minicounsel

CITATION: R. v. A.R., 2016 ONSC 5485

COURT FILE NO.: 14-SA5035

DATE: 20161115

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.A.R.

Accused

Anya Kortenaar, for the Crown

Mash Frouhar, for the Accused

HEARD: April 11, 12, 13, 14, 15, and May 24 and 25, 2016

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR decision

Toscano Roccamo J.

The Charges

1A.R. was charged with three offences, including touching for a sexual purpose the body of a person under the age of 16 years, contrary to section 151 of the Criminal Code; sexual assault, contrary to section 271 of the Criminal Code; and unlawful confinement, contrary to section 279(2) of the Criminal Code. All charges stem from allegations made against him by the complainant, N.S., who is presently 16 years of age.

Overview of the Case

2On February 27, 2014, 14-year-old N.S. was in Ottawa in the charge of the accused, in the hopes of attending an event on Parliament Hill featuring the Aga Khan, and to visit a new city outside of Toronto for the first time. A.R. secured tickets for the event for himself, an acquaintance named G.A., and G.A.’s two sons and mother. G.A., in turn, booked two rooms at the Quality Inn on Rideau Street in Ottawa, one for her family and another for A.R. She was unaware until she arrived to collect A.R. at his home after 8:00 p.m. on February 26, 2014 that N.S. would be joining them.

3After arriving in Ottawa and checking in at the Quality Inn, it was determined that N.S. would sleep on the couch in A.R.’s room and that A.R. would sleep on the only bed available in the room. N.S. alleges that A.R. insisted she sleep in the bed with him, and that once in the bed, he cuddled her and fondled her breast and belly on top of and below her pyjama. She subsequently rose, went to the washroom and texted a friend who alerted police.

4Police arrived and arrested A.R. and charged him with the noted offences.

Issue

5At the heart of this trial is whether matters occurred as alleged by N.S., there being no independent witness to the events.

Position of the Crown

6It is the position of the Crown that the accused was in a position of some authority and control over the vulnerable 14-year-old daughter of his deceased best friend when she accompanied him from Toronto to Ottawa on February 27, 2014; that he contrived to present her to his other travel companions, G.A. and members of her family, as his niece; that he insisted N.S. share his room by indicating to all concerned that she would sleep on the sofa; and that once inside the hotel room, he insisted she lie beside him in his bed where he fondled her breast and stomach above and below her clothing. As such, the Crown posits the accused is guilty of sexual interference and sexual assault as set out in counts and 2 and 3 of the Indictment. In the course of trial, the Crown acknowledged that there was no reasonable prospect of conviction upon the charge set out in count 1 of the Indictment, namely, unlawful confinement, contrary to section 279 of the Criminal Code.

Position of the Defence

7It is the position of the Defence that at no time did A.R. touch N.S. in any sexual manner; that while N.S. at some point sat on his bed in the hotel room, at no time did he invite her to sleep with him, nor did she lie beside him in the bed, but upon a sofa in the room where N.S. made a bed for herself with a pillow and blankets. It is suggested that N.S. fabricated the allegations for fear that A.R. would report impropriety on her part to her mother for having allegedly approached A.R. seeking physical comfort from the cold, after he had fallen asleep.

Applicable Law

8In any case such as this one which turns on the issue of credibility, the principles from Cory J.’s majority judgment in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [W. (D.)], apply. At pp. 757-758, Cory J. stated:

A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

9The Ontario Court of Appeal has since refined the application of the W. (D.) instruction in at least two important decisions.

10In R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37, leave to appeal refused, [2007] S.C.C.A. No. 69 [J.J.R.D.], Doherty J.A. on behalf of the court considered the accused’s appeal from a conviction for sexually assaulting his nine-year-old daughter A.D. The appeal was on the grounds that the trial judge’s reasons for conviction were insufficient because he failed to explain why he rejected J.J.R.D.’s denial of any sexual contact. Doherty J.A. found the trial judge’s reasons demonstrated a careful consideration of all the evidence. This included an appreciation of the potential weaknesses in the complainant’s evidence, an understanding of the position of the defence and the evidence of J.J.R.D., and a proper application of the relevant legal principals. He concluded that the failure of the judge to explain why he rejected J.J.R.D.’s denial of the sexual contact was significant, but did not render the reasons inadequate.

11In dismissing the appeal, Doherty J.A. noted at paras. 37 and 38:

37 In some circumstances, a trial judge’s failure to adequately explain the reasons for rejecting an accused’s denial will make it impossible for the appellate court to satisfy itself that the conviction was based on an application of the correct legal principles to findings of fact that were reasonably open to the trial judge. There are several examples of circumstances in which this court has linked the absence of clear reasons for rejecting exculpatory evidence with the inability to engage in effective appellate review: see R. v. Maharaj, supra, at para. 29; R. v. Lagace (2003), 2003 CanLII 30886 (ON CA), 181 C.C.C. (3d) 12 at para. 44 (Ont. C.A.); R. v. D.(S.J.) (2004), 2004 CanLII 31872 (ON CA), 186 C.C.C. (3d) 304 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 365.

38 In other cases, the trial judge’s failure to explicitly point to factors in the appellant’s evidence justifying his or her rejection of that evidence does not foreclose meaningful appellate review: see e.g. R. v. R.L., 2002 CanLII 49356 (ON CA), [2002] O.J. No. 3061 at para. 3 (C.A.); R. v. S.(A.) (2002), 2002 CanLII 44934 (ON CA), 165 C.C.C. (3d) 426 at paras. 33-34 (Ont. C.A.); R. v. Tzarfin, 2005 CanLII 30045 (ON CA), [2005] O.J. No. 3531 at para. 11 (C.A.).

12Finally, at paras. 53 and 54, Doherty J.A. concluded:

53 The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. 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.

54 On the trial judge’s reasons, the appellant knew why he was convicted. His daughter’s evidence, combined with the credibility enhancing effect of the diary, satisfied the trial judge of the appellant’s guilt beyond a reasonable doubt despite the appellant’s denial of the charges under oath.

Evidence of Children and Young Witnesses

13N.S.’s credibility was essential to the Crown’s case. In assessing the evidence she provided both by way of videotaped statement and at trial, I consider the direction provided by Watt J.A. in R. v. H. C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41, where he said:

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

14I am also mindful of the flexible, common-sense approach proposed by Wilson J. in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 [B. (G.)], at p. 55, where she said:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

15I also note the Supreme Court’s subsequent direction in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 [W. (R.)], at pp. 132-134, where the Court cautioned that it may be an error for a court to apply the same exacting standard to the evidence of children as it does to that of adults. The Court reminded trial judges to refrain from automatically discounting the credibility of young complainants noting that children may view the world quite differently from adults and thus it is hardly surprising that details as to time and place and other peripheral matters important to adults fail to lodge in the memory of children and young persons.

The Evidence

Evidence of A.R.

The Evidence

16A.R. is a 51-year-old man who landed in Canada from his native Pakistan in 1998. He resides with his wife and four children, who are between the ages of 8 and 18. He has no criminal record, and has never testified in any matter prior to this trial.

17A.R. gave evidence through an Urdu interpreter in his native dialect, after having affirmed to tell the truth.

18For the most part and in respect of the uncontentious matters, A.R. gave his evidence in a cautious, even tone, without much expression. His demeanor was generally respectful and deferent. By contrast, he became more animated and emphatic and, curiously, employed the English language to respond in whole or in part to the more contentious questions pertaining to the events that happened in the hotel room he shared with N.S.

19He became agitated, and appeared self-righteous as he described himself and his family members, including his wife and one son who were present in the courtroom throughout his testimony, as the victims of spurious allegations of sexual impropriety. He detailed how his otherwise unbesmirched reputation as an upstanding member of the South Asian Community in Toronto was permanently damaged by the allegations made against him. Indeed, in an emotional and teary outburst that I was unconvinced was genuine, he expressed how these events have changed his circumstances, implying N.S., her mother and their family friend deliberately sought to negotiate an out-of-court settlement in relation to the matter. This evidence was hearsay, offended the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), and had no bearing on the material issue.

20A.R. testified that N.S.’s father was his best friend. However, it would appear that, apart from talking on the phone, they mainly only saw one another at events related to the NDP party and the People’s Party of Pakistan in the City of Toronto. N.S.’s family only came to his home once in 2013, although they first met in 2004 or 2005.

21Although A.R. stated in English that N.S. was “same like my daughter”, he said she did not come to his house often. He also declined to offer his credit to assist her family to secure vehicles for the wedding of N.S.’s oldest sister M., although she was also a volunteer in the same political circles frequented by A.R.

22After N.S.’s father died on January 8, 2014, apart from paying his respects on January 11, 2014, A.R. declined to attend at least two other events in his best friend’s memory, noting that he told his widow he was too busy to attend.

23From A.R.’s evidence, I am not satisfied that he was terribly close to members of N.S.’s family, and indeed questioned whether he described N.S. “same like my daughter” to distance himself from the suggestion he would behave in a sexually inappropriate manner towards a friend’s daughter.

24I note that he later also described the late husband of another crown witness, G.A., as “his best friend”.

25A.R. recalled that N.S.’s mother and his wife spoke often in the month or more after the death of N.S.’s father. He said that it was N.S.’s mother who called him several times in the month of February 2014, and that on February 24 or 25 it was she who asked him to take her daughter to Ottawa to attend the event involving the Aga Khan. A.R. was emphatic that he told N.S.’s mother not to send N.S. to Ottawa, as he did not have a ticket or a pass for her to attend the event. He implied that N.S.’s mother nonetheless pressed him to find a ticket, after she and M. failed to do so.

26He subsequently received a text on February 25, 2014 at 11:35 a.m., from M.’s cellphone, a screenshot of which was entered as Exhibit 6 and which reflected N.S.’s full name, date of birth and health card number. A.R. suggested the text came from N.S. herself, suggesting that she used M.’s cellphone. Indeed, he added in English that N.S. never had a cellphone at the time. However, I attach no weight to the implication that N.S. herself pressed him further to find her a ticket by texting him on M.’s cellphone, as related questions were not put to N.S. for comment in the course of her cross-examination.

27A.R. was loud and emphatic when he recounted how N.S.’s mother called him both before and on February 26, 2014 about a ticket for N.S. and how he told her N.S. could not come to Ottawa with him. He denied speaking directly with N.S. about the matter; denied that he texted N.S. with directions to his home; and denied that he instructed N.S. or her mother to pack N.S.’s pyjama for an overnight visit to Ottawa.

28A.R. claimed to be surprised to see N.S. at his home when he returned from work after 8:00 p.m. on February 26, 2014. He raised his voice in testifying how he became upset with his own wife for bending to pressure brought to bear upon her by N.S. and her mother to convince A.R. to take N.S. to Ottawa. Yet, he said he did not raise his voice or show his upset to N.S. at the time. He appeared somewhat melodramatic in pressing the point that only after his wife, who was said to be unwell at the time, urged him to take N.S. to Ottawa, did he allow himself to be persuaded by the fact that N.S.’s father had recently died, and by his wife’s belief that perhaps N.S.’s prayers could make her well.

29Just as he testified that N.S., her mother and his own wife pressed him to take N.S. to Ottawa, he also testified that he did not call G.A. to offer her tickets to the event on Parliament Hill, insisting that she contacted him to ask him to secure the tickets in order that she and members of her family might visit the Aga Khan. Although A.R. called G.A.’s late husband his “best friend”, A.R. did not know exactly when this friend died in 2013. He also distanced himself from G.A., noting he also did not know her much as she was but one of his late friend’s three wives. He implied that G.A. fell from favour in that his friend told him that he lived separate and apart from G.A. for nine years. Again, I decline to attach any weight to this hearsay evidence, which seemed offered simply to disparage the Crown’s witness, as the Defence failed to put these details to G.A. in the course of her cross-examination.

