CITATION: R. v. E.N., 2015 ONSC 2853

COURT FILE NO.: 7469/14

DATE: 20150501

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

E.N.

K. Pritchard, for the Crown

K. Walker, for the Accused

HEARD: April 13, 14, 15, 16, 2015

PUBLICATION RESTRICTION NOTICE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION SO THAT IT CAN BE PUBLISHED.

A. D. kurkE j.

[1] E.N. is charged on an Indictment with five offences: 1) Sexual Assault, 2) Sexual Interference, 3) Invitation to Sexual Touching, 4) Making Sexually Explicit Material Available to a Person under the Age of 16 to Facilitate the Commission of the first three offences, and 5) Exposing his Genitals to a Person under the Age of 16, all between January 1, 2013 and September 30, 2013. The victim of these allegations is said to have been E.N.’s wife’s granddaughter, J.S., who would have been 10 or 11 years old during the period of the charges. The offences are alleged to have taken place at E.N.’s residence, a small two-bedroom apartment on Laura Street in Sault Ste. Marie.

[2] J.S. testified that the accused used to invite her often into his room when the accused’s wife, N.N., was babysitting J.S. The accused would have J.S. sit on his lap, and he showed her “inappropriate” pictures and movies on his laptop computer. He described to her what was going on in the pictures and videos, using graphic language, and rubbed her chest and between her legs. Sometimes he also showed J.S. his penis, and on one occasion invited her to touch it, but she refused. He told her not to tell anyone what he was doing because he would get in trouble if she did.

[3] The accused denied that anything happened as described by J.S. He and N.N. testified that the accused would never have had the opportunity to do such things, as J.S. was babysat very infrequently during the period alleged, and was very closely watched by N.N. when N.N. did babysit. The accused described only one occasion on which J.S. could have seen anything inappropriate: J.S. once snuck into the accused’s room while he was looking at pornography on his laptop, and she could have seen something inappropriate at that time, before she was caught and taken out by N.N.

[4] This is a not unusual situation in which Crown evidence and defence evidence contrast irreconcilably. Therefore, the assessment of the credibility and reliability of witness evidence is central to the determination of the issues on this trial.

[5] For the following reasons, having considered the instructions of the Supreme Court of Canada in R. v. W.(D.), I am satisfied beyond a reasonable doubt on the whole of the evidence in this case, that E.N. is guilty of all five Counts on the Indictment.

The legal framework

[6] The accused started this trial presumed to be innocent of the charges he was facing. The Crown had the burden of displacing that presumption with proof beyond a reasonable doubt that he committed the offences with which he is charged: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. As Laskin, J. (as he then was) held in R. v. Appleby, 1971 4 (SCC), [1972] S.C.R. 303, at para. 33: “[T]he presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit … of any reasonable doubt”.

[7] In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. recently reviewed the principles that are relevant to assessing the evidence of witnesses in cases such as this one. I excerpt the following for consideration in the circumstances of this case (from paras. 9-14):

9 …[E]very witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122…[at para. 26]

10 …[N]o inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act…eschews any reference to “adult” or “child”, preferring the terms “14 years or older” and “under 14 years of age”. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence: W.(R.), at p. 134[.]

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)… (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356[;] R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31. [some citations eliminated]

[8] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[9] It is important to recognize that flaws and contradictions in a child’s evidence need not carry the same weight as they would in the evidence of an adult. “While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it”: R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48; see also R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214, at para. 42. That is not to say that a child’s evidence should not be scrutinized carefully, only that it should be examined through a lens engineered to view “criteria appropriate to his or her mental development, understanding and ability to communicate”.

[10] It is also necessary to bear in mind that people react to events differently. One common example of this truism, relevant to this case, relates to when and how people who are alleged to have been victims of abuse report that abuse. There are many completely understandable reasons why people delay disclosure of abuse. The timing of disclosure “is simply one circumstance to consider in the factual mosaic of a particular case”, and delayed disclosure need not cause an adverse inference against a complainant’s credibility: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

[11] In assessing the evidence in this case I have instructed myself in accordance with the instructions of the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, in which the Court offered the following guidance on how to approach “credibility contests” (at paras. 27 and 28):

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice…, approved in R. v. Morin…. [references omitted]

28 … A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[12] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out above ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), 1994 76 (SCC), [1994] S.C.J. No. 91, at para 24. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:

In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

Importantly, cases such as this are not about a choice between the accused’s and the complainant’s evidence. The central issue is whether, based on the whole of the evidence, I am satisfied beyond a reasonable doubt about E.N.’s guilt in relation to any of the offences with which he is charged: R. v C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para 8.

The framework of events, from H.R.’s perspective

[13] H.R. is J.S.’s mother. She moved to Sault Ste. Marie from Toronto in July 2012, with J.S., who was born […], 2002. H.R. described her daughter as bright, spunky, and sweet, although J.S. was diagnosed with both ADHD and Oppositional Defiance Disorder (ODD) in 2013. H.R. moved to Sault Ste. Marie to be closer to her mother N.N., who was married to her stepfather E.N., and living with him in the Laura Street apartment. During the period involved in this Indictment, H.R. was residing close to her mother, within walking distance, in an apartment on Second Line West. H.R. and J.S. knew E.N. by the name “V.”; J.S. also called him “grandpa”.

[14] There does not seem to be much dispute about the layout of E.N. and N.N.’s apartment. The front door of the apartment leads into an entry area that becomes a hallway. Opposite the entrance door, at the far end of the hallway, is a washroom. E.N.’s bedroom was on the right side of the apartment to someone looking in from the front door, at the washroom end, and his wife’s bedroom was on the left side, also at the washroom end. To the left and right by the front door were the kitchen and living room, respectively. Midway down the hallway was an access door, leading to stairs down to the laundry room.

[15] In September 2012, H.R. worked to convince her mother to babysit J.S. At the time, H.R. was enrolled at Sault College, and her course load necessitated a babysitter for J.S. before and after J.S.’s own school day. H.R. testified that she persisted in getting her mother to agree to babysit J.S. Her mother and E.N. were reluctant to take on the task, at least partly because of E.N.’s past, of which H.R. was aware. H.R.’s intention was for her mother to babysit J.S., not for E.N. to do so.

[16] H.R. testified that N.N. eventually agreed to babysit, but only on everyone’s agreement to rules of the home: J.S. was not to chase the cats, she was not to disturb the neighbours with loud noise, and she was to stay out of E.N.’s room unless J.S. was in the company of H.R. or N.N. E.N. and N.N., H.R., and J.S. all agreed to these rules.

[17] H.R. indicated that from about September 2012, she would drop J.S. off at her mother’s in the morning on weekdays, and go to catch her bus to school. Her mother fed J.S., and then took her to the school bus. N.N. would pick J.S. up from the bus after school, and feed her. H.R. then collected J.S. from E.N. and N.N.’s home between 4:30 and 4:45 p.m.

[18] N.N. babysat for a few months, and then a neighbour of H.R. named “Pat” babysat J.S. for a short time, but this arrangement ended when Pat did not wish to continue babysitting.

[19] According to H.R., after Pat stopped babysitting, her mother continued babysitting until September 2013. According to E.N. and N.N., another person, known only as “Dylan’s mother”, took over babysitting at some point after Pat’s involvement, although J.S. continued to be watched by N.N. at least on Wednesdays and school P.A. days. H.R. was never asked about Dylan’s mother, who she was, or her part in the babysitting schedule.

[20] In addition, in May 2013, N.N. watched J.S. on at least one weekend during the day, as H.R. was attending driving school.

