Reasons for Judgment

Introduction

N.D.H. is charged with the following offences involving the same complainant between January 20, 2020 and May 25, 2023:

a. Sexual assault, contrary to Section 271 of the Criminal Code of Canada;

b. Sexual interference by touching, contrary to Section 155 of the Criminal Code of Canada;

c. Invitation to sexual touching, contrary to Section 152 of the Criminal Code of Canada;

d. Make available pornographic material, contrary to Section 171.1(b) of the Criminal Code of Canada;

e. Deprive the complainant of her phone for the purpose to compel her to abstain from being a victim of a sexual assault, contrary to Section 432(1)(a) of the Criminal Code of Canada.

A ban on the publication of the complainant’s identity and any information to serve to identify her is in effect.

This is the decision of the court in this case.

The Legal Issues

The ultimate question in this case is whether the Crown has proven the case beyond a reasonable doubt. The key issues are credibility and reliability.

Applicable General Legal Principles

The test in a criminal trial is not which side I believe more but whether the Crown has proven the offences beyond a reasonable doubt. All of the evidence must be considered in determining whether the Crown has met its burden.

N.D.H. is presumed to be innocent unless and until the Crown has proven the offences beyond a reasonable doubt. Reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

In assessing the credibility of the witnesses in this case, I also apply the principles articulated by the Supreme Court of Canada in R. v. W.D. as applied by subsequent cases and commentary such that:

a. I cannot properly resolve a criminal case by deciding which conflicting version of events is preferred;

b. If I believe evidence that is inconsistent with the guilt of the accused, I cannot convict the accused;

c. Even if I do not entirely believe the evidence inconsistent with guilt of the accused, if I cannot decide whether that evidence is true, there is a reasonable doubt, and the accused must be acquitted;

d. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of evidence does not prove guilt; and

e. Even where I entirely disbelieve evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.

In this case the complainant and her mother testified for the Crown. The defendant also testified.

In assessing credibility of these witnesses, I have considered the general integrity and intelligence of the witness, each witness’s opportunity to observe, capacity to remember and accuracy in statements, some of which will be referenced in this case. All of the witnesses appeared to be honestly endeavoring to tell the truth.

The important issues in this case are that of the witnesses’ credibility and reliability. A valuable means of assessing the credibility of a witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. I also have assessed what is testified to in the context of all the evidence in the case and not on an isolated basis including any inconsistencies and whether these are inconsequential or material and significant to the case. The court has paid careful attention to significant inconsistencies when assessing the reliability of the witness's testimony as will likewise be referenced.

The role of confirmatory and contradictory evidence can be especially important when assessing the evidence of some witnesses. Confirmatory evidence need not directly implicate the accused or confirm a Crown witness’ evidence in every respect. Confirmatory evidence should be capable of restoring the trier's faith in the relevant aspects of the witness' account. This will be commented upon later in this decision.

Summary of the Crown’s Case

The defence admitted at the outset of trial both identity and jurisdiction in this case. The offences are all alleged to have occurred in the defendant’s home.

N.D.H. and S.C. met online and soon commenced a relationship. S.C. is the mother of the complainant, R.C., and a younger daughter, E.C. S.C. and her young daughters all came to reside together with the defendant at the residence owned by the defendant in the City of Brantford where the defendant’s mother, G., also resided.

The residence they occupied is a two-story home over a period of five to six years. The entrance, kitchen and living room areas were on the main level, bedrooms were on the 2nd story and there was a basement that was used mainly for storage, some gym equipment and a room dedicated to “Betty Boop” collectibles of G’s.

All of the individuals' bedrooms were on the 2nd story. The complainant, R.C., and her younger sister together had one room. In this room, the children initially slept in a bunkbed and then each had their own separate bed in the same room. The door of the children’s room had been removed early on and there was no door on this room at all relevant times.

