R. v. N.F., 2016 ONSC 1280

COURT FILE NO.: 14-SA5033

DATE: 2016-02-25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

N.F.

Defendant

Julian Daller, for the Crown

Biagio Del Greco, for the Defendant.

HEARD AT OTTAWA: February 16-19, 2016

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR ACCUSED IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO SECTION 486.4 and 486.5 OF THE CRIMINAL CODE OF CANADA.

Ray, J

[1] The defendant faces 8 counts of sexual touching under 14 and under 16, invitation to touch under 14 and under 16, sexual assault under 14, and sexual assault: all on N, his granddaughter, (ss. 151x 3, 152 x 2, 271(1) x 3, CCC) over the period of January 1, 2002 to December 31, 2011.

[2] The Crown called three witnesses. Ms. Kroeker is a social worker at an Ottawa High School and was spoken to by N about sexual abuse by her grandfather. Other than the ages when she recalled the abuse, she gave no details. Because of reluctance by N, it was agreed that they would meet a few days later, when Ms. Kroeker would call the CAS with N present. She telephoned the CAS December 3, 2013 while N was present.

[3] N is 18 years old and resides with her father and siblings. The defendant is her father’s father. Her video statement taken by the police during her interview on December 19, 2013 was played as her examination in chief, adopted by her, and admitted into evidence. She had first told Ms. Kroeker of the abuse by her grandfather, had wanted to wait a few days before reporting the abuse to the authorities, but then was with Ms. Kroeker when she called the CAS. She told her parents that same evening. She said her parents were shocked and disturbed. Her father was upset at not being told previously. She gave her father the details of the defendant touching her breasts and her vagina on three occasions at different places. She believed that what she told Detective Wagner during her interview was essentially what she had told her father.

[4] She said that when she was about 5 or 6 (2002-3), while being babysat at her grandfather’s apartment on C[…] Avenue. near B[…], he came into her bedroom, took off his clothes, took off her clothes, had her sit on him, and while he had an erection, invited her to touch his penis. He touched her breasts and vagina. He told her not to tell her parents. This apartment was a ten minute walk to her home at the time. Under cross-examination, she said this incident might have happened a year or two later, but she insisted under close questioning that all of the other details including location were accurate.

[5] She felt there were other occasions, but only had a clear recollection of a further incident when she was 7 or 8 (2005-6); and another incident when she was 12 or 13.

[6] In 2005-6, while her father was in the US for several months, the defendant had come to visit, came up to her bedroom, climbed up onto the top bunk, and repeated what he had done previously. He pulled his pants down to expose his penis, took all of her clothes off and had her sit on him while his penis was erect. Aside from sitting on him, there was no other touching. This lasted about twenty minutes. Her mother and sister were in the house at the time. She could not recall how long he had been there in total. He did not penetrate her or have intercourse. He told her not to tell her parents. She believed that the defendant’s then girlfriend was generally around at the time.

[7] Christmas Eve, 2011 was the last time; although since then, he had sent her many texts and telephoned her often for her to meet him. She ignored the texts and made excuses when he telephoned. However, during cross-examination, she admitted having asked her father, after having received a text, if she could go to meet the defendant, and he said – no. None of the texts continued to be available. She said she destroyed them as soon as she got them.

[8] On Christmas Eve, 2011, while she was 14, the defendant was visiting her home. He was alone without his girlfriend. Her brother’s second birthday had been December 28, and she could not say whether the gathering was to celebrate her brother’s birthday or Christmas. She was asleep on the sofa in the living room. She had fallen asleep on the longer sofa while the defendant was sitting with her sister on the adjacent love-seat watching television. She awoke to find the defendant lying behind her on the sofa. The defendant had put his hands under her shirt, touched her breasts, and touched her vagina. She said she did not know if anyone else was present, although there was no one on the adjacent love-seat. She tried to move his hands but he grabbed her wrist and prevented her from moving. She said her father came into the room and saw what was going on. He argued with the defendant and kicked him out. When questioned by her father, she denied anything wrong had happened, and said she had been asleep. She said her father was yelling. She said she did not want there to be trouble. Under cross-examination, N said it might have happened in 2010 instead of 2011.

[9] However, after that, she refused to permit herself to be alone with the defendant. She had always made sure that her sister was never left alone with the defendant. Until a Thanksgiving 2013 get together at his apartment, there had been no contact at all. She said she would not have gone to the Thanksgiving family gathering if it had been up to her.

[10] She recalled that the defendant, on one occasion, had returned from the Philippines with bras, underwear and perfume for her when she was very young. She did not wear a bra at the time.

