Court and Parties

OSHAWA COURT FILE NO.: CR-23-00016350-0000
DATE: 2025-06-24
ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
His Majesty the King
– and –
B.B., Defendant

Appearances:
K. Buker, for the Crown
R. Chu, for the Defendant

Heard: in person on April 7, 8, 9, and 10, 2025 and by videoconference on April 25, 2025

REASONS FOR JUDGMENT
McCarthy J.

Introduction

[1] The Accused is charged with one count of the following Criminal Code offences: sexual assault, invitation to sexual touching, sexual interference, confinement, and administering a noxious thing. These offences are alleged to have occurred between March 31, 2017 and January 3, 2022.

[2] The alleged victim and complainant is the biological daughter of the Accused, who I will refer to simply as the “Complainant”.

[3] The Complainant recounts having been the victim of hundreds of sexual assaults committed by the Accused over the span of six years when the Complainant was between the ages of 4 and 9. The Complainant is now 13 years old.

[4] The Complainant gave two videotaped statements to the police: one on February 16, 2022 (“video statement #1”), and a second on March 3, 2022. The March 3 video statement was admitted into evidence at trial pursuant to s. 715.1 of the Criminal Code (and will thus be referred to as the “s. 715.1 statement”). Portions of video statement #1 were entered during the cross-examination of the Complainant.

[5] The Complainant gave evidence from a remote location at trial. The Complainant adopted as true the contents of the s. 715.1 statement. The Complainant was cross-examined on both videotaped statements.

[6] The Accused gave evidence at trial and denied that the offences in question took place.

Crown’s Position

[7] The Crown asserts that the Complainant’s s. 715.1 statement was articulate, forthright, and compelling. The Complainant was 9 years old at the time and her memory of these historical sexual assaults was vivid and detailed. The Complainant presented as an honest witness. The court should not read too much into the Complainant’s lack of present memory and other frailties in her evidence at trial in light of her present age, her obvious discomfort in having to provide details of these unpleasant events again, and the rigorous experience of cross-examination. When assessing the evidence of children, the court must be guided by the principles established by our higher courts. This evidence must be assessed having regard to a child’s mental development, understanding, and ability to communicate. As stated by the Supreme Court of Canada in R. v. W. (R.), [1992] S.C.R. 122, at p. 133: “…since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.”

Defence Position

[8] The Defence contends that even if the court does not outright accept the exculpatory evidence of the Accused, the Crown has not proven the Accused’s guilt beyond a reasonable doubt. The Complainant was not a credible witness. The Complainant’s evidence was inconsistent and uncorroborated. It would be dangerous to enter a conviction in these circumstances.

[9] The Defence argues that there was a general lack of opportunity for there to have been hundreds of sexual assaults in those 5 or 6 years. While the court does not need to find a motive to fabricate, both the positive reinforcement and coaching the Complainant received during her statements leave room for the distinct possibility that the Complainant was simply anxious to please authority figures. The vivid detail and graphic descriptions in the Complainant’s s. 715.1 statement are more likely the product of a fantastical imagination or information derived from unbridled access to the internet.

[10] Finally, the Defence suggests that the Accused was honest in his testimony. He did not exaggerate or attempt to cast blame for where these allegations might have come from. The Accused admitted to facts that were against his interest (e.g., that he allowed the Complainant to have some alcohol and administered her a melatonin-infused beverage) and that he did spend some time alone with the Complainant during the years in question. He was credible and should be believed.

R. v. W. (D.)

[11] Because the Accused testified, the court is obliged to approach the evidence via the three-step process laid down by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742. If I accept the exculpatory evidence of the Accused, I must acquit; even if I do not accept the exculpatory evidence of the Accused, if it leaves me with a reasonable doubt that he committed the offences in question, I must acquit; and even if that exculpatory evidence does not leave me with a reasonable doubt, I can only enter a conviction if the totality of the evidence persuades me beyond a reasonable doubt about the Accused’s guilt.

The s. 715.1 Statement

[12] The content of the Complainant’s s. 715.1 statement was indeed graphic and detailed. It was also highly disturbing.

[13] The Complainant described being sexually assaulted by the Accused in five different locations:
i) a residence featuring a detached garage with two rooms, a “man cave” and a “tool room”;
ii) a basement apartment;
iii) a three-level residence;
iv) an apartment in Newcastle; and
v) a storage unit.

[14] The detached garage was the scene of four sexual assaults during an 8-day access visit with the Accused after Christmas and into the New Year’s period of 2021-2022, a few weeks before the Complainant went to police. The Complainant described a particular incident when her brother (who I will refer to as “X”) was present but distracted playing darts. The Complainant was sitting on the Accused’s lap when he placed his hand under her shirt and touched her nipples and breasts.

