COURT FILE NO.: CR-21-5
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
N.S.
M. Lavigne for
Her Majesty the Queen
C. Dostaler for
N.S.
HEARD: May 9, 12, 25, 26, June 1 and 3 2022 (L’Orignal)
reasons for decision
Pursuant to s. 486.4 of the Criminal Code there is a continuing order
in place making it an offence for any person to publish information
that might lead to disclosure of the identity of the complainant.
o’bonsawin J.
Background
1The Complainant first met the accused, N, at the daycare at his school when he was eight or nine years old. N was a staff member at the daycare. The Complainant’s mother, C, met N at the daycare and they eventually got married. The Complainant alleges that N sexually assaulted him for many years.
2Originally, there were sixteen counts laid against N. He pled not guilty to all counts. At the end of the trial, the Crown asked that counts 2, 4, 6, 7, 9, 10 and 15 be stayed. More specifically, one count for sexual touching of a person less than sixteen contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”), five counts for being a person in a position of trust or authority towards a young person for a sexual purpose contrary to s. 153(1)(a) and one count for sexual exploitation contrary to s. 151.
3Prior to the commencement of trial, a s. 486.4 order was issued regarding the non-publication of information that could lead to the disclosure of the Complainant’s identity. I also issued an order as per s. 486.2 to permit the Complainant to testify via closed-circuit television and that he was permitted to have a support person present with him as per s. 486.1(2). In addition, N admitted to the following:
jurisdiction;
identity of the accused as the Complainant’s stepfather;
age of the Complainant; and
jurisdiction to hear the charges based in Kingston and Toronto.
4There were three photos of the Toronto condo that were entered on the consent of both parties.
5The Crown called the Complainant, the Complainant’s girlfriend, E, and the Complainant’s mother, C to testify. N elected to testify.
Evidence
6I will summarize the evidence of the witnesses.
7The Complainant’s most relevant evidence is summarized as follows:
He is currently 20 years old and is a college student. He has been dating his girlfriend E for almost six years.
In 2009, when the Complainant was eight or nine years old, he met N. However, at that time, N had a different name and went by P. The Complainant attended that daycare attached to his school. During the whole time the Complainant knew N, and until the charges were laid, he always called him P. N worked at the daycare as a counsellor.
At some point, N started dating C, the Complainant’s mother. N was involved in more than half of the Complainant’s life as his stepdad.
The Complainant and N had a good relationship. N was not very strict.
The Complainant, N, C and K (N’s roommate), first lived together in Orleans. They did not live there very long. The Complainant was maybe nine or ten years old. The house had two floors plus the basement. The layout of the second floor consisted of the Complainant’s bedroom to the right of the stairs and C and N’s bedroom directly across the hallway. K’s bedroom was to the right of the Complainant’s bedroom.
After leaving that first home, they moved in with C’s parents in Orleans. The Complainant was probably ten or eleven years old at that time. The Complainant lived with C, N, his maternal uncle S, his grandparents, and later, his little brother CH. C and N had a child together, CH. This house had two floors and a basement. It also had five bedrooms. S’ bedroom was up the stairs to the right, the Complainant’s bedroom was all the way down the hallway, his grandparents’ bedroom was to the left of his and beside the Complainant’s bedroom was C and N’s bedroom. There was another bedroom in the basement that was not used. When CH was born, he slept in his parents’ bedroom.
When the Complainant was about 12 years old and in Grade 6, they moved to Russell. That house had two floors and a basement. There were four bedrooms upstairs. On the second floor, the guest bedroom was to the right of the stairs, the Complainant’s bedroom was next to it, across the hallway was N and C’s bedroom and next to theirs was CH’s bedroom. When the Complainant was in high school, the basement was finished, and his bedroom moved to the basement.
The Complainant met with police on two occasions to provide statements.
The first incident the Complainant can remember took place in the house in Orleans when they lived with N’s roommate K. The Complainant’s bed was in the middle of the room with the headboard against the right wall and there was a light (it may have been a night light) on the left of his bed. The Complainant recalls the light. He cannot identify the year that this happened and whether it was during the school year or during the summer. During the night when the Complainant was in his bed, he remembers waking up and seeing N standing in the room close on the left-hand side of his bed. The Complainant was able to see it was N because of the light next to his bed. The Complainant does not recall what he was wearing. The Complainant recalls N using his hands to touch and stroke the Complainant’s penis. N removed his boxers and placed the Complainant’s hand on N’s penis and made him stroke it. The Complainant was shocked, he did not know what was happening because of his age (he thinks he was maybe eight years old) and pretended he was asleep. The Complainant was facing left when this happened. His eyes were closed most of the time but at times they were slightly open, and he was able to see what was happening. During this time, N did not say anything. The Complainant does not know what made N stop and cannot recall how long it lasted. After N left and returned to his bedroom, the Complainant went back to bed as if nothing had happened.
There were no incidents in the grandparents’ house
The next incident the Complainant recalls occurred in their house in Russell. In his bedroom, his dresser was to the right side of the room, there was a desk in the right corner and his bed was in the left corner with his pillows on the back left wall. During the night, the Complainant was sleeping in a sleeping bag in his bedroom upstairs. He did this at times because it was fun. The Complainant is unsure of his exact age, but he thinks he may have been 13-14 years old. He does not recall if he was in school at this time. The Complainant recalls waking up on his back to N unzipping the sleeping bag. N was at the side of the bed, on the Complainant’s left side. The Complainant froze and did not know what to do. He was scared and stayed still and pretended he was sleeping. N then put his hand inside of the Complainant’s boxers to touch his penis and stroked it. The Complainant cannot recall which hand N used. He thinks it may have lasted for about 10 minutes. The Complainant cannot recall why N stopped. N pulled the Complainant’s boxers back up and left his bedroom. The Complainant went back to bed. Both C and CH were also in the house at the time.
The Complainant recalls another incident in his little brother’s bedroom. At times, the Complainant slept in CH’s bedroom when the latter was scared. CH also thought it was fun when the Complainant had a “sleepover” in his bedroom. CH had a double bed at that time. CH’s bed was on the left side of the bedroom with the headboard against the wall. There was also a swing in the corner of the room and a dresser immediately to the left when someone walked in the bedroom. During the night when the Complainant and CH were sleeping, the Complainant remembers N coming into the bedroom and he started to feel something move. Then the Complainant realized it was N, and the former just froze up like he normally did. He kept his eyes squinted closed. N put his hand inside of the Complainant’s boxers, touched and stroked the latter’s penis. The Complainant cannot recall which hand N used. N was kneeling beside the bed and said nothing. The Complainant cannot recall the time of year. This incident occurred before the Complainant moved to his bedroom in the basement. If he had to guess, the Complainant thinks that it may have lasted ten minutes. He does not know what made it come to an end. N fixed the Complainant’s boxers by pulling them back up and left his bedroom. CH was sleeping during this event.
The Complainant is only able to make out certain incidents into an actual memory because a lot of them blend together in his head. He knew what was happening, he did not like it and he did not know what else to do. He was afraid about what else might happen to him if he looked like he was afraid. The Complainant believes that around 15 incidents of sexual nature with N took place in their house in Russell.
