Court File and Parties

CITATION: R. v. Nakogee, 2017 ONSC 4885

COURT FILE NO.: 15-SA5106

DATE: 2017/08/16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

RANDALL NAKOGEE

Accused

COUNSEL:

Caroline Thibault, for the Crown

Natasha Calvinho, for the Accused

HEARD AT OTTAWA: June 12, 13, 14, and 19, 2017

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

REASONS FOR JUDGMENT

CORTHORN J. (orally)

[1] Mr. Nakogee is charged that on or about the 19th day of May, 2015, at the City of Ottawa in the East Region, he did:

a) Commit a sexual assault on the complainant (“C.J.”), contrary to section 271 of the Criminal Code, R.S.C. 1985, c. C.46; and

b) With a part of his body, for a sexual purpose, directly or indirectly touch the body of a person under the age of sixteen years, the complainant C.J., contrary to section 151 of the Code.

Overview

[2] Mr. Nakogee was not known to C.J. prior to May 19, 2015. He encountered C.J. walking in the downtown core during the afternoon. Mr. Nakogee and the complainant spent several hours together before the complainant was identified and picked up by the police as a girl who had been reported by her parents as missing.

[3] In summary, it is alleged that during the time spent with C.J., Mr. Nakogee:

a) Masturbated without the complainant’s consent; forced her to watch him by grabbing her hair; and attempted to ejaculate on her face; and

b) Without the complainant’s consent, pinned her onto her back, pulled her pants down, and performed oral sex on her.

[4] C.J. turned 13 years old approximately six weeks prior to May 19, 2015. She gave a videotaped statement to the police on May 26, 2015. C.J. also testified at trial. She was 15 years and 2 months old at the time. C.J. recalled giving the videotaped statement; confirmed that she was telling the truth when she gave it; and adopted the videotaped statement as her evidence. The statement was admitted in evidence pursuant to section 715.1 of the Code.

[5] The evidence at trial is from C.J., her mother (“C.S.” or “the mother”), Cst. Bargh (the police officer who picked up C.J. in the downtown core on the night of the 19th of May), and Cst. Hafizi (on the basis of the contents of his Investigative Action Report—“IAR”). Cst. Hafizi did not testify at trial. Portions of his IAR were admitted as evidence by way of an agreement between the Crown and counsel for Mr. Nakogee. The only other Crown witness was Nicole Vachon, an expert in DNA analysis.

[6] As is his right, Mr. Nakogee chose not to testify at trial. No evidence was called on his behalf. His denial of C.J.’s version of the events is inferred.

[7] Although no evidence was called on Mr. Nakogee’s behalf, defence counsel (whom I shall refer to as “counsel” throughout the balance of these reasons) asks me to find that Mr. Nakogee believed that C.J. was at least 16 years old as of May 19, 2015 and, as a result, Mr. Nakogee is not guilty of the offence of sexual interference pursuant to section 151 of the Code.

[8] The outcome of both charges turns in large part on the credibility and reliability of the complainant’s evidence and of the evidence of the mother. Counsel points to inconsistences in the evidence of both witnesses. Counsel argues that the inconsistences are not inconsequential; the inconsistencies, when taken as a whole, are said to be such that the Crown’s evidence does not support a finding of guilt on either charge.

[9] In addition, it is submitted that the complainant fabricated the events giving rise to the charges, motivated by her desire to avoid the consequences of or punishment for her behaviour on the afternoon and evening of May 19, 2015.

[10] Counsel requests that Mr. Nakogee be acquitted of both charges.

[11] The Crown’s position is that there is simply no air of reality to the arguments advanced on behalf of Mr. Nakogee. The Crown describes Mr. Nakogee as well-aware that he was dealing with a vulnerable young girl. The Crown highlights that C.J. was unshaken in her evidence as to the events giving rise to the charges.

[12] The Crown asks me to find Mr. Nakogee guilty of both offences.

The Evidence

a) The Complainant’s Evidence

[13] As of May 2015, C.J. was a grade 7 student at a high school in the Orleans area. On the afternoon of May 19, she intended to leave school with a friend prior to the end of the school day. C.J.’s friend was caught and therefore did not skip school as planned. C.J. skipped the balance of the school day in any event.

[14] C.J.’s evidence as to why she left school was that she was upset and angry. She did not want to be at the family home that evening because she and her parents were scheduled to meet with a representative of the Children’s Aid Society. The Society had intervened in the family situation because C.J. had some time earlier disclosed to her counsellor an incident in which she suffered physical harm as a result of her father’s conduct. C.J. had described to her counsellor being struck by him several times on a single occasion.

[15] After leaving school, C.J. took two OC Transpo buses and arrived in the downtown core, somewhere near the Rideau Centre, in the mid to late afternoon hours.

[16] C.J. found a place to change out of the skirt for her school uniform to a pair of grey sweat pants. She was uncertain whether she changed from the top of her school uniform. She placed her skirt and, if changed, her top, in the backpack she was carrying.