The defendant and S.C. had the master bedroom that also had a sitting area with a television. G. had her own bedroom. All rooms were in close proximity to each other, and all witnesses agreed that the floors, stairs, doorways throughout the home including the bunkbed were creaky and the sounds of movement was readily heard throughout the home.

During the period that the parties lived at this home, the defendant worked at a fast-food restaurant except for a brief time toward the end of the relationship. He now works as a labourer at a steel manufacturing business. The mother, S.C., also worked initially on various shifts which varied during day and evening hours and overnights as a PSW. She was eventually successful getting regular full-time hours. Both children regularly attended school and an after-school program from 3:00 to 5:00 pm. The relationship and these living arrangements ended when these charges arose.

During submissions, the Crown indicated that the time-period of the offences, based on the cross-examination of the complainant, were now narrowed to the period of May 2022 to May of 2023.

S.R., the complainant’s mother, testified for the Crown. Overall, this court was impressed with her testimony which can be characterized as fair, balanced and reliable. She provided her evidence in a caring, thoughtful and straightforward manner. This court had no concern accepting her evidence.

She testified as to the relationship with the defendant and then moving with her children to the residence of the defendant where G. also resided and took on a significant role as to the care of the children over the years. She also testified as to the layout and creakiness of the home. She is and was an attentive mother and no doubt is a dedicated, caring and perceptive person as a PSW. She enjoyed a close relationship with her children and was in frequent communications particularly with G. by telephone while she was at work. This court found that she did not in any way influence the testimony of the complainant that may cause the court any concern.

The complainant, C.R., testified by CCTV at this trial. She is now 11 years of age. The video interview of her with the investigating officer from May 26, 2023 was admitted during and formed part of her testimony.

In summary, her testimony is that sometimes, when her mother was home and she was busy and when she was away at work during the day and at nighttime, the defendant would keep bothering her to do “fun time” which she said was “rub” or “ice cream”. This happened “two or one times” a week. She could not recall, when she gave her police interview, when the last time this happened nor the first time it happened. She said that she had been saying “no” a lot to the defendant’s requests for fun time and that the defendant punished her by taking her phone away. She would get her phone back “for saying yeah” so she could text her dad and stuff.

She indicated that the defendant would ask for fun time “every time Mom goes to work”. She indicated “either, I would answer a yes or no or maybe, I don’t know actually” and later said “the other day he asked, I said no…then he asked again. But I normally say yes to make him stop bothering me”. She said there was one time that “rub” occurred on the defendant’s bed when her mom was at work. She went onto the bed and the defendant took out his penis, the defendant would not really say anything and then his penis exploded with white stuff.

She indicated that this sexual activity happened lots of times, but she did not remember them all. Once it was “ice cream”, he made “it exploded in my mouth, I didn’t want to do it” and she spit it out. She later said it was one time that it exploded in her mouth because the other times she refused if it exploded in her mouth. She also said she did ice cream one or two times. Most of the times it was “rub” on the bed or, if her mother was around and doing dinner, they would go to the “Betty Boop” room in the basement. She was wearing a nightgown or her clothes that he would take off including her skirt and underwear. She later said that “rub” and “ice cream” happened one time each in the Betty Boop room.

The evidence of the complainant at times was difficult to follow, somewhat vague and unclear in some respects. For example, the assertions of “ice cream” events varied. The other “rub” activities and “ice cream” collectively always occurred when her mother was at work which would imply a substantial frequency. In cross-examination she agreed that her mother almost always tucked her into bed, except for one or two occasions when the defendant did.

The complainant’s testimony was initially that these events happened when her mom was away because “she had to be with N”. She then disagreed that G. was the main person who babysat her and her sister when her mother went to work and said it was both G. and the defendant. She later agreed she testified at the preliminary inquiry that G. would be the one who really watched over her and her sister and babysat her.

