R. v. Kechnie, 2026 ONSC 3244
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Stephen Kechnie
Defendant
G. Turvey, for the Crown
P. Douglas, for the Defendant
HEARD: April 27 and 28, 2026
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant shall not be published, broadcast, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR JUDGMENT
MOSER J.
INTRODUCTION
1The accused, Stephen Kechnie, stands charged with one count of sexual assault and one count of sexual interference contrary to the Criminal Code, R.S.C. 1985, c. C-46, ss. 151, 271.
2The allegations stem from an alleged incident that occurred in the eighth-floor hallway of an apartment building located in London, Ontario.
3Surveillance video shows that on July 8, 2024, at approximately 6:23 p.m., S.A.B. entered an elevator alone with the accused. The Crown alleges that S.A.B. exited the elevator on the eighth floor and, while in front of her apartment door, the accused grabbed her from behind, repeatedly squeezed her buttocks, put his other arm around her waist, kissed her cheek, whispered to her and told her twice that he loved her.
4The Crown called one witness: S.A.B., who was 12 years old at the time of the incident and 14 years old at trial. Her evidence included a videorecorded police statement taken on the evening of the alleged incident and her viva voce testimony from trial.
5The accused testified on his own behalf.
6Given the conflicting evidence, credibility and reliability are central to determining whether the Crown has proven the accused’s guilt beyond a reasonable doubt.
ANALYTICAL FRAMEWORK
7Before turning to the evidence, I will review the principles that govern my analysis.
(i) Presumption of Innocence and Reasonable Doubt
8The presumption of innocence and the standard of proof beyond a reasonable doubt are cornerstones of criminal law. They exist to protect innocent people from wrongful convictions.
9The accused is presumed innocent unless and until the Crown proves the charge beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.
10Proof beyond a reasonable doubt is not equivalent to proof of probable or likely guilt, nor is it proof to a level of absolute certainty. The trier of fact must be sure that an accused person committed the offence to convict. If the trier of fact is not sure, then the accused cannot be guilty.
(ii) W.(D.) Analysis
11Because the accused testified and denied the allegations, I must follow the three-step analysis in R. v. W.(D.), [1991] 1 S.C.R 742, at pp. 757–58:
I. If I believe the accused’s evidence, I must acquit him.
II. If I do not believe the accused’s evidence but I am left in reasonable doubt by it or any other evidence called, I must acquit him.
III. Even if the accused’s evidence does not leave me in reasonable doubt, I must still ask myself whether the evidence I do accept proves his guilt beyond a reasonable doubt and, if not, I must acquit him.
12I am entitled to accept some, none, or all of a witness’ evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. Where I am unable to decide who to believe, the accused is entitled to an acquittal: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para 12.
13The burden remains on the Crown to prove the accused’s guilt beyond a reasonable doubt. I must determine whether the Crown discharged that burden. The accused does not have to prove anything, and a lack of credibility on the accused’s part does not equate to meeting this high bar: J.H.S., at para. 13; R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 59, 62; and R. v. T.A., 2020 ONCA 783, at para. 28.
14Mere disbelief of the accused alone does not amount to proof beyond a reasonable doubt; that would run afoul of the third prong set out in W.(D.). It is nonetheless possible for the trier of fact to reject the accused’s evidence because they accept the evidence of the complainant beyond a reasonable doubt. In R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69, the Court of Appeal for Ontario explained the following:
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.
(iii) Assessing Credibility and Reliability
15When assessing credibility and reliability, I must assess several factors to determine the weight to give a witness’ evidence. No single factor is determinative. There is no magic formula to decide how much of a witness’ evidence I should believe.
16The most effective way to assess credibility is to examine internal and external inconsistencies in a witness’ evidence. Inconsistencies may arise not only from a witness’ evidence at trial, but also from what they may have said differently in other instances: R. v. M.(A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12–13. Some inconsistencies may be minor, but others will be material and go to the heart of the allegations. Material inconsistencies about evidence in which an honest witness is unlikely to be mistaken should concern me.
