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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2019-01-14

Court File No.: Central East Region: Oshawa Courthouse 18-34189-00

Between:

Her Majesty the Queen

— AND —

F.J.N.

Before: Justice Peter C. West

Heard on: July 18 and 19, 2018, and December 5 and 20, 2018

Oral Submissions: December 20, 2018

Reasons for Judgment Released: January 14, 2019

Counsel:

• Mr. G. Hendry — counsel for the Crown
• Ms. S. Samat — counsel for the accused F.J.N.

Judgment

WEST J.:

Charges

[1] F.J.N. was charged that between November 1, 2017 and November 30, 2017, in the City of Oshawa, he did commit a sexual assault on D.D., contrary to s. 271 of the Criminal Code of Canada. F.J.N. was also charged that between February 17, 2018 and February 18, 2018, in the City of Oshawa, he did commit a sexual assault on D.D., contrary to s. 271 of the Criminal Code of Canada. He further stands charged between November 1, 2017 and November 30, 2017 with breach of a probation order made by the Ontario Court of Justice on February 11, 2015, in that he was not to have any association or communication, directly or indirectly, with J.N. and D.D.

Trial Proceedings

[2] F.J.N. elected to be tried in the Ontario Court of Justice and entered a plea of not guilty to all charges. The Crown called two witnesses on the two days originally scheduled for this trial, D.D. and her mother, K.D. The matter was adjourned to December 5, 2018, for continuation and D.D.'s family doctor, Doctor Frank Fung, was scheduled to testify; however, he advised the Crown of information that was not contained in his medical notes respecting D.D. Dr. Fung provided a written statement to Detective Constable Ormande, the OIC. As a result of this new disclosure the matter was adjourned to December 20, 2018, for Dr. Fung to testify. Ms. Samat advised after the Crown closed his case that the defence would not be calling any evidence. I then heard oral submissions by counsel. I reserved judgment to January 14, 2019.

Main Issue

[3] The main issue in the trial involving the sexual assaults was whether on the evidence called by the Crown I am satisfied beyond a reasonable doubt of Mr. F.J.N.'s guilt respecting the two allegations of sexual assault. This case depends almost entirely on the credibility and reliability of D.D. respecting these allegations.

Factual Background

[4] D.D. had been in a relationship with J.N. for 5 years and had two daughters with him, ages three and five. Her relationship with J.N. was quite turbulent and was extremely up and down. D.D. described how J.N. had been charged and convicted of domestic violence against her and was prohibited at different times of communicating or associating with her. F.J.N. was J.N.'s brother and the uncle of her children.

[5] It was D.D.'s evidence her relationship with F.J.N. prior to these allegations was good and she described him as being "like a brother" to her. She could talk to him better than she was able to talk to J.N. F.J.N. was her protector and always made sure she was okay.

[6] D.D. described how she had struggles with addiction to drugs and had been on methadone for 10 years. She described how she cheated and stole and used crack cocaine but she has made quite a turn-around since September 3, 2017, when she went into rehab. She has been clean since then. D.D. also described suffering from mental health issues, bi-polar and PTSD were her diagnoses.

[7] D.D. described F.J.N. (she called him F.F.) as being upset with her at the beginning of November 2017 because she tore up his welfare cheque, although he believed she cashed it.

First Alleged Assault (November 2017)

[8] D.D. testified she believed F. did not remember what he had done to her because he was high or drunk on the two occasions. She found it hard to believe he would ever do something like this to her. When she was being questioned by the Crown she said she did not want to get into the details of F. raping her. F. "raped her in her ass from behind." It happened right after November 1 because it was when she tore up his cheque and he was angry. He kept calling her A., who was his ex, and that was why she believed he did not know what he did. She described F. tying her up with an orange rope. It happened in the bedroom of her apartment.

[9] D.D. described bruises on her legs afterwards and F. "ripped her behind, her ass on the inside." She testified her kids woke up and he abruptly stopped and acted as if everything was all right. F. then took off for a few weeks as he was able to get his cheque.

Second Alleged Assault (February 2018)

[10] In February 2018, she moved to another apartment and J.N. and F. helped her move. Everything was fine. At some point both J.N. and F. were arrested for having contact with D.D. but they came back. F. came to her apartment after Valentines and raped her again. He did not tie her up this time. She knew he had been drinking because she could smell it on her breath. It was the same thing as November.

Medical Evidence — D.D.'s Testimony

[11] D.D. described having a 15 centimetre tear in her anus that caused her to bleed every time she had a bowel movement. She testified she took a picture with her phone in February 2018, of the blood that came out. The picture is of blood and toilet paper from her wiping herself after she went to the bathroom. The photo was marked as Exhibit 1. The Crown also showed D.D. a piece of orange rope, which she identified as the rope F. used to tie her up in November. It was marked as Exhibit 2. D.D. testified she did not seek medical attention until April when she saw her family doctor and he told her this was not because of hemorrhoids. She testified she had constant pain, constant bleeding and was not able to take a bowel movement without screaming.

