COURT FILE NO.: 1231/15 DATE: 2016 08 08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN W. Dorsey, for the Crown
- and -
MM B. Burgess, for MM
HEARD: August 2, 3, 4, 2016
REASONS FOR JUDGMENT
FAIRBURN J
A. Overview
[1] MM is charged under s. 271 of the Criminal Code with having sexually assaulted his step-daughter, JN, within 60 days of November 15, 2012. JN testified that when she was 14 years of age, she accepted MM’s offer to give her a back massage, during which he unhooked her bra, rolled her over and massaged her exposed breasts. MM testified that he has never given JN a massage and has never touched her breasts.
[2] There is no issue in this case about whether, if the activity occurred, it constituted a sexual assault. The alleged touching is sexual in nature and the complainant testified that she did not consent. Moreover, as she was 14 years of age at the time, s. 150.1(1) of the Criminal Code precludes the defence of consent.
[3] As such, the question in this case is whether the Crown has proven beyond a reasonable doubt that the alleged activity took place.
B. The Evidence
[4] This was a two witness trial. The complainant testified for the Crown and the accused testified in his own defence.
(i) JN’s Evidence
[5] JN was born in December 1997. She first met MM when she was in grade 5. JN’s mother developed a relationship with MM while he was living in Morocco. They met on-line. JN would sometimes speak to him on Skype. When JN was in grade 6, she and her mother went to Morocco to meet MM in person. MM and JN’s mother eventually married and he came to live with them in Canada.
[6] In the beginning, JN and MM had a good relationship. He was like a father to her. She said that the problems started when she was in grade 8. JN admitted that she had a “teenager attitude”. MM did not like her attitude. In cross-examination she agreed that at the preliminary inquiry she said that MM and she had a good relationship in grades 7, 8 and 9 and that he was a “cool stepfather” during this period of time. She clarified that she had not intended to suggest by this evidence at the preliminary inquiry that there were no problems in their relationship prior to grade 10, only that MM was nicer to her prior to grade 10.
[7] JN had a number of friends, including male friends. She said that her friends stopped coming by her home because MM did not appreciate them being over. He scared her friends and would give them dirty looks. MM used to tell JN’s mother that he did not want her friends over. JN’s mother would then discuss it with JN. JN testified that she did not think it was fair that her friends could not come over. She testified in-chief that she only discussed this with her mother. In cross-examination she agreed that at the preliminary inquiry she had testified that she had spoken to MM about this fact and told him that she thought it was unfair that her boyfriend was not allowed to come over. Upon being refreshed with her preliminary inquiry testimony, JN recalled that MM had called her upstairs on one occasion to discuss her boyfriend and it was during that conversation that she told him it was not fair.
[8] She denied that MM caught her at home alone with her boyfriend and that he asked the boy to leave. While she agreed that this particular boy was afraid of MM, JN said it was because MM was taller than the boy was and MM had given the boy dirty looks.
[9] In October of grade 10, JN was doing various physical activities, including cheerleading. She used to get sore and MM would massage her. This had occurred on about four to five occasions prior to the events resulting in the charge before the court. JN testified that MM had never touched her inappropriately on any of these prior occasions.
[10] One day she came home after she had been cheerleading at a pep rally. While JN was initially uncertain about the year that the alleged activity took place, she eventually settled on the fact that it was October 2012 when she was 14 years old and in grade 10.
[11] MM was at home but her mother was not. JN and MM were in the kitchen. She was making Kraft dinner and complained about her sore back. MM offered to give her a massage. At first she said that she did not want a massage, but when he offered a second or third time, she accepted. When asked why she said no at first, particularly if the accused had massaged her before without any incident, JN said it was because she does not typically take people up on their offers. Nonetheless, when MM offered a second time, she decided to take him up on the offer.
[12] She went to get cream from her room and then went to her mother and MM’s bedroom. She laid face first on the mattress of the bed. She had on a pair of athletic shorts, a bra and a long t-shirt. In examination-in-chief, JN testified that she lifted the back of her shirt so that MM could massage her back. In cross-examination, she was asked about a statement she had given to the police where she said that MM had lifted her shirt up. JN clarified that she cannot now remember how her shirt came to be lifted. She testified that she left her bra on and fastened.
