Court File and Parties

Court File No.: Halton 14-2198 Date: 2016-08-02 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Michael Da Silva

Before: Justice D.A. Harris

Heard on: January 20, 2016, April 11, 2016 and May 2, 2016

Reasons for Judgment released: August 2, 2016

Counsel:

• Lindsay Bandini, for the Crown
• Jason Dos Santos, for the defendant Michael Da Silva

HARRIS J.:

Introduction

[1] Michael da Silva is charged with assaulting his common-law partner Rowena Plourde, and with assaulting her daughter Victoria Plourde with a weapon, to wit a wine bottle. Both offences are alleged to have occurred in the Town of Milton on August 5, 2014.

[2] He was also charged with breaching a term of his recognizance of bail the next day. However, at the commencement of the second day of trial, Crown counsel sought and was granted leave to withdraw this charge.

[3] These matters were scheduled for trial on January 20 and 21, 2016.

[4] Counsel for Mr. da Silva brought an application, returnable on the first day of trial, seeking to stay these charges pursuant to the Canadian Charter of Rights and Freedoms on the basis that Mr. da Silva's right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter had been infringed.

[5] Crown counsel argued that Mr. da Silva had not complied with the Criminal Rules of the Ontario Court of Justice. More particularly, he did not bring his application before the trial judge at least 60 days before trial. Neither did he file a transcript of his bail hearing. Finally, he did not serve or file his Affidavit of Prejudice in a timely fashion.

[6] Counsel for Mr. da Silva did not dispute these allegations by the Crown. He simply asked to be relieved of the obligation to comply with the Rules on the basis that proceeding otherwise would deprive Mr. da Silva of his right to argue that he was not being tried within a reasonable time as guaranteed by section 11(b) of the Charter.

[7] I dismissed the application, stating that:

In the matter of Michael da Silva, Mr. da Silva faces charges of assault, assault with a weapon and breach of recognizance. Counsel for Mr. da Silva has brought an application to stay the proceedings on the basis that Mr. da Silva's right to be tried within a reasonable time has been infringed. Crown counsel has made what I would call a preliminary objection with respect to my even hearing the application, arguing that there has been a failure to comply with the Criminal Rules of the Ontario Court of Justice. In the particular circumstances of this case, I agree with Crown counsel. The application will be dismissed. In order to enable us to proceed with the trial immediately, I will provide my reasons later. I will indicate at this time that my hope is that this would be within the next 36 hours, but I suspect that at some point, reality is going to set in and that I am going to be indicate to counsel that the reasons will be provided somewhat later.

[8] As it turned out, reality did set in but in a most unexpected fashion. Following the above ruling, we did start the trial. At the end of the day, the trial was adjourned to continue the following morning. That night, I suffered an injury in the form of a broken rib. This left me incapacitated and unable to preside in Court for the next ten days. Coincidentally, counsel for Mr. da Silva was also unable to proceed the next day because of a family emergency. It was sometime later when we were able to schedule April 11, 2016 for the continuation of the trial. We did not finish on that day either. We did complete hearing evidence and submissions by counsel on May 2, 2016. The case was then adjourned to June 29, 2016 for judgment but counsel for Mr. da Silva subsequently brought an application to adjourn the matter further. We then put the case over until August 2, 2016 for judgment.

[9] Accordingly, the following are my reasons for the earlier section 11(b) ruling followed by my reasons for judgment.

The Criminal Rules of the Ontario Court of Justice

[10] The current Criminal Rules of the Ontario Court of Justice came into effect on July 1, 2012. I have set out the relevant portions of the Rules below:

Rule 1.1 Fundamental objective

1.1 (1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.

(2) Dealing with proceedings justly and efficiently includes

(a) dealing with the prosecution and the defence fairly;

(b) recognizing the rights of the accused;

(c) recognizing the interests of witnesses; and

(d) scheduling court time and deciding other matters in ways that take into account

(i) the gravity of the alleged offence,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the accused and for others affected, and

(iv) the requirements of other proceedings.

Duty of counsel, paralegals, agents and litigants

(3) In every proceeding, each counsel, paralegal, agent and litigant shall, while fulfilling all applicable professional obligations,

(a) act in accordance with the fundamental objective; and

(b) comply with

(i) these rules,

(ii) practice directions, and

(iii) orders made by the Court.

Duty of Court

(4) The Court shall take the fundamental objective into account when

(a) exercising any power under these rules; or

(b) applying or interpreting any rule or practice direction.

