COURT FILE NO.: 831/12

DATE: 20140327

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Mr. A. Shatto, for the Crown

- and -

J.E.

Mr. H. Thompson, for the Defendant

Defendant

HEARD: February 25, 26, 27, 28, March 21 and 27, 2014

REASONS FOR JUDGMENT

Conlan J.

INTRODUCTION

[1] M.J.K. and J.E. had a tumultuous relationship.

[2] M.J.K. claims that she was, repeatedly and over a prolonged period of time, physically abused by her former partner, J.E., the accused. The parties have a young child together.

[3] Mr. J.E. stands charged with 11 criminal offences. He was tried before me, without a jury, in the Superior Court of Justice at Walkerton on February 25, 26 (very briefly spoken to on the record as the accused was not in attendance because of bad winter weather and closed roads), 27 (the same as the 26th), 28 and March 21 and 27, 2014.

[4] J.E. pleaded not guilty to every charge.

[5] A summary of the charges against Mr. E. are as follows. Note that, at the end of the Crown’s case at trial and without objection from the Defence, counts 1 and 4 were amended to widen the alleged offence periods. Also note that, at the end of the Crown’s case at trial and at the request of the Crown, made quite responsibly by Mr. Shatto I might add, a finding of not guilty was registered on count 8, and that charge was dismissed. There was no evidence of any alleged threat made by J.E. on or about February 25, 2012. Finally, in closing submissions, the Crown invited the Court to dismiss the choking charges in that there is no evidence that the alleged conduct was done for the purpose of committing an indictable offence. Instead, the Crown suggested that the Court consider findings of guilt on the lesser and included offence of assault.

Count 1 – between January 1, 2004 and December 31, 2005, in London, attempt to choke MJK, contrary to section 246(a) of the Criminal Code of Canada (“CCC”).

Count 2 – in 2006 in Kincardine, assault MJK, contrary to section 266 CCC.

Count 3 – in 2006 in Kincardine, attempt to choke MJK, contrary to section 246(a) CCC.

Count 4 – between January 1, 2004 and December 31, 2005, in London, assault MJK, contrary to section 266 CCC.

Count 5 – on or about January 11, 2012, utter a threat to cause death to MJK, contrary to section 264.1(1)(a) CCC.

Count 6 – on or about February 5, 2012, assault MJK, contrary to section 266 CCC.

Count 7 – on or about February 24, 2012, assault MJK, contrary to section 266 CCC.

Count 8 – on or about February 25, 2012, utter a threat to cause bodily harm to MJK, contrary to section 264.1(1)(a) CCC.

Count 9 – between November 2011 and February 2012, criminal harassment (repeated following) of MJK, contrary to section 264(2)(a) CCC.

Count 10 – on or about December 6, 2011, utter a threat to cause serious bodily harm to MJK, contrary to section 264.1(1)(a) CCC.

Count 11 – between November 2011 and February 2012, criminal harassment (repeated communication with) MJK, contrary to section 264(2)(b) CCC.

THE OFFENCES

[6] Counts 1 and 3 allege that J.E., with intent to enable himself to commit an unspecified indictable offence, did attempt to choke M.J.K. For me to find J.E. guilty of each of those offences, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

1. that J.E. attempted to choke M.J.K.; and
2. that J.E. did so with intent to enable himself to commit an indictable offence against M.J.K.

[7] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. not guilty of the offence.

[8] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. guilty of the offence.

[9] Counts 2, 4, 6 and 7 allege that J.E. assaulted M.J.K. For me to find J.E. guilty of assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that J.E. intentionally applied force to M.J.K.;

ii. that M.J.K. did not consent to the force that J.E. intentionally applied; and

iii. that J.E. knew that M.J.K. did not consent to the force that J.E. intentionally applied.

[10] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. not guilty of assault.

[11] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. guilty of assault.

[12] Counts 5, 8 and 10 allege that J.E. threatened M.J.K. For me to find J.E. guilty of threatening, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

1. that J.E. made a threat;
2. that the threat was to cause death to M.J.K. (count 5); or bodily harm to M.J.K. (count 8); or serious bodily harm to M.J.K. (count 10); and
3. that J.E. made the threat knowingly.

[13] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. not guilty of threatening.

