Court File and Parties

Court File No.: CR-09-694
Date: 2025/07/03
Court: Ontario Superior Court of Justice
Between:
His Majesty the King (Crown)
and
S.M. (Accused)

Crown Counsel: Kerry Watson
Accused: Self-represented
Amicus Curiae: Robert Richardson
s. 486.3 Counsel: Paula Rochman

Heard: May 12, 13, 14, 15, 16, 20, 21, 22, 23 and 26, 2025 at Napanee

Restriction on Publication:
An order has been made pursuant to subsection 486.31(1) of the Criminal Code, directing that any information that could identify a witness will not be disclosed in the course of the proceedings.

Gardiner Hearing Decision

Justice A. Doyle

Overview

[1] The accused, S.M., pled guilty to two charges of sexual assault, against his biological daughters, V.M. and M.G.

[2] S.M. admits that he rubbed his naked erect penis on his two daughters’ naked vaginas. He denies that he penetrated or touched either of his daughters with any other part of his body. He also denies that the incidents occurred at the places alleged by the complainants except for one incident at the family home in Peterborough and at the Rexdale house in Toronto.

[3] By pleading guilty, S.M. admitted the elements of the offence of sexual assault.

[4] The Crown proceeded to call evidence on a Gardiner hearing, seeking to prove aggravating facts. The Crown alleges that S.M. sexually assaulted M.G. and V.M. each seven times which included S.M. rubbing his penis on their vaginas, attempting to penetrate their vaginas with his penis, oral sex and digital penetration of their vaginas.

[5] At a Gardiner hearing, the Crown bears the burden to prove the disputed facts beyond a reasonable doubt.

[6] If S.M. wishes to prove a disputed fact, he must prove it on the balance of probabilities.

[7] At a Gardiner hearing, disputed facts can be proved by any evidence including hearsay that is “credible and trustworthy”. See R. v. Gardiner; R. v. Albright.

[8] The court had the assistance of amicus and s. 486 counsel. The latter was discharged on May 16, 2025 upon the request of S.M.

[9] The Crown concedes that the evidence does not prove beyond a reasonable doubt that S.M. penetrated the complainants with his penis.

[10] In this decision, I will give a brief background, provide legal principles and then make findings based on the evidence.

Background

[11] At the end of the Crown’s case and on consent, the court permitted an amendment of the dates on the indictment to correspond with the complainants’ evidence.

[12] The charge as it relates to V.M. (born January 1993) is alleged to have occurred between January 1, 2000 and January 12, 2005, when V.M. was seven years old until she was in Grade 6 (approximately 12 years old).

[13] V.M. described four incidents of sexual assault which occurred at her home on Manitou Street, Amherstview, Ontario (“the Manitou Home”) and three incidents at the Bath Institution.

[14] With respect to M.G. (born February 1987), the sexual assaults were alleged to have taken place between January 1, 1993 and February 2, 1998 when she was six years old until she was ten years old (when the family moved to Kingston).

[15] M.G. testified to seven sexual assaults which occurred at her home, in a hotel, at her uncle’s home and at her paternal grandparents’ home.

[16] On his guilty plea, S.M. admitted the following facts set out below verbatim (except the names are anonymized):

• I, S.M. did commit a sexual assault on V.M. (sic), contrary to section 271 of the Criminal Code of Canada. The sexual assault happened in the later part of the year, in 2002. While I am not aware of the exact number of times that I assaulted her, it happened in Amherstview while we were living there. The assaults were infrequent. V.M. (sic) would sit on me while I was sleeping and as a result I would get an erection and wake up and rub the erection on her.

• With regard to M.G. (sic), between the 1st day of January 1995 and the 31st day of May 1996, at the City of Toronto, and elsewhere in the Province of Ontario, I did commit sexual assault upon her, contrary to section 271, of the criminal code. M.G. (sic) would come and lie down with me while I was napping, again I would get an erection, and I would rub my penis on her vagina. This happened at my parent’s home at 10 Wickham Court in Rexdale, Ontario and in my home in Peterborough Ontario.

