R. v. A.S., 2026 ONSC 2316

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. A.S., 2026 ONSC 2316

COURT FILE NO.: CR-24-1497

DATE: 2026-05-26

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

A.S.

Applicant

J. Mongeau, for the Crown

D. Haines, for the Applicant

HEARD at Sudbury: March 23-26, 2026

REASONS FOR JUDGMENT

A.D. KURKE J.

Background

1The accused is charged on a four-Count indictment with offences under ss. 271 and 151 of the Criminal Code with respect to two complainants, E.M. and H.D. The charges in Counts 1 and 2 relate to E.M., the accused’s daughter, and each count spans a period of time from January 1, 2015 to December 22, 2022, when E.M. was between 6 and 14 years old. Counts 3 and 4 relate to H.D. and involve a single incident that is alleged to have occurred within the month of December 2022, when H.D. was 15 years old. E.M. and H.D. were friends at the time they went to police about the accused’s conduct.

2The two complainants testified and were cross-examined. The focus of the case was on whether the complainants’ evidence could be accepted to prove guilt of one or more offences beyond a reasonable doubt. Given the ages of the complainants at the time of the alleged offences, consent was not at issue. Mistake about the ages of the complainants did not arise. On consent of the accused, the complainants both testified by CCTV, with a support person.

Facts

H.D.’s evidence

3The first witness was H.D., born in August 2007 and now 18 years old. She would have been 15 years old when the alleged incident occurred. E.M. was H.D.’s best friend in childhood. They became friends when they were 11 or 12 years old and were so close that they were almost like sisters. The friendship soured somewhat when E.M. revealed what she said H.D. had told her that H.D.’s father had done to H.D., leading to an investigation. The two are now not very close.

4In 2022, H.D.’s relationship with E.M. was very close. They spent a lot of time together, primarily at H.D.’s house. H.D. rarely attended the accused’s house. On the subject of drug use, H.D. did not know E.M. to use magic mushrooms, or drink much, but she did smoke “weed.” H.D. acknowledged smoking weed and drinking and stated that she and E.M. did these things every few days. H.D. believed that E.M. had a boyfriend “Damian,” but that it was after December 2022.

5H.D. knew E.M.’s grandparents and went to their home often. E.M. lived between there and E.M.’s mother’s house. While E.M. stayed at H.D.’s house in October/November 2022, technically she was living with her grandparents. H.D. admitted that she and E.M. would cover up for each other and lie for each other. For example, E.M. asked H.D. to lie for her about where E.M. was going. E.M. never asked H.D. to lie to the accused about where E.M. was because E.M. was not living with the accused. It was to E.M.’s grandparents that H.D. had lied for E.M., because that is where E.M. was living.

6One evening in December 2022, E.M. suffered an “episode” at her grandparents’ home and had to go to hospital. So far as H.D. knew, E.M. got out of hospital the next night. E.M. and H.D. ended up at the accused’s home late of an evening to spend the night. H.D. had gotten a call from E.M.’s grandmother that E.M. was going to her dad’s house. H.D. steadfastly denied being at E.M.’s grandparents’ home then or when E.M.’s “episode” happened.

7H.D. testified that she went to spend the night with E.M. at the accused’s house one night in December 2022. This was only the second time that she had been to his house. She did not remember how she got there. The accused’s female partner and her daughter were in the house sleeping when E.M. and H.D. went into the house, so E.M. and H.D. went to the garage. In the garage there was a loft area accessible by a ladder with a bed where the girls were going to sleep. There was a grey couch in a room beneath.

8H.D. did not remember anyone being at the house when she was there other than herself, E.M., the accused, the accused’s partner and her child.

9Concerning what H.D. did remember, E.M. and H.D. went to bed in the loft in the garage to sleep. H.D. was wearing pajama pants, a tank top, and a zip-up sweater. E.M. had a bedroom in the house, but that is where the accused’s partner’s daughter was staying. The accused had just finished building the loft in the garage, so H.D. kept feeling wood chips sticking to her pants and poking her as she tried to sleep. Finally, after “maybe an hour” she got up to go downstairs to sleep.

10The couch down below had cushions that could be assembled into a space the size of a queen-size mattress. The accused was lying near the back of the couch against the wall. H.D. went to lie down on the other side of the couch, positioned in such a way that her feet were in the direction of the accused’s head. She went to sleep. During the night, the accused woke H.D. up to flip directions, as he did not want her feet in his face. She did so and lay down facing away from the accused but now oriented the same way as he was. She felt there was space between them that could have accommodated two people.

11When H.D. next woke up, she discovered the accused putting his hand down her panties from behind her, and the other hand on her breast. The accused tried to move the hand in H.D.’s panties lower, towards her vagina; he was touching the skin beneath her stomach, over her pelvic bone. His other hand was touching her right breast, which he was grabbing underneath her tank top and zip-up sweater. H.D. did not move at first, then moved around for about five seconds once she realized what was going on, but the accused continued his contact. So H.D. rolled onto her front, because she did not want the accused to touch her. The accused stopped and did nothing else to her. The accused then went “back to bed”, by which I take H.D. to mean “back to sleep,” as did H.D., after trying to convince herself that this had not just happened.

