CITATION: R. v. M.B., 2026 ONSC 1976

COURT FILE NO.: CR-24-11403737

DATE: 2026/03/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

M.B.

Accused

F. Dulude and V. Giroux, for the Crown

M. McCann, for the Accused

HEARD: January 5, 6, 7, 8, 9, 12, and 13, 2026

Reasons for Judgment

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code.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

Rees J.

Overview

1The accused, M.B., is charged with one count of sexual assault. The Crown alleges that between January 1, 2015 and April 29, 2024 in the provinces of Ontario and Quebec, M.B. sexually assaulted his daughter A.M., contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46.

2In essence, the Crown alleges that M.B. regularly sexually assaulted A.M. when she was between the ages of about four or six and 14.

3The Crown called a single witness, A.M. She was twice interviewed by police. Her police interviews were admitted at trial under s. 715.1 of the Criminal Code. She identified several instances of sexual assault but asserts that these were part of repeated and ongoing sexual abuse committed by her father.

4M.B. testified at trial and the defence also called his common law spouse, S.L. M.B. denies sexually abusing A.M.

General framework: burden and assessment of evidence

Burden of proof

5The Crown bears the burden of proving each element of the offence charged beyond a reasonable doubt. This burden never shifts to the accused.

6A reasonable doubt is not based on sympathy or prejudice; it is based on reason and common sense. It is logically derived from the evidence or absence of evidence: see R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 39. The Crown is not required to prove a criminal charge to an absolute certainty, but the court must be satisfied, based on all the evidence, of the guilt of the accused beyond a reasonable doubt. While I do not have to be absolutely certain of the accused’s guilt, the standard of reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.

7In considering the totality of the evidence, I have applied R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. This case turns primarily on the credibility of the complainant and the accused. As such, W.(D.) requires the following:

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

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

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

8The principles in W.(D.) apply whenever the court is presented with evidence inconsistent with guilt, whether adduced by the Crown or by the defence (through cross-examination of the Crown’s witnesses or through a defence witness): R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 105.

9At the first step of the W.(D.) analysis, an accused’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 accused’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.

10If, 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.

Assessment of credibility and reliability

11Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to their mental development, understanding and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

12The term “credibility” has to do with a witness’s veracity, honesty, or truthfulness. The term “reliability” has to do with a witness’s ability to accurately observe, recall, and recount the events at issue: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. I must consider both dimensions of a witness’s evidence. A witness whose evidence on an issue is not credible cannot give reliable evidence on that point. By contrast, a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 526. After assessing credibility and reliability, I may believe all, some, or none of a witness’s evidence: R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at p. 837.

Assessment of evidence of a child witness

13There are no inflexible rules mandating when a witness’ evidence should be evaluated according to “adult” or “child” standards: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 10.

14Courts have recognized that children should not be held to the same exacting standard of an adult witness: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55. A child witness should be assessed using criteria appropriate to the child’s mental development, understanding, and ability to communicate: R. v. W.(R), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134. There is no fixed formulaic approach to the assessment of a child’s evidence – the trier of fact should assess both the strengths and weaknesses using common sense. Negative stereotypes should not be applied to the evidence of children: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 225.

15A.M. was four to 14 during the alleged offence; she was 14 when she gave her police interviews; and she was 16 when she testified at trial.

16I must therefore assess A.M.’s evidence as a child witness whose mental development, understanding, and ability to communicate was evolving from childhood into adolescence over the period of the alleged offence and when she her gave evidence.

Sexual assault

17The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 25; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25. Touching is proven objectively, and “[i]t is sufficient for the Crown to prove that the accused’s actions were voluntary”: Ewanchuk, at para. 25. Voluntariness means that “the conduct in question must be willed”: R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, at p. 74.

18The sexual nature of the contact is also determined objectively. The Crown does not need to prove that the accused had any mens rea with respect to the sexual nature of his behaviour: Ewanchuk, at para. 25. The Supreme Court of Canada stated the following in R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302:

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 … will be relevant. [The accused’s] intent or purpose …, 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. [Citations omitted.]

19The absence of consent is determined subjectively, by reference to the complainant’s internal state of mind toward the touching at the time it occurred: Ewanchuk, at para. 26; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89. Here, consent is not at issue. Under no circumstances can a child consent to sexual touching by an adult: s. 150.1, Criminal Code.

20The mens rea of sexual assault has two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent on the part of the person touched: Ewanchuk, at para. 42; Barton, at para. 87. Sexual assault is a crime of general intent. The Crown need only prove that the accused intended to touch the complainant to satisfy the basic mens rea requirement of intention to touch: Ewanchuk, at para. 41.

21A single charge of sexual assault can refer to numerous acts which are all part of the same transaction: R. v. S.(H.S.), 2009 ONCA 102, 242 C.C.C. (3d) 262, at para. 19; R. v. L.F.P., 2017 ONCA 132, at para. 3. Given how the matter was presented, the alleged incidents may be approached as an ongoing, repeated touching. Given the recurring nature of the acts, I am not required to find a specific act occurred at a certain time in a certain way: R. v. G.H., 2023 ONCA 89, at paras. 39, 41.

Analysis

Crown’s evidence

A.M.’s evidence

22A.M. testified that her father routinely sexually assaulted her over a period of about a decade. Although she testified to several specific incidents that she could recall, she described the sexually assault as repeated. She told police that the sexual abuse started happening when she was four or six. The abuse started when she was a young child and continued until few months before she made the disclosure to police, when she was 14.

23She told police that the abuse did not just happen once a month or once a year. It happened every single weekend until she was 14, though she corrected herself and stated that on some weekends the sexual abuse did not occur. But when she as a child the sexual abuse happened a lot.

24Before her police interviews, A.M. wrote electronic notes on her phone’s Notes App about various alleged incidents of sexual assault. The electronic notes are dated January 31, 2024. She disclosed these notes to the police. I will return to these notes below.

(a) Innes Road: Tinkerbell nightgown

25A.M. testified to two incidents in her father’s house on Innes Road in Ottawa.

26A.M.’s first memory of sexual abuse was in her father and stepmother’s house on Innes Road. A.M. believes she was between the ages of four to six. She thought it was the summer before she went into grade one.

27A.M. recalls S.L. changed her for bed. She recalls wearing a purple, blueish Tinkerbell nightgown, which she says S.L. bought her. She had on underwear on but no pajama bottoms. S.L. went out around 7 or 8 p.m. for bingo with friends. A.M. was in a single bed in her room. It had a silk canopy running down from the ceiling. She had two blankets and recalls possibly an Elsa blanket.

28M.B. came up to her room. He seemed drunk. A.M. stated that he walked up the stairs, stumbled a bit, and leaned up against the doorframe. A.M. could not recall what he smelled like, but she could recall the smell outside. She described it as smelling like grass.