30A.R. testified that G.A. arrived at his home in order to pick him up at about 8:45 p.m. She briefly came into his house where he informed her that N.S. would be joining them. Because G.A. had forgotten some articles at her home, they returned to her house to pick them up before getting onto the highway for Ottawa.

31A.R. recalled that G.A. only drove about one to one and a half hours before the weather turned bad near Kingston. He testified he then drove the rest of the way to Ottawa and to the Quality Inn hotel on Rideau Street.

32I observed that A.R. reverted to English to respond to important questions pertaining to how he introduced N.S. to G.A. He testified that he told G.A., “I am her uncle, she is my best friend’s daughter and I am taking her with us.” When he was asked to clarify whether he ever told G.A. that N.S. was his brother’s daughter, he denied this. I formed the impression that he was tailoring his evidence and carefully chose his words in English to undermine the suggestion that he misled G.A. by suggesting some blood ties or close familial relationship to N.S.’s father, and therefore to N.S. herself. A.R. went on to add that he never instructed N.S. not to tell G.A. that he was not her uncle.

33I note that if A.R. had indeed described N.S. as his best friend’s daughter to G.A., there would have been no need for N.S. to tell G.A. anything more. Moreover, if A.R. had deliberately or inadvertently misrepresented his relationship to N.S., I conclude that N.S., who accompanied A.R. as his guest and as his charge, would not have challenged him in front of G.A. and her family members, persons she had not previously met before, out of deference and respect for her late father’s friend.

34When A.R. left his home in Toronto, he claimed to be unaware where he would be sleeping that night, noting that G.A. said she would take care of arrangements and book the hotel. When they arrived at the hotel to check-in, G.A. spoke to the desk clerk and he overheard that there were two rooms booked. I did not believe A.R.’s evidence that G.A. then told him she and her mother and sons would take one room, and that he and N.S. would take the second room. Once again, I observed that A.R. responded to the key question about where N.S. would be sleeping by stating in English that G.A. herself told him that N.S. would be sleeping on sofa and that he should sleep in the bed. He denied proposing or insisting that N.S. would sleep in his room on the sofa, although it would stand to reason that, as an upstanding member of some repute in his community, and given the cultural and religious norms observed by members of the South Asian community to which he attested, he would ensure efforts were made to secure separate and suitable sleeping arrangements for his young female charge. Again, given the cultural and religious imperatives of his community, his evidence did not have the ring of truth when he denied that G.A. offered her room to N.S., or invited N.S. to sleep with members of G.A.’s family.

35I could not fail to observe that A.R. also testified in English, without the benefit of translation, in relation to key questions put to him about the furnishings in the hotel room he shared with N.S. He said that there was “only one bed.” He responded that other than the bed, there was a “sofa.”

36His evidence was that after he and N.S. arrived in their hotel room sometime after 3:00 a.m. on February 27, 2014, he quickly changed for bed noting that he wore the traditional shalwar kameez or traditional night-shirt and -pants below his suit. I found it perplexing that he could not recall if he changed in front of N.S., and then denied that he went to the bathroom to remove his suit. I similarly found it noteworthy that, at first, he testified N.S. did not change in front of him, but later added that he was unaware if she even changed her clothes, because he went to sleep only “8 to 10 minutes” after arriving in the room.

37A.R. testified that, before falling asleep, he had a brief conversation with N.S. in which she asked if she was going to Parliament the next morning. He claimed to have told her that she would not be going. He claimed that, in response, N.S. told him she would then visit the city on her own. He noted that, by the norms of their culture, he could not permit a minor female, in his charge, to be alone outdoors without supervision. Therefore, he noted that he directed her to stay in the room. He described her reaction as a bit upset, but not too much. After this, A.R. recalled that N.S. wanted to talk, but he told her he had a headache and that he needed to sleep in order to be able to leave early in the morning. He said that he declined her offer of a pill to ease his headache. He said that he observed her to be playing on her iPod as she was sitting on a chair, although he did not remember exactly where in the room she sat.

38A.R.’s next recollection was once again offered emphatically in English and was prefaced by “I don’t know what”, exclaiming that he found N.S. in his bed “feeling cold”, and stating “uncle, I feel cold.” He testified that he asked her what had happened, and she once again said “uncle, I’m feeling cold.” He claimed that he offered her two blankets and told her that he would sleep in his coat. At no point did he testify that he asked N.S. to sleep on the sofa. His evidence did not have the ring of truth when he emphatically added “I tell N.S. - look I told you”, claiming he became upset with her for coming to his bed, and told her he would have to tell her mother that she did so. A.R. then rambled on in evidence about how he told N.S. that he had four children; that he helped people out; that he helped “everyone”; and that he had never been rude to anyone or had arguments with anyone. He then added that he was testifying about this conversation “by oath I’ve taken in the presence of God.”

39A.R. seemed nervous and shifted in his seat when asked why he would report N.S. to her mother. He responded loudly and emphatically that he would have told her mother that N.S. suddenly came to his bed, and would have asked her mother why N.S. did so.

40A.R. testified that, after upbraiding N.S., she went to the washroom and he fell asleep. A.R. appeared red-faced and uncomfortable in recounting how he woke to the sound of banging at the hotel door; that he opened the door to discover police had arrived and that N.S. walked out of the room towards them straight away. After being arrested by police, A.R. told them that he had a function to attend the next morning and that N.S.’s accusations were all lies.

41After his arrest, A.R. observed that G.A. made indirect contact with him through the manager of her restaurant in order to secure tickets for her brothers-in-law to see the Aga Khan at a subsequent event in September 2014. He claimed that he told the manager he would never do any such thing again, noting for emphasis that he, his wife and his children bore the brunt of all of this, and that he no longer went to most community events as a consequence. He added that he was worried he would be implicated in other things if he did so.

42In later going over the arrangements to take N.S. to Ottawa, I observed that A.R. seemed to somewhat resile from his earlier testimony that he told N.S. and her mother she would not go to Ottawa because there was no ticket for her. He admitted that he could not remember telling N.S. that he would text others to find her a ticket. In addition, A.R. could not recall if he had given N.S. some phone numbers in order to make her own inquiries.

43In reviewing the events that occurred in their hotel room, A.R. denied that he told N.S. she could not leave the hotel room at any point. He denied that he told her to get into bed with him, or yelled at her to bring about that result. Indeed, he denied having any conversation with her to encourage her to do so.

44A.R. further denied any sexual touching of N.S.’s breast or belly, or putting his arms around her to cuddle her in the bed. He denied touching her in any way in the hotel room.

45He testified that he did not take N.S’s bag or anything from it, implying he did nothing to discourage her from leaving the room. He denied making any promises to help make N.S. successful as an adult when she was in bed with him.

46After his arrest, he noted that he respected the court orders not to have contact with N.S. or members of her family although he pointed out they made contact with his wife. He also offered unhelpful hearsay evidence that a friend of N.S’s family, M.M., contacted him in March 2014 to inform A.R. that his photograph and details of his arrest had made the papers, and had thus brought the community into disrepute. Mr. M.M. was said to have offered to meet with A.R. and facilitate a “settlement”, because he had been told that A.R. was caught red-handed in the washroom of the hotel room he shared with N.S. A.R. then proceeded to rant about the content of newspaper articles brought to his attention by the Children’s Aid Society, describing himself as a “social worker”, who helped everyone in the community and who was victimized, with his wife and children, by the allegations and their publication in the newspapers. He offered additional hearsay, to which I attach no weight that his photograph and the account of the criminal allegations were offered to the newspapers by members of N.S.’s family. At this point, he bowed his head, hiding his face from clear view and appeared to cry. However, I was not satisfied that this was a genuine burst of emotion, particularly when he added with little sign of emotion, the likely hyperbole that distribution of the newspaper articles had been made to the offices of all Members of Parliament, further affecting his entire family.

47A.R. concluded his examination-in-chief by noting that he is most comfortable expressing himself in Urdu, which failed to explain why, at critical junctures in his evidence, he testified in English. Nevertheless, he admitted that he is able to speak a bit of Hindi, a bit of Punjabi, and is able to converse in English.

48In the course of trial, Crown and Defence offered the admission pursuant to section 655 of the Criminal Code that A.R.’s statement to Detective Jack Woods on February 27, 2014 had been accurately translated into English from Hindi, Urdu and Punjabi, and that the parties had agreed on an authoritative translation.

49In cross-examination, A.R. gave evidence suggesting that he did not enjoy a long-standing and close personal relationship with N.S. He offered resistance to the notion that N.S. played with his children when they were younger. He denied having knowledge about whether N.S. was in middle school or high school in February 2014. However, when pressed, he agreed that N.S. was younger than his eldest son who was 16 or 16 ½ in February 2014 and ultimately admitted that N.S. was a minor in 2014.

50At the outset of his cross-examination, A.R. testified that, after arriving in the hotel room around 3:00 a.m., he had a conversation with N.S. and told her she could not go to Parliament the next day. He described her as being “a little bit upset” at the news and then she went to the washroom. He denied telling N.S. that she would stay in the hotel room while the Aga Khan event took place on Parliament Hill. He said that N.S. volunteered that she would stay in the room and that G.A. said that she could do so. However, when Crown counsel pointed to the transcript of his examination-in-chief at p. 41, lines 5 to 17, where he made no mention that N.S. went to the washroom after their discussion, he then contradicted his own evidence and stated that N.S. did not go to the washroom after their conversation.

51Crown counsel pointed out to him that in his evidence in-chief at p. 41, lines 11 to 15, he testified that he told N.S. she could not be left unsupervised outside the hotel room while he was attending the Aga Khan event. In response to this apparent contradiction in his testimony, A.R. said that it was a mistake in the transcript or that the interpreter had made a mistake.

52Upon invitation by Crown counsel to do so, A.R. confirmed that in the course of his examination-in-chief, he gave evidence that he went to sleep within 8 to 10 minutes of arriving in the hotel room, and that in the course of the 8 to 10 minutes all that occurred was that he changed into his shalwar kameez; briefly conversed with N.S. to tell her she was not going to Parliament Hill with him; briefly talked about his having a headache and then he went to sleep. He was adamant that he woke when N.S. suddenly came to his bed and said she was cold. He expressly stated that she was not in his bed, but close to the bed at this time. His evidence sounded rehearsed when he added that he then told N.S. to take his two blankets; that he was her uncle; accordingly, she was not to come in the bed but to sleep on the sofa; and that he would be reporting her behaviour to her mother.

53A.R.’s evidence about where N.S. slept and where she was when he was awoken, was to say the least, problematic, contradictory, and at times made little sense. To begin, Crown counsel referred A.R. to his examination-in-chief at p. 43, lines 19 and 20, where he clearly testified N.S. was on his bed. Confronted with this contradiction, A.R. first said that he did not remember saying this and then went on to tailor his evidence by stating in fact N.S. came very close to his bed.

54Crown counsel also pointed out to A.R. that, in his evidence in-chief, he did not state that he directed N.S. to take his two blankets and to sleep on the sofa. In response to this suggestion, A.R. blamed his own counsel for not affording him the opportunity to give a complete answer.

55In response to the suggestion put to him that he raised his voice with N.S. and told her that he would tell her mother, A.R. admitted that this was because it was not appropriate for N.S. to be in his bed. However, when it was put to him that N.S. lay down on the left side of his bed, he replied that N.S. came from the right side of the room where he insisted the sofa was located and that after she got upset, she went to the washroom and he fell asleep. When his recollection of the layout of the furnishings was challenged by reference to a diagram of the hotel room, entered as Exhibit 1, and it was put to him that he in fact lay at the right side of the bed if one were standing at the foot of the bed, A.R. added a new detail to suggest that he in fact lay in the middle of the bed, a little to the left side.

