ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-22-829

DATE: 2024/03/28

BETWEEN:

HIS MAJESTY THE KING

– and –

M.B.

Defendant

Elizabeth Wilson, for the Crown

Amanda Ross, for the Defendant

HEARD: October 3, 4 and 5, 2024

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code of Canada, information that may identify the person

described in this ruling as the complainant may

not be published, broadcasted, or transmitted in any manner.

JUSTICE I.F. LEACH (ORALLY)

Introduction

1The accused in this matter, Mr M.B., is charged with one offence: i.e., one count of sexual interference, contrary to section 151 of the Criminal Code, (“the Code”).

2As specified in the underlying indictment, the alleged offence is said to have been committed between September 30, 2020, and April 28, 2021, here in the City of Stratford, Ontario, in the Southwest Region. However, as noted in more detail below, evidence led by the Crown suggested, with more specificity, that the alleged offence took place on a number of separate occasions both here in Stratford and in the city of Waterloo, in the Central South Region.

3The identified complainant in relation to the charged offence is Mr B.’s daughter, Z.Z.; a child born on a specified date in July of 2014, who accordingly would have been six years old at the time of the alleged misconduct underlying the charge, and who was nine years old at the time of the trial, which took place before me here in Stratford over the course of three days this past October.

Sources of evidence, including formal admissions

4During the trial, I was presented with evidence from a number of sources.

5First, I received testimony from the complainant Z.Z., the Crown’s first witness. Pursuant to a number of rulings I made at trial:

a. Z. was permitted to provide her testimony from outside the courtroom, pursuant to s.486.2(1) of the Code, via a video link to a room situated elsewhere in the building.

b. Z. was permitted to provide her testimony while in the presence of a support person, pursuant to s.486.1(1) of the Code, with Ms Julia Wright, (who was identified as a worker with the local Victim Witness Assistance Program here in Stratford), sitting close to, and in the same room as, Z. during the course of her testimony.

c. Z. was qualified to give her testimony pursuant to section 16.1 of the Canada Evidence Act, R.S.C. 1985, c.C-5.

d. Z.’s testimony included, and/or incorporated into her testimony-in-chief in particular, the content of an earlier video-recorded interview of Z. conducted by Detective Constable (“D.C.”) Federman of the Stratford Police Service on April 30, 2021, in a child friendly environment at the offices of the Huron-Perth Children’s Aid Society; i.e., with the statements made by Z. during the course of that interview being adopted by Z. during the course of her testimony pursuant to section 715.1 of the Code. A copy of that video recording was marked as the first numbered exhibit in the trial. While I also was provided with a suggested corresponding transcript of what was said during that recording of the interview, that transcript was presented and received only as a suggested aide-memoire, (e.g., to help me follow along with what was being said on the recording and by whom), and which accordingly was marked in due course only as a lettered exhibit for identification, rather than a numbered exhibit, in the trial. In particular, I was mindful at all times that it was up to me as the trier to determine what actually was said during the video recording and by whom, and that it was my obligation, in reaching my conclusions in this trial, to rely on my perceptions and determinations in that regard, including any perceived deviations of what I heard from the proffered transcript. In that regard:

1. I nevertheless think it helpful to indicate, at the outset, and in case particulars in that regard should be required in another place, my finding that the proffered transcript was remarkably accurate, in terms of providing an accurate and complete reflection and/or indication of what was said by Z.Z. and D.C. Federman during the video-recorded interview, apart from the need to insert an indication, on page 49 of the transcript, at line 12, that the word Z. said, and which the transcriptionist marked as “indiscernible”, was the word “nonsense”. I otherwise hereby find and confirm that, apart from that one minor necessary correction, the transcript marked as Exhibit “A” for identification in the trial provides an accurate indication of the words that were said during Z.’s interview by the police on April 30, 2021. In that regard, and without limiting the generality of the foregoing, I also agree with the transcriptionist’s remaining indications that certain words spoken during the interview by Z. and D.C. Federman were indeed “indiscernible”, at least by me as the trier of fact.

2. Having said that, I also think it advisable to note for the sake of completeness that there were some gestures occasionally being made by Z. during the police interview, to underscore or clarify what she was using her words to describe; gestures which understandably were not always noted, and which were not described by the transcriptionist, in the aforesaid transcript. In my view, such gestures were largely consistent with the words Z. was saying and did not add a great deal, but I note, for example:

a. that during her comments noted on page 21 of the transcript, at lines 18-20, Z. used hand gestures to highlight what she meant by alleging that her father had touched “the middle” area of her vagina between its “two parts” on either side;

b. that during her comments noted on page 22 of the transcript, at lines 4 and 20, Z. rubbed a chair with her hand to demonstrate, in terms of the extent of applied pressure and back and forth movement, how her father allegedly had moved his hand on her vagina;

c. that during her comments noted on page 30 of the transcript, at lines 21-24, Z. made an accompanying gesture with her hands and arms to emphasize how her father allegedly had lifted her dress to touch the area of her underpants;

d. that during her comments noted on page 53 of the transcript, at lines 6-16, Z. used a specific hand gesture to indicate approximately how full from its top a glass of pineapple juice had been when her father allegedly had made her drink from it;

e. that during D.C. Federman’s comments noted on page 56 of the transcript, Z. opened her mouth, (i.e., dropping her jaw slightly with lips apart), to indicate how a “grandma” allegedly witnessing Z. being touched inappropriately by her father at a park had reacted with apparent surprise or shock at what the “grandma” allegedly had seen;

f. that during her comments noted at page 67 line 28 to page 68 line 4 of the transcript, Z. once again used hand gestures to underscore her description of her father allegedly touching the area of her “bum” by touching the area generally centred in the region between her two buttocks; and

g. that during her comments noted at page 68 line 13 to page 69 line 12 of the transcript, Z. once again was using successive hand gestures to emphasize how her father allegedly would touch her vaginal area first before touching the area of her “bum”.

e. The video-recorded interview evidence adopted by Z. and incorporated into her testimony was then supplemented by further examination-in-chief and cross-examination in relation to Z. Crown counsel chose not to conduct any re-examination in that regard.

6Second, after receiving that evidence from Z., I received testimony from C.Z.; the second and final witness called by the Crown. Ms Z. is the former partner of the accused Mr B. and Z.’s mother. She was examined, cross-examined, (during which an application filed in the family law proceedings between Mr B. and Ms Z. was identified and marked as the second numbered exhibit), and briefly re-examined.

7Following completion of the Crown’s presentation of evidence, the defence elected not to call or present any evidence.

8On consent, however, the evidence presented for my consideration included facts formally agreed upon by the parties, which were reduced to writing and marked as the third and final numbered exhibit in the trial. In particular, it was formally agreed by the parties:

a. that all incidents and details of sexual touching made to D.C. Federman by Z. were captured in the videotaped interviews of Z. conducted on April 30, 2021, and May 5, 2021 – although I note again that only the first videotaped interview was played and adopted by Z. via section 715.1 of the Code during the course of her testimony; and

b. that no additional information regarding sexual touching was made to D.C. Federman by Z. before or after the filming of the aforesaid videotaped interviews.

Charge and essential elements

9Returning to the formal charge against Mr B., it is set forth in what was formally labelled as Count 2 of the underlying indictment, (with the original Count 1 of the indictment being formally withdrawn at the request of the Crown at the outset of trial, shortly before Mr B. re-elected his mode of trial to trial by judge alone in this court and his arraignment on the remaining charge set forth in the original two-count indictment.

10Again, that remaining charge is formally set forth in what was originally labelled Count 2 of that indictment, and reads as follows:

M.B. STANDS CHARGED: …

2. that between the 30th day of September, 2020, and the 28th day of April, 2021, at the City of Stratford, in the Southwest Region, he did for a sexual purpose touch Z.Z., a person under the age of sixteen years directly with his hands, contrary to section 151 of the Criminal Code of Canada.

11Before proceeding further, I think it helpful to note and review the essential elements of the sexual interference offence with which Mr B. is charged; i.e., the necessary components of the offence which must be proven by Crown counsel beyond a reasonable doubt in order to warrant a conviction of Mr B. in relation to that charged offence.

12For me to find Mr B. guilty of sexual interference, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

1. that Z.Z. was under the age of 16 at the relevant time;

2. that Mr B. touched Z.Z.; and

3. that the touching of Z.Z. by Mr B. was for a sexual purpose.

13In relation to the first essential element of sexual interference, (i.e., focused on whether Z.Z. was under the age of 16 at the relevant time:

a. a person does not become 16 years old until his or her sixteenth birthday; and

b. Crown counsel does not have to prove that the accused knew how old the complainant was at the relevant time.

14In relation to the second essential element of sexual interference, (focused on whether Mr B. touched Z.Z.):

a. touching involves intentional physical contact with any part of a complainant’s body;

b. the contact may be direct, (such as touching with a hand or other party of the body), or indirect, (such as touching with an object or through clothing);

c. force is not required but an accidental touching is not enough; and

d. it does not matter whether the complainant agreed to the touching.

15In relation to the third and final essential element of sexual interference, (focused on whether Mr B.’s touching of Z.Z. was for a sexual purpose): touching is done for a sexual purpose if it is done for an accused’s sexual gratification, or to violate a complainant’s sexual integrity, and includes any act meant to degrade or demean a complainant in a sexual way.

16Throughout my assessment of whether all essential elements of the charged offence against Mr B. have been established beyond a reasonable doubt, I have regard to all of the principles and comments I have just outlined.

General principles

17Before turning in more detail to the specifics of this case, I also think it helpful to outline a number of additional general principles I bear in mind throughout my approach to this matter.

18Many of them are similarly outlined or reflected in comments routinely provided through judicial instructions to jurors, and include the following:

1. First, I have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter, Mr B. is presumed to be innocent, in relation to the charge against him, in respect of which he has entered a plea of “not guilty”, and that presumption of innocence remains with him throughout this matter, from beginning to end, in relation to the charge, unless and until the Crown establishes his guilt with respect to that alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the essential elements of the offence charged against Mr B. that are not admitted, never shifts. In particular, Mr B. has no obligation whatsoever to establish his innocence.

2. Second, in relation to the “reasonable doubt” standard, and as per the guidance offered by the Supreme Court of Canada in authorities such as R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320:

a. I am ever mindful that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, nor a doubt based on sympathy for, or prejudice against, any person involved in this trial. A “reasonable doubt” is, instead, a doubt that arises logically from the evidence, or the absence of evidence.

b. Moreover, it is not enough for me to believe that Mr B. is “probably” guilty or “likely” guilty of the charged offence. Proof of “probable” guilt or “likely” guilt falls short of proving guilt “beyond a reasonable doubt” and is not proof of guilt beyond a reasonable doubt.

c. On the other hand, I also bear in mind that it is nearly impossible to prove anything to an absolute certainty, that “absolute certainty” accordingly is a standard of proof that is impossibly high, and that Crown counsel is not required to meet that standard of proof.

d. In essence, in order for me to find that Crown counsel has proven beyond a reasonable doubt that Mr B. is guilty of the charged offence, I must be sure that Mr B. committed that charged offence. If, following careful consideration of all the evidence, there remains in my mind a reasonable doubt as to whether Mr B. committed the charged offence, I must find him not guilty of that offence.

3. Third, how much or little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify, one way or the other. My duty is to consider all the evidence. As the trier, I may decide that the testimony of fewer witnesses – or perhaps just one witness – is more reliable than the evidence of a larger number of witnesses. In other words, my task is to consider carefully the testimony of each witness, and to decide how much or little I believe and accept of what each witness has said. I am not to decide the case simply by counting witnesses. It is the quality of evidence, rather than the quantity of evidence, that determines persuasive force and/or whether or not commission of a charged offence has been established beyond a reasonable doubt.

4. Fourth, as emphasized in decisions such as R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and R. v. Neff, [2012] O.J. No. 5618 (S.C.J.), our law generally does not require corroboration of a complainant’s evidence in order to found a conviction. Moreover, that general principle is reinforced in relation to the offence of sexual interference by section 274 of the Code, which specifically indicates that, if an accused is charged with any of the offences listed therein, (a list which includes the section 151 offence of sexual interference), no corroboration is required for a conviction. The testimony of a complainant, standing alone, may be sufficient to establish a charge in relation to any of those offences beyond a reasonable doubt, provided that testimony is found to be credible and reliable. Because the standard of proof beyond a reasonable doubt is a high one, triers of fact frequently may look for corroboration where guilt or innocence hinges on the testimony of a single witness. However, while such evidence is often helpful, it is not a requirement.

5. Fifth, while there is no prescribed formula or method for assessing the testimony of witnesses, I am mindful of various considerations frequently employed by triers of fact to help decide how much or how little I will believe and rely upon the testimony of any witness - bearing in mind that I am free to accept some, none, or all of the testimony of any witness. In particular such triers routinely consider matters such as the following:

a. whether a witness seemed honest;

b. whether a witness had any reason to not tell the truth, or give evidence more favourable to one side or the other, such as an interest in the outcome of the case;

c. whether a witness had the opportunity and ability to make accurate and complete observations about an event or occurrence addressed in his or her testimony;

d. whether the witness seemed to have a good memory, or any reason to remember or forget certain events or details -- which in turn might depend on such things as whether the event or occurrence addressed by testimony was something unusual or routine, or not of any obvious importance at the time;

e. whether any memory difficulties seemed genuine or made up as an excuse to avoid answering questions;

f. whether the testimony given by the witness was really what he or she personally saw or heard, or an account possibly based on information or statements provided by others;

g. whether the testimony of a witness seemed reasonable and consistent as he or she gave it, and whether it was similar to or different from what other witnesses may have said about the same events;

h. whether there were any inconsistencies within the testimony of a witness, or with earlier statements or actions by the witness, and if there were, whether they related to things that were important or minor details, reflected honest mistakes or deliberate lies, had any sensible explanation, or really made the main points of his or her testimony more or less believable and reliable; and

i. the manner or demeanor of a witness while he or she was testifying – while nevertheless also bearing in mind that the existence of many variables, (such as the inherently uncommon experience of testifying, and the different and varied abilities, values, and life experiences of individual witnesses), prevents demeanor from ever being the only or most important factor in deciding what testimony to accept.

19In relation to that last consideration, (i.e., focused on the manner or demeanor of a witness while he or she was testifying), our Court of Appeal has emphasized, in authorities such as R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at pages 311-315, and R. v. S.(W.), 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811 (C.A.), at paragraph 19, the importance of triers bearing in mind that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct, and such witnesses can be very persuasive. However, the issue is not merely the sincerity of a witness but the reliability of his or her testimony. Demeanor alone therefore should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

20The general principles and considerations I have mentioned so far generally are applicable to all criminal cases, regardless of the nature of the particular offence or offences charged against an accused.

