COURT FILE NO.: CRIM 339/23 (Brampton)

DATE: 20241115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

B.O.

Accused

Tara Mrejen, for the Crown

Maurice Mattis, for the Accused

HEARD: July 29-31, August 1-2, 7-9, and November 12, 2024

JUDGMENT

Contents

OVERVIEW... 2

ADMISSIBILITY OF EVIDENCE OF OTHER DISCREDITABLE CONDUCT. 6

SUMMARY OF COMPLAINANT’S EVIDENCE.. 9

SUMMARY OF ACCUSED’S EVIDENCE.. 10

ASSESSMENT OF COMPLAINANT’S RELIABILITY AND CREDIBILITY.. 12

ASSESSMENT OF ACCUSED’S RELIABLITY AND CREDIBILITY.. 21

ANALYSIS.. 32

Opportunity for the Offences to be Committed. 32

M.A.’s Delayed Disclosure. 38

M.A.’s Lack of Avoidant Behaviour 41

Motive to Lie. 45

M.A.’s Susceptibility to Manipulation. 46

M.I.’s Motive to Fabricate False Allegations Against Mr. O. 47

No Evidence of M.I.’s Manipulation of M.A. 50

Absence of Evidence from M.I. 51

CONCLUSIONS.. 52

VERDICTS.. 54

Justice c. petersen

OVERVIEW

[1] Mr. O. is charged with three offences: (i) sexual assault on his daughter, (ii) sexual interference with his daughter, and (iii) exposing his daughter to sexually explicit material for the purpose of facilitating the offence of sexual interference. I will refer to his daughter in this judgment as “M.A.” I will refer to the charges collectively as allegations of “sexual abuse.”

[2] Mr. O. denies the allegations and pleads not guilty to the charges.

[3] The offences are alleged to have occurred between January 1, 2018 and June 30, 2019. M.A. was 8 and 9 years old at the time. Her parents had separated in late November 2017. She was living with her mother and two brothers in the matrimonial home. She accuses her father of abusing her sexually during visits to his apartment.

[4] M.A.’s parents had previously separated from March 2017 to August 2017. During that period, M.A. and her two brothers lived with their father and paternal aunt in the matrimonial home. Their mother, M.I., had been charged criminally for biting Mr. O.’s forearm during an altercation in March 2017. Her bail conditions prohibited her from returning to the matrimonial home. She returned on one occasion shortly after her arrest and was charged with a breach of her conditions.

[5] During that first separation, on May 17, 2017, M.I. commenced a family law Application. Her specific claims are not in evidence, but parenting was an issue. She later abandoned the Application when the parties reconciled in August 2017. M.I. moved back into the matrimonial home. There is no evidence of how the criminal charges against her were resolved.

[6] Three months later, in late November 2017, Mr. O.’s sister and then Mr. O. moved out of the matrimonial home (within about one week of each other). He moved into a two-bedroom apartment. I heard conflicting testimony about whether his sister lived with him or lived in a different unit in the same building.

[7] Initially, M.I. would not allow the children to spend time with Mr. O. at his apartment, so he started visiting them at their school. He regularly signed the children out of school on lunch breaks and took them to a nearby park. At other times, he ate lunch with them in a conference room at the school.

[8] M.A. alleges that he periodically signed her out of school alone and brought her to his apartment over the lunch hour. She says that is when the exposure to pornography and sexual touching started. Mr. O. not only denies these criminal allegations, but he also denies ever being alone with M.A. in his apartment.

[9] Mr. O. commenced a family law Application on February 22, 2018. He sought an order for sole custody of the three children, as well as child support, equalization of net family properties, and an order for sale of the matrimonial home, which was owned by M.I. exclusively. M.I. filed an Answer to his Application on April 5, 2018. Her claims are not in evidence, but parenting was a contested issue.

[10] After attending a Case Conference on June 28, 2018, Mr. O. and M.I. agreed to a parenting plan that allowed the children to live with their mother in the matrimonial home and spend overnights at their father’s house every weekend. Mr. O. then abandoned his court Application.

[11] The children’s weekend visits to Mr. O.’s apartment started in July 2018. M.I. sometimes accompanied them for the visits, and sometimes they went without her. Mr. O. and M.A. gave conflicting testimony about how frequently M.I. was present.

[12] M.A. alleges that her father repeatedly sexually assaulted her when she was taking showers at his apartment on Sundays. Mr. O. denies this allegation. He also denies ever being in the bathroom of his apartment with M.A.

[13] The children’s weekend visits continued into the following school year, from September 2018 to May 2019. M.A. alleges that the sexual assaults in the shower also continued. Mr. O. was still volunteering at the children’s school, and he continued to see them occasionally over lunch breaks at the school, in addition to seeing them on weekends. M.A. does not allege that Mr. O. continued to sign her out of school alone during the 2018-2019 school year.

[14] In May 2019, M.I. decided that she would no longer permit the children to visit their father’s apartment. The weekend visits ceased, but Mr. O. continued to see the children on lunch breaks at their school.

[15] When the school year ended in June 2019, Mr. O. had no opportunity to spend time with his children, so he attended one of his son’s soccer games to see them. M.I. told him to leave and they argued at the soccer field. The argument continued at a Tim Horton’s restaurant after the soccer game. They parted ways and, a few days later, Mr. O. was charged by police for allegedly punching M.I. He was released on an undertaking, with conditions preventing him from contacting M.I. or being in her presence. His bail conditions also prevented him from seeing the children, unless a family court ordered otherwise, or he and M.I. agreed to a third party who would supervise his parenting time.

[16] Mr. O. started another family court Application in July 2019. There is no evidence of the specific relief sought, but parenting was, once again, a contentious issue in the litigation. The family court proceeding moved slowly. The parties attended court once in early 2020 and the judge appointed the Ontario Children’s Lawyer to conduct a parenting assessment. Regular court operations were then suspended in March 2020 due to the COVID-19 pandemic. This produced further delay in the proceeding.

[17] The criminal charge against Mr. O. was resolved with a peace bond in July 2020. The terms of the bond prohibited him from contacting M.I. for one year. They also prohibited him from seeing the children, unless a mutually agreeable third party supervised his parenting time.

[18] Mr. O. testified that, during the periods of his bail and of his peace bond, the only person that he could ask to perform the parenting supervision task was his sister R.H., but M.I. would not agree to her. He therefore did not see his children throughout that time.

[19] The peace bond expired in or about July 2021. At that point, Mr. O. had not seen or communicated with the children for two years. He revived the family law proceeding because M.I. was still resisting his request for parenting time. Through correspondence between their lawyers, they negotiated an agreement that Mr. O. would have parenting time at a supervised access centre. He paid an initial deposit to the centre on March 14, 2022.

[20] Shortly thereafter, M.I. terminated her lawyer’s retainer and advised Mr. O.’s lawyer that she wanted time to prepare the children to see him. Prior to the first scheduled visit at the supervised access centre, M.A. disclosed the allegations of sexual abuse to a Children’s Aid Society worker and to her family doctor, then to the police. Her statement to the police was video recorded on April 12, 2022. At trial, M.A. adopted the content of the video, and I admitted the recording into evidence pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46.

[21] Mr. O. was charged shortly thereafter. He was interviewed and gave a statement to the police on April 22, 2022.

[22] The supervised parenting time never took place. Apart from seeing M.A. testify at the preliminary inquiry in this case, Mr. O. has not seen his children since the argument with M.I. at the Tim Horton’s after the soccer game in July 2019.

ADMISSIBILITY OF EVIDENCE OF OTHER DISCREDITABLE CONDUCT

[23] During her police interview, M.A. was asked how things were in her home before her father moved out. She responded by stating that her father was not nice. She described him as controlling and abusive toward her, her brothers, and her mother. She said he would get triggered by the smallest things. If her mother made a mistake, her parents would argue, and her father would end up hurting her mother. If she (M.A.) made a mistake, he would yell and get violent with her. The officer asked her to explain what she meant by “violent.” She responded, “He would slap me, hit me, punch me, drag me by the hair.” She said her mother would try to stop him, but he kept going on. She said her brothers were also physically abused by her father.

[24] Although the video recording of M.A.’s police interview was admitted as evidence in the trial, the admissibility of these specific statements during the interview needs to be addressed separately. They constitute presumptively inadmissible evidence that the accused engaged in criminal conduct (i.e., domestic violence toward his wife and children) that is not the subject of the charges before the court. The Crown filed an Application to adduce this evidence of other discreditable conduct prior to the commencement of the trial, but the parties agreed that the issue would be argued during closing submissions at the end of the trial.

[25] Evidence of other discreditable conduct is subject to a general exclusionary rule because of its inherently prejudicial nature. However, it can be admitted if the Crown establishes that it is relevant and material, and that its probative value outweighs its prejudicial effect: R. v. B.(L.) (1997), 35 OR (3d) 35, 102 OAC 104 (ONCA) and R. v. F.(D.S.) (1999), 43 OR (3d) 609, 169 DLR (4th) 639 (ONCA).

[26] Evidence is relevant if it has a tendency, as a matter of logic and human experience, to make a disputed fact slightly more or less probable through the application of everyday experience and common sense: R. v. Luciano, 2011 ONCA 89, at para. 204. Evidence is material if it is directed at a fact in issue in a case.

[27] The evidence of the accused’s alleged family violence is relevant and material to three issues in this case. First, the evidence of Mr. O.’s prior physical abuse of M.A., if accepted, helps to establish a contextual narrative within which the sexual abuse is alleged to have taken place. The true nature of the father-daughter relationship is a material issue because it enables the court to evaluate the complainant’s testimony fairly. Without the evidence of the accused’s alleged other physically abusive conduct toward M.A., the court could be left with an incomplete and possibly misleading impression of their relationship.

[28] There is support in the jurisprudence for this finding. In several cases involving allegations of violence (including sexual violence) between persons who have an ongoing relationship, the Court of Appeal has approved the admission of evidence of other abusive conduct to assist the trier of fact in understanding the dynamics of the relationship and the context in which the charged violence allegedly occurred. See, for example, R. v. Craigg, [1986] O.J. No. 2123 (Ont. C.A.), at p.1; R. v. Dovak, [1989] O.J. No. 2499 (Ont. C.A.), at p.1, leave to appeal to S.C.C. refused, [1990] 1 S.C.R. vii; and F. (D.S.), at para. 23.

[29] The evidence of Mr. O.’s prior physical abuse of M.A. is also relevant to the issue of whether he had a motive to commit the charged offences. Motive is a form of circumstantial evidence which may, depending on the facts of the case, assist the court in deciding the material issues of whether the alleged criminal conduct happened, and whether it occurred with the requisite intent.

[30] In cases involving violent behaviour between non-strangers, courts have held that evidence of prior abusive conduct toward the complainant (or deceased victim) is admissible for the purpose of demonstrating the animus of the accused, which is relevant to the material issue of motive: F. (D.S.), at paras. 23-24; R. v. Summerbell, [1996] O.J. No. 795 (Ont. C.A.), at para. 2; R. v. MacDonald (1974), 20 CCC (2d) 144 (ON CA), at pp. 153-154; and R. v. Pheasant, [1995] O.J. no. 4962 (Ont. Gen. Div.), at para. 20. Such evidence is often admitted to demonstrate the accused’s jealousy or strong feelings of hostility toward the complainant. In this case, the evidence of prior physical abuse, if accepted, makes it more probable that the accused had a need or desire to control and dominate M.A.

[31] The evidence of physically abusive behaviour toward M.A., her brothers and her mother also provides important context in which to assess the credibility of M.A.’s explanation for why she did not disclose the alleged sexual abuse to anyone for approximately four years. M.A. stated that she kept her mouth shut because her father threatened to hurt her and her family if she told anyone. She said he threatened to make her regret it. Mr. O. denies making these threats. The evidence of prior domestic violence is not relevant to the issue of whether the threats were uttered. However, if I find that Mr. O. threatened M.A., then the evidence of domestic violence is relevant to the issue of whether M.A. would have taken his threats seriously and consequently remained silent about the sexual abuse.

