COURT FILE NO.: 11173

DATE: 2015/09/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C.L. A. &

J.R.

L. Tuttle, for the Crown Attorney

N. Williams & V. Singh, for the accused, C.A.

F. Brennan for the accused, J.R.

HEARD: January 12, 13, 14, 15, 16 30, March 11, June, 8, 9, 10, 11 12, July 6, 7, 8, 9, 10, and 15, 2015

REASONS FOR JUDGMENT

A.J. Goodman j.

Introduction

[1] On August 13, 2011, C.G. (“C.G.”) was urgently brought from her place of residence that she shared with both accused to the London Health Sciences Centre suffering from serious and horrendous wounds, including critical third-degree burns to 18% of her body.

[2] After a police investigation, C.G.’s roommates, C.A. (“C.A.”) and J.R. (“J.R.”)[^1] were both charged with aggravated assault, assault with a weapon, aggravated sexual assault and unlawful confinement, contrary to their respective provisions in the Criminal Code. J.R. also faces two additional counts, namely, sexual assault with a weapon and assault simplicitor.

[3] These charges relate to incidents that were alleged to have occurred between September 8, 2010 and August 13, 2011 in the City of London. Both accused pleaded not guilty to all of the charges.

[4] The genesis of this proceeding was due to a mistrial declared at the conclusion of the first trial, just prior to the sentencing hearing. While this retrial commenced in January 2015, due to a variety of issues beyond the parties’ control including a delay attributable to a mid-trial s. 278.1 application, the matter was only completed on July 15, 2015.

Positions of the Parties

[5] Ms. Tuttle for the Crown submits that despite some frailties, the evidence of the complainant ought to be accepted. The Crown submits that C.G. was neither dishonest, nor did she fabricate her evidence and provided her best recollection of the incidents. The Crown concedes that C.G.’s testimony is fraught with inconsistencies and various versions, therefore requires a careful examination of her evidence in light of the other evidence to determine which parts of her evidence should be accepted.

[6] While it is true that C.G. maintained that she purposely caused all of the injuries to herself “to punish herself” throughout the first part of her examination in chief, upon being cross-examined pursuant to s. 9(1) and (2) of the Canada Evidence Act, she reversed that position and testified about the abuse inflicted upon her by both accused. The Crown submits that her latter testimony concerning this abuse is supported by the credible and reliable evidence of other witnesses. The Crown argues that a careful assessment of the complainant’s evidence reveals a number of things that had the “ring of truth”. When she finally gave evidence in chief about what really happened to her after the ss. 9(1) and 9(2) application, there was a complete change in her demeanor. She went from answering in a monotone fashion with her head down to engaging with the Court and answering in an appropriate and emotive manner when describing what had happened to her. Her original charade that she had inflicted the injuries to herself made no sense and the reliable medical evidence is inconsistent with any theory that the injuries were either self-inflicted or accidental.

[7] On the crucial issue of credibility, Ms. Tuttle says that C.G. is childlike and that any assessment of her evidence must take that consideration into account, particularly with respect to her suggestibility. The Crown argues that C.A., although somewhat limited in her intellectual abilities is significantly more capable than C.G. in functioning independently in the community. The Crown says that many segments of C.A.’s testimony are not believable and her evidence ought to be rejected.

[8] The Crown submits that C.G. was coerced by her brother D.R. (“D.R.”) to change her evidence before the sentencing at the first trial and in providing differing versions of the events at this trial. Although the Crown is not required to prove D.R.’s motive for any coercion of his sister, the Crown submits that D.R. had such a motivation by encouraging C.G. to say that she had injured herself. The Crown says that D.R. felt the need to discredit his sister so that he would not get into any trouble if she were to complain about any of his behaviour towards her.

[9] Ms. Tuttle submits that C.G. eventually provided truthful testimony and on the entirety of the evidence, all the charges have been established beyond a reasonable doubt.

[10] Mr. Singh on behalf of C.A. submits that C.G. was neither credible nor reliable. Her version was incongruent with the testimony of the other Crown witness and her constant memory lapse was problematic. Mr. Singh submits that even if this Court does not find his client credible, the Crown has failed to establish the guilt of his client. It is submitted that the evidence of the principal prosecution witness was vague and C.G.’s numerous recantations are problematic. C.G.’s evidence suffered from significant internal and external inconsistencies, of which numerous examples are provided and her evidence should be rejected. There is no reliable evidence in support of C.G.’s story implicating the accused.

