His Majesty the King v. Sathisan Selvarasa, 2026 ONSC 3360

Court File and Parties

CITATION: R. v. Sathisan SELVARASA, 2026 ONSC 3360

COURT FILE NO.: CR-23-50000711-0000

DATE: 20260609

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

SATHISAN SELVARASA

Stuart Rothman, for the Crown

Nadia Guo, for the accused

HEARD: January 27-February, 2025; March 30-31, April 1-2, 2026

REASONS FOR JUDGMENT

This decision is subject to a publication ban under s. 486.4 of the Criminal Code

WASSENAAR J.

1Mr. Selvarasa has been charged with sexual interference (s. 151(a)), invitation to sexual touching (s. 152(a)), and unlawful confinement (s. 279(2)(a)).

2This matter began before me on January 27, 2025 with pre-trial motions. Jury selection took place on January 29 and the Crown began calling evidence on January 30. The Crown called the complainant’s mother (“AT”) and the complainant. The Crown closed its case on February 3. On February 4, the defence case began with Mr. Selvarasa’s testimony. His wife, Carmel Joseph, began her testimony that day, but it was not completed.

3On February 5, a juror was sick. The Crown suggested dismissing the juror and the defence advocated for waiting a day in the hopes of continuing with 12 jurors. I agreed with the defence proposal. The remaining jurors were excused for the day and we began a pre-charge conference. When I returned to court mid-day on February 5 to continue with the pre-charge conference, I was alerted to an issue that had arisen with Mr. Selvarasa’s testimony.

4During Mr. Selvarasa’s testimony, a letter addressing his work hours had been entered as Exhibit 5. On February 5, the Crown raised concerns about the veracity of the letter. The defence brought an application for a mistrial, which was denied. Defence counsel (not Ms. Guo) brought an application to get off the record, which was allowed. The parties agreed to proceed with a judge alone trial. The Crown undertook not to rely on what it alleged was a forged letter, put before the court by Mr. Selvarasa, as post-offence conduct. The Crown would limit the relevance of the letter to Mr. Selvarasa’s credibility. The Crown also indicated flexibility in how it would proceed in relation to the letter, in order to permit Mr. Selvarasa an opportunity to explain the letter.

5There were a great number of appearances in an effort to determine whether Mr. Selvarasa wished to retain counsel, and to permit him time to retain counsel. The trial was scheduled to resume in September 2025, but Mr. Selvarasa sought and was granted an adjournment. The trial was then scheduled to resume in December 2025. Prior to trial, Mr. Selvarasa had retained Ms. Guo, but she was not available on the December dates. The trial was then scheduled for March 30, 2026. The trial proceeded, with Ms. Guo as counsel. Ms. Joseph resumed her testimony, their daughter (“A.”) testified, and then the defence recalled Mr. Selvarasa.

6Prior to the resumption of the trial, Mr. Selvarasa had pleaded guilty to forgery, uttering a forged document, and perjury, in relation to the letter.

Allegations and Evidence

7Mr. Selvarasa was charged with sexual offences alleged to have occurred between 2015 and 2019. The complainant was a friend of Mr. Selvarasa’s daughter, A. The girls played together when they lived in the same apartment building. The complainant said that when she was at A.’s home, Mr. Selvarasa inserted his penis between her buttocks on two occasions, and confined her in a bathroom and asked her to touch his penis.

The Crown’s Evidence

8AT testified that she lived in a unit on the 15^th^ floor for about four years, with her husband, their children, and her mother. They moved into a unit on the 8^th^ floor for about a year, and then moved out of the building. AT would drive the complainant to school in the morning, and the complainant took the bus home. AT met Ms. Joseph in the apartment lobby while they were waiting for the bus. Sometime after that, the girls started to play together. The complainant would often go to A’s house to play.

9The complainant said in her statement to police that the events occurred when she was around eight years old. She described A. as a very close friend. The first incident happened in a playroom in A.’s apartment. The playroom had a very long couch. The girls were playing in the living room and the father called them into the playroom. The father was tickling both girls. He then told his daughter to turn around. He put the complainant on her stomach and pulled down her bottoms. He took his pants partway off and put his penis in her buttocks. He did not put it all the way in. It did not hurt. The complainant was looking out the window. Afterwards, she felt like something weird had happened. She and A. went into the living room and the father returned to his bedroom. A.’s mother was cooking in the kitchen and A.’s brother was sleeping or playing in the living room. On a later day, possibly the next day, A.’s father dropped her off at school. The complainant thought that A.’s brother was also in the car.