Cross-Examination of D.D.

[12] In cross-examination D.D. testified that in November 2017, F. made her cash her cheque because she had ripped up his cheque, which was for $762.00. Her cheque was bigger. D.D. testified the sexual assault happened on either the night of November 1 or the morning of November 2 because that is when the cheques come in. D.D. believed J.N. was in jail but then said J.N. was not in jail on November 1. The incident involving the cheque occurred before the sexual assault, in the morning. The sexual assault occurred throughout that night.

[13] D.D. testified on numerous occasions during her cross-examination as to her memory problems and "fuzziness in her recollection" because of the 10 years she was on methadone. She was a hundred per cent about the cheque incident happening on November 1, 2017. She also described how she had been diagnosed with bi-polar disorder and PTSD and that she took medications for these mental health issues. She admitted not taking her medications for her mental health issues. She testified she sometimes suffers from delusions and hallucinations.

[14] The 15 centimetre tear occurred in February. It hurt from November on and that was when the bleeding started but it got continually worse and uncontrollable in February 2018. D.D. denied ever having hemorrhoids. She testified she went to her family doctor after the first incident because she thought it could be hemorrhoids. J.N. drove her to Dr. Fung's office. Dr. Fung had been her doctor for five or six years. D.D. signed a consent form for Dr. Fung to provide the police her medical records from November 2017 because she told the police she went to her doctor in November concerning the bleeding.

[15] D.D. also saw him in February 2018 and March 2018. On November 17, 2017, she saw Dr. Fung and told him about what happened, he examined her and he saw the bleeding. J.N. drove her there.

[16] When it was put to D.D. that Dr. Fung did not have anything in his medical notes about D.D. describing bleeding in her anus from being sexually assaulted she testified she believed the reason for this was because Dr. Fung did not want to get involved. D.D. then testified she had been to the hospital many times concerning the bleeding. She agreed she did not tell the officer this in her statement on March 21, 2018.

[17] D.D. agreed J.N. was charged with 21 offences in relation to her on November 24, 2017 and was in custody for a period of time, until December 1, 2017. D.D. agreed J.N. drove her to the doctor in the early part of November.

[18] When Ms. Samat put to D.D. that F. did not attend with her on November 1 to go to the bank, D.D. testified that was a lie as she went in a cab with her two children and F. in the morning of November 1 because it was her November cheque. Although she may mix up dates she remembered that one.

[19] D.D. maintained after the November incident she had bruising, visible bruising on her legs into the month of December 2017. She agreed she provided a statement respecting J.N. to the police in November 2017 and there were photographs taken of injuries to her legs from him hitting her with a car.

[20] D.D. accused Ms. Samat of being nasty towards her when she cross-examined her at a previous trial involving J.N.. It was agreed by counsel this was another female defence lawyer who cross-examined D.D. at J.N.'s trial. D.D. finally agreed with Ms. Samat that she had never been cross-examined by Ms. Samat previously.

[21] D.D. agreed that she did not tell the female police officer, D.C. Ormande, during her statement on March 21, 2018, that F. had forcibly confined her all day and night when the sexual assault occurred. She did not tell the officer about the cheque incident that happened that same day in the morning.

[22] D.D. agreed another marker for when the November assault occurred was that J.N. drove her to the doctor's office on November 17, 2017.

[23] Ms. Samat pointed out a number of things D.D. had not told the officer in her video statement compared with her testimony in court, for example, she did not tell the officer about the rope being around her feet or that N.C. was at her apartment with F. for most of the day when the issue with the cheque occurred. D.D. agreed that when she was explaining something, sometimes things did not come out and they would come out after. She agreed her evidence would change as time passed but she did not mean to, it was just worded different and she was still telling the truth. D.D. testified part of the reason was she did not want to remember.

[24] D.D. at one point in her cross-examination did not want to continue being questioned because she believed no one would ever believe what she was saying. She testified, "I can see where this is going. Can I leave please? It doesn't matter what I say, nobody is going to believe me and he's going to walk. So can I leave please? I can't do this anymore. I can't do this." I indicated to D.D. I wanted her to continue as I had not heard all of the evidence and I had not made any decisions. If she needed a moment to compose herself I told her I would take a recess to allow her to do that. I had previously taken a number of recesses to allow her to compose herself in both her evidence in chief and cross-examination. She indicated on this occasion she was able to continue.

[25] Although D.D. had originally maintained she had told Dr. Fung in November about the sexual assault, she changed this evidence saying she did not discuss the sexual assault with Dr. Fung in November 2017. She agreed this was something she had originally said in her video statement to D.C. Ormande. She testified she lied to the doctor by not telling him because he was F.'s doctor too.

[26] In her statement she told the police she had bled for two weeks after the November assault. It was suggested to D.D. she did not have any discussion with her doctor about blood and she responded, "I had the conversation with the doctor, and he asked me, 'Why would you be bleeding down there. Are you sure it's not your hemorrhoids?'" The doctor gave her an opportunity and she did not say anything to him. It was the next time she went back that she told him about the sexual assault. D.D. testified she had a specific recollection of speaking to Dr. Fung about this in December 2017.

