WARNING
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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) 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.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
ONTARIO COURT OF JUSTICE
DATE: 2025-01-30
BETWEEN:
His Majesty the King
— and —
I.D.
Judgment at Trial
- T. Surmanski — Counsel for the Crown
- C. Laperriere — Counsel for the Defendant
Felix J.:
Table of Contents: R. v. I.D.
I. Introduction
A. Introduction
II. Assault – May 5th, 2023
A. The Evidence – Allegations from May 5th, 2023
III. Assault – July 22, 2023
A. Living Room Assault Allegation
B. Bedroom Assault Allegation
IV. The Burden of Proof and General Criminal Law Framework
- The Presumption of Innocence
- Reasonable Doubt
- Credibility and Reliability Assessments
- The Guidance of W.(D.)
- W.(D.) Applies to All of the Evidence
- Other Relevant Legal Guidance on Credibility
V. Analysis
A. The Counts and “Similar Fact”
B. Prior Consistent Statements
C. Credibility and Reliability Overall – Complainant
D. Credibility and Reliability Overall – Defendant
E. Photographs of Injury
F. Animus, Bias, and Motive to Fabricate
G. July 23rd
- “Failure” to Leave
- The Text Messages
H. May 5th - The Defendant’s Alcohol Consumption
- Facebook Messages
- The Complainant’s Reluctance and Delayed Disclosure
- Prejudicial Information
- Photographs of Injury
I. Conclusion
I. Introduction
A. Introduction
[1] The defendant is charged with two counts of assault on his intimate partner on July 23rd, 2023, and two counts of assault by choking on his intimate partner on May 5th, 2023.
[2] As is the case with many intimate partner trials the central issue is the credibility of the complainant and defendant as analyzed through the framework of the criminal burden of proof. The Crown submits that the complainant was credible. The Defence position is that the complainant fabricated the allegations before the court and there is reasonable doubt.
[3] I found the complainant to be a credible and reliable witness at trial.
[4] I found the defendant to be a somewhat credible and reliable witness at trial.
[5] In a criminal trial, any reasonable doubt must be resolved in favour of the defendant. I am unable to conclusively arrive at factual findings as it concerns the allegations. This state of mind necessarily means that the prosecution has not proven these counts beyond a reasonable doubt.
[6] The defendant is found not guilty of all counts. The purpose of this written judgment is to explain the reasoning behind these findings.
II. Assault – May 5th, 2023
A. The Evidence – Allegations from May 5th, 2023
[7] The Information alleges in two separate counts that on May 5th the defendant assaulted the complainant by choking, suffocating, or strangling the complainant.
[8] The complainant testified that she and the defendant were in their basement apartment. There was a discussion about the defendant’s drinking problem. This was often a topic of discussion as the complainant held the view that the defendant had a “problem”. The defendant did not share that perception.
[9] The discussion escalated into a heated argument. The defendant began to call her names and use profanity. She began to cry. She explained that at one point she went to put something down and her back was to the defendant. The defendant came up behind her, placed both hands around her neck, and applied pressure. The pressure was “pretty hard”. She explained that this action affected her vision a “little bit” and she could not breathe. The duration of this assault was estimated to be approximately 30 seconds long.
[10] The complainant testified that she struggled against the defendant and was trying to call for help. In so doing, she was able to turn her body around and face the defendant. During this short period of time, she described the defendant as angry that she was physically fighting back and trying to extricate herself from his grasp. There was screaming and name-calling (e.g., calling her a loser). The complainant believes she said: “What are you doing!”.
[11] The complainant testified that after this brief respite, the defendant once again grabbed her by the throat. This time, he did so while facing her from the front. The pressure applied during this second assault was described as “quite hard – maybe even a little bit harder than the first time”. The complainant testified that the duration of this assault was shorter than the first assault. She estimated that the application of force was perhaps 20 to 40 seconds long. As a result of this second application of force, the complainant could not breathe very well, her vision was blurred, and the room was spinning.
[12] In the aftermath the complainant collapsed in the corner of the kitchen trying to catch her breath. She felt dizzy. She was crying. She then described the defendant being aggressive as she cowered in the corner.
