R. v. R.N., 2019 ONSC 2759
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Her majesty the queen,
AND:
R.N., Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Sunita Malik, for the Crown
James Smith and Keina Mahaisuria, for the Defence
HEARD at Toronto: April 1 to 4, 2019
REASONS FOR DECISION
1The accused person, Mr. R.N. (or “R.N.”) N., was tried before me on three counts of indecent assault under the former s. 141 of the Criminal Code, S.C. 1953-54, c. 51 in relation to certain incidents alleged to have occurred involving his niece H. in 1966[1]. The complainant alleges that the accused indecently assaulted her on these occasions when she was 11 and 12 years of age.
Review of evidence
(a) Overview
2Mr. R.N. and his wife P.1 were married in 1957. They moved to Ontario in 1959 and he began working at the G[…] factory in Etobicoke, working there continuously until his retirement in 1996.
3At the time of trial, Mr. R.N. and P.1 were both 84 years of age. I shall make reference to Mr. R.N.’s cognitive and memory issues below.
4The accused and his wife have two children, a son (Ro.) and daughter (K.) born in 1960 and 1965 respectively. These two were thus quite young at the time of the alleged incidents, the eldest P.2 being six years younger than the complainant (his cousin H.). P.2 had started kindergarten at the time of the first alleged incident in 1966 while K. was then less than a year old.
5P.1’s work at a local grocery store was interrupted by her pregnancy in 1965 but she resumed work in 1967. She was thus a full-time mother and homemaker in 1966 when the incidents are alleged to have occurred.
6Until about 1968, Mr. R.N. and his family lived in a two-bedroom Etobicoke apartment a short street car ride (or a longer walk) from his nearby factory job. He generally worked five days a week, (Monday to Friday) and forty hours per week. His job entailed working shifts that rotated regularly between day, evening and night shifts. The day and evening shifts changing over at 3:30 p.m. with the night shift coming on duty at 11:30 p.m. He also worked overtime shifts when available. The N. family moved from their Etobicoke apartment to a house in Mississauga between 1968 and 1970 (after the incidents giving rise to the charges before me).
7The complainant H. was born in 1954. Her mother Ve. is the sister of P.1, the wife of the accused. The complainant was accordingly the niece by marriage of Mr. R.N.. H.’s father (and Ve.’s husband) Ra. died in 2011. The complainant is an only child. She was 11 and 12 years old at the time of the alleged incidents, her birthday falling in early […].
8H.’s home in 1966 was about ten blocks away from the N. apartment. The time frame over which the incidents are alleged to have occurred spans H.’s transition from a relatively small neighborhood junior public school to the larger J[…] elementary school (near the N. apartment) where her cousin Ro. attended. She finished Grade 6 in June 1966 and commenced Grade 7 at J[…] in September of that same year. While still in Grade 6, some of H.’s classes were nevertheless held at J[…]. J[…] was only a very short distance from the N. apartment.
9In 1966, Vi., an older sister of P.1 and Ve., also lived in the same general area of Etobicoke with her husband and children. The three sisters and their respective families were thus all clustered – for the relevant time at least – in the same area.
10H. alleges that on one occasion while babysitting her cousins at the N. apartment and on other occasions when stopping by after school to play with her cousins, Mr. R.N. took advantage of moments when he was alone with her to molest her sexually. She alleges that her breasts and pubic area were fondled by Mr. R.N. both inside and outside of her clothing. She said that she was told to keep these incidents a secret and did so for many years. The incidents stopped after the N. family moved to Mississauga. I shall describe the evidence in relation to those incidents in further detail below – Mr. R.N. vigorously denies that any of them ever occurred and denies further that H. came alone to the apartment to babysit or play with her cousins after school.
11In the summer of 1970, H. had reached 16 years of age and applied for and received her drivers’ licence as soon as she was able. So equipped, she decided to drive over to her cousins’ home in Mississauga. While there, she alleges that the accused took advantage of a moment alone with her to attempt to fondle her once again but that she – now older and more assertive – rebuffed this effort and firmly told him not to touch her again. Her evidence is that she did her best to forget about the incidents in the years that followed but that she nevertheless so arranged matters as to avoid being alone in the company of the accused at family gatherings. This last incident is not the subject of a charge.
12The accused and his wife deny that H. ever came on her own to visit them in Mississauga in addition to denying that this last incident as described ever occurred. Leaving aside for the moment the alleged attempted molestation, I have no hesitation in finding that the visit in fact occurred as described by H.. Her evidence on the subject was credible and reasonable. It is the sort of thing she might well remember apart entirely from the incident she described occurring during that visit. Being allowed to drive a car on her own at age 16 would be a more momentous occasion for her than it would be for an aunt or uncle receiving such a visit. Furthermore, as shall be seen, I have found the memory of the accused to be simply too unreliable to place more than cautious reliance upon it. I also found that P.1’s memory was too unreliable and frankly defensive to place faith in her categorical denial of H. ever having visited the house alone. P.1 categorically denied certain other events involving H. of much more recent vintage – 1979 and 1980 – only to have to retract those categorical denials in the face of photographic evidence to the contrary. I find that H. drove to the N. residence in Mississauga alone soon after receiving her licence in the summer of 1970.
13While I have made a specific finding in this regard, I do so recognizing that the visit itself is only of peripheral relevance to the charges before me. As mentioned, no charges arise from this incident. I recount the story only because it forms part of the narrative explaining how and under what circumstances the complainant ultimately told other persons of her allegations regarding Mr. R.N., a circumstance itself giving rise to an alleged admission by him as I shall now relate.