[32] Having established that the disputed evidence is both relevant and material, the Crown must show that its probative value outweighs its prejudicial effect. Probative value refers to the degree of relevance to trial issues and the strength of the inference than can be drawn from the evidence: R. v. Robertson, [1987] 1 S.C.R. 918, 39 DLR (4th) 321 at para. 43. Prejudicial effect refers to the likelihood that the trier of fact will misuse the evidence in a manner that unfairly disadvantages the Defence. One of the recognized sources of potential unfair disadvantage is the operation of moral prejudice, meaning the risk that the evidence will stigmatize the accused as a “bad person” and cause the trier of fact to assess his guilt or innocence based on an inference of general propensity or disposition: R. v. Handy, 2002 SCC 56, at para. 100.

[33] The evidence of Mr. O.’s physical violence toward members of his family has considerable probative value with respect to the reason for M.A.’s delayed disclosure of the alleged sexual abuse. If I find that Mr. O. threatened M.A., then the evidence of his other discreditable conduct, if accepted, strongly tends to establish that M.A. had a reasonable fear that her father’s threats of violence toward her and her family were serious.

[34] The potential prejudice of admitting the disputed evidence is low in the circumstances of this case. The evidence of family violence, while serious, does not involve alleged conduct that is as egregious or more egregious than the child sexual abuse allegations that form the subject of the charges before the Court: Pheasant, at para. 19. The evidence of family violence does not engender the same level of moral outrage as the subject matter of the charges. It is not inflammatory and therefore poses only a minimal risk of moral prejudice.

[35] Furthermore, there is a low risk of inappropriate propensity reasoning if the evidence is admitted. As Crown counsel submitted, many physically abusive parents do not sexually abuse their children. Moreover, this trial is being conducted without a jury. As the trial judge, if I accept the evidence of family violence as credible, I will be mindful of the impropriety of inferring that Mr. O. is the type of person who would sexually abuse his daughter or is more likely to have sexually abused his daughter, simply because he physically abused her and other members of his family in the past.

[36] In summary, the probative value of the evidence of other discreditable conduct outweighs its prejudicial effect. It is therefore admissible for the limited purposes outlined above.

SUMMARY OF COMPLAINANT’S EVIDENCE

[37] M.A. alleges that the sexual abuse started after her father moved out of the family home. She says he picked her up from school once or twice a week, although sometimes less often. He signed her out of school and brought her to his apartment over the lunch break. There was no one else present when he brought her there.

[38] She says that he often played “nasty videos” on a computer or iPad and told her to watch the videos thoroughly. The videos involve naked adults kissing, mating, and making love. It made her uncomfortable. She told him she wasn’t allowed to watch because her mother told her not to, but he said her mother won’t find out. He told her she will soon like it. Sometimes he stayed with her to watch but sometimes he left the room. When he returned, he would question her about whether she watched the video, if it was good, and if she liked it.

[39] M.A. recalls that, during these lunchtime breaks from school, her father put makeup on her face, made her change her clothes into revealing dresses, and played music and made her dance for him. He sat her on his lap and hugged her tightly, which made her uncomfortable. He complimented her appearance. He told her that her bottom is big and that soon she will look much prettier. He touched her body inappropriately on her breasts over top of her clothes, on her buttocks and on the front of her thighs. A few times, he asked her to caress and rub his stomach and chest. After these visits to his apartment, he returned her to school.

[40] M.A. testified that, when she and her brothers started visiting their father on weekends, he regularly sexually assaulted her while she was showering. She said she locked the bathroom door, but he somehow managed to get in. He washed her body. She told him not to because she felt uncomfortable. She was old enough that she did not need help washing, but he got mad at her when she tried to wash herself. He yelled at her to move her hands. He caressed her body in a way she did not like. He touched her chest area and her vagina. She felt uncomfortable, and she told him to stop. He said he was just washing her. She told him she did not want him to wash her. Sometimes he just stood there and peeked through the shower curtains, which gave her chills.

SUMMARY OF ACCUSED’S EVIDENCE

[41] Mr. O. testified that he was always a very involved parent. Before the breakdown of his marriage, he worked days and his wife worked nights, so he was responsible for caring for the children in the evenings and in the morning before school. His eldest son, M.C., has an intellectual and developmental disability, and requires extensive care.

[42] Mr. O. stated that when he left the matrimonial home on November 25, 2017, he moved into a two-bedroom apartment with his sister. In December 2017, he started going to the children’s school to meet them on their lunch break. He continued doing so in January 2018. He called ahead to let the school office staff know that he would be picking them up. In February 2018, he started volunteering one or two days per week at the school, mostly in his eldest son M.C.’s class. He continued to sign his kids out of school over the lunch break on days when he was volunteering.

[43] Mr. O. testified that when he signed the children out of school, they ate lunch together, and went for walks on a trail in a nearby park. Sometimes M.C. had a doctor’s appointment and would not join them, but he never signed M.A. out of school alone. He always signed out at least two children, and usually all three. He did not bring M.A., or any of the children, to his apartment during lunch breaks.

[44] Mr. O. denies ever bringing M.A. to his apartment alone. He denies ever showing her pornography, putting makeup on her, dressing her in revealing dresses, making her dance for him, or touching her inappropriately.

[45] Mr. O. testified that, when the children started visiting him on weekends in July 2018, their mother almost always came with them. There was only one or possibly two occasions between July 2018 and May 2019 when M.I. did not accompany the children to his apartment for the weekend.

[46] During these family visits, his sister would sometimes go to a different unit in the apartment building to visit a friend. But on the one or two occasions when M.I. did not accompany the children for a weekend visit, his sister R.H. was present and helped him care for the children.

[47] His bedroom in the apartment was small, with just one bed, and the second bedroom was large. There were three beds in the larger bedroom for his children. When they slept over on weekends, his sister slept in the smaller bedroom and he and his ex-wife slept on the floor in the larger bedroom with the three children.

[48] Mr. O.’s eldest child, M.C., was unable to shower independently, so Mr. O. helped him shower. When the children visited his apartment on weekends, J.B. (the youngest child) and M.A. showered on their own while Mr. O. was busy doing other things. He never entered the bathroom when M.A. was in there. He never peeked at M.A. from behind the shower curtain while she was showering. He never touched or tried to wash her body while she was in the shower. He is not aware of any way that the bathroom door could be unlocked from the outside.

ASSESSMENT OF COMPLAINANT’S RELIABILITY AND CREDIBILITY

[49] M.A. was 8 and 9 years old at the time of the alleged offences. She was 12 years old when she was interviewed by the police. She was 15 years old when she testified in the trial.

[50] In evaluating the reliability and credibility of her evidence, I am mindful of the Supreme Court’s direction to apply a common sense approach to the assessment of the evidence of child witnesses: R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55; R. v. W.(R.), [1992] 2 S.C.R. 122, at p.133. As Hourigan, J.A. explained in his dissenting decision in R. v. D.F., 2023 ONCA 584, at para. 57 (which was later adopted by the Supreme Court at 2024 SCC 14):

This approach recognizes that children often experience the world differently than adults. For example, child sexual abuse victims may not remember details such as time and place, but that imprecision does not necessarily mean the child misconceived what happened to them and who did it. This direction reflects the reality that children cognitively process information differently than adults. When courts ignore the common sense approach for child witnesses, they fail to fulfill their duties to ensure a fair trial and do not give proper effect to children's evidence, rendering them voiceless.

[51] In this case, when M.A. told the police that her father signed her out of school and took her to his house, the officer asked if she remembered where his house was. She clarified that it was an apartment, but said she was not sure where it was. Her inability to remember the location of the residence where she claims that the sexual offences occurred is not surprising, given her young age at the time of the alleged incidents. She was not living in the apartment and did not go there every day. She was driven there in a car. She was not responsible for getting there on her own. When she visited, she would not necessarily have been paying attention to directions, or to the geography of the neighbourhood where her father lived. Her inability to identify the location of her father’s apartment does not, in the circumstances, detract from her credibility.

[52] There are numerous indicia of M.A.’s reliability and credibility as a witness. First, she demonstrated excellent recall of many relevant facts, despite her young age and the amount of time that elapsed between the dates of the alleged offences (January 2018 to June 2019), the date of her police interview (April 12, 2022), and the dates of her testimony at trial (July 29-31, 2024). Her recollection on several points was corroborated by independent evidence, sometimes by Mr. O.’s testimony.

[53] For example, when M.A. was interviewed by the police, the officer asked if she remembered the month and year when the sexual abuse started. She did not know the month or year, but she recalled that her father started signing her out of school over the lunch break after he moved out of the family residence. She said it was probably when she was in grade 3 or 4. The officer later asked if she remembered who her teacher was when her father was signing her out of school, and she responded that she thought it was “Miss S.” Her school report cards confirm that Miss S. was her teacher in grade 3 (and was not her teacher in grades 1, 2, 4 or 5.) The report cards also confirm that M.A. was enrolled in Miss S.’s class for the 2017-2018 school year, which is the year that Mr. O. moved out of the matrimonial home and started volunteering at the school.

[54] During M.A.’s testimony at trial, she was able to recall the configuration of her father’s apartment and details about the family room and the bathroom, where she alleges that the sexual abuse occurred. Her testimony regarding the number of bedrooms and their layout relative to the bathroom was consistent with Mr. O.’s evidence. Her testimony about the sleeping arrangements during weekend visits was also consistent with his evidence (i.e., that he would sleep in the same room with all three children). During her cross-examination, she remembered that the towels were usually kept in the bathroom, that the shower curtain was not transparent, and that the bathroom door locked from the inside by pushing the middle section of the doorknob. Mr. O. did not contest any of these facts; he specifically confirmed the nature of the locking mechanism on the bathroom doorknob.

[55] M.A.’s testimony that her father put makeup on her during school days between January and June 2018 is partially corroborated by the evidence of her treating physician, Dr. Luthra. He testified at trial and his clinical notes were marked as an exhibit. M.A. visited his office with her mother, M.I., on May 11, 2018. During that visit, M.I. relayed to him that she observed lipstick on M.A. and was told by M.A. that Mr. O. put makeup on her at his residence after picking her up from school alone, without her siblings. Dr. Luthra testified that he examined M.A. and observed glitter on her cheek and lipstick on her lips. He noted this observation in his file.

[56] M.I.’s out-of-court statements to Dr. Luthra are not admissible for the truth of their contents. I will address the limited purposes for which that evidence can be used later in this judgment. At this stage of my decision, I am focusing exclusively on Dr. Luthra’s testimony that he observed glitter and lipstick on M.A.’s face.

[57] The doctor’s personal observation of makeup on M.A. is direct evidence of the fact that M.A. had some glitter on her cheek and lipstick on her lips on the afternoon of a school day in mid May 2018. Dr. Luthra’s evidence is therefore partially corroborative of M.A.’s testimony. It is only partially corroborative because it does not assist the court in determining who applied the makeup, or when or where it was applied.

[58] During M.A.’s interview with the police (on April 12, 2022), the officer asked her whether her mother knew in 2018 that she was going to her father’s apartment during school lunch breaks. M.A. recalled that her mother found out one day when she noticed makeup on her face and asked where it came from. She said she told her mother that her father applied the makeup but did not disclose the alleged sexual abuse to her mother. This evidence is corroborated by Dr. Luthra’s evidence regarding the visit to his office on May 11, 2018.

