COURT FILE NO.: CR-12-0057
DATE: 2013-03-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
D. Kinsella for the Crown
- and -
Kenneth James Wood,
M. Bird for the Accused
Accused
HEARD: January 28, 29 and 30 , 2013,
at Thunder Bay, Ontario
WARNING
A NON PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
Mr. Justice F. Bruce Fitzpatrick
Oral Reasons For Judgment
[1] The evening of December 29 and the early morning hours of December 30, 2011, turned out to be a very bad time for S.M.. During that period, she had a relapse with regard to her difficulty with alcohol, interacted with some people that she had never met before, and ended the evening by being badly beaten. She also alleges she was sexually assaulted. She claims that the accused, Kenneth James Wood, a.k.a. Ken Keesick, assaulted, sexually assaulted, and unlawfully confined her.
[2] As a result of these accusations, Mr. Wood stands charged with 5 offences. Two of the charges are alleged breaches of probation orders. The other three represent the very serious charges of assault causing bodily harm, contrary to s. 267(b) of the Criminal Code of Canada, sexual assault contrary to s. 271(1), and unlawful confinement contrary to s. 279(2). Mr. Wood pleads not guilty to all five charges.
[3] The events relevant to this matter occurred in an apartment building located at 225 Cumming Street in Thunder Bay. This is a four floor multi-residential walk up building. Neither S.M. nor Mr. Wood reside in the building. However, Mr. Wood’s mother and uncle do reside there. It was in their apartment, on the third floor, unit 310, where S.M. claims she was assaulted, unlawfully confined, and sexually assaulted by Mr. Wood.
[4] In this case, the Court heard evidence from two police officers, S.M., and Mr. Chris Beardy, a resident, at the time, of 225 Cumming Street. On consent, a statement made by Mr. Wood on January 7, 2012, concerning the allegations against him, was also introduced into evidence. Also, a tape of a 911 call made by Mr. Wood’s mother, Winnifred Keesick at 3:31 a.m. on December 30, 2011, was admitted into evidence. Further, 225 Cumming has an extensive surveillance camera network in the building. The Court viewed a number of different surveillance videos which were taken at very specific time periods during the evening in question.
[5] From all of this evidence, there are facts that were accepted on consent by the parties, facts that were uncontroverted in my view, and matters that were disputed by the parties. The disposition of the charges against Mr. Wood comes down to a determination of those disputed facts based on the evidence at trial and whether that evidence indicates the Crown has proved all the elements of the various charges against Mr. Wood beyond a reasonable doubt. In making that determination, I will first outline the agreed facts and those facts whose truth and validity cannot be in my view, disputed on the evidence.
Agreed facts
[6] The parties agree that S.M. suffered a bodily injury sometime during the late hours of December 29, 2011, and the early morning hours of December 30, 2011. The orders and conditions of the probation orders relating to the two counts before the court concerning the alleged breach of probation by Mr. Wood were admitted. A tape of a 911 call made by Mr. Wood’s mother, Winnifred Keesick at 3:31 a.m. on December 30, 2011 was admitted. The voluntariness of the statement made by Mr. Wood to the police on January 7, 2012 was admitted by the defence.
[7] A 15 paragraph agreed statement of fact concerning the video security system installed at 225 Cumming Street was admitted into evidence. Videos taken from various cameras engaged in this system during two specific time frames were admitted as evidence. The first time frame for the series of videos entered, was for those taken between 1:15 am to 1:20 am December 30, 2011. The second time frame was 3:20 am to 4:10 am, December 30, 2011. Due to difficulties in transferring the videos from the original system to a format that could be disclosed to the defence and utilized at the trial, the original time and date stamps where not visible on the videos entered into evidence. However, the parties did agree on the time frames for the videos noted above.
[8] The security camera system is constantly activated, but only records events to tape based on motion detection. Once motion is detected, the system captures video taken 3 to 5 seconds before the motion is detected and continues to capture video for 15 seconds after motion is detected. Hereafter in this judgment, when I refer to the “video” I mean video tape evidence introduced at trial from the surveillance system at 225 Cumming.
