R. v. D.O., 2026 ONSC 2109

R. v. D.O., 2026 ONSC 2109

COURT FILE NO.: CR-24-40000602

DATE: 20260413

ONTARIO

SUPERIOR COURT OF JUSTICE

Between:

HIS MAJESTY THE KING

– and –

D.O.

Defendant

M. Yousuf, for the Crown

S. Athwal, for D.O.

HEARD: October 27-30, November 5 and December 15, 2025

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR judgment

P. T. SUGUNASIRI, J.:

Overview:

1On September 27, 2023, K.W. reported that between the ages of 5 and 14, D.O., her uncle, sexually assaulted her in multiple different ways, primarily when she was at his home. D.O. is charged with one count of sexual assault and one count of sexual interference. K.W. was the sole Crown witness and D.O. did not call any evidence. The case turns on K.W.’s credibility and reliability. D.O. argues that K.W. is making the allegations up and/or her memory is unreliable. Despite some contradictions and issues with K.W.’s evidence, I find her credible and reliable about the core allegations such that I am not left with reasonable doubt. I find D.O. guilty on both counts. I explain below.

Legal Framework

2Count 1 charges D.O. with sexual assault pursuant to s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. To prove sexual assault, the Crown must prove beyond a reasonable doubt that:

i. D.O. intentionally touched K.W. for a sexual purpose:

ii. K.W. did not consent to the sexual touching; and

iii. D.O. knew that she did not consent to the sexual touching.

3Count 2 charges D.O. with sexual interference pursuant to s. 151 of the Code. To prove sexual interference, based on the version of the section in force at the time, the Crown must prove beyond a reasonable doubt that:

i. D.O. intentionally touched K.W. for a sexual purpose; and

ii. K.W. was under 14 years old.

4The date of the indictment ranges from July 1, 1989 to December 31, 1998. During this period, there is no dispute that K.W. was between the ages of 5 and 14 at least as of October 28, 1998¹ and that the legal age of consent for sexual activity was 14.²

5Any sexual acts that occurred after December 31, 1998³ are not covered by the indictment.

Summary of the evidence

The family structure

6K.W. was 41 years old as of October 28, 2025. She was born in 1984. She is self-employed and receives support from the Ontario Disability Support Program. K.W. testified that she has five siblings but only two are a part of her life. One sibling has passed away. D.O. is married to K.W.’s aunt, C.O. K.W. described having a difficult childhood and described her mother as abusive, creating a skewed sense of normalcy from a young age. K.W. stated that she had a very good relationship with C.O. for many years. She described D.O. as her only provider because her mother had difficulties and she did not have a father. She said D.O. gave her money, shoes, clothing and food. McDonald’s was a popular reward for K.W.’s cooperation with what D.O. asked of her. Sometimes D.O. gave money and clothing to her mother and siblings as well. K.W. testified that even into adulthood, when she lived with her mother, they would fight a lot, and her mother often kicked K.W. out. At those times, K.W. would go to D.O.’s home because it was the only other place she knew. K.W. also said that she went to D.O. and C.O.’s home later when she was fleeing from an abusive partner, again because that was the only place she could go to despite D.O.’s historical abuse.

7K.W. described six specific incidents of sexual abuse by D.O. and made some more general allegations. Incident #6, which she alleged occurred when she was 22, is not covered by the indictment but is relevant to the overall assessment of K.W.’s credibility and reliability.

Incident #1 – D.O. touched K.W.’s vagina with his mouth when K.W. was 6

8K.W. testified that she believed that she was about 6 years old when D.O. first sexually abused her. K.W. estimated that D.O. was in his late twenties or early thirties. She recalled that it was when her brother was just born and said there was a roughly six-year gap between her and her brother. She did not remember in what season of the year the abuse happened.

9K.W. stated that it happened in D.O.’s basement apartment at Dufferin and Davenport. In that apartment, K.W. recalled a picture with a nude woman and man and a window covering with a unicorn and a woman. There was a TV, a stereo system, a long couch, a bed, a storage unit, a turtle tank, and stairs going to an upstairs apartment that they did not have access to. Past that area there was a kitchen and a bigger room with a couch and table that they would stay in. It was like a guest room. K.W. believed that the address was on Dufferin Street.

