Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding under subsection 486.4(1)(a) of the Criminal Code, RSC 1985, c C-46, directing that the identity of the victim or witnesses and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. Any breach of this Order may result in criminal charges.

Reasons for Decision

Roger J.

Background Facts

[1] The accused is charged with one count of sexual assault and one count of invitation to sexual touching. The allegations involve a young complainant and events allegedly occurring in 2019.

[2] The complainant was 8 or 9 years old when the events allegedly occurred. She attended a private daycare. She alleges that the husband of her daycare provider sexually assaulted her in 2019.

[3] Identity is admitted, as is the fact that the complainant attended a daycare run by the accused’s wife, at the accused’s residence, from 2011 until prior to school at the end of summer 2019.

[4] The complainant alleges four separate incidents involving the accused. All alleged incidents were brief and occurred in the accused’s family room.

[5] The first alleged incident involves the accused touching her vagina. The complainant testified that the accused offered to provide her a shoulder massage. He sat her on his lap on the family room couch, massaged her shoulders, kept moving his hands lower and lower until he put his hand in her pants and touched her vagina, on her skin. She does not remember him penetrating her vagina with his fingers. She said that her sister and cousins were in the basement and said that the accused’s wife was cooking in the kitchen when this happened. She is positive about where other people were for this incident but is not certain where others were for the other incidents, although she said she always remembered that the other children were in the basement, she is not certain for the other events. She is also not certain if both her cousins or just one of her cousins attended the daycare at that time.

[6] The other incident, either the second or the third alleged incident as the complainant is not certain of their sequence, involves the accused putting his penis in her hand. The complainant testified that the accused sat her on his lap while watching television in the family room, put something in her hand and said, “feel it, feel it”. She never saw his penis but said it felt like nothing she had touched before. After, she saw him zipping up his pants, but never saw him unzipping his pants. She is not certain, but believes his pants button remained buttoned up. She is certain that it was his penis. She said that she knew that he wanted her to feel his penis when he said, “feel it, feel it”. She agreed, during her cross-examination, that she does not remember how this could have happened if she stayed on his lap. She suggested that he could have “slouched” her over, but she does not remember this happening. She also remembers that he adjusted himself after this incident, putting his hand in his pants to do so, which is also why she is certain that it was his penis.

[7] The next incident, again either the second or the third alleged incident as the complainant is not certain of their sequence, involves the accused putting his penis in her pants. The complainant testified that the accused sat her on his lap on the family room couch and, while seated behind her, slid his penis in her pants. She did not see his penis. She described feeling his penis in her underwear, on her skin, moving around, near her vagina. Her pants and panties were not removed or pulled down. Both his hands were in her pants. One was in her pants and the other was guiding his penis.

[8] The last and fourth alleged incident involves the accused kissing the complainant using his tongue. The complainant testified that on her last day at the daycare, while saying goodbye in the family room, the accused gave her a hug and kissed her using his tongue. She said that he stood her on the family room couch and asked her to use her tongue. She testified that after kissing her using his tongue, he said that it would be their little secret.

[9] The complainant corrected her police video statement and testified that she always remembered what had happened, but only started to understand how wrong it was about one year before she disclosed it to her therapist on July 4 or 5, 2022. She said that once she understood, she pushed it back, and it took her about one year before she decided to talk about it to her therapist. She said she understood from information she saw online, on social media, and from certain words that she researched such as, “sexual assault”. She explained that she wanted to know what it meant, and that eventually she understood that what the accused had done to her was touch her “unconsensually”. She said that she always understood that what had happened was not normal, although she thought that it was “not a big deal”, and later she gained “more understanding of it” from what she saw online. She said at trial that she kept a journal, and made some entries about this, but no longer has or could not find the journal.

[10] The accused testified and denied all the complainant’s allegations. He is 71 and lives with his wife. They have three grown children and five grandchildren. His wife operated a daycare at their home from 2008 until these allegations were disclosed in 2022. The accused worked as a teacher and resigned after these allegations came out. They also owned a motel in Cornwall, and he occasionally spent time there overseeing operations.

