Court File and Parties

Court File No.: Barrie Court File 08-4885

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. B. Bhangu, for the Crown

— And —

James Blackwell

Mr. M. Miller, for the defendant

Hearing Dates

Heard: December 8, 2010; June 13, 2011; December 14, 2011; December 20, 2011; May 29, 2012; July 18, 2012; October 30, 2012

Decision

Harpur J.:

Overview

[1] Mr. Blackwell is charged with assaulting and causing bodily harm to Cheryl Saunders in the early morning hours of December 30, 2007. Mr. Blackwell and Ms. Saunders had been friends for more than two years by that date. Although the issue is not central to the conduct said to constitute the offence, according to Ms. Saunders, friends is all they had been. According to Mr. Blackwell, theirs was a romantic and intimate relationship, with brief estrangements, from shortly after their first meeting in December 2004 until December 2007.

[2] In the evening of December 29, 2007 Mr. Blackwell and Ms. Saunders were at Ms. Saunders's house alone. They drank a substantial amount of wine together, as was their custom. In the early hours of December 30, 2007 there was an altercation between them. Ms. Saunders says Mr. Blackwell suddenly lost control of himself and began breaking bottles and glassware in her home, eventually falling to the floor and crying. She says she began to clean up the mess he had made and that, as she was bent over cleaning, without warning, Mr. Blackwell administered a violent kick to her face breaking her nose. The fact of Ms. Saunders sustaining bodily harm in the form of a broken nose on the night of December 30, 2007 is not disputed.

[3] Mr. Blackwell testified. He said that he did not kick Ms. Saunders and, rather, that it was Ms. Saunders who lost control of herself and leapt at him over a table at which they were seated drinking. He says he suffered a cut lip, bruises and bites from Ms. Saunders's attack. He says he flailed his arms to defend himself and he may have struck her nose as he did so, although he observed no injury to Ms. Saunders's face that night or the following day.

[4] There were no other witnesses to the altercation. The case hinges on credibility. Mr. Blackwell having testified, the methodology described by Cory, J in R. v. W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.) is apt, that is, in the context of the evidence as a whole, do I accept Mr. Blackwell's testimony or am I left in reasonable doubt by it. Having considered all of the evidence at trial, for the reasons which follow, I do not accept Mr. Blackwell's version of the altercation and am not left in doubt when I consider it in conjunction with the other evidence presented at trial. Mr. Blackwell will be found guilty of the offence of assault causing bodily harm.

The Evidence

[5] In reviewing the evidence, I propose to focus on the testimonies of Ms. Saunders and Mr. Blackwell, adverting to the material evidence given by the other witnesses called at trial in relation to those two primary testimonies.

A. Cheryl Saunders

(i) Ms. Saunders's Narrative

[6] The Crown's case depends on the reliability of Ms. Saunders as to the alleged assault. Her essential narrative was the following.

[7] Ms. Saunders is a registered nurse working at the Mental Health Centre in Penetang. She met Mr. Blackwell through Mr. Blackwell's mother, another nurse at the Centre. Ms. Saunders has three children, the oldest of whom is twenty-two. In December of 2007 she lived at 24 Wilcox Road in Waubashene. Mr. Blackwell, the owner of a Co-operators Insurance agency in Barrie, then lived in a trailer home in Orillia. Ms. Saunders and Mr. Blackwell had, by December 2007, spent a good deal of time together, including overnight stays in the same hotel rooms in Quebec, Mexico and a lodge in Algonquin Park, but were simply friends.

[8] Ms. Saunders worked on December 29, 2007 and arrived home around 8:00 p.m.. Mr. Blackwell was already in her home, a frequent occurrence in light of their close friendship. Mr. Blackwell was intoxicated, comical and happy-go-lucky. It appeared to Ms. Saunders that he had consumed four bottles of red wine and was working on a fifth. She began drinking white wine, ultimately consuming what she estimated to be one-half of a one and one-half litre bottle. Mr. Blackwell out-paced her in their drinking.

[9] Ms. Saunders began to remonstrate with Mr. Blackwell about what she considered reckless behaviour on his part. After midnight, she raised with him the subject of an affair he was having with a married woman. Mr. Blackwell then "started to flip out". He started grabbing and throwing whatever was in front of him, namely, empty wine bottles, full or partially full wine bottles, plates and large glass candles. The debris went into Ms. Saunders's kitchen and living room. Mr. Blackwell was yelling and swearing and frightened her. Mr. Blackwell did not, however, touch Ms. Saunders at this stage. Mr. Blackwell then lost his balance, fell backward, landed on a table and rolled onto the linoleum floor among the pieces of broken glass. Ms. Saunders pulled at Mr. Blackwell, rolling him away from the glass, at which point he started "flailing like a little kid would have a tantrum".

