R. v N.K, 2016 ONSC 4168

COURT FILE NO.: CR-13-CA7691 DATE: 2016-06-23 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen Robert Thomson, for the Crown

• and -

N.K. Leo S. Russomanno and Chelsea R. Moore, for the Accused Accused

HEARD: April 11, 12, 13, 14, 18, 19, 20, 21, 25 and 29, 2016 at Ottawa, Ontario

MADAM JUSTICE B. R. WARKENTIN

PUBLICATION RESTRICTION NOTICE Pursuant to Section 486.5 of the Criminal Code of Canada, the identities of the parties have been suppressed.

REASONS FOR JUDGMENT

1N.K. was charged with nine counts of assault on her daughter and three sons. Five of the counts were assault with a weapon, namely using a spoon and a shoe to commit the assault contrary to Section 267(a) of the Criminal Code. Four of the counts of assault, one against each of the four children, were contrary to section 266 of the Criminal Code.

2All counts on the indictment indicate that the assaults were alleged to have occurred between January 1, 2009 and April 27, 2013. The children are identified as Y.K., M.K., Z.K. and A.K., who were 11, 8, 6 and 3 years of age on April 27, 2013.

3The trial occurred over the course of 10 days. The four children and their father, R.R., testified. The evidence as it emerged demonstrated that there had been collusion between the children and their father with respect to the evidence. There was also significant evidence to cause me concern that the allegations against N.K. were either exaggerated or part of a plan to gain an upper hand in a family law dispute.

4Therefore, this family’s history is an important component for consideration because the credibility of the complainants and their father is at issue.

Family History

5N.K., a federal civil servant and her former husband, R.R., a pharmacist, were married in June 1999 in a marriage arranged by their respective families. From the outset, their marriage was troubled. In 1999 R.R. assaulted N.K. and was convicted after pleading guilty to that assault. After a number of interim separations, they separated permanently in June 2009 shortly after the birth of their daughter, A.K. Just prior to their separation, they resided in Cambridge, Ontario.

6After their separation, N.K. and the children moved to Ottawa where she continued her employment with the federal government when her maternity leave after the birth of A.K. concluded. In May of 2010 R.R. moved to the Caribbean island of St. Kitts to pursue medical studies. He remained in St. Kitts until sometime in 2012 when he returned to Canada and moved back to the Cambridge area.

7R.R. did not exercise access to the children between the parties’ separation in June 2009 and February 2012. In February 2012 he began exercising access once or twice a month for a few days at a time. The visits occurred primarily in Ottawa.

8R.R. paid a modest amount of child support between June 2009 and May 2010 when he moved to St. Kitts. Between May 2010 and February 2012, R.R. did not provide any monetary support for the children. In February 2012, pursuant to their Divorce Order that was resolved on the consent of the parties, N.K. received a transfer of a property in Ottawa and a lump sum payment of money that resolved her property claims from the marriage as well as her entitlement to child support, both retroactively to the date of separation and up until October 31, 2013.

9It was a requirement of the Divorce Order that child support was to be renegotiated no later than October 31, 2013 and both parties were to provide their respective income information to the other.

10On many occasions between 2010 and April 2013, N.K. attempted to engage R.R. in the lives of the children. It was apparent that she was struggling trying to raise four children on her own. The trial evidence was that she was finding it very difficult to manage four active children. It also showed that the two oldest sons in particular (Y.K. and M.K.), were hard for her to handle and were physically aggressive with her and with each other.

11The evidence demonstrated that as early as August 2012, N.K. sought the assistance of R.R. to manage the children, particularly the oldest two boys, Y.K. and M.K. She even proposed that R.R. take custody of them and she would keep custody of the younger children, Z.K. and A.K.

12By March 2013, the evidence also showed that N.K. was struggling financially and sought to commence negotiations regarding child support in April 2013 rather than wait until October 2013, the deadline for renegotiating child support as per the Divorce Order. She again proposed that R.R. take custody of the oldest two boys and she would keep the youngest son and their daughter in order to lessen R.R.’s child support obligations and to provide the children with significant access to both parents.

Change in the Children’s Residence

13There were a large number of email and text communications between N.K. and R.R. that were entered into evidence. In addition, R.R. testified. N.K. did not testify and the defence called no evidence. The email correspondence from N.K. was permitted as part of the narrative, not for the truth of its contents. To the extent that R.R. and the children testified about their knowledge of events in those emails and other communications, that evidence has been considered by me.