17Credibility and reliability are distinct concepts in criminal law. Credibility speaks to a witness’ veracity, truth-telling and trustworthiness. Reliability speaks to the witness’ accuracy. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. However, the converse may be true. A credible witness can give unreliable evidence: H.C., at para. 41; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.). An honest witness may be unreliable or have an imperfect or inaccurate recall of events.
18While I can consider how a witness testifies in assessing their credibility and reliability, I cannot overly rely on their demeanour. This is due to an increasing recognition that individual traits and backgrounds may impact demeanour without affecting credibility: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261. I must consider the totality of the evidence. This assessment must be conducted with the same degree of scrutiny for each witness.
19What I must not do is turn this trial into a credibility contest where I simply pick and adopt one version of events over another. It bears emphasizing that my task is not to determine which of two versions of an event is more believable. It “is to determine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt”: R. v. T.A., 2020 ONCA 783, at para. 28.
20Witnesses are not presumed to tell the truth. The only presumption that applies in this case is the presumption of innocence: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32.
(iv) Assessing a Child’s Evidence
21The complainant, S.A.B., was 12 years old at the time of the alleged incident and 14 years old when she testified at trial.
22The “reasonable adult” standard is not necessarily apt when assessing the credibility of children. Inconsistencies that would weigh heavily against an adult’s credibility and reliability may carry less weight for a child: R. v. W. (R.), [1992] 2 S.C.R. 122, citing R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54–55.
23Children often experience and recall events differently than adults. It is hardly surprising that details important to adults, like dates and times, may be missing from a child’s recollection. Children may also be unable to recall details about sequence, frequency, and the separation of days with exactitude. This does not mean they misconceived what happened to them or who did it: W.(R.), at p. 134; B. (G.), at pp. 54–55.
24None of these considerations change the standard of proof. The Crown must still prove the accused’s guilt beyond a reasonable doubt. There is no separate “adult” or “child” standard. I must assess each witness’ credibility and reliability using criteria suited to the person’s development, understanding, and ability to communicate: W. (R.), at p. 134.
25Corroboration is not required to accept a child’s evidence, but it may assist me. Evidence can have confirmatory value even if it does not directly prove the acts or directly implicate the accused, so long as it supports aspects of credibility or reliability in light of the challenges raised by the accused: R. v. Primmer, 2021 ONCA 564, at paras. 33, 38–42, leave to appeal refused, [2022] S.C.C.A. No. 462, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568; R. v. H.P., 2022 ONCA 419, 414 C.C.C. (3d) 395, at para. 69; and R. v. S.R., 2023 ONCA 671, at para. 7.
(v) Myths and Stereotypes in Sexual Assault
26I must avoid relying on recognized myths and stereotypes about how victims of sexual assault are expected to behave. One such myth is that genuine victims report immediately or cease all contact with the alleged perpetrator. Power imbalances, fear, confusion, emotional dependence, and other contextual factors may shape how a complainant behaves after an assault. These assumptions have no role in assessing credibility: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63.
27As the Supreme Court stated in D.(D.), there is no inviolable rule governing how a victim of sexual assault will behave. Some victims may report immediately, some may delay, and some may never disclose at all.
(vi) The Accused’s Statement
28The accused’s prior statement was used in part during cross-examination.
29The Crown may use an accused’s statement for the truth of its contents either as part of the case-in-chief or as a prior inconsistent statement in cross-examination when the accused testifies. These statements often contain both inculpatory and exculpatory evidence: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 37.
REVIEW OF EVIDENCE
30I will now review and summarize the evidence I heard at trial.
(i) Stephen Kechnie
(a) Evidence-in-Chief
31Stephen Kechnie testified on his own behalf. He was 77 years old at trial. He provided a detailed and lively examination-in-chief. He appeared comfortable testifying and readily provided specific details about both his background and the events of July 8, 2024. For example, he testified that he retired from Canada Post after “35 years, 10 months and 5 days, but who’s counting.” He said that he retired in 2003 and that “life has been good ever since.”
32The accused testified that he lived across the hallway from S.A.B., although their apartment doors were not perfectly aligned.
