Court File and Parties

Court File No.: 1311-998-19-191435

Date: November 30, 2020

Ontario Court of Justice

Re: Her Majesty the Queen

And: J.K.

Before: Justice Michael G. March

Counsel:

• Lynn Ross, for the Crown
• Jeffrey Van de Kleut, for the Accused

Heard: February 27, September 9, 10 & October 23, 2020

Reasons for Judgment released: November 30, 2020

Introduction

[1] The accused, J.K., stands charged that between the first day of January 2018 and the 14th day of June 2019, she committed:

a) an assault upon K.K.1 with a weapon, specifically a belt, contrary to section 267(a) of the Criminal Code (the "Code"),

b) an assault upon K.K.2 with a weapon, specifically a belt, contrary to section 267(a) of the Code,

c) an unlawful confinement of K.K.1 contrary to section 279(2) of the Code, and

d) an assault upon K.K.1 contrary to section 266 of the Code.

[2] J.K. is the mother of both K.K.1 and K.K.2.

[3] Her trial commenced on February 27, 2020. It resumed after a long hiatus on September 9 and 10, 2020. The hearing of the evidence and submissions finally concluded on October 23, 2020.

The Relevant Evidence

Alyssa Baldwin

[4] Alyssa Baldwin ("Baldwin") works for the Immediate Response Team of the Highland Shores Children's Aid Society (the "CAS"). She has been with the CAS since April 2008.

[5] Baldwin attended Trent University for her undergraduate studies and is currently working on a Master's degree in Social Work.

[6] On June 6, 2019, Baldwin testified that CAS received a referral regarding J.K.'s two children, K.K.1 and K.K.2.

[7] On June 13, 2019, Baldwin made an arrangement to attend J.K.'s home.

[8] At that time, J.K. was running a daycare out of her residence.

[9] On June 14, 2019, Baldwin, along with her colleague, Angie Connors, visited J.K.'s home.

[10] Baldwin considered it her role to investigate the daycare aspect of J.K.'s household.

[11] Baldwin explained that a Facebook post had been made regarding the daycare and the proprietor's substance use.

[12] Upon arrival, Baldwin and Connors explained the reasons for their attendance.

[13] Baldwin specifically told J.K. about her need to see the home, the list of children J.K. cared for and the schedule of daily routines for the kids.

[14] J.K. expressed her sentiment that the complaint made to CAS about her daycare service was malicious.

[15] Connors proceeded out onto the deck of J.K.'s home with K.K.1.

[16] Baldwin stayed with J.K.. Baldwin noted that J.K.'s residence consisted of two stories. Two bedrooms were upstairs, one with bunkbeds and one which looked as though it was the master bedroom.

[17] Baldwin saw that J.K. had stored prescribed medications for the children in a kitchen cabinet. It was locked. There were also snacks within it.

[18] Baldwin also observed a chain link lock on the basement door. She asked J.K. about this.

[19] Baldwin notified J.K. that someone had reported that K.K.1 had been locked in the basement, and that he had been hit with a belt.

[20] J.K. immediately denied that this had occurred.

[21] J.K. did respond that if she had heard K.K.1 and K.K.2 fighting, she would snap a belt to warn them to stop.

[22] Baldwin asked J.K. about whether she spanked K.K.1 and K.K.2.

[23] J.K. indicated that she had, but with her hand.

[24] She had swatted them with the flyswatter also in a playful manner.

[25] She added that K.K.1 slept in the basement for a while. He enjoyed his time alone.

[26] However, he did not sleep down there when the weather was cold.

[27] Baldwin went down to see the basement. It was unfinished. The floors were concrete and quite dirty. There was a strong odour of liquids.

[28] She noted as well a double mattress with blankets but no sheets. There was a substantial number of toys beside the bed.

[29] There was no bathroom. The walls were unfinished, and there was a sump pump.

[30] While Baldwin was down in the basement, K.K.1 came down and began playing on the bed with his toys.

[31] Baldwin commented that it was not appropriate for a child to be sleeping in the basement. J.K. agreed. She then added K.K.1 just plays down there.

[32] Baldwin saw no vermin or evidence of them having been in the basement.

[33] On June 18, 2019, Baldwin attended the residence of G.S.

[34] Baldwin also went to the school where K.K.1 and K.K.2 were enrolled. She spoke to both K.K.2 and his teacher. Later, Baldwin spoke to K.K.1.

[35] She described K.K.1 as anxious, fidgeting, looking around and asking questions.

[36] Baldwin believed there was a need for a criminal investigation having interviewed both K.K.2 and K.K.1.

[37] The boys were then brought to the police station to be interviewed. Baldwin explained that CAS does not decide whether criminal charges should be laid.

[38] Thereafter, Baldwin went to J.K.'s home to advise K.K.1 and K.K.2 would be brought to a place of safety.

[39] Baldwin acknowledged that on June 18, 2019, her CAS colleague, Connors, communicated to J.K. that there were no concerns. K.K.1 had made no disclosure to give cause for CAS to act.

[40] Baldwin conceded that there was no chain on the lock to the basement door. However, Baldwin recalled that J.K. told her she once used the lock to keep her daycare kids out of the basement.

[41] J.K. did not tell Baldwin that the lock was ever secured to keep anyone in the basement.

[42] J.K. did speak to Baldwin of a flood which had occurred in the basement. At that point in time however, K.K.1 was not sleeping down there.

[43] Baldwin conceded that the last time J.K. had cared for any of G.S.'s kids was in June 2018.

[44] Baldwin understood that J.K. had been running her daycare service for three years.

[45] At the time of the CAS investigation into her daycare operation, J.K. had five children under her supervision, who would come to her home both before and after school.

[46] To Baldwin's knowledge, following the interviews of J.K.'s clients, none of the parents spoke of any concern they had regarding J.K.'s care for their children.

K.K.1

[47] At the time of testifying on February 27, 2020, K.K.1 was 10 years old, just a few months shy of his 11th birthday.

[48] K.K.1 was no longer living with his mother, J.K.. He was in the care of a foster parent, C.S..

[49] Under an application made by the Crown invoking section 715.1(1) of the Code, the statement given by K.K.1 to police and CAS interviewers on June 18, 2019, which statement was videotaped, was played in open court.

[50] Neither Crown nor defence counsel asked for a voir dire to be held to determine its admissibility.

[51] Later in the trial, I raised the failure to do so with counsel. The consensus reached between them was that I, as trier of fact, could treat only those elements of the statement which were adopted by K.K.1 as admissible evidence in J.K.'s trial.

[52] No issue, rightfully so, was taken by the defence that the video recording of the statement had not been made within a reasonable time after the alleged offences.

[53] In the statement, following a caution given by a female police officer that he must tell the truth, K.K.1 offered that, "All I can say is that my mom spanks me."

[54] In terms of chores he did, K.K.1 related that he would sweep, do the litter box, clean the dog's cage, mop, vacuum, take out the garbage and help clean up the yard.

[55] His mother, J.K., would thank him by allowing him to go into a cupboard and have a snack. However, he was not permitted to help himself to the snacks.

[56] He explained that he craves sugar. He has ADHD and issues with defiance.

[57] He takes medications for those conditions daily in the morning and at night.

[58] K.K.1 said that his medications in the morning are most important because if he does not take them, his day starts off rough. He is not in routine. It can lead to a whole disaster.

[59] He added that his mother on weekends did not give him the medication because his body needed a break from it. On those days, he would stay in his room to draw and colour. Drawing is his favourite thing.

[60] He commented that he is protective of his mother and his younger brother, K.K.2. When asked about who gets in trouble more with their mother, K.K.1 answered that he did.

[61] If K.K.1 and his brother K.K.2 would fight, K.K.2 would stay downstairs, whereas K.K.1 would be sent to his room.

[62] K.K.1 could also get into trouble if his mother found out that he took a snack. Again, he would be sent to his room and would not be allowed to "come down". He would just stay "up there" for a while.

[63] When questioned about what his worst punishment would be, K.K.1 told the interviewers he would be spanked.

[64] He added that his mother did not do it a lot, but if asked by CAS about it, he was to watch what he told them, because they can twist your words.

[65] He reckoned that when he is punished, he needs it.

[66] The following, pivotal exchange then occurred between K.K.1 and the police interviewer:

Police: I only want the truth. And if mom didn't do anything wrong then mom's not in any trouble. But do you think mom did anything wrong?

K.K.1: I don't know.

Police: Okay. Look at me, do you feel safe at home?

K.K.1: Uh . . . I don't know.

Police: Okay. That's a start. Tell me about where you've been sleeping.

K.K.1: Um, I used to sleep downstairs but you know that because you saw [inaudible]. Now I sleep upstairs.

CAS: When did that happen though? When did you start sleeping upstairs?

K.K.1: Uh . . .

Police: Was it after CAS came?

CAS: Was it after I came to your house?

K.K.1: It was before?

CAS: How before?

K.K.1: Like um, when you came the first time, I think I started sleeping up there at Christmas.

Police: So, I haven't been to your house okay, and I'm not going to pretend that I know what it's like down there. I want you to tell me what it's like down there, and what you think of it down there

K.K.1: What?

Police: The basement.

K.K.1: I like it down there because I don't like people near me. I have to sleep and there's a mattress down there, that's where I sleep. I have all my things down there and um . . . My black wildcat used to be down there. And I would wake up and she was sleeping with me and I just left her down there.

Police: Was there ever times that you are down there and didn't want to be down there?

K.K.1: No. Well, I came upstairs because there was a rat or mouse and it's still in the house. I could hear it in the walls.

Police: That's kinda gross. Did that freak ya out at all while you were in the basement?

K.K.1: [inaudible] really not a fan.

Police: No.

K.K.1: And she's like a . . . like a baby cat, baby size but she's one of those cats that stays that size.

Police: It's full-grown, but she looks like a baby.

K.K.1: Yeah.

Police: So, when did you . . . you said there is a rat right?

K.K.1: Or mouse.

Police: Or mouse. So, you haven't seen it?

K.K.1: Oh, I have. I've like went behind the door like three or two times, and it's jumped on my foot. I jumped like 5 feet in the air and then went upstairs

CAS: Was that in the basement?

K.K.1: No. Behind the door to the basement. Because I was getting something.

Police: Tell me about the lock on the door to the basement.

K.K.1: The lock? There is no lock.

Police: You've never been locked in the basement?

K.K.1: No, I haven't and I know someone said that because I heard it and no. I have never been locked down there and I've never been sent down there and not come up for supper. All that stuff . . . none of that stuff is real.

Police: What about going to the bathroom down there?