Uncontroverted facts
[9] Based on all the evidence put forward in this trial, I find the following facts to be true.
[10] S.M. has had substance abuse problems in her life. She uses methodone to assist her in dealing with these problems. On the evening of December 29, 2011, she had a relapse with her long term problem with alcohol. That day, she had a fight with her long time common law partner. As a result, she started drinking. First, she was drinking at her home. She then walked to Superior Bowladrome, a bowling alley close to her home, to continue drinking. On the way to the bowling alley, she had refused a request by her husband and children to stop drinking and come home.
[11] She was intoxicated when she left Superior Bowladrome. She walked four blocks south to Newfie’s Pub, a well-known local tavern. She continued to drink while sitting at the bar at Newfie’s. She was intoxicated to the point that the bar tender cut her off. She went outside the bar for a cigarette. While standing outside she began to speak to a person whom she identified as an “aboriginal male” whom she did not know. Based on their conversation, she decided to accompany him and they left the area of Newfie’s.
[12] At around 1:00 am, December 30, 2011, the video shows S.M., by herself, standing beneath the south stairs on the ground floor of 225 Cumming.
[13] Later, at approximately 1:17 am, the video shows S.M and Mr. Wood walking up the south flights of stairs in 225 Cumming. Mr. Wood is shown walking in front of S.M. Mr. Wood was wearing a toque at this time and carrying a jacket. Walking up the stairs behind him, S.M was carrying her white jacket and had her wallet out of her purse and in her hand. Both Mr. Wood’s and S.M’s faces are clearly visible on the video and on screen capture still photos entered in to evidence.
[14] At approximately 1:18 am, the video shows S.M and Mr. Wood entering apartment 310. No other people are shown entering the apartment at that time.
[15] Only two people regularly live in apartment 310. They are Mr. Wood’s mother Winifred Keesick and Mr. Wood’s uncle, Elmer Wood.
[16] Joanne Fox and her mother Sylvia Fox, live in apartment 210, the apartment immediately below apartment 310. At around 3:00 am, Chris Beardy was visiting in apartment 210. He heard a disturbance in the apartment above 210. He heard someone screaming for help. Joanne Fox left apartment 210 first and went up to apartment 310. Mr. Beardy followed.
[17] Sometime after 3:20 am, the video shows Winifred Keesick, Elmer Wood and Joanne Fox going down the stairs in the stairwell closest to apartment 310.
[18] Sometime after 3:20 a.m., the video shows Mr. Wood exiting apartment 310. Mr. Beardy is shown holding open the door so Mr. Wood can access the stairwell where Mr. Wood is then seen going down the stairs.
[19] At 3:31 am, Winifred Keesick called 911 from apartment 210. During that call, Ms. Keesick asked for the police to be dispatched to apartment 310, 225 Cumming Street. She told the 911 dispatcher that Mr. Wood was in apartment 310 and: “My son’s up there ah he has ah woman up there in his uncle’s place and he’s fighting her in the washroom”.
[20] Between 3:20 am and 4:10 am, the video shows Mr. Wood on the basement floor of 225 Cumming, walking in the hallway. Eventually, he knocks on a door of an apartment. He enters the apartment. A woman then leaves the apartment and stands in the hallway making a pointing direction. Mr. Wood then leaves the apartment. The woman goes back in the apartment and Mr. Wood is shown walking down the hall in the opposite direction to the way pointed by the woman.
[21] Sometime between 3:20 am and 4:10 am, Mr. Wood is shown exiting 225 Cumming wearing a winter jacket, but not wearing a hat or toque.
[22] At 3:45 am, two police officers arrive at 225 Cumming and proceed to apartment 310. The video shows the officers with S.M. in the hallway.
[23] At the time S.M. is found by the police, she had extensive bruising on her face and the smell of alcohol on her breath. Her right eye was closed and had bruising beneath it. She had bruising around her mouth and scrapes on her face. A day later, she had two black eyes, a large bruise on her left breast and significant bruising on her upper lips.
