WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 Order restricting publication — victims and witnesses.
(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) Justice system participants. — On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 Offence.
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
K.D. and M.M.
Before: Justice J. Bliss
Heard on: October 13, 16, 19, 23, 31, November 1, 2, 3, and 22, 2017
Reasons for Judgment released on: December 6, 2017
Counsel:
- S. Sullivan — counsel for the Crown
- M. Wyszomierska — counsel for the defendant K.D.
- L. Giordano — counsel for the defendant M.M.
BLISS J.:
Background and Charges
1On December 23, 2016, M.D., K.C., and J.D. walked into the Barrie Police Service Community Police Station at the Barrie bus terminal to report on the abuse being suffered by K.D.'s children, and the living conditions they had to endure at the hands of K.D. and M.M. An investigation ensued. Statements were taken, written and video-recorded, photographs and videos documented by K.C. on her smartphone were provided to police and, by the end of the night, K.D. and M.M. found themselves arrested and charged with a variety of offences relating to their children encompassing acts between November 1, 2016 and December 23, 2016 as well as particularized offences on December 13th, December 22nd, and December 23, 2016.
2K.D. is the mother of B.D., M.D., G.D., J.D. and newly born N.D. During the time period when the alleged offences occurred, B.D. was 16 years old, M.D. was 13, G.D. was 10 and J.D. was 7 years old. M.M. is K.D.'s common law partner and for all intents and purposes the stepfather to B.D., M.D., G.D. and J.D. and the biological father of N.D. The trial before me encompassed charges of failing to provide the necessaries of life to each of the four children contrary to section 215(2)(a)(i) of the Criminal Code as well as charges of assault during various time periods alleged upon each of the children save for B.D. and N.D.
3The prosecution called evidence from the two police officers who were on duty when approached by M.D. and J.D. and K.C. K.C. and M.D. also testified. While M.D. and K.C. testified about the turmoil in the house and actions that were assaultive towards the children, their evidence did not disclose any basis for the fail to provide necessaries charges. As a result, the defence applied for a directed verdict or non-suit. The application was not opposed by the prosecution and I dismissed those charges against K.D. and M.M. K.D. testified in her own defence and denied assaulting any of her children or witnessing any assaultive conduct by M.M. M.M. called no evidence.
4I am left to consider whether the prosecution has proven beyond a reasonable doubt that:
K.D. and M.M. between the 1st day of November 2016 and the 23rd day of December 2016…did commit an assault on G.D., contrary to Section 266 of the Criminal Code;
And further that K.D. and M.M. between the 1st day of November, 2016 and the 23rd day of December, 2016…did by word of mouth knowingly utter a threat to M.D. to cause death to M.D., contrary to Section 264.1(1)(a) of the Criminal Code;
And further that K.D. on or about the 13th day of December, 2016…did in committing an assault upon M.D. use a weapon to wit: a pot, contrary to Section 267(a) of the Criminal Code;
And further that K.D. on or about the 23rd day of December, 2016…did commit an assault on M.D., contrary to Section 266 of the Criminal Code;
And further that K.D. on or about the 22nd day of December, 2016…did commit an assault on J.D., contrary to Section 266 of the Criminal Code;
And further that K.D. on or about the 22nd day of December, 2016…did commit an assault on K.C., contrary to Section 266 of the Criminal Code;
And further that M.M. on or about the 21st day of December, 2016…did commit an assault on M.D., contrary to Section 266 of the Criminal Code;
And further that M.M. between the 1st day of November 2016 and the 23rd day of December, 2016…did commit an assault on J.D., contrary to Section 266 of the Criminal Code.
Evidence of Police Officers and Initial Disclosure
5On December 23, 2016, Cst. Waugh was working with Cst. Breedon out of the community policing office at the Barrie Bus Terminal. At 8:35 p.m., they were approached by K.C., M.D. and J.D. and told by a visibly upset M.D. that they were suffering abuse at their residence and needed help. K.C. offered that she had videos and photographs that she had sent to her mother, S.C. The girls did the talking while J.D. remained quiet and by M.D.'s side. When M.M. showed up at the front door to the station, the police were alerted by a child's or children's screams as they saw him at the front door. M.M. was advised of the allegations and told to go home and wait for further police contact. K.C.'s mother was contacted and she came to the office and ultimately drove the three children to the police detachment for further interviews.
6At the station, both M.D. and K.C. provided video-recorded statements. Both were admitted at trial pursuant to s.715.1 of the Criminal Code.
Evidence of K.C.
7To understand why and how I reached the conclusions I have, it is necessary to recount some of the aspects of the evidence that was heard during this trial. According to K.C., she was at the K.D.'s residence at […] Drive in Barrie almost every weekend, P.A. days and during Christmas holidays. She met K.D. and babysat for her and M.M. while M.D. was residing in a foster home. When M.D. returned to the family home, she and K.C. became best friends and "like sisters". K.C. considered K.D. to be like a second mother and, on the surface at least, their Facebook messages to one another seemed to demonstrate genuine affection between the two.
8K.C. described a house in which G.D., M.D. and J.D. were subject to ongoing abuse by K.D. and M.M. Although not present for the event, she said that a week before going to police, K.D. hit M.D. on the head with a pan so hard that the handle broke and some time later saw the broken pan in the kitchen. Later on in her statement to police, she revised when this happened to a couple of days before December 23rd.
