R. v. J.L., 2025 ONSC 2433

Ontario Superior Court of Justice
Date heard: December 9 and 10, 2024
Date of judgment: April 22, 2025
Before: Robin A. Bellows

Between:
His Majesty the King (Crown)
and
J.L. (Defendant)

Appearances:

• S. Hamel, for the Crown
• J. Ellery, for the Defendant

Publication Restriction Notice

INFORMATION THAT COULD IDENTIFY THE COMPLAINANT IN THIS CASE CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA, MADE BY JUSTICE ROBIN A. BELLOWS ON DECEMBER 9, 2024

Reasons for Judgment

Introduction

[1] The accused, J.L., is charged on a 3-count indictment with the following offences against the complainant, O.P.:

1. Sexual assault with a weapon, contrary to section 272(1)(a) of the Criminal Code of Canada between June 1, 2021, and June 30, 2021;
2. Sexual interference, contrary to section 151 of the Criminal Code of Canada between June 1, 2021, and June 30, 2021; and
3. Utter a threat to cause death, contrary to section 264.1(1)(a) of the Criminal Code of Canada.

[2] A 2-day trial was conducted before me – evidence was completed on the first day. The court heard evidence from five witnesses: the complainant, O.P.; two police officers, James Pigeau and Christian D’Alessandro; the accused’s mother, C.S.; and the accused, J.L. Crown and defence also provided an Agreed Statement of Fact regarding the evidence of H.L.

[3] The accused, J.L., met the complainant when she was dating his cousin, L.C., in 2021. At the time of the allegations, he lived with his parents in Kirkland Lake. All the offences allegedly occurred on a single date in June 2021, at J.L.’s apartment.

[4] The complainant, O.P., alleges that when she was 11 years old, she was sexually assaulted with a weapon and threatened by J.L. O.P. first mentioned the incident to the police on September 28, 2022, at the Joe Mavrinac Community Complex (“the Complex”), when an ambulance was called while O.P. was having a panic attack. Following that, she provided a statement to the police detailing her allegations of sexual abuse on October 3, 2022, and the accused was arrested on the evening of October 3, 2022. O.P.'s evidence is the basis of all counts of the indictment.

[5] J.L. testified and denied that he sexually abused O.P., that he used a weapon to sexually assault her, and that he threatened her. His position is that he did not commit any of the offences charged.

The Crown’s Case

Evidence of the Complainant, O.P.

[6] O.P. was born on November 27, 2009. At the time of the trial, she was 15 years old. At the start of her evidence, the Crown played her video statement, and the complainant adopted her statement. She testified further following her statement and was cross-examined by defence counsel. When I refer to her evidence, I will not distinguish between the video statement and her viva voce evidence, except where necessary to address inconsistencies between her statement, her evidence at the preliminary hearing, and the trial, as further discussed in this decision.

[7] O.P. testified that when the incident occurred, she was dating L.C., J.L.'s younger cousin. She testified that he knew her age because she had attended school with his cousins and had known them since junior or senior kindergarten.

[8] O.P. described attending his residence in June 2021. The entrance to his apartment was located at the back of the building, accessible via a steep set of stairs. She described the apartment as being very long and outlined various rooms within it.

[9] The complainant testified that on that June day, she and her boyfriend, L.C., visited the accused’s apartment. They went there to pick something up for L.C.’s (and the accused’s) grandmother, but she could not recall what. O.P. described getting tangled or tripped by a dog leash and twisting her ankle, which swelled and bruised. She sat in J.L.’s kitchen and iced her ankle. She testified that she had injured her ankle on many prior occasions. She knew it was not broken, but it was swelling and bruising.

[10] L.C. decided to obtain what was needed and return home to retrieve his twin brother, who would help O.P. to their residence, where she had planned to spend the night.

[11] O.P. testified that the accused offered her a drink while she was sitting in the kitchen. She initially accepted, but after J.L. appeared to put something in her drink and stir it, she declined. She testified that this made him mad.

[12] L.C. asked if she wanted to lie down while he went to get his brother to help. He helped her to J.L.’s bedroom, laid her down, and kissed her goodbye. L.C. was gone from the residence for 2.5–3 hours. O.P.’s evidence was that they arrived around 8:30 pm; L.C. was there for about 30 minutes and returned at about midnight. During the intervening 3 hours, O.P. and J.L. were alone in the apartment.

While Alone in the Apartment with the Accused

[13] O.P. testified that J.L. entered the bedroom approximately 20 to 25 minutes after L.C. left. When J.L. entered the room, he touched her uninjured ankle, and O.P. told him that she was not comfortable. J.L. then moved his hand further up her leg to her knee. Again, O.P. expressed her discomfort. Her evidence was that he continued to push his hand higher – to her inner thigh.

[14] O.P. testified that despite her protests, J.L. persisted. Ultimately removing her clothing, removing his clothing, kissing her, holding her down, and putting his penis into her vagina. O.P.’s evidence is that she cried throughout the assault. Her evidence was that her body went into shock. She recalled not knowing what to do. She was unsure whether he ejaculated; her evidence was that she did not think so because she took a pregnancy test following and was not pregnant.

[15] O.P. testified that, following the alleged penetration, the accused took a knife from his nightstand, held it to her throat and threatened to kill her if she told anyone what happened. He dressed and exited the bedroom. The complainant redressed herself.

