ONTARIO COURT OF JUSTICE

CITATION: R. v. A.W., 2021 ONCJ 696

DATE: June 28, 2021

COURT FILE No.: Brampton 3111 998 20 524

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

A.W.

Before Justice G.P. Renwick

Heard on 29-30 September, 01, 19 October, 2020, 28 April 2021, and 17 June 2021

Reasons for Judgment released on 28 June 2021

C Vanden Broek.................................................................................. counsel for the Crown

G.D. Butler........................................................................... counsel for the defendant A.W.

Restriction on Publication

Pursuant to section 486.4 of the Criminal Code, there is a continuing Order in place making it an offence for any person to publish, broadcast, or transmit in any way any information that could identify any child witness in this matter. This decision does not refer to any child witness by name. This decision may be published.

REASONS FOR JUDGMENT

RENWICK J.:

INTRODUCTION

[1] The Defendant is charged with assaulting his common law partner causing her bodily harm, assaulting his child (the “child complainant”), and threatening the child complainant with bodily harm. Two other charges have already been dismissed on consent on 17 June 2021.

[2] The trial took place over several days during a period of many months. I heard from two child witnesses, one civilian witness, five police witnesses, and the Defendant during this trial. The adult complainant, the Defendant’s wife and the mother of the two children witnesses, did not testify. Videotaped statements of the two children witnesses were admitted into evidence. As well, a videotape, which was referred to by the prosecutor as “the jump video,” and photographs of the complainant’s apparent injuries became exhibits on this trial. There were several evidentiary rulings. For many reasons, which may become apparent, this was a difficult trial that has ended with a difficult decision.

[3] The only real issue that remains is whether the prosecution has proven the remaining allegations beyond a reasonable doubt. Ancillary issues include the assessment of witness credibility and reliability and the value of circumstantial evidence.

GENERAL LEGAL PRINCIPLES

[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charges have been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any single element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant committed an offence, he will be acquitted of the charge.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities.[^1] If after considering all of the admissible evidence, I am sure that the Defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[6] Given the conflicting evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into five propositions:

i. I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

ii. If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;

iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

v. Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[7] The prosecution also relies upon circumstantial evidence (the complainant’s injuries and the Defendant’s behaviour with the police, for instance) to meet its burden. In order to be satisfied that the Defendant caused the apparent injuries to the complainant beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence.[^2] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its burden.

[8] Lastly, I recognize that child witnesses may remember and recount events differently than more mature witnesses. This is not to say that younger witnesses are deserving of special consideration, or, that their evidence should be scrutinized to a lesser degree than older witnesses. Rather, “every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate.”[^3]

[9] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, I have referred to transcripts of the proceedings, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[10] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, to listen to parts of the digital recordings, and to read excerpts of the transcripts of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about the trial until the closing submissions were made and my review of the evidence was complete.

THE EVIDENCE AND FINDINGS OF FACT

[11] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[12] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[13] In this specific trial, because the child witness (the older of the two children; i.e., not the child complainant) did not adopt her videotaped statement to the police, I must assess the ultimate value of that hearsay statement, which has been admitted into evidence during the trial, and the effect of this evidence alongside the inconsistent viva voce testimony of the child witness. Obviously, a trier of fact must exercise a great deal of caution before reliance upon conflicting evidence from a single witness.

The Testimony of the Child Complainant

[14] The child complainant (“T”) testified first. He was nine years old at trial and a year younger on the date of the allegations. T was a poor witness. This is partly because of his age and his overall inability to testify with precision. It was also because he seemed to be guessing at points in his testimony. For instance, other witnesses (T’s sibling, and police officer James Oliver) testified that T’s mother, K.M. (the alleged victim of the assault causing bodily harm count), was only at the hospital for a brief period of time. T testified in chief that he thought his mother was in the hospital for two weeks, but he did not really remember.

[15] There were many areas of his testimony in chief where T did not have good recall: whether his mom was knocked out; whether his mother had bruising on her face; why he said his sister should not have told his father where the phone was; what he did the day he did not go to school after his mom was hurt; if he has spoken with his mother about the allegations; whether his dad pulled his mom to the ground; whether his mother got up after she was on the bed; how long his mother was on the bed; if his dad was punching his mom; what he and his sister did about his mom’s bleeding; he “kind of” remembered things while testifying; and he could not remember if his mom spoke to him about what happened.

