COURT FILE NO.: CR-23-50000210-0000 DATE: 20240514

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – C.N.B.

Counsel: Kelly Simpson, for the Crown Juan Lopez, for the accused

HEARD: April 16, 17, 18, 22, 2024

REASONS FOR JUDGMENT

(Subject to a publication ban that applies to any information that might identify the complainant or a witness, pursuant to section 486.4 of the Criminal Code)

VERMETTE J.

[1] The accused, C.N.B., is charged with the following counts in relation to his minor daughter, V.N., all in the City of Toronto:

1. assault with a weapon, namely a belt, between January 1 and December 31, 2011, contrary to section 267 (a) of the Criminal Code;
2. assault with a weapon, namely a belt, between January 1, 2016 and July 25, 2020, contrary to section 267 (a) of the Criminal Code;
3. assault between January 1, 2016 and July 25, 2020, contrary to section 266 (a) of the Criminal Code;
4. assault with a weapon, namely a pill bottle, between January 1, 2016 and June 30, 2020, contrary to section 267 (a) of the Criminal Code;
5. assault between January 1, 2016 and June 30, 2020, contrary to section 266 (a) of the Criminal Code;
6. invitation to sexual touching between March 1, 2017 and December 31, 2020, contrary to section 152 (a) of the Criminal Code;
7. sexual interference between March 1, 2017 and December 31, 2020, contrary to section 151 (a) of the Criminal Code;
8. sexual assault between March 1, 2017 and December 31, 2020, contrary to section 271 (a) of the Criminal Code;
9. sexual interference between March 1, 2017 and December 31, 2020, contrary to section 151 (a) of the Criminal Code;
10. sexual assault between March 1, 2017 and December 31, 2020, contrary to section 271 (a) of the Criminal Code;
11. sexual interference between March 1, 2017 and December 31, 2020, contrary to section 151 (a) of the Criminal Code; and
12. sexual assault between March 1, 2017 and December 31, 2020, contrary to section 271 (a) of the Criminal Code.

[2] Count 1 relates to an incident where C.N.B. allegedly hit V.N. with a belt after seeing her eating ice cream before dinner (“Ice Cream Incident”).

[3] Count 2 relates to allegations that C.N.B. hit V.N. with a belt on a number of occasions, often because she had picked at her nails (“Nail Incidents”).

[4] Count 3 relates to allegations that C.N.B. frequently hit V.N. with his hands, and pulled her hair and ears. At the beginning of the trial, C.N.B. pled guilty to this count and admitted to spanking V.N. with excessive force. However, he did not admit to pulling V.N.’s hair and ears (“Hands, Ears and Hair Incidents”).

[5] Count 4 relates to an incident where C.N.B. allegedly threw a pill bottle at V.N. which hit her on the nose (“Pill Bottle Incident”).

[6] Count 5 relates to an incident where C.N.B. allegedly kicked V.N. in the back with his foot in a park, at a time where he was wearing boots (“Boot Incident”).

[7] Count 6 relates to allegations that while C.N.B. and V.N. were showering together, C.N.B. took V.N.’s hand and made her grab his penis (“Touching of Penis Incident”).

[8] Counts 7 and 8 relate to allegations that while C.N.B. and V.N. were showering together, C.N.B. touched V.N.’s breasts and vagina on many occasions (“Shower Incidents”).

[9] Counts 9 and 10 relate to allegations that C.N.B. often touched V.N.’s breasts and vagina while V.N. was sitting on the couch in the living room (“Couch Incidents”).

[10] Counts 11 and 12 relate to allegations that C.N.B. touched V.N.’s vagina while she was lying down on her parents’ bed (“Bed Incident”).

[11] Aside from part of the allegations under Count 3, C.N.B. denied that any of the other incidents happened, making credibility the central issue in this trial. Applying the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742, I am convinced beyond a reasonable doubt of the guilt of C.N.B. On the whole of the evidence, I am not left with a reasonable doubt about his guilt. Accordingly, I find him guilty of all twelve counts before the Court.

A. FACTUAL BACKGROUND

[12] V.N. is the daughter of C.N.B. and P.C. She is 14 years old. She has a sister, M.N., who is 6 years old, i.e., eight years younger than her. V.N. also has four older stepsiblings, including D.N. and C.N., who are the children of C.N.B. D.N. and C.N. lived with C.N.B., P.C., V.N. and M.N. for a period of time.

[13] In 2017, V.N. and her family (her father, mother and sister) moved into a condominium unit in Toronto (“Condo”). Most of the offences are alleged to have occurred in the Condo or while V.N. and her family were living in the Condo. The registered owners of the Condo are P.C. and her mother. However, C.N.B. contributed to Condo-related expenses when he was working. V.N. was 7 years old at the time of the move. M.N. was born while the family lived in the Condo.

[14] At the time of the move, C.N.B. was working in the construction industry and P.C. was a stay-at-home mother.

[15] At some point, V.N.’s stepsiblings, D.N. and C.N., came to live in the Condo with V.N. and her family. They went to school and had part-time jobs.

[16] In September 2018, C.N.B started having problems with his back and was unable to go back to work. He went on disability. As a result, P.C. went to look for a job. She found a job in a department store in November 2018 and went to work while C.N.B. stayed at home and looked after V.N. and M.N. C.N.B. took medication for pain relief. P.C. worked 34-36 hours per week on average, and she had every other weekend off. Some of her shifts ended at 4 p.m., some at 6 p.m., and others at 9 p.m.

[17] On July 15, 2021, when she was 11 years old, V.N. gave a videotaped statement to the police regarding the offences alleged in this case. During her testimony at trial, V.N. adopted the contents of the video recording, which was admitted in evidence pursuant to section 715.1 of the Criminal Code.

B. EVIDENCE AT TRIAL

[18] The Crown called two witnesses: V.N. and her mother, P.C. The defence also called two witnesses: C.N.B. and his son, C.N.

1. Evidence of V.N.

[19] V.N. gave evidence with respect to all of the counts, except for Count 1 (Ice Cream Incident).

a. Nail Incidents

[20] When she was feeling very nervous, V.N. would peel off the skin on her fingers or chew her nails. C.N.B. did not like the fact that V.N. had this habit and he would notice that she had done it when he cut her nails. He would then ask her why she had done this and tell her that he had told her not to do this. On two or three occasions while living in the Condo, C.N.B. got really mad about V.N. peeling off the skin on her fingers or chewing her nails, and he hit V.N. with his belt. V.N. stated that C.N.B. told her that “every nail that is bite, is gonna be the times that I will hit you with the belt.”

[21] V.N. said that C.N.B. had two belts: a black one and a brown one. She testified that he would hold the belt in an “O” or circle shape and hit her with the belt on her back.

