Court File and Parties

Court File No.: CR 24-011 (Owen Sound) Date: 2025-08-07 Ontario Superior Court of Justice

Between: His Majesty the King -and- C.S.

Counsel: J. Rice, for the Crown J. Gamble, for C.S.

Heard: May 27, 28, 29, 2025

Reasons for Judgment

Publication Restriction Notice: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner.

Justice R. Chown

Introduction

[1] The accused C.S. is charged on an eight-count indictment with offences relating to his daughter, K.S. The charges are:

Count	Date of Alleged Offence	Section	Alleged Offence
1	Between 2018-09-01 and 2020-03-08	s. 266	Assault. This charge relates to the complainant's description of repeated abuse by the accused.
2	Between 2018-09-01 and 2021-10-14	s. 264.1	Utter threats to cause death. The complainant alleges that the accused threatened her, including saying he would kill her if she disclosed what he did.
3	Between 2019-07-01 and 2020-03-08	s. 173(2)	Expose genitals. The complainant alleges that the accused masturbated when he was beside the complainant in her bed. The Crown has invited me to acquit on this count as there was no evidence that the accused's genitals were exposed.
4	Between 2019-08-01 and 2021-10-14	CDSA s. 5(1)	Traffic cocaine. The complainant alleges that her father purchased cocaine for himself and that he supplied cocaine to her.
5	On or about 2019‑12‑01	s. 266	Assault. The Crown withdrew this count.
6	On or about 2020‑01‑04	s. 151	Touch young person for a sexual purpose. This count and the next count arise from the complainant's allegation that the accused touched her vagina and breasts over her sleeping clothes, and he pressed his penis against her back while they were in his bed.
7	On or about 2020‑01‑04	s. 271	Sexual assault.
8	On or about 2020‑03‑08	s. 266	Assault. The complainant alleges that the accused grabbed her by the arms and dragged her around; pushed her onto the couch and restrained her by her neck, pushing her face into the couch; and followed her into her room and while she was standing beside her bed, he flipped the mattress off of it, all while screaming and shouting at her.

[2] To be clear, the Crown withdrew count 5 and invited me to acquit on count 3. I agree that an acquittal on count 3 is appropriate.

The Burden and the Standard of Proof

[3] The burden of proof rests with the Crown. There is no burden on the accused to prove anything. The Crown must prove each element of each of the offences charged and the standard of proof is proof beyond a reasonable doubt. The accused is presumed to be innocent of each of the charges unless and until the Crown meets this burden.

[4] Proof beyond a reasonable doubt does not mean proof to an absolute certainty, but it is also more than proof of likely or probable guilt. It lies closer to absolute certainty than it does to the civil standard of proof on a balance of probabilities. Unless the court is sure that the accused is guilty, he must be acquitted.

[5] In a case, as here, where there are very different versions of events put forward by the complainant and the accused, the court must avoid the temptation to simply compare them and then choose one of them as being closer to the truth. That would run contrary to the fundamental rule that the Crown must prove the accused's guilt beyond a reasonable doubt.

Background / Timeline

[6] This was a two-witness trial, with the Crown calling only the complainant, K.S., and the accused testifying on his own behalf. The Crown tendered K.S.'s two police statements under s. 715.1 of the Criminal Code, and she adopted them during her trial testimony.

[7] K.S. is the daughter of the accused. She was born in April 2007. According to the date ranges on the indictment, she was between ages 11 and 14 at the time of the alleged offences. She was age 14 when she gave her first police statement on December 30, 2021. As this case got close to trial in 2023, K.S. provided information to the Crown or to police about the accused giving her drugs and engaging in other drug trafficking. As a result of this, police conducted another video-recorded interview of K.S. She was 16 when she gave her second police statement on November 29, 2023. She was 18 when she testified at trial.

[8] K.S.'s mother, the accused's wife, died when K.S. was five. That would have been in 2012 or early 2013. After that, K.S. lived with the accused. K.S.'s maternal grandparents and her paternal grandmother were mentioned several times during the evidence, and I inferred that they each had important relationships with K.S. For a period of several months, K.S. and the accused actually lived with K.S.'s maternal grandparents. The accused testified that K.S.'s maternal grandparents moved to the area to help with K.S. and another grandchild of theirs. He said they were a "big time help" to him, and he "would not have been able to do it" on his own.

2018

[9] The accused testified that he had a relationship with a woman named Jackie McCartney, and K.S. had a close relationship with her. The accused testified that that relationship ended in about August 2018. K.S. also said this relationship ended in August 2018. She described an argument with Ms. McCartney and said that Ms. McCartney hit her on the face. She said she was age 10 at the time. K.S. would have been 11 at the time that the accused's relationship with Ms. McCartney ended in August 2018.