[21] H.R. and J.S. slept at N.N.’s home almost every weekend in 2012. H.R. testified that J.S. started sleeping over there by herself in January 2013. When it was put to H.R. that she did not mention these solo sleepovers in her police statement, H.R. stated that she did not recall whether or not she had mentioned them to police, but was pretty sure that she had. H.R. ultimately agreed that she had never mentioned the sleepovers to the Crown, or to the police, or in her video statement. But she claimed to remember dropping J.S. off for sleepovers “a few times”.

[22] I am satisfied, on the evidence at this trial, that J.S. was babysat at the N. residence on many occasions between January and September 2013, while H.R. was involved in her own educational pursuits, or on other occasions when assistance was required. H.R.’s failure to mention anything prior to trial about solo sleepovers by J.S. at E.N. and N.N.’s home during the period in question causes me to question whether J.S. ever did actually spend the night at E.N. and N.N.’s home. There were several occasions when she began a solo sleepover at the home of E.N. and N.N., but I cannot be satisfied that she slept there an entire night alone with her grandparents.

[23] Things changed in September 2013. Around the middle of that month, J.S. was at home with her mother, and had been watching a movie on the computer. J.S. pulled her mother into her room in tears; H.R. had never seen her before in such a state. J.S. disclosed that she had seen “inappropriate pictures” on her grandpa’s computer, and that grandpa had grabbed her by the arm and told her not to tell anyone about it.

[24] H.R. bundled J.S. into the car they were using and drove to her mother’s home, where she confronted her mother and E.N. with J.S.’s disclosure. E.N. and N.N. claimed to have no idea what H.R. was talking about. The discussion stalled, and J.S., who was upset, wanted to leave. H.R. left with J.S. She denied asking J.S. at this meeting if E.N. had ever touched her, and denied that E.N. apologized that night.

[25] H.R. admitted telling E.N. and N.N. that J.S. had once inadvertently seen an inappropriate picture on H.R.’s computer on a Facebook feed, but denied that it was at this meeting.

[26] The day following H.R.’s and J.S.’s attendance at the accused’s home, H.R. re-attended without J.S. as the situation was still bothering her. She sat at the kitchen table talking with her mother and E.N. After about an hour, E.N. suggested that J.S. might have seen inappropriate pictures on his computer, by sneaking into his room without him realizing it, when he was looking at pornography. H.R. told him off for looking at such things while her daughter was in the residence. H.R. was certain that this was only said this day, while J.S. was not with her. And indeed, H.R.’s version of events does what this other version does not: it accounts for H.R.’s return visit to the E.N and N.N. home. This other version will be discussed below.

[27] H.R. said that she had not pushed J.S. for more details, as J.S. became uncommunicative when pressed. H.R. decided to wait for J.S. to tell her more when she was ready. In cross-examination, H.R. agreed that she may have asked J.S. after the meeting if E.N. had touched her, but did not recall repeatedly questioning her about it. H.R. spoke to J.S., and told her that she could talk with her about anything, and that she would always “have her back”.

[28] Based on J.S.’s evidence that there was such questioning, I am satisfied that H.R. asked her daughter at the first family meeting if E.N. had touched her, and did repeatedly question her daughter about this afterwards. H.R. was aware of E.N.’s troubled past, which was hinted at to me at points in this trial. The guilt H.R. still feels for having left her daughter to be cared for at E.N.’s home is evident. Indeed, at one point H.R. told her daughter that she wanted E.N. to “rot in Hell”, a comment of which J.S. disapproved. I believe that H.R. was aware, as she testified, that her repeated questioning of her daughter in September 2013 would look inappropriate, and accordingly she denied it. However, because of J.S.’s evidence, I am aware that such questioning took place, but I am also satisfied that it did not, in fact, generate a false history from H.R., or a false complaint from J.S.

[29] Some weeks after the two September 2013 meetings with E.N. and N.N., in an evening in October, J.S. approached H.R., upset, and admitted to her that grandpa showed her the inappropriate pictures. She alleged E.N.’s active involvement. H.R. again drove to her mother’s home to speak with her mother and E.N. She was met with the same denial: “I don’t know what she’s talking about; nothing happened”. H.R. was angry and upset, and told them that she would be going to the police, and told her mother that their relationship was over.

[30] But H.R. did not immediately go to the police, as she felt guilty for not having protected her daughter. She brought J.S. with her that evening to pick up her boyfriend after he finished work. While they were in the car together, J.S. started crying and told her mother that more had happened with her grandpa – that he had been touching her chest. H.R. called her mother on her cellphone, swore and yelled at her, and told her that she was going to the police.

[31] H.R. drove to the police station that evening, and gave an oral statement, and made an appointment for J.S. to give a video statement the following Monday, October 21, 2013.

[32] H.R. was present with her daughter during her first video statement to Detective Constable Cyr of the Sault Ste. Marie Police Service on October 21, 2013, but she left the telling of the story to J.S. J.S. also provided a video statement to Children’s Aid Society worker Kerri Mellis and Detective Cyr on November 6, 2013, after disclosing further details to her mother. H.R. was not present during the November 6 statement.

[33] In cross-examination, H.R. was questioned about what counsel termed J.S.’s “mental illness”. It was suggested to H.R. that J.S. would see things that were not there, and hear things when there was no sound. H.R. explained that J.S. had mistaken a shadow of a tree for a person, and that she had thought she heard someone calling to her when she had not. H.R. had in the past described her daughter as a “drama queen”, but she explained that she only meant that J.S. did things like exaggerating the pain of minor injuries.

[34] There are clearly some issues in H.R.’s rendition of events. Her feelings of guilt and her desire to see E.N. punished overcame her better judgement, and she displayed her concern and anger to J.S. Her evidence reflects both an after-the-fact recognition that she should not have shared her views about these things with J.S., and an attempt to look as though she had behaved as she ought to have. Nonetheless, I accept overall H.R.’s account of the background to the offences, and the sequence of events following J.S.’s first disclosure in September 2013.

The allegations: J.S.’s perspective

[35] The narrative that alleges criminal misconduct on the part of E.N. comes mainly from J.S., who testified at trial on her promise to tell the truth. In addition, pursuant to s. 715.1 of the Criminal Code, the two videotaped statements given by J.S. were adopted by her as part of her evidence: one from October 21, 2013, the other from November 6, 2013. After they were admitted as part of J.S.’s evidence, on consent they were both made Exhibits on the trial. I have cautioned myself not to give these statements any special prominence in my decision-making simply because they have been made Exhibits. I treat them as I do the oral evidence of all witnesses: R. v. R.W.N., [2004] O.J. No. 282 (C.A.), at paras. 14-18; application for leave dis’d [2004] S.C.C.A. No. 297.

[36] During the relevant periods, J.S. recalled going every day to the E.N. and N.N. home to be babysat by her grandma. She would walk there with her mother. She recalled the four of them sitting in the kitchen before school. She would eat breakfast, which was often oatmeal. After school, they would sit in the kitchen and talk. If her mother was not at school, she would also be there. J.S. stayed at the E.N. and N.N. home until H.R. got off school, and came to collect her. She and her mother sometimes slept over together at the E.N. and N.N. home.

[37] J.S. knew the babysitting rules at N.N.’s home. She knew that she was not allowed in E.N.’s room, but as she explained: E.N. would call her in. He knew the babysitting rule relating to J.S. going into his room, but he did not follow it. N.N. would not always be with J.S. She followed J.S. around most of the time, but not all the time.