14H. was married to her husband T. in 1976. Her son P.2 was born in […] 1979. There was a family celebration of P.2’s first birthday at H.’s home in […] 1980. H. recalled having left the room for a moment and returned to see that her Uncle R.N. had her son on his lap. She said that this sight triggered memories in her and she felt physically ill. She quickly retrieved her son, not wanting her uncle even to touch him. At that time, she had yet to tell anyone else of what she alleges her uncle had done to her fourteen years earlier nor did she do so on this occasion.
15While the accused and P.1 both strenuously denied ever having attended such a birthday party, P.1 did ultimately apologize for having denied this under oath and conceded that she may have forgotten about this family event after all. She issued this apology after being confronted with pictorial evidence showing her at a celebration in what appeared to be H.’s home and her daughter holding baby P.2 in her arms. Furthermore, there would be no reason for the N. family not to have been invited or to have come to a family birthday party such as the one described in the period prior to H. having publicly confronted her uncle with her allegations.
16I accept H.’s evidence that Mr. R.N. was present at her son’s first birthday party in […] 1980 as she described.
17In the weeks that followed this incident at her son’s birthday, H. found herself increasingly troubled by the memories triggered on that occasion and was eventually referred to a therapist by her family doctor. In the course of such therapy, she determined to bring her theretofore buried secret into the open. She began by telling her husband T. and then later her parents Ra. and Ve.. T. attended some of her therapy sessions as well. In each case, H. told them little more than the bare fact that her uncle R.N. had molested her when she was 11 years old and humiliated her. She did not then provide any of them with details of the incidents. Indeed, she has only recently provided some of those details to them in the context of these proceedings.
18A few days after telling her parents, H. arranged a meeting with Mr. R.N. and P.1 at their Mississauga home. This meeting took place in or about September 1980. H.’s purpose was to confront her uncle in the open about what he had done and thereafter to sever all contact with him. T. drove H. and her parents to the N. home in Mississauga while the baby was left with H.’s Aunt Vi.. Mr. R.N. and P.1 were there when they arrived. At H.’s request, her then teen-aged cousin K. was asked to excuse herself and left the house to visit a friend or neighbour. Mr. R.N. had been asleep in bed when they arrived since he was working the night shift.
19There are disagreements between the witnesses that I consider to be inconsequential as to how this confrontation meeting was arranged. H. said that she phoned her Aunt P.1 to confirm that she and Uncle R.N. would be at home the day before. P.1 testified that she herself had invited H. and her family for an afternoon barbecue on Labour Day weekend and that H. had simply phoned to confirm that the barbecue was still on the day prior. Although the barbecue was not scheduled until the afternoon, P.1 said that H. and her family simply showed up unannounced late morning and demanded to speak to R.N..
20While nothing turns on how the meeting was arranged, I find that H.’s description was both more credible and plausible. H.’s trip to Mississauga required her to make arrangements to drop her own child off with her aunt Vi., to drive with her husband to pick up her parents and then to drive out to Mississauga to the N. house. These steps required deliberation and planning. It would be utterly implausible to imagine that she would have taken all of these preparatory steps – each done with a view to a cathartic confrontation with her uncle R.N. – but then simply dropped by the N. house unannounced in the hope of finding everyone she wanted to talk to at home.
21With the exception of H.’s father Ra. who passed away in 2011, each of the persons present at that confrontation testified at trial about what occurred. While there are aspects where the witnesses differ, in particular as to what statements if any the accused made, all concur that the meeting occurred and that during the meeting H. accused her uncle R.N. of having molested her. I shall examine this evidence in further detail below.
22The parties devoted considerable effort at trial to unearthing this or that detail about who said what to whom or who expressed belief in or skepticism about H.’s accusations in the years that followed the September 1980 confrontation. None of the evidence about events subsequent to the confrontation meeting in September 1980 has any bearing on the questions I must decide. There were no other witnesses to the alleged indecent assaults when they occurred. H. alleges that she was alone with her uncle on each occasion. Whatever admissions the accused may or may not have given during that 1980 confrontation, there were no further admissions made by him thereafter. There is no suggestion that H. has ever recanted her allegations since. She told nobody about them until shortly before the 1980 confrontation with her uncle and had no material dealings with the N. family thereafter. Neither the allegations of the complainant nor the denials of the accused become more credible through repetition nor through a census conducted to determine which family member believed her (or him) and when.
(b) The “babysitting incident”
23H. alleges that the first incident occurred while she was still in Grade 6 at some point in late winter or early spring of 1966. She surmised at trial that this would place the incident in March or April 1966. She was then 11 years old. Her recollection was that she had been asked by her mother to babysit at the N. apartment but was unaware of precisely how those arrangements were made beyond recalling that she was to stay the night. She said that she fell asleep on the couch in her pink flannel pyjamas. Her Uncle R.N. arrived home first – she recalls it being perhaps 9:30 p.m. She remembered being awakened by her uncle. He placed his hand under her top and felt her breast area, commenting that he wanted to “see how developed” she was, commenting that she was not yet very developed, but that her breasts would soon get larger. She remembered him discussing how women in strip clubs put tassels on their breasts that they could spin around. He then proceeded to put his hands down her pyjama bottom to see how she was developing “down below”. After feeling her pubic area and vagina, he commented that she was “more grown up” down there. The incident ended after a short while when he did up her buttons, told her not to tell anyone and covered her with a blanket. She went back to sleep and returned home in the morning, telling no one about the matter and fearful that had she done so she would not be believed.
24Ve. had no specific recollection of the date of the incident alleged by H. or how the arrangements for H. to babysit were made. I attribute no weight to this lack of specific recall given the lack of any reason for her to have remarked upon the matter at the time. Ve. did not learn of H.’s allegations against her uncle until 1980 and did not learn of the particulars of those allegations until years after that.