The disputed matters.
[24] The essential disputed facts in this matter are who hurt S.M., and where did it happen. S.M. claims Mr. Wood did it while they were inside apartment 310. In his statement to police, Mr. Wood denies assaulting, sexually assaulting or unlawfully confining S.M. in apartment 310. He claims that she appeared to have been injured prior to the time she came in to 225 Cumming and prior to a time he had any contact with her.
[25] There were other disputed facts in this matter. S.M. claims she met Mr. Wood at Newfie’s that night and sat drinking with him for a period of time. Mr. Wood denies being inside of Newfie’s at any time, but admits he was outside of the bar smoking at some point later in the evening near closing time.
[26] Mr. Wood claims he had a long discussion with S.M. while she was sitting under the stairwell at 225 Cumming. She does not recall being under the stairs.
[27] Mr. Wood claims there were other men in apartment 310 at the time S.M. was there. He claims he did not know these men. S.M. did not testify about anybody else being in the apartment except Mr. Wood, his mother, his uncle and herself.
[28] In resolving the dispute concerning these facts, I am called upon to assess both the credibility and reliability of all the evidence given in this matter and to determine if the Crown has proved its case beyond a reasonable doubt.
[29] To begin, the pictures shown in the video entered into evidence were very clear. It was shot in colour, in good light and had a number of different camera angles.
[30] From the video, it is clear that at around 1:17 am S.M. followed Mr. Wood up the stairs at 225 Cumming. From the video, her face does not appear to be injured. She is walking up the stairs at a normal pace.
[31] From video taken later that night, some two hours later, S.M. is shown sitting in a hallway, holding her head, images which appear to me to indicate she was severely injured by that time.
[32] It does not seem reasonable to me to accept that S.M. ended up in apartment 310 by some coincidence. The video clearly shows her going up the stairs and then entering the apartment together with Mr. Wood. Mr. Wood explained that he first saw her in the apartment with 3 other men that he did not know. He also said that when he first saw her, she appeared to have been in an altercation.
[33] There was no video introduced of other men leaving the apartment. There was, however, video of Mr. Wood leaving the apartment at the time that his mother had gone downstairs to make the 911 call. This was corroborated by the evidence of Mr. Beardy who is both shown on the video as holding the door while Mr. Wood leaves the apartment and his testimony that he took Mr. Wood out of apartment 310 once he heard a woman screaming for help in that place.
[34] Mr. Wood advised the police in his statement that S.M. had threatened to have him charged with hurting her sometime prior to his leaving the building that evening. He claims she started doing this while they were having a long conversation while she was sitting under the stairs. Also, he said she had asked to do drugs with him while she was sitting under the stairs.
[35] Mr. Wood also disputes being inside Newfie’s bar with S.M. that evening. The police witnesses noted that there is a street video surveillance camera active in the area of Newfie’s. The officers reviewed the tapes for the time frame that it was expected that S.M. and Mr. Wood would be seen on the street outside Newfie’s. The officer saw no evidence from the tapes reviewed that S.M. and Mr. Wood were together outside Newfie’s. Mr. Beardy, however, testified he saw Mr. Wood standing outside Newfie’s sometime before the bar closed.
[36] According to S.M., once she went in to apartment 310 with Mr. Wood, she asked him for some “dope”. When he said he didn’t have any, she claims she tried to leave. At that point, she and Mr. Wood were standing near the door. S.M. claims Mr. Wood said “you are staying” and then punched her in the face. S.M. claims he punched her a few times in the face with his fist. She slid down the wall and began screaming, asking him to stop and asking why he was doing it. According to S.M., Mr. Wood was blocking the door.
[37] In an attempt to protect herself, S.M.went into bathroom. She had hoped to lock the door behind her. She claims Mr. Wood followed her in to the bathroom and because of his force of tackling her, they both fell to the floor. She claims at that point he put his hands down her stretchy jeans and under her underwear and inserted his finger in to her vagina while she was lying face down on the floor. She hit her head on the floor at that time and may have blacked out. She claims Mr. Wood turned her over and again inserted his finger in her vagina this time from the front.
