R. v. H., 2015 ONSC 4054

COURT FILE NO.: 12-SA5106

DATE: 2015/06/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

J.J.H.

Accused

Mike Boyce, for the Crown

David Hughes, for the Accused

HEARD: March 30-31, April 1-2, 7-10, 13-15, 20-24, 27-29, 2015

REASONS FOR JUDGMENT

Aitken J.

Overview

[1] J.H. stands charged with five counts each of sexual assault, sexual interference, and invitation to sexual touching all arising from his relationship with his cousin, J.N., in the summer of 2012 when he was 35 and she was 15.

Context and the Events of the Summer of 2012

[2] R.N. and L.N. have four children: S.N.1., J.N. (the complainant), S.N.2., and L.N.2. The accused, J.H., is the son of L.N.’s sister, C.G., who also has a grandson, T.H., whom she raises as her child.

[3] J.H. met S.W. in 2001, when he was 24 and single, and she was 45, married, and the mother of three girls. By 2002, S.W. and J.H. were partners in a web design and hosting business, with J.H. being responsible for the design and technological part of the business and S.W. being responsible for administration, sales, and project management. By January 2002, J.H. and S.W. were romantically involved, and S.W.’s marriage ended. The couple’s relationship had its ups and downs. There was a significant break in the spring of 2006, when S.W. became aware of allegations by her middle daughter, H.W., to the effect that J.H. had made sexual advances towards her between 2002 and 2004, when she was 12 or 13. The police became involved, and S.W. ended her romantic relationship, though not her business partnership, with J.H. By the fall of 2007, J.H. and S.W. had become a couple again and, in August 2008, when H. went away to university, J.H. moved into S.W.’s home.

[4] S.W.’s bedroom was on the second floor, with the bedrooms of her daughters. J.H. had his own living and office space in the basement, where there was a couch, a bed, a television, and a computer. Adjacent to this living area was a laundry room which also had a fridge, freezer, microwave, and deep fryer. In 2012, S.W. maintained a small office not far from her home, where she worked most of the time. J.H. had a work area in the basement where he did most of his work. J.H. normally worked late into the night and slept during the day but, in the summer of 2012, he had daytime hours to spend with his cousins, J.N. and her two younger brothers.

[5] Prior to the summer of 2012, J.H. and J.N. only saw each other once or twice a year at family gatherings. They were thrown into more frequent contact in July 2012 because their grandfather, M.G., who lived next door to the N. family, had been brought home from hospital on Canada Day weekend so that he could die at home. He passed away two weeks later. L.N. cared for her father during the last few weeks of his life and was assisted by S.W. J.H. would drive S.W. to and from the grandfather’s home on almost a daily basis and would visit with the N. family while he was there. J.H. was not close to his grandfather. J.N., on the other hand, was very upset that her grandfather was dying.

[6] J.N. was already going through a difficult period in her life. She suffered from depression and was cutting herself. Throughout her childhood, she had difficulties at school and required additional support in the classroom in accordance with an individual educational plan. In high school, J.N. was placed in a special class for children with learning disabilities. Most of the students in that class were boys. J.N. was upset at not being in a normal high school program. She was angry with the world and, particularly, her parents. J.N. started cutting and burning herself in the fall of 2011, shortly after she entered high school, and this behaviour escalated over the year and into the summer of 2012. By the spring of 2012, the school had referred J.N. to a counsellor.

[7] S.W. observed how troubled J.N. was at the time and noticed that she was a cutter, like her daughter, H.W., used to be when she was 14. In order to help L.N. and J.N., S.W. suggested that J.H. spend some time with her. This would remove J.N. from a stressful situation at home and give her the opportunity of speaking with H.W., who was in Ottawa for the summer. S.W. invited J.N. over for a sleep-over. This first sleep-over occurred prior to the death of M.G. J.H. interacted very little with J.N. on that occasion.

[8] After J.N. started spending time at her home, S.W. encouraged J.H. to spend one-on-one time with J.N., in an effort to get J.N. to open up more about what was troubling her. S.W. told J.H. that J.N. had been cutting and burning herself, and had spoken of suicide. Initially, J.H. was not interested in befriending J.N., as he considered her rude and disrespectful and had no patience with her self-harming behaviour; however, very quickly, he acquiesced to the request and, by the last half of July, was spending time alone with J.N.

[9] It is clear from the evidence of J.N, L.N., and J.H. that, in association with one of the sleep-overs that J.N. had on her own at the W. home, J.H. took her to the conservation area at Mud Lake, where they walked and talked. While at Mud Lake, J.N. told J.H. about her depression and suicidal thoughts and he saw the cuts and burns on J.N.’s arms. He did not like the fact that she harmed herself. He told her that he was not sure how he could help her, but that she could call him any time. J.N. felt that he was someone to whom she could talk and, thereafter, she did start calling him.

[10] According to J.H., on another occasion, likely following a sleep-over involving the three younger N. children, J.H. took the children to Mud Lake, where they went on a long walk around the lake. This likely happened after M.G.’s death.

[11] Initially that summer, it had been S.W. who had asked L.N. if J.N. would like to come to her house; however, as the summer progressed, J.H. took a more active role in making such plans and, later in the summer, it was J.H., and not S.W., who was making the requests. On a number of occasions, J.H. asked L.N. if he could take J.N, S.N.2, and L.N.2 to Andrew Haydon Park to catch frogs. I find that J.N. together with the boys went to Andrew Haydon Park with J.H. on at least two occasions. On the second occasion, the plan was that T.H. would also be there, and J.H. would later take the children to S.W.’s home and cook them dinner. Although the evidence of the various witnesses was somewhat contradictory as to when each trip to Andrew Haydon Park occurred, I find that the first trip happened on August 16th, prior to the N. family going on a holiday to the United States on August 17th, and the second occurred at some point after their return on August 23rd, likely on August 24th. There may have been a further visit after that.

[12] L.N. also recalled J.H. asking if J.N., or J.N. and the boys, could have more sleep-overs, and she and her husband refused – something that angered J.N. They refused as a result of observations which L.N. and S.W. had made regarding interactions between J.H. and J.N. that they considered inappropriate.

[13] On one occasion in July, S.W. observed J.N. cuddling up against J.H. on a couch in the basement with her hand cupping his hand. S.W. told J.H. that J.N. was almost 16 years old, she was a young lady, and the two of them should not be so close physically. J.H. told her not to be ridiculous – J.N. was his cousin. Nevertheless, he agreed to speak with J.N. A short while later, S.W. again went to the basement, where she observed J.H. lying on the floor with J.N. lying perpendicular to him with her head on his shoulder or chest. S.W. again emphasized to J.H. that this physical closeness was inappropriate. J.H. claimed to have been explaining that to J.N. when S.W. had come to the basement, and J.H. was trying to not get J.N. upset. After S.W. brought these episodes to the attention of L.N., L.N. and R.N. decided not to let J.N. or the boys have any more sleep-overs at the W. home. They also did not want J.N. to be alone with J.H.