[17] I note that photographs were taken of the clothing ultimately seized from C.J. The top shown in the photographs is a turquoise, scooped-neck t-shirt. It is not in keeping with a school uniform.

[18] C.J. went to a Shoppers Drug Mart and shoplifted a number of items including food, a toothbrush, notebooks, and a bottle of Tylenol or Advil pills. She walked around the downtown core for a number of hours.

[19] C.J. encountered Mr. Nakogee in the area of the bridge on Wellington Street between the Chateau Laurier and Parliament Hill. I pause to point out that the complainant could not, even as of the date of trial, identify landmarks or streets by name; she was able to identify the bridge as the one which travels over the Rideau Canal in the area of the locks adjacent to Parliament Hill.

[20] Mr. Nakogee asked C.J. if he could walk with her. The two began walking together and travelled to the path beside the locks and the Ottawa River, the latter at the back of the Parliament Buildings. Mr. Nakogee told C.J. that he wanted to show her something in the wooded area up the hill from the path. The area to which they walked was remote from the path and from any stairway leading from the path to Parliament Hill. The complainant described the area as, “deep so no one could really hear or see any of us.”

[21] Mr. Nakogee seemed normal to the complainant in the time spent walking with him and for some time, as much as 20 to 30 minutes, while they remained in the wooded area on the hillside.

[22] Mr. Nakogee then began to act “weird”, including that he asked the complainant if she was interested in doing sexual “stuff” or “things”. The complainant responded that she did not want to do so.

[23] C.J. testified that despite her negative response, Mr. Nakogee began to masturbate. She did not want to look at him as he did so. Mr. Nakogee grabbed the hair on the right side of C.J.’s head. Mr. Nakogee forced C.J. to watch him as he masturbated. Mr. Nakogee told C.J. that he wanted to ejaculate on her face. She did not want him to do so. C.J. was able to forcefully pull away. C.J.’s evidence was that the ejaculate landed on a stick on the ground beside where she was sitting.

[24] C.J. testified that Mr. Nakogee next pinned her down lying on her back, with her backpack behind her. Mr. Nakogee then removed C.J.’s pants—despite her telling him to stop. C.J. described being so scared that she did not do much in an effort to stop Mr. Nakogee, other than to tell him to stop.

[25] In the videotaped statement, C.J. described the oral sex occurring as follows:

… once he pulled my pants down he, um, started, um I don’t know what the word is for it. He grabbed his mouth and he started doing stuff down there. Um, and after that um, I kind of like was so scared I think that I just like blanked out for five minutes. And then when I got up, um, he was still doing it and I told him to stop and then I started screaming and then he stopped.

[26] In cross-examination, the complainant testified that both before and after Mr. Nakogee masturbated he spoke of “going down”. C.J. admitted that she did not completely understand what Mr. Nakogee meant by what he said.

[27] C.J. described the act as Mr. Nakogee licking her vagina. During this event, C.J.’s reaction was that she hated herself for what was going on. She was protesting verbally but not that loudly. She was in shock. When she began to yell louder or to scream, Mr. Nakogee stopped performing oral sex.

[28] After these events, C.J. and Mr. Nakogee began walking down the hill towards the path. While doing so, C.J. told Mr. Nakogee that he could not do that again.

[29] From the Parliament Hill area, C.J. and Mr. Nakogee walked through the downtown core and eventually to the apartment building in which Mr. Nakogee lived. The apartment appears, based on C.J.’s general description, to be in the Vanier area. They went to the apartment so that Mr. Nakogee could retrieve a charger for C.J. to use for her phone, which by that time was dead.

[30] Mr. Nakogee located a charger in the apartment that he shared with his mother. While C.J. remained in the hallway outside the apartment, Mr. Nakogee’s mother arrived home. C.J. did not speak with Mr. Nakogee’s mother.

[31] With the charger in hand, Mr. Nakogee and C.J. walked in the same neighbourhood as the apartment building. Eventually they went to a Shoppers Drug Mart and located an outlet at which she was able to re-charge her cell phone. Video footage from the Shoppers Drug Mart surveillance camera was entered in evidence. The footage depicts C.J. walking into the store followed by Mr. Nakogee. The footage also shows C.J. sitting on the floor of the store, with Mr. Nakogee nearby, as C.J. charged her phone.

[32] C.J. testified that once she had re-charged her phone she (a) saw worried text messages from her mother, and (b) began to send messages to her mother. For some of the text messages Mr. Nakogee gave her specific instructions as to what to say. For example, Mr. Nakogee suggested that C.J. inform her mother that she was no longer in Ottawa.

[33] C.J.’s evidence was that after leaving the Shoppers Drug Mart she continued to walk in the neighbourhood with Mr. Nakogee. Ultimately, a police car travelled by them as they were walking. They realized that they had been observed by the police officer. Mr. Nakogee told C.J. to run. However, she ran only a bit and was found by the police officer, Cst. Bargh.