K.K.1: I did that once but, there is an alarm on the door but that's so mom, so it will wake my mom up and she knows that if I'm down there too long I will take something. And it's for my own good.

Police: Oh, okay.

K.K.1: And it's not a . . . It's an alarm.

Police: In case you get out? Or come up, and try to take something?

K.K.1: Yes.

Police: Like a snack?

K.K.1: Yeah. If I'm down there, in the middle level of the house, for too long, she would know . . . oh he's trying to take something.

Police: So, where's the alarm?

K.K.1: On the door.

Police: Which door?

K.K.1: On the basement door. And now on the door upstairs in our room.

Police: Is there something on the basement door, up near the top of the door?

K.K.1: You mean that golden thing?

CAS: What?

K.K.1: You mean that golden thing?

Police: Golden?

K.K.1: Yeah. The golden thing that goes like that?

CAS: You tell us what's on the door.

K.K.1: That would be the only other thing and that, that was from a long time ago. We don't even know, we can't remember what that was from.

Police: Okay. So you don't know what that's used for?

K.K.1: Yeah. My brother doesn't either.

Police: Okay. Um . . . when . . . so tell me about your routine when you were using the basement as your bedroom. After dinner.

K.K.1: I would sit on the couch and watch some TV and then I'd go upstairs and get my pyjamas on and go down and watch a show or two then go brush my teeth and go down, go to the basement and go to bed.

Police: Um, and while you were in the basement, did you ever have to go to the bathroom?

K.K.1: Yes.

Police: And what did you do when you had to go to the bathroom?

K.K.1: I'd go upstairs.

Police: And was there ever a time that you went to go use the bathroom upstairs and you couldn't get upstairs?

K.K.1: No. Only when the alarm would be on and I would just hold until she would say, "Okay K.K.1, you can come up and go to the bathroom." And I would open the door when the alarm was off.

Police: So, when would she say, "Okay K.K.1, you can come up"?

K.K.1: Sometimes like in the morning, but still like, if I had to go, I would go upstairs and go to the bathroom.

Police: And would that set the alarm off?

K.K.1: Yes.

Police: And when would that happen?

K.K.1: I would [inaudible]

CAS: What would mom do when the alarm went off?

K.K.1: Get up.

CAS: Would she say anything to you?

K.K.1: Sometimes. Uh, when I'm upstairs [inaudible]

CAS: Was there ever a time when you were sick when you slept downstairs.

K.K.1: No.

[67] When the interview turned to the subject of spanking once more, the exchange continued as follows:

Police: So, I was proud of you there a few minutes ago because I know it's hard for you, but you told me that the worst punishment you'd get is that mom would spank you, right?

K.K.1: Yes.

Police: Thank you very much for telling me because I know it's hard. Um, what does mom spank you with?

K.K.1: Um . . . sometimes a belt.

Police: Okay, um, again I haven't been to your house. So, can you tell me about that belt?

K.K.1: It's my worst enemy.

Police: It's your worst enemy?

K.K.1: Yeah.

Police: Where is the belt kept?

K.K.1: In her room, hanging where all the other belts are.

Police: What colour is it?

K.K.1: Black.

Police: Black. Okay. How often do you get to see that belt?

K.K.1: [Mumbling, inaudible]

Police: Okay. How often is that belt used on you?

K.K.1: I don't know. I don't think all that often.

Police: Once a week? A month? Once a day?

K.K.1: Once every few months.

Police: So, every once in a while, she uses this belt on you. And when she uses the belt how many times do you get hit?

K.K.1: Um, it's not like [inaudible], it's um. I get hit . . . the most times that she has said that she would slap me was 20, but I have got like 10 once.

Police: And you said that it's nothing compared to when she was a kid? What did she tell you she got when she was a kid?

K.K.1: Well, her dad would say uh, tell her to go upstairs and wait until I'm ready after I cool off, and then I'll come up and spank you.

Police: So, does your mom cool off when she's angry? Or does she do it when she's angry?

K.K.1: Sometimes she cools off and sometimes she does it when she's angry. And I like it when she cools off 'cause when she's angry [inaudible]

CAS: Where does she use the belt on you? Like what part of your body?

K.K.1: The butt.

CAS: Okay. Is it over top of your clothes or on your skin?

K.K.1: Sometimes on my skin and sometimes on my underwear.

Police: Does it leave marks? So, if we were to, and I'm not going to, don't worry I'm not going to pull your pants down. But if someone were to look at your backside, like you're back and your bottom, is there any marks there?

K.K.1: No.

CAS: Has there ever been a time that you worried that there might be marks?

K.K.1: No.

CAS: No.

Police: Have you ever looked?

K.K.1: Yeah.

Police: Yeah? Has your brother looked?

K.K.1: No.

Police: No. You've only looked yourself?

K.K.1: Yes.

Police: Has mom ever looked?

K.K.1: Yeah. She said "K.K.1, show Z.R.."

Police: Who's . . . Z.R. is your sister?

CAS: Why would she want you to show Z.R.?

K.K.1: She'd say "Yeah. I was that pissed off."

CAS: So, she'd be telling Z.R. about using the belt.

K.K.1: Yes.

Police: Because there were marks?

K.K.1: No. There might've been like a tiny one, but that . . . that was from like me, me and K.K.2 fighting.

Police: Or red marks from her doing that, that didn't stay around.

K.K.1: Yeah, but . . . But like there was this one time that I said "hey you left some marks" but I said that to try to get like Z.R. to say "you shouldn't hit him like that. It's mean." But it didn't work.

Police: No?

CAS: What did Z.R. say?

K.K.1: Um . . . like . . .

Police: Does she think you deserve it?

K.K.1: I don't know. I don't think so.

Police: Does mom ever feel bad for it?

K.K.1: Mom?

Police: Um-hm.

K.K.1: Um, I don't know. She never talks about it.

Police: You never have a conversation afterwards where she apologizes or ...

K.K.1: We do. But she doesn't apologize.

CAS: What does she say?

K.K.1: Um, I don't know.

CAS: Okay. Have you ever seen her use the belt on anybody else?

K.K.1: Um . . .

CAS: What about K.K.2?

K.K.1: A few times, but like that was a long time ago. And that was when she was dating J. and that was it.

Police: Do you like it when mom brings guys around?

K.K.1: Yeah. Because when they're new they don't know that she's mean and she has to act nicer. [Inaudible]

CAS: Do you remember the last time mom used the belt?

K.K.1: Um . . . no.

CAS: What was the worst time?

K.K.1: This one time I moved in and she hit me hard right there [pointing to shoulder].

CAS: With the belt? Or with something else?

K.K.1: With the belt.

Police: Which part of the belt?

K.K.1: On the side where there is not nothing there.

Police: Does the middle part ever hit you?

K.K.1: No.

[68] In concluding the interview, the officer asked, "When is the time that you felt most loved?" K.K.1 responded, "I don't know."

[69] Shortly after, the CAS worker asked about whether K.K.1 had ever felt scared for his brother. He did. He explained that he felt the way he did because "I prefer her getting mad at me, not at him".

[70] When asked at trial about his recollection of having given his videotaped statement to the authorities, he acknowledged he did.

[71] However, he qualified what he told police and CAS while testifying. He stated that some aspects of the statement were true, while others were not.

[72] He went on to say that he did not get the belt infrequently. He would get it most of the time, usually on the weekend.

[73] In the mornings, he would wake up. His mother, J.K., would stay in bed. He would try to come up from the basement. He slept there a lot in all seasons.

[74] He described the basement floor as being made of "pavement". Underneath his bed there was "wood and more wood".

[75] There was a mattress, a "ginormous" pillow, a blanket and me.

[76] He acknowledged that there were times when he wanted to sleep in the basement. He had his book, his stuffies and his dinky cars.

[77] On occasion, rats and mice did come.

[78] To access his clothing, K.K.1 would have to go up to K.K.2's room.

[79] K.K.1 recalled a time when there was a lock on the basement door. However, his mother started using alarms instead. Something happened to the lock, but he did not know what.

[80] There were times when he would try to get out of the basement. He recounted that some days, on weekends, K.K.2 and his mom would stay in bed. Finally, they would let him come up at 7 o'clock at night.

[81] He described his experiences as being unpleasant. He would be very hungry. He did not get a lot of food. His mom would get mad if she heard him going to the fridge.

[82] K.K.1 testified that there were times he slept in a bunkbed upstairs, but " . . . a lot of the times I was in the basement".

[83] By contrast, K.K.1 related that K.K.2 could go get food. K.K.2 always slept with their mother. If he was hungry, he could go downstairs and get anything.

[84] K.K.1 admitted that he took food when his mother, J.K., did not know.

[85] To prevent this, she started putting locks on the cupboard doors.

[86] K.K.1 lamented that K.K.2 did not help him. He did not bring him any food. He got along with their mother.

[87] K.K.1 confirmed that he was forced to urinate near the sump pump in the basement. He also recalled occasions, in his bed or beside it in the basement, when he became sick and vomited.

[88] Overall, he did not feel safe in his mother's home. She spanked him. She gave him hot sauce by his estimation 5 to 7 times. It would burn his lips. He would cry.

[89] She put soap in his mouth approximately 7 times.

[90] On occasion, she would hit him with a flyswatter and her hand.

[91] K.K.1 confirmed that his mother, J.K., had a lock on the basement door, but something happened to it.

[92] When it was locked, he could not get out of the basement. He would cry. He would try to look under the door. Sometimes he could see his cat, the loveseat and the chair. He would bang on the door, but he would not be let out.

[93] K.K.1 reasoned that his description of his mother's use of the belt on him being his worst enemy was sarcasm.

[94] According to K.K.1, when J.K. resorted to the belt, usually she would hit him 5 times with it. On a few occasions, she left marks. They were purplish in colour and roughly 2 inches in size.

[95] K.K.1 could not remember what he did that resulted in a spanking on the occasion where his sister, Z.R., was shown the marks left by his mother.

[96] K.K.1 confirmed that his mom told him a lot of things. She instructed him to refuse to talk to any of the CAS workers. The first time he met Baldwin at his school, he told her he did not want to talk to her.

[97] A few days earlier, K.K.1 explained, his mother had told him not to say anything.

[98] When asked to identify a photograph of a large, dirty mess of discarded, empty candy and snack wrappers found underneath his bed, K.K.1 explained the picture was taken on his mother's telephone.

[99] His mother would show it to random people. He would feel bad when she did.

[100] Upon closer inspection of the photograph, K.K.1 was able to identify the wooden skids upon which his mattress sat, an inflatable bed, a giant pillow, a blanket, a toy monster truck, a toy wooden shotgun, and a yellow water gun.