[38] J.S. was able to describe the layout of E.N.’s room. He had an Acer laptop on his desk, which was against the wall opposite the bedroom door. In fact, there were two computers in the apartment. The one in the living room was her grandma’s, and J.S. sometimes played on that computer. Her grandpa looked at inappropriate pictures only on his Acer laptop on the desk in his bedroom, because he did not want N.N. to find out. There was a mirror on top of an amp on the desk where his laptop was. Next to the desk was E.N.’s guitar, and then the closet.

[39] E.N. would call J.S. into his room to see the pictures, when he saw her in the mirror walking by in the hallway to go to her grandmother’s room or to the bathroom. This might happen any time of the day. E.N. would gesture with his left hand to J.S. to come into his room, and if she did not he would turn around. She complied because she did not want to make him mad and yell at her, and she thought he was going to give her a hug. He made her sit on his lap, on his chair facing the laptop. At least once he tried to kiss her, but she leaned away from him to avoid the kiss.

[40] J.S. testified that E.N. showed her inappropriate pictures and videos on his laptop, while her grandmother was in the kitchen. In answer to a leading question by Detective Cyr in the October 21 statement, J.S. agreed that this had happened “lots of times”. The pictures were of people, both adults and children, with no clothes on, having sex. E.N. would describe what they were doing, and used the “F” word to do so. The movies were about naked people “doing it” with other naked people. Some of the people in the pictures were kids. Her grandpa would mute the videos, but describe what was going on. He showed her a movie every day. One of them had a man in the driver’s seat of a car taking “it” out while a kid was in the passenger seat. She found the movie “disgusting”.

[41] When J.S. tried to leave, E.N. grabbed her by the wrist and pulled her back in. She also told him to stop. E.N. told her not to tell anybody, because “he could go to jail”, or “he could get in trouble with the law”. H.R. stated that she told J.S. that E.N. had been to jail only after J.S. had told her that E.N. said he could get in trouble. On this point, which I consider of very minor significance, I am satisfied that the accused originally told J.S. that “he could get in trouble with the law” if she told anyone. As time has gone on, and questions have been asked and answered in many contexts, J.S. no longer can distinguish between the two versions of the accused’s utterance to her; this is completely understandable, especially in the circumstances of a child witness.

[42] The pictures and movies were in files on a downbar at the bottom of E.N.’s laptop. They were on a stand on the computer screen. The inappropriate pictures were in a computer file called “sluts”. The evidence of such a file structure was never contradicted in any way by E.N. or N.N. E.N. also showed J.S. such material from the internet.

[43] From J.S.’s perspective, if E.N. heard N.N. coming down the hallway towards his room when he was showing J.S. inappropriate pictures, he would hit “x”, and get rid of the image from the screen.

[44] J.S. testified that her grandpa got so into what he was doing that he would just start touching her. He would tell J.S. what was going on in the images, and then he would touch her on her chest and between her legs. He would rub her chest sometimes underneath her clothing. He would touch her with his finger between her legs over her pants, but sometimes under her pants, on a part she called her “fish”. This would go on while he showed her the pictures. The first time he touched her between her legs appears to have been once when her grandmother was not keeping track of her. As J.S. remembers it, it was at a sleepover; I am prepared to find that it was in the evening, but as I consider below, I cannot conclude that there were any completed sleepovers. J.S. did not want the touching to happen, so she closed her legs and indicated to E.N. to stop. She pushed his hand away.

[45] In her October 21 statement, J.S. told Detective Cyr that E.N. touched her sometimes beneath her pants but over her underwear. In her statement of November 6, J.S. asserted that the touching was sometimes beneath pants and underwear, and that the accused twice put his finger inside her. In her testimony at trial, J.S. testified in-chief that E.N. twice put his finger in her. However, in cross-examination at trial, she retreated to touches under the pants, but over her underwear. In such a state of the evidence, I am unable to find that E.N. ever digitally penetrated J.S.’s vagina.

[46] J.S. could not say how many times her grandpa rubbed her chest. He went down her shirt about ten times. He touched her “fish” virtually every time she went into his room.

[47] Sometimes, J.S., her grandma, and E.N. would watch normal movies on E.N.’s laptop. Once, she and her grandparents were watching “Scary Movie 5” on the laptop in her grandpa’s room. When her grandma left the room to go wash out popcorn bowls, her grandpa popped up inappropriate pictures from his files and showed them to J.S. until her grandma returned.

[48] In her October 21 statement, J.S. explained that things initially started after a few months of babysitting. J.S. told the officer that incidents went on from January until September, at which time she told her mother that her grandpa was showing her inappropriate pictures, because she could “not handle it anymore”. This timeline accords with the fact that N.N. originally began babysitting J.S. around September 2012.

[49] During incidents, J.S.’s grandpa would show her his “thingamajiggy”, which she also called his “doodle”, her terms for his penis. In his room, he would say that he did not like his pants. While J.S. helped grandma make dinner in the kitchen, her grandpa would put on shorts, and call her back in. He would pull his doodle out from his pant leg, and show it to her. This he did “lots of times”. He once told her that she could play with his doodle whenever she wanted, but she told him that she was never going to do that, and to just stop. J.S. testified that this invitation happened only the one time.

[50] Incidents happened both during the day and in the evening. J.S. testified that she slept over more than once, in her grandmother’s room. I am not prepared to find that there were any completed solo sleepovers by J.S. in 2013. Given H.R.’s late recollection of “several” sleepovers, and the fact that J.S. offers no particular detail about any others, I cannot be satisfied that any other completed sleepovers took place at which J.S. was present without her mother. Again, the fact of sleepovers is not central to this case. The accused had ample opportunity for misconduct during the days on which N.N. babysat J.S., and during the “almost sleepovers” that he described in his own evidence, which I consider below.

[51] J.S. agreed that during the course of a “slapping game” with E.N., she had struck him. E.N. told J.S.’s mother about J.S. hitting him, and J.S. was sent to her room for a time out. J.S. testified that after that, she had told her mother that she only wanted N.N. to babysit her, and not E.N.

[52] J.S. denied having any “mental illness”. She acknowledged that she had ADHD, but said that she did not have ODD. She denied ever seeing things that weren’t there, or “hearing things”. Concerning “hearing things”, J.S. described an occasion when she had thought that she heard her mom because J.S. was listening to music that was very loud. She had agreed with counsel’s question at the Preliminary Inquiry that she was “bi-polar”, but she did not know what “bi-polar” meant.

Problems with J.S.’s account?

[53] Counsel for E.N. has urged on me that I should not accept J.S.’s evidence about E.N.’s misconduct towards her. He points out the following issues:

a) In cross-examination, J.S. was adamant that her grandmother was not always with her when she was at E.N. and N.N.’s home, and that she was sometimes left alone with her grandfather. She told counsel that her grandmother would follow her around most of the time, but not all of the time. This evidence contradicted her answers at the Preliminary Inquiry, in which J.S. seemed to have agreed that she was never “let [sic] alone with her grandfather” and that her grandmother “was always there around you.”

When she was confronted by counsel about these apparent inconsistencies, J.S. answered that she agreed with those questions at the Preliminary Inquiry because counsel had called her a liar. In re-examination, she explained that she had not wanted to fight with counsel. While there is no indication in the transcript of the Preliminary Inquiry (June 24, 2014, p. 30), that counsel used the word “liar”, the following questions and answers appear between lines 8 and 28:

Q: …And when you were at your grandmother and grandfather’s home, N.N. and E.N.’s home, you could see that your grandmother was trying to keep up with you and try to be with you all the time? Yes?

