PUBLICATION BAN

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

REASONS FOR JUDGMENT

NISHIKAWA j.

Overview

1The Defendant, Daniel Pringle, is charged with one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, (the “Code”).

2Mr. Pringle is a physiotherapist. The Crown alleges that during physiotherapy sessions that took place on multiple occasions between 2021 and 2022, Mr. Pringle sexually assaulted the complainant, S.B., by touching her vagina with his finger. At the time of the alleged incidents, S.B. was 12-13 years old. She reported the alleged assaults to her parents and police in December 2022 when she was 14 years old.

3The Crown’s position is that Mr. Pringle exploited a relationship of trust with S.B. as her health care practitioner and used the opportunity of performing legitimate physiotherapy to sexually assault her. The Crown submits that S.B. gave cogent and consistent testimony about the assaults and that her evidence ought to be considered with common sense, based on her age at the time of the incidents and at trial. The Crown argues that any inconsistencies in her evidence are peripheral to the core allegations that form the basis of the charge.

4Mr. Pringle, who testified at trial, denies sexually assaulting S.B. He testified that he practiced a form of physiotherapy known as “micro-conditioning” which included light to firm massage in an area that S.B. might have considered sensitive. Mr. Pringle further alleges that S.B. had a motive to fabricate because, at the time she disclosed the allegations to her parents, she was in serious trouble and wanted to regain their trust and support.

5The only issue in this case is whether the Crown has demonstrated beyond a reasonable doubt that Mr. Pringle touched S.B.’s vagina. The defence concedes that if he is found to have touched S.B. as alleged, he would be found guilty of sexual assault.

6This matter has a complex procedural history, which I will not fully canvas here. Two previous trials ended in mistrials. All references to evidence from a previous trial refer to the second trial in February 2025.

Analysis

The Applicable Principles

The Offence of Sexual Assault

7The actus reus of sexual assault has three parts: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 25. The mens rea is demonstrated by showing that the application of the force is intentional, and the accused knows that the complainant is not communicating consent to the particular act in question or is reckless or willfully blind to the lack of consent: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 87. The Crown must prove each element beyond a reasonable doubt.

8In this case, the sexual nature of the alleged touching is not disputed. Moreover, because S.B. was 12-13 years old at the time of the alleged assaults, consent is not at issue. Under no circumstances can a child consent to sexual touching by an adult.

Assessing the Evidence

9Before assessing the evidence, it is helpful to set out the applicable legal principles. First, Mr. Pringle is presumed innocent. Second, the Crown bears the burden of proving the elements of the offences charged beyond a reasonable doubt. It is not sufficient to prove that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, which would be impossibly high.

10In assessing the evidence, the court must follow the approach set out by the Supreme Court of Canada in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at pp. 758. The following analysis applies:

(i) If the court believes the defendant’s evidence, he must be found not guilty;

(ii) If the court does not believe the defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty; and

(iii) Even if the defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown proves the charges beyond a reasonable doubt.

11At the first step of the W.(D.) analysis, a defendant’s evidence should not be considered in isolation but in the context of all the evidence: R. v. Hoohing, 2007 ONCA 577, at para. 15. Thus, if the defendant’s account is believed or leaves the court with a reasonable doubt about what happened, within the context of the totality of the evidence, he must be found not guilty.

12In considering Mr. Pringle’s testimony, I am mindful that a trial judge should avoid assuming that an accused would lie to secure an acquittal, which would be contrary to the presumption of innocence: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 14.

13If, after considering the whole of the evidence, the court is not sure who to believe, this can also give rise to a reasonable doubt: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 11-12.

14In weighing the evidence, I must assess the credibility and reliability of each witness’s testimony. This involves a consideration of the internal consistency of each witness’s testimony and its consistency in the context of the evidence as a whole. I am mindful that in assessing credibility and reliability, I must be careful not to place too much emphasis on the demeanour of any particular witness in court.

15In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 133, the Supreme Court of Canada held that “every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.”

16It is well-established that the evidence of child witnesses must be approached in a common-sense manner, taking into account the age of the witness and the fact that children experience the world differently than adults. In particular, although children may not be able to recount precise details with exactitude, “this does not mean that they have misconceived what happened to them and who did it.”: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55.

17Moreover, a delay in disclosure, standing alone, does not give rise to an adverse inference against a complainant’s credibility. There is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.” In assessing the credibility of a complainant, the timing of disclosure of an allegation or allegations is simply one circumstance to consider in the context of all the evidence: see R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

18In the end, I must determine whether the Crown has met its burden of proof based on the entirety of the evidence heard. My determination is not based on who is more believable, as between the defendant and the complainant, but is guided by the Crown’s burden to prove its case beyond a reasonable doubt.

The Crown’s Evidence

Agreed Facts

19The following facts were agreed upon between the Crown and the defence:

Mr. Pringle is a physiotherapist. He treated S.B. at his physiotherapy clinic, Endeavour Sports Performance and Rehabilitation in Toronto.
S.B. had a total of nine sessions with Mr. Pringle between 2021 and 2022. S.B. was 12 to 13 years old and in grades 7 to 8 during her sessions with Mr. Pringle The treatment sessions were 60 minutes long. The dates that S.B. attended physiotherapy sessions are: February 22, March 4 and 17, November 22, December 1 and 15, 2021 and January 11, February 2 and March 24, 2022.
Micro-conditioning is a therapeutic technique that can involve using the fingers to create low-amplitude, low-pressure oscillatory movements. Micro-conditioning is a legitimate therapeutic technique. It can be performed similarly to the technique demonstrated in the videos presented to the witnesses at trial. The videos are examples of micro-conditioning being performed on a person by a physiotherapist.
The anatomical diagrams presented to the witnesses at trial are accurate depictions of the human body (including the nerves of the pelvic region and the muscles on the front-middle part of the body and thigh).

