COURT FILE NO.: CR-24-0235-00
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King
Ms. C. Krueger, for the Crown
- and -
Jacob Mazinakouskang
Mr. F. Carmie, for the Accused
Accused
HEARD: March 10, 11 and April 4, 2025 at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
WARNING
AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Criminal Judgment
OVERVIEW
1Jacob Mazinakouskang (also referred to as the “Accused”) is charged with one count of touching a person under the age of 16 years for a sexual purpose contrary to section 151 of the Criminal Code. The offence is alleged to have occurred on or about September 28, 2019.
2H.H. (also referred to as the “Complainant”, or the initials for her preferred name, A.H.), was approximately 6 years old when the offence is alleged to have occurred. She was 10 years old when she initially made the allegations and was 12 years old as of the time of trial.
3While there had been some contact prior to the date of the alleged incident, the Complainant and the Accused did not know each other. The Complainant alleges that on one occasion the Accused:
- made her sit on his lap;
- touched her thighs (inside and outside of the thighs), cheek, neck, stomach, and chest with his hands; and
- kissed her on the face and neck.
4The Accused denies the allegations.
5The evidence at trial consisted of the following:
a. Agreed Statement of Fact;
b. The oral evidence of:
i. T.C., mother of the Complainant;
ii. the Complainant;
iii. Officer Nicholas Cloutier (OPP); and
iv. the Accused.
6Central to a disposition in this case is an assessment of the credibility and reliability of the evidence of the Complainant and of the Accused.
THE EVIDENCE
7T.C. testified that on September 28, 2019, she walked A.H. to a friend’s house to play. Approximately one hour later, she heard her daughter crying. She saw her walking down the road towards the house with a vehicle following her. The person in the vehicle appeared to be trying to help. The child was visibly upset. She was “trembling and shaking”.
8T.C. took her daughter into the house and tried to speak with her to calm her down. A.H. told her mother that she was walking home from a friend’s house across from the park when the friend’s uncle “Jacob” followed her on his bicycle and began swearing at her because she would not give him a “high 5” or a hug.
9T.C. testified that A.H. was crying and upset for a “good hour”. Because of how upset the child was, T.C. asked her if she was sure that was all that happened.
10Within approximately 15–20 minutes of the child arriving home, T.C. called the police. She reported to police what the child had told her.
11Officer Cloutier testified that he was dispatched to deal with the harassment call from T.C. on September 28, 2019. He was informed that A.H., who was 6 years old, had been followed by the Accused. He did not speak with A.H. He spoke with two witnesses, Candace Paquette (the woman in the vehicle) and Chelsea Abernott. Candace reported having seen the child screaming at the Accused to get away from her. The Accused was on his bicycle and appeared to be intoxicated. Chelsea reported having seen A.H. and another child walking. She could hear A.H. yelling “stop – go away”. She believed the person she was yelling at to be Isaiah Mazinakouskang, although acknowledged it could have been Jacob.
12The officer also went to the home of John Mazinakouskang, who is the father of the friend A.H. went to visit, and whose home the incident is alleged to have occurred at. John told the officer that the Accused had left his home approximately an hour prior and had left to go to the Accused’s mother’s home.
13As none of these three witnesses were called to give evidence at trial, what they reported to the Officer is hearsay, and cannot be admitted for the truth of its contents. This evidence was admitted for narrative only as to what the officer did during his investigation. None of this hearsay evidence has factored into my decision.
14The Officer located the Accused shortly after 5 p.m. When the Accused opened the door to the residence, he appeared to the Officer to be very intoxicated. The Officer testified that he could smell alcohol on the breath of the Accused. He also observed that the Accused’s eyes were glassy, and he was leaning on the door. The Officer cautioned him about harassing the child. The Officer testified that the Accused said that ‘he meant no harm’ and he was just trying ‘to get a high-5’. The Officer reported this back to T.C. and nothing further happened.
15T.C. testified that this was not the first time she had been concerned about the conduct of the Accused with respect to her daughter. On one other occasion she confronted him in the community for swearing at A.H. A.H. had told her mother that she went to her friend A.M.’s home approximately a week before the September 28th incident and the Accused was there and started swearing at her.
16T.C. further testified that she began noticing changes in her daughter following September 2019, as she became increasingly withdrawn to the point that she would not go out and it became increasingly difficult to get her to attend school. Prior to September 2019, T.C. says that A.H. was a very social child.
