpose, and one count of making sexually explicit material available to a child for the purpose of facilitating the offence of sexual interference. He has pleaded not guilty to all the charges. The charges allege that he sexually abused S. and L., the daughters of his domestic partner M., between November 1, 2016 and May 7, 2019.

[2] The defendant lived with M. and her three children. He had assumed the role of step-father to the children. The two girls, S. and L. were 11 years old and 9 years old respectively, when they disclosed the allegations to their mother. Their brother, O., was 4 years old.

[3] The relationship between the defendant and M. ended abruptly on May 7, 2019, when S. and L. told their mother that the defendant had touched them in a sexual manner. She immediately demanded that the defendant leave the house, and he did.

[4] Four witnesses testified during this short trial: S, L. and M., and the defendant. The defendant testified that the acts described by S. and L. did not occur.

B. Undisputed Background Facts

[5] The contextual facts of this case are not in dispute. A summary of those facts will serve to facilitate understanding of the disputed facts.

[6] M. met the defendant in 2016, when she worked at Tim Horton’s. The defendant was a regular customer. They became friends, and then partners. In November 2016, the defendant moved into M’s house. I will refer to this house as the old house. While their relationship had its issues, they managed to put those mostly behind them and in 2018, until May 7, 2019, they lived as a very integrated blended family. M.’s children came to regard the defendant as their step-father. He took an active role in their care. The defendant’s three children from previous relationships spent time with him and M. and her children on alternate weekends.

[7] In mid-March 2019, the defendant, M. and her children moved into another house. I will refer to that house as the new house. While they took possession of the house formally on April 1, 2019, they got the key two weeks earlier, and moved in gradually. They moved their beds and began sleeping in the new house in mid-March 2019.

[8] The new house had a kitchen and living room on the main floor. There were three bedrooms on the upper floor. Each child had their own bedroom. The defendant and M. had their bedroom in the finished basement.

[9] In October 2018, M. began to work at a healthcare clinic. She worked from Monday to Saturday. From Monday to Thursday, she worked from 11:00 a.m. to 7:00 p.m. On Friday she worked from 11:00 a.m. to 4:00 p.m. On Saturday, she worked from 9:00 a.m. to 2:00 p.m. Her workplace was a seven-minute drive from her home.

[10] The family had a routine on weekdays. They would get up and get the kids off to school. M. went to work for 11:00 a.m. The defendant picked the girls up from school when it ended at 2:55 p.m. and brought them home. Then the defendant would return to work, if he was working, leaving the girls at home. He would then pick up O. at his daycare and return home, where he would make dinner for the children unless they had made something for themselves. M. returned home from work at about 7:30 p.m., sometimes directly from work, or after picking up groceries. The children got ready for bed at 7:00, and they were to be in their beds at 7:30. After M. got home, she and the defendant would eat dinner, watch TV, and catch up on their days.

C. The Governing Legal Principles

[11] Before I turn to the evidence, I wish to say a few things about the law that governs my decision.

(i) The presumption of innocence and the burden of proof

[12] My decision is not about whose evidence I prefer. My decision may not be based on a choice between the evidence of the witnesses called by the Crown and the evidence of the defendant. Rather, my decision must be based on the principle that the crown is required to prove the allegations beyond a reasonable doubt.

[13] The defendant is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.

[14] The defendant started this trial presumed to be innocent of the charges against him. The presumption of innocence is only defeated if and when Crown counsel proves every essential element of an offence beyond a reasonable doubt.

[15] The obligation to prove the defendant’s guilt rests with the Crown. The defendant does not have to prove that he is not guilty.

[16] It is not enough for me to believe that the defendant is probably or likely guilty. In those circumstances, I must find him not guilty, because the Crown would have failed to prove his guilt beyond a reasonable doubt.

[17] The defendant testified that he did not do that which he is alleged to have done. If I believe his evidence that he did not commit the offences, I must find him not guilty.

[18] Even if I do not believe the defendant’s evidence that he did not commit the offences, if it leaves me with a reasonable doubt that he did what is alleged, I must find him not guilty because his guilt would not have been proven beyond a reasonable doubt.

[19] Even if the defendant’s evidence does not leave me with a reasonable doubt about whether he committed the offences, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

(ii) The assessment of evidence of children

[20] When children testify, their evidence is not to be assessed in the same manner as the evidence of adults. Children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding, and ability to communicate: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 24-26; R. v. P.S., 2019 ONCA 637 at paras. 23-26.

[21] Children do not perceive the world in the same way as adults. Children do not experience the world in the same way as adults. As noted by Wilson J. in R. v. B. (G.), at p. 55, “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”

[22] While the evidence of children must be assessed in the context of their age and maturity, this does not lessen the burden of proof on the Crown. Proof beyond a reasonable doubt remains the standard for conviction, even though the complainants are young.

(iii) Cross count use of the evidence

[23] The Crown has applied to have the evidence of S. in relation to count 4, the charge of sexual interference in relation to S., admitted as similar act evidence on count 2, the charge of sexual interference in relation to L.

