WARNING
The court hearing this matter orders that the following notice be attached to the file:
The publication ban in this proceeding, pursuant to sections 486.4(1), (2), (2.1), (2.2), (3) or (4) or pursuant to sections 486.6(1) or (2) of the Criminal Code, is maintained. These provisions of the Criminal Code provide as follows:
486.4(1) Subject to subsection (2), the judge or justice presiding may make an order prohibiting the publication or broadcasting in any way of any information that could identify the victim or a witness in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347,
(ii) an offence under this Act, in any earlier version of this Act, in the case where the act complained of would constitute an offence under subparagraph (i) if it were committed at that time or after that time;
(b) two or more offences in the same proceeding, at least one of which is an offence referred to in paragraph (a).
486.4(2) In proceedings in respect of an offence referred to in paragraphs (1)(a) or (b), the judge or justice presiding shall:
(a) as soon as feasible, inform any witness under the age of eighteen years and the victim of their right to make an application for the order; and
(b) on application made by the prosecutor, the victim or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), the judge or justice presiding may make an order prohibiting the publication or broadcasting in any way of any information that could identify the victim who is under the age of eighteen years in proceedings in respect of any offence other than those referred to in subsection (1).
486.4(2.2) In proceedings in respect of any offence other than those referred to in subsection (1), the judge or justice presiding shall, if the victim is under the age of eighteen years:
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application made by the prosecutor or the victim, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, the judge or justice shall make an order prohibiting the publication or broadcasting in any way of any information that could identify a witness who is under the age of eighteen years or any person in respect of whom the representation, written material or recording that is alleged to constitute child pornography within the meaning of that section, was made.
486.4(4) An order made under this section does not apply to the disclosure of information in the course of the administration of justice if the disclosure is not made for the purpose of informing the public.
486.6(1) Every person who contravenes an order made under any of subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) It is understood that the orders referred to in subsection (1) also apply to the prohibition, in proceedings for contravention of these orders, of the publication or broadcasting in any way of any information that could identify the victim, witness or person associated with the justice system that the order is intended to protect.
REFERENCE
R. v. D. L., 2025 ONCS 5197
COURT FILE NUMBER: CR-2024-13
DATE: September 12, 2025
SUPERIOR COURT OF JUSTICE OF ONTARIO
PARTIES
Between:
HER MAJESTY THE KING – and – D. L.
Counsel:
Ninetta Caparelli, for the Crown
Dominique Roy, for the Accused
Heard: June 23-26, 2025
REASONS FOR JUDGMENT
The Honourable Justice Brian Holowka
I. OVERVIEW
[1] A.Q.-G. and K.B. are two sisters. They are currently aged 15 and 13 years respectively. They allege that the uncle of their mother's boyfriend, D.L., touched them sexually on multiple occasions at their home between 2015 and 2018. He allegedly committed these acts in various places in the family home, including the basement, the living room/dining room, and an upstairs bathroom. He allegedly used a purple hand-held vibrating massager to commit these acts. These incidents allegedly occurred during brief periods when other family members were present or nearby.
[2] The indictment against D.L. lists the following charges:
That the said D.L. is accused of having:
Between January 1, 2015 and April 30, 2017 inclusive, at Hawkesbury or elsewhere in Ontario, committed sexual assault against K.B. contrary to section 271 of the Criminal Code.
Between January 1, 2015 and April 30, 2017 inclusive, at Hawkesbury or elsewhere in Ontario, committed sexual assault against A.Q.-G., contrary to section 271 of the Criminal Code.
Between January 1, 2015 and April 30, 2017 inclusive, at Hawkesbury or elsewhere in Ontario, touched directly or indirectly K.B., a person under the age of 14 years, with a part of his body or with an object, contrary to section 151(a) of the Criminal Code.
Between January 1, 2015 and April 30, 2017 inclusive, at Hawkesbury or elsewhere in Ontario, touched directly or indirectly A.Q.-G., a person under the age of 14 years, with a part of his body or with an object, contrary to section 151(a) of the Criminal Code.
[3] The trial took place from June 24 to 26, 2025. The indictment was amended with the consent of the accused on the second day of trial to extend the dates covered, so that the period in question now begins on January 1, 2015 and ends on December 31, 2018, both dates inclusive. The amendment has no material impact on the issues raised at trial.
[4] The Crown filed a motion regarding similar fact evidence concerning the testimony of both complainants. The parties agreed that it was appropriate for me to hear submissions on the similar fact evidence motion and the trial simultaneously, and that I render a decision on both together.
[5] The credibility of the complainants is not in issue. The Crown submits, and the defence agrees, that they testified honestly and answered questions clearly. The main issue at trial is the reliability of the complainants' testimony and whether the Crown has proven D.L.'s guilt beyond a reasonable doubt. To resolve this matter, the admissibility of the proposed similar fact evidence is an important factor.
II. THE EVIDENCE
A. Family Background
[7] The family of A.Q.-G. and K.B. consisted of their mother, A.B., their stepfather, S.L., and their brother M.B. During the period covered by the indictment, the family resided in Hawkesbury, Ontario.
[8] A.B. began dating S.L. in 2013. At that time, A.Q.-G. was 5 years old and K.B. was 1 year old. Both A.Q.-G. and K.B. stated that they considered S.L. to be their father at the time of the alleged acts. He was the only father figure they had ever known.
[9] Both A.Q.-G. and K.B. stated that these allegations and the legal proceedings had caused significant family tensions, and that neither of them would now consider S.L. to be their father. Both stated that S.L. did not believe the allegations were true and that this had created a rift in the family. K.B. continues to live with her mother and S.L., which is difficult.
[10] The accused, D.L., is S.L.'s uncle. He visited the family frequently, sometimes several times a week. These visits typically occurred at the end of the workday, and D.L. would stay for dinner. He sometimes brought takeout Chinese food and, on rare occasions, took the family to a Chinese restaurant in Hawkesbury.
[11] D.L. also regularly visited the family home to do his laundry in the basement laundry room.
[12] A.Q.-G. stated that she considered D.L. to be her uncle. He had been part of her life for as long as she could remember. She remembered D.L. coming to dinner at the family home, but A.Q.-G. also mentioned that the family often went to the Chinese restaurant with D.L.
[13] A.Q.-G. confirmed that she knew, in August 2023, that D.L. was facing 12 criminal charges unrelated to this matter and that she understood this was why the child welfare society wanted to speak with her and her siblings. She explained that she did not know the details of these allegations, only that he was accused of touching other young girls. She felt this information had not influenced her testimony.
[14] A.Q.-G. stated that D.L. lived at the family home during part of the period when the alleged incidents occurred. While he lived with them, he was unemployed and spent most of his time at their home. The surveillance behavior observed by A.Q.-G., whereby S.L. monitored D.L. at the family home, was according to her due to the prior criminal charges. She also stated that both her parents were home most of the time during the period covered by the allegations, as neither had outside employment.
B. Disclosure of Allegations
[15] In 2023, A.Q.-G. was taken in by A.S.S. and S.S. under a family agreement made in partnership with the local child welfare society. A.Q.-G. lived with them and was in a relationship with A.S., the son of A.S.S. and S.S.