21However, there are additional considerations to be kept in mind in relation to a case such as this, involving the testimony of a child under the age of fourteen. As emphasized in cases such as R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, R. v. S.(W.), supra, and R. v. F.(C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, and the standard instructions routinely provided to our criminal juries in relation to such matters:

a. In recent years, the notion of evidence from children being inherently unreliable, and therefore always requiring treatment with special caution, has been discarded.

b. At the same time, there has been a growing appreciation that it is not always appropriate to apply adult credibility assessment standards to determine the credibility of a child. In particular, our courts now recognize that children have peculiar perspectives which can affect their recollection of events, and they do not always have the same ability as adults to recall precise details or to describe events fully and accurately.

c. For such reasons, a trier may choose to regard inconsistencies in the testimony of a young witness, especially in relation to peripheral matters such as time and location, as less significant that they would be if noticed in the testimony of an adult.

d. The important thing for a trier to consider is whether such deficiencies, assessed in context, mean that the young witness may have misconceived the events he or she has described. In making that assessment, and deciding how much or little to believe and rely upon in relation to the evidence of such a child witness:

1. triers generally are to bear in mind that every person giving testimony in court, of whatever age, is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate;

2. in relation to child witnesses, the trier nevertheless should keep in mind, in particular, matters such as the child’s intelligence and experience, his or her ability to observe and remember what happened, his or her ability to understand questions that were asked and to give truthful and accurate answers, and whether any differences in his or her account of events relate to something important or only to minor details; and

3. the trier generally should approach such matters with good common sense.

e. In cases where part of the testimony of such a child witness includes an earlier videotape of the child describing the circumstances in which a charged offence or charged offences are said to have occurred, adopted, and incorporated into the evidence of the child witness at trial pursuant to s.715.1 of the Code, a trier may also consider other factors, including:

1. the circumstances in which the videotape was made;

2. the behaviour of the child witness when he or she made the videotape and testified at trial;

3. similarities and differences between the videotape and the child’s evidence at trial;

4. the remainder of the evidence at trial; and

5. that children, even more than adults, generally will have a better recollection of events shortly after they occurred than they will some weeks, months or years later, such that a videotape made within a reasonable time after an alleged offence, describing the alleged underlying offensive conduct, will almost inevitably reflect a more accurate recollection of events than testimony given later at trial.

f. However, while triers must assess witnesses of tender years for what they are, (i.e., children and not adults), and should not expect such witnesses to perform in the same manner as adults, this does not mean that triers should subject the testimony of children to a lower level of scrutiny for reliability than that applied to adults. In that regard, our Court of Appeal in particular has expressed concern that trial judges inadvertently and inappropriately may be relaxing the proper level of scrutiny to which the evidence of children should be subjected. Our Court of Appeal accordingly has emphasized that changes made to evidentiary rules were intended to make child evidence more readily available to the court by removing the restraints on its use that previously existed but were never intended to encourage an undiscriminating acceptance of the evidence of children while holding adults to higher standards.

22Our courts also have emphasized certain additional principles and considerations applicable to cases involving allegations of traumatizing offences such as sexual interference. In that regard, and as emphasized, in authorities such as R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), affirmed R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, and R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833 (C.A.):

a. Our courts now reject dated stereotypical assumptions and myths of how persons react to such trauma, and instead recognize that there actually is no inviolable rule on how people who are the victims of sexual interference or other forms of sexual abuse will behave.

b. In many cases, the reality of such variable responses has shaped how our courts now address the possibility of delayed reporting of offences such as sexual interference, sexual assault, and other forms of sexual abuse. In particular, our courts now recognize that some victims will report such an offence immediately, while other victims may delay disclosure for a substantial period of time for a variety of legitimate reasons, such as embarrassment, humiliation, lack of understanding or knowledge, a desire to avoid the destruction of domestic or personal relationships, and/or fear of reprisals from the accused. Indeed, some victims may choose to never disclose such abuse voluntarily, although it occasionally comes to light in other ways. For such reasons, a delay in disclosure of sexual misconduct, standing alone, will never give rise to an adverse interference against the credibility of a complainant.

c. For similar reasons, it is an error of law to draw adverse interferences against the credibility of a sexual abuse complainant by purporting to measure his or her reactions to such an alleged offence by reference to some misguided notional concept of how the victim of such an offence normally would be expected to react and behave in such circumstances. There simply are no such “norms” of reaction or behaviour that one should expect of such victims and making express or implicit use of such supposed but non-existent benchmarks of ordinary behaviour, (e.g., by shrouding them in mistaken notions of supposed “common sense”), therefore involves fallacious reasoning. To cite but a few examples in that regard:

1. Suggestions that sexual interference or sexual assault complainants who do not raise an alarm, resist with forceful struggle, or fight back are in fact consenting to sexual touching rely on archaic, outmoded and unreliable stereotypes. See R. v. Seaboyer, supra; and R. v. Dadson, 2018 ONSC 4823, at paragraph 11.

2. Suggestions that a victim of sexual abuse should be expected to flee before, during or immediately after the commission of such an offence, or thereafter necessarily take or want to take steps to avoid someone who has sexually abused them, perpetuates myths and stereotypes about the nature of sexual abuse, and also ignores the law. See R. v. Ewanchuk, supra, at paragraph 95, and R. v. Dadson, supra, at paragraphs 27-29.

3. More generally, it is wrong to suppose that the thoughts and responses of sexual abuse victims at or around the time of such an offence will conform consistently with detailed rational analysis, carefully weighing all relevant factors that might militate in favour of one course of action or another. It is far more likely that a person in that position might have fleeting thoughts of different sorts that were not the subject of such detailed rational analysis. Exposure of rational inconsistencies through cross-examination of a complainant accordingly should not be given undue weight, although it remains a piece of the overall mosaic of the case to be considered. See R. v. Dadson, supra, at paragraph 12.

d. On another note, relating to improper reliance on myths and stereotypes, our appellate courts also have emphasized that there is absolutely no evidence to suggest that false allegations are more common in relation to cases involving allegations of sexual abuse than in cases involving other alleged offences. Indeed, given the data indicating the strong disincentives to reporting such offences, it seems much more likely that the opposite is true. See R. v. Osolin, [1993] 4 S.C.R. No. 135, at paragraph 50.

23With all of the above principles in mind, I turn next to a consideration of the specific evidence tendered in this case.

Review of evidence

24The trial of this matter involved presentation of evidence that extended over the course of two days, prior to the receipt of counsel submissions on the third day of trial.

25While I have considered and have regard to all of that evidence, I will not purport to reiterate or describe all of that evidence in complete detail here. I will instead mention only those aspects of the evidence which I consider more relevant to the issues I have to decide.

26For organizational purposes, I will begin with an outline or summary of general contextual evidence that in my view seemed non-controversial and/or undisputed, (having regard to the nature of defence counsel cross-examination), which I therefore was inclined to accept, followed by an outline of the testimony I received in relation to more controversial matters focused on supposed commission of the alleged offence, before returning to more specific consideration of the particular evidence relating to the essential elements of the charged offence, (including further comments about some of the considerations that went into my assessment of witness credibility and reliability), in order to determine an appropriate verdict.

CONTEXTUAL EVIDENCE

27Certain aspects of the evidence I received, (e.g., relating to familial background and relationships, arrangements relating to Z.’s parenting time arrangements, and the timeline of certain events), seemed relatively uncontroversial and largely undisputed.

28I think it helpful to start with a brief overview of such evidence, as it provides important context for assessment of more controversial testimony I received in relation to alleged commission of the charged offence, and why there may be reasons to question the credibility and/or reliability of some of that testimony.

29With that in mind, I begin by noting the following findings I have made, based on my view that such matters generally were not controversial or effectively challenged, were admitted during the course of cross-examination, were reflected in the family law litigation application that was marked as exhibit 2 in the trial before me, and/or were agreed matters of fact:

a. M.B. and C.Z., (who was born and raised in Italy but moved to Canada in 2007), began a relationship in September of 2011 or 2012, at which time they were living in the city of Toronto. Both had children from previous relationships. In that regard:

1. Mr B.’s three children were considerably older and apparently independent adults who generally did not reside with their father and Ms Z., although one occasionally and temporarily resided with the couple in Vaughan during a university co-op placement. Generally, Mr B. and Ms Z. otherwise would see Mr B.’s adult children only during holiday celebrations.

2. Ms Z.’s children included her oldest child, who gender transitioned from male to female and from the name L. to the name L., and her second child; i.e., a son named G. Both children lived with Mr B. and Ms Z. in their Toronto home, although L. went to live for a period of time in a residential school and/or treatment centre.

b. Mr B. and Ms Z. are the biological parents of one child they have in common; i.e., the complainant Z.Z., who was born on [a specified date in July of] 2014. At the time of Z.’s birth, Mr B. and Ms Z. were living in the city of Vaughan, Ontario. They generally continued to reside there together, (apart from a year of physical separation when Ms Z. temporarily moved with the children into a nearby separate residence), until 2017, at which point the couple and the children living with them relocated to the city of Stratford, Ontario, where they lived in a home jointly owned by Mr B. and Ms Z.

c. The relationship between Mr B. and Ms Z. nevertheless was a troubled one in numerous respects. Without limiting the generality of the foregoing:

1. Ms Z. considered Mr B. to be someone who was often very angry.

2. It seems undisputed that Mr B. and Ms Z. have very different parenting styles, which in turn led to disagreements and conflict when Mr B. became frustrated with Ms Z.’s approach to anxieties, behavioural issues and other conduct of her children L. and G., and Ms Z. rejected Mr B.’s views on how such matters should be addressed.

3. At one point, when Ms Z. was approximately nine months pregnant with Z., she indicated to Mr B. that she did not think their relationship was going to work, (e.g., because of their different personalities and parenting styles), and she expressed a desire to move back to Italy. However, Mr B. responded by indicating his view that Ms Z. could not relocate to Italy, as she was pregnant with his child. The relationship thereafter continued, with the couple continuing to live together for several years after Z. was born.

4. Arguments between the couple nevertheless continued, in relation to various matters. For example, Ms Z. increasingly expressed her view that Mr B. was controlling and abusive; e.g., insisting on a preference for cottage vacations here in Canada, and preventing Ms Z. from vacationing in Italy with all of her children, including Z.

5. Disputes between the couple were especially contentious in relation to Ms Z.’s son G., with whom Mr B. also was having arguments that would get “pretty heated”; e.g., to the point of the police being called by Ms Z. on one occasion, at Mr B.’s request. In time, those particular difficulties culminated with Mr B. indicating to Ms Z., in or about May of 2020, that he no longer wanted G. to live in their home; an indication that resulted in Ms Z.’s decision that it was time for her and Mr B. to separate.

d. After such extended difficulties in their relationship, Mr B. and Ms Z. therefore separated in May of 2020; i.e., with May 12, 2020, subsequently being agreed upon as their date of separation for the purposes of ensuing family law litigation. They nevertheless continued to reside together under the same roof in the city of Stratford until approximately July 13 or 14, 2020, at which time Ms Z. relocated, along with L., G., and Z., to a residence in the city of Waterloo, Ontario. (According to Ms Z., she initially had asked Mr B. to vacate the family home in Stratford, enabling her and all her children to stay there, as Ms Z. thought that would be best for Z.’s stability. However, when B. declined to vacate, Ms Z. made the decision to relocate to Waterloo with her children.) Mr B. continued to live in the same Stratford home the family had shared, and eventually “bought out” Ms Z.’s interest in that property, in or about October of 2020.

e. Through apparently civil discussion and agreement, (and the possible assistance of family lawyers who apparently were retained by the parties to assist with such matters, including not only parenting time but financial support for Ms Z. and the children, as Ms Z. was not employed outside the home), arrangements also were made for Z. and her father to have parenting time together, notwithstanding her parents’ separation and resulting geographic separation. In that regard:

1. On the advice of Z.’s therapist, the parenting time arrangements initially and deliberately did not involve overnight visits between Z. and her father; i.e., with Z. coming to stay at Mr B.’s residence in Stratford. Such overnight visits were to be introduced gradually, after a period of Z. initially having parenting time with her father by way of four hour visits at least once but usually twice a week, (from after school or the time when school would let out to approximately 6:00pm or 7:00pm, with her father either picking Z. up in Waterloo to spend time in Stratford before returning her to Waterloo the same day, or Mr B. and Ms Z. sharing transportation responsibilities by agreeing to meet at locations between Stratford and Waterloo, such as the venue where Z. took horseback riding lessons), with such day visits to be followed by the introduction of overnight visits on alternating weekends from Friday after school or the time school normally would let out to the start of school or normal start time of school on Monday morning. At the request of Ms Z., it was also contemplated that the overnight visits nevertheless also would be introduced and extended gradually; i.e., beginning with Z. staying at her father’s residence just one night before returning to her mother’s home in Waterloo, to be followed by Z. staying two consecutive nights there on the next scheduled week-end visitation, before a move to Z. staying with her father in Stratford for the entirety of each such week-end, from Friday afternoon to Monday morning.

2. That contemplated gradual transition towards recurrent and successive overnight visits between Z. and her father nevertheless did not materialize. In particular:

a. After the first scheduled overnight visit between Z. and her father on an unspecified date in August of 2020, (at which time Z. began a visit with her father at approximately 2:00pm or 3:00pm on a Saturday, with her father picking her up from her residence in Waterloo, before being returned by her father to Waterloo at approximately 3:30pm the next day), Z. indicated that she did not want to see her father or go to her father’s Stratford home any more.

b. Notwithstanding such indications from Z., there were further unsuccessful attempts made to implement the contemplated overnight visits between Z. and her father. For example:

i. Two weeks after the initial problematic overnight visit, (i.e., in late August or early September of 2020), Mr B. once again picked Z. up from Waterloo at approximately 2:00pm or 3:00pm, and drove her back to Stratford, with another overnight visit apparently being contemplated. However, at approximately 9:00pm or 9:30pm that evening, Mr B. telephoned Ms Z. to indicate that Z. was crying, very upset and wanting to “come home” to her mother’s residence in Waterloo. In the result, Mr B. drove Z. back to the Waterloo residence that evening, arriving there at approximately 10:00pm.

ii. There was a further occasion in September of 2020 when Mr B. once again picked Z. up in Waterloo on a Saturday afternoon, at approximately 2:00pm or 3:00pm, and drove her back to his home in Stratford. However, at approximately 6:00pm that evening, Z. herself telephoned Ms Z. saying that she (Z.) needed to “go home”, and that her mother needed to come and pick her up. Although Mr B. was indicating that he could drive Z. back to Waterloo, Z. was insistent that she wanted her mother to come and pick her up from the Stratford home, and Ms Z. did so.

3. Notwithstanding those failed attempts to continue with overnight visitations between Z. and her father, day visits between them continued after the resumption of Z.’s school attendance in September of 2020, although such visitations also proved to be challenging and problematic. In that regard:

a. Z. indicated that she also did not want to travel in her father’s car anymore, and her wishes in that regard also were respected and accommodated. In particular, Ms Z. sometimes would drive Z. to Mr B.’s home in Stratford and stay in the car in front of the home waiting for Z., (at Z.’s request), if Z. was willing to enter the home at all. On some of those occasions, Z. nevertheless would indicate that she did not want to go inside her father’s home.

b. At other times, (perhaps as much as two or three times a week, and frequently on the Saturday and Sunday of each week, although Ms Z. also recalled a period where visits were occurring on Mondays, Wednesdays and Fridays), Mr B. would drive to the Waterloo residence to spend time with Z. outside of that residence. In particular, during warmer weather, Z. and her father would spend time in the park and playground just across the street from the Waterloo residence. When the weather got cooler, Z. and her father would spend time together in his car as it remained parked in front of the Waterloo residence. Such visits nevertheless also frequently proved to be complicated and problematic; e.g., with Z. refusing to exit the Waterloo residence to see her father, or initially going outside to see her father and then running back inside the Waterloo residence. In the result, such visits either effectively did not occur, or would last for durations that varied considerably from one visit to the next. Although there were discussions of Ms Z. possibly driving Z. to meet with Mr B. at locations in the community with activities Z. enjoyed, (such as rock-climbing or skating), Mr B. demurred in that regard, and visits of that nature never came to pass.

c. On the whole, day visits between Z. and her father in the varying nature described above generally continued from July of 2020, (when Z. relocated with her mother from Stratford to Waterloo), until the time of her allegations of inappropriate touching by Mr B. made in late April of 2021, albeit with an interval in or around January of 2021 when all in person visits between Z. and her father were stopped for a time while Mr B. was recovering from surgery, during which period Z. and Mr B. spent time with each other through video calls until Mr B. was feeling better. In person visits thereafter resumed, although they initially were of shorter duration, (e.g., one to two hours), until Mr B. felt capable of returning to the intended “normal” in person visit duration of four hours. Visits also were complicated for a time by the onset of the COVID-19 pandemic, the effects of which became particularly pronounced in Canada in March of 2020; e.g., with Mr B. apparently having to remain isolated in quarantine in his home for a time after necessarily making a trip to New York, (apparently associated with the death of his uncle), and discussion of Z. and her father having visits outdoors as a precautionary measure.

f. Throughout such developments, and perhaps because of them, the discourse and communications between Mr B. and Ms Z. were becoming increasingly contentious. Without limiting the generality of the foregoing:

1. Mr B. expressed his view that his relationship with Z. seemed to be getting worse after the separation, and he blamed that on Z.’s therapist and Ms Z. personally; i.e., alleging that Ms Z. was trying to alienate Z. from him.