25Ve. did recall that the two families had a good relationship at that time and got together “all the time”. This state of affairs continued until the confrontation in 1980 described earlier. She was generally aware that H. visited the N. apartment from time to time and that she did babysit there but could not recall a particular babysitting event.
26While first stating that babysitting was something that his wife looked after, Mr. R.N. was nevertheless quite firm in denying that H. had ever been asked to come over to babysit or had ever slept over.
27P.1 denied that the families were particularly close – she said that they really got together only at Christmas and then rotated locations each year to hold that celebration at the home of one of the three sisters who lived in the area. This particular qualification regarding the state of affairs was contradicted to some degree by her later evidence of having invited H. and her family over for a barbecue on Labour Day weekend in 1980. As far as H.’s alleged babysitting was concerned, P.1 was quite categorical in stating that she had no need of any help and never called upon K. to do so. She stayed at home for more than a year after K. was born and there were two women who lived in her building who helped her out with babysitting when needed. She would not have left an infant as young as K. then was in the care of a girl as young as H. then was.
(c) The “after school” incidents
28H. described a number of subsequent incidents that occurred in this same time frame. She had great affection for baby K.. On “several” occasions her uncle came to the J[…] school to bring her back to play with K. before the end of the school year while she was still in Grade 6. There were two occasions that she recalled distinctly. She had no memory of where her cousin Ro. was on either of these occasions.
29On one occasion, she recalled sitting in the kitchen playing a game at the kitchen table with her uncle. They played the game “Hangman”. The hidden phrase he gave her was something along the lines of “you make me feel sexy”. She was wearing a skirt with knee socks and was also wearing a bra. On this occasion, she described the accused as having fondled her private areas above and below her clothing, including touching her vagina.
30A second occasion occurred in the living room. She recalled her uncle saying something along the lines of “let’s see if you are any bigger” and putting his hand inside her shirt to feel her breast area.
31These incidents were very short in duration. She recalled them distinctly although also recalling that fondling occurred at some point during most of her visits. There were no further incidents after school ended in June and she did not come to visit during the summer months.
32She also described another incident that occurred the same year after school resumed. She was then 12 years of age and in Grade 7. Once again, she came after school to visit. The accused reached under her shirt and felt around her bra and breasts, both underneath and on top. He then reached under her skirt and on feeling the presence of her sanitary napkin laughed and said that “it had to happen sometime” and that she was “growing up”. This caused her to cry and she remembered feeling humiliated.
33She recalled being warned by Mr. R.N. on several occasions not to tell anyone about these incidents. She also recalled feeling afraid that no one would believe her.
34After this last incident, H. said that she did not go back to the N. apartment alone and tried to avoid being alone with Mr. R.N. at family get-togethers thereafter. About a year later, the N. family moved away to the Clarkson area of Mississauga.
35Mr. R.N. strongly denied that the incidents described by H. ever occurred. He denied ever touching H. inappropriately or having ever played “Hangman” with her. He went further and denied that even the opportunity for such an incident had ever arisen, an assertion strongly supported by his wife P.1.
36Mr. R.N. at first denied that he had ever picked his son Ro. up after school or that H. had ever come to the apartment after school. He stated categorically that he was sure that he had never done so. A few minutes later, he was then asked if he recalled taking his daughter K. in the baby carriage to walk over to Ro.’s school and, with this additional detail, his memory appeared suddenly to return. This time he clearly remembered having come to the school with K. in a baby carriage to pick up Ro. as H. described. He said that it was H. who asked to join them and then she asked if she could come into the apartment as well. After playing with K. for a while, he said that H. then went home. On this occasion, he recalled being home because he had a day off work. However, he was quite firm in denying that H. had ever come over to play after school before or after this one single incident that he was now able to recall. Once again, he claimed to be “sure” that this had happened only on the one occasion.
37On cross-examination, Mr. R.N. agreed that H. did want to play with his children but insisted that she only ever came over on the one occasion he mentioned. He agreed that his wife left the children in his care from time to time when she went out to do chores and that he did sometimes have days off during the week. However, he repeated his denial that he had ever been to pick up his son Ro. (at the same school he knew H. attended) more than on the one occasion.
38P.1 stated that she did not rely on her husband to babysit or to pick up Ro. after school. She had babysitters available to her in the building if she needed to run errands. She nevertheless did allow that she would leave the children in her husband’s care if he were home and she had shopping to do with the car or errands to run. She also said that she was aware of H. having come over on the one occasion after school when she was not there as described by Mr. R.N. but, in agreement with her husband, asserted that this was only a single occurrence that was not repeated.
(d) The confrontation meeting
39I have described above the circumstances leading to the confrontation meeting at the N. home in or about September 1980. P.1 dated the meeting as occurring over the Labour Day weekend – H. was not sure of the date but had no recollection of a prior planned barbecue for later that day. Nothing turns on this minor disagreement in the evidence. Present at the meeting were Mr. R.N. and P.1, Ve. and her husband Ra. and H. and her husband T.. Mr. R.N.’s daughter K. had been at the house when H. arrived but had left the house shortly afterwards at H.’s request. The six adults then gathered in the living room.
40H.’s evidence concerning this meeting may be summarized as follows. After K. was gone, H. said that she had come to say something that she was fairly certain would mean that they would not see each other again. She then said “when I was 11 years old, Uncle R.N. sexually molested me and now it has come back to me after my son was born that I need to make sure that he is never around him again”. In response to this, Mr. R.N. sat up and raised both hands in the air saying “I didn’t have intercourse with you”. H. then told him “No, you didn’t rape me. What you did do was play games with me and fondle me and humiliate me”. The accused then turned to his wife and said “I remember one time when I started to do something and caught myself before I went too far and after that it was just a little bit of fun and games we were having. I didn’t hurt her”. Shortly after this, H. and her husband T. announced they were leaving and, in response to T. asking Mr. R.N. how he could have done that to H., R.N. told T.: “T. I’m really sorry I’ve really made a mess of everything”. T. and H. then left and waited in the car for her parents to join them.