9Apparently, the abuse was not confined to K.D.'s children. K.C. was also the target of K.D.'s wrath. One of K.D.'s rules was that if you moved from the table before you had eaten everything on your plate, you would be slapped across the face or have your hair pulled and forced to eat. K.C. testified that she was at K.D.'s house for dinner on December 22, 2016. She didn't eat one of her mushrooms and went to put it in the sink. Keeping with the rule, K.D. slapped her in the face.
10The picture that K.C. presented to the police was that K.D.'s children were virtual slaves. All they would do is clean and she and M.D. were never able to just hang out. The same day she herself was struck, December 22nd, K.C. told police that that night she saw K.D. hit G.D. on his bottom because he wasn't cleaning up the garbage and dog feces that, according to K.C., was all through the basement. Her evidence was that K.D. came over to where G.D. was, and if he wasn't cleaning, she would smack him across the face or bottom. It appears from her evidence that at first G.D. was struck across the face, but 20 minutes later, G.D. and J.D. were sitting and talking and not cleaning so K.D. went to where the boys were sitting, pulled down G.D.'s pants and smacked him on his bare bottom leaving a mark. K.C. testified that she saw K.D. also hit M.D. M.D. and K.C. were not allowed to go to bed until the house was clean and were up until 3:00 a.m.
11On the morning of December 23, 2016, K.C. recounted how they woke up at 5:00 a.m. They had to clean the living room and take care of the baby while K.D. lay on the couch watching a movie. The dining room was still a mess. When J.D. didn't clean up as he was supposed to, K.D. smacked him on the back of the head leaving a tiny red mark.
12The events of December 23rd seemed to be the impetus for the three children to go to the police. As K.C. recounted, she and M.D. went upstairs and made a plan to leave the house and have K.C.'s mother pick them up. They went downstairs with their snow gear on like they were going to take the garbage out. K.D. saw that the kitchen had not been cleaned so she smacked M.D. on the back of her head. "Every single day, like every hour she smacks one of them" K.C. testified. K.C., M.D. and J.D. walked out of the house to "take the garbage out" and ran.
13The plan to call K.C.'s mother seemingly fell by the wayside. K.C.'s mother was apparently at their home but, according to K.C., it never dawned on her to call her mother. Instead, after leaving K.D.'s residence, the three children went to S.'s house, a friend of M.D.'s. K.C. knew that S.'s mother worked for the Children's Aid Society and described her as wonderful person, but they did not speak to her about what was going on. They didn't even go into S.'s house but waited on the porch while S. got money from her mother for pizza and drinks. The four of them then walked to a nearby plaza and to a convenience store and then a pizza place. Then they all then went to Johnson's Beach. S. apparently only stayed at the beach for 30-40 minutes before returning home. At the beach, they built a fort and "had fun". As it got colder, they walked downtown. As they did, M.M. began calling K.C.'s phone and then messaged K.C. that she would never be allowed at their house or allowed to go outside. K.C., M.D. and J.D. went to a Tim Horton's and stayed for about three hours. Their plan apparently, was to then go to the Barrie Bus Terminal, sleep there for a few hours and then call K.C.'s mother in the morning to pick them up. It was there they came across Csts. Breedon and Waugh walking out of their office.
14One of the things that K.C. had begun to do in November, 2016 was to try to document the living conditions in K.D.'s household and the injuries caused by the discipline or punishment meted out by K.D. and M.M.
15One of the videos that K.C. took was on November 12, 2016 at 11:53 a.m. She testified that M.D. told her to take the video. K.C. wanted to gather information to help out her best friend and get her "out of there". In the video, J.D. had got into trouble because he had coloured when he was supposed to clean so he got smacked on the face and bottom. K.C. did not see what actually happened, but afterwards, J.D. came downstairs to where the girls were and she saw "his whole face was red and his bum had hand prints all over it". K.C. said she did not take a photograph of J.D. because she was "shocked" and "scared" and was preoccupied with checking to see if J.D. was okay.
16K.C. did take photographs of J.D.'s red face after she said K.D. assaulted him on December 22, 2016 when J.D. forgot to pick up a pop bottle. K.D. came from the living room, walked into the dining room to where J.D. was standing and into the kitchen. She grabbed his arm and squeezed it leaving scratch marks. K.C. testified that K.D. punched J.D. with a closed fist causing him to "go flying". The time of the photograph was at 6:37 p.m. What is depicted in the series of photographs showing redness on J.D.'s cheek and arm and whether it was as a result of any act by K.D. is the subject of considerable dispute.
17When asked in her December 23, 2016 statement if there were any other incidents of abuse that she had not told police about, K.C. mentioned that M.M. would threaten the children that he was going to kill them and punch them and beat their faces.
18As her statement concluded, K.C. did not hold back calling K.D. an animal abuser, child abuser, and someone who smokes marijuana in front of her children. At trial, she testified that she was scared of K.D. and she treated her children like slaves.
19On October 15, 2017, the day before K.C. was scheduled to testify, she provided the investigating officer with a further statement. In it, she said that "there were a couple of things that she and M.D. didn't tell police". The phrase is a curious one as she claimed they had not discussed what either had told police. She explained that she had been cleaning out her Snapchat account and came across videos and photos that she had forgotten about.
