OSHAWA COURT FILE NO.: CR-18-14780
DATE: 20190912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
D. Portolese, for the Crown
– and –
W.N.
Defendant
R.D. Greenway, for the Defendant
HEARD: July 15-18, 2019
reasons for decision
Dawe J.
[1] W.N. stands charged with committing various sexual offences against his granddaughter J.N. when she was a young child. The complainant, who is now 18 years old, alleges that over a four- or five-year time period, beginning when she was in grade one and ending when she was in either grades four or five, her grandfather regularly had her touch his penis while she sat on his lap during visits to her grandparents’ house. She also alleges that during some of these incidents he touched her vagina with his hand.
[2] W.N. stands charged with three offences: sexual assault (Count 1), sexual interference (Count 2) and invitation to sexual touching (Count 3). Although these counts are all particularized to span a seven-year period between June 16, 2006 and June 16, 2013, J.N.’s evidence at trial was that the underlying incidents actually all occurred within a somewhat shorter time period, between approximately 2006 and 2011.[1]
[3] W.N. testified in his own defence and denied ever touching J.N. in a sexual manner or ever inviting her to touch him sexually.
I. The Evidence
A. Undisputed background facts
[4] W.N. and his wife C.N. are the complainant J.N.’s paternal grandparents. J.N.’s own parents – her father B.N. and her mother S.B.N. – separated in or around 2010. They have no other children together, but S.B.N. has two other sons from a previous relationship who are seven and eight years older than J.N.
[5] During the relevant time period W.N. and C.N. were both retired and lived together on a five-acre farm outside Newcastle, where they keep horses. The horses were C.N.’s hobby and she took primary charge of feeding, exercising and cleaning up after them. At some point the N’s bought a horse for J.N. and she began taking riding lessons in the neighbourhood.
[6] The N.’s house is a bungalow with a partially finished basement. During the relevant time period W.N. and C.N. slept in separate bedrooms on the main floor, and there was a third bedroom off the same hallway that served as a TV room, and which was where J.N. would sleep during visits when she spent the night. The furnished part of the basement consisted of a den in which there was another TV set, and a small room off this den where W.N. kept his computer. The computer room had a ventilation fan and was the only place in the house where W.N. was allowed to smoke.
B. The Crown’s evidence
1. J.N.’s evidence
[7] On May 15, 2017, when J.N. was 15 years old, she made a video-recorded statement to Det. Cst. Hancock, which I permitted the Crown to adduce for the truth of its contents under s. 715.1 of the Criminal Code. At trial J.N., who was now 18 years old, testified briefly in chief and adopted her police statement. She was then cross-examined at somewhat greater length by defence counsel.
[8] J.N.’s evidence was that when she was a young child she regularly visited her paternal grandparents’ house, sometimes after school and sometimes on the weekend. During some of these visits she would spend the night. At some point J.N.’s grandparents bought her a horse that she kept stabled in their barn, and she began taking riding lessons in the neighbourhood. In her police statement she explained that her visits to her grandparents’ house were “not like every day”, but estimated that she was there “almost every weekend”.
[9] When J.N. was in grade one she disliked her teacher and began feigning sickness so that she could leave school early. Since her parents both worked, her grandmother C.N. would pick her up from school and babysit her. J.N. was very close to her grandmother but did not have a close relationship with her grandfather W.N, who she described to the police as spending his time “in his basement, on his computer in his track suit”.
[10] J.N. told the police that during her visits to her grandparents’ house C.N. would usually at some point have to go out to the barn to tend to the horses, leaving J.N. alone in the house with W.N. When this happened J.N. would go down to the basement and chat with her grandfather and sometimes played with an electric piano he kept in the computer room. He would eventually call her over to the computer to watch a video with him. She told the police:
It wasn’t like porn, but it wasn’t like – I don’t know what it’s called. Like I don’t know what it would be. It would be something sexual, but wouldn’t necessarily be porn, or he’d like show actual porn to me.
