Court File and Parties

Court File No.: 15-01729 Central East Region-Newmarket Date: 2015-07-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andre Morris

Before: Justice Peter C. West

Evidence Heard: April 30, 2015 and May 11, 2015 Oral Submissions Heard: June 10 and 15, 2015 Reasons for Judgment Released: July 6, 2015

Counsel:

• Ms. M. Rumble, for the Crown
• Ms. H. Dudding, for the accused

WEST J.:

Introduction

[1] Mr. Andre Morris was charged on February 18, 2015 with two counts of assault in respect of Ashley Alexander, the first occurring between February 1 and February 17, 2015 and the second occurring on February 17, 2015. In addition, Mr. Morris was charged with uttering threats to cause death to Ashley Alexander, between February 1 and 17, 2015. Mr. Morris pleaded not guilty upon being arraigned.

[2] At the commencement of the trial the defence conceded date, jurisdiction and identity. The Crown called two witnesses Ashley Alexander and P.C. Paul Marisette. The defence elected to call no evidence.

Evidence of Ashley Alexander

[3] Ashley Alexander was the first witness called by the Crown. It became evident very early in Ms. Alexander's evidence that she was recanting her sworn statement made to the police during the early morning hours of February 18, 2015.

[4] Ms. Alexander was born in St. Vincent. She came to Canada four years ago with her two oldest children, Alexia, now 8 years old and Arthur Junior, now 6 years old. She has a third child, Shamir, currently 2 ½ years old. Currently she is seven months pregnant with the accused's child.

[5] She has not worked since coming to Canada and currently has no status. She made application as a refugee but her application has been denied. She supports herself and her three children through social assistance. The father of her first two children is deceased. The father of her third child is in Canada but does not provide any support.

[6] In January she was living in a basement apartment in Markham with her three children and Mr. Morris was living with her. He was contributing financially as he worked in a full-time job snowplowing.

[7] Ms. Alexander does not consume alcohol or use illicit drugs. She met Mr. Morris in 2012. He was coming from work and she was going to the grocery store. Mr. Morris approached her in a respectful way and by October 2012 they were involved romantically. They moved in together in December 2012 in an apartment in the Jane/Finch area. In November 2014 they moved to the basement apartment in Markham.

[8] Mr. Morris drinks alcohol but does not consume very often. He consumes beer maybe once a week. He would drink at their home when she was present and have only one or two beer. She never knew him to drink to excess. She testified alcohol never affected his behaviour.

[9] Ms. Alexander testified she and Mr. Morris were getting along in January/February 2015. She was having some problems with her pregnancy, which caused her to be moody and she would act out for no reason. She found herself arguing with him. Mr. Morris was treating her very well. His drinking was normal, maybe two beers at most. She testified she never saw him intoxicated during this time.

[10] In February, Mr. Morris met an old friend to have a few beers at a restaurant across the street from where they live. When he came home he told Ms. Alexander he had more than two beers but did not tell her how many. She could smell beer on him when he came back but he was normal.

[11] Mr. Morris is a good person. He is a good father to her children. Her kids love him. They have never told her they were scared of him and she never heard him call her kids names. She did not fear Mr. Morris in January/February 2015.

[12] When Ms. Alexander called 911 on February 17, 2015, she just wanted to get back at him. He was supposed to bring her something to eat but he came three hours late and she was very angry. He was supposed to get her a sandwich and a hot chocolate from Tim Hortons. She told him what she wanted when he called her at 7 p.m.

[13] He had been working that day since 8 a.m. She believed her went to see his friend at the restaurant after work. His old friend's name is "Blacks" and he told her he was talking to him at the restaurant. "Blacks" is also a friend of hers. Mr. Morris texted her after 9 p.m. to let her know he was coming home. He did not come home until after 10 p.m.

[14] When he came in he apologized for being late but he had her sandwich and hot chocolate from Tim Hortons. Ms. Alexander testified she angry because he was late with her food. Andre was in his work clothes and he still had his water/work boots on, which are tall and made of rubber. He went into the bedroom looking for his phone because he was going to call his friend. He asked for her phone to call his phone.

[15] Ms. Alexander was sitting on the couch at one end and Mr. Morris came and lay on the couch with his head at the other end and asked if she had calmed down. He put one of his feet on her lap, still wearing his boots. She pushed his legs off and told him not to put his foot on her.

[16] He put it back on her as she was about to stand and his foot "brushed" against her "tummy"; she was three months pregnant. She testified his foot just accidently touched her stomach. She did not feel any pain; it did not feel like he had kicked her. This was the way they cuddle.

[17] Ms. Alexander testified she was angry with him and she picked up his foot and put it back on the floor. Mr. Morris was not angry. She was feeling pain from the argument and she felt the stress of the argument going to her "tummy". There are people living above them, two big kids and two adults but nobody came down during the argument.

[18] She accused him of kicking her in the stomach. Andre said he did not kick her, he was calm. He got up and said he was going to meet his friend "Blacks" across road at the restaurant so I could calm down.

[19] Ms. Alexander said this was when she decided to call the cops. She did not believe anything bad was going to happen. She testified she was suffering from pre-menstrual syndrome, which she gets during the first stage of pregnancy. She was also going through some stuff from her past when her first two kid's father had been abusive to her.

[20] After Mr. Morris went outside she called the police. She was not scared of him. The police came to her house. She told the police about two earlier incidents that she had taken photos showing what Mr. Morris had done to her. She said he choked her and scratched her face. One of the photos showed a red spot on her neck. This happened one night in February 2015. Something bit her during the night when she was in bed, so she got her phone, a Samsung Galaxy, and took a picture of the mark so she could see what had happened. She did not want to get out of bed and look at it in the bathroom mirror. She saw the red marks on her neck in the photo. She has delicate skin.

[21] She tried to use this photo as evidence that Mr. Morris had done something to her previously. She testified she wanted to get back at Mr. Morris because of the abuse in her past so she told the police Mr. Morris had choked her but he never did. Mr. Morris never applied force to her neck; he never assaulted her in the area of her throat. This photograph was entered as Exhibit 1.

[22] She sent the photographs by email to the police officer who interviewed her and took her sworn video-taped statement. The email which included the photographs was marked as Exhibit 2. Ms. Alexander testified she was trying to get back at Mr. Morris by using the photographs. He was the only person she could take things out towards at the time.