[10] Ms. Saunders fetched a broom and a piece of cardboard and started sweeping up, crouched over. She heard Mr. Blackwell rise, saw him to her right side as she was bent over, felt a blow to her nose, heard it "pop", began to bleed from her nose "like a tap" and fell backward onto the floor. Mr. Blackwell then began to strike her on the back with a fist repeatedly after she had rolled to her stomach. She crawled on the floor to her cell phone, tried to dial a neighbour and had the phone kicked from her hand by Mr. Blackwell. Mr. Blackwell attempted to pull her backward by a leg but she broke free, regained her phone and speed-dialled another neighbour, Crown witness Ken Wilcox. Having pushed the button for Mr. Wilcox's number, Ms. Saunders threw the phone to the side to avoid having it kicked away again. She yelled "help" repeatedly. Finally in relation to the alleged assault, Ms. Saunders said that Mr. Blackwell continued all this time to punch her in the back, only stopping when Mr. Wilcox arrived and demanded that Mr. Blackwell go outside Ms. Saunders's home to its deck.

[11] Once Mr. Blackwell was outside, Ms. Saunders got a towel and sheet to try to staunch the flow of blood from her nose. She then began to try to clean up her home. She stopped when Mr. Wilcox suggested she take photographs of the damage. She filmed the house with a video camera, narrating as she went. The film is one of four segments comprising an audio/video disk made Exhibit 1 at trial. In her narration, Ms. Saunders states that Mr. Blackwell kicked her in the face. Subsequently on the disk, she walks onto the deck outside her home, still filming, and speaks to Mr. Blackwell who is out of camera range but can be heard coughing. Ms. Saunders films the bloody sheet and towel and expresses incredulity that that amount of blood could have come from her nose. She calls Mr. Blackwell a bastard and says that if he leaves she will call the police. Ms. Saunders says to Mr. Blackwell "you must be proud" to which Mr. Blackwell responds "I feel proud, I got a busted lip". Ms. Saunders then says "you are lucky that is all you've got" and Mr. Blackwell responds "well, you know what...", before his words become inaudible and the disk segment ends. By my count, Ms. Saunders's filming and commentary outdoors within apparent hearing range of Mr. Blackwell lasts approximately thirty-five seconds before he speaks. I shall comment on the significance of this disk excerpt subsequently in these reasons.

[12] Having taken the film, Ms. Saunders went to Huronia District Hospital in Midland with Mr. Wilcox and was treated for a broken nose, staying at the hospital for one to one and one-half hours and then returning home with Mr. Wilcox. When she returned, Mr. Blackwell was sleeping on a couch inside her home. She said she thinks she and Mr. Wilcox entered her home and saw Mr. Blackwell on the couch and that she went back outside briefly with Mr. Wilcox. He encouraged her to go with him to his home but, instead, Ms. Saunders woke Mr. Blackwell, spoke to him and sent Mr. Wilcox home on his own, telling him she would be alright. She then returned to Mr. Blackwell, showed him the film and told him she had been to the hospital and that her nose was broken. She showed Mr. Blackwell the house and the destruction in it. Mr. Blackwell had no recollection of what he had done or of the video-taping of him following the incident. He seemed shocked. However, he expressed no remorse and, accordingly, Ms. Saunders told him that he was never again to come to her house or have anything to do with her. She decided not to call the police because "he had a lot going on in his life at that time and I just wanted him to go and not come back". Mr. Blackwell did leave and never returned.

(ii) The Proposed Weaknesses in Ms. Saunders's Narrative

a. The relationship with Mr. Blackwell

[13] The eventual defence attacks on the reliability of Ms. Saunders's narrative were several. Prominent among them was an attack on Ms. Saunders's insistence that she and Mr. Blackwell were friends only. Introduced into evidence in the course of Ms. Saunders's cross-examination was a collection of photographs of Ms. Saunders at an Ontario inn, a Mexican resort and a Quebec hotel. Ms. Saunders acknowledged attending all three with Mr. Blackwell, the latter two as part of groups of insurance agents, the first with Mr. Blackwell alone. Several of the Ontario photos show Ms. Saunders clothed in a bed. One shows her in a bathing suit in a hot tub. Ms. Saunders acknowledged that she and Mr. Blackwell shared a hotel room at each of the locations but said that they slept separately. She acknowledged that, at the time of these trips with Mr. Blackwell, she was living with her then-husband. She said that her husband was aware of the trips. Of the Ontario inn and the Mexican resort, she said "We [Mr. Blackwell and I] had a lot of the same interests and my spouse didn't travel at all".

