WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: January 28, 2015

Court File No.: Peterborough 14-0508

Between:

Her Majesty the Queen

— AND —

N.S.

Before: Justice S. W. Konyer

Heard on: January 19 & 20, 2015

Reasons for Judgment released on: January 28, 2015

Counsel:

Mr. F. Giardano — counsel for the Crown

Mr. P. Burstein — counsel for the defendant N.S.

KONYER J.:

1: INTRODUCTION

[1] There are few crimes more abhorrent, and deservedly so, than sexual offences against children or young persons. For the same reasons, false allegations of sexual misconduct against a child can be devastating to the person accused. In the matter of N.S., which has been tried before me, I have heard two diametrically opposed versions of events, according to which he is either the perpetrator of repulsive acts of sexual touching of his granddaughter, or the victim himself of wrongful allegations made by a misguided teenager.

[2] As a Judge I am not blessed with any special ability to sort fact from fiction, and must approach this matter by applying those principles which have been recognized by our law as governing issues of credibility in order to determine whether the case against N.S. has been proven beyond a reasonable doubt. I must carefully consider all of the evidence in this case, bearing in mind the burden on the prosecution which remains throughout.

[3] N.S. is charged with the sexual assault and sexual touching of his granddaughter, A.D. between December 2013 and February 2014, at a time when A.D. would have been 12 years of age. A.D. testified and also adopted the contents of a video statement which she gave to police in March, 2014, pursuant to section 715.1 of the Criminal Code. The Crown also called A.D.'s mother as a witness, and tendered a video statement from A.D.'s younger sister, J.D., on consent.

[4] N.S. testified in his own defence, and denied the conduct that forms the basis for the charges. The defence also called N.S.' spouse, the grandmother of A.D. and filed, on consent, two reports from Russ Doucet, a computer expert retained by the defence.

2: SUMMARY OF THE EVIDENCE

[5] A.B.'s parents separated in 2010, when she was 9 years old. At the time, the family lived in Peterborough. Following the separation, A.B.'s father moved into the home of his mother, M.M. and her husband, the accused N.S., who also lived in Peterborough. M.M. and N.S. have been in a relationship since about 1992, when they both lived in Timmins. M.M. moved to Peterborough in 2000, and N.S. followed in 2006 when he was able to find work in Peterborough.

[6] N.S. is not the natural father of any of M.M.'s three sons. Her only grandchildren are A.B. and her sister J.B., who are currently 13 and 9 years of age. Although N.S. is not their biological grandfather, the two children have known him as their paternal grandfather for their entire lives, and each of them referred to him as "Grandpa", at least prior to the present allegations coming to light.

[7] Custody of A.B. and her sister has been jointly shared between their parents since the separation in 2010. Their mother is a nurse in Peterborough who typically works twelve hour shifts. Their father has since remarried and now lives in Vaughn, Ontario. The children have always attended school in Peterborough. In the initial period following the separation, the children would alternate residences between their mother's home and the home of their paternal grandparents M.M. and N.S., where the children's father lived following the separation.

[8] When their father moved to Vaughn, the children continued to alternate between the residence of their mother and grandparents. This was due to the fact that their mother was unable to provide care and get them to and from school on the days where she was working (or on days following a graveyard shift). On those occasions they would stay with their grandparents who assumed these parental responsibilities.

[9] Generally speaking, it appears as though both A.B. and her sister enjoyed good relationships with both grandparents, though the nature of these relationships clearly changed as the grandparents assumed more active parenting roles. As M.M. and N.S. took on everyday tasks such as cooking, cleaning, supervising homework, getting the children up in the morning, to and from school, and to bed at night on a regular basis, it was probably inevitable that conflicts would arise. This is particularly so since the children would naturally be expected to have emotional reactions to the breakup of their family and the consequent disruption to their lives and routines. Indeed, A.B. had been receiving professional counseling in an effort to deal with the effects of these traumas.