[14] J.H. recalled sitting on the couch in his basement room watching a movie with J.N. on the night that J.N. was having her second sleep-over at the W. home and after J.H. had taken J.N. to Mud Lake earlier in the day. According to J.H., J.N. was lying on the couch with her head on a big pillow that was next to him; her head was not on J.H. At one point, J.N. reached around and took one of his hands in hers. S.W., who had been upstairs with S.N.2 and L.N.2, came down to the basement, observed the physical closeness of J.H. and J.N., and intervened as just described. J.H. explained that J.N. had been crying all day and telling him her problems. He did not consider the episode to have been inappropriate.

[15] J.H. stated that it was the next day, when J.N., S.N.2, and L.N.2 were in the basement that he went downstairs and found J.N. laying on the floor with half of her body under his bed, while her brothers were on the couch watching television. J.H. testified that he lay on his back beside J.N. so that he could talk to her about not being so physically close to him. According to J.H., J.N. became sad and put her head on his shoulder. It was at that point that S.W. came downstairs and nodded to J.H. to come upstairs and speak with her.

[16] Nothing turns on whether the two incidents occurred on the same day or on consecutive days - the important point is that they occurred, and J.H. had notice from S.W. that she, at least, considered them inappropriate, so much so that she insisted on their telling L.N. and R.N. when they came to pick up the children.

[17] On one occasion, at some point after M.G. had died, both L.N. and S.W. observed J.H. and J.N. standing on the lawn in front of the N. home embracing for an inordinate length of time. L.N. found it so odd that she knocked on the window to get their attention and then called J.N. into the home.

[18] Later that summer, in the first half of August, J.H. came to the N. home unannounced on a weekday when both L.N. and R.N. were at work and the three younger children were home alone. R.N. went home to feed lunch to the children and called L.N. to express his concerns about J.H. being in the home without first having spoken to L.N. or R.N. L.N. immediately went home to investigate why her nephew was there. She described how she found J.H. and J.N. in the basement in the dark. Pillows from the couch had been placed in the basement windows, despite there being blinds on the windows. The lights were off. S.N.2 and L.N.2 were upstairs playing on the computer. L.N. had a strange feeling about what was going on and told J.H. that he had to call her or her husband before coming over to the house.

[19] J.H. testified that he had gone to the N. home at J.N.’s request because she had wanted to show him something. When he got there, J.N. showed him a suicide note. He had read it upstairs while J.N. went downstairs, and then he had called L.N. to tell her about it. He had then gone down to the basement to speak with J.N. J.H. acknowledged that the lights were off in the basement, but he denied that there were any pillows blocking the windows. According to him, although there were blinds on the windows, some light got in. L.N. was never asked if J.H. had called her from the N. home to tell her about the suicide note, and her evidence was clear that it was her husband who alerted her that J.H. was at their home unannounced.

[20] S.W. observed that, over the course of the summer and into the fall, J.H. seemed more emotionally distant from her, he was sleeping more, and he was eating less. He denied that anything was wrong and said that S.W. was being overly sensitive. S.W. also observed that, unlike in the past, J.H. would put his cellphone on silent mode. On one occasion when they were working late, S.W. saw that J.N. had sent J.H. an email saying “I love you”. S.W. told J.H. that that was inappropriate, and he wrote it off as J.N. simply saying good-night.

[21] On Labour Day weekend, when S.W. and J.H. were at the N. home and S.W. and L.N. were on their own, L.N. understood from S.W. that she should be worried about J.H. and J.N. being on their own. S.W. said that J.H. and J.N. were becoming too emotionally attached, and that the same thing had happened between J.H. and her middle daughter, H.W. S.W. suggested that L.N. check J.N.’s cellphone for any text messages. The two women agreed to meet later to discuss the situation. Following this conversation, L.N. looked in a binder that J.N. kept and discovered a love letter to J.H. that she had composed, as well as other writings by J.N. speaking about her feelings and her depression. After seeing this, L.N. checked J.N.’s cellphone and discovered numerous text messages back and forth between J.H. and J.N. saying such things as: “I love you babe”, “I love you too babe”, “I miss you so fucking much”, and “I wish you were here so that I can show you how much I love you”. One text from J.H. to J.N. said: “Are you up yet sweetie?” L.N. felt sick when she saw these texts. She called S.W. and told her the gist of what she had seen. They arranged to meet the next day at Tim Horton’s. During that meeting, L.N. showed S.W. the love letter that J.N. had written to J.H., and described the nature of the text messages that she had seen.

[22] S.W. returned home and confronted J.H., asking what he had done with J.N. She told him about the love letter she had seen and about all of the text messages that L.N. had seen. J.H. acknowledged that he had gotten emotionally involved with J.N., and he apologized for having done so. He acknowledged that maybe some things that had happened had been inappropriate, but he denied that anything physical had occurred between them. He said that he did not know why he needed attention like that. S.W. told J.H. to get out of the house. That day, J.H. sent messages to S.W. apologizing for everything, acknowledging that he needed help to understand why he fell into temptation, and acknowledging that he craved attention and wanted to feel more loved in life.

[23] L.N. sent texts and emails to J.H. telling him to have no further contact with J.N., and asking him to make the split sound like it was his idea, and not that of L.N. She also spoke to him by phone. During that conversation, J.H. said that he needed help and that he would be seeing a psychiatrist. He said that what he was doing was wrong, and he apologized. He said that he would not bother J.N. or the N. family again. He conveyed the same message to L.N. in texts in which he said that he was ashamed and that he would seek help to find out why he had started to care for someone so much when he was already happy in his life.

[24] Despite this undertaking, on the first day of school after the Labour Day weekend, J.H. arranged to meet J.N. at lunch. J.H. said that he would continue to stay in contact with J.N. by text and phone, despite being told by L.N. to stay away from J.N. J.H. justified his seeing J.N. that lunch hour on the basis of her having told him that she wanted to kill herself and run away from home, and he felt he needed to calm her down. Despite his supposed concerns about her mental health, he did not speak to either of her parents or let them know that he was meeting her at school.

[25] That night, J.N. tried to commit suicide by smashing through her bedroom window. It took the intervention of L.N., R.N., a friend of J.N., and paramedics to get J.N. safely to CHEO that night. L.N. again looked at J.N.’s cellphone and discovered that, earlier in the day, J.H. had been communicating with J.N. by some messaging technique and had suggested that he get a new cellphone so that he could continue communicating with her.

[26] At the request of L.N. and R.N., J.H., reluctantly, agreed to meet with them and S.W. the following evening at S.W.’s home to discuss what had happened. The N.s decided to bring J.N. to the meeting. During the meeting, the N.s and S.W. expressed to J.H. and J.N. that what they had was an unhealthy relationship and that it was not normal for them to be communicating in the way they were or to be spending time alone together. R.N. made it very clear to J.H. that he was to have no further contact with J.N. in any format, and he had J.H. confirm, in earshot of J.N., that S.W. was the love of his life.

[27] From that Wednesday evening to the following Sunday, J.N. stayed out of town with her uncle and aunt. On the Sunday, she came to a family party to celebrate her grandmother’s birthday. At that party, L.N. and J.N. had a private conversation during which L.N. told J.N. that J.H. had done inappropriate things in the past with H.W., though she did not specify what. When L.N. asked J.N. if J.H. had ever done inappropriate things with her, J.N. disclosed the incidents which are the subject matter of the current charges against J.H. More particularly, she claimed that she and J.H. had done “69” and that he had “fucked her up the ass”. After the party, L.N. and J.N. met with S.W. and J.N.’s aunt, at which time J.N. told the other women about the incidents that had occurred with J.H. The following morning, L.N. and J.N. met with the school guidance counsellor, and J.N. repeated what she had told her mother and the other women. The counsellor advised the Children’s Aid Society who then advised the police.

