Court File and Parties

LONDON COURT FILE NO.: CR-23-0002-0000 DELIVERED ORALLY: Tuesday, January 23, 2024

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – M.T

Counsel: Shane Wright, for the Crown Jessica Cacciavillani and Roland Acheson, for the Defence

HEARD: September 11, 12, and 13, 2023

Reasons for Judgment

Howard J.

Overview

[1] The accused, M.T also known as M.T, [1] is charged in a three-count indictment with one count of sexual interference, contrary to s. 151 of the Criminal Code, [2] one count of sexual exploitation, contrary to s. 153(1)(a) of the Code, and one count of sexual assault, contrary to s. 271 of the Code.

[2] All three counts involve the same complainant, a young female person, who is shielded from identification in this proceeding; hence, I refer to her as “the complainant” or, on occasion, by the initials “H.H.”

[3] The accused is the complainant’s step-father. The evidence indicates that H.H. first met the accused when she was about two years of age. In 2013, the complainant’s mother and the accused were married, although they had been romantically involved for about a year or a year-and-a-half before their marriage.

[4] It is common ground that at the time of the alleged incidents in question, H.H. was a person under the age of 16 years. In contrast, at the time of the last alleged incident, the accused was 38 years of age.

[5] The offences in question involve five incidents that arose out of the interactions that occurred between the complainant and the accused during that time when they resided together in the same homes. The complainant alleges that the first incident occurred when she was just nine or ten years of age and the last incident occurred when she was 13 years of age, a year before these incidents were eventually reported to the police.

[6] For their part, M.T denies ever assaulting the complainant or ever inappropriately touching her. Thus, M.T pled not guilty to all three counts.

[7] The trial of this matter was held, without a jury, in London on September 11, 12, and 13, 2023. The court heard evidence from three witnesses over two days. Final submissions were delivered on the third day. The witnesses at trial consisted of the complainant, [3] the complainant’s mother, and M.T.

[8] At the conclusion of his closing argument, Mr. Wright on behalf of the Crown invited the court to dismiss the sexual exploitation charges set out in Count 2 of the indictment.

Factual Background

[9] I do not propose to recite the entirety of the evidence given by each of the witnesses who testified in any great detail. My review of the evidence at trial is limited to those facts that are significant to the central issues or that provide context necessary to appreciate and determine the relevant issues. As such, I will deal with some of the relevant evidence in the course of my analysis below. That evidence was also summarized in counsel’s closing argument, which I have also considered.

[10] Born in May 2007, H.H. was 16 years of age at the time of trial and was attending Strathroy District Collegiate Institute in her Grade 11 year.

[11] Following disclosure of the alleged incidents in question, the complainant was interviewed by Detective Constable Christopher Graham of the Strathroy-Caradoc Police Service on June 17, 2021, and a video-recording of that interview was made. On consent, pursuant to s. 715.1(1) of the Code, I ordered that the video-recording was admissible in evidence at trial. [4]

[12] The complainant was 14 years of age when she was interviewed by D.C. Graham.

[13] M.T was born on August 26, 1981, and, as such, was about 35 or 36 years of age at the time of the first alleged incident, 38 years of age as of the last alleged incident, and 42 years of age at the time of trial.

[14] As referenced above, the complainant’s mother, C.H., and the accused started their romantic relationship in or about 2011 and were married in 2013. The mother has two children from a previous relationship, being the complainant and her older brother, R.D. The mother and the accused have one biological son together, M.H.T.

[15] The mother and the accused first moved in together with the children in 2011 in London, on Southdale Road East. There are no allegations that arise out of the London residence.

[16] In or about 2013 or 2014, the mother, accused, and three children moved to Strathroy, where they resided together in a residence on Penny Lane. They moved there shortly after the youngest brother, M.H.T., was born. The evidence of the mother was that the family was at the first residence on Penny Lane until December 2016. (I note that in December 2016, the complainant was nine years of age.) The evidence of the accused was that they left the first Penny Lane residence in late 2015 or 2016. It is alleged that the first four of the five alleged incidents occurred at the Penny Lane residence.

[17] Following some family turmoil, as described below, the mother separated from the accused, and she and the two youngest children, including the complainant, moved out of the Penny Lane residence into a woman’s shelter. The accused moved in with the mother’s friend, one Courtney, with whom the accused was then having an extra-marital, romantic relationship. The evidence of the mother was that she and the children were at the shelter for some three months. There are no allegations that arise out of the complainant’s time spent in the family shelter.

[18] In or about 2014, C.H. and the children moved into the residence with her friend Courtney, with the accused, and Courtney’s family, which residence was also located on Penny Lane in Strathroy but at a different residence than the family’s first home in Strathroy. There are no allegations that arise out of the parties’ time spent at Courtney’s home at the second Penny Lane address.

[19] The best recollection of the complainant was that in March of some year, the family moved into a residence on Cassie Crecent in Strathroy. The evidence of the complainant was that her older brother, R.D., remained at Courtney’s residence with her step-father, at the second Penny Lane address. The mother’ evidence was that they moved into 22 Cassie Crescent in Strathroy in 2020. Her evidence was that the accused resided both with Courtney at her home on Penny Lane and with the mother at Cassie Crescent, staying at the Cassie Crescent home most nights during the week. It is alleged that the fifth and last incident is alleged to have occurred at the Cassie Crescent home in the spring of 2020.

[20] It is common ground, and I find, that the accused stood in the place of a father to the complainant. At trial, the complainant referred to the accused as her dad or step-dad. The accused testified that they saw her as their daughter.

[21] It is also common ground that the relationship between the accused and the mother deteriorated over time. The complainant said that over the years, there was a lot of screaming, yelling, fighting, and throwing things. The accused testified that, “if we didn’t have an argument twice a week, something was wrong.” The evidence of the complainant was that sometimes things got physical; she said that sometimes the accused would punch holes in the walls and try to break doors. The evidence of the accused was that the relationship between the accused and C.H. was like “nuclear warfare.”