12H.D. clarified in cross-examination that she thought the accused was grabbing her right breast with his right hand and going down her pants with his left. She explained that all the touching was happening simultaneously, and not sequentially. She was then brought to her statement to police, given in January 2023. In giving that statement, H.D. was taken numerous times through the event by her interviewer.

13In her statement to police, H.D. had told police that the accused was also sucking on her breast. At trial, H.D. did not remember telling that to police, but agreed that she said it when she saw the video. H.D. did not remember that the breast sucking happened but stated “it’s fuzzy and hard to remember.” At one point in the video, H.D. had even explained to her interviewer that the accused moved her tank top aside to suck on her left breast.

14H.D. also told police that when she woke up the accused was cuddling with her; she explained that she meant he was holding her while he used his hands on her. H.D. disavowed any notion of a sequence of touching that she might have appeared to have offered in her statement to police, explaining that it was all happening at the same time. Although at different points in her video statement to police H.D. appeared to be equivocal on which hand was touching what part of her, she maintained throughout her testimony that one hand was on her breast, and one down her pants at the same time. Asked about her various descriptions of what the accused was doing with his left and right hands, H.D. explained that she struggles “with left and right a lot.”

15When H.D. woke up in the morning, she climbed up to see E.M. in the loft area above and stayed there about an hour. The accused came up and said, laughing, “sorry about last night. I thought you were [E.M.].” To police, H.D. had attributed to the accused, “sorry for cuddling you last night; I thought you were [E.M.].” E.M. was there when he said that. In her evidence, E.M. did not recall the accused saying anything. H.D. did not respond at all, and the accused left, stating that he was going to work. After the accused left, H.D. stayed with E.M. until the two got into an argument, and then H.D. left at about noon. She had not told E.M. about what the accused had done to her, because she did not know how to bring it up.

16H.D. did tell E.M. what the accused had done to her over Snapchat a few weeks later, although she could not remember the date; her comments were automatically erased by Snapchat. She provided details to E.M. Exhibit 1 is E.M.’s response at the time explaining what the accused had been doing to her. In fact, E.M. had come to stay with H.D. before Christmas that year, but H.D. did not remember whether she received the message in Exhibit 1 before or after E.M. came to her home for the visit. The Crown acknowledged that Exh. 1 was a “prior consistent statement,” but explained that the purpose of Exh. 1 to the Crown’s case was only to rebut any allegation of recent fabrication.

17After E.M. told her what had happened to her, H.D. became concerned for the accused’s younger daughter, so she told her parents what had happened. She and E.M. told H.D.’s parents in the kitchen of H.D.’s home. H.D. thinks E.M. made a disclosure there as well. H.D.’s parents did not initially believe her, leaving H.D. upset, disgusted, and shocked. But after a lengthy conversation, H.D. felt that they believed her. The disclosure was made only after H.D.’s parents told E.M. that she had to go back home, as school was about to start again. E.M. continued to stay with H.D.’s family.

18The night following their disclosure, H.D. and E.M. stayed in the same room, talking. E.M. recalled H.D. telling her that the accused sucked on her breast. The next morning, H.D. and E.M. called police on speakerphone. H.D. remembered that it was the idea of both of them to do so, although at the preliminary inquiry she did not remember calling police. They both went to talk to police. H.D.’s mother took H.D. to the police station to give a statement. H.D. claimed not to have spoken to E.M. about the allegations after speaking to police.

19H.D. remembered giving a statement to someone when police were looking into an incident involving her father but did not remember having talked to E.M. about it. She denied that E.M. ever said that she had made it up because E.M. wanted H.D. to live with her. H.D. did not know that E.M. was going to make a disclosure about H.D.’s father. After this, H.D. and E.M. “stopped being friends.” They see each occasionally when they go out, and they do sometimes communicate still.

20H.D. admitted to an incident in October or November 2022 in which she and E.M. had slept at H.D.’s grandfather Norm’s house. Two boys stayed there also, and the children stole things from Norm’s house, including his vehicle. Norm caught them and took his vehicle back. H.D. denied that she and E.M. discussed how they could make up allegations against Norm and the accused if they needed to.

E.M.’s evidence

21E.M. was born in March 2008. The accused is her father. In December 2022, E.M. would have been 14 years old. E.M. and H.D. were friends since grades five or six. They spent a lot of time together during the COVID lockdowns. In 2022 H.D. was like a sister. E.M. is currently not as close with H.D. as she used to be. They still sometimes communicate by phone or Snapchat. They rarely talk.

22E.M. denied drinking much. In 2022 she had started smoking marijuana, but not often, mainly when “it was in front of us.” She admitted that she became addicted to cocaine. E.M. testified that she did cocaine with H.D., although H.D. did not speak about using cocaine in her evidence.

