COURT FILE NO.: CR-14-10000517-0000
DATE: 20150918
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Rita Maxwell for the Crown
- and -
J.N.
Louis Strezos and Shannon O’Connor for Mr. J.N.
HEARD: June 15 – 19, 2015.
REASONS FOR JUDGMENT
CORRICK J. (orally)
Introduction
[1] Mr. J.N. was the G. family’s hairdresser. Every six weeks or so, he went to the G. family home to colour Ms. K.G.’s hair. While he was at their house, Mr. J.N. would also, from time to time, cut Mr. G.’s hair and the hair of their two sons, S. and M. This went on for about one year from the fall of 2012 to October 21, 2013, when M.G. told his mother that he did not want Mr. J.N. to come to their house any longer, and disclosed that Mr. J.N. had touched him inappropriately.
[2] As a result of the allegations made by M., Mr. J.N. is charged in an eleven-count indictment with a variety of sexual offences. Mr. J.N. was tried by me without a jury.
The Indictment
[3] The counts in the indictment relate to four separate time periods as follows:
Counts 1 and 2: between December 1 and 25, 2012 – sexual assault and sexual interference
Counts 3 and 4: between December 26, 2012 and August 5, 2013 – sexual assault and sexual interference
Counts 5, 6 and 7: August 6, 2013 – sexual assault, sexual interference and invitation to sexual touching
Counts 8, 9, 10 and 11: October 21, 2013 – sexual assault, sexual interference, invitation to sexual touching and exposure for a sexual purpose
[4] Ms. Maxwell, on behalf of the Crown, acknowledged that there was no evidence to support findings of guilt on counts 1 and 2. Those counts are therefore dismissed.
Overview
[5] It is unclear when Mr. J.N. first cut M.’s hair and how many times he cut it. M.’s mother, A.K.G., testified that she began using the services of Mr. J.N. in the fall of 2012. He came to her home every five or six weeks to colour her hair. Mr. J.N. coloured her hair the first few times in the kitchen on the main floor, but after that, all of the hair dressing was done in the basement. She testified that Mr. J.N. did not cut M.’s hair every time he came to the house.
[6] M. was born on […], 2002. He was 10 years old at the time of most of the events in question, and was two months shy of his thirteenth birthday when he testified before me.
[7] M. could not remember exactly when Mr. J.N. cut his hair the first time, but thought it was when it was cold outside. He did not know how many times Mr. J.N. cut his hair, maybe six or seven times. M. testified that nothing unusual happened during the first three haircuts, but following that, Mr. J.N. got in M.’s words, “weirder and weirder.” M. described an escalating series of incidents that happened during his haircuts. According to M., it began with Mr. J.N. hugging him, then kissing him, then touching his bum, then placing M.’s hand over his clothed penis and placing his hand over M.’s clothed penis. It culminated on October 21, 2013 when Mr. J.N. exposed his penis and attempted to have M. touch it. M. used the adjective “weird” to describe these acts of inappropriate touching.
[8] It was an agreed fact that on October 28, 2013, Mr. J.N. gave an exculpatory statement to the police. The police interview of Mr. J.N. was not recorded because the video recording equipment malfunctioned.
[9] A videotaped statement M. gave to the police on October 21, 2013 was admitted at trial on consent, pursuant to s. 715.1 of the Criminal Code. M. adopted its contents while testifying. A lengthy examination in-chief, a cross-examination and re-examination followed. I appreciate that the video statement, together with M.’s viva voce evidence-in-chief, comprises the whole of M.’s evidence-in-chief. However, when describing M.’s evidence-in-chief, I refer to what M. said in his video statement as distinct from what he said during his viva voce evidence. This is simply for ease of referring to particular portions of M.’s evidence-in-chief. I have not treated M.’s video statement as a prior statement.
[10] The remaining counts in the indictment fall into three discrete time periods – between December 26, 2012 and August 5, 2013; August 6, 2013; and October 21, 2013. I am going to review the evidence related to each time period. The events of October 21, 2013 precipitated the involvement of the police, so I begin with the evidence related to that day. The defence called no evidence.