20While the photographs of K.D.'s residence showed rooms in disarray with clothes strewn everywhere, the new statement and her testimony described horrific conditions and unfit parenting. She recalled now used diapers discarded in the basement where J.D. and G.D. and M.D. slept, dogs not let out and left to defecate in the basement on clothes lying on the floor, and flies and maggots and nests of bed bugs in the boys' room. No photographs were taken of the bed bugs or dog feces or the bites that all the children suffered. K.C. testified that M.D. had bites all over her. M.D.'s evidence was that she did not.
21It was admitted that the family had suffered with a bed bug infestation, but being unable to afford to buy new mattresses, the mattresses were not used while efforts were made to get rid of the bugs.
22K.C. said she told her mother about the bed bugs and she herself would come home with bites. Even though her mother ran a home daycare business, K.C. was not stopped from visiting the residence and staying overnight, but instead when she returned home, she would shower and wash her clothes as soon as she walked in the door.
23The smell in the basement living room area, not mentioned in the December 2016 interview with police, was described as "incredible". This was next to M.D.'s bedroom and where presumably she and M.D. would sleep when she stayed over. It was rancid with dog feces, flies and maggots and yet she continued to visit and fail to document any of this apart from two photographs of a single fly.
24K.C. also recounted how K.D. was sick or hurt and stayed on the living room couch for a solid two months unable to get up to even go to the bathroom. Two or three times a day, K.C. testified that K.D. would go to the bathroom in a bowl or pot and then make M.D. dump it out in the backyard or washroom. She claimed that K.D. and M.M. were very conservative with soap and water. She did not see M.D. clean out the bowl but they would use it when having breakfast or K.D. or M.M. would clean it when using it to cook dinner. She also claimed that M.D. would be forced to eat cereal out of the same bowl.
25K.C. also testified that on another occasion, she and M.D. had returned home from school with G.D. and J.D. to find the front door locked. The front curtains were open and they could see K.D. and M.M. having sex on the dining table. When they eventually got into the house, K.C. testified that the "mess" from the sexual intercourse, presumably referring to semen, was never cleaned off from the dining table where they would later eat.
26Another time, K.C. said that in November or December, she and M.D. were cleaning M.D.'s room. M.D. had eaten chocolate bars and when K.D. saw what she had done"tapped" the back of her head for failing to share.
27K.C. had testified to being assaulted by K.D. when she had not eaten a mushroom off her plate. She also testified that K.D. was violent towards her a second time. She initially said that it occurred at 10 o'clock on the on the day they went to the police but then changed that to having occurred the day before. K.C. was sitting on the living room couch texting her mother and sending her photographs. She said that K.D. grabbed her phone and told her "I know what you're doing". When K.C. grabbed the phone back, K.D. took off her sandal and tapped it hard on her head.
28M.M. was pretty much absent from K.C.'s recounting of abusive and assaultive incidents in K.D.'s household; however, in her October 2017 statement, she told police about a particularly shocking and disgusting episode. K.C., G.D., M.D. and J.D. were in the basement cleaning up. They shook the laundry to get the dog feces out of the clothing, but argued about who would pick it up and put it in the garbage. No-one wanted to, so they put it underneath the couch in the living area of the basement. K.C. testified that M.M. was called down to inspect the basement and found dog feces under a cushion. No-one would say who put it there. K.C. claimed that M.M. told them that since no-one would say who put it there then they would all, except K.C., have to eat it. She said that M.M. had J.D., M.D. and G.D. eat the dog feces. J.D. and M.D. ate it and then went to wash their mouths out. G.D. hesitated but relented. He looked as though he would vomit. As he walked past M.M. to wash his mouth out, she said that M.M. grabbed G.D.'s wrist, and told him never to lie to him. This took place the day before she and M.D. and J.D. went to the police and yet was not mentioned or even alluded to in K.C.'s December 23, 2016 statement, nor by M.D. in her statement to police or testimony. Curiously, K.C. did talk about "dog poo" when recounting what had taken place with G.D. not cleaning the garbage and dog poo but when invited to provide any other major incidents of abuse that she could remember, said nothing of this incident even though she did tell police of M.M.'s threats to punch and beat the children.
29K.C. also disclosed an incident with a Febreze bottle that had occurred some time in December, 2016 when K.C., G.D., J.D. and M.D. were sorting laundry in the basement. The bottle got broken and when M.M. found out, he threw the bottle at G.D. then ordered him to go upstairs. There was yelling and when they went upstairs G.D. was in his room.
30K.C. was shown her photographs that depicted injuries on the children said to have been caused by K.D. Photo 34 showed scratch marks on M.D. that were caused when she tried to pull away from when K.D. tried to grab her. Photo 44 was of J.D.'s face after the incident on the main floor and photos 45 to 47 showing marks around his left arm after K.D. grabbed him. Photographs 48 and 49 showed a bruise to M.D.'s left knee from where K.D. had hit her with her fist, and marks on her face and chest area in photos 52 and 53 were also said to have been caused by K.D.
31K.C. documented the injuries and the living conditions to be able to provide the police with proof of what was going on beyond just their word. It was her idea. She commenced her cross-examination by saying that K.D. scared her. It was like every hour someone would get hit so she started taking photographs in November, 2016 to take to the police to show how awful it was in the house.
32Slightly different from the picture that K.C. painted of K.D. simply laying on the living room couch, watching movies and treating the children like slaves, it emerged that in November and December of 2016, K.D. had back issues that were so severe that at times she was unable to get off the couch and would have to use a wall or one of the children or M.M. for support. It was not that K.D. was completely immobile, but her limited mobility was certainly on display through the booking video on her arrest on December 24, 2016. In it, walking and standing was clearly difficult for her.
