ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
DUANE NEFF
Defendant
Kelly Simpson, for the Crown
William Markle, for the Defendant
HEARD: October 22, 23 and 24, 2012
MOLLOY j.:
REASONS FOR DECISION
A. INTRODUCTION
1Duane Neff is charged with multiple offences arising from an incident between him and his common law spouse Christine McCaw at her home in Toronto on the night of March 12/13, 2009. Ms McCaw alleges that during the course of a heated argument, Mr. Neff choked her until she was unconscious, pointed a rifle at her head, and threatened to kill her. She further alleges that the next day, Mr. Neff told her that the rifle was loaded at the time, but that after leaving her home that night he had broken it apart and thrown the bits and pieces into the rivers and forests between Toronto and his home near Pembroke.
2Ms McCaw reported this March 2009 incident to the Toronto police in October 2010. As a result, Mr. Neff was charged with 10 offences:
Count 1: assault
Count 2: assault causing bodily harm
Count 3: carrying a concealed weapon (he allegedly brought the rifle to her home in a guitar case)
Count 4: threatening to use the rifle while committing assault
Count 5: pointing a firearm
Count 6: threatening death
Count 7: threatening death while using a firearm
Count 8: possessing a firearm knowing he was without a license
Count 9: possessing a firearm without a license
Count 10: destroying a firearm without reporting its destruction to the authorities
3The trial proceeded before me without a jury. The Crown witnesses were Ms McCaw and two of her friends who, although not eye witnesses, were called to corroborate certain portions of her evidence. The defence presented no evidence.
4At the conclusion of the evidence, the Crown conceded that it would not be appropriate to convict on Count 10 (destruction of a firearm). I agree. That count is dismissed.
5There is considerable overlap in the remaining counts. In essence, Mr. Neff is accused of: (1) choking Ms McCaw; (2) pointing a rifle at her; and (3) threatening to kill her with it. Since the burden is on the Crown to prove these charges beyond a reasonable doubt, and since Ms McCaw was the only witness to the event, everything hinges on her credibility. For the reasons that follow, I have difficulties with Ms McCaw’s credibility such that I am unable to be satisfied beyond a reasonable doubt based solely on her testimony. Although there is some corroborative evidence, it is still not sufficient to get me over the significant hurdle of proof beyond a reasonable doubt. Therefore, I am dismissing all charges against Mr. Neff.
B. UNDERLYING PRINCIPLES
6Before proceeding to an analysis of the evidence in this case, I will review a number of guiding principles that I have applied in reaching my decision.
Delayed Reporting is Not Fatal to Credibility
7It is now well-settled that delay in reporting an assault to the police does not give rise to any inference that the assault did not occur. On the contrary, particularly in situations of domestic abuse, it is common for a victim of assault to say nothing, even to her closest friends and family. In R. v. D.D.,1 the Supreme Court ruled that this principle is now so well-established that expert evidence is not admissible to explain it and that it should be the matter of a simple instruction to the jury. Major J. (writing for the majority) held (at para. 65):
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
8Although the offence involved in D.D. was a sexual assault, this principle is equally applicable to the assault charges at issue in the case before me. The reasons given by Ms McCaw for not initially reporting the assault to the police are plausible and common in domestic assaults: she felt embarrassed and humiliated; her partner was contrite; she still loved him; and she wanted to keep her family together.
9I recognize that Ms McCaw’s failure to report the 2009 assault until the fall of 2010 is not necessarily an indication of fabrication. It also does not give rise to any inference or presumption that her evidence lacks credibility. That said, it is also not completely irrelevant. It can be considered as a factor in assessing her credibility, provided there are other factors also undermining credibility.
There is No Requirement for Corroboration
10Our law does not require corroboration of the evidence of a complainant in order to found a conviction.2 The sworn testimony of a complainant, standing alone, is sufficient to establish a charge beyond a reasonable doubt, provided that testimony is found to be credible and reliable. Because the reasonable doubt standard is an onerous one, triers of fact will frequently look for corroboration where guilt or innocence hinges on the testimony of a single witness. Such evidence is often helpful, but it is not a requirement.
Corroboration of Minor Details Can Bolster Credibility on Main Issue
11While corroboration is not mandatory, in cases where there are problems with the credibility of a principal witness, it is often useful to consider whether there is any independent evidence to corroborate the testimony of that witness. It is not necessary that such corroborative evidence go to the heart of the matter at issue, in the sense that it actually implicates the accused in the offence charged. Rather, any evidence that confirms a material or relevant aspect of the witness’s testimony may be used to support her overall credibility.3
12In this case, as I will be developing more fully below, I have concerns about the credibility of the sole witness, Ms McCaw. There is no witness as to the actual event that occurred between her and Mr. Neff. That is not the end of the matter, however. I have considered whether there is any additional evidence about a relevant factor or material aspect of her evidence, which could serve to restore my faith in the truthfulness of her evidence and my ability to rely upon it to support a conviction.
A Prior Consistent Statement Does Not Bolster Credibility
13The fact that a witness has made a prior statement consistent with her testimony at trial is not a factor that constitutes corroboration of her testimony. A prior inconsistent statement may be relevant to credibility, but a prior consistent statement is not. The fact that a witness has told the same story a number of times does not mean it is true; it merely means that she has told the same story a number of times.
14In the past, a prior consistent statement was considered admissible and relevant to support the credibility of a witness;4 however, this is no longer the case. This evidence is now largely excluded due to its self-serving nature and lack of probative value.5 As one court described the rationale, “consistency is a quality just as agreeable to lies as to the truth.”6 While prior consistent statements generally lend no support to credibility, there are limited exceptions where they may be deemed useful. Prior consistent statements may be admitted to negate an inference or allegation of recent fabrication, to confirm that the present version of events is not new but was in fact stated in the same manner in the past.7 Also, these statements may be admitted to rebut an allegation that the complainant failed to make a timely complaint.8 In both of these exceptions, the prior consistent statement is admitted not for the truth of its contents, but merely for the fact that it was made.
15In this case, there was an allegation that Ms McCaw fabricated her evidence years after the event. A number of prior consistent statements were introduced. The question is the extent to which I find them helpful in assessing overall credibility.
The Presumption of Innocence and Burden of Proof
16Finally, I must be mindful throughout my analysis that Mr. Neff is presumed to be innocent. The burden is on the Crown to prove his guilt beyond a reasonable doubt. It would not be enough for me to find that Ms McCaw is probably telling the truth. Based on her evidence, I must be sure that Mr. Neff committed the crimes she has alleged. This is always difficult in situations where an incident occurs behind closed doors with the only witnesses being the complainant and the accused. However, that does not displace the burden of proof on the Crown, nor does it reduce the weight of that burden. Based on the evidence of the complainant, I must be satisfied beyond a reasonable doubt of the accused’s guilt. Otherwise, I must acquit. This presents particular problems where there are issues with respect to the credibility of the key witness.