[28] Meanwhile, S.W. had advised J.H. that J.N. was alleging that there had been sexual contact between the two of them. J.H. denied that anything of that nature had occurred. A day or two later, J.H. spoke again with S.W. He claimed to have told his mother everything, and he wanted to tell S.W. everything as well. He stated that he had not done anything, but that J.N. had become very physical with him. When testifying, S.W. claimed that she could not remember all of what J.H. had told her. She refreshed her memory by referring to her statement to the police, and confirmed that it was all set out there. According to S.W., J.H. told her that J.N. had started kissing him on the lips, despite his telling her to kiss him on the cheek. She had tried to rub up against him. On one occasion, she had come up to him in the laundry room and had said: “aren’t you hot for me”. On another occasion, when he was in S.W.’s bedroom, she had tried to get him to lie on top of her on the bed. According to S.W., J.H. told her that, after he and J.N. had taken T.H. home one evening, and they had stopped at the side of the road before returning to S.W.’s home, J.N. had gotten out of the car, he had followed her, she had jumped on him, they had fallen down, J.H. had tried to move away, and J.N. had got on top of him. According to S.W., J.H. said that he told J.N. on each of these occasions that she could not act like that, J.N. would cry, and he would promise not to tell anyone what she had done. In fact, he had not told anyone about these incidents until J.N.’s allegations surfaced.

[29] Under cross-examination, J.H. denied that he had ever said to S.W. that J.N. had kissed him on the lips, that she had lain on the bed in S.W.’s room and had tried to get him to touch her, and that she had tried to get J.H. to lie on top of her.

[30] At no point prior to L.N. hearing the allegations J.N. made against J.H. had he ever raised any concerns with S.W., L.N., or R.N. about J.N.’s level of affection toward him or about J.N. initiating sexual contact with him. When testifying, J.H. claimed that, at the time, he did not consider it a big deal. He thought that maybe J.N. had a “little girl crush” on him – that was all. At no time over the summer of 2012 did J.H. stop requesting to see J.N. and her brothers or did such requests get less frequent. At no time during the summer of 2012 did J.H. stop texting or communicating privately with J.N. in what can only be described as an intimate fashion. Even when she was away on vacation with her family, he continued to email with her.

Communications Between J.H. and J.N.

[31] By mid-July through to early September, J.N. and J.H. were in regular communication via text messages, MSN, and phone calls. In texts, they would discuss how their days were going, how they missed each other, and when they would see each other. The communications included lots of “x’s” and “o’s” in both directions. In one on August 30th at 3:11, J.H. said: “see u in about an hour! love u … be all pretty for me! ox”. In another on August 31st at 4:57, he said: “lov u too, sweet dreams when you finally close your pretty eyes. think of me. good night. ox”. J.H. acknowledged that there could have been at least a hundred texts like that between himself and J.N., and they all would have been what he termed “caring”, “flattering”, and “overly complimentary”. These texts continued even after J.H. alleges J.N. engaged in inappropriate behaviour with him that he told her to stop.

[32] J.H. would inquire as to whether J.N. could spend time with him without her brothers, and specifically asked about a sleep-over for the weekend of August 16-17th, when S.W. was out of town and the N. family was heading on vacation in the United States. Such a plan was not acceptable to L.N. J.N. did go to the W. home with J.H. and S.N.2 on the afternoon of August 16th, when she alleges J.H. gave her oral sex in S.W.’s bedroom and she declined to reciprocate. At 1:55 a.m. on August 17th, J.N. wrote to J.H.: “I’m good. And don’t worrie, w.e. happens, it will stay btwn us, I promise … Just like u promised me … And sorrie for putting u in that position … It wus our one and only chance, and I’ll treasure it … I love you … And sorrie again … I don’t want us to feel weird around each other. I’ll miss you SO much when I’m gone …” Within minutes, J.H. responded: “Ok! And I am happie! And I will miss you.” To which J.N. responded at 2:27: “Good! I’m glad the shell broke too. Yes, I think”.

[33] Only a smattering of the texts and other forms of written communication between J.H. and J.N. survived to be made exhibits at trial. I accept the evidence of J.N. (as corroborated by L.N.) that J.H. instructed her to delete their messages, and she did so in regard to most of them. Those that remain, together with the draft love letter penned by J.N., leave no doubt that J.N. was infatuated with J.H. and believed that she was in a meaningful, romantic relationship with him. J.H. did nothing to dissuade her of that understanding and, in fact, encouraged it, as can be seen from some of his texts quoted above. Most of the communications between the two occurred in the wee hours of the morning which are normally associated with the most intimate interactions.

Charges

Counts 1-3: Andrew Haydon Park Incident One – At the Picnic Table

[34] On August 16th, when S.W. was out of town, J.H. took J.N., S.N.2, and L.N.2 to Andrew Haydon Park and offered to pay S.N.2 and L.N.2 money for catching reptiles. They went to the area near the band shell, where there is a small pond and lots of frogs, minnows, and turtles. While the boys were off doing that, J.H. and J.N. sat at a picnic table. According to J.N., she got up her courage to express to J.H. how she would like to be closer to him and to be able to open up to him. She said that the two of them kissed a few times, just baby kisses. J.H. acknowledged that the two of them had been sitting at a picnic table near the pond while the boys were searching for reptiles, but he denied that there had been any kissing or other physical contact between them.

Counts 4-6: S.W.’s Livingroom and Bedroom Incident

[35] According to J.N., later that same day, after J.H. had dropped off L.N.2 at his soccer practice, and had taken S.N.2 and J.N. back to S.W.’s home, S.N.2 was in the basement playing on the computer and J.H. and J.N. were on the ground floor in the kitchen. J.N. and J.H. started kissing. They moved into the living room where J.H. sat on the couch and J.N. sat on a stool facing him. They were talking about J.N.’s depression and suicidal thoughts. J.H. told J.N. to come closer, and she moved onto the couch, and then, at J.H.’s request, got on top of him. J.H. said that he did not want to risk being seen by anyone, and he suggested that they go upstairs. They went into S.W.’s bedroom. J.H. lay on the bed and J.N. got on top of him. They were clothed at the time. J.N. did not like that position, so she told J.H. to get on top of her. At this point, J.H., with J.N.’s help, took off J.N.’s jeggings. In her initial interview with Detective Giampaolo, J.N. described what happened next as “69” or “eating out”, but she then clarified for Detective Giampaolo that it was just J.H. who performed oral sex on her. After that, she put her jeggings back on. J.H. then asked her if she wanted to see something. He pulled his penis out of his jeans and asked her if she wanted to taste it. She was too nervous and said that she would pass on that. Instead she gave him a hand job. After a little while, J.H. said that J.N. should go downstairs and see what her brother was up to. He put his penis back in his jeans, and the two of them tidied up their hair and left the room.

[36] When Detective Giampaolo asked J.N. if J.H. had ejaculated, she answered yes, but it is very clear from her subsequent description of what happened, that she was confusing the words “ejaculation” and “erection”. In her testimony at trial, she confirmed that she had confused the two words and that, at no time, did she intend to convey the message that J.H. had ejaculated during this incident. I accept her statement without reservation.