10On another occasion, the complainant was playing in the living room with A. The father told the complainant to come here because he had something to show her. He had a bathroom in his bedroom. He took the complainant in the bathroom and locked the door. He showed her his penis and told her to touch it. She refused, pushed him and left the bathroom. She resumed playing with A. She thought she stayed until about 7 pm, when the sun was going down. A.’s mom and brother were in the apartment during this incident. The mom was in the kitchen, and the complainant’s brother was playing.

11She described another incident before the bathroom incident. A’s father picked her up and carried her into the bedroom. He laid her down on the bed and told her to lay on her stomach. He did the same thing he had done in the playroom. She initially said that this incident happened the same day as the bathroom incident, immediately prior. She thought the bedroom and bathroom incidents happened the day after the playroom incident, but she was not sure.

12At trial she was asked if she was able to say how many days the three incidents occurred over, but she could not. She thought the bedroom and bathroom incidents were on the same day. The order was playroom, bedroom, bathroom. At trial she recalled that during the bathroom incident, his boxers were cut and had a ruffled edge, and his penis was sticking out of the hole.

13When she was nine or 10, the complainant told a friend what had happened. She did not tell her mom for a long time. At school there was a program where they learned about the body. At first it was okay, but when they started learning more she could not handle it. She told her mom what happened one day when they were at a restaurant. After that she and her mom went to their family doctor.

The Defence Evidence

14Mr. Selvarasa was married to Carmel Jospeh and had two children, a boy and a girl. In 2016 the family moved into an apartment on Kipling Ave., on the 15^th^ floor. They moved out in 2020. At the time of trial they lived in a home in Brampton and he owned his own cleaning company.

15When they lived in the Kipling apartment, Ms. Joseph normally drove A. to school in the morning and then dropped off her son at play school. A. took the bus home.

16Mr. Selvarasa worked at Unico. He would leave the house at 2:30 pm. He finished his shift at Unico at midnight or 1 am. A. got home from school at 3:45 or 3:50 pm. He normally worked Monday to Friday, but if it was busy he would also work on Saturdays. He did not work on long weekends. In 2016-2017 he also had a job cleaning at a chemical company, after his Unico job. He would get home at about 5:30 am. The cleaning job was seven days a week. In 2019, he went for training to get his forklift license, which meant he started working morning shifts. At times, he has called in sick. He agreed on cross-examination that there had been weekday afternoons between 2016 and 2019 that he had taken one of his children to an appointment and then returned home; he then said the appointments were in the mornings. Ms. Joseph testified that on weekends, the children would not play inside the apartment, even if Mr. Selvarasa was not home. She would take them outside instead.

17There were three bedrooms in their apartment. Ms. Joseph slept in one room with the children. Mr. Selvarasa slept in the other room. The third bedroom was used for storage, for things like the children’s bicycles. Mr. Selvarasa said the children mostly played in the living room. The living room had a dark couch underneath a large window. Mr. Selvarasa agreed on cross-examination that there was a bathroom attached to his bedroom. Ms. Joseph said he used the main bathroom, which was across the hall from the master bedroom. A. said she slept in the master bedroom with her mom and brother, and her dad slept in another bedroom. The master bedroom had a bathroom attached.

18Mr. Selvarasa denied having a playroom separate from the living room with a couch that turned into a bed. He agreed on cross-examination that sometimes there were toys in the storage room. Ms. Joseph said that they did not have a playroom. The children always played in the living room. Ms. Joseph said that her son’s building blocks were in the storage room sometimes. She also said she put her son’s car in there. She did not let the children go in that room. It was dangerous as the room contained a glass table and things that could fall on them. There was a window in the storage room. A. remembered her mother putting her brother’s car in the storage room and taking it out in the morning. A. testified that there was a glass table in the storage room and there was not a couch. She did not remember playing in there.