17T.C. was with A.H. twice after September 28, 2019, when A.H. saw the Accused. The first time was the end of summer 2023 when T.C. and A.H. got on the community medical van for a clinic appointment. The Accused said “hi” to T.C. and asked if the child was her daughter. He tried to say “hi” to A.H., but she did not acknowledge him.
18The second incident was in November 2023. Public skating was taking place in the community and A.H. excitedly asked T.C. to take her skating. Because A.H. had become so withdrawn and had isolated herself so much, T.C. willingly took her to the skating rink. When they arrived, there was no one else present other than the Accused. T.C. testified that A.H. stated, “the creep’s here”, then she ducked down in the backseat and refused to get out of the car. T.C. assumed that A.H. feared the Accused because of the two prior incidents of harassment. She spoke to him about needing to realize how harsh his words were and how scary that would have been to a child. She told him he should apologize to her. The Accused did not respond. T.C. and A.H. left without skating.
19T.C. testified that she was uneasy about A.H.’s reaction to the Accused at the skating rink. She pressed her to determine if there was more to A.H.’s interactions with him than she had previously disclosed. It was approximately two days later when A.H. made the disclosure to her mother.
20A.H. told her mother that she was at her friend A.M.’s house. The Accused was also at the house. Her friend was upstairs. A.H. was downstairs. The Accused put her on his lap and was touching her thighs, kissing her neck, and touching her around her legs and bum. She said that she broke free, ran, and left the house. A.H. told her mother that she had not told her about this before because she knew she had broken the rules by going to the house where the Accused was. She did not want the police called.
21After some encouragement from her mother over time, A.H. agreed that her mother could call the police. In February 2024, she took A.H. to the OPP station to give her statement. T.C. also provided a statement, separate from A.H.
22T.C. testified that her daughter suffers from cognitive issues. The Agreed Statement of Facts references a report by Dr. Elaine Tombs dated May 22, 2024, prepared following a psychological assessment of A.H. The report itself was not tendered into evidence, nor were the qualifications of Dr. Tombs. The Agreed Statement of Facts references the following clinical interpretation with respect to A.H.:
Assessment results indicate that “A” is experiencing cognitive deficits that are likely contributing to difficulties related to social language, understanding, executive functioning challenges and broader comprehension difficulties. “A” meets diagnostic criteria for an Intellectual Developmental disorder in the Mid Range.
23T.C. also acknowledged that her daughter has experienced some considerable mental health issues, including suicide attempts. She went from a bright, happy, outgoing child, to one that would not leave the house. She began to wear baggy clothing and demonstrated fear and discomfort around men, including family members. T.C. acknowledged that in addition to this incident, A.H. suffered the loss of her father in October 2021, followed by her grandfather only weeks later. Her social isolation became considerably worse after the loss of her dad. She has been the victim of bullying at school. She identifies as transgender. While T.C. acknowledges that A.H. has had a lot happen in her short life, she states that the changes in her daughter began after September 2019.
Evidence of the Accused
24The Accused was 43 years old at the time of trial. He is in a relationship with his partner of 6 years. His partner has children and grandchildren, none of whom live with them.
25The Accused testified that he had never seen the Complainant before, but that he knew her parents. He denied having been in the same house as A.H. He denied having ever spoken with her. He denied having ever touched, kissed, hugged, or grabbed A.H. He recalls the police officer coming to his mother’s home and telling him to stay away from “some kids”, but he does not recall if the officer mentioned any names. He did not want to argue with the police, said “ok”, and closed the door.
26He further testified that he struggles with substance abuse and was intoxicated on September 28, 2019. He denies he was intoxicated to the point that he would not remember his actions. He believes he may have consumed between three to five beers. While at first, he testified that his memory was “100%”, in cross-examination he acknowledged that there are certain things he cannot remember about that day. The Defence, in argument, explained this as the Accused being 100% certain he did not sexually interfere with A.H. The Accused was teary and emotional when he stated he could never do anything like what is alleged. He stated that while he loves children, he has no attraction to them.
THE LEGAL FRAMEWORK
The Presumption of Innocence and Proof Beyond a Reasonable Doubt
27The Accused is presumed innocent of the charge unless and until the Crown proves his guilt beyond a reasonable doubt.
28To secure a conviction, the Crown must prove the essential elements of the charge beyond a reasonable doubt. This standard of proof is very stringent. If the Crown fails to meet this burden, the Accused must be acquitted. If the Crown succeeds in meeting the burden, the Accused must be convicted.