23E.M. used magic mushrooms at her grandparents’ house one day in December 2022; she got them from her brother. H.D. was not with her. E.M. had a bad reaction and an ambulance was called; she started cutting herself with scissors. E.M. went to the hospital, and the accused picked her up from there to take her to his house. E.M. testified that her father laughed about the mushrooms, telling E.M. that “everybody does it when they are young.” He and his friend who was in the car were joking about the situation. The accused told her that E.M.’s grandparents did not want her to stay there anymore, though she later discovered that was not accurate. E.M. denied that H.D. came to stay over the very night of her release from hospital.

24In December 2022, E.M. was dating a boy named Damian, who was older and did cocaine. The accused was not fond of Damian, and spoke harshly to him, embarrassing E.M.

25It was formally admitted at trial that the accused’s parenting time with E.M. was governed by a series of family court orders:

a. On June 17, 2014, Keast J. ordered that the accused would have access to E.M. at the supervised access center; frequency and duration of access would be subject to the center’s protocols, though one two-hour visit per week would be preferable;

b. On May 8, 2015, Guay J. ordered supervised access of two hours, and unsupervised access on Sunday afternoons every second weekend starting May 31, 2015;

c. On August 18, 2015, Kukurin J. ordered sole custody of E.M. to E.M.’s mother, with access for the accused on two Sundays per month starting September 2015;

d. On August 30, 2017, Serre J. ordered access by the accused to E.M. every second weekend (Friday to Sunday) starting September 8, 2017;

e. On January 11, 2018, Buttazzoni J. renewed the August 30, 2017 order, starting from January 12, 2018; and

f. On September 20, 2018, Keast J. ordered weekend access for the accused with E.M. every second weekend, one week each in July and August, Father’s Day, five days over the Christmas holiday, and any other agreed-upon access times.

26As E.M. remembered it, she first started seeing her father at 6 or 7 years old. At first their contact was supervised “at the CAS building.” That continued for a few months, and then the visits became merely supervised. Her mother and the accused were often in court, as her father was fighting for custody. After the institutional supervision was over, E.M. started going with her father to the park or her father’s house, but there were no sleepovers for a while. Then she began to stay over for a full weekend every second weekend. When she could first sleep over, there was at first no bedroom for her, so she stayed in a room where there was a pet snake, perhaps her brother’s bedroom. To E.M.’s recollection, Lisa, the accused’s girlfriend, was supposed to supervise, but she did not live at the accused’s home and was not there at night. In fact, “most days we went to Lisa’s house”, and left there after supper. Some days E.M. did not see Lisa at all. The accused told E.M. to say that Lisa was there if anyone asked.

27E.M. agreed that she had run away from her mother’s house in December 2021. She left through a window in the middle of the night because she was not happy about how things were going at her mother’s house. She left for personal reasons, not because her mother was going to impose house rules on her. The CAS became involved and placed E.M. with the accused for two weeks. Then she went to her grandparents’ home and refused to go back to her father’s home until December 2022 after the hospital. For 2022 she was either with her grandparents or at H.D.’s home.

28E.M. sometimes snuck out of her grandparents’ home. She did not smoke marijuana there or around their house because she did not want to get caught out coming home high. She let her grandparents know when she was going to stay with H.D. E.M. agreed that she was with H.D. and two boys when they stole from H.D.’s grandfather “Norm” and took his car. But Norm caught them. E.M. ran off once when D.D. and S.D. were going to consequence her. E.M. denied speaking with H.D. about making something up about Norm so that they could get away with it.

29E.M. remembered her first time with the accused being supervised in a building; E.M. presumed that it was the CAS supervising. At the time E.M. did not know the accused very well. From there contact went to supervision by the accused’s girlfriend and then contact was unsupervised. According to the court orders, supervised access center visits would have begun when E.M. was 6 years old, and supervision by the accused’s girlfriend and then unsupervised parenting when E.M. was 7. E.M. described living the bulk of the time at her grandparents’ home, if she was not at her mother’s.

Incidents described by E.M.

30E.M. described that on the night of a sleepover in the fall or summer at the accused’s house on Valleyview Road when she was 7 years old, she was in bed and the accused was watching television. E.M. was wearing only pink two-piece pajamas with sheep on them, and no underwear. The accused’s girlfriend was supposed to supervise, but she was not there.

31The accused came into the room and looked to see if E.M. was asleep. E.M. froze. The accused took off the blanket and put his hands down her pants and played with her vagina, moving it around for about five minutes. E.M. initially told police that the accused put his finger inside her, but she corrected that at the preliminary inquiry; he did not put his finger in her. He then pulled up her pants and kissed her vagina before kissing her goodnight on her forehead. He then left the room. Nothing was said by them during this incident or about it afterwards. E.M. felt disgusted and confused. This was her father, whom she had just met.