56A.R. agreed with the proposition put to him that he woke to the sound of knocking at his door. Initially, he testified that he did not know where N.S. was as he was sleeping, all the while adamantly denying the suggestion that N.S. was in his bed and conceding only that at one point she sat on his bed. At the request of Crown counsel, he confirmed that he did not make arrangements for N.S. to sleep in his bed. After agreeing with this proposition, he was then referred to the video recording of his police statement (Exhibit 8) and the related transcript at p. 6, lines 3 to 27, in Exhibit 7, where Detective Woods asked him where N.S. was sleeping and where he replied that she was on the same bed; however, he demonstrated that he placed pillows between them on the bed. Confronted by Crown counsel with this clear contradiction to his denial that N.S. lay in his bed, A.R. then offered the unconvincing explanation that he meant to demonstrate that N.S. slept on the sofa to the right side of the bed and that he simply failed to complete his answer. When it was put to him that his answer was clearly translated to denote that N.S. was on the same bed, he blamed the contradiction on the fact that he did not understand the translator when she spoke to him in Punjabi.

57When it was put to A.R. by Crown counsel that the question posed by Detective Woods as to where N.S. was sleeping was a simple question which he both understood and answered without difficulty, A.R. circled back to his reply that N.S. was on the sofa. Once again shown the depiction of the sofa on the left side of the bed in Exhibit 1, and how he demonstrated with his hands repeatedly in Exhibit 8 that N.S. was on the left side of the bed, A.R. replied that the diagram was wrong and that N.S. was on the sofa to the right of the bed. Crown counsel, once again, took him back to his videotaped statement to police and to p. 26 of the related transcript of his statement where there can be no doubt that A.R. demonstrated with his hand, without pause or confusion and without seeking clarification about the question, how he placed pillows down the middle of the bed and that N.S. lay on the left side of the bed.

58I neither believed A.R. nor was left in any doubt by the circuitous and strained account he offered to Crown counsel that N.S. was on the sofa to the right side of the pillows and that she had taken one pillow to the sofa and four were left on the bed, when it was put to him by Crown counsel that the diagram in Exhibit 1 depicted pillow placement at the top of the bed where one would expect them, not down the middle. A.R. once again challenged the diagram adding yet more detail that the pillows were initially where one would expect them to be, but that after N.S. entered the bed, she pulled the pillows, messed up the bedding and there were no longer pillows down the middle. Crown counsel again put to him that his videotaped statement to police clearly reflected that he demonstrated more than once how he put pillows down the middle, how he was noted to be on the right side of the bed and N.S. on the left side with pillows between them – a demonstration which made no sense if N.S. was in fact on the sofa to his right. For this, A.R. laid blame at the feet of the translator, although his actions in his recorded statement to police could not be mistaken and clearly contradict the evidence he offered at trial.

59In the course of cross-examination, Crown counsel circled back to A.R.’s account of how N.S. allegedly woke him after approaching his bed shivering from cold. At this point in his evidence, I observed that A.R. reverted to the English language, behaved awkwardly and raised his voice for emphasis to note that N.S. was very close to his bed. His account of what then occurred was both strained and implausible when, on the one hand, he suggested that N.S. said nothing more than she was cold and at no time claimed that she wished to sleep in his bed, while on the other hand suggesting that by coming very close to his bed, N.S. was somehow planning to enter his bed. Although A.R. initially said he did not want to go into depth about these circumstances, when pressed by Crown counsel, he added that the manner in which N.S. told him she was cold suggested to him she wanted to get into the bed. I am satisfied that A.R. simply offered no credible evidence of any such planning on N.S.’s part and indeed was far more credible when he later acknowledged that N.S. was respectful of her elders and everyone. Pressed further as to why a respectful, 14-year-old N.S. would then evoke a fear in him that she would enter his bed, A.R. once again became loud and emphatic, stating that he did not want to go into depth or to blame anything on her, but said that he felt from her proximity she wanted him to touch her because of the way she said she was cold. He also denied touching her, and added that he refrained to do so because “the program would get spoiled.” When asked to explain what he meant by this, A.R. offered the suggestion that there might have been something N.S. was angry about or planned to do, noting that he could differentiate between a respectful and a disrespectful attitude, an observation which logically contradicted his earlier description of how respectful N.S. was of her elders.

60A.R. went on to deny telling N.S. to get into bed with him as well as every detail of any sexual touching of N.S. However, after being considerably pressed, he acknowledged that it would be inappropriate in his culture for any young girl to sleep in a bed with a 48-year-old man not biologically related to her, even if the man was a close family friend. Having made this statement, A.R. was then taken to his videotaped statement to police, and to pp. 37 to 40 of the related transcript, where he described the circumstances in which it was acceptable for a man to sleep in the same bed as the daughter of his best friend. A.R. then tried in vain to resile from this apparent contradiction, explaining at first that he said that his friend, Matel, could accompany his daughter just as Matel had also taken his wife places on occasion. When Crown counsel pointed out to A.R. that the question put to him by Detective Woods related to his daughter sleeping in the same bed with a man, A.R. denied saying this in his police statement.

61I note that a formal admission was filed on consent to the effect that A.R. had been offered an opportunity of between 2 to 4 hours at trial to review his police statement with a certified translator whose credentials he accepted before he testified at trial. A.R., therefore, had to agree that he had received adequate opportunity to have all questions put to him by police translated, as well as the answers he gave, by an accredited translator. Confounded by his own admission, A.R. was simply not credible in offering the explanation that he had not understood that he was being asked whether it was acceptable for him to think N.S. could sleep with him. Crown counsel put it to him that because he subsequently offered police the justification that N.S. was like his daughter, he clearly understood the question which was put to him. In response to the further suggestion made by Crown counsel, A.R. skirted around the question and offered the self-serving statement that there were things he understood and others that he did not because some things were put to him in his native Urdu and others in Punjabi. I had no confidence in his further statement that he understood that Detective Woods was inquiring whether or not N.S. could accompany him because she was like his daughter, and that he was not willing to take her with him, when his actions suggested otherwise.

62Crown counsel administered a further blow to his credibility by referring him to p. 45, lines 10 and on of his examination-in-chief, where he was asked by his own counsel whether he noted what N.S. did after he told her that he would tell her mother that she came to his bed to tell him that she was cold, and after he gave her his two blankets. In this part of his examination-in-chief, he clearly told his own counsel that N.S. was on the bed when he got upset with N.S. Caught again by this apparent contradiction, A.R. tried in vain to offer explanation about how N.S. came very close or hovered over him or sat very close to him but did not lie in bed with him when he became very angry with her.

63Finally, A.R. acknowledged that after he raised his voice with N.S., she got upset and went to the washroom and they did not speak further before his arrest. He was then taken by Crown counsel to his videotaped statement to police and the related transcript at pp. 24 to 28, where he makes no mention of becoming very angry with N.S. before his arrest. Confronted by this omission, A.R. then attempted to resile from his earlier evidence by noting he was not very angry, only upset, and that police had never asked him about his discussion with N.S. Further pressed, A.R. made the material admission that he never told police N.S. tried to get into his bed, or that he told N.S. he would tell her mother.

64When Crown counsel further explored A.R.’s evidence that N.S. slept on the sofa, A.R. agreed that he neither spoke with N.S. about pulling out the sofa bed for her nor helped her to pull it out. He appeared earnest to add strength to his evidence by noting that she had a small body and said the sofa was good enough for her along with a pillow and a blanket. It was put to him that in earlier testimony he had confirmed for Crown counsel that he had listed all details about what occurred upon arrival in the hotel room and until he fell asleep, but that he had failed to mention N.S. having taken a pillow and sheets or a blanket and having placed them on the sofa. To this, A.R. stated that he was not specifically asked. When pressed, he agreed that at the beginning of his cross-examination, he had listed, step-by-step, all that had happened after he entered the room thereby acknowledging the omission to note any memory of the place arranged for N.S. to sleep on the sofa.

65A.R. confirmed that he did not move a thing in the room before he got up to respond to the knocking at the door; that he did not move anything on the sofa or elsewhere; and that he had given his two blankets from the bed to N.S., although he might have kept the sheet to himself.

66In re-examination, A.R. confirmed that from the time of his arrest at 5:00 a.m. on February 27, 2014, until his interview by Detective Woods was completed, he was not offered any interpreter other than the Languages of Life translator, who he later learned was Indian and who was not an accredited Urdu interpreter. He confirmed that at times she spoke Hindi and at times she spoke Punjabi. However, I observed that A.R. at no time testified that he was prevented from asking for any explanation or clarification of any question put to him. More importantly, the videotaped statement fails to reflect that A.R. was confused by any question, or rushed or in any way precluded from giving fulsome answers to the questions put to him.

Evidence of N.S.

67N.S. is a small-framed, 16-year-old adolescent, who dressed conservatively in dark clothing and a black head covering, in keeping with her Muslim faith. After swearing an oath on the Koran, she gave her evidence in a subdued but forthright and articulate manner, suggesting a maturity and intelligence beyond her years. She made appropriate concessions when her memory was unclear about matters, and did not hesitate to agree where she was shown to be in error. On the other hand, in respect to the material facts pertaining to the alleged charges, she was resolute and unwavering. I found her to be a highly credible witness.

68N.S. resides in Toronto with her mother and five siblings, including her older sister M., aged 23. Her father died on January 8, 2014, about a month and a half before the charged events.

69Although N.S. was born and educated in Canada, her family is from Pakistan and she speaks Punjabi and Urdu, in addition to English.

70N.S. described A.R. as one of her father’s close friends, corroborating his evidence that they met at gatherings related to the People’s Party of Pakistan. Although she is not related by blood or marriage to A.R., she called him “uncle” observing the custom of the South Asian community in relation to a male elder. Her father’s close friend would have been “like a brother to him”. N.S. did not corroborate A.R.’s evidence as to the nature and frequency of their contact. She recalls meeting A.R. at 6 or 7 years of age. She saw him often, especially during the summer time. She was “close” to his four children, and stayed over at his home. Before the charged events, she had never travelled anywhere overnight with A.R., but had gone to political and cultural events with him. She felt she had a good relationship with him.

71N.S. corroborated A.R.’s evidence that, after her father died and before February 27, 2014, she saw A.R. once or twice.

72N.S.’s videotaped statement taken by police on February 27, 2014, was tendered in evidence as Exhibit 2, on consent in accordance with section 715.1 of the Criminal Code, after N.S. adopted its contents. However, after watching the video, N.S. acknowledged that before the investigating police officer began taking her statement, she was seen on the video cleaning her nose and shutting her eyes. She recalled that she had a bit of a cold, and had been crying over what had happened to her, noting also that she did not sleep in the car on the drive from Toronto to Ottawa between 9:00 p.m. and 3:00 a.m., and had not slept in the hotel room before A.R.’s arrest or at any time before her videotaped statement was taken. I accept her testimony that her response to questions put to her by the police on peripheral details of the charged events may well have been affected by her condition.

73N.S. testified that on Tuesday, February 25, 2014, she was briefly told of the plan for her to travel to Ottawa with A.R. on Wednesday, February 26, 2014 in order to see the Aga Khan the following day on Parliament Hill. N.S. spoke with A.R. only once over the phone, in order to get directions to his home, about 2 to 3 hours before she took the bus to his home. She was not entirely sure when she arrived at his home, but estimated that it would have been between 6:30 and 7:30 p.m. on February 26.