[37] In examination in chief, J.H. gave a detailed description of the events of that afternoon. He stated that he, J.N., and S.N.2 had been sitting on the couch in the basement, doing their own things. J.N. had gone upstairs for about 10 minutes. He had gone upstairs and had knocked on the powder room door. J.N. was inside. He advised her that he was going upstairs to the bathroom in S.W.’s bedroom. When he exited the bathroom, J.N. was coming into the bedroom. She offered gum to J.H. As he was opening it, she told him to move his arms and then she jumped on him with a bear hug and put her arms around his neck. He told her not to, in his words, “pull that shit with me”, at which point, she started to cry. He tried to calm her down and told her that he would not tell her mother, but she could not do that again. He told her to fix herself up before she came downstairs, as her eye makeup had run. He went downstairs to join S.N.2, and J.N. came down a bit later. J.H. denied that any form of sexual conduct had occurred between him and J.N. on that day. He never told either S.W. or L.N. about this episode.

[38] Under cross-examination, J.H. could not remember the exact chronology of events after he and the children arrived at the W. home; however, he was adamant that at no time were he and J.N. alone in the kitchen. He explained that when he came up from the basement to the ground floor, he knocked on the powder room door just to make sure J.N. was alright, though he acknowledged having no reason to think that she would not be. He added to the description of the event in S.W.’s bedroom by saying that, after he removed J.N.’s arms from around his shoulders, she fell onto the bed. Then she sat up and he explained to her that she had to stop that behaviour. At that point, she started to cry. J.H. thought her behaviour had been inappropriate because she was being overly affectionate with him, but he did not consider it sexual. He did not consider it significant enough to tell anyone about it.

Counts 7-9: Laundry Room Incident

[39] According to J.N., on the second occasion when J.H. had taken her and her two brothers to Andrew Haydon Park to catch frogs, T.H. had joined them there, and then they had all returned to the W. home to have some food, another sexual encounter occurred in the laundry room in the basement where J.H. was preparing chicken wings in a deep fryer. J.N. went into the laundry room to speak with J.H. She was leaning up against and then sitting on his freezer. J.H. approached her and asked if she would like to lose her virginity with him. They each touched the other over their clothing. J.H. then tried to remove J.N.’s shorts, but they were too tight and her position and their rushing made that impossible, so they kissed each other and, in J.N.’s words, made out. Someone called down to see if the food was ready. The two of them fixed up their clothing and hair and went upstairs.

[40] J.N. did not mention this incident to Detective Giampaolo during their interview. The first time she mentioned it in a formal statement was at the preliminary inquiry, though her evidence at the preliminary inquiry was that she had told her school counsellor about this incident right from the beginning, and she had told her psychologist about it prior to the preliminary inquiry.

[41] Under cross-examination, J.N. testified that, before this incident, she had been upstairs with T.H. and her brothers, and S.W. had asked her to go downstairs and ask J.H. when the chicken wings would be ready. When describing this incident at the preliminary inquiry, J.N. jumped around in the chronology that she provided and did not specifically mention that she had been upstairs with T.H. and her brothers prior to coming downstairs and into the laundry room at S.W.’s request. Aside from this, her descriptions of the events of that afternoon given at the preliminary inquiry and at trial were detailed and consistent and, in certain key respects, were similar to what J.H. described at trial.

[42] J.H. recalled everyone going downstairs when they got to the W. home from Andrew Haydon Park. The boys were rough housing with boxing gloves. He could not remember what J.N. was doing or what he did, though he was probably getting supper ready or speaking with S.W., who was already home from work. At some point he told the children that the chicken wings were almost ready, and he thought all of them had gone upstairs. He stated that, while he was still in the laundry room, J.N. came back downstairs, observed that he was hot and sweaty, and asked him: “are you hot for me?” He told her not to say that kind of thing. A few minutes later, S.W. came downstairs and J.N. went back upstairs. J.H. took the chicken wings upstairs to the children and went out on the deck to speak with S.W.

[43] T.H.’s evidence was that when he, J.N., S.N.2, and L.N.2 got back to the W. home after having been at Andrew Haydon Park, at no time were the four children separated. At first, they all hung out in the basement with J.H., play boxing with one another – something that J.N. and J.H. also described. Then, according to T.H., the four children went up to the kitchen and waited for J.H. to finish cooking the chicken wings in the laundry room. He recalled S.W. being at home and sitting on the back deck, something J.N. and J.H. also recalled.

[44] J.N.’s description of the events that late afternoon at the W. home was more detailed and textured than the description offered by either J.H. or T.H. She described how the play boxing had involved different combatants at different times, how one of her brothers was on the computer, how she was listening to music and watching the others, how at a certain point the boys had decided to collectively take on J.H., how during the play fighting, J.H. had picked her up and thrown her on his bed, how J.H. had told everyone to settle down and the boys had then played with the guitar and drums, how the boys had gone upstairs to watch a movie on the computer, how T.H. had come downstairs again, how she and T.H. were talking on J.H.’s bed, how J.H. had gone upstairs, how her brothers had turned the lights off in the basement as a trick, how J.H. had come downstairs and discovered them sitting there together in the dark, and how he had questioned what they were up to. J.N. was not sure on how it was that she went into the laundry room to see J.H., who was cooking the wings, but she believed it was because S.W. had sent her to find out when dinner would be ready. This was J.H.’s recollection as well. I reject T.H.’s evidence that he, J.N.’s brothers and J.N. were together for every minute until dinner. This evidence was given categorically in an obvious effort to assist J.H. in his defence. It was contradicted by both J.H. and J.N.

[45] When the children were eating the chicken wings, J.H. went out on the deck with S.W. When the meal was done, J.N. and T.H. went for a walk without directly telling either S.W. or J.H. S.W. noticed that the children were walking on the road and told J.H. to go and find them. When J.N. and T.H. were walking in the area, T.H. confided in J.N. that he was also cutting himself. The two commiserated together and, when J.H. pulled up to them in his car, the two were giving each other a hug. J.H. told T.H. and J.N. to get in the car, they returned to the W. home so that T.H. could collect his things, and they immediately left to drive T.H. home.

[46] During the drive, T.H. and J.N. sat in the backseat and whispered to each other, not including J.H. in the conversation. When they arrived at the home of J.H.’s mother, all three went in. J.N. and T.H. continued to speak privately in the kitchen while J.H. spoke with his mother in the living room. C.G. expressed a concern that J.N. may be speaking to T.H. about her problems; C.G. did not want T.H. to be influenced to engage in self-harming behaviour, and she told J.H. that. While they were there, S.W. called J.H. to find out when he would be getting home, as he was taking longer than she had anticipated, S.N.2 and L.N.2 were at her home, and L.N. was expected shortly to pick up the three children.