J.N. could not remember the specific details of the videos she was shown, but recalled that they depicted adults and showed “girls doing … things to the guys”. Although J.N. told D.C. Hancock that she recalled her grandfather “a lot of time … finding videos like just on YouTube”, in cross-examination at trial she explained that her “one vivid memory” of W.N. showing her a pornographic video took place in the basement den, and that on this occasion the video was shown to her on the TV set rather than on the computer screen.
[11] After W.N. showed J.N. a video he would “turn it off, and just ask me to do what I saw. Like what was happening on TV, he’d want to like re-enact it.” J.N. explained more specifically that W.N. would have her perform “hand jobs” on him while she sat on his lap. She also recalled that he once asked her to perform fellatio on him, but that she refused. Sometimes when J.N. sat on W.N.’s lap he would finger her vagina.
[12] J.N. explained that during these incidents W.N. would be wearing track pants, which he would pull “down a little”. She explained further that he would “usually just take my pants off, and I’d have my shirt on”. Following these incidents J.N. would go back upstairs. She recalled sometimes having to urinate and feeling a burning sensation when she did so, but later clarified that she did not recall experiencing any medical problems as a result of being touched by her grandfather.
[13] J.N. told the police that the incidents of sexual touching happened both in the computer room and on the couch in the basement den, but not anywhere else in the house. She did not recall these incidents ever being interrupted by her grandmother returning to the house and coming down to the basement, although she agreed that there were a number of other times when she was in the basement den or computer room and her grandmother walked in on her unexpectedly and surprised her.
[14] Near the conclusion of her police statement J.N. initially said that she had nothing further to add. However, when D.C. Hancock asked J.N. if she ever recalled W.N. ejaculating, J.N. proceeded to describe a single occasion when she recalled him putting on a condom and ejaculating into it. At trial, J.N. explained that she had not previously recalled this incident and that D.C. Hancock’s mention of ejaculation had “pulled something from my memory that I wasn’t able to remember at the time”.
[15] J.N. told the police that the incidents of sexual touching with her grandfather started when she was in grade one and continued until she was in grade four or grade five, when she was between eight and ten years old. She recalled that once, when she was in grade five, W.N. had asked her “why don’t we do that stuff that we used to do anymore”, and had added that it had been “fun” and “not a bad thing”. J.N. had replied that it made her uncomfortable and that she didn’t want to do it. J.N. also told the police that on another occasion W.N. “threatened to like tell my parents if we didn’t do it anymore”, and that once he said that her not wanting to talk to him made him “so sad … that he want[ed] to jump off a cliff”.
[16] In her police statement, J.N. estimated that during the years that the sexual touching was taking place there would be incidents “maybe two times a week, maybe like every other week”. She revised this estimate downward in cross-examination, testifying that the incidents probably happened somewhere between thirty and fifty times a year, and were probably more frequent in the earlier years when she required babysitting more often.
[17] J.N. agreed in cross-examination that she sometimes accompanied her grandmother when C.N. went out to the barn to tend to the horses, but disagreed that this was what she did most of the time. She also agreed that her visits to the house did not always overlap with her grandmother’s barn chore time, and agreed that incidents of sexual touching did not occur every time she visited her grandparents’ house.
[18] J.N. was also cross-examined at length about the layout of her grandparents’ house. The focus of defence counsel’s questioning was to support his position that it was implausible that W.N. could have sexually molested J.N. in the basement as frequently as she maintained without her grandmother at some point walking in on them.
[19] J.N. did not tell anyone what W.N. had done until May 2017, when she was fifteen years old and told a friend that her grandfather had sexually abused her. Her friend encouraged her to tell her mother, who in turn called the police. J.N. made her video recorded police statement within a few days of her initial disclosure to her friend.
2. J.N.’s parents’ evidence
[20] The Crown also called J.N.’s own mother and father as witnesses. Her father B.N. testified that when J.N. was a child she would go to her paternal grandparents’ house two or three times a month on average, and would usually spend the night there. J.N.’s two stepbrothers, who were not B.N.’s own children or the N.’s grandchildren, only rarely accompanied her on these visits. B.N. recalled that when he would pick up J.N. from his parents’ house she would usually be in the house, either upstairs or in the basement, or out at the barn.
