Court Information

Date: December 13, 2017

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Joseph Kelly

Counsel:

• L. Collins, for the Crown
• M. Andrews, for the Defendant

Heard: September 20, October 31, and November 10, 2017

Reasons for Judgement

Justice Melvyn Green

A. Introduction

[1] Joseph Kelly and Holly Nelson shared an intimate relationship for about five or six months before renting an apartment together in early March 2016. Their relationship ended on the 29th of the same month with Nelson running from the apartment and calling 911. Two days later she told the police that Joseph Kelly, the defendant, assaulted her. She repeated these allegations in court, testifying that the defendant had slapped her cheek and punched her in the eye. Her face bore signs of physical trauma. The defendant was charged with assault causing bodily harm. He has pled not guilty.

[2] The Crown called two witnesses, both police officers, in addition to the complainant Nelson. While the police testimony helps bracket the incident and is of arguable confirmatory value, only Nelson and Kelly witnessed the critical events – those immediately preceding the black eye and facial bruising Nelson suffered. Accordingly, the case presents as a near-classic "he-say/she-say" in which Nelson alleges the defendant physically assaulted her and the defendant, who testified, attributes Nelson's injuries to her accidental fall as she hurriedly left the apartment.

[3] There is no issue that Nelson's injuries amounted to bodily harm, or that they occurred in the relevant time frame. At issue is whether the defendant assaulted Nelson. As framed by the evidence and representations of counsel, neither consent nor any other lawful excuse for assaultive conduct (such as accidental application of force or prevention of harm to self, others or property) is advanced as a defence to the charge. The defendant, shortly and simply, says he never touched the complainant.

[4] As always in criminal trials, the legal burden, to a standard of proof beyond reasonable doubt, rests on the Crown to, here, establish that the defendant applied physical force to the complainant. Any reasonable doubt in this regard necessarily results in an acquittal.

B. Overview

[5] The complainant Nelson worked as flight attendant for a commercial airline. Typically, she had flight duty for four-day stretches and then returned to Toronto for two or three "off" days before departing on her next multi-day assignment. Although the defendant testified to a number of part-time jobs, it appears that the complainant was then the primary financial contributor to their household. At the time, late-March 2016, they lived together in an open-concept one-room basement apartment. The unit's front door was at the back of the landlord's house and reached by way of a laneway that skirted the side of the house. The couple's relationship was somewhat fraught due to both the defendant's insecurities about the complainant's fidelity while she was away and her doubts about the wisdom of continuing to live with the defendant.

[6] The complainant returned to Toronto's Pearson Airport from Mexico very late on the 28th or very early on the 29th of March. She took public transportation home, stopping very close to her apartment for a couple of beers before returning home.

[7] There is conflicting evidence about the complainant's communication with the defendant during the course of the day. She did not expect the defendant to be home when she got there, and he was not. Nelson says she realized that its contents had been ransacked before she entered her apartment. She had been awakened by the presence of strangers in the apartment sometime before flying to Mexico. Although the exact timing of this earlier disturbance is also a matter of some evidentiary conflict, Nelson says that her recall of the event left her frightened to enter the apartment alone. Instead, she remained outside the unit and called 911.

[8] Members of the Toronto Police Service (TPS) promptly responded. The police entered the apartment to conduct their investigation, including crime scene photographs and efforts to lift fingerprints. Meantime, the complainant remained outside the apartment where she was joined by the defendant as he returned home. Barred from entering during the police investigation, the defendant grew increasingly anxious about the state of his personal possessions as he peered through the crack in the open door. Eventually, the couple was permitted to enter their apartment. Some items were in disarray and there was broken glass and dry (uncooked) pasta on the floor of the kitchen area. However, it was soon clear that nothing of value, including the defendant's musical instruments and a computer, had been stolen or damaged.

[9] The police conducted brief interviews with Nelson and Kelly and then left. Approximately ten minutes later, the complainant again called 911, this time from a street location not far from her home. She was in a near-hysterical state. Coincidentally, the responding officer was one of the policemen who had recently left the apartment. He noticed bruising on the complainant's face; there had been no sign of injury during his earlier attendance. Whatever the cause of the complainant's injuries, they were suffered in the ten-minutes before the complainant's second 911 call.

[10] Nelson declined to answer police questions about the cause of her injuries that morning. She also declined to attend a hospital. She provided a formal statement to the police, incriminating the defendant, two days later, on March 31st.

[11] The testimony of the complainant and defendant is the only evidence pertaining to the crucial minutes between the police departure and Nelson's second 911 call. Resolving the conflict in their accounts is governed by long-settled principles bearing on the assessment of credibility where proof of guilt is, as here, measured against a presumption of innocence. These norms are particularly germane to cases where, as here, the alleged victim and perpetrator each tender patently disparate accounts of the crucial interaction.