[24] It is the position of the defence that such cross-count use of the evidence does not meet the test for the admissibility of similar act evidence.

[25] Similar act evidence is presumptively inadmissible. The admissibility of similar acts must be established on balance of probabilities.

[26] It is not necessary for me to rule on the Crown’s application regarding the cross-count use of evidence. The reasons for that decision will become apparent.

[27] I have not made any cross-count use of the evidence. I have not used the evidence of S. in relation to Count 4 to enhance the credibility and reliability of L.’s evidence as it relates to whether the acts she described happened as alleged. The inference the Crown seeks to have me draw is that because of the similarities between the evidence of the two complainants, it is more likely that L. is telling the truth and that the respondent committed the acts as alleged by L. I have decided this case without resort to any such inference.

D. The evidence of the Crown witnesses

(i) The videorecorded statements of L. and S.

[28] L. and S. separately provided videorecorded statements to the police on May 9, 2019. Those statements were admitted in evidence pursuant to section 715.1 of the Criminal Code. Both statements were made within days after the alleged offences last occurred. Both L. and S. described the acts complained of in their statements and adopted the contents of their statements while they testified. Each confirmed that she was trying to be truthful when she spoke to the police officer. The admission of the videorecordings in evidence would not interfere with the proper administration of justice. Defence counsel did not oppose the admissibility of the videorecorded statements. Therefore, the videorecorded statements were admitted in evidence, and each forms part of the witness’s trial evidence.

(ii) L.

[29] L. is 12 years old and in grade 7.

[30] L. was 9 years old and in grade 4 on May 7, 2019, the day on which she told her mother what the defendant did to her.

[31] The questions asked of L. during her police interview were simple and open-ended. They were not of a leading nature. The officer explained to L. that she was required to tell the truth.

[32] L. told officer Sullivan that the defendant came into her room when she was getting ready for bed, and he picked her up and put her on her bed face down on her belly with her legs over the side of the bed and her knees on the floor. She demonstrated this position on the video recording. She was wearing only her underwear, as was her usual custom at night when she slept. He was on top of he and gave her a massage and tickled her. She told him to stop but he did not. Then he gave her a “wedgie”. He put her blanket over her, and she took it off. Then L. felt the defendant’s “wiener” on her “bum crack”. She said that it felt like he was “humping” her, that he was “like going up and down”. She told the officer that she did not like it. The defendant was also massaging her shoulders and tickling her, and she did not want him to do that, so she told him to stop. When he did not stop, she yelled for help and S. came into the room. The defendant had L.’s body pillow in his hand and smacked her in the face with the pillow. He told S that he was just hitting L. in the face with the pillow because he told her not to put something away, and she did that anyway. The defendant told S. to go back to bed.

[33] L told officer Sullivan that she was sitting on her bed when the defendant smacked her with the pillow. She clarified that the defendant hit her with the pillow before everything happened. Before everything happened, she was putting something away and the defendant dumped something on to her bed and hit her with the pillow. It was at that point that S. came in and the defendant told S. that he was hitting L. with the pillow because she had cleaned something up after he had told her not to do that. The defendant then told S. to get back to bed. Then, the defendant put L. in the position that she had described and “then all the other stuff came in”. After the “humping”, he stood up and L saw that he had his hands over his pants, and she felt like he was covering up his “wiener”. His pants were up, and his “wiener” stuck out with his hands over it. He then turned around, said “good night” and walked away and put his “wiener” back in his pants. She did not see his “wiener” at all.

[34] L. told the officer that after the defendant left, S. came into her room and asked her what was happening, and L. told her. When their mother got home, S. went downstairs and spoke to M. M. told S. to call L. downstairs. L. was coming down to show her mother a ribbon that she had received at school. M. asked L. to tell her what was happening, and L. told her that she would not do so if the defendant was there. M. told the defendant to go outside. L. explained to her mother what happened, and then the defendant walked in and said that he did not do that and that he did not have his wiener out.

[35] M. and the defendant got into a fight and M. kicked the defendant out of the house and he left. L. said that before he left, the defendant came in, told them that he loved them, and wanted them to give him a hug, which they did. She clarified later in her statement that the defendant came upstairs when she and S. were in S’s bedroom reading a story to O. He told the children that he loved them and put his arms out for a hug and they all gave him a hug. M. asked the defendant why he was touching her children, and he went back downstairs.

[36] L. also told officer Sullivan that her mother hit the defendant twice and pushed him and both M. and the defendant went downstairs to pack his things.

[37] L told officer Sullivan that the incident occurred a couple of nights earlier. She described their bedtime routine and that they usually go to bed around 7:00 p.m.

[38] L. told officer Sullivan that this happened to her before with the defendant, once a week since they were at their old house, and that it all started “when we play truth or dare”. She said that the defendant would put her in that exact position, and it started to happen. She could not remember the first time it happened, and all she could remember was that she was in the exact position that he put her in at the new house. She said that it only happened “when Mommy wasn’t home”. She said they played truth or dare in the basement and that he told her not to tell anyone that they were playing that game. She said that she could not remember the questions, but that it was not anything sexual. She also said that the defendant pulled S. down to the basement and they started to play truth or dare. When S came back up, L asked her what happened, and she said she could not tell L. because the defendant had told her that she could not tell anyone.

