R. v. T.K, 2025 ONSC 1932

R. v. T.K, 2025 ONSC 1932

OSHAWA COURT FILE NO.: CR-23-16341

DATE: 20250327

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.K

Defendant

P. Affleck, for the Crown

J. Cacciavillani, for the Defendant

HEARD: March 24 and 25, 2025

REASONS FOR JUDGMENT

There is a ban on publication in this matter pursuant to s. 486.4 of the Criminal Code of Canada.

SPEYER J.

1. Introduction

1The defendant is charged with one count of sexual assault and one count of sexual interference. He has pleaded not guilty to the charges. The charges allege that he sexually abused L., the daughter of his domestic partner, between January 1, 2018, and September 6, 2022.

2During the material time, the defendant and his son, A., lived with the complainant, L., and her mother, K. The defendant had assumed the role of stepfather to L. L. was eight years old when she disclosed the allegations to her mother. The disclosure occurred after K. walked into the bedroom she shared with the defendant and saw him on the bed with L. with one hand under a blanket on L. and the other hand in his pants.

3The relationship between the defendant and K. ended abruptly when L. told her mother that the defendant had touched her in a sexual manner. K. took L. to the police station, and the defendant was arrested in short order and charged with the offences before the court.

4Three witnesses testified during this short trial: L. and K., and the defendant. The defendant testified that the acts described by L. and K. did not occur.

2. Undisputed Background Facts

5The contextual facts of this case are not in dispute. A summary of those facts will serve to facilitate understanding of the disputed facts.

6K. started dating the defendant several months before he moved to live with her in 2018, K. was living with her parents at the time, and so she moved with the defendant into the home of her friends. L. also moved there, and after a few months, the defendant’s son, A., also moved in. I will refer to the unit composed of the defendant, K., L., and A., as “the family”. Nothing is alleged to have occurred during the time that the family lived with those friends.

7After about a year, the family moved to live in a house with K.’s parents. Once there, the family lived as an integrated blended family. The defendant took an active role in the care of L. and his son, A. He took on the role of a step-father to L.

8The family shared a house with K’s mother, step-father, and brother. The defendant and K. shared a bedroom in the basement, and A. had his bedroom in the basement. L.’s bedroom was on the second floor, as it was when she lived there previously. The remaining adults had their bedrooms on the second floor. The main floor appears to have been shared kitchen and living space.

9When the defendant moved in with K., L was about five years old. A. was about 7 years old.

3. The Governing Legal Principles

10Before I turn to the evidence, I wish to say a few things about the law that governs my decision.

(i) The presumption of innocence and the burden of proof

11My decision is not about whose evidence I prefer. My decision may not be based on a choice between the evidence of the witnesses called by the Crown and the evidence of the defendant. Rather, my decision must be based on the principle that the crown is required to prove the allegations beyond a reasonable doubt.

12The defendant is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.

13The defendant started this trial presumed to be innocent of the charges against him. The presumption of innocence is only defeated if and when Crown counsel proves every essential element of an offence beyond a reasonable doubt.

14The obligation to prove the defendant’s guilt rests with the Crown. The defendant does not have to prove that he is not guilty.

15It is not enough for me to believe that the defendant is probably or likely guilty. In those circumstances, I must find him not guilty, because the Crown would have failed to prove his guilt beyond a reasonable doubt.

16The defendant testified that he did not do that which he is alleged to have done. If I believe his evidence that he did not commit the offences, I must find him not guilty.

17Even if I do not believe the defendant’s evidence that he did not commit the offences, if it leaves me with a reasonable doubt that he did what is alleged, I must find him not guilty because his guilt would not have been proven beyond a reasonable doubt.

18Even if the defendant’s evidence does not leave me with a reasonable doubt about whether he committed the offences, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

(ii) The assessment of evidence of children

19When children testify, their evidence is not to be assessed in the same manner as the evidence of adults. Children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding, and ability to communicate: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 24-26; R. v. P.S., 2019 ONCA 637 at paras. 23-26.