33He described the events of July 8, 2024, as follows:
i. He had been grocery shopping at the No Frills located next door to his apartment building before entering the lobby.
ii. He recalled purchasing four two-litre bottles of pop, a bag of milk, a package of bagels and a loaf of bread. He described this as his usual grocery list.
iii. After viewing surveillance video from the lobby of the apartment building, he testified that the two yellow shopping bags seen in his hands were heavy and required both hands to carry.
iv. He explained that, as seen in the video, he checked his Canada Post box in the lobby of the apartment. He also checked the garbage area to ensure that no one had discarded any mail or cheques that had been placed in the wrong box. He said that he does this regularly.
v. He recalled focusing on carrying his groceries as he entered the elevator.
vi. He stated that when he exited the elevator on the eighth floor, he proceeded directly to the west wall toward his apartment to put his groceries away as quickly as possible.
vii. He testified that he placed the groceries on the floor to retrieve his keys and unlock his front door, explaining that the door does not stay open on its own and will otherwise slam shut.
viii. He said he wanted to return home in time to watch Julie Atchinson, the weather anchor, on the local news with his wife, Linda. The local news airs on cable channel nine at 6:35 p.m.
ix. He recalled entering the apartment, putting the groceries away, washing his hands and sitting down with Linda to watch Julie Atchinson report the weather.
x. He denied any conversation with S.A.B. in the hallway on the eighth floor. He denied any interaction with her at all in the hallway that evening. He denied all the allegations.
xi. He described feeling surprised when police attended at his apartment later that night and arrested him for the offences before the court.
(b) Cross-Examination
34Mr. Kechnie’s demeanor changed dramatically in cross-examination, which began immediately after his examination-in-chief and before the lunch recess. He now appeared befuddled and confused. When shown his videorecorded police statement – previously admitted by the defence to be voluntary – he claimed that he did not recognize himself nor his voice.
35Due to technical issues in the courtroom, I suggested playing a portion of the audio statement to the accused. The court heard a segment that highlighted an inconsistency with his trial evidence. In his police statement, he said that he purchased bread, milk, bananas, 2% cottage cheese and a large bag of salted store-brand ripple chips. Apart from the milk, this differs from the items he testified to purchasing in his examination-in-chief.
36When confronted with the audio, the accused claimed that he did not know who was speaking and described the voice as sounding very indecisive. The court then played the same portion with the video. After hearing and seeing the video, the accused maintained that he still did not recognize himself.
37To help orient and rehabilitate the accused, Crown counsel played a different segment of the video that contained introductory statements. In this segment of the video, the accused engages in casual conversation with the officer and provides personal details. For instance, he discusses his upcoming 50th wedding anniversary on July 20th and recalls a joke he made with a friend about his wife being the only woman who would have him.
38After watching and listening to this portion of the video, the Crown inquired who the accused saw in the video. The accused responded: “I don’t recognize the people and I don’t recognize the voice.”
39The Crown then asked directly, “Is that you?”
40The accused responded, “That, I don’t know.”
41I do not believe the accused’s evidence that he did not recognize himself in the video. This is particularly so after he viewed the introductory portion of the statement in which he discussed specific details of his personal life in a familiar and jovial fashion. His evidence defied logic and common sense. His apparent confusion during cross-examination stood in stark contrast to his ability to answer questions readily, moments earlier, in examination-in-chief. I do not accept his evidence that he did not recognize himself.
42This incident set the tone for the remainder of his cross-examination on the first day of his evidence. What followed was evidence that either attempted to: (i) distance the accused from inconsistencies between his police statement and trial evidence; and (ii) engender sympathy from the court.
43Court concluded early on the first day of evidence at counsels’ request.
44Cross-examination continued on the second day of trial.
45When further confronted with his police statement, the accused agreed that he told the investigating officer, Detective Simone, that he was alone in the elevator at approximately 6:30 p.m. on July 8, 2024. At trial, however, he testified that he did not remember being on the elevator with S.A.B. that day. He also testified that he had never been alone on an elevator with S.A.B. while they lived in the same apartment building. The accused testified that he has lived in the apartment building since the 1990s.
46S.A.B. provided evidence that revealed that she has lived in the building for her entire life.
47The Crown then played the lobby surveillance video for the accused. The accused agreed that he was the person depicted in the video carrying No Frills grocery bags. He also agreed that although he was waiting for the elevator, he did not take the first available elevator and allowed another person to enter it alone while he continued to wait.