[27] D.D. testified the sexual assault in November 2017 went on for a couple of hours and she never said it went on for eight hours. When she was confronted with her statement to D.C. Ormande that she "sat there from 11:00 till 7:00 in the morning while he anally had sex with [her]," she testified she should have said she laid on her stomach and she got the times wrong because it was not eight hours.

[28] When it was put to D.D. that F.J.N. was in custody from October 26 to November 22, 2017, she strongly disagreed and testified F. was there. When Ms. Samat put her visit to Dr. Fung on November 17, 2017, to D.D., she responded, "You keep asking me dates. He still assaulted me. I'm telling you I'm in recovery. I screwed up. My memory is not good. I don't know the exact date." She maintained later, "I'm wrong with my dates. It happens when you're on methadone 10 years," and "I don't have a great memory."

[29] D.D. maintained the only reason she went to the doctor in November was because her "ass was bleeding with blood."

[30] When she was asked whether she was taking her medications regularly for her bi-polar disorder during this time period D.D. responded, "This is not fair. Just because I wasn't taking my meds, that's not fair." She agreed it was a difficult time for her psychologically. She agreed it would be difficult for anyone in her circumstances to give a proper and accurate account of what happened.

[31] D.D. testified she was a hundred per cent sure nobody else did anything to her that would have caused bruising to her legs. When her evidence on J.N.'s trial in May 2018, was put to her without any details, D.D. immediately responded if this was about J.N. running her over with the vehicle that was to her knees not her thighs. She then added there was no bruising by J.N. because he never hit her with the vehicle. D.D. did not recall saying to Mr. Hendry during this trial that the bruising to her legs from the sexual assault was "all over." She did agree she never pinpointed the location of the injuries.

[32] The transcript from the May 2018 trial involving J.N. was put to D.D. and she agreed she testified that she told the court she had bruises all over her legs as a result of J.N. striking her with the car.

[33] D.D., on Day 2 of her evidence, testified she went to the doctor's in November but could not get up the "guts" to say anything. She went back in February and that is when she confessed to the doctor. She agreed she did not tell the officer about going to the doctor's office in February. D.D. testified the doctor looked at her at the February 2018 visit and said to her, "Those aren't hemorrhoids." D.D. testified it was not an internal examination but she took her pants off and he looked at her and she did not want to continue. He did this same examination in November as well.

[34] D.D. again brought up her problem with mental illness and memory. She agreed sometimes her memory cannot be trusted. "Sometimes I exaggerate, sometimes I just don't want to speak about it. Sometimes the information comes along a little bit slower than it should be coming…I did a lot of drugs and I'm paying for it now."

[35] D.D. confirmed she testified she had a 15 centimetre tear in her anus, which is still bleeding. It has bled every day and has never stopped. She testified it bled from November 2017 until the day she was testifying. She did not remember what she told D.C. Ormande about bleeding. She did not want to review her transcript from her statement. In her statement D.D. told the officer:

"I bled for almost two weeks. I thought it was my hemorrhoids. No, I was pissing blood. Pardon my French. I have not been to the doctor's. I don't want to go to the doctor's. I don't know if he's done damage, because it still bleeds, honestly."

[36] D.D. agreed this was different from what she was telling the court. She also agreed she never told the police in her statement she had a 15 centimetre tear in her anus. She agreed this was a pretty important detail she left out.

[37] D.D. agreed in her police video statement she told the police F.J.N. ejaculated on her bedroom wall after he sexually assaulted her. A police officer came to her apartment and took samples from her wall in February 2018.

[38] D.D. again reiterated she was not taking her medication properly or regularly until July 2018.

[39] On February 23, 2018, D.D. gave a statement to a DRPS detective concerning her allegation F.J.N. had been sexually assaulting her oldest daughter, I.D. She agreed after she gave this statement she was in the dark as to how the police were responding to her allegations until they told her on March 27, 2018, they were not going to lay charges. She found this exceptionally frustrating. She denied contacting police on March 21, 2018, about Mr. F.J.N. sexually assaulting her to get back at him. She agreed she relinquished custody of her daughters to the CAS while the matter was being investigated by police. She denied she was trying to get back at F.J.N. because she believed he had sexually assaulted I.D.

Evidence of K.D. (D.D.'s Mother)

[40] K.D. is D.D.'s mother. She has Epilepsy and was involved in a motorcycle accident that caused a head injury. As a result she has short term memory loss problems.

[41] Sometime in November K.D. was in her daughter's apartment and she was sitting on the couch. The bathroom is close to the living room and she saw her daughter pulling down her pants. She observed her daughter had bruising to the inside of her thighs. D.D. told her this was from J.N. hitting her with his car. She did not believe her because the marks from that incident were on her knees. It was estimated by counsel that K.D. was sitting approximately 20 feet from the bathroom.