29He lay down beside her on the bed. He was pressed up against her because it was a small bed. M.B. moved his hand under her nightgown, pulled her underwear to the side, and started rubbing her vagina.

30M.B. then positioned her in a 69 position while on the bed. He was lying on the bottom. She was lying on top of him. He took out his penis and encouraged her to lick his penis. He sucked on her vagina.

31M.B. then got up and picked her up, holding her upside down, with her head pointing towards the floor and her legs pointing toward the ceiling. He started licking her vagina.

32A.M. did not remember anything after that. The next memory she has is going to her mother’s home.

33On cross-examination, A.M. admitted that in the electronic notes she prepared did not mention that her father held her upside down. A.M. agreed on cross-examination that he held her upside down for probably more than a minute but she could not recall how long it lasted. She agreed that being held upside down stood out. She agreed that it was the only incident in which he held her upside down.

(b) Innes road: fish nightlight

34The second incident that A.M. recalled on Innes Road was when she and her brother B.B. switched rooms. She was on a big bed and she had a nightlight that had fish swimming around it, which would play a song.

35A.M. recalled the scent of her father’s cologne. She recalls M.B. kissing her lips and shoving his tongue in her mouth. She also described her father kissing her neck, then shoving his tongue in her mouth and swirling his tongue in her mouth. She remembers feeling the bumps on his tongue. It made her feel uncomfortable and she gagged. She recalls M.B. touching her vagina. She does not recall much else from this incident.

(c) Orient Park

36Her father later moved to a house on Orient Park Drive in Ottawa. A.M. testified to several incidents at the Orient Park home.

37For a time, she would sleep in her sister’s room when visiting her father.

38A.M. told police that her father would constantly say that he was going to tuck her and her sister A.B. in. A.M. would tell him that she did not want him to, but her sister would want him to tuck them in. A.M. repeated to police that her father would constantly say—that is, every night—that he would tuck her and her sister in.

39A.M. resiled from this on cross-examination. She said it was not constant and it was mainly her sister who wanted her father to tuck her in and he would sometimes say he would do so. But then her evidence shifted when confronted with her prior statement to police and she ultimately agreed on cross-examination that every night or almost every night when A.M. and A.B. were sharing a room her father would tuck them in, but it was mainly A.B. asking to be tucked in and occasionally A.M. would also ask to be tucked in if she was feeling lonely. She also clarified that this occurred not every time they were sharing a room but almost every time they shared a room.

40A.M. told police that when she was about nine or ten years old, her father came into the bedroom she was sharing with her sister. He tucked A.B. in and then A.B. fell asleep. He then stood at the end of her mattress and pulled A.M.’s pants down very quickly. He placed her legs high, not behind her head but towards behind her head. She could not move. He started unzipping himself and started to take his penis out. A.M. testified that she was squirming and moving. Her father only let go after A.M. kicked her father hard in the face. He then stood up, zipped up his pants, and left the room.

41A.M. related a second incident in her sister’s room at Orient Park. She described how she, her sister and father were in her sister’s bed. Her sister was sleeping beside her. She testified that her father was watching pornography on his phone, then asked her to jerk him off and to suck his penis. She started to kiss his penis instead. She testified that her father ejaculated right next to her.

42When she 11 or 12, her father and stepmother set up a room for A.M. in the basement of their home. A.M. testified to two incidents in the basement.

43A.M. testified that she heard her father coming downstairs to the basement. She tried to record the incident on her phone, which she placed under her pillow. She testified that her father saw that her hand was behind the pillow and got suspicious. He found the phone, deleted the video and threw her phone backwards. He then pulled down her pants to her ankles and started licking her vagina.

44On another occasion, on M.B.’s birthday in 2024, A.M. testified that her father came home after a birthday party with his friends. A.M. testified that he came down to the basement. He was very drunk, and was stumbling and slurring his words. He tried to fall asleep in her bed. She says he asked to be her boyfriend and asked her why she did not want to sleep with him. He moved his hand up her waist to her chest. A.M. testified that she went upstairs, texted her friend asking what she should do. After a couple of minutes, A.M. went back down to the basement and grabbed her father, helped him up and he walked back upstairs.

(d) Incident in Toronto

45A.M. told police that, during a visit in Toronto in June 2022, when her newborn brother was in hospital, she stayed at a hotel with her other brother, her sister, her stepmother, and her dad.

46She told police that there were two beds in the hotel room. Her siblings fell asleep in one bed with her stepmother. She told police that she was in the other bed with her father. She stated that her father started touching her under her shirt, grabbing her chest, lifted up her shirt, and sucked on her chest. He touched her vagina over her underwear. A.M. was menstruating at the time and wearing a pad and underpants. Her father touched her over her underwear and felt her pad.

47She told police that, after the incident, her father went to sleep. She recalled that they went to Ripley’s aquarium the next day because it was her sister’s birthday.

48On cross-examination, A.M. testified that she, her sister, and her father were on one bed. Her brother and stepmother were on the other bed. A.M. was on her phone and the rest of them were watching TV. Her sister then moved to her stepmother’s bed. They turned off the TV and they went to bed.

49On cross-examination, A.M. admitted that she had previously written in her Notes App that her father slipped into bed with her and her sister was sleeping right beside them. This was inconsistent with her evidence at trial that he was already in bed with her and her sister was in bed with S.L. This was also inconsistent with her having previously told the police and Crown during witness preparation that she slept with her father and A.B. in the same bed on the night of sexual assault.

50On cross-examination, A.M. also agreed that her evidence at trial about her positioning was different from her police statement. At trial she testified that she was on her back when her father touched her vagina over her pad, but when he sucked her chest, she was facing him. He had scooted lower to put his face at eye level with her chest. But in her police statement, she testified that she was on her back. She did not tell police that they had changed positions.

51A.M. explained that at the time of her police interview, she only remembered being on her back while he did one sexual act to her—that is, the touching of her vagina—but she also remembers he sucked on her chest. She explained that she vividly remembered their positioning at trial.

52A.M. acknowledged that had her stepmother awoken from sleep, she would have been in a position to see what was happening.

(e) Incident at her paternal grandparents

53A.M. alleges that sometime before her paternal grandfather passed away, she stayed over with her father at her grandparents’ house. She believes that her stepmother and brother went home.

54She and her father shared a Murphy bed in the basement. Although she initially could not recall during her police interview whether her sister was also in the bed, she then told police that her sister was in the bed.

55A.M. told police that she was in the bed in the basement on her phone. She was watching a video. Initially she told police that it was a TikTok video then corrected herself and said it was a Gacha Life video. Gacha is a game in which the user can make animated characters.