14The communications between N.K. and R.R. demonstrated that N.K. was struggling with managing her home and the children. The communications also demonstrated that R.R. had little sympathy for N.K. While they often communicated civilly regarding the children and R.R.’s visits, when N.K. sought more assistance from R.R., his email and text communications became nasty, insulting and accusatory. He refused to consider any change to the child support arrangement and did not offer to assist with the children to any significant degree.

15In late April, R.R. had arranged to visit the children for the weekend that coincided with M.K.’s birthday. Shortly before that visit, N.K. provided R.R. with a budget and a proposal that she asked him to consider. The proposal was to begin negotiations of the support arrangements for the children prior to the October 2013 deadline and for R.R. to pay a greater amount of support, to enable her to move with the children into a larger home. She had plans to move in July 2013 if he would assist them financially.

16After some unpleasant text and email communication between R.R. and N.K. that included unreasonable demands and deadlines imposed by R.R. on N.K. regarding her custody of the children, R.R. exercised his access to the children as scheduled for the weekend of April 27, 2013.

17Shortly after R.R. picked up the children, N.K. informed him by telephone and text message that she could no longer manage the children and that he should keep them in his care.

18N.K. did not make herself available to have the children returned to her after that visit. The children began to reside with R.R.; first at the home of his sister’s in Oshawa and then in his own home in Oshawa.

Disclosure of Allegations of Assault

19Between April 27, 2013 and September 10, 2013 N.K. and R.R. were attempting to negotiate a change of custody, access and child support regarding their four children. During this period of time, both N.K. and R.R. threatened to contact the police. Those threats were typically regarding the visitation schedule between them and the denial of access to the children or to information regarding the children.

20On August 9, 2013 during the Muslim holiday of Eid, the children had a Skype visit with N.K. during which N.K. appeared to introduce the children to another man as their second father. This upset the children and resulted in a series of telephone and text interactions between N.K. and R.R. about that Skype visit. The parties’ oldest son, Y.K., then used his father’s cell phone to send an angry text message to N.K. in which he swore at her and called her names.

21Later that evening, the children allegedly disclosed to R.R. certain incidents of abuse that were alleged to have occurred when the children were in N.K.’s care.

22On September 10, 2013 at 10:00 p.m., R.R. sent N.K. an email in which he alleged that N.K. had mistreated the children, including beating them up on many occasions in front of their maternal grandparents. On September 11, 2013, R.R. sent N.K. an email suggesting they have their lawyers draft an agreement regarding the custody and financial issues. At some point that same day R.R. contacted the CAS alleging the children had been abused by their mother. On September 12, 2013, R.R. commenced a proceeding in the Family Court seeking custody of the four children.

23The children were interviewed by the CAS on September 19, 2013 at which time this matter was referred to the police for investigation. The police interviewed the children on October 10, 2013 and shortly thereafter these charges were laid against N.K. for assaulting the children.

Children’s Evidence

24All four children testified during the course of the trial. By that time Y.K. was 14, M.K. was 11, Z.K. was 9 and A.K. was 6 years of age.

25This had been their fourth time providing evidence against their mother, N.K. The three other occasions included the initial interview with the CAS on September 19, 2013, the police videotaped interviews on October 10, 2013 and their evidence in a preliminary hearing on June 1 and 2, 2015. At trial, the three oldest, Y.K., M.K. and Z.K. adopted their videotaped statements to police.

26The children all testified that their mother had hit them on a regular basis. The three boys claimed that N.K. used a soup spoon or ladle (they described the instrument as something that their mother stirred the soup with) to hit them on their arms, back of the head, legs and back. They all claimed that these incidents occurred often, as much as every day.

27The children also testified that the two younger boys, M.K. and Z.K. were hit by N.K. with a shoe, which she used to slap them or threw at them when they misbehaved.

28Y.K., the oldest, described a particular incident in which he had hid under the table in the eating area of N.K.’s home. When he refused to come out, N.K. allegedly dragged him out by his hair. He also described an incident in which N.K. punched him in the stomach when he was running through the kitchen area and knocked him down.

29All of the children also testified about how their mother was greedy for money and mistreated them by shopping for clothes and other items at Value Village. They all agreed that they got this information from their father.

30None of the children ever reported any type of abuse by their mother to their father, their teachers or other adults prior to their alleged disclosure on August 9, 2013. There was no evidence in any school or medical records of the children having been seen with or treated for physical injuries.

31M.K. alleged he had a small scar on his forearm from a time when N.K. had grabbed his arm and punctured the skin because her fingernails were too long. The children could not recall having had bruises or other injuries as a result of the alleged assaults, although they claimed they probably had some bruises at certain times.