[42] K.D. testified she did not pursue this with her daughter but she did at another time. She cannot say when she brought it up again. In February D.D. sent her a picture with blood. D.D. told her mom the blood was coming from her bum. K.D. went and stayed with her daughter for a few days. She spoke to her daughter on the phone about the picture. There was no discussion as to what caused or why it was the bleeding. At some point when she was staying with D.D. she asked if something had happened to her and D.D. told her F. had raped her on two occasions. The two children were not with D.D. because they were in the care of CAS.

[43] K.D. identified Exhibit 1 as the photo sent by D.D. to her. The photograph was sent to her sometime in February 2018. On an occasion when she was staying with her daughter, she bent down to pick up an orange rope which had secured the fridge door and her daughter had yelled, "Don't touch that." Her daughter told her about the rape first and the rope after.

[44] K.D. was aware the children were with CAS because of an allegation respecting J.N. or F., she cannot recall which one.

Agreed Statement of Facts

[45] An agreed statement of facts was marked as Exhibit 6. On February 16, 2018, both J.N. and F.J.N. were charged with breaching probation by being in contact with D.D. J.N. was also charged with a number of other offences involving D.D., such as assault, mischief and fail to comply charges and was held in custody until May 2018.

[46] On February 21, 2018, police were advised about concerns that D.D.'s children had been touched sexually in an inappropriate manner by F.J.N.. D.D. told police she found her daughter's panties in Mr. F.J.N.'s pants' pocket and his backpack, which she had removed and threw into the garbage. She told the police where the garbage bags were and when they were searched no panties were found. On this same date F.J.N. was arrested for knocking on D.D.'s apartment door for breach charges. He advised there were personal belongings of his in the apartment. When D.D. brought out his backpack and gave it to the police, they found a young girl's pair of panties inside.

[47] On March 1, 2018, I.D. was attempted to be interviewed by SCAN at Sick Kid's Hospital but because she was not able to communicate because of a delayed diagnosis the interview did not support D.D.'s allegation.

[48] On February 22, 2018, D.D. allowed her children to go into care with CAS after she was advised they would be removed if she was not willing to relinquish custody from her care.

[49] On March 16, 2018, D.D. reported to police two allegations of sexual assault against F.J.N.. On March 21, 2018, D.D. provided a video-taped statement to police concerning those allegations. She alleged Mr. F.J.N. ejaculated onto the bedroom wall and there were semen stains there. The CFS did testing, which did not find any evidence of semen stains on the bedroom wall. The CFS report was filed as of Exhibit 7.

[50] On March 27, 2018, D.D. was advised the police would not be laying charges against Mr. F.J.N. in respect of D.D.'s allegation of sexual abuse involving I.D. On April 9, 2018, F.J.N. denied any physical or sexual abuse towards D.D.'s children. Mr. F.J.N. was interviewed while he was in custody. Mr. F.J.N. told police he believed D.D. was making false allegations against him as a result of his helping his brother J.N. gain custody of their daughters. This fact was part of the Agreed Statement of Facts, Exhibit 6.

Dr. Fung's Evidence — Procedural Issues

[51] Dr. Fung was supposed to testify on December 5, 2018, however, his evidence was postponed because of his revelation to the Crown that he recalled certain information not written in his medical records and notes relating to his care of D.D. He initially provided some information when the Crown met with him before court to explain the court process. He had provided further medical notes respecting D.D. in relation to his appointments with her from December 2017 to April 2018, which were in addition to his medical notes from November 2017. The police had already obtained D.D.'s consent for the release of these notes and after D.D.'s testimony had obtained a further consent from her concerning Dr. Fung's medical notes from this additional period of time.

[52] I expressed to counsel my concern that the provisions of s. 278.1 and the sections following s. 278.1 of the Criminal Code of Canada had not been followed respecting the release of Dr. Fung's medical records, both at first instance and after D.D. had testified. It would appear the police had obtained the November 2017 medical records and then disclosed them to the Crown, who in turn disclosed them to the defence. This process was followed after D.D. testified. These provisions in my view are mandatory and cannot be circumvented by agreement between counsel. I raise this to hopefully ensure this will not occur in a future case and the provisions will be properly followed by both police and the Crown and that an application will then be brought by the defence pursuant to s. 278.3. D.D. was entitled to be represented by counsel, which did not occur. Further, production of medical records can only be ordered by the court pursuant to the considerations indicated in those sections. The medical records were clearly relevant to these proceedings, however, a scheme has been in place since 1997, which the police and all parties must follow.

[53] After Dr. Fung advised the Crown of this new information, things Dr. Fung recalled from February 2018, approximately 10 months previously that he had no notes in respect of, the Crown advised immediately Ms. Samat so she could obtain instructions from her client concerning this new information. While Ms. Samat was obtaining those instructions, Dr. Fung sought out the Crown a second time and began to advise him of further new information. At that point Mr. Hendry brought in D.C. Ormande and requested she take a written statement from Dr. Fung. Apparently, Dr. Fung had not been interviewed prior to this occasion.

