COURT FILE NO.: CR NJ(P) 152/22 DATE: 2023 08 29 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING S. Scully, for the Crown
– and –
N.B. Antal Bakaity, for the Accused
HEARD: May 8,9,10, 2023
REASONS FOR JUDGMENT
TZIMAS J.
Introduction
[1] The accused, Mr. N.B. is charged with, sexual assault, and exposing his genital organs to A.W., a person under the age of sixteen years, in the period between June 1 and July 31, 2018 contrary to sections 271 and 173(2) of the Criminal Code of Canada, (CCC), respectively. He is also charged with sexual assault and touching for a sexual purpose, on A.W. in the period between December 1 and 31, 2018, contrary to sections 271 and 151 of the CCC, respectively. All alleged occurrences are said to have taken place in the City of Mississauga, in the Central West Region. Mr. N.B. pleaded not guilty to all the charges.
[2] Mr. N.B. chose to testify and denied the allegations in their totality. The first two charges related to an alleged incident in the summer of 2018. Mr. N.B. said that what A.W. described could not have happened because there was no television in the bedroom where A.W. said she was located when she said Mr. N.B. exposed himself to her. She therefore would not have been in the room, as she said. For the last two charges, Mr. N.B. did not recall watching as a family the movie associated with the second alleged incident. The touching could therefore not have happened. In Mr. N.B.’s view, this represented a situation where a narrative that A.W. shared with her young friend got away from her, got out of control, and could not be walked back.
[3] Relying on the totality of the evidence, the Crown submitted that it proved beyond a reasonable doubt all of the offences against Mr. N.B. Crown counsel contended that A.W. was unshaken in her testimony and that much of what she said was corroborated by her mom. Insofar as the evidence of the two other Crown witnesses, may have raised concerns, sufficient to raise a reasonable doubt, the Crown argued that the Court could discount that evidence by concluding that one of the witnesses was simply mistaken and the other became emotional and misunderstood what he heard. That approach would enable the court to make findings against the defendant, beyond a reasonable doubt.
[4] In my review of the evidence in its totality, I did not find Mr. N.B. to be credible. Nor did his evidence leave me with reasonable doubt. Aspects of A.W.’s evidence were credible. The Crown witnesses, in their totality, did the best they could to answer the questions that were put to them. However, in doing so, certain contradictions and inconsistencies surfaced that could not be reconciled. I have concerns that “something bad” happened to A.W. but the evidence before me is insufficient to make any findings beyond a reasonable doubt. Accordingly, the charges against Mr. N.B. are dismissed. I find Mr. N.B. not guilty of all charges against him.
The Evidence
a. The Crown’s allegations
[5] The Court heard evidence from A.W., A.W.’s friend, A.B., A.W.’s father, Mr. W.W., and A.W.’s mother, Ms. K.M.
i. Evidence of A.W.
[6] A.W. is 14 years old and going into grade 9. She lives with her father on weekdays and her mother on weekends. On October 30, 2020, she gave a statement to the police and reported on two incidents involving Mr. N.B., that she said occurred in July of 2018. Mr. N.B. was her mother’s boyfriend at the time. At trial, she adopted her police statement with one critical variation. She said that the second incident occurred in December 2018 as opposed to July 2018. A.W. explained that she realized that the second incident would have had to be in December because it happened after she, together with her mom, her sisters and Mr. N.B. watched as a family The Christmas Chronicles.
[7] About the first incident, A.W. stated that one evening in the summer of 2018, she was watching television in her mother’s bedroom, when her mother’s boyfriend walked in. She did not pay any attention because she was used to being around him. He walked to the other side of the room, took off his clothes, including his underwear, got into bed, and kind of exposed himself to her. More specifically, she said that she felt him getting closer to her, she turned around, she saw his penis, she felt uncomfortable, and she got up and ran out of the room. During this time, her mother was out getting groceries. Two younger girls, “Ky” and “L”, who were at home, were playing games “outside”. A.W. thought that this incident happened around 9 pm, and that it was a weekend, because she stayed with her mom on weekends. She also thought it was during the summer.
[8] A.W. explained that the second incident occurred in the living room. She, the two other girls, her mom, and Mr. N.B. were watching television together in the living room. At some point during the evening, “Ky” and “L” went to bed and her mother went to the bathroom. A.W. was alone in the living room with Mr. N.B. In that moment, he reached out to her and grabbed or cupped her private area. She quickly got up and went away because she did not know what was happening. Her mother returned from the bathroom and nothing more happened. A.W. said she went to bed.
[9] In her police statement when asked about the time period between the two incidents, A.W. thought it was about two weeks. She recalled that she had two weeks of school, a whole bunch of dictations and tests and a whole lot of work to do. When school was done, she went to her mother’s place. She recalled watching The Christmas Chronicles with her siblings, “Ky” and “L”.
