Court File and Parties

Date: July 16, 2018

Court File No.: 2811 998 17 33624 00

Ontario Court of Justice

Her Majesty the Queen

v.

P.E.

Before: The Honourable Justice M.S. Felix

This 16th day of July, 2018 at Oshawa, Ontario

Publication Ban

Ban on Publication Pursuant to subsection 486.5(2) of the Criminal Code

Appearances

G. Fitzgerald – Counsel for the Crown

J. Tekenos-Levy – Counsel for P.E.

Reasons for Judgment

Contents

• I. Introduction
• II. Evidentiary Considerations
• III. Factual Findings
  • A. The Evidence of A.T.
  • B. The Evidence of P.T.
  • C. The Evidence of the Defendant
• IV. Analysis
  • A. Approach to the Evidence of Children
  • B. W.D. and Criminal Burden of Proof
  • C. Description of the Weapon
  • D. Number of Strikes with the Weapon
  • E. Injury
  • F. Disclosure
  • G. Date Range
  • H. The Year 2015
  • I. The Defendant's Female Partner
  • J. The Familial Context
  • K. Motive
  • L. Corroborative Evidence
  • M. Overarching Credibility Findings and the Criminal Burden of Proof

MONDAY, JULY 16, 2018

FELIX, J: REASONS FOR JUDGMENT (Orally):

THE COURT: Here is my judgment.

I. INTRODUCTION

[1] The defendant is charged with assaulting his ten year old son A.T. and seven year old daughter P.T. with a weapon.

[2] The Crown called both children as witnesses at trial. Both children provided video-taped statements to the police that were admitted pursuant to s.715.1 of the Criminal Code and adopted by each witness. The children testified by way of close circuit video.

[3] The central allegation concerns the defendant using an instrument (a stick or spoon) as a means of physical parental discipline numerous times in relation to each child from May 2016 to January 2017.

[4] For the reasons that follow, the defendant is found not guilty of both counts.

II. EVIDENTIARY CONSIDERATIONS

[5] Given the manner in which this case was litigated, and the submissions, I will address some evidentiary considerations at the outset of my reasons.

[6] The prosecution has framed the case as an assault with a weapon in relation to each child.

[7] The focus of the prosecution case concerned the use of a stick and/or a spoon as "the weapon" to make out the material element of the offence in relation to each complainant. It is clear that both the prosecution and defence litigated the assault with a weapon counts as being referable to the alleged use of a stick and/or spoon.

[8] In addition to these allegations, evidence was called concerning non-weapon related physical discipline.

[9] Both the defence and the prosecution proceeded as if this prejudicial information was relevant and admissible it to the proceedings. Notwithstanding that approach on the part of the prosecution and defence, I should make clear that I have not considered the non-weapon related physical contact to be part of the prosecution's case or the case to meet on the part of the defence. The prosecution was not required to prove those events beyond a reasonable doubt because they were not part of the criminal allegation in the information before the Court.

[10] While it is evident that both complainants provided evidence of non-weapon related physical discipline to the police, no criminal counts were laid by the police in relation to this evidence. The prosecution did not seek to amend the information or otherwise seek to address this non-weapon related physical discipline conduct as part of the criminal allegations. Neither side litigated the applicability of s.43 of the Criminal Code of Canada to the non-weapon related physical discipline.

[11] Given this approach, I must make clear what use, if any, I made of these events.

[12] The prosecution did not bring an application seeking admission of the discreditable conduct on the part of the defendant to admit this conduct for any purpose.

[13] The prosecution did not seek a conviction on the lesser but included offence of assault simpliciter in this case.

[14] As such, I simply received this information as part of the narrative to assist me with understanding the background of the relationship between the parties.

[15] On a related note, the prosecution did not bring a discreditable conduct application concerning the multi-count information to address the fact that there were two complainants, two counts, and similar circumstances. I have instructed myself accordingly.

[16] On still another related note, it came out in evidence that the defendant had a prior record for assault involving physical discipline of a child. The prosecution did not seek to make use of this prior record, notwithstanding it involved the same complainant. There were no applications associated with this evidence, for example discreditable conduct, and I do not have an understanding of the detailed underpinnings of this conviction.

[17] As a result, I do not need to factually resolve these other conflicts or other parental discipline incidents. This evidence has been received for narrative and context purposes only.

III. FACTUAL FINDINGS

[18] The finer details of the allegations are not crucial to understanding my findings. The allegations made by both complainants were denied by the defendant, but the complainants are both children. Finer details often evade child witnesses. I focused on the core of the allegations.