October 21, 2013
[11] On October 21, 2013, at approximately 5:30 p.m., Mr. J.N. cut M.’s hair in the basement after he had coloured Ms. K.G.’s hair and cut S.’s hair. In his video statement M. told police that before Mr. J.N. started cutting his hair that day, he hugged M., kissed him on the upper lip, grabbed his butt, and touched his privates, (M.’s word for penis) over his pants. Ms. K.G. came downstairs, turned on the television, and then went back upstairs. Once she was gone, Mr. J.N. exposed his penis, and tried to make M. touch it. M. resisted. Mr. J.N. continued cutting M.’s hair and exposed his penis once more and tried to make M. touch it. M. resisted again. When he finished cutting M.’s hair, Mr. J.N. took a picture of M. on his tablet and told M. not to tell anybody. He also asked M. where he went after school and asked M. to hang out with him.
[12] M. told police that “he got freaked out” when Mr. J.N. suggested that he go into the bathroom in the basement to check his hair. M. ran up the stairs and told his mother that he did not want her to ask Mr. J.N. to come to the house again, and he told her what had happened.
[13] In his viva voce evidence-in-chief, M. testified that he was not sure if Mr. J.N. hugged him that day, but then went on to describe how after his mother left the basement, Mr. J.N. hugged him and grabbed his butt.
[14] M. also testified that he was not sure if Mr. J.N. had touched his privates that day, but he was sure that Mr. J.N. had grabbed his hand and put it on Mr. J.N.’s penis over his pants.
[15] Contrary to his video statement in which he said that Mr. J.N. had not exposed himself before October 21, M. testified that he had also exposed himself in August 2013.
[16] At the outset of his cross-examination, M. testified that that there was a small chance that Mr. J.N. had not exposed himself in August but he was pretty sure it had happened. Toward the end of the cross-examination, M. admitted that maybe Mr. J.N. had not exposed himself in August, although he was sure he had in October.
[17] M. also testified in cross-examination that maybe Mr. J.N. did not touch his privates on October 21, but he was sure that Mr. J.N. had made M. touch his penis over his clothing.
[18] Ms. K.G. testified that she spoke with Mr. J.N. in the basement before he cut M.’s hair that day, but left before the haircut was started. She did not recall returning to the basement to turn on the television. Ten minutes after she left the basement, M. came upstairs and said he wanted to talk to her. He was very stressed. He had an awkward expression on his face. His eyes were wide open and he pushed her from the kitchen into the living room. He told her that he did not want her to ask Mr. J.N. to come to their house anymore.
[19] Following her discussion with M., she went to the basement and asked Mr. J.N. to show her the photograph he took of M. Mr. J.N. took out his cell phone to show her photographs. He had previously taken photographs of her on his cell phone. She told him that she knew he had another device and she demanded to see it. She testified that he took his tablet out of his bag and showed her M.’s photograph.
[20] R.G., M.’s father, testified that he had rushed home from work that evening to get his hair cut. When he got home, his wife spoke to him. As a result of their conversation, he spoke to M. According to Mr. G., M. was very drawn in at the time. It was difficult to pry words out of him. Mr. G. eventually confronted Mr. J.N. with M.’s allegations. Mr. J.N. denied the allegations.
[21] Mr. G. called the police. Mr. J.N. waited in the living room for the police to arrive.
August 6, 2013
[22] In the morning of August 6, 2013, Mr. J.N. came to the G. home in the morning to do Ms. K.G.’s hair. The G. family was getting ready to leave for Bosnia for a vacation later that day.
[23] In his video statement, M. said that on August 6, he and S. were in his parents’ bedroom, lying on the bed, watching television, when Mr. J.N. arrived at their home. Mr. J.N. came into the bedroom, stood beside M., grabbed M.’s hand and put it on his privates over his pants. S. was beside M. watching television when this occurred.
