WARNING
The court hearing this matter directs that the following notice should 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:
Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.
Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.
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:
- Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
C. H., a young person
Before Justice E. B. Murray
Heard on October 31, December 2, and December 20, 2011
Reasons for Judgment released on January 6, 2012
Ms. Yeshe Laine for the Crown
Mr. Brian Irvine counsel for the accused C. H.
MURRAY, E. B. J.:
1C. H. came to trial facing six charges which I set out below, reflecting amendments made at the outset or during the course of the trial:
Assault on S. N. between April 1-30, 2010
Assault on S. N. causing bodily harm sometime between August 1-31, 2009
Assault on S. N. on or about December 25, 2009
Assault on S. N. sometime between October 14-31, 2010
Utter threat to cause death to S. N. and D. N., on or about November 22, 2010
Failure to comply with recognizance by communicating indirectly with S. N. sometime between November 25, 2010 and December 1, 2010.
2At the outset of the trial, the defendant pleaded guilty to counts 5 and 6 above, based on an agreed statement of facts set out below.
The defendant and Ms. N. were in a romantic relationship which ended on November 12, 2010.
The defendant wanted to retrieve some property from Ms. N..
On November 22, 2010, Ms. N. received a call from the defendant while she was in a classroom at school, and stepped into the hallway to take the call on her cellphone. She was alarmed at the defendant’s words, and in order to have a witness to the conversation, stepped back into the classroom and put her phone on speakerphone.
The defendant said the following :
I will come to your house and kill you
I will slash your throat
I will smash the windows, I will smash everything
I will come to school and get you
3The defendant also agreed that he had threatened to slash the throat of D. N., S. N.’s father.
4A teacher and the students in the classroom heard these threats. The teacher contacted the principal, who called police. Ms. N. was interviewed and gave a videotaped statement at the station that day. The defendant was arrested, and charged with threatening as well as the charges of assault set out above. A condition of his release was that he not have contact with Ms. N., direct or indirect. In pleading guilty to failure to comply with that recognizance, the defendant acknowledged that he had contacted S. M., a co-worker of his and Ms. N.’s, and asked him to contact Ms. N. on his behalf to obtain money that he said she owed him.
5The defendant flatly denies that he ever assaulted Ms. N.. He submits that the allegations of assault are a vindictive response to his termination of their relationship.
BACKGROUND
BACKGROUND
6Ms. N. and the defendant are now both 18 years of age, and were 16-17 years old at the time of the events in question. They were co-workers at No Frills; the defendant worked a 40-hour week, and Ms. N. worked part-time and also attended secondary school. During their relationship, they were often in each other’s company, either at the home Ms. N. shared with her father, or at the home which the defendant shared with his mother, stepfather, and their children. When the couple were at Ms. N.’s home, they were often unsupervised, as Mr. N. worked nights.
FACTS NOT IN DISPUTE
FACTS NOT IN DISPUTE
7I heard evidence from Ms. N., Mr. M., M. K., a friend of Ms. N.’s and, D. N., Ms. N.’s father, and from the defendant and his mother, Mrs. M. H..
8Certain facts emerged at trial which were agreed upon, or not challenged by opposing counsel:
The defendant and Ms. N. were in a romantic relationship from June 23, 2009 to November 12, 2010.
The defendant terminated the relationship.
Ms. N. was very upset that he terminated the relationship.
During the relationship, there were occasions on which Ms. N. held the defendant, either attempting to restrain him when he wanted to leave her company, or attempting to comfort him if she believed he was in distress.
On some occasions, the defendant found this attention unwanted, and pushed Ms. N. away.
The defendant suffers from ADHD, and has had difficulties with impulse control. He has been receiving psychological treatment for a lengthy period of time.
The defendant when angry:
has thrown objects
has punched walls
has broken windows
broke Ms. N.’s cellphone
damaged Ms. N.’s ring
(This behaviour was described by the defendant’s mother in her cross-examination.)
9The defendant did not defend the assault charges against him by alleging that he acted in self-defence, to repel unwanted touching by Ms. N..
THE EVIDENCE
Assault between April 1-30, 2010
THE EVIDENCE
10Ms. N. initially testified that the first time the defendant assaulted her was in the spring, April or May, of 2010, when the defendant struck her in the face while in the company of his friends. She said that the assault “probably” occurred because she had said something that angered him. Much later in her evidence, she said that she now recalled that this assault happened in August 2009. She testified that this was hard to remember, as it happened so long ago.