74When she arrived at A.R.’s home, he directed her to text a lady in Ottawa about getting a pass to attend the event in Ottawa. She received a reply that it was not one hundred percent sure she would get an extra pass, because the venue was almost full. N.S. expressed disappointment but noted that she was still excited about the trip because she had never been to Ottawa, and wanted to see a new place. In any event, she did not follow the Aga Khan, as he is the leader of the Ismaili Muslims and she is of a different sect.

75N.S. identified the contents of Exhibit 3 to be three pages of screenshots of texts she sent through an application on her iPod, at the request of A.R. The first text was sent to a lady whose phone number he gave to her to inquire about the pass. N.S. explained that the texting application, TextPlus was outdated and operated through the use of WiFi. It erroneously recorded the time and date of the text as having been sent on Wednesday, February 26 at 12:29 p.m., when N.S. recalled that she would have sent the text between 7:00 or 8:00 p.m. I received no evidence to challenge her testimony about the timing of this text. In any event, N.S. identified the second page of the text depicted in Exhibit 3 as others sent on A.R.’s behalf to G.A.’s son, Adam, at 6:53 p.m. and another at 8:11 p.m. on February 26, 2014, first to provide G.A. with his address, and later to inquire as to her whereabouts. The date stamps of these texts reconcile with A.R.’s evidence about when he returned home and would have had discussions with N.S. about the availability or lack thereof of a pass for her to attend the Aga Khan event.

76At p. 3 of Exhibit 3, N.S. identified a text that A.R. asked her to send to another lady to inquire whether two other women had confirmed their attendance at the Aga Khan event. N.S. understood that A.R. wanted to give her a pass to the event if the women failed to confirm. A reply to this text was subsequently received on February 26 at 11:45 p.m. to the effect that the event was at a hundred percent capacity, and that no passes were available even for these other two women. N.S. candidly volunteered that she was unsure whether she read the reply in Toronto or afterwards. However, I am satisfied from the contents of Exhibit 3 that a strong inference may be drawn that N.S. knew the odds of attending the Aga Khan event in Ottawa were not strong, even before she left Toronto. I accept her evidence that she was nonetheless happy to travel to a new city.

77N.S. testified that A.R. introduced her to G.A., G.A.’s mother and her two sons in English, as his biological niece. She thought nothing of it at the time, but in hindsight now feels it was wrong, and that this misrepresentation was used by him to ensure that she accompanied him to his hotel room.

78N.S. sat in the back bench seat of G.A.’s vehicle, beside G.A.’s mother and two sons. When they arrived to park in the basement of the hotel, and before they followed G.A., her mother and sons to check in, N.S. recalled that A.R. told her to say that she was his biological niece and that N.S.’s late father was his brother. Once inside the hotel, G.A. said that there were only two rooms and that she could sleep in G.A.’s room on the sofa, but that A.R. declined this offer, noting that N.S. would sleep on the sofa in his room. N.S.’s evidence had the ring of truth when she testified that she had “strange vibes” about learning that she would sleep in A.R.’s room because he was not related to her, given the customs of her community. However, because she was to sleep on the sofa, she was “ok” with these arrangements. She added, however, that at no time would she have been comfortable sharing a bed with A.R.

79Once in the hotel room, N.S. recalled that she changed in the bathroom into Mickey Mouse pyjama pants, and a long T-shirt that went to her hips or thighs, and which she brought with her in her overnight pack. She recalled that A.R. then changed in the bathroom.

80N.S. did not make the sofa into a bed as A.R. had arranged his dry-cleaned clothes for the next day on the sofa. When she went to move them, A.R. told her to sleep in the bed with him. When she declined, she recalled that he insisted she do so. N.S. testified that, after she declined three times, he became angry and began to shout, whereupon she did what she was told.

81N.S. next recalled that she sat on the bed and put her iPod to charge on the night table near the left side of the bed where she was to sleep, as depicted by the layout of furnishings in Exhibit 1, a drawing she made for police on February 27, 2014, to illustrate the room and its furnishings.

82N.S. testified that the bed had two pillows, sheets and a comforter. She recalled that when she first sat on the bed, she had the bed sheet and comforter below her knees and her back turned to A.R., facing the left side of the room towards the window. After that, she recalled being on her iPod, scrolling through her feed on social media apps. After one to two minutes, she recalled that A.R. told her to put her iPod away and get into bed.

83N.S. testified that, as she was about to pull the comforter over her body, A.R. asked her if she was cold, and she replied that she was. She let go of the comforter as he grabbed her and turned her around to face him. She recalled that he cuddled her as he told her he would keep her warm. At this point, neither of them was under the bed sheets and comforter. There were no pillows or anything else between their bodies or along the middle of the bed. N.S. felt this was very wrong, as in the South Asian culture, it was not normal for an older man to sleep in the same bed as a younger woman, and her family would not have been happy.

84N.S. testified that as A.R. cuddled her, he said to be sure not to tell her mother or G.A.’s family that they were in the same bed in the room. She also recalled that he said that he would help her with whatever she wanted to do in life, and would make sure she was rich.

85N.S. then recalled how, as he lay on his right side, he touched her left breast over her T-shirt confirming that it was the breast closest to the bed as she lay on her left side facing him. She recalled that he touched her with his free hand, not the one nearest the bed, and used it to massage her breast.

86N.S. testified that after about 30 seconds, she felt scared and moved away from him and onto her back, pulling the comforter to her chest. She recalled that he then took his hand, put it below her T-shirt, and massaged the same breast and her belly. After one to two minutes, he stopped but left his hand on her belly. At this point, they were on top of the sheets but under the comforter. A.R. was fully clothed in his shalwar kameez, the traditional Pakistani clothing N.S. described as a long, knee-length tunic-like shirt cut at the sides with matching pants of soft, loose fabric.

87N.S. testified that she knew she had to get help and get out of the situation. As such, she used her right hand to knock her iPod from the night table onto the floor, pretending it was an accident. She then got up, pretending to look for the iPod, and while doing so, concealed it in her underwear on the left side. She told A.R. she was unable to find her iPod and then went to the bathroom.

88Once in the bathroom, N.S. explained how she used another app, KikMessenger, which she had connected to after arriving at the hotel, to send text messages for help. She reached out to A.N., an on-line friend she had met through Instagram, and with whom she had the occasional contact on-line only. She did not recall A.N.’s age, and he did not know hers until after she slowly established her Instagram profile.

89N.S. testified she had first messaged A.N. when she arrived at the hotel to tell him about her trip to Ottawa, and knew there was a good chance he would still be awake when she reached out to him for help. Although she was able to call 911 over the Internet on her iPod, she could only make calls on speaker and was afraid A.R. would hear her if she did so.

90The text communications between N.S and A.N. were extracted by police and captured in Exhibit 4. They include the earlier communications between N.S. and A.N. beginning at 3:01.07 a.m., February 27, 2014 when N.S. arrived at the hotel. N.S. testified that these early messages were sent after she washed her face and as she was standing beside a chair near the T.V.

91More importantly, N.S. testified that she did not reply to A.N.’s query sent around 3:37.01 a.m., as to when she would go to see him because A.R. had told her to turn her iPod off. Thirty-three minutes later at 4:10.43 a.m., she texted A.N. to call police because her uncle was trying to sexually abuse her. She gave A.N. her full name and room number at the Quality Inn at 290 Rideau Street in Ottawa. She recalled the address from having heard it mentioned repeatedly during the drive into Ottawa because they lost their way looking for the hotel. At the same time, N.S. texted A.N. that she was in the washroom and would not have much time before having to go back to A.R.. Over the twenty minutes that elapsed from A.N.’s unanswered query, N.S. explained that this was when A.R. first told her to turn to face him on the bed then turned her around physically himself and cuddled and touched her breast above and then below her T-shirt. At this point in her evidence, N.S. quietly looked down and said “I just need a second.” It appeared her distress in recounting this incident was genuine. Her evidence had the ring of truth. Approximately 18 minutes later at 4:28.14 a.m., N.S. testified that she texted A.N. to say that A.R. had fallen asleep. Twelve minutes later at 4:40.54 a.m., she texted A.N. to advise him that police had arrived. At 4:44 a.m., while waiting in the stairwell during the arrest of A.R., N.S. informed A.N. that A.R. had pulled up her shirt and touched her breasts.

92The evidence of A.N. was received through a further admission made for the truth of its contents under section 655 of the Criminal Code. It corroborates N.S.’s evidence as to her on-line friendship on Instagram with A.N., and more importantly, the messages from N.S. beginning at 4:10 a.m. on February 27, 2014 asking A.N. to call police. Since A.N. resided in Toronto, he contacted Toronto Police Services, who in turn contacted the Ottawa Police Services. A.N. neither witnessed nor overheard anything that occurred between N.S. and A.R. He simply contacted police at N.S.’s request. The admission and the contents of Exhibit 4 represent a powerful and contemporaneous account of matters that fall squarely within the timeframe of the alleged events.

93After leaving the washroom to return to the bed, N.S. described how she allowed the iPod which was concealed in her underwear to slip through her pyjama bottom and to fall to the floor half under the bed on the side where she lay. At the preliminary inquiry held on April 28, 2015, N.S. annotated the contents of Exhibit 1 to specify where the iPod had fallen. She pretended the iPod had fallen there earlier. A.R. asked her why she took so long and whether she took her iPod to the bathroom, which she denied.

94After returning to the bed, N.S. explained that she faced the window and pretended to sleep, and that she was under the comforter, but over the sheets. There was no more physical contact with A.R. when she returned to the bed. She waited until A.R. fell asleep before she picked up her iPod from the floor to message A.N. at 4:28 a.m. that A.R. had fallen asleep.

95N.S. testified that when police arrived and knocked loudly at the door, A.R. told her not to open the door but she went anyway to allow police entry.

96N.S. revealed that within hours of returning to Toronto on February 27, 2014, her mother phoned A.R.’s wife to inform her of events. N.S. also spoke to Mrs. R herself and was asked about what happened. N.S. told her very little other than that A.R. had touched her, because she was in a very emotional state at the time.

97In cross-examination, N.S. offered no resistance to the propositions put to her that it would have been hard to lose her father in January 2014; that A.R. was her father’s best friend; that A.R. was very close to her family and indeed that he received the RSVPs for her sister M.’s wedding on August 24, 2013. Out of respect, she called him “uncle.” She agreed that her mother trusted A.R. enough to send her with him to Ottawa. She confirmed that A.R. never touched her nor made inappropriate comments to her on prior occasions. She agreed that there was a large but close-knit South Asian community in Toronto, and that everyone could be expected to know everyone’s business.

98N.S. reiterated how she had gone to A.R.’s home, played with his children and accompanied him on day trips or to political events, including a dinner for Tom Mulcair, and how her sister, M., also volunteered for NDP events. I observe that none of these facts were mentioned in A.R.’s testimony, which in hindsight seemed calculated to put distance between him and N.S.

99N.S. was carefully cross-examined about her memory of the events of February 27, 2014. She agreed that, while she remembered most of what happened, she did not remember every detail. She agreed that she did not pay attention to the conversation between A.R. and her mother on Tuesday, February 25, and she herself did not speak with him until the next day in order to get directions to his home. She also did not recall exactly when she got to his home, but denied that she arrived there at 3:00 p.m. with her homework, rather than late afternoon as she previously testified.

100She confirmed that A.R. was not there when she arrived at his home, and that she did not know, until after he got home and directed her to message for ticket availability, that no pass was arranged for her to see the Aga Khan in Parliament.