[10] A.W. also recalled her dad asking her if Mr. N.B. ever touched her, but she said no. She did not want to say anything to her father because her mother and Mr. N.B. would fight and have very intense arguments. She explained that she held everything inside her, until one day she and her best friend, “A”, were talking about bad things happening in their lives, and “it finally came out”. By “it”, A.W. was referring to the incidents. About a year following that conversation, her friend told her own mother about the conversation. The friend’s father then contacted A.W.’s father and reported what he learned. A.W.’s father and stepmother then went and got her from school and asked her about what happened. A.W. said her parents thought that Mr. N.B. raped her, but she explained that nothing like that ever happened and that “he never touched me like that”.
[11] Apart from the two incidents, A.W. said that she had been alone with Mr. N.B. on other occasions, but he never touched her the way he did on those two occasions. She recalled going to the movies together and watching Aquaman. She recalled that in 2019 her mother and Mr. N.B. had a really huge fight. She said she was scared, she was crying, and she did not know what was going on.
[12] In cross-examination, A.W. said that she remembered the outing to see Aquaman very fondly. She agreed that apart from the two alleged incidents, she did fun things with Mr. N.B., including going to the movies. When confronted with the suggestion that Aquaman was released in Canada on December 21, 2018, the implication being that she did not avoid Mr. N.B. after the alleged incidents as she said in her evidence in chief, A.W. disagreed. She said she was certain that she went to see Aquaman before the alleged incidents.
[13] Speaking of the second incident, A.W. said that she wanted to correct the timing of its occurrence. She acknowledged that in her statement to the police she thought the second incident happened within weeks of the first one. However, A.W. explained that having watched her police video statement in preparation for trial, she verified the release date of The Christmas Chronicles on Netflix and realised that the movie was released in November 2018. As she reflected on that information, since the incident happened immediately following the viewing of the movie, A.W. concluded that the second incident would have occurred soon after The Christmas Chronicles was released, and therefore sometime in December 2018, and not earlier, as she originally thought. She agreed that four and a half years had passed from the dates of the incidents and that she had not said anything to correct her evidence on the timing of the second incident until the trial.
[14] A.W. also provided a detailed description of the bedroom. When asked if she was certain about there being a television in the room or whether she was watching something on a different device, A.W. was adamant that she was watching television. In her diagram of the bedroom, she identified the location of the television.
[15] As to the particulars of how the first incident unfolded, she elaborated on how Mr. N.B. grabbed her while she was on the bed and while he was naked. She said she “repelled” her body away from him and towards the edge of the bed and left the room. Other than grabbing her arm, Mr. N.B. did not touch any other part of her body. She thought that the whole incident did not last more than 5 minutes. She could not remember where she went when she left the room.
[16] A.W. confirmed that she did not say anything to her mom or her dad about the incidents. She could not explain why she did not say anything to either of her parents, although she indicated that her mother yelled a lot at the time. Regarding her conversation with her friend, she recalled that she was at her friend’s place with her father and stepmom for Taco Night. At some point, she and her friend were having a conversation about school and “bad stuff that happened to us”. A.W. told her friend about the first incident and specifically about how Mr. N.B. came onto the bed and grabbed her arm. She said she left out the part about leaving the room. A.W. did not say anything to her friend about the second incident. A.W. did not provide her friend with any other details, and she could not recall her friend’s reaction to what she heard.
[17] A.W. also recounted her exchange with her father and stepmother after they learned from her friend’s mother about the allegation. Her father asked her specifically if Mr. N.B. “raped” her and she denied it. A.W. said she told her dad that Mr. N.B. exposed his genitals in the first incident and touched her private parts in the second incident. Their conversation lasted 30 minutes. During this time, she was scared and she was crying. She said she also felt under pressure because both her father and stepmother were yelling at her. They were concerned and they wanted to know what happened.
ii. Evidence of Mr. W.W.
[18] Next, the court heard from A.W.’s father, Mr. W.W. He confirmed that A.W. lived with him on weekdays and went to her mom on weekends. He said that he was aware of Mr. N.B.’s presence at A.W.’s mother’s place but he never met him outside of the court proceedings. Sometimes when he dropped off A.W. he would see Mr. N.B. in the background. When asked to think back to 2018/2019 and to reflect on any changes in A.W.’s behaviour, he said that nothing stood out. Then, when prompted to focus on A.W.’s behaviour at the time of the pick-ups from her mom’s place, Mr. W.W. said that A.W. would cry and say that she was concerned for her mother’s safety.