32E.M. also testified about incidents in which she claimed that the accused had put a camera in the bathroom of the home E.M. was visiting which recorded E.M. using the bathroom. As this claim was not the subject of a count on the indictment and was not the subject of an admissibility application by the Crown as bad character evidence, I have only considered this evidence for its use in the cross-examination of E.M., as requested by the defence.

33E.M. said that when she was 10 years old, and visiting the accused every second weekend, the accused claimed that the toilet was broken and went into the bathroom to fix it before E.M. used it. Twice that weekend, E.M. observed a phone recording her using the toilet, obscured behind some shampoo bottles on the bathtub. In her statement to police, E.M. had described that this happened once when she was 10 and once when she was 11 years old. She told police that she knew she was being recorded, “every time I had to go pee.” E.M. explained that she probably meant that she was 10 or 11 years old, and that she had to go twice and noticed the phone on the second occasion.

34E.M. described incidents in the accused’s third home on Emily Street in Hanmer when she was between 10 and 12, and maybe even 13. She visited there every second weekend. She and the accused would go the basement and watch a movie together. The accused would proceed to give her a massage and run his hand on or scratch her back, and rub her legs, “butt”, and vagina. E.M. commented: “it was not a massage; it was very inappropriate.” The accused touched close to her vagina or did touch her vagina, sometimes above and sometimes under her clothes. She sometimes wore tight shorts, which gave him easier access to slide a finger under her clothes. The accused would sit on the edge of the couch, and E.M. lay on the couch on her side or stomach, pretending to be asleep. E.M. was too shy to say anything, but she would “shrug over”, which seems to have ended the incidents. Neither of them said anything during these incidents.

35E.M. described that these “massages” happened “all the time”, though she specifically stated that such conduct happened five times. She testified that she said five as an approximation, because it happened often. She was not sure but stated that the accused put his hands on her vagina under her shorts three times. To police, E.M. stated that when she was 12 or 13 years old, the accused put his fingers in her, exploring. It was around 9 to 10 p.m. in an evening in early December, late November, and late February. E.M. explained that her memory was fresher when she spoke to police, and that she derived the dates from the presence of snow.

36At a meeting in April 2025, E.M. disclosed to the Assistant Crown Attorney with whom she was meeting that she thought the massage incidents happened in the basement of the second home.

37E.M. described similar “massage” touching taking place in the newly built garage at the accused’s home (apparently the Hanmer home on Emily Street that was visited by H.D. in December 2022). Once or twice, what began as a massage moved on to the accused putting his fingers under E.M.’s clothes.

38At the Emily Street house, E.M. had her own bedroom on the main floor, but she slept in the garage, mostly on a mattress up above the garage space. There was also a “ripped up” grey couch beneath the space with the mattress. She only slept in the garage once or twice after she was picked up from the hospital in December 2022.

39E.M. described a single incident in a bedroom when “I must have been 12.” This was around the same time as the basement incidents, in the same house. The accused came into E.M.’s bedroom, rubbed her back, got close to her vagina and rubbed her above her clothing for about 30 seconds. Then he stopped, tucked E.M. in and walked out. Nothing was said. As “Lisa” was living there, she might have been in the house, though E.M. did not have a memory of her being there on that occasion. She told police that Lisa was in the next room, and that she was 13 at the time.

40One last incident occurred on the couch in the garage shortly before E.M. left the accused’s house one night in December 2022. The accused felt around E.M.’s vagina for two or three minutes over her clothing.

41E.M. was confronted in cross-examination with her comments in Exh. 1, responding to H.D.’s disclosure to her. She told her friend that the same thing had happened to her at 8 years old. It was pointed out to her that this was different from the age of 7 that she had given in her evidence at trial. E.M. explained that she meant it started when she was about 8. She “wasn’t thinking about exact details of what, when, where” when she was talking to H.D. Just so, E.M. explained that she told H.D. things happened to her whenever she slept in the garage because she was speaking in generalities to a friend, and not to police. I have not used the contents of Exh. 1 for any purpose other than considering E.M.’s credibility.

Other evidence by E.M.

42Following her magic mushroom incident in December 2022, E.M. returned to the house on Emily Street from the hospital and stayed a “couple” days with the accused. H.D. came and slept over the second day after E.M. came there, following a rest day for E.M. They slept in the garage because that was just where they stayed. The accused’s girlfriend was in the house. E.M. and H.D. had an argument the next morning and H.D. left.

43The accused stayed in the garage that night, and E.M. saw him at bedtime and in the morning. E.M. told police that that was her first night in the garage after it had burnt down, but she testified that she had slept in the garage the night she got home from the hospital also. E.M., H.D., and the accused smoked “weed” and watched television the night H.D. was over. Smoking weed was something E.M. did every few nights when at the accused’s home. He provided the marijuana. Then E.M. went to bed “upstairs” in the garage, while H.D. was still downstairs. Apparently, the accused did not approve of E.M.’s cocaine use and sent her a picture of an almost empty bag of cocaine that he had found in her possessions.

