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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: August 5, 2016

Court File No.: Sudbury 998-15 2749-00

Between:

Her Majesty the Queen

— and —

J.N.

Before: Justice Randall W. Lalande

Heard on: August 4 and 5, 2016

Reasons for Judgment released on: August 5, 2016

Counsel:

• Sandra Duffey, counsel for the Crown
• William Beach, counsel for the accused J.N.

LALANDE J.:

1: INTRODUCTION

[1] J.N. entered a plea of not guilty to the two-count information alleging that between January 1, 2003 and December 31, 2005 he committed the following offences:

1. For a sexual purpose touched C.D., a person under 16 years with his hand(s) contrary to section 151(a) of the Criminal Code;

2. For a sexual purpose invited C.D., a person under 16 years to touch his penis contrary to section 152 of the Criminal Code.

[2] C.D. is 20 years old. She has been out of school for the past three years. She is presently looking for work. She has aspirations to upgrade and attend college.

[3] The allegations brought forth are somewhat dated. In terms of timing, Ms. C.D. equates the dates of the events leading up to the charges against Mr. J.N. to be commensurate with her family (namely herself, four brothers and mother) moving from Sault Ste. Marie to Sudbury. At the time Ms. C.D. and her family moved to Sudbury she said she was 7 years old. She was born on […], 1996.

[4] Ms. C.D.'s mother, S.C. stated that she wanted her children to be happy and thought that they would benefit from a change of lifestyle by moving to a different city. Generally the move to Sudbury proved to be positive. According to Ms. S.C., her children adjusted fairly well within a short period of time.

[5] Ms. C.D. and her family did not live with her father, R.D.. He resides in Sudbury on K[…] Street. He did not help when Ms. C.D. and her family moved to Sudbury but his good friend J.N. did. It appears that Mr. J.N. and his brother-in-law did a lot of work in helping Ms. S.C. and the five children move from Sault Ste. Marie to Sudbury.

[6] Ms. C.D. and her family moved into a residence municipally described as N[…] Street. Several photos of the house were taken by Officer Smuland and entered as exhibits 1(a) and 1(b). Intermittently, after Ms. C.D. and her family moved to Sudbury she visited with her father. For reasons not expressed in the evidence, her father did not visit the home at N[…] Street.

[7] The accused, J.N. was recognized as a close family friend. To Ms. C.D. (and perhaps the other children), he was affectionately known as "uncle J.D.".

[8] Although Ms. C.D. could not provide specific dates, she was able to highlight detailed instances soon after she and her family moved to Sudbury, of Mr. J.N. (uncle J.D.) picking her up at home and taking her for a drive to either McDonald's Restaurant or Sudbury Downs to see the horses.

[9] In terms of frequency of Mr. J.N.'s visits to N[…] Street, it was Ms. C.D.'s recollection that he attended approximately twice per month. At first she was very happy to be with him. He was paying special attention to her either by treating her at McDonald's or taking her to Sudbury Downs. Ms. C.D. did not specifically know the number of times that Mr. J.N. took her out. In her estimation, as shall be discussed further, he engaged in offensive and repugnant conduct toward her between a total of 10 to 15 times.

[10] Ms. C.D.'s mother could not provide very helpful evidence in terms of dates or timing. Her evidence was marginally helpful in the larger picture but could not be relied on for accuracy or detail. For instance, she indicated that the family moved to Sudbury in 2005 when her daughter turned 7 years old. Ms. C.D. turned 7 on […], 2003. If she was 7 years old at the time the family moved to Sudbury it could not have been in the year 2005.

[11] S.C. stated that she did remember Mr. J.N. attending at the residence at N[…] to pick up her daughter to take her either to McDonald's or Sudbury Downs. She estimated he visited from Sault Ste. Marie about every second month. This, as indicated, is contrary to her daughter's estimation that he visited approximately twice per month. Upon further questioning on this point Ms. S.C. when asked more specifically how many times Mr. J.N. actually visited, she responded by saying "Quite a few".