[13] The incident ended with the defendant taking his jacket to go outside. While he was leaving, the defendant broke the drywall near the entrance of the door as he left either by use of his hand or something in the pocket of the jacket.
[14] The complainant testified that other than the intervening period between the two assaults where she fought to extricate herself from the defendant’s grasp, she did not physically engage the defendant in any way. It was implicit in her testimony that she did not consent to any assaultive physical contact with the defendant.
[15] The complainant took photographs of injuries received as a result of this assault. She also took a photograph of the damage to the drywall.
[16] The defendant testified that he did not have any particular recollection of the events of May 5th or 6th. He explained that given their relationship, the lack of any particular recollection probably meant they had a good day. Nothing stood out from that day.
[17] The defendant adduced Facebook messages from May 5th and 6th documenting some electronic contact that day. He testified that when the relationship was good, they would often communicate loving messages such as those displayed in the Facebook messages.
[18] During cross-examination the defendant conceded that it was probable that he was physically present with the complainant in the basement apartment on the day in question. But he was clear that no assault occurred. He did not place his hands on the complainant’s neck, shove her, or engage in any inappropriate physical contact that day. Nor had he ever engaged in such activity.
III. Assault – July 22, 2023
A. Living Room Assault Allegation
[19] I adopt the criminal law framework for analysis set out above in this judgment as it concerns the allegations of July 22, 2023.
[20] As it concerns the July allegations the complainant testified to a disagreement with the defendant commencing in the morning. The defendant went to work. While he was at work, she sent him several electronic communications by text message. She perceived he was ignoring her messages. This disagreement ultimately ended up with the defendant telling the complainant to leave his property.
[21] The defendant came home from work in the afternoon. He then went to a local bar. The complainant understood that the defendant had asked her to leave. She engaged in a dispute with the defendant over who would pay for the Uber. She began packing her things. In the end, the complainant did not leave. In the early hours of the morning, she contacted a friend but received no answer. She had nowhere to go. Given the number of items in the residence, her items upstairs, and a pet cat, the complainant resolved to leave in the morning and ceased efforts to leave in the early hours of the morning.
[22] When the defendant returned from the bar, the complainant described him as intoxicated. They continued the argument from earlier in the day.
[23] The complainant testified that the argument became physical. The defendant was trailing after her within the apartment calling her names and saying anything he could to demean her. At one point near the sofa, he “puffed” himself over top of her in a threatening manner while yelling and screaming. The complainant testified that she was crying and telling him to stop.
[24] As she continued to move her things the defendant shoved her using both of his hands against her shoulders. She fell backwards into a table and sofa. She struck her legs on the coffee table.
B. Bedroom Assault Allegation
[25] Approximately five to ten minutes after the assault in the living room the complainant described an assault that occurred after the defendant entered the bedroom. Again, he was looming over her in a threatening manner. The complainant continued packing and the argument continued. The complainant testified that following her screams and profanities the defendant pushed her with both hands. She fell backward. There was no injury. The complainant described this assault as similar in nature to the living room assault.
[26] The defendant at some point went outside to smoke a cigarette. The complainant called a friend seeking assistance to leave but with no success. The defendant called the police to have her removed from the premises.
[27] The defendant testified that he and the complainant had an argument that morning after it was revealed that he had been smoking while driving to work. As a result of that argument the complainant sent him text messages at work. The text messages were persistent. He heard the “dinging” all day and could not deal with it at work.
[28] He left work approximately 3 PM. When he got home, he did what he normally did when they had a “tiff” – went to a bar. He went there to do the scheduling for work and have a drink. The defendant testified that he told the complainant to leave. He also recalled calling the complainant from the bar, and had a discussion with her. He remained at the bar because he did not want to be in the apartment while the complainant was packing to leave. Since she was still in the house he remained at the bar until 10:30 PM or later. He consumed approximately three beers during this time. Having regard to his consumption of alcohol that afternoon and evening he was not intoxicated.
[29] The defendant testified that upon leaving the bar around 11:15 PM and arriving home, he found the complainant was still in the premises. He again told her in person that she was required to leave. He called an Uber and went to another bar and waited her out until last call. He had another three beers at this location. He Ubered home by 1 AM feeling “tipsy but not hammered”.
