Publication Ban

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

Reasons for Judgment

Sandra Nishikawa

Released: January 23, 2025

Overview

[1] The defendant, Mr. V., is charged with two counts of sexual interference, one count of invitation to sexual touching, one count of making sexually explicit material available to a person under the age of 16 years, and one count of assault.

[2] The complainants, S.A. and K.A., are sisters. At the time of the allegations, their mother, A.P., was in a relationship with Mr. V. The charges arise from incidents that are alleged to have taken place between 2011 and 2014 when S.A. and K.A. were children and when Mr. V. was living with them.

[3] Mr. V. and A.P. met in 2009. Soon after, they moved in together. At the time, S.A. and K.A. were young children. Although Mr. V. and A.P. were not legally married, they had a religious ceremony during a trip to India in 2010. K.A. and S.A. viewed Mr. V. as their stepfather and called him Dad.

[4] After they returned from India, Mr. V. and A.P. were briefly separated. They then moved in together in a one-bedroom apartment at Birchmount and Lawrence. The allegations underlying the offences charged took place while they were living in that apartment. In early 2014, Mr. V. and A.P. split up and Mr. V. moved out of the apartment.

[5] In May 2020, K.A. disclosed that Mr. V. had sexually abused her when she was a child. In her statement to the police, K.A. detailed incidents during which Mr. V. kissed her, touched her breasts and vagina, made her to touch his penis, and showed her pornographic videos.

[6] In November 2021, S.A. went to police to report that on one occasion in 2011 or 2012, Mr. V. had kissed her and touched her vagina.

[7] The defendant, who testified at trial, denies that any of the alleged incidents took place.

Issues

[8] The issues in this case are as follows:

(a) Should the Crown’s similar fact application be granted?

(b) Did the defendant touch S.A. for a sexual purpose?

(c) Did the defendant touch K.A. for a sexual purpose?

(d) Did the defendant invite K.A. to touch him for a sexual purpose?

(e) Did the defendant make sexually explicit material available to K.A.?

(f) Did the defendant assault K.A.?

The Evidence

Summary of K.A.’s Evidence

[9] At the time of the trial, K.A. was 20 years old. She was approximately five years old when her mother, A.P., and Mr. V. started a relationship. K.A. testified that she viewed Mr. V. as a father figure and was very attached to him from the beginning. K.A. testified that Mr. V. started out treating both S.A. and her as “special” but that after a certain point, Mr. V. started “not liking” S.A. K.A. admitted that she liked being more special to him than S.A. was. K.A. testified that Mr. V. started kissing her and she recalled Mr. V. once kissing her on the mouth in A.P.’s presence. K.A. testified that after that it became “private” and “different.”

[10] K.A. testified to four incidents that took place between 2011 and 2014. K.A. admitted that she could not recall which incident occurred when, or in what order they occurred. Although K.A. detailed four specific incidents, she testified that Mr. V. regularly touched her vagina and showed her pornography but she could not recall specific details.

[11] K.A. testified that all of the incidents took place in the apartment building at Birchmount and Lawrence. She recalled that two incidents took place in the one-bedroom apartment they lived in. A third incident took place in Mr. V.’s vehicle in the parking lot of the apartment building. The fourth incident took place on the day that the family was moving from the one-bedroom apartment to a two-bedroom apartment in the same building. K.A. recalled that they lived in another apartment at Islington or Eglinton when she was younger but testified that none of the incidents happened there.

The Bedroom Incident

[12] K.A. testified that the first incident she could recall took place in the bedroom of the one-bedroom apartment. She did not recall how old she was at the time. She and Mr. V were in bed together. K.A. testified that she and Mr. V. would often nap in the bed together. S.A. was home but A.P. was not. K.A. testified that she was sleeping when Mr. V. put his hands down her pants, touching her vagina. She further testified that she had her shirt off. K.A. testified that Mr. V. licked her all over, including her breasts and armpits. K.A. testified that Mr. V. had his shirt off and wore a lungi or skirt-like garment. K.A. testified that Mr. V. also kissed her on the mouth with “a lot of tongue” and that she could taste cigarettes. K.A. testified that Mr. V. asked her how she liked it.

[13] K.A. testified that at some point during this incident, Mr. V. asked her in English, “can I put it in?”, referring to his penis. K.A. testified that she said no because she was worried about getting pregnant. K.A. testified that she understood that penetration could result in pregnancy but did not know that she could not get pregnant because she did not yet have her period. K.A. testified that at the time, she understood that sex led to pregnancy because Mr. V. had shown her pornography. K.A. made reference to “impregnation pornography” but did not specifically recall Mr. V. showing her pornography of that nature. K.A. testified that Mr. V. asking her if he could put his penis in stood out in her mind because, throughout the time when he was abusing her sexually, he never otherwise asked before doing something. K.A. testified that this led her to feel some empathy toward him.

[14] K.A. could not recall how the incident ended but testified that they likely got out of the bed and got dressed when her mother came home from work.

