Court File and Parties

Court File No.: Peel 14-13920 Date: 2015-01-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kyle Watling

Before: Justice F.L. Forsyth

Heard on: November 13, 2014 and December 1, 2014

Reasons for Judgment released on: January 8, 2015

Counsel:

• Ms. C. Vandenbroek, counsel for the Crown
• Mr. K. McCallum, counsel for the defendant Kyle Watling

FORSYTH J.:

Case History

[1] Mr. Watling was charged with a single count contrary to s. 268 of the Criminal Code alleging that on the 9th day of September 2014 he did unlawfully commit an aggravated assault on Leah Heidman, maiming that person. He retained the professional services of Mr. McCallum and a trial date was fixed for November 13, 2014 in the Ontario Court of Justice in Brampton.

[2] On that day, s. 268 being a straight indictable offence, after he was arraigned Mr. Watling was put to his election and he elected trial by the Ontario Court of Justice. He then entered a plea of not guilty and the trial proceeded on November 13, 2014.

[3] The first witness called by the Crown was the complainant, Leah Heidman, who testified that she had dated Mr. Watling for three months from June until September of 2014. She said that the incident that is currently before the court resulted in the break-up of their relationship. She was asked to explain the events of September 9, 2014.

[4] She said that she had played in a tournament poker game on that evening, but before that time she had been to her parents' house with the accused. She said that they both left her parents' home together and she was driving her parents' van. She said that he had been drinking before that point in time in the evening and that he drinks beer. She was asked how many beers he had consumed before coming to her parents' home and she explained that she really did not know, but that he does drink at work, so of course she would not know how much he had had at work before he arrived.

[5] The Crown asked her if she knew of any habits that the accused indulged in over their three-month relationship and she said, "Just drinking." She said that he drinks excessively and gets pretty nasty when he drinks. Mr. McCallum objected to Ms. Heidman giving what he referred to as opinion evidence with that answer and, after a certain amount of discussion between the Court and Mr. McCallum, I ruled that his objection was improper and that Ms. Heidman should be allowed to comment from her experience with the accused in their relationship about his drinking habits.

[6] She then testified that after the two of them had left her parents' house she drove to the beer store, and from the beer store they went to the poker game in which she participated on a weekly basis. Once they were at the poker game she explained that since Kyle does not play poker he went off on his own and got some beer. She clarified that what she meant by that statement was that he bought some beer at the poker club using her money because he had none. She said that he simply, as far as she knew, bought the beer on her tab and then she later paid the tab. Meanwhile, she began to play in her poker tournament.

[7] The Crown then asked Ms. Heidman if she had ever had any discussions with Kyle before that evening about his drinking habits and Ms. Heidman said that she absolutely had done so. She said that she had told him that if he did not refrain from drinking during the week that their relationship would be over because she could not tolerate it. It should be pointed out that the evening in question here was a Tuesday night.

[8] She said that she played poker until about 9:30 p.m., at which time she was "knocked out" of the game, which is a poker term, she explained, for losing at the table. However, she also explained that before this had happened she had been moved to a table where she ended up playing with her ex-boyfriend whose name is Graham. She said that this seemed to agitate the accused quite a bit and that he was angry about this, that he could see her because he was sitting across at another table from where she was located. She said that he said it was bullshit that her ex-boyfriend was sitting at that table and wondered why they had put her at that table. She said that the whole place became aware that the accused was not happy with this propinquity situation with the ex-boyfriend.

[9] After she was knocked out of the main game she explained that she was allowed to play in what's called a side game, and while she was participating in that game the proprietor who was holding the poker game that night came over to advise her that the accused was being fairly disruptive in his establishment and asked her if she would be opposed to the idea of having him removed from the premises. Ms. Heidman said that she told this fellow to do what he had to do and that she would not have any objection. The Crown asked if she knew whether or not that had occurred and she said that it had not occurred to her knowledge and that Kyle was still in the premises.

[10] She said that she then went out to the patio for a smoke with the accused and the two of them discussed the fact that he was angry about the ex-boyfriend situation. She said that he was very animated with his anger and after that discussion she went back into the bar and she then realized that she had left her coat in her parents' van. She said that she had used the washroom in the bar and came back upstairs to go outside to her parents' truck to get her jean jacket because she was cold and she was going to still stay around and play this side game. However, she found the van to be locked and she returned to the bar where the poker game was being played and she did not see the accused.

[11] Therefore, she went back outside and the accused appeared, she said. She asked him for the key to her car, but he did not want to surrender the keys. Therefore, they argued about this in front of the bar for about 10 minutes. She wanted him to give her the keys so she could get into the truck to get her coat and he was angry with her because she said she would not let him drive the van from that point because he was intoxicated.

[12] Finally, she said the accused opened the door to the van and Ms. Heidman saw the six-pack of beer that she had bought at the beer store was still in the vehicle. However, she noticed that three beers were missing from it and she certainly had not consumed them. She said that she had noticed when they were in the bar that he had snuck one of the cans of Molson Canadian beer from the six-pack inside the car and was drinking it in there. She explained that that was why she knew that he was drinking the beer that she had purchased earlier. She also explained that she had told the bartender before she went out to the vehicle to get her coat that she was not paying for any more drinks for the accused.

[13] At this point in her testimony Ms. Heidman seemed to be telling the Court that she had cut the accused off from being able to buy beers inside the bar and that was why he had gone out to the vehicle and, as he was in possession of the car keys, was able to get a beer from the van and then sneak it back inside to drink it. She said that she and the accused then had quite an argument about this beer and the fact that she had cut him off, and they argued about her ex-boyfriend as well. She said that all of these arguments were taking place out in front of the bar.

[14] She said that he finally surrendered the van keys to her and she then told him that he was going home and that she had had enough of this argument. She explained that she was going to actually take the three beers and put them in her purse and then go back into the bar to continue to play the side game of poker, but her "better sense" told her that it was better to get him home because the evening was not going so well.

[15] The two of them got into the van and she began to drive in a direction that he soon recognized was not going to take them to her home. She said when he realized that she was serious about driving him to his home, he turned to face her in the vehicle and was saying to her things like, "Baby, don't take me home. I don't want to go home, you know, I'll stop, blah, blah – those kinds of – that kind of conversation, then." She said that she simply told him that she was finished with him and did not want anything more to do with him.

[16] When they reached his parents' home she asked him to get out of the vehicle, she said. However, he would not comply and she told him that if he did not get out of the car she was going to have to go and get his parents to help her. She said that he told her that his parents were sleeping and she said that she did not care and told him to get out of the car.

[17] Since he did not seem to be complying she said that she got out of the driver's side of the van and walked over to the back patio door of his parents' house and knocked on it. She said she did notice, however, that the accused was walking behind her as she began to walk towards the door. She explained she went to the back patio door because the home was in a complex and the parking for the units is in the back area where the sliding patio door is on the main floor. She said that any time that they had been to that home she had always gone in the back way and that is why she knocked on the patio door.

[18] She said that the accused's mother opened the door. However, her exact words are important, in my view, so, therefore, I will quote them. She said:

Kyle's mom opened the door. She went to unlock it and the next thing I felt was a smash upside my left face. I heard Kyle's mom say, "Kyle, what are you doing?" and after that I don't remember anything until I woke up in the bathroom with him – to have him cleaning me off.

[19] Asked by the Crown to elaborate upon this event, she said that there is a curtain that hangs down across the sliding patio doors and that she had seen his mother pull the curtain back in order to unlock or open the patio door. The Crown asked Ms. Heidman to explain where the accused's mother was exactly when she said to the accused, "Kyle, what are you doing?" Ms. Heidman said, "The door is open at this point. She is in the process of opening it as he hit me."

[20] She said that before this incident she had no injuries on her face or neck or any other part of her body.

[21] In answer to the Court's questions for clarification about whatever blows she may have felt, she said that Kyle had hit her and that she had felt him punch her in the side of her left temple. When she was asked if she had seen it or just felt it, she said:

I felt and I seen out of my peripheral vision not – I didn't see him, I seen the peripheral, you know he was there but because I wasn't looking at him, I was looking at his mother opening the door, right, through my peripheral vision I knew he was there and punched me in my face, side of my face.

[22] She explained that she was knocked out by the blow and woke up sitting on the toilet inside the house being attended to by the accused with his father standing in the doorway.

[23] The Crown asked her to describe the back patio itself and asked her if there was a trellis with flowers or a table anywhere in the surroundings to the patio. Ms. Heidman said that there was and that it would have been to the right side of her as she approached the door. By that, she explained that she meant that there was a table in that location.

[24] The Crown asked about the condition of the patio flooring and she said that it consisted of cement block-like squares. The Crown asked if they were patio stones and she said that they were. I might add at this point that we now have photographs in this case that clearly show that the patio surface was what looked to me like the very common two-square-foot patio stones adjacent to each other.

[25] She was asked if the accused had said anything to her before he punched her and she said that he had not. She was asked what the last thing was that she had said to him before she walked up to knock on the patio door. She said that she remembered saying to him in the vehicle that if he did not get out of the vehicle she would have to go and get help from his parents.

[26] She said that after she woke up in the bathroom and saw Kyle standing there with his father in the doorway she just kept saying that she wanted to go home over and over again. She said that she remembered the accused's father saying, "Kyle, just let her go."