[39] In the videorecording, L. appears much smaller and younger than she did at trial, which is not surprising given her age and the time between the two events. In the videorecording, she appeared candid, spontaneous, and responsive. Her account came entirely from her, and was a detailed account in relation to the events that occurred two days earlier. She described that she had trusted the defendant, then did not trust him, and said that she did not know if she could trust anyone anymore, and her account of these feelings struck me as genuine, uncontrived, and entirely consistent with what she said he had done to her.

[40] In her evidence at trial, L. was much less open and her memory of what happened when she was 9 had clearly faded. She readily acknowledged that her memory of what happened was better in the video than it was at trial.

[41] L. described her relationship with the defendant. She testified that before he left, she got along with him well for the most part, but she did not know what he was doing or why he was doing what he did to her. She said that they did not fight a lot, and that it was a happy house.

[42] L. was cross-examined about truth or dare. She confirmed that she had no memory about the questions, and that there was nothing sexual about it. She could not explain any connection between truth or dare and touching. She testified that she did not tell S. about truth or dare, but heard S. tell their mother about truth or dare the night the defendant left.

[43] When defence counsel suggested to L. in cross-examination that her conversation with S. had influenced her statement to police, she emphatically and emotionally rejected that suggestion. Her response that she told the police what happened to her was provided without hesitation and with genuine emotion. Her evidence about this was compelling.

(iii) S.

[44] S. is 14 years old, and in grade 9. She was 11 years old and in grade 6 when she moved into the new house and when she gave her statement to the police.

[45] S. provided a videorecorded statement to Detective McConnell on May 9, 2019, two days after the events that caused the defendant to leave the house. During her conversation with Detective McConnell, S. presented as a friendly, chatty, serious 11-year-old. She spoke spontaneously. She generally answered the officer’s questions directly and without hesitation. Her answers were, for the most part, detailed. The information came from her, and not in response to leading questions.

[46] S. promised to tell the truth to Detective McConnell.

[47] S. told officer McConnell that the defendant went into L’s room. From her room, S. could hear L. telling him to stop. S. did not know what was going on and went into L.’s room. L. was sitting on her bed, wearing only her underwear. The defendant had a big body pillow and was apparently hitting L. with the pillow. S. did not see him hit L. with the pillow. Then, after the defendant went downstairs, S. returned to L.’s room and asked her: “what just happened?” L. told S. that the defendant was laying on top of her and tickling her and massaging her. S. realized that this was happening to both L. and to her, and she said to herself that her mother needed to know about this now. Before this, S. had no clue that this was happening to L.

[48] S. said that her mother was in the kitchen, that she told her mother she needed to talk to her, and that she asked to go somewhere else to talk. Her mother told her to talk to her there and then. S. recalled that she told her mother that she went into L’s room, that the defendant was there, and that L. had told her that he was tickling and massaging her and laying on top of her and that L. felt his “thing”, that it was touching her. She recalled that she told her mother that L. should not be going through this and that she should not be going through it either. Her mother asked if it was happening to her too, and she said yes, this is happening to me too.

[49] S. described the events that followed her disclosure. L. came out of her room, and S. went upstairs because her mother and the defendant started fighting. She told L. that she had told her mother because she needed to know. The defendant was lying to her mother and saying that it was not happening. O. started crying, and both girls ran into his room to calm him down. They read him a book, and S. picked him up and held him. M. came upstairs. The defendant came back in. He packed up his stuff and brought it to his car. Before he left, when her mother was dealing with O., the defendant held out his hand for a hug and he told her not to tell anybody or he would go to jail and would not be able to see his children anymore. M. called her brother after the defendant left and asked him to come and change the locks on the doors. M. also called her mother.

[50] S. told the officer that she spoke to her uncle, M.’s brother, on the phone and told him that a couple of nights earlier, the defendant took his penis out and wanted her to put it in her mouth.

[51] S. told the officer that on Monday night, the night before the defendant left the house, he wanted her to put his penis in her mouth. They were downstairs in the basement. L and O were upstairs watching TV. She explained that he put on “one of those things that you put on, I don’t know what it’s called”. He grabbed the thing from his grey tin. He put it on his penis and said: “I thought we could try something new”. S. said: “no, I don’t want to”, and she “had to push it away”. She saw his penis. She said that she did not want this happening anymore. On the Monday night, he called her his “special girl”. When she said no, the defendant said, “fine” and he “took it off and put it back in”. Then they went back upstairs. This was the only time that she saw the defendant use a condom.

[52] S. told the officer that “this whole thing started out with truth or dare”. When she mentioned that, Detective McConnell asked her what truth or dare was and asked if the defendant was asking her to do something. S. responded: “he was asking me to do stuff”. She said that she was 11 when truth or dare started, and that she could not remember what he was asking her to do. After she had her appendix out in November of 2019, they were in the basement and she wanted the defendant to help her with her homework. He asked if she wanted to play truth or dare and she said okay. She thought it was going to be bonding time, but it became “really weird”. She told Detective McConnell that she can’t really remember what happened.