[16] O.P. testified that although she believed that the knife was fake because it was dull, she was very scared. Her evidence was that she would have panic attacks when she saw him in the community.

[17] O.P. testified that the accused held her by her wrists/arms and that, following the assault, they were injured. She hid the marks from others by wearing long sleeves (hoodies).

First Disclosure to Persons in Authority

[18] On September 28, 2022, O.P. was at the Joe Mavrinac Community Complex with friends, including her friend H.L. O.P. testified that, while there, she saw the accused and began to have a panic attack. She felt she could not breathe, and she threw up. An ambulance was called. O.P. spoke with police and EMS at the Complex and was transported to the hospital.

[19] O.P. testified she first disclosed the allegations to police and EMS during this time at the Complex. She testified that, although she had previously had panic attacks on seeing the accused, this one happened in a very public location, and people were concerned.

[20] O.P. made a statement to police several days later, on October 3, 2022. It is that statement that was played and adopted in this trial.

Complainant’s Description of the Accused’s Apartment

[21] O.P. testified that J.L.’s apartment was on the second storey, around the back of the building. The exterior stairs were steep.

[22] O.P. testified that the apartment was long. She described various rooms – walking through the kitchen and the living room. The bathroom she used was off the kitchen. J.L.’s bedroom was further down the long apartment (at the back of the apartment). She was uncertain where J.L.’s parents’ room was.

[23] O.P. recalled sparse furniture in the bedroom, specifically the bed, the TV/gaming system, and a nightstand. She testified that the room had a large walk-in closet on the right as you entered and a door to another room further into the room.

[24] O.P. testified that while in the bedroom alone, she used the TV to watch Netflix. She also had her cell phone with her.

Agreed Statement of Fact of the Evidence of H.L.

[25] The court received evidence through an Agreed Statement of Fact from H.L. She stated that she was with O.P. at the Complex when O.P. started panicking and ran to the washroom as a result of seeing J.L.

[26] It further states that H.L. observed O.P. unable to breathe and throwing up. She gave O.P. water, but she would throw it back up. They stayed in the washroom for some time to avoid seeing J.L.

Evidence of Officer James Pigeau

[27] Officer James Pigeau testified that he was working the night shift on October 3, 2022. During that shift’s briefing, he learned that there were reasonable grounds for the accused's arrest on the charges before the court.

[28] He was familiar with J.L.

[29] Around 9 pm, Officer Pigeau partnered with another officer and attended J.L.’s residence. Officer Pigeau went around to the back of the residence and up the stairs to the apartment. He spoke with J.L.’s mother, C.S., who confirmed that he was home. J.L. attended at the door and spoke with the officers. He cooperated and accompanied the police to the detachment.

[30] Officer Pigeau testified that J.L. was arrested before getting into the police cruiser. He was read his rights and cautioned, and he understood both. The drive to the detachment was short – it was only a couple of blocks away.

[31] Officer Pigeau testified that while booking J.L. at the detachment, he appeared to be thinking and spontaneously uttered: “The only person I can think of that would say this would be O.P”, referring to O.P. Officer Pigeau testified that he told J.L. that he did not know what he meant by that. The officer did not ask J.L. any questions that led to that utterance, nor did he ask any questions after the utterance.

[32] The officer further testified that he did not mention O.P.’s identity at the time of J.L.’s arrest. Officer Pigeau acknowledged in cross-examination that he would not have been aware of any explanation J.L. may have provided to another officer subsequently.

Evidence of Officer Christian D’Alessandro

[33] Officer D’Alessandro testified that he responded to a call on September 28, 2022, just before 9:00 pm, involving a female having a panic attack at the Joe Mavrinac Community Complex.

[34] Upon attending the Complex, Officer D’Alessandro met the complainant, who advised him that she was having a panic attack after seeing her rapist from a year ago. This was the first time this officer heard of the allegations against the accused.

[35] Officer D’Alessandro testified that O.P. struggled to get words out and was visibly shaking. O.P. was transported to the hospital for a panic attack. The officer testified that he stayed at the hospital with her until 10:30 pm. He did not take a statement from her that night; he described her as “too worked up” to do that.

[36] Officer D’Alessandro testified that O.P.’s friend H.L. was with her that night. In addition to the officer and her friend, there were two paramedics with O.P.

Evidence Called by the Defence

Evidence of C.S.

[37] C.S. is the accused’s mother. J.L. resided with his mother and father at the time of the allegations, at the residence where the offences were alleged to have occurred.

[38] C.S. testified that her residence was at the back of the building, with an 11-step staircase outside to access the exterior door of their apartment. C.S. agreed that the stairs were steep and testified that she had complained to the landlord about them because they were coming off the building, and she “went down them.” Although not clarified, the implication was that she fell down at least some of those stairs.

[39] C.S. testified to the layout of the residence. She described it as having an alcove, then a kitchen, further in is a bedroom, then down a step into a sunken laundry room with a bedroom off of it that was used as a pantry, followed by the living room, and then a door on the left leading to J.L.’s room.

[40] She further testified that J.L.’s space used to have an entrance, but the landlord had altered it, requiring J.L. to enter through his parents’ space.