[16] On August 12, 2023, A.Q.-G. and A.S. had an argument. A.S.S. suggested to A.Q.-G. that she return to live with her mother to give the couple some space. A.Q.-G. refused to return to her mother's home and, later that day, she told her mother and A.S.S. that D.L. had touched her sexually.
[17] A.S.S. reported this information to the child welfare society and called 911.
[18] A.Q.-G. had previously informed her boyfriend A.S. that her stepfather's uncle had assaulted her, but she did not disclose this to an adult until August 12, 2023.
[19] Police interviewed A.Q.-G. and K.B. on August 12, 2023 at A.S.S.'s home. A.B., the mother, was present during A.Q.-G.'s interview, while K.B. waited outside the home.
C. Testimony of A.Q.-G. Regarding the Allegations
1. General Information
[20] A.Q.-G. remembered that D.L. had nicknames such as "Uncle Duck" or "Tattoo". In response to a somewhat suggestive question, she confirmed that she and her sister also called him "Uncle Candy" because he gave her candy when he was not supposed to. He hid candy for her in the bathroom or in the bedroom she shared with her sister. D.L. also slipped candy to her under the table.
[21] D.L. also provided A.Q.-G. with makeup and asked her to hide it and make herself "pretty-pretty". She mentioned that her mother was not aware of the makeup. She and her sister were not allowed to wear makeup. A.Q.-G. stated that she found D.L.'s gifts unusual, as she had never felt special before.
[22] A.Q.-G. stated that she was often sexually touched by D.L. in the family home, including in the living room and dining room on the ground floor, in her bedroom on the first floor, in the basement, and in the yard. She stated that this behavior began when she was five or six years old. She described how D.L. placed his hands on her thighs and vagina.
[23] The ground floor of the family home was open, with no walls separating the living room, dining room, and kitchen. For example, from the dining table, one could see the couch in the living room. Most of these incidents occurred in the presence of other people, for example when she was sitting on the couch or during meals, but she thought no one saw what was happening. Regarding the incidents on the couch, she explained that in summer, S.L. always kept the air conditioning on and A.Q.-G. was cold, so she covered herself with a small cloth, thus masking what the accused was doing.
[24] She stated that there had been more than two incidents, but she does not remember if it happened more than five times. These incidents made her "uncomfortable" and made her "uneasy". She recounted pushing D.L.'s hand away and asking him to stop, but he always responded that it was okay and told her "let me do it".
[25] She remembered that, around the age of 6 or 7, when D.L. hugged her, he placed his hands on her breasts and buttocks. This made her uncomfortable and she constantly pushed his hands away.
[26] A.Q.-G. stated that the first incident occurred when she was approximately five or six years old. The last incident occurred when she was 11 years old.
[27] A.Q.-G. stated that she had repressed many things.
2. Testimony Regarding Incidents on the Living Room Couch
[28] Regarding the incidents on the couch, A.Q.-G. explained that her mother, stepfather, sister, and brother were sitting nearby at the dining table when D.L. touched her. She recounted pushing his hand away and asking her mother to switch places with her. She remembers D.L. touching her genitals both over and under her clothes while she was sitting on the couch. In her testimony, she did not initially remember D.L. penetrating her with his fingers on the couch, but she later stated that he had done so once when she was ten years old.
[29] She explained that D.L. sometimes used a device, which he claimed was intended to relieve his back pain, to touch her. She described it as a "purple stick". He would activate it, making it vibrate, then place it on her genitals or buttocks. She described the length of the object by comparing it to a 500 ml water bottle. Its length reached the lower part of the label, halfway up the bottle. Its circumference was similar to that of a two-dollar coin. She remembered that the device was silent. At age twelve, she explained that she understood the device was a vibrator.
[30] She described in detail an incident on the couch. A.Q.-G. remembers watching a movie called "Air Bud" which tells the story of a dog that plays basketball. She was on the couch, covered with a blanket. K.B. and M.B. were sitting on the couch, while her mother and stepfather were at a nearby table. D.L. penetrated her with his fingers while she was on the couch. She found this upsetting and immediately got up. She described feeling confused and not knowing what to do. She stated that the incident had been devastating and had a significant impact on her. She explained that she had only recently remembered this trauma, which had resurfaced after being repressed. She stated that she suffered from mild depression and that a memory flash had shaken her and allowed her to see everything clearly. She explained that this had been triggered by seeing D.L.'s photo on Facebook and that she had not seen D.L. since she was 12 or 13 years old.
[31] A.Q.-G. confirmed that she was almost certain that one or both of her parents were present at the nearby dining table when the touching occurred on the couch — they spent a large part of their lives at that table. She did not think they heard the vibration of the purple stick or that she told him to stop.
3. Testimony of Incidents at the Dining Table
[32] A.Q.-G. stated that D.L. often touched her at the table. D.L. came to the house three to four times a week and stayed for dinner. At the table, in the presence of other people, he touched her at the genitals, over her clothes. He did this under the table, out of sight of family members present. A.Q.-G. could not say how many times she was touched at the table by D.L.
[33] Once, at the table, D.L. used the purple stick to touch her genitals in the presence of other people. She explained that the purple stick made no noise, so no one heard it.
[34] She acknowledged having stated at the preliminary hearing that the purple stick had made a slight noise, but that no one had heard it, even though there was no other noise in the room except for the people sitting at the table.
4. Testimony of Incidents in the Bedroom
[35] In addition to the incidents in the living room and dining room on the ground floor, A.Q.-G. described incidents that occurred upstairs in the bedroom when she was 8 or 9 years old. She explained that she could be playing, reading, drawing, or sleeping. The incidents were not limited to a specific time of day, but occurred when D.L. went upstairs to use the toilet.
[36] She recounted that D.L. came to see her while she was playing in her room, which she shared with her sister. She remembers D.L. telling her to get up or close her eyes, and then he touched her. She obeyed D.L.'s instructions because he was an adult.
[37] She stated that there had been two incidents and she did not remember if there had been others.
[38] She remembered in detail an incident that had occurred in her room. A.Q.-G. remembered taking an afternoon nap when D.L. went upstairs to use the toilet. Upon waking, D.L. was beside her and was touching her vagina with his fingers, but she did not remember if he was doing it over or under her clothes. She estimated that the incident lasted between one and two minutes, explaining that S.L. was always watching D.L.
[39] A.G-Q. stated that these incidents frightened her and made her feel uncomfortable and embarrassed. She spoke to D.L. about them, and he told her it was "okay" and continued to give her candy and makeup.
5. Testimony of Incidents in the Basement
[40] A.Q.-G. stated that two incidents had occurred in the basement, which was quite open and offered a clear view. The basement included a laundry room, a children's play area with a television, and S.L.'s office with a tattoo bed. She watched VHS videos in the basement.
[41] A.Q.-G. testified about only one incident involving her in the basement. She remembers that when she was seven or eight years old, she was watching a movie when D.L. joined her. He was on the phone, put it down, then ran his hands over her thighs over her clothes, while telling her she was pretty. He touched her buttocks. She remembers pushing his hand away and going upstairs.
