Court File and Parties

Court File No.: 23-11404835

Date: 2025-10-31

Ontario Superior Court of Justice

Between:

His Majesty the King

and

D.A., Accused

Counsel:

M. Soucy, for the Crown

J. Coulter, for the Accused

Heard: September 3, 4, 5, 8, and 9, 2025

Reasons for Judgment

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code. These reasons have been anonymized and may be published.

Rees J.

Overview

[1] The accused, D.A., is charged with six counts in relation to the complainant, K.H.: two counts of invitation to sexual touching, two counts of sexual interference, and two counts of sexual assault. D.A. was in a relationship with K.H.'s mother, H.H., at the time of the alleged offences and living with them.

[2] At trial, the Crown called evidence from K.H., H.H., and a forensic scientist regarding DNA recovered from K.H.'s underwear.

[3] D.A. elected to testify in his defence.

General Framework: Burden and Assessment of Evidence

Burden of Proof

[4] The Crown bears the burden of proving each element of the offences charged beyond a reasonable doubt. This burden never shifts to the accused.

[5] A reasonable doubt is not based on sympathy or prejudice; it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: see R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39. The Crown is not required to prove a criminal charge to an absolute certainty, but the court must be satisfied based on all the evidence, of the guilt of the accused beyond a reasonable doubt.

[6] In considering the totality of the evidence, I have applied R. v. W.(D.), [1991] 1 S.C.R. 742. This case turns primarily on the credibility of the complainant and the accused. As such, W.(D.) requires the following:

a. First, if I believe the evidence of the accused, I must acquit.

b. Second, if I do not believe the evidence of the accused but I am left in reasonable doubt by it, I must acquit.

c. Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[7] The principles in W.(D.) apply whenever the court is presented with evidence inconsistent with guilt, whether adduced by the Crown or by the defence (through cross-examination of the Crown's witnesses or through a defence witness): R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 105.

[8] It bears emphasizing that my task is not to determine which of two versions of an event is more believable; it "is to determine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt": R. v. T.A., 2020 ONCA 783, at para. 28.

Assessment of Credibility and Reliability

[9] The term "credibility" has to do with a witness's veracity, honesty, or truthfulness. The term "reliability" has to do with a witness's ability to accurately observe, recall, and recount the events at issue: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. I must consider both dimensions of a witness's evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 526. After assessing credibility and reliability, I may believe all, some, or none of a witness's evidence: R. v. François, [1994] 2 S.C.R. 827, at p. 837.

[10] In assessing the credibility and reliability of the complainant and accused, I have considered the non-exhaustive criteria summarized by the Court of Appeal in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-14.

Assessment of Evidence of a Child Witness

[11] K.H. was a child at the time of the alleged offences and when she testified. I must therefore assess her evidence as a child witness.

[12] Courts have recognized that children should not be held to the same exacting standard of an adult witness: R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55. A child witness should be assessed using criteria appropriate to the child's mental development, understanding, and ability to communicate: R. v. W.(R), [1992] 2 S.C.R. 122, at p. 134. There is no fixed formulaic approach to the assessment of a child's evidence – the trier of fact should assess both the strengths and weaknesses using common sense. Negative stereotypes should not be applied to the evidence of children: R. v. Marquard, [1993] 4 S.C.R. 223, at p. 225.

Analysis

[13] Broadly, the Crown alleges that D.A., when K.H.'s mother was absent from the home, invited K.H. to touch his penis and on other occasions D.A. anally penetrated or attempted to anally penetrate K.H. with his penis. D.A. denies this.

Assessment of D.A.'s Credibility and Reliability

[14] D.A. testified that he and H.H. met through Facebook Dating at the end of 2019 or the beginning of 2020. He visited her apartment a couple of times to hang out, watch movies, and to talk. D.A. moved into H.H.'s apartment with H.H. and K.H. when the COVID-19 pandemic lockdown started in 2020.

[15] D.A. testified that when he first moved in, it was just the three of them. About a year and a half into his relationship with H.H., K.H.'s father, M.M., moved in temporarily and slept on the living room couch.

[16] D.A.'s routine was to play video games – he described himself as being addicted to them. He was unemployed, though he occasionally did odd jobs.

[17] D.A. testified that his role in the house was as a babysitter for K.H. He would occasionally cook meals.

[18] D.A. testified that he would babysit K.H. when H.H. was at work, mostly when she was on the way back home.

[19] When D.A. first moved into their apartment, H.H. did not work. He could not recall when she got a job. He ventured it was late 2021 or 2022 but could not remember. He stated he was "really bad with dates". According to D.A., H.H. was on social assistance. Her father passed away and left her an inheritance, which she relied on until she found work.

[20] D.A. testified that he was not involved with K.H. in the beginning. They would hang out, but most of the time he would remain in the bedroom he shared with H.H. and do his own thing. Once H.H. got a job, K.H. often took care of herself.

[21] D.A. was not certain, but he recalled that once H.H. got a job, K.H. was in school. He recalled H.H. leaving for work around 8:30 or 9 a.m. He recalled dropping K.H. off at the bus stop with H.H. a lot of the time and H.H. would then go to work.

[22] D.A. testified that he was not often alone with K.H. in the morning. H.H. would be there most mornings and take K.H. to the bus or all three of them would go together.

[23] D.A. testified that K.H.'s father would be around almost every day in the summer to take her to the park or the store or to enjoy the summer with her.

[24] Once H.H. started working, it was D.A.'s job to cook, but other than that K.H. was quite independent.

[25] D.A. testified that during the school year, he would not be alone with K.H. for longer than 25 or 30 minutes. In the morning, 15 to 20 minutes would be taken up with getting her ready for school, preparing her lunch, and getting out the door.

[26] D.A. denied directing K.H. to touch his penis in bathroom. He denied touching her in a sexual way in the bathroom. He denied touching her with any part of his body.

[27] D.A. denied taking photos of K.H. with her clothes on and off in sexually suggestive ways. He denied introducing K.H. to men on digital devices for a sexual purpose. D.A. denied taking pictures of K.H. in the bathroom.

[28] D.A. denied directing K.H. onto her stomach on his bed for a sexual purpose. He denied touching K.H. for a sexual purpose. He denied pressing his penis against K.H. at all. He denied ejaculating on K.H. or in K.H.'s presence. He denied all the sexual activity that K.H. alleged occurred in the principal bedroom.

[29] D.A. testified that he never directed K.H. to do anything sexual.

[30] With respect to his semen being found on K.H.'s underwear, D.A. testified that there was always laundry in the bathroom and that there was a possibility that K.H.'s clothes were in the bathroom. He has no specific memory of the most recent time he ejaculated in the bathroom, but it was his private place to masturbate. K.H.'s laundry was everywhere in the home: in the bathroom, living room, principal bedroom, and K.H.'s room.

[31] D.A. had no specific memory of K.H.'s underwear being in the bathroom while he masturbated. He stated that he never paid attention to the clothes in the area.

[32] He testified that if he had an accident while masturbating and did not get his ejaculate in the toilet, he would move clothes on top of the ejaculate and then move it afterwards.

