Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 11 12 COURT FILE No.: Hamilton 18-9660

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

B.K.

Before: Justice J.P.P. Fiorucci

Heard on: February 8, 9, April 21, 22, and 23, 2021 Judgment released on: November 12, 2021 [1]

Counsel: S. MacDougall, counsel for the Crown J. Read, counsel for the Defendant B.K.

FIORUCCI J.:

Introduction

[1] The accused, B.K., was charged with assaulting his estranged common law wife, T.H.1, on two separate occasions between August 1 and 31, 2018 and once on September 15, 2018. He entered not guilty pleas to the three assault charges.

[2] The Crown’s case consisted of evidence from the complainant, Ms. T.H.1, and P.C. Robert Lawther, a police officer who responded to the domestic disturbance on September 15, 2018. The Defence called P.C. Larissa Roechner to give evidence. P.C. Roechner responded to a prior domestic call between the parties on December 8, 2017. I also received the trial evidence of the child witnesses, T.H. and L.K., by way of Agreed Statements of Fact.

[3] These are my reasons for finding Mr. B.K. not guilty of the three assault charges.

Summary of the Evidence

[4] T.H.1 and B.K. were in a relationship from approximately 2006 to 2018. Ms. T.H.1 has four children. Mr. B.K. is the father of two of the children, A.K. and L.K.

[5] In or around the first week of August 2018, Ms. T.H.1 and Mr. B.K. moved into C[…] Street East, in the City of Hamilton. The couple resided there with the children. However, at certain points in time some of the children resided elsewhere due to the involvement of the Children’s Aid Society (CAS).

The Assault on the Stairs in August of 2018:

[6] Ms. T.H.1 testified that one of the assaults happened in August of 2018 on the stairway leading from the main floor to the second floor of the home at C[…] Street East. In examination-in-chief, Ms. T.H.1 testified that Mr. B.K. was standing in the kitchen with his friend. Ms. T.H.1 and Mr. B.K. began to argue and Mr. B.K. then came after Ms. T.H.1. He pushed her down on the stairs with force while she was standing on the stairs. Ms. T.H.1 stated that Mr. B.K. was then on top of her and held her jaw and face down on the hard stairs, with the metal footing of the stairs digging into the left side of her ribs and back. Mr. B.K.’s friend said, “okay B.K. enough”, at which point Mr. B.K. went back to the kitchen and Ms. T.H.1 continued upstairs.

[7] In response to a question posed by Crown counsel, Ms. T.H.1 testified in-chief that Mr. B.K. did not strike her, other than the push. However, as I will explain in the analysis portion of my judgment, Ms. T.H.1 gave a materially inconsistent version of this assault to the police when she provided a statement on September 15, 2018.

[8] At trial, Ms. T.H.1 did not recall any marks resulting from this assault. She testified that she had a sore collarbone, ribs, shoulder and back from the pressure put on these areas, as well as on her mouth and jaw.

The Assault in August of 2018 witnessed by Mr. B.K.’s mother:

[9] In August of 2018, Ms. T.H.1’s children, L.K. and A.K., were in the care of Mr. B.K.’s mother, R.K.. According to Ms. T.H.1, one day in August of 2018, R.K. brought L.K. and A.K. for a visit to the home. During this visit, Mr. B.K. was having a cigarette outside, at the front of the house, with his mother.

[10] When Ms. T.H.1 came outside, wanting to have a cigarette too, Mr. B.K. told her to go inside. At this point, Ms. T.H.1 and Mr. B.K. began to yell at each other. Ms. T.H.1 testified that Mr. B.K. then came inside the home and attacked her, grabbing her by the shirt and punching her three or four times in the back of the head.

[11] In her evidence-in-chief, Ms. T.H.1 said that this assault happened in front of Mr. B.K.’s mother and the children, and that R.K., L.K. and A.K. were all yelling at Mr. B.K. to stop. Ms. T.H.1 testified that there were no visible injuries from this assault.

[12] As I will explain in the analysis portion of my judgment, Ms. T.H.1’s police statement included details which were materially inconsistent with Ms. T.H.1’s testimony at trial regarding this incident.