[23] Ms. Alexander thought he would be locked up by the police but just for the night. She thought he would be able to come back home.

[24] The scrape below her nose was an accident. She told police it was spitefully done by Mr. Morris the night before Family Day, February 16, 2015. She had been arguing with him and he was just saying, "Babes will you just calm done." He used his hand to close her mouth and said for her to stop arguing. He scratched her in the process. He did not really squeeze her lips but he closed her mouth, which caused the mark in Exhibit 3. When he went out of the room they were in to answer the phone she took a picture to see if it was scratched. She told him he scratched her and he got a cloth from the bathroom to clean it up because it was bleeding. Once again she took a picture with her phone because she did not want to get out of bed to look at it in a mirror. She was in bed during the argument and he was sitting on the side of the bed. He was not arguing.

[25] Mr. Morris has never threatened to kill her or cause her bodily harm. He never threatened to slit or cut her throat and drain her blood. He has never head butted her. He has never ripped off her clothes when she dressed to go to church. He has never threatened her in front of the children. In February 2015 she was not scared of Mr. Morris.

[26] She prepared a letter for the Crown Attorney's office on March 9, 2015, asking that the charges laid against her fiancé Andre Morris be withdrawn by the Crown because he is innocent. The letter was marked Exhibit 7 on the trial. In it Ms. Alexander stated she was caught up in a world where she was living with her deceased baby father who badly abused her emotionally, physically, mentally and verbally. Although she gave a statement to police against Mr. Morris, she did so because she was very angry and it was because of her hormones. She was angry with him that night for drinking, plus her hormones were rising such that as soon as he entered the house she was arguing with him. Although she told the police he threatened her, she was the one arguing and he was not arguing, he was only mumbling and she could not hear what he was saying she thought he was saying he was going to cut her throat but that is what her deceased baby father used to say.

Application by Crown to Cross-examine Ms. Alexander due to Inconsistencies Between her Police KGB Statement and Testimony in Court

[27] The Crown brought an application pursuant to s. 9(2) of the Canada Evidence Act to cross-examine Ms. Alexander because of a significant number of inconsistencies between her sworn video-taped statement to the police and her evidence in court. The Crown set out 10 areas of inconsistency:

1. Morris' use of alcohol.
2. Events of February 17, 2015, re: contact with complainant's stomach whether intentional or not.
3. Threats by Morris towards her were constant.
4. Other instances of abusive behaviour by Morris towards her: (a) dressed up – Morris ripping her clothes; (b) Morris would push her around; (c) Morris head butted her.
5. Specific threat – threatened to cut her throat and drain the blood.
6. With respect to her children – threatened her in front of children, her children were afraid of him, Morris called her eight year old daughter a "stinking dirty bitch."
7. She was fed up with the abuse and wanted to be a good role model for her children. She was tired of living in fear.
8. Photos – mark on neck was caused by Morris choking her by applying force to neck which prevented her from breathing.
9. Circumstances leading up to scratch on upper lip.
10. Complainant is scared of Morris.

[28] After hearing the Crown's submissions respecting the s. 9(2) application to cross-examine Ms. Alexander because of the significant inconsistencies between her sworn video-taped statement to the police and her evidence in court, Ms. Dudding conceded all of the elements set out in R. v. Milgaard had been met. Ms. Rumble then commenced cross-examining Ms. Alexander.

[29] Ms. Alexander identified a third photograph she sent to the police by email, which depicted a television she said was broken by her son but she blamed Mr. Morris for breaking. No charge was laid by the police in respect of this photograph.

[30] She knew the statement she gave to the police was being video-taped. She understood the importance of telling the truth and she understood she was talking to P.C. Marisette, who was a York Regional police officer. She was not under the influence of alcohol or drugs as she did not smoke, drink or use non-prescription drugs. P.C. Marisette told her she might be required to testify in court. She knew it was a crime to lie to the police when she gave her statement. She knew it was a crime to tell the police false things about someone. It was her choice to make a statement. She knew her statement was sworn with a commissioner of oaths.

[31] Ms. Alexander testified she was doing her best to tell the truth but everything she told the officer about Mr. Morris was from her past and she used those incidents against Mr. Morris. She was angry with Mr. Morris so she took it out on him. She did not agree she was minimizing his drinking in her court testimony because she did not want to get him in trouble. She lied in her statement to the police. She was angry with him and that is why she called the police.

[32] When she told the police Mr. Morris always threatened her, this was not true. She told the officer Mr. Morris put his hands around her neck and she could not breathe for five seconds but she was not telling the truth. She was just using her past. Everything she told the officer was from her past. She was abused for five years in her previous relationship in St. Vincent. The things she told the officer were not done by Mr. Morris, they were things done by her baby father who died in 2009.

[33] At one point in the statement Ms. Alexander tells the officer she told Morris she was going to leave and go to a shelter with her children. She always said this to him and he would say "Why are you saying that" because he was so good with her kids. He never drank very much. He was never violent to her. She was using things her previous baby father did to her. When she told the police she always told Morris he has to stop drinking so much, she said this because her previous baby father used to drink a lot. She testified she used the incidents from her past because when Mr. Morris drinks it kind of reminds her of her of past.

[34] When she told the officers Mr. Morris jumped on top of her and strangled her she knew she was under oath but what she said was not true. She knew Morris could be locked up.

Crown's Application for Ms. Alexander's Police KGB Statement be Ruled as Meeting Threshold Reliability on Trial

[35] Prior to Ms. Dudding commencing her cross-examination of Ms. Alexander, the Crown brought a further application, pursuant to R. v. B. (K.G.), for a ruling, by applying the principled approach for hearsay statements, that Ms. Alexander's sworn video-taped statement to the police met the criteria of necessity and threshold reliability and should be admitted.

[36] A voir dire was commenced and the Crown called evidence seeking to establish circumstantial guarantees of trustworthiness respecting Ms. Alexander's sworn video-taped statement to the police. P.C. Marisette testified as to the circumstances under which the video-taped statement was obtained from Ms. Alexander. The video-taped sworn statement was played and entered as an Exhibit on the voir dire and later entered as Exhibit 5 on the trial. In addition, Ms. Alexander also testified on the voir dire. The 911 recording was also played and identified and Ms. Alexander agreed it was her speaking with the 911 operator. The 911 audio recording was marked as an Exhibit on the voir dire and later entered as Exhibit 6 on the trial. Ms. Dudding's cross-examination of Ms. Alexander dealt with the Crown's application pursuant to KGB and the trial proper. It was agreed the evidence heard on the voir dire would be admissible on the trial.

