Court File and Parties
Court File No.: 24-63 Date: 2026-03-27 Superior Court of Justice – Ontario
Between: His Majesty the King – and – M.W., Defendant
Before: Justice H. Desormeau
Counsel: Elaine Evans, for the Crown James Coulter, for the Defendant
Heard: July 28, December 3, 4, 2025
Overview
1In this matter, I must decide whether the Crown has proven beyond all reasonable doubt that M.W. is guilty of sexually interfering with his daughter. To protect the privacy of the minor involved in this matter, the child will be referred to throughout this decision by the pseudonym "Emily." This name, and given the small community in which this occurred, the names of all other witnesses but the accused, are fictitious and used solely for the purpose of anonymization to protect the complainant's identity. The accused's name is meanwhile initialized.
2It was alleged that sometime between August 1, 2017, and October 25, 2019, M.W. touched Emily, who was under the age of 16, directly or indirectly with a part of his body, contrary to s. 151 Criminal Code of Canada.
3Admissions by the defence were date and jurisdiction. The question of identification was not at issue regarding the accused being the person that the complainant alleged to be the perpetrator. The accused however denied having committed the offences, and as such, in that regard, his identity was not admitted.
4The Crown called two witnesses: Emily and "Zoe." The accused testified, as did "Jessica", the complainant's mother.
5The accused testified and categorically denied all allegations advanced by the Crown.
Presumption of Innocence, Burden of Proof and Reasonable Doubt
6The analysis begins with the presumption that the accused is innocent, unless and until the Crown proves his guilt beyond a reasonable doubt. Reasonable doubt is doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence1.
7In making findings of fact, I must apply the standard of proof beyond a reasonable doubt. A fact will not be found against the accused unless I am satisfied beyond a reasonable doubt of its existence.
8In assessing all the evidence, the court must examine both the credibility of each witness and the reliability of their evidence.
9A criminal trial is not a credibility contest. Cases are not decided on which evidence is preferred, but whether based on the evidence as a whole, the Crown is able to prove the guilt of the accused, beyond a reasonable doubt, on each alleged offence.
10To accept the testimony of a witness as true, I must find that it is both credible and reliable. Credibility and reliability are different. Credibility is about whether the witness is testifying honestly. Reliability is about whether the witness is testifying accurately. In determining whether a witness is testifying accurately, I have to consider whether that witness had the ability to accurately observe the events in question, accurately recall or remember later what happened and accurately explain what happened when the witness comes to court to testify.2
11Credibility determinations must be made on the beyond a reasonable doubt standard.
12In assessing credibility of any witness, including the accused, the existence of evidence which contradicts the witness is obviously highly relevant.3 Every witness's credibility and evidence must be considered in the context of the evidence as a whole.4
13A witness who is not credible, in other words who is not testifying honestly about something, cannot give reliable testimony on that point. On the other hand, a witness may be testifying honestly but may still give unreliable or inaccurate evidence. In other words, an honest witness may be mistaken about the facts.5
14I am instructed by the test set out by the Supreme Court of Canada in R. v. W. (D.)6 regarding weighing the evidence of the accused and that of the Crown:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
15In R v J.H.S.,7 the Supreme Court qualified the W.(D.) instruction with an additional prong, partly in recognition that a trier of fact "may believe some, none, or all of the testimony of any witness, including that of an accused." This prong is that where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal.
16The W.(D.) instruction applies not to individual items of evidence but to essential elements of the offence. Despite its wording, it applies not only to the accused's testimony but rather to the impact of all exculpatory evidence, in the context of all the evidence.8
17It is not enough to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof beyond a reasonable doubt. While the Crown need not prove the offence to a standard of absolute certainty, if the court is not sure that the accused committed an offence, then he should be found not guilty.
Emily's evidence
18Emily's evidence was provided by viva voce testimony as well as by video-recorded evidence pursuant to s.715.1 CCC.
19It was Emily's recollection that she had been sexually assaulted by the accused on several occasions. She testified to three specific incidents: one in the bedroom, one in the bathroom and one in the car. While there was an assertion of a fourth incident, insufficient details were provided to form the basis of any analysis.
Cornwall Bedroom
20Emily testified that she and her two brothers would visit their father, the accused, in Cornwall at the same time. The accused had a child with his partner, Monica, and her other child was frequently in the home. Given it was a three-bedroom home, the boys all shared a room, Emily shared a room with her half-sister, and the accused shared a room with Monica.
21All three bedrooms and the only bathroom were on the top floor of the home. Emily described her bed was one which turned into a couch, half the size of a queen bed. Later in the evidence the accused clarified that it was futon. Emily indicated that there was a hole in the bedroom wall, where you could sort of see the stairs.
22Emily was unable to remember the first time any sexual contact had occurred but had specific memories of a night when the accused walked into her room completely naked. Emily pretended to sleep. She believed she was wearing a blue onesie with feet, which had stars on it, a zipper in the front, but no hood. Later in her evidence, Emily said her onesie was white with blue stars. Being a very light sleeper, she was able to hear the floor creaking when the accused came into her room, closing the door behind himself.