20Children do not perceive the world in the same way as adults. Children do not experience the world in the same way as adults. As noted by Wilson J. in R. v. B. (G.), at p. 55, “[w]hile 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.”

21While the evidence of children must be assessed in the context of their age and maturity, this does not lessen the burden of proof on the Crown. Proof beyond a reasonable doubt remains the standard for conviction, even though the complainant is young.

(iii) Motive to lie

22In this case, the defendant submits that the complainant had a motive to lie. She wanted A. and the defendant to be gone from her home, and therefore, knowing that a family member who sexually assaults another family member would be removed from the home, she made up the allegations to get what she wanted.

23The Court of Appeal has recently explained how trial judges must consider issues relating to motive to fabricate in R. v. Polemidiotis, 2024 ONCA 905, at paras. 59-62:

59Trial judges must consider issues relating to motive to fabricate with care. Trial judges are permitted to consider an absence of evidence of a motive to fabricate, in the context of the evidence as a whole, as a factor relevant to credibility: R. v. Gerrard, 2022 SCC 13, at para. 4; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38-44. As explained by Moldaver J. in Gerrard, at para. 4: “Absence of evidence of a motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie.”

60However, in considering an absence of evidence of a motive to fabricate, trial judges must take care to avoid three impermissible lines of reasoning. First, they must not equate an absence of evidence of a motive to fabricate on the part of a witness (i.e., no evidence either way) with a proven lack of motive to fabricate (i.e., positive evidence showing that no motive to fabricate exists): Gerrard, at para. 4; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 21-23; R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 121. The distinction is important because sometimes the motives of a witness remain hidden: Bartholomew, at para. 22; Batte, at para. 125; Ignacio, at paras. 31-32.

61Second, trial judges must not impose a burden on an accused to show that a complainant has a motive to fabricate an allegation because that would improperly shift the burden of proof from the Crown to the accused: Gerrard, at para. 4; Batte, at para. 121.

62Third, trial judges must not reason that the absence of evidence of a motive to fabricate conclusively establishes that a witness is telling the truth. Presence or absence of a motive to fabricate is only one factor to be considered in assessing credibility, and must be considered in the context of the evidence as a whole: Batte, at para. 121; Bartholomew, at para. 22.

24I have applied these principles to my analysis. I recognize that the defendant has no burden to show that the complainant had a motive to fabricate. I have considered L.’s strong dislike of A. as one factor to be considered in assessing her credibility and have considered that in the context of the evidence as a whole.

4. The evidence of the Crown witnesses

(a) L.

25L. is now 10 years old. She is in grade 5.

26L. was 8 years old in September 2022.

27L. provided a videorecorded statement to the police on September 21, 2022. That statement was admitted in evidence pursuant to section 715.1 of the Criminal Code. L. described the acts complained of in her statement and adopted the contents of her statement while she testified. She confirmed that she was trying to be truthful when she spoke to the police officer. The admission of the videorecording in evidence would not interfere with the proper administration of justice. Defence counsel did not oppose the admissibility of the videorecorded statement. Therefore, the videorecorded statement was admitted in evidence, and forms part of L.’s trial evidence.

28The questions asked of L. during her police interview were simple and open-ended. They were not of a leading nature. The officer explained to L. that she was required to tell the truth.

29In her video-recorded statement, L. testified that the defendant started living with the family when she was five and half years old, but that he did not do anything to her until she was about seven. L. appeared outgoing and chatty when she and the officer first spoke about inconsequential things, but she became reticent when the officer changed the subject of their conversation to the defendant.

30When the police officer first asked L. why the defendant was not living with her anymore, L. responded: “recently my mother found out that he’s been sexual offending me.” She explained that “it means touching inappropriately”. L was reluctant to tell the officer about that because “it just makes me cry”. L’s emotional presentation was consistent with her words. She became weepy. L. was asked what she meant when she said, “touching inappropriately”. She initially asked the officer to name some body parts, and L. would say yes or no. The officer properly declined that request, and L. said that “its kind of the breast and all under the stomach and stuff.” She clarified that she meant “in between legs”, and “butt”. L. said, “basically he touched all of them”. The officer asked L. to tell her as much as she could remember about the touching. L. responded: “I’ve been having fun lately and I don’t really remember anything about him”. The topic then changed.

