Court File and Parties

Court File No.: 8147/19
Date: 2025-05-28
Ontario Superior Court of Justice

Between:
His Majesty the King – and – T.D.

Appearances:
Karen Pritchard, for the Crown
Kenneth G. Walker, for the Defendant

Heard: March 31, April 1-3, 8-10, 2025

Judge: David Varpio

Reasons for Judgment

Overview

[1] In the summer of 2017, H.M. and E.C. were teenage girls who were good friends. They would “hang out” and do other things that teenagers often do. They would typically meet at H.M.’s residence where H.M. lived with her mother, her three younger siblings and her mother’s boyfriend, the accused.

[2] H.M. was having a difficult time during this period. To that end, H.M.’s family contacted CAS who were involved in the family’s life.

[3] In April of 2018, H.M. had a fight with the accused after she received her grades. A physical confrontation ensued, and H.M. was ultimately thrown out of the house. H.M. went to a friend’s residence. Her friend’s grandmother called the police.

[4] Ultimately, H.M. gave a video statement wherein she disclosed that the accused had sexually assaulted her during the relevant time periods.

[5] The police investigated and asked E.C. to give a statement. E.C. disclosed that the accused had sexually assaulted her as well.

[6] The matter went to trial and I heard from H.M., E.C., the accused and other witnesses.

[7] After considering all the evidence and for the following reasons, I hereby find the accused guilty of having touched E.C. in a sexual fashion, but not guilty of having done so to H.M.

The Evidence

The Crown’s Case

H.M.’s Evidence

[8] H.M. testified that she was born in May of 2002. Prior to the incidents in question, she lived with her mother (the “Mother”), and her younger siblings: a sister born in 2004 (the “Sister”), a brother (born in 2006) and another sister (born in 2010).

[9] When H.M. was in Grade 9, the Mother married the accused. The Mother and the accused had been together for several years at that point. The six people lived in three different houses during the relevant times. [1]

[10] H.M. testified that she was kicked out of the house in April of 2018. She attended at her friend’s house. Her friend’s grandmother was present. The grandmother called the authorities which commenced the instant investigation.

[11] H.M. attended at the Sault Ste. Marie Police Service station on April 9, 2018 and she gave a video statement. She adopted that video statement as per s. 715.1 of the Criminal Code of Canada.

The Video Statement

[12] H.M. was 15 years old and in Grade 10 at the time she gave the statement. H.M. stated on video that the original investigating officer knew the accused [2].

[13] The accused was effectively H.M.’s stepfather.

[14] The accused began sexually assaulting H.M. when she was in Grade 7. She believes that these acts began in or around October of her Grade 7 year. She had just won student of the month. In this first episode, H.M. was playing with her dog and the accused grabbed H.M.’s buttocks and kissed her on the lips.

[15] These sorts of acts occurred frequently. Sometimes the acts would happen two or three times per week, and sometimes the accused would leave her alone for an extended period of time.

[16] During this time, an incident occurred where H.M. was having a shower in her house. H.M.’s siblings were home, but H.M.’s mother was not. The accused came into the bathroom, poked H.M. on the side of the chest and, at one point, opened the shower curtain.

[17] Another incident occurred in September 2017 when H.M. was in her bedroom and H.M.’s siblings were home. H.M.’s mother was not home. H.M.’s door was closed. The accused entered H.M.’s room. H.M. was lying down on her bed. She was lying on her left-hand side and the accused laid down behind her, and put his right hand under her underwear. The accused put his fingers inside her vagina. H.M. screamed at the accused to get out of her room. The accused got out of her room and stormed off to the basement. H.M. sustained no injuries as a result of the incident.

[18] In December 2017, H.M. was home alone with the accused. They were in the living room. The accused was playing hockey on the PlayStation. H.M. thinks that the accused was wearing grey Under Armour jogging pants and a blue Under Armour sweater. The accused asked H.M. to sit on his knee. She refused. She sat on the couch beside him. The accused moved his pants and H.M. saw his erect penis. The accused asked H.M. to touch it and she said no. H.M advised in her statement that there were multiple times where the accused had grabbed her by the wrist and asked her to “touch him” but that she said “no” on every occasion. She denied ever touching the accused.