[33] On cross-examination, the Crown challenged D.A. that he was minimizing how involved he was with K.H. D.A. denied this. He testified that K.H. was pretty independent, especially when H.H. went back to work.

[34] Although he had difficulty recalling dates, he thought it was around November or the end of 2021 when H.H. went back to work.

[35] D.A. acknowledged on cross-examination that, at that time, K.H. was six or seven. She did not get on the bus by herself. Someone always had to take her to the bus. D.A. testified that K.H. made her own meals very often, was very independent, and took care of herself.

[36] On cross-examination, D.A. acknowledged that when he first met H.H., K.H.'s father was not involved. D.A. tried to be the main father figure and was responsible for K.H. He made meals and sometimes got her on the bus. He also acknowledged that they lived in the same home for three years and he had no full-time job during that time. He admitted that he described himself during his police interview as a stay-at-home dad.

[37] D.A. testified that H.H. was hardworking once she got a job. He agreed on cross-examination that H.H. worked a lot. He initially stated that he could not remember H.H. working full time, all the time. But on further cross-examination, he acknowledged that H.H.'s job at a pharmacy was full time, as was her job at a retail store. He also acknowledged that H.H. sometimes worked evenings, and she sometimes worked early mornings depending on her shifts. He admitted that H.H. left early, at 5:30 or 6 a.m. She would wake him with a phone call reminding him that K.H. had to get ready.

[38] On cross-examination, D.A. testified that H.H. had a dentist appointment on the Wednesday morning. H.H. was gone for an hour or hour and a half. He was alone with K.H.

[39] On cross-examination, he stated that he only masturbated in the bathroom. He did not masturbate in K.H.'s bedroom. He watched pornography of topless, adult women on his phone. He held his phone in his hand while masturbating seated, facing away from the toilet. He would masturbate while H.H. was not home.

[40] He testified that he did not intentionally use K.H.'s underwear to clean up his ejaculate. He agreed that doing so would be "creepy".

[41] He testified on cross-examination that he would pick up laundry and throw it on top to clean up his ejaculate in the bathroom. Most of the time it was his laundry or H.H.'s laundry. Whenever he or H.H. took a shower, they tossed clothes in a pile close to the toilet. These clothes would be the ones he would use to clean up the ejaculate.

[42] I do not find D.A. to be a credible witness. First, he was not forthcoming about how much time H.H. worked and how much time he spent alone with K.H. He downplayed both. The opportunity for D.A. to have committed the offences was a key point on his evidence.

[43] His evidence on this point was not consistent. At first, he testified that he was not often alone with K.H. in the mornings, that her father spent time with her almost every day in the summer, and that during the school year D.A. would not be alone with K.H. for more than 25 to 30 minutes. When challenged on cross-examination, his evidence changed. He acknowledged that when H.H. was working, he would be alone with K.H. in the mornings. He would also be alone with K.H. after school when her mother was working evenings.

[44] His initial evidence about the amount of time he spent alone with K.H. was also contradicted by H.H., whose evidence I do accept. H.H. had the most accurate and complete recollection of her schedule. I find that D.A. had ample time with K.H. when H.H. was working.

[45] Second, his evidence about how his semen was found on K.H.'s underwear was not credible. It was vague and unspecific. D.A.'s evidence amounted to there being only a possibility that K.H.'s underwear was in the bathroom when he masturbated. He had no specific memory of the most recent time that he ejaculated in the bathroom, though he testified that it was his private place to masturbate. While he stated that K.H.'s laundry was everywhere in the home, including the bathroom, he had no specific memory of K.H.'s underwear being in the bathroom. He also denied having intentionally used K.H.'s underwear to clean up his ejaculate when he missed the toilet bowl.

[46] Based on this, I find it highly implausible that D.A. used K.H.'s underwear to cover his ejaculate if he missed the toilet bowl. Further, D.A.'s explanation does not leave me with a reasonable doubt that there was cross-contamination of K.H.'s underwear from other clothes D.A. used to cover his semen if he missed the toilet bowl. I find that D.A.'s evidence in this regard strains credulity. Finally, as I discuss below, I do not accept that K.H. wore to the hospital dirty underwear that she picked up from the floor of the bathroom.

[47] Finally, D.A.'s admission that he watched pornography of topless, adult women on his phone while masturbating in the bathroom is a telling detail that supports K.H.'s evidence about what D.A. liked to watch and where he liked to watch it. As discussed below, K.H.'s evidence was that D.A. liked to watch pornography of naked women while he directed her to masturbate him in the bathroom. Although on D.A.'s evidence, he was alone when doing so, there is no explanation in the evidence for how K.H. would have known his sexual proclivities. I find that this undermines the credibility of D.A.'s denials regarding the sexual activity with K.H. in the bathroom.

[48] In short, I do not find D.A. to be credible, and his evidence does not raise a reasonable doubt in my mind. I also reject D.A.'s evidence "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence". Here, that conflicting credible evidence is the evidence led by the Crown: R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252, at para. 54. As emphasized by the Ontario Court of Appeal in R. v A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 32:

There is nothing inherently wrong, and much right, with a trial judge contrasting and comparing evidence with an accused's evidence. Engaging in this kind of contrast and comparison does not in and of itself reflect a misplacement of the burden. To the contrary, engaging in this exercise will often reflect a proper consideration of an accused's evidence in light of the evidence as a whole, including a complainant's evidence (citations omitted).

[49] My conclusion in respect of D.A.'s evidence does not end my analysis. I must ask myself whether, on the evidence I do accept, the Crown has proven its case beyond a reasonable doubt.

[50] This brings me first to the evidence of the complainant. In brief, I find that K.H. was a credible and reliable witness on the core elements of the offences. I am satisfied beyond a reasonable doubt by her evidence on the core elements.

[51] Second, H.H. provided the most reliable and credible evidence of her work schedule. D.A. had ample opportunities to commit the offences.

[52] Third, the forensic evidence supports K.H.'s account.

[53] Based on all this evidence, I find that the Crown has proven the alleged offences beyond a reasonable doubt. I discuss this evidence in more detail below.

Assessment of K.H.'s Credibility and Reliability

[54] K.H. was between five (nearly six) and eight at the time of the alleged offences. She was eight when she gave her police interview, which was admitted at trial under s. 715.1 of the Criminal Code. She was 10 when she testified at trial.

K.H.'s Evidence to Police

[55] K.H. described that D.A. sexually abused her when her mother was at work or out of the home.

[56] K.H. described two locations of the sexual activity, the bathroom and the principal bedroom.

[57] K.H. first described the bathroom incidents. She told police how about 10 minutes would pass after her mother left for work. D.A. would tell her to go to the washroom and he would pull down his pants and make her touch and hold his penis with her hand. She told him she did not like it and told him not to, but he did not listen to her. He made her do it.

[58] K.H. explained how, most of the time, D.A. yelled K.H.'s name, told her to go to the bathroom, and he came in. He pulled down his shorts and his boxers, but they did not come completely off. He made K.H. hold his penis. D.A. pulled his phone out of his pocket and put naked women on his phone. K.H. described D.A. putting his phone on the ledge of the toilet tank.

[59] K.H.'s own clothes stayed on. She stood facing D.A., who would be standing too, so that she saw his penis.