[27] She then said that she thought that the accused had told his father something like, "Shut up or you're getting it next." She said that the accused finally agreed to let her go.

[28] Ms. Heidman said that the accused followed her out from his house to her van where it was parked. She said that he actually got inside the van and said to her, "I'm so sorry, this – this isn't going to be the end of us, you're not going to break up with me, are you?" She said that she then told him that she was done and through with him, but he would not accept that and he would not let her drive away. She said that she continually told him she just wanted to go home and that he should let her drive home and she asked him to get out of the car. She said that he asked if he could call her the next day and if he could come over to see her after work and that this should not be the end of their relationship. She said finally she just had to go along with these bleatings and agree with him because she did not see any other way that she was going to get out of the parking lot. So she said that everything was fine and that she would talk to him the next day.

[29] Next she said that after she finally got him out of the car she phoned her ex-boyfriend, Graham, and told him that Kyle had just punched her out and that she was on her way home. She said that he told her to come right over to his place, but she was concerned because her children were at home alone in her residence. However, she also did not want her children to see her in this condition, although she had not even seen herself at this point in a mirror.

[30] Ultimately she decided to go directly to Graham's place and they discussed her options, which were, she said, to call the police or seek medical attention. She said that she realized she had better seek medical attention because she was pretty banged up. She said that there was blood dripping from her eye onto her pants and so she finally decided to go to the hospital. She said that she signed a consent for her medical reports when the Crown asked her. I presume, from further developments in this case that what the Crown meant by that question was whether or not she had signed a consent to have these medical records disclosed to the defence and she had done so.

[31] The Crown attempted to introduce the entirety of the hospital medical reports, but Mr. McCallum objected and was only prepared to have admitted those areas of the reports that dealt strictly with the description of injuries observed by medical personnel on the person of Ms. Heidman. I agreed with his objection and ultimately the Crown was content with filing as Exhibit Number 1 what was called "Patient Result Reports" with a certain number of pages that were not in issue.

[32] The Crown then showed some photographs to Ms. Heidman of her apparent injuries. The Crown wished to introduce these photographs as exhibits on this trial and Mr. McCallum had no objection.

[33] Exhibit Number 2 was introduced as a package of photographs of Ms. Heidman's face and other areas of her body such as her elbow and neck with certain marks on them, and I will comment upon them in my analysis.

[34] The Crown asked her how well she had recovered from these injuries and Ms. Heidman said that the recovery was very slow and that she was in a lot of pain. She explained that her elbow became infected weeks after the event and she had to return to the hospital to get an antibiotic. She said that she had headaches from her orbital bone being broken and that she had a pain in her rib. She demonstrated to the Court a mark on her elbow that Mr. McCallum, the Crown and I viewed and we all agreed that her right elbow appeared to have a more reddish discolouration to it than did her left elbow at least on the date of her testimony on November 13, 2014.

[35] She said that although she was not totally sure, she believed that she had received between four and six stitches in the eyebrow area and that it took about two weeks for they were removed. She said they were specifically just on her eyelid underneath her eyebrow on the left side of her eye.

[36] The Crown asked her if she had any other injuries that needed any follow-up and she explained that her ribs were sore and that she had to return to the hospital to have them x-rayed because she could not sleep on her side for "a good seven weeks."

[37] She was asked about her teeth and she said that they had been loosened because of this incident, but that, thankfully, they had straightened themselves out without professional attention.

[38] She denied speaking with the accused since this incident although she said he had sent her a text message after the incident and she had simply replied to him asking him not to contact her anymore or she would be getting in touch with the police. Since that time she said she has had no contact with him.

[39] She was asked how well she knew the accused's parents and she said not well at all, but she had met them perhaps three or four times before that occasion. She had only spoken with Kyle's mother on one previous occasion for about a half an hour.

[40] In cross-examination Mr. McCallum began by suggesting to Ms. Heidman that both she and the accused had consumed quite a bit of alcohol on this particular Tuesday night, both at her parents' house before the poker game and then also by Ms. Heidman at the poker game. Ms. Heidman categorically denied that suggestion.

[41] Mr. McCallum suggested to her that since she drove to the beer store she obviously had the intention of drinking beer that evening, but again she denied that suggestion. She explained that she had gone to the beer store to get beer for her father and, while she was there, the accused asked her to buy six beers.

[42] Mr. McCallum challenged her with her evidence that she had earlier testified that she had had a discussion with the accused about having him not drink during the week or else their relationship would be over. She agreed that she had testified to that effect and that that was a fact. He reminded her that this was a Tuesday night and, therefore, it would seem that her testimony on that subject was in conflict with her testimony in cross-examination that she was simply compliant with the accused's request to buy six beers on a Tuesday night. She denied that there was any inconsistency because, as she put it, that was not her decision to make. She explained that the accused was "very relentless" and that he was adamant that the beer should be purchased and that he did not know what he was going to do without it. Mr. McCallum continually suggested that the beers were purchased for her to consume, at least as well as the accused, and she disagreed.

[43] He reminded Ms. Heidman that she was in control in the sense that she was driving the vehicle and she agreed that she could just as easily have refused not to go to the beer store. Of course she had already testified that part of the reason for going to the beer store was to get beer for her father.

[44] Mr. McCallum asked her if she had been consuming any other substances such as Oxycontin or cocaine or marihuana on that day, and Ms. Heidman categorically denied all of those suggestions.

[45] She said that she had arrived at the poker club at about 7:25 pm and that she remained there for about two hours. Mr. McCallum suggested that she certainly would not have been keeping track of time while she was there and she readily agreed. However, she did not agree that she could have left as late as eleven o'clock. He then suggested that since she was not keeping track of the time, she probably was not keeping track of what she had to drink at the poker club either. However, Ms. Heidman disagreed with that latter suggestion and said that she absolutely kept track of what she had to drink.

[46] Mr. McCallum suggested that she had consumed maybe three or four beers at the poker game, but she denied that it could have been that many.

[47] When Mr. McCallum asked her if she had a valid driver's licence at the time, she said that she did not at that time have a valid licence and she readily agreed with his suggestion that her licence was under suspension on the day in question.

[48] When Mr. McCallum attacked her integrity by suggesting that she did not see anything wrong with driving while her licence was suspended, Ms. Heidman quickly and candidly agreed that there was something wrong with doing that, but she chose to make that decision to drive.

[49] When she was asked if she had any idea how much exactly she had consumed by way of alcoholic beverages at the poker game bar, she said that she knew that she had had two bottles of Molson Canadian beer. When asked why she would be so sure about that when she would not have had any idea at that time if she would ever have to give testimony in a court about it, she said that she never drinks more than two beers when she plays poker.

[50] Undaunted by that response, Mr. McCallum suggested that she had already been knocked out of the poker game before she left the bar and, therefore, she could have consumed more beers, but again she denied that she had done so. I can't be too sure whether Mr. McCallum was referring to the fact that she had been knocked out of the main poker tournament or whether he was referring to that as well as the side game that Ms. Heidman said she also stuck around to play. It seemed to me that she was saying that she was not just sitting idly after being knocked out of the main poker game because she was invited to play in a side game.

[51] Mr. McCallum then suggested to her that she had consumed Oxycontin at some time, "maybe a few days leading up to that." To that question, Ms. Heidman answered "possibly". Mr. McCallum then suggested that she possibly had taken some Oxycontin on this night in question, but Ms. Heidman categorically denied that suggestion and added 'not even' on that day. Mr. McCallum pursued the matter by suggesting that she was "pretty high that night", but Ms. Heidman denied that suggestion.

[52] Mr. McCallum then referred her to the fact that she had parked her vehicle on the grass near the accused's parents' unit as opposed to in the parking lot provided for that purpose. She had no hesitation in agreeing with that suggestion, but when Mr. McCallum suggested that the reason that she had parked it on the grass was because she was impaired or might have been because she was impaired, she explained that there was a strategic reason. She said that she was trying to get as close to his family as she could because she was in fear of his behaviour.

[53] Mr. McCallum then suggested that she did not have to agree to drive the accused to his parents' home and she agreed with that suggestion because it had been her decision in the first place not to drive him to her home. He then suggested that she had followed him to his parents' house when he got out of the vehicle, but she denied that suggestion. She explained that she exited the driver's side and he got out of the passenger side after she exited from the driver's side. Mr. McCallum suggested that she could have easily just got back into her vehicle and driven away after she realized that the accused had finally got out of the vehicle, but Ms. Heidman pointed out that she was already on her way up to the patio door which was not very far away because she had parked the car on the grass.

[54] When Mr. McCallum persisted in asking why she would not have just driven away after Kyle had exited her vehicle, she gave the following answer:

I went to the door and did what I said I was going to do. I told Kyle if he did not get out of my vehicle I was going to the door to get his mom and his dad. He did not get out of the vehicle until I got out of the vehicle to go and get his mom and dad.

[55] Mr. McCallum still persisted in asking her to agree that she could have easily re-entered her vehicle and driven away, and she actually agreed with him that she could have done so but she had not done so. Mr. McCallum then suggested that the reason that she did not do so was because she was not really in any fear at all of the accused that night. However, Ms. Heidman insisted that she was in fear and what she was doing was trying to get assistance from his parents that would assist her with respect to his behaviour.