41In this and the following summaries of the evidence given by witnesses, I have used quotes where the witness provided apparent verbatim quotations but do so with the caveat that after nearly fifty years, the purported quotes are necessarily somewhat approximate. I view them as the gist of the statements heard by the witness, as best as can be recalled by the witness. It would be unrealistic to expect an exact quotation to be preserved perfectly in memory for such a long period of time.
42On cross-examination, H. admitted that her therapist had predicted that Mr. R.N. would respond to the confrontation with words that appeared less violent and had suggested to her that he might say “I did not have intercourse with you”.
43Ve.’s evidence of this meeting largely confirmed H.’s but with some differences. After H. told R.N. that he had molested her when she was 11 years old, she recalled R.N. jumping up physically and saying “I didn’t have intercourse with you”, to which H. replied “No you didn’t”. She recalled her husband asking Mr. R.N. “why did you do this to H.” and Mr. R.N.’s reply as having been “I’m sorry Ra., I’m sorry”. After H. and T. left the house, Ve. went out to the backyard to talk with her sister P.1 who had been crying and sitting beside Ra. while H. was speaking. After a time spent talking to P.1, Ve. and her husband joined H. and T. in the car and left.
44T.’s evidence regarding this meeting was somewhat sparser than that of his wife and mother-in-law but corroborated the broad lines of both. He recalled the meeting in the living room of the N. home. He recalled H. making a statement that she had come to tell them that R.N. had sexually molested her when she was 11 years old. After hearing this, he said that R.N. spoke up and said that “we didn’t have intercourse” to which H. responded “No, you didn’t rape me”. He also recalled Mr. R.N. turning towards his wife and telling her that they were “playing a game” but that “I didn’t hurt her and I stopped myself before going any farther”. Finally, he recalled that when he was leaving the room that Mr. R.N. said to his father-in-law “I’m sorry Ra.” after which Ra. exclaimed “why would you do that to H.”? Mr. R.N. then turned to T. and said “I’m sorry T. that I made trouble in the family”. T. responded to him that he should understand that “this is the last time we are seeing you” and left the house with H. to wait in the car.
45Mr. R.N. had considerably less recall of the details of this meeting. He recalled the meeting at his home and hearing H. accuse him of having molested her. When asked if he himself or anyone else present responded to this charge, he said “I don’t know, I don’t know”. By reason of Mr. R.N.’s memory issues, I permitted his counsel some latitude to be leading and allowed him to put to Mr. R.N. the words that H. had quoted him as saying at the meeting. He did not remember saying “I didn’t have intercourse with you”. On cross-examination, Mr. R.N. was asked about each of the statements attributed to him by H., Ve. and T. at this meeting. On occasion he answered “No, I didn’t say that” and on other occasions he said “I don’t know what I said” or “I don’t remember” or “I don’t remember anything that happened there”. It was quite clear to me in listening to him that he had very little actual recollection of the meeting beyond the fact that H. stated that he had molested her. He stated on a number of occasions that he was in shock or could not believe it. He was not shaken on cross-examination so much as being led to acknowledge the degree to which he simply had no present memory to consult regarding the matters on which he was being questioned.
46P.1 was the last witness to testify about the events that occurred at this meeting. She described H. as arriving quite unannounced some hours prior to the barbecue to which she and her family had been invited. Mr. R.N., Ve., Ra., T. and H. were all gathered in the small living room of the house. P.1 said that she had been in the kitchen to get herself a cup of coffee or tea and, while coming into the living room H. simply told her: “I came to tell you something” and “I want to tell you that your husband molested me. He fondled my breasts”. P.1 remembered that she began to shake and then sat down beside Ra. and was crying on his shoulder. She said that during this time, her husband “just sat there like stone” and said nothing at all. She recalled Ra., Ve. and H. and T. whispering something to each other but she could not hear what they were saying. Everybody then left. She recalled her sister surprising her in the back yard by coming out to talk with her there after she thought Ve. had left.
47I do not propose to review the conflicting evidence about what each sister is alleged to have said to the other in the backyard. They disagree with each other, but neither account is particularly relevant to the charges I must consider.
Issues to be determined
48The accused is charged with indecent assault under s. 141(1) of the Criminal Code, S.C. 1953-54, c. 51. All references to the Criminal Code herein are to the version in effect in 1966 when the incidents are alleged to have occurred.
49At the relevant time, s.141(1) of the Criminal Code provided that “Every one who indecently assaults a female person is guilty of an indictable offence”. Section 132 provided that “where an accused is charged with an offence under section …141…in respect of a person under the age of fourteen years, the fact that the person consented to the commission of the offence is not a defence to the charge”.
50“Indecent assault” refers to an assault in indecent circumstances. There is no doubt that the incidents described by H. – if proved beyond a reasonable doubt – satisfy all these requirements.
51As described by the complainant, the incidents clearly amount to an assault. H. alleged that on each such occasion the accused touched her – an application of force. The touching described was clearly not accidental but intentional in nature – a fact that can readily be inferred both from the nature of the touching described and from the words attributed to the accused at the time of the touching in question. The touching described was clearly non-consensual and known to be non-consensual by the accused, s. 132 of the Criminal Code at the time precluding the assertion of consent as a defence by reason of the young age of the complainant. There can be no question that the young age of the complainant was plain and obvious to the accused. Finally, there can be no question that the assaults described were indecent in nature having regard to the nature of the unwanted touching described upon the complainant’s breasts and pubic area, both above and underneath her clothing.
