Her Majesty the Queen v. N.B., 2021 ONSC 2298 — Superior Court of Justice | minicounsel

DATE: 2021-03-01

Ms. J. A. McGill, for the Crown

and -

Mr. K. Matthews, for the Accused

Accused

HEARD: November 9, 10, 12, 13, 18, 19, 25, 27, December 16, 2020 and January 11, 13, 2021 at Thunder Bay, Ontario

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Madam Justice T. J. Nieckarz

1N.B. is the biological father of V.K.B., B.B. and C.B.

2V.K.B. and C.B. each allege that their father has engaged in inappropriate sexual conduct towards them. B.B. says he saw his father do something to V.K.B. All three children testified in this trial.

3N.B. is charged with the following offences, which are alleged to have been committed against each of his daughters, V.K.B. and C.B.:

a. two counts of sexual assault occurring between January 1, 2010 and December 31, 2016, contrary to s. 271 of the Criminal Code;

b. two counts of touching persons under the age of 16 years for a sexual purpose with his penis contrary to s. 151 of the Criminal Code; and

c. two counts of inviting persons under the age of 16 years to touch his penis for a sexual purpose contrary to s. 152 of the Criminal Code.

4N.B. adamantly denies the allegations. His defence is simple; none of the alleged acts happened.

5In addition to the three children, each of N.B., the children’s mother (S.H.), their maternal grandmother, and the investigating officer all testified. While I do not refer to all the evidence of each witness in this decision, I have reviewed it carefully and considered it.

6Credibility and reliability are at the heart of this case in determining whether the Crown has proven the offences beyond a reasonable doubt.

ALLEGATIONS AND SUMMARY OF EVIDENCE:

Crown Evidence:

S.H. – The Children’s Mother:

7S.H. was in a common-law relationship with N.B. for approximately 8 years. She is the biological mother to B.B. and C.B. She has been the only mother V.K.B. has known since she was approximately 3 - 4 years old. All three children currently live with S.H. and her partner.

8S.H. described her relationship with N.B. as “unstable” and “toxic”. The relationship was characterized by break-ups and infidelity on both spouses’ part.

9S.H. was a stay at home mother until the summer of 2014 when she returned to school. She described N.B. as the “provider” for the family. In cross-examination she would not acknowledge he was either a good father or active parent. She would not acknowledge that the children were happy when with N.B. but would acknowledge that they shared happy moments. She stated she felt that N.B. favoured the V.K.B. and C.B. (the female children) over B.B. (the male child).

10S.H. is the legal guardian of V.K.B. S.H. testified as to the process the couple undertook to gain care of V.K.B. after they had learned she had been in care for some time. S.H. described the parenting programs they were required to take. She testified that N.B. did not complete the programs, but she did. She described the gradual integration of V.K.B. to their home. She testified that V.K.B.’s biological mother (“A”) fought for custody, but ultimately through mediation agreed to supervised access with her mother as the supervisor (“P”). S.H. further testified as to some of the challenges that were experienced with “A”, including inconsistency in her contact with V.K.B. “P” told S.H. that when V.K.B. had phone conversations with “A” at her home she was often left crying and emotional. Ultimately S.H. decided that “A’s” relationship with V.K.B. was no longer healthy for the child, and she did not respond to “A’s” attempt to re-establish contact after “A” had moved away.

11Behavioural concerns with V.K.B. arose, starting when she was approximately three years old. To summarize:

a. V.K.B. and a male cousin were found at a family gathering playing in another room in a sexual manner. V.K.B. was approximately 3 years old and her cousin was approximately 5 years old. They had found cards belonging to S.H. that depicted various sex positions, stripped down to their underwear, and may have been simulating the acts while making moaning noises.

b. This became an ongoing problem with V.K.B. She was found engaging in the same behaviour with her brother. She also started doing other things such as pulling her pants down on the bus and showing her underwear. Other concerning behaviours included cutting her pets’ and people’s hair, stealing at school, biting her lip until it bled, and putting her cat in a suitcase. S.H. also described that at times, V.K.B. would “shut down” and not respond when she was being spoken to, particularly if upset.

c. Particularly concerning to S.H. was an incident in 2013 during which V.K.B. was found in her bedroom with her brother when she was approximately 6/7 years old and B.B. was approximately 4/5 years old. The children were found in their underwear and V.K.B. was on top of her brother making noises. The act was sexual. C.B. was in the room but playing on her own. S.H. asked why she was doing this, but V.K.B. “shut down”. S.H. asked her if someone touched her like that but she did not say anything. V.K.B. was supposed to go for a sleepover with her biological maternal grandmother that evening, but S.H. told the child that she would not be able to go and would have to tell her grandmother why. She hoped this consequence would cause the child to stop the behaviour. S.H. referred to this as the Grandma “P” incident.

d. The visit with Grandma “P” was rescheduled. When “P” came to pick V.K.B. up for her sleepover and V.K.B. had to tell her why she could not go, S.H. heard her say “my dad does it sometimes”. There was no elaboration as to what this meant.

e. S.H. immediately called N.B., who had been outside, into the house. She asked V.K.B. to repeat what she had just disclosed, but she said nothing and “shut down”. S.H. described V.K.B. as being scared. S.H. asked “P” to talk to V.K.B. during the sleepover and let her know if anything else was disclosed. S.H. described “P” as V.K.B.’s ‘safe place’; they were very close. “P” later told S.H. there was nothing further disclosed. Children’s Aid became involved when “P” alerted them as to the disclosure. The incident was investigated but nothing further came of it.

f. V.K.B. continued to show concerning behaviour such as showing her underwear to people and engaging in sexual games with other child family members. S.H. felt at the time that V.K.B.’s behaviours were due to all the trauma she had experienced of being in foster care and having her biological mother come in and out of her life. Her mother had moved to another city in 2012 and contact, other than phone had stopped. At no time did S.H. have any cause to suspect sexual abuse by N.B.

g. S.H. became involved with her new partner in 2016. In 2017 he moved into the family home. He has four children; two boys that they have contact with and who spend weekends at the home. Before the romantic relationship between S.H. and her partner began, and while they were just friends, there were some concerns with respect to the behaviour of V.K.B. and one of the boys, “S”. V.K.B. and “S” were found “cuddling”. S.H. had engaged some counselling through the Children’s Centre Thunder Bay in approximately 2013 to try to address some of V.K.B.’s behaviours. S.H. sought out strategies to deal with this issue and had discussions with V.K.B. and “S” surrounding boundaries.

h. Other than the one Grandma “P” incident, prior to 2016 S.H. had no cause for concern about inappropriate behaviour by N.B. towards any of the children.

12The Children’s Aid Society was involved with the family on another occasion. Two separate times, when the children were very young, V.K.B. and B.B. left the house alone. The first time only S.H. was home. The second time both parents were home. Both times the parents were sleeping. The first time the police brought the children back. The second time the police came to the home to tell the parents that the children had been found alone at a nearby grocery store. The children were placed in the care of their maternal grandparents until a safety plan was put into place.