[56] She agreed with Mr. McCallum's suggestion that she got up to the patio door and tapped on the glass door. He then introduced a series of photographs to her which were filed as exhibits in this case. All of these photographs depict the patio surface area just in front of the sliding glass patio doors of the accused's parents' residence, as well as a certain portion of the surrounding area leading up to the patio. The photographs definitely show a sliding patio glass door and patio stones on the patio surface itself. These photographs were eventually introduced as Exhibit 3A, B, C and D.

[57] Mr. McCallum then referred Ms. Heidman to her evidence in Chief wherein she had stated that just as she had noticed the mother of the accused appearing at the sliding glass door and drawing the curtain back in a preliminary move to open the door, she had felt the impact on the left side of her face. She agreed with that suggestion. He then asked her if she had given a police statement and she agreed that she had done so and that she reviewed it before court on the morning of her testimony and that it was a videotaped statement given on Friday September 12.

[58] Mr. McCallum suggested that there is no reference in that police statement by Ms. Heidman to having seen anything with the assistance of her peripheral vision. She had testified in Chief that she was able to see the accused to the side of her body, although she could not see any blow thrown by him, but she had been able to tell by her peripheral vision that he was there. Ms. Heidman answered by saying that there was no need to tell the police about peripheral vision, and when Mr. McCallum suggested that she was just coming up with that evidence on the day when she was testifying, Ms. Heidman responded by saying, "It was asked of me how I knew." By that, I am inferring that she meant that she was asked by the Crown how she knew that she had been punched by the accused to the side of her face, as she has alleged.

[59] Now, quite frankly, in studying the evidence in the transcript of this case, I find that answer by Ms. Heidman to be exactly accurate. As a matter of fact, when she was testifying in Chief it was actually the Court that asked her whether she had actually seen or felt the blow that she was describing and that was when she gave the comment about the peripheral vision.

[60] However, when Mr. McCallum suggested that nevertheless it was still the first time that she had ever brought up the concept of the peripheral vision in relation to what she had seen that night with respect to the alleged assault, she readily agreed with that suggestion.

[61] Mr. McCallum then engaged in a series of questions about the patio area itself and Ms. Heidman readily agreed that at the time when she was there on the night in question it was certainly quite dark. She also agreed that in what became Exhibit 3C, a series of what I am going to describe as flagstone-style stones are visible leading up to the actual patio area. These flagstone-style stones are in appearance irregularly shaped with large gaps between them, whereas, the patio stones on the surface of the patio appear to be the common two-foot-square type of stone laid together in an even fashion with not much visible by way of gaps between them.

[62] Mr. McCallum then questioned Ms. Heidman about the type of heels that she was wearing on her footwear on the night in question. He began by observing that she was wearing spiked heels on boots in the witness stand at court which he estimated to be two or three inches high. After the Crown viewed Ms. Heidman's heels, as did the Court, there seemed to be a consensus amongst all of us that two or three inches of spiked heel was a fair estimate for what Ms. Heidman was wearing on November 13, 2014. Mr. McCallum then suggested that she was wearing the same type of footwear on the night in question, but Ms. Heidman denied that and said that she was actually wearing open-toed shoes on that evening. Mr. McCallum, of course, expressed incredulity at the fact that she could remember exactly what type of footwear she had been wearing, but Ms. Heidman insisted that she did.

[63] Mr. McCallum then suggested to her that she was mistaken in her ability to remember the fact that she was wearing these open-toed shoes and that she was "probably wearing or were wearing indeed high heels that night?" To this question, Ms. Heidman responded that "they were high heels", just like the ones that she was wearing in court. So, therefore, as it turned out by simply testifying that she was wearing open-toed shoes on the night in question, she was not denying that she had been wearing high heels on the open-toed shoes.

[64] Having thus received that answer Mr. McCallum suggested to her that those spiked heels that she was wearing on the open-toed shoes could easily have got caught up in the stone work that is depicted in Exhibit 3C that leads up to the actual patio surface itself. Ms. Heidman, in the Court's opinion, candidly agreed with that suggestion. It seemed to the Court that Ms. Heidman, had she wished to do so, could have simply let Mr. McCallum assume that she was describing open-toed shoes with no spiked heels by the way he was questioning her and his purpose in the questioning must certainly have been obvious to her as it was certainly to the Court. However, she was quite willing to point out that she had those spiked heels even on the open-toed shoes, thereby opening up the suggestion that she could have had one of those heels catch in the obvious gaps between the irregularly shaped stones that lead up the patio stone surface itself.

[65] Mr. McCallum then suggested to her that she really did not clearly see how she got hit "upside the head", but Ms. Heidman responded by saying that she had "seen it out of my peripheral vision and felt it. He was beside me, I got hit by Kyle Watling."

[66] Mr. McCallum said that he once again was suggesting to her that she did hit something that night, but what she hit was the concrete in the area of that confined patio surface. Ms. Heidman denied that suggestion. Mr. McCallum explained his suggestion by asking her if she would agree that it was a bit cluttered that night on the patio surface.

[67] After a certain amount of bantering back and forth between the two of them, Mr. McCallum succeeded in having Ms. Heidman agree that there was some kind of a table probably on the patio on the night in question, but the exact location of it was not known to her and she also agreed that it was fair to suggest that there were a number of potted plants around the patio area. In addition, she agreed that there could have been a garden hose strewn across the surface of the patio.

[68] Mr. McCallum then nailed down with Ms. Heidman exactly when her driver's licence had been suspended. She said she had been pulled over for drinking and driving two weeks before the incident in question. He, therefore, presumed that she was serving a 90-day suspension, but she said it was only three days, 72 hours. She said that she was never charged with impaired driving. She then agreed with Mr. McCallum's suggestion that even though she was well aware that she was under suspension she had simply ignored that and driven anyway, although she had just testified that it was only a three-day suspension and it was two weeks before the incident in question, so I am not really quite sure what that line of questioning established.

[69] Mr. McCallum suggested that the reason she did not immediately report this alleged assault to the police is because she wanted to sober up before going to the police, but once again Ms. Heidman unequivocally denied that suggestion.

[70] She then agreed with the suggestion that she obviously could not say for sure whether Kyle had been drinking at his place of employment before coming to her parents' house because she certainly was not there with him. She said that she believed that he had only brought two beers out of the original six that he had purchased to her parents' house. Again, she confirmed that the only time she actually saw him drinking was at the poker bar and also at her house, but she was not keeping track of the quantity. She continually denied that she was drinking with him at those locations.

[71] Mr. McCallum suggested to her that it seemed obvious that the accused has a problem with alcohol, but he supposed that she would have a problem with alcohol as well. Ms. Heidman agreed to the extent that she admitted having a problem with alcohol in the past. She said she went to recovery programs four years ago and she now does not drink to excess. She said that she very rarely consumes more than two beers at any given time.

[72] After that answer Mr. McCallum asked her to explain why she would have received a 72-hour suspension of her licence when a motorist does not receive such a suspension unless their BAC is at a sufficient level to require the suspension. Ms. Heidman said that when she was pulled over she was prepared to admit that she had consumed three tall boys in four hours before that time. An agreement between counsel and the Court was arrived at with respect to the meaning of the term "tall boys" in the beer world. A tall boy is a beer that is approximately one-and-a-half regular 12-ounce beers. Therefore, Ms. Heidman was admitting to consuming about four-and-a-half beers on that day.

[73] Again, Mr. McCallum questioned her about her consumption of Oxycontin, but she again insisted that she had recovered from the Oxycontin by the date of this particular incident. Mr. McCallum reminded her of her earlier evidence in cross-examination when he had asked her if she had taken any Oxycontin on that day and she denied doing so, but when he asked her if she had taken some the day before she had said that she might have. She said that she remembered saying that to him, but at lunch, which interrupted the cross-examination, she said that she recalled that she had recovered from the Oxycontin by the time of this incident and, therefore, she could now say with certainty that she had not had any Oxycontin on this day or the day before. Mr. McCallum pursued this subject matter somewhat tenaciously and still suggested to her that she had an Oxycontin problem on September 10 of 2014. Ms. Heidman categorically denied that suggestion.

[74] He asked her if she had received any treatment for the Oxycontin problem and she said that she had not, and when he asked her if she had just "kicked that yourself" she said that she had done so. He then suggested to her that maybe she had a little bit of a slip, as he put it, on the day in question with respect to Oxycontin, but she denied it. Again, Mr. McCallum pursued the subject matter by suggesting to her that on the night in question the combination of alcohol which she had consumed and "perhaps" another substance, including Oxycontin, would have clouded her recollections.

[75] Not surprisingly, given the number of times Ms Heidman had answered such questions, she disagreed with that suggestion and repeated her evidence that she had consumed two beers on the day in question with no Oxycontin. She insisted that she was not intoxicated, nor under the influence of any medication of any kind. Mr. McCallum rather sarcastically suggested to her that she had just come to "that epiphany" over the lunch period, but Ms. Heidman responded by denying that suggestion and saying that she had given that evidence before she went to lunch. Mr. McCallum then bantered back and forth with Ms. Heidman about whether or not she had said earlier in her testimony that she might have had some Oxycontin the day before or days before and there was talk about having a tape playback of that evidence but it never occurred.