C. The Governing Law

[12] As already noted, the resolution of credibility disputes in criminal trials necessarily respects the presumption of innocence. The ultimate question is not which of the contrary accounts is believed or whose evidence is preferred. The question, rather, is whether, at the end of the day, there remains any reasonable basis to doubt the inculpatory force of the prosecution's case – here, the complainant's testimony as buttressed, says Crown counsel, by circumstantial evidence such as the nature of her facial injuries and the distress evident in her voice during her second 911 call.

[13] The rules governing such adjudications in a criminal context are well settled. R. v. W.(D.), [1991] 1 S.C.R. 742, remains the seminal decision. As explained by the Supreme Court in R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9, R. v. W.(D.), "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". To a large degree, this exercise is the meat-and-potatoes work of all criminal trial judges.

[14] The case of R. v. Santos-Medeiros, 2015 ONCJ 396, at paras. 62-65, affords but one example of my several efforts to set out the appropriate analytical scaffolding. The relevant passages – here abbreviated, purged of authoritative citations, and slightly modified to address the contours of the instant case – follow:

[15] An evaluation of the credibility of the two central witnesses is crucial to the disposition of this prosecution. "Credibility" comprehends two distinct facets or dimensions of creditworthiness – honesty and reliability. The former, "honesty", speaks to the truthfulness, sincerity and candour of a witness' evidence while the latter relates more to factors that bear on a witness' perception, memory and communicative capacity. Both considerations impact on the trustworthiness – the accuracy and believability – of a witness' account.

[16] In the end, it matters not that the account of the complainant is preferred or found more probable than that advanced by an accused. The immutable standard is that of proof beyond reasonable doubt. Whatever its proximity or deficits, prosecutorial failure to crest this hurdle necessarily translates into acquittal. R. v. W.(D.) and its many progeny make clear that, irrespective of its moorings, so long as there remains a basis for reasonable doubt respecting the veracity or correctness of a legally vital element of a complainant's account, an accused must be acquitted even if his or her evidence is entirely rejected or even if he or she elects not to testify.

[17] A judge presiding at a judge-alone trial must, like every trier of fact, assess the credibility of every witness – including that of a defendant where, as here, he testifies – in the context of all other evidence and not in isolation. A judge may, with reason, accept none, some or all of the evidence of any witness and accord different weight to different parts of the evidence that he or she does accept.

[18] A basis for reasonable doubt may be found in the evidence of any witness or combination of witnesses or in the absence of probative evidence. So too, a finding of guilt may be safely grounded on the evidence of a single witness – if sufficiently credible and persuasive to meet the requisite standard for such verdict. Reasoned and considered acceptance of an inculpatory account may itself afford a proper basis for rejecting the defendant's testimony.

[19] A just determination of cases of this nature is, as here, a fact-driven exercise. Accordingly, a detailed review of the evidence follows. While Nelson and Kelly's accounts of the critical events follow a similar linear progression, their versions are separately summarized to best illustrate the points of convergence and divergence and the differential density of their recall.

D. The Evidence

(a) The Complainant's Account

[20] According to Nelson, the defendant's sole employment was intermittent work in the catering industry. She effectively supported the household in March of 2016. She signed the apartment lease around the first of that month; she could not recall if the defendant co-signed. At the time, Nelson stood five-seven and weighed about 130 pounds. She described the defendant (as he did himself) as five-eight, 160 to 170 pounds, and "fit".

[21] Nelson testified in direct examination that she got home between 1 and 1:30am on March 29th. The apartment was clean when she left it. She unlocked the door and immediately noticed a mess – there were "things all over the floor". On March 25th, the night before she most recently left on assignment, she had awakened about 2am to find two unfamiliar men in her apartment. This memory compounded her anxiety, as did the sight of one or more ladders leaning awkwardly against the house. She remained outside the unit. SOCO photographs record Nelson's luggage in the narrow walkway just in front of the door to the apartment.

[22] Nelson did not call the police on March 25th as the strangers left when she awakened and she had to depart for the airport at 5am. She did call 911 on the 29th, but after first texting and calling the defendant. They fought on the phone, she says.

[23] Nelson testified in chief that her first 911 call on the 29th was about ten minutes after arriving home. In cross-examination, she agreed she first called the police from the apartment at about 3am, and she was "pretty sure" she did not enter the unit before the police arrived. (Counsel agreed that Nelson's first 911-call, as recorded by the TPS, was at 3:08am.) Pressed to explain the one-and-a-half to two-hour gap between her original evidence as to the time she returned home (that is, between 1 and 1:30am) and the actual time of her 911 call (after 3am), Nelson testified that she had forgotten to tell the police in her statement that she had stopped at a bar next to her apartment for a beer on her way home from the airport. She agreed that "last call" was at 2am, but said patrons did not have to finish their drinks and leave the bar until 2:45am.

