CITATION: R. v. F. D., 2025 ONSC 5086

COURT FILE NO.: CR-23-00000014

DATE: 2025/09/05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE KING — Plaintiff

– and –

F. D. — Defendant

COUNSEL:

W. Beatty, for the Crown

D. Gosbee, for the Defendant

HEARD:

March 17-21 and 26, 2025

PUBLICATION RESTRICTION NOTICE

INFORMATION THAT COULD IDENTIFY THE COMPLAINANT IN THIS CASE CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA, MADE BY JUSTICE R.A. BELLOWS ON MARCH 17, 2025

BELLOWS, J.

REASONS FOR JUDGMENT

Introduction

1The accused, F. D., is charged with sexual interference, contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C.46, between the 1st day of July in the year 2008 and the 31st day of July 2008 on the First Nation Territory of Wasauksing for touching B. B., a person under the age of fourteen, for a sexual purpose.

2A six (6)-day trial was conducted before me – evidence was heard daily from March 17-21, and submissions of counsel were made on March 26, 2025. The court heard from six (6) witnesses, three (3) each from Crown and defence: Anishinabek Police Service Officer, D. Enosse, the complainant (B. B.), her mother, (L. B.), the accused (F. D.), and two of his daughters (B. D. and J D-G.).

Background Facts

3The accused, F. D., is the father of six now-adult children. The family, a member of the Wasauksing First Nation, owns a property that was once F. D.'s mother's primary residence. It is now used, as it was in 2008, as a family cottage. For the sake of clarity, I will refer to this property as the "cottage", although at times some witnesses referred to it as the "house". The offence is alleged to have occurred at the cottage on Wasauksing First Nation territory in the District of Parry Sound.

4The allegation of sexual interference took place on a weekend in July 2008. On that weekend, the accused's family hosted a large gathering of family and friends at the cottage. There were approximately 25-30 people in attendance, possibly more. This included, at the very least, F. D., his daughters B. D., J. D-G., C. H., D. D., and his son, F. D. Jr., and many of their partners.

5Also present were many of J. D-G.'s friends, including the complainant's mother, L. B. Many of the young adults in attendance had children with them, ranging in age from a few months to 7 years old. B. B. was the eldest of the children in attendance at the age of 7. She is now 24 years old.

6There were at least five tents, and a shelter set up on the property, many of which were located near the cottage. Most adults slept in tents, while most children slept in a single bedroom in the cottage. Not all witnesses agreed on the number of children sleeping in this room, but it ranged from 5 to 8.

7Generally speaking, the events of this July 2008 weekend began on Friday evening with guests arriving from the Greater Toronto Area and ended the following Sunday. The sexual interference is alleged to have happened at some point after 9 p.m. Saturday night and before 5 a.m. on Sunday.

8B. B. alleges that F. D. entered the bedroom. She was still awake, though the other children were sleeping. One of F. D.'s grandchildren was sleeping next to her. B. B. testified that he rubbed her stomach and then inserted two of his fingers into her vagina. She testified that he touched his penis while doing so. Once he finished what he was doing, he left the room.

9There is a much larger narrative involving the other adults that weekend. It appears that this is how the witnesses were able to identify which weekend it was in 2008 – nearly 17 years later. At some point, the accused's family dubbed it "Fight Weekend" after J. D-G. and her then-husband, H. G., engaged in an extensive verbal argument that turned physical, involving F. D. Jr. and D. D. While much evidence was presented regarding this lengthy altercation, I intend to refer to it only insofar as it assists me in assessing the credibility and reliability of some of the witnesses.

10F. D. testified on his own behalf. He wholly denied the allegations and pointed to various reasons why he would not have had the opportunity. Furthermore, the defence called two other witnesses who also presented a narrative that suggested it would have been difficult, if not impossible, for F. D. to commit the offence charged.

11I will provide a summary of the evidence of each witness. Although it will not be exhaustive, I have carefully reviewed the evidence in its entirety to draw the conclusions presented in these reasons.

THE CROWN'S CASE

Evidence of APS Officer, D. Enosse

12Constable Enosse became involved in the matter on May 11, 2021, after receiving a call from Peel Regional Police ("PRP"). PRP had taken a statement from B. B. and sent it to Constable E. as it was alleged to have occurred in Wasauksing. The investigation continued through the Anishinabek Police Service.

13Constable Enosse testified about the location of the cottage property. He also testified about taking statements from some individuals and, ultimately, charging F. D. with the offence before the Court. F. D. attended the police detachment on November 4, 2022, and was released on an undertaking.