[16] The prosecutor applied to have the child’s videotaped statement, taken six weeks after the alleged incidents, admitted pursuant to s. 715.1 of the Criminal Code. That application was opposed during the trial in light of the witness’ poor recollection. I ruled that the earlier statement to the police was admissible on the basis that the child told the court that he had told the truth when speaking to the police.

[17] In cross examination, T said that his mother had hit his father during the incident, but when asked how, he said he did not really remember and he thought he did not see that part. When asked if T had ever seen his father hit his mother, he said, “not really,” he thought he may have seen that, but he could not remember. The child testified that his mother was quite drunk. At one point, the child testified that her drunkenness caused her to fall. T also described his father having kicked his mother to prevent her from jumping out of the upper floor window. In the child’s view, his mother was “really drunk.”

The Video Statement of the Child Complainant

[18] In his video statement, T spoke of having been awoken by his parents fighting. He heard banging. He described his dad having punched his mom and then he pulled her hair and after he started hurting her. It is unclear in this part of his statement whether these are things he heard, or heard about, or saw with his eyes.

[19] T did tell the police that he “grabbed” his father’s arms so that “he can stop punching my mom.” At first he said this happened in his room and then he clarified it was in his parent’s room, and after hearing the bang, he went to check and he saw them fighting. T described that he was scared because “they came at me.” He said he grabbed a bat and he threw a candle at his father. T told the police that his father grabbed his head (which he denied while testifying) and “he kept on punching my mom, and after she knocked out.” T also told police that his father poured a bucket of water on his mother and tried to suffocate his mother by plugging her nose with his hands. When asked what happened next, he said he was told to shut up and his father told him he would beat him up also.

[20] The officer interviewing T asked clarification questions. The child described how his father was hurting his mother:

A. Like punching her, kicking her, grabbing her.

Q. And where did, can you tell me about the punches?

A. Like on her waist and the side of her body. And after where he grabbed her was he pulled her, he pulled her on by her hair to get her onto the ground. Then he started kicking her in the face when she was on the ground.

[21] T told the police that his father had been blocking the door, “so we can’t get out.” When asked how many times his mother was kicked, he said, “Probably over ten.”

[22] When asked how his mother became knocked out, he said “From our dad stomping on her face.” When his mom was knocked out, T was told to wait. Then he described his dad touching his mom in inappropriate spots. Then when she came to the bed, he was trying to suffocate her by pinching her nose.

[23] T said to police that his dad threw water on his mom to hurt her. He also told police that he did not go to school for one day.

[24] The video statement is approximately 26 minutes in length before the officer steps out and then returns for another five minutes at the end.

[25] T is an eight year old talking about things that are distressing for any person, much less a child.

[26] In the end, even after a consideration of all of the other evidence, I do not find that T was an accurate or reliable witness. His lack of recall also affected his credibility. I find that I cannot attach much weight to this child’s viva voce evidence. The video statement is compelling, however, again, there are concerns about the accuracy of the statement:

i. The video is taken approximately six weeks after the incident giving rise to the contents;

ii. T is told that the police are making a “movie” twice during the taking of his statement;

iii. The child is aware that his father has been arrested; and

iv. The child continued to live with his mother and sister (also a witness in these proceedings), in the intervening period before the child’s statement was taken.

The Testimony of the Child Witness

[27] The child witness (“L”) was 11 years old when she testified. She claimed to have a poor memory of much of the incident and the things she described in her videotaped statement.

[28] L testified that she loves her parents and was afraid of losing them. L claimed while testifying that her mom was “really drunk” and was trying to hurt herself during the incident. When she was shown exhibit 2 – a video clip taken by the Defendant on a phone as he pretended to call police, L said she recalled it. The prosecutor asked in a leading way whether that part of the incident occurred before or after “the kick.” The child testified that it was before the kick.

[29] L did remember that her dad was arrested at night and that her mom went to the hospital that night and she was released the next morning. This is corroborated by the police evidence led at trial.