[15] On cross-examination, several inconsistencies between her testimony and her statement to the police were put to K.A. In her statement to the police, K.A. stated that Mr. V. made her touch his penis and that he had used his mouth everywhere, from her lips past her chest. K.A. testified that it was not during the bedroom incident that Mr. V. kissed her body everywhere and that he told her to touch his penis. K.A. testified that it was during the “living room incident”, described below, that Mr. V. told her to touch his penis and that it was during the “moving incident” that he kissed her body everywhere.

[16] On cross-examination, K.A. was challenged on the fact that she had not told police that Mr. V. licked her armpits. K.A. testified that she did not tell the police about Mr. V. licking her armpits because she did not know at the time whether it was something wrong. She admitted, however, that it might not have been during the bedroom incident that Mr. V. licked her armpits, but that it was something he did often. In addition, contrary to her testimony at trial, in her statement to the police, K.A. stated that Mr. V. was wearing a shirt. K.A. admitted that she might have mixed-up certain details about the alleged assaults as happening during one incident as opposed to another.

[17] On the issue of what Mr. V. said to her during that incident, it was put to K.A. that she told police that Mr. V. told her to spread her legs and that he did not ask if he could “put it in.” K.A. testified that he told her to spread her legs during a different incident, the moving incident but that she specifically recalled him asking if he could put it in. In fact, contrary to what was suggested on cross-examination, K.A. told police that Mr. V. asked if he could “put it in” during the bedroom incident and that she said no.

The Living Room Incident

[18] K.A. testified that some of the acts that she had told police happened in the bedroom actually took place during a different incident in the living room of the one-bedroom apartment. K.A. testified that on that occasion, Mr. V. said he was going to sleep in the living room. She said that she would sleep there with him. A.P. and S.A. then joined. K.A. testified that it was not uncommon for the family to sleep on blankets or a “pull-out thing” on the floor. K.A. testified that this was something done in Indian families.

[19] On that night, K.A. was lying next to Mr. V. K.A. testified that Mr. V. told her to put her hand on his penis. She testified that her hands were down his pants, touching his penis. After a while, a “liquid” came out. She testified that she did not know what it was at the time, but it felt like “snot”. She wiped her hand on the blanket and then went to the washroom to wash her hands. K.A. testified that Mr. V. did not kiss her on that occasion because A.P. and S.A. were there.

[20] On cross-examination, K.A. was confronted with the fact that she had not told the police about any abuse taking place in the living room. K.A. again explained that in her statement, everything came out as one memory. She testified that she told police about the specific things that took place in the living room, such as Mr. V. telling her to touch his penis and ejaculating in her hand, but that she did not specify where it happened. Based on her statement, those things happened during the “bedroom incident.” K.A. admitted that she had not told police about an incident that happened with A.P. and S.A. in the same room. K.A. testified that when she spoke to the police, she was focused on what Mr. V. did to her, and details such as where they were or who was there were not prominent in her mind.

The Car Incident

[21] K.A. testified that on another occasion, she and Mr. V. were in his car in the parking lot of the apartment building. Mr. V. was sitting in the driver’s seat with the seat reclined back and she was sitting on top of him straddling him with her legs. K.A. testified that he was touching her all over on top of her clothes and kissing her on the mouth and using his tongue. She remembered that his breath smelled like cigarettes. K.A. testified that Mr. V. touched her vagina under her clothes and the rest of her body over her clothes. K.A. testified that Mr. V. told her he loved her and that she told him she loved him, but she meant as a father.

[22] K.A. testified that she recalls looking at the balcony of their apartment because she thought she would be in trouble if A.P. or S.A. came out on the balcony and saw them. K.A. testified that she and S.A. sometimes went out onto the balcony to see Mr. V. when he was leaving with the car. K.A. testified that she felt like she was cheating with her mother’s husband and felt embarrassed about it. K.A. testified that she did not tell anyone about it because she thought she would be in trouble. K.A. testified that Mr. V. told her not to tell her mother but that he did not threaten her.

[23] On cross-examination, K.A. was asked about the details provided in her statement to the police, which included that Mr. V. kissed her vagina and that he spit on and slapped her in the car. K.A. testified that those things happened, but not on this occasion. K.A. testified that Mr. V. slapped her but that it did not happen during the car incident. While K.A. testified to Mr. V. spitting on her during the “moving incident” below, she did not testify to any incident during which Mr. V. slapped her.

The Moving Incident

[24] K.A. testified that on the day that the family was moving from the one-bedroom apartment to the two-bedroom apartment at Birchmount and Lawrence, she and Mr. V. were alone in the new apartment, which was empty. K.A. testified that it was dark outside at the time. K.A. testified that she was on the floor, and that her pants and underwear were off because Mr. V. had removed them. Mr. V. started to kiss her, and then began to touch her vagina with his hand. K.A. testified that Mr. V. also put his mouth on her vagina and that he “spit” on her vagina. He also spit on his hand and put it in her vagina but she did not understand why. K.A. testified that Mr. V. took out his phone and told her to watch a pornographic video, saying that he wanted her to do to him what was shown on the video.