29Proof “beyond a reasonable doubt” has no precise definition. In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada outlined the definitive guide for criminal trial courts in Canada with respect to reasonable doubt. At para. 39 of Lifchus, the Supreme Court stated that reasonable doubt is based on reason and common sense. It is logically derived from the evidence or absence of evidence. While the Crown is not required to prove anything to an absolute certainty, a judge must be sure that an accused committed the offence before convicting them.
30As stated by Molloy J. in R. v. Nyznik, 2017 ONSC 4392, para 7, probable or likely guilt is insufficient. If all I can say is that the Accused is “likely guilty”, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the Accused guilty, I must be sure that he committed the offence charged.
31In R. v. Amodio, 2020 ONSC 8077, Dunphy J. highlighted these concepts and the challenge faced by judges in cases involving allegations of sexual conduct against children:
[56] Judges are neither omniscient nor magicians. The criminal standard of proof is set as high as it is set in our society for a very particular reason. It reflects a social choice to tolerate some crime going unpunished before allowing innocent people to be wrongly convicted. Even still, as with any system administered by fallible humans, our system is not perfect.
[57] Sexual assault in general and sexual assault of minors in particular raises these issues in the most terrible way. The nature of these crimes is that there is very often no forensic evidence of any kind and there are no witnesses save the accused and his or her victim. These are also the type of crimes where society’s interest in protecting some of its most vulnerable members is at its highest and most acute.
Reasonable Doubt and Sexual Assault Cases
32This is one of those cases in which there is no forensic evidence. The primary witnesses are a child and the Accused. It would be easy to turn this into a credibility contest in which I determine whether or not I prefer the evidence of the Complainant more so than the Accused. That, however, would be an incorrect legal approach.
33As Warkentin J. noted in R. v. A.K., 2019 ONSC 5160, paras 56-57, and the Ontario Court of Appeal noted in R. v. A.J.K., 2022 ONCA 487, paras 27-29, it is not appropriate to determine a verdict by saying “who do I believe?”. I cannot simply choose between two competing accounts of events. Such an approach erodes the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt.
34When there are competing versions of what happened, the Supreme Court of Canada provided the analysis to be followed in R. v. W.(D.), [1991] 1 S.C.R. 742. The analysis described at para. 28 of W.(D.) states:
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 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.
35Because the Accused chose to testify, the principles set out in R. v. W.(D.) apply.
36In considering the evidence I may believe all, some, or none of each witness’ evidence. Just because I disbelieve some of a witness’s evidence does not mean I must disbelieve it all.
37Particularly with respect to steps 2 and 3 of the W.(D.) framework, I must consider the evidence of the Accused in the context of all the evidence in the case, including the evidence of the Complainant. If, after considering all the evidence I am unsure as to who to believe, then the presumption of innocence and burden of proof on the Crown requires me to acquit: R. v. S.(J.H.), 2008 SCC 30, para 11.
38As Code J. explained the W.(D.) principles in R. v. Thomas, 2012 ONSC 6653, paras 23-24:
[23] [W.(D.)] does not describe three sequential analytical steps that a trier-of-fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account…, complete acceptance of the Crown witnesses’ inculpatory account…, or uncertainty as to which account to believe…
[24] A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.(D.) are simply different results, or alternative findings of fact, arrived at by the trier-of-fact at the end of the case when considering the totality of the evidence.
39Importantly, Paciocco J. (as he then was) in an article entitled “Doubt about Doubt: Coping with W.(D.) and Credibility Assessment”, (2017) 22 Can. Crim. L. Rev. 31, at pp. 45-46, explained with respect to the third W.(D.) rule that it “is meant to confirm that even after the total rejection of defence evidence, guilt is to be determined on the affirmative evidence that is credited, not on the simple fact that the defence evidence has been rejected.” As Paciocco J. further notes, this step is crucial to fair fact-finding in criminal cases:
As a matter of law, if individuals could be convicted simply because the exculpatory versions they have offered are rejected, this would reverse the burden of proof; they would be convicted because they have not proved their innocence.
In other words, rejecting the evidence of the Accused is not sufficient for a finding of guilt. I must be able to find that the Crown has proven the case beyond a reasonable doubt based on the evidence in the trial that I do accept.
