Ontario Court of Justice

DATE: 2021-01-13 Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JUSTIN OSMOND (AKA BIGGAR)

Before: Justice Mara Greene

Reasons for Judgment released January 13, 2021

Counsel: E. Evan, for the Crown B. Funston, for Mr. Osmond

M. Greene, J:

[1] Justin Osmond (a.k.a. Biggar) is charged with assault causing bodily harm in relation to A.N., a young person who was in his care from 2016 until 2018. Mr. Osmond pled not guilty to the offence. The focus of the trial was on the reliability of A.N.’s evidence and the potential for another perpetrator.

Background

[2] A.N. is presently six years old. She was five at the time of the allegations. When A.N. was 20 months old she was placed in foster care with S.N. and H.N. She remained in this residence until 2016 at which point, A.N. was placed in the care of Tiffany Brilliant (a good friend of A.N.’s biological mother). Ms. Brilliant was living with Justin Osmond and their daughter Hailey at the time. Hailey is two years older than A.N. When Ms. Brilliant took over the custodial care of A.N., she agreed to allow regular visits with H.N. and S.N. As a result, for three years the two families appear to have effectively co-parented A.N. without incident.

[3] On August 10, 2019, A.N. suffered injuries to her neck and face. A.N. spoke to numerous people about how she was injured including: a) two different statements to H.N. and S.N.; b) a statement to Neelum Bayard; c) a statement to Det. Pantopoulos; d) a statement to a CAS worker, Cassandra; and, e) a statement to Jeneen Moddejonge.

[4] At the time of her statement to H.N. and S.N., A.N. was in their care. She was still in their care when she spoke to Ms. Bayard and Det. Pantopoulos. A.N. was in the care of Ms. Brilliant’s mother when she spoke to Cassandra. It is my understanding that when A.N. met with Ms. Moddejonge she was still living with Ms. Brilliant’s mother but had regular visits with H.N. and S.N. H.N. took her to the meeting with Ms. Moddenjonge. At the time of trial, H.N. and S.N. had obtained full custody of A.N.

The Allegations

(a) Statements to H.N. and S.N. on August 10 and 11, 2019

[5] On August 10, 2019 H.N. and S.N. picked up A.N. from Ms. Brilliant’s residence. They arrived at approximately 2:00 p.m. According to H.N. and S.N., A.N. had been with Ms. Brilliant and Mr. Osmond since August 8, 2019. When they dropped her off at Ms. Brilliant’s residence on August 8, 2019, A.N. did not have any visible injuries to her face or neck.

[6] When H.N. and S.N. picked up A.N. on August 10, 2019 they did not notice anything amiss. A.N. ran to H.N. and hugged her leg. She then went into their vehicle. H.N. remained outside and spoke to Ms. Brilliant for a short time in order to arrange a play date for the following week between Hailey and A.N.

[7] H.N. and S.N. then took A.N. to Toys’R’Us to buy her a doll. According to video footage from the store, they arrived at the store at around 3:00 pm. As they walked into the store, but before they arrived at the doll aisle, H.N. noticed marks on A.N.’s neck. She then pointed them out to S.N. S.N. testified that he saw puffiness to the right side of her lip and an abrasion or a scrape on the left side of her chin area. He also saw redness to the right and left side of A.N.’s neck.

[8] According to S.N., while still in the store, H. N. asked A.N. how she got the marks on her face and neck. A.N. responded that she did not want to talk about it. They then quickly located the doll that A.N. wanted, paid and left the store. S.N. estimated that they were in the store for 10 to 15 minutes. According to the receipt from Toys’R’Us, they left the store around 3:19pm. S.N. further estimated that it took them another 15 to 20 minutes to get home. According to S.N.’s estimates, they would have arrived home at approximately 3:35 or 3:40pm. H.N. estimated that they arrived home at approximately 3:45 p.m.

[9] S.N. testified that once home, S.N. put A.N. up on the counter in the kitchen to look at the markings further. H.N. then took photographs of the injuries with H.N.’s smart phone. These photographs were ultimately seized by Det. Pantopoulos. According to the time stamp on the photos, the first photograph was taken at 3:58 p.m.