[30] The defendant testified that he arrived home around 1:45 AM and told the complainant that if she did not leave, he would call the police. The complainant refused to leave. He called the police. While on the phone with the 911 dispatcher he was asked to pass the phone to the complainant. When he did, the complainant told the operator “He hit me”. The defendant then went back on the phone and told the operator that he would be waiting outside for the police to arrive. The defendant denied that any physical contact occurred during his interaction with the complainant.
IV. The Burden of Proof and General Criminal Law Framework
[31] Criminal trials are informed by a number of well-known legal principles. I will briefly set out the framework for the proper approach to the analysis of the evidence.
1. The Presumption of Innocence
[32] The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, R. v. Starr.
2. Reasonable Doubt
[33] The reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, R. v. Morin.
[34] Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence”: R. v. Villaroman.
[35] It is important to note that the Defence bears no burden to prove foundational facts in support of an inference of innocence: Villaroman, R. v. Khela. Nor is the defendant required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman. A defendant is free to point to anything in support of reasonable doubt including the presence or absence of evidence.
3. Credibility and Reliability Assessments
[36] In many criminal trials the credibility and reliability of the central witnesses at trial must be resolved. I rely on the description of “credibility” and “reliability” explained by Watt J.A. in R. v. C.(H.), and the guidance of the Supreme Court of Canada in R. v. G.F. and R. v. Kruk.
4. The Guidance of W.(D.)
[37] In assessing the criminal standard of proof beyond a reasonable doubt, trial judges have a responsibility to consider the entire record at trial and to resolve material issues relevant to the credibility analysis. The W.(D.) decision sets out the three-step process for analyzing credibility in the face of conflicting evidence. The guidance is as follows:
If you believe the evidence of the accused, obviously you must acquit;
Even if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit; and,
Even if you are not left in doubt by the evidence of the accused, you must ask whether, on the basis of the accepted evidence, has the prosecution established guilt beyond a reasonable doubt.
[38] I am in favour of an additional instruction. I acknowledge that a criminal trial is not simply a competition between the version of events provided by the complainant, and the version of events provided by the defendant. But, if after considering the totality of the evidence, I am unable to decide whom to believe, this state of mind translates into a reasonable doubt and an acquittal must be the result: R. v. S. (J.H.); R. v. Austin.
5. W.(D.) Applies to All of the Evidence
[39] The W.(D). test applies to more than the defendant’s evidence. The test requires consideration of any defence evidence and any admissible exculpatory evidence no matter the source: R. v. Savage; R. v. N.P.; R. v. Smith; R. v. M.P..
6. Other Relevant Legal Guidance on Credibility
[40] Where the guilt or innocence of the defendant is driven by an evaluation of credibility as between prosecution witnesses and defence witnesses, it is important to remember that “credibility contests” are not permitted in criminal law. A trial judge is not permitted to determine guilt or innocence by simply picking a preferred version of events from amongst competing versions. This approach offends the criminal burden proof: R. v. Vuradin; S.(J.H.), at para. 9; W.(D.), at p. 409. A trial judge cannot permit the analysis of credibility to degenerate into a mere choice between competing prosecution and defence witnesses (or competing evidence for that matter): R. v. Hull.
[41] In a criminal trial, witnesses testify as to their subjective observations and experiences. A trier of fact is entitled to accept some, all, or none of a witness’ testimony: Kruk, at paras. 82, 145-146; R. v. C.P.; R. v. Le; S.(J.H.), at para. 10; R. v. W.H.; R. v. Francois.
[42] The trier of fact is entitled to determine the weight assigned to different parts of the evidence of a witness that the trier of fact accepts: W.H., at para. 32; R. v. J.H..
[43] The trier of fact is entitled to decide how much weight to assign to a testimonial inconsistency and any explanation provided by the witness for the inconsistency: W.H., at para. 32;
[44] A trial judge must endeavour to fairly and evenly evaluate the defendant’s evidence and the complainant’s evidence: R. v. Bartholomew; R. v. Radcliffe; R. v. Gravesande. It is also an error to move directly from disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore, at p. 527; R. v. H.(S.), at paras. 4-6.