[34] Mr. Nakogee spoke briefly with Cst. Bargh—in an effort to retrieve his charger and his sweatshirt or hoodie from C.J. Mr. Nakogee left the scene. I shall deal in more detail later with Mr. Nakogee’s interaction with Cst. Bargh.

[35] C.J. was taken home, in the back of the police cruiser. While travelling home, she took a number of the pills from the bottle she had shoplifted at the Shoppers Drug Mart. C.J. testified that she took 23 Advil pills. The officer discovered that she had taken the pills. He stopped the cruiser, retrieved the pill bottle from the complainant, and resumed driving her home. C.J.’s explanation for taking the pills was that she was upset with herself and acted on impulse.

[36] When in the police cruiser, being driven home by Cst. Bargh, C.J. did not disclose to him the events that occurred behind Parliament Hill.

[37] C.J. acknowledged that she anticipated that upon arriving home she would be in trouble with her parents for her behaviour including, skipping school, shoplifting, and remaining downtown by herself. She did not receive punishment upon arriving home; she was never punished for her behaviour on that date.

[38] C.J. testified that once at home, she was told by the police that she had to go to the Children’s Hospital of Eastern Ontario (“CHEO”) because she had consumed the pills. When at CHEO, C.J. first disclosed what had happened with Mr. Nakogee that afternoon. The disclosure was to her mother, at a time when the two of them were alone in a hospital room. C.J. then disclosed the events to one of the officers who had remained outside her hospital room.

[39] C.J. remained at the hospital for a sexual assault examination and the seizure of her articles of clothing. She was released from the hospital on May 20, 2015.

b) The Mother’s Evidence

[40] In addition to giving evidence at trial, C.S. gave evidence at the preliminary hearing. Prior to the preliminary hearing, the mother was interviewed by the police with respect to her daughter’s ability to testify. Transcripts of the preliminary hearing and of the interview were referred to by counsel during cross-examination of C.S.

[41] At trial, C.S. testified as to C.J.’s psychological and/or emotional well-being prior to May 19, 2015. She referred to the following:

a) C.J., who was adopted by C.S. and her husband, had been seeing a mental health professional, specifically a psychotherapist, since grade 4;

b) In early 2015, C.S. sought help for C.J. out of concern that her daughter was experiencing mental health issues;

c) In the winter or spring of 2015, C.J. was diagnosed as suffering from anxiety and depression;

d) C.J. attempted suicide, by overdose of pills in April 2015, following which she was prescribed Celexa. C.S. was sufficiently concerned about her daughter’s well-being that she permitted C.J. to take the Celexa as prescribed; and

e) In early 2015, C.J. disclosed to her counsellor an incident in which C.J. suffered a broken nose as a result of being struck by her father. At trial, the mother described this incident as the father “tossing” a laptop towards C.J. and the laptop striking her in the nose.

[42] C.S. also testified as to her daughter’s historical pattern of disclosure. She testified that C.J. does not disclose openly to anyone. When faced with difficulty, C.J.’s reaction is to shut down emotionally and to take time before opening up.

[43] During examination-in-chief, C.S. did not recall whether she had been notified by C.J.’s school that her daughter had left school early. In cross-examination C.S. recalled receiving that notification from the school. She did not, however, immediately contact the police to report C.J. as missing. C.S. arrived home from work at approximately 4:30 p.m. C.J.’s father arrived home from work at 5:30 p.m.; C.J. was still not home. Thereafter, C.J.’s parents decided to inform the police their daughter was missing. They placed the call to the police at around 7:00 or 7:30 p.m.

[44] Constables Bargh and Hafizi attended the family home. Cst. Bargh then left the home in his cruiser to search for C.J. The complainant’s father also left the home in an effort to find C.J. Cst. Hafizi remained with C.S., counselling her as to how to respond to communication received, whether by text or by telephone call, from C.J.

[45] Upon C.J. being brought home, C.S. experienced a range of emotions including relief, annoyance, upset, and fear. C.S. testified that she did her best to remain calm in the circumstances. She described her husband as patently angry when C.J. arrived home. The father’s anger was one of the reasons why C.S. made an effort to remain calm.

[46] C.S. testified that, when C.J. arrived home in the company of Cst. Bargh, C.J. was stone-faced and silent and appeared scared.

[47] In the circumstances, C.S. determined that it was appropriate for C.J. to travel to CHEO alone in the police cruiser with one of the officers. C.S. described her decision in that regard as being part of “tough love”. Initially, C.S. anticipated that she and her husband would impose some form of discipline on C.J. for her conduct on the 19th of May. She acknowledged that ultimately C.J. was not disciplined for skipping school, etc. on that date.

[48] The description given by C.S. of the information disclosed by C.J. at the hospital is generally consistent with the description given over time by C.J. of Mr. Nakogee’s conduct. I note, however, that C.S.’ evidence is that when disclosing the events, C.J. told her mother that she was uncertain as to what had transpired for part of the time on the hillside because she had been “knocked out”.