[10] S.N. testified that as they examined A.N. more closely, he saw more redness on her neck when she moved it. Both H.N. and S.N. testified that A.N. was very upset and was crying. When asked who caused these marks, A.N. stated that it was Hailey. According to S.N., A.N. told them that she and Hailey got into a fight and that Hailey pushed her off the bunkbed causing the injuries. At approximately 5:00 p.m., A.N. fell asleep and slept until morning. She did not even want to eat dinner.

[11] In the morning over breakfast, A.N. repeated that Hailey caused the injuries. She told H.N. and S.N. that Hailey pushed her off the bed. When asked about the marks on her throat, she said that Hailey also choked her. H.N then told A.N. that she should not lie and say it is someone else. They also told her that they would have to go to the police and say it was Hailey and that Hailey will get into trouble. H.N. and S.N. testified that they said this because they could not believe that a seven-year-old was responsible for these injuries. After being told that Hailey would get into trouble, A.N. stated that it was Justin who hurt her. According to S.N., A.N. stated that Justin grabbed her legs and throat and that she was thrown by him. S.N. testified that when A.N. was asked about why she lied she said that she was scared Justin would hurt her again.

(b) statement to Neelum Bayard on August 11, 2019

[12] On August 11, 2019, H.N. called a friend, Neelum Bayard, and asked her to talk to A.N. about what happened. Ms. Bayard agreed. Later that day, H.N. took A.N. to Ms. Bayard’s residence.

[13] According to Ms. Bayard, she noticed that A.N. had a mark on her chin and what looked like the beginning of a black eye. A.N. did not seem like her normal happy self. Ms. Bayard took A.N. outside and asked her about the marks on her face. A.N. told her that Justin hurt her. Ms. Bayard testified that while it troubled her that an adult had harmed A.N., she did not contact the police or CAS because she understood that H.N. was going to call the police.

(c) statement to Detective Pantopoulos on August 13, 2019

[14] H.N. and S.N, did not contact the police on August 11, 2019. Instead, they called their family lawyer to seek advice about what to do next. The lawyer was not available, so they left a message. They then went on a pre-planned trip with S.N.’s parents to London, Ontario.

[15] On August 12. 2019, two days after the alleged assault, H.N. and S.N. spoke to their lawyer and then, on their lawyer’s advice, contacted CAS to report the assault. H.N. was asked during cross-examination why she called her lawyer as opposed to calling CAS or the police right away. H.N testified that she chose to obtain legal advice first because she had no legal rights over A.N. and was worried about losing her access to A.N.

[16] As a result of this complaint, the police were notified and on August 13, 2019 A.N. made her first statement to the police, specifically to Det. Pantopoulos. This statement was video recorded, played in court and adopted by A.N. when she testified.

[17] In this statement, A.N. advised Det. Pantopoulos that Ms. Brilliant and Mr. Osmond have a dirty house and that it is never cleaned. She further stated that Mr. Osmond and Ms. Brilliant “never” feed her and Hailey and that they “don’t give us food”. She further stated that she and Hailey slept in the living room on the couch. Later in this statement, A.N. stated that she was in her bedroom with Hailey arguing when Mr. Osmond assaulted her. When asked further about the sleeping arrangements, A.N. stated that Mr. Osmond wanted her and Hailey to sleep on the couch in the living room and play in the bedroom where the bunk bed was.

[18] A.N. was asked several times about why Mr. Osmond hurt her. A.N. first stated that Hailey did not like her and would not let her play on the tablet they shared. A.N. then said that Mr. Osmond thought she was being mean to Hailey and that she was being a bad girl. Later in the statement when asked again how it all started, A.N. stated that Hailey was crying because she thought A.N. was being mean. A.N. did not know why Hailey felt this way.

[19] When A.N. first talked about her injuries to the officer, she stated that Mr. Osmond threw her across the room because he thought she was being mean to Hailey. She later stated that Mr. Osmond slapped her across the face because Hailey was crying. A.N. further stated that Mr. Osmond choked her and hit her once on the cheek.

[20] Later in the interview Det. Pantopoulos again asked A.N. how she got her injuries. This time A.N. stated that Mr. Osmond punched her in the eye and nose. A.N. told the Detective that Ms. Brilliant then put ice on her injuries.

[21] In this last explanation for the source of her injuries, A.N. made no mention of being thrown so Det. Pantopoulos asked her when this happened. A.N. stated that this happened at a different time.