[25] K.A. testified that she had a vivid recollection of the video, which depicted a woman dragging a man by his penis and then performing oral sex on him. K.A. testified that she was laying down and watching the video for a long time, while he “was doing his thing.” She did not, however, perform the acts depicted on the video on that day.

[26] K.A. was cross-examined about the inconsistency in her evidence at trial, when she said that the only thing Mr. V. was holding was a phone, and her statement to the police in which she said that Mr. V. was holding a beer bottle. K.A. testified that Mr. V. had brought a beer bottle with him to the unit but that he put it down while he was touching her.

[27] As noted above, K.A. testified in chief that it was during the moving incident, and not the bedroom incident, that Mr. V. told her to spread her legs. On cross-examination, K.A. was challenged about the fact that she had not told police that Mr. V. told her to spread her legs during the moving incident, even though the officer had asked if Mr. V. said anything. K.A. testified that Mr. V. said something to her in Tamil like “keep it like this” referring to her legs initially, and not when he was touching her. At multiple points during cross-examination, K.A. explained that when she made her statement to police, the details of the incidents were mixed-up, and all came out as one big memory.

Alleged Assaults

[28] K.A. also testified that Mr. V. frequently disciplined her and S.A. physically. K.A. testified that Mr. V. used hangers and an “Indian broom thing.” K.A. described it as a “normal thing” in their household and that it was usually about school. K.A. testified that she used to hide her report cards when she did not perform well in school. She recalled an incident in Grade 2 when she had a poor report card. K.A. testified that her mother was yelling at her, and Mr. V. came “out of nowhere with a hanger and beat the crap out of me.” When asked where Mr. V. struck her, K.A. testified that he hit her body. K.A. testified that at one point, she asked Mr. V. why he hit her if he loved her, and he told her that he would cry in the bathroom afterwards. She did not, however, ever see him crying.

Disclosure to Police

[29] K.A. testified that she never told A.P. or S.A. about the alleged abuse because they had a “horrible” relationship. K.A. testified that she and S.A. were always fighting and that, at the time, she was not “bonded emotionally” to her mother, so she would not have been able to tell her. K.A. testified that she and S.A. are still not close and that they barely talk.

[30] K.A. was 16 years old when she first alleged that Mr. V. had sexually abused her. In 2020, K.A. was hospitalized for mental health-related concerns. K.A. testified that she was in the hospital for approximately two weeks and that the disclosure took place approximately one week after she was admitted. K.A. first disclosed to a child youth worker, Martin, that she was ashamed about something that had happened with Mr. V. Martin told K.A. that he would have to tell someone. K.A. testified that she was told that A.P. had been notified and that she spoke to A.P. after that. K.A. testified that A.P. asked why she never told her about it but that they did not discuss it further. A short time later, on May 24, 2020, K.A. made a statement to police.

[31] On cross-examination, K.A. admitted that at some point during a different phone call, A.P. told her that S.A. had gone through the same thing too and then passed the phone to S.A., who confirmed that Mr. V. did the same thing to her. K.A. testified that she assumed that Mr. V. touched or sexually abused S.A. too but that they never used those words. K.A. maintained that she and S.A. never discussed any of the details because they are not comfortable with each other. K.A. testified that she confronted S.A. once about S.A. not helping her. K.A. believed that S.A. knew about the abuse because she caught K.A. and Mr. V. in the bed once and because S.A. gave her “the eye” whenever K.A. was with Mr. V. K.A. testified that they never spoke about it again.

[32] K.A. testified that she did not tell A.P. any details, and that they only discussed why K.A. did not tell her before. K.A. testified that she did not talk to A.P. about it because it made her feel “icky” and A.P. would burst into anger.

[33] K.A. testified that she did not say anything to S.A. after S.A. went to the police. She testified that reporting the alleged sexual assaults to the police was not a bonding experience for them, just something off the “to-do list.”

Summary of S.A.’s Evidence

[34] S.A. is currently 23 years old. She came to Canada from India in 2005, when she was four years old. Her younger sister, K.A. was one year old at the time.

[35] S.A. testified that her mother and Mr. V. started a relationship when she was seven years old. After a while, they moved in together. S.A. testified that A.P. and Mr. V. were not legally married but had a ceremony in India when she was in grade 6. She and her sister called him “Dad.”

[36] At the time of the alleged incident, the family was living in a one-bedroom apartment at Birchmount and Lawrence. S.A., K.A., A.P. and Mr. V. all slept in the same bedroom. At first, there was only one double or queen bed, but after a while, they got a bunk bed for S.A. and K.A. S.A. slept on the top bunk. A.P. would frequently sleep with K.A. on the bottom bunk. Sometimes, everyone would sleep on the floor.

