R. v. C.N., 2025 ONSC 1570

Reasons for Judgment

Court File No.: CR-24-0336-0000
Date: 2025-04-03
Ontario Superior Court of Justice

Between:
His Majesty the King
Adam Bernstein, for the Crown

-and-

C.N.
Ravinder Mann, for the Accused

Heard: February 3-6 and 10, 2025

Reasons for Judgment
Sylvain Lemay

Introduction

1The accused is facing two charges, one of sexual assault and one of touching for a sexual purpose. The specific counts on the indictment read as follows:

C.N. stands charged:

That he, on or about the 16th day of September, 2023, at the City of Brampton, in the Central West Region, did commit a sexual assault on [V.V.], contrary to section 271 of the Criminal Code of Canada;

C.N. further stands charged:

That he, on or about the 16th day of September, 2023, at the City of Brampton, in the Central West Region, did for a sexual purpose touch [V.V.], a person under the age of sixteen years, directly with a part of his body, contrary to section 151 of the Criminal Code of Canada.

2The accused lives in the same neighbourhood as the complainant, V.V., who was a seven-year-old girl at the time of the incident. Their houses are relatively close together, although they are on different streets. It is a relatively short walk between the two houses because there is a catwalk that connects the two streets, and that catwalk is located very close to both the accused’s house and V.V.’s house.

3The events in question all stem from an incident that took place over approximately twenty minutes on September 16, 2023. In brief, V.V. and her friend M.O. were in the accused’s backyard for a few minutes. They had come there to see whether the accused had baby clothes that they were interested in having. The Crown alleges that the accused exposed his genitals to M.O. and put V.V. on his lap and groped her for approximately a minute while his penis was out of his pants but under his shirt.

4The Crown’s case consisted of the testimony of V.V., her friend M.O., and Kimberley Conway, one of the tenants that lived in the accused’s house.

5The accused testified on his own behalf. In addition, the accused led some limited evidence from Officer Gurpreet Saran, who conducted the interview of M.O.

6Finally, there was some evidence led from Bart Dabrowa, who was the Officer in Charge. Officer Dabrowa was originally called during the Crown’s case at the request of the defence and on the understanding that the defence would conduct an examination-in-chief only. However, after that examination was completed and before the Crown’s case was closed, the Crown determined that they also needed some evidence from Officer Dabrowa. This procedure was unusual but, subject to some rulings I made about what evidence the defence could actually lead through Officer Dabrowa, I understand that the parties were satisfied with the extent of their opportunity to question Officer Dabrowa.

7In the sections that follow, I will set out an outline of the events. Then, I will set out the relevant law. Finally, as this is a case that requires me to consider the credibility of the witnesses, I will conduct an analysis of the evidence that I have heard and outline my factual conclusions.

Background

a) The Sources of Evidence

8At the time of the incident in September of 2023, both M.O. and V.V. were seven years old. As a result, both girls testified remotely and were shown their statements to the police. Pursuant to the process under section 715.1 of the Criminal Code, both girls adopted their statements, and they were treated as part of their evidence on the trial. We also heard viva voce evidence from the witnesses listed above.

9In addition to the viva voce evidence, two sets of video clips from surveillance cameras in the neighbourhood were entered into evidence. Those video clips provide an objective picture of the timing of events, as well as who was where at particular moments in the sequence of events. They do not show everything. However, one camera was located so that it showed the intersection between the sidewalk and the catwalk on V.V.’s street. The other camera was located on the accused’s street, and showed a view that ran from the catwalk to his driveway.

10Finally, I should provide a brief explanation of the evidence that the accused’s counsel sought to lead from Officers Dabrowa and Saran. I ruled that much of this evidence was inadmissible. For context, I will now briefly explain what the excluded evidence was and why it was excluded.

11First, counsel for the accused sought to introduce the police statement of V.V.’s mother through Officer Dabrowa, as he was the one who took the statement. I rejected this request as the statement is hearsay and V.V.’s mother was available as a witness and could have been called by the accused’s counsel. There was no basis for the request to have V.V.’s mother’s statement entered as her evidence. I will return to the issue of V.V.’s mother’s evidence in my discussion of adverse inferences below.

