R. v. O.O., 2026 ONSC 3584

COURT FILE NO.: CR-24-50000440-0000

DATE: 20260618

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

O.O.

David Spence, for the Crown

Ernest Guiste, for the Accused

HEARD: Oct. 20-24, 27, 29, 31, November 14 2025; December 29, February 4, March 9-13, May 4, 2026

REASONS FOR JUDGMENT, ABUSE OF PROCESS, AND SECTION 11(B)

This matter is subject to a publication ban pursuant to s. 486.4 of the Criminal Code

WASSENAAR J.

Background and allegations

1Mr. O. faces five counts alleging physical abuse against his two sons. I will refer to the older son as E.¹ and the younger son as M. The charges are:

Count 1 – assault of E. with a belt, 2013 to 2021

Count 2 – assault of E., 2013 to 2021

Count 3 – assault of M. with a belt, 2016 to 2021

Count 4 – assault of M. with an object resembling a baseball bat, 2016 to 2021

Count 5 – assault of M., 2016 to 2021

2The Crown concedes that it cannot make out count 4 beyond a reasonable doubt.

3This matter was originally scheduled as a jury trial, but Mr. O. re-elected judge alone before me. At trial, the Crown called E., M., their mother, and Constable Agostinho. The statements E. and M. gave on November 29, 2022 were entered into evidence pursuant to s. 715.1. The defence called Mr. O. and three Children’s Aid employees.

4The trial began in October of 2025. On the second day of E.’s evidence he was asked during cross-examination if his mother examined his body. E. said that she did, and she would take pictures of some of the marks that were still there “to send them as evidence”. E. said that happened in 2022 or after. E. said he was pretty sure she sent them to the police. This prompted an inquiry, and it was revealed that the mother had sent photos to the police, but they were never provided to the Crown or defence. The defence applied for an adjournment, which was granted. Additional trial dates were set, and the trial resumed on March 9, 2026, for five days.

EVIDENCE AT TRIAL

The oldest son, E.

5E. was 12, and in grade 7, when he began his testimony in October 2025. He lived with his mother and younger brother. E. no longer calls Mr. O. “dad”; he calls him “the man”. His mother did not tell him to do that. He came up with it himself because he did not like talking about what happened.

6E. was nine and in grade 4 when he gave an interview to Officer Agostinho on November 29, 2022. He was also living with his mother and brother at that time.

7E. said the man whipped him with a belt and a wire, too many times to count. There were marks on his body as a result. The first time he was whipped with a belt, the family lived in the basement of a house. He thought this was before M. was born, but if not, then “a little bit after”. The man hit him on his legs and back, as well as his arms and on his face near his eye. The mark on his eye was from being hit. The wire was black, and it looked like a tablet charging wire.

8In grade 1 or 2, the family, including M., moved into an apartment. M. was four years younger than E. The man whipped him with the belt before the move. E. was “pretty sure” the man also whipped him with a wire before the move, but he was not 100% sure. After moving, the man whipped him with both a wire and a belt.

9On one occasion, the man hit him when the family was driving to church. E. was sitting in the back. He told his dad he was driving over the speed limit. His dad stopped the car and then hit E.

10E. said the man used to make him bow. He would wake him up in the morning and make E. bow. When he was asked how he felt about having to bow, he said “[m]ostly tired because I didn’t get to fully wake up when I bow”. If E. forgot or refused to bow, the man would whip him.

11E. showed the officer some of the marks on his body that had been caused by his father. E. confirmed that a mark the officer noticed near his eye was caused by his father. (Photographs 4 and 5, of Exhibit 7)

12E. said the man struck M. with a wire and a ruler. He thought the man used a belt on M. at least once. One time M. was bleeding after getting hit with a ruler. E. saw the man strike M. in “the private part”. One time he asked E. to get a belt for him, but his mother stopped him.

13The man also made M. bow. If M. did not bow, the man would whip him, but E. was “pretty sure mom stopped him most of the time”.

14E. thought the last time the man whipped him was “late grade two”. E. thought the man stopped whipping him when he saw that E.’s mother was taking action, by telling others. E. agreed that these events came to the attention of police because of his mother.

15E. made two videos. He thought the man moved out of the apartment shortly after the first video.