101N.S. was firm, however, that A.R. did not tell her that he could not take her to Ottawa. She was firm that she did not insist that Mrs. R convince her husband to take her.

102N.S. agreed that she did not provide police with access to the screenshots in Exhibit 3 illustrating the efforts made to locate a pass to the Aga Khan event for her, until just prior to the preliminary inquiry, as she had not been asked. Her iPod subsequently stopped working, and she then purchased an iPhone. She contacted the company about how to capture the old text messages from her iPod, which she accessed “in the cloud.” It was apparent from this evidence, as it was during her examination-in-chief, that N.S. was knowledgeable on the use of technology and applications on her devices.

103N.S. denied that she made any attempt to manipulate the data related to the date and time stamps of the messages in Exhibit 3, noting that there is no question she arrived at A.R.’s home before midnight and after lunch time on Wednesday, February 26, 2014, despite the time stamps of 11:45 p.m. and 12:29 p.m. This evidence reconciles with the estimated time of arrival in Ottawa at about 3:00 a.m., after which both she and A.R. testified it was clear that no pass or ticket to the Aga Khan event was available for her. N.S. readily conceded that, notwithstanding the erroneous time reflected on the first text message in Exhibit 3, the time stamps of contact with G.A. were correct. While it is possible N.S. was mistaken about the time of her arrival at A.R.’s home, as appeared to be the thrust of this line of questioning, this evidence was peripheral to the main allegations. Moreover, N.S.’s earlier explanation about the problems with TextPlus, an old application that relied upon WiFi access, was not undermined.

104N.S. confirmed that she never spoke with A.N. on the phone until after the charges were laid against A.R. She explained that she initially told A.N. she was 16 when in fact she was only 14, because she had not yet established a name and profile on Instagram. She contacted A.N. later at the request of investigating office, Detective Woods, one to two months before the preliminary inquiry. At this time, they did not really talk about the charged events but exchanged a few minutes of pleasantries in the course of which she notified A.N. that police wished to communicate with him.

105N.S. was pressed about why she contacted A.N. rather than G.A. and her family, when she had G.A.’s son Adam’s phone number. N.S. explained that she felt that the family might be sleeping and instead messaged her sister M. and 911 at the same time she texted A.N., who she knew was awake given her contact with him before A.R. told her to put her iPod away. A.N. responded quickly, whereas her sister did not reply at all. At the time, N.S. did not know that 911 did not respond to text messages.

106N.S. agreed that she did not disclose all her attempts to enlist the help of M. and 911, aside from mentioning this to the “lady police officer” who took her statement at the hotel. After that, police did not ask her and the matter did not come up in conversation. While N.S. agreed that she did not offer this evidence in the course of her videotaped interview by police or at the preliminary inquiry, or at a meeting with Crown counsel and Detective Woods the day before trial, she explained that she only randomly recalled this detail about six months before trial and in speaking with her sister, M., about two to three months before the trial. She did not think this detail was important. I am not satisfied that there was any attempt on the part of N.S. to deliberately conceal the texts allegedly sent to 911 and her sister, and accept that her focus was to disclose the text communications with A.N. which offered corroboration of contemporaneous allegations of sexual abuse against A.R.

107N.S. confirmed that, although she knew of G.A., because her late husband owned The L[…] restaurant on G[…] Street in the heart of the South Asian community in Toronto, she had never met G.A. or her sons and mother before February 26, 2014. N.S. spoke English in conversation with G.A. and A.R. on the drive to Ottawa. She did not speak to them in Urdu. N.S. confirmed that A.R. was not inappropriate with her during the trip to Ottawa, other than to introduce her to G.A. as his biological niece. She accepted the suggestion that, because A.R.’s English was not good, he would have likely replied or conversed in Urdu, although she had no recall of the conversation in the car with A.R. She agreed with the suggestion that A.R. did not specifically say that she was his biological niece, but that her father was his brother. She agreed that while her father was alive, he was “like brothers” with A.R. She conceded that in her cultural community, if persons are very close, they can refer to one another as “brother” or “sister.” On the other hand, N.S. maintained that it was not normal to tell G.A. that she was A.R.’s brother’s daughter, and that it was far more appropriate for him to say she was his best friend’s daughter. She did not correct the misstatement about her relationship with A.R. in the car, because she was uncomfortable about possibly appearing to be disrespectful towards A.R., and was excited and focused on the trip to Ottawa. However, N.S. agreed that when she spoke with police, she added the detail that A.R. introduced her as his biological niece. I accept the implication that N.S. might well have done so to emphasize how A.R. took advantage of their relationship to facilitate his access to her in the hotel room later, but observe that the charged events would have been morally culpable, whether or not perpetrated upon a niece or upon the daughter of A.R.’s late best friend.

108N.S. conceded the peripheral details pertaining to the fact that her mother and A.R. made arrangements for the trip, and that her mother, not A.R., told her to pack a bag. She thus agreed she was mistaken during her videotaped interview in suggesting that A.R. told her to pack her pyjama, and agreed she was also confused about whether arrangements for the trip were made on Tuesday, February 25 or Wednesday, February 26.

109N.S. listed the items she packed for the trip, and was certain she did not pack any Tylenol.

110N.S. explained that, once at the hotel, she was able to access WiFi on her iPod, as she had overheard instructions for the WiFi connection provided to G.A. at the hotel front desk. She assumed from conversation that G.A. had made the hotel reservations, and therefore inputted the first four letters of G.A’s last name and G.A.’s room number before sending texts on KikMessanger to A.N. after 3:01 a.m.

111N.S. appeared sincere in replying to questions about why she chose to text A.N., someone she had never met before for help, rather than text G.A.’s son or make a phone call from her iPod for help. She explained in a most compelling fashion that, she was just 14 and acted quickly and in a state of panic and fear. Although she conceded A.R. had on no prior occasion been violent towards her, and had in fact treated her like one of his own children, she observed that after he sexually assaulted her, he was a different person and she did not know what he was capable of and whether he could get angry and violent. She had on prior occasions seen him become angry and argue and shout at political events.

112N.S. agreed that, in the course of her videotaped statement, she told police she could not recall what A.R. wore to bed, and that it was reasonable to expect that memory of such details would not likely improve with time. She noted that, looking back on some of her answers in the videotaped interview, although she knew she was there to tell the truth, some of her answers were incorrect. She explained that when she gave her statement, she was really tired, had a cold and was very emotional, although she was not seen crying in the video. She explained, as an example, that she did not want to explain to police what a shalwar kameez was, although she recalled what A.R. was wearing, but not the color of the garments. At the same time, she noted that it would have been difficult for A.R. to wear the garments below his day clothes but that it was possible he changed. Again, I find that this kind of omission pertained to peripheral matters, and accept that N.S.’s evidence with respect to such matters could be explained by her condition at the time of her videotaped statement. What is clear, however, is that she correctly disclosed to police that A.R. was clothed in the shalwar kameez at the time he lay beside her in the bed. She made no attempt to embellish or exaggerate the truth by suggesting at any point that he was in a state of undress.

113Although N.S. conceded that she did not tell anyone about being uncomfortable with the sleeping arrangements, she was clear that G.A. wanted her to sleep in her room, but that A.R. insisted she would sleep on the sofa in his room. N.S. agreed that she did not tell G.A. she did not want to go A.R.’s room. She also agreed that she did not email or call her mother or M. about it because A.R. was someone her family trusted and had never been anything but proper with her on prior occasions.

114N.S. also agreed that she was upset to learn she would not go to Parliament, and that the whole point of the trip to Ottawa was to attend the event on Parliament Hill, not to stay in the hotel room, although she did not have the details of the event and only assumed it was to see the Aga Khan. She maintained that she was still excited to be in a new city, and was also told by A.R. they would go out somewhere after the event. N.S. denied that she continued to plead with A.R. to be taken to the event. She conceded that she did not tell police about the plan to go out afterwards, after the event, because she did not understand this detail to be important. I observe, however, that N.S. was clear that she did not tell A.R. that she was upset that she did not get a pass to the event. Similarly, she was clear that she did not raise her voice or say it was unfair or say that she did not want to wait in the hotel room.

115N.S. denied any intentional breach of the publication ban. She was unaware of the ban until the preliminary inquiry, and did not speak with her father’s friend, M.M., who attended the preliminary inquiry. Her mother spoke with him, and she was not present for the conversation. She denied that she or her mother spoke to newspaper reporters about what had happened. It was her understanding that Mr. M.M. contacted a newspaper and that once the story was published it was picked up by other newspapers. Mr. M.M. felt that because A.R. was well known in the South Asian community, it was important for people to be aware of his alleged impropriety.

116N.S. testified that her mother translated the content of the newspaper articles entered in Exhibit 5 because N.S. does not read or write in Urdu, although she speaks Urdu at home. N.S. recalled only that the article said A.R. had sexually assaulted a young girl. N.S. did not tell police about the newspaper articles because Mr. M.M. told her mother about the articles only after they were published and before the preliminary inquiry.

117Although the Defence established that in the year between March 14 and the preliminary inquiry in February 2015, N.S. did not contact Detective Woods to advise him about the articles, a matter which certainly loomed large in A.R.’s testimony, the question of the impact of the publication on A.R. was a collateral matter and I was not convinced by any suggestion that N.S. and her family acted in such a way as to damage A.R.’s reputation.

118N.S. agreed that at no time did A.R. hold her hostage in the room, nor held on to her overnight bag or other possessions. After arriving in the hotel room, washing and changing and conversing with A.R., N.S. testified that about one hour had passed during which she did not try to make up the sofa bed because she did not want to show disrespect while speaking with A.R.. She did not try to make up the bed immediately upon entering the room believing that this would be rude. N.S. disagreed that she was disrespectful by playing on her iPod, as she sent quick text messages and put the iPod down between texts. She was firm that A.R. told her to turn off the iPod and to come to bed in a tone that was angry and louder than usual.

119N.S. agreed that although she was uncomfortable in the bed, she did not try to leave the hotel room or text or call anyone to disclose her discomfort.

120N.S. admitted it made no sense for A.R. to tell her not to tell anyone that she and A.R. were sharing the same room when G.A., her mother and sons knew that they shared a room. However, they did not know she would not be sleeping on the sofa, and would be sharing a bed. She added that A.R. did not want anyone else to know about the arrangements and that members of the South Asian community of which G.A. was an influential member, talked a lot.

121N.S. did not fall asleep in the car, although she tried to. She did not overhear A.R. say he had a headache, nor did she offer him any Tylenol or other pills for the headache. She agreed, however, that when she returned to the bed after texting A.N., A.R. lay on his back with his hand on his forehead. Although she agreed that she may have forgotten to mention these small details, particularly as so much happened in the hours following the events, she was clear he did not mention a headache at any time.

122Similarly, N.S. agreed that while she testified in-chief that she was present when her mother and A.R. spoke about the plans for her to travel to Ottawa, she accepted she likely was not there and in any event had testified in-chief she did not pay attention to any conversation between them. Again, in my opinion, these were but small details peripheral to the key events giving rise to the charges.

123N.S. admitted that, in giving her videotaped statement to police after A.R.’s arrest, she was quite confused about who left the light on in the hotel room and about what side of the bed she and A.R. were facing, but after having time to think about it, she was clear in giving her testimony that while everything happened in the dark, a washroom light was turned on, so that the room was not completely dark.