2. By October of 2020, Ms Z. admittedly had formed a strong desire to relocate to Italy with all of her children including Z., in order to live there permanently, and that proposal had been put to Mr B. through Ms Z.’s family lawyer. Mr B. nevertheless had then indicated his disagreement with that proposal; i.e., indicating in particular that he was not content to have Ms Z. move back to Italy, taking Z. with her. Mr B. apparently had no objection to Ms Z. relocating to Italy with G.

g. On January 21, 2021, Ms Z. filed an application in the Superior Court of Justice at Kitchener, formally commencing family law litigation in the wake of her separation from Mr B. The precise nature of the relief formally sought by Ms Z. in that proceeding is set forth in the copy of that application which was marked as Exhibit 2 in the trial before me, and I will not reiterate its content in exhaustive detail here. In a manner typical of such circumstances and corresponding proceedings, (familiar to me through my frequent dealing with such family law litigation), Ms Z. sought various forms of relief including orders concerning parenting arrangements and decision-making responsibility in relation to Z., disclosure, child support in relation to Z. and G., and spousal support for Ms Z. As emphasized and explored in considerable detail during the cross-examination of Ms Z., the relief she sought in the family law proceedings, in relation to Z., included a request for a court order whereby Z. would primarily reside with her mother, and permitting Z. to relocate with her mother from Canada to Italy, with Mr B. thereafter having access (now referred to as parenting time) with Z. in a manner deemed appropriate by the court. In that regard, the detailed grounds set forth in Ms Z.’s application for requesting such relief included the following:

1. Z. suffers from anxiety, (including separation anxiety when separated from her mother), in respect of which Z. had been seeing a psychologist since the age of four.

2. It was said that Z.’s strongest connections in Canada were to her mother Ms Z., and to her siblings L. and G., with those older siblings already having decided that they wish to live in Italy, and L. having already moved there. It was emphasized that Ms Z.’s three children are close and miss each other when separated. In that regard, Z. was said to already have expressed feelings that she was missing her sister dearly.

3. It was emphasized that Ms Z. herself also wished to relocate to Italy for numerous reasons, including the following:

a. Ms Z. is from Italy, where her numerous supportive relatives and friends continue to reside, and has a Masters degree in economics from an Italian university.

b. Ms Z. has no family in Canada apart from her children, and no close friends here. Her social ties in Canada have been disjointed or severed; e.g., as a result of failed relationships, life as a single parent to young children, and multiple relocations.

c. Ms Z. also had never worked in Canada except on a very casual basis. Although she had embarked on post-secondary studies in Canada, she did not have a Canadian college or university degree and did not expect to have one until at least 2022. In the result, it was not reasonably possible for Ms Z. to obtain employment in Canada that would allow her to maintain the lifestyle she and Z. desired, including the costs of therapy, music and art instruction and private school tuition for Z.

d. If Ms Z. was permitted to relocate to Italy with Z., Ms Z. would have immediate remunerative employment with her family’s business, which owns and manages property, thereby allowing Ms Z. to achieve financial independence for the benefit of herself and her children. Ms Z. and her children also would be able to reside immediately with Ms Z.’s mother, resulting in a further economic benefit for Ms Z. and her children, while permitting Z. to benefit from ongoing immediate contact with her maternal grandmother and siblings L. and G., as well as other members of Ms Z.’s extended family in Italy.

e. While in Canada, Ms Z. and her children Z. and G. effectively were being obliged to endure forced separation from Ms Z.’s daughter L. and vice versa, insofar as L. already had relocated to Italy to reside with her maternal grandmother, (i.e., Ms Z.’s mother), with no intention of returning to Canada. L. also was said to be struggling with significant mental health issues and calling Ms Z. several times a day to ask that her mother come to live with her in Italy.

f. It was said that, if Z. was obliged to continue living in Canada, Ms Z. effectively would be obliged to decide whether to live in Italy with her children L. and G. or to live in Canada with Z.; a choice described in Ms Z.’s own application pleading as an “unbearable one”, in a situation where all of Ms Z.’s children needed to be with their mother.

g. It was said that, through the relationship between Mr B. and Ms Z., Mr B. had expressed an openness to moving to Italy or travelling to Italy for extended visits; i.e., something that would facilitate Mr B. having parenting time with Z. in Italy if Z. was permitted to move there.

h. It was emphasized that Z. herself already was fluent in Italian, and capable of reading and writing in Italian at the level of an Italian-born child of the same age. In other words, Z.’s relocation to Italy would not compromise her social or educational progress in any way.

i. For all the above reasons, it was emphasized that Ms Z. intended to move to Italy as soon as possible, if and when Z. was permitted to relocate there with her mother.

h. The first scheduled return date in relation to the aforesaid family law litigation was April 28, 2021, although I think I can take judicial notice of the reality that family law applications such as the one commenced by Ms Z. are never addressed and decided substantively on their first scheduled return date. To the contrary, in the absence of demonstrable urgency, and in accordance with Rule 14(4) of the Family Law Rules, such applications rarely result in the granting of any substantive relief by motion or otherwise until they have progressed, at the very least, to an initial case conference between the parties and their counsel if the parties have such representation. Depending on the state of the family court docket in the various judicial centres of this court, such case conferences may not occur for weeks or months after the initial scheduled return date of a family law application, which itself is frequently the subject of an initial adjournment. Indeed, Ms Z. confirmed, during the course of her re-examination, that the initial scheduled return date of her application on April 28, 2021, already had been rescheduled to a later date prior to the disclosure said to have been made by Z. on April 28, 2021.

i. The last visit between Z. and her father occurred on Wednesday, April 28, 2021. Further visits were suspended after Z.’s alleged disclosure to her mother that evening, (addressed in more detail below), of alleged misconduct by Mr B. in relation to Z. That disclosure in turn led to Children’s Aid Society involvement, and referral of the matter to the police for investigation.

j. Z. initially was interviewed by the police on April 30, 2021; an interview that was the subject of the video recording I described earlier, and which formed part of the substantive evidence presented at trial after its content was adopted by Z. during the course of her testimony. On the same day, (i.e., April 30, 2021), Ms Z. also had been interviewed by the police. While that interview also was the subject of a video recording, I was not asked to consider the substantive content of that interview of Ms Z., except to the extent it was the subject of cross-examination.

k. A further police interview of Z. was conducted on May 5, 2021, in the wake of Ms Z. contacting the police to indicate that Z. had disclosed additional information. Although that further police interview also was video-recorded, that video recording also was not played at trial, and the substantive content of that second police interview of Z. generally did not form part of her testimony at trial or the evidence I was asked to consider, except to the extent to which it was the subject of cross-examination. Although Ms Z. also was the subject of a further police interview on May 5, 2021, and that too was the subject of a video recording, I similarly was not asked to consider the substantive content of that interview, except to the extent it was the subject of cross-examination.

l. Although I was not presented with precise details in that regard, I infer that Mr B. was formally arrested and charged shortly after the statements Z. provided to the police on April 30, 2021, and/or May 5, 2021. His conditions of interim release no doubt included those which are standard in such circumstances, including restrictions preventing him from having any further contact with Z. pending variation or termination of those conditions.

m. Although the simultaneous family law proceedings formally continued until at least March or April of 2022, it was not disputed that Mr B. eventually “gave up” his resistance to Z. relocating to Italy with Ms Z., leading to Mr B. and Ms Z. signing a settlement agreement in March or April of 2022 that included terms giving Ms Z. permission to relocate to Italy with Z.

n. Ms Z. and Z. then permanently relocated from Canada to Italy on or about May 20, 2022.

o. Although Z. and her mother Ms Z. returned to Ontario to provide trial testimony in the proceedings before me, by the time of trial Z. normally continued to reside in Italy with her mother, brother G. and maternal grandmother. She attends school there, where she currently is in a grade three class, owing to an apparent lack of capacity in the grade four class she otherwise should be attending.

p. It was not disputed that, regardless of the outcome of this criminal proceeding, permission for Ms Z. and Z. to live in Italy would continue, pursuant to the settlement agreement reached and signed by Mr B. and Ms Z.

30Against that contextual backdrop, I turn next to an overview of the testimony I received in relation to more controversial matters.

WITNESS TESTIMONY

31As noted above, I will not attempt to provide an exhaustive review of the evidence I received from each of the two witnesses who testified at trial. The overview which follows instead focuses on some of the more contentious aspects of their testimony, to which I will return in further detail during the course of my analysis.

32As for the testimony of the young complainant, Z., including the video-recorded statements she made to D.C. Federman during her police interview on April 30, 2021, which she adopted during the course of her testimony at trial:

a. During the course of that video-recorded police interview, Z.’s statements, (which were not subjected to contemporaneous cross-examination for obvious reasons), included the following:

1. She initially said her father would touch her “private parts”, (which she clarified to mean her “vagina and bum”), at least once or twice during each of her visits with him. She added that, with the exception of the first alleged touching incident which was said to have occurred in late September of 2020, (described in more detail below), both forms of touching occurred on each such occasion; i.e., with her father touching “both every single time”, and “always” touching her vagina first and then her bum.

2. She indicated that such touching sometimes was over her clothing and sometimes inside her pants and underpants.

3. She also indicated that such touching was focused on the centre or “middle” of her vaginal area, and the centre of her bottom in the area between her buttocks, with her father sometimes rubbing his hand back and forth in those areas.

4. She said that whether such touching hurt would depend on whether her father did the touching “too hard” or not.

5. Z. initially indicated that such touching would happen “anytime”; e.g., when she was “going outside” and “outside”, (when her father was said to engage in such behaviour “in front of people”, including “kids and adults”, in venues such as the park, where such people supposedly would look at them and see what was happening), when visiting with her father in his car in front of her house when it was really cold outside, and when she was “at his house”.

6. However, Z. then went on to describe, with specificity, only a limited number of incidents where such touching of her vagina and bum by her father was said to have occurred. In particular, the specific alleged incidents she described, (which I have re-arranged in their suggested chronological order despite the way in which Z. addressed them during the video-recorded interview), included the following:

a. Z. said such inappropriate touching of her “private parts” by her father “started in late September”; i.e., “on a Wednesday” in late September of 2020, shortly before she then supposedly told her mother about the touching on October 1, 2020. In that regard:

i. Z. said she was out playing and about to dribble a basketball, when her father lifted up her dress to touch her vagina. Although Z. made a reference to her underpants in that regard, in my view it was not clear from the video recording whether she was saying that the touching occurred over or under her underpants.

ii. Z. said this was the only incident of sexual touching when her father did not go on to touch her bum after touching her vagina. In that regard, Z. said she thought her father “just decided” that would be better as he thought she “really likes the vagina – even if that’s not true”.

iii. Z. said that touching of her vaginal area on that occasion lasted approximately 18 seconds; a specific indication she demonstrated and confirmed by verbally counting off each second aloud.

iv. Z. said she responded to the inappropriate touching by saying “stop it” to her father, in response to which he allegedly said Z. loved when he did that.

v. Z. indicated that was the “first time” such inappropriate touching occurred, and that she regarded it as “a very bad and sad time in [her] life”.

b. Z. said the next incident of inappropriate touching by her father occurred on October 7, 2020, which she confidently said was a day that fell during a weekend visit with her father. She went on to add that she thought the incident had occurred on a Sunday of that particular weekend. In that regard:

i. Z. said that the incident occurred when she was alone with her father at her father’s house, although her father was waiting for her in front of the house.

ii. She recalled that she was wearing light pants, socks, and a shirt at the time, and that her father was clothed as well. In that regard, she recalled that her father “always” wore jeans, underpants, socks, shoes, a short or long-sleeved shirt, and a sweater on top if necessary.

iii. While Z. initially said she could not recall exactly what she was doing before the incident occurred, she then remembered that she was playing inside the house, and about “to get the bouncy ball” her father had there, when her father took the ball, threw it in the bin, and then put his hand under her underpants to touch the middle area of her vagina for “about thirty seconds”, a specific duration which she once again was willing to confirm and demonstrate by counting the seconds aloud. Although there were some references to Mr B. possibly putting his hand “inside” Z.’s vagina, in my view Z. was indicating, (e.g., via reference to the areas of her mouth and subsequent answers), that her reference to Mr B. touching her in the middle of her vagina was an ambiguous but intended description of his touching the area in the centre of her vagina, without any clear indication of alleged penetration in that regard.

iv. According to Z., she responded to that touching by saying “Stop daddy”, which brought the touching to an end, although her father then stood “right in front of” her for a long time “like a statute”, (i.e., without saying or doing anything), until she went back to what she was doing before the touching occurred.

c. Z. said the next incident of alleged inappropriate touching by her father occurred on October 14, 2020. In that regard:

i. Z. said the incident occurred when she was visiting with her father in his car, while it was parked in front of her house.

ii. She recalled that she and her father had remained in the car during the visit, as it was a “little cold” or “really cold” out at the time, and she and her father usually stayed inside his car during such visits when the weather was cold, even though she wanted to go out.

iii. Z. remembered that her father had brought a board game, candy and “stuff to eat”, as well as a colouring book for her to use – although she hated the latter.

iv. Z. also recalled that her clothing on the day in question included a sweater, pants, underpants, and a hat.

v. Z. initially said that her father’s inappropriate touching occurred as she was “about to take [her] hat”, but later said it happened when she had noticed some kind of rubber object after “looking in the back” of the vehicle and was about to start playing with it. In either case, Z. began describing the relevant touching by saying her father had “put his hand to touch her in-between”, but “not in [her] pants”, before then saying the touching occurred by her father putting his hand inside her pants and underpants.

vi. Z. claimed that the inappropriate touching on that occasion stopped because her father was getting his car keys out of his pocket in order to drive her to his house; an intention which Z. says her father confirmed when she asked him during a later visit why he had been reaching for his keys. On the occasion in question, Z. says, she did not want to be taken to her father’s house, so she left the car and ran to her mom’s house, but only after receiving a candy from her father.

d. Z. said the next incident of inappropriate touching occurred the Sunday before Hanukkah in 2020. In that regard:

i. In relation to that alleged incident, (and in contrast to the other incidents she described to D.C. Federman), Z. herself did not specify an exact calendar date on which the incident was alleged to have occurred. However, I believe I can take judicial notice of the fact that, in 2020, Hanukkah began on the evening of Thursday, December 10, 2020, and ended the evening of Friday, December 18, 2020. If the incident Z. described to D.C. Federman occurred the Sunday before Hanukkah, that would place the incident on Sunday, December 6, 2020.

ii. Z. explained that her father is “a little Jewish”, and therefore celebrates the Hanukkah holiday. She said that, on the Sunday in question, she was wearing pants, (as she usually did after September), and her father had asked her to help him set the table for a family meal at his home. According to Z., she was “about to get the … fancy spoons and like the fancy forks out of the cupboard” when her father lifted up her shirt, put his hand inside and under her clothing, and touched her vagina for approximately 20 to 30 seconds; a specific time duration she once again was willing to confirm by verbally counting out the number of seconds one by one.

iii. When asked to explain how the inappropriate touching on that occasion had come to an end, Z. said that her father, (in apparent response to her asking him to stop what he was doing), said words to the effect of “Why should I stop? I just will this time because you don’t like it. But I think … you’re joking”, or “I’ll just take my hand off … because you don’t like it. I think you like it, right Z.?”

iv. Z. said she did not respond to those remarks by her father, as she was “tired of this nonsense”, and thinking “Why should I even answer him now?”, as the inappropriate touching “business” had been going on for “one month already”; an indication that would suggest the alleged touching had started in the first week of November, 2020, rather than at the end of September, 2020, as Z. very specifically had indicated in her earlier statements to D.C. Federman.

e. Z. claimed that there may have been other incidents of inappropriate touching on the specific dates of January 12, 2021, and February 1, 2021, but also said that she could not remember anything relevant to the charged offence that may have happened on those occasions.

