J. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. P.J.N., 2003 NSPC 024 Date: 20030617 Case No.(s): 1137510; 1137511 Registry: Halifax P. J. N. Restriction on Publication: s. 486 Publication Ban Judge: The Honourable Judge C. H. F. Williams, JPC Heard: Decision rendered orally June 4, 2003 in Halifax Nova Scotia Counsel: Eric R. Woodburn for the Crown Catherine Benton for the Defence BY THE COURT Introduction [1] Fourteen year old S.D.M., the complainant, was close friend of B.N. who is the daughter of the accused, P.J.N.. The accused was also the complainant’s mother’s ex-boyfriend. Periodically, during the latter good relationship, the complainant would sleep over at the accused apartment and he would babysit her. After the relationship ended, the complainant would still sleep over along with her friend B.(N.). On one of these sleep overs, on or about November 10, 2001, the complainant stated that while she was asleep in bed with B.(N.), she felt touching that awakened her. When she awoke, she saw the accused standing beside the bed. She averred that the accused then touched her left breast with his hand and afterward left the room. Following an investigation, the police charged the accused with sexual assault and sexual touching of the complainant. Relevant Evidence (a) for the Crown [2] accept and find that on November 10, 2001, the complainant went for sleep over at the accused apartment. The accused daughter was also present. After they had consumed pizza and watched movie, the girls, about midnight, retired to the bedroom in which they would usually sleep on such occasions. accept that the complainant was wearing pyjama pants with an elastic waistband, underwear, T-shirt and bra when she went to bed. Sometime around 0300 hours, the complainant awoke because she felt that someone had touched her in her vaginal area. When she awoke, she saw the accused standing by the bed near her. She however did not see him touch her. Concerned about his presence and what she surmised he had done, she tried to wake her friend who was sleeping beside her. She turned on her left side and the accused leaned over and touched her left breast over her clothing, went to window on the opposite side of the bed and then left the room. When she woke up her friend, she told her, without any details or elaborations, that her father had touched her “down there and up there”. Feeling ill, the friend got out of bed and went into the living room where she discovered that her father was still awake and that the television was on. Shortly afterwards the complainant also came into the living room and they all sat and watched television. They did not speak about the alleged incident. After while, the accused retired to the bedroom to sleep leaving the girls in the living room. (b) for the accused [3] The accused testified. He knew the complainant for about four years when he was living common law with her mother. Frequently, she would sleep over at his apartment and sometimes he would babysit her. He denied that he entered the bedroom when the girls were asleep and denied touching the complainant in or near her vaginal area or her breast. When his daughter came into the living room at about 0300 hours, he was asleep but the television was on. They watched television for awhile and afterwards, he retired into the bedroom to sleep leaving the girls in the living room watching television. Findings and Analysis [4] Here, credibility is an issue. As observed in R. v. O.J.M., [1998] N.S.J. No. 362 at para. 35: Overall, witness’ statement is considered true until there is some particular reason to doubt it. This may come about by circumstances of the inherent unreasonableness of the testimony itself, or by imputations extracted in cross-examination of the witness to infer, for example, the very incredibility of fact that reveals obvious errors. In addition, extrinsic evidence, or lack of it, may point to errors or inaccuracies in witness’ testimony and if never corrected to rehabilitate the credit of the witness, that testimony would have little or no probative value. [5] am mindful of the words of Finlayson J.A. in R. v. S.(W), (1994) 1994 CanLII 7208 (ON CA), 29 C.R. (4th) 143, 90 C.C.C. (3d) 242 (Ont. C.A.), at p.250 (C.C.C.) (Leave to appeal to S.C.C., refused 93 C.C.C. (3d) vi). We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness’ testimony. Demeanour alone should not suffice to found conviction where there are significant inconsistencies and conflicting evidence on the record. [6] Also in mind are the words of Rowles J.A., in R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.), at para. 28: It does not logically follow that because there is no apparent reason for witness to lie, the witness must be telling the truth. Whether the witness has motive to lie is one factor which may be considered in assessing the credibility of witness, but it is not the only factor to be considered. Where, as here, the case for the Crown is wholly dependant upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all the other evidence presented. [7] First, think that the relationship between the parties and the location of the alleged offence are critical and significant and must be weighed along with the total evidence. bear in mind that the complainant and the accused were not strangers. After all, he