13When the relationship between S.H. and N.B. ended in October 2014, they were able to work together to care for the children. S.H. had recently returned to school and was participating in various placements that went from either 4:30 – 9 p.m. or 4:30 – 11 p.m. N.B. came over to the former family home early evening two to three times a week to care for the children. She would often have her parents or sister stop by to make sure the children were being properly cared for. She testified that N.B. was not her “favorite babysitter”. She testified that she only “allowed” N.B. to care for the children outside of the home on a handful of occasions, but never overnight. These restrictions were due to parenting concerns as opposed to concerns of sexual impropriety. S.H. described this initial period post-separation as co-operative, with N.B. being reliable and communicating well. S.H. indicated that “sometimes” the children had a good time with their father during his parenting time, and that they did not complain.

14This changed in early December 2014. There was an incident following an outing in which an argument ensued. There was mutual pushing and shoving and N.B. forced his way into the home. S.H. called the police and N.B. was charged with break and enter and assault. The children witnessed the incident. The charges were resolved by way of peace bond that prevented N.B. from having contact with S.H. until August 2015. Between early December 2014 and August 2015 N.B. did not see the children. S.H. describes this period as being extremely difficult on the children; they were confused, very much missed their father, cried for him a lot, and she noticed other behavioural concerns such as increased anger in B.B. Once the peace bond was expired, she initiated contact with N.B. and took the children to meet him at a park. She described a joyful reunion with a lot of happy tears.

15S.H. and N.B. remained separated and continued to work together to parent the children. In late 2016, N.B.’s contact with the children started becoming more sporadic. S.H. continued to notice behavioural issues with B.B. and tried to discuss them with N.B., but he dismissed her concerns. She felt that B.B. was angry and had been very sad when his father left. N.B. was not providing financial support. He did not call for B.B.’s birthday in mid-December 2016. Then came to see the children for only a half-hour on December 26. S.H. was frustrated. She felt she was left with all responsibility for the children while N.B. was putting in no effort.

16A few days later, on New Year’s Eve 2016 the children went to S.H.’s parents’ home for a sleepover. S.H. received a phone call from her mother telling her that something “serious” had happened. Her mother told her that a disclosure of inappropriate sexual conduct had been made by V.K.B. against N.B. Later that night, S.H. spoke with V.K.B. about the disclosure. At the time she did not receive any disclosures from the other children. On January 2, 2017, S.H. reported the allegations to the Children’s Aid Society, who advised her to contact the police.

17S.H. and her sister took the children for their interviews with the Children’s Aid Society and the police. S.H. was instructed to prepare a written statement and gather as much information as possible, including any medical information. She testified that in the car on the way home from the interviews the children started talking and “everything came out”. She asked them questions, and more information came out.

18At some point S.H. sat down with V.K.B. and helped her to draw an adult sex toy she alleged had been used in an encounter with her father. At another point after the police interviews, B.B. made a disclosure to his mother about an incident allegedly involving V.K.B. and N.B in the shower. Another interview was scheduled with B.B. to speak with the police. The children also participated in group counselling with each other and their mother with respect to the sexual abuse allegations. S.H. testified that when the allegations came out, they started doing approximately six hours of a counselling a week. In February 2018, S.H. learned from speaking to the Crown that group sessions may not be appropriate. At that point counselling was only done individually. S.H. further testified that they have all discussed the allegations since.

19S.H. acknowledged that she has a collection of adult toys that she keeps in her bedroom in her home. She indicated that a few of them belonged to N.B., including a male masturbation tool, which he took when he left the home. The balance belongs to her. The toys are stored within reach of the children.

Maternal Grandmother – T.B.:

20T.B. and her husband (G.H.) have provided a lot of support to S.H., N.B. and the children. She testified that her daughter was very young when she began having children. At one point the family lived with them. Once S.H. had her own home, T.B., G.H. or their other daughter would stop by almost daily to help. Suffice it to say that T.B. was not complimentary of N.B. She described him as strict and neglectful when it came to the children. While she cared for him, she did not get along well with him. Despite this, T.B. acknowledged that prior to December 31, 2016 she had no reason to suspect that he had engaged in any inappropriate behaviour with the children.

21T.B. described becoming aware of concerning behaviours in V.K.B. from the age of 5. These behaviours included:

a. Touching her siblings in a sexual manner, taking her pants down at school, stealing at school, using vibrators and trying to use them on her siblings, and touching her cousins inappropriately.

b. There was an incident between V.K.B. and her male cousin. The male came to say that V.K.B. was touching him inappropriately. She recalls N.B. becoming very upset and accusing the male child of sexually abusing V.K.B.

c. T.B. has personally seen V.K.B. putting her fingers in her “vaginal area”. She had a discussion with her about masturbation.

d. V.K.B. would not talk when she got in trouble; she would shut down and not even try to defend herself.

e. She did try to talk to V.K.B. about the Grandma “P” incident in 2013 but V.K.B. did not disclose anything.

f. V.K.B.’s behaviours at times were “off the charts” dealing with the emotional roller coaster of her biological mother coming in and out of her life. V.K.B. would cry at the window for her mother.

22There were no behavioural or other concerns about C.B., other than the impact on C.B. of her sister touching her repeatedly.

23T.B. recalled that on December 31, 2016 the children were at her home when C.B. came to tell her that V.K.B. grabbed her hand and forced her to touch V.K.B.’s vagina. C.B. was upset this had happened again. T.B. was aware it had happened before. T.B. immediately told V.K.B. that what she was doing was not okay. She explained that V.K.B. should not be touching other people. She had a detailed conversation with V.K.B. about masturbation. V.K.B. was 9 years old and this issue had been ongoing since she was at least 5 years old. This was a conversation that T.B. had had with V.K.B. many times before. T.B. noticed that V.K.B. was ashamed and embarrassed. T.B. asked her if somebody was touching her. V.K.B. did not respond, and “shut down”. She explained to V.K.B. that she should tell if they were, because they may be hurting someone else. V.K.B. left the room.

24Shortly thereafter, V.K.B. returned and told T.B. that “it” happened to C.B. also. When T.B. asked who touched them, V.K.B. said it was her dad. T.B. asked her, “your dad touched your privates?” and V.K.B. said “yes”. In response to further questions from T.B., V.K.B. said she did not tell anyone before because she did not think anyone would believe her.

25T.B. does not recall if she had any further conversations with V.K.B. between December 31, 2016 and January 21, 2017. She does recall that on January 21, she had a conversation with V.K.B. in the kitchen during which V.K.B. was describing an incident with her father in the bathtub. B.B. overheard and came into the room and said he remembered everything. T.B. feels he had “blanked everything out” until then. T.B. had no discussions with C.B. about the allegations either on December 31 or prior to the police interviews.

Detective Constable Caccamo:

26D.C. Caccamo conducted the video-taped interviews of each of the children separately on January 19, 2017, in his capacity as child abuse coordinator. A representative of the Children’s Aid Society was also present. He also conducted a second interview with B.B. on April 5, 2017. There were no conversations other than greetings between himself and the children outside of what is recorded in the video statements.

27D.C. Caccamo testified it is his practice to tell parents of child complainants not to have any conversations with their children about what was discussed during the interview. He directs them to listen and offer comfort if the child wants to talk, but not to asks questions. He is fairly certain he gave this caution in this case.

28On January 24, 2017 D.C. Caccamo met with S.H. She provided him with written statements from both herself and T.B., along with drawings of adult toys purported to have been made by V.K.B. S.H. did not indicate that she had assisted in making the drawings.

