Court File and Parties

Ontario Court of Justice

Date: 2016-02-08

Court File No.: Peterborough 14-2298

Between:

Her Majesty the Queen

— and —

Shane Dow

Before: Justice S. W. Konyer

Heard on: September 22, October 14, November 3, December 21, 2015, and January 5, 13 and 20, 2016

Reasons for Judgment released on: February 8, 2016

Counsel:

• Mr. F. Schwalm — counsel for the Crown
• Mr. D. O'Neill — counsel for the defendant Shane Dow

KONYER J.:

Introduction

[1] Shane Dow was tried before me on a number of criminal charges that were laid following the breakdown of his domestic relationship with Miriam Ada Cain. These offences are all alleged to have occurred between the dates of January 1, 2012 and October 19, 2014. Specifically, he is charged with:

• Mischief by damaging Ms. Cain's cell phone between January 1 and February 28, 2012;
• Mischief by damaging a second phone belonging to Ms. Cain between January 1 and October 19, 2014;
• Assaulting and threatening to kill Ms. Cain between April 1 and August 31, 2014;
• Forcibly confining Ms. Cain on September 18, 2014;
• Assaulting Ms. Cain on October 11, 2014; and
• Forcible entry to the property of Julia Cain, the mother of Miriam Ada Cain, on October 19, 2014.

[2] Ms. Cain and Mr. Dow were involved in a domestic relationship beginning some time prior to 2008. They lived together for several years and produced a son, Linden, who was three years old when their relationship ended in 2014. At trial, Ms. Cain testified that Mr. Dow was physically and verbally abusive throughout their relationship, that he assaulted and threatened her on numerous occasions beyond those which are the subject of this trial, and that he destroyed or damaged several cell phones belonging to her during their relationship. Mr. Dow, who testified in his own defence, denied these allegations. I must decide whether the Crown has proven, beyond reasonable doubt, that Mr. Dow committed any of the offences before me. In order to do so, I must assess the credibility of the primary witnesses, Ms. Cain and Mr. Dow.

[3] Of course, a criminal trial is not a credibility contest. The issue is not whether I prefer the evidence of Ms. Cain or Mr. Dow, but rather whether I am satisfied beyond reasonable doubt on the basis of the evidence I do accept that Mr. Dow committed any of the offences before me. In considering the evidence and making findings of credibility, I must bear in mind the domestic context in which these matters arise, which can assist me in understanding the evidence. For example, the nature of the relationship may explain why Ms. Cain failed to report the allegations in a timely manner, or why she chose to remain in an abusive relationship. At the end of the day, however, the burden on the Crown remains the same as in any criminal trial – proof beyond reasonable doubt.

[4] Since this is a case which turns upon findings of credibility, it is necessary to review the evidence in some detail. I will begin by summarizing the relevant facts, particularly as they relate to the six separate incidents where Mr. Dow is charged. Then I will turn to an analysis of the evidence, including an assessment of the credibility of the witnesses who testified, and reach conclusions based on the evidence as it relates to the individual charges before me.

Summary of the Relevant Facts

[5] Ms. Cain and Mr. Dow began a domestic relationship some years ago, on a date which was never firmly established in the evidence. What I do know is that Ms. Cain first became an OPP officer in 2008. Prior to that, she worked at a tanning salon, which is where she met Mr. Dow. They both lived in Peterborough at the time their relationship began, though Ms. Cain was stationed for a brief time in Owen Sound after joining the OPP. She later transferred to the Peterborough detachment. Throughout their relationship, Mr. Dow worked for Hydro One out of Bancroft, Ontario. Early in their relationship, they purchased a home together at 2190 Cameron Line in the town of Keene, a short distance southeast of Peterborough.

[6] Ms. Cain testified that Mr. Dow was verbally and physically abusive throughout most of their relationship. According to her, they argued frequently and he would often lose his temper and assault her, which most often took the form of him grabbing her by the head or face. Although she knew that his behaviour was wrong, and in fact was criminal, she explained that she felt trapped because of her job as a police officer, and therefore took no steps to report the abuse. She felt that her colleagues would think less of her if they believed she had allowed herself to become a victim of domestic violence. Policing is a demanding field, and officers rely heavily on one another for protection and safety. Ms Cain believed that she would be compromised in the minds of other officers if they knew about the abuse she was suffering at the hands of Mr. Dow.

[7] In addition, she explained how she would feel compromised in her ability to carry out her duties as a police officer if it became known that she was an abuse victim. Ms. Cain explained how, as a police officer, she was looked upon to protect victims of crime, and how she felt that she might be perceived as less able to fulfil this role if she herself was seen as a victim. Put more simply, she felt she needed to be seen as strong in order to be an effective officer, and she was afraid of being perceived as weak if her own victimization was made public.

[8] In her own words, Ms. Cain explained her reasons for remaining in the abusive relationship, and for not reporting the abuse, as follows:

It's so embarrassing, like I am the police, why am I calling the police, like I – it's embarrassing to be the one that's supposed to enforce stuff and give people advice and advise them on what's wrong and what they should do in those scenarios and to be on the inside and not – not know how to do it yourself. If I called – if I ever called the police from our residence, it was my co-workers that were going to show up, my people I work with on a daily basis that would be coming to the house. That's embarrassing. Like these people expect you to be strong and know what's right and wrong and you know, be their back up and here I am feeling that I'm going to look weak if I have to call for help and if I can't deal with him on my own, it's embarrassing. And then because of the job like I know what the court process is all about. Like I know that things get dragged on for a long time. One of my worst fears about knowing what happens in domestic occurrences is C.A.S. involvement and that I never wanted to put my family or put Linden through that, like it sounds silly now, because – I just didn't want to be involved and be in C.A.S.'s like database. I didn't want – I knew as soon as – if police ever did get involved they would be – it became – it was the gossip around the office you know, like it's embarrassing. Like people think – like in my opinion people think that in a domestic situation they would think a cop would never be in that kind of situation cause they would know it was wrong or they wouldn't put up with that stuff, but for me it was the opposite. It was like because I knew what would happen if I ever called for help, or if I ever told someone what happened like I knew what the consequences were.

[9] This context is crucial to understanding the evidence I have heard about the relationship between Ms. Cain and Mr. Dow, particularly as it relates to the reasons why Ms. Cain did not disclose the alleged abuse in a timely manner, the reasons why she chose instead to secretly preserve evidence of the abuse inflicted upon her, and the reasons why she was reluctant to cooperate with the police when her mother eventually called 911 following the last incident.

[10] The police investigation into these matters began on October 19, 2014, following a 911 call placed by Ms. Cain's mother, Julia Cain, from her home in the city of Peterborough. Ms. Cain and her son Linden had been visiting her mother that day when Mr. Dow came to the home. An argument erupted and police were called by Julia Cain. Ada Cain was interviewed by members of the Peterborough Police Service that day, and provided limited information relating mostly to the events of that day. On October 31, 2014, Ms. Cain was interviewed by O.P.P. officers (since the home she and Mr. Dow had shared fell within O.P.P. jurisdiction) and she disclosed further information about their relationship which gave rise to the remaining charges before me. It is important to understand this history in order to properly assess the significance of evidence which was lost due to the passage of time between the incidents complained of and the commencement of the police investigation into those incidents.