20It was also agreed between the parties that if the court finds that Mr. Pringle accurately noted S.B.’s injuries in his notes, the treatment areas indicated in the notes were reasonable locations to treat.

S.B.’s Evidence

The alleged assaults

21S.B. was 17 years old when she testified at trial. As a child, S.B. participated in a variety of sports, such as soccer and track, both at school and outside of school. At some point in Grade 6, S.B. had a knee injury that required medical treatment. When she was in Grade 7, S.B. started to receive physiotherapy treatments from Mr. Pringle at his clinic, Endeavour Sports Medicine, on Bayview Avenue. S.B. attended the first session on February 22, 2021 with her mother, V.B. V.B. video-recorded a portion of the session during which Mr. Pringle demonstrated exercises.

22S.B. testified that at a subsequent session, while she was lying on her back on the treatment bed, Mr. Pringle rolled her shorts and underwear down to the middle of her thighs. She testified that he then began to touch the top of her vagina with the pad of his index finger, in both an up and down and circular motion, while using his other hand to massage her hip area. S.B. described the movement as a “slower motion” and about the size of a Loonie. S.B. marked the area that Mr. Pringle touched on a diagram of a child’s body.

23S.B. testified that Mr. Pringle began to touch her vagina approximately 20 minutes into the one-hour session and that it lasted for approximately 20 minutes. S.B. testified that she believed it was 20 minutes because during the one-hour session, the first 20 minutes were usually taken up by resistance testing and the last 20 minutes consisted of exercises. S.B. testified that as Mr. Pringle was touching her, he continued to talk to her about school and sports in a “friendly” manner, as her normally did. S.B. testified that she felt very uncomfortable and scared but that she “froze up” and did not say anything. S.B. testified that she tried to turn her body away a little so he would stop but he told her to move closer to him.

24S.B. testified that the assaults occurred almost every time she saw Mr. Pringle for physiotherapy, and that everything happened in the same way, including how he rolled down her shorts, how he touched her, and for how long. On one occasion, she recalled that he touched her with his pinkie finger as opposed to his index finger.

25The treatment records show that Mr. Pringle discharged S.B. in March 2021. S.B. admitted that when she was discharged in March 2021, her knee injury was getting better because of the physiotherapy treatments.

26In November 2021, S.B. resumed seeing Mr. Pringle for physiotherapy to treat a hip injury. She continued receiving physiotherapy treatments from him until March 2022. At that time, S.B. had not been discharged. S.B. testified that even though her hip was not feeling better, she told her parents that it was so she would not have to keep seeing Mr. Pringle

27On cross-examination, S.B. admitted that during each session, Mr. Pringle performed resistance testing and proper physiotherapy massage on her and that he prescribed exercises. She did not recall Mr. Pringle explaining micro-conditioning to her. She did not recall him giving her a heads-up about what part of the body he was going to touch beforehand but did recall him telling her that he would have to do some work around her hips in order to treat her knee. She did not recall Mr. Pringle explaining that he would massage her inner thigh and groin but admitted it was possible that she did not remember.

28S.B. testified that she only remembered Mr. Pringle performing physiotherapy massage on her hips, not on her lower abdominal area or inner thigh. She agreed that it was possible that she had massage on her inner thigh. When shown the diagram of nerves running through the lower abdominal and upper thigh area, S.B. admitted that Mr. Pringle treated her in the area of the iliohypogastric and ilioinguinal ligament, both of which were close to the vagina. When shown the video of a practitioner performing micro-conditioning on a patient’s femoral triangle area, S.B. agreed that the physiotherapist in the video was touching the patient in an area close to the genital area. She admitted that Mr. Pringle performed the same technique on her in similar areas. The differences that S.B. identified were that the physiotherapist in the video used the fingertips of three to four fingers on the patient, and Mr. Pringle used the finger pad of one finger on her vagina. She also testified that the motion he used was slower than the physiotherapist in the video.

29On cross-examination, S.B. mentioned for the first time that Mr. Pringle touched her clitoris. She testified on re-examination that she used the word for the first time because she looked it up so it would be clear to everyone where on her body he had touched her.

30S.B. testified that she did not tell anyone that Mr. Pringle was touching her vagina while it was happening because she was “nervous and scared”. She did not know if anyone would believe her or what would happen after she told them. S.B. testified that she felt that Mr. Pringle had betrayed her trust in him as a health care practitioner.

Disclosure to parents

31S.B. testified that in December 2022, when she was in Grade 9, she wrote a letter to her parents telling them about the abuse. S.B. testified that a day or two before she wrote the letter, she got into trouble at school because she had confronted a fellow student, E, who was touching another student, X, around her waist. S.B. testified that she asked X how it made her feel, and X told her that it made her uncomfortable. S.B. testified that as a result of her confrontation with E, she was suspended from school a day or two. S.B. testified that her parents were both “really upset” with her. They spoke to her for about an hour about what she had done and what could happen to her.

32S.B. testified that she wrote the letter to her parents because she wanted to explain to them why she got so upset about E touching X. She explained that she disclosed the abuse in a letter because she thought her parents would be sad and did not want to see their reaction. S.B. testified that although she felt nervous about writing the letter, she wanted to tell them about the abuse because it was affecting her a lot, and she wanted to tell them what was going on with her. S.B. testified that at the time, she did not have a good relationship with her parents and did not talk to them about feelings or things that were going on with her.

33S.B. testified that after her parents read the letter, her father suggested they go to the police. She testified that she also wanted to go to the police because she did not want the abuse to happen to any other person.