[10] K.S. described that after that relationship ended, she and the accused moved from Allenford to her maternal grandparents' property where they lived in a camper trailer for a few months. The accused also testified to this effect. K.S. also said, in unchallenged evidence, that they lived in a log cabin near Tara for a winter before moving to Concession 3 in Owen Sound (this would in fact be in Georgian Bluffs, as is correctly stated in the indictment).

2019

Relationship with Cassandra Jackson

[11] The accused testified that he also had a brief relationship with a woman named Cassandra Jackson. He said this relationship ended after about three weeks. He was uncertain and not fully consistent in his evidence as to the timing of this relationship, but it was the winter. Most likely it was in the early months of 2019. K.S. would have been 11.

Move to Concession 3

[12] K.S. said in her first police statement that on July 1, 2019, she and the accused moved to Concession 3, and she confirmed this at trial. They remained there until she left after the charges against the accused arose. The accused testified that he and K.S. moved to the Concession 3 address on July 1, 2018. He said, incorrectly, that K.S. was 12 at that time. In July 2018, she would in fact have been 11. I find that K.S. is correct about the date of this move being July 2019 and not July 2018.

Inaccuracy with Dates

[13] K.S. was a better historian than the accused in terms of dates. In fairness to the accused, had his evidence regarding the timing of events been documented earlier, he may have remembered dates better. I note, for example, that in her second police statement in 2023, K.S. could not remember how long the accused was living at the Concession 3 address, that is, whether he started living there in 2019 or 2018. At trial, K.S. said she believed the date they moved to Concession 3 was in the summer of 2019. Thus, K.S.'s memory of this date was less reliable at the time of her second police interview. I point this out simply to show that I recognize it is hard for people to remember dates. The failure to remember dates does not seriously impact the credibility of either K.S. or the accused, although it does impact the reliability of their evidence.

Cocaine Use

[14] K.S. said in her second police interview that the first time she remembers ever doing cocaine was in the summer of 2019. She and the accused went to the pier in Owen Sound and the accused got some cocaine from a guy in a white Dodge Challenger or Dodge Charger. The accused was in the white car for about five minutes and the driver "zoomed off" right as the accused got out. The accused then drove to Kelso Beach in Owen Sound, and he broke up the cocaine with his debit card and K.S. sniffed two lines off the owner's manual from the glove box of the car.

2020

Sexual Touching/Sexual Assault

[15] K.S. said that the sexual touching / sexual assault described in counts 6 and 7 occurred on January 4, 2020. She was not able to say why that day stood out for her, although it was her great grandmother's birthday.

Assault

[16] K.S. also said that that the assault described in count 8 of the indictment occurred on March 8, 2020. K.S. was not quite 13 at that point.

2021

[17] K.S. testified that there was a period of about several months when a person named Matthew Savoie (spelling of surname is uncertain) lived with them, from about February or March to about July or August of 2021.

[18] K.S. started high school in September 2021 at age 14. The accused testified that K.S. changed when she started attending high school. In the fall of 2021, K.S. was suspended for taking marijuana to school.

[19] K.S. said in her second police statement that the last day she used cocaine with the accused was on October 14, 2021.

[20] There was no evidence from K.S. of a blow-up or argument or precipitating event that caused her departure from the residence. She gave the date she left the accused as December 8, 2021.

[21] The accused said that on December 13, 2019, K.S. had been in trouble at school. She wanted to go to her friends, and the accused would not allow this. The date he gave of December 2019 was obviously incorrect. He said that at the time, K.S. called "the hotline" to report him for abuse and then went to her maternal grandparents. She never returned to his care. Later in his evidence the accused said she called "the Hotmail," but I infer he was describing the same thing. I understood him to be saying that K.S. had called a hotline for some service that provided crisis help. This was the precipitating event that led to K.S. leaving the house, according to the accused. The accused's position is that K.S. was angry that he would not allow her to stay with her friend.

The Evidence Surrounding Each Remaining Count

Counts 6 (Sexual Touching) and Count 7 (Sexual Assault)

[22] In her first police statement, K.S. said that at the accused's insistence, she slept in his bed on and off for four years. She described that on January 4, 2020, she woke up in the middle of the night to the accused touching her sexually on her vagina and breasts with his hands. She also felt that he was poking her in the back with his penis. She was laying on her side, facing away from him.

[23] In her trial testimony, in direct examination, K.S. clarified that she was wearing pajamas and the touching involved grabbing and groping and occurred over the clothing and lasted for five minutes.

