ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1564/11
DATE: 20130412
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.J.N.
Respondent
KRISTA LESZCYNSKI, for the Crown
EDWARD GRESHAM, for the Respondent
HEARD: April 4 and 8, 2013
DESOTTI, J.
[1] The accused is charged with an eight count indictment alleging that he sexually assaulted the complainant J.H. on four different occasions and that he did for a sexual purpose touch the same J. H. with his hand on four separate occasions. The Crown acknowledges that they are only proceeding on the latter four counts with the sexual assault counts subsumed within those charges based on the Kienapple principle.
A. The Facts
[2] The accused, T.J.N. often had the three daughters of N.D. over to his mother’s residence in Corunna. He believed that he was the father of the youngest two girls although the mother of the three girls, when she took the witness stand, indicated that she did not know the father of her two youngest children.
[3] In any event neither party has sought either child support or access to these two youngest children since the charges were laid against the accused some two years ago.
[4] The mother of these three girls welcomed the assistance of the accused in babysitting her girls as she was busy in her studies at L[…] College in Sarnia. Often the children would spend the weekend at the accused’s residence. He resided there with his mother, brother and the brother’s daughter, his niece.
[5] The children would sleep in his room in the basement with the two youngest children sleeping on a mattress and the complainant, J. H. sleeping in the bed of the accused. This pattern of visitation and sleeping arrangements was particularly evident during the entire 2009 year. At times the accused would sleep upstairs on the couch but he does acknowledge that he as well slept in his bed with the complainant, J.H.
[6] Sometime in 2009 in either the spring or the fall, J.H. indicated that the accused touched her vagina on four separate occasions while she lay in his bed. The first occasion was just before her birthday in […]. He would roll her away from his person and then fondling her vagina with his hand by reaching across her body. She believed after some cross-examination that those four occasions occurred around the time of her birthday on […], 2009 and thus this would have been the spring of that year.
[7] On her birthday in 2010, J. H. disclosed this touching to her friend at recess and then disclosed this touching to her principal. Her mother was summoned to the school and she was informed as well. After returning home to celebrate her birthday, the accused arrived with his mother and a confrontation occurred. There has been no contact between any of the parties since this disclosure.
B. Analysis
[8] The evidence of J. H. indicated that up until the sexual assault incidents, she got along well with the accused. There is no evidence that there was any motive to manufacture the accusations against the accused.
[9] The complainant prepared a sketch of the bed and the mattress that her sisters slept on and her position in the bed. I should also add that there was a series of problems in the child friendly room such that we in the courtroom were experiencing significant ‘electronic feedback’. In the result, the child J. H. agreed to give her evidence in the courtroom and the accused heard her testimony behind a screen.
[10] The first incident was described by J.H. with significant detail. She remembers that they had spaghetti for supper and watched a movie before falling asleep after 10:30 PM. There was a television and computer in the bedroom where the girls slept.
[11] The complainant indicated that the accused rolled her away from him and then fondled her vagina from behind. Her back and shoulder would be facing him. She would be on the left side of the bed or looking at the bed she would be to the right side of the bed. On this first incident, she remembers wearing a long-sleeved shirt with a pink and green frog pyjama shorts.
[12] The waist band was elastic and he pulled down her pyjamas to above her knees and spread apart her legs and put his fingers over her vagina. He did not penetrate her vagina. This touching lasted for about five minutes. He then repeated this action after J. H. tried to roll away and pull her pyjamas back up.
[13] In this first incident, she remembers that the accused wore blue jeans, grey socks and a ‘hangman’ T-shirt. She also indicated that she pretended to sleep as she was afraid of being hurt. She stated that she didn’t know what was going on and she didn’t know what he would do if he found out.
[14] There was no comments made that evening or on any of the other three occasions and the next morning she was afraid to go near him. The next incident occurred about two weeks later after her sisters fell asleep after playing a game (jumping on this waterbed). The accused at the time was on his computer. She indicated that it was in the afternoon but it was dark outside.
[15] The accused is said to have done the same thing as before. He pulled her pyjamas down and fondled her vagina. She indicated that on this occasion she was wearing gym pants with hearts on them and a T-shirt. The next morning she indicated that she felt dirty as if she hadn’t showered. She also indicated that her sisters were having breakfast with the accused and they were eating Nutella. She remembers this because she specifically does not like Nutella.
[16] In addition, she indicated that on this second occasion, she knows it was the accused and not R., the accused’s brother because no one but the accused enters this bedroom and in any event R. was not there that weekend as he was away on a trip.
[17] J.H. did not tell her mom because she believed that her mom would not believe her as her mom “thinks” that “she lied a lot”.
[18] The third time she wanted her sisters to sleep on the bed with her but the accused said no and indicated to her that he was afraid that one of the girls would fall off the bed. J.H. also asked her mom to take her home but her mom indicated that she couldn’t because she had a test the next morning.
[19] Her mother had dropped off Tim Horton’s at the residence that evening. J.H. then asked if she could sleep over at her aunt Kim’s place but again her mom said no.
[20] On this occasion, J.H. moved to the farthest point on the bed and faced the front so he could not roll her over. However, she must have fallen asleep and changed her position because again the accused rolled her over and fondled her vagina. Later she stated he left the bed and was back on his computer.
[21] On the fourth occasion, J.H. pretended she was asleep and he did the exact same thing and again he fondled her vagina. She indicated that she was wearing shorts. This last incident contained less detail.
