Restriction on Publication

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code. This version has been anonymized for publication.

Reasons for Judgment

Owen Rees J.

Released: April 16, 2025

Overview

[1] Victor Perez is charged with several sexual offences against H.D., which he is alleged to have committed when he was 36 and H.D. was 12.

[2] Specifically, Mr. Perez is charged with invitation to sexual touching, sexual assault, sexual interference, two counts of luring a child, and making child pornography. He is also charged with failing to comply with a prohibition order not to seek, obtain, or continue any employment or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16.

[3] Mr. Perez initially elected to be tried by a judge and jury. Shortly before the trial was scheduled to begin, with the consent of the Crown, Mr. Perez re-elected to be tried by judge alone.

[4] The Crown called Detective Renee Stewart, the investigating officer with the Ottawa Police Service’s Child Abuse Team; Detective David Fong, an officer with the Ottawa Police Service’s Computer Forensic Unit; H.D.’s grandmother; and H.D.

[5] Mr. Perez testified in his defence.

Agreed to and Uncontested Facts

[6] The parties filed an Agreed Statement of Facts. In addition, the defence indicated in its written closing submissions that the following facts are not in dispute.

How Mr. Perez and H.D. Met

[7] In May 2022, Mr. Perez had been released from prison on parole for a previous sentence. He resided at Kirkpatrick House, a halfway house in Centretown on Maclaren Street in Ottawa. This residence is a short distance from Dundonald Park in Centretown.

[8] H.D. resided with her grandmother in Centretown. She frequented Dundonald Park with her friends on a regular basis from May to August 2022.

[9] Dundonald Park is bounded by Somerset Street to the north, Maclaren Street to the south, Kent Street to the east, and Bay Street to the west. The park has a playground, open grass areas, and a cement area that has picnic tables and chess tables, as well as benches. Adults and teenagers frequent the park. The park is often used for drug and alcohol consumption.

Exchange of Text Messages from Mr. Perez’s Phone

[10] Mr. Perez and H.D. met while at the park in May 2022. H.D. gave her phone number to Mr. Perez and the two exchanged text messages in May and June 2022.

[11] Only some of the text messages sent between the parties were obtained by police. These were recovered from pictures of H.D.’s phone taken by H.D.’s grandmother and forensically recovered from Mr. Perez’s phone. Mr. Perez admitted to sending all “native” text messages to H.D. from the phone number 613-252-3456, which was his mobile phone.

[12] Some of these text messages sent by Mr. Perez to H.D. were sexually explicit. They included statements by Mr. Perez of sexual acts he wished to perform with H.D.

In-person Interactions at Dundonald Park

[13] Mr. Perez and H.D. saw each other at Dundonald Park numerous times. H.D. could recount three such occasions. Although H.D. testified that the second and third occasion could have been either on different days or at different times on the same day, it is uncontested that they were separate occasions.

[14] The first was their initial meeting when Mr. Perez asked H.D. for her phone number. The second was when Mr. Perez touched H.D. on the leg. The third was when Mr. Perez showed H.D. and her friend his new car.

[15] On this last occasion, Mr. Perez took photos of H.D. from behind. These photos form the subject matter of the charge of making child pornography.

[16] Mr. Perez admitted that those three occasions occurred, but his account differed in some ways from H.D.’s.

TextNow Messages

[17] In June 2022, H.D. received messages from an unknown number. This person sent sexualized messages to H.D., including asking her for naked photos of herself, inviting her to touch the sender of the messages sexually, and discussing sexual activity this person wanted to engage in with H.D.

[18] The messages were sent from a TextNow account and some of the messages were found on Mr. Perez’s mobile phone and tablet. Some messages were duplicated between his devices, and other messages appeared on only one device.

[19] To be clear, although there is no dispute that the TextNow messages were found on Mr. Perez’s cellphone and tablet, Mr. Perez denies that he sent the TextNow messages in June 2022.

Subsequent Interactions

[20] On June 10, 2022, Mr. Perez had his parole revoked and was re-committed into custody. He returned to Kirkpatrick House on July 21, 2022, and resided there until he was arrested on August 4, 2022.