[22] The evidence of the complainant was that her parents would argue about money sometimes but a lot of it was about the accused “cheating on” her mother. She testified that there was a lot of infidelity by the accused over the years. The evidence of the accused was that they fought over “trivial things” at first but then over the accused’s infidelity. The accused testified that during the time they were in a relationship with the complainant’s mother, M.T also had relationships with five other women. The accused clarified that these other relationships were not simultaneous, but the repeated infidelities caused “issues and arguments” with C.H. It is common ground that one of these extra-marital partners was Courtney, who was actually a friend of the complainant’s mother.

[23] The evidence of the accused was that the accused has six biological children, all by separate partners.

[24] The relationship between the accused and the complainant’s mother broke up in late October or November 2020.

[25] The initial disclosure of the allegations in question by the complainant came the following June and, as I have said, the complainant was interviewed by the police on June 17, 2021.

[26] The first incident of abuse is alleged to have happened at the first Penny Lane residence in Strathroy when the complainant was nine or ten years of age. There were three bedrooms on the main floor in that home. It was late at night, perhaps 11 p.m. or 12 midnight, and the complainant was in bed in her bedroom trying to sleep. She was facing the wall. Her parents and two brothers were also home. The accused entered the complainant’s room, although she did not actually see them enter, and they then laid down in the bed beside her and put an arm around her. The accused started to touch her vagina on the outside of her clothes, and they then put their hand underneath her underwear and touched her vagina, skin on skin. The complainant testified that the accused was rubbing “down there.” She said that it was very uncomfortable and that she did not like it, but she did not say anything “because it was scary.” She testified that, eventually, after about 20 or 30 minutes, the accused got up and left the room. The complainant testified that she was wearing shorts, underwear, and a T-shirt; she said that the accused was wearing a T-shirt and pyjama pants. The evidence of the complainant was that she did not sleep well that night because she was scared.

[27] The complainant testified that when she got up the next morning, the accused acted like nothing had ever happened.

[28] The evidence of the complainant was that there were two more incidents in the Penny Lane home, and the events transpired essentially the same way as what happened during the first incident. The accused entered her bedroom late at night when she was in bed, either playing on her phone or tablet; the accused laid down in bed beside her and touched her vagina, both on top of her clothes and underneath her clothes. As with the first described incident, there was no digital penetration. To the complainant’s mind, the only real difference was that the second and third incidents were much shorter in duration. She believed they each lasted five or ten minutes.

[29] The complainant also gave evidence about a fourth incident that happened in the same home on Penny Lane. However, unlike the first three incidents, this fourth occurrence did not happen at night when the complainant was in her bedroom. The complainant said that this fourth incident happened during daylight hours when she was on the couch in the living room. She had stayed home from school that day because she was feeling sick. Her evidence was that she was home alone with the accused; her mother was at work, her older brother was at school, and her younger brother was at daycare. She testified that they were watching a Disney movie, which she believed was Descendants 2 because, she said, Descendants 3 had just come out or been released, “and we wanted to watch them in order.” Situated in the middle of the couch, the complainant was sort of slouched down or lying down. She testified that the accused was seated on the right side of her. Her evidence was that the accused reached over and touched her vagina; she described similar touchings as occurred during the earlier episodes, with contact both over her clothes and under her clothes, skin on skin.

[30] The fifth and final incident is alleged to have occurred in the spring of 2020 when the complainant was still just 13 years of age. This last episode occurred when the family was residing at the Cassie Crescent home in Strathroy. The complainant testified that it was late at night, and she was laying in bed in her bedroom, laying on her right side, watching a YouTube video on her cell phone. She said that the accused entered her bedroom and laid down beside her in bed, to the left of her. She said that the accused reached over and turned or pushed her on her back from her side. Reaching over with their arm, the accused put a hand down into her clothing and touched her vagina underneath her clothing. The complainant testified that on this occasion the accused also placed their fingers inside of her vagina and was moving them in and out. She testified that it was very uncomfortable, and she did not like it, but she said nothing; she said she was trying not to cry. The complainant also testified that at one point the accused placed their other hand on her breast underneath her clothing. The complainant testified that her YouTube video stopped, but she was frozen because she did not know what to do. She recalled the accused whispering something to her but all she can remember was the accused saying words to the effect that it will be okay.

[31] The evidence of the complainant was that after about five or six minutes of this activity, her bedroom door opened, and her mother entered the bedroom. C.H. asked the accused what he was doing. The complainant testified that she did not respond but the accused replied that he was just watching something with the complainant on her phone, and the accused then got up out of her bed and left the room with her mother, and they both went to bed. The evidence of the complainant was that her mother did not notice anything because “it was dark, and he played it off like nothing was happening.” She testified that the next morning, they all just went on with their days, like it never happened; her mom went to work, and she stayed in her room all day playing a video game.

[32] The complainant testified that at the time of the last incident, she was wearing a tank-top, bra and underwear, and sweat-pants. She said that the accused was wearing just his pyjama pants; she then allowed that maybe he was wearing a shirt, but she could not remember exactly.

[33] The evidence of the complainant was not clear as to when these subsequent incidents happened relative to the first. At trial, other than saying that the first episode happened when she was nine or ten years of age, which would place it in 2016 or 2017, the complainant could not really remember when the incident occurred. At the preliminary hearing, [5] she testified that she knew it was not the winter, but she thought it may have been in July or August.

[34] At trial, the evidence of the complainant was that the second incident happened perhaps six or twelve months after the first incident. However, at the preliminary hearing, the complainant said that it was a week after the first incident.

[35] At trial, the complainant said she could not remember when the third episode happened relative to the second. At the preliminary hearing, she said that she thought the third happened one or two months after the second.

[36] At trial, the complainant could not really remember when the fourth incident happened. At the preliminary hearing, she said she thought it was April, but she could not remember the year.

[37] The evidence of the complainant was much clearer concerning the timing of the fifth incident. She told the police in June 2021 that the last incident happened the year before, “before my birthday,” possibly in April or May, but “it was after March and before summer break.”