[22] In cross-examination, J.H. indicated that she believed all these incidents occurred around her 9th birthday in […], 2009. She indicated that she did not visit with the accused as much thereafter and did not visit with the accused after Christmas of 2009.
[23] Her first disclosure took place on her birthday, […], 2010. She told her friend Carly at recess who told her to tell the principal, which she did later that day.
[24] Both in examination-in-chief and throughout cross-examination, J.H. was detailed in describing what the accused did to her and was most consistent in her recollection of these disturbing events in her young life. Even the problems with the ’unfriendly suite’ did not cause her to be less than forthright about what occurred to her. Frankly, J.H. was a most believable witness and I would add she was most responsive to any and all questions directed at her.
[25] The accused, T.J.N. took the stand and denied that he had ever fondled J.H. He did acknowledge that he at times slept in the same bed with J.H. and confirmed that he had a television and computer in his bedroom and that the younger girls slept on a mattress. He also indicated that the sketch prepared by J.H. was an accurate sketch of the room and where she slept and that at times the children watched movies in his bedroom.
[26] The accused also confirmed that he had a hangman T-shirt at the material time. What was most troubling was his manner of responding to appropriate questions posed by the assistant Crown Attorney in cross-examination. For example:
Q. Do you recall pyjamas that she had with hearts on them?
A. I do believe all of the children had Valentines pyjamas.
Q. Okay, but I’m just asking you about J., okay, sir? Do you recall she had
pyjamas like that?
A. I recall all of the children had Valentines pyjamas.
Q. Okay.
A. That should answer your question.
[27] This type of response continued in his answers to other questions. For example:
Q. And sir, would you agree that when you would sleep in the bed with J.. it was your practice to wear your blue jeans to bed, is that correct?
A. Yes, it’s general practice that I would at least wear sleep pants.
Q. Sleep pants or blue jeans?
A. Okay.
Q. I’m asking you, sir, if that’s correct? Whether or not you wore blue jeans to bed when you slept with J. on occasion in 2009?
A. On occasion, I wore blue jeans to bed.
[28] This type of response continued in other answers. Again, when the accused was queried about where he tickled J., he responded by not referring to the child J. but he gave a more generic or general response. For example:
Q. And you were aware of that because it was not uncommon for you to tickle her in the inner thigh, is that right?
A. It wasn’t uncommon for me to tickle my children. No, it was not.
Q. Okay, but we are talking about J., right?
A. Okay, sorry. I’m not allowed to refer to as, to her as my child anymore.
Q. Well, because you …
A. Continue your case, Ma’am.
Q. Sir, you know her, her father is D. H.?
A. Yes, and he’s sitting right before the court.
Q. And so just to confirm, sir, the question was you have tickled J.H. in her inner thigh and that is how you know her to be especially ticklish there, is that right?
A. Yes.
Q. And I’m going to suggest to you sir, that this type that you would engage in this type of tickling with her in your bedroom, is that right?
A. Rarely did I tickle the children before I put them to sleep.
Q. But the question was on occasion you have done that right? Tickled J. in your bed …
A. Can I guarantee the non-occurrence? No, I cannot guarantee the non-occurrence.
Q. Sir, I’m going to suggest to you that you in fact there were occasions when J. was in your bed, at your home, and you were in bed with her, when you touched her in, inner, inner thighs, in between her legs, is that correct?
A. Have you not just discussed this?
Q. Sir, can you answer the question?
A. Could the occurrence of have happened? Yes. I could have tickled the child.
[29] The Crown submits that the accused was at times most unresponsive to simple and directed questions. I would certainly agree. I would also conclude that the accused was most aware that he was in court not because of his conduct with the two youngest children but because of his alleged conduct with J.H.
[30] The manner of his evasiveness to these directed and obvious questions was purposeful and reflected an attempt by the accused to minimize both his opportunity to be present in the same bed with the complainant and his inappropriate tickling of this child between her inner thighs. The reason for this evasiveness is submitted by the Crown to be because it was a way for the accused to deflect questions that corroborated the allegations made against him by J.H.
[31] I agree with those submissions. The accused knows why he has been charged. The allegations arose from the allegations of the child J.H. and from no one else.
[32] To say that the child J.H. gave a descriptive and credible account of what occurred to her is an understatement as was her consistency when her testimony was under the scrutiny of cross-examination. Nevertheless, the three pronged approach to the testimony of the accused, as reflected in the decision of R. v. W. (D.), mandates, that if I reject the evidence of the accused, T.J.N., that I still must be satisfied beyond a reasonable doubt that the Crown’s evidence upon which it relies, satisfies me beyond a reasonable doubt.
[33] I am so satisfied. In rejecting the evidence of the accused for reasons already expressed, I conclude that most of what the J.H. described has to some extent been corroborated by the testimony of the accused.
[34] Yes he touched her inner thighs in bed but it was tickling. Yes he wore a hangman shirt and wore blue jeans to bed. Yes, he often slept in the same bed and bedroom as J.H. The only thing he has not confirmed is the actual touching of J.H.’s vagina. On this point I accept the evidence of the complainant, J.H.
[35] In the result, there will be a finding of guilt on counts #5, #6, #7, and #8.
Original Signed by “Justice John A. Desotti”
The Honourable Mr. Justice J.A. Desotti
Released: April 12, 2013
COURT FILE NO.: 1564/11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
T.J.N.
REASONS FOR JUDGMENT
DESOTTI, J.
Released: APRIL 12, 2013