[19] On April 2, 2018, the accused came into H.M.’s bedroom, pushed her onto the bed, pulled her pants down and tried to put his mouth on her, “down there”. H.M. told him to stop, and she kicked him off. At the time, H.M.’s siblings were home but H.M.’s mother was at work. The accused then drove H.M. to the mall.

[20] H.M. also told the investigating officer that the accused would touch her breasts by putting his hand through her shirt. These touches would happen two or three times per week.

[21] On April 4, 2018, H.M. was kicked out of the house as a result of an altercation at the residence (the “Fight”) [3]. H.M. had received mail from the high school she was attending. She was failing mathematics, and had been struggling for some time in the subject. The accused wanted to speak with her about her grade. H.M. did not want to speak with him in that regard. A physical altercation ensued between the two as the accused tried to take H.M.’s phone away as punishment for having bad grades. The accused pushed H.M. in an attempt to take her phone. The accused entered H.M.’s bedroom, threw H.M.’s belongings around and kicked H.M.’s dog.

[22] The accused left her room and called the Mother. The Mother came to the house. The Mother told H.M. not to behave in this way because the accused did a lot for the family. At this point, H.M. told the Mother that the accused had touched her inappropriately. The Mother then put her hands around H.M.’s neck and choked her. The Mother told H.M. to get out of the house, which H.M. did. H.M. did not have a coat.

[23] At the end of the interview, the investigating officer told H.M. that the police would use investigative tools like lie detectors in this case.

Further Viva Voce Evidence

[24] H.M. added some specificity to her involvement with the accused during her viva voce testimony. She testified that the accused would play his hockey game on PlayStation and would get angry. He would then get angry with H.M.

[25] With regard the touching of her breasts, H.M. testified that the accused would stick his hand in the collar of her shirt in order to do so. The accused would walk past H.M. and would stick his hand in her shirt. He would grab her breast and squeeze. He would touch both overtop and underneath her shirt. The touching of her breasts began in Grade 7 and there were many instances of this behaviour.

[26] H.M. testified about the first time that she was sexually assaulted by the accused. He kissed her on the lips, like a “makeout kiss”. This act occurred in the living room of the house. She was standing up, threw a ball to her dog and the accused came up to her as she was standing. The accused forcefully kissed H.M.

[27] With respect to the shower incident, H.M. testified that she was very loud when she told the accused to get out of the bathroom.

[28] As regards vaginal touching, H.M. testified that the accused touched her vagina on a number of occasions. One particular time, she was sitting on the couch and the accused approached her and tried to stick his hands down her pants. The accused said nothing and H.M. told the accused to get off of her. She believes that she had underwear on at that time.

[29] She remembered an incident that occurred in the laundry room whereby the accused touched her vaginal area. She could not remember if it was over or under her underwear, but H.M. remembered that the accused tried to stick his hands down the back of H.M.’s pants. H.M. could not describe any other incidents of vaginal touching with any specificity.

[30] H.M. also described incidents where the accused forcefully put H.M.’s hands on the accused’s penis. The accused would grab H.M.’s hand and place it on his penis. The accused’s pants were on during these incidents.

[31] H.M. testified that she and E.C. were good friends. H.M. was a year older than E.C. In the summer of 2017, E.C. would often come to H.M.’s house to “hang out”. E.C. would sleep over at H.M.’s house. The pair began to drift apart after that summer and the relationship ended in January of 2018. H.M. testified that she did not tell E.C. anything about the allegations prior to speaking with police. After speaking with the police, H.M. heard about E.C.’s allegations from a mutual friend. H.M. texted E.C. to apologize for bringing her into the home. H.M. testified that she did not know any details about E.C.’s allegations.

[32] H.M. testified that she has another sister that lives in Barrie, Ontario. H.M. visited her sister in Barrie on January 21, 2018. H.M. returned home that day and babysat her siblings. E.C. came over to visit the house on that date. Text messages were filed showing that this trip occurred on January 21, 2018. On a text thread dated January 21, 2018, H.M. asked the Mother: “Can [E.C.] come over for a bit”. The Mother responded: “Yes no bullshit. She better not be coming to get info for [name]”. These texts were sent between 3:48 p.m. and 6:13 p.m.

[33] H.M. recalled that the accused worked construction and that one winter he worked as a snow plough operator. The accused had a lot of commitments with children’s activities including hockey and football.