[14] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. guilty of threatening.

[15] Counts 9 and 11 allege that J.E. criminally harassed M.J.K. For me to find J.E. guilty of criminal harassment, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that J.E. repeatedly followed M.J.K. from place to place (count 9); or repeatedly communicated with M.J.K. (count 11);

ii. that J.E. had no lawful authority to do what he did;

iii. that J.E.’s conduct harassed M.J.K.;

iv. that J.E. knew that his conduct harassed M.J.K.;

v. that J.E.’s conduct caused M.J.K. to fear for her safety; and

vi. that M.J.K.’s fear was reasonable in the circumstances.

[16] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. not guilty of criminal harassment.

[17] If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find J.E. guilty of criminal harassment.

THE EVIDENCE AT TRIAL

Constable Anthea Veal (Ontario Provincial Police), for the Crown

[18] Constable Veal (“Veal”) is the officer in charge of this case. She has been a police officer since April 2010.

[19] On 12 December 2011, she received a complaint from Daniel Pare, a co-worker of M.J.K. Mr. Pare was concerned that M.J.K. was in a distressing domestic situation.

[20] The next day, Veal spoke with M.J.K. on the telephone. M.J.K. declined to give a formal statement. M.J.K. disclosed to the officer no concern for her own safety or that of her child. Although Mr. Pare had complained of ongoing physical abuse of M.J.K., Veal simply asked M.J.K. on the telephone whether she had been subjected to physical abuse. M.J.K. said that something like that had happened in the past. M.J.K. also disclosed to the officer that the accused had followed her home in the past.

[21] In the opinion of Veal, what M.J.K. had disclosed to the officer was consistent with what Mr. Pare had complained of.

[22] On 24 February 2012, after her colleague, Constable Richardson (“Richardson”), received a complaint from M.J.K.’s cousin, Veal and Richardson attended at M.J.K.’s residence near Tiverton, Ontario. M.J.K. gave an audio-video statement to the police at the detachment. Charges were laid against the accused.

L.G., for the Crown

[23] Ms. L.G. is the cousin of M.J.K.

[24] The weekend prior to 24 February 2012, Ms. L.G. was at the home of M.J.K. The accused and M.J.K. were separated at that time, although J.E. came over to the house a few times that weekend.

[25] At about 6:00 p.m. on February 24, Ms. L.G. received a telephone call from M.J.K. She was very upset and said that the accused had been over to her house repeatedly in the last hour or so. M.J.K. was also upset about the accused having accessed her computer. And M.J.K. complained about the house that she was living in and financial problems. During the telephone conversation, Ms. L.G. heard J.E. ask M.J.K. who she was talking to. Ms. L.G. telephoned the police because she was concerned about her cousin’s safety, though she was not concerned about any physical abuse. Ms. L.G. then telephoned M.J.K. and told her that she had called the police.

[26] In cross-examination, Ms. L.G. agreed that she likely did not say anything to her cousin on the telephone about accessing any employment assistance plan.

J.A., for the Crown

[27] Mr. J.A. knows M.J.K. through his partner, W.L.. He met M.J.K. and the accused about ten years ago, in London, Ontario.

[28] On January 17, 2012, Mr. J.A. telephoned the police. He was concerned for the safety of M.J.K., who had come to the home of Mr. J.A. and Ms. W.L., left her child with Mr. J.A. and Ms. W.L. and went to register at a women’s shelter.

[29] Mr. J.A. had seen some text messages that M.J.K. had forwarded to Ms. W.L.. The messages were from J.E. One of the messages said that the accused was thinking of going to M.J.K.’s home with a gun.

W.L., for the Crown

[30] Ms. W.L. is friends with M.J.K. They met in London, Ontario and have known each other for about ten years.

[31] In December 2011, Ms. W.L. and M.J.K. went on a Christmas shopping trip together in the United States. During that trip, J.E. kept sending text messages to M.J.K. Ms. W.L. saw some of those messages; they were controlling in nature. M.J.K. replied to some of the messages from J.E. during that shopping trip.

[32] On January 17, 2012, M.J.K. left her child with Ms. W.L. and Mr. J.A. and went to register at a women’s shelter. While M.J.K. was at the shelter to register, the accused came to the door of Ms. W.L.’s house. Ms. W.L. never opened the door. The accused looked angry and mouthed “fucking bitch”.