[53] S. described things that happened in her room at the new house when she was in her bedroom getting ready for bed. While she was able to describe the acts, she had difficulty in characterizing them. She said: “I don’t really know like if it’s making out or having sex, I have no clue”. She explained that the defendant would pull down her pants and her underwear and he would “hump” her by her “butt” and he would grab her legs and put them over her shoulder and “lick my area” and sometimes “he’d feel up here”. With his finger, he “would just move it around” and “he’d like stick it in and then like he’ll like push it in”, and with his tongue he would “lick it and then he’d go in there”. She explained that it was either his finger or his tongue, but not his penis, that touched her “private areas”. She clarified that she was referring to her vagina. She explained that when he “humped’ her “bum’ he moved his penis really fast while rubbing it against her butt while she was in a downward dog position, referring to a yoga position. Sometimes her clothes were on, and sometimes not. Sometimes the defendant would pull down his pants, and sometimes he would just have “his thing out’. She said that he “moans”. She told Detective McConnell that she had not told her mother or uncle or nanna about this. She said that this activity happened every Thursday, then every Tuesday, and then “all over the place”. It never happened when her mother was home. She said that the defendant told her not to tell anybody. She said that the defendant never threatened her with anything.

[54] S. also told the officer that the defendant’s penis “has like squirted out that white stuff before”. The officer asked where the white stuff went, and she explained that it does not go in her body, but that the defendant would force her hand to go on to his penis and move it up and down. She spontaneously demonstrated the motion on two occasions as she described it. She said that sometimes the white stuff would go on her and sometimes it would go on her bed. Later in the interview she recalled that the white stuff went either on her hands or on her bed. The white stuff happened two or three times. She said that the defendant told her that kids do this all the time with their stepfathers, and that he showed her two videos on his phone. In one, a girl put the penis in her mouth. In the other, the stepfather and the girl were lying on a couch and when the mom came in to cook dinner, they put a blanket over it so that she could not see. He showed her the videos in her bedroom, on her bed.

[55] S. explained to the officer that she was afraid to tell her mother because she knew that her mother would tell her father, and S. knew that he was very protective and that he had been arrested for doing “bad stuff” to her mother, so she was afraid of what her father might say or do if she disclosed.

(iv) M.

[56] M. explained her family constellation and her relationship with the defendant. She described her hours of work at the physiotherapy clinic, and notably, that from Monday to Thursday she worked until 7:00 p.m. She also explained that she was in regular contact with the defendant, by phone or text, as to when she would be home and whether she needed to pick anything up on the way home.

[57] M. explained that they moved from the old house to the new house in mid-March 2019, making the move gradually until they formally took possession on April 1 2019. The first thing they moved was their beds and after that they slept at the new house. She confirmed the sleeping arrangements in the old and new houses. She described the household routines. She described the girls as quite self-sufficient and explained that they generally prepared themselves for bed and went to bed after being told that it was bedtime.

[58] M. testified that the defendant assumed a stepfather role to her children, and that she thought they had a great relationship. She did not see anything that raised a red flag for her. The children were disciplined, when necessary, by both the defendant and her, depending on who was present. The defendant could be a little tough on the girls, but not unreasonably so. He was firm, but fair.

[59] M. testified that during her relationship with the defendant, he was diagnosed with genital herpes. After that, they bought condoms to use when he had an outbreak. The condoms were kept in their bedroom in a silver tin that was kept either on a shelf or on a desk beside the bed. She was shown a photograph of their bedroom and identified a silver tin on the desk beside the bed as the tin where the condoms were kept. She also pointed out the shelf where the tin was sometimes kept.

[60] M. described the events of May 7, 2019 after she returned home from work. She stopped on the way home to pick up food for dinner. The defendant was outside when she arrived home, having a cigarette. He had fired up the BBQ. They were planning to have steaks and Caesar salad. He told her that the kids were in bed.

[61] When M. was in the kitchen, she heard footsteps and saw S. S. said that she needed to talk to her about the defendant. M. said that S. said that the defendant was playing truth or dare and that the defendant massaged and tickled L and L felt his wiener. S. also used the word “grinding”. The defendant came into the house and she accused him of sexually assaulting her children. L. came downstairs. The defendant said: “what?” He said to the girls: “You need to tell them that I have never hurt you”. He said “that’s not true. I’ve never hurt you. You need to tell her”.

[62] M. looked at L. and asked: “did he hurt you”. L was stone-faced. M took both girls upstairs in a bedroom and spoke with them. M. described the events that followed. It is not necessary to detail her description. She testified that she does not remember, word for word, what was said. Her account is substantially the same as the account provided by the defendant in his evidence, and by the girls in their evidence. While there are differences, I do not consider them to be significant. By all accounts, the events following S.’s disclosure were emotionally charged, and chaotic. Everyone was upset. The events unfolded quickly. It is not surprising that the participants recall those events differently. I do not consider any discrepancies among the accounts provided by all the witnesses almost three years after the events occurred to detract from my assessment of their credibility or reliability at trial.