[10] As the years passed following the separation, A.B., the older daughter, appears to have developed a closer relationship with her mother, one that in some ways resembled a friendship. They enjoyed watching television and movies together. The house rules at the mother's house were quite relaxed in comparison to the rules of the grandparents' home. I do not say this to be critical of A.B.'s mother, who appears to be a hard-working single mother doing her best for the children, but the reality is that life at her home, with frequent take-out meals, fewer restrictions on television and computer use, and more relaxed curfew, was undoubtedly a more appealing living environment for A.B. as she reached her teenage years.

[11] A.B.'s grandparents also appear to have done their best to provide a proper home for the children. Initially, the basement was renovated in order to provide sleeping quarters. As their father and another adult son of M.M. moved out, the girls were both offered an upstairs room, an offer which A.B. declined but her younger sister accepted. It appears as though the daily routine for the children at the grandparents' home was markedly different from the routine at their mother's home. They were woken at set times, expected to wash and dress and eat properly before leaving for school; after school their homework was supervised, weeknight access to television and computers was strictly limited, and bedtimes were set.

[12] Perhaps unsurprisingly, over time A.B. began to dislike the constant shuffling between her mother's residence and that of her grandparents. Her mother testified that A.B. became withdrawn and less affectionate towards N.S. beginning around December 2013.

[13] At the same time, however, the grandparents were planning a trip to Disneyworld in February 2014 for themselves and the two girls. N.S. has suffered from Parkinson's for several years, and thought this might be his last opportunity to make this trip. Planning for the trip began in October or November, 2013. A.B. was aware of the trip and was very excited about it, for she was, according to her evidence, a huge fan of Disney movies and characters.

[14] Prior to leaving on the Disney trip, however, a dispute arose about A.B.'s use of a website known as IMVU. This site allows users to register a username and to create an avatar which they can then personalize by gender, skin tone, hair and clothing, most of which appears to leave legs and midsections uncovered. Users can then enter public chatrooms and engage other users in live chats, or users can invite each other to private rooms which can be furnished with "couple tubs". The avatars can be made to dance with each other, can hug, kiss, caress and share a tub.

[15] It is undisputed that A.B. used this site at various times, and records show that her access to this site was more frequent between December 2013 and March 2014. Her mother became aware of A.B.'s use of this site, and although she initially thought it was a teen site, the mother apparently took steps to have a friend install parental controls on her computer to restrict access to IMVU.

[16] N.S. testified that he twice caught A.B. using the IMVU site on an iMac computer belonging to M.M. The first time he was called to the room that housed the computer by J.B. as a result of an argument between the girls, but A.B. initially blocked the door and then made efforts to prevent him from seeing what was on the computer screen. He eventually did see a depiction of avatars in a tub, and told A.B. that the site was inappropriate and to stay off the site, which she apparently promised to do. In cross-examination, A.B. admitted using this site and having a profile, though she denied being caught by N.S. in the manner described.

[17] N.S. also testified that he caught A.B. using the IMVU site a second time shortly before the scheduled departure for the Disney trip on February 18, 2014. He said that when confronted A.B. told him to "fuck off" and stated that if he said anything she would go and live with her mother on a full time basis. When the particulars of this scenario were put to A.B. in cross-examination, she said that she "somewhat recalled" the scenario, that what was being suggested "sounded right" and that while she did not recall telling N.S. to "fuck off" or she would move to her mom's, it was possible that she did make this statement.

[18] N.S. testified that he responded to A.B. by telling her to stay away from him, that he did not mention the incident to M.M. for fear she would cancel the Disney trip, and that he told A.B. that he would raise this incident with her father after they returned from the Disney trip.

[19] The grandparents and the two girls left for Disneyworld on February 18, 2014 and returned on February 27, 2014. While there, it is agreed that they had a wonderful time, evidenced by a number of photographs tendered in evidence at trial. Of note, N.S. and A.B. spent a good deal of time alone together, including an occasion on the last night before leaving to return home. M.M. and J.D. had gone to a store while N.S. was looking after arrangements for their trip to the airport the following morning. A.B. chose to stay with N.S., playing in a nearby arcade while he tended to business, then returning to the hotel room alone with him so that he could change clothes before going out to enjoy a final night at Disneyworld.