[37] S.A. did not recall whether her mother was working when they were living with Mr. V. She could not recall if Mr. V. ever put the girls to bed or did the nighttime routine with them.

[38] One night in 2011 or 2012, when S.A. was 10 or 11 years old, the family went to a temple for an overnight religious ceremony. S.A. testified that they all dressed in Indian clothes for the ceremony. Her mother’s friend went with them. At some point, S.A. became cold, tired and bored and asked to go home. The ceremony would not end for a couple more hours. S.A. testified that her mom told her she could go home with Mr. V.

[39] S.A. testified that she went home with Mr. V. in his car. After they arrived, S.A. was watching television in the living room. She then went into the bedroom because the clothing was uncomfortable, and she wanted to change. S.A. testified that it was not unusual for her to get undressed in the bedroom with the door open or to use the bathroom or shower with the door open. This was “normal” in the household.

[40] S.A. testified that in the bedroom, Mr. V. was lying on the bed with a beer, when he pulled her over. S.A. was still fully dressed at the time. S.A. testified that she was lying beside Mr. V. on the bed when he hugged her. He then put his hand under her skirt and touched her “private part.” S.A. testified that she froze and went “blank” but that it went on for a while. When asked what parts he touched, S.A. testified that Mr. V. both touched the outside of her vagina and inserted his finger inside. In examination in chief, S.A. testified that Mr. V. did not touch her anus. S.A. testified that Mr. V. began to kiss her on the lips. S.A. recalled him using his tongue because she did not like it. S.A. testified that Mr. V. was drinking beer and saying things like, “It’s OK.” S.A. testified that this went on for about half an hour until Mr. V. eventually then let her go.

[41] S.A. testified that as she got up to get dressed, Mr. V. told her not to tell anyone and that if she told her mother, they would take her and her sister away. S.A. testified that a few years earlier, A.P., S.A. and K.A. had gone to live in a shelter because of arguments between A.P. and Mr. V., and the Children’s Aid Society had been involved with the family. S.A. further testified that she was afraid to tell A.P. about what Mr. V. had done to her because Mr. V. told her that if she told her mother, he would beat her. S.A. testified that he used a word like “kill” in Tamil, but that she understood it to mean “beat.” S.A. testified that Mr. V. often beat her and her sister, using things like hangers, belts and utensils.

[42] On cross-examination, S.A. was asked whether A.P. disciplined her physically and whether Mr. V. would try to protect her, and K.A. S.A. testified that it was Mr. V. who beat them with hangers, and that she and K.A. hid behind their mother.

[43] S.A. testified that in any event, she would not have told her mother about the incident because they did not have a good relationship at the time. S.A. testified that she did not tell her sister, K.A., what happened to her because they were not close, and K.A. would always tattle-tale on her to their mother. S.A. said that she and K.A. fought constantly and were mean to each other.

[44] On cross-examination, defence counsel put to S.A. that in her statement to the police, she said that she was completely naked on the bed when Mr. V. was touching her. S.A. testified that she was completely naked at some point but could not recall how or when that happened. She testified that she now recalls him putting his hands up the long skirt of the Indian outfit that she was wearing. She also recalled that he touched her vagina both over and under her underwear. She testified that eventually, her underwear was also removed but she did not recall how.

[45] In addition, on cross-examination, S.A. was confronted with her statement to the police that Mr. V. also inserted his finger in her anus. S.A. testified that she did not now recall that happening but stated that his hands were “everywhere down there.”

[46] On cross-examination, S.A. was also asked whether she had told the police in 2021 that Mr. V. threatened to “beat” or “kill” her in Tamil if she told anyone about the incident. S.A. testified that she did not recall whether she had told the police that but that at the time she gave the statement. [1]

[47] S.A. testified that after the incident, she pretended that nothing happened and her relationship with Mr. V. did not change. S.A. testified, however, that she did not have as close a relationship with Mr. V. as K.A. did. She testified that as a child, she felt envious because Mr. V. gave K.A. more attention and they spent more time together, doing things like cuddling and going to the store together.

[48] S.A. did not tell anyone about the incident with Mr. V. until May 2020. At that time, her sister, K.A., was in the hospital for mental health related issues. A nurse called their mother, A.P., and told her that K.A. disclosed that she had been sexually abused. S.A. testified that A.P. put the call on speaker phone, as was her habit. A.P. was initially in disbelief, and thought it was just another one of their “suicide dramas”. S.A. then told A.P. that it happened to her too. S.A. testified that she provided no details about what happened, only that it had happened to her too. S.A. testified that it was only then that A.P. started to believe what she heard about K.A.

[49] S.A. did not go to the police when K.A. did. S.A. testified that she did not want to go to the police because she did not want to think about what had happened. S.A. did not make a statement to the police until November 22, 2021. In chief, S.A. testified that she went to police because she thought it might help her heal and work through what happened. Before that, she avoided thinking or talking about the incident because doing so “brings it up.”