52The fundamental issue before me is whether the evidence persuades me beyond a reasonable doubt that some or all these events actually occurred and did so substantially in the manner described by the complainant.
53The accused testified in his own behalf during this trial and denied that he committed any of the acts of indecent assault as alleged by the complainant. Whatever reservations I may have regarding the state of Mr. R.N.’s memory, his denial was both clear and unequivocal: not only did none of the incidents ever occur, he unequivocally denied that the opportunity for them to have happened ever arose either.
54In these circumstances, it is incumbent upon me to ensure that I keep top of mind the instruction summarized by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 SCR 742, 1991 CanLII 93 (SCC). If I accept Mr. R.N.’s testimony that he did not commit the crimes alleged, I must acquit him. Even if I reject his testimony, if his testimony has raised a reasonable doubt in my mind regarding his guilt of any of the crimes alleged, then I must acquit him of those charges. Finally, even if his testimony does not raise such a reasonable doubt, I must consider whether all the evidence I do accept raises a reasonable doubt about his guilt.
55Of course, evidence is not assessed in a vacuum. My conclusions regarding whether I accept Mr. R.N.’s testimony, for example, are not determined solely by reference to his testimony and his testimony alone. The plausibility and credibility of much of what he testified to is necessarily weighed and assessed in light of all of the evidence. The reverse is also true – other evidence is assessed in the light of all of the evidence including that of Mr. R.N.. The point of the three-part test described in W(D) is the discipline it imposes to ensure that conclusions on facts going to guilt or innocence are reached in a fashion that fully and completely acknowledges the essential role of the presumption of innocence and the Crown’s corresponding burden of proof beyond a reasonable doubt at every stage in the evaluation of evidence. It must be clear that rejecting the evidence of an accused person who testifies in no way implies a corresponding inference of guilt or an inference of credibility of other evidence of his or her guilt. The Crown’s burden of proof is not reduced nor is the presumption of innocence diminished when the accused elects to testify.
Findings and conclusions
56Fifty plus years after the events giving rise to the charges, my task is by definition a difficult one. Human memory is frail even over short spans of time and without the intervention of any organic memory impairment. Here, my task is further complicated by the fact that the accused is now elderly, in failing health and, while found fit to stand trial, remains subject to certain cognitive issues. Two of the other witnesses – the accused’s wife P.1 and the complainant’s mother Ve., are also in their eighties. While both appeared alert and sharp, they too suffer from inevitable deficiencies in memory regarding details of events so far in the past, particularly events that were viewed as quite unremarkable at the time. H.’s allegations were first made known to third parties no earlier than 1980, fourteen years after the fact. None of the other witnesses had any particular reason to fix any events prior to then in their memory.
(a) Credibility
(i) H.
57H.’s testimony was thoroughly tested under cross-examination and minutely compared to the evidence she gave in September 2015 when interviewed under oath by police and in April 2017 at the preliminary inquiry. The defence urged me to conclude from inconsistencies that emerged under cross-examination that H.’s evidence ought to be treated with great caution or rejected entirely. At all events, the defence suggested these inconsistencies ought to give rise to reasonable doubt as to the guilt of Mr. R.N..
58The defence pointed to a number of details mentioned at trial and not mentioned in the police statement or at the preliminary inquiry or vice versa. I list a few of such instances below:
a. Failure to mention at trial that her pink flannel pyjamas also had white polka dots;
b. Failure to mention at trial that she “wondered if I was dreaming” in relation to being awakened and fondled by Mr. R.N. while babysitting;
c. Failure to mention at trial that Mr. R.N. pointed to his own jeans during the babysitting incident and commented on the erection he was experiencing;
d. Her trial evidence mentioned the accused placing his finger inside her vagina, a detail not specifically mentioned in the prior statements; and
e. Failure to mention in prior statements (as she mentioned at trial) that she told her uncle “Don’t touch me again” after the attempted fondling incident when she visited in 1970 after receiving her licence.
59In a similar manner, there were instances where H.’s evidence at trial contradicted aspects of her evidence recorded at the preliminary inquiry or at the time of the police statement. I include a partial list of such inconsistencies below:
a. She quoted her uncle as commenting that her breasts were “not any bigger” at the preliminary inquiry as compared to “a little bit bigger” in her police statement;
b. She estimated the babysitting incident as having occurred in January or February 1966 at the preliminary inquiry but not until March or April 1966 at trial;
c. She estimated that she had come over to babysit immediately after school at the preliminary inquiry as compared to estimating her arrival time as being near 6 p.m. at trial; and
d. Her estimates of how long the “short time” these incidents lasted varied from ten to fifteen minutes.
60In my view, none of the minor imperfections in H.’s testimony when compared and contrasted to the two prior statements were material or operate to detract from her credibility when considered alone or cumulatively. It would have been far more remarkable had she repeated identical accounts of these incidents each time. The context of the statements often showed that H. was unsure of a detail but provided her best answer. Statements regarding the sequence and timing of distant events is necessarily an exercise in triangulation from other known dates and times and is understandably approximate. Expecting an ordinary mortal to have accurate recall of time, place and detail not only of a traumatic incident but also of all manner of details incidental to it fifty years after the fact would be unreasonable. H. has been more than reasonably consistent as to the important elements of her story throughout. She was unshaken on the essence of her testimony.