A. The Evidence of A.T.

[19] The core allegation concerned the complainant's assertion that his father struck him with a weapon on several occasions.

[20] The first incident involved his father spanking him with a stick on his bottom several times (eight in number) in the livingroom near the front door.

[21] The second incident was around his failure to tie his shoes properly as a result, his father said he was taking P.T. to McDonald's and not him. He was crying. His father told him to stop. When he did not, his father struck him once with a stick on his hand. There was a red mark, a little bit of blood, and a black mark once it was healed.

[22] The third incident concerned A.T. being apparently rude to his father's new partner. He was throwing a tantrum, having difficulties with reading. He got angry, and his father hit him once on the bottom with a stick.

[23] The fourth incident involved A.T. soiling his pants. His father struck him with a stick in the buttocks area because of this misbehaviour.

[24] Further it is noted that one critical incident of assault caused bloody bruising to the buttocks of A.T. In addition, the complainant's sister also provided testimony in support of a generalized assault with a weapon.

B. The Evidence of P.T.

[25] P.T. testified that the defendant struck her with a stick.

[26] She testified that her brother was not struck with a spoon.

[27] She testified that the defendant did not use a spoon to spank her or her brother, but testified shortly thereafter that a spoon was broken and it was used to spank their butts. In her statement to the police, she indicated that sometimes her father struck her with the stick and other times a spoon.

[28] She testified in court that her father used an African wooden spoon to spank her every single day. But in her statement to the police she never used the word African to describe the stick.

[29] Prominently, P.T. testified that she saw bloody bruising on her brother's buttocks. She described him being with their mother in the bathroom when she made this observation. P.T. testified that she directly made this observation and that her mother also observed these circumstances.

C. The Evidence of the Defendant

[30] The defendant broadly testified that he had not used any stick, African stick, spoon or other instrument to perform his parental discipline function.

[31] The defendant testified that he learned from his 2015 conviction. He no longer spanked the children. He used other non-physical disciplinary approaches. As he and his ex-partner co-parented the children, he was often called upon to address the behaviour of A.T. when his behaviour was poor. One such significant time period concerned was when A.T. was dropped off to live with him for several weeks.

[32] The defendant provided detailed evidence concerning his approach to parenting.

[33] He specifically and explicitly denied using any instrument to commit an assault with a weapon and he also testified that his new partner did not physically discipline the children.

IV. ANALYSIS

[34] There are 13 factors I have considered in arriving at my determination that I have a reasonable doubt and that I am required to acquit the defendant.

A. Approach to the Evidence of Children

[35] This case required the Court to assess the evidence of two young children.

[36] There is no fixed rule or approach to the evidence of children: R. v. Marquard, [1993] S.C.J. No. 119, at para.19 [Marquard].

[37] There is no legal requirement for the evidence of children to be corroborated: See R. v. W.(R.), [1993] 2 S.C.R. 122, at para. 24 [W.(R.)].

[38] Whether or not an instruction on the credibility or reliability of a child's evidence is given depends on the evidentiary record and the discretion of the trial judge: Marquard, at para.21

[39] The Court should refrain from applying adult tests for credibility to children given our worldly experience that children experience the world differently: W.(R.) at paras. 24-25. Children may perceive events in a varied and quite a different fashion than adults. Further children may not be able to provide the specific detail and precision given their age and maturity: W.(R.) at para.25.

[40] In applying these principles, however, the Court is not permitted to dilute the criminal standard of proof: W.(R.) at para.26.

[41] The Court must approach the evidence of children with sensitivity to these principles devoid of harmful stereotypes and with a common sense perspective. All of these things being considered, there still must be a solid foundation for conviction: Marquard, at para.20.

B. W.D. and the Criminal Burden of Proof

[42] The criminal burden of proof in the principles outlined in W.D. are not diminished because the allegations concern children.

[43] While a Court must keep in mind the necessary guidance concerning the evidence of children there is no ability to compromise the criminal standard of proof beyond a reasonable doubt.

[44] The defendant testified at trial. There was no serious challenge to his evidence. A criminal defendant is entitled to know the specific basis upon which guilt is founded. If a Court rejects the evidence of the defendant, a reasoned basis must be articulated. For there to be a reasoned basis, there must a foundation.

C. Description of the Weapon

[45] The defendant testified that there was no stick, "African" stick or other instrument used to discipline the children.

[46] The core of A.T.'s allegation is that he was assaulted with a weapon. In his police statement he described the stick as wooden, gold in colour, and not breakable. He later described the colour of the stick as being brown.