56A.M. told police that her sister was asleep next to her. Her father came down the stairs. He got into bed with them. In terms of positioning on the bed, she explained that her sister was on one side, then A.M. in the middle, then her father on the other side of the bed.

57A.M. told police that her father started touching her by sliding his hand under her shirt to grab her chest. He lifted her shirt to suck on her nipples.

58A.M. told police that her father then touched her vagina and that she he tried to put his fingers inside her vagina. It hurt. She said, “uh” or “ow”, in response, and he went to cover her mouth to make sure no one heard. She stated that he did not physically cover her mouth and demonstrated him bringing his hand to her mouth.

59During the same incident, A.M. stated that her father whispered to her to “moan, moan. Like, make noise and stuff.”

60He stopped touching her when she said she had to urinate and went upstairs. When she returned downstairs, her father was on his phone and did not acknowledge her.

61A.M. told police that she went to her stepmother’s the next day, then her mother picked her up or her mother and stepmother met halfway.

62On cross-examination, A.M. stated that she believed that she was 11 or 12 at the time of the incident at her grandmother’s home. Her sister is six years younger – so she would have been five or six at the time.

63A.M. described the bed as larger than a single bed, but she did not know whether it was a queen-sized bed. She agreed it was not a king-sized bed. A.M.’s sister was beside her. Her sister’s head was at the head of the bed. She agreed that her sister was close, really close to her. A.M. agreed that the three of them in the Murphy bed was a tight squeeze.

(f) Incident in blue truck

64During her second police interview, A.M. recounted a specific incident in M.B.’s blue truck. A.M. stated that her father was driving her home. She was seated in the front. It was night. The whole way while driving he rubbed her thigh with his right hand. He then pulled over at a park near her house. He then pulled her pants down and he licked her vagina. She could not recall what position she was in but assumed she was lying down. She could not recall the clothing she was wearing. She could not recall how this incident ended nor her father dropping her off at home afterwards. She believes that it was summer because there were no leaves on the ground and no snow. The leaves were in the trees. A.M. stated that similar incidents happened multiple times but she could not recall exact details.

(g) Bruising on legs

65Although it was not one of the incidents identified by the Crown in closing submissions (in its aide memoire/chart) as an alleged sexual assault, A.M. told police about and testified to a further specific occasion in which she says she was sexually assaulted by her father.

66During her April 29, 2024 police interview, A.M. told the investigating officer that there was a specific incident on January 29, 2024. She told police that all she could remember is her father grabbing her legs really hard. The next morning she woke up with bruises on her legs. She took photos of the bruises and sent them to a friend. She believes that this event happened on January 29 because she created a note on her Notes App dated January 31, 2024 and the note referenced January 29 as the most recent incident.

67At A.M.’s May 8, 2024 follow-up interview with police, she provided additional information regarding the pictures that she provided to police. The pictures themselves were undated. The photos consisted of three pictures of bruising on her legs. She stated that she could not recall the full details of how she sustained the injury, but she recalled her father’s hands gripping her legs tightly. She stated that she knows that it was a sexual incident in her room at his home. She could not recall what happened or what day it was or what she was wearing. She could recall it was in 2024.

68At trial, she testified that this incident occurred in her room in the basement of her father’s home. She could not specifically recall the time of day, but she thinks it was nighttime because her LED lights were on and her room was dark blue. A.M. testified that she was lying on her back. Her father was on the edge of the bed. He was gripping her legs, around her knees—a bit underneath and overtop her knees. A.M. could not recall if her father said anything to her. She testified that she sent the photos to her friend so that he could see what she was referring to when explaining how she found bruises on her legs.

69On cross-examination, A.M. ultimately acknowledged that she had no memory of the specific date of this event, but was relying on the accuracy of her Notes App. She testified that she recalled her father holding her legs because she remembered him in between her legs holding her legs.

70A.M. testified that she recalled these additional details at trial. She also testified that between the first time she was interviewed by police and the second time, three months later, she was able to provide more details because seeing the photos again triggered some additional memories.

71By this time, A.M. acknowledged that she was not usually staying over on a Sunday night unless Monday was a holiday. She also acknowledged that she was not usually at her father’s home on a Monday night. When confronted with a calendar showing that January 29, 2024 fell on a Monday, A.M. testified that she could have stayed at her father’s that Monday, though she agreed it was not normal. She testified that there were times she would stay at her father’s on a Monday.

72A.M. denied having an exam on January 29.

73A.M. explained that she may simply have got the date mixed up on the Notes App and that the assault happened on the 28th.

74On re-examination, the Crown tendered evidence of an email dated January 26, 2024 that A.M. received from her school, which she disclosed to the Crown during her cross-examination. A.M. testified that the email stated that her school was cancelled on Monday, September 29, 2024 due to inclement weather. She testified that she did not attend school on the Monday.

75I pause here to note that this is not what the email says. The email says – and the Crown accepted this in closing submissions – that there was inclement weather on Friday, January 26 that had affected the exam and final interview schedule, and that the in-person aspect of the interview was therefore cancelled for grade 9 immersion classes.

76A.M. explained that she did not recall what exactly happened on the Monday but that her father took her and her siblings to a hockey game on the Saturday and it was her brother’s baptism on the Sunday. Her mother dropped her off at the TD Bank Centre, where she met her father, brother and sister. She slept at her father’s on the Saturday night.

77The Crown also adduced text messages between A.M. and S.L. in which S.L. sent A.M. text messages on January 29 of photos from her brother’s baptism, and a text exchange from January 30, in which S.L. asked A.M. how her exam went. A.M. replied that it was hard.

Defence evidence

M.B’s evidence

78M.B. testified at trial. He denies A.M.’s allegations. He denies that he ever touched A.M. sexually. He denies that he ever made sexual comments about A.M.

(a) Background and schedule

79M.B. was 41 when he testified at trial. He has a grade 12 education. He worked 14 years at a furniture retailer and more recently at a supplier of workplace clothing and linens. He has also worked in moving, snow removal, landscaping, and construction. He held some of these jobs during the same period and worked long hours. He worked six days a week, taking Sundays off. In his off hours, he played hockey for more than one team a week for 20 years. He would play hockey during the week and on Sundays, as well as on some Saturdays.

(b) Drinking habits

80He testified that he drank beer occasionally. If he were drinking, he’d usually have one beer. He admitted that there were occasions when he would have a beer after playing hockey. Although M.B. initially categorically denied having attended Alcoholics Anonymous meetings, he admitted on cross-examination that he previously told police that he had attended an A.A. course as a condition of being able to see A.M. as a child, when he first sought family access to her. Since that course, he has not attended any A.A. meetings. He initially admitted on cross-examination that he had lied when he categorically denied attending A.A. meetings, he later qualified that as a mistake. He denied being an alcoholic.