[11] I will now summarize the evidence chronologically as it relates to the individual charges before me.

i) The Esso Incident

[12] This incident forms the basis of count 1 on the Information, which alleges that Mr. Dow committed mischief by destroying a cell phone belonging to Ms. Cain between January 1 and February 28, 2012.

[13] Ms. Cain testified that Mr. Dow destroyed a total of between three and five cell phones belonging to her during the course of their relationship, but that she was only able to provide specific information about two such incidents. On the date of this incident, she was on duty as an O.P.P. officer. She and Mr. Dow had been having an ongoing argument. He had been pestering her to meet and talk, which she refused to do. She left work in her own personal car, but still wearing her work-issued shirt and pants. Mr. Dow followed her from work in his own vehicle, driving in an aggressive manner. For safety reasons, she pulled over into an Esso gas station parking lot just outside of the city of Peterborough.

[14] She testified that Mr. Dow approached her vehicle and began arguing with her. She did not get out of her car because she was still dressed as an O.P.P. officer and did not want to be seen engaged in a heated domestic argument in a public place. At some point Mr. Dow reached inside her car, grabbed her cell phone and smashed it on the pavement.

[15] Ms. Cain was unable to be specific about a date for this incident, other than that it occurred in 2012 or 2013 in the spring or summer. She said "it was definitely like not winter, there was no snow or anything. It was – happened in the spring or the summer."

[16] Ms. Cain testified that Mr. Dow bought her a new phone after this incident. At some point during their relationship, they both agree that they obtained a joint contract for both of their personal phones through Wireless Wave under the name of Dow Holdings, a company owned by Mr. Dow as a side business. This was done in order to save money.

[17] Mr. Dow agreed that there was an incident where he and Ms. Cain met in the Esso parking lot, and that her cell phone was damaged. He denied following Ms. Cain from work, and said that they simply met at this location when she was driving home from work as he was driving into Peterborough from their home. They each pulled into the parking lot, parked next to one another and rolled down their respective windows in order to talk. At some point Ms. Cain got out of her car, and her phone accidentally fell to the ground, causing damage to the screen. He agrees that he paid to have the screen replaced "because I felt responsible because I was – I just felt responsible for it, so it was just, I ended up replacing it."

[18] Mr. Dow did not articulate a reason why he felt responsible for the accidental damage to the screen of Ms. Cain's phone, saying only that paying for the damage was "more of just a good thing to do, a good gesture." Neither party could be sure whether this incident occurred before or after the start of the joint service contract with Wireless Wave, and no receipt was produced to document the repair or replacement of this phone.

ii) The Woodstove Incident

[19] This allegation concerns the destruction of another cell phone belonging to Ms. Cain. She claims that, during the course of a heated argument inside the residence at 2190 Cameron Line, Mr. Dow grabbed her phone from her hand and threw it inside an active woodstove. Ms. Cain explained that "whenever we got in an argument he would always want to know where my phone was. He wouldn't want me having access to being able to call or text somebody. There was also on occasion when I would try to put my phone on an audio recording, knowing that what was happening was wrong, I'd think enough to try to do that."

[20] This incident happened during the winter of 2013-14, according to Ms. Cain, though count 2 on the Information specifies a time period between January 1 and October 19, 2014. Ms. Cain could not say whether this incident occurred in late 2013 or early 2014.

[21] Although the phone was destroyed, Ms. Cain described how she collected the remnants the following day, after Mr. Dow left the residence. She said that "because of my profession I know that that was wrong. I know it's something I would've encouraged any civilian to report, but I knew enough to keep it and I put it in a zip-lock bag and it was in my locker at work for a year. I guess I kept it as kind of a reminder." That object is now Exhibit 4 at this trial. I cannot discern from examining Exhibit 4 whether it is the charred remains of a phone, but it does appear to be a piece of melted plastic consistent in size with a typical cell phone. The Crown did not call evidence of any analysis of this object.

[22] For his part, Mr. Dow simply denies that any such incident occurred. He denies ever grabbing Ms. Cain's phone from her, an occurrence which she says was commonplace during their arguments.

iii) The Handgun Threat

[23] The third incident chronologically is an allegation by Ms. Cain that Mr. Dow assaulted and threatened her on a date between April 1 and August 31, 2014. This incident forms the basis of counts 3 and 4 on the Information. Ms. Cain could not be precise on the date of this incident, other than describing it as "one of the more recent occurrences that had occurred between the two of us and I knew it was during warmer weather, so it happened anywhere between April and August of 2014."

[24] She described an incident where she and Mr. Dow argued at night in their residence on Cameron Line. She tried to put an end to the argument by retreating to the spare bedroom to sleep. Mr. Dow wanted to continue the argument and entered the spare bedroom after Ms. Cain had lay down in bed. He came onto the bed, grabbed her by the head with one hand, while making a gun-like gesture with the fingers of the other hand. According to Ms. Cain, he then shoved his fingers in her mouth and said "I wish this was a real gun because I would kill you."

[25] The incident ended when Ms. Cain "freaked out" on him for his actions, at which point she claims that Mr. Dow "tried to play it off like he was joking." For his part, Mr. Dow simply denies that any such incident occurred.

iv) The Driveway Incident

[26] On September 18, 2014, Mr. Dow is charged with unlawfully confining Ms. Cain. The alleged confinement occurred in the driveway of the Cameron Line residence roughly between 5:00 and 5:30 a.m., when Ms. Cain claims that Mr. Dow blocked her car in the driveway with his own car and prevented her from leaving. She also claims that he attacked her vehicle while she sat in the driver's seat, striking the window with his hands and a hockey stick.

[27] On this date, each of them was scheduled to work – Mr. Dow at the Hydro One station in Bancroft, roughly 115km from the family home beginning at 6:30 a.m., and Ms. Cain at the Peterborough O.P.P. detachment beginning at 6:00 a.m. They had developed a routine by this time whereby Ms. Cain, who had the shorter drive to work, would drop off 3 year old Linden at a private daycare operated by Donna Peacock at her residence, a 15 minute drive from 2190 Cameron Line.

[28] The typical routine for Ms. Cain was to leave home at around 5:00, arriving at Ms. Peacock's at about 5:15. This would allow her to settle Linden, who was usually still asleep, and make the drive of approximately 25 minutes to the Peterborough O.P.P. detachment. Ms. Cain liked to arrive earlier than the 6:00 start of her shift. The typical routine for Mr. Dow was to also leave home at around 5:00 in order to make the drive to Bancroft which would normally take about an hour and twenty minutes. This would allow him time to purchase a coffee at the Tim Horton's in Bancroft and arrive at work on time.

[29] On this date, however, Ms. Cain did not arrive at Ms. Peacock's until 6:00 a.m. Ms. Peacock testified, and recalled that Ms. Cain called her at about 5:15, which would have been her normal arrival time, to say that she was running late. She called back about 10 minutes later and said "I can't get out, he's got me blocked in, he won't let me out." Ms. Peacock could tell from her voice that Ms. Cain was upset. Ms. Peacock records the arrival time of the children at her daycare on a wall calendar. She does this in order to ensure that she bills properly for her time, and she marks the arrival time within 5 minute increments. Exhibit 5 is Ms. Peacock's 2014 calendar. According to her calendar and her testimony, Ms. Cain arrived with Linden on September 18, 2014 at 6:00 a.m.