[24] In her first police statement, K.S. said that, at first, she froze and did not know what to do. After five or ten minutes, she jumped up and ran to the bathroom, and locked herself in there. She said the accused did not do anything and she just stayed in the bathroom for hours. She then went to her room to sleep. The next day, neither of them spoke about it. In fact, he's never said anything about it. K.S. testified that she did tell one friend about it about a month or a couple months after it happened. She also said that after that night, she stopped sleeping in the accused's bed.

[25] K.S. separately said (in her first police statement) that she told her best friend at the time, named Isabel, about the January 4, 2020 incident. She told her a month or a couple of months later.

[26] In his testimony, the accused acknowledged "co-sleeping" with K.S. several times including a for a period after he broke up with Ms. McCartney. He said this was initiated by K.S. because she was upset. Some nights she couldn't sleep, and she needed to be comforted. In cross-examination, he said that it would have been in the fall and K.S. would have been 10½. He said this would have been for a period of about three weeks. I note that this would have been in 2018, so well before the January 4, 2020 date referred to by K.S., when she would have been age 12.

[27] The accused also said that co-sleeping occurred for period of about one month after he had been threatened by Ms. Jackson. Although this evidence was not developed to any degree, as I understand it, Ms. Jackson hit the accused with her car. The accused said he slept with a baseball bat nearby because he was worried about Ms. Jackson. He said K.S. was aware of the threat, and was afraid, and wanted to sleep in his bed. He said this would have been a year after the break-up with Ms. McCartney, and then he said this would have been in 2020 – but corrected this to 2019. In cross-examination, it was suggested to the accused that he reported the incident with Ms. Jackson to the police in February 2019. He said that this could be correct.

[28] The accused said that during any co-sleeping with K.S., they both always had sleeping clothes on. He said he would hug K.S. if she came into her bed in the middle of night but that there was no physical contact "while laying there." He denied ever touching her vagina or breast.

[29] K.S.'s evidence in regard to this incident was compelling. Her evidence was not shaken on cross-examination. The accused's evidence on this point was far less compelling, but he also was not significantly shaken on cross-examination.

Count 8 (Assault)

[30] The next incident K.S. described in her first police interview gives rise to the assault charge in count 8 of the indictment. The incident K.S. described occurred on Sunday, March 8, 2020. She got home and the accused was "in a mood" and was intoxicated. She had a science project due the next day, and it was almost done, but not completely done. The accused got really angry with her, and she got angry back. She said he grabbed her by the arms and dragged her around. He pushed her onto the couch and restrained her by her neck. He did not try to strangle her, but he tried to push her face into the side of the couch. She got away and ran up the stairs. He followed her into her room. While she was standing beside her bed, he flipped the mattress off of it and started screaming again. It settled down when K.S. ran down the stairs and outside with her phone, and she called her grandmother. This was her paternal grandmother. Her grandmother came and tried to settle the accused down, and he got mad at her too. Later, K.S. went to bed.

[31] K.S. testified that she had a bruise on her neck and bruises and scratch marks on her arms after that. She told her grandparents about this (her maternal grandparents) about a week after this incident. She said her maternal grandfather took photos of her bruises. Those photos became exhibit 3 at trial. At trial, K.S. said the photos were taken a few days or almost a week after the incident occurred, and the bruises were starting to fade.

[32] In his trial testimony, the accused acknowledged this incident but said that K.S. "came at me" and was kicking, biting, and screaming, and he had to hold her back. He said that this was "the only physical thing we had," "just that one time."

[33] Again, K.S.'s evidence regarding this incident was more compelling than the accused's, with a lot of detail. Again, neither K.S. nor the accused were significantly shaken on cross-examination.

Count 1 (Other Incidents of Assault) and Count 2 (Utter Threats)

[34] In her first police interview, K.S. also described other abuse by the accused. She described that in one earlier argument, he picked up the couch and flipped it while she was on it. This was shortly after Christmas of 2019.

[35] K.S. also described in her first police statement (in December 2021) that she pretty much had to look after herself for the previous five years, because the accused was not capable of doing so. He would not regularly buy groceries and was irresponsible in paying his bills. He did not clean the house. He left her alone at home all day, not coming home until late at night, and not making food.

[36] K.S. also described that the accused subjected her to verbal abuse including serious "put downs," telling her she was not going to achieve things or that she is going to fail in life, and swearing at her.

[37] K.S. said the accused would watch porn movies with her. She described that the accused would watch the show Shameless, a show with many sex scenes, which she described as "stuff like a 12-year-old shouldn't see." During her police interview, the officer tried to clarify whether the accused showed her pornography or a movie or show with a sexual scene in it. K.S. said it was both, although this was not fully clarified. I did not receive any other evidence about the nature of the show "Shameless."