23The accused got into her bed, stepping over her one foot after another, laying down beside her. There was enough room for the two of them, but she was "smooshed." He then said "wakey wakey, get up" while trying to unzip her onesie. In cross-examination, Emily's evidence was that the accused said "wakey wakey, wake up little girl."
24She tried to prevent the zipper from going down, but he moved her hand and managed to unzip it. In cross-examination, Emily added that the accused said, "it's okay honey it's me." He removed her onesie pulling the arm sleeves, then the rest, throwing it to the ground. In cross-examination, Emily's evidence was that the onesie was thrown to the end of the bed.
25The accused then started to "suck her pussy," licking it. In cross-examination, Emily added that initially the accused traced his hand all over her body. His arms were on top of her arms, so she could not do anything. He then kissed her everywhere, afterward rolling her onto her stomach and tried to put his penis in her "ass." Emily was unsure if there was penetration. She then looked over to see him "jerking off," demonstrating the movement. He then ejaculated onto her. She recalled that he rubbed the "white stuff," or "cream," with his hands and wiped off the excess with whatever he had, though she could not specifically recall what was used. This went on her butt, and she clarified that he rubbed it in, then wiped the excess off with his hands. Emily's evidence was that it hit her a couple of years ago as to what the "white stuff" or "cream" was because of science class, but she had never told anyone.
26Thereafter, the memories were "blurry," but she remembered he put her clothes back on.
27She testified he usually told her to "keep it a secret," but was uncertain if he uttered those words after that event, referencing having "flashbacks of it."
28During this incident, Emily's sister was in her crib next to the top of the bed, near her head. The bed was against the wall. She recalled that at her feet there were teddy bears, and prior to the incident she had been covered with a blanket.
29She believed that these types of events happened more than once.
30Her evidence was that this occasion was not the first time she had seen her father naked, but rather the incident she remembered the clearest.
31In cross-examination, Emily explained that because the moon was out, she was able to see around her bedroom.
32When it was put to Emily that she never told the police that the accused would have said "it's okay honey, it's me," her evidence was that the memory came back to her at a later point.
33In response to the added information of the accused tracing his hands all over her body prior to putting his mouth over her genitals, Emily testified that this was something new she remembered over time but did not feel fully comfortable sharing it when speaking to the police officer.
34When questioned regarding the discrepancy between the onesie being thrown to the ground or at the end of the bed, she said it was in the same area. Then articulated, to the best of her recollection, that it ended up at the end of the bed, where she kept her teddy bears.
35She also recalled a time when the accused tried to put his penis in her mouth, while in her bedroom. On that occasion she pushed him away. He had been on top of her, with her on her back. She was unable to provide further details about this occurrence, including whether he had actually put his penis in her mouth.
Bathroom
36Emily testified regarding an occasion when the accused was giving her a bath and attempted to brush her teeth with his penis, standing in front of her. He said to her, "time to brush your teeth." She went to grab her toothbrush, and he said "no, I'm going to brush your teeth for you." She said okay. He then told her to close her eyes and he put toothpaste on his "dick" and brushed her teeth like that. She was sitting down in the tub, and he was standing up in front of the sink. He put his penis in her mouth, shoving it around, trying to brush her teeth with it. She was unable to recall how the event finished, indicating "it's a bunch of flashbacks," which she "pushed to the side."
37In cross-examination, Emily added that the accused washed her hair and body during the incident. She also testified that despite being told to close her eyes, she "peeked" and saw him putting toothpaste on his penis. She added that the incident ended like a regular shower of her just getting out.
38Emily thought this may have happened on a school night. She also could not recall if anyone else was in the house. She was unable to remember when this would have occurred or how old she would have been.
39When describing the bathroom in question, her evidence was that it was blue. The tub and shower were together. The tub was white.
40In cross-examination, Emily disagreed with the statement put to her that the accused was never alone with her in the bathroom from the time she was younger and maintained that he assisted her quite often with bathing, including washing her hair. Her evidence was that Monica did not help her with bathing.
41Emily acknowledged that her recollection had improved over time, including her ability to recall how the incident concluded. She explained that she did not disclose this to the police officer the week before trial because she wished to leave the interview and did not want to revisit those memories.
Car
42Emily was unable to specifically indicate where this assault occurred apart from in a car, near some trees and a river. The sun was out that day.
43She initially testified that the accused did not have a car or a licence but remembered him driving a car alone with her on that sole occasion. They went to a location where there were trees and a park. Her evidence was that "he tried to do all those things again," the same things as in the bedroom. Emily initially she said she was in the back seat when he was driving. It was a black four-door car with black seats. She was younger so it was "sort of blurry" but remembered sitting in a booster seat with arm rests. Her evidence was he put down the two front seats and "he just started doing it." When that occurred, she was in the passenger seat. She was unable to remember how she had gotten from the booster seat to the front passenger seat. In cross-examination she elaborated that the accused took her clothes off her and put his hands "sexually" on her body.
