Restriction on Publication

Pursuant to an order of this court, issued under s. 486.4(1) of the Criminal Code, no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

Reasons for Judgment

Shahid N. Mirza

Introduction

[1] S.P. is charged with sexual interference contrary to s. 151 of the Criminal Code (counts 1 and 3), and sexual assault (counts 2 and 4) contrary to s. 271 of the Criminal Code, of J.S., his former partner’s sister. The counts pertain to two alleged incidents that occurred between February 1, 2016, and August 25, 2018, at the City of Mississauga.

[2] At the closing submissions, the Crown agreed to proceed on the sexual interference counts only.[1]

[3] The Crown called the complainant and her sister. They also filed an Agreed Statement of Facts (ASF). The Crown’s case includes text messages between the accused and his partner, J.O.S. They are admitted on consent. They are continuous, uninterrupted for the time period of late January 23 to February 5, 2021. They were obtained by the police as screenshots. Some of the screenshots have overlapping messages that are discernible.

Summary of Evidence

Crown’s Witnesses

J.S.

[4] J.S., the complainant, testified via CCTV with a support person, on consent.

[5] She is in grade 10. She is 15 years old.

715.1 Statement

[6] On consent, J.S.’s video-statement to the police on February 12, 2021, was admitted as her central examination in chief evidence pursuant to section 715.1 of the Criminal Code. J.S. was 12 years old at the time she gave her statement.

[7] After the statement was played in court, she said it was the truth.

[8] Parts of her video-statement were edited because they contained inadmissible hearsay and inadmissible personal commentary from the interviewing officer.[2]

[9] J.S. describes in the statement to the police that when she was around 6 years old, her sister J.O.S. began dating the accused.

First Incident

[10] The first alleged incident occurred when the accused and J.O.S. had been dating for about a year. J.S. believed the accused was about 19 years old.

[11] One day in the spring or summer, while her sister was at work, the accused came over to their home. J.S. said that she and her other sister (who has special needs) were at home, sitting on the couch. She was doing her homework. Her sister was watching television. No one else was home.

[12] J.S. explained that she was not expecting the accused to come over that day before her sister came home, but agreed with the officer’s question, that it was normal that he would pop over. She believed that on this day, he knocked on the door.

[13] J.S. let the accused inside. He asked her if she would like to watch a YouTube show with her. She agreed. Later in her testimony she said that he stated that he wanted to show her a cool video.

[14] J.S. says that the accused took her to her older sister J.O.S.’s room.

[15] They sat on J.O.S.’s bed. She thought the accused was wearing track pants and a sweatshirt. J.S. wore a pajama set, long sleeve light blue shirt and pants made of legging material.

[16] They sat at the edge of the bed shoulder to shoulder.

[17] He showed her some channels and shows on a tablet. He showed her a science show. She described it as a program where “like one thing happens and then a whole train of things happen.”

[18] J.S. said that while she was watching the show, the accused asked her if she would like to be massaged. She agreed.

[19] The accused massaged her head for two to three minutes. Then her back including her shoulders, over the clothes. He used one hand. In cross-examination, she was taken to her preliminary hearing testimony transcript from 2023, where she said he massaged her shoulders with both hands.

[20] He asked her if she wanted him to keep going. She said sure. Then the accused put his hands down her pants and massaged her vagina under her underwear and pants. She said the sexual touching lasted for about five minutes. She said that he was saying to her are you ok and how are you. She was not really responding.

[21] She stated that he did not penetrate her but massaged her vaginal area. He used his fingers and moved them back and forth, rubbing the area. In cross-examination, she confirmed that there was no penetration.

[22] J.S. stated that then her sister J.O.S. came home. She thinks that her mother picked up J.O.S. from work. Later, she said that she thought that before her sister got home, the accused got a text from her sister stating that she was almost home. Before her sister arrived, S.P. told her that the show had finished. He got up, and she got up. Then he said to her not to tell anyone.

[23] J.S. explained that before J.O.S. came upstairs, the accused stopped the show and told J.S. not to tell anyone because J.O.S. would get mad at him and would be jealous.

[24] J.S. left the room and went to her own room. She did not describe seeing or speaking to her sister.

[25] In cross-examination, J.S. was taken to her preliminary hearing transcript from 2023, where she agreed that her sister saw her come out of the room. She came out first and then the accused. She agreed that she said in her prior testimony that her sister asked her what she was doing and she did not respond but the accused responded that they were just watching a video.

[26] J.S. agreed that on this point, she did not say this in her testimony in examination in chief and that the two versions were different. She agreed coming face to face with her sister in that moment would be traumatic and difficult to forget. She also agreed that she had read her preliminary hearing transcript and watched her video before testifying.

[27] When asked why the change, she said over time she has forgotten stuff.

Second Incident

[28] J.S. said that a few days later, the unwanted sexual touching happened again. In cross-examination, she said it was about 4 to 5 days later.

[29] Her sister with special needs was downstairs. Again, no one else was home.

[30] The accused came over before J.O.S. returned home. He was watching J.S. and her sister.

[31] The accused asked J.S. if she wanted to watch the YouTube show in J.O.S.’s room. They went upstairs and this time they sat in different positions. They were on opposite sides from the first time. She said that he put the iPad between them.

[32] The door was closed.

[33] She was wearing the same clothes. He did the exact same things.

[34] She said the same touching happened again.

[35] At this point in the interview, officer Moore asked several leading questions, all of which elicited affirmative one-word responses of yeah:

• Okay. So, did it start by him massaging your head?
• And did it go to massaging your shoulders?
• And then to your waist again?
• And he did the same thing and he went underneath the underwear?
• And then, to make sure, 'cause I have to ask, did his hands go inside your pants?
• Okay. And was he doing the same time, uh, the first time?

Transcript, at pp. 30-31.

[36] J.S. described that he felt around and rubbed the vaginal area.

[37] She said that this time the touching lasted ten minutes.

[38] She said it stopped because the accused heard J.O.S. opening the door and he got up. He told J.S. to get up, then he got up. Then S.P. told her the same thing as before (referencing not to tell anyone and her sister would be mad and jealous).

[39] The accused opened the door, and her sister J.O.S. came to the room.

[40] In cross-examination, she was taken to her preliminary hearing transcript, where she said the incident stopped when J.O.S. called the accused. J.S. believed J.O.S. was telling him she was almost home.

Disclosure of Allegations

[41] J.S. said that she told J.O.S. about the incidents about 3 weeks prior to giving the statement to police on February 12, 2021.