[54] As a result of this new statement and information provided by Dr. Fung, F.J.N.'s trial was adjourned to December 20, 2018.

Dr. Fung's Testimony

[55] On December 20, 2018, Dr. Fung was called by the Crown. Dr. Fung has been a family practitioner since 1984. D.D. was his patient. He had provided to the police, as a result of D.D.'s consent, his medical records from October 2017 until April 2018. Dr. Fung saw D.D. in November 2017. She did not complain about anything and made no complaints about any trauma. She had an appointment for December 11, 2017 but she did not show up.

[56] On January 28, 2018 she had another appointment. Again, she did not complain about anything. She did have an issue regarding rectal bleeding. There was no conversation about the source of the rectal bleeding. This was a very common problem that anyone can handle according to Dr. Fung. A conservative diet could deal with this issue. He did an examination, digital rectal examination, and did not find any tears. He looked at the anal canal and did not observe any tears or fissures. He used a speculum and it was a quick examination and was not intrusive. She had concern about a lump in her right breast.

[57] D.D.'s next appointment was February 9, 2018. There was no complaint about rectal bleeding. He did not follow up with her what she had discussed at the previous visit. There was follow-up on her breast issue and Dr. Fung sent her for a mammogram. Her next appointment was on March 2, 2018 and there was no discussion about rectal bleeding or any complaint.

[58] D.D. next saw Dr. Fung on March 29, 2018. He remembered this was a Thursday and D.D. wanted to discuss something with him. Dr. Fung indicated the complaint of rectal bleeding came up but he did not examine her as it was already past 8:30 pm. It was during this visit that D.D. told Dr. Fung concerning her allegations against F.J.N. physically and sexually assaulting her.

[59] It should be noted the Crown wanted to have Dr. Fung recount what D.D. had told him concerning her allegations, however, this appointment was thirteen days after D.D. first spoke to the police and eight days after she provided her video-taped statement. In my view the doctrine of recent fabrication did not apply to Dr. Fung's evidence as anything said by D.D. was after her complaint to the police. I ruled Dr. Fung was not permitted to recount what D.D. had indicated to him as it would oath helping and similar to the Crown wanting to play D.D.'s statement as her evidence. What was troubling about Dr. Fung's evidence was his very strong desire, despite being advised he was not to tell what D.D. had told him about her allegations, to recount what she had told him. On at least three occasions Dr. Fung had to be warned by myself not to stray into giving evidence as to what he was told by D.D. It was my view he was attempting to be an advocate on her behalf and he clearly had an agenda to assist her.

[60] It was Dr. Fung's evidence he decided not to do an examination of D.D. He had previously done a digital examination and he did not note anything. He testified to properly determine if there was a tear or fissures he would have to do an examination with an endoscopy. He testified it appeared to him to be hemorrhoids or constipation or diarrhea. An internal hemorrhoid cannot be determined by a digital rectal examination. When he had done this examination previously he had not detected any issues whatsoever. If there had been on-going issues he would have referred her to a specialist, which he did not do.

[61] He saw D.D. on October 14, 2017, four days after she had been released from rehab. He saw her November 17, 2017 and there were no complaints. His note in his chart indicated the complaint was about blood in stool. He met with D.D. on a monthly basis and was continuously following up with her. He wanted to ensure he noted every issue she addressed with him during a visit and to make sure those issues were addressed by him. He would follow-up any issue from the previous month. There was no follow-up about bleeding in the February appointment or on March 2, 2018.

[62] In his medical notes from March 29, 2018, there was no mention of D.D. complaining about anal or rectal bleeding. He spent time with her on this day and made notes of his interaction with her at the end of the day. If she had complained of rectal bleeding he would have noted it. He did not make any detailed notes concerning her allegations of physical or sexual assault. He made a notation as to which of the medications were working for her. He noted her weight, which was done by his lady who works in his office. There is no notation about rectal or anal bleeding in his notes. He did not refer D.D. to an internal doctor specialist to be examined.

[63] Dr. Fung agreed if someone is bleeding in their rectal area for a long time they should be referred to a specialist. He did not make any referral.

[64] On January 28, 2018, Dr. Fung did not get D.D. to provide any stool samples.

[65] Dr. Fung testified he was not advised about the order excluding witnesses. He met with D.D. in September and October 2018. When Dr. Fung was asked if he and D.D. talked about her evidence he testified there was mentioning of F.J.N.. D.D. did not talk about any bleeding in September or October 2018. Dr. Fung attempted to suggest he did not always write everything down but he had already agreed he kept detailed accurate and comprehensive notes.

[66] Dr. Fung agreed he provided all the details of his conversation with D.D. from March 29, 2018. He agreed he did not leave anything out. There is nothing in his statement to D.C. Ormande about D.D. complaining about rectal or anal bleeding during that meeting and discussion.

[67] In re-examination Dr. Fung testified he recalled D.D. mentioning rectal bleeding on March 29, 2018. He testified he would have followed up in the future. He testified there were no other complaints by D.D. about rectal bleeding in April or May 2018 visits.

