R. v. A.M., 2015 ONCJ 159

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; Citation: R. v. A.M. , 2015 ONCJ 159 BETWEEN: HER MAJESTY THE QUEEN — AND — A.M., a young person Before Justice F. Crewe Heard on February 9, 10, 11 and 18, 2015 Reasons for Judgment released on March 18, 2015 Ms. A. Derwa ........................................................................................... counsel for the Crown Ms. J. Greenwood ...................................................................... counsel for the accused A.M.

CREWE J.: Overview [ 1 ] A.M. is charged with repeated acts of sexual assault against his step-sister, C.N., from September 1, 1988 to […], 1993, the day before A.M.’s 18 th birthday. C.N. was 8 years of age at the outset, 13 when the alleged abuse came to an end. [ 2 ] The resolution of this case, as with many matters colloquially referred to as “he said-she said” trials, requires a thorough assessment of the credibility and reliability of the witnesses. I heard evidence from C.N., now 35 years of age, her step-brother J.M., now 32 and A.M., who is 39.

C.N. claims she was repeatedly raped by her step-brother A.M. during the above period. J.M. claims that A.M. admitted the sexual abuse to him during a telephone call. A.M. refutes the testimony of both, and denies any sexual contact with C.N. BACKGROUND [ 3 ] The complainant was born in Uganda, and lived there until age 7. Until the age of 5, she was raised by her grandmother. Her mother then brought her to live with her and her husband, B.M., and their children.

The family emigrated from Uganda to Canada in April of 1987, when the complainant was 7. [ 4 ] The combined M. family, during the time period covering the allegations, consisted of 7 children and the complainant’s mother and step-father. C.N. and A.M. have no parents in common, while C.N. and three of her younger siblings, J.M., L.M. and S.M., share the same mother, G.M. All six of C.N.’s step-siblings share the same father, B.M. [ 5 ] After arriving in Canada, the family briefly lived in an apartment on Jamieson Avenue in Toronto, then moved to an address on Pembroke Street.

It is at the latter address where all of the sexual contact that forms the basis for this prosecution is said to have taken place. [ 6 ] The main floor of the Pembroke St. house contained the usual common areas including the kitchen, living room and a room referred to by the complainant as the “random room”, where the children frequently gathered.

The second floor contained the parents’ bedroom, the common bathroom and the bedrooms shared by the siblings, except for A.M., whose room was in the attic. (see Exhibit 1(a)) C.N. shared a second floor room with her younger step-sister L.M. [ 7 ] The complainant initially went to police in 2006 and provided a statement, however no charges were laid. She re-attended police in 2014 upon the urging of her therapist, and the charges herein were instituted shortly thereafter. Brief

summary of the evidence The Evidence of C.N. [ 8 ] The assaults took place in her bedroom. C.N. would lie awake into the early morning hours reading with the lights on in her room, because as long as the lights remained on A.M. would not bother her. The children were not permitted to have the lights on at night and sometimes the complainant’s mother would come into her room, discipline her, sometimes physically, for having the lights on, and turn the lights off as she left.

It was on those nights, after her mother had gone, that A.M. would come to her room. [ 9 ] C.N. knew that A.M. would visit her room after her mother had left. She would “assume the position” and lie with her face into the pillow and her legs tightly crossed so that A. M. could not easily have sex with her. She thought if she lay face up he would think that she wanted him. He would climb on top of her and use his legs to force her legs apart. If she resisted, he would pinch, bite, choke her, or scratch her legs with his toenails. Eventually she would give in and relax her body.

At this point, A.M. would sexually assault her with forced sexual intercourse. C.N. would go to school tired from lack of sleep in the morning. Sometimes she was disciplined by her mother for not wanting to get out of bed. [ 10 ] On weekends, the parents often went out to parties and stayed late, leaving the children alone with A.M., the eldest, in charge. On those evenings he would not wait until the lights were out. When the other siblings were asleep, he would visit C.N.’s room and force her to have sex. [ 11 ] It was always the same.