29D.C. Caccamo further testified that in his experience interviewing children, they will not always provide all the information in the first interview. He indicated that sometimes they are either too embarrassed to give information, become more comfortable with disclosures over time, the incident is too traumatic to discuss, or they provide only enough information that they feel will allow the interview to be over.

Complainant V.K.B.:

30V.K.B. was 13 years old at the time of trial. She is bright and articulate. She endured a full day, and two partial days of giving evidence, much of which was cross-examination. Unfortunately, technical issues experienced by the Court due to being in a temporary location contributed to making the days longer for V.K.B. than they otherwise should have been. For the most part she testified with confidence, but her discomfort and distress during difficult portions of cross-examination when pushed on difficult areas of her evidence was worrisome from the perspective of her emotional well-being. Ultimately, after recommencing for approximately an hour on the second day of cross-examination, V.K.B.’s distress was too great for her to continue. She bravely returned to resume a difficult third day.

31V.K.B. testified at the trial pursuant to the provisions of s. 715.1 of the Criminal Code. She was interviewed by D.C. Caccamo when she was 9 years old. In the course of her adopted video statement given to the police she stated that:

a. She has lied in her life a lot because she was scared of getting into trouble, but she was not going to lie during the interview.

b. Her dad moved out after getting into a fight with her mom. He went to jail for 3 days. She first saw him again at a park and he was crying; he was happy. The visits she had with him were “super good”.

c. Her dad did “weird” / “bad stuff” to her a lot. Initially she did not want to talk about it.

d. Nothing has happened since the Grandma “P” disclosure in 2013. V.K.B. would have been 6 years old at that time.

e. The “bad stuff” happened when mom was at work, out for groceries or with friends. Only her, her dad and her siblings were home. V.K.B. gave the impression that the “bad” things happened frequently.

f. She said that her dad would take her to her mom’s room. It was just her and her dad alone. He took off her clothes and his. He brought her to do “what adults do”. When asked by the officer if her dad touched her with his hand, she nodded “yes”. When asked if he touched her with an object or something on him, she indicated that it was both. She described a sex toy with a big mouth that he would have her touch to his penis. She said he put his penis in her mouth. She stated that white stuff came out. She said it would stop when he would hear someone at the door.

g. In response to further questions, V.K.B. said that he put his penis in her vagina and her bum, and he would “hump” on her. She said it hurt.

h. She said it happened after school, after her homework was finished. She was very confused with respect to times, saying it lasted four hours and thirty minutes.

i. She described a further incident which is alleged to have happened the night before the Grandma “P” sleepover was supposed to happen. She said that it was a Friday and her mom was out. She was in bed and woke up to her father standing in her room. She gestured that he was rubbing his penis. She did not say whether he was nude or clothed or what else happened. This was right after she had turned 7 years old.

j. She told her mom the next day but then got scared her dad would get mad, so when he said it didn’t happen, she told a different story. She said she started then making up stories that didn’t happen. It was hard to know whether this is in reference to covering up the alleged sexual abuse or something else.

k. The abuse by her father stopped after this point.

l. She started doing “weird stuff” when her dad did this to her. It stopped for a while but when “S” came over, it started again.

m. “S” [who she described as her cousin, but who is her mother’s partner’s son] has the same problem. He is 8 years old. She described the problem as what two adults do. She alleged that it always happens when “S” comes over; he does not force her, it just starts. She said that “S” starts it. It happens upstairs in the home, while the adults are downstairs. She said that “S” does the things to her that her dad did. She became visibly upset, rubbing her eyes. She said that it was still happening with “S” and that she does not want him to come over anymore. “S” is supposed to come over next week, so she is going to go to her grandma’s house. She wants it to stop with “S”.

n. When asked how things started with “S”, V.K.B. responded that “S” had the problem first and then my dad started doing it to me and I got the problem.

32In examination-in-chief and cross-examination, V.K.B. testified that:

a. Her father touched her vagina and “butt” with his hands and his penis.

b. She believes she was 6 or 7 when it began.

c. It usually happened after school and into the evening.

d. He took her clothes off and his.

e. He told her to suck on his penis. Stuff came out of his penis. She believes this happened in the basement and on one occasion. She cannot remember the incident well.

f. The next time she recalls was in her mother’s room. He asked her to rub his penis with her hand. He threatened that if she did not do it, he would “put it in the place where it hurts the most”. She does not remember anything else about this incident. She did not tell the police officer about this because she did not remember it at the time.

g. She recalls a third time when she was sleeping, had her door open and woke to see her father touching his penis. Nothing else happened that night. He did not touch her. This was the only time she recalls this happening.

h. She recalls another time after her parents had their fight, were separated and he was “babysitting”. At first V.K.B. testified that her father called all the children to her mother’s room and told them to use a toy on his penis. The children were all clothed. Her father had his pants down exposing his penis and was holding the toy. They said “no”. She does not remember anything more. This is the only incident she recalls involving all three children.

i. Later in cross-examination, V.K.B. testified that she could not recall if her father asked them to do anything with the toy and his penis.

j. She does not recall any time that her father used his penis inside of her. She does not recall any occasions other than those mentioned. She does not remember seeing her father do anything to C.B.

k. The only time she can remember her father touching her was the night before the Grandma “P” sleepover.

l. When Grandma “P” was coming to pick her up for a sleepover her mom was asking why she was “doing stuff” and she said:

“…because my dad is doing it to me and then I, and that I can remember it was, I was kidding, it didn’t happen and then my dad came in my mom told me to say sorry so I said sorry and hugged him.”

She did not recall getting in trouble from her mother for inappropriate behaviour with her brother.

m. When she was at T.B.’s house she learned that her dad was touching her sister. She went to the washroom and her sister was taking a bath and told her that dad was touching her. V.K.B. told C.B. it was happening to her too. V.K.B. went to tell her grandmother what was happening. It was going to be a new year and she felt ready to start moving past her dad, who was not in the picture very much by this time. Before she could tell her grandmother, T.B. started asking her why she was doing things. She did not recall that she had made C.B. touch her and that is how the conversation arose. She told her grandmother she was doing the things because her dad was doing it to her. Her grandmother said she knew something was “off with him”. She has a hard time remembering any other details of that night.

n. She did accidentally find her parents’ “toys” once. She did not remember when. She did remember her mom showing her the toys when she was trying to make her drawing of the one her dad wanted her to use, but it was not with the ones her mom showed.

o. V.K.B. was confused as to when or why the inappropriate sexual behaviour with her father stopped. At times she stated that it stopped after the Grandma “P” incident, then she said it “sort of stopped, but would happen sometimes”, then she said it stopped when her father moved out. She testified that nothing happened after he moved out in 2014.

p. V.K.B. recalled that prior to her parent’s fight that she witnessed in 2014, things were “generally pretty good”. She recalled activities with her father. She especially enjoyed camping. She recalls being upset when he left in 2014. She blamed him for not being with them at the time, and still blames him. She knows that he has not paid child support and would not pay for their activities; her mother told her. They were all feeling sad a lot and would “use anger” after their dad moved out.

q. She remembers very clearly the reunion with her father in 2015; they were all crying, including him. They were happy tears. She missed her dad. She enjoyed visits with him, but it became harder, and she became a little more upset as the visits became less frequent.

r. She remembers being sad also in 2016 when her dad stopped coming to see them as much. She was hurt by the fact that he was not coming around and she was upset with him. She acknowledged that made the disclosure about the touching because she was upset with him. She denied that the allegations were false but did acknowledge that some of it may not have been accurate simply because it was hard to remember or talk about.

s. In her evidence, V.K.B. refers to N.B. by his first name.

t. V.K.B. described having two “vaults” in her brain where she puts everything bad that she does not want to see again; one dealing with her dad and one with different sad things. The vault with her dad she can open and close, while the other vault remains closed.

u. She could not recall anything with respect to worries or concerns pertaining to “S”, who is now her stepbrother. “S” lived next door with his dad before his dad moved in with her mom. She believes she put anything to with “S” in the closed vault.

v. She did not tell anyone sooner what was happening because she did not think anyone would believe her. Her father also threatened her.