There were some features of significance and inconsistencies in relation to the rub incidents which she initially testified to and indicated occurred while always lying on the bed. She testified to a rub incident occurring in the “Betty Boop” room. She later admitted there was no bed in that room. She testified this event occurred when lying on the floor in the room. The evidence of all other witnesses was that there was no bed in that room. The complainant also admitted she indicated to police that the defendant started to yell at her during the rub incident. She then testified it would be a “mid-yell” but had also testified the defendant didn’t yell. She later agreed she was not actually sure if the defendant yelled or not.

Such inconsistencies on significant features of these allegations remained unexplained and unresolved.

These discrepancies could neither be explained away as confusion or arising from an intense cross-examination. Outside of the allegations of sexual misconduct, the complainant had also testified that at the preliminary inquiry the defendant took away the electronic devices only because they didn’t like what she was looking up on those devices. At trial, she testified it was for that reason and also because the complainant wouldn’t do fun time for the defendant. This additional change in evidence was likewise unexplained and, in any event, did not provide any sufficient evidential basis as to the final count of the deprivation of the cell phone.

The significant frequency, nature and the locations of assaults as described by the complainant were difficult to clearly understand or reconcile when others were always in the home including the complainant’s sister and G. and given the nature of the home. The evidence raised by the defence was established and uncontroverted – such frequent movements in and within the home generally would not go completely unnoticed given that creakiness and sounds between the beds, rooms, the stairways and the floors in the home, especially over many months and possibly years, given the number of occupants and the complainant sleeping in the same room as her sister in a room without a door.

The complainant was somewhat muted, wavered, and disjointed in her efforts to articulate what may have transpired. None of these comments are criticisms of the young complainant in any way. The video of the interview of the complainant was also filed as an exhibit as was the transcript of the interview, both of which the court subsequently revisited to come to as clear as possible an appreciation and understanding of the complainant’s evidence. Fairly and realistically stated, it was difficult to find this court could be sure what actually happened; when, where and how many times and over what period based on the testimony of the complainant.

The complainant’s testimony ultimately left this court with important concerns on significant points and issues. For example, if the misconduct alleged occurred with the substantial frequency of one or two times a week over a substantial period of months or years, this factually is substantially different than just on one or two times a week over a relatively short period of time.

The factual context of the evidence may become an important backdrop when assessing the reliability and veracity of the allegations and totality of the evidence. Shifting contexts in the evidence alert the court to be more careful to assess the reliability and associated concerns of the evidence. Such is the case here. Our Court of Appeal has in the past commented on the changing number of allegations by a complainant such that this may reflect a carelessness with the truth and goes to reliability of the evidence.

In the end, the complainant’s admission on cross-examination that she was not sure how many times the misconduct happened per week. This added to the reliability concerns of the testimony of the complainant that were apparent from her in-chief evidence.

The cross-examination of the complainant also focused on the approximate two-month period of time from the taking-away of the tablet and the cell phone of the complainant by the defendant to the time of making the allegations giving rise to these charges. The defence submitted this supported the basis of the motive for the complainant to fabricate an allegation since she was upset to have her cell phone taken from her.

The evidence from all witnesses was that the complainant’s search history on an electronic device she shared with her younger sister led to the devices being taken away, her cell phone kept from her, and she wanted her cell phone back. This upset the complainant since she used the phone daily to play games, watched YouTube videos, and contacted her friends and her father.

The inappropriate internet search history by the complainant was discovered by the defendant and made known to G. and the complainant’s mother. There was some evidence that the complainant may have attributed the searches to her younger sister. It matters not for this decision to consider this evidence nor does the court make a finding in this regard. There was also some suggestion by defence during the trial to link the basis of the nature of the allegations with the nature of the subject internet search. This court places no consideration of this feature in this decision. Simply put, the nature of the search is not relevant.

The same can be said as to the complainant’s evidence in relation to G. who had much more frequent presence and involvement in the lives of both children. G’s significant involvement in relation to both children was substantiated by the testimony of the complainant’s mother. There were some other significant discrepancies between earlier statements to police and at a preliminary inquiry. It will not be necessary to address this further other than to note this has been considered by this court. The court finds the taking away of the electronic devices by G. and the defendant from the complainant, did upset the complainant who wanted her cell phone returned.