34On cross-examination, S.B. admitted that she was suspended from school because she bullied and uttered a threat to seriously hurt E. She admitted that the school confiscated her cell phone as part of the investigation. She admitted that the issues that she was having with E were not just a single event. S.B. admitted that she had told police that the day before the incident with E, she told her mother that she wanted to slap E and her mother told her she could not resort to violence. S.B. admitted that she let her mother down within 24 hours and that she cared about her mother being disappointed with her. S.B. admitted that she had a younger sister, and that her parents expected her to be a good example for her. She admitted that after being suspended, she was scared about how her parents would react and what would happen next.

35S.B. admitted that her parents were very angry with her and that she was in a lot of trouble with them. S.B. admitted that her parents told her about potential consequences of her actions, including that she could be expelled from school, that they could be sued, that V.B. could lose her job and that they could lose their house.

36S.B. admitted that when she wrote the letter to her parents, one of the things she was thinking about was the potential consequences of her actions on her family. She felt like they deserved an explanation and admitted that she thought the explanation could prevent the consequences from happening. She admitted that it was also on her mind that she did not want to be grounded because this would limit her freedom to do things like go out with her friends and vape. In the letter to her parents, S.B. told them that she had a “big addiction” to vaping but was not ready to quit because it was the “only way” she stopped smoking weed and cigarettes.

37S.B. admitted that before the letter, her parents were angry and wanted to punish her and that after the letter, they were worried and wanted to help her. S.B. admitted that in the letter, she promised her parents that she would not do anything physical to E but that her parents kept her home from school even after the suspension. S.B. admitted that she had lost her parents’ trust in her and that she wanted to regain it.

38S.B. admitted that when she wrote the letter, she did not plan to tell anyone else about the allegations and was not initially planning to go to the police. She disagreed, however, that once she made a statement to the police, she had no choice but to maintain her story because she would be in even deeper trouble with her parents.

39S.B. admitted that she had told police that she changed a lot between Grade 7 to 9, and that she was getting into a lot of trouble, doing things that she knew were against her parents’ rules like drinking, vaping, and smoking cigarettes and weed. She admitted that she took steps to hide this behaviour from her parents. S.B. admitted that she had anger issues and had been spoken to numerous times by teachers and others. When it was put to her that she offered Mr. Pringle as an explanation for all of her issues, she admitted that it was an explanation for most of them.

40S.B. admitted that in 2021 and 2022, she was struggling with her mental health and had several mental health crises. During that time period, which was over the same period she was being treated by Mr. Pringle, she and her parents sought help from several mental health practitioners, including a guidance counsellor at school and a therapist and doctor at the hospital. She admitted that certain of those practitioners, and her parents, asked her what was wrong and whether anyone was hurting her. S.B. admitted that despite telling practitioners very private details about her life, she responded that no one was hurting her. On re-examination, S.B. testified that she did not tell any mental health practitioners about Mr. Pringle because she was “scared of everything” and not good at communicating her feelings.

Mr. Pringle’s Evidence

41Mr. Pringle is currently 37 years old. He was involved in sports from a young age. He completed a master’s program in physiotherapy in 2011 and received his licence in 2012. In 2014, Mr. Pringle started his own clinic, Endeavour, as a sports medicine rehabilitation facility. He explained that he wanted to use different care models and treatment techniques that he did not have the flexibility to use in other environments. His clinic focused on athletes but also treated a variety of other clients. He opened the location on Bayview Avenue in 2017. In 2022, there were approximately 10 practitioners and three to four administrative staff at the Bayview clinic.

42In treating patient injuries, Mr. Pringle used a technique known as micro-conditioning, which he trained in in 2013. He also employs acupuncture and cupping. He trained in these techniques through a program at McMaster University. Mr. Pringle explained the micro-conditioning often targets the nerves and surrounding tissue, as well as the joints and fascial planes. For example, to treat the leg, Mr. Pringle would rotate the hip to create different planes on which to perform micro-conditioning. The two primary features of micro-conditioning are: (i) the tissue targeted is moved or stretched; and (ii) at the same time, the fingertips or finger pads move in an oscillatory motion at a slow to moderate pace, up and down or in a circle. Mr. Pringle gave an extensive description of micro-conditioning and the rationale for the technique. In essence, the objective is to treat the nervous system and fascial tissue that affects a patient’s pain.

43Three video recordings were admitted into consent. They show a physiotherapist practicing micro-conditioning on a patient in the following areas: (i) the hip adductors, (ii) the femoral triangle; and (iii) the ilioinguinal nerve. When the physiotherapist is treating the hip adductors, the patient is lying on his side with his shorts a rolled down to expose the hip bone. The physiotherapist moves the patient’s leg with one hand while applying light pressure to the hip area with the fingertips if the other hand, in a repeated motion. When the physiotherapist is treating the femoral triangle, the patient is lying on his back as the physiotherapist uses one hand to move the leg and the fingers of the other hand to work up the patient’s leg, ending close to the groin area. When the physiotherapist treats the ilioinguinal nerve, the patient is lying on his back with his leg on the physiotherapist’s shoulder as her fingers work their way up the upper inner portion of the patient’s leg, up to the inner thigh. The motion of the hand performing the micro-conditioning is generally moderate to rapid, back and forth, with the three middle fingers.

44Also in evidence was a video of Mr. Pringle performing micro-conditioning on the shoulder of a patient that Mr. Pringle had uploaded to YouTube before the allegations arose.

