R. v. P., C., 2026 ONSC 3125

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. P., C., 2026 ONSC 3125

OSHAWA COURT FILE NO.: CR-25-00016776-0000

DATE: 2026-05-29

BETWEEN:

HIS MAJESTY THE KING

– and –

C. P.

Defendant

Julie O’Connor, for the Crown

Glen Henderson, Counsel, for the Defendant

HEARD: May 25, 26, 27, and 28, 2026

J. SPEYER J.

REASONS FOR JUDGMENT

A. Introduction

1The defendant is charged with four counts – one each of sexual assault, sexual interference, invitation to sexual touching, and one count of making sexually explicit material available to a child for the purpose of facilitating the offence of sexual assault. He has pleaded not guilty to all the charges. The charges allege that he sexually abused his daughter, A, during a single weekend between September 1, 2018, and August 31, 2020.

2Three witnesses testified during this short trial: A., her mother., S., and the defendant. The defendant testified that the acts described by A. did not occur. The only direct evidence as to what did or did not happen was provided by A. and the defendant.

3At the conclusion of the evidence, Crown counsel invited me to find the defendant not guilty of Count 4 because there was no evidence that the alleged making of sexually explicit material available to A. was for the purpose of facilitating the offence of sexual assault. I agree and find the defendant not guilty of Count 4 and will not address that count further in these reasons.

B. Undisputed Background Facts

4The contextual facts of this case are not in dispute. The evidence of A., S., and the defendant is largely consistent as to the background facts. A summary of those facts will serve to facilitate understanding of the disputed facts.

5The defendant and S. started a relationship when they were both still in high school and living with their respective parents. A. was born in January of 2012, and after she was born, they lived for a time with the defendant’s parents and for a time with S.’s parents. A. is their only child.

6The defendant and S. separated in the summer of 2013, when A. was about a year and a half old. Until A. started junior kindergarten, her parents shared parenting time on an almost equal basis. When A. started school, her primary residence was with her mother, and the defendant’s parenting time was reduced to three weekends per month. That arrangement was the subject of a court order and continued until the summer of 2023.

7A.’s relationship with her father became strained because of his alcohol consumption. She considered him to be an alcoholic. A.’s appreciation, as a child, of her father’s alcohol problem was well-founded. The defendant now acknowledges that alcohol has been a problem for him for a long time. He was convicted in 2016 of two counts of drinking and driving. He entered a residential treatment program. He has participated in various counselling programs since then.

8A. also found it difficult to cope with her father’s successive relationships with several women. She preferred that the time she spent with him be spent at his parents’ home, rather than at the homes of his girlfriends, and he disregarded her wishes about that.

9Several events in the summer of 2023 culminated in A.’s decision that she no longer wanted to see her father. On one occasion, he arrived at her mother’s home to pick her up, seated in the driver’s seat of his vehicle, with his girlfriend and her two children in the car. He had been drinking, a fact that he admitted in his evidence. There was a significant dispute between him and S., and the defendant left without A. in the vehicle then driven by his girlfriend. On a second occasion, after an awkward ten-minute meeting at a park, supervised by S., S. contacted the police and reported that the defendant was drinking and driving. She followed the defendant’s vehicle with her vehicle, with A. in her vehicle. A. watched as the police arrived, investigated the defendant, and left without taking further action, permitting the defendant to drive away.

10On two occasions, the defendant did not show up for pre-arranged visits with A. She did not accept the reasons he provided for that. In text messages that are heart-breaking to read, sent by 11 year old A. in September, 2023, she explains to her father that she loves him and really wanted to see him, but felt that he did not care to see her because he did not show up to see her as arranged, and that she did not want to live her life that way because he broke her heart. She also explained that she did not want to risk her life by being in a car with him. He responded by blaming others for causing A. to feel as she did.

11A. saw the defendant only a few times during the fall of 2023. It is undisputed that by the end of that year, she did not want to see him anymore.

12In December 2023, the defendant brought a motion in family court, seeking to have S. found in contempt, related, it appears, to her failure to enforce the family court order that the defendant spend time with A. on three weekends per month. The contempt motion was scheduled to be heard on January 18, 2024.