33The cross-examination also changed the perspective of the house. Some of the more abusive and disdainful acts said to have been directed by K.D. were not corroborated in any way by one of the people who was the very target of the acts. While corroboration of a witness' evidence is not necessary, K.C.'s testimony was prone to exaggeration, excess, and melodrama such that it would be unsafe for me to rely on aspects of her evidence where her's is the only evidence that supports an account.
34I do not accept as credible or reliable, K.C.'s tale of K.D. using a pot, later used for food, to urinate. I do accept that due to her back issues, K.D. was unable to easily manoeuvre around the house and needed the children to assume the household tasks of cleaning. It may well have been that M.M. did not do his fair share as he was trying to shoulder much of the financial responsibility for the house alone, but it makes sense that the children did not like cleaning, felt burdened and put upon, and as the pictures attest while K.D. was recovering, the house was in disarray.
35When challenged that the story of the children being forced to eat "dog poo" was a lie, K.C. disputed that and claimed that it was the very reason they left and yet there was not a single reference to this episode at all until the eve of the trial. I do not accept that such a horrendous, disgusting episode that caused the children to flee was forgotten in the enormity of her helping her best friend get out of the house. It was supposed to be one of the very reasons they went to the police.
36While I am not prepared to rely on events in which K.C. is the sole historian, I am also not prepared to accept the suggestion that K.C. was motivated to lie because of K.D.'s threat to speak to K.C.'s mother about K.C.'s queries of a sexual nature. There is no obligation or onus to establish a motive to fabricate, but I am not satisfied that the conversation that K.D. testified to, denied by K.C., happened, let alone provides a foundation for any motive to fabricate. When the suggestion was put to K.C. in cross-examination, she did not know what counsel was talking about and when it was made more specific, was adamant that nothing like that took place. While in other areas K.C.'s credibility suffered, on this point, it did not.
37K.D. and S.C. did not like each other and their relationship was non-existent. The relationship between K.C. and K.D. was anything but. They were Facebook "friends" and the messages from K.C. to "momma bonez" speak to their closeness. She was like another daughter and K.C.'s conversations with K.D. do not hint of any fear of her but just the opposite.
Evidence of M.D.
38M.D. was the only one of K.D.'s children to testify. She was 13 years old when she provided a video-recorded statement to police and had just turned 14 when she testified. Her December 23, 2016 statement was admitted pursuant to s.715.1 of the Criminal Code. In it, she detailed that by the second week of moving back with her mother and M.M. after having been in foster care, she was being hit, grabbed by her hair and arm, her face smacked and smashed off the ground, and one week prior to speaking to the police, was slapped across the head with a pot so hard that the handle broke.
39The last incident was precipitated by her failure to clean a pot that she had used for candle wax. She said that her mother smacked her across the back of her head with a big stainless steel pot with such force that the handle broke off. Then, because she had forgotten to make her brothers sandwiches, her mother grabbed her by her hair, hit her head off the ground causing a small bump, and then dragged her back to the counter. By the time she went to school 30 minutes later, M.D. testified that the bump had disappeared but she told her principal what happened nonetheless. M.D. also testified how both M.M. and K.D. told her that if she ever told anybody what was happening at home they would "kill [her]".
40On December 23, 2016, the day she went to police, M.D. said that that morning she had to change and feed her sister, and clean the kitchen and her mother's room. When they didn't finish cleaning her mother's room, K.D. smacked both her and her brother. The assault on December 23rd took place in the living room. According to M.D., her mother "always sits on her butt" so M.D. had to kneel for her mother to grab her by her hair and drag her. M.D. testified that she told her mother that she didn't want to clean and wanted to be with K.C. K.D. told her that she could go to K.C.'s house for the day if she cleaned her room. She testified that right after she was slapped, K.C. took a photograph of her. They went upstairs to clean her parent's room and found pornographic videos and sex toys which disgusted her.
41They hatched a plan to pretend to take out the garbage, but instead leave. She told police that they ran to Johnson's beach where a friend met them and they made a fort. They then went to Neighbours to warm up and stayed there for about 2 hours before grabbing boxes to take back to the fort to sleep there for the night. When they realized that was not a good option, M.D. suggested the bus terminal. That was when K.C. remembered that there was a police station there.
42M.D. described home life for J.D. as "really bad". About a week before going to police, she gave evidence that when J.D. came home from school, K.D. yelled at him for his behaviour. When he said he was sorry, K.D. told him she would show him "sorry". She smacked him in the face, kicked him in the mouth and made him go flying, and made his mouth bleed. M.D. watched as her mother then grabbed J.D. by his hair and hit his head off the table. He was made to stand in the corner and if he turned around she would smack him and make his head hit the wall.
43On December 22nd, M.D. testified that when she was in the kitchen and K.D. was in the dining room, she saw K.D. punch J.D. on his cheek and cause a mark on his face. M.D. had J.D. go downstairs to where K.C. was and K.C. took a photograph of J.D.'s face and arm where K.D. had grabbed him.
44M.D. testified that M.M. also hit her. He would smack her once in a while on the back of her head. Two days before going to police, she testified that he did that because she had not been cleaning the dishes. K.C. was not there that time. She also described times that her mother would tell M.M. to smack her but he would pretend to instead. She testified that M.M. also smacked G.D. on his stomach she felt to point out him being overweight and last did that two weeks earlier. As well, she testified that M.M. would also smack J.D. Her recollection of the incident with the Febreze bottle from two weeks earlier was that because J.D. broke the bottle, M.M. threw the bottle at him.