Credibility vs. Reliability, and the Evidence of Child Witnesses
40Reliability has to do with the accuracy of a witness’ evidence, which requires an assessment of a witness’s ability to accurately observe, recall and recount events: R. v. L.D., 2021 ONSC 385, para 19, citing R. v. H.C., 2009 ONCA 56.
41Credibility has to do with whether the witness is telling the truth. A witness who is credible may not be reliable. Sometimes an honest witness may be mistaken in their recollection. Only evidence that is both reliable and credible, and addresses the essential elements of an offence, can support a finding of guilt beyond a reasonable doubt.
42A.H. is a child and was a very young child when the events are alleged to have occurred. The evidence of children requires special consideration and a common-sense approach. The Supreme Court of Canada has recognized that children may experience the world differently from adults, such that it may be wrong to apply adult tests for credibility to the evidence of children: R. v. W.(R.), [1992] 2 S.C.R. 122, paras 24-25.
43The Court of Appeal for Ontario has also recognized that child witnesses may not be able to recall events in the same detail as adults. Flaws and inconsistencies in their evidence are not necessarily treated in the same manner as would be the case of an adult. As explained by Juriansz, J.A. in R. v. J.J.B., 2013 ONCA 268, para 70:
[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:
[A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…While 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.
44In R. v. M.(A.), 2014 ONCA 769, para 11, Watt J.A. succinctly set out the following principles, many of which are relevant to this case:
[11] […] Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W.(R.), at p. 134 S.C.R. See, also, R. v. Kendall, [1962] S.C.R. 469.
[12] Fourth, one 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 has said on other occasions, whether or not under oath: R. v. G.(M.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. 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 an 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: G.(M.), at p. 354 C.C.C.
[14] Fifth, 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: R. v. M.(R.E.), 2008 SCC 51, para 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G.(M.), at p. 356 C.C.C.; R. v. Dinardo, 2008 SCC 24, para 31.
45While inconsistencies on minor matters or matters of detail are normal, a trial judge must exercise caution and be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral” to avoid having to address and weigh them: R. v. W.M., 2022 ONSC 3812, para 9.
46Overall, it is important to appreciate that child or youth witnesses may not be able to recall aspects of the allegations in the same detail as an adult. Having said this, the Crown’s burden of proof beyond a reasonable doubt is not lowered simply because the primary witness is a child. While it may be assessed somewhat differently based on the foregoing principles, the child’s evidence is still subject to the same standard of proof as the evidence of an adult.
POSITION OF THE CROWN
47The Crown argues that the burden of proof has been met with respect to the essential elements of the offence. The Complainant presented as credible and reliable in her recounting of events. Despite not having disclosed the sexual touching immediately, A.H.’s post-offence demeanour as observed by her mother on the date of the alleged offence and during subsequent encounters with the Accused is consistent with something having happened to her. The Officer’s observations of the Accused as being intoxicated are consistent with A.H.’s evidence, and the Accused’s admission, that he was drinking. Any inconsistencies with respect to A.H.’s evidence, or any inability to recall details are attributable to her young age, cognitive defects, and the passage of time. Despite this, she was able to recount the core allegations. A sexual purpose may be inferred from the nature of the touching.
48The Crown further argues that the Accused was neither credible, nor reliable, and his evidence should not be believed. He was observed by the Officer to be intoxicated on September 28, 2019. He denied having ever met the Complainant, which answer he changed in cross-examination. He also denied having been at A.M.’s house but changed his answer when pursued in cross-examination.
POSITION OF THE DEFENCE
49The Defence takes the position that the Crown has failed to meet the burden imposed on it to prove the offence beyond a reasonable doubt.
50The Defence argues that A.H.’s evidence is too dangerous to be relied on in that it is not sufficiently credible or reliable to rise to the standard of proof beyond a reasonable doubt. The Defence points to A.H.’s difficulty in testifying on the first day of court, and her many ‘do not know’ or ‘do not remember’ answers. The Defence also points to inconsistencies in the evidence of the child and her mother. More significantly, the Defence argues that A.H.’s inability to recall aspects of the alleged touching is concerning and goes to the core of the offence.
51In contrast, the Defence argues that Mr. Mazinakouskang’s testimony suggests that his recollection is more reliable. Despite some inconsistencies and a candid admission that he may have been intoxicated on the date in question, the Accused was unshaken in his testimony that he did not touch the Complainant and certainly did not touch her for a sexual purpose. The Defence urges me to find that Mr. Mazinakouskang was honest and genuine in his testimony.