13A. disclosed the allegations of sexual assault to her mother on January 14, 2024. Her mother immediately notified the Children’s Aid Society. A. provided a video-recorded statement to the police on January 16, 2024.

C. The Governing Legal Principles

14Before I turn to the evidence, I wish to say a few things about the law that governs my decision.

(a) The presumption of innocence and the burden of proof

15My decision is not about whose evidence I prefer. My decision may not be based on a choice between the evidence of the witnesses called by the Crown and the evidence of the defendant. Rather, my decision must be based on the principle that the crown is required to prove the allegations beyond a reasonable doubt. This principle governs all criminal trials.

16The defendant is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.

17The defendant started this trial presumed to be innocent of the charges against him. The presumption of innocence is only defeated if and when Crown counsel proves every essential element of an offence beyond a reasonable doubt.

18The obligation to prove the defendant’s guilt rests with the Crown. The defendant does not have to prove that he is not guilty.

19It is not enough for me to believe that the defendant is probably or likely guilty. In those circumstances, I must find him not guilty, because the Crown would have failed to prove his guilt beyond a reasonable doubt.

20The defendant testified that he did not do that which he is alleged to have done. If I believe his evidence that he did not commit the offences, I must find him not guilty.

21Even if I do not believe the defendant’s evidence that he did not commit the offences, if it leaves me with a reasonable doubt that he did what is alleged, I must find him not guilty because his guilt would not have been proven beyond a reasonable doubt.

22Even if the defendant’s evidence does not leave me with a reasonable doubt about whether he committed the offences, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

(b) The assessment of evidence of children

23When children testify, their evidence is not to be assessed in the same manner as the evidence of adults. Children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding, and ability to communicate: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 24-26; R. v. P.S., 2019 ONCA 637 at paras. 23-26.

24Children do not perceive the world in the same way as adults. Children do not experience the world in the same way as adults. As noted by Wilson J. in R. v. B. (G.), at p. 55, “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”

25While the evidence of children must be assessed in the context of their age and maturity, this does not lessen the burden of proof on the Crown. Proof beyond a reasonable doubt remains the standard for conviction, even though the complainant is young.

D. The evidence of the defendant

26The defendant testified and denied the allegations.

27There was nothing inherently implausible or incredible about the defendant’s evidence. The Crown does not suggest that his denials, taken alone, contained any obvious flaws or were problematic. The Crown urges me to reject his evidence based on the strength of the Crown’s case in accordance with the decision of the Court of Appeal in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 OAC 37, 215 CCC (3d), leave to appeal denied 2007 CanLII 16771 (SCC), at para. 53:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

28The question to be decided then is whether I can accept and rely on A.’s evidence to reject the defendant’s evidence such that it does not leave me with a reasonable doubt, and such that it proves the allegations beyond a reasonable doubt.

E. The evidence of A.

29A. provided a videorecorded statement to the police on January 16, 2024. Her statement was admitted in evidence pursuant to section 715.1 of the Criminal Code. In her statement, A. described the acts complained of and she adopted the contents of her statement when she testified. She confirmed that she was trying to be truthful when she spoke to the police officer. Defence counsel did not oppose the admissibility of the videorecorded statement. The admission of the videorecording in evidence would not interfere with the proper administration of justice. Therefore, the videorecorded statement was admitted in evidence, and forms part of A.’s trial evidence.

30A. is 14 years old and in grade 8.

31A. was 11 years old and in grade 6 on January 16, 2024, when she provided her video-recorded statement to the police. At the outset of her statement, A. was told that the most important rule was that she needed to tell the truth and that people can get in trouble with the police if they lie to the police. A. promised to tell the truth.

32The questions asked of A. during her police interview were simple and open-ended. They were not of a leading nature. The officer explained to A. that she was required to tell the truth. The officer explained to A. that she was not required to provide an answer just because a question was asked, and that she should not guess about things. Rather, unless she knew something to be “a hundred percent the truth from your memory” she should tell that officer that she did not know or does not remember.

33A. told officer Kavanaugh that when she was five or six years old, in grade one or two, during a weekend that she was with her father at his parents’ house, he sexually abused her on two successive nights.