(c) A.M. visits and bedtime routine

81M.B. was not initially involved in A.M.’s life. He became involved in her life when she was between two and a half and three years old. Initially he would meet A.M. at a museum or mall, and he would have two to three hours with her and A.M.’s biological mother. These visits became longer when his common law partner, S.L., came into his life. When A.M. was five, the visits progressed to overnight visits when M.B. and S.L. were living in Gatineau.

82From Gatineau, M.B. and S.L. moved to their house on Innes Road. M.B. testified that their son B.B. and daughter A.B. had been born when they moved to Innes Road. He estimated that their daughter A.B. was around two years old when they moved to Innes Road.

83At that time, A.M. would stay over every second weekend from Friday until Sunday, when she returned to her biological mother. A.M. would also sleep over an extra day if Friday or a Monday were a PD or holiday. For example, if Monday was a PD day or holiday, A.M. would sometimes sleep over on the Sunday night too. As A.M. got older, she chose when to visit and her visits became less frequent.

84M.B. explained that the normal routine was for S.L. to put the children to bed. S.L. would normally also put A.M. to bed when she was staying over. While he could not remember precisely, M.B. believed bedtime was around 8 p.m. M.B. testified that on the rare cases that S.L. was not at home, he would put the kids to bed. He believed he would put the kids to bed a couple of times a year. On cross-examination, he denied that given the infrequency doing so this would have stuck out in his memory.

85The routine was same when M.B. and S.L. moved to their Orient Park home.

86On the rare occasions that he would put A.B. and A.M. to bed, M.B. could not recall precisely how long he remained in their room. He explained that he did not check the time. Ultimately, he estimated the length of time as under five minutes – possibly two to three minutes. Generally, he would only stay to tell them that he loved them, sweet dreams, God bless, and to recite a prayer. There were occasions where he would stay to read A.B. a book.

87M.B. testified that A.B. and A.M. had TVs in their rooms. It would not necessarily be dark in their rooms at bedtime. There was a hall light and sometimes the TV would be on at bedtime. He would turn off the TV if they fell asleep. He could not recall whether he kept the TV on during the rare occasions when he put A.B. and A.M. to bed, but he assumes so.

88M.B. could not recall A.M. having a fish nightlight. He does not know whether she had one or not. He testified that there was not a fishnet canopy in the bedroom at the time that A.B. and A.M. shared a bedroom. M.B. and S.L. only purchased one for A.B. within the last year or so.

89He also testified that he never put A.M. to bed once her room was moved into the basement. On his account, it was A.M. who asked for personal space and she and S.L. discussed her moving into the basement. A.M. never told him that she did not want to go into the basement.

90A.M. testified that she had at some point slept on a pull-out couch when visiting M.B. and S.L. M.B. denied this. He testified that A.M. never had a pull-out couch and never had a futon-style couch. He could not recall if she ever slept on a bed that was just a mattress on the floor. M.B. bought most of the furniture in his home from the furniture retailer he worked at. When A.M. shared a room with his other daughter, A.B., they had a double bed and a single bed in the bedroom.

91On cross-examination, M.B. disagreed that the bedtime routine was valuable and precious time given how little time he had with A.B. He explained that it was not quality time because he had to work the next day. He contrasted bedtime with taking them to the park or something similar, which he would consider to be quality time with his children.

92M.B. could not recall any of A.M.’s pyjamas. He could not recall what she wore to bed. He could not recall if she had a Tinkerbell outfit but acknowledged that she could have had one. He did not know whether A.M. had pyjama pants with avocados on them.

93M.B. described gendered roles for S.L. and him in terms of child care. He denied that he changed the children into their pyjamas as part of the bedtime routine. He explained that was “for the female”—that is S.L.—to change the girls, not him. He stated that he never changed the girls and that he was raised not to change the girls because he is male. He would not get involved with changing them. He and S.L. agreed that it was the latter’s role.

94M.B. testified that S.L. has few activities or hobbies outside the house. He admitted on cross-examination that S.L. would attend bingo once in a blue moon, but it would be during the week. He denied that S.L. went to bingo on the weekends.

(d) Visits to paternal grandparents

95M.B.’s mother and stepfather lived in Gatineau. A.M. and his family visited his parents less often during the COVID pandemic. He did not remember whether A.M. stayed over at his parents during the pandemic. His stepfather was diagnosed with cancer in around 2021 and died on August 27, 2022. His stepfather’s illness reduced visits further because he was immunocompromised. M.B. could not recall if A.M. stayed over at his parent’s home while his stepfather was ill.

96M.B. testified that he built a Murphy bed for his mother during the summer that his stepfather was sick.

97M.B. denied sleeping over at his parents’ with A.M. at any time between the start of the pandemic until he became aware of these allegations. He could only recall one occasion where he did so, but A.M. was not present. His mother, stepfather, nephew, and niece were at the home. M.B. was renovating his parents’ basement.

(e) Toronto trip

98After M.B.’s son C.B. was born, he received treatment at SickKids in Toronto. In June 2022, M.B., S.L., A.M., A.B. and B.B. drove from Ottawa to Toronto for a visit. They stayed at a hotel sponsored by SickKids. They were there four days and three nights. The hotel room had two double beds, side by side, with space in between them.

99M.B. testified that he and S.L. shared one bed, with their son B.B. sleeping between them or at their feet. He did not sleep with A.M. any of those nights. He is sure of this because he and S.L. were consoling each other because their son C.B. was almost dying. He characterized this as a very difficult time. He explained that S.L. and he barely slept. When pressed on cross-examination, he testified that he could not recall if S.L. slept at all. He did not sleep well. He though he might have managed an hour or two of sleep here and there.

(f) Viewing pornography

100M.B. denied watching anime or hentai (Japanese-style animated pornography). Before these allegations were made, M.B. was not aware of what hentai was. He denied watching any kind of animated pornography. He admitted on cross-examination that he has watched pornography. He denied ever having watched any kind of pornography in front of A.M. or showing her any pornography.

101M.B. denied ever having given A.M. an old black mobile phone. He admitted to both presently and previously owning a Samsung phone. He denied that A.M. ever found pornography on a phone of his.

(g) Bruises on A.M.’s legs

102M.B. denied ever seeing bruises on A.M. He agreed that this would cause him concern as a father and he would have asked her about them. He denied having caused bruising on A.M. when sexually assaulting her.

103M.B. testified that A.M. did not stay over on the Monday, January 29, 2024. He testified that he could recall that the Sunday was his younger son’s baptism. M.B. testified that the family had supper following the baptism, then they drove A.M. home to her mother’s on the Sunday. She did not return on the Monday.