[59] Another indicator of M.A.’s credibility is her willingness to acknowledge things that she did not know or could not explain. For example, when she was asked how her father entered the bathroom while she was in the shower if the door was locked, she readily admitted that she has “no idea” how he managed to get inside. She said she did not hear him trying to break in. She also said that she does not know whether he had a key or did something to the lock because she did not see him do it. She explained that she was behind the shower curtain whenever he entered the bathroom.

[60] M.A. made other reasonable concessions during her testimony. For example, she told the police that her brothers were home in their room when her father entered the bathroom while she was showering. During her cross-examination at trial, she admitted (although she could not specifically recall) that she probably left the bedroom door open when she went to shower. She also admitted that her brothers might have been able to see the bathroom door from inside the bedroom, depending on where they were in the bedroom. She further acknowledged that she usually showered during daytime hours when her brothers were not sleeping.

[61] M.A. was not evasive during this line of questioning (or at any other time during her testimony). Her answers were candid and directly responsive to the questions asked, even though the facts she admitted are potentially helpful to the Defence argument that Mr. O. did not have an opportunity to commit the alleged offences without detection.

[62] Defence counsel argues that there are material inconsistencies in M.A.’s evidence. For the reasons that follow, I have concluded that most of the purported inconsistencies are reconcilable, and that any true inconsistencies are minor and inconsequential. They do not detract from the reliability or credibility of her evidence.

[63] Defence counsel alleges that M.A. contradicted herself about whether the bedroom door was open or closed when she showered at her father’s apartment. This issue is relevant because a closed bedroom door would have prevented her brothers from being able to observe her father entering the bathroom. This issue is peripheral to the core allegations of sexual abuse, but it is not inconsequential. An important element of Mr. O.’s defence is that he did not ever have an opportunity to sexually assault M.A. without detection because he was never alone with her.

[64] During her cross-examination at trial, M.A. testified that she could not remember if the bedroom door was open or closed when she showered. At the preliminary inquiry, she said the door was left wide open. She acknowledged making that prior statement. She explained, “When I answered this question [at the preliminary inquiry], I assumed it was open because, when I leave a room, I usually leave the door open. But I still don’t remember if I opened or closed it.”

[65] M.A.’s evidence on this point is not directly contradicted by her prior testimony at the preliminary inquiry. She did not assert at trial that the bedroom door was always (or usually) closed. Rather, she merely stated that she could not remember whether she left it open or closed. Her two statements are therefore reconcilable.

[66] Defence counsel argues that M.A. contradicted herself on the issue of whether she recalls happy times with her father. When she was interviewed by the police, she said, “overall, he didn’t give me any good memories.” At trial, she adopted this prior statement and reaffirmed that she did not have any good memories of him, even from before he moved out of the family residence. She was then shown photographs of seemingly happy family outings and copies of birthday greetings and Father’s Day greetings that she wrote to him. She was challenged on her categorical statement that she did not have any good memories. She acknowledged that she had developed some good memories with him, but she nevertheless insisted that she was being truthful in her statement to the police. She explained that “since the bad memories block out the good memories,” she no longer considers the earlier memories to be good. This is a compelling explanation that reconciles the superficial inconsistency in her statements about how she remembers her relationship with her father.

[67] The next purported inconsistency in M.A.’s evidence relates to the issue of who was present during the weekend visits to her father’s apartment that started in July 2018. At trial, M.A. consistently stated that she and her two brothers went to their father’s apartment together on weekends. Defence counsel submits that M.A. gave a very different account to the police, initially telling the officer that her father brought her to the apartment alone on weekends, then later saying that her brothers would sometimes accompany her on weekends. For the reasons set out below, I have concluded that this is not an accurate characterization of M.A.’s statements to the police.

[68] After detailing her allegations of what occurred during the lunch hour visits at her father’s apartment, M.A. told the officer, “There was also every Sundays that he would take me to his house, because he was allowed at that time.” She then relayed to him particulars of her allegations of sexual assault in the shower. At trial, Defence counsel read this prior evidence back to her, stressing the word “me.” He suggested that she told the officer she went alone to her father’s apartment on weekends, without her brothers. M.A. said that’s not what she meant. She explained, “I meant that during that time, he did take me to his house, but I forgot to specify that he did also take my siblings.”

[69] There is ambiguity in M.A.’s statement to police about who was present on Sundays, but viewed in the context of the flow of the conversation with the officer, I accept her explanation as sincere and credible. She had been speaking about the lunchtime visits that occurred during a period when her father had no parenting time with the children. She then shifted to a different period, when he had regular parenting time on weekends, and she started to describe the shower sexual assaults that occurred after the parenting arrangements changed. She was focused on relaying details of what her father did to her, so she was speaking about herself, and not about her siblings. She did not intend to mislead the police by implying that her siblings were not present during weekend visits. She simply did not mention her brothers.

[70] Defence counsel also put to her another statement that she made a bit later in the police interview, when the officer asked her directly whether she and her brothers would go to their father’s apartment together on Sundays, or whether she went alone. The transcript of her police interview reflects that she responded as follows: “Some days, it had to be my brothers too because he was supposed to take my siblings too.” During her cross-examination, M.A. was shown the relevant portion of the transcript and she confirmed that she said those words to the police. Defence counsel then suggested that she implied there were some days when her father took her and her brothers on weekends, but some days he took her alone. M.A. responded, “That’s not correct.” Defence counsel then asked her what she meant when she said “some days” her father had to take her brothers too. She responded that some days her mom would go along with them, but her father would always take her and her siblings “because he had to take us every Saturdays and Sundays to his house.” Defence counsel then asked M.A. why she did not say to the officer that her father took her and her brothers all the time. M.A. responded that when she is under pressure, or feels nervous or anxious, she tends not to say the right thing.

[71] In closing submissions, Defence counsel argued that there is a material inconsistency in the complainant’s evidence on this point, which undermines her credibility. Crown counsel submitted that the inconsistency is insignificant because the complainant simply misspoke when interviewed by the police but was otherwise consistent in her testimony that she and her brothers visited her father’s apartment together on weekends.

[72] After the conclusion of the trial, I reviewed the video recording of M.A.’s police interview, which forms part of her evidence-in-chief. When I listened to the relevant portion of the recording, I heard the complainant say “Sundays”, rather than “Some days,” which significantly alters the meaning of her statement and eliminates any inconsistency in her evidence. I notified counsel that there might be an error in the transcript of her police interview, and I reconveyed Court. We listed to the relevant portion of the video recording together in court, and I heard submissions on the issue.

[73] I should note that M.A. was wearing a face mask during the police interview, so her lips are not visible on the video recording, but her voice is clear and not muffled.

[74] I have listened to the recording repeatedly and have concluded that M.A. told the officer, “Sundays, it had to be my brothers too, because he was supposed to take my siblings too.” The transcript is incorrect.

[75] I arrive at this conclusion for two reasons. First and foremost, the video recording (not the transcript) constitutes the evidence. To my ear, when I play the video, I clearly hear the complainant say “Sundays” and not “Some days.”

[76] Second, I note that the officer, who was seated directly across from M.A. in the interview room, appears to have heard her say “Sundays” and not “Some days”, because the interview proceeds on a shared understanding that her brothers were present during the weekend visits. The officer does not ask any follow-up questions about which days or how many days she went alone versus days when she went with her brothers. Rather, he refers to “the three of you guys” going to Mr. O.’s residence on “a typical Sunday” and asks, “What would happen once you guys were there?” M.A. responds, “my siblings stayed in their rooms, and then when I had to go take a shower, he would come in.” At no time does M.A. suggest that she was ever in the shower at her father’s house when her brothers were not present.

[77] I recognize that M.A. did not identify an error in the transcript when it was shown to her during her cross-examination. In fact, she agreed that she said the words reflected in the transcript to the police (i.e., “Some days it had to be my brothers too…”). However, she also testified that the statement was incorrect. She disagreed with the content of what was attributed to her in the transcript and surmised that she must have misspoken because she was feeling anxious during the police interview.

[78] M.A. did not have the benefit of hearing the audio recording when she was asked whether she made the statement to the police. The video had been played for her two days earlier, during a blended voir dire to hear the Crown’s s. 715.1 Application, but the relevant portion of the video was not replayed during her cross-examination. In the circumstances, she cannot be expected to remember precisely what she said to the officer, and it would be reasonable for her to assume that the official transcript accurately reflected her words, even though she disagreed with what it said. In the circumstances, I find that her words were not accurately transcribed. She told the officer, “Sundays it had to be my brothers too.”

[79] After court was reconvened, Defence counsel ultimately conceded the error in the transcript. However, he maintained that there was an inconsistency in M.A.’s evidence because she did not mention her brothers’ participation in the weekend visits until the officer asked her specifically whether they also went on Sundays. I have already addressed this issue above. I find that there was ambiguity but not inconsistency on this point. The ambiguity was resolved as soon as the officer asked the clarifying question.

[80] Finally, Defence counsel argues that M.A. gave inconsistent testimony regarding the clothes she claims her father made her wear when he brought her to his apartment during school lunch breaks. The first time she mentioned this during her police interview, she said, “When we went to his house, … he would change my clothes into a dress.” This statement is open to two different interpretations: (i) that her father would change her clothes into the same dress every visit, and (ii) that he would change her clothes into a different dress on each visit. This lack of clarity amounts to ambiguity in her evidence, but it does not constitute an internal contradiction that diminishes her credibility. There is no indication that her ambiguity on this issue was the product of deliberate evasiveness.

[81] Later in the police interview, M.A. gave inconsistent statements on the topic of whether her father made her wear only one dress or different dresses. The officer asked M.A., “What kind of dresses would he get you to wear?” She responded, “It was revealing dresses.” The officer then asked her to “describe it" and she said, “It’s like sleeveless. It’d be really revealing I guess you could see some of my chest. And it’d be a bit short too.” The officer asked, “Would it be like shorts or like a skirt?” M.A. gestured with her hands across the top of her thighs and said, “It would be like really short to here.” Then she added, “I don’t know that much, I can’t describe the dress.” The officer later asked whether “these pieces of clothing” were always at her dad’s house or whether she would take them home. She answered, “no, it was always at his place.”

[82] During this exchange, M.A. shifted between the plural (“dresses”) and the singular (“it”) in her description of the clothing, which does amount to an inconsistency. However, that shift was prompted by the phrasing of the officer’s questions, so it is not necessarily indicative of M.A.’s inability to keep her story straight, as suggested by Defence counsel. Drawing an adverse inference against the credibility of a 12-year-old in these circumstances would run afoul of the commonsense approach to assessing children’s evidence.

[83] During M.A.’s cross-examination at trial, she was asked to clarify whether she was claiming that her father dressed her up in the same dress or in different dresses on different occasions. She answered, “I think it was different dresses, but I don’t remember much.” Defence counsel showed her the transcript of her police interview and put to her that she described only one dress to the officer. She disagreed and noted that she mentioned “revealing dresses” during the interview. She said she was describing more than one dress to the officer, but the dresses were the same: “most of them sleeveless” and revealing her chest. She added, “it wasn’t too short but wasn’t what I would usually wear so I described it as short.” At that point in her testimony, she switched back and forth between the plural article “them” and the singular pronoun “it” without prompting by anyone.

[84] To the extent that there is an internal contradiction in M.A.’s evidence on this topic, it is trivial and does not detract from her overall credibility. It relates to a minor ancillary issue. M.A. never wavered in her assertion that her father made her change into more revealing clothes when he took her to his apartment over the lunch hour. Any lack of clarity or inconsistency in her evidence about the number of dresses he made her wear is immaterial.