[33] Both Ms. W.L. and Mr. J.A. gave statements to the police.

[34] Ms. W.L. never personally witnessed any injuries to M.J.K. or any abuse by J.E. towards M.J.K. or any threats from the accused to M.J.K. The impression that Ms. W.L. had from speaking with M.J.K. was that the accused and M.J.K. were “nose to nose” on a daily basis, with J.E. putting his hands on M.J.K. and threatening her.

[35] Ms. W.L. advised M.J.K., frequently, to contact the police.

[36] M.J.K. spoke with Ms. W.L. about M.J.K.’s financial problems and difficulties with her house.

[37] There were two or three times that Ms. W.L. saw what she believed to be J.E.’s motor vehicle drive by Ms. W.L.’s home while M.J.K. and her vehicle were there. One time, Ms. W.L. saw the accused’s vehicle parked at the corner of the street outside Ms. W.L.’s home.

[38] In cross-examination, Ms. W.L. acknowledged that neither she nor Mr. J.A. ever liked the accused.

M.J.K., the alleged victim, for the Crown

[39] The complainant is 31 years old. She lives in Kincardine, Ontario. She has worked at Bruce Power since 2004. She and her ex-partner, the accused, share a daughter who was born in […] 2010.

[40] Both having had completed a police foundations program of education, the parties met at a store in London, Ontario in 2003. They were working in the loss prevention department of the store. The parties lived together at two different locations in London; then they lived with the parents of the accused in Tiverton, Ontario for a few months; then they moved to a house in Hanover, Ontario; then they moved back to the residence of J.E.’s parents while the rural home next door was being readied for purchase by the parties. By the time that possession was taken of the home next to that of J.E.’s folks, the parties had separated. Thus, just the child and the complainant moved in to that home in Tiverton.

[41] The parties separated in October 2011. J.E. moved in with his parents, while M.J.K. and the child stayed at the home next door. Shortly after the separation, the complainant began to keep a journal, as suggested by her counsellor. The journal was kept between December 9, 2011 and February 14, 2012. The parties also saw a mediator in Owen Sound.

Examination-in-Chief

[42] The following are brief synopses of the various incidents alleged by the complainant and testified to during her direct examination by the Crown.

[43] First, at their residence on Oxford Street in London in early 2004, J.E. dragged M.J.K. off of the bed by grabbing her right arm and pinned her on the ground. M.J.K. was not injured. What precipitated the matter was an argument about J.E.’s alleged infidelity.

[44] Second, later in 2004, at the same location, there was another argument about the same subject matter. The accused followed the complainant to the bathroom. He pushed her against the wall with his right hand around her throat. She could not breathe for several seconds. She was not injured.

[45] Third, although not the substance of any charge against the accused before this Court, M.J.K. described an incident of physical violence during a trip that the parties took to Cuba in 2005. J.E. was intoxicated, which was a rare occasion as he is generally a non-drinker. During an argument, the accused punched the complainant in her lower back, causing an injury. He also threatened her.

[46] Fourth, at the home of the parents of the accused in Tiverton, likely in the Fall of 2006, there was an argument about the accused not having done the laundry. He pinned M.J.K. down by resting his knees on her biceps. She was lying on her back. To stop the pain, she bit him. Although she was yelling, his parents (upstairs in their home) did nothing. She was not injured. But the physical violence did not end there. He followed her to the staircase and pinned her against the wall with his right hand around her throat. She screamed but, again, his parents did not respond. She could not breathe for some seconds. She had red marks on her neck which she immediately showed to the father of the accused. J.E. and his father then had some fisticuffs, causing a cut to the father’s nose. At her request, the father of the accused drove her back to London.

[47] Fifth, on December 6, 2011, at their home in Tiverton, the accused barged in to the home and in to the bedroom. He threatened the complainant by saying “I will bash your head in. And you’re lucky you’re holding her (the child) because I’d make sure you never got up”. He was “nose to nose” with her, as she described in her evidence at trial. She took that threat seriously; it caused her to be fearful for her safety.