[22] V.N. estimated that over the years, C.N.B. hit her with a belt ten or more times. This occurred both in the Condo and in their prior residence.

b. Hands, Ears and Hair Incidents

[23] V.N. testified that C.N.B. hit her with his hand ten or more times. She said that he would hit her anywhere with his hand and that she would get a lot of bruises. V.N. stated that C.N.B. hit her mostly on her back. She would have bruises, but people would not see them because the bruises would be covered by her clothes. V.N. also said that C.N.B. used to pull her ear and her hair.

c. Pill Bottle Incident

[24] One day, while V.N.’s mother was still at work, C.N.B., V.N., M.N., D.N. and C.N. were eating at the table. C.N.B. got mad because V.N. was not eating fast enough or she did something else that C.N.B. did not want her to do. C.N.B. stood up, grabbed a pill bottle and threw it at V.N. The pill bottle hit her nose and, as a result, she had a cut on the bridge of her nose. Her mother noticed the cut on V.N.’s nose when she came back from work, and had an argument with C.N.B. V.N. was approximately 10 years old when this occurred.

d. Boot Incident

[25] During the COVID pandemic, C.N.B., V.N., M.N. and C.N. went for a walk near a river. C.N.B. told V.N. to do something, but she did not hear him. He asked her again and said something along these lines: “you don’t hear me. Why are you like this?” C.N.B. then started to kick V.N. with his foot. C.N.B. was wearing heavy brown boots with laces. V.N. had a large bruise on her buttocks as a result.

[26] During her video statement to the police, V.N. stated that C.N. was present when this incident happened and that he saw what happened. At trial, she first said that only M.N. was present. When V.N. was reminded that she had previously said that C.N. was also present, she said that he was there but that she did not know if he was looking at the time. She did not remember who was looking.

[27] While she was being cross-examined on this issue, V.N. stated that memory can be the same many years later with respect to very dramatic events. She said that being kicked with a boot just because she was not listening was dramatic. She later acknowledged that she may have had a better memory of the events when she spoke to the police in 2021 than at trial.

e. Shower Incidents and Touching of Penis Incident

[28] V.N. stated that after they moved into the Condo, C.N.B. would tell her to come take a shower with him. This would usually be after dinner. Her mother knew that she was taking a shower with her father, but there was no one else in the bathroom when this was happening. Every time that C.N.B. would take a shower with V.N., he would touch her. The door of the shower was closed, but unlocked. If someone had come into the bathroom while they were in the shower, they would not have seen in the shower because of the shower curtain.

[29] Sometimes, C.N.B. would undress V.N., sometimes she would take off her clothes by herself. They would then go into the shower, both naked. C.N.B. would scrub soap on V.N. Sometimes, he would scrub the soap on her private area. They would then take turns rinsing themselves under the water. After they were both washed and rinsed, this is when C.N.B. would start touching V.N. He would touch her breasts and her vagina. He would rub his fingers on her vagina. V.N. felt that C.N.B. touched her vagina, but, aside from the tip of his fingers, she does not think that he ever put his fingers inside her vagina.

[30] During her video statement, V.N. said that she remembered one occasion where C.N.B. took her hand or wrist and made her grab his penis. He moved her hand up and down on his penis. In both her police statement and at the preliminary inquiry, V.N.’s evidence was that this happened only once. At trial, V.N. testified that this happened more than once – two or three times. V.N. stated that approximately two weeks before the trial, while she was cleaning her room, she found notes in her bedroom that were like a diary. She had written what happened to her in the notes and they reminded her that this kind of incident happened more than once. The notes did not have dates on them. V.N. no longer has these notes. She got rid of them because she was upset. In the days leading to the trial, she did not tell the officer in charge about the notes that she had found. She did not tell her mother either.

[31] V.N. said that nothing came out of C.N.B.’s penis, but she would not be looking at her father or his penis.

[32] V.N. testified that it would burn when she would go to the bathroom after being touched in the shower. The burning sensation would happen each time that C.N.B touched her vagina in the shower. The sensation would last for a couple of hours and was very uncomfortable. She did not complain to her mother about that. V.N. said that she did not complain because she did not know how to tell her mother and she did not know how to stand for herself.

[33] According to V.N., C.N.B. stopped taking a shower with her when she got older, maybe when she was 10 years old.

[34] V.N. said that her father never threatened to hit her if she did not go in the shower with him. She just knew that it was better to listen and she went in. She stated that there was never a threat by C.N.B. He never used force to pull her in the shower.

f. Couch Incidents

[35] V.N. testified that C.N.B. would touch her vagina both under and over her clothes, and that this would usually happen in the living room, on a brown couch. She said that C.N.B. would often go straight to her vagina area, but sometimes he would start on her breasts. He only touched her breasts over her clothing. C.N.B. would rub his fingers in her vagina area, using two fingers. Sometimes he would go under her underwear, sometimes he would just go on top. V.N. stated that C.N.B.’s fingers would go inside her vagina, but “[n]ot like inside inside. Just like on top.” She said that it would hurt after when she went to urinate.

[36] At trial, V.N. testified that C.N.B. never put his fingers fully inside of her. She stated that he mainly just rubbed, but while rubbing, the top part of his fingers could go inside. She felt a sensation of “something kind of entering”.

[37] V.N. said that when she was sitting on the couch, she would most of the time be sitting upright, with her feet touching the ground. Defence counsel suggested to V.N. that C.N.B. would not be able to do what V.N. said he did if she was sitting on the couch in the way that she was describing. V.N. did not understand what was suggested to her on this point.

[38] These incidents on the couch would happen when V.N.’s mother and stepsiblings were working or at school. V.N. believes that this started when she was about ten and a half years old.

[39] V.N. said that this kind of touching happened approximately four times a week.

[40] V.N. stated that C.N.B. stopped touching her at some point in 2020.

g. Bed Incident

[41] Once, V.N. was lying on her parents’ bed with her sister. V.N. thinks that she was playing on her tablet or was reading something. C.N.B. had asked her to watch her sister for a bit. V.N. said that her sister was playing games or watching YouTube videos on a phone. At some point, C.N.B. came into the bedroom, he started touching V.N.’s legs and then he touched her private parts. V.N. was wearing light grey pants. C.N.B. pulled V.N.’s pants all the way down and he started to touch her vagina and rub his fingers on top of her underwear. V.N. said that her pants were not fully off. V.N. does not think that C.N.B. touched her breasts during this incident, but she does not remember. At some point, V.N.’s mother called from work and C.N.B. left the room and did not come back. V.N. thinks that she was approximately 10 years old at the time of this incident.

h. Other evidence of V.N.

[42] V.N. testified that her father was very strict. He often got angry, and his anger included violence.

[43] V.N. stated that C.N.B. hit her younger sister, M.N., with his hands and screamed at her. He also pulled her ears and hair.

[44] V.N. said that her father asked her stepsiblings to be home by 10 p.m. and he told them that if they did not come back by 10 p.m., the doors would be locked and they would not be able to come in. V.N. also gave evidence about an incident involving her stepsister, D.N. One day, D.N. lied to C.N.B. about being at work. When C.N.B. found out, he was mad and he told D.N. never to come home.

[45] While V.N.’s mother and stepsiblings were not at home when the sexual touching occurred (except for the sexual touching in the shower), V.N. does not remember whether her mother was at home when C.N.B. hit her. She said that her mother could be at home, but that she did not see V.N. being hit with a belt as that was not done in front of her mother.