31When the officer asked again about being touched by the defendant, she asked “can you tell me everything that you can remember about the first time that this happened?” L. responded: “I have no idea.” When L was asked to tell what she could remember about any time it happened, she responded “I don’t really remember a lot about [the defendant].” She said that it happened more than one time. L. said that it happened on her bed and on her mother’s bed, and that “he’d kinda like force me to do it”. L. demonstrated what she meant by that and demonstrated making a fist with her hand. She said that made her think that he was going to punch her and made her feel scared. She said that after he forced her to do it, she would do it, which she explained meant that she would “let him do his thing.” Although L. initially said that she could not remember what that thing was, when the officer said that it appeared that she did not want to talk about it, L. responded “exactly”, and asked if she could show it with her hands. L. explained that she would show something that her mother did, and L made a fist with one hand, but said that it was not a fist, rather, it was a vagina. She showed the officer with her finger on the other hand how the defendant’s finger touched her vagina on the inside.

32L. later told the interviewing officer that the defendant would “touch my ass a lot” and put his finger in her “ass crack”. She said that his fingers touched her vagina or ass, but no where else. She said that no part of her body touched his body. The defendant never asked her to do anything else. She told the officer that when the defendant touched her with his hand, his other hand was up his shirt or in his pants. She never saw the defendant’s private parts. She told the officer that the defendant forced her to take off her clothes, and that she would have to put her own clothes back on. She said that the defendant’s clothes stayed on. L. said that the defendant would immediately stop if someone walked in. Others who were home at the time would “normally be upstairs”. The touching happened at her bedtime, and at other times too.

33L. was unable to provide any account of any specific time when she was touched inappropriately by the defendant.

34L. did recall that the incidents happened more than once. They happened on her bed and on her mother’s bed. They would end when the defendant stopped.

35During her statement, L. explained that she was “really nervous”.

36In her police statement, L. explained that A. was “very annoying”. In cross-examination, L. acknowledged that it “was kind of stupid” that A. got a room downstairs but that “it is what it is”. She readily agreed that it was 100% fair to say that she did not like A. very much. He pushed her buttons, poked her, did “unnecessary things”, and told her that he would put her head through a wall or break her neck. That upset her. A. was also mean to her mother. He sometimes screamed at her mom and hit her. L. described her feelings about A like a stream or river of anger going through her body, or like her blood boils in anger, like cooking a stew. She testified that she did not want A. to live at her house, and that she told that to her mother many times. Her mother told her that A. could not leave, and that there was nothing that they could do. It really did not bother L. at the time. She testified that she would not do anything to get rid of him but would do the best that she could. A. asked her for some inappropriate photos. That did not really upset her because, in her words “I was fairly young, and he was fairly stupid.”

37L. remembered being told that no one should touch her private parts, that it was inappropriate and not something that should be done. She remembered being told that if a family member touched her without consent, they would go to prison or jail. She understood that if someone went to jail that they would be removed from their home.

38L. was articulate, responsive, candid, and spontaneous in cross-examination. She presented as entirely genuine and open about how she felt about things. She readily acknowledged her feelings about A.

39L. was open about her feelings in cross-examination. She testified that she was glad when her mother and defendant fought because she thought that they would break-up. She made no attempt to conceal or minimize her feelings about this. Her answers in cross-examination were credible.

40L. testified that she had a bedtime routine. Her bedtime was around 8:30. Sometimes it was with her mom, sometimes with the defendant, and sometimes with both. At bedtime, she was to be in her own bed by herself. Her mother or the defendant would be there for a short time. Sometimes, they tickled her stomach or scratched her back.