45During the trial, M.D. expressed that she loved her mother but was scared of her. She admitted during cross-examination that her mother had been injured in a car accident around Christmas 2015 and it had worsened in November and December of 2016 to the point that she was not able to move without assistance and spent most of her time on the living room couch.
46With her mother's back injury, she admitted that she, along with the other children, had to help more with the cleaning. Not surprisingly, that was something that she did not like doing, did not like chores, did not like cleaning her room and would, and could, leave her own room messy for days if not weeks. While prone to exaggeration, M.D. testified that she would come home from school and start cleaning with no breaks to be able to hang out with friends. That was clearly not completely true. With some justification, M.D. felt further put upon by having to care for N.D., but knew she had medical issues and complications from birth and accepted that that too was a factor in the household. She also knew that the Children's Aid Society would show up to the house without warning to check on things and the worker would speak with M.D. privately.
47I do not accept that M.D. and K.C. were motivated to make up these allegations to get M.D. to live with K.C. where the house rules were more lax. It was clear that M.D. loves her mother. I also do not accept that the allegations were payback for not being allowed to go to an "all ages" club. It is questionable why after having made this plan or even during the course of the abuse at the house, that M.D. did not contact any of the people that she knew loved and cared for her: Her father, who she had been having contact with against her mother's wishes, her grandparents on both sides, S.'s mother or even K.C.'s mother, but there are many reasons a victim, especially a child victim, will not disclose what is happening to him or her.
48When asked specifically about M.M., M.D. maintained that he would hit her in the back of her head with an open hand. She could not recall if anyone else was present or had any specific recollection of the event or details apart from while doing the dishes or cleaning the counters. When she testified about M.M.'s interactions with J.D. or G.D., her evidence suffered from the same inability to provide much detail of where it happened or how or what caused it to happen. Candidly, if the vast majority of the abuse was at the hands of her mother, it might not be surprising that details of relatively "minor" amounts of abuse by M.M. in comparison would not be at the forefront of her memory.
Evidence of K.D.
49K.D. testified in her own defence. She denied that she threatened or assaulted any of her children and testified that she never saw M.M. assault or threaten any of them. She provided the court with a description of family life leading up to November and December 2016. She had four of her children residing with her and a fifth, B.D., would sometimes also be at the house. Her youngest, N.D., born […], 2016, had a number of significant medical issues at birth that required a 5 week stay at hospital including Sick Kids' Hospital in Toronto. When K.D. brought N.D. home, K.D. said that N.D. slept in a basinet in her and M.M.'s bedroom.
50In December 2015, she and M.M. were in a car accident. She broke her ribs and injured her back and had to take treatment with a physiotherapist and chiropractor. There had been some recovery by the time N.D. was born but there were other setbacks. N.D.'s medical issues no doubt added to the stress in the house. In November of 2016, K.D. testified that she re-injured her back and had a slipped disc which, in turn, caused sciatica pain. Before the back issues, K.D. testified that the daily routine had her going downstairs to make breakfast and get M.M. off to work, and then get the children up and ready for ready for school. When her back issues recurred, the children had to bear more of the household responsibilities.
51It would also appear that whenever the re-injury of her back occurred, it was some time after or around Halloween given K.D. ability to attend a Halloween party and watch the Santa Claus parade. If she was as debilitated as the booking tape would seem to show, it is highly unlikely that she would have been able to endure either.
52In the week before December 23, 2016, K.D. testified that she had run out of medication. Her range of movement was close to non-existent and she had to rely upon M.M. or M.D. or K.C. to move around the house.
53It is clear that K.D. was overwhelmed with the physical and emotional challenges of dealing with her eldest and his behavioural issues along with a 13, 10 and 7 year old who each seemingly had a variety of issues to address. Add to that a newborn with significant medical issues to contend with, financial pressures, recurring back issues that stemmed from a car accident from a year before and an ill-thought out decision to house two dogs and then about six puppies no doubt added to the stress in the household.
54While there was an admitted bed bug infestation, I fail to see how that, or their handling of it, limited by their finances, can be connected to physical abuse. It would also appear that contrary to the picture initially presented by K.C. and M.D. of a mother who simply, in their words"sat on her butt or was lazy", she was clearly dealing with a difficult back issue. That injury also explains the household conditions evidenced through the photographs throughout the house although it does not address how M.M. could have allowed the house to be in such a state.
55K.D. expressed surprise at the photographs of the house and testified that it never looked like that. The photographs did not strike me as a momentary problem but would have occurred over days or weeks of not cleaning. Even when M.M. carried her upstairs she claimed that the house was not like that. I do not believe her. I also do not accept that the photograph of dinner (ex 7e – photo 17) is how dinner always looked and how they eat every day. The photograph was apparently taken the same day as the Santa Claus parade on November 19, 2016.
56Rightly so, the defence did not press the claim that K.D. was confined to the living room. She was able to move around albeit with varying degrees of difficulty. She would have been able to physically discipline or assault her children although whether she would have been able to do so in the manner sometimes described by M.D. and K.C. seems unlikely. She still had medical appointments to attend especially with a newborn and did so. While she characterized those as emergencies, there is no doubt that dealing with a newborn with "no medical issues" is difficult and requires constant movement, but coupled with the significant medical issues that N.D. had, and with her partner being at work to provide for the family, K.D. characterization of the extent of her lack of movement is hard to believe, and that it would coincide with the period during which the allegations stem, is doubtful.