[42] A.Q.-G. also stated that she saw, at about the same time, D.L. touching K.B. in the basement. She explained that K.B. and D.L. were in the basement when she came down to play with her sister. She saw K.B. and D.L. in front of the television watching a movie. They were visible from the stairs. D.L. was touching K.B.'s vagina with the purple stick. A.Q.-G. came down, told D.L. to stop, hit his hand, and went back upstairs with her sister.
[43] A.Q.-G. stated that she and K.B. had not really discussed it at that time. She only asked K.B. if she was okay, and K.B. said yes. After the incident, A.Q.-G. and K.B. played together upstairs.
[44] A.Q.-G. stated that she remembered only one incident in the basement. At another point in her testimony, she stated that it happened between one and two times, but she only remembers one incident.
6. Testimony of Incidents in the Yard
[45] A.Q.-G. stated that the incidents in the backyard occurred "pretty much all ages from around six to ten years old." She stated that she liked to play in the backyard making potions or mixtures of sand and grass. She played in the backyard with K.B. and M.B. and D.L. came to play with them. He gave them candy and smoked a cigarette.
[46] She described a specific incident in which D.L. hugged her in the yard and touched her lower back. She pushed his hand away and he stopped. She continued to play. She stated that S.L. was present at that time.
[47] Another time, she remembers sitting at a small plastic table, busy making a potion made of grass, sand, and flower petals. D.L. came into the yard to smoke a cigarette. He asked her to close her eyes, which she did. A.Q.-G. recounted that D.L. had lifted the back of her dress and touched her lower back. D.L. told her "it's okay" and asked her if she liked it or if it felt good. She pushed his hand away and went back inside without responding.
[48] Furthermore, she remembered an incident that had occurred in the yard while K.B. was present. K.B. was playing with her bike while she was making her potions. A.Q.-G. described D.L. coming out to smoke a cigarette. She remembered D.L., with a cigarette in his hand, coming to hug her and touching her breasts. She told K.B. to come inside with her, and they did. She did not remember if D.L. said anything at that time.
[49] A.Q.-G. did not remember if there had been other incidents outside the house in the yard.
7. Testimony of the Incident at the Chinese Restaurant
[50] A.Q.-G. stated that a sexual touching incident had occurred at a Chinese restaurant located on Main Street in Hawkesbury, when she was approximately seven or eight years old. Her mother, stepfather, brother, sister, D.L., and her aunt M. were present at the restaurant.
[51] She remembers needing to go to the toilet while at the restaurant, and D.L. offered to accompany her. She remembers there being separate toilets for men and women, and they entered their respective toilets. She stated that she was in the women's toilet washing her hands when D.L. entered and touched her vagina with his hand under her dress, but over her underwear. She did not remember if there were other people in the toilet at that time. The incident lasted between 30 seconds and one minute. A.Q.-G. stated that it had been quick because S.L. was watching D.L. closely when he went down to the toilet.
8. Testimony of an Incident Outside Ontario
[52] A.Q.-G. remembered an incident that occurred outside Ontario. She stated that while she was at her aunt's home in Trois-Rivières, D.L. had embraced her and touched her breasts and buttocks when she was 11 to 12 years old. It should be noted that I did not take this evidence into account in this trial. It played no role in my reasoning.
D. Testimony of K.B. Regarding the Allegations
1. General Information
[53] K.B. was born on March 18, 2012. At the time of trial, she was 13 years old. She was to enter 8th grade in September 2025. She testified after promising to tell the truth.
[54] She described her relationship with D.L. as being good when she was younger. She remembers them talking and playing together. She called D.L. "uncle", but knew that others called him by the nickname "Tattoo". When the Crown prosecutor asked her if "Uncle Candy" had a particular meaning for her, K.B. responded that when they were younger, they called D.L. by that nickname because he often gave them candy.
[55] She remembered that D.L. was always at their house. He generally stayed on the ground floor with S.L., his stepfather. He only went to the basement to do his laundry.
[56] K.B. remembered three incidents: two in the basement and one in the upstairs toilet.
2. Testimony of Incidents in the Basement
[57] K.B. testified that when she was approximately three or three and a half years old, D.L. had sexually touched her in the basement while he was doing his laundry. She said she was scared and found it inappropriate.
[58] K.B. explained that D.L. had touched her vagina through her clothes with a purple stick that could vibrate. He touched her vagina with the purple stick for less than 60 seconds. She described the stick using the same terms as A.Q.-G.: the circumference of a two-dollar coin and the length of a 500 ml water bottle just below the label.
[59] She remembered two occasions when D.L. had sexually touched her while he was doing his laundry. She does not remember how he approached her or if he said anything before touching her. These incidents occurred in the basement, just in front of the washing machine and dryer. (K.B. also described a third incident in front of the television, during which D.L. took out the purple stick, but did not use it, and S.L. told him to go back upstairs to the residence.)
[60] She did not remember anyone coming to the basement during the two alleged sexual touching incidents, unlike A.Q.-G.'s testimony, which stated that she had intervened on one occasion. Similarly, K.B. did not remember sexual touching in front of the television, unlike A.Q.-G.'s testimony.
[61] She stated that D.L. had mentioned once that it was a game and that she should not tell her parents. K.B. stated that she did not feel, at that time, that it was really a game.
3. Testimony of an Incident in the Toilet
[62] K.B. stated that D.L. had sexually touched her in the upstairs toilet when she was the same age as during the basement incident.
[63] Although the house rules required knocking before entering the bathroom, on the day of the incident, K.B. did not knock, as she thought her mother was inside.
[64] She remembers D.L. being in the toilet standing up and fastening his pants belt. K.B. apologized to D.L. He asked her if she needed to urinate, to which she answered "yes". He told her she could come in. D.L. lowered the toilet seat and took out the purple stick to touch her genitals. She stated that her pants were not lowered and she did not remember if the purple stick was vibrating.
[65] K.B. stated that she did not remember, but she did not believe he had touched her with anything else.
E. Testimony of A.B.
[66] A.B. is the mother of A.Q.-G., K.B., and M.B. She is in a relationship with S.L., D.L.'s nephew.
[67] A.B. stated that she had a good relationship with D.L. before these allegations became public.
[68] Initially, D.L. came once or twice a week, but this frequency increased, especially after he moved nearby. He did his laundry at their place several times. A.B. stated that D.L. came regularly and stayed for dinner. Sometimes he brought takeout Chinese food for the family. They rarely went to the nearby Chinese restaurant as a family, and it was even rarer to go with D.L., but it was a possibility.
[69] A.B. testified about how the allegations were revealed on August 12, 2023. Since then, this subject has been difficult for the family to address. No one really talks about it.
[70] During the period covered by the indictment, A.B. and S.L. were not employed and stayed home most of the time. She stated that she spent most of her time with the girls. She specified that she and S.L. were always home and that the children were never left alone with D.L. If she had to go out to run errands or for other reasons, the children stayed with S.L.