[30] Ms. Cain testified that the night before, she and Mr. Dow were engaged in what she described as a verbal domestic argument, which by that point had become an almost daily occurrence. Mr. Dow wanted to continue the argument late into the night, and Ms. Cain eventually retreated to the spare bedroom to get away from him and in order to sleep. The following morning, they both got up at their normal time of 4:30 a.m., and Mr. Dow again wanted to continue the argument. He followed her around the house, insisting that they needed to talk as she tried to get herself ready for work and to get Linden ready for daycare.

[31] When she continued to ignore him, Mr. Dow followed her to her car, pleading with her to talk. Instead, she continued with her routine and eventually both she and Linden were inside her car. Mr. Dow then used his own car, a Honda Civic, to block her car in the driveway. At the time, Mr. Dow owned two vehicles, the Civic and a Dodge pickup. When Ms. Cain refused to get out of her car or roll down her window to talk, Mr. Dow began pounding on the window, using his fists and a hockey stick which he retrieved from the garage.

[32] The standoff in the driveway continued for about half an hour. It ended when Mr. Dow noticed her on the phone as she placed the second call to Ms. Peacock. He then got in his Civic and left in a hurry. Ms. Cain estimates that it was around 5:30 when she was finally able to leave the driveway.

[33] At various points while she was driving between the Cameron Line home, Ms. Peacock's home, and the Peterborough O.P.P. detachment, Ms. Cain testified that she was receiving phone calls from Mr. Dow which she ignored. She also received text messages from Mr. Dow, including one where he said he damaged his Civic by colliding with his pickup truck when he raced out the driveway. Ms. Cain later saw damage to the trunk of the Civic.

[34] Again, Mr. Dow denies that this incident occurred. He acknowledges that they were arguing the night before. The argument was over a document from a family lawyer that Mr. Dow had recently consulted, which Ms. Cain found in the pickup truck. On the morning of September 18, however, there was no further argument. He got up and left as normal by 5:00. He saw Ms. Cain only briefly, when she complained that he had not woken her, causing her to be running late. He did not block her in the driveway, and he did not strike his pickup truck when leaving the driveway. Mr. Dow produced photos of the Civic and the pickup truck, which he says were taken by a local photographer on an unknown date in 2015. From these photos, Exhibits 10A, 10B, 11, and 12, it is clear that had the rear of the Civic struck the front bumper of the pickup truck as alleged by Ms. Cain, the point of impact on the Civic would have been to the trunk somewhere above the bumper. There is no visible damage to the trunk of the Civic in the photos.

[35] Mr. Dow testified that he and Ms. Cain routinely spoke to one another by phone as they were each driving to work, but cannot recall any specific conversation that they would have had on September 18, 2014. He does not think they would have exchanged any text messages because both phones had Bluetooth capability, allowing them to talk safely while driving, thus making it unnecessary to text one another.

[36] I received phone records from Wireless Wave for Mr. Dow's phone number on September 18, 2014. They show a series of calls between Mr. Dow's cell phone and Ms. Cain's cell phone that morning. Specifically, the records show the following:

• 05:40:48 Call from Dow to Cain lasting 0:13
• 05:45:45 Call from Cain to Dow lasting 0:54
• 05:51:26 Call from Dow to Cain lasting 0:24
• 05:54:27 Call from Dow to Cain lasting 7:34

[37] I also heard evidence from Leslie Fitzgerald, a Legal Compliance Associate with Bell Canada Corporate Security. She was responsible for producing records in compliance with a Production Order obtained by police for Mr. Dow's phone records, which is now Exhibit 6. She explained that the records include a listing of calls made and received, as well as text messages sent and received. There is no record of text messages between Mr. Dow's phone and Ms. Cain's phone on September 18, 2014, though there is a record of text messages between Mr. Dow's phone and other phone numbers on that day.

[38] On consent, the Crown also produced a report from Detective Sergeant Kelly Anderson of the O.P.P., which is now Exhibit 8. Det. Sgt. Anderson is an expert in the areas of digital forensics and data recovery, including data from cell phones. His report explains that iMessages do not constitute text messages for billing purposes for companies like Bell Canada, since they are free of charge to iPhone users. Since both Mr. Dow and Ms. Cain were iPhone users on September 18, 2014, it is therefore possible that electronic messages were sent from Mr. Dow's phone to Ms. Cain's phone as she alleges by way of iMessaging. If this were the case, then the messages would not be captured in the Bell Canada records. Ms. Cain was not recalled to clarify whether the messages which she described in her testimony as text messages were in fact iMessages.

[39] The Bell Canada records for Mr. Dow's phone produced pursuant to the Production Order also show the cellular tower site on which outgoing calls originate, as well as the cellular tower site on which incoming calls terminate. These are given a code number. Ms. Fitzgerald also produced a cellular tower site chart, Exhibit 6, which provides locations for the cellular tower site codes listed in Mr. Dow's phone records. Using this chart, the first call placed by Mr. Dow to Ms. Cain at 5:40 a.m. originated at a cellular tower located at Highway 7 and Highway 28. The second call, from Ms. Cain to Mr. Dow at 5:45, terminated at a cellular tower site located at 1632 Chemong Road, Peterborough, which is north of the first tower. The third and fourth calls, from Mr. Dow to Ms. Cain at 5:51 and 5:54, both originated at a cellular tower site located at 1843 Preston Road, Lakefield, which is further north of the Chemong Road tower.

[40] Mr. Dow testified that the route he took from his home at 2190 Cameron Line took him west a short distance on Highway 7 and then north on Highway 28 all the way to Bancroft. He produced a Google Map showing this route, which has been filed as Exhibit 9.

[41] I also heard evidence from Lyle Coughlin, a manager at Hydro One. He manages the offices in Bancroft and other locations. He produced employment records for Mr. Dow which showed that he was paid for a full 10 hour day on September 18, 2014. Mr. Coughlin explained that the workday ran from 6:30 a.m. until 5:00 p.m., with a half hour unpaid lunch. If Mr. Dow had been late arriving for work that day, he would expect that the records would reflect less than 10 hours worked. Mr. Coughlin, however, was not in the Bancroft office on September 18, 2014. If he had been he would have been present at the daily meeting which commenced at 6:30. If Mr. Dow had not been present on time, he would have noted this fact. Because Mr. Coughlin was not in Bancroft that day, however, this responsibility would have fallen to Dwayne Unger, the union trade supervisor. Mr. Unger was not called as a witness.

[42] Mr. Coughlin also explained that in the event an employee was running late, he or she was expected to call their union trade supervisor to alert them of this fact. Mr. Coughlin identified a phone number which appears in Exhibit 3, Mr. Dow's phone records, as belonging to Dwayne Unger. Those records show that Mr. Dow placed a call to Mr. Unger on September 18, 2014 at 6:03 a.m. for 30 seconds. This call originated at a cellular tower site located in Woodview, Ontario, which lies along Highway 28 north of Lakefield, roughly halfway in between Highway 7 and Bancroft.

[43] Ms. Cain testified that this incident on September 18, 2014 was the last straw for her in the relationship with Mr. Dow. For her, the relationship effectively ended as of that date, and she moved out of the Cameron Line home for the most part. She stayed with family and friends in and around Peterborough, though she did stay at the Cameron Line home sometimes after this date. As I understand the evidence, they had a shared custody arrangement for Linden, and she would often stay at the Cameron Line home when she had care of Linden in order to maintain some sense of stability in his life.

v) The Thanksgiving Weekend Incident

[44] Count 6 on the information alleges an assault by Mr. Dow against Ms. Cain on October 11, 2014, which was the Saturday of Thanksgiving weekend. Ms. Cain testified that she had custody of Linden that weekend, though she was scheduled to work from 6:00 a.m. to 6:00 p.m. on both the Saturday and Sunday. Mr. Dow had care of Linden while she was at work. She stayed at the Cameron Line home that weekend.