[38] K.S. described that one time the accused drove her to the Owen Sound hospital and told her to get out. He told her on the drive there that he was taking her to the orphanage and was going to put her up for adoption because he did not want her anymore. He said he did not want to deal with her anymore and told her to go to the third floor, which she said was an orphanage. He told her that someone would abuse her in an adoption home, and she would have it a lot worse than she had it with him. He told her to go to the third floor and called her crazy. He said that she needed to get mental help and the third floor is the place for her.

[39] K.S. also testified that the accused told her that if she told anybody about the things that he did, he would hurt her nanny and Papa, not let her see them, and hurt her. He would tell them things she did not want them to know. K.S. also testified that the accused let her drink alcohol when she was 11 years old. She described an incident of intoxicated driving by the accused while she was a passenger.

[40] During the first police statement, the officer tried to clarify what exactly the accused said in terms of threats. K.S. said that the accused said to her, "You are not going to ever see anyone again if you tell them. Or I will kill you if you tell anyone about any of this." She said that she might have been 10 or 11 when he started abusing her a lot, and in this continued until October 2021.

[41] I should point out here that the accused is not on trial for being a bad parent or for exhibiting poor parenting skills, a lack of kindness, or for generally treating K.S. cruelly.

Count 4 (Trafficking Cocaine)

[42] Regarding count 4 of the indictment, trafficking cocaine, K.S. testified that the accused bought and sold cocaine and brought her along when he would meet up with people for this purpose. She said he would ask him to cut the cocaine for him and put it in bags so he could sell it. She saw him do cocaine in the car. She said he had a secret compartment in his car, and he kept everything in there including a scale. She would ask him to weigh it and help him chop it up. She said the car had a leather owner's manual in the glove box and he would use that owner's manual to cut the cocaine into lines and he would snort it with her. He used a debit card and cut the cocaine into lines to do it. And then he would drive, right after snorting lines of cocaine.

[43] K.S. said the accused would take her to his drug deals, and she would sit in the car. She just thought this is what normal dads do. She testified that the accused would get drugs for her and him, and whenever she wanted it just to tell him. She said she became addicted to cocaine. She knew it was cocaine because he told her it was cocaine. He told her a couple of times that he got special batches that had things cut into them, like other drugs. He told her that one time he got speed cut into it and Xanax. She described cocaine as a white powder. She said it was in a rock kind of form when he first got it, and he would take his credit card and crush it on the owner's manual. And that would turn it into a fine powder. She said the rock was white but kind of clear-ish. She described that the first time she remembers using cocaine was in the summer of 2019. She and the accused went to the pier in Owen Sound and met up with a guy in a white Dodge Challenger or Charger. The accused got into the back of the white car for about 5 minutes and then came back with what he got. It was in tinfoil with a plastic bag. He took it out and showed it to her and said they could not do it here because it was too public. He then did donuts in the vehicle and drove to Kelso Beach. They parked there. He brought out the cocaine and asked her if she wanted to do it. She asked if this was hard drugs and he said that it was, and he would rather she do it with him before she started doing it with anybody else. She said he broke up the cocaine with his debit card, put it into lines, and she sniffed two lines. She used a $5 Canadian bill. She said this occurred right before Summerfest in 2019.

[44] K.S. testified that the accused got her smoking weed as well. She said she was in about grade 6 or 7 and was about age 11 when she started. She said she would smoke it every night because he smoked some every night, although he would smoke more.

[45] K.S. provided a great deal of detail about the accused's drug purchases and use. She identified locations where he would attend to make purchases (the pier, the Foodland parking lot). She identified the names or nicknames of some the dealers (Smoky, Wendy). She said that, for a while, in 2019 and 2020, the accused sold cocaine. He quit selling it after COVID because "he started taking money from the government … so he didn't need to sell drugs anymore."

[46] K.S. described the packaging (tin foil and clear plastic bags). She described that they would sometimes do cocaine on the table in the living room of the house. She told police she could provide a photo showing the room with the table, although no such photo came into evidence.

[47] K.S. said she was addicted to cocaine. She said:

there was times like I would do it all night with him, and I'd have school the next day. And I would go to school still high. And like or not high, but like not, no sleep. Just like coming off of the drugs.

[48] She said:

there was a time that he took me to one of his friend's house that he knew that he got drugs from. And he did it little bit, um, like in the car on, um, like on the driveway, like or in the driveway of the friend's house. Then he pulled out, drove home. And we sat in the car, like we would do this regularly. Sit in the car for like an hour or two, just playing music and talking, and doing cocaine. And then, I would go inside, go upstairs, kinda do my thing. He would be in and out of the house. And then, um, like whenever I kinda felt like it, I'd go downstairs and ask him for more. Or he would like text me, or call, call me downstairs. And ask me if I wanted more. And then that would go on until like s-, until we ran out.

[49] No text messages were made evidence in this case.