[24] During his viva voce evidence-in-chief, M. testified that when Mr. J.N. came into the bedroom, he not only put M.’s hand on his privates, but he also touched M.’s privates. This was the only time, according to M., that Mr. J.N. touched his privates.
[25] M. conceded in cross-examination that he may be mistaken about Mr. J.N. touching him, but was not mistaken that Mr. J.N. made M. touch him.
[26] During cross-examination, M. was shown an exhibit from the preliminary hearing, which was a photograph of his parents’ bedroom on which he had marked where he, S. and Mr. J.N. were positioned in the bedroom on August 6. M. had marked Mr. J.N. as standing next to the side of the bed that M. was lying on. M. testified that this was an accurate depiction.
[27] S.G., M.’s ten-year-old brother, testified that he recalled a day when he and M. were lying on the bed watching television in his parents’ bedroom when Mr. J.N. came in. He did not know what day it was. Contrary to M.’s recollection, S. recalled Mr. J.N. standing beside the bed next to him, while M. was lying closer to the center of the bed. S. recalled Mr. J.N. asking them what they were watching and how school was. According to S., the incident was not memorable.
[28] Mr. J.N. cut M.’s hair that morning. In his video statement, M. said that he could not remember what happened during the hair cut. He testified however, that during the hair cut, Mr. J.N. took M.’s hand and put it on Mr. J.N.’s privates over his pants. M. also testified that when his haircut was finished, Mr. J.N. exposed his penis and tried to make M. touch it. He also asked M. when they could hang out.
Between December 26, 2012 and August 5, 2013
[29] Ms. K.G. testified that she began using the services of Mr. J.N. in the fall of 2012. She could not recall when Mr. J.N. began cutting M.’s hair. Although she had her hair done upstairs in the kitchen the first few times, she testified that Mr. J.N. always cut M.’s hair in the basement.
[30] In his video statement, M. indicated that nothing untoward occurred the first three or four times he saw Mr. J.N., but that Mr. J.N. started to act "weird" after that. Mr. J.N. started hugging M. the third time he saw him. The next time, he kissed M. M. said that Mr. J.N. put his hand on Mr. J.N.’s privates a "bunch of times" before school was out for the summer.
[31] In his viva voce evidence, M. testified that he saw Mr. J.N. five or six times between December 26, 2012 and August 5, 2013. During that period Mr. J.N. hugged M., kissed him twice, once on the cheek and once on the lips, grabbed M.’s buttocks, and grabbed M.’s hand and put it on his privates. Mr. J.N. told M. he was beautiful three times during that period and he once told him that his hair was beautiful.
Positions of the Parties
[32] Both counsel provided the court with written submissions. In addition, they made brief oral submissions.
[33] Mr. Strezos argued that M. is not a credible or reliable witness, and that the court cannot rely on his evidence to find that the Crown has proven the charges beyond a reasonable doubt. Mr. Strezos pointed to a number of internal inconsistencies in M.’s evidence and the contradictory evidence of S.G. in support of his submission.
[34] Ms. Maxwell submitted that the inconsistencies in M.’s evidence are the product of his age and maturity and are not significant when his evidence as a whole is assessed with that in mind. Ms. Maxwell argued that the core of M.’s allegations is intact and that the offences committed on October 21, 2013 and between December 26, 2012 and August 5, 2013 have been proven beyond a reasonable doubt.
Analysis
General Principles
[35] My analysis of the evidence in this trial is governed by some fundamental principles of criminal law that apply to all criminal trials.
[36] The first is that the Crown must prove beyond a reasonable doubt that Mr. J.N. is guilty of the offences charged. This standard is a high one. It is not enough for me to believe that Mr. J.N. is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.
[37] The second is the presumption of innocence. This presumption stays with Mr. J.N. throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged. The presumption of innocence also means that he does not have to testify, present evidence, or prove anything in this case. Mr. J.N. does not have to prove that he is innocent of these crimes.
[38] I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.