[45] Finally, it is critical to note that acceptance of evidence presented by prosecution witnesses does not mandate automatic conviction. A trial judge could conceivably accept prosecution witness testimony, but still harbour a reasonable doubt.
V. Analysis
A. The Counts and “Similar Fact”
[46] The Crown has proceeded with four counts covering four sets of allegations on two separate days. The Crown did not bring a “similar fact application across the counts”. As such, the guilt or innocence of the defendant must be assessed only based on the admissible evidence on each count independently. The prosecution may not rely upon evidence across the counts to prove the case.
[47] Credibility assessments are not bound by this restriction. As concerns the credibility and reliability of the witnesses, I may consider the totality of the evidence given by a witness across all counts: R. v. P.E.C.; R. v. D.M.; R. v. D.R.; R. v. M.R.S..
B. Prior Consistent Statements
[48] The Defence position is that the complainant fabricated the allegations. The prosecution has not sought the substantive admission of any prior consistent statement made by the complainant (e.g., “He hit me” to the 911 dispatcher). As such, this evidence is admissible as narrative. I may not use the evidence to rebut the allegation of fabrication or for any other substantive purpose.
C. Credibility and Reliability Overall – Complainant
[49] The complainant’s testimony was clear, specific, and illustrative of the contours of the relationship with the defendant. As I will elaborate below, I tended to believe her evidence. Some of her evidence as to the defendant’s smoking and drinking habit was corroborated by external sources (e.g., text messages). There was no significant credibility issue other than a caution for the potential for bias or animus. I certainly preferred the evidence of the complainant – especially as it concerned the May 5th allegations. Were this a civil trial I would find in her favour. But this is a criminal trial where the burden of proof is beyond a reasonable doubt.
D. Credibility and Reliability Overall – Defendant
[50] While I found the complainant credible and reliable, the defendant was also somewhat credible and reliable.
[51] He testified in a clear and straightforward manner. He acknowledged his boorish behaviour and poor performance as an adult partner of the complainant. He did not engage the support she provided with the aim of improving himself and their relationship.
[52] The defendant also acknowledged stress at the time, heavy consumption of alcohol, and challenges in the personal relationship with the complainant. He acknowledged the support provided by the complainant as it concerned his child and the household. The defendant was also clear that he was not a supportive partner during the timeframe of these allegations.
[53] He was less reliable in that he provided a less detailed recount of the events on July 23rd. But overall, I credited his testimony with some weight.
E. Photographs of Injury
[54] I tend to accept the photographs of injury and the complainant’s testimony as to the cause. But I also acknowledge a mild concern about the fact that the complainant took the photographs — not the police. It is also notable that the prosecution did not adduce objective electronic evidence documenting the date and time of the creation of the photos. In today’s modern age any cellphone camera documents such data, and it is easily accessible. This impacted the weight I assigned to the notion that they were taken by the complainant proximate in time to an assault.
F. Animus, Bias, and Motive to Fabricate
[55] Defence counsel submits that the complainant has fabricated the allegations. The Crown Attorney submits that the complainant is a credible and reliable witness. As such, the prosecution position implies that there is no evidence of a motive to fabricate, bias, or animus on the part of the complainant.
[56] Implicit in the Defence position that the complainant has fabricated the allegations is the suggestion that the complainant is biased, and possesses a motive to fabricate the allegations.
[57] The defendant has no onus to demonstrate that the complainant has a motive to fabricate: R. v. Batte; Trial judges may consider the presence or the absence of a motive to fabricate: R. v. Gerrard; R. v. Ignacio. But it is an error to equate the absence of evidence demonstrating a motive to fabricate with a proven lack of a motive to fabricate: Gerrard; Bartholomew; Batte.
[58] I do not believe that the complainant fabricated the allegations. But the prosecution has not disproved a motive to fabricate. I subscribe to mild caution in this case for several reasons.
[59] First, there was clear animus between the parties.
[60] Second, the complainant and the defendant engaged in some sort of disposition of property dispute as evidenced by the complainant’s attendance at a police station to follow up. While I do not have the details of this dispute, I do not need them. The dispute existed.