[49] C.S. testified that after C.J. told her what happened, she told C.J. that she needed to tell the police what had transpired. C.J. disclosed the information to one of the officers who had remained outside C.J.’s room. C.S. did not coach C.J. in any way as to what to say to the police officer. C.J. used her own words when speaking with the police.

c) Other Evidence

[50] In the Analytical Framework section of these reasons, I address the balance of the Crown’s evidence:

a) The testimony of Cst. Bargh;

b) The testimony of Ms. Vachon; and

c) The contents of Cst. Hafizi’s IAR.

Analytical Framework

a) General Comments

[51] In any criminal proceeding, the analysis begins with the presumption of innocence. Mr. Nakogee is presumed to be innocent. As I have already noted, he has the right not to call evidence. It is not incumbent upon a person charged with an offence to assert their innocence through their own evidence or through other evidence called on their behalf.

[52] It is only after consideration of all of the evidence and only if that evidence is found to establish guilt beyond a reasonable doubt that the presumption of innocence is set aside and a finding of guilt can be made. It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made the Court must be sure that the offence was committed.

[53] I have heard only from witnesses called by the Crown. I have considered the credibility and reliability of the testimony of each of the witnesses. My assessment of credibility and reliability takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years ago.

[54] I am mindful of inconsistencies and contradictions in the testimony of any witness. Consistency is an element of truthful testimony. However, I do not expect perfection in the testimony of witnesses. Minor inconsistencies are an element of truthful testimony. Significant inconsistencies or contradictions are treated much differently and can, in some circumstances, result in a witness’ testimony being rejected in whole or in part.

[55] In this matter, I am not required to consider competing versions of the events giving rise to the two charges against Mr. Nakogee. I have heard only from the complainant, C.J. If her evidence is accepted, and the Crown has established the essential elements of each of the offences, then Mr. Nakogee is to be found guilty on both charges. If salient portions of C.J.’s evidence are rejected and the Crown has not established the essential elements of the offences, then Mr. Nakogee is to be acquitted on both charges. I recognize that the potential exists for Mr. Nakogee to be acquitted on one of the charges and found guilty on the other.

b) The Evidence of Children

[56] In its 1990 decision in R. v. B.(G.), the Supreme Court of Canada established guidelines for the assessment of credibility of child witnesses (1990 CanLII 7308 (SCC), [1990] S.C.J. No. 58, 2 S.C.R. 30). In summary, at paragraph 48 of the decision, Wilson J. said:

• A common sense approach is required when dealing with the testimony of young children;

• The exacting standard imposed on adults is not to be imposed on young children;

• The standard of proof required for a case involving children is not lower than the standard of proof for a case involving adults;

• A flaw, such as a contradiction, in a child’s testimony is not to be given the same effect as a similar flaw in the testimony of an adult; and

• The inability of a child to recall precise details, and communicate the location and timing of events with exactitude, does not mean that the child has misconceived what happened and who was involved.

[57] The complainant in R. v. B.(G.) was seven years old at the time of the alleged offence and eight years old when she testified at trial. As a result, one might conclude that when referring to “young children”, Wilson J. was referring to children as young as seven or eight—children whose age is a single-digit number. That is not, however, the case.

[58] Two years later, in 1992, the Supreme Court of Canada was once again called upon to consider the treatment of evidence from children in cases of alleged sexual offences. In R. v. W.(R.), the respondent was charged with sexual offences related to complainants whom McLachlin J. described at paragraph 2 as “three young girls” (1992 CanLII 56 (SCC), [1992] S.C.J. 56, 2 S.C.R. 122). The girls ranged in age from between two and four to ten years when the incidents occurred. They were three to four years older when the incidents were reported. They were 9, 12, and 16 years old when they testified at trial.

[59] When addressing the issue of credibility, McLachlin J. did not differentiate between the three girls on the basis of their respective ages. She referred to the decision of Wilson J. in R. v. B.(G.). She also commented at paragraph 24 on an “emerging … new sensitivity to the peculiar perspectives of children.” As to those perspectives, McLachlin J. said, “[s]ince children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection” (R. v. W.(R.) at para. 24).

[60] I have considered and applied the principles established in both R. v. B.(G.) and R. v. W.(R.).

c) The Charges

i) Sexual Interference

[61] There are three elements to the offence of sexual interference as set out in section 151 of the Code:

i) The complainant was under the age of 16 years at the time of the offence;

ii) Mr. Nakogee touched the complainant; and

iii) The touching was for a sexual purpose.

ii) Sexual Assault

[62] The elements of this offence, pursuant to section 271 of the Code, are:

i) Mr. Nakogee intentionally applied force to the complainant;

ii) The complainant did not consent to the force applied;

iii) Mr. Nakogee knew that the complainant did not consent to the force applied; and

iv) The force was applied in circumstances of a sexual nature.