A. Well, it didn’t seem like it.

Q. I didn’t understand why you were saying she didn’t care. I didn’t understand that.

A. Well, it didn’t seem like it.

Q. She didn’t care, she was always running around after you?

A. Well, it didn’t seem like it.

Q. She was always running around after you, yes?

A. Yes.

Q. Yeah. If you got anywhere far from her, she was out trying to get right by you, right?

A. No.

Q. You were never alone with your grandfather. You were never let [sic] alone with your grandfather. Yes?

A. Yeah.

Q. She was always there around you.

A. Yeah.

Q. Right.

The transcript displays a battle of wills between experienced counsel and a 12-year-old child. Counsel repeats his questions insistently when J.S. refuses to agree. It is not at all surprising that J.S. interpreted the repetitions as accusations of lying, nor that she quickly learned to agree in order to minimize confrontation. I am not troubled by these inconsistencies, in the context of J.S.’s age, experience, and the explanation that she gave.

b) Counsel also suggested that J.S.’s evidence was incapable of belief because she was diagnosed with ADHD and ODD, and that she used to “see things” and “hear things”. Further, she may have been on some kind of medication during the relevant time period. But there is no evidence before this court that ADHD or ODD, or the medication that J.S. was taking, render a person’s evidence unreliable. The evidence of J.S.’s seeing things or hearing things is trivial and commonplace. Such things do not render J.S. abnormal, or call into question the reliability of her evidence.

In the defence case, it was claimed that J.S. once thought that she could not hear her grandmother’s heart beating, bringing an abrupt end to a potential solo sleepover at E.N. and N.N.’s home. Whether or not it took place, I do not see it as evidence of an auditory hallucination or a mental illness that could render J.S.’s evidence on this trial unreliable.

c) H.R. clearly taught J.S. to report to her any inappropriate touchings. And there is evidence that J.S. did just that when a friend of hers slapped her rear end. Counsel has submitted that such reportage in that circumstance must detract from J.S.’s claims about E.N., as she did not immediately report what he had been doing, either to her mother or to her grandmother, and she initially denied it when asked directly about it by her mother. But J.S. explained the reasons for her late report of these things in some detail, and there is, on the record, some confirmation of her state of mind on this point.

Concerning her disclosures to her mother, J.S. explained that she did not tell her mother what was going on right away, or acknowledge that the accused had been touching her at the first family meeting in September 2013 in answer to her mother’s questioning, because E.N. had told her that he would get in trouble, and she did not want that to happen. She also did not want to put stress on her mother because H.R. was in school. She did not tell her grandmother because she was afraid that her grandmother would be mad at her, because her grandmother loved E.N., and thought that he would do nothing wrong.

In her October 21, 2013 statement, J.S. described to Detective Cyr that while she and her mother were in the car waiting to pick her mother’s boyfriend up from work on October 18, she had told her mother some details of what her grandpa had done to her, and how upset her mother had become. At another point, when the officer was out of the room, H.R. and J.S. spoke together. J.S. told her mother that she had not wanted to tell her what had been happening, because she did not want to put any more stress on her. She did not want her mother to drop out of school. This unscripted evidence serves to confirm J.S.’s claim that she initially did not want to upset her mother.

In the same statement, J.S. wanted to know if the police were going to arrest her grandpa, because she loved him, but she was upset by what he had done. Her candid statement to the officer serves to confirm her claim that she had not wanted to get her grandpa in trouble by telling on him.

I am satisfied that J.S.’s late disclosure was not an indication that J.S. fabricated her allegation. Rather, the delay came about as a result of E.N.’s own request to her that she not tell anyone, and her own innate concern for her mother and for E.N. In this context, J.S.’s late and gradual disclosures do not tell against her credibility: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

d) It seems to be a point of argument on behalf of E.N. that his violent scolding of J.S. after she had struck him during the slapping game, and her punishment afterwards, generated the allegations from her about E.N., as a way to get even. I have considered the argument, but I cannot accept it. I reject the suggestion that being yelled at by E.N., or being sent to her room for this conduct, would have brought about false allegations as retribution from J.S. Rather, as J.S. explained, she told her mother because she simply could not “keep it in anymore”.

e) Likewise, it seems to be suggested that H.R.’s persistence in trying to get her daughter to tell her more may have assisted in generating false complaints from J.S. J.S. agreed that her mother had asked her at the first family meeting at N.N. and E.N.’s if E.N. had touched her, and that she had denied the touching. J.S. agreed that from that point forward, her mother kept asking her lots of times if E.N. had touched her. J.S. agreed that she knew her mother was going to keep asking her things until she “told her what she wanted to hear.” However, J.S. explained that far from making her feel desperate to stop her mother’s probing, her mother’s questions made her feel safe from harm. I am satisfied that H.R.’s repeated questioning of her daughter did not generate a false account from J.S.

f) It was suggested that J.S.’s evidence about being shown inappropriate videos by E.N. cannot be accepted, because J.S. testified that an inappropriate video was on for 15 minutes. It was argued that N.N.’s vigilance rendered that impossible. Further, E.N.’s simultaneous narrative, even about muted videos, would have been overheard by N.N. in the small apartment. J.S. explained, however, that generally the movies were on for only 3 to 5 minutes, and that her grandfather could hear N.N. coming, and would delete the video from the screen before she arrived. As to N.N.’s overhearing of E.N.’s descriptions, I have not been provided with evidence about how loudly E.N. was speaking about the images, or about the ambient noise level in the apartment; as J.S. was on E.N.’s lap, he would not need to speak loudly to be heard. I do not consider this a major issue. In any event, I find that over time, N.N. did not view it as unusual for J.S. and E.N. to speak in his room, as I explain below.

g) I have described above that I am unable to find that E.N. penetrated J.S.’s vagina with his finger, given the contradictory state of J.S.’s evidence concerning whether E.N. had ever touched the area between her legs under her underwear. While I am unable to find that penetration took place given those contradictions, I am nevertheless of the view that J.S.’s description of that rubbing as “uncomfortable” is describing near penetration by forceful rubbing through J.S.’s underwear.

I do not find that J.S.’s inconsistency on this point detracts in any significant way from her credibility or reliability. Rather, it needs to be assessed in the context of a child witness being asked to differentiate among degrees of inappropriate touching to which she never should have been exposed: touching between her legs over her clothing; under her pants, but over her underwear; and under her pants and underwear.

Corroboration for J.S.’s account

[54] Several significant aspects of the evidence on this trial corroborate J.S.’s account of what she claimed E.N. did to her.

a) It was admitted by counsel for E.N. that on October 31, 2013, Detective Constable Novitski attended at E.N.’s residence to execute a search warrant. Among other items seized was E.N.’s black Acer laptop, which was on the desk in a bedroom.

This laptop was examined by Detective Cst. Douglas Erkkila, who was qualified to provide opinion evidence in the area of forensic computer analysis with regards to the Windows Operating System. In analyzing a forensic image of the laptop, which I am satisfied represented an accurate exact copy of the data and data structures from E.N.’s hard drive, Detective Erkkila found artifacts of a file structure involving a “Nynavic” account, and a “Pictures” folder that once had contained a sub-folder titled “sluts”, and another with a sub-folder titled “slut”, all within the “Users” folder. His findings are summarized in Exhibit 4 on this trial. These sub-folders had been deleted at some point prior to the search. There was also evidence of a large quantity of pornography in the “unallocated space” of the hard drive, a name for data that can be overwritten after it has been deleted.

In his evidence, E.N. himself admitted to viewing pornography, and to having had “slut” and “sluts” sub-folders on his computer, and admitted that they had once contained pornography. He admitted to having created the “Nynavic” account that formed part of the pathway on his laptop to the “slut” and the “sluts” sub-folders. He also admitted to having deleted them.

