Court File and Parties

Court File No.: CR-24-009

Date: 2025-09-15

Ontario Superior Court of Justice

Between:

His Majesty the King

and

R.C.

Before: L. Shaw J.

Counsel:

Andrea Camilletti, for the Crown

Anya Shahabi, for R.C.

Heard: May 12-14, 2025

Reasons for Judgment

Introduction

[1] The accused, R.C., has pleaded not guilty to one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code") and one count of sexual interference contrary to s. 151 of the Code. Both counts relate to several incidents that occurred between January 1, 2016 and January 9, 2024. I tried the accused without a jury.

[2] The Crown called four witnesses. The accused testified on his own behalf and called one other witness.

[3] Only the accused and the complainant, S.C., who is the accused's daughter, can testify about the alleged sexual assaults. S.C. alleges that on multiple occasions, between the ages of 4 and 13, R.C. came into her bedroom, while she was sleeping, and touched her buttocks, breasts and vagina. R.C. denies that he ever did so.

[4] Given the conflicting evidence, the credibility and reliability of the witnesses who testified are central to this case in determining if the Crown has proven R.C.'s guilt beyond a reasonable doubt.

Analytical Framework

Presumption of Innocence and Reasonable Doubt

[5] The concepts of presumption of innocence and proof beyond a reasonable doubt are of fundamental importance in criminal law. The concepts exist so that no innocent person is convicted of a crime.

[6] Each person charged with a criminal offence is presumed innocent and this presumption remains throughout the whole trial, unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt by the Crown.

[7] At all times, the Crown bears the onus for proving that an accused is guilty beyond a reasonable doubt. The standard is a high one to prevent wrongful convictions. The trier of fact must be sure an accused person committed the offence in order to convict. If the trier of fact is not sure, the accused must be found not guilty of the offence.

W.(D.) Analysis

[8] Because R.C. testified and denied the allegations, the three-step analysis set out at pp. 757-58 of R. v. W.(D.), [1991] 1 S.C.R. 742 must be followed to prevent the burden of proof from shifting to the accused. The three steps are as follows:

I. If I believe R.C.'s evidence, I must acquit him.

II. If I do not believe R.C.'s testimony but am left in reasonable doubt by it, I must acquit him.

III. Even if R.C.'s evidence does not leave me in doubt, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of R.C.'s guilt.

[9] At all times, it is important to keep in mind that the accused's credibility should not be assessed solely in relation to the complainant's credibility. This is not a credibility contest between S.C. and R.C. The burden remains on the Crown to prove R.C.'s guilt beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152 at para. 9.

[10] In a case such as this, when dealing with two witnesses whose evidence are completely contradictory, an accused is not to be disbelieved simply because the complainant is believed: R. v. V.Y., 2010 ONCA 544, 258 C.C.C. (3d) 281, at paras. 19, 26. An accused is not to be found guilty after accepting the evidence of the complainant without properly assessing whether the accused's evidence, or the evidence as a whole, raises a reasonable doubt: R. v. J.H., 2018 ONCA 245, at para. 37.

[11] The mere disbelief of the accused's evidence will not discharge the Crown's burden of proof: W.(D.), at p. 757. If, after considering all the evidence, the court is unable to decide whom to believe, then the court must acquit. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt.

Assessing Credibility and Reliability

[12] When making credibility and reliability findings, I must consider several factors to assess the weight to give a witness' evidence. No single factor is determinative: each must be considered where applicable. Some of those factors are a witness's power of observation, the accuracy of his or her memory, his or her age at the time of the events being recounted, the passage of time, any bias or partiality or interest in the outcome, any inconsistences with prior statements or with other witnesses or documentary evidence, inconsistencies in evidence given during the trial, and if there is any independent confirming or contradictory evidence.

[13] Assessing the reliability and credibility of a witness is not a science. As we instruct juries, there is no magic formula in deciding how much or how little to believe of a witness's evidence. We are to be guided by our common experience in human affairs.

[14] In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-13, the Court of Appeal noted that one 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 he or she has said on other occasions, whether under oath or not. Inconsistences may arise not just from a witness's evidence at trial, but from what witnesses may have said differently in other instances. Some inconsistences are minor or deal with more peripheral issues. Some are material. Material inconsistencies about which an honest witness is unlikely to be mistaken may demonstrate a carelessness with the truth that should concern the trier of fact.

[15] Reliability is separate from credibility. Credibility focuses on a witness's veracity. Reliability has more to do with accuracy – the witness's ability to observe, recall and recount events that are at issue. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue: R. v. C. (H.), 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41.

[16] It is open to a trier of fact to believe all, none, or some of a witness's evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. Howe, 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, at para. 143.

[17] In assessing R.C.'s evidence, the court must consider his evidence in the context of all the evidence when determining reasonable doubt: R. v. J.H.S., at para. 15.

[18] Where there are significant inconsistencies or contradictions within a principal Crown witness's testimony, or when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilt has been established: R. v. S. (W.), 18 O.R. (3d) 509 (C.A.), at para. 15.

[19] Witnesses are not "presumed to tell the truth": R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32. Rather, the totality of the evidence must be considered when assessing each witness's evidence. The only presumption that applies is the presumption of innocence: Thain, at para. 32.

[20] To be given confirmatory weight, evidence need only be more consistent with a witness's version than with another: R. v. Varghese, 2024 ONCA 555, 439 C.C.C. (3d) 402, at para. 49. The Court of Appeal also held that in "[d]eciding whether evidence confirms or corroborates a complainant's allegations 'is part of the broader assessment of the complainant's credibility and reliability that trial judges must make based on the entirety of the evidence'": Varghese, at para. 49, citing R. v. G.H., 2023 ONCA 89, at para. 20.

[21] It is an error to reason that because an allegation could have been worse, it is more likely to be true: R. v. Alisaleh, 2020 ONCA 597, at paras. 16-17. A lack of embellishment may be relevant to assessing credibility where the defence has alleged a motive to fabricate: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 5; R. v. P.B., 2024 ONCA 96, at paras. 20, 22.

Videotaped Statements under s. 715.1

[22] On consent, S.C.'s and B.T.'s out-of-court statements given to the police were admitted for the truth of their contents pursuant to s. 715.1 of the Code. Provided certain conditions are met, that provision provides for a statutory exception to the rule that hearsay is inadmissible.

[23] It is generally accepted that children will have a better recollection of events shortly after they occur. A videotaped statement made within a reasonable period after the alleged offence will reflect a more accurate recollection of events than would testimony given later at trial. Section 715.1 of the Code enhances the court's ability to find the truth by preserving a very recent recollection of the event in question: R. v. F. (C.C.), [1997] 3 S.C.R. 1183, at paras. 17-19.

Motive

[24] The accused has no obligation to establish that the complainant has a motive to fabricate or lie. There may be many reasons why a person may accuse another of committing an offence which may never be known.

[25] The absence of evidence of motive to fabricate is not the same as proven absence of motive to fabricate: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44. "The former is an element that may be considered in assessing the credibility of a witness, but it is only one element", whereas "the latter may be a compelling reason to conclude that the witness is telling the truth": R. v. W.R., 2020 ONCA 813, at para. 18.

Assessing a Child's Evidence

[26] Adult standards should not be applied when assessing the credibility of a child witness. Children may experience the world differently from adults, and, as such, important details like time and place may be missing from their recollection, and they may experience confusion about sequence, frequency and separation of days: R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133 and R. v. C. (T.), 74 O.R. (3d) 100 (C.A.) at paras. 19 and 40.

[27] Flaws in a child's evidence may not toll so heavily against credibility and reliability as they do against the testimony of an adult: R. v. C.(H.), 2009 ONCA 56 and W. (R.), at p. 133, citing R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55. A common sense approach must be used when assessing the testimony of young children and not necessarily the same exacting standard as applied for adults. They may not be able to recount precise details and communicate the when and where of an event with precision, but that does not mean they have misconceived what happened to them and who did it: B. (G.), at p. 55. To be clear, however, this does not mean that a child's evidence is subject to a lower level of scrutiny for reliability than that of adults: B.(G.), at pp. 54-55.

Collusion

[28] The term collusion includes deliberate collusion where witnesses fashion their evidence to appear to be reciting a consistent and reliable story: R. v. C.G., 2021 ONCA 809, 158 O.R. (3d) 721, at para. 28. The other type of collusion is referred to as "inadvertent collusion" and occurs where one witness discusses the event with another witness with the consequence that the evidence of one or both may be altered: C.G., at para. 28. A witness's evidence may be inadvertently impacted by hearing the evidence of other witnesses which can have the effect, either consciously or unconsciously, of impacting their description of the events: R. v. B. (C.), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 40.

[29] Inadvertent collusion impacts the reliability of a witness's evidence. For this reason, in C.G., the court suggested at para. 30 that a more accurate description would be "inadvertent tainting" rather than "inadvertent collusion."