Transcripts

Rule 2.1(3) If determination of the application is likely to require a transcript, the applicant shall serve and file it with the application in Form 1.

Commentary

Transcripts of court proceedings may be very important to the Court in deciding an application. For example, on an adjournment application the transcript may reveal that a previous adjournment was granted due to the absence of the Crown's witness, and on this occasion it is a defence witness who is unavailable. Transcripts are also important where a party seeks a stay of proceedings due to unreasonable delay under s.11 (b) of the Charter. Where a party requires a transcript, it is important that the procedures for ordering transcripts in the jurisdiction are followed, so that there is sufficient time for the court reporter to produce the transcript for the hearing of the application.

Time for pre-trial applications

2.4 (1) A pre-trial application shall be heard at least 60 days before trial, unless the Court orders otherwise.

(2) For the purposes of subrule (1), pre-trial applications include

(e) applications for a stay of proceedings for unreasonable delay under paragraph 11(b) of the Charter.

(3) An application for a stay of proceedings for unreasonable delay under paragraph 11(b) of the Charter shall be brought before the assigned trial judge.

Times for service

3.1 (1) An application in Form 1 shall be served and filed with proof of service at least 30 days before the date of the hearing of the application.

(2) A response in Form 2 shall be served and filed with proof of service at least 15 days before the date of the hearing of the application.

Exceptions

(3) Despite subrules (1) and (2), the time periods set out in those subrules may be shortened or lengthened ....

(b) by an order of the Court; or

(c) with the consent of the parties, except as described in rule 3.2.

Commentary

Timely notice of applications that are being brought under these rules is essential to the efficient management of trial proceedings. By way of example, if a stay of proceedings is granted for unreasonable delay under s.11 (b) of the Charter, the trial will not proceed, and the time scheduled for the trial will no longer be required. Determination of the application well in advance of the trial date permits the court time to be used for other matters. The general rule is that applications must be served and filed no less than 30 days before the date set for hearing the applications. Subrule 3.1 (3) provides exceptions to this, such as an order of the Court authorizing a different time period.

Power of Court to excuse non-compliance

5.3 The Court may excuse non-compliance with any rule at any time to the extent necessary to ensure that the fundamental objective set out in rule 1.1 is met.

Commentary

It is expected that the parties will be familiar with these rules of court and will comply with them. It is a professional obligation to do so. However, on rare occasions, there may be circumstances that prevent compliance. The Court in its discretion may excuse non-compliance with the rules to the extent required to ensure a fair hearing. Consequences may result from non-compliance, including dismissal of the application without a hearing on the merits.

[11] As I stated earlier, Crown counsel argued that Mr. da Silva had not complied with a number of the rules. More particularly, he did not bring his application before the trial judge at least 60 days before trial. Neither did he file a transcript of his bail hearing. Finally, he did not serve or file his Affidavit of Prejudice in a timely fashion.

[12] Counsel for Mr. da Silva argued that Mr. da Silva should be relieved of the obligation to comply with the Rules on the basis that they were merely procedural and that enforcing them in the manner proposed by Crown counsel would deprive Mr. da Silva of his right to argue that he was not being tried within a reasonable time as guaranteed by section 11(b) of the Charter.

[13] Counsel for Mr. da Silva relied in particular upon comments by the Ontario Court of Appeal in R. v. Blom, which read as follows:

21. Rule 30, requiring notice of Charter applications to exclude evidence, is a procedural rule. Its purpose is to facilitate the fair and expeditious determination of Charter issues by ensuring that neither party is taken by surprise at trial and that both parties have adequate notice of the factual and legal basis for the Charter application. As has been frequently observed, procedural rules are servants not masters. They are servants to the cause of the just and expeditious resolution of disputes. Procedural rules are important, but they are not to be rigidly applied without regard to their underlying purpose. This is made clear by the Rules themselves. Rule 1.04 requires that Rule 30 "be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay". Rule 2.01 provides that failure to comply with Rule 30 is a mere "irregularity" and that even where a rule has not been followed, to the extent possible, steps should be taken "to secure the just determination of the real matters in dispute".

22 These provisions establish that where a procedural rule such as Rule 30 is invoked to foreclose consideration of a Charter issue, non-compliance with the rule is not necessarily fatal to the Charter application. Rather, the trial judge is required to consider and weigh a variety of factors to determine what course of action is required by the purpose of the rule. See R. v. Loveman (1992) supra; R. v. Lavallata (1999), 47 M.V.R. (3d) 236 (Ont. C.J.).