During the summer of possibly 2018, the Complainant and N went to Kingston for a weekend. He was in grade ten or eleven. They went go-karting close to Kingston and then went to a batting cage. They stayed in a hotel room with two beds either double or queen beds. They each had their own bed. Later that evening, they went to the hotel pool which had a water slide. Once they returned to their room past 8:00 p.m., they had alcoholic drinks. He thinks they were mixed drinks with Jack Daniels. N had gotten the alcohol for them. Before this trip to Kingston, the Complainant did not drink often with his parents. Drinking was still fairly new to him. They played drinking games. The Complainant did not have too much to drink but he was definitely drunk. He could say a sentence and talk but he was slurring some words. N also seemed a little intoxicated. They went to bed later after 11:00 p.m. The Complainant woke up to movement in his bed. He was laying flat on his bed and N was sitting on the Complainant’s legs. N went underneath the blanket and his whole body was then underneath the blanket that was covering the Complainant to his torso. N had a flashlight and it looked like it was his phone light. More specifically, the Complainant recalls N going under the blanket, the former squinted his eyes, and he remembers a light getting turned on because he could see it through the sheet. The light was pointed at the Complainant’s boxers before N pulled them down. N touched the Complainant’s penis with a stroking motion and also put his mouth on his penis. The Complainant is unsure which hand N used to touch his penis. Although he cannot remember exactly, he thinks N did all of this for maybe 20-25 minutes. N performed oral sex on him for about five to ten minutes, but he is not 100 percent certain. N did not say anything during this time. The Complainant does not know why N stopped. N just got off of the Complainant and went back to his bed. The next morning, the Complainant was pretty shaken up about the whole thing and on the car ride home, he did not talk to N. The Complainant did not know what to do and did not want to confront N. During the car ride, N was curious as to why the Complainant was not talking to him or acting weird and he tried to make jokes, but the Complainant did not want to talk to him.
When he was around 16 years old, the Complainant moved to the basement because he would feel safer there. It would be harder for N to get to him in the basement. There were not any incidents with N in the basement.
The Complainant, C, N, CH, his uncle, S, and his girlfriend, E, went to Toronto for CH’s birthday in February 2020. They stayed at an Airbnb in an apartment complex (the “apartment”). There were three bedrooms. The Complainant thinks that S slept in a bedroom, C and N slept in another bedroom and possibly CH slept with them, but he is unsure, and he and E slept in a bedroom. When a person walked into the apartment, there was the kitchen on the left-hand side and all the bedrooms and washroom were on the right-hand side. They went to the CN Tower, ate and then returned to the apartment. At around 7:00-8:00 p.m., the Complainant, S and N started drinking. He cannot recall what he drank. The Complainant’s level of intoxication was more than in Kingston and he was stumbling when he was walking. C and E went to bed and the men stayed up. They were messing around the apartment, talking, and laughing. They also went and ran in the apartment building stairs. They all went to bed late, something like 12:00-1:00 a.m. When the Complainant went to bed, E was already in bed. He woke up when E shook him, and she told him she loved him and that she was scared. The Complainant asked E what had happened, and she told him she saw N touching the Complainant under the blanket. E thought that the Complainant would think she was crazy and was lying. He told her that he believed her and that this was not the first time that N had touched him. E cried. They talked for five to fifteen minutes but it is confusing to him because he was intoxicated. E had had a conversation with N, but he was not part of it. After the Complainant tried to calm E down, they went back to bed. The Complainant, E, N, S and CH returned home that day. C stayed in Toronto with a friend. The Complainant thinks that his mother became aware something had happened from E but that she was not aware of the allegations. C said that they would discuss this when she returned home. When C returned home, she, the Complainant, N and E all sat at the table to talk about it. E brought up that she saw N touching the Complainant under the blanket and N responded that he did not do that. He said that when he was drunk, he had gone into their bedroom by mistake because he thought it was the door to the washroom where he wanted to go throw up. N said that they had to listen to him because E could ruin his life. The Complainant did not really have a reaction to N’s version of events because he knew N was lying and what E said was true because this was not the first time that N had done this to him, so it was no surprise. E was very defensive and did not accept N’s version of event. His mother believed E but was really torn up about what was happening. The Complainant told E to go wait for him in her car and she went outside. The Complainant then asked his mother to go speak to her upstairs. He told C that it was not the first time that this had happened, and his mother immediately broke down and started crying. The Complainant has never seen his mother in such a state. He gave C a hug to console her and asked her if she had a place to stay that evening. She responded that she did. He then left and went to E’s house. The Complainant had never told his mother before about N sexually abusing him.
The Complainant has been thinking more about the incidents with N lately and has remembered more things although he does not want to put himself in that mindset.
8E’s most relevant evidence is summarized as follows:
She is 20 years old and a college student. She has been the Complainant’s girlfriend since 2017.
When E started dating the Complainant, his bedroom was on the second floor of the house on the same level as the master bedroom. One year later, his bedroom moved to the basement.
During her relationship with the Complainant, E has had a good relationship with C who has been very present in her sons’ lives, and she was very welcoming. She had a good relationship with N, but she was a little less comfortable with him because she is more comfortable with women. E normally speaks French to N.
During the long weekend in February, E went to Toronto with the Complainant and his family to celebrate CH’s birthday. They left on Saturday, February 15, 2020. They rented an apartment. When one entered the apartment, there was the kitchen on the left with a living room in an open concept and on the right, there were the three bedrooms. CH and S were in the first bedroom, then there was the washroom, their bedroom was next, and C and N’s bedroom was the last one. When they arrived in Toronto, they went to the Aquarium and then to the restaurant in the evening. They returned to their apartment and went to bed. The next day, they relaxed in the morning and then went to the CN Tower. They returned to the apartment to get ready for CH’s birthday dinner and then the Complainant, N and E went shopping at the Eaton Centre. While shopping, E and the Complainant had an argument because she was talking too much to N and the Complainant felt left out. E described it as a “dispute silencieuse” [silent dispute – my translation]. They then met up with the others at the restaurant at 7:30 p.m. At first, the Complainant was cold with her but then they discussed it, and all was well. They had dinner and then went to another restaurant for dessert. They returned to the apartment between 10:30-11:00 p.m., watched some YouTube videos and listened to music. S, N and the Complainant drank beer and vodka. E had a couple of sips of Sake at the restaurant and a Bombay type of drink at the apartment, but she did not drink enough to become intoxicated. She stayed up with the group until about 1:00-1:30 a.m. and then went to bed. C and CH had gone to bed before her. The Complainant, N and S stayed up.