52If I am inclined to find that the Accused grabbed the Complainant and touched and kissed her, the Defence argues that the Crown has not proved beyond a reasonable doubt that it was done for a sexual purpose. The Defence argues that the facts as presented equally lend themselves to the conclusion that this was an adult “just teasing a young girl”, and no sexual intent or purpose may be inferred from the conduct.
ANALYSIS
53In accordance with the principles referred to above, I must approach my analysis with the presumption that the Accused is innocent, and the Crown must establish his guilt beyond a reasonable doubt.
54The elements of the offence that the Crown must establish beyond a reasonable doubt are:
a. that the Complainant was under sixteen (16) years old at the time;
b. that the Accused intentionally touched the Complainant; and
c. that the intentional touching was for a sexual purpose.
55There is no dispute that A.H. was under the age of sixteen. On September 28, 2019, she was 6 years old and 7 months. Even if the alleged events did not occur on that date, the Complainant is not yet 16 years old. This element is established beyond a reasonable doubt. What I must determine is whether the Crown has proved beyond a reasonable doubt that the Accused intentionally touched A.H. for a sexual purpose.
56I find that the Crown has met the significant burden placed on it to establish guilt beyond a reasonable doubt that Mr. Mazinakouskang touched A.H. with his hands and his mouth, for a sexual purpose. While I believe the Accused was doing his best to tell the truth, I find his evidence unreliable. I find A.H.’s evidence with respect to the core allegations sufficiently credible and reliable that I am left with no doubt as to the essential elements of the offence.
Why I do not believe the evidence of the Accused
57In accordance with the legal principles I have explained above, I must start my analysis with the evidence of the Accused, considered in the context of the evidence as a whole, including that of the Complainant.
58While I was left with the impression that the Accused genuinely believes he did not touch A.H., this does not mean it did not happen. As I will explain in greater detail, I believe the evidence of A.H. and neither the evidence of the Accused, nor the other evidence cause me to doubt her account of events. Inconsistencies and frailties in the evidence of the Accused on important points cause me not to believe his evidence:
a. The Accused testified initially during his cross-examination that he was not at the home of his cousin on September 28, 2019. When pressed in cross-examination, he acknowledged that he may have been at the home to see if his cousin was there, but he denies having gone inside. This is the most significant concern I have with respect to his credibility – denying being at the place where the sexual interference is alleged to have happened when he acknowledges having been there (even if he has not acknowledged being inside). Even if the offence did not occur that day, this ready willingness to initially deny having been somewhere he knows he was – even if only there briefly – causes me concern as to his credibility.
b. The Accused testified in his examination-in-chief that he did not know A.H. and had never seen her. While I appreciate that A.H. at trial, being now 12 years old, must look quite different than the little girl he had previously met, the evidence is clear that he had encountered her and had various interactions with her. In cross-examination he did acknowledge having seen her in the community and on the medical van as described by T.C., but he denies ever having been introduced to her. I do not recall the incidents being put to him about T.C. confronting him in the community on two occasions (Robin’s and skating rink) and so these incidents have not factored into my decision. Even if he had not previously been introduced to her, he had seen her. His evidence that he had “never seen that kid in my life” was not accurate.
c. While initially stating that his memory is “100%” of the day in question, he subsequently acknowledged that it is hard to remember because of the passage of time, and that he had been drinking that day. He did deny that he cannot remember because he was too drunk. He testified he only had between three to five drinks. Based on the Officer’s observations and A.H.’s evidence that the Accused was drinking, I find that alcohol has likely played a role in his ability to recall accurately the events of the day and his conduct. I find that the Accused has either downplayed or cannot remember exactly how much he drank that day.
Why I am not left in doubt by the evidence of the Accused, and why I am convinced beyond a reasonable doubt of the guilt of the Accused
59A.H. testified that:
a. She gave a statement to police about “Jacob”. She had met Jacob before, but she did not remember where or what he was doing.
b. She did remember seeing Jacob at the “red brick building” (house) where her friend A.M. lived. They went to the park and played and then went back to A.M.’s house where she lived with her dad and siblings. She does not remember if they went to the park before or after the incident with the Accused.
c. A.M.’s siblings were home at the house and so was Jacob. She does not remember what the siblings were doing but does remember the Accused sitting on the couch. The siblings were not in the same room. A.M. was in the room for a short time and then went upstairs. A.H. stayed downstairs with the Accused. She does not remember if she had seen the Accused at A.M.’s house before.