23 Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application. If the inadequate notice does put the opposing party at a disadvantage, the court must consider whether something less drastic than refusing to consider the Charter argument, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay", can be done to alleviate that prejudice. If so, that course should be followed in preference to an order refusing to entertain the Charter application.

[14] So I was very mindful of those comments when I made my decision to dismiss the application to stay proceedings. I was also very aware that the facts in this case are very different than those in R. v. Blom, supra.

[15] The trial dates here were set back on March 27, 2015. The length of the ensuing delay was therefore known to Mr. da Silva then. He had been subject to his terms of release for seven months already and he should therefore have also been aware then of the extent of any prejudice that this delay might cause.

[16] Despite this he did not file his application alleging the infringement of his section 11(b) rights until November 30, 2015, some six months later.

[17] Counsel for Mr. da Silva argued before me that, "Mr. da Silva asked me to do it once he had the funds to do so."

[18] Leaving aside for the moment the question of whether his financial situation would absolve him from complying with the Rules, I note that this fact was not included anywhere in the materials filed, including Mr. da Silva's affidavit. It was therefore not actually in evidence before me. It was certainly not before me in a fashion that could have been tested by cross-examination.

[19] When asked why he had not brought (or at least attempted to bring) the application before me on another day between November 30 and the first trial date, Counsel for Mr. da Silva informed me that, due to other commitments, he would have been unavailable to appear before me on any of those days. This fact too was not included anywhere in the materials filed. It too was not actually in evidence before me. Nor did it address the possibility that other counsel might have been retained to argue the Charter application.

[20] I note further that the Application did not include a request that I excuse the non-compliance with the Rules. It almost seemed that counsel simply assumed that I would do so without a formal request.

[21] The original application did not include an affidavit by Mr. da Silva alleging that he had suffered actual prejudice and the applicant's factum did not refer to any actual prejudice. Then, after Crown counsel filed her materials, which argued, amongst other things, that there was no such material filed, counsel for Mr. da Silva served and filed an affidavit of prejudice. He did this during the week immediately preceding the first day of trial. This too was not in compliance with the Rules.

[22] I note further that, unlike in R. v. Blom, supra, the issue here was not whether Crown counsel was prejudiced by inadequate notice. The issue was whether counsel should continue to be allowed to ignore the Rules which were designed to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently including scheduling court time.

[23] There is a legitimate purpose to requiring that these applications be heard 60 days before the trial. As the Commentary in the Rules states:

if a stay of proceedings is granted for unreasonable delay under s.11 (b) of the Charter, the trial will not proceed, and the time scheduled for the trial will no longer be required. Determination of the application well in advance of the trial date permits the court time to be used for other matters.

[24] Conversely, if the application is dismissed, the trial can proceed on the date scheduled. The trial time is not used up by the Charter application.

[25] Finally, I do not interpret R. v. Blom, supra as saying that counsel for accused people can simply ignore the Rules and that the judges of the Ontario Court of Justice cannot do anything to make them do otherwise.

[26] Counsel did not argue that there was no authority to enact the Rules. He simply argued that I could not enforce them without depriving Mr. da Silva of his right to make full answer and defence.

[27] I held otherwise. It struck me as absurd to suggest that judges of any court are powerless to enforce the procedural rules governing their court. If that were the case, the Rules might just as well not exist.

[28] Accordingly, I dismissed the application.

[29] In doing so, I was mindful of the law with respect to a person's right to be tried within a reasonable time. I have summarized this law in several earlier decisions, but I will do so again.

Section 11(b) of the Charter of Rights

[30] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that, "Any person charged with an offence has the right to be tried within a reasonable time".

[31] The primary purpose of s.11 (b) is to protect the individual rights of the accused to liberty, security of the person and to a fair trial. There is a secondary societal interest in having cases tried on their merits, a matter important to the maintenance of respect for the administration of justice.

[32] This application requires a judicial balancing with an examination of the delay and its evaluation in light of other factors in order to determine whether the delay is reasonable. This balancing requires consideration of:

1. The length of the delay;
2. Waiver of time periods;
3. Reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, (e) other reasons for delay, and
4. Prejudice to the accused.

[33] Having made findings about each of these four factors, the final balancing stage of analysis requires consideration of the societal interest in a trial on the merits.

The Length of the Delay

[34] The total delay in this case was more than 17 months. This delay was of sufficient length to warrant judicial inquiry.