44E.M. told H.D. what had happened to her after H.D. had told her on Snapchat what she had experienced. E.M. claimed also to have told H.D. about being “sexually assaulted” when she was younger but did not think she went into detail about it then. She told her counsellor at “Compass” about it, but appears to have misremembered her counsellor’s name, because Compass had no record of the counsellor named by E.M. being employed there. E.M. was still at the accused’s house when she disclosed the message in Exh. 1 to H.D., but that was the night she left there and went to H.D.’s house, where she stayed for about a week. She was with H.D.’s family for Christmas. As D.D. and S.D. were strict with the girls, and the accused had warned H.D.’s parents about E.M.’s cocaine use, E.M. and H.D. did not do any cocaine there. They continued to use marijuana, when they could get it.

45As the end of the holidays approached, H.D.’s parents D.D. and S.D. called the girls down and told them that E.M. had to go home. H.D. and E.M. told D.D. and S.D. about what the accused had done to them. D.D. and S.D. did not believe the girls and S.D. had accused them of making it up. Although S.D. had directed the girls to be apart that night, E.M. went to H.D.’s room and talked to her; they slept that night in H.D.’s room. The next morning, H.D. and E.M. called police.

46E.M. told her mother that three incidents had happened with the accused. E.M. explained that the accused sexually assaulted her. She described how the accused had slid his hand up her pajama pants after her mother asked. E.M. did not remember talking about more incidents with her mother.

47On January 3, E.M. went to her grandparents’ home and told her aunt and grandparents what had happened and went to the police station to give a statement. In cross-examination, E.M. stated that after Christmas 2022 she sent the accused texts to try to get him to admit what he had done, to feel validated. She may have lied to him about where she was. She did not remember the accused saying that he would cut off her cell phone. E.M. thought that the accused only texted E.M.’s mother that E.M. was out of control after she told him that she was going to the police. She denied having spoken with H.D. about the allegations since speaking to the police but admitted that by that time they had already spoken on occasion about what had happened or how they felt about it.

H.D.’s disclosure to E.M.

48E.M. testified that H.D. had told her when they were 11 or 12 that S.D. had once touched her breast in the shower. Apparently sometime in 2023 E.M. told that to her mother “in confidence.” E.M. knew that H.D. did not want to talk about it. When cross-examined, E.M. denied telling her mother so that H.D. could leave home and live with her, and appeared honestly shocked by the suggestion (“What? No!”). CAS worker Stephanie Santerre had talked to E.M. about it. E.M. knew that she was not supposed to tell anyone: “H.D. told me with trust.”

49E.M. did not think that she met with police about it. When asked if she ever told anyone it did not happen, E.M. answered: “I told them to keep it out of this; it wasn’t mine to tell.” She did not remember to whom she had said this. E.M. was asked by someone if this happened and she candidly stated, “I told what I was told. I should not have put her business out there.” E.M. did not want to get involved with the CAS or with police. She did not know if her mother spoke with police about it. H.D. asked E.M. if she had gone to the CAS, and E.M. told her that she did not tell anyone. She denied telling H.D. that she made it up so that she and H.D. could live together.

D.D.’s evidence

50D.D. is H.D.’s mother. She described that H.D. was E.M.’s best friend for a “couple of years.” E.M. was more a leader in the relationship and H.D. more a follower. E.M. was “not great” with house rules.

51E.M. came and stayed with them in a spare room for a couple of weeks in October and November 2022. An incident happened with her father Norm about which D.D. called the police and made a report. D.D. imposed a curfew on the girls after that, and they stuck to it. D.D. also found white powder in a line on a tray among E.M.’s things. E.M. claimed that it was Tylenol. D.D. tried to discourage E.M. from cocaine use. The girls sometimes skipped school. D.D. “had a feeling” that H.D. was using cocaine. H.D. admitted that the boys that she and E.M. had been with sold fentanyl, cocaine, and marijuana.

52In December 2022, E.M. stayed over at their house for Christmas. In terms of house rules, D.D. insisted on knowing where the girls were, and they had a 9 or 10 p.m. curfew. D.D. did not appear overly concerned about the girls; they had the behavioural issues that teenaged girls had. They may have consumed alcohol.

53In January 2023, D.D. asked to speak with E.M. She told E.M. that she had to go back to her dad’s house. E.M. said that she did not want to and that there was something that she wanted to talk to D.D. about, but that H.D. “has to tell you why I have to stay.” D.D. called H.D. down, and she told D.D. that when H.D. had slept over at the accused’s house, she woke up and someone was touching her and kissing her. D.D. thought that this was a tactic to get E.M. to stay. She called E.M. down and E.M. told her that it had happened to her also. D.D. denied that the girls had a chance to speak between their disclosures.