[76] Mr. McCallum then moved to the patio description again and introduced Exhibit 3E through Ms Heidman which is a photograph of a table and chairs on the patio of the accused's parents' home. Ms. Heidman agreed that 3A was a photograph of the patio without any furniture and 3E just shows the furniture. Once again, she agreed with the suggestion that it was a small patio area about 10 feet by 10 feet. Mr. McCallum suggested that if the table and chairs and the potted plants were all within that 10-by-10 area it would be somewhat cluttered and she agreed with that suggestion.

[77] He then introduced photograph Exhibit Number 3F which has potted plants in it on the patio and directed Ms. Heidman's attention to what would appear to be a garden hose in the bottom right-hand corner of the photograph. He suggested to her that the garden hose could have been strewn across the patio area on the night in question and she agreed by saying, "It could have been....I have no idea." Mr. McCallum then again suggested that it was so dark that night that she could easily have stumbled over the hose and Ms. Heidman responded by saying that she did not stumble over anything. However, in a hypothetical sense, she agreed that a person could have stumbled over a hose in that location.

[78] Mr. McCallum then summarized the area by obtaining an agreement from Ms. Heidman that the accused's parents' patio at the time had a garden hose strewn across it, some potted plants around or on it and a table and some garden furniture, perhaps even some rocks around the perimeter of the garden. He then suggested that these were a lot of items that could have caused her to potentially trip and fall and hit her head and damage her head by striking any one or more of these objects. Her answer was, "Someone could, sure."

[79] Mr. McCallum then obtained her agreement once again that on her evidence she was testifying that the accused's mother was at the sliding door and that she could see her at the sliding door just before she blacked out after she felt the blow that she has described.

[80] Mr. McCallum then told Ms. Heidman that he was not really suggesting that she was lying in court. As a matter of fact, he said, "I just want to be clear on this, I'm not suggesting that you're lying about anything, but you will agree with me that you never actually saw a fist hit your face, agree?"

[81] Again, Ms. Heidman agreed with the suggestion that she had not seen a fist. With respect to Mr. McCallum telling her that he was not suggesting that she was lying about "anything", I am quite sure that he did not necessarily mean her evidence about whether or not she had been drinking with the accused on the night in question or whether she was being honest with the Court about the number of drinks that she had consumed at the poker game because his cross-examination on those points would certainly suggest that he was of the point of view that she was not being truthful on those aspects.

[82] Mr. McCallum then directly suggested to Ms. Heidman that she had tripped wearing her spike-heeled shoes and that she had fallen and blacked out when she hit her head on something on the patio area. Ms. Heidman disagreed with the suggestion that she fell because she had tripped, but she agreed that when she fell to the patio that was when she blacked out. Specifically, she said, "I did not fall from tripping over any items on that patio because I felt the hit from Mr. Watling on the left side of my face." Mr. McCallum suggested to her that she had felt something just before she blacked out and she agreed with that suggestion.

[83] Then, in an apparent attempt to summarize the cross-examination, Mr. McCallum put the following complex compound question to Ms. Heidman, "And again I'm not suggesting that you're lying about anything, but in the darkness and confusion of how quickly this happened you'd had at least a couple of beers that night, I'm going to suggest you had more and in all of that I'm going to suggest that your recollection of things is somewhat clouded." The response of Ms. Heidman was, "It's not clouded."

[84] Mr. McCallum then re-visited the theory of the defence that Ms. Heidman had stumbled because of her high heels and fallen on the patio by suggesting specifically to her that her heel could have stuck in one of the items that are depicted in the various photographs of the patio, or that she could have become entangled in the garden hose or that she could have stumbled and maybe bumped into the table in the darkness and that that was how she stumbled and fell and why she was knocked out. Once again, Ms. Heidman denied that suggestion and said that she had not stumbled and that she had not fallen without having been struck on the side of her head. She said that she knew that there was a fist that had hit the left side of her face and in her peripheral vision she had seen the accused standing on the left side of her body.

[85] She agreed that she had never made any complaint to the accused's mother or father about the alleged assault and she actually said that she never spoke with either of them after the incident.

[86] She agreed with the suggestion that she had made an arrangement for the accused to pick up his work boots at her residence on the following day after the incident. She said that her son left the boots out for him to pick up.

[87] Mr. McCallum suggested that when she went to her ex-boyfriend's place the first thing she did when she got there was to consume a beer, but Ms. Heidman denied that suggestion. Mr. McCallum then referred her to her police video statement to demonstrate to her why he made that suggestion. In that statement she had said to the police that the first thing she did when she got to her ex-boyfriend's place was to have a 'pop'. Ms. Heidman said that she did not recall saying that, but if it was on the videotape she would not dispute it. Mr. McCallum suggested that what she meant by the word pop was a beer, but she denied that suggestion and she said if she had said that she would have meant a Coca Cola. She denied ever referring to beer as a pop.

[88] Mr. McCallum then suggested to Ms. Heidman that the circumstances for being able to make observations on the night in question on the patio were less than ideal, but Ms. Heidman disagreed with that suggestion. However, she did agree that the lighting was poor.

[89] When Mr. McCallum suggested to her that there was a lot of confusion because she and Kyle had been arguing, she disagreed with the suggestion that there had been confusion. She did agree that they had simply been arguing and she also agreed that she was frustrated with him at that point.

[90] Upon the conclusion of this cross-examination the Crown indicated that she had some re-examination for Ms. Heidman.

[91] Ms. Vandenbroek asked Ms. Heidman why she was able to recall the type of shoes that she was wearing on this night in question. Ms. Heidman responded by saying that she recalled because she had just purchased them weeks before that time and that gave her a total of two pairs of high heels. She said she had lost a previous pair at a Motley Crew concert a couple of weeks before and so the pair she was wearing was the only pair that she had left at that time.

[92] She explained that the reason that she did not go to the police right away was because she was afraid of retaliation from the accused and she also did not want to have to do what she referred to as "all of this", which I believe was intended to convey the fact that she did not really want to have to come to court to go through a testimony and cross-examination situation. However, she said that she felt that the accused was not going to leave her alone and so, therefore, she had to file the charges. She came to that decision after taking some advice from some of her friends and family.

[93] The Crown asked her if she actually had a recollection of the act of falling after she was struck and she said, "I do recall going out, blacking out and that's all I remember."

[94] The Court asked some questions for clarification and one of them was whether or not Ms. Heidman had noticed any lights on in the house when she arrived at about 10:30 or 11:00 p.m. She said that she had not because the curtain was closed when she walked up towards the patio door. She also said it is a very dark, heavy curtain so that she could not see until his mother opened the curtain and then she only saw her open it half way while reaching for the lock and that was the point when she felt the blow that hit her on her face.

[95] The Crown was allowed to ask questions arising out of the Court's questions and Ms. Vandenbroek asked Ms. Heidman why she still continued to walk up to the patio and knock on the door once she actually realized that the accused had finally exited the van and was now walking behind her. Ms. Heidman said she had done so because she was not aware that he was behind her immediately until she got closer to the house and then she realized it. Furthermore, she said that since she was already going towards the patio door to get the attention of the parents, she continued to do so because she wanted them to say something to their son and to help her with him.

[96] Once again, the Court asked a question for clarification arising out of that answer and she told the Court that her purpose for approaching the patio door had changed as she walked towards it. Originally she had intended to go to the door to enlist his parents to help her get the accused out of her van, but when she realized that he had already exited the vehicle, she continued to approach the door for the secondary purpose of talking to his parents about the state of the relationship between her and the accused and how she was trying to end it and he was not in compliance with that request.

[97] Arising out of that exchange between the Court and Ms. Heidman, Mr. McCallum was allowed to ask a question. He reminded Ms. Heidman that even though she was testifying that she wanted to enlist the parents of the accused to help her end this relationship with him, she never did ask for their help. Her answer was to say that she was not able to ask for their help.

[98] Upon the conclusion of all of these questions, the Crown closed its case. Mr. McCallum made a motion for a directed verdict. He argued that the evidence in the case for the Crown only supported a finding by the Court that the Crown had established a prima facie case on the lesser included offence of s. 267(b) on this original charge contrary to s. 268 of the Criminal Code. I dismissed this motion and ruled that the Crown's evidence did establish a prima facie case, especially with respect to the essential element in s. 268 of an objective foresight of bodily harm. My oral reasons for that dismissal, of course, are on the court record of November 13, 2014.

[99] After the ruling, Mr. McCallum elected to call a defence, but indicated that it would not include any testimony from the accused.

Defence Case

[100] The first witness called by the defence was Mrs. Gail Watling who testified in Chief that she is the mother of the accused, Kyle Watling, and that she has been married to his father, Richard Watling, for 29 years. She and her family have lived at the address in question in this trial of 2057 Barsuda Drive, Unit 18, Mississauga, for 11 years. She said that her son, the accused Kyle, would be 29 years of age in December of 2014.

[101] She said that her husband is a carpenter who installs kitchens and Kyle usually works with him.

[102] On the night in question she said that she had gone to bed before her son and Ms. Heidman arrived at their home and the only reason that she realized that somebody had arrived at the home was that she heard banging or tapping, as she put it, on the sliding glass door that leads to their patio. At that time she was upstairs in her bed, but not totally asleep.

[103] She explained that the sliding glass door downstairs at the back of the home leads out onto a garden patio. Mr. McCallum then introduced a series of photographs through her of that patio which became Exhibits 3A, B, C, D, E, F and G. Mrs. Watling explained that she had taken the photographs just the day before her testimony which was given on November 13, 2014.