[47] At trial A.T. variously described the weapon as a wooden spoon, a carved stick, an "African" stick, and even an "African" spoon. When describing the stick he initially testified that it was blonde and gold in colour. Later he said it was closer to brown and compared the colour to the bronze medal at the Olympics. Ultimately, A.T. also expressed some uncertainty as to the colour but appeared, when I consider his evidence in totality, to settle on the colour blonde.

[48] The complainant A.T. also testified in depth about the use of a spoon to assault. He testified that his father hit him with a black plastic spoon and that this occurred at least once where his mother observed the interaction. The complainant testified that the black spoon broke and thereafter his father resorted to the stick. The contention was that his father broke the black spoon during the assault.

[49] At another time in his testimony, A.T. testified that his father's new female partner broke the spoon. This was contrary to his earlier testimony that only his father used the spoon to strike him. A.T. then elaborated that his father's female partner used a blonde wooden spoon to strike him on the hand, not the black plastic spoon.

[50] Based on the evidence of A.T., it is difficult for this Court to discern exactly was used to assault him. It is not clear what precisely was used to strike him.

[51] With respect to P.T., she told the police that the instrument was a stick that comes off the branch of a tree. Then she told the police that it was not a stick off a branch that it had been carved in some fashion. P.T. also described the stick as having some sort of circle. Finally, I carefully reviewed the police statements of both complainants, and noted that P.T. did not use the word "African" in her statement to the police, yet she used this descriptor in her testimony at trial. This impacted the reliability of P.T.'s evidence.

[52] Based on the evidence of P.T. it is difficult to discern what was used to strike her.

D. Number of Strikes with the Weapon

[53] The complainant A.T. variously testified that the defendant hit him eight times, seven times, and three times; the last being in his statement to the police. He conceded that he does not have a good memory about the number of strikes.

[54] In his statement to the police, the complainant A.T. also testified that the defendant's new partner assaulted him 20 times with a spoon. He explained at trial that he meant that she hit the stairs 20 times and one time she hit his hand, and broke the spoon.

[55] This evidence detracted somewhat from the reliability of the complainant A.T.

E. Injury

[56] The prosecution and defence disagree on the factual evidence on this issue. I have done my best to understand the evidence of both complainants and come to my findings as to the facts in support of the allegation of injury and a proper evaluation of the evidence.

[57] A.T. testified that he had bloody bruising on his buttocks as a result of the assaultive behaviour of his father. He both acknowledged and denied that his mother assisted him with bathing at this juncture. He testified that he was going to show his mother the bruises, but that they had healed already. He also testified that he told his mother about the bruising, and that his mother knew about his father abusing him. He also testified that he did not tell his mother about the bruising and referenced avoiding a "war zone" between his parents.

[58] P.T. testified that she saw bruising and bleeding on her brother's body as well, and she testified that their mother observed the same circumstance while bathing her brother or while in the bathroom.

[59] The mother of the children was material on this issue. The prosecution declined to call her as a witness. Defence counsel anticipated that she would be called as a witness because of a judicial pre-trial in this matter. Defence counsel requested that the Court secure the availability of this witness to be called by the defence. The mother of the children was co-operative with the Court notwithstanding the apparent lack of a subpoena, and agreed to return and be called as a witness.

[60] The mother was called as a witness by the defence. There were no issues with the credibility of the complainants' mother in my view. She and the defendant are no longer a couple. They co-parent the children. Notwithstanding the circumstances, she did not display any obvious animous towards the defendant or bias against him.

[61] The complainant's mother testified that her son never disclosed an assault nor did he bring any bleeding or bruising to her attention.

[62] The Court sought clarification of her evidence and asked some additional questions. During the time-frame of the information before the Court which is the only time-frame I am concerned with, she never observed any bloody bruising on her son. During this time-frame, it was her practice to bathe the complainant A.T. She never bathed her son and observed injury on his body. She never bathed A.T. such that her daughter had the opportunity to observe. And finally, she did confirm that there was a time period of approximately three weeks where she did not see the complainant A.T. on a daily basis.

[63] While this last piece corroborates to some degree the time period expressed by A.T., her evidence as a whole conflicts with the version of events provided by both children.

[64] The confluence of this testimony caused me to disregard the evidence of P.T. She was very young at the time of the alleged incidents, and still a very young child by the time she testified.

[65] I am not satisfied that the she credibly saw any injury on her brother or witnessed her mother's observation of any injury in the bathroom. I cannot, to the best of my ability, determine whether this results in a credibility concern with respect to such a young child or a reliability concern. However, I too noted something the defence focused on in submissions. That P.T. never used the word "African" in her statement to the police or in direct examination. Then when she arrived in Court, she included the descriptor "African" to describe the stick that was used by the defendant.