54D.D. and S.D. had not believed the girls at first. S.D. said, “Girls, this is enough!” He was upset. D.D. did not recall hearing any comment about the girls making up a story about Norm. D.D. and S.D. sent the girls upstairs and told them to stay in separate rooms, and D.D. believed that they did stay in separate rooms. D.D. spoke with them again the next day. After the matter was reported to police E.M. was not allowed at their house, and H.D. was grounded.

55Concerning the allegation about S.D., D.D. spoke with the CAS on the phone one night and D.D. was told to take the children to a different place. Then the CAS came the following day. D.D. and S.D. heard what E.M. had told her mother. H.D. denied it right away. H.D. later told D.D. that E.M. had admitted lying about it. D.D. did not remember H.D. saying that E.M. had made it up so that H.D. and E.M. could live together. She did not recall herself or H.D. going to the police station regarding that incident. They only dealt with the CAS.

Burden of proof and assessment of evidence

Burden of proof

56The accused began this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27.

Credibility and reliability

57In this case, the issue that directly confronts the court is the credibility and reliability of the evidence of the two complainants.

58In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 11-15):

11 …. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122], at p. 134….

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G.(M.)… (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G.(M.), at p. 354.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G.(M.), at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31.

15 …[P]rior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161…, at paras. 32, 35; R. v. Ay, 1994 CanLII 8749 (BC CA), [1994] 93 C.C.C. (3d) 456, (C.A.), …at p. 471 C.C.C. [some citations abbreviated or eliminated]

59The complainants in this case are older children, but still children. Flaws in the evidence of children, such as contradictions or inconsistencies, should be assessed with an understanding that the witness is a child. To assess the evidence of children as though considering the evidence of a “reasonable adult” is not necessarily appropriate: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48.

60While inconsistencies on minor matters or matters of detail are normal and are to be expected, a trial judge must be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral,” and thus avoid the duty to address and weigh them: R. v. D.H., 2016 ONCA 569, at paras. 37, 50, 69-71; R. v. Vuradin, 2013 SCC 38, at para. 17. An issue for assessment in the analysis and weighing of inconsistencies is whether the “core” of the allegations remains intact: R. v. J.G., 2022 ONCA 452, at para. 6; R. v. R.A., 2017 ONCA 714, at para. 46; R. v. Roy, 2017 ONCA 30, at para. 14, and R. v. Barua, 2014 ONCA 34, at paras. 7-8.

61It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate but related issue. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

62It is a truism that different people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events. In particular, the authorities teach that courts must decide sexual assault cases “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: R. v. Shearing, 2002 SCC 58, at para. 121.

Analysis

H.D.’s evidence and the charges involving her

63H.D. testified about a single incident that she claimed occurred one evening in December 2022 when she slept over at the accused’s house to visit with her friend E.M. at some point after E.M.’s return there from the hospital.

64Overall, I found H.D. to be a credible witness. She testified in a straightforward manner about the incident and explained clearly the surrounding circumstances of her stay at the accused’s home, how she and E.M. ended up in the garage, that she originally went to sleep in the loft area with E.M. before being driven out of there by wood chips that she found uncomfortable. H.D.’s description of going down to sleep on the grey couch in the room below, on which the accused was himself sleeping was explained in compelling detail. H.D. described being awakened in the night by the accused, who asked her to reposition herself to get her feet out of his face.

65The description of the incident, in its essence, was simple. H.D. awoke to find the accused behind her, with his arms around her. One of his hands was going down her pants to her pelvis and vagina, and the other was on her breast. She froze briefly, before moving around a bit to attempt to convince the accused to stop by appearing to be in the process of waking. When that did not work, she rolled onto her stomach, which did stop the accused from touching her.

66In cross-examination, H.D. was taken to her statement to police, in which she had been repeatedly asked to describe the incident. I am not at all troubled by H.D.’s apparent confusion about which hand touched what part of her person, or that she mentioned “freezing” in at least one iteration of her description and not in others. Which hand did what on a single occasion is not of huge moment in the circumstances of this happening to her as a child. I do not find H.D.’s claim at trial that the touching took place simultaneously rather than sequentially to involve any significant inconsistency from what she described in her statement to police.

67Nor do I agree with the defence that H.D. sought to minimize her drug use. She admitted to experimenting and using drugs, and I do not find it useful to determine frequency of drug use through the conflicting memories and observations of E.M. and H.D. If H.D. ever used cocaine, she did not use it often. Nor do I find that H.D. somehow “colluded” with E.M. to invent her claim that the accused had touched her as she described. While I accept that H.D. and E.M. during their friendship were prepared to lie for each other in small ways that freed each other from parental control, I reject the suggestion that H.D., the witness who testified before me, fabricated a false claim because of loyalty to E.M. I do not accept that H.D. and E.M. ever spoke of making up a story to implicate “Norm” to get out of trouble, a suggestion that both denied.

68I also reject any notion that H.D.’s agreement that this or that suggestion made to her by the defence was “possible”, or that she did not remember something offered in a question in cross-examination, results in the establishment of fact. Such answers provide space for alternative facts to find their way into the court’s assessment if other evidence is offered to fill the gaps created by those answers. But the accused, as was his right, adduced no evidence to add content to the voids.