[50] On cross-examination, S.A. admitted that before she made her statement to the police, she heard through a “social worker lawyer” with victim services that Mr. V. was on bail. She understood from that conversation that if she went to the police, the allegations against him would be stronger. On cross-examination, S.A. admitted that she had told police that she was making her statement because she wanted to make the case against Mr. V. stronger, so that he would not be able to get out as easily.

[51] S.A. testified that she did not discuss any specifics about the incident with A.P. or K.A. at any time. At some point, S.A. understood that K.A. was upset with her because K.A. believed that she had caught K.A. with Mr. V. multiple times but never stepped in to help her. In chief, S.A. testified that she heard this through A.P., who likely heard it from K.A.’s therapist. S.A. testified that she understood that this was the reason was why K.A. started “not liking” her. On cross-examination, S.A. initially denied having spoken to K.A. about it and maintained that her knowledge came from A.P. When it was put to S.A. that she told police that she told K.A. that she did not know what was going on, she admitted that she must have had a conversation with K.A. about not stepping in.

[52] K.A. testified that some time before S.A. went to the police, she said to her “Bro, you knew” and S.A. told her that she genuinely did not know. K.A. testified that that was the extent of the conversation.

[53] S.A. testified that she did not know that anything was going on between Mr. V. and K.A. because as children, she, K.A. and Mr. V. would sometimes play games in which they would chase, wrestle and tickle each other, and remove the other person’s pants and underwear. S.A. testified that at the time, she thought it was “normal” play, but that in hindsight, she cannot understand how her mother allowed it. S.A. admitted that in her statement to the police, she could not recall whether her mother was there when it occurred.

Summary of E.V.’s Evidence

[54] Mr. V. is 53 years old. From 2007 to 2010, Mr. V. was employed at Bombardier. In 2010, he was laid off from that position. After that, he worked for the supplement company, GNC, from 2010 to 2012. Mr. V. lost that job after he broke his arm and could no longer operate the equipment. In 2012, Mr. V. began to work as a cleaner.

[55] Mr. V. testified that he met S.A. and K.A. in August 2009, when he began a relationship with their mother, A.P. They moved in together in an apartment at Islington and Finch in October where they lived until they took a trip to India in July 2010. Mr. V. testified that they all travelled to India for a ceremony in July 2010. Mr. V. testified that after their return, he and A.P. had a “difference of opinion.” The issue had to do with each of them applying for welfare using the same address, which would reduce the benefits that they would receive. He testified that A.P. and the girls moved somewhere else in September 2010.

[56] In mid-2011, Mr. V. and A.P. moved back in together at the apartment at Birchmount and Lawrence. Mr. V. testified that it was a one-bedroom apartment, with a queen bed and bunk bed in the bedroom. A.P. slept in the bunk bed with one of the children, while he slept in the queen bed alone. Mr. V. admitted that he sometimes slept on the bed with the children during the daytime on weekends.

[57] Mr. V. testified that he moved out of that apartment in mid-2012 because of a “difference of opinion” with A.P. In chief, Mr. V. testified that the difference of opinion was about the same issue as previously. On cross-examination, Mr. V. admitted that the argument arose because he suspected that A.P. was having an affair. Mr. V. testified that he did not live with A.P. and the girls after that point. Mr. V. testified that he continued to help them, such as taking them grocery shopping. He testified that in 2013, he was invited to their apartment for S.A.’s coming of age celebration. In January 2014, he went to help A.P. and the girls move to a two-bedroom apartment in the same building. On that occasion, he stayed overnight to help with the move. Mr. V. testified that other than that, he did not attend their home.

[58] Mr. V. testified that he loved S.A. and K.A. as his own children. He testified that he was previously married and had two daughters. However, in 2006, when they were 18 months and three months old, they were killed by his previous spouse, who was eventually found not criminally responsible. Mr. V. described S.A. and K.A. as his “two eyes.” He testified that he played with them, took care of them and took them places for fun. He also took them to school and on errands. Mr. V. testified that he was physically affectionate with them, hugging them and kissing them on the head and cheeks. He denied kissing either of them on the lips.

[59] Mr. V. testified that he was in India in 2020 when the COVID-19 pandemic began. He received a phone call from his sister regarding the allegations. He testified that when he heard about the nature of the allegations he felt “strange” and “did not have a clue” as to whether they could be true. He was arrested in 2021 when he returned to Toronto.

[60] Mr. V. denied ever touching K.A. in a sexual manner or showing her pornography. He specifically denied being parked in the parking lot of the building with her on his lap.

[61] Mr. V. testified that he, A.P., S.A. and K.A. only slept on the hallway floor with blankets at the Islington apartment when they were moving and that this never happened at the Birchmount and Lawrence apartment because they had beds. Mr. V. admitted that it was not an uncommon practice in Indian families for the whole family to sleep together on occasion.