[66] With respect to A.T., I have credibility and reliability concerns on this issue, particularly given the evidence of his mother. Given the challenges involved in P.T.'s evidence on this point, I have not given her evidence any significant weight.

F. Disclosure

[67] The complainant A.T. testified that he told his mother about the assaults first and then a C.A.S. worker second during a meeting. In another area of his testimony, he testified that his mother knew about the abuse from his father.

[68] The complainant's sister P.T. told the police that she had told her mother a thousand times about these circumstances, an obvious exaggeration on her part, but nonetheless, the point being her mother knew.

[69] When the mother was called by the defence, she clarified that A.T. disclosed the assault to a visiting C.A.S. worker one day when she slipped out to pick up P.T. from school.

[70] Neither child disclosed these events to her.

[71] She was of the view that both would be inclined to disclose such things to her, particularly her daughter who could be very verbal, she described, about her brother.

[72] Earlier in this judgment I have addressed the inconsistencies in A.T.'s testimony. I acknowledge A.T.'s testimony generally that he did not disclose because he did not wish to make things difficult between his mother and his father. He actually described it as avoiding a "war zone."

[73] I also acknowledge that the timing of disclosure is not necessarily a credibility issue. Complainants, particularly children, react in various ways: See R. v. D.(D.), 2000 SCC 43, 2000 S.C.C. 43. But, it is clear that during this time frame, A.T. was aligned with his mother. It is clear that he did not wish to live with his father. His mother testified that both children have the capacity to disclose things to her. Neither child did. The complainant's mother is a Personal Support Worker. I reasonably believe that had she observed injury, had injury been disclosed to her, she would have addressed the circumstances.

G. Date Range

[74] The defence cites the lack of specificity with respect to the dates of the assaults in this case. I accept that there is little precision with the time-frame in this case. That being said, I recognize that children have difficulty fixing dates and times the way adults might. I find that A.T. adequately identified the date range in his statement, and testimony by describing certain events. For example, events proximate to Christmas Eve. I am not troubled by the complainant A.T.'s inability to fix precise dates given the record before me. With respect to P.T., there really was just a blanket time-frame with no precision on dates. Certainly on all of the evidence at trial, it would not be unreasonable to find that P.T. had contact with her father during the relevant time period. In conclusion, I do not endorse the defence argument on this point.

H. The Year 2015

[75] Defence counsel cites the possibility that the conduct alleged falls into a date range covered by the defendant's previous conviction. On the record placed before me, I do not agree. The specifics of the prior conviction were not introduced into evidence. The date range involved in those allegations was not presented into evidence. The conviction apparently was in 2015, but it is not clear when the underlying conduct occurred. I also do not know if the underlying contact involved a weapon or not because I have no details of the underlying contact. All I know is there was a generalized conviction involving parental discipline.

[76] A singular note of concern must be acknowledged by the testimony of A.T. that some of the events he described could have happened in 2015. The complainant's sister P.T. also testified that the "stick incident" could have been in 2015. But, I am satisfied that the force of A.T.'s answer is diminished by the difficulty he had with fixing specific events in time. As I indicated, this is an issue common to child witnesses. The complainant A.T. was being asked general questions about events from three years prior when he would have been approximately seven years old. As I have indicated there is no evidence, and indeed A.T. was not closely questioned on the substance of the acts that gave rise to the defendant's prior conviction. As such, it would be natural and easy for the complainant to blend the events together. For these reasons, I do not endorse the defence argument in this regard.

I. The Defendant's Female Partner

[77] The complainant A.T. alleged that the complainant's new female partner also disciplined him. The defendant testified that his female partner was not involved in discipline as per an agreement with the complainant's mother. The complainant's mother was not asked about this issue. The defendant's current partner was not called as a witness.

J. The Familial Context

[78] The complainant's mother and father do not cohabitate so at times the complainants were with their mother, and at times with their father. I accept the evidence of the complainant's mother and the defendant that at times because of his poor behaviour, the complainant A.T. was sent to his father's residence. I also find based on the evidence of the complainant, his mother and his father, that there was more structure and discipline at the defendant's residence.

K. Motive

[79] The defence asserts that the allegations are fabricated in part because of a desire on the part of the complainant A.T. to leave his father's residence and live with his mother. I am not aware of any motive assertion in regard to P.T.'s evidence based on the defence submissions. The defence does not have to establish motive in a criminal trial but based on the demeanour and testimony of the complainant A.T., one can easily discern some concern on the part of the complainant's evidence about residing with his father. Whether this concern manifests because of the allegations before the Court or other unwelcome conduct or some other cause is too hard for the Court to determine.