[19] Mr. W.W. and his wife then had further conversations with A.W. about what she was feeling. A.W. revealed that there were fights between her mom and Mr. N.B. In response he told A.W. she did not have to go to her mom’s place on weekends if she did not want to do so. He also reached out to A.W.’s mom and advised her of the situation. He told her that A.W. wanted to stay with him on weekends and her mom agreed. As a result, A.W. spent quite a few weekends with him and his family.
[20] Mr. W.W. asked A.W. about her relationship with Mr. N.B. She told him that they went out together to do a couple of activities. He asked A.W. if everything was alright between her and Mr. N.B. He did not ask specifically about anything sexual happening between the two of them but as a father, he wanted to know that everything was fine with his daughter. She said everything was ok. He told her that if anything were to happen, she had to know that she could come to him and his wife. Mr. W.W. said he was not aware that the relationship between A.W.’s mom and Mr. N.B. came to an end at some point.
[21] Mr. W.W. was asked to discuss his family’s relationship with the B family. He said they knew each other from the church they attended in Caledon. They would see each other at church and they had dinner on three or four occasions outside of church activities, either at their own place or at the Bs’ place. A.W. and A.B. were about the same age and they really got along.
[22] Thinking back to the September 1, 2020 dinner, when A.W. first spoke to her friend about the incidents, Mr. W.W. recalled that they went to dinner at the Bs’ place. He said it was a typical family dinner. When they finished eating, the children went off to play. The younger children went their way, and the two girls were together.
[23] At some point following that dinner, he got a call from A.B.’s father who called to say that he wanted to tell him something that he heard from his wife and daughter. He then told him that A.W. confided in his daughter that Mr. N.B. assaulted her. Mr. W.W. said he was very upset and found it hard to grasp. He called his wife immediately, they spoke, and then he contacted A.W.’s mom to find out if she knew anything about any incident. A.W.’s mom said the allegation could not be true, but in the same conversation she acknowledged that if there were something to it, that was not good.
[24] Mr. W.W. and his wife then went to A.W.’s school, took her out of her classes, and asked her what happened. They brought her home and told her they understood that she shared some information with her friend, and they asked her if she cared to share that with them. There was some “back and forth”, A.W. started crying and through the crying she shared bits of information and told them she “felt” Mr. N.B assaulted her. The “back and forth” referred to them telling A.W. that she did not have to be scared and that she could share with them what she shared with her friend.
[25] Regarding the tone of the whole conversation, Mr. W.W. agreed that he was very upset and that he did not know what to do. As a father he said he hoped to have done everything he could to protect his children. In that moment, what he learned was very hard to swallow or to accept that what he was learning had happened to his daughter. As to the tone of his voice, he said he tried to hide his emotions. He said he tried to be loving and to calm his daughter down. He said they got what they wanted to hear but it was not a good conversation to have. By “getting what we wanted to hear”, Mr. W.W. explained that he meant that his daughter told them what she told her friend. She also told them that she did not say anything to them because she was not comfortable; she did not want to get into trouble with them or with her mom.
[26] Mr. W.W. said that A.W. told him about the occurrences. On the first occasion, she said that Mr. N.B. exposed himself to her and that she ran away from the room. On the second occasion, Mr. N.B. took her swimming and at some point, he put her hands on her legs and she felt uncomfortable.
[27] In cross-examination, Mr. W.W.’s attention was brought to his police statement where he said that when his daughter came out of the pool Mr. N.B. pressed his legs on her legs and that caused her to be uncomfortable. Mr. W.W. adopted the evidence in his police statement and agreed that the description he gave was more accurate because it would have been closer to the events.
[28] Following his conversation with his daughter, Mr. W.W. went to the police. They arranged for A.W. and her mother to give statements, and they did so on October 30, 2020. Although A.W. was not feeling comfortable talking to the police, Mr. W.W. noticed that his daughter’s behaviour changed after the police visit; she seemed happier.
iii. Evidence of A.B.
[29] Next, the court heard from A.W.’s friend, A.B. She agreed that they met in church and that they were friends for about 4 years. They played games and their families would meet-up for dinner. She thought they saw each other at least once a week. At the time of her testimony in court, A.B. said they were no longer getting together once a week. With the COVID emergency measures in place, their families would see each other once every two weeks.
[30] Turning to her conversation with A.W., A.B. said that her friend told her “that something happened to her”. A.B. was not sure what it was that A.W. said. She explained that the conversation happened three or four years ago, and therefore, she was not sure. She agreed that the two families had gotten together for dinner and that the specific conversation took place after dinner. She recalled that she and A.W. were in her room after dinner. A.W. told her that her mother was going to be having another baby and that her boyfriend would be staying with them until the baby came.