[85] M.A.’s inability to describe in greater detail the clothing supplied by her father is not surprising given that four years had passed when she was interviewed by police, and more than six years had passed by the time she testified at trial. It makes sense that, at the age of 8, when the incidents allegedly occurred, what would have struck her most about the clothing (and what she would retain in her memory years later) is simply that it was more revealing than what she normally wore. A commonsense approach to her evidence dictates that the lack of detail on this specific issue does not detract from her overall credibility or reliability.

[86] Overall, M.A. demonstrated good recall of salient facts. She was unshaken on cross-examination. She did not waver on any of the core allegations of sexual abuse. Her account of the relevant events was coherent, cogent, and convincing.

SUMMARY OF ACCUSED’S EVIDENCE

[87] The Crown argues that Mr. O.’s testimony should be rejected in its entirety as not credible. Crown counsel submits that there are numerous unexplained inconsistencies between his testimony at trial and statements that he made to the police. She further submits that he refused to make reasonable concessions during cross-examination and embellished his evidence when confronted with uncomfortable facts, both of which are indicia of a lack of credibility. She also argues that his evidence on some points was implausible, and that he used elaborate stories to avoid answering difficult questions.

[88] I share some of these concerns about Mr. O.’s credibility, but I do not agree with the Crown’s submission that his evidence should be rejected in its entirety. As set out below, I accept some of his evidence and reject some of his evidence.

[89] In assessing any inconsistencies between Mr. O.’s testimony at trial and his statement to the police in April 2022, I am mindful that English is not his first language, and that he testified with the benefit of a Dari interpreter, whereas his police interview was conducted in English. Dari is a dialect of Farsi, a language that Mr. O. also speaks and understands.

[90] When a witness is interviewed in a language other than their native tongue, they may misunderstand the meaning of questions asked or overlook nuances in the questions due to a lack of fluency. Similarly, when the witness responds to questions in a language other than their native tongue, they may fail to convey their meaning.

[91] Even if the witness’s comprehension is excellent and they can express themself reasonably well in the language of the interview, there is a risk that they will provide fewer details and less complete answers to questions than they would if they were speaking in their native tongue. Few bilingual (or multilingual) speakers have equal command of their languages. Words will sometimes escape the speaker when they are trying to express themself in their second (or third) language, especially if they are under stress -- such as in circumstances where they are being interviewed by the police for alleged sexual offences against their child. Bilingual individuals are not always able to communicate with the same degree of particularity that they can master when speaking their first language. A witness interviewed in their second language may therefore leave out certain details that they would otherwise include if the interview were being conducted in their native tongue. In addition to a potential shortage of vocabulary, it is not difficult to imagine how the cognitive effort required to participate in an interview in a second language could induce brevity in the interviewee’s answers. If the witness later testifies in their first language, it would not be surprising for their answers to be more expansive and detailed in court, given the ease with which they can express themselves with the aid of an interpreter.

[92] For these reasons, the court should be cautious not to automatically infer a lack of credibility from inconsistencies between earlier statements made in a witness’s second language and the witness’s testimony in their native tongue in court. The court should consider whether any inconsistency is instead attributable to a language barrier. This is an especially important consideration if the nature of the inconsistency is an omission in the prior statement relative to the testimony in court.

[93] Mr. O. was born in Afghanistan and immigrated to Canada in 2008. He learned to speak English when he was working at a United Nations office in Kabul. He did not formally study English in either Afghanistan or Canada but picked it up from his surrounding environments. He testified that, by the time he volunteered in his children’s school in 2018, his command of English was good enough that he was able to communicate with teachers and administrators in the school, but he was still hoping to improve. When he was interviewed by the police in April 2022, he was working part time for a delivery service, where he communicated with his manager in Farsi.

[94] When Mr. O. was interviewed by the police, he did not request a Farsi or Dari interpreter. He testified that he was shocked to learn of the charges against him and was feeling upset during the interview. He could not believe what was happening. He said he was trying to calm down and listen to the officer’s questions so that he understood what was being asked. Crown counsel asked him whether he made an effort to be as comprehensive as possible in his answers to the officer’s questions. He responded, “whatever I knew in English, I was telling him that.” He said he sometimes struggles with English vocabulary. When he speaks English, he somehow cannot explain or say things exactly the way he wants. There are words and idioms that he needs to use to be precise, but they do not immediately come to mind when he speaks English. I accept this evidence as both plausible and credible.

[95] During Mr. O.’s cross-examination, Crown counsel put to him several elements of his evidence in chief that he did not previously mention during his police interview. For example, Mr. O. testified at trial that his sister R.H. and his ex-wife M.I. did not get along. He explained that M.I. wanted R.H. to pay rent to them when she resided with them in the matrimonial home. He commented on the tension between the two women more than once during his examination-in-chief, in a variety of different contexts, including M.I. not agreeing to allow R.H. to supervise his parenting time after they separated. However, he mentioned none of this to the police officer who interviewed him.

[96] Another example relates to Mr. O.’s testimony that the reason M.I. terminated his weekend visits with the children in May 2019 is because he refused her demand that he pay for a family vacation. He also testified about the argument that ensued when he showed up at the soccer field to see the children. When he was interviewed by the police, he said the weekend parenting arrangement ended because of the criminal charges that were laid after the argument at the soccer field. He did not mention to the officer that, prior to attending the soccer field, M.I. had decided to terminate the weekend visits because he refused to take them on vacation.

[97] A third example raised by the Crown relates to Mr. O.’s testimony that he sometimes took only M.A. and his youngest son J.B. out of school for lunch because his older son M.C. had doctor’s appointments. Mr. O. neglected to mention this to the police. In fact, he told the police that he always signed all 3 of his children out of school.

[98] During his cross-examination, Crown counsel suggested to Mr. O. that he omitted these details when he spoke to the police because they are not true. She accused him of fabricating new details to make himself appear more balanced and believable at trial, and to bolster his defence, which includes an argument that M.I. is controlling and manipulated M.A. into fabricating false allegations of sexual abuse. Mr. O. denied these accusations.

[99] I do not believe that these inconsistencies between Mr. O.’s statement to the police and his testimony at trial reflect poorly on his credibility. They are more in the nature of omissions than contradictions, and there are several plausible reasons why he may have omitted certain facts during his police interview: (i) he was not specifically asked certain questions that were later put to him during his examination in court; (ii) he was speaking to the officer in English without the benefit of an interpreter; and (iii) he was shocked by the charges against him and was not thinking of every relevant detail at the time of the interview.

[100] Moreover, regardless of the language issue, I am mindful of the need to tread carefully when drawing adverse credibility inferences from omissions in an accused person’s statement to police, given that every accused has the constitutional right to remain silent: R. v. A.G., 2015 ONCA 159, at para. 30; Kiss, at paras. 46-49. In my view, the above-noted omissions in Mr. O.’s police statement are not sufficiently material to treat them as deficiencies in his credibility.

[101] Mr. O. was cross-examined on the answers he gave to a series of questions by the police about whether he ever washed M.A. or helped her shower. Mr. O. responded to the officer’s questions using the third person pronoun “they,” which leaves the impression that he was speaking about all three children. If in fact he was referring to the three children, then his answers during the police interview would directly contradict the testimony he gave at trial. However, Mr. O. explained that he understood the officer’s questions to be about M.A. and he was answering with respect to her, but sometimes he makes mistakes with singular and plural pronouns in English. Upon review of the relevant portion of the transcript, I am satisfied by Mr. O.’s explanation that a combination of stress and limited English proficiency contributed to the appearance of an internal contradiction in his evidence, when in fact his statements on this issue were not contradictory.

[102] Crown counsel submits that Mr. O. gave elaborate and non-responsive answers to uncomfortable questions both during his police interview and at trial. She argues that the court should interpret this as a symptom of him lying. For example, when he was asked by the officer if he ever brought M.A. to his apartment during the school lunch break or after school, he said no, then provided a long explanation. He stated that his ex-wife M.I. would not allow him to bring the kids to his apartment after school; that he did not need to take M.A. to his apartment because he was able to spend time with her at school; that he did not have enough time to bring M.A. home during the lunch break because it was only 35 minutes long; and that he did not want to take M.A. away from her studies.

[103] Mr. O. agreed with Crown counsel that the officer did not ask him why he did not bring M.A. home from school, but rather simply whether he ever brought her home. However, he denied Crown counsel’s suggestion that he provided an unnecessarily elaborate answer because he really wanted to hide the fact that he did take M.A. home for lunch.

[104] Given the seriousness of the charges he is facing, I am not troubled by the somewhat defensive and elaborate way that he answered the officer’s question about taking M.A. home from school. He cannot be faulted for trying to supply the police with as much exculpatory information as possible, even if it was not explicitly solicited by the officer. I draw no negative inference against his credibility based on this exchange.

[105] There are, however, several other aspects of Mr. O.’s evidence that detract from his credibility. The most significant are notable inconsistencies between his testimony at trial and the statements that he made to the police about whether his sister R.H. was living with him in 2018 and 2019, when the offences are alleged to have been committed in his apartment.

[106] During his examination-in-chief at trial, Mr. O. testified that he lived with R.H. in his rented apartment after he separated from M.I. in late November 2017. He said they lived together until he moved from that apartment in Brampton to Etobicoke. He later testified that he moved to Etobicoke in 2021. He also stated that R.H. did not work outside the home because of her immigration status.

[107] Mr. O. testified that R.H. was always present in the apartment to help him care for the children on the rare occasions when M.I. did not accompany them for weekend visits. He said R.H. would sometimes leave the apartment during the day if M.I. was there, because they did not get along. However, he asserted that R.H. would return to the apartment to sleep because she lived there.

[108] This evidence is relevant to Mr. O.’s defence. If R.H. lived with him from January to June 2018, and did not work outside the home, it would have been risky (if not impossible) for him to bring M.A. home regularly during the lunch hour and commit the alleged offences without his sister knowing what was happening. Similarly, if R.H. lived with him from July 2018 to May 2019, and was present in the apartment whenever M.I. did not participate in weekend visits, it would have been difficult for him to sexually assault M.A. in the shower without R.H. at least noticing that he was in the bathroom with her. Consequently, if I accept Mr. O.’s testimony about the living arrangements, the circumstances could give rise to reasonable doubt about whether there were opportunities for the offences to be committed. I have therefore carefully examined all the evidence on point to assess the credibility of Mr. O.’s testimony.

[109] R.H. was not called as a witness at trial. M.A. testified that R.H. was not present when her father brought her home from school during lunch breaks between January and June 2018. She said her aunt did not live there. She testified that her father told her that her aunt lived in a different unit in the same apartment building. Mr. O. did not specifically deny telling that to M.A. (To be fair, he was not asked about it.) M.A. recalled sometimes seeing her aunt when she and her siblings went for walks with their father at the park near their school, but she was adamant that her aunt was never present in her father’s apartment during the lunch time visits.

[110] M.A. testified that she sometimes saw her aunt at the apartment during weekend visits with her siblings. She acknowledges the possibility that her aunt may have slept in one of the bedrooms in the apartment during one of their weekend stays, but she does not remember that happening. M.A. asserted categorically that her aunt was not living there in 2018 and 2019.

[111] I reject M.O.’s testimony on this issue because it is contradicted by prior inconsistent statements he made to police, and by a shift in his evidence during his cross-examination. At one point during the police interview, the officer asked him if the children had their own room. Mr. O. sought clarification of whether the officer was referring to the family home or his apartment. The officer specified the apartment, and asked, “where would they stay when they would come visit you there? Let’s say for the weekend or a couple days?” Mr. O. responded, “No, no I didn’t bring it for the couple days because that time my sister was there. And one room for my sister was.”

[112] It is clear from this exchange that Mr. O. was conveying to the officer that there were no overnight stays because there was no space for the children to sleep in the apartment with his sister occupying the second bedroom. This directly contradicts the evidence he gave at trial, as well as M.A.’s testimony; they both testified that the three children routinely stayed overnight at his apartment on weekends between July 2018 to May 2019. At trial, Mr. O. described sleeping arrangements that accommodated his sister, M.I., and all three children, as well as himself.