Evidence of the Complainant's Mother, L. B.

Overview of Connections and Cottage Weekend

14L. B. is the complainant's mother. She became friends with J. D-G. in grade 9 and was therefore familiar with the accused's family. In 2008, L. B., the accused's children, and their friends were all around their mid-late 20s on average. Many of them had children. She knew F. D. as "Big Daddy". Everyone called him Big Daddy.

15L. B. has two children, B. B. and her younger sister, F. B., who has a significant disability. According to L B.'s evidence, she was not at the cottage that weekend. L. B. and B. B. were able to attend because F. B. was at a camp for children with special needs.

16L. B. and other friends were invited to the accused's family cottage in Wasauksing for a weekend in July 2008. L. B. and B. B. travelled up on the Friday with L. B.'s friend H. and her children. Several vehicles met and then travelled to the cottage together. She listed a large group of people who were travelling together and was able to list others who were in attendance during the weekend.

17L. B. described the cottage and the property. She testified to the activities of the weekend, including swimming, barbequing, and partying. Most of the children, including B. B., slept in one bedroom in the cottage, while most of the adults slept in tents on the property. There were at least five tents on the property that weekend. She believes that as many as eight children were sleeping in one room, either on beds or on the floor.

18Exhibit 2 in the trial was a 110-page photobook. These photos were taken from L. B.'s Facebook album. Her evidence is that all images in the album were taken with her camera and were uploaded by her – none were left out from what she could recall. This exhibit was referenced extensively by each civilian witness.

Saturday Night

19Once the children were put to bed on Saturday evening, the adults continued to consume alcohol and marijuana around the campfire. Some got more intoxicated than others. When asked to consider a scale of 1-10 (from sober to "comatose"), L. B. described herself as a 5-6 and J. as a 10. F. D. did not drink much, maybe two drinks.

20Sometime around midnight, they went for a night swim off the property. L. B. testified to having a conversation with J. about having F. D. watch the sleeping kids so that the adults could go. On L. B.'s evidence, J. entered the cottage and asked her dad to watch the kids, and he agreed. F. D.'s wife was supposed to attend the cottage but was not there.

21Upon their return to the cottage property, J. and H. were arguing. The argument continued around the fire. She was hitting him. He was upset and said that she needed to deal with her issues with her dad and stop taking it out on him. According to L. B., this was repeated several times. She asked H. what was going on and was told to ask J. D-G. She then asked J. D-G. and recalled that she was upset and crying. J. disclosed that her father had been raping her since she was 13.

22L. B. was concerned about having left the children with F. D. She detailed going into the cottage, confronting F. D., waking B. B. to ask if he had touched her, and then further confronting F. D. before exiting the cottage. The accused was the only adult in the cottage when she went in, though others followed her in.

23When she entered the children's room, B. B. was on the top bunk with another child. She woke B. B., who asked, "Mommy, why is everyone yelling?" L. B. asked her if Big Daddy touched her. B. B. made a face and said, "No." She asked again, and she made the same face. L. B. then said that if he did, she had to tell her, and she would not be in trouble. B. B. replied, "No, Mommy, he didn't." She then left the room for her to go back to sleep.

24During cross-examination, L. B. was asked how the fight between J. D-G. and H. G. ended. She testified that the accused came out and broke it up. This was after the disclosure and confrontation with F. D. in the cottage.

25L. B. returned to the campfire. She called her boyfriend and said she needed to be picked up – that she could not stay. He arrived around 5 or 6 o'clock the next morning; they packed up and left. L. B. and B. B. never returned to the accused's family cottage.

26In the years following, L. B. and J. D-G. continued to be friends. Their kids continued to get together when they were younger. B. B. had a sleepover at J. D-G.'s 3-4 years later.

B.'s Disclosure

27L. B., B. B. and B. B.'s husband were together at a hotel for New Year's Eve 2019-2020. J. D-G. messaged L. B. to wish her a "Happy New Year." When B. B. learned of J. D-G.'s message, she and her husband started arguing and then B. B. left the hotel.

28When B. B. was gone, her husband told L. B. that they were arguing because he felt that B. B. should tell her something, and she did not want to. He told L. B. that B. B. had trust issues because when she was a child, they went away for a weekend with J. D-G., and F. D. raped her.

29When B. B. returned, L. B. asked B. B. about it and she disclosed at this time that F. D. had touched her.