[14] In attacking Ms. Saunders's evidence about the nature of her relationship with Mr. Blackwell, Mr. Miller called Dawn Martin as a defence witness. Ms. Martin is another owner of a Co-Operators Insurance agency in Barrie. She described Mr. Blackwell as "a very good colleague and friend", someone she worked with daily when their relationship began and whom she saw two to three times weekly on business until 2010. Ms. Martin said that she attended the insurance agents' conference in Hull, Quebec with Mr. Blackwell and Ms. Saunders, driving to and from it with them from Ontario. Ms. Martin said she visited them in the room which they were sharing in the hotel in Hull. She said that room contained only one king-sized bed.

[15] Also to impugn Ms. Saunders on the nature of her relationship with Mr. Blackwell, among other matters, Mr. Miller called Walter Baumann as a witness. Mr. Baumann is a Detective Sergeant with the Ontario Provincial Police who has known Mr. Blackwell since 1996 or 1997 and described Mr. Blackwell as one of his best friends. Mr. Baumann said that, to his knowledge, Mr. Blackwell moved into a residence with Ms. Saunders in the early summer of 2007 and that Mr. Baumann helped Mr. Blackwell move out in August of that year.

[16] Finally on this issue, Mr. Miller called as a witness Ms. Saunders's cousin Steven Mills who, Mr. Mills said, began living with Ms. Saunders and her three children at her home on Heath Valley Trail in Waubashene in May of 2007. Mr. Mills testified that he lived with Ms. Saunders for approximately two years, moving in June of 2007 with Ms. Saunders and her children and Mr. Blackwell into the 24 Wilcox Road home at which the assault is alleged to have occurred later that year. Mr. Mills said that he slept on a couch in the house living room and that Ms. Saunders and Mr. Blackwell slept in Ms. Saunders's room. Mr. Mills said he saw Mr. Blackwell with Ms. Saunders at either the Heath Valley Trail or Wilcox Road homes virtually every day in and after the spring of 2007 until the end of the year.

[17] Made Exhibit 10 at trial is a typed, undated letter purporting to be written by Mr. Mills to one Laurie Aylwin. The letter states that Mr. Blackwell never co-habited with Ms. Saunders at Wilcox Road and that he never slept with Ms. Saunders. Mr. Mills said at trial that the letter was prepared by Ms. Saunders for the purpose of aiding her position in a civil suit brought by Mr. Blackwell in 2008 for the recovery of monies used to assist in the purchase of the 24 Wilcox Road home. Mr. Mills said that he understood Ms. Alywin to be Ms. Saunders's lawyer in that litigation. He said that the letter's denial of an intimate relationship between Mr. Blackwell and Ms. Saunders and of their co-habitation was false. He said he signed the letter simply to assist his cousin.

[18] On the basis of Ms. Martin's, Mr. Baumann's and Mr. Mills's evidence, together with Mr. Blackwell's testimony about an ongoing intimate relationship with Ms. Saunders, Mr. Miller submits that the preponderance of proof and all inherent probabilities militate against Ms. Saunders's unwavering assertion that her relationship with Mr. Blackwell was Platonic. He suggests that, if Ms. Saunders is prepared to mislead the court with such determination about this admittedly-peripheral issue, she is not to be relied upon in respect of the alleged assault itself.

[19] Ms. Bhangu for the Crown concedes that some scepticism is in order about this aspect of Ms. Saunders's testimony but that the issue is unrelated to that which is to be decided in this case – whether Mr. Blackwell deliberately kicked Ms. Saunders in the face on the night December 29/30 2007 regardless of the precise state then or previously of their relationship.

[20] I do not regard the nature of Ms. Saunders's relationship with Mr. Blackwell as proven either way. While the norm of a relationship between a man and a woman who share a room at an inn, a hotel and a resort can fairly be said to be intimate, a friendship of the sort described by Ms. Saunders which does not involve physical intimacy is not unthinkable. The fact that Ms. Saunders was still living with her husband when the out-of-town trips occurred certainly adds to the irregularity and does lead me to wonder whether the relationship was something more. However, the proof, subsequently described, is not so forceful as to satisfy me that the relationship was an intimate one and, accordingly, that Ms. Saunders was giving false evidence on the point.

[21] Ms. Martin said that Mr. Blackwell and Ms. Saunders had only one bed in their room in Quebec. Ms. Saunders said there were separate beds. I did not consider Ms. Martin as any more reliable a witness than Ms. Saunders. Ms. Martin testified about another collateral matter: Mr. Blackwell playing for her a telephone message from Ms. Saunders in which Ms. Saunders expresses a desire to see Mr. Blackwell again. Ms. Martin dated the playing of the message as in the first two months of 2009, the incident of the alleged assault having, she said, occurred the previous December. This evidence would place the alleged assault one year later than it occurred. This was no doubt a slip on Ms. Martin's part – she did say in cross-examination "I could be off by a year" – but it prevents me from regarding her as a particularly precise witness in relation to Ms. Saunders.