[60] She knew what D.A. put on his phone while the sexual touching occurred because, although she did not watch, she listened to it. She did not like it. That said, she described seeing that in one video, a woman put a penis in her mouth.

[61] K.H. described her masturbating D.A.'s penis with one hand. K.H. described holding his penis and moving "really fast" with her hand. He would make her do it for a couple of minutes and her hand and arm would hurt. She told him so and he just told her to keep going.

[62] Afterwards, K.H. stated that D.A. would tell her to wash her hands. He would remain in the washroom for a little bit longer, then come out and go play video games.

[63] K.H. also described in her police interview how, on other occasions, D.A. would call her into the principal bedroom. He would usually stand behind her while she was lying on the bed, and pull down his shorts and boxers. He put his penis into her behind and pressed really hard. She would tell him to stop and would start crying because he was hurting her.

[64] K.H. explained that, afterward, D.A. would tell her to go clean up her behind and sometimes would tell her to go into the shower. To clean herself up, she would take some toilet paper and clean up her behind. She would then go to the living room and hug her cat because whenever D.A. would press his penis into her behind, it hurt and she was in so much pain.

[65] K.H. told police that when D.A. told her to take a shower, he would go to turn on the shower and tell her to take a shower, even if she objected. D.A. sometimes stayed while K.H. showered. K.H. stated to police she did not like this because she needed her privacy.

[66] K.H. explained that when she cleaned her behind, she was cleaning up the same thing that came out of D.A.'s penis when she masturbated him. She described it as "white stuff", looking "like spit, but it's not". She was not sure what it was.

[67] K.H. explained to police that her mother had a cracked tooth and went to the dentist a few days before the police interview. Although she was not entirely sure which day her mother went to the dentist, she ultimately thought her mother did so on the Wednesday of the week she reported the abuse to the police. She explained that her mother went to the dentist for about an hour, but came back because she had taken a painkiller and needed to wait before having the procedure. K.H. and D.A. were cleaning when her mother returned to the apartment. Her mother had to go back to the dentist in the afternoon to have her tooth pulled.

[68] K.H. stated to police that 10 minutes after her mother went to the dentist, D.A. called her into the principal bedroom. D.A. put his penis into her behind and pressed really hard. K.H. started crying and told him to stop, but he did not listen to her. K.H. told police that on the day that her mother went to the dentist, there was a spot on the bed that was wet, but she does not think the spot was there by the time of the interview.

[69] After D.A. had finished, he told K.H. to go clean herself up.

[70] K.H. told police that D.A. would engage in the bedroom sexual activity whenever her mother went out to work.

[71] When police asked K.H. if D.A. ever spoke to her about the sexual touching, K.H. stated that she asked him why he was doing this to her. K.H. stated he said that, "It's for the future. It's for when you're older."

[72] K.H. was interviewed by police on Friday, July 7, 2023. After some confusion in K.H.'s mind about the exact weekday, she told police that D.A. pressed his penis into her behind in the principal bedroom on the Wednesday of that week. She also alleged that, at his direction, she masturbated D.A. in the bathroom on the Monday of that week.

K.H.'s Evidence at Trial

[73] K.H. gave evidence at trial over the course of two days. Her cross-examination began on the afternoon of the first day. It was put to her by the defence that her evidence to the investigating officer was that the sexual touching in the principal bedroom probably occurred on the Wednesday and that D.A. directing her to masturbate him in the bathroom probably happened on the Monday. It was put to her that she was not sure, and she agreed. She also agreed that her memory was not good. She agreed that the Wednesday bedroom incident and the Monday bathroom incident might not have happened at all.

[74] The defence asked K.H. if those events did not happen on those days, where did it come from in her memory. She replied, "I honestly don't know."

[75] The defence asked whether it was possible that she made it up to get D.A. out of the house because she wanted her dad back. K.H. answered, "I have no clue". When pressed, she answered, "Maybe".

[76] This is critical evidence. K.H.'s answers to this part of the cross-examination highlighted that I must treat her evidence with caution.

[77] I was attentive to the questions and K.H.'s answers and was observing K.H. closely. It was not clear to me that she was, in fact, agreeing that the sexual assaults never occurred at all and that she was intending to adopt the suggestion that she was fabricating the allegations to get D.A. out of the house because she wanted her father back. This is particularly so because she had earlier in her cross-examination clearly and articulately rejected this suggestion using her own words. Her later answers had a different quality – they were equivocal and unclear.

[78] I therefore raised this issue with the defence on the morning of the second day of cross-examination. Without directing defence counsel in his cross-examination, I invited him to address the point. Defence counsel properly acknowledged that the issue had been left muddied and he would address it in his continued cross-examination.

[79] When returning to this issue on the second day, the defence reminded K.H. that they (she and the defence) had previously concluded that D.A. did not put his penis on her bum on the Wednesday because they had been cleaning the house during the whole hour. K.H. agreed. She also agreed that the sexual touching she said happened on the Wednesday did not happen. But it remained unclear whether she was simply agreeing that it may not have occurred on the Wednesday, rather than agreeing it had not happened at all.

[80] Defence counsel also returned to the Monday bathroom incident. K.H. testified that she believed her mother was at work. She agreed that she was not sure. She agreed she might have been at home. She also agreed with the conclusion that if her mother was at home on the Monday, then it could not have happened on the Monday.

[81] K.H. then agreed that the bathroom touching may not have ever happened.

[82] But with respect to the bedroom sexual activity, K.H. was unequivocal: "No, in the bedroom, that stuff did happen." She agreed that it did not happen on the Wednesday. She then suggested that the bedroom sexual activity might have happened on the Monday, but then indicated it had been a while and she could not remember.

[83] In my view, K.H. was doing her best to recall the precise timing of these events at a remove of over two years but could not do so.

[84] K.H. confirmed that she recalled sexual activity in the bedroom that happened before the Wednesday and that it did happen, she simply could not recall when. She disagreed that D.A. pressing his penis into her behind in the bedroom only happened one time. She was clear that it happened a lot of times. She could not be sure how many times, but that it happened more than once.

[85] K.H. explained that she was "just really tired" when answering the questions on the bedroom incidents on the first day of cross-examination but that she was more sure on the second day of her cross-examination.

[86] Finally, it was put to her that she had not testified too much about what happened before the Wednesday in the bathroom and K.H. answered that she could not really remember.

[87] Later in the cross-examination, the defence returned to this issue. The defence put to K.H. that she may not have lied but may not have told the truth:

Q. Okay. So, if we go back and think about the more serious stuff you talked about, again, maybe you didn't lie about what happened in the bathroom, but you didn't...

A. Yeah.

Q. ...tell the truth about it, right?

A. Yeah.

Q. Okay. And——and again, I know I've asked you this a few times, but is——is it possible that you were not telling the truth about what happened in the bedroom, too?

A. I remember that he did it to me in the bedroom and the bathroom.

[88] From this, it was not clear to me whether K.H. was adopting the suggestion that she was not telling the truth about the bathroom incident or simply acknowledging the question given the inconsistency of her answers. I therefore raised this with the defence in the absence of the complainant. The defence agreed to clear it up.