12Second, counsel for the accused sought to obtain Officer Saran’s opinion on whether M.O. was lying to him when she gave him her statement. He sought to lead this evidence based on the fact that Officer Saran was an expert in interviewing children aged 18 and under. The question of whether M.O. was telling the truth or lying is one for me to determine, and not one that is amenable to expert evidence from a police officer, even one who routinely interviews child witnesses.

13Finally, the accused’s criminal record was put to him in cross-examination. That record had been redacted, and its contents were before me on consent. It contained the following types of entries that are suggestive of crimes of dishonesty:

• A whole series of convictions for failing to comply with probation orders or breaching a conditional sentence order.
• Two old convictions for theft under $1,000.00.
• Several counts of failing to attend court or follow Court orders.

14The accused’s record that was before me was extensive. Having reviewed the accused’s prior criminal record, I am of the view that it is not a significant factor in the weighing of the accused’s evidence. While there are crimes of dishonesty on that record that bring the accused’s credibility into question, the evidence in this case is sufficient for me to dispose of the credibility issues in respect of the accused without needing to rely on the accused’s record.

b) The Outline of Events

15As I have set out, the accused and V.V. lived on adjoining streets. September 16, 2023 was a sunny and mild day, and V.V., M.O. and their siblings were out playing on the street. V.V. and M.O. were playing with an old high chair.

16The accused walked down the catwalk to the street that V.V. lived on and looked around. He then walked in the direction of V.V.’s house where the children were playing. All of the witnesses agree that the accused talked to V.V. and M.O. There is a dispute over the precise nature of that conversation, which I will return to, although by closing arguments there was no real dispute that the accused had suggested to the girls that he had baby clothes at his house.

17After the conversation, the accused walked back towards the catwalk. On his evidence, he was returning home and had not invited M.O. or V.V. to come with him. On their evidence, they had been invited back to his house to see some baby clothes that he had that he was going to give them. The accused testified that he did not want the girls to accompany him to his house.

18One of the videos shows the girls, the accused and K.V., V.V.’s older brother, at the intersection of the catwalk and the sidewalk on the street where V.V. lived. K.V. was riding his bicycle. They then disappear down the catwalk and another video picks up the girls and the accused walking down the catwalk to the sidewalk, and turning towards the accused’s house. It then shows the girls and the accused walking into the accused’s driveway. K.V. is no longer travelling with them and does not, as far as I can see, emerge from the catwalk on the accused’s street.

19The accused, V.V. and M.O. all agree that the accused and the girls walked into the accused’s backyard. A purple tent was set up in that backyard, and the accused and the girls all agree that the three of them entered the tent. The tent was divided into two halves (rooms) and there was a rocking chair in one half of the tent.

20The accused testified that he went into the tent to see whether he had the clothes. He then sat down on the rocking chair, and V.V. climbed up on his lap. The accused testified that V.V. climbed up on his lap on her own and that she was not invited to climb up. The accused also testified that, once V.V. got up on his lap, he held her by the shoulders, and then the waist, to keep her from coming into contact with her chest. All of the witnesses agree that, at this point, V.V. was facing the same direction as the accused.

21V.V. on the other hand testified that she was asked whether she wanted to get into the accused’s lap. V.V. testified that the accused lifted her into his lap.

M.O. also testified that V.V. was asked whether she wanted to get into the accused’s lap and said sure. V.V. did not testify about seeing anything else, and V.V. confirmed that she did not see the accused’s private parts at any point.

22M.O. on the other hand, testified about seeing the accused’s “balls”. There were some issues in the timing of this evidence that I will return to below. However, M.O. testified that she did not know any other names for these body parts, but correctly described the male anatomy. It included two circles (one on each side) and a long piece of skin in the middle. M.O. testified that the accused put his “balls” under his shirt and then had V.V. sit on his lap.

23As I have noted, the accused testified that he had his hands on V.V.’s shoulders and then her hips. He testified that he did not touch V.V. elsewhere. However, both girls testified that he touched V.V. on her chest area. I will return to that discrepancy below.

24While V.V. was sitting on the accused’s lap, M.O. was holding a stuffed cat in her hands. The accused attempted to take the stuffed cat but M.O. yanked it away from him.