(h) M.B.’s birthday

104M.B. went out with friends to play pool on his January 2024 birthday. He returned home that night. He recalled getting home, going to the bathroom, getting a water bottle, and checking on his children before going to bed. He recalls that A.M. was up and that she was on her cell phone. M.B. asked A.M. how she was doing, how her night was, and who she was talking to. She responded and M.B. told her that she needed to go to bed because it was late. He estimates he spoke with A.M. for less than five minutes.

105M.B. then went upstairs to bed with S.L. S.L. was awake, having heard him coming into their bedroom. They spoke briefly then he went to bed.

106While M.B. recalled drinking that night, he could not recall in his evidence-in-chief how many drinks he had that night. He was not so intoxicated as to have problems with his balance. He had no problems walking or standing. Nor was he slurring his words.

107On cross-examination, he accepted that he had three or more beers that night. He admitted to being “drunk”. He stated that he could move properly and did not drink to the point of falling over or slurring.

(i) Driving A.M. in his blue truck

108There is no dispute that M.B. owned a blue Ford-150 pickup truck, which he purchased in 2017. He acknowledged driving A.M. home and that there were occasions when it would be dark when he did so. He would often meet A.M.’s mother halfway for the exchange. He acknowledged that there would be occasions when A.M. was in the truck alone with him. He denied any sexual touching in the truck.

(j) Relationship with A.M.

109M.B. described A.M. as being very close to S.L. and was very open with her. Like a second mother to her. A.M. was not open with M.B. A.M. would talk to S.L. about her personal issues but not to M.B.

S.L.’s evidence

110S.L.’s evidence was largely consistent with M.B.’s evidence. S.L. is a stay-at-home parent. She did not work outside the house.

111S.L. testified she had a special relationship with A.M. She was her second mother. She considered A.M. to be one of her own children.

(a) A.M. visits, childcare, and bedtime routine

112S.L. testified that between 2014 and 2024 it would not be normal for A.M. to sleep over on any night other than Friday and Saturday every second weekend. The exception would be holidays or PD days. A.M. would not stay over in the middle of a school week when there was no holiday.

113S.L. did not have many of her own hobbies. She would often go watch M.B.’s games with the kids. She would bring the kids to swimming, parks and the like. She played bingo. When her dad was alive, she would go with him to play bingo around five times a year. They would go during the week and rarely on weekends. She believed that she may have gone to play bingo once or twice on a Sunday morning. A.M. would probably have already been dropped off at her mother’s when S.L. went to play. After her father passed away in 2020, she rarely went to bingo. She did once or twice with friends.

114She did not have much time for herself. She was very busy with the children. Apart from bingo, she did not have social activities on her own. She usually brought her children to social events. She had cousins with whom they would do things with each other’s children.

115Between 2014 to 2024, S.L. spent most of the time with the children, including A.M. Generally, S.L. would put the children to bed, including A.M. She could not recall exceptions to that. S.L. testified that it would be “very rare” that M.B. would put the kids bed when she was home. She believed M.B. may have put A.B. and A.M. to bed a couple of times, but S.L. was home. A.B. wanted M.B. to read a book to her.

116S.L. testified that she did not leave on weekends when A.M. was staying with them. She described herself as a “momma bear”. She had no issues with M.B. being alone with the kids. She trusted him with them, including with A.M.

117On cross-examination, S.L. acknowledged that M.B. sometimes put A.B. to bed, including reciting prayers. She estimated that he would spend five minutes or less in their room. When pressed by the Crown that reading and prayers would take more than five minutes, S.L. maintained that M.B. would spend five minutes or less during the bedtime routine. She acknowledged that she would sometimes be on another floor or occupied with their son. S.L. testified that she could not recall instances when M.B. put the kids to bed when she was out; she maintained that when she went out, she usually did so after they were in bed.

118S.L. testified that M.B. did not often ask or say that he wanted to put the girls to bed. She never heard A.M. state that she did not want M.B. to put her to bed.

119All the children have televisions in their rooms, and they usually watch television to fall asleep. She never heard a noise in the girls’ room while M.B. was with them that caused her concern.

120S.L. testified that she changed the girls’ clothes until they were of an age to do it themselves. She would pick out their outfits. She also usually gave them their baths. On cross-examination, S.L. maintained that M.B. did not want to help with the children’s baths. She acknowledged that M.B. would sometimes help bathe their son B.B. but not with the girls. She does not find this strange. She explained that it was her routine. She also testified that M.B. did not like to change the children when they were newborns. He would change B.B. once in a while but never changed A.B. because it “grossed him out”.

(b) M.B. drinking habits

121Between 2014 to 2024, M.B. played hockey very often. He would probably have a drink with his teammates after the game if they won, but not necessarily at a bar. He would not do this often, and not every week. Beyond that he did not often go drinking with friends and he only drank at home occasionally. When he drank, he would only have a couple of beers in a sitting.

122S.L. could not recall M.B. ever coming home drunk, nor stumbling or unsteady on his feet. Nor could she recall him ever having difficulty keeping himself upright or leaning against walls, nor slurring his words after having consumed alcohol.

123At no time S.L. was with M.B. did he have trouble with drinking. He did not drink to excess or have too many drinks. But on cross-examination she agreed that there were occasions during the 15 years of their relationship that M.B. had had more than five beers. S.L. testified that she had seen M.B. consume five beers at some family events but never seven or ten. She maintained that she never saw him “drunk”—that is, slurring his speech or falling over.

(c) A.M. clothing and sleeping arrangements

124S.L. did not recall A.M. having a Tinkerbell nightgown, but she didn’t think so. She does not recall all their outfits. She testified that A.M. was not really into Tinkerbell. Nor does she believe that A.M. had a princess hooded towel. She could recall her son having a shark hooded towel. S.L. was firm that she did not recall A.M. having a princess hooded towel.

125S.L. recalled A.M. having pyjamas decorated with a print of avocadoes. On cross-examination, she recalled A.M. having a lot of two-piece pyjamas. She could not precisely describe them, but she had pants and a top from the movie Frozen. She had pyjamas with colourful hearts. She also recalls A.M. having Grinch pyjamas when she was older.

126S.L. testified that A.M. had a double bed at the Innes Road home. A.M. and A.B. did not share a room in that home. On cross-examination, S.L. testified that A.M. did not have a fish nightlight.

127While A.M. and A.B. shared a room at their Orient Park residence, they did not share a bed. A.M. slept in her own double bed. She did not sleep on anything other than a typical bed with a bedframe. She also testified that A.M. did not have sleeping difficulties.