Waiver of Time Periods

[35] The onus is on the Crown to prove or establish waiver. A waiver must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect a waiver will have on these rights. The notion of waiver contemplates a choice has been made between available options. Where no real choice or option exists there can be no waiver. Agreement to a date within the proceedings in question does not constitute waiver where the agreement can be reasonably and fairly characterized as mere acquiescence in the inevitable.

[36] It is the duty of the Crown to bring an accused person to trial. This requires that the prosecution apparatus and the government strive to expedite the trial to minimize the effect that is inherent in delay in the disposition of criminal litigation. There is no constitutional imperative upon the accused to bring himself to trial. The protection of s.11(b) of the Charter is not restricted to those who demonstrate a desire for a speedy resolution by asserting the section11(b) right.

[37] Silence and acquiescence in the face of Crown requests for adjournments or in accepting the trial date that is offered clearly do not constitute waiver.

[38] I was satisfied that there was no waiver in this case.

Reasons for the Delay

[39] Mr. da Silva faces assault and assault with a weapon charges, alleged to have occurred in the context of a domestic relationship. Counsel agreed that this should be a relatively straightforward trial which should not take more than two days.

[40] Having said that, I note that there are certain time requirements inherent in any case. These would include the intake period. This intake process would include such things as obtaining and reviewing disclosure, a Crown/defence resolution meeting, a judicial pre-trial and defence preparation for trial.

[41] In this case, the judicial pre-trial was held on March 27, 2015. Only then was counsel ready to set the dates for trial.

[42] Counsel for Mr. da Silva did not indicate then, or later, when he would have been prepared to actually conduct the trial. That is when the 11(b) clock would have started.

[43] In the absence of any knowledge of that date, I note that the delay between March 27 2015 and January 20, 2016 was just under 10 months.

Actions of the Accused

[44] I did not attribute any delay to the actions of Mr. da Silva.

Actions of the Crown

[45] I did not attribute any delay to the actions of the Crown.

Limits on Institutional Resources

[46] I attributed any remaining delay to the limits on institutional resources in our courts here in Halton. Mr. da Silva was offered the earliest days for trial (within a reasonable proximity of each other) that were available.

Other Reasons for Delay

[47] There were no other reasons for the delay here.

Prejudice to the Accused

[48] Everyone suffers prejudice as a result of being charged. This is inherent in the process itself. The prejudice of concern in the s. 11 (b) analysis is not prejudice associated with the laying of criminal charges but the prejudice arising from the de-lay in processing or disposing of the charges. A court may infer or presume the existence of prejudice or it may be otherwise proven. Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. The inference of prejudice from a very long delay becomes nearly irrebuttable.

[49] In addition, in this case, Mr. da Silva swore an affidavit which was filed in support of this application. In the circumstances of this case set out above, this was never tested by cross-examination. Taken at its highest however, I was satisfied that any prejudice suffered by Mr. da Silva was inherent in the process itself.

[50] Further, I note that, if Mr. da Silva was feeling prejudice as a result of the delay in bringing his case to trial, he could have attempted to end that situation by bringing this application at least two months earlier, as required by the Rules. His failure to do so leads me to doubt Mr. da Silva's sincerity in claiming to have been prejudiced by the ongoing delay. So does the fact that, by bringing his application on the day set for trial, he pretty much ensured that, if the application failed, the trial would not be completed in the time scheduled and any prejudice would continue for an even longer period of time.

[51] After considering all of these factors, I was not satisfied that Mr. da Silva suffered prejudice arising from the delay in processing or disposing of the charges.

Balancing the Societal Interest in a Trial on the Merits

[52] Appeal courts have repeatedly stated that there are societal interests in ensuring that an accused is tried within a reasonable time, in order to minimize the prejudice to the accused and to ensure that they are treated humanely and fairly. There is also a societal interest in ensuring that accused are tried on their merits. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.

[53] In this regard, domestic violence cases certainly qualify as very serious matters.

Analysis and Conclusion

[54] In R. v. Morin, supra, the Supreme Court of Canada stated that "it is appropriate for this Court to suggest a period of institutional delay of between eight and ten months as a guide to Provincial Courts". However, "deviations of several months in either direction can be justified by the presence or absence of prejudice".

[55] This Supreme Court of Canada guideline is neither a limitation period nor a tariff. It is however, an instructive device for measuring the constitutional state of the inventory of cases before the Court. Still, it is necessary to examine the particular circumstances of each case.