[31] A.W. also told her about her mother’s boyfriend coming into the room, that he did not have any clothes, and that he raped A.W. A.B. thought that A.W. used the word “rape” but she was not one hundred per cent certain. A.W. did not offer any details, and A.B. did not ask any questions. She agreed that when A.W. said she was “raped” it was more than one sentence, but she could not recall any other details. She also did not recall hearing about more than one incident. She thought the whole discussion was not more than 5-10 minutes. A.W. also asked her not to say anything to their friends at school. A.W. said she told others at school but she did not identify them.
[32] A.B. said that A.W. was emotional when she described what happened. She said it looked like she wanted to cry. A.B. denied that A.W.’s revelation to her was in the context of a conversation about bad things happening to both of them. When asked if it was possible that such a conversation occurred, A.B. said she was not sure but said maybe, and nodded her head in a positive manner.
[33] A.B. was asked her reaction to what A.W. shared with her. She said she was not expecting to hear something like that. She did not say anything to anyone about the conversation until about a year later or so, when she told her mom. At that time, the teachers at school were talking about sexual abuse and those presentations made her think back to her conversation with A.W. and what she told her and she decided to talk to her mom about it.
[34] A.B. did not give a statement to the police until several months following the reporting to the police by the W family. In other words, she gave the statement on April 25, 2021. She did not speak to A.W. prior to her statement to the police and nobody spoke to her about it either.
iv. Evidence of Ms. K.M.
[35] Ms. K.M. is A.W.’s mom. She explained that in addition to A.W. she had three other daughters, “Ky” who was 8, “Ka” who was 3, and “Am” who was 19 months. Ms. K.M. met Mr. N.B. in 2012 and they became romantically involved. They started living together in 2013. The relationship ended in late 2018 but Mr. N.B remained at the same residence until May 2019 because he could not find a place to stay. At the time of the alleged incidents, A.W. lived primarily with her dad but she would stay with her mom on weekends. Ky lived with her full-time and Mr. N.B.’s daughter from another relationship, “L”, would also come on weekends.
[36] Ms. K.M described the layout of the apartment where they lived. She said there were two bedrooms and an open-concept living and dining area. One bedroom was used by A.W., L, and Ky. She and Mr. N.B. used the other bedroom. Ms. K.M. said that there was a television in her bedroom, right by the door and on a dresser. The bed was on the left side against the wall and the dresser was against the other wall. She confirmed that the children were permitted to watch television in her bedroom. She also agreed that there was another television in the living room and that they would all watch television and movies on the couch, which was a sectional. She denied that she ever gave the television in her bedroom to her father.
[37] Regarding the grocery shopping in 2018, she agreed that it was mostly she who did the groceries. She did not have a particular routine. She would go by herself and the girls would stay home. She thought it would take her about an hour to do the shopping but she was not certain.
[38] When asked about watching The Christmas Chronicles, she said she knew the movie and thought she saw it twice. She recalled that the first time she saw it, it was in her living room together with Mr. N.W. and the three girls. She recalled L and Ky falling asleep and Mr. N.B. putting them to bed; A.W. remained awake.
[39] Ms. K.M. was asked if she noticed any changes in A.W.’s behaviour in and around 2018 or 2019. She said she did not. When asked if in that period she noticed anything different in A.W.’s interaction with Mr. N.B., she said that A.W. would not go with him but she stayed mostly with her. Prior to 2019, A.W. spent most of the time with Mr. N.B., together with L and Ky. Ms. K.M. agreed that there was one occasion when A.W. went alone with Mr. N.B. to the movies.
[40] Ms. K.M. confirmed that there was a lot of fighting in the home between herself and Mr. N.B. She said that A.W. would report back to her own dad about the situation and her dad kept her back. The fighting started in 2014 and continued until they broke-up in 2018.
[41] Ms. K.M. described how she learned of A.W.’s allegations against Mr. N.B. She said that Mr. W.W. told her about them, and she was shocked. She said she trusted Mr. N.B. She agreed that A.W. never told her anything about the allegations. She recalled however that when she told A.W. that Mr. N.B. was no longer living with them she said, “Thank God he is gone.” Ms. K.M. expressed surprise at that comment and told her daughter, she thought she liked him. A.W. responded that she did not like him. Ms. K.M. did not follow-up with any other questions to understand why A.W. felt that way. In cross-examination, Ms. K.M attributed the relief to the fact that there were fights all along. Her daughter was therefore relieved by Mr. N.B.’s departure. Ms. K.M. also confirmed that she never saw A.W. being withdrawn around Mr. N.B.
b. Defence Evidence
i. Mr. N.B.’s evidence
[42] Mr. N.B. testified in his defence. He denied the allegations in their totality. He had no recollection of ever seeing A.W. in his bedroom, especially when he was disrobing. He never intentionally exposed himself to A.W. and he never touched her in a sexual manner.