[63] M. confirmed that after the defendant left, she called her mother and her brother. Her brother came over to change the locks. She recalled that both girls spoke with both her mother and with her brother.

[64] Later that night, she took the girls to the police station and reported what the girls told her. It was then too late for statements to be taken from the girls.

E. The evidence of the defendant

[65] The defendant testified. The defendant denies that he committed the offences alleged. He denies committing all the sexual acts described by S. and L.

[66] The defendant is 35 years old. He has a criminal record that is dated and does not contain any offences of dishonesty. The only significance of his criminal record is that it contradicts his evidence that he is not a violent person. That evidence is not accurate and reveals a tendency to over-statement.

[67] The defendant’s evidence about the history of his relationship with M. and her children and their living arrangement and routine accords with the evidence of M. and the girls. I will not review his evidence on these subjects because it does not conflict with other evidence. I will review some of the defendant’s evidence that relates materially to the alleged offences.

[68] The defendant testified that if he tucked the girls in, he would toss them into bed and cover them with the blanket, or hit them with a pillow and tickle them and tell them it’s time for bed. He said that he was not concerned with riling up the kids. He explained that’s what he did with his other children when they were there, and that he wanted to treat all of the children equally. He testified that he would also grab S.’s pillows and hit her, and that she would hit back. He said that L. would come and join them.

[69] The defendant testified that S. knew what a condom was. He explained that at the old house the kids played with condoms they found in a kitchen cupboard. They blew them up and filled them with water. When he needed the condoms, he went to get them from the cupboard and found that there were condoms missing from an open package. He and M. got into an argument about whether either of them had cheated. They asked the girls about it and the girls said they were filling them with water and playing with them. He and M. told the girls that condoms were expensive and that they went on a man’s wiener to prevent pregnancy and disease. After that, the condoms were kept in the adults’ bedroom. The defendant did not know why the condoms were in the cupboard, and speculated they were put there when they were unpacked.

[70] The defendant testified that on the night of May 7, 2019, he went upstairs and put O. to bed. He saw that L. had been cleaning up a mess after she was told to leave it for the next day. He told L. that she was procrastinating and told her to get to bed. He hit her with a pillow and started tickling her. She said “stop” because she is ticklish. L. was wearing just her underwear. He scooped her up, with one arm under her legs and one arm under her shoulder and tossed her on her bed. She got up and said she wanted to clean up, so he hit her with a pillow. She started laughing. Now he realizes that it probably was not a good idea to rile her up, but he still does that with his own children. His interaction with L. ended when she got into bed. He pulled up her blanket, gave her a kiss, and said goodnight. He said that S. came into L’s room for about 30 seconds and asked what was going on. In his evidence in chief, the defendant could not remember his response but said that he was trying to get L. to go to bed. In cross-examination he said that S. went back to her room after he said the L was not going to bed and that he was hitting her with a pillow. He denied any improper touching of L. that night.

[71] The defendant provided an account of what happened after S.’s disclosure that is substantially the same as that provided by the others, with one exception. He testified that he gave the kids a hug and told them that he loved them before he left. He denied that he said or whispered anything else to the kids.

F. Analysis of the evidence

[72] During her interaction with officer Sullivan, L. was very spontaneous. She demonstrated a good memory about peripheral matters. She could describe her feelings. She described what happened to her and the events that followed in great detail. Her physical demonstration of the position in which she was put by the defendant was completely spontaneous and occurred naturally in the context of what was being discussed. The questions asked by the officer were not leading. When the officer misunderstood the order in which the events occurred, L. corrected her. The account came entirely from L Her account appeared genuine.

[73] In her interview with officer McConnell, S. presented as genuine. Her account of what happened was provided spontaneously, without hesitation, directly, and seriously. Her account was detailed, particularly as to the event she described having occurred most recently, only a few days earlier. She is able to explain words that she uses, like “humping”, by describing her experience of that conduct. She demonstrated, with her hand, how she moved her hand up and down on the defendant’s penis. She did this without prompting, in a very compelling account of that activity.

[74] The evidence of L. and S. was largely confirmed by the evidence of M. and by the defendant. But for the allegations, the accounts of all four witnesses as to the surrounding circumstances was largely consistent. This is important because it tells me that L. and S. have the ability to recall and recount their circumstances accurately. In other words, they are reliable witnesses, notwithstanding their young ages.

(i) Inconsistencies in the Crown’s evidence

[75] Counsel for the defendant submitted that inconsistencies in the evidence of the Crown witnesses, together with the potential for collusion must be considered. I have considered the evidence said to amount to material inconsistencies, and find that it is either not inconsistent, or that any inconsistencies are not material. I have also considered the cumulative effect of any inconsistencies, together with the potential for collusion, and I have concluded that they do not detract from my assessment of L. and S. as credible and reliable witnesses.