Assessment of Dr. Fung's Credibility

[68] As I expressed earlier, in my view Dr. Fung's impartiality and objectiveness was called into question throughout his evidence. In my view he repeatedly attempted to be an advocate for D.D. He initially indicated in cross-examination he told D.C. Ormande everything he recalled about his conversation with D.D. and it was reflected in the typewritten statement he signed. Yet in re-examination he testified he recalled D.D. mentioning rectal bleeding on March 29, 2018 despite just minutes before agreeing he had not told D.C. Ormande this was part of their discussion. Further, he did not note this complaint in his medical notes and this would have meant D.D. had complained about this particular issue, if his recollection was true, on at least three occasions and if this was true he should have referred her to a specialist or at the very least conducted his own endoscopy examination, which he never did.

[69] Finally, the one thing Dr. Fung never observed or told D.D. about was the fact she had a 15 centimetre tear in her anus or anal canal. This did not occur.

Analysis

Crown's Submissions

[70] It was the Crown's submission that D.D. did her best despite the many struggles she has experienced in her life. She has overcome addictions and mental health issues. The Crown pointed to how D.D. stood up for F.J.N. in saying he normally would not do anything like this and blaming his actions on alcohol and/or drugs. He pointed to D.D.'s mother as corroborating the injuries to the inside of D.D.'s thighs in November 2017 and her daughter's reaction to the orange rope that was keeping the refrigerator door closed when her mother handled it.

Credibility and Reliability Issues

[71] The difficulty with D.D.'s evidence were the numerous inconsistencies between her police video-taped statement and her evidence in court, as well as the inconsistencies between her evidence in-chief and in cross-examination. D.D. had significant difficulties with her reliability, which she admitted on many occasions were because of her addiction to crack cocaine and being on methadone for ten years, which caused her to have problems with her memory in respect of dates and details. She had been diagnosed with mental health issues, bi-polar and PTSD and had been prescribed medication, which she testified she rarely took. Further, there were significant inconsistencies between D.D.'s evidence and the evidence of Dr. Fung.

The 15 Centimetre Tear — Fabrication

[72] The most significant inconsistency was her evidence in-chief that she had a 15 centimetre tear in her anal canal. This knowledge could have only come from Dr. Fung. She testified she complained to him of bleeding from her rectum or blood in her stool. Dr. Fung testified he did not do a rectal digital examination on November 17, 2017 and his notes indicated he believed D.D.'s blood in her stool was likely caused by hemorrhoids. Dr. Fung never told D.D. she had a 15 centimetre tear in her anal canal or anus. The only time Dr. Fung did a digital rectal examination was on January 28, 2018 but he did not discover any tears or fissures. He believed her complaint of blood in her stool was likely hemorrhoids, constipation or diarrhea and was easily corrected by diet.

[73] This was not something D.D. could have been mistaken about because of a misunderstanding of what Dr. Fung had told her. In my view this was an outright fabrication on D.D.'s part in an attempt to support her allegation against F.J.N.. In fact, when she was confronted with Dr. Fung's November medical notes not containing anything about a tear she changed her evidence and said Dr. Fung did the examination in February after the second assault, however, Dr. Fung did not examine D.D.'s rectum in February 2018.

Custody Timeline — November 1 Assault Impossible

[74] A further difficulty was the fact F.J.N. was in custody at CECC in Lindsay from October 26 to November 22, 2017. D.D. testified the first sexual assault occurred on November 1, 2017, however, F.J.N. was in custody on that date. D.D. testified she was a hundred percent on the accuracy of this date because it was in respect of F.J.N.'s welfare cheque for November, which he received on the first day of the month. F.J.N. was angry and upset with D.D. because he believed she cashed this cheque. Yet F.J.N. could not have been in her apartment on that date or even a day or two or three or a couple of weeks afterwards, as he was in custody. She testified it was at her November appointment with Dr. Fung (November 17) that she told Dr. Fung what Mr. F.J.N. had done to her by raping her anally and this was what had caused her to be bleeding from her rectum. She testified she told Dr. Fung she had been bleeding for two weeks. Her evidence was in direct conflict with Dr. Fung's testimony.

Conclusion on November Assault — Outright Fabrication

[75] It is my view D.D.'s evidence as to what she told Dr. Fung is an outright fabrication for the following reasons: First, F.J.N. could not have sexually assaulted D.D. from October 26 to November 22, 2017, as both the Crown and defence agree, he was in custody based on the affidavit from CECC. Second, Dr. Fung never examined D.D.'s rectum on November 17, 2017, according to his medical notes and his evidence. Third, according to Dr. Fung D.D. never told him about her allegations of sexual assault by F.J.N. until the March 29, 2018 appointment and did not say anything about a sexual assault in the November 17, 2017 appointment. Fourth, Dr. Fung never told D.D. she had a 15 centimetre tear in November of 2017, he never examined her on November 17 or even in February 2018 as he did not examine her. Fifth, when D.D. was advised there was nothing in his November 2017 medical notes about her telling him about F.J.N. anally raping her, D.D.'s explanation was that Dr. Fung did not want to get involved. Given my assessment of Dr. Fung's evidence earlier in these reasons, it is my view Dr. Fung had spoken with D.D. concerning her evidence during his appointments after she testified in July 2018 and it was my view he definitely wanted to assist her and attempted to do so when he testified despite being instructed he was not to talk about what D.D. told him on March 29, 2018.