[101] K.K.1 remembered awakening to flooding one morning in the basement. There was water everywhere. He had to do parcours in order to make his way upstairs.

[102] He added that there were lots of other times when there was water in the basement.

[103] K.K.1 recalled a woman named G.S., who was a friend of his mother's. He acknowledged that he took something from G.S.'s boyfriend, C.. He got in trouble for having done so.

[104] K.K.1 reckoned that G.S. and C. stopped trusting him for a while, but he earned back their confidence.

[105] K.K.1 could not recall when he took something belonging to C..

[106] He agreed that he stole and he lied.

[107] He acknowledged that he was angry with his mother. Five weeks prior to giving his 'in court' testimony, he stopped attending access visits with her at CAS.

[108] However, he maintained that at various times including during the winter he stayed down in the basement and slept. He did so over the course of a few years.

[109] Periodically, he liked being in the basement. For example, he wanted to get away from K.K.2.

[110] K.K.1 emphasized however, that on one occasion, he had to go down to the basement even though the power was out.

[111] He was unable to pinpoint the time over which there would have been a lock on the basement door, but he did remember when there once was.

[112] He denied that he was upset at his mother, J.K., because she let K.K.2 go live at their maternal grandmother's place. K.K.1 asserted that he was happy living with his foster mother.

[113] When challenged about ever being given hot sauce by his mother, he was adamant he had been.

[114] He rejected any suggestion that he had not been locked in the basement.

[115] He recalled he had still spent time in the basement after the flood that had occurred around Christmas time.

[116] He could not remember any occasion arguing with his mother about wanting to go to the basement, but being refused permission.

[117] When shown again the photo of the mess of wrappers in the basement, he conceded that he did not know when the picture had been taken.

[118] K.K.1 vehemently denied that he stole toys from his brother, K.K.2.

[119] He agreed that his mother's friend, G.S., was angry with him after he stole her partner, C.'s watch.

K.K.2

[120] J.K.'s younger son, K.K.2, was nine years old when he testified on September 9, 2020. He was two weeks shy of his 10th birthday.

[121] Like his brother K.K.1, K.K.2 gave a videotaped statement to police and CAS on June 18, 2019.

[122] Similar to K.K.1's evidence, both Crown and defence counsel agreed that I could treat only those portions of K.K.2's statement which he adopted as evidence in J.K.'s trial.

[123] Having watched his videotaped statement played in court, K.K.2 was reluctant to adopt any aspect of it. He testified that there were "a lot of things" in it, which were not true.

[124] He specifically denied that his mother, J.K., ever used a belt on either K.K.1 or him. If he said she did, which he knew he had having watched his videotaped statement, it was a lie.

[125] K.K.2 attributed the reason for his dishonesty as fear. He was scared. He did not know what to say to the authorities.

[126] He did not know why he was scared. However, he did observe, quite aptly, that he did not know what was going to happen to him.

[127] He re-emphasized in his 'in court' testimony that he was not lying now. He was never hit with a belt. It never happened.

[128] Although he told the authorities that K.K.1 was locked in the basement, that was not true either. There was never a lock on the basement door. That was a lie as well.

[129] K.K.2 confirmed that there was an alarm on his brother's and his bedroom door, because K.K.1 stole and lied. His mother, J.K., could watch over them if the alarm went off.

[130] K.K.2 listed the things which K.K.1 stole as candy, food, mom's jewelry and more food than anything.

[131] K.K.2 explained that K.K.1 got up at night to steal.

[132] He recounted that when K.K.1 was confronted about his larcenous ways, his mother already knew his brother was lying.

[133] K.K.2 clarified that his mother meted out punishment for misbehaviour by sending his brother or him to their room for 10 or 20 minutes at most.

[134] When he gave his evidence, K.K.2 was living with his maternal grandmother. He denied that his mother, J.K., put him up to changing his story in testifying as he did at her trial.

G.S.

[135] G.S. indicated that she became friends with J.K., she thought, in about November 2017. G.S. conceded that she was bad with dates.

[136] J.K. helped G.S. after her house burned down. J.K. was initially kind to G.S. in providing to her whatever assistance she could offer.

[137] However, G.S. remembered an incident one Christmas where her daughter, M., was sleeping over at J.K.'s residence.

[138] According to G.S., J.K. stepped out for a moment to go to a local bar.

[139] M. called her mother because she was trying to figure out how to open J.K.'s basement door.

[140] G.S. attended at J.K.'s residence to assist. M. answered the front door. After G.S. entered, she saw a lock on the basement door roughly 5 ½ feet up from the floor. She was able to gauge its height by her own.

[141] The basement door by this point was already open. G.S. was able to smell a musty odour emanating from below.

[142] G.S. then waited until J.K. returned home.

[143] G.S. gave evidence that she had been in J.K.'s basement several times. It was full of garbage. It was where K.K.1's bed was located.

[144] G.S. maintained that she was a frequent visitor at J.K.'s residence. J.K. babysat her children in the morning. Consequently, G.S. and J.K. met and spoke virtually every day.

[145] G.S. at the time was employed as a school bus driver.

[146] From G.S.'s observations, K.K.1 slept in the basement, while K.K.2 slept upstairs.

[147] G.S. confirmed that K.K.1 had stolen her son's toys, her partner's watch, a lighter and change.

[148] She witnessed four specific occasions where J.K. physically disciplined K.K.1.

[149] Firstly, G.S. watched K.K.1 put his hands out while J.K. smacked them with a belt. G.S. noted that K.K.1 took it. He did not flinch. He was then sent to his room in the basement. She observed that his hands were red.

[150] Secondly, G.S. saw J.K. bend K.K.1 over a green loveseat. J.K. had her hand placed on K.K.1's neck. She used a black belt with a gold loop. She had made K.K.1 go to retrieve it. She hit him with it on the bum more times than G.S. could count.

[151] Thirdly, G.S. remembered attending a barbecue at J.K.'s home. K.K.1 was " . . . being a kid." J.K. threw a water bottle at K.K.1 and struck him in the face. K.K.1 cried. J.K. told him to go to his room. G.S. observed a mark on K.K.1's face the next day.

[152] Fourthly, G.S. observed J.K. smack K.K.1 upside his face. K.K.1 had scratch marks from J.K.'s nails. G.S.'s fiancé objected to what J.K. had done to K.K.1.

[153] G.S. concluded that K.K.2 got a lot more love from J.K. than K.K.1 ever did.

[154] K.K.1 referred to G.S. on occasion as "Auntie".

[155] G.S. recalled an instance where she observed the door to the basement locked. She could hear K.K.1 asking to be let out. She did not feel able herself to let him out.

[156] On other occasions, G.S. heard J.K. call K.K.1 "a little fucker" and "a cocksucker".

[157] G.S. never witnessed J.K. strike K.K.2 with a belt.

[158] G.S. is a regular marijuana user. She smokes 4 to 5 g per day. She has done so since she was 14 or 15 years of age.

[159] She agreed that J.K. and she fell out. Apparently, J.K., G.S.'s partner and some unnamed individual engaged in a menage a trois. According to G.S., J.K. then posted a photo of G.S.'s partner's genitals all over social media.

[160] G.S. maintained however that her Facebook posts denigrating J.K. was motivated out of a desire to warn the parents of the children she babysat.

[161] On one occasion when G.S. picked up her children from J.K.'s home, G.S. observed what she believed was cocaine dripping out of J.K.'s nose.

[162] G.S. testified that she was the recipient of threats from J.K. thereafter. J.K. called her work 97 times trying to get her fired.

[163] G.S. also found a note suggesting she should keep her mouth shut.

C.S.

[164] C.S. has been a foster parent associated with CAS for 15 years.

[165] Over that period, more than 20 children have been placed in her care.

[166] K.K.1 and K.K.2 came under her supervision in June 2019.

[167] C.S. remembered that at that point, K.K.1 was taking a prescribed medicine, Risperidone. She believed that the medication was prescribed for angry outbursts. While living with C.S., K.K.1's dosage for Risperidone was reduced.

[168] Both K.K.1 and K.K.2 were rambunctious boys according to C.S.. They were always at each other.

[169] She noticed that both would flinch if she served them bread or toast with peanut butter on a spatula, for example. However, she could not think of a specific incident which she could describe more particularly.

[170] While in C.S.' care neither K.K.1 nor K.K.2 had any problem with hoarding or stealing food.

[171] In April 2020, C.S. seemed to recall that CAS placed K.K.1 with his biological father.

J.K.

[172] J.K. gave a fully cautioned statement to the police on June 24, 2019. The defence did not contest its voluntariness. It was admitted as part of the Crown's case.

[173] In the statement, J.K. denied that there was a lock on the basement door of her home. She corrected the investigating officer, and pointed out that it was in fact an alarm.

[174] The alarm was required to prevent K.K.1 from overeating snacks, getting sick and vomiting.

[175] There was an old lock left on the basement door by the previous tenants; however, its chain had been removed.

[176] Later, when the officer suggested K.K.1's bedroom was in the basement, J.K. indicated that K.K.1 had not slept down there for months. Whenever he did, he chose to. Typically, this would be when his brother, K.K.2, was having behavioural problems.

[177] J.K. explained that both her sons have mental issues. According to J.K., both her sons were now begging to come home, having been apprehended days earlier.

[178] She told police that K.K.1 has a problem with lying, stealing and manipulating others. She shared with the officer that a pediatric psychiatrist described K.K.1 as having no conscience.

[179] She related that K.K.1 concocted a story that one of his foster mothers beat him and ripped his pyjamas. His account was later found to be untrue.

[180] She maintained that he does not sleep downstairs in the basement.

[181] She labelled G.S. as a drug dealer, who should not be caring for her three children.

[182] J.K. added that G.S. has never seen her use a belt to punish her children.

[183] G.S. and J.K. were on bad terms with one another having once been friends. G.S. was now prohibited from coming to J.K.'s residence.

[184] Ironically, according to J.K., it was G.S. who believed J.K. should phone CAS and have K.K.1 taken away, because G.S. did not know how J.K. could deal with him every day.

[185] J.K. suggested that G.S. was fabricating allegations against her out of malice. J.K. described G.S. as bitter, mean, hurtful and hateful.

[186] J.K. placed G.S.'s call to CAS as having been made on or about June 6, 2019. That was when the trouble between them started.

[187] When it was suggested to J.K. that K.K.1 and K.K.2 had each other's backs, J.K. retorted that they fight constantly and hate each other.

[188] J.K. asserted that she "documents" every episode of worrisome behaviours exhibited by her sons. Her records would include times when they hit her, as well as K.K.1 falsely accusing that she had hit him.

