Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
S.C.
Counsel: Matthew Boissonneault, for the Crown Devorah Katz and Mark Reynolds, for S.C.
HEARD: January 6 to 20, 2026
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction such that it can be published.
REASONS FOR JUDGMENT
J.M. BARRETT J.
OVERVIEW
1The defendant, S.C., stands charged with one count of sexual assault, contrary to s. 271(a) of the Criminal Code, R.S.C., 1985, c. C-46, and one count of sexual interference, contrary to s. 151(a) of the Criminal Code. The two charges stem from allegations of inappropriate touching of the complainant, C.H., who is the niece of the defendant’s then-partner (A.C.). The alleged offences occurred when C.H. was between four and seven years old.
2The Crown relies on the testimony of C.H., along with the testimony of her aunt, brother and schoolmate, to argue that it has proven both charges beyond a reasonable doubt.
3The defendant testified. He denied all allegations. The defence also called clinical psychologist Dr. Peter Hendricks to provide expert opinion evidence in support of its theory that C.H.’s memories are false and possibly the product of repeated exposure to psychedelics as a child.
4At the outset of the two-week trial, the Crown applied for an order permitting C.H. to testify while in the presence of a support worker, pursuant to s. 486.1 of the Criminal Code. The Crown also sought an order permitting C.H. to testify from another room at the courthouse via CCTV, pursuant to s. 486.2 of the Criminal Code. Both orders were made on consent.
5My task as the trier of fact is to decide whether the evidence adduced at trial establishes S.C.’s guilt of the charged offences on the criminal standard of proof beyond a reasonable doubt. This is a very high and strict standard. I will begin with a summary of the evidence.
THE EVIDENCE
Background
6There is no dispute that C.H. was born in 2009. It is in 2009 that C.H.’s maternal aunt, A.C., met and began dating S.C. By about 2010, A.C. and S.C. moved into an apartment on LaRose Avenue, where C.H. sometimes visited.
7C.H.’s parents separated when she was about two years old. After this separation, C.H. lived with her mother, grandmother, and older brother (born in 2000).
8C.H.’s mother died in July 2016. About a year before her mother died, A.C. moved in to help care for C.H.’s mother. By this time, A.C.’s relationship with S.C. was platonic. S.C. remained at the LaRose apartment. S.C. married in November 2015. His new wife moved into the LaRose apartment for a few months until they found a new apartment near Royal York Road. In March 2017, S.C.’s daughter was born.
9Sometime after S.C.’s marriage, his contact with C.H. tapered off. C.H. last saw S.C. in 2018 at his nephew’s birthday party.
10In 2022, S.C. started working as a school bus driver. At the start of the 2022 school year, he was assigned to his daughter’s school in Etobicoke. In December 2022, he was assigned to fill in as a substitute driver at C.H.’s school. On his first day as a substitute bus driver at C.H.’s school, the defendant made an announcement to his student passengers. He asked, “Does anybody know [C.H.]?”, and asked that C.H. be told that he loved her very much and wanted to see her after school. C.H.’s friend, A.P., was on the bus and told C.H. about the announcement. C.H. was scared. After school, C.H. spoke with her brother. Her brother called the school anonymously, hoping to get S.C. fired. The brother spoke with the school principal who persuaded him to attend at the school the next day with C.H. They did as the principal asked. The principal called the police.
11Toronto Police Service Constable Kline responded and, with his body worn camera, recorded the twelve-minute discussion he had with C.H.1 Subsequently, on February 13, 2023, C.H. provided a formal cautioned videotaped statement to Detective Constable Wegner detailing alleged acts of sexual touching. C.H.’s videotaped statement was admitted as her evidence-in-chief at trial.
12In the period between C.H.’s two police statements, C.H. and her family spoke to a social worker, “Sandy”, from the Children’s Aid Society (the “C.A.S.”). No notes or other record exist of this meeting.
13S.C. was arrested on February 23, 2023.
The Allegations
14C.H. was thirteen years old at the time of her videotaped statement to the police. She was sixteen years old when she testified at trial. On consent, pursuant to s. 715.1 of the Criminal Code, C.H. adopted the contents of this statement as her evidence-in-chief. In her videotaped police statement, C.H. reported the following conduct, all of which she alleged occurred while she and S.C. were alone:2
(i) Wiping of genitals during diaper changes: When C.H. was about four or five years old, S.C. often encouraged C.H. to wear a diaper. He would then use baby wipes on her “private area” even though her diaper was unsoiled. C.H. remembers “feeling the cold when he wiped [her]” with baby wipes. He also used baby powder on her vaginal and anal area. C.H. recalled two diaper changes, one at the LaRose apartment, and the other at S.C.’s apartment on Royal York Road.
(ii) Hugging from behind while wearing a diaper: During a sleepover, S.C. put C.H. into a diaper and sat down to hug her from behind while telling her she was “sexy” and saying, “I love you.” C.H. was not wearing anything other than the diaper. C.H. said S.C. rubbed her “everywhere”.
(iii) Peeing into diaper while sitting on S.C.’s face: The morning after a sleepover, C.H. was wearing a diaper from the night before. As S.C. was lying fully clothed on the couch, he asked C.H. to climb on top of his face and pee into the diaper. He said it was “relaxing”. As C.H. sat on S.C.’s face and peed, S.C.’s eyes were closed. He said"it smells good”. He rubbed her thighs and butt as she peed.
(iv) Being watched while bathing: C.H. recalled bathing while S.C. sat on the toilet and watched. He got C.H. a beer and was drinking a beer himself.
(v) Driving incidents: When she was around six or seven years old, C.H. went on two drives with the defendant: one was to High Park, the other was to Orangeville. During these drives, S.C. suggested multiple times that C.H. wear a diaper. C.H. refused. During the drives, S.C. touched her thigh and said, “I love you” and “you’re so cute”. C.H. recalled that on the drives, they would go into an empty parking lot where S.C. had C.H. sit on his lap and allowed her to steer. She recalled asking why he had keys in his pocket – something she now realizes was his “boner” in her “butt”.
15C.H. also reported being photographed by S.C. while wearing a diaper – something she learned of from her aunt during the family meeting with social worker Sandy. C.H. was told that on one occasion, when her aunt returned home from work, S.C. showed the aunt photographs of C.H. and said “[i]sn’t she so cute in her diaper?”
16During cross-examination, C.H. testified that she has a “vague recollection” of being photographed while wearing a diaper. This is a recovered memory. C.H. did not do anything to recover the memory. C.H. recalled a “flash” from a camera. When asked if she was, to the best of her knowledge, photographed by the defendant, C.H. replied “I’m not certain”. C.H. denied the suggestion that this was a false memory created from what her aunt told her but agreed “it’s possible”. During cross-examination, it was suggested that the photograph was taken the same day that C.H. went with S.C. to the “Honest Ed’s” store where she wet herself. C.H. did not “fully remember” going to Honest Ed’s or of wetting herself. C.H. testified that she had a “memory”, what she described as a “little more of a recollection”, of S.C. calling her aunt and reporting that C.H. had wet herself. C.H. agreed it was “possible” that her mind created images about what happened from what her aunt had told her.
17During cross-examination, C.H. admitted that the defendant never asked her to touch him. He never forced her to wear a diaper. He never said anything was a “secret”. He never threatened her. He never offered a reward for wearing a diaper.
18During cross-examination, C.H. testified that her first memory of the defendant encouraging her to wear a diaper was during a sleepover, when she was about four years old.3 By then, she no longer wore diapers. She stopped wearing diapers at about one or two years of age. She only remembered two diaper changes, one of which occurred at S.C.’s apartment on Royal York Road. When asked about the sleepovers, C.H. was unsure of whether there were one or two, but was confident that she had slept over at S.C.’s apartment on Royal York Road. It was there that S.C. hugged her from behind and told her she was “sexy” while she was wearing a diaper. She agreed it was “possible” that S.C. just picked her up from behind and hugged her for a few seconds. C.H. denied the suggestion that this was “rough housing”. She recalled that the next morning S.C. was on the couch when he asked her to pee into the diaper while she sat on his face.
19C.H. was also cross-examined about her memory of the defendant sitting on the toilet and watching her as she bathed. C.H. was not sure which apartment in which this occurred. C.H. agreed that at the preliminary inquiry, she testified that S.C. brought her more than one beer. At trial, C.H. testified she is unsure of whether she was given one, or more than one, beer.
20C.H. was unsure if the incidents involving her being photographed, being watched while bathing, and peeing while sitting on S.C.’s face, all occurred during the same sleepover. She agreed that in her statement to Detective Constable Wegner, she said she was “pretty sure” that the peeing incident and bathing incident were both at the Royal York apartment. At trial, C.H. was not certain where the bathing incident occurred.
21During cross-examination, C.H. was asked about the driving incidents. She agreed that she did not remember much about the drives, other than that one was to High Park and the other to Orangeville. She agreed that she did not see a “boner”. Rather, she felt something hard against her bum. At the time she thought it was keys. Now, looking back, she has a better “sense” and “realization” and “assume[s] that [it] was a boner”. C.H. explained that she “could feel his erection”. She did not know when she first had this realization, or how she came to have that realization. When asked how certain she was that what she felt was not a set of keys, C.H. testified that she was “not certain”. She remembered that during the drives, S.C. would suggest that she wear a diaper. C.H. testified that “I think I remember him pointing to the back of his trunk and seeing the diapers”. In her videotaped statement, C.H. said that S.C. showed her diapers in the trunk of the vehicle. During cross-examination, C.H. agreed it was “possible” that what she remembered was a discussion about diapers and her brain has “filled in the details about seeing the diapers”.
22During cross-examination, C.H. was asked about the relationship with her biological father.4 She testified that after her parents separated, her father was not an important figure in her life. She had no memory of seeing her father when she was between two and about six or seven years of age. If she saw her father during this period, it would have been a “rare occasion”, and her aunt would be present. Only as she got older would her aunt allow her to be alone with her father. Now, she sees her father about once a month.
23C.H. agreed during cross-examination that her aunt told her some details about S.C., including that he has borderline personality disorder and an anxiety disorder. C.H. knew that S.C. grew up in foster care and had a terrible childhood. C.H. knew that S.C. asked her aunt to wear diapers. C.H. knew that S.C. was obsessed with baby items such as a pacifier, “onesies” and diapers, which he wore daily. Her aunt told her that S.C. took photographs of C.H. wearing a diaper. C.H. agreed that many things in her police statement were things that she did not remember but learned about from her aunt. However, she personally “experienced” the defendant changing her diaper.