[22] Mr. Baumann's evidence did not necessarily contradict Ms. Saunders's version of her involvement with Mr. Blackwell in the spring and summer of 2007. She acknowledged that Mr. Blackwell was a frequent overnight visitor at her home during that time and that some of his property was at her home until the two had a falling out in August 2007. However she said that they slept separately. Mr. Baumann concluded that Mr. Blackwell was living with Ms. Saunders after the move of Mr. Blackwell's property into Ms. Saunders's home in the summer of 2007. Mr. Baumann, however, was not in a position to say whether they were intimate. Mr. Baumann's conclusion and Ms. Saunders's testimony can be reconciled.

[23] Mr. Mills was not a witness to whose evidence I would give significant weight. He said that he had lived with Ms. Saunders until August 2009 when he and Ms. Saunders had a disagreement in which Ms. Saunders accused Mr. Mills of lying. According to Mr. Mills, the disagreement was sufficiently serious that he has not spoken to Ms. Saunders since, although he had lived with her for the previous two years. Mr. Mills said that he had maintained contact with Mr. Blackwell. I regarded him as having an animus against Ms. Saunders. More significantly, Mr. Mills is literate, a high school graduate and spent most of his working life in car sales and sales management; he is not unsophisticated. He knew that Ms. Aylwin was Ms. Saunders's lawyer in a civil dispute with Mr. Blackwell. He testified in chief that he did not understand the significance of signing the letter made Exhibit 10 which, he says, was untrue. He said that he was drinking at the time he signed the letter. Yet, in cross-examination, Mr. Mills responded to Ms. Bhangu's suggestion that he knew when he signed the letter that it would end up in court. He said, "I figured it might. I wasn't fully sure it would". I regarded Mr. Mills as less than candid about his appreciation of the import of the letter. Ms. Saunders denied having prepared the letter. It did not assist Mr. Mills's reliability overall that he has a conviction in April 2008 for possession of a stolen child's bicycle and convictions in December 2009 for care or control with excess blood alcohol and driving while under suspension. In sum, I did not regard his testimony as representing any material challenge to that of Ms. Saunders.

[24] However, even if I found that Ms. Saunders was misrepresenting the state of her relationship with Mr. Blackwell when she testified, I agree with Ms. Bhangu's submission that the resulting blow to her credibility is of limited effect. The implication would be that, for reasons not apparent and collateral to the charge before the court, Ms. Saunders refuses to admit the existence of a romantic relationship with Mr. Blackwell. The implication would not be that Ms. Saunders necessarily cannot be relied on concerning the essentials of the charge.

b. Ms. Saunders's initial explanation for her injury

[25] Ms. Saunders said to the attending medical staff of the hospital on December 30, 2007 that she had injured herself by falling on her deck. Mr. Miller submits that, if this was her official version of events until she was served with a civil claim by Mr. Blackwell early the following year, one cannot now say with relative certainty that she came to be injured otherwise. On this point, as I stated previously, Ms. Saunders said she concealed the crime and deferred seeking to have Mr. Blackwell charged because he already had many troubles and she simply wanted him out of her life. Even on Mr. Blackwell's version of events, it is clear that the fall-on-the-deck story was a fiction. The only issue is why Ms. Saunders told it. I did not find her explanation implausible.

c. The man in the video

[26] The first portion of the audio/video disk made Exhibit 1 is a largely indecipherable but audible film made by a clearly-intoxicated Ms. Saunders as she and a male companion spent time at Ms. Saunders's Wilcox Road home. Ms. Saunders identified the male in the recording as Mr. Blackwell. Mr. Wilcox, in his testimony, identified the male in this portion of Exhibit 1 as himself. He said the film was taken following a visit by him and Ms. Saunders to a spa in December of 2007 and his consumption of several drinks which affected him strongly and led to discreditable behaviour on his part. Despite his involvement in this incident, I regarded Mr. Wilcox as a neutral, careful, reliable witness. It was clear from his testimony generally that he would not strain to support Ms. Saunders. He had been friends with her but also with Mr. Blackwell. He readily disagreed with several aspects of Ms. Saunders's evidence when that evidence was put to him in cross-examination by Mr. Miller, including Ms. Saunders's indication that Mr. Blackwell was the male in the recording. As with other elements of Mr. Wilcox's testimony, I accept that it was he in the recording and not Mr. Blackwell. Accordingly, Ms. Saunders is incorrect.