[61] Third, the complainant clearly perceived that the defendant treated her improperly, separate and apart from the allegations of assault.
[62] Fourth, at times during questioning the complainant would drift from a directly responsive answer, to provide prejudicial information (e.g., the cross-examination about the defendant going to a hotel provoked an answer about the defendant potentially engaging prostitutes).
[63] Finally, the involvement of the police in July 2023 was precipitated by the defendant kicking the complainant out of his residence.
G. July 23rd
1. “Failure” to Leave
[64] The issue of the complainant “failing to leave” when directed by the defendant has less to do with landlord tenant issues, property rights, or a justification for assault. It is more about it being a central feature of the conflict and the defendant’s testimony.
[65] I find that the defendant told the complainant to leave his property several times. The complainant acknowledged this but explained that at 2:00 AM she had contacted a friend but could not reach anyone to help her. The complainant testified that she was not going to leave with all of her stuff in the middle of the night with nowhere to go. She resolved to leave first thing in the morning. She “barricaded” herself in the bedroom until morning. I accept her testimony and do not view the “failure to leave” as a credibility issue against her.
2. The Text Messages
[66] The defendant adduced eighteen pages of text messages with the complainant. The text messages corroborate the defendant’s position that on July 23rd he had repeatedly asked the complainant to leave his residence. The text messages also support the defendant’s position that he remained at a local bar and stayed away from the residence because he anticipated problems with the complainant.
[67] But the text messages also corroborate the complainant’s testimony as it concerns the friction between them around smoking, drinking, cleaning, therapy, child care, promises, and following through on actions. These text messages powerfully corroborate the complainant’s historical record on the problems in the relationship. They also document her perception that she left him, returned, and was met with unfulfilled promises to change.
H. May 5th
1. The Defendant’s Alcohol Consumption
[68] A feature of the May dispute concerned the subject matter of the defendant’s consumption of alcohol. She explained that on May 5th the argument began because the defendant had drunk “quite a lot”. She testified that it was not unusual for the defendant to drink ten or even fifteen beers. The complainant consumed alcohol rarely. From the perspective of the complainant this was a common source of argument.
[69] The defendant was forthright during this testimony that he was not sober in either May or July 2023 and that he would frequently consume volumes of alcohol.
2. Facebook Messages
[70] The Facebook messages are relevant to the credibility assessment of the complainant and also as foundation for reasonable doubt. The Defence position is that the Facebook messages demonstrate that there was no discord on May 5th and May 6th and that the relationship was positive as evidenced by the content of the messages.
[71] The complainant testified that these messages did not evidence that the relationship was positive. She explained that the relationship was cyclical. There would be conflict, then they would make-up. She explained that after every argument it was up to her to fix things and smooth things over. If she pressed the source of the dispute or suggested that they needed to seek help “all hell would break loose”. She had to be the sweetest most caring version of herself to avoid continued volatility.
[72] I found the complainant’s evidence to be quite powerful on this issue. It engaged a concept well understood by criminal court participants as it concerns intimate partner violence cases. I do not require expert opinion evidence to understand a phenomenon demonstrated in many cases over many years. In umpteenth trials I have heard a variety of witnesses describe a continuous cycle of intimate partner conflict, a “make-up” period, a calm period, and then a return to conflict.
3. The Complainant’s Reluctance and Delayed Disclosure
[73] The complainant was cross-examined on the following issues:
Why she refused to provide a “formal” statement to the police;
Why she delayed reporting the assaults; and
Why she stayed in the relationship and the defendant’s residence after the May 5th incident.
[74] The contention that the complainant did not provide a “formal” statement is not a credibility issue. The complainant acknowledged that she was reluctant to address the police involvement because of the potential impact on the defendant. She did not want the defendant to get in trouble. She was aware of the circumstances of his custody and access to his son and did not want to do something to jeopardize access to his son. In any event, it is clear that the complainant perceived her discussion with the police captured on body-worn-camera footage as being a “statement”. She did not recognize or understand the difference between that statement and a “formal” statement until it was made clear to her during cross-examination.