He never made her commit other sexual acts, nor did he touch, kiss or caress her. He never spoke. He always carried a green towel, and he would drop it on the bed during the assaults. She didn’t know what he used it for, until she was older and became aware of the “pull-up method”, where the male does not ejaculate inside the female. [ 12 ] Sometimes after A.M. left her room, her little sister L.M. would come and climb into bed with her. She evidently sensed something bad was happening to her older sister, so she suggested they move their beds together. They did, but the assaults didn’t stop.

In fact, A.M. still got into bed with C.N. and, in addition to raping her, he fingered L.M. The beds were quickly separated again, as C.N. did not want her little sister to be assaulted. She encouraged L.M. to sleep with her parents or her other siblings. [ 13 ] As C.N. got older, sometimes she didn’t fight him as much on nights when he had been nice to her during the day. Days when he picked on her, she would fight him harder at night. Days when his girlfriend(

s) would visit the house, he was nice to her in their

presence, “ but then at night he would still come .” Outside the home or with his friends she was his little sister, and he was proud to show her off. He was a “ good big brother.” Inside the house he would beat her, punch her, call her names, such as “giraffe”, and generally be mean to her. One time he pushed her down the stairs. [ 14 ] She does not recall when the sexual assault first happened, but it happened over and over until, at the age of 13, she finally confronted him. They were fighting. He was smug, laughing at her.

She said “ if you ever touch me again, I will let everybody know...my mother, your father…what you do to me every single night.” He stopped laughing. He never touched her again. “ That day I got my power.” After that, his voice would tremble in her presence. [ 15 ] C.N. had never told anyone in her family, because she didn’t think anyone would believe her. “ He was the good one, I was the screw-up”.

The only person in her family who knew was L.M., because she had been in the room. [ 16 ] The complainant’s disclosure to her family occurred many years later, sometime around 2003 or 2004, she was unsure exactly when, under the following circumstances: C.N. has two children, a daughter, S., born in 1997 and a son, D., born in 2000. One day when S. was little, perhaps 3 or 4, or maybe 6 years old, she can’t recall with certainty, S. had spent the night at B.M.’s home. (B.M. and C.N.’s mother were no longer together at this point).

The next day, C.N. was at her mother’s home when her daughter was brought home, not by B.M., as C.N. expected, but by A.M., who was, unbeknownst to her, visiting his father. C.N. had had no contact with A.M. for years at that point, and was shocked to see him bring her daughter home. “ That was the day the trigger went off in my brain.” C.N. questioned her daughter, who maintained that nothing had happened between her and her uncle. Some unspecified time later, C.N. discovered pictures that her daughter had drawn in her book of a naked man with his penis exposed.

There were three pictures of a naked man, and one of a little girl. She grilled her daughter, who continued to insist that nothing had happened. S. said A.M. had not touched her. [ 17 ] C.N. testified that at that point her world began to crumble. She beat her daughter because she didn’t believe her continued denials of abuse at the hands of A.M., especially in the face of behaviour that she recognized from her own abuse. She fought with everybody. One day her step-brother J.M. called her out on it.

He asked why she was fighting with everybody, yelling at her mother, why she beat her own daughter. “ What the fuck is wrong with you?” She broke down and told him about A.M. The Evidence of J.M. [ 18 ] J.M. is 32 years old. When he was a child, he adored his brother A.M., his big brother, and wanted to be just like him. He recalls that C.N. was always kind of quiet around A.M., but she was vocal and combative with the rest of the siblings. “If you fought with C., she would fight back”.

She never argued with A.M. [ 19 ] One day, he can’t recall exactly which year it was, he had a heated argument with C.N. over, amongst other things, her treatment of her kids, when she suddenly paused and started crying, which was very unusual for C.N. She told him that day that A.M. had taken her innocence when she was young, coming into her room at night and forcing himself upon her. He didn’t know what to make of it, so he spoke to his sister L.M. He told C.N. that they had to tell the family.