[71] A.B. stated that she knew D.L. suffered from back problems, but did not know the details. D.L. had told her and S.L. that he owned a back massage device, but she had never seen it. D.L. had mentioned that he kept it in his pocket.
[72] A.B. stated that the ground floor of their home was an open space, with no separation between rooms such as the kitchen and living room.
[73] A.B. remembered that when A.Q.-G. was younger, she tended to fall asleep on the couch. She had never heard A.Q.-G. tell D.L. to stop doing something while she was sleeping on the couch, but she remembered A.Q.-G. telling D.L. to stop tickling her once while she was watching television.
[74] She stated that people generally sat in the same place at the table. She did not remember A.Q.-G. sitting on her lap during dinner, except if she was not feeling well, but she acknowledged that it was possible.
[75] A.B. stated that they had gone to the Chinese restaurant with D.L. and S.L.'s sister only once. She testified that the basement of the Chinese restaurant had separate toilets for men and women.
III. THE SIMILAR FACT EVIDENCE MOTION
A. Legal Issues and Applicable Law
[76] The Crown requested that the testimony of each complainant be admitted as similar fact evidence to support its argument regarding the other complainant. The evidence whose admission is sought falls within the scope of the allegations set out in the indictment.
[77] The law governing this motion is set out in R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56. In this decision, the Supreme Court of Canada reaffirmed that evidence of prior discreditable conduct, or of a propensity or disposition, may be relevant to the crime charged, but is generally inadmissible because its low probative value is ultimately outweighed by its highly prejudicial effect. The presumption is that evidence of prior discreditable conduct is inadmissible.
[78] In the cases of Handy and R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58, the Supreme Court of Canada reaffirmed that similar fact evidence, or evidence of prior discreditable conduct, is admissible only when the Crown establishes, on a balance of probabilities, that the probative value of the evidence outweighs its prejudicial effect. The Court noted at paragraph 41 of Handy that "in the context of the trial of the offence charged, there may be a question in respect of which evidence of prior misconduct may be so relevant and compelling that its probative value in the search for truth outweighs any possibility that it will be misused." The Court summarized the admissibility criterion as follows at paragraph 55:
Similar fact evidence is therefore presumed inadmissible. It is for the Crown to persuade the trial judge, on a balance of probabilities, that, in the context of the case at bar, the probative value of the evidence on a given issue outweighs the prejudice it may cause and thus justifies its reception.
[79] In Handy, the Supreme Court provided further guidance on the application of this criterion in cases where the Crown intends to rely on evidence to establish issues other than identity. The framework for analysis proposed by the Supreme Court is as follows. First, probative value can be assessed as follows:
a. By considering the strength of the probative force of the similar fact evidence, including the extent to which such evidence can be demonstrated and any allegation of collusion. In particular:
i. Where allegations of collusion appear "plausible", the trial judge must be satisfied, on a balance of probabilities, that the similar fact evidence is not "tainted by collusion"; and
ii. Similar fact evidence "could be too prejudicial to be admitted unless the judge was satisfied that it met the preliminary criterion that it could reasonably be believed."
b. By identifying the "issue in question". If evidence of prior discreditable conduct "is not properly capable of supporting the conclusions sought by the Crown, generally the analysis need not proceed further";
c. By identifying the factors that link the similar fact evidence to the facts alleged in the charge or distinguish them from those facts, and the degree of similarity required to make the proposed evidence admissible. These "linking factors" may include, but are not limited to:
i. temporal proximity of the similar acts;
ii. the extent to which the other acts resemble in their details the conduct charged;
iii. the frequency of the similar acts;
iv. the circumstances surrounding or relating to the similar facts;
v. any distinctive feature common to the episodes;
vi. subsequent facts; and
vii. any other factor capable of supporting or refuting the underlying unity of the similar acts. [Handy at para. 82]
[80] When the issues to which the evidence may relate do not include the identity of the perpetrator, with respect to the degree of similarity required in the evidence, the Supreme Court in Handy considered at paragraph 78 that:
It is not that, in such a case, the degree of similarity must be higher or lower than in an identification case. What I am saying is that the question is different, and the sources of probative force as to the desired inferences will therefore be different. As Justice Grange correctly noted 20 years ago in R. v. Carpenter, 142 D.L.R. (3d) 237 (C.A. Ont.), at p. 244:
The degree of required similarity depends on the issues in question in the case at bar, the purpose for which the evidence is tendered and the other evidence in the case.
[81] In examining the difference between evidence of general propensity, which is always inadmissible, and evidence of specific propensity, which may be admissible, the Supreme Court also noted, at paragraph 87 of Handy, that "the probative force of the evidence increases as the factual situation moves closer to the end of the range where the evidence is more specific."
[82] Once the probative value of the evidence has been assessed, its prejudicial effect must be examined. Handy confirms that with respect to the issue of prejudice, the potential prejudice to the accused is assessed by considering moral prejudice and reasoning prejudice. Moral prejudice to the accused refers to the risk of convicting the accused because he is a "bad person", rather than on the basis of evidence that he committed the offence charged before the court. Reasoning prejudice refers to the risk of distracting or misleading the trier of fact, or causing unnecessary loss of time, as well as the danger that the jury will have difficulty distinguishing the subject matter of the charges from evidence of prior conduct discrediting the accused: Handy, at para. 83, R. v. Shearing, at paras. 38-74.
B. Position of the Parties
[83] The Crown submits that the request to admit similar fact evidence should be accepted, as the probative value of such evidence outweighs its prejudicial effect. The Crown highlights the similarities between the two accounts:
a. The family context of the alleged behavior;
b. The use of the nickname "Uncle Candy";
c. The behavior of D.L. towards both complainants, which can be characterized as "grooming";
d. The similar alleged sexual touching behavior; and
e. The use of the purple stick/vibrator.
[84] The Crown submits that any potential prejudice is limited, as the trial is before a judge alone. The Crown also relies on R. v. J. H., 2018 ONCA 245 to argue that in the particular context of similar fact evidence admitted "count-by-count", moral and reasoning prejudice are significantly reduced because the evidence is admissible anyway, regardless of its quality as similar fact evidence.
[85] With respect to the issue of possible collusion, the Crown submits that this possibility is purely speculative and is not demonstrated by the evidence.
[86] The Crown submits that the evidence is relevant for the following reasons:
a. To prove the actus reus;
b. To establish motive;
c. To establish that the respondent has an attraction to young girls;
d. To establish context or factual framework and contextualize the relationship between the parties;
e. To establish the credibility of the complainant by arguing that the allegations are improbable;
f. To refute the claim of recent fabrication or implausibility;
g. To establish that the respondent had the specific propensity to exploit his status with the complainants by engaging in inappropriate sexual behavior with vulnerable women in his circle; and
h. To establish a modus operandi.
[87] D.L.'s counsel submits that the proposed similar fact evidence should not be admitted, as it does not present a sufficient degree of similarity to justify admission as "count-by-count" similar fact evidence. Furthermore, defence counsel submits that there is a real possibility of collusion in this matter.