[37] The following agreed statements of fact were entered into evidence:

February 17, 2015

• 11:26 p.m. Complainant called 911
• 11:33 p.m. Uniform officers arrived at complainant's apartment, 114 Jack Monkman Crescent Markham
• 11:36 p.m. 911 call ended as officers attended at basement apartment
• EMS also attended but complainant declined to attend hospital
• 11:53 p.m. Andre Morris was arrested by P.C. Dickson. He was walking in the neighbourhood, a block and a half away from apartment
• On his person at time of arrest were 2 cell phones, one of which belonged to complainant. The 911 call was made on a land line

February 18, 2015

• 12:12 a.m. The complainant was taken to 5 District YRP
• 12:20 a.m. Arrived at 5 District
• 12:30 a.m. P.C. Marisette assigned task of interviewing the complainant
• 1:17 a.m. Complainant statement on video commences
• Statement ended at 2:03 a.m.

[38] P.C. Marisette was assigned the task of interviewing Ashley Alexander at 12:30 a.m. He conducted a domestic violence report with her and once that was completed he conducted a video-taped interview. She appeared to understand what P.C. Marisette was saying to her. She was not under the influence of alcohol or drugs. He never threatened her and never promised to do anything for her if she provided a statement. Ms. Alexander was free to do what she wanted to do.

[39] On the video Ms. Alexander consents to the interview being video-taped. She was advised the contents of the video statement could be used in court if she changed her evidence or she did not remember what she said. Ms. Alexander indicates on the video she understood. She also indicated she understood it was a crime to lie to the police or falsely accused someone of a crime. She was cautioned by P.C. Marisette that she could be charged if she lied in her statement or falsely accused someone of a crime.

[40] Ms. Alexander indicated she wanted to swear on the Bible to tell the truth. She signed a sworn video statement form after taking the oath.

[41] Ashley Alexander testified on the voir dire. The 911 call was played in court. Ms. Alexander identified her voice. She told the operator she had to wait until Mr. Morris left the house before she could call the police. She called 911 about 5-10 minutes after he left the house. She used her home phone to call 911. Mr. Morris had her cell phone. He had been ringing his cell phone using hers, trying to find his. She assumed he must have put it in his pocket when they were arguing.

[42] Ms. Alexander told the 911 operator her fiancé had come over to her place, he had been drinking and he abused her by starting to hit her, he was wearing his working boots and she is pregnant and he kicked her in the stomach. She testified this was not the truth. She said this because she was mad because he came home late. She was just feeling mad with him and was not feeling any other emotions.

[43] She told the operator about her CAS worker. She remembered telling the operator about how she told lies to her CAS worker because she was scared of Morris but this was a lie as she was not scared of him. She testified she just felt like doing it, that's why she told the operator about having to lie to the CAS worker.

[44] She testified she used anything to get back at him for being late. The operator asked if he had a weapon and she said no, which was the truth. He was wearing his water/work boots but it is not true he kicked her in the stomach.

[45] The 911 operator told Ms. Alexander she was going to call an ambulance to come to her house, to which Ms. Alexander said, "Yes please." There was no reason for her to accept the ambulance as she was not concerned for her baby.

[46] Ms. Alexander testified Mr. Morris left the house to go across the street to the restaurant to meet his friend. She did not tell the 911 operator this, she just said he left the apartment.

[47] She told the operator she had been in a shelter previously, which was true. She told the operator she had gone to a shelter once without Mr. Morris and she decided to give him a second chance but now things were getting worse. When she asked by the Crown what she meant by this she testified she could not remember and then said she guessed she was mixing herself up because they never broke up and she never went to a shelter without Mr. Morris. When she said she decided to give him a second chance she testified she was using her past but she wanted the operator to think she was talking about Morris.

[48] She agreed when she told the operator Mr. Morris had come home after drinking, this was true. When she told the operator she was three months along in her pregnancy, this was true. When she said Morris did not use drugs, this was true. The fact she had three kids and they were in their room sleeping was true. When she was asked her birthdate she provided the correct date. It was true Mr. Morris had a key to the apartment. When she said Morris left with her cell phone this was true. When she told the operator Mr. Morris did not strangle her that day, this was true. The description she provided of Mr. Morris was accurate.

[49] What she told the operator about Mr. Morris having a criminal record was made up by her; it was the first thing that came into her head. She is really not too sure about Mr. Morris' past.

[50] She agreed she was crying on the 911 call. There was no reason for her to be crying.

[51] She testified she made up that her kids were scared of Mr. Morris. Her kids were not scared of him. There was no reason why she made this up. As she said, she was getting back at him. She said to the 911 operator she was always forgiving him but this time she could not forgive him, she had to think about herself and her three kids. This was not true.

[52] In cross-examination by Ms. Dudding Ms. Alexander said she made the statement to get back at Mr. Morris. The things she alleged against Mr. Morris were things her ex-partner in St. Vincent did to her. She would report her ex-partner to the police in St. Vincent but they did not do anything. They told her to get along with him. She left St. Vincent because of this ex-partner. He was killed by a drug lord and they came after her and her kids. She has issues from the abuse she suffered by her ex-partner in St. Vincent. She has not gone for any counselling.

[53] She testified she had not really thought about what impact the events in St. Vincent would have on her now. She testified she has heard about post-traumatic stress disorder. She does not feel as scared as she did before. She agreed she has flashbacks a lot of times. She gets a strong memory, an emotional feeling she gets where it feels like it's happening to her again. She gets tingly in her skin like she's being hit. She feels aches and pains, headaches and fatigue. She testified sometimes she gets angry when she has flashbacks. She cannot predict when she's going to have them. She sometimes finds herself jumping out of bed when she falls asleep. She sometimes gets a pounding heart and starts to sweat. This can last a minute or two. She testified she feels like his spirit is still on her. She can feel his presence with her. She often thinks of the things he did to her.

[54] She feels a heavy weight on her shoulders. A burden is on her and it makes her feel bad. Makes her feel scared but she does not get this feeling too often. Maybe once every two weeks. She has never had any help for this. She can have nightmares as often a twice a week.