Their bedroom was quite small and did not have any windows. The bed was on the right against the wall and there was a night table to its left. After E went to bed, the Complainant came into their bedroom and got a pack of playing cards. Although she fell asleep after she first went to bed, she slept lightly because she could hear the men partying. The Complainant went to bed with her, but she does not know at what hour. She was sleeping on the right side of the bed against the wall and the Complainant was sleeping on the left side of the bed. E saw their bedroom door open, and she saw light from the living room. She was sleeping on her side facing the Complainant and he was facing the left side of the bedroom. They were spooning. E saw a man enter their bedroom and crouched next to their bed. She realized that it was N. He reached under the bed sheet towards the Complainant’s genitals. E saw movement “movement va et viens, du frottement” [back and forth movement and rubbing – my translation] under the sheets in the area of the Complainant’s genitals, above his knees and under his chest area. E believes N used his right hand to touch the Complainant’s genitals. At that moment, N’s back was towards the door near the head of their bed. This lasted about five to ten minutes. E could see the top of N’s back and at times he was crouched and would lift himself onto his knees and then back to being crouched. No one spoke and it was silent in the bedroom. At the time, E thought, “il [N] commettait des actes d’attouchements sexuels à mon copain” [he was committing acts of sexual touching on my boyfriend – my translation]. During this time, E pretended to sleep, and she put her left arm onto Complainant’s chest. N then left their bedroom. During this whole time, the Complainant was sleeping. She had tried to pinch him in the bottom of his back to get him to wake up and he did not move. After N left their bedroom, she continued to try to wake up the Complainant to no avail. She then got up and went to see N, who was in the washroom. N was crouched next to the toilet, and she got the impression he felt like he was going to throw up. She asked him what he was doing in their bedroom because she saw what he was doing underneath their sheets. E was very emotional at this point. N responded that he felt like he was going to throw up and wanted to pause to take a breath in their bedroom before heading towards the washroom. E then returned to the bedroom and called her mother and told her what had just occurred. Her mother had difficulty understanding her because she was whispering and was crying. At this point, it was near 6:00 a.m. and the Complainant was still sleeping. The call with her mother ended when N knocked at their bedroom door. She hung up and opened the door. N was in the common area of the apartment and the Complainant was still sleeping. N tried to explain to her that he had not do the actions she thinks she saw, and she was making huge accusations against him. She asked to see his cell phone because she thought he may have used it to take photographs or a video to confirm what she had just witnessed. He did not have his cell phone with him. After a few minutes into her conversation with N, C joined them and asked if all was okay. E responded “yes” and N responded “no”. N told C that E had just accused him of having sexually touched the Complainant. C remained calm. The Complainant was still sleeping in their bedroom. After she told C her version of the event, C decided that they should get the Complainant. E went into their bedroom and tried to wake up the Complainant. She had difficulty doing so but was finally able to wake up the Complainant. N told C that he was nauseous, took a little break in their bedroom to get his breath and then headed to the washroom. E cannot recall if the Complainant said anything. He had been part of the conversation for only a few minutes. Afterwards, the Complainant asked E to return into their bedroom because he wanted to speak to her. Once there, he tried to console her, and she asked him if he believed her. The Complainant responded that he believed her because this was not the first time that N had touched him sexually. While she was very emotional, the Complainant was very calm and composed. Later that morning, E, the Complainant, S, CH and N returned to Russell. No one talked in the car. C had already planned to remain in Toronto that day with her friend. On the Monday evening, E started the conversation with Complainant because she had a lot of questions. She wanted to know for how long N had been sexually abusing the Complainant. He did not really want to talk about it. He finally told her that it had been more than ten years and that he remembered a few incidents. He did not want to talk about it because he wanted to keep his family intact. E felt very sad when he told her this. The Complainant was emotional but did not cry. It was difficult for him to share this with her because he had never talked to anyone about it. He knew that he had to talk to his mother about it.
On Tuesday evening, around dinner time in the family home in Russell, the Complainant, C, N and E talked about the situation. The goal of the discussion was to talk about both E and N’s version of events. E said that N entered into their bedroom in Toronto and that he sexually touched the Complainant. She cannot remember if she said specifically which party of his body N touched. N was defensive and gave the same story that he was on his way to the washroom because he was nauseous and took a break into their bedroom to take his breath and then went to the washroom. C was calm and composed and tried to see both perspectives. However, C was confused. E cannot recall if the Complainant said anything during the conversation and it ended when the Complainant asked to speak to his mother alone. They went upstairs to her bedroom and E went to her car to wait for the Complainant. Afterwards, C and the Complainant went outside. C was crying and told E that the Complainant had told her about what had happened. E and the Complainant then left and went to eat. C went to her friend’s house for the night.
On February 21, 2020, E attended the police station to provide her statement.
9C’s most relevant is summarized as follows:
She is from the Ottawa area and works as a registered psychotherapist for a local community health centre. She has worked in mental health for 18 years and in 2015, she returned to school to complete her master’s degree.
C has two children: the Complainant, with her ex-husband CL, and CH, her son with N. C and CL separated in 2003.
N changed his name a number of years ago from P to N. She signed the papers as his wife acknowledging his change in name.
In 2008, C and N met at the Complainant’s school. N was the after-school program manager and she saw him when she picked up the Complainant from school. C noticed that N was around when she picked up the Complainant from school and they often made efforts to connect and chat. The Complainant seemed to really like N. C and N spent more and more time connecting. Their first date was in November 2008. They decided to get married in July 2009. Shortly after their wedding, C and the Complainant moved in with N. The Complainant saw his father every second weekend and otherwise, he was at N’s house with him and C. Before they moved in together, the Complainant slept at N’s house 1-2 times per month. The Complainant slept in the open concept area on a futon.
In September 2009, they moved into another house with N’s roommate in Orleans. C, N, the Complainant and N’s roommate, K, all lived together in the new rental townhouse. This house had a basement, a main floor and an upper floor and it had three bedrooms. C and N shared the master bedroom with the ensuite, the Complainant had his own bedroom and K had her bedroom. The master bedroom was located on the left side of the stairs and the other two bedrooms were located on the right. They lived in this house for about one year. At that time, the Complainant was turning eight years old.
Afterwards, C, N and the Complainant moved into C’s parents’ house in Orleans. She was pregnant with CH and her parents offered that they could stay there so that they could buy a house of their own afterwards. C and N slept in the basement and the Complainant already had his bedroom at his grandparents’ house. C’s brother, S, also resided with their parents. There were four bedrooms upstairs and one in the basement. The spare bedroom was eventually turned into a nursery for CH who was born in 2011.
They lived with C’s parents until they moved into their house in Russell in July 2012. They resided there for eight years. Their new house was a single-family house with three floors. When they first moved in, there were four bedrooms on the second floor. When one first arrived up the stairs onto the second floor, on the left side there is a washroom, and then CH’s bedroom. To the right of the stairs there was a spare bedroom and then to the left there was another spare bedroom and then the Complainant’s bedroom. At that time, the Complainant had either a double or a queen bed. The bed was located in the middle of the Complainant’s bedroom.
The Complainant and CH slept in the same bed at times. This occurred infrequently when CH was younger, until he became of age to attend school. CH adores his older brother even though there is a nine-year difference. They went to bed at very different times. Their bedrooms were near each other so they could have gone in either bedroom.
Even though CH is now 11 years old, he still asks to have sleepovers in the Complainant’s bedroom. It was more challenging after the Complainant moved into his bedroom in the basement in between 2017-2018. C had inherited a little amount of money after her father’s death and used it to finish the basement where the Complainant, as a teen, would appreciate to have his own space. When C and N offered it to him, he was very excited about it.
C first met E during the summer that they were in Grade 10 going into Grade 11 about five years ago. They were very close to E because she is kind, family oriented and has the same values as them. E is also good to the Complainant and wonderful to CH. She brought out the best in the Complainant as a student since she is an “A” student. C is very grateful that the Complainant found such a great partner at such a young age. N loved E as much as C did, and they had a great relationship.
C and the Complainant have an awesome relationship. They have been close since he was little, and she is grateful they remain very close.
C thought that N and the Complainant had a very good relationship and she thought at the time that N was a really great stepdad to the Complainant. She felt very fortunate when N entered their lives because N was very open, and he wanted to be in her life and also to be a staple in the Complainant’s life because they came as a package deal. N had a different relationship with CH than with the Complainant. It was an inside joke between C and N that the Complainant was N’s favorite. N was always the first person to offer to drive the Complainant, pick him up and took every opportunity to spend time with him.
C knew about their outing to Kingston and the baseball diamond park in August 2016. She found the dates of transactions by calling the bank and they were able to locate the dates for her. N had asked her if he could take the Complainant to spend some one-on-one time with him. C recalls giving N a hard time because she was his mother and wanted to spend some one-on-one time with the Complainant too. She now thinks it was foolish of her because at that time, she thought N wanted to invest time and energy with her son.
On the weekend of CH’s birthday on February 16, 2020, C, N, the Complainant, E, CH and S went to Toronto to celebrate CH’s birthday. They left on Saturday morning and arrived at lunchtime at their rental apartment in a high rise building that was walking distance to the CN Tower and the Ripley’s aquarium.
When one entered the front door of the apartment, there was a big room with a kitchen to the left and a living room to the right. On the right hand-side there were three bedrooms and a washroom. The first bedroom on the right-hand side had two twin beds and S and CH slept in that bedroom. She is unsure if the next bedroom was the washroom or the bedroom. She knows for certain that her and N’s bedroom was the furthest away from the door because they had a view of the CN Tower.