[88] I now turn to the application of these principles to the facts of this case.
C. Discussion
[89] As stated in Handy, at paragraph 102, "the question at this stage is whether the similar fact evidence is really probative enough to warrant … making the … inferences advocated by the Crown". Handy directs the examination of the various elements of evidence under this heading.
1. The Risk of Collusion
[90] The issue of collusion is explicitly raised by the accused. Similar fact evidence has no probative value if the similarities between the two sets of allegations exist because the complainants agreed to provide similar evidence. In such cases, the similarities would be attributable to evidence contamination resulting from the sharing of information. If there is collusion, it destroys the foundation on which admissibility rests. See Handy, at para. 110 and Shearing, at paras. 40-41.
[91] Collusion can be conscious or unconscious. In this context, conscious collusion often refers to a secret agreement to manipulate the law or the justice system to deceive a court. Collusion can also be unconscious: it can result from communication between witnesses that influences and shapes their respective descriptions of the contested events. See R. v. M. (J.), 2016 ONSC 1615, at paras. 45-56, and Handy, at paras. 40-41. Conscious and unconscious collusion are treated the same way at the admissibility determination stage.
[92] Unconscious collusion can occur during a conversation, leading to the implantation of false memories that override independent memories. It is of course inevitable that, when witnesses know each other in the context of a criminal proceeding, they may speak to each other about the matter or discuss what happened immediately after the alleged facts. In assessing this factor, I must be cautious before hastily concluding that a witness is no longer independent and has been influenced by unconscious collusion simply because of a conversation.
[93] Evidence of the opportunity for collusion would be taken into account in the assessment of the evidence rather than in that of its admissibility. When an allegation of collusion appears plausible, it is the Crown's burden to refute collusion on a balance of probabilities. If there is evidence of actual collusion, conscious or unconscious, the Crown must prove, on a balance of probabilities, that the evidence is not tainted. In the present case, when I examine the appearance of collusion or actual collusion, only unconscious collusion is considered. There is no suggestion of conscious collusion. I am satisfied that A.Q.-G. and K.B. sincerely believe, to the extent their memory allows them to remember, that they have not shared any details of the offence.
[94] The issue of communication and potential collusion was raised several times in A.Q.-G.'s testimony:
a. A.Q.-G. stated that she had spoken once to her sister about the touching committed by D.L. She specified that she was approximately 9, 10, or 11 years old at the time. This occurred shortly before Valoris, the local child welfare society, asked to speak with them. She explained that her parents did not want them to tell Valoris that she and her sister had seen D.L. or were seeing him in a social setting. When she and K.B. discussed it, they decided they were not ready to reveal what had happened.
b. A.Q.-G. also stated that she and her sister had discussed after A.Q.-G.'s intervention in the basement, while D.L. was touching K.B. She stated that they did not go back over what they had seen. Similarly, A.Q.-G. stated that K.B. had not explained to her what D.L. had done to her.
c. A.Q.-G. stated that she had encouraged K.B. to tell their mother what D.L. had done, but this encouragement was not specifically related to the basement incident where A.Q.-G. stated she had intervened.
d. A.Q.-G. confirmed that K.B. had told her several times that she found D.L. strange. A.Q.-G. did not remember asking her what she meant by that, but stated that it was impossible that she had asked her for clarification. She stated that she had only asked her if she was okay.
e. A.Q.-G. initially stated that she had not spoken to K.B. about the matter between the preliminary hearing and the trial. When questioned during cross-examination, she then stated that she had vaguely spoken with K.B. about the matter between the preliminary hearing and the trial: they exchanged their impressions about the procedure, and K.B. asked her if she was ready to go through with the trial. A.Q.-G. stated that they had not discussed the details of the allegations.
[95] K.B. also testified about communication between her and A.Q.-G.:
a. K.B. stated that she had spoken to her sister about the situation when she was four or four and a half years old. She said that D.L. was no longer touching her at that time. She remembers they were in their shared bedroom. She does not remember who started the conversation, but remembers that they talked about what D.L. was doing to them. She does not remember everything they said and repeated that they had talked about what D.L. had done to them.
b. When asked if they had discussed the details of D.L.'s actions in detail, K.B. stated that she did not remember, but she did not think so — she thought they had simply asked each other if he was doing the same thing to each of them. She did not remember how the subject had been brought up between them.
c. K.B. stated that she and A.Q.-G. had discussed the situation between the preliminary hearing and the trial to see if they were doing the right thing, but they had not addressed the details of the allegations.
d. K.B. stated that A.Q.-G. had never spoken to her to encourage her to tell her mother what D.L. had done. She stated that A.Q.-G. had never spoken to her about the facts related to the incidents, except during the August 2023 incident, when A.Q.-G. had refused to come home. K.B. explained that on that occasion, A.Q.-G. had said the following: "And that's when she said that D.L. had touched us in the basement, in fact, and that every time she went downstairs, it reminded her of that."
[96] I am satisfied that the evidence establishes the appearance of plausibility of an allegation of collusion. K.B.'s testimony establishes that she and A.Q.-G. spoke about the events when she was between four and four and a half years old. Although her memories are vague and she does not remember everything that was said, she remembers that they talked about what D.L. was doing to them.
[97] Although K.B. generally denies having discussed the details of what D.L. allegedly did to them, this contradicts the fact that she does not precisely remember the conversation. I find it inconsistent to claim, at the same time, that she does not remember the details of the conversation and that it would have been impossible for them to have discussed the matter in detail. Her memory that they only asked each other if D.L. was engaging in certain acts does not match her lack of understanding of what they were discussing.
[98] A.Q.-G.'s testimony establishes that she spoke about the events with K.B. Although A.Q.-G. is not certain, she stated in her testimony that she thought they had not discussed the details of D.L.'s behavior. This stated belief is in contradiction with what she remembers, namely that they asked each other if D.L. had committed acts against the other. This necessarily implies a certain degree of understanding of what was happening.
[99] Having concluded that there is substance to the allegation of unconscious collusion, I must determine whether the Crown has refuted collusion on a balance of probabilities. I recognize that it is difficult to assess the testimony of A.Q.-G. and K.B. due to their young age at the time of the facts and the time elapsed between the facts and the trial. The testimony of A.Q.-G. and K.B. concerning their mutual communications about D.L.'s behavior is uncertain and inconsistent, but it demonstrates that they communicated about the facts.
[100] I have also taken into account the fact that some of their testimony regarding the events is identical. For example, both described the length and circumference of the purple stick that D.L. allegedly possessed and used, using exactly the same terms: a two-dollar coin for the circumference and the label of a 500 ml water bottle for the length.
[101] On the basis of the evidence, on a balance of probabilities, I do not conclude that their communications were general in nature and lacked details. They communicated on multiple occasions, occasions on which the details of what D.L. allegedly did were shared.
[102] I conclude that the Crown has not refuted collusion on a balance of probabilities. It cannot be said that the Crown has discharged its burden on a balance of probabilities that the evidence in question is not tainted by collusion. It is quite possible that the complainants heard about specific allegations made by the other complainant and forgot about this disclosure.