[46] V.N. testified that after C.N.B. had touched her, he would stay silent and act like nothing had happened. C.N.B. would also not say anything during the touching. V.N. stated that she just stayed quiet while it was happening because she was scared that he would hit her.

[47] According to V.N., C.N.B. would not sexually touch her more than once a day.

[48] While the sexual touching occurrences were happening, V.N. did not tell her mother. She did not know how to tell her mother, and she was scared of her father and what would happen to her and her sister given that her father used to hit her and her sister a lot.

[49] V.N. does not remember if her father told her not to tell anyone.

[50] When V.N. told her mother about the sexual touching for the first time and went to the police, C.N.B. was not living with them in the Condo. A few weeks before that, V.N.’s parents had a physical fight and the police was called. V.N.’s understanding was that C.N.B. had previously kicked her mother out of the house. C.N.B. told V.N. that he had kicked her mother out because she had a new partner. V.N. was upset as she wanted her mother to live with them at home. She did not like her father hitting her and her mother. V.N. said that she started hating her father at around that time.

[51] After the police was called and C.N.B. was arrested for assault on P.C., P.C. moved back into the Condo. C.N.B. has never been back in the Condo. V.N. denied that her mother told her to make a story up to keep the Condo.

[52] V.N. and her mother testified that since V.N. gave her statement to the police, they have not discussed the details of what happened.

2. Evidence of P.C.

[53] P.C., V.N.’s mother, is 36 years old. She was in a common law relationship with C.N.B. She met him when she was 19 years old and he was 32 years old. They lived together for 14 years and had two daughters together, V.N. and M.N.

[54] P.C.’s evidence was that she had a “strict lifestyle” with C.N.B. and that everything he would say would have to be done. Otherwise, she would get hit or he would say something bad to her. C.N.B. was very controlling. He had control over money, as well as the daily schedule (e.g., when to go to sleep, wake up, go shopping, do laundry, etc.). He would tell P.C. what she was allowed to do with their daughters during the day. P.C. had no say in the discipline of the children.

[55] P.C. testified that C.N.B. had anger issues. He would yell in the house, smack her, push her, and throw things at her. It was a violent household. P.C. said that the beatings made her angry and upset, but she thought that this was how the relationship was. V.N. knew what was going on and that caused emotional stress to V.N.

[56] According to P.C., V.N. was a target for C.N.B. since she was very young, and it became worse after C.N.B. got sick. P.C. said that V.N. was a picky eater as a child, starting at one year old. P.C. would often tell C.N.B. that V.N. was a child, not a robot.

[57] P.C. remembers an incident when she, C.N.B. and V.N. resided at a prior address, i.e., the Ice Cream Incident. P.C. had given a bowl of ice cream to V.N., despite the fact that C.N.B did not want her to give dessert to V.N. before a meal. V.N. was about two years old at that time. C.N.B. came home early and saw V.N. eating ice cream. He grabbed V.N., took her to the bedroom and hit her with a belt. The disciplining from start to finish (including the yelling) took about five minutes. P.C. stayed in the kitchen as she could not interfere when C.N.B. disciplined V.N. C.N.B. hit P.C. after hitting V.N.

[58] Before 2018, while she was at home, P.C. saw C.N.B. hit V.N. every other day. He would hit her in the head or face. This would mostly happen during dinner time or because V.N. had not done something that C.N.B. had asked her to do right away. C.N.B. also hit V.N. on the legs in all the residences in which they lived.

[59] P.C. stated that C.N.B disciplined V.N. with a belt and his hand, he kicked her on her upper legs (just under the buttocks), pulled her hair and swung a spoon at her at the table. P.C. thinks that C.N.B. used a belt to discipline V.N. for a total of maybe five times that she witnessed. She said that C.N.B. did not use a belt to discipline the other children.

[60] P.C. testified that M.N. and C.N. also got hit by C.N.B. D.N. was not physically disciplined, but she was yelled at.

[61] P.C. said that she did not know what was going on in the home while she was at work. However, she was aware that the children were being disciplined. V.N. often asked her not to go to work. P.C. sometimes saw bruises on V.N., including on her arms, legs, back and face/forehead. The bruises were mostly red bruises. When they were together, for instance at nighttime, P.C. would ask V.N. what happened. Sometimes V.N. would tell her, sometimes she would not. P.C. said that she told C.N.B that he had to stop or the children would be taken away. C.N.B.’s response was that they were his children and he would discipline them. If P.C. was trying to help her daughter, C.N.B. would push her away and tell her not to get involved.

[62] P.C. also saw a cut on V.N.’s nose one day after coming home from work. After asking both V.N. and C.N.B. what had happened, V.N. eventually told her that C.N.B. had thrown a pill bottle at her. V.N. was 8 or 9 years old at the time.

[63] P.C. would tell V.N. when she put her in bed to behave well and try not to do things that upset her father.

[64] C.N.B. told P.C. that if she called the police, he would deny what she says, and he would come back and do worse to her. P.C. did not do anything. When she had no job, she had no money. After she had a job, P.C. did not think that it was proper to do anything because C.N.B. was sick and he had been there with them as a family for a long time. She felt sorry for him because of his back and wanted her daughters to have a father. She was also afraid.

[65] P.C. was aware that C.N.B. and V.N. showered together. P.C. had no concerns about this while it was taking place. She said that V.N. was slender at that time and not developing. The showers took place in the evening. When V.N. was smaller, she knew that C.N.B. took his shower with V.N., naked. When V.N. was older, she was not sure whether C.N.B. was showering at the same time. P.C. said that when V.N. was 9 or 10 years old, C.N.B. stopped showering with her. P.C. specifically denied that the showers stopped when V.N. was 4 years old.

[66] P.C. stated that she and C.N.B. separated in December 2020, but they tried to continue to live together under the same roof. P.C. continued to go to work, C.N.B. continued to look after the children, but they slept in separate rooms. This arrangement lasted for a few months. According to P.C., C.N.B. was still very controlling and he would still try to hug her or kiss her, which made her feel uncomfortable.

[67] The last time that P.C. saw C.N.B. being physical with V.N. was at the end of 2020 or the beginning of 2021.

[68] In June 2021, P.C. moved out of the house, based on a mutual agreement. She moved to a different condominium unit in the same building where her mother, father and grandmother lived. P.C. saw V.N. and M.N. every day. It was agreed that she would see them after work, depending on when her shift ended as the girls had to be in bed by 8 p.m. She would take V.N. and M.N. to a park with C.N.B. She was not able to take the girls by herself. This arrangement only lasted for five days or so.

[69] On June 15, 2021, P.C. called the police because C.N.B. smacked her and he threw her out of the house as she was trying to pick up her daughters to bring them to McDonald’s for lunch. C.N.B. was charged with assaulting P.C. The assault occurred in the Condo. V.N. and M.N. were at home when it happened. After C.N.B.’s arrest, P.C. returned to live with her daughters in the Condo.

