ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-DV6336

DATE: 20150702

BETWEEN:

HER MAJESTY THE QUEEN

– and –

B.L.

Defendant

Tim Wightman, for the Crown

Neil Weinstein, for the Defendant

HEARD: October 6-10, 14-17, 2014 and May 21, June 15, 16, 18, and 23, 2015

decision

toscano roccamo j. (orally)

Overview

[1] B.L. stands charged with committing an assault on A.M.G., using a knife and causing bodily harm to her, sometime between May 1 and July 31, 2008, contrary to sections 267(a) and (b) of the Criminal Code and section 88(2) of the Criminal Code.

[2] Mr. B.L. is further charged with offences which are alleged to have occurred between May 9 and May 14, 2010, including unlawful entry into the apartment of Ms. A.M.G. at […]Street with intent to commit an offence contrary to section 349(1) of the Criminal Code, that is an assault on Ms. A.M.G. contrary to section 266 of the Criminal Code and a threat to cause her death contrary to section 264.1(2) of the Criminal Code.

[3] The criminal allegations before me are enmeshed in a domestic background that provides necessary context to the proceedings before me.

[4] Ms. A.M.G. and Mr. B.L. met in their mid-teens. They later became involved in a relationship, which lasted over four and a half years. During the relationship they had a son, W., born on […], 2008. The relationship ended in or about September or October, 2009 after Ms. A.M.G. contracted a sexually transmitted disease requiring that they both be treated for chlamydia.

[5] However, I have no doubt that the relationship encountered troubles well before this – not surprising, given their youth, limited education, lack of employment and related poverty, the involvement of both in the criminal justice system, as appears from their respective criminal records entered as Exhibits 1 and 4, and the use of drugs. Mr. B.L.’s background, particularly his criminal record commencing as a youth, did nothing to endear him to Ms. A.M.G.’s parents, who never supported the relationship. The unplanned pregnancy added further strain and turbulence to an already rocky relationship.

[6] The informal parenting and child support arrangements they observed between the fall of 2009 and May 10, 2010, ended precipitously when Ms. A.M.G. fled this jurisdiction without notice to Mr. B.L. and took up residence in a Toronto shelter where she remained for a matter of months. By late summer, Ms. A.M.G., with the help of social assistance, was able to find her own apartment.

[7] Unable to enlist the support of Ms. A.M.G.’s parents to find Ms. A.M.G. and W., Mr. B.L. reluctantly turned to local police for assistance, but eventually commenced family law proceedings on June 9, 2010, advancing claims with regards to custody and access and an order returning W. to this Court’s jurisdiction. At the same time, child protection agencies in Toronto and locally became embroiled.

Crown’s Position

[8] It is the position of the Crown that Ms. A.M.G. was a victim of long-standing violence and abuse at the hands of Mr. B.L. and that she fled the jurisdiction after a violent assault on May 10, 2010, in which Mr. B.L. broke her teeth and uttered a death threat. It is alleged she fled to escape his control before she and W. came to a bad end.

[9] The Crown relies on Ms. A.M.G.’s account of the troubled relationship, as corroborated by Ms. A.M.G.’s mother, L.M.G., as well as a background of discreditable conduct to explain why Ms. A.M.G. waited until September 2010 to report the serious allegations underpinning the criminal charges against Mr. B.L.. This was at a time when Ms. A.M.G. was faced with the prospect of losing primary care of W., a prospect which became more real after a Temporary Order made by Justice McLean of this Court, granting temporary sole custody to Mr. B.L..

Defence’s Position

[10] The position of the Defence is that Ms. A.M.G. fabricated all allegations against Mr. B.L. to justify her flight from the city with their son, W., after they argued on May 10, 2010, in the presence of S.L.. Ms. S.L. is Mr. B.L.’s current partner. They have been together for the past six years and she is the mother of his youngest two children, T., aged four and M., aged two.

[11] The argument concerned a two-week interruption in Mr. B.L.’s access during which Ms. A.M.G. failed to respond to Mr. B.L.’s texts and calls after futile attempts were made to reach her through her parents and after her cell phone service was terminated. Mr. B.L. relies on a body of Yahoo Answers, in Exhibits 6 through to 22, posted by an account holder identified as “Annegelina 86” and linked to a photobucket account registered to “Anngelina_86”, as well as web pages generated via a Google search of Ms. A.M.G.’s rapper stage name “Annarchy Allure”, all of which paint a very positive image of Mr. B.L. throughout the relationship.