11The defendant denies that this assault occurred. There were no other witnesses.
Assault causing bodily harm, sometime between August 1-31, 2009
Assault causing bodily harm, sometime between August 1-31, 2009
12Ms. N. testified that, on a rainy night in August 2009, after leaving a party at which they had argued, the defendant hit her with an umbrella, cutting her head. Her jacket was ripped, and blood stained her purse. Ms. N. testified that the defendant was apologetic, and stayed with her that evening; the next day when she and he went to his mother’s home, she told Mrs. H. the story that they had agreed upon-- that she had cut her head when falling on a bus. She asked Mrs. H. to look at her head, and advise whether she needed stitches.
13The defendant agreed that he and Ms. N. had been at a party that evening and had argued, that Ms. N. had a cut on her head, and that Ms. N. told his mother that she injured herself in an accident involving a bus. His testimony on how that injury occurred changed during his evidence:
Initially, he said that he and Ms. N. were on a bus; that the bus stopped abruptly, and that Ms. N. hit her head; that she got off the bus, but he stayed on. It wasn’t raining, and he had no umbrella.
On cross-examination (which occurred some days after his evidence in chief), the defendant testified that it was raining, and that Ms. N. got off the bus before him. He didn’t see any fall or accident. The next day, Ms. N. came to his house and showed his mother a cut on her head. He wasn’t sure how she sustained the cut; “things can happen when I’m not around”.
14Mrs. H.’s evidence was that she recalled being home with the defendant one day when Ms. N. came to their home, concerned about a cut on her head and asking for her opinion as to whether she needed stitches. Mrs. H. found the cut to be superficial, and wondered why Ms. N. was calling attention to it.
Assault on or about December 25, 2009
Assault on or about December 25, 2009
15Ms. N.’s evidence details a prolonged assault at a time which she described as “Christmas time”, 2009. She testified that on the evening in question, she and the defendant finished work at No Frills, and went to her home, where they were alone, as her father was at work. An argument started. According to Ms. N., the defendant pushed her into a mirror in the kitchen, and the mirror broke; the defendant struck her several times in the face; the assault moved into the bathroom, where the defendant struck her in the face again; the defendant then struck her on her temple with a closed fist, and she fell backwards, hitting her head on the toilet bowl. Ms. N. was dizzy, and believed that she had a concussion. She did not go to the doctor, fearful that their parents would learn of the assault. Ms. N. testified that the defendant cared for her that evening. She and the defendant went to a hotel, as she feared discovery by her father when he returned from work.
16The defendant denies that this assault occurred. He testified that he was at home on December 25, 2009, and that Ms. N. was not with him. He is corroborated by his mother in this evidence. Mrs. H. also testified that on Boxing Day, 2009, Ms. N. visited their home, and that she participated actively in a family party, showing no signs of dizziness or ill-health. In cross-examination, although Ms. N. did not agree with the evidence of the defendant and his mother as to her whereabouts on December 25th and 26th, she did not allege that the assault took place on those days. 1 She was not questioned further as to when the alleged assault had occurred.
Assault sometime between October 14-31, 2010
Assault sometime between October 14-31, 2010
17Ms. N. testified that the last time that the defendant assaulted her before the termination of their relationship was on the evening of October 30 or 31st, 2010. She recalls that it was on or near Halloween. She testified that she and the defendant were lying on her bed in her bedroom, watching TV, and “something set him off”. He backhanded her across the face, hitting her on the nose. Her nose began bleeding, and blood dropped on to her duvet cover. Ms. N. recalls showing her blood-stained duvet to Mr. M., but only after charges were laid against the defendant.
18Mr. M.’s evidence is that during the same time period, Ms. N. called him one evening in distress, and he went to her home. He saw that there was a mark beside her left nostril, and a cut and a bruise under her nose. He also observed what appeared to be a bloodstain on her duvet cover.
19Mr. N. testified that he had not seen any bloodstain on his daughter’s duvet cover during this time.
20The defendant denies that this incident occurred.
Contextual evidence
Contextual evidence
21Ms. N. also gave evidence about her relationship with the defendant, and about numerous alleged assaults other than those alleged in the information. According to Ms. N., she and the defendant concocted stories to explain the scratches and bruises she suffered, if questions were asked by their parents or others. As set out above, the defendant flatly denies any assaults on Ms. N.