45Mr. Pringle testified about where on S.B.’s body he performed micro-conditioning, based on the pain she was experiencing. He testified that in the case of a non-traumatic knee injury, it made sense to treat the hip, ankle and tissue in between. Mr. Pringle kept detailed treatment notes about S.B.’s injuries, treatment plan, progress, areas treated and exercises. The notes indicate that he performed micro-conditioning on S.B. in the following areas: the lower ribs; the quadratus lumborum (QL) and obliques; abdominals across the iliac crest; the lateral hip, under the iliac crest toward the anterior superior iliac spine (ASIS), med right thigh from the vastus medialis oblique (VMO) to the adductor longus; the gluteus medius and maximus; the lateral hip, anterior hip and the anterior lateral hip. S.B. also received acupuncture during a couple of sessions on March 24 and February 2, 2022 in the lateral hip area and under the iliac crest, as well as on the obliques, lateral hip and QL. Mr. Pringle performed cupping to the QL, iliac crest, and across the ASIS. She also received some treatment on her wrists.

46Mr. Pringle denied ever touching S.B.’s vagina with his finger. He denied that during physiotherapy treatment, he rolled S.B.’s shorts down to expose her vagina. In chief, Mr. Pringle testified that if an employee of the clinic walked into the treatment room and saw that, they would be required to report it and his “life would be over.” In cross-examination, he admitted that performing micro-conditioning on a child in the femoral triangle would be treating in a “sensitive area”. Mr. Pringle admitted that he treated S.B. within inches of her vagina but did not touch her genitals.

47Mr. Pringle did not recall discussing treatment in a sensitive area with either S.B. or V.B. but testified that it was his general practice to speak to patients about it and check in with them during the treatment to ask if they were OK. Mr. Pringle testified that V.B. would have known that he was going to treat S.B. in that area because she knew he was going to treat the hip area and V.B. had previously received treatment in that area herself. Mr. Pringle admitted that he did not ask V.B. to stay in the treatment room when he was treating S.B. in the hip or femoral triangle area.

48Mr. Pringle testified that S.B.’s mother, V.B., frequently attended sessions with S.B., including coming into the treatment room to pick her up at the end of a session or popping her head in during a session. Mr. Pringle had also previously treated V.B. When V.B. was not able to attend with S.B., she generally followed up by email, to which Mr. Pringle responded with details about S.B.’s treatment and progress. The Crown and defence agreed that the email correspondence between Mr. Pringle and V.B., filed as exhibits on consent, constitutes a complete record of email correspondence between them pertaining to S.B.’s physiotherapy treatment.

49Mr. Pringle testified that employees of the clinic would frequently come into the treatment room to get treatment tools or to ask him questions. He testified that the curtain on the door of the treatment room had a gap, such that a person walking by could see into the room. A photograph showed a small gap between the curtain and window. The treatment room that Mr. Pringle used at the Bayview clinic was close to the waiting area.

Findings

Credibility and reliability of S.B.

50The defence’s position is that S.B. is neither a credible nor reliable witness. The defence submits that the inconsistencies between S.B.’s evidence at trial and her previous testimony and statements are too significant for her evidence to be believed.

51The defence further argues that S.B.’s evidence should not be accepted because she had a clear and compelling motive to fabricate the allegations against Mr. Pringle The defence argues that after S.B. was suspended from school, she wanted desperately to find a way out of trouble with her parents. Mr. Pringle was an “easy target” because all S.B. had to do was to exaggerate what happened during the physiotherapy sessions with him. Mr. Pringle performed micro-conditioning treatment in areas that could be considered sensitive by a young person and provided a “seed” of discomfort that became the catalyst for the fabricated allegation of sexual assault.

52In respect of the reliability of S.B.’s recollection of the incidents, I am mindful that S.B. was a child when the alleged incidents took place and that she might not recall details such as time and place about something that occurred four to five years ago, when she was 12 or 13 years old.

Motive to fabricate

53The defence does not have a burden to prove that a witness has a motive to fabricate: R. v. Bartholemew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 19-25; R. v. John, 2017 ONCA 622, at paras. 93-95. In addition, the absence of evidence of a motive to fabricate is not the same as affirmative proof of no motive to fabricate. Just because there is no apparent reason for a witness to lie does not mean that the witness is telling the truth: R. v. O.M., 2014 ONCA 503, 318 O.A.C 390, at para. 107. The presence or absence of an established motive to fabricate is merely one factor in assessing a complainant’s credibility: O.M., at para. 108. The issue must be considered in the context of the evidence as a whole.

54I find that S.B. had a strong motive to fabricate the allegations against Mr. Pringle. When S.B. disclosed the alleged assaults to her parents, she was in deep trouble with them. Although she had been behaving problematically since Grade 7, this was the first time she was suspended from school. S.B. admitted that the suspension was the worst thing that had happened. Despite S.B. being in her first few months at a new school, the grounds were serious enough to warrant a suspension. Her parents told her that her conduct could have grave consequences for her and the family. S.B. believed them and perhaps for the first time felt that her conduct could bring real damage to the family.

55S.B. admitted that she had lost her parents’ trust to the extent that they kept her home from school even after the suspension was over. They did not believe that she would not harm E. She knew her parents were very angry with her. As a 14-year-old who was entirely dependent on her parents for everything, this would have been an intolerably distressing situation. S.B. had to do something to regain their trust and to lessen the chance that the consequences her parents warned of would occur.

56The defence relies on R. v. J.S., 2022 ONSC 6641, at para. 149, to argue that I ought to take judicial notice of a tendency in children to lie to get out of trouble or avoid punishment. In that case, cross-examination revealed that the complainant, who was 12 years old at the time of trial and 8 years old when the allegations arose, had a tendency to lie to her mother and the defendant, who was her stepfather. Allen J. found that judicial notice can be taken of the tendency to lie in “some children” to get out of trouble or to avoid punishment, because of their immaturity or limited life experience.