10One night, D.O. put on a movie called “Curly Sue”. C.O. worked evenings and was out. K.W. was alone with D.O. K.W. was lying on the bottom of the bed and facing the TV that was aligned to the middle of the bed. The bed had a big thick wool blanket on it with an image of a tiger. K.W. testified that she was wearing a nightgown and underwear, and that D.O. put his face in her vagina while the movie was on. K.W. could not remember what D.O. was wearing. According to her, he took off her underwear before he did this. This made her feel disgusted, scared and confused. K.W. stated that D.O. said that her “crunchy cookie” tasted good. She testified that she did not know how long this was for but it felt like forever. She did not know if she felt any sensation in her vaginal area but recalled that she did not like it. After Crown counsel refreshed K.W.’s memory with a transcript of her September 27, 2023 police statement, K.W. agreed that she told the police that she had felt a tingling sensation when D.O. touched her with his mouth and that she did not like it. K.W. testified that she was crying at the time.

11K.W. testified that after this happened, C.O. returned home. K.W. said that she worked nights at a restaurant. She testified that D.O. and C.O. fought. K.W. stated that D.O. locked her and C.O. in a bathroom which she recalled was completely blue including the bathtub. K.W. could not say how long she was in the bathroom. The basement was always dark and she could not remember if it was day or night when D.O. returned to let them out.

12K.W. testified that this was the only incident that she recalled at this age but believed she had suppressed other memories. She explained this suppression as trying to block out new things that came to her mind because she did not want to continue to remember her traumatic life. K.W. stated the memories she actively blocks are incidents, pictures on walls, and places that he took her to.

Incident #2 – D.O. bounced K.W. on his knee when K.W. was between age 7 and 8

13K.W. testified that the second instance of abuse occurred when she was around 7 or 8 years old. She stated that they were going to a birthday party of someone related to the family living upstairs. The person upstairs was named Sharon. It was a Barney themed summer party. K.W. remembered wearing a neon dress with a cow-print bathing suit with a cutout at her belly and back underneath. There was a pool at the party.

14K.W. testified that they drove to the party, where there was a barbeque and lots of children. K.W. does not recall where the party was. She went with D.O., Sharon, and her children. She stated that he was bouncing her on his lap. She was wearing her bathing suit during the knee bouncing. On cross-examination she agreed that there were many others from the birthday party around. K.W. testified that she later got into trouble and had to go to a bedroom. K.W. stated that after the party she stayed with D.O. and C.O. but she does not recall details of the rest of that day or anything that happened at their apartment.

15On cross-examination K.W. felt that this incident was relevant because D.O. was bouncing her on his leg while she wore a bathing suit. She could not say who told her to wear the bathing suit but stated that D.O. took a photo of her in the bathing suit. In K.W.’s mind, she felt there was something not right about this incident with D.O. K.W. was candid however that she did not recall anything more that happened.

Incident #3 – digital vaginal penetration while on a spinning ride at Galleria Mall around age 7-10

16K.W. testified that D.O. frequently took K.W. to a carnival at the back of the Galleria mall. The carnival was there every summer. She testified that this was part of his routine of grocery shopping every Sunday, where they would go to Price Chopper and Zellers. During these outings, C.O. would stay home. K.W testified that the abuse happened on a spinning circle ride. K.W. explained that on this ride, the lighter person sat in front of the heavier person and when the ride was moving, the lighter person was pushed against the heavier person from the force of the ride. What they sat in looked like a Ferris wheel car but longer. K.W. estimated that the ride took one minute or so.

17On cross-examination, K.W. stated that her body was visible to others on the ride. She was not sure how many other cars there were on the ride but remembered that two people were allowed in each car. K.W. stated that it was possible that the ride was full as was the carnival.

18During the ride, K.W. alleged that D.O. would stick two fingers inside her vagina which she later stated to mean that he would rub two fingers over the clitoral area. Depending on what K.W. was wearing, it would be over or under the clothing. With pants it was over the clothing and with a skirt it was under the skirt but over the underwear. On cross-examination K.W. agreed that she told the police that she did not remember how many fingers D.O. used and that it was only at this trial that she remembered. K.W. gave her opinion on how trauma works to explain why she now remembered the number of fingers but did not remember when she told the police.

19K.W. testified that she went to this ride quite a few times and D.O. often inserted his fingers inside her while on this ride. K.W. recalled not liking the ride because of what happened. According to her, this abuse was frequent and constant. K.W. recalled D.O. telling her that the ride was so fun and that they could go on it more often if she liked the ride. K.W. testified that she told him that she did not like the ride. In response she stated that D.O. said that it was a fun ride, and that he paid money for her to go on it.

20K.W. testified that afterwards there was always a reward. He would take her to McDonald’s or buy her clothes. She testified that he said if she was a good girl she would get McDonald’s or a toy or candy that she wanted or to watch a movie that she wanted to see. According to K.W., she understood that if she was good to him by doing what he wanted, he would be good to her. She felt that she had to go along with D.O. because she did not have a good relationship with her mother and he was her only real provider and male figure in her life.