128S.L. recalled that A.M. moved into her basement room when she was 11 or 12 years old. A.M. wanted her own space because she was getting older. There was never an occasion when A.M. did not want to go down to the basement room. A.M. never told her she was afraid of the basement, but S.L. was aware that she was afraid of the dark. They bought LED lights for her, she always had a television in her room, and the basement had a big window with lots of light. On cross-examination, S.L. confirmed that the LED lights likely stayed on when A.M. slept and would change colours, including to blue. S.L. acknowledged that A.M. could have had blue LED lights on while she slept.

129S.L. testified that M.B. never put A.M. to bed in the basement room, and M.B. never said that he wanted to put A.M. to bed when her room was in the basement.

130According to S.L., A.M. never slept on a mattress on the floor, two mattresses stacked on top on each other, a pull-out couch, or a futon in either of their homes.

(d) Visit to Toronto

131S.L. testified that their son C.B. was born with health issues. After his birth, he was transferred from CHEO to SickKids in Toronto for surgery. In June 2022, S.L., M.B., A.M., B.B. and A.B. drove from Ottawa to Toronto. They stayed at a hotel. The hotel room had two double beds. S.L. did not sleep much on any of the nights during the visit because C.B. was in hospital and she was pumping milk about every four hours. S.L. recalled she was often awake pumping milk. During the nights they were at the hotel, S.L. did not sleep much, perhaps a couple of hours a night.

132On cross-examination, S.L. acknowledged that she slept a few hours each night, but testified that she often waited up for M.B. to return from the hospital, pumped milk, and discussed C.B.’s status with M.B. on his return.

133S.L. testified that the sleeping arrangements were: her, M.B. and their son B.B. at their feet in one bed; and A.M. and A.B. in the other bed. She acknowledged that there were times when A.B. would have cuddles and watch TV at night from S.L.’s bed but then A.B. would go back to the other bed to sleep. She vividly recalls this. She acknowledged that A.B. may have fallen asleep in S.L.’s bed but S.L. put her in the other bed. There were other occasions when A.B. fell asleep in the other bed that she shared with A.M.

134A.M. was in the other bed on her phone a lot. She did not watch TV from the same bed as S.L. and A.B.

135S.L. testified that M.B. did not share a bed with A.M. on any of the nights. She is sure of that because she barely slept. M.B. spent most of the day visiting their son C.B. at the hospital because M.B. would rarely see him. M.B. would return from the hospital late at night. Sometimes, when the children were sleeping, S.L. would go meet M.B.

(e) Pornography and M.B.’s old phone

136S.L. has never known M.B. to watch anime or hentai pornography.

137S.L. testified that she did not think that M.B. had given A.M. an old black phone. She also testified that there was never an occasion on which A.M. told her that while using an old phone of M.B.’s, or anything else, she found pornography on it. S.L. stated that is something she would remember.

(f) Visits to paternal grandparents

138On cross-examination, S.L. related that A.M. had a great relationship with her paternal grandmother. She liked visiting there. Sometimes S.L. would go as well. The family would go. Occasionally she and M.B. slept there, but more often S.L. went there with the kids, particularly when M.B. had hockey tournaments. M.B. would have slept there only a few times. S.L. was with him on those occasions. S.L. and M.B. slept in the same bed. They never slept in the Murphy bed downstairs.

139S.L. could not recall whether A.M. slept over on the same night with the rest of the family. Although she could recall that A.M. had slept over at her grandparents on occasions when S.L. did so, she could not recall an occasion when A.M. slept over on an occasion when M.B. also slept over.

(g) M.B.’s January 2024 birthday

140S.L. recalled M.B.’s birthday from January 2024. M.B. went out with friends to a pool hall. She and the children did not join him. That night, she heard M.B. return. She heard the front door to their house because she sleeps with her bedroom door open. S.L. testified that M.B. went downstairs and then came back up around four or five minutes later.

141S.L. testified that when M.B. returned home that night, he was not drunk to the point that he was slurring his words or having difficulty standing. In her estimation, he was ok. She acknowledged on cross-examination that he was not sober and that he had had a few beers, but she observed no impairment. She described him as acting completely normal. She could smell a little alcohol on his breath.

(h) Baptism weekend

142S.L. testified that their son C.B. was baptised on Sunday, January 28, 2024. Her recollection was that there was a hockey game the day before. M.B. was there with the two children, and A.M.’s mother drove her to the game. A.M. slept over at their home that Saturday night. She did not stay over any other night that weekend.

143C.B.’s baptism was at 2 p.m. at church. After the ceremony, they went to a restaurant. S.L. recalled A.M. telling her that she had an exam she had to study for. They drove A.M. home that Sunday. S.L. recalls sending photos of the baptism to A.M. on the Sunday. S.L. was firm that A.M. was not with them that Monday. After the weekend, S.L. recalls messaging A.M. on the Tuesday to ask her how her exam was on the Monday. On cross-examination, S.L. testified that she had reviewed her messages weeks before trial.

(i) She did not observe any sexual impropriety

144In the time she has known M.B., she has never known M.B. to behave in a sexually inappropriate way towards A.M. Nor has she ever heard M.B. to make any sort of sexual comments about A.M.’s body. She never saw M.B. to touch A.M.’s body in an inappropriate way. She never saw M.B. touch or grab A.M.’s buttocks.

(j) Alleged motive to protect M.B.

145On cross-examination, S.L. testified that she had returned a call from the investigating detective but did not give a police statement. S.L. denied that she declined to give a police statement to protect M.B. She agreed that she loves M.B. and does not wish to see him go to jail. She acknowledged that she depends on him emotionally and, to a certain extent, financially. She denied protecting M.B. in her evidence. Rather, she testified that she was telling the truth.

Findings

146It bears emphasizing that my task is not to determine which of two versions of an event is more believable; it “is to determine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt”: R. v. T.A., 2020 ONCA 783, at para. 28.

Assessment of M.B.’s credibility and reliability

147The Crown argues that M.B. was not credible because his evidence was evasive, incoherent, and he lied under oath. The Crown contends that I should reject his evidence.

148In my view, M.B.’s evidence requires a more nuanced assessment of his credibility. I find his evidence was credible on key points, but there were occasions in which he was not forthright.

149I find his account of the following to be credible: his work and hockey schedule; that S.L. was overwhelmingly responsible for childcare; that he very rarely put A.B. and A.M. to bed; his account of their trip to Toronto to visit C.B. while he was hospitalized; and his account of A.M. never having found pornography on his phone which she brought to his and S.L.’s attention. All of this is coherent, and consistent with S.L.’s evidence, which I accept.

150This is not to say that M.B.’s evidence was entirely unproblematic.

151The Crown says M.B. demonstrates the hallmarks of an evasive witness. I have carefully considered the way M.B. answered questions. I must not place undue weight on his testimonial demeanour, including his manner of answering questions.