f. Z. nevertheless recalled that her father had touched her inappropriately on March 1, 2021, or close to March 1, 2021. Initially, she could not remember any details of what may have happened on that date. She then recalled that, on the day in question, her father had forced her to drink a “really full” glass of pineapple juice despite her having an allergy in that regard; juice which was said to have been “left over from Hanukkah” several months earlier. She recalled coughing while attempting to due so, and her father saying in response that she was “just joking”, as drinking such juice would not make her cough, following which Z. says she “just ran to the car” where her mom was waiting for her. However, she then added that, before she had a chance to do so, her father had lifted up her skirt to touch her vagina; something she says her father was able to do because it was a “really hot day”, which had led to her wearing a skirt that day rather than pants.

g. Z. also recalled that her father had engaged in such touching while he and she were at the park in front of her house the Wednesday before her video-recorded interview on April 30, 2021; i.e., on Wednesday, April 28, 2021. In that regard:

i. Z. described how she was just going on the steps to the monkey bars in the park, and was about to get on those monkey bars, when her father, without lifting her, grabbed her dress or skirt to lift it up and touch both her vagina and her bum, and that her father did that “in front of everyone”.

ii. In the description Z. originally provided to D.C. Federman of what happened on the day in question, Z. specifically recalled that there were five other people present at the time; i.e., persons she described as “a mom and a dad”, a “very big sister” who might have been “30 years old”, and “two kids”, whom she estimated to be eight and five years old. However, later in the same video-recorded interview, she specifically recalled that there were seven other people in the park at the time of the incident; persons she described as “three parents”, (“a mom, a dad and a … grandpa or grandma”, with her being unable to remember whether the latter was male or female), and “four kids”, whose ages were 11 or 10, eight, five and three respectively.

iii. Z. initially said that “everyone” else who was present saw what her father had done, and was responding to it, (e.g., insofar as they “just looked at him”, like saying “What are you doing to that girl?’’, and “Why did that dad have to touch that girl on that place?”), although she then added that “maybe they were missing” it. Later in the same video-recorded interview, however, she returned to her position that “everyone saw it”, adding:

1. that she had seen “the grandma” respond by opening her mouth in shock;

2. that she had seen “the dad and the mom” responding by looking at each other, as if to say “What is that dad doing?”;

3. that the ten-year-old child was “shocked too”;

4. that the five-year-old had responded by saying, to her mother, “Why does that dad touch a girl on that part?”, and/or “Why is that dad touching that girl on her vagina?”;

5. that the dad and mom had not said anything in response to that question, because they seemed “too shocked” to say anything;

6. that the eight-year-old nevertheless had responded to what had happened and then to the five-year-old’s question by saying “Oh no, that’s some of the people that don’t listen to their child”; and

7. that the three-year-old had responded to the situation by crying.

iv. Z. says she herself reacted to her father’s inappropriate touching on that occasion by saying “Daddy, do you really have to do that?”, and “I hate that”. In response, she says, her father just tickled her.

v. Z. also said that she reported that incident of alleged touching by her father, in the park in front of her house, to her mother that evening, (i.e., the “night after it happened”), as she felt that was the “best time to tell her that”.

7. Z. told D.C. Federman that the occasions she described above comprised “all the times” her father had touched her inappropriately.

8. Beyond those specified incidents of successful inappropriate touching described by Z., she claimed there were “tons” of other occasions apart from those dates, and indeed “basically every time [she] saw [her father]” according to her, when Mr B. would try to touch her, but she would “just push his hand away” and “block it”, such that he could not touch her. According to Z., her father would then “run away” or “walk away” after such unsuccessful attempts to touch her inappropriately.

9. When asked by D.C. Federman how she was able to identify the particular dates on which the alleged sexual touching had occurred with such precision, Z. said that her father usually would provide her each time with a piece of paper with the relevant date written on it, (although he never gave her a reason why he was doing so), and which she then tried to remember so that she would be able to recall the dates in question “if [she would] ever go to talk with someone” about what happened, although she would always throw the pieces of paper away the second she got home from such visits with her father. She nevertheless also indicated later that she did not feel she needed the pieces of paper to recall the specific dates in question, as everything she did with her father “gets stuck in the front of [her] mind”, allowing her to “remember it right away”.

10. In response to specific questioning by D.C. Federman about whether Z. had talked with her mother about her father’s fingernails, (but only in response to such questioning), Z. confirmed that she had done so, and indicated that her father “never cuts his fingernails so that hurts a lot too”; i.e., when her father touched her on her vagina.

11. Z. emphasized that, as a result of such inappropriate touching by her father, she felt like she needed to be rescued when she was with her dad and go to her mom.

12. She said that she had told her father “a million times” that she did not liked to be touched “on those places”, and explained her feelings, (e.g., by saying “Daddy, I want to talk about something”, “I don’t like when you do that”, “Stop it please daddy”, and “I was trying to tell you a million times, stop it”), but that her father “doesn’t listen”. She also claimed to have had a conversation with her father in December of 2020, at his house, wherein she had expressly asked her father if he had touched her older stepsiblings in a similar way when “they were little like [her], and her father had said “no”, because “that was not what [people] did at those times”.

13. When asked if she had told her mother about her father’s inappropriate touching of her vagina and bum, Z. said she had told her mother about that “a lot of times”, including the previous October, (i.e., “on the first day of October”, in 2020, shortly after the first alleged incident of such touching was said to have taken place at “the end of September”), when Z. claimed to have specifically told her mother about her father touching her “private parts”, (although she could not remember where that conversation had occurred or what her mother’s response had been), and again two nights before the video-recording of her first police interview; i.e., making it clear to her mother that her dad was touching her vagina and bum, and that she didn’t like that.

b. Further evidence presented during the course of Z.’s additional testimony at trial included the following:

1. During the relatively brief initial examination in chief that followed Z.’s adoption of what she had said during her video-recorded police interview of April 30, 2021, Z. expressly indicated that she could not remember any other times her father had touched her “private parts”, (i.e., her vagina and her bum), apart from those she had described in that video-recorded interview.

2. During her extended cross-examination at trial, and in addition to numerous other matters addressed in cross-examination discussed elsewhere in these reasons:

a. Z. confirmed that she had been mistaken when, during her initial police interview, she had suggested that the alleged incident of her father touching her inappropriately while setting the table for a Hanukkah meal, (which she identified as a lunch with her father’s older children and their children), had occurred in October of 2020. She agreed that any such incident would have taken place later than that, as Hanukkah obviously took place later in the year.

b. Z. confirmed that she had made an additional allegation of misconduct by her father that had not been included in the video-recorded statement adopted at trial during the course of her examination in chief, or at any point during her further testimony in chief at trial; i.e., a claim that her father had taken a picture of her vagina and bum. In that regard:

i. Z. confirmed that she had told D.C. Federman, during her second police interview on May 5, 2021, (the video recording of which was not played at trial, nor tendered or adopted as substantive evidence), that her father had “taken her pants half off” to take the alleged photo of Z., and that Z. remembered that happening some time in January of 2021.

ii. Z. also acknowledged telling D.C. Federman that she could remember the timing of that incident, despite it supposedly being the only occasion of alleged misconduct by her father on which he had not provided her with a piece of paper bearing the relevant date, because it was a “really bad time”; i.e., so bad that she did not need such a piece of paper to help her remember the incident.

iii. However, Z. nevertheless also admitted that she did not remember the alleged photo incident at the time of her first police interview on April 30, 2021, and did so only between the time of that interview and her second police interview on May 5, 2021, after she had been talking with her mother on the weekend “about other things [her] dad had done”, and that her mother had helped her to remember about the photos her dad had taken.

iv. Z. also acknowledged in cross-examination that she nevertheless had forgotten the incident completely by the time of the preliminary hearing; i.e., indicating at the time that the only bad or upsetting thing her father had done to her in January of 2021 was to put a candy in her mouth that she had not wanted.

33As for the testimony of C.Z.:

a. It was not suggested in any way that Ms Z. personally had witnessed any of the alleged misconduct by Mr B. underlying the charge against him, and Ms Z.’s testimony accordingly was directed to more peripheral matters, such as the provision of basic contextual information I noted earlier, the timing and circumstances of Z.’s disclosure of alleged misconduct by Mr B., and cross-examination in relation to matters such as the possibility of Z.’s allegations and testimony being influenced by others, and by Ms Z. in particular.

b. In relation to the timing and circumstances of Z.’s disclosure of alleged misconduct by Mr B.:

1. At trial, Ms Z. was expressly asked/instructed not to indicate details of the substantive content of the disclosure Z. was said to have made in that regard, and Ms Z. accordingly refrained from doing so – at least until she was asked about some specifics in that regard during cross-examination.

2. However, Ms Z. said that Z. first spoke to her about such matters during bedtime conversation on Wednesday, April 28, 2021; i.e., during the evening, after Z. had a visit with her father earlier that day. It was Ms Z.’s recollection that Z. also probably had seen her father earlier that week, (e.g., on Monday, April 16, 2021), or during the week before.

3. In cross-examination, Ms Z. was quite definite in emphasizing and confirming that Z.’s disclosure on that occasion, (i.e., on April 28, 2021), was the “very first time” Z. had told her mother about any inappropriate touching of Z.’s vagina and bum by her father. She had no recollection of any earlier disclosure by Z. in that regard, despite Z.’s assertions to the contrary; e.g., in relation to alleged disclosure of such matters to her mother in October of 2020, or approximately two weeks before Z.’s first police interview on April 30, 2021.

4. Ms Z. described how, on April 28, 2021, in the immediate wake of receiving Z.’s disclosure, Ms Z. initially emailed three persons that evening, (i.e., her own therapist, Z.’s former therapist, and another therapist with whom Ms Z. was working), to obtain advice and/or instruction as to what Ms Z. should do with the information she had received. All three therapists were said to have indicated that Ms Z. needed to disclose the information received from Z., which in turn prompted Ms Z. to contact her family law lawyer for further advice and/or instruction regarding how best to make such disclosure to the relevant authorities.

5. After receiving that further advice and/or instruction from her family law lawyer, Ms Z. understood and/or believed that there generally were three typical avenues of making further disclosure of such information in such circumstances; i.e., a report to the police, a report to the local Children’s Aid Society, or attendance at a hospital – although the latter option was not possible at the time, owing to the prevailing COVID-19 pandemic and corresponding restrictions on hospital attendance. In the result, Ms Z. contacted the Kitchener-Waterloo Children’s Aid Society, which in turn referred the matter to the Huron-Perth Children’s Aid Society because Mr B. resided within the geographic area for which it was responsible.

6. It apparently was the Huron-Perth Children’s Aid Society which therefore made arrangements for police involvement, leading to the first police interviews of Z. and her mother conducted and video-recorded on April 30, 2021.

7. According to Ms Z., Z. nevertheless thereafter made further disclosure to her mother of additional alleged misconduct by Mr B. In particular, in the course of cross-examination, Ms Z. indicated the following, some of which previously had been indicated during the further statement Ms Z. provided to D.C. Federman on May 5, 2021:

a. Ms Z. said that, following Z.’s initial police interview on April 30, 2021, Z. proactively had started to tell Ms Z. about that interview; i.e., with Z. indicating that she had told the police “everything”, including telling the police “about her vagina” and “about her bum”.

b. Ms Z. said that Z. had started kissing her mother’s face and arm and was doing so with her mouth open and tongue out, which in turn had prompted Ms Z. to ask Z. what she was doing. In response, Z. was alleged to have said “I’m kissing you”, which in turn prompted Ms Z. to say, “We don’t kiss like that”. Z. was then alleged to have said “That’s how my dad kisses me.” When Ms Z. thereafter allegedly asked Z. for clarification as to whether her father did that on her arm, Z. was said to have answered: “Yes, all over my body, even my vagina.”

c. Finally, (in relation to the further disclosure Z. was alleged to have made to Ms Z. after her first police interview), Ms Z. described how Z. was said to have indicated that her father had taken pictures of her vagina and bum – which admittedly was the first time Z. had provided such an indication. In that regard, Ms Z. acknowledged in cross-examination that Z. did not proactively volunteer that information; i.e., that Z.’s further allegation in that regard was made in response to Ms Z. bringing up the topic of Mr B. taking pictures of Z. In particular, Ms Z. said she had done that in response to a request by D.C. Federman that Ms Z. raise the subject “gently”, as a follow up to something Z. had said to the police – although portions of the transcript of Ms Z.’s interview on May 5, 2021, which she confirmed in cross-examination to be accurate, suggest that it actually was a comment made by Ms Z. about Mr B. possibly having an interest in sexual photos that had prompted D.C. Federman to ask Ms Z. to let him know if Z. independently brought up anything about photographs. In any event, in her interview with D.C. Federman on May 5, 2021, and again at trial, Ms Z. acknowledged having said to Z., the day after her first police interview: “I remember you told me that daddy’s taking a lot of pictures of you, and he’s creating a picture book”, as well as “I know you told me about taking pictures at the bowling alley when you went there,” and “Can you tell me more about it?” In response, Z. is alleged to have said “Oh yeah, he also took pictures of my vagina”. Moreover, when Ms Z. then asked Z. what her father had used in that regard, Z. was said to have answered: “A big camera, the one that he puts around his neck”.

c. In relation to other matters addressed by Ms Z. in the course of her evidence, not addressed elsewhere in these reasons, and which I note in no particular order:

1. Ms Z. fairly acknowledged that both she and Mr B. made efforts to ensure that Z. washed her privates with water rather than paper after toileting, (as Z. had suffered from prolonged urinary tract infections when she was younger), and that Z. had told Ms Z. about a time when Mr B. had been washing her in that fashion when his fingernails had hurt her. Such evidence frankly made me question whether such memories were the source of Z.’s indication to D.C. Federman that her father’s fingernails had caused her pain during such touching of her vagina; i.e., as opposed to inappropriate touching done with more nefarious intent.

2. Although she took issue with the precise wording of some of the content of her family law application described above, Ms Z. confirmed that she had reviewed and signed the document before it was issued and served, and that the content set out therein generally was true when the application was filed in January of 2021. Without limiting the generality of the foregoing, she confirmed and expanded upon that information, in response to questions from defence counsel, by indicating:

a. that her family had a property management business in Italy, (in respect of which she already was an owner, and to which she had been invited to return), that would provide her with immediate employment if she was permitted to relocate to Italy with Z.;

b. that her mother had offered to permit Ms Z. and her children to live in the home of Ms Z.’s mother rent free if they relocated to Italy;

c. that such a relocation would allow her and her children to start a new life without being dependent on Mr B. for financial support;

d. that her daughter L. already had relocated to Italy without any desire or intention to return to Canada, and was calling her mother frequently asking for her mother and siblings to move to Italy as well;

e. that her son G. also wanted to relocate from Canada to Italy;

f. that she wanted to relocate with G. and Z. to live in Italy, as she felt very lonely and unable to manage as a single mother in Canada, without employment; and

g. that inability to relocate with Z. to Italy presented her with an inability to live with all of her children at once – i.e., as she could not and would not ever leave Z. behind in Canada, (such that she reluctantly but effectively would be forced to continuing living with Z. and G. in Canada), but therefore also could not join her daughter L. in Italy.

3. Ms Z. confirmed that, in October of 2020, at the time of her proposal to relocate with Z. to Italy where the two of them would live with Ms Z.’s other children, and Mr B.’s rejection of that proposal, she had a general awareness that if someone was charged with a criminal offence, a bail process would exist whereby the person likely would be released on bail conditions that would include restrictions on child access. She also confirmed that, at the time, she had no grounds or reason to seek any revocation of Mr B.’s rights of access to Z. However, Ms Z. also firmly denied that she was giving any thought to such matters. To the contrary, Ms Z. emphasized, she had no desire to terminate visits between Z. and her father, as she wanted that relationship to continue.

34Again, the evidence I have expressly mentioned so far is only some of that which I received, all of which I nevertheless have considered, and further specifics of which will be the subject of further comments regarding assessment of witness credibility and reliability.

35With all of the trial evidence in mind, I turn next to my general comments in that regard, (i.e., about witness credibility and reliability), before turning to my general analysis as to whether Mr B. should be found guilty or not guilty in relation to the offence with which he has been charged.