[70] P.C.’s evidence was that she did not see a lawyer prior to C.N.B.’s arrest. She does not remember when she saw a lawyer for the first time after that. On June 17, 2021, two days after C.N.B.’s arrest, she signed a Form 8: Application (General) to commence a family proceeding in which she asked for sole decision-making for the children, child support, and an order that the children reside with her. The form was prepared by a lawyer on behalf of P.C.

[71] P.C. stated that M.N. started playing games and watching videos on a phone when she was three or four years old. M.N. did not have her own phone and would be using C.N.B.’s phone.

[72] Approximately one month after C.N.B. was charged with assault and P.C. moved back into the Condo, V.N. told P.C. that C.N.B. sexually touched her when she was smaller. V.N. was crying. She told P.C. about various incidents after she stopped crying. P.C. said that she had never seen or suspected anything. P.C. contacted the police. The police came to their home and took a report. The video statement was recorded a few days later.

[73] P.C. stated that she and V.N. have not discussed the details of the case since V.N.’s initial disclosure. P.C. said that V.N. is very sensitive to the issue so they do not discuss it. P.C. testified that V.N. had to be taken out of sex education classes because she was crying and had panic attacks.

[74] After a trial, C.N.B. was found guilty of assault on P.C. His probation order includes a condition that he is to stay away from P.C. C.N.B. has complied with this condition.

[75] P.C. has been thinking about selling the Condo. She suggested to her mother that they should buy a house instead because she thinks that it would be cheaper.

3. Evidence of C.N.B.

[76] C.N.B. is 49 years old. He came to Canada from South America in approximately 2002. He met P.C. in 2006 or 2007. They have two daughters together, V.N. and M.N.

[77] In approximately 2012, C.N.B. was convicted of assaulting his boss at work. He received a suspended sentence and a 12-month probation. His criminal record also includes the assault against P.C. referred to above. He was convicted in January 2023. He was sentenced to 60-day conditional sentence and a 2-year probation.

[78] C.N.B. stated that he took counselling for anger management and he obtained psychological help.

[79] C.N.B. admitted that he had anger issues when he lived with P.C., V.N. and M.N. He stated that this started when he got sick and had to stay at home, and when P.C. started a relationship with someone at work. He said that this is what made him lose control. He also said that P.C. tried to get him out of the home.

[80] C.N.B. admitted that he liked to have control over his family, he liked structure and order and he expected things to be done a certain way. However, he denied liking to control the food that his family ate or when they got up. He said that he was in charge of finances in the family, but he did not need to know when P.C. was spending money.

[81] After he was no longer able to work starting in 2018, C.N.B. and P.C. made a decision as a family that P.C. would go to work and C.N.B. would stay home with the children. It was difficult for C.N.B. as he liked to work and be the one providing for his family. He had to stay home and deal with the pain and his medical condition. However, C.N.B. also stated that it was not difficult for him when P.C. was working and that P.C. did not become more independent after she started working.

[82] C.N.B. said that he liked to control the discipline of the children because he was their father and he was home all day. He admitted, however, that his patience was low. He said that he would yell and scream at the kids, including the older ones (D.N. and C.N.). He acknowledged that he had many discussions with P.C. with respect to the fact that she did not like how he disciplined the children, particularly V.N. P.C. told him to stop hitting V.N. He did not listen to her.

[83] C.N.B. stated that D.N. and C.N. had a 10 p.m. curfew. However, he denied that he would lock the door at 10 p.m.

[84] C.N.B. acknowledged that there was an incident where he found out that D.N. had not gone to work and lied to him, and that made him very angry. As a result, he told her to leave the house. She left and she never came back living with the family. Later in his testimony, C.N.B. denied kicking D.N. out of the house. He said that they had already talked about D.N. going to live with her boyfriend, and they agreed that she was going to leave the house to go live with her boyfriend.

[85] C.N.B. described his relationship with V.N. as a normal one. He stated that he would sometimes reprimand her and give her a spank or smack her with his hand on the buttocks. He admitted that he may have overdone the spanking because he has large hands. C.N.B. said that he felt resentment towards P.C. and he believes that he may have taken his anger out on his children. He also spanked M.N., starting when she was 3 or 4 years old. C.N.B. denied routinely hitting his children. He said that he did not do it a lot. He admitted also spanking C.N. on the buttocks when he was little when he was doing mischievous things. C.N.B. said that he also overdid it with C.N. and, in fact, he overdid it with all his children.

[86] C.N.B. denied that his children were afraid of him. However, he acknowledged that V.N. knew that if she did not listen right away, it would make him angry and he could hit or spank her. He also acknowledged that he told V.N. to listen to him or he would hit her. He agreed that V.N. knew that there was always a possibility that she would be hit if she did not listen.

[87] C.N.B. stated that he did not hurt the children, although he acknowledged that they cried when he hit them. He then admitted that the children cried because it hurt them, not just emotionally but also physically.

[88] C.N.B. testified that he never: a. smacked V.N. in the face or any body parts (including legs, arms, head), except for her buttocks; b. threw items at her; c. pulled her hair or her ears; d. used a belt to hit her; e. kicked her; f. cut her nails; g. showered with V.N. after she was 3 or 4 years old; h. sexually touched V.N.; i. touched her breasts or vagina on the couch, on the bed or in the shower; j. asked V.N. to touch his penis.

[89] C.N.B. testified that he did not remember seeing V.N. eating ice cream. He said that if he had seen that, it would not have made him angry. However, he admitted slapping V.N. when she was three or four years old if she did not want to eat as she was never hungry. The fact that she was not eating would make him sufficiently upset and angry that he would smack her. C.N.B. admitted being angry at the dinner table, but he said that it was because he was concerned about V.N.’s nutrition. He would not hit V.N. at the table. He would take her away from the table, spank her on her buttocks and then V.N. would go away and not return to the dinner table. C.N.B. denied hitting V.N. at the table or hitting her on other parts of her body.

[90] C.N.B. stated that the Ice Cream Incident described by P.C. never happened.

[91] C.N.B. also denied that the Pill Bottle Incident happened. He said that he never saw V.N. with a cut on her nose. C.N.B. similarly denied the Bed Incident in the bedroom with both M.N. and V.N. on the bed.

[92] C.N.B. denied that V.N. had a habit of picking or chewing her nails. As stated above, he also denied cutting her nails, even once. He denied telling V.N. that he would hit her with a belt for each bitten nail. C.N.B. said that he had black leather belts at home, but not a light brown one.

[93] C.N.B. denied kicking V.N. in the park. C.N.B. disagreed that being at home with the children was a bigger challenge during the pandemic, except that he had to deal with the fact that the children were both at home. C.N.B. stated that they went outside every day and walked to a park where there is a river. D.N. and C.N. were living at home at that time, and they would go out with C.N.B., V.N. and M.N. if they were at home.

[94] In cross-examination, C.N.B. first denied showering with V.N. when she was 3 or 4 years old. When reminded of his evidence-in-chief on this point, he said that he did shower with her when she was 3 or 4 years old. He denied ever showering with V.N. in the Condo. He said that V.N. was bathing by herself there.