C. CREDIBILITY OF THE COMPLAINANT
Background
17The complainant, Christine McCaw, is currently a college professor, having previously worked for 21 years at a major Canadian bank. The accused, Duane Neff is a high school English teacher. They met through mutual friends in March 2008, when she was 39 and he was 44. Each was single, had never been married, and had never had children. She lived in Toronto where she owned her own home; he lived in the Pembroke area, where he owned one home and was in the process of building another. In June 2008, Ms McCaw learned that she had become pregnant by Mr. Neff. This had not been planned. Although their relationship was at a very early stage, both agreed they wanted to keep the baby and to continue as a family. Mr. Neff had already arranged a leave of absence for the fall 2008 school term so he could complete the construction of his new home. The baby was due in February, 2009. Ms McCaw planned to take a maternity leave when the baby was born, stay with the baby in Toronto for about six weeks after the baby was born (under the care of a midwife), and then live with Mr. Neff in the new house near Pembroke, although keeping her home in Toronto. To accommodate that, Mr. Neff extended his leave of absence from work to also include the winter term at the beginning of 2009.
18Even from the very beginning, things did not go well. The relationship was plagued with frequent arguments and misunderstandings. Ms McCaw agreed that it was a volatile relationship and that the anger and recriminations flowed both ways. Together they attended couples counseling with a psychologist, Dr. Cheston, in an attempt to resolve these differences. This was ongoing even before the baby was born.
19The baby (“Floral”) was born prematurely in January 2009, by Caesarean section, after a difficult labour. Ms McCaw required care at home for a number of weeks after the birth. Mr. Neff came to Toronto for the birth and helped look after Ms McCaw and the baby for a period of time after that. Ms McCaw’s friends and mother also helped. Mr. Neff then went back to Pembroke to continue work on the house, which was still not ready. During that time, he typically spent the week in Pembroke and visited Ms McCaw and the baby in Toronto on weekends.
20As of the end of February 2009, there were still lots of problems between Ms McCaw and Mr. Neff, but both of them were devoted to the baby and trying to make their own relationship work. The plan was that Ms McCaw and the baby would be leaving soon to live with Mr. Neff in Pembroke.
21Those plans were delayed after a major confrontation between the parties in March 2009, which is the subject of the charges now before me. This is the incident in which Ms McCaw alleges Mr. Neff choked her until she was unconscious, pointed a gun at her, and threatened to kill her. I will deal with that incident in more detail in the next section of these reasons. However, before turning to the details of that incident, it is useful to provide an overview of what happened between these two individuals after the incident, but before these charges were laid.
22It would appear that Ms McCaw did move to Pembroke with the baby sometime around mid-April 2009. She and Mr. Neff continued to have arguments. On one occasion in June 2009, the screaming and yelling between them was so bad that a concerned neighbor called the police. No charges were laid, but at the suggestion of the police officers who attended, Mr. Neff spent that night at his mother’s home. The Children’s Aid Society was notified.
23Ms McCaw testified that there was another significant argument in the summer of 2009, which resulted in her taking the baby and staying with her parents in Prince Edward County for a large part of the summer. She said she returned to Pembroke and Mr. Neff in August, but that in September there was another argument in which Mr. Neff became so angry he punched his fist through a glass door and required medical attention.
24Finally, on January 23, 2010, there was an incident between them that ended the relationship for good. Ms McCaw testified that Mr. Neff was enraged because he mistakenly believed she had done something with the baby that he had asked her not to do. Ms McCaw responded by saying that perhaps she would take the baby to Toronto and not come back. She testified that when she said that, Mr. Neff put his hands around her neck and squeezed until she lost consciousness. When she woke up, she went into the room where Mr. Neff was and told him she was calling the police. She said he told her not to, but she advised him, “You are done telling me what to do.” She dialed 911 and reported that Mr. Neff had choked her and that she believed he might take the baby. It took about 40 minutes for the OPP to arrive, during which time Ms McCaw stayed on the phone with the 911 operator. Mr. Neff was in and out of the room during that time and can be heard at times denying any assault and claiming Ms McCaw hit him. However, for the most part, he waited outside for the police to arrive. At one point during her discussion with the 911 operator, Ms McCaw stated, “When somebody chokes you, like you get this siren in your head. It feels like you’re laying underneath of an airplane that’s taking off. It’s so loud.” She also said she believed there was a mark on her neck, but stated that she did not need an ambulance. In response to questions from the operator, she said that she believed Mr. Neff might have had a rifle at one time, but that she had not seen it since last March and did not know where it was. She also said that Mr. Neff had said that “he would never, ever do it again” and that “was almost a year ago.”
25When the police arrived, they arrested Mr. Neff and charged him with assault. When Ms McCaw realized they were going to do this, she cried and screamed out the window after them that she did not want him arrested. After two days in custody, Mr. Neff was released on bail, with a condition that he have no contact with Ms McCaw. She moved back to Toronto with the baby. She then hired a criminal lawyer for advice and wrote a letter in support of Mr. Neff, claiming that she did not want him to have a criminal record and lose his job as a teacher.
26In April 2010, Ms McCaw commenced proceedings in the Ontario Court of Justice seeking sole custody of the child. The initial material filed by Ms McCaw in those proceedings, referred to the acrimony between them, a history of abuse, the argument in the summer of 2009, and the pending criminal charges arising from the January 2010 incident. The March 2009 incident is not mentioned.
27In early April 2010, Ms McCaw became angry upon learning that Mr. Neff would be pleading not guilty to the assault charge relating to the January 2010 incident. She sent an email to Mr. Neff’s brother threatening that if Mr. Neff did not change his plea to guilty, she would have him charged with attempted murder in respect to another incident. (This email is dealt with in more detail below.)
28Access continued to be a contentious issue between this couple. In September 2010, Mr. Neff filed a response in the proceedings, in which he complained about the difficulties with access and sought custody of the child. He also requested an investigation and assessment by the Children’s Lawyer with respect to the custody and access issues. At a settlement conference in Toronto on September 22, 2010, the presiding judge ordered a custody assessment by the Children’s Lawyer.
29Ms McCaw testified that after the September 22, 2010 court session, she went home and wrote up a chronology of the history between her and Mr. Neff, a significant portion of which dealt with the assault which she alleges occurred in March 2009. Then, in October 2010 she reported the March 2009 incident to the police in Toronto, which resulted in the charges now before the court.
30In November 2010, Ms McCaw amended her material in the custody proceedings to add further details about the abuse and violence she alleges were perpetrated by Mr. Neff. That affidavit includes 20 paragraphs under the heading “Duane Threatens My Life with a Shotgun” detailing her allegations in respect of the March 2009 incident, stating that those charges were before the court, and declaring that she did not feel safe going to the police about these allegations previously, but was able to do so once she “got some distance from the relationship, was living safely on [her] own with Floral, and had the protection of Duane’s existing bail provisions.”
31In December 2010, the charges against Mr. Neff in relation to the January 2010 incident came on for trial. Ms McCaw gave evidence. After her testimony, the matter was resolved by Mr. Neff entering into a peace bond.
Details of The Central Event in March 2009
32By March 2009, Ms McCaw and Mr. Neff were planning that she and the baby would soon be coming to live with him in Pembroke, even though the final touches to the house had not been completed. Some of the details of their living arrangements had not yet been finalized. One bone of contention between them was the issue of pets. Mr. Neff had no pets; Ms McCaw had a dog and a cat. Mr. Neff thought the cat should sleep in the basement and the dog in a doghouse in the backyard; Ms McCaw considered her pets to be like members of her family.
33Ms McCaw testified that on the evening of March 12, 2009, she and Mr. Neff were discussing this issue on the telephone and a very heated argument ensued, which involved multiple calls back and forth with them screaming at each other. She said that she told Mr. Neff that they needed not to talk at all for awhile, and then to talk in person. However, no arrangements were made for meeting in person to talk.