[104] When she was asked to describe the contents of the photographs she said that the patio surface consists of patio stones that measure two feet by two feet square and that there are five rows of them. Therefore, the patio surface is approximately 10 feet by 10 feet square. She explained and demonstrated from two of the photographs that there is an area of flagstones that are laid on the ground just after a person would leave the regular patio surface to walk out towards a lawn that begins at the end of the flagstones. Eventually the lawn leads to the parking lot of their building which is also visible in one of the photographs.

[105] Mr. McCallum then asked her to explain what type of furniture or potted plants would have been on the patio on September 9, 2013 when this incident occurred. Mrs. Watling was able to assist the Court by pointing certain things out in Exhibit 3D which she explained had actually been taken sometime after August 20th of 2014. She pointed to a table and chairs, some potted plants around the border of the patio and also a garden hose that was laying on the surface of the patio or, as Mr. McCallum put it, "strewn" out on the patio. Mrs. Watling explained that unless she has company coming over to sit on the patio she generally just leaves the hose lying around on the surface of the patio.

[106] She confirmed that on September 9 that was where the hose would have been situated. She explained that she often takes a cup of tea on the patio in the good weather and she would have intended to do so probably on the morning on September 10. Therefore, she was able to testify that the furniture arrangement on the patio would have been exactly as she was describing it at that time of year.

[107] Mr. McCallum then referred her to the events that she had observed in the early morning hours of September 10 after hearing the knocking on her sliding patio glass door. Mrs. Watling said that she got out of bed and turned on the front room light and then walked to the sliding glass door and opened the curtains by pulling them back to try to see who was at the door. Mr. McCallum showed her Exhibit 3A which she identified as a photograph that allows the viewer to see the curtain partially open in the photograph. She said that she opened the curtain to a width of approximately the first section of glass which would be maybe one-third to half way open. She said that this was just enough to allow her to see who was at the door.

[108] She said that it was very dark on the patio. As a matter of fact, she described it as being "pitch out." She was asked if there was a light fixture on the patio, and while she said that there was one, the bulb had not been changed in more than a year and it was not working at that time. She said that it took her a little bit of time to focus and adjust her eyes to the darkness, but when she did she was able to identify the complainant, Ms. Heidman, standing at the patio door just to her left.

[109] Mrs. Watling said that the complainant appeared to be sort of bent down a little bit in an attempt to speak to her as a person tends to do if a door is only open a bit. She said that the complainant said, "I'm sorry, but...." and then at that point she straightened up and began speaking with Mrs. Watling's son, Kyle, right at the door. Mrs. Watling said that she could not hear what they were saying, but the two of them appeared to be talking. She said that the accused was standing just to the right of her position at the sliding glass door while the complainant was slightly to her left. This would place the accused just to the left of the body Ms. Heidman, she said.

[110] She said that after the complainant straightened up and began talking with Kyle she was moving her arms, gesticulating in an exaggerated fashion, including waving her arms above her head. When Mrs. Watling observed this interaction, she said that she just thought to herself that she was not going to deal with that and that she had had it, so she went up to get her husband out of bed to come down and deal with the two of them. Mr. McCallum asked her what she meant by saying that she had enough and her answer was, "The drugs and alcohol."

[111] At this point in time I observed that Mrs. Watling became quiet emotional on the witness stand and after taking a few moments to compose herself she continued to testify and told the Court that her son has a drug problem and, in her opinion, so does Ms. Heidman. She said that the two of them use "oxy" and that they drink. Mrs. Watling continued to be emotional while giving this testimony and she said, "It's just every – it's like an open wound." It should be mentioned at this point that while she was testifying, her son, the accused, was in custody throughout this trial and it appeared obvious to the Court that the sight of her son in custody and the testimony that she was giving by remembering and bringing to the surface his problem with drugs and alcohol upset her greatly as a mother.

[112] She was then asked to summarize her testimony that she had given with respect to the conversation that she had noticed between the accused and Ms. Heidman, and I also asked questions for clarification of that part of her testimony. She said that after she saw the arms flying in the air and the two of them seemingly talking to each other, she had "warning bells going off." Mr. McCallum asked her to explain that phrase and she explained that when you are around addicts all the time, and she referenced her own son with respect to this description, you begin to realize that they exhibit certain types of behaviour and, in her opinion, they stand differently and have a different attitude, and just about everything that they do is somewhat different from a person who is not addicted to drugs. Specifically in this case, she felt that the exaggerated arm movements of the complainant suggested to her that perhaps the complainant and, for that matter, her son may well have been high on drugs or alcohol at that moment. She explained that she had a lot of experience in dealing with both of them in intoxicated conditions.

[113] She said that she had noticed the shape of Ms. Heidman's vehicle in the darkness parked on the lawn portion as opposed to in the regular paved parking lot at that time and she said that of course no parking is permitted on the lawn.

[114] Mr. McCallum then put the evidence of the complainant directly to her that had been given while Mrs. Watling was an excluded witness outside of the courtroom. He told Mrs. Watling that the complainant had testified that "When she was hit upside the head, you were standing right there, according to what Leah has said to us earlier." He asked Mrs. Watling to comment on that testimony, and Mrs. Watling said that she was not there, which I took to mean that she did not see such a thing happen while she was standing there at the door.

[115] Mr. McCallum also informed her that the complainant had said and told the Court that Mrs. Watling had said to her son, "Kyle, what have you done?" Mrs. Watling denied saying that to her son.

[116] She then confirmed again that she had left the area of the door and gone to get her husband, Rick. She had hoped that he would go down and give her own son, Kyle, a "tune-up" about alcohol and drug use. Asked to explain what she meant by that term, she said that Kyle had just been through rehabilitation and she still harboured some suspicions about his use of drugs or alcohol and so she had told her husband about her suspicions that he was back into the drugs again.

[117] In cross-examination by Ms. Vandenbroek, she said that nothing appeared to be disturbed or broken on her patio the day after this incident or perhaps it would be better to say later in the day of the same incident. However, she did say that some of the shrubbery, specifically a plant she had referred to earlier as Echinacea appeared to be broken and these were located in the garden area just beyond the rocks that are shown in one of the photographs bordering the lawn.

[118] Mrs. Watling confirmed that she had only met Ms. Heidman on a couple of occasions but even at the first meeting she made a judgment call on her. Again, she confirmed that it had been pitch black when she looked out through the sliding glass door and she said that she could not detect any injuries on the face of Ms. Heidman, but of course the answer must be viewed in the context of her description of the pitch black lighting. She confirmed that she had seen the car parked on the lawn maybe 20 or 30 feet away. When asked to explain how she could see that far away in the pitch darkness, she said it was like a shadow and she certainly could not have described the colour of the vehicle or the make of the vehicle, but she could make out the shape of a van.

[119] The Crown then suggested that she must have only been at the sliding glass door with the curtain pulled for no more than five seconds before she decided to get her husband, but Ms. Watling responded by saying that it would have taken her at least 15 seconds to adjust her vision in the pitch black to be able to even recognize Ms. Heidman at the door. In addition, she pointed out that she also had observed at least some portion of the conversation between her son and Ms. Heidman and long enough to be able to see Ms. Heidman throw her arms up in the air. The Crown then suggested that perhaps the entire amount of time would be under a minute, but Mrs. Watling said that she felt that it would be more than a minute. However, she qualified her answer by pointing out that she was half asleep at the time and she was not trying to say that she could be absolutely exact on her time estimate.

[120] The Crown then asked her if it was possible that she might have said to her, "Kyle, what are you doing?" as opposed to the words that had been put to her by Mr. McCallum of, "Kyle, what have you done?" Ms. Watling responded by saying, "If I would have said anything it would have been, 'Kyle, I've had enough'." She explained that she could see herself saying something like that to her son and, although she did not recall saying anything at the time, she agreed that it was possible that she said something.

[121] The Crown then suggested that perhaps her son also had a problem with alcohol as well as drugs and an anger problem. Mrs. Watling said that when her son is not under the influence of alcohol he has no anger problem, but if under the influence of alcohol he would be more prone to anger.

[122] The Crown then asked her if she had ever talked to the accused about the incident after it was over and she said that the only thing she really talked to him about was in the form of her ranting and raving at him about the drug and alcohol use and that she had had enough. She said that she had no idea that all of this criminal charge matter was going on until the police arrived at her door at four o'clock in the morning on the Friday.

[123] The Crown then suggested to her that since she could only see a shadowy outline of the car parked on the lawn, perhaps that was all she was able to make out of the complainant as well at the patio door. However, Mrs. Watling said that she had a better idea of seeing her because she was right up at the slider of the door.

[124] After some additional questioning by the Crown about the attempt by Ms. Heidman to bend down and try to talk through the crack of the door to her, Mrs. Watling said that she wanted to add something to her testimony. She said that she did not want to make Ms. Heidman look bad just because she had made a judgment call on her the first time she had met her. The Crown suggested that perhaps the judgment call she was referring to was the fact that she assumed that Ms. Heidman probably had the same sort of problem with substance abuse that her own son had and that was why she was concerned. Mrs. Watling agreed that that was the foundation for her judgment call of Ms. Heidman.

[125] Upon the conclusion of the cross-examination, Mr. McCallum had no re-examination of Mrs. Watling.