16Neither E. nor M. ever played baseball. They never owned a bat.

17E. told people at school about the hitting and he got in big trouble afterwards. He got hit with the belt. In cross-examination, E. was asked if he remembered telling people at school that his father hit him with a belt and his mother struck his face with a closed fist. He said not really. He was pretty sure he only talked about his father. He denied telling anyone at school that his mother punched him with a closed fist in the face. He made the complaints because the man was whipping him with a belt.

18His mother would physically discipline them, but he was pretty sure it was just a light spank on the bum. E. agreed that she has also pinched his ear, and said she still does that. His mother did not punch him. His mother would yell at him.

19Sometimes E. would run around the house, run into something, and injure himself. It would result in a bruise or a nick or a cut.

The younger son, M.

20M. was nine at the time of trial.

21M. told “Officer Mike” that he did not want to talk about his dad because he was mean. When his dad lived with them things were not good. His dad hit him on the back for no reason. M. said his dad hit him with a “b---”. In the video, that word was difficult to understand. The officer asked a variety of questions in an effort to determine what M. was saying. He also asked M. to draw what he was saying (Exhibit 22). M. later said that his dad hit him with a baseball bat. The officer asked if his dad hit him with anything else, and M. said a baseball bat and a belt. The officer confirmed that M. said a belt and a baseball bat; M. agreed. At the end of the interview, the officer pointed to the picture M. had drawn and said “so that is your baseball bat”. M. said no, I don’t have a baseball bat. The officer asked what the picture was, and M.’s response was somewhat unclear but the officer interpreted him to say baseball bat. M. agreed with the officer’s clarification that it was a baseball bat.

22M. said he started crying when his dad hit him on the back. He started bleeding. M. said his dad hit him in the shoulder with a “b---”. M. said his dad also hit him on the knees and on the head; there was a tiny bit of blood on his head. M. said his dad hit him on the leg when he was in the car. Sometimes his dad used the belt in the car. His dad also hit him with an open hand.

23M. testified that his mom was in another room when his dad hit him with a belt. She came rushing in when she heard.

24If his mom punishes him, she makes him face the wall or go to his room.

Officer Micheal Agostinho

25Mr. O. was arrested on April 26, 2021 on another matter. The police took a statement from E. on April 26, 2021, but not from M. No charges were laid at that time in relation to the boys. Both boys gave statements on November 29, 2022. Officer Agostinho took photographs of E. the day after the statement, in E.’s home (Exhibit 7).

26In December of 2022, Ms. O. sent Officer Agostinho photographs of the children. He downloaded them onto his computer. He thought he had uploaded them to be disclosed, but he had not. They were disclosed about three years later, during the trial.

27Officer Agostinho said the children went to the SCAN unit at Sick Kids. Usually the SCAN unit takes photos and prepares a report. Officer Agostinho did not know if they did take pictures. He did not remember getting a report from SCAN.

The mother, Ms. O.

28Ms. O. came to Canada with E. when he was eight months old, in October 2013. They lived in a shelter for a period of time. The first place she lived with Mr. O. in Canada was in the basement of a house on Martins Road. Later they lived in an apartment on Mabelle Avenue.

29Ms. O. observed Mr. O. physically abuse E. E. had marks on his body. Mr. O. hit E. when they lived in a basement on Martins Road, and when they lived on Mabelle Avenue. Ms. O. said Mr. O started hitting E. in 2016, and started hitting M. a bit later. Ms. O. saw Mr. O. hit E. with a belt and with a wire. The wire was a phone wire for charging.

30One time E. told people at school what was happening. When E. came back he was really beaten, so he stopped saying it.

31On another occasion, E. was sleeping and Mr. O. took off his pants, lifted E.’s legs and hit him with a belt. E. sustained injuries. Ms. O. did not take photographs at that time, but she took many photographs later and gave them to police. Ms. O. said there were years of abuse and many marks. Exhibits 11, 13 and 17 show marks on E.’s body. Ms. O’s phone associated the photographs with the location 25 Mabelle, on various dates between May 20 and 23, 2021. Exhibit 10 is a photograph of the wire Ms. O. said that Mr. O. used to hit E.

32Ms. O. said sometimes E. would get hit because he did not bow and say good morning. Ms. O. said Mr. O. used to beat the kids when they went to and from church in the car.