[11] Ms. Brennan, on behalf of J.R., shares Mr. Singh’s position and submits that her client ought to be acquitted. The evidence is not clear or convincing as to what actually occurred and the Crown has not established the essential elements of the charges beyond a reasonable doubt.

[12] Ms. Brennan submits that the injuries suffered by C.G. are admittedly disturbing and extreme. The defence submits that the nature and extent of the injuries alone cannot support criminal convictions in that the Court must be able to find as a fact, based on C.G.’s testimony as to how those injuries were sustained, and that they were caused by the accused. The defence need not prove that C.G. caused these injuries to herself to raise a doubt in this case.

[13] Ms. Brennan submits that although the Crown attempted to elicit some evidence of a motive for D.R. to force C.G. to recant, there simply is no plausible motive for D.R. to have forced his sister to change her trial evidence or to continue to lie in these proceedings. To suggest that somehow D.R. was trying to help either accused person is entirely without merit as he does not nor has he ever known C.A. or J.R..

[14] Defence counsel submit that the evidence adduced during this trial must raise a reasonable doubt. What really occurred in the Conway Drive apartment during the relevant time may never be fully understood or ascertained on the evidence presented during this trial.

Legal Analysis

[15] It is against this background that I now turn to the specific evidence and the analytical principles that I am required to apply in determining whether one or both accused are guilty or not guilty of the charges they face.

[16] All of the evidence must be considered in determining whether the Crown has made out the charges beyond a reasonable doubt. An accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was not required to disprove the offences occurred as alleged by the Crown and in the manner proposed by the prosecution. The most fundamental rule is that the burden of proving guilt of the accused lies upon the prosecution throughout the case. Before the accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of one or more of the offences charged against him, her or them.

[17] Here, there were several versions of the events that are alleged to have occurred. Those are, on the one hand, C.G.’s story of what the accused did to her, how others became aware of the events and the circumstances of her disclosure about the events that ensued; her subsequent recantations and the events surrounding that issue; and on the other hand, C.A.’s and the defence denial that no acts of mistreatment, assault or sexual abuse were perpetrated against C.G..

[18] Although there was other evidence presented by various witnesses, some of whom were peripheral to the matters before, during or after the offences were alleged to have occurred or through their relationships with the principal actors; the only direct evidence of the series of abuse, assaults and sexual offences was C.G.’s evidence that the events did or did not occur as she described them and C.A.’s evidence that no assault or abuse of C.G. ever took place. Further, in this case, all counsel placed significant emphasis on D.R.’s testimony about his involvement with his sister along with the medical evidence proffered by the prosecution.

Reasonable Doubt

[19] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus (1997), 118 C.C.C. (3d) 24 (Cory J). Later on in the Lifchus case, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof is higher than… a balance of probabilities, yet less than proved with absolute certainty".

[20] The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable guilt. A conclusion of probable or likely guilt requires that an acquittal be entered: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.).

[21] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.

[22] The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities in trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. It is clear that I must apply the same standards in assessing the evidence of the accused, the evidence of the complainant and the evidence of any and all other witness who testified at the trial.

Assessing Credibility

[23] In a case such as this the framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. This seminal three-fold test is straightforward. First, if the trier believes the evidence of the accused, then the accused must be acquitted. However, even if I do not believe the accused’s testimony, I would be obliged to dismiss the charge(s) if it leaves me in a position of reasonable doubt. Finally, even if I am not left in doubt by the evidence of the defence, I am required to ask myself, having regard to the whole of the evidence presented at trial and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of one or both accused.

[24] Both the Crown and the defence focused on this as a case concerned principally with credibility and the internal and external consistency, reliability and rationality of the evidence advanced by the witnesses, in particular, C.A., C.G. and D.R.. It is certainly true that credibility and reliability of evidence is central to the case. However, to establish whether findings of credibility are effectively dispositive of the matter, I cannot lose sight of the required legal components of the offences charged and the essential elements that Crown counsel must prove beyond a reasonable doubt before either or both accused can be convicted of one or more of these charges.

