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 486.4(1) of the Criminal Code. This subsection 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 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

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.

ONTARIO COURT OF JUSTICE

DATE: January 19, 2018

COURT FILE No.: Ottawa 16-RD19592

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

F.G.

Before: Justice P.K. Doody

Heard on: July 4, 5, 6, 7, 8, 11, 12, 2016; March 20, 21, 22, 23, 24, April 3, 4, 5, 6, 7, 10, 11, 12, 13, 18, 19, July 31, August 1, 2, 3, December 6, 2017

Reasons for Judgment released on: January 19, 2018

Counsel:

B. Lee-Shanok — counsel for the Crown

M. Edelson and A. Paciocco — counsel for the defendant

Table of Contents

• Part 1: Background and Issues
• Part 2: The Evidence directly relevant to the charges
• Part 3: Evidence on collateral issues
• Part 4: Analysis generally and in respect of collateral issues
• Part 5: Analysis of specific charges before the court

Part 1: Background and Issues

[1] The Charges

The defendant is charged with:

(a) Uttering a threat to cause death to the complainant on September 6, 2014;

(b) Assaulting the complainant on November 19, 2014;

(c) Wilfully destroying a remote control, the property of the complainant, on November 19, 2014;

(d) Assaulting the complainant on November 23, 2014;

(e) Assaulting the complainant on November 25, 2014;

(f) Surreptitiously making a video recording of the complainant while in her bedroom in circumstances that gave rise to a reasonable expectation of privacy between December 4, 2013 and December 31, 2014;

(g) Surreptitiously making a video recording of the complainant while in her family room in circumstances that gave rise to a reasonable expectation of privacy between December 4, 2013 and December 31, 2014;

(h) Without lawful authority and knowing that the complainant was harassed or recklessly as to whether she was harassed, engaging in besetting or watching her place of residence and causing her to fear for her personal safety between December 4, 2013 and December 31, 2014;

(i) Surreptitiously making a video recording of the complainant in circumstances that gave rise to a reasonable expectation of privacy between October 1, 2012 and November 30, 2012.

[2] Nature of the Charges

The charges described in subparagraphs (f), (g), and (i) allege voyeurism under s. 162 of the Criminal Code. The charge described in subparagraph (h) alleges an offence under s. 264(3) of the Criminal Code.

[3] Non-Publication Order

An order has been made under s. 486.4 of the Criminal Code prohibiting the publication, broadcast, or transmittal of any information that could identify the complainant or any witness. Consequently, I will not use their names and will identify each witness by his or her relationship to either the defendant or the complainant.

[4] The Parties and Their Children

The defendant and the complainant started dating in the summer of 2012. They moved in together in July 2013 and were married on July 12, 2014. They each have two children. The defendant has a son who was 14 years old in November 2014 and 17 when he testified at trial, and a daughter aged 11 in November 2014 and 13 at the time of her trial testimony. The complainant has a daughter aged 10 in November 2014 and 12 when she testified at trial, and a son aged 8 in November 2014 and 9 when he testified at trial.

[5] The Relationship

The complainant and the defendant have both testified that their relationship was tumultuous. The complainant testified that there had been some physical interaction between her and the defendant, starting a month or two before the marriage. She said that he would grab her wrists and face sometimes, but not in as extreme a fashion as after the marriage. She said that, before the marriage, things were getting "rockier and rockier" and he was becoming more moody, with more anger outbursts. She said that there were some "scary moments" before the marriage, and she had concerns "deep down" but that after these incidents he showed enough remorse that she believed things would get better. She did not suggest to him that they engage in counselling. She went ahead with the marriage.

[6] Credibility as Central Issue

All of the charges before the court turn on credibility.

[7] The Core Dispute

The complainant testified that the defendant threatened her in September 2014 and assaulted her and destroyed a remote control in 3 separate incidents in November 2014, culminating on November 25, 2014 when the defendant was arrested. The defendant denies doing so. He asserts that the complainant has made up these allegations in order to destroy him financially and personally. The issue with respect to these offences is whether the Crown has proven beyond a reasonable doubt that the defendant committed these offences.

[8] The Voyeurism Recordings — October 2012

The defendant acknowledges that he recorded him and the complainant engaged in sexual activity in the basement family room of his residence in October 2012. He has testified that that was done with the knowledge and consent of the complainant. The complainant has testified that she did not know of or consent to the video recording. The issue is whether the Crown has proven beyond a reasonable doubt that the complainant did not know that the recording was being made.

[9] The Surreptitious Recording Devices — December 2013

The defendant acknowledges that he set up surreptitious recording devices December 2013 in the master bedroom and the basement family room of the home in which he and the defendant lived since July 2013 (the matrimonial home). The recorder in the master bedroom was disguised as a DVD player. The recorder in the basement family room was disguised as a motion detector in an alarm system. The bedroom unit recorded the complainant undressing and dressing. The basement unit recorded the defendant and the complainant engaged in sexual activity.

[10] The Public Good Defence

The defendant admits that the complainant was unaware of these devices. He has testified that he did this in order to determine whether the complainant was assaulting her own children when he was away, and relies on the "public good" defence under s. 162(6) of the Criminal Code.

[11] Issues Raised by the Defence

The issues raised by the defence with respect to these recordings are:

(a) for both the recordings of the bedroom and the basement family room, whether the Crown has proven beyond a reasonable doubt that the defendant's purpose was not for a "public good" as that term is used in s. 162(6); and,

(b) additionally, for the recordings in the basement family room, whether:

(i) the Crown has proven beyond a reasonable doubt that the defendant had the necessary intent at the time the recording was made; and

(ii) whether the Crown has proven beyond a reasonable doubt that the basement family room was a place in which a person could reasonably be expected to be nude or engaged in explicit sexual activity.

[12] Collateral Evidence

There was much evidence led which related to collateral matters – either facts allegedly relevant to the credibility of the complainant or the defendant, or facts intended to illustrate the context of the events alleged as part of the charges, or to illustrate the narrative. I will first describe the direct evidence on each charge, and then the evidence on most of the collateral matters.

[13] Layout of the Matrimonial Home

It will be helpful in understanding the evidence to know the setup of the matrimonial home. It was a large two storey house with a finished basement. There were four bedrooms upstairs: the master bedroom, the defendant's son's bedroom, the complainant's son's bedroom, and a bedroom shared by each of their daughters. The boys' bedrooms each had an air vent in the wall between that bedroom and the master bedroom, which allowed sounds to be heard more easily between rooms. The master bedroom had an ensuite bathroom, which contained two sinks, a shower, and a separate room within it which contained the toilet – referred to as the "water closet".

[14] Layout Continued

The bedrooms opened onto an area on the second floor which included a railing at the edge overlooking the main floor. The stairway between the main floor and the second floor had a landing halfway up. The basement was finished with a tv room and a separate room used for a gym.

Part 2: The Evidence Directly Relevant to the Charges

(a) Count 1: Uttering a Threat to Cause Death — September 6, 2014

[15] The Complainant's Account

The complainant testified that in early September, 2014 she and the defendant were in the basement of the matrimonial home. They were standing up near the couch. The defendant got angry about something and began yelling and screaming. He grabbed her wrists and pushed her over the arm of the couch so she was bending backwards. He was holding her down by her wrists. She said she was terrified. She yelled "don't hurt me!"

[16] The Threat

She testified that the defendant "threatened to stab me and chop me up in a million pieces, and crush my kids, or something like this, and throw them – throw them on the street like puppy dogs." She said that she had recorded this in her diary (which will be described later in these reasons) and said that although she had a memory of the events, her memory of the specific words used would be refreshed if she were allowed to read it. After reading her diary silently, she testified that the defendant had said that he threatened to stab her, cut her up in a million pieces, and "rip [her] kids apart and throw them on the street like puppy dogs."

[17] Her Response

She said that the defendant told her she had ten minutes to get out of the house. She and the defendant were alone in the house at the time. She ran upstairs, grabbed a phone and hid behind a couch trying to determine what to do. She was afraid of what he would do if he came for her. She said the defendant continued to watch television in the basement and never did come looking for her.

[18] No Police Call

She did not call police. She did not leave the house, although she testified that her children were not home that evening. After a couple of hours passed, she cautiously went downstairs to see if it was safe and he was over his anger. He did nothing when she went downstairs and she stayed there with him.

[19] The Defendant's Denial

The defendant testified that he did not recall an argument that weekend. He denied that he had grabbed her by the wrists, threatened to stab or kill her, or to tear her kids up and throw them on the street like puppy dogs.

(b) Count 2: Assault — November 19, 2014

(i) Complainant's Evidence

[20] The Incident Begins

The complainant testified that on November 19, 2014 she and her husband were upstairs. The defendant's son "mouthed off" to her. The defendant came out of the bedroom and told his son that they had to have a talk. He went into his son's bedroom and closed the door. She said she was in her son's room with the door open. In cross-examination she said she was standing in the hall outside the bedroom doors or just inside her bedroom door. She testified that the defendant and his son were speaking in a normal tone of voice and she could easily hear them.

[21] The Interruption

The defendant was trying to reprimand his son, asking him why he acted that way. She testified that the defendant's son "immediately did what he typically does – start lying about it." She testified that the defendant's son said that the complainant regularly went in his room and yelled at him, a charge which the complainant denied in her testimony. She said that the defendant asked him to give an example and he could not do so, saying "there are just so many times I can't think of anything". She testified that she knew the defendant was "going to blow" because he often lost his temper when it came to his son. She feared that the defendant would come after her later. So she opened the door to the defendant's son's room. She testified that she felt she had to say something before it escalated. She said "he is lying to you I don't do that."

[22] Cross-Examination on the Interruption

It was put to the complainant in cross-examination that when she opened the door to the defendant's son's room on November 19th, interrupting the defendant's conversation with his son, she started screaming and yelling at his son, calling him names. She denied this. She also denied that the defendant then told her that they could not continue to live like this and went downstairs. She denied following him downstairs and hitting him in the face.

[23] The Defendant's Reaction

She testified that the defendant immediately "lost it". She said he was screaming and yelling "get out" at her. She ran to the basement because she did not want a huge scene in front of the children. She stayed in the basement for approximately two hours. In cross-examination, she admitted that she had not told the police in her initial statement that she had gone downstairs. She stated "It appeared as if I couldn't recall I did that at the time."

[24] Later That Evening

She testified that at about ten o'clock, hoping that her husband had calmed down, she went back upstairs and looked in their bedroom door. The defendant was lying in bed watching television with the lights out. She entered the room and got ready for bed. She said her husband immediately "went ballistic", yelling about his son. She told him to be quiet. She was concerned that her son would hear through the vent on the bedroom wall which allowed sound to flow into his room from theirs.

[25] The Remote Control

She said that he then took the remote control and threw it against the wall (about 20 feet away), shattering it into a number of pieces, spread out over the floor. This will be referred to again in the next section of these reasons.

[26] First Choking Incident

She said that he flipped her over in the bed, so that she was lying on her back, with the back of her head facing the television which was on the wall across from the foot of the bed. The defendant was sitting on top of her, with his knees straddled over her stomach. She was holding her hands against his chest trying to keep him off, but she was unable to do so. He placed his hands around her neck and squeezed. He then let go.

[27] Second Choking Incident

The complainant said she tried to act as if nothing had happened. However, the defendant was "still in a frenzy" and a short time later he flipped her over again, holding her wrists in a crossed position over her head with one hand while with the other he choked her, squeezing her neck and digging his thumb into the left side of her neck. She said that this went on much longer than the first time she had been choked, "for sure over a minute". She testified that she was very frightened and worried that he might kill her accidentally.

[28] Her Question

She asked him "are you going to kill me?" She testified that she said that because he was choking her. She could not speak clearly and the words came out as if she was hoarse. She spoke the words in court in a hoarse voice to show what she meant.

[29] The Aftermath

She said that the defendant did stop choking her. She testified that at no point had she lost consciousness. A minute or two later she tried to go back to bed. She said the defendant was still angry. He put his foot on her thigh and pushed her off the bed. He did this a few times. He then got out of bed and went downstairs to the kitchen. She followed him down, thinking that perhaps he was getting a knife. He was not. He cooked himself an egg.

[30] Cross-Examination on Credibility

Defence counsel aggressively cross-examined her, suggesting that it made no sense for her to get back into bed after she was choked the first time. She agreed.

[31] Omission from Police Statement

In cross-examination, the complainant admitted that she had not told police in her statement, or written in her diary, that she was worried that the defendant might be getting a knife when he went downstairs.

[32] Physical Effects

The complainant testified that, as a result of the choking, she was in a lot of pain for about ten days. She found it hard to swallow, and could only eat soft food.

[33] Her Son's Knowledge

The complainant testified that the next day, her son asked her if the defendant had had his hands around her throat because he had heard through the vent her asking the defendant "are you going to kill me?"

[34] Diary Entry

In cross-examination, she admitted that she had not written in her diary that her son had asked her this "the next day". She had, however, after describing the event over a page and a quarter in her diary, written: "[my son] heard everything. He asked me if [the defendant's] hands were around my throat and I had to lie and say no."

[35] Apology at Restaurant

The following week the defendant took the complainant to a Milestones restaurant. She usually had a particular salad when they ate there but she was unable to eat it because the vinegar hurt her throat. She said that she complained of this to the defendant and he apologized to her for choking her.

(ii) Evidence of the Complainant's Son

[36] Police Interview

The complainant's son was interviewed by the police on November 26, 2014, the day after the defendant was arrested. The recording of that interview was admitted into evidence under s. 715.1. He told police that the week before the statement he had been asleep in his bed when he was awakened by the defendant "saying bad words". He testified that he could hear from his bedroom what his mother and the defendant said to each other in their bedroom because of the vent on the wall which allowed air and sounds to flow from one room to another.

[37] His Statement

His s. 715.1 statement included the following:

Q. There was a fight? Okay. Tell me about that.

A. The … [defendant] was uh … last week it was maybe kind of worse so ...

Q. Oh yeah?

A. …so it's because he was not … not swearing uh … yesterday …

Q. Okay.

A. … uh … but last week he was … when mom was saying are you gonna kill me in a low voice like uh … choking voice or something …

Q. Umhum.

A. … and … but [the defendant] didn't uh … respond and when it was … like he was saying most … uh … not bad words but uh … in the morning I uh … I asked my mom if he put uh … his hands on my mom's neck and she said no and yesterday, like at night …

[38] His Testimony

He testified that he thought the defendant was choking his mother because she was "talking low" and saying "are you gonna kill me?" In cross-examination, he repeated those words in a very low, hoarse voice, explaining that that was the way his mother was speaking. He said that the defendant was yelling and swearing, and that his mother was swearing too, "just a little". He was really scared of the defendant so he stayed in his bed. He said that he wanted to save his mother but he was too frightened to do anything. The next morning, he asked his mother if the defendant had been choking her and she said "no".

[39] Prior Arguments

He said that he had heard his mother and the defendant arguing before, but not hitting each other. They were using "bad words they should not be using". He said his mother did not say much, "she only really yells at [the defendant] saying stop it."

[40] Timing Clarification

During cross-examination, the complainant's son became confused about whether the incident when his mother said "are you gonna kill me?" occurred the night the defendant was arrested (Nov. 25) or the week before, when he was in bed and could hear through the vent – or whether there were two choking incidents. This confusion gave rise to a halt in the cross-examination and a discussion between me and defence counsel as to the issue. I watched and listened to the witness very carefully when the timing issue was revisited after that exchange, and I have reviewed the transcript. I am satisfied that, while the witness was confused by the way the questions were put to him by both the police officer and defence counsel, he was referring to only one choking incident. His evidence, properly understood, was that that incident took place a week before the defendant was arrested, or on Nov. 19, 2014.

(iii) Evidence of the Defendant

[41] The Defendant's Account of the Dinner

The defendant testified that the family was eating dinner when the complainant "started on [his son's] case". He said that his son talked back to the complainant for the first time, not in a belligerent way, but saying that he was tired of her always picking on him. His son told the complainant that he knew that she did not like him or want him in the home. The defendant testified that the complainant told the defendant's son that he should not talk back to her and that he was always rude to her. She told him to go to his room.

[42] The Conversation with His Son

The defendant testified that the complainant then told him that he had to go to speak to his son and get him under control. He responded that she was always picking on him, calling him names and putting him down. The defendant testified that he then went upstairs into his son's room, and told him that if he had something to say he should talk to him. His son told him that he did not feel welcome in the house and did not want to come anymore. The defendant testified they were talking quietly. Suddenly, the door swung open and the complainant barged in, yelling "you are a fucking lying asshole" to his son. He testified that he looked at the complainant and told her to get out.

[43] Denial of Assault

The defendant denied holding the complainant or choking her on the bed. Nor, he said, did he repeatedly try to kick her off the bed. He denied that the complainant asked him if he was going to kill her.

[44] Timing Discrepancy

The defendant testified that this incident, which occurred the same day as an incident with the remote control later that evening, took place in October 2014, not November.

(iv) Evidence of the Defendant's Son

[45] Police Interview

The defendant's son told police, in an interview taken Nov. 27, 2014 which was admitted under s. 715.1, that he recalled his father being in his bedroom one evening when he was upset because the complainant had given her own children all of the meat at dinner. He said that the complainant opened the door and said "I never said that" and closed the door. He recalled his father getting upset with the complainant and saying "can you never mind your own business" but he did not know what else he said. He said that after this happened the complainant went downstairs and he did not hear them fighting again.

[46] Trial Testimony

In his evidence at trial, he testified about a similar incident when his father was talking to him privately in his bedroom and he told his father that he did not want to stay at the matrimonial home anymore because he was tired of the complainant calling him names and mistreating him. He said that he told his father that she had called him something like a "jerk-off" and the complainant then burst in the room, saying "I did not – he is just lying to you." He said his father said "leave, just leave" and the complainant left. He continued talking to his father for a while.

(c) Count 3: Wilful Damage to Remote Control — November 19, 2014

[47] Timing Confusion

The complainant testified in chief that on the day before she was choked (which would have been Nov. 18, since her evidence was that she was choked on Nov. 19) the defendant picked up the remote control and threw it against the wall across the room. Later in her examination in chief, she testified that this occurred on the same night she was choked. In cross-examination, she said that it happened about two hours after the incident in the defendant's son's bedroom on Nov. 19.

[48] Description of Damage

She testified that when the defendant threw the phone, it put a small dent in the wall and broke into a "million pieces". The pieces remained on the carpet for five days. On November 23, 2014 she saw a new remote in the bedroom and asked the defendant where it had come from. He replied "you ask too many questions." She denied that she had jumped on the defendant while he was lying in bed watching television.

[49] The Defendant's Account

The defendant denied any damage to the remote control. He testified that he and the complainant were arguing after she had interrupted him and his son while they were talking in his son's bedroom – in October, not November. He was lying in bed and she was sitting up in the bed facing him, with her legs straddling him, blocking his view of the television. He looked around her towards the television. He said she grabbed his face and turned it towards her, saying "look at me when I talk to you." He told her to get off him. She put her hand on his mouth. She continued to do this whenever he tried to talk. He said he picked up the remote from the bedside table and leaned to the left of the complainant, extending his arm to change the channel. He testified that she tried to grab the remote. He raised it over his head. As he was moving his arm away from her, she managed to get her hand on the remote control and pulled it away from him. It flew behind her back and landed on the carpet in front of the television. It did not hit the wall. The battery cover came off and the batteries came out. He testified that it was not damaged any further.

[50] No New Remote

The defendant testified that he never went out and got a new remote control.

[51] Threat to Leave

He also testified that during the argument, he threatened to leave the complainant and she responded by saying that she would ruin him and take him for everything he had.

(d) Count 4: Assault — November 23, 2014

(i) Complainant's Evidence

[52] The Argument About Groceries

The complainant testified that on Nov. 23, after the exchange with the defendant about the new remote control described above, she asked him where he had been. He told her he had been grocery shopping. The complainant testified that she knew he was lying because there were no groceries. The defendant then told her he had taken his children to Chapters to buy them books. She said to him "why did you not take all the kids, why are you hiding it?". She said he replied "because your kids are fucking idiots."

[53] The Shower Incident Begins

The complainant testified that she then took a shower. Shortly after, the defendant came back upstairs. He had been making dinner. He held a box of rice in his hand. He told her he could not read the instructions on the package. She said he passed the box of rice over the top of the glass shower door, in front of her face, and said "read this." The complainant said she responded "no, I am trying to take a shower. Get your kids to read it."

[54] The Assault in the Shower

She testified that the defendant then opened the shower door, put his hands in, and pushed her to her knees at least twice. He then took the shower caddy, a device which hangs from the shower head to store shampoo and other items, and threw it on her. He then left the bedroom. The complainant said she then left the shower and went to the bedroom door, locking it from the inside.

[55] The Threat to Kick Down the Door

She testified that a short time later, the defendant came back upstairs and stood outside the bedroom door, saying that the complainant had until the count of three to open the door or he was going to kick it down. The complainant testified that she believed him, and so opened the door. She said the defendant was "back on his rampage" yelling out threats to her, saying that he was going to put the house up for sale. She said that she "just laughed". She testified that the defendant then left, going back to cooking dinner.

[56] The Lock Mechanism

In cross-examination, the complainant agreed that the bedroom door could be opened from the outside while locked by inserting a small pin into a hole on the outside handle, so there would be no need for the defendant to knock the door down or threaten to knock it down.

[57] The Photograph

In cross-examination, defence counsel noted that the complainant had told the police that she should have taken a picture of the shower caddy items on the floor of the shower, suggesting that she had not done so. He said that if she had, it would be useful evidence.

[58] The Interview Transcript

She testified that she had taken a picture, that she had shown it to the officer conducting the recorded interview of her, and that the transcript indicated that she had done so. In fact, the interview includes the following exchange:

A. And then this is the shower that …

Q. it says …

A. … happened the other day.

Q. Yeah, that's …

A. I … I have a picture of the shower stall on the phone.

Q. Okay.

A. Uh. …

Q. What's that, that's the one that holds the shower …

A. No …

Q. … the shower curtain?

A. I'm in the shower and he comes in asking me about something and I was angry at him for something and I said just … you know, go away, whatever. I can't remember what it was and I'm having a shower and then he opens the door, pushes me into the wall, takes the shower caddy and throws it down on the …

Q. What's this shower caddy?

A. Uh … it's a thing that holds all the stuff but when you're in the shower and that's the time when I said I should have taken the picture. It's like I was in there and he threw it down on top of me.

[59] Production of the Photograph

After stating that such a picture would be useful evidence, defence counsel asked the complainant in cross-examination if she still had it on her phone. She said that she would look for it. That afternoon, she testified that she had located the photograph. It shows the bottom of a shower stall, covered in the shower caddy and products that would normally be in a caddy such as shampoo and conditioner. It was agreed between the parties that the metadata showed that the photograph was taken on November 23, 2014 at 6:07 p.m.