• With both girls I rubbed my bare penis on their naked vaginas. At the time I was a daily drinker and committed these acts while I was intoxicated, and when no one else was present in the room. I really do not remember each occurrence with each child.

• These are the facts that I am pleading guilty to, I deny any other type of sexual activity with my daughters including penetrating either of my daughters with any part of my body.

[17] A plea inquiry was conducted of S.M.

[18] The court heard from three Crown witnesses: the two complainants and their mother U.P.

[19] S.M. called his son E.M., his brother R.S., his sister A.V., and his uncle R.P. as witnesses. S.M. did not give evidence, nor was he under any obligation to do so.

Overarching Legal Principles

[20] I will briefly explain the law on:

• Reasonable doubt;
• Assessing a witness’ credibility and reliability;
• Adults testifying of events that took place during their childhood;
• Motive to fabricate;
• Delaying in reporting sexual assault alone will not give rise to an adverse inference; and
• Avoiding stereotypes and myths about how victims will react to sexual assault.

[21] A reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack thereof.

[22] It is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof of probable or likely guilt.

[23] The court must weigh the evidence of each witness in the context of the evidence as a whole. The court may accept all, some, or none of a witness’s evidence: R. v. R.B., 2017 ONCA 74, para 9. The court must assess each witness’s credibility, which has to do with the witness’s honesty or veracity, and each witness’s reliability, which has to do with the accuracy of the witness’s testimony.

[24] In determining the issues in this hearing, the court must not only consider whether the complainants were credible, that is sincere and believable, but also carefully consider the reliability of the evidence given the passage of time.

[25] Even if the complainant appeared to be “sincere,” “truthful,” and “honest” and the complainant believed what she was saying, it does not follow necessarily that what she was saying was reliable. Credibility alone, in this sense, is not enough.

[26] Jurisprudence has accepted that memory is fallible and even a convincing and credible witness may not be accurate or reliable. The court must carefully scrutinize contradictions and inconsistencies in the evidence. The court cannot rely on the sincerity or demeanor alone of the witness if there are issues with conflicting evidence or inconsistencies.

[27] The court is also mindful of the principles articulated by the Supreme Court of Canada in R. v. W. (R.), at pp. 133-34, which states the need to consider the evidence of the adult testifying as to childhood events “in the context of the age of the witness at the time of the events to which she is testifying”.

[28] At page 134 the Supreme Court stated:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[29] A lack of proven motive to fabricate does not equate to absence of motive.

[30] The distinction is described in R. v. John, 2017 ONCA 622, para 93:

The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, para 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: R. v. L. (L.), at para. 44. [Emphasis added.]

[31] Delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant: see R. v. Marshall, 2017 ONCA 1013, paras 19-21; R. v. Watson, 2019 ONSC 1899, para 82.

[32] The Supreme Court in R. v. D.D., 2000 SCC 43, para 65 stated:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[33] In addition, the court cannot engage in stereotypes or myths about how victims of sexual assault will react. In R. v. D.R., 2022 NLCA 2, aff’d 2022 SCC 50, paras 39-40:

[39] I agree that the Judge’s reasoning was based on a stereotype. The stereotype is that a victim cannot be happy to see her abuser if she is being abused by him. The stereotype is based on the assumption that a victim is unable to have any kind of “normal” relationship with her abuser respecting other interactions and activities unrelated to the abuse because the sexual abuse pervades all aspects of the relationship in a negative way, leaving no room for any positive, tolerant, or other feelings a victim may have about her abuser. The assumption fails to recognize the circumstances of the relationship between the particular victim and abuser. It also fails to recognize that a victim may take time to appreciate that what is happening is abuse (Benedet, at para. 28 above) or that a victim may deliberately act normally around the abuser, due to embarrassment, guilt, or denial (D.D., at para. 65), so as not to alert others to the abuse. Moreover, the stereotype has not been shown to have any foundation in evidence or principle.