d. She thinks it was summer because it was sunny outside. It was daylight. She does not remember how old she was, perhaps 7 or 8 years old. She does not remember what she was wearing.
e. She remembers the Accused sitting on the couch drinking alcohol. She saw the alcohol in his hand and on the table. She does not remember what she was doing. She was standing by the couch, which she thinks was in the living room. The Accused made her sit on his lap, he touched her thighs and was touching her neck and cheek. He kissed her two times.
f. A.H. was asked to colour on a drawing of a female child the parts of her body the Accused touched with his hands. She coloured her entire stomach and abdomen, her upper thighs, and her lower back. She was then asked to colour on a separate drawing of a female child where his lips touched her body. She coloured one cheek and the right side of the back of the neck.
g. A.H. testified that she does not remember if the Accused said anything or what he was doing with his body. She did not initially remember how she was feeling during the incident, but when provided with an “emotions poster” to colour in the emotion she recalls, she coloured the “scared” emotion.
h. When asked for further details, she could not recall specifically how the Accused touched her back. She remembered it was around the waist. When asked how he was touching her thighs she thought he was “rubbing”. She testified he rubbed both the inside and outside thigh. She does not remember how he was touching her stomach and her chest (which was not coloured on the female child picture). There is no allegation that the touching was under clothing.
i. She remembered she felt uncomfortable after she left A.M.’s home. She was allowed to leave. She does not remember if she walked home alone or not. She did not think anyone was with her. She does not remember what happened when she got home, just that both her parents were home. She could not remember if it was still sunny when she was walking home.
j. She did not tell anyone that he touched her, because she thought she would get in trouble. She was not supposed to go to A.M.’s house, but she did. Eventually she did tell her mom.
k. She believes A.M. told her the name of the Accused and that he is her cousin “or something”. She provided a description. She could not remember when A.M. told her this.
l. She remembers seeing the Accused a year or two later when she was going skating. She became uncomfortable when she saw him. She “thinks” her mom spoke with him to try to get him to apologize to her for making her scared, but he did not.
m. When asked what happened that made her scared, she described him chasing her down on a bike on a road. She could not remember what he said or why he was chasing her. She believes he was yelling but she could not make out the words. She thinks someone else saw this but doesn’t know how she knows this. She remembers telling her mom about this. She thought this happened before he kissed her but does not know. She spoke about going back to A.M.’s house and this is when the incident happened. I was not clear whether these events all happened on the same date. She did not say that it was the touching that made her scared when she saw the Accused again.
60I acknowledge that there are some concerns with respect to A.H.’s evidence, but in my view, they do not undermine the credibility or reliability of her recollection of the core allegations and they do not cause me to have doubt that she was touched in a sexual manner by the Accused. Specifically:
a. On the first day of her evidence A.H. had considerable difficulty responding to the questions asked of her. She often responded that she either could not remember, or occasionally she said that she did not know how to respond. It was clear that the court experience was challenging for A.H., and she required a break overnight.
Upon return the next day, A.H. was granted permission (no objection from the Defence) to put her hood up on her sweatshirt. She was asked more child focused questions. She was given diagrams to help her draw the events she struggled to describe.
The Defence argues that she was given the opportunity overnight to rethink what she was going to say to the court. In my view, this was a child who clearly had considerable discomfort speaking about the events. The open-ended, broad questions she was asked on her first day of evidence were difficult for her. I am mindful that being at court was visibly uncomfortable for her. She is also a child with cognitive difficulties related to comprehension.
b. Despite the overnight break, the Defence is correct in arguing that there remained many questions that A.H. could not answer, and therefore there are some missing pieces to this story. A.H. did not recall, or accurately recall, many details. She thought she was 7 or 8 years old, when she may have been 6 years old if events transpired September 28, 2019. She thought the skating incident was a year or two after the alleged events, which could be consistent with her being 8 years old, but not September 2019. She did not remember the date but guessed it was summer because it was sunny. She could not remember what was said to her or exactly how she was touched. She could not remember why she was in the living room at her friend’s home. She could not remember how long the grabbing and touching went on for, and guessed it was a few minutes that the Accused held on to her. She thought she was ‘sort of standing’ but also on the lap of the Accused. She could not remember how she broke free from the Accused. She did not remember her mother walking her to another friend’s house, and in this regard her evidence was inconsistent with that of her mother. She did know the house she was at when events transpired was not where she should have been. She did not remember walking home with anyone. She believes her friend A.M. told her the Accused’s name, although she could not remember when. She described the Accused chasing her on a bicycle, but it was not clear that she understood this to be the same day of the touching, and she testified she thought the Accused chased her on his bicycle before he kissed her, but that she does not know. Her evidence suggested that some things about the bicycle incident had been told to her – such as what other people may have seen. It was not clear to me that she had an independent recollection of the bicycle chase, but it was clear that despite some considerable challenges with dates, times, and other details, she did have an independent recollection of having been touched and kissed by the Accused. This is not intended to be an exhaustive list.