34Immediately after this argument, Ms McCaw took the baby to the home of her friend Janet Carver-Smith, arriving at between 5:00 and 5:30. They had dinner there, watched a movie, and chatted. She said that she left her friend’s home at around 9:30 pm and upon arriving back at her own home (about 15 minutes away) put the baby down in the living room and immediately called her friend from the phone in the kitchen to tell her they had arrived home safely. Ms McCaw said this was something both she and her friend always did. She testified that while she was talking to her friend, she heard a key in the lock of her front door and Mr. Neff entered, carrying a guitar case. She said she was surprised to see him as she did not know he was coming. She said something to Ms Carver-Smith about Duane being there and hung up the phone. On cross-examination she confirmed that this call took place when she was in the kitchen and that it was not possible to see a car in her driveway from there.
35Ms McCaw said that Mr. Neff went into the dining room and sat down. When she came in, she could see that he was angry. According to her, Mr. Neff said, “I drove all this way so we could talk in person, so start talking.” (The drive between their two homes would have taken approximately five hours.) Ms McCaw told him that she had already stated her position on the phone. Then she went into the living room. She thought that would be a better place to talk. Mr. Neff did not follow her. Therefore, she went back to the dining room. He repeated that he had come so that they could talk. She replied that she did not want to get into a shouting match, and went upstairs to her bedroom.
36Ms McCaw testified that Mr. Neff followed her up to the bedroom. He saw some paper on the ground with her writing on it, part of an exercise for their couples counseling. He tried to pick it up and she did not want him to see it. They had a sort of tug of war over the pad of paper. She testified that at this point, Mr. Neff said, “That’s it!” and he came at her with both of his hands around her neck. She said she was pushed back onto the bed and he was staring into her eyes with rage on his face. She started to get little black dots in front of her eyes, then complete blackness. She said the next thing she remembered hearing was an “unbelievable sound” that she described as “deafening” and “like an airplane engine next to my eardrums.” In cross-examination, she said it was “like being on an airport runway” and that it was so loud she thought she was going to go deaf.
37In examination in chief Ms McCaw said she thought she was on the floor in the bedroom at that point. Also, in chief, she testified that the next thing that happened was she felt herself moving, as if she was being carried like a rag doll. She said her eyes were not open and she was unable to move. When she next opened her eyes, she was again on the floor of her room beside the bed. She said Mr. Neff told her to get up, but she could not move, so he “threw” her on the bed. She scrambled across to the other side of the bed, at which point he opened the guitar case which was on the baby’s pram at the foot of the bed, withdrew what appeared to be a hunting rifle, and pointed it at her head, stating “You’re going to talk to me or I’m going to blow your fucking head off.” She testified that she told Mr. Neff that if he was going to kill her, he should just do it, because she could not talk to him “like this.”
38Ms McCaw testified that she was crying and terrified and that Mr. Neff was in a rage. She said that he would sometimes point the gun at her and sometimes tap it on the floor while ranting at her. He also threatened at one point to kill himself and said that she had driven him to it. She was unable to say how long this went on for, but at some point the baby (who was still in the living room) started to cry and needed to be fed. She said that this had the effect of defusing the situation.
39She went downstairs and breastfed the baby. Mr. Neff accompanied her. Then, he took the baby and changed her and put her to bed. Afterwards both Ms McCaw and Mr. Neff sat together for a bit. Both were crying. She said Mr. Neff told her he realized he needed help. She asked him about the gun and he said he was going to break it up in a million pieces and throw it into the rivers and forests between Toronto and Pembroke on his way back home. According to Ms McCaw, Mr. Neff left at about 3:00 am to drive back home. They hugged before he left. She said she was concerned about him driving in that emotional state and called him a number of times on his cell phone. He called her back from his home at between 8:00 and 8:30. She testified that she asked him what happened to the gun and he said it was gone. She then said, “Please tell me there were no bullets” and he told her that there were bullets. She asked him if there was a safety on the gun and he said he did not think so.
40In cross-examination, Ms McCaw repeated her evidence in chief about the sensation or “feeling” of being moved after she was choked and said she recalled “feeling like [she] was hoisted up like a rag doll.” Later in cross-examination, Ms McCaw was taken to the statement she gave to the police in October 2010 in which she said that after choking her, Mr. Neff “dragged” her downstairs by the arm, and that she then remembered him “getting something and then hoisting [her] up and carrying [her] up the stairs and kind of tossing [her] back on the floor.” She took the position with defence counsel that this was “congruent” with her testimony at trial. On cross-examination, she was also referred to the affidavit she filed in the custody proceedings in November, 2010. In that affidavit, she stated (at paragraph 36), “Duane dragged me downstairs, where he grabbed something. He then dragged me upstairs. He left me on the floor of the bedroom.” When asked about the difference between being “dragged” as opposed to “carried” up and down the stairs, and being “left” on the floor, as opposed to “tossed” there, she countered that she did not see this as different and that it was only a matter of “semantics.”
41Ms McCaw was also referred on cross-examination to paragraph 40 of her affidavit, in which she quoted Mr. Neff as saying, while pointing the gun at her, that she would talk to him “or else.” When asked about the discrepancy between that language and “I’m going to blow your fucking head off,” she said that it was difficult to recall exactly what Mr. Neff said because he “swore so much.”
42I am concerned about the differences in Ms McCaw’s various versions of what happened right after she was choked. I cannot agree with her characterization of these variations as being merely a matter of semantics. At trial, she described being lifted up like a rag doll and moved. She described it as almost a dream-like or semi-conscious state where she merely had a sensation or feeling. That is very different from her 2010 affidavit in which she said she was dragged downstairs, where Mr. Neff picked up something, and then dragged back upstairs again, where she was “left” on the floor. The police statement is different again. In that statement, she described being dragged downstairs by the arm and then carried back upstairs after Mr. Neff picked up something. Again, the differences are troubling.
43Likewise, I see a considerable difference between the threat “or else” and the threat “I’m going to blow your fucking head off,” even when both are uttered by a man holding a gun. The version sworn to by Ms McCaw in her affidavit is closer to the event and arguably more likely to be accurate. I am concerned that the language attributed to Mr. Neff at trial is either embellishment, or an inability to remember the precise details of the previous version given, as opposed to mere innocent mis-recollection of the exact words spoken by Mr. Neff.
44That said, if this incident occurred, it would obviously have been stressful and traumatic. It would not be surprising if the victim of such an attack had an imperfect recollection of all of the details after the event. If this were the only problem with Ms McCaw’s testimony, it would be less troubling. However, when taken with other problems, it looms somewhat larger.
The April 2010 Email to the Accused’s Brother
45In cross-examination, Ms McCaw was confronted with an email she sent to Mr. Neff’s brother and sister-in-law on April 9, 2010. She started that email by stating she was “so sad” to hear that Mr. Neff was going to plead not guilty to the assault charge related to the January 2010 incident. She pointed out that if Mr. Neff did not tell the truth in court by pleading guilty, he would be setting a very bad example for his daughter (who was at that time about 15 months old). She said that she did not intend to “sit by quietly” while Mr. Neff told the world she was a liar. She then stated as follows:
I have a signed confession letter from the first time Duane put his hands around my throat and squeezed until I stopped breathing.