[60] No Photograph of Injuries

In further cross-examination, the complainant admitted that she had not taken a photo of her knees, although she testified that she could not recall if there had been marks on her knees.

(ii) Defendant's Evidence

[61] The Defendant's Denial

The defendant denied interrupting the complainant while she was taking a shower. Nor, he said, did he brandish a box of rice at her. He testified that he had been grocery shopping with his children that day. He was shown the picture of the floor of the shower caddy that the complainant had produced during cross-examination. He identified two of the objects on the floor of the shower as being his. He testified that he did not push the complainant down and said that the complainant "staged the whole thing". He denied even having an argument with the complainant on November 23.

[62] Credit Card Evidence

The defendant produced a credit card statement which showed that he had charged $22.94 at Loblaws and $127.60 at Costco that day. He testified that he had been buying groceries that day, contrary to the complainant's assertion that it was a lie. The account also showed a charge at Indigo (the corporate owner of Chapters) that day for $18.88.

[63] Cooking Ability

The defendant testified that he was a good cook and did most of the cooking in the family (as was confirmed by other witnesses) and he did not need to be told how to cook rice.

(e) Count 5 – Assault — November 25, 2014

(i) Evidence of Complainant

[64] The Coffee Incident

The complainant testified that she had a shower around 8 p.m. She came out of the shower and was drying her hair when the defendant, who had been out with his children, came into the bathroom. He had a vente Starbucks coffee in a paper cup (the largest size). He was agitated about something and threw the coffee at her while she was drying her hair. She said that the coffee went "everywhere" – all over the vanity, the sink, and "everything".

[65] The RESP Dispute

The complainant testified that the defendant asked her to explain a sum of $325 coming out of her bank account which was marked "investment". She explained that she had started RESPs for her children. She testified that she knew that he had invested about $80,000 for his children's education in RESPs and she had invested about $35,000. She testified that he then said "that is my money". She said that he was "furious".

[66] Pinned Against the Wall

He pushed her against the bathroom wall and pinned her against the wall. He held his arm across her throat. She testified that her throat was already in a lot of pain from the prior choking incident. She said she yelled "ow" or "stop" or something like that. She testified that the defendant continued to yell and scream at her, saying that it was his money and what did she think she was doing. He called her bad names. He repeatedly told her he wanted her and her children out of the house immediately. He said either that the house was up for sale or he would put it up for sale.

[67] Her Response

She responded by saying that he should calm down. She asked him if they could talk about this later. The defendant then ran out of the bathroom.

[68] Her Daughter's Reaction

While she was cleaning up the coffee, her daughter came in, saying that she had heard her mother say "ow" and "I know he did something what did he do?" The complainant responded that the defendant had just pushed her, and that he was mad at her about money she had put aside for her daughter's and son's education. Her daughter responded that she was tired of this.

[69] The Hair Dryer Threat

The complainant said that she then returned to drying her hair. The defendant came back to the bathroom and grabbed the hair dryer, pulling it out of the wall outlet. He grabbed the cord and said "I should strangle you with this". He then said "You are never going to get anything out of this house, not even the hair dryer".

[70] Threats to Sell the House

The complainant testified that he then told her that she had to get out of the house with her children, and that he was going to put the house up for sale and change the locks the next day. He then asked her if she was going to tell her children, or whether he should do so. She replied that she would not tell them that night, that they had school the next day.

[71] The Hair Dryer Thrown Outside

He then grabbed the hair dryer and ran down the stairs. She heard the patio door open and shut. Later, she learned that he had thrown the hair dryer out the door. She asked the police to retrieve it; when they did so, she saw that a piece of it had been broken off.

[72] No Scratches on Defendant

She denied grabbing the defendant by his neck or even touching his neck area. It was her evidence that there was no reason for him to have injuries or marks on his neck.

[73] Yelling at Her Son

She testified that after throwing the hair dryer outside, the defendant came back upstairs and stood at her son's door, yelling "get out get out get out with your mother get out now!" The complainant said that she was standing behind him, and could see that her son had a fearful look on his face. The defendant then went downstairs.

[74] Trying to Reason with Him

The complainant followed him there, and tried to reason with him. She said she had never seen the defendant behave this badly. She said it was "complete psycho behaviour – he was just in frenzy." She said she tried to reason with him, saying they could sell the house, and asking that he talk about this.

[75] His Threats About Finances

He refused to discuss anything. He said that he was going to freeze her out of the accounts and sell the house the next day. She responded that he could not do that and he replied that he could, with what he called a "forced sale", and that he would withdraw all his money from the joint accounts.

[76] The 911 Call

At about that time, she said, his son ran downstairs and told them that the complainant's daughter had called 911. This made the defendant even more upset and he told her she had better make this go away and "this better not happen".

[77] Attempting to Stop the Call

The complainant testified that she then went upstairs with the intention of stopping her daughter from speaking with the 911 operator. She said she did not want the police to come to the home that evening. She recalled that the defendant followed her up at some point, as did the defendant's son. She said she tried to get her daughter off the phone.

[78] Denial of Railing Statements

In cross-examination, she denied standing at the railing at the top of the stairs overlooking the ground floor, yelling at the defendant "don't hurt me why are you trying to kill me".

(ii) Evidence of the Defendant

[79] Arrival Home

The defendant testified that after dinner on Nov. 25, he took his children to a Chapters store. They stayed there 30 to 45 minutes. He said they then returned home. He had bought a coffee at Starbucks and brought it home with him. They arrived home before 8:00 p.m. He said that when they got home, the complainant and her children were there.

[80] Discovering the RESP Payments

He said he did some work in his home office for about a half hour. He noticed debits of $325.00 in each of October and November from a joint account he shared with the complainant. He testified that "I am the one who makes the movements from the accounts regardless of who it belongs to". He went upstairs to speak to the complainant to find out why she had made those payments.

[81] The Bathroom Conversation

He said the complainant was standing in front of the sink blow drying her hair and wearing a housecoat. He was a foot or two away from her. He asked her about the payments and she told him that she had set up a Registered Education Savings Plan for her daughter. He testified that he responded by saying that they had agreed several months before that they could not afford to do that, and that they would not make savings of any kind, including an RESP. She told him that it was her money, and none of his business. He responded by saying it was not her money, it was their money.

[82] The Coffee Incident — His Version

She told him to get out and returned to drying her hair. He reached out to turn off the blow dryer. She turned it into his face and told him she could not hear him. He reached out to unplug the dryer and she pushed him into the sink. His shoulder hit the mirror and the coffee in his hand dropped into the sink. He said some coffee splashed on the mirror but none of it splashed on her.

[83] The Struggle Over the Hair Dryer

He said he then took the blow dryer out of her hand, unplugged it, and began to wind the cord up. She shoved him, telling him to get out. She clawed him in the chest and scratched him on the neck while he was holding the blow dryer up against his chest. She grabbed the hair dryer from him and he grabbed it back. She stood between him and the door and swatted him several times on the back of the head.

[84] His Threats

He told her that he was through and he was going to contact a realtor the next day and put the home up for sale. He told her to pack her things and leave the house that night. She screamed at him that they were not leaving.

[85] Throwing the Hair Dryer

He managed to get out of the bedroom and went downstairs, taking the blow dryer with him. After a few minutes the complainant came downstairs and tried to get the blow dryer from him. He said he tossed it out the patio door into the backyard, telling her if she wanted it so much to go get it. His son then came downstairs and told them that the complainant's daughter was on the phone with the police.

[86] Upstairs Again

He testified that the complainant went upstairs to her son's room while he remained on the ground floor with his two children. He said he then went upstairs, followed by his children. He said that he stood at the complainant's son's door. The complainant and her two children were in her son's bedroom. The complainant's daughter was on the telephone. The defendant said he asked what was going on and the complainant told him that he had hurt her and her daughter was afraid.

[87] His Reaction to the Police Call

He testified that when he heard this he thought that "the optics are not good" for him. He went back downstairs, followed by his children. He denied ever telling the complainant's daughter that she had to "get out of the house, now".

[88] The Railing Statements — His Version

He testified that moments later, the complainant came to a railing on the second floor which overlooked the room on the main floor where he was gathered with his children. The complainant's children were in their room and could not see them. He said she looked down at them and said that he was going to leave her and was trying to kick them out. She then started yelling "don't hurt me, don't hurt me he is trying to kill me".

[89] The 911 Operator Call

Immediately after that, the phone rang. He answered the call. It was the 911 operator. She told him that the police were on their way. He said the complainant was right next to him on the couch on the main floor and she started repeating what she had said at the railing – "don't hurt me, don't hurt me". He said that when she said this his children were right with him and he had not laid one finger on her the entire night.

[90] His Children's Reaction

His two children were in tears and kept asking her why she was saying this. He described his children as "hysterical". He said he inadvertently hit the "end" button on the phone. The phone then rang twice and was picked up by someone upstairs. He asked the complainant, in what he described as a "passionate, loud" voice "why are you doing this?" He said the complainant was 3 feet away from him and the only people downstairs were him, his children, and the complainant. The phone rang again. He did not answer it.

[91] The Performance

Moments later, it rang again. The complainant answered the phone. She spoke to the operator and handed the defendant the phone. The operator could hear the complainant speaking and asked the defendant to hand her back the phone. He said the complainant did not want to take it. But he testified that when she did, "she starts up a whole performance to make it look like I am battering her."

[92] Waiting for Police

He said he then walked to the stairs leading to the basement and his children followed. He said he waited there with them until the police arrived.

[93] Complete Denial

He denied all of the complainant's allegations about having assaulted her that evening. He said "I did not lay a finger on her."

[94] The Scratches

The defendant testified that the complainant scratched him while he was arguing with her in the ensuite bathroom about her putting money into an RESP for her children. Photographs were taken of him by the police the day after he was arrested. They show two light red scratches about 1 to 1 ½ inches in length and about ¼ to 3/8 of an inch apart about 4 inches below and slightly behind the defendant's left ear, at approximately the location of a shirt collar. The photos also show a darker and somewhat wider scratch about 1 ½ inches long about an inch below and an inch forward of the bottom of the other two scratches, just above the defendant's collarbone. The complainant denied scratching the defendant, although she did testify that while he was pinning her against the wall her hands were on his chest trying to push him away. She said that she saw no injuries on him that night.

(iii) 911 Calls

[95] The Five Calls

There were five 911 calls to or from the matrimonial home Nov. 25, 2014. The first call was made by the complainant's daughter at 8:41 p.m. It ended something less than 6 minutes later. The complainant was the last person to talk. The second call was made by the 911 operator at 8:49:08 p.m. It was answered by the defendant. It was very brief. The third call was made by the 911 operator at 8:50:50 p.m. It was answered by the complainant's son. The complainant's daughter and the defendant each speak very briefly and the complainant's daughter is the last one to speak. The call is less than three minutes long. The fourth call was made at 8:55:15 and no one speaks. The fifth call was made by the 911 operator. The complainant answered the call. She and the defendant both speak on the call and the call lasts for 19 minutes 50 seconds. For the last several minutes, nobody is speaking.

[96] Tone of Voice

The tone of voice of the complainant on the recording indicates that she was not happy with the 911 call being made or the police being called. She and the defendant can be heard yelling at each other in the background from time to time.

[97] Use of the Recordings

The calls were introduced without objection. They consist of prior statements by the complainant, the defendant, and the other persons talking on them. They were not introduced, and cannot be used, for the truth of the statements made by the persons whose voices are recorded. Nor do they bolster the evidence of a witness who, at trial, testifies to the same thing he or she said on the recording. They are useful for timing; to indicate what people knew or were told and when; to provide evidence of the emotional state of the persons recorded; to indicate who was within earshot of the phone if their voice can be identified; to prove or provide corroborative evidence of what was or was not said if that is relevant; and, if appropriate, to rebut an allegation that trial evidence by a person who testified to the same thing he or she said on the recording was fabricated at some point after the time of the recording.

(iv) Evidence of Complainant's Daughter

[98] What She Heard

The complainant's daughter testified that she had heard noises "like a pounding on the wall" along with screaming. She could not make out what was being said. She told the police officer in an interview entered into evidence under s. 715.1 that she heard her mom scream and she (the daughter) ran straight into the bedroom shared by the defendant and her mother.

[99] Why She Called 911

She said that she called 911 on Nov. 25 because she thought her mother got hurt because the defendant "pushed her a little like he umm grabbed her". When asked, she said that she had not seen the defendant grab her mother, but her mother told her that he had.

[100] The Defendant Leaves

She testified that she went to the master bedroom. The defendant came out of the room as she was walking down the hall. He went downstairs.

[101] Finding Her Mother

She went into the bathroom and saw her mother kneeling on a mat, just below the sink used by her mother, cleaning up coffee.

[102] Marks on Her Mother

She said that her mother had coffee marks on her forearm, and that it looked "like a little bit of skin came off" but "she wiped it away and it was a little mark I don't know." Later, in cross-examination, she agreed with defence counsel's assertion that she had not seen coffee on her mother. He did not put to her the contradiction with her earlier evidence.

[103] Confusion During Cross-Examination

By this point in the cross-examination defence counsel had been cross-examining this 13 year old girl for more than a day about events some 20 months earlier. He had put to her questions about the same events a number of times. I was watching her closely. In my view, she was completely confused by the time this question was put to her. I am not satisfied that I can take anything from this particular evidence.

[104] Refreshing Memory

In any event, in re-examination she was asked to refresh her memory by looking at the same portion of the transcript of the 715.1 examination that defence counsel had directed her to during cross-examination. She testified that she was unsure, both at the time of testifying and when she gave her 715.1 statement, whether the mark on her mother's forearm was coffee or a scratch.

[105] Conversation with Her Brother

After speaking with her, her mother asked her to go in her brother's room. She did so. Her brother was in bed, reading a book. She said she was alone with him for ten minutes, telling him about what had happened.

[106] The Hair Dryer and Threats

The defendant then came back upstairs, took her mother's hair dryer, and threatened her and her mother. The defendant then came into her brother's room (where both the complainant's children were) and said "you guys are gonna pack up your stuff right now and leave this house". She said that the defendant then ran downstairs.

[107] Hearing Yelling

She recalled that she heard yelling from the main floor, although she could not recall if it was more than one voice yelling. She went downstairs to get a phone after the yelling had gone on for 5 to 10 minutes. She saw her mother and the defendant on the main floor. She could recall the defendant saying something but she could not remember what. The defendant was at the door with the hair dryer in his hand. Her mother was with him. She was the only child on that floor. She saw no physical contact between her mother and the defendant. She got the phone and ran upstairs to her brother's room. She denied that her mother gave her the phone or that her mother asked her to call 911. She went into her brother's room and closed the door.

[108] Why She Called 911

She told the police officer in the s. 715.1 interview that she called 911 on Nov. 25 because she thought her mother got hurt because the defendant "pushed her a little like he umm grabbed her", because he "swears a lot" and she "doesn't feel safe with him". She also said that she called 911 because he had threatened "us" by saying, 2 or 3 times, that they had to get out of the house. She said that when the defendant realized that she had called 911 he "started being calm". When asked, she said that she had not seen the defendant grab the complainant, but her mother told her that he had.

[109] Defence Counsel's Suggestion

Defence counsel put to the complainant's daughter that the reason she called 911 was because of the defendant's threat that she and her brother and mother would be kicked out of the house. She agreed that that was the reason. She agreed that she was afraid of that happening, and that she just wanted the police to stop the arguing. She said she did not want anyone to be kicked out of the house, but she just wanted the arguing to stop.

[110] The Defendant's Children at the Door

She testified that while she was on the phone speaking to the 911 operator the defendant's son and daughter opened the door to her brother's room. The defendant's son stood at the doorway. He asked her if she called 911. She said yes.

[111] Hearing the Defendant's Son

She then testified that the male voice who can be heard asking "what are you guys doing" on the 911 call she had made was the defendant's son. She testified that immediately thereafter, her mother came in the room. The complainant's daughter concluded that the defendant came upstairs with her mother, because she heard his son speaking with him.

[112] No Screaming at the Railing

She testified that she did not hear her mother screaming at the defendant from the railing at the top of the stairs "stop hurting me you" or "you are trying to kill me".

(v) Evidence of Complainant's Son

[113] Police Interview

The complainant's son told the police officer in an interview entered into evidence under s. 715.1 that he heard the defendant and his mother arguing. The defendant was saying things like "get out of this house, it's our house, you're gonna be leaving right now, pack your stuff and go" and saying "really bad words, he was hurting my mom badly". He said the defendant was "really mean to my mom", and saying "lots of the f word". He said that he stayed in his room for the whole time.

[114] Cross-Examination

In cross-examination, however, he testified that he left his room after he heard the defendant yelling and swearing. His mother was not yelling. It was his evidence that she spoke in what he called a "natural voice", at a regular volume. He heard the defendant leave the master bedroom. He went into the bathroom and saw his mother there with his sister. His mother was cleaning coffee, which he saw in the sink. He did not recall seeing coffee anywhere else.

[115] Returning to His Room

He was there less than two minutes and returned to his room. He heard his mother leave the bedroom some minutes later and heard her go down the stairs. He then heard more yelling and swearing from the main floor. He tried to fall asleep, but did not do so. After about ten to fifteen minutes, something else happened but he could not recall exactly what. He tried harder to get to sleep. He was still unsuccessful.

[116] The Threat at His Door

Sometime later, he heard the defendant come back upstairs. He thought he heard him go into the master bedroom. He heard his mother come up later. He testified that the defendant was in the doorway to his room, and his mother was in his room at the other side of the doorway. His mother stood with her hands across the doorway, holding onto the doorframe. The defendant threatened to kick him, his sister and his mother out of the house.

[117] Cross-Examination on Details

In cross-examination, he denied that his mother was swearing. He also denied that the defendant told his mother "stop lying and tell them the truth."

[118] The 911 Call

In examination in chief at the trial, he was asked about the 911 call. He identified his voice. He could not recall what phone he answered it on, but said he was in his room when the phone rang. He explained that when he said to the 911 operator that his mother was getting hurt, he meant hurt emotionally, not physically. He said that his sister and his mother were both in his room at some point while he was talking to the 911 operator.

[119] His Reasoning

He heard his mother saying "stop it". He thought that that meant she was being hurt, so he told the 911 operator "She's being hit". He confirmed he never saw her being hit. He also said that he answered "yes" to the operator's question "is he hitting her" because "I was guessing and if I said no that would mean no it is high chance he is not actually hitting and I said yes because there was a high chance of him hitting her."

[120] Re-Examination

He explained in re-examination that he had told the 911 operator that his mother was being hit because he heard his mother saying "stop it" and he heard "thumping like going toward her".

(vi) Evidence of Defendant's Daughter

[121] Her Police Statement

The defendant's daughter testified. She was 13 at the time of her testimony and 11 at the time of the video statement she gave to the police after the defendant's arrest. In that statement, admitted under s. 715.1, she gave the following answers to questions:

A. I don't remember how it started …

Q. Yeah.

A. … but they were yelling at each other.

Q. Where were they?

A. Uh … I think … wait, they were in their room …

Q. Okay.

A. … and then they went downstairs.

Q. Okay.

A. And then I don't know why but [the complainant's daughter] called the police.

Q. Umhum…

A. … cause [the complainant] was saying stop hitting me but my dad was not hitting her. Like I saw he was standing somewhere and then she was standing at another place and she was saying stop following me, you're gonna kill me. He was not touching her at all.

Q. Okay.

A. Not a bit.

Q. Okay. So when uh … did you hear [the complainant] stop touching me?

A. Yeah but he wasn't touching … I saw … I saw it too …

Q. Okay.

A. … he wasn't touching her.

Q. But they were arguing before.

A. Yeah.

Q. … in their bedroom?

A. Yeah.

Q. And you guys weren't allowed to go in the bedroom?

A. Uh … no but he did say, how could I touch you, I'm on the bed and my brother heard that and he … I don't know, but he heard it and I don't think my dad would ever do …

Q. No.

A. That.

[122] Trial Testimony

In her evidence at trial, the defendant's daughter testified that on the night her father was arrested, she heard her father and the complainant yelling at each other in the master bedroom. She said they were arguing about money. She said she and the complainant's daughter were in the room they shared when she heard this. The complainant's daughter got up, saying "that is it" and stormed out of the room.

[123] Hearing About the Police Call

She heard her brother say that the complainant's daughter had called the police. The defendant's daughter then left the bedroom. She saw the complainant's daughter and son in the complainant's son's room. The complainant's daughter was talking on the phone. She ran downstairs, where the complainant and her father were arguing. Her brother was there with them.

[124] Everyone at the Door

Her brother said that the complainant's daughter had called the police and the complainant said "she did what?" and ran upstairs. Her brother and father followed. Everyone was at the door to the complainant's son's room.

[125] The Railing Statements

She testified that the complainant talked to the police and her father for a bit and then she, her brother, and her father went downstairs. At one point the complainant came to the railing overlooking the ground floor and began to yell at her father to stop touching her and to get away from her, saying that he was trying to kill her. At that point, her father was nowhere near the complainant. She testified in cross-examination that the complainant's son and daughter would have been able to see and hear her mother doing this from her son's bedroom where they were at the time.

[126] Acknowledging Uncertainty

The defendant's daughter testified that she did not know what had happened between her father and the complainant in the master bedroom that night. She agreed it was possible her father had gotten angry and she did not see it. She agreed that it was possible that the defendant had hit her mother.

(vii) Evidence of Defendant's Son

[127] Police Interview

The defendant's son was 17 when he testified at trial. He was 14 when he was interviewed by police on Nov. 27, 2014, two days after his father was arrested. The transcript of that interview was admitted under s. 715.1. He was asked what had happened the night his father was arrested. He gave the following answers:

A. Well, my dad came up and then said how do you spend so much money on stuff and then … I'm not sure that's the exact words but I know it was about money. She's spending money.

Q. Yeah, where are they at this time?

A. Uh … well she was in her room and my dad came up …

Q. Okay.

A. … cause he was on the computer.

Q. Yeah.

A. … and h's like I just looked at our bill and you spent, like I'm not sure how much money, but you spend a lot of money and stuff and then she's like, no I didn't. Like he … and he's like I have the receipt right here and then she takes her blow dryer and she's like okay, I can't hear you and she's blow drying. My dad took the blow dryer. I don't know what happened. ..

Q. Umhum.

A. … but I … she's like give me back the blow dryer and then they … she … they left the room and then they went to the … downstairs and they were fighting and then that's all I know about it.

Q. Okay. So you saw your dad go upstairs with a paper or something saying he had seen a bill and why she's spending money?