41L. was cross-examined about her preliminary inquiry evidence about when the defendant moved out of her house. At trial, she was clear that he moved out when she was eight. She stated that she was eight when she made her videorecorded statement. At the preliminary inquiry, in response to a leading question, she agreed that the defendant moved out when she was seven years old. When L. was shown her preliminary inquiry evidence about this, she was obviously surprised. She confirmed that the defendant moved out when she was eight. This inconsistency does not affect L.’s credibility or reliability about any material issue. There was no dispute at trial about L.’s age when she made her statement to the police or when the defendant moved out. L., who was nine years old when she testified at the preliminary inquiry, clearly made a mistake, in response to a leading question. Nothing turns on this.

42L. was also cross-examined about how she learned the expression “sexual offending”, words that she used in her videorecorded statement. At trial, she testified that her mother used that term, and that is “presumably how I learned”. L. was cross-examined about her evidence at the preliminary inquiry, where she testified that she knew the expression “for many years” and that “her brain will give her words that I learn over time”. When asked whether her mother taught her those words she responded, “I don’t think so.” At trial, L. said that she might have known that expression for many years. L. testified at trial that she did not think it was true that she learned the words over time. Her mother did teach her. L. testified that many years earlier, her mother had told her about something bad that happened to her, that she had been touched inappropriately by her father, and where he had touched her. L. said she was very young when her mother told her that. Her mother had told her the importance of using proper words to describe body parts. Her mother told her that her father had gone to jail, and she had never seen him again. Her mother was very paranoid about L. being touched inappropriately, and often asked L. if she had been touched inappropriately.

43L. testified that her mom asked her if anyone had touched her inappropriately, and L. said “yes”. L. was cross-examined about the exact words she used. She said she may have paused and did not use the word “except”. L. said that it was awkward. L. said that mom asked her specific questions about what the defendant did, and L. responded “yes” or “no”. L. agreed with the suggestion that her mom freaked out and called the police. After that the defendant and A. could not return home, and that made her happy.

44When defence counsel suggested that L. told her mother what she wanted to hear so that her mother would call the police and have the defendant and A. removed. L. rejected that suggestion. She said it wasn’t like that. Rather, because her mother asked, she answered her question. She rejected the suggestion that she manipulated her mother by using her mother’s fear of someone touching L. to have the defendant and A. removed from the house. L.’s rejection of this suggestion was firm and appeared genuine to me.

45In cross-examination, L. agreed with a suggestion put to her that during her videorecorded statement, she asked the officer to provide an example so that she could mirror or copy what the officer said. This was an unfair suggestion. After L. told the officer that the defendant had touched her between her legs and on her butt, the officer asked L. “what would he do? What happened?” L. did not ask the officer to provide an example of anything. She asked the officer: “What would be like a good explanation of how you like touch someone inappropriately?” The officer followed up by asking “Do you remember where this would happen?”. L. responded: “Normally in some sort of bed.” Taken in context, it is apparent that L. was asking the officer to clarify her question. L.’s affirmative answer in her evidence to the suggestion that she asked the officer for the explanation so that she could copy what the officer said does not cause me to doubt L.’s evidence. The officer made no suggestion to L. about what she should say about how she was touched.

46Defence counsel’s follow-up suggestion to L. was also unfair. It was suggested to L. in cross-examination that the officer suggested to L. that she was touched between her legs, and L. responded “yes” because L. wanted to copy what the officer said. What actually happened during the videorecorded statement is that the officer asked L. in a non-leading way to explain what L. meant when L. said she was touched “all like under the stomach and stuff”. L. responded: “like in between the legs”. The officer did not suggest those words to L. The officer then asked L. what she called the part between her legs. When L. asked the officer what she called it, the officer said she called it a vagina. L. agreed that was what she called it. The extent of any suggestion by the officer to L. was that the part in between her legs is called a vagina. In re-examination, L. testified that she told the truth when she spoke to the officer and did not mimic what the officer said. I accept her evidence that she did not mimic or copy or mirror the officer’s words because that is clear from the videorecorded statement. L’s answers in cross-examination do not detract from her credibility or reliability. She was misled by the questions she was asked and clarified her answers in re-examination.