The September 15, 2018 Assault:

[13] Ms. T.H.1 testified that, on September 15, 2018, she was painting the living room of the home with her daughter, L.K. Sometime between 9:00 and 9:30 a.m., Ms. T.H.1 and L.K. were in the backyard cleaning the paint brushes with the hose when Mr. B.K. came outside yelling about a phone charger. An argument ensued between the couple, during which Mr. B.K. also blamed Ms. T.H.1 for the dog getting out onto the street from the side of the house.

[14] According to Ms. T.H.1, the argument escalated, and Mr. B.K. punched her in the back of the head three times, and she believes once on her back. Ms. T.H.1 was on the deck when Mr. B.K. stuck her. Ms. T.H.1 testified that L.K. was on the deck as well and witnessed the assault.

[15] In her examination-in-chief, Ms. T.H.1 said that, immediately after Mr. B.K. struck her, he left on his bike and she packed bags of clothes and toiletries for her and the children in case they needed to leave for the night. She also asked L.K. and her son, T.H., to pack bags. Once they had done so, Ms. T.H.1 left the home with L.K. and T.H.

[16] Because the bags were heavy, Ms. T.H.1 left them at a neighbour’s house up the street. She then brought the two children to P[...] Park. After leaving the children at the park, Ms. T.H.1 went to a store to get the children drinks because they were thirsty. After she bought the drinks, she was headed back to the park to bring the children the drinks. However, she did not make it to the park because she walked past the house and saw T.H. in the front window. She also saw Mr. B.K. walking towards the home with a friend, L..

[17] Ms. T.H.1 was trying to open the door, but she was locked out of the house. T.H. told her that he was not allowed to open the door because Mr. B.K. told them not to talk to her. When T.H. finally opened the door, all the bags that they had packed were dumped inside the hallway. Ms. T.H.1 thought she had enough time to get T.H. and L.K. out of the home before Mr. B.K. arrived at the door. Ms. T.H.1 ran with L.K. and T.H.

[18] Mr. B.K. called to T.H. to “get back here”. T.H. stopped and went back to Mr. B.K.. Ms. T.H.1 had L.K. by the hand and kept running down M[...] Avenue from C[...] Street. Ms. T.H.1 testified that it was at this point that Mr. B.K. called 911. When Crown counsel asked Ms. T.H.1 how she knew that Mr. B.K. called 911, she responded: “Because he had a cell phone and he said he needed police assistance, that I was kidnapping our daughter, [L.K.]”. Ms. T.H.1 said she was hiding with L.K. in someone’s backyard on M[...] Avenue when she heard Mr. B.K. talking to 911.

[19] She and L.K. then ran out of the person’s backyard and hid behind a dumpster on the property of a church where Ms. T.H.1 called 911 to tell them that she had not kidnapped their daughter and that L.K. was very scared. Ms. T.H.1 made her call to 911 at 4:11 p.m. [2]

[20] When Crown counsel asked Ms. T.H.1 whether anyone other than L. was around or arrived during this incident, Ms. T.H.1 said “not that I can recall”.

[21] Ms. T.H.1 claimed that the injuries from this assault included “a couple of bumps but no visible injuries” and “sore spots at the back of [her] head, a bad headache”. When asked by Crown counsel to expand on the “bumps”, Ms. T.H.1 said “just probably, you know, you hit yourself, it’s tender to touch, I don’t know if they were, like, lumps or just sensitive to touch, I don’t know”.

[22] Defence counsel cross-examined Ms. T.H.1 extensively regarding the sequence of events on September 15, 2018, the details of the alleged assault, what happened after the alleged assault and Ms. T.H.1’s motivation for calling 911 when she did. As I will explain in the analysis portion of my judgment, cross-examination revealed inconsistencies between Ms. T.H.1’s trial testimony and her police statement, and other frailties in her evidence.