[189] She claimed to have videos of her children raging and throwing stuff at her head, as they called her every name in the book. All the while, J.K. maintained her composure.

[190] She kept these records because her children were "high maintenance", and she feared that something untoward could happen to her as a result.

[191] J.K. did her research on ADHD. She worked with professionals to try to help her children. She lived 24-7 to assist them. She was always available for phone calls from the school in the event that their behaviours got out of hand, so that she could go pick them up.

[192] She doubted that CAS and police had questioned her children in a proper manner to permit police to lay criminal charges against her.

[193] The charges, J.K. added, were now preventing her from being around children, which were her life and her livelihood. She had built up her daycare business over the course of three years and now her reputation was ruined.

[194] J.K. proclaimed that she was the last person in the world that would harm a child.

[195] She testified that she had a very close relationship with Mr. B.R., the school principal. She suggested to the investigating officer that if he were to speak to the principal, he would confirm that he has never seen a mark on her children.

[196] J.K. denied categorically that she ever told K.K.1 not to talk to CAS.

[197] She related that on one occasion, K.K.1 was hit by a belt. He was taking it out of his baseball pants and flinging it around. It was made of material. She took it out of his hand and gave him a tap on the bum with it.

[198] She claimed that she did not even own a big, thick, black belt. Rather, she only had a skinny, black, child's one.

[199] J.K. encouraged K.K.1 to speak with community policing officer, Constable Osmond.

[200] She emphatically stated that she had never placed a hand on any child. To discipline her children, she sent them to their rooms.

[201] She wondered how if she were a child abuser, she would be willing to put herself in such a close contact with medical professionals, school officials and police.

[202] She denied that she raged or got mad at K.K.1 and K.K.2. She could simply expel her breath loudly, and the children would know presumably that they were receiving a warning.

[203] She did relate to the officer that K.K.1 called the upstairs bedroom with the bunkbeds his brother's room. She reassured K.K.1 that it was his room too.

[204] To whom the room belonged was still the subject of arguments between her sons with K.K.2 insisting at times that it was his room. However, in J.K.'s view, it was both theirs.

[205] J.K. confirmed that K.K.1 did spend the summer of 2018 sleeping in the basement. She clarified that he did not spend every night down there.

[206] Occasionally, K.K.1 had friends stay over. They would sleep in the basement with him.

[207] When J.K. testified in court on September 10, 2020, she was 46 years of age. Her son, K.K.1, had just turned 11. K.K.2 was within weeks of his 9th birthday.

[208] J.K. recalled as well that both her boys were apprehended by CAS on June 19, 2019.

[209] It was not until Christmas 2019 that K.K.2 moved to his maternal grandmother's house and out of foster care. K.K.1 went to live with his biological father in April 2020.

[210] J.K. explained that she had supervised visits with both of her sons at the CAS offices; however, her access to K.K.1 ended in the early part of January 2020. As she described it, K.K.1 had a meltdown before her trial began on February 27, 2020.

[211] To her, K.K.1 appeared bothered and distraught at the time of her access visit at the CAS offices in January 2020. He accused her of sitting outside his father's home in a blue truck. He then began to panic and act out.

[212] J.K. had not seen K.K.1 since he gave his evidence on the first day of her trial on February 27, 2020.

[213] CAS provided no reason to J.K. for stopping her supervised access. Of course, shortly thereafter, the Covid 19 lockdowns began too.

[214] J.K. openly admitted her past, problematic drug use. She attributed it to becoming involved with bad people.

[215] She estimated that it was 15 years ago that she went to jail as a result. K.K.1 was then apprehended by CAS. Eventually, he became a crown ward following a family court trial.

[216] K.K.1 was very young when this happened.

[217] He went back into J.K.'s care following two failed attempts by CAS to have him adopted.

[218] J.K. described K.K.1 as a "beautiful, bright boy". However, he has been diagnosed with ADHD, ODD, extreme anxiety and dyslexia.

[219] She sought out support for her son from pediatric psychiatrists and occupational therapists at school.

[220] She described K.K.1 as a boy who requires sensory breaks for self-regulation.

[221] She recognized that K.K.1 was on a high dosage of Ritalin. She was very concerned that an 80 mg dosage of Ritalin for a boy who only weighed 55 pounds was too high.

[222] She supported his doctors' change of medication and the switch to Concerta.

[223] In characterizing her other son, K.K.2, she stated he was very "hands on". By this, she meant he was combative with other kids at school.

[224] J.K. ensured that both boys had professional support at school.

[225] She reflected back that K.K.2 was apprehended at birth. This was at a time when J.K. was continuing to struggle with drug dependency.

[226] In describing K.K.1's personality, J.K. testified that he was a worker bee, active and inquisitive.

[227] He would sweep the floor, vacuum and garden - collecting tree limbs.

[228] On the other hand, K.K.2 was more relaxed. He wanted to play his videogames.

[229] J.K. asserted that she loved both her boys the same. It was no different for her girls.

[230] However, when she gave K.K.1 an inch, he took a mile. He would lash out at her if she let him go too far. He would hit her and swear at her. He would steal and lie.

[231] She said that K.K.1 could be like a bomb going off. It was hard for her to calm him.

[232] She would make attempts at having him self-regulate. She wanted him to take a break and get a book.

[233] She tried "time outs" with him.

[234] Later, she would do "time ins". She and his teachers employed a chart where green signified K.K.1 was doing well. Yellow was a caution. Red meant that K.K.1 needed to stop, but it was very hard to get him to recognize this.

[235] At school, K.K.1 needed breaks. He would go to the sensory room.

[236] Not infrequently, the school would call J.K.. It could be as a result of the boys' behaviour, or perhaps simply the need to replenish their medications. Both of her sons, she testified, adored their principal, Mr. B.R..

[237] J.K. reckoned that Mr. B.R. and she spoke almost daily. Their plan was to maintain consistency for the boys at home and at school.

[238] Further, she estimated that she chatted with the boys' teachers roughly a couple of times a week.

[239] In describing how K.K.1 and K.K.2 got along, J.K. explained that one minute the boys would be hugging and kissing, but with a snap of the fingers, they would be at each other's throats.

[240] J.K. testified that she had run a successful daycare for 4 years. Her clientele was mostly composed of special needs children.

[241] Her business was unlicensed by the provincial government. However, it was a going concern. It ran in the mornings between 6 AM to 8:45 AM Monday to Friday, and in the afternoons between 3:45 PM and 6 or 6:30 PM.

[242] When school was out during the summer, she had some of her clients' children in her care the entire workday.

[243] On average, she had three children, not her own, under her supervision during the summer.

[244] At the time of her sons' apprehension by CAS in June 2019, J.K. gave evidence that she was cleared following inspections by two of its workers. In a report dated June 19, 2019, J.K. was able to produce a document indicating that she was in compliance with the Child Care and Early Years Act 2014.

[245] J.K. added that prior to June 2019, she had never received a complaint regarding the operation of her daycare.

[246] She offered as well that she was an active volunteer in her son's school in Batawa, Ontario. She held the position as fundraising chair on the school's executive committee. She was also a baseball coach and involved in the children's skating and karate.

[247] J.K. described herself as a full-time, engaged and active parent to her sons, K.K.1 and K.K.2.

[248] Three of them as a family unit were busy Monday through Saturday. Sunday was their family time. Often, they would stay in pajamas all day.

[249] In recalling the manner in which her sons were apprehended, J.K. testified that she spoke to two CAS workers, Connors and Baldwin, on June 14, 2019. They told her about allegations regarding the use of a belt and cocaine dripping from her nose.

[250] J.K. was obligated to give to CAS a list of the names of her daycare kids and their ages. No consideration was given to J.K. to allow her to contact the children's parents to apprise them of what was occurring with CAS.

[251] Although Connors had texted J.K. on June 18, 2019 to say that her investigation concluded her sons were safe, Connors was off sick that day. She promised she would update J.K. as soon as she could regarding the pending CAS investigation. Connors had not attended a scheduled meeting the previous day with her supervisor at CAS to decide upon a course of action.

[252] Later that day (June 18, 2019), J.K.'s sons, K.K.1 and K.K.2, did not get off the school bus as normally they would. K.K.1 and K.K.2 were apprehended at school.

[253] Additionally, J.K.'s daycare was shut down the following day.

[254] J.K. explained that in the past, she cared for two of G.S.'s children, M. 9, and L. 6. Her son, B.1 3, G.S. would take with her while working as a school bus driver.

[255] J.K. recalled that G.S. and she had a falling out because J.K. refused to falsify rent receipts. G.S.'s partner, B.1's father, had moved in for a while with J.K..

[256] On another occasion, J.K. found G.S. smoking marijuana in her driveway. J.K. did not want the parents of the children she cared for to see this.

[257] Overall, J.K. denied that G.S. spent any real time inside her home. J.K. estimated that on average, G.S. would drop by a couple of times a month, but would remain at the front door or just inside it.

[258] To J.K.'s recollection, G.S. had never been in her basement.

[259] J.K. maintained that G.S. simply did not have an opportunity to observe her with her kids.

[260] Occasionally, J.K. would ask G.S. to drive her into town for groceries. However, when J.K. did so, her children were at school.

[261] J.K. ventured that G.S.'s children were constantly at J.K.'s residence because G.S. was not properly caring for them.

[262] J.K. became aware that G.S. on one occasion took her children to Florida. J.K. opined that this was not fair. G.S. was at that time receiving financial assistance through welfare.

[263] J.K. therefore reported what she believed to be a fraud being perpetrated against the government. She further suspected that G.S. found out about the complaint. Since that time, J.K. testified, G.S. began harassing J.K.'s family members.

[264] On June 4, 2019, the situation between J.K. and G.S. was very different. That day, G.S. was texting J.K. to see if she could care for her son, B.1, the coming Monday. G.S. had to go to court.

[265] J.K. denied that she ever babysat G.S.'s children. J.K. emphasized that G.S.'s children do not sleep.

[266] J.K.'s children never slept over at G.S.'s residence.

[267] In reflecting back on G.S.'s evidence regarding the four occasions when G.S. testified she saw J.K. punish her children, J.K. denied firstly that she used a belt on K.K.1 to discipline him, or that she has a green loveseat as described by G.S., where J.K. supposedly had K.K.1 bent over to administer a spanking. However, J.K. did describe having a burgundy and beige couch with green in it. The loveseat is black.

[268] Secondly, J.K. denied that she threw a water bottle at K.K.1. She instead "flipped" the bottle to him. She did not intend to hit K.K.1 with it.