[89] K.H. then testified on cross-examination that she did not believe D.A. had made her touch his penis on the Monday but she recalled that it did happen on another occasion. When pressed, she provided details of a bathroom incident – specifically, that D.A. put naked women on his phone in the bathroom and made her touch his penis. She also testified that, with reference to the bathroom, D.A. "sometimes" touched her and it made her uncomfortable. And she recalled the bedroom sexual activity happening. She confirmed that D.A. did put his penis on her bum in the bedroom. She also confirmed that D.A. made her touch his private part in the bathroom and that "he used to touch me in the bathroom, sometimes".

[90] On re-examination, K.H. testified that she remembered cleaning the apartment with D.A. on the Wednesday. She also remembered the sexual activity in the principal bedroom happening on the Wednesday, though she was less certain as to the timing. K.H. explained that she told her mother what D.A. was doing to her and wanted to show her mother what D.A. left on the bed, but it was gone by the time H.H. came home. She described what D.A. left on the bed as "white", but she did not know what it was. She believed he had left the deposit on the bed the same day as her mother went to the dentist, but she could not be sure. But she explained D.A. had left the deposit on the bed the same day that K.H. told her mother.

[91] K.H. testified on re-examination that she specifically recalled that on the Monday, D.A. used his phone to put her on a website with a bunch of old men, who talked to her, and it was "really disgusting" and made her "really uncomfortable". K.H. explained that D.A. would do that once in a while but not all the time. She explained that he put her on the phone with the old men before the bathroom sexual activity.

[92] When the Crown explored this further, K.H. testified that she was lying on her bed in her bedroom. D.A. came into her room. He put his phone in her face and there were really old men and younger men on his phone. D.A. swiped. The men on the phone were talking. They said "hi" to her and asked her to do "weird stuff". She explained that they asked her to take her shirt off and do stuff. K.H. described her interaction with the men on D.A.'s phone as "really creepy and uncomfortable" and she was "really grossed out".

[93] K.H. testified that she reacted by starting to cry and she did not want to be on the website with the old men. She told D.A. to stop, but he did not take his phone away. She went to the bathroom. D.A. followed her to the bathroom with his phone and stood there with his phone with the "weird people on it" while she was going to the toilet. D.A. kept putting his phone where her face was.

[94] K.H. testified that she then returned to her room and she thinks D.A. stopped, but she could not recall. K.H. testified that what happened with the old men only happened once.

[95] Finally, on re-examination, K.H. testified that on more than one occasion D.A. also took photos of her in her bedroom. He would tell her to take her clothes off –tops and bottoms – and to bend over. D.A. would take photos of her on his phone. She saw a flash. She was not comfortable with D.A. taking these photos without her consent and told D.A. that she did not want her picture taken. D.A. did not say anything and continued taking the photos. K.H. has not seen the photos he took.

[96] Following this, on further cross-examination, K.H. confirmed that this was the first time that she had disclosed that D.A. took photographs of her in her bedroom. She explained she did not disclose this on her first day of cross-examination when the defence asked her whether there were other incidents because she was very tired. When pressed, K.H. was unable to explain why she had not disclosed during the police interview what occurred with D.A. in the bathroom prior to the touching on the Monday. K.H. also confirmed that she had not told anyone else about this, including her mother, before she disclosed these events at trial.

[97] K.H. agreed on further cross-examination that it was shortly after D.A. followed her into the bathroom with his phone that he made her rub his penis.

[98] When challenged about her account of the incident in the bathroom when D.A. followed her in with his phone and showed her the old men on the phone, K.H. was firm that it had happened. She was also firm and convincing that D.A. had also taken photos of her before that Monday. She testified that he had taken lots of photos over the three years of her behind without her clothes on.

Ruling Regarding the Admissibility of the New Allegations

[99] K.H. had not previously disclosed that D.A. had used his phone to put her on a website with old men before the sexual activity in the bathroom nor that he took sexual photos of her in the bedroom. K.H.'s initial disclosure of these events arose during the Crown's re-examination. She did so spontaneously in response to questions about why she thought the bathroom incident occurred on the Monday. Her new disclosure took the Crown and defence by surprise.

[100] This led to an objection from the defence on the basis that none of this evidence nor the questions the Crown posed arose from anything on cross-examination, particularly with what happened on the Monday. In effect, the defence argued that it was a new line of examination.

[101] The Crown argued that it did relate to the cross-examination about what happened in the bathroom. Relying on R. v. W.W., 2025 ONCA 115, the Crown argued that the showing of pornography constituted grooming activity and was part of the invitation to sexual touching offence under s. 152 because this offence is largely about grooming the complainant before a sexual assault occurs. The offence was particularized in three ways on the indictment, invite, counsel or incite. The Crown argued it was also persuasive evidence of the interference count because grooming can be preparatory to committing a sexual assault or sexual interference.

[102] The defence argued that K.H. had not testified that it was a pornographic website, but that if it is, the defence agree that it could be construed as grooming.

[103] The defence asked for an opportunity to cross-examine on this evidence once the Crown completed K.H.'s re-examination.

[104] For oral reasons given, I ruled that the evidence was relevant and admissible. First, it was relevant for the timing of the Monday bathroom offence. It helped answer why K.H. recalled that a bathroom incident occurred on the Monday – because she recalled that D.A. had used his phone to put her on a website with old men before the sexual activity in the bathroom. Second, it was relevant to ss. 151 and 152 as potential evidence of grooming.

[105] Arising as it did on re-examination, neither the Crown nor the defence raised an issue about whether the new disclosure could be considered discreditable conduct evidence. Even if they had, I would have held that it was admissible given that the probative value of the proposed evidence outweighs its prejudicial effect.

[106] The Crown alleges that D.A. engaged in ongoing sexual abuse with the complainant. The new disclosure was part of the sequence of events surrounding the offences D.A. is alleged to have committed in relation to the complainant. It was part of the same course of conduct.

[107] This was a judge alone trial. The risk of moral and reasoning prejudice is greatly reduced in judge-alone trials: R. v. B. (R.T.), 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 27, 33; R. v. J.H., 2018 ONCA 245, at paras. 23-24. There was virtually no risk of reasoning or moral prejudice to D.A. I was not distracted by the evidence nor have I engaged in any improper reasoning because of this evidence.

[108] In closing submissions, the defence agreed it was admissible and relied on it to argue that it shows an inconsistency in K.H.'s evidence, affecting her credibility and reliability. K.H. told police in her interview that, most of the time, when D.A. directed her to touch his penis in the bathroom, he yelled her name and told her to go to bathroom. But K.H. testified on re-examination that on the Monday incident, D.A. followed her into the bathroom with his phone after putting her on the website with older men.

[109] I disagree that there is a contradiction undermining K.H.'s credibility. In her interview with police, she was describing how D.A. got her to go to the bathroom most of the time. In her police interview and at trial, K.H. was describing recurring sexual abuse in the bathroom, not a one off. In this context, it is not inconsistent for K.H. to have earlier stated that most of the time D.A. yelled her name and told her to go to bathroom, but on a particular occasion he followed her in there with his phone.