The Disclosure and Reporting to Police
24At the time of the alleged abuse, C.H. told no one. C.H. explained she was “scared” that she would upset S.C. and was “afraid to speak up”. She felt uncomfortable. She and her whole family loved S.C. She trusted S.C. She viewed him as a father figure.
25C.H. testified that she told her brother about the sexual abuse during the last week of October 2022, a few weeks before she learned of S.C.’s bus announcement. C.H. was not prompted by anything. She explained she was just fed up and decided she needed to talk to someone about what happened. Weeks later, C.H. learned from her friend, A.P., about S.C.’s announcement on the school bus. Upon learning of this, C.H. feared for her safety. When C.H. got home, she told her brother, who called the school principal. The principal asked that they go to the school. When C.H. and her brother went to meet with the principal, the principal called the police. Toronto Police Service Constable Kline attended at the school the same day. Officer Kline’s body-worn camera recorded the twelve-minute conversation with C.H.
26During cross-examination, C.H. agreed that the only assault she reported to Officer Kline was that S.C. “smacked” her “butt”, something she is no longer sure happened. C.H. agreed she did not tell Officer Kline about peeing on S.C.’s face, that S.C. offered her a beer as she bathed, or about S.C.’s erection during their drives in the car.
27During cross-examination, C.H. agreed that she told Officer Kline, that she was “getting back more of [her] memories”. During cross-examination, C.H. agreed that these were memories of things she had previously forgotten that suddenly returned to her. C.H. testified that when she spoke with Officer Kline, she believed she had recovered all of her memories. In speaking with Officer Kline, C.H. testified that she did not know “where to start” or “how to talk about the situation”. She felt that there was “so much to tell at one time”. C.H. explained that it was a “very hectic time” during which she was “talking about this a lot”.
28On February 13, 2023, about a month after speaking with Officer Kline, C.H. gave a formal cautioned videotaped statement to Detective Constable Wegner. C.H. explained that she did not wish S.C. any harm. She only wanted him to stay away from her.
29At trial, C.H. testified that she believed what she reported to Officer Kline and Officer Wegner was the same. C.H. testified that her memories have been in “flashbacks”, similar to a movie playing in her head of the inappropriate things S.C. did to her. C.H. testified that she did not do anything to recover any of her memories. She was “not sure” whether she spoke to any adults to help her recover her memories. She agreed it was “possible” that she met with one or more adults who assisted her in recovering her memories. C.H. testified that when she disclosed the abuse to her brother in October 2022, this “might have” caused her to remember more, but if so, it was because she remembered the incidents and not because of anything her brother told her.
30During cross-examination, C.H. agreed that she was very unhappy when she learned of S.C.’s bus announcement but denied any concern of being associated with someone she thought was a “weirdo”. C.H. thought S.C. “crossed the line” and wondered how he had the “audacity” to do this as it showed he had no guilt for what he did. Prior to the bus announcement, she last saw the S.C. in 2018 at his nephew’s birthday party. She also recalled attending S.C.’s wedding in 2015, but did not recall being a flower girl.
31During cross-examination, C.H. admitted that before reporting the sexual abuse, she researched sexual assault on Google and read about three levels of sexual assault. From this “very brief” research, she believed S.C. had groomed her from birth. She did not recall the timing of her Google research, other than that it was before she spoke with anyone about the abuse.
The Complainant’s Exposure to Psychedelics
32During cross-examination, C.H. agreed that as a child she probably consumed ayahuasca and magic mushrooms. Her exposure to and knowledge of these controlled substances was through her aunt. She knew from her aunt that her mother consumed ayahuasca while pregnant with C.H.
33C.H. testified that she knows ayahuasca to be a hallucinogenic drug consumed in liquid form. Her aunt used to take ayahuasca. C.H. agreed that her aunt has likely spoken to her about ayahuasca many times but could not recall any specific conversation. She had no memory of ever taking ayahuasca herself but agreed it was “probable” that she was given ayahuasca multiple times. C.H. knew that members of her aunt’s religion – Santo Daime – consume ayahuasca. C.H. testified that her aunt is no longer a Santo Daime member but did not know when this membership ended. C.H. did not recall attending any Santo Daime meetings but agreed it was “probable”.
34During cross-examination, C.H. was shown a photograph taken at a Santo Daime meeting [Exhibit A]. C.H. agreed that seeing the photograph made her more certain that she has been to multiple Santo Daime meetings. She agreed that during meetings, a container of ayahuasca is shared by all attendees as part of a ritual. C.H. believed she suppressed memories of the meetings due to trauma. She “vaguely” recalls having some recovered memories of the meetings and people acting “weird”.
35C.H. was also cross-examined about magic mushrooms. C.H. was shown a photograph taken on June 21, 2019 – the summer solstice, in which C.H. is lying on a blanket with her aunt, S.C.’s sister, and her aunt’s friend. C.H. agreed that the photograph showed a thermos which possibly contained psychedelic mushroom tea. C.H. admitted that she has seen magic mushrooms multiple times – more times than she can remember. C.H. testified that while she did not remember taking magic mushrooms on June 21, 2019, it was “probable”.
36C.H. was cross-examined about her knowledge of hapé. C.H. described this as a drug ingested through the nose using a long straw that one blows into. C.H. recalled seeing it being used by two people at a Santo Daime meeting. C.H. testified that hapé can also be consumed by one person on their own. She did not recall ever seeing any reaction to the consumption of hapé.
37C.H. was cross-examined about her knowledge of kambo. C.H. knew this to be poisonous and “vaguely” knew it to be a secretion from frogs. She had no recollection of her aunt consuming kambo.
The Aunt’s Evidence (A.C.)
38A.C. testified that she met S.C. around 2009, about the time C.H. was born. They started dating shortly after they met. Around 2013, they moved into an apartment on LaRose Avenue.
39During their relationship, A.C. learned that S.C. liked baby items, including soothers and diapers which he sometimes wore. He sometimes asked that she treat him like a baby, and also asked that she wear a diaper so he could care for her. A.C. was never “into” this, but initially agreed, because it brought S.C. so much joy. The times she wore a diaper, S.C. would shake baby powder on her and say, “that’s hot”. A.C. never discussed this with C.H.5
40While living on LaRose Avenue, A.C.’s relationship with the defendant ended when he started to date other women. They continued living together until about 2015, when A.C. returned to her mother’s home to help care for her sister who was ill (i.e., C.H.’s mother). After A.C. moved out, the defendant remained at the LaRose apartment for several months. During this period, he got married. He and his new wife then moved into a nearby apartment at Royal York Road and Dundas.
41After S.C.’s marriage, he and A.C. continued to speak. A.C. had a close relationship with S.C.’s sister and would sometimes see S.C. on visits to his sister’s home. A.C. testified that when she was going to visit S.C.’s sister, C.H. would ask if S.C. was going to be there. If A.C. said “yes”, then C.H. would not want to go, but did not say why. Over time, A.C.’s contact with S.C. became less frequent.
42During her examination-in-chief, A.C. testified that she learned about the allegations of sexual abuse after C.H. told her that she saw S.C. driving a bus at her school. C.H. was anxious and asked: “what should we do?” A.C. told C.H. that they needed to put whatever happened behind them and forgive.
43After C.H. reported the abuse, A.C. thought about all the times C.H. had been alone with S.C. A.C. recalled that of the approximately 10 times C.H. visited her LaRose Avenue apartment, there were two sleepovers during which S.C. cared for C.H. while A.C. was at work. One of these two sleepovers stood out.
44A.C. recalled that S.C. called her at work and told her he put a diaper on C.H. because C.H. peed herself while they were at Honest Ed’s. C.H. was about four or five years old at the time. When A.C. returned home, S.C. showed her a “collection” of about 50 photographs. All were of C.H. playing in the bedroom wearing a short skirt and diaper. At the time, A.C. was shocked. A.C. hoped it was innocent but knew it was not right. A.C. wanted to give S.C. the benefit of the doubt because she loved him. A.C. testified that after this incident, she decided C.H. would never again be alone with S.C. This was the only time A.C. recalled S.C. taking photographs of C.H.
45During cross-examination, A.C. testified that after C.H. reported the allegations to the school principal, the family met for about two hours with a woman named “Sandy” from the C.A.S. Sandy first met with C.H. on her own and then with the whole family (i.e., A.C., C.H., the grandmother and the brother). This was before their statements to Detective Constable Wegner in February 2023. During the meeting with Sandy, A.C. admitted she had divided feelings. On the one hand, A.C. loved and trusted S.C. She believed he had a kind and good heart. She knew of his difficult childhood. However, the diaper photograph incident stood out in her mind as suspicious. A.C. told Sandy about this one suspicious incident.
46During cross-examination, A.C. admitted that when she met with Detective Constable Wegner, she reported two other times C.H. was alone with S.C. Both involved drives in the car. One was to “Happily Ever Esther Farm Sanctuary”, and the other, to a conservation area. A.C. was confident both drives were before the diaper photograph incident because C.H. was not left alone with S.C. after that incident. A.C. denied that the drives were a new memory. She agreed she felt guilty because she had not done more to protect and support C.H., but denied that this disclosure was an effort to be more supportive of C.H. She agreed that C.H. often went on drives with A.C. and S.C. A.C. testified that C.H. did not sit on S.C.’s lap during those drives. Under further cross-examination, A.C. agreed she recalled C.H. sitting on S.C.’s lap and steering the car, although she was not 100 per cent sure.
47A.C. agreed that in her police statement to Officer Wegner, she used the term “hobby” to describe S.C.’s habit of wearing of diapers. It was not sexual. She testified that S.C. also collected Winnie-the-Pooh items, including pacifiers. It was also not sexual when S.C. asked A.C. to wear a diaper that he would then change. A.C. testified that although S.C. never forced her to wear a diaper, she felt “coerced” by his efforts to convince her. When she refused, he did not push it.
48During cross-examination, A.C. agreed that she, her mother and S.C. had a “running joke” wherein her mother would hold up her skirt and say, in her Hungarian accent, that it looked “sassy” when she meant “sexy”.