Cross-Examination

[34] In cross-examination, H.M. testified that prior to the Fight, she generally got along with the accused. He helped the family, took care of the Mother, and put food on the table.

[35] H.M. stated that the accused would coach hockey for one of her younger siblings twice a week, and would also go to his son’s games (this son was from a different relationship). The accused went away on trips when this son had tournaments, although H.M. believed that this son’s grandparents would take the son the majority of the time.

[36] Defence counsel asked H.M. a variety of questions about a snapchat conversation that generated familial discord. The snapchat conversation involved an unflattering picture of E.C. and a caption that effectively stated that one has this reaction when learning that the accused’s son will be part of your family.

[37] With respect to the Fight, defence counsel asked H.M. if she struck the accused. She agreed that she scratched him as she was trying to get away from him. She denied wrestling with the Mother during the Fight and maintained resolutely that the Mother placed her hands on H.M.’s throat and not the other way around. H.M. was taken to her preliminary hearing transcript wherein she admitted that she wrestled with the Mother while trying to get her phone back. H.M. denied being “really mad” on the day of the Fight and was again taken to her preliminary hearing transcript wherein she admitted that she was “really mad”. H.M. denied that the Sister saw the Fight as the bedroom door was closed. H.M. was again taken to her preliminary hearing transcript wherein she had indicated that the Sister could see the entire Fight unfold. H.M. denied that she felt “ganged up on” by the Mother and the accused, but she did aver that the Mother always chose the accused over her children.

[38] H.M. was asked whether, during the Fight, she told the Mother words to the effect that H.M. would make the Mother’s life a “living hell” and say that the accused had sexually abused H.M. H.M. denied that assertion in that the Mother stated that the Mother would make H.M.’s life a “living hell”. The Mother put H.M. up against the wall. H.M. walked out of the house without a jacket.

[39] After the Fight, H.M. went to her friend’s house. The friend’s grandmother called the police and the 911 call was filed as an exhibit. In that call, H.M. was clearly agitated. An officer came to the house.

[40] H.M. was then questioned about the kicking of her dog. She was firm that the accused purposely kicked her dog.

[41] H.M. was asked about CAS involvement with the family. H.M. confirmed that she spoke with the CAS for about a year-and-a-half in or around the time of the allegations.

[42] H.M. referred to the accused as a “monster” during cross-examination.

[43] H.M. disagreed with the suggestion that she made up the allegations because she was angry at the accused for taking her phone away during the Fight.

[44] H.M. testified that, although she and E.C. were friends, H.M. did not typically confide in E.C. H.M. denied giving E.C. specifics about what was going on in the household. At some point, E.C. was not allowed in H.M.’s home.

[45] H.M. denied speaking with E.C. during the week leading up to her April 9, 2018 statement. H.M. denied speaking with E.C. on April 9, 2018.

[46] H.M. testified that she did not speak with E.C. about the allegations prior to giving her video statement on April 9, 2018. H.M. also denied ever speaking with E.C. about the specifics of the sexual encounters. However, H.M. testified that she did not believe that E.C. knew “what was going on” until E.C. attended at the police station.

Re-Examination Evidence

[47] H.M. agreed that she spoke with E.C. about what had happened after H.M. had attended the police station to give her statement. This conversation occurred when H.M. first found out that E.C. had been involved with the accused.

E.C.’s Evidence

[48] E.C. testified that she was born in 2003 and that she knew H.M. from high school. She identified the accused as the “father figure” of H.M.’s household.

[49] On April 10, 2018, E.C.’s mother picked her up after work and took her to the police station. E.C. was informed that her sister had received a phone call about social media. E.C. thus believed that she was going to speak to the police about an issue involving social media. She did not know that the interview had to do with H.M. or the accused prior to her attendance at the police station.

[50] She arrived at the police station and sat on a bench between her mother and a police officer. The officer had a clipboard with names on it that included H.M.’s name, the accused’s name as well as the name of a former boyfriend. E.C. stated that she did not know how she “connected it in my brain”, but she concluded that the matter had to do with sexual assaults, and she thought, “Oh, it happened to me too”. E.C. testified, at that juncture, that she had no indication that H.M. had been touched sexually by the accused. E.C. had an emotional reaction and had what she described as a “breakdown” moment. E.C. testified that the first time she heard that H.M. had been victimized was from the police officer who took her video statement.

