Case information

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The incident was alleged to have taken place in the summer of 1996. The complainant, who was eight, and her older brother, who was ten, were visiting the Respondent with their father and his girlfriend. The two children were alone with the Respondent in his apartment for a period of time that afternoon. The complainant testified that the Respondent accompanied the complainant and her brother to the swimming pool in his apartment complex. After her swim and shower, the complainant testified that she was alone with the Respondent in his bedroom, while her brother watched television in the living room. She sat on the Respondent's bed, clothed in one of his T-shirts, but without any underwear on. According to her, the Respondent pointed a blow dryer on her vagina, blew on her vagina and kissed it. Then he told her he was sorry and would never do it again. After the incident, the complainant left the bedroom and joined her brother. She did not tell her brother, father or his girlfriend what had happened and told her mother a year later.

The complainant's brother also testified about the events of that day. The Respondent testified on his own behalf and contradicted both the complainant and her brother's version of what happened when they returned to his apartment that afternoon. According to him, the two children swam in their street clothes. When the three returned to his apartment, he put both children in his bedroom and gave them dry towels and T-shirts to wear. He testified that he and the complainant's brother had to help the complainant take off her jeans. He gave the complainant a comforter to keep warm and then went down the hall to place their wet clothing in a dryer. When he returned, the complainant was still sitting on his bed and she asked for an extra towel and a blow dryer, which he gave her. She came out of the bedroom a short time later and all three watched television until the children's father and his girlfriend returned. The Respondent denied the complainant's allegations.

At the conclusion of the children's testimony, the trial judge ruled that the Crown was permitted to call similar fact evidence in the form of testimony from two witnesses who had been complainant's in the Respondent's two prior convictions for sexual assault, M.O. and J.B. In his testimony, the Respondent denied any intentional sexual touching of M.O. and J.B.

The jury returned a finding of guilty on the charges of sexual assault and sexual interference involving the complainant. On appeal, the majority of the Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial. Abella J.A., dissenting, would have deferred to the trial judge's ruling and dismissed the appeal.