[30] Innocent collusion occurs when, through conversation, false memories are implanted and overwhelm independent recollection: R. v. E.M.M., 2021 ONCA 436, at para. 19. In E.M.M., the court cautioned that triers of fact must be cautious about concluding that a witness's evidence is no longer independent and has been tainted simply because of a conversation. It is human nature to discuss what happened immediately after an offence takes place: E.M.M., at para. 19. Where inadvertent collusion has occurred, the court must closely examine what impact the innocent sharing of information may have had on the evidence of each of the witnesses who is a party of the exchange: C.G., at para. 32.

Review of the Evidence

[31] With this analytical framework, I will now review the evidence.

[32] S.C. was born in July 2011. Her parents subsequently separated and from the age of three or four, she lived with R.C. She spent time with her mother but did not live with her. At times, either her cousin or brother also lived with her and her father.

[33] R.C. and S.C. lived in a duplex. R.C.'s sister lived in the lower unit, and they lived in a unit on the upper two floors. S.C. alleges that the sexual assaults occurred in her bedroom after R.C. consumed alcohol. Her bedroom was on the second floor. There was a bedroom across the hallway from her bedroom that was first occupied by her cousin and then her brother when he moved in. The living area and R.C.'s bedroom were on the main floor of the home.

[34] Both S.C. and R.C. testified that they had a generally good relationship.

[35] S.C. alleges that R.C. was intoxicated each time he sexually assaulted her. There was conflicting evidence about how often R.C. consumed alcohol and what he drank.

S.C.'s Evidence

i) Police Statement

[36] S.C. gave a statement to the police on January 11, 2024. Her statement was played during the trial. S.C. confirmed that she recalled speaking to the police and that what she said to the police was true.

[37] Parts of the statement were edited as it contained inadmissible evidence regarding another individual.

[38] S.C. told the police that R.C. touched her when he was "drunk". She said that it only happened when she was sleeping "so he thinks I don't know". The first time was when she was four. She recalled that they were at her aunt's birthday party in the lower unit of the home. She said that R.C was drinking a lot at the party. After the party, R.C. came into her bedroom and told her to remove her underwear. He then touched her vagina with his hands and mouth. She said he put his fingers in her vagina and then "started licking it". She didn't know if she imagined this or if it actually happened but then it "started happening more".

[39] According to S.C., R.C. did not come into her bedroom and touch her again until two years later when she was six. By then, he again started to drink "too much". She told the police that when he next assaulted her, he came into her bedroom and touched her vagina, "boobs" and "butt". Following that assault, there were probably over 20 occasions, that she knew of, when R.C. came into her bedroom and sexually touched her using his hands. She said that he only used his mouth the first time when she was four.

[40] S.C. told the police that the "many, many" times that R.C. sexually assaulted her, he would come into her bedroom while she was sleeping. She would wake up and feel him touching her "private areas". After she woke, her eyes would be closed. She would then start to move and sit up and R.C. would know that she was awake. She would ask R.C. what he was doing. He would stop touching her and make up an excuse about why he was in her bedroom, such as he was getting the cat or some water, and then leave. She told the police she kept her eyes closed when she initially woke up as if his penis was out, she did not want to see it. She would then start to move so "like he'll put it away… or something".

[41] The last incident occurred a couple of days before she spoke to the police. She said that R.C. was drinking a lot. He had told her that he was going to quit drinking a while before that. She did not think anything was going to happen and then he came in and she smelled beer "and alcohol and stuff" and she walked to her room. She tried to stay awake all night because she did not want anything to happen, but she could not stay awake and fell asleep. She woke up the next morning and she felt him touching her "boobs, my vagina and my butt". He said he was there to get the cat and then left.

[42] She said that when R.C. touched her buttocks and breasts, it was sometimes over top of what she was wearing and sometimes under. He also touched the outside of her vagina and put his fingers inside her vagina.

[43] She told the police that when she would wake up to R.C. touching her, she would think "this is happening again" and that she needed to tell someone but she was scared and did not know what to do.

[44] When asked by the police, "[w]hat are you thinking, or feeling, or any of your other senses, smelling, anything like that", she said that she recalled there being a "weird smell" that she could not describe. She smelled it most of the times this happened. She told the police that it might come from R.C.'s "private part". She was then asked to tell the police more about that and she said that R.C. could be touching himself while he was touching her. When asked if she had seen that, she said "no". She was asked again why she thought this smell came from R.C. and she said, "[b]ecause, um, I feel like if he was touching me, he'd probably be touching his self too". When asked what she thought the smell might be she said that it might be "cum". When asked why she thought that, she said that his one hand was on her vagina and his other "hand's usually like by his private part".

[45] She said that R.C. would only be wearing his boxers when he was in her bedroom. She said his hand would be on the outside of his boxer shorts by his penis. She denied ever seeing any of his body parts.

[46] She also told the police that R.C. would sometimes bring lotion into the room. She described it as a white Dove bottle with a squirt top. She would see it on the floor and then see him leave with it. She did not actually see him use it in her bedroom but saw him use the lotion on his hands at other times when he was not drinking.

[47] The police asked S.C. if anyone else was there when this was happening. She responded that her brother's bedroom was across from hers, but she said he was a really deep sleeper and he did not know "anything about this".

[48] S.C. told the police that she told her friend B.T. and B.T.'s mother, A.C., about what happened but had not told anyone before Christmas 2023.

[49] S.C. said that she used to go to bed at 7 pm but at the time this statement was given, she was going to bed at 10:30 pm. She wore fleece pyjama pants and a big sweater that she said was an "oodie".

[50] S.C. initially denied discussing what happened with any of her friends on Snapchat. She then told the police that she was pretty sure that she talked with her friend B.T. that morning about going to the police "and stuff" that day.

[51] She told the police that R.C. liked to drink Bacardi, beer, Twisted Teas, whiskey, something called Black Spiced Rum, and vodka. She knew R.C. was drinking because she would see him drinking before she went to bed.

ii) Examination in Chief

[52] At the commencement of trial, orders were made pursuant to s. 486.2(1) of the Code, that S.C. testify outside the courtroom, with the assistance of close circuit television.

[53] S.C. was 13 years of age and in grade 8 when she testified. She now lives with her mother. Prior to January 2024, she lived primarily with R.C. and did not see her mother that much.

[54] According to S.C., she would sometimes have little arguments with R.C. when he was drinking but when he was sober, everything was fine. She also said they fought when he found out she was self-harming in 2023. At that time, she stayed with her mother for approximately one week or less and then returned to live with R.C.

[55] She recalled that her cousin, G., lived with her and her father until she was 6 or 7 years of age (this would have been in 2017 or 2018). G. was about 10 years older than her. She did not know what time G. went to bed. When G. moved out, her brother M.C. moved in. During the week, M.C. went to bed between 11 pm and 12 am, and did not have a set bedtime on weekends.

[56] M.C. was sometimes in his bedroom when R.C. came into S.C.'s bedroom and touched her. No one else was in the home on these occasions. When S.C. was 11 or 12 years old, M.C.'s girlfriend began to spend nights at the home.

[57] She described her relationship with both her brother and cousin as pretty good.

[58] She testified that when R.C. touched her buttocks, it was usually over the pyjamas she was wearing. She could not recall him touching her buttocks under her pyjamas. She described the touching as a squeezing. She said she had a large teddy bear at the end of the bed where R.C. would sit when he touched her buttocks or vagina. She did not recall him lying down beside her. She also testified that when he touched her breasts, he would be either sitting on the floor or standing up beside her bed. When he touched her breasts, he would usually touch her over her pyjamas but sometimes under. He would hold her breast and sometimes squeeze it a bit. It was usually only one breast that he touched.

[59] He did not touch her buttocks or breasts each time he touched her, but he touched her vagina every time.

[60] When R.C. touched her vagina, it was always under her pyjamas. It was her evidence that each time, he also put his fingers inside her vagina.

[61] When asked about the smell that she told the police about, she said that it was not a strong smell but a bad one that she had never smelled before.

[62] S.C. told her friend B.T. about what happened in January 2024. She described B.T. as her "super best friend". She also told B.T.'s mother, A.C. with whom she also had a close relationship. She said she was like a second daughter to A.C. She did not tell her mother but believes A.C. told her. She denied that A.C. or her mother told her what to say when she gave her statement to the police. She also denied that she and B.T. discussed what she should say to the police.

[63] She initially did not recall telling the police that she talked to B.T. that day on Snapchat about going to the police. When her memory was refreshed, she recalled messaging B.T. but was not sure if it was about going to speak to the police or about what was going on with her father. She recalled that she initially told B.T. that it only happened once as she loved her father and did not want him to go to jail. When she found out she was going to be speaking with the police, she decided to tell B.T. so she wrote out what she was going to tell B.T. including how many times it happened. She made the note on her phone and then copied it onto Snapchat and sent it to B.T. A copy of that note was made an exhibit.

