Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. D.A.
BEFORE: Rees J.
COUNSEL: M. Soucy, for the Crown J. Coulter, for D.A.
HEARD: April 7, 2026
Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code. These reasons have been anonymized and may be published.
An order has been made permitting the publication of these reasons pursuant to s. 278.95(1)(c) of the Criminal Code.
Reasons for Decision
Background
1On October 31, 2025, I found D.A. guilty of two counts of invitation to sexual touching, two counts of sexual interference, and two counts of sexual assault in relation to K.H.
2Sentencing submissions were set to be argued on February 6, 2026. The sentencing hearing was adjourned because D.A. brought an application to reopen the trial.
3D.A. seeks to reopen the trial based on the pre-sentence report prepared by a probation officer. The probation officer contacted K.H.’s mother, H.H., who provided information about the effect of the offences on K.H. This conversation was paraphrased and summarized in the pre-sentence report.
The evidence sought to be adduced
4In the pre-sentence report, H.H. is reported as having stated that:
She reported that the index offences have profoundly affected her daughter, who is now 10 years old. She stated that her daughter lost her “spark” as a result of the offences and began having angry outbursts, occasionally becoming physically aggressive toward her. She added that she became mature beyond her years and displayed sexualized behaviors, including being caught watching pornography. She further reported that her daughter developed a fear of sleeping and, approximately nine months ago, became suicidal… [Emphasis added]
5Following the adjournment of the sentencing, the defence made additional inquiries of H.H. through the Crown, who relayed them through Child and Family Services Ottawa.
6In response, H.H. explained that the incident occurred about eight months after K.H. disclosed the sexual abuse to H.H., that is sometime in February 2024. (To situate this on the timeline, this is after K.H. gave her police interview, which was admitted under s. 715.1 of the Criminal Code at trial, but before trial.) The discovery occurred in her new apartment. K.H. was in her room and fell asleep. H.H. picked up K.H.’s tablet, which did not lock, and saw Pornhub or Youporn open but not clicked passed the age verification pop up.
7There is no evidence that K.H. accessed pornography before or after this incident. To the contrary, H.H. states that she knows that this has not happened before. H.H. explained that K.H.’s tablets are all connected to a software application on H.H.’s phone that monitors how much time K.H. spends on her tablets and the websites she goes on. H.H. has monitored K.H.’s tablets with this software application since she was a child, so she knows that she has never looked at pornography before.
8In response to the defence questions, H.H. also related that she and K.H. had a conversation the day after she discovered that K.H. has tried to visit a porn site. During this conversation, K.H. explained that she was not sure why she went to the porn site. They did not discuss it again until after trial, when H.H. was able to ask more questions. At that point, K.H. explained that it was just something she thought was normal to watch due to what she was shown by D.A. But now that she is older, she knows that it is for adults and that it’s disgusting.
Section 276 application
9The defence and Crown agree that the proposed fresh evidence is evidence of other sexual activity to which ss. 276 and 278.93 apply. I must therefore consider the defence’s s. 276 application before proceeding with the application to reopen.
10The procedure governing a defence application under s. 276 is set out in ss. 278.93 and 278.94. The Supreme Court of Canada elaborated the framework in R. v. J.J., 2022 SCC 28.
11The objectives of the s. 276 regime are to: (a) protect the integrity of the trial by excluding irrelevant and misleading evidence; (b) protect the accused’s right to a fair trial; and (c) protect the security and privacy of complainants, thereby encouraging the reporting of sexual offences: R. v. Barton, 2019 SCC 33 at para. 74. The Supreme Court of Canada reminded us in Barton that trial judges have an important gatekeeping function in relation to evidence of a complainant’s other sexual activity to ensure that the rights of the accused and complainant are protected and balanced: at para. 68.
12At Stage One, I must determine whether the proposed evidence is capable of being admissible. This is a relatively low threshold. If there is a viable argument that the evidence is admissible, the defence application should move to Stage Two. Still, many of the same factors are relevant to the first and second stages of the application: R. v. John, 2019 ONSC 3602, at paras. 19-20.
13Subsection 276(1) categorically excludes evidence of the complainant’s other sexual activity for drawing twin-myth inferences. The twin myths are that because of a complainant’s sexual history, the complainant is more likely to have consented to the sexual activity at issue or is less worthy of belief as a witness.
14Where an accused seeks to introduce other sexual activity evidence, the evidence is presumptively inadmissible unless the accused satisfies the four criteria in s. 276(2): R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 40.
15Under s. 276(2), the accused must demonstrate that the evidence:
a. is not being used to support twin-myth reasoning;
b. is of specific instances of sexual activity;
c. is relevant to an issue at trial; and
d. has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
16The Supreme Court has explained that “the requirement of ‘significant probative value’ serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the ‘proper administration of justice’: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 41. Subsection 276(3) requires judges to consider several factors to determine whether these criteria are met.
Application to this case
17There is no dispute that D.A. has satisfied the procedural requirements under s. 278.93(1). The application is in the proper form and has been properly served and filed.
18The only question before me at Stage One is whether, having regard to s. 276(2), the proposed evidence is capable of being admissible.
19The defence must identify the evidence and its purpose with sufficient precision to permit the court to properly apply s. 276(2): R v. Goldfinch, at para. 40. Here, the defence contends that the evidence is relevant to two issues:
a. The evidence about K.H. attempting to access pornography could provide an alternative explanation for K.H.’s knowledge of sexual activity; and
b. The evidence about K.H. attempting to access pornography between the initial disclosure and her evidence at trial could explain K.H.’s evidence that D.A. used his phone to put K.H. on a website with men, which K.H. did not disclose in her police interview.