[43] He is 40 years old. He verified that in the period between 2014 and 2018, he would have his daughter L every other weekend. He said that when he had all three girls they would go to the park, the gym, and generally he would bring them with him. He said his relationship with A.W. was very close. The last time he saw A.W. was a few weeks before he was “evicted”. He thought that he and A.W. went to the movies in 2019, either at the end of January or the beginning of February. Apart from that outing, he did not recall going anywhere with A.W. on her own. He added that typically, he would not be alone with A.W.
[44] On the subject of televisions in the home, he agreed that there was a large television in the living room. However, he said that in 2017 Ms. K.M. gave the television located in their bedroom to her own father.
[45] Regarding movie nights at home or whether they would watch television together, Mr. N.B. said he found that to be very challenging to answer. He said that the children were to watch television whenever they wanted. Although he agreed that the younger children, L and Ky would fall asleep while they watched television, he could not recall any instance when he would have moved them to their bedroom.
[46] Mr. N.B. could not recall watching The Christmas Chronicles with Ms. K.M. and the girls. He thought he may have watched the movie while he was in Montreal on a business trip. When pressed on whether he would have seen the movie at home, he said that could have occurred, but he could not recall.
c. Agreed Facts
[47] The parties agreed that the movie Aquaman was released on December 21, 2018. They also agreed that The Christmas Chronicles was released on Netflix on November 22, 2018.
Position of the Parties
[48] As noted in my summary of the relevant evidence, Mr. N.B. denied the allegations in their totality. In closing submissions, his counsel highlighted four different versions of the allegations. He described A.W.’s evidence as cavalier. He said there were internal inconsistencies and none of the witnesses were able to corroborate her story. Moreover, the timeframe of when the incidents would have occurred seemed to be totally off. In short, the allegations reported to the police were the result of a fib that got totally out of control and that A.W. could not walk them back.
[49] The Crown disagreed. As a preliminary step, relying on s. 601 of the Criminal Code, counsel amended the dates related to charges 3 and 4 to December 1 – 31, 2018. In counsel’s view, A.W.’s evidence was unshaken. There were no internal inconsistencies. The only inconsistency related to the date when the 2nd incident was said to have occurred. A.W. corrected that date once she realized that the 2nd incident happened after they watched The Christmas Chronicles. In counsel’s view what remained consistent in the narrative was the timing of the incident, relative to the viewing of the movie.
[50] Having regard for the recognized frailties in the evidence that children give, what stood out in A.W.’s memory was watching the movie. Counsel submitted that A.W.’s memory of what occurred was consistent with the Supreme Court of Canada’s observations in R v. B. (G.), [1990] 2 S.C.R. 30, at para. 48, where the court noted that while children may not be able to recount precise details and communicate “the when” and the “where” of an event, that did not mean that they would have misconceived what happened to them. In light of that, counsel invited the court to take a common sense approach to A.W.’s testimony and that any flaws should be understood in the context of A.W. being a child.
[51] With respect to the evidence of the other witnesses, counsel suggested that A.B. was sincere, but she was mistaken in her recollection. She could not be faulted for that given the following timeline: disclosure by A.W. in 2019, conversation with her mother a year later, and her statement to the police about a year after that. She may have conflated a naked man in a bedroom with the term rape. Counsel agreed that the court could have reliability concerns with Ms. A.B.’s testimony.
[52] With respect to Mr. W.W.’s testimony, Crown counsel submitted that he was very upset. Given his emotional state, it would be entirely possible for him to have misunderstood what A.W. told him. His misunderstanding could not be relied upon to find inconsistencies in A.W.’s evidence.
[53] Counsel pointed to Ms. K.M.’s evidence and highlighted seven points of collaboration. Ms. K.M. went shopping for groceries alone, just as A.W. said she did. Both Ms. K.M. and A.W. placed the television in the same place in the bedroom. The children were permitted to watch television in Ms. K.M.’s bedroom. They watched The Christmas Chronicles together as a family. Both A.W. and Ms. K.M. recalled the two younger children falling asleep during the movie. In contrast to Ms. K.M.’s evidence, counsel invited the court to reject Mr. N.B.’s evidence as “self-serving” and designed to undermine A.W.’s evidence. His evidence on whether or not he saw The Christmas Chronicles was evasive and suggested a clear attempt to avoid answering questions by pretending not to remember.
Applicable Legal Principles
a) Presumption of Innocence
[54] Mr. N.B., like all people charged with a criminal offence in this country, is presumed innocent. The burden of proof is on the Crown, which means that it is for the Crown to prove beyond a reasonable doubt that Mr. N.B. is guilty of the offences with which he is charged. There is no onus on Mr. N.B. to prove anything.