30L. B. called J. D-G. and told her that B. B. had disclosed the sexual assault. L. B. asked J. D-G. to set something up so she could speak to F. D. She testified that the accused refused to meet with her, and he denied any wrongdoing.

Evidence of the Complainant, B. B.

31B. B. is now 24 years of age. At the time of the allegations, she was 7 years old.

32B. B. testified that her sister was away at camp, which allowed her and her mother to go to J. D-G.'s cottage. She recalls the cottage, but only remembers one of the bedrooms – the one she slept in – and the bathroom.

33She recalls sleeping in a bedroom on the top bunk with J. D-G.'s daughter. There were two children on the bottom bunk and a boy on an air mattress. She was the oldest of the children.

34B. B. was able to identify the accused in the photos from Exhibit 2.

35She described some of the activities at the cottage. She recalled her mother taking her and J. D-G.'s daughter to bed. Sometime later, when she was asleep, F. D. entered the room and walked to her side of the bed, which was closest to the wall. She testified: "I was raped."

36B. B. recalled that she was wearing a nightdress. She testified that F. D. tried to lie in the bed, but that it was difficult because she was on the top bunk. She testified that F. D. pulled up her nightie, used his middle finger to make circles, counterclockwise, around her belly button. He then used the same hand and assaulted her. He used his other (left) hand to touch his penis, though she could not see his penis. He was standing with one leg on the bottom bunk.

37B. B. asked for her mom. He shushed her. She testified that she was crying, and when he removed his fingers from her vagina, she asked for her mom again; he "pretty much just shushed" her. He told her that if she did not want anything to happen to her younger sibling, she should not say anything. She specifically recalled him using the word "sibling".

38Sometime after that, her mother entered the room and asked her if F. D. had touched her. She lied and said no. She was unsure if what had happened was wrong.

Disclosure

39B. B. testified that she and her husband had argued sometime before she graduated from college. She graduated in 2020. She recalls being in the car with her mom on her way to a college class. Her mom was asking her if something had happened, and she answered "yes" under her breath. She told her mom that when she was 7, she did not understand, was scared of F. D., and worried it would ruin her mother's friendship with J. D-G.

40Before the disclosure, her family and J. D-G.'s family had still gotten together for birthdays and some holidays. After the disclosure, they were no longer friends.

41In addition to disclosing to her mother, she disclosed to her husband. Just after it happened, she also disclosed to some children at school, as she was trying to understand what had happened and whether it was wrong.

42She denied disclosing to her mother's friend, S. T. She described S. T. helping with her addiction issue, but not the sexual assault. In cross-examination it was suggested to B. B. that an interference from her statement to police was that she told S. T., about the assault, but B. B. denied it.

B. B.'s Recollection

43B. B. is relying on the memory of a 7-year-old. She testified that she has some vivid memories, but she also has limited memory. She did not recall seeing F. D. Jr.'s baby, but she did remember J. D-G.'s little girl because that was who she played with. She recalled seeing F. D. She does not recall seeing F. D.'s wife.

44She recalls travelling to the cottage with her mom's friend H., and although she assumes her children were there, she does not recall them.

45Her recollection appears to be limited to J. D-G.'s daughter, a few adults she recalls being present, some of the activities she participated in, the bedroom and bathroom in the cottage, the assault, and her mother waking her. No kids were sleeping on the floor.

46B. B. recalls F. D. being in the cottage when she went inside.

47She testified that she was wide awake from the time her mom brought her to bed and F. D. entered the room. She does not recall any adult voices during that time. She was unaware that the adults went swimming.

48F. D. came into view as the door opened and stood there staring. Then, he closed the door and asked what her mom had said. He did not enter the room a second time. Only once. Her mom had not come into the room to ask if he had touched her before F. D. assaulted her. She did not know what he was referring to, but she told him it was personal.

49A few minutes after F. D. assaulted B. B. and left the room, she got up and went to the bathroom. While she was in the bathroom, she heard a commotion – an argument or fight – outside. She did not hear her mother's voice. She did not see anyone in the house or any lights on in the living room when she went to the bathroom.

50There was some inconsistency between the sequence of events in her statement and the sequence of events she gave in court. B. B. testified that she did not attempt to sequence the events in her statement because she was not asked to do so.

51When L. B. entered the room, she seemed upset. B. B. recalls that J. D-G.'s daughter woke, but none of the other kids woke. B. B. turned to J. D-G's daughter and asked if she would cuddle with her, and she did.