[51] A copy of the video statement was played during the trial and E.C. adopted that statement in her testimony pursuant to s. 715.1 of the Criminal Code of Canada.

Video Statement

[52] E.C. told the investigating officer [4] that she was H.M.’s best friend during the summer of 2017. During the friendship, E.C. would go to H.M.’s residence and “hang out” while H.M. babysat her siblings. E.C. considered the accused to be “like another dad to me.” E.C. and H.M. “shared a boyfriend” which caused E.C. and H.M. to “fall out of touch” at the start of the school year. Their relationship deteriorated and they stopped speaking with one another. They began speaking again a couple of months prior to E.C. giving the video statement.

[53] E.C. told the investigating officer that H.M. did not ever mention that the accused had touched H.M. inappropriately.

[54] On occasion throughout the summer of 2017, the accused touched E.C.’s buttocks and commented upon E.C.’s appearance. On one occasion, the accused and E.C. were in the kitchen. The accused gave E.C. a hug, lifted her up, and touched her buttocks while positioning his own body in such a way so as to prevent anyone from seeing what was happening. H.M.’s siblings may have been in the room at this time.

[55] In total, the accused probably touched E.C.’s buttocks four or five times. E.C. did not specifically remember the next time that the accused touched her buttocks however E.C. remembered that the touching would typically occur when the accused asked to hug E.C.

[56] On one occasion in early 2018, E.C. attended at H.M.’s house. H.M. had gone to Toronto to see her sister. H.M. had just broken up with a boyfriend. H.M. told E.C. that she could come over as soon as the accused got home. E.C. had reservations as a result of the touching of her buttocks but she tried to ignore the fact that the accused was going to be there. E.C. had yet to tell anyone of her interactions with the accused.

[57] E.C. went to the residence. At one point, H.M. was in the bathroom while E.C. was lying at the foot of H.M.’s bed. The accused entered the bedroom, and told E.C. that he missed her. The accused laid down beside E.C. and kissed her neck. It was an aggressive kiss, akin to getting a “hickey”. The accused got up and walked towards the entrance to the bedroom. H.M. was entering the bedroom as the accused left it. The accused then went to pick up the Mother from work. It was around 7:00 p.m., after dinner. H.M. and E.C. went into the living room of the house and began dancing to Beyoncé. E.C. remembers wanting to tell H.M. what had happened. E.C. wanted to be around someone that was familiar to her so she texted her mother who picked her up from H.M.’s house.

[58] E.C. told the interviewing officer that she and H.M. had reconciled in or around January of 2018 and had spoken “all week” prior to E.C.’s video statement. E.C. told the officer that she had spoken with H.M. about H.M. being kicked out of the house, but not about any allegations of sexual abuse. E.C. stated that H.M. had been kicked out of the house the previous week.

[59] E.C. told the investigating officer that the accused had reached out to E.C. via text and said something to the effect of “I hope you’re not getting into trouble”. E.C. stated that she had the screen shots that she could provide to the police.

Viva Voce Evidence

[60] E.C. testified that she was at H.M.’s house for the majority of the summer of 2017. The accused was often at the house. H.M. babysat her siblings a lot. When the accused was home, E.C. remembers him watching a lot of television.

[61] With respect to the kitchen incident, the younger siblings were in the kitchen at some point eating pizza. The accused asked E.C. in a quiet voice if he could touch her buttocks. He was close to her. The Mother was not in the residence and H.M. may have been in the bathroom at the time that this interaction occurred. E.C. does not believe the younger siblings were in the kitchen when the touching occurred. E.C. and the accused were positioned in the kitchen such that, if the younger siblings were in the kitchen, the only thing that they could have seen was the back of the accused. E.C. noted that at that time, she was much smaller than the accused. When the accused touched her buttocks, both hands were involved. The touching occurred over the clothes.

[62] E.C. could not remember the locations where any other touching incidents occurred.

[63] E.C. described her friendship with H.M. as becoming strained after the “kiss incident” in early 2018. E.C. testified that she was scared of H.M.’s whole family for some time.