[55] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. Ultimately, I may find Mr. N.B. guilty only if I am sure that he committed the alleged offences with which he is charged.
b) W. (D.) Requirements
[56] Although he was not required to, Mr. N.B. chose to testify. His version of the two incidents was different from what A.W. described. Such a difference does not set up a credibility contest. In other words, I am not to choose between the two versions. To do so would amount to a reversal of the burden of proof. What is required in my assessment of whether the Crown has proven Mr. N.B.’s guilt beyond a reasonable doubt, is to apply the principles set out by the Supreme Court of Canada in R. v. W.(D), [1997] 3 S.C.R. 320 as follows:
i. If I accept Mr. N.B.’s evidence that he did not commit the offences with which he is charged, I must acquit. ii. Even if I do not accept Mr. N.B.’s evidence that he did not commit the offences with which he is charged, if it leaves me with a reasonable doubt, I must acquit. iii. If after careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit Mr. N.B.: R v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) iv. Finally, even if I am not left with a reasonable doubt by Mr. N.B.’s evidence, I must ask whether, on the evidence that I do accept, I am persuaded beyond a reasonable doubt of Mr. N.B.’s guilt.
This analysis applies to each charge separately.
[57] Given Mr. N.B.’s complete denial of the incidents it is helpful to remember that an accused person is not entitled to an acquittal simply because his evidence does not raise any obvious problems. As noted in R v. G.C., 2021 ONCA 441, at para. 15, the accused’s evidence may be rejected “based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” which may provide “as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence”: R v. J.J.R.D. (2006), 218 O.A.C. 37 (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69”.
c) The Charges
[58] As noted in the opening paragraphs of this decision, Mr. N.B. is charged with four offences: two counts of sexual assault, (s. 271 of the CCC), one count of exposure of his genital organs for a sexual purpose, (s. 173(2) of the CCC), and one count of touching for a sexual purpose a person under the age of sixteen years (s. 151 of the CCC). The Crown must prove the element of each of these offences beyond a reasonable doubt.
[59] The sexual assault and sexual interference charges engage the following elements: an intentional touching by the defendant, directly or indirectly, in circumstances of a sexual nature. Given A.W.’s age, consent for the s. 271 charges would not be an issue. Section 173(2) engages the intentional exposure of his or her genital organ to a person who is under the age of 16 years for a sexual purpose.
d) Credibility Assessment
[60] My findings on the elements for each of the offences and the proposed defence turn on an assessment of the credibility and reliability of the evidence before me. Credibility and reliability are different concepts. Credibility considers the sincerity and honesty and whether a witness testified as to what he or she believes. Reliability considers whether what the witnesses said was accurate, often decided on the basis of a witness’s ability to observe, recall and recount events as they occurred: R. v. G.F., 2021 SCC 20, at para. 82.
[61] In my assessment of the evidence, it is important to remind myself of the imperative to avoid any assumptions and stereotypes as to how alleged victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124. Credibility findings are not to be made on the basis of my own understanding of “common sense and logic” as this may mask improper reliance on prejudicial generalizations. I also recognize the need to be cautious about reliance on the witnesses’ demeanour when they testified.
[62] It is also important to remember that the complainant, as well as one of the witnesses, were children. As noted in both R v. B.(G), supra., and R v. R.W., [1992] 2 S.C.R. 122 at paras. 23 – 30, “children may experience the world differently from adults”. It would be hardly surprising that details important to adults, like time and place, may be missing from the memories of children. A flaw in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. Rather, a common sense approach should be taken when dealing with young children’s testimony, rather than impose the exacting standard that one would apply to adult testimony.
Analysis
[63] I will proceed to summarize my findings respecting the credibility and reliability of Mr. N.B., and then the Crown witnesses.
a) Credibility of Mr. N.B.
[64] In my review of Mr. N.B.’s evidence, I did not find him to be credible. Mr. N.B. was clearly uncomfortable with his testimony. Although some of his answers might be attributed to being nervous on the stand, he was clearly trying to distance himself from anything that might put him in the same space as A.W. relative to the two specific incidents. Mr. N.B.’s evidence that the television was gifted to Ms. K.M.’s father in 2017 was clearly designed to remove A.W. from the bedroom. A.W. could not have been in the bedroom because there would have been no television for her to watch. I found it curious that he would remember such a particular detail when there were many other details that he could not remember.
[65] Mr. N.B.’s inability to remember that he would have moved his daughters to their bedroom in instances when they may have fallen asleep on a couch while watching television was designed to be evasive and to put a distance between himself and any suggestion that he may have remained in the room alone with A.W. I found it quite curious that Mr. N.B. would be so combative at a common sense suggestion that he might move his daughters to their beds if they were to fall asleep in front of a television. Especially in light of his own evidence that he spent significant time with all three girls, playing with them and taking care of them, putting them to bed would be something that was consistent with caring for them. His denial that he ever did that, followed by the suggestion that he could not remember, stood out as highly suspect.