[30] During her testimony in chief, L said that there was no bat involved in the incident, which contradicted the evidence of T that he went downstairs to get the bat and his father took it from him. L recalled her mom punching her dad, trying to hurt him. She is aware that her dad has “mental issues,” but she was unsure what that meant or how she knew that. L testified in chief that she did tell police that her mom’s face was square, after the incident. L testified that she meant that her mom’s face was swollen, but that did not help her remember the incident or what caused the swelling.

[31] When the prosecutor sought to admit the child’s statement to police on the trial, the Defendant did not concede that the witness had adopted her prior statement. The court ruled that the witness had not adopted her statement up until that point. More questions were asked of the witness by the prosecutor.

[32] L testified that unlike the details in her statement, her father had kicked her mom once. She could not say if any parts of her statement to the police were untrue. She re-iterated that she did not know if she had told the police the truth, despite having testified initially that she had told the police the truth.

[33] The prosecutor sought to introduce L’s statement for substantive admissibility. I ruled that the statement was admissible. Then, there arose a question about the voluntariness of what the child witness had told the truth. I re-opened the application to permit the prosecutor to lead evidence respecting the voluntariness of L’s videotaped statement to police. After hearing again from L, and a police officer who interviewed the child, I ruled that the statement was voluntarily made and I admitted the statement into evidence in this trial.

[34] The cross examination of L was only about one quarter of an hour. The child witness gave evidence favourable to the Defendant: her father was trying to clean up the blood on her mom’s face; her mom was “super drunk;” she was trying to harm herself; her dad was trying to stop her mom from harming herself; she did not recall saying he had kicked her mom once; she did not recall any assaults upon her mom; she did not recall her mom’s bruises; she did not recall her brother’s bed being broken; she did see her mom assault her dad, but she could not describe what that was; she believed her mom would jump out of the window and her dad was trying to stop that; she believed her mom was trying to jump out of a window because she was drunk; her mom’s injuries were caused by T throwing the glass candle and it breaking; her mom fell because she was drunk; her dad did not punch or slap or touch her mom inappropriately; her dad did not splash water on her mom; she agreed that her mom was more aggressive with her dad than the other way around; she did not recall staying home from school; she could not remember how many times her mom fell or if it was more than once; and her brother’s bed was not broken, it was put together improperly.

The Video Statement of the Child Witness

[35] Four days after the alleged assaults, L gave a video statement to police. The statement was ruled admissible on the trial. In her statement, L said she would tell the truth. She described how the incident began with her parents fighting with each other. The next day, her mom was injured on her face and her dad made her soup and gave her water. L described her mom waking up early and running in the hall and falling. It was unclear in the statement whether this was heard or seen or both. When asked clarification questions, L told police that she “saw them hitting each other and stuff.” It ended “With my mom on the floor bleeding.” The next day her dad told her they would have to stay home and care for her mom. L told police:

I didn’t say anything, but ‘cause I was scared. But I did see her face was kind of like a square. It was all like she had, she didn’t have the purple eye. I think when it swelled down she got it.

[36] L described that she thought her “dad noticed what he did was wrong, so then he start taking care of my mom. He laid down with my mom downstairs watching Netflix.”

[37] L also described when the police officers came to the family home two days later and knocked on the door. She woke up her dad. She explained that she had been afraid that she would lose her mom and dad.

[38] When asked to describe her mom’s injuries, L described cuts on her mom from the glass candle that was thrown by her brother, T. She told police her mom was bleeding on her chest from that. L also said her mom was bleeding from her nose. She told police the candle was thrown when her mom was on the floor and her dad was standing. L re-iterated that the argument began in the bedroom. Her mom was trying to get out the window, “Because like that’s the only way we can get out of the house.” L described her, her brother, and her dad trying to stop her mother, “Cause there’s like she can hit the car really bad that she can break a few bones at least and not make it.” L told police that her mom wanted her phone to call police. When L said the phone was in her brother’s room, her mom went there: “My dad took the phone quickly, and then they just start hitting each other and stuff.” She describes the kick: “Then my dad kicked her, that’s how she got that, and that’s it.” L confirmed when asked that her father had kicked her mom’s face, one time. This caused her mom’s face to bleed and she and her brother were trying to help their mom. After a break, L described how her mother tried to get her phone, which was in T’s room.

[39] I have a great deal of difficulty with L’s testimony in court. I did not believe that she truly could not remember many of the things she spoke about. I completely disbelieved her evidence that she could not recall on the second day she testified about things she had said the day before.