[45] According to her evidence, both Linden and Mr. Dow were home when she returned after her shift on Saturday evening. They got into an argument after Linden went to bed, and Mr. Dow asked her to leave. When she agreed and began to pack her things, he changed his mind and asked her to stay. She declined, and he ended up following her outside to her car. He grabbed her by the face and "he put his hands in my mouth and he pulled down or pushed down as hard as he could with his fingers, like under my tongue." The parties both agree that Mr. Dow is significantly larger than Ms. Cain, and that he is very strong due to the physically demanding nature of his work and his interest in working out in his spare time.

[46] Ms. Cain testified that Mr. Dow then pulled her around her car and threw her against the side of the car. She tasted blood in her mouth, as he still had one hand forcefully inserted inside her mouth. He pushed her down on the gravel driveway by the head, and then dragged her by the hair from the car back into the garage. When she was dragged she could feel her back scraping on the gravel. He demanded her car keys and cell phone, but was unable to find them. He let go of her hair but would not leave her side, in her mind because he was afraid she would leave or contact someone for help using her phone.

[47] They moved then from the garage to a point outside the home, which had a stone exterior. Ms. Cain testified that "now he's slamming my head into the stone of the house." He kept demanding that she return inside the house. She said that "my mouth was so full of blood I was leaning over spitting out blood from when he had put his hands in my mouth…. At one point, with him pleading for me to come in the house, he kicked me like in the shin I believe as hard as he could, cause I was on the ground and he was standing above me." She eventually relented and returned inside the house. Mr. Dow took her clothing, which was stained with blood from her mouth, and washed it.

[48] As a result of this assault, Ms. Cain had significant bruising on her leg from being kicked, scratches to her back from being dragged on the gravel, and severe injuries to the inside of her mouth. "It was extremely swollen, purple, purple and red. For two days after that I couldn't talk properly and I couldn't – I couldn't even eat anything solid. I was like eating soft foods for two days because it hurt so much, my tongue hurt to move it." She called in sick for her shift the following morning, Sunday, because she did not want to have to explain her injuries to anyone. She did, however, accompany Mr. Dow and Linden to a nearby fair in the town of Norwood on Thanksgiving Monday, because this had become a family tradition that she did not want to miss. She did not seek any medical attention for her injuries, which healed on their own after about two weeks. Ms. Cain did not describe any injuries to her head from being smashed into the stone wall on the outside of the Cameron Line home.

[49] Ms. Cain testified that she took photographs of the injuries to her mouth from this incident, using her phone. "I did look at it and I actually had taken pictures of it, but they were pictures that were on one of the cell phones that Shane had broken, so I don't have those pictures anymore".

[50] Mr. Dow denied that this incident occurred at all. He testified that he went to his parent's farm on Thanksgiving weekend, which is located about 1.5 km from the Cameron Line home. He had Linden with him. He spent both Saturday and Sunday working on the farm splitting wood for his parents use during the coming winter, and said that both he and Linden slept at the farm on both Saturday and Sunday night. He simply was not at the Cameron Line home, and did not assault Ms. Cain in any manner whatsoever. His parents were not at the farm that weekend because they travelled to Mont Tremblant for a family reunion with members of his step-father's family.

[51] Mr. Dow's sister, Shannon Dow, testified that she also stayed at the farm that weekend with her two boys. She keeps horses at the farm. On both the Saturday and Sunday, she gave riding lessons and looked after all three children while Mr. Dow worked. After dinner on Saturday evening, Mr. Dow passed out from exhaustion on the living room couch. She produced a photo which she took of Mr. Dow sleeping, as the boys intended to draw on his face as a gag and she intended to take before and after photos. However, the boys ended up playing in the hot tub, watching a movie and going to sleep, and never did draw anything on Mr. Dow's face. She produced photos which she took of her boys and Linden playing in the hot tub that night. These photos are all date-stamped Oct 11, 2014, though there is no independent evidence confirming the reliability of the date-stamp. Shannon Dow testified that her brother remained asleep on the couch when she went to bed for the night, and that on Sunday morning she found him asleep on the same couch, wearing the same clothes.

[52] Mr. Dow's mother, Debra Dow, also testified and confirmed that she and her husband were away from the farm at Mont Tremblant on the Thanksgiving weekend.

[53] The Crown called Joe Giles in reply, a farmhand who worked on the Dow's parents farm from time to time. He said that he worked there three consecutive weekends in the fall of 2014 splitting wood with Mr. Dow, including the Thanksgiving weekend. He provided an affidavit to Mr. Dow's counsel several months after the weekend in which he stated that Mr. Dow's parents were not present on Thanksgiving weekend. In a subsequent interview with police after Mr. Dow's alibi for this weekend was disclosed to the prosecution, he stated that Mr. Dow's parents were present at the farm on the Thanksgiving weekend. At trial, he recalled knowing that there was a weekend where Mr. Dow's parents went away for a family function, and was unsure whether this was the Thanksgiving weekend or not. In any event, he agreed that Mr. Dow was present during the day on Thanksgiving Saturday and Sunday splitting wood, though he left after work and could not vouch for Mr. Dow's whereabouts during the evening or night.

[54] I also heard testimony from Scott Wasson and Katie Hawley, who both interacted with Mr. Dow and Ms. Cain at the Norwood Fair on Thanksgiving Monday, two days after the alleged assault. Both testified, in essence, that Ms. Cain appeared normal – she spoke to each of them without any apparent difficulty and appeared to be in good spirits.

vi) The Incident at Julia Cain's Home

[55] The last incident which occurred between Mr. Dow and Ms. Cain, and which led to the police becoming involved and laying charges, occurred on October 19, 2014, one week after the Thanksgiving assault is alleged to have occurred. This incident occurred at the home of Ms. Cain's mother, Julia Cain, in Peterborough, and forms the basis for the charge of forcible entry in Count 8.

[56] Ms. Cain testified that she was not working that weekend, that she was staying with Linden at her mother's home in Peterborough, and that she received a text message from Mr. Dow stating that he wanted to meet with her. She responded, telling him that she was at her mother's home. Because Mr. Dow did not get along with her mother, she assumed that he would leave her alone.

[57] She was sitting in the living room, having a conversation with her mother. A short time after the text exchange with Mr. Dow, she heard the front door being opened and a male voice calling out a greeting. Linden then came running into the living room, "saying it was daddy". Shortly after, Mr. Dow appeared in the living room, where he made small talk with Ms. Cain and her mother, including asking after her mother's new dog. He then asked Ada Cain to come outside and talk to him. According to her, "I knew that us talking or getting together wasn't going to go anywhere in a positive direction because he would be asking to keep trying to work on the relationship and I didn't want that."

[58] Ms. Cain's mother, Julia Cain, testified that while she was in the living room with her daughter, she heard a knock at the front door. She stood up to answer the door, but by the time she had walked a few steps to the front hallway, Mr. Dow was already inside the home. She did not recall Linden saying "it's Daddy", but agreed that this was possible. She did not recall any discussion between herself and Mr. Dow about her new dog, but agreed that this was also possible. From what she recalled, Mr. Dow appeared angry and was insistent on talking with her daughter outside.