[38] The evidence indicates that the complainant made no disclosure of the events until May 2021. On May 19, 2021, the complainant was messaging with her best friend, J.D., through an instant messaging social media platform called Discord . Describing the exchange generally, the complainant said that J.D. was having a rough time and was venting to her about what was wrong, and J.D. indicated that the accused was one of the reasons why he was upset.

[39] In the course of their exchange, without describing the details of the physical touchings, the complainant indicated to J.D. that something happened to her, and she went on to say: “Except my mom woke up and came into my room and it looked like he was just laying down with me so then he got up and left.” [6]

[40] The evidence of the complainant was that having asked J.D. not to say anything about it, she thought it was going to remain private. She testified that she did not want to report it to the police, and she did not want to tell her mother. However, ultimately certain information came to the attention of J.D.’s mother, who then sent a text message to the complainant’s mother, and when C.H. confronted her daughter, H.H. made disclosure to her mother.

[41] As I have said, M.T testified at trial and, generally speaking, denied ever having inappropriately touched the complainant. Consistent with a blanket denial, the evidence of the accused in chief was relatively brief, lasting less than a half-hour. M.T described their relationship with the complainant’s mother; the accused acknowledged the problems in the marriage and the accused’s infidelities.

[42] M.T explained meeting the complainant when she was a toddler, perhaps two or three years of age, but as the relationship progressed, “she became my daughter. … I saw her as my daughter.” While the accused said of the complainant that “naturally, she became close,” in describing how involved they were with the children, the accused said that they were not “a helicopter parent,” they were not “hands on,” and that C.H. did most of the parenting. The accused said theirs was a “household full of gamers,” and they all did a lot of gaming, playing over a computer network.

[43] When asked if M.T was ever alone with the children, they replied “absolutely.”

[44] When asked if M.T was ever alone with the complainant, they initially replied “few and far between,” explaining that usually the younger brother was also home; but the accused did allow that, “sure, [they were] alone with [the complainant].”

[45] When asked if M.T was ever alone with the complainant in her bedroom, the accused acknowledged that such occurrences did happen and explained that she would often be on her cell phone watching videos, and M.T would ask her what she was watching. M.T testified that, “she never said she was uncomfortable with it.”

[46] When asked if M.T was ever in the complainant’s bed, the accused testified that while on Penny Lane, it was physically impossible because the complainant slept in a bunk bed and with the accused’s weight, they would break the bed.

[47] When asked if M.T was ever in the complainant’s bed when they lived on Cassie Crescent, they replied, “not usually but I have.”

[48] When asked if M.T was ever in the complainant’s bed when they lived in Courtney’s home on Penny Lane, the accused answered in the affirmative. When asked why they were laying in the complainant’s bed, the accused replied in order to comfort her. M.T said: “it’s a thing we did.” M.T explained that the complainant was not hard to read if she was upset; that they were generally checking up on her, “as I would with any of my children”; that M.T had conversations with her and watched videos on her phone with her.

[49] When asked how often this would happen, the accused testified that, “when she was younger more often. When she got older, it dwindled.” When asked why it dwindled, the accused replied that as the complainant was getting older, it was “not appropriate.” M.T made a point of saying that, “she never articulated that she didn’t want me in bed.” They said that if she had mentioned it, they would have been fine with it.

[50] M.T denied ever having entered the complainant’s room when she was asleep.

[51] M.T was asked if the complainant kept her door open or closed when she was in her bedroom, and the accused replied, “completely closed. On the odd time, maybe it’s open. But if she’s sleeping, it’s completely closed.”

[52] M.T was asked how they felt when the allegations surfaced; they replied, “angry; then sad; very alone.” I note the accused’s evidence that their first reaction was one of anger, and I recall the evidence of the complainant, who said that one of the reasons she did not want to tell anyone about what happened was because she was afraid that her step-dad would get angry. [7] It would seem the complainant’s insight was somewhat prescient.

Fundamental Principles

[53] It is instructive to review the fundamental framework of analysis in a criminal trial.

Presumption of Innocence and Reasonable Doubt

[54] The presumption of innocence is the most fundamental principle of our Canadian criminal justice system. It is the fundamental right of every person accused of criminal misconduct to be presumed innocent unless and until proven guilty by the evidence presented and established by the Crown. Accordingly, M.T, as every accused person charged with an offence, is presumed to be innocent unless and until the Crown proves their guilt beyond a reasonable doubt.

[55] The presumption of innocence is interwoven with the standard of proof required to displace that presumption. The standard of proof required of the Crown to secure a conviction in a criminal case is that it must establish each and every essential element of the offence against the accused by proof beyond a reasonable doubt.

[56] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. [8]

[57] It is not enough for me to believe that M.T is probably or likely guilty of assaulting the complainant. [9] In those circumstances, I must find M.T not guilty because Crown counsel would have failed to satisfy me of their guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Proof of probable or likely guilt is only proof on a balance of probabilities standard – and the standard of proof required in a criminal case is not the balance of probabilities. Again, the standard of proof required in a criminal case is proof beyond a reasonable doubt.

Assessment of Credibility

[58] It is common ground that where an accused elects to testify on his own behalf, and the court is presented with two competing versions of the critical events in question, such that credibility is important, then central to the court’s analysis of the case are the well-known principles in R. v. W.(D.). [10] Indeed, both Mr. Wright for the Crown and Ms. Cacciavillani for the defence submitted that the instant case is very much a W.(D.) case. There, the Supreme Court of Canada held that the trier-of-fact should be instructed on the issue of credibility in accordance with the following three-step analysis:

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

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

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [11]

[59] In my view, the commentary on the W.(D.) principles set out by Code J. in his decision in R. v. Thomas is of assistance. In that case, Code J. held:

… [ W.(D.) ] does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). …

… A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence. [12]

[60] The principles enunciated in W.(D.) are applicable whenever any evidence is called that is favourable to the accused. [13]

[61] As such, in the circumstances of the instant case, I must assess the evidence as follows:

a. if I believe the evidence of M.T that they did not commit the offence as charged, I must acquit them;

b. if, after careful consideration of all the evidence, I am unable to decide whom to believe, I must find M.T not guilty because Crown counsel would have failed to prove M.T’s guilt beyond a reasonable doubt;

c. even if I do not believe the evidence of M.T, but I am left in a reasonable doubt by their evidence as to any essential element of the offence charged, I must acquit them of that offence;

d. even if I do not believe and am not left in a reasonable doubt by the evidence of M.T, then I must consider, on the basis of all the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of M.T. Only where I am so convinced should M.T be convicted. It is a very high burden.