[21] B.N. testified that his parents only moved to their farmhouse some time after he had left home to go to college. His marriage to J.N.’s mother ended in around 2010 and he subsequently began a new relationship with another woman. In early 2017 he and his current spouse had had relationship problems that resulted in B.N. temporarily moving in with his parents for a few months. He was working during the day and did not spend much time at the house, but testified that when he was there his father spent most of his time in his bedroom or in the basement, while his mother spent most of her time upstairs or out in the barn. His recollection from this period was that his parents rarely interacted with each other, and that his mother did not often go down to the basement because W.N. smoked there and C.N. did not like the smell. B.N. testified that he once saw “an inappropriate picture of [his] wife” on his father’s basement computer but never saw any pornographic images or recordings.
[22] J.N.’s mother S.B.N. testified that J.N. went over to her grandparents’ house on a fairly regular basis until she was eleven or twelve, when she became more independent and preferred to spend time with her friends. By this time she had also become heavily involved in playing sports, which took up much of her free time.
[23] S.B.N. testified that starting when J.N. was around five years old she began to experience “fairly regular” vaginal yeast infections, which persisted until she was around eight years old. S.B.N. attributed these occurrences to poor bathroom hygiene and treated her daughter with over-the-counter medication, which seemed to be effective in the short term. She did not recall ever taking J.N. to a doctor for treatment.
C. The defence evidence
1. W.N.’s testimony
[24] W.N. testified and denied J.N.’s sexual touching allegations. He explained that while J.N. had a very close bond with her grandmother C.N., based in part on their shared interest in horses, his own relationship with J.N. when she was a young child had merely been “OK”. J.N.’s parents frequently used him and C.N. as babysitters and she was often at their home, but W.N. explained that this was such a regular thing that when J.N. was there he “didn’t change my routine or anything because it wasn’t like she just popped in to visit”. It was almost always C.N. who went to pick up J.N. from school, and at the house J.N. spent much more time with C.N. than with W.N. He explained that when J.N. came over he usually just kept doing whatever it was he had been doing previously, which typically consisted of chores or projects around the house or activities on his computer, and that it was his wife C.N. who “was the one who would be taking care of her, basically”. When J.N. was not spending time with C.N. she was usually doing things on her own electronic devices.
[25] W.N. acknowledged that he spent a lot of time on his computer, but explained that he only used it in connection with his three main hobbies, which were downloading instructions for DIY projects, creating karaoke playlists that he and a friend played at weddings and other events, and playing card games. He denied ever using his computer to access pornography. W.N. testified that one of the reasons he liked to spend time in the computer room was because it was ventilated to the outside and was for this reason the only room in the house where C.N. permitted him to smoke. Although W.N. acknowledged that they probably did not yet have Wi-Fi installed at their home when J.N. was a young child, he did not recall J.N. ever using his computer to access the internet, and added that once they did get Wi-Fi she was able to access the internet using her own electronic devices. W.N. denied ever showing J.N. anything on his computer, explaining: “I never found anything on my computer I thought she would like”. He vociferously denied the Crown’s suggestion that he took it upon himself to educate J.N. about sex, testifying: “If she didn’t know anything about sex, she wasn’t going to learn it from me, you can bet your bottom dollar on that.”
[26] W.N. testified further that while they had a VCR connected to the upstairs TV, which his wife used to record soap operas, there was no VCR or DVD player attached to the TV in the basement, which was only connected to a terrestrial antenna and could only show broadcast channels. He explained that the doors to the basement den from the unfinished part of the basement and from the den to the computer room were always kept open.
[27] W.N. acknowledged that J.N. did sometimes come down to the basement and spend time in the computer room when he was there, explaining:
There was an old electric piano there that I unfortunately taught her how to use, and she nearly drove me crazy on. She liked making noise on that, is what I would call it.
W.N. explained that he had showed J.N. how to turn on the piano and use the various controls but that this only took five minutes. He had never tried to give her actual piano lessons because he did not himself know how to play the piano. W.N. testified further that J.N. also got a “big kick” out of coming over to where he was sitting and trying to “stick her fingers down my neck to make me gag”, which involved climbing onto his lap. He would “let her do that for as long as [he could] take it, and then have to boot her off.” However, he adamantly denied ever touching her in a sexual manner or inviting her to touch him sexually.