I am satisfied that there is on the evidence no other means for J.S. to have been aware of this file structure except from being shown the contents of the “sluts” folder by E.N. while he was repeatedly showing her pornography. Indeed, in response to questioning by counsel for E.N., J.S. denied sneaking into E.N.’s room when he was not there, and turning on E.N.’s computer. In a careful and precise bit of her testimony, J.S. agreed that she could have snuck into E.N.’s room, but that she did not, and that she could not go on E.N.’s computer, because it had a password. There is no evidence that she was aware of the password on E.N.’s computer. The evidence was clear that there were no legitimate means for J.S. to have learned that file structure.

Even on E.N.’s version of events, that J.S. had sneaked into his room, E.N. testified that when J.S. was in the room, the pornographic picture was already on the screen, so the file structure would not have been visible to J.S.

This is important corroboration of a central feature of this case and J.S.’s account: the accused had pornographic pictures on his computer, and an electronic folder about whose existence and name J.S. should have had no knowledge. But she did, and E.N.’s version of events cannot account for that fact.

On this point, Detective Erkkila mentioned that he found no evidence of child pornography on E.N.’s laptop. Counsel for E.N. urges on me that I use this as an argument against the credibility of J.S.’s account, as she asserted that E.N. had also shown her inappropriate pictures and videos with children in them. Such an argument does not take into account that on the evidence of Detective Erkkila such images, especially those from internet sources, may have left minimal or no searchable artifacts on that hard drive. Moreover, artifacts may have been overwritten prior to the seizure of the laptop; there is a randomness inherent in overwriting deleted files or internet connections. It is not my place to speculate on the absence of evidence.

b) E.N. himself corroborated his use of a mirror on his amp, as also described by J.S. in her evidence. Her experience was that E.N. used the mirror to detect her passing by, and he would then call her into his room, where he would show her inappropriate pictures and molest her.

E.N.’s evidence was that he used the mirror, a shaving mirror, to detect N.N., so that he could quickly get rid of pornography from his screen and avoid being caught looking at it by her. Indeed, in her evidence J.S. observed E.N. to perform that operation as N.N. approached, although from her perspective he was aware of N.N. because he had heard her.

Suffice it to say that this mirror was a device used by E.N. in the course of watching pornography, and that J.S. somehow knew its purpose, and knew it to be connected to E.N.’s viewing of pornography. The mirror is a potent piece of corroborating evidence.

c) In J.S.’s account, the accused has J.S. sit on his lap when he showed her pornography. This is partially corroborated by both E.N. and N.N., who have J.S. sitting on E.N.’s lap even though E.N. had problems with back and hips, and even though they claimed to understand the need to keep J.S. away from contact with E.N. because of his history.

d) J.S. also described E.N. putting on shorts before showing her his “doodle” from the leg of the shorts. While of minor corroborative force, it is still noteworthy that E.N. agreed that he wore shorts sometimes.

[55] On the whole, J.S.’s evidence was compelling. In her video statements, J.S. often shows great spontaneity, and offers significant details. Her explanations for her conduct are credible and I have no hesitation in accepting the bulk of her evidence, with the exception of small aspects of it, as described above. Additionally, the corroborative evidence makes the Crown’s case formidable.

E.N.’s account

[56] E.N. specifically denied showing J.S. any pornographic pictures or videos. He denied touching her in her private sexual parts or fondling her. He never invited J.S. to touch him, and he never showed her pornography on his computer. On his account, he never showed her his penis either. He was never alone with J.S.; N.N. was always around J.S.

[57] I have many issues with E.N.’s account, and with his credibility as a witness.

a. Opportunity

[58] Repeatedly in his evidence, E.N. took pains to reduce his opportunities for contact with J.S.

[59] According to E.N., after Pat babysat in around October 2012, N.N. took it up again for only about a month. Then someone else took over, whose name E.N. did not know, although E.N. and N.N. would continue to help once or twice a week when they were needed. N.N. performed less babysitting in 2013 than she had in 2012. It was claimed that H.R. sometimes took care of this other person’s child, and that this other person would sometimes help with J.S. This significant aspect of E.N.’s evidence, which is not found in the evidence of H.R. or J.S., would appear to narrow E.N.’s window of opportunity to have had access to J.S.

[60] Concerning the babysitting, E.N.’s recollection differed in at least one respect from everyone else’s. He claimed that N.N. would often take J.S. to H.R.’s apartment after school, rather than have H.R. collect J.S. at the accused’s home, if H.R. was coming home early. This was nowhere mentioned by N.N., and it was not asked of H.R. or J.S. It appeared to me, in the context of the whole of the evidence, to be an example of E.N. attempting to narrow his opportunity to have tampered with J.S. by fabricating a situation that did not exist.

[61] E.N. explained in his evidence that J.S. no longer needed babysitting in the Fall of 2013, as she had moved to a different school, and could walk there. Neither J.S. nor H.R. was asked about J.S. moving to a different school, so that babysitting was no longer necessary. Again, I find that E.N. implausibly sought at every turn to reduce his opportunity to have had dealings with J.S. by adding new details.

b. The Relationship Changed

[62] September 11, 2013 was a watershed date, according to E.N. E.N. was playing a hand slapping game with J.S. when J.S. slapped him in the face. E.N. “lit into” J.S., explaining that he would have hit her had she been a guy. J.S. was shocked by his reaction. He noted that after that, their relationship changed. J.S. would no longer jump on his lap and give him hugs. There was supposed to have been a solo sleepover that night, but that was the evening that J.S. was afraid that her grandma was going to die, and became upset, so H.R. came and took her home. Eight days later, E.N. was faced with H.R.’s accusations of inappropriate pictures on his laptop.

[63] E.N. was asked in cross-examination what he meant about his relationship with J.S. changing after she slapped him, as he had no personal contact with her after September 11 anyway, according to his evidence. His explanation, that he meant that it changed for the rest of the day on September 11, is nonsensical. E.N. was generally more careful with his words in his evidence than would permit such a figure of speech to carry the meaning he claimed in cross-examination. I instead conclude that his intention in saying what he said about the change in his relationship with J.S. was to convince the Court that his yelling at J.S. and her subsequent punishment motivated her to concoct a complaint against him. I do not believe this to have been the case.

c. An innocent explanation for having seen pornography

[64] E.N. testified that he was aware of many dates of things because he kept a journal on his laptop, and noted down things of importance to him in it. E.N. discussed his journal in the context of denying that J.S. had any sleepovers at the E.N. and N.N. home without H.R. So he explained that J.S. was supposed to sleep over February 2, 2013, but that H.R. returned early from a date and spoiled the plan. On May 18, 2013, J.S. was to spend the night at E.N. and N.N.’s, but instead ending up spending the night at her friend’s home. August 20, 2013 was another potential sleepover date. September 11, 2013 was the date that J.S. had slapped E.N. in the face during the handslapping game, which I have discussed above. It appeared that E.N. took care to invoke his journal to attempt to garner the Court’s favourable opinion of his credibility concerning events in the timeline. In fact, the journal told against its creator.

[65] E.N.’s central claim was that the only time J.S. could have seen pornography on his laptop was once when he had been looking at pornography, and he heard J.S. giggle from inside his room. She must have ducked coming in, so he did not catch her image in the mirror. He told J.S. that she should not see the pornography, and then N.N. came and dragged J.S. from the room. For some reason, even though he acknowledged that this was an occasion of great significance, given his “history”, E.N. failed to make any note about this incident in the journal that he kept on his laptop. I add, at this point, that in her evidence, J.S. denied that such an incident had happened.