[113] When Mr. O. was cross-examined about this prior inconsistent statement, he denied meaning to convey that there were no overnight visits. He testified that he was trying to tell the officer that his children only stayed for the weekend but not for a longer time because his sister was living there with him. He denied the Crown’s suggestion that he lied to the police because he wanted to avoid admitting that he saw his children consistently for at least two days on weekends. He said, “I was just answering to what I was understanding of the questions. And to the extent that I could understand the questions, I did reply.”

[114] Based on my review of the relevant portion of the transcript, I do not believe that Mr. O. misunderstood the officer’s question due to a language barrier. He asked the officer to clarify the question before answering it. His answer was responsive to the question and clear. In this instance, I believe that Mr. O. is using language proficiency as a pretext to try to escape responsibility for a lie that he told to the police.

[115] Notably, Mr. O. also contradicted himself on the issue of how long his sister lived with him. In the early stages of his police interview, he was asked some basic questions to obtain biographical information. He briefly outlined the history of how he met his ex-wife and provided the address where they resided during the marriage. He said he moved to an apartment in Brampton when they separated, and he provided that address as well. The officer asked who he lived with in the apartment. He responded, “just for a couple months my sister live with me.”

[116] Crown counsel cross-examined Mr. O. about the inconsistency between his testimony that R.H. lived with him until he moved to Etobicoke in 2021 and his statement to the police that she just lived with him for “a couple months” after he separated from his wife in November 2017. Mr. O. responded by asserting that, to his understanding, “a couple months” could mean 2 months or 9 months or almost a year. He then added, “She lived with me intermittently. She left then she came back.”

[117] Once again, I believe that Mr. O. is trying to use his limited English fluency as a pretext to cover up a material inconsistency between what he told the police and what he stated at trial. I do not find it credible that he does not (or did not in April 2022) know the meaning of the expression “a couple” because he used the expression appropriately at other times during the police interview. Moreover, he prefaced his answer to the officer with the word “just” (“just for a couple months”), which suggests that he was intentionally conveying to the officer that his sister did not live with him for long. It is unlikely that he would have used the word “just” if he was intending to convey that she lived there for 9-12 months.

[118] Furthermore, even if I accepted Mr. O.’s explanation that, to his mind, “a couple” could mean 9 months or almost a year, that is still materially inconsistent with his testimony at trial that his sister lived with him from the end of November 2017 until he moved to Etobicoke in 2021. I believe that Mr. O. lied when he gave that evidence during the trial, then tried to mask the lie by stating (for the first time, during cross-examination) that his sister lived with him intermittently throughout that time. I conclude that is also a lie.

[119] R.H. may have lived with Mr. O. in the apartment for a brief period in December 2017 and early January 2018 (as Mr. O. told the police), but I accept as credible M.A.’s evidence that R.H. did not reside in the apartment with Mr. O. by the time he started bringing her home for lunchtime visits. I conclude that Mr. O. intentionally misled the court on this issue because he wants the court to believe that there would not have been an opportunity for him to commit the alleged offences in an apartment that he shared with his stay-at-home sister. This deliberate lie significantly detracts from his overall credibility.

[120] There are three other aspects of Mr. O.’s evidence that undermine his credibility. They involve further inconsistencies between what he told the police and what he stated at trial.

[121] Mr. O. testified during the trial that his son M.C. is not able to shower himself independently because of his disability. He stated that he would bathe M.C. when the children visited for the weekend. However, when he was interviewed by the police, he twice asserted that he never bathed any of his children. He said he helped M.C. with his diaper but did not bathe him.

[122] During his cross-examination, Mr. O. explained that the first time the officer asked him if he ever helped any of his kids bathe, they had just been discussing whether he ever washed M.A. or helped M.A. to wash herself in the bathroom. He said he answered “no” because he had in mind that they were still talking specifically about M.A. and he did not pay close attention to the phrasing of the officer’s question, which shifted the discussion from M.A. to all three kids. Upon review of the interview transcript, I find this this explanation to be plausible.

[123] However, the second time that the officer raised this topic during the interview, the context was different, and the meaning of the question was clear. They had been discussing the conditions of Mr. O.’s peace bond. The officer changed the subject and returned to the topic of bathing the children. He asked Mr. O., “So, you’ve never given your daughter or your kids any baths?” Mr. O. responded, “no.” Even with a language barrier, it would be difficult to mistake the officer’s disjunctive question for an inquiry about M.A. only. I believe that Mr. O. understood the question but answered it inaccurately with a categorial “no” instead of acknowledging that he regularly bathed M.C. It is likely that he did so because of the particulars of the allegations against him and his desire to distance himself from any suggestion that he touched any of his children in the shower.

[124] Similarly, when the officer asked Mr. O. if he ever washed M.A., he said no “because they don’t have time to wash” and added that they are with their mother all week so “they don’t need to wash them.” I accept Mr. O.’s evidence that he was speaking about M.A. at this point in the interview despite incorrectly using the plural pronoun “they.” I make allowance for that language issue. However, he was clearly conveying to the officer that M.A. did not shower at his apartment because she did not have time to do so. He was also conveying that she did not need to do so because she showered at her mother’s house during the week. This is directly contradicted by the testimony he gave at trial.

[125] At trial, Mr. O. recalled times during the children’s weekend visits when he would tell M.A. to take a shower, or he would see her exit the bathroom and she would tell him she had taken a shower. He said this happened “all the time.” I infer that he concealed this information from the police during his interview because he wanted to convey that there would have been no opportunity for him to sexually assault M.A. in the shower at his apartment.

[126] I recognize that Mr. O. did not waver in his denial of the criminal accusations against him. The above-noted inconsistencies in his statements do not pertain to the core allegations against him. But they constitute intentional lies, either to the police or to the court, which makes them damaging to his overall credibility.

[127] Mr. O.’s credibility is further undermined by his unwillingness to make reasonable concessions during his cross-examination. Most notably, he refused to admit an obvious fact about the lock on the bathroom door in his apartment. He remembered that the doorknob had a push-button locking mechanism from the inside. He could not recall whether there was a hole on the outside. He denied having a metal rod or other device that could unlock the door from the outside. His evidence up to that point was not unreasonable, but he then refused to admit even the possibility that the lock could be opened from the outside. Although he could not remember whether the doorknob had a hole on the outside, he insisted that it was not possible to unlock it from the outside.

[128] The above deficiencies in Mr. O.’s credibility significantly diminish his trustworthiness as a witness. I reject much of his exculpatory evidence on that basis. Stacked beside M.A.’s evidence, his testimony does not leave me with reasonable doubt about his guilt: R. v. D. (J.J.R.), 2024 ONSC 4253, at para. 53, leave to appeal ref’d, 2007 S.C.C.A. No. 16771; R. v. T.S., 2012 ONCA 289, at para. 79. However, the ultimate issue for me to determine is not simply whether I believe all, some or none of Mr. O.’s testimony but rather whether the evidence at trial, taken as a whole, leaves me with reasonable doubt about his guilt: R. v. W.(D.), [1991] 1 SCR 742.

ANALYSIS

Opportunity for the Offences to be Committed

[130] I have already made a finding that Mr. O.’s sister, R.H., was not living with him after January 2018. If he took M.A. to his apartment over the lunch hour on school days between February and June 2018, he would have had an opportunity to show her pornographic videos and touch her inappropriately because no one else was present.

[131] Defence counsel argues that there was not sufficient time for Mr. O. to sign M.A. out of school, drive her to his residence, play pornographic videos, apply makeup to her face, change her clothes, make her dance for him and sexually assault her, then wash the makeup off, change her clothes back, and return her to school. The school had two nutrition breaks, and each were 40 minutes long. The drive between Mr. O.’s apartment and the school took about 10 minutes each way. I agree that there would not likely be sufficient time to do all the above actions in the remaining 20 minutes of the break. However, M.A. did not allege that Mr. O. did all those things every time he brought her to his house. Sometimes he played pornographic videos. Sometimes he asked her to dance for him.

[132] Moreover, M.A. consistently stated that the lunchtime visits to her father’s apartment lasted longer than the lunch break. When she was interviewed by the police, after describing what her father did during the lunchtime visits to his apartment, the officer asked her how long it would last. She responded, “It will last an hour or two because I really can’t be that long in his house. I have to go back to school.”

[133] Given that M.A. was only 8 years old when the offences allegedly occurred, and that four years passed before she was interviewed by the police, I am mindful that her estimate of the duration of the alleged offences may not be reliable. Children’s sense of time is not always accurate. Furthermore, with the discomfort that she describes feeling, it is possible that the visits felt longer than they actually were. However, even if her time estimate may be wrong, her evidence is that she clearly remembers being away from school for longer than the lunch break.

[134] Defence counsel argues that school Attendance Reports disprove M.A.’s assertions that her father signed her out of school without her siblings, and that she missed class time because of extended lunch breaks at his apartment. She testified that this happened regularly during the second half of her grade 3 year. School Attendance Reports show that M.A. was late returning to class after lunch on only one afternoon (January 25, 2018) during that period. The Reports also show that her older brother M.C. was absent from school that day, and her younger brother J.B. was late that morning, but not late in the afternoon. In the Attendance Reports, this is the only date on which M.A. was noted to be late returning from lunch while her brothers were either away from school or on time.

[135] I agree with Defence counsel that these records do not show a pattern of M.A. being absent from school in the afternoons or arriving late to school in the afternoons while her brothers were punctual and in attendance. The records therefore do not confirm M.A.’s testimony.

[136] However, the records also do not contradict M.A.’s testimony. They do not capture all the relevant information and are therefore not reliable evidence, particularly with respect to student punctuality. I have reached this conclusion based on the testimony of the school’s current principal, Lisa Sarbadhikari, who was called as a witness by the Crown. She testified about the school board’s safe arrival system, sign in/out practices, and attendance record keeping. She described the attendance recording system as “imperfect.” Her evidence, in summary, is as follows.

[137] The Attendance Reports are generated by the school board’s Student Information System (SIS). Office staff input data into the SIS in accordance with information provided by classroom teachers. Attendance is taken by teachers in their classrooms twice daily, at 8:35 AM and at 1:15 PM. This practice has been in effect for years.

[138] There are two nutrition breaks during the school day, one from 10:35 AM to 11:15 AM and the other from 12:35 PM to 1:15 PM. Students must be signed out by a parent before they leave school premises, including at lunch time. The sign-out sheets are in a binder in the school office. Parents are also required to sign the student back in if they return during school hours. These rules and practices have been in effect for years.

[139] In 2018, classroom attendance was being taken manually. Teachers sent attendance folders to the office as soon as possible after classes started, usually within 10 minutes (i.e., by 8:45 AM and 1:25 PM). Office staff would then call the parents of any student who was noted absent from class, unless a parent had previously notified the school that the student would be absent or late.

[140] If a student arrived late to class in the morning or after a lunch break, but arrived before attendance was taken, the teacher was supposed to note “late” on the attendance sheet. However, Ms. Sarbadhikari testified that not every teacher does so consistently, especially in the primary grades. At times, a student’s tardiness would therefore not be entered into the SIS database by office staff.

[141] Ms. Sarbadhikari testified that the data input to the SIS is not an accurate record of student absence, attendance, and punctuality. She confirmed, for example, that if a student were signed out by a parent at the beginning of the 10:35 AM lunch break and signed back in 30 minutes late at 11:45 AM, that lateness would not be captured in the SIS database because the second attendance call is not done in classrooms until 1:15 PM. In those circumstances, only the sign-in/out sheets would capture information about the student’s tardiness. Ms. Sarbadhikari explained that the school board has no policy or practice of reconciling the sign-in/out sheets with the classroom attendance sheets or the SIS system.