She didn’t want to, but he insisted. [ 20 ] Sometime afterward, maybe a week or two, J.M. telephoned his brother A.M. in Windsor and confronted him with C.N.’s allegations and asked him: “Did you do it?” A.M. admitted he had done it, and said he was sorry, he was young. [ 21 ] The parents were told. His mother was devastated. His dad wanted to resolve it within the family and not let it become news. J.M. says he looked at A.M. as no longer being his brother. “I still love him, but I hate him for this.” [ 22 ] J.M. has a criminal record, filed as Exhibit 3.

In 1995 he was found guilty in Youth Court of theft under $5000 and placed on probation. He was twice convicted of Robbery, both times as a youth. The first was in 1998, when he received a sentence of 4 months secure custody, followed by 4 months open custody and probation. In 1999 he was again convicted of Robbery, as well as unauthorized possession of a prohibited weapon and sentenced to 12 months secure custody and 3 months open custody. As an adult, he was convicted in 2001 of assault and placed on probation, and in 2002 of Theft Under $5000 and sentenced to 90 days intermittent custody.

He has no convictions since 2002. The Evidence of A.M. [ 23 ] A.M. was born in Uganda and immigrated to Canada with his family in 1987. He is now 39 years of age, and lives in Windsor with his spouse of 18 years and their 3 year old son. A second son tragically passed away shortly after his birth last year. [ 24 ] A.M. was employed with the Children’s Aid Society until the present charges were laid, at which time his employment was terminated. [ 25 ] A.M. denies the allegations brought by C.N. He also denies having admitted to his brother, J.M., that he had committed these acts.

He denies having been confronted by C.N. when she was 13 years of age, and says he only learned of the allegations last year when a friend sent him an email with an attached post from Facebook, wherein C.N. had accused him of rape when they were young. That Facebook posting is Exhibit 2 in this trial, filed during the evidence of C.N., not for the truth of its contents, but as part of the narrative. [ 26 ] When the family lived on Pembroke Street, A.M. was very involved in sports. He played soccer and basketball, and was also involved in track. Much of his free time was spent at games or doing homework.

In the summertime he attended a 2-3 week camp in Huntsville. In addition, there were frequently people staying at the house, and newcomers from Uganda were welcomed with open arms into their home, which some people referred to as the “Ugandan Embassy”. [ 27 ] A.M. testified that he distanced himself from his brother J.M. because J.M. was in trouble with the law. They did not sever ties because of the allegations levelled against him by C.N.

POSITIONS OF THE PARTIES A. Defence Position [28] Counsel for A.M. argues the defence in two prongs: (

i) Identity - Since the complainant did not look at her attacker, having buried her face in the pillow on her own admission, theCrown has failed to prove identity, and: (ii) Reasonable doubt -The case for the Crown falls short of proof beyond a reasonable doubt, as there are issues with respect tocredibility and reliability of the Crown witnesses.

Further, the accused testified that these events did not occur and, there being no basisto reject his evidence, he is entitled to an acquittal. [29] Counsel points to a number of problematic areas in the complainant’s evidence, namely, inconsistences between her evidenceat trial and her pre-trial statement(s); inconsistencies between her evidence and that of J.M., and evidence that the complainant offersforth for the very first time at this trial, which counsel urges me to reject as both unreliable and untrue. [30] Counsel argues further that the complainant was an evasive, argumentative witness who is unable to recall specific eventsand instead recalls events as a “lump sum”. [31] With respect to J.M., counsel for A.M. submits that his evidence is tainted by his criminal record, and by the sheerunlikelihood of the telephone call admission that he testifies to.

B. Position of the Crown [32] Crown counsel points out firstly that the complainant testified as an adult to events that happened when she was a child, andher evidence must be viewed through that lens. [33] Secondly, she argues a number of specific factors that favour acceptance of the complainant’s evidence. [34] Thirdly, she advances a number of reasons to reject the evidence of A.M. and, fourthly, she submits that the identity of thecomplainant’s attacker has been proved beyond a reasonable doubt to be A.M.