[56] I note as well the comments of Code J in R. v. Lahiry, supra that "the Supreme Court of Canada was setting guidelines for short, efficient, high volume summary trials in Morin". He further noted that the trial in Morin took no more than two hours of court time and that modern drinking driving cases bear no resemblance to Morin in that respect. The case of Mr. da Silva does not either. Despite the cooperative attitude displayed by his counsel at the judicial pre-trial, the trial was estimated to require two full days to be completed.

[57] As I stated earlier, the institutional delay in this case would have fallen somewhere just under 10 months. That would have brought it within the guidelines set out in R. v. Morin, supra, even without adjusting those guidelines to reflect the two days needed for this trial or making allowance for when counsel would have been prepared to conduct the trial.

[58] In those circumstances, I was satisfied that it was appropriate to require that Mr. da Silva comply with the Criminal Rules of the Ontario Court of Justice.

[59] For those reasons, the application was dismissed.

[60] In the meantime, on July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan. I note that, at the time of the section 11 (b) application, the time to trial fell, at worst, just below the new presumptive ceiling. On the other hand, the time until the date when the trial was actually completed exceeded the new presumptive ceiling (subject to any of the time being attributed to the defence). I simply mention this while stating that I have not taken it into account for the following reasons. I made my ruling on this issue back on January 20, 2016. These are merely my reasons for that ruling. Secondly, Mr. da Silva never renewed his application on the basis of the further delay in completing the trial. Accordingly, there is no new evidence before me which would permit me to conduct a new analysis pursuant to the new guidelines established in R. v. Jordan, supra.

[61] I will now address my reasons for judgment.

Reasons for Judgment

[62] As I stated at the outset, Mr. Da Silva is charged with assaulting Rowena Plourde and with assaulting Victoria Plourde with a weapon, to wit a wine bottle.

[63] Rowena Plourde testified that Mr. Da Silva struck her in the face with his fist, splitting her lip.

[64] Victoria Plourde and Mohammed Usman Afridi testified that Mr. Da Silva intentionally struck Victoria Plourde with a wine bottle.

[65] Mr. da Silva denied both assaults.

[66] I must therefore consider the instructions provided by the Supreme Court of Canada in R. v. W. (D).

[67] If I believe Mr. da Silva's testimony, I must find him not guilty.

[68] Even if I do not believe his testimony, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty.

[69] If I do not know whom to believe, it means I have a reasonable doubt and must find Mr. da Silva not guilty.

[70] Finally, even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[71] In determining this, I must keep in mind that Mr. Da Silva, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard … falls much closer to absolute certainty than to proof on a balance of probabilities".

[72] This is a tough standard and it is so tough for very good reason. As Cory J. said in R. v Lifchus, "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt … is one of the principle safeguards which seeks to ensure that no innocent person is convicted".

[73] I did not believe Mr. da Silva. His testimony did not leave me with a reasonable doubt as to his guilt.

[74] He was a totally unreliable witness.

[75] By his own admission, he was very intoxicated that day. He drank, at the least, most of a 1.5 litre bottle of wine. He was drunk enough that he said that he did things that he would not ordinarily do. He slipped down the stairs, not once but twice. He passed out on the couch.

[76] Constable Jason Muller of the Halton Regional Police testified that Mr. da Silva was intoxicated at the time of his arrest. He was unsteady on his feet. His speech was slurred. He did not comply with the instructions given to him by the police officers.

[77] Mr. da Silva testified that his memory was clear but that there were parts that he did not remember at all.

[78] He was also upset, if not angry at the time. There were things that he and Rowena Plourde needed to discuss. He wanted to talk about them and she refused to do this. She persisted in telling him to go away and leave her alone and slammed the bathroom door in his face. He persisted in coming back and insisting that they talk. She was rude to him and insulted his mother. She insulted his mother in very vulgar terms, essentially calling her a whore.

[79] He testified that despite all of this, he did not know that she did not want to be hugged by him, although he conceded in hindsight that it was not a good idea.

[80] His version of what happened in the bathroom made no sense. He said that while he pressed himself upon her in the small bathroom, she swept or attempted to sweep his legs out from under him with her leg, and she hit him on the chest. He grabbed her arms in order to restrain her. She pulled back. She pulled back too far and fell backwards over the toilet. Both of them lost their footing and he was pulled forward falling on top of her.

[81] His explanation though was not that coherent. His account was replete with "kind of", as in I was "kind of" close to her and "kind of" slipped and fell on top of her.

[82] Somewhere in all of this she hit her lip, probably on the toilet, and she began bleeding.

[83] Frankly his version of what happened struck me as a failed attempt to recreate the events in a fashion that might explain how she came to be injured.