124In reviewing the details of how she was touched by A.R., N.S. said that A.R. told her to turn around and then helped to turn her around, and that she did not tell him to stop. Although it was suggested to her that access to her left breast would have been impeded by the fact it was nearest the bed, N.S. was consistent in describing how A.R. used his free left hand while lying on his right side to touch her. She said he did not touch her right breast. Her T-shirt was not tucked in, and she agreed the fact she wore a long T-shirt over her pyjama pants would have made it easier to access the right breast rather than the left. However, she reiterated that, at first, his hand was on top of her T-shirt while she faced him and then he went under her T-shirt. She did not pull the T-shirt up, nor did she knot it at her side. She described how the T-shirt was very loose and easy to get under, although it took time to do so. The touching was not preceded by conversation of a sexual nature. She did not push or hit A.R. or scream at him to stop. After about two minutes as he touched her breast and belly, she turned onto her back and he still had his hand on her belly. After about a minute, she decided to pretend her iPod fell and to head to the bathroom.

125N.S. agreed that she did not reach for the phone on her night table or press the emergency button or try to call the front desk. In her re-examination, she testified that she had never before stayed in a hotel room, and did not know what number to call for the front desk or to access another room. Because of the darkness in the room, she could not see the numbers.

126N.S. agreed that, once in the bathroom, A.N. told her to stay there, but she returned to the bed and into the situation that made her fearful. There, she found A.R. asleep and made no attempt to reach others for help because she knew help was on the way.

127N.S. refuted each and every proposition put to her as part of the Defence theory:

That A.R. told her to turn off her iPod as he was tired and had to rise early.
That she slept in the car en route to Ottawa, although in cross-examination she agreed she tried to sleep and closed her eyes in order to listen to music, but never fell asleep.
She disagreed that 15 minutes after telling her to turn off her iPod, A.R. fell asleep when she was still on her iPod. She responded that is was “not correct” that A.R. woke to find her in bed next to him complaining that she was cold. She added in re-examination that she had a sweater and a coat to wear and would have searched for another blanket if she was cold.
She said that it was untrue that A.R. told her that what she had done was not right and that he would have to tell her mother.
She disagreed that this was when he raised his voice to her. She disagreed that A.R. then said to her she was like a daughter to him.
She disagreed that she decided only then to contact A.N. N.S. was firm that she texted A.N. to tell him that she had been sexually assaulted.
She explained that she did not move away from A.R. at first because she was upset and trying to figure out what to do.
She disagreed that A.R. ever offered the bed to her and that she called A.N. when she got upset with A.R. for telling her that he would tell her mother on her.
She refuted the suggestion that A.R. put his jacket on and let her have the blanket and noted that he did not have his jacket on at any point.

128N.S. made no attempt to resist the suggestion that if she slept in the bed with A.R. and even if nothing happened, this would be culturally unacceptable and she would get in trouble with her mother. She also agreed that if it was A.R. who insisted she come to his bed, she would not get in trouble with her mother, although she added that her mother would still not be happy and would not allow her to travel without her again.

129In giving her evidence, there is little doubt N.S.’s memory was imperfect with respect to collateral matters, including the arrangements to secure a ticket for her to see the Aga Khan in Parliament; who directed her to pack her pyjama; the exact times of her departure for and arrival in Ottawa; and who drove to Ottawa at different times. Nevertheless, she was unchallenged and firm in her account of the pivotal circumstances of the charged events. I am satisfied her credibility with respect to the central matters was unimpeached.

Evidence of G.A.

130G.A. testified for the Crown. She presented as an assertive and articulate widow in her early 50s, whose husband passed away two and a half years ago. She divides her time between her family, her occupation as a social worker at R[…] University, and operating her late husband’s restaurant, The L[…].

131G.A. confirmed that it was her first time testifying. However, it was evident that she anticipated the potential that her evidence would be challenged by the Defence. She was wary in her reply to questions, occasionally appeared “testy”, and near hostile to certain propositions put to her by the Defence. Nevertheless, I concluded that her evidence with respect to the core issue pertaining to the sleeping arrangements put in place for N.S. upon arrival at the Quality Inn Hotel in Ottawa on February 27, 2014 was in keeping with the norms she described in the South Asian Muslim community, of which she is a member, and was in that respect unimpeached. Her evidence corroborated the evidence of N.S. and A.R. in that respect as well.

132G.A. testified that she understands the Gujarati dialect of Pakistan, but only speaks English.

133She met A.R., who was “just a friend” of her late husband, and knew him only to say “hello”, when he came to the restaurant.

134She testified that, on Sunday, February 23 or Monday, February 24, 2014, A.R. telephoned her to say that he had had a dream about her late husband, and wanted to meet with her at a McDonald’s near his home. They met on Monday, February 24 or Tuesday, February 25 and just reminisced. In the course of conversation, he said he might be able to arrange for her to see the Aga Khan at Parliament on Thursday, February 27, as he was acquainted with politician Craig Scott, who did the eulogy at the service for her husband. As a member of the Ismaili branch of Muslims, G.A. is a follower of the Aga Khan, while A.R. is not. She, therefore, was enthusiastic to have tickets to the event for herself, her mother and her two sons.

135G.A. recalled that A.R. called her one to two days after their meeting to confirm he had secured tickets to the event, and she reacted with enthusiasm offering to book and pay for two hotel rooms in Ottawa: one for her family and one for A.R., given that A.R. had procured the tickets.

136The day they were to leave, on Wednesday, February 26, 2014, A.R. telephoned her around 7:00 p.m. and asked her whether he could bring his niece, and whether there was any room in her car to bring her along. She replied that he could bring her and that if she came, she could sleep in her room. She subsequently drove to his home, where she briefly met his wife and was introduced to N.S. before they set off for Ottawa.

137G.A. corroborated N.S.’s evidence that they met for the first time in A.R.’s home, and that N.S.’s family knew her late husband.

138She further corroborated N.S.’s evidence that A.R. introduced N.S. as his brother’s daughter. When they were in the car driving, G.A. asked about how A.R. and N.S. were related, and he told her that N.S. was his brother’s daughter.

139She testified that she spoke English to A.R. during the drive to Ottawa as her Urdu has only improved in the last two and a half years working at the restaurant.

140A.R. sat in the front passenger’s seat as she drove, and her mother and two sons and N.S. sat in the back seat of her 2009 Lexus.

141She corroborated N.S.’s testimony that, en route to Ottawa, A.R. spoke at length about a friend of her late husband. Consistent with N.S.’s expectations about the trip to Ottawa, G.A. also recalled that A.R. told her he was not able to secure a ticket to the Aga Khan event for N.S., but that N.S. might be doing some sightseeing while they were at Parliament. G.A. was unsure about N.S.’s reaction to the fact that she would not be attending the event at Parliament.

142G.A. corroborated N.S.’s evidence that, when they arrived in Ottawa, it was very late and they became lost trying to find the hotel.

143G.A. testified that when they arrived at the front desk to check in at the hotel, she asked the clerk how many beds were available in the room assigned to A.R., and learned that there was one bed and one sofa. She then asked A.R. if he wanted another room for N.S., and he declined. It “went through her head” that they should get another room because of N.S.’s gender. She also asked if A.R. wanted N.S. to stay with her, her mother and two sons in their room, and once again he declined, stating that N.S. would sleep on the sofa in his room. She thought this was odd, but then made nothing more about it because N.S. was his niece.

144G.A. admitted she did not know whether the couch in A.R.’s room was a regular couch or a pull-out couch. She knew there were two double beds in her room, however.

145After retrieving their luggage, she and her family members went to their room and went to bed. She did not see A.R. again after that. She subsequently awoke to police banging on her hotel room door. Police later brought N.S. to her room and she recalled how scared and traumatized N.S. looked.

146In her cross-examination, G.A. was shown the brief note of Detective Steve Cashen, which was attached to an admission made pursuant to section 655 of the Criminal Code for the truth of its contents. The admission reveals that Detective Cashen monitored an interview of G.A. by Detective Woods on February 27, 2014, lasting about 20 minutes. Detective Cashen believed the interview was being audio and video recorded and, therefore, only took brief notes of the interview. His notes were not a verbatim account of the statements of G.A., only a summary of what he heard, in his own words. He did not have an independent recollection of the interview.

147G.A. was asked to comment about the relationship between her late husband and A.R. Detective Cashen’s notes suggested that she informed Detective Woods that A.R. was a really good friend of her husband. She testified that she told Detective Woods that they were “simply friends” who would go to political events together. Her husband only mentioned A.R. in relation to Pakistani Independence, the Consulate and the NDP party.

148G.A. was asked to agree that she and A.R. had a friendly conversation at the McDonald’s. She said that “friendly” was a subjective term, but that they sat having a conversation and spoke about the Aga Khan in a friendly tone. He offered to arrange tickets to the event at Parliament and she was excited to accept. Because A.R. got the tickets the day before the event, she thought it would be a nice gesture to book and pay for the hotel rooms. While G.A. agreed that there has been a lapse in time since the charged events, she did not fully accept the proposition that her memory of matters was better after the events then it was at the time of trial. G.A. noted that it could depend on the question; that sometimes memory improves with time. She declined to accept the general proposition, noting that it was “subjective”.

149G.A. agreed that she met Crown counsel and Detective Woods before the trial, but noted that they did not talk about the case. They only discussed trial procedures. She was not given any statement to review and did not read the brief note of Detective Cashen until it was offered to her for review by Defence counsel, 10 minutes before her cross-examination.

150G.A. was adamant that she did not discuss the case with Crown counsel or Detective Woods, noting that because she is a social worker, she assumed she should not discuss the case outside of the courtroom.

151She did not corroborate A.R.’s evidence that he drove most of the way to Ottawa. She estimated that she drove all but one and a half hours, and recalled that when A.R. drove, she sat in the front passenger seat. She corroborated N.S.’s evidence that N.S. did not sleep in the car en route to Ottawa.

152She also corroborated N.S.’s evidence that they stopped at a Tim Horton’s but did not make a lengthy stop.

153She denied any conversation en route about the purpose of the trip to Ottawa, that having been discussed before they left. All she knew was that N.S. was introduced as A.R.’s niece and that she was not likely to get a ticket to the Aga Khan event. She did not discuss the matter further with N.S. because she understood N.S. would be sightseeing.

154G.A. agreed that N.S. never told her that she was not A.R.’s niece. She described N.S. as a “quiet girl” who was “just there”. She noted N.S. was pleasant, smiling and talking to everyone in the car. She noted no problems with raised voices between N.S. and A.R. in the car.

155G.A. was challenged about the evidence she offered in examination-in-chief that she would have offered to accommodate N.S. in her room, as there were already four in her family, and only two double beds in the room to accommodate five people if N.S. joined them. She retorted that N.S. would have shared a bed with her mother; she and her littlest son would have taken the other bed, and she would have asked for a roller bed for her eldest son, Adam, who was 13 at the time. She reiterated, however, that A.R. said that N.S. would sleep on the sofa in his room.

156G.A. argued with Defence counsel about the entirely collateral question of whether the hotel clerk gave her two room keys and to whom she gave the second room key. Although she could not recall this detail, she bristled over the proposition put to her that she failed to answer the question because she had no memory of the events at check-in. She replied by noting she did not have a lapse in memory, just did not consider the number of room keys an important detail. She testified that she only took a mental note about the “room situation” and was happy to hear N.S. would sleep on a couch in A.R.’s room.

157G.A. vigorously disputed the suggestion that she discussed the allegations with N.S. when police brought N.S. to her room to wait until N.S. was later taken to a safe place by the Children’s Aid Society. G.A. noted that, as a social worker, she is trained not to further traumatize by asking questions of someone who is in a state of shock. She noted N.S.’s body language and concluded that she was very frightened and clearly traumatized. G.A. only asked N.S. if she was warm and if she needed something to drink.