33M. was also abused, but it was different than with E. Ms. O. did not see Mr. O hit M. but she heard him scream and then she would come to see what had happened. M. could not tell her because he had speech issues. E. would have to interpret what M. said. Mr. O. could use a ruler in her presence, but he did not really hit M. in her presence. She did see Mr. O. hit M. with the ruler, but not with a belt or wire. Ms. O. observed injuries on M. The ruler made M. bleed. Ms. O took a photograph of M. that she said showed a mark on his arm (Exhibit 16). There was a time that Mr. O. hit M. in the private parts.

34Ms. O. disciplined the boys but she did not hit them. She told them to face the wall or go to their room. She did spank E. when he was young.

35Ms. O was cross-examined on Children’s Aid records.

36Ms. O. was asked about an incident with a paintbrush at E.’s daycare. It was difficult to understand her response. She said she was not violent and she did not remember. She appeared to acknowledge there was an incident at the daycare, but it was different than what was suggested to her.

37Ms. O. was asked about an incident in the records where a neighbour heard her say she would kill E. She said she would not threaten her own son. She said the only time Children’s Aid came was when Mr. O. was beating the children.

38Ms. O. was asked about an incident in the records where a neighbour reported that E. appeared to be locked in a room. Ms. O. said she did not do that kind of stuff to her kids.

39Ms. O. was asked about a report that E. told the school she hit him with a closed fist. She said she did not hit her kids.

40Ms. O. did not remember coming as a refugee to Canada, and having trouble with Mr. O.’s family, but she could not really recall. Ms. O. denied lying in her immigration application. Ms. O. did not recall applying for Mr. O. to come to Canada. Ms. O. did not recall what year she graduated from university. She repeatedly responded that it was a long time ago in relation to many questions. She appeared unable to explain the circumstances of Mr. O.’s arrival in Canada. She said she did not bring him to Canada. She said she did not have a good memory of these events, but she seemed to agree that at some point she added him to her claim. She agreed that her initial refugee claim was rejected. She agreed that her claim on humanitarian and compassionate grounds was allowed. She agreed that she swore an affidavit on March 7, 2015. She also agreed she signed a declaration on November 14, 2014.

41Ms. O said she worked in Canada until Covid.

Mr. O.

42Mr. O was born in Nigeria. He met Ms. O there in 2002. After about 10 years they got married. E. was born in 2013. Ms. O. and E. came to Canada in October 2013, and Mr. O. joined them in December 2014. His refugee application was denied, but he was admitted on compassionate and humanitarian grounds. Ms. O. sponsored him.

43Mr. O. said that he did not remember Ms. O. working. She may have worked for a short period of time. When Mr. O. came to Canada, Ms. O. was on welfare. When he started working the welfare amount went down, making her upset, and they argued. After M.’s birth the marriage was not good. He was working two jobs.

44If he wanted to discipline his sons, Mr. O. would take away an electronic device or limit television privileges, or make them face the wall. He never hit them.

45Mr. O. described each child’s personality and what they liked to do. He recounted with emotion the day of E.’s christening as the happiest day of his life.

46Ms. O. would make threats to get him a criminal record and send him back to Nigeria.

47He said Ms. O. complained about their sexual relations and they argued; he had erectile disfunction.

48When asked about the alleged abuse, Mr. O. stated:

These are all lies. I love my son. [E.] and M., I love them more than my life. I can’t do that to them. And I can’t accept - I won’t accept that from anyone. All fabrications. They’re all lies.

49Mr. O. denied hitting E. on the way to church. He denied waking them up and hitting them. He denied whipping anyone with a cord. He denied the bowing ritual.

50There was no baseball bat in the house.

51Mr. O. reviewed the photographs taken by Ms. O. and sent to police. Some did not show any marks. He had no knowledge of the cause of any of the marks that could be seen. There was no way to determine whether the phone cord in Exhibit 10 was his or his wife’s as they had the same phone. When he left the home on Sunday April 25, 2021 he took his phone cord with him. He never hung his phone cord in the bathroom.

52E. played rough and would run around and could get injured as a result. M. was calmer.

53On one occasion, Mr. O. heard E. scream. He said his mom had pinched him with her nails. Mr. O, told her not to do that again.