22No objection was taken by defence counsel to the evidence from Ms. N. about other alleged assaults. In fact, counsel in cross-examination elicited evidence from Ms. N. about further alleged assaults, in an attempt to impeach her credibility for not reporting these assaults to police at her first interview.
23In my view, this evidence was admissible to establish the context of the relationship between Ms. N. and the defendant2. This evidence was not properly admissible to establish that the defendant was of bad character or that he had a propensity for assaultive behaviour, and I did not consider it for that purpose.
24I will set out two of the additional allegations of assault against Ms. N.. The first incident is alleged to have taken place in August, 2010, a few days before Ms. N. and the defendant were scheduled to visit a cottage rented by his family. Ms. N. testified that in the course of an argument, the defendant punched her hard in her right bicep. A large, dark bruise, the size of her palm, developed. Ms. N. and the defendant did go to the cottage for a week, and she then returned to Toronto. Her evidence is that when anyone asked about the bruise, she explained that it was the result of a boating accident.
25S.M. testified that he noted a large dark bruise on Ms. Nixon’s right bicep in August 2010, after she had returned from the cottage vacation. He testified that, when questioned by co-workers, Ms. Nixon claimed that she sustained the bruise in a boating mishap at the cottage. Mr. Muir did not believe this, and confronted her later; she admitted that the bruise came from an assault by the defendant.
26Mr. N. also noted a large bruise on his daughter’s right bicep upon her return from the cottage that August. He testified that he did not believe his daughter’s explanation that she injured herself while tubing; he had been tubing, and found the location of the bruise improbable. However, he did not question her further.
27The defendant denies the incident entirely.
28Mrs. H. testified that she and her husband entertained approximately 19 guests, including many children, while at the cottage that week in August. She did not notice a large bruise or a bruise of any type on Ms. N. while at the cottage, and was unaware of any boating accident.
29The second incident is alleged to have occurred in October, 2010. The defendant and Ms. N. both agreed in their evidence that the defendant called Ms. N. while she was at school, asking that she bring him his medication at work; she did so, accompanied by M.K. The defendant came out to the street to meet Ms. N., and Ms. K. waited across the street while Ms. N. delivered the medication. Ms. N. testified that the defendant was angry, and bit her on the shoulder. Ms. K. observed what appeared to be an argument between the defendant and Ms. N.; although she did not overhear what was said, and she did not observe the interaction continuously. She observed Ms. N. put her arms around the defendant, and the defendant push Ms. N. away and leave. When Ms. N. rejoined Ms. K., she noted that there was what appeared to be a bite mark on her shoulder, an injury that had not been there previously.
30The defendant denies the assault. He initially testified that he was not even angry with Ms. N. that day. However, as he was cross-examined about the incident, he became visibly angry, complaining that Ms. N. had allowed her friend M. K. to accompany her and thus to know about his medication.
ANALYSIS
ANALYSIS
31There are no witnesses to the assaults alleged in the information. Assessment of credibility is clearly a crucial task. In undertaking that assessment, I have in mind the direction of Justice Peter Cory in R. v. W. (D.), 1991 93 (SCC), 63 C.C.C. (3d) 397 S.C.C.:
“First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
Evidence of Mr. H.
Evidence of Mr. H.
32The defendant was consistent in denying that he ever assaulted Ms. N.. I do not believe his evidence, nor am I left in reasonable doubt by it, for the reasons I set out below.
33Internal inconsistency. I refer below to some instances of inconsistency in the defendant’s evidence.
34One glaring instance relates to his evidence about the assault with an umbrella alleged to have occurred in August 2009. The inconsistencies are obvious, and were not explained in his evidence.
35A further example of inconsistency in the defendant’s evidence concerns his testimony about his receipt of psychological treatment. In cross-examination, the defendant was asked whether he historically had received treatment for depression and poor impulse control; he denied the suggestion indignantly, explaining that he had seen a psychologist briefly because of an adverse reaction to medication prescribed in the course of dental surgery. Later, his evidence was that he had received psychological counselling “for years”.
36A further example concerns the defendant’s response to the questions from his lawyer as to whether he had ever assaulted Ms. N.. When the question was first asked, the defendant paused noticeably, asked for the question to be repeated, and then stated that Ms. N. had “blown it out of proportion”. This suggested an admission that there were assaults, but that they were exaggerated. However, later, the defendant emphatically and repeatedly denied any assaults.