[50] K.S. told police in her second statement that she lost weight due to her cocaine use. She described visits from BGCFS that I will review in more detail below. She said that the accused would make her lie to BGCFS and give her a rehearsal, and he would clean up the house to prepare for these visits. She said he threatened her if she disclosed anything to BGCFS.

[51] As indicated above, K.S. told police that the last day she used cocaine with the accused was on October 14, 2021. She knew this because she had an app on her phone to help her get sober and off of cocaine, and it showed that that date at 9:02 a.m. was the last time she did it. She told police she would provide a screenshot from this app, but that did not come into evidence.

[52] The accused denied having an alcohol problem or excessively drinking around K.S. He said the only time K.S. has witnessed him when he had consumed too much alcohol was when his mother was looking after K.S., and he would call his mother to pick him up from somewhere, but he emphasized that K.S. would remain in the care of his mother at these times.

[53] In terms of drugs other than alcohol, the accused said the only thing he consumes is marijuana and he does this only occasionally. When asked if he had marijuana in his home during the time he lived with K.S., he said "only the one time." He described that on one occasion he got marijuana from K.S.'s maternal grandfather. He said it was for his father (the accused's father) because his father smokes a fair bit of it. The accused said he hid the marijuana under the couch. He said K.S. did not see him hide it. He said that the next day she got suspended from school because she took it all to school. He said he had never given her K.S. marijuana. I found this aspect of the accused's evidence unlikely and difficult to believe.

[54] With regard to cocaine, the accused said he had used cocaine when he was younger but never around K.S. or other children. He denied that K.S. ever had occasion to see him consume it. He denied that he ever had cocaine in his home during the time that K.S. lived with him at the Concession 3 address. In cross-examination, he denied taking K.S. to cocaine deals. He acknowledged having a Mitsubishi Lancer but denied that he put cocaine in the secret compartment in it, and he said that the Lancer did not have a secret compartment.

No Witnesses to Cocaine Use

[55] Police asked K.S. if there was ever anybody else present when she would do drugs with her dad. She said that he would do drugs with other people, but she would have to stay up in her room. She said she never did drugs in front of these people because he didn't want those people to tell on him. She said that there was one girl who she smoked marijuana with when her dad was there, and she got sick from this girl's marijuana because it was really strong. K.S. reluctantly provided this girl's name to police, Isabelle Taylor, and she said that this girl was the accused's "kind of girlfriend," and she lived in Hamilton and would come up. She could not say when this was, but said she came up multiple times, and whenever she would come up from Hamilton, K.S. would get to smoke weed with her and the accused. K.S. told the officer (in her second police statement) that she did not want police to contact this person because she was not on good terms with her anymore, and she did not want to burden her.

[56] Isabelle Taylor must not have been the same "Isabel" that K.S. referred to as her best friend at the time of her first police statement. (That is, the Isabel I have already referred to, who was K.S.'s best friend at the time of the alleged sexual assault in January of 2020.)

[57] During his examination in chief, the accused said that K.S. was skipping school a lot and she had a friend, Isabel Taylor, that she got into trouble with. This evidence was not developed beyond this. I did not otherwise hear the last name of the Isabel who was K.S.'s best friend. I do not know if the two Isabels both had the surname Taylor or whether the accused mis-stated or conflated the surnames.

[58] K.S. was not asked if she disclosed her cocaine use to any of her friends.

[59] K.S. said she would also smoke weed and drink alcohol with Mr. Savoie and the accused when Mr. Savoie lived with them, but she said Mr. Savoie never witnessed any of the cocaine because the accused would hide it from him.

BGCFS Was Involved

[60] I received little evidence regarding the involvement of Bruce Grey Child and Family Services. K.S. said in her second police interview that they came six times. She said there were at least five different workers who came. She said that the last interaction with BGCFS was probably the year that she left him (2021) and, "They were always around because he was always getting like himself in trouble and getting them called."

[61] The accused testified that BGCFS did visit "three times a year," but it was unclear for how long this went on or when. He said that Ms. Jackson reported him to BGCFS three times. As he was involved with Ms. Jackson in early 2019, I infer that there was BGCFS involvement after that date. Clearly there would have been overlap with the time that, under her evidence, K.S. was using cocaine (starting the summer of 2019).

[62] Ms. Gamble submits that it is not credible that a child between the ages of 12 and 14 could use as much cocaine as K.S. claims she used and that she would have been able to hide this from the other adults in her life including BGCFS, grandparents, teachers, and school officials.

Complainant's Police Statements Were Compelling

[63] K.S.'s police recorded interviews were compelling, especially her first recorded interview. She seemed to be open and frank with the interviewing officer, and I saw no hint that she might have been intentionally providing inaccurate information.