[62] That said, I well recognize that the determination of an accused’s guilt or innocence must not devolve into a mere credibility contest between a complainant and the accused. [14] Such an approach erodes the operation of the presumption of innocence and the assignment of the burden of proof beyond a reasonable doubt to the prosecution.

Credibility and Reliability

[63] Credibility and reliability are not identical concepts. As the Supreme Court of Canada recently noted, “[t]he jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty.” [15] In this vein, credibility asks whether the witness was telling the truth when he or she gave their evidence. Reliability asks whether the witness accurately received the information, accurately remembered the information, and accurately related the information in their testimony. A witness may be honest – i.e., credible – but simply wrong, simply incorrect, in relating past events – i.e., not reliable. I have considered both concepts in my assessment of the evidence.

[64] Where there are significant inconsistencies or contradictions within a witness’s testimony, or when considered against other conflicting evidence in the case, I must carefully assess the evidence before concluding that guilt has been established.

[65] Demeanour evidence alone cannot suffice to make a finding of guilt. One must not jump to conclusions based entirely on a witness’s demeanour when they were testifying. Giving evidence at a trial is not a common experience for many witnesses, and different people will react and appear differently. There are simply too many variables to make the particular demeanour in which a witness testifies the only or most important factor in one’s decision.

[66] To the extent a credibility or reliability assessment would be facilitated by a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the accused or confirm the complainant’s evidence in every respect – the evidence should, however, be capable of restoring the trier’s faith in the complainant’s account.

[67] That said, it must be remembered that corroboration is legally not required to sustain a conviction. [16] Indeed, it is an error of law to hold that “there can never be a conviction absent confirmation of the complainant’s testimony in a case of sexual assault where the only witnesses are the complainant and the accused.” [17]

[68] To make my decision on the issues of credibility and reliability overall, I must consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to me to decide how much or little I believe and rely upon the testimony of any witness. I may believe some, none, or all of it.

[69] One must use common sense and experience in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much, or how little, to believe of the testimony of any witness or how much to rely on it in deciding this case.

[70] I also recognize that the court must not engage in prohibitive reasoning based on either of the Twin Myths.

Evidence of Children

[71] In considering the evidence of the complainant, who was 16 years of age at the time she testified at trial, trying to recall events that occurred when she was still just nine or ten years of age, I must bear in mind the change in the attitude of the law towards the evidence of children.

[72] In this regard, guidance can be found in two decisions from the Supreme Court of Canada: first, the 1990 decision of Wilson J. in R. v. B.(G.), [18] and, second, the 1992 decision of McLachlin J. (as she then was) in R. v. W.(R.). [19]

[73] These cases indicate that a “common sense approach” is appropriate in dealing with the testimony of young children. It is not the case that the standard of proof must be lowered when dealing with the recollections of a child. Rather, the court must be mindful of the approach described by McLachlin J. in R. v. W.(R.), as follows:

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B.(G.), … when, in referring to submissions regarding the Court of Appeal judge’s treatment of the evidence of the complainant, she said that:

… it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the ‘reasonable adult’ is not necessarily appropriate in assessing the credibility of young children.

As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. 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 her mental development, understanding and ability to communicate . But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying . [20] [Emphasis added.]

[74] Moreover, as our Court of Appeal recently reiterated in R. v. A.A.: “[i]t is well accepted that peripheral details of a traumatic event can be difficult to recall and accurately describe at a later date[.]” [21]

[75] Where the evidence of a child has sufficient flaws, it remains prudent for the trial judge to seek confirmatory evidence even in light of the particular principles appropriate for assessing the credibility of child witnesses. [22]

Delayed reporting

[76] The case at bar involves a delay by the complainant in reporting the alleged sexual assaults. The first alleged incident, when the complainant was nine or ten years old, was not reported until four or five years later, in June 2021, when the complainant was 14 years of age. Even the last incident, occurring in or about April or May 2020, was not reported until just over a year later.

[77] There is, of course, “no rule as to how victims of sexual assault are apt to behave.” [23]

[78] The significance or evidentiary relevance, if any, of a complainant’s delayed reporting is contextual and will vary from case to case, depending upon the trier of fact’s assessment of the evidence relevant to the failure to make a contemporaneous complaint. The significance of the delayed reporting, if any, must be assessed globally.

[79] In the Supreme Court of Canada’s decision in R. v. D.(D.), a case involving a 10-year-old complainant who alleged that the accused, who lived with her mother, had sexually assaulted her on numerous occasions when she was five or six-years-old, the majority of the Supreme Court rejected the necessity of expert evidence on the issue of delayed disclosure and held as follows:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. [24]

[80] As our Court of Appeal said more recently in R. v. Lacombe, “[d]elayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual encounter is true or raises a reasonable doubt.” [25]

[81] Thus, as I assess the credibility of the complainant and the issue of delayed reporting, I will assess all the evidence globally, in light of the D.(D.) and Lacombe decisions.

[82] I instruct myself in accordance with all of these fundamental principles.

Law

Sexual crimes against young persons

[83] Count 1 of the indictment alleges that M.T committed the offence of sexual interference, contrary to s. 151 of the Code, which provides in pertinent part that:

Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year[.]

