WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486(4.1) of the Criminal Code. This subsection and subsection 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (4.1), read as follows:
486.— (4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness, or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
L.W.1
Before: Justice Peter T. Bishop
Heard on: April 4, 10, 2012
Reasons for Judgment released on: April 18, 2012
Counsel:
- Peter Keen, for the Crown
- Richard Courtis, for the accused L.W.1
BISHOP J.:
Charges
1L.W.1 is charged as follows:
Between June 1, 1986 and June 30, 1986 at the First Nations Territory of S[…] in the said region did point a firearm at A.L., without lawful excuse, contrary to Section 84(1) of the Criminal Code of Canada;
Furthermore, in the summer of 1986, in the First Nations Territory of S[…], did assault A.L., causing bodily harm to her, contrary to Section 245.1(b) of the Criminal Code of Canada;
Furthermore, in the summer of 1986, in the First Nations Territory of S[…], did commit a sexual assault with a weapon (to wit: a bottle) on A.L., contrary to Section 246.1 of the Criminal Code of Canada;
Furthermore, between January 1990 and March 1991; in the First Nations Territory of S[…], did commit an assault with a weapon (to wit: a screwdriver) on A.L., contrary to Section 267(1)(a) of the Criminal Code of Canada;
Furthermore, on or about November or December, 1990, in the First Nations Territory of S[…], did commit a sexual assault on A.L., contrary to Section 271 of the Criminal Code of Canada;
Furthermore, on or about November or December 1990, in the First Nations Territory of S[…], did without lawful authority, confine A.L., contrary to Section 279(2) of the Criminal Code of Canada;
Furthermore, on or about June or July of 1992, in the First Nations Territory of S[…], did point a firearm at L.W.2, contrary to Section 86(1) of the Criminal Code of Canada;
Furthermore, on or about January 16, 1991, in the First Nations Territory of S[…], did commit a sexual assault on A.L., contrary to Section 271 of the Criminal Code of Canada;
Furthermore, on or about May or June, 1992, in the First Nations Territory of S[…], did assault A.L. with a weapon (to wit: a stick) contrary to Section 267(1)(a) of the Criminal Code of Canada;
Furthermore, on or about May or June, 1992, in the First Nations Territory of S[…], did maim A.L. by breaking her arm, committing an Aggravated Assault on her, contrary to Section 268 of the Criminal Code of Canada;
Furthermore, on or about 1994, in the Town of Sioux Lookout, did commit an assault with a weapon (to wit: a fork) on A.L., contrary to Section 267(1)(a) of the Criminal Code of Canada.
Crown Evidence
2The Crown called two witnesses, Allan Nodie, a registered nurse with Health and Welfare Canada. He was practicing in S[…] for approximately two and one-half years but did not see A.L. as a patient. He reviewed medical records and brought various charts to the court.
3The first exhibit was medical records and an x-ray. The x-ray film was taken on May 22, 1992 at the Sioux Lookout Zone Hospital. A.L. reported that she fell the day before. There was an obvious deformity with pain and suffering. Dr. D. McLoughlin stated that there was a short oblique fracture in the distal one-third of the ulnar shaft with fragments in acceptable position and in alignment.
4There was an out-patient emergency department report from July 6, 1992 relating to removing the cast.
5There was a further out-patient department report from the Sioux Lookout Zone Hospital dated February 13, 1989 wherein the complainant had some pain and swelling of her forearm and there appeared to be a foreign body lodged there which was removed. It was stated that a bullet ricocheted off something and entered her arm.
6The nurse was only asked to produce certain records which are incomplete and he could not conclude that the broken arm was inconsistent with a fall on a boat gunwale or caused by blunt force trauma.
Evidence of A.L.
7She is forty four years of age and had a common-law relationship with L.W.1 from 1986 until 2001. They have five children, one of whom is deceased.
8She stated that the relationship was physically and verbally abusive and she was scared to leave the community because he threatened to kill her if she did and she was concerned that he might go after her family.
9She did not report any of the matters for over fifteen years because she was fearful and the Northwest Patrol (OPP) take days to respond being situated in Sioux Lookout, Ontario.
10She disclosed the abuse to the police in 2008 or 2009 when she stated the accused showed up in her yard in Sioux Lookout and threatened her younger daughter.
11She stated that on one occasion she was knocked out for six to seven hours in her own home and woke up in bed with a sore jaw and a tooth missing. Her last recollection was at 11:00 p.m. and she does not remember what happened. She stated that she was not consuming alcohol but believed the accused knocked her or made her unconscious.
12She separated from the accused in August of 2001 after he got a compensation cheque and went on a drinking binge in Sioux Lookout.