57K.D. testified that the children all had age appropriate chores. If they had difficulties with doing them, her response was that she would be kind to them, provide words of encouragement, and not get frustrated with them also defies belief. If they did not do their chores, they were not punished, she testified, but there was discipline.
58On December 22nd, the day of the "J.D. photographs", K.D. testified that K.C. slept over and the children went tobogganing; providing an explanation for his reddish cheek. Dinner was uneventful. She denied ever striking K.C. or anyone else.
59Before moving on to my analysis of the charges before me, I wish to address the possible motives for the accusations that the defence have raised. It is trite to say that the defence has no obligation to provide a motive for arguably false allegations. K.D. did however, and raised that K.C. had approached and asked questions that suggested that she was engaged in sexual behaviour. Her relationship with K.C. was very close even though her relationship with S.C. was strained. K.D. essentially threatened K.C. that if she did not speak to her mother about her engaging in sexual relations, that she would. This was suggested as a possible motive for K.C.'s involvement in making false allegations against K.D. Even if this conversation did take place, which I am not convinced did, it doesn't explain why K.C. would have recorded "injuries" and the state of the house in advance of that conversation and "threat" having been made.
Analysis
Legal Framework for Assessing Credibility
60Whether the prosecution has proven guilt on any of the counts alleged beyond a reasonable doubt requires a critical assessment of the credibility and reliability of each witness in accordance with the analysis mandated by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. That assessment is not choosing who to belief. It is not a determination that either K.D. and/or M.M. committed the assaults or uttered the threats or they did not.
61K.D. testified. M.M. did not. The W.(D.) incantation is slightly different for each but the analysis and path for guilt to be established beyond a reasonable doubt is the same.
62Proof of guilt rests wholly on the prosecution and must be established beyond a reasonable doubt. There is no onus on the accused to prove anything. Reasonable doubt may exist even if I find a complainant or complainants credible. Similarly, even if an accused is disbelieved in part, parts of her testimony may be accepted and raise a reasonable doubt, or I may simply conclude that I do not know whether to believe the accused's testimony or, as in this case, exculpatory evidence where the accused does not testify. In such a case, an accused would be entitled to an acquittal (R. v. J.H.S., [2008] SCC 30 at para 11).
63The assessment of the evidence in a credibility contest is not a contest of whose evidence is preferred but an application of the principles in W.(D.) to the standard of proof beyond a reasonable doubt. While M.M. did not call evidence, the W.(D.) analysis may be engaged. As the Court of Appeal noted in R. v. B.D., 2011 ONCA 51 , [2011] O.J. No. 198 at para 113-114:
[I]n R. v. L.(T.), 2008 ONCA 763, this Court held that a W.(D.)-like instruction should have been given with respect to exculpatory defence evidence…
…[T]he principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings…
64Put more succinctly, the W.(D.) instruction, or its functional equivalent has application to other exculpatory evidence that emerges during trial proceedings (R. v. K.B., [2015] O.J. No. 2833 (C.A.) at para 31).
65If I believe the evidence of K.D. or evidence exculpating M.M., then I must acquit. Even if I do not believe K.D.'s evidence or the evidence exculpating M.M., each would still be entitled to an acquittal if the evidence leaves me with a reasonable doubt. Even if I am not left in doubt by the evidence of K.D. or the evidence exculpating M.M., the question is on the basis of the evidence I do accept whether the prosecution has convinced me of either of the accused's guilt on any charge beyond a reasonable doubt.
Assessment of Child Witnesses
66How to assess evidence of child witnesses was set out in R. v. B.(G.), [1990] S.C.J. No. 58 (S.C.C.) at para 48. Further guidance was provided by McLachlin J. as she then was in R. v. W.(R.), [1992] S.C.J. No. 56. Writing for the Court, McLachlin J. wrote:
23 …The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed… Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.
24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55…, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that
... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
26 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.
67Before dealing with each of the charges before the court, I wish to address some of the issues raised by both the prosecution and defence that, it is argued, are demonstrative of the truth or falsity of the allegations. These are by no means exhaustive. I have considered all the evidence and all the issues that were before me, but there are some which I wish to highlight to provide some insight into why I have come to the conclusions that I have.
Specific Issues in Evidence Assessment
68The prosecution asks me to consider the reaction of the children when they were at the police station at the bus terminal when M.M. came to the door. Their reaction, in the circumstances of this case, does not assist. Whether one or more of them screamed when M.M. showed up is not supportive of the truth of the allegations. The children could well have screamed because he, along with K.D., had abused them but that reaction could equally be because they made false allegations and did not want to face him.
69In the same vein, there is no significance to K.D.'s purported flat response to being shown the photograph of J.D.'s face with his red cheek and the accusation that she caused it when, it was argued, she would or should have reacted with outrage. Even if I agreed with that impression, the fact is there is no uniform way people respond to allegations whether true or false, and so to rely on this aspect of K.D.'s evidence in support of the allegations would be dangerous. The Court of Appeal warned against such an approach in R. v. F.(J.), [2003] O.J. No. 3241 by reference to the court's decision in R. v. Gostick, [1999] O.J. No. 2357 which counselled against an approach to the evidence which bases credibility decisions on demeanour (at para 90).