[25] In assessing the evidence, there are many well-established principles to be kept in mind. A criminal trial is not a credibility contest between witnesses. Time and time again the Supreme Court of Canada and the Ontario Court of Appeal have made it clear that the Court's verdict should not be based on a choice between the accused’s evidence and the Crown’s evidence, but on whether, based on the whole of the evidence, the Court is left with a reasonable doubt as to the accused’s guilt.[^2] Indeed, it is not an “either/or” choice between two sides. I feel it is important to reiterate these fundamental principles because I must not permit the burden of proof to be inadvertently shifted to the accused by requiring him or her to convince the Court that the defence evidence might reasonably be true.

[26] The assessment of credibility is often the primary and the most daunting task that the trier of fact faces in a criminal trial, involving determinations of the truthfulness of witnesses and an assessment of their reliability.[^3] It requires a determination of whether their recollections are accurate regardless of the sincerity of their beliefs.

[27] It is trite law that a trier of fact may believe all, none or some about witnesses’ evidence. A judge is entitled to accept parts of a witness’s evidence and reject other parts and similarly the trier can accord different weight to different parts of the evidence that the trier of fact has accepted.

[28] Ultimately, there are no fixed rules to which the Court can look to guide it in its assessment of the credibility of the Crown’s witnesses in this case, and its assessment of the credibility of the accused, but a number of elements may be considered. These include the perceptions of the witnesses, their memory, how reliably and accurately they recall the events, the manner in which the witnesses’ perceptions have been communicated to the Court, and whether the information has been presented in a sincere, complete and truthful manner. The Court will look to the witnesses and assess whether they are being sincere and frank, or biased, dishonest or careless with the truth, or perhaps reticent or evasive in the evidence that they have provided to the Court. These, and other factors, when combined, are what we describe as “credibility”.

[29] As mentioned, Ms. Tuttle submits that special consideration must be given to C.G.’s evidence, given her limited demonstrated cognitive capacity and her mental health challenges. The Crown says that courts have found that although such testimony must not be evaluated in the same manner as an adult at the time of the incidents and trial, there is a need to recognize and acknowledge that the memories to which the witness was testifying were formed from the perspective of an individual with significant mental health challenges and of limited intellect.

[30] In R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, the Supreme Court of Canada provides direction to trial judges in that every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate.

[31] Inconsistencies in the evidence of witnesses on relatively minor matters or matters of detail are, of course, normal. They are to be expected. Indeed, I would observe that the absence of such inconsistencies may be of even greater concern, for it may suggest collusion between witnesses in their evidence or fabrication or excessive rehearsal and regurgitation of a set story. However, where an inconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sense dictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that may undermine the whole of a witness’ evidence.

[32] C.G. has some intellectual limitations but to what degree is unclear. Ms. Tuttle described her as childlike, which may be obvious; however C.G. has had adult experiences. In my overall assessment, the admitted inconsistencies must still be taken into account, all the while considering C.G.’s mental development and her understanding and ability to express herself. While some latitude may be provided, I cannot conclude that C.G. is someone who does not have an adult’s ability or capacity to recall precise details and describe events fully and accurately. It would not be appropriate to choose to regard any fundamental inconsistencies in her testimony as less significant than inconsistencies in the testimony of any other witness.

[33] In this case, all counsel concede that we have various inconsistencies offered by C.G. along with several differing accounts of how the injuries occurred with explanations provided for those versions. Suffice it to state that at the end of the day, the best approach to the assessment of credibility is for me to ask myself as trier the same questions that we admonish juries when we ask them to assess the credibility of witnesses, the reliability of witnesses, and to determine the truth.

Analysis

[34] I have taken into account the whole of the evidence when making these assessments, although I have not recounted all of that evidence in the course of undertaking that analysis in these reasons – I have instead drawn attention to that evidence and to those particular instances that form the central foundations for my findings.