[40] I have found the video statement of L, credible and compelling. She said she would tell police the truth. The child did not waver in the details she provided. She did not appear to be embellishing things. She was 10 years old when these events occurred. Her statement was taken in the hours following the Defendant’s arrest, some three days after the incidents she recounted. Unlike the statement of T, there were no incongruent details or internal inconsistencies.

[41] I have also relied to a limited extent on the photographs of K.M.’s injuries taken by police approximately an hour before L provided her statement. They provided limited corroboration to L’s statement because K.M. appears to have been in a physical fight. Her face is swollen. She has a cut on her chin, bruising on her jaw/neck area, and her eyes are very badly swollen and discoloured. K.M.’s nose appears uninjured, save for some bruising across the top of the bridge near her eyes. Her left temple and eye appear badly bruised and discoloured. She has scrapes on her upper left chest and shoulder similar to the description given by L. The photographs also depict that K.M. appeared to have a bruise on her left hip.

The Testimony of Krysta Massey

[42] This witness is the co-worker of K.M. She called police after receiving a strange text message from her colleague. She was concerned for K.M.’s absence from work over several days. Ms. Massey texted her co-worker. She texted again. Eventually, she indicated that if there continued to be no response she would send someone to her house. At some point, she did receive a message. She found it unusual that K.M. would text “pls” when asking her colleague not to worry. Usually, K.M. wrote in full sentences. Eventually, Ms. Massey’s boss decided to call the police to request a wellness check.

[43] Ms. Massey also testified that K.M. was different when she eventually returned to work a few months later. K.M. was not her usual, bubbly self. Instead, she was noticeably subdued, forgetful, she repeated herself, and she was wearing “blue blocker” sunglasses due to “concussion symptoms.”

[44] Cross-examination was brief. She clarified that her colleague had told her that she had suffered a concussion. This hearsay evidence was elicited by counsel during cross examination.

[45] I accept Ms. Massey’s evidence. It was believable in all respects. She had no apparent motive to embellish or fabricate. She seemed genuinely concerned for the wellbeing of her co-worker. This evidence was unchallenged by any other evidence. It too seemed to corroborate the photograph depiction of significant injuries to the face/head of K.M. as well as the police evidence of K.M.’s injuries and general unresponsiveness.

The Evidence of the Police Witnesses

[46] I do not find it necessary to detail the individual pieces of evidence provided by the four police witnesses who testified. Suffice it to say, they all appeared to testify truthfully, their evidence was supported in some respects by the Defendant’s evidence, and there was no real challenge to this evidence. Utterances made by the Defendant were admitted on consent.

[47] Police performed a wellness check of K.M. in the late hours of 25 October 2019 because K.M. had been noted missing from work for three days. It took an inordinate amount of time (approximately 50 minutes according to Constable Gary Simmons) for the Defendant to come to the door in answer to the police knocking, yelling, and banging on the door. The Defendant advised that he had been asleep and his children had woken him to answer the door.[^4]

[48] Initially, the Defendant advised that his wife was asleep and they were dealing with a family situation. The Defendant was calm. The police asked to see K.M. They were told several times by the Defendant that she did not want to speak to them. Eventually, they went upstairs and checked on K.M.

[49] K.M. was found by Sergeant Corcoran to be largely unresponsive to his calls or attempts to rouse her awake. Initially, he did not find a pulse. She was partially clothed in her bed. The sergeant observed small cuts and swelling to her eyes and cheek area. After many attempts to wake K.M., police observed that she quietly moaned and barely moved. An ambulance was called and the Defendant was arrested.

[50] Police witnesses also confirmed that K.M. had a history of violence with the Defendant. In one prior incident with the Defendant she had brandished a knife. The Defendant had never been charged in any of several prior incidents between the couple, before this matter.

[51] Constable Oliver testified that he tried to interview K.M. at 1:45 am in the early morning some hours after she was found by police and the Defendant had been arrested. He felt that she was not “all with it.” He asked if she had children and she said she did not, which he believed was inaccurate. K.M. was drowsy and largely unresponsive during the attempted interview. Constable Oliver believed that K.M. did not understand his questions. He could see injuries to her face. He decided to stop the attempted interview of K.M. Photographs of K.M.’s apparent injuries were taken by another officer around this time.