[27] Mr. Miller submits that the inaccuracy is a deliberate attempt by Ms. Saunders to besmirch Mr. Blackwell in the eyes of the court. Certainly the male in the recording – Mr. Wilcox, as it turns out – utters words and noises suggesting he has consumed considerably too much alcohol and is feeling wretched. His deportment is less than admirable. However, I do not regard this inaccuracy by Ms. Saunders as intentional or material. The recording makes clear that she was intoxicated. The accuracy of her recollection might well be poor. The little Mr. Wilcox says on the recording is slurred and toneless. While I accept that a very careful witness in Ms. Saunders's position might have been able to differentiate between Mr. Blackwell's voice and Mr. Wilcox's and to have recognized that the male one hears on the recording is not Mr. Blackwell, I cannot say that I, having seen and heard the film at trial, was aware that the male was not Mr. Blackwell until Mr. Wilcox said so.

d. Self-contradictions

[28] Mr. Miller rightly observes that there are several instances where Ms. Saunders varied from one court proceeding to another in her descriptions of the circumstances immediately surrounding the alleged assault. He emphasized the following:

(i) On the second day of her trial testimony, Ms. Saunders said her raising with Mr. Blackwell his affair with a married woman is what set him off, whereas at the preliminary inquiry she appeared to discount that topic as the trigger since the two of them had passed on from it when Mr. Blackwell lost control;

(ii) Ms. Saunders said at trial that she and Mr. Blackwell were both seated at a table when he began to sweep things from it and break them. At the preliminary inquiry, Ms. Saunders said she was returning to the table from the bathroom when Mr. Blackwell began throwing things;

(iii) At trial, Ms. Saunders described Mr. Blackwell as standing up from the table, sweeping things from a counter and then falling to the floor, hitting a table as he went down. She said that he then stayed down until she turned away from him to clean up. At the preliminary inquiry, Ms. Saunders said Mr. Blackwell picked himself up from his fall and began throwing footwear which was at the house door prior to striking her;

(iv) At trial, Ms. Saunders said Mr. Blackwell lost his balance and fell to the floor. At one stage of the preliminary inquiry, in cross-examination, Ms. Saunders said, rather, that Mr. Blackwell "threw himself down like a child would";

(v) On the first day of trial, Ms. Saunders said she rolled Mr. Blackwell onto a carpet to separate him from the broken glass. On the second day, she said that she rolled him from the carpet to the linoleum for that purpose and that she had previously mis-spoken;

(vi) At trial, Ms. Saunders said she could not find her dustpan to clean up and had to use a piece of cardboard. At the preliminary inquiry, she had said she was able to find the dustpan and had it in her right hand when she was kicked by Mr. Blackwell;

(vii) At trial in cross-examination, Ms. Saunders said she thought the medical staff at the hospital conducted a "head routine" on her every fifteen minutes for three hours. In chief at trial, Ms. Saunders had indicated attending at the hospital for only one to one and one-half hours. She also acknowledged in cross-examination that the hospital record shows a treatment time in triage of only thirty-nine minutes;

(viii) At trial, Ms. Saunders said she first dialled friend Megan White after the assault and had the phone kicked or knocked (initially she had said kicked) from her hand by Mr. Blackwell. She went on to say at trial that she then dialled Mr. Wilcox's number and threw the phone away from herself so as not to have it too kicked by Mr. Blackwell. At the preliminary inquiry, Ms. Saunders had said that Mr. Blackwell had knocked the phone from her hand after she called Mr. Wilcox. Again, she said at trial she had mis-spoken previously;

(ix) On the second day of trial Ms. Saunders said she struck out at Mr. Blackwell following his assault at a time when she was standing. On the first day of trial Ms. Saunders made no reference to getting to her feet after being kicked by Mr. Blackwell until after Mr. Wilcox had arrived;

(x) At the preliminary inquiry, Ms. Saunders said Mr. Wilcox was with her when she showed Mr. Blackwell the video taken of the mess in her home, of her face and on the house deck. At trial, Ms. Saunders said she was alone when she showed Mr. Blackwell the video.

e. Contradictions by other witnesses

[29] In addition to these internal conflicts in Ms. Saunders's testimony, Mr. Miller notes that there are conflicts between Ms. Saunders's trial testimony and that of other witnesses, as follows:

(i) Apart from the matter of the identity of the male in Exhibit 1, Ms. Saunders's evidence was in several instances in conflict with Mr. Wilcox's. She said that Mr. Wilcox told her that she must have injured Mr. Blackwell's face in their altercation and that that was how she discovered that Mr. Blackwell had been injured. Mr. Wilcox, on the other hand, said that he observed no injury on Mr. Blackwell in their brief encounter outdoors following the incident and thus that he could not have advised Ms. Saunders of the contrary;

(ii) Similarly, Ms. Saunders said that Mr. Blackwell was still inside her home when Mr. Wilcox first arrived in response to her call for help and that he was told by Mr. Wilcox to go outside. Mr. Wilcox's evidence was that Mr. Blackwell was not in Ms. Saunders's house when he first came over;

(iii) Also in conflict with Mr. Wilcox, Ms. Saunders said she thought he accompanied her into her house when the two of them returned from the Midland hospital, that they saw Mr. Blackwell on the couch and that she exited her house briefly with Mr. Wilcox before returning to her own. Mr. Wilcox said Ms. Saunders went alone into her house and he alone into his after they returned from the hospital and he failed to convince her to stay with him. He said he did not see Mr. Blackwell on returning from the hospital;