32M.K. and Y.K. agreed that they fought with each other a lot and caused their mother a lot of problems. They denied ever being physically aggressive towards their mother.

33The children’s version of the events in N.K.’s home contained information that was consistent between all of the children, such as the fact that N.K. would close the blinds before hitting them. While their individual versions of some of the incidents differed as between the four of them, they all described the same incidents with the soup spoon, the hitting and slapping.

34By the time of the trial, the number of incidents of abuse had increased from their earlier statements to the police and their evidence at the preliminary hearing. One allegation in particular regarding slapping that happened when the children were being bathed was an entirely new allegation at trial as was the frequency and severity of the allegations of abuse.

Evidence of Children

35In considering the evidence of the four children I acknowledge that I am not to apply adult tests for credibility to their evidence. I accept that children experience the world differently than adults and provide information differently.

36I have considered the comments of the Supreme Court of Canada as to the special considerations that should apply when considering the credibility of a child witness. Although the credibility of every witness who testifies must be carefully assessed, the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of children. As McLaughlin J. (as she then was) stated in R. v. W.(R.), 74 C.C.C. (3d) 134 at pp 143-144:

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection .... [T]he presence of inconsistencies, particularly as to peripheral matters, such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

37The fact that there are some differences in the versions of certain events the children described or that they were not able to recount precise details and communicate the when and where of each incident with exactitude, does not mean that they misconceived what they alleged happened to them. That might explain confusion in the details between different incidents and an inability to distinguish one incident from another. This approach to their evidence does not mean, however, that their evidence is not subject to the same standard of proof as the evidence of the adult witnesses.

Evidence of Collusion

38A.K. was the first child to testify. She was only three years old when the children were moved from their mother’s home to their father’s in April 2013 and was four years old when she provided her statements to the CAS and the police.

39A.K. began her evidence in Examination in Chief by describing a number of incidents in which N.K. had assaulted her and her brothers. This included a description of an incident that occurred when the children were being bathed by N.K. where she claimed that N.K. slapped them in the head if they moved.

40A.K. also described how N.K. regularly slapped her on the back of the head and pulled her hair when she would write her “ABC’s too big.”

41A.K. then described one incident when her oldest brother Y.K. locked himself in the bathroom and N.K. was banging on the door and allegedly tried to break the door handle.

42Some of her testimony described incidents that had not been disclosed prior to trial, in particular the incident about the children in the bathtub being slapped by N.K.

43Her evidence at trial was that when she was shown the video of her statement to the police by the Crown in preparation for trial it caused her to recollect some things that she had encountered when she lived with N.K. Her police statement was not produced at trial because she was not able to adopt it.

44In Cross-Examination, A.K. confirmed that she did not recollect meeting with the CAS in September 2013, nor did she recollect that at the preliminary inquiry she testified that she did not remember the interview with the police on October 10, 2013.

45On Cross-Examination, A.K. testified that when the family arrived in Ottawa prior to the commencement of trial, she, her three brothers and R.R. sat in the hotel room and discussed the incidents of assault their mother, N.K. had committed against them. She stated that her brothers and father were telling her things to help her remember them and to refresh her memory. She confirmed that she could not remember most of the things she was telling the Court, but her brothers helped her to remember and also reminded her about the things N.K. had done. She also testified that R.R. was telling the children that N.K. was trying to make their lives worse and would make their lives worse if they returned to live with her.

46A.K. testified that her brothers and R.R. talked about N.K. and how much they hated her. A.K. also described how her brothers and her father had discussed the evidence they were going to give in court. She testified that everyone was talking about how N.K. hit them with the soup spoon and that they told her what she would say in court. This discussion occurred when they first arrived in Ottawa the Sunday before the trial began and continued after the first day of trial.

47In their testimony, which took place after A.K.’s, all three brothers denied that they had any discussion with each other or their father about the evidence they would be giving at trial. They also denied they had ever discussed their testimony among themselves.

48In his testimony, R.R. initially claimed there had been no discussion about the evidence prior to the trial. On returning to the witness box after a scheduled break, R.R. informed the Court that he had remembered that while in the hotel room, the children may have started speaking to each other about the things their mother had done to them, but that he put a stop to it and told them they were not permitted to discuss their evidence.

49I have no reason to doubt that A.K. was sincere and truthful in describing the meetings in the hotel with her brothers and father prior to trial. Based upon her answers to the questions posed in Cross-Examination, I do not believe that A.K. has an independent recollection of anything that occurred in N.K.’s home. She insisted that she recalled being slapped for writing her ABC’s too large, however given her other answers about how her brothers and father spoke to her to refresh her memory, I cannot be certain that she has an independent recollection of these events. For the reasons I describe below, I am left with a reasonable doubt regarding A.K.’s evidence of alleged abuse.

