R. v. N.M., 2023 ONCJ 254

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. N.M. , 2023 ONCJ 254 DATE: 2023 06 14 COURT FILE No.: Toronto 21-45001755 BETWEEN: HIS MAJESTY THE KING — AND — N.M. Before Justice Christine Mainville Heard on May 1, 2 and 16, 2023 Reasons for Judgment released on June 14, 2023

G. Elder................................................................................................. counsel for the Crown C. Gill................................................................................... counsel for the defendant N.M.

Mainville J.: [ 1 ] N.M. is charged with having sexually assaulted and sexually exploited his step-daughter, A.D., on the 11 th day of May 2021, in the home where they resided at the time in Toronto. [ 2 ] The Crown called A.D. as its only witness, and filed an audio recording she made on the day of the alleged events – on her account, immediately after the incident occurred in her bedroom. N.M. testified in his defence, as did R.C., his wife and A.D.’s mother. [ 3 ] N.M. is originally from Ghana and moved to Canada in 2017, at which time he also began residing with R.C. and A.D.

A.D. testified that when that occurred, she felt that she had lost her mom who was no longer giving her the kind of attention she used to have. She did not get along with N.M. at this time. Indeed all three parties testified that this led to many arguments such that A.D. then went to live with her grandmother for a period of time. In or around 2018, A.D. returned home and things between her, her mother and N.M. improved. [ 4 ] A.D. testified that she has not had the best relationship with her mother since N.M. moved to Canada.

She also testified that upon her return home, her relationship with N.M. was not too bad, although there were arguments here and there. [ 5 ] N.M. and his wife testified that while things had indeed improved since 2018, that changed when A.D.’s biological father re- entered her life in late 2020. A.D. started distancing herself from N.M. again. N.M. and R.C. confirmed A.D.’s own testimony that after she began spending more time with her father, she wanted to change her name to her previously-absent father’s name, and that this caused arguments in the home.

Her mother was not happy about this, suggesting she wait until she was 18 to make sure her father stayed in her life before changing her name. A.D. agreed this was a big cause of strain in their home shortly before the allegations against N.M. arose. [ 6 ] R.C. testified that A.D.’s biological dad picked her up a few times then stopped again, and that A.D. then wondered whether she had made the right decision in looking for her dad. N.M. also testified that her dad wasn’t calling her as much in the weeks leading up to the incident.

N.M. indicated that during that time, in the weeks leading up to the alleged incident, things were good between him and A.D. [ 7 ] On May 11, 2021, all witnesses in this trial agree that N.M. helped A.D. set up LED lights in her bedroom, replacing a previous set of LED lights that was hanging on the wall around her bedroom. While N.M. was in A.D.’s bedroom, there was a discussion about her looking into the attic above her bedroom to see what was there. There is a framed opening covered with a Styrofoam and/or wooden board on the ceiling of the bedroom, right when you enter the bedroom door.

All testified to A.D. being afraid of mice or rats being up there. N.M. sought to reassure her and offered to help her up to peer in and see that there was nothing to be concerned about. Testimonies diverge about what happened next. [ 8 ] A.D. alleges that in order to have her peer into the attic, N.M. lifted her up by the waist with one hand on her buttock area, and that that hand touched her vagina over her clothing. She indicates this occurred several times as N.M. brought her down then back up as he had to do because she was scared of looking into the attic.

As he would lift her toward the attic, she says he would rub his thumb against her vagina. [ 9 ] A.D. also alleges that after doing this, N.M. fell with her on her bed and then proceeded to remove her pants, lick her vagina, remove his own pants and undergarments, and try to insert his penis into her vagina while she was in a “doggy style” position. She says she blocked his penis with her hand such that there was no contact with her vagina – his penis would have touched her hand and her buttocks and would have been erect. Eventually, according to A.D., N.M. got up and repaired the wood around the attic opening.

She says when his back was turned, she started recording on her phone. The recording ends when N.M. leaves her room after the repair work is completed. [ 10 ] N.M. testified and denied the allegations. He testified that in order to look inside the attic, he lifted A.D. on his shoulders, holding her feet, as he had done on a prior occasion, and at no time did he touch her buttocks or vagina area. He also denied the other sexual acts she attributes to him. [ 11 ] R.C. testified to certain interactions she had with both A.D. and N.M. that day.

She indicated she was in her bedroom one floor below, watching a movie, when these events are said to have taken place. All agree that she was in her bedroom at the time and that A.D.’s aunt and small cousin were also in the house, in the bedroom across from A.D.’s on the third floor of the house. The Principles to be Applied [ 12 ] N.M. is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.

Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that N.M. is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[ 13 ] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, evasive or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.