37Inconsistency with other evidence. The defendant denied or minimised facts that might reflect unfavourably upon him, when there was clear and believable evidence to the contrary. For example, he maintained that he had “no difficulty” controlling his anger at any time, despite the following:
The defendant testified that he made very serious threats of violence to Ms. N. and her father. When pushed on cross-examination, he conceded that when he made these threats that he was “angry”, but not “out of control”, not “furious”.
Mrs. H. testified that the defendant when angry had thrown and broken objects, punched walls, and smashed windows, and that he had damaged Ms. N.’s cell phone and her ring. The defendant did not deny these allegations.
38Animus against Ms. N. It was clear from the defendant’s own evidence that he was resentful of Ms. N. He complained that she nagged him to spend more time with her. He complained that she pressured him to marry her. He was angry that she was not more circumspect about his psychological difficulties and treatment.
39I turn now to a consideration of all the other evidence which I heard, beginning with the evidence of Ms. N.
Other evidence
Other evidence
40Defence counsel submits that Ms. N. is “utterly lacking in credibility” for several reasons:
Recent fabrication. As referred to above, it is alleged that Ms. N. fabricated stories of abuse as revenge against the defendant for terminating their relationship.
Embellishment of evidence. Counsel alleges that Ms. N.’s evidence that there were other incidents of abuse that she did not relate to officers taking her KGB statement is a further indication that she is fabricating.
Internal inconsistency. Counsel also submits that Ms. N. has given “ten different stories” about the same event. Counsel points to factors that he argues are inconsistent with her evidence that she was assaulted by the defendant over a period of 16 months:
Loving notes sent by Ms. N. to the defendant, produced by the defendant in evidence, which do not refer to abuse.
Ms. N.’s failure to complain of abuse earlier to police, teachers, or her father.
I deal with these submissions below.
41Recent fabrication. The accusation of recent fabrication by Ms. N. in reprisal for the defendant’s termination of their relationship is not born out for two reasons.
It was the principal of Ms. N.’s school, and not Ms. N., who contacted police with concerns about the defendant’s behaviour.
Both Mr. M. and Ms. K. gave evidence that Ms. N. had confided in them about assaults by the defendant, and her worries about these assaults, in the months prior to the separation on November 12, 2010. Evidence of these complaints is not corroborative of assault, but can properly be considered to rebut the allegation of recent fabrication3. Both witnesses also gave evidence as to physical indicators of alleged assaults observed by them, some of which relate to the events which form the basis for the charges, and some as to other alleged assaults.
42I found both Mr. M. and Ms. K. to be careful and balanced witnesses. Mr. M. testified that he had never seen the defendant be physically aggressive with Ms. N.; he described the defendant’s usual manner of speaking to Ms. N. as “calm and gentle”. Ms. K., in her evidence about a dispute between the parties which she had observed from some distance, testified as to a bite mark she observed on Ms. N.’s shoulder when she returned from the confrontation, but was careful to say that she did not witness an actual assault.
43I add that the fact that I reject the allegation of recent fabrication on Ms. N.’s part does not, of course, equate with a finding that Ms. N. is being truthful.
44Embellishment of evidence. Ms. N. readily acknowledged that her evidence at trial detailed many more assaults than those she discussed in her KGB statement. As the recording of Ms. N.’s KGB statement was not introduced into evidence, I do not know what questions Ms. N. was responding to in that statement. When asked by defence counsel why she did not discuss all the alleged assaults in her interview with police, Ms. N. testified that she told officers about “the most important ones”, the ones which she considered to be the most serious. She did not think that she was being asked to relate each and every incident of assault; “if I did that, I would have been there all day”, she commented.
45This explanation makes sense to me. I do not believe that Ms. N.’s failure to detail every assault that she alleges she experienced to police detracts from her credibility. It should also be kept in mind that the statement was taken on the same day that she experienced the death threats made by the defendant, a day on which, according to her evidence, she was fearful and confused.
46Internal inconsistency. The allegation that Ms. N. is lacking in credibility because she did not come forward earlier to complain to police or teachers is an allegation of recent fabrication in another guise4. I have already rejected that allegation for the reasons set out above. Ms. N. testified that she did not come forward with allegations of assault to the police or to others in authority in her world because she felt ashamed, and did not want to accept that she was in “that kind” of relationship; because she loved the defendant; because she thought that the defendant would change, and that she could help him; because she did not want to be the person who turned him in. These are all explanations which I accept; a young person in love may be a victim of abuse, but may still be reluctant to take actions that would hurt her partner or terminate the relationship.