Evidence of Children
[39] I must also consider that special considerations apply when I consider the evidence of M. and S.G., given that they have testified about things that happened when they were 10 and 8 years old. Courts have adopted a common sense approach to assessing the evidence of children, and have recognized that their evidence cannot be assessed on the same standard as the evidence of an adult witness. I must assess their evidence having regard to their age, mental development, understanding and ability to communicate both at the time that the events took place and when they gave their evidence in court.
[40] This does not mean, however, that M.’s and S.’s evidence is not subject to the same standard of proof as the evidence of an adult witness. Although the Crown’s case depends almost entirely on the evidence of a child, it remains the obligation of the Crown to prove the offences alleged against Mr. J.N. beyond a reasonable doubt.
M.’s Evidence
[41] Mr. Strezos pointed out what he submitted were inconsistencies and gaps in M.’s evidence, which he submitted renders it unreliable. He also submitted that the allegations made by M. evolved over time, thereby undermining the reliability of M.’s evidence.
[42] For instance, he argued that M. failed to identify a specific instance between December 26, 2012 and August 5, 2013 when Mr. J.N. touched his buttocks, although he testified that such touching occurred. However, I find that M. did identify specific instances. He testified that on the fifth visit, Mr. J.N. started to touch his buttocks when he was giving him a hug. Later, he said that on the third or fourth visit, Mr. J.N. gave him a normal hug and the time after that he touched his buttocks. According to M., this happened before the family went to Bosnia in August 2013.
[43] Mr. Strezos also pointed out that M. could not remember if Mr. J.N. grabbed his buttocks at the upstairs door. In my view, the fact that M. could not remember this is inconsequential.
[44] Mr. Strezos relied on a number of internal inconsistencies in M.’s evidence to argue that M.’s evidence could not be relied upon by the court. For example, M. alleged in his video statement that when Mr. J.N. exposed himself on October 21, 2013, he said something like, "it’s big, someday yours will be big too." M. testified however, that Mr. J.N. had said nothing when he exposed himself. M. said in his video statement, in response to a question about how Mr. J.N. tried to make M. touch his exposed penis, "I don’t know. Like before he would he would grab my hand and put it on and say stuff like it’s big. Yours is gonna be like that too." M. also said that Mr. J.N. had said the same thing that night. He did not say that Mr. J.N. said this when he exposed himself. In his viva voce evidence, M. testified that he did not think Mr. J.N. said those words on October 21, but that he had said them at different times when he would make M. touch his clothed penis.
[45] Similarly, M. testified in chief that after he resisted Mr. J.N.’s first attempt to have him touch his exposed penis on October 21, Mr. J.N. said something like, "I will try again later." He testified that he did not remember Mr. J.N.’s precise words, but remembered that he had said something after M. refused to touch him. Mr. Strezos submitted that M. alleged for the first time at trial that Mr. J.N. had said, "I will try again later." At the preliminary inquiry M. testified that Mr. J.N. had said nothing during the exposure.
[46] However, in his video statement, M. alleged that Mr. J.N. did say something after he tried to have M. touch his penis. At the beginning of his video statement he was asked what had happened that day. M. described the incident this way, "… he unzipped his pants, and showed me his privates and said like like you could touch or started grabbing my arm to put it on it and but I was like pulling my arm back. He’s like okay and then he stopped and started cutting my hair again." M. described the incident later in the video statement when he said, "… he tried to make me put um touch it but I grabbed but I tried to not let him, and he’s like okay and then started cutting my hair again."
[47] Mr. Strezos also suggested that M.’s allegations evolved. For instance, Mr. Strezos argued that during his viva voce evidence-in-chief on the first day of the trial, M. testified that Mr. J.N. took M.’s hand and placed it over Mr. J.N.’s clothed penis once or twice. On the second day of his examination-in-chief, M. testified that it happened five or six times.
[48] My recollection of M.’s evidence on this point is different. In his video statement, M. said that this had happened "a bunch of times." In his viva voce evidence on the first day of trial, he said it happened four or five times. On the second day of trial, he said it happened five or six times. I do not consider this to be a significant evolution in M.’s allegations.