GENERAL ASSESSMENT OF WITNESS CREDIBILITY AND RELIABILITY

36As for the young complainant, Z.:

a. In my view, there were numerous considerations that made Z. a superficially impressive witness, and which arguably militated in favour of finding her to be credible and reliable. Without limiting the generality of the foregoing:

1. It was abundantly clear during the course of her video-recorded police interview conducted on April 30, 2021, and during her testimony at trial, that Z. is an extraordinarily intelligent and precocious child, with wide-ranging interests and a superior ability to communicate; abilities which she herself expressly recognizes, and of which she is understandably proud. In addition to numerous other described talents and achievements, she is fully bilingual, (in English and Italian), has a vocabulary and syntax quite impressive for her age, (and which equaled or surpassed that of many adult witnesses I have encountered), clearly was capable of maintaining sustained focus during prolonged watching of a video-recording and extended questioning, and generally answered questions during her video-recorded police interview and trial testimony without hesitation, in an immediate and responsive way.

2. Z.’s substantive answers often also suggested a maturity beyond her years; e.g., insofar as they not only provided indications of what was said to have happened or not happened on certain occasions, but also were accompanied by reflections on matters such as her thoughts on what may have motivated certain actions by others, why she had been obliged to endure certain activities (both innocuous and objectionable) against her will, and why she no longer felt able to express certain emotions. In relation to other emotions, however, (such as dislike, hatred or even disgust for certain activities or foods), she did not hesitate to make her feelings known in quite definite terms; e.g., without any indication whatsoever of being shy or reticent. In short, Z. generally presents as a very confident child, and as someone very confident in the accuracy of what she is saying.

3. The accounts Z. provided also were often replete with detail; possibly in response to D.C. Federman’s request, (at least in relation to her video-recorded evidence), that she provide as much detail as possible. When Z. described various events that were said to have taken place, she frequently did so in a vivid way; e.g., often supplying details, without hesitation, in relation to such matters as locations, very specific dates, weather conditions, persons in attendance, items of clothing that were worn, and words that were said or not said. Such suggestions of vivid memory and recall characterized not only Z.’s evidence in relation to central matters in dispute in these proceedings, (i.e., the alleged incidents wherein she was said to have been touched inappropriately by her father), but also in relation to more collateral and peripheral matters, ranging from the visitation schedule she had with her father following the separation of her parents to a complete listing of the various birthday presents she had received - and from whom - at a birthday celebration for her that took place several years ago, prior to her parents’ separation.

b. In my view, there nevertheless also were numerous reasons to be concerned about Z.’s credibility and reliability. Without limiting the generality of the foregoing:

1. Z.’s evidence, considered as a whole, had some marked internal inconsistencies. In that regard:

a. At trial, Z. initially confirmed, (in cross-examination on her first day of testimony), that there definitely had never been any instances of her father touching her private area before her parents separated in July of 2020. However, during her continued cross-examination the following day, Z. was asked about the indication she provided, during her second police interview on May 5, 2021, that her father inappropriately had touched her privates back in June of 2019, (i.e., more than 13 months prior to her parents’ separation), and Z. inconsistently was adamant that such inappropriate touching had occurred on that earlier occasion, when her mother had been in Italy. She refused to acknowledge that she might be mistaken in that regard. However, Z. had no explanation for that obvious inconsistency, apart from agreeing that she was now “remembering differently” and may have forgotten the June 2019 incident the day before.

b. She indicated at one point that Mr B.’s touching of her vagina usually would last for just three seconds, but subsequently indicated that it would last for 20 or 30 seconds; time intervals she described/confirmed by counting aloud. While I normally would have been disinclined to attribute much significance to such varying time estimates, especially from a child witness, Z. herself was very specific and deliberate about such time estimates; e.g., repeatedly counting them out to emphasize the specific durations she was describing.

c. In speaking with D.C. Federman, Z. initially indicated that she would use the pieces of paper with dates, provided by her father, to try to remember those dates in case if she ever went to talk with someone about what her father was doing. A short time later, in response to further questioning by D.C. Federman, she denied feeling that she needed to remember those dates.

d. As noted above, Z. initially indicated, when describing the alleged incident of her father touching her inappropriately in his car, that the touching had occurred as she was getting her hat, before then indicating that it occurred as she was going to play with a rubber object in the back of the vehicle. She also initially indicated that the touching had involved her father using his hand to touch her “in-between” but not in her pants, before then indicating that her father had put his hand inside her pants and underpants.

e. As noted above, Z. indicated that, at the time of the alleged incident of sexual touching that occurred the Sunday before Hanukkah in 2020, (which would place the incident on December 6, 2020), the “nonsense” or “business” of her father touching her inappropriately had been going on for one month. However, that indication is clearly at odds with her earlier specific indication that the inappropriate touching at started, for the first time, at the end of September, 2020. Once again, while I normally would have been disinclined to attribute much significance to such varying time estimates, especially from a child witness, Z. herself was very specific and deliberate about such timing indications, clearly indicating that she was very confident about her evidence in that regard. When there are clear reasons for doubting the accuracy of such confidently delivered assertions, it makes me question what other assertions Z. confidently may have made which nevertheless were inaccurate or otherwise untrue.

f. As noted above, Z.’s detailed description of who was in the park with her and her father, at the time of the alleged incident of inappropriate touching when she was stepping up to the monkey bars just two days before the video-recorded interview on April 30, 2021, changed significantly during the course of that interview. Again, in her initial version of the incident, five other individuals were present, (a father, a mother, an “older sister” who was approximately 30 years old, and “two kids” whom she estimated to be eight and five years old), but her later version of the incident, told within the same interview, increased the number of individuals from five to seven and changed their description significantly to a father, a mother, a grandpa or grandma, (later more specifically identified as a grandma), and four children with ages of 11 or 10, eight, five and three respectively. As also noted above, Z. initially indicated with great confidence and certainty that “everyone” present in the park, at the time of the alleged incident of her father lifting her dress and touching her inappropriately, definitely had seen what her father had done and was reacting with shock. A short time later, she then said they “might have been missing it”. Still later in the interview, she was quite sure that “everyone saw it” and described their individual shocked reactions in much greater detail, so as to convey vivid memories in that regard. I find those significant variations and deviations in Z.’s evidence of that alleged incident in the park to be very troubling. Without limiting the generality of the foregoing:

i. The situation is not one of a child witness having a clear recorded recollection of an alleged event shortly after it happened, and then exhibiting difficulties remembering the same event a good deal later.

ii. The situation instead is one involving a child confidently expressing supposed vivid memories of an event, within the very same recorded interview, that are inconsistent and contradictory in significant ways, and which clearly could not both be true.

iii. The obvious concerns about credibility and reliability are augmented by the fact that Z. was professing to be recalling an incident that was said to have happened just two days earlier, when her memories of the incident arguably should have been relatively clear. Once again, however, the concern was not that Z. was having trouble remembering certain details and struggling to remember whether one set of facts had existed rather than another. She instead presented her two significantly inconsistent versions of the same event confidently and without hesitation.

iv. In the result, I was left with a definite impression that I was confronted with a child witness who, although presenting in a very compelling manner, nevertheless was simply imagining different scenarios that did not occur and falsely presenting them as supposed truths. As noted below, my impression in that regard was reinforced by the implausibility of the scenario Z. was describing, which I will address in further detail below.

g. In her testimony at trial, Z. adopted the video-recorded statements made during her first police interview on April 30, 2021, which included her indications that she had told D.C. Federman about all the alleged incidents of inappropriate touching by her father. As noted below, Z. nevertheless purported to recall a number of additional such incidents at trial. At trial, she also indicated that some of the alleged inappropriate touching she described in her first police interview actually did not happen.

2. Z.’s account of events also was not consistent over time, insofar as it notably changed over time in significant ways. In that regard:

a. There is a troubling reality that Z.’s indications of the total number of alleged incidents of inappropriate touching by her father increased, and increased significantly, as she was providing her successive accounts of misconduct over time. In that regard:

i. As indicated earlier in these reasons, during her initial police interview on April 30, 2021, Z. could recall only six specific incidents of alleged inappropriate touching by her father, which were said to have taken place between late September of 2020 and April 28, 2021. At the time, Z. said there might have been two further incidents of such touching on specified dates in January of 2021 and February of 2021, but she could not recall what they were. In short, at the time of her initial police interview, Z. was indicating that there had been a maximum of eight possible incidents of inappropriate touching by her father. She expressly confirmed to D.C. Federman those were “all the times” on which such inappropriate touching had occurred, and that she had successfully “blocked” all further attempts made by her father in that regard.

ii. By the time of her second police interview on May 5, 2021, approximately five days later, Z. was professing to recall a few more such incidents, in addition to the eight possibilities originally identified during her first police interview.

iii. By the time of the preliminary hearing on July 21, 2022, more than 14 months later, Z. was indicating that she recalled her father touching her inappropriately “about 50-60 times”, with her father allegedly having put his hand inside her vagina on approximately half those occasions; i.e., some 25-30 times.

iv. At trial, Z. sought to explain the numerical discrepancies by saying that her memory was “getting better as time went on”. In my view, that is not a sensible explanation, as the reverse is more likely to have been true. In particular, as the Supreme Court of Canada has emphasized, (and as noted earlier in these reasons), common experience confirms that a child’s memory of events is likely to be much better shortly after those events occur, which is one of the fundamental rationales underlying section 715.1 of the Criminal Code.

b. In numerous instances, Z.’s initial answers at trial tended to downplay her preference for life in Italy over life in Canada, and earlier discussions she had with her mother about their move there before it happened, until she was taken to her earlier answers to such questions provided at the preliminary hearing.

c. Although Z. had indicated in earlier statements to her mother and to the police that her father kissed her with his tongue out and had kissed her on the vagina, she indicated at trial that her father would sometimes kiss her on the head but usually on the lips, and that his kisses on her lips would only be “like a quick peck”.

d. At the preliminary hearing, Z. described another incident of alleged sexual touching by her father that she had not mentioned during her video-recorded police interview on April 30, 2021; an incident she described as the second time her father had touched her inappropriately, after the first alleged incident in late September of 2020 involving the basketball. In particular, Z. claimed at the preliminary hearing that there had been an incident of such inappropriate touching in October of 2020; an incident that was said to have taken took place in her father’s car while it was parked in front of her mother’s house, when Z. claimed to have stood up to scratch her leg before her father then touched her bum for five seconds. Z. also claimed, at the preliminary hearing and at trial, to have told D.C. Federman about that incident during her police interview on April 30, 2021, although there was no indication of that in the video recording. When confronted with that reality at the preliminary hearing and again at trial, Z. responded on both occasions with indications that she recalled telling D.C. Federman about that incident on April 30, 2021, after the video recording had ended; i.e., after D.C. Federman had told her the video recorder had been turned off. She also claimed to remember seeing D.C. Federman writing notes as she told him about that additional incident, and that she could still see him doing so “in her mind” as she was testifying at trial. As discussed in more detail below, such assertions were simply untrue, (and the parties agreed they were untrue), despite Z.’s assertions to the contrary at trial. When confronted with such realities, Z. initially claimed to have been confused, but then conceded that she actually may have been “remembering” something that “didn’t actually happen”.

e. In contrast to the account Z. provided during her video-recorded police interview on April 30, 2021, (wherein Z. indicated that the most recent incident of inappropriate touching by her father had occurred two days before the interview, in the park across the street from her mother’s house), Z. also testified at the preliminary hearing that “the very last time” her father had touched her privates, prior to her initial police interview on April 30, 2021, had occurred approximately two weeks before that interview, in the playroom at her father’s house, during a daytime visit there. In that regard, Z. initially claimed that her father had touched “only [her] bum” on that occasion, but then added that he had touched her vagina as well, without any digital penetration. She claimed that her father had engaged in that touching by putting his hands underneath her clothes. She also claimed to have told her mother about that incident of inappropriate touching, (i.e., of her father touching her vagina and bum underneath her clothing), “that very same night”, with her mother supposedly responding by saying: “That wasn’t right”, and “He shouldn’t do that.” (As noted elsewhere in these reasons, Ms Z. denies that such disclosure ever happened.) At trial, Z. initially claimed to have told D.C. Federman about the incident during her police interview on April 30, 2021, but was then confronted with the reality that there demonstrably was no mention of that in the relevant video recording. When confronted with the same reality at the preliminary hearing, Z. claimed to have described the incident in question to D.C. Federman during her second police interview on May 5, 2021. When confronted with the reality that the video recording of that second police interview also contained no mention of the alleged incident, Z. then claimed to have described the incident to D.C. Federman on that occasion prior to his turning the video-recorder on to document her second police interview. However, as noted and discussed in more detail below, that too was untrue, and the parties have agreed it was untrue. At trial, Z. attempted to address her noted succession of inaccurate and untrue statements about such matters by reverting to insistence she had told D.C. Federman about it during her first police interview, (which was still inaccurate), before indicating that she could not remember whether what she had said earlier was the truth and adding later that she “probably was confused”.

f. At the preliminary hearing, Z. also purported to remember another incident of inappropriate sexual touching that was not mentioned in her video-recorded police interview on April 30, 2021, when she claimed to have disclosed all such incidents. In that regard:

i. At the preliminary hearing, Z. claimed that the incident had occurred sometime in or after March of 2021 in the park across the street from her house, when her father had “put his finger into her bum” – although she later clarified that she had intended, by those words, to indicate only that her father had put his finger in the centre area of her bum, over top of her clothes. She recalled that there had been only one other person in the park when she and her father arrived there; i.e., an 11-year-old boy who had been playing basketball, who nevertheless was said to have left the park before the inappropriate touching occurred. At the preliminary hearing, Z. claimed not to remember what she was wearing at the time, (e.g., pants, a dress or a skirt), or what she had been doing, (i.e., in terms of playing on equipment or running around), when the alleged inappropriate touching was said to have occurred. She could only recall that her father had put his finger “in her bum”, (again, later clarified to mean in the centre area of her bum over top of her clothes), for a length of time she also could not remember. She nevertheless did remember that she had never told her mother about that alleged incident.

ii. At trial, Z. nevertheless confidently indicated, before being taken to her testimony about the alleged incident at the preliminary hearing, more detailed memories about the alleged incident, which in some respects also were blatantly contradictory to what she had said at the preliminary hearing. For example, at trial, she could now recall what she had been wearing; i.e., a dress and underpants. She could now recall what she had been doing when the alleged inappropriate touching occurred, and how it occurred; i.e., that she had been climbing the stairs of the slide in the park when her father lifted up her dress and put his finger “into her bum” – a phrase Z. similarly clarified as one intended to refer to her father touching on top of her bum in its central area, without actually putting his finger inside her bum. She also claimed to have told her mother about the incident in question approximately two weeks before the time of her meeting with D.C. Federman; i.e., a time well before her testimony at the preliminary hearing.

iii. When confronted with the contradictory nature of her testimony at the preliminary hearing and her testimony at trial, in relation to disclosure of the alleged incident to her mother, Z. said she had probably “just got that wrong at the preliminary hearing”.

iv. When asked why she had not disclosed the alleged additional incident to D.C. Federman at the time of her police interviews, Z. claimed that she “probably didn’t remember”, even though she had claimed to have been discussing the incident with her mother just two weeks before those interviews began.

v. Even making allowances for Z. as a child witness, I did not find such explanations convincing. The simple fact of the matter, which Z. herself refused to acknowledge during cross-examination, was that her professed memories of the incident were supposedly improving over time, which in my view is simply unrealistic for reasons outlined earlier.

g. When Z. was asked at trial to confirm, after her answers relating to the further alleged incident I just described, that her father actually had never put his finger inside her bum, despite her earlier words suggesting the contrary, Z. responded by indicating that there actually had been such an incident, which she had never mentioned or disclosed earlier – despite having indicated at the preliminary hearing, (when asked whether her father had ever put his finger in her bum), that there had been only one such incident, and that had been the alleged additional incident in the park which I have just addressed, and which Z. confirmed to have actually not involved such misconduct. However, when asked for details of the further incident she now was alleging, of her father actually putting his finger inside her bum, Z. initially indicated that she did not remember any details – apart from the fact that it was not the incident at the park which she had been describing. A short time later, she nevertheless claimed that the incident had taken place at her father’s house when she was in the washroom, and about to take off her pants, when her father had done that to her; i.e., inserted his finger into her bum. When asked if that had hurt, Z. indicated that she could not remember. Frankly, my impression of Z., at that point in her trial testimony, was that she was simply making things up on the spot.