25In any event, the girls became uncomfortable. The girls then testified that they left because they told the accused that they had to check on their brothers. They walked out of the tent and the backyard, and retraced their steps. Based on the time stamps in the videos, the amount of time that had passed between the time the accused and the girls disappeared up the path at the side of the accused’s house and the time that the girls reappeared on the accused’s driveway was 3 minutes and 11 seconds.

26There was then one brief further interaction between the children and the accused. V.V., M.O., K.V. and two other children were playing right around the accused’s house. He took a trampoline out to them and asked the children if they wanted it. They all wanted it, and the accused gave the trampoline to K.V.

27Shortly thereafter, a man who I am given to understand was the father of one of the girls visited the accused’s property. He was observed by Ms. Conway, who was sitting on the front porch having a smoke when this man came up the driveway. Ms. Conway testified that, although she did not know who this man was, he was angry and was yelling at the accused. She got up from her chair and went to observe what was happening. She saw the man and the accused, and confirmed that the man did not lunge at the accused.

28She also testified that the accused was saying “sorry, sorry, sorry” and then the accused went inside. The accused generally confirmed these events but testified that the man who had approached him said “I should hit you”. The accused also testified that he went inside quickly because he was concerned for his safety in part because the man was very angry with him.

29The accused then testified that he went to his parents’ house because he was concerned that this man was going to come back and harm him. The accused was arrested at his parents’ house and interviewed by police the next day.

30In the meantime, the police had been called by V.V.’s parents. An officer, Officer Feeley, was dispatched to the scene and interviewed the children. Although Officer Feeley did not testify, footage from her body worn camera was used to refresh the girls’ memories.

The Applicable Legal Principles

There are three legal issues that must be considered in this case:

a) The principles in R. v. W.D.
b) The approach to be adopted to the evidence of the two child witnesses
c) The question of whether an adverse inference should be drawn in this case.

I will deal with each issue in turn.

a) The Principles in W.D.

The accused testified in this case. As a result, I must be mindful of the framework set out in R. v. W.D., [1991] 1 S.C.R. 742. That framework, as modified by subsequent case-law, requires me to engage in a four-step process:

• If I believe the accused’s evidence that he did not commit the offence, then I must find him not guilty.
• If I cannot decide what I believe, I must find the accused not guilty.
• Even if I do not believe the accused’s evidence, if it leaves me with a reasonable doubt about an essential element of the crimes he is charged with, I must find him not guilty.
• Even if the accused’s evidence does not leave me with a reasonable doubt, I can only convict him if the rest of the evidence I accept proves his guilt beyond a reasonable doubt.

The W.D. formula is not an incantation. However, in a case of this nature, it is important to ensure that the evidence is carefully viewed through the W.D. lens. Otherwise, there is a risk that the fact-finding exercise devolves into a credibility contest.

In a case such as this, the determination of guilt or innocence cannot devolve into either a credibility contest between the witnesses or a bipolar choice between competing prosecution and defence evidence. (R. v. Johnson, 2011 ONSC 195, paras. 123-129)

b) The Approach to the Evidence of the Children

Both M.O. and V.V. were seven when these events took place. M.O. was eight and V.V. was nine when they testified before me. Both of them testified for several hours. They were both fidgety at times in their testimony, but they were mostly able to answer the questions and focus on what was being asked of them. I also conducted an inquiry and was satisfied that they knew the importance of telling the truth.

In R. v. B.(G.), [1990] 2 S.C.R. 30, para. 48, the Court made the following observations about the evidence of children:

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

This analysis was adopted and expanded on in R. v. W.(R.) [1992] 2 S.C.R. 122. In that case (at paras 23-24), the Court noted that there had been two significant changes in the treatment of the evidence of children over the past number of years. First, the old common law belief (sometimes encapsulated in statute) that the evidence of children was inherently unreliable was no longer applicable. Second, a “new appreciation” had developed for the fact that it may be wrong to simply apply adult tests for credibility to the evidence of children.