[12] There are a number of consistencies in Ms. C.D.'s evidence and her mother's evidence including the following:

• When he attended to pick up Ms. C.D. to take her to either McDonald's or Sudbury Downs, Mr. J.N. never went inside the house. He always waited outside and did not stay very long;

• Mr. J.N. did not at any time invite any of the four boys (Ms. C.D.'s siblings) to attend with him (or with himself and Ms. C.D.) to McDonald's or Sudbury Downs;

• Mr. J.N. drove a pick-up truck. Ms. C.D. recalls that it was a yellow colour. She was challenged on this in cross-examination. It was suggested to her that the truck was green. She did not agree and reconfirmed that it was yellow. Her mother also said she had told police that the truck was yellow. She appeared, however, to somewhat vacillate on this point in cross-examination;

• It was understood that Mr. J.N. was always taking Ms. C.D. to either McDonald's or Sudbury Downs. Ms. C.D. said that except for the first few times when they went to McDonald's on N[…], they mostly went to McDonald's on the Kingsway. Her mother in turn said that Mr. J.N. never took her to McDonald's on N[…]. As far as her mother knew, they always went to McDonald's on the Kingsway;

• When he attended to pick up Ms. C.D. in his truck, Mr. J.N. was always alone.

[13] According to Ms. C.D., Mr. J.N.'s offensive conduct progressed with the frequency of times she went with him. She described how from the first time she drove in his truck with him, she was told to move from the passenger's seat and sit right next to him. She did so. She fastened her seatbelt. She recalls the truck doors being locked.

[14] Ms. C.D. described a series of incidents. The following is a summary intended to capture the gist of her evidence touching upon Mr. J.N.'s conduct forming the basis of the charged brought against him:

Incident #1

He picked her up in his truck. He placed his hand on her knee. He kept his hand there for quite a long time. No words were spoken relevant to him touching her knee.

Incident #2

He picked her up again several weeks later. Again he placed his hand on her knee. Again no words relevant to him having placed his hand on her knee were spoken.

Incident #3

Ms. C.D. said she recalled Mr. J.N. moving his hand up her leg. They were en route to Sudbury Downs. When asked if this lasted for a long or short time, she responded "In between". Again here no words were spoken relevant to the touching. She does recall there was music playing in the truck.

Incident #4

On this occasion, she recalled him moving his hand up her knee and undoing the top button to her pants. The truck was moving when he did this. She did not know if they were going to McDonald's or Sudbury Downs. She did say that they had a normal conversation. She felt that he touched for a long period of time. The touching started within 5 minutes of the time they left her residence and was on and off for the duration of most of the trip back.

Incident #5

She does not recall if there were any visits in between this incident and the one just spoken about. In this instance, however, he undid the button to her pants and touched her inside her pants but over her underwear. She said she thought it lasted a long time. She testified that this type of touching occurred approximately during three visits or trips.

Incident #6

On this occasion he placed his hand inside her underwear. She said he rubbed her on the sides of her legs under her underwear. She was not sure if they were en route to Sudbury Downs or McDonald's. They were having normal everyday conversation. She estimated that the touching lasted a long time and occurred both ways.

Incident #7

On this occasion, he placed his hand under her underwear and put his finger inside her. The vehicle was moving. She estimated this lasted a long time and that they were going to Sudbury Downs. She recalls it was in the summertime at some point after her 8th birthday.

Incident #8

She described an incident where Mr. J.N. put her hand on him. She stated "He put my hand on him, but I moved it away quickly".

Incident #9

She described an incident where he pulled his vehicle over to the side of the road. He had his hand on her vagina and inside her vagina. They were on their way to Sudbury Downs. It was during the summertime just before fall. She said she tried to move away but he would not let her. She tried to unbuckle her seatbelt and move away but he pulled her back toward him with his free hand.

[15] Ms. C.D. testified that there were several other trips where Mr. J.N. placed his hand over the top of her underwear. She said that the visits and bad conduct stopped in the fall. She was 8 years old. She told her mother she did not want to go with him anymore.

[16] Ms. C.D. indicated that Mr. J.N. told her not to tell her mother about anything that happened. She said that Mr. J.N. gave her a real serious look when he told her. She said she was scared. She said that she thought he might try to hurt her or perhaps another member of the family if she told anyone about what had happened.

[17] Approximately 18 years passed before Ms. C.D. did tell her mother about what occurred. In her testimony she said that she was just too scared to speak about the matter. She initially disclosed the matter to Detective Constable Smuland. Officer Smuland was investigating an unrelated matter. She had occasion to speak with him and decided to tell him about these incidents involving Mr. J.N.. In cross-examination she said that Mr. J.N. either rubbed her vagina from the inside or outside on about five occasions. She was asked why she decided to tell police about what had occurred. She responded by saying "I did not want to hold it in anymore".