19Mr. Selvarasa denied tickling his daughter in 2016 or 2017. He also denied tickling the complainant. Ms. Joseph said that he would not tickle the children. A. testified that her dad never tickled her, and she never saw him tickle the complainant.

20Mr. Selvarasa said he had met the complainant in the hallway on the 15^th^ floor, but had never seen her inside his apartment. Ms. Joseph and A. also testified that Mr. Selvarasa met the complainant in the hall. Ms. Joseph and A. both testified that the complainant would come over to play with A. three to four times a week. Often her siblings were with her, although the youngest less so. Ms. Joseph later said the brother was always with the complainant when she was at A.’s apartment. A. also testified that the complainant’s brother was always with her at the apartment. Ms. Joseph said the complainant was never at the apartment when her husband was home. A. did not remember the complainant being at the apartment when A.’s dad was present. Ms. Joseph said there was never a time that she could not see the children and could not hear any noise. After the complainant moved to the 8^th^ floor, she did not come over as much.

21On one occasion, Mr. Selvarasa was in the car with his wife driving, and they dropped off A. and the complainant at school and then took his son for a vaccination appointment. Mr. Selvarasa never drove the car when the complainant was in the car. A. testified that she had no memory of a time that her dad drove her to school when the complainant was in the car. A. said her dad would be tired in the morning because he just got home from work, and her mom was always there so there was no reason for her dad to drive. On cross-examination A. agreed that her response was based on what normally happened, and she was not saying it was impossible that her dad could have driven.

22Mr. Selvarasa knew that children came to his house to play because his wife told him that that happened. He would see children, including the complainant, play in the hallway, mostly on Saturdays when he was going to work in the evenings.

23Mr. Selvarasa said the first time he knew it was the complainant that had made the allegation against him was during his police interview when the officer said her name. He was shocked. Mr. Selvarasa denied all of the allegations.

General Legal Principles

Onus and Standard of Proof

24The Crown bears the burden of proof. The standard the Crown must meet is proof beyond a reasonable doubt.

25I am governed by the principles of R. v. W.(D.), [1991] 1 S.C.R. 742. While typically set out as a three or four step analysis, as the Court of Appeal helpfully articulated in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721 at para. 22, W.(D.):

… is simply a methodology that triers use to determine whether the prosecution has met its burden of proving each element of the offence beyond a reasonable doubt. In cases like this one, involving “conflicting testimonial accounts”, the methodology can be helpful in ensuring that triers keep the burden squarely on the Crown [citation omitted].

26W.(D.) directs that when assessing credibility in the face of conflicting testimonial accounts I must not engage in a credibility contest. See also R. v. Berg, 2026 SCC 21. Any defence evidence, not just that of Mr. Selvarasa, is capable of raising a reasonable doubt: R. v. B.D., 2011 ONCA 51.

Assessing Credibility

27In R. v. A.M., 2014 ONCA 769 at paras. 9-15 the Court of Appeal for Ontario set out some of the key principles when assessing credibility, at paras. 9-15. These include the following:

• Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate.

• No inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards.

• One 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. 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.

• 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.

• 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. A trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses.

• Prior consistent statements of a witness are not admissible for their truth. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable.

28I must carefully assess the complainant’s credibility; the standard of proof remains the same for offences involving children. However, a flaw, such as a contradiction, must be considered in light of the complainant’s age at the time of her testimony and when the events occurred: R. v. B.(G.), [1990] 2 S.C.R. 30; R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134.

Positions of Counsel

The Crown – Mr. Rothman

29Mr. Rothman, for the Crown, urged the court to accept the complainant’s core allegations. While Mr. Rothman acknowledged that internal and external inconsistencies can be relevant, the standard of proof applies to the evidence as a whole. The Crown says that I should consider the complainant’s evidence in the context of her age at the time of the offences, at the time of her police statement, and at the time of her testimony, in accordance with R. v. B.(G.) and R. v. W.(R.). The Crown accepts that she got some details wrong, but she never forgot what happened to her.