A. Well like cause my door was closed but I heard him come up the stairs.

Q. Yeah.

A. … he's like … he … I heard the door open and why are you spending so much and then …

Q. The door closed?

A. … and then the door closed and then …

Q. And then they were in the washroom?

A. Yeah.

Q. so you didn't really hear what they said?

A. Well I heard the blow dryer like.

Q. Okay.

A. I can't … I can't hear, I can't hear you and then I heard her yell, say give me back the blow dryer …

Q. Umhum.

A. … and then like it's mine, I paid for it and then I just … I don't remember what happened after.

Q. Okay.

A. They went downstairs and I …

Q. Do you hear her saying give me back my … my blow dryer?

A. Yeah.

Q. You heard her say that?

A. I heard her say that.

Q. Do you … you heard that through the bathroom, through your room, in your room?

A. Well like I don't think it was in the bathroom necessarily cause there's like a walkway here …

Q. Umhum.

A. … and the bathroom turns in there and I think my dad was there.

Q. Okay.

A. Like he's in the … you could hear them yell even if they're in the bathroom but say like they're talking …

Q. Yeah.

A. … I can't hear them in the bathroom.

Q. But they were yelling?

A. They're yelling.

Q. Super loud?

A. Everybody can hear them like even in …

Q. Okay.

A. … my sister's room.

[128] Further Police Statement

The defendant's son also told police, in the s. 715.1 interview, that

Well my dad was downstairs with us and every time the police called, she [the complainant] would start yelling and saying you're trying to kill me, stop following me and then when my dad would hang up, she'd … she's like I'm done with this so she'd say … and then go to her room. She'd be yelling from the balcony upstairs, I wrote it down too … and then uh … my dad was downstairs with us … and he's like, guys, don't worry, it's okay and the police would call again.

[129] Trial Testimony

At trial, the defendant's son testified that he was in his bedroom when he saw his father come upstairs and go into the master bedroom. He said he was lying in his bed. The door was open. He said he could hear what was being said in the master bedroom because there was an air vent in the wall between the two rooms. He said he heard his father, after he entered the bedroom but before he closed the door, ask the complainant "you spent how much?". He said the door closed behind his father and he could hear a blow dryer noise and his father saying "how could you spend this much money?" He heard the complainant respond "It doesn't concern you" and his father saying "It does concern me it is my money".

[130] Continued Testimony

He then heard the blow dryer and the complainant saying "I can't hear you" over and over. He said something then happened which he could not hear. He then heard his father saying "I am leaving I am leaving", the complainant responding "Leave leave" and his father saying "I am trying to but I can't if you don't get off me." He then heard his father say "that is it I am leaving." The complainant then said "No I am not leaving."

[131] Downstairs Activity

He testified that he then saw his father leave the bedroom and go downstairs. A short time later he saw the complainant leaving the bedroom, open her son's bedroom door, say something, and throw something in the room. She then went downstairs and started arguing with his father. This went on for 15 to 20 minutes. He heard his father say "I want you guys gone – I am done with you guys – I am selling the house."

[132] The Police Call

The defendant's son said he then went to the railing overlooking the main floor and could see his father, but not the complainant. They were arguing. He heard the complainant's son and daughter in the complainant's son's room, talking. He went to the door and heard that they were speaking to the police. He went downstairs and told his father and the complainant that the complainant's daughter had just called the police. He said the complainant then went upstairs and he stayed with his father downstairs. He said he did not go back upstairs until his father was arrested.

[133] The Railing Statements

He testified that he recalled his father picking up the phone and talking to the police. At that time, the complainant was at the railing overlooking the room, yelling "leave me alone he is trying to kill me".

(f) Count 6 – Voyeurism in the Bedroom

[134] Discovery of the DVD Player

The complainant testified that after the defendant was arrested on Nov. 25, 2014, he was not allowed to come back to the home as part of his bail conditions. The complainant and the defendant had agreed, through their lawyers, that a friend of the defendant would come to the house to pick up some of his possessions. When the friend came to pick up the items, he told the complainant that the defendant also wanted the DVD player which he described as sitting on top of the other DVD player in the bedroom entertainment unit. The complainant thought this was odd, but the defendant's friend was insistent. The complainant got the DVD player and gave it to her husband's friend.

[135] The List of Items

The complainant testified that sometime later, about a week before Christmas 2014, the defendant's friend contacted the complainant, giving her a list of things that the defendant wanted from the house. Most of the things on the list were camera or electronic equipment, including a "GoPro" camera. She asked her husband's friend why the defendant wanted a GoPro camera. He did not have an answer other than that the defendant had said he wanted cameras to use at Christmas. The complainant felt that she should download the pictures on the GoPro camera.

[136] Discovery of the Videos

She took the SD card out of the camera which was used for family pictures and downloaded it on her laptop. Among the pictures was a video of the defendant setting up what appeared to be a "spy camera" system in their bedroom. It was date stamped shortly after they had moved in together. The card also showed the complainant walking into the bedroom the next morning, and included pictures of the complainant sleeping in the bedroom during the night. She concluded that he was spying on her, and that he could cause a device to take pictures in the bedroom remotely.

[137] Timing of Discovery

The complainant testified in cross-examination that she saw these images sometime after Dec. 20, 2014 and close to Christmas Day. She recalled that when her mother visited her on Dec. 26, she knew about the pictures she found.

[138] The Secureshot Manual

The complainant found a document called a "Secureshot DVD player location guide" in a filing cabinet. It shows a picture of what looks like a Samsung DVD player. The photograph includes indication of "camera location", "aim secure-shot remote control at front of unit", a slot to put the SD card in, and the "secureshot video out jack". The second page of the document showed a remote control unit which includes "record" and "play" buttons. The complainant testified that she had given a Samsung DVD player, the same model shown in the photograph on the first page, to the defendant's friend in December 2014.

[139] The Videos

Videos were played in court. They were black and white, and showed the master bedroom in the family home. They were of low to medium quality – none of the things in the video were in sharp focus.

[140] First Video — Setup

One video, bearing the time/date stamp of 2013/12/04 19:31:50, shows the defendant kneeling down and manipulating something with his hands in the manner one would adjust a control on an electronic device. Behind him can be seen the bed and chair in the bedroom. The defendant can be seen walking over to the bed, picking up a remote control, and aiming it at what must be the camera recording the scene. He then came back to the vicinity of the camera with the "covert DVR" which the complainant found in the basement TV room in the family home and is described later in these reasons. He is seen manipulating the device and then kneeling in front of the camera while manipulating the device in the area where it has buttons for "record/stop" "play and pause" and fast forward and reverse. He took what appears to be a manual and lay it on the carpet in front of him while looking up (as if at a screen) while continuing to manipulate the controls. The manual appears to be the size of the "Covert DVR" manual found by the complainant. The video appears to be captured by a camera mounted in the bedroom's entertainment system.

[141] Second Video — Complainant Undressing

The next video is dated 2014/05/12 08:09:35. It shows the same scene as was shown in the first video – the master bedroom in the family home as if seen from a camera mounted in the entertainment unit in the bedroom. It shows the complainant walking into the bedroom from the direction of the bathroom, which is opposite the foot of the bed. She is seen taking off her robe and her top. She is naked from the waist up. Later, she walks off the scene and re-enters, removing her pants under which she was not wearing panties, and putting on panties.

[142] Complainant's Lack of Knowledge

The complainant testified that she did not know that these videos were being taken.

[143] The Defendant's Explanation

The complainant testified that he had set up in the bedroom the same Samsung DVD player with a recording device which he had used to record the images of him and the complainant engaged in sexual activity in 2012, as explained later in these reasons in the section dealing with the evidence on count 9, voyeurism in 2012. He testified that the complainant had been shown the Samsung DVD player and its ability to record video, and had consented to its use in 2012. He said he set it up on December 3, 2013 and the recording played in court shows him doing that.

[144] His Stated Purpose

He testified that he set it up because he was concerned about the complainant assaulting her daughter. He said this concern arose because of the assaults by the complainant on her daughter which he had seen at the Long John Silver restaurant in the summer of 2013 and in the kitchen of the matrimonial home which had resulted in C.A.S. involvement, together with what he had been told by his daughter following a business trip he had taken. During such trips, the defendant's children stayed with their mother and the complainant's children lived with her at the matrimonial home.

[145] What He Was Told

The defendant testified that in late August of 2013 he travelled to Chicago on business. He testified that in October, his son asked him if he knew that the complainant's son had, while he was away, urinated in the bed he shared with his wife. He said that his son told him that the complainant's son had told him that his mother, the complainant, had gotten very upset and had been mean to him. The defendant said that he then asked his daughter what she knew about it. His daughter told him that the complainant's daughter had told her that on one occasion, she got upset when her brother picked a movie for the family to watch that she was not interested in and she thought her mother was favouring her brother. The defendant said that his daughter told him that the complainant then slapped her and sent her to her room for the remainder of the night.

[146] His Confrontation

The defendant testified that he confronted the complainant the same day his daughter told him these things, and the complainant admitted that her son had urinated in their bed and that he did sleep with her sometimes when the defendant was away. She denied assaulting her children. He said he did not believe her denial and this "weighed on his mind".

[147] His Daughter's Evidence

The defendant's daughter testified that the complainant's daughter had told her that one night when she and her brother were alone with the complainant, the complainant had let them sleep in her bed to watch a movie, but the complainant's daughter did not want to watch it. She complained and her mother kicked her and told her to go to her room. The defendant's daughter testified that she told her father what she had been told by the complainant's daughter.

[148] The Day of Installation

The defendant testified that the day he installed the Samsung in the bedroom, the complainant had admitted to him that she sometimes let her children join her in bed while he was away, and told him that she was upset because her mother would contact her children while they were visiting at her ex-husband's house.

[149] His Stated Concern

He testified that he was concerned that she would stop allowing her children to visit her ex-husband while the defendant was out of town, and that she had admitted to letting them sleep in her bed. He said, "I felt I had to protect them and set this up so if she let them sleep in my bed I would have some documented proof."

[150] What He Saw

He testified that he only turned on the Samsung when he was out of town. He said that his fear was that "there would be other incidents of her battering her kids". On his return, he viewed the footage. He said he saw no incidents of the complainant assaulting the children on the videos.

[151] No Cross-Examination on Alleged Assaults

Defence counsel did not ask either of the complainant's children about the alleged assault on her son by the complainant in the master bedroom. Nor did he ask the complainant about that alleged assault, the alleged discussion about her mother contacting her children while they were visiting her ex-husband, or about the children sleeping in her bed when the defendant was away.

(g) Count 7: Voyeurism in the Family Room of Matrimonial Home

[152] Discovery of the Motion Detector Camera

The complainant also discovered a pamphlet for what looked like a motion detector in an alarm system, but is really a camera. Shortly after, she found a card in a camera hidden in a fake motion sensor in the basement family room. The complainant testified that before discovering the pamphlet she had thought that it was a real motion detector, installed as part of a home security system in the house.

[153] Turning Over to Police

She turned both that card, and the card found in the camera which had the video from the master bedroom, over to the police on January 6, 2015.

[154] The Video Quality

A video was played which had the time stamp of 09/22/2014. It is very poor quality and grainy. The picture quality is very low because no bright lights are on in the room. The camera is clearly some distance from the people depicted on the video, who occupy no more than roughly one sixth of the screen at any given time. The largest item in the screen is a table lamp, which occupies about one quarter of the screen and is between the camera and the couch. It shows the defendant getting up off a couch.

[155] The Sexual Activity

The complainant is then seen walking into the room. They are seen hugging, lying on the couch, and engaging in sexual activity. The complainant identified the room as the TV room in the basement of the family home. She testified that the video was on the card found in the fake motion detector on the wall of the TV room.

[156] Complainant's Lack of Knowledge

The complainant testified that she did not know that she was being filmed while having sex with the defendant.

[157] The Defendant's Setup

The defendant testified that he had set up the covert video recorder, designed to look like a motion detector in a security system. He said it was set up to record whenever motion was detected in its field of view. It was focused on the couch.

[158] His Stated Purpose

He had done so at the same time as he set up the Samsung DVD unit in the master bedroom, for the same reason – concern about the complainant assaulting her children while he was away. He testified that he reviewed the video card in the basement recorder from time to time, but that he started "getting lax" because it was very time consuming to have to go through all the clips. He said that if there was an issue of concern, or he heard something from the children, he would review it.

[159] The Sexual Activity Recording

He testified that it was never his intention to record sexual activity – just what was going on in his absence. It was his evidence that after a while, he forgot the camera was there. Furthermore, he said that the complainant had initiated sex on the occasion shown on the card from the basement device, and it "just happened". In cross-examination, he testified that they "did not have sex downstairs very often".

(h) Count 8: Criminal Harassment — December 4, 2013 to December 31, 2014

[160] Evidence Relied Upon

The evidence relied on by the Crown for this count is the same as for the voyeurism charges in Counts 6 and 7. In addition, the Crown relies on the evidence of the complainant that after she discovered the videos taken in her bedroom showing her getting dressed, and in the basement showing her engaged in sexual activity with the defendant, she felt horrified and distraught. She also testified that she felt scarred emotionally, vulnerable, and humiliated by discovering what her husband had been recording and sought therapy to deal with these issues.

(i) Count 9: Voyeurism — October 1, 2012 to November 30, 2012

[161] Discovery of the Memory Card

The complainant testified that when she was cleaning the family home on July 1, 2015 before the closing of its sale, she found a memory card in the back corner of a closet where the defendant had put a safe he had used, to which the complainant did not have access. She looked at the images on the video card and saw herself. The images showed the house in which the defendant had lived prior to his moving with the complainant to the matrimonial home in July 2013.

[162] The Content

The complainant testified that the images were of what she called the "couch area" where she and the defendant would watch movies. The perspective of the images was from the television, looking towards the couch. She testified that the images included them watching movies and having sex. She testified that she did not know that a camera was filming them at the time.

[163] The Video

A video was played in court. The images were very dark and grainy. The camera appeared to have been mounted quite low. It was aimed at a couch, the cushions of which were higher than the camera. There was a wooden coffee table in front of the couch which blocked the view. It shows the complainant and the defendant having sexual relations, but it is very difficult to see them for most of the time because of the low light, low quality of the video, and placement of the camera so low and at such a distance from the couch that only approximately one twelfth of the screen is taken up with the couple.

[164] The Defendant's Claim

The defendant testified that he had recorded this sexual activity with the complainant with her consent. He said it was recorded on the same Samsung DVD player which the complainant had given to his friend in December 2014 and which had been used to record images in the master bedroom of the matrimonial home.

[165] His Account of Consent

He testified that on September 21, 2012, he had asked the complainant if she would be interested in recording the two of them having sex. About a week later, on the weekend of Sept. 28, he raised the subject again when they were both in his home. He said the defendant was very enthusiastic. Before getting her consent, he explained and showed her in some detail how the device worked.

[166] The Recording

He testified that on October 27, 2012, he asked her if she would like to make a sex video. She said yes. They went downstairs into the basement family room where the Samsung player was set up with the television, across from the couch. He repeated the question and she again said yes. They engaged in sexual activity and it was recorded. He said that he and the complainant watched the video on either November 10 or November 11.

Part 3: Evidence on Collateral Issues

[167] Collateral Evidence

The Crown led evidence from the complainant and her two children of the defendant's "anger issues", the state of the relationship between the parties, and of the defendant assaulting or threatening the complainant, or otherwise acting inappropriately, which were not the basis of the charges before me. No objection to this evidence was taken by the defence.

[168] Admissibility

This evidence was admissible (so long as its probative value was not outweighed by its prejudicial effect) to allow me to understand the relationship between the parties and the context in which the alleged abuse occurred. It was also admissible for the purpose of demonstrating the motive or animus of the defendant to commit the alleged offences. It was not admissible for the purpose of demonstrating that the defendant was the type of person who would be disposed to commit the offences with which he is charged. (R. v. D.S.F., 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.))

[169] Defence Response

When the Crown chooses to lead this type of evidence, fairness requires that the defence be entitled to meet it by leading evidence to rebut it or suggesting that the context of the alleged actions of the defendant was in fact bad behaviour by the complainant, not the defendant. The defendant led a great deal of such evidence, from the defendant himself, his children, his sister, his brother, and his friend. The defendant testified that the complainant had a short temper, mistreated her own children and his son, was "mean and vindictive", and threatened to ruin the defendant. No objection was taken to most of this evidence.

[170] Relevance to Motive and Defence

Much of this evidence was also relevant to a potential motive for the complainant to lie and to the "public good" defence under s. 162(6) relied upon by the defendant in response to the voyeurism charges.

[171] Collateral Fact Rule

It was also relevant to the credibility of the complainant, where the complainant denied facts asserted by defence witnesses. The collateral fact rule, which prohibits calling evidence solely to contradict a witness on a collateral fact, is not absolute. Evidence that undermines a witness' credibility may escape the exclusionary reach of the collateral fact rule if credibility is central to the case against an accused. (R. v. C.F., 2017 ONCA 480 at paras. 48-50)

[172] Credibility as Central Issue

The alleged incredibility of the complainant was the foundation of the defendant's submission that all of the complainant's allegations of abuse were part of an intricate plot devised by the complainant to destroy the defendant. Indeed, 60 pages of the 158 page written argument filed by the defence dealt with the complainant's credibility generally – under such titles as "The Real [complainant's name]: The Woman Behind the Mask", "Ms. [complainant's name], the Bully of [name of street on which the matrimonial home was located]", "[Complainant's name] covering her tracks with the C.A.S.", "[complainant's name] picking on [defendant's son]", "We all know [defendant's son] Lies", "[complainant's name] Isolating and Alienating [the defendant] From His Family", and "Motive Manifested: [the complainant's] Mission to Destroy [the defendant]".

[173] Types of Collateral Evidence

There was another type of collateral evidence which was closer to the facts underlying the charges. Both the Crown and the defence led evidence which, it was submitted, undermined or enhanced the complainant's or defendant's credibility on their specific evidence on the elements of the offences charged.

[174] Organization of Evidence

The result was a significant amount of time taken up at trial to deal with these allegations, made by the complainant, her children, the defendant, his children, his siblings, and his friend. I have categorized all of this evidence as "collateral" because it is not directly material to the elements of any of the counts before the court. Factual conclusions in respect of the collateral issues could, however, be of assistance to my determination of whether the Crown has established beyond a reasonable doubt each of the elements of the offences set out in the information. I summarize in the next part of this judgment evidence in respect of most, but not all, of the collateral issues raised in evidence before me. Any collateral issues to which I do not refer are, in my view, too tangential to be of any real assistance or are supported by evidence which is so inherently fragile that no purpose would be served by setting it out.

(a) Communication Between the Complainant and the Defendant After the Defendant's Arrest

[175] Initial Question

The complainant was asked in cross-examination whether she had communicated with her husband after he had been arrested. She knew that the court had ordered him to not communicate with her after he was released on bail.

[176] Her Response

When asked if she had communicated with him, she testified that they had communicated "a couple of times". When asked specific questions, she said that they had not communicated by email or texts, but that they had spoken on the phone.

[177] First Call

She testified that the first time she called the defendant after his arrest she had been drinking and was very drunk, upset and distraught. She had no idea of the date. She admitted texting the defendant's friend, asking him to convey a message to him that she missed him badly.

[178] Defendant's Call

She testified that the defendant had called her once when the children were in the room so she hung up the phone.

[179] Reconciliation Discussion

She also said, at the beginning of the cross-examination on this issue, that they had spoken another time when she told him that if he would just apologize and show remorse she was sure he would be treated leniently. She said that she had told him that he would have to get help and go to "some sort of abuse course" but if he just showed remorse he would get help and "it would all be okay". She testified that she thought that this could be a wake-up call for him if he would just admit it and get help.

[180] Request to Recant

She also testified that he asked her to recant what she had told the police, and that she replied that she could not do that because it was true and the diary backed her up. She said that she was not sure when this conversation took place but thought that it might have been sometime in December. She also testified that this was the only conversation she had had with the defendant about any prospect of reconciliation.

[181] Texts to Defendant's Friend

On December 1 and 2, the complainant texted the defendant's friend, asking him first to call her, then to get hold of the defendant, then to tell him she had a letter for him to give the defendant.

[182] Defendant's Account of December 2 Call

The defendant testified that the complainant called him on Dec. 2. His phone identified the caller as "unknown". He answered it and, when he heard it was the complainant, he told her never to call him again. When he continued to get phone calls, he said, he turned his phone off.

[183] Texts About Money

The same day, Dec. 2, the complainant texted the defendant's friend, writing "Did you talk to him about the accounts? He just closed one of the joint accounts and stole 1000 out of my account where my cheque goes in." Moments later, she texted the complainant's friend again, saying "I'm growing angry at this constant leaving my account in deficit. I don't think he wants to reconcile. I will have to tell the crown and I don't want to help someone who is doing this. How am I going to pay bills?"

[184] Her Explanation

She admitted that when she sent this, she was growing angry with the defendant. She said that she had thought that he was going to reconcile, and this gave her some hope. When he took the money out of her account, she thought it was aggressive and retaliatory. When asked what she was going to tell the Crown, she testified that if they were going to reconcile, he would have to get help. If he was sincere in that, she would ask for leniency. She had not been prepared to ask for leniency if he did take steps to seek help. She testified that the victim witness program workers had told her that she needed to tell Crown counsel what she wanted.

[185] Meeting at Starbucks

The complainant testified that the same day, December 2, 2014, she saw the defendant at a Starbuck's. She sat down with him. He told her that he could not talk to her and left in his car. The complainant denied initiating any personal meetings thereafter. The defendant confirmed this meeting on December 2, and confirmed that the complainant had told him that she wanted to talk to him and he had refused, leaving in his car.

[186] December 4 Text

On December 4, 2014 at 7:50 a.m. the complainant texted the defendant's friend, writing:

Here are some key messages for [the defendant] to take corrective action. 1. Please remind [the defendant] to reply to lawyer today. 2. As a more clear sign of his intent to reconcile, I would want the 22,000 taken from the line of credit and my account to be returned to the LOC ASAP before I meet with the crown as I will only make my position clear to them once. 3. He needs to take care of his share of the mortgage by tying the $729 mortgage to his personal account or I will be forced to inform Scotiabank of the potential situation of a default. As a Scotiabank employee they may pursue him for payment as a first recourse. I don't feel that financing the mortgage from a joint line of credit is an appropriate way to pay the obligations.

[187] Her Explanation

This text was presented to the complainant in cross-examination. She testified that when she wrote this text, she was trying to determine whether he wished to reconcile. She was willing to be supportive with Crown counsel if he seriously wanted to reconcile. If he returned the $22,000 she said he had taken from her line of credit and account, that would be a sign that he was serious about reconciling. Defence counsel put to her that she, not the defendant, had removed $22,000 from their joint account. She replied that, on her mother's advice, she had moved some funds out of the account while the defendant was in jail immediately after being arrested. She testified, however, that the defendant had removed funds as well. She testified that her lawyer had written to the defendant's lawyer asking for repayment of that amount.