[49] I recognize that some of M.’s evidence at trial was internally inconsistent, particularly about which incidents occurred on which day. For example, in his video statement, he said that Mr. J.N. touched his privates over his pants when he hugged M. on October 21, 2013. He did not say that Mr. J.N. had made him touch Mr. J.N.’s privates over his pants. During his viva voce evidence-in-chief, M. testified that he did not think that Mr. J.N. touched his privates that day, but that he had made M. touch his clothed privates that day. There are other examples, such as where and when Mr. J.N. kissed him. I have not noted them all, although I have considered them.
[50] To the extent that there are inconsistencies in M.’s evidence, I do not consider them significant given M.’s age, the time that has passed between the events and M.’s recounting of them at the trial, and the fact that these incidents occurred on a number of different days over a period of a year. It is not surprising that there are internal inconsistencies in his evidence given the fact that his evidence-in-chief comprised a statement he gave to the police on October 21, 2013, and lengthy viva voce evidence given almost two years later.
[51] M.’s evidence regarding the events of August 6, 2013 was not only internally inconsistent; it was directly contradicted by S.’s evidence.
[52] Dealing first with the events that M. said occurred in his parents’ bedroom. M. testified that Mr. J.N. stood or kneeled next to the bed on the side where he was lying. Mr. J.N. reached over and touched M.’s privates and grabbed M.’s hand and placed it over Mr. J.N.’s privates. This occurred in the presence of S., who M. said was watching television. In his video statement, M. did not say that Mr. J.N. had touched his privates on August 6.
[53] S. testified that Mr. J.N. stood next to the side of the bed he was lying on and that M. was in the middle of the bed. He testified that he and M. always sat in the same place when they were in their parents’ room watching television. According to S., nothing memorable happened in the bedroom that morning. Mr. J.N. came in the room, asked them what they were watching and how school was. S. testified that he paid attention to Mr. J.N. that morning because Mr. J.N. was talking to him and he usually pays attention to people who are speaking to him.
[54] Dealing next with the events that happened in the basement on August 6. M. alleged for the first time during his viva voce evidence that Mr. J.N. exposed himself that day. This is contrary to his video statement in which he said that Mr. J.N. had never exposed himself prior to October 21. M. also testified that he did not think that anything happened during his haircut on August 6, although he found it hard to remember that far back. M. conceded in cross-examination that he may be mistaken that Mr. J.N. exposed himself on August 6.
[55] I am unable to resolve the contradictory evidence of M. and S. about what happened in the bedroom on the morning of August 6, 2013. Given their conflicting evidence, as well as the uncertainty with which M. testified about what happened in the basement on August 6, I am unable to find that the Crown has proven the offences alleged on August 6 beyond a reasonable doubt. I therefore find Mr. J.N. not guilty of counts 5, 6, and 7.
[56] Mr. Strezos argued that the unreliability and incredibility of M.’s evidence regarding the events of August 6 permeates the entirety of his evidence, rendering it unsafe for this court to rely on it to find Mr. J.N. guilty of any of the charges. I do not agree. I am entitled to accept some, all or none of the evidence of a witness.
[57] Mr. Strezos also argued that a further basis for finding that M. is an unreliable witness is M.’s admission that he has memories of events that did not occur, and that he sometimes guesses to try to fill in the gaps in events.
[58] The issue for determination is whether I am satisfied beyond a reasonable doubt, on the basis of the whole of the evidence that I accept that Mr. J.N. committed the offences alleged between December 26, 2012 and August 5, 2013 and on October 21, 2013.
[59] I have assessed the evidence of M. in the context of the principles applicable to the evidence of children that I earlier articulated. I have considered the many inconsistencies in M.’s evidence. In my view, the inconsistencies, to the extent that they are significant, are the product of M.’s age and level of maturity, the time that has elapsed since the events in question occurred and the period of time over which the events occurred. They are not the product of a fabricated story.