Collusion and Animus

50Children, especially young children are suggestible. Police and those who interview children are trained to ask age appropriate questions without influencing the answer. That is what occurred in this case and it is apparent their statements were accepted.

51Because I have accepted the evidence of A.K. as to the discussions that occurred among her brothers, her father and herself prior to and during the trial, I must consider whether this had the effect of tainting the evidence of all of the children and the evidence of R.R.

52As Justice Feldman commented in the case of R. v. J.F., [2003] O.J. No. 3241, at para. 77:

…The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.

53I must also consider the animus that existed between R.R. and N.K., as well as the animus between the oldest child, Y.K. and N.K., prior to the report of abuse to the CAS. Justice Armstrong, in the case of R. v. Larocque, [2010] O.J. No. 3213 at para. 29 commented that “The evidence of animus … requires the same critical analysis as the evidence of collusion.”

54When examining the history of the disclosure by the children of the alleged abuse by their mother I am struck by the following sequence of events:

a) N.K., in apparent desperation turned the children over to R.R. without an agreement about a change of residence with the children at the end of April 2013. b) At that time, N.K. and R.R. had been engaged in a heated email and text message exchange about N.K.’s difficulty raising the children, the conflict between the oldest two boys, Y.K. and M.K. as well as her need and desire for additional funds to support the children and provide them with a larger home. c) On August 9, 2013 after a Skype call between the children and their mother in R.R.’s presence, N.K. appeared to introduce a new “father” to the children. This greatly upset the children, particularly the oldest two. Y.K. immediately texted his mother from R.R.’s phone, calling her names, using swear words. d) The children allegedly disclosed the abuse to their father, R.R., later that evening. R.R. claimed the revelations of abuse continued after that date. e) R.R. and N.K. continued to negotiate the custody, access and financial arrangements between them. They both made threats to contact the police if conditions they imposed upon each other are not met. f) The first mention of the abuse allegations was made to N.K. on September 10, 2013; on September 11, 2013 R.R. proposed that their respective lawyers should prepare their new agreement regarding custody, access and financial matters and then R.R. contacted CAS; R.R. started family court proceedings on September 12, 2013 seeking custody.

Credibility

55I found the testimony of R.R. to be virtually entirely self-serving, designed to make himself look good and N.K. look bad. The documentary record disclosed the opposite; that R.R. was mean, insulting, rude and often degrading to N.K. in his communications with her. R.R. acknowledged that he had made the comments that were attributed to him in the emails, chats and text messages.

56While both N.K. and R.R. demonstrated a level of animus to the other in their communications, it was apparent that the level of animus by R.R. toward N.K. was significantly greater.

57I did not find R.R.’s evidence to be credible or reliable in any fashion. He changed his testimony when it became clear from the questions he was asked that there had been some advance discussion about the evidence between the children and him. He attempted to minimize that impact of the discussions he and the children had had in the hotel prior to trial and he attempted to put himself in a positive light as the responsible parent.

58I do not believe that children who ranged in age between 4 and 12 years at the time they provided their first statements to the CAS and the police in the fall of 2013, intentionally misled the investigators. I cannot be confident however, in light of the information that came out in A.K.’s testimony as well as the delay between the alleged disclosure and the report to the CAS, that their evidence was not tainted by their father, R.R., in advance of their statements to the investigators. I question whether the children, particularly the youngest three children, were coached by R.R. on what they have alleged occurred in the home of N.K.

59Even if not coached, children of these ages are susceptible to suggestion. The evidence of A.K. at trial about R.R. and her older brothers discussing how much they hated N.K. and how she was trying to make their lives worse by refusing to plead guilty to these charges caused me significant concern. This evidence together with A.K.’s testimony of deliberate interference with her evidence by means of coaching her on what to say and providing her with details of alleged assaults of which she had no independent recollection, leads me to question all of the evidence provided by the children at all stages of this investigation and trial.

60Because I have accepted A.K.’s evidence about the collusion that occurred prior to and during her evidence at trial, I therefore must find that all three of the other children were not truthful when they claimed they had not discussed their evidence with each other prior to trial.

Conclusion

61As a result of the combined effect of the collusion that occurred and the animus that existed between R.R. and N.K. and Y.K. and N.K., I am left in reasonable doubt about the truth and accuracy of the children’s evidence, including the evidence they adopted from their statements to the CAS and the police.

62I therefore find N.K. not guilty of all charges.