34On the first night, when she was laying down in her room or in his bedroom watching YouTube on her iPad, he put his head under her blanket and licked her vagina. When asked to provide as much detail as she could, A. said that she was either in her father’s room or her room, that she thinks she was in his room first and then got tired and went to her room but could not sleep and was watching YouTube Kids as she lay on the floor in a corner, covered by a blanket. Then her dad came into her room, stood there for a second, shut the door, went under her blanket, pulled her pants down to her ankles, and started licking her vagina while she continued to watch her show on her iPad. Although she could not see him, because of the way the blanket was positioned, she knew he was licking her vagina because she felt it, and knew it was his tongue because it was wet and soggy. He dad then stopped, laid down next to her, and fell asleep on the floor. He did not say anything during this interaction. Her grandparents were not home, but when they came back from a party her grandfather came into her room, saw the defendant asleep beside A. and asked “what is your dad doing here”, to which A. responded “I don’t know”. Her grandfather then left the room, and A. fell asleep. When she woke up the next morning, her father was not in her room.

35A. told officer Kavanaugh that when she got up the following day, she went downstairs and her dad was there, cooking breakfast. She went to the couch and watched YouTube on the television and ate her breakfast on the couch. Her father came and sat right next to her and showed her a video on his phone of two people, a man and a woman, having sex outside in the middle of a backyard. They appeared to be in their thirties. A. watched the video for about five seconds. Then her father got up and went upstairs, while A. continued to watch television.

36A. told the officer that later that day, when it was night, she went into her father’s room. He was sleeping and she got onto the bed beside him. She was closest to the wall, and he was closest to the floor. A. was watching YouTube on her iPad. Her father woke up, asked her to “hold this” and touched her leg with his penis after pulling his boxers down a bit. A. then held his penis in her hand. At the time, she did not know what it was. She looked under the blanket and saw something hairy. It felt warm. Her father had fallen asleep again and woke up, said “stop” and asked her what she was doing. She said that he had asked her to hold it. He responded that he did not. He turned to the side, and A. left and went to her room, where she fell asleep.

37A. returned to her mother’s house the next day. She told officer Kavanaugh that she did not tell her mother what happened because she was little and did not know what was going on. She did not understand until she was older that what he did was wrong. Her father did not do it again. She explained that she still wanted to see her dad and knew that if she told someone that she would stop seeing him and did not really think of telling anyone. However, now that her mother was going to court with her father, she thought she should tell her mother. A. told officer Kavanaugh that they were going to court “on the 18th”, two days later.

38A. told officer Kavanaugh that she told her mother what happened because her mother told her that court was on the 18th, and A. thought it would be good to tell her mother what happened because she wanted it to come out and she did not want to keep it in any longer.

39In the videorecording, A. appears much younger than she did at trial, which is not surprising given her age and the time between the two events. In the videorecording, she appears candid, spontaneous, and responsive. Her account came entirely from her and was a detailed account in relation to the events that occurred about five years earlier.

40In her evidence at trial, A. acknowledged that her memory of what happened was better when she provided her video statement than it was at trial. She testified that the information she provided in her video statement was true, and that she did not leave out anything that was important.

41In her trial evidence, A. testified that she did not want to see her father in the fall of 2023 because he got mad a lot when he drinks. She told her mother that she did not want to see him but did not tell her mother why. She made up her mind that she did not want to see her father in the summer of 2023. All meaningful contact with him ended then.

F. Analysis of the evidence

42During her interaction with officer Kavanaugh, A. was very spontaneous. She demonstrated a good memory about peripheral matters, such as where she went to school in various years, who her teacher was, where her father was living, and the people who also lived at that house. She described what happened to her and the events that followed in a matter-of-fact and straightforward manner. The questions asked by the officer were not leading. The account came entirely from A. She was able to express herself clearly and articulately. Her account appeared genuine.

43The evidence of A. was largely confirmed by the evidence of S. and by the defendant. But for the allegations, the accounts of all three witnesses as to the surrounding circumstances was largely consistent. This is important because it tells me that A. has the ability to recall and recount her circumstances accurately. In other words, she can be a reliable witness, notwithstanding her young age when the allegations arose.