[60] I was impressed with M. as a witness. He was responsive to the questions asked of him and readily admitted when he could be mistaken. He did not appear vindictive or to be acting out of any animosity toward Mr. J.N., but seemed to be doing his best to recount the details of events that occurred over many months nearly two years ago. He had difficulty remembering the date upon which each of the acts alleged was committed. He admitted guessing to fill in the blanks, but the core of his allegations remained intact.
[61] M.’s description of Mr. J.N.’s conduct towards him, escalating in seriousness over the course of five or six visits, remained consistent. I accept M.’s evidence that after the first three visits, Mr. J.N.’s behaviour got, as M. described it, "weirder and weirder." I find that between the period of December 26, 2012 and August 5, 2013, Mr. J.N. hugged and kissed M. and touched his buttocks. This behaviour was followed by Mr. J.N. taking M.’s hand and placing it over his clothed penis and telling M. that "it was big and that his would be big like that too." I am unable to find that Mr. J.N. touched M.’s penis over his clothes during this time period given M.’s evidence that the only time this happened was in his parents’ bedroom on August 6, 2013.
[62] Finally, I find that on October 21, 2013, Mr. J.N. hugged M., grabbed his buttocks, and twice exposed his penis to M. and tried to have M. touch it. He also took a photograph of M. that day and told M. not to tell anyone.
[63] I have considered the fact that M. described these allegations in some detail. He testified that Mr. J.N. grabbed his buttocks while he was hugging M. He described how Mr. J.N. would grab his arm and place his hand over his clothed penis. M. would leave his hand there for a brief time and then move it back.
[64] In his video statement to the police, M. described the events of October 21 in more detail, which is understandable given that he gave this statement to police only three hours after the events had occurred. He described Mr. J.N. looking to see if M.’s mother had left the basement before exposing himself to M. M. demonstrated a number of times during his video statement how he pulled his arm back close to his body to resist touching Mr. J.N.’s exposed penis. He described Mr. J.N.’s penis to police.
[65] Despite M.’s affirmative answer to Mr. Strezos’ question that sometimes he has memories of events that maybe did not happen, M. did not recant any of these allegations.
[66] Although the fact that M. disclosed the allegations immediately after his hair cut on October 21 is not evidence confirming M.’s allegations, I have considered the spontaneous nature of M.’s complaint, and his demeanour at the time, as described by Ms. K.G., as supportive of M.’s credibility.
[67] I do not accept the position advanced by the defence that there was little opportunity for Mr. J.N. to commit these offences. M.’s evidence that he was alone in the basement with Mr. J.N. for the most part during his haircuts was confirmed by his brother and mother.
[68] The fact that I am not satisfied beyond a reasonable doubt that Mr. J.N. committed the offences on August 6 due to M.’s uncertainty about what transpired that day and S.’s contradictory evidence does not lead me to reject M.’s evidence in its entirety. As I have already said, I do not believe that M. misconstrued Mr. J.N.’s conduct, or that he has fabricated a story about it.
Conclusion
[69] Accordingly, on the basis of the evidence that I do accept, I am satisfied beyond a reasonable doubt that Mr. J.N. is guilty of counts #3 and 4, in that he sexually assaulted M.G. and touched M.G. for a sexual purpose between December 26, 2012 and August 5, 2013, by grabbing M.’s buttocks.
[70] I am also satisfied beyond a reasonable doubt that Mr. J.N. is guilty of counts #8, 9, 10 and 11, in that he sexually assaulted M.G. and touched M.G. for a sexual purpose on October 21, 2013 by grabbing M.’s buttocks, he placed M.’s hands over his clothed penis, and he exposed his penis and attempted to have M. touch it.
[71] In summary, I find Mr. J.N. not guilty of counts #1, 2, 5, 6, and 7. I find him guilty of counts #3, 4, 8, 9, 10 and 11.
Corrick J.
Released: September 18, 2015
COURT FILE NO.: CR-14-10000517-0000
DATE: 20150918
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.N.
REASONS FOR JUDGMENT
Corrick J.
Released: September 18, 2015