That being said, however, the evidence of the children still needs to be carefully assessed to determine how credible and reliable it is.

c) Adverse Inference

In addition to applying these two legal principles to my analysis of the evidence, the accused’s counsel argues that an adverse inference should be drawn as a result of the Crown’s failure to call V.V.’s mother, M.V., her brother, K.V., and the police officer who first interviewed V.V.

Counsel for the accused argued that there was a real concern that the evidence of V.V. and M.O. was tainted because they reported these events to K.V. and M.V. before they reported the events to the police. As a result, counsel for the accused argues that I should draw an adverse inference from the Crown’s failure to call all of these witnesses to disprove the defence’s concern that the evidence of V.V. and M.O. was tainted.

The Crown argues that the claim that the evidence of V.V. and M.O. was tainted is meritless. The Crown also argues that I heard from the witnesses who were in the tent, and the explanations that I received about what happened in the tent were all the direct evidence I needed of the actual events. No one else was present. Finally, the Crown argues that, had the defence wanted to explore the issue of tainting, it was open to them to do so. The Crown had subpoenaed all of the relevant witnesses and made them available to the defence.

The test for whether an adverse inference should be drawn is a high one. It starts with the basic proposition that the Crown is under no obligation to call a witness it considers unnecessary to the prosecution’s case. (Lemay v. The King, [1952] 1 S.C.R. 232)

In R. v. Zehr, the Court stated (at paras 6 and 13):

While permissible in some cases, comment on the failure to call a witness should only be used with great caution. This kind of comment from a trial judge can seriously affect what might otherwise be the jury's assessment of the credibility of those who do testify and perhaps, more importantly the integrity of the case. Such comment and instruction whether referable to the prosecution or the defence is really a comment on the conduct of the case and the instruction gives it some evidentiary significance. There are many reasons why counsel may choose not to call a witness, and our courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case. Often a witness is not called, and if the reason was known it would not justify an instruction that an adverse inference might be drawn from the witness not being called. Of importance under our system, counsel is not called upon, or indeed permitted, to explain his conduct of a case.

In jury trials, the Courts have found that an adverse inference instruction is an exception rather than the rule. (R. v. Lo, 2020 ONCA 622, para. 162). This instruction is an exception because it may have a serious and unwarranted impact on the trier of fact’s credibility assessment. Similarly, when judges are the triers of fact, we should be reluctant to draw an adverse inference for the same reasons.

Whether an adverse inference should be drawn is a fact-specific question. This brings me to the facts of this case. The only direct evidence that I have of tainting is:

• There are inconsistencies in the girls’ stories.
• K.V. reported this incident to M.V. before either of the girls did.
• V.V. testified that K.V. likes to lie.
• M.V. transported both girls to the police station.

However, both girls were asked about whether they were coached to say certain things, and both denied any coaching. Further, there are differences between M.O. and V.V.’s versions of events. As a result, there is nothing to found an allegation of tainting on. The fact that M.V. drove both girls to the police station is, without more, of no assistance to the accused’s argument. Similarly, even if I accept V.V.’s evidence that her older brother likes to lie, that does not change the question of what V.V. saw and experienced in the tent. Even if K.V. reported the events to his mother first, and made mistakes in his reporting of those events, it does not mean that the evidence of V.V. (or M.O.) is tainted.

More generally, the accused’s argument is, in essence, that there could be tainting of the girls’ evidence because they were exposed to other people before they told their story to the police in an interview room. Since the Crown didn’t call everyone who discussed anything about this incident with the girls before they gave their police statements, the accused’s counsel suggests that I should draw an adverse inference, conclude that the evidence was tainted and find that it is unreliable. I decline to do so.

Adverse inferences are, as I have noted above, the exception. On these facts, drawing an adverse inference would put the Crown in a position where they would have to call a series of collateral witnesses merely to avoid an adverse inference. That is not in keeping with the purposes of a trial. Put another way, I accept the Crown’s explanation for not calling these witnesses. The adverse inference is generally drawn when there is no plausible reason for non-production. (R. v. Ellis, 2013 ONCA 9, para. 48). There is more than a plausible reason for non-production in this case. Their evidence was not necessary to what I have to determine, as none of them had any direct evidence about what happened in the tent. Further, the defence’s claims that there could be tainting are, at best, speculative.