Incident #4 – The vaginal and anal penetration at age 10-12

21K.W. testified that she believed the next incident occurred when she was between 10 and 12 years old because it was when D.O.’s son was born. At this time, the son, T.O., was an infant between 3-6 months old and D.O. and his family were living at an address on O’Leary Street.⁴

22D.O. picked K.W. up after his work which she estimated was between 4:30 and 6 PM and took K.W. to Kmart. K.W.’s understanding was that she was going to spend the weekend at his place. K.W. did not remember any conversation with D.O. other than agreeing to go to McDonald’s which was a regular occurrence. When Crown counsel refreshed her memory using her police statement of September 27, 2023, K.W. agreed that she told police that D.O. told her, as he often did, that if she was a good girl and did what he wanted, she could get some Raptors stuff and go to McDonald’s. He said this while driving to the mall located at Bayview and Sheppard. The car he was driving was burgundy.

23K.W. testified that the Raptors had just been made a basketball team and she picked out some Raptors gear at Kmart that she wanted. At the time K.W. did not particularly like the Raptors but she knew that it was a new team and thought it might be cool to be wearing the gear at school. K.W. testified that she felt special that she was getting something her brother and sister were not. She stated that her family did not have that kind of stuff. At this point K.W. remained not close to her mom.

24K.W. testified that they then returned to D.O.’s home. At the O’Leary Street address, there were two houses combined to create three apartments. D.O. and C.O. lived in one unit and her grandparents in another. Sharon from the previous home lived in the third unit. K.W. gave a detailed description of the home including its layout and interior colours.

25D.O. put on a movie in the living room as he often did when incidents occurred. K.W. testified that he first put on a movie called “Fresh”, followed by “Ma Vida Loca”. K.W. was challenged with her December 6, 2024 police statement where she stated that “Curly Sue” was the very first movie. She explained that she was saying to the police that Curly Sue was the very first movie that was playing when the abuse started to happen.

26K.W. testified that she was lying on her stomach on the floor with a pillow under her and D.O. was sitting on the couch with the TV in front of them. K.W. remembered eating a Big Mac. There was a black bookcase on the left filled with movies. About 20 minutes into Ma Vida Loca, D.O. turned K.W. over onto her back, removed her bottom clothing including her underwear and did oral sex on her. K.W. could not remember what she was wearing. K.W. testified that she felt numb and felt that she had to do whatever he wanted. He then took her to T.O.’s room where there was a cot and teddy bears. T.O.’s room adjoined the living room and the wall separating them did not go to the ceiling so you could hear what was happening in the bedroom and the living room from the respective rooms. D.O. and C.O.’s room was further down the hall to the left.

27In T.O.’s small room, K.W. testified that there was a wall with a scoreboard with teddy bears, a door, a cot behind the door, a bunk bed, a dresser, and a brown armoire on the wall that was shared with the living room. K.W. later clarified that before the alleged assault the scoreboard was not yet on the wall – just teddy bears and pictures. The scoreboard was one of the items that D.O. had bought for her. The bedroom was covered in stuffed animals and pictures. K.W. testified that after the oral sex D.O. got her to lie down on the cot. The light was off.

28K.W. testified that D.O. put his penis inside her vagina without a condom and then put his penis into her anus. Before penetrating her anus, he said he wanted to try something new. He instructed her to turn over onto her knees. When he put his penis in her anus, K.W. said it hurt, and she felt a ripping sensation. K.W. testified that she jumped back, left and ran into the bathroom.

29On cross-examination K.W. was directed to her police statement where she described a single bed. She stated that she was referring to the cot when she described the single bed and elaborated that the cot could be moved to other rooms. K.W. also stated in cross-examination that the cot that she was assaulted on was behind the bedroom door – something that she did not say in direct examination. In re-examination by the Crown, K.W. stated: “The more I was questioned about it, the more the room came more to vision. So, I was able to put it behind the door instead of just in the room. Also, I try not to remember every single detail to move forward in my days… I don’t want to remember what he did to me constantly. I don’t – I hate for it to replay in my head. I just want release from it, so not everything always stays there until it’s all there, if that makes sense.”

30K.W. went on to describe the bathroom that she said she ran to. It had white walls that were feather dusted in black paint. The bathroom had dolls hanging on the walls and a shaver mounted to a wall. The toilet was behind the bathroom door, and there was a tub against the wall with a window.

31K.W. testified that she and D.O. fought because she would not come out of the bathroom. She testified that she thought they were fighting because she did not hold her end of the bargain. She did not recall if she locked the door, but she was sitting behind the door not wanting him to come in. On being refreshed by her police statement, K.W. stated that there was a lock inside the bathroom and that she locked the door. K.W. testified that she did not know how long she was there, but it was probably a long time. She later testified that she stayed in the bathroom the whole night and slept in the tub. She used to sleep in there a lot. K.W. testified that there were no discussions after leaving the bathroom.