[269] Thirdly, she testified that she has never struck her sons or held them tightly underneath their chins such that it would cause scratches. That did not happen.

[270] Fourthly, J.K. gave evidence that G.S. has never seen her with cocaine dripping from her nose. That incident, about which G.S. testified, did not occur.

[271] J.K. acknowledged that she took photographs of the basement after the flood took place. She dated this event at approximately December 2018 or January 2019.

[272] The purpose of taking the pictures was to show the problems that she was having with K.K.1 getting into sweets, hoarding them and gorging himself. Further, they demonstrated his propensity for stealing and lying.

[273] She added that K.K.1 could eat more than a grown man.

[274] She showed the photos to Mr. B.R., K.K.1's principal at school.

[275] J.K. confirmed that K.K.1 did urinate in the area of the sump pump on one occasion. He had earlier been up and down the basement stairs approximately 15 times setting off the alarm.

[276] As far as an incident involving vomiting in the basement went, it was J.K.'s recollection that K.K.1 had a friend, B.2, sleeping over with him. It was the May 24 weekend.

[277] The fireworks display that both boys were watching caused B.2 to develop a migraine.

[278] Later, K.K.1 described B.2's vomit to J.K. as "only like spit". K.K.1 himself cleaned it up.

[279] The relationship between J.K. and G.S. really soured when J.K. told G.S. that her boyfriend was texting her and telling her she was beautiful.

[280] J.K. categorically denied that she ever had a threesome involving G.S.'s boyfriend. He did send her pictures of his body parts, but J.K. did not reciprocate.

[281] In describing how she would punish her children, J.K. testified that she would simply make them take a timeout. She would on occasion deprive them of the use of their Xbox or tablet. Occasionally, she would impose a "time in". She would thereby give her boys the opportunity to self-regulate.

[282] In recalling the incident where she did use a belt on K.K.1, she remembered that he was attempting to put it through the loops of his baseball pants. He was missing some of them as he went.

[283] The belt buckle flipped up and hit J.K. in the face and mouth area causing her to bleed.

[284] J.K. took the belt and flung it back down in a reflex type motion hitting K.K.1 on the bum.

[285] He did not cry. He did not make a sound. J.K. checked and there was no mark on K.K.1.

[286] J.K. apologized to him. She asked if he was okay.

[287] J.K. asserted that there was no black belt in her bedroom that she would require the children to retrieve for disciplining them. She also denied instances where she would put hot sauce or soap in K.K.1's mouth, if he were to use foul language.

[288] The tapping of a flyswatter on her sons' behinds was playful in nature. The most she ever did to K.K.1 or K.K.2 was to "scoot" them on the bum. She described a cupping of her hand, placing it on their bums and moving them along their way.

[289] She denied that she ever struck a child upside the head.

[290] J.K. did remember having an alarm on top of the basement door. There once had been a chain lock on the basement door, but never a chain. She did not remove it herself. The lock was in that state when she moved in.

[291] J.K. never used the lock on the basement door.

[292] J.K. installed the alarm because K.K.1 was up and down the basement stairs so often. He could eat three boxes of granola bars or two boxes of fruit roll ups.

[293] She moved the alarm upstairs to her sons' room where they were sleeping prior to their apprehension by CAS. She explained that the alarm made a beeping sound when the door was opened.

[294] J.K. maintained that K.K.1 chose to go to the basement on occasion to be away from his brother. K.K.1 wanted to be down there.

[295] He liked to sleep in the dark, whereas K.K.2 preferred a nightlight.

[296] J.K. acknowledged that K.K.1 had his books, his stuffies and other toys in the basement, but he was never locked down there.

[297] It had been some six months prior to the flood since K.K.1 had slept in the basement.

[298] In recounting the episode involving the rat, J.K. surmised that it must have climbed up the dishwasher hose. She noticed the cat sitting in front of the cupboard door. It was clamoring a bit.

[299] She was able to swipe open the door and then quickly close it to contain the rat.

[300] Thereafter, she used poison in the basement to solve the rodent problem when K.K.1 was no longer sleeping down there.

[301] When asked to reflect upon when she went to jail, J.K. estimated it was 15 years ago. Her best guess placed it in 2005. It was for a drug-related matter.

[302] Originally, she received a conditional sentence. She breached one or more of the conditions. She ended up serving the balance in jail.

[303] It was pointed out to her that it was in 2009 that she was incarcerated. Other convictions followed in 2011, 2012, 2014, 2016 and 2017.

[304] J.K. attributed her inability to remember with clarity the extent of her criminal record to anxiety and depression.

[305] By 2016 as well, J.K. conceded that she had begun operating her unlicensed daycare operation.

[306] J.K. denied that drugs were a problem for her after she was released from jail in or about 2009. She strongly disagreed as well with the suggestion that alcohol was a present issue. She rejected the Crown's assertion that on weekends, she may have had to sleep off the effects of overdrinking.

[307] J.K. accepted no responsibility for any note left for G.S. dissuading her from coming to court for J.K.'s trial. To the contrary, J.K. testified that it was G.S. who kept going by her residence. J.K. contacted the police about this.

[308] J.K. agreed that she could not be exactly sure when her basement flooded. She pointed out that her daughter now has her bedroom down there.

[309] J.K. confirmed that it had to be extensively cleaned and dried out.

[310] When K.K.1 had his sleepover down there with B.2, she believed this to have been May 2019. Again, she was not certain if K.K.1's bed was there at that time.

[311] As far as being physical with her boys went, J.K. testified that there were only ever "scoots" on the bum. Otherwise, there were occasions where she had to defend herself from their aggression.

[312] J.K. conceded that there were times when her stepfather used corporeal punishment on her.

[313] She acknowledged that K.K.1 and K.K.2 argued and fought. However, she denied that she used a belt to punish them if they did. Nor did she snap a belt in warning to them.

[314] She disagreed that she told Baldwin she had, but she could not recall for sure.

[315] J.K. could not remember showing her daughter Z.R. any type of mark she left on K.K.1 as a result of her use of the belt upon him. If she did invite Z.R. to look, it was only because she knew there was no mark on K.K.1.

[316] When asked about how many summers K.K.1 would have chosen to sleep in the basement, J.K. could not recall. It could have been two or three.

[317] Typically, the cutoff date for allowing K.K.1 to sleep in the basement was October. However, he did ask to sleep down there, but in winter, not as often.

[318] J.K. disagreed with the suggestion that the basement was an inappropriate place for a child ever to sleep.

[319] She added that it was after the flood that she saw the state of her basement deteriorate. Nevertheless, there were still blankets, other bedding, and toys down there when Baldwin attended J.K.'s home.

[320] J.K. agreed that she was very apologetic to G.S. when she discovered that K.K.1 had taken her partner's watch.

[321] The following text exchange ensued between G.S. and J.K. as a result:

J.K.: Well I just found it, under K.K.1's bed, along with other things.

G.S.: That Zipper [Zippo] was from my house too.

J.K.: I figured that… I'm so sorry G.S., I don't know what the fuck to do with him anymore!

G.S.: I feel for you man, because you've tried every avenue.

J.K.: Nope, I wouldn't be… I've come a long way just since leaving J., but I never get a rest with K.K.1, always got to be on high alert, and even then, he's robbing everyone blind!

G.S.: About the only two things left we can't find in the house if [is] my two rings in [and] my vaporizer s if you ever come across …

J.K.: Ty [Thank you], I really am sick of it! I can't even stand to look at him anymore! I've never felt like that about a child, ever! And it's emotionally draining and embarrassing for me to have to deal with it constantly! And of course, I told D., and his response is… He can help…ummm noooo he can't ffs [for fuck's sake], we have all tried! [3:27 p.m., Apr. 30]

[322] J.K. could not pinpoint in which year exactly the text exchange occurred. She knew that G.S. and she had their falling out in June 2019. It must have occurred before then.

[323] J.K. agreed that she clearly found the watch under K.K.1's bed. She was adamant however that he did not sleep down in the basement after the flood. He did play down there still.

[324] J.K. conceded that K.K.1 constantly referred to the basement as his bedroom. K.K.2 referred to it as K.K.1's room as well.

[325] J.K. maintained nevertheless that K.K.2 and K.K.1 slept upstairs.

[326] She would let K.K.1 sleep in the basement occasionally. This was usually when K.K.1 chose not to sleep in the same bedroom as his brother.

[327] She vehemently denied that she kept K.K.1 down there because of his behavioural challenges or as a form of punishment.

[328] J.K. proclaimed that she loved K.K.1 like K.K.2. She fought to get K.K.1 back.

[329] She could not stand to look at K.K.1 when he was lying to her.

[330] J.K. confirmed that K.K.2 would come into her bedroom to see her. K.K.1 would too to sleep and to snuggle, but K.K.1 would get up and get into stuff.

[331] J.K. denied that K.K.1 was prevented from going to the bathroom whenever he was in the basement.

[332] She agreed that there were drinks, wrappers and toys in the photograph she took depicting what was found underneath K.K.1's bed.

[333] She was able to discern from the picture two cats on what appeared to be a heart-shaped Valentine's box; but she explained that she has stuff like that from a couple of years ago.

[334] J.K. maintained that she was not sure if K.K.1 stole food every day. She confirmed that he was provided with a chocolate covered granola bar to take to bed and water. He did crave sweets.

[335] She denied that she took him off medication to give his body a break without permission from his doctors to do so.

[336] J.K. explained that when K.K.1 first came home to her, she was not sure if he would wander in the middle of the night. He had been away from her for many years.

[337] Her basis for believing that K.K.1 did not have a conscience was discussions she had with his pediatric psychiatrist. She understood that it would get worse as he got older.

[338] J.K. agreed that when she gave her statement to police in June 2019, she did not explain that when she hit K.K.1 with the belt, it was an accident.

[339] Nor at that moment did she recall being struck in the mouth with the belt. She could not remember her exact words to police, but she conceded that she did not describe her actions as reflex.

B.R.

[340] B.R., when he testified on September 10, 2020, was a principal at a Catholic School in Belleville. Prior thereto, he had been the principal at a Catholic School in Batawa from March 2015 to December 2019.

[341] As principal, he knew both K.K.1 and K.K.2 well.

[342] B.R. described K.K.1 as a quiet and reserved boy, who sought out positive relationships wherever possible.

[343] However, K.K.1 did have a problem with stealing. He took books, boxes and artifacts. B.R. offered as an example how K.K.1 once stole a knife carved out of an antler. When he brought it back to school, it was broken.

[344] On one occasion, B.R.'s iPad went missing for two weeks. Given K.K.1's tendencies, B.R. asked J.K. about it.