[64] The note said the following:

I lied when I said it only happened 2 years ago it's happened when I was 4 and when I was 6 and then when I was 11 and meay (sic) times when I was 11 and after I turned 12 and he tried to do it the day I came home from your house and I talk with your mom but it didn't bc I was awake all night that night bc I knew if I went to sleep it would happen bc he was drunk he tried sneaking in my room meany (sic) times that night

[65] According to S.C., R.C. drank a lot. He usually drank beer or Bacardi. He would get a 6 or 12-pack and drink all night or he would get a tiny bottle of Bacardi and drink it in one night. Sometimes he drank both. He was drinking each time he touched her. She said when he drank, he would sometimes have a hard time walking, and his eyes would be red. She also said he was happier and funnier when he drank. There were times he drank and did not touch her.

iii) Cross-examination

[66] S.C. testified that R.C. mostly drank on weekends and sometimes during the week after work. If he drank during the week, he would not finish a case of beer but would have more than one drink. She testified that she knew how many beers he drank as there was a recycling area on the counter where he put his cans of beer. She said he did not clean up and the house would be a mess after he drank.

[67] She agreed that the stairs to her bedroom made a noise when you walked on them. She agreed that she slept with her bedroom door closed and that it made a little creaking noise when it opened or closed.

[68] She was questioned about the first time R.C. touched her after her aunt's birthday party. She could not recall if G. was at the party.

[69] When asked how she remembered that her father sexually assaulted her following her aunt's birthday, she said she remembered that her birthday was not close to hers.

[70] S.C. recalled that when her father came into her room when she was four years old, she was lying on her bed. She sat up when he told her to take off her underwear. She said that ½ of his body was on the bed and ½ on the floor.

[71] The next time this happened was when she was six years old. She did not remember the specific times after that, only that it happened again.

[72] When asked what time of the night R.C. came into her bedroom, she testified that it must have been after her brother, M.C., went to bed and she assumed he was sleeping. She said that it would have been after midnight as M.C.'s bedtime was midnight.

[73] She testified that each time R.C. sexually assaulted her, he was drunk. Her evidence was that the other smell that she described to the police was not alcohol as she knew what alcohol smelled like because R.C. drank a lot. She agreed that her father smelled strongly of alcohol when he came into her bedroom, but she could still detect this other smell. When asked why she did not tell the police that she smelled alcohol, she said that she knew that R.C. drinks a lot and that he has a problem.

[74] She agreed that when her father touched her, she pretended to sleep so she kept her eyes closed as she did not want to see his penis. When asked how she could know that this hand was near his crotch area, she said she would open her eyes a bit and she could see his hand there. She then said that she did not know where his hand was but guessed that is where his private area was as he only used one hand to touch her. She agreed that she was not sure where his other hand was.

[75] According to S.C., R.C. would move around her bed if he touched her vagina and then touched her breasts.

[76] She agreed that around Christmas 2023, her father told her she should not hang around with B.T. as she was trouble. She agreed that she was upset with her father for telling her this. She did not agree that around this time, her relationship with her father deteriorated quite a bit. She testified that she was angry with him and that she always had attitude with him when she was angry, but they still had a good relationship. She agreed that she continued to hang around with B.T. and that her father gave her a hard time for that.

[77] She said that she never told her mother about R.C. touching her as she loved him and did not want anything bad to happen to him. Her evidence was that she still loves her dad.

[78] She agreed that she disclosed to B.T.'s mother, A.C., some details of what happened with her father before she went to the police. She agreed that after she gave her statement to the police, she and B.T. continued to talk about what happened when she was stressed or had a panic attack about it. They would talk about what her father did and how it affected her. They last talked about it three weeks before the trial.

[79] S.C.'s evidence was that she also talked to B.T. about what B.T. saw once when she slept over at S.C.'s home. She said they did not talk about that often and mostly talked about her.

[80] She disagreed with the suggestion that she and B.T. coordinated what they were going to say in court. She denied that she and B.T. talked about what to say when they testified.

[81] A video was shown to S.C. of her and B.T. In the video, S.C. and B.T. are dancing on a bed and the caption across the video is "when my mom put my bfs dad in jail but we still chilling". S.C agreed that B.T wrote this caption. She agreed that the video was made after she gave her statement to the police, but she could not recall exactly when. She testified that she forgot about the video. She agreed that this video was uploaded to Snapchat. When asked if she found the situation amusing, S.C. testified that she did not find it amusing but they were trying to make light of it given how depressed she was. Her evidence was that she had no problem with people knowing why her father was in jail.

[82] On re-examination, she testified that the video was posted on B.T.'s TikTok and Snapchat accounts and it was taken down a few days later. She testified that at the time the video was posted, she was on TikTok and Snapchat everyday. She posted videos on TikTok everyday. She made videos of herself lip synching to songs. She did not post videos on Snapchat but used it to message people.

iv) Agreed Statement of Facts Regarding S.C.'s statement to the police

[83] Counsel agreed that the following was part of the redactions from S.C.'s police statement:

• S.C. told the police that on Christmas 2023, there was an incident involving a friend. The friend was sleeping over but her friend left and did not stay the night;

• S.C. told the police that she believed that R.C. did something to her friend on Christmas 2023 and when she found out, she decided to tell her best friend, B.T. because she believed R.C. was touching other people.

B.T.'s Evidence

i) Police Statement

[84] B.T. is S.C.'s friend. She gave a statement to the police on January 11, 2024, the same day that S.C. spoke with the police. She was in grade 7 at the time.

[85] B.T. told the police about one time when she slept at S.C.'s home. She said that R.C. "kept on coming in and like looking at me and like seeing if I was sleeping. And stuff like that. And like I don't know, being weird". She did not know the exact date this occurred but said it was about three weeks earlier and then said it was a couple of weeks before Christmas.

[86] She said that R.C. peaked into the bedroom about five or six times. He did not come into the bedroom but looked in from the door. She said that nothing really happened to her. She and S.C. were together in S.C.'s bed. S.C. was asleep but B.T. was awake until 6:30 or 7:00 am. She thought she was on her phone. She said she was scared but did not know why. She also said that she was confused about why R.C. kept coming to the door. She thought it was weird and not normal. He did not say anything. Earlier that evening, he made a weird comment to her and S.C. about "you girls and your big boobs, or something like that."

[87] She told the police that she saw R.C. drinking that evening. She thought he was drinking Bacardi and Twisted Teas.

[88] She told the police that her mother picked her up the next day and she told her what happened. She told her mother again just after Christmas 2023.

[89] B.T. told the police that S.C. sent her a message that morning on Snapchat before she spoke to the police, and she saved the message on her phone. It was the same message that was marked as an exhibit.

ii) Examination in Chief

[90] B.T. testified that she had a very close relationship with S.C.; she was like a sister to her. She had known R.C. her entire life and said she had a good relationship with him.

[91] According to B.T., S.C. spent time at her home but she did not spend much time at S.C.'s house. She slept over at S.C.'s house once – the evening when R.C. repeatedly looked into the bedroom. Earlier that day, she said that she saw R.C. drinking. She thought he had a 12-pack of Twisted Teas and a little bottle of Bacardi. She said the bottle was empty the next morning and she saw over five empty cans of Twisted Teas. She thought he drank between 8 pm and 5 or 5:30 am. She stated that she was awake and could hear him downstairs being loud and obnoxious and his voice did not sound right. She also said he was doing weird things that made her think he was drunk, such as making the comment about their chests. She said he made the comment about "big boobs" around 10 pm when he came into the bedroom as they sat on the bed.

[92] According to B.T., the note S.C. sent to her the day they spoke to the police was via Snapchat. She explained that because messages on Snapchat will disappear, she copied the message and saved in into her notes on her phone.

[93] B.T. was asked about the video posted on TikTok. She recalled that she and S.C. posted a video on TikTok as they were "happy that S.C. got away from this". She said it was her idea to post the video. She posted the video about two months after they spoke to the police. At the time, she was using TikTok everyday and would post a video about once each week. She also used Snapchat every day mostly to message her friends.

[94] She believed that the night she stayed over at S.C.'s home and R.C. kept looking into the bedroom was sometime in November 2023. She said she woke up S.C. that night and asked her why her dad kept coming into the bedroom. According to B.T., S.C. told her about her father touching her the day she slept over.

[95] B.T. also testified that the following morning, she asked S.C. about her father coming into the bedroom and S.C. "confirmed it all to me" and said that is what R.C. does. S.C. told her he only did it a couple of times when she was young. She testified that she called S.C. about it later the next day and asked her what was going on and why her dad kept looking into the bedroom. Her evidence was that this was when S.C. disclosed to her about her father touching her. She said this occurred "definitely" before Christmas 2023.

[96] B.T. testified that she told her mother the day after the sleepover about R.C. coming into the bedroom and what S.C. told her about her father touching her. She recalled that she spoke to the police in January 2024 but was not sure how much time passed between when she spoke to her mother and when she spoke to the police.

[97] B.T. denied that her mother told her what to say to the police. When asked if she told S.C. what to say to the police, she said "not really" other than that they could not lie.

iii) B.T.'s Cross-examination

[98] According to B.T., while she was not at S.C.'s home very often, every time she was, R.C. was drunk. She said that was not normal and that R.C. had an alcohol problem. She did not tell the police this and her explanation was that she had a lot on her mind when she spoke to the police.