[188] Bank Documents

The complainant was then shown bank documents which indicated that on November 25, 2014 (the date of the defendant's arrest) $22,000 was removed from an account held jointly between her and the defendant. The complainant agreed that she had made those transactions, but was adamant that the defendant had removed funds after being released on bail. She said that if she could refresh her memory by reading the letters, she could be more accurate on this point. She had brought the correspondence related to her family law proceedings to court. She located two letters and read them silently while on the witness stand. After referring to the letters, she testified that she could not recall all the transactions, but her position at the time was that after taking account of all the transactions the defendant owed her $21,078.31.

[189] December 5 or 6 Call

The defendant testified that the complainant called him again on December 5 or 6, from a payphone. He said he told her that he had told her not to call him again. When he continued to get phone calls, he said, he turned his phone off. She told him she was going to "make it right". He asked her if she was going to tell the truth and stop lying. He testified that she said she was not going to do that because she would get into trouble and "they will say I am a crazy person". The defendant said that when he heard this, he hung up. Unlike later calls, he did not record this call.

[190] December 8 Call

The defendant testified that the complainant called him again on December 8, 2017. He was in his car when his Blackberry rang, indicating an "unknown caller". He answered and pressed a button to record the call. He said that due to a technical issue, the call was not recorded, although he did not learn this until later. He testified that she immediately said "don't hang up, I am trying to help." He replied by asking "are you going to tell the truth?" He said that she responded by saying, in a dismissive way, "I already told you I can't." He said that she told him she was going to meet with the Crown attorney's office but she needed to know if there was any chance of them getting back together. He responded that there was.

[191] Surreptitious Recording

The defendant surreptitiously recorded some subsequent telephone calls between him and the complainant. The complainant was unaware that these calls were being recorded.

[192] December 12 Call

The first such call was December 12, 2014 at 7:15 p.m. The defendant immediately remonstrated the complainant for calling him, saying that she was putting him in jeopardy of being sent to jail. The complainant said that she wanted to 'make sure that we're clear on everything" and asked if he had told his lawyer that she was going to meet with the Crown on the following Monday morning (which would be December 15). He told her that his lawyer had said it was extremely unlikely that the Crown would drop all charges. She said:

She told me listen she told me that you could plead guilty to a criminal charge but they could make it that say you don't have a permanent record. You have maybe a temporary record for a year or something like that but you could make an arrangement that it goes away like and that you take treatment and you do everything that the Crown tells you. She said there are ways because they see this all the time with men on these assault charges that they can get off they show remorse they plead they want to keep the family together. So you have to say you want to keep the family together and you want to keep married to me because we just got married and all this stuff and you're devastated and you're remorseful and you need treatment and you'll never do it again and all this kind of shit and they can make you not have a criminal record. She said there are very creative ways the Crown goes about not giving criminal records because they don't want to destroy people's relationships that's what she told me.

[193] Her Question

The complainant then asked the defendant "so doesn't that give you hope and me hope?" The defendant told the complainant that he still loved her and that he hoped that there was a future for them. She told him that she may call him after her meeting with the Crown "because we have to strategize" and she may have to tell him "you should call the Crown and say let's make a deal now". She said that they needed to talk "so we get our story straight".

[194] Meeting with Crown

The complainant testified that she met with an assistant Crown attorney and a civilian police employee on December 15 to discuss the process for dealing with domestic assault prosecutions. She was told about a counselling program which defendants charged with domestic assault can take to improve their behaviour and affect their sentence. At that meeting, she said that if the defendant "took the trial route" the relationship would be over. She recalled speaking to the assistant Crown attorney about the possibility of having the defendant's bail conditions varied so that she could speak with him over the holidays.

[195] December 15 Call

The second telephone call from the complainant recorded by the defendant was on December 15, 2014 at 3:15 p.m. The complainant called the defendant. She attempted to convince him to plead guilty to some of the charges, start a domestic violence counselling program, and hopefully avoid a criminal record. She urged the defendant to see his lawyer and have him negotiate that resolution with the Crown. She told him that she wanted to save their marriage and that she had told the Crown counsel that the defendant was a good person.

[196] Her Motivation

In cross-examination, the complainant testified that she made the call because she wanted to save her marriage and, at that time, wanted to reconcile with the defendant if he would admit his guilt and get help.

[197] No Recantation Request

The defendant did not, in that conversation, repeat his request that the complainant recant.

[198] No Further Conversations

After the recording of the December 15 conversation was played, the complainant testified that she did not recall having any further conversations with him.

[199] December 20 Call

Defence counsel then produced a third recording, of a telephone conversation from the complainant to the defendant on December 20, 2014. It was 27 minutes and 25 seconds long. The defendant began the conversation by telling the complainant that he was not allowed to talk to her. Throughout the conversation, the complainant told the defendant how much she loved him, missed him, and wanted to be with him. The defendant told her that he loved her and wanted to be with her but he was not allowed to communicate with her and he could be put in jail if he did. The complainant responded "I understand that but for mine and your sake fuck the lawyers and everyone who wants to keep us apart."

[200] The List of Items

The complainant also told the defendant that his friend had sent her a long list of things that he wanted, and asked him why he wanted them.

[201] Timing of Video Discovery

At that time, the defendant was facing 5 charges – uttering a death threat, 3 counts of assault, and wilful damage to the remote control. The charges of voyeurism had not yet been laid. The complainant's evidence was that she found the recordings about a week before Christmas, some time after the defendant's friend had sent a list of more things that the defendant wanted from the home. In other words, if the complainant is testifying accurately, she had not yet discovered the videos when she was so forcefully telling the defendant she wanted to reconcile.

[202] His Worst Nightmare

At one point in the conversation, the complainant asked the defendant why he was trying to end the conversation - "Why do you keep rushing off". He responded that it was because he was not allowed to talk to her, and said "you know my worst nightmare is to be hauled off to prison while I'm sitting with somebody with a client with a friend with a family member and then have to deal with that whole ordeal again because of something that I didn't do." The complainant responded "that's never going to happen."

(b) Complainant Allegedly Hitting Her Son Because of Bed Wetting

[203] Defendant's Daughter's Evidence

The defendant's daughter testified that the complainant's son would often urinate in his bed and that this caused the complainant to get "really mad at him". She said that this usually happened in the morning when they were getting ready for school and the complainant learned that her son had wet his bed the night before. She testified that the complainant would "slap him [her son] on the back of his head a lot". She said that she did this every time he wet his bed, which would happen most nights. She testified that the complainant's son would always cry when he was hit. She said that this happened in the hallway, where she could see it. She denied ever telling her father about this.

[204] Defendant's Son's Evidence

The defendant's son testified that the complainant would ask her son every night, after he had gone to bed, if he had gone to the washroom. If he said he had not, as he frequently did, the complainant would get mad and tell her son that he was a moron and hit him in the back of the head and on his forehead in the front of his head with her hand, both open and closed. He said he saw this a number of times. In cross-examination, he increased his estimate of the frequency of this occurrence to 40 % of the nights he was in the home.

[205] Defendant's Evidence

The defendant also testified that he had seen the complainant "swat her son in the head and tell him to go to the bathroom" if he told her he had not done so before going to bed.

[206] Complainant's Daughter's Evidence

The complainant's daughter testified that the complainant would frequently tell her brother to go to the washroom before going to bed because he sometimes urinated in his sleep. She denied, however, that her mother ever "smacked him" or yelled at him for not going to the washroom before bed.

[207] Complainant's Son's Denial

In cross-examination, the complainant's son denied that his mother ever hit him as a result of his having an accident in bed at night.

[208] Complainant's Evidence

The complainant testified that her son sometimes had a problem with wetting the bed. She agreed that she told him to go the bathroom before bed. When defence counsel suggested to her that she hit her son because of his bedwetting, she denied it, saying that she would put his sheets in the wash and he would come in to her bed and sleep with her.

(c) Complainant Allegedly Hitting Her Son in the Kitchen for Not Doing Homework Fast Enough

[209] Defendant's Daughter's Evidence

The defendant's daughter also testified that on one occasion, the complainant's son was doing his homework in the kitchen. Her brother was sitting at the kitchen table. The complainant's son was watching videos about dinosaurs. The complainant left the room. When she came back her son was still watching the same video, although his homework had been to watch a number of videos. The defendant's daughter testified that the complainant got mad at her son and hit him on the back of his head.

[210] Defendant's Son's Evidence

The defendant's son gave similar evidence, adding that the complainant called her son a moron before hitting him, knocking him off his stool, and then demanding that the defendant's son supervise him as her son completed his homework.

[211] No Cross-Examination

The complainant was not asked about this incident. The complainant's son was asked if his mother had ever hit him, and he denied that she had. That question was about the issues he had with bed wetting, not about doing homework.

(d) Defendant Allegedly Being Told About the Complainant Hitting Her Son

[212] Defendant's Son's Evidence

The defendant's son testified that he told his father about the complainant's violent attacks on her children – hitting her son "repeatedly" when he did not go to the washroom before bed; the incident in the kitchen when she hit her son for watching the dinosaur video too many times and not completing his homework; the time the complainant threw her daughter down the stairs before the Girl Guide meeting; the time when the complainant's children slept in the master bedroom when he was away, her son wet the bed, the complainant hit him, and the complainant's son told him (although both the defendant and his daughter testified that it was his daughter, not his son, who told him about that incident); and the time that she threw her daughter into the booth in the restaurant. He testified that he told his father the complainant hit her children almost daily, in the kitchen and all the rooms of the house.

(e) The Complainant's Alleged Temper

[213] Defendant's Evidence

The defendant testified that in March 2014 the family went to Mt. Tremblant on a ski vacation. He said that the complainant pushed her son into the snow at the bottom of one hill and started screaming at him in front of the other skiers because she felt he was not listening to her.

[214] Complainant's Daughter's Evidence

The complainant's daughter testified in cross-examination that before her mother struck her (as described later in these reasons), she and her mother had been having arguments in which both yelled and swore back and forth at each other, both losing their tempers. She testified that she (the complainant's daughter) often had temper tantrums, as frequently as twice a month. She was taking counselling before the incident in which her mother struck her, which she described as being "for me and my mom to get along". She saw the counsellor 4 or 5 times over two months, and the counsellor also saw her mother for 3 of the 5 sessions. This counselling had ended a year before her mother struck her. She went back to counselling after she was struck by her mother.

(f) The Defendant's Alleged Controlling Nature

[215] Complainant's Evidence

The complainant testified in chief that the defendant was very jealous and controlling. He laid down rules for her to follow. Both the complainant and the defendant worked downtown. The complainant's co-workers were all men. She testified that the defendant told her that when people in his line of work saw her downtown they would know who she was, so she was not to talk to, go to lunch to, or have coffee with male friends or colleagues. She said that if the defendant did see her with a man he would get very upset. He told her to keep her eyes down when she was with other men and not to make any contact that could be seen by them as an invitation to talk to her. The defendant denied all of this.

(g) The Defendant's Alleged Temper

[216] Complainant's Evidence

The complainant testified that she started noticing "little instances of anger" over jealousy issues shortly after she began her relationship with the defendant. She also noticed what she called "an explosive temper" over certain things with his children.

[217] Early Incidents

The complainant testified that the first time the defendant lost his temper and engaged in name calling was shortly after they moved in together in July 2013. It had something to do with the children. She testified that "his name calling was very extreme" and she was very upset because the children were there and could hear it. She testified that he apologized the next day and said he never wanted to do it again. She accepted the apology the first time. After the marriage, however, he did not always show remorse and acknowledge his mistake when he lost his temper.

[218] After the Marriage

She testified that after they got married in July 2014 she was punched in the face through a pillow, as described later in these reasons. She testified "from that moment on his volatility was unleashed."

[219] Escalation

He became verbally abusive to her, yelling and screaming all the time. He threatened her in various ways – to sell the house on a whim, to kick her out, and to kill her beginning in the fall of 2014.

[220] Walking on Eggshells

She testified that she asked him to go to marriage counselling and he refused. She described the situation with the defendant in the fall of 2014 as "walking on eggshells". She would walk in the room and he would explode. She began wearing a pink robe he had given her for Christmas around the house because it had a pocket in it that she used to carry her cellphone so she could use it if he exploded. She was afraid of him.

[221] Emotional Cruelty

She testified that before the marriage, the defendant had occasionally given her the "silent treatment". She thought it was a phase he was going through. After the marriage, however he started yelling and when he did so it was very loud. This began to occur regularly. He had occasionally called her names before the marriage but it got much worse after the marriage. He did not hold back. She described it as "almost like emotional cruelty".

[222] Physical Aggression

She testified in chief that it was common, beginning a bit before the marriage but occurring more frequently after it, for him to grab her wrists or her face with one hand. She said his rage was so strong and it ramped up so fast that he would grab her wrists or her face and push her against the wall. She is 5 feet seven inches tall and he is 6 feet tall and weighs about 100 pounds more than her. Sometimes she reacted by pushing her hands against his chest to push him back; if he was "starting to spew out disgusting names" she would put her hands over his mouth and sometimes that stopped him. She saw her main role as trying to calm him down. She told him that it was not right, that it hurts her. He called her disgusting names.

[223] Triggers

In examination in chief, the complainant testified that one trigger for his anger was jealousy. Another was his son. Occasionally they argued about money.

[224] Financial Issues

The complainant testified that when they moved in together in July 2013 they set up joint accounts. They decided that the complainant would put 80% of her pay cheques towards paying down the mortgages on the house. She supported her children. The defendant agreed to take care of groceries and household expenses. She testified that the defendant ran up a line of credit of $50,000 because he could not pay off his credit cards at the end of every month. She described him as a "big spender", with a BMW convertible and a Mercedes SUV. He had recently begun a new job which paid a lower income than his previous position. He would not talk about money issues, which led to some arguments.

[225] Complainant's Daughter's Evidence

The complainant's daughter said in her s. 715.1 interview that the defendant "has anger issues" and that her mother tried to help him by putting him in counselling but he would not let her. She said that her step-father "blows up really easily". She said that he started being like that since he and her mother married in July 2014, and that it makes her very nervous and scared.

[226] What She Observed

She said that she had never seen the defendant hit her mother, but she had heard him scream at her mother. She said that her mother screams sometimes, but "she tries to defend herself because like [the defendant] is like … he's just like I hear it every single night he yells so." She also said that after the defendant got very upset he got calm again.

[227] Complainant's Son's Evidence

The complainant's son said in his s. 715.1 interview that he had heard his mother and the defendant saying bad words to each other that they should not be saying. He also said that the defendant was "really mean to my mom."

[228] Defendant's Daughter's Evidence

The defendant's daughter testified that her father and the complainant often argued, often about money. She agreed that sometimes her father got so angry that he had to walk away to calm down.

[229] Defendant's Denial

The defendant denied ever threatening the complainant. He denied ever putting a pillow over her or punching her in the face. He testified that, contrary to the evidence of the complainant, her children, and his own daughter, he was "the most laid back guy." He said that it was the complainant who "could not handle little things." He testified that when the complainant testified that he would go berserk and "call her every horrible name" she was describing herself.

(h) Alleged Assault by Complainant Against Her Daughter with Which the Children's Aid Society Was Involved

[230] Complainant's Daughter's Police Statement

The complainant's daughter said in the s. 715.1 interview that her mother had hit her once, pointing to her forehead above her left eyebrow. She explained that she had been in a commotion at day care and a boy was always mean to her. She then said "and she just got angry because and then she just hit me yah". The police officer then said "so your mom hit you because you were fighting with a boy at school."

[231] Trial Testimony

In cross-examination, she testified that the C.A.S. had become involved as a result. She said that her mother struck her at the dinner table, in the dining room. She said "I don't remember the full thing but she just kind of smacked me kind of and she was wearing a ring." She denied that her mother had punched her, describing it as a slap. She denied that the defendant had been present when her mother struck her. She also denied that the argument between her and her mother had anything to do with the defendant.

[232] Complainant's Evidence

The complainant was asked about this incident in cross-examination. She testified that during dinner her daughter was "having a fit and a tantrum and she wasn't listening to me and she was telling me off and being rude". The complainant said she told her to take her food, go sit on the floor, and be quiet. Her daughter was swearing and "being really belligerent". The complainant grabbed her daughter from behind in an attempt to move her. Her daughter was flailing her arms and the complainant's large engagement ring hit her on the eye and left a mark.

[233] Complainant's Admission

The complainant admitted that she was "smacking her [daughter's] arms and trying to get control of them." She testified that she was trying to move her daughter to the floor, but she could not recall if she had succeeded. She said that she took responsibility for this, but said it was an accident. She did not intend to strike her daughter in the face with her ring. She denied that the defendant was present.

[234] Defendant's Evidence

The defendant testified that, contrary to the evidence of the complainant and her daughter, he had been present during the incident. He testified that he was in his office at home. He could not see into the kitchen from inside his office. He heard both the complainant and her daughter screaming but could not determine why. He stepped out of his office, to a position where he could see into the kitchen. He said he saw the complainant pinning her daughter down on her back on the kitchen floor, holding her neck with her left hand. He testified that the complainant's daughter was cowering, trying to shake her mother off. He said he saw the complainant "smack" her daughter several times on her head, hitting her in her left eye. He said he screamed at the complainant to stop.

[235] Defendant's Further Evidence

He testified that the complainant then grabbed her daughter, lifting her by the arm, and dragged her upstairs, slamming the door shut. He said he followed them upstairs to make sure that the complainant did nothing more to her daughter.

[236] The Ring

It was his evidence that the only ring the complainant was wearing was her engagement ring on her left hand, and she had hit her daughter with her right hand while holding her down with her left hand.

[237] Defendant's Lie to C.A.S.

The defendant testified that he was interviewed by a worker from the Children's Aid Society. It was his evidence that he lied to the C.A.S. worker and did not tell him or her about what he had seen the complainant do. He testified that he lied because the complainant had begged and pleaded with him relentlessly for several days, saying that she did not want to lose her daughter and begging to get help. The complainant denied this.

[238] Defendant's Daughter's Evidence

The defendant's daughter testified that on one occasion the complainant's daughter had a black eye. She said that the complainant's daughter told her that she had told someone at school about how she had got the black eye and the C.A.S. was called in. She testified that the complainant told her that if the C.A.S. called her she should not tell them what happened because she did not want the C.A.S. to take her daughter away. The defendant's daughter said she had not seen the incident herself.

[239] Defendant's Son's Evidence

The defendant's son testified that he had not been at the matrimonial home at the time of the incident, but when he returned home he saw that the complainant's daughter had a black eye. He said that he got a call from the complainant telling him that her daughter had made up lies about the complainant beating her, and asking him to tell the C.A.S., if they interviewed him, that she never touched her children. He was not interviewed by the C.A.S.

(i) Complainant's Alleged Assault on Her Daughter Before a Girl Guides Meeting

[240] Defendant's Evidence

The defendant testified that in September 2013 he was in his office in the matrimonial home. He said the complainant was at the front door and yelled up to her daughter, telling her to get downstairs so she could take her to a Girl Guides meeting and that she was tired of waiting. He said the complainant went to the top of the stairs and he heard her daughter yelling at her to get off her.

[241] The Alleged Assault

He testified he stepped out of his office and onto the second stair. He saw the complainant holding her daughter by the neck and her daughter struggling to get free. The complainant said "I told you to get downstairs" and pushed her daughter down the stairs. Her daughter fell down the stairs, coming to a halt at the landing halfway down. He said he asked his wife "what the hell she was doing", but the complainant ignored him, walked down the stairs and picked up her daughter, shoving her into the car in the garage and slamming the door.

[242] His Son's Observation

He testified that when she returned home, he told her that she could not assault her children. He testified that his son saw what happened on the stairs but his daughter saw only what happened in the bedroom.

[243] Defendant's Daughter's Evidence

The defendant's daughter contradicted what her father had testified about her knowledge. She testified that the complainant's daughter was in the bathroom getting ready to go to Girl Guides and she was in their bedroom, which they shared. She heard the complainant yelling from downstairs that her daughter should hurry up and her daughter responding that she was almost done. After this had gone on for a while the complainant "stormed in the room" and grabbed her daughter by the back of the neck. Her daughter yelled at her to stop. The defendant's daughter said she then heard a thump and stepped out of her room. The complainant's daughter was on the landing halfway down the stairs and was crying. She said the complainant then grabbed her daughter by the back of her neck, pulling her up and dragging her downstairs.

[244] Defendant's Son's Evidence

The defendant's son testified that he was in his room when the complainant called up to her daughter, saying "get your ass down here we have got to go". He said her daughter responded that she was just doing her hair and putting on her sash, to which the complainant repeated, yelling this time "get your ass down here." He said he was in his bedroom and could hear the complainant come upstairs and remonstrate her daughter. He said he was lying on his bed facing the door of his room and he saw the complainant drag her daughter by the back of the neck telling her to get downstairs.

[245] Continued Evidence

He testified that the complainant moved her daughter to the top of the stairs and told her to walk. Her daughter refused. He then heard a noise and heard the complainant's daughter crying. The complainant's daughter was lying on the landing halfway down the stairs. He said the complainant picked her up by the back of her shirt and told her to go right now and stop crying. They left.

[246] Complainant's Daughter's Denial

The complainant's daughter was asked in cross-examination if her mother had grabbed her by the neck in the bathroom, forced her out of the bathroom, and pushed her downstairs as she was getting ready for an activity. She said she had no such memory.

[247] Complainant Not Asked

The complainant was not asked about this alleged incident.

(j) Complainant's Treatment of Defendant's Son

[248] Defendant's Evidence

The defendant testified that in late May or early June 2014, some time after the incident with the complainant's daughter which had led to the involvement of the CAS, the complainant began to treat his son badly. He said she regularly called him things such as "fatso", "slob", "idiot", "moron", "asshole" and "fucking asshole". About twice a week, family dinners were interrupted by her belittling the children, usually the defendant's son. The defendant testified that she criticized the way he ate, telling his son that he did not hold the fork correctly, that he ate too fast, and that he ate with his mouth open. He said she would say things like "I cannot eat anymore, you are disgusting".

[249] Defendant's Daughter's Evidence

The defendant's daughter testified that she did not like the complainant. She said she was always yelling at her brother for little things. She said that at most meals the complainant would call her brother fat or say he eats like a pig or stomps like an elephant or says he is an asshole or says "the f-word". She called him a whale and said he was disgusting. These things occurred mostly during meals. This would cause her brother to try to defend himself and her father to tell the complainant to stop, which would in turn cause the complainant to get angry at her father and yell at him in an aggressive voice.

[250] Defendant's Son's Evidence

The defendant's son gave similar evidence.