[126] The final witness called by the defence was Rick Watling who testified in Chief that he is married to Gail Watling and that he is the father of the accused, Kyle Watling. He confirmed that he installs kitchens for a living and that Kyle works with him. He admitted to a previous criminal record of being unlawfully in a dwelling place approximately 10 years ago.

[127] He said that on Tuesday September 9 he had worked and got home about 3:30 or four o'clock in the afternoon. He said that he drank a couple of beers and then retired to bed about 8:00 p.m. He explained that he gets up at 4:00 a.m. and that is why he goes to bed at 8:00 p.m.

[128] He said that he was awakened after falling asleep by his wife calling him for assistance and he proceeded to go downstairs where she said to him, "You deal with it" and that was it. He was asked what he thought that meant and he said that he assumed it meant to take care of whatever was going on at the time, but he could not see anything happening except Kyle in the act of bringing Ms. Heidman into the house. He said that he first observed that by looking through the window, and he identified the contents of Exhibit 3A and the sliding glass door. He explained that he had seen his son bringing her in through the sliding door with her arm kind of around his neck and he was holding her by the waist.

[129] He said that Kyle seemed "all right." He said that the two of them went into the bathroom and a couple of minutes later they came back out.

[130] He said that he had met Ms. Heidman on perhaps two other occasions before that night. He was asked if he had made any observations about how she was acting and he said that he did not know, although she seemed to be about the same. When asked what that meant, he said, "Kind of tipsy a little bit. I don't know." At this point he explained that he had just been awakened and he was kind of half asleep.

[131] Mr. McCallum asked him what he meant by the term "tipsy" and he said that she was kind of slurring her words a little bit, but he said that that could have been from when she had fallen, he did not really know. He did agree that the word "tipsy" would probably have applied to Kyle as he observed him at that time as well.

[132] Asked to elaborate a little bit upon the bathroom part of the incident, he explained that Kyle had carried her into the bathroom and that they were in there for a couple of minutes and, when they came back out, they stood by the door for maybe three or four minutes and then she went out to her van and he followed her to the van where he stayed for a couple of minutes, and then Kyle returned to the house and, as far as he knew, Ms. Heidman had left.

[133] He explained that he had actually gone into the living room and turned on the television at one point when the two of them were still in the house around the bathroom and he could not hear what they were talking about, although he could detect that they were talking, but he could not make out any words.

[134] He said that when they emerged from the bathroom she had a piece of toilet paper in her hand and was wiping her eye and she put it down on the table just before the two of them went out to her van. He was able to say that he believed it was her left eye that she was wiping.

[135] Mr. McCallum asked him if he had worked later that same day and he said that he had done so and Kyle had worked with him. He said that Kyle had to pick up his work boots from Ms. Heidman's home. He said that they had never done that before and the only time that he had ever been over to Ms. Heidman's place was to pick Kyle up after he had stayed overnight one time. He said that as far as he could recall, Ms. Heidman had put his work boots out in the hall for him to pick up on this day in question. However, he said that he did not accompany Kyle to pick up his boots.

[136] He was shown the photographs of the patio and he confirmed that the plants that are depicted in the photograph would have normally been there on September 9 and 10, and that the hose that is visible laying around would have been there because his wife leaves the hose lying there most of the time.

[137] In cross-examination by the Crown, he agreed that he could not be certain as to whether or not either Kyle or Ms. Heidman or both were drunk when he saw them on this night in question.

[138] He was asked if he had seen any injuries on Ms. Heidman and his complete answer was as follows: "No. I just seen a little scrape. I think it was over – I can't remember what eye it was over. When she came out when she had the toilet paper in her hand." The Crown asked him if he had asked any questions of Ms. Heidman about that apparent injury and he said that he had asked what had happened and that Kyle had answered and said that she had fallen down.

[139] He also pointed out that when the two of them were in the bathroom talking he had gone out front and moved her vehicle off the grass into the parking lot.

[140] The Crown suggested to him that he had "poked" his head into the bathroom to see what was going on between Kyle and Ms. Heidman, but he denied that suggestion and said that at that time he was on the couch in the living room watching TV after he had moved her car off the grass.

[141] The Crown suggested to him that he could see that her face was bleeding, but he said that he did not see any blood whatsoever. He said that there was no blood outside and there was no blood on her face until they came out of the bathroom when she was wiping her eye. He suggested that perhaps it could have started bleeding after she went into the bathroom, but he did not really know. He said that he himself had had some cuts in the past that had not bled for a couple of minutes.

[142] The Crown suggested that Ms. Heidman was "a little agitated" and that she just simply wanted to leave their home. Mr. Watling agreed and said that she seemed to be a little agitated. When the Crown suggested that Kyle might have been agitated as well, he agreed and he said that they were arguing and that they were fighting. The Crown confirmed with him that he had heard what he interpreted as argument even though he could not make out the words of what they were saying in the bathroom. He was asked if he had asked his own son what the two of them had been arguing about and he said that he had not done so because it was none of his business.

[143] Upon the conclusion of this cross-examination, Mr. McCallum had no re-examination for Mr. Watling and he closed the case for the defence. The trial was then remanded to December 1, 2014 for counsel to be able to make submissions.

Position of the Parties

Position of the Defence

[144] Mr. McCallum submits that the complainant should not be found to be credible on her evidence about her alcohol consumption on the night in question and also with respect to the fact that she testified that she had been cautioning the accused about not drinking during the week and, yet, she quite readily purchased him a six-pack of beer on that Tuesday night.

[145] Mr. McCallum submits that Mrs. Watling's evidence should be considered to be credible and trustworthy and reliable and extremely clear about the fact that both the accused, her son, and the complainant had ongoing alcohol and drug problems that included the use of the substance Oxycontin. He argues that an examination of the evidence of Ms. Heidman, especially at page 59 of the transcript of her evidence, should allow the Court to conclude that she was giving contradictory evidence inherently with respect to whether or not she had used Oxycontin either on the day in question or a day or two beforehand. However, I will simply note at this time that when I carefully did examine the evidence of Ms. Heidman with the assistance of the transcript I have concluded that it is possible that she was somewhat mistaken and confused about the time frame of the question that was being put to her about the use of the drug and I am not prepared to make a finding on that aspect of her evidence that she was attempting to mislead the Court in any way.

[146] Mr. McCallum also referred the Court to the testimony of the complainant wherein she has stated that she previously had a problem with alcohol, but that she has successfully taken rehabilitation programs and at the present time never drinks more than two beers at one time. He asks the Court to compare that evidence to her admission that she had the 72-hour licence suspension administered to her after blowing more than 50 milligrams of alcohol per 100 millilitres of blood on an ASD in the recent past. At the same time that she discussed that evidence she was prepared to admit that she had consumed three tallboys of beer, and it was agreed by all parties that a tallboy equals a beer that is more than 12 ounces. As a matter of fact, I am quite prepared to take judicial notice of the fact that a tallboy is approximately one-and-a-half 12-ounce beers, give or take an ounce or so. Therefore, Mr. McCallum submits that the complainant herself was admitting that she on that occasion, which was after her rehabilitation programs, had consumed approximately 4 to 5 regular 12-ounce beers at one time. This, argues Mr. McCallum, is obviously contradictory to her testimony that since her rehabilitation she never consumes more than two beers at a sitting.

[147] With respect to the interaction between Ms. Heidman and Mrs. Watling at the patio door, Mr. McCallum refers the Court to the complainant's testimony where she categorically stated, without any equivocation, that the curtain had been pulled back by Mrs. Watling and that Mrs. Watling was standing there right at the door when the complainant felt the blow strike the left side of her face. However, argues Mr. McCallum, Mrs. Watling's evidence was equally unequivocal when she stated that as she was looking out the door with the curtain pulled and observing the complainant and her son having their discussion she did not see Ms. Heidman be struck or fall down before she left to report to her husband.

[148] With respect to Mrs. Watling's evidence, again Mr. McCallum submits that even the evidence of Ms. Heidman that she had knocked on the patio door is supportive of Mrs. Watling's evidence wherein she has stated that she was awakened by a knocking on that patio door. Mr. McCallum refers the Court to the testimony of Mr. Watling that Kyle and Ms. Heidman had just exited the bathroom together when Kyle stated to him that she had fallen. Somewhat significantly, argues Mr. McCallum, the complainant never complained to either Mr. or Mrs. Watling that Kyle had struck her and caused her to fall down, even when, according to Mr. Watling, Kyle blurted out in front of her to his father that she had fallen on the patio.

[149] Mr. McCallum also submits that when the Court examines the injuries in the exhibit photographs the Court should draw a conclusion that they are equally consistent in appearance with those that might have been inflicted by the punch which Ms. Heidman claims she suffered or as a result of her tripping and falling and striking her facial area on either the flagstones or the rocks surrounding the garden near the flagstones or the concrete patio.

[150] In conclusion, Mr. McCallum submits that the Court, after a careful analysis of the evidence on the basis of the principles enunciated by the Supreme Court of Canada in R. v. W.D., (1991), 63 C.C.C. (3rd) 397 should have considerable circumspection about the reliability of the evidence of the complainant, especially with respect to the manner in which she received her injuries and, therefore, that the Court should find that the Crown has not been able to satisfy its burden of proof beyond a reasonable doubt that Mr. Watling assaulted Ms. Heidman by delivering a punch to the left side of her face which caused her to fall to the ground and be knocked unconscious.