49During cross-examination, A.C. was asked about C.H.’s relationship with her biological father. A.C. explained that after C.H.’s parents separated, the father visited on a few occasions but was not active in C.H.’s life. After C.H.’s mother died, A.C. would not allow C.H. to be alone with her father.6
50A.C. was cross-examined extensively about her involvement in the Santo Daime religion and her use of controlled substances. A.C. testified that she began attending Santo Daime meetings around 2008. She became a member in 2010. She is currently a member, but has stopped attending meetings. At meetings, members wear white uniforms. Ayahuasca is ingested as a sacrament and commonly results in purging. Ayahuasca has different effects on individuals, including hallucinations. A.C. has only experienced visions once. Typically, ayahuasca makes A.C. feel more connected with the divine, and more in touch with her feelings and life. A.C. knows ayahuasca is a controlled substance but testified that its use is permitted by the City of Toronto during ceremonies.7
51A.C. testified that she consumes magic mushrooms about five to 10 times a year for their healing – medicinal – properties. She smokes marijuana most evenings and also consumes hapé daily at home. Her consumption of hapé started around 2015. She has consumed kambo once. A.C. described kambo as a substance from a frog that has a purgative effect, not a psychoactive effect.
52A.C. was also cross-examined extensively about occasions when C.H. accompanied her to Santo Daime gatherings and C.H.’s exposure to psychedelic substances. A.C. testified that C.H.’s mother took ayahuasca while pregnant with C.H. At three years of age, C.H. took ayahuasca while on a retreat to Quebec with A.C. A.C. explained that C.H. reached out for the sacramental cup. A.C. believed that C.H.’s soul knew what it was. Before five years of age, C.H. consumed ayahuasca at least once more during a retreat in the United States. A.C. recalled that there were about 40 attendees at the retreat who passed buckets around for purging. A.C. believed that C.H. consumed ayahuasca at a handful of Santo Daime meetings between five and ten years of age. A.C. never “gave” C.H. ayahuasca. Rather, C.H. “chose to take it”. A.C. believed C.H. experienced visions once, after consuming ayahuasca as C.H. spoke of seeing wolves in the woods.
53A.C. believed that C.H. first consumed mushrooms when she was around four years old. C.H., A.C. and C.H.’s mother went to the Kortright Conservation area when C.H. helped herself to magic mushrooms. C.H. consumed mushrooms about a handful of other times. As C.H. got older, C.H. stopped attending Santo Daime meetings and said she did not want to take mushrooms.
54A.C. described C.H. as someone who was very mature for her age, very responsible, very smart and focused.
The Brother’s Evidence (A.H.)
55C.H’s brother, A.H., was born in 2000. He is nine years older than C.H. He is now 25 years old. A.H. currently lives with C.H. and A.C. He does not have a close relationship with either his aunt or C.H.
56The brother’s first memory of S.C. is from when he was about seven years of age. This is when he believed his aunt began dating S.C. At the time, A.H. lived with his parents in Brampton. Once his parents separated, A.H. moved with his mother, grandmother, and C.H. into an apartment in Etobicoke. He and C.H. saw their aunt “somewhat frequently”. The aunt’s visits increased to multiple times a week once his mother fell ill. A.H. considered S.C. to be like an uncle.
57A.H. recalled attending dance practices from about ten years of age. Practices were twice weekly, for two hours each session. From 10 to 14 years of age, S.C. often drove him to the practices. From 14 to 16 years of age, S.C. drove A.H. to most practices. Sometimes C.H. was with them. During his two-hour dance practices, A.H. did not know where S.C. and C.H. went. He was unaware of anything inappropriate.
58A.H. testified that after his aunt’s relationship with S.C. ended, “not much changed” in terms of S.C.’s presence in his life. They often hung out. They would drive around, smoke weed and talk. One conversation stood out. A.H. recalled that when he was 15 or 16 years old, the defendant told him that he found it “hot” when his wife wore diapers and peed into them. A.H. was confident this was said in a sexual context.
59By 2017, S.C.’s presence in A.H.’s life tapered off. In the years that followed, S.C.’s name came up every now and then in conversations with C.H. As C.H. got older, she would often comment that S.C. was “messed up” in the head but never said why. A.H. testified that he just assumed he and C.H. were on the “same page” and that her remark was because they both knew of S.C.’s rough childhood and mental health problems.
60Then, around December 2022, A.H. and C.H. were talking when S.C.’s name came up again. This time, C.H. remarked, “you don’t even really know how bad he is”. C.H. tried to explain pedophilia. C.H. said S.C. was someone who liked kids and mentioned something about diapers. As soon as A.H. heard “diapers”, “it clicked”. A.H. recalled his conversation with S.C. from years earlier. He knew that S.C. had a sexual fetish with diapers. A.H. did not want to know any more. He knew it was not good. During cross-examination, A.H. testified that anyone could put “two and two together”. At the time, he did not do anything, as he felt C.H. confided in him to get it off her chest.
61A.H. testified that sometime after this conversation, when C.H. returned home from school one day, C.H. told him that S.C. was driving a bus at her school and had asked after her. C.H. seemed nervous and afraid. A.H. thought, “this can’t be happening”. He assumed that S.C. had intentionally selected C.H.’s bus route to reconnect with C.H. Wanting to deal with the situation “head on”, he called the school hoping to have S.C. fired. He thought an anonymous report would avoid people looking at C.H. “like that”. The school principal encouraged him to attend the school in person with C.H. The next day, A.H. and C.H. went to the school. The principal called the police.
62During cross-examination, A.H. testified that aside from what C.H. had told him, the only other knowledge A.H. had about S.C.’s obsession with diapers was the statement made to him by S.C. years earlier, in reference to his wife. Under further cross-examination, A.H. recalled that during the family meeting with Sandy, his grandmother mentioned catching S.C. wearing diapers.
63During cross-examination, A.H. did not recall any sleepovers at his aunt’s home. He recalled his mother and aunt going to Santo Daime meetings. A.H. recalled going to one meeting when he was about eight years of age. He was shocked to see his mother and several others throwing up. A.H. recalled taking magic mushrooms once or twice, including one day when he went on a walk with his aunt, S.C. and C.H.
The Schoolmate’s Evidence (A.P.)
64A.P. is a schoolmate and friend of C.H. She testified via CCTV.8 A.P. is now 16 years old. She met C.H. at the start of the 2022 school year. A.P. took the bus to get to and from school. At the start of the year, she had a female bus driver. When the female driver left, there was a series of bus drivers, one of whom was S.C. He started in December 2022.
65A.P. testified that one day, as she and the other students were about to get off the bus, S.C. yelled out to everyone “if anyone knows [C.H.] please tell her that I miss her and love her and she’s my niece and I just want to see her”. A.P. stated that when she told C.H. about this announcement, C.H. seemed worried and nervous. Prior to the announcement, A.P. recalled telling a joke about baby powder which C.H. did not find funny. C.H. later told A.P. that she was triggered by the joke as her uncle had rubbed baby powder on her when she was little.
66During cross-examination, A.P. agreed she encouraged C.H. to make a report. After the baby powder joke, A.P. and C.H. discussed the abuse repeatedly. A.P. further agreed that weeks prior to S.C.’s bus announcement, C.H. told A.P. that she knew the new bus driver.
Evidence of the Arresting Officer – Detective Constable Eduardo Dizon
67Detective Constable [“DC”] Dizon is now employed with the Ontario Provincial Police. On February 24, 2023, he was employed with the Toronto Police Service where he had 25 years of service.
68DC Dizon testified that on February 24, 2023, he was tasked with locating and arresting S.C. The plan was to arrest S.C. for sexual assault and sexual interference and release him on a “Form 10” – i.e., an undertaking to an officer. DC Dizon and his partner, DC Fournier went to S.C.’s place of employment in Mississauga.
69S.C. was found in a back office of the bus depot where he worked. S.C. became physically agitated, resulting in DC Dizon and his partner having to call Peel Regional Police Service to request a uniformed unit. A protective search was conducted. S.C. was found in possession of a baby pacifier and a Winnie-the-Pooh figurine [Exhibit 3].
Opinion Evidence of Defence Expert Dr. Peter Hendricks
70In an oral ruling delivered on January 15, 2026, I found Dr. Peter Hendricks to be a qualified expert whose opinion evidence met the test for admissibility: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, at paras. 23-24; R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-25. Dr. Hendricks’ report is Exhibit 5.
71Dr. Hendricks was qualified in the areas of psychiatry and neurobiology, with a focus on classic serotonergic psychedelics and effects on cognition, emotion, memory processes and long-term psychiatrical outcomes. Dr. Hendricks’ testimony addressed the effects of psychedelics; specifically, ayahuasca and psilocybin (i.e., magic mushrooms).
72In-chief, Dr. Hendricks described ayahuasca as “a psychedelic brew” that is ingested orally. Its effects are similar to “psilocybin, LSD, and other psychedelics”. It is typically consumed in adult group settings in quantities sufficient to substantially alter consciousness, the effects of which last four to six hours. It can produce profound alterations in perception, emotion, cognition, and sense of self. Physical effects can include vomiting and diarrhea.
73Dr. Hendricks testified that individuals who consume ayahuasca as part of traditional rituals or religious practices typically do so “to bring about a mystical-type experience” with a sense of “spacelessness and timelessness”. Ayahuasca can create a state of consciousness in which people sometimes report access to certain thoughts, emotions, or memories that would otherwise be difficult to access.
74When asked about the long-term effects of ayahuasca on the brain, Dr. Hendricks explained “we don’t yet really understand” what these might be. Dr. Hendricks stated that the difficulty in measuring their long-term effects is that in clinical trials, psychedelics are only administered one to three times.
75Dr. Hendricks was also asked about psilocybin. Dr. Hendricks explained that it has effects similar to ayahuasca. Both ayahuasca and psilocybin are known to impact the serotonin 2A receptors in the brain, typically resulting in “mystical-type experiences” in which the person has “a sense of timelessness, spacelessness, unity, a sense of joy and awe and wonder”. Adverse effects can result in “bad trips” in which individuals become anxious, paranoid, or panicky. Psilocybin effects can last four to six hours.