For the foregoing reasons, I am not prepared to draw an adverse inference from the Crown’s failure to call K.V., M.V. or Officer Feeley.

Analysis and Decision

a) The Essential Elements of the Offences

The accused is charged with one count of sexual assault under section 271 of the Criminal Code and one count of sexual interference under section 151 of the Criminal Code. The elements of these offences are, on the facts of this case, very similar. For sexual interference I must be satisfied beyond a reasonable doubt that:

• V.V. was under the age of sixteen at the time of the incident;
• That the accused intentionally touched V.V.; and
• That the intentional touching was for a sexual purpose.

For a charge of sexual assault, beyond the intentional touching for a sexual purpose, there is an element of consent. However, in this case V.V. is too young to consent. The first element of the charge of sexual interference is made out in this case, and the other two elements are the same as for the charge of sexual assault.

b) Weighing the Evidence

As I have set out above, it is important not to allow the trial to become a “credibility contest” between V.V. and M.O. on one hand, and the accused on the other hand. I need to apply the framework in W.D. To do that, I need to consider all of the evidence together.

I start my consideration with two related issues that flow from the fact that there were inconsistencies in the evidence of M.O. and V.V. The two related issues are whether the evidence of the girls was tainted and the significance of the inconsistencies. I have already explained why I am of the view that there was no tainting. This brings me to the inconsistencies.

The inconsistencies in the girls’ evidence were, in my view, of some significance. In particular, V.V. testified that the accused grabbed them when she was playing in the high chair, covered their mouths so that they couldn’t scream and dragged them towards his house. M.O. just testified that the accused grabbed their hands to walk them towards his house.

On the witness stand, both girls acknowledged that they lied about these events. The fact that they lied is also obvious from the videos from the catwalks that these statements were not true. While I am troubled by this evidence, it does not take away from the believability of the girls’ evidence on what happened in the tent for two reasons. First, the girls’ evidence of what happened inside the tent is consistent, both with each other and with some of the evidence that the accused gave. Second, the girls were candid about the fact that they had lied about the grabbing and, in V.V.’s case, the covering of her mouth. I am also mindful of the fact that it relates to more peripheral events. The key evidence in this case is what happened inside the tent.

There were also inconsistencies in V.V.’s evidence about where the accused touched her when she was sitting on his lap, as well as a couple of other issues about what happened in the tent. I will address those issues below.

The other inconsistencies in the girls’ evidence, such as M.O. confusing the names of her parents and her uncle and aunt, are far more minor and do not concern me. They are the type of thing that does not detract from the witness’s overall credibility and reliability.

Then, there is the accused’s evidence. I did not believe the accused’s evidence and it does not raise a reasonable doubt. I will now explain why.

First, the accused was cross-examined about why he was talking to the girls. At trial, he stated that he must have said to the girls what are you doing, as he wondered why they were playing on the road. However, he told the police that the conversation had started because his means of transport is an electric bike and people tend to stop and talk to him about his electric bike. The problem with the accused’s statement to the police (a prior inconsistent statement) is that the contemporaneous video from both streets shows the accused walking and there is no sign of his e-bike. In my view, the accused has knowingly provided this false explanation to the police to excuse and minimize his behaviour.

Second, the accused originally testified that he was walking around that afternoon looking for things that people had thrown out (garbage) that he could collect, use or repurpose and that is how he encountered the girls. There are two problems with this evidence. First, the video surveillance directed at the street where V.V. lived shows the accused arriving at the junction between the catwalk and the sidewalk and looking in the direction where the girls were playing for approximately twenty-five seconds. There was no good explanation as to why the accused was looking in the direction of the girls from the catwalk for this length of time if he was looking for garbage in front of peoples’ houses. Second, the accused did not provide this explanation to the police when he was being interviewed by them the day after the incident.

Third, there is the accused’s clearly inconsistent explanation as to whether the girls were invited back to his house or not. By the time we reached closing argument, the accused’s counsel was not really challenging the evidence that the girls had been invited back to the accused’s house. However, the accused had originally testified that he did not want them to come back to his house and that the girls had just followed him.