[76] The only reasonable conclusion for these significant discrepancies between D.D.'s evidence and Dr. Fung's evidence and his medical notes was that D.D. lied about her conversations with Dr. Fung in November 2017. In my view these lies were deliberate and they substantially diminish D.D.'s credibility and lead to the irresistible conclusion her allegation of sexual assault in November 2017 against F.J.N. did not occur. At the very least I have a significant reasonable doubt about F.J.N.'s guilt and it would be dangerous to base a conviction on D.D.'s evidence.

Changing Evidence and Fallback Positions

[77] When D.D. was told by defence counsel that Dr. Fung had no notes about these things D.D. testified then she must have told Dr. Fung about them at her December 2017 appointment yet she missed her appointment with Dr. Fung in December because she did not show. She then testified she must have discussed it with him in February 2018 but she did not as I have already indicated.

[78] Throughout her evidence whenever D.D. was confronted with contrary evidence she had a fallback position that her memory was terrible because she had been on methadone for ten years or she was not taking her medications for her mental health issues during this time, which caused her memory to be bad. At one point in her evidence she volunteered she was having delusions and hallucinations because she was not taking her psychiatric medications and from her extended use of methadone. At another point in her evidence she denied having hallucinations. At yet another point in her testimony she described starting to take lithium in February 2018 and that this medication had an adverse effect on her.

[79] She also blamed her difficulty with dates, as to when things occurred, on all of her struggles, however, it was not only dates she had difficulties with, it was also the details of events that she relied upon to inform her as to the dates she believed her allegations occurred. She admitted in cross-examination she understood what she said in her statement was different from what she was saying in court and she understood what counsel was getting at and she did not know how to answer or explain this. She testified, "Sometimes I exaggerate, sometimes I just don't want to speak about it. Sometimes the information comes along a little bit slower than it should be coming right now, but it doesn't. I don't have an answer for that, I did a lot of drugs and I'm paying for it now."

Multiple Inconsistencies in D.D.'s Account

[80] The issue concerning F.J.N. being upset and angry she had cashed his welfare cheque came up in her evidence in court for the first time. She never mentioned this to D.C. Ormande in her video-taped statement. However she testified she was one hundred percent sure the cheque issue occurred on November 1 and this was the same day that F.J.N. anally raped her. In her police statement she told D.C. Ormande F.J.N. anally raped her for eight hours, yet at trial she testified it only lasted a couple of hours. She further testified at trial F.J.N. confined her to her apartment from morning to night when he then sexually assaulted, yet in her police statement she never said she was confined by F.J.N., rather, Mr. F.J.N. was out for most of the day and she did not know where he was until he came home in the evening when he raped her. She never mentioned F.J.N.' friend, N.C., was present in her apartment during the confinement in her police statement. D.D. told the first officer the first sexual assault occurred in the living room on the couch and in the bedroom but told D.C. Ormande it occurred in the bedroom on the bed. In her police statement she said Mr. F.J.N. ejaculated only once but at trial she testified he ejaculated a number of times. Her evidence as to when she took the photograph changed from her police statement, on March 15 to her evidence at trial where she said it was not taken, in February 2018, which she was 100% sure about.

[81] D.D.'s evidence changed when she was confronted by the fact Dr. Fung had nothing in his notes in November about D.D. telling him about sexual assault. Now she testified she must have told him in February 2018. Yet, according to Dr. Fung's medical notes and his evidence D.D. did not tell him anything about a sexual assault in the February appointment or during the March 2, 2018 appointment. In fact she did not say anything to Dr. Fung about being sexually assaulted by F.J.N. until after she went to the police, providing two statements on March 16 and 21, 2018. In my view D.D.'s willingness to change her evidence at will whenever she was confronted with contrary evidence that called into question the accuracy of what she was saying weighs heavily against her credibility and her reliability as a witness.

Inconsistent Bleeding Complaints

[82] In fact, at one point in her cross-examination D.D. changed her evidence concerning the frequency of the bleeding from her rectum from testifying it had bled every day the two weeks after the November 2017 assault to the bleeding occurring every day from November 2017 until the day she was testifying in court on July 18, 2018. This evidence was completely inconsistent with Dr. Fung's evidence, who testified she only ever complained on two occasions about blood in her stool and he believed it was caused by hemorrhoids, constipation or diarrhea and he advised her it could be corrected by diet. If she had repeatedly complained about rectal bleeding Dr. Fung testified he would have referred her to a specialist.