[24] Nelson had also forgotten to mention her visit to the bar in her direct examination. She tended to be "absent-minded", she volunteered. Pressed, Nelson testified to having consumed two "tall boys" at the bar. She could not remember the brand or the alcohol content, and described the cans as "like a normal beer plus a little more". In her view, the alcohol "only minimally" affected her recall.

[25] Nelson had stopped for a drink because she knew the defendant was not home and she was, she said, afraid to go home alone. Her airline prohibited its employees from publically drinking while in uniform. Nelson was still wearing her uniform at the bar, but she testified she covered it with her coat to comply with the company rule. She says she spoke briefly to defendant on his cell while at the bar.

[26] Pressed again on the issue, Nelson agreed that, in the course of her statement to the police, she had been asked if she had had a drink on the way home from the airport. She also agreed that she had denied having anything to drink, explaining to the interviewer that it was "illegal" for her to drink in uniform. She said nothing to the police about covering her uniform with a coat; nor, in cross-examination, did she invoke her claimed tendency to absent-mindedness in addressing her failure to mention the beer-stop during her direct examination. Nelson also said she was "scared" when talking with the police. Asked why, she replied, "dunno, just scared".

[27] Members of the TPS promptly attended and entered the unit in response to Nelson's 911 call. The defendant arrived during the investigation and spoke to the police. He seemed, said Nelson, "in neutral". He also appeared to have cocaine on his nostrils. In cross-examination, Nelson agreed that she said nothing in her March 31st statement to the police about seeing cocaine residue on the defendant's face, despite discussing the defendant's alleged abuse of drugs and alcohol.

[28] Although the police photographs documented some disarray and debris, including broken glass and dried pasta on the floor of the kitchen area, Nelson volunteered that her memory had led her to believe the damage was much worse than was apparent in the photos. She agreed that there were many valuable items in the unit and that nothing of any significance was missing. She also agreed that there were no broken doors or windows, and that the police, before they left, had told her there were no signs of forced entry.

[29] Asked directly in cross-examination, Nelson denied having trashed the apartment herself. She agreed, however, that she had told the police she had told the defendant she had done just that when she called 911 to initially report her alleged assault. She also allowed that she may in fact have told the defendant she had ransacked the apartment before running out the front door, but she could not recall doing so. Nelson agreed that she told the police that intruders had broken into and damaged her apartment in the course of her formal March 31st statement. She denied lying to the police.

[30] Nelson and the defendant got into a heated argument after the police left. The defendant was angry about the police presence. She, in turn, felt unsafe in their relationship and threatened to end it. Although asked several times in direct examination, Nelson could not recall any of her own words, any of the defendant's words, or any "specifics" of their argument.

[31] The defendant slapped Nelson two or three times on the right side of her face, causing her lip to bleed. This occurred in the kitchen area of their apartment. She estimated the level of force as 3.5 out of 10. "Stop hitting me", she said. The defendant mocked her in return.

[32] A few steps lead down from the backyard to a short walkway leading to the apartment door. Once the door is opened, several further steps, on Nelson recall, descend into the apartment itself. Nelson sat down on an inside step to the apartment. The defendant, a former hockey player, picked up a hockey stick and swung it at Nelson. He then put down the stick and punched Nelson in her right upper cheek area, near her eye, with his left fist while she remained seated on the step. She estimated the force as 8.75 out of 10: "I've never experienced that level of violence", she testified. It was, in her words, "life-changing" and "traumatic".

[33] Nelson was invited to inspect the array of photographs taken by the police March 29th before she and the defendant were permitted to re-enter their apartment. Twenty-nine of these photos were of the interior of the small, one-room unit. She could not locate a hockey stick in any of the photographs.

[34] Nelson immediately ran from the apartment after being punched. She called 911. As recorded by the TPS, her call reached the police at 4:59am. By way of demeanour evidence, Nelson sounds close to hysterical during the very first part of the call. Later, when spotting a figure on the street, she sounds genuinely apprehensive. Although patently upset, she remains articulate, responsive and coherent throughout the nine-minute exchange. As Nelson conceded in the course of cross-examination, she advised the 911 operator that her apartment was ransacked and that she told her boyfriend that she "did it". The communication ends with the arrival of paramedics.

[35] "Shocked" and "scared", Nelson declined to provide the police with a statement regarding the alleged assault that night. Two days later, on March 31st, she returned to the police station for a formal interview, during which she was cautioned about the risk of criminal liability for making a false statement. The statement, as recorded by the police, includes Nelson's allegation that the defendant flipped a table toward her at some point during their exchange in the apartment on the 29th. Asked about this in cross-examination, Nelson testified that although she was sure it happened and was aware it was part of her formal statement, she had no memory of the event or of ever telling the police about it.

[36] The police took photographs of the complainant on March 31st. They graphically display swelling, bruising and a black eye on the right side of Nelson's face, broken skin on her right cheek and some reddish discolouration on the white portion of her right eye. Nelson attributed the more grievous injuries to the punch thrown by the defendant. She was off work for three weeks following the incident. No forensic or medical evidence was tendered respecting Nelson's injuries.