[11] She said that she had a strong sense of trying to protect her sister, but never told her about the assaults because her sister would not have understood.

[12] A.F. is N.’s father, 48 years of age and described himself as a facilities technician who repaired and maintained HVAC systems. He said that in December 2013, N came to him and said that his father (the defendant) had done something to her when she was young that she could not forget. She told him that during a visit to the defendant’s apartment for him to babysit her and her sister(S), S had been left in the living room while the defendant took N to a bedroom. She told him that the defendant put her on his lap, and asked her to remove her shorts. She told A.F. that she had told the guidance counsellor at school about the incident. A.F. said he felt very angry, and had to leave the room. He said he was angry at himself and felt responsible as her parent.

[13] A.F. said that he remembered that in December, 2011or possibly December, 2010, there was a gathering at his house. He could not remember the occasion, but that it was Christmas time and also close to his youngest son’s birthday. Later, sometime after midnight, he went upstairs to see where everyone was, and saw N lying on the sofa with the defendant behind her, and with his hands under her shirt on her chest. He was three feet away and said he became very angry and was yelling. He said N woke up and he sent her downstairs. Another guest was asleep on the love-seat. He repeatedly questioned the defendant who refused to answer his questions. Because of the hour, he let the defendant stay and said they would talk in the morning. Again, in the morning, he questioned the defendant, and again the defendant refused to answer. Shortly afterwards, the defendant left.

[14] He said that he has not seen him much since. They would see each other at church a few times but not speak, and then in October, 2013, he accepted an invitation with the family to attend his apartment for his birthday. He said they went because the defendant is his father, is old, and is family.

[15] He recalled that the defendant had come to live with him on W[…] Crescent for about two years starting in October, 2000, after arriving from the Philippines. The defendant then moved to M[…] Drive when he got married. The defendant and his new wife separated after two years together.

[16] A.F. admitted to a conviction May 3, 2011 for possession of drugs, and a sentence of 4 months conditional, plus probation. He had a further conviction for breach of probation in November, 2012, because he failed to attend an information session as required by the terms of his probation. A further period of probation was imposed. His criminal record was admitted into evidence. He said he was a drug user from 2005-6 until early 2012.

[17] The defendant elected to call evidence. He is 74 years of age and has been retired since 2009 or 2010. He arrived in Ottawa from the Philippines, October 26, 2000, and joined his son A.F. and the family consisting of his wife Gemma, two daughters, N and S, plus Gemma’s mother-in-law at their home at W[…] Drive. He lived there with them until March, 2003 when he moved to M[…] Drive into the home of his wife to be. They divorced in 2005 or 2006, and in March or April, 2006, he moved to a one bedroom apartment on C[…] Avenue. His other son and A.F.’s half-brother, Christian, moved there with him.

[18] Before retiring, he worked as a cleaner with 4 p.m. to midnight shifts. His highest education was grade 6 from the Philippines. He gave his evidence through a Tagalog interpreter.

[19] He told of only seeing his son occasionally after moving from his son’s home. He said that one day in 2006 or 2007, A.F. showed up at his apartment on C[…] Avenue. with another woman saying that he had just arrived from a stay in Pennsylvania where he had met the woman. The defendant said he had no idea why A.F. was there, why he had brought the woman who was not his wife; and did not ask. He stayed for a week. He said that at one time after that, A.F.’s wife, Gemma, showed up looking for A.F. The defendant told her A.F. was not there, but did tell her he had a girlfriend that he had brought back from Pennsylvania. The defendant told A.F. what he had told Gemma. According to the defendant, A.F. was very angry at him after that for having told his wife. In fact, that was the defendant’s explanation for having very little contact with A.F. at all after that. A.F.’s wife, Gemma, died of cancer in 2008.

[20] The defendant denied ever having N and her sister to his apartment on C[…] Avenue without their parents. He denied ever visiting his son A.F.’s home to visit N and take her alone to her bedroom. He denied ever touching N for a sexual purpose while he lived at his son, A.F.’s home. He denied ever babysitting his granddaughters at his C[…] Avenue apartment. He denied ever touching N for a sexual purpose. He admitted taking N and her sister out to the park alone from time to time, but only when asked by their mother. He admitted to seeing the girls and the family a great deal at least up to 2008 when the girls’ mother died.

[21] He admitted bringing bras and underwear back from the Philippines for the girls including N, but said that these were gifts from his ex-wife, their grandmother, and an Aunt who lived in the Philippines.