[20] Three days after returning home, on March 2, 2014, A.B. told her best friend that N.S. had touched her in a sexual manner on several occasions over the last several weeks prior to the Disney trip. The friend disclosed this information to A.B.'s mother, who questioned A.B. When A.B. confirmed this information, the mother informed police, who subsequently conducted a video-recorded interview which was adopted by A.B. in the course of her evidence, and admitted as an exhibit at trial on consent pursuant to section 715.1 of the Criminal Code.

[21] When she attended the police station to be interviewed, A.B. knew that her mother had disclosed the substance of her allegations to the police. She knew the police would be asking her questions about these allegations, and she believed she could get into trouble for making up such allegations. She was also aware that her police interview was being recorded, and was told by the officer that she would not have to talk about this matter again after the interview.

[22] A.B. told police that N.S. licked her legs on two occasions when she was alone in the basement, one of which occurred while she was chatting with a friend online using her tablet. After this, he came down to the basement on another occasion where he licked her on the stomach, and then apologized and promised that it would not happen again. These incidents would have occurred in either late December 2013 or January 2014. As a result, she was confused and scared and made efforts to avoid N.S., according to her evidence.

[23] Finally, about two weeks later, and on the night before leaving on the trip to Disneyworld, she testified that he put his hand down the top of her shirt.

[24] In his evidence, N.S. completely denied that any of these incidents occurred. Much of his evidence has already been summarized. Both he and M.M. testified about the routine and discipline of their household, as described above. N.S. testified that he twice caught A.B. accessing the IMVU website in the manner already described, and he described the details of the trip to Disneyworld.

3: APPLICABLE LEGAL PRINCIPLES

[25] In this case, since the accused has testified that he did not touch A.D. in the sexual manner complained of, I must follow the well-known test set out by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742. First, if I believe N.S. that he did not touch A.D. in a sexual manner, I must acquit him. Second, even if I do not believe the evidence of N.S. on this issue but am left in a reasonable doubt, I must acquit. Finally, even if the evidence of N.S. does not raise a reasonable doubt, I must consider whether, on the basis of the evidence which I do accept, I am convinced beyond reasonable doubt that the Crown has proven its case against N.S.

[26] While I must assess the testimony of each witness in the context of the evidence as a whole, it would of course be an error to reject the evidence of the accused simply because the evidence of the complainant is believed: see R. v. Divenanzo, a decision of Durno J., at para. 13. Further, if I am to reject the evidence of the accused, I must be able to articulate meaningful reasons for doing so: see R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont.C.A.), at paras. 25-29.

[27] In making these determinations I must assess the credibility of the witnesses who testified, most importantly A.B. and N.S., and I must assess their credibility in the context of the evidence as a whole. Since A.B. was twelve years of age when she claims to have been sexually touched by N.S. and thirteen when she testified, I must be careful not to assess her evidence in the same manner as an adult witness. While the standard of proof remains the same whether the complainant is an adult or child, common sense dictates that different considerations apply when assessing the evidence of a child.

[28] As the Supreme Court held in R. v. R.W., [1992] S.C.J. No 56:

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 new 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.

[29] When assessing the credibility of A.B. as a witness, therefore, it is essential that I take into account her age both at the time of testifying and at the time of the alleged offences, her mental development, her understanding of events, her ability to communicate those events, as well as the effects of the family breakup and her living arrangements, and whether these factors give rise to any animus towards the accused or any motive to fabricate the allegations against the accused. In assessing her credibility as a witness through observations of demeanour in the witness box and on the video statement, I must be cautious not to place too much weight on this factor. Demeanour evidence is, in my view, fraught with the potential danger of misinterpretation in any case. Where the witness is a child or teen, the potential to misinterpret demeanour through an adult lens is greatly exacerbated.

4: ANALYSIS

[30] It is clear from the evidence as a whole that A.B. experienced emotional trauma following the separation of her parents in 2010. She grew increasingly unhappy with the living arrangements at the home of her paternal grandmother and N.S. where she stayed when her mother was working. In contrast to the relaxed, easy-going lifestyle she enjoyed at her mother's residence, where she and her mother had become close in a friend-like manner, life at her grandmother's home was comparatively strict and her freedoms were severely curtailed. It is hardly surprising that, as she grew and matured from the age of nine to twelve, she found the situation at her grandparents' residence to be increasingly intolerable. In fact, she apparently had discussions with her mother about living full-time at the mother's residence, and was promised that this could happen once she reached age thirteen.