70Much was made of the circuitous and delayed route by which M.D., K.C. and J.D. made their way from K.D.'s residence at […] Drive, to S.'s house, to pizza and the Neighbour's store, Johnson's Beach, then No Frills and back to Johnson's Beach before finally making their way to the Barrie bus terminal and the police. Much like the delay or failure of the children disclosing the abuse and the opportunities they had to reach out to other family members or friends' parents or others and did not do so, there is no inviolable rule on how people who are the victims or witnesses to abuse and trauma will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. This is even more so when the ones being asked to disclose are adolescents and children. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, does not give rise to an adverse inference against the credibility of the complainant. (R. v. D.D., 2000 SCC 43 , [2000] S.C.J. No. 44 at para 65)
71That being said, there were numerous people in M.D.'s life who she knew loved her and who she could go to. When M.D. was no longer willing or able to tolerate the abuse and assaults at the hands of K.D. and M.M., and fled with J.D. and K.C., the plan was to flee and find a place of safety and refuge. K.C. had her phone with her. The plan included calling K.C.'s mother, S.C. They don't do that. They went to a friend's house, S., whose mother was a CAS worker. They say nothing to her. Instead, they made their way, after pizza and hanging out, to Johnson's Beach where they made a snow fort and "had fun" before seemingly running out of options, they went to the bus terminal and ultimately to the police who were stationed there.
72It was significant, that K.C.'s evidence throughout her statement to police on December 23, 2016 as well as her additional statement on the eve of her being called as a witness, and her evidence in examination in chief, expressed her fear of K.D. and explained her ongoing presence in M.D.'s life and in K.D.'s household as one borne out of a commitment to her best friend to help her escape from the life she was living. It is telling that the material put to K.C. during cross-examination revealed a close, loving and trusting relationship with K.D. It provided a revealing insight into her state of mind during the period in question but it also impacted on her credibility and the reliability of her claims.
73While M.D. may not have had access to a smartphone and may not have had as much, or as potentially unsupervised social media presence as K.C., the two were well aware and engaged with various social media platforms. K.C. in particular used Facebook and Instagram and other social media to document nearly all aspects of her life. The point is that despite being children from a legal standpoint, as teenagers they were well versed in capturing and documenting life events either by commentary or photographs.
74The plan from November 2016 was to document the living conditions and the abuse in K.D.'s household. To be able to provide proof to the police of what was going on so it was not simply their words. There were numerous photographs of the messy state of various rooms in the house, but no photographs of the more horrific of K.C.'s allegations such as the dog feces or the maggots. There was a photograph of a single fly. I do not accept that if she was taking photographs from November 10, 2016 to get proof to take to the police, that she would not have taken such photographs if such conditions actually existed. Similarly, the failure to take any photographs following assaultive episodes where marks or injuries resulted, coupled with repeatedly exaggerated testimony, leaves me with much to question about what to believe about K.C.'s evidence.
Specific Charges
Assault on G.D.
75Dealing now with the particular charges: K.D. and M.M. are charged with assaulting G.D. between November 1 and December 23, 2016. K.D. denied any assaultive behaviour. G.D. did not testify so I am left to rely on the evidence of K.C. and M.D. There were also no photographs of the aftermath of any of the assaultive conduct although that might be explained by the claim that G.D. was a "goody two-shoes" and would have likely reported what they were doing to his mother.
76The most detailed of the assaults upon G.D. were those on December 22, 2016 when he was hit on his bottom by K.D. because he wasn't cleaning up garbage and dog feces in the basement. If he wasn't cleaning, K.D. would smack G.D. across the face or bottom. M.M. was said to have smacked G.D. on his stomach to point out his weight and had last done that the first week of November. K.C. believed the Febreze bottle incident where M.M. threw the bottle was towards G.D., although M.D.'s evidence was that it was towards J.D. Regardless, forcing G.D. or any of the children to eat dog feces would most certainly make out an assault.
77A conviction on this count requires me to rely on the testimony of K.C. and M.D. The difficulty is that even though there is no necessity for corroborative evidence, given the relationship between the two girls, it is my view is that their evidence was prone, at times, to sweeping generalizations and hyperbole, and cross-examination produced a much more tempered picture such that the required proof to find guilt has not been met. My conclusion is that both defendants probably and even likely assaulted G.D., but that is not proof beyond a reasonable doubt, and accordingly both defendants will be found not guilty of the charge.
Uttering Threats to M.D.
78K.D. and M.M. are also charged with uttering a threat to cause death to M.D. during the period between November 1st and December 23, 2016. The threat was that she would be killed if she told anyone what was occurring at home. M.M. also apparently threatened to punch and kill the children. As previously set out, I have sufficient doubts about K.C. and M.D. credibility and reliability individually and collectively that I am not satisfied to the requisite degree to find guilt. That does not mean that it didn't happen, just that I am not sufficiently sure that it did.
Assault on M.D. with a Weapon (Pot)
79K.D. is charged alone with assaulting M.D. with a weapon, to wit a pot, on December 13, 2016. M.D.'s evidence was that her mother smacked her across the back of her head with a big stainless steel pot with such force that the handle broke off. She was then grabbed by her hair causing her head to strike the ground before being dragged back to the counter. This altercation caused a small bump that had apparently disappeared by the time M.D. went to school 30 minutes later. K.C. was not there to witness this incident but testified that she later saw the broken pot in the kitchen.