Issues with the Crown’s Evidence

[63] Counsel raised two issues with the evidence relied on by the Crown. The first issue is what counsel characterizes as inconsistencies in the evidence of the complainant and in the evidence of the mother. Second, counsel submits that both the complainant and her mother had motivation to be other than truthful.

a) The Inconsistencies

[64] Counsel argues that the inconsistencies:

• Call into question the credibility and reliability of the evidence of each of the complainant and her mother; and

• Taken as a whole give rise to reasonable doubt with respect to at least some of the essential elements of the offences with which Mr. Nakogee is charged.

[65] I find that the inconsistencies, to the extent they exist, if they exist at all, are neither “significant” nor “serious”. The inconsistencies do not give rise to reasonable doubt with respect to any element of the offence of sexual interference or of the offence of sexual assault. The inconsistencies do not detract from the credibility and reliability of either the complainant or her mother.

[66] An overarching feature of the inconsistencies stems from what counsel suggests was reluctance on the part of the complainant to fully disclose matters. Counsel argues that the complainant’s reluctance in that regard amounts to the complainant withholding the truth or changing her testimony from one moment to the next.

[67] I disagree with that characterization of the complainant’s evidence:

• First, to the extent it can be said that the complainant disclosed information gradually, her pattern of disclosure is consistent with the description given by her mother of the complainant’s historical behaviour;

• Second, the pattern of disclosure is consistent with the complainant’s description of her emotions at the time of the events giving rise to the charges; and

• Third, the pattern of disclosure is consistent with a 13-year-old girl whose family was already involved with the Society. That involvement was the result of the complainant’s disclosure of her father’s conduct. A level of apprehension on the complainant’s part regarding disclosure of the events involving Mr. Nakogee, with the potential for the involvement of the police in her personal and family situation, is understandable.

[68] I turn to the inconsistencies raised.

i) Reason for Leaving School

[69] Counsel argues that there are inconsistencies in the complainant’s evidence as to why she left school on the afternoon of May 19, 2015. I disagree.

[70] The complainant testified that she left school and travelled downtown by bus because she was angry and upset. On May 26, 2015 the complainant initially told the interviewing officer that she did not know why she was mad. She ultimately explained that she left school in an effort to avoid being home for a meeting scheduled for that night with a representative of the Society. The complainant also explained why the meeting had been scheduled.

[71] It is not surprising that the complainant, who wanted to avoid the meeting with the Society’s representative, would be reluctant or take her time to disclose to the interviewing officer that she had been physically harmed as a result of her father’s conduct. The complainant was struggling with mental health issues including anxiety, depression, and self-mutilation; dealing with her father’s conduct; and dealing with the Society’s intervention into the family dynamics. It is understandable that the complainant was hesitant, if not reluctant, to disclose this information to the interviewing officer and potentially add another layer of intervention to the family situation.

[72] Counsel also raises the contents Cst. Hafizi’s IAR as an element of the inconsistencies in the evidence as to why the complainant left school. In the IAR, Cst. Hafizi recorded the following:

[The complainant’s mother] advised her daughter suffers from depression and anxiety. [The complainant’s mother] stated that her daughter … had called from school in regards to a fight that she was involved in and she needed time on her own. [The complainant’s mother] advised that her daughter was depressed and back in April 2015 she had attempted to kill herself via pills.

[73] When giving evidence at trial, the mother did not recall receiving information to that effect from her daughter during a telephone call on the afternoon of the 19th of May. There is no evidence, other than as recorded in the IAR, of the complainant having been involved in a fight prior to leaving school.

[74] As both the Crown and counsel acknowledged, the contents of the IAR are not evidence as to the truth of any statement recorded therein; they are evidence only of a statement having been made by another—in this instance, by the mother. There are a number of potential explanations for the discrepancy between the contents of the IAR and the mother’s evidence. For example, Cst. Hafizi may not have recorded accurately the information he received from the mother. Alternatively, the mother may, in the moment, have misspoken.

[75] In weighing the contents of the IAR against the testimony of the complainant and her mother, I place no weight on the contents of the IAR as they relate to the complainant’s reason for leaving school.

ii) How C.J. and Mr. Nakogee Ended Up Walking Together

[76] Counsel suggests that there is an inconsistency between the complainant’s evidence in examination-in-chief and her evidence in cross-examination as to how she ended up walking with Mr. Nakogee. I disagree.

[77] Counsel has conflated the complainant’s evidence with respect to two separate and sequential events as a single event explained in two different ways. The complainant was clear in her evidence that as the two were walking, in opposite directions, she was approached by Mr. Nakogee and he asked to walk with her. After that approach, the complainant turned and began walking in the same direction as Mr. Nakogee.

iii) Disclosure of Shoplifting at Shoppers Drug Mart

[78] Counsel highlights the manner in which the complainant disclosed to the interviewing police officer the fact that she had, before meeting Mr. Nakogee, been to a Shoppers Drug Mart and shoplifted a number of items. Counsel suggests that the disclosure of the shoplifting was not immediate.