[59] Both Ms. Cain and her mother testified that no one enters this home without permission except for those people who actually live there. Julia Cain said that when "[m]y own children […] and my mother, come to visit, it's just customary that we knock at the door before entering as I do when I go to visit them." Julia Cain also described her relationship with Mr. Dow as distant but civil.

[60] For his part, Mr. Dow testified that he'd had an agreement to meet with Ms. Cain this day, a Sunday. Since their separation, they had maintained contact and had been to see their family doctor to discuss their relationship. The doctor had apparently recommended they see a family counselor. Ms. Cain wanted to see a counselor, but Mr. Dow said he was reluctant. They had last discussed the issue two days before, on the Friday, just before Mr. Dow left town to visit a friend in Barrie for the weekend. He had apparently promised to give the matter some thought and they had agreed to discuss the issue further when he returned on Sunday.

[61] On Sunday, Mr. Dow said he knew that Ms. Cain would be taking Linden to swimming lessons in Peterborough at a location near Julia Cain's home, and that she planned to go her mother's home after the lesson. According to him, Ms. Cain had asked him to meet her there on Sunday to inform her of his decision about whether he was willing to go to counselling.

[62] On arrival at the house, he knocked at the front door, which has a large window. He saw Linden running down the hall towards the door, so he opened the door and stepped inside. He walked down the hall to the living room, had a friendly chat with Julia Cain about her new dog, then stepped out the front door with Ada Cain to have a private conversation with her about the state of their relationship.

[63] Mr. Dow agreed that he had never entered Julia Cain's home on any other occasion without being let in. He was cross-examined extensively about his reasons for opening the front door and entering the home on this occasion. Mr. Dow explained that he did so because he was expected there by Ada Cain, because he had knocked first to announce his presence, because he saw Linden come running to the door, and because in his family, it is common for relatives to enter one another's home when they are expected, after having first knocked to announce their arrival.

[64] It is not disputed that Julia Cain called 911 following an argument outside the home between Mr. Dow and Ada Cain. Cst. York of the Peterborough Police Service was dispatched to attend the address for "a family dispute unwanted male."

[65] Ada Cain said that the outdoor conversation consisted of Mr. Dow begging her to come back to him. When she refused, "[h]e stormed past me, entered back into the residence, and grabbed Linden from the living room, and next thing I know he had Linden and he was running down the laneway to his truck with Linden." She pursued Mr. Dow to his truck, and was able to take Linden back from him. At this point, her mother was at the front door, asking if she should call police, to which Ms. Cain responded yes.

[66] Julia Cain said that she watched her daughter and Mr. Dow argue in the driveway when they left her residence. According to her, Mr. Dow was very loud, while her daughter kept trying to reason with him. She could tell that the argument was about Linden. She described what occurred in the following terms:

I remember him saying that he was going to take Linden – after the argument he was going to take Linden and he came – they came marching back into the house – the two of them, and when Shane came back in the door, he scooped Linden up under his arm and went back down the driveway, opened my door and Ada ran after him and then she turned around and yelled, "Call the police." I quickly grabbed the phone and called the police of what was happening, that he had just come and taken him, and they argued some more, and then they both came back in with Linden. He put Linden down. He had some nasty things to say. He knew I was on the phone.

[67] Mr. Dow testified that he had a lengthy conversation with Ms. Cain in the driveway, which he estimated lasted about half an hour. It ended with them in disagreement about counseling. Mr. Dow was preparing to leave when he saw Linden in the doorway. He walked over, picked Linden up, gave him a hug, passed Linden to Ms. Cain and then left. He did not see Julia Cain when he left, and he did not know that police had been called. By the time Cst. York arrived, Mr. Dow had left the home.

vii) The Police Investigation

[68] When Ms. Cain's mother placed the 911 call on October 19, 2014, this act had the effect of initiating a police investigation into the allegations against Mr. Dow that are now before me at this trial. The responding police officers had very little information to go by upon their arrival, other than a generic description of a domestic incident. When officers arrived at Julia Cain's home, both Julia and Ada Cain were present and were interviewed.

[69] Ada Cain attended at the Peterborough Police Service station later that same day to continue the interview. She works for a separate police service, the Ontario Provincial Police, and is assigned to their detachment in Peterborough. The municipal police service would have had jurisdiction over the October 19 incident at Julia Cain's home, while the O.P.P. had jurisdiction over the home on Cameron Line where the majority of the incidents now before me occurred.

[70] When she was interviewed by members of the Peterborough Police Service on October 19, Ms. Cain was a very reluctant witness. For all of the reasons referred to earlier, she did not wish to disclose the full extent of the abuse she claims at the hands of Mr. Dow. Cst. York described her as uncooperative, as not forthcoming with details, and as someone who could not wait to end the interview. She refused to be sworn or affirmed prior to her interview, an investigative step whose significance Ms. Cain fully appreciated due to her own professional training and experience. Ms. Cain maintained that while she did not deliberately lie to Cst. York, she did not volunteer any information to him either. The majority of the assaults that form the subject of this trial were not disclosed to Cst. York, though he apparently was made aware of allegations that Mr. Dow had broken a number of her cell phones.

[71] I understand that information was relayed to the O.P.P., who then commenced their own investigation. This included an interview with Ms. Cain on October 31, 2014. By that time, Ms. Cain had decided to cooperate with the criminal investigation, and to make full disclosure of Mr. Dow's criminal conduct towards her. She was cross-examined about her failure to provide the police with any evidence corroborating her claims other than melted piece of plastic said to be the remnants of the cell phone burned in the woodstove. In particular, Ms. Cain was pressed about the fact that she was unable to provide copies of the text messages sent by Mr. Dow on September 18 or October 19, or copies of the photos she said she took with her phone of the serious injuries from the October 11 assault.

[72] Ms. Cain initially responded by saying that Mr. Dow destroyed her cell phone, and repeated that he had done so on many prior occasions. She said that she kept photos of injuries from many different assaults on her various phones. She also kept a written record in the form of notes that she would jot to herself using her phone. She did so because she wanted to preserve evidence of his mistreatment of her, and used her phone because it was password protected. She did not copy the notes or photos to their home computer for fear that Mr. Dow would discover them. When he destroyed her various phones, this evidence was all lost.

[73] There is one noteworthy exception. Though it does not form the subject matter of a charge before me, Ms. Cain claims that Mr. Dow assaulted her during a vacation in Mexico in February, 2014. She took a photo of the injuries from this assault using her phone and emailed it to a private email account that she had set up for herself, which was also password protected. This way, that evidence was securely stored in a location separate from her phone. Of this photo, Ms. Cain said "I took that picture the same reason I took the other pictures and tried to keep text messages and everything to remind myself of what had happened, to be able to like remember…. Like I just kept it as a reminder of what – what he had done to me"

[74] When it was pointed out to Ms. Cain that she had made no mention of Mr. Dow destroying her phone after the September 18, 2014 incident, and that therefore all of the text messages and photos from the September 18, October 11 and October 19 incidents would have been available to provide to the O.P.P. investigators during her October 31 interview, she was uncertain at first whether she had her phone with her during the interview. When it was suggested to her that if her phone was with her during the interview she could have provided this evidence to the investigators, she recalled that she did not have her phone with her and agreed that she told investigators that she would retrieve this information after the interview.