Complaint C.B.:

33C.B. also adopted a video statement given to police on January 19, 2017. She was 6 ½ years old when she gave her statement. At the time of trial, she was 10 years old. C.B. became extremely distressed and unable to continue that same day while watching her video statement. Like her sister, she bravely returned and despite her obvious distress during her cross-examination, she asked for frequent breaks and completed her evidence.

34In her video statement, C.B. told D.C. Caccamo the following:

a. She shares a bedroom with V.K.B. Sometimes at night they talked about their dad and the things he did to make them laugh; the fun things. She also recalled fun, happy times with her dad at her dad’s grandmother’s home. She said she was never sad there and felt safe.

b. When she was sleeping, her dad told V.K.B. and B.B. he was taking C.B. upstairs. He took her to her mom’s bedroom. She did not wake up until he was “doing it”. C.B. had a hard time describing what “doing it” meant. She said she could not describe it but V.K.B. could. By pointing to her dog and a series of questions from D.C .Caccamo, she confirmed that he put his penis on her bum and moved it. She also said he put it inside. She was uncomfortable but it did not hurt. He did not put it anywhere else. She said definitely it happened only once. When asked if dad was drinking alcohol, she said she did not know, but V.K.B. said he did. She said she did not trust V.K.B. because she kissed a boy, always gets into trouble, and “does lies”.

c. She thinks she was 4 years old when it happened. C.B. clearly struggled with time, at first thinking it happened 10 days ago even though she initially said she had not seen her dad for 14 days.

35In her oral evidence through examination-in-chief and cross-examination, C.B. testified that:

a. V.K.B. was awake, but C.B. was asleep when the incident happened. She does not know how she knows that her dad told V.K.B. and B.B. he was taking her upstairs. She woke up during the incident. Her “butt” was being touched by his penis and he was moving back and forth. She was on her stomach. Her dad lay beside her. It did not hurt, but she was uncomfortable and wanted it to stop. When it was finished, she went back to her bedroom. V.K.B. was awake. She believes she was 4 years old. This happened only once. V.K.B. told her that dad was drinking alcohol the day he did this to C.B.

b. She never saw anything between V.K.B. and her dad.

c. She calls her dad by his first name now. She liked her dad living with them before the incident. She does not remember specifics but remembers they would do things together. There were good times and bad times when her mom and dad fought. She missed him when he moved out. She remembers him “babysitting” them after he moved out and those were good, fun times. She does not remember any bad times after he moved out. She remembers being excited for his visits, especially at Christmas.

d. Despite saying that the incident with dad happened only once, subsequently C.B. testified that there were at least three incidents involving dad that she now remembers. There could be more times, but she does not remember. These happened while he was living at the house. She does not remember how old she was, but she was 4 years old when he moved out. All the bad things that happened with dad involved only the two of them and not the other children.

e. The exact same thing happened all three times. They happened in the basement and twice in her mom’s room. She did not remember them when she spoke with the officer.

f. She does not remember when the basement incident happened. She does not remember if she was awake or asleep when this started. She remembers lights were on. She remembers being scared but not hurt. She did not have clothes on.

g. On the third occasion he made her lay on the side of her mom’s bed with her head off. He was on the other side of the bed. He touched her with his private parts. He put it in her mouth. She thinks she was 3 or 4 years old.

h. She remembers seeing her dad with an adult toy during one of the three incidents. Now she remembers it was the first incident. He used it on her private part. She found mom and dad’s adult toys before accidentally.

i. She remembers being at T.B.’s home and being in the bathtub crying. She does not remember V.K.B. touching her. At first, she did not recall talking to her sister about what happened with dad. She remembers being in the bathtub crying but does not know why. She is pretty sure that she started to remember what happened while she was in the bathtub. She remembers her sister asking her what was wrong, and she told her what happened with dad.

j. She had a “humongous conversation” with mom about what happened before she spoke with the police. She did not recall if there were other conversations with mom before speaking with the police. Mom and grandma have said there is something wrong with dad’s brain. After speaking with the police, she recalls the group and individual counselling.

k. Initially she testified that her mom told her that she was out shopping when the first incident happened. Shortly thereafter she did not remember if her mom had told her she was shopping.

l. Sometimes at night when she is in bed, she remembers things. She also indicated she remembered things during the court breaks that are coming back to her on the day of her evidence that she has not remembered earlier. She has also had some dreams that have helped her remember things.

m. Despite initially saying she did not see anything between her dad and V.K.B., later in her evidence, C.B. said she remembered being in the shower and her sister being upset and going into the corner and N.B. going too. She only remembers one shower with her sister. She did not see anything but assumes that N.B. hurt her because she would not cry for no reason. B.B. may have been there but she is not sure.

n. She trusts V.K.B. now. V.K.B. still lies, but not as much.

o. She was not scared any time her dad would come to visit.

B.B:

36B.B. began his evidence as a very happy child, smiling frequently. He was 12 years old at the time of trial, and 8 years old at the time he gave his two video statements on January 19, 2017 and April 5, 2017.

37The Crown sought to have only the April 5, 2017 statement entered pursuant to s. 715.1 of the Criminal Code. The defence objected on the basis that B.B. did not adopt the contents of his video statement, and that the January 19, 2017 statement needed to also be in evidence to give appropriate context to the second. For reasons delivered orally at trial, both statements were entered; the January 19 statement was adopted by the witness and entered pursuant to s. 715.1 of the Criminal Code, while the second statement was admitted into evidence under the Khan exception.

38In the January 19th statement, B.B. told D.C. Caccamo that:

a. He missed his dad. His dad was not living with them because mom and dad had a fight and then dad went to jail.

b. He enjoyed playing with dad and when dad helped him fall asleep by laying down with him. Nothing happened, dad just lay down with him so he wasn’t lonely and could fall asleep faster.

c. He does not remember any bad things happening with dad.

d. Him and his sisters talk about missing dad and that they want to visit him.