[110] Even if I were to agree that this was an inconsistency, it would be relevant to her reliability as to the timing of the bathroom incident. But an inconsistency would not negatively affect my evaluation of K.H.'s veracity that the bathroom abuse occurred on more than one occasion, nor that D.A. used his phone to put K.H. on a website with old men who asked K.H. to remove her shirt. The precise sequence of events that led K.H. to be in the bathroom; specifically, whether she entered the room first, or D.A. did, on one particular occasion, is a peripheral detail that, in my view, does not detract from K.H.'s overall reliability and credibility: see R. v J.G., 2022 ONCA 452.

[111] I find that K.H. could not accurately remember the timing of the last bathroom incident. It may not have occurred on the Monday. But I find that this is because there was more than one incident in the bathroom when D.A. invited the complainant to touch his penis and she masturbated him. Because there were multiple incidents of this offence, the dates became unclear to her and she conflated the sequencing between two different occasions when D.A. directed her to touch his penis and she masturbated him in the bathroom. As this court has observed, "Common sense and human experience tell me that a person's memory of repeated incidents of assault will eventually consolidate into a more generalized memory, particularly where the events occur close together in time and share common elements": R. v A.G., 2025 ONSC 2412, at para. 19.

[112] Finally, I reject the Crown's submission that the evidence that D.A. used his phone to put K.H. a website with old men who asked K.H. to take off her shirt is evidence of the actus reus of invitation to sexual touching under Counts 1 and 4. It cannot be evidence of the actus reus under Counts 1 and 4 because these counts were particularized as D.A. having invited K.H. to touch his body. They were not particularized as D.A. having invited K.H. to touch her own body.

[113] I pause here to observe that I am satisfied beyond a reasonable doubt that D.A. used his phone to put K.H. on a website with old men who asked K.H. to take off her shirt. I am also satisfied beyond a reasonable doubt that D.A. took sexual photographs of K.H.

K.H.'s Story of D.A. Keeping a Schedule

[114] K.H. initially told police that D.A. kept a little paper with a schedule of the sexual abuse. She described the paper as having the days of the week listed with the letters of the day, and that D.A. would check them off whenever he abused her. She told police that sometimes she would sneak to his desk in the middle of the night and change the dates because she was tired of the abuse.

[115] When challenged by the investigating officer, K.H. changed her account. She stated that when D.A. turned around, she would take the piece of paper and she would look at it to see when he would abuse her and then sneak it back in his pocket.

[116] K.H. then corrected herself that she snuck her piece of paper for school in his pocket but then she took it back.

[117] When the investigating officer returned to the schedule later in the interview, K.H. amended her account again to state that she forgot that it was her school schedule. She also stated that she took it out of D.A.'s back pocket and put it in her room.

[118] The defence challenged K.H.'s account of the schedule at trial. K.H. answered on cross-examination that she did not remember a piece of paper with a schedule. It was evident K.H. was having difficulty at trial recalling her exchange with the investigating officer about the schedule and that the interview transcript was not refreshing her memory.

[119] She testified on cross-examination that she did not know why she changed her account to the investigating officer from it being D.A.'s schedule to being her paper.

[120] The defence put to K.H. that she made this up and there was no schedule. She agreed that she did not think she was telling the truth about the schedule to the investigating officer. She could not explain why she made it up.

[121] I find that K.H. was not being truthful about the schedule in her police interview. It is obvious from K.H.'s police interview that she confabulated about the schedule. But her lack of truthfulness about the schedule does not undermine her credibility on the core allegations.

[122] First, there is a marked difference between the quality and detail of her account to police regarding the schedule and her account of the sexual allegations. Her accounts of the sexual abuse in the principal bedroom and the bathroom are specific and coherent. There are telling details about her account of the abuse that lends considerable weight to her account, as I discuss below. By contrast, the internal incoherence and shifting account of the schedule, and even the way she was speaking, makes it apparent she was fabricating her account of the schedule during the police interview.

[123] Second, at trial K.H. did not seek to perpetuate the story about the schedule. Nor did K.H. seek to evade or deflect questions about it. She was genuinely perplexed by this part of her police interview. She answered questions on this issue on cross-examination directly and honestly. She conceded that she did not think she was telling the truth about the schedule to the investigating officer. As she agreed on cross-examination, children mature with age.

[124] Third, as I discuss below, when I consider her evidence about the sexual abuse itself, I find that K.H. was credible and reliable.

Animus/Motive to Fabricate

[125] The defence explored on cross-examination whether K.H. had a motive to fabricate her allegations.

[126] K.H. had drawn a picture of her between her mother and father, and depicted D.A. having fallen on the ice. She testified that she drew that picture because she was not happy with D.A. She had a lot of hatred for D.A.

[127] K.H. acknowledged on cross-examination that she wished her parents to get back together. She also agreed that D.A. was standing in the way of that. She also agreed that she wanted D.A. out of her life. She explained that she drew the picture because she was angry with D.A. and wanted him out of her life. She also acknowledged on cross-examination that a few days before she spoke to the police, D.A. had taken away either her Nintendo Switch or phone. She agreed with the defence suggestion that is when she decided to tell her mother about what was happening.

[128] But K.H. was clear that she did not make the complaint to her mother about D.A. because she thought doing so would get her dad to move in. She was mad and was tired of D.A.'s sexual abuse and wanted D.A. gone and out of her life.

[129] I accept K.H.'s evidence that she did not fabricate the allegations about D.A. out of animus or because she was motivated to get her parents together. It is normal for a child of her age to wish her parents to get together again, but her evidence was clear and convincing that she did not report the allegations to get D.A. out of the house so that her father could move in. Rather, she reported the allegations because she was tired of D.A.'s abuse of her. I am not left with a reasonable doubt in this regard.

[130] In the end, K.H.'s dislike for D.A. has little forensic value because if K.H. was abused in the manner alleged, her admitted antipathy towards D.A. is "not a motive to lie, but rather a consequence of the truth": R. v P.V., 2015 ONCJ 815, at para. 146.

[131] K.H. also explained the timing of her complaint to her mother elsewhere in her evidence. She testified that D.A. had left something on the bed of the principal bedroom and that she wanted to show it to her mother, but it was gone by the time her mother came home. (It is plain that K.H. was referring to a deposit of semen.) I find this detail to be a credible explanation as to the reason for why K.H. complained when she did, particularly when juxtaposed against her evidence that she was tired of D.A.'s sexual abuse.

K.H. Was Credible and Reliable Regarding the Sexual Abuse

[132] I have considered K.H.'s evidence with the utmost caution and I ultimately find that K.H. was both credible and reliable on the nature and core details that:

a. On multiple occasions D.A. pressed his penis into K.H.'s behind. Given the pain that she described, I find that K.H. is describing D.A. anally penetrating her. I also find that D.A. ejaculated into her anus or onto her anal region.

b. On multiple occasions, D.A. directed K.H. to touch his penis and masturbate him in the bathroom.

[133] As to the timing of the last time D.A. directed K.H. to touch his penis and masturbate him in the bathroom, I am not persuaded that it occurred on the Monday. I believe that K.H. was likely mistaken of the date. But I am nevertheless persuaded beyond a reasonable doubt that this touching occurred on other occasions.

[134] I am also satisfied beyond a reasonable doubt that the last time D.A. anally penetrated K.H. in the principal bedroom was on the Wednesday when she disclosed the abuse to her mother.