After their arrival, the children wanted to go swimming in the apartment building. They then went to Ripley’s. On late Sunday morning, they went to the CN Tower. C, the Complainant and E went shopping at the Eaton Centre. They had made a reservation at a Japanese restaurant for 7:00 or 8:00 p.m. for CH’s birthday dinner and C’s friend from Yorkville was to meet them at the restaurant. When they first arrived at the restaurant, the Complainant and E went to the washroom. C could see that E was visibly upset. She did not ask them about it because she trusted that they could figure it out. N told C that E was being a drama queen and overly emotional. C took offence to N’s comment since E is the Complainant’s girlfriend and it is none of their business. C let it be, but it soured the mood for her and N during the dinner. They put it aside to have a nice family dinner for CH’s sake. They then all went to a cheesecake café close to the Japanese restaurant. They were there for less than one hour and returned to the apartment at around 11:00 pm. C’s friend did not return with them. The men were in a good mood when they returned to the apartment, and C was not in a great mood. C had drunk a glass of wine with dinner and cannot recall if she had another half drink at the apartment. The Complainant and E were not drinking at the restaurant because they were not yet 19 years old. C was really tired and did not stay up very late. Within one hour after their arrival at the apartment, C thinks that E had already gone to bed when she went to bed, or they went to bed at the same time. The Complainant had likely had his first drink when they returned to the apartment. S likely had a beer or two but was not intoxicated when she went to bed. C fell asleep when she went to bed. C has no memory of N going to bed with her. In between 5:30 and 6:00 a.m., C was woken up by N entering their bedroom. She asked him what was going on and why he was still awake. He told her not to worry about it and to go back to sleep. He was dismissive but C and N had not had a good time that evening and she assumed N was still annoyed with her. She could not recall what N was wearing at that point. C recalls wondering why N was up so late and what was going on. N appeared annoyed and he was only in their room for about 30 to 60 seconds and then went back out. Within a few minutes, C heard voices and realized that it sounded like someone was crying and she got up. When she left their bedroom, she saw N sitting on the ground at the door and E was across the room from him, bordering between the kitchen and living room. There was about eight feet of distance between E and N. C saw that E was really upset, shaking, and crying. C asked them what was going on. N said something like E was accusing him of being a creep or something like that. E had trouble putting two words together and this was anormal for her because normally she is very talkative and outgoing. At that point, C started asking questions because she did not know what was making E so upset. C was finally able to ascertain that nothing had happened to E, but something had happened to the Complainant. E said she had seen N at the side of their bed. N explained that he had gotten up in the middle of the night because he thought he was going to throw up. He went into the Complainant and E’s bedroom by accident because he thought it was the washroom and laid down on the ground. At that moment, C was listening to her partner of ten years, and she believed him. However, E’s reaction did not make sense to C. Nothing was making sense to C, so they woke up the Complainant. They had difficulty waking him up. He appeared exhausted and groggy because he had some drinks and is a sound sleeper. Although C initially thought something had happened to E, when the Complainant joined their conversation, she thought that N went into their bedroom, was drunk, and accidently jumped into bed with E, or something like that. The Complainant told them he was passed out and he had no information to share with them and had no memory of anything happening. The Complainant then asked to speak to E alone in their bedroom. They went into their bedroom and C waited in the living room until their conversation was done. She asked N again what had happened, and he gave her the same story. The Complainant or E came out of their bedroom and C asked if all was okay. The Complainant said: “can we just drop it for now”. C was surprised and said that they had to talk about what had happened but because the stress level was high, they agreed to talk about it later. They then all went back to bed. N wanted to get some sleep because he was going to drive them back to Russell. C could not sleep, and she laid in bed and tried to figure out what had happened. She ended up getting up because she could no longer stay in bed. When C and N talked about it, N was defensive and frustrated. He told her that essentially, nothing had happened. CH got up between 7:00 and 7:30 a.m., and E got up shortly afterwards. CH said nothing when he got up. C checked in with E and asked her if she was okay and if there was anything that she could do for her. C was worried about E. E was much calmer.
On their way out from Toronto, N, the Complainant, E, CH and S dropped off C at her friend’s house. C told them that when she returned home the next day, they would discuss what had happened the night before. At that time, C did not have a conversation with the Complainant about what had happened in Toronto. C would never have stayed in Toronto with her friend if E had provided her with the details of what she had seen.
On Tuesday the next day, she made arrangements for CH to go to her in-laws’ house and she texted or called E to tell her she was on her way home. After she arrived, C, N, the Complainant and E sat around her dining room table in their family home. It was around 5:00 or 6:00 p.m. C started the conversation and said that she wanted to know exactly what had happened on the Sunday night from start to finish from both perspectives of N and E. N told his story of waking up in the middle of the night, thinking he was going to be sick, went into E and the Complainant’s bedroom thinking it was their washroom, laying on the ground and touched the side of their bed and blankets. At that point, C had no reason to doubt her husband of ten years. In response to N’s version of events, E gave her version. E said that was not what had happened. She explained that she saw N go into their bedroom, he lied on the ground, she saw him put his hands underneath the blankets, although C is unsure of the exact words used by E, and they she saw N touch the Complainant “down there”. This was the first time C heard these details. From what she had learned the day before, E had told her that nothing had happened to her, but something had had happened to the Complainant. E may have told her about N being on the side of their bed, but she is unsure of when she learned this detail. C was in complete shock. E was very embarrassed but was very clear about what she was saying. The Complainant did not react at all. N asked E if she understood the seriousness of her allegations against him. This conversation lasted between 15 and 30 minutes. N told E she was lying. N was quite upset. C recalls telling the kids she had to keep them safe, and she remembers worrying about what all this meant for their family, the children, and their safety. C asked the Complainant if there was anything he remembered. He was very matter of fact and responded that it came down to either C believed N or E. C was very worried about his matter-of-fact response. The conversation ended when the Complainant asked C to talk to her in private. E left and went into her car. They went upstairs into her bedroom. C told the Complainant that if there was something that he remembered from that night he had to tell her because the impact of what was happening was a big deal. The Complainant could not look at C in the eyes and kept looking down. He then just looked at her and said, “Mom, this is not the first time this has happened.” At that point, C realized that this was not a singular event and that this had happened to her son before. C cried and the Complainant cried as well. C asked him how long it had been going on for and how bad was the abuse. She also asked him why he had never felt comfortable enough to share this with her. The Complainant responded to the effect that C was so happy, and they were so happy as a family. He told her it had happened when they lived in Orleans and in their house in Russell and that it was the same where N would sneak up to his bedroom, lie on the ground and fondle him. She cannot recall when, but the Complainant told her that N had done this to him a lot. She cannot recall if he told her about when it happened in the house in Russel, in CH’s bedroom and on their trip to Kingston. The Complainant asked C not to confront N because he was worried of how N would react. C promised that she would leave to stay at a friend’s house for the night. Their conversation lasted about 15 to 30 minutes. The Complainant left with E. C texted her best friend who is N’s cousin and was with CH at her in-law’s house. C advised her friend that something had happened, and N could not be around CH “right now”. Her friend offered to take CH to school next day. When C went downstairs, she had a bag with her, and N was upset. C told N that she was leaving and that she was overwhelmed. She lied and told him she did not know what to believe and needed some space. N was very upset that she was leaving. That was the last time that C and N discussed the incidents. N texted C that evening and the next day. He told her that he could not believe that she thought he could do something like that to “our son”. He also said that she should check with the Complainant before she disclosed to other people what had happened because N did not want his own story revealed to others. N had shared with C that he had been sexually abused as a child. C stopped replying to him afterwards.