Further, I have tape recorded conversations of him admitting that he wasn’t sure if the safety was on the loaded rifle the night he drove to Toronto, pointed it in my face and threatened to pull the trigger. These tapes are admissible in court because I knew and gave my consent to the recordings when they occurred.
Duane has until May 19th to change his plea to Guilty and take the laughable conditional discharge offered by the crown.
If not, I will share everything with the crown.
I would like to see him beat an attempted murder wrap.
He is violent and MUST get help. He won’t acknowledge this on his own and seek the help he so obviously needs. I WILL make sure he gets that help….in prison.
46Ms McCaw admitted sending the email. She said her purpose was to ensure that Mr. Neff got help. She testified that she was telling the truth in the email when she said she had a signed confession from Mr. Neff with respect to the choking incident and a tape recording of her telephone discussion with him when he admitted that he had brought a loaded rifle to her home and that he thought the safety was not on at the time he threatened her with it. However, she admitted in cross-examination that she has never told the police about either of these items. In re-examination, Ms McCaw was asked why she had never produced the written confession or tape recording. She responded that this was because they were “taken” from her home. She said she had kept the confession and recording together and had attempted to put them in a friend’s safety deposit box but the “device” would not fit in the box, so she decided to keep them both at her home. (It is worth noting, in that regard, that Ms McCaw is an intelligent woman with an MBA and a 21-year-career in banking. Obtaining an appropriate safety deposit box would not have been difficult for her.)
47Ms McCaw testified that when unable to use her friend’s safety deposit box, she decided to hide the confession and tape in her bedroom and that she would move them around from time to time, from her desk, to drawers under her bed. Then, she said, they disappeared. She claimed that she did not know when they disappeared and did not know when she first realized they were gone. When asked if they were gone before she made her report to the police in October 2010, she said, “Probably.” She then volunteered the information that she had organized a “search party” at her home, that she invited all of her friends over for a “find the document party,” but that nobody found anything. She then named Mr. Neff as one of the people who had a key to her home at the relevant time, but then amended that to say that she had changed the locks to her house in November 2008 before the baby was born and that Mr. Neff did not have a key after that. She then changed her mind again and acknowledged that Mr. Neff did have a key in March 2009 (she had, of course, testified earlier that on March 12, Mr. Neff had let himself into the house with his key while she was on the phone). She said she now realized it was after the baby was born that she changed the locks. She said it was before the January 23, 2010 incident when Mr. Neff was arrested, while she was still living in Pembroke.
48In April 2010, when Ms McCaw sent that email to Mr. Neff’s brother, she had left Pembroke and was living in her own home in Toronto. She was clearly stating in the email that at that time she had both the confession and the tape recording in her possession. Mr. Neff was certainly not in her home after January 2010. Under the terms of his bail he was prohibited from being in contact with her, and she acknowledged in her evidence that there had been no contact between them. I do not believe for a moment that he somehow broke into her home after April 2010, found the documents she had hidden, and stole them, all without leaving any trace that he had been there. I also find it hard to believe that Ms McCaw would simply have misplaced evidence that she had gone to such efforts to obtain. Finally, I do not believe that Ms McCaw ever had a party in which she asked all of her friends to search her house for the confession and tape. Indeed, I have a hard time believing that the confession or the tape recording ever existed.
Delay in Reporting, Motive to Fabricate, and Animus
49The defence points to the significant delay in reporting this incident as a factor affecting credibility. Ms McCaw testified that initially she was embarrassed to tell anyone what had happened. Also, she loved Mr. Neff, she knew that he loved their daughter, and she wanted them to be a family. She said he promised to get help and that this was what she thought was needed. All of these are plausible explanations and are not uncommon to the reactions of many women who have been the victims of domestic assault. I do note, however, that it differs from the reasons she gave in her affidavit in the custody proceedings.
50When the neighbours called the police in June 2009, Ms McCaw had another opportunity to report this assault. Again she did not do so. However, the same rationale for not reporting may still have been in operation. Following this altercation, the police notified the local Children’s Aid Society and Ms McCaw and Mr. Neff attended to be interviewed. Again, Ms McCaw failed to report the March 2009 incident, but again this may be explained by her stated desire to keep the family together.
51I have more difficulty understanding the failure to disclose this incident to the psychologist Ms McCaw and Mr. Neff were seeing together for couples counseling. Ms McCaw testified that one of the conditions of her moving to Pembroke was Mr. Neff’s assurance that he would get help to deal with his anger and violent behaviour. Ms McCaw acknowledged on cross-examination that after the March 2009 incident, they resumed couples counseling and that she wanted to share with Dr. Cheston what had happened. However, she said that Mr. Neff did not want to do that, and so they did not. I find this surprising given Ms McCaw’s testimony that Mr. Neff had promised to get counseling for this issue and that the purpose of the couples counseling was to deal with problems in their relationship.
52The next obvious opportunity Ms McCaw had to report the March 2009 incident was in January 2010 when Mr. Neff was arrested after she called 911 to report an assault that occurred that day and which seems quite similar to the March 2009 allegations, albeit without a gun. When Ms McCaw was asked by the 911 operator if Mr. Neff had a gun, she said she did not know. She then said that she had seen a rifle a year before, but did not say that Mr. Neff had threatened her with it and did not say that he told her he had destroyed it. During that 911 call, she also made reference to Mr. Neff having said a year before that he would “never do that again” but provides no further details. She may have been referring to a prior choking incident, but it is unclear. In any case, she did not follow up with an allegation of a prior assault. Indeed, after the police arrived, she even protested Mr. Neff being arrested. I recognize, however, that the failure to report the March 2009 assault at this stage might still be because Ms McCaw was trying to keep the family together and did not want Mr. Neff to lose his job and go to jail.
53However, all of this had changed by April 2010. In March 2010, Ms McCaw swore an affidavit in support of her application for sole custody of Floral, and for a restraining order against Mr. Neff. In April the formal application was filed. By this time, the gloves were off. Ms McCaw was no longer trying to keep the family together; she was seeking sole custody of her child and she was citing Mr. Neff’s assaultive conduct as a factor in support of her case. The Application form (Exhibit 7 at trial) refers to: the “heated argument” in the summer of 2009; the January 23, 2010 assault in which Mr. Neff is said to have choked Ms McCaw until she lost consciousness; and, the resultant criminal charges against Mr. Neff. It does not mention any incident in March 2009. The Affidavit signed by Ms McCaw (Exhibit 8) is in a form which requires disclosure of whether the respondent (Mr. Neff) had at any time committed violence or abuse against his spouse. Under this section, Ms McCaw attested that Mr. Neff choked her until she lost consciousness on January 23, 2010 and that she remained fearful of him. She did not mention any March 2009 assault.
54Both parties and their lawyers appeared before a judge in the custody proceeding on September 22, 2010. By at least that date, Ms McCaw was aware that Mr. Neff was seeking custody of their daughter, Floral. She was also aware by that date, that he was not pleading guilty to the January 2010 assault charge, notwithstanding her threatening email in April. At this appearance, the presiding judge made an order seeking the involvement of the Office of the Children’s Lawyer to conduct a custody and access assessment. It was immediately after this court hearing that Ms McCaw went home and proceeded to write up a chronology of her problems with Mr. Neff.
55This was then followed in early October 2010 with her report to the police as to the alleged assault in March 2009. Then, in November 2010, she filed a new affidavit in the custody application providing details of Mr. Neff’s alleged assaultive behaviour, including choking her and threatening her with a gun in March 2009 and asserting that he was now facing criminal charges with respect to that incident.