[37] Nelson, during the course of her direct examination, was asked to step outside to permit Crown counsel to canvass a line of proposed inquiry. Nelson returned to the courtroom and, with some direction, testified to pulling a large knife out of a kitchen drawer while being slapped. She says she immediately dropped it to the floor, because, as initially explained, she was "scared" and, in cross-examination, because it was "foolish". In her revised narrative, her production of the knife separated the slaps, the second of which was followed by the punch.

[38] In cross-examination, defence counsel suggested that Nelson had told the defendant she had ransacked the apartment, knocked his cell phone out of his hand when she realized he was about to call the police, and then fell, injuring herself, as she ran out of the apartment. Nelson peremptorily dismissed these suggestions. In re-examination, she denied ever falling down on the morning of March 29th.

[39] Apart from her acknowledgement of the specific memory deficits already noted, on several occasions Nelson testified more generally that she had forgotten much of what occurred on the morning of March 29th and that her recall of the night she was awakened by strangers in the apartment was also incomplete.

(b) The Defendant's Account

[40] The defendant testified to various part-time employment in March 2016, including at a music studio, a restaurant (Rock Lobster) and a couple of bars (including The Peacock). He and Nelson had both signed the apartment lease on March 1st, and he had put down the first and last month's rent. He had no criminal record in Canada, but had been convicted of misdemeanor assault in Texas in 1999, some 18 years earlier.

[41] The defendant presented, in essence, as a musician whose better days were behind him. He scraped together a living through part-time jobs. He kept physically active, and regularly played "pick-up" hockey. While his gloves, helmet and skates were at the apartment on March 29th, he had taken his composite hockey stick (a gift from his boss at Rock Lobster) to show to his friend Ryan English and left it with him. He was right-handed. He wore no rings or other jewelry at the time.

[42] The defendant spent most of March 29th hanging out with his bandmates. They ended up at The Peacock (Ryan English's bar), at King and Peter Streets in Toronto at around 11:30pm. He couldn't afford to drink much at the time, but he had two shots at the bar, one of which was a free drink in celebration of a birthday. Earlier in the evening, at about 8 or 9pm, he had shared a marijuana chocolate bar with a friend who said he had bought it at a dispensary.

[43] Short of money, the defendant walked home from The Peacock, arriving between 3:30 and 3:45am. He saw police cruiser lights as he approached and found the complainant with some officers in front of the door to their apartment at the back of the house. She was stand-offish, smoking, appeared to have been drinking, and was wearing her full flight uniform. If Nelson had a coat, the defendant did not see it. Other officers were inside the apartment. The defendant, who was then not allowed inside, peered through the opening in the door as he was concerned about the fate of his personal belongings, including his computer, a drum set and a vintage guitar.

[44] As described and sketched by the defendant, and consistent with the SOCO photographs, a set of steps at the back of the house descends to a narrow, walled passageway that leads to the inward-opening front door to the apartment. There is then a step-down of about five to six inches onto a landing inside the unit. The landing stretches approximately four or five feet before a second step down, of about four or five inches, to the main floor of the apartment.

[45] The defendant and complainant were allowed back into the apartment as the police left. He described the interior as "pretty ransacked", but none of his personal valuables had been taken or damaged. He sat in a chair, trying to take stock of the situation. Nelson, meantime, changed into jeans, a pullover and track shoes. She increasingly appeared intoxicated. He inquired as to how she was making out: "OK?", he asked. "Fucking right", she replied, "I did this."

[46] The defendant was "blown away" by this admission, but not, he said, upset or engaged. Until then he had assumed the damage had been caused by an intruder who was "trying to make a statement". As he explained, people were still partying upstairs when he returned from work about 3:30 or 4am a couple of weeks earlier. The complainant was "rattled". She told the defendant she had seen two persons in the apartment who, when she spotted them, went into the adjoining laundry room shared with the upstairs residents. The defendant called the landlord to report the disturbance. The landlord appeared to be already aware of the incident and assured the defendant that the intruders would not be returning. There was no damage. Nothing was taken. The defendant did not report the incident to the police.

[47] The defendant said that when talking with the police when he returned home on March 29th, he and Nelson had suggested that the apparent break-in might be somehow related to the earlier incident, thus implicating the upstairs tenants or the landlord. As he grasped the impact of Nelson's admission, the defendant realized he ought to stop the police from pursuing an unwarranted investigation of the upstairs residents. Vocalizing this realization, he said, "I have to call the police". "Like hell you are!", said Nelson as she swatted the cell phone out of the defendant's hand. The defendant had been standing in the middle of the unit holding his cell phone. It had been "dead", out of power, since about 11pm. There was no landline in the apartment and the defendant intended to immediately charge his phone so he could call the police.