61Overall I found H. to be a good witness prone neither to exaggeration nor false certainties. For example, she simply had few memories of her younger cousin Ro. being present and frankly admitted as much. She didn’t recall him being at her school when she was in Grade 7 (he was then in Grade 1) and she had no memory of where he was on the occasions when she came over to play with the baby. I find nothing unusual in this. She was drawn to baby K. at the time and wanted to play with her – something that Mr. R.N. himself was able to recall. Ro. was much younger than her but was not a baby and clearly not of as much interest to her at the time. She did not invent a non-existent memory of Ro. but frankly admitted that she simply had none. Where she was not sure of a detail, she did not hesitate to admit that it was possible. She also readily admitted where her prior statements had been the result of conjecture as, for example, when she had estimated the number of fondling incidents based upon the frequency of Mr. R.N.’s night shifts (when he would be expected to be home in the afternoon).
62The foregoing being said, there were instances where H. might have done well to be a little more explicit when she was providing only a best guess or estimate of a time or detail. While I had a generally favourable view of her credibility, I was not drawn to attach undue weight to her time estimates which were, by and large, simply approximations worked out after the fact by reference to facts she could remember (e.g. whether something occurred before or after she changed schools).
(ii) T.
63H.’s husband T. did not meet H. until 1975 and they were married in 1976. T. did not know H.’s extended family well and had only a limited time to get to know them before the 1980 confrontation effectively severed future relations. He had a clear and unshaken memory of what were for him the most notable aspects of the confrontation incident. His testimony was to my observation both clear and credible. He came across neither as motivated by bitterness towards the accused nor blinded by loyalty to his wife.
64T. was generally a man of a few carefully chosen words rather than someone who would speculate or guess about an answer. He testified carefully and did not claim to remember more than the relatively high-level points that he related. On these details however he was unshakeable. He knew what he did not remember, even if the matters on which he had no memory were subjects that might have tended to support his wife. He was not at all inclined to stray into mistaking speculation or wishful thinking for actual memory. His testimony confirmed the broad lines of H. and Ve.’s testimony as regards the confrontation meeting in 1980. There were of course inevitable differences between the evidence of these witnesses about the same event. In my view, these differences tended to enhance and not detract from T.’s credibility. This was not a rehearsed performance recently-learned but a sincere effort to bring forth from memory, unvarnished, that part of the events that he could recall and no more. I attach great weight to his testimony.
(iii) Ve.
65Ve. was 89 years of age at the time she testified. Although advanced in age, Ve. was sharp and alert. Her memory was not perfect to be sure, but it was clear as to the broad lines. Like her son-in-law T., she did not claim clear memory of matters that she had little reason to recall from long ago with clarity. I found her testimony about the state of family relations in the 1966-1980 time frame (i.e. prior to the confrontation meeting) to have been frank and quite believable. She neither minimized nor exaggerated. The three sisters and their families lived close to each other and were in fairly close touch prior to September 1980. Her daughter visited her cousins and babysat from time to time. She was shaken to her core by H.’s allegations when she first heard them and frankly admitted to an unquestioning belief in her daughter. Prior to that time, she had no inkling of any trouble. Thereafter, things were never the same. She tried to stay in touch with her sister P.1 but they frequently ended up bickering about this issue. All of this was told very simply and believably.
66Her relevant evidence was primarily confined to confirming H.’s evidence regarding the opportunity for the offences to have occurred (she confirmed that H. did babysit and that she did stop by the N. apartment to visit her cousins) and to confirm some of the details of Mr. R.N.’s alleged confession in September 1980. On these issues, I also found her to be direct and credible, recounting the relatively few details she did recall simply and without embellishment. There was no sense of a conscious effort to align her evidence with that of H. and indeed it was apparent that even to this time H. has not relayed details of the incidents in any significant detail to her own family. I found Ve. to be a credible witness as well.
(iv) Mr. R.N.
67Mr. R.N. is 85 years old. He suffers from leukemia and diabetes and has some symptoms of Alzheimer’s disease. He is following medical treatment for these conditions. He is quite aware of his medical issues, including his memory deficiencies. I was also able to observe his cognitive issues myself and granted his counsel a wide degree of latitude to lead his client through his testimony as a result. There were clearly large holes in his memory where only some impressions remained. There were times where he denied that something had ever happened only to remember a few moments later the very thing that he had been unable to recall earlier. On other occasions it was clear that he simply lacks any memory of some events one way or the other. When cross-examined about whether any of the incidents had occurred, he frequently had to admit that he did not remember.
68I noted above Mr. R.N.’s assertion that he was “sure” that he had never picked his son up after school and that a few moments later he was equally sure that he had done so only on the one occasion when he also picked up H.. I find it impossible to credit his certainty that this occurred only once with any weight. I attach no greater weight to Mr. R.N.’s assertion that he slept until his wife came home to wake him at dinner time when he had night shifts – his memories of doing so were clearly associated with his wife working, something she was not doing in 1966. His memories of such details were clearly patchy and prone to being conflated with other memories.
69I do not draw a negative inference from any instances where Mr. R.N. answered a question about an important matter with “I do not remember” or similar words. His memory is clearly intermittently accessible in some areas and entirely gone in others. Allowances must be made and I have done my best to make them.
70Although Mr. R.N. clearly and consistently denied having ever molested his niece, I simply cannot accept his denials at face value. Through no fault of his own, his memory is simply too unreliable to enable me to accept, for example, his claims that the opportunity for these crimes to have been committed simply never arose.
71Apart from any conclusion I might reach as to the sincerity of Mr. R.N.’s denials of guilty on the substantive charges, I must conclude that his memory is simply too frail and spotty to be considered reliable, at least as regards the issues critical to this case.