[64] In her second recorded interview, K.S. disclosed several matters she had not described in her first interview. She said in her second interview that there were things she forgot or was too scared to say.

K.S. Denied Any Other Sexual Misconduct

[65] During her first police interview, K.S. had described the January 4, 2020 incident and the officer then asked her if anything like this ever happened to her again with the accused, and she said, "No." She was then asked, "Anything sexual at all?", and she said, "No."

K.S. Failed to Disclose Significant Drug Use

[66] In her first interview, K.S. also told the officer the accused consumed alcohol every day and she described him as a "heavy alcoholic." She said, "I'd say probably he starts drinking right when he wakes up and doesn't stop until he goes to bed." She said "he sits on the couch and drinks every morning." She also said he was a heavy smoker. When the officer then asked whether he smoked just cigarettes, K.S. said yes. When asked if she was aware if he did "drugs or anything like that," K.S. said, "he's done cocaine before in front of me." She said she had seen him snort it and she said he did it frequently for a while, but she was "not sure if he's still doing it." She told the officer in the first interview that the last time she saw the accused using drugs like that was about a month prior to the interview.

[67] In cross-examination, Ms. Gamble noted that K.S. confirmed to the officer that the accused smoked "just cigarettes." K.S. responded that she had mentioned earlier in the interview that he smoked marijuana; however, that is not correct. Although she was not confronted with this during her cross-examination, on review, K.S. did not mention the accused's marijuana use in the first interview.

K.S. Explained Why She Did Not Initially Disclose These Matters

[68] As I have already described, K.S. gave her second recorded interview in November of 2023. In it, she disclosed the details of cocaine use that I have already described. Before her second interview, the officer had K.S. watch her first interview, and he asked her if everything she said was accurate. She said it was, but there was more to add to it, and she "did not tell the full extended story to the truth." K.S. described making notes about a year and a half prior to the second interview, and she described speaking to her counsellor the week before the second interview, and her counsellor helped her realize that some of the things that had happened "were actually a lot worse than I thought."

[69] Ms. Gamble suggested to K.S. during cross-examination, and submitted during argument, that it made no sense that K.S. would be afraid to disclose the accused's cocaine use but not to disclose that he had sexually assaulted her.

[70] During cross-examination, Ms. Gamble also pointed out to K.S. that during her first police interview, she did not mention anything about the accused masturbating in front of her or showing her pornographic or X-rated movies. Again, she had been asked if, "Anything sexual at all" occurred, and she said no. However, in the second police interview she described watching pornography and she described the accused masturbating in her bed beside her. K.S. testified at trial that she did not disclose this in the first police interview because she was afraid of the accused. Ms. Gamble suggested it made no sense K.S. was afraid to mention this conduct but was not afraid to say that the accused had touched her breasts and her vagina and that he had poked her with his penis.

[71] In my view, it is understandable that, in her first interview, K.S. did not mention the important points she later disclosed. Our law accepts 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": R. v. D.D., 2000 SCC 43, at para. 65.

[72] At trial, K.S. said she was concerned about the threats the accused had made against her. She was not asked if she was also concerned about how the police would respond if she were to admit her own cocaine and drug use. Regardless, I find it understandable that K.S. left out important points in her first police statement. She was 14. It is not hard to accept that she was afraid to be fully candid because she did not know if she would get herself in trouble. It is also easy to accept that through counselling and increased maturity, K.S. better understood the seriousness of the circumstances and the gravity of the conduct she attributes to the accused. K.S.'s late disclosure is not a good reason to disbelieve her evidence. Indeed, the late disclosure is something one might fully expect in the circumstances. With that said, this cannot be turned around to suggest that the late disclosure enhances K.S.'s credibility.

[73] Also, I do not accept K.S.'s explanation that she forgot about some of these points. As indicated, she came across as open and candid during her first interview, but it is now apparent that she was not open, and she was less than fully candid. I have had cases where very young witnesses are incapable of guile, and K.S. does not fit into that category of witness.

Cross-Count Evidence

[74] I have reminded myself that each allegation is a separate charge. I am required to make a separate decision and give a separate verdict for each charge. I must make my decision on each charge only on the basis of the evidence that relates to that charge. I may not use evidence that relates only to one charge in making my decision on any other charge.

Elements of the Offences (Other Than Trafficking)

[75] To focus myself on the matters that are in issue, I will review the essential elements of each of the remaining offences on the indictment. I will deal separately with the elements of trafficking.

[76] The elements of sexual interference are:

1. that the complainant was under sixteen years old at the time;
2. that the accused intentionally touched the complainant; and
3. that the intentional touching was for a sexual purpose.