was once her mother’s boyfriend and she knew him for about two years. During that period she had slept at his apartment and at times she and the accused were alone as he babysat her. Even though the accused had broken up with her mother she would still go to his apartment and stay over night with his daughter who was her good friend. When the girls had sleep over, the accused would sleep in the living room and they would occupy the bedroom. [8] Second, on the crucial issue of reliability, examined each version for its consistency with the surrounding probabilities. Overall, it was an evening with no apparent interpersonal tensions. The accused bought pizza for the girls and all was convivial as they watched movie. Eventually, the girls retired to bed and the accused remained in the living room watching television and fell asleep on the couch. In any event, the complainant testified that, presumably when asleep, she felt something inside her pyjamas, about her vaginal area, like someone touching her. Additionally, she described that she felt bodily sensation but that its causation was ambiguous. Was it hand or was it breeze between her legs? Did someone actually touch her when she was asleep? Or, did she surmise that someone had touched her? [9] I, however, think that when she was asleep it is reasonable to conclude that she would not be conscious of her immediate surroundings. Further, it seems to me that it is reasonable to infer, and do, that when asleep she also would not be consciously aware of any external bodily stimulus and would be unable to identify any causative agent unless that medium or effect was still in progress when she became consciously and emotionally aware of her surroundings. In other words, if on awaking she discovered some activity in progress, she could reasonably infer that it that ongoing activity that brought her from sleep to conscious awareness. Likewise, assuming that there was in fact touching when she was asleep, think that there ought to be some objective indication that her clothing was disturbed in the area of the bodily sensation and in manner that would lead person to conclude rationally and reasonably that in the circumstances of the discovery the only rational conclusion could be that it was the accused and no other person who could have touched her. [10] Therefore, think that only if these factors coincided that she would be able to conclude rationally or to make reasonable valid connection, on the balance of probabilities, between what she discovered to be happening when she awoke and her pre-waking bodily sensations as the probable causative external factor that disrupted her sleep, or brought her from state of sleep to state of conscious awareness of her surroundings. However, on her testimony, when she awoke, she discovered that no one was touching her. The accused was just standing near her “belly button area”. [11] Additionally, before falling asleep the girls had covered themselves with comforter. The complainant was wearing pyjama pants with an elastic waistband, underwear, T-shirt and bra. There was no clear evidence to indicate that anyone had interfered with her pyjamas or underwear before she awoke or that they were in fact disturbed. She, however, described the touching as above her underwear, near her pubic area, and “where you use the bathroom”. When considered the description of the event as portrayed by the complainant concluded that it lacked contextual enhancements and that there were no coherent details that practical and informed person would readily recognize as reasonable and probable in the circumstances, as to how the accused accomplished the act of touching her vaginal area, or at all. Thus, in my view, upon observing the witnesses as they testified and on my assessment of their testimonies, the complainant’s description of this touching when evaluated and assessed with the total evidence, was not sufficiently credible to persuade me that her recounting of the event was either accurate or reliable. [12] Further, upon assessing her testimony and when assessed with the total evidence also was not convinced that it was in harmony with the preponderance of the probabilities which practical and informed person would readily recognize as reasonable. I think that it was internally inconsistent and her cross-examination, in my view, revealed obvious errors which were never corrected to rehabilitate her credit. therefore concluded that her testimony was dubitable. Consequently, in my view, if indeed she could feel something while asleep, she could not, without doubt, state, that in reality, what she experienced was the accused actually touching her vagina with his hands. [13] As she lay on the bed and fully awake, according to her testimony, the accused moved and reached over and touched her left breast. It was unclear whether she had turned onto her left side with her back toward him or what was the exact position of her body when that touching occurred. After touching her he went to the window on the opposite side of the bed, the side on which his daughter was sleeping. Here, the insinuation is that the accused was opportunistic. However, he had babysat her in the past and had been alone with her on many occasions without any incidents. Also significant, in my view, was her testimony that soon after the