[18] In terms of invitation to sexual touching, the only evidence available is Ms. C.D.'s evidence when she said that Mr. J.N. put her hand on him and she moved it away quickly. She did not indicate where Mr. J.N. placed her hand. Indeed it could have been anywhere on his body. Also in cross-examination Ms. C.D. did agree that Mr. J.N. did not verbally invite her to touch him. In re-examination she was asked whether he invited or asked her to touch him. She specifically said that she understood that invite could mean verbally or by act. In that context she did not indicated that Mr. J.N. invited her to touch him. In the final analysis there is insufficient evidence that Mr. J.N. invited Ms. C.D. to touch him. The evidence about him taking his hand and placing upon his person in inconclusive. There is no evidence that he ever spoke with her or asked her verbally to touch him.

[19] Officer Smuland is the investigation officer. He interviewed Ms. C.D. on January 29, 2015. He spoke to other members of her family. He conducted Mr. J.N.'s arrest and took the various photos entered as exhibits.

2: ANALYSIS

[20] Mr. J.N. testified in his own defence. He is 77 years old. He was married in 1993 but has been with his wife E. for a total of 46 years. They have no biological children together but he presented as a father figure to her four children. Together they adopted E.'s granddaughter S..

[21] Mr. J.N. acknowledged having moved Ms. S.C. and her children from Sault Ste. Marie to Sudbury. He said that the move occurred in the year 2005. In his evidence, he was adamant that at the time of the move he used his "green" truck. It was a 1996 model which he purchased or leased in 2003. He kept this vehicle until 2007. In 2007 he purchased or leased a yellow truck which he kept until 2014.

[22] Mr. J.N. admitted picking up Ms. C.D. and bringing her to McDonald's on the Kingsway. He said that he also took her to Sudbury Downs but only on two occasions.

[23] Mr. J.N. in cross-examination did not deny that he would ask Ms. C.D. to sit beside him in his truck. He said he did so, so that she could be near him because at times he liked to tickle her leg below the knee.

[24] When questioned about any improper touching Mr. J.N. issued a flat denial. He did not speak of any reason for which Ms. C.D. may have fabricated a series of stories. He did agree that while taking her for rides, he was alone with her. He also agreed that on no occasion did he think of extending the same treat to any of her four brothers.

[25] There were several inconsistencies in his evidence including the following:

• He told Officer Smuland that he owned a 2006 GMC vehicle. If he moved Ms. S.C. and her family in 2005, then he could not have used the green vehicle. At trial he indicated that this information was incorrect. He stated that the green truck was a 1996 model obtained in the year 2003;

• In his statement to Officer Smuland he indicated that he did not bring Ms. C.D. to McDonald's at the nearby location right on N[…] Street and instead brought her to the more distant location on the Kingsway because he never thought about it. His words were "I never thought about that". At trial he said that he drove to the more distant location on the Kingsway because that location offers a play area for children. (There has been no evidence with regard to the age level of children expected to play in such a play area).

[26] Mr. J.N. did not volunteer more information than needed. His evidence in many respects finds itself in harmony with the gist of the overall evidence given by Ms. C.D. and her mother except for the crucial times in the truck when the alleged offensive conduct occurred.

[27] There are marginal areas of inconsistencies with Ms. C.D.'s evidence but I find this not to be unreasonable in view of the fact that the allegations stem back approximately 11 to 13 years and also given her age at the time.

[28] Ms. C.D. appeared to be forthright and sincere when she testified. Her evidence was not flawless but overall there is no reason to disbelieve or to assume that for some nefarious reason she decided to make the entirety of her evidence up. She is now 20 years old. She is of slight build and has a meek voice. She is focused. She spoke with a solid determination to disclose the conduct which markedly affected her over a number of years. She tried to remain composed. She succeeded except when speak of the actual incidents. As I watched and heard her it did not occur to me that she was in any way when speaking about the incident intentionally lying. On matters of substance she essentially remained committed.

[29] Ms. C.D. may not have recalled the correct colour of the truck that Mr. J.N. was driving at the time. It is important, however, to note that he did own two trucks, one of which was yellow. There is evidence that he attended the residence after he had stopped taking Ms. C.D. for rides. It is not unreasonable to assume that he may have attended while driving the yellow truck. The court cannot speculate but some flexibility must be given on such peripheral issues especially when witnesses are attempting to recall information from years ago. The court also must remain mindful of Ms. C.D.'s age at the time. In that context it is not unreasonable to assume, in her mind, the truck may have been yellow.

[30] I have some difficulty in accepting Mr. J.N.'s evidence relating to the colour of the truck. It may have been quite easy for him to have made an effort to track information to clear the issue up. I must also remain mindful that Mr. R.D. and her mother both testified that she was 7 years old at the time. There was also evidence that she had attained her 8th birthday while living in Sudbury. This would have been in the year 2004. I am not persuaded that the move necessarily took place in 2005 or after. In any event if the move was in 2005, then the conduct complained of would have occurred during the balance of that summer, during the fall months perhaps up to December 31, 2005 and beyond. Even if the transgressions went beyond 2005 (which I do not find) any prejudice to the accused would be negligible.