Incidents
13Count #1 – She stated that they were peeling logs to build a cabin with the accused's brother. She was laughing with the accused's brother L.W.2. The accused called her by name from twelve feet away and picked up a twelve gauge shotgun which he used for hunting, and pointed it at her. It looked like he was ready to discharge the gun and she thought he was going to shoot her and she thought about her children. He fired the gun and she felt the BB's go beside her.
14Count #3 – During the summer of 1986, they were living at the white log cabin and he came back and she could smell that he was drinking. He came into the bedroom and took a beer bottle and inserted it into her vagina. She was not drinking but he pushed her legs apart. He put the small end in. She was disgusted and he also inserted a Cover Girl make-up bottle in her vagina. She did not have the strength to push him off. He called her "Cover Girl" from time to time thereafter.
15Count #4 – Between January and March, 1991, she had gone to the clinic with her daughter, E.2 and K. and the accused was upset because she was gone too long. They fought. He stabbed her in the back with a screwdriver which broke the skin below her right shoulder. It happened very quickly. She does not know whether there is a scar there or not.
16Count #5 & #6 – In November and December, 1990, the complainant was pregnant with E.1 and he tried to suffocate her. He had been drinking and attacked her and she struggled. He tried to suffocate her with a pillow and tied her feet and she started to black out. She read about this type of occurrence in detective stories. He tied her feet with a string but she untied them and crawled back into bed.
17Count #7 – In June or July of 1992, he pointed a firearm at his brother, L.W.2. L.W.2 drowned subsequent to this occurrence. He has been deceased for approximately eleven years. She stated that the brothers were drinking and a fight broke out in a back room. She went and hid her daughters in the bush. L.W.2 was on the floor and L.W.1 grabbed a 303 rifle and put it two inches from L.W.2's head and discharged the gun. There was a hole in the floor.
18Count #8 – In […] of 1991, the complainant went into labour and the child E.1 was born but did not live more than one hour and twenty minutes. L.W.1 had been out drinking. She went home to be alone. He laid down beside her and wanted to make-out and have sex and that was the last thing on her mind. He went ahead anyways. She did not fight back and he had sexual intercourse with her.
19Count #9 & #10 – It is alleged in May and June, 1992 when the parties were living on an island the accused hit her with a broom stick. She lifted her arm to block her face and her arm was broken. Three days later she went to the S[…] clinic and then to Sioux Lookout for a cast. She told them that she slipped in a boat and hit her arm on a gunwale. The accused threatened her. She was not clear which arm was broken, but had one arm broken by the accused.
Cross-Examination of A.L.
20With respect to Count #1, she conceded that she had no children at the time as stated in Examination in Chief, so she could not have been worried about her children.
Evidence of L.W.1
21He met A.L. in 1984 when they were both attending residential school. He admits that he has been incarcerated on and off and that he and the complainant have five children. He states that he did not threaten to kill her and has never threatened to kill her.
22In November of 2009, she told the police that she was in her yard, which is not true. He was in front of her house as their son Harry had been drinking and he was nervous that he might not get home safely alone. He walked his son, Harry to the home and was across the street and there was some yelling back and forth between the complainant and the accused. He was charged for obstruction and breach, as there was a court order not to be near the children or A.L.
23He states that he received a compensation cheque from a firearm injury from the Criminal Injuries Compensation Board in the amount of fourteen thousand dollars. He received this in the late 1990's and not as stated by the complainant.
24He entered into a relationship with J.M. while still in a relationship with the complainant and that caused stress for her. J.M. passed away in 2010 and he had two children with her.
25With respect to pointing the firearm charge in June of 1986, he did not own a twelve gauge and states that did not happen. They were cutting logs with his brother L.W.2 helping. They were a new couple, in love and getting along. When she stated that all she could think of was herself and her children, that was untrue as they did not have any children until 1988. He never owned any guns and he had been prohibited from owning, possessing or using any firearms for a long time.
26With respect to the summer of 1986 charge, he denies punching her between the eyes. He has never been jealous of her.
27With respect to Count #3, the sexual assault with the beer bottle and the Cover Girl make-up bottle, he states that this did not happen. He was in jail in September of 1986 for break and enter and the complainant helped him to get parole. He did not insert a beer bottle in her vagina and she has never worn make-up. He has written her from the jail but has never called her "Cover Girl" and has known her as "Angel in Blue".
28With respect to Count #4, the stabbing with a screwdriver, he denies doing that.
29He also denies attempting to suffocate the complainant with a pillow and he did not tie her legs together with string for sex or for any other purpose. He states that she read detective stories and true romance stories and the inference is that she read about those things in paperbacks.