[55] Ms. Dudding asked her if things happen that bring her back to things with her ex-baby father. Ms. Alexander answered alcohol sometimes reminds her of him — when he drank he abused her a lot. She did not like Mr. Morris drinking as it would remind her of what she's been through. She testified she just put this together now as she was being asked questions.

[56] She used to drink but she quit. She believed alcohol could trigger her. She thinks it was an overreaction she had with Mr. Morris.

[57] At the time she made the video statement she was very angry with Mr. Morris. She wanted to get back at someone and Mr. Morris was there. She just said Mr. Morris was doings things her ex had done to her. When Morris was mumbling to her she thought he was saying he was going to cut her throat. This is something her ex-partner said to her. Mr. Morris never said this to her. It was her imagination. It was hard for her to distinguish what happened in the past and what happening with Morris. She testified sometimes she was paranoid when dealing with Morris.

[58] She would have thoughts about falsely accusing Morris when she was having a flashback. She had a need to get back at somebody. The night of February 17 she was very angry because she was very hungry.

[59] She guessed she was getting back at her ex-partner but she was actually taking it out on Morris. She was taking it out on the wrong person. She was not thinking straight.

[60] After she called the police she decided to use the photographs she had. She took 5-10 minutes planning her story to get it straight. She did not think of the photos until she was on the phone with the police.

[61] When Ms. Dudding asked her why she was crying on the video she said, "I can't remember."

[62] She testified there was nothing stopping her from calling the police right after Morris left but she waited 5-10 minutes planning her story. She testified she drove Morris out of house so she could call police. She ordered him to leave. He was going outside to calm down anyways.

[63] At the conclusion of the evidence on the voir dire the matter was adjourned for written argument. Ms. Dudding conceded necessity based on R. v. B (K.G.), supra. The sole issue was whether the statement met threshold reliability. After the Crown filed her factum and casebook arguing the sworn video-taped statement of Ashley Alexander met threshold reliability and should be admitted into evidence, Ms. Dudding wrote the Court and the Crown advising she was conceding threshold reliability and she would not be filing a written factum. She further advised the defence was not calling any evidence and she was prepared to move straight to argument respecting the merits of the case.

[64] As an aside, I can indicate that I agree with Ms. Dudding's concession the sworn video-taped statement of Ms. Alexander to P.C. Marisette did meet both necessity, because of Ms. Alexander's recantation, and threshold reliability given the circumstantial guarantees of trustworthiness present in her sworn video-taped police statement.

Analysis

[65] As in any criminal case, Mr. Morris is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.), R. v. Lifchus and R. v. Starr. Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[66] The burden of proof is upon the Crown at all times to prove the essential elements of the offences beyond a reasonable doubt as explained by the Supreme Court in R. v. Lifchus at para. 39 in its suggested jury instruction:

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.

[67] The sole issue therefore in this trial is whether the Crown has proven Ms. Alexander's recantation, her viva voce testimony during the trial, is not worthy of belief and should be rejected and that her video-taped police statement proves beyond a reasonable doubt the charges before the court.

[68] In her evidence at trial Ms. Alexander maintained Mr. Morris did not assault her or threaten her. He was a good partner, he did not drink to excess, he was loving and supportive of her children, her children were not scared of him, he supported her financially with the money he earned snow-plowing and she was not scared of Mr. Morris. She testified she made up the allegations against Mr. Morris because she was angry over his being so late with her food and she wanted to get back at him. Later she testified all of the things she alleged against Mr. Morris were things her ex-partner in St. Vincent had done to her and she was transposing that abuse to Mr. Morris.

[69] Ms. Dudding submitted Ms. Alexander's evidence as to her reasons for lying to the police in February 2015, while facially strange, should not be rejected out of hand.

[70] In my view, Ms. Alexander was not a credible or reliable witness when she testified at this trial. Her position as to the reason why she called 911 and provided a sworn video-taped statement to police, namely, because she was angry with Mr. Morris being late with her sandwich and hot chocolate from Tim Hortons, does not accord with common sense. This explanation can only be described as nonsensical and completely preposterous. There is no doubt she may have been angry that Mr. Morris was late in bringing her the food she had requested but it makes no sense for her to call the police and make up the allegations she did just to get back at him. This does not make any sense that she would go to the police as a result of such a trivial matter.

[71] Further, it makes no sense she would take two photographs in anticipation of using them to make false allegations against Mr. Morris. Throughout her evidence she maintained Mr. Morris was hardworking, a good person who loved her and her kids and someone who was always calm, even when she would get upset with him. It is totally beyond belief for her to make up false allegations of Morris kicking her stomach, of him choking her, of him grabbing her mouth scratching her upper lip and repeatedly making threats to cut her throat and drain her blood when he was such a great partner.

[72] Her evidence was internally inconsistent in a number of areas, for example:

1. In her evidence Ms. Alexander said Morris never drank more than 2 beers once a week at home. He never drank to excess and was never intoxicated. She testified on the second day of her evidence that Morris, on the night of the incident, told her he was out with his friend, "Blacks" and had 3 or 4 beers but she later changed this to say he only had 2 beers and he was normal when he came home. In my view, this was clearly an attempt to minimize Mr. Morris' drinking. Later in her evidence, in cross-examination, she testified it was Mr. Morris' drinking that caused her to be angry and upset and want to get back at him and which she later maintained caused her to "transpose" her ex-partner's drinking and abuse onto Mr. Morris.

2. In her evidence she said Morris was out with his friend "Blacks" drinking but after he got home, when she got angry because he was late with her food, he decided to go out with "Blacks" to go drinking again. Yet this is not something she related to the 911 operator or the police who attended at her apartment. Mr. Morris was found by police and arrested a block and half from the apartment walking on a street, over 30 minutes after he left the apartment.

3. According to her evidence in court Mr. Morris called or texted her several times after he finished work on February 17: when she told him to pick her up hot chocolate and a sandwich from Tim Hortons around 7 p.m. and when he texted her later around 9 p.m. to apologize for not being home yet but assuring her he was going to be home soon. Yet when she was getting angry with him about his being late she testified he was looking for his cell phone and then asked for her cell phone so he could ring his own to help him find it. How did he misplace his cell phone when he just got home after calling her a number of times? In my view, this was to provide an explanation for why Mr. Morris had her cell phone after he left the apartment and was arrested.