h. In relation to the alleged incident of sexual touching that was said to have taken place at the park across the street from her mother’s house, as Z. was stepping up to the monkey bars, Z. indicated during her initial video-recorded interview with D.C. Federman that the incident had happened two days before the interview; i.e., on Wednesday, April 28, 2021. At the preliminary hearing, Z. was confident that it had not occurred two days before that interview, but two weeks earlier. As for what was said to have happened during that park incident, I already have noted that Z. appeared to give inconsistent accounts of the incident even within the same video-recorded statement she provided to the police on April 30, 2021. By the time of the preliminary hearing, Z.’s account of the incident had changed again. In that regard, I attach less significance to the fact that Z. admittedly could not remember certain details at the preliminary hearing, which took place a considerable time after her initial police interview; a lapse of memory which seems reasonable with the passage of time, especially for a child witness. (For similar reasons, I attach less significance to Z.’s general inability to recall, at the time of the preliminary hearing, details of the bouncy ball incident of October 7, 2021, which she had described to D.C. Federman during her initial police interview.) However, I attach greater significance, in terms of my assessment of Z.’s credibility and reliability, to the fact that her account of the park and monkey bars incident provided at the preliminary hearing included professed very definite memories of the incident, (which she claimed to see clearly in her mind at the time of the preliminary hearing), that included further deviations from what she had described earlier during her first police interview. For example, at the preliminary hearing, Z. said she could recall, in terms of other people in the park at the time, that there had been two adults and “two kids” – although she later revised that indication to indicate there had been three kids present for a total of five people, with the adults talking to each other and the kids, (whom Z. initially indicated to be ages 7, 4 and 2, but later said were 12, 8 and 4), just playing. She also claimed that those other people had been walking towards the park’s exit when the touching had occurred, such that she did not think they had seen her father touch her inappropriately; i.e., by touching her bum under her outer clothing but over her underwear. When essentially confronted at the preliminary hearing with her prior inconsistent indications of who had been at the park at the time of the alleged incident in the park, at the park’s monkey bars, Z. denied the accuracy of the facts described in her earlier accounts and said she must have been making a mistake at the time.

i. As noted earlier, Z. indicated to D.C. Federman, during her initial video-recorded police interview on April 30, 2021, that she could remember the specific dates of the various alleged incidents she was describing to D.C. Federman because her father, on the dates in question, had provided her with pieces of paper with the relevant dates written on them. At the time, she was very confident and definite about that. However, by the time of the preliminary hearing, she was equally confident and definite about the fact that her father actually had never given her any such pieces of paper, and that she was “absolutely certain” and “100 percent certain” about that. In that regard, Z. also indicated that had a pretty good memory, and that if her father had been doing that, she would remember that. When confronted at trial with that glaring inconsistency between her statements made during her initial police interview and her statements made at the preliminary hearing, Z. initially had no explanation, simply indicating that she did not know if she had been telling the truth at the preliminary hearing. She then claimed that the relevant questions had been confusing, before admitting, during further cross-examination in that regard, that there actually was nothing about the relevant questions that were confusing, and that she simply did not know which of the completely inconsistent versions of events relating to her father possibly giving her such pieces of paper was true. In the end, she eventually acknowledged that she possibly had been “remembering something that turned out not to be real”.

j. In relation to the alleged incident of inappropriate touching that was said by Z. during her initial police interview to have occurred in Mr B.’s car on October 14, 2020, Z. indicated at the preliminary hearing that she actually was sure that her father did not touch her inappropriately that day. Moreover, at trial, she confirmed that she had been telling the truth in that regard at the preliminary hearing; i.e., effectively indicating that the relevant “car incident” of inappropriate touching she had described to D.C. Federman simply had not occurred.

3. In my view, aspects of Z.’s accounts also seemed inherently implausible, and/or clearly were contradicted by other evidence I received. In that regard:

a. I do not believe or accept for a moment that Mr B. took efforts to specifically document the dates on which he allegedly engaged in inappropriate sexual touching of his daughter by usually providing Z., on each such occasion, with pieces of paper with the relevant dates written on them. In my view, Z.’s assertions in that regard were clearly an explanation that was imagined as a reason to bolster acceptance of her very specific assertions in that regard.

b. As I just noted a short time ago, Z. herself appeared to confirm, in her evidence at trial, that the alleged incident of inappropriate touching in Mr B.’s car, said by Z. during her initial police interview to have taken place on October 14, 2020, simply did not happen. In any event, I did not believe Z.’s account that the described inappropriate touching taking place in her father’s vehicle on that day came to an end because her father was reaching for his keys to drive Z. back to his house, in turn causing her to run from the car back into her mother’s house. In particular, having regard to the other evidence I received from Ms Z. about why and how Z.’s visits to her father’s home had been terminated by party agreement, and the arrangements the parties had made to have Z. visit with her father by Mr B. coming to Ms Z.’s home in Waterloo to play in the park out front there on warmer days, or remain in Mr B.’s vehicle on colder ones, I think it entirely implausible that Mr B. expressly told Z., (as she alleged), that he had intended to unilaterally drive away with Z. back to his residence. In my view, such conduct, and such a deviation from the parties’ agreed arrangements regarding visitations between Z. and her father, almost certainly would have prompted immediate consternation, concern, and inquiries the moment Ms Z. would have seen Mr B. and Z. drive away from the front of Ms Z.’s home. I think it highly unlikely, against the backdrop of civil discussion and agreement regarding visitation arrangements, that Mr B. would have contemplated or intended such unilateral deviation from those agreed arrangements. I also find it very difficult to believe Z.’s explanation that, on the occasion in question, she failed to tell her mother about the inappropriate touching that had just happened in her father’s car, when she re-entered her mother’s home, because she simply “forgot” to do so. Such an indication is completely at odds with Z.’s professed assertions of powerful and precise memories of everything that happened between her and her father, (which she herself claims “stick out” clearly in her mind), and her indication that she had started telling her mother of her father’s inappropriate touching just two weeks earlier; i.e., on October 1, 2020.

c. I also think it entirely unbelievable that Z. would have told her mother about her father’s alleged inappropriate touching back on October 1, 2020, and/or two weeks before her first police interview on April 30, 2021, as Z. claimed to have done. Such earlier disclosures were firmly denied by Ms Z. Moreover, it was abundantly clear that Ms Z. loves and greatly cares for her daughter, and I find it unimaginable that Ms Z. would have ignored and/or not acted immediately upon the earlier receipt of such information to bring Z.’s allegations to the attention of others, as Ms Z. did at the end of April 2021, especially in the context of the ongoing family law litigation, with Ms Z. understandably focused on how she might be permitted to relocate to Italy with Z. despite Mr B.’s objections.

d. In my view, there also were implausible aspects to Z.’s account of what was said to have happened on March 1, 2021. For example, the suggestion that she was wearing a dress rather than pants on the day in question, owing to it being a “really hot day”, seems unlikely having regard to the likely weather conditions at the beginning of March. (Again, while I normally would be disinclined to attach much significance to potential date discrepancies or inaccuracies in the evidence of a child witness, it is the contrast between Z.’s confidence in stating particular dates and their probable inaccuracy that gives me pause in assessing her general credibility and reliability, given the similar confidence she displayed in relation to her other evidence.) Beyond that concern relating to her account of what was supposed to have happened on March 1, 2021, I also think it implausible that Mr B. would have gone out of his way to lift Z.’s dress and touch her vagina just as she was exiting his residence to join her mother, who was waiting immediately outside the residence in her vehicle. Perpetrators of sexual interference rarely seem inclined to engage in such behaviour when the possibility if not probability of immediate reporting and detection is high.

e. For similar but augmented reasons, I find Z.’s accounts of her father’s alleged very public and visible touching of her vagina in the park in front of her house to be completely implausible. Once again, I think it highly unlikely that a perpetrator of sexual interference would engage in such deliberate, overt, and obvious misconduct in the presence of other watching adults and children, in the manner Z. described. I think it even more unlikely that at least three adult witnesses, all of whom apparently were providers of childcare in their own right, clearly observing such misconduct and reacting with the sort of very visible shock described by Z., would have said and done absolutely nothing in response to such an incident – especially if their own children or grandchildren were expressly drawing attention to the misconduct. In my view, the much more likely explanation for such a failure is that the incident described by Z. simply never happened; i.e., that she was imagining such a scenario in a vivid and detailed way, (albeit inconsistently), and falsely presenting her imagined versions of the scenario as matters of fact.

4. There also were things Z. specifically alleged in the course of her testimony which were demonstrably and/or admittedly inaccurate or untrue. In that regard:

a. Z. confidently indicated that the second incident of alleged inappropriate touching had occurred on October 7, 2020, during a weekend visit with her father. Moreover, she indicated her belief that the particular day of the weekend on which the touching had occurred was a Sunday. I believe I can take judicial notice of the fact that October 7, 2020, (the very particular date specified by Z.), actually fell on a Wednesday. Again, I normally would not attribute much significance to such timing inaccuracies of a child witness, were it not for the extraordinary confidence with which Z. unusually, in my experience, insisted on attributing very specific dates to Mr B.’s alleged misconduct. Such realities gave me misgivings about what else Z. might have described very confidently but inaccurately.

b. When Z. was challenged during cross-examination at the preliminary hearing and at trial about advancing additional allegations of inappropriate touching by her father which she had not mentioned previously during either of her two recorded and transcribed police interviews, (despite confirming during those interviews that she had recounted all of her father’s alleged misconduct in that regard), Z. sought to explain and excuse such apparent omissions by indicating professed and definite memories of having mentioned those additional incidents before and after her police interviews, of having seen when D.C. Federman turned the recording devices on and off in that regard, and having seen D.C. Federman make notes in relation to such additional allegations. However, as effectively confirmed by the facts agreed upon by the parties and documented in what was made Exhibit 3 during the trial, none of those allegations of fact and professed memories of Z. were true. In particular, as noted above, the parties expressly have agreed that all incidents and details of sexual touching made to D.C. Federman by Z. were captured in the videotaped interviews of Z. conducted by D.C. Federman on April 30 and May 5, 2021, and no additional information regarding sexual touching was made to D.C. Federman by Z. before or after the filming of those videotaped interviews. The only possible conclusions are that Z. was deliberately telling lies in that regard in an effort to bolster her credibility and reliability by overcoming an expressly identified concern regarding her testimony, (i.e., suggested inconsistency in her allegations over time), or that Z. vividly imagined such non-events and subsequently came to have a genuine belief that they actually had happened. Either alternative obviously gives rise to significant concern in relation to a child witness whose credibility and reliability lie at the heart of the Crown’s case alleging that Mr B. committed the offence of sexual interference. Quite simply, if Z., while providing testimony, demonstrably was telling deliberate lies, or conveying sincerely believed falsehoods about such matters, how can one not have a reasonable doubt that she may have been doing the same thing in relation to other matters addressed by her testimony – including her allegations of supposed inappropriate touching by Mr B.?

5. In my view, there also are clear indications, highlighted through cross-examination, of Z. having a motive to fabricate allegations of inappropriate touching on the part of her father, Mr B. In that regard:

a. I am mindful of general principles regarding evidence of a complainant’s motive to fabricate allegations and evidence, or the lack thereof, emphasized repeatedly by our Court of Appeal in decisions such as R. v. L.L., 2009 ONCA 413, at paragraphs 44 and 53, and R. v. Bartholomew, 2019 ONCA 377, [2019] O.J. No. 2371 (C.A.), at paragraphs 20-23. Without limiting the generality of the foregoing:

i. From a prosecutor’s point of view, a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth.

ii. Conversely, from the defence perspective, proof that the complainant has an ulterior motive, or a motive to fabricate his or her allegations and evidence, may provide a compelling alternative to truth of the complainant’s allegations.

iii. However, an accused is not required to prove anything, and accordingly has no obligation to prove that the complainant has an ulterior motive or a motive to fabricate his or her allegations and evidence. At all times, the onus remains on the Crown to prove guilt beyond a reasonable doubt.

iv. Moreover, while evidence of a complainant having a motive to fabricate allegations and evidence may be lacking, it is important to recognize and remember that the absence of evidence of motive to fabricate is not the same thing as absence of motive to fabricate. In other words, there is a significant difference between absence of proved motive and proved absence of motive. In particular:

1. Simply because there is no apparent reason for a witness to lie, it does not logically follow that the witness must be telling the truth. Put another way, the fact that a complainant has no apparent motive to fabricate does not necessarily mean that the complainant has no motive to fabricate.

2. The reality is that a person’s motives can sometimes be hidden. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all. It accordingly is dangerous and impermissible to move from a complainant’s apparent lack of motive to fabricate to a conclusion that the complainant must be telling the truth.

v. Although absence of an apparent motive to fabricate is a proper factor to consider in assessing the credibility of a complainant, it is but one of many factors to be considered.

b. In this particular case, the presented evidence relating to Z. having a motive to fabricate included, in my view, the following indications:

i. In her video-recorded police interview conducted on April 30, 2021, Z. indicated that she hates her father Mr B., while noting that was not always the case, and that she hates him only since he touched her vagina.

ii. However, in the same video-recorded police interview, and at trial, Z. proactively indicated and/or confirmed that there actually were many things about her father Mr B. that she strongly disliked, prior to the separation of her parents, and/or independently of the alleged acts of inappropriate touching said to have been committed by Mr B. For example:

1. She indicated that, although there occasionally were some fun things she did with her father prior to her parents’ separation, such as going to the park, she did not really have a good time doing such things with him. She said her father would never take her for drives, or take her to the beach or swimming pool, (things she enjoyed), because her father did not know how to swim and did not like going into the water. More generally, she said she thought her father was “kind of boring to be around”.

2. She repeatedly indicated her resentment of what she perceived as Mr B.’s repeated failure to listen to her and to respect her indicated wishes and preferences; e.g., noting his insistence on doing things “his way”, on giving and forcing her to consume specified types of candy, chocolate and juice she dislikes, expressly did not want and/or to which she was allergic, his pulling on and taking off her braids in a painful way, and his not permitting her to play outside when she wanted to do so.

3. She emphasized her hatred of a birthday celebration her father had organized for her, insofar as it also was attended by Mr B.’s older children; i.e., Z.’s stepsiblings.

4. She did not like the way in which Mr B. sometimes held her upside down on monkey bars and got sand in her eyes at the park.

5. She did not like her father telling her that she could not have another therapist, (despite her feeling that the one she had was not listening to her), and his saying negative things about what her therapist had to say.

6. More generally, Z. confirmed and adopted statements she had made at the preliminary hearing confirming that, before her parents’ separation, she did not like her father “at all”; i.e., that she had tried to seem like she liked him, and to be happy around him, but she “actually wasn’t”, as she just “didn’t like him”.

7. At trial, Z. also repeated and confirmed the truth of her statement at the preliminary hearing that there was no time after her parents’ separation when she and her father would have fun together.

8. For the sake of completeness, I will add that Z. also indicated that she did not like it when her father tickled her, kissed her on the lips or insisted on accompanying her into the washroom to ensure that she wiped herself in relation to toileting and to sometimes help clean Z. in that regard – although it effectively was made clear during the trial and counsel submissions, (in response to my questions seeking clarification in that regard), that Crown counsel was not relying on any such touching in support of the charge against Mr B. In my view, that was an entirely reasonable approach in the circumstances, particularly having regard to the testimony of Ms Z., mentioned earlier, confirming that Z. suffered from urinary tract infections when she was younger, such that both she and Mr B. would take care to ensure that Z. washed her privates with water instead of paper after toileting.