[77] The elements of sexual assault are:

1. the accused intentionally applied force to the complainant;
2. the complainant did not consent to the application of force (this element is not applicable if the complainant is under 16 years old);
3. the accused knew that the complainant did not consent; and
4. the force was applied in circumstances of a sexual nature.

[78] The elements of assault are:

1. that the accused intentionally applied force to the complainant;
2. that the complainant did not consent to the force that the accused applied; and
3. that the accused knew that the complainant did not consent to the force that the accused applied.

[79] The elements of uttering a threat to cause death are:

1. that the accused made a threat;
2. that the threat was to cause death to the complainant; and
3. that the accused made the threat knowingly.

Elements of Trafficking

[80] The Crown acknowledges that its case for trafficking relies solely on the evidence of K.S. There was no seizure of any drugs. There is no Certificate of Analyst from Health Canada proving the nature of the substance. In this case, the Crown relies on the level of detail that K.S. provided argues that her evidence should be accepted.

[81] The elements of the offence of trafficking include:

1. that the accused trafficked in a substance;
2. that the substance was cocaine;
3. that the accused knew that the substance was cocaine; and
4. that the accused intentionally trafficked in cocaine.

[82] The word "traffic" is defined broadly. The accused does not have to sell the cocaine to another person to be convicted of trafficking if the accused has given it to another person. Giving another person cocaine is enough to support the first element of the offence.

[83] Although there is some competing jurisprudence, in general the jurisprudence suggests that it is not an absolute necessity for the Crown to prove the nature of the involved substance with a Certificate of Analyst, although this is the norm and is by far the preferred method of proof. It is, however, open to the Crown to prove through circumstantial evidence that the involved substance was cocaine. See R. v. Shepherd, 2014 BCSC 2313 for a thorough discussion of this issue. The usual test for a largely circumstantial case applies. The totality of the evidence offered must be so cogent that the only rational inference to be drawn is that the substance was in fact cocaine.

[84] In this case, the most potent evidence that the substances K.S. was given were cocaine is K.S. evidence regarding the statements made by the accused to her that they were cocaine and the discussions the two of them had surrounding purchasing and using it, as well as K.S.'s description of the way the drug made her feel. She described that she would be "wired" for a day or two and then she would "just like crash and be super sad." She described being hyper and unable to sleep. She remembers blacking out or just falling asleep, and one time she woke up on the floor of her room. She said that sometimes she would snort the cocaine but also might put it under the gums or under her tongue, and it would numb her gums and make her gums feel good. In addition, K.S.'s description of the way the drug appeared, the way it was packaged and used, and the surreptitious way it was obtained all support the Crown's position.

[85] As a result, the Crown has provided some evidence to support each element of the offence. It comes down to whether I accept that the Crown's evidence satisfied the burden of proof to the required standard after application of W.D.

W(D) Analysis

[86] I want to explain in simple language a legal rule that I must apply in this case.

[87] In every criminal case, the Crown must prove its case beyond a reasonable doubt.

[88] In a civil case – so for example in a case where one person is suing another person for money – the judge or jury can often decide the case based on which person they believe more.

[89] A symbol that is often used to represent the concept of justice is a scale. The idea is that the judge is supposed to stack the evidence on each side of the scale. In a civil case, the judge just looks at which way the scale tips. As soon as it tips ever so slightly in one side's favour, that is how the judge can decide the case.

[90] But in a criminal case, stronger proof is required. The scale has to be weighed down very heavily by the Crown's evidence, and only then can the person be convicted. The reason for this is that it is a tragedy when an innocent person is mistakenly convicted and put in jail. Criminal cases are usually about tragic situations, and it will only make a tragic situation worse if an innocent person is put in jail. For this reason, the law requires a high degree of proof in a criminal case. This means that sometimes a guilty person will escape punishment, but that is justified because we consider it is worse when the justice system puts an innocent person in jail.

[91] Because of this, there is a legal rule in criminal cases that comes into play whenever the accused person testifies and says the opposite of the Crown's witnesses. The rule is that the judge cannot just decide the case based on a comparison of which person they most believe. It is wrong to merely choose between the accused's evidence and the Crown's evidence. The focus must remain on whether the Crown has proven its case beyond a reasonable doubt. The real issue is not who is telling the truth, but instead, whether, on the entirety of the evidence, the Crown has proven the case beyond a reasonable doubt.

[92] Sometimes people think that an accused person should not be believed because they have a strong motive to lie – the motive of not being convicted and having to go to jail. But an innocent person would be in the same position, so we cannot discount an accused person's evidence solely on this basis.

[93] Sometimes people think that the Crown's witnesses have no reason to lie, so unless the accused can show that the person has a reason to lie, the Crown's witnesses should be believed. But that is not legally correct because an innocent person might not know why a Crown witness is lying, and they might not be able to prove that the person is lying. This would also reverse the burden of proof by making the accused person prove they are innocent. That is not the way the system is supposed to work because, for one reason, the Crown and the police have a lot of resources to prove their case whereas the accused person may have no resources.