[35] There is no doubt that this is a very difficult case. The challenges facing a trier of fact stem from the undisputed evidence that C.G., a vulnerable person in all sense of the word, had presented at the hospital with serious and disturbing injuries while at the relevant time was under the “care” of and residing with both accused. C.A. and J.R. had an exclusive opportunity to commit these acts. On the other hand, there were a serious of different renditions and recantations offered by the complainant and various explanations provided for those changes in her versions of events.

[36] Indeed, it would be a relatively simple and straightforward task to review the medical evidence along with the photographs of C.G.’s gruesome injuries to parts of her body, including burns to her vagina, the unchallenged evidence of the extreme degree of pain that would be associated with these repetitive type of burns and conclude that no one would or could do this to themselves. Even with the permutations in the victim’s renderings, one could readily conclude that C.A. and J.R. must have perpetrated these acts by their failing to act or reasonably react to these severe injuries; whether by failing to render proper first aid or address the repetitive nature of the burns. One could look at C.G.’s childlike, gullible and obsequious behavior and conclude that this vulnerable person could be easily manipulated or coerced to act or refrain from doing certain things even in the face of repeated abuse and assaults.

[37] However, that is clearly not the test in criminal law and would improperly reverse the legal and persuasive burden of proof onto the defence.

[38] Undoubtedly, this case does not really involve whether the injuries occurred. The wounds speak for themselves. While it is true that there is a dispute about the sexual assaults and confinement actually occurring; the live issue in this case is whether some or all of the injuries resulted from acts caused by the accused as principals or parties to the offence or whether they were caused by the complainant or are left unexplained.

[39] Let me first turn to the victim’s testimony. C.G. testified at the first trial, resulting in findings of guilt against both accused. As mentioned, the first recantation surfaced prior to sentencing. This was reiterated by C.G.’s follow-up statement to the police and Crown attorney on March 6, 2014.

[40] C.G. resided with D.R. prior to and throughout the first trial, up until January 2015. D.R. stated he knew his sister extremely well and became concerned when C.G.’s behavior appeared to have changed after the verdict in the last trial. According to D.R., she appeared nervous or anxious about something. D.R. asked C.G. if she knew what a life sentence was because he knew the Crown was seeking such a sentence. D.R. testified he was concerned by C.G.’s behavior after the verdict in part because of the serious nature of the charges.

[41] C.G.’s evidence was that she did not even recall D.R. talking about this issue during their conversation in the bedroom. C.G. agreed that after the conclusion of the last trial, she started to feel nervous, anxious, and not quite herself. She could not provide any explanation as to why she started to feel this way and she agreed that her brother knew her better than anyone else at the time. C.G. and D.R. agreed that the initial recantation of C.G.’s evidence started with a simple, open-ended question. She was asked “Of all the stories you told Rob and Fraser, were there any of them that were not true.” According to both C.G. and D.R., she became upset and gesturing to the side or back of her head, that she had hit herself with a vase. C.G. then gestured to her arm, and indicated that she lit her own arm on fire with J.R.’s zippo lighter and he blew it out. Subsequently, C.G. claimed that she had burned herself with the hot water. She then recanted part of her account to D.R. and claimed that she did not do the burns to herself. She agreed that D.R. asked her to go to the hospital and she went with him to seek medical attention.

[42] In this trial, C.G. initially testified that C.A. and J.R. did not assault her sexually or otherwise and that she was not forcibly confined. C.G. commenced her evidence denying that J.R. or C.A. ever hurt her in any way. Specifically, she testified that she had burned herself with boiling hot water on three occasions. She described how she boiled the kettle and applied the water to her own body each time. She also described whipping herself with cords. She clarified that she harmed herself as a way to “punish herself for the way she acted around people.” Her assertion was that she did the acts to punish herself for her repeated transgressions. Similarly, she initially testified that she had a sexual relationship with J.R. but that the sexual relationship was always consensual.

[43] After the ss. 9(1) and 9(2) Evidence Act application, C.G. had reverted back to her original position and testified that J.R., with the assistance of C.A. had perpetrated all of the injuries upon her. By the conclusion of her examination-in-chief, she agreed that the sex was never consensual and she only did it because she was scared. She had been abused and confined during her sojourn at the Conway Drive apartment.