32K.W. stated that the next morning D.O. and C.O. took her home. She at first said that she was not allowed to take the Raptors merchandise with her. She then stated that perhaps she had tried to take them home but was not allowed. K.W. said that either she forgot them when she got into the car, or they were left behind. K.W. testified that either way the Raptors stuff did not go home with her. K.W. testified that she did not know where the Raptor’s clothing went. She stated that when C.O. and D.O. dropped her off at home, she was upset with them and kicked the swing that T.O. was sitting in and sent him flying. K.W. was upset that T.O. was going to get the gifts that she had to do all those things for. K.W. stated that she saw the Raptors items the next time she went to D.O.’s house. She observed the basketball net and scoreboard on T.O.’s wall.

Other instances of vaginal penetration

33K.W. stated that she remembers D.O. vaginally penetrating her multiple times and cleaning her up multiple times. She testified that he had sexual intercourse and oral sex with her at least 15 times between the ages of 6 and 14. On cross-examination K.W. could not quantify how many times D.O. vaginally penetrated her and clarified that it was 15 or more sexual acts over the 8 years.

34K.W. testified when having vaginal penetration, D.O. ejaculated on the top of her vagina, on her breast and on her lower back. After ejaculating, he would get up and get a facecloth that was very hot and wipe her down. She recalled how hot it was and his comment that it takes away everything. K.W. stated that he would wipe the area he ejaculated on.

Forced fellatio

35At first K.W. did not remember whether D.O. had forced fellatio on her. K.W. stated that she did not remember and did not want to remember. After refreshing her memory with a review of her police statement, K.W. agreed that she told the police that on one occasion D.O. put his penis in her mouth and ejaculated, causing her to “puke”. On cross-examination, K.W. stated that she did not forget about the incident – rather it was something she did not want to remember. This was not the most egregious incident – the anal sex was more egregious – even though this incident made her sick.

The CAA incident reinforced that no one would believe K.W. if she reported D.O.

36K.W. stated that around the age of 13 or 14, she and D.O. went to the McDonald’s at St. Clair and Vaughan. D.O. wanted her to go into the McDonald’s by herself but she wanted him to go with her because she felt people were looking at her and judging her. K.W. stated that ultimately D.O. exited the car and left his keys in the car. That required a call to CAA and then to C.O. She does not know if anything happened at that time but assumes that it had because of the trip to McDonald’s and the pattern of that being her reward.

37K.W. testified that by this age, she and D.O. were arguing a lot more. She does not know why – she speculated that it was because she was getting older. K.W. stated that she threatened to report him but that he stated that no one would believe her.

Incident #5 – the touching while C.O. was present – age 13 or 14

38K.W. testified that she was at D.O.’s house watching a movie in the living room called “Are We There Yet”. There were two couches at the O’Leary residence. She was seated on the two-seater and C.O. and D.O. were on the three-seater. K.W. testified that C.O. and D.O. left and then returned. At that point C.O. told her that she would be more comfortable on the three-seater and they switched places.

39According to K.W., she was wearing track pants and was leaning on an arm of the couch. D.O. was sitting on the floor in front of the couch and was touching her breasts and vagina over her trackpants for a few minutes. There was a blanket over K.W. She testified that she felt uncomfortable. K.W. testified that C.O. then left the living room leaving K.W. and D.O. on their own.

40On cross-examination K.W. confirmed that she would have been 13 or 14 in the late 1990s. She did not know that this movie was released in 2005 and agreed that she was likely 21 in 2005. K.W. explained that perhaps that movie was not the one being played during this assault, but she was not misremembering the assault itself. K.W. continued to explain that both her answers were true – she did watch that movie with D.O. and the sexual assault did happen – she just may have gotten the timing wrong.

The move to Brampton foster care

41K.W. said that at around this same age, she ended up in the foster care system after she reported a different incident of someone touching her. She testified that she had first reported the touching to her mom but was not believed. She then told a teacher who told a guidance counsellor, who told the principal. The school then reported to the Children’s Aid Society and K.W. was removed from her mother’s home.

42K.W. testified in cross-examination that even when removed from her home by the authorities, she did not feel comfortable with them. Even though she reported to her school, she felt that the people she reported the incident to did not necessarily believe her allegations. Her focus at the time was to get herself out of an immediate situation that was not safe for her.