[62] Mr. V. testified that when he lived with S.A. and K.A., he had a Motorola flip phone that did not have access to the internet. He testified that he was on a “pay as you go” plan. He testified that he had access to A.P.’s laptop but did not know how to type or use the internet. He denied ever using A.P.’s laptop to access pornographic websites. His evidence was that A.P. kept her laptop under lock so the children would not break it.

[63] Mr. V. testified that in March 2012, the four of them went to a ceremony at the temple at Birchmount and Eglinton. They were accompanied by A.P.’s friend. Mr. V. testified that he was unable to stay awake all night for the ceremony because of work. At approximately 3:30 a.m., he and S.A. went home to the apartment at Birchmount and Lawrence. Mr. V. testified that both he and S.A. fell asleep in the bed in the bedroom. He did not change his clothes. Mr. V. testified that he set his alarm because he had to pick up A.P. and K.A. at the temple at 6:00 a.m. Mr. V. denied drinking alcohol that night because, as required for the ceremony, he was fasting.

[64] Mr. V. testified that he did not discipline S.A. and K.A. physically. On one occasion, when S.A. and K.A. were fighting and pulling each other’s hair, he hit K.A. on the buttocks and asked why she was hitting her sister. Mr. V. testified that the argument then stopped.

[65] Mr. V. testified that he would tickle and play with S.A. and K.A. when A.P. was there. He also testified that he and A.P. never had sexual intercourse at nighttime in the bedroom while S.A. and K.A. were also sleeping in the same room. He testified that they would have sexual intercourse during the day.

[66] Mr. V. testified that in 2013, he had an argument with A.P. during which she threatened to make him a pauper and bring him to the street. He testified that she refused to give him his Canadian citizenship certificate.

Analysis

Should the Crown’s Similar Fact Application be Granted?

[67] The Crown seeks an order for the admission of similar fact evidence across the counts on the indictment, such that the totality of the evidence is admissible in respect of each count.

[68] The Crown submits that there is a high degree of similarity in the manner in which Mr. V. sexually assaulted each complainant and the circumstances in which the alleged abuse took place.

[69] The defence submits that the similar fact evidence ought not to be admitted because it is tainted by actual or unconscious collusion and because its prejudicial effect outweighs the probative value.

The Applicable Principles

[70] The framework for analyzing whether similar fact evidence should be admitted was set out by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56. Similar fact evidence, or evidence of general propensity or disposition, is presumptively inadmissible because evidence of discreditable conduct of the defendant which relates to an event other than the particular count at issue carries the potential for prejudice, distraction and consumption of time: Handy, at para. 37.

[71] Similar fact evidence may be admitted, however, if the prosecution demonstrates on a balance of probabilities that in the context of the case, the evidence is relevant and material, and its probative value in relation to a particular issue outweighs its potential prejudicial effect: Handy, at para. 55.

[72] In R. v. Bent, 2016 ONCA 651, at paras. 38-44, the Court of Appeal elaborated on the assessment of probative value of the evidence, as involving four inquiries, as follows:

(a) Does the evidence relate to a specific issue, other than that the accused is a person of bad character?

(b) Is the evidence tainted by collusion, which undermines the improbability of coincidence?

(c) What are the similarities and differences between the evidence that forms the basis of the charge and the proposed similar fact evidence?

(d) How strong is the evidence that the similar acts occurred?

[73] The probative value of similar fact evidence is assessed by considering the following factors, set out in Handy, at para. 82, that relate to the connectedness between the similar fact evidence and the circumstances of the charge:

(i) The extent to which the other acts are similar in detail to the offence charged;

(ii) The proximity in time of the similar acts and the offence charged;

(iii) The number of occurrences of the similar acts;

(iv) The circumstances surrounding or the context in which the similar acts occurred;

(v) Any distinctive feature or features unifying the incidents or intervening acts; and

(vi) Any other factor which would support or rebut the underlying unity of the similar acts.

[74] The prejudice to be weighed includes: (i) moral prejudice, that the accused is more likely to have committed the act in issue because they have committed morally repugnant acts in the past; and (ii) reasoning prejudice, or the distraction of the trier of fact from the offence charged: Handy, at para. 139.

Findings

[75] The four inquiries outlined in Bent will be analyzed below in the context of the evidence.

Probative value

(a) Relates to a specific issue

[76] First, the probative value of the evidence can only be determined in light of the purpose for which the evidence is proffered: Handy, at para. 69. As a result, the Crown must first establish “the specific factual issue on which the evidence is probative of the improbability of coincidence.” Handy, at para. 74.

[77] In this case, the similar fact evidence is relevant to the following issues: (i) to prove that the alleged acts occurred through a pattern of behaviour on the part of the defendant; and (ii) to assist in rebutting allegations of recent fabrication on the part of the complainants.