A.H. was a very young child on September 28, 2019. She was still quite young at the time of trial. Whether or not this incident happened September 28, 2019, I am satisfied that it did happen. The details she fails to remember or confuses are consistent with her young age at the time of the events and the passage of time that may span up to half her lifetime. She was only 12 years old when she testified. Again, this is a child that also experiences cognitive deficits that impact comprehension and other areas. The flaws in the child’s evidence are understandable. This is one of those cases that requires a common sense approach as directed by the Supreme Court of Canada in R. v. W.(R.) and R. v. B.(G.). On the core aspects of the allegations, being that she was kissed on the back of her neck, cheek, and touched on various parts of her body including her inner thighs, A.H. remained consistent. While she struggled to remember various aspects of September 28, 2019, and to describe others, I am satisfied beyond a reasonable doubt that this child knows what happened to her. Neither the evidence of the Accused nor the evidence of her mother on inconsistent points leaves me with doubt on the core allegations.
61With respect to A.H.’s cognitive defects, there is no evidence to suggest that they are such that she may be inclined to significantly misinterpret the events described or fabricate them. While A.H.’s cognitive defects may partially explain her inability to answer some questions, they do not give me cause to doubt the credibility or reliability of her evidence on the core allegations.
62The Crown argues that in rejecting the Accused’s evidence and accepting A.H.’s evidence I may consider T.C.’s evidence as to A.H.’s post-offence demeanour on September 28, 2019, the changes observed in A.H. following this date, and her reaction to seeing the Accused at the skating rink in November 2023. The Crown relies on R. v. A.J.K., 2022 ONCA 487, paras 40 and 244.
63The Defence argues that this child had a number of other traumas and issues she experienced. The child was also not clear that the bicycle incident investigated by police on September 28th occurred the same day as the alleged assault. The Defence argues it would be dangerous in this case to place too much weight on this evidence in support of a conviction.
64In A.J.K., at para. 43, the Ontario Court of Appeal recognized that a complainant’s emotional disintegration after an alleged offence may be relevant to whether, as a matter of common sense and human experience, the events occurred as described by the complainant. In A.J.K., the court concluded that based on the facts of that case it was a reasonable inference that the complainant was emotionally devastated because something emotionally devastating happened to her. While a conviction should not stand or fall on evidence of a complainant’s demeanour following alleged events, it is part of the factual matrix that a trial judge is permitted to consider in resolving issues of credibility.
65In this particular case, A.H. was dealing with a lot of difficult things as a child. In September 2019 her father was ill. I do not know when the bullying she experienced started. I accept her mother’s evidence that events of September 28, 2019, scared her, that she was crying and trembling, and that there were noticeable changes in A.H. following this date. I accept that A.H. was scared when she saw the Accused at the skating rink and reacted by calling him a creep. This evidence alone does not lead to the conclusion that she experienced sexual interference at his hands or that it happened on September 28, 2019. We do know there is a history of the Accused having yelled and swore at this child and on another occasion chasing her on his bicycle. This alone may have caused a scared reaction in a young child when she saw him again. In this regard, I also agree with the Defence that it would be dangerous to draw an inference that the child was sexually assaulted by the Accused.
66For these reasons, I find beyond a reasonable doubt that the Accused touched A.H. with his hands on her lower back, her abdomen and stomach up to her chest, on the inside of her thighs, and on the outside. I further find that he kissed her on her cheek, and on the back of her neck. I find that his actions were intentional, and not accidental.
Was the intentional touching for a sexual purpose?
67The Defence argues that if there was touching, it was more in the nature of “joking” or horseplay. The Crown argues that the nature of the touching belies any type of innocent horseplay.
68Touching is done for a sexual purpose if it is done for the accused’s sexual gratification, or to violate the Complainant’s sexual integrity.