30Mr. Rothman says Mr. Selvarasa’s evidence should not leave me with a reasonable doubt. The fact that Mr. Selvarasa uttered a forged document and committed perjury has a significant negative impact on his credibility. Mr. Rothman reiterated his previous position that he would not rely on the forgery as post-offence conduct; it cannot be a makeweight. Mr. Rothman also asserted that the explanation Mr. Selvarasa provided about the letter did not make sense.

31Mr. Rothman argued that Ms. Carmel’s evidence was not reliable. There were also credibility concerns as she purported to be watching the children at all times, which is not realistic. A. also had reliability issues, as she was a year younger than the complainant at the time of the events at issue, but purported to remember specific things from that time that would have been mundane. A. answered many questions based on habits, and appeared to be guessing. Some of the questions in direct were somewhat leading, reducing the evidentiary value of her answers.

32On the issue of unlawful confinement, the Crown argues that it is necessary to consider all the circumstances. The complainant’s allegation that the accused propositioned her in a bathroom and then exposed himself would amount to unlawful confinement. That would have been a terrifying experience, particularly for a young child. The psychological intimidation is sufficient to make out the offence.

The Defence – Ms. Guo

33Ms. Guo argued that there was a lack of opportunity for Mr. Selvarasa to commit the offences, because he worked very long hours and because there were always many people in the relatively small apartment. He was normally out of the house working, and when he did not work on a Sunday, the family would spend time together. Moreover, the events described would have been extremely risky actions, given the size of the apartment and the number of people in it.

34The defence also pointed to various issues with the complainant’s evidence. For example, the complainant initially said that the abuse happened when she was eight or nine, but then said it had to occur before her seventh birthday party in October 2017. Ms. Guo also suggests that the complainant lied about her relationship with A, and about whether the complainant’s siblings went to A.’s apartment to play. Ms. Guo provided a detailed chart highlighting various problems with the complainant’s evidence, including inconsistencies with her police statement and with her mother’s evidence.

35Mr. Selvarasa testified that he was never in the apartment when the complainant was in there, and the evidence of his wife and daughter supported this. Moreover, in 2016 and 2017 Mr. Selvarasa was working 3 pm to midnight. Ms. Guo says that Mr. Selvarasa’s explanation about why the Unico letter was created makes sense. She further argues that the fact that he has pleaded guilty to forgery, uttering a forged document, and perjury add credibility to his evidence about what happened with the letter. Ms. Guo argues that the video of Mr. Selvarasa’s police interview shows that he was shocked when confronted with the allegation.

36While Ms. Guo argued that the defence evidence was credible and reliable, she also took the position that even if that evidence were rejected, the complainant’s evidence cannot meet the standard of proof beyond a reasonable doubt.

37On the unlawful confinement, Ms. Guo argued that the alleged event in the bathroom did not constitute psychological or physical restraint.

Analysis

38In the first part of my analysis, I will address what I consider to be the more significant issues raised about the complainant’s testimony, as well as the other key issues in this case. I will then address credibility. In my discussion of the complainant’s credibility I will discuss some of the other issues raised about her evidence.

Location of the alleged events

39The complainant testified that the first incident occurred in a playroom in A.’s home. At trial, she provided the following description:

They had like – they had two closet – they had a closet with like toys inside and then they had this big couch, not really like a couch ‘cause it could turn into a bed and all they had was toys, that’s all, and the couch was black.

40In cross, the complainant said that there were no toys in the living room, because they were in the playroom. However, there were toys visible in some of the videos entered into evidence at trial. The complainant said that A.’s brother tended to take toys out of the playroom and into the living room, and sometimes the mother would get angry.

41Contrary to the complainant’s evidence, Ms. Joseph said she never told her children that they could not have toys in the living room. She said the children always played in the living room. Mr. Selvarasa, Ms. Joseph and A., to varying degrees, denied the existence of a playroom. Ms. Joseph also said the children were not allowed in the storage room. However, Mr. Selvarasa, Ms. Joseph and A. all agreed that there were toys in the storage room.

42Ms. Joseph testified that the children did not go into the storage room. However, she also acknowledged that her son would go in there to get his toys. She said the toys were right by the entrance and he would grab them and come out.