Counts 10-12: Cedarview School Incident

[47] J.H. was clearly not in a good mood when he was driving J.N. back to the W. home – so much so that J.N. chose to get into the back seat on her own. J.H. stopped by the side of the road near Cedarview School and told J.N. to get into the front seat so that they could talk. He was angry with J.N. for going for a walk with T.H. without telling him. According to J.N., he accused her of choosing T.H. over him to talk to about her problems. He asked her if she was going to do the same stuff with T.H. that she did with him. J.N. was furious that J.H. was telling her only to speak to him, and was accusing her of being sexually involved with T.H. But according to her, after she had told J.H. that it had been T.H. who had wanted to talk to her and that T.H. was cutting, like she was, J.H. calmed down. According to J.N., he then said: “let’s have make up sex”.

[48] When describing this incident to Detective Giampaolo, J.N. initially stated that she and J.H. got out of the car and went onto the grass. She started to feel J.H. on his stomach and chest and then all over. Then she gave J.H., in her words, a “blow job”. J.H. then felt J.N.’s breasts and vaginal area. At some point, the two of them had taken off their clothes. While they were feeling each other, S.W. again called J.H., and he told her that they were on their way home. Before the two of them got dressed, J.H. said to J.N. “one more thing”. He told her to get down on all fours and then, in her words, he touched his “dick” to her “ass”. She did not experience any pain, and she assumed that his penis was touching her on the outside and not penetrating her. Then they got dressed and returned to the W. home.

[49] When testifying in chief, J.N. clarified that she and J.H. had started touching each other over their clothing on their shoulders and chests when they were in the car. When they moved onto the grass, J.H. removed J.N.’s clothing and started to touch her breasts and vaginal area. She was lying on the ground and he was on top of her. It was at this point that S.W. called. J.N. started to get dressed and J.H. told her to wait a second. When he was off the phone, he approached J.N. and asked her to get down on all fours. He had his top on, but not his shorts. That is when she said he touched “his dick” to “her ass”. Then he said they needed to get dressed and get home, because S.W. was waiting.

[50] Under cross-examination, J.N. provided additional details regarding the state of undress of herself and J.H. at different points during this incident. She said that when J.H. had taken off his clothes, he had left his boxers on. When she had taken off her clothes, she had left her bra on. When S.W. called the second time, she was in the process of gathering her clothes and had put on her top, prior to J.H. telling her to get down on all fours. J.H. by this time had on his top. The description given by J.N. at the preliminary inquiry was somewhat different from this. She described J.H. as having his clothes on when he was undressing her and of his having to unzip his pants to take out his penis before touching it to her backside. She was not asked whether at any time, he had his pants or shirt off, but the impression left was that he had not.

[51] Under cross-examination, J.N. left out any reference to her giving J.H. a “blow job” during the course of this incident and, on re-examination, she stated that she did not think that she had given J.H. a blow job during the incident on the grass.

[52] J.H.’s agreed that he had not been in a good mood when driving J.N. home. He accused her of telling T.H. that she was suicidal and was cutting, and he told her that he did not want her telling T.H. about any of this. When J.N. told him that it was T.H. telling her about his cutting, J.H. did not believe her at first. According to J.H., it was at this point that S.W. called a second time. J.N. stormed out of the car. She walked about 25 feet away from him. He went to her. J.N. turned around and put her arms around his neck. She said that school was starting and she was not going to be able to see him anymore. She was worried that he was going to speak to her mother. According to J.H., he tried to calm her down and reassure her. He told her she could not get physical with him like she was. He felt like she was trying to pull him on top of her. He pulled her arms off him and, in the process, she fell to the ground. He remained standing. He pulled her up with his hand. They returned to the car and drove to the W. home where L.N., shortly thereafter, picked up J.N. and the boys.

[53] S.W. recalled phoning J.H. a second time as she waited for him and J.N. to return. She again asked when he would be home and he told her that he had stopped by the side of the road to talk to J.N. After the children had been picked up by L.N., S.W. expressed her annoyance with J.H. for taking so long to return home. He explained that he was under the impression that J.N. was speaking with T.H. about cutting, his mother did not want her to do that, J.H. was explaining that to J.N., she got upset and said that that was not what she and T.H. had been discussing, and he had apologized to her. J.H. did not tell S.W. that he and J.N. had been out of the car or that anything physical had happened between them.

Counts 13-15: Andrew Haydon Park Incident Two – In the Wooded Area

[54] J.N. described another incident when J.H. was supposed to take her and her brothers rock climbing but, instead, they had gone walking in the forest at Andrew Haydon Park. This was the day when her brothers caught a turtle. While her brothers were exploring, J.N. and J.H. engaged in sexual activity. He rubbed her vaginal area outside her clothes. She took out his penis from his shorts and, in her words, gave him a “blow job”. She then described giving him a “hand job”. They stopped when they heard J.N.’s brothers. J.N. recalled J.H. saying to her: “I’m so hard for you”.

[55] When testifying, J.N. described this incident as happening when she and J.H. were in an area of bushes. There were no pathways, and no other people were walking by. Defence counsel called several witnesses to testify as to the topography, vegetation, and amenities at Mud Lake and Andrew Haydon Park. The evidence relating to Mud Lake was irrelevant, as J.N. was not alleging that any of the incidents forming the basis of the criminal charges occurred at that locale. The oral evidence and aerial photographs support the conclusion that there are forested areas within Andrew Haydon Park that are dense enough to provide some privacy to individuals and would fit the description of the locale where J.N. says the second incident at Andrew Haydon Park occurred.

[56] J.N. could not recall when this incident at Andrew Haydon Park happened. She was confident that it did not occur on or before August 16th, in part because, on that date, she had been reluctant to perform oral sex on J.H. in S.W.’s bedroom, but she was no longer reluctant to engage in this activity when she performed oral sex on J.H. at Andrew Haydon Park. J.N. did not think this incident occurred on August 24th, the day J.H. and J.N. were likely at the park with J.N.’s brothers and T.H; however, she could not be certain about that. J.N.’s evidence left open the possibility that there may have been a further trip to the park with her brothers and J.H. when this incident occurred.

[57] J.H.’s evidence was that, on approximately August 24th, he took the children on a long walk around the whole park so that L.N.2 and S.N.2 could see where the bigger ponds were. Neither T.H. nor J.H. could remember when T.H. met the others, and it is unclear from the evidence of both whether T.H. was on the long walk around the park or whether that occurred prior to his meeting the others. T.H. described his being at the park for a couple of hours; however, J.H. described his taking the N. children there in the late morning or early afternoon and remaining there until 4:00 or 5:00 p.m. It is possible that the incident J.N. described as occurring at Andrew Haydon Park in a forested or bushy area took place while she, J.H., and the two boys were exploring the park, prior to T.H.’s arrival.

Legal Principles

R. v. W.D.

[58] J.H. is presumed to be innocent of all of the charges against him. It is the obligation of the Crown to prove the essential elements of each offence beyond a reasonable doubt before J.H. can be found guilty of it. Proof beyond a reasonable doubt is a very high standard – one approaching absolute certainty. If I am sure that J.H. committed the offence in question, I must find him guilty of it. If I have a reasonable doubt in regard to any essential element of the offence, then I cannot be sure that J.H. committed it, and I must find him not guilty of that offence.

[59] J.H. testified. Pursuant to R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, if I believe J.H.’s evidence that he did not commit an offence charged, I must find him not guilty of that offence. Even if I do not believe J.H.’s evidence, if it leaves me with a reasonable doubt about an essential element of an offence charged, I must find him not guilty of that offence. Even if J.H.’s evidence does not leave me with a reasonable doubt about an essential element of an offence charged, I can convict him of that offence only if the rest of the evidence that I accept proves all essential elements of the offence beyond a reasonable doubt.