47L. testified in cross-examination that the last time something happened with the defendant was the day before she spoke with the police. She rejected the suggestion that the defendant was just lying in bed with her and rubbing her tummy.

48L. agreed with the suggestion that she believed she would be in trouble if she said that what she alleged did not happen. She explained that it did happen and that she could still feel it. She rejected the suggestion that she made up her allegations to have the defendant and A. removed from the house. She was adamant, and unequivocal, that the defendant had touched her as she described. Her answer that she believed that she would be in trouble if she said that the alleged offence did not happen is consistent with her position that the acts complained of did occur. It is also consistent with a belief that she would be in trouble if she revealed that she had lied. The statement is equivocal and the cross-examination about this does not assist me to decide this case.

(b) K.

49L.’s mother, K., testified. She described what she saw the day before she and L. went to the police. She could not recall the exact time when she made her observations, but it was dark, and time for settling down before bedtime.

50K. came downstairs and walked into the bedroom that she shared with the defendant. She saw the defendant and L. on the bed. The defendant was laying down with his head propped against the wall. L. was beside him, to his left, sitting against the wall. There was a blanket over L. that covered half of her body. There was no blanket over the defendant. The defendant’s right hand was down his pants, and his left hand was under the blanket, on L.’s body. K. could not see where on L’s body his hand was. L. was wearing clothing. L. was playing a video game. She appeared frozen.

51The moment K. walked in the door, the defendant took his hand out from under the blanket and said that he was tickling L. K. had not heard any laughter. K. had not asked him what he was doing. She saw the defendant move one of his legs in what she took to be an attempt to disguise an erection. She testified that she had seen him “readjust” himself many times and believed that she knew what he was doing.

52K. asked L. if she was okay. She responded “mhhmm”.

53K. was concerned that her experience of sexual abuse by her father influenced what she saw. She told L. to go to bed. She did not confront the defendant then and there because she believed he would lie to her. She thought that the best way to resolve things was to ask L. She did not talk to L. that night because the defendant was there and she did not feel safe.

54K. spoke to L. the next day after school when the defendant was still at work. At home, she said to L. “I am checking in to make sure that you are the only person that has touched your body”. K. testified that she really hoped that it was an accident or a mistake. But L. said, “no one has touched my body, except for [the defendant].” K. was devastated. K asked L. if it was an accident or if it was on purpose. L. broke down. She was crying and inconsolable. K. asked L. where the defendant touched her, and L. poked K. on her crotch with her foot. K. asked L. if she meant that she was touched there. To help L. show how she was touched, K. showed L. her right fist, with the knuckles pointing down, and the index finger and middle fingers protruding, to simulate a woman’s vaginal area. K. pointed to and told L. where, in this simulated vaginal area, she would “pee” and where the lips of the vagina were. K asked L. to show her where the defendant touched her. L. put her index finger between her mother’s two fingers, signifying that the defendant touched her vagina. This evidence was led by the Crown not for the truth of what L. said to K., but to show how the disclosure came about.

55K. then comforted L. and told her that she had to go upstairs to figure things out. K. spoke to her stepfather to ask for help to go the police station, and then called L.’s father to tell him what had happened. K. then went to the police station with her mother and L. L’s father joined them at the police station. K. did not speak to L. about the allegations after attending the police station because she was told not to.

56K. testified about the family’s bedtime routine. She or the defendant would talk to the kids, give them tickles and tuck them in. The defendant would often put L. to bed. It was normal in that context for him to cuddle or tickle L.K. testified that what she saw the night before she went to the police was not the normal bedtime routine.

57K. spoke with the children, perhaps when L. was seven years old, about not touching other people’s bodies, about consent, and about not lying. She “checked in” with the children, about once a year, to ensure they had not been touched. K. confirmed that she told L. that her father went to jail.