43This issue is potentially significant. It could undermine the complainant’s credibility and reliability. She gave specific evidence about going into a different room with A. and being placed on her stomach. It is also significant because if A. and the complainant were in the living room, that would have been a very brazen location for Mr. Selvarasa to commit the offence described. The living room was an open concept area that linked to the kitchen and the hallway. From the front door there was a clear view to the dark couch in the living room.

44The Crown submits that this is an issue that I need to address, but it is not determinative. The Crown relies on R. v. A.G., 2000 SCC 17 in support of its position. See also R. v. R.F., 2022 ONCA 777 at para. 13.

45I take the view that this issue does not fundamentally undermine the complainant’s evidence. First, the precise location of the offence described is not essential to accepting the complainant’s evidence, given her age at the time of the events at issue, at the time of her police statement, and at the time of trial. This evidence relates to the type of detail that a young person might not be able to recount. Second, all the defence witnesses accepted that there were toys in what they called a storage room. Regardless of the purpose of the room, a young child could perceive it to be a playroom. Finally, I am hesitant to rely on the defence evidence on this point. I will discuss my general credibility concerns further below. On this particular issue, I note that Ms. Joseph was quite categorical about the children not going into the room, but then acknowledged that her son did go in there to get his toys.

Motivation to Lie: Tik Tok and A.’s house

46I address this issue not because it caused me any real concern about the complainant’s credibility, but because it consumed a considerable amount of trial time.

47There were repeated suggestions in cross-examination that the complainant was motivated to make the allegations because of animosity between her and A. Many of these suggestions related to the use of social media, particularly Tik Tok.

48The complainant agreed that her Tik Tok account had been shut down several times, and she lost followers. She said it was shut down because of her age at the time. I accept the complainant’s evidence that she never suspected A. of reporting her Tik Tok account, causing it to be shut down.

49Mr. Selvarasa gave evidence that some of A.’s Tik Tok videos received thumbs down comments in 2022. They could not tell who made the negative comments. The complainant stated that she never left any demeaning comments on A.’s Tik Tok account.

50I accept the complainant’s testimony that she was “never jealous of [A.] in any type of way” and that she had nothing against her. She described A. as a nice person and a good person.

51Similarly, I reject the suggestion that the complainant was jealous of A. because her family moved to a house in Brampton. I accept the complainant’s evidence when she stated: “I’m so happy the way I live. I have no reason to be jealous of the way she lives. I have no reason to be jealous of her.”

52Of course, the defence has no obligation to explain why the complainant made the allegations. The burden of proof is always on the Crown.

Opportunity: Mr. Selvarasa’s work schedule

53The offences are alleged to have occurred between 2015 and 2019. The evidence on when the friendship between the complainant and A. started was a bit unclear. Ms. Joseph said they moved to the Kipling apartment in 2016, but her evidence on dates was poor. She thought they moved in the summer. There was photographic evidence that A. attended the complainant’s 7^th^ birthday party and the complainant attended A.’s 6^th^ birthday party, so the girls were friends before October of 2017. The complainant initially thought the offences occurred when she was about eight, but agreed on cross-examination that she was probably younger. AT said that her family moved to the 8^th^ floor in September of 2019. The evidence was inconsistent on whether the complainant still played at A.’s house after they moved to the 8^th^ floor.

54It was common ground that Mr. Selvarasa worked long hours. My understanding is that the defence position is that his work hours meant he had a very limited opportunity to commit the offences; the evidence about his work schedule does not provide a complete alibi. (The defence evidence was consistent that Mr. Selvarasa was not in the apartment at the same time as the complainant. I will address that related but distinct issue regarding opportunity in my credibility assessments.) The Crown notes that there were only three alleged incidents, and that they were of relatively short duration. Mr. Selvarasa did not need to be home for any significant period of time in order to have an opportunity to commit the offences.

55Mr. Selvarasa was home on long weekends. On Saturdays and Sundays, he did not normally work at Unico, but he did work at his cleaning job, starting at around midnight and returning home at 5:30 am. When it was busy, he also sometimes worked at Unico on Saturdays. There would have been many occasions that Mr. Selvarasa would have been home on the weekends. The defence evidence was that they did family things on Sundays. Ms. Joseph also said that the children did not play in the house on weekends, they played outside. Her evidence on that point strikes me as odd, and an overstatement.