[48] According to the complainant, the accused often came in to the home, after separation, without invitation or permission and at times while she was still asleep. Further, between November 2011 and February 2012, M.J.K. received numerous text messages per day from J.E. More than 1300 messages total. Despite her telling him, numerous times, to stop, he persisted. Relevant to the criminal harassment charge, however, the complainant was adamant in her testimony at trial that those messages did not cause her to fear for her safety.

[49] Eventually, after the accused was arrested in late February 2012, the police took photos of M.J.K.’s cell phone, as proof of those text messages from the accused (Exhibits 2 and 3 at trial). Not all of the messages are shown, however, and none of her replies are shown.

[50] Unbeknownst to the complainant, after the December 6 incident, her co-worker contacted the police who, in turn, contacted M.J.K. She was unwilling to make any statement against the accused as she feared his reaction. He was eligible for a pardon for criminal convictions in London some years earlier, and she was concerned that he would go berserk (my word) if he found out that she ruined his chance to get that pardon.

[51] Sixth, on January 11, 2012, after a mediation session in Owen Sound, the parties were driving home when, angered by what he thought was her smiling, J.E. threatened M.J.K. by saying “if you think it is funny, I will shove your teeth down your throat”. She took that threat seriously.

[52] On January 17, 2012, M.J.K. and the child went to a women’s shelter. The complainant feared the accused.

[53] Seventh, on February 5, 2012, at the home in Tiverton next to that of J.E.’s parents, in the kitchen, the accused grabbed M.J.K.’s right arm and twisted it, causing a bruise to her right bicep.

[54] About one week later, at the suggestion of Mr. Pare, M.J.K. took a photo of that bruise – Exhibit 1 at trial.

[55] Eighth, on February 24, 2012, at the home in Tiverton next to that of J.E.’s parents, J.E. used his right index finger to poke M.J.K. hard and repeatedly in the middle of her chest. The parties were “nose to nose” as he demanded to know who was dropping her off at home after work.

[56] Early evening on the 24th of February, Ms. L.G. (the complainant’s cousin) telephoned M.J.K. The complainant vented about the accused. Unbeknownst to M.J.K., Ms. L.G. contacted the police. This time, M.J.K. gave a statement to the police.

Cross-Examination

[57] M.J.K. denies ever having initiated any physical aggression towards the accused. And she denies ever having shoved J.E.’s mother, particularly regarding the alleged incident that occurred in the Fall of 2006 at the home of J.E.’s parents in Tiverton.

[58] Regarding the first alleged incident at Oxford Street in London, M.J.K. is not sure what the argument was about (perhaps not about J.E.’s alleged infidelity).

[59] M.J.K. acknowledged in cross-examination that her journal is inconsistent with her testimony at trial regarding the two alleged incidents that occurred at Oxford Street in London. Specifically, there are differences in terms of (i) which incident occurred first and (ii) whether the pinning on the ground and the choking happened in the same year and (iii) whether the choking and a dispute about take-out food were the same or different matters.

[60] In London, in 2008, J.E. was sentenced to 90 days in jail for three sex assaults against female co-workers. Although there had been physical violence by the accused against M.J.K., the complainant wrote a character letter for J.E., at his request. M.J.K. thought that J.E. was charged with hunting too close to conservation property. She found out about the sex assaults in the Courtroom when the Judge was speaking at the time of sentencing.

[61] When the parties lived in Hanover, after a family member had contacted the police, M.J.K. lied to the officer by denying any physical violence committed by J.E. against her. And, although she felt that the accused was going to kill her, M.J.K. lied to counsellor Bonnie Walraven when she told the counsellor that there had been no physical violence.

[62] In December 2011, M.J.K. did not tell the police (Officer Veal) the truth when she said that she was not concerned about her safety. Also in December 2011, M.J.K. did not tell the Children’s Aid Society (Ms. Legge) the truth when she said that there had been no physical violence between the parties in the past.

[63] In January 2012, during a mediation session, J.E. got up from his chair and cocked his fist at M.J.K., in front of the mediator. The mediator did nothing.

[64] After their separation in October 2011, there was no sexual activity between the parties. In January or February 2012, however, J.E. came over to the Tiverton home, at M.J.K.’s request. They kissed.