47In the same vein, the fact that Ms. N. was writing love notes to the defendant which do not complain of domestic violence is not inconsistent with her participation in a relationship which allegedly was riddled with violence. Some of the notes show a pathetic eagerness on Ms. N.’s part to apologise repeatedly to the defendant for having argued with him. I note also that Ms. N. testified that there were notes she wrote to the defendant that referred to his violence, notes which she says he chose not to introduce into evidence.
48I do not agree with defence counsel’s submission that Ms. N. told “ten different stories” of the alleged assaults. She was internally consistent in her description of various alleged assaults, and her evidence was generally consistent with the evidence of other witnesses (other than that of the defendant). With the exception of her evidence about the assault alleged to have occurred April 1-30, 2010, Ms. N.’s evidence was also detailed, specifying the particulars of place and the actions of the defendant and herself at the time of each alleged assault. I also note that Ms. N. was candid in agreeing to certain facts that might unfavourably reflect upon her allegations of assault, such as the assertion that she sometimes physically restrained the defendant when he tried to leave her company. She did not demonstrate animus to the defendant. Rather, she testified that the defendant was “a great person”, for whom she still had loving feelings, but a person who “needed help”.
49In my view, Ms. N. was a credible witness, who gave her evidence honestly. There are factors that detract from her reliability. I do not think that Ms. N. gave false evidence, but on occasion she appeared to exaggerate. For example, during cross-examination, she testified that the defendant’s assaults were a “daily” occurrence; other evidence established that although she and the defendant saw each other frequently, it was not on a daily basis. I have considered Ms. N.’s tendency to exaggerate in my assessment of the evidence.
50I also found that Ms. N. sometimes had difficulty being precise about the time of certain events. I discuss this issue further below.
51I turn now to a consideration of the evidence which I accept as it applies to each charge.
52Assault charge: April 1-30, 2010. Ms. N. had difficulty recalling when some alleged incidents occurred; she testified that she had wanted to forget the events, as they were a painful memory. Although time is not usually an essential element with respect to charges of assault5, the wide variation in Ms. N.’s evidence as to the time of the alleged assault in the period April 1-30, 2010, coupled with the lack of detail in her description of the event leads me to question whether Ms. N. testified about one actual event, or whether she was piecing together more than one occurrence in an effort to create a coherent account. There is no corroborating evidence available. I am left with reasonable doubt as to whether the Crown has proven this charge, and acquit the defendant accordingly.
53Assault causing bodily harm charge: August 1-31, 2009. Ms. N. was clear, detailed, and consistent in her evidence about the incident. The fact that she suffered a cut to her head that day is corroborated by both the defendant and Mrs. H.
54Mrs. H.’s evidence about this event differs from Ms. N.’s in one respect; she testified that Ms. N. came to her home (complaining of the head injury and asking whether she thought stitches were required) alone, rather than in the company of the defendant. Given the passage of time since the alleged assault, I do not find this minor variation in the evidence to be significant.
55Based on all the evidence which I accept, I am satisfied beyond a reasonable doubt that the defendant assaulted Ms. N. with an umbrella as alleged. However, the evidence does not establish beyond a reasonable doubt that the injury caused by this assault was more than minor and transitory. For this reason, I do not make a finding of guilt on the charge of assault causing bodily harm, but do find the defendant guilty of simple assault.
56Assault charge: on or about December 25, 2009. Ms. N.’s evidence about this event was also detailed and internally consistent.
57Although evidence from Mrs. H. as well as Ms. N. establishes that no assault took place on December 25 or 26, 2009, this does not ultimately assist the defendant, as both the information and the evidence refer to an assault alleged to have occurred during a broader period of time. The information alleges an assault “on or about” December 25, 2009. I heard no argument as to the meaning that should be ascribed to “on or about”. By a plain reading, it is meant to refer to a time period which encompasses some time before or after the date in question. Ms. N.’s evidence was that the assault occurred during “Christmastime”, which I take as a reference to the Christmas holiday season. In my view, that period can come within the period referred to in the information. I also add that in my view, time is not an essential element with respect to this charge, and the Crown was not required to prove that the defence occurred on a particular date.6
58Based on all the evidence which I accept, I am satisfied beyond a reasonable doubt that the defendant assaulted Ms. N. during the Christmas season in 2009.