(a) Inconsistencies in A’s evidence

44Counsel for the defendant submitted that inconsistencies in A.’s evidence should call into question her credibility and reliability. Mr. Henderson pointed to several areas of evidence about which, it is submitted, A.’s evidence was inconsistent. It was submitted that those inconsistencies should cause me to be concerned about her credibility and reliability. Those areas of alleged inconsistency were helpfully organized in a chart that has been marked as Exhibit A. In addition to the matters addressed in the chart, Mr. Henderson submits that A.’s evidence about when she disclosed the allegations to her mother is significantly inconsistent. I will deal with each of the alleged areas of inconsistency individually and will then go on to consider their cumulative impact.

45But before doing that, I will describe my impression of A.’s evidence generally.

(b) A.’s evidence generally

46The defence submits that A.’s evidence was problematic because she had a motive to fabricate her allegations. That motive was to ensure that her wish not to see her father would not be over-ridden by a court order that required her to see her father. Whatever the source of A.’s understanding that a court could force her to see her father, that is what she believed. She testified that she understood that her father wanted to see her again, and that he was going to court to get an order requiring her to see her him again. She knew that the hearing that was to occur on January 18, 2024, was about that. She was worried that the court would force her to see her father again.

47A. also testified that she did not make her allegations when she did to stop the court hearing, and that her decision to come forward was not related to that hearing. The defence points to A.’s evidence about when she disclosed to her mother in support of its submission that A. attempted at trial to distance her disclosure from the upcoming court hearing. I do not find this submission persuasive and reject it. I will explain.

48A’s trial evidence about when she told her mother about what happened was uncertain. At first, she said that she told her mother about what happened shortly before she made her video statement on January 16, 2024, and after she last saw the defendant on Boxing Day, 2023. She was cross-examined on her evidence at the preliminary inquiry that she was not sure and could not remember when she disclosed to her mother, and, in response to a suggestive question in cross-examination that related her decision that she did not want to see her father again to her disclosure and suggested that she disclosed to her mother in the summer of 2023, she responded “I think so. I’m not sure. I can’t remember.” She also said that in response to her mother’s question in the summer of 2023 about why she no longer wanted to see her father, she told her mother that was because he drinks and that “I didn’t tell her the other reason yet.” At the preliminary inquiry A. also agreed that it was a few days after she told her mother that she did not want to see her father because he drinks, that she told her mother about what happened with her father at her grandparents’ home. Confronted with her confused preliminary inquiry evidence at trial, A. testified that her present memory is that “I guess that I told my mom in the summer 2023”.

49S. testified that her daughter made her disclosure to her a few days before the scheduled court hearing, and not in the summer of 2023. Her evidence about the circumstances in which the disclosure was made, and her reaction to that disclosure by reporting it forthwith to the CAS, was compelling. I accept her evidence about this, and find that A.’s disclosure to her mother occurred on January 14, 2024.

50I find that A’s evidence about when she made her disclosure to her mother was not the product of any effort on her part to distance that disclosure from the family court proceedings. I find that the confused nature of her evidence about when she disclosed to her mother was the product of a child’s attempt to deal with a skilled cross-examination that obviously caused her to provide a variety of inconsistent answers at the preliminary inquiry and then caused her at trial to back off her initial and correct evidence that she disclosed shortly before she made her video statement.

(c) Inconsistencies in A’s evidence

51Mr. Henderson points to various inconsistencies in A.’s evidence, in support of his position that her evidence was not credible or reliable. Some of the matters referred to in argument do not in my view detract from A.’s credibility or reliability, because they relate to details or things that a child would have little reason to recall accurately many years later. How long her father licked her vagina or how long she touched his penis is not the sort of thing, assuming it happened, that a child could reasonably be expected to accurately perceive, recall or recount.

52I consider other inconsistencies to be more problematic, not because they reflect deliberate untruths, but because they undermine my ability to rely on A.’s evidence generally. Although some inconsistencies relate to peripheral matters, they cause me to be uncertain about the reliability of A.’s evidence. I will examine these inconsistencies specifically.