39In the April 5 statement, B.B. told D.C. Caccamo that:

a. When he was four, his dad forced him to come into the washroom and go into the shower with him, V.K.B. and C.B.

b. His dad took off the girls’ clothes, lifted V.K.B. up and then put his “personal spot” into V.K.B.’s bum and was moving. Dad called it “cleaning”.

c. Dad and V.K.B. were facing away from him in the shower.

d. V.K.B. was crying and he is pretty sure she was saying “help me”.

e. It did not happen to C.B. or him. C.B. told him what happened to her in the basement with dad.

f. It happened the same way 15 times.

g. After it happened, dad put them to bed and told them to forget about it (although earlier in the statement B.B. suggested it happened in the daytime).

h. V.K.B. bugged him to do to what dad did to her. He put his “personal spot” on her bum once. She bugged him to do it again, but he did not want to get grounded.

i. V.K.B. would get C.B. doing things too, but then they would get grounded.

j. V.K.B. showed him a toy once that had a spot for the “personal spot”. It was long. V.K.B. tried to make him use it but he said no. Never saw dad with this toy.

k. Mom told him dad is sick how he thinks.

l. Nothing else happened.

m. When asked by D.C. Caccamo whether anyone had spoken to him about his sisters and his dad, B.B. responded “everyone”.

40In his oral evidence given at trial, B.B. testified that:

a. He “thinks” he spoke with his grandma about the bad stuff that dad did to the girls.

b. When asked what N.B. did to V.K.B. in the shower, B.B. stated that he pushed her up against the wall and “like, hump I guess”. He put his “pee pee up V’s butt”.

c. B.B. said he was in the shower behind them. He said it happened a lot; about 10 or 15 times, maybe more or less. It happened before dad moved out and not after. He was guessing when he told the officer he was 4 years old. He cannot remember when it happened. He does not remember if something happened each time they were in the shower. He remembers V.K.B. crying. He and C.B. were behind dad and V.K.B. in the shower. He couldn’t see, except for once, but he saw his dad moving into V.K.B. and she was crying.

d. If he or C.B. tried to get out of the shower his dad would tell them to stay or he would hurt them, but B.B. did not think his dad would hurt them.

e. He used to have a good time when dad lived with them. After dad moved out, he missed him a lot. It made him sad when dad was not visiting as much. Most of his memories of dad are good ones. He loves his dad. As with his sisters, he now refers to his dad by his first name.

f. When asked in cross-examination whether someone told him to say these things, B.B. became very upset and required a break.

g. V.K.B. made him play the “game” less than 10 times. It was bad. He would get grounded. Only once B.B. put “it” in V.K.B.’s bum.

h. When V.K.B. showed him the toy, it was before dad moved out. They played with it in his sisters’ room. He cannot remember what they did with it. He was guessing in the police video that you put your penis in the toy. This is the only time he had seen it.

i. Maybe he did not tell anyone about the shower until 2017 because he was scared; he is not sure why. He did not say anything in the first interview with the officer because he was not comfortable and did not want his dad to get hurt or in trouble.

Defence Evidence – The Accused:

41N.B. testified as to his difficult upbringing and challenges he experienced with substance abuse prior to his relationship with S.H. He described the trauma associated with the sudden loss of his beloved Aunt V. who helped raise him; the Aunt that V.K.B. was named after.

42N.B. described how dysfunctional his life had become as a young man, including his relationship with V.K.B.’s biological mother. While he acknowledges there having been challenges in their relationship, he credits S.H. and the birth of each of his children as being the catalysts that put him on the path to a better life. He also credits S.H. with getting V.K.B. back into his life after she had spent time in foster care. He testified that his children “changed his life”.

43N.B. testified that V.K.B. had always been an outgoing and affectionate child, but when she first began living with them, she had some difficulty adjusting and feeling secure. He associated this with having been “bounced around” a lot prior to living with them.

44N.B. described family life with S.H. and the children prior to his separation from S.H. in December 2014. He very much enjoyed being a parent, but they had a very busy household with three young children. He said he was an active parent. He worked full-time. From 2012 to 2016 he worked out of town during the week at a seasonal job. When he came home, he would cook, clean, do homework with the children, watch movies, read books with them, put them to bed, and participated in all aspects of their daily life. He recalled fondly doing family activities together. It was rare to do something one-on-one with a child; they usually did things together. He testified they very much enjoyed camping, tobogganing, going to ski-doo rides,

45As with S.H., much of N.B.’s evidence related to his relationship with S.H. At times, N.B. was extremely complimentary of S.H. At other times, he was quite critical. He vacillated between describing her as a great mother and portraying her as someone who liked to sleep a lot, “wouldn’t get off her ass” and was controlling of his time with the children post-separation. He alleges she threatened that if he ever broke up with her, he would never see the children.

46He described the last time he saw the children as being December 26, 2016. He went to S.H.’s home immediately after work that evening to give the children their Christmas gifts and spend some time with them. He described the children as being happy and cheerful but S.H. being upset with him for not staying for as long as she had hoped he would.

47N.B. first learned of the allegations when he was called by D.C. Caccamo to come to the police station, where he was arrested. He emphatically denies the allegations as being false. He has never touched any of his children sexually, never had them touch him, never touched himself in their presence and never exposed himself to them. He denies ever having physically harmed his children. He described himself as a proud father who wanted to give his children the life he did not have.

48N.B.’s evidence is that he did not recall ever having showered with all of the children. The configuration of the bathtub/shower combination in the bathroom of the family home would not allow for this. As they became older and preferred showers, they did this alone, except for C.B. who still took baths. He did recall occasionally showering with B.B., but not the girls.

49N.B. recalls a number of behavioural challenges with V.K.B. when she was younger. His recollection is:

a. They stopped bathing B.B. with the girls once V.K.B. started playing sexualized games.

b. He never witnessed the games himself. He knew from S.H. that V.K.B. was caught engaging in this behaviour with her male cousin. S.H. told him that the children “humped” each other. This happened a number of times.

c. V.K.B. also liked to masturbate herself when she was approximately 4 years old. S.H., N.B. and T.B. all had conversations with her about this.

d. S.H. and N.B. addressed the issue by monitoring carefully V.K.B.’s interactions with her brother and male cousin.

e. V.K.B. displayed attention seeking behaviours. She would lie and occasionally lash out. Her behaviours increased after N.B. and S.H. separated. N.B. blamed himself for leaving and feels this affected V.K.B. the most given her background and attachment issues.

f. N.B. was unaware of some of the behaviours that S.H. testified to, such as the sexualized behaviour with other children at school and the incidents involving the cat and the suitcase. S.H. never made him aware of these issues.

50He recalled the Grandma “P” incident. His recollection was that he came in the house after having been outside. S.H. and V.K.B. were both in the kitchen. S.H. asked him why V.K.B. was saying he touched her inappropriately. He was in shock. There was no explanation of where or how; N.B. did not say if he asked. They told V.K.B. this was very serious, and it was wrong to lie. That was the end of the conversation.

51He also recalls an Aunt at some point wondering if V.K.B. had been sexually abused prior to coming to live with them. He did not say how the conversation arose. He remembers S.H. saying she would take V.K.B. to a doctor to be examined. He believes she did, and they found nothing, but he could not say for certain if she had been to the doctor.

52He has not seen his children in more than four years. He testified that this has been extremely difficult for him; it is painful to even hear their names now. He testified that the lack of contact has kept him awake many nights and he often, cries. He does not know whether he is coming or going because of the loss he feels. He was visibly emotional and upset when speaking of the change in his relationship with his children. He has no other children.

53He further described the impact of the charges on his life. In addition to the stress and strain one would expect when subject to charges of this nature, the Accused has had difficulty maintaining a job. He has lost jobs when his employers have learned of these charges. He believes that S.H.’s father has alerted previous employers. He has been attacked by individuals who believe the allegations against him. He is currently working for his mother as a bartender. His life has been significantly impacted.