44She was on her back, and he was using his "private part" and tried to "put it in her," in the "front area and back." She did not recall if he was successful in penetrating her. While initially she did not recall if he "licked" her vagina, in cross-examination she elaborated that he licked her vagina and private parts in general. She indicated he then flipped her over, so she was on her stomach on the passenger seat. At that point she believed he was only wearing a shirt. Emily corrected her evidence by indicating the accused only tried to put his penis in her "butt."
45When questioned as to the contradiction of being on her stomach or back, Emily's evidence was she had said that it was the "same as the bedroom," such that the events unfolded in the same manner. In re-examination, Emily clarified that she was first on her back, then got turned onto her stomach.
46In cross-examination, Emily was unable to recall any other occasions when she was in the car with the accused or recall any other time when he would have had access to or driving a car.
Generally
47Emily had difficulty remembering peripheral details about events, such as if she was at the accused's house from Friday to Monday or shorter time periods. She agreed that she and her siblings were athletic and into a lot of sports, which often occurred on weekends. Her mother was primarily responsible for taking them to their activities, which could have affected the duration and frequency of time she spent with her father.
48When she came forward to police, Emily was 14 years old. At trial she was approximately 16 years old. Emily's evidence was that she believed the last time she saw her father she would have been in grade one or two but clarified that she was unable to state when the sexual incidents started.
49In cross-examination, Emily conceded that she could have been 10 years old in October 2019, when she last saw her father. She did not disagree with the proposition that the residence she identified as her father's Cornwall home would have been occupied by him from June 2019 until October 2019. She deposed that she gave the police a rough estimate of her age when she spoke to them.
50On several occasions Emily stated her memory was "fuzzy," or "blurry," or that she has memory issues. She gave evidence that she has always remembered "little details here and there" and had "flashbacks." These "flashbacks" for her were described as her being "zoned out" or it was "kind of like a nightmare but you're still awake." She had a memory of the assaults, but these became clearer with her flashbacks. She described the flashbacks as accurate as compared to her memory. She asserted that she has a better memory at the time of testifying then when she spoke with the police because back then, she had been going through a rough time. She was trying to block out the memories at the time, and her attention was divided as she was also thinking of what she was going to do the following day. With time, Emily gained a clearer picture of what happened and how she felt during some occurrences such as the bedroom incident.
Zoe's evidence
51Zoe's evidence went to establish when Emily first disclosed the alleged abuse. Emily then disclosed the sexual abuse to the Children's Aid Society, providing more details. According to what Zoe understood, Emily tried to fight off her father.
The accused's evidence
52The accused last saw Emily in 2019. At that time, he resided in Cornwall, on Louisa Street. Emily came over approximately once to twice per month, but in 2019, to the best of his recollection, she slept over less than five times. In cross-examination, the accused's evidence was that any records about when Emily was at his house was with his then partner, Monica, as she and Jessica were the ones communicating by text message, and "as far as [he knew] the records were kept."
53The description of the home itself matched Emily's, including the shared bedroom with her younger sister who was approximately 2 years old. On the nights Emily slept over, there were about seven people sleeping upstairs in the home, including the two adults and the three boys, who were between six and 10 years old.
54The accused shared a bed and bedroom with Monica. She was described as a light sleeper; he would wake her if he moved around too much. He too was a light sleeper, and in cross- examination testified that every time one of the six other people in the house got up to go to the washroom, get a snack, etc., he would wake up every single time. He was unable to get out of bed for any reason without waking up Monica, except when she "drank the night before or something of that calibre, but for the most part, if [he] was to move or get up, she has let [him] know that she does wake up." During cross-examination, the accused became confrontational, asking the Crown where their statistics were on whether it was common for people to get used to sounds of comings and goings in the house over time. At one point he expressed his disagreement, stating, "unless you can give me some sort of actual facts and evidence that somebody has actually did the research to prove that this is a common thing." To ensure she understood, the Crown asked if the accused has "a condition" where the minute that anybody moves in your house that "you're up, you're awake." The accused agreed, and clarified that while Monica was a light sleeper, she did not have the same issue.
55Monica did not work in 2019, and except for once per month, her school attendance to be a PSW was online. According to the accused she was home 99.9 percent of the time, and she was never away overnight. They shopped for groceries as a family or if she went without him, he was at work. She never went out with friends, never left him alone with the children. His evidence was that it was hard to manage all five children alone, so they did things together given the closeness in their ages.
56He described that there was construction happening in the stairway leading to upstairs, which caused one of the walls in Emily's bedroom to have been open at one point, and temporarily patched and boarded off with a sheet of plywood at another point.