56Some of the complainant’s evidence indicated that the events happened after school, and not on a weekend. However, timing is the sort of thing that a child might not accurately recount. This is particularly so given that the complainant went to A.’s to play on many occasions. It seems unlikely that she could remember the day of the week. Moreover, Mr. Selvarasa accepted that there were times when he would have called in sick, and there were times in 2016 and 2019 that he worked the day shift at Unico, and not the afternoon shift. Although I note that the times in 2016 that he worked the day shift might have been before the girls began to play together. The work records entered as Exhibit 9 were not as clear for 2016 and 2017 as they were for 2019.

57The complainant stated toward the end of her cross-examination:

But he – those situations did happen. I don’t know when – like I can’t say it was on a Tuesday, I can’t say it was on a Wednesday ’cause I don’t know an exact day, but they did happen.

58While I accept that Mr. Selvarasa’s long work hours limited his opportunities to interact with the complainant, this does not fundamentally undermine her evidence.

Opportunity: The presence of others in a small apartment

59Mr. Selvarasa’s apartment was relatively small. A. had a younger brother and the complainant had a younger brother and sister who would join her when she went to play at A.’s home. Videos at trial showed how the children filled the main space. Ms. Joseph testified that she watched the children when they came to play.

60There is no question that the presence of others in the apartment would have reduced Mr. Selvarasa’s ability to commit the alleged offences undetected. However, I conclude that this does not fundamentally undermine the complainant’s testimony. The allegations involved three alleged incidents of relatively short duration. I do not accept the defence evidence that the complainant was always accompanied by her siblings when she came to play. That evidence appears to be an overstatement, given the number of times that the complainant was in the apartment and the proximity of the two friends. Even if they were present, the young ages of the children provided some protection for Mr. Selvarasa. The complainant testified that, at the time, she thought what had happened was a game. Relatedly, such brazenness is not so unusual as to be improbable: R. v. T.G. 2018 ONSC 3847 at para. 111; R. v. Santos-Medeiros, 2015 ONCJ 396 at para. 70.

Unlawful Confinement

61The defence argued that the events narrated by the complainant in the bathroom, even if accepted, did not constitute unlawful confinement. The complainant said that Mr. Selvarasa directed her into the bathroom, where he asked her to touch his penis. I am satisfied that the events she described in the bathroom, if true, meant that she was “coercively restrained or directed contrary to [her] wishes, so that [she could not] move about according to [her] own inclination and desire”: R. v. Sundman, 2022 SCC 31 at para. 21. Mr. Selvarasa was an adult and the complainant was a child. He was much bigger than her. It was his home. He had directed her into the bathroom.

Credibility

62I have already addressed some of the evidence that is relevant to my credibility analysis. I expand on my credibility analysis below.

The Complainant

63There was confirmatory evidence about some of the surrounding circumstances addressed in the complainant’s evidence. It was common ground that the complainant played in A.’s home on multiple occasions. AT confirmed that she asked A.’s mother to take her to school a few times (although AT did not address who actually drove them).

64There was evidence that the complainant told a friend, her mother and her doctor about the allegations. Out of court statements are hearsay. Prior consistent statements are presumptively inadmissible because they lack probative value. Repetition is not probative of truthfulness. I consider this evidence for the narrow purpose of narrative. The evidence explains how these alleged events came to light. The complainant said that at the time the events took place, she did not understand them because of her age. This narrative evidence also provides some general context for the timing of the events at issue. See R. v. Khan, 2017 ONCA 114 at paras. 25-40.

65The complainant’s evidence had a number of inconsistencies, changes, things she could not remember and errors on a variety of matters. For example:

• She thought that A. was older than her, but A. was actually a year younger.

• The complainant initially said the incidents occurred when she was eight or nine, but agreed on cross-examination that they occurred before her 7th birthday party.

• The complainant said her siblings never went to A.’s house to play, but then acknowledged that a video showed all five children playing in the apartment.

• The complainant initially said that she and A. were very close, but at trial said they weren’t close.