76Dr. Hendricks was asked about the effect of psychedelics on: (i) memory encoding and consolidation; (ii) memory reconsolidation and suggestibility; and (iii) recovered or suddenly remembered memories under psychedelics. His testimony on these issues may be summarized as follows:
Events experienced while intoxicated on psychedelics are often remembered in a dream-like, fragmented, or confabulated manner, or not remembered at all.
Psychedelics can disrupt the normal encoding of memories, such that they are filed away in a manner that is not reflective of reality.
During the “acute effects of a psychedelic”, the brain functions in a markedly different way such that one’s perception of reality is “profoundly” altered.
Psychedelics can result in individuals remembering past events that had previously been forgotten, or remembering events that never occurred. Events might also be remembered in a dream-like, fragmented, or confabulated manner.
Because memories are malleable, when retrieved, details can be added or removed. This is particularly true if the memory is retrieved or discussed during a psychedelic experience.
The use of psychedelics can result in a person having increased confidence in memories that are factually inaccurate.
Psychedelics can impact the consistency of one’s memory of an event.
77Dr. Hendricks was also asked about his knowledge of the effects of psychedelics on children. He testified that there are no known modern studies involving children given the obvious ethical concerns. He explained that “we just do not know what psychedelics might do to the developing brain”.
78Dr. Hendricks was asked about the impact of a child having repeatedly used ayahuasca and magic mushrooms. He testified that he did not know what the effects of this would be, however, based on what is known of the developing brain and the general effects of psychedelics, he believed that this “could result in an increase in psychotic or manic symptoms” and could negatively impact one’s understanding of reality.
79During cross-examination, Dr. Hendricks testified that:
He is unable to quantify the risk of memory distortion in children arising from the ingestion of psychedelics.
There are no known studies that have examined the impact of psychedelics on children.
His opinions are based on “extrapolations” from what is known about human memory and brain development, but there are a “fair number of gaps that have to be filled”.
In his clinical trials, he relies entirely on non-verified self-reporting by test subjects.
Clinical trials involving human subjects focus on the testing of short-term recognition in a controlled setting. This is different from a child recalling autobiographical events years later.
He has conducted clinical trials involving psilocybin but not ayahuasca.
He was not given any information on the dose, potency or frequency of C.H.’s exposure to psychedelics.
80Dr. Hendricks admitted that at its highest, his opinion is that C.H.’s exposure to psychedelics “might” have impacted her memories.
In-Chief Testimony of the Defendant (S.C.)
81S.C. exercised his right to testify in his own defence.
82S.C. was quite emotional during his testimony about his difficult childhood. He described physical and verbal abuse in his family home where he lived with his mother, stepfather, older brother and younger sister. He testified that he and his brother were treated like “peasants”, while his sister was treated like a “queen”.
83S.C. testified that when he was about six years old, he went into foster care. His brother was also placed into foster care. Before leaving his family home, S.C. had started to wear his sister’s diapers under his clothes to feel “safe” and “comfort”. This habit started when he was around five or six years old. He never used the diapers for their intended purpose. Rather, he would put a diaper on and then sit and play with toys. His brother once caught him wearing diapers and told their mother who yelled at S.C. He did not recall if his mother struck him.
84At nine years of age, S.C. became a Crown ward. He moved frequently and found it hard to make friends. He was abused by other Crown wards. He continued wearing diapers during this period. He stole one or two at a time from department stores. Afraid he would be made fun of, he told no one.
85When he was about 14 or 15 years old, the staff at a group home did a room search and found diapers stuffed in a jacket sleeve in S.C.’s closet. When S.C. returned from school, a staff member confronted him with this discovery. S.C. was embarrassed. A psychiatrist he saw at the time was informed of what happened but told S.C. it was okay, as no one was being hurt. S.C. continued to wear diapers but made greater efforts to hide this.
86S.C. testified that diapers have never formed part of his sexual identity. He keeps these two worlds separate: one world is for safety, the other for pleasure. When wearing a diaper, he goes into a “childlike mind”. He collects other baby items as well, such as stuffed animals, toys, childlike clothing, and soothers. As an adult, he wears diapers “pretty much daily”. Throughout his life, he has had many relationships, all with older adult females who provide mother-like comfort.
87S.C. has only told two partners about his diaper-wearing habit: C.H.’s aunt, and his wife. While he has been in many relationships, they are the only two women he has lived with.
88S.C. started dating C.H.’s aunt, A.C., around 2008 or 2009. At the time, he was about 27 years old. A.C. was in her early forties. By 2010, they moved into an apartment on LaRose Avenue. Their relationship ended around 2012, but they continued living together until 2015 when A.C. moved in with her mother to help care for her sister who was ill (i.e., C.H.’s mother).
89S.C. had a very close relationship with all of C.H.’s family, except one – C.H.’s mother – who appeared to dislike him from the outset. C.H.’s mother had a general dislike of all men. S.C. testified that he was “pretty involved” in C.H.’s life in 2013, when C.H. was four years old. At the time, C.H.’s aunt went to Santo Daime meetings once or twice a month. S.C. only went to a couple of meetings with A.C. because the group “shunned” him due to his mental health problems. He tried ayahuasca at his first Santo Daime meeting but found it “disgusting”. C.H. was with them at this meeting and went up with A.C., who took the ayahuasca cup like one would drink from a shot glass. Some members screamed and purged after taking a shot of ayahuasca. S.C. also recalled going with C.H. and A.C. to Michigan when C.H. was around three or four years old. S.C. believed that A.C. threw up after consuming ayahuasca in C.H.’s presence.
90S.C. testified that he consumed magic mushrooms twice. C.H. was present with A.C. both times. On one occasion, they went to the Kortright Centre. He recalled the magic mushrooms were in chocolate balls.
91S.C. met his wife in 2014. They dated for about a year. They were married in November 2015. His wife moved into the LaRose Avenue apartment after A.C. moved out. They lived in the LaRose apartment for several months before moving into an apartment on Royal York Road.
92Once married, S.C. kept in touch with A.C. They spoke on the phone a couple of times a month. Sometimes they met at a park to hang out. S.C. also recalled teaching C.H.’s brother how to drive a stick shift at Centennial Park.
93S.C. testified he remembered being alone in his car with C.H. only once. It happened when C.H. was around four years old. S.C. was to watch C.H. while her mother and A.C. attended a Santo Daime meeting near Bloor and Bathurst. C.H.’s grandmother was unavailable to care for C.H. because she was at her cleaning job. S.C. dropped A.C. and C.H.’s mother off at Bloor and Bathurst Streets at around 1:30 p.m. and was to pick them up about four or five hours later. Consequently, S.C. planned to stay in the area with C.H.
94About ten minutes after dropping C.H.’s mother and aunt off, he and C.H. went to Honest Ed’s to “kill some time”. Shortly after arriving, S.C. was speaking to a lady in the store when he felt C.H. tug on his shirt. C.H. said “I’m peeing”. There was a puddle between C.H.’s legs. He described feeling in “panic mode”. He was embarrassed and just wanted to get C.H. out of her clothes. He drove to the LaRose apartment. During the drive, C.H. said she was “itchy”. He recalled looking in the rearview mirror and seeing a motion but could not recall where she was scratching. While he knew he did not have a change of clothes for C.H., there was nowhere else to go because he did not have a key to her grandmother’s home, and the grandmother was away at her cleaning job.9
95Once at the LaRose apartment, S.C turned on the tub faucet. C.H. followed him into the bathroom. He told C.H. to “rinse yourself off” and tossed a pull up diaper into the bathroom. S.C. then stayed outside with the bathroom door slightly ajar so that he could see only the sink, vanity and toilet. As he waited, he called A.C. However, A.C.’s phone was turned off because she was in a Santo Daime meeting. The call went to voice mail. S.C. left a message along the lines of “[C.] is wearing a diaper because she wet herself at Honest Ed’s, call me when you get message”. S.C. believed this occurred at about 4:00 p.m.
96When C.H. came out of the bathroom, she was dressed in the same clothes with the pull-up diaper. He put her soiled underwear into a bag. They stayed at the apartment for about another twenty minutes, during which time C.H. played with his cat while he watched television. C.H. “may have” chased the cat into the bedroom. He recalled taking a single photograph of C.H. with his cell phone which he sent to A.C.’s cell phone. The photograph was of C.H. lying or sitting on the floor with the cat. He denied taking more than one photograph.
97S.C. testified that he stayed at the apartment until about 4:30 or 5:00 p.m. and then drove C.H. home. S.C. wanted to ensure C.H.’s grandmother would be home. On arriving at C.H.’s home, S.C. was invited in for something to eat. C.H.’s grandmother took the soiled underwear but was not happy that C.H. was wearing a diaper. S.C. described it as “awkward”. He was with the grandmother when A.C. called at about 5:30 or 6:00 p.m. and asked for a ride home. In the background, he heard C.H.’s mother yelling: “[w]hy is my daughter in a diaper? What is wrong with you?”. C.H.’s mother was “really angry” and “screamed through the phone”. After that, C.H.’s mother never allowed S.C. to be alone with C.H. S.C. testified that he was really hurt by this decision because this was the first real family he had ever had. During cross-examination, S.C. described being “distraught” by this decision. C.H. was allowed to be the flower girl at his 2015 wedding because it did not require C.H. being alone with him.
98S.C. testified that he has never changed a diaper in his life, including that of his own daughter. He never wiped C.H. He never asked C.H. to pee into a diaper. He never asked C.H. to sit on his face. He “may” have hugged C.H. from behind while she was wearing a diaper but never in a sexual manner. He denied that C.H. ever slept over at the LaRose apartment, or any other apartment.
99S.C. denied calling C.H. “sexy” or “sassy”. He explained that he probably used these words in C.H.’s presence because of the inside joke with C.H.’s grandmother wherein she would hold up her skirt and say “look, I’m sassy” when she meant to say “sexy”.
100S.C. testified that after his marriage in November 2015, his new wife did not like his ongoing contact with A.C. and A.C.’s family. He recalled seeing C.H. at two of his nephew’s birthday parties. At one party, he recalled C.H. giving him a hug and saying, “I love you, my family loves you.” C.H. was angry that he was not around as much. At the birthday party in 2018, C.H. would not leave him alone. This annoyed his wife who was there with their infant daughter.