57The accused described at great length the futon on which Emily slept, which was too small for him to sleep on given he measures about 6' to 6'1", leaving his feet dangling off the end of the bed. The bed was about 5.5' long, and given it was an older futon made of metal, it made loud sounds at night which in the past woke up Emily's sister if Emily was restless. He testified that the sister was also a light sleeper, which resulted in the younger child going to see her parents to ask Emily to stop moving around so much. Delving deeper in cross-examination, it was established that he could in fact lie on the bed diagonally, curled up, or on his hands and knees. The accused then indicated it "defied logic" for him to be on the bed as it was rickety and the bed could barely hold itself up, elaborating "it was awful for her to lay on it and it wasn't the best."
58According to the accused, there were defined roles in the home, and Monica would bathe the girls. He felt it was inappropriate to assist in bathing the girls. He was never in his life alone in a bathroom with Emily. He never assisted her in brushing her teeth. In cross- examination he expanded that he never helped potty train Emily, that if she asked for help, he would refer her to her mom. He felt, since birth, that it was inappropriate to help his daughter with these sorts of needs. When it was put to him that he never changed Emily's diaper, he agreed, and then clarified that if he did, it was in a common area. He then said he felt it was inappropriate to be around "a lady, a girl, any of the above that's indisposed." When asked to clarify, he stated that it has been a personal feeling that has always been with him, that it was inappropriate "especially with the way society looks at it." He denied ever going into Emily's bedroom apart from the odd time, to just "go in and out, check on her something like that… maybe change the channel" or help with something to do with the TV. He never went into her bedroom at night, and the children knew to go to his bedroom instead.
59When describing the Cornwall bathroom, the accused recalled that the tiles were beige-ish yellow, and the toilet was blue.
60The accused has not had a driver's license since the Family Responsibility Office (FRO) took it away in 2017. He denied driving a car without a licence from 2017 to 2019. Monica at one point in 2017 had access to a little Aveo, four-door coupe. Then in later 2019, after the last time the accused saw Emily, Monica obtained a black 4-door Corolla sedan. To establish the timing of when Monica bought the Corolla, the accused referenced the "last time [he] looked at the receipt for the safety of the car." He recalled seeing December on the paperwork but did not have it with him. He also had the used car buyer's package and the transfer documentation, but later clarified he did not have the transfer of ownership documentation.
61From October 2017 to about May 31, 2019, the accused resided in Ingleside with Monica, then moved to Cornwall.
62M.W. absolutely denied touching Emily in any sexual way. He denied putting his penis in Emily's mouth and denied exposing his genitals to her. He denied touching Emily in a sexual way in a car, and denied ever being alone in a car with her.
63During the lunch recess, following his examination-in-chief and about 30 minutes from cross-examination commencing, despite an order excluding witnesses, the accused was seen having a lengthy conversation with Jessica. The accused was questioned at length as to the conversation. His evidence was that it was solely in relation to Jessica's work and was unrelated to the case. When questioned as to what specifically about Jessica's work they were discussing, the accused stated, "I wasn't really paying attention to the conversation." He denied being part of the conversation, indicating he was "in the vicinity," "wasn't really part of the conversation," and was "just adding to the conversation." When asked what was directed at him, his answer was, "she was ask…..- she was basically telling me that – uh- that I'll be happy too and so on and so forth." He was unable to answer what that referenced and was vague when explaining what everyone was laughing about, indicating it was something to do with her job.
Jessica's evidence
64Jessica's evidence was that she was primarily responsible for bringing the children, including Emily, to their activities. The accused would participate when he wanted to, but around 2017 his driver's licence had been suspended due to non-payment of child support. Jessica corroborated that the accused resided in both Ingleside and Cornwall on Louisa. She believed he lived on Louisa from approximately 2018 or 2019. She characterized the accused's parenting time as being approximately five percent of the time, with the balance of the time Emily, and the other children, being in her care. Once he moved to Louisa, she believed the accused likely had even less parenting time. She estimated Emily spent half a dozen overnights in the accused's home in Cornwall. Emily never went there alone. She believed it was less frequent than every week or second week and suggested perhaps once per month.
65Contrary to the M.W.'s evidence, Jessica indicated that they communicated directly to schedule the visits, and only occasionally relied on Monica.
66Jessica also contradicted the accused's evidence when addressing their out of court communication during trial. While the accused said that their conversation was about Jessica's work, Jessica's evidence was they spoke for approximately 5 to 10 minutes about their son, her having moved, and about meeting up for coffee with her mother and grandmother.
The Law
67It is important to consider that the reasonable doubt principle as set out in W.(D.) applies to the credibility analysis.9 The court must consider potential frailties in evidence, such as inconsistencies between testimony and earlier statements. The court must also consider the circumstances surrounding the testimony.10
68The reasonable doubt principle applies to credibility.