[41] C.S. testified that upon entering J.L.’s room, there was a bathroom on the right. The door to the bathroom did not latch. She testified that the room was obviously a bathroom but agreed on cross-examination that if the door was not open, one might reasonably assume it was a closet.

[42] She described the furniture in J.L.’s room. C.S. testified that he had a dresser at the foot of his bed, a nightstand, and an armoire that contained his Indigenous objects. She described a cabinet within the armoire with his Indigenous knife collection. Many of them were real, but some were replicas. She testified that J.L. knew that his knives were collectibles.

[43] Her evidence was that O.P. sprained her ankle while with J.L. and L.C. in June 2021. She testified that this incident occurred at the corner of Prospect and Poplar Streets. She received a call to attend at that location and drive O.P. back to her sister’s residence.

[44] C.S. denied ever being home when O.P. was in the residence with an injury or otherwise. In cross-examination, she testified that O.P. had visited her house once in June 2021, accompanied by L.C. and others. She denied that O.P. would ever have been there alone with J.L.

[45] C.S. testified that, during that time, she was following COVID-19 protocols and would not leave the residence except for medical appointments or to purchase groceries. She denied being out of the residence for more than 30 minutes. When asked in cross-examination if she had ever gone out of town, her response was, “Not in June.”

[46] C.S. testified that J.L. would never have visitors when she was not home. She described herself as his guardian on his disability pension. She told the court that J.L. had almost died as a child, and as a result, he had pain issues and could not feel extreme temperatures. She denied that it impacted him in any other way.

Evidence of J.L.

[47] J.L. testified in his defence.

[48] J.L. testified that his date of birth is June 30, 1996. The allegations are from June 2021. He would have been on the precipice of turning 25 at the time.

[49] J.L. described himself as being 6’6” tall and approximately 275 pounds in June 2021.

[50] He denies all allegations before the court.

The Accused’s Apartment

[51] J.L. testified that, although O.P. had been at his apartment, she had never been there alone with him, and she had not entered beyond his parents’ living room; that is, O.P. never entered J.L.’s bedroom, which was further into the apartment.

[52] J.L. testified that the stairs to the apartment were steep and were coming away from the building, causing them to wobble. He agreed it would be easy to lose footing on them, adding that the stairs were especially horrible in the winter.

[53] J.L. acknowledged having two dogs and testified that he would take them out on a leash. He denied that he ever took the dogs out while O.P. was visiting and that she would never have taken the dogs out.

[54] J.L. testified generally about the layout and contents of his bedroom. He described a bathroom on the right, near the door to his bedroom. J.L. initially testified that it was obviously a bathroom, but in cross-examination, he acknowledged that if the door was closed or partially closed, it might not appear to be a bathroom.

[55] J.L. described having a bed, a TV on a dresser at the foot of the bed, an armoire where he kept his Indigenous items, including his knife collection in a display case, and a nightstand.

[56] J.L. told the court that he did not allow people in his room because his cousins had a habit of taking things from him. He did not trust them. He would only allow people in his room whom he trusted not to steal his collectables.

The Complainant

[57] J.L. testified that he met O.P. in May 2021 at his aunt’s residence. He spent time with O.P. because she was dating his younger cousin, L.C., who was the son of his aunt. J.L. testified that O.P. only seemed to think he was nice if he bought snacks or drinks.

[58] J.L. described O.P. as approximately 5'2” tall and weighing about 100 pounds at the time.

[59] J.L. testified that O.P. had been dating L.C. for approximately seven months in 2021, and they broke up around mid-July of that year.

[60] J.L. denied ever touching her, testifying that he would never because he was raised properly. He testified that he would never put a knife on her neck and threaten her because he knew he could get charged and get in trouble.

[61] When asked what he would have said if O.P. asked him to touch her, J.L. testified that he would have said no because she was underage. He testified that underage meant 16 years and under.

The Complainant’s Sprained Ankle

[62] J.L. recalls a time in June 2021 when he was with O.P. and L.C., during which O.P. fell because of a pothole and sprained her ankle. J.L. testified that the incident occurred at the corner of Prospect and Poplar Streets. He further testified that he called his mother, C.S., to pick them up and drive O.P. to L.C.’s residence.

[63] J.L. stated that he knew this injury occurred in June because his mother’s birthday was May 30th, and it was a couple of days after her birthday.

[64] J.L. testified that O.P. did not injure her ankle at his residence on the stairs. J.L. denied ever taking the dogs out while O.P. was at his apartment.

[65] He testified that O.P. did not attend his residence with an injury to her ankle. She, therefore, did not put ice on her ankle while in his kitchen or his bedroom.

The Complainant at Joe Mavrinac Community Complex

[66] J.L. testified that in September 2022, when he attended the Complex, he was told that O.P. was in an ambulance because she had been in a fight.

[67] J.L. testified that he saw O.P. getting into the ambulance, but not before that. He testified that he had been playing darts at the Legion, and when he arrived at the Complex, the ambulance was in front.

The Accused’s Knife Collection

[68] J.L. testified that he had a knife collection that he considered Indigenous collectables. He had a cabinet where he kept them, and he would occasionally take them out, clean them, and put them away.