[44] During this trial, C.G.’s explanation for the initial and subsequent recantations to the police, the Crown, and this Court, was that D.R. told her to say that she had lied. When returning to testify in June, 2015, C.G. asserted that her brother D.R. had not only told her to lie, but had in fact struck her just prior to her return to court for her testimony on January 16, 2015. She claimed that he hit her so hard that she had a bruise between her eyes that she could observe. Detective Simone, who interviewed C.G. about D.R. allegedly striking her on the morning of January 16 did not see any such bruise or even a red mark between her eyes. This observation contradicts C.G.’s assertion that D.R. struck her when he found out that she had returned to her previous version at trial.

[45] Leaving aside for the moment the recantations, I turn to the matter of C.G.’s external and internal inconsistencies.

[46] All parties to this litigation readily concede that C.G. provided inconsistent testimony. Hence, I need not recite all of those examples with minute precision and detail. However some examples of these internal inconsistencies include the following: The time and reasons for her being in the storage closet; the whipping of her back and forearm and who was the perpetrator of such acts; the circumstances of the burning of her neck and shoulder; the origin of the second burning incident related to a purported failure to provide J.R. with a “proper blow job”; her allegation of J.R. hitting her on the face, whether on the right or left side; the slap on her hand; the incident of being struck with the vase; the alleged pouring of chemicals down her throat and whether bleach or Vim was employed; the nature of any sexual relationship with J.R.; the lighter fluid incident, and whether events actually occurred at the Hamilton Road apartment or at Conway Drive.

[47] Examples of external inconsistencies or where the evidence of other witnesses was diametrically opposed to C.G.’s testimony include: whether there were locks on the doors of the apartment, the use of or access to the internet and telephone, access and egress or the lack of opportunities to leave the apartment, doors being taped or the screen door to the balcony being secured; and what C.G. purportedly said to her neighbour, the paramedics and the police on August 13, 2011.

[48] In cross-examination, C.G. provided conflicting testimony about the reasons she was being punished on various occasions. It was pointed out to her by Ms. Brennan that at the first trial she testified that the first burning was because she lied or did not listen. This was after she had testified during this trial that it was for coming out of the storage closet.

[49] She agreed with a suggestion by Ms. Brennan that she told the neighbour, on the day she was rescued by the police, that she had poured water on herself. The only utterance C.G. made about what happened to her that was not the product of being questioned was when she started screaming in pain on the balcony. She agreed that she did not think about what she was saying; she just spontaneously uttered “I poured water on myself”. C.G. explained that she hurt herself because J.R. and C.A. told her to say that. Her explanation for her first, unprompted utterance for her injuries was that she was being repeatedly questioned by the first responders.

[50] C.G.’s explanations for her reluctance to even speak to the police and not responding at all when police first arrived at her apartment are problematic. She testified she was in too much pain to go the door, but first responders saw C.G. walk into the apartment after they arrived. C.G. testified at the previous trial that she did not respond when the police knocked on the door because she did not know it was the police. However, in this trial she testified that one police officer called up to her from the ground and that she knew her neighbour had called the police. Officers Broughton and Nakeyar testified they announced they were the police when they arrived at the apartment.

[51] C.G. provided various explanations for why she did not go to the hospital. One explanation was that J.R. and C.A. told her that she would have to say that she did these things to herself. She nonetheless agreed, that both accused urged her to go the doctor or a walk-in clinic. C.G. added that the reason she did not want to go to the hospital was because she was scared of what the doctors would say. She recalled a time when her father had once threatened to put her in a hospital forever and she was very afraid of losing her independence. It seems to defy logic that either or both accused would encourage her to seek medical help if they were in fact repeatedly abusing her.

[52] Examples of collateral issues related to challenging C.G.’s credibility include the nature of her claim for ODSP and her relationship with Jamie in support of a financial benefit and her the theft of money from C.A.. As mentioned, C.G. made an allegation of being assaulted by D.R. in mid-January 2015 with resulting visible injuries. The police officer did not observe any such injury when he had ample and a timely opportunity to do so flowing from C.G.’s reporting of the incident.[^4]

[53] I accept that C.G. had lied to various individuals including D.R., her neighbor, treating physicians and specialists, hospital staff and the police officers. C.G. testified that she assured the officers at the hospital that she was not lying to them and knew it was important to tell the truth. Although making that assurance to the police, C.G. testified that she made serious allegations against J.R. that were not true, such as J.R. never burned her because she failed to perform sexually. In her first statement to the police, however, she testified that the burn on her ribs occurred because she had not performed oral sex properly on him. In cross-examination, she admitted lying in her August 2011 statement to Officer Nakeyar about J.R. placing duct tape around her mouth while he poured hot water on her face and head. She added that it was stressful and confusing when the police asked her questions.