69As stated by the Supreme Court of Canada, R. v. Kruk,
Trial judges are uniquely tasked with assessing the testimony they hear and interpreting the range of possible inferences arising from the evidence. They must be able to rely not only on their judicial experience as fact-finders, but also on their common sense and the generalized expectations it generates about human behaviour. Trial judges will naturally rely on "ungrounded" assumptions about human behaviour in their testimonial assessments and thereby draw on factors that lie outside the immediate record. The judicial function entitles them to do so without requiring extrinsic evidence to support each and every one of their conclusions.
…
The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are "more of an 'art than a science'" (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621). With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to "the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" (Gagnon, at para. 20; see also R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F. 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge's ability to accept some, all, or none of a witness's testimony. 11
70On the issue of date set out in the Indictment, as clarified by the SCC in R. v. B.(G.), it is clear that it is of no consequence if the date specified in the information differs from that arising from the evidence, unless the time of the offence is critical and the accused may be misled by the variance, and therefore prejudiced in his or her defence.12
71The need for corroboration of a child witness's evidence is no longer part of the law and has not been for many years.13
72In R. v. W. (R.), the Supreme Court of Canada confirmed that there is no assumption that the evidence of children is always less reliable than the evidence of adults. Of course, a court may approach a child's evidence with caution, if that caution is merited in the circumstances of the case. Further, the court expanded on the correct approach to children's evidence, and evidence given by adults about events when they were children. The court recognized that since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. It recognized that a flaw such as a contradiction in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. The court explained that "while children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it."14
73The SCC went on to indicate:
It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.15
74The SCC noted in R. v. C.C.F.:
Any kind of assault on a child may be traumatic. Assaults of a sexual nature are still more likely to have a serious deleterious effect. This traumatic effect will be greater still when the perpetrator is a parent, guardian or person in authority. Recalling the events will be extremely difficult for every child and the more sensitive the young person, the greater will be the difficulty experienced.16
75The Supreme Court of Canada addressed the circumstance where, like here, the complainant's evidence in chief was primarily tendered pursuant to s. 715.1 videotaped statement, and then contradictions were elicited in cross-examination. They stated:
If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously, a contradicted videotape may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial. In R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 (S.C.C.), at p. 55, Wilson J. stated that:
a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult.... While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.
She concluded that, although each witness' credibility must be assessed, the standard which would be applied to an adult's evidence is not always appropriate in assessing the credibility of young children. This approach to the evidence of children was reiterated in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 (S.C.C.), at pp. 132-34. There McLachlin J. acknowledged that the peculiar perspectives of children can affect their recollection of events and that the presence of inconsistencies, especially those related to peripheral matters, should be assessed in context. A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility. 17
76In R. v. D.C., the accused's evidence was that he was never alone with the complainant in her bedroom or basement, and did not stay with her in the living room. There, when considering the accused's evidence in the context of all the evidence at trial, Lacelle J. rejected it in large part due to his account of never having been alone with the complainant in various circumstances. She found that the accounts made no sense given the accused's own admission of playing a caregiving role to the complainant at various times. She did not believe the accused's categorical denial of any kind of occasion for being alone with the complainant. She went on to find that the accused's categorical statement about the possibility of being alone with the complainant difficult to reconcile with the experience of normal family life. In that regard, she stated "In arriving at this conclusion, I am mindful that normal family life includes a wide range of experience. All the same, I do not believe the accused's account that as soon as [the complainant's mother] would nap in 'less than a minute' he was out the door again."18
77This court is aware that stereotypical reasoning in sexual assault cases is well known to the law. It generally rests on assumptions or preconceived notions about how victims of sexual assault are expected to act. Reliance on stereotypes about how victims of sexual assault are expected to act in the assessment of a complainant's credibility is an error of law (R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2).19
78In D.R., the court referred to a decision by the Supreme Court of Canada, where it considered assumptions about how victims of sexual assault react. In R. v. D.D. 2000 SCC 43, the trial judge acquitted a stepfather of sexually abusing his 15-year-old stepdaughter because of her delay in disclosing the abuse. The judge reasoned that the delay suggested that the abuse did not occur. In debunking the stereotype that delayed disclosure of sexual abuse suggests that it did not occur, Major J. stated that a complainant's failure to exhibit avoidant behaviour or make timely complaint "must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse" (para. 63). Justice Major explained that people react differently to trauma, saying:
[65] A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.
79The court in D.R. went on to recognize that sexual abuse is rarely committed in the presence of witnesses or in circumstances that lead third parties to suspect wrongdoing. This is especially true when the abuse takes place within a family, where love and trust are generally the dominant dynamics. Disclosure of sexual abuse perpetrated by a family member has huge repercussions for the family involved and places a heavy burden on a victim who may not want to feel responsible for dissention within the family, or even its break-up. Even a young child who may not appreciate that what is happening is abuse can intuit negative fallout from disclosing a secret that could lead to suspicion or suggest to others that all is not as it seems. These dynamics that are in play when children are alleged to be abused by family members were recognized and discussed by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, at para. 60."20
80The Ontario Court of Appeal noted several basic principles R. v. M. (A.)21 that are applicable in this matter in assessing witness credibility:
First, 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: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 (S.C.C.), at p. 134.
Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134.
Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469 (S.C.C.).
Fourth, 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: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, (1995), [1994] S.C.C.A. No. 390 (S.C.C.). 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: G. (M.), at p. 354.
Fifth, 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: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.), at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. c. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 (S.C.C.), at para. 31.
Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272 (S.C.C.), at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, 2008 ONCA 161, 230 C.C.C. (3d) 145 (Ont. C.A.), at paras. 32, 35; R. v. Ay (1994), 1994 CanLII 8749 (BC CA), 93 C.C.C. (3d) 456 (B.C. C.A.), at p. 471.
81As set out in R. v. S. (W.),22 it is not the court's role to address the sincerity of the witness but rather the reliability of the witness' testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.
Review of arguments
82The Crown argued that Emily's testimony met the requisite burden and a conviction should be entered. Such testimony must be analyzed through the lens of a child-witness. The defence argued that the Crown has not met its onus beyond a reasonable doubt, and even if I were to reject the accused's evidence, Emily's evidence itself raises a reasonable doubt.
83The defence pointed to Emily's multiple admissions of poor memory. They argued that despite her comment that her memory improved over time, that claim is problematic. The Crown argued that memories can become clearer with age, as communication abilities mature, and incremental understanding and reflection is normal.
84The defence noted several inconsistencies. In the car, the details differed, Emily was unable to identify the car, location and time. For the bedroom incident, there are changes in the "wakey, wakey" phrase, a new details of finger tracing, a new ending description and the onesie-location contradiction. The defence argued that the cumulative effect undermines Emily's reliability.
85The Crown meanwhile indicated the car inconsistencies were minor and arise from partly ambiguous questions, and even if the car incident is rejected, there are two other incidents which remain. As for the bedroom incident, the Crown advanced there were peripheral differences typical in a child's testimony, and her core account remained stable and credible.
86With respect to the bathroom incident, the Crown noted that Emily's evidence contradicted the father's evidence that he never helped her in the bathroom since she was younger.
87The defence submitted that Emily was defensive, insisted the transcripts were wrong and showed risk of tailoring her evidence. The Crown meanwhile submitted that Emily's occasional frustration was reflective of her youth and trauma, not dishonesty. Emily corrected herself on other occasions in her testimony.
88The Crown submitted that the accused's testimony was evasive, confrontational, self-serving and increasingly implausible, thus his credibility collapses under scrutiny. The defence conceded the accused was at times defensive, but the inconsistencies were immaterial, and the core evidence went unchallenged. It was suggested that his statements ought not be rejected without contradictory evidence.
Analysis
89In order to find M.W. guilty of sexual interference, the Crown must prove each of these essential elements beyond a reasonable doubt:
i. that Emily was under sixteen (16) (years old) at the time;
ii. that M.W. intentionally touched Emily; and
iii. that the intentional touching was for a sexual purpose.
90In addressing the first question, I am of the view that the exact date is not an essential element of the offence. I am satisfied that the Crown has proven beyond a reasonable doubt that Emily was under the age of sixteen at the time. The evidence established that the events occurred between 2017 and 2019, and Emily was born in 2009.
91I accept the accused's evidence that the last time he would have seen Emily was prior to the end of October 2019.
92Turning to the evidence of whether the touching was intentional, and if it was for a sexual purpose.
93Touching involves intentional physical contact with any part of Emily's body. The contact may be direct, for example, touching with a hand or other part of the body. Or it may be indirect, for example, touching with an object. Force is not required, but an accidental touching is not enough. The touching must be intentional, in other words, on purpose. It does not matter whether the complainant agreed to the touching.
94Touching is done for a sexual purpose if it is done for the accused's sexual gratification, or to violate the complainant's sexual integrity, including any act meant to degrade or demean the complainant in a sexual way.
95To determine the purpose of the touching, the court must consider all the circumstances surrounding it. Consider what was said and what was done. Take into account the part(s) of the body that were touched and the nature of the contact. The court must bear in mind any words or gestures that accompanied the touching.
W.(D.)
96I start this analysis with looking at W.(D.). As noted above, I must apply the following test:
First, if I believe the evidence of the accused, I must acquit.
Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit.
Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
If I am unable to decide whom to believe, the accused is entitled to an acquittal.
97The accused absolutely denied any sexual assault or sexually inappropriate activities with Emily.
98The accused's evidence was that he did not drive from 2017 to 2019, and the only vehicle he would have access to during the time in question was Monica's Aveo coupe. He maintained that he was never alone in a car with Emily. His evidence about when Monica had a black car was inconsistent resulting in confusion. He believed the car was purchased in December 2019 as the safety paperwork was from that time. The conclusion therefore to be drawn was that the event alleged by Emily could not have occurred because the car did not exist until after the last time the accused saw his daughter. The accused was questioned at length regarding what paperwork he may or may not have had in his possession. His evidence was inconsistent on this point, however in reviewing the transcript, I find there may have been a misunderstanding as to what the accused agreed he had in his possession, which resulted in an immaterial inconsistency.