[69] J.L. testified that approximately 95% of his knives were authentic and sharp, but a few were replicas. The replicas were made of wood with a 2–3-inch dull blade. None were plastic. J.L. testified that he always put his knives away but might have forgotten to do so on one occasion.

Utterance and Subsequent Statement to Police

[70] The police attended J.L.'s residence on October 3, 2022, and he was arrested on the charges before the court. He was then willingly taken to the detachment in police custody. During the booking procedure, he spontaneously uttered that the only person he could think of who would say this would be the complainant.

[71] J.L. testified that he told the officer he believed O.P. only thought he was nice when he bought snacks or drinks. He also testified that his cousin had warned him that the complainant might make such an allegation because she had made similar allegations about other people.

[72] The accused provided a statement to a different officer later that night. He explained in that statement that in mid-July, after they broke up, L.C. told him that the complainant might make such an allegation.

[73] He explained that the complainant was the only female of that age with whom he would hang out. However, he also named two female cousins with whom he would spend time. He did not provide their ages.

[74] He testified that the police did not tell him who it was, only the charges and that it was in June 2021.

[75] In re-examination, he testified that there was another lady in his life about whom he had been similarly warned.

The Position of the Parties

Defence Position

[76] The defence submits that this is a “he said/she said” situation regarding an event that allegedly occurred in June 2021. The defence submits that the decision in this matter must address the credibility of the witnesses, particularly the assessment of evidence from a child witness.

[77] The defence submits that, when I complete the assessment, I will have to consider the inconsistencies in the evidence of the complainant, O.P., and some information that has been revealed for the first time today, despite the police statement and prior testimony at the preliminary hearing. He points to specific examples, some of which I will summarize below:

a. The timing of events: at the preliminary hearing she stated it was at the beginning of June based on a phone call with her uncle and decided that it happened on a Wednesday; at the trial, she used her boyfriend’s birthday as a landmark and was confident that it happened instead at the end of June on a Friday or Saturday.

b. Offering of a drink by the accused: At the preliminary hearing, she stated that she was offered water, but something conspicuous had been added, so she refused to drink it. She also said that her boyfriend had warned her about that possibility. At the trial, she said she was offered a drink when her boyfriend walked her to the bedroom.

c. How long her boyfriend was gone: At the preliminary hearing, she stated that her boyfriend left her alone in the residence for an hour; at the trial, she said he was gone for about three hours.

d. The event of sexual misconduct: At the preliminary hearing, she said it lasted about 30 minutes, and at the trial, she said about 1.5 hours.

[78] The defence submits that the inconsistencies in O.P.'s evidence should raise concerns about its overall reliability. Counsel refers me to the test in W. (D.) and notes that even if I do not readily accept the accused’s evidence, there are frailties in O.P.’s evidence that should lead me to a finding of not guilty.

[79] Counsel submits that J.L. testified with “almost a naïve honesty”. He acknowledges that J.L.’s comments to the police about O.P. at the time of his arrest would raise an eyebrow, but that J.L. sufficiently explained them in his statement.

[80] Ultimately, O.P.'s recollection of events is countered by J.L.'s recollection of events. Counsel submits that at no point was J.L. shaken on whether he had put his hands on her, removed her clothing, forced intercourse with her, or used a knife and threatened O.P.

[81] Although J.L. acknowledges that O.P. has been at his residence, he resolutely denies that she has ever been in his bedroom or that any sexual misconduct ever occurred. The defence submits that even if I do not accept the accused’s evidence, the complainant’s credibility is insufficient to prove the case beyond a reasonable doubt.

Crown Position

[82] The Crown agrees that this is, essentially, a W. (D.) case.

[83] The Crown submits that, in considering the credibility of evidence, I must assess the factors to the mental development of the witness. He submits that this may have some application to the accused in terms of a possible intellectual disability. He also references the complainant’s age. He submits that O.P. appears to be a mature 15-year-old and notes that there is no firm standard for when a witness’s evidence is to be assessed on an adult standard.

[84] The Crown acknowledges some inconsistencies in the complainant’s evidence but describes them as peripheral, which must be considered in the context of her age at the time. The Crown urges the court to recall that the allegation dates to June 2021; she reported it in September 2022, provided her statement in October 2022, and testified in December 2024. This passage of time, combined with her age at the time of the allegations, may affect her ability to recall specific events and sequences.

[85] Inconsistencies vary in their nature and importance. According to the Crown, I should be most concerned with carelessness with the truth. The Crown submits that the court is not required to address or resolve every inconsistency; however, care must be taken in assessing the evidence considering these inconsistencies.

[86] The Crown submits that no witness is entitled to have their credibility assessed in isolation; it is considered in the context of the rest of the evidence, not in isolation from it. This applies to the accused’s evidence even when considering the W. (D.) analysis.

[87] In considering the accused’s evidence, the presence of a knife collection may be significant. In and of itself, it may not seem like the most significant detail, but when placed in the context of the allegations, it becomes highly relevant.

[88] The evidence presented by the accused and his mother, in the Crown’s estimation, seemed contrived – all of it was geared toward the impossibility of it having happened. While dismissing the accused’s narrative, the Crown does note his utterance to police at the time of his arrest, some 15 months after the alleged assault, that the only person he could think of that would say such a thing would be O.P. J.L.’s evidence was that the police told him the allegation was from June 2021. The Crown poses the question: how would O.P. stick out in his mind if the only thing that happened that June was that she injured her ankle on the corner of Prospect and Poplar? If she never attended his residence, but instead his mother gave her a ride back to her boyfriend’s house?