[15] The Complainant described the incident at the basement apartment that followed a family visit to Toronto. The Accused brought the Complainant back to the basement apartment to watch a movie. The Complainant claims to have fallen asleep on the couch and then awoke to find the Accused sexually assaulting her.

[16] At the three-level residence where she resided with the Accused, the Complainant claims to have been sexually assaulted probably a hundred times over a three-year period. Prior to some of these assaults, the Accused administered a sleep potion to the Complainant, which made her drowsy.

[17] At the apartment in Newcastle, the Accused would push a large dresser in front of his bedroom door prior to sexually assaulting the Complainant.

[18] Finally, the sexual assaults at the storage unit were often preceded by the Accused enticing the Complainant to attend with him so she could enjoy a ride on her bike.

Discussion

[19] While W.(D.) would direct me to first consider the exculpatory evidence of the Accused and determine whether I accept it or whether it leaves me with a reasonable doubt, I find it more expedient to consider the Accused’s evidence alongside the evidence of the Complainant and simply determine whether the Crown has met its onus to prove the Accused guilty of these offences beyond a reasonable doubt.

[20] In weighing the Complainant’s evidence, I am guided by the authorities on assessing the evidence of children that caution against the reliance on rigid stereotypes and mandate a common sense approach to an assessment of a child’s evidence according to their mental development, understanding and ability to communicate: W.(R.), at p. 134. I am also guided by the comments of Justice Molloy in R. v. Nyznik, 2017 ONSC 4392, at paras. 15 and 16:

Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions.

[21] After a consideration of the totality of the evidence, I am left with a reasonable doubt as to whether the alleged offences took place.

[22] My reasons are as follows.

[23] I agree with the Crown that on its face, the s. 715.1 statement was graphic and contained a remarkable amount of detail. My problem with the statement, viewed in its entirety, is the sheer number of occasions on which the assaults allegedly took place. In all but one scenario (the basement apartment assault after the movie), the Accused and the Complainant would have been in close proximity to others in the various residences and even in the man cave. I find it implausible that hundreds of sexual assaults would have occurred for over 5 or 6 years (an average of perhaps 15 to 20 per year) without at least one person coming upon the assault or hearing, seeing, or suspecting that something untoward was happening on at least one occasion. This is especially so because the incidents as described included repeated forced anal penetration of a child who was perhaps 9 years old with others present nearby. It is unlikely that all these episodes of a violent and invasive nature would go completely undetected by others in the household (such as the Complainant’s mother, her step-siblings, her brother X, and her paternal grandmother).

[24] In cross-examination, the Complainant had very little present recollection of the very details she had provided to DC Charbonneau, even though she had reviewed the s. 715.1 statement on multiple occasions, as many as four times and most recently, in the days leading up to trial. While there is no longer a legal requirement for children’s evidence to be corroborated to support a conviction, the absence of a corroboration requirement “does not prevent the judge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case”: W.(R.), at p. 132. Absent confirmatory evidence, the Complainant’s limited recollection, combined with the inconsistencies between her testimony and the video statements as will be discussed below, is particularly concerning.

[25] The Crown asks me to consider how the experience of the court proceeding, the present age of the Complainant, the rigorous nature of the cross-examination, and the Complainant’s obvious discomfort with providing graphic details of humiliating sexual acts dating back years should help to explain this lack of present memory. Taken together with the compelling content of the s. 715.1 statement, the court should be prepared to give significant weight to the statement.

[26] In R. v. F.(C.C.), [1997] 3 S.C.R. 1183, at para. 44, the Supreme Court held that where a videotaped statement under s. 715.1 is adopted by a complainant, who does not have a present recollection of the events, the trier of fact should be given a special warning of the danger of convicting based on the video statement alone. Cory J. was obviously referring to a “warning” to be given to a jury. For a trial judge, that warning should take the form of a recognition of the dangers of convicting based on the video statement alone. It is difficult to fairly test the reliability of the contents of the s. 715.1 statement through cross-examination if the Complainant has no recollection of the alleged incidents.

[27] And this was not simply a defect in memory or patchy memory. When the Complainant was questioned about the sexual activity she had detailed in her s. 715.1 statement at trial and at the preliminary hearing during her cross-examination, she claimed to have no memory of anything sexual happening or of having her private parts touched in the kitchen, the bedroom, the man cave, or the tool room.