101S.C. testified that at the time of his arrest in February 2023, he was working as a school bus driver. He started this employment in 2022 after a few months of training. He had no say in the schools on his route. His primary assignment was as a driver at his daughter’s school. Sometimes he was randomly assigned to cover for other drivers at schools in the same vicinity. He was assigned to fill in as a bus driver at C.H.’s school during two school years: the year of his arrest, and the year prior. The year prior to his arrest, his assignment was for about two weeks. During this assignment, he told A.C. about his assignment. She said, “that’s really cool”.
102S.C. testified that when he was first assigned to C.H.’s school, he asked students on his bus if anyone knew C.H. and to say “hi”. Other than that, he never tried to call or contact C.H. In the second school year, on the first day he was assigned to C.H.’s school, he made a similar announcement. This was around December 2022.
Testimony of S.C. During Cross-Examination
103During cross-examination, S.C. testified that he asked C.H.’s aunt [A.C.] to wear a diaper “once or twice” so she could better understand his world. It was never sexual. He never changed her diaper. He never put baby powder on her but “she ended up putting it on”. He does not engage in role play other than towards himself. He once asked his wife to wear a diaper to “come into my world” but his wife did not like doing this.
104S.C. testified that his only exposure to ayahuasca was at the two Santo Daime meetings he attended with A.C., where he saw people purging and screaming after taking a shot of ayahuasca. The ceremonies typically lasted 4.5 to 5 hours. A.C. told him that Santo Daime members were worried about him having a mental health issue from ayahuasca consumption, so he was shunned and told not to return.
105During cross-examination, S.C. was asked about the Honest Ed’s incident. He testified that he picked C.H.’s aunt and C.H.’s mother up at about 12:30 or 1:00 p.m. at the grandmother’s home. When he dropped them off at Bloor and Bathurst, he planned to hang out in the area until it was time to pick them up after their Santo Daime meeting. Within about 10 minutes of arriving at Honest Ed’s, C.H. tugged on his sleeve. When he looked, she was peeing. He left the store immediately and drove to his LaRose Avenue apartment. On arrival, he went into the bathroom and turned on the bath faucet. He tossed a diaper on the toilet seat and left to call A.C. The diaper was a child’s diaper. He explained that he “collected random diapers”, “kind of like the trinkets”. When C.H. emerged from the bathroom, she was wearing the same clothes with the diaper. He did not know if C.H. had bathed herself or not. He did not know if C.H.’s skirt was soiled. He took a photograph of C.H. playing with his cat and sent it to A.C. At about 5:30 or 6:00 p.m., A.C. called and asked that he pick them up. C.H.’s mother screamed into the phone. S.C. did as asked. The drive was awkward. He did not recall if C.H.’s mother said anything during the drive. By 6:00 or 6:30 p.m., S.C. dropped both women off at their mother’s home.
106S.C. denied the conversation described by C.H.’s brother. He denied that he and A.H. “hung out” or went for drives. He took A.H. to Centennial Park a handful of times to teach A.H. how to drive a stick shift.
POSITIONS OF THE PARTIES
107The Crown’s position is that C.H. is a credible and reliable witness. While there are some inconsistencies and gaps, these relate to peripheral matters. C.H.’s core allegations of what was done to her and by whom remained consistent. Moreover, C.H.’s account is supported by other evidence.
108The defence theory is that C.H.’s testimony lacks both credibility and reliability. Defence counsel argues that C.H.’s testimony is devoid of any detail and provides a narrative that is both evolving and changing. Further, many of her memories are recovered and possibly impacted by her consumption of psychedelics as a child. Also, C.H.’s interpretation of events from when she was a young child are suspect because C.H. now believes S.C. to be a pedophile. Consequently, C.H. has interpreted innocuous events through this biased lens.
109With regard to C.H.’s credibility, the defence argues that C.H. has “lied” and “fabricated” some aspects of her evidence, including her drug use and the circumstances underlying the reporting of the allegations, particularly, the extent to which C.H. has spoken with her aunt and brother about the alleged abuse.
THE CHARGES
110Count 1 is an allegation of sexual assault. Specifically, it alleges that S.C. sexually assaulted C.H. between January 1, 2013, and December 31, 2016, when C.H. was between three and seven years old. To find S.C. guilty, the Crown must prove the following essential elements beyond a reasonable doubt: (i) that S.C. intentionally touched C.H.; (ii) that S.C. intentionally touched C.H. in circumstances of a sexual nature; (iii) that C.H. did not consent to the sexual touching; and (iv) that S.C. knew C.H. did not consent to the sexual touching.
111Count 2 is an allegation of sexual interference. Specifically, it alleges that S.C. – between January 1, 2013, and December 31, 2016 – directly or indirectly touched C.H.’s body for a sexual purpose, knowing she was under sixteen years of age. To find S.C. guilty, the Crown must prove the following essential elements beyond a reasonable doubt: (i) that C.H. was under sixteen years of age; (ii) that S.C. intentionally touched C.H.; and (iii) that the intentional touching was for a sexual purpose.
112In this case, there is no dispute that C.H. was a child and incapable of consent at the time of the alleged touching. What is disputed is (i) whether the alleged acts of intentional touching occurred; and (ii) if so, whether the touching occurred either in circumstances of a sexual nature (Count 1), or was for a sexual purpose (Count 2). This will be the focus of my analysis.
Nature and Purpose of Touching
113The offences of sexual assault and sexual interference are quite distinct. The intentional touching for the offence of sexual assault need only occur “in circumstances of a sexual nature”. Proof of an improper or ulterior sexual purpose is not required. The accused’s subjective state of mind is relevant, but not determinative.
114In R. v. Chase, [1987] 2 S.C.R. 293, at p. 302, the test for touching “in circumstances of a sexual nature” was described as follows:
The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: ‘Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer’. [citations omitted] The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant [citations omitted]. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [Emphasis added]
115More recently, in R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at paras. 73-74, Benotto J.A., for the Court of Appeal for Ontario, explained the test as follows:
The objective test requires the court to look to all the circumstances surrounding the conduct to determine on an objective basis whether it was of a sexual nature and violated the sexual integrity of the complainant: R. v. Litchfield, [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127, at p. 345 S.C.R.
The mental element in sexual assault and indecent assault is the intention to touch. Proof of sexual purpose is not required because the "factors which could motivate sexual assault are said to be many and varied . . . To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment", which is to protect the sexual integrity of all persons: Chase, at pp. 302-303 S.C.R. As the Supreme Court stated in R. v. Ewanchuk, supra, at para. 28:
Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy . . . It follows that any intentional but unwanted touching is criminal.
116In contrast, the offence of sexual interference requires intentional touching for a “sexual purpose”: R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at paras. 51-53.
117The defence relies on several authorities to argue that in this case, there is an absence of evidence that any touching was done in circumstances of a sexual nature or for a sexual purpose: R. v. Zimmerman, 2014 ONSC 5694, at paras. 11-12, 27-30; R. v. E.K., (unreported decision dated September 19, 2016 with a redacted court file number); R. v. D.C., 2024 NSPC 1, at paras. 27, 30-33, 38-47; R. v. S.E.A., 2011 MBQB 18, at paras. 27, 33-26; R. v. M.M., 2002 NSPC 37, at paras. 11-14. I have considered all of the decisions submitted. I find them to be of limited assistance. The decisions highlight the careful approach required when considering allegations involving the touching of young children to determine if the acts were “in circumstances of a sexual nature” or for a “sexual purpose”. It is trite law that even if I reject S.C.’s evidence, this is not proof of guilt: Zimmerman, at para. 27. It is also trite law that absent some sexual element to the touching, it is not enough for the Crown to point to conduct by the defendant that may be viewed as odd, suspicious, or even socially unacceptable: Zimmerman, at para. 30. Indeed, even C.H. agreed that many acts were not a concern without more. Further, I am mindful that as recognized by the decision of S.E.A., at paras. 38-39, a reasonable doubt may arise from the existence of internal inconsistencies or the absence of important details in a complainant’s account: see also R. v. Stewart (1994), 18 O.R. (3d) 509 (C.A.), at p. 517, 70 O.A.C. 370, leave to appeal refused [1994] S.C.C.A 290; R. v. Norman (1993), 16 O.R. (3d) 295, (C.A.), at pp. 312-14, 68 O.A.C. 22.
LEGAL PRINCIPLES
The Presumption of Innocence and Burden of Proof
118S.C. is presumed innocent. That presumption remains with him unless and until the Crown establishes his guilt on each offence beyond a reasonable doubt. That heavy burden of proof never shifts. S.C. did not have to testify. He did not have to call any evidence. There is no onus on S.C. to prove anything. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms.
119The standard of proof beyond a reasonable doubt is an exacting one. While the Crown is not obliged to establish guilt to an absolute certainty, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable, or likely guilt: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242; R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 13-14. S.C. can only be found guilty if I am sure that he committed the offences.
120As S.C. testified, in assessing whether the Crown has proven his guilt beyond a reasonable doubt, I must apply the principles set out by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-58.
121An application of W.(D.) ensures that my analysis of the evidence does not devolve into a credibility contest between the two key witnesses –C.H. and S.C. An application of W.(D.) also ensures that the presumption of innocence and the Crown’s burden of establishing guilt beyond a reasonable doubt operate properly. A verdict of guilt must not be based on a preferred version of events: see R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6, 8; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21. Doing so would reverse the burden of proof: R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 61-62.
122Ultimately, I may find S.C. guilty only if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt. Applying W.(D.), if I believe S.C.’s evidence, I must acquit. If I do not believe it, but it leaves me with a reasonable doubt, I must acquit. Further, even if S.C.’s evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced of his guilt beyond a reasonable doubt.
Child Witnesses – Common Sense Approach Required
123Given C.H.’s young age at the time of the alleged acts, a common-sense approach is required when assessing her testimony. Inconsistencies in her testimony, particularly in relation to peripheral matters such as time and location, must be considered in the context of her age when the events are alleged to have occurred: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134.
124Delayed disclosure and incremental disclosure of the alleged abuse, standing alone, do not adversely impact C.H.’s credibility or reliability: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; Kruk, at paras. 41, 50. It is well recognized that there is no standard response to trauma. The reasons for delayed reporting are many and include a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider. The same is true of incremental disclosure: R. v. D.P., 2017 ONCA 263, at paras. 29-31, leave to appeal refused [2017] S.C.C.A. No. 261.