[23] L.K.’s evidence regarding the events of September 15, 2018 was introduced by way of an Agreed Statement of Facts. The police interviewed L.K. on that date and she promised to tell the truth. The following is a summary of L.K.’s evidence:

(1) L.K. was 9 years old at the time; (2) L.K. was at the police station because her mommy and daddy were “fighting”. L.K. described that by “fighting” she means her parents shouting at each other and sometimes they swear. L.K. confirmed that there is nothing ever more to the fighting than yelling and shouting; (3) L.K. was present when her mom and dad argued in the backyard that morning; (4) L.K. described the dog getting out and, at that moment, her dad was leaving up the street with his bike. Her dad put his bike down and helped her get the dog back in the house by getting the leash; (5) After getting the dog back in the house, her mother took them to C[…] parking lot where there was shade because her mom needed to breathe; her mom thought her dad was behind them, but he really wasn’t; (6) Her mother left her brother (T.H.) and her at P[...] Park to go and get them Gatorade. L.K. explained that her dad found them at P[...] Park and brought them home, while walking his bike; (7) When they returned to the house, her mom was not there. Her dad locked all the doors to the house. When her mother arrived at the house, L.K. let her in. Her mother told her and her brother to run away from dad with her. L.K. ran with her mother but T.H. did not; (8) L.K. explained that, on this day, she did not see anyone get hurt at the house. L.K. did not see anyone touch anybody, either on purpose or even by accident; (9) L.K. indicated that she was not scared to tell the police officer anything, and that telling the truth made her feel warm inside, a feeling she liked. Lying “makes her feel so bad after”.

[24] T.H.’s Agreed Statement of Fact contained less detail than L.K.’s. He was 13 years old at the time. T.H. told the police that his mom and dad were yelling back and forth in the backyard at around 9:00 a.m. on September 15, 2018. He did not see his mom and dad arguing. T.H. did see his dad get into a fist fight with “S.M.” in the middle of the road that day. T.H. said no one was hurt that day.

Analysis

The Presumption of Innocence

[25] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320 [3]. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.

[26] I can accept all, some or none of a witness’s evidence. R. v. H.(S.M.), 2011 ONCA 215 [4] The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation. [5]

Concerns About Ms. T.H.1’s Credibility:

[27] Defence counsel mounted an attack upon Ms. T.H.1’s credibility by cross-examining her about prior reports of domestic abuse that she had made against Mr. B.K.. Ms. T.H.1’s testimony in this area, and the evidence that the Defence led through P.C. Roechner, negatively impacted Ms. T.H.1’s credibility as a witness. The credibility concerns that I identified in this area of questioning also informed my assessment of the credibility and reliability of Ms. T.H.1’s evidence relating to the three allegations of assault. R. v. MRS, 2020 ONCA 667, at para. 64 [6]

[28] Ms. T.H.1 claimed that she did not call the police to report the assaults by Mr. B.K. in August of 2018 because she was afraid of him. She said that her fear of Mr. B.K. also caused her to delay reporting the September 15, 2018 assault until the afternoon.

[29] Defence counsel suggested to Ms. T.H.1 that her fear of Mr. B.K. had not prevented her from calling police before. Ms. T.H.1 replied, “I don’t recall calling the police before”, and she maintained that she had no recollection of ever calling the police on Mr. B.K. before September 15, 2018. According to Ms. T.H.1, neighbours had called the police numerous times to attend at her and Mr. B.K.’s residence, but she had not been the person who made these calls.

[30] Defence counsel confronted Ms. T.H.1 with a Hamilton Police Service general occurrence report dated December 8, 2017 which showed that police were dispatched to Ms. T.H.1’s home for a 911 call where a female advised that she was assaulted and that she was bleeding.

[31] This December 8, 2017 police occurrence report included the following information which Defence counsel put to Ms. T.H.1 in cross-examination: a) the police spoke with Ms. T.H.1 when they arrived, and she told the police that she and Mr. B.K. had only had a verbal argument over Mr. B.K. saying she was lazy; b) Mr. B.K. left before police arrived; c) Ms. T.H.1 told police that she was done with the relationship; d) Ms. T.H.1 told police that there were no threats of violence, that she had not been assaulted, and that she was not bleeding and did not require EMS; e) when the police asked her why she said that she had been assaulted and was bleeding, Ms. T.H.1 told the police that she had said that to scare Mr. B.K.; and f) the police did not observe any signs of an assault or disturbance.

[32] When confronted with the above details from the December 8, 2017 occurrence report, Ms. T.H.1 maintained that she did not recall calling the police on this occasion, nor did she have any memory of the police speaking to her about why she told 911 that she was bleeding when she was not. She testified as follows:

No, no, I don’t recall. So, that being a definite statement that I never called the police, I retract my statement and say, you know, there’s a possibility that I may have called the police in the past but I don’t recall calling the police.