[84] “To establish sexual interference, the Crown must prove beyond a reasonable doubt each of these essential elements: that the complainant was under 16 years of age at the time; that the accused touched the complainant; and that the touching was for a sexual purpose.” [26]

[85] With respect to Count 3, as I approach the consideration of the appropriate legal analysis in sexual assault cases, I bear in mind the words of L’Heureux-Dubé J. in the Supreme Court of Canada’s seminal decision in R. v. Ewanchuk that, “the primary concern animating and underlying the present offence of sexual assault is the belief that women have an inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in.” [27]

[86] The essential elements of the offence of sexual assault were recently reiterated by the Supreme Court of Canada in R. v. G.F., as follows:

The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase, [1987] 2 S.C.R. 293. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused’s perception of consent is examined as part of the mens rea , including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90. [28]

[87] Given the age of the complainant at the time of the alleged offences, and the fact that M.T was more than two years older than the complainant, as a matter of law, it is not open to M.T to maintain that H.H. consented to the alleged sexual acts. For the purposes of the offences of sexual interference and sexual assault, that position is foreclosed to M.T by reason of the provisions of s. 150.1(1) of the Code, which provide that:

Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or … an offence under section 271 … in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

[88] Further, none of the exceptions set out in subsections 150.1(2) through (3) applies to the circumstances of the instant case.

Analysis

[89] Some common ground emerged from the closing submissions of Mr. Wright for the Crown and Ms. Cacciavillani for the defence.

[90] They both agree that the Crown’s burden of proof is central to the determination of this case. Further, as I have said, they both agree that the instant case is very much a W.(D.) case. And they both agree that the case for the Crown turns on the evidence of the young complainant here.

[91] When I consider, generally, the testimony of the complainant, I agree with the submissions of Mr. Wright that H.H. presented as a sincere, candid, forthright, and credible witness, whose evidence was largely internally consistent.

[92] I acknowledge that there were some inconsistencies in some aspects of H.H.’s evidence. It is readily apparent that the complainant had some memory difficulties recalling the dates and timing of the first four incidents (but not the fifth), and certainly Ms. Cacciavillani demonstrated some differences in the complainant’s evidence at the preliminary hearing and at trial in this regard. However, one must bear in mind the treatment to be afforded the evidence of children and the direction provided by McLachlin J. in R. v. W.(R.) that with regard to a complainant’s evidence pertaining to events that occurred in childhood, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.” [29] [Emphasis added.] It should also be recalled that as of the date of the preliminary hearing in December 2022, when the complainant was 15 years of age, she was trying to remember dates going back five or six years to 2016 or 2017 when she was just nine or ten years in age. In my view, given those significant gaps in time, it is entirely reasonable that the timeline of the first four incidents was not precisely fixed in the complainant’s recollection.

[93] I also acknowledge that the complainant’s evidence as to the physical positioning of herself, her cell phone, and the accused during the fifth alleged episode was not entirely clear and, in some respects, appeared to be inconsistent. However, she was clear, direct, and unwavering as to what happened to her, and any difference in her evidence as to positioning does not constitute, in my view, a material inconsistency.

[94] Apart from what I would describe as these minor inconsistencies, I found the defence efforts to impeach or challenge H.H.’s evidence to be largely ineffective. In my view, the complainant’s account of the actual incidents in question was direct, consistent, and not shaken in cross-examination. She was not evasive in her testimony. In my view, she emerged from cross-examination unscathed.

[95] Moreover, I noted several instances where the complainant plainly demonstrated a concerted effort to remain fair, balanced, and careful in her testimony – to a degree that the court does not routinely observe in every witness. That is, in giving her testimony, H.H. struck me as a witness who was attempting to be mindful of the limitations of her own knowledge and perceptions and was careful not to overstate or embellish her testimony.

[96] For example, twice in her cross-examination, when the complainant was being questioned as to the differences between the first alleged incident and the second and third incidents, the complainant made it clear that, while the method of the sexual touchings was similar, the incidents were not exactly alike. Specifically, when questioned, the complainant went out of her way to correct defence counsel that the second and third incidents were not “exactly the same” as the first incident because, as she said, they were shorter in duration. The complainant emphasized, more than once, that while the first episode lasted for 20 minutes or so, the second and third incidents were “a lot shorter” and lasted for only five to ten minutes. Not only did the complainant not take the opportunity to embellish her evidence, but she also went out of her way to correct defence counsel to make sure that her evidence was fairly stated, even though the corrected evidence was actually more favourable to the defence.

[97] In the same vein, when the complainant was testifying about the fifth incident and describing how the accused inserted his figures into her vagina – the only episode of digital penetration – when asked about the duration of that assault, the complainant said it lasted for five or six minutes. I pause to note that this was the most physically intrusive assault by the accused, but the complainant did not take the opportunity to embellish her account by saying that it lasted for 20 or 30 minutes like the first incident; rather, she stated matter-of-factly that it lasted for five or six minutes.

[98] As well, in describing the fifth and last incident, the complainant offered her view that she believed that she was “pretty sure” the accused had been drinking because “there were beer cans on the table the next morning,” and when asked by the police whether she smelled anything, the complainant answered in the negative. That is, she did not take the opportunity to embellish her account or demonize the accused and say that she smelled alcohol or anything funny on the accused’s breath; she simply indicated that she smelled nothing. To be clear, there is no direct evidence that the accused had been drinking that particular night.

[99] Further, when the complainant was being cross-examined about the volatile nature of her parents’ relationship, while she agreed with defence counsel that at times things got physical and dangerous, the complainant immediately added that, “he would never hurt my Mom.” I recall my reaction at the time of this evidence, and it struck me that in the face of counsel’s assertions, the complainant was making a concerted effort not to exaggerate the situation and, further, that she was actually being somewhat defensive of the accused.

[100] As well, in cross-examination, when Ms. Cacciavillani put to the complainant that she does not remember ever saying to the accused words to the effect of “stop, I don’t like that,” the complainant answered very clearly and very definitively that, “I never said that.” It goes without saying that it was not in the complainant’s self-interests to make that direct and unqualified admission; however, the fact that she made such a concession is something that I consider as another example of her concerted effort to remain balanced and even-handed in her testimony.

[101] I also note that there was some significant confirmatory evidence before the court that supported various aspects of the evidence of the complainant.