30With respect to pointing the firearm at his brother in 1992, L.W.2 drowned in D[…] Bay. He denies having a 303 rifle and he denies pointing or discharging the firearm at this brother.
31With respect to Count #8, the sexual assault on January 16, 1991, he came from C[…] Lake on a skidoo. He stated that it would take two hours on land but if he had a fast machine it would take one and one-half hours. The child E.1 was born in the clinic. The baby did not survive and made one noise"enehnn". He took the baby and held her until the nurse's assistant, Elsie Shakakeesic took the baby back. It was very emotional for him. He states that he went home and that the complainant stayed at the clinic and she flew out the next day or shortly thereafter. He did not sexually assault her. He did not want to have sex. He wasn't there for sex and did not do that.
32With respect to the aggravated assault in May or June, 1992, he states that he did not hit her. She went to the clinic three days later to have a cast on her left arm. He did not see how she broke her arm. She told him that she fell in the boat.
Cross-Examination of L.W.1
33The accused indicated that sometimes he would hunt moose, ducks or geese as he is an aboriginal male and subsistence hunting was practiced. He does not make a habit of carrying a gun with him or in a boat as he has been prohibited from owning or using a firearm since he was fourteen years of age. He is also on some pain killer medication, anti-depressants and sleeping pills.
34He remembers living together in April of 1986 with the complainant and he remembers most of the occurrences. He and the complainant were involved in breaking and entering cabins for food, alcohol and other belongings. Some of the offences were committed while under the influence of alcohol.
35He admitted his criminal record filed as Exhibit #3. None of the assault convictions relate to A.L. or his subsequent partner, J.M. In 1986, he recalls cutting logs and dragging them down to the lake but does not recall whether there was a gun in the boat. He stated that it would be unsafe to have a gun in the boat. During the years that he and A.L. were together they both drank, not heavy-heavy drinking but they drank. He was never concerned about her having any affair.
36He states that he was in jail a lot. There could have been arguments but there was no real problem with Annette and that "he, I and we drifted apart". He admitted that he has problems as he was at residential school. Sometimes he would drink and get arrested. Eventually he would go home after he got out of jail. He never talked to her about any relationships she might have with other men.
37He denies ever having any blackouts. He didn't recall A.L. telling him that P. was there and he denies any physical violence with A.L. He stated that he sent letters to A.L. from jail but did not call her names and did not use any objects for sexual purposes.
38He does not remember exactly the day A.L. took the girls to the clinic nor the incident with the screwdriver. He denies any fight with family members and there was no hole in the cabin floor.
39He was quite emotional when describing the death of his daughter, E.1, as it hurt him to recount those events.
Decision
40Having heard all of the evidence, I am finding that the Crown has not proven each and every charge beyond a reasonable doubt. I have addressed to the principles in R. v. W(D) (1991), 63 CCC (3d) 397 SCC. The issue is not which version of the matter is true or whether to believe the complainant or the accused. The issue is whether the Crown's case has been proven beyond a reasonable doubt:
If the accused is believed the Judge is to acquit;
If the accused is not believed, there may still be reasonable doubt as a result of the accused's testimony;
Even if the accused's testimony does not raise a reasonable doubt, there may be a reasonable doubt on the basis of the evidence that is accepted.
41Here the evidence is basically the testimony of the complainant and the defendant. The court must assess and evaluate the evidence.
42The accused gave a very reasonable and believable explanation for his interaction with A.L. in 2009 as he walked his young son, Harry home for safety reasons. The evidence of A.L. that he was in the yard and yelling and threatening her or her daughter is less believable.
43The first occurrence happened approximately twenty six years ago. Both he and A.L. were breaking into camps together to get food, alcohol and other possessions to survive. It is a logical inference that both he and A.L. were consuming alcohol at that time.
44The accused's evidence that he and A.L. simply drifted apart is believable coupled with the fact that he entered into a new relationship with J.M. The accused's evidence that he received the compensation cheque in the late 1990's and not in 2000's is equally believable. He denies spending all the money on alcohol and admitted to buying a couple of outboard motors.
45The accused admitted that his record is alcohol related but not all of the convictions are associated with alcohol.
46With respect to Count #10 concerning the broken arm, the Crown instructed the police to only seize certain medical records and not the whole medical record. The nurse indicated that the broken arm is not inconsistent with a fall, but he is not an expert in fractures. The Court is also left with prior inconsistent statements given to the nurse the physician and the accused himself as she told at least three individuals that the arm was broken by falling in a boat and hitting the gunwale. Without further corroboration which possibly could have been obtained from an orthopaedic surgeon, the court is left in a doubt as to the causation of the broken arm.