[89] The Crown notes that O.P. came across as an intelligent young woman. She was forceful in her evidence, especially when the suggestion was made that it did not happen. One of the accepted facts is that she reacted strongly to seeing him. J.L.’s evidence on this point is internally inconsistent – he testified that he did not arrive at the Complex until she was in the ambulance and that he had offered to help her because he was working.

Legal Principles

The Presumption of Innocence and the Burden of Proof

[90] The accused is presumed innocent. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden, and it never shifts. The accused has no obligation to prove his innocence. This is an essential and longstanding principle of our criminal law, constitutionally entrenched in Section 11(d) of the Canadian Charter of Rights and Freedoms: see R. v. Pearson, [1992] 3 S.C.R. 665, at pp. 682–683, 687.

[91] The Crown must prove the elements of the offences charged beyond a reasonable doubt and disprove any available defences beyond a reasonable doubt. There is no burden of proof on the accused to prove anything.

[92] The standard of proof beyond a reasonable doubt is an exacting one. A reasonable doubt has been described as one that is not far-fetched, imaginary, or frivolous. It is based on reason and common sense. It is logically derived from the evidence or the lack thereof. It is more than probable or likely guilt and falls much closer to absolute certainty than it does to a balance of probabilities: see R. v. Lifchus, [1997] 3 S.C.R. 320. However, the Crown is not required to prove anything to absolute certainty as that would be nearly impossible: see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, para. 242.

[93] I may find the accused guilty only if I am certain that he committed the alleged offences. The Crown must prove each element of each offence beyond a reasonable doubt.

[94] For me to find J.L. guilty of sexual assault with a weapon (count 1), the Crown must prove the elements of sexual assault beyond a reasonable doubt. That is, that he touched O.P., and that the touching was for a sexual purpose and the sexual integrity of the victim was violated – and I must find that in committing a sexual assault, he carried, used, or threatened to use a weapon or an imitation of a weapon: section 272(1)(a), Criminal Code.

[95] An object constitutes a “weapon” when it contributes to the harm caused to the victim. The object does not have to be designed or intended to injure to qualify as a weapon. Furthermore, the harm caused or intended is not required to be physical. Psychological harm is included: see R. v. Lamy, 2002 SCC 25, [2002] 1 S.C.R. 860.

[96] For me to find J.L. guilty of sexual interference (count 2), the Crown must prove beyond a reasonable doubt that O.P. was under the age of 16 at the relevant time, that J.L. touched O.P., and that the touching of O.P. by J.L. was for a sexual purpose.

[97] Where an accused is charged with sexual interference of a complainant under the age of fourteen, as he is in this case, s. 150.1 of the Criminal Code vitiates the need for the Crown to prove lack of consent.

150.1(1) Where an accused is charged with an offence under section 151 …or is charged with an offence under section 271…in respect of a complainant under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

[98] For me to find J.L. guilty of uttering threats (count 3), the Crown must prove beyond a reasonable doubt that J.L. knowingly, in any manner, uttered, conveyed, or caused O.P. to receive a threat to cause death or bodily harm.

[99] The actus reus will be established if a reasonable person aware of the circumstances in which the words were uttered would have perceived them to be a threat of death or bodily harm.

[100] The mens rea is established if the accused intended the words uttered or conveyed to intimidate or be taken seriously. It is not necessary to prove that the accused intended to carry out the threats: see R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931.

[101] It bears repeating that, throughout the trial process, J.L. is presumed to be innocent. That presumption remains throughout the case, and the burden of proof never shifts, unless or until the Crown has, on the evidence before the court, proven beyond a reasonable doubt that he is guilty of any or all of the offences charged.

The Application of R. v. W. (D.)

[102] I must consider all of the evidence. How much or how little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify. As the trier, I may decide that the testimony of just one witness is more reliable than other witnesses. In this case, there were only two people alleged to be present during the allegations – the complainant and the accused.

[103] While under no obligation to do so, the accused testified and denied all the allegations in this case. Accordingly, the principles as set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, apply to my analysis.

[104] In these circumstances, in assessing the evidence, I have instructed myself under the direction of the Supreme Court in W.(D,) at pp. 757–758:

…In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole.

… A trial judge might well instruct the jury on the question of credibility along these lines:

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 any 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. [Citations omitted].

[105] While it has been said that these three W. (D.) steps are not a “magic incantation”, following the analytical framework set out in that case ensures that the correct burden and standard of proof are applied: see W. (D.), at p. 533. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, para. 23:

In a case that turns on credibility… the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt.

[106] In R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, paras. 10–12, the Supreme Court qualified the W. (D.) instruction with an additional prong, partly in recognition that a trier of fact “may believe some, none, or all of the testimony of any witness, including that of an accused.” Where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal.

[107] In assessing the evidence, I have reviewed it in the order in which it was presented. In deciding the matter, I will first consider the accused’s evidence. Regardless of the order in which I assess the evidence, it is essential to consider individual witnesses’ versions of events in the context of the overall evidence. “[T]he verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt”: see R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, para. 8.