[11] Living in their home in 2019 were the accused, his wife, their 25-year-old working son, and for most of the period prior to September 2019, their married daughter, and her newborn baby girl. The accused explained that their daughter lived in his home for support from the accused’s wife with the baby and to help his wife with her daycare after her knee replacement surgery in June 2019. As well, a tenant lived in their basement starting December 2018.

[12] The accused agreed that he was frequently home while the daycare children were there and said that he occasionally helped his wife, as she directed, with her daycare. He testified that the children were not allowed to go to the basement in 2019 because it was occupied by a tenant, nor previously, when it was also at times rented to a tenant but agreed that the children could play in the basement when there were no tenants. He admitted to occasionally giving treats to the children, including to the complainant, but said that he did so at snack times if a child asked and if his wife agreed. He admitted that children, including the complainant, occasionally sat on his lap to watch television and that he might have rubbed the child’s back but said that others were present when that happened. He remembered five children attending the daycare and in his recollection his wife kept the children together. He admitted that it was possible but did not remember an instance of being alone with the complainant or with one of the other children.

[13] The accused’s wife and adult daughter also testified. They confirmed that a tenant occupied the basement in 2019 which, they said, was off limits to the daycare children while occupied by a tenant.

[14] The accused’s wife testified that five children attended the daycare until July 2018. Thereafter, four children attended. Most of the children, including the complainant, started attending her daycare at the age of 1. In 2019, the children in attendance at her daycare were the complainant, who was then approximately 8, her sister, who was about 6, and two boys, one who was about 8 and the other who was about 9.

[15] Both the accused’s wife and adult daughter also testified that the daycare children were, as much as possible, kept together as a group. All three testified that the daycare was organized with a routine of activities.

[16] The accused’s wife and adult daughter said that the daycare children did activities either in the family room, kitchen, dining area, or outside. The area of the accused’s home accessed by the children in 2019 was an open concept area, with no wall separating the kitchen from the dining area and family room area. When the basement was not tenant-occupied, the children played there as a group.

[17] Both the accused’s wife and adult daughter agreed that the accused interacted with the children but testified that he was rarely alone with a child as the children were mostly together as a group. The accused’s wife explained that the children were kept together as this allowed her to supervise the children. The accused’s adult daughter said, about this, that “this is how kids are, the train effect”. Both the accused’s wife and adult daughter testified that the accused’s adult daughter lived at the accused’s home for most of the time in 2019 before August 23, 2019, the complainant’s last day at the daycare. The accused’s wife and adult daughter testified that the daughter helped her mother with her daycare while nursing and looking after her newborn baby. Both testified that they never observed the accused inappropriately touching the complainant.

Issues

[18] The ultimate issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged.

General Principles

[19] Accused persons are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown.

[20] Proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.

[21] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out. A finding of not guilty is required where the evidence only manages to prove that an offence probably or likely occurred.

[22] The assessment of the credibility and reliability of the witnesses’ evidence is important. Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony.

[23] A judge can believe or disbelieve a witness, but still be left with a reasonable doubt considering all the evidence. When considering the testimony of a witness, a judge can accept all, some, or none of a witness’s testimony. If the evidence does not convince the judge beyond a reasonable doubt that the accused committed the offence, the accused must be acquitted.

[24] A judge must be sensitive that “children may experience the world differently from adults, [and] it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133. A common-sense approach should be adopted when dealing with the testimony of children as “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”: W. (R.), at p. 133.

[25] The credibility and reliability of every witness must be carefully assessed. In assessing the evidence of a child, it is important for the judge to consider the witness’s mental stage and intellectual level, comprehension, and ability to articulate his or her recollection, while at the same time maintaining the same standard of proof.