Incident #6 - the assault at age 22

43K.W. testified that at this time she was living at Jones and Gerrard and needed food. She contacted D.O. and C.O. for assistance. At the time C.O. was in the hospital so she went to clean their house and car. After cleaning them K.W. asked D.O. to drive her home and they stopped at the Wendy’s at Leslie and Lakeshore. When D.O. went to drop K.W. off, as they were sitting in the car outside her home, D.O. placed his right hand in her thighs – meaning between her legs and on her thigh – and asked her if she remembered when she was little and he was good to her, and she was good to him. According to K.W., he stated that he could be good to her again if she was good to him. K.W. said that she got out of the car and was never alone with him again. She agreed in cross-examination that she would however be in his presence with other people.

44On further cross-examination, K.W. stated that she did not tell the police in her September 27, 2023 statement that D.O. had put his hand on her thigh between her legs, but had said instead that his hand was on top of her thigh. When confronted with this difference, K.W. was confident that she told the police this information elsewhere, perhaps in her December 6 statement, and with her memories clearer now, she was confident of the recollection. K.W. testified that her memories had been evolving since having to talk about the events, but she was actively suppressing them because she did not want to remember any more than she already had. She stated several times that she just wanted to move on and live a healthy life.

45Also on cross-examination, K.W. testified that it was this incident that triggered her memories of the specific abuse that she had suffered over the years. K.W. could not quantify how many memories were triggered, whether it was all or only some. K.W. again said that she was able to block her memories from her mind even though she was in his presence with other people from time to time.

Visiting C.O. and D.O. as an adult

46K.W. testified that she and her mother argued a lot and she was often kicked out so she went to C.O. and D.O.’s house because it was the only place she knew. At age 26 K.W. had to move to C.O. and D.O.’s house to leave an abusive relationship. She stated that C.O. was having mental health problems and she cared for C.O., so she went to live there at various times. The last time she lived with them was at age 25 or 26.

47K.W. stated that when she went to see C.O. she would leave before D.O. returned home. When she lived with C.O. and D.O., she avoided D.O. by spending a lot of time in the kitchen with C.O. or by sitting outside and watching the airplanes fly over the home. K.W. testified that she slept on a cot, on the couch, in the bunkbeds and sometimes with C.O. This was at the O’Leary house. When she was at their Northcliffe address, there was an occasion when D.O. returned home early and she left quickly. She did not live at the Northcliffe house with them. On cross-examination she stated that she would also return to live with her abusive boyfriend.

48During this period K.W. was never alone with D.O. but did not know how many times she saw him. On being pressed by defence counsel, she assumed that it would have been every time she was there because he lived there. Also on cross-examination, K.W. stated that she moved out of their house and was living on welfare in community housing. K.W. agreed that C.O. assisted her with groceries from time to time. She did not take anything else from D.O. after age 22. That was the last time D.O. gave her money.

Dating people to keep her safe

49K.W. stated that from about age 15 she dated people who were bigger than D.O. to keep her safe – dealers and street men. They all came from community housing projects. She believes that D.O. did not like her boyfriends.

The report to the police

50K.W. reported to the police on September 27, 2023 because she did not want the burden of keeping the secret anymore. K.W. testified that she wanted to be happy, healthy and safe. K.W. stated numerous times that she finally felt safe in her life having met her husband at age 37. K.W. said that he was the first person to know that D.O. had abused her.

Analysis:

51The case turns on K.W.’s credibility and reliability. If I find her credible and reliable on the core allegations such that her evidence does not leave me with reasonable doubt, the Crown will have proved both offences beyond a reasonable doubt. After considering the whole of the evidence, I believe K.W. on the core allegations.

Challenges to K.W.’s credibility and reliability

52K.W. had difficulty testifying at times, both in direct examination and in cross-examination. I find her difficulty genuine and not performative. She was consistent in her core allegations and remembered a great deal of detail that was unshaken in cross-examination. Where K.W. did not remember details, was mistaken, confused or inconsistent, it did not shake her overall credibility and reliability about the core allegations. I will now address the most significant challenges to K.W.’s credibility and reliability.

K.W. felt safe enough to report other abuse

53K.W. was cross-examined on how, at around the age of 13 or 14, she felt safe to tell a teacher about other abuse in her life but did not feel safe to tell them about D.O.’s abuse. She was cross-examined on what the word safe meant to her. K.W. stated that she had been abused from ages 2 to 33, when she fled for her life and that of her daughter. She then worked on herself and felt safe when she met her current husband at age 37.

54After considering the exchange between defence counsel and K.W. on this issue and in the context of the whole of the evidence, I accept K.W.’s evidence that despite feeling safe to report someone else, she did not think that she would be believed about D.O.’s touching. K.W. testified about abuse at the hands of her mother and her overall lack of safety at that time in her life. She stated that her mother had not believed her about other allegations. Her evidence revealed family instability and little to no family support outside of D.O. and C.O. In those circumstances, it is understandable that she could feel safe reporting some things, but not others, especially when D.O. was her provider. K.W. also testified that it was around this same age that she and D.O. had a conversation at a McDonald’s where she threatened to report him and that D.O. said that nobody was going to believe her. K.W. reiterated that D.O. consistently told her that she would not be believed. I find her explanation reasonable within the context of a life of abuse that I accept K.W. had.