[142] Ms. Sarbadhikari explained that the school board also has no record retention policy with respect to sign-in/out sheets, so each school has its own practice. She testified that, pursuant to a request from the police, a search was conducted for the sign-in/out sheets at M.A.’s school for the 2017/2018 school year and none was located.

[143] Based on the principal’s testimony, which I find to be credible and reliable, I conclude that there are at least two circumstances in which M.A. could have been signed out alone by her father on a regular basis over the lunch hour, for more than 40 minutes, without that information being captured in the SIS and without a safety call being made to M.I. First, Mr. O. could have signed M.A. out at the beginning of the first nutrition break at 10:35 AM and signed her back in later than 11:15 AM but before 1:15 PM. Second, Mr. O. could have signed M.A. out of class early, before the start of the second nutrition break at 12:35 PM and signed her back in on time at the end of that nutrition break at 1:15 PM. In either of these scenarios, M.A. would be present in class for both attendance calls and her missed class time would therefore not be captured in the SIS database and would not be reflected on her Attendance Reports.

[144] M.A. testified that her father always signed her out when he brought her to his apartment. She told the police this happened during her lunch break “or during class hours.” She said that twice at different points in the interview. She also said her father would always bring her back to school. As noted above, if Mr. O. signed M.A. out of school during class hours and returned her at the end of her lunch break, the missed class time would not be reflected in her Attendance Reports. The school records therefore neither confirm nor contradict her evidence on this point.

[145] When M.A. was cross-examined about her statement to the police, she said, “I didn’t mean he would take me during class hours, what I meant is that he would take me out at lunch and it would continue into class hours, so that’s why I had absences, it was going into class hours.” M.A. appears to misunderstand how the school’s attendance recording system works. As noted above, if Mr. O. signed M.A. out of school at the start of the first nutrition break and returned her to school late, but before the afternoon attendance call at 1:15 PM, that would not be reflected in her Attendance Reports.

[146] M.A. consistently asserted that the visits to her father’s apartment lasted longer than the lunch hour and caused her to miss class time. She only contradicted herself about whether she missed class time before or after the lunch break. When she was asked to explain this inconsistency, she said she was anxious during the police interview and must have misspoken when she told the officer her father signed her out during class time (i.e., before the start of the lunch break).

[147] I note that M.A. was shown her report cards during her examination-in-chief and was questioned about the number of absences noted on them. The report cards reflect an unusually high number of absences in grade 3 relative to grades 1, 2, 4 and 5. During closing submissions, Crown counsel argued that this information could have caused M.A. self-doubt about the accuracy of the statement she had given to police. M.A. may have deduced from the numerous absences on the grade 3 report card that she must have been wrong when she told the police her father signed her out of class before the lunch break, and that he must have returned her to school late after the afternoon attendance roll call instead. This is a plausible explanation for the change in M.A.’s evidence on this point, but it is entirely speculative.

[148] I do not consider this inconsistency in M.A.’s testimony to be a fatal or even serious flaw in her credibility or reliability because it is on a peripheral issue. She did not waver in the core allegations that her father signed her out of school without her siblings in the middle of the day, that she missed some class time because they went to his apartment for a longer period than the lunch break, and that he showed her pornography and touched her for a sexual purpose while in the apartment. Whether her father signed her out early before the lunch break started or returned her to school late after the lunch break ended is a peripheral issue of no consequence.

[149] The important point is that the school Attendance Records do not preclude the possibility that M.A. was regularly signed out of school for substantially longer than 40 minutes. The Records therefore do not foreclose the possibility that Mr. O. had time to commit the alleged offences at his apartment over the lunch break.

[150] I have considered that the school Attendance Reports reflect that all three children were signed out of school by a parent at 12:45 PM on May 11, 2018. The Reports do not indicate which parent signed the children out, but it must have been M.I. because it is undisputed that Mr. O. never took the three children out of school for an entire afternoon. Both Mr. O. and M.A. testified that he always returned them to school after lunch and signed them back in. The fact that M.I. removed them from school on May 11, 2018 is not proof that she (or M.A.) fabricated the story relayed to Dr. Luthra that same day, about Mr. O. bringing M.A. to his home and applying makeup to her face. M.A. could have gone to the apartment with her father over the first nutrition break and been returned to school long before her mother picked her and her siblings up at 12:45 PM.

[151] With respect to the allegations of sexual assault in the shower during weekend visits starting in July 2018, the Defence argues that Mr. O. would not have had an opportunity to commit the alleged criminal acts because M.A. was never alone with him on weekends. I am not persuaded by this argument for the following reasons.

[152] First, there were many opportunities for the alleged offences to be committed without an adult in the environment. M.A. testified that her mother did not routinely accompany her and her siblings on the weekends. She also testified that her aunt did not live in her father’s apartment and was rarely present when they visited on weekends. I accept this evidence as credible. For reasons explained earlier, I believe that Mr. O. exaggerated the frequency of M.I.’s presence on weekends and lied about his sister residing in the apartment to try to bolster his defence.

[153] Second, the presence of M.A.’s two brothers in the apartment does not foreclose the possibility that the offences could have been committed, nor does it reduce the likelihood that they were committed. M.A.’s eldest brother, M.C., has a developmental disability. J.B., her younger brother, was only 7 years old at the time. Given their lack of maturity, the boys could have noticed Mr. O. entering the washroom while M.A. was in the shower and not suspected that anything inappropriate was going on, particularly since Mr. O. routinely assisted M.C. with his showers. They also could have been preoccupied with games, screens, or other activities and not even noticed what was happening in the bathroom.

[154] In conclusion, the evidence with respect to opportunity does not raise reasonable doubt about the commission of the alleged offences.

M.A.’s Delayed Disclosure

[155] M.A. did not disclose her allegations of sexual abuse to anyone until April 2022, more than four years after the alleged incidents started, and almost three years after they ended. She did, however, make a partial disclosure of some related allegations to Dr. Luthra during a visit to his office on May 11, 2018.

[156] As noted earlier, Dr. Luthra observed makeup on M.A.’s face in his office that day. He recalled that M.I. told him she noticed makeup on M.A. and was told by M.A. that Mr. O. had picked her up from school without the other children and put makeup on her. Dr. Luthra recalled speaking directly to M.A., in her mother’s presence, and asking her what happened. His clinical notes record what M.A. told him about her father’s conduct that day. He testified that she told him it was her dad’s idea to put the makeup on. She said she watched YouTube in the bedroom at her father’s apartment while he was in the kitchen. She described how he put her on his lap, hugged her and kissed her on both cheeks. She said she watched YouTube again with him in the room, and then he washed her face. She told Dr. Luthra that she did not change her clothes or remove her clothes.

[157] The rule against hearsay prohibits me from relying on Dr. Luthra’s evidence about M.I.’s and M.A.’s out-of-court statements for the truth of their contents. In other words, I cannot rely on the doctor’s second-hand information about what was said to him outside of court as proof that, on May 11, 2018, M.I. observed lipstick on M.A., or as evidence that Mr. O. picked M.A. up from school without her siblings that day, brought her to his apartment, applied makeup to her face, sat her on his lap and hugged and kissed her on both cheeks.

[158] During her cross-examination at trial, M.A. confirmed that she said those things to Dr. Luthra during that visit to his office. To the extent that there are similarities between what M.A. told Dr. Luthra in May 2018 and what she later told the police about her father’s conduct, her prior statements to the doctor are not admissible to corroborate her evidence about what transpired at her father’s apartment. Prior consistent statements cannot be used to bolster the credibility of her allegations because the repetition of a statement does not make it more likely to be true: R. v. Dinardo, 2008 SCC 24, at para. 36.

[159] The evidence of what M.A. told Dr. Luthra on May 11, 2018 is, however, relevant and admissible for other limited purposes. First, it places the timing of her initial partial disclosure in the context of the concurrent family law proceeding between M.I. and Mr. O., which is relevant to the issue of whether M.A. had a motive to fabricate false allegations. This is discussed further below.

[160] Second, the evidence of what M.A. told Dr. Luthra is also admissible and relevant to the issue of recent fabrication, because it begs the question why she did not disclose the sexual abuse to her family physician when she had the opportunity to do so in May 2018. M.A. confirmed at trial that the alleged exposure to pornographic videos and inappropriate sexual touching in her father’s apartment started before that doctor’s visit. Therefore, her failure to mention those details to the doctor when he asked her about what happened at her father’s apartment calls for an explanation.

[161] Finally, the evidence of what M.A. told Dr. Luthra is admissible and relevant to the issue of her credibility, to the extent that it differs from what she accused her father of doing when she spoke to the police four years later. Her disclosure to Dr. Luthra included many of the ancillary allegations, but none of the particulars of alleged criminal conduct. For example, she told the doctor that she watched videos at her father’s apartment but did not say they were sexually explicit. She said he sat her on his lap and hugged and kissed her but did not say he touched her thighs, buttocks, and breast area. These discrepancies also call for an explanation. In other words, Dr. Luthra’s evidence about what M.A. told him in his office is admissible as a prior inconsistent statement that can be used to impeach M.A.’s credibility.

[162] In considering what, if any, inferences may be drawn from the evidence of M.A.’s delayed disclosure of the sexual abuse allegations, I am mindful of the caution and guidance provided by the Supreme Court of Canada in R. v. D.D., 2000 SCC 43, at para. 65:

[T]here 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.

See also, R. v. Lacombe, 2019 ONCA 938, at paras. 41–42, and R. v. Kruk, 2024 SCC 7, at para. 41.

[163] As noted earlier in this judgment, M.A. explained to the police that she kept silent about what her father was doing to her because he threatened to make her regret it if she told anyone. She said he threatened to harm her and her family. During her re-examination in the trial, she was specifically asked why she did not tell Dr. Luthra about the sexual abuse during the May 11, 2018 visit, at the same time as she disclosed some of his other conduct (e.g., bringing her home to his apartment alone, putting makeup on her face, making her sit in his lap). She responded, “I didn’t mention it because I just couldn’t get myself to open up.”

[164] Before evaluating the reasonableness of M.A.’s explanation for why she withheld information from the doctor and for why she did not disclose the alleged sexual abuse to anyone while it was happening or for three years after, I must first determine the credibility of her evidence about her father’s threats and physical violence.

[165] Mr. O. denies threatening M.A. in 2018, or at any time. He also denies physically abusing her, his other children, or his spouse at any time. The Defence adduced a video recording of an altercation that occurred inside the family home in March 2017, when Mr. O. returned to the house after the police had asked him to leave the night before due to a loud domestic disturbance. The video was shot on Mr. O.’s cell phone. It depicts M.I. biting his forearm, while two of the children scream and cry, and one of the boys tries to pull Mr. O.’s arm away from his mother’s mouth. Then the video shows Mr. O. slowly retreating and leaving the premises without saying anything, as M.I. shouts at him in a language other than English.

[166] This cell phone video does not undermine the credibility of M.A.’s allegation that Mr. O. was an abusive father and spouse. The video has no probative value except with respect to the events of that day. Moreover, it has limited value because it does not depict what transpired prior to the start of the recording on Mr. O.’s cell phone. It shows that Mr. O. remained calm on that occasion when his wife bit him. He knew that the event was being recorded at the time.

[167] I have previously outlined the reasons why I find M.A. to be a credible and reliable witness. I accept her evidence about her father’s threats and about his prior family violence. I reject Mr. O.’s testimony on these topics based, in part, on the deficiencies in his credibility (noted earlier in this judgment), but also based on my acceptance of M.A.’s evidence on point as coherent, consistent, and compelling.

