R. v. J.N., 2021 ONCJ 292

CITATION: R. v. J.N. , 2021 ONCJ 292 DATE: February 22, 2021 Information No. 2811-998-19-33870-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. J.N. R E A S O N S F O R J U D G M E N T INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4 and 517(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE OF THE PEACE M. HEWITT, ONTARIO COURT OF JUSTICE, DATED FEBRUARY 22, 2019 REMOTELY BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on February 22, 2021, for an OSHAWA, Ontario proceeding APPEARANCES : K. Pollock Counsel for the Crown S. Fraser Counsel for J.N. WAKEFIELD, J . (Orally): J.N. is charged that he committed the offences of sexual assault, sexual interference upon the seven-year-old daughter of his fiancé.

The case of the Crown consisted of the complainant, the complainant's video statement, and the complainant's biological father, who also brought a video. The defendant testified on his own behalf, thereby engaging all three branches of W.(D.) . J.N. acknowledged a prior record consisting of a 2007 conviction on four counts of sexual assault, resulting in a sentence of a three- month conditional sentence, followed by two years' probation. He further acknowledged a 2013 conviction for sexual assault resulting in 45 days incarceration, followed by two years' probation.

I previously ruled on a Crown similar fact application with respect to the victims of the defendant's prior crimes, all of whom were adult women. The facts agreed to on the earlier conviction, I found, were too remote in time, and too dissimilar to accept, even with a low threshold standard of admission. However, the more recent conviction was more proximate in time, factual sequence of actions to permit the Crown similar fact application on that single victim, notwithstanding the many dissimilarities. I remind myself, and I instruct myself to not rely on propensity reasoning.

The complainant testified that she shared a bedroom with two younger siblings. She was in her bed, which is a bunk bed in which there is no lower bunk, but did have a ladder to climb up to the upper bed. At the time of trial, she was eight years old and in Grade 2, which would mean she was seven years old at the time of the allegations. She described in her video statement that she was in Grade 1. She described a field trip; she then described the defendant doing something weird, that he would, "put his penis on her vagina." It would only occur at nighttime.

While some of the video statement is inaudible, she clearly said that she did not like it, and she said it happened more than once. She described it occurred when she was in her bunk bed and the defendant would climb up "the stairs," which I infer, meant the ladder to her bunk bed. She would then see the defendant's big glasses. He would put his penis on her vagina and put it up and down while she was lying on her back, and while he had his tummy on top of her tummy. He would then climb down and go to bed. This motion with his penis would be on top of her pyjamas.

She described the only weird stuff the defendant did with her was rubbing himself on her at night. She described the defendant's glasses and that he had grey hair. I do appreciate that she would have known this about the defendant from his living in the same household. However, she did describe seeing his glasses first as he climbed up onto her bunk bed. I also note that these occurrences would have occurred when the complainant's siblings were in the same bedroom, however, there is no inference or suggestion that they woke up. The complainant also confirmed that her father did not like the defendant.

In cross-examination, there are also a lot of, "I don't knows," answers consistent with her age. The complainant's father testified as to a conversation he had with his daughter, as well as using his phone to video her demonstrative actions on the bed when describing what the defendant's movements were on top of her. This inquiry by her father arose from his overhearing the complainant telling her brother in the bathtub together, not to do something; that it was gross and that was what "J. does to me." The father denied saying or doing anything to prompt the complainant, saying anything in the bathtub.

However, he did ask the complainant what she meant, and he testified that she told him about the defendant putting his penis on top of her. In the bedroom at the father's residence, she demonstrated what he did by saying a pillow was her vagina, and then lied on top of the pillow and rubbed her body back and forth on top of it. Again, the father denied in any way prompting her and did not expect what occurred.

The father confirmed that at the time their ongoing family court proceedings regarding custody and things were already looking in his favour. I take that to mean that there was no need to make the home life of the mother of the child a more difficult or dangerous place. He described the complainant's mother having weekend access with which he was comfortable. He denied having any concerns with weekend access, and that his relationship with the mother was civil, though there was some hesitation in choosing the word, civil.

Overall, while I have cautioned myself regarding potential bias, I note that other than the ongoing family proceedings, and the complainant's belief that the father did not like the defendant, though unknown as to when that dislike may have started, that is to say before or after the allegations came to light, I have no evidentiary basis to discount or reject the father's testimony or video recording. In cross-examination, the father confirmed that he had prior knowledge of the defendant's prior criminal record for sexual assaults, but later clarified, in reply, that he not been told any details.

He agreed that he had concerns regarding the matter with the Children's Aid Society was investigating what his daughter had disclosed, as they had only talked to the complainant's mother, not to him. This prompted the father to escalate the issue to the caseworker's supervisor. Again, in my view, that would not be an unusual request by a custodial parent regarding CAS supervision of the access parent's situation. I do not accept that course of action by the defendant undermining any way his relaying the overhead conversations from the bathtub, or his videoing the child's demonstration on the pillow.

The defendant testified as to his relationship with the complainant's mother and the complainant. He had been in four to five-year relationship with his fiancé prior to this alleged incident. He regularly acknowledged visiting the complainant's mother's house, and as the relationship developed, to stay overnight. The overnight visits commenced prior to the mother regaining custody of the complainant, or at least access to the complainant, and prior to an initial weekend access, in which her children would also stay with her for a weekend.

Apparently, his presence within the residence was not hidden from the Children's Aid Society, and his ability to stay overnight at the residence was temporarily suspended pending and obtaining the approval of the Society for him to visit the house. Those overnight stays extended on some occasions for both nights. The defendant denied any form of sexual assault or of any assaults, implicit or actions.