[99] She did not agree with the suggestion that she did not like R.C. very much. She said that R.C. was an amazing dad and did everything for S.C.

[100] She was not aware that R.C. told S.C. not to hang out with her. She did not recall an incident where R.C. was upset with her for vaping.

[101] She was asked questions about when S.C. told her about R.C. touching her. She agreed that it might have been Christmas day or Boxing Day when S.C. first told her, but she could not recall the exact date.

[102] Her evidence was that when she told her mother about what happened the night she stayed over, no steps were taken as they had trusted R.C. for years and just thought he might have been drunk and was checking to make sure she was sleeping. She agreed that once S.C. made the disclosure to her, she then decided what happened that evening was more sinister.

[103] Her evidence was that after speaking with the police, she and S.C. did not talk about the incident a lot. They would talk about it when S.C. was upset. She agreed that they had been talking about it as the trial was approaching. She then said they talked about court and not about "it" but could not recall what was discussed. She said they talked about how hard this will be and how it will impact them. She said that they did not discuss the incident very often. B.T.'s evidence was that once per week S.C. would "freak out about it a lot" as it is her father.

[104] When asked about the video that she made of her and S.C., B.T. testified that they were not happy but wanted to bring light to a dark situation. She said they were two kids who did not know what they were doing. She also testified that she and S.C. thought that everyone should know the type of person R.C. is. Her evidence was that S.C.'s mother told them to remove the video but she had already thought that it should be deleted.

[105] B.T.'s evidence was that she talked to her mother often about what happened as it had a big impact on her life.

iv) Agreed Statement of Facts

[106] Some of B.T.'s statement to the police was redacted for inadmissible evidence. It was an agreed fact that in the redacted portion of the statement, she told police that she received information from their friend A. by way of Snapchat in the early hours of December 26, 2023, and she told S.C. about that.

C.C.'s Evidence

[107] C.C. is S.C.'s mother. She is 32 years of age. She was in relationship with R.C. between the ages of 17 and 21. They have another child together who is now ten years old. She has another child who is two years old. When the relationship ended, R.C. had custody of S.C. and C.C. had parenting time every other weekend.

[108] She first learned of S.C.'s disclosure from A.C. who contacted her on January 10, 2024. That same day, she went to the police. She denied speaking with S.C. about what happened before she went to the police. She talked to S.C. before S.C. went to the police the next day.

[109] When she was cross-examined, her evidence was that she did not want S.C. to talk to her about it as she did not want to be involved in that manner. She denied that she spoke to B.T. or her mother, A.C., about what happened.

[110] S.C. has lived with C.C. since January 2024. She denied ever telling S.C. what to say in court.

[111] C.C. became aware of the video posted on TikTok the day it was posted in January 2024, and told S.C. to "smarten up," and by that she meant it should be taken down.

A.C.'s Evidence

[112] A.C. is B.T.'s mother. She knows R.C. through S.C. She described R.C. as a great father who did everything for S.C.

[113] According to A.C., S.C. spent a lot of time at their home; at times she was there everyday. She would spend nights at their home. B.T. did not go to S.C.'s home very often; she may have spent one or two overnights at S.C.'s home.

[114] A.C. testified that a month or so prior to Christmas 2023, B.T. told her about R.C. looking into the bedroom one night when she slept over at S.C.'s home. She was not concerned about that as she thought R.C. was just checking in on them to make sure they were okay.

[115] In December 2023, A.C. spoke to S.C. about a disclosure B.T. made to her concerning her friend A. About one week later, in early January 2024, B.T. told her to talk to S.C. about a disclosure S.C. made to B.T. A.C. then spoke with S.C. who told her about her father and asked her not to tell anyone. A couple of days later, after thinking about it, she decided to speak with C.C. A.C. spoke to S.C. and B.T. again about what happened before she spoke to C.C.

[116] A.C. denied that she ever told S.C. or B.T. what to say to the police or what to say when they testified in court.

[117] When she was cross-examined, her evidence was that she trusted R.C. and did not think what S.C. said he did was possible, so she asked S.C. more questions to get to the bottom of it. She said that S.C. did not want her to tell her mother.

R.C.'s Evidence

i) Examination in Chief

[118] R.C. testified. He is 37 years of age and works for himself doing carpentry and painting work. He has three children. When he and C.C. separated, an agreement was reached that S.C. would live with him and C.C. would have parenting time with S.C. twice per week and every other weekend. When he was cross-examined, he testified that until 2021, the time S.C. spent with her mother on weekends was sporadic but was more frequent after that. He had parenting time every other weekend with the other child he had with C.C., who he only found out was his child when the child was three years old.

[119] He agreed with S.C.'s description of their home. His evidence was that there was two feet between her and his son's bedroom.

[120] According to R.C. his nephew, G., lived with them for five years between the ages of 14 and 19. He moved out in 2016-2017 and about one week later, R.C.'s son, M.C., moved in. M.C. was 12 and S.C. was 7 at the time. M.C. also spent time with his mother until he turned 13, after which he did not see his mother. M.C. and S.C. had different mothers.

[121] In 2023, M.C.'s girlfriend began spending two or three weekends per month at their home.

[122] R.C. recalled his sister's birthday when S.C. was four years of age. He testified that he remembered the birthday as his sister got a dog. His sister, her husband, a couple of her husband's friends, his son, his daughter, and his parents were at the party. His nephew G. arrived at 6 or 7 pm. R.C. left the party at 8 pm to put S.C. to bed as she had to go to daycare the next day. His nephew stayed until 9 pm. As it was a workday, R.C. testified that he did not drink at all at the party. He put S.C. to bed around 9 pm, which was later than her normal 8 pm bedtime at the time.

[123] Since she was four years of age at the time, he made sure S.C. washed herself properly if she took a bath and sometimes, he would help to wipe herself when she went to the washroom. He agreed that sometimes when he would help dress or bath her, he would help take her underwear off.

[124] He did not recall telling S.C. to remove her underwear that night. When asked if he recalled touching her vagina with his hands or mouth, he responded that he did not recall anything like that.

[125] R.C. said he did not recall ever going into S.C.'s room and touching her. He said he did not usually go into her bedroom at night but would do so if, after she turned 11, the television was too loud. He denied that he ever went into her bedroom to get the cat.

[126] R.C. testified that he did not drink alcohol often as he could not afford it. When S.C. was six years old, he had a job that started at 5:30 am, so his nephew G. would take her to day care in the morning for him. He worked Monday to Friday and some weekends. He acknowledged that he drank occasionally on his days off, when S.C. went to her mother's or friend's house. He testified that he never drank alone. He drank alcohol with friends on special occasions, such as birthdays. When he drank alcohol, which he said was not often, he drank beer from a bottle. He denied drinking Bacardi and said it was not in the house. He also denied drinking Twisted Teas.

[127] R.C. started to work for himself in 2019 so his schedule was more flexible. He worked Monday to Friday and sometimes on Saturday. This did not change his pattern of alcohol consumption.

[128] R.C. acknowledged that there have been times when he has become intoxicated. That started when he began to date his girlfriend 1.5 years earlier. If he drank to excess with her, it was at his house. When asked how often she was at the house, he said she came to the house every weekend and a couple of times during the week. He recalled once drinking in front of S.C. with his girlfriend at his sister's home at Christmas 2023. He testified that he and his girlfriend became intoxicated when they drank but it was not too often. He said that not too often meant once every two weeks. He said that S.C. would be at her mother's when they drank like this.

[129] He also testified that he had been intoxicated before he began dating his girlfriend. This happened when he visited with friends. S.C. would not be around when he drank with his friends; she would be with her mother or with different friends. He did not recall ever being intoxicated when S.C. was home. He never discussed his consumption of alcohol with S.C.

[130] In connection with sleeping routines, R.C. testified that his son, M.C., went to bed at 10 pm on weeknights but he would usually stay up to watch a movie. On weekends, he went to bed at 11 pm or 12 am but he would stay up. S.C.'s bedtime went from 9 to 10 pm on weeknights and 11 pm on weekends. If he had to go to her room to turn off the television, M.C.'s door was sometimes opened and sometimes closed.

[131] R.C denied ever bringing Dove lotion into S.C.'s bedroom. He did not use Dove lotion but used another product that he kept in his bedroom.

[132] R.C. testified that he knew B.T. for about eight years. He saw her about twice per week with S.C. when she came to the house. He said B.T. did not spend much time at their house. He said she slept over twice – the last time was sometime prior to Christmas 2023.

[133] He said B.T. was once caught vaping in the house and he told S.C. that if he caught B.T. again, she would not be allowed to hang out with B.T. He also told B.T. this in November 2023. He caught her vaping again near Christmas. He said he told S.C many times that she could not hang out with B.T. as she vaped and smoked marijuana. He said his son showed him B.T.'s posts on Snapchat and TikTok of B.T. using bongs.

[134] He testified that the last time B.T. was in their home was prior to Christmas 2023. He denied that there was alcohol in the home or that he was drinking. He denied making a comment about their "boobs". He said that S.C. and B.T. went to the YMCA from 5 to 8:30 pm and when they came home, they were in S.C.'s bedroom. He indicated that they came downstairs once for snacks.