[26] The Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758 provides the following instructions with respect to the analysis of reasonable doubt when an accused testifies:

a) In the context of all the evidence, consider whether you believe the accused. If you do, you must acquit.

b) If you disbelieve the accused, consider whether his evidence, in the context of all the evidence, nonetheless leaves you with a reasonable doubt about the guilt of the accused. If it does, you must acquit.

c) Even if you disbelieve the evidence of the accused, and even if you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. If the accused’s evidence does not leave you with a reasonable doubt, you must determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt—whether, on all the evidence, the Crown has met its onus of proving each element of the offences charged beyond a reasonable doubt.

[27] For a conviction of sexual assault on a child complainant, contrary to s. 271 of the Criminal Code, RSC 1985, c C-46, the Crown must prove beyond a reasonable doubt that the accused, directly or indirectly, intentionally touched the child complainant in circumstances of a sexual nature.

[28] For a conviction of invitation to sexual touching, contrary to s. 152 of the Code, the Crown must prove beyond a reasonable doubt that the accused invited, counselled, or incited a complainant who was under the age of 16 years to touch the body of any person, including that of the inviter, directly or indirectly, for a sexual purpose: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 59-61. The accused must intend that the touching be for a sexual purpose and be aware that the person counselled or invited to touch is under 16.

Analysis

[29] The complainant was a credible witness, and her version of events is possible. She is a smart young lady who spoke fairly and reasonably about what she alleges the accused did to her. The fact that the complainant does not remember precisely how some of the touching occurred does not mean that it did not happen because “children may not be able to recount precise details”: see W. (R.), at p. 133. Similarly, contrary to some of the defence arguments, the fact that the complainant did not appear uncomfortable around the accused and did not initially understand what allegedly happened and required time prior to disclosing her allegations are each and all inconsequential not only because of the complainant’s age and understanding, but more importantly because, irrespective of their age, victims of sexual assault react differently and such arguments are premised on prohibited myths and stereotypes.

[30] However, the fact that allegations are possible, or even probable, is far from the level of certainty that is required for the Crown to meet its onus.

[31] As explained above, a criminal trial is not a credibility contest. Rather, in a criminal trial the onus is always on the Crown to prove the guilt of the accused beyond a reasonable doubt. Here, when I consider the defence evidence in the context of all the evidence, I have a reasonable doubt about the guilt of the accused.

[32] The accused testified and he was also a credible witness, as were his wife and adult daughter. They each generally answered questions candidly, seemingly as best as they could, whether asked by the accused’s lawyer or by the lawyer for the Crown.

[33] All three made reasonable admissions, such as agreeing that certain things, like the accused occasionally being alone with a child, were possible. Moreover, their respective evidence was not contradicted or diminished in any material way during their cross-examination. Rather, they provided a consistent narrative, and although absolute answers were occasionally provided, candid admissions were also made such that overall, their evidence made sense and appeared credible and reliable.

[34] The accused denied all allegations. He explained that although he was possibly occasionally alone with a child, including with the complainant, the children were generally together or nearby.

[35] On that point, all three defence witnesses testified that the children were generally together as a group. This makes sense considering their evidence relating to the children’s activities and daily routine. It also makes sense considering their evidence relating to their supervision of the children. This evidence supports the accused’s narrative that even if he was occasionally with the complainant, other children were usually present or nearby.

[36] In addition, although the accused could have been occasionally alone with a child, including with the complainant, and therefore had opportunities to do what is alleged, as per the defence evidence, it would have been rare for such opportunities to have been longer than a moment and this would have been in an area of the accused’s house that was open—and where the accused’s wife, adult daughter, or another child might return or look into at any moment. Indeed, although the accused’s wife exaggerated when she described how she constantly supervised the children, I accept from all the evidence that she operated a well-run daycare, and, consequently, that she kept a fairly constant eye on the children, as did her daughter when she was present in 2019.

[37] As a result, considered in the context of all the evidence, the defence evidence leaves me with a reasonable doubt about the guilt of the accused.

Conclusion

[38] The accused is therefore not guilty of both counts on the indictment.

[39] I note that this decision was read to the parties on May 23, 2025, and published on the indicated date once the written version was finalized.

Roger J.

Released: May 26, 2025