• Her evidence on the playroom incident changed on whether they were playing in the living room and the father called her or them into them into playroom, or they were in the playroom.

• The complainant could not remember whether she left right after the playroom incident, or played with A. for a while before leaving.

• The complainant’s evidence varied on the timing of the three incidents in relation to one another.

• The complainant could not remember if the door was open or closed during the playroom incident.

66For some of the issues with the complainant’s evidence, she provided an explanation, or an elaboration that limited any inconsistency. For example, in terms of the nature of her relationship with A., she stated later in her cross-examination that even though they weren’t that close, A. was always a good friend. The significance of any discrepancy on that point was also minimized by the complainant’s age when she gave her statement and when she testified at trial. For other issues, they concerned details that a 14-year-old might not be able recount about events that had occurred years earlier: R. v. B.(G.); R. v. W.(R.); R. v. P.J.C., 2025 ONCA 196 at para. 41. There were also times where I did not accept a characterization suggested by the defence. For example, in my view, there was nothing about the evidence of the ruffled hole in the boxer shorts that I found to be unlikely, implausible or bizarre.

67In the first part of my analysis, I specifically addressed the issues with the complainant’s evidence that I viewed as most significant. In sum, none of the other potential concerns with her evidence – separately or cumulatively – led me to question her evidence on the core of the allegations.

Mr. Selvarasa

68Mr. Selvarasa testified that Exhibit 5 was a letter that he had requested from HR at Unico that set out his works hours between March 21, 2016 and October 5, 2021. During that time he worked from 3 pm to 11:30 pm. As previously noted, Mr. Selvarasa pleaded guilty to forgery, utter forged document and perjury, in relation to the letter.

69When he was recalled, Mr. Selvarasa testified that it was true he worked the hours set out in the letter. He said that when the trial was approaching, he thought he should get a letter setting out his work hours. One to three weeks before trial, he and his wife tried multiple times to contact Unico to obtain a letter about his work hours. He then recalled that he had a letter from Unico with the letterhead on it. He scanned that letter and created the letter that was made Exhibit 5. He thought they could use the scan to get a letter from Unico, either by having a Unico employee sign it or use it to create a new letter. However, when he showed the letter to his previous lawyer, she thought it was an original and submitted it to the court. He did not think his lawyer was going to show the letter to the court that day. He thought he had time to call his lawyer, tell her it was fake, and ask her to get an original. He had not informed his lawyer that the letter was fake when he gave it to her. Mr. Selvarasa did not say anything when the letter was shown in court because he thought it might cause trouble for his lawyer.

70Mr. Selvarasa initially said that Unico did not respond when he tried to contact them, but then said that he was later able to reach his HR worker. She told him that some of the records of employment had been deleted. Mr. Selvarasa also testified that he told his lawyer to get a letter from Unico and he thought she had done so.

71Mr. Selvarasa said it was true that he worked at Unico at that period of time, but he did not have any other means to prove it. Mr. Selvarasa testified that he worked evenings from 2016 to 2019. He testified that he made a mistake in the letter, because he was tense. Mr. Selvarasa was asked in direct if the contents of the letter were inaccurate. He explained that there was a period of time that he worked for three days one week in the morning. He worked the day shift in 2019 when he became a grade 5A maintenance assistant. He did not put that in the forged letter because he was in a hurry to submit the letter. His employment records show him working the day shift for a period of time in May and June of 2016 before he switched to the 3 pm to midnight shift. In cross-examination Mr. Selvarasa said that he worked overtime, until 8 or 10 pm, for some of those dayshifts in 2016. Mr. Selvarasa also explained that the 2019 error in the fake letter did not relate to the time period of 2016-2018, which was relevant to the allegations. He said he pleaded guilty when he realized that what he did was wrong. He also submitted that he often worked as an Uber or Lyft driver after his shift in 2019.

72I have serious credibility concerns with Mr. Selvarasa’s evidence. Whatever his intention may have been in creating the letter, he allowed it to be submitted to the court as evidence. His position seems to have shifted from saying that the hours stated in the letter were accurate, to saying that there were errors but that the errors were not significant. At minimum, this shows a very loose commitment to accuracy when giving evidence in court. Consistent with the Crown’s position, I limit my consideration of the fake letter to my credibility assessment. I have not considered it as post-offence conduct. I have not considered it to support an inference of guilt.