[38] At this point she began to scream, “rape, rape”. Mr. Wood vehemently denies raping S.M. or touching her in any sexually inappropriate manner.
[39] According to S.M., once the altercation in the bathroom was under way, she heard a woman’s voice. It turned out to be Ms. Keesick. Winifred Keesick did not answer any of S.M’s pleas, but told Mr. Wood to “leave her alone”.
[40] At that point, S.M. blacked out and next recalls being in the hallway. She recalls a “nice native guy” speaking to her in the hallway, telling her the police were coming. Mr. Beardy confirmed speaking to S.M. while she was holding her head in her hands in the hallway. Mr. Beardy confirmed the nature of S.M.’s injuries.
[41] In this case, counsel agree that issues of credibility are clearly paramount. In assessing the evidence, counsel argue that I must consider the instructions of the Supreme Court of Canada in R.v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. I agree that an assessment of the evidence in this matter in accordance with the law as set out in W.(D) must be undertaken.
[42] In W.(D.) the Court stated at paras. 27-28:
“The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); approved by R. v. Morin, supra, at p. 207.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
[43] Regarding the first step in the W.(D.) formula, I must not consider the accused’s version of events in isolation, as if the Crown has led no evidence. The evidence that supports the accused must be assessed in the context of all the evidence.
[44] The second step should be approached as set out by Justice Binnie, speaking for a unanimous Court in R. v. S.(J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 10 – 13:
The precise formulation of the W.(D.) questions has been criticized …
As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.
… In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested in additional instructions:
I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p.155]
In short, the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. [Italics of Binnie J., under-lining added]”
[45] W.(D.) makes it clear that a criminal trial is not a credibility contest where the trier of fact must choose whether to believe one side or the other. At para. 26 in W.(D.), Cory J. stated:
“It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown’s evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.” [Emphasis added]
[46] The third step of the W. (D.) analysis is required in the event the totality of the evidence for the defence is not believed, which then leaves the evidence to be assessed on whether or not the Crown has proved its case beyond a reasonable doubt.
Analysis and Findings regarding disputed facts
[47] Counsel for the defence urges that the W.(D). analysis must be applied to the testimony of all witness in this matter. I agree that it is open to me to believe some, all or none of the testimony of the various witness.
[48] Mr. Wood’s description of the events of that evening was confusing. It is clear from his statement that he admits being in the apartment at some point in the evening with S.M. I believe his statement that he was not inside Newfie’s bar earlier in the evening with S.M., but I do not believe he first met S.M. when she was already in apartment 310 with 3 other men. I believe Mr. Wood’s statement that he did not consume alcohol during the evening in question. However, I do not believe his statement to the effect that he did not assault and unlawfully confine S.M. However, I do believe Mr. Wood when he testified he did not sexually assault S.M.
[49] I do not believe Mr. Wood’s denial of the assault and unlawful confinement both because of the video evidence, other evidence from Crown witnesses, and because a number of aspects of Mr. Wood’s statement relating to the assault and the unlawful confinement were not capable of belief.
[50] The first aspect of his statement that didn’t make any sense to me was the allegation that Mr. Wood first met S.M. in his mother’s apartment, and she was there with 3 other men he didn’t know. He suggested that she had been let in to the apartment by these unknown men and his statement suggests she was there before he got there the first time during the night in question. This is clearly contrary to the video evidence that shows Mr. Wood going up to the apartment with S.M. at around 1:17 am.
[51] Also, it makes no sense to me why Mr. Wood would continue to hang around in his mother’s very small apartment with 3 unknown men, and an unknown woman so late in the evening, particularly when the woman allegedly started to threaten him with police charges, for injuries that, according to Mr. Wood, she had already sustained. In his statement, Mr. Wood indicated he told S.M., he had a criminal record. If in fact this were true, then once the alleged threats started, it would make no sense for Mr. Wood to keep himself in the presence of someone who clearly meant to cause him further grief.