[103] As the Supreme Court stated in Shearing, at paras. 40 and 41, "[t]he theory of similar fact evidence rests largely on the improbability of coincidence. Collusion, by offering another explanation for the 'coincidence' of evidence from different witnesses, destroys their probative value and, therefore, the foundation of their admissibility". In light of my conclusion regarding unconscious collusion, the probative value of the similar fact evidence is destroyed, and with it, its admissibility.
[104] The request to admit the similar fact evidence "count-by-count" is rejected.
IV. ANALYSIS
A. General Principles
1. Burden and Standard of Proof
[105] My task as the trier of fact is to determine whether the evidence presented at this trial proves D.L.'s guilt on the charges against him beyond a reasonable doubt.
[106] The Supreme Court of Canada has explained that a reasonable doubt is not an imaginary or frivolous doubt, nor a doubt based on sympathy or prejudice, but a doubt based on reason and common sense, which logically flows from the evidence or absence of evidence. It is not enough for me to conclude that D.L. is probably guilty of the charge against him. Although I need not be absolutely certain of his guilt, "the standard of reasonable doubt to a jury is to explain that it is closer to absolute certainty than to proof on a balance of probabilities": R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.
[107] In short, to find D.L. guilty of one or more of the offences charged against him, I must be satisfied, on the basis of all the evidence presented to me and duly taking into account the absence of evidence, that he committed all the essential elements of the offence in question.
2. Essential Elements of the Crimes Charged
a) Sexual Assault
[108] D.L. is charged with one count of sexual assault and one count of sexual touching against each of the complainants.
[109] As noted by Justice Major in R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paragraph 23:
To convict an accused of sexual assault, two essential elements must be proved beyond a reasonable doubt: that he committed the actus reus and that he had the required mens rea. The actus reus of assault consists of unwanted sexual touching. The mens rea is the intention to engage in the touching of a person, knowing that the person does not consent, by reason of the person's words or conduct, or being reckless or wilfully blind as to whether or not the person consents.
[110] A "sexual touching" is a touching that is objectively sexual in nature "in a manner that violates the sexual integrity of the victim": R. v. Chase, [1987] 2 S.C.R. 293 at para. 11. There is no doubt in this case that the specific touching alleged by A.Q.-G. and K.B. was objectively sexual in nature.
[111] Furthermore, A.G-Q. and K.B. allege that the touching they complain of occurred when they were respectively 6 to 10 years old and 3 to 4 years old. This would place the alleged incidents between the dates specified in the indictment, at a time when the legal age of consent, as provided in section 150.1(1) of the Criminal Code, was 16 years. Therefore, the question of whether A.Q.-G. or K.B. consented to the alleged touching is not relevant to the actus reus.
[112] Furthermore, since D.L. was S.L.'s uncle, the father figure of A.Q.-G. and K.B., D.L. would have known the age of A.Q.-G. and K.B. Any subjective belief he may have had that they consented to being touched sexually is also not relevant to determining whether he had the required criminal intent (mens rea).
[113] The real issue in this case is whether the totality of the evidence establishes beyond a reasonable doubt that D.L. touched A.Q.-G. or K.B. in a sexual manner.
b) Sexual Touching
[114] The crime of sexual touching has several elements.
[115] The actus reus includes the following elements:
a. That the accused used his body or an object;
b. Touched the body of the complainant; and
c. While the complainant was under the age of 16.
[116] The mens rea requires the intention to touch for a sexual purpose. The expression "for a sexual purpose" has been interpreted to mean either the sexual gratification of the accused or the intention to violate the sexual integrity of the complainant. See R. v. Morrisey, 2011 ABCA 150.
3. Treatment of Children's Testimony
[117] A.Q.-G. and K.B. were both minors at the time of the alleged facts. A.Q.-G. was seven to eleven years old at the time of the alleged facts. K.B. was three to four years old.
[118] I remind myself that I must assess the credibility of A.Q.-G and K.B. with common sense and that I must not impose the same rigid criteria on them that I would apply to adults. See R. v. W. (R.), [1992] 2 S.C.R. 122, at paras. 24 to 26.
[119] Children perceive the world differently from adults, and the absence of precise details, such as the time or place of an event in their memories, does not mean they misunderstood what happened. Therefore, inconsistencies in a child's testimony must be evaluated in this context. See R. v. B. (G.), [1990] 2 S.C.R. 30, at paras. 54-55.
[120] The criminal standard of proof beyond a reasonable doubt must be applied. The assessment of the reliability of children is not subject to a less rigorous standard of examination than that of adults. Where there are significant inconsistencies or contradictions in the testimony of a young complainant, or where such testimony is examined alongside contradictory evidence in the case, I must carefully assess the evidence before determining that guilt has been proven. See R. v. W. St., 18 O.R. (3d) 509, leave to appeal to SCC refused, [1994] S.C.C.A. No. 290.
[121] Given the current age of the two young complainants at trial, I have carefully assessed their testimony, taking into account their age, development, understanding, and ability to communicate, as I would for any other witness.
4. Behavior During Testimony
[122] I must caution myself against the risk of relying unduly on my impressions concerning the behavior of A.Q.-G. or K.B. during their testimony.
[123] As the Ontario Court of Appeal noted: "while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness": Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 66.
[124] The quality of testimony is also not determined by the quality of the witnesses' performance. Witnesses who perform poorly during their testimony may still provide honest and reliable evidence.
[125] Ultimately, the best way to verify the credibility and reliability of witnesses is to examine the extent to which their testimony is consistent with other evidence that is objectively reliable or which I can otherwise be satisfied is truthful and accurate. As Justice Karakatsanis, then of this Court, noted in Cuthbert v. TD Canada Trust, 2010 ONSC 830, at paragraph 42, "[c]redibility is best tested against common sense, inherent consistency and consistency with contemporaneous and undisputed documents."
[126] In the present case, however, there are no "contemporaneous and undisputed documents" nor any other objectively reliable evidence. All the evidence in this case comes from A.Q.-G., K.B., and their mother, A.B., in the form of their testimony before the court.
5. Delays in Reporting Crimes
[127] The timing of filing a complaint is a factor to be considered in the factual circumstances of a case. The law now clearly recognizes that victims of abuse often do not disclose such abuse and that, when they do, it may take a long time. See R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, and R. v. W. (R.), at para. 136.
[128] It is also recognized that victims do not all process their trauma in the same way. There are many reasons that can explain a delay in disclosure. In this case, the evidence clearly establishes the family dynamics of both complainants as well as the manner and timing of their disclosure of the facts. See R. v. Rose, 2021 ONCA 408, at para. 39.
[129] I do not consider the delay in disclosure of the facts in this case to have had a negative impact on the credibility of the complainants. Indeed, the evidence establishes that both complainants discussed the timing of disclosure and their lack of readiness to file a complaint. I draw no adverse conclusion from their delay in disclosing the facts in this case.
[130] The accused does not submit that the timing of disclosure harms the credibility of the two complainants.