99Jessica corroborated that the accused did not have a driver's licence since the FRO suspended his licence.
100Regarding the allegations occurring in Emily's bedroom, the accused's evidence was such that it was impossible for him to fit on Emily's bed. When delving deeper, it was clear that in fact it was possible that he fit on the bed, but his evidence at that point became that the bed was so rickety and unsafe that the bed would not have held both him and Emily.
101At times in cross-examination, the accused became confrontational and combative. He was very evasive and vague when addressing the out of court discussions with Jessica, which has occurred 30 minutes prior to cross-examination. He was unable to specify in any detail what they were discussing apart from Jessica's job. He tried to distance himself from the conversation altogether. Jessica's evidence contradicted the accused's regarding what they were discussing. On this evidence, I prefer Jessica's over that of the accused. She provided details as to the conversation and was forthcoming about same. This interaction significantly undermined the accused's credibility. His lack of recollection about the conversation also substantially weakened the reliability of his evidence.
102The accused in his evidence distanced himself from being involved in arranging for parenting time with Emily. He testified that those details were discussed between Monica and Jessica. He stated that as far as he knew, records had been kept on this issue, though none were produced at trial. Jessica's evidence contradicted that of the accused, and again, I prefer Jessica's evidence.
103I found Jessica's testimony to be forthright, straightforward and helpful. I found it to be both credible and reliable.
104The accused's evidence was externally consistent with that of Jessica regarding his frequency of parenting time and lack of involvement in transporting them.
105The accused maintained a stable narrative regarding not being involved in bathing Emily or ever being in the bathroom with her, he never changed her diaper unless there was someone else present, he never saw her naked, and he was not in her bedroom but for very brief occurrences. Monica was home 99.9 percent of the time, only needing to go to school once per month, they either ran errands together as a family or she took care of this when he would be at work. While he was internally consistent, I found that his marked lack of involvement with Emily difficult to reconcile with the experience of a normal family life. I am mindful that a normal family life includes a wide range of experience. Nevertheless, I do not believe the accused's account.
106Overall, for reasons articulated above, I do not believe the accused's evidence.
107Given I do not believe the accused's evidence, turning to step 2, I must ask myself if I do not believe the testimony of the accused, does his evidence nevertheless raise a reasonable doubt?
108The accused's evidence was he did not have access to a car, and did not drive. If true, this weakens the car incident reliability.
109There were concerns raised regarding Emily's ability to recall the events, which she testified were sometimes "fuzzy". She experienced "flashbacks", and her memory improved over time. The defence argued that the new details articulated by Emily in her testimony runs contrary to the assumption anyone, and particularly children, will have a better recollection of events closer to their occurrence than he or she will later on. Emily articulated that her memory improved over time as at first, she tried to block out the memories, but with time, the picture became clearer. I accept that as children mature, their ability to reflect on their experiences and articulate them can improve, as they seem to have with Emily. However, there were inconsistencies in her evidence identified which need to be addressed.
110In assessing Emily's evidence, I begin by considering the evidence given by her in the videotaped statement. I find that was the best evidence of what she says occurred between her and the accused. I find the videotaped statement has various indicia of reliability. For instance, her allegations went beyond a general description of abuse, particularly regarding the bedroom and bathroom events. The details were sufficiently specific, particularly given her age at the time of the videotaped interview.
111I have considered the weaknesses in Emily's viva voce evidence. There were several inconsistencies in Emily's evidence. These included:
- Emily's age at the time of the assaults;
- The colour of the onesie and where it was placed during the assault;
- The words uttered by the accused in the bedroom, such as "wakey wakey get up" and "it's okay honey, it's me";
- The sequence of events in the bedroom prior to oral contact;
- The secrecy remark;
- Whether Emily saw the accused put toothpaste on his penis during the bathroom incident, and how that incident ended;
- Emily's body position in the car, whether she was on her back then her stomach or just on her back; and
- The site of attempted penetration while in the car, whether it was "front area and back area" or her butt.
112I do not find there is a significant impact on the allegations based on Emily's age, whether she was seven or ten years old. It was clear the allegations occurred prior to 2019. With regard to those occurring in the house or bathroom, it was established the house in question was in Cornwall.
113The onesie colour and where it was placed during the assault has, in my view, a low impact on Emily's credibility. The onesie was not produced.
114The additional details provided in viva voce testimony, in particular the "it's okay honey, it's me", the tracing his hands around her body, and Emily peeking during the bathroom incident to see the accused putting on the toothpaste have a moderate impact on Emily's evidence.
115The secrecy remark was initially said "every time" but Emily clarified it was articulated during the bedroom incident. Emily also provided clarification regarding how the bathroom incident ended. In my view these additional details have a low to moderate impact.