[135] For the following four reasons, I accept K.H. evidence on the core allegations beyond a reasonable doubt.

[136] First, her evidence on the core elements of the sexual activity was compelling and coherent.

[137] I must assess K.H.'s evidence bearing in mind her age, mental development, and ability to communicate, and I must not treat frailties in her evidence that are explicable on this footing as proof of deceitfulness or inaccuracy on essential matters. A contradiction in a child's testimony should not be given the same effect as a similar flaw in an adult's testimony. "While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it": R. v. B. (G.), [1990] 2 S.C.R. 30, at p. 55.

[138] I find that the inconsistencies in her evidence—especially about the bathroom sexual abuse—are attributable to the passage of time, the confusion induced by a skillful cross-examination, and the fatigue she was experiencing because of the stress of testifying.

[139] The defence argued that K.H. was suggestible. She was, but only in the sense that she sometimes expressed agreement with points on cross-examination that she was not truly adopting as her own evidence. As the Supreme Court of Canada has recognized, a skillful cross-examination is almost certain to confuse a child, even if they are telling the truth: R. v. C.C.F., [1997] 3 S.C.R. 1183, para. 48.

[140] K.H. was not suggestible in the sense that anyone had led her to fabricate her evidence. There is no evidence before me that this is so.

[141] When K.H. testified in her own words—rather than adopting statements being put to her—her evidence regarding the core elements of the abuse was cogent and clear. By the time her answers were clarified on the second day of cross-examination, she was firm as to the core elements of the sexual abuse. She recalled both the bedroom sexual touching and the bathroom sexual touching.

[142] Based on K.H.'s evidence, I am satisfied beyond a reasonable doubt that D.A. penetrated her anally in the principal bedroom on several occasions. It was ongoing abuse.

[143] Although K.H.'s memory of the bedroom sexual abuse was clearer, she was still able to provide significant detail about the bathroom sexual touching. She did so on re-examination at trial when she testified about the incident that occurred after D.A. put her on a website in which she interacted with old men. And she gave a compelling account of the bathroom sexual touching in her police interview when her memory was fresh. Her police statement now forms part of her evidence at trial.

[144] Further, I am satisfied that D.A. directed K.H. to touch his penis and masturbate him in the bathroom on more than one occasion. Although K.H. could not recall on cross-examination how many times the sexual abuse in the bathroom occurred, it was clear from her answer that it was not a singular incident. When the defence asked her how many times it occurred in the bathroom, K.H. replied, "Oh, I have no clue over the——over three years, I don't really think so." There is a clear implication, which I accept, that the bathroom abuse was repeated and ongoing, and that K.H. could not recall how often the bathroom abuse had occurred in the period she knew the accused.

[145] The ongoing nature of the bathroom abuse is also apparent in how K.H. described the abuse in her police interview. For example, as discussed, K.H. referred to how D.A. would yell her name and tell her to go into the bathroom, most of the time. The implication is that there was more than one incident in the bathroom and that D.A. had a pattern of how he would direct her, but it was not invariable. K.H. also explained that "sometimes" she could not really move her arm and her hand because of how sore they got masturbating D.A. Again, the implication is plain that there were other occasions when her arm did not get that sore. In another example, K.H. stated to police that when she first met D.A., he was really nice, but then he "started" making her touch his penis in the bathroom. The reference to "started" implies ongoing sexual touching in the bathroom. Without intending to be exhaustive, I raise these as illustrative of how K.H. conveyed the ongoing nature of the bathroom incidents.

[146] Second, K.H. testified to highly believable and telling details of the sexual activity, specifically:

a. How her hand and arm would hurt and grow tired from masturbating D.A.

b. How he would watch pornography of women on his phone in the bathroom while she masturbated him, facts consistent with D.A.'s own evidence regarding what he watched when he masturbated and where he did so in the home.

c. How white stuff came out of his penis when she masturbated him and after he had penetrated her anally. How this white stuff was like "like spit, but its not".

d. How her behind would really hurt after he penetrated her anally, so much so that she would cry.

e. That she would wipe her behind with toilet paper afterwards to clean herself up. On other occasions, D.A. would make her take a shower.

f. That when K.H. asked D.A. why he was touching her sexually, he stated that "It's for the future. It's for when you're older."

[147] There is no evidence before me that K.H. would be familiar with these sexual details other than through the sexual activity with D.A. she testified to. Although the defence asks me to consider that children are more aware of sexual activity today than they were at one time, K.H.'s knowledge of these telling details is not consistent with what an eight- and ten-year-old would know about the sexual activity she described.

[148] Third, K.H.'s account that there were ample opportunities for D.A. to engage in sexual activity with her while her mother was at work is consistent with H.H.'s evidence of her work schedule.

[149] Finally, while I do not place undue weight on K.H.'s demeanour, she presented as a witness who was trying to be truthful and helpful. She did not seek to evade, dissemble or deflect questions on cross-examination: see R. v D.V., 2025 ONCA 723, at para. 5.

[150] The defence argued that progressive disclosure regarding details surrounding the sexual abuse undermines her credibility. In this regard, the defence pointed to K.H.'s progressive disclosure (i) at the preliminary inquiry that D.A. touched K.H. inappropriately and (ii) at trial that D.A. put K.H. on his phone with old men and took sexual pictures of her. The defence argued that a truthful witness would not have changed her evidence with the significant addition of these details.

[151] I reject this submission. It is not uncommon for new details of sexual abuse to emerge gradually, including at trial, and especially in the case of child complainants. Much depends on the questions asked by an interviewer or by counsel at trial. We should not expect eight- or ten-year-old children to be linear or comprehensive in their account of sexual abuse. Here, I do not draw a negative inference against K.H.'s credibility or reliability from her progressive disclosure of the details of the abuse.

D.A.'s Opportunity to Commit the Offences

[152] I find that D.A. was often alone with K.H. and had ample opportunity to commit the offences.

[153] As discussed, it was K.H.'s evidence that the abuse occurred when her mother was out for work or, in one instance, at the dentist. In her police interview, she stated that the bathroom incidents occurred approximately ten minutes after her mother left home. She also stated that D.A. pressed his penis into her behind every day her mother was at work. On the day her mother went to the dentist, she recalled that ten minutes passed before D.A. called her into the principal bedroom because she could read the time. As discussed, she provided additional evidence at trial.

[154] K.H. agreed at one point on cross-examination with the suggestions put to her that the sexual activity with D.A. occurred in the morning but never in the afternoon because K.H. was at school or because her mother might be at home with her.

[155] That said, when I consider K.H.'s evidence as a whole, I find that her evidence was more open-ended and generally unspecific as to the time of day of the ongoing sexual incidents. It is not unusual for children of K.H.'s age to have difficulty placing events within a time of day. K.H.'s evidence does not leave me with a reasonable doubt as to D.A.'s opportunity to commit the offences.

[156] Moreover, the best evidence establishing that D.A. was often alone with K.H. in the mornings and evenings comes from H.H. I find H.H. to be both a reliable and credible witness. She had a good memory of her working hours and her evidence on this point was cogent and unshaken on cross-examination.