The accused’s original evidence was inconsistent with the video evidence. The video showing V.V.’s street indicates that the accused was walking behind M.O. and in front of V.V. It also indicates that, when he got to the corner of the sidewalk and the catwalk, he stopped and waited for V.V. to catch up to him. In my view, the accused testimony that he did not invite the girls back to his house is inconsistent with both their testimony and what is seen on the videos and I reject it.

In addition, in cross-examination, the accused denied that he was waiting at the intersection of the sidewalk and the catwalk for V.V. to catch up with him. Having viewed the videotape, I am of the view that the only reasonable conclusion that can be drawn is that the accused was waiting for V.V. to catch up to him because he had invited her and M.O. over to his house. His statements otherwise are falsehoods that have been made up to minimize his responsibility in this case.

Fourth, there is the accused’s evidence in respect of what he told K.V. Although the accused testified that the girls were following him and had not been invited to his house, he also testified that he had told K.V. that he could not come this time, and maybe another time. This evidence contradicts the accused’s testimony that he did not want anyone to come back to his house. It also indicates that he was interested in having the girls come with him, but did not want K.V. to come with him.

Finally, I should note that the Crown argued that the accused’s reactions when he was confronted by the father of one of the girls showed a consciousness of guilt and should be used as post-offence conduct. I disagree. While the accused was saying “sorry, sorry, sorry” to the child’s father, that does not indicate that he had committed any crime. Instead, the accused may very well have understood that the mere invitation to two seven-year-old girls to come into his backyard was improper and he may have been apologizing and/or concerned about that conduct being discovered. I take nothing from either this conversation or from the accused’s decision to go to his parents’ house that evening.

Findings of Fact

As I have set out at paragraphs 15 to 30, most of the facts in this case are not now in dispute. Those facts are:

• The accused approached V.V. and M.O. while they were playing on the street and began a conversation with them.
• In that conversation, the accused asked V.V. and M.O. what they were interested in and they told him baby clothes.
• The accused then invited V.V. and M.O. back to his house to see whether he had any baby clothes that they might be interested in.
• V.V. and M.O. went with the accused to his house.
• They were originally accompanied by K.V., but the accused told K.V. that he was not invited and perhaps he could come another time.
• V.V. and M.O. were walking with the accused, and were not following him home uninvited. They were also not dragged into his backyard and he was not holding their hands at any point that I saw.
• V.V. and M.O. were in the backyard of the accused’s house for 3 minutes and 11 seconds. This is the amount of time from the moment that they disappeared from view on his driveway until they reappeared.
• V.V. and M.O. were inside the tent in the accused’s back yard with the accused.
• The accused was, at least at one point, sitting in a rocking chair in the tent and, while he was sitting there, V.V. ended up in his lap.
• Within about a minute, V.V. and M.O. left the tent, telling the accused that they had to go and check on their brothers.

The Crucial Question

This brings me to the crucial question in this case, which is what happened in the tent right before V.V. sat on the accused’s lap and while she was sitting on his lap. At this point, I need to step back and consider the evidence as a whole. We have two different stories. The key differences are whether V.V. climbed up on the accused’s lap on her own or whether he invited her to climb up on his lap, whether his private parts were exposed and under his shirt when V.V. sat on his lap and whether or not the accused put his hands on V.V.’s chest.

Given the inconsistencies and falsehoods in the accused’s testimony that I detailed above, I do not believe his assertion that V.V. climbed up on his lap on her own. However, my disbelief of the accused’s evidence alone is not sufficient. I must also consider the evidence of the girls. Based on all of the evidence, I find that the accused invited V.V. up onto his lap for the following reasons:

• On the evidence I have, there is no good explanation as to why V.V. would have wanted to get onto his lap without being asked. Indeed, V.V. testified that she had been pulled up onto the accused’s lap.
• The accused could not explain why, given the size difference between him and V.V., he could not stop her from climbing up on his lap and could only hold her by the shoulders and the waist to prevent her from contacting his chest. If he was worried about V.V. being in his lap, he could have put her down and stood up immediately.
• A related point is that the accused testified that he was “nudging” V.V. off of his lap. Again, given the size difference, he could have put her down and stood up immediately. He did not need to “nudge” her off of his lap.
• The accused testified that the entire time that V.V. was in his lap was only about ten seconds. I do not accept this estimate of the time for three reasons. First, the girls were in the backyard for three minutes. It is unlikely that the interaction in the tent with the accused on the chair lasted only ten seconds. Second, the rest of the accused’s evidence on this point is not believable. Third, the movement described by the accused, in which he had his hands on V.V.’s shoulders, moved them to her waist and then tried to “nudge” her off of him would have taken longer than ten seconds.