The Testimony of the Defendant

[52] The Defendant testified on his behalf. He has no criminal record. He is likeable. He earns a good living as a master technician for a major automobile company. The Defendant has never married the mother of his two children, K.M., but the longest time they have lived together has been 10 years.

[53] The Defendant testified about K.M. She has threatened him with a knife. She has threatened to cut off his penis. He began to cry while testifying about their relationship. His wife has made him worried and scared. His children have had to stop her from “acting crazy,” “saying she is gonna smash windows, driving cars on lawns.”

[54] The Defendant admitted that he has bi-polar disorder. However, because that was never explained, and there was no suggestion that the Defendant’s mental condition had anything to do with the allegations, I have not relied on that apparent condition in any way.

[55] The Defendant testified that both he and K.M. had been drinking alcohol on 22 October 2019. In fact, she arrived in one of their cars after he had left to buy cigarettes, with a drink in her hand as she pulled into their driveway. He could tell she was pretty intoxicated at that time. After a while he wanted to leave and could not find his keys. The Defendant testified that this is when K.M. started acting erratically. When pressed for details he said she was threatening to harm herself or one of them and she was “doing something that’s gonna get somebody hurt.” She was pulling down the curtains, throwing the kids around, and taking out the upper floor window screen. He testified that she has tried to do things with the windows before. She will open the windows and yell outside.

[56] The Defendant described that K.M. was taking off some of her clothes. When asked by his lawyer how she obtained the redness depicted in the photographs to her eyes, the Defendant testified, “I think when she was running, not running, when she left the bedroom to run into the other bedroom, she had fell.”

[57] The Defendant told the court in chief that K.M. fell in the other room. He used his foot to hold her down, for her own protection. He put his foot on her shoulder area. She was acting like she wanted to harm herself. When asked how, he testified, “hop out the window, like. She kept just going places where she could do harm to herself.” He testified that it may have looked like a kick from the children’s perspectives because she “was getting up so fast.” He admitted he tried to wipe the blood off of K.M. but he never touched her sexually or tried to hinder her breathing. She was cut, he said, by the candle that was thrown by T. It had hit him in the side of the head before hitting her, which caused the glass to shatter. The Defendant denied hitting or threatening his son, which are two charges on the Information.

[58] After she was calm, the Defendant took his foot off K.M. Then, according to the Defendant, she fell twice more because of her intoxication. The first time she fell, it was face down on the wooden floor. The second time, “she just fell; she was just walking and fell; just fell down; like, [pause] if you, when people, no, no.” The second time was more controlled, “she kind of just fell and lied down.” He could not say whether she had hit her head or her face on the floor. The Defendant denied ever punching K.M.

[59] The Defendant testified that he put warm water on K.M. to “make whatever was going on, to make her wake up out of it.” After that she was just “flaring [flailing] her legs and arms sort of.” After this, she came to bed. He could see blood in her mouth and he cleaned that up. That was likely from the candle hitting K.M. Her eyes did not look as they appeared in the photographs until the last day [when the police came]. On the second day one of her eyes looked like that, but it was just red. The Defendant testified he had no idea what caused K.M.’s eyes to look as they did in the photographs.

[60] The Defendant spoke about the police attendance at the home. He awoke when he heard a loud bang.[^5] He was told they had been there banging on the door for an extended period of time. Then, the Defendant mentioned a prior incident when K.M. called the police on him for no reason and a similar thing [them banging on the door] happened. He was asked by police to get K.M. He went to get her. Her eyes were open. She was just lying on the bed. She was responsive. He told her the police wanted to see her. She said she did not want to speak to police. He relayed that to police.

[61] The police asked if they could come in. The Defendant testified that he went and asked K.M. and she refused. He corroborated that he left the police downstairs and went up three or four times to speak with her at their insistence. The Defendant denied that K.M. had been unresponsive or not breathing for any of the time since she had fallen and when the police came. He also testified he did not know why police thought K.M. was unconscious when they found her. He had made her soup, which she had eaten, and she had gone to the bathroom earlier. When asked in chief how long that was before the police came, the Defendant did not know, but it was hours before.

[62] When asked why he initially denied police entry into the residence, he explained that it was not his home, it was K.M.’s and she told him that she did not want to speak to police.