THE LAW [35] The accused testified; therefore, I am required to instruct myself with respect to the principles enumerated in the seminaldecision of R. v. W. (D.), (SCC), [1991] 1 SCR 742. If I accept the evidence of A.M. that he did not commit the offencescharged, then I must acquit. Secondly, even if I do not accept his evidence, but it leaves me with a reasonable doubt as to his guilt, then Ilikewise must acquit.

Finally, even if I reject his evidence and it fails therefore to leave me in doubt as to his guilt, I must find him notguilty unless I am persuaded of his guilt beyond a reasonable doubt by evidence that I do accept. [36] Both Crown witnesses have prior convictions. J.M.’s record is set out in detail above. [37] The complainant testified that she had committed two assaults when she was a Young Person. She assaulted her step-brotherJ.M. when she was fourteen, by hitting him with a lamp over the eye.

J.M. still bears the scar, and smiled when he showed it to the Court.C.N. says she was not convicted of this offence. When she was still a teenager, around 16, she attacked her step-father with a knife,because he abused her physically. When a man attacks her, “...I see red. I attack.” She refuses to be hurt by a man. She served time atVanier Institution as a result of the attack upon her step-father. [38] I therefore instruct myself that these prior convictions are relevant to the credibility of both witnesses, in particular J.M.

Hisrecord is more extensive than C.N., and furthermore consists largely of offences involving dishonesty, which are in my view more apt torender one’s credibility subject to scrutiny. I do note, however, that both witnesses have not been convicted of an offence for many years,and that factor alone has been held to lessen the significance of the prior convictions: see R. v. Brown (1978), (ONCA), 38 C.C.C. (2d) 339 (Ont. C.A.). ANALYSIS The Complainant, C.N. [39] The complainant presented as a forceful witness. Throughout two full days of testimony, she was in my view sincere andforthright.

Counsel for A.M. cautions against placing too much emphasis upon the demeanour of the complainant, and points out that awitness can be adamant about matters which are in fact untrue. I agree that demeanour alone can be a shaky foundation upon which tobase either the acceptance or indeed the rejection of the evidence of a crucial witness. It is nonetheless a factor which assists in theassessment of the credibility of a witness, and in my view the demeanour of C.N. was that of a truthful witness.

Notwithstanding that, acareful look at the objective reliability of her evidence is warranted. [40] Counsel for the defence points to a number of specific areas of concern in her evidence. Firstly she points to inconsistencies.The complainant’s initial statement to the police in 2006 makes no mention of A.M. bringing her daughter home and the subsequent fall-

out from that, including her beating of her daughter because of her denial of abuse by A.M. This is inconsistent with her second statement in 2014, and, counsel argues, flies in the face of her testimony that this incident was the catalyst for her disclosure in the first place. [ 41 ] In my view this analysis does not accord with C.N.’s evidence.

Her evidence was that this incident came as a shock to her, and indeed “… that was the day the trigger went off in my brain.” However, the disclosure that this incident ultimately precipitated was the disclosure to her family, notably to her brother J.M., shortly thereafter. It was years later that she first went to the police, and at that point, she maintains in cross-examination, her daughter still insisted that there had been no abuse of her by A.M. Indeed, her daughter maintains that position today.

At the time C.N. went to police in 2006, she testified, she went out of concern for her own conscience in the event it were to later emerge that A.M. had violated any of the young people he worked with in his employment with the Children’s Aid Society. She would have felt guilty in the event this were to come to light and she had remained silent. She simply wanted her disclosure “on record” with the police. She told them as much in her interview, she testified.