69To determine the purpose of the touching, I am to consider all the circumstances surrounding it. I am to consider what was said and what was done. I am to take into account the parts of the body that were touched and the nature of the contact. In doing so, I am to consider whether, in all the circumstances, I am satisfied beyond a reasonable doubt that the Accused had a sexual purpose when he touched the Complainant.
70I am satisfied beyond a reasonable doubt that the nature of the touching reveals a sexual purpose. The Accused was almost 38 years old on September 28, 2019. A.H. was 6 years old and 7 months. He was an adult not known to this child. There is no evidence of any interaction between them on this day or otherwise consistent with horseplay. A.H. was asked if the Accused could have been joking with her and she said she did not know. This was a fair answer – she could not have known what his intention was. The touching of A.H.’s various body parts, most notably her inner thighs, combined with kissing the back of her neck and forcing her to sit on his lap cannot be construed in these (or most circumstances) as an innocent interaction between an adult and a child. This conduct, which may not have been done for the sexual gratification of the Accused, was nonetheless a violation of the Complainant’s sexual integrity.
In-dock identification and possible third-party suspect
71The Accused gave evidence that he is often mistaken for his brother, who is only ten months older than him. While there was no formal alternate suspect evidence application, the suggestion was that if something happened to A.H., it may not have been by the Accused but rather someone who resembled him. The Officer’s evidence was that an eyewitness was not sure which of the two brothers she saw pursuing A.H. on the street.
72Generally, an accused is permitted to adduce evidence tending to establish someone else as the culprit of the offence for the purpose of raising a reasonable doubt of their own responsibility.
73When considering alternative suspect evidence, it is not for the trier-of-fact to determine if the alternate suspect is the culprit. Only whether the "possible involvement of a third party raises a reasonable doubt" about the guilt of the accused: R. v. Tomlinson, 2014 ONCA 158, para 78.
74This type of evidence can only be raised where there is sufficient evidence to connect a third-party to the offence. The alternative suspect must have a sufficient provable connection to the offence and cannot simply be speculative: R. v. Grandinetti, 2005 SCC 5.
75The only evidence of a possible alternative suspect was hearsay evidence. There was nothing in the evidence of the Accused or anyone else, other than the hearsay uncertainty of one witness as to which brother she saw, that placed the brother of the Accused anywhere near the Complainant on September 28, 2019 or at any other time. There was no evidence that the brother was at the home of A.H.’s friend on the relevant date. There was no evidence of any interactions whatsoever between the brother and the Complainant. The Complainant gave a description of the Accused that partially included the word “chubby”. The Officer testified that the Accused’s brother was larger than him (chubbier). Having said this, the description could have still applied to the Accused. There were no photographs of him from the time of the alleged events that suggested this was incorrect, or testimony from the Accused himself on this point. It was never put to the Complainant that she may have mistaken the Accused for his brother. She was asked in cross-examination if she was a 100% sure that it was the Accused, to which she replied “yes”. The suggestion that the brother of the Accused may have been the culprit does not raise reasonable doubt.
76Because of the suggestion by the Defence as to confusion between the Accused and his brother, A.H. was asked by the Crown to perform an in-dock identification of the Accused. I was reluctant to require this child to face the Accused, in-person, in the courtroom. Children testify from a separate CCTV room in which the Accused is not in view. This is done to protect them from additional trauma. Additionally, it was very evident to me that the Accused was the only Indigenous person in the courtroom. He was the only person other than counsel and court staff. He was the only person not wearing a court robe. Police staffing made it initially difficult to have him removed from the prisoner’s box. Even placing him at the counsel table with the only two other individuals in the room who were not staff could not overcome the frailties of any identification. An in-dock identification had no probative value, but potentially a very detrimental impact on the child witness.
77The Crown argued that the identification was necessitated by the Defence raising identity as an issue. I noted the Defence required the identification given their theory that if there had been sexual interference with the child on September 28th, it was not by the Accused. The Defence confirmed that identity was an issue, taking the position that a positive identification held little to no probative value but a failure to identify the Accused could be crucial to his right to make full answer and defence.
78With reluctance, the child was asked to identify who touched her on September 28th, 2019. She pointed to the Accused. I gave this positive identification no weight in arriving at my decision.
DISPOSITION
79For the above reasons, I find the Accused guilty on count 1 on the indictment.
“original signed by”
The Hon. Madam Justice T. J. Nieckarz
Released: June 26, 2025
[1] Upheld by the Ontario Court of Appeal, R. v. A.K., 2022 ONCA 508.