116Finally, there was a notable impact on Emily's credibility regarding her evidence of her body position in the car: "on my back" versus "on my back, then stomach."
117Similarly, I find there was a significant impact regarding the attempted site of penetration: "front area and back" versus "my butt." During her re-examination, Emily clarified her evidence regarding her position in the car. She corrected her evidence regarding the penetration.
118I find that the inconsistencies regarding the incidents in the car are material, thus affecting the reliability of Emily's evidence regarding this allegation. The weaknesses in Emily's evidence on the car allegation, coupled with the accused's evidence about the car, I find that I have a reasonable doubt regarding any sexual activity in the car.
119I do not however find that the accused's evidence raises a reasonable doubt as to the bathroom and bedroom incidents.
120I now turn to whether I believe the complainant's evidence beyond a reasonable doubt.
121Regarding the bedroom and bathroom allegations, I find Emily's additional details about the tracing of the hands and 'peeking,' are consistent with normal patterns of incremental disclosure seen in a child sexual assault case, rather than indicative of embellishment or a shifting narrative. Such incremental disclosure is an important factor in assessing her credibility.
122I am not left in doubt regarding the complainant's account because of the way her disclosure occurred, nor because the entirety of her account was not provided during the videotaped interview. I accept her explanation as to why certain details were not disclosed to police or raised prior to trial. The expanded information does not contradict her account of what the accused did to her.
123I am not persuaded that the additional information leads to the conclusion that the complainant misperceived the nature of the sexual activity in which she was made to participate, or the identity of the person involved, nor does it raise a reasonable doubt concerning the incidents said to have occurred in the bedroom or bathroom.
124Taken in their totality, Emily's cross-examination responses, coupled with her efforts to attribute inconsistencies to supposed transcription inaccuracies, are consistent with trauma-based defensiveness. In my assessment, this does not detract from her credibility but rather aligns with the manner in which trauma-affected witnesses may engage with the adversarial process.
125I am satisfied that the inconsistencies referenced above, such as the colour and positioning of the onesie, relate to peripheral matters and do not engage the essential elements of the actus reus.
126I am not persuaded that the evidence concerning the car allegation has tainted or otherwise compromised the evidence relating to the remaining two incidents.
127Emily's evidence regarding the bedroom and bathroom incidents was stable across 715.1 and trial evidence. Her emotional descriptions were also consistent.
Conclusion
128On the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt that the accused intentionally touched Emily when she was under sixteen, and that intentional touching was for a sexual purpose. The accused therefore is found guilty of sexual interference, contrary to section 151.
Justice H. Desormeau
Released: March 27, 2026
Footnotes
- R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 30
- R. v. M.R., 2025 ONSC 196, at para. 12.
- R. v. Jaura, [2006] O.J. No. 4157, at para. 13
- R. v. Jaura, ibid
- Ibid, at para. 13.
- R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R 742
- R v J.H.S., 2008 SCC 30, at paras 10, 11 and 12.
- R v C.L.Y., 2008 SCC 2 at paras 6 and 8; R v Dinardo, 2008 SCC 24 at para 23; B.D., 2011 ONCA 51 at paras 105-114; R v Ryon, 2019 ABCA 36 at paras 29-30 and 49
- R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749, at para. 45.
- R. v. J.J.R.D., supra, at para. 46.
- R. v. Kruk 2024 SCC 7 at paras. 75 and 81
- R. v. B. (G.) 1990 CanLII 7308 (SCC), 1990 CarswellSask 20, 1990 CarswellSask 410, [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58, 10 W.C.B. (2d) 204, 111 N.R. 31, 56 C.C.C. (3d) 200, 77 C.R. (3d) 347, 86 Sask. R. 111, J.E. 90-944, REJB 1990-97997 [WestlawNext at para.42; Quicklaw at para. 38]
- R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56, at para. 24 WestlawNext; [para. 23 Quicklaw]
- R. v. W.(R.), supra, at paras. 25 and 27 WestlawNext; [paras. 24 and 26 Quicklaw]; R. v. D.C. (unreported, Lacelle J. 2018 Ont. S.C.J.)
- R. v. W.(R.), supra, at para. 27 WestlawNext; [para. 26 Quicklaw]
- R. v. C.C.F., 1997 CanLII 306 (SCC), 1997 CarswellOnt 4448 at para. 20.
- Ibid, at paras. 47 and 48.
- R. v. D.C. (unreported, Lacelle J. 2018 Ont. S.C.J.) at p. 22.
- R v. D.R., 2022 NLCA 2, at para. 17 - appeal to SCC dismissed.
- R. v. D.R., supra, at para. 49.
- R. v. M. (A.) 2014 ONCA 769 at paras 9- 15
- R. v. S.(W.), 1994 CanLII 7208 (ON CA), 1994 CarswellOnt 63, at para. 19.