[79] I find to the contrary. The disclosure of the shoplifting was not kept from the interviewing officer. The complainant’s evidence was as follows, “Then I walked around by myself for a while and I got stuff. Well, I didn’t actually buy it but I got stuff from Shoppers Drug Mart and I got like, um, food, a toothbrush, notebooks to keep me busy and I also got pills.” The complainant did not attempt to cover up the fact that she had shoplifted a number of items.

iv) Mr. Nakogee’s Position During Oral Sex

[80] Counsel argues that the complainant’s description of how Mr. Nakogee applied force so as to remove her pants is physically impossible. I disagree.

[81] I accept the complainant’s evidence that Mr. Nakogee used one arm to hold her upper body to the ground and his other arm to remove her pants. The complainant acknowledged that the degree of force used was not so great that she could not have gotten out. However, she did not try to do so. That she did not try to extricate herself is consistent with the shock and fear she was experiencing at the time.

[82] Counsel also argues that the description given by the complainant of Mr. Nakogee’s position while he performed oral sex is neither physically possible nor believable. The complainant described Mr. Nakogee as steadying himself with one arm and using his other arm to hold the complainant’s leg up.

[83] Even if the complainant has described a position that is physically impossible, it must be remembered that she was in fear and shock. In addition, she had only recently turned 13. Any inaccuracies or confusion in her evidence in that regard is understandable when considered in that context.

v) The Mother’s Evidence

[84] The inconsistencies in the mother’s testimony are said to reflect a deliberate effort on the mother’s part to tailor her evidence and minimize the extent of the complainant’s psychological and/or emotional difficulties as of May 2015. For example, reference is made to the mother’s description of her daughter’s depression and anxiety as being only “slight”.

[85] In fact the mother’s evidence was that her daughter had a “little bit of anxiety” and had, in April 2015, been prescribed Celexa (10 mg). In cross-examination, the mother described her daughter as suffering from “some anxiety”. The mother acknowledged that she had, since February 2015, been trying to get her daughter help because she wondered if there were mental health issues other than anxiety and depression.

[86] The mother’s evidence runs contrary to an attempt on her part to minimize the nature of her daughter’s mental health issues. The mother’s evidence is consistent with a parent who was significantly concerned about her child’s well-being and was doing what she could to secure the help she believed the child required.

b) Motive to Fabricate Events

[87] Counsel questions the complainant’s credibility on the basis that C.J. had a motive to fabricate the events of that day. Counsel submits that, by the time that the complainant arrived home in the evening, she was clearly in trouble with her parents. In an effort to avoid the punishment she realized she would face, the complainant ultimately chose to fabricate events from that day.

[88] The theory of motivation to fabricate is not supported by the evidence.

[89] In her evidence at trial, the complainant acknowledged that prior to arriving home and thereafter she anticipated she would be in trouble for her conduct. However, there is no evidence that she was in any way concerned about the potential punishment or consequences that might be imposed.

[90] Cst. Bargh picked up the complainant from the downtown area and brought her home. He testified that when he arrived at the family home with C.J., her parents were not yelling.

[91] There is no evidence that the parents behaved in any way other than one would expect of parents whose child had been missing for a number of hours and was picked up by the police. I find the mother’s evidence as to each parent’s reaction to be forthright.

[92] In support of the theory that C.J. had motive to fabricate the events, counsel points to the timing of the disclosure by C.J. I find that the timing of the disclosure is consistent, not with a motive to fabricate, but with a young girl who did not have a full understanding of Mr. Nakogee’s conduct when the two were together behind Parliament Hill.

[93] With respect to the timing of the disclosure, I have also considered the following:

• The complainant testified that when picked up by the officer she was not certain that she wanted to disclose to anyone what had happened; she hated herself for what happened and was embarrassed.

• The delayed disclosure is also consistent with (a) the complainant’s historical behaviour, and (b) what was no doubt a stressful situation in the family home. Not only was the complainant dealing with her parents; there were two police officers in the home. She was also expecting to meet with a representative of the Society that evening.

• The complainant had, while travelling home in the police car, taken in excess of 20 Tylenol or Advil tablets. The consumption of the tablets is consistent with the mother’s description of the complainant upon her arrival home as (a) stone-faced, (b) silent, and (c) appearing scared. The mother’s evidence was that her daughter is typically emotional.

[94] How individuals choose to disclose events of this kind is unique to each person. There is no pre-determined standard against which to measure disclosure, including as to its timing.

[95] I find the delayed disclosure of the events to be consistent with C.J.’s historical behaviour, level of maturity, and circumstances in the family home that evening.

[96] Counsel also points to a discrepancy between the evidence of the complainant and her mother as to when disclosure was first made. The complainant testified that she disclosed the events when alone with her mother in the hospital room at CHEO after approximately 30 minutes. It is not clear whether the complainant meant that she had been alone with her mother in the room for approximately 30 minutes before making the disclosure or the disclosure was made approximately 30 minutes after the complainant’s arrival at CHEO. The mother testified that the disclosure was made approximately two hours after the complainant arrived at CHEO.

