Court File and Parties

Court File No.: CR-24-08 Date: 2025-09-24 Ontario Superior Court of Justice

Between: His Majesty the King – and – M.G., Defendant

Counsel: W. Beatty, for the Crown D. Baker, for the Defendant

Heard: September 8 and 9, 2025

Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. Any information that might serve to identify the complainant has been removed from these reasons to permit their publication.

Ellies J.

Reasons for Decision

Overview

[1] M.G. is accused of sexually touching the complainant when she was a child. The Crown alleges that while the accused was living with the complainant and her mother, he touched the complainant's breasts, buttocks, and vagina under her clothing on three or four occasions.

[2] These reasons explain why I am unable to conclude beyond a reasonable doubt that the offences occurred.

[3] I will discuss the evidence before briefly discussing the law. I will then examine the evidence in light of the law to explain my conclusion.

The Evidence

[4] The complainant and the accused were the only two witnesses called during the trial.

The Complainant's Evidence

[5] The complainant is now 17 years old and attending college. When she was 10 or 11 years old, the accused was living with the complainant, her mother, the complainant's natural brother, and one of the complainant's stepbrothers at an address in South River. The complainant's mother and the complainant's father were separated. The complainant and her natural brother spent half their time living with their mother and half their time living with their father.

[6] The complainant testified that the home in South River had a firepit in the back yard that the family used during the summers. She testified that on three or four occasions, she found herself alone with the accused at the firepit in the evening, after her mother and her brothers were in their bedrooms. The complainant said that the accused offered her alcoholic coolers to drink on those occasions and that, once her head began to get fuzzy, the accused would bring her to a couch in the basement of the home. There, they would lie down and the accused would grope the complainant's breasts under her clothes. He would then place his hand under the complainant's pants, where he would cup her "butt" and then her vagina.

[7] The complainant testified that she would bring the touching on the couch to an end by telling the accused that she had to go to the bathroom. She would then go to her bedroom. However, she said that the accused would follow her into the bedroom and would continue to touch her in the same way until she would eventually "pass out". When she woke up in the morning, the accused would be gone.

[8] According to the complainant, the only thing the accused would say to her during these incidents was not to tell her mother or that she would get into trouble.

[9] During cross-examination, the complainant testified that, based on the year in which the accused and her mother broke up, these incidents occurred in the summer of 2019. She would have been 11 years old at the time.

The Accused's Evidence

[10] The accused categorically denied the complainant's accusations during his testimony. He explained that he met the complainant's mother in 2016 via a dating website, while he was living and working in North Bay. At the time, the mother lived in Sundridge with three of her children.

[11] About six months after they started dating, the accused began to live with the complainant's mother. In the spring of 2018, the accused and the complainant's mother moved from the Sundridge home to the home in South River. At some point, they were engaged to be married.

[12] The accused testified that he began to work for his present employer in 2017, first through another employer as a sub-contractor, and then as a direct employee beginning in 2018. He testified that he began working on a project at the Darlington nuclear power generating station, located about two and one-half to three hours away from South River, in or about that year. He continued to do so until 2020. His schedule required him to work on the weekdays there, but he would usually have weekends off. When he did, he would return to the home in South River. Because the complainant and her brother would be at their father's every second week, the accused would not see them on those weekends unless he managed to get home on Friday night before they left for the week.

[13] The accused testified that he, the complainant's mother, and the children did use the firepit during the summers. He and the complainant's mother both smoked and they would enjoy a drink and have a chat at the fire when he got home from work. The accused said that he preferred to drink beer, but that the mother drank a bit of everything. He had no specific recollection about the mother drinking coolers, but did not deny that she did. The accused did, however, adamantly deny that he ever supplied alcohol to the complainant.

[14] The accused could not recall any specific bonfire as opposed to any other. He said that the children would come out to the fire, but the youngest boy would go to bed early. Although he agreed with the complainant that there was a couch downstairs in the South River home, and that it was in a common area near a bedroom, he was clear that the bedroom was used by the complainant's mother and the accused, and not by the complainant's brother. The accused strongly denied ever taking the complainant into the home as she alleged or doing any of the things she accused him of doing there.

[15] Both the accused and the complainant testified that the relationship between the accused and the complainant's mother ended after the second summer at the South River home. The accused testified that the relationship ended in early 2020. The complainant's mother suffered from mental health issues. According to the accused, during their relationship, the mother had threatened to kill herself by overdosing on pills after they had an argument. He testified that he was required to restrain the complainant's mother to prevent her from harming herself. Although he said that the children were present in the room at the time, the complainant had no recollection of witnessing such an event.

[16] According to the accused, the relationship between the accused and the complainant's mother ended when the mother again attempted to take her own life. The mother's sister called the accused while he was working out of town and told him that the mother had been hospitalized as a result of the attempt. The accused decided during the call that he was ending their engagement. Although he tried to retrieve his belongings from the South River home without a confrontation, he was unsuccessful. Because the children were not with their mother at the time, he never said goodbye to them before he left South River with his belongings to live in Darlington.

[17] It would be two years before these charges were brought to the accused's attention. By then, both the accused and the complainant's mother had moved on to new relationships.

The Law

[18] I leave the evidence now to briefly discuss the law.

[19] While the law relating to sexual assault in general is complex, it is not so in this case. Here, the issue is not whether the complainant consented to the acts alleged; she was too young to do so. Instead, the issue is whether the events happened at all. To arrive at a conclusion in that respect, I am required to apply the law that governs the burden of proof imposed upon the Crown and the assessment of credibility of witnesses.