[42] She said that she was arranging her room with J.O.S.’s help.

[43] She was speaking to her brother about how she did not want him to move away. He told her he would move out in two years. Her sister J.O.S. came up and saw her crying. Then she told J.O.S. she was sad about something else and eventually told her about the incidents.

[44] She said that it took her time to explain to J.O.S. as the words didn’t come out of her mouth. She knew that her sister loved the accused because they had been dating for a long time. She did not want to see J.O.S. sad, so she didn’t want to tell her. J.O.S. comforted J.S. and then she told her.

[45] Then J.O.S. drove to the accused’s home to speak with him.

[46] After returning, J.O.S. told J.S. about her discussion with the accused. In cross-examination, she denied that she went over the incident again with her sister.

[47] J.S. was asked who she had told. J.S. said that she has told her sister (J.O.S.), her dad, brother, aunt and mom. She stated that J.O.S. had told her friend, who is a cop in training. She also described a friend and others that knew.

J.S. Testimony

[48] The Crown asked J.S. additional questions to clarify parts of her video-statement.

[49] J.S. said that to her knowledge, the accused dated her sister for a few months before the incidents occurred.

[50] She said that the accused was at her house every weekend.

[51] She said that she kept her distance from him as she didn’t really like him and didn’t want to get to know him. She said that she is like that with most people when she meets them.

[52] J.S. said that on both incidents S.P. was at their home before J.O.S. (The Crown’s questions were leading in this area and the court re-directed the Crown.)

[53] On the first incident she said she let the accused into the house. When asked why, she said she knew he was coming over. She did not recall if she let him in before. Then she said that she knew he was coming from seeing him in the window.

[54] J.S. said that he came into the home and sat at the kitchen island. The kitchen had been renovated. In cross-examination she said he sat there for about ten minutes. J.S. sat with her sister at the couch. Then he came over to her at the couch and asked her to watch a video upstairs.

[55] On the second incident she let him in. She said there is a window in the front door, and she knew he was her sister’s boyfriend, so she let him in. Similar to the first incident, he went to sit at the island. In cross-examination she said that the second time he was at the island for about 3 to 4 minutes.

[56] J.S. stated that her clothes remained on during both incidents. She said at that age, she could dress and undress herself.

[57] She said that she believes the tablet she watched the shows on was the accused’s tablet or iPad. She said she did not remember the tablet otherwise. In cross-examination, she was taken to the preliminary hearing transcript, where she said she saw the tablet with the accused again after. She agreed she said this.

[58] She said that she went to watch the video because she felt she had no choice because the accused asked her. She felt bad if she didn’t go and for not getting to know her sister’s boyfriend.

[59] She said that she did not tell anyone else before she told J.O.S.

Cross-Examination of J.S.

[60] Below I summarize some additional parts of the cross-examination that are not addressed above.

[61] J.S. said that she had watched her video-statement in court, watched it at the preliminary hearing, and prior to trial. She also read her preliminary hearing transcript. Everything she said was the truth.

[62] J.S. said that she lived with her mother, father, brother, sister J.O.S., and sister with special needs, who was 11 to 12 years old. She was not sure if her grandmother was living with them at the time of the incidents.

[63] She said that her mother was home before the accused came over but left to pick up her sister. She said that was normal for her mother to leave her home alone for a few minutes. She acknowledged she had a sister with special needs. She said her mother would not leave for long. She said that her mom would leave to pick up her sister right before J.O.S.’s shift ended. She agreed that her mother could not leave her home alone for long at 6 years old with her sister with special needs. In re-examination, she said it takes about twenty minutes to go back and forth to her sister’s work.

[64] J.S. explained that she is close with J.O.S. It was hard for her when she moved out. She disagreed that she brought the allegations forward because she was sad or upset about her older siblings’ pending move out of the home. However, she acknowledged that she expressed the allegations around this time and context. She said the day she told J.O.S., her sister saw that she was upset, and then she told her that the siblings moving out was not the only thing upsetting her. It was a weight she could get off of her at that point.

[65] J.S. disagreed that she did not like the accused because her sister was spending time with him a lot and he took her sister’s time away from her. She said she didn’t get to know him, and when she did it was horrible.

[66] She said that the incidents happened when her sister was in first year University sometime around March, April, May. She agreed that would be 2016.

[67] She recalled playing boardgames with the accused and her family. She said the accused may have helped her with math.

[68] She said the accused brought a bag of his belongings with him to the house, and inside was the tablet.

[69] When she went to the bedroom with him the first time, she agreed that she sat with her back against the headboard, pillows behind them, shoulder to shoulder. The tablet was on her lap. She said the second time, he sat on the right side, she sat on the left side which was closer to the door. There was space between them, with the tablet in the middle, between their legs.

[70] She described the video that they watched was 15 minutes long, an interactive style, where you push one item, and others follow.

[71] She thinks that he was massaging her with his right hand. His hand was around her back on her left side. He moved his right hand from her back and went to touch her under the pants. She stated that her sister came home near the end of the video.

[72] J.S. said she left the accused and went to her room. She said that her mother and sister did not see her. She acknowledged that if they had been on the stairs they would have seen her leaving J.O.S.’s room.

[73] J.S. said that with respect to the second incident, her mother went to pick up J.O.S. from work again. The accused showed up about 5 mins after her mother left.

[74] She said that both times her sister’s door was closed.

[75] On the second time, S.P. heard J.O.S. coming back and heard the door open downstairs, and he told J.S. to get up since she was in front of him.

[76] J.S. said that J.O.S. told her she was texting with the accused but did not tell her what was said.

[77] J.S. was challenged that she testified she was 6 or 7 years old, but during the preliminary hearing she said she was 6 years old.

[78] She denied that differences in her story were because she was having trouble keeping her story straight.

[79] She denied that she made up the story because she didn’t want her brother and sister J.O.S. to move out. She said she was sad, but it wasn’t that she didn’t want them to move. She said she opened up about the allegations because she noticed her sister acting differently and the relationship with the accused was taking a toll. She agreed that she thought it was a bad relationship, hurting her sister.

[80] She denied she made it up to put her sister against the accused, to break them up, so her sister would be happy again.

[81] She said she realized other people also go through these things, and if she didn’t say anything, it hurts other people. She saw this from watching some clips called “scenes” on her phone or television, where people discuss toxic relationships and people that are sexually assaulted. She said she did not tell her sister or others she was watching these clips.