Position of the Crown

[151] Ms. Vandenbroek began by discussing with the Court the position of Mr. McCallum for the defence that the utterance made by the accused to his father should be ruled to be admissible by this Court, not for the truth of its contents, but in order to establish that those words were indeed spoken by the accused and spoken in the presence of the complainant. Therefore, argues Mr. McCallum, the Court should still be able to consider the fact that Ms. Heidman did not take issue with that statement made by the accused to his father that she had fallen down on the patio as opposed to being punched. The Crown argues that those words which were uttered by the accused to his father, if the Court accepts the evidence of his father, should not be admissible for any purpose in the body of evidence on this trial.

[152] In support of her position, the Crown refers the Court to the 1977 decision of the Ontario Court of Appeal in R. v. Campbell, 38 CCC (2d) 6. Mr. Campbell was charged with attempting to murder his wife and was convicted by a jury of that charge and appealed his conviction to the Ontario Court of Appeal. The Crown is not relying upon this case on a factual basis but rather on a principled basis with respect to whether or not the trial judge had erred in rejecting evidence of the appellant's previous statements made out of court.

[153] I will set out the paragraphs on which Ms. Vandenbroek relied in particular and also, in my view, which synthesize the argument with respect to that issue which is a common issue, I find, to this case at bar:

41 This ground of appeal is based upon the refusal of the trial Judge to admit the evidence of third persons with respect to previous statements made by the appellant, and sought to be introduced through cross-examination and otherwise, for the purpose of showing their consistency with the evidence of the appellant.

42 The question of the appellant's right to elicit from the Crown witnesses his previous statements to them, was raised several times during the trial. Initially, the trial Judge ruled that defence counsel could not introduce the appellant's self-serving statements in cross-examination, and thus place the defence before the jury in that way, at all events before the appellant had testified. The trial Judge also held that the undertaking of defence counsel to call the appellant as a witness could not affect the application of the exclusionary rule that self-serving statements are not admissible.

44 The refusal of the trial Judge to admit the evidence of other witnesses, whether in cross-examination or otherwise, of previous statements made by the appellant, involves two separate rules of evidence: I. The rule which precludes an accused from eliciting from witnesses self-serving statements which he has previously made. II. The rule which provides that a witness, whether a party or not, may not repeat his own previous statements concerning the matter before the Court, made to other persons out of Court, and may not call other persons to testify to those statements.

45 Statements made by an accused which infringe rule I are excluded as hearsay. The narration by a witness of earlier statements made to other persons out of Court appears to be excluded under rule II, because of the general lack of probative value of such evidence, save in certain circumstances, in support of the credibility of the witness. Each of the above rules is subject to well-recognized exceptions or qualifications, and there is some overlap, both in the rules and in the exceptions to them: see Phipson on Evidence, 12th ed. (1976), at pp. 650-3; Cross on Evidence, 4th ed., at pp. 207-20; Previous Consistent Statements, [1968] Camb. L. J. 64, by R. N. Gooderson.

46 I did not understand Mr. Gold to argue that the appellant's previous statements were admissible under any of the exceptions to the first of the above rules. He contended, however, that the previous statements made by the appellant, and alleged to be consistent with his testimony at the trial, were admissible under the well-recognized exception to rule II, namely, that prior consistent statements made by a witness are admissible to rebut an allegation of recent fabrication. Where that exception applies, the earlier consistent statements of the witness may be proved by third persons as well as by the witness. He contended, moreover, that upon defence counsel giving his undertaking to call the appellant as a witness, the trial Judge ought to have permitted him to cross-examine the Crown witnesses with respect to the appellant's previous statements to them, notwithstanding the appellant had not then testified, since it was clear, from the cross-examination of the complainant, what the appellant's version would be when he testified, and it was implicit in the Crown's case that such version was a recent fabrication.

47 I accept the proposition that an express allegation of recent fabrication in cross-examination is not necessary before the exception with respect to rebutting an allegation of recent fabrication becomes operative, and that a suggestion that the accused's story has been recently contrived may also arise implicitly from the whole circumstances of the case, the evidence of the witnesses who have been called, and the conduct of the trial. Where the circumstances are such as to raise the suggestion that the accused's evidence is a recent fabrication, counsel may properly anticipate the allegation of recent fabrication in cross-examination, and examine the accused in chief with respect to previous statements to other persons, prior to his being cross-examined: see R. v. Giraldi (1975), 28 C.C.C. (2d) 248, [1975] W.W.D. 166; R. v. Racine (1977), 32 C.C.C. (2d) 468 at p. 473; Previous Consistent Statements, at pp. 86-7, by R. N. Gooderson.

48 I am, however, unable to assent to the proposition that upon counsel giving an undertaking to call the accused as a witness, although given in the utmost good faith, counsel is then entitled to elicit from third persons statements made to them by the accused in order to rebut an implicit and anticipated allegation that his evidence, not yet given, will be a recent fabrication.

49 The accused, of course, remains free to alter his instructions to counsel, or to change his mind with respect to testifying. Such an extension of the exception is unwarranted, would be destructive of an orderly trial and might be productive of mistrials if the accused did not testify after his self-serving statements had been introduced on the basis that such statements would become admissible under this exception.

50 In my view, the trial Judge, therefore, did not err in refusing to permit defence counsel to elicit from the Crown witnesses, before the appellant testified, his previous statements to them.

[154] With respect to the evidence of Ms. Heidman, the complainant, Ms. Vandenbroek submits that the Court should find that she was candid in admitting her own previous alcohol problems and drug abuse problems involving the substance Oxycontin.

[155] The Crown also commends to the Court as good, credible, common sense evidence the portion of her testimony wherein Ms. Heidman gave her reason for keeping her alcohol consumption low on this night in question. That reason was, of course, that she was playing in a poker tournament and obviously would have to have her wits about her.

[156] Also, the Crown submits that the complainant's evidence that her reason for approaching the patio door of the accused's parents to enlist their help in convincing him to accept the fact that his relationship with her had come to an end should also be considered to be credible and to appeal to common sense in the circumstances. The complainant has testified that the accused was refusing to accept the end of the relationship and the Crown points out that there is no other testimony to dispute that position taken by Ms. Heidman. Therefore, enlisting the help of his parents would seem to make perfect sense, argues the Crown.

[157] Ms. Vandenbroek also submits that the Court should find, after a careful examination of the injuries depicted in the exhibit photographs and also the exhibit medical reports which included a fractured orbital bone, are inconsistent with a trip and fall onto a hard surface.

[158] With reference to the evidence of Mrs. Watling that she did not see the complainant struck by her son at the patio door, the Crown submits that the accused could have struck her just at the point after Mrs. Watling had turned away from the door to go upstairs to get her husband. While I certainly understand the Crown's submissions on that point, I feel that it is only fair to comment at this time that it would seem to be equally possible that the complainant, if she indeed did trip and fall, could have done so at that same point in time just after Mrs. Watling had left the patio door, perhaps as she turned to leave in a state of agitation and frustration with the accused, a state of mind that was not denied by the complainant.

[159] The Crown submits that the evidence seems to be undisputed that the complainant managed to safely walk right up to the patio door in order to knock on it even in her spiked-heeled shoes on the concrete patio surface. Therefore, submits the Crown, if she did fall after that point in time, she would have to fall on the smooth patio surface that does not appear to have large cracks between the stones to catch a heel and cause a fall.

[160] The Crown refers the Court to the marks on the complainant's neck in one or two of the exhibit photographs of her injuries as another inconsistency with those marks having been caused by a fall and the striking of the complainant's face or head on stone.

[161] In reply, Mr. McCallum argues that the Court should find that the marks on the neck of the complainant are somewhat irrelevant with respect to the Crown's position that the accused punched her in the face and that that punch caused her to fall to the patio surface. Mr. McCallum also suggested that a careful examination of the photographs should allow the Court to find that the concrete patio stone surface does not appear to be absolutely level, although, I must say, having examined those photographs, if I were to conclude that Mr. McCallum was correct, it would be by an infinitesimal amount without the assistance to the Court of precise measurements of the grade of the patio.

[162] As a secondary argument with respect to the evidence of the father of the accused that the accused had stated that the complainant had fallen, the Crown submits that the Court should find that the evidence is not sufficiently clear that Ms. Heidman was actually within the earshot of that comment being made by the accused to the father, if indeed it was made, to allow the Court to draw any adverse inferences about the credibility because she did not complain at that time to the parents that the accused had punched her. Of course the Crown is careful to argue that that position of the Crown is completely secondary to her primary position that the evidence should not be ruled to be admissible in the first place.

[163] In conclusion, the Crown asks the Court to find, after the proper application of the principles of R. v. W.D., supra, to the entire body of evidence on this trial, that the Crown has proven beyond a reasonable doubt, and the Crown emphasizes the meaning of the word "reasonable", that the accused punched the complainant on the left side of her face and that that punch caused her to fall to the hard surface of the patio knocking her unconscious. The Crown submits that if the Court accepts this argument, then all of the elements of s. 268 have been established beyond a reasonable doubt in the particular circumstances of this case and that the accused should be found guilty as charged.

Analysis

The Out-of-Court Utterance by the Accused to his Father

[164] After a careful consideration of the principles considered by the Ontario Court of Appeal in R. v. Campbell, supra, on this issue I find that I agree with the Crown. First of all, I do accept the evidence of the accused's father that the accused did utter the words in issue. I find, however, that the admissibility of them on this trial is governed by the principles stated by Mr. Justice Martin in paras. 44 to 47, supra.