[75] When asked why she never provided this information to the O.P.P. investigators, Ms. Cain testified that it was because her son Linden, then age 3, had accidentally locked her out of her phone. She often let him play games on her phone, and when she got the phone back from him on this occasion, she found that her passcode would no longer unlock the phone. After many failed attempts by her to enter the correct passcode, her phone locked her out permanently. The only way to reactivate the phone was for her to call an Apple technician, who walked her through a factory reset of the phone. Unfortunately, this caused the permanent loss of all data stored on the phone.

[76] Ms. Cain was initially uncertain as to when Linden had locked her phone. Eventually, she agreed that this must have occurred after the O.P.P. interview on October 31, since she never mentioned to investigators that this evidence had been lost. If the factory reset had already occurred prior to this interview, she agreed that she would have told investigators of the loss of this evidence. She also recalled taking Linden trick-or-treating that night, and sending Mr. Dow's mother photos she had taken of Linden in his Halloween costume using her phone. Therefore, she ultimately agreed that the phone lock-out must have occurred after the October 31 interview, though she could not specify a date.

[77] The defence called Andrew Burley, an Apple Technician responsible for servicing a large part of Ontario, who performs data recovery on Apple iPhones routinely. He testified as an expert witness on consent, and outlined the steps that would have to occur for an Apple iPhone to become locked necessitating a factory reset.

[78] First, one would need to click on the "Settings" icon on the phone's screen. Typically, there are several pages of icons on an iPhone, depending on the user. Clicking on this icon would bring up a menu. One would then need to scroll down to the fourteenth item on this menu, titled "Passcode" and click on this item. Doing so would have brought up a submenu. One would then need to choose and click on the item titled "Change Passcode" from amongst the seven items displayed. This would prompt the phone to ask one to enter the current 4 digit passcode followed by "Enter". If done correctly, one would then be prompted to enter a new 4 digit passcode. The same code would need to be entered twice followed by "Enter". If all of these steps were completed properly, the passcode would then be changed.

Analysis of the Evidence

[79] Like any person accused of a crime in our system of justice, Shane Dow is presumed innocent. I can only find him guilty if the Crown has satisfied me, beyond reasonable doubt, of his guilt for any of the offences before me, offences which Mr. Dow denies committing. In those circumstances, I must apply the well-known test set out by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397. If I believe Mr. Dow, or if his evidence leaves me with a reasonable doubt when I assess it in light of all of the evidence, I must find him not guilty. Even if I do not believe his evidence and it does not raise a reasonable doubt, I must go on to consider whether I am satisfied of his guilt beyond reasonable doubt on the basis of the evidence that I do accept.

[80] This is a credibility case, meaning that my determination of whether any of the charges against Mr. Dow has been proven depends primarily on how I assess the conflicting testimony I have heard. It is not a simple matter of choosing between competing versions of events, and I may conclude after assessing the evidence that I cannot decide whom to believe on any given issue.

[81] When assessing the evidence of witnesses in this case, particularly the evidence of the complainant, it is important that I bear in mind the domestic context in which these charges arise. Individuals do not always behave according to strict rules of logic where domestic relationships are concerned, and it is important that I consider the entire context when assessing, for example, the reasons for Ms. Cain's non-disclosure in a timely manner as well as her reluctance to cooperate with the initial police investigation.

[82] I must also be careful not to place undue weight on the demeanour of the witnesses as they testified when assessing the credibility and reliability of their evidence. Testifying in court is not a common experience for most people, and different individuals have different abilities to recall and relate events from the witness box.

[83] I intend to make general comments in relation to the overall credibility of the two main witnesses in this case – Ada Cain and Shane Dow. I will then relate my findings of credibility to the individual charges before me in a chronological fashion. In doing so I will comment upon the credibility of other witnesses as the need arises.

[84] With respect to Ms. Cain, I do not draw any negative conclusions about her credibility because of her lack of timely reporting of these incidents. Her failure to report the abusive behaviour, if it occurred, was entirely understandable in her circumstances, particularly given her position as a police officer. It was entirely reasonable for her to be concerned for her professional reputation and ability to carry out her duties as a police officer if these matters were to become known. Her expressed fear that disclosing these matters would cause C.A.S. to become involved in the life of her family is also entirely understandable.

[85] I have also been asked to find that she was untruthful with Cst. York by failing to disclose "severe" abuse to him. One of standard form questions on the domestic violence questionnaire filled out by this officer required him to ask whether there had been any severe violence in the relationship, including specific examples like choking. Cst. York checked off the answer to this question given by Ms. Cain negatively. In cross-examination, Ms. Cain agreed that the assault she says occurred on Thanksgiving weekend was severe.

[86] While I accept that she did answer this question in the negative, I do not place much weight on this fact in the entire context of the case. When she was interviewed by Cst. York, Ms. Cain had been drawn into a police investigation against her will, as a result of her mother's call to 911. She had been resisting this step for some time for the reasons referred to earlier. She was clearly looking to end the interview with Cst. York as quickly as she could, while saying as little as possible. I accept that her answer to Cst. York's question was not a considered response, and I do not draw any negative inference with respect to the credibility of Ms. Cain due to the inconsistency between this answer and the level of violence she says was perpetrated upon her.

[87] Where I do have grave concerns about Ms. Cain's credibility, however, is with respect to the absence of physical evidence where one would reasonably expect to find it, and her explanations for the absence of this evidence. It is worth noting that Ms. Cain is a trained police officer who had an appreciation for the importance of such evidence in the event that Mr. Dow was ever charged criminally for his actions. Further, she clearly turned her mind to the issue of collecting evidence of the physical abuse, verbal abuse and property damage she says was inflicted by Mr. Dow. This is why she preserved the charred remnants of the burnt cell phone, and why she took steps to preserve the photo of the injuries inflicted on her during the vacation in Mexico. She made contemporaneous notes to herself and took photos of her injuries using her phone, because it was passcode protected and therefore inaccessible to Mr. Dow. The evidence she collected on the phones was therefore safe from discovery by him.

[88] But Ms. Cain also testified that Mr. Dow had a history of physically destroying her phones, thereby also destroying the evidence she had taken steps to preserve on them. This was a pattern, on her evidence. This is why, according to her, she took additional steps to copy the Mexico photo to a passcode-protected email account, where it was equally secure and would not be lost even if her phone was destroyed again. Yet Ms. Cain took no similar steps to preserve evidence of the assaults or other incidents before me. She claims that she took photos of the significant injuries suffered in the Thanksgiving weekend assault, and those no longer exist. She also claims that she kept text messages on her phone from both September 18 and October 19, evidence that would go a long way to supporting her account of these incidents, but that information no longer exists.

[89] Her explanation for the absence of the important evidence which she herself deliberately preserved on her phone is simply not believable. I cannot accept that the three year old child Linden was responsible for re-setting the passcode on her phone, and I find that Ms. Cain concocted this explanation in an effort to explain why evidence she claimed to have preserved implicating Mr. Dow could not be produced. The fact that she fabricated an explanation for the absence of evidence is an important factor in my assessment of her credibility as a witness generally, and I conclude that I must accordingly approach all of her evidence with caution.