[251] Complainant's Evidence

The complainant described the defendant's son as being "disruptive" towards her and the other children. She said he would regularly try to get his own way, often becoming very argumentative and aggressive, getting angry and raising his voice. He was disrespectful to her. She frequently caught him lying. If she found him doing something he ought not to do, he would lie to his father about it. She said she spoke to the defendant about these issues and sometimes he would make his son apologize. Other times he would say that he would talk to his son later. She described the defendant's son's behaviour as "manipulative" and said he would tell his father that she had done something wrong, causing the defendant to get angry. At one point, when it was suggested to her in cross-examination that she had assaulted her son in the kitchen, she said "we all know that [the defendant's son] lies".

[252] Complainant's Denials

The complainant admitted losing her temper with the defendant's son. She said that the boy was a trigger point for the defendant's anger as well. She denied ever getting physical with him – never pushing, shoving, or hitting him. She denied ever calling him names like "fatso" and "moron", "retard" or "idiot". She admitted saying that he had no manners and calling him a brat sometimes, and saying that he was acting like a bully and needed to stop.

[253] Complainant's Daughter's Evidence

The complainant's daughter denied ever hearing the complainant calling the defendant's son "fatso", "slob", "pig", "fucking moron", "retard" or "asshole". The only name she could recall the complainant calling the defendant's son was "brat".

(k) The Incident When the Defendant's Son Hurt His Heel on the Garage Door

[254] Defendant's Son's Evidence

The defendant's son testified that one day he was doing his homework in his room when the complainant asked him to take out the garbage. He said he told her that he would do it as soon as he was finished his homework. The complainant responded that it had better be done when she returned from taking her daughter to an activity. The complainant returned before he was finished his homework, so the garbage was not yet taken out. He said the complainant said to him "what the fuck is the garbage doing still in the garage?" He told her that he was still doing his homework and would do it in ten minutes. She responded that he had to do it right away. The defendant's son said he went downstairs and was putting his shoes on in the doorway to the garage while the complainant held it open. The complainant told him "go now" and pushed him from the back. The door clipped his heel as it shut. He was bleeding and on the floor of the garage when his father returned.

[255] Complainant's Evidence

The complainant was asked about this. She testified that she had no memory of it. She said that if the door had slammed on his heel it would have been because the door was designed to slam automatically, as a safety feature. She testified that the police had never contacted her about this incident.

[256] Complainant's Daughter's Evidence

In cross-examination, the complainant's daughter recalled an incident in which the complainant slammed the garage door on the defendant's son, although she did not remember the defendant's son limping afterwards.

(l) The Complainant Allegedly Jumping on the Defendant and Assaulting Him

[257] Defendant's Evidence

The defendant testified that on June 10, 2014 he was lying on the couch in the family room watching television when the complainant came in and said she wanted to lie down beside him. He told her that he did not want her near him, to which she responded by telling him to move over. He said that the complainant then tried to get on the couch beside him. He tried to get up, and she jumped on him, straddling him and pushing him back onto the couch. He testified that he told her to get off him, saying that he was tired of her constant criticism of his son. She responded by saying that his son was a "fucking asshole", and complaining that the defendant did not support her in family disputes. He said that she was forcing him to choose sides, and his kids came first.

[258] The Alleged Assault

The defendant testified that the complainant then hit him on his left cheek and stood up. He said "how could I ever marry someone like you?" and she hit him again in the head with her hand, saying "I wish you were dead". She then ran upstairs and went into their bedroom, slamming the door behind her.

[259] Complainant's Denial

The complainant was asked in cross-examination whether there were any times when the defendant's son or daughter would have seen her jumping on the defendant. She said that she would sometimes jump on the defendant's lap in a playful manner. She said that sometimes she would put her hands over his mouth in an attempt to stop his rage. She was asked specifically if she had ever jumped on top of the defendant when upset with him, grabbing him by the arms, putting him on his knees, and grabbing him by the mouth. She denied this, saying it was "nonsense".

[260] No Question About Specific Statements

The complainant was not asked if she had hit the defendant or said to him "I wish you were dead".

(m) The Defendant Allegedly Throwing Jewelry on the Floor of the Bedroom

[261] Complainant's Evidence

The complainant testified in chief that on one occasion, the defendant walked into their bedroom, took a drawer out of her chest of drawers which contained all her jewelry, and dumped it on the floor. She recalled that it was a Wednesday, she was in the bathroom, and the defendant was "on one of his rampages". She could not remember the specific issue he was upset about.

[262] The Aftermath

She said that she told him she was not going to clean it up. It sat there on the floor for a number of days. The defendant would "kick it around". She was worried that something would get broken but she did not want to clean it up. She recalled that just before the cleaning ladies were due, he told her that she better clean it up or it would be vacuumed during the cleaning. Eventually he cleaned it up and just threw it back in the drawer.

[263] Defendant's Denial

The defendant denied ever throwing jewelry on the floor.

(n) Alleged Threat by Defendant to Leave Complainant and Counter-Threat by Complainant That If He Did She Would Ruin Him

[264] Defendant's Evidence

The defendant testified that after the complainant threw the remote control on the carpet in the master bedroom, he got out of bed and said that he had had enough. He said he told her that he was done with her and was leaving her. She said to him that he would never leave her; that if he did "I will ruin you and take you for everything you have got." The defendant testified that he then looked at her and asked her if she was threatening him. She replied "damn right I am".

[265] Complainant's Denial

The complainant denied ever making such a threat. It was her evidence that they never discussed what would happen if he left her.

(o) Trip to New York and "Long John Silver" Incident

[266] The Trip

The defendant and the complainant took a family driving trip to New York City in the summer of 2013.

[267] Defendant's Account

The defendant testified while he was at the counter ordering food for his children at Long John Silver's, a restaurant in New Jersey, he heard the complainant screaming "at the top of her lungs". He turned to look. The complainant and her children were about 18 feet away from him. He said the complainant yelled at her daughter "I told you to get over there", grabbed her by the hair, and flung her into another booth, tearing out her earring in the process. He said he went over to ask the complainant what was going on. Her daughter was in tears. His daughter helped the complainant's daughter look for the earring but they could not find it. He said he did not speak to the complainant about the incident until they were alone later, and that she apologized, blaming her behaviour on the stress of having to deal with 4 children.

[268] Defendant's Daughter's Police Statement

The defendant's daughter said in her s. 715.1 interview that the complainant was aggressive with her children, and she threw her (the complainant's daughter) in a booth once and her ear was bleeding. When asked to give more details about that, she said that she forgot what happened but she just remembered the complainant throwing her daughter.

[269] Defendant's Daughter's Trial Testimony — Part 1

At trial, the defendant's daughter testified that the family stopped at a restaurant during a trip to New York state. Her father went to get hamburgers and the complainant's daughter said she wanted a hamburger as well. The complainant told her that she would have fish. This upset the complainant's daughter. The complainant then gave more food to her son than her daughter and her daughter got more upset and started to cause a scene.

[270] Defendant's Daughter's Trial Testimony — Part 2

The defendant's daughter testified that she, her brother, the complainant, and the complainant's two children were sitting at a booth while her father was across the room getting food. She said that as the complainant's daughter was arguing with her mother, the complainant grabbed her by the neck and threw her into another booth. She said the complainant's daughter started to cry and one of her earrings ripped out, causing her to bleed. The defendant's daughter testified that the complainant continued to yell at her daughter. She said that her father returned to the booth and saw that the complainant's daughter was bleeding. The family looked for the earring but could not find it. In response to a direct question, she said that her father had not said anything about the incident at the time.

[271] Defendant's Son's Police Statement

The defendant's son wrote in the notes he had prepared before being interviewed by the police under s. 715.1 on Nov. 27 "[the complainant] beats [the complainant's daughter] and rips her earring out and threw her in another booth." He told the police officer that the complainant's daughter was complaining that she did not want to eat the food her mother had given her and the complainant told her that she was going to eat. He said the complainant then grabbed her daughter by the hair and shook her, ripping her earring out of her ear.

[272] Defendant's Son's Trial Testimony

He expanded on this in his evidence at trial, saying that the complainant grabbed her by a strand of hair going from her shoulders to her chest; then hit her; then grabbed her by her hair over her ear on the left side; hit her a couple of times; and lifted her by her hair and ear and carried or dragged her to a booth on the opposite side of the restaurant. He said that the complainant "literally threw her into the booth" with such force that the complainant's daughter's feet were off the floor. He said his father then came over from where he had been getting food for him and his children and said to the complainant "What is going on – I can't believe you are doing this especially in public."

[273] Complainant's Daughter's Denial

The complainant's daughter testified in cross-examination that she, her brother, her mother, the defendant, and the defendant's two children went on a road trip to New York and New Jersey in the summer of 2013. She remembered the trip, but did not remember going to a delicatessen. Nor did she recall stopping at a restaurant called Long John Silver on the same trip.

[274] Aggressive Cross-Examination

The complainant's daughter was aggressively cross-examined. She denied any memory of this incident.

[275] Complainant's Denial

The complainant denied any memory of stopping at Long John Silver's. She also denied getting upset with her daughter because of her food order, grabbing her and throwing her in a booth, or her ear being injured.

[276] Complainant's Son Not Asked

The complainant's son was not asked about this incident.

(p) Trip to Florida and Pizza Place Incident

[277] Complainant's Account

The complainant testified in chief that she and the defendant decided to take the children to Disney World because she and her husband had had a honeymoon without them in Grenada. They booked a ten day trip, staying in three rooms beside each other –one for the two girls, one for the two boys, and one for the complainant and the defendant. She said that there were some stressful points early on as a result of the long lines and other things. She said that the defendant "was on a rampage" – "he was vicious and yelling and screaming in the hotel suite" and "going after me calling me names". She said he grabbed her face and threw a bottle of water in her face. He held her down by her wrists and threatened to kill the complainant and her children, holding his index finger and thumb together and saying he would crush her like a bug on the tarmac.

[278] The Pizza Restaurant

The complainant testified that the next day, the entire group went to a pizza restaurant at the Epcot Centre on the Disney World grounds. They ordered a large pizza to share. She said she was on pins and needles the whole time, worried about triggering the defendant's temper. She started cutting the pizza and handing the slices, first to her own children who were sitting next to her. She said that the defendant went into a rage, standing up, grabbing the pizza, and tearing it up. She said he put almost the entire pizza on his children's plates while cursing and swearing. She said he could not calm himself down and announced he was leaving with his children. He ran out of the restaurant with his children without eating any pizza. The two families spent the rest of that day and the whole evening apart.

[279] Complainant's Daughter's Police Statement

The complainant's daughter told the police officer in her s. 715.1 interview that the whole family went to Disney World in Florida in August 2014. She said that the defendant started yelling and swearing at her mother, her brother, and her, so the three of them went to a restaurant by themselves. Later in the interview, she said that the defendant told her and her brother that they were "fucking shits".

[280] Complainant's Daughter's Trial Testimony

In cross-examination, the complainant's daughter said that the trouble in Florida began with an incident when all six of them were at a pizza restaurant for lunch. She could not remember what the issue was, but remembered that they were arguing. She also recalled a fight in the hotel when the defendant was swearing at her and her mother and calling her, her mother, and her brother "bad names".

[281] Complainant's Son's Police Statement

The complainant's son told the police officer that the two days in Florida went "not that well because [the defendant] and my mom, I heard lots of swearing and like yelling really loud. Mostly [the defendant] was doing that, not my mom." He recalled the entire group going to a restaurant and the defendant leaving with his children. He said that the defendant threatened to divorce the complainant while they were in Florida.

[282] Complainant's Son's Trial Testimony

In cross-examination, he said he could not recall why the defendant and his two children left the restaurant, but he did recall that the two family groups were separated.

[283] Defendant's Account

The defendant testified that they ordered a large salad and a rectangular pizza. The boys finished their salad before the rest of the family, and his son reached in to grab a piece of pizza. He said the complainant asked him in a loud voice "what do you think you are doing?" He testified that he then told her to keep her voice down, which led to her waiting for everyone to finish before serving the pizza "out of punishment", and as further punishment served his son and daughter last, giving them corner pieces even though they did not like crusts. His son asked if he could have a different piece and she responded, in a loud voice, "No, you will eat what I give you." The defendant said he then switched pieces with his son. This upset the complainant. The defendant said he then paid the bill and left with his son and daughter, saying they would spend the rest of the day without the complainant or her children.

[284] Defendant's Account of the Hotel

The defendant testified that after the pizza incident, he and the complainant were discussing what to do the next day. The complainant was upset about what had happened at the restaurant and the defendant and his children spending the rest of the day alone. The defendant said he told the complainant that he had promised his children that they would go to Universal Studios theme park the next day. The complainant then jumped on him, causing a bottle of water to splash on both of them, more on him than her. She grabbed his wrists and pushed him back, causing his head to hit the headboard on their bed. She told him that the entire family had to stay together. He said he was tired of the arguing and went out into the common area of the suite. He denied ever screaming at her or threatening her in any way. They spent the next day with the defendant and his children going to Universal and the complainant and her children going to Disney.

[285] Defendant's Daughter's Trial Testimony

The defendant's daughter said during her s. 715.1 interview that she did not think anything had happened at a dinner while they were in Florida. She recalled it, however, when she testified in examination in chief at trial. She said that the entire family was at an Italian restaurant at Disney World. Her brother finished the salad course first. The pizza arrived and her brother went to grab a slice. The complainant swatted his hand away and told him to stop eating so quickly. She said the complainant then distributed the pizza slices, giving the pieces without a crust to her own children. The defendant's son asked for a piece without a crust and the complainant got angry, telling him to eat what he was given and calling him a pig and an elephant and fat. She said her father then traded a piece with his son and the complainant got angry with her father for not supporting her. She described the complainant as being loud. Her father then put some money on the table and he and his two children left the restaurant. They spent a few days away from the complainant and her children.

[286] Defendant's Son's Trial Testimony

The defendant's son testified that they all went to an Italian restaurant and ordered salad and a square pizza. He finished his salad first. He went to take a piece of pizza and the complainant slapped his hand, saying "wait you pig – wait for everyone to finish." She then gave a slice to her son and distributed all the pizza, giving the defendant's daughter a burn edge piece. His father asked her to give his children nice pieces like she had given her children. The complainant responded by saying that they would eat what she gave them. The defendant responded by taking his children's pieces and giving them new ones. He said his father then asked for the bill and left money on the table, leaving with his children.

(q) Complainant Allegedly Telling Her Children to Call 911 if She Was Getting Hurt

[287] The Instruction

The complainant testified that the day after the defendant threatened to "crush her like a bug on the tarmac", she took her children aside and told them that if she was getting hurt, to call 911. The complainant's daughter testified that while they were in Florida, her mother told her that if she ever got hurt or anything she and her brother should call 911. The complainant's son also recalled his mother telling him and his sister that they should call 911 if the defendant was hurting them.

(r) Alleged Punch Through Pillow Incident

[288] Complainant's Account

The complainant testified in chief that in July 2014, about ten days after the wedding, she and the defendant were in the basement of the matrimonial home. In cross-examination, she testified that she believed this had occurred "about July 21". She said that the defendant was planning to go to Montreal the next day on business. The children were in bed and it was about 10:00 p.m. The defendant was sitting on the corner of an L-shaped couch in the basement. The complainant was sitting closer to the other end. There was a cushion between them.

[289] The Alleged Punch

The complainant testified that the defendant suddenly became angry. He lunged at the complainant, grabbing the cushion between them and putting it over her face. He punched her hard on the face through the pillow. The complainant testified that she screamed. She said she did not see it coming at all. She was hurt badly, but there was no bruising because the pillow cushioned the blow. The defendant slept in the basement and left for Montreal early in the morning. They did not talk of the incident again.

[290] Defendant's Denial

The defendant denied that this had occurred. He denied ever putting a pillow over the complainant's face or punching her in the face.

(s) The Diary or Journal

[291] Complainant's Explanation

In examination in chief, the complainant testified that after they returned from the trip to Disney she started keeping a diary or journal. She said she started to write down things that the defendant did to her and said to her when she became afraid. She said she just "wanted to start keeping track".

[292] Police Interview

She testified that after the defendant had been arrested on Nov. 25, she was being questioned by a police officer. She said that she told him that when the defendant pushed her against the wall next to the shower that evening, she yelled out because her throat was already in pain from where he had hit her previously. The police officer asked her when that had happened and she responded by saying "I will have to look" and then retrieving the journal from her nightstand.

[293] Diary Entries

She testified that the entries in the journal were made shortly after the events described, with some entries being further removed in time from the incidents described than others. The diary was entered into evidence by the Crown, without objection by the defence. While it contains prior statements consistent with the complainant's evidence at trial, it was not proffered or admitted for the truth of its contents. Crown counsel said he was anticipating that the defence would argue that the complainant had fabricated the allegations of assault the night of Nov. 25 or later, and the diary served to rebut that allegation.

[294] Diary Content

The diary did include an entry dated Nov. 19 in which she wrote that the defendant "held me down by the wrists and choked me twice." It also included descriptions of other occasions when the defendant had assaulted her or acted badly towards her, including some of the prior incidents about which the complainant testified at trial.

[295] Dating Issues

In cross-examination, the complainant testified that she made the first entry about the Florida trip in the first week after they returned.

[296] Defendant's Access

The defendant testified that he "very very often" opened the drawer of the complainant's bedside table, because there were things in there that they often used. When asked if he had ever seen the diary in that drawer, he testified "not that I recall but even if I did I would not have opened up the book."

(t) Milestones Lunch and Coat Purchase

[297] Timing Confusion

In examination in chief the complainant testified that she had lunch with the defendant at the Milestones restaurant on Sussex Drive 6 days after the choking incident which she was certain had occurred on Wednesday November 19, because her son was there that night and she never had her children on a Thursday. In examination in chief, she testified that that meant that she had lunch at Milestones on a Monday 6 days later. In cross-examination, it was put to her that 6 days after the choking incident was November 25, the day that the defendant was arrested. She then said she had misspoken, and the lunch was on the 24th.

[298] The Sore Throat

She testified that she was unable to eat her salad because her throat was sore from being choked, and the "tanginess of the vinegar hurt". She said that the defendant had "mumbled an apology" even though he would not look at her or acknowledge it.

[299] Police Statement

In her statement to the police, after describing the choking to the officer, she said

He never acknowledges or apologizes …

[300] The Apology and Coats

She admitted saying this in cross-examination, and went on to say that it was a "very meek and mild apology". She said that she had told him that she could not swallow properly and asked what she could eat, saying that she would have to get soup. She testified that he then looked down and mumbled "sorry". She said that he did not want to give a heartfelt apology but that right after lunch they walked to a nearby store and he bought her three coats. She said she took this as an apology.

[301] Location of Coats

She said he helped her pick out the coats, then put them on hold with the cashier and later returned to purchase them. She found the three coats wrapped in tissue, in the bedroom. When confronted on cross-examination with the suggestion that she found the three coats hidden behind the furnace in the basement after the defendant had been arrested, she said that she could not remember where they all were but she had found them "not that long after" he was arrested, and one was definitely under the bed.

[302] Defendant's Account

The defendant testified that the lunch at Milestones took place on Nov. 25, the date he was arrested, and not Nov. 24. He produced a credit card account which showed that the defendant had charged $82.01 at Milestones and $786.76 at the store on Nov. 25. He testified that had not limited her lunch to soup; they both had an appetizer, salad, and a drink, and that if she had had only soup the bill would not have been that high.

[303] The Salad

I note, however, that the complainant did not testify that she did not order soup. In examination in chief, she testified that the vinegar in the salad dressing hurt her throat, indicating that she had ordered it and attempted to eat it.

[304] Defendant's Explanation

It was the defendant's evidence that everything was fine that day. He agreed with the complainant that he had not purchased the coats when they were in the store, and said he went back that afternoon to buy them for the complainant for Christmas. He said he hid them behind the furnace in the basement.

(u) "Gone Girl" Copycat Theory

[305] The Movie

The defendant testified that he and the complainant had seen the movie "Gone Girl" on the weekend of October 11, 2014, some 6 weeks before the night of his arrest. The movie tells the story of a woman who faked her own disappearance and set up her husband to be charged with her murder, leaving false clues which included a diary in which she had purported to reveal details of her supposed fears that her husband would kill her. He testified that after the movie, he and the complainant had discussed it at some length, talking about how "crazy" the story was. It was his evidence that his own case showed "eerie similarities" between what he remembered of the movie and what was in the diary his wife had shown the police. Defence counsel pointed to a number of similarities, including that in the movie, the protagonist had written in her fake diary that "this man of mine may kill me he may truly kill me" and the complainant had written in her diary that "I fear he may kill me one day."

[306] Complainant's Response

This was put to the complainant. She testified that she had seen the movie, but at home, not at a Cineplex. She rejected outright the suggestion that this had given her the idea to concoct a plot to ruin her husband by framing him for assaulting him. She testified "Your logic is flawed. I loved [the defendant] and that is why I stayed with him. It would make no sense to do this."

(v) Joey's Restaurant Incident

[307] Defendant's Sister's Evidence

The defendant's sister testified that she was at Joey's Restaurant in Lansdowne Park, a shopping and restaurant complex in Ottawa, on July 18, 2015. She was at a table with the defendant's friend and some other people. At one point, she went to the washroom. When she returned, the complainant was sitting at her seat. She did not recognize her. The complainant started talking about her experiences with her recent separation from her husband. She said that he had had her under surveillance and that he was a criminal and had lost his job. She testified that as the complainant said these things, she was taking pleasure in what her husband was going through. The complainant then said that her husband was the defendant and asked her if she was the defendant's sister. Shortly thereafter, the complainant left. All the people at the table were of the same ethno-cultural background as the defendant.

[308] Complainant's Response

The complainant was cross-examined about this incident. She initially testified that she did not remember it. When given more details, she recalled seeing her hairdresser at a table and that he asked her to come speak with him. She recalled talking to him about her situation, but she could not remember anything specifically that was said. She testified that she may have mentioned that her husband was facing a number of charges. She said she believed that she recognized the defendant's sister and was trying to place her. She testified that she did not recall any specific statements attributed to her, but she did not deny saying any particular thing.

(w) New Year's Eve 2013

[309] Defendant's Evidence

The defendant testified that on New Year's Eve 2013, he had invited his brother and sister-in-law to the matrimonial home. He said that his brother was watching a football game on television with his son, his mother, and the complainant's son. The complainant abruptly came into the room and changed the channel. He said the complainant then had a telephone conversation with her ex-husband during which she very loudly called him an asshole. The defendant's brother and son went down to the basement with the complainant's son to watch the rest of the game there. The defendant's brother gave similar evidence, as did the defendant's daughter and son. None of the complainant or her children was asked about this incident.

Part 4: Analysis Generally and in Respect of Collateral Issues

(a) How I Must Determine Whether the Crown Has Proven All Elements of Each Offence Beyond a Reasonable Doubt

[310] The Defence Evidence

The defence has led evidence – both his testimony and that of his children – which, if true, is inconsistent with his guilt on each of the charges. Consequently, I must, for each charge, determine whether, after considering all of the evidence, I believe any such evidence. If so, I must acquit.