[75] It is also clear that the complainant was focused on trying to get the defendant to access help and resources for alcohol addiction. The complainant testified during direct examination that when she spoke to the 911 operator on July 23rd, she told the operator that she just wanted the defendant to get help for his alcoholism. She testified at trial that she understood that alcoholism was an illness, and she simply wanted the defendant to address the issue. She testified that the operator told her that the police would attend and would have greater access to resources. No one played the 911 call during the trial. The complainant was not challenged on this issue during cross-examination. The text messages from July corroborate her viva voce testimonial perception that the defendant needed help. During those messages she addressed counselling and sent him links to mental health addiction and treatment resources.
[76] The complainant was cross-examined about her delayed disclosure of the May 5th incident. In R. v. D.D., the Supreme Court of Canada stipulated that as it concerned the issue of child abuse and the timing of disclosure, no presumptive adverse inference is available based on the timing of the disclosure, standing alone. The timing of the disclosure is simply one factor in the context of the case as a whole.
[77] There is some basis in law to take the same approach as it concerns intimate partner violence cases: (R. v. J.P.S., aff’d 2014 SCC 47; R. v. Safdar). In any event, I am aware that I should refrain from engaging in stereotypical reasoning as it concerns the actions of alleged complainants. Some complainants report an offence immediately. Some complainants delay reporting. Some complainants never report an offence to the police.
[78] The complainant in this case explained that there was a cyclical nature to the relationship as outlined above. She had left before, and the defendant would implore her to return and undertake to improve his behaviour. The defendant would promise to change his ways and that he needed her in his life. The complainant testified that she loved the defendant.
[79] Finally, I would observe that there is no “rule book” governing how complainants are to act in the aftermath of intimate partner violence. Some partners immediately report incidents to the police. Others never report. The delay in reporting, standing alone, is not a credibility issue in this case. The complainant provided a logical and rational explanation for remaining with the defendant and not immediately reporting the assaults to the police.
4. Prejudicial Information
[80] It is often difficult to conduct a trial without some inadmissible or prejudicial information seeping into the record. This occurs despite the best intention of the parties. Trial judges must address such issues on a daily basis. Trial judges are expected to disabuse their minds of such evidence.
[81] The complainant provided some potentially prejudicial information about the defendant. Intimate partners often have intimate information about each other’s habits and practices. I have disabused my mind of any uncharged conduct given the prosecution did not intentionally adduce this evidence and there was no application to adduce discreditable conduct.
5. Photographs of Injury
[82] The complainant testified that she took pictures of her injuries around her neck from May 5 and injuries to her legs from July 23, 2023.
[83] The Crown Attorney asked the defendant if he had any explanation for the injuries present in the photographs. The purpose of this line of questioning during cross-examination was to address the possibility of innocent cause (e.g., a circumstance where the defendant was aware that an injury had otherwise been caused or caused innocently through consensual activity.) Notwithstanding the Crown Attorney’s stated objective in this regard, I am aware that it would be an error to require the defendant to provide an explanation for why the complainant had injuries. The defendant has no burden to provide an innocent explanation for prosecution evidence. I have not reversed the burden of proof.
I. Conclusion
[84] I tend to accept and believe the evidence of the complainant overall. I found her to be a credible and reliable witness with a detailed recall of the circumstances surrounding the assault allegations.
[85] The defendant provided a detailed account of his interaction with the complainant as it concerns the July 2023 assault allegations. He was forthright in testifying that he had no specific recall of any significant events on May 5th. In sum, the defendant denies assaulting the complainant at any time.
[86] At stage one of W.(D.) I would not credit the defendant’s testimony overall. But at stage two of W.(D.) I must endorse some reasonable doubt.
[87] Based on my assessment of the totality of the record at trial, I am unable to conclusively determine what happened during each assault. The notion that I found the complainant credible, and the defendant is most probably guilty, is not permitted in criminal law. Probable guilt is insufficient. Where I am simply unsure or unable to conclusively determine what happened, this state of mind mandates an acquittal: S.(J.H.).
[88] The defendant is found not guilty of all counts.
Released: January 30th, 2025
Signed: “Justice M.S.V. Felix”
[1] Exhibit 6