[90] This does not mean that I cannot accept any of Ms. Cain's evidence, but it does mean that I ought to be cautious about doing so, particularly where her testimony alone is the only evidence implicating Mr. Dow. It may be that in some instances her testimony is supported by other evidence such that I can have some confidence in her testimony. In the absence of independent support for her testimony, however, it is my view that it would be dangerous to convict based on her testimony alone.

[91] In relation to Mr. Dow, the Crown urged me to draw a negative inference with respect to his credibility owing to answers he gave to questions about the single conviction on his criminal record. The facts as they emerged on this issue were that Mr. Dow had no record at the time that he was charged with the offences before me, but that he was convicted of breaching his bail conditions while awaiting trial, spent two days in custody, pled guilty and received a sentence amounting to time served. When questioned about this matter by his own counsel, Mr. Dow twice stated that he "had to" plead guilty. Crown counsel suggested in cross-examination to Mr. Dow that he was attempting to minimize his criminal liability by blaming his lawyer or others for his predicament, a suggestion which Mr. Dow repeatedly denied.

[92] In my view, however, it would be unfair to draw an adverse inference about Mr. Dow's credibility from this response. He did not deny that he had committed the offence to which he pled guilty, and his answer is equally consistent with a recognition on his part that he had to plead guilty to this offence because he was guilty and that he had been caught.

[93] I do, however, find that Mr. Dow was not a credible witness on some material matters. Specifically, his evidence that he left his home at 5:00 a.m. on September 18, 2014, the date of the alleged unlawful confinement in the driveway of the home on Cameron Line, is not credible.

[94] It is not disputed that his drive to work from his home to Bancroft would have taken about 80 to 90 minutes, and that he would have needed to leave at 5:00 or shortly after in order to be on time for work at 6:30. Although I have not heard expert evidence about the relationship between the location of cell towers and cell phones when placing calls in this case, I do know that the calls placed by Mr. Dow's phone between 5:40 and 6:00 on this date originated from towers close in proximity to the start of his trip and that the origin of the calls moved northward along his path towards Bancroft during this time. While I cannot say precisely where Mr. Dow's phone was located along his route when these calls were placed, I can draw general conclusions about the movement of a phone along a known route of travel based on the location of originating cell tower signals, even in the absence of expert evidence: see R. v. Ranger, 2010 ONCA 759, [2010] O.J. 4840 (C.A.), at para. 13-17. It is therefore safe to conclude, in my view, that Mr. Dow's cell phone was much closer to his home than to Bancroft when this series of calls began, and that it was moving towards Bancroft over the time span of these calls.

[95] I am bolstered in this conclusion by the fact of the 30 second call placed by Mr. Dow to his supervisor at 6:03 a.m., immediately following the series of calls between Mr. Dow and Ms. Cain. This call originated at a point further north along the path to Bancroft, and I heard evidence that Mr. Dow would have been expected to report any anticipated lateness to his supervisor. The only logical conclusion I can draw from this sequence of events is that Mr. Dow was late leaving for work on September 18, 2014, and that at 6:03 he called his supervisor to alert him of this fact. I conclude that Mr. Dow's testimony on this issue is not credible.

[96] The fact that I find Mr. Dow's testimony not credible in this instance does not mean that his evidence generally should be automatically disbelieved, or that it cannot raise a reasonable doubt. I can of course accept some, none or all of the testimony of any witness. In this case, however, much of Mr. Dow's testimony amounts to bare denials that many of the incidents alleged occurred. The fact that I have made negative credibility findings in relation to Mr. Dow's testimony in an instance where it is capable of being tested against independent evidence means, in my view, that I must approach his testimony in general with some caution. As expressed previously, I have similar reservations with respect to the testimony of Ms. Cain.

[97] Therefore, I have significant concerns relating to the credibility of both Ms. Cain and Mr. Dow. With this in mind, I now turn to my findings of fact with respect to the specific charges before me in this trial.

Conclusions

Count 1

[98] With respect to Count 1, the alleged smashing of the cell phone in the Esso parking lot, I do not believe Mr. Dow's evidence that he simply met Ms. Cain for some unknown reason in this location, and that her phone accidentally fell to the ground during the course of a discussion. His explanation that he paid to repair the phone because he felt responsible for the damage makes no sense if matters unfolded as he says. I prefer the evidence of Ms. Cain that he pursued and confronted her about some matter in dispute between them, and that he smashed her phone in a fit of rage. This, I find, is what probably occurred.

[99] I am unable to be sure, however, because Ms. Cain was not a credible witness generally. I say this because I have found that she was deliberately untruthful about Linden having changed the passcode on her phone, thus accounting for the loss of the evidence she had preserved on the phone. I cannot say whether she concocted the utterly implausible story of Linden's actions because the photos or text messages never existed in the first place, because they did exist and would have contradicted her testimony, or because they were lost for some other reason. What I do know is that her explanation for the absence of this evidence was untruthful. Although unrelated to the Esso incident in Count 1, the issue of what evidence was on her phone at the time she went to police became an important issue at this trial. As a matter of common sense, after having found Ms. Cain to be deliberately untruthful on an important issue, I must approach the remainder of her evidence with caution.

[100] Although I find that Mr. Dow likely damaged the cell phone in the manner described by Ms. Cain in the Esso parking lot, I am not confident enough in her testimony alone to be sure. Accordingly, Mr. Dow is found not guilty on this count.

Count 2

[101] With respect to the alleged burning of Ms. Cain's cell phone in the woodstove set out in Count 2, I accept Ms. Cain's testimony that Mr. Dow threw her phone in the woodstove in a fit of rage, and that she preserved the melted remnants of the phone as evidence of his behaviour. I believe that Ms. Cain made efforts to preserve evidence of Mr. Dow's wrongdoing throughout their relationship, and I find that she did so in this instance by preserving evidence of the destroyed phone.

[102] I do not believe Mr. Dow's bald denial that this incident ever occurred. He is not a credible witness generally. This is demonstrated by his incredible explanation for his offer to pay for the damage to the other phone, and by his demonstrably false testimony about the time he left home on September 18, 2014, the date of the driveway incident. In light of this conclusion that he is simply not a credible witness in general, his mere denial that he ever threw Ms. Cain's phone into the woodstove does not raise a reasonable doubt in my mind.

[103] What enables me to have sufficient confidence in Ms. Cain's version of events in relation to this incident is the existence of physical evidence supporting her testimony. I believe her testimony that Exhibit 4 is the remains of her destroyed phone, and I am satisfied that Mr. Dow wilfully destroyed it in the manner she alleges.

[104] Although I believe that Mr. Dow destroyed a cell phone belonging to Ms. Cain by throwing it in the lit woodstove, I cannot be sure when this occurred. Ms. Cain herself was unsure on the date, believing that it happened sometime in late 2013 or early 2014. The date specified in the Information covers a time period after January 1, 2014 only.

[105] I have a broad discretion to amend any count to conform with the evidence at any stage of proceedings, pursuant to section 601(2). This discretion should only be exercised where the accused is not misled or prejudiced in his defence, and where the amendment can be made without injustice being done: s. 601(4). The Crown has not sought an amendment of this count to conform with the evidence, and I also note that this is a summary conviction prosecution and that the dates that would need to be covered by an amendment in order to conform with the evidence lie well outside the six month limitation period for summary conviction offences. Therefore, this is not an appropriate case to amend the date of the alleged offence, and since I cannot be sure that it was committed within the time frame alleged, I must find Mr. Dow not guilty.