On Wednesday, C made sure that N was at work when she returned home with her friends. She called the Ontario Provincial Police and had the locks changed on their house. N arrived at their house because he had found out she was packing his belongings. He asked her what she was doing, and she told him he knew what had happened and that he had to leave. Those were her last words to N.
On the same Wednesday morning, C and her friend went to E’s house to talk to the Complainant. She told him that she was going to call the police about what he had disclosed to her because she had an obligation to keep him and others safe. C told him the next steps were going to be up to him about whether or not he would be willing to speak to police and share his story. The Complainant was a bit apprehensive, but he understood. Close to lunchtime, C called the police on two occasions because they were out on a call. She later spoke to Cst. Hanh and provided her details about some of what happened. Cst. Hanh asked C if she could call the Complainant directly to see if he was willing to go into the police station to provide a statement. The Complainant did so the following day.
C has spoken very little of the sexual assaults with the Complainant since she is mindful that she is his mother and her family doctor and therapist told her that the details of what happened to her son are not helpful to her. She has to be mindful and not ask him questions and if he tells her things she should not try to push him. C works with survivors of violence and she is mindful to empower them.
N moved out of their family home on February 19, 2020.
About one year after the Toronto incident and since she was dealing with her matter in family court, C asked the Complainant if she knew everything from him about what had occurred because her lawyer needed the information. He responded “no” and C said it was “okay”. She received no details about the Kingston trip other than it was the worst abuse the Complainant suffered at the hands of N.
10N’s most relevant evidence is summarized as follows:
He is currently 35 years old. He works for the Government of Canada.
N and C were married on July 7, 2009, and they have a son together, CH. He was born on February 16, 2011. He and C started living together when they returned from their wedding in Texas. He resided in a townhouse with a roommate in Orleans before they were married. They moved into another residence in Orleans in 2009-2010. They then moved in with C’s parents in Orleans. They were there from the fall of 2010 to July 2012. They slept in a bedroom in the basement. Lastly, they lived in Russell from 2012-2020. CH was between 14 and 19 months old when they moved there.
When they moved to Russell, the Complainant’s bedroom was located on the second floor. He moved into the basement bedroom in 2017. CH converted to a double bed when he was about 4 years old. His bed was located in the middle of the bedroom with the headboard against the wall. At one point, there was a tent cover on CH’s bed. It was there until he was six or seven years old. When CH was four or five years old, he also had a swing that was hung in the corner of his bedroom, but it was removed in 2018. The Complainant slept in CH’s bedroom one or two times per month, on a Friday or Saturday. The Complainant slept on the furthest side from the door, closest to the window. CH’s bedroom was full of Legos and toys surrounding his bed. Due to the swing, there was limited space for someone to walk around the bed. CH woke up between 5:30 and 6:00 a.m., even on weekends.
In August 2016, N and the Complainant went to Kingston together. They stayed at a hotel with a pool and waterslide. They stayed in the same bedroom with two queen beds. During this trip, N did not climb onto the Complainant’s bed while he was sleeping. N did not look at or touch the Complainant’s genitals and N did not perform fellatio or put his mouth on the Complainant’s penis. N did not use his phone to look at the Complainant’s genitals and N did not go under the sheets to look at his genitals.
They decided to go to Toronto for CH’s birthday. He had asked to go to Toronto to do something fun for his birthday and they agreed. N found the apartment to rent on Airbnb. It was an open concept apartment with the bedrooms and the washroom to the right and the kitchen and living room on the left. One could see everything standing from the front door. CH and S shared the first bedroom with two single beds, the next door was the washroom, the Complainant and E shared the next bedroom with a double bed and C and N shared the last bedroom with a queen bed. Their bedroom was at the end.
On the morning of CH’s birthday, they went to the CN Tower. They had lunch there and then returned to the apartment. He asked the Complainant and E if he could go shopping with them because he wanted to go to Abercrombie and Fitch. They agreed and they went to the Eaton Centre. Once there, they went their separate ways, and he called the Complainant when he was done and met up with them near Roots. When he arrived, the Complainant and E looked like they had been arguing because E was visibly upset. He asked them if they wanted to keep shopping and the Complainant said “no”. They were considerably early to go to the restaurant therefore N decided to go buy cigarettes at a corner store. He saw there were ice sculptures and thought that it would help break the ice with the kids since they were not really speaking to each other. They agreed to go see the ice sculptures together. N asked E if she was okay, and she said “yes”. He then went to speak to the Complainant who said that he wanted to go to the restaurant. They arrived at the restaurant and were seated with the others. E and the Complainant left the table. E looked visibly upset and when they returned, she looked liked she had been crying. N made a point to tell C that E cries a lot. After dinner, they went to a cheesecake place and then returned to the apartment. CH went to bed after they arrived. The adults stayed up and about one hour later, C went to bed soon followed by E. Soon afterwards, the Complainant asked him if he had to buy cigarettes because the Complainant wanted to go buy a vape because when he drinks, he likes to vape. N responded to the Complainant that he had already bought his cigarettes and asked the Complainant asked him to go with him to find a corner store. They went out, bought a vape and returned to the apartment. N, S and the Complainant went to see if they could find a cross over floor to the other building and they were unsuccessful. The Complainant then went to see if they could go up a flight of stairs to get to the other building and it did not work. They went back to the condo and watched YouTube videos and played a couple of drinking games. N reminded S and the Complainant that he had to go to bed because he had to drive them back home. The Complainant advised that he would go to bed shortly, and S stayed up. N went to bed with C between 2:00 and 3:00 a.m. He wore boxers when he went to bed. N fell asleep. Next, he was lying in bed awake feeling nauseous. He tossed and turned trying to calm his breathing because he did not want to throw up and then his mouth would start to salivate. N realized he was going to throw up and ran out of the bedroom towards the washroom. He realized that he was not in the washroom and where he was. He fell to his knees with the palms of his hands on his face trying not to throw up on the floor. N focused on his breathing to catch his breath so that he could then get up and go to the washroom. He attempted to get up a couple of times but then went back on his hands and knees with his hands in his face focusing on his breathing. Once he was collected, he got up to go to the washroom and he dry heaved over the toilet before he threw up a couple of times. When N was throwing up, E went in and asked him what he was doing in their bedroom. N explained that he thought he was going to be sick, and he thought that their bedroom was the washroom. E asked him to give her his phone and he responded that he did not have it with him and that it was charging. E then left the washroom and went back to their bedroom. N freshened up and had a glass of water. He then knocked on the Complainant and E’s bedroom door. E answered and N asked her if she was okay. She responded that she wanted to see his phone. He agreed and went to his bedroom, grabbed his phone and put on sweatpants and a t-shirt. N’s telephone was charging on the bedside table next to the bed in his and C’s bedroom. C woke up and asked what was going on and he told her he was talking with E. C joined him. N offered to give E his phone and that she could go through it. E declined. She did not tell him why she wanted his phone, but he assumed it was because she thought he had taken photos. C went through N’s phone because he had explained to C that E was accusing him of being a creep, she had asked for his phone and E did not want to look through it. He told C to look through it and tell E what she found. C went through is phone. N explained to C that he walked into the Complainant and E’s bedroom thinking he was going to throw up and made his way to the washroom. He threw up and E was accusing him of being a creep and asked for his phone. E accused N of being a creep in front of C. E said that she wanted to see his phone because he had gone into their bedroom. E further said N had gone into their bedroom and she thought that N was playing a joke on the Complainant. She thought she saw the sheets move and that N just left and did not close the door. E could hear him throwing up in the washroom later on.
N was mistaken about which room was the washroom and the bedroom that the Complainant and E were sleeping in because the doors look the same and open in the same direction. It was also a new environment, and it was easy to make the mistake of opening one door instead of the other. In addition, he had been drinking and was not wide awake at that time.
That same day, he drove S, CH, the Complainant and E back home. C came home the following day.