[345] Ultimately, when B.R. found the iPad, he apologized to K.K.1.

[346] K.K.2 had his issues too. He was more impulsive, violent and aggressive with the other children and teachers.

[347] He could pick up a chair or some other item and throw it at someone. Occasionally, he would have to be put into some form of containment such as the sensory room to allow him to calm down.

[348] B.R. explained that he spent a lot of time with K.K.2 to the point that K.K.2 would say, "I love you, Mr. B.R.".

[349] B.R. indicated that he did become aware of J.K.'s criminal charges and CAS involvement at some point in time. Neither of her children had reported to him anything untoward having happened to them.

[350] B.R. confirmed that he took his duty to report such matters to the authorities very seriously.

[351] He communicated with J.K. almost daily. He would call her to suggest she may want to meet her sons at the bus, for example. He commented that she would always respond positively.

[352] B.R. would also tell the boys they would have to report to their mother the problems they were having on any bad days they had.

[353] Both boys were supported at school with Intensive Educational Plans and Behavioural Support Plans due to their special needs.

R.M.

[354] When R.M. testified on September 10, 2020, she was 16 years of age.

[355] R.M. is J.K.'s next-door neighbour. R.M. babysat roughly once a month for J.K. over the past three or four years.

[356] She was familiar with the layout of J.K.'s house. R.M. was aware there was a basement. The door down to it appeared normal to her. There was a latch type lock, but no chain. She had never seen a chain on it.

[357] In R.M.'s view, the lock appeared to be left the way it was as a "decoration".

[358] R.M. observed that J.K. was very good to her kids.

[359] K.K.1 and K.K.2 were always happy and smiling. For the most part they were easy to care for. At times however, they could become more difficult.

[360] R.M. was aware of J.K.'s criminal charges. R.M. testified that she never saw J.K. use a belt on the boys. Indeed, R.M. never saw them hit by J.K. at all.

[361] At no point did R.M. ever see a lock on the basement door of J.K.'s house.

[362] R.M. agreed that she did not see how J.K. cared for her children all the time.

[363] R.M. confirmed that during the time she was able to witness the interaction between J.K. and her children, it appeared as though J.K. was taking good care of them.

[364] R.M. became aware of J.K.'s charges by way of some form of contact made by J.K.'s lawyer.

[365] R.M. testified that she did not discuss any of the details of J.K.'s charges with her.

Z.R.

[366] Z.R. was 23 years of age when she gave her evidence on September 10, 2020.

[367] At that time, she was living with her mother, J.K..

[368] Z.R. moved back in with J.K. a couple of months prior to testifying.

[369] From 2018 to 2019, Z.R. did not live with her mother, but she visited often, almost every weekend.

[370] She described her siblings, K.K.1 and K.K.2, as being "unique". They had their "quirks".

[371] They were very well behaved, she thought, considering their diagnoses.

[372] K.K.1, she described, as being quiet for the most part. She added that he did like to be outside.

[373] Indeed, she thought that K.K.1 and K.K.2 both were "pretty quiet kids".

[374] That is not to say that Z.R. had not seen her brothers misbehave. When they did, her mother, J.K., imposed a timeout.

[375] Z.R. assessed her mother as being always quite calm with the boys. J.K. never imposed any physical discipline.

[376] There were never any marks that Z.R. saw on K.K.1. She looked up his shirt. There were none there.

[377] On many occasions, Z.R. was alone with both K.K.1 and K.K.2. She would take them for walks. She would play with them in their rooms. There was never any disclosure during those times about anything untoward having happened to them at the hands of their mother.

[378] Z.R. was never aware of a lock being on the basement door of her mother's home. The only thing Z.R. saw was an alarm at the top of its frame.

[379] At the time of testifying, Z.R. was being supported by her mother, J.K.. Z.R. was offering horseback riding lessons. Her income was modest.

[380] She maintained that her mother, J.K., never raised her voice with her children. Rather, J.K. would use a firm voice.

[381] Z.R. never saw J.K. lay a hand on either K.K.1 or K.K.2. Nor was Z.R. physically disciplined as a child by J.K..

[382] Z.R. was never the recipient of a "scoot". Nor was she spanked.

[383] She added that she never observed her sister being physically disciplined either.

[384] Z.R. was aware that K.K.1 had slept for a short period of time in the basement of their mother's home.

[385] Z.R. acknowledged that K.K.1 called the basement his room. He had a mattress and box spring on wooden pallets down there.

[386] She conceded as well that K.K.2 called the room with the bunkbeds his.

[387] She clarified that K.K.1's room, the basement, is like his own space and his own time.

[388] She went down there and played with him.

[389] She currently sleeps down there.

[390] She asserted that what K.K.1 was saying about being hit with a belt was not true.

[391] Z.R. knew of the rule J.K. made for K.K.1 about not talking to CAS. Z.R. had the same rule when she was younger.

G.D.

[392] G.D. is J.K.'s mother.

[393] On October 23, 2020, K.K.2 was living with G.D.. He had been since January 2020.

[394] G.D. testified that between January 2018 and June 2019 she had little, if any, contact with her daughter, J.K..

[395] At that point in time, G.D. and J.K. were not getting along. G.D. attributed this to J.K.'s dislike for her husband.

[396] G.D. and J.K. reconnected in June 2019 after J.K. was criminally charged.

[397] G.D. had access to J.K.'s children, K.K.1 and K.K.2, every weekend after the charges were laid.

[398] G.D. also saw them whenever her daughter, J.K., was attending supervised access sessions at the CAS office.

[399] G.D. bemoaned the fact that she had not seen K.K.1 since he had been placed with his father in March or April 2020.

[400] She dismissed any suggestion that she discussed with her grandsons, K.K.1 and K.K.2, the details of their mother's charges.

[401] G.D. claimed that she had been a guest over the years at J.K.'s home. While there, she never saw a lock on the basement door.

[402] G.D. did, however, see the remnants of an old "chain thing" on the door. However, it did not have any "fixings" on it.

[403] She confirmed that when K.K.2 testified on September 9, 2020, he was living with her.

[404] She denied that her daughter, J.K., pointed out the lock on her basement door to her on any of the photos that had been taken of it over the years, and shared over Facebook during special occasions such as birthdays.

[405] G.D. denied that she was ever asked by J.K. to say anything specific during her trial.

[406] G.D. maintained that she did see some pictures of J.K.'s basement door. However, she denied that she ever knew that a lock, or the absence of a lock, was an issue at her daughter's trial.

[407] G.D. was aware that there was an alarm on the basement door. However, that was the extent of her knowledge.

[408] She testified that she never discussed her daughter's charges with her.

[409] G.D. knew that she was not to speak to K.K.1 or K.K.2 about them.

[410] G.D. knew about her daughter's prior history with CAS.

[411] However, G.D. was also aware of how hard her daughter worked to get to where she is today.

Issues

[412] As with so many criminal trials, credibility and reliability have emerged as the primary issues for determination in assessing the witnesses' evidence. Their motives for testifying, although secondary, are of significant importance as well.

[413] Plainly, this is a case which calls for the application of the principles established in R. v. W.D.

[414] If I believe the evidence of J.K., I must acquit.

[415] Even if I do not believe the evidence of J.K., but I am left in reasonable doubt by it, I must acquit.

[416] Further, even if I am not left in reasonable doubt by the evidence of J.K., on the basis of the evidence which I do accept, has the Crown proven J.K.'s guilt beyond a reasonable doubt?

The Law

The Fundamental Principles

[417] In R. v. Ghomeshi, 2016 ONCJ 155, Horkins J. posited the cornerstones for all criminal trials held in Canada as follows:

[120] The fundamental framework of analysis in a criminal trial is often left significantly abbreviated in judge alone trials. In this case, however, it is important to state this framework clearly. It plays the central role in the determination of this matter.

The Presumption of Innocence

[121] The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. It is essential to understand that this presumption of innocence is not a favour or charity extended to the accused in this particular case. To be presumed innocent until proven guilty by the evidence presented in a court of law, is the fundamental right of every person accused of criminal conduct.

Proof Beyond Reasonable Doubt

[122] Interwoven with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case the Crown must establish each essential element of the charge against the accused to a point of "proof beyond reasonable doubt". This standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[123] The law recognizes a spectrum of degrees of proof. The police lay charges on the basis of "reasonable grounds to believe" that an offence has been committed. Prosecutions only proceed to trial if the case meets the Crown's screening standard of there being "a reasonable prospect of conviction". In civil litigation, a plaintiff need only establish their case on a "balance of probabilities". However to support a conviction in a criminal case, the strength of evidence must go much farther and establish the Crown's case to a point of proof beyond a reasonable doubt. This is not a standard of absolute or scientific certainty, but it is a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charge.

[124] The expression proof "beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:

• The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

• A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

• Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

• On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

• In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

I instruct myself accordingly.

[418] Close heed must always be paid to these basic tenets of our criminal justice system.

Section 715.1 of the Code

[419] Section 715.1(1) reads as follows:

In any proceeding against an accused in which a victim or other witness was under the age of 18 years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

[420] At para. 54 of R. v. F. (C.C.), Cory J. for a unanimous panel of the Supreme Court of Canada held:

Wherever evidence is tendered for admission under s. 715.1 of the Code, a formal voir dire must be held to determine whether the requirements of the section are met and to ensure that the videotape conforms with the rules of evidence.

[421] Cory J. earlier explained at paras. 40 and 44:

(40) In light of the clear aim and purpose of s. 715.1, I cannot accept the Ontario Court of Appeal position that the same meaning of adoption should be used in the context of the videotaped statements of a child as was applied to prior inconsistent statements. Adoption is not a term with a static legal meaning which must apply in all circumstances. The strict adoption test for prior inconsistent statements was necessary to ensure a reasonable degree of reliability before allowing the statements to be admitted for the truth of their contents. However, s. 715.1 has built‑in guarantees of trustworthiness and reliability which eliminate the need for such a stringent requirement for adoption. Further, a lack of present memory or an inability to provide testimony at trial regarding the events referred to in the videotape as a result of the youthfulness and the emotional state of the complainant increases the need to consider the videotaped statement.

(44) …There are several factors present in s. 715.1 which provide the requisite reliability of the videotaped statement. They include: (a) the requirement that the statement be made within a reasonable time; (b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (c) the requirement that the child attest that she was attempting to be truthful at the time that the statement was made. As well, the child can be cross‑examined at trial as to whether he or she was actually being truthful when the statement was made. These indicia provide enough guarantees of reliability to compensate for the inability to cross‑examine as to the forgotten events. Moreover, where the complainant has no independent memory of the events there is an obvious necessity for the videotaped evidence. In Meddoui, it was recommended that in such circumstances, the trier of fact should be given a special warning (similar to the one given in Vetrovec v. The Queen, [1982] 1 S.C.R. 811) of the dangers of convicting based on the videotape alone. In my view, this was sage advice that should be followed.