125In this case, C.H.’s evidence related to events that occurred when she was between four and seven years of age. She was thirteen at the time of her statement to Detective Constable Wegner and sixteen when she testified at trial. As stated in R. v. C. (P.J.), 2025 ONCA 196, at para. 41, “[t]here is a longstanding recognition in our law that memories formed as a child can be expected to contain gaps in respect of details, including time and place”.
Corroboration Not Required
126Section 274 of the Criminal Code states that corroboration is not required for a conviction. In other words, C.H.’s testimony, if accepted, is sufficient on its own to convict. This recognizes that sexual violence does not always leave physical evidence such as marks or DNA: see R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 61.
127That there is no legal requirement for corroborative evidence applies equally in cases of recovered memories: see R. v. P.B., 2024 SKCA 77, 500 D.L.R. (4th) 586, at para. 67, aff’d [2025] S.C.J. No. 8 (S.C.C.). Courts recognize that individuals can suppress and recover memories of traumatic events: see R. v. Tan, 2023 ONSC 3750, at paras. 115, 117.
128To be confirmatory, evidence need not directly “confirm the key allegations of sexual assault” or “directly implicate the accused”. What matters is whether “it is capable of confirming or supporting certain aspects of a witness’s credibility or reliability in the context of the specific challenges made by defence counsel”: R. v. S.R., 2023 ONCA 671, at para. 7, quoting R. v. Primmer, 2021 ONCA 564, at paras. 33, 38-42, leave to appeal refused [2021] S.C.C.A. No. 462 and R. v. Demedeiros, 2018 ABCA 241, 431 D.L.R. (4th) 650, at paras. 8-10, aff’d 2019 SCC 11, [2019], 1 S.C.R. 568; R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at pp. 331-33.
129As explained more recently by the Court of Appeal for Ontario, “[t]o be given confirmatory weight, evidence need only be more consistent with the complainant’s version than with another version”: R. v. J.M., 2025 ONCA 597, at para. 11, quoting R. v. Varghese, 2024 ONCA 555, 172 O.R. (3d) 510, at para. 49, leave to appeal refused [2024] S.C.C.A. No. 395.
Recovered Memories
130C.H.’s testimony may be found credible and reliable without expert evidence on memory suppression and recovery: R. v. François, [1994] 2 S.C.R. 827, at p. 840; R. v. Case, 2024 ONCA 900, at paras. 11-13, aff’d 2026 SCC 6; R. v. R.D., 2019 ONCA 132, at paras. 1-4.
131While there is no legal requirement for corroborative evidence, it can be highly valuable when assessing the reliability of recovered memories. As explained by Dawe J. (as he then was) in R. v B.B., 2023 ONSC 396:
[89] The basic requirement in criminal cases that the Crown must prove S.C.'s guilt beyond a reasonable doubt always requires inculpatory evidence to be carefully examined. The possibility that witnesses who purport to be remembering distant events may not be doing so accurately always needs to be given serious consideration, even when the witnesses claim to have held their memory continuously in their minds since the time of the remembered events.
[90] In my opinion, the need for caution becomes heightened when, as in this case, a critical prosecution witness claims to have suddenly "recovered" a long-forgotten memory. At the very least, such "recovered memories" are atypical as a matter of everyday experience, which I think calls for them to be given especially close and careful scrutiny.
[93] I am prepared to accept for the purpose of my analysis in this case that at least some recovered memories can be real, and that it is thus possible that [the complainant] now accurately remembers an event that really did happen to her as child, even though she then "repressed" this memory for more than two decades. [Emphasis in original]
[94] However, I also accept that it is possible that her present memory is a confabulation. My common sense assumptions about how human memory and imagination work do not permit me to draw any firm conclusions about which of these competing possibilities is more likely, or by how much.
[95] However, that is not my task in this case. Instead, the criminal burden and standard of proof requires the Crown to satisfy me that the possibility of [the complainant]'s recovered memory being false is something I can safely dismiss as having been disproved beyond a reasonable doubt. The Crown will only be able to meet this burden if it can point to evidence that permits me to draw this conclusion.
[97] As a practical matter, the Crown will not be able to meet its burden of disproving the possibility of [the complainant]'s recovered memory of being sexually assaulted being a figment of her imagination unless it can point to some independent evidence that confirms the reality and accuracy of her present memory.
132The circumstances of each case must be considered. In circumstances where “the court is attempting to determine the truth of memories of distant events, the evolution of the disclosure and the process of recovery of the memory is crucial": R. v. P.T., 2025 ONSC 6630, at para. 37, citing an article by Marc Rosenberg (as he then was) in Alan D. Gold’s Collection of Criminal Law Articles (Toronto: LexisNexis, 1995) ADGN/RP-005, at paras. 50-51.
ANALYSIS
Application of W.(D.)
133As S.C. testified, I will begin my analysis with an application of the principles set out in W.(D.).
134The first step in W.(D.) requires that I determine whether I believe S.C.’s testimony. If so, I must acquit.
135While there is nothing about the manner in which S.C. testified that causes me to reject his testimony, the same is not true for its substance. For reasons I will explain, I reject S.C.’s denial of any inappropriate touching. I also reject S.C.’s testimony where it conflicts with that of C.H.’s brother and aunt. I do not intend to address every inconsistency. Rather, I will focus on my three main general concerns with S.C.’s testimony.
136First is the violation of the rule in Browne v. Dunn, [1893] 6 R. 67 (H.L.). The rule in Browne v. Dunn is grounded in fairness. It requires that before evidence is called to contradict a witness on an essential issue, the witness is asked about the anticipated evidence and given an opportunity to state their position on it: see, Final Instruction 47, Watt’s Manual of Criminal Jury Instructions (2025, Thomson Reuters: Toronto). In my view, that rule was violated in this case because C.H.’s aunt was never asked about S.C.’s significantly different account of events concerning the day that S.C. photographed C.H. wearing a diaper.
137Many circumstances of that day are not disputed, including:
(i) S.C. was left alone with C.H. for the day.
(ii) At the start of the day, C.H. was not wearing a diaper. By that age, she was no longer wearing diapers.
(iii) At the end of the day, C.H. was wearing a diaper S.C. had given her.
(iv) S.C. photographed C.H. in the diaper and showed the photograph to C.H.’s aunt.
(v) S.C. was never again allowed to be alone with C.H.
138However, S.C.’s narrative of that day differed significantly from that given by A.C. (i.e., C.H.’s aunt), yet A.C. was never cross-examined about this difference. In my view, this is a material issue given that both S.C. and A.C. agree that C.H. was never again left alone with S.C. Was this because C.H.’s mother was upset over a single photograph being taken of C.H. wearing a diaper as claimed by S.C.? Or, was it because A.C. was suspicious of S.C. after she returned home from work and was shown “a collection” of photographs of C.H. playing while wearing a diaper?
139I recognize that the rule in Browne v. Dunn does not require counsel to slog through “every scrap of evidence on which a party desires to contradict the witness for the opposite party”: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 81. See also: R. v. B.B., 2024 ONCA 788, at paras. 9-12. In this case, however, A.C.’s testimony about when, why, and who made the decision that C.H. would never again be left alone with S.C. was central to the case. Despite its materiality, A.C. was never cross-examined about the following:
her testimony that she first heard that S.C. put C.H. in a diaper when S.C. called her at her work. [S.C. said C.H. had wet herself at Honest Ed’s. S.C. testified that he left a voice mail message for A.C. since her phone was turned off while she was at a Santo Daime meeting];
her testimony that she first saw the photograph when she returned home from work [S.C. testified that he sent the photograph to A.C.’s phone while she was at a Santo Daime meeting];
her testimony that C.H. was never again left alone with S.C. because of her concerns after being shown S.C.’s “collection” of photographs of C.H. [S.C. testified it was C.H.’s mother who refused to allow C.H. to be alone with him and that she had screamed into the phone when A.C. called him for a ride home from the Santo Daime meeting];
her mode of transport that day [S.C. testified that he picked A.C. and C.H.’s mother up at C.H.’s grandmother’s home and drove them to the Santo Daime meeting. He then picked them up about five hours later, and drove them back to the grandmother’s home. He described the drive back as “awkward”];
whether the grandmother had a cleaning job and was at this job on the day A.C. was shown the photograph; and,
what happened to the photograph(s) of C.H. [S.C. testified that “they” made him delete it].
140I recognize that there was no request to recall A.C. That, however, is not fatal to considering this factor when assessing S.C.’s credibility: Quansah, at paras. 117-121; R. v. Paris (2000), 138 O.A.C. 287, at para. 18, leave to appeal refused [2001] S.C.C.A. No. 124 (S.C.C.); R. v. Merasty, 2023 SKCA 32, at para. 49.
141Second, S.C.’s testimony about the Honest Ed’s event lacks credibility. I reject it in its entirety. In my view it is a contrived account designed to explain why he admittedly took a photograph of C.H. wearing a diaper at an age when C.H. was no longer wearing diapers and had been in his exclusive care. The more troubling aspects of S.C.’s account are the following:
When asked during cross-examination if C.H.’s skirt was also soiled, S.C. did not recall. I find this lacks credulity given his other evidence that on seeing the puddle of pee, he panicked and wanted C.H. out of her soiled underwear and cleaned up. S.C. testified that after his call to C.H.’s aunt, C.H. emerged from the bathroom in the same clothing other than the diaper instead of her soiled underwear. Applying common sense, logic and human experience, C.H.’s skirt would have also been heavily soiled with pee. Interestingly, S.C. said nothing about C.H.’s footwear or any leg clothing (e.g., socks, stockings) which too would have been heavily soiled with pee.
When asked during cross-examination if C.H. was given one of his diapers to put on, S.C. testified that he tossed a “child size” diaper to C.H. He explained that he collected “random diapers”, just as he collected other “trinkets”. However, this was the first that S.C. identified children’s diapers as an item he collected. Prior to this question, S.C. testified that he collected baby items such as soothers, stuffed animals, and childlike clothes, all to assist him in creating a safe world in which he had a “childlike mind”. That he happened to have a diaper that fit C.H. does not fit this narrative. Collecting “random” diapers does not assist in creating a childlike setting for S.C. to feel safe and free from his troubled childhood. The only rational conclusion is that S.C. possessed a diaper that fit C.H. because he had her wear them as she alleged.