[76] Mr. Barrison pointed to several areas of evidence about which, it is submitted, the girls were inconsistent. It was submitted that those inconsistencies should cause me to be concerned about the credibility and reliability of the girls. I will deal with each of the alleged areas of inconsistency individually and will then go on to consider their cumulative impact.

a. L.’s evidence generally

[77] The defence submits that L.’s evidence was problematic because she only described one incident specifically and had no memory of other incidents except that they were the same. It is unsurprising that a 9-year-old child would be able to recount the details of something that happened two days earlier and be unable to recount things that happened further in the past. This is particularly so if the events were similar. I do not consider the fact that L. had a detailed memory of a recent event, but no detailed memory of similar prior events to detract from the reliability or credibility of her evidence.

b. Inconsistencies in L’s evidence

[78] L.’s evidence was also criticized because her memory of various details of the incident was improbable or inconsistent. The matters referred to in argument do not in my view detract from L.’s credibility or reliability. Whether she was pulled out of her bed once or twice, in the context or an episode that unfolded in two stages: the initial dispute about getting into bed, and the subsequent sexual assault, is insignificant. That she felt the defendant’s wiener but did not know if it was out or not, does not undermine her evidence, rather, it strengthens her evidence. Given that the event as recounted by her had the defendant behind her as she lay face down on her bed, her description is consistent with what her experience would have been had the events unfolded as she described.

b. The words used to describe a penis

[79] The defence submits that there was something problematic in the witness’ use of the word “wiener” to describe a penis. In her video statement, L. referred to the defendant’s penis as his “wiener”. That is consistent with what her mother said was the word used by the children. M. testified that the children used the “word” wiener as they were comfortable with that word at their age, and her son was four years old at that time. She recalled that they also used the word “willie”. S. told officer McConnell that L. told her that she had felt the defendant’s “thingy”, and that is the word they used in their house to describe a penis. It is my view that none of this detracts from the children’s evidence. S. never purported to quote verbatim what L. told her. That S. used a different word to describe male genitalia when speaking with a police officer tells me nothing about her credibility and reliability.

c. Whether S.’s videorecorded statement was influenced by the questioning

[80] Counsel for the defendant points to areas of S.’s videorecorded statement that he submits were influenced by leading or persistent questions by the officer. It is true that at times, the officer asked questions that were not open-ended, and that he persisted in attempting to get S. to tell him more about truth or dare. Although these less than ideal interview questions occur in only a small part of the interview, I will address them to evaluate their impact.

[81] S. was asked by Officer McConnell whether she thought that the defendant’s penis went inside her bum or vagina or both, when he was rubbing his penis on her. She responded “I think both”. The officer asked her how that felt to her. She said: “I feel like we’re technically making out”…”kinda”…I don’t like it, like to me that’s just disgusting”. In this exchange, S. reveals an age-appropriate understanding of what is happening to her. The genuine quality of her answer does not strike me as influenced by the question.

d. Whether the defendant took the condom off or not after last incident

[82] S. was asked about her evidence at the preliminary inquiry that the defendant left the condom on after he asked her to perform oral sex, when in her police statement, she said that he took it off. I do not consider this inconsistency to be significant given the passage of time between the her police statement and the preliminary inquiry, and the impact that the passage of time may have on the memories of children.

e. How often the incidents with S. occurred

[83] In her video statement, officer McConnell asked S. “so this is a tough question, but some kids can answer and some kids can’t, but do you have any idea how many times you think this has happened”, and S. answered “if I would’ve counted probably like fifty or so times”. When she was cross-examined at trial, she revised this estimate to 20 to 30 times. She readily agreed that if they had been in the new house only six weeks, that her estimate to officer McConnell would be an exaggeration. She was also clear in cross-examination that the incidents only happened at the new house. I am not troubled by this inconsistency. Children are notoriously poor at estimating the number of times things happen. S. told officer McConnell that it happened about once a week. Her answer to officer McConnell made it clear that she did not count how often the incidents occurred, and that her response to him was a guess. I accept that her guess was unreliable, but in my view it does not detract from her credibility.

e. The references to the game of “truth or dare”

[84] Counsel submitted that the way S. disclosed the incident in the old house during a game of truth or dare is problematic and undermines S.’s credibility. Near the end of the videorecorded statement, she was asked: “if there’s anything else that, uh, B. has done or talked about or anything else that worries you –“. She responded: “It doesn’t … I don’t remember anything else”. At a later point she said: “I can’t remember anything from that day from the truth or dare”, and that: “it just started getting weird”. She was asked by the officer: “Like conversation weird or touching weird?” She responded: “I feel like it was touching and conversation” She then went on to say: “The one thing that sticks out was when we played truth or dare I asked him … what’s the most embarrassing thing that has ever happened in your life?”. She told the officer that he said that he was drunk one time and he then pulled down his pants and his underwear “and then he started shaking his thing”, and he told her that he was drunk and “I did this out the window of the basement door”. She saw his penis and he was just shaking it, like in the story he was telling her. She said that this happened at the old house.