[135] According to R.C., he went to S.C.'s bedroom once around 9 pm to see how they were doing. He opened the door and saw B.T. throwing up in a bucket. She said she was okay and he did not check on them again.

[136] M.C was out with his friends until 9 pm. When M.C. came home, he and R.C. played some videogames until about 11:30 pm and then he went to bed.

[137] He denied that he touched S.C. on January 9, 2024. He denied drinking that day, which is his son's birthday.

[138] He said he had a good relationship with S.C. As she got older, she spent more time with her friends. Their relationship was not strained although she was mad at him for a couple of weeks when he told her he did not want her to spend time with B.T.

ii) Cross-examination

[139] R.C. did not agree with the suggestion that his relationship with S.C. was strained as she got older. He said their relationship was not as good and they did not spend as much time together. He agreed that she had some "teenage girl attitude" but overall, they had a good relationship. He agreed that S.C. loved him.

[140] He did not agree that S.C. was often at B.T.'s home. He said she would sometimes go to B.T.'s home. He said that S.C. sometimes spent the night at B.T.'s home. He agreed that B.T. did not spend as much time at their home as when she got older, he did not allow B.T. to smoke in their home.

[141] R.C. was asked about his detailed recollection of his sister's birthday party and his evidence that he remembered it as she got a dog. When he was asked the name of the dog, his initial response was that he was not going to answer the question. When told he had to answer, his response was that he forgot the dog's name. He agreed that he initially did not want to answer the question as he did not want to disclose that he forgot the dog's name. He agreed that it would have made more sense for him to have answered that he did not recall the dog's name rather than initially refusing to answer the question. When asked about the breed of dog, he said it was small.

[142] R.C. agreed that there was nothing out of the ordinary about this birthday party other than his sister got a dog. He agreed that he could recall everyone who was at the party, the time his nephew G. arrived, that G. was at a skate park before he arrived, and that his sister was a little mad that his nephew was late. He also remembered the time he left the party and when he put S.C. to bed. He agreed that this was a normal parenting task at the time. He also agreed that he had a specific recollection that he had no alcohol at the party.

[143] He did not agree with the suggestion that it would not be possible to remember these kinds of details about an uneventful party. He disagreed that he remembered these details as something significant happened that night. He disagreed that the significant event was that this was the first time he sexually assaulted his daughter.

[144] R.C. was questioned about the night B.T. slept over at the house in 2023. He did not agree that B.T. and S.C. were in the same bed when he checked on them. His evidence was that B.T. was puking in a bucket and was sitting on the floor. S.C was on the floor as well. He stated that B.T. said she was okay and he took the bucket downstairs.

[145] He disagreed with the suggestion he was drinking that night. He disagreed that he made a weird comment about the girls' "boobs". He disagreed that he went into S.C.'s rooms numerous times that night waiting for the girls to sleep so that he could sexually touch them.

[146] R.C. was cross-examined about his alcohol use. He agreed that he did not have an issue with abusing alcohol when S.C. lived with him. He testified that he drank more when he was younger and not as much as he got older and had to work. He said that he did not drink as much after S.C. was born. He never considered himself to struggle with his use of alcohol.

[147] When asked if he ever got into trouble when he used alcohol, he said he did. He was asked about an interaction with the police in May 2013, just before S.C. turned two. He agreed that there was an occasion when the police approached him when he was intoxicated and cautioned him about being drunk while in public. He could not recall the date but recalled being cautioned.

[148] He agreed that there were times he drank to the point of being intoxicated. He agreed that this was when he had beer with his friends and said it was at social gatherings. When asked about going out, his evidence was that if he went to a bar, he would sometimes drink to the point of having a "buzz" but not to the point of being intoxicated. When asked if this was for the entire time that S.C. lived with him, he then said that he may have been drunk at a bar but he usually tried not to drink too much at a bar. When asked what he meant by intoxicated, he said he meant acting silly. He then again denied that alcohol abuse was an issue and stated that he did not drink much.

[149] He was then asked if he remembered an incident from October 27, 2019 at a bar at 3 am. He recalled the incident and agreed the police were involved. He agreed that when the police arrived, he was standing outside the bar with no shirt on. He testified that he got into a fight with someone who pulled his shirt off. He agreed that he was "buzzed" when the police arrived but said that if he was unsteady on his feet it was due to being in a fight and not because of the alcohol he consumed. He agreed that he smelled like alcohol but did not agree that he was swaying back and forth or that he had slurred speech. He agreed that the police might have been concerned that he was drunk in public but said they had no proof as a breathalyzer test was not administered. He agreed with the suggestion that while the police may have believed he was intoxicated, he in fact was not.

[150] He denied that he drank rum, but said his girlfriend did. She would sometimes bring spiced rum to the house. He said she brought Captain Morgan to the house but not Bacardi. He denied that he ever drank Twisted Teas or that it was ever in the house. He denied that he ever had whiskey in the house. He denied drinking vodka but said that his stepfather had brought it to the house. He disagreed that S.C. knew about Bacardi as she saw it at their home.

[151] R.C. did not agree with the suggestion that he drank more alcohol on weekends and sometimes during the week. He denied that there would be empty bottles around the house. He disagreed that he stayed up drinking on his own.

M.C.'s Evidence

[152] M.C. is R.C.'s son and S.C.'s brother. He was born in January 2007 and is 18 years of age. He testified that he lived with his father from the age of 12. He believed he moved in around 2018-2019. He did not see his mother very often. When he was 16, he had a girlfriend who would stay over at the house every couple of weekends. He would spend one overnight at her home every couple of weekends.

[153] When he first moved in, his bedtime was 9 pm. In grades 7 and 8, it was 10 pm. He went to bed later when he was in high school. He would go on his phone after he went to bed. He did not have a set bedtime on weekends. On average, he would be awake until 1 or 2 am on weekends.

[154] He said he had a good relationship with S.C. He said that S.C. looked up to their father and loved him.

[155] His evidence was that if his bedroom door was shut, he could still hear really well. He could hear anyone walk up the stairs as they were creaky. He never saw or heard anyone coming in and out of S.C.'s bedroom during the night – only when his father said goodnight. He also said his father would come upstairs if the television was too loud.

[156] He said he saw his father drink alcohol during the week, but it was usually just on weekends. He said it was not a "regular thing" - it would happen about every couple of weeks. He drank cans of beer. He said that S.C. was sometimes home when his father drank alcohol. He agreed that his father drank alone but he was present most of the time. He said he never saw his father drink more than six to eight drinks, but agreed that there were times he went to bed and his father would still be up.

[157] He agreed that sometimes his father would stay up later than him, but it was not often as he was up pretty late. He agreed that this was when he got older and that when he was younger, his dad was up later than him.

[158] His evidence was that alcohol was not kept at the house. He had seen bottles of Bacardi a few times that he his father bought. He also saw spiced rum that he thought his father's girlfriend brought to the house. His evidence was that his father started to date his girlfriend about five to six months before he was arrested, and when they drank together, she drank spiced rum.

[159] He denied seeing cans of beer around the house when his father drank as he said there was a recycling area in the kitchen. He agreed that his father drank mostly on the weekends but that it was not every weekend. He described it as a casual thing. His evidence was that his dad did not usually drink during the week as he worked but agreed that he would drink during the week from time to time. He did not agree that when his father drank, he saw him drink quite a bit. He said it was not an excessive amount. When asked what that meant, he said R.C. would drink 6 to 8 drinks between 7 pm and midnight or 1 am.

[160] He said that his father would usually buy a 6-pack of beer that he drank. He also sometimes bought the medium sized bottle of Bacardi. He agreed that sometimes he bought a smaller bottle but that was not often. He agreed that his father drank Twisted Teas which is more of a cooler. He saw him drink whiskey but that was rare. He did not know about vodka.

[161] He agreed that when his father drank alcohol, he became happier and looser.

[162] He knew B.T. for about two years. He did not see her at the house very often - about once every two to three weeks. He said that B.T. would spend the night when she came over. He also said that S.C. would be at B.T.'s house almost every weekend. He agreed that S.C. had other friends who slept over and denied that that he was confused about how often B.T. slept over. He agreed that he had a clear recollection that B.T. slept over quite a few times at their home. He did not agree that B.T. may have left after he went to bed.

[163] He recalled that B.T. came to their home before Christmas 2023 – it was right before he left for Costa Rica. He stated that she spent the night. He recalled that his father was home but could not recall if he drank that night. He agreed with the suggestion that his father could have been drinking that night, but he did not remember.

[164] He did not know when S.C. and B.T. went to bed that evening. He said he was up pretty late that night. He recalled that at around 7 or 8 pm, his father came upstairs to speak with S.C. He did not hear his father come up again and he said he could hear everything. He did not know that B.T. had been sick that night or that she was throwing up in a bucket.

[165] M.C. said he had a good relationship with his father. He said they were really close, that he missed him, and he agreed that he did not want to see him in trouble.

[166] He denied that his father told him what to say when he testified.