[65] M.J.K. acknowledged in cross-examination that the poking to her chest by the accused did not happen before she went to the women’s shelter. Thus, she was wrong when she testified in direct examination that the poking to her chest was a reason why she went to the shelter on January 17, 2012. The main reason why she went to the shelter was because she needed some space from J.E. She found him to be “suffocating”.

[66] In early February 2012, at work in the janitor’s closet, as she reached up to get something while wearing a t-shirt, her co-worker noticed the bruise on her arm. He asked M.J.K. whether J.E. had done that to her, and she answered in the affirmative. Then the co-worker, Mr. Pare, told her to tell the police. Police involvement was the last thing that M.J.K. wanted.

[67] During the telephone discussion with her cousin on February 24, 2012, M.J.K. did not disclose that J.E. had just poked her in the chest. And, on that date, the complainant was not going to personally contact the police. Further, contrary to the evidence of Ms. L.G., M.J.K. testified that her cousin suggested that M.J.K. contact her employee assistance program.

[68] In her statement to the police on February 24, M.J.K. said that, during her telephone discussion with her cousin on that date, she told Ms. L.G. that J.E. had Ms. L.G.’s keys. M.J.K. also testified, however, that Ms. L.G. already knew, before the 24th of February, that J.E. had the keys.

[69] The poking of her chest by the accused on February 24 left red marks on M.J.K., however, she did not show those marks to the police.

[70] M.J.K.’s intention in keeping the text messages sent to her by the accused had nothing to do with using them in any family or criminal Court proceeding. She wanted to be able to confront the accused with what he was saying to her.

[71] After his arrest, J.E. saw his daughter less often than before the arrest. M.J.K. supported continued contact between the accused and the child. According to the complainant, J.E. is “fabulous” with his daughter.

[72] M.J.K. denies that she was financially better off after J.E. was charged with the offences before the Court.

Detective Constable Melvin Joa (Ontario Provincial Police), for the Crown

[73] An experienced police officer with nearly twenty years on the job, Detective Joa’s only material involvement in the case was that he arrested the accused on February 25, 2012 and administered to J.E. the appropriate rights and cautions. The accused was very polite and very cooperative.

Sergeant Paul Richardson (Ontario Provincial Police), for the Crown

[74] With 13 years of experience as a police officer, Sgt. Richardson’s only material involvement in the case was that he took a statement from J.E. after the arrest on February 25, 2012. The statement was audio and video recorded (Exhibit 4 at trial), and a transcript was prepared. The statement was played at trial without the need for a voir dire as the Defence indicated that there were no issues regarding its voluntariness and no Charter issues. Having watched and listened to the statement, I am satisfied, beyond a reasonable doubt, that it was given by J.E. voluntarily.

[75] Nobody could accuse J.E. of being a humble or a modest man during the police interview. And he is certainly not a stranger to profanity. Nevertheless, he is not on trial for a lack of gentlemanly conduct, and the statement is not inculpatory in any way. Specifically, J.E. spoke of an incident of physical contact between the parties years ago in London but initiated by M.J.K. He spoke of possibly pushing M.J.K. up against a wall at his parents’ residence but only after she shoved his mother against the wall. He accused the complainant of being violent with him in the past. J.E. theorizes during the interview that the charges are the complainant’s way of trying to get sole custody of their child and moving back to London.

[76] J.E. was animated, excited and demonstrative throughout the interview. He was extremely talkative. He comes across as someone with an enormous ego who thinks of himself as a cross between the fictional Don Juan and the Canadian hero Louis Cyr. That is my impression of J.E.’s self-perception.

Constable Bruce McBlane (Ontario Provincial Police), for the Defence

[77] With almost 28 years of experience as a police officer, on January 17, 2012, Constable McBlane received a complaint from Mr. J.A., who reported that the accused was possibly suicidal.

[78] That same evening, Constable McBlane spoke on the telephone with M.J.K. She told the officer that J.E. was an aggressive individual who had threatened her in the past and had threatened to commit suicide in the past, however, the officer concluded from what he was told by M.J.K. that the threats against her and the threats of suicide had stopped in early November 2011.

[79] The officer, almost immediately, went to the residence of J.E.’s parents to speak with the accused and to check on his well-being. The accused seemed quite normal and not suicidal at all.