Credibility and Reliability

[108] The court is required to assess the credibility and reliability of each witness called at trial. To be relied on, a witness’s evidence on an issue must be both credible and reliable. The trier of fact may believe some, none, or all of the testimony of any witness, including the accused. Where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal: see J.H.S., at paras. 11–12.

[109] Reasonable doubt applies to credibility assessments, such that if the Crown's evidence does not rise to the level required for a criminal conviction, even where the accused's evidence is disbelieved, the accused must be acquitted. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt: see R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, para. 62.

[110] In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, paras. 12–15, Watt, J.A. reviewed the applicable principles for assessing the credibility of witnesses' evidence. I excerpt the following for consideration in the circumstances of this case:

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which as honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses.

15 …[P]rior consistent statements of a witness are not admissible for their truth. Mere repetition of a story on a prior occasion does not make the in-court description of events any more credible or reliable. [Citations omitted].

[111] While inconsistencies on minor matters or small points of detail are normal and to be expected, a trial judge must be careful not to improperly discount significant inconsistencies by labelling them as “peripheral” and thus avoiding the duty to address and weigh them: see R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, para. 37; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, para. 17.

[112] The reliability of a witness’s evidence is a separate but related issue in assessing their credibility. As noted by Watt, J.A. in R. v. C. (H.), 2009 ONCA 56, 241 C.C.C. (3d) 45, para. 41, credibility focuses on a witness’s veracity, while reliability concerns the witness’s accuracy. Accuracy involves the ability to observe, recall, and recount events that are in issue. A witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence.

[113] In making these assessments, a court must remember that people react to events differently. Courts must avoid stereotypical thinking about how people should or should not react to traumatic events. Courts must decide sexual assault cases “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: see R. v. Shearing, 2002 SCC 58, 3 S.C.R. 33, para. 121.

Assessing the Evidence of a Child

[114] The notion that children give inherently unreliable evidence has been rejected. The judiciary is not to impose the same exacting standard on the testimony of a young child; however, this does not mean that courts should not exercise care in assessing the credibility of a child’s evidence. A child’s evidence does not have to be corroborated to be accepted: see R. v. B. (G.), [1990] 2 S.C.R. 30 at 54–55; R. v. W. (R.), [1992] 2 S.C.R. 122 at pp. 132–134.

[115] Generally, when an adult testifies about events that occurred when they were a child, their credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially in peripheral matters such as time and location, should be considered in the context of the age of the witness at the time the event occurred: see A.M., at para. 11.

[116] In this case, the complainant was an 11-year-old child at the time of the alleged offences and 15 years old at the time of trial. She is still a child. O.P.’s evidence is to be assessed as that of a child, despite the maturity she displayed during her testimony.

[117] Some considerations that are particularly relevant in assessing O.P.’s evidence include the way children process or recall time and the timing of events. Although children may not be able to provide reliable evidence on questions relating to time (both when something occurred – such as the time of day, date, month, or year – or how long it took), their evidence upon assessment may be found to be credible in terms of what actually occurred. The Manitoba Court of Appeal in R. v. G.D.G., 2013 MBQB 244, 298 Man. R. (2d) 119, upheld the trial judge’s findings, noting at para. 83 that “[t]he trial judge determined that any inconsistences in the child’s evidence were on peripheral matters attributable to the way children perceive concepts, like time and place, differently than adults.”

[118] A child’s sense of time and dates develops as they grow older, and it is common for children to be inconsistent in their statements about when incidents of abuse occurred. When assessing a child’s evidence, the court must carefully determine whether inconsistencies in their testimony are peripheral or core. Where the inconsistency does not relate to an essential element of the offence, it is less troublesome.

Analysis

Facts Not in Dispute

[119] Identity is not an issue in this trial.

[120] That the complainant was 11 at the time of the allegations is not disputed.

[121] The location of the alleged assault is also not in dispute, insofar as the apartment discussed was the accused’s residence in Kirkland Lake at the relevant time.

[122] It is also common ground that the complainant knew the accused as she was, at that time, dating the accused’s younger cousin, and they spent time together.

[123] All parties agree that, at the time of the allegations, the complainant was approximately 5 feet 2 inches tall and weighed about 100 pounds. The accused described himself as 6 feet 6 inches tall and approximately 275 pounds in June 2021.

[124] The complainant’s initial disclosure occurred after an ambulance assisted the complainant at the Joe Mavrinac Community Complex in Kirkland Lake. The parties differ on the reason for the ambulance's attendance, though the only information the accused had was hearsay and was not corroborated. The Agreed Statement of Fact confirms the complainant’s evidence that she had a panic attack after seeing the accused at the Complex. As this was an Agreed Statement of Fact, I must accept it as fact.

[125] The accused's residence was located at the back of a building, accessible by steep stairs. The complainant, the accused, and C.S. all describe the stairs as being steep and, in some way, difficult to navigate.

[126] The accused has two dogs.

[127] The residence was described as long and having several rooms as you proceed into the apartment – the accused’s bedroom was furthest into the residence. There was a door on the right as you entered the accused's bedroom. This was an ensuite, according to the accused and C.S., but was described by the complainant as being a walk-in closet.