event she informed the police and others that the accused had put his hand inside her shirt and over her bra on her left breast. At trial, she asserted that he touched her left breast over her shirt. Additionally, when she woke up her friend she gave vague and ambiguous description of significant event particularly to close friend with whom she sleeps over and with whom she talks “girl stuff”. Her immediate post event conduct as gleaned from the total evidence did not suggest someone who was shocked and awed by the incidents as she attempted to portray as being the status of her emotional reaction to the occurrence. [14] Frankly, was troubled by aspects of the evidence. Nonetheless, here, reiterate what said in R. v. D.A.B. [2002] N.S.J. No. 512, 2002 NSPC 35 (CanLII), at para. 11: ...we should also remind ourselves that evidence of complaint of sexual assault is never evidence of the facts complained of as the complaint cannot support the complainant’s testimony. From this proposition think that the best that the prosecution can expect is that accept the complainant’s prior statement only as part of her narrative and nothing more. R. v. Ay (1994) 1994 CanLII 8749 (BC CA), 93 C.C.C. (3d) 456 (B.C.C.A.), R. v. O.B. 1995 CanLII 7507 (NS CA), [1995] N.S.J. No. 499 (C.A.). [15] concluded that the complainant had testimonial competence. However, was concerned about her capacity to relate coherently and consistently her recollection. Further, although she appeared willing to relate the essence of what was alleged, in my view, she appeared somewhat casual, impersonal, scripted and lacked background details such as bodily sensations as one might expect from someone who experienced the ordeal would know about. was also concerned about the independence of her revelation, on contentious points, without suggestive questions. Although do not expect her to perform in the same manner as an adult, her testimony however is not subjected to lower level of scrutiny than that of an adult, R. v. Stewart, (1994) 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (C.A.), R. v. R.W., (1992) 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.). See also: R. v. A.W.E., (1993) 1993 CanLII 65 (SCC), 83 C.C.C. (3d) 462 (S.C.C.). [16] However, considering the details of the incident as she described them both in direct and cross-examination, and in light of the total evidence, logic and commonsense when applied to those facts made me cautious in fully accepting them on their face value. Although do not require corroboration of her testimony, common sense required that, in weighing and assessing it, look for supportive evidence capable of persuading me to entertain rational belief that she was telling the truth and which would strengthen my belief that she was truthful. Her narration of events did not remain consistent and looked for such supporting evidence on the central issues but found that such evidence was either lacking or unpersuasive. R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) (S.C.C.), R. v. Boss (1989), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.), R. v. Marquard 1993 CanLII 37 (SCC), [1993] S.C.R. 223 at paras. 19 and 20. however should note that her minor inconsistencies did not diminish unduly her credit. It was the cumulative effect of inconsistencies on critical issues that was consequential and caused me to doubt her reliability. In the result, concluded considering the total evidence that, overall, the frailties and the inherent weaknesses in her testimony rendered it unpersuasive. Additionally, in my view, on the issue of the sexual touching, it did not meet the threshold reliability criterion. [17] After hearing the accused and observing him as he testified and on assessing his testimony with the total evidence, and the evidence that accept, he has raised, in my mind, reasonable doubts. In short, am left in doubt by the testimony of the accused. R. v. W.(D), 1991 CanLII 93 (SCC), [1991] S.C.R. 742. [18] On the evidence before me and that which accept, determine that it would be unsafe to conclude beyond reasonable doubt that the accused sexually assaulted the complainant or touched her for sexual purpose, or at all. In my view, the evidence was more impressionistic than probative of the facts alleged and I was not persuaded, on the total evidence and that which I accept, that the Crown has proved beyond a reasonable doubt, on the Information tried before me, that the accused, P.J.N. between the 19th day of October 2001 and the 19th day of November 2001, sexually assaulted S.D.M. or for a sexual purpose touched her with his hand. Accordingly, I find him not guilty as charged and will enter acquittals on the record.
A 14 year old accused her friend's father of touching her breast while she was sleeping over at his residence with her friend. She also stated that just prior to this she was awakened by the feeling of someone touching her vagina. The accused was charged with sexual assault and sexual touching of the complainant., accused found not guilty; the complainant's testimony was internally inconsistent and her cross-examination revealed obvious errors which were never corrected to rehabilitate her credit. The evidence was more impressionistic than probative of the facts alleged and the accused's evidence raised reasonable doubts in the court's mind.