[168] Having concluded that Mr. O. physically assaulted both his children and his wife in M.A.’s presence when he was residing in the matrimonial home and having accepted M.A.’s evidence that her father threatened to hurt her and her family if she told anyone what he was doing to her in his apartment, I find that M.A.’s delay in disclosing the alleged sexual abuse is satisfactorily explained. Her explanation is reasonable. She feared her father would act on his threats if she told anyone what he was doing to her. Her inability to “open up” to Dr. Luthra about the alleged sexual abuse is understandable and credible. Her incremental disclosure does not detract from the credibility of her allegations in these circumstances.

M.A.’s Lack of Avoidant Behaviour

[169] In sexual assault trials where the complainant and the accused have a pre-existing relationship, the parties often adduce evidence of the complainant’s avoidant behaviour or lack of avoidant behaviour. By avoidant behaviour, I mean steps taken by the complainant after the alleged sexual assault to avoid being in proximity to the accused, avoid being alone in his presence, avoid communicating with him, or otherwise alter her behaviour toward the accused to try to put some distance between herself and the alleged perpetrator.

[170] Trial judges must be cautious about drawing inferences from this type of evidence because it constitutes an error of law to assess the credibility of a complainant based on stereotypical views about how true victims of sexual assault would or should behave: R. v. A.B.A., 2019 ONCA 124, at para. 5. Victims of non-stranger sexual assault react and cope differently. Some will immediately withdraw from any further contact or communication with the perpetrator, others will continue to engage with the perpetrator as though nothing happened, and others will react somewhere in between these two extremes. There is no typical response against which a complainant’s reaction can be measured to assess her credibility. Consequently, a complainant’s failure to demonstrate avoidant behaviour “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse”: R. v. A.R.J.D., 2017 ABCA 237, at paras. 42-44, aff’d 2018 SCC 6, at para. 2.

[171] This does not mean that evidence of avoidant behaviour or evidence of lack of avoidant behaviour is always irrelevant or inadmissible. It simply means that certain inferences drawn from the evidence are impermissible because they rely on debunked stereotypes.

[172] In this case, I heard considerable evidence about M.A.’s attitude and behaviour toward her father after he allegedly started to abuse her sexually. Some of the evidence is disputed and some of it is uncontested.

[173] The disputed evidence pertains to birthday cards and Father’s Day cards that M.A. gave to him. M.A. acknowledged that she drew the pictures on the cards and wrote the messages inside them. Their authenticity and authorship are therefore not contested, but I heard contradictory evidence about the dates on which they were created. M.A. testified that she does not remember giving her father any cards after he moved out of the family residence in November 2017, so she believes all the cards were made before he left (i.e., before the sexual abuse allegedly started). Mr. O. testified that he received all but perhaps one of the cards after he left the family residence in November 2017 (i.e., throughout the period when the sexual abuse was allegedly happening).

[174] The cards themselves are undated. Upon review of their content, I have concluded that at least one must have been created after Mr. O. left the family home because it is for his 45th birthday, which occurred in January 2018. I have also concluded, on a balance of probabilities, that at least two of the cards were created before Mr. O. left the family home. One Father’s Day card contains a school photo of M.A. dated 2015/2016. It is unlikely that M.A. would have used such a dated photo on a card created in June 2018 or June 2019. In another Father’s Day card, M.A. wrote, “I love you because … you take care of me when I’m sick your home and moms at work.” This was likely written at a time when M.A.’s parents were cohabiting and working opposite shifts.

[175] It is impossible to discern from the content of the other cards when they were created. It seems likely that at least some of them date from before Mr. O. left the family home simply because there are so many cards. M.A. only had contact with her father up until June 2019, so there were limited occasions on which she would have presented him with birthday or Father’s Day cards after the marriage breakdown.

[176] Crown counsel asked me to make negative findings about Mr. O.’s credibility and Defence counsel asked me to make negative findings about M.A.’s credibility based on their respective testimony regarding the dates of the cards. I decline to do so. Neither of the witnesses took an unreasonable position on this issue. Given the passage of time, I would not expect either of them to be able to remember with accuracy when each card was delivered.

[177] Without knowing whether the cards were made before or after the sexual abuse allegedly started, I cannot reasonably infer that they constitute evidence of a lack of avoidant behaviour on M.A.’s part. I should note, however, that even if I accepted Mr. O.’s testimony that the cards were created during the period when the sexual abuse was allegedly happening, I would not infer from them that M.A.’s allegations are less likely to be true.

[178] M.A. testified that many of the Father’s Day cards were written in school as classroom assignments, but she did not attempt to resile from the sentiments expressed in them. Rather, she stated unreservedly, “I prepared those cards because I did love my father at the time.” She added, “I was a child, so regardless of people who did me wrong, I still loved them.” She was referring to her father’s physical abuse, because she testified that the cards were written before the sexual abuse started. But her explanation applies equally if the cards were written after the sexual abuse started. It is both plausible and credible that an 8-year-old or 9-year-old child would have complicated and conflicted emotions, including strong feelings of love for a parent who abuses them both physically and sexually. For that reason, M.A.’s expressions of love for her father (regardless of when the cards were made) do not give rise to reasonable doubt about the veracity of her allegations.

[179] Similarly, the credibility of M.A.’s allegations is not diminished by other evidence of her non-avoidant behaviour, such as the fact that she continued to go on walks with her father and her siblings on a trail close to their school after the sexual abuse allegedly started. To find otherwise would invoke the discredited myth that a “true” victim of childhood sexual abuse will always take concerted steps to avoid her abuser.

[180] I note that there is one piece of evidence of avoidant behaviour in this case. M.A. was cross-examined about a notation that Dr. Luthra made during a visit to his office on April 11, 2018. M.A. and her mother attended that doctor’s appointment together. It is undisputed that M.I. reported to the doctor that she and Mr. O. were going through a separation, and that she had primary custody of the children, but Mr. O. was going to their school to take them out for food or eat with them in the conference room two or three times per week. Dr. Luthra’s clinical note states, among other things, “she doesn’t want to go to school and be with her father.”

[181] M.A. remembered telling the doctor she did not want to go to school and be with her father. Dr. Luthra testified that he thought it was M.I. who relayed M.A.’s concern to him, but he remarked that he did not note who was speaking and therefore could not be certain. I accept M.A.’s clear recollection that, in April 2018, she expressed her desire not to go to school and see her father.

[182] Her statement to that effect is admissible under the “state of mind” exception to the rule against hearsay evidence. An exception to the hearsay rule arises when a declarant’s out-of-court statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made. Two preconditions to admissibility apply. First, the statement must be of a present existing state of mind. Second, the statement must appear to have been made in a natural manner and not under circumstances of suspicion: R. v. Starr, 2000 SCC 40, at para. 168; R. v. Cote, 2018 ONCA 870, at para. 22.

[183] In this case, M.A.’s statement to Dr. Luthra is adduced for the purpose of demonstrating her state of mind at the time when the statement was made. Although the statement was uttered in the context of M.I. relaying to the doctor that Mr. O. was going to the children’s school to take them out for food, there is no evidence that M.A. was prompted, coached, or pressured to make the statement, or was in any way influenced by M.I. to express her desire not to go to school and see her father. The statement therefore does not appear to have been made under circumstances of suspicion. The statement reveals a state of mind that is consistent with a reaction to unwelcome sexual touching by her father when he signed her out of school on weekdays.

Motive to Lie

[184] The Defence argues that M.I. manipulated M.A. into making false allegations against Mr. O. to gain advantage in the high-conflict family court proceeding. Defence counsel submits that M.A. was vulnerable to this manipulation because she felt resentment toward her father for abandoning the family and she had a strong impulse to protect and support her mother.

[185] The Defence has no burden to prove that M.I. had a motive to lie or that she influenced M.A. to achieve her objective: Gerrard, at para. 4. The existence or absence of a motive to lie is, however, a relevant factor to be considered in determining whether there is reasonable doubt about Mr. O.’s guilt: R. v. Hughes, 2017 ONCA 814, at paras. 4, 6-10.

M.A.’s Susceptibility to Manipulation

[186] As mentioned earlier, M.A. told the police she did not have any good memories of her father from prior to when he left the family home. When Defence counsel suggested that her memories of trips to the park with her father and brothers were good memories, she responded, “They would have been good memories to me if he did stay.” She then added that the bad memories had blocked out the good memories in her mind.

[187] Defence counsel argues that this comment by M.A. is evidence that she harbours bitterness toward her father for abandoning the family. Taken in context, I do not interpret the comment that way. Rather, M.A. was conveying that any good memories were erased by the trauma of the sexual abuse she endured after her father left the family residence. She was expressing the thought that, had he stayed – meaning, had the status quo remained in effect – she would not have experienced sexual abuse and would still have happy childhood memories. She did not use those precise words, but I would not expect a 15-year-old to do so.

[188] At another point during her cross-examination, M.A. acknowledged that, prior to her parents’ separation, Mr. O. prepared her lunches, killed insects for her, cared for her when she was sick, and cheered her up when she felt sad. However, she described these tasks as doing the “bare minimum” as a father. When Defence counsel asked her what else Mr. O. should have been doing as a father, she responded, “He should have been there for me all the time, a great father and great husband to my mother. He shouldn’t have moved out.”

[189] Defence counsel argues that this statement demonstrates M.A.’s resentment toward her father for betraying her and her mother by leaving the family home. Taken in the context of all her testimony in court, I do not interpret the statement that way. Clearly, M.A. laments the fact that her father moved out, but that is because his departure was the catalyst that transformed her relationship with him into one of sexual exploitation and interference.

[190] However, I agree with Defence counsel that M.A.’s mention of her father not being a great husband to her mother provides insight into her feelings about her parents’ marriage. She candidly acknowledged during her cross-examination that she felt protective of her mother. Given her exposure to Mr. O.’s history of intimate partner violence, this is not surprising. M.A. confirmed that, when the family was still living together, she wanted to stop her father when he was hurting her mother, but she was too little to be able to do anything. That protective instinct, combined with her young age at the time of her parents’ separation, and the fact that she was almost exclusively in her mother’s care, made her vulnerable to manipulation by her mother.

[191] M.A. testified that she was aware in 2018 that some sort of court proceeding was underway, but she was not aware of who initiated the proceeding or what her parents’ respective positions were on the issues in dispute. She had a vague understanding that parenting arrangements were at issue. She candidly acknowledged that she was supportive of the idea that her mother should continue to care of her and her siblings. Her desire to remain in her mother’s care could also have contributed to her vulnerability to manipulation in the circumstances.

M.I.’s Motive to Fabricate False Allegations Against Mr. O.

[192] It is notable that the timing of M.A.’s comments to Dr. Luthra, and the timing of her ultimate disclosure of the alleged sexual abuse to the police coincide with pivotal points in the family court litigation. Both doctor’s appointments (on April 11, 2018 and May 11, 2018) occurred shortly after M.I. filed her answer to Mr. O.’s Application on April 5, 2018, and prior to the parties’ first appearance in family court. The ultimate report to police (in April 2022) occurred just as Mr. O. was about to resume parenting time with the children after not seeing them for nearly 3 years.

[193] As Harris J. recently noted in R. v. A.G., 2023 ONSC 6038 (not yet reported), at para. 17, “The anger and frustration of a family breakdown has been known to lead on occasion to criminal allegations that later prove false. To allege criminal misconduct is a strong temptation in the heat of family litigation” because criminal allegations of violence can serve as a powerful weapon to gain leverage in family court proceedings: Shaw v. Shaw, 2008 ONCJ 130, at para. 5; Gonzalez v. Trobradovic, 2014 ONSC 2468, at paras. 32-34. For that reason, criminal allegations of family violence are susceptible to abuse: R. v. Walters, 2024 ONSC 978, at paras. 7-8.