[80] M.J.K. failed to attend at a follow-up interview that Constable McBlane had arranged for the purpose of preparing a Domestic Violence Supplementary Report.

Nancy Macivor, for the Defence

[81] Ms. Macivor is a lawyer who specializes in collaborative family law and mediation. She assisted the parties with closed mediation in late 2011. No agreement was reached.

[82] A legal issue arose during the testimony of Ms. Macivor as to whether she should have to answer questions about the mediation and the admissibility of such evidence in the face of potential settlement privilege. For written Reasons delivered at Court on March 21, 2014, I ruled that the evidence of Ms. Macivor was indeed admissible.

[83] During the last of three or four mediation sessions, J.E. appeared to be very angry. He was shouting. After about twenty minutes, he calmed down. Ms. Macivor was, at no time, fearful of the accused; nor did she think that the complainant was. Contrary to the testimony at trial of M.J.K., Ms. Macivor’s evidence was that, to her recollection, the accused did not stand up out of his chair. He did not move across the table. He did not cock his fist at M.J.K. If he had done those things, Ms. Macivor testified that she would recall that type of behaviour.

[84] While Ms. Macivor assisted the parties with mediation, M.J.K. never expressed to the mediator any safety concerns for herself vis a vis the accused.

[85] In my view, the evidence of Ms. Macivor was credible and reliable and fairly damaging to the case for the Crown.

Connie Sweiger, for the Defence

[86] A retired probation officer for many years, Ms. Sweiger is the person who prepared the pre-sentence report for J.E. regarding the sexual assault matters that he was found guilty of in London.

[87] For the purposes of preparing the report, Ms. Sweiger spoke on the telephone with M.J.K. Although Ms. Sweiger did not tell M.J.K. what charges the findings of guilt against J.E. pertained to (because that would have been a breach of confidentiality), Ms. Sweiger has no doubt that M.J.K. knew what the charges were about. For example, if M.J.K. had been ignorant of the nature of the charges, there would have been no reason for her to comment to Ms. Sweiger about J.E.’s flirtatiousness, which is reflected in the report. Further, there would have been no reason for M.J.K. to tell the probation officer that J.E. had never been abusive to her, which she did say. In addition, if M.J.K. had been ignorant of the nature of the charges, Ms. Sweiger would have noted that in the report, which she did not.

[88] Certainly, Ms. Sweiger never had the impression from speaking with M.J.K. that the latter thought that the charge or charges against J.E. related to hunting too close to conservation property.

[89] In my view, the evidence of Ms. Sweiger was credible and reliable and fairly damaging to the case for the Crown.

J.E.1, for the Defence

[90] Ms. J.E.1 is the mother of the accused.

[91] She described an incident at her home near Tiverton which occurred not long after the parties’ child was born. M.J.K. was angry about the accused being out hunting for too long. While J.E.1 was holding the child, M.J.K. poked the accused with her finger and elbowed him in the chest.

[92] Regarding the incident described by M.J.K. when the accused allegedly choked her near the staircase in the basement of the home of J.E.1 and her husband, Ms. J.E.1 testified that M.J.K., with her shoulder, knocked Ms. J.E.1 in to the wall as M.J.K. was angry and was walking by to go upstairs.

[93] I pause here to note that I place very little weight on the evidence of Ms. J.E.1. She struck me as a sincere person, however, her bias in favour of her son, the accused, was obvious in her testimony. For example, in cross-examination, Ms. J.E.1 testified that, during the incident described immediately above, she saw M.J.K. strike the accused with her knee, yet J.E. remained calm and was not even mad. I find that difficult to comprehend. Further, the evidence of Ms. J.E.1 is inconsistent with that of her son who admitted in his statement to Sgt. Richardson that he might have put his hands on M.J.K. after the physical contact between her and his mother. Ms. J.E. testified that she did not see her son touch M.J.K.

[94] Ms. J.E.1 was doing her best to be a forthright witness, however, her evidence was coloured by her natural bias in favour of her child.

J.E., the accused

[95] J.E. is presumed to be innocent of the charges and has no burden to prove anything. He did not testify at trial. But, as indicated above when I dealt with the evidence of Sgt. Richardson, J.E.’s statement to the police after his arrest was played at trial and marked an Exhibit as part of the Crown’s case. During that police interview, J.E. denied any criminal wrongdoing. The following instruction applies to each and every charge against the accused.