[78] The probative value flows from the “double inferences” that: (i) the evidence supports the inference that the accused has a particular propensity to engage in a specific type of conduct; and (ii) the evidence supports the further inference that, on the occasion in which he is charged for, the accused engaged in that very kind of conduct – thereby keeping with his propensity to do so: Handy, at paras. 26-29, 42 & 47.

[79] In a sexual assault case, similarity in the surrounding circumstances can be highly probative. Moreover, similarity in circumstances can suffice notwithstanding some dissimilarity in the nature of the acts: R. v. S.C., 2018 ONCA 454, at paras. 23-24.

[80] The alleged conduct is indicative of a situation-specific pattern of behaviour, that is, sexually assaulting the two complainants who were both children in the family home, while the defendant was their stepfather. The nexus between the allegations is strong and specific, and the probative value of the similar fact evidence is high. The similar fact evidence is not adduced for the purpose of demonstrating a general disposition to engage in sexual misconduct or criminal behaviour.

(b) Actual or unconscious collusion

[81] Second, the court must determine if the evidence is tainted by collusion, which undermines the improbability of coincidence between the similar fact evidence and the offences charged. Where there is some evidence of actual collusion, or at least an air of reality to the allegation of collusion, the Crown must satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion, whether actual or unconscious: Handy, at para. 112; R. v. Wilkinson, 2017 ONCA 756, at para 36.

[82] The defence alleges actual or unconscious collusion between the complainants. The defence argue that between K.A.’s initial disclosure in May 2020 and S.A. disclosure to the police in November 2021, they had 18 months to discuss the particulars. The defence further argues that even if K.A. and S.A. were not close, they each spoke about the alleged sexual interference to their mother, A.P. Because A.P. spoke to both K.A. and S.A., there is a risk that each complainant’s allegations are tainted by knowledge of the other’s.

[83] In the circumstances of this case, as detailed further in these reasons, I find that there is an air of reality to the assertion of both actual and unconscious collusion. The complainants are sisters who have always lived in the same household. They have had ample opportunity to discuss the allegations with each other. The evidence of both S.A. and K.A. is that they did not discuss the specific allegations with each other. However, they had at least one conversation after K.A. alleged that Mr. V. sexually abused her in which S.A. told K.A. that the same thing happened to her. In addition, they both testified that K.A. confronted S.A. about not helping her. Both also disclosed the allegations to their mother, A.P., who tried at various time to discuss the matter with them.

[84] While I have found that there is an air of reality to the assertion of both actual and unconscious collusion, I am satisfied that the Crown has demonstrated on a balance of probabilities that the possibility falls short of tainting the evidence so as to render it inadmissible as similar fact evidence. Both K.A. and S.A. denied speaking to each other about the particulars of their respective allegations against Mr. V. Other than a conversation confirming that each experienced the same thing and K.A. confronting S.A. about whether she knew what was going on, they did not talk about the incidents. While their relationship is better than it once was, they are still not close and do not feel comfortable talking to each other about many things. As Hill J. cautioned in R. v. Plews, 2010 ONSC 5653, at para. 378, “[s]ome discussion between sisters or close friends of unwanted physical touching by an adult would not be unexpected in the ordinary course. Care is warranted that a complainant not be criticized both for speaking to others and for not reporting.” See also: R. v. Shearing, 2002 SCC 58, at para. 43.

[85] Similarly, neither K.A. nor S.A. spoke about the particulars of the allegations with A.P. because they felt uncomfortable doing so and because she would become angry. It is therefore unlikely that either of them learned the details of the other’s allegations through A.P.

[86] At this stage, I further recognize that the possibility of collusion remains a factor in my assessment of the weight of the similar fact evidence.

(c) Similarities and differences

[87] Third, the court must consider the similarities and differences between the evidence that forms the basis of the charges and the similar fact evidence sought to be admitted.

[88] The allegations of each complainant are similar in detail, and in the context and circumstances in which they occurred. The similarities between the allegations made by S.A. and K.A. are as follows:

• The time period during which the alleged incidents took place, between January 2011 to 2014
• Mr. V. was a stepfather to both of the complainants, who were both children when the incidents took place;
• The incident involving S.A. and one incident involving K.A. took place in the bedroom of their one-bedroom apartment;
• The allegations involve Mr. V. kissing the complainants and touching their genitals;
• Both complainants allege that Mr. V. was drinking beer when a touching took place;
• Mr. V. told both complainants not to tell their mother what happened;
• Both S.A. and K.A. allege that Mr. V. struck them with a hanger.

[89] There are, however, differences in each complainant’s account. S.A. testified that Mr. V. threatened to beat her if she told her mother about what happened. K.A. testified that Mr. V. did not make any threats but that she did not tell anyone because she felt ashamed. S.A. testified to one incident of sexual touching by Mr. V. K.A. testified that Mr. V. sexually assaulted her on a regular basis. The incident alleged by S.A. took place when she and Mr. V. were the only two at home. K.A. alleged that Mr. V. sexually assaulted her when S.A. was home and also when both S.A. and A.P. were in the same room (the “living room incident”).