[95] C.N.B. stated that he and P.C. separated in June 2021. He denies that prior to that, P.C. slept in a different room. He also denies that P.C. went to live with her mother in the same building. He states that she left to live with her new partner. According to C.N.B., they agreed that P.C. would go live with her new boyfriend and he would live with the girls. C.N.B. stated that P.C. was out of the family home for around three months and that she did not come see the children every day. C.N.B. said that P.C. moving out of the home made him very angry and it made him lose control over his anger. He did not like the fact that she was seeing another man.

[96] C.N.B. admits that he assaulted P.C. one day when she tried to take V.N. and M.N. out for lunch. The police came to the Condo and he had to leave the home. He has never seen V.N. and M.N. again. He has had to comply with a condition (while on release, and as part of his conditional sentence and probation) of no contact with P.C.

4. Evidence of C.N.

[97] C.N. is the son of C.N.B. He is 21 years old. He came to Canada approximately 4 years ago with his sister D.N. D.N. is four years older than him. Their mother stayed in South America. C.N.B. sponsored them to come to Canada. C.N.’s evidence was that he lived with C.N.B. and his family for only a year or two. This was the first time that he had ever lived with his father as his mother raised him. While living in the Condo, C.N. slept there and shared meals with the family.

[98] C.N.’s evidence as to who was living with him in the Condo was initially incomplete as he forgot both D.N. and M.N. He also stated that his father became unable to work approximately two years after he arrived in Canada, which is inconsistent with all of the evidence, unless C.N. came to Canada in 2016, which is seven or eight years ago, not four.

[99] C.N. said that he loved his father very much, that he did not want his father to get into any trouble, and that he would do anything to help him.

[100] C.N. stated that he did not see any violence in the home and that he did not see any violent interactions between his father and V.N. At the time, he was going to high school and he had a part-time job in a fast-food restaurant. As a result, he was not around the Condo very much during the day. D.N. went to an ESL (English as a second language) school and also had a part-time job in a fast-food restaurant.

[101] C.N. admitted that his father had a controlling personality and was very strict with everybody. He said that C.N.B. liked things to be done in a certain way, and he liked to control bedtime and the family’s activities. C.N. had a 10 p.m. curfew. C.N. said that the door would be locked if he was not home by 10 p.m. and he would have to find another place to sleep.

[102] C.N. stated that when his father was at home all day, he was in charge of discipline. C.N. said that it was difficult for his father not to be able to work and being in pain because of his back.

[103] C.N. occasionally spent some time with V.N. and M.N. He was aware that V.N. was biting and picking at her nails. He said that she was doing it a lot and that C.N.B. did not like it. C.N.B. would tell her to stop, raise his voice and yell at her. C.N. stated that C.N.B. cut V.N.’s nails regularly. C.N. said that he never heard C.N.B. threaten to hit V.N. with a belt. C.N. was aware that his father had one black belt.

[104] C.N. said that C.N.B. would sometimes lose his temper and the young children were scared of him and they knew that they had to listen. C.N.B. not only lost his temper with the young children, but also with C.N. and D.N. C.N. stated that D.N. was thrown out of the house in her early 20s. He said that C.N.B. found out that D.N. was not working and he was very upset that she had lied to him. C.N.B. told D.N. that she was not welcomed to come back in the home.

[105] C.N. sometimes saw C.N.B. discipline V.N. in the house. C.N.B. would yell at her, but he would not hit her. He would only grab her, push her or raise his hand in a threatening manner, but he would not use his hand. C.N. said that C.N.B. would sometimes grab V.N. from her shirt, her hair or her ear. He said that when C.N.B. pulled V.N.’s hair, he did not do so very strongly. C.N. said that he did not see C.N.B. pull V.N.’s hair or ear a lot. He acknowledged that V.N. would sometimes cry and that it was clear that it had hurt her. C.N. pointed out that his father was a big guy.

[106] C.N. testified that he never saw C.N.B. slap V.N. He just saw C.N.B. raise his hand in a threatening manner and never saw him use his hand on V.N. or anybody else.

[107] C.N. said that C.N.B. and P.C. argued a lot, and that he was around for many arguments. C.N. stated that he did not know that his father had assaulted P.C.

[108] C.N. said that the Pill Bottle Incident never happened. He did not believe that his father would do such a thing.

[109] C.N. confirmed that he went for walks in the park with his father, M.N. and V.N. during the pandemic. He said that sometimes V.N. did not listen and when that happened, C.N.B. would get angry but only talk to her and raise his voice. According to C.N., this was not unusual as V.N. often did not listen. C.N. stated that these issues did not happen at the dinner table.

[110] C.N. denied that the Boot Incident occurred in the park. He said that when V.N. did not listen by the river, C.N.B. only yelled at her and told her to listen.

[111] C.N. said that his father did not shower with V.N. C.N. said that it never happened.

[112] C.N. acknowledged that he had spoken to his father about the charges and allegations in this case. C.N. knew that C.N.B. had been charged with sexually assaulting V.N. and that one of the places where the sexual assaults were alleged to have taken place was the shower.

[113] C.N. eventually left the Condo because of an argument with his father. He has been out of the Condo ever since.

[114] C.N.’s evidence was at times very confusing. He said on a few occasions that C.N.B. would sometimes hit V.N., but then said that his father would only push V.N. or raise his hand but not use it. C.N. also said that C.N.B. had used his hand on him at some point, but then he said that C.N.B. had only raised his hand and threatened him that he would have to leave the Condo if he continued.

C. ANALYSIS

1. General legal principles regarding credibility and reliability

[115] In a case where credibility is important, the Court’s analysis of the evidence is to be guided by the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742 at 758: a. If the trier of fact believes the evidence of the accused, the trier of fact must acquit. b. If the trier of fact does not believe the evidence of the accused but is left in reasonable doubt by it, the trier of fact must acquit. c. Even if the trier of fact is not left in doubt by the evidence of the accused, they must ask themselves whether, on the basis of the evidence which the trier of fact accepts, they are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[116] The paramount question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. A verdict of guilt should not be based on whether the trier of fact believes the defence evidence or the Crown’s evidence. See R. v. C.L.Y., 2008 SCC 2 at para. 6.

[117] Given the opposite versions of events of the witnesses in this case, the issues of credibility and reliability are critical. Credibility and reliability are different. While credibility has to do with a witness’ veracity, reliability has to do with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to observe, recall and recount accurately. See R. v. H.C., 2009 ONCA 56 at para. 41.

[118] This case also involves the assessment of credibility and reliability of a child, V.N. 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 their mental development, understanding and ability to communicate. 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. A contradiction in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. A common sense approach should be adopted when dealing with the testimony of children and the court should not impose the same exacting standard on them as it does on adults. See R. v. W.(R.), [1992] 2 S.C.R. 122 at 133-134.

[119] Thus, the peculiar perspectives of children can affect their recollection of events, and the presence of inconsistencies – especially those related to peripheral matters – should be assessed in context. A skilful cross-examination is almost certain to confuse a child, even if the child is telling the truth. That confusion can lead to inconsistencies in the child’s testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the evidence. See R. v. F.(C.C.), [1997] 3 S.C.R. 1183 at para. 48.