[66] The simple explanation for this lapse, given the enormous downside risk of such an incident in the particular context of E.N.’s circumstances, and the obvious importance of noting it down for protection afterwards, is that the event described by E.N. did not happen. E.N. was prepared to invent an incident of this nature, apparently to calm H.R.’s concerns, based on what H.R. had told him about J.S.’s initial complaint. What weight can be given his evidence on a trial at which J.S.’s complete allegations are fully aired?

d. The family meetings

[67] According to E.N., on September 19, 2013, H.R. came over with J.S. There was a meeting at the kitchen table, and H.R. told him that J.S. had seen inappropriate pictures. E.N. gave his explanation and apologized if that had upset J.S. H.R. then said that E.N. had grabbed J.S. and told her not to tell. E.N. denied this. H.R. then asked J.S. twice if E.N. had touched her inappropriately, and J.S. denied it. N.N. then asked if J.S. was sure, and J.S. again denied inappropriate touching.

[68] According to E.N., H.R. came back the next day alone, which would be September 20, and told E.N. and N.N. that she was going to be on the child abuse registry for failing to protect her child. E.N. asked H.R. why that would be, as he didn’t do anything.

[69] Following that meeting, H.R. came over to go “yard saling” with N.N. On September 21, E.N. and N.N. went to H.R.’s home to give J.S. a keyboard that she had wanted. E.N. described that the last time he saw J.S. was that day, when she was hitting her cat with the keyboard.

[70] Several points arise on this evidence.

[71] First, it fails to explain H.R.’s motivation in returning the second day. According to H.R.’s evidence, it was E.N.’s complete denials on the first day that had her returning to get a more satisfactory explanation. On E.N.’s evidence, H.R. ratcheted up her concerns to a fever pitch with, apparently, no further disclosure intervening. This is not plausible on an assessment of all of the evidence.

[72] Second, it makes no sense in the context of the timing of the disclosures made by J.S. On E.N.’s telling, H.R. came over and announced that she was afraid that she would be put on the child abuse registry for failing to protect her daughter, because J.S. had seen pornography on E.N.’s computer without his knowledge.

[73] Yet H.R. had no such concern when J.S. had once seen pornography by accident on H.R.’s own computer. Indeed, in cross-examination, E.N. went on to claim that it was after H.R. expressed her concerns about the child abuse registry that she herself minimized that concern by talking about J.S. accidentally having seen pornography on her computer. That scenario makes no sense.

[74] On the other hand, in H.R.’s evidence, she explained that it was only on the day that J.S. disclosed E.N.’s active participation in showing pornography, October 18, that H.R. became actively concerned again, and called N.N. to express her anger; when J.S. further disclosed sexual touching, H.R. went to the police. Those are believable reactions to that kind of disclosure, and I accept H.R.’s account of them.

[75] Third, it is worthy of observation that here, as elsewhere in his evidence, E.N. took opportunities gratuitously to paint J.S. in an unfavourable light. After describing how he brought an electronic keyboard to H.R.’s home as a gift for J.S., he unnecessarily added that he had seen J.S. striking a cat with the gift as he was leaving. Just so, when he described the card games he played with J.S. when she was being babysat at his home, he added, in answer to no question, that she cheated at poker. I find that these efforts by E.N. to attack J.S.’s character in his evidence have the effect only of detracting from his own credibility.

[76] On this evidence, I can only conclude that the events at the family meetings after J.S.’s first disclosure played out as H.R. described, and not in the manner E.N. put forward. I do not use what I find to be a fabrication on E.N.’s part as consciousness of wrongdoing to assist as corroboration for the Crown’s case. But I do find that E.N. devised his accounts of J.S.’s accidental viewing of pornography in his room, and the sequence of events at the initial family meetings after J.S.’s initial disclosure, in order 1) to explain away J.S.’s allegation, and 2) to plausibly cover up his initial complete denial of any knowledge about J.S. viewing inappropriate pictures at his home.

e. E.N.’s “history”

[77] On E.N.’s evidence, E.N. and N.N. were opposed to babysitting J.S. when H.R. approached them, because they chose to stay to themselves, and they did not associate with children, given E.N.’s history. They “pleaded with” H.R. not to make them babysit, because accusations could be made about E.N. When H.R. persisted, E.N. and N.N. relented. E.N.’s “history” is central to the assessment of his evidence in several ways. I pause here to add that although I have been given no particular details of what this “history” might be, I have cautioned myself that I am not to engage in forbidden reasoning because of it; that E.N. has a “history” of some sort may not be used by me to infer that he is a bad person, who would do the sorts of things described by J.S.

[78] That “history” helped generate the babysitting rules that E.N. also discussed in his evidence. Among other things, J.S. was to stay out of E.N.’s room, and off of his computer. It was very clear from E.N.’s evidence that strict rules on that score were put into place to protect E.N. from having to face any kind of accusation.

[79] E.N. concluded his evidence in-chief by starkly asserting that he had never been alone with J.S., and that he would never have let that happen, other than the time that she sneaked into his room. In cross-examination he stated that he was careful to do nothing that could be seen as wrong. He was careful around J.S. He was concerned about what could be said. He did not want to put himself at risk.

[80] And yet, in that context, E.N. also testified that he looked at pornography while N.N. was babysitting J.S. in that small apartment. He alone used the laptop in his bedroom, and looking at pornography was one of his computer activities. He claimed that he would only do it when J.S. was in the kitchen with his wife. He had a shaving mirror on his amp to detect anyone in the hall behind him. Through its use he could turn off his pornography quickly, so that his wife would not catch him at it. But it is plain that E.N. was willing to take risks for sexual gratification while J.S. was in his home, a fact which belies his claims of being very cautious around J.S.

[81] Just so, if E.N. and N.N. genuinely had any concerns about E.N.’s history or about false allegations, it is inconceivable to me that E.N., or N.N. for that matter, would have allowed J.S. to sit on E.N.’s lap and hug him.

[82] But N.N. was content to permit J.S. to sit on E.N.’s lap. Given E.N.’s physical disabilities involving back and hips, he used a cane, a walker, and a wheelchair. J.S. was permitted to sit on his lap so long as she stayed still. N.N. testified that if J.S. twisted and turned, this would cause E.N. pain, and he would tell J.S. to get off. N.N. expressed no concerns about the lap-sitting.

[83] Not only was E.N. aware that this was a risky venture in terms of what could be said about E.N. because of how others might perceive it, but also because of the pain it could cause his bad hips and back. That their evidence agrees that J.S. did sit on his lap, and that E.N. added that J.S. used to hug him before he yelled at her for slapping him, makes their denials of E.N.’s opportunities to be alone with J.S. extremely implausible.

[84] I find that by January 2013 E.N. and N.N. had allowed the home babysitting rules to be relaxed to the point of non-enforcement. It was simply too taxing for N.N. to control this wilful child, and, unfortunately, N.N. trusted her husband. J.S. regularly sat on E.N.’s lap, both in N.N.’s presence, and in E.N.’s room, where J.S. was alone with E.N. and his pornography. E.N. did not need to worry that N.N. might overhear him talking with J.S., because N.N. simply had no concerns about E.N., and was not paying close attention.

[85] In the context of the whole of the evidence in the case, I do not believe E.N.’s evidence. I find it concocted, opportunistic, and implausible. E.N.’s evidence does not leave me with a reasonable doubt, either by itself, or in combination with any other evidence in the case, including that of N.N.

Evidence of N.N.