[60] The task at hand is not to determine which version of events I prefer, but to decide whether the Crown has proven each essential element of an offence beyond a reasonable doubt.

Age and Consent

[61] It is not in dispute that, when all of these events occurred, J.H. was 35 years of age, J.N. was 15, and J.H. was aware of J.N.’s age.

[62] By virtue of s. 150.1 of the Code, it is not a defence that J.N. consented to the activity that formed the subject-matter of the charge. In other words, the question of consent is irrelevant to the consideration of whether an offence under s. 271(1), s. 151, or s. 152 occurred in the circumstances of this case.

Sexual Assault

[63] In regard to the charges of sexual assault under s. 271(1) of the Code, the Crown must prove beyond a reasonable doubt that J.H. intentionally applied force to J.N. in circumstances of a sexual nature.

Sexual Interference

[64] In regard to the charges of sexual interference under s. 151 of the Code, the Crown must prove beyond a reasonable doubt that J.H. touched J.N. for a sexual purpose, and she was under 16 years of age at the time.

Invitation to Sexual Touching

[65] In regard to the charges of invitation to sexual touching under s. 152 of the Code, the Crown must prove beyond a reasonable doubt that J.H. invited J.N. to touch him, or herself, for a sexual purpose, and she was under 16 years of age at the time.

Sexual Circumstances or Sexual Purpose

[66] There can be no doubt whatsoever that the touching that J.N. described as having occurred in S.W.’s living room, bedroom, and laundry room, and on the field near Cedarview School was done for a sexual purpose and in circumstances of a sexual nature. Considering the relationship between J.H. and J.N. that was developing during the summer of 2012, as evidenced by the time they spent together, the number and nature of the communications they had, and the admissions made by J.H., I also find that any kissing that occurred while J.H. and J.N. were sitting on a park bench at Andrew Haydon Park also occurred in circumstances of a sexual nature and for a sexual purpose.

[67] The real issue in this case is whether the touching that was sexual in nature and done for a sexual purpose, as described by J.N., actually occurred. To decide that, I must consider the credibility of J.N. and J.H., and the reliability of their evidence. That assessment relies, in part, on the weight which can be assigned to the evidence of other witnesses.

Credibility of the Witnesses and Reliability of their Evidence

L.N.

[68] Despite L.N. being devastated as a result of the allegations J.N. made against J.H., and her feeling partially responsible for letting her be in his company so much during the summer of 2012, L.N. did not testify in an angry or aggressive fashion. She presented as someone who had not jumped to conclusions as the events of that summer were unfolding, and who had tried to keep an open mind. When testifying, she did not overstate things, and appeared to be balanced and fair. She was cross-examined mostly on the timing of events. She was a good historian, who acknowledged when she was not sure of something or could not remember precise timelines. Her evidence was consistent with that of J.N. and S.W., and much of it was confirmed by J.H. I found L.N. to be credible and her evidence reliable.

S.W.

[69] S.W. professed to always telling the truth, and I have no doubt that she was trying to do so when testifying. Her memory was good in terms of the specifics of various events and the order of events. Her evidence was given in a balanced and non-judgmental fashion. Much of her evidence coincided with that of J.N., L.N., and J.H.

[70] My only negative observation is that S.W.’s on-going emotional attachment to J.H., and the apparent need she has had over the last 14 years to have him in her life, held S.W. back from answering questions in a full and frank fashion when she perceived those answers might be particularly harmful to J.H. One example was S.W.’s obvious reluctance to express fully the admissions J.H. made to her regarding J.N.’s allegations, as S.W. had initially done to the police when she gave her statement in September 2012.

[71] I note that, after S.W. kicked J.H. out of her home, the couple remained in contact and have continued to do so up until the trial. The business partnership was changed into a sole proprietorship in S.W.’s name, but S.W. relied on J.H., first, to teach her how to set up and keep running the technical side of the business and, subsequently, to sort out technical glitches as they arose. The couple communicate via email and phone conversations, with occasional meetings at the home of J.H.’s sister. When testifying, J.H. professed his continuing love of S.W. Although S.W. claimed that her on-going relationship with J.H. in no way affected her evidence, I conclude that it was a shadow that coloured some of her answers.

T.H.

[72] T.H. is 16 years old and was 13 when the events in question in this trial occurred. He has always lived with his grandmother, C.G., J.H.’s mother. In 2012, T.H. spoke with J.H. very often and went over to see him almost every weekend. T.H. continues to spend many weekends with J.H. He is very close to his uncle and considers him a father figure.

[73] Prior to the summer of 2012, T.H. would see J.N. a couple of times a year at G. family events and, on those occasions, as well as during the summer of 2012 when the family was gathering due to the illness and death of M.G., T.H. enjoyed hanging out at the N. home, predominantly with S.N.2 and L.N.2, but also with J.N. After J.N.’s allegations surfaced, L.N.’s family and C.G.’s family have not been on speaking terms.

[74] T.H.’s dependency on C.G., and his close relationship with J.H., put him in a difficult position testifying at J.H.’s trial. This is especially so when, right from the moment J.N’s allegations came to light, C.G. took the position that there was no merit to any of the allegations and J.N. was just trying to start trouble. This became the family wisdom in the G. household and this underlying assumption informed T.H.’s interpretation of events and the way in which he gave evidence. T.H. does not believe J.N.’s accusations, and he is firmly of the view that J.H. would not do what he is accused of.

[75] T.H.’s evidence is also suspect for another reason. He claimed to remember with certainty that specific things, which at the time would have been ordinary and unremarkable, happened or did not happen on the afternoon and evening when he and the N. children were with J.H. at Andrew Haydon Park and then at the W. home. At the same time, he could not remember details about other events, such as the arrest of J.H. which, due to their significance, he would be much more likely to remember.

[76] For these reasons, I assign minimal weight to T.H.’s evidence.

C.G.

[77] I assign no weight to the evidence of C.G. She made it very clear that, from the start, she was convinced that J.N. was simply a trouble-maker who was making up allegations against her son.

[78] C.G. places herself above the law. She ignored the court order excluding witnesses and potential witnesses. She came into the courtroom during the testimony of J.N. and only left when advised to do so by the court constable. Despite this instruction, she again came into the courtroom during the testimony of L.N. and remained in the courtroom for an even longer period. She claimed to have come to court, not only to support her son, but also to hear what the witnesses were saying. She was curious – and that curiosity trumped any respect she had for the court order excluding potential witnesses.

[79] When testifying, C.G. tried to craft her answers as carefully as she could to help the defence. In fact, she stated that she did not want to incriminate her son, and it was obvious that this was her primary concern as she testified. She responded to many innocuous questions with a standard, “I do not remember”, because she was afraid of a trap being set by Crown counsel. When pressed, she often reneged and acknowledged that she did remember things. Frequently, she got mixed up and confused. Frequently, she changed her evidence. In fact, on the morning of the second day of her evidence, she resiled from much of what she had said the previous afternoon. She claimed not to remember significant events while, at the same time, purporting to remember what, at the time, would have been insignificant matters. She denied ever having asked her son about the allegations against him – something that is highly unlikely considering her curiosity regarding what T.H. and J.N. had been discussing in her kitchen, her curiosity about the evidence at trial, and, as she herself labelled it, her nosy nature.