57In my view, in the circumstances of this case, it is not necessary to take judicial notice of a tendency in children to lie to get out of trouble or avoid punishment generally. S.B. admitted to lying to her parents in the past to conceal conduct like drinking, smoking and vaping that she knew was against their rules and that would be met with their disapproval. She admitted to a “pattern” of being dishonest with her parents and that this was also a source of conflict with them. Given her admitted addiction to vaping, lying to conceal it was a regular occurrence. Lying to her parents was not a significant departure for S.B. An admitted tendency to lie is relevant to the credibility of her allegations of sexual assault.

58The question of whether S.B. had a motive to fabricate the allegations against Mr. Pringle, as well as her credibility generally, can and should be assessed in the context of all the evidence, including S.B.’s admission of lying to her parents in the past. Further, I agree with Allen J.’s observation that any tendency to lie on the part of the complainant cannot be ignored in evaluating whether the Crown has met its burden beyond a reasonable doubt: J.S., at para. 150.

59In assessing the complainant’s motive to fabricate, it is relevant to consider that a child may lack an appreciation as to the consequences of telling a lie based on their reduced maturity or stage of cognitive development. S.B. lacked an appreciation of the consequences of her actions toward E until her parents confronted her with them. Similarly, S.B. lacked a full appreciation of the consequences of lying about what Mr. Pringle did.

60The Crown argues that S.B.’s lack of motive to fabricate is supported by the fact that she did not, in the letter to her parents, seek a lesser punishment. While she did not seek a lesser punishment, she admitted that she did not want to be grounded. Moreover, S.B. told her parents that she was not ready to quit vaping and that it would not be “smart” to do so because it allowed her to quit weed. In other words, she was implying that they should allow her to vape. While not a lesser punishment, in the letter, she sought some advantage or leniency from her parents.

Prior consistent statements

61S.B. testified that before she wrote the letter disclosing the alleged assaults to her parents and before the incident with E, she told two friends from school, M and S.H. that she had been sexually assaulted.

62In my view, both prior statements are lacking in sufficient detail to be considered prior consistent statements that could rebut an allegation of recent fabrication. When asked what she told M, S.B. testified that she did not go into details and just said that she had been sexually assaulted before. It was only after S.B. was asked if she told M that it was Mr. Pringle who sexually assaulted her that S.B. testified that she did. There was a complete lack of detail as to what S.B. told M, where or when the disclosure took place, and the nature of S.B.’s relationship to M, including how close they were. No context was provided for the disclosure, such as what brought it about.

63In respect of the disclosure to S.H., S.B. did not recall what she told S.H. In S.H.’s statement to the police, she stated that S.B. had told her that the physiotherapist was “weird with her” when her mom was not in the room and “almost fingered her but didn’t”.¹ S.B. testified that she “probably” said something along those lines. In my view, the disclosure to S.H. is not a prior consistent statement because there is a lack of proof of the statement. S.B. did not recall what she told S.H. and did not unequivocally agree with what S.H. told the police S.B. said. There is also an absence of evidence as to the content of the statement. Moreover, to the extent that there are details, they give rise to more of an inconsistency than a consistency between the prior statement and S.B.’s testimony at trial. “Almost fingered her but didn’t” is very different from pulling down her pants and touching her vagina for 20 minutes.

64This is not to suggest that a complainant must recount a sexual assault in exactly the same manner each time she discloses it. A complainant may very well disclose incrementally or recall different details at different times. My findings are limited to the question of whether S.B.’s disclosure to S.H. and M were prior consistent statements that could rebut an allegation of fabrication. In this case, the prior statements are insufficiently detailed to find they are consistent and cannot serve that purpose.

65On cross-examination, it was put to S.B. that when she told S.H. that Mr. Pringle almost fingered her, she was referring to the fact that Mr. Pringle performed micro-conditioning close to her vagina and that it looked like fingering. S.B. testified that when she spoke to S.H., she thought of fingering as going in her vagina, which did not happen. However, S.B. had admitted previously in her testimony while observing a video of micro-conditioning that it could look like fingering. It is also concerning that S.B. initially testified that she did not recall what she told S.H. but then sought to explain what she meant.

66Based on the foregoing, I cannot find that S.B. told the same story to either M or S.H. prior to the crystallization of the motive to fabricate. Based on my finding, I need not decide whether the failure to call S.H. as a witness gives rise to an adverse inference.

67Accordingly, I find that the prior disclosures of the alleged sexual assaults to M and S.H. do not rebut the allegation that S.B. had a motive to fabricate.

Inconsistencies

68One of the most valuable ways of assessing credibility is to examine the consistency between what the witness said in the witness box and what they said on other occasions. “Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned”: R. v. M.(A.), 2014 ONCA 769, at paras. 12-13.

69A key inconsistency in S.B.’s evidence relates to when the alleged assaults began. The records show that S.B. first attended physiotherapy sessions with Mr. Pringle to treat her knee a total of three times on February 22, March 4 and March 17, 2021. She was then discharged but resumed physiotherapy in November 2021 to address a hip injury. She saw Mr. Pringle for physiotherapy a total of six times between November 2021 and March 2022. At this trial, S.B. testified that the abuse began “after the first couple of sessions”.

70On cross-examination, S.B. was challenged on her statements to the police. In her first statement to the police on December 10, 2022, S.B. stated that nothing happened for the first month or two. In her second statement on December 13, 2022, S.B. stated that nothing really happened for the first couple of sessions. When the officer suggested to her that Mr. Pringle started touching her in April to May, she agreed. However, S.B. did not attend physiotherapy in April or May 2021. Similarly, in her letter to her parents, S.B. stated that everything was great at the beginning but that after a month or two, Mr. Pringle started touching her.