[54] It is apparent that C.G. is gullible and easily prone to suggestion. I note that defence counsel, in particular Ms. Brennan who conducted herself admirably by posing questions to C.G. that would invite a non-suggestive response in an attempt to elicit a somewhat accurate recital of the true events. Nonetheless, I must consider that this witness was still easily lead at times as demonstrated by questions posed all counsel, including Ms. Tuttle during the Evidence Act examinations.

[55] That being said, I accept D.R.’s evidence about C.G.’s ability to understand words, yet, at times feigning ignorance. Indeed, at times during her testimony, she claimed that did not understand certain words or phrases. This is quite understandable. However on at least four specific occasions, once in-chief and three times in cross-examination, I noted in my bench book that C.G. appeared to totally comprehend what was being asked and she responded accordingly and with appropriate meaning, only to later seek some clarification about the particular word or phrase. While it is clear that she has some limited cognitive skills, I have some concerns that she may have used such a deficiency to her advantage. I am persuaded that at times, she overplayed her lack of understanding to some of the language in the questions posed to her.

[56] Of some significance related to her credibility were C.G.’s historical allegations of molestations made against her brothers (not D.R.). While the details of this narrative were vague, C.G. reported a serious rape was perpetrated on her by one or more of those individuals. Subsequently, all charges were dropped due to the discovery of the falsity of the allegations. Apparently, it was explained that the motivation for her mendacity leading to the spurious charges was that C.G. did not like the way she was being treated by her brothers or grandfather.

[57] The Crown concedes that this theme may be one factor impacting upon her credibility. It seems to me that C.G. is readily able to concoct allegations against individuals or create fictitious events or even embellish circumstances without regard to the dire consequences that may ensue.

[58] Why would C.G. act in this manner? Is it premised on some malevolent design or compulsion? I think not. While C.G. has a pleasing demeanour, is childlike and quite likeable, that does not mean she cannot act in a vindictive or manipulative manner. I acknowledge that I do not have medical evidence on point, and I can only hazard to explain her behaviour without speculating. However, based on the collateral evidence, I am of the view that C.G. may act or say things in order to gain a benefit or to achieve an end without having fully recognized the implications of such acts without malice per se.

[59] Overall, I accept all of Crown police and civilian witness’ testimony that related to observations made by those individuals or their actions taken during the relevant time. Indeed, defence counsel did not seriously dispute the evidence provided by these other witnesses, and primarily focused their challenge to some of the medical opinion testimony offered by Doctors Lewell and Scilley, which I will address momentarily.

[60] C.A. testified on her own behalf. According to C.A., J.R. and she planned to get married and J.R. proposed to her while they were living at 30 Conway Drive. C.A. testified that the proposal was on July 16 because that was the day that her first love from high school was killed in a motor vehicle accident. C.G. was present for this proposal along with Jeff who had known C.A. and J.R. for at least 20 years.

[61] In describing the apartment, C.A. testified that there were no locks on any doors. There was no tape or barriers placed on or against doors. There was a telephone landline with the base in their bedroom and two handsets, one in the living room and the other in the computer room. There were no restrictions on who could use the phone which was always in service.

[62] C.A. testified that both she and J.R. took care of C.G., including preparing meals, shopping and providing other necessaries of life. C.G. required much assistance in her day-to day activities and J.R. was helping her with her finances.

[63] C.A. denied any wrongdoing and testified that she never struck, beat, whipped, abused or assaulted C.G.. She neither poured hot water on her nor caused C.G. any kind of injury at all. She also testified that she had never observed J.R. do any acts as described in the evidence. She denied the use of a vegetable peeler to provide first aid to C.G.’s wounds. C.A. neither saw J.R. hit C.G. with a vase or any other object nor assault C.G..