[48] The defendant's phone landed in the kitchen area, near where its charger was ordinarily installed. With her back to the defendant, Nelson went to the same corner of the unit. She appeared to be frantically searching for something. The defendant asked Nelson what she was doing. She looked over her shoulder at him as she pulled a large serrated knife from a kitchen drawer, extended it toward the defendant, and said, "Stay back". They were about two arms-lengths, or approximately five feet, apart at this point. The defendant inferred that Nelson intended to block him from retrieving and charging his phone – that is, she intended to prevent him from calling the police. He denied advancing on her.

[49] Nelson then dropped the knife, grabbed what the defendant assumed was the phone charger and ran towards the front door of the apartment. As he looked for the charger he heard a "startlingly loud" thump. He turned in the direction of the door and saw Nelson folded awkwardly on the landing in front of the door, about four or five inches above the grade of the kitchen floor. The door to the apartment was still closed and Nelson was splayed against the wall just inside the unit. The defendant's impression was that she had either run directly into the wall by the door or had tripped on the step leading to the landing and forcefully fell into the wall. He did not, from his vantage point, see any sign of injury.

[50] The complainant pulled herself up by the door knob, opened the door and ran out. The defendant immediately rushed to shut and lock the door behind her. "That's it", he reasoned. He was thinking he just had to "stop whatever's going on there". As the defendant moved to close the door, he saw Nelson fall forward a second time, on the front door walkway. He did not check on Nelson's condition. He simply closed the door. Everything felt cold. He had no feelings: "It had just ended". He denied ever punching Nelson in the eye.

[51] No more than 10 to 20 minutes passed from the time he and the complainant entered the apartment and the time she left. The defendant grabbed a broom and was sweeping-up the debris when the police arrived. He recognized the same officers and, he says, was at first relieved to see them as he was able to correct any erroneous suspicion respecting the upstairs neighbours.

[52] In cross-examination, the defendant described a somewhat difficult relationship with Nelson. There were things that, as he put it, needed to be "amended", like the complainant's drinking. He, on the other hand, was an avid marijuana consumer. Although they had gotten serious about three or four months into their six-month relationship, there had been "rocky" patches at the front end. The defendant had stopped having unprotected sex with Nelson because he was concerned that she might have relations with others while away and inebriated. He denied being jealous and spoke wistfully of plans they had made to travel to a music festival in Spain courtesy of flight discounts she had arranged.

(c) The Supplementary Police Evidence

[53] PC Jose Perez first attended the apartment in response to a report of a break and enter. He arrived around 3:25am on March 29, 2016. The complainant, Holly Nelson, was standing in the backyard, a few steps from the door to the basement unit. She reported that she had been afraid to enter the apartment as the door was ajar when she arrived. Nelson's luggage was outside the apartment and she was dressed in an airline uniform. Perez could not recall if she was wearing a coat. He did not detect an odour of alcohol or signs of impairment. DC Stephanie Paraskevopulos, who spoke with Nelson at the station a few hours later, observed a "slight" odour of alcohol.

[54] Perez interviewed Nelson outside the apartment between 3:43 to 4:05am. The defendant arrived during the interview. He exuded a strong odour of alcohol. Perez did not observe any other signs of intoxication, nor did he testify to observing any cocaine or, more generally, white powder, on the defendant's nostrils or elsewhere. Both Nelson and the defendant remained outside the apartment until the police, including a SOCO officer, completed their investigation.

[55] Perez received a further dispatch, at 4:59am, about ten minutes after he left the apartment. The complainant was identified as Holly Nelson and the report involved an allegation of domestic assault at the same address. He and his partner quickly drove back to the area. Perez spotted Nelson on the street, very close to her home. She had a large welt on the right side of her face that he had not observed on his first attendance. He returned to the apartment at 5:06am and there arrested Kelly a few minutes later. The defendant appeared "a bit agitated", but not angry. No rings were located during a Level 2 search of the defendant at the station.

[56] The appearance of the apartment looked the same to Perez on his second visit as it had on the first. There were no signs of forced entry. A door leading to a laundry area shared with the upstairs residents was secured from the inside of the couple's basement apartment. He described the condition of the unit as "ransacked": two mini-fridges were open, bed covers and other items were on the floor, and pots and pans covered the kitchen countertops. As he conceded on viewing SOCO photographs of the apartment, Perez was in error regarding pots or pans on the kitchen counters.

[57] Although she knew the police had found no evidence of forced entry, Nelson told the police during her March 31st statement that her apartment had been ransacked during a burglary on the 29th. The interviewer, DC Paraskevopulos, asked her directly if she was sure she had not ransacked the apartment. Nelson denied doing so. In Paraskevopulos' recall, Nelson was calmer on March 31st than she had been when they first met two days earlier, a couple of hours after the alleged assault.

E. Analysis

[58] The only real issue is the actus reus, the physical component, of the offence of assault. Did the defendant slap and/or punch the complainant? Or, on the totality of the evidence, is there room for reasonable doubt as to the veracity of this allegation?