5. The evidence of the defendant

58The defendant testified. The defendant denies that he committed the offences alleged. He denies committing all the sexual acts described by L.

59The defendant’s evidence about the history of his relationship with K. and L. and their living arrangement and routine accords with the evidence of K. and L.. I will not review his evidence on these subjects because it does not conflict with other evidence. I will review the defendant’s evidence that relates to the alleged offences.

60The defendant confirmed that he played a parental role in relation to L. He testified that the children liked a very interactive bedtime routine. It involved playing video games, cuddling, tickling, and cracking the children’s backs.

61The defendant denied the allegations. He testified that he did not touch L. in the manner she alleged, and that he did not have his hand in his pants as alleged by K.

62The defendant testified in chief that he had “somewhat of a memory” about the night that K. walked in. He had a memory about it because it led to a large event in his life. He testified in chief that he remembered K. coming into the room and being in the bedroom with L., but there was nothing different about that evening. It was part of the usual bedtime routine.

63He testified that the only television in the downstairs part of the house was in the bedroom he shared with K. The only furniture in the bedroom was the bed. It was common for him to lay on the bed to watch television, and for L. to lay on the bed with him. It was common for them to cuddle or tickle there. It was common for L. to play her video games on the bed, but the defendant did not know if she was playing a video game the night that K. walked in.

64Almost all the defendant’s evidence about what happened the night that K. entered the bedroom and saw him on the bed with L. employed language such as “would have been”, and “would be safe to assume”. For example: “I would say it would be safe to assume that I was watching TV”, or “L. would’ve been on the bed playing with her Nintendo Switch and watching TV”. There was one thing about which the defendant did not so qualify his evidence in chief. He testified that when K. entered the bedroom, she asked what they were up to. He told her that they were hanging out on the bed, cuddling, and having “tickle time”. By his account, he said he was tickling L. in response to an inquiry from K. K. then joined them on the bed.

65The defendant testified, when asked in chief, that he believed that the allegations were made because L. resented his son, A.

66The defendant explained that he testified that things “would’ve” occurred, or that he “assumed” things occurred because he did not have a clear recollection of the “exact incidents”.

67In cross-examination the defendant testified that his evidence that he was tickling L. on the night before his arrest was based on an assumption about their usual pre-bedtime routine. He agreed with the Crown’s suggestion that he did not have a clear recollection of what happened on that particular date. He did not have a clear memory of K. walking into the room but knew that she “would’ve walked into the room”. He would have greeted K. when she walked into the room. That is what he would normally do. He did not recall their conversation “word for word”. He could not recall exactly what he said to K. He denied that he saw a look of concern on K’s face and, unprompted, said that he was tickling. He said that he could say that his statement was not unprompted because there was no reason for her to be concerned. He acknowledged that he did not have a memory of what was said during his exchange with K.

6. Analysis of the Evidence

68During her interaction with the police officer during her videorecorded statement L. was very spontaneous. She demonstrated a good memory about peripheral matters. She could describe her feelings. She was obviously reluctant to talk about what happened to her because it made her cry. It in fact, did make her cry. She did describe what happened to her. Her physical demonstration of where and how the defendant touched her employed a representation of her vaginal area that she was shown by her mother. Her demonstration occurred naturally in the context of what was being discussed. While her mother had shown her how to use her hand to model her vaginal area, the uncontradicted evidence is that her mother did not show L. how to demonstrate who did what in that area. The questions asked by the officer were not leading. Indeed, the officer took care not to ask leading questions, or to suggest answers. The account came entirely from L. Her account appeared genuine.

69In cross-examination, L., who was now two years older, did not waiver from what she alleged. She expressed, firmly and genuinely, that the defendant touched her as she described. Her rejection of suggestions in cross-examination that he did not do what she said was compelling. She appeared genuinely offended and angry that she would be accused of lying about this.

70I have already explained why the cross-examination of L. on parts of her preliminary inquiry evidence did not cause me to have any doubt about L.’s credibility and reliability.