J.O.S.

[82] J.O.S. is J.S.’s older sister. She testified about her relationship and discussions with the accused. She also explained their text messages. The text messages were admitted on consent of the Defence with some vetting for inadmissible portions about the accused’s character that is not part of the allegations.

[83] I will refer to the content of the messages as required in this section but will deal with them more extensively in the summary of the accused’s evidence and the analysis. I have considered the messages in their totality and reviewed them fully multiple times. I also asked questions about them with counsel during submissions.

[84] J.O.S. is 27 years old. She works in social services and was in University at the relevant time.

[85] She was in a relationship with the accused from 2016 to 2021. They met in high school and started dating later, when they were in University at different schools.

[86] She said that the accused’s father did not accept her.

[87] S.P. told her that his father was abusive. She thought that S.P. had exhibited mental health concerns, including possibly anxiety, but she was unable to confirm them.

[88] J.O.S. worked part-time. Her employer was about a 5 minute drive from her home. Her mother, father or the accused would pick her up from work, depending on her schedule.

[89] She said that in March, April, and May, S.P. came over to her home once or twice a week maximum but there were weeks he did not come over at all. In the earlier days of their relationship, it was pre-arranged so that she would know when he was coming over. S.P.’s visits were less frequent before he met her parents and more frequent after he met them around August. After he met her father, he came over more often. She said by around July to August, he was over at their house about once every few days. In cross-examination, she said that her siblings knew S.P., but they had little interaction with him. He would come up to J.O.S.’s room during the visits.

[90] J.O.S. stated that if J.S. opened the door for S.P., that meant an adult was home.

[91] J.O.S. said that there were times when she came home, and the accused was already over. She said it was more rare in 2016 because her mother was still getting comfortable with him coming over. She said that the accused would be in her room on those occasions.

[92] J.O.S. described that she lived with her mother, father, two sisters, and grandmother. Her grandmother had a room in the basement and would spend time in the living room during the day.

[93] She said that she did not see S.P. alone with other family members ever.

[94] In cross-examination, she said that their kitchen was renovated fully by October 2018. She was not sure of the start date but said it was not before 2016. The island was put in during the renovation to replace the dining room table. She thought the island was likely completed in October 2018.

[95] She said that she broke up with the accused around February 1 to February 2. It was because of what the accused did to her sister and other problems in their relationship.[3]

[96] She said she learned about the incidents on January 23, 2021, around 9 to 9:30 p.m. J.O.S. said that she was talking to J.S. with her brother. Her brother was joking about wanting to move out, and J.O.S. said that she had a 5-year plan to move out. J.S. was upset about the idea of losing them. After letting J.S. cool off, J.S. said she didn’t want to ruin J.O.S.’s 5-year plan. Then she said that she didn’t want to hurt J.O.S.

[97] J.O.S. told her that the only thing that would hurt her was if J.S. was hurt. She asked her to share what was bothering her.

[98] After some pushing J.S. shared that in the beginning of the relationship the accused had sexually assaulted her. J.S. told J.O.S. that it happened twice.

[99] According to J.O.S., J.S. said that S.P. asked her to watch a video on both occasions on a digital device. He would sit her on his lap, ask her if she wanted a head massage, she said ok. Then it went from her head to her shoulders to the front of her pants. As soon as he heard J.O.S. was coming home, he told J.S. don’t say anything because J.O.S. would get jealous or mad.

[100] In cross-examination, J.O.S. said that her grandmother was home, and her mother may have been as well. J.O.S. denied that J.S. told her she was home alone with her sister with special needs.

[101] Defence counsel took J.O.S. to her preliminary hearing transcript where she said that J.S. told her their mother was home. J.O.S. agreed that J.S. told her that their mother was home. J.O.S. agreed that it didn’t make sense for J.S. to be home alone (at that young age) with her special needs sister. They would not be home alone without adult supervision.

[102] Defence counsel took J.O.S. to her preliminary hearing transcript where she said her grand aunt may have been home. J.O.S. explained that she was nervous and meant her grandmother. Her grand aunt was not in Canada at that time. She came to Canada after the incidents, about 3 or 4 years ago.

[103] J.O.S. also said that she did not recall which kind of video J.S. said they watched. J.O.S. then agreed she told the officer it was a music video but said J.S. was not specific, she alluded to music but couldn’t specifically remember. J.S. told J.O.S. she was upstairs with the accused for about 10 minutes.

[104] In cross-examination, J.O.S. was challenged that previously she said the relevant time was 2016 and now she was anywhere between 2016 and 2017.

[105] She said that after J.S. told J.O.S. about the incidents, J.O.S. apologized to J.S. for what she had been through.

[106] When asked about her observations of J.S. during the time of the allegations, she said J.S. kept her distance from the accused. She was not fond of him. She kept her distance as he more consistently came over, which was after he met her parents around July or August 2016.

[107] Later in cross-examination, J.O.S. was more definitive that the dinner with her parents was in August. She was taken to her preliminary hearing evidence where she said he was only over once or twice to hang out before meeting her parents. In other words, from February to August 2016, if he came over a few times he had no interaction with others and went to her room. Her mother would let him in. J.O.S. denied that she was extending the window of time for S.P.’s visits based on J.S.’s version.

[108] Prior to J.S. disclosing the incidents, she did not hear anything about the two of them.

[109] J.O.S. said that she did not share with the accused the information that J.S. told her when she initially confronted him in person. She wanted him to be impartial.

[110] She drove to his house between 10 and 11 p.m. He got in her car. She asked him directly did you touch my sister inappropriately. He said no, I didn’t.

[111] She said that she noticed his reaction was like he couldn’t believe what was happening.

[112] Then they drove to the back of the building to visitor parking. She didn’t share any specific information about what J.S. told her. She wanted the accused to recall what he remembered on his own.

[113] Later she explained that she told him that J.S. had shared that he touched her inappropriately. She asked him if he recalled any time that he thought that could have happened.

[114] J.O.S. stated that the accused started recalling an incident without prompting. She said much of his version aligned with J.S. She was alarmed. All of the peripheral information was lining up. In cross-examination, she said she remembered a few responses but can’t recall the conversation concretely.

[115] J.O.S. explained that the accused said to her the following.