B. Examination of Allegations Regarding A.Q.-G.
1. Credibility of A.Q.-G.'s Testimony
[131] In my view, the central issue in this case is the reliability of the two complainants, rather than their credibility. The distinction between credibility and reliability is important. Credibility concerns a witness's willingness to tell the truth and their honesty. Reliability concerns the accuracy of the witness's testimony. Credibility does not replace reliability, as a credible witness may provide unreliable testimony.
[132] I find that A.Q-G. testified clearly and directly. She was attentive and thoughtful, and appeared to do her best to provide accurate evidence. Her behavior reflects this attitude, even though, as mentioned previously, behavior plays a somewhat limited role in assessing credibility and reliability. She did not appear to have a motive to fabricate facts. I believe the testimony presented by A.Q.-G. and I consider her to be an honest witness.
2. A.Q.-G.'s Testimony: Inconsistent Versions and Memory
[133] Although I found A.Q.-G. to be honest and credible as a witness, I have doubts about the reliability of her testimony. A.Q.-G. was extensively questioned about her changing memories and the role played by her memory in these changes. The testimony presented below highlights doubts about the memories recovered by A.Q.-G. and the numerous inconsistencies:
a. A.Q.-G. stated that she clearly remembered the August 12, 2023 interview and confirmed everything she had told police on that occasion. She also confirmed having subsequently recounted the facts at the preliminary hearing on March 4, 2024. A.Q.-G. rejected the defence counsel's argument that her memory was better in August 2023 than in March 2024. She stated that she remembered roughly the same details on both occasions, explaining that her trauma influenced her memory. She stated that her memory worked like a button over time. She stated that the incidents had deeply affected her and that if she thought about them or let them linger, she would end up thinking about them constantly. A.Q.-G. rejected the idea that she could sometimes remember events and sometimes not because of her trauma. She explained that she tried not to think about D.L.'s acts on a daily basis.
b. A.Q.-G. was questioned about her memories of incidents that occurred in her bedroom. She confirmed that she had always had three memories related to her bedroom: one incident that occurred while she was sleeping and two incidents that occurred while she was playing. She was asked if the memories she had of these incidents at trial were the same as those she had during her interview with police. A.Q.-G. explained that her memories were not the same, as some details had come back to her. She stated that additional details about these incidents and other incidents had come back to her.
c. Regarding the incidents in the yard, A.Q.-G. stated that she had always remembered them, but she had not mentioned them in her police statement in August 2023, as she had not been asked about them and had been asked to briefly tell her story. She explained that many details had come back to her, without being able to specify which memories had been recovered. She added that she had simply provided the important points to police.
d. Regarding the incident at the Chinese restaurant, A.Q.-G. stated that she had always remembered this event, but she had not mentioned it during her interview with police. She specified that she had had a flashback after the police interview and described the incident at the preliminary hearing. She explained that the flashback occurred in August 2023, while she was a passenger in a vehicle and passed by the restaurant. She stated that she had not seen the restaurant since she was 8 years old, when the incident allegedly occurred, until this flashback in 2023.
e. A.Q.-G. acknowledged during cross-examination that D.L. had touched her breasts in the stairwell while they were going down to the basement of the Chinese restaurant and that she had not testified about this during examination-in-chief.
f. A.Q.-G. stated at trial that D.L. had penetrated her with his fingers on one occasion while she was lying on the living room couch. She acknowledged having stated at the preliminary hearing that D.L. had only touched her outside her vagina. She acknowledged never having spoken about this incident before trial. A.Q.-G. explained that, given the trauma she had suffered, she had remembered these additional acts three or four days before trial, when she saw a photo of D.L. on Facebook. She contested the idea that she had no prior memory of this incident, but also stated that this memory had only recently resurfaced. She stated that she had tried to forget D.L.'s face, but seeing the photo for a few seconds, four days earlier, had revived this memory.
g. Regarding the incident in the basement involving K.B., A.Q.-G. was questioned about the fact that she had never stated before trial that she had come down to intervene in the alleged sexual behavior by hitting D.L.'s hand, pulling up her sister's underwear, and leaving the basement with her. In her previous statements, she had described her intervention by speaking to D.L. from the stairs, before going back upstairs. A.Q.-G. maintained that she would not have left her sister and stated that her previous descriptions included looking for her sister, which necessarily implied these additional details.
3. Examination of A.Q.-G.'s Testimony in Light of Other Evidence
[134] I have also taken into account A.Q.-G.'s testimony as well as other evidence presented by the Crown, including the testimony of A.B. and K.B.
[135] A.B. testified directly. She appears to support her daughters while remaining close to S.L., with whom she continues to maintain a relationship. Based on my assessment of her testimony, she appeared to want to answer the questions posed to her honestly while managing difficult family relationships. She openly acknowledged the tense situation within the family and the lack of open communication about the allegations and the criminal proceedings.
[136] In many respects, A.B.'s testimony confirms certain aspects of A.Q.-G.'s testimony. For example, she confirms D.L.'s presence at the residence where the offences allegedly occurred, the layout of the residence, the seating arrangement at the dining table, A.Q.-G.'s tendency to fall asleep on the couch, and the possibility of a visit to a Chinese restaurant in Hawkesbury with D.L.
[137] However, in other respects, her testimony contributes to raising a reasonable doubt about the allegations. She stated that she and S.L. were almost always at the residence, as neither had outside employment at that time. Furthermore, she stated that she and S.L. never left A.Q.-G. or K.B. alone with D.L. If she had to leave the residence, S.L. stayed with the children.
[138] A.B. stated that she had never seen D.L. do anything to A.Q.-G. While her testimony does not entirely rule out the possibility that the crimes were committed, it significantly reduces it. I accept A.B.'s testimony in this regard.
[139] A.B. stated that she had never seen D.L. commit inappropriate acts towards A.Q.-G. This contradicts A.Q.-G.'s testimony, which stated that D.L. had touched her sexually on the living room couch or at the dining table in the presence of A.B. and S.L.
[140] It is significant that A.B. does not remember A.Q.-G. sitting on her lap at the table, except if she was not feeling well. At most, A.B. admitted that it was possible she sat on her lap. In her testimony, A.Q.-G. stated that she sought refuge with her mother by sitting on her. In light of these elements, it seems to me implausible that D.L. would have sexually assaulted A.Q.-G. at the table, while she was surrounded by her parents and her brother and sister.
[141] Finally, A.B. did not remember A.Q.-G. having a cold sore when she was a child, as A.Q.-G. had described in her testimony. A.Q-G. stated that she had a cold sore when she was a child after being kissed by D.L.
[142] A.Q.-G.'s testimony regarding her intervention in the alleged sexual assault of K.B. is not confirmed by K.B.'s testimony, which stated that A.Q.-G. did not intervene in the alleged sexual acts committed by D.L. in the basement. The Crown submits that it is possible that K.B. is remembering another incident in the basement. While this is possible, it would be speculative to conclude that this is the case. In my view, K.B.'s testimony contradicts that of A.Q.-G. regarding this incident.
[143] In my view, when examining all the evidence, the testimony of A.B. and K.B., as described above, contributes to raising a reasonable doubt.