[22] The defendant told of being at A.F.’s home in December, 2011 at a gathering. He could not remember the reason for the gathering, but recalled that his other son and girlfriend were there along with N and her sister, A.F. and his new wife, plus another friend, Nelson. During the evening, he said he had seen A.F. in the washroom doing drugs and some beer. He noticed that his eyes were sleepy or droopy. The defendant said he had about a Styrofoam cup full of whisky over the course of the evening. Between 12 and 1 a.m., he felt dizzy, sleepy, and went to lay down on a sofa by himself in the living room. Nelson was asleep on the adjacent love-seat. He said he fell asleep, and heard nothing until he was awakened by Nelson in the morning, after which he left. He denied having laid down beside N, and denied touching her for a sexual purpose. During cross-examination when asked about hearing his son yelling at him, and in his vicinity, he said repeatedly he had been asleep and knew nothing. He denied there was an argument. On another occasion he said: “I was asleep at the time, and have no memory of being yelled at.” And further: “I only know I was asleep that’s all I know.” Later during cross-examination, after admitting during examination in chief, the occasion was in December, 2011, he said first that he was in the Philippines in 2011 until 2012, and then said he had spent Christmas with friends at his B[…] apartment.

[23] After, December, 2011, he said he saw his son outside church on Father’s Day. He recalled being invited by his son to his grandson’s baptism followed by a restaurant reception. N was at the reception as well. He said that A.F. and the family came to his apartment at Thanksgiving, 2013.

[24] When pressed about why he had not visited A.F. for a long time after December, 2011, he said it was because he had no time, and was spending his time at the mall with friends. Then he said it was because his son was angry at him for having told his wife about the girlfriend. He agreed that he had not mentioned this explanation in his police interview however. In fact during his police interview he said that there were no family problems at all. He said he loved his grandchildren, and when asked why they were not part of his life, he said the reason was “not apparent to him.”

Analysis

[25] The allegations of sexual touching/assault all relate to N and the defendant; and fall into three distinct time frames, incidents, and locations.

[26] Firstly, Counts 1 to 3 relate to the period of January 1, 2002 to December 31, 2004 which according to N, occurred on one occasion at the defendant’s apartment on C[…] Avenue while he was babysitting her and her sister.

[27] Secondly, Counts 4 to 6 relate to the period of January 1, 2005 to December 31, 2006, and an incident, according to N, that occurred at her home during a visit by the defendant.

[28] Finally, Counts 7 and 8 relate to the period of December 1, 2010 to December 31, 2011, an incident, according to N, that occurred at her home during a family gathering.

[29] Since the defendant called evidence, I am required to first consider whether I accept his evidence. If I do, then I must acquit him. If I do not accept his evidence, then I must consider whether the evidence he did give has raised a reasonable doubt. Again, if so, I must acquit. If I do not so find, then I must consider whether on the whole of the evidence or the absence of evidence, I am left with a reasonable doubt about the guilt of the accused. This approach is designed to ensure that the burden of proof to establish the defendant`s guilt beyond a reasonable doubt remains with the Crown throughout. [^1]

[30] Except as noted, I do not accept the defendant`s evidence, and neither does his evidence raise a reasonable doubt. For the most part, his evidence amounted to a general denial. While he denied the incidents he obfuscated. His evidence was frequently evasive, unclear, and disjointed. There were frequent contradictions with what he had told the police during his interview, and contradictions during his evidence. It was a bit of a struggle following his evidence through an interpreter, and I must give him the benefit for any possible misstatements when considering his evidence, even though I consider most of the difficulties in following his evidence to be as a result of his obfuscation.

[31] I remind myself that in considering the evidence of N in recounting events that occurred while she was young, that I must assess her evidence slightly differently. I must make allowances for memory issues concerning dates and places where there are inconsistencies. Tests of credibility applicable to adult witnesses are the same when adult witnesses are recounting events while they were children, however, inconsistencies about matters such as dates and location should be considered in the context of her age at the time the events about which she is testifying occurred[^2].

[32] On the whole of the evidence concerning counts 1 to 3, I do have a reasonable doubt. The defendant was clear that he did not live at the C[…] Avenue address until March of 2005 or 2006. No evidence was led to contradict his evidence on that point. The defendant’s evidence was that after he moved to the C[…] Avenue apartment, his other son Christian lived with him. Christian was not called to give evidence. N’s evidence was that she was 5 or 6 at the time, and was quite categorical that the assault occurred at the defendant’s C[…] Avenue apartment. Even allowing for a very young child’s natural predisposition to make errors with dates and places, her evidence places the incident at a time and place such that it raises a reasonable doubt. This is not to say that I reject her evidence or find that it did not happen. Simply put, I have sufficient concern that I cannot say the evidence concerning counts 1 to 3 does not raise a reasonable doubt. It is a high threshold.