[85] Counsel submits that S. initially said that she did not recall anything about the game of truth or dare, and that she provided her account about the defendant’s demonstration of the most embarrassing thing that happened in his life after the officer repeatedly asked about it and suggested that it could have involved conversation or touching, in order to tell the officer something. This suggestion was put to her in cross-examination and S.’s response puts to rest any concern that her responses to the officer’s questions were contrived to provide him with some information because he kept asking her about truth or dare. She explained she did not say anything about the incident where the defendant told her about his embarrassing moment when he shook his penis in front of a window, and showed her what he did by pulling down his pants and shaking his penis, because she thought that the officer was asking her about what happened to her. She did not perceive this incident as something that happened to her. She did perceive it as weird – an apt description if it in fact happened. The explanation provided by S. makes sense and has the ring of truth about it. It appeared to me that during this part of her evidence, S. was genuinely trying to remember her state of mind during the interview. She answered all questions asked of her by defence counsel about this directly and responsively. So too, her response to a question about her evidence at the preliminary inquiry that the defendant told her that this incident was a secret, that this was something she had forgotten until defence counsel reminded her of it rings true. Through all of this cross-examination, S. struck me as doing her best to recall her state of mind and thought processes years earlier. Her responses did not appear to be confabulated or contrived. She appeared to be doing her best to answer very difficult questions to the best of her ability. Her answers made sense to me.

[86] Counsel also submits that the fact that S., L., and M. all spoke of the “truth or dare” game at some point is suggestive of collusion between them, whether intentional or not. I disagree. S. clearly connected that game to a time when her relationship with her stepfather got weird. She said that to the police. M. said that S. told her that the defendant was playing truth or dare and that he massaged and tickled L and L felt his wiener. If S.’s account is true, then “truth or dare” had a special meaning to her – it was related to the defendant’s behaviour towards her. It is not surprising that S. referred to truth or dare when she spoke to her mother.

[87] L. was unable at trial to explain her earlier reference to “truth or dare”. In her police statement, she said that the defendant had done what he did to her about once a week, and that it all started when they played truth or dare. In her statement, she said that there was nothing sexual about it. She learned that S. played “truth or dare” with the defendant the night that he left, because she heard S. tell her mother about it, but she testified that she did not tell the police officer about truth or dare based on what she heard S. say. It is my view that L.’s evidence about how or why she referred to truth or dare is not reliable. At the time of trial, she simply did not know why she made that reference. I accept that at trial she had no memory of what truth or dare involved when she and defendant were together. While L.’s statement and evidence about truth or dare is unreliable, I do not consider it to tell against her reliability and credibility generally. It is simply something that a child has forgotten.

f. Whether the girls had played with condoms

[88] All the witnesses were asked about a time when the girls used items they found in the kitchen as balloons. M. said that this happened at the old house, and that while they initially thought that the girls were using condoms, the items were in fact liners for baby bottles. M. did not recall that the girls were spoken to about their actions.

[89] S. testified in cross-examination that she and her sister did get some condoms and blow them up to make balloons. She said that she did not know what they were. She said that they were loose in a kitchen drawer, not in a box, and not in any packaging. She said that her mother and the defendant told them not to do that anymore. Her answers to questions about this were spontaneous, fluid, responsive, and provided without hesitation. I accept that they reflected S.’s honest memory of this event. I also find that her evidence is not inconsistent with M.’s evidence. S. did not know at the time, what the items were. Her evidence about the balloons is also not inconsistent with her evidence that the first time she saw a condom is when the defendant put one on his penis.

(ii) Confirmatory evidence

[90] As I have previously noted, the evidence of L. and S. is confirmed about all except the core allegations, by the evidence of M. and the defendant. There is some evidence that confirms the allegations against the defendant.

[91] S. described the location and appearance of the condom tin. M. and the defendant confirmed that her evidence about that is accurate. There are photographs that show the tin, and the shelf on which it was sometimes kept. The existence of the tin of condoms, its appearance, and its location, all conceded by the defendant when he testified, provide confirmation of S.’s account. There is no reason for M. to have known about the tin or its contents, other than the reason provided by her in her evidence.

[92] The evidence of the defendant’s use of condoms also has confirmatory value in my assessment of S’s evidence. That confirmatory value arises because his condom use is irregular and related to a specific condition about which S. could have had no knowledge.

[93] M. testified that she never spoke to S. about herpes. There is no evidence that S. was aware of the defendant’s diagnosis. Common sense tells me that the defendant’s medical condition is not a subject that parents would have discussed with an 11-year-old child.

[94] The defendant testified that he knew that the herpes virus can be transmitted by contact other than sexual intercourse. He knew that the virus is not always active and that he is not always contagious. S. testified that the defendant put on a condom when he asked her to put his penis in her mouth. The defendant has a medical condition that he manages by using a condom when the virus is active. He knows that one purpose of using a condom is to prevent the transmission of disease. He only started using condoms during his relations with M. after he was diagnosed with genital herpes. None of this was known to S. In her evidence, she was clear that he used a condom, that he got it from a silver tin, and that the tin was on a shelf in his bedroom. Her evidence that he used a condom is consistent with the existence of a state of affairs that was not known to her. There was no evidence that the defendant was experiencing a herpes outbreak when the incident of attempted oral sex is alleged to have occurred. However, I do not consider this to detract significantly from the effect of the evidence of his condom use during this incident. It remains the case that it is plausible, given his condition, that he would have used a condom during oral sex with S., and that she described him doing that.