4. Conclusions Regarding A.Q.-G.'s Testimony
[144] A.Q.-G. stated on several occasions that she had always kept in memory the events she testified about at trial, but her testimony contradicts this statement. Two examples illustrate this observation. First, regarding the incident at the Chinese restaurant, A.Q.-G. stated that she had always remembered this incident, but she also stated that her memory returned to her in August 2023 after passing by the restaurant in question. The memory returned to her suddenly in the form of a flashback. Second, A.Q.-G. stated that a few days before her trial testimony, she saw a photo of D.L. on Facebook that reminded her of an incident involving penetration. Although she stated that she had never spoken about this incident before and that it had only recently come back to her, she contested the statement that she had no memory of this incident before her memories returned to her.
[145] A.Q.-G.'s testimony regarding the alleged behavior of D.L. contains several significant internal inconsistencies that raise questions about its reliability. Among these are:
a. The incident at the Chinese restaurant was not initially reported to police during the first interview. She spoke about it for the first time at the preliminary hearing.
b. Regarding the incident at the Chinese restaurant, A.Q.-G. stated for the first time during cross-examination at trial that D.L. had touched her breasts in the stairwell while they were going to the toilet in the basement.
c. Regarding the touching on the couch in the family home, she stated for the first time at trial that D.L. had penetrated her with his fingers while she was sitting on the couch.
d. Regarding her account of her intervention in D.L.'s sexual behavior towards her sister, K.B., A.Q.-G. testified for the first time at trial that she had physically intervened, pulled up K.B.'s underwear, and left the basement with her.
[146] Although I accept A.Q.-G.'s explanation regarding the summary nature of her first interview with police, during which she stated she had difficulty speaking about the events in front of her mother for the first time, many of the inconsistencies are central aspects of the allegations. Moreover, some inconsistencies appear after the preliminary hearing testimony, where A.Q.-G.'s initial reluctance should not have been present. These internal inconsistencies are at the heart of A.Q.-G.'s account, raise questions about its reliability, and lead me to conclude that it would be dangerous to rely on her account of what happened to her.
[147] The reliability problems raised by the inconsistencies are accentuated by the memory problems and memory recovery. Credit must be given to A.Q.-G. for being frank about how her memory works. She admits that it is affected by the trauma she alleges and that many additional details and incidents have resurfaced over time.
[148] The Crown provided no expert testimony to assist in the assessment of these recovered memories. I note that in R. v. François, [1994] 2 S.C.R. 827, the majority of the Supreme Court of Canada judges suggested that the reliability of recovered memories can sometimes be judged without expert evidence. As a judge, I must rely on my common sense and judgment, based on my personal experience. In my view, the manner in which A.Q.-G.'s memories have resurfaced raises doubts about their reliability. For example, the incident at the Chinese restaurant was not initially present in her memory, and once she remembered it, part of the allegations changed during the trial.
[149] Given the numerous inconsistencies in A.Q.-G.'s testimony, my concerns about the recovery of A.Q.-G.'s memories in this case, the absence of significant corroborating evidence, the evidence provided by A.B. regarding the relative lack of opportunities for D.L. to have committed the offences against A.Q.-G., as well as the implausibility that the offences could have been committed in the presence of A.B. and S.L. without being detected, I conclude that the Crown has not met the very high standard of proof beyond a reasonable doubt necessary for me to conclude that D.L. is guilty of the offence. There remains a reasonable doubt in my mind.
C. Examination of Allegations Regarding K.B.
1. Credibility of K.B.'s Testimony
[150] K.B. testified clearly. As with A.Q.-G., her credibility raises no concerns. I am satisfied that she testified honestly about her memories and that she intended to be accurate.
[151] K.B. was three to four years old at the time of the alleged offences. The fact that K.B. was very young at the time of the alleged offences does not mean that her testimony is less worthy of belief, less credible, or less reliable. The testimony must be assessed taking into account her mental development, perception, and ability to communicate.
2. K.B.'s Testimony: Inconsistent Versions and Memory
[152] K.B. stated that she had always kept in memory the events discussed at this trial. She acknowledged omitting certain details during her first police statement, but revealing them later. She did not remember how she had recovered these details, but thought they came from her dreams.
[153] She also explained that she was stressed when she first spoke to police. She stated that she felt uncomfortable discussing the events in the presence of her mother, who had never heard about what had happened before. Therefore, she omitted mentioning certain elements.
[154] K.B. stated that in her dreams, she relived what had happened in the basement or in the toilet, but when she woke up, she was fine. She testified that, to some extent, the dreams had helped her remember what had happened. When asked what details the dreams had provided her, K.B. answered: "Well, it's the time, like, in the basement when he had... in the playroom, when S. had come down."
[155] Regarding the incident in the bathroom, K.B. acknowledged that she had only spoken about it during her second interview with police. She explained that she was stressed and uncomfortable about telling the facts in the presence of her mother.
3. Examination of K.B.'s Testimony in Light of Other Evidence
[156] As stated above, the testimony of K.B. and A.Q.-G. contradict each other in several respects regarding an incident that allegedly occurred in the basement. K.B. stated that A.Q.-G. did not intervene during an incident in the basement. There is no objective evidence to determine whether K.B.'s or A.Q.-G.'s testimony is accurate or whether they are referring to different incidents. What is evident is that the sisters' accounts are inconsistent regarding the events that occurred in the basement, which, when examined alongside all other evidence, raises a reasonable doubt.
4. Conclusions Regarding K.B.'s Testimony
[157] K.B.'s testimony regarding the alleged behavior of D.L. is based in part on memories drawn from dreams. The extent to which the description of events depends on dreams is not clear from K.B.'s evidence, but based on what I have, it could be considerable. The assistance provided by dreams to the memory recovery process in this case is problematic in the circumstances and, in my view, raises real concerns about the reliability of the memories. I am particularly of this view because K.B.'s account lacks detail.
[158] There is no independent evidence that significantly confirms K.B.'s testimony. Indeed, A.Q.-G.'s testimony contradicts K.B.'s regarding the events that occurred in the basement.
[159] As in the case of A.Q.-G., the likelihood that the incidents involving K.B. occurred in the basement or in the upstairs bathroom is considerably weakened by A.B.'s testimony regarding the relative lack of opportunity.
V. CONCLUSION
[160] Although I think that some of the things described by A.Q.-G. and K.B. probably occurred, I retain a reasonable doubt as to D.L.'s guilt on the charges against him before the court. Although I believe the testimony of A.Q.-G. and K.B., I find that, in light of all the evidence, it does not meet the very high standard of proof beyond a reasonable doubt.
[161] In reaching this conclusion, I have taken into account the reliability problems with the testimony of A.Q.-G. and K.B. regarding the recovery of memories through flashbacks or dreams, the internal inconsistencies, the implausibility that the offences were committed, and the absence of independent evidence confirming the complainants' accounts. I remain uncertain as to D.L.'s guilt and, therefore, he must be acquitted.
The Honourable Justice Brian Holowka
Published: September 12, 2025