[116] They were in J.O.S.’s room. He asked J.S. if she wanted to watch something. She said yes. They were sitting on the bed under the sheets watching the video. He had realized that J.S.’s pants had come down because of the position she was sitting on his lap. He was trying to pull them back up. He realized it looked like a bad situation. (This interaction also is explained by the accused at p. 32 of Texts)

[117] J.O.S. stated the information the accused was stating was lining up with the information from J.S. He had said J.O.S. was not home, J.S. was downstairs, he asked her to watch videos upstairs, and they were both in bed. Both J.S. and the accused said he knew J.O.S. was coming home. The accused said not to bring it up because J.O.S. would be jealous or mad and he wanted her to be happy.

[118] In cross-examination, she denied the suggestions that before the accused provided his version, she told the accused what J.S. told her about going upstairs, massaging her, going under the sheets, putting his hands down her pants. Instead, she said that S.P. was outlining a similar situation to what J.S. described on his own. She maintained that she did not tell S.P. anything other than that J.S. said he touched her.

[119] J.O.S. also said that she redirected the accused’s efforts to have follow-up discussions over phone calls instead of text messages. She did not recall the exact words spoken or the duration of their phone conversations, but she agreed she tried to avoid discussions with the accused on the phone. She said that their discussion generally dealt with her emphasis on the need for him to recall as best he could what happened, and she told him she wanted them to communicate over texts. She denied that she told the accused he needed to remember better or more, nor did she tell him words to the effect that if he couldn’t corroborate J.S.’s version, that the relationship would not continue.

[120] She also refuted that she told S.P. that if he isn’t going to come forward with something (inculpatory) that the relationship is over. She knew that S.P. wanted the relationship to continue and at that point, so did she.

[121] She was asked about her text message at p. 6 where she said, “I need you to confirm those things.” She said that meant she needed him to confirm things that he says he’s not of sound mind to recall.

[122] In cross-examination, she agreed that S.P. was trying desperately to repair their relationship after he learned about the alleged incidents.

[123] J.O.S. agreed that S.P. threatened suicide during their relationship. At one point he threatened to go to bed with a bag over his head hoping he would not wake up. J.O.S. denied she was feeding his anxiety by telling him on text she wanted to see him and then avoiding his calls. She denied she was telling him to make his information fit with J.S. She said she did not want it to fit with what J.S. said, as she was still holding out hope for reconciliation on the basis it did not happen.

[124] After their conversation on the night of January 23 or early morning hours of January 24, J.O.S. told the accused that she needed to go home and dropped him to the front of his building.

[125] J.O.S. called her friend, M, who was a police officer in training. M counselled J.O.S. to keep the discussion in text messages as much as possible so she could recall accurately, reflect on the conversations and draw the conclusions she needed.

[126] In cross-examination, J.O.S. denied that she did this to collect evidence against the accused. She agreed that she was trying to get it in writing so it cannot be changed. She said she could not recall if she showed M the messages or spoke with her, but agreed she did communicate with M and shared the contents. She denied she was communicating with M about what to write.

[127] J.O.S. said initially that she thought the touching was a misunderstanding on J.S.’s part. She needed more information. She was also blaming herself. She felt like she should have seen warning signs.

[128] When she got home after confronting the accused, she went to speak with J.S. again. J.S. demonstrated the actions on a soft toy.

[129] In cross-examination, J.O.S. said that J.S. detailed more specifically the type of physical touching and what he did when he put his hands down her pants. She could not recall the length of the conversation.

[130] J.O.S. shared the information about the allegations with her parents.

[131] J.O.S. said that she had some phone calls with the accused, less than 5 or 6. She said she preferred to discuss it over text messages. The phone calls were kept brief, except for the call where she ended the relationship which took place the night of February 1 to early morning of February 2.

[132] She said that call lasted about 3 hours. The accused told her that he wanted to make it right with her sister and her family. He was going to take steps, go to therapy, talk with his parents, he wanted to establish a better relationship with her family.

[133] J.O.S. said that the accused asked if they had a future, and she said no because of what transpired. She had to ensure J.S.’s wellbeing.

Text Messages

[134] J.O.S. described that she sent the messages in Blue. The messages in Grey or Black were from the accused. She believed the messages are from January 24 to February 5, 2021.

[135] She was taken through the text messages to provide her interpretation, comments, and the meaning of her own words.

[136] She said that she responded to his messages on January 25 at 3:11 a.m. where he indicated that he had never had a perverse or sexual encounter with J.S., and that he was sorry for this incident, which was the only time something questionable happened. He told her that he was wrong and should have told her earlier, and that he’s a bad person and wasn’t mature enough, and that’s why he said don’t tell J.O.S.

[137] She viewed the accused’s initial messages as his way to reshape the truth in a way that she would not see him in a bad light. She believed that he was apologetic in part and stating that he cared about betterment. She said that initially he was confirming the truth of J.S.’s version without saying he had done it.

[138] She agreed that she validated his feelings and told him she cared about him as her partner. She said that she still loved him. She sent him unrelated photos that a friend had taken of them on Jan 25, at 11 p.m. Later, she encouraged him to get better.

[139] By pp. 21-22 of the text messages, she said that her fog about their relationship was clearing. He was still focused on repairing the relationship. She felt he was taking advantage of her sympathy when he told her he cut himself.

[140] At p. 6 she told him that she believed J.S. When asked what she meant when she said, “I need you to confirm those things for me to know what I want for us,” she said that she wanted him to elaborate.

[141] The accused responded that “I know I was way too close to her that day. I know I made her feel uncomfortable. I don’t know what else I did, nor do I remember anything significant.”

[142] J.O.S. said she believed at the time that he could better himself. He just needed the right supports. At pp. 19-20 of the texts, J.O.S. told the accused she still wanted him in her life as a friend and loved him. She told him that he would have to rebuild trust and there was a possibility to heal.

[143] After questioning if J.O.S. was saying that they are not together anymore, at p. 21, the accused wrote: “I believe her (J.S.). I see what she says as truth. But I can’t have a limbo relationship for 18 months.”

[144] J.O.S. continued to indicate she would support the accused in a reduced relationship as she also needed to support J.S.

[145] At p. 25, the accused stated: “I understand, please let her know that I will make things right by her, she doesn’t deserve this most of all, I feel terrible, and I will never cross a boundary like that ever again.” J.O.S. responded that she wants to be able to trust S.P. with their (future) children. S.P. says he “would never harm any child, let alone my own offspring.” Later he says “I’m sorry I’ve broken that trust with you. I want to rebuild a life with you regardless of this. And I am aware it will take time and work.”