Position of the Parties

[167] The Crown argues that when R.C. abused alcohol, he would prey on his young daughter while she slept.

[168] It is the Crown's position that S.C.'s evidence of R.C. sexually assaulting her is reliable, credible, and should be believed. The Crown argues that any inconsistencies with S.C.'s evidence are with respect to peripheral matters and are to be expected given her age at the time of the alleged sexual assault. Furthermore, the Crown argues that there is an absence of evidence that S.C. had a motive to fabricate this evidence.

[169] The Crown argues that I should reject R.C.'s denials as his evidence was self-serving, and at times, implausible.

[170] The defence argues that R.C. was unshaken in his evidence, which was presented in a coherent and consistent manner. Defence counsel says his evidence should be accepted or, at minimum, it should raise a reasonable doubt.

[171] If I do not accept R.C.'s evidence that he did not sexually assault S.C. or if I am not left with a doubt, the defence contends that the totality of evidence presented by the Crown that I do accept is insufficient to establish R.C.'s guilt beyond a reasonable doubt.

Analysis and Findings

[172] I will first consider R.C.'s evidence. Based on the W.(D.) analysis, if I believe his evidence that he did not sexually assault S.C, or if I do not believe him but I am left with a reasonable doubt, I must acquit. This requires me to make credibility and reliability assessments regarding his evidence.

[173] There were consistencies in some of R.C.'s evidence with the evidence of other witnesses. For example, there was general consensus that S.C. lived with R.C. and had visits with her mother. There was a brief period in 2023 when she stayed with her mother after she engaged in some self-harming activity.

[174] There were also consistencies about who else lived in the home and for what periods of time. R.C. and S.C. testified about when G. lived in the house and when he moved out and M.C. moved in. There was also a general consensus about when S.C. and M.C. went to bed.

[175] Both S.C. and R.C. testified that S.C. had some attitude around her father as she got older but that they generally had a good relationship.

[176] There was consistency about the limited time B.T. spent at their home. R.C. agreed that while S.C. spent overnights at B.T.'s home, B.T. did not spend as much time at their home. There was no dispute that B.T. slept over one night prior to Christmas 2023.

[177] There was also consistency about what S.C. wore to bed. Both R.C. and S.C. testified that she wore pyjamas when she was younger and an "oodie", which was a sweater blanket, when she was older. They both testified that she had a big stuffed teddy bear that was on the end of the bed although R.C. said it was sometimes left on the floor.

[178] While R.C., S.C. and M.C. testified that S.C.'s and M.C.'s bedrooms were across from each other on the second floor, there was some slight discrepancy about the distance between the rooms. S.C. held out her arms in a bended fashion when she testified to show the distance whereas R.C testified that the doors were two feet apart.

[179] Despite these consistencies, there were other areas of R.C.'s evidence that I found to be problematic and leads me to find that he was not a credible or reliable witness and for that reason, I reject his evidence that he did not sexually assault S.C.

[180] I will start first with the evidence regarding R.C.'s consumption of alcohol which was a central focus given S.C.'s evidence that each time he sexually assaulted her he had been drinking.

[181] There were three areas of inconsistencies between R.C.'s evidence and S.C.'s and M.C.'s evidence regarding R.C.'s consumption of alcohol. The first was how often he drank, the second was what kind of alcohol he consumed and the third was with whom R.C drank. I consider these external inconsistencies to be troubling given the role alcohol is alleged to have played when the sexual assaults occurred.

[182] In my view, R.C. minimized how much and how often he drank alcohol to paint himself in a better light for the court. In closing submissions, the defence conceded that in some areas, R.C. was being evasive with respect to his alcohol consumption.

[183] In chief, R.C. testified that he did not drink alcohol that often as he could not afford it. His evidence was that he drank occasionally on his days off. Later in his evidence, R.C. said that he and his girlfriend drank and became intoxicated once every two weeks which he considered to be not too often.

[184] M.C.'s evidence was that his father drank every couple of weeks, mostly on weekends, but sometimes during the week. This was consistent with S.C.'s evidence.

[185] Drinking occasionally, before he started to drink more recently with his girlfriend every other weekend to the point of intoxication, as R.C. testified is inconsistent with the evidence of both M.C. and S.C. about how often R.C. drank. It is not a significant inconsistency but when considered together with the inconsistencies with what R.C. drank and with whom he drank, it is evidence of R.C. deliberately minimizing his alcohol consumption.

[186] A more significant inconsistency is with whom R.C. drank. In chief, R.C. testified that he did not drink alone but drank with friends on special occasions. He also testified that he drank alcohol with his girlfriend. This is inconsistent with M.C.'s evidence that his father did drink alone at home although M.C. was present.

[187] R.C. also insisted that he never drank in front of S.C. as when he drank with friends or his girlfriend in his home, she would be with her mother or with friends. He conceded that once at Christmas 2023, he consumed alcohol in front of S.C.

[188] This was inconsistent with both S.C.'s and M.C.'s evidence. S.C. said R.C. consumed alcohol in front of her. She was able to testify about what he drank. M.C. also said that S.C. was sometimes home when R.C. drank.

[189] This inconsistency is significant as again, M.C. was trying to distance himself from S.C.'s evidence that he was drinking each time he sexually touched her.

[190] There were also inconsistencies about what kinds of alcohol R.C. consumed. His evidence was that he only drank beer from a bottle. Both S.C. and M.C. testified that he drank beer from cans and that he also drank Twisted Teas, which is like a cooler. R.C. denied that he ever drank Twisted Teas. Both S.C. and M.C. testified about seeing Bacardi, a specific type of rum, in the house that R.C. sometimes drank. Again, R.C. denied that he ever drank Bacardi rum or that it was in the house. His evidence was that there was spiced rum in the home that his girlfriend would bring to the house as that is what she drank. Both M.C. and S.C. testified about seeing spiced rum in the house and M.C. testified that he believed that it was what R.C'.s girlfriend drank.

[191] When cross-examined, R.C. initially denied that he drank to the point of intoxication while out at a bar. He said he would drink until "buzzed" but not intoxicated which he defined as acting silly. His evidence then shifted, and he said that he may have been drunk at a bar, but he usually tried not to drink much at a bar. He was then asked about a fight he was in outside of a bar in October 2019. While he agreed that police were called and he was found without a shirt on outside the bar, he insisted that he was not intoxicated. He was defensive when it was suggested to him that he was intoxicated and he claimed that because the police did not administer a breathalyzer test, he was not impaired. I found that answer to be an odd response as whether or not a breathalyzer was administered was irrelevant to whether he knew himself to be intoxicated or not.

[192] Based upon these inconsistencies which I find were R.C.'s attempts to minimize how often and how much he drank, I do not agree with the defence that R.C. was forthcoming about the amount of alcohol he consumed, with whom he drank and what type of alcohol he consumed.

[193] I am satisfied that R.C.'s intention was to try to minimize how often he drank and how much he drank given S.C.'s allegations that whenever he sexually assaulted her, he was intoxicated.

[194] My second area of concern with R.C.'s evidence is with respect to when the first alleged sexual assault occurred, after his sister's birthday party about nine or ten years ago.

[195] Despite this party not being out of the ordinary, other than his sister getting a dog, R.C. was able to testify in remarkably precise detail about innocuous details, such as who was at the party, when his nephew G. arrived and left the party, and what time he put S.C. to bed that night. He also clearly recalled not drinking at that party.

[196] The precision of R.C.'s memory about a relatively uneventful birthday party nine or ten years ago seems implausible and for that reason makes me question its credibility and reliability. The degree of detail R.C. recalled of the party suggests that this is a memory that has been reconstructed rather than a genuine recall of events and also raises questions of the authenticity of that memory.

[197] What further buttresses my concerns of the authenticity of R.C.'s evidence about the party was his initial refusal to answer what was likely an unexpected question from the Crown. When asked about the name of the dog given to his sister at this party, which he said was the reason for his concise recall of the party, he initially refused to answer the question. When told he had to answer the question, he acknowledged he did not recall the name of the dog. He then conceded that he did not want to admit that he did not know the answer.

[198] I find that R.C. did not want to concede that he could not recall the name of the dog as that would be counter to the precise details of that evening that he said he did recall. As with wanting to paint himself in a good light with respect to his alcohol consumption, he also did not want to admit to not recalling the name of the dog as that might suggest he was not as accurate or reliable an historian regarding the party as he claimed.

[199] I do not agree with the defence that R.C.'s initial refusal to answer the question about the name of the dog was because he was nervous when he testified. He did not appear to be nervous but rather he was evasive and defiant when he initially refused to answer the question.

[200] R.C. was also defensive when he was cross-examined about the year M.C. moved into the home. This really should not have been an issue as nothing turned on the exact year as S.C., R.C. and M.C. all testified that M.C. moved in when G. moved out, and that M.C. was 12 years of age at the time. Nonetheless, several questions were asked about what year M.C. moved into the home. R.C. initially testified in chief that it was in 2016-2017, when M.C. was 12 years old. When it was pointed out to him that M.C. was born in 2007 and thus, he would have been 12 years old in 2019, there was a lengthy pause before R.C. responded that he did not agree with Crown counsel's math.