In cross-examination, the defendant clarified his relationship with his fiancé was only about two years, and the longer period of time that was earlier suggested was due to the wording of the defence counsel's question. I note that his confusion over actual dates of when he became engaged would quite possibly be a confusion shared by many people in relationships, and I do not see this in any way undermining the credibility, reliability of the defendant by that issue alone. The defendant acknowledged trying to build a relationship with the complainant and her siblings as part of the relationship with the fiancé.

He asserted that such activities were always with the participation of his fiancé. He also confirmed that he felt he had a good relationship with the children, and was unaware of any animus by the complainant towards him. Similarly, he was unaware of any animus towards him by the complainant's biological father. I note the defendant being unaware of any animus by another party is not the same as saying that there was not such animus, especially when in the context of family court proceedings and the restructuring of a family unit.

I also note that his confirmation can potentially add to the credibility of the defendant, for buttressing the lack of animus on the part of the complainant and her father. The defendant confirmed that he consistently wears eyeglasses and does not use contact lenses. The defendant confirmed the factual underpinnings of his prior convictions without hesitation. He confirmed the second conviction for sexual assault was a result of the rubbing, and then the grinding his genital area against an employee while touching her buttocks. He agreed the purpose of such actions was for a sexual gratification.

The employee in question was an adult. The factual underpinning was unclear if that sexual assault was a breach of trust or not, that is, whether the defendant was a co-employee, or had a valid supervisory role, given his relationship with the owner, and control of paycheques. While the alleged sexual assault on the complainant is clearly a breach of trust, that is not reinforced by the sexual assaults on the co- employee victim, as in my view, the employee assault is a very different type of trust breach if there was a breach.

The circumstances of the defendant grinding his penis into an adult woman is a very different type of assault than on a seven-year-old girl, other than both were in circumstances of some vulnerability; one in her own home, and the other being enticed into a more private setting within the story. As well, there is a commonality of the specific type of assaultive action in both examples, that being the grinding of his pelvis on a victim.

In the sentencing of the defendant from the 2013 charges, it was asserted the defendant suffered from a psychiatric condition, which would explain the arousal from grinding his penis against the victim. Both Crown and defence jointly agreed that I should not consider that mental health issue in assessing the evidence in this trial.

Given that common ground in this trial, I have disabused myself of the defendant's condition, and by doing so, in my view, the similar fact evidence is substantially diminished in weight, as essentially, what is being described as a dry humping, which is not uncommon in early relationships, as opposed to any other explanation, albeit one, in the circumstances of the charge, clearly not consented to by the victim of the 2013 conviction.

I also remind myself that W.(D.) is not a credibility contest, but rather an analysis of the evidence. For the defendant, like many otherscharged before the criminal courts, he can have no more than a denial. These types of offences so often occur in private settings in whichthere is no other independent evidence with which to determine what occurred. Indeed, in submissions, the Crown focused mostly on the credibility and reliability of the complainant and did not suggest a lot as to thatof the defendant who did testify, thereby engaging all three branches of W.(D.).

Taken in a vacuum, the defendant did withstand cross-examination. By itself, his testimony would not be discounted in either of the firsttwo branches of W.(D.); however, as I understand the law, I must assess the defendant's testimony in light of the entirety of the evidenceat trial. In a concise trial such as this one, does the totality of the Crown case amount to proof beyond a reasonable doubt, resulting in anevidentiary basis, with which to reject the defendant's denials. Were the Crown case simply one of two opposing consistent versions ofevents, then W.(D.), in my view, would require an acquittal.

Even if not, should the defendant's testimony result in there beingreasonable doubt, the required verdict is clear. Here the complainant's testimony is consistent and carries internal, specific details whichadd to her reliability, such as the description of the defendant climbing the steps to her bed and seeing his glasses. As well as thecomment about Christmas, the direction to her brother in the bathtub to stop, as it was the same gross thing the defendant would do, andthe video demonstration of how the defendant would rub against the complainant, prepared by the father.

In my view, those details and the video re-enactment, adds the same level of corroboration as was found in the J.J.R.D. line of cases, R.v. D (J.J.R.) (ON CA), [2006] 215 CCC (3d) 252, referenced in R. v. Dinardo 2008 SCC 24 , [2008] 1 SCR788. In my view, the diary in the J.J.R.D. case parallels what prompts the video taken by the complainant's father. As in R. v.

G.C.[2006] OJ No. 2245, it is not that the complainant demonstrated a sexual assault in the video, but rather the manner in which theevidence was adduced, first by the overheard conversation, and then by the complainant, demonstrating as well, as her categorizingbehaviour as weird stuff and gross. That evidence added to the logical cogency of the complainant's evidence and a useful tool for me toassess the complainant's truthfulness and reliabilities as set out in R. v. G.C. paragraph 22.

Based on that corroborative evidence, I accept the evidence of the complainant, together with the video of the overheard conversation byher father, as proof beyond a reasonable doubt, against which, I now reject the defendant's denials. As such, J.N., I find you guilty of both the sexual assault and sexual interference. * * * * * * * * FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Laura Rowsell, certify that this document is a true and accurate transcript of the recording of R. v.

J.N., in the Ontario Court of Justiceheld on February 22, 2021 at 150 Bond Street East, Oshawa, Ontario, taken from Recording No.2811_408_20210222_090336__6_WAKEFIG, which has been certified in Form 1. Date: May 13, 2021 "ELECTRONIC COPY"

Laura Rowsell, Authorized Court Transcriptionist #1611571159 orders@courtreporters.ca 905-440-2053