20The proposed evidence would not be led to serve a twin myth inference.
21The next question is whether the proposed evidence is relevant in the context of the defence application to reopen the trial post-verdict. To be relevant, evidence need only have some tendency, as a matter of common sense and human experience, to make the existence or non-existence of a material fact more or less likely: R v. S.(L.), 2017 ONCA 685, at para. 89.
22In my view, the proposed fresh evidence is not relevant to an alternative explanation for either of the specific grounds advanced by the deference.
23To be clear, the proposed evidence is that K.H. attempted to access a porn site on a single occasion after she gave her police interview but before trial. There is no evidence that K.H. clicked past the age verification pop up. As clarified by H.H. in response to defence questions, there is no evidence that K.H. independently viewed pornography. I add “independently” because there was evidence at trial, which I accepted, that D.A. exposed K.H. to pornography in the bathroom while D.A. had K.H. masturbate him.
First ground of proposed relevance
24The proposed evidence does not make it more likely that there is an alternative explanation for K.H.’s knowledge of sexual activity.
25The proposed evidence must be considered in its proper context. At paras. 147 of my Reasons for Judgment at trial, I responded to a defence submission that children are more aware of sexual activity today than they were at one time. I found that K.H.’s knowledge of telling details of the sexual abuse was inconsistent with what an eight- and ten-year-old would know about the sexual activity she described.
26At para. 146, I set out highly believable and telling details of the sexual activity that K.H. testified to. For ease of reference, I reproduce those details here:
a. How her hand and arm would hurt and grow tired from masturbating D.A.
b. How he would watch pornography of women on his phone in the bathroom while she masturbated him, facts consistent with D.A.’s own evidence regarding what he watched when he masturbated and where he did so in the home.
c. How white stuff came out of his penis when she masturbated him and after he had penetrated her anally. How this white stuff was like “like spit, but its not”.
d. How her behind would really hurt after he penetrated her anally, so much so that she would cry.
e. That she would wipe her behind with toilet paper afterwards to clean herself up. On other occasions, D.A. would make her take a shower.
f. That when K.H. asked D.A. why he was touching her sexually, he stated that “It’s for the future. It’s for when you’re older.”
27The proposed new evidence does not logically provide an alternative explanation for these details. There is no evidence that K.H. independently viewed pornography. Moreover, K.H. provided these details in her police interview several months before she tried to access a porn site.
Second ground of proposed relevance
28Nor does the proposed evidence provide an alternative explanation for D.A. having used his phone to put K.H. on a website with men.
29In this respect, it is important to recall the evidence K.H. disclosed for the first time during re-examination at trial, at para. 91-94:
[91] K.H. testified on re-examination that she specifically recalled that on the Monday, D.A. used his phone to put her on a website with a bunch of old men, who talked to her, and it was “really disgusting” and made her “really uncomfortable”. K.H. explained that D.A. would do that once in a while but not all the time. She explained that he put her on the phone with the old men before the bathroom sexual activity.
[92] When the Crown explored this further, K.H. testified that she was lying on her bed in her bedroom. D.A. came into her room. He put his phone in her face and there were really old men and younger men on his phone. D.A. swiped. The men on the phone were talking. They said “hi” to her and asked her to do “weird stuff”. She explained that they asked her to take her shirt off and do stuff. K.H. described her interaction with the men on D.A.’s phone as “really creepy and uncomfortable” and she was “really grossed out”.
[93] K.H. testified that she reacted by starting to cry and she did not want to be on the website with the old men. She told D.A. to stop, but he did not take his phone away. She went to the bathroom. D.A. followed her to the bathroom with his phone and stood there with his phone with the “weird people on it” while she was going to the toilet. D.A. kept putting his phone where her face was.
[94] K.H. testified that she then returned to her room and she thinks D.A. stopped, but she could not recall. K.H. testified that what happened with the old men only happened once.
30Again, the proposed fresh evidence does not logically support the inference that there is an alternative explanation for K.H.’s testimony in this regard. The defence is trying to bridge a logical gap by assuming that the proposed evidence demonstrates that K.H. independently viewed pornography. That is not the proposed evidence before me. Nor does the proposed evidence support the inference that K.H. independently had a sexualized interaction on a website with men who asked her to take off her shirt and do “weird stuff”.
31Because the proposed evidence lacks relevance, it is not capable of being admissible. The defence’s s. 276 application is thus dismissed.
Application to reopen
32I add this. Even had I ultimately found the proposed evidence admissible, I would not have reopened the trial. This is because the proposed evidence neither bears on a potentially decisive issue at trial nor could it reasonably be expected to affect the verdict: Palmer v The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; R v. Truscott, 2007 ONCA 575, at para. 92.
33First, the details referenced at para. 146 of my Reasons for Judgment are not details that K.H. could have learned from independently watching pornography, with the possible exception of K.H.’s description of semen. The details were also disclosed to police before she tried to access a porn site. When considered in the context of the evidence as a whole, the proposed fresh evidence cannot reasonably be expected to affect the verdict.
34Second, even had the proposed evidence shown that K.H. had independently viewed pornography—which is not the case—it would not have raised a reasonable doubt that D.A. used his phone to expose K.H. to men who asked her to take her shirt off and do stuff. This is because of the specific and compelling details K.H. provided regarding this particular interaction with D.A. and the context in which the interaction occurred.
Justice Owen Rees
Date: April 13, 2026