WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:

486.4 (2.1) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) Mandatory order on application — In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: November 4, 2025

Court File No.: Central West Region (Niagara) 24 21103363

Between:

His Majesty the King

— and —

P.(C.)

Before: Justice J. De Filippis

Heard on: October 8 & 9, 2025

Reasons for Judgment released on: November 4, 2025

Counsel:

• Ms. Bajwa — counsel for the Crown
• Mr. Buchanan — counsel for the defendant

Introduction

[1] The defendant was charged with assaulting her granddaughter and breach of probation for failing to keep the peace and being of good behaviour. The result in the second charge is driven by that in the first. At the time of the events in question the child was four years old. She was five years old at the time of trial. I will refer to her as the "child" or the "child in question". At the time of these events the defendant was on probation.

Facts

[2] On July 17, 2024, around lunchtime, the child was seen by a neighbour, M.P., wandering the streets of a townhouse complex. M.P. had seen the child before but had not met her. M.P. noticed what looked like mud on her clothes and a terrible smell from her body. She saw a bruise on the child's eye. She also saw a cut on her lip – "going from the outside to inside of lip, it looked like she had run into something like a coffee table." The child went into her house and quickly came outside again with two dogs running free. After speaking to another neighbour, D.P., M.P. called the police. M.P. had heard community gossip about a poor relationship between the defendant and D.P.

[3] PC Fray-Warnica arrived at 2 PM. She approached M.P. who had the child with her. The officer noted that the child had no shoes, dirty hair, and smelled of dog feces. She also noticed "small reddish dots all over her body and a small abrasion on her lip". When prompted by the Crown, the officer recalled seeing a bruise over the child's eye. The officer went to unit 31 and knocked on the door. The defendant answered and explained she had been napping and the child had gone out on her own. The defendant added that alarms had been put on the door to prevent this as it was a regular occurrence. In talking to the defendant, the officer saw a younger child in the home. This one also had a rash, with dirty hair and the same foul smell. The officer called Family and Children's Services (FACS).

[4] Nadia Hynes arrived from FACS. She took both children to the FACS office. While there, she observed, with respect to the child in question, a prominent hand mark, "like grab mark", on her left arm and red spots all over her head. Her clothes were dirty. Both children were apprehended and taken to foster homes.

[5] Amanda Marino is the regular FACS worker who had been previously assigned to monitor the defendant and the children. On July 16, 2024, she was at the defendant's home. She saw both children up close and did not see any marks or injuries on them. Ms. Marino had spoken privately with the child in question in the preceding months. She did not notice injuries. The child reported being spanked once but did not disclose other physical punishments or being hurt. Ms. Marino confirmed that alarms had been placed on the rear door of the defendant's home as the child had a history of leaving the home without permission.

[6] On August 1, 2025, the child was interviewed by police. This interview was recorded on video.

Evidence by the Child

[7] The prior statement given to police by the child was played in Court. The child testified that what she told the police was true. The interview is 13 minutes in length.

[8] The child reported the following: The defendant "hurts" her and her sister and the dogs. The defendant often says the child is "bad". The child explains she is not bad "on purpose" but "by accident". The defendant threw the child on the floor. The defendant threw the child against a wall and caused her lip to bleed. This happened after the child broke something. The defendant hurt the child's lip by pinching it. The child does not know what happened with respect to the blood on her lip. The defendant hurt the child on the back of her head. This has happened before. The defendant hurt the child before by throwing a big toy at her. It is not clear when the events described occurred.

[9] Cross-examination included the following exchange:

Q: Is it possible there are some things you weren't telling the truth?

A: I was

Q: [repeated]

A: I don't know

Q: Is it fair to say you don't know if you were telling the truth

A: Yes

[10] The child agreed that on the last day she lived with the defendant, she left the home without her grandma's knowledge. She left because she does not like her grandma. She does not like her because her grandma has many rules and punishes the child when the rules are not followed. She said she was hit by the defendant when she returned to the house. She added that, "I sneak out three times and police came the last time and after this I was hit, and grandma went to jail". Later, the child said, the cut lip happened on a different day than when the police came.