[22] When asked about how the assault ended, A.N. stated that Tiffany put ice on it and Mr. Osmond went to work.

(d) statement to Cassandra sometime in September 2019

[23] A short time after A.N. spoke to Det. Pantopoulos, A.N. moved in with Ms. Brilliant’s mother, Amy. H.N. and S.N. lost all access to A.N. During this time, a social worker named Cassandra interviewed A.N. During this interview, A.N. made no mention of Mr. Osmond assaulting her. Instead, she told the social worker that she was injured while with H.N. and S.N. She provided information about falling on stairs, and tripping over luggage.

e) statement to Jeneen Moddejonge on September 30, 2019

[24] At the end of September 2019 H.N. and S.N. were granted visits with A.N.. On September 30, 2019, while A.N. was staying with H.N. and S.N., they took her to an appointment with a social worker at the Hospital for Sick Children. During this interview, A.N. was asked again about injuries she had suffered. A.N. advised that she received some injuries from tripping over H.N. and S.N.’s luggage. She referred to them as mom and dad. She also stated that she tripped over the stairs at their house.

[25] When asked again about the injuries, A.N. stated that she got them by someone grabbing her by the tummy and throwing her. She further stated that this happened right after she had been playing with her LOL dolls with Hailey and fighting over the tablet. A.N. then spoke about Mr. Osmond wrestling and her being hurt by this.

[26] When asked more specific questions, for example whether something happened to her neck, A.N. stated that someone squeezed her neck. When she was asked how it all ended, she stated that Mr. Osmond calmed down.

f) Evidence at trial

[27] By the time of the trial, A.N. was living full time with H.N. and S.N.. They had full custody of her, and she had not seen Ms. Brilliant and Mr. Osmond in a long time.

[28] Her evidence began with the Crown playing her statements to Det. Pantopoulos and Jeneen Moddejonge. A.N. testified that she told everyone the truth about what happened. She further testified that she told her mom and dad that Mr. Osmond choked her, slapped her, punched her and threw her across the room.

[29] When first asked about what she told Cassandra, A.N. testified that she told Cassandra the truth and that she told her the same information that she told the officer. Later in her evidence A.N. testified that she lied to Cassandra about receiving injuries at H.N.’s residence. She lied because Ms. Brilliant and Mr. Osmond told her to. Ms. Brilliant told A.N. that if she did not lie she would not be able to see H.N. and S.N. anymore.

[30] A.N. testified that Mr. Osmond choked her and that the scratches on her face were from when Mr. Osmond threw her across the room.

Analysis

[31] At trial counsel for Mr. Osmond argued that the Crown had not proven its case beyond a reasonable doubt. Counsel argued that while A.N. clearly suffered injuries, she gave conflicting versions about who caused these injuries first pointing the finger at her sister, then at the defendant, next at H.N. and then back to the defendant. It was his position that given the number of conflicting versions of events I should be left in a reasonable doubt about how A.N. was injured. In addition to the concerns about reliability defence counsel also argued that I should be left in a reasonable doubt because there is concrete evidence that H.N. is the real perpetrator.

[32] Crown counsel, in arguing that the case was proven beyond a reasonable doubt focused on the corroborative evidence of the photographs taken by H.N. and the consistent pieces of information that ran through all of A.N.’s statements. She further argued that factually it was impossible for H.N to have committed the offence.

(i) Tunnel Vision by Det. Pantopoulos

[33] During the course of the trial, there was much criticism by counsel for Mr. Osmond on the way that Det. Pantopoulos conducted this investigation. In particular, her failure to properly interview Tiffany Brilliant, her failure to attempt to obtain video footage from the hotel in London where A.N. was with H.N. on August 11, 2019 and her failure to investigate allegations made by H.N’s biological daughter against H.N. Crown counsel made numerous submissions in support of Det. Pantopoulos and urged me to find that Det. Pantopoulos’s conduct was above reproach. Respectfully, I disagree. Having reviewed all the evidence it is my view that the detective formed an opinion early on about this case and then only engaged in investigation that helped prove her case. For example, Det. Pantopolous failed to fully interview Tiffany Brilliant. It appears that despite Ms. Brilliant being the key eyewitness to the event, Det. Pantopoulos never actually asked Ms. Brilliant what took place in her house on August 9 or August 10. Det. Pantopoulos, when asked about this at trial, testified that she did not interview Ms. Brilliant because she already knew that Ms. Brilliant was going to support Mr. Osmond. I find this response troubling. It suggests that Det. Pantopoulos did not want to hear why Ms. Brilliant believed in Mr. Osmond’s innocence. I would have thought that an officer investigating this case would take steps to interview all potential eyewitnesses, not just those that were going to provide statements consistent with guilt. Even if Ms. Brilliant was going to deny that anything happened, one would still expect the questions to be posed.