[80] The impression with which I was left after having heard from T. H., C.G., and J.H. was that the three had concocted their evidence to present a solid front against the accusations of J.N.

J.N.

[81] L.N. described how J.N., since she was a young child, has had difficulty communicating verbally. She struggled to put her thoughts into words and sentences. She required extra time to express herself and to say what she needed to say in an orderly, comprehensible, fashion. J.N.’s challenges in this regard were evident both in her statement to Detective Giampaolo, and in her testimony at the preliminary inquiry and at trial. She mixed up words (such as oral and anal), she did not understand the meaning of some of the sexual jargon that she used (such as 69), she became confused as to the order of events (as many young persons do), and she struggled to respond to the peppering of questions put to her by Defence counsel (something any witness would have struggled with). But despite her difficulties, J.N. was able to recall the details of many events – some significant, some mundane, of what was said, and of how she was feeling. Despite some differences in her descriptions of incidents over time, on the whole, and subject to one significant discrepancy, the descriptions have been consistent.

[82] J.N. took no pleasure in testifying to things that could harm J.H. She was parsimonious in any criticism of his actions and words. She seemed particularly troubled that her allegations have resulted in the G. and N. families not speaking to each other, and she genuinely mourns the happy times she experienced in the summer of 2012. Her testimony was not the testimony of someone “making trouble” as alleged by the G./H. family. It is not the testimony of someone out for revenge or lashing out after a betrayal. There is no doubt that J.N. felt betrayed by J.H. in a number of respects. He had passed on information to her parents which she had thought would remain confidential. He had been in a romantic and sexual relationship with S.W. when he had claimed that they were just business partners and when she thought he was in a romantic relationship with her. But a sense of betrayal was not the emotional response that appeared most apparent during J.N.’s testimony. Instead, J.N. presented as a profoundly sad teenager who had been in love with J.H., someone who had lavished attention on her and had made her feel wanted and special. She had trusted him with her deepest thoughts and emotions, and she experienced the absence of someone special in her life as a real loss.

[83] At both the preliminary inquiry, and at trial, J.N. was cross-examined relentlessly about whether it was Mud Lake or Andrew Haydon Park where the first and last incidents occurred, and the layout, topography, and vegetation at each site. This was largely unnecessary because J.N. did not say during her initial statement to the police that anything untoward had happened at Mud Lake. It was Detective Giampaolo who had misunderstood what J.N. was saying in regard to where the first incident occurred and who assumed that it had been at Mud Lake, not Andrew Haydon Park. J.N. had tried unsuccessfully to correct Detective Giampaolo during their interview. The mix-up was the focus of much attention during J.N.’s cross-examination at the preliminary inquiry and, it would appear at times, led to confusion on J.N.’s part. At trial, J.N. was very clear that the first and last incidents of a sexual nature that she described occurred at Andrew Haydon Park.

[84] J.N. was also cross-examined at length, both at the preliminary inquiry and at trial, regarding the order in which the various incidents occurred. The questions were confusing and complex and succeeded in getting J.N. completely mixed up in providing her evidence. At trial, Defence counsel quoted lengthy passages from his cross-examination of J.N. at the preliminary inquiry where he had, in turn, quoted lengthy passages from her interview with Detective Giampaolo. It was impossible for J.N. to follow what was being asked and to respond in a clear and consistent fashion. I assign very little weight to any discrepancies in the version of events described by J.N. between the preliminary inquiry and the trial due to the convoluted format of the questions – questions that, had I been the witness, I would not have been able to understand or properly respond to.

[85] Unfortunately, in summarizing what J.N. had told her, Detective Giampaolo also made other errors that, at the time, J.N. did not specifically challenge but did not specifically agree with either, one example being Detective Giampaolo saying that J.N. gave J.H. oral sex in S.W.’s bedroom – something J.N. had specifically said she had not done. Defence counsel attempted to impeach J.N. for allegedly giving different accounts of the various incidents; however, I find that much of the confusion was created by Detective Giampaolo and J.N.’s reluctance to correct her during their first interview, and by the convoluted cross-examination both at the preliminary inquiry and at trial. Subject to one significant exception, it was not a question of J.N. changing her story over time.

[86] The one issue where there clearly was a discrepancy in J.N.’s evidence was whether during the Cedarview incident she had given J.H. oral sex. In her initial statement to Detective Giampaolo, she stated that this had occurred. She reiterated this during her examination-in-chief at trial but did not mention it when cross-examined on the incident. On re-examination, she said that she did not think that she had given J.H. oral sex during this incident.

[87] In summary, I found J.N. to be a credible witness who was trying her best to honestly recount what had happened during the summer of 2012. Without question, she became confused at times and lost her focus. She could not always express herself clearly. Understandably, she wilted after three days of cross-examination, much of it convoluted and confusing. The chronology she provided had some gaps and uncertainties. But the crux of J.N.’s evidence about the sexual relationship between herself and J.H. was clear and unwavering, and that evidence fit logically into the whole picture presented by the electronic communications between herself and J.H., the observations of S.W. and L.N., and the limited admissions made by J.H. after the allegations surfaced.

H.W.

[88] In these Reasons, I have not summarized H.W.’s evidence regarding her relationship and sexual encounters with J.H. I am not doing so because it is only in one very limited respect that I am taking into account the evidence concerning H.W. It is uncontroverted that, in 2006, H.W. told a school counsellor that, between 2002 and 2004, when she was 12 or 13 years of age, she and J.H. had, unbeknownst to S.W., exchanged many text and email communications and that, on one occasion, J.H. had kissed her on the mouth. The school counsellor had contacted the police and an investigation ensued. H.W. had not wanted matters to progress to that stage and had not cooperated with the investigation. As a result, no criminal charges were ever laid against J.H. in regard to this incident.

[89] When S.W. found out about the allegations, she confronted J.H. He admitted to her that he and H.W. had been communicating with each other via MSN or email, that he had said inappropriate things to H.W., that he had got swept up in his relationship with H.W., and that he had done things that he should not have done. He acknowledged having kissed her on one occasion, but then immediately stopping because he realized that this had been wrong. S.W. broke up with J.H. at that time. When testifying at trial, J.H. confirmed this overview of events.

[90] J.H. acknowledged that he had been devastated when S.W. ended their romantic relationship. She was the love of his life. He worked hard at regaining her trust, and he committed to himself that he would never let anything like that happen again. Despite that, he ended up in a similar situation with J.N. in the sense of his having countless, private, communications with her by text, messaging, and phone, and keeping those secret from S.W. and J.N.’s parents. Despite what he alleged were J.N.’s inappropriate physical advances towards him (rather than the sexual contact she alleged), he never once told S.W. about the advances or sought her help or guidance in extricating himself from the situation. At the same time, he professed his ongoing love for S.W. in 2012, and his devastation when she, once again, ended their romantic relationship.