71I believe L. and find that she told the truth to the police officer who interviewed her and to me. L. is an intelligent and articulate girl. She speaks as someone years older than she is. But her emotional presentation was that of a child her age. The emotions and feelings that she described and displayed were genuine. She did not filter her answers in any way to support her allegations. To the contrary, her answers to Crown counsel and to defence counsel were responsive and provided readily, without any pause to reflect on her answers.

72L.’s evidence was powerfully confirmed by the evidence of K., who saw the defendant on the bed, with one hand touching L. under a blanket, and one hand in his pants. The defendant removed his hand from L. and moved his leg in an apparent effort to “adjust himself” to hide an erection. K. did not see an erection but interpreted what she saw based on her previous experience seeing the defendant do that. Unprompted, the defendant said that he was tickling L. K.’s evidence about this was unshaken.

73No doubt, K. was very angry at the defendant. She made no attempt to hide that. But her anger did not assist me, one way or the other, in my assessment of her evidence. If what she said was true, then her anger is understandable. If what she said is false, then perhaps that is a reflection of her anger. I simply do not consider the fact that she is angry at the defendant to assist my assessment of her evidence.

74I believe the evidence of K. that she walked in on the defendant when he was touching L.’s body with one hand while the other hand was down his pants. I believe her that he offered an unprompted explanation for what she saw, in an attempt to explain it away. Her evidence was unshaken in cross-examination. She readily acknowledged what she actually saw and what she inferred. Her evidence that she really hoped that what she had seen was a mistake or an accident appeared to me to be entirely genuine.

75I do not believe the defendant’s evidence that he did not touch L. as she described. While I am entitled to reject the defendant’s evidence based on my acceptance beyond a reasonable doubt of the evidence of L. and her mother, there were features of the defendant’s evidence that contribute to my rejection of his evidence.

76In his evidence in chief, most of his evidence about what happened the night that K. entered the bedroom employed language such as “would have been”, and “would be safe to assume”. But the defendant did not so qualify his evidence in chief that when K. entered the bedroom, she asked what they were up to. He did not qualify his evidence that he told her that they were hanging out on the bed, cuddling and having “tickle time”. But his evidence about this changed in cross-examination.

77In cross-examination, the defendant could not recall his conversation with K. “word for word”. He could not recall exactly what he said to K. He testified that he could say that his statement was not unprompted because there was no reason for K. to be concerned. He acknowledged that he did not have a memory of what was said during his exchange with K. The defendant’s evidence about this in cross-examination was very different than his evidence in chief. I find that in his evidence in chief, the defendant presented an account that was untrue because he understood the incriminatory impact of K.’s evidence that, unprompted, he offered an innocent explanation for what K. saw because he knew that an innocent explanation was required. The explanation did not account for why his hand was in his pants. In cross-examination, confronted with his other evidence that consistently employed the language of routine-based assumptions, he had no choice but to acknowledge that his evidence in chief about his exchange with K. was not based on any genuine recollection.

78The defendant’s initial attempt to describe with precision the exchange between him and K. was undermined in cross-examination and demonstrates to me that he was more interested in presenting an exculpatory account of the events, that in candidly telling the truth. Such an evasion detracts from his credibility generally.

79While the defendant’s categorical denial of any sexual impropriety with L. was unshaken at trial, I reject his evidence about that. I reject it because he attempted to mislead me about his exchange with K. after she walked in on him and L. on the bed. I also reject his evidence because, after reviewing the evidence in its totality, I accept without reservation the evidence of L. and K.

80I also do not have a reasonable doubt that the defendant’s evidence may be true.

81I am satisfied, beyond a reasonable doubt, that the defendant did what L. says he did, and what K. saw him do, and find him guilty of the charges against him.

The Honourable Justice J. Speyer

Released: March 27, 2025

CITATION: R. v. T.K., 2025 ONSC 1932

PETERBOROUGH COURT FILE NO.: CR-16-2370