2. C.N.’s testimony
[28] C.N. was called as a witness by the defence, but only after having been compelled by a subpoena to attend court. When asked early in direct examination whether she resided with W.N., she replied: “He’s in the house, too”. She later agreed that they lived “generally separate lives”, which for many years had included sleeping in separate bedrooms. When W.N. was arrested and charged with the offences at bar C.N. had been asked to act as his surety but had refused to do so, explaining that she was “devastated” by J.N.’s allegations and didn’t want to appear to be taking W.N.’s side against her son and granddaughter. She agreed that during the years since J.N. made her allegations against W.N. she had remained in regular contact with her granddaughter and testified that she spoke more often with J.N. than with her husband W.N., even though they still lived under the same roof.
[29] C.N. testified that during the years in question W.N. and J.N. spent “some time” together, “but not a lot”. She recalled occasionally seeing them using the basement karaoke machine together but estimated that this only happened perhaps 20 or 25 times over the course of J.N.’s childhood. C.N. never saw them doing anything else together in the basement and never saw J.N. using W.N.’s computer. She also confirmed W.N.’s testimony that the basement TV could only access a few channels and was not connected to a video disc or tape player. She never saw W.N. using his computer to access pornography. C.N. agreed that it would be difficult for anyone in the computer room to hear anyone approaching from the stairs to the main floor until they were standing at the door, and confirmed her husband’s evidence that both this door and the door between the basement den and the unfinished part of the basement were always kept open.
[30] C.N. testified further that during J.N.’s visits her granddaughter “almost always” came out with her to the barn when she went out to tend the horses. However, she agreed that J.N. sometimes got bored and would go back to the house before C.N. had finished her barn chores.
II. Analysis
A. General principles
[31] As in any criminal case without a jury, my task as the trier of fact is to determine whether the evidence that has been presented to me establishes W.N.’s guilt on any or all of the charges against him on the criminal standard of proof beyond a reasonable doubt. The Supreme Court of Canada has explained that a reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence. It is not enough for me to conclude that W.N. is probably guilty of any of the charges against him. While I do not have to be absolutely certain of his guilt to find him guilty, the standard of reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” (R. v. Starr, 2000 SCC 40 at para. 242). In short, in order to find W.N. guilty on any one of the counts with which he stands charged I must be sure, based on all of the evidence before me, that he committed all of the essential elements of the offence that is charged in that count.
[32] While the essential elements of each of the three charged offences in this case are all somewhat different, it is common ground between the parties that if the incidents described by J.N. actually occurred, W.N. would be guilty of all of the charged offences. The real issue in this case is whether the Crown has proved beyond a reasonable doubt that the incidents J.N. describes actually happened.
[33] However, I must also bear in mind that even though J.N. alleges a series of incidents of sexual touching occurring over a multi-year time period, the Crown is not required to prove that all of the incidents she alleges actually occurred. Rather, in relation to Counts 1 and 2 – the sexual assault and sexual interference charges – it is sufficient that the Crown prove beyond a reasonable doubt that W.N. touched J.N.’s vagina at least once during the relevant time period.[2] Likewise, to obtain a finding of guilt on Count 3 – the invitation to sexual touching charge – it is sufficient that the Crown prove beyond a reasonable doubt that W.N. invited J.N. to touch his penis on at least one occasion. Of course, if I am not satisfied that the incidents J.N. described occurred with the frequency she alleges, I will have to consider whether this raises a reasonable doubt in my mind as to whether any of the incidents she described actually happened.
[34] Special considerations apply in cases like this one where the prosecution’s case rests primarily on the evidence of a witness who has described events said to have occurred when he or she was a young child. It would be an error for me to automatically discount J.N.’s evidence for this reason alone. I must also caution myself against relying on outdated or stereotypical assumptions about how a young sexual assault victim “ought” to behave. At the same time, in view of the criminal burden and standard of proof, it would also be an error for me to simply accept J.N.’s evidence uncritically. Rather, I must assess her evidence on “a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case” (R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at para. 25).