[90] In my view, the differences are few and relatively minor in comparison to the similarities. Moreover, the differences are explained by both K.A. and S.A.’s evidence that Mr. V. favoured and spent more time with K.A.

(d) Strength of the evidence

[91] Fourth, the court must consider the strength of the evidence that the similar acts occurred. The similar fact evidence must be reasonably capable of belief: Handy, at paras. 134-136. The evidence must also be capable of supporting the inferences identified by the Crown as supported by the similar fact evidence: Handy, at paras. 94-96.

[92] In this case, and as will be detailed further in these reasons, the evidence of similar acts meets the threshold of being reasonably capable of being believed and of logically supporting the inferences sought by the Crown.

[93] Based on the foregoing analysis of the four inquiries identified in Bent, as well as the Handy factors, I find that the probative value of the similar fact evidence is high.

Prejudicial effect

[94] The risk of moral prejudice, reasoning prejudice, and confusion of the issues by the trier of fact are lessened when the other acts alleged are charges that are already before the court on a multi-count indictment: R. v. Shearing, 2002 SCC 58, at para. 69. The Court of Appeal has found that “the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice”: R. v. MacCormack, 2009 ONCA 72, at para. 69.

[95] In my view, the prejudicial effect of admitting the similar fact evidence is minimal. The evidence does not distract from the offences charged. The similar fact evidence was heard in any event and did not increase trial time. Any potential moral prejudice can be counterbalanced by an instruction to myself, as trier of fact, to consider the similar fact evidence solely for the purpose for which it is tendered and to refrain from any prejudicial reasoning based on a general disposition or propensity. In addition, S.A.’s allegations and K.A.’s allegations are of similar gravity. Neither incident is likely to overwhelm the assessment of the other incident.

Weighing probative value and prejudicial effect

[96] After considering all these circumstances, given the degree of similarity in the evidence of each complainant, the probative value is high because it supports a clearly defined, situation-specific propensity on the part of Mr. V. Moreover, the evidence is relevant to the issue of fabrication. The probative value outweighs the prejudicial effect, which I have found to be minimal in the circumstances.

[97] Accordingly, I find the similar fact evidence admissible across the counts on the indictment.

[98] I instruct myself to consider the similar fact evidence solely for the purpose for which it is tendered and not for the purpose of engaging in any prejudicial reasoning based on a general disposition or propensity of the defendant to engage in sexual misconduct. I further instruct myself to consider the possibility of collusion in my assessment of the weight of the similar fact evidence in my ultimate decision on the whole of the evidence: R. v. F. (J.), at para. 86.

Assessing the Evidence

The Applicable Principles

[99] Before proceeding with an assessment of the evidence, it is useful to set out the principles that are applied by the court in weighing the evidence.

[100] To begin with, the defendant is presumed innocent. The Crown bears the burden of proving the elements of the offence beyond a reasonable doubt. The reasonable doubt standard is a high standard. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.

[101] In assessing the evidence, the court must follow the approach set out by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742 at pp. 758. The following analysis applies:

(i) If the court believes the defendant’s evidence, he must be found not guilty;

(ii) If the court does not believe the defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty; and

(iii) Even if the defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown proves the charges beyond a reasonable doubt.

[102] At the first step of the W.(D.) analysis, a defendant’s evidence should not be considered in isolation but in the context of all the evidence: R. v. Hoohing, 2007 ONCA 577, at para. 15. Thus, if the defendant’s account is believed or leaves the court with a reasonable doubt about what happened, within the context of the totality of the evidence, he must be found not guilty.

[103] If, after considering the whole of the evidence, the court is not sure who to believe, this can also give rise to a reasonable doubt: R. v. J.H.S., 2008 SCC 30, at paras. 11-12.

[104] In weighing the evidence, I must assess the credibility and reliability of the witnesses’ testimony. This involves a consideration of the internal consistency of each witness’s testimony and its consistency in the context of the evidence as a whole. I am mindful that in assessing credibility and reliability, I must be careful not to place too much emphasis on the demeanour of any particular witness in court.

[105] In R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133, the Supreme Court of Canada held that “every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.” The Court went on to state as follows:

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.

[106] In the end, I must determine whether the Crown has met its burden of proof based on the entirety of the evidence heard. My determination is not based on who is more believable, as between the defendant and the complainants, but is guided by the Crown’s burden to prove its case beyond a reasonable doubt.

[Further detailed analysis and findings omitted for brevity; see full text above for all sections and findings.]

Conclusions

[177] For all the foregoing reasons, Mr. V. is found guilty of Count 1, sexual interference in relation to K.A. Mr. V. is found not guilty of the remaining charges.

Sandra Nishikawa

Released: January 23, 2025

[1] On this point, the content of the statement to the police was not put to S.A. and it is not clear whether she did or did not tell police about it.

[2] After this issue arose, the defence advised the court that they would not be bringing an application for disclosure of any third-party records.