There is nothing implausible in this, in my view. [ 42 ] A further inconsistency pointed out by counsel, a significant one, she submits, revolves around the same series of events, and suggests an inconsistency between C.N. and J.M. as to the location of the alleged disclosure by C.N. to J.M. He says it happened at his mother’s home on Millhouse Crescent, whereas C.N. says it happened at the address on Tweedrock.

Having regard for the fact the conversation happened more than ten years ago, and J.M. says he “thinks” it happened at the Millhouse address, I find nothing of any moment in this contradiction, if indeed there is one at all. It struck me during J.M.’s evidence that he was genuinely searching his memory and trying to recall where it took place. [ 43 ] The next purported inconsistency focusses again on the conversation between C.N. and J.M. Counsel says they contradict each other as to whether C.N. is alleged to have provided details of the assaults, with C.N. saying she did not and J.M. claiming she did.

I disagree. Not only does J.M. not say he was provided details, he insisted in cross-examination that he did not want details, beyond her disclosure that A.M. had come into her room and forced himself upon her and taken her innocence. That is the extent of the detail to which he testifies having received from C.N. [ 44 ] Defence counsel recalls C.N. testifying in cross-examination that J.M. told her A.M. had admitted to assaulting her as far back as when the family lived in Africa, which is contrary to J.M.’s evidence.

With respect, I find no reference in the complainant’s evidence to having been told that by J.M. She does say, early on in her evidence, that she was “told” it started when she was five years old (at which time they were still living in Africa), however she had no recollection of those events. “ He even has memories that I don’t have.” She does not say who told her that. She spoke to J.M. about his conversation with A.M., and in cross-examination she testified that she also spoke with her mother, who advised her that A.M. had admitted to his father that he had sexually assaulted her.

J.M. also told her A.M. had spoken to D.M. about the allegations. On at least one occasion she indicated that he had admitted incidents to her. Follow-up questions clarified: Q. (A.M.) admitted it to you? A. Not to me. My brothers.” It is clear there was considerable discussion within the family about this matter. I find no contradiction between C.N. and J.M. in this regard. [ 45 ] Counsel points to new details added to the complainant’s testimony that colour her credibility.

She testified that her step- father, B.M. took her and her sister L.M. to dinner at Mandarin and urged them to deal with the matter within the family, as public disclosure could ruin A.M.’s life. He asked them to “keep it quiet”. She agrees that she never told the police about this. They didn’t ask a question that prompted that answer, whereas in her view (defence counsel) did. [ 46 ] I would observe first of all that the events that comprise C.N.’s testimony took place over a span of decades, beginning when she was a small child.

One should hardly be surprised that not every relevant detail finds its way into a 45 minute statement to the police years after the fact. Her in court testimony comprised two full days, including one day of cross-examination. Secondly, her evidence in this regard is corroborated by the testimony of J.M., that is, that his father wanted to resolve the matter within the family and not let it become news. [ 47 ] The complainant testified during cross-examination that the accused never committed other sexual acts with her. He never touched her breasts during sex, nor did he caress or kiss her.

He did, at least one time, stick his finger in her mouth. She agrees she never mentioned this to the police. She didn’t view it as a sexual act, just a way to keep her quiet. She also acknowledges that her testimony differs from her statement in that she told the police he said to her, after she and L.M. had pushed their beds together, words to the effect that he wasn’t going to stop. She does not now remember him saying that. She also told the police that he used the towel sometimes to wipe her off.

In her evidence she did not recall that. [ 48 ] I agree, as does the complainant, that her evidence differs from her statement(

s) in those respects. These are not, in my view, major inconsistencies. They form but a small part of a much larger narrative, a narrative rich in detail and in which the complainant fairly admitted when she could not recall certain details. The complainant testified that she was a passenger in a serious car crash in 2008. She has no recollection of the actual accident; however, she recalls the time she spent in hospital recovering, learning how to walk again, and the scars it left on her mentally.