[96] If I accept what J.E. said in his police statement that he did not commit any offence, then I must find him not guilty. If I do not necessarily accept what he said but it leaves me with a reasonable doubt about his guilt, then I must find him not guilty. If what J.E. said is neither accepted by me nor leaves me with a reasonable doubt, then I must find him not guilty unless the evidence as a whole at trial which I do accept convinces me of J.E.’s guilt beyond a reasonable doubt.

[97] I pause here to note that I disagree with the Crown’s submission that portions of J.E.’s police statement may be considered to be inculpatory. The statement does confirm that the parties had a tumultuous and volatile relationship which, at times, included physical aggression. But the admissions of physical contact by J.E. towards M.J.K. are not capable of being considered criminal conduct. Those limited instances were done in self-defence or, in the one potential case, in defence of J.E.’s mother.

ANALYSIS

[98] The two criminal harassment charges, counts 9 and 11, must be dismissed. They are very weak. In closing submissions, the Crown did not argue otherwise. In my view, those two offences would likely not have withstood a Defence Application for directed verdicts of acquittals.

[99] Regarding count 9, there is nil evidence that J.E. repeatedly followed the complainant from place to place. As that is an essential element of the offence which can hardly be said to have been proven anywhere close to the requisite standard of beyond a reasonable doubt, I find J.E. not guilty of that charge.

[100] Regarding count 11, there is nil evidence that J.E.’s repeated communications (text messages) to M.J.K. caused her to be fearful in any way. In fact, the only evidence from the complainant at trial was the opposite. As that is an essential element of the offence which can hardly be said to have been proven anywhere close to the requisite standard of beyond a reasonable doubt, I find J.E. not guilty of that charge.

[101] With regard to counts 1 and 3, I disagree with the Crown that assault is a lesser and included offence. Those counts are framed in the Indictment in a deficient manner. Absent amendment, the deficiencies in the way that the charges are pleaded cannot be cured by simply considering whether the accused is guilty of a lesser and included offence. Thus, on that basis alone, counts 1 and 3 must be dismissed.

[102] I turn now to an assessment of counts 1 through 7 and count 10 (remember that count 8 has already been dismissed). I am including counts 1 and 3 in the below assessment in the event that this matter is reviewed by a higher Court and it is held that I erred in not considering whether J.E. is guilty of the lesser and included offence of assault.

[103] Generally speaking, there is very little evidence to corroborate the testimony of M.J.K. in support of the charges against the accused. There are the text messages from the accused to the complainant, but those do little to help prove any of the offences. There is the photograph of the bruise to the arm of M.J.K., however, that photograph was taken several days after the alleged incident that it relates to, and further, the relevance of the photo depends entirely on the credibility of the complainant. There is the statement to the police by J.E., however, that goes only to the issue of the general volatility of the relationship between the parties. There is the fact that M.J.K. went to a women’s shelter, but that is of limited evidentiary value. There is the evidence of Ms. L.G. that M.J.K. was very upset on the telephone, however, it is also true that M.J.K. gave other reasons for being upset besides alleged abuse by J.E.

[104] The Crown was fair in closing submissions in acknowledging that there is not much corroborative evidence.

[105] Let me be perfectly clear about two things. First, I have sympathy for M.J.K. I think that she was probably mistreated by the accused. I think that she is likely better off now, without being in a relationship with J.E. M.J.K. strikes me as an industrious person who wants the best for her child.

[106] Second, I think that the accused is a good father but was likely a not-so-good partner to the complainant. Perhaps a lesson in humility would assist the accused in the future.

[107] It matters not whether I believe that J.E. is probably or likely guilty. I have to be sure.

[108] I do not necessarily believe the statements of the accused in his interview with Sgt. Richardson. The interview was little more than seemingly endless rambling and bravado on the part of J.E. His commentary was self-serving and imprecise on issues that one would think he should have better recall of, such as whether he tried to choke M.J.K. downstairs at the home of his parents – “might have” makes little sense to me.