[35] Special considerations also apply when, as here, the defendant has responded to the Crown’s case by calling evidence of his own and by taking the witness stand himself and denying the complainant’s allegations. While there is obviously an irreconcilable conflict between J.N. allegations and W.N.’s denials – the alleged sexual touching incidents J.N. describes either happened or they did not – I must bear in mind that it is not my task to choose between their versions and decide which I find more believable. Rather, it follows from the criminal standard and burden of proof that I must acquit W.N. in any of the following situations:
(i) If I believe his testimony that the alleged sexual touching incidents did not happen;
(ii) If I do not affirmatively believe his denials, but his testimony and the other evidence that supports his denials leaves me with a reasonable doubt; or
(iii) If I entirely reject his evidence as unbelievable, but am still not satisfied of his guilt beyond a reasonable doubt based on the evidence that I do accept.
See, e.g., R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[36] I must also bear in mind that W.N. does not bear any burden of explaining why J.N. would make up false allegations against him. Rather, as I have already discussed, it is the Crown’s burden to satisfy me beyond a reasonable doubt that J.N.’s allegations are true, and that at least some of the incidents she described actually happened.
[37] Finally, I caution myself about placing undue reliance on any witness’s testimonial demeanour. As the Ontario Court of Appeal has observed, “while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness” (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 at para. 66).
B. Assessment of the evidence
1. J.N.’s evidence
[38] On behalf of W.N., Mr. Greenway urged me to find that J.N. is both an incredible and an unreliable witness. With respect to her credibility, he pointed to her failure to tell the police that she had been drinking at the time she made her initial disclosure to her friend, and her acknowledgement that she had withheld this information because she thought she might get in trouble if she admitted to the police that she had been drinking while underage. While I agree that a witness’s decision to withhold information from the police can sometimes affect his or her credibility, in the circumstances here I do not think it is fair to characterize J.N.’s omission as a withholding of relevant information or as a failure to be truthful with the police. J.N. did not falsely tell D.C. Hancock that she had not been drinking before making her initial disclosure to her friend, but simply did not mention her drinking when she briefly summarized the events that had led to her police complaint. She was never asked about whether she had been drinking, and in my view there was no particular reason for her to volunteer what was, at most, only a marginally relevant detail. In short, I am not persuaded that it would be fair or appropriate to treat J.N.’s omission as having any bearing on my assessment of her testimonial credibility.
[39] With respect to J.N.’s reliability, Mr. Greenway points to a number of times during the video recorded police interview where J.N. can be seen to be responding to suggestions put to her by D.C. Hancock. The possibility that a complainant’s account may have been influenced by police suggestions is in general a matter of real concern that calls for close scrutiny, particularly when the complainant is a child or is recounting distant events from childhood. However, I do not see most of D.C. Hancock’s suggestions to J.N. as problematic when they are viewed in context. J.N. was plainly embarrassed about discussing sexual matters, and at various times during the interview balked at using specific words in situations where it was clear from the surrounding context what she was very likely trying to say. For instance, J.N. initially told D.C. Hancock, without any suggestions or prompting from the officer, that she had performed “hand jobs” on her grandfather. When D.C. Hancock asked J.N. to explain what she had meant by this, J.N. replied: “My hand would touch his ….”, but then trailed off and did not complete the sentence until D.C. Hancock prompted: “His penis?”. J.N. testified in cross-examination at trial that this had indeed been what she had been trying to say, and that the officer had not been putting words in her mouth. In my view, J.N.’s evidence on this point is entirely believable. Indeed, it is almost nonsensical to imagine that a fifteen year old girl would use the term “hand job” to describe some entirely different activity.
[40] However, I take a different view of D.C. Hancock’s introduction near the end of the interview of the subject of W.N. ejaculating. Up to that point in the interview J.N. had not said anything about her grandfather ever ejaculating, and had expressly said that she could not think of anything else that the officer needed to know. However, once D.C. Hancock raised the subject J.N. suddenly recalled a single incident in which W.N. had ejaculated into a condom. At trial, she confirmed that she had not remembered this incident until D.C. Hancock’s comment had “pulled” it from her memory. In these circumstances, I have a real concern about whether this was a true memory and not something J.N.’s mind confabulated in response to D.C. Hancock’s suggestion. I am not satisfied beyond a reasonable doubt that this particular aspect of J.N.’s account can safely be relied on as accurate.