[311] Reasonable Doubt

If I do not believe this evidence, I must still consider whether, after considering all of the evidence, I am left with a reasonable doubt as to whether any such evidence is true. If so, I will be unsure on the charge or charges to which such evidence relates and I must acquit.

[312] The Balance of Evidence

Finally, even if I do not believe or am not left with a reasonable doubt by the testimony which is inconsistent with guilt, I must determine whether the balance of the evidence establishes the guilt of the defendant beyond a reasonable doubt. Only if that is so may I make a finding of guilt.

[313] Disbelief and Guilt

In making this determination, I am not to consider any disbelief I have in the defendant's evidence to support a finding of guilt unless I find independent evidence that the defendant concocted a lie for the purpose of evading responsibility. (R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263; R. v. Sanchez, 2017 ONCA 994 at para. 37)

(b) How I Must Determine the Facts in Respect of Collateral Issues

[314] Collateral Issues

Collateral issues are different. It is not possible for some of the collateral issues raised by the Crown and defence to be resolved at this trial. Nor is it necessary that I resolve every one, although resolution of some of them may assist in determining the credibility and reliability of the key witnesses.

[315] Standard of Proof

For those issues that I can resolve, I need not do so by determining whether the Crown has proven beyond a reasonable doubt each fact upon which it relies. That is the burden of proof on the Crown with respect to elements of the offences and how I must deal with evidence which, if true, is inconsistent with guilt. But that is not the burden of proof with respect to all facts, and in particular with respect to facts which are neither elements of the offence nor inconsistent with guilt.

[316] Application of W.(D.) Framework

The standard of proof "beyond a reasonable doubt" does not apply to "individual pieces of evidence" – it applies to the overall "determination of ultimate issues." (R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345) Furthermore, as Justice Michael Code and Justice David Paciocco have written, the W. (D.) framework described above applies not to "any single fact or item of evidence", but rather to "vital" issues, the elements of the offence.

[317] Paciocco's Analysis

Justice Paciocco wrote, in "Doubt About Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (22 Can. Crim. L. Rev. 31):

For example, assume that the complainant describes being sexually assaulted and then adds that the last time she saw the accused was at a mall on Christmas Eve. Assume further that the accused testifies, denying the sexual assault, and denying he was even in town on Christmas Eve. The W. (D.) framework applies in resolving the general question of whether the sexual assault occurred, but it would be wrong to apply it in isolation to decide whether the complainant saw the accused at the mall.

[318] Unproven Allegations

Furthermore, as counsel agreed during submissions before me, if evidence is led in respect of a fact which is not an element of the offence, and I cannot conclude that that fact has been established, I cannot use that alleged fact, or my inability to determine its truth, in determining whether the Crown has proven every element of each offence beyond a reasonable doubt. Such unproven allegations of fact are "nothings" – mere allegations which have not been established.

(c) Each Charge Must Be Determined Separately, and Evidence Relevant to One Count Is Not to Be Considered in Determining Other Counts

[319] Separate Determination

The Crown brought no similar fact application. Consequently, the facts underlying each count may not be considered by me in determining whether the defendant is guilty of another count. It is important that I pay strict adherence to this rule so that a potential finding that the defendant is guilty of one count cannot be the basis for a finding that he is guilty of another count because of his "propensity".

(d) The Relationship Between the Complainant and the Defendant Was Tumultuous

[320] Finding

It is clear that the relationship between the complainant and the defendant was tumultuous. All witnesses testified to that. I find that they often argued, with raised voices, and from time to time used profanity directed at each other. The relationship became more troubled after the marriage in July 2014.

(e) Possible Collusion Between the Complainant and Her Children, or the Defendant and His Children

(i) The Law

[321] Collusion Defined

Collusion refers to the possibility that witnesses may have shared their stories with one another and, intentionally or accidentally, changed or tailored their stories in order that their testimony would seem more similar or convincing. Such collusion can destroy the potential probative value of testimony that would otherwise have seemed independent and compelling. Trial judges must consider the possibility of such collusion and determine whether the testimony of the witnesses is reliable despite the possibility of collusion or whether less weight, or no weight, should be given to the evidence which might have been influenced by the sharing of information. Where the witnesses are a parent and a child that is a factor to be considered but that alone does not justify a discounting of the children's evidence. (R. v. C.L., 2013 ONSC 277 at para. 71; R. v. J.F., 2003 CanLII 52166 (ON CA), [2003] O.J. No. 3241 at paras. 86-88 (C.A.); R. v. S.C., 2016 ONCA 83 at para. 34)

(ii) There Is a Possibility, But Not a Probability, of Collusion Between the Complainant and Her Children

[322] Police Interviews

The evidence in chief of the complainant's children consisted, in part, of recordings of interviews of them by the police on November 26, 2014 the morning after the defendant's arrest. The recordings were admitted into evidence under s. 715.1.

[323] Conversation After Arrest

The complainant's daughter testified in cross-examination that after the police had arrested the defendant and removed him from the house, she, her mother, and her brother sat down in the living room. They talked about the events of that evening for about a half hour. She could not recall what exactly they talked about. She admitted that her mother had told her during that conversation that the defendant had grabbed her that evening.

[324] Preparation for Trial

Defence counsel suggested to the complainant's daughter in cross-examination that, in preparation for her giving evidence, she and the complainant had discussed the incident when the complainant slapped or struck her. She denied this, saying that she and her mother had only ever discussed the incident during counselling.

[325] Complainant's Son's Evidence

The complainant's son testified that he did not discuss the events of the evening of November 25 with his mother and sister before he was interviewed by the police the next morning.

[326] Complainant's Evidence

The complainant testified that her children were asleep when everyone left the house on November 25 and she did not recall having a specific conversation the next morning before she got a call to go to the police station and they all left.

[327] Likelihood of Discussion

It is not credible that the complainant and her children did not talk about the events of the night the defendant was arrested before the children were interviewed on November 26. Any parent would talk about such things in those circumstances. I cannot conclude, however, that the two children and the complainant developed a detailed plan that evening about what they would say if asked by the police. They did not have time before the s. 715.1 interviews the next day. Some of the events had taken place days before. And the complainant's son was only 8 years old, making it more difficult for him to carefully recall and follow a planned story.

[328] Inconsistencies

I note that the complainant's daughter told the police officer who interviewed her that her mother had told her that the defendant had grabbed her, but said that she did not see that. Furthermore, as defence counsel has submitted in his written argument, the evidence given by the complainant's daughter about the incident which gave rise to C.A.S. involvement differed in its details from the evidence of the complainant. If there was a plan to deceive by having her say she saw things that she did not, it was not followed.

[329] Conclusion on Collusion

I conclude I must be alive to the possibility that the evidence of the complainant and her children has been tainted by collusion. The evidence on each charge must be carefully reviewed on this basis. I need not, however, approach the evidence of the complainant's children on the basis that there is a probability that it has been tainted.

(iii) There Is a Probability of Collusion Between the Defendant and His Children

[330] Police Interviews

The defendant's son and daughter were each interviewed by the police on Nov. 27, 2014, two days after the defendant's arrest. The defendant was released on bail Nov. 26, 2014. The interviews of each of the defendant's son and daughter were admitted into evidence under s. 715.1.

[331] Defendant's Daughter's Bias

In cross-examination, the defendant's daughter agreed that in her recorded interview with the police, she was making her father look good and the complainant look bad. She said in that interview that she did not think her father would ever hit the complainant. She testified that she hoped that her father would be found not guilty.

[332] Preparation for Trial

She testified that she had spoken with her father about testifying only twice – once when he told her and her brother that they would need to speak with his lawyers, and again after that meeting with his lawyers, when he told her and her brother that they would need to testify. She said she took no notes and all of her evidence was from her memory. Her brother contradicted this, testifying that they both made notes to refresh their memory before they were interviewed by the police.

[333] After the Arrest

She testified that on the night her father was arrested, she and her brother went to their mother's home. They talked with her about what had happened that night. The next day they went to their grandparents' home. The following day they went to speak to the police.

[334] Discussion of Events

Although she initially testified that she and her brother had not really spoken about the events after her father was arrested, she later admitted that she had spoken to her brother more than once about them. She said her brother remembered some things more than her, and she remembered some things more than her brother. She agreed that the night her father was arrested she and her brother had a number of questions and were talking about what happened.

[335] Suspicious Details

She also told the police officer who interviewed her for the s. 715.1 statement that her brother heard her father say, the night he was arrested, "how could I touch you, I'm on the bed". This suggests that she had discussed details of what had occurred with her brother before the interview. Furthermore, neither the complainant nor the defendant testified that the defendant was on the bed at any time during the altercation that evening.

[336] Poor Memory

The defendant's daughter was cross-examined about the events of Nov. 25, the night her father was arrested. She had a very poor memory of events that night except for the details she described which were inculpatory of the complainant.

[337] Opportunity for Collusion

The defendant's son had an opportunity to speak to his sister before he was interviewed by the police on Nov. 27, 2 days after his father was arrested. I accept the defendant's daughter's evidence that she spoke with her brother before the interview about what had happened.

[338] Coordinated Evidence

The defendant's son testified that he went to the police interview with notes he had made of events involving the complainant going back over a year because, as he put it, he "wanted to say everything that she's doing" and because he wanted to "show her character". He said he and his sister had decided to each make their own set of notes. His list described many terrible things the complainant had allegedly done to her children, the defendant, and the defendant's children. It was clear that he did not like the complainant and wanted to see her blamed for the family's troubles. Furthermore, his list of complaints was very similar to what his sister told the police and testified about.

[339] Conclusion on Collusion

I conclude that the defendant's children discussed with each other the evidence that they were going to give and both agreed to paint the complainant in a bad light. I must take this into consideration in determining whether to accept their evidence, either standing alone or as corroborary of other evidence.

(f) The Defence Attack on the Complainant's Credibility Generally Makes It Appropriate to Consider Her Credibility Generally as Part of the Process of Considering All of the Evidence

[340] Defence Position

The defence position is that the complainant concocted all of the evidence which paints the defendant in a bad light (both the charges and the collateral facts alleged by her or her children) and that she decided to do so sometime before the police arrived to arrest the defendant on Nov. 25, 2014. The defence points to a number of things which lead to that conclusion. In that context, it is appropriate for me to consider her credibility generally before I look at the evidence on each count.

[341] Cross-Examination

Defence counsel cross-examined the complainant for 10 days. He attacked her character and credibility. He had the complainant repeat her testimony on all of the issues of which she had testified in chief. Each incident was revisited more than once. Despite a skilful and aggressive cross-examination, the complainant's evidence showed no significant internal inconsistencies. The details she gave remained materially consistent throughout the 10 days of cross-examination.

[342] Omissions from Police Statement

Defence counsel also frequently put to the complainant that some details of which she testified had not been spoken of in her recorded statement to the police on Nov. 26, 2014. This does not, in my view, give rise to legitimate concerns about the accuracy of the complainant's evidence. It is unrealistic to expect that all the details testified to over 10 days dealing with events that stretched more than a year in the past would have been disclosed in 1 hour and a half interview the morning after her husband was arrested.

[343] Minor Inconsistencies

There were some details upon which I conclude the complainant was unreliable, but none of them are significant. One is the date of the lunch at Milestones. The complainant testified it was Nov. 25 in examination in chief, but changed that to Nov. 24 under cross-examination. The defendant testified it was Nov. 25, the day he was arrested. The credit card account shows a charge to Milestones on Nov. 25. That indicates that the complainant got the date wrong in cross-examination. She did, however, get it right when first asked in examination in chief. In any event, the date is not important. What is important is she testified to a lunch at that restaurant, and one clearly took place.

(g) The Defendant Was a Difficult Witness

[344] Demeanor

The defendant clearly wanted to control the evidence he presented to the court. In cross-examination, he often did not answer the question that was put to him. He was evasive. He took any opportunity to say yet again what a terrible person the complainant was, even if that was not relevant to the question he had been asked.

(h) The Complainant Delayed Reporting Alleged Abuse and Then Veered Between Wanting to Report and Actively Pursue the Charges and Wanting to Reconcile with the Defendant; This Does Not Undermine Her Credibility

[345] Her Changing Attitude

It is clear that the complainant's attitude toward the defendant changed many times. She married him despite her alleged concerns about which she testified. She did not report to the police the threats and abuses before September 2014 to which she testified. Her tone of voice on the 911 call suggests that she was unhappy that her daughter had called 911. In her statement to the police, she was unhappy that she would not be able to contact the defendant. She contacted him directly, contrary to the defendant's release conditions, and told him she wanted to reconcile with him. She did this even though she knew that by doing so she was exposing herself to charges. She gave the defendant instructions on how to enroll in a domestic violence program in an attempt to obtain lesser punishment and save their relationship. She offered to support him with Crown counsel if he did so.

[346] Change After Video Discovery

Then, after she discovered the video recordings from the bedroom and family room in the basement of the matrimonial home at the end of December 2014, her attitude changed. She no longer attempted to reconcile.

[347] Cross-Examination on Delay

In cross-examination, the complainant was asked why, despite what she described as the defendant's serious rage issues, the incidents in Florida, the incident on November 19 when he choked her in their bedroom, the death threats, the assault on November 23, and the assault on November 25, she had never phoned the police. She was asked why she never asked him to leave the house or threatened to leave herself.

[348] Defence Submission

It was put to her that she was a highly intelligent woman, with a good job, and able to support herself and her family. It was put to her by defence counsel that this was not a case of a battered woman who goes back time and again to her husband because she has nowhere else to go.

[349] Cross-Examination on Reconciliation

Defence counsel cross-examined the complainant about the difference in the attitude she showed to the defendant after his arrest, telling the 911 operator and the police detective that she was afraid of him, and telling his friend in a series of texts that she missed him. He also cross-examined her about her apparent desire to sometimes rekindle the relationship and other times to end it.

[350] Defence Submission

Defence counsel submitted that these things undermined the complainant's credibility.

[351] Complainant's Explanation

The complainant testified that she was fearful that if she complained and the defendant was charged, he would be released and assault her again. She testified that she was worried about what would happen financially if the defendant's relationship with her came to an end. She testified that she was "partly in denial" before the arrest, still loved her husband and had wanted to reconcile with him. I accept this evidence.

[352] Rejection of Defence Submission

I do not accept defence counsel's submission that her failure to complain at an earlier date, or her attempts to have the defendant reconcile with her after his arrest, are evidence that she was lying about the assaults on her by the defendant.

[353] Timing of Complaints

While the timing of complaints of domestic abuse is a fact that may be considered when assessing the credibility of a complainant, it is only one factor. Failure to complain at what may seem to be the first reasonable opportunity cannot be the basis of a presumptive adverse inference based on now rejected stereotypical assumptions about how persons react to acts of abuse. The reality is that there is no inviolable rule on how people who are the victims of trauma like domestic abuse will behave. Some will make an immediate complaint. Some will delay in disclosing the abuse. 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. 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. (R. v. D.D., 2000 SCR 43 at para. 65)

(i) The Complainant's Financial Affairs After the Defendant's Arrest Do Not Undermine Her Credibility

[354] The $22,000 Withdrawal

Defence counsel submitted that the complainant's credibility was undermined by her removal of $22,000 on the night the defendant was arrested from the joint account she shared with him. As I have indicated, the complainant testified that she believed that the true state of accounts between her and the defendant was such that, within a couple of weeks of the arrest, he owed her $22,000.

[355] Correspondence

Letters between the complainant's lawyer and the defendant's lawyer were entered as exhibits. Her lawyer wrote the defendant's lawyer on December 8, 2014, proposing, among other things, that the defendant reimburse the complainant $21,078.31 for "funds taken without the knowledge or consent of the other party". On December 10, 2014, the defendant's lawyer responded, writing that the complainant had received more funds than the defendant had.

[356] Use of Correspondence

The correspondence between the complainant's and the defendant's lawyers was not introduced into evidence to prove the truth of any of the statements contained in the letters. Those statements are hearsay. Nor can it be used to suggest that the complainant's trial evidence is corroborated or its credibility is enhanced because the complainant's lawyer made a statement which is consistent with the complainant's evidence at trial that the defendant owed the complainant approximately $22,000. But it does show the context in which the demand that the defendant pay $22,000 arose. At that time, there was a dispute between the defendant and the complainant in which the complainant was asserting that the defendant owed her $22,000, or thereabouts.

[357] Defendant's Transfers

Furthermore, the defendant testified in examination in chief that on November 25, before he was arrested, he had transferred $4,000 from the same joint account to his personal account. After his release from custody on November 26, he transferred $5,000 to his personal account and $7,800 to his credit card account from the same joint account.

[358] Conclusion on Financial Matters

This trial is not the forum in which to determine the state of the accounts between the defendant and the complainant in December 2014. I cannot and will not determine that issue. But I can and do take note that there was a dispute between them in which the complainant asserted the defendant owed her that sum of money. This may be taken into account by me in considering the submission of the defendant that the complainant should be assessed as less than credible because she demanded that the defendant pay money in an amount which she, in fact, had taken. (R. v. Khan, 2017 ONCA 114, paras. 41-44)

[359] No Credibility Undermining

I cannot conclude that the complainant improperly took $22,000 from the joint account she shared with the defendant. Even if she had, I do not conclude that such a withdrawal of funds from a joint account, in the context of a marital dispute and what the complainant had been told was a forced separation of the parties, would make her evidence about being assaulted less credible.

(j) The Diary Does Not Undermine the Complainant's Credibility

[360] Defence Submissions

Defence counsel submitted that the diary undermined the complainant's credibility. He submitted that it does so because:

(a) the complainant wrote in the diary that the defendant said he was going to "torment" the complainant's "kids", and the complainant never used the word "torment" in examination in chief;

(b) the diary includes the date of September 6 for an entry, and a notation "check date", even though the complainant would have been able to determine the date easily by "basic arithmetic" or by consulting the calendar on her phone had she prepared the diary in early September as she said she did;

(c) some pages had been ripped out before the pages which had been written on, and the complainant had testified that she did so because those pages contained entries relating to the defendant's name-calling and other inappropriate things before the marriage;

(d) the defendant testified that he had never seen the diary when he looked in her bedside table;

(e) the complainant's evidence that when she was asked by police for the date of the choking incident (alleged to be Nov. 19) she said she could find it by checking the diary is not credible because she would have known the precise date such a momentous event had occurred when it was less than a week before; and

(f) her evidence that she was not documenting the events in the diary to try to get the defendant in trouble was not credible.

[361] Rejection of Submissions

I do not accept these submissions. The precise words used to convey the threat are not determinative of credibility. The precise date of an event that occurred some time or less than a week prior may not be immediately at mind, particularly in a stressful situation such as the one the complainant could have been in when she started the diary or found herself in on Nov. 25, 2014. Nor may she immediately have thought to check the calendar on her phone. The pages could well have been ripped out for the reason she gave.

[362] Conclusion on Diary

While the diary does not enhance the complainant's credibility with respect to the prior consistent statements contained in it, I conclude that it does not diminish it either.

(k) The Defendant Made an Admission of Guilt When He Failed to Respond in the Telephone Conversations with the Complainant After She Told Him That She Could Not Recant Because She Would Not Perjure Herself

[363] The December 12 Exchange

During their telephone conversation of December 12, 2014, the defendant and the complainant had the following exchange:

Complainant: What else do you want me to do?

Defendant: I don't I'm not asking you to do anything right now.

Complainant: I'm serious strategically what else do you want me to do?

Defendant: Do what you think is necessary.

Complainant: [Defendant's name] you have to.

Defendant: Tell them it never happened. Do whatever.

Complainant: I can't perjure myself they'll charge me.

[364] His Silence

The defendant did not, at any time in the recorded conversation, say that the allegations were untrue or suggest that the complainant would not be perjuring herself if she told them it never happened.

[365] The December 15 Exchange

During the December 15, telephone conversation, the defendant and complainant had the following exchange:

Complainant: … I wanted to see you for Christmas but that's gonna make it really tight.

Defendant: So so is there any way that you can go in there and recant what you said?

Complainant: No no.

Defendant: Because this is not gonna be easy for me or you at this point.

[366] No Assertion of Truth

The defendant did not then say that if the complainant recanted she would be telling the truth as he testified he had in the unrecorded call of Dec. 2.

[367] Silence as Adoption

When a statement is made to a defendant in circumstances that call out for a reply, the defendant's silence may be interpreted as adoption of the statement. (R. v. Bridgman, 2017 ONCA 940 at para. 83.) As Martin J.A. wrote in R. v. Baron and Wertman, (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.):

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to have replied to them.

[368] Inference

Both of those conversations were, at the defendant's doing but unbeknownst to the complainant, recorded by him. I find that he did so in order to create evidence to be used at his trial if it was useful to him. It would have been useful to him if the complainant had agreed to recant, even if the recantation had been false, driven by a desire to reconcile. If the complainant's allegations about the assaults and death threat (the charges which had been laid at the time of the phone call) were false, it would have been reasonable for him to have responded to her statements by saying that she would not be perjuring herself because a recantation would be the truth. I conclude that he failed to do so because that would make the recording useless for his defence.

[369] Conclusion

I interpret his failure to do so as his adoption of her statement that she would be perjuring herself if she recanted.

(l) The Complainant's Credibility Is Not Undermined by Her Failure to Remonstrate the Defendant When He Said That His Worst Nightmare Was to Be Hauled Off to Prison Again Because of Something He Didn't Do

[370] The December 20 Exchange

Towards the end of the December 20 telephone conversation, the defendant and the complainant have the following exchange:

Defendant: Don't call me anymore please don't call me.

Complainant: Can I call you on Christmas?

Defendant: Uhh my gosh why don't you okay do whatever you want but listen I got to get off the phone okay.

Complainant: Are you but why do you keep rushing off we're already on.

Defendant: No I because I'm not allowed to talk to you.

Complainant: I know you are not allowed.

Defendant: Then stop it stop it.

Complainant: I know you're not allowed.

Defendant: You know what my worst nightmare is to be hauled off to prison while I'm sitting with somebody with a client with a friend with a family member and then have to deal with that whole ordeal again because of something that I didn't do.

Complainant: That's never gonna happen.

Defendant: It already happened.

Complainant: That's never gonna happen.

Defendant: It already happened and it's not gonna happen again.

Complainant: [Defendant's name twice]

Defendant: As far as I have control over it.

Complainant: It's never never never going to happen when I went into the Crown.

Defendant: Okay that's it.

Complainant: No I'm telling you.

Defendant: Don't repeat yourself.

Complainant: I'm telling you everything that I could to get you.

Defendant: Okay don't repeat yourself I don't care to hear about it.

Complainant: I did everything.