[52] As to the timing of S.M.’s injuries, based on the video evidence showing her going up the stairs behind Mr. Wood at around 1:17 am, her face shows no sign of the injuries that she clearly suffered, and were observed by Mr. Beardy, and the police, and were evidenced by photos admitted into evidence at this trial. I accept S.M.’s evidence that she did not suffer the injuries at issue anywhere else, other than while she was in apartment 310 that evening.
[53] While Mr. Wood’s account of the evening was confused at best, he did indicate he was in the apartment with S.M., and that a commotion occurred and Ms. Keesick got out of bed to see what was happening.
[54] This confirms S.M.’s testimony that Ms. Keesick told Mr. Wood “to leave her alone” and that she went to call the police.
[55] Ms. Keesick’s 911 call clearly identifies that Mr. Wood and S.M. were in the bathroom of her apartment and some altercation was occurring. Mr. Wood is shown on the video leaving the apartment shortly before the 911 call, but after Ms. Keesick is shown leaving apartment 310 and going down the stairs.
[56] I accept and believe S.M.’s testimony that Mr. Wood assaulted her by punching her in the face and tackling her in the bathroom. I also accept her testimony that she was unlawfully confined by Mr. Wood both by him telling her she couldn’t leave and then by him continuing his assault in the bathroom. Mr. Beardy’s evidence that he came to remove Mr. Wood from the apartment, and that no one else was there, places Mr. Wood in the apartment at the material time and confirms S.M.’s testimony that an altercation had taken place between herself and Mr. Wood. Mr. Beardy’s testimony in that regard is also evidence by which I have assessed the reliability of Mr. Wood’s statement to the police that other unknown men were in the apartment with S.M. at a time when the assault is alleged to have occurred. I do not believe this aspect of Mr. Wood’s statement and find there was nobody else in the apartment at the time the assault occurred other than Mr. Wood, S.M., Ms. Keesick and Elmer Wood. None of the evidence suggested either Ms. Keesick or Elmer Wood committed the offences at issue.
[57] Also, I am of the view that Mr. Wood’s conduct of going downstairs into the basement and the interaction shown on the video evidence with a woman who occupied a basement apartment, is post offence circumstantial evidence. For me, this video evidence is indicative that his blanket denial of wrongdoing cannot be accepted.
[58] From the video evidence from the basement, it appears to me, Mr. Wood was seeking to hide from the police and sought to do so in the apartment of the woman he is shown to have entered at some time after he leaves apartment 310. I find that her coming back out in to the hall and pointing, demonstrates her telling him to get out of her apartment, and not in a friendly way. At that time of the night this response was understandable. His actions cannot be interpreted as anything other than trying to flee from the scene of the crime and hide. In considering this behaviour, I have taken into account that Mr. Wood indicated in his statement to police that he was simply considering going home once it became clear that S.M. was threatening him with criminal charges. Going to the basement and then seeking to be let in to another apartment, indicates to me an intention to flee and circumstantial evidence of guilt.
[59] In this regard, I am guided by the decision of R v. White, 2011 SCC 13, [2011] 1 S.C.R. 433. In that case, at paras. 17 and 22, Justice Rothstein states:
It has long been accepted that actions taken by an accused person after a crime has been committed can, under certain circumstances, provide circumstantial evidence of their culpability for that crime. Examples of such actions include flight, the destruction of evidence, or the fabrication of lies…
The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23). As Major J. noted in White (1998)"[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role" (para. 21).
[60] In my view, this particular evidence is in the nature of corroborative evidence that Mr. Wood did commit criminal acts in respect of S.M. during the evening in question.
[61] Consequently, based on all the evidence indicated above, I find that the Crown has proven beyond a reasonable doubt that Mr. Wood did both assault and unlawfully confine S.M..