4. It was her position throughout her evidence that Mr. Morris was a good person, hardworking, supported her and her kids, her kids loved him yet she was planning ahead to make false accusations against him by taking and keeping photographs, which, according to her, were of innocent events. This is inconsistent with her position she and Mr. Morris were getting along in January and February 2015. This is also inconsistent with her position she went to the police because she was angry about her food and she just wanted to get back at him. In my view her position is absurd and completely unbelievable, particularly given her evidence she was cooking macaroni when Morris arrived back at the house. Her calling 911 to make up a false allegation against Morris is completely out of proportion to his being late with Tim Hortons' hot chocolate and a sandwich.

5. She testified she did not think anything bad would happen to him by calling the police and making up allegations he had assaulted her and threatened her. She knew he would be locked up but only thought it would be for one night. Yet in her 911 call and in her statement to the police she referred to the fact she believed Mr. Morris had a criminal background. When she was confronted with this, she indicated she just made that up as she did not really know much about Mr. Morris' background.

6. Her evidence changed over the two days she testified. Initially she testified there were no problems between her and Mr. Morris but as she continued to testify, particularly in cross-examination, she testified she was becoming angrier with him and looking for ways to get back at him. She even agreed with suggestions she was transposing her anger concerning her ex-partner's abuse to Mr. Morris.

[73] Her position that she was using incidents from her previous relationship with her baby father of her first two kids when she lived in St. Vincent against Mr. Morris is, in my opinion, completely far-fetched and makes no sense. At one point in her evidence, when the Crown was cross-examining her, she testified she added an incident where she alleged Mr. Morris head butted her to seem extreme to the police. There was no need to be extreme if she "just wants to get back at him" for being late with her food because she was hungry.

[74] When Ms. Alexander was cross-examined by Ms. Dudding it was clear to me she was extremely suggestible and appeared to want to agree with anything Ms. Dudding suggested to her. Ms. Alexander was obviously not adverse in interest towards the defence having written the letter to the Crown and having recanted everything she said in the 911 call and in her video-taped statement.

[75] Ms. Alexander's reason for why she made up these allegations against Mr. Morris evolved and she agreed with the suggestion she was transposing what her ex-partner in St. Vincent had done to her onto Mr. Morris. In response to questions from Ms. Dudding, Ms. Alexander agreed she had flashbacks from the abuse she suffered from her ex-partner in St. Vincent. Her evidence now was Mr. Morris' drinking would bring her back to things done by her ex-partner, who used to abuse her a lot when he had been drinking. As a result of the suggestions being put to her by Ms. Dudding and her agreeing with them, Ms. Alexander testified she, "Just put this together now" during her cross-examination.

[76] She provided another explanation for making up the allegations against Mr. Morris, she was overreacting to Mr. Morris' drinking. This is completely inconsistent with her evidence in chief where she testified Mr. Morris never drank to excess, never more than one or two beers a week when he was at home and in her presence.

[77] In cross-examination she testified when she provided her statement to the police she was very angry with Mr. Morris. Originally her evidence was she was very angry because he was so late coming home with her food because she was so hungry. Now she is saying she wanted to get back at someone because of the abuse she had gone through previously and Mr. Morris was the person who was there. She testified, "I guess I was getting back at my ex but I was actually taking it out on Mr. Morris, taking it out on the wrong person." She agreed with Ms. Dudding she would have thoughts of falsely accusing Mr. Morris when she was having a flashback. Again, this is completely inconsistent with her earlier testimony.

[78] Ms. Alexander's evidence during the trial was completely unbelievable and it became more so when she was being cross-examined. I do not accept her evidence of making up false allegations against Mr. Morris for any of the reasons she provided in her testimony. The question which remains is whether I am satisfied beyond a reasonable doubt that Mr. Morris is guilty of the charges based on Ms. Alexander's sworn video-taped statement to the police.

[79] Ms. Dudding argued Ms. Alexander has lied under oath either way I slice it. If, as I have found, her testimony in court is a lie, she has lied under oath. It is Ms. Dudding's submission this should cast significant doubt on Ms. Alexander's reliability. In my view, the issue referenced by Ms. Dudding has more to do with credibility than reliability. In many instances where a witness gives two irreconcilable statements, it becomes almost impossible to accept that the witness is at all credible, and therefore the trier of fact is left with a reasonable doubt. It is not appropriate to simply pick which version I believe is probably true. I must be able to say the evidence I do accept convinces me of the guilt of Mr. Morris beyond a reasonable doubt.

[80] Ms. Dudding in her submissions recognizes that in this type of circumstance the trier of fact must look to corroborative evidence. In this case there is evidence which in my view corroborates what Ms. Alexander said to the 911 operator and to P.C. Marisette when she provided her statement.

[81] Ms. Alexander's explanation for why she had the two photographs in her cell phone can only be described as incredible and far-fetched. When she spoke to the 911 operator she advised she had photographs of prior instances of abuse. She advised P.C. Marisette the same thing. Mr. Morris had her cell phone when he was arrested by the police a block and a half from the apartment. The cell phone was out of battery so the police charged it and Ms. Alexander showed them the two photographs.

[82] In her video-taped statement she told the police in the early part of February 2015, she and Mr. Morris began to argue about her not wanting to have sex and he ended up jumping on top of her and using his left hand to grab her neck and began to strangle her. She said she could not breathe for five to six seconds. He only let go when she tried to reach his testicles and he got off her. She took a photograph of the bruise to document what Mr. Morris had done to her. She ultimately showed P.C. Marisette the photograph on her phone, which clearly shows a reddish round bruise just to the left of the centre of her neck. In my view, this injury is consistent with someone applying pressure with their left hand; the left thumb would be in the area of the reddish round bruise.

[83] In her evidence at the trial she testified this was a lie that she made up. The reddish round mark, according to her testimony, was caused by a "bug", maybe a "roach." It was her position now that after she was bitten, instead of getting out of bed to go into the washroom and look in the mirror, she got her cell phone and took a picture of her neck. She did not delete this photo. Instead, she kept it and at some point decided to use it in making a false allegation against Mr. Morris, who she described as a good, kind person, as detailed above. Her explanation is nonsensical and in my view, completely ludicrous.