[33] As for Counts 4 to 6, I cannot say that the defendant’s evidence raises a reasonable doubt. While he denied the incident, his evidence was confusing and contradictory concerning who would be with the children, and when. The defendant contends that the incident is improbable as was described by N. He contends that A.F.’s then wife was described as a strong, no nonsense woman, and that it was unlikely she would have permitted her daughter to be alone upstairs with the defendant for 20 minutes without questioning. N was 7 or 8 at the time. It does not seem reasonable to expect a mother to feel she has to check up on a grandfather and his 7 or 8 eight year old daughter. Quite the contrary, I would expect that unless there was evidence to raise questions, that a grandfather would be trusted to be alone with his 7 or 8 eight year old granddaughter without enquiry. N’s evidence was clear that the defendant took her up to her bedroom, had her remove her clothes, while he pulled his trousers down to expose his penis, and had her sit on him. There was no penetration. The evidence as a whole does not raise a reasonable doubt. I am satisfied beyond a reasonable doubt that Counts 4 to 6 have been made out.

[34] Counts 7 and 8 relate to the incident of December, 2011 (or 2010). I find that the incident occurred in December, 2011. N was 14 at the time. The defendant said that he was asleep in the living room on a sofa, and claimed, therefore, he was unaware that he had been yelled at by A.F., and unaware that he had been questioned about what he was doing on the sofa with N. Other than a general denial of having sexually touched N, he did not deny what happened. His explanation was only that he had been asleep. He said when he fell asleep, he was alone on the sofa. That leaves open the possibility that N came to lay down in front of him on the sofa while he was asleep, and that while asleep he fondled N`s breasts. That, of course, was not the evidence, and was not the position taken by the defence. I find his evidence illogical and unreliable.

[35] The defence theory was that A.F. made the whole thing up in saying that he saw the defendant touching her breasts under her shirt because of his animus towards the defendant. A.F. was never asked that question. There was no evidence there had been animus other than the defendant’s evidence that his son was angry at him for telling his wife about his seeing another woman – four years earlier. That wife died in 2008, three years before this incident. In fact, even the defendant was not asked if A.F. had felt animus towards him - keeping in mind that it was his son who invited him to the family gathering in question. Similarly, the defence theory was that because A.F. was seen doing drugs earlier in the evening that his evidence about what he had seen was unreliable. There was no evidence of the effect of the drugs if any on A.F., such that his observations of the defendant could be considered to be unreliable. Again A.F. was never asked that question. It seems it is an inference that I am invited to draw. I do not see the connection. The defence raised the issue of timely complaint by N, and that she should have told A.F. that the defendant had done what he did instead of denying it, when he confronted her at the time. N said she had been frightened about causing problems; and that was why she denied the incidents even though her father had clearly seen the defendant`s hands up inside her top. I accept her explanation. It is consistent with what a young girl might have said at the time. She is now an adult.

[36] The defence also advanced the theory that A.F. would not have been so shocked at the time of the disclosure in 2013, if in fact, he had seen what he claimed to have seen in December, 2011. I do not accept that submission. In 2013, the disclosure to him, before the charges had been laid, was that the defendant had sexually assaulted N several times from when she was 5 years old through until she was 14. Before the disclosures, he only knew then of the 2011 assault, and would have been devastated to learn the assaults had been so widespread. It is quite understandable that A.F. was so upset at the time. It is an inference. Again, A.F. was never asked in evidence about it.

[37] On the whole of the evidence, I find beyond a reasonable doubt that the defendant was lying on the sofa behind N and fondled her breasts under her top and her vagina at the time of the gathering in December, 2011 as she described it.

[38] In conclusion, I find as follows:

Count 1- Not Guilty

Count 2- Not Guilty

Count 3- Not Guilty

Count 4- Guilty

Count 5- Guilty

Count 6- Guilty

Count 7- Guilty

Count 8- Guilty

Honourable Justice Timothy Ray

Released: February 25, 2016

CITATION: R. v. NF, 2016 ONSC 1280

COURT FILE NO.: 14-SA5033

DATE: 2016-02-25

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

N.F.

Defendant

REASONS FOR JUDGMENT

Ray, J

Released: February 25, 2016

[^1]: R v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at paras. 26 – 28 (S.C.C.)

[^2]: R v. M. (A.), 2014, 123 O.R. (3rd) 539 (ONCA)