Court File and Parties

Court File No.: 998 09 01675 Date: 29 March 2012

Ontario Court of Justice

(Central East Region)

Between:

Her Majesty The Queen

Mr. T. Vandenende, for the Crown

- and -

David Lawson

Mr. N. Singh, for the Defendant

Heard: 11 August 2011 & 13 February 2012

De Filippis, J

Decision

[1] The defendant faces three charges with respect to the complainant, Terri Dawn Craig, all of which are said to have occurred at the City of Orillia in 2008; (1) assault between May 1 and September 30; (2) assault on September 29; and (3) attempted choking to enable him to commit sexual assault between July 1 and 31. I heard from the complainant and defendant. I dismiss all charges. These are my reasons.

Facts

[2] These facts are not in dispute: The defendant is 50 years old and currently employed as a carpenter. He has three adult daughters from a previous relationship. The complainant is of similar age and has been employed for many years in the courts for the Central East Region. The parties met almost 20 years ago and lived in a common law relationship for 16 years. They have a son together; he was born in 2000. The defendant left the home at the insistence of the complainant and they subsequently became involved in family and criminal proceedings. The relevant chronology is as follows: The offences are said to have occurred between May and September 2008. The parties physically separated in October 2008. The complainant had custody of their son and the defendant enjoyed access. This was an informal arrangement and both parties wanted custody. In April 2009, the defendant called the Children's Aid Society (CAS) to report a bruise he observed on his son while having access to him. The next day, the complainant brought an ex parte motion in the family court for a restraining order. In November, the complainant reported the criminal allegations and the defendant was arrested. In September 2010, the parties signed final minutes of settlement in the family proceedings, granting custody to the complainant and access to the defendant.

[3] The complainant testified that by June 2008 she wanted out of the relationship with the defendant. She explained that they had been having problems for the preceding two years and she could no longer put up with his drinking and temper. She added that the defendant worked little during this time. The complainant told the defendant to leave but he stayed for a few months as he had no place to go and few resources. He was gone by October. The offences are said to have occurred during this difficult time.

Complainant's Evidence

[4] According to the complainant, in July 2008, the defendant had been drinking in the sunroom of their home – she added that he "usually passed out there" – and came into her bedroom. He called her a "slut", "bitch", and "party girl" as he laid on top of her. He put one hand on her throat while fondling her breast and vagina with the other. The complainant said she was choked for five to ten seconds and had trouble breathing when the defendant squeezed her "Adam's apple" between his thumb and finger. The complainant struggled and kicked at the defendant and she fell off the bed. She stood up and went to her son's bedroom. She slept there with him, with cordless phone in hand in case, she testified, "he returned to come after me". The complainant said that when she confronted the defendant the next day, he apologized and said he had no memory of the matter because when he drinks he forgets what he does.

[5] On September 29, about two months later, the parties argued on the occasion of the son's birthday. According to the complainant, the defendant was upset because she invited her family to the party. She said the defendant does not like her family and retreated to the basement where he drank alone. After the party was over and the guests had departed, he emerged from the basement and angrily called her family "assholes" while pointing his finger towards her face. When the complainant smacked his hand away, the defendant pushed her in the chest with both hands causing her to hit the back of her head on a wall.

[6] The complainant did not report these incidents at the time. However, in April of the following year, she obtained the ex parte restraining order against the defendant and seven months later she brought the current allegations to the attention of the police. The complainant rejected the suggestion that she initiated these criminal charges to advance her position in the family proceedings. She said she did so because, notwithstanding the restraining order, the defendant kept calling members of her family and had threatened one of them. During this time the parties were "fighting over custody and access" to their son. She also explained her delay in reporting the allegations by stating she did not want to be the subject of workplace gossip. The complainant's application for a restraining order was brought one day after the defendant had called the CAS. Although the application is based upon a concern for safety none of the current criminal allegations are mentioned in the application for a restraining order.

[7] The complainant provided a videotaped statement to the police about the current allegations in November 2009. At this interview, she alleged that the defendant had grabbed her by the throat and fondled her breast and vagina but said nothing about having her Adam's apple squeezed. Moreover, when the interviewer asked if the defendant had cut off her breathing, she replied that he had not done so. The details about being choked through pressure on the Adam's apple emerged for the first time in trial testimony. She acknowledged that in her experience as a court clerk she saw many family and criminal trials and is aware of the importance of being truthful and accurate in reporting matters to the police.

Defendant's Evidence

[8] The defendant testified that by the summer of 2008, the complainant was aggressive in her demands that he leave the home. He wanted to wait until the house was sold as he had no place to go and believed he was entitled to a 50% share of the proceeds of sale. He said they sometimes argued about these issues in front of their son, causing him to cry. Eventually, he sought the advice of the local police and was told that although the complainant had no right to evict him, he should "get a lawyer and get a room". That is what he did in October. He found a job renovating a cottage and lived there during the week. On weekends he returned to Orillia, often staying in motels, and had access to his son.

[9] On April 13, 2009 while enjoying a weekend with his son, the defendant noticed a mark on his body. He took him to the doctor and then called the CAS. The police later determined the injury to the boy was the result of an accident while playing. However, the day after the CAS referral by the defendant and before the police became involved the complainant initiated family court proceedings with the previously noted restraining order application. As has also been noted, seven months later, the complainant reported the current criminal allegations to the police.

[10] The defendant testified that he promised his son he would fight for custody. He said he gave up that fight, after the criminal charges were laid, on the advice of his counsel. In September 2010, the parties signed final minutes of settlement that awarded custody to the complainant and access to the defendant. The defendant insisted that he never assaulted the complainant and claims the charges were laid to deprive him of the ability to fight for custody of their son.

Legal Analysis

[11] The defendant is presumed to be innocent of the charges. The burden on the Crown to prove guilt beyond a reasonable doubt means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D., 63 C.C.C. (3d) 397. The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D., [2004] O.J. 2086 (O.C.A).

[12] The defendant's belief that the current charges were laid so the complainant could gain advantage in the family proceedings does not mean those allegations have been fabricated. However, his denial of the charges withstood cross-examination and his evidence raises a reasonable doubt about guilt. In any event, I find that the Crown failed to discharge its burden of proof.

[13] A link between family and criminal proceedings is common when a domestic relationship sours. There is nothing inherently significant about this with respect to credibility and reliability. Similarly, delay in reporting abuse is not necessarily noteworthy in such cases as the parties are often focused on moving on with their separate lives. Moreover, absence of corroboration is not, in itself, fatal. However, in this case, these factors, coupled with my observations below mean that I cannot accept the evidence of the complainant beyond a reasonable doubt. In coming to this conclusion, the chronology of events is important: In the months after the defendant left the home, the complainant took no formal action against him until he called the CAS to report a bruise on their son. The complainant immediately responded with an application for a restraining order, citing a concern for safety. Yet that application does not mention anything related to the current criminal allegations even though they are clearly relevant to the claim and remedy asserted in it. Also important, is the material difference between the complainant's statement to the police and her trial testimony with respect to being choked. This is not merely a matter of omission but also one of contradiction. In all these circumstances, it would not be safe to convict.

[14] Whatever may have happened between the parties in the difficult months preceding their separation, it has not been established that he committed the offences in question.

Verdict

[15] The defendant is found not guilty.

Signed: "Justice J. De Filippis"

Released: 29 March 2012