[13] MM stood beside the bed and proceeded to massage her back. In cross-examination, JN was asked about her testimony at the preliminary inquiry where she had maintained that MM was sitting on the edge of the bed when he massaged her. She said that her memory is “fuzzy” on this point because she was in a car accident in January of this year. She testified that she cannot now remember whether MM was sitting or standing.
[14] In examination-in-chief, JN testified that MM massaged her back, including her lower back close to her buttocks and under the waistline of her shorts for two to three minutes. He then unclasped her bra. She asked him what he was doing and he responded that the bra had been in the way. Previously he had massaged her back with the strap remaining closed.
[15] A couple of minutes after the bra was unfastened, MM grabbed JN by her right shoulder and flipped her onto her back. He then massaged her exposed breasts. JN testified that she was in shock and could not say anything. She testified in-chief that he massaged her breasts for about 2 minutes before he said that it felt “nice”. He massaged her breasts for a total of around five or ten minutes. When asked about her preliminary inquiry evidence, where she testified that the accused was massaging her breasts for a total of 90 seconds, JN testified that it felt like half an hour and she was scared, uncomfortable and not concentrating on the passage of time. She cannot now recall how long he massaged her breasts for. She pointed out that she was 14 years of age when the alleged incident occurred and that she is now 18 years of age.
[16] MM asked her if it felt good. She told him that it did not feel good and he responded that she was “weird” if she did not like it. She felt like she was “frozen”.
[17] The incident ended at about 3:50 or 4 p.m. JN’s mother came in around 5:00 p.m. She chose not to tell her mother what had occurred. She did not tell her mother until a few months later around the end of January 2013. Other members of JN’s family, including her sister, father and aunts also found out at this time. JN denied the suggestion that she fabricated this sexual assault because her mother was angry with her that she had lost her iPod and was yelling at her. She denied that she did it to divert her mother’s attention so that she could avoid getting in trouble. Instead, JN said that she let it out in anger.
[18] After disclosing to her mother, JN moved to her biological father’s home. He lived in Grimsby, Ontario. While living with her father, completing her second term of grade 10, JN would travel to her mother’s home on weekends. During one of these weekend visits, JN testified that her mother and she confronted MM. She testified that while he admitted to massaging her, he denied massaging her breasts.
[19] JN testified that the accused said he had smoked three joints that day. She testified that this was the only time that she ever discussed the incident with MM. She specifically denied having had a discussion with MM on the day that she disclosed to her mother. She was asked about her evidence at the preliminary inquiry where she testified that the accused admitted to having massaged her on the night she disclosed to her mother. JN said that she cannot now recall this occurring and insists that it was a few months later that he made this admission.
[20] JN moved back in with her mother and MM on June 25, 2013. She agreed in cross-examination that in December of 2013 she called 9-1-1 to report having been assaulted. The police attended at the residence and spoke to her alone in her bedroom. She was crying because MM had “smashed” her face into the wall. She told the police about this. She did not tell the police about the sexual assault from October 2012. She testified that while she thought about telling the officers about the incident that forms the subject of this trial, she was not yet ready to disclose to the police in December 2013. No charges were laid as a result of the assault complaint.
[21] After the December 2013 9-1-1 call, JN moved in with her aunt and cousin. She testified that she was treated unfairly by her aunt because she was being blamed for things that her cousin did. JN moved back to her mother’s home in May 2014. By this point MM had moved out.
[22] JN agreed that she had been dishonest with her mother in the past, but said that these times involved “little lies and fibs”. She insisted that she has only been dishonest with her mother about “silly things”. For instance, she said that when her phone was confiscated by her mother as a form of punishment, she would take it back and lie that she did not know where it was. JN testified that in her view there is a difference between big and little lies. A big lie is “committing like a murder”. She agreed that she would tell lies to get out of things she did not want to do or to do things she wanted to do.
[23] Eventually, in the summer of 2014, she reported the matter to the police. She said that while she had disclosed to her mother in January 2013, she was afraid to go to the police because the incident was difficult to speak about and she did not want to go through “any of this”, which I took to mean the court proceedings. JN testified that it was her own decision not to go to the police any sooner. While her mother and sister spoke to her about going to the police in July 2014, she did not feel pressured to do so.