56Notwithstanding Ms McCaw’s protestations about her benevolent motivations for reporting this incident in October 2010, I am completely satisfied that she brought this incident up when she did so that she could use it against Mr. Neff in the custody battle. She has a palpable animus towards Mr. Neff and she wants sole custody of her daughter. She is using every tool at her disposal to accomplish that end.
57I hasten to add that just because Ms McCaw decided to report this matter within the context of a custody dispute, and for the purpose of advancing her position in that custody proceeding, does not mean that her allegations are untrue. Indeed, if her allegations are true, they would be relevant to the custody dispute and should be disclosed. However, the timing and motivation do give rise to some concern that the delay in reporting may not have been as innocent as Ms McCaw suggests. This is particularly troubling in light of the failure to disclose the incident, despite its relevance, in the initial March 2010 affidavit. Ms McCaw’s prior concerns about keeping the family together had vanished by that time. Likewise, she was no longer concerned about Mr. Neff acquiring a criminal record and losing his teaching job. Her April 9, 2010 email makes it clear that she wanted a conviction on the January 2010 charge and that she considered a conditional sentence for Mr. Neff to be “laughable.” Also, she no longer lived anywhere near Mr. Neff, he was prevented from the terms of his bail from having any contact with her either directly or indirectly, and he was obeying that term of his bail. It is within that context that the delay in reporting and the motivation behind the eventual reporting become particularly troubling.
58There is some indication from the evidence of Eva Hourigan that Ms McCaw may have disclosed the fact of a choking incident and a threat with a gun by as early as March, 2009. I have dealt with that issue in some detail in the section below, relating to corroboration. For present purposes, suffice to say that notwithstanding the possibility of an earlier disclosure, I still have substantial concerns about the details of what occurred and both the timing and motivation of Ms McCaw’s eventual report to the police.
Assessment of Credibility
59I have a number of concerns about Ms McCaw’s credibility as a witness. While the delay in reporting the incident initially may be explainable, it is difficult to understand why disclosure was not made in the March 2010 affidavit. The timing of the disclosure gives me a real concern that Ms McCaw is using this alleged assault as a weapon against Mr. Neff in the custody battle for their daughter. That does not mean it is untrue, but it causes me to look carefully at her overall credibility as a witness.
60Also, as I have mentioned above, I am troubled by inconsistencies in her testimony about what happened after she was choked. I am concerned that she may be embellishing, or even fabricating, details of the alleged assault after the fact.
61Finally, both the content of the April 2010 email to Mr. Neff’s brother and Ms McCaw’s testimony about it in court are significant negative factors affecting her credibility. I have great difficulty believing she ever had a signed confession or tape recording as she alleged in that email. Even if she did have those things, it would still have been a despicable act to have used them to extort a guilty plea in respect of charges pending before the court on a separate matter. Not only is it despicable, it shows, in my view, a lack of respect for the judicial process and a willingness to subvert it for her own purposes.
62Also of great concern is Ms McCaw’s testimony that someone removed those items from her house. I believe she lied about this. While that does not mean she lied about everything else, it does make her an untrustworthy witness.
63Accordingly, I am not confident that Ms McCaw has been completely truthful with the court. I consider it unsafe to convict based solely on her evidence. I have therefore considered whether there is any other evidence to confirm relevant or material aspects of Ms McCaw’s testimony, such that I might have confidence in the truth of her evidence as a whole.
D. CORROBORATIVE EVIDENCE
The Emails from the Accused
64Ms McCaw relies on a series of emails between her and Mr. Neff the day after this incident as corroboration of what occurred between them.
65The string of emails began at 1:32 pm on March 13, 2009 (the day following the altercation between Ms McCaw and Mr. Neff). It started when Ms McCaw forwarded a video to Mr. Neff entitled “Sea Otters – Keep watching even after they break apart.” She testified that the video featured sea otters holding hands. Mr. Neff responded with an email at 3:01 pm simply stating, “I’m holding on even as we are apart.”
66Next in the string is an email from Ms McCaw at 5:08 pm, which is the first indication of there being anything wrong between them. In that email she stated:
Oh Duane .. what are we going to do? I am so afraid of you now….I don’t know if I can not be afraid. I am afraid now to say what is bothering me. I am afraid of what will happen if we start to fight. I am afraid to come there with Floral. Where will I stay? I am afraid to stay with you at your house. How can we possibly move forward with me feeling this way? What can we do to make me feel safe? I don’t know. I just don’t know.
67Not having received a response, Ms McCaw sent a further email at 6:21 pm asking for answers to these questions. Mr. Neff responded by email at 7:05 pm. He started by telling her that he loved her and that it was painful for him when they fought. He then stated:
What will we [sic] happen if we start to fight? Nothing. We recognize the stress and signs and disengage, like we know we should. Instead, lately, we’ve taunted each other. That doesn’t help. We need to keep the respect while recognizing the differences. Take time outs, recognize that time to think and mull is fair [sic] more important than winning cheap points. Talk about the things that are important to us before they are critical. Use the lessons we have not used in the book to build our techniques and understanding. As for staying here, don’t if you can’t. Stay at mom’s. I’ll keep the dog here at nights. We explain it by saying its still not comfortable enough (it still is marginal, for bathrooms), and mom would love to have you. Then you can come here during the days/evenings to poke at things. Or stay longer at your place and I’ll drive to visit. But it will take time to reestablish trust. I don’t know of any other way.
68Ms McCaw responded at 7:42 pm, stating that she was not comfortable staying at Mr. Neff’s mother’s home. She proposed as an alternative that she stay in Toronto for awhile and that he visit her there. She said that when he was in Toronto, he could stay at her house and she would stay overnight with her friend Janet until they could “reestablish trust.” Then as trust was rebuilt, they could stay together in Toronto, and ultimately she would move to live with him in Pembroke. She also suggested that they return to couples counseling with a therapist they had been seeing before the birth of their daughter, and continue with someone else in Pembroke after the move.
69Presumably, there was some response by Mr. Neff to this proposal. However, if it was in the form of an email, Ms McCaw either did not save it, or chose not to produce it to the police. The only other email she produced was an email sent by Mr. Neff at 1:43 pm on March 15. Apparently, Mr. Neff had spent the afternoon of either March 13 or March 14 out on the river with friends and had told Ms McCaw that he had an “awesome” time. She testified that she had responded in anger that he would do such a thing when she was at home afraid. She did not produce the email she sent to Mr. Neff, but only his reply. In that responding email (bearing the title line “Awesome?”), Mr. Neff was clearly contrite and at pains to make it clear that although it was “awesome” to be with his friends, he was otherwise devastated by what had happened between them. He stated that he “hurt the whole time (he) was there” and that, except when distracted by his friends talking to him, he spent the time in “regret, pain, and loathing.” He then stated:
I know I hurt you Christine. I know you are afraid, upset and confused. I also feel these things, and look for the strength and help to move past them. I have left nothing behind. I carry these memories with me every moment and they disgust me. My life feels empty.