[34] Another example of tunnel vision in this case comes from the fact that Det. Pantopoulos failed to even make a note of Ms. H.’s call to her about H.N. Ms. H. is H.N.’s biological daughter. After Mr. Osmond was arrested, Ms. H. reached out to the Detective to talk about her concerns around H.N. caring for A.N. Det. Pantopoulos did not even make a note in her memo book that Ms. H. had called. Det. Pantopoulos explained that in her view Ms. H. had no relevant information to give so there was no need to contact her. Respectfully, how could Det. Pantopolous know this without first calling her back to find out what she wanted to talk about?

[35] I disagree that Det. Pantopoulos ought to have attempted the secure video footage from the hotel in London. First of all, there is no evidence that such videos even existed. Secondly, even if they did exist it is unlikely that they would have captured the injuries. In my view, there is no air of reality to the suggestion that surveillance photos or videos from H.N.’s trip to London with A.N. would have provided any exculpatory or otherwise relevant evidence. Det. Pantopoulos was not required to expend limited police resources tracking down such tenuous leads.

[36] While I agree with counsel for Mr. Osmond that Det. Pantopoulos appears to have suffered from tunnel vision and as a result failed to investigate any exculpatory information, I am unable to conclude that this impacted Mr. Osmond’s ability to make full answer and defence or that it provides some basis for me to be left in a reasonable doubt. While Tiffany Brilliant was not properly interviewed by the officer, I have no evidence that interviewing her would have helped Mr. Osmond or led to a different investigation. I note that Ms. Brilliant’s evidence was available to Mr. Osmond by virtue of his ongoing relationship with her and yet Ms. Brilliant did not testify at trial. Moreover, while the officer failed to follow up with Ms. H., I did allow the defence to call her as a witness at trial. I am satisfied that I have all her relevant evidence and as such no evidence was lost by the officer’s failure to interview Ms. H..

(ii) H.N. as a potential suspect

[37] Counsel for Mr. Osmond also raised the issue of H.N. as a suspect in this case. The basis for this suggestion was that A.N., when interviewed by a social worker a short time after the alleged assault, stated that her injuries were caused by H.N. At trial, A.N. testified that she only made the allegations against H.N. because Ms. Brilliant and Mr. Osmond told her to. After reviewing all the evidence, I am satisfied beyond a reasonable doubt that H.N. did not assault A.N. and did not cause the injuries suffered by A.N. on August 10, 2018. I reach this conclusion for a several reasons. Firstly, when I look at the allegations that A.N. made against H.N., they do not seem to have been a possible source of the injuries in question. The description A.N. gave of the location within the residence where they occurred does not seem to match the physical lay out of the residence. Secondly, it is clear to me that the injuries had to have been caused sometime while A.N. was in Mr. Osmond’s care. A.N. did not have any injuries on August 8 when she arrived at Mr. Osmond’s residence. A.N. was picked up at approximately 2pm on August 10. They went directly to Toys’r’us and then returned to H.N.’s residence by 3:45. The photos from Toys’r’us and the receipt from Toys’r’us confirm this timing. The photos of A.N.’s injuries were taken at 3:58 p.m., just minutes after A.N. arrived at H.N.’s residence. This timeline does provide any opportunity for the injuries to have occurred while in H.N.’s care.

[38] Counsel for Mr. Osmond argued that the time stamp on the photos taken by H.N. is inaccurate. Respectfully, I disagree. First of all H.N. and S.N. both testified about the timing of the photographs, I accept their evidence on this point. Secondly, Det. Pantopoulos testified that she copied the photographs on H.N.’s phone using a special program that recorded the date and time the photograph was taken. I appreciate that the detective did not know how the program worked, but in my view that is not required. It is sufficient that she knew the purpose of the program, how it worked and administered it personally.