(iv) Ms. Martin testified that, during the insurance agents' trip to Quebec in 2005, Mr. Blackwell and Ms. Saunders came to breakfast one morning with Mr. Blackwell sporting a visible eye injury. Ms. Martin said that, when she inquired, Ms. Saunders stated that she and Mr. Blackwell had argued overnight and that she had "fucking clocked him". Ms. Saunders denied this. Ms. Martin was testifying without notes approximately seven years after the Quebec trip. For her to recall Ms. Saunders's exact words, which she purported to quote, would be a remarkable feat of memory in my view. To the extent the discrepancy in these testimonies would have significance, although I regarded Ms. Martin as a generally truthful witness, I am again not persuaded that her memory of this incident is to be preferred to that of Ms. Saunders;

(v) Ms. Saunders said at trial that she saw no more of Mr. Blackwell after her return from hospital and her showing him the video on December 30, 2007. Mr. Blackwell said the two went snowmobiling that day. Mr. Baumann's evidence appeared to corroborate Mr. Blackwell's version of events. He said he spoke on the telephone around 1:30 or 2:30 p.m. with Mr. Blackwell on December 30, 2007 and heard Ms. Saunders speaking boisterously in the background. Although I regarded Mr. Baumann as a witness seeking to tell the truth in court, I regard as incorrect his evidence that Ms. Saunders was with Mr. Blackwell on the afternoon of December 30. Perhaps Mr. Baumann was mistaken as to the date or as to whom he heard in the background. I say this because Mr. Wilcox, whose evidence I did regard as entirely reliable, said that he was with Ms. Saunders for twenty minutes at approximately 2:00 p.m. in the afternoon of December 30, 2007, that she looked bruised with one or two black eyes and that he thought she had a bandage on her face. Accepting Mr. Wilcox's evidence on the point, as I do, Mr. Baumann's inference from a phone call with Mr. Blackwell that Ms. Saunders was out snowmobiling with Mr. Blackwell at approximately the same time on December 30, 2007 is highly unlikely.

(iii) My Assessment of Ms. Saunders's Credibility

a. Ms. Saunders's evidence per se

[30] Nonetheless, as noted, there remain several indisputable weaknesses in Ms. Saunders's evidence on collateral matters and even concerning certain aspects of the altercation. I accept Mr. Miller's submission that, in a case such as this where only the complainant and the accused can provide descriptions of the alleged criminal act, it is appropriate – indeed, essential – for the court to have resort to evidence extrinsic to the two descriptions provided in the effort to determine whether the complainant's version constitutes proof beyond reasonable doubt. I recognize that there will be instances where disbelief of the complainant's evidence on collateral matters leads to such a lack of confidence in the complainant that his or her evidence on the essential elements of the Crown's charge becomes too frail to support a conviction. However, I do not regard this as such a case. In R. v. M.G., [1994] O.J. 2086 (O.C.A.) Galligan, J.A, for the majority, provided the following guidance on the issue of witness credibility in the face of inconsistencies:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the British Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1:

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.

In this case there were a number of inconsistencies in the complainant's own evidence and a number or inconsistencies between the complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of a witness's evidence. There is no rule as to when, in the face of an inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here.

[31] I heard Ms. Saunders testify in chief on December 8, 2010 and in cross-examination that day, June 13, 2011 and December 14, 2011. On the basis of my notes, my observations of Ms. Saunders as she testified and my review of the transcript of her evidence, I have concluded that, although occasionally vague and even self-contradictory, she was nonetheless truthful and accurate about Mr. Blackwell's kick. She did not appear to me to embellish the incident itself. She did not evade Mr. Miller's propositions when the answers were not helpful to her, such as her acknowledgements that, on several occasions, her evidence had changed. She did not attempt to rely unduly on the considerable gaps in time between the event and the preliminary, between the preliminary and the trial or between her first, second, and third days of testimony as excuses for uncertainty or variations in her evidence. She was matter-of-fact, not hostile or argumentative, in rejecting the version of events of Mr. Blackwell when it was put to her by Mr. Miller. She struck me as a witness seeking to be accurate in relating an incident which occurred three years earlier, faltering occasionally on peripheral detail but firm on the central feature of how she was injured.