In the context of the other evidence in this case, this feature also looms as a significant feature in the evidence. This court finds this evidence did tend to support the defence, particularly the testimony of the defendant as well as the defence position as to the complainant’s motive to fabricate an allegation against the defendant. Also, based on a consideration of all the evidence as fairly weighed, this court finds this feature negatively affected both the credibility and reliability of complainant’s evidence.

This court is mindful that the complainant was testifying to events that would have taken place as a young person who is now eleven years of age who is relating matters from two or more years ago now. This court is most aware that the presence of inconsistencies or testimonial features of children, particularly as to peripheral or apparent problematic matters such as time and location and specific details, should be considered in the context of the age of the witness at the time of the events to which the witness is testifying. The court must always take care to consider all of the circumstances and not conflate nor consider evidence in the same way as adult or even adolescent witnesses.

In addition, this court is most mindful and cognizant to avoid impermissible stereotypes or making findings not on the evidence or absence of evidence. Victims of sexual assaults do not have to raise the alarm or continuously fight back. It is well-recognized by the court that to do so otherwise entertains such pernicious and impermissible stereotypes. This type of reasoning simply should not be permitted. See R. v. Davidson, 2018 ONSC 3426.

Furthermore, even though there is evidence that the complainant maintained substantial and ongoing contact with N.D.H. after all incidents complained of, this court places no consideration on this evidence in this case. The court must not place any reliance on stereotypical views as to how victims of sexual assault would behave including any expectation that a victim of sexual abuse would make attempts to avoid the perpetrator. See R. v. A.B.A., 2019 ONCA 124 and R. v. A.R.J.D., 2018 SCC 6.

The Defence Case

I have also carefully reviewed the defence evidence of N.D.H. who testified. He denied any sexual impropriety or associated conduct with the complainant. He was also cross-examined at length.

N.D.H. is certainly not a sophisticated witness. He was certainly nervous and most anxious throughout his testimony. He had a simple, unsophisticated, and unforced manner throughout both his evidence in chief and on cross-examination. He was respectful and not combative, both in chief and in cross-examination. He was responsive and polite at all points in his testimony.

There was a cogency and coherence in the defendant’s evidence with few, if any, inconsistencies or problematic features, that undermined his credibility or reliability. This court finds there is no basis for the rejection of his evidence. I am mindful of the Crown’s final submissions in relation to the case of R. v. J.J.R.D., 2016 ONCA 441. The court in this case cannot come to a rejection of the defendant’s testimony based on the findings as mentioned earlier regarding the evidence of the complainant.

I am also aware that it is my duty to evaluate the accused’s evidence in the context of all of the evidence adduced at trial. I have assessed the accused’s evidence in light of the whole evidence and, in so doing, compared his evidence with that of all other witnesses. This court cannot and ought not to reject his evidence on this record.

Findings

This court does not reject the evidence of N.D.H. On this basis alone, an acquittal is granted.

Even if the court rejected N.D.H.’s evidence in relation to all of these incidents, this court finds there were concerns with the overall credibility and reliability of the evidence of C.R. as mentioned. The problematic features of her evidence as outlined earlier do not leave the court with confidence in the reliability of her evidence. In view of these doubts and concerns, the proof of the offences is insufficient. The court cannot make a finding of guilt beyond a reasonable doubt on this evidence.

Conclusion

In summary, based on the test established in R. v. W.D., I cannot reject the evidence of the defendant. I find the Crown has not discharged its burden to prove essential elements of the offences charged beyond a reasonable doubt based on the insufficiency of the evidence and the reliability and credibility concerns in the Crown’s case as referred to earlier.

For these reasons provided, the charges against N.D.H. are dismissed.

Justice M.D. McArthur

Released: February 18, 2025