48When shown the portion of the video where a girl in pink appears, the accused agreed that this was S.A.B. pushing a laundry cart. He further agreed that S.A.B. entered the elevator and he followed.
49The accused agreed that he and S.A.B. were alone in the elevator, that they would have travelled to the eighth floor, and that they would have exited the elevator and walked in the same direction down the hallway.
50At this point in the cross-examination, the accused agreed that he was the person seen in the video played in court the day before being interviewed by police.
51When the Crown suggested that he seemed to recall many details of that evening except for being in the elevator with S.A.B., he replied “um, some.” He disagreed that he must have remembered being in the elevator with her when police attended at his apartment that same evening. He continued to deny all the allegations put to him by the Crown.
52I do not believe the evidence of the accused. In his examination-in-chief, he provided a detailed account of July 8, 2024. He recalled what he had purchased at the grocery store, how he carried the groceries and how he entered his apartment. He also recalled that he wanted to watch Julie Atchinson with his wife on the television. He has a detailed recollection of events peripheral to the allegations from that day. Despite this level of detail, he claimed to have no memory of being alone in the elevator with S.A.B. or encountering her in the hallway as they proceeded in the same direction toward their respective apartments. The hallway in the apartment is only one and a half or one-and three-quarter yards wide. For having such a sharp memory, I find it unbelievable that the accused would not recall this interaction in a confined space.
53I do not accept this claimed gap in the accused’s memory from the time he entered the elevator to unlocking his front door. I find it implausible and incredible. This memory gap is irreconcilable with the level of detail he provided about the same sequence of events, particularly given that police attended at his apartment later that evening, informed him of the allegations, brought him to the police station and kept him overnight.
54The accused denied being alone in the elevator with S.A.B. during his police interview the following morning. The surveillance shows S.A.B. flashing a kind smile to the accused and greeting him with a word or two as she entered the elevator. I do not accept that he has no memory of being alone in the elevator with her. I find that his evidence on this point is a deliberate attempt to mislead the court.
55The accused did not demonstrate the hallmarks of a credible witness. The detail he provided at trial regarding what he purchased at the grocery store demonstrates a lack of care in his evidence. He was unwilling to accept that he told police a different list of groceries. Instead, he deflected and obfuscated when confronted with that inconsistency. While this detail is not germane to the elements of the offences before the court, it shows that the accused was entrenched in his trial testimony and unwilling to acknowledge that he had previously provided a different version of events.
56As for the accused’s reliability, he claims a memory gap from the moment he saw S.A.B. in the lobby to the moment he entered his apartment. What is missing from his otherwise comprehensive memory? The presence of S.A.B.
57I do not accept that the accused has no memory of being in the elevator or hallway with S.A.B. He admitted that they would have been in a very narrow hallway, walking in the same direction – she with a laundry cart and he carrying two full grocery bags, one in each hand. I find that his evidence on these points is not credible. I have no issue with the reliability of his memory on the date in question. I believe that he does remember what happened on July 8, 2024. It is his credibility that I have issue with.
58Overall, while I find that the accused was a reliable witness, he was not a credible one. I reject his evidence. It does not raise a reasonable doubt.
(ii) S.A.B.
(a) Police Video Statement
59On consent, the parties admitted into evidence the police video statement given by S.A.B. on July 8, 2024, under s. 715.1 of the Criminal Code.
60S.A.B. appeared physically less mature in her video statement than she did when testifying at trial. In the video, she appeared as a pre-adolescent 12-year-old girl.
61S.A.B. attended the police station to give her statement on the night of the incident. Her grandmother and uncle accompanied her. They sat quietly in the room as she explained to a police officer what had happened to her.
62When asked to describe the accused, S.A.B. said, “he’s a pretty nice person, at least I thought. Um, talkative, kind of sometimes quiet, it just, like depends, but he seemed like a pretty nice person”.
63When asked how long she had known the accused, she said, “[w]ell, practically my whole life, because he’s been our neighbour”.