[39] I agree with counsel for Mr. Osmond that there were some areas of concern in H.N.’s testimony. For example, H.N.’s explanation for not going to the police right away was inconsistent with the rest of her evidence. H.N.’s explanation for calling her lawyer before calling the police was because she was concerned about what would happen if she went to the police as she had no legal rights with A.N. H.N. went on to testify that she was always “walking on egg shells” with Ms. Brilliant. This evidence is in direct contradiction to her earlier testimony. During the beginning of her evidence, H.N. testified that the relationship between Ms. Brilliant and herself was very good and had been good for three years. She further testified that Ms. Brilliant recognized the strong bond between herself and A.N. and wanted to support this bond. Given how good this relationship was, the explanation that she was always walking on eggshells makes no sense. I agree with counsel for Mr. Osmond that H.N.’s explanation for not calling the police right away is inconsistent with her other evidence. This, however, does not mean that H.N. assaulted A.N. or that other aspects of her evidence, should be disbelieved. To that end, I note that S.N., whose evidence I do accept, is consistent with H.N.’s evidence about when and how the injuries were first identified. S.N. is also consistent with H.N. on what A.N. told them about the cause of the injuries.

[40] The final point I want to address on the issue of whether H.N. caused the injuries to A.N. relates to the evidence of Ms. H.. Ms. H. is H.N.’s biological daughter. She is estranged from her mother due to significant complications in their relationship. Crown counsel urged me to find that Ms. H. had a motive to lie and argued that I should reject her evidence. I do not agree. I appreciate that Mr. H. is angry at her mother. Her anger does not make her unreliable. Crown counsel further argued that Ms. H. should be disbelieved because she inserted herself in this prosecution in order to retaliate against her mother. Respectfully, I disagree. Ms. H. had concerns about her mother and A.N. because of the information she had received from Ms. Brilliant and because of her own history with her mother. I accept that she called CAS and Det. Pantopoulos out of concern for A.N. I found Ms. H. to be an honest witness and I completely accept her evidence. Her evidence, however, is not evidence that H.N. committed any kind of violence towards A.N. The events that took place between Ms. H., H.N. and Ms. H.’s daughter occurred years earlier and does not lead me to reject H.N.’s testimony in this case.

(iii) Reliability of A.N.

[41] Having rejected H.N. as another suspect, I must still ask myself whether the crown has proven that Mr. Osmond assaulted A.N. I have already stated that it is my view that the Crown has proven that A.N. obtained these injuries while she was in Mr. Osmond’s care. The question I must still answer is whether the Crown has proven that Mr. Osmond was the source of these injuries.

[42] Defence counsel argued that I should be left in a reasonable doubt because A.N. made several inconsistent statements about how she came to be injured. First A.N. said it was Hailey that hurt her, then she said it was Mr. Osmond, then she said it was H.N. and then she said she forgot who hurt her and then at trial she testified that it was Mr. Osmond. Counsel argued that with all these variations, it is impossible to be satisfied beyond a reasonable doubt that Mr. Osmond is the perpetrator.

[43] Crown counsel argued that A.N.’s statements where she implicates Mr. Osmond are the only ones capable of belief. She urged me to accept A.N.’s evidence at trial and convict Mr. Osmond. Crown counsel argued that there is a consistent thread running through all of A.N.’s statements that point to Mr. Osmond. She further argued that A.N. only implicated H.N. when she was in the care of people linked to Mr. Osmond and therefore under their influence. Finally, counsel argued that even though A.N. initially pointed the finger at Hailey, it is absurd to conclude that a seven-year-old could have caused the injuries. A.N.’s explanation to H.N. that she originally said it was Hailey because she was scared of Mr. Osmond is a normal and natural response to being assaulted by an adult caregiver.

[44] In assessing A.N.’s evidence, I have to remind myself that A.N. was only five years old at the time of the allegations and six years old when she testified. I should not hold her to the same high standard as I would an adult witness. Instead judges are encouraged to recognize that some inconsistences are to be expected and should not be used as a basis to reject a child witness’s evidence. I also note that A.N. presented as a wonderful girl who I believe truly attempted to be honest with this court Having said that, I agree with counsel for Mr. Osmond that the numerous versions of events do raise real concerns about the reliability of A.N.’s evidence.