52B. B. recalls being woken by her mother to leave on Sunday. She recalls leaving but does not recall who drove them home. It was not her mom's friend, H.

EVIDENCE CALLED BY THE DEFENCE

Evidence of the Accused, F. D.

53F. D. provided evidence on his own behalf. He completely denied the allegations. He tried to establish that, although he was there, not only did he not assault B. B., but that he would not have had any opportunity to do so.

54He testified that his now-deceased wife, L. D., was present and also sleeping in the cottage in one of the bedrooms. He further testified that he spent his time with his daughter, B. D., and that they both slept on the sofas in the living room. He testified that B. D. was living at the cottage in 2008 but had given up her bedroom for one of the guests.

55F. D. denied arriving on Friday and maintained that he arrived on Saturday with L. D. In doing so, he maintained that some of the photos in Exhibit 2 must have been taken on a different weekend. It did not rain on Saturday, but pictures from the campfire show tarps up behind him. His evidence was that the tarps would be used for rain protection. Although he could not point to another time that L. B. and B. B. were at the cottage, he maintained that the photos must have been from another time.

56He denied being asked by anyone to watch the children during the night swim. He testified that his wife, L. D., was in charge of the children in the cottage. He sat at the fire with B. D. They were joined briefly by his cousin, R. P., on his way to work the night shift at the fish farm. After he departed, F. D. and B. D. took her car to Parry Sound. She was having trouble with it and, as a mechanic, F. D. wanted to see if he could tell what was wrong with it. They made the round trip to Tim Hortons in Parry Sound for this purpose. With coffee in hand, they returned to the campfire.

57Sometime later, the swimmers returned. J. D-G. and H. G. were arguing. It was making some of the guests uncomfortable – they started to go to bed. L. B. was amongst those who left and went to bed. As the argument escalated, they started to get physical with each other. D. D. tried to intervene and ended up fighting with J. D-G. Around this time, L. D. came from the cottage and tried to separate J. D-G. and H. G. She called for someone to get F. D. Jr.

58F. D. Jr. attended, pulled J. D-G. away and punched H. G., breaking his hand (he saw a doctor the next day). L. D. took J. D-G. to the cottage; F. D. Jr. went back to bed. F. D. Sr. sat with H. G., who had a very large lump on his head. Throughout the fighting, F. D. and B. D. remained seated around the fire.

59F.D., B. D., and friend, H returned to the cottage. H went to a bedroom, while B. D. and F. D. slept on either end of the sectional.

60F. D. denies ever entering the bedroom where the children were sleeping. He denies ever touching B. B. He was asked about the logistics of the assault as described by B. B. While he denied it happened at all, he did acknowledge that it may have been possible for him to reach a hand to the top bunk while touching himself with the other hand.

61F. D. further denies that he was ever confronted by L. B. that night in the cottage. On his evidence, L. B. had gone to her tent during the fight at the fire, and he remained at the fire.

Evidence of B. D.

62B. D. was the second witness for the defence. She largely supported her father's version of events on that Saturday, including that neither of them was drinking, and that her parents were both there, having arrived on Saturday.

63B. D. was able to name many people who were in attendance that weekend and correlate them with her siblings, noting who were friends with whom. She knew where some slept, but not where others slept. She was clear that she slept on the sectional in the living room, and that her father, F. D. slept on the other sofa.

64B. D. spoke of the other adults going swimming on Saturday night. She was not part of a plan to care for the kids – she went in for a bathroom break and mentioned to her mother that the adults were gone. She continued to sit at the fire with her father. Cousin dropped by, and he chatted with F. D. before leaving for work.

65B. D. then suggested they go for coffee to take her car for a test drive, as she was experiencing issues with her transmission. Before leaving, she woke her mother to tell her. They drove to Parry Sound and then returned to sit by the fire. She denied that F. D. would have entered the cottage, even for the bathroom.

66Once the other adults arrived back from swimming, they reattended the fire. She recalled a fight that was largely between J. D-G. and H. G. As the arguing turned physical, their sister D. D. tried to hold J. D-G. She pinned J. D-G. to the ground.

67B. D. is not clear on where her father was during the fight. At one point in her evidence, she said she "can't say he was sitting at the fire at that time" and later said that he was "outside", then finally, during cross-examination, she was firm that he was present during the fight.