47The complainant admitted that she has her dates wrong with respect to the pointing of the firearm charge while harvesting logs as she did not have children at the time. The Crown submits that this enhances her credibility but begs the question as to what exactly she is remembering from incidents so far in the past. It would appear from the evidence that the charge of pointing firearm has been changed to an assault with a firearm as the firearm was discharged and she felt the BB pellets fly past her head. The accused described this as embellishment and denies having a firearm at that time and it would not be his practice to have a firearm while cutting logs in May or June. He further stated that he was prohibited from owning firearms for a long time.
48The Crown submits that the accused should not be believed because he wouldn't admit to very basic matters. That is not the perspective that the court has. The accused stated that there wasn't a significant problem and that he had never had blackouts. He could not describe arguments and stated there were no bad arguments. Because of this and because of other generalizations admitted to by the accused, that many First Nation people carry guns for subsistence hunting, that he must be lying and therefore the complainant's should be believed over the accused's evidence and he is therefore culpable.
The Crown submits that the accused's record is corroborative of a person that you would expect to be dysfunctional person and he was regularly intoxicated. The accused would make some concessions and state that he could not really remember. The Crown also submits that the accused is an unsavoury person because of his record and is less believable and if the accused was a witness in a trial, the court would have to address the principles in R. v. Vetrovec, [1982] 1 S.C.R. 811. That position is not accepted by the court, as the ratio in Vetrovec deals with the danger of accepting the uncorroborated evidence of an accomplice. Here there is no accomplice, there is no jury and the crown appears to be reversing the onus to the accused. The onus is always on the crown. On one occasion the crown raised his voice and told the accused that his evidence was absurd. The accused is an aboriginal male, the survivor of a residential school, with little formal education and not articulate. He has no convictions for spousal assault.
49The Crown submits that the complainant was not shaken in her evidence and corrected any errors that she could as soon as she realized that she had made an error. This begs the question as to why the complainant is making fundamental errors with respect to the evidence. The complainant's errors coupled with the passage of time cause the court to have doubts about the veracity of her evidence. In fact, the complainant gave no evidence with respect to Count #11 and #5 and invites the court to make not guilty verdicts on those two counts.
50The Crown and Defence agree that all charges would be heard at the same time. In that regard, the evidence of the accused's good character was not put into evidence. He admitted his convictions, he admitted that consumption of alcohol and that some but not all of the charges on his record were alcohol related. It does not flow from there logically that the allegations before this court in terms of the assaults on A.L. and the pointing of a firearm were alcohol related except for the assertion of A.L. which he denies. There is also no corroboration that he would regularly fight with family members.
51The fact that the charges were all tried together gives the trier of fact a better understanding and a better view of the demeanour and veracity of each witness. There is no reasonable explanation why it took so long for A.L. to report the incidents as she moved to Sioux Lookout in 2004, where regular policing is in effect, but it took an occurrence in 2009 to bring these matters to the attention of the police. L.W.1 pled guilty to those 2009 charges. The blanket disclosures at one time do not increase the credibility of the complainant. The court must apply the principles in R. v. W(D) (1991), 63 CCC (3d) 397 SCC to each and every charge.
52The court in these circumstances cannot register convictions beyond a reasonable doubt as the accused was equally adamant and equally believable with respect to what actually happened. Both the complainant's and the accused's memories are blurred by time and in some instances by simply being unable to remember. In each incident before the court, the accused denied he was drinking. The Crown failed to call other corroborative evidence with respect to when the complainant left S[…] after the death of E.1. This would have been available by obtaining complete medical records which could tend to corroborate the version of A.L. or the version of the accused. Similarly, there is no corroborative evidence about the assault with a screwdriver which could have been obtained possibly through a medical examination and a/or photograph of the area where the skin was broken, if a scar existed, and if the accused caused that injury.
53The accused gave more detailed information with respect to Count #8 on January, 1991 as to where he was, how he travelled and arrived back in the community, the noise that the child made and what he did after the child passed away and actions of the complainant. Both the accused and complainant testified that sex was the last thing on their mind. It was emotional for both the accused and the complainant as they both broke down in the court reliving that terrible event.
54There is really no magic in the word "corroboration". It is a matter of common sense. What is sought is independent evidence which makes it probable that the complainant's testimony with respect to the violent issue or issues is true. This has not been presented nor produced on all of these charges.
55I am suspicious of the accused's testimony but suspicion is not sufficient to form a conviction beyond a reasonable doubt. For all of those reasons, a not guilty verdict must enter on all of these charges.
Released: April 18, 2012
Signed: "Justice Peter T. Bishop"