However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence. [ 14 ] Testimony can be assessed through a non-exhaustive list of factors, including (

a) the plausibility of the evidence; (

b) the presence of independent supporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, (

f) the witness’ demeanour while testifying. [ 15 ] I am entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony. [ 16 ] In assessing the credibility and reliability of the witnesses, I do not simply choose one conflicting version of events over another. Instead, I must apply the framework set out by the Supreme Court of Canada in R. v. W.D.: (

i) If I believe the evidence that is inconsistent with the accused’s guilt, I must acquit him. (ii) Even if I do not believe the evidence that is inconsistent with the accused’s guilt, if I cannot decide whether that evidence is true or if it raises a reasonable doubt in my mind, then I must acquit. (iii) Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt. Instead, I must be satisfied that the evidence I do accept proves the accused’s guilt beyond a reasonable doubt.

The Elements of the Offences [ 17 ] There is no dispute that the elements of the offences charged are made out if I accept A.D.’s evidence in relation to the sexual incidents alleged. Analysis [ 18 ] Given that N.M. testified and denied the allegations, I must first determine whether I believe his evidence. I do. [ 19 ] I found N.M. to be a credible witness. He was forthright, eager to explain and provide answers in response to questions posed, and to clarify answers given. While he often spoke fast and in his answers went far beyond the question asked, I do not assess this to detract from his credibility.

Rather, I attribute it perhaps to his personality but also to his eagerness to explain his version of events and to provide fulsome answers and context to the court. He was steady in doing so and did not at any point become evasive nor did his demeanour change in cross-examination or over the course of his testimony. [ 20 ] Mr. Elder for the Crown fairly recognized that the manner in which N.M. expressed himself, making his testimony at times difficult to follow, could in part be explained by personal factors and did not detract from his credibility.

He did not believe it enhanced his credibility and submitted that it was a neutral factor. [ 21 ] As I have indicated, I generally found N.M.’s demeanour in testifying to be credible. I also deem N.M.’s version of events to be sensible. It does not strain credulity. I do not assess there to be any true inconsistencies that cannot be reconciled or that caused me any serious concern. Despite Mr. Elder’s valiant efforts, N.M. withstood cross-examination well. [ 22 ] Nor does the audio recording detract from his evidence or otherwise allow me to conclude that he is guilty.

The recording begins with N.M. asking A.D. if she is going to help him. She says no and he asks her why. She says she doesn’t want to. You then hear a lot of hammering as he nailed things in the bedroom. A.D. is quiet on the recording, occasionally just humming near the phone. [ 23 ] Eventually, there is silence for over 30 seconds – that is, no more hammering. N.M. then says something along the lines of “you keep this one”.

The evidence from everyone was that N.M. was going to take A.D.’s old lights to hang them in his and his wife’s bedroom. [ 24 ] N.M. then asks A.D. if she would help him that evening with his homework. All agreed that N.M. was attending online schooling for Personal Support Workers (PSWs) and that A.D. at the time would help N.M. type up his assignments since she typed much faster than him. [ 25 ] After she said yeah, he asks her in a softer voice if she is OK. She utters the sound “mmm hmm” and he asks “Sure?” She says softly “Yeah I’m Ok”.

Then she adds “what?” He asks, still in a gentle and soft voice, if he can trust her. She says yeah. He responds: “But you look sad, why?” She answers that she is not sad and he again asks if she is sure. She again says “Mmm hmm”. [ 26 ] After this exchange, N.M. indicates that he is going to go do his lights now. There is some discussion about a remote and the two being different. He says he will use “this” for his and his wife’s room too. They then say bye to each other.

After he apparently exits, A.D. whispers “Oh my God” in the recording and the recording ends. [ 27 ] N.M. believes that the audio does not reflect the entirety of the conversation between them that afternoon in the bedroom. He points to the fact that there is a missing conversation about A.D.’s biological father which would have occurred prior to setting up the new LED lights, but around the time when he was hammering nails, which sound can be heard on the audio.

He denies that there was any repair to be done to the attic door as a result of opening it, testifying that the hammering had to do with repairs on the wall or wood near the attic that was the result of prior damage, and that he needed to fix prior to putting up the new lights.

[ 28 ] According to A.D., all of the work related to the LED lights was completed by the time she turned on the recording, and did not entail any hammering. The hammering would have had to do with the attic – seemingly later damage caused when the attic door was opened to peer into it. [ 29 ] A.D. initially agreed with defence counsel’s suggestion that she knew how to merge audio files. This was in the context of questions relating to having sent the audio file to her cousin via Whats App, and having made her mother listen to it.