[120] It is a common experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than they will later on. It follows that a videotaped statement which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. See R. v. F.(C.C.), [1997] 3 S.C.R. 1183 at para. 19.

[121] It is important to recognize the difficulty for a person accused of an historical sexual assault on a young person to raise a defence other than a simple denial. In those circumstances, a trial judge should be extra-vigilant when examining the evidence of the complainant. See R. v. R.G.L. at para. 18.

[122] A prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness and their trustworthiness. The mere fact that a witness was previously convicted of an offence does not mean that they necessarily should not be believed, but it is a fact which might be taken into account in assessing credibility. Evidence of prior convictions cannot be used to draw an inference that the accused is a person of bad character or a person who has a propensity to commit criminal offences. See R. v. Corbett, [1988] 1 S.C.R. 670 at 685-686, 688-689.

2. Offences

[123] I set out briefly below the essential elements of the relevant offences.

a. Assault

[124] The essential elements of the offence of assault are as follows: a. that C.N.B. applied force to V.N.; b. that C.N.B. intentionally applied the force; c. that V.N. did not consent to the force that C.N.B. applied; and d. that C.N.B. knew that V.N. did not consent to the force that C.N.B applied.

[125] Force includes any physical contact with another person, even a gentle touch. The contact may be direct (for example, touching a person with a hand or other part of the body) or indirect (for example, touching a person with an object).

b. Assault with a weapon

[126] The essential elements of the offence of assault with a weapon are as follows: a. that C.N.B. applied force to V.N.; b. that C.N.B. intentionally applied the force; c. that V.N. did not consent to the force that C.N.B applied; d. that C.N.B. knew that V.N. did not consent to the force that C.N.B. applied; and e. that C.N.B. used a weapon.

[127] As stated above, force includes any physical contact with another person, direct or indirect (i.e., with an object). A “weapon” is anything used, designed to be used, or intended by a person to be used to injure, kill, threaten or intimidate another person.

c. Invitation to sexual touching

[128] The essential elements of the offence of invitation to sexual touching are as follows: a. that V.N. was less than sixteen years old at the time; b. that C.N.B. invited or incited V.N. to touch, either directly or indirectly, C.N.B.’s body; and c. that the invitation or incitement to touch was for a sexual purpose.

[129] To “invite” means to request, ask or suggest, by words or gestures, or both, that something be done. To “incite” means to encourage or urge someone, by words or gestures, or both, to do something. The invitation or incitement must be to touch the body of a person. The proposed touching must involve physical contact with any part of a person’s body. The contact could be direct, for example, touching a person with a hand or other part of the body, or indirect, for example, touching a person with an object. Force is not required.

[130] To determine the purpose of the touching, the court has to consider all the circumstances surrounding it, including the part of the body that C.N.B. invited or incited V.N. to touch, the nature of the contact in which C.N.B. invited or incited V.N. to participate, what was said and what was done.

d. Sexual interference

[131] The essential elements of the office of sexual interference are as follows: a. that V.N. was less than sixteen years old at the time; b. that C.N.B. intentionally touched V.N., either directly or indirectly; and c. that the touching was for a sexual purpose.

[132] Again, to determine the purpose of the touching, the court has to consider all the circumstances surrounding it, including the part of the body that was touched, the nature of the contact, what was said and what was done.

e. Sexual assault

[133] The essential elements of the offence of sexual assault are as follows: a. that C.N.B. touched V.N. directly or indirectly; b. that the touching by C.N.B. was intentional; c. that the touching by C.N.B. took place in circumstances of a sexual nature; d. that V.N. did not consent to the sexual activity in question; and e. that C.N.B. knew that V.N. did not consent to the sexual activity in question.

[134] Consent is not a defence if the complainant is under the age of sixteen: see section 150.1 of the Criminal Code.

3. Assessment of the evidence

a. Defence evidence

[135] In my view, C.N.B. was not a credible witness. Significant portions of his evidence were contradicted by the other witnesses, most notably C.N. who was called to testify by the defence. Further, C.N.B. contradicted his own evidence at times and portions of his evidence did not make sense in light of the rest of his evidence.

[136] Among other things: a. When C.N.B. pled guilty to Count 3 at the beginning of the trial, it was made clear on the record that he did not admit to pulling V.N.’s hair and ears. However, C.N. testified that C.N.B. would sometimes pull V.N.’s hair and grab her by the ear. This was consistent with V.N.’s evidence. b. C.N.B. denied that V.N. had a habit of picking or chewing her nails. He also denied ever cutting V.N.’s nails. C.N. testified that C.N.B. cut V.N.’s nails regularly. C.N. also testified that V.N. was biting and picking at her nails a lot and that C.N.B. did not like it. Again, this was consistent with V.N.’s evidence. Further, a blanket denial with respect to C.N.B. ever cutting V.N.’s nails does not make sense given that, for a number of years, C.N.B. was the parent spending the most time with V.N. c. C.N.B. denied kicking D.N. out of the house and he also denied that he would lock the door at 10 p.m. if the curfew was not respected. This was contradicted by C.N. who confirmed V.N.’s evidence on these points. d. When C.N.B. pled guilty to Count 3, he admitted to spanking V.N. with excessive force. However, during his cross-examination, he denied hurting his children or going over and above what is allowed for a parent. While C.N.B. initially denied hurting his children, he acknowledged that they cried when he hit them. e. C.N.B.’s evidence that seeing V.N. eating ice cream before dinner would not have made him angry is not credible and completely inconsistent with the rest of his evidence, including his admission that he would be angry at the dinner table if V.N. was not eating and that he would slap V.N. if she did not want to eat because she was not hungry. f. C.N.B.’s evidence regarding how he would discipline V.N. if she did not eat is not credible and does not make sense. According to C.N.B., he was concerned about V.N.’s nutrition. Despite this, C.N.B. testified that he would not discipline her at the table. Rather, he would take her away from the table, spank her on her buttocks and then V.N. would go away and not return to the dinner table. I note that the only thing to which C.N.B. admitted at trial is spanking V.N. on the buttocks, and this is not something that he could do while V.N. was sitting at the dinner table. While his evidence about what he did to address V.N.’s failure to eat is consistent with the limited admission that he made about spanking, this way of proceeding, especially having V.N. leave the dinner table without eating, does not address any nutrition concerns that C.N.B. allegedly had. It is also inconsistent with the evidence regarding C.N.B.’s temper, including his own evidence. g. C.N.B. denying that P.C. became more independent after she started working does not make sense. h. There were inconsistencies within C.N.B.’s testimony with respect to the incident with D.N. when she stopped living at the Condo with the rest of the family. i. In cross-examination, C.N.B. first denied showering with V.N. until she was 3 or 4 years old, even though he had admitted doing so during his examination-in-chief. j. C.N.B. tried to blame his anger issues and some of his behaviour on the fact that P.C. started a relationship with someone else and, at times, on his health issue and the fact that he had to stay home. However, it is clear from C.N.B.’s own evidence that he had anger and other issues many years prior to these events occurring.