[45] As noted above A.N. was interviewed many times about her injuries and gave a variety of different explanations for the source of the injuries. Crown counsel argued that the versions given by A.N. while in the care of Ms. Brilliant’s mother cannot be believed and should not affect my view of A.N.’s evidence because the evidence clearly establishes that A.N. was being controlled by Ms. Brilliant and Mr. Osmond at the time. I partially agree with this argument. The first time A.N. made any suggestion that the injuries happened while in the care of H.N. or S.N. was after she moved in with Ms. Brilliant’s mother. A.N. testified at trial that she was told to lie to Cassandra and I accept her evidence that Ms. Brilliant told her to lie. Her statement to Cassandra about H.N. and S.N. makes so little sense that it could not reasonably be true. Where I disagree with the Crown is whether Mr. Osmond also put pressure on A.N. to lie. A.N. gave conflicting testimony about whether Ms. Brilliant told her to lie or whether it was Ms. Brilliant and Mr. Osmond that told her to lie. At times A.N. seemed to state that she had no contact with Mr. Osmond since the original assault but then at other times A.N. testified that Mr. Osmond told her to lie. Given this inconsistency I am not confident that Mr. Osmond had any contact with A.N. after his arrest or that he personally exerted pressure on A.N. to change her version of events.

[46] In my view, given the obvious pressure being placed on A.N. when she spoke to Cassandra, the inconsistencies arising from this statement do not cause me to doubt the reliability of A.N.’s evidence. Similarly, given the proximity in time between A.N.’s statement to Cassandra and Ms. Moddejonge, the lack of clarity in this statement also does not cause me to doubt the reliability of A.N.’s evidence.

[47] There are other inconsistencies, however, that cannot be as easily attributed to outside pressure and cause me to have a reasonable doubt in this case. Firstly, when A.N. first spoke about her injuries she stated it was Hailey that caused them. She repeated this the following day. It was only when told that Hailey will get in trouble with the police that A.N. stated that Mr. Osmond caused the injuries. I appreciate that one likely explanation for this is the same one that A.N. gave to H.N., which was that she was scared of Mr. Osmond so she lied and said it was Hailey that hurt her. This is completely reasonable. While it is less likely that Hailey was the actual perpetrator and that A.N. pointed the finger at Mr. Osmond to protect the sister that she loves, I cannot find that it is not reasonably possible. No medical evidence was called identifying the amount of strength necessary to cause the injuries or that the bulk of the injuries could not be caused by choking and then being thrown off the bunk bed by a seven-year-old. These two different versions of events in my view does impact the reliability of A.N.’s evidence.

[48] In addition to the above inconsistency, the other inconsistencies that I think are relevant relate A.N.’s recitation of what took place. A.N.’s outline of how Mr. Osmond injured her changed between the different statements to persons in authority and within each statement. Moreover, her trial evidence also differed from her statement to the police. It is unclear to me if she was slapped, punched, choked, thrown or a combination of all the above. A.N. told H.N. and S.N. that Mr. Osmond grabbed her by the legs and throat and that he threw her. In her statement to Det. Pantopoulos, A.N. gave a few different versions of how Mr. Osmond hurt her. One included being thrown and later she stated that she was thrown by Mr. Osmond on a different day. At one point she stated she was slapped. Then she said she was punched. At trial, A.N. was more definitive about how she was hurt, she was now certain that Mr. Osmond threw her as well as choked her and hit her. The only real consistent piece is that it all began because of some sisterly fight with Hailey.

[49] Again I am mindful that it is dangerous to dissect a five-year old’s evidence. I am mindful that given her age some inconstancies are likely and it does not mean that the general gist of what took place cannot be accepted. In this case, however, there are so many different versions of events that I am left with a real doubt about how A.N. was injured and who caused the injuries. While I suspect it was Mr. Osmond and in my view, he is probably guilty, probable guilt is not enough to ground a conviction. When I consider all the evidence, I am left in a reasonable doubt that Mr. Osmond assaulted A.N. and I therefore find him not guilty.

Delivered January 13, 2021 M.B. Greene J.