Counts 3 and 4

[106] With respect to the allegations that Mr. Dow assaulted Ms. Cain and threatened her by pointing his hand like a gun in her mouth that form the basis of Counts 3 and 4, I again do not believe Mr. Dow's bald denial of the incident for much the same reasons as given in relation to Count 2. Yet Ms. Cain too has also demonstrated that she is not a credible witness. While I suspect that this incident likely occurred much as Ms. Cain described, I cannot be sure without something more than her testimony alone. I appreciate that I can accept some, none, or all of a witness' evidence, and that there is no requirement in law for corroboration of Ms. Cain's testimony, but in my view her credibility generally has been so damaged that it would be unsafe to convict based solely on her word. Accordingly, I am left with a reasonable doubt, and Mr. Dow is found not guilty on these charges.

Count 5

[107] With respect to the allegation of unlawful confinement in the driveway of the Cameron Line home that form the basis of Count 5, I reject Mr. Dow's account of this incident. His testimony does not raise a reasonable doubt in my mind because his account of leaving the home at around 5:00 a.m. is demonstrably false. It is clear from the independent evidence, including the testimony of Ms. Peacock coupled with reasonable inferences available from the cell phone records, that neither Mr. Dow nor Ms. Cain left the residence at their usual time on September 18, 2014. Instead, I find that they both left sometime after 5:30 a.m., which accounts for Ms. Cain's phone calls and late arrival at the daycare, the proximity of Mr. Dow's cell phone to the beginning of his route during the calls between himself and Ms. Cain, and also accounts for the phone call he placed to his supervisor at 6:03 a.m., presumably for the same reason Ms. Cain earlier called the daycare – because he, like Ms. Cain, was running late.

[108] Ms. Cain says they were both late that day because Mr. Dow had kept her blocked in the driveway for about half an hour while he attempted to continue an argument from the previous night, which is the same explanation she provided at the time to her daycare provider. Unlawful confinement is made out where a person is prevented from leaving a place of their own free will. Total restriction of movement is not required: see R. v. Gratton, [1985] O.J. No. 36 (C.A.), at page 8. If I accept her evidence, it is clear that Ms. Cain was prevented from moving about as she chose for a substantial period of time by Mr. Dow, and that he had no lawful excuse for doing so. In short, if I am able to believe Ms. Cain, then I must find Mr. Dow guilty.

[109] For the reasons previously expressed, I have serious concerns about Ms. Cain's credibility in general. These concerns arise primarily from what I have determined to be a deliberate attempt on her part to mislead me about the existence of physical evidence which would have been relevant to the question of Mr. Dow's guilt. Her explanation for the manner in which data on her phone was lost was preposterous and the only logical conclusion I can reach is that she was being untruthful. In those circumstances, common sense dictates that I must approach the balance of Ms. Cain's evidence with caution. Since I have found her to be an untruthful witness on a material issue, it would in my view be dangerous to convict Mr. Dow based on her testimony alone.

[110] I have considered whether there is any independent evidence available to confirm the testimony of Ms. Cain as it relates to the allegation of unlawful confinement on September 18. The evidence relating to Mr. Dow's cell phone usage does confirm her testimony that neither of them left the house until at least 5:30 a.m. instead of their usual 5:00 a.m. departure time. The testimony of Ms. Peacock, which I do accept, confirms Ms. Cain's testimony that she called Ms. Peacock twice around 5:15 a.m. to explain that she would be late. I accept that in the second call, Ms. Cain seemed to be upset and agitated, and that she explained to Ms. Peacock that she had not yet left home because Mr. Dow was blocking her way.

[111] Ms. Cain's statement to Ms. Peacock explaining the reason why she had not yet left her home is admissible for its truth as res gestae. A contemporaneous declaration made by a witness may be admitted for its truth where the declaration is one which accompanies and explains the relevant act: see R. v. Sheri, [2004] O.J. No. 1851, at para. 107. Here, Ms. Cain's statement to Ms. Peacock accompanied and explained the act of being blocked by Mr. Dow in the driveway. I am satisfied that I can properly consider this statement by Ms. Cain as confirmation of her testimony explaining why she was late leaving her residence on September 18.

[112] I am therefore satisfied that both Mr. Dow and Ms. Cain left their home at 2190 Cameron Line approximately 30 minutes late on September 18, 2014. Although I cannot be sure whether Mr. Dow's car actually collided with his truck when he left, or whether he later sent Ms. Cain text messages to blame her for this, I am sure that he used his car to prevent Ms. Cain from leaving as she claimed. Had this not been the case, there would have been no need for her to place the second call to Ms. Peacock explaining her lateness, and no reason for Mr. Dow's phone to have been in such close geographical proximity to their home a few minutes after the incident ended. Accordingly, despite my reservations with respect to Ms. Cain's credibility as a witness generally, I am satisfied beyond reasonable doubt that she was deprived of the ability to move freely from point to point by the actions of Mr. Dow on this occasion, and he is found guilty on Count 5.

Count 6

[113] With respect to the assault charge arising from Thanksgiving weekend of 2014, set out in Count 6, I am unable to decide where the truth lies. I believe that Mr. Dow worked on that weekend at his parents' farm, and that he spent the nights at the farm. Although it is possible that he drove the short distance to the Cameron Line home on Saturday night and assaulted Ms. Cain in the manner she describes, I have serious reservations about her evidence in relation to this incident. These reservations arise from the fact that her appearance and demeanour two days later are inconsistent with her account of the injuries received, as well as her patently false explanation for the absence of the photographs of these injuries which she herself claimed to have taken. It would be dangerous, in my view, to rely on Ms. Cain's testimony that she was assaulted in these circumstances, and I find Mr. Dow not guilty of this charge.

Count 8

[114] Finally, with respect to Count 8, the charge of forcible entry into the home of Julia Cain, I believe that Mr. Dow knocked to announce his presence, understood that he was expected at the home, and entered when he saw his young son running to the door to greet him. Although his decision to enter before an adult came to the door to open it for him was unwise given the state of his relationship with Ms. Cain at the time, I do not believe he entered the home on that occasion with any malicious intent. For the offence of forcible entry to be made out, the Crown must prove that Mr. Dow entered the home with the intention of interfering with the owner's peaceable possession: see R. v. D.(J.) (2002), 171 C.C.C. (3d) 188. Although a breach of the peace subsequently occurred outside the home following the conversation between Mr. Dow and Ms. Cain, I am not satisfied that he had this intention at the time he entered the home. In reaching this conclusion I am relying on the fact that he announced his presence by knocking, that he engaged in civil conversation with Julia Cain upon his entry to the home, and the fact that he and Ada Cain left the home together to discuss their affairs in private.

[115] The Crown argued that I could find that Ms. Dow committed forcible entry the second time he entered the home to snatch Linden. I cannot be sure, however, that this is what actually occurred. Mr. Dow says Linden came outside before he picked the child up, Ada Cain says Mr. Dow went back inside the home alone while she remained outside, and Julia Cain says that Mr. Dow and her daughter rushed back inside the home together. It is impossible to discern where the truth lies, and I cannot be sure that Mr. Dow even entered into the home a second time. Accordingly, he is found not guilty on this Count.

[116] In conclusion, Mr. Dow is found guilty on Count 5. He is found not guilty on Counts 1, 2, 3, 4, 6, and 8. Count 7 was previously withdrawn by the Crown.

Released: February 8, 2016

Signed: "Justice S. W. Konyer"