80While the defence pointed out that K.C. described the object first as a pan before revising it to a pot, I do not think the distinction or description is significant. What is more significant for me is that from the way the assault occurred that there was not a single mark on M.D. that resulted, or that upon seeing the broken pot or pan in the kitchen, that K.C., on her mission to document proof of assaults did not take a photograph of this broken pot. K.D. denied this event occurred. I am not satisfied beyond a reasonable doubt that it did and accordingly, that charge will be dismissed.
Assault on M.D. on December 23, 2016
81The last charge involving M.D. is that K.D. assaulted her on December 23, 2016. Unlike the other offences, in this case, there were photographs taken to document the results of the assaultive conduct. As the defence pointed out, the marks differ significantly on the printed photographs than when the actual photograph images are viewed on the disc. Even so, the actual jpeg images 50 through 55 taken from 1:22 p.m. to 1:28 p.m. on December 23, 2016 show red marks on M.D.'s arm, neck and cheek. That was what K.C. was attempting to document. The defence argued that M.D. was smiling in the photographs. M.D. denied that she was but opined that she was also embarrassed having these photographs taken. Whether she was or wasn't does smiling is not clear from the photographs, but regardless it does not change the fact that there are clearly marks on her.
82Although K.D. denied she assaulted her daughter, I did not find her denials to be credible. She was clearly under a great deal of stress from the myriad of things that were going on in her life. There was certainly a public display of affection towards her daughter which was genuine, but there was also a private life that was not on display or at least she did not think so. I do not find that K.D.'s evidence and her denial of any untoward conduct towards M.D. to be credible nor did it leave me in a state of reasonable doubt. Despite the issues with M.D. and K.C.'s credibility, on this count, there was confirmation. I accept their evidence and I find that the redness to M.D.'s face, arm, and neck was the result of an assault and I accept beyond a reasonable doubt that K.D. was the one who caused those marks by assaulting her daughter; accordingly, she will be found guilty of that count.
Assault on J.D. on December 22, 2016
83K.D. is also charged with assaulting J.D. on December 22, 2016. K.C. took photographs of J.D.'s red face after she said K.D. grabbed his arm and punched him with a closed fist after he failed to pick up a pop bottle. Those photographs show a red mark that covers almost the entire of J.D.'s right cheek extending above his eyebrow. He has marks on his arm and his upper chest that were documented. K.D. did not recall his face being like that and did not know how or what caused it. The defence suggested that the marks could have been caused by being out tobogganing in the cold. There is no burden on the defence to come up with any explanation. The prosecution always bears the burden of proof. K.D.'s testimony that she did not remember those marks, those injuries, on her son is not credible. I also not accept they were caused by tobogganing and being out the cold. That I don't accept K.D.'s evidence or find that it raises a reasonable doubt does not end the matter. It is the rest of the evidence I do accept that must satisfy me beyond a reasonable doubt. In this case, it is the testimony of K.C. and M.D., corroborated by the photographs taken, that I accept and find provide the prosecution with the proof J.D. was assaulted beyond a reasonable doubt. K.D. will be found guilty of the December 22, 2016 assault upon J.D.
Assault on K.C. on December 22, 2016
84The remaining count that K.D. is facing is that of an assault upon K.C. on December 22, 2016. To put it bluntly, I do not accept that any assault occurred. K.C. is the only one who makes such a claim. K.C. had testified to being assaulted by K.D. when she had not eaten a mushroom off her plate. She also testified that K.D. was violent towards her a second time initially saying that it happened at 10 o'clock on December 23, 2016 and then changed that to December 22, 2016 when K.D. grabbed her phone from her and then when it was grabbed back, K.D. hit K.C. on her head with her sandal. M.D. did not testify to either of these events happening when she would have certainly been a witness to one or both. Given my concerns with the credibility and reliability of K.C.'s recounting of events, I am not prepared to accept her word alone that such an incident or incidents happened; accordingly, K.D. will be found not guilty of that charge.
Assaults by M.M. on M.D. and J.D.
85That leaves the two charges of assault that M.M. is facing alone in relation to M.D. and J.D. Through much of the testimony, M.M. was an afterthought. The evidence presented something of a dichotomy. M.M. was alternatively someone who could be cruel and abusive as well as someone who could feign discipline or punishment to placate K.D.
86M.M. is alleged to have assaulted M.D. on December 21, 2016. For me to rely on the evidence of K.C. and M.D. to find guilt, there needed to be something more to overcome the frailties in their evidence. I have expressed throughout this judgment my concerns with K.C. and M.D.'s evidence. The case against M.M. is different from that involving K.D. Although he did not testify, I find that the prosecution case leaves me suspecting that M.M. did assault M.D. I would go so far as to say that he probably did, but the witnesses' evidence did not leave me with the confidence to find that it has been proven beyond a reasonable doubt.
87I come to the same result in relation to his assaulting J.D. between November 1, 2016 and December 23, 2016. I find that in relation to M.M., the evidence I have heard, considered in its totality, does not provide me with the confidence to say beyond a reasonable doubt that he assaulted J.D.
Conclusion
88In conclusion, K.D. and M.M. are not guilty of assaulting G.D., and uttering a threat to cause death to M.D. K.D. is found not guilty of assaulting M.D. with a weapon to wit, the pot and not guilty of assaulting K.C. K.D. will be found guilty of assaulting M.D. and guilty of assaulting J.D. M.M. is not guilty of assaulting M.D. and not guilty of assaulting J.D.
Released: December 6, 2017
Signed: "Justice J. Bliss"