Later, when the suggestion was made to her that she had sliced two separate pieces of audio together, she denied it indicating that you don’t hear a “cut out” or anything, and that she doesn’t know how to do that. When defence counsel put to her that she had agreed with his earlier suggestion that she knew how to merge two audio files together, she did not deny it but rather asked what that had to do with anything.

In re-examination, she confirmed that she understood that the meaning of the word “merge” is to “put together”, but exhibited confusion about what had initially been asked of her by defence counsel. [ 30 ] While this line of answers from A.D. causes me some concern, I am ultimately not in a position to determine whether the audio file was tampered with or not. What I do note is that there is a lot of hammering heard on the audio, for some period of time. This amount of hammering appears to be a lot for fixing any wood damage that would’ve been caused by opening the attic and trying to peer in, as A.D. suggests.

It seems implausible to me that N.M. would have so readily offered to bring A.D. up to the attic a second time – having poked her head in there once before – if going up there entailed as much repair as is being suggested.

In addition, A.D. testified that N.M. told her he in fact had been up to the attic more than once before, and that he could see her when she was in her room. (N.M. testified that no one can fully fit in the attic as it is full of insulation – that a person can only pop their head in.) [ 31 ] It also seems questionable that so much damage would have been done to the wood around the attic as a result of peering in. In her testimony in chief, A.D. merely described that N.M. “took down the Styrofoam to the attic” when she explained how he went about lifting her up there.

N.M. explained that A.D. had to move the ceiling as he lifted her up so that she could go in. He later mentioned the need to move “the little plywood” over to look inside. I fail to see how this type of opening could create the damage that is then heard being repaired on the audio file. [ 32 ] When it was put to her that looking at the attic didn’t cause damage to anything, A.D. denied the suggestion, indicating that “there was damage and that’s why he used the nails to fix on back the wood around it”.

It was later suggested to her that by the time the lights were hung and the audio recording was turned on, there was no more reason to hear the banging of a hammer on the recording. In response, A.D. indicated that the Styrofoam and wood was breaking when he tried to push her up to the attic, adding for the first time that N.M. was trying to get up there as well. She said that he was looking up there too and the attic wood was breaking. I do not know from her original narrative when or how N.M. tried to peer into the attic.

These answers are troublesome and did not sound credible to me. [ 33 ] The more plausible account is that the hammering related to repairs done prior to there having been any discussion of peering into the attic – as testified to by N.M.

This would make at least that part of the recording more supportive of his version of events. [ 34 ] In any event, even if I accept that the sequence of events captured by the audio recording is accurate and is as described by A.D., the recording does not detract from my estimation that N.M. is being truthful about not having committed the sexual acts attributed to him. [ 35 ] He explained that he spoke to A.D. in a soft voice because she was not being herself as she was being very quiet, lying on her bed and not helping him the entire time he was working.

He explained that there had been an earlier discussion about her biological father which he believed was what was bothering her, and she was not opening up to him about what was going on such that, before leaving the bedroom, he asked her more gently if she was OK and whether she was sure. When she said she was OK, he says he asked whether he could trust her, meaning that he wanted to know if he could trust her when she said she was OK and that there was nothing wrong.

All agree this exchange took place right before he left the bedroom, which makes sense given the subsequent exchange about her helping him with his homework later and him going to put up the old lights in his bedroom, as heard on the audio recording. [ 36 ] The Crown suggested to N.M. that he was whispering when he asked if he could trust her, and that he did so to avoid being heard by others in the house. N.M. stated that he lowered his voice but was not whispering. Having listened carefully to the audio, I agree that he is not whispering, but is talking in a low and soothing or gentle voice.

While the words used may be somewhat curious – asking if he could trust her rather than if she was being truthful about everything being OK – I am cautious about jumping to conclusions on that basis given how different people have different ways of expressing themselves, in particular when English is not the accused’s first language. [ 37 ] The suggestion that N.M. lowered his voice to reference the assaults that are said to have taken place in the bedroom raises the question of nothing else having been heard or noticed by others in the house at the time.

A.D. testified to the walls being very thin, and to being able to make out words from her mom’s own bedroom situated just beneath her. As all witnesses testified, R.C. was in her bedroom during the time when the repair work was being done. Her aunt and young cousin were also in the bedroom right across from A.D.’s on the same floor. While A.D. does not suggest that many words were uttered during the incident, she does indicate that she was saying “no, no, no” and he was asking “why, why, why”.

She also recounts an exchange immediately after the fact where they discussed why she didn’t want to do it with him, and where he asked her to give him a kiss to seal that she wouldn’t tell anyone. [ 38 ] The acts described are not fleeting in nature. She describes oral sex and attempted penetration. She also says that N.M. removed her bottoms and removed his own underwear, shorts and pants – three layers of clothing on his bottom half. They would thus both have been naked from the bottom. There was no suggestion of there being any lock on the door, or that it was locked by N.M.