When asked about whether C.H. had a bath when they returned to the LaRose apartment, the defendant was adamant that he did not know. He explained that he simply turned on the tub faucet to ensure C.H. did not burn herself but immediately left to call C.H.’s aunt, leaving the faucet on. Although the door was slightly ajar, he could not see the bathtub. When C.H. came out, she was now wearing the diaper he tossed in with all of the same clothes. Only then did S.C. go into the bathroom to put the soiled underwear in a bag. Again, applying common sense, logic and human experience, it beggars the question of why S.C. would leave a four-year-old child unsupervised in a bathroom with a running faucet if he was concerned that C.H. would burn herself.
S.C.’s account of times of that day also make no sense. S.C.’s narrative of that day was that upon arriving at the apartment, he and C.H. went to the bathroom and he ran the faucet. He then left to call C.H.’s aunt. He believed the call occurred at around 4:00 p.m. However, S.C.’s narrative was also that he dropped C.H.’s aunt and mother off at 1:30 p.m., was at Honest Ed’s within the next ten minutes, and the peeing incident occurred shortly after their arrival. S.C. testified that he panicked and returned immediately to the LaRose Avenue apartment. Based on this account, their arrival at the LaRose apartment would have been at about 2:30 p.m.
142Third, it struck me that S.C. tried to minimize the nature of his relationship with C.H.’s brother. In my view, this was an attempt to bolster his denial of having made a statement to C.H.’s brother that he found it “hot” to put his wife in a diaper and have her pee into it. S.C. agreed that his role was as a “father figure” but explained that this described his role with C.H.’s family generally, not the brother. He agreed that he drove C.H.’s brother to dance practices but explained that this was just a “few times” when C.H. was around four or five and just a couple of times after that. During cross-examination, S.C. explained that C.H.’s brother “had his own life doing his own thing” so he “wasn’t really interacting” much with him. C.H.’s brother had a different account of their contact. The brother testified that at one point, S.C. regularly drove him to his twice-weekly dance practices. Also, as a teenager, he and S.C. would “hang out”, go for drives and smoke weed. I accept the brother’s testimony on this issue.
143Having rejected S.C.’s denial of any inappropriate touching of C.H., the second step of the W.(D.) analytical framework requires that even if I do not believe the defendant’s testimony, I must acquit if it, or any other evidence leaves me with a reasonable doubt. It does not. When I assess S.C.’s evidence in the context of all the evidence adduced at trial, it does not raise a reasonable doubt about his guilt.
144My rejection of S.C.’s testimony as it relates to the allegations involving C.H. and his statement to C.H.’s brother does not assist the Crown in discharging its heavy burden of proving all essential elements of each offence beyond a reasonable doubt: Kruk, at paras. 61-62. In other words, to use my disbelief of S.C.’s testimony as evidence of guilt constitutes an error of law: R. v. Warsame Dore (2004), 190 O.A.C. 299, at paras. 4-6, leave to appeal refused [2004] S.C.C.A. No. 517.
145At the third step of W.(D.), I must ask whether the evidence that I do accept proves S.C.’s guilt beyond a reasonable doubt. For reasons I will explain, I find that this heavy burden is met in relation to one of the acts alleged, namely, that the defendant had C.H. sit on his face and pee into a diaper. I am satisfied that this one act satisfies all essential elements of Counts 1 and 2.
Has the Crown Proven the Offences Beyond a Reasonable Doubt?
146The third branch of W.(D.) requires that I be satisfied of the credibility and reliability of C.H.’s evidence. In assessing C.H.’s evidence, I am guided by the applicable principles as set out by the Supreme Court of Canada in dealing with young witnesses: W.(R.), at pp. 134-35; François; R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55.
147C.H. is now 16 years of age. While mature for her age, she is still young. She was 13 years old when she first disclosed the allegations. She was a young child at the time of the alleged incidents, which occurred more than a decade ago. In assessing her testimony, I have adopted a common-sense approach. Her inability to recall which apartment the acts occurred in, her age, and whether the acts occurred on the same or different sleepovers, does not mean that she has misconceived what happened and who did it. Children cognitively process information differently from adults. They experience the world differently. This does not mean, however, that the standard of proof is lowered when dealing with allegations involving a young child. There is only one standard of proof: proof beyond a reasonable doubt. In determining whether this burden is met, the credibility of every witness must be carefully assessed.
148Defence counsel argued that C.H. lacks credibility because C.H. has been untruthful about her drug use and the extent of the discussions she had with her aunt and brother about the alleged abuse. I disagree.
149C.H. explained that at the time she reported the abuse to the school principal, she was discussing the incidents a lot. Given that C.H. never intended to make a police report and only hoped that by speaking with the school principal, S.C. would be fired, it makes sense that when the police were notified, C.H. felt that she was now being asked to speak a lot about events, previously kept secret.
150That inconsistencies exist between C.H.’s two police statements is not surprising. This does not cause me concern. At the outset of the meeting with Officer Kline, C.H. was told that because he was a primary response officer, he did not want to get into details. Twelve minutes into the interview, C.H. started crying and the interview stopped. As for the meeting with “Sandy”, no record exists of this discussion. This too does not concern me as Sandy’s purpose was to ensure the safety of C.H.’s home environment. Based on the record before me, there is nothing to suggest that Sandy was investigating the allegations.
151As for C.H.’s testimony about her ingestion of psychedelics, C.H. was not asked about this during her police interviews. This issue was first raised at the preliminary hearing. At trial, C.H. testified that she was surprised by this line of questioning. It was only during cross-examination at trial that C.H. was shown a photograph taken at a Santo Daime meeting. C.H. testified that the photograph brought back some memories of having attended such meetings. In my view, C.H. was not evasive, or less than forthcoming. Her explanation makes sense.
152I find that C.H. is a credible witness. Her testimony was quite compelling. She told the truth about what she believes occurred to the best of her ability. C.H. was an impressive witness. She is mature beyond her years. During the over eight hours of cross-examination, she thought carefully about her answers. She was never argumentative or defensive. She candidly admitted the many instances when she was uncertain of her memory and the possibility that she may have inadvertently filled in gaps with false memories.
153There are, however, both internal and external inconsistences in C.H.’s account. She was uncertain about whether there were one or two sleepovers, the apartment where the touching occurred, her age at the time, and whether the bathing, hugging and peeing into a diaper all occurred during the same sleepover. Such weaknesses are understandable in the context of this case, which includes C.H.’s young age at the time, the passage of time since the events, and C.H.’s explanation that, as she got older, she gained a realization of what happened. The incremental nature of her disclosure is also entirely understandable in the circumstances of this case. The authorities were only notified after C.H. learned that S.C. was driving a bus at her school and actively asking about her. C.H. was fearful. She and her brother acted out of this fear, not out of any animosity or other ill will towards S.C.
154Ultimately, I find C.H. to be a truthful witness. I am satisfied as to the honesty of her testimony about what she believes happened to her and by whom. C.H. fairly conceded points she could not remember and issues on which she is now uncertain, including whether S.C. had an erection when she sat on his lap during drives, whether she actually “saw” diapers in his car during drives, and her statement to Officer Kline that S.C. smacked her butt.
155That C.H.’s testimony is credible, however, is not enough. The real issue is the reliability of her evidence. In my view, aside from C.H.’s young age and the passage of time, there are concerns with the reliability of her evidence, the impact of which must be viewed cumulatively.
156First, I find that C.H. is mistaken about having a sleepover at S.C.’s Royal York Road apartment. She is also mistaken about going on drives alone with S.C. when she was around six or seven years old. In my view, this testimony conflicts with other evidence from her aunt and S.C., that C.H. was not left alone with S.C. after the photograph incident. I am also satisfied that the photograph incident occurred at the LaRose apartment since S.C. was married by the time he moved into his Royal York apartment.
157Second, at least some of C.H.’s memories of the alleged abuse are recovered memories. C.H. testified that she “experienced” the defendant changing her diaper but agreed she was “not sure” if the rubbing of baby powder was something she always remembered. C.H. also testified that she has always remembered the sleepover during which she was hugged from behind and peed into the diaper while sitting on S.C.’s face. However, C.H. explained that the reason for the inconsistencies about her age at the time of the sleepover was because of “memory loss”.10 Having carefully and repeatedly reviewed C.H.’s testimony, I am left with much uncertainty about which acts were the subject of suppressed memories and which are of events that C.H. has always remembered but gained a greater realization of as she matured.
158Third, A.C.’s testimony that C.H. was repeatedly exposed to psychedelics as a child is quite concerning. Based on C.H.’s performance as a witness, there would appear to be no lasting impact on her mental abilities. Nor is there any evidence that C.H.’s ingestion of psychedelics occurred proximate to when any of the alleged acts occurred, or C.H.’s recovery of any memory of the same. That said, the onus is on the Crown to prove that C.H.’s memories are reliable and meet the high standard of proof in a criminal trial.
159While Dr. Hendricks testified that at its “highest” he could only say that C.H.’s memories “might” have been impacted, there can be no dispute that the ingestion of psychedelics is dangerous. They are controlled substances, the very possession of which is illegal. Common sense suggests that any exposure to psychedelics as a child is harmful and carries many risks. In this case, A.C.’s testimony is that C.H. consumed psychedelics during the same general timeframe as the alleged abuse. Given the evidence at trial, I am not satisfied of the reliability of C.H.’s memories absent confirmatory evidence. In so finding, I note that my task is not to choose which version I prefer, but to ask whether the Crown has satisfied me beyond a reasonable doubt that C.H.’s testimony is reliable. Interestingly, C.H. had no memory of being a flower girl at S.C.’s 2015 wedding and little memory of attending Santo Daime meetings during which members commonly purge into buckets. Common sense suggests that these would be memorable events yet C.H. has little to no memory of either event.
160Fourth, to the extent that at least some of C.H.’s memories are recovered memories, there is a lack of information about when and how the memories were recovered. This makes any assessment of their reliability challenging. As observed in R. v. P.T., 2025 ONSC 6630, at para. 30, “[t]he law is highly sensitive to memory issues which may implicate the reliability of testimony”, citing R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at paras. 45-46. See also: R. v. R.C., 2023 ONCA 382, at para. 6.