158G.A. was referred to the notes of Detective Cashen which suggested that she had no apprehension about where N.S. would sleep on arriving at the hotel. She reiterated the fact that Detective Cashen’s notes did not record what she said to police. She was “98% sure” that she would never have used the word “apprehension”, noting that she was concerned enough to ask A.R. about getting a third room for N.S., which he declined. When she heard that N.S. was to sleep on the couch in A.R.’s room, she felt better about the situation and did not insist N.S. sleep in her room.

159G.A. testified that, had she known that N.S. was to be in the same bed, this would have “irked” her “in terms of the cultural dynamic”, noting that N.S. would feel uncomfortable sleeping with her uncle.

160G.A. testified that she did not have any direct contact with A.R. after February 27, 2014. When she picked up her brothers-in-law from the airport, one and a half years ago, they saw A.R. and went over to say hello. She did not. She confirmed that her restaurant manager asked A.R. for tickets for her brothers-in-law to see the Aga Khan in September 2014. She had no contact with A.R.

161G.A. confirmed that she spoke to A.R. in English at the time of the charged events, as she does not speak Urdu, and that she was able to understand all of A.R.’s English. She said that although he spoke with an accent, she did not tell Detective Cashen that A.R. was hard to understand, particularly as she speaks to a lot of newcomers and is sensitive to the language ability of newcomers. She noted that A.R., however, was not a newcomer to Canada.

162G.A. denied having any contact with N.S. since the charges were laid against A.R. N.S. and her family came to her restaurant in 2016 and she did not even recognize N.S. at first. N.S.’s sister said “hello”, after which she dropped by their table only to greet them. At the time, she only told N.S. she would be coming to Ottawa. It was not a time or a place to talk and N.S. asked her no questions.

163G.A. ended her testimony by saying that, “as a human being”, she felt sympathy for N.S. when she saw the look on her face on February 27, 2014, after A.R.’s arrest. She said it was a look she will never forget.

Evidence of Constable Kristina Correa

164Constable Correa also testified for the Crown. She was the first police officer dispatched to the Quality Inn Hotel at 290 Rideau Street at 4:25 hours on February 27, 2014, after Toronto Police alerted Ottawa Police about a young girl locked in the bathroom of a hotel room who had reported that her uncle was trying to have sex with her. Together with Constable Schultz, whom she met in the hotel lobby around 4:34 a.m., they knocked at Room 917 where they were told they would find A.R. and N.S.

165After A.R. opened the door to them wearing a beige pyjama top and bottoms, she noted a young girl stood behind him and estimated her age to be much younger than 16 years. She described the demeanor of the girl, noting that she held a cell phone below her ear and that her eyes were wide open and that she had tears in her eyes. She appeared to be very shaken up. She took N.S. out into the hallway to ask her what happened. After speaking with her, she returned to Room 917 and placed A.R. under arrest.

166Constable Correa also described A.R.’s demeanor. She recalled that, when placed under arrest, he kept telling her he had an important event to attend at the legislature in the morning that he could not miss it. She described how he began to “fake cry”, in that he made crying sounds and then abruptly stopped and looked at her with no tears in his eyes.

167Before taking A.R. to her cruiser, she placed A.R.’s black jacket around his shoulders.

168Constable Correa observed the room had a standard hotel bed with pillows, bed sheet and comforter which were disrupted. It looked to her as though people had slept in the bed. She did not see blankets only on one side of the bed. She recalled that the pillows were at the top of the bed where they would normally be. There were no pillows down the middle of the bed. The room also had a standard couch. It could have been a pull-out couch but it was not pulled out.

169In cross-examination, Constable Correa acknowledged the importance of note-taking as a police officer. She appropriately conceded that her memory of the material events was fresher two years ago than it was at trial. She made notes shortly after the incident, including an Investigative Action, as well as a “will say” statement the same day. Constable Correa did not make a diagram depicting how the bed looked or how the sheets were arranged on the bed. She agreed that she was asked by the investigating officer, Detective Woods, to prepare a follow-up Investigative Action noting what A.R. was wearing and the state of the hotel room. She prepared the follow-up Investigative Action on February 28, 2014, which offered the information that the bed had a comforter and pillows and appeared slept in. Further, while she did not specifically note where the pillows were, she recalled they were where you would expect them to be at the head of the bed. There was nothing odd about their placement. She had an independent recall that the bed appeared as it would when people have slept in it, with the bed coverings folded over, as one might do to go to the door of the hotel room.

170She did not make a note about the size of the bed, and simply stated that her memory was that nothing stood out about it as odd or different from what she would expect to see in a hotel room.

171Constable Correa did not take note of sheets or comforters on the sofa and did not open up closets for other bedding.

172In re-examination, Constable Correa explained that she retained an independent memory of events because, as a police officer of four years largely assigned to patrol the market area, she is dispatched to a lot of bar fights, the memories of which blend one into the other. On the other hand, her dispatch to the Quality Inn to respond to these circumstances was notable and stood out. She especially recalled N.S.’s face and how shaken up and upset she was.

Analysis

173In applying the analytical framework dictated by W. (D.) to the evidence of A.R., the Defence urged me to consider the shortcomings of the interpretation offered to A.R. in the course of his interview by police. It was observed that the Languages of Life interpreter assisting at all material times was not accredited in the Pakistani Urdu dialect, but spoke Punjabi and at times Hindi, when A.R. only knew some Punjabi. In listing the shortcomings of the interpretation, Defence counsel first pointed to the fact that there could have been conversation between A.R. and the interpreter before the police interview began, and suggested that A.R. may well have been compelled to rush through his police interview in order to attend the Aga Khan event. However, I find that A.R.’s evidence made it plain that the Aga Khan event on Parliament Hill had already taken place before the police interview began and the police interview took place the day before another such event was to take place in Toronto, as A.R. only revealed during cross-examination. I, therefore, reject any suggestion this was a factor explaining the tangle of inconsistencies in A.R.’s evidence at trial. This factor did not in any way raise any reasonable doubt in my mind about the crimes alleged in these proceedings.

174Secondly, the Defence quite properly advanced the point that the interpreter offered poor translation of the charge of unlawful confinement. At page 3 of Exhibit 7, the transcript reflects that the interpreter not only translated some part of the charge using English words, but offered a translation that was clearly incorrect. Had Crown counsel not withdrawn the charge of unlawful confinement contrary to section 279 of the Criminal Code in the course of trial, I would have been inclined to acquit A.R. on this charge not only due to the paucity of evidence in support of this charge, but also due to the very obvious flaws in the translator’s description of the charge of unlawful confinement.

175Thirdly, the Defence also pointed to the fact that at p. 26 of the transcript of A.R.’s police statement in Exhibit 7, the interpreter used words never uttered by A.R., who instead used his hands to illustrate the pillow placement on the bed.

176However, I would observe that A.R. was afforded an accredited translation of the police interview, including the question pertaining to where N.S. slept in the hotel room, which was the subject of a formal admission as to the authoritative nature of the translation. I find this, coupled with the evidence A.R. gave at trial, leaves no doubt that he both understood the question and its importance. His evidence about pillow placement and where he and N.S. slept was neither truthful nor left any doubt based on the degree to which he offered discrepant and confusing explanations at trial alone.

177Finally, while quite properly acknowledging the discrepancies in A.R.’s evidence, the Defence urged me to consider the possibility that poor translation was wholly or partly to blame for the inconsistencies as to where N.S. was sitting or lay in relation to A.R.’s bed at any material time, given his evidence that N.S. sat on the bed at one point and was very near or hovering near him when he claimed she woke him to advise him that she was cold. The Defence submitted that this, coupled with his consistent denial that N.S. was in his bed or that he touched her sexually in any way at any time, was sufficient to raise a doubt.

178Respectfully, I cannot accede to this line of argument. I find A.R. was neither truthful nor did his evidence leave me in any doubt as to his guilt in relation to the sexual assault upon or sexual interference with N.S. I find his credibility was irreparably undermined in the course of his evolving version of events, only the first of which was offered to police in the recorded statement and about which the Defence has raised concerns about translation. The frailties of translation do not account for his contradictory evidence at trial. In any event, I have already found that in his police statement at pp. 24 to 27 of Exhibit 7, I am satisfied beyond reasonable doubt that A.R. was asked the simple question as to where N.S. slept and he responded without apparent urgency or confusion that she slept on the same bed. I am satisfied that A.R. illustrated how he placed pillows down the middle of the bed and demonstrated using his hand that N.S. slept on the left side and he slept on the right side of the bed. In this version of events, A.R. never mentioned the verbal exchange he had with N.S. in a raised voice before police arrived. He never mentioned that N.S. slept on the sofa or made her bed there.

179In the second version of events offered by A.R. during his examination-in-chief on April 11, 2016, as appears at pp. 43 to 46 of the related transcript, A.R. testified that he went to sleep and woke up to find N.S. on his bed, whereupon he became upset with her. Again, he failed to mention N.S. made a bed for herself on the sofa.

180In the third version of events offered by A.R. in cross-examination on May 24, 2016, he emphatically suggested N.S. was never on his bed; that she put a pillow and blankets on the sofa earlier in the evening; that when she woke him to announce that she was cold, she hovered near him but was never in the bed. Faced with the discrepancies between his evidence in-chief and his cross-examination, A.R. tailored his evidence to suggest that N.S. first sat on the bed at some point and later hovered near the bed.

181I am satisfied that no fragment of truth or common sense may be extracted from A.R.’s attempt to explain the vertical motion of his hand illustrating more than once the pillow placement down the middle of the bed coupled with his clear statement that N.S. was “on the same bed.”

182I wholly reject his evidence that by his illustrations A.R. meant N.S. was on the sofa to his right, when he made no mention of couch or sofa in this part of the police interview. I wholly reject his evidence that this is in part the fault of the Languages of Life translator – when through counsel he admitted authoritative translation of his own words in Urdu that N.S. slept “on the same bed” and that he “kept the pillows here, here.”

183Similarly, his explanation as to why he was angry at N.S., who he maintained at no time slept with him in the same bed, and consequently what if anything he would report to her mother as impropriety on the part of N.S., made no sense and defied all logic. A.R.’s evidence implied that by hovering over him, and claiming to be cold, the youth he described as a respectful 14-year-old girl, wanted to be in bed with him for a nefarious purpose, namely to be touched by him. I find this evidence was as close as A.R. determined he could travel in the vicinity of the truth in relation to the fact that he slept in the same bed as N.S. and subsequently touched her in a sexually inappropriate manner, knowing this was unacceptable according to his own customs and beliefs and indeed knowing it was inappropriate by any standards.

184In short, insofar as the first and second branches of the W. (D.) analysis are concerned, I find the discrepancies noted in the evidence of the accused as I have extensively reviewed it persuade me his evidence is unworthy of belief and further leaves me in no doubt as to his guilt on the outstanding charges.

185The Defence urged me to find a reasonable doubt as to A.R.’s guilt on the outstanding charges, based upon certain frailties in the evidence of N.S.; to reject the corroborative components of G.A.’s evidence as less than credible and exaggerated in some respect, and biased or less than impartial in other respect; and to discount the corroborative evidence of Constable Correa as somewhat less than satisfactory due to her failure to make more detailed notes and diagrams of her observations in the course of investigating this case.

186Insofar as the evidence of N.S. is concerned, the Defence noted that despite N.S.’s apparent intelligence revealed in the course of articulate testimony she offered at trial, I should nonetheless find cause to conclude it is sufficiently flawed by inaccuracies, exaggeration, and lack of expert opinion in relation to the text messages in Exhibits 3 and 4, as to fail to rise to the standard of proof beyond reasonable doubt of the charged offences. In addition, the Defence adds that the demeanor of N.S. in her police interview should lay in question the observations made both by G.A. and Constable Correa as to N.S.’s traumatized and tearful presentation at the time of A.R.’s arrest.