[102] To be clear, as I have said, not surprisingly, the accused denied ever having touched H.H. in an inappropriate manner, and the complainant’s mother quite fairly testified that she herself had never seen her then husband ever touch her daughter in a sexual manner.

[103] That said, on the evidence before me, I am satisfied there was considerable evidence of opportunity, which of course is just one piece of circumstantial evidence, from the testimony of the complainant, her mother, and the accused.

[104] While the accused denied that they ever laid in bed with their daughter while at their first Penny Lane residence, they did acknowledge that there were times when they were alone with H.H. In the same vein, the complainant’s mother testified that while they were at the first Penny Lane home, the accused was alone with her daughter every day that she went to work. The mother’s evidence was that when she worked – at Walmart’s, on irregular part-time shifts, anytime from 7:00 a.m. to 10:00 p.m. - the accused would watch the children. Contrary to the attempts of the accused to say that they were not significantly involved with caring for the children, the evidence of the mother was that the accused was responsible for childcare while she was at work. I accept the evidence of the mother in this regard.

[105] Further, the complainant’s mother testified that during the period when her family was residing at her friend Courtney’s house at their second Penny Lane address, on some occasions when she could not find the accused at first, she would eventually find M.T either in her daughter’s bed or in Courtney’s daughter’s bed with her. The evidence of C.H. was that while at Courtney’s home, her daughter and Courtney’s daughter shared a bedroom, and her daughter had the top bunk. The mother was asked how she knew this, and she replied because “I’d go looking for him, trying to find him, and that’s where I’d find him.” The mother said that she never thought too much of it because she thought that the complainant was telling the accused about her day at school or what was going on with a friend. The accused did not contest the mother’s evidence in their subsequent testimony. And the mother was not cross-examined on this point or at all.

[106] C.H. was asked about the incident alleged to have occurred on Cassie Crescent, and she said she found him in her daughter’s bed in the middle of the night. The mother explained that she had gone to bed, and the accused was asleep on the couch, and she then woke up and did not know where he was, thought that maybe he had left the residence but his keys were still there, and so she went looking for him. As C.H. said, it was a really small apartment, and she found him in her daughter’s bedroom. C.H. said it was the middle of the night and her daughter should have been sleeping, but she found the accused in her bed, with the blankets covering them, and “it didn’t feel right to me, so … asked him what he was doing, and I don’t remember what he said to me.”

[107] The evidence of the mother was that this was in 2020, shortly after she moved into the Cassie Crescent residence. I note that is consistent with the complainant’s best recollection that the last incident happened in either April or May of 2020, before her birthday on May 7th.

[108] The complainant’s mother was then asked whether there were any other incidents of that nature, and she replied in the negative, stating “because I tended to stay up later to make sure that he was where he was supposed to be.”

[109] The evidence of the complainant’s mother was not challenged at all because defence counsel did not conduct any cross-examination of the mother.

[110] In closing submissions, the defence made a number of suggestions as to why this court should not accept the evidence of the complainant.

[111] One of the defence suggestions centres on the messages that were exchanged by the complainant and her best friend, J.D., on May 19, 2021, over the Discord instant messaging app.

[112] The complainant testified that her messages to J.D. were the first time she disclosed the incidents to anyone else. Generally speaking, her evidence was to the effect that she was reluctant to make disclosure to even J.D., who, on her uncontested evidence, was her best friend.

[113] In the course of her messages with J.D. that day, the complainant texted that:

a. “Nobody actually knows abt [about] this bc [because] ik [I know] that nobody would believe me” …

b. “Yeah i [I] jsut [just] wrote it all out but deleted it bc idk [I don’t know] if im [I’m] ready to tell anybody” …

c. “Uh – anyways – what happened to me was kind of the same thing –” …

d. “Except my mom woke up and came into my room and it looked like he was just laying down with me so he got up and left”

e. “Well, besides the fact that it happened multiple times”

f. “Yeah – I actually stay up late now bc im afraid something will happen”

g. “And – please [don’t] tell anybody [I’m] saying this – [I’m] not ready for ppl [people] to know”

[114] First of all, I am of the view that the messages from the complainant confirm the evidence she gave at trial that she was reluctant to tell anyone about what had happened to her – including even her best friend, J.D.

[115] Second, the defence suggests that in their exchange of messages that day, the complainant was “fishing” for J.D. to give her information. Respectfully, that suggestion is simply not borne out by a review of what was actually said by the complainant in her exchange with J.D. And in any event, even if it were true that the complainant was “fishing” for information from J.D. (which I do not accept), it is not clear to me how that actually assists the defence on the merits of the charges before the court.

[116] The defence also suggests that the exchange between the complainant and J.D. was a way for the complainant to really establish a close connection with J.D. I find no merit in this suggestion. First of all, the complainant had already established a very close connection with J.D. The complainant unequivocally considered J.D. to be her best friend. The screen-name for J.D. on the Discord app was “[H]’s_Bestie”. Moreover, when one reviews the entire text of the exchange between the complainant and J.D., it is clear that J.D. is far more explicit in the descriptions of what she says happened to her. In contrast, the complainant never really provides any details of the incidents in question. She does not respond in kind. As such, there was no apparent effort at “mimicking” by the complainant, as suggested by the defence. If there was merit to the defence suggestion that this was an exercise by the complainant to really connect with J.D., one would have thought that the complainant would respond to J.D. with chapter and verse of her allegations. But she gave no such details. Indeed, to my mind, J.D. and the complainant give qualitatively different responses. I am not persuaded by the defence suggestion.

[117] It was also suggested that the mother of the complainant put her daughter up to making these allegations against her former husband, but the problem – for the defence – is that the mother took the stand and gave testimony in court, but defence counsel never cross-examined the mother. And so, I do not think it lies in the mouth of the defence to suggest that the complainant’s mother put her daughter up to advancing false accusations against her ex-husband, when the defence had the mother on the stand but declined to cross-examine her – at all.