The journalling challenge

55At first K.W. stated that she did not have a memory of the described events after the age of 22 until she met her husband at 37, when she felt safe enough to talk to him about it. In cross-examination, defence counsel took K.W. to her September 27, 2023 police statement where she mentioned a time at age 26 when her ex-husband taunted her saying “By the way he looks at you, I can tell that you fucked your uncle.” Upon reviewing this information K.W. recalled telling the police this. K.W. agreed that at the time, she wondered how her ex-husband could know about that stuff. K.W. testified that later she figured out that he had read her diaries before he threw them out.

56Defence counsel pressed K.W. with a question about how she could journal about events that she said she had repressed. K.W. stated that she started journalling at age 20. She stated that she did not journal about events in her childhood – only about Incident #6 (at age 22 with D.O.’s hand on her thigh).

57Defence counsel urged that it cannot be true that K.W. did not journal about the childhood abuse because there was nothing about the incident at age 22 that involved “fucking her uncle”. This was one basis upon which defence counsel argued that K.W. was either fabricating her account or had an unreliable memory.

58I do not find that this evidence shakes either K.W.’s credibility or reliability. I do not have in evidence what exactly K.W. wrote in her journal about the incident at age 22. It is possible that a description about the event at age 22 along the lines of D.O. wanting to re-start a sexual relationship with K.W. could have caused her ex-husband to comment as he did. K.W. was directed by Crown counsel not to testify about what she wrote in her diary absent an order permitting counsel to tender that evidence.⁵ Without further evidence, I do not find this line of questioning damaged to K.W.’s credibility or reliability.

K.W. exaggerated the frequency of the abuse

K.W. testified in direct examination that she visited D.O. every weekend when she was 6. Later, in cross-examination, defence counsel’s questioning led her to agree that she visited D.O. every weekend for eight years and that she was abused every weekend she visited. Defence counsel quantified that as 415 alleged assaults over the course of the eight years. When put that way, K.W. resiled from the number and instead said that she did not remember every assault and did not want to remember, but that it was over 15 instances of various types of abuse between the ages of 6 and 14.

59I understand defence counsel’s concern. K.W.’s evidence about the frequency of abuse on its face seems incredible, or at the very least could reflect a carelessness for the truth. After reviewing the exchange, I do not find that K.W. was being careless with the truth. First, K.W. seemed somewhat confused by what defence counsel was asking and the exchange on this topic was quite disjointed. Second, K.W. experienced the abuse as a child. While I evaluate K.W.’s credibility and reliability as an adult witness, it is well accepted that children do not have the same perception of time as adults.⁶ I consider K.W.’s credibility as an adult witness in the context of her age at the time the events about which she is testifying occurred.⁷ I extend this accepted principle to the perception of frequency. K.W. testified elsewhere that she felt that her abuse was constant. I view K.W.’s exchange with defence counsel in this context. Third, it is also quite possible based on the whole of K.W.’s evidence that the abuse did happen every weekend or virtually every weekend K.W. was with D.O. but that she could only specifically remember the six incidents. Fourth, K.W. was very careful in her description of the core allegations. I do not find that she exaggerated her description of those even if I accepted that she exaggerated the frequency of the abuse.

60Defence counsel also suggested during this line of questioning that it would defy common sense, or be remarkable, that K.W. would stay silent and keep returning to D.O.’s home in the face of such extensive abuse. Defence counsel’s question was to test K.W.’s credibility and did not rely on myths and stereotypes of reporting habits of real victims of sexual assault. I appreciate defence counsel’s appropriate approach to the issue. In the family situation that K.W. was in, it is not surprising or strange that K.W. neither reported nor avoided the abuse despite any perceived or actual frequency. K.W. stated numerous times that she did not have a stable and safe life at home with her mother, that D.O. was her only provider, and that his home as an alternate to her mother’s home was all that she knew.

Problems with chronology

61It appears from defence counsel’s cross-examination that K.W. reported the fifth incident to the police on September 27, 2023, and said that it was the last instance of abuse by D.O. However, K.W. agreed that she went back on December 6, 2024, to add the fourth incident that was earlier in time. When K.W. reported the fourth incident, she again indicated that it was the last time because she did not remember going there alone after that.