161In assessing C.H.’s recovered memories, there is little information available. C.H. agreed with the suggestion that others may have helped in the recovery, but offered no further details of this. C.H. recalled researching “sexual assault” on Google and concluding from her research that she had been “groomed” from birth. She explained that as she got older, she gained a better realization of what was happening, eventually got “fed up”, and disclosed to her brother the fact that she had been abused.
162Given these concerns, C.H.’s testimony on its own does not satisfy me beyond a reasonable doubt. In my view, it would be unsafe to rely solely on C.H.’s testimony. I am satisfied, however, that there is confirmatory evidence of one alleged act, namely that C.H. sat on S.C.’s face and peed into a diaper.
Confirmatory Evidence of the Diaper Peeing Incident
163Confirmatory evidence of the act of C.H. sitting on S.C.’s face and peeing into a diaper is found in the testimony of C.H.’s brother.
164C.H.’s brother testified that he learned of the abuse weeks prior to the day C.H. returned from school and told him about S.C.’s announcement on the school bus. C.H. never provided details but mentioned diapers, a detail that “clicked” because he immediately recalled the conversation with S.C. years earlier during which S.C. described a sexual fetish involving peeing into diapers. The brother recalled S.C. said he found it “hot” when he put his wife in a diaper and she peed into the diaper.
165Upon hearing that S.C. was a bus driver at C.H.’s school, the brother wanted to address the problem “head on”. He hoped that by calling the school anonymously, S.C. would be fired.
166S.C. has denied making this statement. I reject his denial. The brother testified that at the time of this conversation, he was a teenager and regularly hung out with S.C. They would go for drives, smoke weed and talk. The conversation is one that would stand out. Whether or not S.C. actually engaged in this conduct with his wife is irrelevant. In other words, what matters is that the statement was made, not the truth of its contents. The words spoken provide circumstantial evidence of S.C.’s diaper fetish.
167S.C. admitted that he asked his wife to wear a diaper. This admission partially confirms the veracity of the brother’s testimony. C.H.’s brother would have no other means of knowing this. I accept the brother’s testimony that to this day, he is unaware of the details of C.H.’s allegations. C.H. similarly testified that she has not told her aunt or brother about sitting on the defendant’s face and peeing into a diaper. This is a highly unusual act. It is not an act that could easily be the subject of confabulation or a mistaken memory.
168While the brother’s testimony was adduced without objection, in my role as the evidentiary gatekeeper, it is important that I address the admissibility of S.C.’s statement.
169In my view, S.C.’s statement to the brother ought to have been the subject of an application by the Crown. The only evidentiary application filed by the Crown was a “Motion for Directions Re Other Discreditable Conduct”, to address the admissibility of evidence that S.C. regularly wore diapers as a condition of his Paraphilic Infantilism diagnosis. In its Factum, Crown counsel argued that diaper wearing was not disreputable conduct and was highly probative on the issue of identity to rebut the anticipated defence that C.H.’s biological father was a third-party suspect. No reply materials were filed. At trial, S.C. also relied on his diaper wearing habit in part to suggest that because C.H. knew of this habit, she now viewed him as a “weirdo” and “pedophile” and has applied a highly biased lens to otherwise innocuous acts.
170Despite the absence of any objection to the admissibility of the brother’s evidence, I have given great thought to the admission and use of S.C.’s statement.
171On the one hand, S.C.’s comment is a statement against his interest which is presumptively admissible. However, contrary to the Crown’s submission that the statement is not character evidence, I find that it is. As such, it is presumptively inadmissible.
172In my view, the statement meets the definition of “character evidence” as recently set out in R. v. Hussein, 2026 SCC 2, at para. 30. In Hussein, “character evidence” is defined as “any proof that is presented in order to establish the personality, psychological state, attitude, or general capacity of an individual to engage in particular behaviour”: at para. 30, (citation omitted). In this case, Crown counsel relies on S.C.’s statement to support C.H.’s credibility and as proof of the sexual nature and purpose of the act.
173Although no voir dire was requested or conducted,11 as the gatekeeper, I have given careful consideration to the admissibility of S.C.’s statement. I am satisfied that the statement is admissible. I am further satisfied that no prejudice arises from the Crown’s failure to file an application to hold a voir dire to determine the admissibility of the statement: see, for example, R. v. C.H., 2023 ONCA 622, at paras. 5-6.
174S.C.’s statement is relevant to assessing the reliability of C.H.’s evidence. In my view, the statement has significant probative value. In so finding, I recognize that S.C.’s remark concerns his wife, who is not only an adult but a long-term intimate partner. The context of an adult consensual relationship stands in stark contrast to allegations involving a young child to whom he stood in a position of trust: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 129-130; R. v. Hoggard, 2021 ONSC 5365, at paras. 54-57.
175However, in my view, the statement relates to an expressed interest in conduct that is so highly specific and distinctive that it defies coincidence or other innocent explanation: Handy, at para. 82; R. v. Norris, 2020 ONCA 847, at para. 18. In so finding, I have considered the risk of collusion and confabulation. I am satisfied that C.H.’s allegation is not the product of either: Handy, at paras. 41-42, 48, 55, 73-82, and 137-46; R. v. Bent, 2016 ONCA 651, 32 C.R. (7th) 437, supplementary reasons at 2016 ONCA 722; R. v. J.C., 2021 ONCA 787, 2021 CarswellOnt 15628, at para. 70.
176Finally, given that this is a judge alone trial, I am satisfied that there is no risk of prejudicial moral or reasoning prejudice: see: Handy, at paras. 100, 139, 144-46; R. v. J.H., 2018 ONCA 245, at para. 23. Accordingly, at the final stage of weighing the probative value of admitting the statement against any risk of prejudice, I find that S.C.’s statement is admissible.
Confirmatory Evidence of Sexual Nature and Purpose of Touching
177Confirmatory evidence also exists that S.C. had a sexual purpose when he asked C.H. to sit on his face and pee into a diaper. Even if he had no sexual purpose, I am satisfied that this act is intentional touching in circumstances of a sexual nature.
178Specifically, I find that the photograph incident demonstrates S.C.’s sexual interest in C.H. and provides circumstantial evidence that in asking C.H. to sit on his face and pee into a diaper, S.C. had both a sexual purpose and that this act of intentional touching was done in circumstances of a sexual nature.
179C.H.’s aunt testified that on a day when she left C.H. alone in S.C.’s care, she returned from work and was shown a “collection” of photographs that S.C. had taken of C.H. playing while wearing a diaper and short skirt. I accept this evidence. In my view, S.C. took numerous photographs of C.H. wearing a diaper because of his sexual interest in her. There was no evidence that S.C. otherwise had a habit of taking photographs of C.H. I recognize that a sexual interest is not determinative of a sexual purpose. Having considered all the circumstances of the act, including that S.C. was alone with C.H. at the time, that he was lying on the couch, that C.H. did not normally wear a diaper and S.C.’s sexual interest in C.H., I am satisfied that the touching was for a sexual purpose.
180Further, the sexual context of this touching would be apparent to any reasonable person. S.C. was alone with C.H. who was about four years old. C.H. did not otherwise wear a diaper. S.C. was lying on the couch and had C.H. sit on his face and pee while his eyes were closed. Considering all of the circumstances of this act, a reasonable person would no doubt conclude that it was in circumstances of a sexual nature.
CONCLUSION
181In my view, a reasonable observer viewing S.C.’s conduct of having a young female child sit on his face and pee into the diaper she was wearing while alone with her, would perceive a sexual context to the conduct. C.H.’s sexual integrity was violated, regardless of S.C.’s purpose. That said, I am also satisfied that S.C. had a sexual purpose when he invited C.H. to sit on his face and pee into a diaper. I need not find whether his sexual purpose was his sole purpose: R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 37.
182Having carefully considered all the evidence, I am satisfied beyond a reasonable doubt that the act of having C.H. sit on his face and pee into a diaper satisfies the essential elements of both Count 1 and Count 2. I will invite submissions on which of the two counts ought to be stayed pursuant to the principle set out in Kienapple v. R., [1975] 1 S.C.R. 729.
J.M. Barrett J.
Released: March 13, 2026
Footnotes
- Some inconsistency exists with regards to dates. C.H. and her brother testified that they went to the school principal in December 2022, the day after S.C.’s bus announcement. Officer Kline’s body worn camera recorded a date of January 11, 2023.
- The Crown explicitly stated during the trial, and reaffirmed during closing submissions, that as proof of the actus reus it relied only on (i), (ii) and (iii). The Crown relied on (iv) and (v) solely as evidence of the sexual nature and purpose of the alleged touching.
- At the preliminary hearing, C.H. testified that the sleepover occurred when she was about three years old.
- Prior to trial, S.C. filed application materials seeking permission to tender evidence to support an anticipated theory that C.H.’s father was an alternate suspect whose acts C.H. mistakenly attributed to S.C. in the process of recovering her memories. As this was a judge alone trial, evidence relating to C.H.’s biological father was tendered without objection. During closing submissions, defence counsel abandoned this theory and argued instead that gaps in C.H.’s memory about her father during the timeframe of the allegations was relevant to assess the overall reliability of her testimony.
- In anticipation of a jury trial, Crown counsel filed a pre-trial application to adduce evidence of S.C.’s use of diapers. As this was a judge alone trial, this evidence went in without objection. While not the subject of any application, evidence was also adduced without objection that (i) the defendant asked C.H.’s aunt to wear diapers; and that (ii) the defendant told C.H.’s brother that he found it “hot” when his wife wore a diaper and peed into it.
- I have not summarized A.C.’s testimony about conduct by C.H.’s father that she viewed as inappropriate given that S.C. abandoned his request to argue that C.H.’s father was a third-party suspect.
- This legal exemption is pursuant to s. 56 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and was not in effect during the timeframe of the allegations.
- A.P. was sixteen years old when she testified at trial. Hearing no concern that allowing A.P. to testify from outside the courtroom would interfere with the proper administration of justice, an order was issued permitting this mode of testimony.
- As will be explained later in these Reasons, there were many critical aspects of S.C.’s account of the Honest Ed’s incident that were never put to either C.H. or her aunt, including: whether the grandmother had a cleaning job.
- C.H. agreed that at the preliminary hearing she said she was three or four years old. At trial, she initially said she was four or five and then settled on “about four”.
- During closing submissions, I invited counsel to address the admissibility and use of S.C.’s statement.