54In re-examination he testified that it was very possible that the marks on E. in Exhibit 11 were from a marker applied by Ms. O.

The Children’s Aid employees

55Sonia Vieira was employed by the Catholic Children’s Aid Society (“CCAS”). Counsel put a number of parts of the CCAS records to her. The incidents referred to were part of the case history.

56Stella Boiani also worked for CCAS. She had some involvement with the family in 2018. She testified that her involvement “only included creating the document after having received the information from the referral source”. She was an intake screener, not an investigator. She received a call from a teacher who said that E. had reported that his parents hit him. Exhibit 26 was a page from the record she created dated November 15, 2018. She also acknowledged another entry on May 2, 2019 detailing a report from an early childhood educator (Exhibit 27). On May 3, 2019 Ms. Boiani recorded a conversation with Ms. O. in which she said neither parent hits the children. Ms. O. said her husband would never do that and if he did she would report it to the authorities.

57Ann Marie Ferguson was also employed at CCAS. She had a visit with the family after a referral from the school when E. disclosed being hit. At the visit, E. did not disclose any physical discipline from his parents.

REASONS FOR JUDGMENT ON THE TRIAL PROPER

General Legal Principles

Onus and Standard of Proof

58The Crown bears the burden of proof. The standard the Crown must meet is proof beyond a reasonable doubt. I am governed by the principles of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. While typically set out as a three or four step analysis, as the Court of Appeal 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].

59I must be careful to avoid a credibility contest: R. v. Berg, 2026 SCC 21 at paras. 3, 10.

60I must “consider whether the accused’s evidence, considered in the context of the evidence as a whole, leaves [me] with a reasonable doubt as to his guilt”: R. v. Ruthowsky, 2024 ONCA 432 at para. 6; see also R. v. Berg, 2026 SCC 21 at paras. 3, 11. The principles in W.(D.) also apply to evidence other than that of the accused: R. v. B.D., 2011 ONCA 5 at para. 114; R. v. R.L., 2025 ONCA 691 at para. 10.

61In 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. 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.

• I should consider internal and external inconsistencies. I should assess whether any inconsistencies are material or peripheral.

• 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.

62I must carefully assess the complainants’ 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 testifying and when the events occurred: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

Positions of Counsel

63Mr. Spence for the Crown says that this case turns largely on the credibility and reliability of E. and M. Mr. Spence says that there were no material internal inconsistencies in the complainants’ evidence. Mr. Spence also noted parts of the testimony of each complainant that were supported by other witnesses. Mr. Spence accepted that there was nothing in the substance of Mr. O.’s evidence that would require the court to reject it. However, when assessed in the context of the evidence as a whole, Mr. O’s evidence should be rejected. Mr. Spence says the Crown has proven all the elements beyond a reasonable doubt.

64Mr. Guiste on behalf of Mr. O. says that Ms. O.’s evidence is totally not credible. It is illogical, exaggerated, calculated and malicious. Mr. Guiste says that Ms. O. was in total control of the complainants, and their evidence demonstrated that. The shirt that E. is wearing in Exhibit 11 supports that theory. The reason E. was interviewed twice was not because he was scared the first time, but because “the narrative created by [Ms. O.] required more work, more rehearsal and more refinement”. Mr. O testified in a “clear, dispassionate, logical and respectful fashion” and he was not shaken on cross-examination. His evidence should raise a reasonable doubt.

Analysis

65Before addressing credibility and reliability, I wish to indicate some things that I have not considered in my analysis:

• Some of the CCAS records referred to during cross-examination included allegations related to Mr. O. I have not considered any of the third party records in any way to incriminate Mr. O.

• There were times during the trial that prior consistent statements were referenced. This included the CCAS records, evidence about E’s report of abuse at school, and discussions that E. may have had with his mother. I have not considered any prior consistent statements as in any way supportive of reliability or credibility. I have considered whether the evidence that E. spoke to his mother might support the defence theory that Ms. O. was the driving force behind the allegations, and whether that evidence could raise a reasonable doubt.