[62] There is the matter of the charge against Mr. Wood alleging a breach of his undertaking to refrain from the consumption of alcohol. In this regard, the only evidence before the Court was that of S.M. to the effect that she met Mr. Wood in Newfie’s bar and that he was drinking in the bar with her. I do not accept S.M.’s evidence in this regard. She had never met Mr. Wood prior to that evening. There were other patrons in the bar at the time. While the video evidence makes it clear that S.M. and Mr. Wood were together at 225, there was no corroborative evidence that they were together at Newfie’s. Mr. Beardy testified he saw Mr. Wood outside the bar, but not inside the bar. I am left with a reasonable doubt that Mr. Wood was consuming alcohol or illicit drugs on the evening in question.
[63] I also do not accept that the Crown has proven beyond a reasonable doubt that the assault in the bathroom constituted a sexual assault.
[64] In my view, there are some issues with S.M.’s testimony regarding the events in the bathroom. She is shown going into the apartment at around 1:17 a.m. She is then shown in the hallway about 2 hours later. However, listening to her testimony, in chief, one got the impression that once she and Mr. Wood walked into the apartment, the sequence leading to her being assaulted began immediately. Clearly, that could not have occurred immediately given the passage of time from when she went in until the time Ms. Keesick made the 911 call and Mr. Beardy said he came to the apartment at around 3:30 that evening. While I have no doubt that S.M. was assaulted and unlawfully confined by Mr. Wood, the alleged sexual assault occurred at the end of the sequence of the assault. In view, based on listening to her testimony, S.M.’s appreciation of the events was impacted by her first having been assaulted, and then tackled and then having her head hit on the floor by Mr. Wood. S.M. testified that she was assaulted, sexually assaulted and confined by Mr. Wood. She denied that she had suffered any bodily injury prior to going in to the apartment.
[65] However, she did admit she hit her head while she was tackled in the bathroom. Prior to this time, the assaults had consisted of punches to the face, which, while traumatic in themselves, did not cause S.M. to lose consciousness. She did testify that she blacked out in the bathroom and then next remembers being in the hallway.
[66] From her evidence, I have a reasonable doubt that the sexual assault occurred. I accept what she said concerning the assault. The sexual assault is another matter because of her own evidence about blacking out and the lack of any context evidence given by either herself or others. From her own evidence, she was struggling with Mr. Wood by this point in the process. Given her own admitted state of insobriety, and her lack of memory due to her head hitting the floor of the bathroom, I am not persuaded beyond a reasonable doubt that Mr. Wood is guilty of this particular offence.
Conclusion
[67] Accordingly, I find that in respect of count 2 of the indictment before the Court, Kenneth James Wood, on or about the 30^th^ day of December 2011, at the City of Thunder Bay did commit an assault on S.M. causing bodily harm to her contrary to s. 267(b) of the Criminal Code. There shall be a finding of guilt in respect of that count.
[68] Also, I find that in respect of count 3 of the indictment, the Crown has not proved beyond a reasonable doubt that Kenneth James Wood committed a sexual assault on S.M. and a finding of not guilty will be registered in respect of count 3.
[69] With respect to count 4 of the indictment, the Crown has not proven beyond a reasonable doubt that Mr. Wood breached his terms of probation and accordingly a finding of not guilty will be registered in respect to this count.
[70] Regarding count 5, I find that Kenneth James Wood, on or about the 30^th^ day of December 2011, at the City of Thunder Bay did without lawful authority physically restrain S.M. contrary to s. 279(2) of the Criminal Code. There shall be a finding of guilt in respect of that count.
[71] Regarding count 6, as I have found that Mr. Wood committed an assault and unlawfully confined S.M., it follows that he failed to keep the peace and be of good behaviour. Accordingly there shall be a finding of guilt in respect of count 6.
[72] I understand the Crown is adjourning counts 1, 7 and 8 to be disposed of at some later date.
“original signed by”
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: March 4, 2013
COURT FILE NO.: CR-12-0057
DATE: 2013-03-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and –
Kenneth James Wood,
Accused
REASONS FOR JUDGMENT
Fitzpatrick J.
Released: March 4, 2013
/mls