[146] J.O.S. told S.P. that she had told her father, mother, and her friend M. S.P. asked how does he apologize to her friend.

[147] At p. 31, J.O.S. told S.P. that the toughest thing she had to do was to tell her parents her sister was violated. She said that her father is processing it and wants S.P. to survive.

[148] On January 27, 2021, at 11:01 p.m. S.P. sent a long text message to J.O.S. stating that he was preparing a multi-page document with everything that he “managed to remember from that night. I know for sure that my fingers came into contact with her pelvis, butt, and the cloth above her crotch…regardless of what my intentions were I know I went too far. I know what I did was wrong. I assure you I did it out of selfishness and impulsivity. I was not thinking about Jenell, only myself, and therefore was unaware of the lasting damage until you told me. I have nothing but my shame…I want to read the full account to you and your parents because you deserve to know absolutely every detail of what I did to hurt her…”

[149] S.P. then goes on to discuss his personal experiences, work, and dynamics with his parents, all with a view to seeking to reconcile with J.O.S.

[150] In the last paragraph of this long singular thread, S.P. wrote “Please tell her (J.S.) I am sorry for hurting her. I am an absolute monster. I will work on fixing my relationship with everyone, every day. I hope you see that. I will make it right. I love you.”

[151] J.O.S. responded that she would like to hear S.P.’s full account and her parents deserve to hear it too.

[152] In her mind the relationship was coming to an end.

Defence Evidence

S.P.

[153] S.P. denies the allegations.

[154] He is 27 years old. He has a degree in mechanical engineering from a Canadian university. He works as a design coordinator.

[155] He described coming from a family where he was subject to considerable pressure to do well in school. He said that if he got grades of 90s in school, he was asked about the missing 10 percent. He described that his father was especially harsh, would scold him and then not speak with him. He said that growing up with that pressure made him believe that failure was not an option. He explained that this context would later inform his state of mind and response, including false admissions when confronted with the allegations.

[156] He began a relationship with J.O.S. around February 2016. He said that his father disapproved of their relationship, telling S.P. that it would not last.

[157] S.P. was not welcome formally in J.O.S.’s home until he met her parents in August 2016. He had been to her home a few times before then. He said that he was not there without J.O.S.

[158] He said that his best estimate of when he would go over to her home, with her present was early 2017. In cross-examination, he said he started going over to her home more frequently in April to May 2017. He estimated it to be once a week or so, depending on their schedules. Prior to that he said he went over a couple of times a month.

[159] S.P. stated that he thinks that J.O.S. started working in the summer of 2017, coinciding with his co-op placement. He thinks that around 2018 to 2019 he was visiting her an average of once per week. He would pick up J.O.S. from work. He denied that he was over at J.O.S.’s home before she came home in 2017.

[160] In 2017, they spent more time together and he had some more money. In his mind, they had a long-term future. They spoke about names for the kids they wanted, they looked at houses they may want to buy when he was supposed to graduate in 2020. However, that was delayed when he failed a semester at school.

[161] In cross-examination, S.P. said that as their relationship progressed and his co-op placement permitted him to live at home, he saw J.O.S. more often.

[162] S.P. discussed that unforeseen circumstances caused issues in their relationship. J.O.S. had plans to move out then Covid happened. He said that they were having problems for 8 months leading up to January 2021.

[163] He described the night J.O.S. confronted him with the allegations. J.O.S. called him one night and said she wanted to have a serious discussion. She said she needed to meet in person. In cross-examination, he said it was either January 23 or 24.

Text Messages and Discussions

[164] S.P. confirmed that all of the text messages submitted were accurate. He relied on them to explain his position. He confirmed the messages in Blue were sent by J.O.S. The messages in Grey and Black were his messages. He agreed that they represented their discussions over text from January 23 to February 5, 2021. In cross-examination, he agreed he sent the messages of his own free will. He said that he sent them, including the admissions he would claim to be false, because he was afraid of failure of their relationship.

[165] In summarizing S.P.’s evidence, I have considered the totality of text messages and explanations, but I do not intend to reproduce or quote all of them.

[166] In summarizing the messages and surrounding testimony, I have focused on S.P.’s explanations. I have quoted some messages, while editing grammar or names to protect identities. I will refer to parts of texts in the analysis as well.

[167] On the night that S.P. was told about the allegations, he stated that J.O.S. texted him that she was downstairs and to come down from his apartment to meet with her in her vehicle. He left his video-game match to speak with her. He got into her vehicle, and they drove behind his building.

[168] S.P. said that J.O.S. asked him if he had ever inappropriately touched J.S. He said she implied that it happened two times. He responded, no. He told her that the allegations were ridiculous and crazy.

[169] S.P. said that J.O.S. told him a long story that he went to her place, lured J.S. upstairs, massaged her, while watching a video, and that he told J.S. not to tell anyone because J.O.S. would be upset and jealous. He said he responded, “what the fuck.”

[170] He said that as he denied the allegations, J.O.S. kept insisting that he was not telling her everything and that there was more to what happened. He testified that he told her that it was preposterous and that the allegations had holes all over it. He said that J.O.S. told him he was lying and that there is more. S.P. stated that he told J.O.S. that this was insane, irrational, calling J.S. delusional.

[171] S.P. stated that J.O.S. told him that he has to tell her what happened, or their relationship is done.

[172] S.P. described that J.O.S. spoke with him in the form of an ultimatum, without using those words. He said that J.O.S. said to him that he has to tell her he did these things, or the relationship is over, and they can’t be together. He said that in response, he panicked. Five years of their relationship was coming up. He saw J.O.S. as his future wife, mother of his children, and thought they would grow old together.

[173] He said that when she threatened their relationship would be over if he didn’t tell her more, he cried. He was worried. He said that he was processing the situation, and he was saying the allegations back to her.

[174] He was telling her things that fit with the story J.O.S. told him and trying to put it together. He said he relayed back to her that he was at her place, at some point he lured J.S. upstairs, while under the sheets, she was on his lap, watching the video. He said that when he got to the massage part, he assumed it started at the back and shoulders. J.O.S. told him no, you started at the head. S.P. said this made him feel confused.

[175] J.O.S. then asked him when he touched J.S.’s vagina. He said at that point he blew up, and called J.S. insane, delusional. He said that he didn’t know who she was talking about. He started crying and didn’t know what to do.

[176] S.P. said that he asked J.O.S. if their relationship was over, and J.O.S. didn’t say anything.