• Mr. Guiste made references to other proceedings in which the mother was the complainant. There was also evidence that came out in Ms. O.’s cross-examination that could be construed as prior discreditable conduct. While I have considered the defence theory in my analysis, and whether this evidence could raise a reasonable doubt, I have not considered those other proceedings or any of Ms. O.’s testimony about Mr. O.’s other conduct as in any way strengthening the case against Mr. O. I have not engaged in any propensity reasoning.

E.’s credibility

66E. gave his evidence in a straightforward manner. Although there were limitations in E.’s ability to be specific about timing, he was able to provide a general time frame, linked to two places where the family had lived and the birth of his brother. Although E. provided a general description of ongoing abuse by his father, he was also able to be specific about a number of things. He recounted incidents that resulted from a failure to bow, a comment on his father’s driving, and telling someone at school that something was happening at home.

67E. was cross-examined at length, but held firm on his core allegations.

68E. remembered his mother taking pictures of marks on his body. E. thought the police also took photographs of him, but he was not sure. There was no expert evidence about the marks on his body in the photographs taken by his mother: R. v. Theriault, 2021 ONCA 517 at paras. 157-159. Standing alone, the photographs in Exhibit 11, 13 and 17 are not definitive. However, the marks, particularly those shown on E.’s upper leg in Exhibit 11, are not inconsistent with the abuse described by E.

69Ms. O. provided evidence that supported E.’s testimony. For example, she provided evidence about E. being required to bow, and said that Mr. O. would hit the children in the car on the way to and from church.

70Mr. Guiste argues that E. needed to be interviewed a second time in order to rehearse his story. E. said he did not tell the officer things in his first statement because he was scared. By the time of his second statement, his father was out of the house. I have considered this evidence as part of the narrative for his disclosure: R. v. Khan, 2017 ONCA 114 at paras. 25-40. I also note that E. denied going over the video with Boost workers or police. He viewed the video at the Boost office, not at home. E. acknowledged that he had discussions with his mom about what had happened, but he said they had not talked about it in a long time. E. said at the end of his police interview that no one told him what to say, and that it was the truth.

M.’s credibility

71M. had a unique cadence to his speech. Having reviewed the video and listened to M.’s evidence at trial, it sounds like M. was saying “belt”. However, this is somewhat unclear.

72The Crown has conceded that it cannot make out count 4, the charge of assaulting M. with a baseball bat. However, I must still consider the baseball bat evidence. The evidence at trial indicated that there was no baseball bat in the home. This leads me to exercise some caution regarding M.’s evidence, as M. said he was hit with a baseball bat.

73M. also had a limited ability to be specific about events and timing. In the context of his age, that is not unusual. Significantly, E. testified that he saw M. being abused by their father. Ms. O’s evidence also supported M.’s testimony.

Ms. O.’s credibility

74I had both credibility and reliability concerns with Ms. O’s evidence. Some of it was hard to understand. Her answers were often not responsive to questions. She frequently said she did not remember things that an adult might be expected to remember. As a result, I approach Ms. O’s evidence with extreme caution. I am not prepared to accept her evidence on a matter, unless it is confirmed by other evidence.

75Ms. O. was asked why she did not take photographs of the injuries when they were first inflicted. While many of her answers were difficult to understand, she seemed to fear retribution from Mr. O. She said he checked her phone. He had her password. She took the photographs from May 2021 that were entered into evidence, of the injuries and the wire, and gave them to the police.

76Ms. O. denied making up a story.

Mr. O.’s credibility

77Mr. O. gave his evidence in a calm and straightforward manner. He appeared understandably emotional when he discussed the day of E.’s christening.

78The Crown takes the position that “[t]here was nothing in the substance of Mr. O’s testimony or in the manner in which he testified that, standing alone, would require the Court to reject his evidence”. I agree²: R. v. Berg, 2026 SCC 21 at para. 6.

The CCAS witnesses

79I had no credibility concerns about the CCAS witnesses. However, the evidence provided by these witnesses was, for the most part, hearsay.

Conclusion on the Trial Proper

80E. and M. each testified that their father hit them. E. also testified that he witnessed his father assault M. Ms. O.’s evidence supported both boys’ accounts of abuse. The photo of E.’s upper leg taken by Ms. O. in May of 2021, although not definitive on its own, also supports E.’s evidence that his father hit him with a belt and a wire.