[118] Further, Ms. Cacciavillani suggested, in relation to the fifth incident, that in view of the complainant’s explanation of the positioning of her and the accused’s bodies and given further that the accused was said to reply to C.H. that they were just watching videos on the complainant’s cell phone, “it would have been clear to mom” that they were not watching anything on her daughter’s phone. Again, the difficulty I have with the defence submission, as I signalled to counsel in closing argument, is that the defence asked no questions of the mother in cross-examination. In the circumstances, again, I do not think it lies in the mouth of the defence to make submissions to the court as to what would have been clear to the mother.

[119] In short, I believe the complainant’s evidence of her interactions with the accused, and I accept her evidence as to what happened to her.

[120] I cannot, however, say the same for the evidence of the accused. Indeed, I have various concerns regarding the evidence and credibility of M.T.

[121] In contrast to the complainant, I cannot say that I found M.T to be careful in their testimony at trial. Indeed, I found the reverse was true. To be frank, my impression of M.T during my observation of them as a witness at trial is that they repeatedly demonstrated a marked carelessness with respect to the truth and routinely gave calculated and strategic responses. My sense was that in responding to questions, they appeared to strive to keep in the fore of their mind the answer that, they believed, would best suit their purposes.

[122] First, I note the evidence of the accused when it was put to them – expressly – that there were times when the accused entered the bedroom of the complainant and laid down with her in bed; and the accused answered, “sure, if she was awake, yes.”

[123] And then Crown counsel put to them that they did this “at all of the residences,” and they responded, “fair to say, yes.”

[124] And then Crown counsel repeated, “you laid with her in all of the residences,” and the accused answered, “sure.”

[125] But when Crown counsel then directly confronted them with their evidence-in-chief that it was impossible for them to lay in bed with the complainant at the first Penny Lane address, M.T then back-tracked on the evidence they had just given and said they could not have done that.

[126] In my view, this is not a minor internal inconsistency. The question was put to the accused three times, and three times they answered it clearly and without qualification. It was only when the accused was confronted with their contradictory evidence in chief that they gave what I consider to be a calculated and strategic answer.

[127] Further, as the evidence of the accused played out, there emerged a significant difference in their evidence in terms of how often the accused would lay with the complainant in her bed at the different residences. On the one hand, the accused tried to maintain that it was impossible for them to lay in bed with their step-daughter while they were at the first Penny Lane residence, but ultimately, as reviewed above, the accused did allow that they did lay in bed with H.H. at Courtney’s home on Penny Lane and at the Cassie Crescent residence, which was they last home at which they both resided together. Indeed, as referenced above, when asked why they would lay in bed with H.H., at one point the accused responded, “it’s a thing we did.”

[128] I juxtapose that testimony with the evidence of the accused about the comfort level of the complainant with the accused laying in bed with her. M.T was asked if their step-daughter ever said that it made her feel uncomfortable, and the accused said she never expressed feeling uncomfortable with it – “not even once.” But subsequently, as reviewed above, when M.T was questioned about how often it would happen that the accused laid in bed with their step-daughter, the answer was that “when she was younger more often. When she got older, it dwindled.” When asked why it dwindled, the accused replied that as the complainant was getting older, it was “not appropriate.”

[129] And yet that stands in stark contrast to the evidence that M.T gave at trial. At trial, M.T admitted to laying in bed with their step-daughter at their last two homes together. It’s a thing they did. But at the first home in Strathroy, when the complainant was younger, M.T maintains that it was impossible for them to lay in her bed. In my view, the evidence of the accused is internally inconsistent.

[130] In a related vein, the accused gave inconsistent evidence on whether they would enter the complainant’s bedroom at night if she were sleeping. Leaving aside the problem that it is not clear how the accused would know if the complainant was sleeping given the accused’s evidence at one point that her door would be completely closed if she was sleeping, in examination-in-chief, the accused testified that they would not enter H.H.’s room when she was sleeping; but in cross-examination, the accused indicated there were times they would check on her in her bedroom, and it was put to M.T that so there were times that they went into her bedroom when she was sleeping, and the accused replied, “sure.”

[131] In cross-examination, the accused was confronted with their statement to the police where M.T told D.C. Graham that the only thing they could think of as an explanation for why H.H. would make such allegations – that is, something that could have happened but was just taken the wrong way or misjudged – and M.T responded that, “the only thing I can think of is the one time I gave [H.H.] a hug.” Later on in their statement to the police, M.T repeated that the “only thing I can think of was the one time I hugged [H.H.] outside.” But even M.T recognized at trial that these statements to the police were incorrect; at trial, the accused said that they hugged the complainant “all the time.” At trial, M.T said that they did not know why they said that. In my view, these inconsistencies were a product of the accused’s desire to provide the police with a strategic answer that downplayed their involvement with the complainant.

[132] At trial, we saw other examples of strategic answers that the accused gave. In cross-examination, M.T was confronted with their statement to police that M.T believed the complainant was easily influenced and could be easily influenced into things. But when Crown counsel pressed the point, suggesting that the complainant was an “easy target” – that is, implicating M.T taking advantage of their step-daughter – the accused then walked it back and said that, no, H.H. was a person who can draw the line and she knows how to say no.

[133] In my view, another example of M.T giving strategic evidence was their attempt to portray themselves as a family-minded parent. In cross-examination at trial, the evidence of M.T was that family was always important to them, and “always has been.” I have some difficulty squaring that evidence with the fact, as admitted by the accused, that they have six biological children, all by different mothers; that they have no real relationship with any of the six children and do not “really know them”; and while married to the complainant’s mother, they engaged in a series of infidelities with five different partners. However, I appreciate the strategic value in trying to present oneself as a family-minded parent in a case such as this.

[134] The propensity of the accused to give strategic answers was so pronounced that it caused their evidence to mutate over time. For example, initially, the accused maintained that the complainant always sleeps with her bedroom door closed. But in the accused’s statement to the police, M.T said that there was “always a line of sight” into the complainant’s bedroom. When confronted in cross-examination, M.T then said that when they made that statement to the police, they were referring to the Cassie Crescent residence only. Then the accused said that there was always a line of sight into the complainant’s bedroom at the second Penny Lane address at Courtney’s home.