[97] The complainant was frank that in testifying that in the days leading up to the trial she did not recall specifically when she disclosed the events to her mother. As a result, she asked her mother if the disclosure was made at the family home or at the hospital. The complainant did not try to hide from the Court the deficiency in her memory in that regard.

[98] It is not clear whether there is a discrepancy in the evidence as to the timing of disclosure. If, however, there is such a discrepancy, I find that it is not a significant discrepancy. I also find that the evidence with respect to the timing of disclosure is addressed by the age of the complainant, her consumption of more than 20 pills several hours earlier, the circumstances in which the complainant found herself that evening (both at home and at the hospital), and the frailties of human memory with the passage of time.

Sexual Interference – The Age of the Complainant

[99] Counsel argues that the Crown must establish beyond a reasonable doubt or that there must be no doubt that Mr. Nakogee knew the complainant was less than 16 years old. Counsel relies on a number of factors in support of doubt in that regard, including the following:

• The complainant was 5’10” tall. Her height together with her hairstyle and make-up made her appear to be at least 16 years of age;

• The complainant told Mr. Nakogee she was in high school, but said nothing about her age or grade level. “High school” means grades 9 to 12 and does not include grade 7 (the complainant’s grade) and grade 8; and

• The complainant was in the downtown core on her own into the evening hours.

[100] In advancing the defence of mistaken belief that the complainant was 16 years of age, the requirements of section 150.1(4) of the Code must be met. That section states:

It is not a defence to a charge under section 151… that the accused believed that the complainant was 16 years of age or more at the time of the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

[101] Mr. Nakogee was in his late twenties at the time. I accept the complainant’s evidence that Mr. Nakogee did not (a) show her his identification card as proof of his age, or (b) ask the complainant to provide him with identification establishing her age.

[102] In any event, I am not persuaded that the factors identified by counsel would cause a reasonable person to conclude that the complainant was 16 years old:

• The reference to the complainant wearing make-up is based on how the complainant appeared in the Shoppers Drug Mart video. That video footage is not sufficiently clear in quality to support a finding that the complainant was wearing make-up.

• The fact that the complainant was in the downtown core at night is not, in the circumstances, an indicator of the complainant’s age. Mr. Nakogee first encountered the complainant in the late afternoon. The complainant demonstrated a lack of independence by continuing to communicate with her mother both by text and by cell phone.

• The ability to communicate with her mother by cell phone was so important to the complainant that she (a) went with Mr. Nakogee to his family’s apartment to retrieve a charger, and (b) spent time in the Shoppers Drug Mart charging her phone.

• The length of the complainant’s hair was not indicative of her age.

• At 5 feet 9 or 10 inches the complainant was tall for her age. Her height, in the context of the other factors, does not support a conclusion that the complainant was at least 16 years old.

[103] The video recording of the complainant when interviewed by a police officer is far better in quality than the surveillance video from Shoppers Drug Mart. The video recording of the police interview provides demonstrative evidence of the complainant’s appearance only one week after the events giving rise to the charges against Mr. Nakogee. I find that the police recording serves to confirm that C.J. had the appearance of a pre-pubescent girl.

[104] Even if Mr. Nakogee’s observations of the complainant’s appearance and demeanour on May 19, 2015 were valid, they are merely that—observations. They provide no evidence and are not determinative of what Mr. Nakogee was thinking at the time about C.J.’s age.

[105] Lastly, counsel points to Mr. Nakogee’s conduct when he and C.J. encountered Cst. Bargh as evidence of Mr. Nakogee’s belief that C.J. was 16 years old. Cst. Bargh testified that he located C.J. and Mr. Nakogee in the area of Wurtemburg Street, west of the Cummings Bridge.

[106] Once C.J. was in the cruiser, a man walked towards the cruiser and asked for his cell phone charger. As the Crown highlighted in its submissions, walking towards the cruiser was not Mr. Nakogee’s first reaction to the arrival of the police. His initial reaction was to tell C.J. to run and to run himself.

[107] Cst. Bargh’s evidence was that when he told Mr. Nakogee that C.J. was 13 years old, Mr. Nakogee appeared to be taken aback. In cross-examination, Cst. Bargh acknowledged that Mr. Nakogee could have been surprised upon hearing that C.J. was 13 years old. Cst. Bargh described Mr. Nakogee as having a blank look on his face.

[108] Cst. Bargh testified that a second officer, Cst. Savory, arrived and attempted to speak with Mr. Nakogee. At that point, Mr. Nakogee did not remain and took off through a nearby park.

[109] I found Cst. Bargh to be forthright in his evidence. His answers were direct. He did not appear to embellish his testimony to serve any particular purpose.

[110] Cst. Bargh is not an expert in facial recognition or expressions. He did not have a comparator against which to consider Mr. Nakogee’s facial expression. There is no evidence as to how close he was standing to Mr. Nakogee or how brightly lit the area was where the two men were speaking.