[12] The Defence also relies upon the lyrics and music of Ms. A.M.G.’s rap songs “I Told Ya” and “OT to NY”, (Exhibits 5, 25 and 26). Ms. A.M.G. recorded music both before and after her relationship with Mr. B.L. ended. The Defence also relies on a Twitter post Ms. A.M.G. admitted that she authored after fleeing to Toronto. The Defence argues the songs and Tweet paint a negative picture of Ms. A.M.G. as a hardened individual with little respect for figures of authority, and who engaged in criminal conduct, including a police chase during which Ms. A.M.G. may well have sustained the injury she attributed to Mr. B.L. in the alleged assault of May 10, 2010.

[13] Mr. B.L. also relies on the testimony of Ottawa Police Detective Michel Villeneuve to refute the suggestion that he “doctored” or “spoofed” the Yahoo Answers to paint a positive image of himself through the relationship and a misleading image of Ms. A.M.G..

[14] Finally, the Defence relies on a body of inconsistencies in Ms. A.M.G.’s evidence at trial, as compared to the affidavits she swore in support of the family law proceedings, testimony she offered at the trial of the family court proceedings in May 2014 and at the preliminary inquiry in 2012.

The Issues

[15] The primary issue raised by the evidence heard in this criminal trial is whether or not these crimes in fact took place.

The Analytical Framework

[16] The credibility of Mr. B.L. and Ms. A.M.G. with respect to the issue at hand is critical to the findings I make.

[17] In all cases that turn on the issue of credibility, the principles from Justice Cory’s majority judgment in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 [W. (D.)], apply. At pp. 757 to 758, Justice Cory stated:

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.

[18] Of course, in this case the trier of fact is not a jury but the trial judge. As such, I have applied this analytical framework to the evidence received.

[19] The W. (D.) instruction applies not only to the elements of the offences charged that must be proved by the Crown beyond a reasonable doubt, but also to the elements of defences raised by the evidence that must be negated by the Crown beyond a reasonable doubt.

[20] In assessing the credibility of both Mr. B.L. and Ms. A.M.G. in this case, I am also guided by the dicta of Justice Watt of the Court of Appeal in R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41:

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately:

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

The Evidence of B.L.

[21] Having guided myself by the case law, I found Mr. B.L. a generally responsive witness whose evidence was not materially impeached on any question related to the charged events. However, I was troubled by the occasional stretches of silence before some questions were answered; his resistance to the common sense suggestion that he would have expressed upset and frustration, if not anger, at times material to the charged events; and the fact that he sometimes smiled incongruously when giving answers to questions put to him in cross-examination. On the other hand, I well recognize that both Mr. B.L. and Ms. A.M.G. have, over a significant period of time, been engaged in interlocutory and final family court and criminal proceedings that would have offered them repeated opportunity to give evidence. This litigation experience could explain the practiced presentation, pauses in testimony and anticipatory responses I noted in both on occasion.

[22] Mr. B.L. made appropriate concessions as to the chronology of events in the relationship as well as the different residences they occupied over time. He also confirmed his mother’s struggle with addictions, as well as his poor relationship with Ms. A.M.G.’s parents.

[23] Mr. B.L. acknowledged the challenges that would have been faced in his relationship with Ms. A.M.G. due to limited education, lack of employment in the early part of the relationship, and poor choices with respect to the use of their limited pooled funds including the limited availability of meal choices offered by Ms. A.M.G.’s cooking while they both lived at […]Street. On the other hand, the picture he painted of a relationship that was near perfect, with few arguments, and resolved by amicable discussions, was far-fetched and internally inconsistent.

[24] I accept that it would have been more logical to expect conflict in the relationship due to its multiple challenges.

[25] As such, I cannot conclude on the first branch of the W. D. analysis that Mr. B.L.’s testimony offered the ring of truth throughout. On the other hand, Mr. B.L.’s unimpeached testimony with respect to the charged events and what I find to be an unreliable body of evidence pertaining to Mr. B.L.’s “discreditable conduct” leaves me in a reasonable doubt as to his guilt on the charges before me.

Counts 1 to 3:

[26] With respect to counts 1 to 3 in the indictment, Mr. B.L. unequivocally refuted the accusations that he disfigured Ms. A.M.G.’s face using a knife he generally carried for work. The knife he described was at odds with the description provided by Ms. A.M.G. and more in keeping with the description of an “exacto” knife that he would have used in the course of his six years of employment with the O’Reilly Brothers.