THE LAW:

The Presumption of Innocence and Proof Beyond a Reasonable Doubt

54The Accused is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty. To secure a conviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of "proof beyond reasonable doubt". This standard of proof is very stringent.

55While the standard of proof is stringent, the court must remember that “proof beyond a reasonable doubt” does not require the Crown to prove the offence to an absolute certainty – this would be an impossibly high burden for the Crown to meet.

56In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada outlined the definitive guide for criminal trial courts in Canada with respect to reasonable doubt. At paragraph 39 of Lifchus, the court directed that even if I believe the Accused is probably or likely guilty this is insufficient to establish guilt beyond a reasonable doubt and the Accused must be acquitted. At the risk of oversimplifying the principles in Lifchus, I cannot convict the Accused unless, based on the evidence before the court, I am sure that he committed the offence.

57In R. v. Amodio, 2020 ONSC 8077, at paras. 56 - 57, Dunphy J. highlighted these concepts and the challenge faced by judges in cases involving allegations of sexual conduct against children:

56Judges are neither omniscient nor magicians. The criminal standard of proof is set as high as it is set in our society for a very particular reason. It reflects a social choice to tolerate some crime going unpunished before allowing innocent people to be wrongly convicted. Even still, as with any system administered by fallible humans, our system is not perfect…

57Sexual assault in general and sexual assault of minors in particular raises these issues in the most terrible way. The nature of these crimes is that there is very often no forensic evidence of any kind and there are no witnesses save the accused and his or her victim. These are also the type of crimes where society’s interest in protecting some of its most vulnerable members is at its highest and most acute.

Reasonable Doubt and Sexual Assault Cases:

58This is one of those cases in which there is no forensic evidence. The primary witnesses are the complainants and the Accused. B.B. alleges he is a witness to one series of acts, but otherwise this case comes down to the evidence of the complainants and the Accused. It would be easy to turn this into a credibility contest in which I simply determine whether, or not I prefer the evidence of the complainants more so than the accused. That, however, would not be the proper legal approach.

59As Regional Senior Justice Warkentin pointed out in R. v. A.K., 2019 ONSC 5160, at paragraph 56, it is not appropriate to determine a verdict by saying “who do I believe?”. Such an approach erodes the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: R. v. A.K., at para. 55.

60To assist in the application of the burden of proof in cases such as this, when there are competing versions of what happened, the Supreme Court of Canada provided the analysis to be followed in R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. The analysis described at paragraph 28 of W.(D.) states:

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

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

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

61Because the Accused testified, the principles set out in R. v. W. (D.) apply. This means I must acquit the Accused if I believe his evidence. Even if I do not believe his evidence, but I am left in a reasonable doubt by it, I must acquit him. If I am not left in any doubt by his evidence, then I must ask myself whether, based on the evidence I do accept, I am convinced beyond a reasonable doubt of his guilt.

62In considering the evidence I may believe all, some or none of each witness’ evidence. Just because I disbelieve some of a witnesses’ evidence does not mean I must disbelieve it all.

63Particularly with respect to steps 2 and 3 of the W.D. framework, I must consider the evidence of the Accused in the context of all the evidence in the case, including the evidence of each of the two complainants and the other witnesses who testified. If, after considering all the evidence I am left unsure as to who I am to believe, then the presumption of innocence and burden of proof on the Crown requires me to acquit: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152, at para. 11.

Credibility and Reliability:

64Credibility and reliability are different concepts. Credibility refers to the truthfulness of a witness. Reliability involves the accuracy of the witness’s testimony which requires an assessment by the trier of fact of that witness’s ability to accurately observe, recall and recount: R. v. H.C., 2009 ONCA 56; R. v. L.D., 2021 ONSC 385, at para. 19.

65The Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, at para. 20 has recognized that the assessment of credibility is a challenging task:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

66With respect to children in particular, the Supreme Court of Canada has stated that it may be wrong to apply adult tests for credibility to the evidence of children: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 133.

67In R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, in reference to the appeal judge's treatment of the child witness' evidence, Wilson J. stated in part:

“. . . it seems to me that he was simply suggesting that the judiciary should take a common-sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.”

68Child witnesses may not be able to recall events in the same details as adults. Flaws and inconsistencies in a child's evidence are not necessarily treated in the same manner as would be the case with the evidence of an adult. As explained by Juriansz, J.A. in R. v. J.J.B. [2013] ONCA 268 at para. 70:

70Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 54, although a child’s testimony must not be subject to a lower standard of proof than an adult’s:

[A] flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

69I am further directed by McLachlin J. stated, as she then was, at para. 23 in R. v. W(R) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 to disabuse myself of any notion that a child’s evidence is inherently less reliable than that of an adult. A court is not to discount a child’s evidence automatically, without regard to the circumstances of a case.

70Overall, while it is important to appreciate that young witnesses may not be able to recall aspects of the case in the same detail as an adult might, I must remember that the child's evidence is still subject to the same standard of proof as the evidence of an adult in a criminal proceeding. The Crown’s burden of proof beyond a reasonable doubt is not lowered. Protecting the liberty of the Accused and guarding against the injustice of the conviction of an innocent person still requires a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.

ANALYSIS:

71As the case law principles referred to above confirm, I must approach my analysis of the evidence with the presumption that the Accused is innocent, and the Crown must establish his guilt beyond a reasonable doubt.

Do I Believe the Evidence of the Accused?

72As directed by R. v. W.(D.), I begin my assessment with my comments regarding the evidence of the accused. The task is not an easy one. While the accused does not have a burden of proof to discharge, the facts that his evidence are intended to support are essentially negative facts: that none of the incidents occurred.

73The Defence argues that the evidence of the Accused should be accepted in its entirety; it was honest, forthright and balanced and there is no reason to reject N.B.’s evidence or his denials.

74The Crown says that N.B. should not be believed, and that his evidence lacked candour.

75I do not believe the evidence of the Accused in its entirety and agree with the Crown that there are some difficulties with his evidence that gave me some cause to question whether he was being completely honest and forthright. The Crown correctly identified areas of concern with respect to the evidence of the Accused that suggested an attempt to minimize his role and responsibility for certain events and revise the narrative with respect to others. Particular concerns that I had with respect to N.B.’s evidence include:

a. While early in his evidence he praised S.H. and her efforts as a parent, as his evidence evolved, N.B. went on repeatedly about how he had to do everything at home even though he worked long days at the mine. At times the characterization of S.H. was offensive and lacked any insight into the fact that while he was away at work, S.H. had the sole responsibility for the care of three young children, close in age, and the household.

b. While he acknowledged that he had caused his children pain by not being as involved at times as he should have been, for the most part he did not seem willing to accept responsibility for the lack of meaningful involvement in their lives both early in V.K.B.’s life, from December 2014 to August 2015, and immediately prior to the disclosures being made in December 2016. Instead, he blamed V.K.B.’s mother for the fact that he was not involved in her early years and did not even know she had been in care for over a year. He took little responsibility for not completing the required courses to gain custody of V.K.B., leaving S.H. to do so. He also blamed S.H., alleging she was trying to find every way imaginable to make sure he did not see the children – the suggestion being that these allegations are a by-product of that.