Assessment of the Accused’s Evidence

[128] The Crown referenced an intellectual disability of J.L., and defence counsel refers to his mother’s evidence at trial. However, there is no evidence of an intellectual disability that came from J.L. or his mother, C.S.’s, evidence. She referred to a disability but referenced only pain as a lasting impairment. I cannot speculate on whether there are any other impacts on J.L. without credible evidence to support such a claim.

[129] The accused’s evidence amounted to a complete and adamant denial of any assault on O.P., including a denial of any opportunity for such an assault to occur. J.L. testified that O.P. had never been in his bedroom. He further testified that he was never alone in the apartment with O.P. This was corroborated by the evidence of C.S., who essentially stated that during the COVID-19 pandemic, she left the apartment only on very rare occasions, and they did not have guests.

[130] Although J.L.’s evidence is largely internally consistent, there are several external inconsistencies. One of the most striking is his evidence that he did not attend the Complex until after the ambulance arrived. We know this is untrue, as the Agreed Statement of Fact contradicts it.

[131] J.L. further testified that he recalled O.P. injuring her ankle but denied that it occurred on the stairs outside of his residence when the dogs were being let outside. He recounts an event at the corner of Prospect and Poplar Streets where O.P. hurt her ankle in a pothole. He testified that his mother picked them up and drove O.P. to her boyfriend’s residence, which was also her mother’s sister’s residence. He denies O.P. ever attended his residence with such an injury.

[132] Despite this, J.L.’s evidence on the state of the staircase leading to his apartment accords with O.P.’s evidence. He also confirmed that he has dogs but denied that they ever went outside while O.P. was visiting his residence.

[133] Further, J.L. stated that O.P. had never been in his bedroom. This is at odds with O.P.’s ability to describe his room, as well as some of its layout and contents. J.L. states that he did not threaten O.P. with a knife but spoke of his knife collection, which was kept and well cared for in his bedroom.

[134] Despite having the benefit of hearing his mother’s evidence, J.L. testified that O.P. had been to their apartment. This inconsistency is double-edged. If C.S.’s evidence is reliable and credible, then I would have some doubt as to whether O.P. was at the apartment, and at the same time, I would have to reject J.L.’s evidence that she had been there, but nothing happened, and that his mom was home. If I reject C.S.’s evidence as not reliable and/or credible, I must still consider whether I accept J.L.’s evidence that O.P. attended the residence but did not enter his bedroom and was not assaulted.

[135] J.L. testified about the utterance he made while he was being arrested. He testified that he recalled a warning about O.P. making up allegations of this nature. His evidence is that this is the reason that, when faced with being arrested on charges of sexual assault from June 2021, the only person he felt that it could have been was O.P.

[136] J.L. testified that L.C. had warned him that O.P. might try to make false allegations because she had done so to other people. When asked in chief why he would have volunteered information that it must have been O.P., J.L. testified that the only time she thought he was nice was when he was buying snacks or drinks. When he was asked again, he testified that L.C. had warned him that she might do that.

Assessment of C.S.’s Evidence

[137] His mother’s evidence corroborated J.L.’s evidence to a degree.

[138] C.S. was not a witness to any visit made by O.P. to the apartment. Her evidence may only have value insofar as it supports J.L.’s evidence. C.S. testified to receiving a call from J.L. when she injured her ankle at the corner of Prospect and Poplar Streets, and she drove her to her then-boyfriend’s house – this happens to be her sister’s house.

[139] I find that her evidence was tailored to support J.L.’s narrative. Her evidence was mainly comprised of generalities, such as her claim that she was always home and her denial that she might leave the apartment or have guests due to COVID-19. For example, when she was asked whether it was possible that she had gone away, visited family, or had an appointment, her answer was flat: “Not in June.”

[140] Even J.L.’s evidence contradicts C.S.’s testimony, as he acknowledged that O.P. had been in the apartment with his cousin.

[141] According to C.S.’s evidence, she was not present in the residence at any time when O.P. was present. She denies that O.P. has ever been to her residence.

Assessment of the Complainant’s Evidence

[142] The complainant testified about an alleged sexual assault that took place in June 2021 when she was 11 years old. She testified that J.L. was her then-boyfriend’s older cousin. She testified that she had been to his residence. She recalled injuring her ankle on the steep steps leading to his apartment as his dogs were let outside. She testified that she was taken into the residence, offered ice and ultimately, her boyfriend helped her to J.L.’s bedroom where she was to rest until he could return with his brother to help get her back to his house.

[143] O.P. testified that, during the time her boyfriend had been away from the residence, J.L. entered the room, sexually assaulted her, threatened her with a knife (not a sharp knife), and left the room. She recalled cleaning herself up in the bathroom. She recalled then going with her boyfriend and feeling upset.

[144] She did not disclose these allegations until some time later when she had a panic attack at the Complex upon seeing J.L. She later made a statement to the police. She has also testified at a preliminary inquiry and again at this trial.