Anyone could have entered at any time, which was a huge risk for N.M. to take. Even if there was an expectation within the household that someone would knock before entering – which is not something I heard in the evidence – A.D.’s 3- or 4-year-old cousin was also right next door. A small child, of walking age, can certainly barge in at any time. [ 39 ] The Crown submits that N.M.’s account of how he lifted A.D. to the attic should be rejected as being physically impossible. N.M. explained that he crouched facing A.D. and she went on a stepping stool to climb on his shoulders. She would have put her feet on

his shoulders while he held her ankles. N.M. is a fairly tall and large man, whereas A.D. is very petite and slender.

I certainly think he could easily lift her standing on his shoulders, the question being whether he could do so without touching any part of her body other than her ankles and feet, as he described. [ 40 ] Whatever the case may be, and although I am not looking to make any comparison between the two versions of events, I am much more troubled by A.D.’s evidence on this point than by the suggestion that N.M. could not have lifted her in the way he describes. [ 41 ] In her examination in chief, A.D. testified that N.M. lifted her by the waist and buttocks using his hands.

She also at first denied ever going up on his shoulders when it was first put to her in cross-examination. It was only when her police statement was put to her that she acknowledged that she climbed on his back to his neck. It should also be noted that she took a long time reviewing large portions of her police statement, initially evincing uncertainty about what happened. When it was put to her by defence counsel that she put her feet on his shoulders, she denied it and stated she was sitting on his neck, with her legs in front of him. She now wasn’t sure whether he tried to lift her up from his neck.

She subsequently stated that she did not know if she then stood up on his shoulders. When it was again put to her that she stood on his shoulders, she denied it stating it would have been too high. [ 42 ] A.D. certainly did not say anything about sitting on N.M.’s neck in her examination-in-chief. Moreover, when asked how N.M. lifted her up on the previous occasion, a few months to a year prior, she indicated the same way, specifying that he had his finger (thumb) on her vagina and the other fingers on her bum, cupping her up.

The way in which this last answer suddenly emerged made it sound incredible to my ears. [ 43 ] Some of A.D.’s answers also raised reliability concerns. For instance, she was mistaken at trial about when she first disclosed the incident to her cousin, testifying that she had contacted him the same day only to agree upon her memory being refreshed by her police statement that that had in fact occurred a couple days later. This revised answer would also bring into question her recollection that she first told her mother the day after the incident, with her cousin on the phone.

She only told her mother after her cousin had been informed. [ 44 ] A.D. readily admits that N.M. took her place in the house after he came to Canada, and that she didn’t like that – it undermined her relationship with her mother. She says her mother spoke highly of him and had not stood up for her during arguments. Yet, in 2018, on a prior occasion when A.D. made an allegation against another person, her mother did stand up for her and take her side. She may have hoped that this would occur again.

Ultimately, I believe N.M.’s evidence and thus do not place much weight on the possibility that this led her to conjure up these allegations. Had I not believed him, this could have raised potential concerns. [ 45 ] Nor could I exclude beyond a reasonable doubt the possibility that she fabricated the allegations because she was eager to have a more involved relationship with her biological father.

I am not saying that this is what occurred, simply that it is one additional factor that ultimately would prevent me from being certain, beyond a reasonable doubt, that what is alleged is true. [ 46 ] That there may have been an agenda that related to A.D.’s biological father is supported by the fact that A.D. also recorded herself telling her mother about the allegations. She says she did this in case her mother tried to hush her or tell her not to tell anyone.

It seems fair to infer that if she wanted a recording of any such occurrence, it would be so that she could show another person that this was her mother’s response. That person could very well have been her father. [ 47 ] In fact, A.D.’s mother fully supported A.D. when she made a separate allegation against someone else years earlier. In response to the allegations against N.M., R.C. also initially expressed support and indicated to A.D. that she would divorce N.M. – she was on A.D.’s side.

That is, until A.D.’s father, in A.D.’s presence, informed her that in order for them not to go to the police, and for A.D. to return home, N.M. had to get out of the house and she needed to divorce him. I understand from R.C.’s testimony that she viewed this as an ultimatum revealing an agenda. [ 48 ] A.D. did go and reside with her biological father from that point forward. The defence submits that she achieved what she sought to achieve.

While I cannot come to that conclusion, nor do I need to given my earlier findings, the whole of the evidence certainly leaves me with many doubts. [ 49 ] In any event, as I have indicated, on balance, I believe N.M.’s testimony denying the allegations. I am certainly not able to reject it beyond a reasonable doubt. He is accordingly acquitted on all charges. Released: June 14, 2023 Signed: Justice C. Mainville