[157] She testified that D.A. moved into her apartment as soon as the COVID-19 lockdown happened in March 2020. H.H. was not working at the beginning of lockdown and did not start working until November 2021. K.H. was home from school during the lockdown.

[158] H.H. testified that during the first year and a half of D.A. living with them, he would never have been alone with K.H. unless H.H. ran to the store for a couple of minutes. But starting in November 2021, D.A. would be alone with K.H. every day unless H.H. was not working and at home.

[159] In November 2021, H.H. started working full-time as a cashier at a pharmacy. She worked there until January 2022, just shy of her three-month probationary period. She would work between 8 a.m. or 8:30 a.m. until 4 p.m. or 4:30 p.m. Sometimes she would open the pharmacy between 7:30 a.m. and 8 a.m., and sometimes she would only finish work around 5 p.m.

[160] When H.H. was working at the pharmacy, she would leave home around 6:30 a.m. Depending on whether she took an uber or bus, she would get home around 6:30 p.m. or between 7 p.m. or 7:30 p.m.

[161] D.A. was aware of her work schedule for the most part.

[162] H.H. started work at a retail store in February 2022. She worked there until July 2023, when K.H. disclosed the allegations of abuse.

[163] Between February 2022 and April 2022, K.H. worked part time at the retail store. Starting in April 2022, she began working full time there. She worked eight or nine hours at a stretch. In March 2023, she became a coordinator/supervisor and worked longer hours. She worked 10 or 12 hours a shift. She closed the store.

[164] When H.H. first started at the retail store, she was not home in the morning quite a bit. Once she was promoted to coordinator/supervisor in March 2023, she started working more evenings. She would only get home at 11 p.m. or 11:30 p.m.

[165] H.H.'s schedule was consistent. She had every second weekend off. If she had a weekend off, she worked on Monday to Friday. If she worked on a weekend, she would be off two days during the week.

[166] D.A. was aware of her schedule. She would tell him in advance.

[167] She would leave for work at the retail store around 7:20 a.m., before K.H. got on the bus.

[168] K.H.'s father lived with them sporadically between October or November 2021 until March 2022. He would stay, briefly leave for a month or so, then come back. When he was living with them, K.H.'s father was usually gone before K.H. went to school. He would usually leave before five or six in the morning. He would come back when he felt like it in the evening, if he came home at all. K.H.'s father was never there to put her on the school bus.

[169] H.H. testified that when she was working at the pharmacy and then the retail store, she would not take K.H. to the school bus unless she was off work. She would often call D.A. in the morning before work and remind D.A. to get K.H. ready and to the bus. She would speak with K.H. in the morning and wish her a great day. Sometimes the calls would be brief.

[170] I accept this evidence. I find that D.A. had opportunities to commit the offences in the morning before K.H. went to school and in the evenings when she came home from school before her mother got home from work in the periods of November 2021 to January 2022, and February 2022 to July 2023.

[171] As for the alleged Monday bathroom incident, I am not persuaded that the bathroom incident occurred on the date alleged. It was Canada Day. I accept H.H.'s evidence that she was likely off work that day and that K.H. spent the day with her father. I also accept H.H.'s evidence that it was unlikely she left K.H. alone with D.A. on the Monday evening.

[172] That said, this does not mean that D.A. did not direct K.H. to touch his penis and that K.H. masturbated D.A. in the bathroom on other occasions. I find that it simply means that K.H. was mistaken about the exact date, the precise type of detail that a child may misperceive or misremember.

Underwear

[173] The underwear worn by K.H. to the hospital on Thursday, July 6, 2023, was seized by the sexual assault nurse examiner. The underwear was examined by the forensic scientist, Roger Frappier, for DNA evidence.

[174] Mr. Frappier testified at trial. His qualifications and the admissibility of his testimony and reports were formally admitted by the defence. I qualified him as an expert in:

a. Forensic serology – the identification of bodily fluids;

b. DNA analysis, including probabilistic genotyping and STRmix in particular;

c. The evaluation of DNA analysis methods; and

d. The interpretation of bodily fluids, including the deposit, transfer and persistence of bodily fluids and DNA.

[175] K.H.'s underwear was examined for semen and saliva. Semen was detected on the front inside panel and crotch. DNA analysis of the semen from the front panel of K.H.'s underwear indicated the presence of DNA from three individuals. They identified DNA from K.H. and at least one male.

[176] D.A. could not be excluded as the source of a male DNA profile from the semen on the front panel of K.H.'s underwear. STR DNA results were estimated to be greater than one trillion times more likely if the profile originated from D.A. than if it originated from an unknown person, unrelated to D.A.

[177] Based on this, I find that the semen found on K.H.'s underwear was D.A.'s semen.

[178] Mr. Frappier opined that the semen was deposited as a liquid and that it dried on the underwear. He also opined that the semen was deposited since the last time the underwear was washed. He came to this conclusion because he would not have obtained the results if the semen had been deposited before the underwear had been washed.

[179] Mr. Frappier acknowledged that there can be a transfer of dried semen, but it is absorbed more readily as a liquid and he explained that the semen on K.H.'s underwear was deposited when it was a liquid because it was absorbed by the fabric and found within the garment. The semen was not a crusty substance sitting on top of the garment.

[180] On cross-examination, Mr. Frappier explained that the underwear was thin and when taking the cutting from the front panel, the entire area was removed. The semen could have been deposited on the outside of the underwear and if sufficient semen were present, it could have diffused to the inside. If that had happened, a reaction could have been obtained during body fluid mapping.

[181] As for the third DNA detected, it was a trace result and not suitable for comparison. It was not the DNA of K.H. or D.A. It was an epithelial fraction—that is, body cells. It was not from semen. Mr. Frappier testified that in the sperm fraction recovered from K.H.'s underwear, there was DNA from one male, which is the DNA I have found to be D.A.'s.

[182] Finally, the body fluid mapping suggested the possible presence of saliva, but there is no definite test to find the presence of saliva and it could have come from other body fluids, such as sweat and fecal matter.

[183] While the defence admits that there are no issues with the continuity of K.H.'s underwear, the defence did raise the issue of whether K.H. was in fact wearing her underwear from the day before – the Wednesday she alleges she was sexually assaulted – or whether she was wearing underwear she had previously discarded in the bathroom. Recall that it is the defence theory that D.A.'s semen was found on the underwear because he masturbated in the bathroom and there was a possibility he used clothing from the bathroom to cover his semen if he missed the toilet.

[184] On cross-examination, K.H. testified that she changes her underwear from one day to the next. She stated that she "never" wears clothes two days in a row because one sweats a lot and it is "gross". K.H. testified that the underwear she gave the hospital on the Thursday was not the underwear from the day before. K.H. also acknowledged that she sometimes threw her clothes in the corner of the bathroom when she was living at the apartment during the relevant time. She would pick it up the next day and put it in the laundry.

[185] It is the defence theory that K.H. wore underwear she recovered from the bathroom floor, rather than the underwear from the day before. It is the Crown's theory that K.H. wore the underwear to the hospital from the previous day—the day K.H. alleges she was sexually assaulted by D.A. in the bedroom.