[201] My impression was that R.C.'s unnecessary defensiveness when cross-examined about the year M.C. moved in was because he did not want to concede any sort of error in his evidence so as not to concede any faults in his memory.

[202] R.C. also testified about the exact times that S.C., B.T. and M.C. were home the night B.T. slept over. There was an inconsistency between R.C.'s evidence and M.C.'s evidence in that regard as R.C. testified that M.C. was out until 9 pm and that when he got home, they stayed up playing video games before M.C. went to bed. When M.C. testified about the events of the evening, he did not testify about staying up with his father. Rather, his evidence was that he heard his father come upstairs at 7 or 8 pm, meaning that he was not out as R.C. testified.

[203] Given these inconsistencies and his evasiveness, I find that R.C. is not a credible or reliable witness and I reject his denial of not sexually abusing S.C.

[204] Following W.(D.), the next issue is whether his evidence, when I consider the totality of the evidence, leaves me with a doubt.

[205] I will start with a review of M.C.'s evidence.

[206] M.C. presented as a mature and thoughtful young man. He answered questions to the best of his ability and did not want to intentionally mislead the court. He clearly loves his father and acknowledged he did not want to see him in trouble. No doubt testifying was a difficult experience for him.

[207] I agree that M.C. did not embellish his evidence. Furthermore, given the inconsistencies between his evidence and R.C.'s evidence, there was no suggestion of inadvertent collusion or tainting of his evidence as a result of discussions with R.C. M.C. was forthcoming that he did not want to see his father in trouble which I consider to be a natural reaction from a teenage boy who clearly loves his father. I do not find that he was deliberately misleading when he testified.

[208] The purpose of M.C.'s evidence was firstly to address his observations of what he considered to be R.C.'s moderate drinking to counter to S.C.'s evidence that R.C. had a drinking problem and was intoxicated each time he sexually touched her. The second purpose was to support the defence's argument that R.C. did not have the opportunity to go into S.C.'s bedroom undetected by M.C. as S.C. alleged.

[209] The defence argues that M.C.'s evidence that he could hear really well even when his bedroom door was shut, that he could hear anyone walking upstairs as the stairs were creaky, that he spent most of his time living with R.C., that he was awake until 1 am or 2 am on weekends as he got older, and that starting in 2023, his girlfriend also spent alternate weekends at the home, should raise a reasonable doubt that R.C. sexually assaulted S.C. as he would not have had the opportunity to do so.

[210] S.C.'s evidence that the stairs made a noise was confirmatory of M.C.'s evidence. I also find that B.T.'s evidence of hearing R.C.'s voice from S.C.'s bedroom the night she slept over is also confirmatory of M.C.'s evidence that he could hear well even with his bedroom door closed.

[211] Based on M.C.'s evidence, he moved into the home in 2019 when he was 12 years of age. Based on S.C.'s evidence, the first sexual assault was in 2016 when she was four. The second sexual assault was two years later when she was six. At that time, her cousin G. lived in the home and not M.C. Therefore, M.C. was not living in the home at the time of the first two sexual assaults.

[212] Furthermore, while M.C. may have been awake later on weekends as he got older, that does not mean that R.C. did not go into S.C.'s bedroom when M.C. was asleep. M.C. agreed when cross-examined that there were times when he was up with R.C. when he drank that he went to bed before R.C. In my view, it is therefore possible that M.C. was sleeping when R.C. entered S.C.'s bedroom and sexually assaulted her. Furthermore, based on M.C.'s evidence, starting in 2023, there were weekends when he was not home as he spent time with his girlfriend. On those weekends, there was no one else in the home and R.C. could have entered S.C.'s bedroom undetected.

[213] Sexual interference involves the intentional touching of a child for a sexual purpose. It is not uncommon in cases involving adults who prey on and sexually exploit children for the assaults to take place in circumstances that may seem bold, such as in the presence of others. For example, a doctor was convicted of sexually assaulting a young child in a room adjacent to where the mother was waiting to be medically examined by the offender: (see Khan v. College of Physicians and Surgeons (Ontario), 76 C.C.C. (3d) 10).

[214] Thus, while it may appear to be implausible that R.C. would risk going into his daughter's bedroom located just two feet from his son's bedroom, it is that sort of risky behaviour that is not uncommon for a sexual predator, particularly one who was consuming alcohol at the time, thereby further impeding his judgment.

[215] There is also evidence that R.C. looked into S.C.'s bedroom several times the night that B.T. slept over that went undetected by M.C., who testified that R.C. only checked into the room once. For reasons that I will now address, I accept B.T.'s evidence of what she observed the night she slept over prior to Christmas 2023. Her evidence demonstrates that R.C. could walk upstairs and into S.C.'s bedroom without being detected by M.C. when he was home. For that reason, I reject the defence's argument that it is strange that M.C. did not see or hear anything given the number of times that S.C. said R.C. came into her bedroom and sexually assaulted her over the span of approximately nine years.

[216] There is no dispute that B.T. slept over one night prior to Christmas 2023. B.T. testified about R.C. looking into the bedroom several times that night. She was awake and said she could hear R.C.'s voice from which she concluded he was intoxicated. She testified that she also saw him drinking that evening. When she testified in chief, B.T. insisted that either that evening or the following day, she spoke to S.C. about R.C.'s behaviour and that S.C. disclosed to her at that time that R.C. touched her. She also testified that she told her mother at that same time about not only R.C. looking into the bedroom but also about S.C.'s disclosure to her.

[217] When she was cross-examined, she resiled from that position and agreed that S.C. might not have told her about what happened until a later date, Christmas or Boxing Day, which was after the sleep-over, but she did not remember the exact date.

[218] This is an internal inconsistency in her evidence. I am satisfied, however, that B.T. was mistaken about the date S.C. told her about S.C.'s father touching her, and that when she slept over and told her mother about R.C. coming into the bedroom, B.T. was unaware of S.C.'s allegation that R.C. sexually touched her. B.T.'s evidence of what she observed when she slept over was therefore not tainted by S.C.'s disclosure of the touching, which occurred sometime after B.T. reported R.C.'s behaviour to her mother.

[219] A.C. testified about when B.T. told her about R.C. coming into the bedroom during the sleep-over. It was the day after the sleep over, which was before A.C. was aware of S.C.'s disclosure.

[220] To be clear, what B.T. told A.C. is a prior consistent statement that is presumptively inadmissible. There are exceptions to that rule of inadmissibility which includes when the statement is used to rebut an allegation of recent fabrication: R v Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272. Allegations of recent fabrication need not be expressly made: Stirling at para. 5.

[221] In this case, the issue is the timing of when B.T. told her mother, A.C., about what occurred during the sleep-over and when S.C. disclosed to her that R.C. touched her. The prior consistent statement addresses whether B.T. fabricated the evidence of R.C. repeatedly looking into the bedroom the night she slept over only after being told by S.C. that R.C. sexually touched her. The prior consistent statement also addresses whether her evidence of what she observed was tainted by S.C.'s disclosure, if in fact S.C. disclosed to her that same day or the day after the sleep-over about R.C. coming into her bedroom and touching her. To be clear, the prior consistent statement is not admissible for its truth or to corroborate B.T.'s evidence at trial that R.C. came into the bedroom multiple times, which R.C. denies.

[222] According to S.C., she did not tell B.T. about R.C. coming into her bedroom and touching her until some time after the sleep-over. Based on that evidence, if accepted, when B.T. told her mother of R.C.'s conduct during the sleep-over, she did not know about S.C.'s allegation and thus her evidence would not be tainted by her discussions with S.C. Furthermore, if B.T. did not know of S.C.'s allegations about R.C., the timing of her report to her mother could also rebut the argument that she fabricated that evidence after S.C.'s disclosure to her.

[223] Both B.T. and A.C. testified that when B.T. told A.C. about R.C coming into the bedroom multiple times during the sleep-over, they were not concerned with R.C.'s behaviour. They both testified that they initially thought R.C. was just checking on the two girls. Neither of them was concerned at that time nor thought there was anything inappropriate or sinister about R.C.'s behaviour.

[224] Based on human experience, that response makes sense. A.C. and B.T. had known R.C. for many years. A.C. said she trusted him. Thus, she would not find it unusual for a parent to repeatedly check in on their child and her friend who was there for a sleep-over.

[225] Their response would certainly be different if, at the same time, B.T. also told her mother about S.C.'s disclosure that R.C. sexually assaulted her in her bedroom at night. A.C.'s response to B.T. telling her of R.C. looking into the bedroom several times would not have been as dismissive if she knew of the allegation that he was sexually assaulting his daughter at night.

[226] I therefore find that B.T. told A.C. what she observed during the sleep-over the day after the sleep-over and some time before S.C. disclosed to B.T and A.C. that her father had allegedly sexually assaulted her while she slept in her bedroom.

[227] The next issue is whether I accept B.T.'s evidence that R.C. came into the bedroom repeatedly during her sleep-over.