[27] It is true that in a voluntary statement provided to police after these charges were laid, Mr. B.L. failed to inform the police that his mother was present when, Mr. B.L. states, Ms. A.M.G. informed him that she had cut her face when a light bulb or fixture exploded in their apartment before he returned home from work one day. However, I am not satisfied beyond reasonable doubt that, because Mr. B.L. made no inquiries as to the whereabouts of the defective light or light cover nor spoke to maintenance staff about its repair, it should lead to the conclusion that Mr. B.L. cut Ms. A.M.G.’s face during an argument. Mr. B.L.’s lack of follow-up is equally consistent with his testimony that: this was not a significant event in their relationship; the wound did not appear to him to require medical attention; and nothing more was made of it for years until these charges were laid.

[28] When I consider Ms. A.M.G.’s testimony, as corroborated by that of her mother’s, that she informed her parents the wound was caused in the manner described by Mr. B.L. and not by a knife, I am left in a reasonable doubt. I add that Ms. A.M.G.’s mother testified during examination in-chief that she saw a cut on Ms. A.M.G.’s face in 2008 and was told it was from changing a light bulb. She said she did not believe Ms. A.M.G.. However, in her cross-examination, when referred to the evidence she gave in the preliminary inquiry, Ms. A.M.G.’s mother agreed that she testified that the first time that she learned of the cut to Ms. A.M.G.’s face was during a telephone conversation. As such, I am left in a reasonable doubt from the testimony of Ms. A.M.G. and her mother as to what caused the cut to Ms. A.M.G.’s face in 2008 and when exactly the cut was observed by Ms. A.M.G.’s mother, if ever.

[29] The photographs furnished with respect to the healed wound in Exhibit 1, shed no light as to whether or not the small scar might have resulted from a wound inflicted by a defective fixture or glass from a broken bulb.

[30] I must say that Mr. B.L.’s flat denial of violent or abusive conduct towards Ms. A.M.G. on […] Street, and in particular, the incident where Ms. A.M.G. and her mother allege that he threw Ms. A.M.G. and her personal effects down the stairs, and subsequently, the argument overheard by Ms. A.M.G.’s mother on […] Street, leaves me troubled. On the other hand, the clear animus expressed by Ms. A.M.G.’s mother towards Mr. B.L. as confirmed by Ms. A.M.G. herself, along with other aspects of her testimony which I found to be unreliable, leaves me in a reasonable doubt.

[31] Perhaps the most significant body of discreditable conduct that was introduced by the Crown pertaining to Mr. B.L. is described as the “Josh Binks” event. In the Josh Binks event, Mr. B.L. is alleged to have been seen by Ms. A.M.G. stab Mr. Binks in retaliation for an outstanding drug debt. Yet, the Josh Binks evidence seems to corroborate Mr. B.L.’s testimony that: he did not know Mr. Binks; he was not in the company of Ms. A.M.G. and a former friend, Mark Avon, on this occasion; and, the aggressor’s description offered by the independent witness, Denis Forest, is consistent with the aggressor being “mulatto”, and not fair skinned like Mr. B.L..

[32] I must also observe that the prejudicial value of the Josh Binks evidence far exceeded its probative value. It was not of such a probative value as to persuade me that Mr. B.L. was of such a temperament as to disfigure Ms. A.M.G.’s face with a knife in the course of an argument. I am also unconvinced that the Josh Binks evidence used in this fashion would not result in impermissible propensity reasoning.

[33] In any event, the body of evidence concerning counts 1 to 3, particularly when I consider the problematic nature of Ms. A.M.G.’s evidence, and inconsistencies in that of her mother’s, fails to satisfy me that the criminal standard of proof has been met.

Counts 4 to 6:

[34] With respect to the charged events, surrounding the incident of May 10, 2010, while I cannot believe that Mr. B.L. would not have experienced likely frustration and upset that built over the two-week period prior to May 10 during which access to his son was interrupted, Mr. B.L.’s unimpeached denial of any assault on Ms. A.M.G. or utterance of a death threat, coupled with Ms. S.L.’s evidence, leave me in a reasonable doubt.

[35] I do not fail to observe that Ms. S.L. offered no detail in either her examination in-chief or initially in cross-examination about one of two conversations she and Mr.