[145] Admittedly, there are several inconsistencies in O.P.’s evidence. These inconsistencies relate to the following areas of her evidence:

a. The date of the allegations – was it earlier in June as she stated in her evidence at the prelim connected to a phone call she made to her uncle, which she did not recall saying when cross-examined at the trial; or was it after her boyfriend’s birthday, in the second half of June as she stated at trial? At trial, she recalled that they had received their birthday gifts before the allegations.

b. How did she get to J.L.’s bedroom? At trial, she described her boyfriend carrying her to J.L.’s bedroom to rest her ankle. She recalled this happening before he left to get his brother to help. She was challenged on whether he had walked her to J.L.’s room as she had not mentioned it at the preliminary hearing. She was adamant that L.C. had taken her to J.L.’s bedroom before departing.

c. How long was L.C. gone, leaving her alone in the apartment with J.L.? She was inconsistent in her answer regarding how long L.C. was gone between the preliminary hearing and trial. She was inconsistent on how long the assault lasted. In her statement, she estimated 2.5 to 3 hours; at the prelim, she said about an hour and a half; and at trial, she recalled 2.5 to 3 hours.

[146] These inconsistencies are not core issues.

[147] O.P.’s evidence was consistent with what happened to her. She was consistent on the overall nature of the time at the residence – that she injured herself, she was seated in the kitchen for some time, J.L. offered her a drink, she was taken to his room to rest/elevate her ankle, that he entered his bedroom and inserted his penis into her vagina without her consent in June 2021 when she was 11 years old. He was significantly older and bigger than she was.

[148] Some of her memories appear to be physical memories – where her evidence may have been inconsistent on which day in June or how long the assault lasted, O.P. was clear that she was assaulted. She was adamant in cross-examination that she was sexually assaulted, stating firmly: “I know what happened to my body.” She demonstrated an ability to recall and recount the assault.

[149] O.P. explained some of the inconsistencies in her wording by noting that she has severe anxiety. She explained that she was trying to recall what happened four years prior, trying to “walk myself through a traumatic event that I have been trying to block out for four years.” She also explained that she felt overwhelmed at the trial, with questions coming at her quickly.

[150] She acknowledged that she had twisted her ankle several times but did not recall doing so at the corner of Prospect and Poplar Streets, nor did she remember having C.S. drive her to L.C.’s residence. She testified clearly about the incident at J.L.’s residence on the stairs and the aftermath of sitting in the kitchen, ultimately resting in J.L.’s bedroom, which gave rise to the matter before the court.

Applying W. (D.)

[151] Despite being internally consistent in his denial, J.L.’s evidence is fraught with external inconsistencies, some of which have been reviewed above. I reject his evidence.

[152] As a result, I must continue to the next step in the W. (D.) analysis.

[153] Furthermore, based on the evidence presented by the accused that I accept, I am not left with a reasonable doubt.

[154] This finding necessitates that I consider, based on the evidence I do accept, whether I am convinced of the accused’s guilt beyond a reasonable doubt.

[155] I do not find the evidence of C.S. to be credible or reliable. It appears to have been crafted in a way that supports J.L.’s narrative – to such a degree that, in some ways, it is unintentionally inconsistent with his evidence. For example, C.S. testified that O.P. had never been to the residence, and, since she rarely left, there would have been no opportunity for this to occur. J.L. testified that O.P. had attended the residence, but he had not been alone with her in the residence, noting that his mother was home.

[156] The Agreed Statement of Fact also undercuts J.L.’s evidence of the incident at the Complex.

[157] While O.P.’s evidence presented some internal inconsistencies, these inconsistencies were not related to core issues and are consistent with the court's findings that children do not recall time and dates in the same manner as adults. I find that O.P. was making an honest effort to remember when in June 2021 this occurred – landmarking it around either a phone call from her uncle or, perhaps more reliably, around the date of her then-boyfriend’s birthday. Similarly, she was asked to recall how long L.C. had been gone from the apartment. I accept that she was attempting to remember how long it was but, being 11 years old at the time, and seeing as four years having elapsed, she is not a reliable estimator of time. Whether J.L. had 90 minutes or 2.5 hours to assault her is not a core issue.

[158] I accept O.P.’s evidence and find that her evidence establishes beyond a reasonable doubt that J.L. sexually assaulted her and, in doing so, committed the offence of sexual interference, given her age at the time.

[159] I accept O.P.’s evidence that J.L. used a knife of some kind to threaten her into silence. However, this did not occur during the assault, and I find that he is not guilty of the charge as laid, but guilty of the offence of simple assault as it related to the use of the knife.

Conclusion

Count 1: Sexual Assault with a Weapon

[160] The central question for the court on count 1 was whether the use of the knife to threaten O.P. not to tell anyone about what had happened was sufficient for a finding that it was a continuous and part of the same act as the sexual assault. With further evidence, this may have been the case.

[161] On the evidence before the court, I find that the charge of sexual assault with a weapon was not made out beyond a reasonable doubt. However, I find the accused guilty of the lesser included offence of assault with a weapon.

Count 2: Sexual Interference

[162] I find the accused guilty of the charge of sexual interference.

[163] The age of the complainant is not in dispute – that element of the offence is therefore proven beyond a reasonable doubt.

[164] I reject the accused's evidence and accept the complainant's evidence. I find that the accused did commit a sexual assault on the complainant in June 2021 by touching her leg and forcing sexual intercourse on her.

Count 3: Utter Threat to Cause Death

[165] I find the accused guilty of the charge of utter threat to cause death.

[166] I accept the complainant's evidence and reject the accused's evidence on this point.

Justice Robin A. Bellows
Released: April 22, 2025