[31] I conclude from this evidence that A.B. had a very real motive to want to change her living arrangements such that she would no longer be required to stay with her grandmother and N.S. I am not persuaded that her desire to be rid of this residence was significantly put to rest by her mother's assurance that she could move in with mom permanently in the future. To a child of twelve years of age, such a promise would likely not have been meaningful. Indeed, in her evidence, A.B. confirmed that she preferred living at her mother's residence, and that she no longer liked living at her grandparents' home by late 2013, but never mentioned any belief that she would be moving to her mom's on a full-time basis when she turned thirteen. This evidence came from the A.B.'s mother only.

[32] I am also satisfied that A.B. had cause to bear some animus towards N.S. as a result of their disputes over her computer use and access to the IMVU website. It is clear from N.S.' description of the visual representation of the chat room that he had seen A.B. using the site on at least one occasion. It makes perfect sense that he would have found this site to be inappropriate and that he would have made some efforts to deal with this behaviour. A.B. conceded in cross-examination that there may have been an occasion where this subject was discussed between them.

[33] I accept the evidence of N.S. that there were two occasions where he caught A.B. accessing this site, that she promised him the first time that she would stop, and that he told her on the second occasion that he would report her behaviour to her father. N.S. was not the disciplinarian in the household and it makes sense that he would deal with the issue in this manner. As the second occasion occurred on the eve of the long-planned trip to Disneyworld, it also makes sense in my view that N.S. would not report the incident to M.M. at this time for fear of spoiling the trip.

[34] I also accept that A.B. reacted to being caught on this inappropriate site for a second time by N.S. by telling him to "fuck off" and that she would move to her mother's home permanently. Again, A.B. conceded that she may have said these words, and such a reaction by her makes sense in the context of the entire circumstances.

[35] I conclude from this evidence that A.B. had reason to bear some animosity towards N.S. It is clear that she had a significant interest in exploring the IMVU website at this time in her life, that she had been disciplined for doing so in the past, and that she could reasonably expect to be in trouble once again as a result of being caught on the site by N.S.

[36] It should be readily apparent from the foregoing analysis that I have cause to be troubled by the evidence of A.B. My difficulty with her testimony, however, has nothing to do with discrepancies in her evidence about the timing of the alleged incidents, for I agree with the Crown that any such inconsistencies could be attributable to her young age and the shock which would naturally be expected to follow this series of traumatic events, if they had occurred. I would not have discounted her evidence in any material way simply because she was wrong about the timing of the events.

[37] I am also not troubled by the fact that the first disclosure of these allegations was made immediately upon the return from the Disney trip. Applying adult standards of behaviour, it may not make sense for A.B. to have gone on the trip and placed herself in situations where she was alone with the man who had begun touching her inappropriately. She was, however, twelve years old at the time, had been eagerly anticipating the trip for months, had known and trusted N.S. her entire life, and was confused and scared by the touching which she claims had only recently begun to occur. In the circumstances I am not prepared to draw an adverse inference against A.B.'s credibility based solely on her behaviour on the Disney trip or the timing of her disclosure.

[38] Turning to the testimony of N.S., I find that his evidence was straightforward, uncomplicated, unshaken and sensible. I cannot articulate any plausible basis for rejecting his evidence, and, in fact, I tend to believe his testimony when I assess it in light of the evidence as a whole. In short, there is nothing that convinces me that he touched A.B. in the manner complained of by her.

[39] Although it is impossible to say for certain what happened and did not happen between A.B. and N.S. between December 2013 and February 2014, having heard and observed the witnesses in this case, it is my view that A.B. has probably falsified these mild allegations of inappropriate touching by N.S. in order to extricate herself from a living environment that she found intolerable. It is my belief, based on the evidence I have heard, that N.S. is probably innocent of these charges.

5: CONCLUSION

[40] It is obvious from the foregoing that I am not satisfied beyond a reasonable doubt of the guilt of the accused in this matter. Accordingly, he is found not guilty on all counts.

Released: January 28, 2015

Signed: Justice S. W. Konyer