68She described the fight between the parties. She testified that her mother, L. D. must have been woken because she got her brother, F. Jr., who came out and punched J. D-G.'s husband, H.G. Her mother was yelling and screaming. When the fight was over, people dispersed – L. D. took J. D-G. to the cottage to clean her up.

69She was unable to confirm whether L. B. was at the fire at the time. She did not recall when L. B. and B. B. left. She does not remember speaking to L. B. However, there were pictures of L. B. and B. B. sitting together during the day in Exhibit 2.

Evidence of J. D-G.

70J. D-G. met L. B. in high school. They spent more time together (dancing) following high school. After they had kids, their kids would play together. She does not consider L. B. a close friend.

71J. D-G. testified that B. D. resided at the family cottage for about 5 years. She might have lived there in 2008.

72She testified that L. B. had been at the cottage at least two times. Once without her kids, and once with both of her kids. This particular weekend, L. B. arrived on Friday with her older daughter, B. B. She did not drive up in the convoy with others.

73J. D-G. further testified that her mother and father both attended that weekend, arriving on Friday.

74According to J. D-G., her father always slept on the couch because he had back issues. She did not know where B. D. slept. Without hesitation, she identified B. D. sitting in a tent in one of the images in Exhibit 2.

75During her evidence, she reviewed the photos in Exhibit 2. She identified people in the pictures and maintained that some of the people were not present this weekend (her brother-in-law and a friend). She reasoned that if they had been there, the fight would have been much worse than it was. She was unclear about several others in the photos, saying that they might have been present, but she did not recall. Conversely, she was adamant that B. B.'s sister, F. B., was at the cottage that weekend, despite her not being in any of L. B.'s photos.

76She recalled that on Friday night, they put five kids to bed on the bottom bunk, sleeping sideways. B.B.'s younger sister was at the cottage, but J. D-G. does not believe she was in the room with the other kids because she had special needs. J. D-G. does not know where she was. She clarified that F. B. was not there Friday night – she was at a camp nearby, and L. B. picked her up on Saturday.

77She described the adults going for a night swim. Upon their return, they all went to the firepit – her father, F. D., and sister, B. D., were there. She recalled the argument between her and her husband, H.G., stating that he was upset because he thought she was flirting with another man.

78J. D-G. was, admittedly, very intoxicated. She placed herself at a 9 on the scale, with 10 being "comatose".

79The argument turned physical between her and her husband. Her sister, D. D., got involved, and they were physical with each other. Her brother, F. D. Jr., assaulted H. G.

80Her mother, L. D., came out of the cottage and yelled at them. J. D-G. was sent into the house. She denies having any injuries.

81J. D-G. denies having any conversation with L. B. at the firepit. She denied ever disclosing to L. B. that her father had sexually assaulted her as a child. She did not recall any time when L. B. went to check on the children after they were asleep.

82J. D-G. maintains that L. B. went to her tent before the argument turned physical. She testified that the next morning, she apologized to L. B. for the commotion, and L. B. said she had not heard anything. She said that L. B. left before the evening on Sunday – she did not stay for dinner but was one of the last to leave.

83That weekend was only dubbed "Fight Weekend" by the accused's family after the allegations arose. J. D-G. maintained that her memories of that weekend were clear because it was Fight Weekend. She recalled L. B.'s location and when she went to bed, despite testifying that it was hard to keep track of everyone.

THE POSITION OF THE PARTIES

84The Crown and defence agree on the applicable law in this case. Both submit that the overarching assessment of the evidence will be as part of the test in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 ("W.(D.)"). They further agree that the Court must consider issues relating to the evidence provided by a now-adult, who was a child at the time of the allegation. Finally, they both reference the law pertaining to "motive to lie". I find the latter to be insignificant in the findings of this case, but I have considered the caselaw and submissions provided by counsel.

85The defence submits that I do not have to go beyond the first step of W.(D.) to acquit F. D., but that if I find otherwise, I must still acquit on the second or third step of W.(D.) – they cite significant issues of credibility and reliability, in part, related to the length of time from the alleged incident to the time of trial.

86Counsel acknowledged that, given the passage of time, it would be natural for there to be some divergence in recollection between witnesses.

87In addition to the passage of time, there are concerns about the impact of alcohol and/or cannabis on the recollection of L. B. and J. D-G., and the challenges that come with evidence from the complainant, who is now an adult but was 7 years old in 2008. For all of these reasons, counsel submits that it would be unsafe and dangerous to convict on the evidence before me.