[41] However, it is important to bear in mind that the alleged condom incident is not the subject of a separate charge in the indictment. To obtain a finding of guilt on the global invitation to sexual touching charge, the Crown does not have to establish that the condom incident described by J.N. actually happened, as long as the Crown can still prove beyond a reasonable doubt that W.N. invited J.N. to touch his penis on at least some occasion. Moreover, in the circumstances here, I do not see the possibility that J.N. may have confabulated one false memory in response to a police suggestion as necessarily undermining the reliability of her other memories, that were not potentially tainted by any similar contamination. I must be mindful that J.N. was trying to recount events that she said happened some years ago when she was a young child, and that she was evidently and entirely unsurprisingly having difficulty remembering specific incidents and details. While this may have made her particularly vulnerable to the danger that her memory might be contaminated by suggestions, I do not think it is either fair or realistic to leap to the conclusion that this makes all of her memories unreliable, even when there is no evidence of any such contamination. Accordingly, while I do have a reasonable doubt about the reliability of her specific memory of the condom incident, this does not on its own cause me to have a reasonable doubt about the reliability of the rest of her evidence.
[42] As noted above, a witness’s testimonial demeanour is a notoriously unreliable indicator of the truthfulness or accuracy of his or her evidence. With that significant caveat in mind, J.N. was nevertheless an impressive witness. She did not overstate things, agreed with reasonable suggestions that were put to her, and generally testified in an apparently forthright and careful manner. While her reluctance to talk about uncomfortable matters both to D.C. Hancock and before me was palpable, it was also entirely understandable in the circumstances. Likewise, while J.N. evidently had some difficulty remembering specific details of distant events from her childhood, this is entirely unsurprising given her age at the time of the alleged incidents and the passage of time. Her account remained largely unshaken on vigorous cross-examination. If J.N.’s evidence stood alone, I would have little difficulty concluding that I believed her evidence.
[43] However, I cannot consider J.N.’s evidence in isolation, but must assess it in the context of the rest of the evidence I have heard. My task is to decide, based on all the evidence, whether the Crown has proved W.N.’s guilt beyond a reasonable doubt.
2. J.N.’s parents’ evidence
[44] In this case, I also heard evidence from two other Crown witnesses, J.N.’s parents. While both struck me as credible and trustworthy, I do not think their evidence moved the needle appreciably in favour of either the Crown or the defence positions.
[45] As noted previously, J.N. was cross-examined at length about the ease with which her grandmother could have come down to the basement unheard and walked in on her and W.N. during the alleged sexual touching incidents. The Crown proceeded to call J.N.’s father B.N. to testify that when he briefly lived with his parents in 2017 they rarely interacted and his mother C.N. avoided going down to the basement because she did not like the smell of her husband smoking. However, B.N. only made these observations some six years or more after the incidents of sexual touching alleged by J.N. had ended. I do not think it can reasonably be inferred that C.N.’s habits in 2017 were necessarily the same as they were during the relevant time period, which is between 2006 and 2011. B.N. did not live with his parents during these years and could not say how often his mother went to the basement during this time frame. In my view, his evidence had no real probative value in relation to the live issues in this case.
[46] With respect to J.N.’s mother S.B.N., Ms. Portolese, on behalf of the Crown, urged me to treat S.B.N.’s description of J.N.’s frequent vaginal yeast infections between the ages of five and eight as corroborating J.N.’s claims that her grandfather was touching her vagina during a partially overlapping time period. In my view, the Crown has utterly failed to present a proper evidential basis that would permit me to draw this conclusion. The Crown has adduced no medical evidence establishing that vaginal yeast infections are likely to be caused by vaginal digital touching, or that the particular symptoms J.N. was experiencing were more likely to be caused by sexual molestation than by poor bathroom hygiene, which was what S.B.N. herself believed at the time. In my view, these are not proper matters on which I can take judicial notice: see, e.g., R. v. Perkins, 2007 ONCA 585 at paras. 36-42. Moreover, J.N.’s own evidence was that her grandfather’s actions did not cause her to experience any medical issues, other than a temporary burning sensation when she urinated immediately after the incidents she described. In these circumstances, S.B.N.’s evidence about J.N.’s childhood yeast infections has no real probative value.