[32] The court in R. v. M.G., supra, also cited with approval the following words of O'Halloran, J.A. of the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R 354 on the issue of credibility:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

[33] Mr. Miller suggested that, apart from its conflicts, Ms. Saunders's version of the assault is not in harmony with the preponderance of probabilities. He submits that it does not make sense, unless she was the assaulter, that she would lie to the Midland medical staff about the cause of her injury, or return to her home and to Mr. Blackwell after going to the hospital, or show her attacker the accusatory film after her return, or decline immediately to call the police. In my view, these facts are not discordant with a scenario in which Ms. Saunders was the victim. It is common ground that Ms. Saunders and Mr. Blackwell had been, at least, very close friends for approximately three years. Ms. Saunders said she felt Mr. Blackwell was already facing a number of problems. She said his violence on December 30, 2007 was unique in their relationship and occurred when he was extremely intoxicated. On her return from hospital Mr. Blackwell was, she said, not threatening and he could not recall his earlier behaviour. It was only when he saw the film and expressed no remorse that she decided their relationship was over. She said she did not feel the need for the laying of charges, as opposed to a parting of the ways, until she received (i) information in approximately April of 2008 which, whatever its truth, led her to conclude that hers was not an isolated incident of violence with Mr. Blackwell and (ii) an email from Mr. Blackwell (made Exhibit 2 at trial) which disturbed her. In all of the circumstances, the actions of Ms. Saunders which Mr. Miller says are implausible do, in fact, have a rational explanation. They do not lead me to doubt her version of events on the test described in Faryna v. Chorney.

b. The video

[34] Bolstering the reliability of Ms. Saunders's narrative concerning the assault by Mr. Blackwell was the video recording made by her following the altercation and Mr. Wilcox's arrival at her home.

[35] Although the matter was not argued, I have considered whether Ms. Saunders's accusation of Mr. Blackwell in the film is admissible as support for Ms. Saunders's evidence at trial that Mr. Blackwell assaulted her. My conclusion is that I can. Although the law of evidence prohibits a witness from supporting his or her testimony with evidence of a prior, consistent out-of-court statement, rebuttal of an allegation of recent fabrication is a recognized exception: R. v. Campbell, [1977] O.J. 1684 (O.C.A.). Mr. Miller's cross-examination of Ms. Saunders and his submissions made clear that Ms. Saunders's credibility is impugned on the basis, among others, that she fabricated the assault only after receiving Mr. Blackwell's civil claim in 2008. Although Ms. Saunders's accusation in the film cannot be regarded as additional evidence that Mr. Blackwell assaulted her, it can be regarded as a demonstration of her consistency in ascribing blame.

[36] The film is probative on another basis as well. A portion of the recording – some thirty-five seconds' worth - is taken outside Ms. Saunders's house within earshot of Mr. Blackwell. It is clear from the start of this portion that Ms. Saunders is conveying with her words that she has suffered an injury resulting in a significant loss of blood and that she holds Mr. Blackwell responsible. This accusation continues for approximately one-half minute without response from Mr. Blackwell, although the clarity of the sound of his cough early in the tape and his eventual replies to Ms. Saunders's remarks indicate that what she saying is audible to him and understood and that he is capable of reply. Mr. Blackwell's version of events at trial was that he was the victim of a vicious, unprovoked attack by Ms. Saunders resulting in his lip being seriously cut, among other injuries. If his version were true, one is compelled to regard his silence in the face of Ms. Saunders's running criticism in the film as very odd. In R. v. Baron (1976), 14 O.R. 2(d) 173 (O.C.A.), Martin, J.A. expressed the principle engaged in the following manner:

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

[37] I cannot know what followed Mr. Blackwell's eventual "well, you know what...." when the tape ended and whether what he said then was exculpatory but, regardless, his restraint for approximately one-half minute in the face of serious, unrelenting reproof – for things he now says were done accidently or defensively, at worst – leads me to infer that he was assenting or, at a minimum, shows consciousness of guilt.

B. James Blackwell

[38] There are several reasons why I have rejected Mr. Blackwell's evidence about the assault, in addition to its conflict with Ms. Saunders's testimony, as follows:

(i) Foremost is the evidence of Mr. Wilcox that, as he passed Mr. Blackwell outdoors on his return to Ms. Saunders's residence immediately after the incident, Mr. Blackwell said to him "I guess I really screwed up this time" or "I really screwed up this time", to which Mr. Wilcox responded "yes, you did", without any further exchange of words between them. There is simply no reconciling, on the one hand, this utterance by Mr. Blackwell and, on the other hand, Mr. Blackwell's evidence at trial that he was the victim of an attack by Ms. Saunders earlier that evening and, perhaps, had injured her in self defence. This evidence of Mr. Wilcox is to the same effect as the previously-described failure of Mr. Blackwell to respond to Ms. Saunders following the incident when she is outdoors filming and ascribing blame: both circumstances cry out for a protest of wrongful accusation. Instead, in the case of Ms. Saunders's accusation, there is lengthy silence. Mr. Wilcox's censure is preceded by Mr. Blackwell's self-censure and followed by silence.