[24] During cross-examination, it was suggested to JN that she went to the police because her mother had split up with MM and pushed JN to make the report. She denied this. Initially she said that she went to the police because she was feeling more confident and that her family was now supporting her. Later, part of a statement given to the police was read to JN where she had told the police that she had been thinking about coming forward and then her mother told her that she should come forward. A probation officer told her the same thing. After the police statement being put to her, JN agreed that she had these discussions with her mother and the probation officer. She agreed that her mother and sister encouraged her to report the matter to the police.
[25] MM and JN’s mother had rough patches in their relationship. Up to June 2011, things got progressively bad. JN testified that MM had relationships outside of the marriage and that this upset her mother. He moved out in June 2011 and was gone for almost a year. He moved out permanently in May 2014.
(ii) MM’s Evidence
[26] MM testified. He denies that he ever touched JN in an inappropriate manner. He denies that he ever massaged her in any way. And he denies that he ever touched her breasts. He denies having made the statement attributed to him by JN, that he massaged JN and simply cannot recall massaging her breasts.
[27] He testified that he married JN’s mother on March 22, 2008. They met over an on-line dating service in 2007 while he was living in Morocco. He was a government manager with two university degrees, one in math and the other in English literature. He fell in love with JN’s mother and, after the marriage, he came to Canada on August 24, 2009.
[28] MM testified that he had a great relationship with JN and treated her like a daughter. While he had some arguments with his wife, it was nothing serious. Things started to deteriorate in their marriage in 2011 and he moved out of the family home between April and November of that year. Nonetheless, things remained good with JN and she encouraged him to return. JN agreed that this was true.
[29] Things remained good with JN until he learned that she was bringing male friends home while he and her mother were not there. There was a particular incident involving one boy where MM returned home from his day job and the boy and JN were kissing on the couch. MM was angry and told the boy to leave. He “kicked him out” and acknowledges that he was not polite. He was angry.
[30] This was in March 2012 and JN was very upset. After this, things deteriorated in their relationship. MM told JN that she was not allowed to have boys over unless there was an adult present in the home. MM testified that his views on this subject are culturally informed because “girls back home” are not allowed to have boyfriends at JN’s age in 2012. MM testified that JN was very upset with him. She started coming home and not greeting him. She did not spend time with him anymore. She would go to her room and close the door.
[31] In late January 2013, he was confronted by his wife with JN’s allegation that he had touched her breasts. He told his wife that this did not happen. He testified that despite his wife’s family knowing about JN’s allegation, no one notified the police. Nor did JN’s father approach him in respect to the allegations. MM was consulted about JN coming back to live in the home in July 2013. He testified that he had no problem with her coming home because after January 2013, the allegation had never been mentioned again.
[32] As for JN calling 9-1-1 in December 2013, MM said he was renovating the basement when he heard screaming. He ran upstairs and saw JN and her mother punching one another. He separated them, but denies smashing JN’s head into the wall. He went with his wife to another room and heard JN call the police. The police arrived and met with JN alone in her room. No one got arrested.
[33] While JN went to live with her aunt after this incident, she returned in April 2014. By this time the marriage had broken down. MM left the home in May 2014. He said that the marriage broke down over a number of issues, including financial difficulties, his wife being upset that he was chatting with other women on the internet, and the fact that he had been involved with another woman during his earlier separation from his wife. MM testified that he and his wife had agreed that the marriage was over before JN decided to return. While they agreed to separate amicably, after he moved out, his wife threatened him with a number of things, including having him put in jail and deported back to Morocco.
C. The Law of Sexual Assault
[34] A sexual assault involves an unwanted sexual touching in circumstances where the accused intends to touch the complainant, knowing that she or he does not consent to being touched (or being reckless of or wilfully blind to a lack of consent).
[35] The actus reus involves an assault committed in circumstances of a sexual nature, such that the sexual integrity of the complainant is violated: R. v. Ewanchuk, 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 24. The actus reus requires: (a) a touching; (b) in a sexual way; (c) in the absence of consent.
[36] The touch must be voluntary. The sexual nature of the touch is determined by reference to objective criteria, assessing whether a reasonable person would consider the touch sexual: R. v. Chase, 1987 SCC 23, [1987] S.C.J. No. 57, at para. 11. For purposes of the actus reus of the offence, the absence of consent is established solely by reference to the complainant’s subjective state of mind toward the touching at the time that it occurs: Ewanchuk, at paras. 23-26. For purposes of the actus reus of the crime, the accused’s insight into the complainant’s state of mind is irrelevant.