[11] The child agreed that she would be punished by the defendant if rules were broken, and this included spanking. The child testified that each time she left her grandma's house, she went to the home of D.P. She liked going there because D.P. let her have things her grandma would not. The child agreed that D.P. told her to tell the police how her grandma had hurt her and further agreed that these events did not happen. In re-examination, the child repeated that what she told the police in the video recorded statement was true.

Evidence by the Defendant

[12] The Defendant testified that she obtained custody of the child and the younger sibling in 2022 because their parents could not care for them due to drug addiction. She is the maternal grandmother of the children. The child was three years old at the time and the younger sibling was six weeks old. Both children were kept in hospital for a time after birth as their mother had abused drugs during pregnancy. FACS had been involved with the family before the defendant obtained custody and this continued afterward.

[13] The defendant testified that the child had left her parents' home several times without their knowledge and this continued when she came to live with her. The first time was on February 3, 2024. It is around this time that the defendant became involved in a confrontation with D.P. The defendant believed this woman was influencing the child and wanted it to stop. The defendant believed the child loved D.P. and saw her as her best friend. Just before the child left the home without permission on February 4, the defendant had told the child she was not to see D.P. The defendant was later found guilty of assaulting D.P. The defendant has two convictions for impaired driving.

[14] The defendant testified that July 16, 2024, was extremely hot and this caused both children to experience a heat rash that others saw the next day. The defendant denied there was any physical altercation with the child on July 17 and apart from spanking her once, has never hit or injured her in any way, including as described by the child. The defendant noted that the child did not like her rules and would leave home. On one occasion the child tried to climb out of her second-floor window. The defendant told the child this was dangerous and spanked her on the bottom three or four times.

[15] On July 17, 2024, the defendant awoke around 5 AM. She later made breakfast for the children. At 11 AM she went for a nap. She was awakened by the police knocking on her door, along with a FACS worker and the child. The defendant did not see any injuries on the child, nor did anyone point to such injuries. The children were taken away from her this day and remain in foster care.

[16] The defendant agreed she was frustrated by the child's defiant attitude. She also agreed she had consumed wine overnight on July 16–17. With the assistance of a FACS worker, the defendant had placed marble coffee tables to block the front door so the child could not leave on her own. These were heavy and she cannot say how the child managed to get outside while the defendant was napping.

Analysis

[17] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W(D), [1991] 1 S.C.R. 742). Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person's sincerity and accuracy.

[18] This prosecution fails without a consideration of the defendant's testimony.

[19] The child told police she had been hurt by the defendant on several occasions before July 17. I am confident that she did not understand some of the questions put to her in cross-examination about these incidents and I am not troubled by her answers to those questions, which would otherwise be fatal to credibility and reliability. Nevertheless, leaving aside for the moment the cut lip, the child's account of when and how she was hurt is not at all clear. Moreover, Ms. Marino, the FACS worker assigned to this family visited home – often unannounced – in previous months and spent time alone with the child. She never noticed injuries and the child never disclosed any abuse.

[20] The injuries seen by several people on July 17 must have been sustained that day. The bruise and cut lip were not present the day before when Ms. Marino visited. As a FACS worker she would have noticed such marks. Ms. Hynes noticed a "grab mark" on the child's arm on July 17. This is consistent with the child's account of being thrown. However, the many inconsistencies in the child's narrative about how her lip was cut is a shaky foundation on which to build a case. These inconsistencies arise in the statement she gave to police and in cross-examination. With respect to the latter, I cannot say that the child did not understand the questions that prompted these answers.

[21] The defendant was likely overwhelmed by having to care for her young grandchildren at her stage in life. It may be that she has issues with alcohol use. On July 17, the child was outside without supervision, in bare feet, with dirty clothes and hair, and smelling of dog feces. The children are now in foster care. My role is to determine if the defendant is guilty of the charges. On the record before me I cannot come to that conclusion beyond a reasonable doubt.

[22] The charges are dismissed.

Released: November 4, 2025

Signed: Justice J. De Filippis