[111] I do not intend any criticism of Cst. Bargh or his evidence. I find, however, that his observations of Mr. Nakogee’s reaction to being told that C.J. was 13 years old do not support a conclusion that Mr. Nakogee had, to that point, either believed that C.J. was 16 years old or had some doubt that she was not yet 16 years old.

[112] In summary, I find that Mr. Nakogee has not met the evidentiary burden he bears to establish some evidence of his mistaken belief regarding the complainant’s age and to establish some evidence that he took all reasonable steps to ascertain the complainant’s age.

[113] I am, in any event, satisfied that the Crown has proven beyond a reasonable doubt that Mr. Nakogee (a) did not have a mistaken belief with respect to the complainant’s age, and (b) failed to take all reasonable steps to ascertain the age of the complainant.

Expert Evidence

[114] Nicole Vachon of the Centre for Forensic Sciences was qualified as an expert in bodily fluid and DNA analysis. Her qualifications were not challenged.

[115] The continuity of evidence is admitted with respect to both the articles of clothing seized from the complainant at CHEO and Mr. Nakogee’s DNA sample. The samples available for testing in this case are from the complainant’s underwear, t-shirt, and sweat pants worn on May 19, 2015. Ms. Vachon testified that all of the samples available from the complainant’s clothing met the requirements in terms of minimum volume to permit an analysis to be carried out.

[116] The analysis for the sample from the right front thigh area of the sweat pants identified that the Random Match Probability with Mr. Nakogee’s DNA is 1 in 34 trillion. Ms. Vachon’s evidence was that the result is not explained on the basis of a determination of a match, but rather as an estimate as to how frequently the same profile would occur in someone unrelated to Mr. Nakogee.

[117] On the basis of the DNA analysis, I find that it was Mr. Nakogee’s semen on the right front thigh of the complainant’s sweat pants.

[118] The results of the analysis of DNA found both on the complainant’s underpants and on her t-shirt are less definitive than those for the semen found on the grey pants. For the sample on the t-shirt, the Random Match Probability is 1 in 12 thousand.

[119] Ms. Vachon is unable to conclude whether the fluid sample found on the underwear is saliva or some other fluid such as vaginal discharge. She is also unable to express an opinion as to whether the sample, if it is saliva, includes DNA from Mr. Nakogee. She testified that it is less than likely that the fluid sample from the back of the crotch of the underwear is semen.

[120] I am not satisfied beyond a reasonable doubt that Mr. Nakogee’s DNA was present in the fluid samples from the t-shirt and underpants.

[121] Before leaving the subject of the expert evidence, I want to address an inconsistency which counsel suggests exists in the complainant’s evidence. The inconsistency relates to where Mr. Nakogee’s ejaculate landed.

[122] It was the complainant’s evidence that she was able to forcefully pull away from Mr. Nakogee, even though he had grabbed her hair. As a result, he did not ejaculate on the complainant’s face as he had wanted. Instead, his ejaculate landed on a stick or branch on the ground near where the complainant was sitting.

[123] Counsel submits that the results of the DNA analysis are “a strong contradiction” of the complainant’s evidence as to where Mr. Nakogee’s semen landed. That argument overlooks that the complainant:

• Turned her head away from Mr. Nakogee as he masturbated;

• May not have observed every location on which the ejaculate landed; and

• May not have appreciated that some of the ejaculate was on her sweat pants, assuming she observed anything on the pants. (See R. v. W.(R.) at para. 26 and the statement that evidence must be considered in the context of the age of the witness at the time of the events.)

[124] I find that the inconsistency suggested by counsel with respect to the location of the ejaculate does not detract from either the credibility or reliability of the complainant’s evidence.

Disposition

[125] I agree with the Crown’s submission that the complainant was unshaken in her evidence of the events giving rise to the two charges. I note the following with respect to C.J.’s evidence:

• She was responsive to the questions posed, both during examination-in-chief and cross-examination;

• Her responses were direct and to the point. She neither embellished her evidence nor belaboured a subject;

• She was forthright in admitting that she had in the days prior to the start of trial queried her mother as to when the disclosure was made;

• She was forthright in acknowledging that she did so because she could no longer remember whether she made the disclosure at home or at the hospital; and

• She readily admitted the emotional and mental health issues that she was experiencing in May 2015 and continued to experience to the date of trial.

[126] For those reasons and others that I have already addressed, I accept the complainant’s evidence as to the events that occurred behind Parliament Hill on May 19, 2015. I find that the Crown has established beyond a reasonable doubt the essential elements of the charges pursuant to each of sections 151 and 271 of the Code. I find Mr. Nakogee guilty of both charges.

[127] During their respective submissions, the Crown and counsel expressed agreement that if I were to find Mr. Nakogee guilty of both charges, only one conviction is to stand. I shall hear from counsel with respect to (a) which of the two convictions is to stand, and (b) sentencing.

Madam Justice S. Corthorn

Released: August 16, 2017