[194] In this case, I cannot reasonably infer that M.I. had a motive to fabricate false allegations of sexual abuse against Mr. O. simply because they were embroiled in high conflict parenting litigation when the allegations surfaced. There is, however, other evidence that supports such an inference.

[195] First, it was not symptoms of illness that prompted M.I. to bring M.A. to see Dr. Luthra in April and May 2018. Rather, M.I. appears to have accompanied M.A. to the doctor’s office to create a record of Mr. O.’s alleged misconduct toward M.A. This pattern was repeated on April 4, 2022, when M.I. brought M.A. to see Dr. Luthra again to discuss the recently disclosed allegations of sexual abuse. (Dr. Luthra’s letter dated April 4, 2022, which summarizes their discussion, was ruled inadmissible as a prior consistent statement.)

[196] Second, Mr. O. testified that, in the winter and spring of 2018, M.I. frequently kept the children out of school on the days when he volunteered at the school. He said M.I. did this to prevent them from spending time with him. During her cross-examination, M.A. denied that her mother kept them out of school to separate them from their father. I accept Mr. O.’s evidence on this point because it is corroborated by the school’s Attendance Reports, as explained below. I find that M.A. was likely unaware of her mother’s agenda when she kept the children at home, because the school absences did not effectively prevent them from spending time with their father. It is undisputed that she and her siblings went on many walks in the park with him over the lunch period in the winter and fall of 2018. Her mother’s tactics were therefore ineffective and likely opaque in the mind of an 8-year-old child.

[197] The school Attendance Reports show that all three children had multiple full-day absences between February and June 2018. The frequency of M.A.’s absences far exceeded the number of absences she had in previous school years and in the first half of the 2017-2018 school year. The records confirm that the children’s absences were approved by a parent, but do not indicate which parent. I infer that it was M.I. who approved the absences because it is undisputed that Mr. O. did not at any time take all three children out of school for a full day.

[198] It is notable that Mr. O. requisitioned the children’s school Attendance Reports back in June 2018, long before he was charged with sexual offences against M.A. He explained that he did so to use the Reports as proof of M.I.’s alienating behaviour in the family court proceeding. I accept his testimony on this point as credible. It supports an inference that M.I. was actively interfering with his ability to see the children. It also underscores the high-conflict nature of the parenting dispute and demonstrates the lengths to which M.I. would go to prevent Mr. O. from having a relationship with them.

[199] Finally, Mr. O. adduced other evidence about M.I.’s conduct toward him over the years, which Defence counsel characterizes as deceitful and controlling. With respect to the incident when M.I. bit him in March 2017, Mr. O. said she had locked him out of the house by barricading the front door with furniture. He also testified about how, during the temporary separation that followed (from March to August 2017), he learned through DNA testing that he is not the biological father of his eldest son, M.C. M.I. had concealed that information from him for years. As noted previously, Mr. O. further testified that M.I. terminated the children’s weekend visits to his apartment in May 2019 because he refused to pay for a vacation for them, then she got upset and told him to leave when he showed up at one of J.B.’s soccer games. There was no court order in effect when she took these unilateral steps to prevent him from spending time with the children.

[200] M.I. did not testify in the criminal trial, so I have no evidence from her perspective on any of these issues. Mr. O.’s evidence is plausible and uncontradicted, so I accept it. I conclude that M.I. was actively interfering with Mr. O.’s ability to co-parent the children in the wake of their separation, from December 2017 to June 2018, and again from May 2019 onward.

[201] Based on all the above evidence, I conclude that M.I. had a motive to falsely accuse Mr. O. of criminal misconduct, namely, to enhance her chances of prevailing in their custody battle in family court. It is therefore necessary to scrutinize carefully whether there is any evidence that M.A. may have been manipulated by her mother to fabricate false allegations against her father. There is no onus on the Defence to prove manipulation. Rather, the issue for me to determine is whether there is evidence that gives rise to reasonable doubt about the veracity of M.A.’s allegations of sexual abuse.

No Evidence of M.I.’s Manipulation of M.A.

[202] Having a motive to do something and actually doing it are two different things. I have concluded that M.A. was vulnerable to manipulation by her mother, and that M.I. had a motive to manipulate M.A. into fabricating false criminal allegations against Mr. O., but there is no evidence whatsoever that M.I. acted on that motive, or that M.A.’s allegations were the product of manipulation.

[203] First and foremost, there is no evidence that M.I. relied on Dr. Luthra’s clinical notes in family court, or that she made any allegations of inappropriate conduct by Mr. O. toward M.A. during the family court proceeding. Mr. O. testified at length about family court matters, but he did not state that M.I. accused him of family violence, child abuse, or any sexually inappropriate conduct with respect to M.A. in the context of that proceeding. Furthermore, the fact that he was so shocked by the charges brought against him in April 2022 suggests that the allegations had not been raised previously in the context of the family court proceeding.

[204] Although M.A. acknowledged that in 2018, she was supportive of the idea that her mother should continue to care for her and her siblings, she specifically denied telling Dr. Luthra falsehoods to help her mother achieve that outcome in the court proceeding. She also denied later fabricating serious false allegations of sexual abuse against her father to thwart the resumption of his parenting time. The mere fact that M.A. was supportive of her mother having primary care of her and her siblings in the spring of 2018 is not evidence of manipulation by her mother. Rather, it is entirely consistent with M.A.’s allegation that she was experiencing sexual abuse by her father at that time.

[205] Defence counsel argues that the timing of M.A.’s ultimate disclosure of the alleged sexual abuse is suspect because it occurred on the eve of the resumption of Mr. O.’s parenting time. I reject this argument because M.A. provided a compelling explanation for the timing of her disclosure during her police interview. She knew she was soon going to start seeing her father again. She told the officer that she was experiencing nightmares, “dreams of him chasing me, dragging me, hurting me saying I will regret everything.” She said she sought comfort from her mother when she had these nightmares but did not tell her mother what the dreams were about. She explained to the officer that, even though she was scared, she finally got the courage to “open up” and tell the police what her father had done to her because “I just wanted … you guys to know what I’ve been going through. And I want to be in a safer environment.” This testimony is both credible and convincing.

[206] For the reasons articulated above, I find that M.I.’s motive to fabricate false allegations against Mr. O., and M.A.’s susceptibility to manipulation by M.I., do not raise reasonable doubt about the veracity of M.A.’s allegations. There is no evidence that M.I. acted on a motive to fabricate false claims against Mr. O. in order to gain leverage in the family court proceeding, and there is no evidence that M.A. was in fact manipulated by her mother.

Absence of Evidence from M.I.

[207] The Defence argues that M.I. is central to the issues in dispute and that the Crown’s decision not to call her as a witness leaves an evidential gap in the Crown’s case that gives rise to reasonable doubt about Mr. O.’s guilt.

[208] In determining whether the Crown has satisfied me of Mr. O.’s guilt, I am mindful that reasonable doubt can arise not only from the evidence adduced at trial but also from the absence of evidence at trial: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39; R. v. Hassanzada, 2016 ONCA 284, at paras. 68-70. Reasonable doubt cannot, however, arise from speculation about what uncalled evidence might have been, or about why the evidence was not called: R. v. MacKenzie, 2020 ONCA 646, at paras. 55-58.

[209] I cannot assume that the Crown decided not to call M.I. because her testimony would likely have been helpful to the Defence. Nor can I speculate about what her evidence would have been had she testified. I must, however, consider whether the absence of any evidence from her gives rise to reasonable doubt about any of the essential elements of the offences with which Mr. O. is charged. The Crown has discretion as to which witnesses it will call in presenting its case, but the failure of the Crown to call a key witness can leave a gap in the prosecution’s case: R. v. Cook, [1997] 1 SCR 1113 at para. 30.

[210] I have concluded that the absence of evidence from M.I. does not detract from the Crown’s ability to discharge its onus in this case. The totality of the evidence at trial, especially M.A.’s cogent and compelling testimony, is sufficient to prove the essential elements of the charged offences beyond a reasonable doubt. Corroboration of a complainant’s allegations is not required to find an accused person guilty of a sexual offence: Criminal Code, s. 274. The absence of evidence from M.I. does not raise reasonable doubt about the accused’s guilt of any of the offences charged.

CONCLUSIONS

[211] I am mindful of Mr. O.’s fundamental right to be presumed innocent unless the Crown proves his guilt beyond a reasonable doubt. I cannot convict him simply because I found deficiencies in his credibility. Nor can I determine his guilt or innocence simply by choosing between his and M.A.’s competing versions of events: R. v. C.L.Y., 2008 SCC 2, at paras. 6-8. Verdicts must be reached by considering all the evidence and the absence of evidence, and by applying the framework set out by the Supreme Court of Canada in R. v. W.(D.), at para. 28.

[212] I do not believe Mr. O.’s exculpatory evidence, nor does it leave me with reasonable doubt about whether he committed these offences. I have not assessed his evidence in isolation but rather in the context of the entirety of the evidence at trial, including M.A.’s evidence. When weighed against the totality of the evidence, particularly M.A.’s evidence, Mr. O.’s testimony does not give rise to reasonable doubt: D. (J.J.R.), at para. 53; R. v. R.D., 2016 ONCA 574, at paras. 22 and 23.

[213] For the reasons already outlined above, other potentially exculpatory evidence does not give rise to reasonable doubt about Mr. O.’s guilt. Specifically, the evidence relating to opportunity, delayed disclosure, lack of avoidant behaviour, and motive to lie does not leave me in doubt about his guilt. The absence of evidence from M.I. also does not raise reasonable doubt.

[214] Based on the totality of the evidence that I accept, I find that the Crown has proven the following beyond a reasonable doubt:

(1) On repeated occasions between January and June 2018, Mr. O. played sexually explicit videos for M.A. She was 8 years old at the time. He did this intentionally and for the purpose of facilitating the commission of the offence of sexual interference. This purpose is established beyond a reasonable doubt by the surrounding circumstances: he brought her to his apartment alone; he sometimes watched the pornographic videos with her; when he left her to watch the videos alone, he returned and asked if she had watched them and if she liked them; he told her that she would soon like them; he complimented her appearance; he put makeup on her and dressed her in revealing clothing. All this grooming behaviour, including the exposure to pornographic material, was designed to make M.A. more susceptible to sexual touching.

(2) On these occasions between January and June 2018, Mr. O. intentionally touched M.A.’s chest, buttocks, and upper thighs with his hands. He did so for a sexual purpose. This purpose is established beyond a reasonable doubt by the body parts that he touched, the words he spoke (e.g., telling M.A. that her bottom is big and that soon she will look much prettier), and by all the other surrounding circumstances (e.g., he played pornographic videos for her, put makeup on her, dressed her in revealing clothing, and made her dance for him).

(3) On repeated occasions between July 2018 and May 2019, Mr. O. intentionally touched M.A. in circumstances of a sexual nature while she was showering in his apartment. The touching was not innocent; it was not for the purpose of helping M.A. to wash her body. M.A. was 8 and 9 years old during these events and was capable of showering independently. When she tried to wash herself, Mr. O. told her to stop. The sexual nature of the touching would be apparent to a reasonable observer because of the surrounding circumstances, including that Mr. O. would peek around the curtains and watch M.A. naked in the shower, and that he would rub her breasts and vaginal area. M.A. did not consent to the sexual touching. Mr. O. knew that she did not consent because she told him to stop. He also knew that she was too young to have the capacity to consent to sexual touching.

VERDICTS

[215] The Crown has established all the essential elements of the charged offences beyond a reasonable doubt. I therefore conclude that Mr. O. is guilty of all three charges against him.

Justice C. Petersen

Released: November 15, 2024

COURT FILE NO.: CRIM 339/23 (Brampton)

DATE: 20241115

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

B.O.

JUDGMENT

Petersen J.

Released: November 15, 2024