70It is apparent from these emails: that there was a problem between Ms McCaw and Mr. Neff on the night of March12/13; that Ms McCaw was upset about what occurred; that Ms McCaw felt unsafe as a result of what occurred; and that Mr. Neff understood why she would feel that way and was contrite. However, the emails do not actually confirm what happened. There is no outright apology by Mr. Neff, nor does he take responsibility for having assaulted or threatened Ms McCaw. The emails are equally consistent with him having lost his temper, or said hurtful things to her. They do not even make it clear that the incident between them was in person as opposed to over the telephone. There is no reference by either party to a threat, an assault, or a weapon. It is clear to me that something happened that night, but it is not clear from these emails what it was. I do not find the emails to corroborate any material aspect of Ms McCaw’s version of what happened that night. They do not assist me in determining whether I can believe Ms McCaw’s testimony.
The Photographs Taken by the Complainant
71Ms McCaw also relies upon four photographs which she testified she took of her own neck on the morning of March 13, 2009, using her cellphone. Ms McCaw first provided these photographs to the police as attachments to four emails sent to the investigating officer on November 29, 2011, more than a year after she had first reported the incident to the police. There is no evidence apart from Ms McCaw’s testimony to confirm that the photographs were actually taken on March 13, 2009. Although Ms McCaw testified that the date was automatically recorded on the photographs by her phone, I do not believe that to be the case. The photographs are entitled:
- Christine McCaw Neck – March 13, 2009.jpg
- Christine Neck – March 13, 2009 -5 09pm.jpg
- Christine Neck – March 13, 2009 -5 10pm.jpg
- Christine Neck – March 13, 2009 -5 11pm.jpg
72If these titles were added automatically by the phone, I would expect there to be consistency in the naming protocol. For example, I would expect that if a phone automatically records the time of a photograph, it will do so for all photographs, whereas only three of these four photographs have a recorded time. I also expect it would be unusual for the date to be printed out in full, rather than numerically, and there would not likely be empty spaces between digits or letters in a computer generated title. Obviously, the phone did not include the portion of the title that contains the descriptor of what is in the photograph. Therefore, at least put that portion of the title must have been added by Ms McCaw. It is most likely that she also put in the date and time. Of course, just because the dates were not added by the phone itself, does not mean that the photographs were not taken on March 13. It is simply that without expert evidence confirming that the photographs were in fact taken on March 13, 2009, I am unable to conclude that this is so. The date in the titles could have been, and indeed likely was, added by Ms McCaw herself.
73Ms McCaw testified that she originally had the photographs stored on her phone, but that she then emailed them to herself so that she would have a record of them somewhere other than on the phone itself. In her emails to the investigating officer it looks as though Ms McCaw emailed them to her gmail account on April 30, 2009. The Crown argues that this means that, at the very least, the photographs were already in existence on April 30, 2009. That is probably the case, although without assistance from an expert I am unsure that it is necessarily so.
74In any event, not much turns on when the photographs were taken because I do not find that they corroborate the incident described by Ms McCaw. Ms McCaw pointed to two aspects of the photographs as supporting her evidence that Mr. Neff strangled her using both his hands with sufficient force that she lost consciousness. One “mark” she pointed to appears to be simply a horizontal line or crease in the skin of her neck. It requires no expertise to conclude that this is not an injury inflicted by manual strangulation. Even Ms McCaw testified that she was unsure if this was an injury. The main injury she pointed to was a small area of discolouration on one side of her neck, which I accept could be a bruise. However, it is small and only in this one spot. It does not appear to me to be consistent with the extent of the strangulation described by Ms McCaw. I would have expected to see far more extensive bruising than is seen in these photographs, even just a day after the incident. However, while as a trial judge I have seen photographs of injuries sustained by victims of strangulation, I am a lay person and claim no expertise as to what injuries would necessarily occur in such an incident. No expert evidence was called with respect to the photographs themselves, nor with respect to the nature of the injury one could expect to see in the aftermath of such a strangulation. I therefore make no finding that the photographs disprove Ms McCaw’s version of the event. However, neither am I in a position to say that the small mark on Ms McCaw’s neck is consistent with what she has described. It is certainly not obviously the case.
75I do not find that the photographs provide corroboration for Ms McCaw’s evidence. Neither do I conclude that the photographs are an indication of fabrication. I am treating this evidence as neutral.
The Evidence of Janet Carver-Smith
76Janet Carver-Smith is the complainant’s best friend. Ms McCaw knew that her friend Janet did not like Mr. Neff. She cited this as a reason she did not tell her about the March 2009 assault after it occurred. However, Ms Carver-Smith was called as a witness to corroborate that Mr. Neff had unexpectedly come to Ms McCaw’s home late on the night of March 12, 2009.
77Ms Carver-Smith testified that Ms McCaw had come to her home for dinner on the night in question, bringing the baby with her. She was certain this would have been a Friday night after she returned from work. She prepared dinner and then they chatted and watched television. She said that Ms McCaw left at about 11:00 or 11:30. Ms McCaw’s own evidence is that she arrived home that night sometime 9:30 and 10:00, but given the passage of time, this slight discrepancy is not troubling.
78Both Ms Carver-Smith and Ms McCaw testified that, in accordance with their usual practice, Ms McCaw telephoned her friend as soon as she reached home to confirm that she arrived safely. According to Ms Carver-Smith, while they were on the phone, Ms McCaw told her that she saw headlights in the driveway. She said that Ms McCaw went to look and then came back to the phone and said that it was Mr. Neff, who had arrived unexpectedly. Ms Carver-Smith further testified that she did not speak to Ms McCaw again until Monday (three days later) and that she could tell from her friend’s voice that “something was off.”
79Although this evidence is proffered as corroboration of Ms McCaw’s testimony that Mr. Neff came into the house unexpectedly that night, there is a material discrepancy between the versions of the two women. Ms McCaw said that she was talking to her friend when she heard a key in the lock of her front door and then saw Mr. Neff walk in, which she reported to her friend. Ms Carver-Smith says it was the lights of the car in the driveway that alerted Ms McCaw, but Ms McCaw’s testified that she could not see her driveway from the kitchen where she was using the phone.
80Of even more concern is the discrepancy in the day of the week. Ms Carver-Smith was clear that this occurred on a Friday night after she came home from work. It is also clear from the emails sent between Ms McCaw and Mr. Neff on March 13 that the incident in question occurred late on the night of March 12 or in the early morning hours of March 13. March 12, 2009 was a Thursday. Therefore, if the evening Ms Carver-Smith recalls was a Friday, it was not the night when this incident occurred. In her statement to the police, sent by email in November 2011, Ms Carver-Smith said that this Friday night incident had been in February. When cross-examined on that point, she testified that there were several such evenings in February and March, but that it was “absolutely” on a Friday night.
81It is very unclear when Ms McCaw told Ms Carver-Smith any of the details of this alleged incident. Ms Carver-Smith testified that when she asked Ms McCaw on the following Monday if something was wrong, she was told that everything was fine. She initially testified in chief that the first time her friend told her any details about the incident was after Ms McCaw had reported it to the police (which was in October 2010). Under cross-examination, she said that the first time she learned of it was in the fall of 2011 when Ms McCaw came to stay with her for a weekend (which also makes sense in light of Ms Carver-Smith’s first contact with the police being in November 2011). However, later in her cross-examination, she said that she was mistaken when she said this weekend was in the fall of 2011, and that in fact it was in the fall of 2009. She testified that on that occasion Ms McCaw told her that Mr. Neff had appeared at the house that night with a gun and had pointed it at her head. Ms Carver-Smith never disclosed to the police that Ms McCaw had told her about Mr. Neff having a gun.