71At the previous trial, S.B. testified that Mr. Pringle first sexually assaulted her during the second session. On cross-examination, S.B. was adamant that Mr. Pringle started touching her during the second session and disagreed with her statements to the police that nothing happened for the first couple of sessions. S.B. disputed that nothing happened during the first few sessions. She also disagreed that she was remembering the timeline inaccurately.

72At this trial, S.B. admitted on cross-examination that because the second session was two weeks after the first session, her statement to the police that nothing happened for the first month or two was inconsistent with her testimony at the previous trial. When S.B. was challenged on her testimony from the previous trial, she admitted that her answers about when the touching started were different from her evidence at this trial. She admitted that she is now saying that the abuse started after the first couple of sessions when she previously disagreed that it started during the first couple of sessions. She testified that she does not recall when it started, but that it was toward the beginning of the sessions.

73It was suggested to S.B. on cross-examination that if Mr. Pringle abused her during the second session, it would be memorable to her because it was only two weeks after the first session, it was the first time she was alone with Mr. Pringle, who was a stranger to her, and he exposed and touched her vagina. S.B. responded that she could not recall when it started. It was also suggested to S.B. that if Mr. Pringle had abused her during the first set of sessions in February to March 2021, she would have been relieved that he discharged her on March 17, 2021. S.B. admitted that she never described feeling relieved that she did not have to go back to see Mr. Pringle. S.B. also admitted that she did not have a memory of how she felt about having to return to physiotherapy with him, after he had abused her, in November 2021. S.B. disagreed that those would be memorable reactions and explained that her memory is affected by trauma.

74As a child witness who was 12-13 years old when the allegations arose, S.B. is not expected to have a perfect memory of when the alleged abuse began, especially in relation to a traumatic event. However, because of the distinct break of eight months between March and November 2021 when S.B. did not attend physiotherapy, the allegation that Mr. Pringle started to touch her during the second session is very different from the allegation that he started to touch her after the first couple of sessions. If Mr. Pringle did not touch S.B. for the first couple of sessions, or for the first month or two, he did not abuse her at all during the first set of sessions. There would have been no sexual abuse before S.B. started to get into trouble and have struggles with her mental health. Moreover, the allegation that Mr. Pringle abused her during the second session differs considerably because Mr. Pringle and S.B. were virtually strangers to one another. It would have been a sexual assault of a more risky and brazen nature.

75Moreover, the issue is not S.B.’s lack of memory as to precisely when the alleged touching started. The difficulty I have is that S.B.’s evidence has changed, despite having previously expressed a certainty about the timeline, while affirmed to tell the truth. S.B. previously testified that she was certain that the abuse began during the second session and disputed her earlier statements to the police that it began after a month or two. She now states that it started “after the first couple of sessions”. S.B. denied that she has changed her testimony since the previous trial because, after extensive cross-examination at the previous trial, she realized that she had made a mistake. The reality is that her testimony has changed twice now, between the police statement and the previous trial and between the previous trial and this trial. Because she expressed such certainty about the timeline at the previous trial, and that certainty was misplaced, I have significant concerns about the reliability of her testimony generally.

76S.B.’s evidence also gives rise to questions about when and how often the alleged sexual assaults actually occurred. In chief, S.B. testified that Mr. Pringle touched her vagina during “most of” the sessions and that she recalled it happening “multiple times” but that it did not occur when V.B. was there. S.B. testified that after the first session, her mother generally dropped her off and picked her up in the parking lot or she would walk home herself. S.B. testified that V.B. attended once or twice after the first session. She testified that her mother sometimes waited in the waiting room, a detail she had never previously provided, including to the police and at the previous trial.

77On cross-examination, S.B. was challenged with the statement in her letter that she asked V.B. to sit in toward the end because Mr. Pringle would not try to touch her if V.B. was there. S.B. had also told police that she asked her mom to sit in a couple of times in “the middle” when it was still happening. In her statements to the police, S.B. had stated that Mr. Pringle “didn’t really do anything” during the last couple of sessions and that the last incident was a month or two before she stopped seeing Mr. Pringle

78The evidence shows that V.B. was present during the sessions on February 22, 2021 and November 22, 2021 when she made video recordings. An email message from Mr. Pringle to V.B. after the March 4, 2021 appointment indicates that both V.B. and S.B. were there. S.B. testified that she could not recall. It was also put to S.B. on cross-examination that because she was discharged on March 17, 2021, Mr. Pringle would have spoken to V.B. about the discharge. S.B. could not recall if V.B. was there. Based on the absence of an email regarding S.B.’s discharge, I infer that V.B. was present on that date.

79S.B. further accepted that because she told the police that the last incident was in December or January that would mean that there was no touching during the sessions on February 2, 2022 and March 24, 2022. The appointments can therefore be summarized as follows:

Appointment Date

Occurrence

February 22, 2021

V.B. was present

March 4, 2021

V.B. was present

March 17, 2021

V.B. likely present for discharge

November 22, 2021

V.B. was present

December 1, 2021

V.B. possibly present; V.B. sent email to Mr. Pringle on November 28, indicating she would speak to him at next session

December 15, 2021

V.B. not present, Mr. Pringle provides email update after

January 11, 2022

V.B. possibly present; no email from V.B. asking Mr. Pringle for update

February 2, 2022

S.B. admits no touching occurred; V.B. likely present (email to Mr. Pringle on January 31 indicating she would speak to him at the next session; V.B. booked next session five minutes after end of session)

March 24, 2022

S.B. admits no touching occurred; V.B. not present (sent Mr. Pringle email asking for update)

80At the previous trial, S.B. testified that the touching happened during every session when V.B. was not there. She did not testify that the touching sometimes did not happen, or that it stopped some time before the end of her sessions, as she testified at this trial. When challenged on this evidence, S.B. responded that she did not recall what happened at every session.