[33] I found Ms. T.H.1’s claim that she could not remember calling the police before September 15, 2018 to be implausible in the context of the totality of the evidence. The December 8, 2017 call was made approximately nine months before her September 2018 call to 911. Furthermore, it was only after she was confronted with the December 8, 2017 occurrence report that she sought to “retract [her] statement” and say that there was a possibility she may have called the police in the past.

[34] P.C. Roechner testified that she responded to the 911 call on December 8, 2017. When the officer arrived at the address associated with the call, she spoke with Ms. T.H.1 and confirmed that she (Ms. T.H.1) was the 911 caller/complainant. P.C. Roechner testified that Ms. T.H.1 advised her that she (Ms. T.H.1) told the 911 dispatcher that she was assaulted and bleeding to scare Mr. B.K. when she called 911, and that she had not actually been assaulted. Rather, there had only been a verbal argument between the couple, nothing physical. Furthermore, the officer observed no injuries on Ms. T.H.1 and no signs of a disturbance or a struggle in the home. Based on the information she gathered from Ms. T.H.1 and her other observations, P.C. Roechner did not believe that Ms. T.H.1 had been assaulted.

[35] P.C. Roechner’s testimony establishes that Ms. T.H.1 misled the police in her December 8, 2017 911 call by making a false complaint of assault, causing the police to embark upon an investigation. Ms. T.H.1 demonstrated a willingness to provide false information to the police in her December 8, 2017 call, with the apparent motive being simply to scare Mr. B.K.. Ms. T.H.1’s carelessness with the truth on this prior occasion makes it difficult to accept her evidence at this trial regarding the alleged assaults by Mr. B.K..

[36] When Defence counsel confronted Ms. T.H.1 with a second police occurrence report dated July 27, 2018, which showed that she had called police on that date to report that Mr. B.K. had locked her out of the home, Ms. T.H.1 changed her evidence from not recalling any previous calls to the police to “yes, I remember this one”. She went on to say:

I didn’t recall calling the police. It was an ongoing calling the police, but I didn’t remember this, this incident until now.

[37] Ms. T.H.1’s evidence changed from not recalling any calls to police prior to September 15, 2018 to “an ongoing calling the police”. Again, I find it implausible that Ms. T.H.1 would not have recalled this 911 call she made in July 2018, approximately two weeks before the assaults she alleged occurred in August 2018.

[38] I find that Ms. T.H.1’s testimony that she could not recall prior calls to police was contrived to support her evidence that she delayed reporting the August 2018 and September 15, 2018 assaults due to her fear of Mr. B.K.. It was only after she was confronted with extrinsic evidence of the calls that she retracted her testimony about her faulty memory of these prior 911 calls.

The Effect of Inconsistencies on the Credibility and Reliability of a Witness’s Evidence:

[39] As the Ontario Court of Appeal stated in R. v. M.G.:

23 Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

24 The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for the British Columbia Court of Appeal in R. v. B. (R.W.) (1993), 40 W.A.C. 1:

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.

In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This is particularly so when there is no supporting evidence on the central issue, which was the case here. [7]

The Assault on the Stairs in August of 2018:

[40] With respect to the alleged assault on the stairs, there were material inconsistencies between what Ms. T.H.1 said in her police statement and what she testified to at trial.

[41] In her trial testimony, Ms. T.H.1 described how Mr. B.K. pushed her down on the stairs and then was on top of her and held her jaw and face down on the hard stairs, with the metal footing of the stairs digging into the left side of her ribs and back. She testified that Mr. B.K. did not strike her, other than the push.

[42] In her police statement, however, Ms. T.H.1 told the police officer that Mr. B.K. had punched her in the head maybe a couple of times. She described the assault as: “he came after me and he grabbed me, and he shoved me down and he held me down and he hit me” . When the police officer asked Ms. T.H.1 whether the punches to her head were hard, she responded, “Yeah, well, yeah, it didn’t tickle”.