[31] Ms. C.D. may also have lacked clarity when testifying about the issue of her age at the time of the alleged incidents. I am, however, satisfied on the whole of her approximate age range. I am satisfied that the incidents she spoke of likely took place after she moved to Sudbury with her family at some point between 2003 and 2005. This is not a case where the issue of "timing" is crucial. It is a case where Ms. C.D.'s credibility is important and whether the court, based on the overall evidence (and mostly her own), is satisfied beyond a reasonable doubt that the incidents complained of actually occurred.

[32] She was questioned about the Criminal Injuries Compensation Board. She said that this was disclosed to her by her counsellor and only after the counsellor had been told about Mr. J.N.'s conduct. Now that she knows about it she will definitely look into it and possibly pursue it. This does not take away from her overall credibility. In fact, the contrary may be true. She admitted outright that she had an interest in pursuing a claim. I did not find this to constitute some type of motivation negatively impacting her credibility.

[33] When reviewing Ms. C.D.'s evidence, I have attempted to take a common sense approach knowing that at the time the occurrences took place she was a child. She was doing her best to recall the events but was not able in all respects to provide precise details including exact dates and times when the incidents occurred. The absence of precise details does by any account mean that Ms. C.D. either misconceived what happened to her or who the perpetrator was.

[34] I have measured Ms. C.D.'s evidence in terms of its consistency with the totality of the evidence. Inconsistency in a material matter, about which an honest witness would be unlikely to be mistaken, can demonstrate a carelessness with the truth. That did not occur here.

[35] I have considered the evidence of Mr. J.N.'s wife E.. It is interesting that without prompting at the outset of her interview with Constable Smuland she indicated that her husband help Ms. S.C. move in 2003. It is only after she paused, removed herself from Officer Smuland's presence and returned in the company of her husband that she indicated that the move had to be after the year 2004.

[36] It is further interesting that Mrs. E.N. did not have a clear handle on the issue of how many times her husband visited Ms. C.D.. She said initially that he had only visited twice. I got the impression that he was in the habit of dropping her off to do shopping. He would then leave on his own. She assumed that he on occasion visited his friend R.D.. She was careful not to suggest that the visits with Ms. C.D. were frequent in circumstances where she did not really know.

[37] The court cannot reach a conclusion beyond a reasonable doubt simply by choosing the evidence of a complainant over the accused. I am, however, satisfied having reviewed the evidence of each coupled with the totality of the evidence that Mr. J.N.'s evidence as it relates to denying the offensive conduct giving rise to the charges is not acceptable. I have considered the seminal decision of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) decided by the Supreme Court of Canada in 1991. On the totality of evidence in addition to not accepting Mr. J.N.'s denial, I have considered whether I have a reasonable doubt as a result of his overall testimony. I have also considered whether his testimony taken in conjunction with all other evidence may raise a reasonable doubt.

[38] Having considered the analysis in the R. v. W.(D.) decision, I must conclude that with reference to the first count I do not have a reasonable doubt. I accept the complainant's version of what occurred. I must conclude that the Crown has met the onerous challenge of having proven all essential elements beyond a reasonable doubt.

[39] I do not find that the evidence in support of the second count, namely that of invitation to touch his penis beyond a reasonable doubt. Ms. C.D. did not give any evidence as to where Mr. J.N. put her hand. It is not possible to assume in the circumstances that he attempted to place it on his penis. He may for that matter have placed her hand on his shoulder or somewhere else. There is certainly no evidence that he attempted to place her hand on his penis. In addition, Ms. C.D. herself candidly testified that he did not verbally invite her to touch him nor did she think by virtue of his conduct he did so. In the absence of further evidence, given the context of what occurred, it is not possible on the evidence to conclude that the Crown has proven the offence (count No. 2) beyond a reasonable doubt.

3: DECISION

[40] For the above reasons, the verdict shall be as follows:

1. Guilty as to count number 1, namely touching C.D., a person under 16 years with his hand(s) contrary to section 151(a) of the Criminal Code;

2. Not guilty of having invited C.D., a person under 16 years of age to touch his penis contrary to section 152 of the Criminal Code.

[41] I thank counsel for their professionalism in the conduct of this trial.

Released: August 5, 2016

Signed: "Justice Randall W. Lalande"