[137] In my view, the issues with C.N.B.’s evidence are not related to the difficulty for an accused of an historical sexual assault on a child to raise a defence of a simple denial. As set out above, the issues with his evidence are not related to evasiveness, non-recall or any difficulty to remember non-events. Rather, the issue is that C.N.B. was untruthful and inconsistent.

[138] As for C.N.’s evidence, I agree with the Crown’s submission that C.N. was trying to help his father during his testimony and was prepared to be untruthful in order to do so. C.N. acknowledged that he had spoken with his father about the charges and allegations in the case, and that he knew, for instance, that one of the places where the sexual touching was alleged to have taken place was the shower. C.N. flatly denied that the main allegations in various counts occurred, even though, based on his own evidence, he only lived in the Condo for approximately a year or two [1] and, during that time, he went to school and had a part-time job. This shows that he was not careful while giving his evidence and was prepared to deny things without qualification based on very limited information and opportunity to observe.

[139] The fact that C.N. was not truthful is demonstrated, among other things, by the fact that he denied things that his father himself admitted. The following evidence given by C.N. is contradicted by C.N.B.’s own evidence: a. C.N. said that he did not see any violence in the home. b. C.N. testified that C.N.B. would not use his hand when disciplining V.N. or anybody else. C.N. said that C.N.B. would only raise his hand but not use it. However, C.N.B. pled guilty to Count 3 and admitted to using his hand to spank V.N. with excessive force. He also admitted to using his hand to spank M.N.

[140] While I find that C.N.’s evidence was not truthful on certain points, he also gave evidence with respect to facts that were not central to the counts and with respect to which he had no reason not to tell the truth. C.N.’s evidence on these points showed that his father had been dishonest in his evidence. The evidence given by C.N. that is consistent with V.N.’s evidence and inconsistent with C.N.B.’s evidence (e.g., cutting of nails, pulling of hair and ears, incident with D.N., etc.) is outlined above in the discussion regarding C.N.B.’s credibility.

[141] I also note that given the unclear timeline of when C.N. came to Canada and lived with V.N.’s family, many of his denials do not undermine V.N.’s evidence. C.N. testified that he came to Canada approximately four years ago, i.e., in 2020, and that he lived in the Condo for only a year or two. Given that C.N.B. was arrested on June 15, 2021, C.N. would not have lived under the same roof as C.N.B. and V.N. after that date.

[142] C.N.’s evidence that C.N.B. did not shower with V.N. does not contradict V.N.’s evidence. V.N. stated that C.N.B. stopped taking his shower with her when she got older, maybe when she was 10 years old. V.N. turned 10 in 2019 which, according to C.N.’s evidence, is before he arrived in Canada and lived in the Condo.

[143] V.N. also testified that C.N.B. stopped touching her at some point in 2020. While the sexual touching on the couch and the bed took place when there was no one else at home (except for M.N.), the sexual touching may have stopped before or shortly after C.N. started living in the Condo.

[144] The denials on the part of C.N. that are significant are those related to the Pill Bottle Incident and the Boot Incident because he is said to have been present when they took place. However, in light of the above, I find that C.N.’s evidence on these points is not credible.

b. Evidence of the complainant and her mother

[145] In contrast, I found V.N. to be a very credible witness. She was thoughtful and straightforward when answering questions, and she did not seek to exaggerate or embellish things. When she did not know or remember something, she said so. She had a good recollection of the events and many details. She was able to observe, recall and recount accurately. Her evidence at trial was consistent with the video statement that she gave to the police almost three years earlier.

[146] Defence counsel argues that V.N.’s evidence at trial was not consistent with her video statement evidence. In my view, most of the inconsistencies pointed out by defence counsel are not real inconsistencies because the questions and answers in the video statement were not always clear. There are only a few “real” inconsistencies, but I conclude that there is a common-sense explanation for them and/or they relate to peripheral matters and they do not affect the overall credibility and reliability of V.N.’s evidence.

[147] I address below the various inconsistencies, discrepancies and other issues raised by the defence regarding V.N.’s evidence: a. V.N.’s evidence was inconsistent or contained new information at trial on the issue of whether C.N.B. inserted his fingers in her vagina. I disagree that V.N.’s evidence on this point was different at trial than in her video statement. V.N. made it clear in her video statement that her father’s fingers did not go “inside inside”. She said that they were “[j]ust like on top.” In my view, this is consistent with the evidence that she gave at trial. Any “new information” on this point was provided as clarification in response to questions asked by counsel. I note that defence counsel spent some time on this issue during his cross-examination of V.N. Again, I found her answers to be consistent with the answers that she provided during her video statement. b. It would be very difficult for one to have touched V.N.’s vagina on the couch in light of her evidence regarding how she was sitting on the couch during the Couch Incidents. On this point, I accept the Crown’s submission that a child sitting on a couch at home watching television or doing other things would not be sitting the whole time in an upright position. Access to V.N.’s vagina would not have been difficult if she was sitting in a “relaxed position” on the couch. V.N. did not address this point during her cross-examination as she could not even understand the suggestion that C.N.B. would not have been able to touch her vagina if she was sitting upright. In my view, her reaction to that line of questioning is consistent with there being no “access issues”. c. V.N. said in her police statement that C.N. saw the Boot Incident at the park, but at trial she said that she was not sure if he saw it. C.N. said that he did not witness anything of this nature. I discussed C.N.’s evidence above. As for V.N.’s evidence, this discrepancy can easily be explained by the passage of time and the fact that V.N. had a better recollection of events at the time of her videotaped statement. While V.N. first expressed the belief that memory can be the same years later with respect to a dramatic event, she subsequently agreed that her memory was better closer to the event. The fact that a 14-year-old girl may not be familiar or have experience with how memory usually works is not surprising. Further, the issue of whether C.N. saw the Boot Incident or not is a peripheral detail. V.N.’s recount of the Boot Incident was consistent on the main event and other details, including what C.N.B. did to V.N., how and where. d. V.N.’s evidence at trial was not consistent with her video statement evidence because she said during her statement that C.N.B. had taken her pants off during the Bed Incident. I note that V.N.’s statement that C.N.B. had taken her pants off was immediately followed by the statement that she “was wearing them all the way to the bottom”. Further, V.N. responded yes to the question: “So he pulled them all the way to the bottom?” In re-examination at trial, V.N. explained that this meant the bottom of her ankles. In my view, there is no real inconsistency on this point as V.N. did not clearly say during her video statement that her pants were taken completely off. e. V.N. said that C.N.B. only hit her with a belt when they were alone, but she was contradicted by P.C. on this point. V.N.’s evidence was that she did not remember whether her mother was at home when C.N.B. hit her. She said that her mother could have been at home, but that she did not see V.N. being hit with a belt as that was not done in front of her mother. In my view, P.C. could have been aware that V.N. was being hit with a belt even if she was not in the room while it was happening. Most importantly, the evidence of both V.N. and P.C. was that C.N.B. hit V.N. with a belt both in the Condo and in their prior residence, i.e., when V.N. was 7 years old or younger. Because she was very young, V.N. may not remember all the incidents. Among other things, V.N. did not give any evidence regarding the Ice Cream Incident, which is alleged to have occurred when she was only two years old. Therefore, I find that this alleged discrepancy is not a real one and can be explained. f. V.N.’s evidence regarding M.N. having a phone during the Bed Incident was odd and inconsistent with P.C.’s evidence regarding the number of phones in the home. In my view, there is nothing inherently odd or improbable in the evidence of V.N. that M.N., who would have been approximately 2 years old at the time of the Bed Incident, was playing games or watching videos on a phone, and that V.N. was asked to watch her and help her if she had issues with the phone. The fact that V.N. may have been mistaken as to the ownership and/or provenance of the phone used by M.N. is insignificant and relates to a peripheral matter. g. V.N.’s evidence in her video statement and during her preliminary inquiry was that there was only one Touching of Penis Incident, but V.N. said at trial that this happened two or three times. I reject the defence’s argument that V.N. came up with this evidence at the last minute in an attempt to make matters worse for C.N.B. I find that V.N. was attempting to be truthful on this point and, as stated above, V.N. did not display any tendency to exaggerate or embellish during her evidence. I also note that V.N. was not very definitive in her video statement about this type of incident happening only once. [2] While I find V.N.’s evidence credible on the issue of the number of incidents, I do not find it reliable. In the absence of the notes that V.N. said she found while cleaning her room or more information about the contents of such notes, it is not possible to test the reliability of V.N.’s “refreshed memory”. However, the fact that I do not find V.N.s’ evidence reliable regarding any additional incidents involving the touching of C.N.B.’s penis does not affect the credibility and reliability of her evidence regarding the one Touching of the Penis Incident about which her evidence has been consistent. h. V.N.’s evidence regarding bruises was not consistent with her mother’s evidence. V.N.’s evidence on where she had bruises was not very clear. While she repeated a number of times that she had a lot of bruises, she also said that the bruises were mostly on her back and were not visible because they were covered by her clothes. Some of the statements she made on this issue appear to be related to bruises resulting from being hit with a belt, and not necessarily to bruises resulting from C.N.B. hitting her with his hand. P.C.’s evidence was that she sometimes saw red bruises on V.N., including on her arms, legs, back and face/forehead. P.C.’s evidence was that the hitting started when V.N. was quite young. Because she was very young, V.N. may not remember all the incidents, whether she had bruises and where the bruises were. Therefore, I find that there is a common-sense explanation for the discrepancy on this point. I also find that it relates to a peripheral matter.