[422] Cory J. addressed at paras. 45 through 47 inclusive how to treat any inconsistencies between the videotaped evidence of a child and his or her evidence-in-chief as follows:

(45) The test of adoption should not be the final determination of reliability but rather a means of ascertaining whether the videotape meets the threshold degree of reliability required to admit it for the truth of its contents. The adoption of the videotape renders the evidence admissible pursuant to s. 715.1. Once the trial judge rules that the statement has been adopted, the video becomes the evidence of the events described as if the child were giving the statements on the videotape in open court (L. (D.O.), supra, at p. 458). An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence‑in‑chief of the complainant.

(46) After the videotaped evidence has been admitted, any questions which arise concerning the circumstances in which the video was made, the veracity of the witness' statements, or the overall reliability of the evidence, will be matters for the trier of fact to consider in determining how much weight the videotaped statement should be given (my emphasis).

(47) If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously a contradicted videotape may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross‑examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial…

[423] In my view, it matters little that the inconsistency between the video recorded account of a witness and their viva voce evidence is elicited during examination-in-chief or cross-examination. The truth finding function of the court remains the same. One must look to:

a) whether the inconsistencies are major or minor,

b) what explanation is offered for them by the witness, if any, and

c) what basis, if any, there is for the witness to change his or her evidence from what initially he or she said during the videotaped statement to what he or she later testified is the real or whole truth in court.

Assessing the Credibility of Child Witnesses

[424] As I approach my analysis of the evidence of K.K.1, I must remind myself as well of the dicta of Lamer C.J.C., as he then was, at paragraph 47 in R. v. L.(D.O.), [1993] 4 S.C.R.:

"In the case at hand, in the determination of what is fair, one must bear in mind the rights and the capabilities of children. As McLachlin J. recognized in R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133: "... it may be wrong to apply adult tests for credibility to the evidence of children". Wilson J. expressed a similar view in R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-55, in reference to the appeal judge's treatment of the child witness' evidence:

. . . it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.

[425] Further, as observed by Juriansz, J.A. in R. v. J.J.B. [2013] ONCA 268 at para. 70, I must take account of the following:

"[70] Courts have long recognized the increased difficulty in assessing the credibility of children as compared to adults. As the Supreme Court of Canada explained in R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 54, although a child's testimony must not be subject to a lower standard of proof than an adult's:

[A] flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult…While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

Reliability of Child Witnesses' Evidence

[426] Similar to the assessment of credibility, I must disabuse myself of any notion of the inherent unreliability of a child witness's evidence. As McLachlin J. stated, as she then was, at para. 23 in R. v. W(R), [1992] 2 S.C.R. 122:

"23 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So, if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error."

[427] In R. v. W.H., 2013 SCC 22, Cromwell J. speaking for a unanimous panel of the Supreme Court of Canada offered the following guidance to Courts of Appeal across our country on how to approach an argument of unreasonable verdict where a jury has assessed the credibility of the witnesses called at trial. Cromwell J. wrote at para. 33:

(33) …There are a number of points in François that are particularly relevant to this case:

1. It is for the jury to decide, notwithstanding difficulties with a witness's evidence, how much, if any, of the testimony it accepts. As McLachlin J. put it, at p. 836:

More problematic is a challenge to credibility based on the witness's alleged lack of truthfulness and sincerity, the problem posed in this appeal. The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because of inconsistencies in the witness's stories at different times, because certain facts may have been suggested to her, or because she may have had reason to concoct her accusations. In the end, the jury must decide whether, despite such factors, it believes the witness's story, in whole or in part.

2. Credibility assessment does not depend solely on objective considerations such as inconsistencies or motives for concoction. As McLachlin J. said in François, at pp. 836-37:

[Credibility] turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motives for concoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the common sense of the jury, which cannot be assessed by the court of appeal. The latter domain is the "advantage" possessed by the trier of fact, be it judge or jury, which the court of appeal does not possess and which the court of appeal must bear in mind in deciding whether the verdict is unreasonable: R. v. W. (R.), supra. [Emphasis added.]

3. The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct. Particularly where the complainant offers an explanation for inconsistencies, the jury may reasonably conclude that those inconsistencies lose "their power to raise a reasonable doubt with respect to the accused's guilt": François, at p. 839. Again in François, at p. 837, the Court said this:

In considering the reasonableness of the jury's verdict, the court of appeal must also keep in mind the fact that the jury may reasonably and lawfully deal with inconsistencies and motive to concoct, in a variety of ways. The jury may reject the witness's evidence in its entirety. Or the jury may accept the witness's explanations for the apparent inconsistencies and the witness's denial that her testimony was provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness's evidence while rejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of the evidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that the jury's verdict is unreasonable. A verdict of guilty based on such evidence may very well be both reasonable and lawful. [Emphasis added.]

4. To sum up, the reviewing court must be deferential to the collective good judgment and common sense of the jury. As stated in François, "the court of appeal reviewing for unreasonableness must keep in mind . . . that the jury may bring to the difficult business of determining where the truth lies special qualities which appellate courts may not share": p. 837.

[428] Of course, J.K.'s trial was conducted by judge alone. I must nevertheless follow the principles enumerated by Cromwell J. in W.H. as J.K.'s trier of fact in like fashion. Just as the principles in W.D., another appeal from a jury's verdict, are routinely followed by trial judges sitting alone, I must be cognizant of the practical approach offered by Cromwell J. in my treatment of inconsistencies and possible motives to concoct.

[429] Firstly, I will decide what evidence, if any, I accept from each witness heard in this trial, and assess it as a whole.

[430] Secondly, my assessment of each witness's credibility will not depend solely on considerations such as inconsistencies or motives for concoction. I will, of course, apply reason and logic throughout.

[431] Thirdly, I am entitled to decide how much weight I give to factors such as inconsistencies and motives to concoct, particularly where the witness provides an explanation for inconsistencies.

[432] Fourthly, I will exercise my best judgement and common sense in attempting to discern the truth.

Analysis

Do I accept the evidence of J.K.?

[433] I do not believe the testimony of J.K. for several reasons.

[434] First, I was struck by how quickly J.K. was prepared to go on the offensive when confronted with the allegations made against her. She labelled K.K.1, a liar, a thief and a manipulator. Further, she called G.S., a drug dealer, bitter, mean, hurtful and hateful.

[435] J.K. did not mince words in describing her ten-year-old son, K.K.1, and a previous, close friend, G.S.. Rather than explain to the police why K.K.1 and G.S. may be less than accurate and honest, her attacks were instantly swift and venomous. Basically, she invited the police to dismiss their accounts as unworthy of any credit because of their bad character. J.K. showed no compassion for her son. She demonstrated only a desire for self-preservation.

[436] Second, I find that J.K.'s desire to "document everything" was an attempt at justifying her use of physical discipline with her sons, should the need ever arise. J.K.'s testimony led me to believe that, long before her arrest, she was accumulating an arsenal to defend against any allegation of abuse of her children.

[437] Third, J.K.'s wish to ally herself with medical professionals, school officials, and even police, came across as the construction of a façade to divert suspicion away from herself. Indeed, she invited the police to contact these individuals, should they doubt her devotion and dedication to her children.

[438] Fourth, I reject J.K.'s claim that she never told K.K.1 that he must not speak to the CAS. I accept to the contrary what K.K.1 attributed to his mother regarding how to handle the CAS. She gave the same advice to Z.R.. I find J.K. told K.K.1, "they [CAS] can twist your words". To my mind, K.K.1 was a child parroting exactly what a parent or trusted adult would have told him. His videotaped statement to police followed his mother's edict to a large degree.

[439] Fifth, in testifying about her criminal record while giving her evidence-in-chief, J.K. painted herself as though she had one prior brush with the criminal justice system at a time when she was in the throes of drug addiction. In cross-examination, it became clear that she amassed five further entries on her record following her original drug conviction. I disbelieve her supposed inability to recall the extent of her criminal record to be attributable to her anxiety and depression.

[440] J.K. sought to project herself as a full-time, engaged and active parent. To do so was necessary. She was interested in maintaining her livelihood. Her clientele were the parents of "high needs" children. To eke out a living for herself, J.K. needed to don the cloak of a patient and loving mother. At times, she was nothing of the sort to K.K.1.

[441] Sixth, I do not believe J.K.'s claim that G.S. was never in her basement, and only came to her front door. Clearly, these two women had a friendship, so much so that, for a period of time, G.S.'s partner lived with J.K.. J.K. and G.S. texted one another to seek each other's help. G.S. took J.K. to get her groceries. G.S. attended at J.K.'s residence for a barbecue. J.K. knew that G.S. took her children to Florida. Their relationship went well beyond the bounds of a strictly formal, business type.

[442] G.S. had the opportunity to observe in private J.K.'s treatment of her sons, K.K.1 and K.K.2. J.K. attempted quite unsuccessfully to downplay G.S.'s acquaintance with how J.K. dealt with them.

[443] I accept G.S.'s evidence that she saw J.K. smack K.K.1's hands, as well as administer a spanking to K.K.1 with a black belt. J.K. bent him over a piece of furniture with her hand on his neck. Whether it was a loveseat or a couch, green or black in colour, matters little. I believe what G.S. said she saw J.K. do to K.K.1.

[444] Further, I accept the testimony of G.S. that she witnessed J.K. throw a bottle at K.K.1 which struck him in the face. I find that J.K. was once again attempting to downplay the incident by stating that she flipped it at him and hit him accidentally.

[445] I believe the evidence of G.S. that she saw J.K. on several occasions smack K.K.1 upside his face or grab his chin tightly, such that J.K. scratched him with her nails. I make such a finding even though K.K.1 did not specifically confirm that the grabbing of his chin occurred. K.K.1 gave viva voce evidence that his mother, on occasion, spanked him and struck him upside the head. It happened "a lot" and "mostly on the weekend". His evidence was not vague on the subject. K.K.1 chose words I would expect a 10 year old boy to use in describing its frequency and when it occurred.

[446] It is, of course, unnecessary for me to determine whether G.S. saw J.K. with cocaine dripping from her nose. Whether J.K. used cocaine or not is irrelevant to the determination of whether I am satisfied beyond a reasonable doubt that she is guilty of any of the offences for which the Crown seeks a conviction. Suffice to say, I fully accept that both J.K. and G.S. were ready and willing to cast each other in the worst light possible. I am not, however, inclined to disbelieve what G.S. said about the four incidents she specifically recalled because of any animus she held for J.K..