The evidence simply does not support that conclusion. While there were some indications in the evidence that S.H. was controlling with respect to N.B.’s time with the children post-separation and did not value his role as a father to the extent she should have, ultimately the evidence supports her efforts to keep him involved in their lives. The undisputed evidence was that it was S.H. who initiated contact upon the expiry of the peace bond out of concern that the children were missing their father. I accept S.H.’s evidence as to the efforts she made in 2016 to try to keep N.B. involved with the children and up-to-date as to developments in school, behaviour and otherwise, but that she simply became frustrated by his lack of effort.

c. He denied any wrongdoing for the incident that resulted in the peace bond in December 2014 and claimed that he was the injured party. Based on the evidence I heard, both parties were at fault for this altercation that has clearly affected and remained with the children.

d. Most concerning was N.B.’s evidence with respect to the Grandma “P” incident. N.B. and S.H. both testified that V.K.B. made allegations of inappropriate sexual behaviour by him in 2013. What is troubling, is N.B.’s evidence that the allegation was made, but once V.K.B. immediately recanted, the issue was not pursued any further with her or otherwise. One would think that with the most serious allegations having been made by a child against their parent, even though subsequently recanted, there would have been further discussions with the child or more to the conversation than there was. Similarly, N.B. did not even seem to know if S.H. had in fact taken V.K.B. to the doctor when a concern was raised as to whether V.K.B. may have suffered some sexual trauma in her earlier years before coming to live with them.

76Having said this, I recognize that N.B. was not the only witness guilty of pointing blame at others and minimizing his responsibility for certain actions. This trial at times had more of a flavour of a family law custody trial with considerable evidence on relationship issues between S.H. and N.B. and their respective parenting skills or lack thereof. All the adults who testified suffered from their recollection of, or reaction to events, being clouded by the issues surrounding the relationship issues between N.B. and S.H., and the understandable range of emotions that come from allegations of sexual impropriety against children, and proceedings of this nature. For example, T.B. testified that having since become aware of these allegations she wonders if the real reason that the children had wandered from the home on a couple of occasions was to escape the abuse of their father. This perspective fails to recognize that on one, and possibly two of the occasions that this happened, N.B. was out of town working and not even home. The children were in the care of T.B.’s daughter at the time. The other time, S.H. was also in the home, and sleeping. It is also not lost on me that while S.H. and N.B. were still a couple in 2013 and V.K.B. made allegations, S.H.’s immediate instinct was to call him inside and address it with him, while her response to the 2016 allegations during a period of conflict in the relationship between S.H. and N.B. was markedly different. This is not a criticism, nor do I believe in the slightest that S.H. encouraged the children to make false allegation; this is merely an observation as to how recollections and perspectives may have been impacted by conflict and subsequent events.

77Despite all of this, there were aspects to N.B.’s testimony that were compelling and sincere and have led me to conclude that his evidence should not be entirely rejected. N.B. spoke with sincerity with respect to his hopes for his children. He was proud to be a provider for his family and appeared genuine in expressing his joy at having a family life with his children that he himself did not get to experience growing up. His love for his children was clear upon seeing and hearing him testify as to the times he shared with them. It was evident that these are truly happy memories for him. Conversely, his pain was palpable in describing the loss of relationship with his children. His denials were made without hesitation but were not exaggerated.

Steps 2 and 3 – Am I Left In Doubt?

78Despite the concerns I have with respect to the credibility of the Accused, when I consider his evidence overall, and some of the frailties associated with evidence of the complainants and B.B., in the context of all of the evidence of this case I cannot completely discount his denial of the allegations and I am left with reasonable doubt.

79Overall, there were internal and external inconsistencies in the evidence of the children that are not, in my view, minor or non-material. They are, indeed, significant in that they are in relation to the alleged events. There are also a number of circumstances that impact on the reliability of the children’s recollections in that they made it difficult to know what portions of their evidence came from their lived experiences with their father, and what came from conversations with others or experiences with others. As outlined above, if I am uncertain as to what happened, then the Crown has not met the burden of proof beyond a reasonable doubt.

80Firstly, in analyzing the evidence I am mindful of the principles I have outlined above with respect to assessing the evidence of child witnesses. These children were very young at the time that the events were alleged to have occurred, when they provided their video statements to police and at the time of trial. The alleged events took place more than 6 years before this trial occurred. The initial allegations arose 4 years prior to trial. C.B. would have been 4 years old or younger when the events are alleged to have happened, and V.K.B. no older than 7 years old. It only stands to reason that this passage of time, combined with the young age of the children will have affected the memories of the witnesses to a certain extent.

81Given the passage of time and the young ages of the children, I was not concerned by any inconsistencies with respect to timing of the alleged events, sequence, location in terms of which room in the home, or frequency. This did not impact my assessment of their evidence.

82I also was not concerned by the number of breaks the children required. At the outset of each child’s evidence they were directed by me and reminded from time to time that if they needed a break, they were to ask. They each did that. I do not accept the suggestion that their tendency to become upset at difficult points in the cross-examination should lead to the conclusion that they were upset at being caught in a lie. Each of the three children were subjected to lengthy, albeit respectful, cross-examinations. They were challenged on each and every aspect of every allegation. They were articulate and brave, but they are children and they were discussing upsetting and traumatic events that they believe to be true. Their frustration and upset at suggestions they were not telling the truth, when internal inconsistencies were pointed out to them, or when they could not remember what was being asked of them is understandable given their ages. Each of these children conducted themselves exceptionally well.

83Despite the concerns I am about to point out with respect to their evidence, I wish to make it clear I believe that the children testified honestly and to the best of their ability. Whether or not these events happened, I believe that these children believe they did. Whatever it was that brought about these allegations in 2016, the children have lived with them for the past 4 years and they have become their reality.

84With respect to V.K.B. and C.B., it is not one particular inconsistency or fact that, in of itself, lends cause for concern, but rather a constellation of factors.

85With respect to V.K.B. specifically:

a. The evidence is clear that she was displaying concerning behaviour from an early age – not only the sexualized behaviour, but her parents were concerned about her lying and stealing from school. It was difficult to ascertain with any certainty from the evidence whether the timing of this behaviour coincided with the timing of the alleged events; the evidence suggests that the sexualized behaviours, particularly with her cousin, pre-date the alleged events. V.K.B.’s father expressed a concern about attachment issues or sexual abuse suffered prior to N.B. and S.H. assuming full-time care of her, although there was no formal evidence led to this effect. Her issues were significant enough that her mother later sought counselling to help in addressing them. There was a lot going on with V.K.B. For such a young child she had suffered a lot of trauma. She had been in foster care for a long period of time. Her father spoke of her being “bounced around” to a number of caregivers when she lived with her mother. By 2013 she had not seen her mother for a year and had to deal with that abandonment. The description of her crying at the window for her mother was heartbreaking. She finally finds some stability in the home of her father and S.H., and then in 2014/15 her parents separated, and N.B. is no longer involved with the children. Each of the children expressed how much they missed him and how this impacted them. He finally returns into their lives, only to largely absent himself when his life otherwise became busy and his relationship with S.H. became more difficult. This is a lot for a young child to manage and she was understandably angry and upset with her father.

b. Both times that disclosures were made, V.K.B. had been in trouble for sexualized behaviour. While this alone is not determinative, and I recognize that these events may have simply given V.K.B. the opportunity to make the disclosures of traumatic events, when one considers all the circumstances of this case there is cause for concern.