N, C, the Complainant and E met at the kitchen table. The purpose of the meeting was to clarify what had gone on the previous day, February 17. C wanted to hear N’s version of events and E’s version to try to sort it out. N said that he woke up in the middle of the night and felt like he had to throw up. He ran out to the washroom and barged in only to realize he was in the Complainant and E’s bedroom. He was on his hands and knees with his hands on his face to try to calm down his breathing so that he would not throw up on the floor. E said that his version was incorrect, that N went into their bedroom and touched the Complainant. N was upset and told E she was lying.
When N was in the Complainant and E’s bedroom, he did not put his hands on their bed. He did not put his hands under the sheets towards the Complainant’s genitals. He did not touch the Complainant when he was in their bedroom.
When he lived in Orleans, he did not touch the Complainant’s genitals. He did not go into the Complainant’s bedroom and fondle him when he was asleep. N never made the Complainant touch N’s genitals when he was in Orleans. He did not put his hands on the Complainant when he was asleep. N did not enter CH’s bedroom and touch the Complainant’s genitals while he was sleeping. N did not rub the Complainant’s genitals when the latter was sleeping in CH’s bedroom. N did not go into the Complainant’s bedroom at night and put his hands under the latter’s covers while he was sleeping or while he was awake. N did not perform fellatio on the Complainant. N did not touch the Complainant’s genitals in their Russell home. N did not use his phone under the sheets to look at the Complainant’s genitals.
Similar Fact Application
11Before N elected to testify, the Crown filed an Application for similar fact evidence. The Crown seeks the use of count-to-count similar fact evidence to prove the actus reus of the sexual assault allegation from Toronto, and whether N’s anticipated blanket denial of the offences is credible. The predominant purpose is to show a pattern of similar behavior that supports each witnesses’ testimony and that it is unlikely that the conduct was the result of coincidence.
12More specifically, the Crown argues that this is a situation where the Complainant testified at trial, and he described a multitude of allegations or instances that N quietly entered his bedroom or his brother’s bedroom in middle of night and made his way to the bed where the Complainant slept. N then performed sexual acts on the Complainant while he was pretending to sleep. The vast majority of the allegations are of N using his hands to touch the Complainant’s penis. In the house in Russell, there are a few instances that the Complainant reported N’s actions took place in his brother’s bedroom while the latter was present. The Crown further submits that when considering the factors and the evidence heard from E regarding what she witnessed in Toronto (that N, in a similar fashion, entered the bedroom late at night where the Complainant went next to their bed and E saw a back-and-forth motion under the covers near the Complainant’s genital area. When there is a comparison of the events in Toronto as described by E and past occurrences as described by the Complainant, there is a persuasive connection between the incidents in Russell and the incident in Toronto. The nature and the circumstances of the acts relate to the nature of the offence and the sexual acts are essentially the same in nature, whereby N would go into a bedroom at night, sneak by the bed and perform sex acts. These acts occurred when the Complainant slept with his brother and in Toronto when he slept with his girlfriend.
13It is the Crown’s position that, given what was heard at trial, there is a strong improbability of coincidence that the Complainant’s testimony at trial regarding the alleged pattern in the Ottawa area is essentially the same as to what happened in Toronto. It cannot be a coincidence that N was sick and with regard to all other incidents, there is no explanation. The Crown is of the view this evidence ought to be admitted as it is probative to the case and the probative value of the evidence outweigh any prejudicial effect.
14N submits that the evidence of both the Complainant and E are not reliable or credible, and that there is an air of reality that the witnesses colluded either deliberately or unconsciously. The Complainant’s evidence was fraught with inconsistencies. In addition, the prejudicial effect of allowing the Crown’s count-to-count similar fact Application outweighs its probative value in this case.
15I now turn to the law regarding this issue. Evidence of acts, possessions, or reputation that go beyond disposition but that are probative of whether or not the accused committed the offence are admissible. Probative value is based largely on the degree of connectedness or nexus between the similar fact evidence and the offences alleged: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 76; R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at pp. 734-35; and R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, at para. 44.
16At para. 76 in Handy, the SCC stated, “the principal driver of probative value. . . is the connectedness (or nexus) that is established between the similar fact evidence and the offences charged”.
17In R. v. Johnson, 2011 ONSC 195, at para. 134, Justice Hill described the issue of coincidence as follows:
The cogency of the evidence, derived from the improbability of coincidence, increase as the fact situation moves further to the specific end of the spectrum – also described as an “observed pattern of propensity operating in a closely defined and circumscribed context”. Where the acts do not have the high degree of similarity that would render the likelihood of coincidence objectively improbable, the evidence will be inadmissible. [Citations omitted.]
In other words, the closer the circumstances of the similar acts resemble the circumstances under which the charged act was committed, the less likely the similarity can be explained by coincidence.
18In R. v. Handy, at para. 82, the court set out the following criteria when addressing whether the similar act evidence is appropriately connected to the facts alleged in the charge:
Factors connecting the similar facts to the circumstances set out in the charge include:
(1) proximity in time of the similar acts;
(2) extent to which the other acts are similar in detail to the charged conduct;
(3) number of occurrences of the similar acts;
(4) circumstances surrounding or relating to the similar acts;
(5) any distinctive feature(s) unifying the incidents;
(6) intervening events;
(7) any other factor which would tend to support or rebut the underlying unity of the similar acts. [Citations omitted.]
19Evidence of similar acts and of discreditable conduct by an accused is presumptively inadmissible. The Crown has the onus to satisfy this court on a balance of probabilities that in the context of this particular case, the probative value of the evidence in relation to a material fact in issue outweighs its prejudicial effect on the fairness of the trial and justifies its admission: see Handy, at para. 101.
20The probative value of the similar fact evidence tendered in this case depends upon two inferences from the evidence: (a) that N had the specific propensity to act in a particular way as described by the Crown and per the proposed evidence to be adduced and (b) whether he actually acted in conformity with this propensity at the time of the events alleged by the Complainant. The credibility and the reliability of the Complainant’s evidence was a central focus of the Defence in this trial.
21In Handy, the issue was the actus reus of the offence. The issue in this case also relates to the actus reus of the offence. Additionally, and similarly to Handy, the similar fact evidence will not be used for identification: “The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same”: Handy, at para. 78.
22I will review the factors listed in Handy as they apply in this case. With regard to proximity in time of the similar acts, the evidence supports that the events alleged in the three indictments are not proximate in time. The first event occurred when the Complainant was about eight years old. The incident in Toronto took place in 2020. However, the strength of the Crown’s evidence is not totally diminished by the passage of time between the events.
23The next factor deals with the extent to which the other acts are similar in detail to the charged conduct. The main issue with this factor in this case is that the acts form part of the charged conduct. The acts of N performing sexual acts on the Complainant while he was pretending to sleep and putting the Complainant’s hand on N’s penis forms part of the charged conduct. It cannot be said that these are facts that are distinct from the charge.
24As for the number of occurrences of the similar acts, it is unclear but from what I understood from the Crown’s position, there are two occurrences of the similar acts.
25Regarding the circumstances surrounding or relating to the similar acts, the feature leading up to the alleged incidents, that N went into the Complainant’s bedroom at night and either stood or crouched next to his bed, is not distinctive. As for intervening events, there were no intervening events in this case.
26Lastly, regarding the issue of collusion, the Defence argues that the witnesses either deliberately or unconsciously colluded since they both confirmed in their evidence at trial that they spoke about the incidents together. In addition, the Complainant also told his mother about a light being used in Russell. This led these witnesses to tailor their evidence. The Crown argues that there was no collusion. I do not find that there was any evidence of collusion in this trial.