Semen Stains — No Evidence Found

[83] D.D. told the police in her statement that during the February assault F.J.N. ejaculated on the wall in the bedroom. After providing her video-taped statement D.D. showed the police where this occurred in the bedroom and they took samples, which were sent to CFS and tested. Exhibit 7 is the CFS report respecting these samples from the wall of D.D.'s bedroom, which found no semen and no DNA.

Bruising Evidence — Alternative Explanations

[84] With respect to the K.D.'s evidence, she was unable to indicate when in November she saw the bruising to her daughter's inner thighs. This is important because of the dates F.J.N. was in custody. In addition, both D.D. and K.D. testified that J.N. was charged with running down D.D. with his car and the fact he was incarcerated from the date of that occurrence on November 24, 2017. At J.N.'s trial in May 2018, D.D. testified as a result of being struck by J.N.'s car she had bruising all over her legs. K.D. was aware of J.N. striking D.D. with his car and that it caused injuries to her daughter's legs. In my view, there are other reasonable explanations for how the injuries to D.D.'s inner thighs as seen by her mother were caused apart from D.D.'s allegation of her being sexually assaulted by F.J.N..

Orange Rope Evidence — Unreliable

[85] The evidence of K.D. concerning the rope being used by her daughter to tie around the refrigerator to keep the door closed as it was broken. I do not accept K.D.'s evidence on this. Further, D.D.'s evidence concerning the orange rope is internally inconsistent as to how it was used or how F.J.N. would have known where to find it, as it was in his brother J.N.'s tool box, according to D.D. D.D. gave a couple of different descriptions of how F.J.N. tied her up with the orange rope that were inconsistent.

Motive to Fabricate — Allegations Against Daughter

[86] Finally, it was clear from D.D.'s evidence that she believed F.J.N. was sexually assaulting her oldest daughter I.D. In the Agreed Statement of Fact, Exhibit 6, D.D. told the police on February 21, 2018 that she found her daughter's panties in F.J.N.'s pants' pocket and in his backpack, which she removed and threw out in the garbage. She told the police the panties were in the garbage bags at the end of the driveway. The police went through those garbage bags and did not find the children's panties D.D. said she had put there. On the same date, F.J.N. was arrested at D.D.'s apartment attempting to obtain his backpack, which the police had D.D. retrieve. When the police searched the backpack they discovered a pair of girl's panties. Yet D.D. had already told the police earlier on that day she had removed her daughter's panties from F.J.N.'s backpack and jeans and put them in the garbage. The fact a further pair of a young girl's panties was found in the backpack, in my view raises a question whether D.D. had put the subsequent pair of panties the police located into the backpack. D.D. admitted she was extremely upset with F.J.N. because she believed he had sexually assaulted her daughter. On February 22, 2018, D.D.'s daughters went into care voluntarily with CAS, which on D.D.'s evidence was upsetting to her. The police had not charged F.J.N. with sexually assaulting her daughter by the middle of March and that is when D.D. went to the police and complained about F.J.N. anally raping her on two previous occasions, November 2017 and February 2018. Ms. Samat submitted D.D. had a motive to fabricate these two charges against F.J.N. when she provided her two statements to police, on March 16 and 21, 2018. The police advised D.D. on March 27, 2018 that no charges were being laid against F.J.N. respecting her daughter I.D.

[87] In my view this is another circumstance that raises concerns about accepting D.D.'s evidence of the sexual assault perpetrated on her by F.J.N..

Overall Assessment of D.D.'s Credibility

[88] I have set out a number of examples of the inconsistencies in D.D.'s evidence, which raise concerns about her credibility and reliability. Further, I have also described what I believe were occasions when D.D. deliberately lied to the court, in particular, concerning her evidence that Mr. F.J.N.'s sexual assault caused a 15 centimetre tear to her anus. There is no evidence to support this assertion and in fact, the evidence of Dr. Fung contradicted it and demonstrated its falsehood. In my view, for all of the reasons indicated above it would be unsafe to base a conviction upon the evidence of D.D. as I have serious doubts as to her veracity and credibility and her reliability.

Disposition

Sexual Assault Charges — Dismissed

[89] As a result the two charges of sexual assault are dismissed.

Breach of Probation Charge — Dismissed

[90] The defence and Crown did not make any submissions respecting the fail to comply with a probation order made by the Ontario Court of Justice on February 11, 2015, namely a non-association and communication condition respecting D.D. and J.N.. The probation order was marked, on consent, as Exhibit 4. There was evidence filed by way of an affidavit by Rick Camman, Security Manager at the Central East Correctional Centre (CECC) as Exhibit 5 that F.J.N. was in custody at CECC between October 26 and November 22, 2017, and therefore would not have been able to attend at D.D.'s apartment or associate with her during that time. Having regard to my findings of fact and assessment of D.D.'s credibility and reliability in my view it would be unsafe to find Mr. F.J.N. guilty of the breach of probation charge when her evidence was the contact was on November 1 and 2 when he was in custody. For those reasons this charge is also dismissed.

Released: January 14, 2019

Signed: Justice Peter C. West