[86] N.N.’s evidence at this trial was awash in reliability and credibility issues. I find, for the reasons that follow, that N.N.’s own memory of events at issue in this trial was virtually non-existent. However, I also find that the evidence that she did appear to remember was not the product of her own memory.

[87] N.N. agreed to babysit J.S. in September 2012, when H.R. almost begged her to do it. She babysat every weekday; H.R. brought J.S. over in the morning, and N.N. would give J.S. breakfast, and take her to the bus stop after eight. She would then pick J.S. up at the bus after 3:35 p.m., and take her back to the N. home, where J.S. would remain for an hour or until H.R. came. N.N. made no mention at all of taking J.S. to her home if H.R. was to arrive home early, a claim advanced by E.N.

[88] In October, N.N. got H.R. to use Pat for babysitting, until Pat said she could not handle it any longer. N.N. told H.R. that she had to find another babysitter. N.N. did not want the job, because of the situation with E.N. and her, and what had happened in the past. She said that she did not want to take any chances. Ultimately, though, N.N. gave into H.R.’s “badgering” and agreed to babysit J.S., but told her to find another sitter soon.

[89] N.N. also testified about the babysitting rules, three of which she remembered only with some hesitation, and indicated that she, and not E.N., was to be responsible for taking care of J.S. In cross-examination, N.N. agreed that J.S. was difficult to supervise, as she would not listen, and would do whatever she liked, and would tire N.N. out. She agreed that she relied on E.N.’s knowledge of the rules as well, which allowed her to feel more comfortable about babysitting J.S. But she trusted E.N., and had no concern that he was not following the rules.

[90] According to N.N.’s evidence, she got the telephone number for H.R. of the mother of J.S.’s friend Dylan, and by October or November, this woman was in place babysitting J.S. N.N. continued babysitting J.S. only on Wednesdays and school PA days.

[91] N.N. could not remember how long she continued to babysit, and whether she continued to do so beyond October 2012. She initially remembered no more babysitting in 2012, and said that she did not babysit in 2013. Later in her evidence, but still in-chief, N.N. claimed to remember babysitting up until March 2013, at which point H.R.’s course in school ended, and so H.R. could take J.S. N.N. went on to state that she babysat occasional days after that, but that she could not remember the months or the days. In cross-examination, N.N. asserted that babysitting of J.S. without H.R. present “never” occurred after March 2015.

[92] While I accept H.R.’s account of the babysitting in 2013, and have significant concerns about the evidence of E.N. or N.N., on that point, I am satisfied that on any of the versions E.N. had ample access to J.S. to commit the offences charged.

[93] I have no confidence in N.N.’s actual recollection of events. Indeed, she demonstrated difficulty with the memory of significant events, and their temporal relationship to one another. Thus, when questioned by counsel for E.N., she testified that her husband had been on bail for a year to the time of trial, although he was granted bail in October 2012. When she was reminded of the fact of an “October” bail hearing, she revised her estimate down to six months. Everyone can have trouble with mathematics, but N.N. appeared able to forget a year of her life.

[94] In answer to a leading question, N.N. agreed that she was “always” with J.S., and claimed that there were not any times she was not with her at her apartment, except when J.S. was with H.R. there. N.N. was “always” with J.S., in the kitchen or in the living room. She would watch J.S. go into the washroom and return, or even be in the washroom with her, or have J.S. in with her. N.N. stayed with J.S. so that J.S. would not go into E.N.’s room, so that there would not be any trouble involving E.N. and J.S., because anything could be said. N.N. said that she wanted to protect E.N. and J.S. She denied that there were any things that happened during babysitting that she did not recall. I do not accept this claim.

[95] It is noteworthy that when she was asked at one point on more than one occasion by E.N.’s counsel why she did not want to continue babysitting J.S., N.N. did not express that J.S.’s hyperactivity wore her out or that N.N.’s duty of hypervigilance exhausted her. Rather, she stated that she wanted her freedom, and wanted not to have the responsibility of taking J.S. to the bus. I conclude that those indeed were N.N.’s genuine reasons for not wanting to babysit J.S. I do not accept that N.N. remained watchful of J.S. at her apartment.

[96] N.N. had difficulty controlling J.S. She described a few occasions that J.S. escaped her control or notice. Twice in one day, J.S. preceded N.N. up the stairs from doing laundry, and locked N.N. out of the apartment.

[97] On another occasion, J.S. disappeared from N.N.’s sight, when J.S. had been in the living room on N.N.’s computer, and N.N. in the kitchen, at the sink, with her back to J.S. N.N. searched the apartment for J.S., and ultimately found her hiding behind a chair in the living room. This incident provides no comfort that N.N. always knew where J.S. was, or took substantial steps to monitor her whereabouts. One is left to wonder how long J.S. was unattended, and how long it was before N.N. had even noticed J.S.’s disappearance. How many additional times did she just stop paying attention altogether, secure in her knowledge that E.N. also knew the rules?

[98] The only other time discussed by N.N. was when J.S. had sneaked into E.N.’s room, and had seen the pictures. N.N. was in the kitchen when she heard J.S. giggle. She went down the hall, and everything was “normal”. E.N. was at the computer, and there were no pictures on it. The first time she thought back about this incident was when H.R. had mentioned at the family meeting that J.S. had seen pornography, and that E.N. had grabbed her, and told her that she shouldn’t see that. I do not accept, from N.N.’s account, that she actually remembered this incident at all. Her comment that everything was “normal”, while it appears to support E.N.’s evidence, makes a mockery of her home rules. It certainly should not have been “normal” that J.S. was in E.N.’s room, but N.N. agreed that she had found J.S. in V.’s room on other occasions.

[99] In cross-examination, N.N. agreed that J.S. often went down the hall to N.N.’s room (which was opposite E.N.’s room) to look at beads, or to be alone. E.N. would sometimes be in his room with earphones on, and would get angry when J.S. tried to get in there. N.N. claimed that when E.N. was in his room, she would “always” be with J.S. in the kitchen, or watching J.S. closely. I frankly do not accept N.N.’s evidence about her vigilance. It is overstated to the point of implausibility.

[100] Concerning the first family meeting in September 2013, at which H.R. attended the accused’s residence with J.S., N.N. initially testified similarly to E.N., that H.R. told them in the kitchen of the home that J.S. had seen some inappropriate pictures on E.N.’s computer. E.N. said that she probably had, but that he had clicked them off when he noticed her in the room. E.N. then apologized. N.N. went on to testify that H.R. then asked J.S. twice if that was all she had seen, and that J.S. had told her yes, just pictures. H.R. asked J.S. if E.N. had touched her, and J.S. denied that.

[101] In cross-examination, N.N. added that E.N. said that J.S. had “snuck in on me”. When N.N. was asked where in the narrative of that event “she snuck in on me” fit, she was unable to answer. Indeed, when she was asked to say, as specifically as possible, who said what and when, N.N. repeated more of her evidence than necessary, contradicted herself, and was unable to give a clear account. I was left strongly with the impression that N.N. was not drawing on her own memory for the conversation at the first family meeting. The independence of N.N.’s evidence is a very real concern.

[102] N.N. said that H.R. had asked J.S. twice, at this meeting, “did he touch you?”, and that J.S. had twice denied it. When she was confronted with a transcript of her evidence at E.N.’s bail hearing, N.N. agreed that she had there said that H.R. asked that question four or five times of J.S., but that she now was saying J.S. asked only twice. She agreed that she had spoken with E.N. about the meeting, and that her husband had told her that is what had happened. I have concluded that that is not the only evidence that E.N. explained to N.N.