[177] He said that he kept denying everything. At some point, J.O.S. drove to the front of the building. She dropped him off. He said he asked for a hug, and she shook her head negatively.

[178] Then he went back upstairs, and they communicated by texts afterwards. He was not sure if it was the same calendar day, but it was later that night. He said their conversation was at least an hour.

[179] He said he remembers needing to go to the bathroom when he got back to his apartment. He believes his parents were sleeping.

[180] He then sent J.O.S. a series of text messages. He said the first message he sent was a denial.

[181] But a few messages later, he apologized based on what he was relaying back to her from what she told him.

[182] In consecutive messages he stated several admissions that would continue over through the thread. I will address them in segments. At trial, the questions were broken into more segments around the messages. Below I will summarize S.P.’s evidence in relation to the admissions.

[183] In the earlier segment of the messages, immediately after the denial, he states the following apology: “I promise you this on my life that that incident is the worst and only time anything questionable has been done.” Followed by “I can’t express how sorry I am that J.S. held this in for all these years, I will work to make this right my entire life.” Followed by “She deserves a better brother-in-law…I really do care about this, and I hope this incessant rambling satisfies your questions telling you about all of this happening – woulda should coulda didn’t - because of my embarrassment and shame from being in that situation. I was acting like a child by not telling you and even more so by letting it slip to the back of my mind. I apologize for this, I am entirely in the wrong here and for that I am sorry. I’m so sorry J.O.S. I’m such as bad person. I wasn’t mature enough to tell you that it happened, I think that’s why I said don’t tell J.O.S.”

[184] In his testimony, he said that he was talking about the scenario that was put to him by J.O.S. in the car, that did not actually happen. When asked why did he tell her he did it, he said he wrote those words because J.O.S. told him they would break up if he didn’t give her anything. She would not respond. When he went to the washroom after coming back upstairs, he was emotional and physically suffering from hemorrhoids.

[185] He said he wanted J.O.S. to speak to him again. She was not responding, and he thought they were done. He felt a sense of dread and hopelessness.

[186] S.P. stated that the admissions that followed were because “I had to give her something.” S.P. said that even though nothing happened, if he didn’t give J.O.S. exactly what she was looking for, despite him knowing it didn’t happen, their relationship was over. J.O.S. kept insisting that something did happen, and he just didn’t want to break up with her. He believed that this segment of their messages was from around January 24.

[187] S.P. said that he tried to call J.O.S., but she did not respond. On January 25, she responded and called him in the morning. She told him I want you to know I love you and need you to be strong. J.O.S. mentioned to S.P. having a face-to-face conversation but S.P. explained that it did not happen.

[188] S.P. messaged back that he understood it would take time. J.O.S. messaged S.P. that “I want you to know I believe J.S. and I stand by her. I need you to confirm those things for me to know what I want for us.” S.P. responded that he understood. Then J.O.S. said “She wouldn’t lie to me and it’s putting me in a mentally challenging space. Because her story fills the blanks for your story.”

[189] S.P. testified that by this point he had only relayed back to J.O.S. what she told him in the car about the allegations. He said he only had what J.O.S. was feeding him.

[190] S.P. messaged J.O.S. “I know I was way too close to her that day. I know I made her uncomfortable. I don’t know what else I did, nor do I remember anything significant. I’m being 100% serious with you J.O.S., I believe her too. I know I made her uncomfortable. I don’t know what J.S. says happened, but if a child feels like they were violated I will believe them even if I am the accused. I can be careless, I can be apathetic, sociopathic even but I’m not a rapist. I’m not a predator. I fucked up, I hurt her, I know that for sure though. I don’t know what else needs to be confirmed.”

[191] S.P. explained these messages as trying to get J.O.S. to speak with him face to face where he would be able to have a conversation and convince her that it did not happen, that it wasn’t true and that they could still be together. He said that his admissions were giving J.O.S. things to respond to in order to do his best to keep the conversation going. He was saying things that were untrue to get her to call him. He desperately wanted J.O.S. to communicate with him. He was trying to fill in details of what he was given.

[192] S.P. said that he responded to J.O.S.’s text message that “the moment I was under the sheets?” And J.O.S. said, “yes you both were sitting under the sheets.” Because it was part of the story J.O.S. fed him in the car. S.P. said she also went through that story again on the Monday when they were on the phone. S.P. said that the thumbs up emoji was sent in error in relation to J.O.S.’s message “she said you asked her if she was okay.”

[193] S.P. messaged that he was “handsy” and “touchy” but specifically denied ever rubbing J.S.’s clitoral area.

[194] S.P. messaged that “it stopped the moment I realized putting her pants back up made her uncomfortable, I left to go to the washroom.”

[195] In response to J.O.S. telling him via texts, that J.S. said that he told J.S. not to say anything because J.O.S. would be mad at her and you, and he wouldn’t want J.O.S. to be jealous of J.S., S.P. messaged: “No I said that you’d be jealous, and that to not tell you. I never said anything about making you mad.” In his testimony explaining this message, S.P. said that he corrected J.O.S., but at the same time maintained that he never said that to J.S.

[196] In cross-examination, S.P. said that he got the information about J.S.’s pants being down from J.O.S. during their phone conversation on Monday. He disagreed that he raised this point on his own. S.P. agreed that he pushed back hard on the allegations when speaking with J.O.S. in the car, but he did not push back similarly in the text messages. He said that this was because J.O.S. had already threatened the relationship.

[197] S.P. denied in text that it happened twice when J.O.S. told him J.S. said that. S.P. said “I don’t know what to say J.O.S., I have no recollection of any other instance even remotely close to the absurdity of this. I don’t remember J.O.S. It’s fucked up.” S.P. testified that he wanted to keep responding to her. In cross-examination, he said that J.O.S. mentioned two incidents in the car.

[198] When S.P. messaged to J.O.S. that “believe her and let her know she’s never been more right. She is a victim of my damn inaction and let her know I’m so sorry.” And then later, said “I fully expect this to end up with me in prison or something because I have no defence other than that,” and J.O.S. had replied that “I want you to know I’m fighting for you,” S.P. testified that he was scared, but still hopeful he could be together with J.O.S., and couldn’t accept another failure.

[199] He said to her “What do I have to do to prove it to you, how? Please, I need you, I hare (sp) this, Im sorry, I let my emotions run. I apologise (sp).”