[84] I combine that with the fact that he was intoxicated to the point where he was unreliable as an observer and even more unreliable with respect to his memory, and with the fact that he had tremendous motive to remember things in the way that he related to the court.

[85] After considering all of those factors, I did not believe him and his evidence did not leave me with a reasonable doubt.

[86] That was not the end of the matter, however. I must still determine whether, after considering all of the evidence that I do accept I am satisfied beyond a reasonable doubt of his guilt.

[87] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. da Silva assaulted Rowena Plourde.

[88] I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. da Silva assaulted Victoria Plourde.

[89] I will deal with the assault on Rowena Plourde first.

[90] Rowena Plourde testified that she and Mr. da Silva met in 1999. They started seeing each other around 2000 and began living together probably in 2003. They never married but had one child together. She had two other children, including her daughter Victoria, from another relationship.

[91] She admitted quite candidly that there were a number of difficulties in their relationship.

[92] There was an incident between them in 2009 which led to her being charged with assault and mischief. This was resolved by her entering into a peace bond. She denied being guilty of an offence but admitted that she had thrown a vase at a door which resulted in a dent in the wall. She also pulled the hood of the stove down. She had been drinking.

[93] They also separated around the end of March 2012 and reconciled about six months later.

[94] Their relationship was worsening during the two months leading up to the assault on her. She was as angry with his mother for interfering in their relationship as she was with Mr. da Silva but she was taking it out on him in that she was not communicating with him for the last two weeks.

[95] That day, he wanted to talk to her about their relationship. She did not want to do this and began avoiding him. This degenerated to the point that she announced that she was going to visit her mother and began prepared herself to leave. He tried to be nice to her in order to convince her to stay. She refused. He became more anxious.

[96] After she had showered and done her hair, she went into the bathroom to do her makeup. He followed her into the bathroom. She told him to get out of her face. He lost it and began hitting her. The first blow hit her on the lip, splitting it and causing it to bleed. She fell to the floor and began screaming. He hit her at least one more time but she was not sure of the total number of blows.

[97] She did not recall any contact that she made with Mr. da Silva but conceded that it was possible that she attempted to protect herself after the first punch. She denied suggestions that she had initiated contact with Mr. da Silva or that he had taken hold of her arms to restrain her or that she fell back against the toilet accidentally.

[98] Their son came running and asked his father what he had done. The assault ended then. The duration of the assault was definitely less than a minute.

[99] She called her daughter Victoria from the bathroom and asked her to come and take the boys away. Victoria and her boyfriend Usman came to the house a short time later.

[100] I believed the evidence of Rowena Plourde.

[101] She had not been drinking to the point where her ability to observe and recall events was impaired in any way.

[102] She showed remarkably little animus towards Mr. da Silva even with respect to the assault. I found no motive to fabricate her allegations and she certainly did not overstate them.

[103] She did not call the police. She asked her daughter not to call the police. She did not want to get Mr. da Silva in trouble for what he had done.

[104] She testified that this was the first and only time he had been physical with her. She was the one who had been charged previously and had entered into a peace bond.

[105] She indicated that he was trying to be nice to her in order to convince her to stay and talk their problems out. She was the one who refused to talk. She ignored him to the point where she prepared to leave the house making it impossible for him to try to convince her to talk.

[106] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the complainant's evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.

[107] Her version of events made sense, in stark contrast with Mr. da Silva's story.

[108] So, as I said earlier, I believed her and was satisfied beyond a reasonable doubt that Mr. da Silva assaulted her.

[109] I reached a different conclusion with respect to the alleged assault on Victoria Plourde.

[110] I did not find Victoria Plourde to be a reliable witness. Her evidence at trial and her comments to the 911 operator both made it clear that she was not differentiating between events that she had seen herself and those that others had related to her. She spoke about both with an equal degree of confidence. For that reason alone, I did not find her to be reliable to the requisite degree.

[111] Further, she displayed considerable animus towards Mr. da Silva. She clearly would believe anything bad that she heard about him.

[112] Finally, I found her evidence and that of her boyfriend Usman Afridi to be somewhat confusing and unclear as to what had actually happened. I certainly was not satisfied beyond a reasonable doubt that Mr. da Silva either threatened Victoria Plourde with the wine bottle or that he deliberately struck her with it.

[113] For the above reasons, I find Mr. da Silva guilty of assaulting Rowena Plourde but not guilty of assaulting Victoria Plourde with a weapon.

Released: August 2, 2016

Signed: "Justice D.A. Harris"