[43] At trial, Ms. T.H.1 did not recall any marks resulting from this assault. However, Ms. T.H.1 told the police officer that she “ had bruises everywhere” after this assault on the stairs.

[44] I find the above inconsistencies to be material. Ms. T.H.1 described the assault itself in a materially different way to police than she did at trial, and the inconsistency in her description of the injuries (no marks vs. bruises everywhere) is also troubling and calls into question the credibility and reliability of her allegation regarding the assault on the stairs.

[45] I have also considered these inconsistencies in the context of the evidence as a whole, including my concerns about Ms. T.H.1’s testimonial credibility, which I outlined above. Having considered the totality of the evidence, I am left in a state of reasonable doubt with respect to the allegation that Mr. B.K. assaulted Ms. T.H.1 on the stairs in August 2018.

The Assault in August of 2018 witnessed by Mr. B.K.’s mother:

[46] The cross-examination of Ms. T.H.1 on the August 2018 assault allegedly witnessed by Mr. B.K.’s mother, R.K., again revealed material inconsistencies between what she said in her police statement and what she testified to at trial.

[47] At trial, in examination-in-chief, Ms. T.H.1 testified that Mr. B.K. assaulted her in front of his mother and the children, L.K. and A.K. She also recounted how Mr. B.K.’s mother and the children were all yelling at Mr. B.K. to stop hitting her. In cross-examination, Ms. T.H.1 agreed with Defence counsel’s suggestion that she had a memory of the children yelling at Mr. B.K. to stop hitting her, and that it was something that she will never forget.

[48] Ms. T.H.1’s testimony changed when she was confronted with the police statement she gave on September 15, 2018. Defence counsel referred Ms. T.H.1 to the portion of her statement where she told the police officer that R.K. was present, but the children were at an aunt’s house that day. It was at this point that Ms. T.H.1 claimed that she must have her day mixed up because R.K. often visited with the children. Ms. T.H.1 stated that she must have mistaken it for another incident with Mr. B.K. and the children. She went on to say, “the children did witness quite a bit”.

[49] I reject Ms. T.H.1’s explanation for this inconsistency as implausible. I found her testimony that she had mistaken this incident for another incident to be contrived, and an attempt to explain away a significant discrepancy between her trial testimony and her police statement. A truthful and reliable witness would be unlikely to be mistaken about details like the presence of the children during the assault and the children pleading with their father to stop hitting their mother.

[50] There was another troubling inconsistency relating to this incident. In her examination-in-chief, Ms. T.H.1 testified that Mr. B.K. grabbed her by the shirt and punched her three or four times in the back of the head, and that there were no visible injuries from this assault.

[51] However, in cross-examination, Defence counsel pointed out to Ms. T.H.1 that she told the police officer on September 15, 2018 that this assault resulted in bruises on her back and her jaw. Ms. T.H.1 then said that her police statement must be true since it was taken a short time after the assault.

[52] Defence counsel asked Ms. T.H.1 to explain how she got bruises on her jaw from punches to the back of her head. The following exchange occurred between Defence counsel and Ms. T.H.1:

Q. Okay. Can you explain to me how you get bruises on your jaw from punches to the back of your head? A. The side of my jaw, you know, if you turn a certain way, like, on the side. Q. Okay. Your testimony was that you were punched in the back of the head because you turned away from him and you were punched in the back of the head. Is your testimony now changing that you were punched in the [indiscernible]. A. No, no, he did punch me in the back of the head and maybe when I moved he did get me in the back, in my jaw. My injuries that I did – that occurred from B.K. wasn’t to be put lightly, so if my statement states where my injuries were, then it’s more accurate as remembering three years later. Q. So your testimony, then, yesterday under oath was not accurate? A. To remember exactly if I had marks or injuries. It’s hard to recall. Bumps, bruises, everything along the many years I’ve been in a relationship with B.K. and all the fights and arguments and bumps and bruises along the way, which incident equals to which one. But if my statement states that I had bumps or bruises, or bruises on my jaw, then clearly that was accurate. Q. Okay. So, your evidence yesterday, though, did not include any evidence about you receiving a punch to the jaw in front of R.K., correct? A. He punched me in front of R.K., the back of the head, the jaw, I’ve had marks on me from B.K.. Q. Okay. And your testimony yesterday, though, when you explained the incident did not include a punch to the jaw, correct, in front of Ms. R.K., that allegation? A. Correct.