Her memory is not what it once was, she concedes readily, and she has difficulty remembering dates, specifics, but she still remembers the vast bulk of what happened to her when she was young. [ 49 ] Counsel urges me to find the complainant was an evasive, argumentative witness. She was certainly combative, without question, but she was not, in my view, evasive. She answered every question put to her. Sometimes the answers were long, but they were in my view responsive to the questions asked of her. She was, in my view, candid and forthright, and made no attempt to hide her flaws.

Indeed, she was, as Crown counsel suggests, candid to a fault. She admitted to beating her daughter out of her own fears, even after being repeatedly told by her that nothing had happened. [ 50 ] She did not exaggerate the assaults, and did not claim abuse other than that detailed herein. “It was always the same.” The

core of her evidence was unwavering. J.M. – The Admission [ 51 ] The complainant’s testimony was corroborated by the testimony of her step-brother, J.M. Defence counsel urges me to reject his evidence as implausible. I disagree. At the time of A.M.’s admission to J.M., the sexual abuse of C.N. had been terminated for 10 years or more, and yet nothing of any legal consequence had happened to A.M. He may have felt the danger had passed. Whatever his reasons, I am persuaded that he admitted the offences to his brother.

Notwithstanding his criminal record as a young man, I found J.M. to be a very candid, credible witness. When asked why he had declined to speak to the police and resisted providing a statement, he answered simply that he didn’t want to help convict his brother. This evidence in my view accords with common sense and human experience, and furthermore his reluctance to speak to the police demonstrates that there was no collusion between him and his sister to “set up” their brother.

Indeed, it is evident that this whole affair has been very difficult for J.M., as he has been called upon to give testimony against his boyhood hero, his big brother, whom he clearly loved. He was the one who insisted to C.N. that the family must be told. She didn’t want to cause problems between siblings.

He was the one who pointed the finger at his brother and called for an answer. [ 52 ] I furthermore find J.M.’s position that the initial disclosure of these allegations were the reason for the rift within the family quite plausible, particularly in comparison with the position of the defence, that when the parents split up everyone chose sides. I of course do not have to choose one or the other. Indeed, the final decision in this matter does not depend upon which view I take on this issue. A.M. [ 53 ] The evidence of A.M. is, as noted above, subject to the application of the principles enunciated in R. v.

W. (D.) . Therefore, if I accept his evidence I must acquit. Even if I do not accept his evidence but am left with a reasonable doubt as a result, I am still bound to acquit. [ 54 ] I say without hesitation that I do not accept A.M.’s denials, nor am I left with a reasonable doubt of his guilt as a result of his evidence. In my view, his evidence was contrived and self-serving, and frankly not worthy of belief. ♦ He testified that he never brought his girlfriend(

s) to the house, at least “ not that house”. He met his girlfriend(

s) at the mall, perhaps once a week, and they walked around the mall. He isn’t sure if his parents ever met any of his girlfriends. ♦ He denies ever “playing house” together with C.N., T. and P.. He never played with C.N. Boys played together with boys, and girls played together with girls. C.N. had testified that when they were younger, the four of them would play together, and that A.M. would dictate that she, C.N., would be P.’s girlfriend or “wife”, and P. would insist that he had the right to kiss her or touch her, as he was “allowed”. She did not want to be P.’s “wife”, nor to be touched or kissed by him.

T. would be A.M.’s “wife”. ♦ He denies ever entering C.N.’s bedroom, even during the day, for the entire time they lived on Pembroke. He admits being in the bedrooms of his other siblings, except for D.M. ♦ He denies carrying around a towel. C.N. testified that he carried it constantly, on his shoulder. He also denies that he ever had a green towel. His towel was blue. ♦ He denies ever seeing C.N.’s daughter S. at his father’s home, and saw her only at his (step) mother’s home.

He never dropped S. off at their mother’s house. ♦ He denies there was ever a time when C.N.’s mother lived with his family without C.N. being there as well. ♦ He refused to acknowledge in cross-examination that C.N. read a lot, as per the following: Q. (C.N.) read a lot? A. I don’t know. I’m not sure. Q. She studied because she did well? A. Right. Q. Study requires reading? A. I can’t say her good grades were because she read a lot.

