ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1603/11
DATE: 2013-02-27
B E T W E E N:
HER MAJESTY THE QUEEN
Cynthia Nadler
- and -
R.L.
Frederick J. Shanahan, for the Accused
Accused
HEARD: Nov, 27, 28, 29, 30, Dec. 3, 17, 20, 2012, Feb. 13, 2013
REASONS FOR JUDGMENT
Pursuant to S. 486(3) of the Criminal Code of Canada, a non publication and non-broadcast order has been made by The Honourable Justice Ria Tzimas.
E.R. Tzimas, J.
Introduction
[1] R.L. is charged with one count of assault and two counts of sexual assault against his wife, L.S., contrary to sections 266 and 271 respectively of the Criminal Code of Canada. The Crown alleges that the assault took place on April 30, 2009 and that the sexual assaults occurred on January 31 and October 10, 2010. The alleged incidents were reported to the police in early January 2011 and R.L. was charged shortly thereafter. R.L. denied all three allegations and pleaded not guilty to them.
Background
[2] R.L. and L.S. met at a party in July 1998. They dated for a year and were engaged in July 1999. On August 11, 2001 they were married. In the years that followed, R.L. and L.S. had a very happy life. Initially, they lived in a one-bedroom apartment. Then, with the financial assistance of L.S.’s father, they purchased their first home. Eventually they sold that house and upgraded to the home on A.D. where the three incidents are said to have taken place.
[3] By all accounts, the house at A.D. was beautiful and a great place to start a family. It was also located in a neighbourhood that proved to have neighbours who were especially, if not unusually, friendly. Both R.L. and L.S. indicated that they had an open-door policy with a number of their neighbours. This is especially significant because particular individuals from the neighbourhood came to figure prominently in the events leading up to at least a couple of the alleged incidents.
[4] For two years following their marriage, L.S. tried to get pregnant without success. Consultations with a gynaecologist and then fertility treatments were also unsuccessful. R.L. and L.S. then decided to adopt a child. The adoption process was very involved and required a tremendous commitment by the couple. Eventually, they were matched with a young boy, M., who was six years old. M. was introduced to R.L. and L.S. in late December of 2008. He moved in with the couple in February 2009 and his adoption was finalized in March 2009.
[5] After almost eight years of marriage and an adult lifestyle without children, R.L. and L.S. had to adjust to the addition of a six year old boy. Both R.L. and L.S. were thrilled to finally be parents. R.L. described M.’s arrival at their home as “the happiest day of our life”. He also said, “We got to make a difference”. L.S.’s enthusiasm with the adoption was equally palpable. Both these parents love their little boy. They embraced M with infinite affection. They registered him into as many age-appropriate activities as they could imagine, they showered him with gifts, and they shared him with their family and friends through various celebrations.
[6] But also as parents, R.L. and L.S. had to contend, almost immediately, with child discipline and behavioural management issues that were previously unknown issues and which caused the couple some stress.
[7] In the big picture, things were going well for this family. So much so that with the finalizing of M’s adoption, in March 2010, R.L. and L.S. began to explore the possibility of adopting another child to make their family complete. L.S. was said to wish for a baby girl so that her son would have a sister. Although that process was not concluded, by the summer of 2010 preparations to go through the kind of vetting process that adoptive parents go through before they are matched with a child were well underway and included the preparation of a nursery.
[8] Against what appeared to be a happy family situation, on the evidence before the court, it is difficult to pinpoint when this relationship began to crack and when this family began to fall apart. The first incident occurred soon after M’s arrival and against the backdrop of new and stressful parental demands. The second alleged incident was nested among a number of celebrations, vacations, and outward representations and expressions of fulfillment, especially by L.S.
[9] Matters took a dramatic turn in and around the 2010 Thanksgiving weekend with the third incident said to occur on the Friday before Thanksgiving weekend. Very shortly after that weekend what surfaced was L.S.’s developing friendship with C.F who was living in the immediate neighbourhood. R.L. ultimately left the matrimonial home on November 11, 2010. He signed a separation agreement, prepared by L.S. on November 19, 2010.
[10] The one issue that became a serious source of contention between the couple was the subject of custody and access of their son. Eventually, R.L. retained counsel to assist him with the matter. In response, L.S. tried to obtain an order for sole custody and a restraining order against R.L. She was unsuccessful. Then, on January 3, 2011, L.S. went to the police to report M.’s mistreatment at the hands of R.L. She returned to the police station within the hour of her first report, together with C.F., and reported four sexual assaults by R.L. on her. R.L. was brought in for questioning on January 4, 2011 and was charged with one incident of assault and two incidents of sexual assault.
(Full judgment continues verbatim in the same format.)
On Count 1, I have reasonable doubt that R.L. assaulted L.S. I find R.L. not guilty.
On Count 2, I believe R.L. that he did not commit a sexual assault against L.S. in January 2010. I find R.L. not guilty.
On Count 3, I believe R.L.’s testimony that he did not commit a sexual assault against L.S. I find R.L. not guilty.
Tzimas J.
Released: February 27, 2013
COURT FILE NO.: 1603/11
DATE: 2013-02-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
R.L.
REASONS FOR JUDGMENT
Tzimas, J.
Released: February 27, 2013