[53] Ms. T.H.1’s original trial testimony that there were no visible injuries from this assault was inconsistent with her police statement, which she adopted in cross-examination, that she had bruises on her back and her jaw. Ms. T.H.1’s attempt to explain how she had bruises on her jaw and her back from being punched on the back of her head was confusing and did not amount to a satisfactory explanation at all. At first, she speculated that “maybe when I moved, he did get me in the back, in my jaw”. She then went on to claim that there had been so many fights and arguments and bumps and bruises that it was difficult to recall “which incident equals to which one”. Ms. T.H.1 could not provide clear and cogent evidence about how the assault she alleged resulted in the injuries she reported to the police.

[54] The inconsistencies and weaknesses in Ms. T.H.1’s evidence regarding this August 2018 incident, coupled again with the credibility concerns I identified above, leave me in a state of reasonable doubt with respect to the charge of assault pertaining to this incident.

The September 15, 2018 Assault:

[55] Ms. T.H.1 told the police that L.K. saw Mr. B.K. hit her in the backyard on September 15, 2018. According to Ms. T.H.1, she was sure that L.K. saw Mr. B.K. hit her because she saw L.K. cover her face. When Ms. T.H.1 realized that L.K. saw Mr. B.K. hit her, it gave her (Ms. T.H.1) the strength to go on. Ms. T.H.1 disagreed with Defence counsel’s suggestion that L.K. did not see Mr. B.K. hit her that day.

[56] L.K.’s evidence, which was introduced through an Agreed Statement of Facts, includes evidence which is inconsistent with Mr. B.K.’s guilt. I must, therefore, consider and apply the framework enunciated in R. v. W.(D.), [1991] 1 S.C.R. 742 [8] to this evidence. L.K. did not see anyone get hurt at the house, and did not see anyone touch anybody, either on purpose or even by accident.

[57] In R. v. Stennett, 2021 ONCA 258, the Ontario Court of Appeal said the following about informal admissions:

Informal admissions may be labelled or designated "Agreed Statement of Facts", but that does not make them so. Those that recite what a witness would say retain their true character, however they may be styled. An agreement about what a witness could say or would have said is not an agreement that what they say is true [citation omitted].” [9]

[58] L.K.’s evidence that she did not see anyone touch anybody on purpose or by accident is in direct conflict with Ms. T.H.1’s claim that she was certain that L.K. saw Mr. B.K. hit her because she (L.K.) covered her face. The parties agreed to introduce L.K.’s evidence in written form, no doubt to spare the child from having to testify at the trial. This is a laudable approach to the reception of a young child’s evidence. However, it does raise questions about how a trier of fact can weigh and assess that evidence without any viva voce testimony from the child or any challenge to the veracity of the child’s version of events.

[59] Corroboration of Ms. T.H.1’s allegation of assault is not a requirement for a finding of guilt. However, in the circumstances of this case, Ms. T.H.1’s account of the assault suggested that L.K. would be able to provide corroborative evidence. That turned out not to be the case. Instead, the evidence of L.K., the only other eyewitness to the events in the backyard that morning, contradicted Ms. T.H.1’s claim that she (L.K.) witnessed the assault.

[60] There was no other evidence led at the trial that would cause me to doubt the veracity of L.K.’s version of events. L.K.’s contradictory version of events contributes to my finding that I am left in a state of reasonable doubt about the September 15, 2018 assault when I consider L.K.’s evidence in the context of the totality of the evidence, including the other frailties in Ms. T.H.1’s testimony.

[61] Defence counsel cross-examined Ms. T.H.1 extensively about the sequence of events from that day and her motivation for calling the police that afternoon.

[62] The cross-examination revealed a series of inconsistencies. For instance, contrary to Ms. T.H.1’s testimony in-chief that she went inside to pack bags immediately after the assault, in her police statement she told the officer that she ran away and that there was an altercation on the street, with Mr. B.K. chasing her, at which time she called 911. She told the officer: “As I was calling 911, I said, ‘I’m not going to let him do that to me anymore’”.