[109] The denials of the accused, combined with the rest of the evidence at trial, however, leave me with a reasonable doubt.

[110] I disagree with the Defence that M.J.K. had some motive to lie, but I agree with Mr. Thompson that there are many difficulties with the evidence of M.J.K. I cannot ignore the cumulative effect of these frailties. The following observations are highly relevant to the credibility and reliability of the evidence of the complainant, upon which the Crown’s case, almost entirely, depends.

[111] First, the testimony of M.J.K. is inconsistent with that of Connie Sweiger, which evidence I accept. I have no doubt that M.J.K. knew, before the sentencing date, about the nature of the London charges against J.E. The testimony of the complainant on this issue makes no common sense and weighs against the credibility of her evidence generally.

[112] Second, the testimony of M.J.K. is inconsistent with that of Nancy Macivor, which evidence I accept. I do not believe that the accused physically threatened or attempted to assault the complainant right in front of the mediator. Again, the testimony of the complainant on this issue makes no common sense and weighs against the credibility of her evidence generally.

[113] Note that the evidence of the complainant is also inconsistent with that of her cousin, however, the inconsistencies are on minor points such as whether Ms. L.G. suggested that M.J.K. contact her employee assistance program.

[114] Third, for me to accept the testimony of M.J.K. at trial would require me to explain why her persistent untruths to the authorities in the past, including the police, the CAS, counsellor Bonnie Walraven and Ms. Sweiger, do not leave me with a reasonable doubt. On the facts of this case, I am unable to explain that.

[115] Fourth, the testimony of M.J.K. at trial was internally inconsistent on matters of importance. Two examples will suffice for illustrative purposes. First, she directly contradicted herself on whether the alleged poking of her chest by the accused was a reason why she went to the women’s shelter. Second, she was inconsistent on what the argument was about which precipitated the alleged first abusive incident on Oxford Street in London.

[116] Fifth, the testimony of M.J.K. at trial was inconsistent with her prior statements in her journal, on matters of importance. For example, in timing, sequence and substance, her account in her journal of the first two alleged incidents of abuse in London was different than her testimony at trial.

[117] In my assessment, these inconsistencies have an adverse effect on the credibility of the evidence of the complainant generally.

[118] Finally, there were instances of M.J.K. being sarcastic with Defence counsel at trial and examples of her seeming to exaggerate her evidence. There is no need for me to belabor those points, but I am entitled to take in to account the demeanour of a witness and the tendency of that witness to engage in hyperbole in the overall assessment of the credibility and reliability of that witness’ evidence generally.

[119] It is true that I can accept all, some or none of a witness’ evidence. But, in this case, it would be dangerous for me to cherry-pick in accepting the evidence of M.J.K. which goes to the criminal acts complained of, while ignoring whether the frailties outlined above, collectively and in the context of the evidence at trial as a whole, leave me with a reasonable doubt.

CONCLUSION

[120] I have my suspicions, but I am not sure whether J.E. is guilty of any of the offences charged. I have a reasonable doubt on all of the charges. Thus, not guilty verdicts are registered on every remaining count.

[121] Specifically, on counts 1 and 3, if those charges are survivable at all, I am not sure whether the accused attempted to choke the complainant as alleged. An acquittal must follow.

[122] On counts 2, 4, 6 and 7, I am not sure whether the accused applied force to the complainant as alleged. Acquittals must follow.

[123] On counts 5 and 10, I am not sure whether the accused threatened the complainant as alleged. Acquittals must follow.

[124] In cases where there are so many charges against an accused, there can creep in to the analysis a subconscious temptation to relax the criminal standard of proof on something close to the line to avoid the proverbial “shut-out”, to borrow a hockey analogy.

[125] For obvious reasons, such a result would be contrary to the interests of justice.

[126] I find J.E. not guilty of all charges.

[127] None of this is meant as some indictment of M.J.K. She is not on trial here. I wish both parties and the young child good fortune.

[128] To Mr. Shatto and Mr. Thompson, thank you for your professionalism throughout the trial.

___________________________

Conlan J.

Released: March 27, 2014

COURT FILE NO.: 831/12

DATE: 20140327

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

- and -

J.E.

Defendant

REASONS FOR JUDGMENT

Conlan J.

Released: March 27, 2014