[37] As for the mens rea for sexual assault, it is a crime of general intent. The Crown must prove beyond a reasonable doubt that the accused intended to touch the complaint without the complainant’s consent: Ewanchuk, at para. 42. As such, the mens rea for sexual assault requires that the accused: (a) touch the complainant; and (b) touch the complainant knowing of, or being wilfully blind or reckless to, a lack of consent on the part of the complainant.
[38] As above, subject to a few statutory exceptions that do not apply in this case, s. 150.1(1) precludes the defence of consent in circumstances where the complainant is 14 years of age.
D. The Presumption of Innocence and Burden of Proof
[39] MM started this trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that the accused committed the crime with which he is charged: R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320, at para. 27. As Laskin J. (as he then was) held in R. v. Appleby, 1971 SCC 4, [1972] S.C.R. 303, at para 33: “[T]he presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit … of any reasonable doubt”.
[40] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or absence of evidence. Likely or probable guilt is not enough. At the same time, it is nearly impossible to prove something to an absolute certainty, a standard of proof which is impossibly high. If after considering all of the evidence, the trier of fact is sure that the accused committed the offence, then the trier of fact will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, the trier of fact is not sure that the accused committed the offence, then the trier of fact will not be satisfied of proof beyond a reasonable doubt. (See D. Watt, Watt’s Manual of Jury Instructions, 2nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13, “Reasonable Doubt”; R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320, at paras. 36-40.)
[41] MM chose to testify. In determining whether the Crown has proven beyond a reasonable doubt that he committed the offence, I must apply the principles in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742. If I believe MM’s evidence that the touching never occurred, I must find him not guilty. Even if I do not believe his evidence that he did not commit the offence, but his evidence leaves me in a reasonable doubt as to his guilt, then I must find him not guilty. Even if his evidence does not leave me in a reasonable doubt regarding his guilt, I may only find him guilty of sexual assault if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt that he committed the offence.
[42] This is not a credibility contest between MM and JN. Indeed, the presumption of innocence and standard of proof beyond a reasonable doubt are inherently incompatible with the concept of a credibility contest: W.(D.), at pp. 757-58; R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8. This case and others like it, that rest on two diametrically opposed accounts of what happened or did not happen, are not about choosing which witness is more likely to be telling the truth. Like all criminal cases, this case (and others like it) are about whether the Crown has proven the essential elements of the offence beyond a reasonable doubt.
[43] Notwithstanding the fact that it is not a credibility contest, an accused’s evidence can be rejected when “stacked” beside other evidence. As Doherty J.A. noted in R. v. J.J.R.D. (2006), 2006 ONCA 40088, 218 O.A.C. 37, at para. 53: “An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.” This legal principle was recently reinforced by Laskin J.A. in R. v. R.D., 2016 ONCA 574, at paras. 7, 15-19. As Laskin J.A. explained at para. 19, in rejecting an accused’s outright denial, the trial judge must be “convinced that the conflicting credible evidence” establishes the accused’s guilt beyond a reasonable doubt.
E. Positions of Counsel
(i) Crown Position
[44] The Crown argues that while there are no obvious flaws in MM’s evidence, and he was not caught in any inconsistencies, I should reject his evidence on the basis that JN was a credible witness and her evidence puts a lie to his.
[45] Mr. Dorsey relied upon a number of factors to support the complainant’s credibility. He argues that JN has a good memory and is able to reliably recall events in her life. Examples of her good memory include her testimony about how she first met the accused, in what circumstances they met, the relationship they had and how it morphed over time, how her mother and step-father’s relationship deteriorated over time, her efforts to have them reconcile, and how and when she disclosed the offence to her mother. The Crown argues that her evidence on these points, some of which were corroborated by MM’s evidence, demonstrates that she is able to reliably testify about events in the past.
[46] In addition, the Crown relies upon JN’s ability to provide a detailed and consistent account about what occurred on the day of the offence. The detailed account she provided underscores the fact that she is recalling and conveying a true event.
[47] As for JN’s evidence about MM’s admission that he had massaged her, just not her breasts, shows her credibility. After all, if she was going to fabricate a an admission, why would she truncate it to leave out the sexual assault?