62When this discrepancy was put to her, K.W. maintained the same position that she maintained throughout, which was that her memories surfaced from time to time, that she did not want to remember all the abuse to move on with her life, and that some details became clearer as she talked about them. K.W. also said that both statements are true – the Raptors merchandise incident involving vaginal and anal sex (Incident #4) was the last time something happened when K.W. was alone with D.O. and the touching at age 13 or 14 when C.O. was present (Incident #5) was the last time she could remember as a child. K.W. insisted however that the touching of her thigh at age 22 was truly the last incident, but she distinguished it from her childhood experiences.

63I accept K.W.’s explanation based in part on the manner that K.W. testified, the difficulty she sometimes had in understanding defence counsel’s questions, and the words she used to describe her experiences. There were several occasions during her testimony when she would not end her sentence fully, or the question-and-answer exchange would be cut off such that K.W.’s answer was either disjointed or incomplete. I do not find that this was an example of K.W. fixing a lie. I find no moment in the fact that K.W.’s recollections did not come to her in chronological order. In my view, her descriptions were those of a person who was using ordinary language to report difficult events to the police. K.W.’s statements ought not be forensically dissected such that her words are held to a standard of perfection.

Is K.W.’s memory reliable?

64Defence counsel argued that even if K.W. was credible, her memories were nevertheless unreliable.

65K.W. testified that the sexual abuse stopped at age 14 and she blocked the abuse out until age 22 when D.O. reminded her of that abuse in the car outside of her home. After that time, the memories of the specific instances of abuse that she described did not resurface again until about age 37 when she met her current husband. K.W. explained that she finally felt safe and wanted to free herself of the burden of the secret that she was made to keep for so long. K.W. testified that she felt that everyone knew that something had happened to her but it was only after meeting her husband that she identified who caused it and allowed herself to remember some of the specific instances of abuse. K.W. repeatedly described her memories of the abuse as ones that she suppressed and recalled at different times. She said she did not want to remember, and she recalled what she wanted to recall.

66When I consider K.W.’s evidence as a whole, I have no concerns about the reliability of her memories about the incidents that she described. I do not take K.W.’s statement that she “suppressed” her memories to mean that they were totally lost and then suddenly recovered. What I take from K.W.’s descriptions of her memory are that she was generally aware that D.O. had sexually abused her but chose not to engage with those parts of her life to survive the challenges of her day-to-day life. The memories were buried, not lost. K.W. testified that she was dealing with abuse long after D.O.’s abuse stopped, and she had to focus on doing whatever she felt necessary for her, and later her daughter, to be safe. For example, when describing what she meant by suppressing memories, K.W. stated in direct examination that there were things she wanted to remember and things that she chose not to. She said, “Or maybe I should explain it like, if new stuff comes to my mind, I like block it out because I don’t want to continue to remember my traumatic life.” As another example, K.W. stated that as an adult K.W. did continue to visit C.O. and D.O. out of necessity and to help C.O. but was never with D.O. alone and often left the home before D.O. got home. These are the actions of someone who knew that she was not safe with D.O. even if the reasons why might have been largely buried. K.W. also testified that at the age of 15 she dated boys and men who were bigger than D.O. – implying that K.W. knew that D.O. had harmed her and was dating people who could protect her if needed.

67Defence counsel argues that while judges are entitled to rely on common sense and life experience in assessing credibility and reliability, their common sense cannot extend to scientific phenomena about how memory functions over time. The defence submits that the Crown is relying on what amounts to be a scientific mechanism of memory repression and recall, that requires an expert opinion.

68I disagree that the Crown is relying on a scientific mechanism of memory repression and recall that requires and expert opinion. As noted by the Court of Appeal for Ontario in R. v. P.J.C.:⁸

The assessment of the credibility and reliability of witnesses, including those testifying about traumatic events they suffered as children (or as adults), is the daily fare of judges and is grounded in common knowledge and experience. In general, triers of fact do not need to know how the brain functions and encodes memories to assess the probative value of this evidence. The Supreme Court and this court have confirmed that trial judges are equipped to analyze the evidence of witnesses with frailties in their memory without the assistance of expert evidence.

69As a matter of common sense, logic and human experience, I accept that K.W. chose not to regularly engage with her traumatic past to survive, and that she could not engage with it as she faced new and ongoing abuse from others. I accept that it was only when she met her husband that she had the environment to think of the abuse, report it and try to rid herself of the secret she kept for so long. In other words, K.W. did not want to think about it. This is not outside regular human experience. No one remembers every detail of their childhood or engages with every traumatic event that has happened to them. In this case, K.W. engaged with those memories when forced to by D.O. and her ex-husband, and more fully when she felt safe and able to try and move on with a happy and healthy life, both as a woman and as a parent. Further, as a matter of human experience and common sense, I accept that as she spoke more about the events of her past and let herself remember in the safety of her relationship, more details came to her and not necessarily in chronological order.