[63] The Defendant also told the court that he was asked to wait downstairs and after police went up, they quickly returned downstairs and arrested him for murder: “I didn’t know what to think at that point in time. I was just, I was just, [pause] then my life was destroyed for something I didn’t do.”

[64] The Defendant was cross examined for one half-hour on the day he began to testify and for another one half-hour several months later when the trial resumed. The first part of cross examination was completely unhelpful in resolving the issues before me. The Defendant denied almost all of the prosecutor’s suggestions about why police had been called for disputes in the past. There is no evidence to contradict the Defendant. If anything, his evidence supports the theory that K.M. had called the police unnecessarily in the past.

[65] During the second part of cross examination we learned that the Defendant is about one foot taller and 40 lbs. heavier than K.M.

[66] When asked if he had been injured on 22 October 2019, the Defendant answered that he had not been injured. He denied that he was intoxicated like K.M. had been. When asked if T was in pain because K.M. tossed him onto the bed during the “jump” incident,[^6] the Defendant testified that T was scared, but he did not know.

[67] The following exchange also took place during the cross examination:

Q. You didn’t try to stop her [from jumping out the window]. Instead you pulled out a cell phone to record.

A. [pause] I definitely tried to stop her from getting out of the window.

Q. I suggest you recorded her.

A. I suggest I stopped her from hopping out of the window.

Q. I suggest that you didn’t call the police. You were pretending to call the police

A. [pause]

Q. Is that correct, Mr. W.?

A. [pause]

Q. You can hear me right?

A. I can. I can. [pause] That was after I pulled her back from the window, I pretended to call the police.

[68] The Defendant testified that he pretended to call the police when K.M. was trying to jump out the window “to calm her down.” When questioned that he did not try to call police because she was possibly trying to commit suicide, the Defendant testified that he did not know what she was doing. When asked if he did not think she might hurt herself, he responded, “I didn’t know what was going on.”

[69] When asked about why he put his foot on K.M., the Defendant responded it was to hold her down from trying to hurt herself. But when asked how she was trying to hurt herself, he responded, “She ran to that room. She dropped on the floor running there. That’s all I remember.”

[70] The Defendant did not remember K.M. having the injuries depicted in the photographs on that night. He decided to keep the children home from school because he did not know if he might have to take K.M. to the hospital for her injuries. When asked why he did not take her to the hospital, he said, K.M. did not want to go. He was asked if she was too injured to drive herself to the hospital. The Defendant said, “I didn’t really know what was going on at that time.” The Defendant denied sending the text messages to Ms. Massey on K.M.’s phone. He told the court that he tried to convince K.M. to go to the hospital. He testified:

Q. You were concerned because of a head injury?

A. I was worried about her because I didn’t know what happened. I had seen what happened; but I didn’t know the extent of how much. I can’t explain it. But no, I asked her repeatedly if she wanted to go to the hospital.

[71] The Defendant was unsure why he did not tell the police of K.M.’s condition before they went up to see her.

[72] There was no grand flaw in the Defendant’s testimony. However, he was a poor witness. Some of his evidence was implausible. I could not understand why he kept the children home from school if only because, as he claimed, he may bring their mother to the hospital. He paused a lot before answering many questions. The Defendant could not really explain how the injuries depicted in the photographs were caused, other than to say in a general way, K.M. had fallen on her face at least once. He had no answer for why he did not tell police about K.M.’s condition. He did not volunteer to the police that he had any concern for her well-being or any possible head injury.

[73] In the end, I completely reject the Defendant’s testimony. It seemed contrived. It was completely unbelievable in terms of the escalation of the initial fight, how he tried to stop K.M. from trying to jump out of the window, why he did not call the police when she was apparently acting erratically, or why he used his foot to hold her down instead of his hands. I do not accept his evidence about why he kept the children home from school. I do not accept that K.M. was in any position to answer her colleague’s text messages. It was obvious when the police found K.M. that she was completely incapacitated and largely unresponsive. I find that she had suffered an unspecified head injury on 22 October 2019 and the Defendant had lied about her unwillingness to speak to police.

[74] The rejection of the Defendant’s version of events is not dispositive of anything.