[48] As well, Mr. Dorsey notes that JN did not shirk from acknowledging her own flaws, including her teenager attitude, stubbornness and periodic untruthfulness. Her acknowledgement of these things demonstrates her commitment to tell the truth.
[49] As for the inconsistencies in her evidence, they are largely on peripheral matters and arise from difficulty in remembering details that occurred some time ago. As for the timing and circumstances of the disclosure to her mother, it should not shake my confidence in her credibility. Nor should the fact that it was not disclosed to the police for another 18 months. People disclose for different reasons at different times and the timing and circumstances here should remain neutral in my assessment of JN’s credibility.
[50] As for whether she had a motive to fabricate, Mr. Dorsey argues that there is no evidence of this and, in fact, the evidence points in the other direction. For instance, as a result of her disclosure to her mother, JN had to move to Grimsby to live with her father. If her objective was to see her friends more, her disclosure had the opposite impact, given that other than one of her friends, she was detached from them when she moved away from her mother’s home.
(ii) Defence Position
[51] Mr. Burgess argues that MM should be believed in his denial of the offence. At a minimum, I should have a doubt arising from his testimony. On this basis I should acquit him. Even if I am not left in a doubt about his evidence, I should acquit him on the basis that JN is a wholly incredible witness.
[52] A number of factors are relied upon to demonstrate MM’s reliability and credibility as a witness, including that he was steadfast, unequivocal and unshaken in his denials, he testified with an air of confidence, and his testimony was logical and coherent. Mr. Burgess takes the position that MM’s implicit acknowledgement that he had the “opportunity” to commit the offence underscores his commitment to the truth when he testified.
[53] As for JN’s evidence, the opposite position is taken. She is said to have shed crocodile tears during her evidence in this court and that I should not be swayed by her demeanour in this regard. I should also have grave concern about JN’s acknowledgement that she has lied to her mother in the past and the fact that she seems to think there is a difference between “big” and “small” lies. Mr. Burgess suggests that a lie is a lie and JN’s carefree attitude toward little lies should cause me concern about her understanding of the importance of the truth. In addition, the circumstances in which she disclosed to her mother should cause me concern, given that it occurred in the context of an argument and when she was getting in trouble.
[54] As for the fact that none of the family who learned of the touching reported it to the police, this should also cause me concern. It is argued that it defies common sense that no one went to the police after the disclosure was made. As well, the fact that no charges were laid after the police attended at the family home in December 2013, underscores JN’s lack of credibility. If she was credible and reliable on this point, surely charges would have been laid.
[55] At a minimum, Mr. Burgess argues that I should doubt JN’s credibility on the allegation before this court given that she had an opportunity to tell the police about it in December 2013 and failed to do so.
[56] It is said that JN had a motive to fabricate the story. She did not like MM because he would not let her friends come over when she wanted them over. The motive had been simmering for some time and she simply blurted it out to deflect her mother’s attention when JN was in trouble over the lost iPod.
F. Analysis
[57] JN was emotional during her testimony. While the defence have taken the position that I should reject this emotion as nothing more than a theatrical performance, particularly when considered against the complainant’s acknowledgement that she was in a composed emotional state at the preliminary inquiry, with respect, I do not see her emotional upset in the same way. To the contrary, although there is no way of being sure, her emotional state appeared genuine and rooted in the effects of an experience she may have had or was having while giving her evidence.
[58] It is important to keep in mind that testifying in court can be a difficult and trying experience. Courtrooms are large places that are, for the most part, full of strangers. In front of these strangers, people are often asked to recount intimate and traumatic experiences in their lives. People have all manner of reactions to these experiences and all manner of reactions to narrating them before others.
[59] While I am not at all convinced that JN’s tears should be attributed to a performance, I am nonetheless cautious about placing too much emphasis, one way or the other, on demeanour in making credibility assessments. As noted in Megens v ORC (2000), 2003 ONSCDC 30010, 170 O.A.C. 155 (Div Ct) at para. 28, “demeanour alone is a weak reed upon which to base an adverse credibility finding in an important case”. Whether demeanour is related to in-court or out-of-court behavior, it can be easily misinterpreted. As noted by Rosenberg J.A. in R. v. Levert, 2001 ONCA 8606, [2001] O.J. No. 3907 (C.A.), at para. 27, demeanour evidence (as opposed to a witness’ demeanour when testifying) has been known to play a role in wrongful convictions.