[165] Specifically, I find that there is no implicit suggestion that the Crown would be arguing from the totality of the circumstances of the evidence that any evidence given by the accused, should he happen to testify, would be subject to an allegation of recent fabrication. Indeed, the evidence in question was not even elicited by Mr. McCallum from the father, but rather it was ingenuously, in my view, rendered by Mr. Watling, Sr., during the course of explaining an answer to the Crown in cross-examination.

[166] In any event, I find that the utterance by the accused to his father that the complainant had fallen down outside is inadmissible, not only for the truth of its contents, but also even for the more limited purpose of having the Court consider whether or not it is adverse to the credibility and reliability of the complainant because she did not dispute that utterance at the time.

[167] In the result, I do not feel that it is necessary for me to conclude whether or not Ms. Heidman was with within earshot, so to speak, of the comment as the two of them exited the bathroom. I should, however, say that if I felt it necessary to do so I would likely find that the relative positions of their two bodies, according to the evidence that is available to the Court, would have permitted such a conclusion.

The Injuries

[168] I find that there is no dispute about the actual injuries that were sustained by Ms. Heidman as they are depicted in the exhibit photographs, in her own evidence and also in the exhibit medical reports. Therefore, I accept beyond a reasonable doubt that she suffered a fracture of the left orbital bone beneath her eye in addition to the other injuries depicted.

The Evaluation and Assessment of the Evidence in Accordance with the Principles of R. v. W.D., supra

[169] I have carefully considered the evidence of the defence witnesses, which did not happen to include the accused, but the testimony of the accused is not a prerequisite to the application of the W.D. principles to the totality of the body of the trial evidence.

[170] I have considered the defence evidence and the theory of the defence in the context of the totality of the evidence and I have also considered carefully the evidence of the complainant with respect to the third arm of a W.D. analysis.

[171] In a somewhat unorthodox procedure for this Court, I am going to state my final conclusion at this point and then list the items of evidence that were of particular concern to this Court in arriving at my conclusion. I find that after a careful application of the principles of R. v. W.D., supra, to the totality of the evidence on this trial, I prefer the evidence of the complainant, Ms. Heidman, with respect to the causation of her injuries that are undisputed. In other words, I prefer the argument of the Crown and the case for the Crown that she was punched by the accused and that the injuries were caused either completely by the punch, or what would be more likely, in my view, partially by the punch and partially by the falling to a hard concrete surface by the complainant which knocked her unconscious after the punch.

[172] However, I have instructed myself very carefully about the standard of proof required in a criminal case and, as we all know, it is proof beyond a reasonable doubt. The component of that standard which has caused me considerable concern in this analysis is a determination of what exactly amounts to a "reasonable" doubt as opposed to a fanciful or insouciant finding of doubt. In the final analysis, I have concluded that the totality of the evidence leaves me with a "reasonable" doubt that the complainant's injuries were caused by the accused punching her.

[173] The evidentiary points that I have considered in arriving at this conclusion are as follows:

• I find that a hard single punch delivered to the left side of the complainant's face could have cut her eyebrow resulting in the six stitches that were sustained and also could have fractured her orbital bone as described by the exhibit medical report and as seen in the exhibit photographs.

• However, I also find that if she had tripped and fallen face forward striking the left side of her face on the flagstones, in particular just off the border of the patio as depicted in the exhibit photographs and/or on the brick-shaped stones that are visible in the exhibit photographs which bordered the garden adjacent to those flagstones, those same injuries could thereby have been caused. I also find that the more incidental injuries such as the scrape to the elbow and even perhaps the mark to her neck as depicted in the photographs could also have been caused by her fall to a stone surface regardless of the causation of the fall. I emphasize that I did not receive expert medical opinions of this question in this trial.

• I find that the spiked heels which the complainant herself admitted she was wearing could certainly have caused her to stumble if she had caught one of them in a crack on either the patio stone surface of the patio or, more likely, in the wider cracks of the more irregularly-shaped flagstone pieces just off the border of the patio. This is only common sense.

• I have no hesitation in accepting the evidence of Mrs. Watling in its entirety. Although by the very nature of her relationship with her son she is a potentially biased witness, I found her testimony in court to belie such a bias. She had no hesitation in stating how fed up she was with her son's alcohol and drug problem, including his repeated and somewhat unsuccessful attempts at rehabilitation which were encouraged by her and her husband. I found that her emotion that she expressed while testifying about these matters was genuine and it assisted me in arriving at a conclusion that she did not come to court to lie for her son.

• With that in mind, and also because the complainant herself even agreed with the evidence of Mrs. Watling that she had approached the patio door after the complainant had knocked on it and pulled back the curtain far enough to be able to see who was at the door, I find that this evidence of Mrs. Watling supports the complainant's evidence that she indeed did see Mrs. Watling at the patio door. However, the very same evidence of Mrs. Watling, which I accept, does not support the complainant's evidence that she was struck by a punch to the side of her face while Mrs. Watling was still present at that door and, as the complainant said in her testimony, she definitely should have seen that blow.

• I accept Mrs. Watling's evidence that the complainant appeared to be arguing with the accused at the patio door and that the last thing that Mrs. Watling saw was the complainant throwing her arms up in the air in the midst of that discussion before Mrs. Watling left the patio door to get her husband.

• As I earlier stated, I agree with the Crown that it is certainly possible that the accused could have delivered the alleged punch at a point in time after his mother had left that patio door to get her husband. However, I must also agree with the defence that it is equally possible that the complainant, if she did trip and fall, could have done so at the same time, in other words, after Mrs. Watling left the area of the patio door. If indeed the complainant did decide to leave the area of the patio door and return to her car after arguing with the accused at the door and after Mrs. Watling left the door, it would be reasonable to assume that she would have decided to walk somewhat quickly away, thereby increasing the possibility of tripping with the spike heels in a crack in the stones, especially the flagstone portion off the end of the concrete patio in the pitch darkness that was described by all witnesses.

• I have also considered the evidence of motive advanced by the Crown with respect to the likelihood of the accused delivering the alleged punch. I have no evidence to dispute the evidence of the complainant that she had cut him off at the bar by speaking to the bartender and that he was displeased with the fact that she decided to drive him to his parents' home as opposed to her own home. Therefore, I would agree with the Crown that the undisputed evidence suggests that the accused would have a considerable motive to be sufficiently angry to perhaps have punched the complainant as she has alleged. I also find that the accused's own mother was candid enough to agree that if he is intoxicated by alcohol, then he is more likely to be angry than otherwise would be the case.

• I have some trouble accepting the complainant's testimony about her total consumption of beer on that evening. I find that she was probably minimizing her estimate but I also find that I cannot, from the evidence available, attribute a level of intoxication to her that would cause me to find that it may well have contributed to her stumbling as she left the patio door.

• Although I have ruled that the utterance which the accused's father attributed to him outside of the bathroom door about the complainant having fallen outside is inadmissible on this trial, I am still permitted to consider the simple fact that at no time while Ms. Watling was in the accused's parents' home after she, by her own testimony, awakened on the toilet seat in the bathroom ever complained that she had been punched by the accused. I find this to be somewhat troublesome in the context of her rather detailed evidence of her thoughts and her actions after she awoke on the toilet seat. She was adamant that she did recall feeling the blow to her face and she had assumed that it was the accused's fist since he was close by her at that point. She admitted that she was very angry and frustrated with the accused to the point that she had decided to even approach his parents at the back patio door in the first place. I, therefore, find it to be troublesome that if she was able to recall the punch, as she has stated, after she awoke on the bathroom toilet seat, and at that time was very angry and frustrated with the accused, she did not blurt out a complaint about the fact that he had punched her. I state this concern in the complete absence of any consideration by this Court of the evidence of the accused's utterance which I have ruled to be absolutely inadmissible.

Conclusion

[174] As I earlier stated and as I hope is clear from the summary of the evidentiary points that I have considered, I prefer the evidence of Ms. Heidman to the theory of the defence that she may possibly have tripped and fallen and incurred the injuries in question.

[175] However, I remind myself that there is no onus on the defence to prove what happened. Rather, it is sufficient if the defence is successful in raising a reasonable doubt in the mind of the Court that the accused punched Ms. Heidman, thereby causing those injuries. If there is one area of evidence that has been significantly influential in allowing me to have what I believe to be a "reasonable" doubt, it is the evidence of Ms. Heidman in which she was categorical and unequivocal that she was punched at the time when Mrs. Watling would definitely have seen it by looking out of the glass patio door right in front of her. As I earlier stated, I found Mrs. Watling's evidence to be credible and trustworthy and I, therefore, find that she did not see that alleged blow.

[176] Therefore, for all of these reasons, I find that the Crown has not satisfied me beyond the necessary standard of proof in a criminal case beyond a reasonable doubt that the accused punched Ms. Heidman in the face on that patio on that night in question. The charge is, therefore, dismissed.

[177] This concludes my written reasons for my oral verdict of not guilty which was delivered on December 11, 2014. I do wish to thank both counsel for their very thorough and professional presentation of this somewhat troublesome case.

Released: January 8, 2015

Signed: "Justice F.L. FORSYTH"