[75] I have considered the circumstantial evidence in this case:

i. Both children described to police that their mother and father had been physically fighting and he had kicked her; L said the single kick was to her mom’s face;

ii. On the basis of the photographs and all of the testimony in this case, I find that K.M. suffered multiple injuries to her head, neck, chin, face, shoulder, chest, and hip;

iii. The injuries left marks that were visible and recorded by photographs three days later;

iv. K.M. was largely unresponsive when police first approached her; she was unable to understand questions and denied having children when police attempted to interview her hours later;

v. The Defendant did not call an ambulance or otherwise try to get medical help or get K.M. to a hospital despite her lethargy and physical signs of trauma;

vi. The Defendant kept the children home from school the next day;

vii. The Defendant texted a message to K.M.’s colleague, Ms. Massey to explain her unreported absence from work;

viii. The Defendant did not answer the door for 50 minutes while the police attempted to make contact with the occupants of K.M.’s residence;

ix. The Defendant was unable to describe K.M.’s falls, especially the second one, or how she obtained her injuries;

x. The Defendant attempted to explain away the evidence/statements that he had kicked K.M. by claiming to have held K.M. down with his foot;

xi. The Defendant lied to police about the responsiveness of K.M. and her refusal to permit them entry or to come and see them; and

xii. K.M. did not return to work for months; when she returned, she was physically and mentally different – slower, forgetful, and wearing dark sunglasses.

[76] I am satisfied that the only explanation that accounts for all of the evidence in this case is that the Defendant unlawfully assaulted K.M. by kicking her in the head. I have considered and rejected the theory that the injuries suffered by K.M. could all have come from two falls onto hardwood floors and the shattering of a glass candle. It defies credulity that a fall face first would cause two bruised eyes and only a slight bruise to the bridge of the nose at the top, but the nose itself would be otherwise uninjured. The theory of two distinct intoxicated tumbles could account for some of the injuries in the photographs, but not all of them. The candle glass shattering may account for the scrape marks on the upper chest area but not all of the other marks on K.M.’s neck, chin, head, face, shoulder, and hip.

[77] I am not left in any doubt by the Defendant’s evidence about what had occurred. I find that K.M. and the Defendant physically fought. I find that the Defendant struck K.M. multiple times as is evidenced by the various marks, cut to her chin, and bruises to various parts of her neck, face, eyes, and temple. I accept that part of the video statement of L that described a single kick to her mom’s face by her dad.

[78] Although I found L to be generally unsatisfactory as a witness, I have ascribed her apparent memory issues to a desire to reunite her family. This is understandable for a child of her age. I did not find that her untruthfulness before the court was indicative of a greater character flaw that should cause me to doubt the veracity of everything she told the police. Rather, I find that over the passage of time, L has decided to try to help her father from his current predicament. There is nothing about the police statement she gave mere hours after the police discovered K.M.’s injuries that causes me to suspect that it is less than truthful or accurate. That statement is corroborated to a small extent by the testimony and video statement of T., however, because of his age, his evidence and statement are largely unreliable on their own. The photographs and the police evidence of the apparent head injury of K.M. assist to support the video statement of L and the injury of a kick to her face or head.

[79] In the end, I have no medical evidence of the injuries suffered by K.M. The testimony of Ms. Massey and the police observations provide some circumstantial evidence of a head injury. I find as a fact that the injuries suffered by K.M. were not trifling nor transitory and took months to heal.

CONCLUSION

[80] On the basis of my acceptance of L’s video evidence, the testimony of Ms. Massey, the photographs, the apparent distress/unconsciousness of K.M. when police came to see her, the Defendant’s version of events, and the totality of the evidence, I have no doubt that the Defendant assaulted K.M. and caused her bodily harm by kicking her in the face or head.

[81] I have a reasonable doubt that the Defendant threatened or assaulted T.

[82] A.W. is found guilty on count one and not guilty on both remaining counts.

Released: 28 June 2021

Justice G. Paul Renwick

[^1]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[^2]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56.

[^3]: R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (C.A.) at para. 9, citing: R. v. W.(R.)., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at p. 134.

[^4]: This corroborated what L had told police in her statement.

[^5]: This seemed to contradict what he had told the police about the children waking him up.

[^6]: The prosecutor used the phrase “the jump incident” to discuss the video of K.M. taken by the Defendant on his cell phone when she was threatening to jump out of the second floor window.