She was naturally bright. [ 55 ] The above represent examples of testimony that demonstrate a repeated refusal by A.M. to make reasonable concessions on matters that are peripheral to the central issues in this case. He evidently felt he had to discredit her testimony at all costs. In doing so he called into question his own credibility. [ 56 ] A.M. went to great lengths to demonstrate that he was involved in sport and activities that kept him outside the house. Afternoons and evenings he was either at games or doing homework. In the summer he was away at camp for two or three weeks.

People often stayed at their home. Some of the time on Pembroke, he says C.N. stayed in a room with S.M., not L.M. All of which, I am urged

to find, demonstrates a lack of opportunity to commit the offences charged, at least not without likelihood of detection. In my view it demonstrates only a level of desperation on the witness stand. C.N. is quite clear that the attacks did not happen in the afternoons or evenings, they happened late at night, when the rest of the house slept. As for visitors, C.N. agreed that there were sometimes visitors, but testified that while they stayed, he wouldn’t come to her room. J.M. testified that he could not recall that many people staying at their home, and it didn’t happen that often.

He also refuted the suggestion that A.M. was away a lot. As for the suggestion that A.M. went to summer camps, “ We all did summer camps .” [ 57 ] A.M. maintained that he cut ties with his brother, J.M., because he disapproved of his criminal behaviour as a teen. In cross- examination, he agreed that his chosen line of work involved working closely with troubled youth, but nonetheless maintained that it was “best” for his career to distance himself from J.M. and his behaviour. This evidence is in my view a weak attempt to mask the real reason he and his brother severed ties.

J.M. essentially disowned him when he discovered his abuse of C.N. I note the evidence of J.M. in this regard, in cross-examination, where the following exchange took place regarding his telephone call to A.M. He was quite firm in his denials of the last three suggestions put to him below: Q. …you called (A.M.)? A. Yes. Q. You did not have his telephone number. A. No. I got it from (S.M.) or (D.M.).(his brothers) Q. A.M. did not have a good relationship with you at that time? A. I disagree. Q. He distanced himself from you because you were in trouble with the law. A. Disagree. Q. You hadn’t spoken in years. A.

Disagree. [ 58 ] I note as a general observation that A.M. testified in a fashion that I would characterize as lacking sincerity, candour, or any of the characteristics that one expects to find in a truthful witness. As noted above, demeanour is not, standing alone, reason to accept or reject the evidence of a witness, however it is a relevant factor in the assessment of viva voce testimony and I found it clearly lacking in the evidence of A.M. THE DEFENCE OF IDENTITY [ 59 ] I will deal with this argument very briefly. C.N. testified that she would bury her face in the pillow and not look at her attacker.

She knew who it was, however, even though she didn’t look at him, and though he never spoke. [ 60 ] The attacker could not have been one of her other brothers, because they were all younger than her and much smaller than A.M. It was not her step-father, because her step-father is a very large man, bigger than A.M. Furthermore, the attacks continued to take place on weekends when her step-father was not at home. In addition, her father has a very different smell than A.M. Her father smells “ like Africa ”, like a cross between “ mothballs and meat ”. A.M. smelt like his cologne.

A.M. kept his toenails long, and he used them to scratch her when she resisted. She wore layers of socks to school to cover the scratches. [ 61 ] When C.N., at the age of 13, confronted A.M., the abuse stopped. I can think of no more convincing evidence of identity. Not that any is required, in my view. Indeed, the suggestion it was someone else is without merit.

CONCLUSION [ 62 ] Having considered the evidence as a whole, I am satisfied beyond a reasonable doubt that A.M. committed sexual assault repeatedly upon C.N. during the years they lived at the Pembroke Street address, the years set out in the information. I therefore find him guilty as charged. Released: March 18, 2015 Signed: “Justice F. Crewe”