[84] The second photograph depicts Ms. Alexander's face and shows a scratch on her left upper lip, just underneath her nose. Ms. Alexander describes to the police another occasion in February 2015 when she and Mr. Morris were arguing. The argument started with Mr. Morris coming home late and wanting sex. She refused him and then threatened to leave him and go to a shelter. While she was arguing he reached with his left hand and held her mouth closed to prevent her from continuing to talk. While he did this he scratched her upper lip. In my view there is a logical inference that Ms. Alexander pulled her mouth out of Mr. Morris' grasp and in the process his fingernail scratched her upper lip. This, in my view, reflects Mr. Morris' action was not done with Ms. Alexander's consent. It was a deliberate application of force by Mr. Morris to Ms. Alexander without her consent.

[85] In her evidence at trial she testified this incident did happen but the scratch was an accident, as he did not intend to scratch her when he grabbed her mouth to close it and prevent her from talking. She further testified she was the only one arguing and he was not arguing at all. She testified when he left the bedroom she once again got her phone and took a photograph to see what he had done. She saw the scratch and it was bleeding. Mr. Morris, according to Ms. Alexander, got a piece of cotton from the bathroom to clean up the blood. Once again she did not delete this photograph, which she testified was not to document an injury Mr. Morris had caused her. She just did not think about it after she took it.

[86] It was her evidence she decided to use the photographs while she was talking to the 911 operator after Mr. Morris left the apartment. She used the five to ten minutes she waited to plan her story so she got it straight. It is my view, on either version, Mr. Morris grabbing Ms. Alexander's mouth to prevent her from speaking was an assault. He grabbed her mouth without her consent. It was clear on either version she wanted to continue the argument, which he did not want to continue.

[87] In her statement to the police Ms. Alexander told the officers she took these two pictures to document what Mr. Morris had done to her. Her act of taking the photographs and keeping them is, in my view, corroborative of these two incidents of assault. She emailed these two photographs to the police later on the same day she was interviewed. In my view, there is no other rational explanation, which accords with common sense, for why she took these photographs, why she told the 911 operator and P.C. Marisette about them and why she provided them by email.

[88] It is interesting to note in her cross-examination by Ms. Dudding, concerning whether Mr. Morris threatened to cut her throat and drain her blood, Ms. Alexander testified she heard Mr. Morris mumble something during one of their arguments, she testified she thought he was saying he was going to cut her throat. She then testified this was something her ex-partner had said to her and Mr. Morris was not saying this to her. It was all in her imagination and it is hard for her to distinguish what happened in the past and what is happening with Mr. Morris. This, of course, is inconsistent with her earlier testimony of how she was able to distinguish between what her ex-partner in St. Vincent did to her and how she used those incidents against Mr. Morris to get back at him. As I have indicated above, I do not accept Ms. Alexander's explanation of using events of abuse from her past to get back at Mr. Morris. What is telling in this testimony is Ms. Alexander is saying she actually heard Mr. Morris mumble the threat to cut her throat and drain her blood but it did not really happen because she was just imagining it. It is my view Mr. Morris did say these words to Ms. Alexander many times as she described in her KGB statement, although from the KGB statement it does not appear these words were ever said by Mr. Morris and accompanied by actual violence.

[89] Ms. Alexander testified Mr. Morris was on the phone in their apartment with Blacks making arrangements to meet him again at the restaurant across the street yet the police found him walking on the street a block and a half away from the apartment more than a half hour after he left the apartment. Ms. Alexander did not tell the 911 operator or the police Mr. Morris was at the restaurant across the street in a plaza. It is my view this is another example of a piece of evidence in Ms. Alexander's testimony which is fabricated and untrue.

[90] In both her 911 call and in her KGB statement Ms. Alexander makes reference to discussions she has had with her C.A.S. workers. It was Ms. Alexander who brought up her C.A.S. worker's involvement with her family, having to tell her children to lie to the worker and say nice things about Mr. Morris. There was no reason for Ms. Alexander to bring up her C.A.S. worker and although the C.A.S. worker was not called as a witness, Ms. Alexander, by mentioning the C.A.S. worker, was providing a potential witness who could substantiate her version of Mr. Morris' behaviour. In fact, she told P.C. Marisette in her KGB statement she had actually complained about Mr. Morris' abuse to her previous C.A.S. worker in Scarborough and she further told him, "C.A.S., they document everything." She also talks about how Mr. Morris had attended the meetings with the York Region C.A.S. worker and he denied anything is happening when the worker brought up his past convictions. Ms. Alexander told both the 911 operator and P.C. Marisette she had to lie and say nothing was happening because she was scared of Mr. Morris.

[91] In R. v. Devine, the trial judge, as part of his assessment of the evidence, addressed the issue of demeanour and provided in his reasons a detailed account of her evasiveness and reluctance to identify Mr. Devine in the courtroom. He concluded (at para. 41):

I have reviewed the manner of Ms. Pawliw giving evidence on the stand and compared it to the straightforward manner in which she described the incident, and Mr. Devine's involvement, when she gave the KGB statement to the police. I conclude that she was trying to avoid identifying the accused from the witness stand and is trying to distance herself on the witness stand from any identification of the accused.

The Supreme Court saw no reason to disturb the trial judge's finding in this regard.

[92] Ms. Dudding argued I should exercise caution in relying upon demeanor as a factor in determining whether Ms. Alexander's video-taped statement satisfies me beyond a reasonable doubt of Mr. Morris' guilt. I recognize demeanour is but one consideration and I must look at the totality of the evidence and not place undue weight on this factor.

[93] Ms. Dudding relies on R. v. R. (H.) to support her submission that demeanour evidence should be approached with great caution by trial judges. It is important to note that in R. v. R. (H.) the evidence of the complainant was presented through her testimony at the preliminary inquiry, as the Crown was able to satisfy the criteria in s. 715 of the Criminal Code. The trial judge further admitted the complainant's video-taped statement to the police into evidence for the truth of its contents, which the Court of Appeal held was in error as it was a prior consistent statement. The Court of Appeal found the video-taped statement was basically the same as her evidence at the preliminary inquiry and it therefore did not meet the criteria of necessity. The trial judge further compounded this error by overly relying on the complainant's demeanour in assessing her credibility. He held the complainant's demeanour was important as it brought her words to life. The Court of Appeal held because the statement was inadmissible the demeanour observed on the video was also inadmissible. The facts in this case are very different from the circumstances which exist in the case before me.