81E. was a credible witness. While M. was not able to provide as much detail and specificity as E., his evidence was also generally credible. The evidence of E. and M. was not so similar to each other and to Ms. O.’s to raise concerns that Ms. O. told the boys to make up the allegations. The evidence was generally consistent, among the three witnesses, about what was happening in the home. There were no material inconsistences, internal or external, in the evidence of E. and M. that caused me to question the core of their allegations when I consider the evidence as a whole.

82When I consider the evidence as a whole:

• I do not accept Mr. O.’s evidence that he did not abuse his sons;

• Mr. O.’s evidence does not raise a reasonable doubt;

• On the basis of the evidence that I do accept, I find that the Crown has proven the elements of counts 1, 2 and 5 beyond a reasonable doubt.

83See R. v. Berg, 2026 SCC 21.

84My findings in relation to each count are as follows.

Count 1 – assault with a weapon (a belt), E., 2013 to 2021

85E. testified that he had been whipped with a belt and a wire too many times to count. Ms. O. testified that she saw Mr. O. hit E. with a belt and with a wire. E. thought that the first time he was whipped was before M. was born, but if not, then “a little bit after”. Ms. O. said Mr. O started hitting E. in 2016. This count is made out beyond a reasonable doubt. I find that E. was hit with a belt multiple times, between 2017 and 2021.

Count 2 – assault, E., 2013 to 2021

86E. testified about other assaults. This count is made out beyond a reasonable doubt. I find that E. was whipped with a wire multiple times. I find that E. was hit on the way to church, and that he was whipped for failing to bow in the mornings. Those assaults occurred on multiple occasions, between 2017 and 2021.

Count 3 – assault with a weapon (a belt), M., 2016 to 2021

87This count requires the Crown to prove that Mr. O. hit M. with a belt. E. said the man struck M. with a wire and a ruler. E. thought the man used a belt on M. at least once. E. also said that one time Mr. O. asked E. to get a belt for him, but his mother stopped him. While it appears that M. said “belt” in his interview, there was a lack of clarity on that word. Ms. O. said the abuse was different with M. than with E., and that she did not see it but she heard it. This count has not been made out beyond a reasonable doubt as particularized. An acquittal should be entered on this count.

Count 4 – assault with a weapon (object resembling a baseball bat), M., 2016 to 2021

88The Crown acknowledges that an acquittal should be entered on this count.

Count 5 – assault, M., 2016 to 2021

89M. said his dad hit him on the back for no reason. M. testified that his dad also hit him on the knees and on the head. E. said Mr. O. struck M. with a wire and a ruler. M. said his mom was in another room when his dad hit him and she came rushing in when she heard. Ms. O. said that she heard M. scream and she came running in to see what had happened. E. testified that he saw Mr. O. use his hand once to strike M. in the private part. Ms. O. testified that M. had a lot of marks in his private area. Ms. O. said Mr. O started hitting E. in 2016, and started hitting M. a bit later. This count has been proven beyond a reasonable doubt. I find that there was more than one assault, but the events occurred with much less frequency than with E. They had started at least by 2020 and ended in 2021.

90Convictions are entered on counts 1, 2, and 5. Acquittals are entered on counts 3 and 4.

ABUSE OF PROCESS

91Mr. Guiste seeks a stay “pursuant to the common law doctrine of abuse of process or s.7 of the Charter on account of the frailties and unreliability of the evidence”.

92Cases warranting a stay of proceedings for abuse of process generally fall into two categories:

(1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and

(2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category). [citations omitted]

See R. v. Babos, 2014 SCC 16 at para. 31.

93The test for whether a stay of proceedings is warranted is the same for both categories:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. [citations omitted]

See R. v. Babos, 2014 SCC 16 at para. 32.

94The defence did not cite any cases in which a stay was granted “on account of the frailties and unreliability of the evidence”. In any event, as is apparent from my analysis convicting Mr. O. on counts 1, 2, and 5, I do not take that view of the evidence.

95The abuse of process application is dismissed.

SECTION 11(B)

Should I consider the s. 11(b) application?