88The Crown submits that, but for the expected evidentiary issues due to the passage of time, B. B. has provided strong, clear evidence of a sexual interference that occurred at the accused's family cottage in July 2008. Counsel acknowledges that there are some sequencing issues, but those are to be expected with the passage of time and the age of the complainant in 2008.

89The Crown submits that the defence witnesses are not credible, and that the evidence of J. D-G., in particular, is not capable of belief. She was extremely intoxicated. The Crown described her memories as those of convenience.

LEGAL PRINCIPLES

The Presumption of Innocence and the Burden of Proof

90The accused is presumed innocent. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden, and it never shifts. The accused has no obligation to prove his innocence. As noted in R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at 682-683, 687, this is an essential and longstanding principle of our criminal law, constitutionally entrenched in Section 11(d) of the Canadian Charter of Rights and Freedoms.

91The Crown must prove the elements of the offences charged beyond a reasonable doubt and disprove any available defences beyond a reasonable doubt. There is no burden of proof on the accused to prove anything.

92The standard of proof beyond a reasonable doubt is an exacting one. A reasonable doubt has been described as one that is not far-fetched, imaginary, or frivolous. It is based on reason and common sense. It is logically derived from the evidence or the lack thereof. It is more than probable or likely guilt and falls much closer to absolute certainty than it does to a balance of probabilities: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 36. However, the Crown is not required to prove anything to absolute certainty as that would be nearly impossible to do: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 87.

93I may find the accused guilty only if I am certain that he committed the alleged offences.

94For me to find F. D. guilty of sexual interference, the Crown must prove beyond a reasonable doubt that B. B. was under the age of 16 at the relevant time, that F. D. touched her, and that the touching was for a sexual purpose.

The Application of R. v. W.D.

95I must consider all of the evidence. How much or how little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify. As the trier, I may decide that the testimony of just one witness is more reliable than other witnesses.

96While under no obligation to do so, the accused testified and denied all the allegations in this case. Accordingly, the principles as set out by the Supreme Court of Canada in W.(D.) apply to my analysis.

97In these circumstances, in assessing the evidence, I have instructed myself under the direction of the Supreme Court in W.(D.), at 757-758:

[…] In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. […]

[…] A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in any reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

98While it has been said that these three W.(D.) steps are not a "magic incantation", following the analytical framework set out in that case ensures that the correct burden and standard of proof are applied: R. v. S.(W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521 at 533. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23:

In a case that turns on credibility… the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

Credibility and Reliability

99The court is required to assess the credibility and reliability of each witness called at trial. To be relied on, a witness's evidence on an issue must be both credible and reliable. The trier of fact may believe some, none, or all the testimony of any witness, including the accused. Where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10-12.

100Reasonable doubt applies to credibility assessments, such that if the Crown's evidence does not rise to the level required for a criminal conviction, even where the accused's evidence is disbelieved, the accused must be acquitted. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt: R. v. Kruk, 2024 SCC 7, at para. 62.

101In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536 ("M. (A.)"), at paras. 12-15, Watt, J.A. reviewed the applicable principles for assessing the credibility of witnesses' evidence. I excerpt the following for consideration in the circumstances of this case:

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at pg. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.

15 …[P]rior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 51, [2008] 1 S.C.R. 272, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of events any more credible or reliable: R. v. Curto, 2008 ONCA 161, 230 C.C.C. (3d) 145 (Ont. C.A.), at paras. 32, 35; R. v. Ay, 1994 CanLII 8749 (BC CA), 93 C.C.C. (3d) 456 (B.C. C.A.), at p. 471 [some citations eliminated]

102While inconsistencies on minor matters or small points of detail are normal and are to be expected, a trial judge must be careful not to improperly discount significant inconsistencies by labelling them as "peripheral," and thus avoiding the duty to address and weigh them: R. v. D.H., 2016 ONCA 569, 351 O.A.C. 201, at paras. 37, 50, 69-71; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17.

103The reliability of a witness's evidence is a separate but related issue in assessing their credibility. As noted by Watt, J.A. in R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (Q.L.), at para. 41. Credibility focuses on a witness's veracity, while reliability concerns the witness's accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. A witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence.

104In making these assessments, a court must remember that people react to events differently. Courts must avoid stereotypical thinking about how people should or should not react to traumatic events. Courts must decide sexual assault cases "without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma": R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121.