187While I have considered the potential that N.S. may have spoken with family members about things she had not personally observed, she satisfied me that her testimony as to the material elements of the outstanding charges was based only on what she herself knew, and where this was not the case, she made appropriate concessions. I am also satisfied that her evidence about whether and when she knew she would be staying in Ottawa overnight; whether and when she knew there was no ticket for her for the Aga Khan event on Parliament Hill; and whether or not she failed to mention during her police interview that she recalled A.R. was wearing a shalwar kameez to bed, related to inconsequential or peripheral matters that did nothing to shake her evidence about the material events. Similarly, the discrepant time stamp on the text messages on KikMessenger in Exhibit 3, which were offered only to corroborate the timelines about when N.S. arrived at A.R.’s before departing for Ottawa and when she would have messaged G.A., although unsupported by expert evidence and not produced until after the preliminary inquiry of April 28, 2015, do not appear to me selectively screened on their face, and simply offer details of a peripheral nature that do not undermine N.S.’s overall credibility. I find these are the very kind of details to which the leading authorities caution against attributing undue emphasis when evaluating the evidence of young witnesses, particularly where the witness is unshaken in the material points: see W. (R.), at pp. 132-134; and see B. (G.), at p. 55.

188Insofar as concerns the contents of Exhibit 4, which include N.S.’s text messages with A.N., although these texts were not offered for their truth but only to corroborate the timelines of N.S.’s evidence as to when she was in contact with A.N. and when their text exchange was interrupted by the charged events, the Defence submitted that N.S.’s failure to leave the hotel room and go to G.A.’s room or to try to telephone her or 911, and her decision to reach out to A.N. for help, a man she had never met other than on Instagram, made no sense. However, N.S. offered a plausible explanation for contacting A.N. Because she had been in text communication with him about being in Ottawa before A.R. told her to turn off her iPod, she correctly assumed that A.N. would be awake around 4 a.m. and capable of calling for help and alerting police. She also explained that given her fear of A.R.’s reaction if she tried to telephone out for help, she did not use her iPod to phone G.A. or 911 while she was in the washroom. In any event, she required headphones for her iPod in order to make calls out and these were left in her overnight bag and out of reach, near the accused. I further accept N.S.’s testimony, as a 14-year-old who had never travelled outside of her home town and who had never been in a hotel room overnight, that she did not know what numbers to use on the bedside table phone to contact another room for help.

189I am also mindful of the fact that N.S. did not recall until cross-examined that she had attempted to text 911 and her sister M. for help and, therefore, failed to notify the police or inform the court about these texts at the preliminary inquiry. However, the explanation she offered at trial, that she only told police about the efforts she made which succeeded in securing police assistance, made perfect sense and speaks to the less-than-sophisticated and less-than-detail-oriented testimony of a young person as opposed to the more comprehensive thinking one might expect from an adult.

190Finally, I did not perceive N.S.’s demeanor in her videotaped statement as necessarily inconsistent with the description of a tearful, traumatized 14-year-old observed by G.A. and Constable Correa. By the time N.S. attended at the police station to give a recorded statement, she was in the safety of police; she had been without sleep for over 24 hours; and was suffering the ill effects of a cold. Whether or not N.S. cried in the course of the recorded interview would hardly preclude the traumatized state earlier observed by G.A. and Constable Correa and indeed the state N.S. herself described as she tried to determine how best to assist herself as she lay beside A.R. and determined that she would have to get help. A complainant, particularly a youthful complainant, could not be expected to exhibit perfectly methodical and choreographed planning under the circumstances.

191I further find that N.S.’s behaviour in returning to the bed after texting A.N. for help, so as not to raise A.R.’s suspicions that police were on their way, can hardly be viewed as inconsistent with the behaviour of a young victim of sexual assault who no longer knew what her assailant was capable of after he assaulted her. Indeed, such reasoning might conform to stereotypical reasoning as to the conduct of such complainants. In any event, it appears N.S. correctly anticipated that her behaviour could raise A.R.’s suspicions as she testified that A.R. confronted her about whether she had been on her iPod when she returned to the bed.

192I find that the time stamps in the text messages in Exhibit 4 also corroborate N.S.’s testimony about the unfolding of key events, including:

(i) Her initial communication with A.N. after she arrived in the hotel room and before A.R. told her to turn off her iPod between 3:01 and 3:47 a.m.;

(ii) The gap of time between 3:47 and 4:10 a.m. when no texts were exchanged with A.N. and when N.S. testified that she was sexually assaulted by A.R.;

(iii) N.S.’s subsequent texts to and from A.N. relating to her call for help between 4:10 and 4:28 a.m.;

(iv) N.S.’s return to bed at 4:28 a.m. and her feigned discovery of her iPod which she had earlier told A.R. she had mislaid by the bed. N.S. testified she had already returned to the bed when A.N. texted her at 4:30 a.m. telling her to stay in the washroom until police arrived. In any event, when she resumed texting A.N., she noted this was done after A.R. fell asleep;

(v) Police arrived 10 minutes later, at 4:40 a.m.

193I conclude that, overall, N.S. was a careful and credible witness who had no motive to concoct a story about being sexually assaulted by her late father’s best friend. It defies reason that, given the social mores with which she had been raised and about which she testified, and indeed the standards of behaviour which A.R. acknowledged in his own testimony, N.S. would climb into bed with the accused and then concoct the allegations in response to A.R.’s threat to call her mother.

194I also find that N.S.’s upbringing and deferential nature prompted her to obey A.R. when he told her to turn off her iPod and get into bed with him. Her explanation that she was concerned about offending him when he raised his voice with her after her initial resistance was very credible. I noted N.S.’s momentary lack of composure before she recounted the details of the sexual touching.

195Applying the reasoning in W. (R.) at pp. 132-134 as to the treatment of evidence from a young person, I note that when N.S. acknowledged initial confusion about whether she lay on her left side or right side when turned to face the accused in bed and when he touched her first above and then below her clothing, she was only a 14-year-old offering information to police about a distressing event after having no sleep for over 24 hours. However, by the time N.S. gave evidence at trial, she was 16 years old and showed no hesitation in describing what breast was fondled at the hand of the accused, particularly when the mechanics were put to her by Crown counsel in easier terms, those being by reference to her side or his hand being closer or further from the bed. Despite vigorous cross-examination at trial, N.S. was not shaken in her account of the sexual touching by A.R. as she lay in the bed next to him.

196I am also satisfied that the evidence of Constable Correa and G.A. served to corroborate N.S.’s evidence on pivotal points. While Constable Correa did not make detailed notes of her observations on arrival at the hotel, as a professional and impartial witness, trained to observe, I accept her evidence that the case stood out in her memory as she had for the better part of her four years as a police officer been assigned to the market area to deal with bar fights. She contradicted A.R.’s evidence and corroborated N.S.’s evidence that the sofa in the hotel room was on the left side of the bed when you stand at the foot of the bed. She also testified that there were no other beds in the hotel room and that nothing stood out in respect to the pillow placement and bed linens on the one bed in the room. Notably, Constable Correa did not mention the sofa made up as a bed or the pillow and blankets on the sofa as described by the accused.

197The testimony of G.A. also served to corroborate N.S.’s evidence about sleeping arrangements made for her by A.R. when they checked in at the hotel. Although her evidence was vigorously tested for any bias in favour of the complainant, and it was plain from her guarded and occasionally hostile responses that G.A. took exception to any suggestions that she discussed her evidence in advance of trial with Crown counsel and the police, I am satisfied that G.A. had no motive to favour either the complainant or the accused. She only met N.S. for the first time on the trip to Ottawa and briefly at a later occasion in her restaurant in 2016. Moreover, G.A. is also a trained professional and as a social worker was of the view that any questioning of a complainant about the circumstances of a sexual assault could re-traumatize a victim. Therefore, G.A. refrained from questioning N.S. on the night of A.R.’s arrest. G.A. was also of the view that it was important not to discuss her evidence about the case outside of the courtroom.

198I am also satisfied that, although G.A. may not have had a perfect recall of events and conditions of the driving to Ottawa and other details such as how many room keys were furnished by the front desk for A.R.’s room and to whom, I accept G.A.’s testimony that, as a woman of Muslim background and upbringing, it would have been unacceptable to her that N.S. slept in A.R.’s room unless she was satisfied that N.S. would be sharing a room with a close relative and would be sleeping on the sofa, and not in the same bed as a 48-year-old man. I am satisfied, because of the cultural and religious norms of her community, G.A. would recall important details to the effect that A.R. introduced N.S. as his brother’s daughter and as his niece. G.A.’s evidence was in line with the testimony of N.S., who said she was introduced to G.A. as A.R.’s biological niece, or with words to that effect. G.A. did not corroborate A.R.’s evidence that N.S. was introduced as his best friend’s daughter.

199G.A. also recalled the conversation in the hotel lobby at check-in when she learned that there was only one bed in the room assigned to A.R. and, as such, G.A. offered to book another room or arrange the two beds and a sleeping cot in her own room to accommodate N.S. G.A. corroborated N.S.’s evidence that it was A.R. who insisted N.S. sleep on the sofa in his room. I find that she vigorously and credibly denied the notion that she would have insisted N.S. sleep in A.R.’s room.

200Both Constable Correa and G.A. described N.S.’s wide and teary eyes as part of her traumatized demeanor at the time of or shortly after A.R.’s arrest. I accept the description of N.S.’s emotional condition as circumstantial evidence corroborative of N.S.’s own description of her state of mind when attempting to devise plans to extricate herself after being sexually assaulted by A.R.. This demeanor evidence, coupled with the evidence provided at trial by N.S., G.A. and Constable Correa about N.S.’s condition at the time of A.R.’s arrest, was not seriously challenged and in my opinion was capable of corroborating the truth of N.S.’s account: see R. v. R. (N.), 2016 ONSC 2009, at paras. 19 and 20.

201Applying the reasoning expressed by the Court of Appeal in J.J.R.D., at para. 53, and having determined the evidence of A.R. including his denial of all sexual impropriety to be wholly unreliable and lacking in credibility, I conclude that the evidence of A.R., stacked against N.S. with the evidence of the timeline of text messages in Exhibits 3 and 4, and the corroboration of her evidence and demeanor by Constable Correa and G.A., leaves me in no reasonable doubt as to the guilt of A.R..

Conclusions

202For the reasons provided, I have rejected the evidence of A.R. and determined that it raises no reasonable doubt as to his guilt in relation to the outstanding charges. I accept the evidence of N.S. as corroborated by Constable Correa and G.S. and am left in no reasonable doubt as to the commission of the offences by the accused.

203I am also satisfied beyond a reasonable doubt as to the absence of any motive to lie on the part of N.S. or any credible defence suggested by the accused at trial.

204As such, I find A.R. guilty of the sexual interference with and the sexual assault of N.S., contrary to section 151 and section 271 of the Criminal Code, as set out in counts 2 and 3 of the Indictment: N.S. was 14 at the time of both offences and A.R. knew she was a minor. There is no evidence to suggest the touching over and under N.S.’s clothing was in any way an accident. A.R. touched her for a sexual purpose and ordered her not to tell her mother afterwards.

205As discussed in the course of submissions, Crown counsel will bring a Kienapple application in respect of one of the two sexual offences which I find have been proven beyond a reasonable doubt.

206Finally, as was also discussed in the course of submissions, the first count in the Indictment which refers to the charge of unlawful confinement contrary to section 279 of the Criminal Code, is withdrawn at the request of the Crown.

Madam Justice Toscano Roccamo

Released: November 15, 2016