[66] Mr. N.B.’s evidence about whether and when he may have viewed The Christmas Chronicles was also curious. Had he limited his evidence to not remembering the movie, he may have maintained some credibility. After all, given his evidence that the children watched a fair bit of television and that they did watch movies as a family, it would not necessarily have surprised me if he could not remember a particular movie. What stood out for me was the suggestion that he would have watched the movie, by himself in a Montreal hotel room, while on a business trip. That explanation was not credible. Rather, it revealed a blatant attempt to expunge A.W.’s narrative around the alleged second incident. Given Mr. N.B.’s primary evidence that he never touched A.W. as alleged, I am not sure why he had to go so much further and say that they never saw the movie as a family. I can only reconcile that with an explanation that Mr. N.B. was desperate to distance himself from the allegations.
[67] For these reasons, I neither believe Mr. N.B. nor am I left with reasonable doubt by his evidence.
b) Credibility of Crown witnesses
[68] I turn to the evidence led by the Crown. Beginning with A.W., as a young fourteen-year-old, A.W. was very bright, serious, and articulate in her testimony. She spoke with poise and answered the questions that were put to her with confidence. I accept the Crown’s submission that A.W.’s mother corroborated parts of A.W.’s narrative. Significantly, confirmation of Ms. K.M.’s shopping habits, the location of the television in the adults’ bedroom, and the family viewing in the living room corroborated the prospects that A.W. would have been alone in the apartment with Mr. N.B., just as she described.
[69] I am also not troubled by A.W.’s difficulties with the suggested chronology of the incidents and the relationship between the viewing of The Christmas Chronicles relative to the alleged touching of the 2nd incident. A.W.’s association of the alleged second incident with the viewing of The Christmas Chronicles is consistent with the cautions and observations outlined by the SCC in B(G) and in (R.W.).
[70] There however are certain inconsistencies in A.W.’s evidence that are troubling and that raise some doubt. First, with respect to the description of the first incident, as between the statement to the police and the testimony in court, there were some inconsistencies that I could not reconcile. In her police statement, A.W. did not say anything about being grabbed by the hand, her body being rotated and then her pushing back or repelling away from him. She said she left the room when she saw Mr. N.B. naked and coming towards her. In court, A.W. gave a far more dramatic account. That in and of itself leaves me with reasonable doubt over the first charge of sexual assault.
[71] A related concern rests with A.W.’s evidence that the two younger step sisters would have been awake “outside” while Mr. N.B. was exposing himself to A.W. To begin with, given A.W.’s evidence that the incident would have taken place around 9 p.m., I took A.W.’s evidence of “outside” to mean in another room of the home, as opposed to outdoors. Given the children’s very young age, the children would not have been outdoors with one parent gone shopping, the other parent going to bed, and A.W. who was almost 10 at the time, being indoors. But even if on account of the evidence being from a child I were to discount some of A.W.’s evidence about where her step sisters would have been located, I find it hard to believe that Mr. N.B. would make any kind of sexual advances toward A.W. with the prospect that A.W. might call out to the sisters or that independent of any reaction by A.W., the sisters could walk into the room.
[72] I also find it odd that with one parent out of the house and three children awake, all three being under the age of 10, Mr. N.B. would be going to bed, leaving the children effectively unattended. Here too, while I appreciate that a child’s perception of what was going on might not rise to the level of what an adult might see or appreciate, something does not add up. This flaw, on its own, would not make a serious difference in my overall assessment but considered cumulatively it contributes to some doubt.
[73] More significantly, A.W.’s evidence that following the incidents, she distanced herself from Mr. N.B. is not borne out by the chronology of events. A.W. was adamant that she and Mr. N.B. went to the movies together to see Aquaman. She insisted that this outing occurred before the two incidents. But on parties’ Agreed Statement of Facts, Aquaman was released on December 21, 2018. Arguably, A.W. and Mr. N.B. could have watched the movie between the occurrence of the two incidents. This prospect was not explored in A.W.’s cross-examination and accordingly, I am cautious with such a theory. I also reinstruct myself on how children may confuse specific chronologies.
[74] That said, much like A.W. spoke of the timing of the second incident with reference to The Christmas Chronicles as her reference point, she also sought to rely on the viewing of Aquaman with reference to when the incidents occurred. While I can understand how a child might associate one activity with another to tell their story, and indeed, Crown counsel sought to leverage that association in relation to the timing of the second incident with reference to the release of The Christmas Chronicles, that same leveraging with reference to the viewing of Aquaman undermines A.W.’s narrative.