81In the letter to her parents, S.B. stated that the touching stopped toward the end but she did not know why. When it was put to S.B. that if V.B. was sitting in at the end, she would not have wondered why Mr. Pringle stopped abusing her, S.B. responded that she did not agree or disagree.

82S.B. was cross-examined about her first statement to the police that she wore tighter shorts to prevent Mr. Pringle from touching her and that sometimes it worked. In her subsequent statement to police, S.B. said she started wearing tighter shorts but that this did not do anything. S.B. explained that tighter shorts made it harder for Mr. Pringle to roll down her shorts. In her evidence in chief and at the previous trial, S.B. did not mention that she wore tighter shorts to try to avoid the touching. S.B. denied that she never mentioned the detail about tighter shorts in her testimony in chief because she had made it up.

83The table shows that V.B. was present for most of the sessions. At most, V.B. was not present for three sessions during which the touching is alleged to have occurred: December 1 and 15, 2021 and January 11, 2022. This undermines S.B.’s testimony that the touching began after the first couple of sessions. It is also just barely a sufficient number of sessions for S.B. to have employed the various strategies she testified to, such as wearing tighter shorts and asking V.B. to sit in, to avoid the abuse which would have had to happen over the course of a number of sessions. It is also appreciably different from the picture that S.B. painted in chief, which was that she saw Mr. Pringle for physiotherapy over an extended period of time, that her mother dropped her off and picked her up in the parking lot, that after the first couple of sessions, Mr. Pringle began to touch her vagina and that this happened every time her mother was not there, which was multiple times. The picture that emerges after cross-examination is much less clear.

84S.B.’s testimony at trial about Mr. Pringle rolling her shorts and underwear down to her mid-thigh area every time was inconsistent with her statement to the police. In her statement, S.B. said that her shorts were not fully pulled down every time, but that sometimes they were and that her vagina was not always fully exposed. On cross-examination, she disagreed that what she told police was different from her testimony at trial. However, the difference is evident.

85At this trial, S.B. testified that her legs were straight on the treatment bed while Mr. Pringle touched her vagina with one hand and massaged her hip with the other hand. In her statement to police, S.B. had told the officer that Mr. Pringle used his other hand to move her hip and knee. S.B. admitted that it would feel very different to have an adult man moving her hip and leg around while her shorts were rolled down, as opposed to having both legs together on the bed. S.B. explained that Mr. Pringle did not move her leg around while her shorts were down. She admitted, however, that she never described her leg being moved around and then her shorts being rolled down subsequently.

86There are inconsistencies in S.B.’s accounts that relate to the touching itself. Contrary to her testimony in chief, S.B. told police that Mr. Pringle “touched me here but never fully did anything”. When it was put to her that what she told police was qualitatively different from what she testified to, S.B. explained that she meant that he did not put his fingers inside her. Similarly, in her letter, S.B. told her parents that “he never went further than touching me a little down there” and that it was happening “in the same area as hip” and she initially thought it was part of him fixing her hip but later started to feel uncomfortable. When it was put to her in cross-examination that even at 12 years old, she knew that touching on the vagina was different from touching on the hip, she stated that she only came to that realization later. I cannot accept this explanation. In my view, the touching that S.B. testified to at trial differs so significantly in nature and seriousness from what she described to the police and to her parents that it calls into question the veracity of her evidence. Touching a child patient’s clitoris on multiple occasions for 20 minutes while her vagina is fully exposed on a treatment bed is sexual assault of a prolonged, cruel and shocking nature. It is unlikely to be described as “never fully did anything” or “touching me a little” even by a 14-year-old child.

87This is not a case of incremental or progressive disclosure, where a complainant, especially a child, adds significant details about the sexual assault over the course of the proceeding. See R. v. D.A., 2025 ONSC 6141, at paras. 150-151. Unlike the complainant in D.A., S.B.’s account has not become more detailed over time, it has simply changed. Accordingly, I find that the inconsistencies between S.B.’s testimony at trial and her statement to the police are not about peripheral details but pertain to the core allegations forming the basis of the offence of sexual assault.

88The inconsistencies are not the sole basis for my concerns about the credibility and reliability of S.B.’s testimony. When she testified in chief, S.B.’s account of the incident with E was less than forthcoming. She stated only that she had “confronted” E for touching X around the waist, resulting in her suspension from school. In reality, she was found to have bullied and threatened E with bodily harm. She admitted that despite having reviewed the transcript of her testimony from the previous trial, she did not remember until it was specifically put to her on cross-examination that she had bullied and threatened E.

89S.B.’s explanation about why she confronted E, that she wanted to protect X from physical harassment by E, also tended to portray herself in a positive light. It is an explanation that would tend to elicit sympathy from others. Moreover, S.B.’s explanation implied that it was an isolated incident, when in fact she had been having conflict with E over a period of time and had told her mother just the day before the incident that she wanted to “slap” E. It was also not isolated in that S.B. had been disobeying her parents’ rules and getting into trouble at school since some time in Grade 7. S.B.’s account of the incident with E is relevant because the incident is what led to the subsequent disclosure of the alleged abuse to her parents.

90In addition, S.B. was evasive at times. She answered in response to numerous questions on cross-examination that she did “not agree or disagree” as a means of avoiding admitting something that she did not want to admit or to avoid the question entirely. For example, when it was suggested that she appeared comfortable on the video taken by her mother on November 22, 2021 where Mr. Pringle demonstrates exercises to her, S.B. responded that she did not agree or disagree. She also refused to agree or disagree as to whether it would be memorable that she had to return physiotherapy sessions with someone who had abused her. S.B. also answered in response to a number of questions that she did not recall. That included things that were significant enough that she would be expected to have some recollection, such as any detail about the incident with E, and how she felt about being suspended.