96In R. v. Toole, 2026 ONCA 99 the Court of Appeal for Ontario held that a jury’s verdict of guilty does not render a trial judge functus officio for purposes of a s. 11(b) application. The Court stated at paras. 46-47:

However, I should not be taken as condoning what occurred in this case. Once trial dates are set, any s. 11(b) application an accused person may wish to bring should be brought and decided on a timely basis. In Superior Court proceedings, subject to the trial judge’s discretion, such applications must be scheduled at the latest 60 days before the first day of trial, as required by Part VI of the Consolidated Provincial Practice Direction Regarding Criminal Proceedings. In this case, compliance with the practice direction would likely have resulted in the application being decided well before the scheduled trial dates, thereby obviating the need for a trial.

Instead, an unnecessary six-day trial was held because the application was filed late, on the eve of the trial, and the trial judge decided that she would nonetheless hear it, but only after the trial was completed. In my view, this outcome is contrary to the efficiencies required by Jordan: see e.g., at paras. 40-43, 45, 116-117. The result was a complainant having to testify and undergo cross-examination unnecessarily, in this case for a second time, and a jury being required to hear and come to a difficult decision of guilt only to see the case stayed by the later ruling. Court time as well as the witnesses’ and jury’s time were, in effect, wasted. Such an outcome does not put the justice system in the best light. It was avoidable and should have been avoided. [footnote omitted]

97As I understand it, the s. 11(b) issue crystallized in the case at bar when, on November 14, 2025, the continuing trial dates were set for March 9-13, 2026. The court granted an adjournment on October 27, 2025. There were some discussions on the record in October of 2025 on the issue of s. 11(b). However, the s. 11(b) application was brought after the remaining evidence was heard March 9 to 13, including the continued cross-examination of E., and M.’s testimony.

98Despite my concerns about the propriety of the timing of the application, I allowed the application to be argued as the defence wished to make submissions on the trial proper and the abuse of process at a later date. However, when the s. 11(b) application was argued, many of the transcripts were not filed. Hearing an application that is not brought in a timely manner and with an incomplete record is inconsistent with the need for litigation to be conducted “in a fair, orderly, and efficient manner”. Spending precious court time on a trial that may not need to proceed if a delay application succeeds has a negative impact on “broader administration of justice concerns”. As does hearing evidence from two child complainants on a trial that would not need to proceed if the delay application succeeded. In my view, the interests of justice weigh against considering this delay application and I would therefore dismiss it: R. v. Kazman, 2020 ONCA 22 at para. 15.

Was there unreasonable delay?

99In case I am wrong on the issue of whether I should consider the application, I will address the merits of the application.

100R. v. Coulter, 2016 ONCA 704 framework set out in at paras. 34-41:

i. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

ii. Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

iii. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

iv. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

v. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

vi. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

vii. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

101As I understand it, the defence makes two arguments regarding delay:

• No delay can be attributed to the defence up to the time of the late disclosure of the photographs.

• The record shows that there was, in fact, no defence delay.

102The first argument relies on a combination of R. v. Jordan, 2016 SCC 27 and R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. Mr. Guiste argues that “the Crown has no credible basis to attribute blame for delay when a defendant asserts their rights under s. 11(b) of the Charter until and unless they have fully discharged the constitutional and common law duty on them to disclose all relevant evidence to the defendant”.

103No authority was cited to me in support of this proposition. In R. v. Zahor, 2022 ONCA 449 at para. 65, the Court of Appeal for Ontario stated at para. 65: “This court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate”. That encapsulates what I understand to be the approach to assessing delay, along with step (ii) of the Coulter framework.

104In this case, the Crown accepts responsibility for the entire period from the October adjournment to the resumption of the trial in March. This is a very fair position, given that during the adjournment a defence third party records application was heard and decided. In my view, the Crown’s acceptance of this period of delay is the correct approach. The disclosure issue does not retroactively change the nature of the events that preceded it. The adjournment was granted as a remedy for the late disclosure.

105I must therefore address the second defence argument, that the record does not reveal any defence delay. As noted, the total delay is the period from the charge to the actual or anticipated end of trial: R. v. Jordan at para. 47; see also R. v. Wookey, 2021 ONCA 68 at paras.55-57.