L. Corroborative Evidence

[80] There is no legal requirement for corroboration of a child's evidence. However, at times corroboration is helpful.

[81] Both complainants described the location where the instrument used to strike them was hidden. Notwithstanding this information, there is no evidence before me that the police executed a search warrant to search for this implement. As a result this piece of evidence was unavailable to potentially corroborate the complaints.

[82] Further there are no photos of injuries or medical information available to potentially corroborate the testimony of either complainant.

M. Overarching Credibility Findings and the Criminal Burden of Proof

[83] Earlier in this judgment I provided a comprehensive analysis of the relevant issues in this trial. Indeed, as a trial judge addressing credibility, it is my obligation to clearly address why I have made certain credibility determinations. Balancing all of the relevant considerations in this case, notwithstanding the issues that I have identified, I would be inclined to accept the evidence of A.T. I found his evidence to suffer more from reliability issues than credibility issues. But the inclination towards A.T.'s evidence is not enough in a criminal prosecution. Even allowing for the nuanced approach to the evidence of children, I am not permitted to relax the criminal standard of proof.

[84] While there is something very persuasive about the evidence of A.T., notwithstanding the pitfalls that I have outlined, that he was convincing in his presentation to me, is not enough. A Court must be able to articulate a reason halfway to conviction, and when dealing with credibility issues a Court is required to squarely address those credibility issues, the credibility issues focused on by the parties.

[85] P.T. presented as an articulate young child. But, I am concerned about her credibility in relation to her testimony about having observed an injury on her brother. Her conflict with her mother's evidence about observation and knowledge of A.T.'s bloody and bruised buttocks is a serious concern in this case. This is the core of the main allegation and the complainant's mother does not substantiate the claim made by P.T.

[86] The mother of both complainants as I have indicated was called as a witness by defence counsel.

[87] The Crown Attorney role involves placing the evidence before the Court as a quasi-minister of justice.

[88] But for the defence taking steps to ensure the mother's availability as a witness, the Court would not have received highly probative and material evidence.

[89] The most crucial confluence of testimony at this trial concerned this conflict over whether A.T.'s injuries were observed by his mother. A.T.'s position is that his mother did not observe such injury and did not participate in bathing him. His sister's perspective is that her mother did in fact see this while bathing him in the bathroom. Only the mother of the children could resolve this dispute. Luckily, she was called as a witness. She testified that she never saw any injury, there was no disclosure by the children, and that P.T. would not have been in a position to observe what she described. This witness, the mother of the children, was in the best position to display animous or bias against the defendant given the circumstances of the allegations and the status of their relationship. I did not detect any such bias in her approach.

[90] The defendant categorically denied any assault with a weapon. He provided reasonable explanations for his parental approach to his son in particular. He explained the circumstances around his appropriate use of non-physical discipline. He provided concrete examples that were accepted in evidence by his son, including being sent to his room, taking away toys like the drone, and providing a wooden block to assist with the skills required to tie shoes.

[91] The defendant testified largely in a clear and straight forward fashion. The defendant went out of his way to provide earnest and extensive detail. This was not for the purpose of obstructing the court process or evading the questions asked. I found that the defendant was quite earnest in his efforts to provide comprehensive detail.

[92] He acknowledged his prior record for a familial assault generally, and explained that he had taken rehabilitative steps since 2015. He was definitive that he did not strike the complainants in any way, shape or form. His recount of the defecation incident spoke frankly more to frustration than criminal assault. His explanation that his new partner is not permitted to discipline the children he shares with his ex-partner makes sense to me.

[93] I do have some question about the defendant's evidence notwithstanding all of these positive features, but having a question in my mind is not sufficient. As I have probably repeatedly said, I have an obligation to explain in a crystal clear basis, my route to a conviction if that is the result. I cannot articulate that route in this case. I cannot reject the evidence of the defendant. At a minimum, I have a doubt based on his evidence. I simply cannot determine the actual truth as between the defendant and in particular his son. That means I must acquit him of the allegations involving his son: See R. v. S.(J.H.), 2008 SCC 30, 2008 S.C.C. 30. With respect to the evidence of P.T., applying the W.D. analysis, I accept the evidence of the defendant that he did not assault her with a weapon.

These are my reasons.

Stand up please, sir. You are found not guilty, you are free to go. Thank you, counsel.