Mr. Miller submits that, although Mr. Blackwell denied saying anything to Mr. Wilcox, if he did say the words attributed to him or something like them, they represented merely an acknowledgement of his part in an evening with Ms. Saunders about which they both should be ashamed. I cannot agree. If it were so, Mr. Blackwell would have used "we", not "I", in his utterance to Mr. Wilcox;

(ii) Mr. Blackwell said at trial that he saw no injury on Ms. Saunders on December 30 following the incident. He said he understood her nose to have been broken twice in her past and that it had looked no different after their altercation than it had previously. Yet there is no issue that Ms. Saunders's nose was broken that night, and Mr. Wilcox said that when he first saw Ms. Saunders on December 30, 2007, the injury to her nose was unmistakable. He said she was bruised and bandaged from the time they returned from the hospital;

(iii) Mr. Blackwell said that he and Ms. Saunders had no discussion of their altercation when she showed him the video of the destruction in her home later in the morning of December 30, 2007. Rather, he said, they talked about and then proceeded on a snowmobiling outing. Applying the standard from Faryna v. Chorny, supra neither the prospect of no word with Ms. Saunders about the altercation on seeing the video nor of a battered Ms. Saunders heading off on a snowmobile excursion seem in harmony with the inherent probabilities;

(iv) Mr. Blackwell said that his reason for breaking off with Ms. Saunders after December 2007 was, "I was fearing for my safety. I didn't know what she was capable of after that". This evidence is inconsistent with Mr. Blackwell's testimony that he woke in Mr. Mills's car after sheltering there following the incident, re-entered Ms. Saunders's home and fell asleep on the couch. That conduct is not the act of a man afraid of his safety at the hands of the homeowner. The evidence is also inconsistent with Mr. Blackwell's testimony that, after waking up around 11:00 a.m. on December 30, 2007, he decided to go snowmobiling alone with Ms. Saunders. If he regarded Ms. Saunders as a threat to his safety shortly after December 30, 2007, one is obliged to wonder why she was not a threat to him that day;

(v) Mr. Blackwell said that he did not go to the police concerning Ms. Saunders's assault, in part because he did not want to jeopardize the chance of recovering a $25,000 sum he had invested in the acquisition of the Wilcox Road property, a property which was registered in Ms. Saunders's name only. Yet Mr. Blackwell also testified that he had claimed this sum from Ms. Saunders back in August 2007 when the two had a disagreement and Mr. Blackwell moved out. He had not been paid by Ms. Saunders to December 30, 2007. According to Mr. Blackwell's testimony, Ms. Saunders violently attacked him on the night of December 30, 2007 and she herself was seriously injured in the fray. Ms. Saunders had shown Mr. Blackwell an audio/video in which she clearly blames him for her injury. In these circumstances, I can see no rational basis for a belief by Mr. Blackwell immediately following the incident with Ms. Saunders and the viewing of the film that she would be any more disposed to pay him his claimed $25,000 post-incident than she had been prior to it and, thus, that deferral of a complaint to the police could conceivably be helpful;

(vi) Although not an especially damaging fact, Mr. Blackwell conceded in his evidence that he was dishonest in his preparation of an application for life insurance for himself and Ms. Saunders. The document was made Exhibit E at trial. Mr. Blackwell said that industry rules require an insurance agent such as himself who is becoming the beneficiary of a policy of insurance he has sold to have the signature of the insured person witnessed by a third party. Parenthetically, I would have thought the requirement would be for third party involvement beyond mere witnessing. However, accepting what Mr. Blackwell said, he went on to acknowledge that he obtained the signature of Ms. Saunders, an insured, on the document in the absence of a witness and later had one of his sales representatives purport to have witnessed her signature. Although Mr. Blackwell initially stated in cross-examination, concerning this conduct, that "as far as I am concerned, I didn't breach procedure", he subsequently acknowledged that the conduct would result in a reprimand, if not a suspension, if discovered by his industry's governing body. This evidence did not redound to Mr. Blackwell's reliability.

Conclusion

[39] In R. v. J.J.R.D., [2006] O.J. No. 4749, the Ontario Court of Appeal expressly ratified the rejection of the evidence of an accused at trial on the basis of a reasoned acceptance of the conflicting evidence of the complainant. The court said this:

The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[40] In R. v. D.R., [2012] O.J. 169, released in April of 2012, the Ontario Court of Appeal reiterated its approval of this basis for rejection.

[41] Here, my rejection of Mr. Blackwell's evidence that he did not assault Ms. Saunders on December 30, 2007 is based on my acceptance of Ms. Saunders's conflicting testimony, but also on the aforementioned weaknesses in Mr. Blackwell's evidence and on the features of the record I have referred to which are extrinsic to the narratives of either Mr. Blackwell or Ms. Saunders.

[42] For these reasons, I find Mr. Blackwell guilty of the offence charged.

Released: November 22, 2012

Signed: C.M. Harpur