[200] S.P. testified that J.O.S.’s text responses at pp. 14 to 21, that she knew he was better than this, it would take time, and her directions about S.P. taking steps to improve - gave him hope and he felt he had a chance. However, he felt conflicted when it seemed like she was saying they were not together anymore.

[201] In cross-examination, S.P. agreed that his messages sounded remorseful for doing something terrible. He said that he only referred to one incident because he broke down when he came back upstairs from the car, and felt he had to give J.O.S. this. He said he had no other options. He said that he sent the messages probably 15 to 20 minutes after leaving the car.

[202] When asked how would admitting the touching help their relationship, he said he was trying to take the blame so that J.O.S. would talk to him again. He wanted an opportunity to speak to her properly and thought there was still a chance. S.P. said that he was throwing everything at the wall to see what sticks, when stating “believe her and let her know she’s never been more right. She is a victim of my damn inaction and let her know I’m so sorry.” S.P. said it seemed like J.O.S. was receptive to him saying sorry. He didn’t want to fail in the relationship. Nothing else was working. In his mind, by taking the blame, there is a reason for her to talk with him about it.

[203] When confronted by the Crown with the theory that his explanation was illogical in that his admissions could not advance the relationship, S.P. said that he knew that this was “out to lunch” and none of it made sense, but he was throwing everything at the wall to get that final conversation where he hoped he could convince J.O.S. to be with him and that he did not do what was alleged despite the admissions. In the moment, he was trying to give her what she wants.

[204] When the Crown asked S.P. why he texted – “please tell her I am so sorry for hurting her. I am an absolute monster. I will work on fixing my relationship with everyone, every day,” and later saying “I have done irredeemable damage to the entirety of your family,” S.P. said he wanted to keep the conversation going. He agreed that this strategy of making himself out as guilty was not working.

[205] With respect to the timeline of the messages, S.P. said that as the texts continued and time passed, by pp. 24 of the texts, it was unlikely it was still January 25.

[206] S.P. said he felt terrible when J.O.S. messaged him that I want to be able to trust you with our children. S.P. promised he would never harm any child.

[207] In summary, they continued to message each other with S.P. seeking affirmation they still had a relationship. J.O.S. responded she believed he could change but was conflicted.

[208] On January 27 at 11 p.m. S.P. sent a long message indicating that he is preparing a document with everything he remembers from that night. In an excerpt of the text, he states: “I know for sure that my fingers came into contact of her pelvis, butt, and the cloth above her crotch. I know for a fact I was self-centered and let fear of being caught in an irredeemable scenario compel me to be rash and impulsive. I wasn’t thinking. Regardless of my intentions, I know I went too far. I know what I did was wrong. I assure you I did it out of selfishness and impulsivity. I was not thinking about J.S., only myself, and therefore unaware of the lasting damage until you told me. I have nothing but my shame….I want to read the full account to you and your parents because you deserve to know absolutely every detail of what I did to hurt her. When the chance arises, please tell me. I want to right this…”

[209] S.P. testified that his message about fingers coming into contact with her pelvis were not true. He said he never prepared the document he mentioned. All of it was to get J.O.S. to respond and it worked. In cross-examination, S.P. called it 7 pages of “bullshit” and said it seemed reasonable to get her to talk about it. He said he made it up.

[210] He said that when he texted “and I’ve destroyed any form of support outside of it the night I violated J.S.,” this was said because J.O.S. wanted to know what else he did.

[211] S.P. denied that he violated J.S., and that it happened twice.

[212] S.P. texted again on January 28, and discussed confronting his own Dad about their relationship, describing it as oppressive. Later he says “I have done irredeemable damage to the entirety of your family. I am fully aware of the circle of trust I built up is completely destroyed – yours, J.S., your parents. From the bottom of my heart, I swear I never meant for any of this – but regardless of my intent I have wronged you all immensely and will do right by it. I took all the things you and I worked through together and threw it in the trash by one stupid, childish, selfish choice.”

[213] Later he states, “I realize I don’t have the support I need from within my own family (I never have outside of s. (brother)) and I’ve destroyed any form of support outside of it the night I violated J.S.” In this segment of texts, S.P. refers to being hurt as a child and that he wants help, while stating “I don’t deserve help after what I’ve done…”

[214] S.P. testified that from January 28 to January 31, he tried numerous times to speak with J.O.S. on the phone, but she would not pick up.

[215] On February 2, 2021, at 12:25 a.m. J.O.S. messaged S.P. to talk. They spoke on the phone, and she told him the relationship was over. She wanted him to go to therapy and message her when he had done so.

[216] On February 5, 2021, at 8:15 p.m. S.P. messaged to J.O.S. he got out of his first session. J.O.S. did not respond.

[217] S.P. said that he bought an iPad for himself around the fall of 2017. Around September to October. He paused for a while and thought about this answer before giving it. He said he got it to prepare for mid-terms. S.P. stated that he believed the renovations at J.O.S.’s home ended around the Summer to Fall.

[218] S.P. denied that he took J.S. upstairs to J.O.S.’s bedroom to watch a video. He denied getting into bed with her followed by a massage and touching her vaginal area.

[219] In cross-examination he said all of the inculpatory messages he authored were an effort to try to save the relationship. He agreed that he did not attempt to deny the allegations in whole or comprehensively in the texts but claimed that he was pushing back during phone calls, using language like ridiculous. In re-examination, he said that some of the messages at pp. 1 and 11, included push back such as when he messaged earlier on “J.O.S., I promise you from the bottom of my heart I have never had any perverse or sexual encounter with J.S.;” and later “I however, can swear on Link J.O.S., that I have never. Ever. By intentional actions or mind have done this.” S.P. said J.O.S. didn’t respond to that and then the admissions he wrote ensued in order to get her back.

[220] In cross-examination, S.P. was challenged that his father did not approve of the relationship, so it didn’t make sense that he was concerned about the relationship failing. S.P. disagreed and said he didn’t want the relationship to end or fail.

Agreed Statement of Facts (ASF)

[221] Two ASFs were filed. The first dealt with the section 715.1 statement and the portions that were admissible.

[222] The second ASF dealt with the anticipated evidence of S.A., the mother of J.S. and J.O.S. This ASF describes that J.S. would not be home alone with her special needs sister; and that when J.S. disclosed the incident to her mother, J.S. told her mother that other adults were home, including her mother and grandmother. I will address the particulars of the ASF further in the analysis.