9. I think it particularly noteworthy that, according to the uncontradicted testimony of Ms Z., Z. already was indicating at the end of her first and only post-separation overnight visit with her father in August of 2020 that she did not want to see her father anymore. By her own indications, Z. accordingly held that sentiment before the onset of any alleged inappropriate touching by her father, which started only at the end of September of 2020, according to Z. I find that reality of timing inherently troubling, in the present context, as I think an intelligent, creative, and obviously strong-willed child such as Z. undoubtedly would have been thinking of ways in which her desired end to unwanted visitations with her father might be brought about.

iii. In the course of her testimony, Ms Z. confirmed that Mr B. was working as a contractor, with his own business, and that such employment, (despite occasional periods of inactivity that might last for months), frequently was required to work every day on a full time basis; a reality that obviously would have reduced the time he had available to interact with his daughter Z., although Ms Z. confirmed that Mr B. would still spend time with Z. when not at work.

iv. Ms Z. also effectively confirmed that there were other reasons, in addition to his work commitments, why Mr B. definitely struggled to form a meaningful bond with Z., and why Z. may have developed an animus towards him. For example:

1. Mr B. was considerably older than Ms Z., (something which Z. also indicated and confirmed), and Mr B. therefore had greater difficulty finding common interests with his very young daughter.

2. Mr B. also spoke little or no Italian, (something which Z. also confirmed about her father), and Mr B. therefore was unable to participate in conversations between Ms Z. and Z. when they routinely spoke in Italian while at home.

3. It was Ms Z.’s understanding that Mr B.’s parents were Holocaust survivors who instilled, in Mr B., a sense of anxiety as well as an inability to discuss and deal with emotions directly and openly, in turn leading to Mr B. exhibiting something of a detachment from his emotions. That in turn was said to have caused Mr B. difficulties in understanding Z. and her emotions; e.g., failing to understand why she was crying, and becoming very annoyed when she did so. It also was said to have instilled certain anxieties in Z.; e.g., insofar as Mr B.’s intense dislike of cats, (including alleged screaming whenever the family’s cat came near him), caused Z. to have a terrible fear of cats as well.

4. It also was Ms Z.’s impression that Mr B.’s anxious nature had instilled a general desire on his part to exert control over situations; something that was reinforced by his time in the military when he was younger. That in turn would lead to difficulties in his interactions with Z.; i.e., when Mr B. would “make a plan” he wished to follow in relation to certain activity, and Z. then expressed a desire to do something else instead. According to Ms Z., such challenges frequently came to the fore during the post-separation visits between Z. and her father; e.g., with Z. frequently complaining that she was not permitted to play outside as she wanted during visits with her father and was forced instead to remain inside where there was nothing she wanted to do or did do with her father. Z. similarly would complain frequently that her father “didn’t listen to her”.

5. Z. admittedly was exposed to the pre-separation family conflict that occurred between Mr B. on the one hand, and her mother and brother G. on the other, with Z. being upset by Mr B.’s yelling in that regard.

v. In contrast to all of the aforesaid indications of a distant and/or problematic relationship between Z. and her father, separate and apart from the allegations of inappropriate touching, Z. repeatedly indicated, during her video-recorded police interview and at trial, that she has been and remains extremely close with her mother Ms Z., and that reality was confirmed by various aspects of the testimony I received from Ms Z. For example, among the evidence I received in that regard:

1. Z. told D.C Federman, during the video-recorded police interview on April 30, 2021, that she feels very safe and happy living with her mom. Such sentiments were echoed by Z.’s testimony, wherein she indicated that liked moving with her mother to Italy, where the two of them did a lot of fun things together like visits to the swimming pool and beach.

2. Z. nevertheless also confirmed at trial that, even prior to her parents’ separation, she spent much of her time with her stay-at-home mother, got along pretty well with her mother, and that her mother “was more fun to be around” than her father.

3. More generally, Z. also confirmed at trial that, in contrast to her stated negative feelings about and towards her father, her mother listens to her and takes her seriously, has discussions with Z. about what they will decide to do together and many other things, and plays with Z. Z. likes, trusts, and loves her mom a lot, likes spending time with her mother, sleeps with her mom every night, and wants her mother to be happy.

4. As for Ms Z.’s testimony in relation to such matters, she confirmed that she was never really employed in Canada; in particular, that she was never employed for any significant period of time from her arrival in Canada in 2007 to the time she left Canada and returned to Italy in May of 2022. Moreover, although Ms Z. embarked on university studies here in Canada to supplement the university education she already had received in Italy, she admittedly did not start doing so until September of 2019. On the whole, Ms Z. therefore acknowledged herself to be primarily a “stay-at-home mother”, who correspondingly was free and available to spend extended periods of time with Z. In that regard, Ms Z. indicated, and it was not disputed, that she was Z.’s primary caretaker during the entirety of the relationship between Mr B. and Ms Z., and that Z. spent the majority of her time with Ms Z.

5. Ms Z. confirmed that Z. was breast fed by Ms Z. until the age of four, and that Z. also has slept nightly with Ms Z. on an almost continuous basis for most of Z.’s life; i.e., sleeping in the same bed as Mr B. and Ms Z. prior to their separation, and with Ms Z. almost every night thereafter up to and including the time of trial.

6. More generally, Ms Z. acknowledged that it was fair to say that she and Z. were very close, and clearly have a very strong attachment to each other. She also acknowledged, (albeit with a marked degree of reluctance addressed in further detail below), that Z. has struggled with separation anxiety in relation to her mother, (i.e., a reluctance to be separated from her mother and/or have her mother leave her), since she was quite little. This manifested itself in various ways, including Z. not wanting to leave her mother’s car when being dropped off at school.

7. On the whole, Ms Z. acknowledged and confirmed that she got along better with Z. than her father did. Moreover, it was Ms Z. who admittedly frequently had to act as something of a mediator in the relationship between Z. and her father prior to Mr B. and Ms Z. separating from each other.

vi. While Z. testified that she “didn’t mind” living in Canada, and there admittedly are some things about Canada that she misses, it was also quite evident that she has a distinct preference for her Italian heritage and life in Italy. Without limiting the generality of the foregoing:

1. She prefers to speak Italian rather than English, as she finds Italian to be more expressive and capable of conveying more nuanced distinctions.

2. She enjoyed the visits she made to Italy prior to the separation of her parents, (at the ages of 1 and 5 respectively), although she also admittedly could not remember details of the first visit.

3. She enjoys various social aspects of living in Italy, including the ability to interact constantly with her maternal grandmother, their ability to visit the superior ice cream shops there on a daily basis, and her visits to beaches, swimming pools and fairs in Italy.

4. Although her initial answers about such matters prevaricated a bit in relation to such matters, Z. also confirmed, (after being taken to the evidence she provided at the preliminary hearing for this matter), her view that the weather and food are also nicer and better respectively in Italy than in Canada. She also feels safer there.

5. More generally, Z. expressly confirmed that she likes living in Italy better than she liked living in Canada. She also confirmed that she was “pretty excited to move there”, that she and her mother were both very happy to move to Italy, and that they had talked about doing so before their move – including discussion of the fun things they would do there, such as visits to the beach and swimming pool.

vii. As noted above, prior to Z. coming forward with allegations of serious inappropriate conduct by Mr B., Mr B. and Ms Z. were engaged in contentious family law proceedings and had reached a serious impasse in relation to Z.’s future; i.e., with Mr B. and his desire for meaningful and regular continued contact with his daughter through Z. remaining here in Canada effectively standing in the way of Z. relocating to a new life with her mother, her siblings L. and G., her grandmother and other members of her mother’s extended family, amidst the cultural attractions and scenic wonders of life in Italy to which Z. already had been exposed. In that regard:

1. Z. confirmed her awareness that, before the making of her allegations regarding her father and associated police involvement, she was aware that her father did not want her to move to Italy.

2. Z. also confirmed that she would tell her father that she really wanted to go to Italy, which in turn led to fights between her parents as her father did not want her to move to Italy but her mother did.

3. Z. also confirmed that her mother had said the two of them would move to Italy when they could.

c. As addressed in further detail below, in my view the evidence I received falls short of establishing that Ms Z. actively instructed and/or encouraged Z. to make false allegations about her father. I do not accept or believe that Ms Z. did that.

d. However, as noted earlier in these reasons, Z. is an extraordinarily intelligent and precious child. As she herself expressly emphasized during her video-recorded interview with D.C. Federman, Z. is also an extremely inquisitive, observant, and perceptive child, who takes a great interest in watching and learning from the actions of others and is very sensitive to the emotions of others. As she demonstrated repeatedly during the course of that same video-recorded interview and at trial, Z. also learns quickly; e.g., quickly, and repeatedly incorporating, into her answers, the technique D.C. Federman had mentioned in passing for demonstrating time durations.

e. Having regard to such realities, I think it entirely unlikely that Z. would not have discerned that her mother was feeling intensely frustrated and challenged by her inability to relocate with Z. to Italy, to start a new life there with L. and G., and that Mr B., (with whom Z. did not enjoy spending time in any event), effectively was the roadblock standing in the way of her mother’s happiness and her own happiness. Without limiting the generality of the foregoing, I think it highly improbable that Z., at some point in time, realistically would not have overheard and understood some form of discussion, communication or comments concerning such matters, in circumstances where:

i. Z. never wished to be far from her mother;

ii. Ms Z. admittedly was on the telephone several times a day with her daughter L. begging Ms Z. to relocate to Italy;

iii. Ms Z.’s son and Z.’s sibling G. was living in the same home, also wanting to relocate to Italy, and undoubtedly communicating with his mother about his desires in that regard to some extent; and

iv. Ms Z. also inevitably would have been engaged in some form of communication with her family law lawyer about such matters.

f. Moreover, as noted above, Z. herself confirmed her awareness that it was Mr B. who effectively was standing in the way of her own desire to move to Italy, which she personally had emphasized to him, and which her mother was supporting despite Mr B.’s opposition in that regard, which was leading to further conflict between her parents and obvious further unhappiness for her mother.

g. Having regard to Z.’s obvious intelligence and creativity, I think that Z., confronted with such realities, was quite capable of independently forming a plan, on her own, to simultaneously bring an end to her ongoing unwanted and forced interactions with her father, put a halt to the ongoing conflict between her parents, address and solve her mother’s unhappiness about being unable to move to Italy without Z., and bring about Z.’s own desired and expressly stated goal of moving to her preferred country of Italy with her mother and siblings; i.e., a plan involving the making of false allegations of inappropriate touching by her father.

h. In short, in my view, Z. not only had a demonstrated motive to fabricate allegations of misconduct against her father, but an ability to do so, and do so convincingly.

6. In my view, there were also troubling indications that Z.’s evidence may not have been entirely independent, in the sense that it may have been influenced by conversations with her mother and/or questions that were put to her. In that regard:

a. As noted above, Z. confirmed during the course of her video-recorded police interview, (only when prompted to do so by specific questions in that regard posed by D.C. Federman), that Z. had talked with her mother about her father never cutting his fingernails, which in turn would hurt her when her father touched her vagina. I do not discount the realistic possibility that Z. independently may have raised such matters with her mother during the course of her initial disclosure, and that her mother legitimately may have relayed such indications to the police when recounting revelations made by Z. to her mother that led to police involvement. However, it also seems to me that infliction of pain during inappropriate touching is something a child of Z.’s obvious intelligence and precocious maturity would be more likely to have remembered and raised independently with D.C. Federman, when recounting the alleged incidents of inappropriate touching, had such infliction of pain genuinely occurred in such a manner.

b. Although Crown counsel did not rely on Mr B.’s alleged kissing of Z. in support of the charge of sexual interference, I think it worth noting that Z. herself also raised no complaints or concerns in that regard, (despite being questioned at length about incidents of inappropriate touching), until she was expressly prompted to do so by D.C. Federman asking Z. whether her father had ever kissed her on the lips. That in turn prompted Z. to express surprise and curiosity about the inquiry; i.e., asking D.C. Federman why he was asking about that, in response to which D.C. Federman informed Z. that he had been talking to her mother in that regard. It was only then that Z. thereafter began to express anger and frustration about her father kissing her on the lips, (unlike the form of kissing used by other members of her family), despite her asking him to stop doing that, and her feelings that such kissing on the lips was “really offensive” having regard to her age and the age of her father. Had Z. originally felt that such kissing on the lips was so offensive, I think it likely that Z. would have raised such concerns independently in the course of her original extended account of alleged acts of inappropriate touching by her father, (before she effectively was prompted to do so), and that she would not have reacted with such obvious surprise and curiosity to D.C. Federman asking about such matters. The fact that Z. enthusiastically embarked thereafter on further complaints in relation to such matters, only after D.C. Federman referred to conversations with Z.’s mother about that subject, suggested to me that Z. was providing evidence in that regard in a desire to please her mother.

c. For the reasons I noted a short time ago, I think there is good reason to believe that Z.’s evidence may have been influenced more generally by exposure to communications about the desire of her mother and siblings to relocate to Italy with Z., and Mr B. standing in the way of such a relocation, even if those engaged in such communications may not have been consciously aware of such influence.

d. Finally, on this point, I note, (and will discuss in further detail), Ms Z.’s acknowledgement that she actually was the one who raised the subject of Mr B. taking photographs of Z. with Z., which in turn clearly prompted Z. to make an allegation, of Mr B. taking a photo of her vagina and bum, that Z. had never made before, including during her earlier police interview on April 30, 2021.

c. On the whole, despite the superficial impressive quality of Z.’s evidence, in my view there is good reason to have serious reservations about her credibility and reliability as a witness.

37As for the testimony of C.Z.:

a. In my view, Ms Z. generally presented as a witness who took her testimony very seriously, and who generally was trying to present an accurate account of events from her perspective, despite indications in her demeanour and responses making it clear, I think, that she found it unpleasant to discuss inherently personal matters such as her marriage breakdown and divorce in the public setting of a trial. She also was a careful and precise witness. For example, at various points during her testimony, she sought to clarify precisely what was being asked of her. At other points, she emphasized that she deliberately had stated or worded her answers in a certain or qualified way that was not always consistent with subsequent paraphrasing by counsel.

b. In my view, there nevertheless also were some troubling aspects to Ms Z.’s testimony. In that regard:

1. There were times during her testimony – and her cross-examination in particular -- when Ms Z., in my view, seemed excessively cautious, needlessly defensive and/or otherwise unreasonably reluctant to fairly acknowledge points in cross-examination that eventually were conceded or otherwise established. For example:

a. I saw little or no justification for Ms Z.’s extraordinary reluctance to admit or acknowledge that Z. has struggled with separation anxiety, as far as her mother is concerned; i.e., in terms of not wanting to be away from her mother. As defence counsel necessarily demonstrated through cross-examination, Ms Z. already had expressly indicated at paragraph 28 of her formal family law application, issued with her approval on January 21, 2021, that “Z. has separation anxiety when she separates from her mother”. Ms Z. also had expressly indicated to D.C. Federman, during her own police interview on April 30, 2021, that Z. was seeing a therapist for “a kind of separation anxiety”. Given those realities, I saw no legitimate reason for Ms Z.’s marked reluctance to acknowledge at trial what she already had acknowledged in other contexts, or for her quibbles about whether Z. suffered from separation anxiety or a “kind of” separation anxiety before or after separation. In my view, those were distinctions without meaningful difference. The obvious point defence counsel was trying to confirm, and which Ms Z. eventually acknowledged, was that Z. really does not like being separated from her mother. Even then, Ms Z. sought to minimize Z.’s struggles in that regard; i.e., repeatedly indicating that Z. experienced only “a little bit” of such separation anxiety. However, that minimization frankly seemed inconsistent with the other evidence I received, including the indication at paragraph 29 of Ms Z.’s own family law application, indicating that Z. has been seeing a psychologist since the age of four “because of her anxiety, including her separation anxiety”. A separation anxiety condition warranting years of ongoing therapy in such a young child, and which Ms Z. herself chose to emphasize in her family law pleading, does not strike me as something that was perceived to be just “a little bit” of a concern.

b. Ms Z. also seemed needlessly defensive and punctilious when it came to acknowledging the reasons for her family law application and the accuracy of its content. Even after she had acknowledged reviewing and approving that document before it was signed and delivered, Ms Z. insisted on taking issue with some of its precise phrasing, and in my view was unreasonably reluctant to agree with defence counsel’s simple requests to have Ms Z. confirm and acknowledge the truth of what she and her own application effectively had asserted to be true back in January of 2021.

c. I also thought Ms Z. was inappropriately defensive and reluctant when it came to answering defence counsel’s questions seeking basic confirmation that Z. and her mother had engaged in at least some conversation, between Z.’s first police interview on April 30, 2021, and second police interview on May 5, 2021, relating to Z.’s allegations of misconduct by her father. Clearly, there had been some such conversation, as that was what allegedly had prompted Ms Z. to contact D.C. Federman in the wake of Z.’s first police interview, indicating that Z. appeared to be providing additional relevant information, (e.g., in relation to Mr B. possibly taking an inappropriate photograph of Z., and/or kissing Z. inappropriately on the lips and vagina), that the police might need or want to hear via a second police interview. Moreover, as highlighted by defence counsel in cross-examination, in the recorded statement Ms Z. herself provided to D.C. Federman on May 5, 2021, Ms Z. made a number of comments referring to Z. speaking to her mother about what she had said during her first police interview. Instead of simply acknowledging that there had been some such conversation, Ms Z. proactively and defensively emphasized that Z. had not told her everything in that regard, and that Z.’s statements and further disclosures had not been initiated by Ms Z. asking her any questions. In my view, there was no need for such responses, which nevertheless indicated that Ms Z. was keenly aware of possible issues relating to Z.’s allegations being influenced by others, and eager to refute them.

d. As a final example of my concerns about Ms Z. being overly defensive, and unwilling to reasonably acknowledge what should have been acknowledged, I have in mind her repeated refusal to acknowledge that answers she had given in response to questions posed by D.C. Federman on May 5, 2021, focused on whether it was Z. or her mother who had brought up the subject of Mr B. taking photographs of Z., had suggested a number of times – on their face at any rate – that it was Z. rather than Ms Z. who had done so; i.e., despite Ms Z.’s collateral acknowledgement that she was the one who had done that.