64S.A.B. provided great detail during her police interview. She explained that she was at the door to her apartment but had not yet unlocked it when, “all of a sudden,” the accused was right behind her. She gave details about the sequence of events, including from who entered the elevator first, who pushed the button for the eighth floor and their awkward conversation before she exited the elevator first.
65She described how he grabbed her around the waist and how his other hand was squeezing her buttocks and between her legs. She showed the police officer how he held her and how his hand grabbed her: palm up, fingers opening and closing as he squeezed her buttocks. She also indicated how close his face was to hers and that he kissed her left cheek.
66She did not add information she did not know. For example, she recalled that he whispered something to her, but she could not make out what he was saying. She fairly admitted that she did not know what he had whispered. However, she did recall him saying, in a “normal” voice, “I love you” two times.
67She also recalled her response to this event:
“And then he had kept on touching my butt and stuff, and then I just -- like, I have no clue what to do. Like, I was just frozen in place, and then I quickly grabbed my keys from my purse, um, and unlocked my door, and ran inside and shut it, like I said, twice, I said that's not okay”
(Exhibit 1b, at p. 17, lines 1-5).
68And later:
A: Uh, I was worried. I didn't know what to do. I was, like, frozen in place. Like, I just felt like I couldn't move at that point, 'cause I had no clue what to do.
Q. Mm-hmm.
A. Um, and then, like, finally, like, my mind kicked in, and I'm, like, I got to go in the apartment. And I just ran into the apartment
(Exhibit 1b, at p. 19, lines 13-20).
69At the end of her statement, without being prompted, S.A.B. said the following:
A. Well, it's not like -- also, afterwards, like, I did...
Q. Mm-hmm.
A. ...feel really bad about, like, even though what he did was wrong, I also feel bad that, like, he's gotten arrested, for some odd reason. Even though, like, I know what he did was terrible, but inside...
Q. Mm-hmm.
A. ...you know, I still kind of feel bad.
(Exhibit 1b, p. 25 lines 12-20)
70S.A.B.’s account lacked embellishment and exaggeration. However, that only goes so far. Merely because an allegation could have been worse does not mean that it is more likely to be true: R. v. G.G. (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), at p. 10; R. v. L.L., 2014 ONCA 892, at para. 2; and R. v. R.A.G., 2008 ONCA 829, at para. 20. A restrained account does not prove credibility, as both truthful and fabricated accounts may appear plain and unadorned.
71With that in mind, I find that S.A.B. was a very credible and reliable witness in her statement to police.
(b) Trial Evidence
72In her examination-in-chief, S.A.B. adopted her police statement.
73She explained that she told the police the truth, but that she had been trying to forget the incident since it occurred.
74She stated that, as far as she knew, the accused had put his grocery bags down before he grabbed and touched her.
75In cross-examination, she agreed that she and her mother had been going back and forth to the laundry room that day. At one point, her mother left to walk their dog.
76S.A.B. agreed that her keys were in her cross-body bag and that she would have stopped in front of her apartment door and had to unzip her bag to retrieve them. She agreed that the accused came up behind her “all of a sudden,” which surprised her.
77Defence counsel suggested that S.A.B. never turned around when the accused grabbed her. S.A.B. firmly responded that she did turn around when he grabbed her. She acknowledged that she did not tell the police this detail, but she remained clear that she did see the accused when he first grabbed her.
78S.A.B. admitted that she was not watching his hands and that she assumed he had put the grocery bags down before grabbing and squeezing her. When counsel suggested to her that she could not say whether he was holding one or both bags, she responded, “as far as I know he was not.” Defence counsel then suggested that she inferred he had put the grocery bags down based on what she felt, and S.A.B. agreed.
79S.A.B. agreed that she told her mother right away what had happened and believed it was her mother who called 911. She explained that her grandmother and uncle arrived afterward and accompanied her to the police station.
80S.A.B. acknowledged that she spoke with her family about what had happened before giving her police statement.
81On the key aspects of the allegations, S.A.B. did not waiver. She was clear in her account of the incident.
82Defence counsel fairly conceded that S.A.B. was a genuine witness and did not suggest that she lacked credibility. The defence position focused on her reliability. Counsel submitted that the encounter was very brief and that S.A.B. was startled. Counsel argued that her attention was focused elsewhere while retrieving her keys from her bag and that several things occurred simultaneously.