3. C.N.’s evidence
[47] As noted previously, W.N.’s wife C.N. was called as a defence witness. However, as noted above, she testified only under the compulsion of a subpoena, and acknowledged that she had refused to act as her husband’s surety because she did not want to appear to be taking sides against her granddaughter and her own son, B.N.
[48] In her closing submissions, Ms. Portolese argued that C.N.’s reluctance to support her husband by acting as his surety and her current relationship with J.N. “should speak volumes”. I agree, but not in the way I understood Ms. Portolese to have intended. To the extent that Crown counsel was inviting me first to infer that C.N. must believe her husband to be guilty, and to then use her supposed belief to infer that he actually is guilty, I entirely reject this submission. C.N.’s subjective belief in her husband’s guilt or innocence would not be entitled to any evidential weight. In any event, she explained in her testimony that she had not refused to act as W.N.’s surety because she thought he was guilty, but because she did not know what had happened and did not want to appear to be taking his side against her granddaughter, with whom she has a closer relationship than she has with her husband.
[49] However, I do consider C.N.’s wish to avoid taking sides in the family conflict as a factor bearing on her credibility and reliability, insofar as it tends to rebut the possibility that she may have come to court with the goal of protecting W.N. To the contrary, C.N. impressed me as an honest witness who found herself in an extraordinarily difficult situation that she very much did not want to be in, but who was doing her best to be truthful. My strong impression was that if she had had any evidence to give that corroborated J.N.’s allegations against her husband she would not have withheld it.
[50] C.N.’s testimony is significant insofar as it contradicts J.N.’s evidence about the frequency of the alleged sexual touching incidents. On J.N.’s account she only rarely accompanied her grandmother out to the barn to do chores, and she explained that it was during these times that C.N. was out of the house that her grandfather would sexually molest her. Although J.N. acknowledged that she was not molested every time she visited her grandparents’ house during the years in question because her grandmother did not always have to go out to the barn, the main thrust of her evidence was that the visits when she was not molested were the exceptions.
[51] C.N.’s recollection is very different. On her evidence, J.N. usually did accompany her out to the barn to tend to the horses, although she acknowledged that J.N. sometimes got bored and would go back to the house before the chores were finished. In my view, C.N.’s evidence about this cannot be rejected as incredible or unreliable. J.N. was by all accounts both very close to her grandmother and fond of horses, and it makes sense that she would usually want to participate in the horses’ feeding and exercising, even if she would not necessarily want to stick around for the less pleasant task of mucking out their stalls. At the very least, C.N.’s testimony leaves me with a reasonable doubt about whether J.N.’s evidence about the frequency with which she was left alone in the house with her grandfather can be accepted as reliable. It is at least reasonably possible that J.N. may have overstated the extent to which her grandfather had the opportunity to sexually molest her in the manner she described.
[52] C.N. also contradicted J.N.’s evidence on a second point. While J.N. testified that she had a “vivid memory” of one occasion when her grandfather showed her pornographic footage on the TV in the basement den, C.N. testified that during the relevant time this TV was only connected to a terrestrial antenna and not to any other type of video player. While it is certainly possible that C.N. could be mistaken about this, it is also at least reasonably possible that J.N.’s “vivid memory” of seeing pornography played specifically on the basement TV is a figment of her imagination.
[53] As noted previously, the Crown is not required to prove that every incident of sexual touching alleged by J.N. actually occurred. Rather, the Crown must only establish that she was sexually touched by her grandfather and/or invited to sexually touch him at least once during the relevant time period. That said, the existence of a reasonable doubt as to the veracity or reliability of some specific aspect of a complainant’s account can sometimes give rise to a broader doubt about whether any part of his or her evidence can safely be relied on as proof of guilt on the criminal standard.
[54] In the case at bar, it is unnecessary for me to determine whether I would be left with a reasonable doubt about W.N.’s guilt by C.N.’s evidence on its own, since I must also consider W.N.’s own exculpatory testimony.