(v) P.1
72P.1 also testified for the defence. There is of course no suggestion that P.1 ever saw any of the alleged indecent assaults occur. Her relevant evidence went to the question of whether the opportunity for the offences to have been committed existed (i.e. whether H. was ever asked to babysit or was ever alone with her husband in the family’s apartment during the relevant time frame) and whether her husband made any admissions after being confronted with H.’s allegations in or about September 1980. She strongly denied that her husband ever had the opportunity to commit the crimes as alleged and strongly denied that he said anything at all at the September 1980 confrontation meeting.
73I found many of P.1’s assertions and denials to be simply too categorical and often displayed a “circling the wagons” type of defensiveness. The tone of her responses often bordered on scolding. She frequently asserted things as absolutely and unquestionably true where prudence and an understandably imperfect memory of distant events ought to have counselled a more qualified response. Her back-tracking on the episode regarding P.2’s first birthday party in […] 1980 is a case in point. P.1’s testimony was too prone to exaggeration and defensiveness to be relied upon by me without strong reservations.
(b) Findings regarding the September 1980 confrontation meeting
74I am bringing my consideration of the September meeting to the fore for a reason. I have concluded that I accept the evidence of H., Ve. and T. as to the gist of what occurred at this confrontation. I therefore find that Mr. R.N. made statements amounting to a partial admission on that occasion. He clearly admitted that there was at least some truth to the allegation made by H. at that time even if he did not admit any particular details. These conclusions are by no means the only reason I have accepted H.’s evidence regarding the incidents themselves and rejected Mr. R.N.’s denials. However, they carry material weight and I think it logical to explain my conclusions in relation to them up front.
75I have described the statements as a partial admission because H. did not purport to describe the actual incidents being tried before me to those present at that meeting in any detail at all. She limited herself to accusing Mr. R.N. of having sexually molested her when she was 11 years of age. She did not mention the babysitting incident or the after-school incidents specifically. She did not mention that at least one incident also occurred when she was 12 (she turned 12 in […] 1966). Her accusation was general and thus any admission or partial admission was similarly general in nature only.
76The evidence of H., Ve. and T. differs as to some details, but all concur that Mr. R.N. did in fact reply to H.’s accusation. Their evidence was persuasive, credible and did not appear in any way to be rehearsed. P.1 just as strongly asserted that her husband said nothing at all – a position with which Mr. R.N. agreed. I do not accept that evidence.
77Did P.1 hear what her husband said? I cannot say for certain. By her own admission, she was sobbing upon hearing H. make this surprising and no doubt shocking accusation against her husband. She was being comforted by H.’s now-deceased father Ra. on whose shoulder she was quite literally crying. She described the others present as “whispering” to each other after H. made her accusation in an indistinct manner that she could not hear. Among those she described as inaudibly “whispering” was Ra. on whose shoulder she was crying. Nevertheless she claimed to be sure that her husband was silent the whole time. It is certainly possible that she may not have heard anything at all of what her husband said under the shock of the circumstances and over her own sobbing.
78I do not at all events accept that her evidence that Mr. R.N. said nothing at all and that the others took up a quiet, whispered conversation. The suggestion is entirely lacking in plausibility and is denied by the others present who testified.
79I prefer and accept the evidence of H., Ve. and T. regarding this incident. I find that Mr. R.N. responded to H.’s accusation that he had sexually molested her at age 11 by denying he had ever had sexual intercourse with her. I find that he also admitted to having “played around” with H. but to having stopped himself before things had gone “too far” (or words to similar effect) or hurt her. Finally, I find that he uttered words of apology to H.’s father Ra. and to H.’s husband T..
80As noted, these admissions are not admissions of the actual incidents with which Mr. R.N. stands charged. At the highest, they are a qualified admission that “something” occurred between them when H. was 11 that he stopped before it went “too far”, but that the something did not go so far as sexual intercourse (H. has never alleged that it did). The fact of apologies offered both to Ra. and to T. also confirms that the “something” that did occur was something wrong for which an apology of some kind was called and the fact that it was offered in the context of an allegation of sexual molestation of an 11 year old niece leads strongly to the conclusion that the apology was offered in regards to that subject-matter and not something else.
81My finding that these statements were in fact made by Mr. R.N. in September 1980 – a finding I make with a level of confidence that admits of no reasonable doubt – necessarily bears upon my assessment of his own evidence regarding the actual incidents and my assessment of H.’s evidence regarding those same incidents. At the very least, Mr. R.N.’s admissions lend some level of credence to H.’s testimony about those incidents. His admissions – even as narrowly as I have cast them – are not inconsistent with her account and offer some level of general corroboration. He admitted that something untoward did in fact occur even if he has not fully admitted the precise details of the incident.
(c) Findings regarding the babysitting event
82I shall first consider the suggestion that H. never babysat for K., in 1966 or indeed ever as alleged by P.1 and the accused. If true, this would fundamentally undermine H.’s credibility and fatally undermine the foundation of the first count in the indictment. I must also approach the question from the W(D) perspective, remembering that a failure of the defence to prove this allegation of lack of opportunity does not entail a finding that H.’s allegations are true. It would be sufficient were this evidence to introduce a reasonable doubt as to the truth of H.’s allegations.
83H. has credibly testified that she did indeed babysit at the N. apartment on at least one occasion. Her mother has corroborated her and I have found Ve.’s testimony to be credible as well. These credible statements also appear to me to be quite plausible. H. was quite taken by her little cousin K. and wanted to play with her – something that her uncle R.N. was able to remember at trial. While the baby was young, she was not so young that it was inconceivable that P.1 would leave her in the care of H. for a couple of hours, particularly with responsible adults being only a few minutes away at the end of a telephone line (I have no evidence one way or the other about the baby’s sleeping or feeding schedule at that time).