69However, when it became clear that H.D. had told police that the accused moved her top aside and licked her nipple during the incident, but H.D. could neither recall that aspect of the incident occurring nor telling it to police, that is a significant inconsistency. And it was underscored by E.M.’s evidence that H.D. had offered that detail to her as well. The fact that the detail was important enough to H.D. to tell E.M. about it emphasizes the significance of that aspect of the event to H.D. Such an inconsistency now with her trial evidence cannot be ignored in the matrix of the incident that H.D. describes, and calls into question the reliability of the core of H.D.’s testimony. It causes me necessarily to have a reasonable doubt about the incident, even though I accept that something probably did happen to H.D. that night.

70Accordingly, I must find the accused not guilty of the two counts involving H.D.

E.M.’s evidence

71E.M. described many more incidents involving the accused than did H.D. The incidents, which she alleged had occurred many times, were claimed by her to have happened in the basement of one of the accused’s homes, in her bedroom at one or two of the accused’s homes, and apparently once in the garage of the accused’s Emily Street home, where the incident involving H.D. was alleged by H.D. to have occurred.

72E.M.’s testimony about these incidents was straightforward and described repetitive conduct by the accused of vaginal touching, mostly above, but on a few occasions below E.M.’s clothing. To police, E.M. mentioned digital penetration of her vagina by the accused. Oftentimes, the touching occurred as an extension of touchings that had started as non-criminal massages.

73E.M. stood up well to an extensive and probing cross-examination.

74E.M. did offer some inconsistencies between her trial evidence and her statement to police. In describing the uncharged bathroom recordings allegedly made of her by the accused, E.M. commented to police about the frequency of being recorded, that it happened, “every time I had to go pee.” This could seem to contradict her trial evidence that it happened twice on a single weekend. However, I have observed that even at trial E.M. could be less than careful with her manner of speech, as young persons often are, and I do not find that this inconsistency with what a younger E.M. told police detracts from my ability to believe E.M.’s testimony. Other than with respect to E.M.’s credibility and reliability, I have not considered the evidence about alleged bathroom recordings for any purpose.

75Although E.M. described to police digital penetration of her vagina by the accused, she denied it in her trial evidence. However, I take into account that E.M.’s vagina, both above and below her clothing, was the focus of the accused’s attention in E.M.’s account, that E.M. described many incidents of such touching, and few occasions of penetration. In those circumstances, this inconsistency is limited and does not affect the core of E.M.’s testimony.

76Given E.M.’s age at the time that the alleged vaginal touching by the accused commenced, and how long it continued, I am not troubled by her inability to recall whether it took place in the basement of one or another of the accused’s homes, or her exact age for a given incident. Failure to describe the incidents to her mother in great detail, or to give completely accurate details to H.D. when the complainants were younger or even in Exhibit 1 are of little importance as inconsistencies. Every complainant is different, and it would be improper to find that E.M.’s delayed or incomplete or slightly inaccurate disclosure to her mother or H.D. are indications of falsehood, or that descriptions given to a mother or a friend should resemble descriptions given during a police interview. In any case, I remind myself that details in Exh. 1, in the circumstances of this case, may only be used in assessing E.M.’s credibility and reliability, and I have otherwise disregarded its contents.

77Likewise, E.M.’s inability to state with exactitude the number of times that incidents occurred is not an issue that detracts from her credibility. She testified that incidents began when she was 7 years old and continued over time until she was 14. She was a child during the period of alleged abuse. The conduct that she described was repetitive. It is not at all surprising that the incidents form an unwavering line of abuse in her memory with little to differentiate among individual occurrences.

78I also do not accept that E.M.’s evidence should be found less compelling because of her admitted drug use. E.M. admitted that she used a variety of drugs and that she had become addicted to cocaine. The accused even found an empty baggy that probably had contained cocaine in E.M.’s possessions and showed a picture of the baggy to E.M. and quite possibly to H.D.’s parents. D.D. discovered what was most likely residue of a line of cocaine in the room E.M. was using. E.M.’s drug use may have caused her to hang around other drug users, such as her boyfriend, and to get involved in escapades such as stealing drugs and a vehicle from “Norm”, but I reject the suggestion that drug use caused her to imagine false allegations of sexual touching by the accused.

79Nor do I accept that E.M. deliberately fabricated false allegations about the accused.

80It has been suggested that E.M. made up her allegations so that she could stay with H.D. and not return to the accused’s home. I accept E.M.’s evidence that in December 2022 or January 2023, even after the magic mushroom incident at her grandparent’s home, E.M. would have been welcome back there once she left H.D.’s house. She had no reason to make a false claim about the accused to avoid living with him. Nor was there any reason to make up such a detail to escape consequences for being outed as using drugs. She did not escape those consequences, the most severe of which involved a talking-to by D.D.