4. W.N.’s testimony
[55] As discussed previously, W.N. testified in his own defence and denied ever sexually touching his granddaughter or inviting her to sexually touch him. On his account, during J.N.’s visits to their home he generally went about his own business and left it to C.N. to supervise and entertain their granddaughter. However, he also described how she would sometimes come to his computer room to play with the piano, and how she would sometimes climb onto his lap to stick her fingers down his neck to make him gag, which she apparently found amusing.
[56] Viewed on its own, there is nothing in my view that is inherently incredible or implausible about W.N.’s account of himself as a largely disengaged grandparent who was absorbed in his own narrow range of hobbies, which he did not think would interest a young girl, and who himself took no real interest in her own activities even though he thought it would have been “nice” if they had had something to bond over. Indeed, W.N.’s self-portrayal is not materially contradicted by any of the other witnesses who testified. Even J.N. herself agreed that she had a much closer relationship with her grandmother, based in part on their shared interest in horses, and that W.N. took no interest in the horses or their upkeep. While Crown counsel argues that W.N. was deliberately downplaying the nature of his relationship with J.N., this argument presupposes that his account of their relationship is false. It does not provide any independent justification for disbelieving his account in the first place.
[57] Likewise, while the Crown emphasizes that even on W.N.’s own account there were times when C.N. was out of the house for various reasons, giving him ample opportunity to sexually molest J.N., this is not a basis for disbelieving his evidence that he did not sexually molest her during these moments of opportunity.
[58] In short, were it not for J.N.’s evidence that she was sexually molested by her grandfather, I would have no difficulty accepting W.N.’s testimony that he did not sexually molest her.
[59] Obviously, I cannot simultaneously believe both J.N.’s allegations and W.N.’s denials. One or the other of them must be false. However, it would be a fundamental error for me to approach their conflicting evidence by asking myself which one of them I find more believable. Rather, I must consider whether, even if I do not affirmatively believe W.N.’s denials, his evidence leaves me with a reasonable doubt as to his guilt.
[60] As noted above, I found J.N. to be an impressive witness, particularly when her evidence is viewed in isolation. However, it would be wrong for me to simply accept her allegations against W.N. uncritically and jump to the conclusion that his denials must accordingly be false. In appropriate circumstances it is open to a trier of fact to disbelieve the accused’s evidence because it conflicts with the complainant’s evidence. As Doherty J.A. explained in R. v. J.J.R.D., 2006 CanLII 40088 (Ont. C.A.), at para. 53:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[61] In the case at bar, as I have already discussed, even before taking W.N.’s denials into account I have identified some reservations about the reliability of certain specific aspects of J.N.’s evidence. I would certainly not go so far as to say that I disbelieve J.N.’s evidence that she was sexually molested by her grandfather on at least some occasions, nor can I go so far as to say that I affirmatively believe W.N.’s denials that this ever happened. However, when I consider all of the evidence, I cannot be sure that his denials are false. Notwithstanding my favourable impressions of J.N. as a witness, I am not satisfied that her evidence is so compelling that the evidence standing against her account, including W.N.’s testimony, can safely be dismissed as not raising a reasonable doubt.
[62] It bears repeating that the criminal standard of proof, by design, places a very high burden on the prosecution. I am not satisfied that the Crown has met its heavy onus in this case. I accordingly find W.N. not guilty on each of the three counts on the indictment.
Dawe J.
Released: September 12, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
W.N.
REASONS FOR DECISION
DAWE J.
Released: September 12, 2019
[1] J.N. testified that the incidents she alleges began when she was in grade one – that is, during the 2006-07 school year – and ended when she was in either grade four or grade five, or some time between 2009 and 2011.
[2] In the circumstances of this case, there is no serious dispute that if W.N. touched J.N.’s vagina as she alleges this touching was both objectively sexual – an essential element of the offence of sexual assault – and the inference that W.N. was acting for a sexual purpose – an essential element of the offence of sexual interference – would be overwhelming. Consent is not a live issue in this case given J.N.’s age at the time of the alleged incidents.