Defendant: Okay okay I have to hang up now.

Complainant: I could and I will do anything for you from this day forward before this day forward okay besides all the shit that happened in the first 24 hours that I totally regret but I don't like it wasn't my fault.

[371] Defence Submission

Defence counsel submitted that if the complainant was telling the truth about the assaults and the death threat, she would have responded by disagreeing with the defendant when he said that he did not want to have to deal with the whole ordeal of being hauled off to prison "again" for something he did not do.

[372] Crown's Submission

Crown counsel submitted that the defendant was not clearly saying that when he was arrested on Nov. 25, it was for something he did not do. Rather, he submitted, the statement could have been interpreted as the defendant saying that he did not want to be arrested for communicating with the complainant in breach of his bail condition, and he did not "do" that because she phoned him, contrary to his many recorded protestations. In other words, the word "again" referred only to being arrested, not to being arrested for something he did not do – he did not want to be arrested again, particularly for something that he did not do.

[373] Conclusion

I agree with Crown counsel's submissions. Given the context of the statement, it would be reasonable to assume that he was concerned with being arrested for a breach of his bail conditions. At best, it is not clear what "again" was referring to. I cannot conclude that the complainant adopted by her silence the suggestion that the defendant had been arrested on Nov. 25 for something he did not do.

(m) The Complainant Did Not Hit Her Son Because of Bedwetting

[374] The Conflicting Evidence

The defendant and his son both testified that they saw the complainant hit her son in the evening when, after being asked, he told her that he had not gone to the bathroom. The complainant denied this, as did her son and her daughter.

[375] Timing Discrepancy

The defendant's daughter testified that she saw the complainant "slap her son on the back of his head" in the mornings, not the evenings, and that she did so when he had wet the bed the night before. This contradicted her brother's and father's evidence, which was that the assaults happened in the evenings.

[376] Frequency Discrepancy

The defendant's daughter testified that the assaults happened most days. The defendant's son testified that they happened 40% of the nights he was in the home, and that she would hit her son in the front and back of his head with an open and closed hand.

[377] Complainant's Evidence

This evidence was completely contrary to that of the complainant and her children. The complainant acknowledged that her son sometimes had a problem with bedwetting. The complainant's daughter testified that her brother sometimes urinated in his sleep. All 3 denied that she hit him.

[378] Lack of Reporting

I cannot accept that the assaults would have continued with such frequency and not been reported to the authorities. The C.A.S. was in the house to investigate after the complainant struck her daughter. It is only reasonable that if assaults of this frequency were occurring they would have been reported to them by somebody.

[379] Discrepancies in Defence Evidence

The discrepancy between the timing and frequency of the alleged assaults as testified to by the defendant, his son, and his daughter is another reason to disbelieve the evidence.

[380] Collusion Concern

My concern with respect to collusion between the defendant and his three children is another basis for my disbelief.

[381] Conclusion

I do not believe the evidence of the defendant and his children that the complainant assaulted her children. Nor, for the reasons I have set out, am I left with a reasonable doubt on the point. I accept the complainant's evidence and that of her children. I conclude that the complainant did not assault her son as a result of his bedwetting.

(n) The Defendant and the Complainant Both Had Tempers

[382] Finding

I conclude that the defendant and complainant both had tempers, which from time to time they lost, resulting in them yelling at each other and their children. There was evidence about this from their own children.

[383] Relevance

I do not, however, conclude that this makes it more likely that the defendant committed the offences with which he is charged or that the complainant did the inappropriate things that the defendant and his children testified about.

(o) I Cannot Conclude That the Complainant Assaulted Her Daughter, Assaulted Her Son in the Kitchen, Abused the Defendant's Son, or Assaulted the Defendant

[384] The C.A.S. Incident

The evidence does not allow me to conclude that the complainant intentionally assaulted her daughter, in the incident which led to the C.A.S. investigation, the incident before the Girl Guides meeting, or the incident in Long John Silver's in New Jersey.

[385] The C.A.S. Incident — Analysis

The complainant testified that the incident which led to the C.A.S. investigation was an accident. Her daughter testified as to how it happened. Her evidence was not inconsistent with it being an accident. While the defendant testified he was there and the assault was much more serious than either the complainant or her daughter testified, I have no basis for determining whether his evidence is correct. His daughter and son did not see the incident.

[386] The Girl Guides Incident

As to the Girl Guides meeting incident, the complainant was not even questioned about it. How I could fairly make a finding of fact that this had occurred when the alleged culprit was not even given an opportunity to be heard is beyond me. In any event, her daughter had no memory of it. And the defendant and his children contradicted each other on what each had seen.

[387] The Long John Silver Incident

The complainant and her children denied any knowledge of the Long John Silver incident. The defendant's son and daughter both gave very brief evidence in their s. 715.1 interviews along the same lines – that the complainant was aggressive with her daughter, threw her in a booth, and (from the defendant's daughter) that her ear was bleeding and (from the defendant's son) that she ripped her earring out. The son had prepared a note for the interview which said that. They contradicted each other on whether the defendant had said anything after coming over to the booth from where he had been buying food, with the daughter saying he had said nothing and the son saying he had said "what is going on – I can't believe you are doing this, especially in public." I cannot conclude that this happened.

[388] The Kitchen Incident

Nor was the complainant asked whether she had hit her son in the kitchen, knocking him off the stool, because he was doing his homework too slowly. Her son was not asked about this directly. He was asked only whether his mother had ever hit him, which he denied. I am unable to accept the evidence of the defendant's children, given the failure to give the complainant an opportunity to be heard and my concerns about their collusion.

[389] Treatment of Defendant's Son

It is clear that the complainant disliked the defendant's son. She admitted as much, and to losing her temper with him from time to time. Given her and her daughter's evidence that no abuse occurred (which I have no basis to reject), I am unable, however, to conclude that she abused him to the extent testified to by the defendant and his children. I must discount the evidence of the defendant and his children because of my concern about their collusion.

[390] The Garage Door Incident

I am also unable to reach a conclusion about the alleged clipping of the defendant's son's heel by the door to the garage when the complainant pushed him through it. The complainant's daughter recalled it (contrary to how she would have testified if she was determined to only support her mother). The complainant denied any memory of it but did say that the door was designed to close automatically as a safety feature and this may have caused it to clip the defendant's son's heel. This may well have been an accident.

[391] The Alleged Assault on the Defendant

I am also unable to determine that the complainant assaulted the defendant in the manner described in his evidence. While the defendant testified that the complainant had jumped on him, hit him on the cheek and head, and said "I wish you were dead", she denied assaulting him. She was not asked if she had said "I wish you were dead."

[392] Collateral Issues

In saying that I can reach no conclusion on these points, it must be remembered that they are collateral issues in this trial. If established, their primary use would be to undermine the credibility of the complainant. Yet the trial's focus is the allegations set out in the 9 counts on the information. It cannot be expected that the same investigatory and evidentiary tools will be available or used for such collateral issues, or that a court will be able to reach conclusions on such issues to the same extent it can on the charges before it.

(p) I Cannot Determine the Facts in Respect of the Alleged Incidents in Florida

[393] Conflicting Evidence

I reach the same conclusion about the allegations relating to the Florida trip – I cannot determine what the facts are.

[394] Serious Allegations

Some of those allegations are serious – of death threats by the defendant. Yet even if I conclude that those allegations have been established, it would be wrong for me to use them to conclude that the defendant is more likely to have committed any of the offences with which he is charged – although I may have been able to conclude that he had an animus toward the complainant.

[395] Minor Incidents

Others are, with respect to the defendant, the complainant, and their families, of very little concern. I daresay many families have misbehaved at a pizza restaurant after a long day at Disney World. Such behavior is neither criminal nor indicative of likely criminal behavior.

(q) The Incident at Joey's Restaurant Is Irrelevant

[396] Irrelevance

Defence counsel submitted that the complainant's actions at Joey's Restaurant in July 2015 was evidence that, as he put it, from the moment she called the police, the complainant was on a mission to ruin the defendant. He submitted that she was there to blacken the name of the defendant, among his relatives and friends in his community. I cannot draw this conclusion. I am sure that even truthful complainants of domestic abuse are angry at their former partners and, from time to time, say things about them, in public and elsewhere, that would lessen their reputation among their friends and relatives. That does not make the evidence given by such persons less likely to be credible. In fact, these statements amount to prior consistent statements of the complainant. I do not consider them to either enhance or weaken her credibility.

(r) Other Collateral Issues

[397] Unestablished Facts

There are a number of other collateral issues about which evidence was led. It has not been established that:

(a) the complainant jumped on the defendant while he was lying on the couch and hitting him twice, once on his left cheek and then on his head;

(b) the defendant dumped jewelry on the bedroom floor and left it there for days;

(c) the complainant threatened to ruin the defendant and take him for everything he had; or

(d) the defendant punched her face through a pillow while they were on the couch in the basement of the matrimonial home.

[398] Established Facts

I do find that the complainant told her children while they were in Florida that if was being hurt, they should call 911. This was corroborated by the evidence of both her children. I do not, however, use this evidence to conclude that the defendant was more likely to have committed the offences with which he is charged.

[399] Gone Girl Theory

I do not believe that the complainant viewed "Gone Girl" and used it to concoct all of her significant evidence. There is no basis for this other than the false allegations made by the protagonist in the movie, her use of a diary to lead investigators down a false path, and speculation.

[400] New Year's Eve Incident

I do not find that the complainant acted rudely towards her guests on New Year's Eve 2013. None of the complainant and her children were asked about this. Nor do I see the relevance of this evidence.

Part 5: Analysis of Specific Charges Before the Court

(a) Count 1: Uttering a Threat to Cause Death on September 6, 2014

[401] The Only Witnesses

The only two witnesses to this count are the complainant and the defendant. The complainant testified about what occurred during an altercation in the basement which could have been no more than a few minutes. The defendant denied that any such thing had taken place.

[402] Credibility Assessment

I do not believe the defendant, given the evasive nature of his evidence and the implicit admissions made by him during the telephone conversations of Dec. 15 and 20.

[403] Belief in Complainant

I believe the complainant. She was not shaken during an intense cross-examination.

[404] Reasonable Doubt

I am however, left with a reasonable doubt as a result of the defendant's evidence. While the admissions, on their face, appear to be about all of the counts he was charged with at the time – counts 1 to 5 – they are not explicitly so. Corroboration is not required. But, in the circumstances of this case, without some other evidence that the defendant's evidence was not accurate or that the complainant's was accurate – such as corroboration of her evidence, independent evidence that I accept which was inconsistent with his evidence, or internal inconsistencies in his evidence on this count – I cannot say that I am satisfied beyond a reasonable doubt that the Crown has proven its case.

[405] Dismissal

Count 1 is dismissed.

(b) Count 2: Assault on the Complainant on November 19, 2014

[406] The Complainant's Evidence

The complainant testified at length about this incident, which, according to her evidence, went on for some time. Only three inconsistencies in her evidence were suggested by cross-examination:

(a) she admitted that she had not told police in her initial statement that she had gone downstairs for two hours;

(b) although she testified that she was worried, when the defendant went downstairs after choking her, that he might be getting a knife, she had not told police this in her statement, or written it in her diary; and

(c) she testified that the next day her son asked her if the defendant had had his hands around her throat because he had heard her asking him "are you going to kill me?"; she had written this in her diary, but had not noted that the conversation took place the next day.

[407] Significance of Inconsistencies

I do not take these inconsistencies – if they can even be described that way – as indications of lack of credibility or reliability. Rather, they are details of a kind which are often not recorded in contemporaneous documents but which come out as a result of the quite different process of answering questions under oath in a courtroom. I would be surprised if such details did not emerge.

[408] Corroboration by Son

The complainant's evidence was corroborated by the evidence of her son, who testified that he had heard his mother ask "are you going to kill me?" in a low, hoarse voice. When he testified, her son lowered his voice and affected a hoarse tone to indicate what it had sounded like. He said this made him think that his mother was being choked.

[409] Diary Entry

This evidence is consistent with the note in the complainant's diary. This note does not enhance the credibility of the complainant's evidence, because it is a prior consistent statement. That statement, however, was made before the arrest on Nov. 25, because it was in the diary which was given to the police that evening. If the evidence of the complainant and her son was fabricated, it would have had to been fabricated between Nov. 19 and the time of the defendant's arrest on Nov. 25. That is possible. But for the complainant's son's evidence to be false and the result of collusion, he would have had to have colluded with his mother before the time of the arrest – i.e. between Nov. 19 and Nov. 25 – or in the evening after the arrest or the next morning before he was interviewed for his s. 715.1 statement. That is very unlikely, particularly when one considers that he was only 8 years old at the time. This does not bolster the complainant's son's credibility, but it does assist to rebut the suggestion that it was fabricated before he gave his s. 715.1 statement.

[410] Observation of Son

Furthermore, I watched the complainant's son carefully, both in his trial testimony and in the video recording of his s. 715.1 statement. I am convinced that he testified to something he was remembering when he acted out how he had heard his mother's voice Nov. 19.

[411] Video Card Evidence

The memory card from the surreptitious video camera in the basement disguised as a motion sensor contained images from a number of days between September 17 and December 6, 2014. It contained no images from November 19, 2014 even though the complainant testified that she went into the basement that day after the defendant had lost his temper when she walked into his son's bedroom while he was talking to him. It did display images from dates before and after. Defence counsel submitted in argument that this proved that the complainant did not go in the basement that day.

[412] Accuracy of Timestamps

The complainant testified, when she was being asked about the video which showed sexual activity in the basement, that she believed that the timestamp was accurate. The card contains images date stamped Nov. 22 and Nov. 23 which show what appears to be a slumber party attended by the complainant and her daughter. Her daughter's birthday is […]. When she was interviewed by the police on Nov. 26, she said that she had had a birthday party "last weekend". That would be the weekend of Saturday, Nov. 22 and Sunday, November 23. This suggests that the datestamp is accurate.

[413] Limitations of Evidence

However, neither the complainant nor her daughter were asked the date of the party. This would have been better evidence of the accuracy of the date stamps. Nor was the defendant asked about the party. This evidence was not commented on or played during the trial at all – instead, it was filed as part of the video card, and reference was made to it only in written argument, filed three months after evidence was complete.

[414] Clips Out of Order

Furthermore, the clips on the video card are clearly out of order. It cannot be described as a continuous, complete, or chronological display of all activity in the basement family room.

[415] Gaps in Recording

On the night of the slumber party datestamped Nov. 22 and 23, there are 259 clips between 9:03 pm. Nov. 22 and 9:13 a.m. Nov. 23. Each clip is quite short. I did not look at all of them, but almost all the ones I looked at were less than 30 seconds, with most being less than 10 seconds. They showed a number of people in the room. There were substantial blocks of time when the room was occupied and the camera was not activated or the recording was not saved. It is obvious that the camera did not record all activity in the room.

[416] Sequential Interruptions

The clips are displayed in date and time order, except that there are 10 to 15 periods when the sequential time/date order is interrupted. For example, on September 22 after 7:18 p.m., the sequential list of images is interrupted by a series of images purportedly on September 20, 21 and earlier on September 22. The sequential list is interrupted twice between October 3 and 5, and three times between November 18 and Dec. 6. The sequential display skips from a clip on November 18 at 9:03 p.m. to one on November 23 at 8:12 p.m. It then skips again from a clip at 2:02 p.m. on December 1 to a clip timestamped November 20 at 4:59 p.m. Finally, it jumps from a clip timestamped 7:04 pm. on November 20 to one stamped December 6 at 11:33 a.m.

[417] Possible Explanations

It may be that the clips were downloaded to another memory card, rearranged, and then loaded back on in a different order than they were originally recorded. Or the card was removed and reinserted after a gap when the device was not recording. That gap may have included November 19. Or the datestamp may be wrong. No evidence was led to support or reject any of these hypotheses. The issue was simply not addressed.

[418] Limited Field of View

Furthermore, comparison of the portion of the room shown by the fake motion detector with photographs of the family room entered into evidence shows that the entire room is not displayed by the hidden camera. In particular, a desk against one wall is not shown.

[419] Conclusion on Video Evidence

In the absence of further evidence, I cannot find that the complainant was not in the basement family room on November 19 as she testified she was.

[420] Credit Card Evidence

Defence counsel submitted that a charge made to the defendant's credit card for a Nov. 25 meal at Milestones was inconsistent with the complainant's testimony. His submission was that she would not have ordered a salad if her throat had been damaged so badly by being choked on November 19th, as she testified. The credit card account showed a charge which, according to the defendant's testimony, included the salad which the complainant regularly ordered. But the complainant testified that she did order that salad – but could not eat it, because of her sore throat and the effect of the vinegar in the dressing. The credit card account is not inconsistent with her evidence.

[421] Defendant's Account

The defendant agreed with the complainant about the way the incident started – with him speaking to his son in his son's bedroom at the complainant's request after she perceived him to have been rude to her. He denied assaulting the complainant, holding her on their bed, or choking her.

[422] Defendant's Son's Evidence

The defendant's son did not testify about anything other than the events leading up to his father being in his room and the complainant bursting in.

[423] Belief in Complainant

I believe the complainant about the events of the evening of Nov. 19, 2014. She was not shaken in cross-examination, and her evidence was corroborated by her son.

[424] Disbelief in Defendant

I do not believe the defendant's evidence. My lack of belief is based on the evasive nature of his evidence, his implicit admissions of Dec. 15 and Dec. 20 and my belief in the accuracy of the complainant's evidence. Nor am I left with a reasonable doubt by his evidence, for the same reasons.

[425] Finding of Guilt

I find that the Crown has proven beyond a reasonable doubt, by the evidence of the complainant as corroborated by the evidence of her son, that the defendant twice flipped her over in her bed, held her down, and choked her.

[426] Verdict

I find the defendant guilty of count 2.

(c) Count 3: Wilfully Destroying a Remote Control on Nov. 19, 2014

[427] Ownership Issue

This count particularized the owner of the remote control to be the complainant. No evidence was led by the Crown about who owned the remote control. The defendant testified that it was owned by Rogers. The Crown is bound by its particulars. The Crown not having proven ownership by the complainant, this count is dismissed.

(d) Count 4: Assaulting the Complainant on Nov. 23, 2014

[428] Cross-Examination

The complainant's evidence was not significantly shaken during the extensive and intensive cross-examination by defence counsel. Defence counsel points to three things – the inherent incredibility of the defendant having to ask for instructions how to cook rice when he was acknowledged to regularly cook for the family; Loblaws and Costco receipts showing expenditures of $22.94 and $127.60 respectively that day when she had accused him of lying about grocery shopping; and the inherent incredibility of the complainant's evidence that the defendant had demanded she unlock the bedroom door when it could be unlocked from outside by a pin or ballpoint pen refill.

[429] Rejection of Defence Points

None of those points lead me to conclude that the complainant was not credible.

[430] The Rice Box

Her evidence was not that the defendant was asking her how to cook rice, but to read the package. The defendant needs reading glasses. Different types of rice require different cooking times and techniques. It does not seem unlikely to me, if the defendant was unable to locate his reading glasses, and he had just had an argument with the complainant in which he told her that her kids were "fucking idiots", that he would lose his temper and demand that she read the box to him rather than look for reading glasses himself.

[431] The Locked Door

Nor is it incredible that the defendant would demand that the bedroom door be unlocked when it could be opened with a pin or a ballpoint pen refill. He may not have had either handy. The complainant's evidence was that the defendant was in a rage when he made that demand. People in rages do not always think clearly or act reasonably.

[432] The Groceries

The complainant testified that she believed that he was lying about buying groceries because she saw no groceries. Groceries worth $22.94 would not amount to much, or be hard to miss. Nor does $127.60 at Costco mean that a large amount of groceries were bought there – that store sells many things. In any event, she could have simply missed seeing them. The issue is not whether she was right about the groceries, but whether they got into an argument that night.

[433] Corroboration

The credit card account does corroborate the complainant's evidence that the defendant told her he had been at Chapters that day, as she testified.

[434] Photograph Evidence

Most importantly, the complainant's evidence that they did get into an argument is significantly corroborated by the picture of the items from the shower caddy on the shower stall floor.

[435] Staging Theory

The defendant submits that the photo was staged. Yet the manner in which it was produced belies that submission. Defence counsel suggested to the complainant in cross-examination that if the assault in the shower stall had actually occurred, she would have taken a picture of it for evidence and told her that that would be useful evidence. She replied that she had told the police officer when interviewed on Nov. 26 that she had a picture of the shower stall. The interview transcript confirms that she did tell the police officer that. Defence counsel then asked if she still had it on her phone. She said she would look for it. She did, and subsequently produced it.

[436] Metadata

The defendant identified two of the items on the floor of the shower as being his. The metadata of the photo showed it was taken on Nov. 23 at 6:07 p.m. It was clearly taken at the time of the alleged assault. The defendant had left the home two days later, never to return. If the complainant had taken the picture for the purpose of concocting corroborating evidence, she would have shown it to the police well before trial. Yet she did not do so. For the photo to have been staged, as submitted by defence counsel, she would have had to have taken it on Nov. 23 and kept it until trial in the hopes that an opportunity would arise for her to produce it. I do not accept that as a reasonable possibility.

[437] Belief in Complainant

I accept the evidence of the complainant. Not only was she not shaken in cross-examination, but her evidence is corroborated.

[438] Disbelief in Defendant

I do not believe the evidence of the defendant, because of the evasive nature of his evidence, his implicit admissions on Dec. 15 and 20 and because I believe the evidence of the complainant. Nor am I left in a reasonable doubt by his evidence, for the same reasons.

[439] Finding of Guilt

I conclude that the Crown has proven beyond a reasonable doubt, by the evidence of the complainant as corroborated by the photograph, that the defendant assaulted her on Nov. 23, 2014 by pushing her to her knees in the shower stall and throwing the shower caddy and its items on top of her.

[440] Verdict

I find the defendant guilty of count 4.

(e) Count 5: Assaulting the Complainant on Nov. 25, 2014

[441] Agreed Facts

The evidence of both the defendant and complainant, corroborated by some or all of their children, establishes the following facts:

(a) the complainant and the defendant were in an argument in the bathroom that evening;

(b) the argument arose because the complainant had made two $325 deposits into an RESP for her children from an account held jointly between her and the defendant;

(c) the argument began when the defendant entered the ensuite bathroom off the master bedroom, carrying a coffee cup;

(d) the defendant was angry and, at one point, grabbed the hair dryer the complainant was using to dry her hair and left the bedroom with it, going downstairs and throwing it out the patio door;

(e) the defendant told the complainant to pack her things and leave the house that night, and that he was going to call a realtor the next day and put the home up for sale;

(f) the complainant's daughter called 911; the call was interrupted several times, and the complainant, the defendant, and the complainant's son spoke on the phone to the 911 operator.