[20] The Crown must prove each and every element of each offence alleged beyond a reasonable doubt. As judges consistently instruct jurors, a reasonable doubt is not a frivolous doubt, one conjured up to avoid a difficult task. It is a doubt grounded in the evidence. It is a doubt that prevents the trier of fact from being sure of an accused's guilt.

[21] To determine whether the Crown has met its burden, I must examine the evidence as a whole. If, after examining all the evidence, I accept the evidence of the accused, he must be acquitted. If I do not accept all the evidence of the accused, but if I am left with a reasonable doubt by that evidence, I must also acquit the accused. Even if I am not left with a reasonable doubt by the accused's evidence, I must still acquit him if I am left with a reasonable doubt based on the rest of the evidence: R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at p. 409; R. v. B.D., 2011 ONCA 51, at para. 96.

[22] With this legal backdrop in place, I turn now to my examination of the evidence.

Analysis

[23] I begin my analysis with the observation that both witnesses in this case were believable ones.

[24] The complainant presented as both intelligent and articulate. She was not prone to exaggeration or embellishment. She was not given to histrionics. Instead, she cried quietly while testifying about the sexual assault and otherwise managed to retain her composure.

[25] I am unable to agree with counsel for the accused's submission that the complainant's demeanor changed significantly while she was being cross-examined about why she would be fabricating the allegations. In my respectful view, her demeanor was appropriate for someone whose credibility was being forcefully challenged. She did not appear to harbor more animosity towards the accused than would be appropriate to the allegations.

[26] As for the accused, he appeared to be sincere throughout his testimony. He did not appear to be trying to "sell" his version of events. He was appropriately contrite when questioned about leaving the complainant's mother at a time when she most needed companionship. He did not overreact when questioned during cross-examination about "grooming" the complainant. He gave his evidence in a consistently candid way.

[27] In short, there was nothing about the way in which the witnesses testified that made the evidence of either of them more, or less, believable.

[28] However, I do have some concerns about the substance of the complainant's evidence. They do not relate to inconsistencies between the complainant's testimony in court and any statement or evidence she has given before about the allegations. I am again respectfully unable to agree with counsel for the accused that discrepancies about whether the complainant was wearing underwear or whether there were ever any fires on weekdays are central to the allegations. In my view, they are not. Nor do I believe that it is significant that the complainant cannot remember whether she was touched three or four times or even that she cannot remember any particular fire or its aftermath: R. v. W.R., [1992] 2 S.C.R. 122, at para. 27; R. v. H.(D.), 2016 ONCA 569, at paras. 50 and 53.

[29] What concerns me are not the inconsistencies, but the implausibilities in the complainant's evidence. I am bothered by two, in particular.

[30] First, I find it implausible that the complainant would not be wearing underwear at age 11 on any of the occasions that the assaults were alleged to have occurred. When asked about what she was wearing at the time the assaults took place, the complainant testified that it "would have most likely" been leggings and a t-shirt. In cross-examination, she admitted that she did not have a clear recollection of what she was wearing. However, although she had testified at the preliminary hearing that she did not remember whether she was wearing underwear, at trial, she testified that she believed that she was not wearing any underwear during any of the alleged assaults.

[31] I do not consider it to be stereotypical thinking to believe that it is normal for an 11-year-old child to wear underwear: R. v. Krug, 2024 SCC 7, at paras. 36-37. At the very least, the complainant's evidence in this respect required some explanation. There was none.

[32] By itself, this implausibility may be much. However, it ties into and takes on greater significance because of my second concern, which relates to the implausibility that each occurrence would be exactly the same as the last. While it might be possible that each incident would be similar, there were too many variables at play to make it plausible that precisely the same thing would happen each time.

[33] To begin with, it seems implausible that the accused would take the complainant to the couch in question on any occasion. Although the witnesses differ on exactly who slept in the bedroom downstairs, someone did. It was either the complainant's older brother or the complainant's mother. If the complainant could be sexually assaulted for lengthy periods of time in her bedroom, it seems implausible that the accused would bring her to a couch not far from an occupied bedroom to do so. Even though the accused is alleged not to have removed the complainant's clothes, his hands were still either up the complainant's shirt or down her pants. The possibility of detection was simply too great to accept that the accused would do this on any occasion, let alone on every occasion.

[34] I also find it difficult to accept that the accused would offer the complainant alcohol on each occasion and that the complainant would accept it. Of course, it is possible that the complainant liked the taste of the cooler, which she described as being like a rainbow popsicle. However, given her evidence that it made her feel fuzzy and led to being assaulted, it seems implausible that, on each occasion, the complainant readily accepted the accused's offer.

[35] Again, some explanation would have helped. It might have made sense if the complainant had said that she liked the way the alcohol made her feel or that the accused insisted that she drink. However, she said neither of these things.

Conclusion

[36] In R. v. W.R., the Supreme Court of Canada instructed trial judges that frailties in the evidence of an adult witness testifying to events that occurred when the witness was a child must be considered in context. In this case, the complainant is not yet an adult and was testifying about events that happened only about six years ago. Nonetheless, even considering the age of the complainant at the time the events are alleged to have occurred, I am unable to overcome the concerns I have expressed when determining whether the Crown has met its burden of proof beyond a reasonable doubt.

[37] For this reason, I am required to find the accused not guilty of either charge on the indictment and acquittals will therefore be entered on both.

M.G. Ellies J.

Released: September 24, 2025