[63] When confronted with this discrepancy during cross-examination, Ms. T.H.1 said she may have started calling 911 but didn’t recall speaking with a dispatcher until later that afternoon. Ms. T.H.1 first attributed this inconsistency to the fact that these types of incidents were “a daily occurrence”. When pressed further, she attributed the discrepancy to her difficulty in recalling traumatic events, and her tendency to “close off” traumatic experiences because of a brain injury. I do not accept either explanation given by Ms. T.H.1 for this inconsistency because, as I explained above, I found her credibility as a witness to be lacking. Furthermore, neither explanation provided by Ms. T.H.1 gives me any confidence that I can rely on her to be an accurate historian of what occurred on September 15, 2018.

[64] There were other frailties in Ms. T.H.1’s testimony that arose in cross-examination. For instance, in her trial testimony she stated that, after she bought the drinks for the children at the store, she never made it to P[...] Park because she saw T.H. in the window of the home. This testimony was in direct contrast to her police statement wherein she described going to P[...] Park, searching for the children, and being scared because she didn’t see the children there, and didn’t know where they had gone. This is yet another inconsistency in a series of inconsistencies.

[65] The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. R. v. Batte (2000), 49 O.R. (3d) 321 (Ont. C.A.), at para. 121 [10] Ms. T.H.1 denied Defence counsel’s suggestion that she fabricated the assault allegations because Mr. B.K. had caught her using drugs and she was fearful that he would report her drug use and the fact that she had left the children at the park, which would result in her losing her children and home. Notwithstanding Ms. T.H.1’s denial of this suggestion, it is clear from a close review of Ms. T.H.1’s testimony that, in September of 2018, she was concerned about the involvement of CAS with the family.

[66] More particularly, a number of times during her September 15, 2018 interview, Ms. T.H.1 told the police officer that she was concerned that if the police were called to their residence one more time, the CAS would apprehend the children. She told the police officer that this was the reason she did not call about the assaults earlier.

[67] Ms. T.H.1 made her call to 911 at 4:11 p.m. on September 15, 2018. She agreed with Defence counsel that her call to 911 was prompted by hearing Mr. B.K. on the phone with 911 reporting that she had kidnapped their daughter. Defence counsel’s cross-examination on this topic was directed at showing that Ms. T.H.1’s complaint of domestic violence was motivated by the prospect of the CAS apprehending her children because Mr. B.K. was reporting her wrongdoing. In essence, the Defence theory was that Ms. T.H.1 fabricated allegations that she was fleeing an abusive relationship with the children in order to avoid having to account to CAS for the police being called to attend at their home yet again.

[68] Although Ms. T.H.1 denied any motivation to fabricate evidence, a portion of her testimony raised the real prospect that such a motivation did indeed exist. In her examination-in-chief, Ms. T.H.1 said that, aside from “L.”, she could not recall anyone else being around or arriving during this incident on September 15, 2018.

[69] Like many other parts of her testimony, this was inconsistent with what she told the police on September 15, 2018. The following exchange occurred between Defence counsel and Ms. T.H.1:

Q. And yesterday you indicated that other than the tall friend, L., that you saw B.K. walking with, no one else was involved on that day? A. That I know or know of, no. Q. Okay. Except I’m going to ask you to turn to page seven of your statement where you indicated to police that at the moment you’re running away with [L.K.], Mr. B.K. got into a fight with a friend in the middle of the street. A. Correct. Q. Okay, and who was that friend? A. S.M., I believe it was S.M.. Q. S.M.. And what’s S.M.’s last name? A. M[...] or M[...], M[...]. Q. S.M., okay. Why did you tell police that you didn’t know who S.M. was on September 15 th , 2018? A. I don’t – I don’t recall. Q. Okay, I’m going to take you to page 21 of your statement. A. Okay. Q. Okay. The officer says to you, “Okay, also you mentioned that at one point in time when you and [L.K.] were leaving, B.K. was arguing with a friend,” and you say, “When, today?” and the officer says, “In the street, yeah.” You say, “Yeah. My friend was coming by to say hi and I don’t know, B.K.’s very jealous.” And the officer says, “Do you know who the friend is?” you say, “No, no, it was just one of his friends. He has lots of friends. He knows everybody and I don’t know, B.K., even if I don’t know them, B.K. thinks the worst that, you know, I must be running around on him or whoever.” Why did you tell the officer you didn’t know who the friend was when in fact you did? A. I’m not sure. Q. You lied to the officer? A. No, I just wasn’t sure. Q. You weren’t sure of what, Ms. T.H.1? A. Pardon me? Q. You weren’t sure of what? A. I just didn’t want to be in trouble, I didn’t want to get anybody else in trouble , I didn’t – I just – you know, I just wanted everything just to stop. Q. Okay. So, you lied to the officer? A. I didn’t want to involve any more people that, you know, in this . Q. You didn’t want to involve any more people in this, I understand that, Ms. T.H.1, but when the officer asks you and you’re giving your police statement on September 15 th , “Well, who was this friend?” you tell the officer you don’t know who he was and that was not true. A. Correct. Q. So, you lied to the officer. A. Well, I was scared to get anybody else involved. Q. And when you tell the officer that, you know, you don’t know why S.M. was there, in fact you did know why because you were messaging S.M. that day on Facebook, correct? A. Correct, for help. Q. And to be clear, S.M. is also Bones? A. Correct. Q. And you provided these messages that you gave to S.M. to the Crown on the first day of trial in February of this year? A. Correct. Q. Ms. T.H.1, you’ve used crystal meth in the past? A. I have. Q. Fair to say it was an issue for you? A. It was, yes. Q. Crystal meth was your drug of choice? A. Correct. Q. You were using crystal meth in 2018? A. Correct. Q. S.M. is an individual who would provide you with crystal meth? A. No, he wasn’t providing me with crystal meth. Q. You would use crystal meth in the presence of S.M.? A. Correct. Q. I’m going to suggest to you that the three hours that your children were sitting at P[...] Park that day, you were using crystal meth with S.M.? A. No, I was not [emphasis added].

[70] At first, Ms. T.H.1 was less than forthright with Defence counsel when she said that she could not recall and was “not sure” why she didn’t tell police on September 15, 2018 that S.M. was the person Mr. B.K. fought with when she ran away with L.K. Ms. T.H.1 admitted that she had used crystal meth in the presence of S.M. in the past, although she denied using crystal meth with him that day.

[71] When pressed further in cross-examination about why she failed to identify S.M. to police when she knew his identity, Ms. T.H.1 conceded that “[she] just didn’t want to be in trouble” and “didn’t want to get anybody else in trouble”. Ms. T.H.1’s willingness to withhold information from the police that was potentially relevant to the police investigation because she did not want to be in trouble or get anybody else in trouble raises real concerns about the credibility and reliability of the balance of her evidence, especially as it relates to the events of September 15, 2018, including her allegation that Mr. B.K. assaulted her on that date.

[72] Based on the totality of the evidence, and my concerns about Ms. T.H.1’s credibility, I am unable to find beyond a reasonable doubt that Mr. B.K. assaulted Ms. T.H.1 on September 15, 2018 as Ms. T.H.1 alleged.

Conclusion

[73] Ms. T.H.1’s evidence relating to each of the three assault allegations was marked by a series of inconsistencies and frailties. Ms. T.H.1 was a witness who demonstrated carelessness with the truth, and the false complaint of assault that she made against Mr. B.K. in her 911 call on December 8, 2017 negatively impacted upon her testimonial credibility.

[74] For the reasons set out above, I find Mr. B.K. not guilty of the three charges of assault relating to Ms. T.H.1.

Released: November 12, 2021 Signed: Justice J.P.P. Fiorucci

Footnotes:

[1] On October 20, 2021, I found Mr. B.K. not guilty of all charges and advised that written reasons would follow. These are my written reasons. [2] Transcript of Evidence of P.C. Robert Lawther, April 21, 2021, pp. 8-9. [3] R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.). [4] R. v. H.(S.M.), 2011 ONCA 215. [5] The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at pg. 47. [6] R. v. MRS, 2020 ONCA 667, at para. 64. [7] R. v. M.G. (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at paras. 23-24. [8] R. v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.). [9] R. v. Stennett, 2021 ONCA 258, at para. 58. [10] R. v. Batte (2000), 49 O.R. (3d) 321; 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 121.