Assessing the Evidence of an Adult Recounting an Event as a Child

105The notion that children give inherently unreliable evidence has been rejected. The judiciary is not to impose the same exacting standard on the testimony of a young child; however, this does not mean that courts should not exercise care in assessing the credibility of a child's evidence. A child's evidence does not have to be corroborated to be accepted (see R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at 54-55, and R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at 132-134).

106Generally, when an adult testifies about events that occurred when they were a child, their credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially in peripheral matters such as time and location, should be considered in the context of the age of the witness at the time the event occurred: M. (A.), at para. 11.

107A child's sense of time and dates develops as they grow older, and it is common for children to be inconsistent in their statements about when incidents of abuse occurred. When assessing a child's evidence, the court must carefully determine whether inconsistencies in their testimony are peripheral or core. Where the inconsistency does not relate to an essential element of the offence, it is less troublesome.

ANALYSIS

108Much of the evidence in this case revolved around the campfire and is not directly related to the allegations. Still, it does provide valuable insight into assessing the reliability and credibility of most of the witnesses who testified.

109I do not accept all of F. D.'s evidence and, as such, I must carefully assess the credibility and reliability of each witness. In arriving at my decision, I have taken that into account, but I will not review it all in this decision.

110If I accept L. B.'s evidence from the campfire, then it follows that F. D. was inside the cottage, alone with the children and had the opportunity to commit the assault.

111If I accept F. D., B. D., or J. D-G.'s evidence or any part or subset of their evidence, then F. D. was at the campfire that evening and was never left alone or in charge of the children asleep in the cottage.

112Unsurprisingly, the evidence of the accused's family is externally inconsistent with L. B.'s evidence. However, L. B.'s evidence is also inconsistent with the evidence of B. B. For example, B. B. testified that she only heard commotion after he had touched her. She did not hear her mother's voice. To the contrary, L. B. described a confrontation with F. D. on her way into the cottage and on the way back out. Moreover, all the witnesses described the children sleeping in the bedroom that shared a wall with the living room, where L. B. confronted F. D.

113While I find L. B. to be reliable for details around getting to the cottage, who was there, and the overall activities of the days there, I do not accept her evidence entirely on what happened following the night swim. She was moderately intoxicated that night. I accept that she was around the fire following the swim for at least the argument stages of the fight. I reject her evidence that J. disclosed to her at that time that F. D. had sexually assaulted her as a teenager, and that she entered the cottage to confront F. D. and check on B. B. The argument at the campfire, which was escalating, may have been enough for her to leave earlier, and she may have checked on B. B.

114I accept L. B.'s evidence that all the photos in Exhibit 2 were taken during that weekend in July 2008 and not from two or more visits. This finding leads me to the next, which is that she left the campfire before the fight escalated as much as it did, and that it did not result in the disclosure by J. D-G., and L. B. confronting F. D. It also leads to my findings of fact that J. D-G., B. D., and F. D. could not be entirely truthful in their evidence. Though nothing turns on it in terms of the offence before the court, I find that F. D. was at the cottage on Friday evening. This was evidenced by the photos in Exhibit 2, as well as the testimony of L. B. and J. D-G.

115Much was made of a photo in Exhibit 2 that may or may not have been a photo of F. D.'s late wife, L. D. The accused, and his two daughters who testified each say that they clearly recognize L. D. in the photo, while L. B. says she was not there and believes it was another woman, who is dressed similarly in other photos. There is no clear evidence to resolve this issue, but I find that I am not required to decide that in this case. If L. D. were there, the evidence is that she would have been sleeping in a bedroom at the cottage, which would not necessarily be an impediment to an opportunity to assault B. B. Furthermore, even if she were not there, B. D. would have been more of an obstacle to the offence than L. D.

116J. D-G. was extremely intoxicated that night. I find her evidence, overall, to be unreliable. Moreover, her evidence lacks credibility – from the way she downplayed her relationship with L. B. to the embellishments used to bolster her evidence, such as her evidence that H.'s brother and friend could not be there because the fight would have been so much worse that it would have made the news.

117Despite her level of intoxication, by her testimony being just shy of comatose, J. D-G. testified to being sure of L. B.'s whereabouts during the argument as it escalated. This person, whom she considered an acquaintance, was one of the only people she could, with absolute certainty, track through the evening. When asked about the movements or whereabouts of others that night, she admitted that it was hard to keep track of where people were.

118I accept the evidence that J. D-G. was involved in a conflict with her husband, which made their guests uncomfortable. I accept that it became physical and involved other members of her family. I reject most, if not all, details of her evidence as otherwise unreliable and not credible.