[95] During her video-recorded statement, S. explained her close relationship to her four-year-old brother (“he’s in love with me”), and to her younger school-mates when she watched the grade one students and helped them at lunch time and recess by reading books and playing games with them. I mention this because she has assumed care-giving roles to younger children and this provides context for my assessment of her evidence that when L. disclosed to her that the defendant had touched her in a sexual manner, S. decided on the spot that her mom needed to know, and she promptly told her mother. It struck me as being entirely consistent with her care-giving nature towards younger children. I appreciate that the evidence of her relationship with her brother and her work with the grade one students at school came from S. and is not independent of her. But that evidence was not challenged, and I have no reason to doubt it.

(iii) Conclusion regarding the evidence of L. and S.

[96] Having considered the totality of the evidence of L. and S., it is my view that that they were credible and reliable witnesses as to what the defendant did to them. I accept their evidence about that.

(iv) The evidence of the defendant

[97] I do not believe the defendant’s evidence that he did not sexually abuse L. and S. as they described. While I am entitled to reject the defendant’s evidence on the basis of my acceptance beyond a reasonable doubt of the evidence of L. and S., there were features of the defendant’s evidence that contribute to my rejection of his evidence.

[98] The defendant testified that he tickled L. and hit her with a pillow because she was procrastinating about going to bed. This makes no sense. M. testified that to her knowledge the kids were not tickled before bed and denied that she and the defendant tickled them before bed. As she reasonably explained, they were trying to get the kids to bed, not wind them up. I accept M.’s evidence about this. It makes sense. The defendant’s evidence about why he was tickling L. and hitting her with a pillow strikes me as an incredible attempt to explain why L. was calling for help.

[99] When the defendant was challenged in cross-examination about his lack of memory about words he heard the girls say to their mother, he provided an odd response. He said that these events happened in 2019 and that he has not been thinking too much about them or stressing himself out about the situation. He noted that he does not remember when he got his oil changed, an apparent suggestion that he has no reason to remember things that he does. He agreed with Crown counsel that those things might stick in his mind differently. I note this exchange because the defendant’s evidence about this was not credible. While a flippant response in cross-examination is not always meaningful, this response was unbelievable and made no sense. It detracts from the defendant’s credibility.

[100] The defendant spoke with Detective McConnell on June 4, 2019, after he was arrested. It was the defence position that the statement was voluntary. Parts of his statement were put to him by the Crown in cross-examination.

[101] In his police statement, the defendant was asked whether the kids would have a reason to know about condoms. He told the officer about the children playing with condoms that they found in the cupboard. He told the officer that this happened in 2017 or 2018. He told the officer that he and M. told the girls that condoms were used to prevent having a baby. He believed that he told the officer that he also told them that condoms were used to prevent disease. He was clear in cross-examination that he and M. both explained to the girls that condoms were to prevent pregnancy and disease. M. testified that this did not happen. To be clear, it was not incumbent on the defendant to explain how the children acquired the sexual knowledge they had, or to prove that alternative explanations for their knowledge were true. However, he did proffer an explanation for how they could have known about condoms, and I reject that explanation. I reject it because it conflicts with M.’s evidence, and because it is not credible that he would tell young girls that condoms were used to prevent disease. His evidence about that at trial was inconsistent with his statement to the police.

[102] In his police statement, the defendant told Detective McConnell that they had baby bottle liners and that the girls found those in a cupboard and thought that they were “penis covers”. At trial, he said that he did not recall this exchange with Detective McConnell but did not dispute that it occurred. He said that in his earlier evidence he had forgotten about the exchange that happened with the girls about the bottle liners. This discrepancy is telling. The defendant initially explained that the girls could have known about condoms because they found them in the cupboard and were playing with them. His account to Detective McConnell aligns with M.’s evidence that the girls found bottle liners, not condoms. That account stacks up with the other evidence. The defendant’s evidence about the girls playing with condoms was, I find, untruthful.

[103] While the defendant’s categorical denial of any sexual impropriety with his stepdaughters was unshaken at trial, I reject his evidence about that. I reject it because his evidence about some peripheral matters was shown to be inconsistent with his statement to the police, inconsistent with the evidence of M., or inconsistent with common sense. I also reject his evidence because, after reviewing the evidence in its totality, I accept without reservation the evidence of L. and S.

[104] I also do not have a reasonable doubt that the defendant’s evidence may be true.

[105] I am satisfied, beyond a reasonable doubt, that the defendant did what L. and S. say he did and find him guilty of each of the charges against him.

Justice J. Speyer

Released: February 14, 2022

OSHAWA COURT FILE NO.: CR-21-15498

DATE: 20220214

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

B.W.

REASONS FOR JUDGMENT

Justice J. Speyer

Released: February 14, 2022