[442] Complainant's Account

The complainant testified that the defendant threw the cup of coffee at her, with the coffee going all over the vanity, the sink, and "everything". She also testified that the defendant pushed her and pinned her against the bathroom wall, holding his arm across her throat. She said he then left the bathroom, and her daughter entered while she was cleaning up the coffee. She said the defendant then returned to grab the hair dryer. After going downstairs and throwing it out the patio door, he came back upstairs and stood at her son's door, yelling "get out now".

[443] Defendant's Account

The defendant testified that the complainant pushed him into the sink as he reached out to turn off the hair dryer, causing the coffee in his hand to drop into the sink and splash on the mirror, but not on the complainant or anywhere else. He said he then took the blow dryer out of her hand and the complainant shoved him, clawing him in the chest, scratching him on the neck, and swatting him on the back of his head. He went downstairs and the complainant followed him. He tossed the dryer out the patio door when his son came down to tell them that the complainant's daughter was on the phone with the police. The complainant went back upstairs and he followed her, standing in the hallway outside her son's room. He then went back downstairs, followed by his children. He denied telling the complainant's daughter to get out of the house "now".

[444] Railing Statements

The defendant testified that she had falsely claimed that he was hurting her when he was speaking to the 911 operator. He and his children all testified that she had stood at the railing on the second floor overlooking the main floor or on the landing halfway down yelling "don't hurt me don't hurt me he is trying to kill me".

[445] Audio Evidence

The audio tape of the 911 calls does record some shouting. In the first call, when the defendant was on the ground floor and the complainant's daughter was talking to the 911 operator upstairs in her bedroom, a male adult voice can be heard in the background shouting "don't touch me". The defendant testified that he had shouted this when he and the complainant were on the main floor when one of the children was on the phone talking to the 911 operator in an upstairs bedroom.

[446] Absence of Complainant's Voice

The defendant and his children testified that the complainant was yelling "don't hurt me don't hurt me he is trying to kill me" either beside the defendant while he was talking to the 911 operator on the main floor, on a landing halfway upstairs or at a railing overlooking the main floor while the 911 operator was talking to someone on a phone in a bedroom. All those locations were closer to the phone than was the defendant when the complainant's son was talking to the operator in the first call. While some shouting can be heard in the background of the calls, the complainant cannot be heard yelling "don't hurt me don't hurt me he is trying to kill me" or any words like that.

[447] Complainant's Emotional State

The complainant was clearly upset that the police had been called when she first got on the line with the 911 operator. Furthermore, while she did tell the operator in the last call that he had pushed her into the wall and held her neck earlier that evening, and choked her the previous week very badly so her throat still hurts, she tried to convince the operator to not send police in in the same call, moments later. This is inconsistent with her, at the time of the call, wanting to concoct a set of false charges for the police to lay against her husband.

[448] Implausibility of False Statements

It is extremely unlikely that the complainant would yell "don't hurt me" and "he is trying to kill me" when the defendant is nowhere near her and not only the defendant and his children but her own children could clearly see that the claim was false. Unless she had agreed with her children that they would not tell the police about what she was going to do in the moments between the first call and her supposed exclamations, a scenario which is so unlikely that I conclude it did not happen, she would have been running the risk of having her scheme exposed.

[449] Children's Testimony

The complainant testified she did no such thing. Her children testified that they did not hear any such exclamations from her, and they would have been able to hear them if they occurred.

[450] Discounting Defence Children's Evidence

The defendant's children probably colluded in their evidence. I discount it significantly for that reason.

[451] Conclusion on Railing Statements

I conclude that the complainant did not make these exclamations.

[452] Corroboration by Daughter

The complainant's evidence about the assaults in the bathroom was corroborated by her daughter.

[453] Pounding Sound

Her daughter testified that she had heard noises "like a pounding on the wall" and screaming before she went running into the bathroom. This is consistent with the complainant's evidence that she was pushed against the wall by the defendant before he left and her daughter came in.

[454] Coffee on Floor

Her daughter's evidence that she saw her mother kneeling on the floor cleaning the coffee corroborates her evidence that the coffee was not "dumped in the sink" but was thrown, causing some to go on the floor.

[455] Daughter's Credibility

I have considered the potential for the daughter's evidence to have been tainted by collusion. I conclude that it has not been tainted. I have set out above her evidence about the mark or coffee she saw on her mother's forearm, and her ultimate evidence that she was not sure which it was. If she had colluded with her mother to concoct evidence that would help her, it would have been more decisive than hers was on this point.

[456] Son's Corroboration

The complainant's evidence that the defendant came back upstairs after throwing the hairdryer out the patio door and stopped at her son's door yelling "get out get out now" is corroborated by her son's evidence that the defendant went downstairs, came back up, and stood at his doorway threatening to kick him, his sister, and his mother out of the house. This contradicts the defendant's evidence that he did not go back upstairs.

[457] Defendant's Children

The defendant's children did not give evidence which contradicted the assault in the bathroom.

[458] Scratches

The evidence in the photograph of the defendant taken on Nov. 26, the morning after his arrest, is not inconsistent with the complainant's evidence. The marks are very light. They are consistent with the complainant pushing the defendant back with her hands on his chest, as she testified. They are also consistent with the defendant scratching himself lightly while in the cell before the photograph was taken.

[459] Belief in Complainant

I believe the complainant's evidence.

[460] Disbelief in Defendant

I do not believe the defendant's evidence, because of the evasive nature of his testimony, his implicit admissions on December 15 and 20, the contradictions described above, and because I believe the complainant's evidence. Nor am I left with a reasonable doubt as a result of his evidence, for the same reasons.

[461] Finding of Guilt

I conclude that the Crown has established beyond a reasonable doubt, on the basis of the evidence of the complainant as corroborated by her daughter, that the defendant assaulted her on Nov. 25 by throwing coffee at her, and pushing her against the wall in the bathroom, holding his arm across her throat.

[462] Verdict

I find the defendant guilty on count 5.

(f) Count 6: Voyeurism in the Master Bedroom Between Dec. 4, 2013 and Dec. 31, 2014

[463] The Charge

The defendant is charged with breaching s. 162(1)(a) of the Criminal Code. That provision reads:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity

(6) No person shall be convicted of an offence under this section if the acts that are alleged to constitute the offence serve the public good and do not extend beyond what serves the public good.

(7) For the purposes of subsection (6),

(a) it is a question of law whether an act serves the public good and whether there is evidence that the act alleged goes beyond what serves the public good, but it is a question of fact whether the act does or does not extend beyond what serves the public good; and

(b) the motives of an accused are irrelevant.

[464] Admissions

The defendant admits that he installed the Samsung DVD recorder – a device which looked like a DVD player but also recorded what was in its field of view - in the master bedroom, and that he did this unbeknownst to the complainant. He also admits, as is clear, that this was a surreptitious recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, and the complainant was in a place in which she could reasonably be expected to be nude, to expose her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity. The defendant relies on the provisions of s. 162(6), what has been referred to as the "public good" defence.

[465] The Public Good Defence Framework

The public good defence was considered by the Supreme Court of Canada in R. v. Katigbak, 2011 SCC 48, in the context of a charge of possession of child pornography. Prior to November 2005, the Criminal Code included a defence of public good which used the same wording as is now contained in the voyeurism provisions set out above. The Court established the following principles:

(a) If the defence is raised, the trial judge must determine whether, considered objectively, there is evidence that the activity in question advanced the public good:

(b) If so, the Crown bears the burden of proving beyond a reasonable doubt that the public good was not served by the actions of the accused;

(c) The "public good" means "necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest";

(d) If the court is left with a reasonable doubt that the activities, viewed objectively, served the public good, the court must go on to ask whether the conduct of the accused extended "beyond what served the public good";

(e) Although it is a question of law whether there is evidence that the act alleged went beyond what served the public good, it is a question of fact whether it did so and the Crown bears the burden of proving beyond a reasonable doubt that it did so;

(f) The requirement that the acts not go beyond the public good ensures that the public good defence will only be available if all of the activities that are alleged to constitute the offence are connected to the advancement of the public good;

(g) The focus is on the effect of the activity, not the motives of the accused.

[466] Supreme Court Clarification

The majority of the Supreme Court, in reasons written by the Chief Justice and Charron J., expanded on the last point set out above in discussing the submission by the defendant that "the purpose of the possession is the focal point of the public good defence." They disagreed. They wrote:

As discussed above, the assertion that the accused's purpose was to advance the public good is not enough to establish the defence. The question is whether, viewed objectively, the evidence supports the contention that the activities in question actually served the public good. The accused will be acquitted if the trial judge is (1) left with reasonable doubt as to whether "the public good was served by his conduct, and (2) if so, the Crown has not established beyond a reasonable doubt that the conduct extended beyond what served the public good. The trial judge addressed neither point. She merely accepted that Mr. Katigbak's purpose for possession was to create a public exhibition on child abuse. [emphasis in original]

[467] Steps in Analysis

Consequently, I must take the following steps in addressing the public good defence as raised on this count:

(a) Determine whether there is evidence that the surreptitious monitoring of the complainant in the bedroom served the public good;

(b) If so, determine whether the Crown has proven beyond a reasonable doubt that it did not serve the public good;

(c) If so, determine whether there is evidence that the surreptitious monitoring of the complainant in the bedroom went beyond what served the public good; and

(d) If so, determine whether the Crown has proven beyond a reasonable doubt that the surreptitious monitoring of the complainant in the bedroom went beyond served the public good.

[468] Objective Assessment

Each of those determinations must be made objectively. The defendant's purpose or motive for carrying out the surreptitious monitoring is irrelevant.

[469] Defence Submission

The defence submits that the Crown has not proven beyond a reasonable doubt that the surreptitious recording did not serve the public good and or went beyond what was necessary to do so. Its submission to that effect, at paragraphs 759 to 768 of its written submissions, can be summarized as follows:

(a) the defendant installed two surreptitious cameras to monitor the complainant amidst claims, some of which he witnessed first-hand, that she was abusing her own children;

(b) he then reviewed the footage with relative regularity, and testified that if he heard a specific complaint, he would follow up in kind;

(c) he had it "on good authority" to believe she was abusing her own children and created a solution "tailored to the problem" - hidden cameras in select areas, all responsive to the complaints he was hearing, to be "his eyes when he could not be there";

(d) while he did not catch the complainant abusing her children, he did create a system of accountability so that if she did, he could expose her;

(e) he did not continue filming in the bedroom when he was in the city and did not share the footage;

(f) his actions were necessary to try to expose a person who continually minimized, deflected, and hid.

[470] Fundamental Error

A fundamental error in this analysis is that it depends on the purpose of the defendant in creating the surreptitious surveillance system. As s. 162(7)(b) states, and the Supreme Court has reiterated in Katigbak, the purpose of the defendant is irrelevant.

[471] Purpose Irrelevant

I should say that even if the purpose were relevant, I would find that, while there was some evidence of purpose – in the evidence of the defendant that he was told by his daughter that she had been told by the complainant's daughter that the complainant assaulted his son in the bedroom; and in the evidence of the defendant's son that he told his father that the complainant assaulted her son "almost every day" – the Crown has proven beyond a reasonable doubt that that was not the reason the defendant set up the surveillance system in the bedroom and basement.

[472] Alleged Assaults

As I have already indicated, the Crown has proven beyond a reasonable doubt that the complainant did not assault her son as a result of his issues with bedwetting. Furthermore, the defendant has testified that he saw the complainant assaulting her children in many places in the house – the hallway, the kitchen, and the landing halfway down the stairs, to cite three – but has not testified that he saw her assault her children in the only two places he set up surreptitious recording devices – the bedroom and the basement.

[473] Implausibility

It is impossible for me to believe that the defendant would not have set up surreptitious cameras where he claimed to have actually seen the complainant mistreat her children if he had, in fact, seen her do so and if that was the reason he set up the cameras where he did.

[474] Conclusion on Purpose

I do not believe that the defendant set up the cameras to catch the complainant mistreating her children. Nor do I have a doubt on this issue, for the reasons I have set out.

[475] Objective Analysis

In any event, once the defendant's purpose is removed from the analysis, as is required, the defendant's argument is reduced to saying that the public good is met, and not exceeded, when one sets up a surreptitious camera in circumstances in which there is a reasonable expectation of privacy and a person can reasonably be expected to be nude, simply because there is a possibility that that person may be committing offences that would be detected if she was surreptitiously surveilled. That cannot be the law. It would authorize surreptitious surveillance in anyone's bedroom or bathroom.

[476] No Public Good Served

In any event, I conclude that there is no evidence that the surreptitious camera did serve the public good. No crime was exposed. All that occurred was that the defendant saw or could have seen the complainant nude or partly nude when she did not know she was being filmed. No public good was served by that.

[477] Continuation Beyond Public Good

Furthermore, even if the public good was initially served by the installation of the surveillance equipment (and I have found that it was not), it ceased to be when, after a reasonable time, no inappropriate behavior was shown on the recordings. The defendant continued using the Samsung recorder to continuously record the bedroom activity whenever he went away until the time of his arrest. I find that it has been established beyond a reasonable doubt that this went well beyond any possible public good which may have been served by surveilling for a reasonable period of time.

[478] Verdict

I find the defendant guilty of Count 6.

(g) Count 7: Voyeurism in the Family Room in the Basement of the Matrimonial Home — December 4, 2013 to December 31, 2014

[479] Admissions

The defendant admits for this count as well that this recording was surreptitious. He also admits that the complainant was, on September 22, 2014 when she was filmed engaging in sexual relations with the defendant, she was in "circumstances that give rise to a reasonable expectation of privacy".

[480] Defence Submissions

He submits, however, that he ought not to be convicted because the Crown has not proven beyond a reasonable doubt either that he had the requisite mens rea – knowledge or recklessness that the camera was recording the activity at the time he was engaged in sexual relations – or that it was in a place in which a person can reasonably be expected to be nude or engaged in explicit sexual activity. He also submits that it was for a public good.

[481] Public Good Defence

The public good issue can be disposed of on the same basis as it was with respect to the surreptitious surveillance in the master bedroom. The defendant's purpose in installing the equipment is irrelevant. No public good was served by the surveillance and recording. The defendant admitted that he saw no inappropriate behaviour by the complainant when he reviewed the tapes.

[482] No Alleged Abuse in Basement

In any event, there is no evidence that the defendant was ever advised by his children that the complainant was assault her children or acting inappropriately in the basement family room.

[483] Continuation Beyond Public Good

Even if the public good was served by a brief period of surveillance (and I find that it was not) it has been established beyond a reasonable doubt that the continued surveillance for a period of a year when no inappropriate behaviour was shown went well beyond any possible public good.

[484] Mens Rea Argument

The defendant submits that "while [the defendant] committed the actus reus in setting up the camera in the first place" he cannot be found to have had the mens rea because the Crown has not proven that he remembered that the camera was recording when he engaged in sexual activity on Sept. 22, 2014. Consequently, the defendant says, the mens rea and the actus reus were not contemporaneous.

[485] Defence Evidence

In support of this submission, he points to his evidence that:

(a) after a while, he forgot the camera was there;

(b) the clips dated Sept. 22, 2014 showing sexual activity comprise only 0.4% of the clips showing activity between September and December 2014;

(c) there was no evidence that the defendant ever reviewed the clips in issue; and

(d) the continuous recording on the days following Sept. 22, 2014 makes it more likely that he did not review them.

[486] Analysis

The short answer to this submission is that it is the result of an inaccurate analysis of the actus reus and mens rea of this offence.

[487] Actus Reus

The actus reus – the prohibited act – is the defendant taking voluntary actions which have the result of creating a visual recording of a person in a place where that person can reasonably be expected to be engaged in explicit sexual activity. That act was commenced on Dec. 4, 2013 when the defendant set up the fake motion sensor camera in the basement. It was complete on Sept. 22, 2014 when the complainant and defendant were recorded. In fact, the recording was not the result of any further act by the defendant – it was simply the result of the act he took on Dec. 4, 2013.

[488] Mens Rea

The mens rea was setting up the fake motion sensor camera with the intention of creating a visual recording of a person in a place where he or she can be reasonably expected to be engaged in explicit sexual activity. "Intention" includes recklessness and wilful blindness. Recklessness refers to the situation where a person knows that his conduct could bring about the prohibited result, but persists despite the risk. (R. v. Sansregret (1985), 1985 CanLII 79 (SCC), 45 C.R. (3d) 193 (S.C.C.))

[489] Knowledge of Risk

The defendant knew that his action of setting up the fake motion sensor camera could create a visual recording of the complainant engaged in explicit sexual activity. He testified that he and the complainant "did not have sex downstairs very often". That can only be an admission that he and the complainant would, at least occasionally, have sex in the family room. Consequently, he knew when he set up the camera that it could create a recording of the complainant engaged in explicit sexual activity, as it did. He proceeded to set it up, knowing at least that there was a risk that that could be the result, and he proceeded. He was reckless. He had the necessary intent.

[490] Credibility

In any event, I do not believe the defendant when he said that he set up the fake motion sensor to "catch" the complainant acting inappropriately toward her children, as I have already explained. Nor am I left with a reasonable doubt on that issue. He testified that he did check the memory card to see what had been recorded, although he got "lax" as time went on. Nevertheless, he did continue to keep the system up and running for almost a year. During that year, he saw no inappropriate actions. His continuing to run it belies his testimony. I do not believe he forgot about it. Nor am I left in a reasonable doubt about his intention. I am satisfied beyond a reasonable doubt that he did this to capture interesting or embarrassing videos of the complainant and the others in his family. I can think of no other reason. Those interesting or embarrassing videos necessarily included the potential of explicit sexual activity, since he and the complainant had sex in the basement at least occasionally.

[491] Video Card Evidence

The relative proportion of the memory card showing events between September and December 2014 which was occupied by the sexual activity shown during the trial is not evidence of anything, given the difficulties with this evidence I have already described. Among other things, many, if not most, of the images are so dark that nothing can be gleaned as to what is going on in the room. No conclusions can be reached about the frequency of sexual activity.

[492] Reasonable Expectation of Privacy

The defendant submits that the basement family room does not fit within the words "a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or breasts, or to be engaged in explicit sexual activity." In support of that submission he relies on R. v. Hamilton, 2009 BCPC 381. In that case, De Coutu J. held at paragraph 29 that

An appropriate approach to the interpretation of the phrase "… can reasonably be expected…" in Section 162(1)(a) is to apply a standard of expectation grounded upon a consideration of all the surrounding circumstances, while also involving an assessment of those circumstances based on common sense and our own everyday life experiences.

[493] Agreement

I agree.

[494] Surrounding Circumstances

The surrounding circumstances go beyond the physical configuration of the room. They necessarily include the use to which the room was put. The family room in the basement of the matrimonial home was used by the defendant and the complainant, from time to time, for sexual activities. One such time was the date that the activity was recorded. The defendant has admitted, as I have explained, that he and the complainant engaged in sexual activity there on other occasions. I find that that room was a place where it could reasonably be expected that a person would be engaged in explicit sexual activity.

[495] Verdict

I find the defendant guilty on count 7.

(h) Count 8: Criminal Harassment

[496] The Relevant Provisions

The relevant provisions of the Criminal Code read:

264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all of the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be …

[497] Mens Rea

The mens rea of this offence requires that the defendant know or be reckless or wilfully blind whether the complainant was harassed. To put it another way, the mens rea of the offence is the intention to engage in the prohibited conduct with the knowledge that the complainant is thereby harassed. (R. v. Sillip, 1997 ABCA 346 at paragraphs 18 and 33)

[498] Recklessness

As I have indicated, recklessness refers to the situation where a person knows that his conduct could bring about the prohibited result, but persists despite the risk.

[499] Surreptitious Setup

The defendant set up the cameras in the bedroom and the family room in the basement surreptitiously. He did not intend the complainant to find them or know they were there.

[500] No Mens Rea

I cannot conclude that he recognized that there was a risk that she may learn they were there. Consequently, he could not have had the necessary mens rea. (Sillip, at paragraph 36)

[501] No Need to Determine Other Elements

I need not consider whether the complainant was harassed, whether she feared for her safety as a result of the defendant's actions, or whether any such fear was reasonable.

[502] Dismissal

Count 8 is dismissed.

(i) Count 9: Voyeurism at the Defendant's Prior Residence Between October 1 and November 30, 2012

[503] The Issue

The defendant says that the only issue with respect to this count is whether the Crown has established beyond a reasonable doubt that the recording was surreptitious – that the complainant was not aware of and did not consent to being videorecorded while they were engaged in sexual activities in the basement family room of the house in which he had lived before moving to the matrimonial home.

[504] Defendant's Claim

The defendant testified that he had shown the complainant, in some detail, how the Samsung DVD player/recorder worked before they both decided to film themselves engaged in sexual activity. This was the same Samsung DVD player/recorder which he set up in the bedroom of the matrimonial home to, as he admitted, surreptitiously record the complainant. He also testified that they discussed filming the sex and the complainant enthusiastically agreed to do so. They then watched the video together.

[505] Complainant's Denial

The complainant denied knowing of or consenting to the filming. She testified that she had no idea she had been recorded engaged in sexual activity until she discovered the video card in July 2015 when doing a final cleaning before moving out of the matrimonial home.

[506] Disbelief in Defendant

I do not believe the defendant. There is one primary reason for this. The defendant testified that he set up the Samsung DVD recorder in the master bedroom of the matrimonial home to surreptitiously record the complainant when he was out of town. I find it impossible to believe that a man with the amount of photographic and computer equipment that the defendant had would use a device with which she was intimately familiar, and which she knew could record activities taking place in front of it, to surreptitiously record the complainant.

[507] Risk Assessment

That would have been running an inordinate risk. The defendant does not strike me as a man who would run such a risk. To the contrary, he could only have attained success in his career by attention to detail and careful planning.

[508] Alternative Device

It would have been very simple for the defendant to obtain another surreptitious recording device to put in the bedroom. I am satisfied that he would have done so if the complainant had known that the Samsung was really a camera.

[509] Demeanor

My inability to accept the defendant's evidence on this point is bolstered by the manner in which he gave his evidence, which I have set out above.

[510] Belief in Complainant

Furthermore, I believe the complainant's evidence on this point and this assists me in disbelieving the defendant's evidence. The intensive cross-examination to which she was exposed did not show any significant inconsistencies or lapses on this issue.

[511] No Reasonable Doubt

Nor, for the same reasons, am I left with a reasonable doubt as to whether the complainant knew of or consented to the filming of her sexual activities with the defendant.

[512] Finding of Guilt

I find that the Crown has proven beyond a reasonable doubt, by the evidence of the complainant, that the defendant surreptitiously recorded him and the complainant engaged in sexual activity in the basement family room of his former residence on October 27, 2012.

[513] Verdict

I find the defendant guilty on Count 9.

Released: January 19, 2018

Signed: Justice P. K. Doody