83Defence counsel also pointed to her evidence in cross-examination, where she said that she was unsure where the grocery bags went and did not know whether the accused was holding a bag in one or both hands. Counsel further noted that certain details raised at trial were not included in her police statement. Namely, that S.A.B. looked behind her when the accused grabbed her and that she inferred the accused must have put his grocery bags down before touching her.
84I accept the evidence of S.A.B. She is an articulate, intelligent and thoughtful witness, particularly given that she was 12 years old on the night of the incident. She carefully described how the accused grabbed her around her waist and stomach. She used hand motions and gestures to demonstrate how close his face was to hers when he said “I love you” twice before kissing her. She showed how he wrapped one arm around her waist by using her own arm, and she demonstrated how his other hand moved to squeeze her buttocks more than once. Her evidence was clear and forthright.
85S.A.B. has known the accused her entire life. He has always been her across-the-hall neighbour. The surveillance video (Exhibit 2) shows S.A.B. greeting the accused in the lobby that evening, shortly before 6:30 p.m. The interaction appears natural and unguarded. The accused comes close to S.A.B. in front of the elevator. He is wearing a face mask. He appears to say or do something to get her attention. She turns away from her phone, looks at him, and flashes him a genuine and open smile. She says something quick in response and walks into the elevator first, with the accused following behind her carrying both grocery bags.
86This is important. The accused denied to police that he had been alone in the elevator with S.A.B. during his interview the following morning. That denial is directly contradicted by the video evidence.
87While children’s evidence does not require corroboration, the surveillance video confirms key aspects of S.A.B.’s account. It shows her coming from the direction of the laundry room with a cart, encountering the accused in the lobby and entering the elevator with him alone.
88The level of detail S.A.B. provided to police – how and where the accused touched her, how close the accused put his face to hers, the words he uttered to her and what she said in response – supports the reliability of her account. She also described contextual details, such as having the laundry cart with her and running into her apartment quickly because she was scared, leaving the cart behind.
89A witness with credibility and reliability issues would not recount events like S.A.B. did. She gave her statement to the police just over three hours after the incident. At that time, she demonstrated no difficulty in recalling the events. I find her to be a very reliable witness, and I accept her account of what occurred.
90I do not accept the defence’s submission that S.A.B.’s trial evidence is undermined because she said for the first time that she looked behind her when the accused grabbed her. This is a minor detail. This does not make her account questionable. It makes good common sense that she would turn or glance behind her when grabbed unexpectedly from behind. The officer simply did not ask or explore this question during her police interview. S.A.B. has not been uncertain, at any point in her evidence, about who grabbed her in the hallway. She has known the accused her entire life.
91I also have no difficulty with the inference S.A.B. made about the grocery bags and their location in the hallway. The evidence establishes that the accused had grocery bags in the elevator. It is also clear from S.A.B.’s evidence that, when the accused squeezed her buttocks, in that hand, at least, he was not holding any bags. It is not unreasonable for her to have inferred that he must have put them down. In any event, the accused himself testified that he placed his bags on the floor when he reached his apartment door, which is located across from S.A.B.’s apartment. He claimed that he set the bags down to get his keys. This aspect of S.A.B.’s evidence does not undermine her reliability.
FACTUAL FINDINGS
92To be clear, I find that the following occurred on July 8, 2024:
i. The accused was in the lobby of the apartment building that he shared with S.A.B. and her family, in London, shortly before 6:30 p.m., carrying two large yellow No Frills grocery bags.
ii. The accused appeared to be waiting for an elevator. When a younger man in a tank top entered the available elevator, the accused stepped back and did not get on.
iii. S.A.B. exited the laundry room and walked down the hallway pushing a laundry cart. She saw the accused, smiled and greeted him.
iv. S.A.B. and the accused then entered the elevator. They were alone.
v. The elevator travelled to the eighth floor, where they both lived.
vi. When the elevator doors opened, S.A.B. asked the accused if he wanted to go first. He told her she could go first. After a brief, awkward exchange, S.A.B. exited the elevator ahead of the accused.