[94] These rules mean that it can be hard for the Crown to obtain a conviction in cases like this one where the court is required to evaluate the evidence of only two witnesses.

[95] I am now going to use some of the more technical legal language the Supreme Court of Canada has said I must apply. In a case called R. v. W(D.), [1991] 1 S.C.R. 742, the Supreme Court said that I must apply the following test:

1. If I believe the evidence of the accused, I must acquit him.
2. If I do not believe the testimony of the accused but I am left in reasonable doubt by his testimony, I must acquit him.
3. Even if I am not left in reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[96] It has been said that where the case against an accused rests almost entirely on the evidence of the complainant, and where the accused testifies and his testimony is not undermined, the Crown has a steep hill to climb: R. v. D.M., 2018 ONSC 476, at para. 31. At the same time, an accused "is not entitled to an acquittal simply because his evidence does not raise any obvious problems": R. v. G.C., 2021 ONCA 441, at para. 15. Per Paciocco J.A., in R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 30:

[A] proper conviction can be arrived at even where exculpatory testimony has no obvious flaws if the Crown mounts a strong prosecution: R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 40. In such a case a trier of fact may appropriately find that the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt.

[97] In this case, I believed K.S. when I watched her video statements and when she testified. I did not think K.S. was lying. There was very little that K.S. said that I did not accept. As I have already said, I can understand why K.S. did not disclose the drug use in her first police statement.

[98] I cannot think of any reason why K.S. would lie about the basics of what she said, but as I have stated, that is not the right way to think about the case. I have to be careful not to place an expectation on the accused to prove that K.S. is lying.

[99] When I heard the accused testify, I had trouble believing some of the things he said, although for the most part I cannot point to evidence that he was lying, other than the evidence that comes from K.S.'s testimony. There was nothing in the accused's evidence that particularly lacked credibility. Mr. Rice submitted that the accused was wholly unreliable but perhaps the major concern Mr. Rice raised was the accused's lack of reliability regarding the dates of events. To be sure, the accused was not accurate with dates and generally was not an articulate or careful witness. I agree that the accused's inability to recall dates makes his evidence unreliable in this regard, but I have already described why I do not think his problems recalling dates significantly undermines his credibility.

[100] Mr. Rice's primary theme was that I can and should reject the accused's evidence based on a reasoned acceptance of K.S.'s evidence because K.S. provided a level of detail in her evidence that could not have been made up by her. I find this to be an appealing argument, but not quite sufficient in the circumstances.

[101] In response to the defence argument that a 12- to 14-year-old would not be able to hide regular cocaine use from teachers, BGCFS workers, and grandparents, Mr. Rice submitted that this was speculation and that there was no expert evidence as to the effect of cocaine and the extent to which its use could be hidden. He submitted that there would be no point in calling witnesses who might only have been able to say whether they observed effects that may have been consistent with cocaine use. I appreciate that there may have been an objection to such evidence, and I appreciate the effort to keep the trial focused on first-hand evidence. However, the fact remains that there is no corroborating evidence regarding the trafficking, despite K.S.'s young age and the extensive cocaine use she described and the length of time she described using it. Mr. Rice also noted that the police had limited opportunity gather evidence relating to the alleged trafficking because so long had gone by before this allegation was disclosed, and I accept this point.

[102] In the end, I am left with a reasonable doubt about the accused's guilt regarding the trafficking charge in count 4 of the indictment.

[103] Regarding the sexual assault and sexual interference charges, I am similarly left with a reasonable doubt. Again, I believed K.S. when she testified about these counts. But again, I have little reason to reject the accused's denial of these allegations. I am left with a reasonable doubt about the accused's guilt in counts 6 and 7 of the indictment.

[104] Regarding the assault charge in count 8, the accused admits there was an altercation but said he was merely trying to hold K.S. from kicking and biting him. K.S.'s evidence is corroborated by photographs of the bruising she sustained in the area of her triceps, her underarms, and under her chin. The bruising is very light in the photographs but as indicated, K.S. testified that these photos were taken after several days when the bruises were starting to fade. The bruises could be consistent with the defensive actions described by the accused, and I am left with a reasonable doubt as to whether there was an assault.

[105] Regarding counts 1 and 2 on the indictment, being the other incidents of assault and the uttering threat charges, while I again believed K.S.'s evidence, I again have little reason to disbelieve the accused's denial of these allegations. I am left with a reasonable doubt about the accused's guilt on these charges.

[106] In result, there will be a finding of not guilty on all the remaining charges on the indictment.

Released: August 7, 2025