[59] The appropriate starting place is the theory of the prosecution. Nelson's evidence, say Crown counsel, is clear, candid and credible. The earlier incident, the unfamiliar ladders, her first peek at the disarray, make Nelson fearful to enter the apartment alone. Her relationship with the defendant is not going well. His absence on her return from Mexico is not improving the situation.

[60] On Nelson's evidence, they are arguing by the time they finally enter their apartment. She tells him she wants to end their relationship. Or he has grown jealous. Or he is enraged by hearing she trashed the apartment or the embarrassment this causes him after implicating the upstairs neighbours in the ransacking. In short, on the Crown's theory the defendant has ample motive to lash out at the complainant. And he does: slapping Nelson in the face and then, after she drops the knife, viciously punching her near her eye.

[61] Nelson's demeanour on the 911 call that follows is, says Crown counsel, consistent with fear and anguish. And the injuries to Nelson's face are far more consistent with being slapped and punched than with a fall.

[62] Free-standing, devoid of any closer examination and absent any counter-narrative, the complainant's evidence reads as a coherent account of the events culminating in her assault and consequent injuries. However, Nelson's recall of the events does not stand in splendid isolation, nor is it free of other concerns that command critical evaluation.

[63] First, there is the Crown's submission that Nelson's injuries are more consistent with a punch than a fall. If so, her trauma would be highly probative of the Crown theory. It is tempting to succumb to this reasoning. It is also dangerous. No medical, forensic or other expert evidence has been tendered, and certainly none respecting the hypothesis that the physical insult to Nelson's face is more likely attributable to one of the competing vectors of causation than the other. As trier, I can and must apply common sense and commonly shared experience to this assessment, but I am mindful that I cannot speculate or substitute my own subjective calculus of probabilities in the absence of material evidence.

[64] Justice Fred Kaufman addressed the risks of misconstruing the language of "consistent with" nearly 20 years ago in his 1998 Report of The Commission on Proceedings Involving Guy Paul Morin. The Commissioner favourably endorsed "the following explanation of the difficulty" (at p. 341):

Worst of all is the word "consistent," a word in (unfortunately) common use by forensic scientists, pathologists and lawyers. To a scientist, and to a dictionary, "consistent with" is simply the opposite of "inconsistent with." The definition of "inconsistent" is precise and narrow. 2 events are inconsistent with one another if they cannot possibly occur together. … . Anything which is not inconsistent is consistent.

Unfortunately for clear communication, … lawyers usually interpret "consistent with" as meaning "reasonably strongly supporting," while scientists use it in its strict logical and neutral meaning. When a pathologist says that certain injuries are "consistent" with a road accident there is no implication about whether or not there has been a road accident. It is possible that the injuries could occur given the circumstances that have been described. [Emphasis added.]

(B. Robertson and G.A. Vignaux, Interpreting Evidence: Evaluating Forensic Science in the Courtroom. Chichester: John Wiley and Sons, 1995, at 56.)

[65] Justice Kaufman, of course, is here speaking in particular about the risks of non-scientists ascribing probative weight to scientific claims that extend no further than to draw a "consistency" between two events, occurrences or phenomenon. But the larger point obtains: absent reliable evidence of likelihood or probability, a bald assertion of consistency, even if accepted, is of no worth other than to eliminate the possibility of an absence of any nexus. As said by Robertson and Vignaux, "Anything which is not inconsistent is consistent."

[66] To posit one side of the adversarial divide for purpose of example only: If I was persuaded by the conclusion of a qualified expert that Nelson's facial injuries could not possibly have resulted from a fall, it would, in the larger evidentiary context, be very difficult to ground a doubt founded on the defendant's account of the precipitating events. I do not, however, have such evidence, or adjudicative luxury. I have, instead, counsels' competing entreaties to favour one theory of causation over the other – an assessment that, ultimately, must be informed by the principle of reasonable doubt and based on a comparative assessment of credibility that, in my view, excludes any value-added consideration of the nature of Nelson's injuries.

[67] Appellate courts have not infrequently admonished trial judges for reaching beyond the strength of the evidence by, in effect, arrogating to themselves a special insight or expertise beyond their ken. R. v. MacIsaac, 2015 ONCA 587, [2015] O.J. No. 4538, 23 C.R. (7th) 313, affords one recent and factually proximate illustration. The appellant MacIsaac was charged with aggravated assault as a result of his alleged misconduct during a senior men's league hockey game. In rejecting the appellant's innocent explanation and ultimately convicting him, the trial judge, as set out at para. 42, held that, "Mr. MacIsaac's evidence in relation to the play is not consistent with the injuries sustained by the complainant …" (emphasis added). The Court of Appeal, in ordering a new trial, referred to this comment as indicative of the trial judge's impermissible "speculative reasoning". As the Court held, at para. 43:

The testimony of the appellant was that the front of his helmet hit the complainant's face when they collided. The Crown called no medical or other expert evidence and thus there was no basis upon which the trial judge could reach this conclusion, other than on her review of the description and photos of the complainant's injuries. In my view, the type of injuries that would be suffered as a result of the collision if it occurred as the Crown witnesses testified or as the defence witnesses testified was not a matter that was within the knowledge of the trial judge. [Emphasis added.]