84I accept P.1’s evidence that she had babysitting generally available to her in the building from two women who lived there. However, this does not detract from the plausibility of P.1 having found a need to call on her sister to have H. come over to help out on a discrete occasion. This may have been to save money or because babysitting was not available that particular day for some reason. I agree with the defence that this would be an unlikely scenario with a three month old baby were H.’s earliest estimate of the date (January 1966) to be assumed to be true. However, that would be to place an undue burden of precision on H.’s time estimate that cannot be considered as more than that – an estimate.
85I have no hesitation in finding that I prefer Ve. and H.’s testimony that H. did indeed babysit at the N. apartment on at least one occasion. I do not reject H.’s evidence that this occurred in March or April 1966 so much as I note the necessarily approximate nature of H.’s time estimate so many years later. At all events, I take H.’s evidence to be that the incident occurred before the end of the Grade 6 school year in June. I find no need to parse events more finely than that.
86H.’s evidence of what did occur while babysitting that evening has not been recalled with 100% consistency when she has been called upon to repeat it in the course of these proceedings. As noted, she has placed the timing of the incident as early as January and as late as April in 1966 and as early as after school and as late as 6 p.m. on the day. Each telling has involved at least some details mentioned or not mentioned in another telling. I find that none of those inconsistencies has risen to such a level of materiality as to place the fundamental assertion – that her uncle subjected her to an indecent assault – in any doubt whatsoever. To the contrary, a neatly rehearsed and perfectly repeated story should almost certainly have been pointed to as evidence of fabrication had H.’s evidence been otherwise.
87I found H.’s evidence regarding this first incident to have been measured, believable and unshaken in its main points. It is also partially corroborated by the statements made by the accused in September 1980 that I have found confirm Mr. R.N.’s admission that something of this nature occurred in this time frame. Finally, I am unable to accept the denials of Mr. R.N. in light of all of the evidence that I do accept.
88I find that H. did in fact babysit at the N. apartment prior to the end of H.’s Grade 6 year in June 1966. I find that Mr. R.N. returned to the apartment prior to his wife that evening and woke up a sleeping H. on the couch. I find that he proceeded to fondle her breast and pubic areas in a manner and in circumstances that were without a doubt indecent. He did so consciously and deliberately, knowing where he was placing his hand and how old his niece was. He cautioned her to tell no one about what happened, and she complied with this request for fourteen years.
89Mr. R.N.’s evidence has not raised a reasonable doubt in my mind as to what occurred. The evidence I have accepted has proved the elements of this offence beyond a reasonable doubt.
(d) Findings regarding after-school incidents
90My analysis of the after-school incidents follows much the same path as my analysis of the baby-sitting incident. I am unable to accept the defence suggestion that the opportunity to commit this offence simply did not exist. Mr. R.N. was home in the after-school period every third week in addition to other occasions where he had a day off for some reason. Mr. R.N. admitted to having taken baby K. in a stroller over to pick up Ro. after school on one occasion and having returned home with H. on that occasion in terms that substantially agree with H.’s description. I can attach no credibility to his categorical assertion that this situation happened but once and was never repeated. In addition to being home in the afternoon every third week when he had night shifts, he agreed that there may have been other occasions where he had a weekday off that he could not now remember. His memory of his hours and shifts was, understandably, somewhat confused. His memory is entirely too unreliable for me to accept the assertion that the accused picked up his son after school on only one occasion in 1966-1968 (being the year the family moved to Mississauga).
91H.’s claim to have visited the apartment after school at that age is thus quite plausible. She was attached to baby K. and the N. apartment was close by the school. Since Ro. attended the same school, Mr. R.N. had every opportunity to run into H. and invite her back to the apartment while picking up his own son on occasions where by reason of his shift or a day off he was at home and awake. Ve., who would have had good reason to know where her daughter was going after school, generally corroborated H.’s evidence about this. P.1’s firm assertion that her husband only picked Ro. up after school on one occasion despite being home at that time every third week lacks credibility. There is no particular reason why P.1 would know – or remember – that H. had been over to visit if Mr. R.N. only waited for H. on occasions where he knew P.1 was out.
92I find that H. did in fact accompany Mr. R.N. back to the apartment on several occasions when she was in Grade 6 and continuing into the early weeks of Grade 7.
93H. related three distinct after-school incidents from among many: Two while she was still in Grade 6 and one later in 1966 after she started Grade 7 and was having her menstrual period after turning 12. Her evidence was credible and plausible. It is partially corroborated by Mr. R.N. (whose statements in September 1980 confirm that something did in fact occur in this time frame). Mr. R.N.’s denials cannot be accepted by me in light of the evidence I do accept, including his own statements in September 1980.
94I find that on at least two occasions in or about June 1966 and one occasion between September and December 1966 that Mr. R.N. brought H. back to the apartment to play with her cousins after school at times when P.1 was out of the apartment. On each of these occasions, Mr. R.N. consciously and deliberately touched H. in an indecent manner knowing that she was a child under fourteen years of age and in no position to consent to such activity. This touching included reaching under her skirt to touch her vagina or sanitary napkin and reaching under her shirt and/or bra to touch her breasts.
Disposition
95It follows from my conclusions regarding the facts, that I must find Mr. R.N. guilty as charged of the first two counts of the indictment. The Crown has proved beyond a reasonable doubt that Mr. R.N. indecently assaulted H. on between January 1, 1966 and September 30, 1966 (Count 1) and between September 1, 1966 and December 31, 1966 (Count 2). A guilty verdict will be entered on Counts 1 and 2, Count 3 having been withdrawn by the Crown at the conclusion of the trial.
S.F. Dunphy J.
Date: May 6, 2019
1The third count, alleging an incident in 1968, was withdrawn during final argument.