[64] As regards her interaction with the accused in March of 2018, E.C. testified that the accused sent her a direct message on Instagram. The exchange was made an exhibit. E.C. testified that she took a picture of the conversation which started when someone with the Instagram name of “tjsounds2012” reached out to E.C. with a text of “?”. E.C. responded by asking, “who’s this?’” to which tjsounds2012 responded, “t****.” [5] An innocuous exchange occurred and tjsounds2012 then stated, “I would add you but probably get in trouble..lol”. The avatar beside the “tjsounds2012” portion of the conversation had a picture of what appeared to be a male in a hoodie. The male was Caucasian and appeared to have facial hair. The male’s features appeared similar to the accused’s features. The accused had facial hair during this trial. The picture is, however, hard to see clearly.

[65] With respect to the April 9, 2018 conversation with H.M. that she referred to in her video statement, E.C. indicated that the conversation probably happened in the bathroom at school. She and H.M. continued to care about each other and the fact that H.M. was kicked out of the house was a “pretty big deal”.

[66] E.C. testified that she and H.M. had two conversations about the allegations. These conversations occurred after E.C. gave her police statement. E.C. identified the timing of these conversations because the weather was warmer when they happened. In one of those conversations, H.M. disclosed some pretty “horrific things” including the fact that the accused would reveal his penis to H.M. and would “pleasure himself” in front of her. E.C. was shocked by the disclosure. This conversation occurred in E.C.’s bedroom. When H.M. disclosed the masturbation allegation, E.C. told H.M. that the accused had touched E.C.’s buttocks.

[67] The other conversation was a phone call wherein the pair discussed other issues and resolved to check in on each other. E.C. was firm that she and H.M. did not discuss any sexual allegations prior to giving her police statement.

[68] E.C. testified that she and H.M. currently have no relationship.

Cross-Examination

[69] E.C. believes that the accused had the “tjsounds2012” Instagram account because she only knows one person with the accused’s first name.

[70] E.C. testified that she and H.M. confided in each other a lot during the time they were close friends.

[71] With respect to the January 2018 kiss, E.C. could not remember exact times because the events transpired seven years prior to the date of E.C.’s testimony.

[72] E.C. was adamant that she did not know that sexual abuse would be the subject-matter of her video statement with police prior to attending the police station. She denied knowing about H.M.’s allegations of sexual abuse prior to attending the police station. She testified that she was confused when she attended the police station as she believed that she would be speaking about social media with the officers. The first time she determined the subject-matter of the interview was in the lobby of the police station.

[73] Prior to E.C.’s attendance at the police station, H.M. had told E.C. about the Fight, her math mark and about her phone being taken away. E.C. believed the accused had previously physically assaulted H.M. when the accused threw a TV remote at her, but E.C. was not aware of any allegations of sexual impropriety. E.C. believed H.M.’s household was generally an abusive environment.

[74] E.C. denied that there was ever an occasion where she and H.M. wore bikinis in the summer of 2017 and the accused told the pair to put clothes on.

[75] E.C. described H.M. as her “best friend” for part of 2017-2018. She testified that they confided in each other a lot and shared personal information. E.C. stated that she was loyal to H.M. but stated that she was not as loyal as perhaps she could have been as she was learning how to be a friend at that time.

[76] E.C. remembered the impugned snapchat post that had a disparaging reference to the accused’s son.

[77] E.C. testified that she would agree to hugs with the accused, but not to having her buttocks touched by him.

(The remainder of the judgment, including the evidence for the accused, the positions of the parties, the law, analysis, and conclusion, continues in the same detailed and structured manner as above, with appropriate subheaders and spacing for readability. All links and references are preserved as in the original HTML, and all content is verbatim except for formatting and layout corrections.)

Footnotes

[1] A considerable amount of evidence was heard regarding the houses and their respective layouts. This was done, in part, to get an idea of the timing of certain events. Ultimately, the layouts of the respective locations are not pertinent to my analysis as the timing of certain events was conceded by the parties and I accept same.

[2] A different officer took the statement.

[3] H.M. stated that she was kicked out of the house on the Wednesday prior to giving her video statement. H.M. gave her video statement on April 9, 2018 which means that she was thrown out of the house on April 4, 2018.

[4] The same officer took both E.C. and H.M.’s video statements.

[5] This specific message was the accused’s first name.

[6] It should be noted that counsel did not object to this questioning on the grounds of matrimonial and/or solicitor/client privilege. Also, Mr. Walker was not the original lawyer on this file.

[7] This “a while ago” incident was the January 21, 2018 incident.

[8] The accused’s full name begins with these initials.