81Nor does it make any sense that E.M. made false claims to avoid being subject to the accused’s rules. First, his rules were not so strict anyway. E.M. was not challenged on her testimony that the accused provided her with marijuana at his house. I also accept E.M.’s evidence that when the accused brought E.M. back to his home after her hospitalization in December 2022, he found E.M.’s magic mushroom misadventure amusing. Moreover, E.M. did not seem to have much difficulty getting away from the accused’s home when she wanted. As observed by E.M., the accused never cut off her cell phone service as a punishment; she continued to use her phone to try to get him to confess what he had done.

82For these same reasons, I also reject the submission that E.M. colluded with H.D. to fabricate a claim against the accused. The evidence is clear that H.D. and E.M. had many opportunities to speak to each other about what they claimed that the accused had done to them. But such conversations, though they might compromise the probative value of similarities in the complainants’ evidence, should the Crown have applied for such a use of their evidence cross-count, cause me no other concerns. The motivations suggested for collusion, as discussed above, are trivial and lack any compelling force.

83For the purpose of this case, I decline to delve deeply into any allegation that H.D. might have made to E.M. about S.D. long before the issue was disclosed by E.M. to her mother, and by her mother to the CAS. I am not even clear what that allegation might have involved or even whether E.M. clearly understood or accurately remembered what H.D. had told her.

84I am satisfied, however, that E.M. believed that H.D. had made such a disclosure to her, that E.M. told her mother about it in an unguarded moment, and that E.M. soon afterwards strongly regretted having done so. She believed that her closest friend H.D. had not wanted her secret shared and exposed. In that context, if E.M. made it known that H.D. did not want this thing talked about and exposed, as E.M. stated at trial, or even if she had chosen to claim she was never told this and gave some reason for making it up, which I do not find, I would consider that E.M. was just trying to undo a wrong that she had inflicted on her friend by her disclosure. No sort of “recantation” by E.M. of this disclosure would cause me to downgrade E.M.’s credibility in circumstances where she was trying to undo the mischief that her failure to keep a friend’s secret had caused.

The charges involving E.M.

85With respect to sexual assault pursuant to s. 271 of the Criminal Code (count 1 on the indictment), the essential elements include the intentional application of force to the complainant E.M. by the accused, without the complainant’s consent and with the accused knowing that she did not consent, in circumstances of a sexual nature.

86The essential elements of sexual interference under s. 151 of the Criminal Code (count 2 on the indictment) include that the accused have touched the complainant E.M., who was under the age of 16 years at the time, for a sexual purpose.

87I make the following findings, on the evidence in this case. Where I make findings, I make them beyond a reasonable doubt. Where I am unable to be satisfied beyond a reasonable doubt, I indicate it:

a. I find that on many occasions when E.M. was between the ages of 7 and 14, during the period set out in the indictment, the accused, her father, who was in a position of trust towards E.M. and knew her age, deliberately touched her vagina with his hand both above and below her clothing;

b. I find that the accused did this when he and E.M. were alone together in one or more homes of the accused, in her bedroom, in the basement, or at least once in the garage of the residence on Emily Street;

c. I find that incidents of such vaginal touching by the accused occurred at E.M.’s bedtime when she was in bed or when E.M. and the accused were together watching movies in the basement;

d. I find that on one occasion, perhaps the first time that the accused touched E.M. on the vagina, the accused came into the room E.M. was sleeping in, took down her pajama pants, manipulated her vagina for some extended period of time with his hand before pulling up her pants and kissing her vaginal area. That kiss itself is an unusual and compelling detail in E.M.’s testimony;

e. I find that oftentimes, incidents would start with the accused as massages of E.M. which progressed to the accused touching and rubbing E.M.’s vagina over her clothing or slipping a finger beneath her clothing to touch and rub E.M.’s vagina directly. The vaginal touching and rubbing was not simply momentary;

f. I find that the accused’s vaginal touching of E.M. on all occasions was intentional and was done on each occasion by the accused for a sexual purpose, and violated E.M.’s sense of sexual integrity;

g. I find that although at one time there was a family court order in place that the accused’s contact with E.M. was to be supervised, that supervisor was the accused’s partner, “Lisa”, who was not in fact always present to supervise on the premises; and

h. E.M. told police that the accused digitally penetrated her vagina on a few occasions, but her evidence to the court is not clear enough for me to make a finding about such touchings beyond a reasonable doubt. While such penetrative touchings possibly happened, I cannot be sure of them.

88On these findings, as E.M. was in law too young to consent to the accused’s touchings and applications of force to her vagina, as the accused knew, I find that both counts on the indictment in relation to E.M., sexual assault (Count 1) and sexual interference (Count 2), have been proved beyond a reasonable doubt, based on repeated vaginal touchings of E.M. by the accused, but without digital penetration.

Conclusion

89For the above reasons, the accused is found guilty on Counts 1 and 2 on the indictment. Counts 3 and 4 are dismissed.

The Honourable Mr. Justice A.D. Kurke