[75] Contrary to A.W.’s contention that the incidents occurred after the viewing of Aquaman, at least with respect to the first incident, that simply could not have been the case. The first incident was said to have occurred in July 2018 and the movie was released on December 21, 2018. Even if there were scope for a finding that the viewing of Aquaman occurred between the first and the second alleged incident, I cannot reconcile that with A.W.’s evidence that she distanced herself from Mr. N.B. after the incidents.
[76] My reservation lines up with Ms. K.M.’s evidence that in and around 2018 or 2019 she did not notice changes to A.W.’s behaviour. When pressed on whether she observed any changes to A.W.’s interaction with Mr. N.B. Ms. K.M. was more tentative and said she would not go with him and that “she would mostly stay with me”. However, she also agreed that prior to 2019 A.W. spent time alone with Mr. N.B., though Ky and L were also there. I should add that Ms. K.M. was a credible witness. She was forthright with the court and gave her evidence in a full and frank manner. She was neither evasive nor tried to make any excuses.
[77] Ms. K.M.’s evidence compounded my doubt over when A.W. would have distanced herself from Mr. N.B. There seemed to be agreement that by sometime in 2019, A.W. would have stopped seeing Mr. N.B. However, the evidence on her own deliberate attempts to distance herself from Mr. N.B. was not clear.
[78] Insofar as Crown counsel invited the court to find that A.B. was mistaken in what she heard from A.W. or that Mr. W.W. was emotional and may have misunderstood his daughter’s description of the second incident, I have the following concerns. Beginning with A.B., she was brave to come forward and to testify in such a difficult situation. The reality is that given the girls’ age at the time of the disclosure to each other, the silence then for about a year, followed by a teacher’s presentation in school about sexual abuse, there were numerous opportunities for misunderstandings or compromised recollections. The evidence before me is insufficient to either find or dismiss A.B.’s evidence as being mistaken. What is certain is that whatever A.W. told A.B. in 2019, A.B. eventually translated that into “rape”, given that this was what A.B.’s father reported to A.W.’s father.
[79] Which brings me to Mr. W.W.’s evidence. Mr. W.W. testified in a matter of fact and forthright manner. He was neither evasive nor emotional in his answers. He came across as a caring parent, but he did not demonstrate any animus towards the defendant. I am therefore not prepared to dismiss the evidence that raised certain doubts as a misunderstanding. I am specifically not prepared to find that Mr. W.W.’s understanding that the second incident happened at the pool amounted to a misunderstanding of what his daughter said to him. That evidence is problematic in that it reports on an incident but one with very different facts. That only compounds my reservations over what occurred between Mr. N.B. and A.W.
[80] That said, I do have concerns that the manner in which Mr. W.W. confronted A.W. about what he heard about her interaction with Mr. N.B. made matters worse for everyone involved. As between Mr. W.W.’s description of his conversation with A.W., and specifically the indication that he tried to be a loving father but that he got “what we wanted to hear”, and A.W.’s evidence that the conversation was “super loud”, that her father and stepmom were yelling at her, that she was scared, was crying, and that she felt under pressure, I have real concerns that A.W. did not have the opportunity to have a candid and honest conversation with her parents.
[81] The defence sought to capitalize on this exchange to argue that A.W.’s “fib” got out of control and that A.W. could not walk it back. My concern, on the evidence before me, is that A.W.’s narrative likely did not start with a fib. It is possible that it started with “something bad happening” to her, as she said to her friend. I am concerned that as a young ten-year-old, she did not feel she could disclose the “something bad happening” to her parents. Then, when her experience was out in the open, she felt all the more scared and under pressure. That experience on its own, as she described it in her evidence, dealt a serious blow to the reliability over what she eventually disclosed to the police.
[82] The difficulty I face is that against the various sources of doubt, the evidence before me is insufficient and unreliable to enable me to make findings beyond a reasonable doubt that would effectively prove the elements of each offence charged beyond a reasonable doubt.
[83] With reference specifically to the two incidents, for the first one, I cannot be certain that it occurred at all. I do not know who to believe as between Mr. N.B. and A.W. With reference to the second incident, the contradictory evidence on whether the touching occurred in the living room or at a pool and how that evidence may have been tainted by the exchange that occurred between A.W. and her parents leaves me with reasonable doubt over what occurred.
[84] When I turn my mind specifically to the W(D) analysis, I conclude as follows. For the reasons discussed, I did not believe Mr. N.B. Nor did his evidence leave me with any doubt. I believed parts of A.W.’s evidence and I am not prepared to make a finding that she lied. However, given my concerns with the evidence and the unanswered questions, I am unable to say what happened. In these circumstances, the Crown has failed to meet its burden of proving beyond a reasonable doubt the charges against Mr. N.B.
CONCLUSION
[85] In light of the foregoing, Mr. N.B. is found not guilty of the charges against him.