91When S.B. was challenged about her recollection, she explained that her memory was not good because of the trauma. It is not controversial that trauma can affect how a person recalls details about an event, especially one that took place during childhood. At certain points, however, the explanation became a tactic to avoid being challenged on an inconsistency in her previous testimony or statements.

92On the defence’s pretrial application, Molloy J. ordered the production of portions of records that bore directly on S.B.’s denials to mental health professionals that she was sexually abused on the basis that the denials would be relevant to her credibility: R. v. Pringle #3, 2024 ONSC 3335, at para. 41. I agree that outright denials are not the same as delayed disclosure or a failure to disclose and are relevant to S.B.’s credibility. However, in assessing S.B.’s credibility, I place minimal weight on the denials, about which I have very little detail. S.B. testified that the sessions with Mr. Pringle and the treatment by mental health professionals were going on at the same time and she was still trying to wrap her head around it. She was scared and found it a very difficult thing to talk about. At her age and given what she was going through, the impact of her fear is difficult to assess.

93In my view, although S.B. testified that she did not recall feeling uncomfortable about the micro-conditioning near the vagina, it is highly likely that it made her uncomfortable. Mr. Pringle testified that he performed micro-conditioning in the area of the iliohypogastric nerve and the iliac crest, as well as the adductor in the inner thigh, areas that are inches away from the genital area. He rolled down her shorts from the waist to have access to the area. He also rolled down her shorts to perform acupuncture. Although S.B. testified that Mr. Pringle only massaged her hip, when shown the video of a physiotherapist performing micro-conditioning on a patient in the femoral triangle, S.B. admitted that Mr. Pringle performed micro-conditioning in a similar manner on a similar location and that Mr. Pringle’s fingers would get closer and closer to her vagina as he moved down her leg, just like the physiotherapist in the video. The motion of micro-conditioning on the video, although faster than S.B. described, is otherwise similar to the motion that S.B. described. It involves repeated motions with the fingertips or finger pads up and down or in a circular motion. It involves a lighter touch than traditional massage. The nature of the touching and motion was such that it could be perceived as a stimulating or sexual motion. As a 12- or 13-year-old girl alone in a treatment room with an adult male, even though he was a health care practitioner, touching her in such a manner, in that area, it is likely that S.B. felt a degree of discomfort.

94The touching that S.B. described in her letter to her parents and to the police is more similar to the evidence of the micro-conditioning treatment that she received than the allegation to which she testified at trial. I need not find that this is what happened. However, S.B.’s testimony differs sufficiently from her previous statements that, in the context of the evidence as a whole, it leaves me with a reasonable doubt as to what did happen.

95My findings are not intended to impugn S.B.’s character. Testifying in a sexual assault trial is a grueling, intrusive process that requires fortitude. At the same time, making allegations of sexual assault against someone is serious; it puts their very liberty at stake. That is why the standard of proof beyond a reasonable doubt applies. A witness must make the utmost effort to recall events to the best of their ability and to tell the truth. If a witness fails to do so, by being evasive, or by being careless or inconsistent about essential details, concerns arise about their diligence in fulfilling their affirmation to give complete and truthful evidence to this court.

96To be clear, I am not finding that S.B. fabricated the allegation that Mr. Pringle touched her vagina but that the strong motive to fabricate raises significant concerns about the credibility of her evidence. The material inconsistences undermine the reliability of her testimony. It would be unsafe to convict solely based on her evidence. Because S.B. was the only Crown witness, there is a lack of evidence to confirm material aspects of S.B.’s testimony such that I could have confidence in the truth of her evidence as a whole.

97Accordingly, there is insufficient credible and reliable evidence to find that the Crown has proven the charge of sexual assault against Mr. Pringle beyond a reasonable doubt.

Credibility and reliability of Mr. Pringle

98Based on my findings with respect to the Crown’s case, it is not necessary to go into Mr. Pringle’s evidence at length or to conduct a complete W.D. analysis. Mr. Pringle denied the allegations and provided details about the treatment performed on S.B., which were corroborated by extensive contemporaneous notes, as well as the improvement in S.B.’s injuries. He frequently testified to his general practice, rather than his actual interactions with S.B., which is perhaps not surprising, given that he has treated over 1,000 patients. Some of his evidence, such as the frequency with which other practitioners or employees would come into his treatment room, is not particularly credible. In any event, he had no recollection as to whether this happened while he was treating S.B. Given my conclusion with respect to the Crown’s case and that there is no burden on Mr. Pringle to prove anything, I need not resolve these matters.

99Finally, although admittedly unrelated to the charge I must decide, I feel I must nonetheless express an unsolicited, common-sense concern about Mr. Pringle’s lack of communication about the specific areas that would be treated, particularly when those areas were inches away from the vagina, as admitted at trial, in relation to an adolescent girl, in the absence of a parent.

Conclusion

100The criminal standard of proof beyond a reasonable doubt is a heavy burden. It is not enough to find that the defendant probably or likely committed the offence. Having considered the evidence of both Mr. Pringle and S.B., in the context of the evidence as a whole, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Pringle sexually assaulted S.B.

101Accordingly, Mr. Pringle is found not guilty of sexual assault.

Nishikawa J.

Released: March 10, 2026

CITATION: R. v. Pringle, 2026 ONSC 1400

COURT FILE NO.: CR-23-40000488

DATE: 20260310

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

Respondent

– and –

Daniel Pringle

Defendant

REASONS FOR JUDGMENT

Nishikawa J.

Released: March 10, 2026

Footnotes

S.H.’s statement to the police is hearsay and not admitted for the truth of their contents.

Footnotes

S.H.’s statement to the police is hearsay and not admitted for the truth of their contents.