[186] I do not accept K.H.'s evidence that she would never wear underwear two days in a row. I find it unrealistic that an eight-year-old would always change their underwear. I find it is far more plausible that K.H. wore the same underwear two days in a row than she would put on dirty underwear from the floor of the bathroom or from the laundry pile. I find that K.H. had a more idealized sense of her hygiene than she testified to. This is reinforced by H.H.'s evidence that K.H. could go a couple of days without showering and that it could be days before K.H. showered if H.H. was not home.

[187] I find it particularly implausible that K.H. did not wear her Wednesday underwear two days in a row given the course of events on the Wednesday and Thursday. K.H. had been sexually abused by D.A. on the Wednesday, which prompted her to disclose the abuse to her mother. Her mother slept with her overnight on the couch in the living room then took K.H. to the hospital on the Thursday. In this context, I find it highly unlikely that K.H. would have changed into dirty underwear from the bathroom or laundry pile after the abuse and before she went to the hospital. It is more consistent with the course of events that she simply wore the underwear from the Wednesday when she went to the hospital, given the change in her routine that day prompted by her disclosure to her mother.

[188] I am satisfied beyond a reasonable doubt that D.A.'s semen was deposited on K.H.'s underwear as a result of him having anally penetrated K.H. on the Wednesday she disclosed the abuse to her mother.

Conclusion: Counts 1 and 4

[189] Counts 1 and 4 allege that D.A., for a sexual purpose, invited, counselled or incited K.H. to touch D.A.'s body, contrary to s. 152 of the Criminal Code. Count 1 particularizes the offence as having occurred on or about July 5, 2023. Count 4 provides a date range between January 1, 2021 to July 5, 2023.

[190] The Crown must prove the following essential elements beyond a reasonable doubt:

a. D.A. invited, counseled, or incited K.H. to touch his body;

b. he did so for a sexual purpose;

c. the complainant was under the age of 16; and

d. D.A. believed that the complainant was underage, was wilfully blind as to the complainant's age, or subjectively appreciated the risk that the complainant was underage, i.e. recklessness.

[191] There is generally no requirement for precision around the date of the alleged offence: R. v. G.G., 2025 ONCA 574, at paras. 39-43. Generally, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment: see R. v. B. (G.) (1990), 56 C.C.C. (3d) 200, at pp. 215-16; R. v. S.M., 2017 ONCA 878, at para. 10; and Criminal Code, s. 601(4.1).

[192] The Crown has proven beyond a reasonable doubt that D.A. invited K.H. to touch his penis. Based on all the circumstances, it is readily apparent that D.A. did so for a sexual purpose, that is to masturbate him. K.H. was under the age of 16 at the time of the touching. Finally, D.A. knew that K.H. was under the age of 16. He lived with K.H. and H.H. for several years, knew she was attending elementary school, and her age was obvious to him.

[193] I am persuaded beyond a reasonable doubt that D.A. invited K.H. to touch his penis on multiple occasions in the bathroom.

[194] Thus, I find D.A. guilty on Counts 1 and 4.

Conclusion: Counts 2 and 5

[195] Counts 2 and 5 allege that D.A. touched K.H. for a sexual purpose contrary to s. 151 of the Criminal Code. Count 2 specifies that the alleged sexual interference occurred on or about July 5, 2023. Count 5 alleges that the sexual interference occurred between January 1, 2021 and July 5, 2023.

[196] The Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

a. that D.A. intentionally touched K.H., either directly or indirectly;

b. that the touching was for a sexual purpose; and

c. that K.H. was under the age of 16 at the time of the touching;

[197] The Court of Appeal for Alberta has held that touching is for a sexual purpose "if it is done for one's sexual gratification or to violate a person's sexual integrity": R. v. Morrisey, 2011 ABCA 150, at para. 21. In assessing D.A.'s purpose, the trier of fact may consider "whether the sexual context of the touching would be apparent to any reasonable observer": at para. 21. The court goes on to explain that "'sexual purpose' may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself": at para. 21.

[198] The Court of Appeal for Ontario has explained that whether touching was for a sexual purpose or took place in circumstances of a sexual nature is largely a question of fact to be determined by examining all the circumstances: R. v. Langevin, 2016 ONCA 412, at para. 24. The court also held that "proof of these essential elements may be made by direct evidence, by circumstantial evidence or by both types of evidence in combination": at para. 24.

[199] Again, the Crown is generally not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment.

[200] I am persuaded that D.A. intentionally touched K.H. by having her masturbate him with her hand and by touching his penis to her anal region and penetrating her anus with his penis. There is no doubt that the touching was for D.A.'s sexual gratification and that it violated K.H.'s sexual integrity. The sexual context is obvious to a reasonable observer. K.H. was under the age of 16 at the time of the touching.

[201] I find that the Crown has proven that D.A. did these things multiple times to K.H. over the time period alleged.

[202] Thus, I find the accused guilty on Counts 2 and 5.

Conclusion: Counts 3 and 6

[203] Counts 3 and 6 allege that D.A. sexually assaulted K.H. contrary to s. 271 of the Criminal Code. Count 3 specifies that the alleged sexual assault occurred on or about July 5, 2023. Count 6 alleges that the sexual assault occurred between January 1, 2021 and July 5, 2023.

[204] The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 25; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25. Touching is proven objectively, and "[i]t is sufficient for the Crown to prove that the accused's actions were voluntary": Ewanchuk, at para. 25. Voluntariness means that "the conduct in question must be willed": R. v. Daviault, [1994] 3 S.C.R. 63, at p. 74.

[205] The sexual nature of the contact is also determined objectively. The Crown does not need to prove that D.A. had any mens rea with respect to the sexual nature of his behaviour: Ewanchuk, at para. 25.

[206] The absence of consent is determined subjectively, by reference to the complainant's internal state of mind toward the touching at the time it occurred: Ewanchuk, at para. 26; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89.

[207] The mens rea of sexual assault has two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent on the part of the person touched: Ewanchuk, at para. 42; Barton, at para. 87. Sexual assault is a crime of general intent. The Crown need only prove that D.A. intended to touch the complainant to satisfy the basic mens rea requirement of intention to touch: Ewanchuk, at para. 41.

[208] The Crown has established beyond a reasonable doubt that D.A. touched K.H. with his penis. He had her masturbate him with her hand and he touched her anal region with his penis and penetrated her anus with his penis. The sexual nature of the contact is clear from the context. K.H. neither consented nor, given her ages at the time of the touching, is consent a defence. In any event, this is not a live issue. The Crown has also proven beyond a reasonable doubt that D.A. intended to touch K.H. and knew she did not consent.

[209] I find that D.A. sexually assaulted K.H. multiple times over the time period alleged.

[210] Thus, I find D.A. guilty on Counts 3 and 6.

[211] In closing, I note that I would have been satisfied beyond a reasonable doubt on all counts even without the new disclosure at trial that D.A. used his phone to put K.H. on a website with old men and the new disclosure that he took sexual photos of K.H.

Disposition

[212] In sum, I find D.A. guilty on all counts.

Justice Owen Rees

Released orally: October 31, 2025

Released in writing: November 3, 2025

[1] I will refer to the bedroom of the accused and H.H. as the "principal bedroom" or the "bedroom".