[103] N.N. did not recall her own contribution to the first meeting, as put forward by her husband, that she asked J.S. if she was sure that E.N. had not touched her. This utterance appears to me to have been inserted by E.N. to cast N.N. in a concerned and vigilant light. But no one else in the case remembers her saying it. Instead, according to N.N., H.R. asked J.S. “if that was all she had seen”, to which Jocelyn’s response was “just pictures”. “What else did you see?” was not put to H.R. or J.S., makes no sense in the context of E.N. and N.N.’s version of events or anyone else’s, and reflects general reliability issues with N.N.’s evidence.

[104] According to N.N., the day after the first meeting, at which J.S. was present, H.R. came over alone and told them that she was afraid that she would be put on the child abuse registry. N.N. indicated that “we were surprised because nothing had happened.” And “we were surprised that she would say this to us.” Apparently also at this meeting H.R. said that E.N. had grabbed J.S. and rubbed her chest. N.N. said that that did not happen, because she was there, in E.N.’s bedroom, where they were watching a movie.

[105] Although in examination-in-chief, N.N. had testified that E.N. had explained at the first meeting about the accidental viewing by J.S. of inappropriate pictures, in cross-examination she agreed that it was at the second meeting that E.N. admitted that it might have happened.

[106] N.N. could not remember whether she had spoken with her husband about the second meeting, but her constant use of the pronoun “we” is very telling. N.N.’s attribution to H.R. at that meeting of a claim that E.N. had rubbed J.S.’s chest clearly conflates a different conversation; that claim could not have been made at that second meeting in September 2013. That N.N. also slipped into the second meeting’s discussion a reference to an unrelated occasion at which she and E.N. and J.S. watched a movie in E.N.’s room further demonstrates how confused was her own recollection of any of the events of this case. Her sudden volte face about when E.N. had made his disclosure indicates that N.N. had a very imperfect grasp of the sequence and flow of events.

[107] N.N. also testified in cross-examination, and not particularly in response to any question, that after the family meetings, at some point H.R. had phoned and “ragged me out”. This vulgar expression would ordinarily attract no particular comment, except that it echoed the evidence of E.N., which preceded it, and during the recitation of which N.N. had been excluded from the courtroom. In cross-examination, E.N. claimed that H.R. had once come over in October, and “ragged out” on N.N., and left. Defence counsel urges me to consider that couples often unconsciously adopt each other’s manners of speech. While that may be so, I find it telling that this expression was employed by both E.N. and N.N. separately about the same person and in the same sort of circumstance.

[108] Repeatedly throughout the evidence of N.N., I sensed that N.N. had been instructed about what to say in order to support her husband’s defence. Her own memory was startlingly imperfect in many respects, as evidenced by her recollection of what went on at the second family meeting. But she was careful to assert that she was “always” with J.S. However, N.N.’s hesitation at recalling the babysitting rules, the attribution of a nonsense question to H.R. at the first meeting, and her admission that E.N. had told her what had been said at the first meeting, among the many other issues raised above, make it impossible for me to rely on N.N.’s evidence in almost any regard.

[109] N.N.’s loyalty to her husband far exceeded her memory of actual events. When her memory failed, as it often did, she appears to have turned imperfectly to her husband’s memory for assistance. Thus, what began as problems with the reliability of her evidence, expanded into concerns about her credibility.

[110] In the context of the whole of the evidence in this case, I do not believe N.N.’s evidence, and I cannot accept it. It does not leave me with a reasonable doubt, either by itself or in combination with any other evidence, including that of E.N.

Conclusion

[111] I have explained above my reasons for disbelieving the evidence of E.N. and N.N. in the context of the whole of the evidence, and that I have not been left in a reasonable doubt by it.

[112] I move on then to the third step in the W.(D.) analysis. I accept the description of events offered in the evidence of J.S., as corroborated by the evidence discussed above, and as placed in a narrative framework by the evidence of H.R., with the exception of various points I have noted above. The corroboration of important aspects of J.S.’s evidence by external evidence also gives me confidence in accepting J.S.’s evidence about issues for which there is no direct corroboration.

[113] On the third step of the W.(D.) analysis, on the whole of the evidence, I am satisfied beyond a reasonable doubt of the following:

(1) That the accused (Count 1) sexually assaulted J.S. on numerous occasions between January 1 and September 30, 2013, by rubbing her chest and vaginal area with his hands in his bedroom in E.N. and N.N.’s apartment. He rubbed her chest both above and below her clothing, and her vaginal area above and below her clothing, but over her underwear. He did this while he showed her pornographic pictures and videos on his laptop and described to her what was going on in the videos and pictures. J.S. did not consent and could not consent to this touching, given her age;

(2) That the accused (Count 2) sexually interfered with J.S., who was under the age of 16 years, in the same circumstances as described in Count 1, and during the same period of time, and at the same place. His purpose, in all of the circumstances of this case, was plainly sexual;

(3) That the accused (Count 3) did, on one occasion during the time period in question, and in the same circumstances, verbally invite J.S., who was under the age of 16 years, to “play with” his penis. I am satisfied that that invitation was for a sexual purpose;

(4) That the accused (Count 5) did, on numerous occasions, in the same circumstances, and for a sexual purpose, expose his genital organ, his penis, to J.S., who was under the age of 16 years. I am satisfied beyond a reasonable doubt that by so doing, the accused silently extended forward his invitation to J.S. to play with his penis.

[114] Accordingly, I find E.N. guilty on Counts 1, 2, 3, and 5 on the Indictment.

[115] Count 4 demands further consideration. As I indicated above, I am satisfied that E.N. showed J.S. pornographic pictures and videos. I find that the images were “sexually explicit material”, based on: the descriptions given by J.S. about the images she was shown; the nature of E.N.’s verbal description of the images, according to J.S.; the fact that pornography was found on E.N.’s laptop by police; the fact that E.N. admitted viewing pornography; and the titles of the electronic folder artifacts recovered from E.N.’s laptop, as described in Exhibit 4.

[116] What must be considered in Count 4 are the words “for the purpose of facilitating the commission of” the offences in Counts 1, 2, and 3.

[117] In R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 28-35, Fish, J. dealt with the offence of Child Luring in s. 172.1 of the Criminal Code, and considered similar wording in that offence. Justice Fish wrote (at para. 28):

Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, "facilitating" includes helping to bring about and making easier or more probable -- for example, by "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality.

Justice Fish was of the view that the words “for the purpose of facilitating” import an intent requirement into the luring offence that must be determined subjectively (Legare, at paras. 31-32). My view is that the same must hold true in the context of s. 171.1(1).

[118] In this case, I am certainly satisfied that E.N. was himself stimulated by showing J.S. sexually explicit material on his laptop. But the point for determination is whether E.N. showed J.S. the pornographic images for the purpose of making it easier to commit the other offences. A consistent element of J.S.’s testimony, which I have accepted, was that E.N. would also describe to her what was going on in the images and videos that he showed her, using explicit language. The only conclusion that I am able to draw from this evidence is that E.N. was using the images along with his “prurient discourse” to exploit J.S.’s “curiosity, immaturity or precocious sexuality”. He was intentionally grooming her to secure her continued cooperation.

[119] Accordingly, on the whole of the evidence in this case, I am satisfied beyond a reasonable doubt that E.N. was using the images that he was showing to J.S. to facilitate the commission of the offences named in Count 4, and I find him guilty on Count 4 as well.

A. D. KURKE J.

Released: 20150501

CITATION: R. v. E.N., 2015 ONSC 2853

COURT FILE NO.: 7469/14

DATE: 20150501

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

E.N.

REASONS FOR JUDGMENT

A. D. KURKE J.

Released: 20150501