27It is not necessary to continue this analysis any further because it is clear that the elements raised by the Crown as similar facts, are not similar facts. They are issues that form part of the charges. The fact that N snuck into the Complainant’s room late at night and was beside his bed in one fashion or another is not distinctive. Consequently, I find that the Crown has not met its onus and I deny the similar fact evidence Application.
Position of the Parties
28I turn to the position of the parties in this trial. They agree that the main issue in this matter is credibility.
29The Defence argues that the witnesses of the Crown were not credible witnesses and that their evidence should not be believed. Their evidence was not reliable. They were inconsistent in their evidence and they contradicted themselves and other evidence. On the other hand, N’s evidence was credible and reliable.
30The Crown argues that N was not a credible and reliable witness. N’s evidence had many issues. On the other hand, the Complainant, his girlfriend, and mother were forthright and honest in their evidence.
Caselaw
31I will start with a review of general principles and the applicable caselaw. During this trial, there were contradictory versions of events given by the Complainant, the other Crown witnesses, and N. Consequently, I must evaluate the evidence according to the instructions at page 738 of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742:
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.
32The court can accept all, part, or none of a witness’ evidence: see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25. Inconsistencies do not automatically lead the court to dismiss a witness’ evidence. Even if there are inconsistencies in the evidence, the court can accept the witness’ evidence beyond a reasonable doubt: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 65-66.
33Credibility and reliability are distinct. In R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 205, Doherty J. clarified the concept:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously, a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.
34The accused does not have the burden of showing that the complainant had a motive to fabricate evidence: see R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 48, 53.
35In the Court of Appeal’s decision in R. v. M. (A.W.), 1993 CarswellOnt 95 (C.A.), one of the grounds of appeal related to whether the trial judge failed to appreciate that he did not have an obligation to make a choice between believing the complainant or the appellant. The Court of Appeal concluded as follows, at para. 28:
Although a lack of motive to lay a false charge or give false evidence is a proper matter to be considered in determining the credibility of a person making the charge or giving the evidence, there is no burden on an accused to prove a motive or an explanation for a complainant making such a charge or giving such evidence. The reasons of the trial judge indicate that he was placing the burden on the appellant to prove that the complainant was attempting to falsely convict him, or in the words used in Nimchuk, supra, at p. 210, “framing him”. He erred in so doing (para. 28).
36In R. v. M.(J.) (26 February 2018), Cornwall, 3911-998-16-C1018, (Ont. C.J.), Kinsella J. found that a criminal trial is not a credibility contest between the accused and the complainant (para. 24).
37The case law confirms that while demeanour is a relevant factor in a credibility assessment, demeanour alone is an unreliable predictor of the accuracy of the evidence provided by a witness: see R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, paras. 85, 89. Furthermore, demeanour alone demeanor alone is a “notoriously unreliable predictor” of the accuracy of the evidence that a witness provides and is insufficient to convict when there are significant inconsistencies and conflicting evidence in the matter: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. S. (W.) (1994), 1994 7208 (ON CA), 90 C.C.C. (3d) 242, (Ont. C.A.), at p. 250.
38In R. v. Roy, 2017 ONCA 30, the Court of Appeal for Ontario found that it is clear “that a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a sufficient basis for rejecting an accused’s evidence”: at para. 23, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66; R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53.
39In R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, the Supreme Court again reviewed the testimony of child witnesses. McLachlin J. stated, at pp. 133-134, as follows:
The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.
It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
40In R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 9-20, the Court of Appeal summarized the governing principles when it reviews a decision of a trial judge. I summarize them as follows:
every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his/her mental development, understanding and ability to communicate;
there are no inflexible rules to mandate when a witness’s evidence should be evaluated according to “adult” or “child” standards;
despite the flexibility, when an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. If, however, there are inconsistencies especially on peripheral matters such as time and location, they should be considered in the context of her age at the time of the events about which she is testifying occurred;
in order to assess witness credibility, a trial judge should examine the consistency of what the witness said in the witness box and what she has said on other occasions whether or not she was under oath;
a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel;
prior consistent statements of a witness are not admissible for their truth;
do the trial judge’s reasons taken as a whole and considered with the evidentiary record, the submissions of counsel and the live issues at trial reveal the basis for the verdict reached;
where the case turns largely on determinations of credibility, the sufficiency of reasons must be considered in light of the deference generally afforded to trial judges on credibility findings; and
when evaluating a trial judge’s credibility analysis, there is no principled reason to distinguish between cases involving oath against oath from those in which no competing oath has been offered (at paras. 8-17).
41Furthermore, the Supreme Court reviewed the issue of stereotypical assumptions of how persons react to acts of sexual abuse in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 63 and 65, Major J. stated as follows:
The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
Assessment of the Evidence
42I turn to assess the witnesses’ evidence starting with the Complainant’s evidence. I find he gave his evidence in a forthright manner. He did not overstate or exaggerate the sexual assaults. At times, he was confused about the specifics regarding dates.
43The Defence argues that there are issues of reliability and credibility with the Complainant’s evidence. For example, the Complainant
guessed about what N was wearing;
could not remember how he was positioned on the bed;
did not mention the sleeping bag in Russell when speaking to Det. Hahn on February 20, 2020;
testified at the preliminary hearing that N uncovered him completely with the sleeping bag but then testified at trial that N put his hand in the sleeping bag;
testified that N sexually assaulted him more than once in his bedroom, but could not remember any specific incident; he told his mother that it happened twice and told the court it happened four to six times;
told police on February 20, 2020, that there were instances of fellatio in Russell, but testified at the preliminary hearing there was no fellatio in Russell and at trial that there were no such instances in Russell;
could not remember if the door was open or closed when N touched him in CH’s bedroom; and
there were discrepancies about whether or not N used a light.
44During cross-examination, I agree that the Complainant’s memory about certain issues like the sleeping bag and the light were unclear. It is true that the Complainant testified that N sexually assaulted him more than once in his bedroom but could not remember any specific incident and he told his mother that it happened twice and told the court it happened four to six times. However, I find that these inconsistent details are not fatal to his evidence. The fact that he guessed about what N was wearing, could not remember how he was positioned on the bed and could not remember if the door was open or closed when N touched him in CH’s bedroom do not impact his credibility. These issues are more peripheral in nature.
45I agree that there was an inconsistency in the Complainant’s evidence relating to whether or not there were instances of fellatio in Russell. On February 20, 2020, the Complainant told police that there were such instances, however, he testified at the preliminary hearing and the trial that there were no such events.
46Overall, I do not find that the Complainant was evasive during cross-examination and find that he was unshaken on the key elements of his evidence. His evidence was clear that the sexual assaults occurred. The Complainant was able to describe the areas where the sexual assaults occurred, details of what occurred, and how N sexually touched him, made him touch his penis and performed fellatio on him in Kingston. A complainant need not recall every minute detail of a sexual assault that, in itself, is a very traumatic event. Furthermore, the Complainant’s evidence is somewhat corroborated by the evidence of E and C.
47I find that the core of the Complainant’s evidence was unaffected in cross-examination and if there were any inconsistencies, they are not relevant to the core issues in this matter, with the exception of the issue related to whether or not fellatio took place in Russell. The Defence submits that the Complainant failed to provide sufficient details about the sexual assaults; he responded it was a “blur.” I find that he provided sufficient details as to how the sexual assaults took place.
48I note that the Complainant’s evidence regarding what took place after their return from Toronto was corroborated by E and his mother’s evidence.
49When I review the entirety of the Complainant’s evidence, I accept it and find it credible and reliable.