[228] I have concerns with the reliability of B.T.'s evidence of her observations of R.C.'s consumption of alcohol. She seemed to be very certain he had a problem with alcohol although she had only been to his home about 10 times. Given the evidence of the number of times that S.C. and B.T. discussed what occurred, I am concerned that B.T.'s evidence in that regard may have been inadvertently tainted by what S.C. told her of her father's drinking.

[229] I do not have the same concerns with inadvertent tainting of B.T.'s evidence of the observations she made of R.C.'s behaviour when she slept over, given the timing of the disclosure of these observations to her mother.

[230] I also find that there is no evidence that B.T. had any animus towards R.C. and thus a motive to fabricate her evidence of what she observed the night of the sleep-over. B.T. testified that R.C. was a good dad who did everything for S.C. She also denied knowing that R.C. did not want her to spend time with S.C.

[231] With respect to the video that B.T. uploaded to social media after she spoke to police, while some might question why two young girls would post such a video, both B.T. and S.C. testified about their regular use of both TikTok and Snapchat, which included uploading videos they made.

[232] Both B.T. and S.C. testified that they were not concerned with the public knowing that R.C. had been charged, which might be counter to some people's notion of privacy. However, given the ubiquity of the use of social media by many, particularly youth, and what I consider to be the accompanying erosion of the concept of privacy, I accept both B.T. and S.C.'s evidence of why they posted the video and that it is not evidence of animus leading to a motive to fabricate.

[233] During closing, defence counsel conceded that there was no evidence of a motive to fabricate. To be clear, R.C. has no onus to prove any witness has a motive to fabricate. Furthermore, even if there was an absence of evidence of motive to fabricate, that does not mean that a witness does not have a motive to fabricate. Just because a witness has no apparent reason to lie, does not mean that the witness must be telling the truth: R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 27 and 29. To be clear, I therefore do not find B.T. to be credible just because there is an absence of evidence of a motive to fabricate but it is a factor I have considered in assessing B.T.'s reliability and credibility.

[234] Thus, while I place no weight on B.T.'s evidence of R.C.'s consumption of alcohol, in the absence of any other challenge to her credibility, I accept her evidence of what she observed the night she slept over. This evidence supports S.C.'s evidence that R.C. could enter her bedroom at night undetected by M.C., even when M.C. was home.

[235] Having considered all the exculpatory evidence, R.C.'s denial of not sexually assaulting S.C. does not leave me with a reasonable doubt.

[236] That does not end my analysis as I must still determine, based on the evidence that I do accept, whether the Crown has proven R.C.'s guilt beyond a reasonable doubt. This requires me to consider the reliability and credibility of the evidence of the witnesses called by the Crown.

[237] I have already considered B.T.'s evidence and accepted as credible and reliable her evidence of seeing R.C. repeatedly look into S.C.'s bedroom the night of the sleep-over.

[238] I will now turn to S.C.'s evidence. I found that she generally answered questions put to her in a direct and clear fashion. Other than an issue of whether or when she opened her eyes after waking up when R.C. was touching her, she was not shaken when cross-examined on the core of her allegation that when intoxicated, R.C. would come into her bedroom and touch her breasts or buttocks and her vagina.

[239] For the most part, S.C. answered questions put to her in a direct and succinct fashion. She also readily agreed with various suggestions put to her in cross-examination such as that the stairs leading to her bedroom made noise and that she was angry with her father when he told her she could not spend time with B.T. As these were admissions that could have had an adverse impact on the reliability of her evidence, it demonstrates her willingness to be forthcoming and credible in her evidence.

[240] The only inconsistency identified by the defence is when S.C. opened her eyes and what she saw. The defence argues that this inconsistency goes to the core of the offence and on that basis, I should find that S.C. is not a reliable witness and should therefore raise a reasonable doubt. The defence also argues that S.C. embellished her evidence about the weird smell and the lotion that R.C. brought into the bedroom to make her story more believable.

[241] I will start first with what was the main challenge of S.C.'s evidence – whether and when she opened her eyes and what she observed. She told the police, and she testified in chief that when she woke up, she would initially have her eyes closed and pretend to be asleep as she did not want to see R.C.'s penis. She also told the police that after initially keeping her eyes closed, she would start to move and then sit up and ask R.C. what he was doing. Although not specifically asked, I assume she opened her eyes when she sat up and asked R.C. what he was doing.

[242] The defence argues that if S.C.'s eyes were closed, she could not have seen that R.C.'s hand was near his "private area" or crotch as she told the police. When asked about this on cross examination, she said she would open her eyes a bit and could see his hand near his crotch. Her evidence then shifted back to what she initially told the police – that she did not know where his other hand was when he touched her.

[243] In her statement to the police, S.C. did not say that she saw R.C. touching himself when he touched her. When pressed about the weird smell, she told the police that R.C. could be touching himself and that as he was touching her, he was probably touching himself. When asked if she had seen him touching himself, she told the police she had not.

[244] I do not find, therefore, that this was an inconsistency that leads me to conclude that S.C. is not a credible or reliable witness. S.C. was a very young girl who was woken up from her sleep. No doubt she was scared and confused when she woke up to her father touching her. The only inconsistency was in cross when she initially said she saw his hands near his crotch as she opened her eyes a bit. She then resiled from that evidence and admitted that she did not see where his hand was. I do not consider that to be a material inconsistency as her evidence to the police was that it was, in essence, an assumption she made.

[245] The defence argues that there was also an internal inconsistency in S.C.'s evidence as if her eyes were closed, as she told the police, she would have been unable to see R.C. move from sitting on the end of the bed to being at the side of her bed as he moved from touching her vagina to touching her breasts. What was not clear to me, nor was S.C. asked, is when she opened her eyes. She told the police her eyes were initially closed when she woke up but that she would then start to move and sit up and R.C. would know she was awake.

[246] It makes sense that a young girl would initially want to keep her eyes closed and that she was fearful of possibly seeing her father's penis. What was not explored, however, is when she opened her eyes and thus, it is possible that when she did eventually open her eyes, she could have seen R.C. move from one position to another. To be clear, S.C. was never asked if her eyes were closed the entire time until R.C. left the bedroom.

[247] I do not consider it to be a material inconsistency that S.C. initially testified when cross-examined that she may have opened her eyes a bit to see R.C.'s hand near his crotch and then conceded that she did not see where his hand was. The exact moment she opened her eyes as her father was sexually touching her is the sort of detail that might be missing from a child's recollection of such a traumatic event and does not detract from her reliability and credibility as a witness.

[248] The defence also argues that the evidence of a weird smell that S.C. could not describe but thought it might be "cum" and her observations of a Dove lotion bottle was added to embellish her story and boost her credibility as the implication was that R.C. must have been touching his penis and that is what she smelled and that he used the lotion when he touched her.

[249] First, the defence argues that she did not tell the police about smelling alcohol. That is not correct. She did in fact tell the police about smelling alcohol the last time he touched her.

[250] I do not find that these details were an embellishment to bolster S.C.'s credibility. First, I note that S.C. never testified that she saw R.C. using the lotion in her bedroom. Second, her description of a weird smell and nothing else is not the sort of detail that could be considered a detail that would enhance her credibility.

[251] There was an inconstancy between M.C.'s and S.C.'s evidence about whether R.C. drank an excessive amount of alcohol to the point of intoxication. In my view, they could have seen R.C. drink the same amount and one testify that the amount consumed was not excessive and the other view it to be excessive. The evidence of M.C. and S.C. was generally consistent on how often R.C. drank, what he drank, and that he appeared happier and looser when he drank. I do not consider the differences in their evidence of whether this meant R.C. had a drinking problem to be an inconsistency, but rather a difference in how they each subjectively interpreted what they observed.

[252] While I have found the precision and clarity of R.C.'s memory of the details of his sister's party that he said was eight or nine years ago to be problematic for the reasons expressed above, I do not have the same concerns with S.C.'s recollection of when the first assault occurred. This would have been an extremely traumatic event for S.C. which in my view is a basis to accept why she was able to recall when the first sexual assault occurred.

[253] S.C. was not shaken when cross-examined on the core of her allegation. She testified about the specific details of what occurred including what part of her body R.C. touched and whether it was over or under her clothing. While there may have been an inconsistency about when she opened her eyes and what she may have seen, she never resiled from the core of her allegations that her father sexually assaulted her by touching her vagina, putting his finger inside her vagina, and touching her breasts and her buttocks. I find that based on the totality of the evidence, she was both a credible and reliable witness.

Conclusion

[254] After considering inconsistencies in her evidence, I find that S.C. was a credible and reliable witness on the evidence which makes out the elements of the offences before the court.

[255] With respect to the first count, I find that R.C. intentionally applied force in a sexual nature on S.C, that she did not consent to the force, and that R.C. knew she did not consent, contrary to s. 271 of the Code.

[256] With respect to the second count, I find that R.C. knew S.C was under 16 years of age and that on multiple occasions, he touched for a sexual purpose, contrary to s. 151 of the Code.

[257] R.C. is therefore guilty of both counts.

L. Shaw J

Released: September 15, 2025