[94] In the instant case Ms. Dudding conceded the video-taped statement could be admitted into evidence for the truth of its contents as the criteria of necessity and reliability (threshold reliability) had been met based on the evidence called on the voir dire. I recognize that demeanour evidence must be considered in the context of the totality of the evidence and should not be overly emphasized and relied upon by the trier of fact.

[95] What is significant in this case is that during the 911 call and on the video-taped statement there are occasions where Ms. Alexander is clearly crying and upset and on the video she is crying with tears. When she was asked by Ms. Dudding about whether she was crying during the 911 call, Ms. Alexander testified she was crying because she was having two feelings at the time, feeling emotional because of what happened in her past and the fact she was taking it out on Mr. Morris. However, as I have already indicated I do not accept Ms. Alexander's evidence about taking the incidents from her past out on Mr. Morris. Further, there are two occasions in the 911 call where it is clear Ms. Alexander is upset and it sounds like she is crying: the first is at the outset of the call where she is indicating she had to wait for him to leave before calling 911 and then describing how Mr. Morris kicked her in the stomach and she is pregnant and the second is when she is told by the 911 operator there is an ambulance at her house and the operator wants her to stay calm because she is pregnant. It is a reasonable inference she is crying because she is concerned about the wellbeing of her unborn child, particularly having regard as to when she becomes upset and appears to be crying.

[96] When she was questioned by Ms. Dudding as to why she was crying during the video-taped police statement her response was, "I can't remember." Ms. Alexander watched her video-taped statement prior to testifying on April 30 and again in court on May 11, 2015. Her response to Ms. Dudding's question is significant, in my view, and reflects her recognition she was crying because of concern for her unborn child as a result of Mr. Morris' actions, hence her response of not remembering why she was crying.

[97] Further, there is an occasion prior to the commencement of the interview with P.C. Marisette, where Ms. Alexander is in the interview room by herself, she is rubbing her stomach and making sounds as she does this, with deep exhaling. At the beginning of the interview P.C. Marisette asks, "How are you feeling?" to which Ms. Alexander replies, "Tired…A little pain". P.C. Marisette asks whether she had any medical attention before being brought to the police station and she said the ambulance attendants took her blood pressure to make sure it was okay. P.C. Marisette asks whether she would like to see somebody right now, and she responds, "I would love to but I don't have the money to pay for a hospital bill." It is clear on the video that Ms. Alexander started to cry when she spoke about feeling a little pain in her stomach.

[98] In my view, it would be a natural, appropriate response for Ms. Alexander to be upset and crying over her concern for her unborn child because Mr. Morris had kicked her stomach with his work/water rubber boot.

[99] When Ms. Alexander is describing the events of February 17 she provides the details of what happened in a continuous narrative without any breaks or hesitation. This can be contrasted with her viva voce testimony where it was obvious she was attempting at all times to minimize anything being done or said by Mr. Morris: he did not drink to excess, he never argued – it was only Ms. Alexander who was arguing, he was calm and so on. Further, it was clear in her testimony she was attempting to come up with any explanation which would not be against Mr. Morris' interests. In my view, in her KGB statement she is simply recounting events that have happened involving Mr. Morris. In her 911 call and her KGB statement the version of events does not change and are consistent throughout.

[100] If Ms. Alexander was just trying to get back at Mr. Morris for being late with her food there would be no need for her to include details not really favourable to herself. Further, there is no need for her to describe how Mr. Morris sat on the couch and told her he was sorry. It would not make sense for her to describe things favourable to Mr. Morris if her motivation is to get him in trouble to get back at him.

[101] Ms. Dudding also submitted there was no opportunity for contemporaneous cross-examination of the KGB statement as referred to in R. v. Khan and this should affect the weight to be given to the KGB statement in deciding whether the Crown has proven the charges beyond a reasonable doubt. It is my view the lack of contemporaneous cross-examination of Ms. Alexander's KGB statement is alleviated by the fact Ms. Alexander was available at Mr. Morris' trial for cross-examination. In R. v. B. (K.G.), Lamer C.J. cited, at para. 40, McCormick on Evidence and Wigmore, who both dealt with the lack of contemporaneous cross-examination in the context of prior inconsistent statements:

The lack of cross-examination is the most important of the hearsay dangers, but perhaps also the most overstated in the context of prior inconsistent statements. By definition, commentators argue, the maker of the statement is present in court and amenable to vigorous cross-examination respecting his or her recollection, testimonial capacity and bias at the time of the making of the prior statement. As it is argued in McCormick on Evidence, supra, at p. 120:

The witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and re-examination was invented to explore. The reasons for the change of face, whether forgetfulness, carelessness, pity, terror, or greed, may be explored by the two questioners in the presence of the trier of fact, under oath, casting light on which is the true story and which the false.

Wigmore, vol. 3A (Chadbourn rev. 1970), s. 1018, at p. 996, stated that the only ground for excluding prior inconsistent statements as substantive evidence was the hearsay rule, and continued:

But the theory of the hearsay rule is that an extrajudicial statement is rejected because it was made out of court by an absent person not subject to cross-examination.... Here, however, by hypothesis the witness is present and subject to cross-examination. There is ample opportunity to test him as to the basis of his former statement. The whole purpose of the hearsay rule has been already satisfied.

[102] Ms. Alexander was vigorously cross-examined by the Crown pursuant to s. 9(2) of the Canada Evidence Act respecting her reasons for recanting her sworn police statement, her recollection, testimonial capacity and bias at the time of giving her KGB statement. Ms. Dudding also cross-examined her, as I have indicated above, perhaps not as vigorously as she might have been as Ms. Alexander was clearly no longer adverse in interest to the defence. It is my view the circumstances surrounding the taking of the KGB statement, including the fact it was a sworn statement, Ms. Alexander was clearly aware of consequences of lying to the police and making false accusations against another person and the interview was video-taped. A further important circumstance is the manner of questions asked by the interviewing police officer. As I discuss below, P.C. Marisette's method of asking questions; where he asked non-leading, open-ended questions, without suggesting what answers he might want to hear from Ms. Alexander, is a further circumstantial guarantee of trustworthiness. The fact there was no contemporaneous cross-examination of the KGB statement, in my view, does not adversely affect the weight to be given to it considering the fact Ms. Alexander was available for cross-examination as well as the corroborating evidence referred to above.