c. The circumstances surrounding each disclosure in 2013 and 2016 were circumstances of V.K.B. being reprimanded for sexualized behaviour towards her brother and her sister. V.K.B. had no recollection of this, or of the fact that the 2016 disclosure was first communicated by V.K.B. in response to being reprimanded for inappropriate sexual touching with C.B. V.K.B. had no recollection of that part of the 2013 Grandma “P” incident that involved getting into trouble for playing a sexual game with her brother.

d. Also, extremely worrisome are the comments made by V.K.B. to police with respect to “S”. During her police interview, while V.K.B. showed some discomfort at discussing incidents with her father, it was when she began to talk about “S” that an obvious change in her demeanour occurred and she began to wipe her eyes. While there is no evidence that “S” was around the family in 2013 when the first disclosure occurred, and V.K.B.’s sexualized behaviours appear to pre-date her interactions with “S”, what was happening between these two children around the time of 2016 disclosures is extremely worrisome. V.K.B. was upset enough by the behaviour that she told the officer she wanted it to stop. She was distressed by it in her interview. She was disturbed enough by the behaviour that she felt she needed to go to her grandmother’s home to avoid “S” and to make it stop. D.C. Caccamo candidly acknowledged that in hindsight this should have been explored more, and I agree. At trial, V.K.B. could not recall any concerns with respect to “S”, but it was concerning that she felt she had put it in the vault in her brain of bad things she did not want to remember. This is one more factor that calls into question what has happened to V.K.B. and by whom. I believe her that something traumatic has happened to her. I simply cannot say that the Crown has met its burden of proving that it was at the hands of her father.

e. There are various inconsistencies in the incidents discussed by V.K.B., both with respect to her own evidence and that of others. One example is with respect to the adult toy. According to V.K.B., the adult toy incident allegedly involved all three children, but neither of the other two children recalled this incident. According to V.K.B., this incident happened closer to the date of their police statements than any of the other incidents alleged. The evidence of B.B. is that the only time he had seen the toy was when V.K.B. showed it to him and tried to have him use it. Initially V.K.B. testified that her father told them to use the toy on him, later in her evidence she could not recall if he had, in fact, done so.

86With respect to C.B. I cannot discount the potential that the reliability of her recollection both in her police statement and at trial, have been influenced by conversations that have been had with others, and do not represent her independent recollection of her own experiences:

a. She was only 6 years old at the time of her statement to police. The disclosure in the interview on its face is disturbing. A closer examination raises some question as to whether her statement was influenced.

b. In the initial disclosure C.B. was clear that she was sleeping when events began to unfold and did not wake up until the assault was occurring. Despite this, she states in the statement that her dad told the other children he was taking her upstairs. This information could have only come from a conversation about the alleged event with one of the other children. C.B. acknowledged that she had been speaking to V.K.B. about the event, when she indicated that V.K.B. had told her that her dad was drinking alcohol on the day of the event. When asked if she could describe what “doing it” meant, she indicated that she could not, but V.K.B. could. While subsequently C.B. showed what it meant through her stuffed toy, this raises some concern that the children had been having discussions prior to the police interview, and lends some credence to the defence suggestion that the allegations were derived by V.K.B. to deflect responsibility for her own concerning behaviour.

c. Aspects of the disclosure of the primary incident both initially to the police and at trial raise cause for concern. Initially C.B. told police that her father put his penis inside her bum, but that it did not hurt. At trial she did not testify that her father’s penis was inside her bum or her vagina, but rather touching her bum. She testified that she was laying on her stomach while her dad was lying beside her engaging in this conduct as opposed to on top of her.

d. Normally the depiction of the sexual activity given by C.B. to the police would raise cause for concern as being unusual for a child of her age. However, in this case, her description is also consistent with the sexualized game that V.K.B. engaged in with her brother and male cousin, that C.B. witnessed. S.H. testified that C.B. was in the room when V.K.B. was caught engaging in simulated sex acts with her brother.

e. With respect to the timing of the disclosure, all that C.B. recalled was having been in the bathtub at her grandmother’s home and becoming upset. She remembers talking to V.K.B. about being upset while in the tub. She surmised she was upset because she remembered what her father had done to her. She had no recollection of the events told by her grandmother, being that C.B. was upset about V.K.B. forcing her to touch her.

f. Initially C.B. was clear in testifying that she never saw anything between V.K.B. and her dad. Later in her evidence, after breaks, she recalled for the first time the shower incident that B.B. recalled. Although she did not see anything happen, she assumed something must have happened given that V.K.B. was crying and N.B. was with her. I could not help but be left with the impression that this was not an independent recollection, but also that it was indicative of the children’s willingness to now assume the worst from their father.

g. C.B. believes that her mother told her she was out shopping when the primary incident happened. She recalls a “humongous” conversation with her mother before the police interview. She participated in group counselling with her siblings. She recalls speaking with V.K.B. about various things. All of the children acknowledged discussions with each other and the adults in their life about the events.

h. C.B.’s evidence of events being revealed in dreams while she is sleeping is somewhat concerning. It is hard to know whether she was experiencing flashbacks or whether she has confused dreams with reality.

87With respect to the evolution of the children’s disclosures, in of itself, this would not have been a concern. I accept D.C. Caccamo’s evidence that it is not unusual for disclosures made by children to evolve over time; that they do not always remember everything during the course of the initial interviews or for some reason are not comfortable disclosing it. These were also very young children. In this case, there was some concern with respect to the evolution of disclosures given the conversations that were ongoing as between the children, with other family members, and in group counselling.

88B.B.’s evidence was indicative of this. In his initial police interview he spoke of only good times with his father and how much he missed him and wanted to see him. When asked if he was aware of any bad things happening, he responded without hesitation “no”. His evidence was considerably different by the second interview and the disclosure of the shower incidents. In the meantime, it was clear that discussions were happening about the disclosures around him. There was a conversation that happened in the car after leaving the police station in January of 2017, a conversation that T.B. had with V.K.B. that prompted B.B. to say he remembered something, and most concerning is the group counselling that occurred. While B.B. offers a reasonable explanation for not disclosing the shower incidents in the first interview, this potential for his recollection to have been unintentionally influenced is significant. B.B. himself said “everyone” had been talking to him about this. Significantly, he described recalling repeated acts of traumatic assaults committed against V.K.B., but V.K.B. never mentioned this alleged incident.

CONCLUSION:

89For the foregoing reasons I find that the Crown has failed to prove its case beyond a reasonable doubt. The Accused is found not guilty of all charges on the indictment.

90I recognize that this has been an extremely long, and difficult process for the Accused, S.H., their respective families and not the least of which, the children. The distress displayed at times by each of the children was heart-wrenching and was not lost on me in reaching this decision. Conversely, each of their smiles, particularly when they realized they had concluded their evidence were infectious. I recognize that this decision will be entirely unsatisfactory and feel unjust for some. The criminal court process is now concluded. I sincerely hope that without this proceeding hanging over the heads of the parents and the children, the long and difficult road to healing can begin.

91Finally, I wish to thank both Ms. McGill and Mr. Matthews. Matters such as this dealing with children are difficult and weigh heavily on counsel and the Court. I wish to thank them for their sensitivity and professionalism displayed throughout this matter.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: March 1, 2021

/lvp