119While there are some challenges with B. B.'s evidence, I have less concern about her credibility. She testified in a reasonably straightforward manner. Her sequence of events was not consistent across statements, or her evidence-in-chief examination and cross-examination. This may be primarily explained by differences in how questions were presented to her (or not) during her statement to the police and her attendance in court. It may also be in part due to her young age in 2008. However, even taken at its highest, there are some concerns in her testimony about how the assault occurred – practically and logistically. That said, I cannot and do not reject B. B.'s evidence in its entirety.

120B. D. was sober by all accounts. I find her evidence to be generally reliable. The passage of time may have muddied the timing of events, but overall, her evidence was reliable. I have some concerns about her credibility. There are some minor inconsistencies, but she stuck closely to a strict narrative: she was with her dad the entire time he was there. Her evidence refused to allow for any opportunity for her father to be alone in the cottage while the children were sleeping – not to use the bathroom, not to speak with his wife, not for any reason. Despite that, other adults seemed to move freely into and out of the cottage.

121B. D. testified that she and her father were outside and sober when the others decided to go swimming but denied that they were asked to keep an eye on the sleeping children. Instead, her evidence is that someone woke her mother to make the request.

122Despite some concern, I cannot wholly reject her evidence. She was unshaken in her evidence that during the night swim, she and F. D. took her vehicle to Parry Sound so that her father could hear how it was running and possibly diagnose a problem she was having with the transmission.

123I reject that B. D. was, effectively, his shadow throughout the weekend, and particularly all Saturday night. Photos show B. D. socializing with others, including L. B., and in one picture, she is sitting in a tent. There is some evidence that suggests that B. D. was in a tent, but she was clear in her evidence that she did not sleep in a tent – that she would have slept in her car before choosing a tent. It is also significant that she had been residing at the cottage in July 2008. I accept that she may have given up her bedroom for another family member with a young child or for her mother if she were there.

124I do not accept all of F. D.'s evidence. I find that his evidence was tailored to ensure that he had no opportunity to be alone with the children in the cottage, where there is some evidence to the contrary. It made no sense to me that F. D. and J. G-D. were adamant that F. B. was present that weekend. There was no mention of her by B. D. as being there. I accept the evidence of L. B. and B. B. that F. B. was at a camp that cared for her special needs, which allowed them to attend the cottage. I mention this because it is another added detail that feels unnecessary, illogical, and contributes to my finding that F. D. and J. D-G. lacked credibility in their testimony.

125I reject F. D.'s evidence that he did not attend until Saturday. I accept that all the photos in Exhibit 2 were taken during that weekend in July 2008. In accepting that, it follows that F. D. was there on Friday night when it rained, as evidenced by photos taken during the rain. J. G-D. also testified that F. D. and L. D. arrived on Friday.

126I question F. D.'s evidence that he and B. D. drove to Parry Sound to get coffee at Tim Hortons while the other adults were out for their night swim, and after his late-cousin, R. P., stopped in for a visit before work. B. D. was unshaken in her evidence about this trip, but again it is convenient evidence as a block to opportunity.

127I question F. D.'s evidence about the sleeping arrangements in the living room – that he and B. D. both slept on opposite ends of a large sectional couch. B. D.'s evidence is somewhat inconsistent with his testimony – she maintains they both slept in the living room, but on different sofas.

128I reject much of F. D.'s evidence and as such, I must move onto the second and third prongs of W.(D.). It matters not whether I am left with a reasonable doubt by the defence evidence that I do accept, or I find that there is not sufficient evidence to prove the case beyond a reasonable doubt – in either circumstance, the presumption of innocence prevails, and I must acquit him on the charge before me.

129F. D. and B. D.'s evidence combined raise some doubt. L. B.'s evidence is unhelpful in proving the elements of the offence as I reject her narrative of that night in relation to the fight at the fire and confronting F. D., which, as noted, was inconsistent with B. B.'s evidence of not hearing her mother's voice at all, and not hearing a commotion until after her mom woke her.

130B. B.'s evidence is challenging. While I may be able to find that it may, or even probably, happened, I can not find that her evidence, considering the whole of the evidence at trial, is sufficient for the very high burden of proof beyond a reasonable doubt.

131As such, I find that the Crown was not able to meet the high burden of establishing the case beyond a reasonable doubt, and as such, I find the accused not guilty on the charge of sexual interference.

Bellows, J.

Released: September 5, 2025