I am also persuaded beyond a reasonable doubt that the accused had taken out his penis from his pants and put it under his shirt before he sat down on the rocking chair. In reaching that conclusion, I should address one issue that arose in M.O.’s cross examination. M.O. stated that the accused unzipped his fly. On cross-examination, the accused’s counsel suggested to M.O. that the accused had been wearing track pants. However, the accused did not ever testify as to what type of pants he had been wearing, either in chief or in cross. I also cannot tell from looking at him on the videos what type of pants he was wearing.

On this point, I have given the accused the benefit of the doubt and accepted that he was wearing track pants on the day of the incident. However, even if M.O. was mistaken about the fact that the accused pulled down his zipper to expose his private parts, the motions required to pull his pants down would have been generally the same and the event happened very quickly. As a result, I do not view this inconsistency, assuming it existed, as detracting from M.O’s version of events.

I accept, beyond a reasonable doubt, that the accused pulled his penis out of his pants. I reach that conclusion for the following reasons:

• Although M.O. did not know the word penis, she provided an anatomically correct description of what she called “the balls”. Specifically, she testified that she saw two round things, one on each side, and a long piece of skin in the middle. She also confirmed that boys have these parts and girls do not.
• M.O. was not shaken in either this description, or in the fact that the accused took his balls out of his pants during cross-examination.
• V.V. testified that she did not see any of this, but that she did see M.O. look “disgusted” during this interaction. This evidence fits M.O.’s evidence that she saw the accused’s balls, or private parts.
• The accused’s denial that he pulled his penis out has to be taken in the context of all of the other lies that he told in order to minimize his involvement in this incident. Given the problems with the accused’s evidence (as described earlier in these reasons), I do not believe the accused’s story.

In reaching these conclusions, there is one point that I must address. During her interview, M.O. did not tell Officer Saran that she had seen the accused’s “balls” until well into the interview, when she was prompted to remember what she had told the officer who had interviewed her on the street earlier. Counsel for the accused argues that, because M.O. was told by Officer Saran to tell the truth and she did not immediately volunteer this information, then it was a lie. I disagree. In my view, this is the type of evidence that would be difficult for a seven-year-old girl to provide, and she might very well need to be reminded about it.

I also accept that the accused ran his hands down V.V.’s body from her shoulders to her waist and, in doing so, had his hands on V.V.’s chest. I acknowledge that there is inconsistent evidence on this point. However, even the accused accepts that he had his hands on V.V.’s waist and shoulders. The chest area is between the two and it would be natural for him to have moved his hands along V.V.’s chest area.

In her police statement, V.V. originally testified that she did not remember the accused touching her anywhere other than her waist. In her evidence before me, V.V. was shown body camera footage from an interaction she had with Officer Feeley on the afternoon of that incident. In that footage, V.V. tells Officer Feeley that the accused touched her on the chest and stomach.

Although forgetting this in her original police interview is a concern for the Court, that concern does not raise a reasonable doubt for three reasons. First, the accused himself is prepared to acknowledge more contact than V.V. originally advised the police officer in her section 715.1 interview. Second, this version of events was consistent with what M.O. said. Finally, the version of events I have accepted is consistent with what V.V. said to the officer when she was first questioned about these issues.

This brings me back to the elements of the offence. As I have said above, V.V. is under the age of sixteen. I am also satisfied beyond a reasonable doubt that the accused touched V.V. and that the touching was for a sexual purpose. If the touching was not for a sexual purpose, then the accused would not have had his penis out of his pants and under his shirt when he engaged in the touching.

Conclusion

For the foregoing reasons, I am satisfied beyond a reasonable doubt that the accused is guilty of both counts on the indictment.

Sylvain Lemay