82In the fall of 2010, Ms Carver-Smith swore an affidavit for use by Ms McCaw in the pending child custody/access proceeding in provincial court. In that affidavit, she refers to the three occasions on which she met Mr. Neff. Two of those occasions involved Friday nights in February when Ms Carver-Smith said she was visiting Ms McCaw at her home and Mr. Neff arrived unexpectedly from Pembroke. Although the affidavit was directed towards extolling the virtues of Ms Carver-Smith as a parent and the failings of Mr. Neff in that regard, it makes no mention of any assaultive behavior or any incident involving a gun. I think it unlikely that Ms Carver-Smith knew anything about this assault allegation at the time she swore her affidavit in the fall of 2010.
83I did not find Ms Carver-Smith to be a reliable witness. It appears that Mr. Neff often arrived in Toronto to visit Ms McCaw without advance warning. It also appears that there were a number of occasions in February and March when Ms Carver-Smith had Ms McCaw at her home for dinner. There is no particular reason for her to remember when this particular incident occurred, as between February and March. The only thing she is really clear about is that it was a Friday, which means it could not have been the night of the incident in question, which was a Thursday. Her evidence with respect to the date of first disclosure by Ms McCaw was conflicting. Her initial evidence, perhaps before realizing there was any importance with respect to the timing, was that she first learned of the incident after Ms McCaw had already reported it to the police. She later said it was in the fall of 2011, which is also plausible given the date of her own first contact with the police. This aspect of her evidence is more likely to be accurate than her subsequent evidence that the first disclosure was in the fall of 2009. Ms Carver-Smith is very loyal to her friend and has a deep dislike of Mr. Neff. In all of these circumstances, I find her evidence to be unreliable and I do not accept it as providing any corroboration of Ms McCaw’s evidence.
The 911 Call and April 2010 Email by the Complainant
84The Crown relies on Ms McCaw’s statements to the 911 operator and the content of the April 2010 email to Mr. Neff’s brother as providing some corroboration for her testimony at trial. Strictly speaking, since these statements emanated from Ms McCaw, they do not constitute independent corroboration of her testimony. However, they may apply to rebut the defence suggestion of recent fabrication. Given that the delay in disclosure in this case is a factor I have noted as relevant to my assessment of credibility, it is important to consider both of these pieces of evidence in that light.
85The difficulty with the statements made by Ms McCaw in the 911 call is that they are vague. The statement by Ms McCaw that Mr. Neff had said a year ago that he would never do such a thing again, might refer to a prior incident of choking, or it might refer to some other perceived wrong, such as losing his temper, or some other expression of anger. It is not possible to tell. Likewise, Ms McCaw’s statement about Mr. Neff having a rifle in March 2009, does not provide any confirmation that she was threatened with a rifle at that time. Indeed, the inference is to the contrary. She spoke vaguely about believing Mr. Neff had a gun “before.” When asked how long ago that was, she said, “Last March.” The operator then asked, “So, you never saw it then?” to which Ms McCaw answered, “Yes.” It is difficult to know what that means. It is ambiguous at best. When asked if it was a handgun or a rifle, Ms McCaw said, “I think it’s a rifle.” Again, it is not even clear from this that Ms McCaw ever actually saw the gun, much less that Mr. Neff pointed it directly in her face and threatened to kill her with it.
86In her April 9, 2010 email to Mr. Neff’s brother, Ms McCaw does make direct allegations of a prior choking incident at the hands of Mr. Neff and of Mr. Neff bringing a gun to her home in Toronto and threatening to shoot her with it. It is not clear whether these are the same incident or two separate incidents. My main difficulty with this evidence, however, is that it does nothing to support Ms McCaw’s credibility. All it does is establish that if the story she told the police in October 2010 was invented, she had already started to formulate a plan to invent that story by as early as April 9, 2010. The fact that Ms McCaw made these references within the context of threatening to have Mr. Neff charged with attempted murder unless he pleaded guilty to assault in a different proceeding cannot be said to enhance her overall trustworthiness as a witness.
The Evidence of Eva Hourihan
87Finally, I have given very careful consideration to the testimony of Eva Hourigan, who I consider to be an honest and forthright witness. But for her evidence, I would not have struggled with this case as I have. I would have rejected the testimony of Ms McCaw and acquitted Mr. Neff. However, Ms Hourigan’s evidence has given me pause.
88Eva Hourigan and Christine McCaw were not, and are not, particularly close friends. They met 10 years earlier when they were both involved in a community theater production and stayed in touch every now and then after that. At Ms McCaw’s suggestion, Ms Hourigan joined the board of directors of a community organization on which Ms McCaw also served. For a period of about seven years, they would see each other once a month or so at board meetings, and occasionally at other social events. They were not best friends or confidantes. I am completely satisfied that Ms Hourigan would not fabricate evidence to assist Ms McCaw. She ha no animus towards Mr. Neff, and indeed has never met him.
89Ms McCaw testified that shortly after the March 12/13, 2009 incident, Eva Hourigan came to visit her for lunch. She said that Ms Hourigan noticed that she did not seem to be herself and asked her what was wrong. According to Ms McCaw, she did not tell Ms Hourigan any details of the incident, but merely “alluded” to her that things were not going well and that she was not sure what to do. She repeated in cross-examination that she had told Ms Hourigan that “things had happened” but did not reveal the details of those events.
90Ms Hourigan testified, and I accept, that she first spoke to the police about this matter in February 2012, nearly three years after the event. She did that in response to an email request from Ms McCaw. She was clear in her evidence that Ms McCaw gave her no other information in the email, and I accept that. She also claimed to have had no knowledge about what was going on between Ms McCaw and Mr. Neff, except that she saw her at a Christmas party at Ms McCaw’s mother’s home and that she gathered at that time that she and Mr. Neff were no longer together as a couple. I am unclear whether this party was the Christmas of 2010 or 2011.
91Ms Hourigan testified that she visited Ms McCaw at her home after the baby was born. She was unsure of the date, except that she herself was pregnant at the time and her baby was born in May 2009, so it was earlier than that. She testified at trial that she thought Ms McCaw’s baby would have been about six weeks old. However, upon cross-examination, she acknowledged that in her statement to the police on February 24, 2012, she said the visit was around the end of February and that the baby was tiny, not more than two or three weeks old. She also remembered that Ms McCaw was getting ready for a move and that there were packing boxes in the house.
92Floral was born on January 29, 2009. At the end of February, she would have been four weeks old and on March 14, she would have been six weeks old. It is unlikely the baby was only two or three weeks old at the time of the visit because of the care that was necessary for Ms McCaw after her difficult delivery. She had people in the house helping her for a few weeks after Floral’s birth and would not likely have been entertaining friends for lunch. Since the baby was born prematurely, she may have seemed younger at six weeks than she actually was. The presence of packing boxes is some indication that the visit was around March 2009. While it is not entirely clear that the visit was after the March 12/13 incident, it is certainly possible that this was the case. It could also have been earlier.
93Ms Hourigan testified that she immediately noticed that Ms McCaw was not her usual self. She described Ms McCaw’s usual demeanour as being happy, boisterous and talkative, whereas on this occasion she appeared to be “almost somber.” Ms Hourigan said she pressed Ms McCaw about what was wrong and that after much talking and prodding, Ms McCaw eventually shared that she had a fight with Floral’s father. This much of Ms Hourigan’s evidence is fully consistent with the testimony of Ms McCaw. However, Ms McCaw testified that this was all the information she shared. Ms Hourigan’s evidence was quite different from that.