The Law

Criminal Code

Section 151 of the Criminal Code details the offence of sexual interference:

Sexual interference

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

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

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

Essential Principles

Presumption of Innocence

[223] The accused is presumed innocent. The presumption of innocence is of fundamental importance in the criminal justice system as it places the burden of proof squarely on the Crown, and also serves to protect against wrongful conviction.

[224] The presumption of innocence stays with the accused throughout the trial and is only displaced if the court is satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge. The accused does not have an obligation to prove anything or to testify.

Proof Beyond a Reasonable Doubt

[225] The concept of proof beyond a reasonable doubt is also of paramount importance in the criminal justice system. Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[226] While probable or likely guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[227] If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence or lack of evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[228] When assessing circumstantial evidence, I must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negate these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation. R. v. Villaroman, 2016 SCC 33, paras. 36-37.

[229] Ultimately, in order to convict an accused person of an offence, I must be sure that the defendant committed the offence. If I am not sure, I must acquit.

[230] The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada in R. v. W.(D.):

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

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

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

[231] The W.(D.) analysis is a useful framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests. R. v. J.H.S., 2008 SCC 30; R. v. C.L.Y., 2008 SCC 2.

[232] In applying the W.(D.) methodology, I am attentive to the following additional guidance that has been provided by the caselaw. First, the W.(D.) methodology applies not only to instances where the Defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown’s case, for example, where a Crown witness provides evidence in support of the Defence. R. v. B.D., 2011 ONCA 51, para. 105.

[233] Second, in considering the first two steps of the W.(D.) analysis, the evidence of the accused must be considered in the context of the evidence as a whole, including the complainant’s evidence. In other words, the assessment is not simply whether the accused’s evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere, para. 51; R. v. Hull; R. v. J.J.R.D., 215 C.C.C. (3d) 252.

[234] Third, the second step of the W.(D.) analysis is important. It emphasizes the point that credibility assessments in a criminal case are not dichotomous.

[235] There is a third alternative between complete acceptance and complete rejection of the accused’s evidence that can ground a reasonable doubt. R. v. Edwards, 2012 ONSC 3373, para. 20; R. v. J.M., 2018 ONSC 344, paras. 9-20.

[236] If the judge is unable or cannot decide whom to believe, the court must find the accused not guilty. Likewise, if the judge believes both versions of the events then the court must acquit.

[237] In addition, I recognize the following further principles apply to the assessment of the accused’s evidence and reasonable doubt.

[238] An accused’s evidence should only be rejected after a considered and reasoned assessment of their evidence, free from bias, partiality or sympathy. It is not appropriate to just refuse to accept their evidence in a conclusory manner without proper justification.

[239] It is not necessary to believe the evidence that supports the defence on a vital issue; rather, it is sufficient if, when viewed in the context of all of the evidence, the conflicting evidence leaves me in a state of reasonable doubt as to the accused’s guilt.

[240] The rejection of the evidence of the accused cannot, in itself, be taken as positive evidence of guilt.

[241] If I reject the accused’s version, I must take a step back and consider whether, on the whole of the remaining evidence that I do accept, whether I am left in a state of reasonable doubt on any of the charges.

[242] If I reject the accused’s evidence but can only find the allegations probably occurred then the prosecution has not met its burden of proof and the accused must be found not guilty.

[243] On the other hand, if the Crown has met their burden of proof beyond a reasonable doubt with respect to any charge, then the accused must be found guilty of that charge.

[244] When assessing credibility, there is no formula that applies in determining whether a witness is telling the truth. Instead, the witness’ evidence is considered using a reasoned coherent approach that is not tainted by myth, stereotype, sympathy, or assumption.

[245] There are many factors that may be relevant in determining credibility. Some of the key factors include whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, and what explanations are given for any inconsistencies.

[246] It is important that a judge consider whether the inconsistencies suggest that the witness is lying or not telling the whole truth or that their memory may be flawed or unreliable. R. v. J.E., 2024 ONCA 801, para. 25.

[247] As the Court of Appeal confirmed in R. v. Varghese, 2024 ONCA 555, para. 49, to be given confirmatory weight, evidence need only be more consistent with the complainant’s version of events than with another version: R. v. T.W.S., 2018 BCCA 119, para. 40; R. v. Demedeiros, 2018 ABCA 241, para. 10, aff’d 2019 SCC 11. Deciding whether evidence confirms or corroborates a complainant’s allegations “is part of the broader assessment of the complainant’s credibility and reliability that trial judges must make based on the entirety of the evidence”: R. v. G.H., 2023 ONCA 89, para. 20; R. v. S.R., 2023 ONCA 671, para. 7.

[248] Arriving at a verdict in this case requires that I determine issues of credibility and reliability. In other words, I must decide whether the witnesses told the truth and if so, whether their evidence can be relied upon as accurate.

[249] However, and to be clear, this case is not a credibility contest.

[250] The issue is not whose evidence I prefer. Rather, the issue is whether the Crown has proven the case against the accused, on each charge, beyond a reasonable doubt. In making this determination I can accept some, none, or all of any witness’ evidence. I may find that even though I prefer the evidence of a Crown witness on some points over the evidence of or supporting the accused, I am left with a reasonable doubt about guilt.

[251] As well, after careful consideration of all the evidence, I may not know who to believe, in which case, I am also left with reasonable doubt.

[Further sections omitted for brevity; see full text above for complete content.]

Conclusion

[344] I find the accused guilty of one count of sexual interference.

[345] For the purposes of the Indictment, the accused is found guilty of count 1 and not guilty of count 2.

Released: March 10, 2025

Endnotes

[1] This trial started as a jury trial from October 21 to 24. However, due to prejudicial evidence elicited by the Crown from their witness, J.O.S., that likely would have warranted a mistrial, on consent the accused re-elected to proceed judge alone.

[2] When section 715.1 procedure is used to admit a child’s statement to the police as their evidence in examination in chief, it is important that only the admissible parts of the statement are admitted, especially before a jury. Portions of the video-statement that would not be admissible as the examination in chief (by way of testimony) should be excluded and redacted as appropriate.

[3] It was consented to that she could testify about manipulation but not alleged partner abuse. There was no application brought by the Crown to adduce evidence of bad character for any purpose. The jury trial became a judge alone trial on consent, because J.O.S. responded to a broadly worded Crown question about why the relationship ended and she reported that she had been sexually abused. This did not form part of the admissible evidence at this trial.

[4] Link Jo appears to be a spiritual entity for the accused.