2. While Ms Z. admittedly did not witness any of the inappropriate touching alleged by Z., she clearly seemed to be drawing and/or suggesting factual inferences as to what may or may not have happened; inferences which sometimes were contradicted by the evidence presented by Z. herself. Most notably, Ms Z. admittedly indicated to D.C. Federman and then testified at trial that Z.’s behaviour and attitude towards her father underwent a drastic negative change following Z.’s first overnight visit with her father following her parents’ separation, in turn strongly implying that something inappropriate had occurred during that first overnight visit and continued thereafter. For example, Ms Z. emphasized that, although Z. previously had been content to visit with her father in the park and elsewhere, and to go to the first planned overnight visit with her father, from the time of that first overnight visit onwards, Z. would cry, scream and engage in temper tantrums each and every time she was to have a visit with her father, saying “Protect me, help me”, and that Z. was expressing extreme distress after each such visit, including a number of statements by Z. indicating that she wanted to “disappear” and/or “wanted to die”, and that her mother had to “save” her. However:

a. In her video-recorded police interview with D.C. Federman, Z. herself indicated, in relation to the overnight visit in question, that she simply indicated the morning after her first overnight sleep at her father’s residence that she did not like it there, told her father so, and began crying – which in turn led to her father driving her back to her mother’s home, all without any suggestion by Z. of any inappropriate touching on that occasion. In her testimony at trial, Z. also expressly confirmed that her father “didn’t touch her private parts” during that sole overnight visit with him, and that she recalls crying on the occasion in question only because of something her father had said.

b. Ms Z.’s testimony at trial did not include any express indication of Z. having claimed that she was touched inappropriately by Mr B. during that sole overnight visit. Initially, Ms Z. simply indicated that Z. had returned from the visit in a “very distressed” state, indicating that evening that she did not want to see her father anymore, and did not want to go on such visits anymore, with Ms Z. not asking for clarification as to whether such comments by Z. were intended to apply only to overnight visits with her father, or to any visitation with her father. Moreover, in cross-examination, Ms Z. confirmed that Z. actually had never told her that Mr B. touched her inappropriately during that sole overnight visit.

c. Although Ms Z. appeared to be implying that Z. may have been inappropriately touched by Mr B. from the time of that first and only overnight visit onwards, (i.e., expressing in relation to all subsequent visits that she was extremely distressed, desperate for protection and/or ‘wanted to die”), it must be remembered that the overnight visit in question took place in mid-August of 2020, and Z. herself was quite definite that the first alleged instance of inappropriate touching by her father did not occur until the end of September, 2020. If Z. was indeed displaying such histrionics regarding visits with her father in the six-week interval in-between, her own evidence combined with that of her mother makes it clear that behaviour was not attributable to any alleged misconduct on the part of Mr B.

3. In my view, the concerns I have identified in relation to the testimony of Ms Z. nevertheless fall short of giving adequate reason to think that Ms Z. was intent on consciously providing inaccurate or otherwise false evidence during the course of her testimony, or that she deliberately prompted or encouraged Z. to do so. Without limiting the generality of the foregoing, I do not accept the implicit or explicit suggestion of defence counsel that Ms Z. in any way deliberately instructed or encouraged her daughter to make false allegations in relation to her father. In that regard:

a. Bearing in mind the same principles I identified earlier in relation to motive to fabricate, I accept that the defence in this case has established, (albeit without any obligation or onus to do so), that Ms Z. also had a motive to fabricate false allegations and corresponding evidence in relation to Mr B. In particular, Mr B.’s prima facie rights to parenting time with Z., and his opposition to exercise of those rights effectively being frustrated in large measure by Ms Z.’s proposed permanent relocation to Italy with Z., clearly placed Ms Z. in the unfortunate parental dilemma outlined in her family law application; i.e., of a parent effectively being forced to choose between her children, in terms of desired cohabitation. Ms Z. also admittedly was extremely unhappy with her inability to relocate to Italy with Z. and her other children, where various considerations suggested a new life characterized by familial support, economic independence, and a return to familiar surroundings she generally enjoyed. As subsequent developments would confirm, allegations of sexual interference by Mr B. in relation to Z., a resulting criminal charge and conditions of release preventing further contact between Z. and her father until this extended criminal proceeding ran its course, effectively would undermine and effectively destroy the already very challenging and problematic relationship between Mr B. and Z., in turn making Mr B. more disposed to “giving up” on such a relationship and consenting to Z.’s proposed relocation to Italy with Ms Z. Alternatively, a criminal conviction in that regard almost certainly would bring an end to any further contact between Z. and her father, regardless of Mr B.’s desire for a continued relationship in that regard.

b. However, Ms Z. having such a motive to fabricate, and acting in furtherance of that motive by fabricating allegations or evidence in relation to Mr B., or encouraging her daughter to do so, is another thing altogether. In that regard:

i. In my view, this was not a situation bearing the hallmarks of a parent intent on alienating her child from the child’s father, or willing to readily accept such an outcome.

ii. To the contrary, the evidence before me indicates that, following separation, Ms Z. immediately supported and agreed to parenting arrangements that involved multiple visits between Mr B. and Z. each week, and contemplated, from the outset, the introduction of overnight visits that would progressively increase in duration. Moreover, Ms Z. appears to have maintained her active support for such visits even when they became increasingly problematic; e.g., willingly driving Z. from Waterloo to Stratford and back, and willingly waiting outside Mr B.’s residence in her car during visits with contemplated durations of up to four hours. In my view, such conduct is consistent with Ms Z.’s testimony that she wanted the relationship between Z. and her father to continue, despite her parents’ separation.

iii. Although Ms Z. admittedly was placed in an unfortunate situation by Mr B.’s opposition to her proposed relocation to Italy with Z., in terms of effectively having to choose between the children she would live with unless and until the court granted her permission to relocate to Italy with Z. despite Mr B.’s opposition, I accept her testimony that she effectively had made her choice in that regard; i.e., insofar as she realized she could and would never leave Z. behind in Canada, (having regard to Z.’s age and heightened dependency on Ms Z.), and the reality that her older children were more self-sufficient and capable of visiting with her and Z. in Canada.

iv. I also have regard to the reality that, when Z.’s allegations regarding Mr B. were conveyed to the authorities in late April of 2021, Ms Z. was in the process of taking appropriate steps to secure court authorization for her desired relocation to Italy with Z., and the court had not yet begun to deal with the matter substantively, let alone given any indication of an adverse substantive determination in relation to Ms Z.’s request. For the reasons I outlined earlier, I attach little significance to the “coincidence”, emphasized by defence counsel, between the first indicated return date of Ms Z.’s family law application and the timing of Z.’s allegations on April 28, 2021. Again, having regard to the workings of our family court, there was no realistic prospect of Ms Z.’s application being heard or determined on that date, and I accept the testimony of Ms Z. that the matter already had been adjourned by the time of Z.’s indicated disclosure.

v. If impatience to relocate to Italy with Z. and her other children was Ms Z.’s supposed incentive to take the inherently drastic step of acting on her motive to fabricate false allegations and/or evidence in relation to Mr B., one also wonders why Ms Z. would have delayed doing so for approximately half a year; i.e., between the time of advancing her proposal to Mr B. in October of 2020, and the time of Z.’s described disclosure on April 28, 2020.

vi. Finally, on this point, Ms Z. simply did not strike me as someone who deliberately would engage in manipulation of the legal system, through reliance on knowingly false allegations advanced by her daughter Z., to gain a civil advantage at the expense of Mr B.’s personal liberty. Throughout her appearance before me, Ms Z. demonstrated a serious and respectful approach to this legal proceeding, and again, she clearly had committed to engaging and abiding by the court’s process in relation to her family law application. I accept her testimony that, although she very much wanted to relocate to Italy with Z., she was not “desperate” to do so. Nor do I think she was “desperate” enough to act on her motive to fabricate allegations and evidence in relation to Mr B.

4. On the other hand, I think it abundantly clear that Ms Z. loves Z. very much, which in turn would make her strongly disinclined to believe or accept the possibility that her daughter would advance serious but false allegations of this nature against her father. Moreover, Ms Z. struck me as a person of sufficient honesty and integrity to appreciate that, if the cessation of contact between Mr B. and Z. and Mr B.’s resulting agreement to “give up” and let Z. relocate to Italy were based on fabrications by Z., a serious injustice will have been perpetrated in that regard. In other words, I think Ms Z. has a strong motivation to believe and accept the truth of whatever Z. has been saying about Mr B., and to minimize the possibility of Z. having other reasons to say what she has said in that regard.

38With all of the above matters in mind, I turn, finally, to a consideration of the specific sexual interference charge against Mr B.

CONSIDERATION OF PARTICULAR CHARGE AGAINST THE ACCUSED

39The specifics of that charge, as set forth in the indictment, already have been noted earlier, along with an outline of the essential elements of the offence Crown Counsel must prove beyond a reasonable doubt in order to secure a conviction for sexual interference.

40In my view, (apparently shared by the parties based on the focus of Crown counsel and defence counsel submissions), the real issues in this case relate to what I have described earlier as the second essential element of sexual interference which the Crown must prove beyond a reasonable doubt; i.e., focused on whether the Crown has proved beyond a reasonable doubt that Mr B. touched Z.Z. in the manner she has alleged.

41Without limiting the generality of the foregoing, in my view the first and third essential elements of sexual interference the Crown is required to prove beyond a reasonable doubt in order to secure a conviction in that regard, (i.e., that Z.Z. was under the age of 16 at the time of the alleged offence, and that the alleged touching of Z.Z. by Mr B. upon which the Crown relies would have been for a sexual purpose), were not really areas of serious dispute in this trial.

42In relation to the first essential element of sexual interference requiring proof beyond a reasonable doubt to secure a conviction, (i.e., that Z.Z. was under the age of 16 at the time of the alleged offence), the Crown obviously and easily has met its burden of proof in that regard. In particular:

a. As noted above, it is alleged in the underling indictment that the alleged sexual interference took place between September 30, 2020, and April 28, 2021.

b. Both Z.Z. and her mother C.Z. testified that Z. was born on [a specified date in July of] 2014, and their evidence in that regard was not disputed in cross-examination.

c. Z. therefore clearly was not only under the age of 16 at the time of the alleged offence but was still under the age of 16 at the time of trial.

d. The first essential element of sexual interference accordingly has been proved beyond a reasonable doubt.

43In relation to the third essential element of sexual interference requiring proof beyond a reasonable doubt to secure a conviction, (i.e., that the alleged touching of Z.Z. by Mr B. upon which the Crown relies was for a sexual purpose, if it occurred), I find the Crown has met its burden of proof in that regard as well. In particular:

a. As noted earlier, touching is done for a sexual purpose if it is done for an accused person’s sexual gratification, or to violate a complainant’s sexual integrity, and includes any act meant to degrade or demean a complainant in a sexual way.

b. If the Crown is able to prove beyond a reasonable doubt that the acts of touching alleged by Z.Z. and relied upon the Crown in support of the charged sexual interference offence occurred, in the manner described by Z., then in my view the Crown also will have proved beyond a reasonable doubt that the touching was done for a sexual purpose, in the sense required. In particular, deliberate and repeated touching by Mr B. of Z.’s vaginal area and the central area of her bottom between her buttocks, serving no apparent necessary or practical purpose in the circumstances described by Z., (e.g., with no apparent connection to assisting Z. with matters of hygiene as part of legitimate and age-appropriate parental care), would give rise to an overwhelming inference that the touching was being done for a sexual purpose; i.e. Mr B.’s sexual gratification.

c. Indeed, during the course of closing submissions, defence counsel expressly indicated that, if I were to find that Mr B. was touching Z.’s vagina or bottom in the manner she described, that would make out the offence of sexual interference, as those acts would have been done with the requisite intent and purpose. The defence position is that the alleged acts never took place.

44So once again, in terms of whether or not Mr B. should be found “guilty” or “not guilty” of sexual interference, this case accordingly turns on what I have described earlier in these reasons as the second essential element of sexual interference which the Crown must prove beyond a reasonable doubt; i.e., that Mr B. touched Z.Z. in the manner she has alleged. In that regard:

a. I remind myself that it is for Crown counsel to prove beyond a reasonable doubt that the alleged events underlying the charge of sexual interference in fact occurred. It is not for Mr B. to prove that the alleged events underlying the charge never happened. If I have a reasonable doubt whether the alleged events underlying the charge ever took place, I must find Mr B. not guilty of the charged offence.

b. I also remind myself that my duty is to consider all of the evidence and decide whether I have been satisfied beyond a reasonable doubt that the events that form the basis of a charged crime in fact took place.

c. However, having considered all the evidence presented at trial, I simply am not satisfied beyond what I consider to be a reasonable doubt that the events alleged by Z., underlying the charge of sexual interference, ever occurred. Without limiting the generality of the foregoing in that regard:

1. For the reasons I outlined earlier in extended detail, Z.’s evidence was, in material and significant ways, internally inconsistent, inconsistent over time, implausible, demonstrably or admittedly inaccurate and untrue, presented against a backdrop of Z. having a motive to fabricate allegations of misconduct by her father, and possibly influenced by others.

2. In my view, those concerns collectively are more than sufficient to make me unsure that the alleged events relied upon by the Crown, in support of the sexual interference charge against Mr B., ever happened. I accept and entirely agree with defence counsel’s submission that it would be quite unsafe to find that they did. In other words, for the reasons I have outlined, I have what I consider to be a reasonable doubt in that regard.

45Failure by the Crown to prove the second essential element of the alleged sexual interference offence beyond a reasonable doubt is sufficient to require a finding of not guilty in relation to the charge.

46In other words, as the Crown accordingly has failed to prove all essential elements of the charged offence of sexual interference beyond a reasonable doubt, there will be a finding of “not guilty” in relation to the single remaining count of the indictment; i.e., what was originally labelled in the underlying indictment as Count 2, relating to the charged offence of sexual interference.

Conclusion – Formal delivery of verdict

47At this point, I will ask the accused, Mr B., to please stand.

48Mr B., for the reasons I have outlined, in relation to what was labelled as Count #2 of the indictment, accusing you of sexual interference contrary to section 151 of the Criminal Code, (i.e., the only remaining count of the indictment), I find you not guilty.

49The electronic indictment will be endorsed accordingly.

Justice I.F. Leach

Released (orally): March 28, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

M.B.

REASONS FOR JUDGMENT