[60] While the demeanour of a witness should be used cautiously when making credibility assessments, it is not irrelevant: R. v N.S., 2012 SCC 72 at paras. 25-26. It is a factor that can still be taken into account when assessing credibility. In the end, having taken it into account, JN’s emotional state in the witness stand did not cause me to have any more or less confidence in her evidence.
[61] What has caused me some concern is the number of inconsistencies between JN’s trial and preliminary inquiry testimony, and her trial testimony and police statement. Standing on their own, none of the inconsistencies give me great difficulty and many are understandable and easily explained by the passage of time and the circumstances in which the alleged conduct is said to have occurred. At the same time, when the inconsistencies are considered together, a more concerning picture emerges. What follows is a review of some of the inconsistencies.
[62] The fact that JN testified at the preliminary inquiry that her breasts were fondled for about 90 seconds and testified here that this occurred over five to ten minutes, does not on its own cause me to doubt her credibility. She was 14 years of age when the conduct is said to have occurred and she is 18 years of age today. The passage of time could easily account for some lost memory around these issues. As well, there are no stop watches available to those who are victimized in the manner described. It is not unreasonable to think that the last thing a victim of sexual assault would be thinking about is keeping track of how long her assailant’s hands came to rest on each part of her body.
[63] Remaining with the theme of assessing inconsistencies individually, I am not particularly troubled by the fact that JN’s evidence differed between the preliminary inquiry and trial as to whether MM was standing beside or sitting on the bed when the alleged conduct took place. This is a detail that could be forgotten or mistaken with time. As well, JN’s fluctuating accounts as to who lifted her shirt could also be seen as a benign factor when assessing her credibility, a fact that has been lost in the passage of time.
[64] These inconsistencies, though, are accompanied by inconsistencies on matters peripheral to the events forming the substance of the allegations. For instance, the different versions of whether JN ever personally confronted MM with the fact that she felt he had been unfair in relation to her friends not being allowed in the home. Another example is JN’s testimony in this court that her relationship with MM started to deteriorate by grade 8. Yet, at the preliminary inquiry she testified that her relationship with her step-father was good through grades 7, 8 and 9.
[65] Each one of these matters, on their own, have little to no adverse impact on my assessment of credibility. Cumulatively, though, the inconsistencies start to add up. There are other factors that I also must have regard to.
[66] I have considered the police contact in December 2013, when JN called 9-1-1 to report that MM had hit her head against the wall. When she was privately interviewed by the police, she disclosed the assault, but did not disclose the sexual assault. As above, no charges resulted from the police intervention in December 2013. While I have been asked to draw an adverse inference against JN’s credibility because no charges were laid, I decline to do so. There is no evidence whatsoever as to why charges did not result. It would be improper and unfair to assess JN’s credibility against an exercise of police discretion, the reasons for which we know nothing. I will not do so.
[67] At the same time, I must consider the fact that as a result of the 9-1-1 call in December 2013, JN had a full and private police audience. She was angry with MM. She was disclosing the fact that he had just smashed her head against a wall. He was already in jeopardy, but JN did not disclose that MM had also sexually assaulted her over a year earlier.
[68] It is a well-known and accepted fact that sexual assault victims disclose at all different times. Many delay disclosing because of embarrassment, fear, guilt and much more: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65. Indeed, JN testified about having had some of these feelings. The historic rules attaching to “recent complaint” were repealed long ago. There is no automatic inference that attaches to a delayed complaint. At the same time, it is a factor that can be taken into consideration when assessing a complainant’s credibility: D.(D.), at para. 65. It is simply one of the many factors to consider in the “factual mosaic of a particular case”, but on its own, delayed disclosure “will never give rise to an adverse inference against the credibility of the complainant”: D.(D.), at para. 79.
[69] The delay at issue in this case is not the delay in telling her mother. The defence say that the delay is in not telling the police, particularly when the police were present in December 2013. While it is somewhat curious that JN chose not to tell the police about the sexual assault in December, particularly in circumstances where she was angry with MM and already reporting his poor behaviour to the police, it is possible that she was still not ready to talk to the police about the incident. As such, while this is a factor in my assessment of JN’s credibility, I place little weight on the December 2013 non-disclosure.