[91] It is in this limited way that I am making use of the similar fact evidence relating to H.W. It assists me in assessing the credibility of J.H. when he explains why he did not tell S.W. or L.N. about his private communications with J.N. or about her physically inappropriate behaviour with him. I am not relying on the similar fact evidence in any respect to bolster the credibility of J.N. I am not relying on it to consider if it is plausible that the same type of relationship that J.H. established with both, similarly situated, girls would have been sexual in one and purely innocent in the other. The reason why I am not relying on the testimony of H.W., in this broader sense, to decide whether J.H. had a sexual relationship with J.N. is not because I do not believe H.W.: I accept her evidence in its entirety. But the reality is that I do not need to rely on her evidence to conclude that the incidents described by J.N. occurred.

J.H.

[92] J.H. testified in a way that did not instill confidence that he was speaking the truth. He was evasive, reluctant to answer the simplest of questions, and non-responsive to others. He refused to agree with Crown counsel about matters to which he had earlier attested or which were apparent in exhibits. He put forward a version of events which, simply put, was beyond belief.

[93] He presented as someone who had a high opinion of his ability to outsmart others, who answered questions as if they did not warrant being asked, who often had a smirk or smile on his face when he answered, and who was constantly juggling what he was saying to make sure he was not incriminating himself in any fashion. Many of his answers belied common sense and logic but, nevertheless, he stuck to them and glibly denied their perversity. In so many ways, his evidence simply did not make any sense.

[94] He claimed not to be romantically or sexually interested in J.N., and not to have intended to ever give her that impression; however, the nature, frequency, and timing of the messages he exchanged with her present another story. He offered no reasonable explanation for this disconnect.

[95] He claimed that it was J.N. who on a number of occasions became inappropriately physical with him, that he had told her repeatedly not to do that, and that he thought that she had a crush on him; nevertheless, he never raised this issue with J.N.’s parents or with S.W. Additionally, not only did he continue to see J.N. on her own, but also, he sought out that contact.

[96] J.H. claimed that S.W. was the love of his life, that he had been devastated when she had kicked him out of her home after learning of H.W.’s allegations, that he had committed to himself not to get into that type of situation again, and that he had worked hard to regain S.W.’s trust. Despite that, when, according to him, J.N. wanted to be emotionally and physically close to him, he did not distance himself from the situation, he did not seek the help of J.N.’s parents or S.W. to extricate himself from this pressure, and he kept J.N.’s alleged advances toward him a secret.

[97] According to J.H., he had acted inappropriately with H.W. by communicating with her by MSN and emails, without her mother being aware, and by kissing her on the lips on one occasion when she was sad and he was sympathizing with her. He spoke of having made a horrific mistake through his inappropriate behaviour. J.H. could not explain why, if he had considered these private communications with H.W. to have been so inappropriate, he had thought it acceptable to have private communications with J.N. at all hours of the day and night by texts, phone calls, and other forms of messaging, without either the N.s or S.W. being aware of them.

[98] J.H. acknowledged that he realized that J.N. had a crush on him. Despite this, he did nothing to quell her feelings. On the contrary, he fanned the flames through the attention he gave her and the nature of their communications. For example, J.H. acknowledged that, on the evening of J.N.’s second sleep-over, S.W. told him that it was inappropriate for J.N. to be cuddling up to him with her hand in his while they were watching a movie, and he undertook to speak to J.N. Despite that, shortly thereafter, he was lying on the floor with J.N., and her head was on his chest. He claimed that he was lying on the floor beside her to deliver the message that she could not be so physical with him, but he provided no credible explanation as to why he needed to do that. What he described made no sense.

[99] S.W.’s evidence as to what J.H. said to her after J.N.’s accusations came to light was not challenged on cross-examination. She was very specific as to what J.H. told her in regard to the incidents in S.W.’s bedroom, in the laundry room, and in the field. Although S.W.’s description of her conversation with J.H. was not challenged under cross-examination, when he testified, J.H. denied that he had said some of the things attributed to him by S.W., namely, that J.N. had tried to kiss him on the lips, that she had lain on the bed in S.W.’s room and had asked him to touch her, and that, when she was lying on the bed, she had asked him to lie on top of her. In other words, he stopped short of attributing any sexual nature to the physical contact that had taken place between himself and J.N. S.W.’s evidence of what J.H. told her in this regard dovetails closely with J.N.’s description of the incidents in terms of time, place, and, to a certain extent, the physical positions of herself and J.H. during the incidents. The two major differences are that, with J.N.’s description, the activities were clearly sexual and both participants were willing partners, whereas, with J.H.’s description, he was not a willing participant and the activities could be seen as not being sexual. J.H.’s portrayal of the incidents creates a disconnect with the balance of the evidence concerning context and communications. It is J.N.’s evidence that produces a consistent whole.

[100] In short, J.H. agreed with the unfolding of events as described by other witnesses or as made apparent in the documentary evidence – but he did so only up to the point where his behaviour might cross the line into criminality. At that point, either he denied that the sexual incident occurred (which was the case in regard to the offences dealt with in counts one to three, and thirteen to fifteen), or he offered another version of events which branded J.N. as the physical aggressor and depicted him as simply trying to defend himself and get her to stop being physical with him (which was the case in regard to the balance of the alleged offences).

[101] I note two things. First, when J.N. was cross-examined, it was never put to her that the incidents that she described never took place. Nor was J.H.’s version of events ever put to her. She was cross-examined thoroughly in regard to time, place, and chronology, but not in regard to the substance of the allegations.

[102] Second, J.H. chose to testify last – as was his right. He had the opportunity to hear and see all of the evidence tendered by the Crown and the Defence before he gave his account. What he did, in my view, was to fit his evidence as best he could into the framework of evidence already received up to the point where an absolute denial was required to avoid criminal liability.

[103] I do not believe J.H.’s denials nor do I accept his version of events. His evidence does not raise a reasonable doubt about any element of any of the offences charged. This leaves me to consider whether, based on the evidence that I do accept, I have been convinced beyond a reasonable doubt of all of the elements of each offence charged.

Conclusion

[104] Based on all of the evidence, but particularly that of J.N., L.N., and S.W., when considered along with the documentary evidence and the limited admissions made by J.H., I am satisfied beyond a reasonable doubt that Crown counsel has proven all offences beyond a reasonable doubt.

[105] To clarify my findings in regard to the incident in S.W.’s bedroom, I find that J.H. performed oral sex on J.N. and she reciprocated by masturbating him, but he did not ejaculate.

[106] In regard to the incident in the field near Cedarview, I find that the two fondled each other and J.H. touched his penis to J.N.’s anal area, skin to skin, but there was no penetration and no ejaculation. I am not persuaded beyond a reasonable doubt that J.N. performed oral sex on J.H. on that occasion.

[107] In regard to the last three counts, I find that, on one occasion when J.N., S.N.2, and L.N.2 were at Andrew Haydon Park (the day the boys caught a turtle), J.N. and J.H. went into a wooded and secluded spot where J.H. fondled J.N. and she performed oral sex on J.H. and then masturbated him. He did not ejaculate. The exact date of this incident has not been established. It was not August 16th. It may have been August 24th or some later date. But I am satisfied beyond a reasonable doubt that the incident occurred as described by J.N.

[108] A finding of guilt shall be entered for all counts on the indictment.

Aitken J.

Released: June 25, 2015

CITATION: R. v. H., 2015 ONSC 4054

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

-and-

J.J.H.

Accused

REASONS FOR JUDGMENT

Aitken J.

Released: June 25, 2015