[135] Consistent with the accused’s propensity to give strategic answers, M.T often attempted to downplay their involvement in certain events. For example, while maintaining, on the one hand, that family is important to the accused and always has been, M.T also said that their interactions with C.H.’s children, including the complainant, were “limited at best.”

[136] In the same vein, I agree with Crown counsel that there were several instances where M.T was not particularly forthcoming with their evidence, and, at times, it seemed that it had to pulled from them. For example, as I have reviewed above, when initially asked if M.T was ever alone with the complainant, they initially replied “few and far between,” but then the accused went on in their testimony to eventually concede that they were alone with their step-daughter on numerous occasions.

[137] Using the same standard of scrutiny as applied to the evidence of the complainant, I am concerned about these features of the accused’s evidence, which causes me to conclude that the accused was not a credible witness. I well appreciate that many if not most of the aspects of the accused’s evidence as identified, if considered in isolation, might be regarded as relatively inconsequential. However, in my view, when viewed collectively and in the context of the totality of the evidence, they lead me to conclude that the accused’s evidence on the essential issues must be rejected.

[138] In these circumstances, I find that I cannot – and do not – believe M.T. I do not regard them as a credible witness. I do not accept their evidence, except where it is consistent with other evidence that I do accept. I do not accept their evidence that they never sexually assaulted the complainant or touched her inappropriately.

[139] As well, I am not left in a reasonable doubt by their evidence as to any element of the offences charged. Further, considering all of the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of M.T.

[140] For all of these reasons, I find that the Crown has proven beyond a reasonable doubt that M.T committed the offences of sexual interference and sexual assault of their step-daughter H.H.

Conclusion

[141] Accordingly, for the above reasons, after having reviewed all of the evidence in this case, I find M.T, also known as M.T, guilty of:

a. committing the offence of sexual interference with the under-aged complainant, H.H., contrary to s. 151 of the Criminal Code, as charged in Count 1 of the indictment; and

b. committing the offence of sexual assault upon the said H.H., contrary to s. 271 of the Code, as charged in Count 3 of the indictment.

[142] At the invitation of the Crown, the charge of sexual exploitation as set out in Count 2 of the indictment is dismissed.

Original signed by “J. Paul R. Howard” J. Paul R. Howard Justice

Delivered Orally: Tuesday, January 23, 2024

LONDON COURT FILE NO.: CR-23-0002-0000 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – M.T REASONS FOR JUDGMENT Howard J.

Delivered Orally: Tuesday, January 23, 2024

[1] I am advised by defence counsel that the accused prefers the pronouns “them/their” and the prefix “Mx.”

[2] Criminal Code, R.S.C. 1985, c. C-46.

[3] By my order made on September 11, 2023, on consent, pursuant to s. 486.2(1) of the Code, the complainant testified at trial by way of closed-circuit television.

[4] Exhibit no. 1 at trial is a DVD containing the video-recording of the complainant’s interview of June 17, 2021. Also entered on consent, Exhibit no. 2 is a written transcript of that same interview.

[5] The preliminary hearing was held on December 12, 2022. The complainant was 15 years of age at the time.

[6] Exhibit no. 3, being a copy of the messages between the complainant and J.D. on Discord dated May 19, 2021, at p. 3.

[7] The evidence of the complainant in chief was that she did not tell anyone about the incidents initially because she “was scared no one would believe me”; she was scared that the accused might do something, like, “yell at me or touch me again”; “so I just stayed quiet and didn’t say anything.”

[8] R v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at pp. 336-337 [cited to S.C.R.].

[9] R. v. Nyznik, 2017 ONSC 4392, [2017] O.J. No. 4138, 350 C.C.C. (3d) 335, 40 C.R. (7th) 241, at paras/ 6-7.

[10] R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 [cited to S.C.R.].

[11] Ibid. at pp. 757-758.

[12] R. v. Thomas, 2012 ONSC 6653 (S.C.J.), at paras. 23-24.

[13] R. v. D.(B.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.

[14] R. v. T.A., 2020 ONCA 783, at paras. 26, 31, and 38. And see R. v. R.P., 2020 ONCA 637, citing R. v. Nyznik, at para. 14 per Molloy J.

[15] R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, 459 D.L.R. (4th) 375, at para. 82, citing R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.

[16] See Criminal Code, s. 274.

[17] R. v. B.(R.T.), 2009 ONCA 177, 95 O.R. (3d) 21, 243 C.C.C. (3d) 158, at para. 19.

[18] R. v. B.(G.), [1990] 2 S.C.R. 30, 86 Sask. R. 111, 56 C.C.C. (3d) 200 [cited to S.C.R.].

[19] R. v. W.(R.), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134 [cited to S.C.R.].

[20] Ibid. , at pp. 133-134, citing R. v. B.(G.), at pp. 54-55. [Citations omitted. Emphasis added.]

[21] R. v. A.A., 2023 ONCA 174, at para. 17, citing R. v. G.M.C., 2022 ONCA 2, at para. 38.

[22] R. v. C. (M.M.), 2014 ONCA 307, 308 C.C.C. (3d) 318, at para. 46.

[23] R. v. Lacombe, 2019 ONCA 938, [2019] O.J. No. 6023, at para. 45. See also R. v. Kiss, 2018 ONCA 184, [2018] O.J. No. 1011, at para. 101; and R. v. J.L., 2018 ONCA 756, 143 O.R. (3d) 170, 367 C.C.C. (3d) 249, at paras. 46-47.

[24] R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, 148 C.C.C. (3d) 41, at para. 65.

[25] R. v. Lacombe, at para. 42.

[26] R. v. K.S., 2018 ONSC 1988 (S.C.J.), at para. 49, affirmed 2019 ONCA 474.

[27] R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 75.

[28] R. v. G.F., at para. 25 per Karakatsanis J. See also R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 23-24.

[29] R. v. W.(R.), at 134h.