vii. S.A.B. proceeded down the hallway toward her apartment quickly, pushing the laundry cart. She stopped at her door and began unzipping her cross-body bag to retrieve her apartment key.
viii. At that point, the accused came up right behind S.A.B. He startled her. He wrapped one arm around her waist and, with the other hand, squeezed her buttocks and reached between her legs, touching her thighs and buttocks.
ix. While doing so, the accused whispered something unintelligible to S.A.B., and then kissed her on the left cheek.
x. He then said “I love you” to her twice in a louder, normal voice.
xi. When first grabbed, S.A.B. froze for a few seconds.
xii. After regaining her composure, S.A.B. said “stop” to the accused twice and also said “that’s not okay” twice during the incident.
xiii. S.A.B. then unlocked her door and broke free of the accused’s grasp. She ran into her apartment, leaving the laundry cart in the hallway. She immediately told her mother what had happened and then went to her room.
APPLICATION
93Applying the first step of W.(D.), the accused’s evidence does not raise a reasonable doubt. I reject his evidence where it conflicts with the evidence I do accept.
94Applying the second step, considering all the evidence, I am not left with a reasonable doubt.
95At the third step, based on the evidence I do accept, namely the evidence of S.A.B. and the surveillance video, I am satisfied that the Crown has proven the charges beyond a reasonable doubt.
96I turn to the application of these findings to the elements of the offences alleged.
97Defence counsel fairly conceded that if I accept that the events occurred as described by S.A.B. in her police statement, then the Crown will make out the essential elements of both sexual assault and sexual interference. Namely, that the accused grabbed S.A.B. around the waist, squeezed her buttocks and thighs, reached between her legs, kissed her on the cheek and said, “I love you”. That concession is well founded.
98The actus reus of sexual assault consists of three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent: R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 25; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 25.
99The Crown proves touching objectively by establishing that the act was voluntary: Ewanchuk, at para. 25; R. v. Daviault, [1994] 3 S.C.R. 63, at p. 74.
100The sexual nature of the contact is assessed objectively. It is not necessary for the Crown to prove that the accused subjectively intended a sexual purpose: Ewanchuk, at para. 25.
101The mens rea of sexual assault has two components: (i) an intention to touch; and (ii) knowledge of, or willful blindness to, or recklessness about the complainant’s lack of consent: Ewanchuk, at para. 42; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 87. Sexual assault is a general intent offence. The Crown must only prove that the accused intended the touching: Ewanchuk, at para. 41.
102A child under the age of 16 cannot validly consent to sexual activity: R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522, at para. 20.
103Section 151 of the Criminal Code provides the following elements for the charge of sexual interference:
Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.
104On my factual findings, the Crown has clearly established the elements for both the sexual assault and sexual inference charges. The accused intentionally touched S.A.B. by wrapping his arm around her waist, squeezing her buttocks and thighs, reaching between her legs and kissing her on the cheek while telling her that he loved her, twice. S.A.B. was twelve years old at the time of the offence. She was incapable of consenting. The nature and context of the touching, targeting intimate areas of S.A.B.’s body, accompanied by physical closeness, kissing and words of affection, are objectively sexual. That conduct constituted a violation of S.A.B.’s sexual integrity.
DISPOSITION
105Returning to the W.(D.) framework, I reject the accused’s denial that no sexual touching occurred involving S.A.B. on July 8, 2024. His evidence does not raise a reasonable doubt, whether considered on its own or in the context of the evidence as a whole.
106I accept S.A.B.’s account of the incident as outlined above. When considered together, the portions of the accused’s evidence that I do accept, S.A.B.’s evidence and the surveillance video form a coherent and consistent body of evidence that does not give rise to any reasonable doubt on either count.
107On the totality of the evidence, I am satisfied beyond a reasonable doubt of the accused’s guilt on both charges. I cannot reach any other reasonable conclusion on the evidence.
108Mr. Kechnie, please stand. For these reasons, I find you guilty on counts one and two on the Indictment.
109Counsel previously agreed that the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, 44 D.L.R. (3d) 351, applies. Accordingly, I stay the conviction on the sexual assault charge as previously requested by the Crown.
Justice J.M. Moser
Released: June 2, 2026