[70] Moreover, I place no weight on the suggestion that because no one in JN’s family reported the matter to the police when she initially disclosed to her mother in January 2013, that it is relevant to an assessment of her credibility. The fact that family and friends who surround a complainant do not tell the police what occurred, is irrelevant to whether it occurred. It would be unfair to judge a complainant’s credibility, particularly a child’s credibility, by how the adults around her respond to the allegations when they became known.
[71] What I do place some weight on is JN’s admission that she has lied to her mother in the past. JN seemed intent on drawing a distinction between “little” and “big” lies and insisted that she only tells “little” and “silly” lies. She agreed, though, that she lies to get what she wants and to avoid doing things she does not want to do. In some ways this evidence cuts both ways. Her admission that she has lied in “little” ways is a demonstration of her honesty as a witness, her commitment to telling the truth. At the same time, her explanation as to what she perceives as the difference between big and little lies is something that I necessarily have to and have had regard to.
[72] JN’s insistence on drawing lines between degrees of lie is not comforting. Particularly in light of the acknowledgment that she lies to get what she wants and avoid what she does not want. The discomfort is heightened when considering the circumstances surrounding the initial disclosure to her mother, when her mother was angry and yelling at her about a lost iPod.
[73] As for the way in which the disclosure was made to the police, JN first testified that she did it when she was ready to. Later, after having her police statement put to her, she admitted that there were other factors involved, including that she had spoken to a probation officer who said that he would report the matter to the police if she did not. As well, she agreed that her mother and sister had “encouraged” her to go to the police. This was after MM had moved out of the home for the final time. In this regard, I have also had regard to MM’s evidence that at this time, JN’s mother was threatening him with jail and having him deported.
[74] As for MM’s evidence, he testified in a straightforward and confident way. As fairly acknowledged by the Crown, he was completely unshaken in his evidence. He has given an outright denial that he ever massaged JN or touched her breasts. I find that MM did not shy away from admitting his own imperfections, even when they could have hurt him. For instance, he admitted to kicking one of JN’s friends out of the home on one occasion, and that he was angry at the time. He did not attempt to minimize his conduct.
[75] He did not blame the breakdown in the marriage on anyone or anything in particular. He took responsibility for some of the breakdown, including his involvement with others. He was vehement in his denial of the offence.
G. Conclusion
[76] In conclusion, I am faced with a two witness case. The alleged conduct clearly constitutes a sexual assault. JN says that the conduct occurred. MM denies that the conduct occurred.
[77] I find nothing that causes me any concern over the credibility of MM’s evidence. Nor could Crown counsel. Instead, Crown counsel has encouraged me to accept beyond a reasonable doubt that JN is telling the truth and, on this basis, outright reject MM’s evidence: J.J.R.D., at para. 53; R.D., at para. 19. I decline to do so.
[78] In the end, having regard to a number of factors, my confidence in the credibility and reliability of JN’s evidence is shaken. These factors include, but are not limited to, the many inconsistencies between JN’s trial and preliminary inquiry testimony, and her trial testimony and police statement. While each one of the inconsistencies, standing on their own, may not have been troubling, combined they give me pause in terms of JN’s credibility and what actually happened.
[79] In addition, I am concerned about JN’s acknowledgment that not all lies are made equal and that she has used lying as a technique to achieve certain ends with her mother. While on some level, JN should be credited for her frank acknowledgment of her views in this regard, the fact that she has used lies to achieve certain ends, combined with the circumstances of the disclosure to the mother, also gives me pause.
[80] I am also concerned about the timing of the disclosure to the police, particularly in light of the decision not to disclose in December 2013, yet disclose with encouragement of others in July 2014. I am also concerned that JN minimized the reasons for the ultimate disclosure to the police until she was cross-examined and refreshed with her police statement from July of 2014. I believe MM when he says that following the ultimate breakdown of the marriage, his ex-wife (JN’s mother) was not pleased with him and, indeed, was threatening him with certain things, including jail and deportation. The fact that the mother was involved in encouraging the ultimate disclosure to the police gives me further pause about what actually occurred in this case.
[81] This does not mean that I believe JN is not telling the truth. It means that I am not sure about what happened in October 2012 and have a reasonable doubt. It means that I have not rejected MM’s evidence. It means that I do not find that the Crown has met its burden of proving that MM sexually assaulted JN beyond a reasonable doubt.
[82] MM is found not guilty of sexual assault.
FAIRBURN J Released: August 8, 2016