106I am using the December 6, 2022 date of arrest as the start date as I was unable to find a specific reference to the date of the charge. Submissions were completed on May 4, 2026. Therefore the total delay in this case is 1,246 days or 41 months.³

107The defence position is that there was no defence delay. The Crown position is that there were 663 days (21.8 months) of defence delay based on the follow periods:

March 27, 2023 – November 14, 2023 = 233 days

January 26, 2024 – June 6, 2024 = 133 days

September 22, 2024 – October 4, 2024 = 13 days

February 3, 2025 – October 20, 2025 = 260 days

March 13, 2026 – May 4, 2026 = 24 days

108I will address each time period in turn.

March 27, 2023 – November 14, 2023 (Crown position 233 days defence delay)

109The accused and counsel did not appear in court on March 27, April 3 and June 12, 2023. At the June 12 appearance the Crown noted that the Crown had not heard from defence about any CPTs or JPTs. On November 14, 2023 defence requested a one month adjournment so that he could review the disclosure, as he had not had an opportunity to do so. This period constitutes 233 days of defence delay: R. v. K.J.M., 2019 SCC 55 at para. 83.

January 26, 2024 – June 6, 2024 (Crown position 133 days defence delay)

110The Crown sent multiple emails in December and January attempting to schedule a JPT and expressing the need for the matter to move forward. On March 25 and April 11, 2024 defence acknowledged not being able to attend a JPT that had been scheduled with the Crown.

111Counsel did not elect trial by judge and jury until June 6, 2024. It appears that the only additional disclosure provided during this time period was a TPS training manual that was requested on December 12, 2023 and provided on April 12, 2024. This period constitutes 133 days of defence delay: R. v. L.L., 2021 ONSC 3337 at paras. 9-12, citing R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.).

September 22, 2024 – October 4, 2024 (Crown position 13 days defence delay)

112It does not appear that all the transcripts are available for this time period. Emails in the record indicated that counsel did not attend court on September 20, 2024 to put the trial dates on the record, so the matter had to be adjourned. However, since it appears that the trial dates offered did not change, I will not deduct this time period.

February 3, 2025 – October 20, 2025 (Crown position 260 days defence delay)

113The Court and Crown were available for trial February 2, 2025. Defence was available October 20, 2025. This period constitutes 260 days of defence delay: R. v. Jacques-Taylor, 2026 SCC 20 at para. 30; R. v. B.J., 2025 ONCA 103 at paras. 31-37.

March 13, 2026 – May 4, 2026 (Crown position 24 days defence delay)

114The Court and Crown were prepared to proceed to closing submissions during the trial continuation week. The defence sought an adjournment for closing submissions. This period is 52 days. The Crown seeks to attribute about half of that time to the defence. Twenty-four days is a reasonable amount of delay to attribute to the defence for this period: R. v. Jordan, at paras. 60-65; R. v. Zahor, at para. 9.

115The total defence delay is 650 days. Subtracting that from the total time of 1,246 leaves 596 days, or 19.6 months. Once defence delay is subtracted, this case is well under the ceiling.

116The onus is therefore on the defence to show that the delay is unreasonable. On more than one occasion, the defence did not attend court and did not respond to the Crown’s efforts to move the case forward. In assessing the overall delay, the timing of the application is also relevant. In R. v. J.F., 2022 SCC 17 at para. 35, the Court stated that “[i]t is generally recognized that an accused who raises the unreasonableness of delay after trial … is not acting in a timely manner.” [citations omitted] The defence has not met the onus. The application is dismissed.

CONCLUSION

117Mr. O. is convicted on counts 1, 2, and 5. The abuse of process application is dismissed. The s. 11(b) application is dismissed.

The Honourable Justice B. Wassenaar

Footnotes

1. 1The older son used a different name at the time of trial than what he had previously been called. I refer to him as E. throughout these reasons, although both names were used during the trial. In particular, Mr. O. referred to him by his previous name, but I use E. for consistency.
2. 2Mr. O. confirmed that two photos in a mall in Exhibit 23 were on the same day. However, the family is wearing different clothes in the two photos. In addition, one photo shows Christmas lights, and in the other the people in the background have clothing for warmer weather. Since the photos were not central to the issue of the alleged abuse, this error has limited, if any, relevance.
3. 3I will make my calculations relying on the footnote in R. v. Shaikh, 2019 ONCA 895, which states “I have converted days to months by dividing by 30.417, which is approximately 365/12. I have also rounded month figures to one decimal point.”