[28] In addition to the troubling absence of present memory for the many assaults alleged, there were also glaring inconsistencies between the contents of the s. 715.1 statement, video statement #1, the evidence from the preliminary hearing, and Complainant’s evidence at trial:

• In video statement #1, the Complainant told the police that sexual things occurred four times in the tool room during the 2021-2022 Christmas/New Year’s access visit a few months before. At the preliminary hearing, the Complainant initially testified that two sexual events occurred during that visit but neither in the tool room. Her evidence changed later on at the preliminary hearing when she testified that she was “pretty sure” that sexual things occurred in the tool room only one time. At trial, when asked specifically whether anything sexual happened in the tool room during that visit, her only response was “I think so, yeah.”
• The Complainant was asked at trial about where she had been sexually assaulted at her father’s residence. She stated, “In my dad’s room, in the garage I think”. At the preliminary hearing, the Complainant testified that something might have happened in the bedroom or the kitchen. Yet, there was no mention of the bedroom or the kitchen in the s. 715.1 statement, which was vivid with recollection and replete with detail.
• Recalling the most recent visit during the Christmas/New Year’s access period, the Complainant distinctly recalled the Accused rubbing her nipples in the man cave while X played darts a few feet away. Despite having watched her s. 715.1 statement days before trial, the Complainant’s response to the question of what happened at the man cave side of the garage was “I forgot”.
• In her s. 715.1 statement, the Complainant told DC Charbonneau that the Accused would serve her alcohol during every visit with him. Yet at trial, she testified that this was not the case.
• When asked about sexual interactions at the basement apartment, the Complainant offered very unsure responses, such as “I’m not sure” and “I think it happened, but I don’t remember exactly”. As for the number of occasions the sexual incidents occurred at the apartment, she answered hesitatingly that it was “probably more than once.” This contrasted with the information provided in the s. 715.1 statement that sexual things happened roughly 10 times. And at the preliminary hearing, when asked about her memory of the sexual occurrence when she was alone with the Accused at the apartment, she replied, “I can’t really remember at all.”
• At trial, she was asked to provide details of the sexual assault at the apartment but declined to do so, first stating that she did not know how to describe it and then stating that she really did not want to say those words. When pressed, she suggested that her vagina was being touched, but she could not describe how or whether she was awake or asleep during the assault. She did not remember her nipples or “butthole” being touched. This contrasts sharply with the detail provided in her s. 715.1 statement when she offered police very graphic details of the apartment assault – namely, the Accused had put his penis in her “butthole”, forced his penis into her mouth, and put his mouth on her nipples and vagina.
• In her s. 715.1 statement, the Complainant’s estimate of the number of sexual assaults that occurred at the three-level residence was “probably a hundred”. At both the preliminary hearing and the trial, she adjusted her estimate to between 5 and 20 times. Even allowing for the understandable frailties in a child witness’ appreciation and perception of time and place, this is wildly inconsistent and highly damaging to the credibility of the Complainant’s narrative. The court cannot accept her explanation that she was merely rounding up when providing these estimates.
• In her s. 715.1 statement, the Complainant told police that the sexual assaults at the Newcastle residence took place in the Accused’s room with the Accused blocking the unlocked door with a closet or a dresser. The Complainant adopted her preliminary hearing evidence and had a recollection of the dresser but could not say that any sexual activity took place in that bedroom. When asked whether there was any sexual activity happening in that room with the dresser, her response was “I don’t know” and when asked if she remembered if the dresser was involved in any manner on any of the days when the Accused allegedly assaulted her, she answered, “I don’t – I don’t know. I don’t think so.”

[29] I found the exculpatory evidence of the Accused to be measured and reasonable. Considered alongside the many frailties in the Complainant’s evidence, it leaves me with a reasonable doubt as to the guilt of the Accused on the sexual offences.

[30] The Crown has failed to prove its case on forcible confinement. The evidence does not establish that the dresser was involved in any way in the alleged sexual assaults, and there is no suggestion that confinement independent of the sexual acts ever took place.

[31] Finally, on the charge of administering a noxious thing with intent to endanger or cause bodily harm, the Crown has failed to prove the essential element of intent. I accept the evidence of the Accused that while he likely made a mistake in judgment by administering the Dream Water to his young daughter, he did so in order to calm her down and help her sleep. I heard no evidence that melatonin is a noxious thing but if it is, I accept that the Accused administered it to his daughter for her own good, not with any intent to harm and certainly not to put her to sleep to commit sexual acts upon her. I can fairly take judicial notice that melatonin is an over-the-counter supplement, the use of which has become commonplace. The Accused admitted his wrongdoing in giving his underage daughter a sample of alcohol. However, I am unable to find that he did so with intent to harm her or endanger her life. Both the Accused and the Complainant testified that the sample was a small one. I accept that the Accused’s hope was that his daughter would dislike alcohol and that he had no dark intentions in mind.

Disposition

[32] For the foregoing reasons, the Crown has failed to prove that the Accused is guilty beyond a reasonable doubt of the charges on the indictment. It would be highly dangerous to convict on the evidence that I heard.

[33] I would therefore enter an acquittal on all counts.

[34] The Accused is free to go.

[35] I thank counsel for their excellent presentation of their respective cases and for their helpful written submissions.

McCarthy J.
Released: June 24, 2025

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.