152M.B. repeatedly answered questions with questions or sought clarification from the Crown regarding questions. Generally, I find that how he answered questions was a genuine lack of comprehension. M.B. is unsophisticated and has a limited education. He struggled to appreciate the nuance of relatively straightforward language, including when defence counsel was questioning him. For example, he did not understand what defence counsel meant by “in a sitting” in reference to his alcohol consumption habits. I find that this was generally not evasiveness or deliberate obfuscation.

153That said, I find that M.B. was occasionally evasive when answering the Crown’s questions. In these moments, M.B. was not forthright.

154A specific example of his lack of forthrightness is when M.B. denied attending Alcoholics Anonymous. When confronted with his prior statement to police that he attended an Alcoholics Anonymous course as a condition of A.M.’s mother agreeing to him having parenting time with A.M., he acknowledged that he attended the course but testified that he had never attended Alcoholics Anonymous meetings since and was not an alcoholic. When the Crown put to M.B. that his denial was a lie, he agreed that it was but later characterized his initial answer as a mistake.

155His alcohol use is relevant because, on A.M.’s account, M.B. was often intoxicated during the sexual assaults, and on at least two of the specific incidents she recalled he was visibly impaired. M.B. admits to having a beer or beers after hockey games or at home but not drinking to excess. The Crown says that M.B.’s inability to concede that he was impaired when he came home from his birthday in 2024 was self-serving. The Crown says that M.B. knew if he conceded that he was impaired, it opened the door to A.M.’s account.

156I find that M.B. was not forthright about whether he ever attended A.A. meetings. I also find he exaggerated when he testified that he was never under the influence of alcohol in front of A.M. When challenged, his evidence shifted to not recalling if he had ever been under the influence of alcohol in front of A.M.

157Despite this, I accept M.B.’s evidence about his general drinking habits. M.B.’s account of his consumption habits is broadly supported by S.L.’s evidence, which I accept. I also accept M.B.’s evidence that he was not slurring or having difficulty walking when he came home the night of his 2024 birthday. S.L. also observed no impairment – that is, slurring or difficulty walking – that night.

158M.B. also frequently stated that he did not recall specifics of events. The Crown says that M.B. repeatedly stated he “could not recall” as a defensive measure, to avoid committing himself. The Crown says it was not genuine forgetfulness but deliberate evasion.

159In the main, I do not agree. M.B.’s lack of recollection requires more nuanced assessment. For instance, his lack of recollection around the bedtime routine is consistent with him rarely having put A.B. and A.M. to bed. His lack of recollection around A.M.’s bedtime routine when she was older and her room was moved into the basement is consistent with his and S.L.’s evidence that he did not put A.M. to bed when she slept in the basement. His lack of recollection whether A.M. slept over at her paternal grandparents during the pandemic is consistent with his evidence that the pandemic affected his recollection of events. The pandemic’s impact on recollection is not uncommon. Another example, which I find unremarkable, is that he could recall A.M. having a phone but not the year she got it.

160But there were some exchanges in which M.B.’s lack of recollection is difficult to credit, such as when he testified that he could not recall whether he had made A.M. cry in the 10-year period captured by the indictment. Still, this particular line of questioning was not particularly probative of M.B.’s credibility more generally.

161I find that M.B. generally provided reliable evidence, though, as I discussed, there were areas in which he could not recall details.

162The Crown argued that I should consider M.B.’s demeanour when being questioned on whether he sexually assaulted A.M. The Crown says that although his evidence was that he did not sexually assault A.M., M.B. was nodding in the affirmative. The Crown says that his body was betraying him.

163This is a remarkable suggestion. In my view, it would be unsafe to engage in this kind of analysis as a measure of credibility. Courts are increasingly aware of the fallibility of testimonial behaviour as a measure of truthfulness. In any event, I did not observe M.B.’s alleged nodding.

164To return to the overall assessment of M.B.’s credibility, I have identified above specific areas of his evidence that I believe. In addition, his evidence denying the sexual abuse, when considered in the context of the totality of the evidence, leaves me with a reasonable doubt.

S.L.’s credibility and reliability

165I find that S.L. was both a reliable and credible witness. Her evidence was coherent. She generally had good recall. There were no significant inconsistencies to her evidence. Nor was her evidence shaken on cross-examination in any material way.

166The Crown argued that she was motivated to lie to protect M.B., particularly because she declined to give the police a statement. I disagree. The Crown has not established that S.L. was lying to protect M.B. Her evidence was nuanced. She made appropriate concessions on cross-examination. For example, she acknowledged that she had seen M.B. occasionally consume five beers at some family events but never seven or ten. The evidence is clear that S.L. was like a second mother to A.M. and that she cares for her and wishes to protect her. I am not persuaded that S.L. is lying to protect M.B. in the context of serious allegations of sexual abuse.

167The Crown argued that there were inconsistencies within her evidence and between her evidence and M.B.’s about whether she slept in Toronto. I disagree. On the whole, I find that there was no significant inconsistency in her evidence about whether she slept. As discussed, S.L. testified that she did not sleep much on any of the nights during the visit—perhaps a couple of hours a night—because C.B. was in hospital and she was pumping milk about every four hours. On cross-examination, S.L. acknowledged that she slept a few hours each night, but testified that she often waited up for M.B. to return from the hospital, pumped milk, and discussed C.B.’s status with M.B. on his return.

168Nor do I find S.L.’s evidence about whether she slept to be inconsistent with M.B.’s evidence in this respect. M.B. testified that S.L. and he barely slept. On cross-examination, he testified that he could not recall if S.L. slept at all. Contrary to the Crown’s contention, I find that M.B. and S.L.’s evidence was consistent in this regard.

A.M.’s credibility and reliability

169Recall that a witness whose evidence on an issue is not credible cannot give reliable evidence on that point: Morrissey at p. 526. My concerns with A.M.’s evidence relate primarily to her credibility. Having considered her evidence in the context of the evidence as a whole, I find that she was not a credible witness, as I will discuss below.

Findings

170Ultimately, I am left with a reasonable doubt as to whether the ongoing sexual assault alleged under count 1 occurred for three cumulative reasons. To be clear, in reaching this conclusion, I have considered the totality of the evidence at trial.

(a) M.B. and S.L.’s evidence about Toronto contradicts A.M.’s account

171First, I find M.B. and S.L.’s account of the Toronto trip to be highly credible and reliable.