[103] When Ms. Alexander was asked an open-ended question by P.C. Marisette as to whether Mr. Morris was just trying to place his foot back on her lap when she thought he kicked her stomach, she was adamant Mr. Morris' action was intentional because he was upset and angry she was "dissing" him. P.C. Marisette was providing an out for Ms. Alexander to take, where the fact of Mr. Morris' boot coming into contact with her stomach could be viewed as an accident. However, Ms. Alexander maintained it was not an "accident" as Mr. Morris was angry with her and did it deliberately. Her statement that she never expected he would do something like that knowing she was pregnant with his child is completely credible and provides what I believe to be the true explanation for why she called 911.

[104] Ms. Rumble did not seek to have me rely on the 911 call for its truth, rather, she argued it corroborated what was contained in the police statement and refuted the veracity of Ms. Alexander's recantation. In R. v. Nicholas, at para. 91, the Court of Appeal made the following observations concerning a 911 call:

With respect to reliability, the 911 call was made approximately ten minutes after the attack, indicating that there was little time to fabricate. It was audiotaped and the police statement was videotaped. The police statement, although not under oath, was not elicited by leading questions. The location of the statement, taken at the police station and made to a person in authority is also indicative of reliability (see R. v. Fleet). The trial judge found that G.W.'s demeanour was credible. Perhaps most significantly, he found an absence of any motive to fabricate and that G.W.'s statement was not consistent with other hypotheses (see Justice David Watt, Watt's Manual of Criminal Evidence, (Toronto: Carswell, 2002) at pp. 368-372).

[105] It is clear on the evidence the 911 call by Ms. Alexander was made very shortly after the incident where Mr. Morris kicked her stomach. I have rejected her contention she made up a story in the five to ten minutes after Mr. Morris left and when she called 911. In my view, there was little to no time for her to fabricate the detailed description of the incident she provided both in the 911 call and in her KGB statement. I agree with the Crown that the 911 call does corroborate what Ms. Alexander told the police in her sworn statement. As conceded by Ms. Dudding respecting threshold reliability, all of the circumstantial guarantees of trustworthiness referred to in R. v. B. (K.G.) are present. The video-taped statement is given under oath and is close in time to the incident she called 911 about. It is clear Ms. Alexander understood why she was at the police station. I find her statement to the police to be completely voluntary. Considering the totality of the evidence, I find Ms. Alexander's KGB statement to be reliable and credible.

[106] It is my view there are a number of reasonable inferences which can be drawn from the evidence as to the motivation of Ms. Alexander to falsely recant her KGB statement. First, Ms. Alexander testified after she came to Canada she applied to remain in Canada as a refugee. She was not working but received social assistance. Mr. Morris was contributing to the finances from his employment doing snow plowing. She described him as a good provider who contributed his earnings to the family expenses. Additionally, Ms. Alexander is currently 10 months pregnant with Mr. Morris' child. Her refugee application has been denied and it is my understanding she is facing deportation. The Crown submitted there are two motivations for Ms. Alexander to lie and recant her KGB statement: she always forgave Mr. Morris and accepted him back and she expressed, both to the 911 operator and to P.C. Marisette, her fear of Mr. Morris and what he might do because she had gone to the police. Any of these motivations, in my view, are reasonable explanations for Ms. Alexander's recantation of her KGB statement.

[107] As a result of accepting the reliability and credibility of Ms. Alexander's KGB statement based on the totality of the evidence, including the two photographs depicting injuries caused by Mr. Morris, the 911 call, which was consistent with the KGB statement and as I have found corroborates a number of areas of the KGB statement, I find the Crown has proven the following charges against Mr. Morris beyond a reasonable doubt:

1. Assault: kicking of Ms. Alexander's stomach on February 17, 2015;

2. Assault: choking Ms. Alexander's neck leaving a round red bruise to the left of centre on her neck and grabbing Ms. Alexander's mouth with his left hand and closing it, in the process causing a scratch on her left upper lip, between Feb 1 and 17, 2015; and

3. Uttering death threat to Ashley Alexander, namely, threatening he was going to "cut her throat and drain her blood," between February 1 and 17, 2015.

[108] In terms of the seriousness of the assaultive behaviour occasioned by Mr. Morris, it is my view, the kick to her stomach when he was putting his one leg on her lap as he lay on the couch and she was sitting at the other end, could have had far more serious consequences than it did. However, there was no evidence of any bruising or injury. The EMS, who attended at her apartment as a result of the 911 call, did not take her to the hospital, which leads to the reasonable inference that she and her unborn child were not in any danger. This is significant as their assessment was conducted very shortly after the incident occurred. It is also significant in her KGB statement, close to its completion (around 2:03 a.m.), P.C. Marisette asks again how she is feeling right then and she responds, "Just tired, well the pain kind of eased." In my view this also relates to the level of seriousness to be given to Mr. Morris' conduct in repeatedly putting his one water/work boot onto her lap and Ms. Alexander pushing it off until he got angry and put it back on her lap with force such that he kicked her stomach. It should also be observed the kick was not what would normally be described as a kick, i.e. a person swings their foot towards another person who is standing or lying on the ground and kicks or strikes them. This kick occurred as Mr. Morris was putting his work/water boot back onto Ms. Alexander's lap and in the process struck her stomach.

[109] The grabbing of Ms. Alexander's neck with his left hand also could have had far more serious consequences but on the evidence led at this trial the bruise was small and transient, with no long lasting or permanent injury. It is my view the scratch caused by Mr. Morris grabbing Ms. Alexander's mouth to get her to stop arguing was likely not done intentionally. In my view the scratch was a natural and likely consequence of Mr. Morris' action, particularly if she did not want him to do what he did and she moved her head to get him to let go but not something he set out to do. Again, this injury was transient and not particularly serious.

[110] I have accepted Ms. Alexander's KGB statement respecting Mr. Morris threatening "to cut her throat and drain her blood." This is clearly a threat to cause death, however, based on her KGB statement, although this was a phrase he used repeatedly whenever he was upset about something, there was no accompanying violence which could lead to the reasonable inference he intended to carry through with his threat. In her KGB statement she told P.C. Marisette that Mr. Morris made this threat in the presence of his father.

Released: July 6, 2015

Signed: Justice Peter C. West