[148] Defence counsel also argued that it was not plausible that V.N. would not have complained to her mother about what C.N.B. allegedly did to her and, in particular, the fact that she allegedly had pain for a couple of hours after C.N.B. touched her vagina. However, it has been recognized that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. 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. See R. v. D.D., 2000 SCC 43 at para. 65.

[149] Here, V.N. gave evidence as to why she did not tell her mother about the sexual touching. She said that she did not know how to tell her mother and that she was scared of her father and of what would happen to her and her sister given that her father used to hit her and her sister a lot. Given C.N.B.’s admitted controlling and violent personality and behaviour, V.N.’s explanation makes sense. In my view, the delay in disclosure does not have an impact on V.N.’s credibility.

[150] I also reject defence counsel’s suggestion that P.C. and V.N. colluded to make up a false story in order to keep C.N.B. out of the Condo. There is absolutely no evidence supporting this allegation. The fact that P.C. was able to retain a family lawyer and have him file documents within 48 hours of the assault on June 15, 2021 is not unusual – urgent situations often arise in family matters – and does not in itself support the conclusion that she had already retained a family lawyer prior to the assault. Further, there was no need for V.N. and P.C. to do anything to keep C.N.B. out of the Condo because he had already been arrested for assault against P.C. and was subject to conditions that prevented him from coming to the Condo. In addition, I note that C.N.B. is not a registered owner of the Condo. P.C. and her mother are the registered owners.

[151] As for P.C., I also found her to be a credible and reliable witness. Like V.N., she was straightforward when answering questions, and she did not seek to exaggerate or embellish things (or make them worse). Her evidence was internally consistent.

[152] Many of the issues raised by defence counsel regarding P.C.’s evidence are addressed above. Defence counsel also argues that it is not credible that P.C. would have let V.N. shower with C.N.B. until she was 9 years old. P.C.’s evidence was that while she knew that C.N.B. went into the shower with V.N. when she was smaller, she was not sure whether C.N.B. was showering at the same time than V.N. when V.N. was older. The fact that C.N.B. was in charge of ensuring that V.N. took her shower and was in the bathroom while she was taking her shower does not necessarily mean that he would be in the shower with her at the same time, naked. Further, and in any event, P.C.’s behaviour is consistent with a parent who does not suspect any sexually inappropriate behaviour between the other parent and their child and who trusts the other parent to take care of the child, which is what P.C. did while she was working. P.C. explained why she had no concerns while it was taking place and pointed out that V.N. was slender at that time and not developing.

c. Conclusion

[153] Having reviewed the whole of the evidence and the witnesses’ credibility and reliability, I conclude as follows: a. I do not believe the evidence of C.N.B. with respect to the various counts. I also do not believe the exculpatory evidence given by C.N. b. The evidence adduced by C.N.B. does not leave me in reasonable doubt. c. On the basis of the evidence that I accept, including V.N.’s evidence (except for the alleged additional occurrences of touching of C.N.B.’s penis), P.C.’s evidence and parts of C.N.’s evidence, I am convinced beyond a reasonable doubt by that evidence of the guilt of C.N.B. on all counts.

[154] I find that the essential elements of each count have been established beyond a reasonable doubt. While I have turned my mind to the essential elements of each offence, a more detailed discussion is unnecessary given that this was not the focus of the parties’ submissions (or the case in general).

D. CONCLUSION

[155] The accused, C.N.B., is found guilty of all twelve counts before the Court.

[156] Count 7 arises from the same conduct captured in count 8, and the facts underlying the convictions are the same. The same can be said with respect to Counts 9 and 10, and Counts 11 and 12.

[157] While the issue of multiple convictions for the same offence was briefly addressed by defence counsel during his submissions, the Crown did not make submissions on the issue.

[158] Counsel’s submissions with respect to sentencing should include submissions with respect to the rule against multiple convictions for the same offence, whether any counts should be stayed further to this rule, and, if so, which ones.

Vermette J.

Released: May 14, 2024

Footnotes:

[1] C.N. testified that he came to Canada approximately four years ago, i.e., in 2020, and that he lived in the Condo for only a year or two. Given that C.N.B. was arrested on June 15, 2021, C.N. would not have lived under the same roof as C.N.B. and V.N. after that date.

[2] When V.N. started talking about the Touching of Penis Incident in her video statement, she was using the word “sometimes” (e.g., “sometimes he would make me grab his thing”). When V.N. was subsequently asked how often this happened, she said: “That probably just happened that I remember, once.”