53In her s. 715.1 statement, A. told officer Kavanaugh that on the Friday night her grandparents were not at home, and that they were at “like a party or something with their friends”. At the preliminary inquiry, in response to the question: “do you know where your grandparents were?”, A. responded: “At a ball game”. At trial, when confronted with this inconsistency, A. testified that her grandparents went to a party. She added that she is certain this is what she was told. She testified that her evidence at the preliminary inquiry was wrong.

54In her s. 715.1 statement, A. told officer Kavanaugh that when her father showed her a sexually explicit video on his phone, he “came downstairs and sat right next to me”. At the preliminary inquiry, her evidence was different. When asked: “While you were watching TV on the couch, your father came and sat down beside you?” she responded: “No. He was standing.” When asked if he was standing face to face, A. responded that he was standing “to my side.” At trial, her evidence was that at the present time she does not know if her father was standing or sitting. She does not remember.

55In her s. 715.1 statement, A. told officer Kavanaugh that her father showed her the sexually explicit video after breakfast. At the preliminary inquiry, A. testified that her father showed her the video “later in the afternoon”. She did not know what time in the afternoon. She described a sequence of events that day that included going to a plaza with her father while her grandparents stayed at home, and that when they returned from the plaza her grandmother was not home and her grandfather was in the garage, before her father came into the living room and showed her the explicit video. At trial, A testified that her father showed her the video shortly after breakfast. When confronted with this inconsistency, A. testified that she was shown the video before lunch, a meal that she then ate early, at 10:45 a.m., and that her evidence at the preliminary inquiry was not accurate.

56In her s. 715.1 statement, A. told officer Kavanaugh that on the second night, her father “pulled his boxers down a little bit”, and they were “like on his leg”. At the preliminary inquiry, A. did not know if he pulled down his boxers, or not. At trial, A. testified that her father pulled down his boxers, and that she is sure about that.

57These inconsistencies are to some extent about matters that a child might not be able to recall accurately several years later. It would be not surprising for a child who was sexually assaulted at age 5 or 6 to be unsure, years later, of where non-involved persons were when something happened, or whether someone was standing or sitting, or at what time of day an event occurred, or the precise placement of an item of clothing. What is troubling about the inconsistencies that I have described is that on each occasion when A. spoke about what happened, she presented her memory of these things with certainty. Clearly, some of the things she expressed with certainty and clarity are wrong. Some, such as where her grandparents were, may have been told to her by someone else, rather that something that A. remembers.

58The fact that A. described events that cannot be true with certainty and clarity, and did so in relation to several unrelated things, causes me to have a doubt about the reliability of her evidence generally.

59I do not think that A. has deliberately lied about her memory of what her father did to her. Rather, the substance of her evidence has been affected by the passage of time. Her s. 715.1 statement was provided five or six years after the events she spoke about. Her preliminary inquiry evidence was given a year later. And her trial evidence was given more than a year later still. It is to be expected that A. may not be able to recount precise details and communicate the when and where of an event that occurred when she was five or six years old with exactitude, and this does not mean that she has misconceived what happened to her and who did it, but that is not what is problematic about her evidence. What is problematic is that she did recount precise details on each occasion that she has talked about what happened, and she did so confidently, articulately, and without ambiguity, and some of those details are simply wrong.

60I do not know whether A. confidently told officer Kavanaugh or the preliminary inquiry judge details that were wrong because she was filling in gaps in her memory with guesses, whether she was told about some things by others, whether her memory of events that occurred when she was very young and that were first recounted by her many years later is simply mistaken because of the passage of time, or whether her memory has been affected by other factors. The reason matters not. What matters is that I cannot decide, with the certainty required in a criminal prosecution, what A. is right about, and what aspects of her evidence may be mistaken.

61After anxious consideration, I have concluded that A.’s confident recollection of events as testified to in this court and in her s. 715.1 statement that forms part of her evidence before me does not mean that her evidence is sufficiently reliable to permit me to reject the evidence of the defendant.

62I am not satisfied, beyond a reasonable doubt, that the defendant did what the Crown alleges, and find him not guilty of each of the charges against him.

The Honourable Justice J. Speyer

Released: May 29, 2026

CITATION: R. v. P., C., 2026 ONSC 3125

OSHAWA COURT FILE NO.: CR-25-00016776-0000