[21] Upon his release, he did not communicate with H.D. until July 31, 2022. He texted her both through his phone’s native text messages and from the TextNow account on July 31 and August 1, 2022. Eventually, H.D. stopped responding to Mr. Perez.

[22] Mr. Perez and H.D. saw each other at Dundonald Park in or around August 3, 2022. They did not speak to each other or hang out together.

Issues

[23] In addition to issues specific to individual counts, the defence suggests that two cross-cutting issues must be decided in determining whether the Crown has established guilt beyond a reasonable doubt. First, has the Crown established that Mr. Perez was the author of the TextNow messages to H.D. in June 2022 (Counts 1, 4, and 5)? Second, does the defence of mistake of age apply to Mr. Perez (Counts 1, 3, 4, and 5)? I note that Mr. Perez did not raise a mistake of age defence in respect of Count 6, that is making child pornography.

[24] I agree that adopting the issue-driven structure proposed by the defence is analytically helpful. I underline, however, that by considering whether the defence of mistake of age applies to Mr. Perez before considering whether the Crown has established the elements of the offences charged, I have not shifted the burden onto the accused. The defence of mistake of age was a central feature of the trial, and addressing the issues in this way avoids unnecessary repetition in the analysis of the individual counts below.

[25] Therefore, I will structure my analysis around the following issues:

a. Has the Crown established that Mr. Perez was the author of the TextNow messages to H.D. in June 2022?

b. Does the defence of mistake of age apply to Mr. Perez?

c. Has the Crown proven beyond a reasonable doubt that Mr. Perez committed each of the offences?

Analysis

Burden of Proof

[26] The Crown bears the burden of proving each element of the offences charged beyond a reasonable doubt. This burden never shifts to the accused. In considering the totality of the evidence, I have applied R. v. W.(D.), [1991] 1 S.C.R. 742. The Court of Appeal for Ontario has extended the principles in W.(D.) to apply whenever the court is presented with evidence inconsistent with guilt, whether adduced by the Crown or by the defence (through cross-examination of the Crown’s witnesses or through a defence witness): R. v. B.D., 2011 ONCA 51, para 105. In sum:

a. If the trier of fact believes the evidence inconsistent with guilt, they must acquit.

b. If the trier of fact does not believe the evidence inconsistent with guilt but is left in reasonable doubt by it, they must acquit.

c. Even if the trier of fact is not left in doubt by the evidence inconsistent with guilt, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused based on the evidence which they do accept.

Assessment of Credibility and Reliability

[27] The term “credibility” has to do with a witness’s veracity, honesty, or truthfulness. The term “reliability” has to do with a witness’s ability to accurately observe, recall, and recount the events at issue: R. v. H.C., 2009 ONCA 56, para 41. I must consider both dimensions of a witness’s evidence: R. v. Morrissey. After assessing credibility and reliability, I may believe all, some, or none of a witness’s evidence: R. v. François, [1994] 2 S.C.R. 827.

Assessment of Evidence of a Child Witness

[28] H.D. was 12 at the time of the alleged offences. She was 15 when she testified. I must therefore assess her evidence as a child witness. Courts have recognized that children should not be held to the same exacting standard of an adult witness: R. v. B.(G.), [1990] 2 S.C.R. 30. A child witness should be assessed by use of criteria appropriate to the child’s mental development, understanding, and ability to communicate: R. v. W.(R.), [1992] 2 S.C.R. 122. There is no fixed formulaic approach to the assessment a child’s evidence – the trier of fact should assess both the strengths and weaknesses using common sense. Negative stereotypes should not be applied to the evidence of children: R. v. Marquard, [1993] 4 S.C.R. 223.

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Disposition

[329] In sum, I find Mr. Perez guilty of Counts 1 through 6, and I find him not guilty on Count 7.

Justice Owen Rees

Released: April 16, 2025

[1] Mr. Perez’s evidence was that he was released from custody between July 20 and 22, 2022, and although not admitted for the truth of its contents, the sign in sheet at Kirkpatrick House records Mr. Perez as having signed in on July 20, 2022. Nothing turns on the precise dates, however.

[2] S. also went by the name R. In these reasons, I use the name used by the witness in their evidence.