50I turn to E’s evidence. I find she gave her evidence in a forthright manner. She did not exaggerate the details of what she saw in Toronto. At times, E cried and was visibly upset. The Defence submits that E is not credible and reliable since there were inconsistencies in her testimony. For example, E
testified that the Complainant was naked under the bedsheets and he testified that he was wearing boxers;
told the Complainant and C that she saw a light under the covers and she believed it was from N’s phone but she could not remember the light at the trial; and
testified she clearly told C that she saw “attouchements sexuels” by N towards the Complainant and this was contradicted by C who testified that had she known about the specifics, she would never have stayed in Toronto.
51It is true that there were minor inconsistencies with regard to whether or not the Complainant was wearing boxers and whether a light was used by N. In addition, while it may be true that E thought she told C about the “attouchements sexuels” in Toronto after the incident, she was unsure about the sequence of events at times during her testimony.
52During cross-examination, E was heavily questioned about what exactly she saw when N entered their bedroom. She was unshaken that she saw movement under the sheets near the Complainant’s genitals.
53I find that the core of E’s evidence was unaffected in cross-examination and the inconsistencies raised by the Defence are not relevant to the core issues in this matter. I find that she provided sufficient details as to what occurred in Toronto and after their return to Russell. Her evidence regarding certain issues of what occurred in Toronto was also corroborated by C and with regard to what occurred after they returned from Toronto was corroborated by the Complainant and C. I accept E’s evidence and find that her evidence is a credible and reliable.
54I turn to C’s evidence. I find she gave her evidence in a forthright manner. At times, C cried and was visibly upset. C testified that she did not know about the facts surrounding N sexually touching the Complaint in Toronto. If she had known, she never would have stayed in Toronto overnight with her friend and would have gone home. Her evidence was that when she found out the specifics at their house in Russell when they all met together, she shortly afterwards had a discussion with her son to advise him that she had an obligation to report the matter to police. I do not question her evidence on this issue.
55Overall, I find that the core of C’s evidence was unaffected in cross-examination. I find that she provided sufficient details as to what occurred in Toronto and after their return to Russell. I accept C’s evidence and find that her evidence is a credible and reliable.
56I turn to N’s evidence. I find that he gave his evidence in a forthright manner. He was categorical about never having touched N in an inappropriate sexual way.
57The Defence argues that N was unshaken in cross-examination. I agree that most of his evidence was unshaken. However, I find it is improbable that he never touched the Complainant and E’s bed that evening. He testified how he threw himself on the ground when he entered the Complainant and E’s bedroom to try to stop himself from throwing up. He also said he tried to get up on a few occasions without success and dropped back down onto the floor. He was asked whether or not he had touched their bed during the multiple attempts at getting up a half foot away from the bed and responded that he had not. This is not believable.
58N was asked during cross-examination whether E appeared concerned when she asked him for his phone. N responded that she appeared more annoyed or “pissed off”. C testified that E was clearly distraught and then she had difficulty putting a full sentence together. Based on the overall evidence, I find that E was distraught rather than annoyed.
59I find that some of N’s evidence about what occurred in Toronto is questionable. This evidence related to important facts related to what occurred in that bedroom in Toronto. It makes me question the rest of his evidence that negatively impacts his credibility and reliability.
60I now turn to the three steps in W.(D.). First, based on my findings above, I question N’s evidence about what occurred between him and the Complainant. Second, based on my findings above, I question N’s testimony and I am not left in reasonable doubt by it. Third, based on my findings above, N’s evidence does not raise a reasonable doubt, and on the basis of the evidence that I accept, I am convinced beyond a reasonable doubt of N’s guilt with regard to all counts, specifically counts 1, 3, 5, 8, 11, 12, 13, 14 and 16. I do not accept N’s evidence about what occurred between him the Complainant. I find the evidence of the Complainant, E and C is credible and reliable and was more consistent. Much of their evidence corroborated what the other testified to regarding the events in Toronto. There is no evidence to support that there was collusion of any kind in this matter.
Findings
61With regard to the counts of sexual assault (s. 271 of the Code), the elements of the offence are as follows:
that the accused touched the complainant directly or indirectly;
that the touching by the accused was intentional;
that the touching by the accused took place in circumstances of a sexual nature;
that the complainant did not consent to the sexual activity in question; and
that the accused knew that complainant did not consent to the sexual activity in question.
62As for the counts of sexual interference (s. 151 of the Code), the elements of the offence are as follows:
that the complainant was less than sixteen years old at the time;
that the accused intentionally touched the complainant, either directly or indirectly; and
that the touching was for sexual purpose.
63I will separate the counts by location.
Orleans - Counts 1 and 12
64I find that there is sufficient evidence in support of these offences. While it may be true that the Complainant had some issues recollecting the exact dates of the sexual assaults, he cannot be faulted. These issues relate to a peripheral matter such as time and I have considered them in the context of the Complainant’s young age at the time of the events to which he testified. The evidence of C and N established that the family moved into the residence in Orleans at the end of the summer of 2009 and remained for one year.
65For both of these Counts, the Complainant testified that N used his hands to touch the Complainant’s penis. N also took the Complainant’s hand and put it on N’s penis. I accept this evidence.
Russell – Counts 3, 5, 8, 13 and 14
66I find that there is sufficient evidence in support of these offences. N and C testified that they moved into their house in Russel in July 2012. The Complainant testified that he was in Grade 6 and about 12 years old when they moved.
67Counts 3 and 13 relate to incidents in the Complainant’s bedroom. The Complainant testified that that N used his hands to touch the Complainant’s penis when he was sleeping in his bedroom in a sleeping bag.
68Counts 5 and 14 relate to incidents in CH’s bedroom. The Complainant testified that N touched the Complainant’s penis with his hands when he was sleeping next to his little brother in his brother’s bedroom. I accept this evidence.
Kingston – Counts 8 and 16
69I find that there is sufficient evidence in support of these offences. The Complainant testified that, when he was in Grade ten or eleven, he and N went to Kingston together for a weekend. They drank alcohol together when in the hotel room. C confirmed in her testimony that they went to Kingston in August 2016. The Complainant testified that N got onto his bed, touched the Complainant’s penis with his hands and put the latter’s penis inside of his mouth. I accept this evidence.
Toronto – Counts 11
70I find that there is sufficient evidence in support of this offence. Although the Complainant could not recall the exact date he and his family went to Toronto for the weekend of CH’s birthday trip, he recalled it was in 2020. C and E confirmed in their evidence that it was the long weekend in February for Family Day.
71The Complainant was sleeping during this incident. He was intoxicated. E witnessed N’s actions. She testified that she saw N kneel next to their bed and saw the bed sheets move back and forth near the Complainant’s genitals. I accept this evidence.
Conclusion
72Based on my findings regarding the overall evidence with regard to Counts 1, 3, 5, 8 and 11 as per s. 271 (sexual assault) of the Code, I find the Crown has proved beyond a reasonable doubt that N directly touched the Complainant’s penis, he did so intentionally, the touching was in circumstances of a sexual nature, given the Complainant’s age, he did not consent to the sexual activity in question and N knew the Complainant did not consent to the sexual activity.
73Based on my findings regarding the overall evidence with regard to Counts 12, 13, 14 and 16 as per s. 151 (sexual interference) of the Code, I find the Crown has proved beyond a reasonable doubt that the Complainant was less than sixteen years old at the time, N intentionally directly touched the Complainant’s penis, and the touching was for sexual purpose.
74I want to take a moment to comment on the fact the Complainant testified about how he felt confused and scared when N sexually assaulted him, especially when he was younger. It is noteworthy that the Complainant’s sexual integrity was clearly violated by N, who was in a position of trust as the Complainant’s stepfather.
75Overall, based on all of the evidence as a whole, I am convinced beyond a reasonable doubt that N is guilty on all Counts.
Justice M. O’Bonsawin
Released: August 9, 2022
COURT FILE NO.: CR-21-5
DATE: 2022/08/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
– and –
N.S.
reasons for decision
O’Bonsawin J.
Released: August 9, 2022