94Ms Hourigan testified that Ms McCaw told her quite a lot of detail about the incident that had occurred, but that she (Ms Hourigan) is unable to remember much of that detail now. However, she said there were a number of details that stuck with her:
(i) When Ms McCaw moved her hair, Ms Hourigan saw pinkish purplish bruising on her neck, behind where the hair had been, and asked her about it;
(ii) Ms McCaw told her that Mr. Neff had choked her;
(iii) Ms McCaw told her that Mr. Neff had threatened her with a gun.
95Ms Hourigan said that she urged Ms McCaw to find a place to stay where she would feel safe and to get help, either through a Women’s Help Line or an employee assistance program with her employer. She said that as she was about ready to leave, Ms McCaw’s mother was arriving and Ms McCaw made her promise not to say anything about the assault.
96Ms Hourigan maintained that she has only ever had one conversation with Ms McCaw about this matter and it occurred at this time when she went to visit her with the new baby.
97On the face of it, Ms Hourigan’s testimony appears to corroborate the key elements of the incident described by Ms McCaw. There are some difficulties, however.
98The bruises Ms Hourigan describes as being hidden by Ms McCaw’s hair, do not seem consistent with the mark on Ms McCaw’s neck shown in the photographs that Ms McCaw claims were taken the day after the incident. In particular, the location is different. This, however, may simply be a mis-recollection by Ms Hourigan, which is understandable given the passage of time.
99Ms Hourigan testified that she believed the incident Ms McCaw was describing had not happened in her house, but rather somewhere else, perhaps in the eastern part of Ontario. However, when cross-examined on this point, she was unsure if that belief was based on something Ms McCaw had said, as opposed to an assumption on her own part, because she could not see how a gun would have been in Ms McCaw’s house in Toronto.
100On cross-examination, Ms McCaw was referred to her police statement in which she was asked for details about the gun and she replied:
I’m not sure why like---why the gun---I know the gun factored in that---that she told me he threatened her with the gun or---he brought it out and---and showed her this gun and she didn’t know that he had a gun I guess and that was kind of shocking and so---I mean and---beyond that I’m not too sure.
101In response to this, Ms Hourigan stated that her memory is that the gun was used to threaten Ms McCaw during the fight, and that she did not mean to say that it was possible Mr. Neff merely showed a gun to Ms McCaw.
102Finally, Ms Hourigan revealed a detail that was completely lacking from Ms McCaw’s version of the event. Ms Hourigan testified that Ms McCaw was worried about disclosing the incident because she was afraid she had done something wrong herself. Ms McCaw had told her that she had fought with Mr. Neff too and that they were both being physical with each other.
103As I said at the outset, I have no question about any dishonesty on Ms Hourigan’s part. She was an honest and fair witness. The question is whether her memory of this discussion is sufficiently reliable to provide corroboration of the testimony of Ms McCaw.
104It is odd that Ms McCaw does not remember having made this disclosure to Ms Hourigan. If the incident did occur, and she did tell Ms Hourigan about it, it is very strange (although not impossible) that she would have no memory of having done so. This makes me wonder if Ms Hourigan got these details later, or in some other way, and has merged them in her memory somehow. This seems somewhat unlikely given how clear Ms Hourigan was in her recollection of being told these details at that time, but the passage of time and its impact on her ability to recall details makes me a little uneasy about relying too heavily on this evidence.
105I am also mindful that since I have reservations about Ms McCaw’s overall credibility, it does not necessarily enhance her credibility to find that she told a similar story at an earlier occasion. It goes some considerable distance in rebutting the suggestion that her evidence was recently fabricated, but it does not mean that she was telling the truth on either occasion.
106Ms Hourigan’s evidence does provide independent corroboration of an injury to Ms McCaw’s neck at some time close to the incident alleged by Ms McCaw. However, there is no corroboration as to Ms McCaw’s version of how that injury was inflicted. One thing in particular troubles me. Ms Hourigan testified that Ms McCaw was worried about her own responsibility for a physical altercation that involved two people being physical. There was absolutely nothing like that in Ms McCaw’s version of this incident at trial. She portrayed herself as calm and rational and refusing to get into an argument. She portrayed Mr. Neff as angry and hostile when he arrived, flying into an even worse rage over almost nothing, throwing her around in the bedroom, carrying (or dragging) her up and down the stairs, strangling her until she was unconscious, and putting a gun to her head and threatening to blow her head off. In all of this, she describes herself as cowering, crying, and refusing to be drawn into a fight. That is not consistent with her own admission to her friend Ms Hourigan that this was a physical altercation between two people.
107In this context, it is by no means clear that the injury was caused by choking. If there was a two-way fight, it is possible this injury was as a result of falling, or an injury inflicted in self-defence. It is only Ms McCaw who says that it came from choking.
E. CONCLUSION
108For me, the crux of the problem is how much or how little can I believe of what Ms McCaw has said. Mr. Neff did not testify and I only have Ms McCaw’s version of what happened. As I have detailed in these reasons, I have concerns about Ms McCaw’s credibility. I am unable to find sufficient comfort from the potentially corroborative evidence to allay my concerns. Ms Hourigan’s evidence is somewhat persuasive. However, even that evidence points to Ms McCaw not having told the whole truth about the incident that occurred on March 12/13, 2009. Her evidence is not sufficient to bolster Ms McCaw’s credibility to the point that I can base a criminal conviction on her version of the central event. I am satisfied that something happened between her and Mr. Neff; I just cannot be sure what that was.
109Articulating reasons for why a witness is believed or disbelieved is one of the most difficult tasks facing a trial judge. That task has been particularly difficult for me in this case. I wish to make it clear that I am making no finding that Ms McCaw actually fabricated these allegations about Mr. Neff. My discomfort in relying on her evidence does not reach that point. However, this is one of those cases where I have a gnawing feeling in the pit of my stomach that there is much more to this story than I have heard. I cannot say with any certainty that Mr. Neff did any of the things of which he is accused. It is possible these things occurred, but I am not able to say I am satisfied of that beyond a reasonable doubt.
110I am therefore finding Mr. Neff not guilty on all counts.
MOLLOY J.
Released: November 28, 2012
Footnotes
- R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, 191 DLR (4th) 60, 148 CCC (3d) 41, 36 CR (5th) 261, 136 OAC 201.
- R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 2.
- R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1, at pp. 13-14; Khela, supra; R. v. Kehler, [2004] 1 S.C.R. 328, 2004 SCC 11, 181 C.C.C. (3d) 1 at paras. 13-14.
- J. H. Wigmore, The History of the Hearsay Rule, 17 Harv. L. Rev. 437 (1903-1904).
- R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, 229 C.C.C. (3d) 257, at para. 5.
- R. v. L.(D.O.) (1991), 1991 CanLII 2714 (MB CA), 6 C.R. (4th) 277 at 309 (Man. C.A.), rev'd on other grounds (1993), 1993 CanLII 46 (SCC), 25 C.R. (4th) 285 (S.C.C.).
- R. v. Ellard, 2009 SCC 27, 245 C.C.C. (3d) 183 at para. 32.
- R. v. O’Connor, 1995 CanLII 255 (ON CA), [1995] O.J. No. 2131, 25 O.R. (3d) 19 at paras. 41 – 43.