70This is very different than the fact situation in R. v. B.B.⁹ that the defence heavily relied on. This is not a flashback case. It is more like R. v. P.B.¹⁰, where what the complainant described in her testimony was not entirely a “recovered” memory in the sense that the term was used in B.B. and R. v. Tan¹¹. The Saskatchewan Court of Appeal, at para. 68, described her evidence in this way:

As I read her evidence, J.J. did not say that her memory of the incident was a complete blank slate after the event occurred, or when she gave her statement to the police a week after it happened. Nor did she testify to having recovered a memory that was, at any point, completely absent or non-existent. Rather, she testified that the flashbacks had simply helped her to “remember a little bit more” of the details of what happened than she had initially remembered.

71While the facts of this case are different in the sense that K.W. testified to abuse that she remembered from her childhood, the tenor of the way she described her memory and how it worked is similar. When she used the words “recover” and “supress” – she did not mean it in the B.B. sense that she had no inkling of any abuse by D.O. until it suddenly came to her later in a dream, through therapy, or some other outside source.

72What I do disregard are K.W.’s comments on how “trauma” or “trauma brains” work. K.W. is not qualified to opine on how trauma brains work or how trauma impacts memory.

73Defence counsel further argued that K.W. was not reliable because she was suggestible – for example she had not remembered the forced fellatio until Crown counsel allowed her to review her police statement. Given my acceptance of K.W.’s descriptions of how her memory worked, I do not find that K.W. was suggestible. She candidly said she did not remember telling the police about that event even though it made her physically ill because she did not want to constantly engage with every traumatic detail of what happened to her.

74Defence counsel also put to K.W. that many of the incidents involved movies and locking herself in the bathroom – something defence counsel described as a very peculiar similarity. In response K.W. explained that D.O. was a movie person. She described a wall of movies at his home. She also said that the bathroom was often her safe place but that in fact she only described one incident where she retreated to the bathroom. The other time was when D.O. locked her and C.O. in the bathroom. Nothing in this exchange raises concern about K.W.’s reliability in recalling the core allegations. I do not share defence counsel’s view that these similarities are very peculiar. K.W. explained that she was a child who was sent to D.O.’s home every weekend or at least regularly. D.O. was a financial provider. In that context, it makes sense, and I accept that D.O. used the promise of food and movies to abuse K.W. I accept K.W.’s evidence that movie watching was D.O.’s thing and that he had a wall of movies in his home. None of this is unusual.

75Defence counsel asked if it was possible that her memories were confused or blended. This implied that perhaps K.W. was confusing D.O. with someone else. However, there was no defence application with respect to an alternate suspect nor a court order allowing the defence to tender evidence about other sexual activity. K.W. was in any event clear that her memories were of sexual acts done to her by D.O.

Conclusion:

76I believe K.W. Her evidence was credible and reliable. Despite the frailties that I have discussed, K.W.’s evidence did not leave me in a state of reasonable doubt. The parties agreed that the case rises and falls on whether I accept that the described events happened. I find that they did.

77I find that Incidents #1, #3, #4, #5, the forced fellatio, and multiple acts of vaginal penetration fall within the indictment. Incident #6 falls outside the indictment.

78I find D.O. guilty of sexual interference relating to Incidents #1, #3, #4, forced fellatio and additional instances of vaginal penetration outside of Incident #4. I am not satisfied that the knee bouncing described in Incident #2 was of a sexual nature. I have insufficient evidence with respect to Incident #5 about the time of year it happened and whether K.W. was under the age of 14.

79I find D.O. guilty of sexual assault relating to Incidents #1, #3, #4, #5, the forced fellatio and additional instances of vaginal penetration outside of Incident #4.

Justice P. Tamara Sugunasiri

CITATION: R. v. D.O., 2026 ONSC 2109

FILE NO.: CR-24-40000602

Footnotes

1. 1There was no evidence of K.W.’s exact birthdate – only that when she testified on October 28, 2025, she was 41 years old.
2. 2Criminal Code, s. 150.1(1) as it appeared on December 31, 1998.
3. 3Even if K.W. was still 14 after December 31, 1998.
4. 4K.W. remembered specific addresses however I leave out those details to protect her identity.
5. 5Defence counsel agreed to this direction.
6. 6See for example R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 11.
7. 7R. v. A.M., at para. 11.
8. 8R. v. P.J.C., 2025 ONCA 196, at para. 38.
9. 9R. v. B.B., 2023 ONSC 396, 2023 W.C.B. 1518.
10. 10R. v. P.B., 2024 SKCA 77, appeal dismissed 2025 SCC 8, 500 D.L.R. (4th) 583.
11. 11R. v. Tan, 2023 ONSC 3750.