[447] Seventh, I question J.K.'s evidence regarding why she took the picture of the mess she found underneath K.K.1's bed in the basement. It did not show he lied and hoarded, as she contended. I find rather that the photo was taken to embarrass K.K.1 and to demonstrate to others her reason for keeping him away from the refrigerator and the snack cupboard.

[448] In the end, the photo served as undeniable proof that the child's room was in the basement, that he hoarded food, and that he was living down there in squalid and filthy conditions.

[449] Eighth, I disbelieve J.K.'s evidence that the only time she used a belt on K.K.1 was out of reflex. I find instead that K.K.1 was playing with his belt by flinging it about. He did strike his mother with it. J.K.'s reaction was out of frustration. She struck him back with it in anger. She did worry that it left a mark. She did ask her daughter, Z.R., to see if it had. Whether it did or not matters not.

[450] Ninth, I do not accept J.K.'s evidence that she did not have a black belt, and that K.K.1's baseball belt was made of material. I believe Baldwin's evidence that J.K. told her she would snap a belt to warn the children. A belt made of material would be highly unlikely to make a snapping sound. Of course, G.S.'s evidence confirmed what K.K.1 said about being spanked with a belt.

[451] Lastly, and perhaps most importantly, I disbelieve J.K.'s testimony that she did not have a lock on her basement door. J.K. told Baldwin she had a lock to keep her daycare kids from getting into the basement. She had a daycare as a going concern for a period of three years or more before it was shut down. This undisputed fact dovetails with K.K.1's evidence that there was a lock, but then it was gone. It makes sense what he says that it was replaced with an alarm.

[452] J.K. would still be able to monitor the movements of, and the potential danger to her daycare kids, should they access the basement stairs. Furthermore, J.K. would know that K.K.1, while sleeping down in the basement, and having to go to the bathroom at night for example, could let himself up to the main or upper floors. The need to confine K.K.1 to prevent him from wandering, or from getting into the snack cupboard or refrigerator, was removed.

[453] I believe K.K.1's evidence when he testified that there was a lock, but then it was gone. It makes sense what he says about it being replaced with an alarm. J.K. would still be able to monitor his movements at night.

Even if I do not accept the evidence of J.K., am I left in reasonable doubt by it?

[454] As stated above, for numerous reasons, I do not believe the testimony of J.K.. It therefore cannot raise a reasonable doubt in my mind as to her guilt.

On the basis of the evidence which I do accept, am I satisfied beyond a reasonable doubt of J.K.'s guilt?

[455] I must note that I was struck by K.K.1's evidence. His initial desire was to protect his mother, J.K., and his brother, K.K.2.

[456] When K.K.1 spoke to police and the CAS in giving his videotaped statement, he was a frightened, little boy.

[457] Much of his young life was spent in foster care. He proved to be unadoptable, likely due to his behavioural issues. Finally, he was back living with his mother. As grim as it may have been for him at times, he was home.

[458] He struggled to answer questions put to him by the authorities. He knew what he told them could place his mother, J.K., in jeopardy. K.K.2 and she were his family.

[459] Any inconsistency between the statement he gave to police and his evidence-in-chief at trial, I attribute to his best efforts to respect his mother's instruction not to speak to the CAS. He was worried at that time about what would happen to her, if he told the truth.

[460] Sadly, when asked by police about when he felt most loved, he responded, "I don't know."

[461] I accept K.K.1's evidence that he slept in the basement a lot during all times of the year. There was a lock on the door. On occasion, he would try to get out, but he couldn't.

[462] I find his evidence credible that he was forced to urinate in the sump pump. Further, I believe him when he says he got sick in his bed in the basement or beside it.

[463] When locked down there, he would cry. He would try to look under the door. He could see the loveseat and chair, and sometimes the cat. Some of the photographic exhibits filed at the trial depict the space underneath the basement door, which would appear to allow one to see what was happening on the main floor level.

[464] I believe K.K.1 in spite of his admission that he stole and he lied. He was a problem child. He has ADHD and ODD. His mother, based on discussion she had with a pediatric psychiatrist, believes he has no conscience.

[465] When confronted with suggestions that he was untruthful in testifying that he was locked in the basement, he was adamant that he was being honest. He was not evasive. He was completely believable on the point. Equally, he did not retreat from his evidence-in-chief that he was struck by his mother with a belt.

[466] I do not know how often K.K.1 was locked in the basement, nor how often he got the belt. Nor does K.K.1.

[467] Based on my assessment of the totality of the evidence, I find that K.K.1 was at times locked in the basement. I also find that he was struck with the belt frequently. No one knows this more painfully than K.K.1.

[468] My confidence in my findings is not shaken by his brother K.K.2's failure to adopt his video recorded statement.

[469] K.K.2's only explanation for the inconsistency between what he told the police and CAS interviewers, and what he said in open court, was that he was scared when he gave his statement. He did not elaborate why.

[470] I can infer from the testimony he gave at trial that his evidence was fueled by a burning desire to move home with his mother, J.K..

[471] When K.K.1 and K.K.2 were under the care of C.S. as their foster mother, she observed sporadically flinching behaviours on the part of the boys. I do not read much into this.

[472] What I do accept from C.S.' evidence is that when K.K.1 lived with her, he exhibited no peculiarity by hoarding his food. Clearly, he did not need to worry about being hungry at some future point in time.

[473] I accept the evidence given by the boys' school principal, B.R., that he was close to them. B.R. was also very close to their mother, J.K., as well. B.R. and J.K. spoke with one another almost daily.

[474] I believe that B.R. took his duty to report to the appropriate authorities anything he believed to be happening to the boys, which may constitute abuse or neglect. B.R. did not do so because he had no such concerns.

[475] At the same time, given the closeness of B.R.'s relationship to J.K., I can certainly appreciate the boys' reluctance ever to disclose any form of abuse or neglect by their mother to their principal. To K.K.1 and K.K.2, there can be little doubt that B.R. and J.K. were seemingly on the same team.

[476] I accept that the boys' babysitter, R.M., saw no lock on the basement door. Nor would I expect her to look with any interest to see if there was one.

[477] It would be highly unlikely that R.M.'s duties would require her to go to the basement.

[478] R.M. was, of course, not around all the time to see how J.K. interacted with her sons. Similar to what K.K.1 testified was his mother's habit when there was a new boyfriend around, J.K. could pretend not to be mean. I can infer that J.K. would be on her best behaviour around R.M. for the same reason. J.K. needed R.M. to babysit when J.K. needed a break or a night out.

[479] J.K. was, no doubt, capable of projecting the image of being an engaged, involved, caring and loving parent.

[480] J.K.'s daughter and the boys' sister, Z.R., was not an independent witness. When she testified, she was back living with her mother. She was financially dependent on J.K..

[481] At the same time, I am not inclined to dismiss Z.R.'s evidence, simply for its lack of independence, as being incredible or unreliable. Indeed, I found her to be genuine in her attempts to explain and recount her interaction with her younger brothers.

[482] Z.R. recalled an incident where her mother asked her to look on K.K.1's body for marks. I have no reason to reject her evidence that she saw nothing on K.K.1's body when she looked up his shirt. At that point in time, I accept Z.R.'s evidence that she saw nothing.

[483] Nor do I know how close Z.R. was to her brothers, nor what influence she was expected realistically to wield over her mother, even before she moved back home. Z.R. is in her early 20s. J.K. is in her mid-40s.

[484] Logically, I can draw no inference that, because Z.R. did not see her mother lay a hand on her brothers, nor remember any incident where her mother laid a hand on her or her sister, J.K. must not therefore have laid a hand on her sons either. It does not follow.

[485] J.K.'s mother, G.D., was not a frequent guest at her daughter's home over the period of January 2018 to June 2019 when J.K. was alleged to have committed the offences with which she was charged.

[486] J.K. and G.D. were estranged. J.K. did not like G.D.'s partner at that time.

[487] Nevertheless, G.D. claimed that she noticed there was no lock on the basement door of J.K.'s home when she had been there on prior occasions for visits.

[488] I cannot accept G.D.'s contention that she did not know that the presence or absence of a lock on the basement door was an issue at J.K.'s trial.

[489] It makes no sense at all that G.D. would take note of whether there was a lock or an alarm on the basement door. Someone must have drawn that issue to her attention prior to her giving her evidence at trial.

[490] Yet G.D. maintained she did not discuss with her daughter, J.K., the nature of her outstanding charges. I do not believe G.D.'s evidence on this point. A lock or an alarm on the basement door would be completely insignificant to an objective observer, unless some context for it to be noticed can be given by G.D.. That evidence was lacking.

[491] I cannot believe G.D.'s testimony that as a casual guest in her daughter's home, she was aware that the basement door was equipped with an alarm, not a lock. This makes no sense at all.

Conclusion

[492] I do not agree that K.K.1's evidence lacked particularity and context, as argued by J.K.'s counsel. It was replete with detail as best it could be provided by a 10 year old boy. He slept down in the basement voluntarily. There can be no doubt he did so frequently. But on occasion, he did not. And why? Because his mother prevented him from coming upstairs from his bedroom whenever he wanted.

[493] K.K.1 was a difficult boy to parent. However, he certainly did not deserve to be treated the way his mother dealt with him. He should never have been confined in the basement. The door allowing him to come up should never have been equipped with either a lock or an alarm.

[494] I am convinced beyond a reasonable doubt that J.K. locked K.K.1 in the basement. She later modified her ability to restrict his movements by replacing the lock with an alarm. She felt it was necessary to monitor his conduct. He was hyperactive. He was difficult to control at times. I have no doubt that he was a handful, but he never deserved to be locked in a basement. Nor should he have ever been struck with a belt as a form of discipline.

[495] I have no doubt about J.K.'s guilt in respect of her charges involving K.K.1.

[496] I believe K.K.1.

[497] On Count 1, J.K. is guilty of assaulting K.K.1 with a belt.

[498] On Count 2, the Crown invited me not to find J.K. guilty of assaulting K.K.2 with a belt. I will make such a finding. K.K.2 did not adopt his videotaped statement given to police and CAS. Accordingly, I must acquit J.K. on this particular count.

[499] On Count 3, J.K. is guilty of confining K.K.1 without lawful authority for having locked him in her basement.

[500] On Count 4, J.K. is guilty of assaulting K.K.1 for slapping his head and squeezing his chin to the point it left scratches.

DATED: November 30, 2020

_______________________________

March, M.G., J.