Guided by this apt cautionary instruction, I resolve to avoid succumbing to the same risk of error.

[68] To be clear: I am left to, and do, infer that the complainant's facial trauma is consistent (that is, not inconsistent) with either a punch or a fall, as the dynamics of each of these transactions was testimonially described. Accordingly, and premised on the graphic and physical evidence of trauma before me, I cannot and do not infer or prefer one route of causation over the second. Nelson's injuries, in the language approved by Justice Kaufman, are of "neutral" value in the necessary W.(D.) assessment.

[69] The trauma sustained by the complainant affords no significant confirmatory support for her account. Even if it did, the assessment of her evidence would, as that of any narrative witness, be subject to considerations bearing on its honesty and reliability. Chief among these is the consistency of complainant's account, both internally and as compared with the evidence of others regarding the same matters. Indeed, there are a number of disconcerting inconsistencies in Nelson's evidence, material inconsistencies that undermine confidence in the reliability of her account when measured against the ultimate standard of proof.

[70] Nelson's variable testimony regarding her consumption of alcohol and the timing of her return to the apartment is but one telling illustration. In direct examination, she said nothing about stopping for two tall-cans on her way back to the apartment. At the time, and on re-reading my notes of her evidence in chief, I was left with the clear impression that, after disembarking at Pearson Airport, Nelson had travelled directly to and arrived at her apartment between 1 and 1:30am, and that she had called the police within some ten minutes thereafter (that is, at 1:40am at latest).

[71] This chronology quickly unraveled in cross-examination when Nelson was pressed to explain why her first 911 call to the police was not made until around 3am if she reached home some one-and-a-half to two-hours earlier. On Nelson's then-revised account, she had previously "forgotten" to tell the police (or, for that matter, this court), that she had stopped for a couple of beers at a bar on her way home. It is a troubling omission, made more troubling by her exchange with the police on the same point during her March 31st interview. Asked directly, Nelson denied having a drink on her way home from the airport. The defendant and DC Paraskevopulos (who met with Nelson about 7am that same morning) both testified to an odour of alcohol associated with Nelson, and I infer that she ultimately told the truth (if only in cross-examination) about stopping for a couple of beers. It is then impossible to conclude other than that Nelson consciously misled the police about a significant aspect of the preliminary events. Further still, she compounded her prevarication by telling the police that she could not possibly have consumed alcohol on her way home as it was "illegal" (or, at least, against her corporate employer's directives) for her to do so while in uniform and, if by way of ancillary implication, that this could not have occurred as she was a law-abiding citizen.

[72] All of this then gets turned upside-down when, at trial Nelson invokes the same company rule but explains that an exception (one never shared with the police) permits alcohol consumption while in uniform so long as the uniform is covered – a precaution she honoured by, she says, wearing a coat at the bar. While both the defendant and PC Perez testified to Nelson being in uniform, neither could recall if she was wearing a coat that evening, nor does any other witness confirm that her uniform was in any way covered.

[73] Nelson's misrepresentations to the police respecting her alcohol consumption on March 29th raise still further concerns. At trial, she endeavoured to explain, at least in part, her fabrication by saying she was "scared" during the police interview on March 31st. Being "scared" is the same rationale Nelson advanced to explain her reticence to enter the ransacked apartment alone, for dropping the knife, for running from the apartment, and for declining to be interviewed by the police a couple of hours after the alleged assault. It is far less immediately understandable why she would be "scared" to speak to the police on March 31st. Indeed, when asked directly in cross-examination, Nelson could not explain why she had been scared. This was some two days after the events at issue. The defendant had been arrested. Nelson herself had called to arrange the police interview. And, as DC Paraskevopulos testified, she was calmer than she had been at their first meeting on the 29th. Further, at trial Nelson presented as anything but timid or easily frightened. She was assertive, argued with defence counsel, and purported to rule on the legal propriety of various questions. I have considerable difficulty concluding that fear, at least of the police, had anything to do with what I infer was conscious dishonesty during her police interview.

[74] Nelson's allegation, as advanced in direct examination and confirmed in cross, that the defendant threatened her with a hockey stick also reflects on her credibility. It is undisputed that the defendant regularly played hockey and that he owned all the associated equipment, including, of course, a hockey stick. On his evidence, the stick was not in the apartment on March 29th as he had left it at a friend's. The defendant's account is buttressed and Nelson's compromised by the police-gathered forensic evidence. Nelson was shown more than two dozen SOCO photographs of the inside of the small, one-room apartment, taken before she and the defendant were permitted to re-enter. She could not locate the hockey stick in any of the photos. While it always possible that a trained scene-of-crime officer failed to fully canvass a place of interest, the more likely inference, I find, is that Nelson invented, misremembered or conflated events. Whichever, it degrades confidence in her overall credibility.