[40] Reliance on this stereotype when assessing the credibility of a complainant is particularly concerning when the sexual abuse is alleged to have taken place within a family or other close relationship that typically involves love and trust, and even more concerning when the complainant is a young child. Victims of sexual assault in these situations often attempt to normalize the sexual activity so as to be able to continue to cope within the family or other close relationship. Victims young and old may experience confusion and conflict between their feelings of discomfort with the abuse and dislike of their abusers, and their feelings of love and trust for their abusers. The stereotype is particularly invidious when the victim is a young child, who may not appreciate that the sexual activity is abuse.

Analysis

Introduction

[35] Certain facts are not in dispute.

[36] S.M. admits that he sexually assaulted his daughters on more than one occasion when they were under the age of 12. He admitted that he would remove his daughters’ clothing from the waist down and rub his naked, erect penis on their vaginal area. After some of the sexual assaults, S.M. apologized to his daughters for his actions. He says they occurred at his parents’ home and there was one incident in their home in Peterborough and Rexdale homes.

[37] What is in dispute is the timing, nature, extent and location of the sexual assaults.

[38] I will discuss each of the complainant’s evidence and make my findings regarding the reliability and credibility of their testimony.

[39] When discussing the allegations, I will consider S.M.’s submissions which include the following arguments:

1. He would not have committed sexual assaults in the locations alleged for various reasons, including there were other people in proximity;
2. The complainants and their mother had discussed these sexual assaults and consequently the complainants have made up some of the incidents;
3. The timing and location of the events are incorrect;
4. The incidents could not have happened at the ages alleged;
5. The complainants would have called out for their mother during the sexual abuse if she was in the proximity when the sexual abuse was occurring;
6. Why did the complainants not try to avoid him or go to their mother; and
7. There were other inconsistencies that detract from the complainants’ credibility and reliability, for example, in one alleged sexual assault as set out below, it is not plausible that he would take a cab (as he had a vehicle available to drive) with two of the children to play videogames at a bar.

[40] The court will only deal with the evidence. In his submissions, S.M. did aptly raise some inconsistencies, but he also raised subjects which were not in the evidence. As it was explained to S.M. on many occasions, I can only decide this matter based on the evidence I have heard.

[41] Generally, I find that both complainants were credible. Their accounts of the sexual assaults were compelling and internally consistent. Their evidence did not change significantly under vigorous cross-examination. Their evidence in relating the incidents of sexual assaults was consistent in key elements of the sexual assaults. Although there was some evidence that they believed that S.M. had penetrated their vaginas with his penis, they admitted that they were not sure and admitted that given their young age at the time of the sexual assaults, they could be mistaken. The Crown has conceded that penile penetration has not been proved beyond a reasonable doubt.

[42] The complainants did not demonstrate a strong animus against S.M. M.G. stated it was not her intention that the sexual assaults would be disclosed, and she was prepared to move on with her life. V.M. did not show a desire to punish her father and exaggerate the details of the sexual assaults.

[43] Regarding the reliability of their evidence, as will be elaborated below, there were inconsistencies in some minor or peripheral details. As set out by S.M. there are issues of timing, the order of the assaults and what home the family was residing at the time of some of the assaults. These inconsistences marginally undermine the reliability of the complainants’ evidence, but in my view, do not detract from the overall reliability of their evidence of what occurred to them when they were young girls. Their evidence of the core details of what occurred to them did not waver.

[44] In addition, both complainants would admit if they did not remember a specific detail but relate the core details of the sexual assaults.

[The remainder of the decision continues with detailed findings and analysis, as in the original text, including the evidence of V.M., M.G., and other witnesses, the court's assessment of credibility and reliability, and the ultimate findings on the aggravating facts.]

End of Decision

Date: July 3, 2025
Justice A. Doyle

Appendix

[1] The PFV home was a separate furnished unit, with a front yard, deck and barbecue. Inside of it was a kitchen, dining room, living room, bathroom and two bedrooms. The PFV residence allowed prisoners to spend time with their families on a weekend.