172Their son was born with a serious heart issue. He was undergoing treatment at SickKids in Toronto. M.B. and S.L. were deeply worried about whether he would survive. On the visit to Toronto, M.B. spent most of his days at the hospital with his son. He returned late to the hotel room. Upon M.B.’s return from the hospital at night, he and S.L. shared the same bed consoling each other. Their other son slept in their bed. S.L.’s ability to sleep was interrupted to pump milk. While I find that they likely slept for short intervals, I find that their sleep was fitful. I find it implausible that, had M.B. moved to the other bed to sexually assault A.M. in the manner she described, he would not have been observed by S.L.

173In addition, there were important inconsistencies in A.M.’s evidence about whether her sister A.B. was in the bed with her and her father during the assault.

174A.M. told police that she wanted to share the bed with S.L. because she was uncomfortable sleeping with her father, but A.B. and B.B. ended up falling asleep in the bed next to S.L. and there was no room for A.M. She therefore lay down next to her father.

175She testified under cross-examination that, on the night of the assault, the family was watching TV in the hotel room. A.M., her sister, and her dad were on one bed. B.B. and S.L. were in the other bed. Her sister then went into the other bed with S.L. and B.B. When it was time to sleep, they shut off the TV. She confirmed this recollection later in the cross-examination. She recalled her father being in bed with her and her sister, and then her sister going to S.L.’s bed. She repeated this again in her evidence.

176But her evidence that her sister moved from the bed A.M. and her father shared to S.L.’s bed before everyone went to sleep is inconsistent with two of her prior statements. In A.M.’s electronic Notes App, she wrote that A.B. was in bed with her when her father slipped into their bed and touched her sexually. She also admitted on cross-examination that she told the police and Crown in witness preparation that she slept with her father and A.B. in the same bed. A.M. agreed on cross-examination that both these accounts of where A.B. was when A.M. says her father touched her sexually in bed could not be true.

177Moreover, there is a further inconsistency between her police interview—in which A.M. stated that she lay down in the bed her father was in because there was no room in S.L.’s bed—and her notes in her Notes App in which she stated her father slipped into her bed while her sister was sleeping right beside them.

178In my view, these are core elements regarding A.M.’s account of that night. These are significant changes in her account. In isolation they could indicate an unreliable or mutable memory, but when considered in the context of all the evidence – particularly M.B. and S.L.’s account of their nights in Toronto – these inconsistencies lead me to doubt A.M.’s truthfulness.

179M.B. and S.L.’s highly credible account of events in Toronto and the inconsistencies in A.M.’s evidence leads me to reject A.M.’s evidence regarding the alleged sexual touching in Toronto and it raises serious concerns regarding A.M.’s credibility as a whole.

(b) Bedtime routine contradicts A.M.’s account

180Second, I accept M.B. and S.L.’s account of M.B.’s involvement in childcare generally and specifically that he only rarely put A.B. and A.M. to bed.

181M.B. and S.L.’s evidence was consistent in this regard. M.B.’s lack of involvement in childcare is consistent with his long working hours and the priority he put on playing hockey on weeknights and on the weekend. The division of labour is also consistent with S.L. being a stay-at-home mother. Her focus was the family; his focus was on work. S.L. had a limited social life. The gendered division of labour is rooted in the evidence and M.B.’s socio-economic context. On the evidence, I do not find it implausible that M.B. rarely helped with baths or changed the children and did not change his daughters’ clothing. Given how infrequently he put A.M. to bed, I do not agree with the Crown that it defies credulity that he could not identify the kind of pyjamas she wore.

182The Crown argued that S.L.’s evidence about how rarely she went out and her lack of a social life defies common sense. I do not accept this submission. I find S.L. to have been honest in this regard. Her primary socializing was with her family and cousins. S.L. did not have many of her own hobbies. She played bingo. When her dad was alive, she would go with him to play bingo around five times a year. They would go during the week and only once or twice did they go on Sunday morning. After her father passed away, she only went to bingo once or twice with friends. She did not have much time for herself given how busy she was with the children.

183Although I do not accept M.B.’s recollection that when he put A.B. to bed and A.M. was present it would only take two to three minutes, I find that this was not a lie but a poor estimate of how long reading a bedtime story and saying prayers takes. Regardless, I accept that the routine was brief and that he did not linger in the room.

184The gist of M.B. and S.L.’s evidence, which I accept, is that:

a. S.L. generally put the children to bed, including on the nights A.M. was staying with them;

b. M.B. rarely put the children to bed. There were few occasions – possibly around a couple of times a year – when M.B. put A.B. and A.M. to bed when A.M. was younger;

c. M.B. did not often offer to put A.B. or A.M. to bed; and

d. On the rare occasions when M.B. put A.B. and A.M. to bed, the routine was brief and did not take longer than a bedtime story and a prayer.

185M.B.’s evidence in this regard is supported by S.L.’s evidence, which I accept. S.L. likely underestimated that on the rare occasions that he put A.B. to bed that the routine would last five minutes of less. But again, I find this was simply a poor estimate of the precise time. I accept that he did not remain in the bedroom for long. Although S.L. was not present in the bedroom when M.B. put A.B. to bed, I am satisfied that she would nevertheless have a general awareness of how long he was in the bedroom when she was elsewhere in the home.

186M.B. and S.L.’s evidence, which I accept, on these points contradicts A.M’s evidence. Their evidence contradicts A.M.’s evidence that her father put A.B. and her to bed almost every time they shared a room. A.M.’s evidence on this point also shifted between her first police interview and her cross-examination and continued to evolve during her cross-examination as she was confronted with her prior statements.

187Moreover, M.B. and S.L.’s evidence contradicts A.M.’s evidence that her father was constantly offering to put them to bed. I accept S.L.’s evidence that M.B. did not often offer to put A.B. and A.M. to bed. I accept M.B. and S.L.’s evidence that A.M. did not say to them that she did not want M.B. to put her to bed when she was sharing a room with A.B. I also accept M.B. and S.L.’s evidence that when A.M.’s bedroom was in the basement that M.B. did not put her to bed in that room. Nor did he say that he wanted to put her to bed when her bedroom was in the basement.

188These contradictions lead me to have considerable concerns regarding A.M.’s credibility more generally and leaves me with a reasonable doubt that the sexual assaults occurred.

(c) A.M. did not find pornography on M.B.’s phone

189Finally, I accept M.B. and S.L.’s evidence that A.M. never found pornography on M.B.’s old phone and showed it to S.L. I find them credible in their testimony that this never occurred. This contradicts A.M.’s evidence on this point and augments my concerns about her credibility overall.

Conclusion

190In sum, the cumulative impact of these three areas leads me to have significant concern regarding the credibility of A.M.’s evidence as a whole. Considered in the context of the totality of the evidence, I am left with a reasonable doubt that there was any sexual assault.

191For these reasons, the Crown has not proved Count 1 beyond a reasonable doubt. I therefore enter an acquittal.