[75] Nelson's evidence as to the burglary and ransacking of her apartment is both internally inconsistent and demonstrably at odds with uncontroverted exogenous evidence. It does not appear from the police evidence, nor is it suggested by Crown counsel, that anyone unlawfully entered the apartment. There were no signs of forced entry. The door separating the apartment from a laundry room shared with the upstairs residents was locked from the inside of the unit. Nothing of value was taken or damaged. Further, the Crown does not suggest – by way of examination of any witnesses or in final submissions – that the defendant was responsible for the trashing of the apartment. That leaves, as the only suspect, the complainant, Nelson, herself.

[76] Nelson repeatedly contradicts herself on the subject. For want of a better term of art, she repeatedly waffles about her involvement in the ransacking. She denies trashing the apartment when asked directly by the police during her March 31st interview. She similarly denies doing so while testifying at trial. She does concede, however, telling the 911 operator during the call following her alleged assault that she had told her boyfriend, the defendant, that she had trashed the apartment. She also allows that she may in fact have admitted this to him during the few minutes she and the defendant were in the apartment together before she ran out the door – but, if so, she had no positive recall of saying so or doing so.

[77] Nelson's blames unknown intruders for damaging the contents of her apartment. She unlocked the front door on arriving home, immediately noticed the disarray inside, and then remained outside until sometime after the police, in response to her first 911 call, joined her. She never entered the apartment until the investigation team left. Nelson's testimonial account of her return to the apartment on March 29th differs from that she shared with PC Perez. He testified that Nelson told him she was afraid to enter the apartment because the door was ajar when she arrived home.

[78] Did Nelson cause the disarray in the apartment? Probably. Did she try to mislead the police and this court about trashing the unit? Likely. Were her claims of memory failure a self-serving mechanism for avoiding a tough question? Almost certainly. But, in the end, it matters little to the ultimate credibility assessment. Other than her transparently convenient invocation of memory loss, I make no findings as to the complainant's participation in the ransacking of the apartment. More significant, in my view, is the malleability of her recall and its selective manipulation to meet the exigencies of a quickly-changing evidentiary landscape.

[79] There are other sources of concern. Nelson's allegation that the defendant's face bore conspicuous indicia of his recent use of cocaine was advanced for the first time at trial. She had not mentioned this during her police interview despite rattling on about the defendant's alleged drug abuse. PC Perez made no mention of seeing any powder on the defendant's face, despite spending approximately an hour in his close company.

[80] Nelson was cross-examined about her assertion, as recorded during her police statement on March 31st, that the defendant had flipped a table towards her at some time during their argument in the apartment on the 29th. While acknowledging it formed part of her statement, Nelson claimed to have no memory of the event or of making this allegation to the police. Nor did Crown counsel even bother to put this claim to the defendant in cross-examination.

[81] More generally, Nelson repeatedly testified to having forgotten much of what occurred on the 29th and, some days (or weeks, on the defendant's account) earlier, when she awoke to find strangers in the apartment. She could recall almost none of what she or the defendant said during the course of the argument that preceded her alleged assault. She characterized herself as absent-minded.

[82] The one element of her narrative to which Nelson constantly adhered was her assertion of the defendant's assault. The difficulty in assigning truth value to this allegation rests in the many instances of inconsistency, contradiction, misrepresentation and professed forgetfulness that otherwise punctuates Nelson's evidence and which, I find, calls into question both her honesty and reliability. I appreciate that I can accept all, some or none of any witness' testimony, but the unexplained discrepancies and convenient testimonial variations are here so closely knitted to Nelson's core allegation to render her evidence unworthy of that level of trust necessary to satisfy the Crown's burden of proof beyond reasonable doubt.

[83] The defence, of course, bears no legal onus. The defendant's evidence, as Crown counsel rightly notes, lacked the emotional affect one would expect to attach to the dramatic events of the evening in question. His adoption of a near-transcendent state, bereft of passions or even feeling, appears somewhat contrived or, at least, consciously restrained. His failure to assist or even check on the status of the complainant after, on his evidence, her forceful fall, speaks to a perplexing insensitivity. That said, the defendant's testimony remained fundamentally consistent. Further, I find that its rich convolutions and internal granularity enhance its credit-worthiness. I do not accept the defendant's account, but it is not implausible. On this assessment alone, I have no alternative, in light of W.(D.), but to find the defendant not guilty.

F. Conclusion

[84] For the reasons just recited, I find the defendant not guilty of the charge of assault causing bodily harm with which he was charged.

[85] I would be remiss if I did not express my gratitude to both counsel, and I do, for the professionalism and civility they have exhibited throughout this trial.

Released on December 13, 2017

Justice Melvyn Green