59Assault charge: October 14-31, 2010. Here again, Ms. N.’s evidence was detailed and internally consistent. Her evidence on when she showed Mr. M. her bloodstained duvet differs from Mr. M.’s. I prefer Mr. M.’s recollection on this point. His recall is not affected by the emotion and confusion experienced by Ms. N. during the time in question.
60The fact that Mr. N. did not happen to notice the blood stain is not significant to me in assessing whether an assault occurred. There is no evidence that Mr. N. was in his daughter’s bedroom at the relevant time period. Nr, N. is a busy single parent. He does not impress me as particularly observant about the details of his daughter’s life. His evidence was that he saw certain signs, such as a broken mirror, which might have suggested that some violence occurred in his home, but he did not pursue any questions raised by these signs. Mr. N. did not remember the defendant’s surname, although the young man had been his daughter’s boyfriend and a frequent guest in his home for more than a year.
61Ms. N.’s evidence about this event is corroborated by Mr. M.’s observation of the bloodstain on her duvet when she called him in distress. On the defendant’s own evidence, he was by this time growing increasingly frustrated with the demands which Ms. N. put upon him.
62Based on all the evidence which I do accept, I am persuaded beyond a reasonable doubt that the defendant assaulted Ms. N. as alleged during this time.
Other alleged assaults
Other alleged assaults
63I am persuaded beyond a reasonable doubt that the defendant assaulted Ms. N. on occasions other than those alleged in the information, and specifically at the times alleged in August 2010 and October 2010. My reasons are set out below.
64With respect to the incident in August 2010, it is significant to me that Ms. N.’s evidence about the large bruise on her upper right arm is corroborated by S.M. and Mr. N, two witnesses who do not appear to have animus against the defendant. I have already commented on the credibility of S.M. Despite the fact that the defendant was alleged to have assaulted his daughter, Mr. N. had nothing negative to say about him. He testified that he had never seen the defendant assault or be rough with Ms. N., and that the only criticism he had of the defendant related to his appearance.
65I believe that Mrs. H. gave her evidence honestly; on cross-examination, she readily admitted certain occurrences that were not helpful to him, such as his past difficulties with impulse control. However, I am concerned about the reliability of her evidence with respect to the lack of any bruising on Ms. N.’s arm in August 2010. I am not sure she would have noticed a bruise; as Mrs. H. admitted, she was entertaining many people at the cottage that week. Aside from that, I have some concern that her recollection of that week may have been tainted by discussions with her son. Although Mrs. H. was excluded from the courtroom prior to giving her evidence, during her testimony it became clear that she was aware of the particulars of Ms. N.’s evidence about certain incidents. When questioned about this by the Crown, Mrs. H. explained that she had attended with her son at his lawyer’s to review disclosure and the evidence.
66With respect to whether Ms. N. sustained a large bruise at the time in question, I prefer the evidence of S.M. and Mr. N to that of Mrs. H.
67With respect to the assault alleged in October 2010, the evidence of Ms. N. is corroborated by Ms. K., whom I have already found to be a credible witness. It is clear that the defendant was angry with Ms. N. on the day in question.
68My findings with respect to these other assaults were helpful to me in understanding the dynamics of the relationship of the defendant and Ms. N.
CONCLUSION
CONCLUSION
69I find the defendant guilty of:
Assault on S.N. sometime between August 1-31,2009;
Assault on S.N. on or about December 25, 2009;
Assault on S.N. sometime between October 14-31, 2010;
Uttering threats to cause death to S.N. and D.N. on or about November 22, 2010;
Failure to comply with his recognizance by communicating indirectly with S.N. sometime between November 25, 2010 and December 1, 2010.
Released: January 6, 2012 Signed: Justice E. B. Murray
Footnotes
- Ms. N. testified that she was at home with her father on the morning of December 25, 2009, and that he drove her to the H. home where she joined the defendant and his family in the afternoon. She testified that she was at work on December 26th.
- See R. v. G. (L.W.), A.J. 653 (C.A.), R. v. Sandhu, 2009 ONCA 102
- The Law of Evidence in Canada, 2nd edition, Sopinka and Lederman, LexisNexis/Butterworths, Chapter 7.6
- The Law of Evidence, supra, Ch. 7.12
- See R. v. B.(G.), 1990 7308 (SCC), 2 S.C.R. 30
- R. v. B.G., ibid