73Quite apart from the letter, I had other concerns with Mr. Selvarasa’s evidence. He was sometimes categorical about mundane matters that would not have had significance at the time on his version of events. For example, he testified that he was not in the apartment at the same time as the complainant when he was awake. He also testified that he did not tickle his daughter in 2016 or 2017. While neither of those statements are impossible or implausible, the unqualified nature of his responses leads me to approach his evidence with caution.

74I accept that I can consider Mr. Selvarasa’s reaction to hearing the complainant’s name during his police interview, as urged by the defence in reliance on R. v. Edgar, 2010 ONCA 529. However, his reaction did not seem to me to one of genuine shock. That portion of the video did not assist me in my credibility assessment.

Ms. Joseph

75At times, Ms. Joseph was not responsive in her answers. She appeared to be focussed on what she wanted to tell the court, as opposed to responding to questions. This happened frequently during cross-examination, but also in direct. For example:

Q. Okay. So did you ever have what’s called a playroom with a couch that opens as a bed and toys in that playroom?

A. I do not send the children to that room because they can fall down, they can – you know, there are other stuff there, they can climb and fall down. So I never let the kids go into that room.

76There were also times that her evidence was categorical about matters that, while plausible, would not have been significant at the time. Her evidence at times seemed to me to be overstated. For example, her stated ability to watch the children at every moment was undermined significantly in cross-examination.

A.

77A. also provided categorical responses about events that there would have been no particular reason for her to remember. It would also have been somewhat surprising for her to have remembered, given her age at the time the events took place. In cross-examination she agreed that if there was something she remembered from when she was 5 or 6, it would likely be something major. There were times when A.’s evidence sounded rehearsed.

Conclusion

78This case turns on credibility. The 14 year old complainant was rigorously cross-examined over a period of three court days. She remained solid on the core of the allegations. Indeed, she was vehement that these events took place. She stated:

• It’s her dad that actually ruined me, like how are you a grown man and how – like I’m your – I’m literally your like daughter’s friend. I – I feel that I was safe at your house but, no, you – you touch me inappropriately, you shouldn’t – he should have not done that ’cause he’s a grown man and he had the right to not touch me like that, and I had no reason to be touched like that ’cause that’s just wrong and he knew that, he knows that himself. He knows that himself. It’s wrong to touch someone like that.

• It’s disgusting. It’s honestly disgusting. And coming from a grown man too… Deep down he knows what he did. He may not admit it but he knows what he did.

79I am aware that I must not rely too heavily on demeanour evidence: R. v. J.M., 2023 ONCA 472 at para. 3. I have considered the complainant’s evidence as a whole, and in the context of the other evidence at trial. I have considered all of the evidence as whole, while remaining aware of the burden of proof beyond a reasonable doubt that always remains on the Crown. See: R. v. Berg, 2026 SCC 21.

80I do not believe Mr. Selvarasa’s denial of the allegations. I do not accept any of the defence witnesses’ evidence that Mr. Selvarasa was never in the apartment at the same time as the complainant. None of the defence evidence leaves me with a reasonable doubt about any of the elements of the three offences charged. On the basis of the evidence I accept, I am satisfied beyond a reasonable doubt by that evidence of the guilt of Mr. Selvarasa, on the three counts in the indictment.

81I find that the “playroom incident” and the “bedroom incident” both occurred. I find that on both occasions Mr. Selvarasa put his penis in the area of the complainant’s buttocks. Since the complainant testified that it did not hurt at all, given her age at the time and their relative sizes, I do not find that he penetrated her anus on either occasion. Both incidents constitute sexual interference pursuant to s. 151(a).

82I find that the “bathroom” incident occurred. I find that Mr. Selvarasa told the complainant to touch his penis. That incident constitutes an invitation to sexual touching, pursuant to s. 152(a). That incident also makes out the offence of unlawful confinement, pursuant to s. 279(2)(a). The complainant was both physically and psychologically restrained when she was in the bathroom.

83Mr. Selvarasa is convicted on all three counts in the indictment.