[64] C.A. added that she was never involved in any sexual activity with C.G. and C.G. never participated in sex with her or J.R.. C.A. specifically denied telling C.G. to get into the bath tub and taping her mouth shut and telling J.R. to put the kettle on and then holding C.G. in order for J.R. to pour boiling water on her due to some sexual misstep or for any reason.

[65] C.A. asserted that she had never or rarely seen C.G. in shorts or in skirts. When asked if she had ever seen C.G. with any injuries, C.A. testified that she believed that one or two months prior to her arrest she had seen one burn on her back. She was informed by C.G. that she had taken a shower that was too hot. She admitted that J.R. would have seen the burn as well. She testified that she only knew about C.G.’s back injury as C.G. showed her back to permit her to treat it.

[66] In cross-examination, C.A. reiterated that she had not seen any burn injuries occur. She claimed that the burn that she did observe after-the-fact seemed normal to her and she tried to keep it clean with Polysporin and rubbing alcohol. Neither C.A. nor J.R. ever alerted anyone to the fact that C.G. had apparently severely scalded herself in the shower. C.A. added that she asked C.G. if she wanted to go to the walk-in clinic or hospital but she simply refused to go. C.G. was afraid to go to the hospital because she felt that she would be kept there. C.G. agreed that J.R. and C.A. encouraged her to go to the hospital.

[67] C.A. was shown the photographs of what she agreed were significant injuries to C.G. on various parts of the body, yet she indicated that she had never seen those injuries until she had been shown the photographs. Leaving aside for the moment the question of who caused these wounds, C.A.’s testimony is not credible when it comes to her lack of knowledge about C.G.’s various injuries, including her dearth of observations on the day of her arrest, in particular the clothing she provided to C.G., (loose baggy pants and a jacket) and yet claiming that she did not observe any burn injuries prior to her departing the apartment for bingo.

[68] D.R. was called by the defence and he became an important witness in this case due to C.G.’s assertion that he had manipulated or compelled her to change her story to one of self-harm. It was apparent to me that this case morphed into a full scale inquiry about D.R.’s actions, motivations and interactions with C.G. and the criminal justice system.

[69] D.R. testified that he and his family took C.G. home from the initial reports of her injuries and they sheltered her and supported her all through both trials. D.R. described himself as caring, helpful and encouraging of his sister during the first trial, so much so that he felt confusion and upset when he was asked to exclude himself from the courtroom. When asked why he felt upset by defence counsel’s submissions, he stated he felt that he was being accused of something he didn’t do. He denied ever coaching his sister and by C.G.’s own evidence, D.R. was a caring brother who looked after her during this difficult period.

[70] Even in March, 2014, when C.G. was specifically asked by the Crown attorney if she was okay living with D.R., C.G. informed the police and Crown counsel that “things were good” and there were no concerns staying with her brother. In the same statement, C.G. denied anyone was telling her what to say during the meeting with the Crown attorney. In this trial, C.G.’s testimony was that everything was fine with D.R. and his family until she returned to court to testify in January 2015.

[71] When C.G. recanted to D.R. for the first time in the bedroom, D.R. was faced with what he described as a “shocking situation”. Not only had his sister just claimed that she may have perjured herself in proceedings where the liberty of two people were at stake, but she had also admitted to engaging in serious self-harm. D.R. took C.G. to a hospital where she could be interviewed by professionals. The police were advised because he believed that he had an obligation to do so.

[72] D.R. testified that he refused to pick up his sister after the hospital visit in June 2013 and C.G. remained at the Salvation Army locale for one night, - a place he believed was safe. D.R. gave two reasons for his decision, that it was a very long day and that he wanted to send a message to C.G. that she could not tell lies and stay at his house. He took it seriously that his sister may have lied about such important matters. However he conceded that he really did not know what the truth was and accepted C.G. back into his home, without difficulty, despite all of the turmoil. I do not read an ulterior or sinister motivation with D.R.’s actions in this regard although I have some concerns and do not accept his testimony regarding what he was told by hospital staff in retrieving C.G..

[73] That being said, I do have some additional concerns about D.R.’s evidence. He was prone to some excess and exaggeration and appeared to embellish his self-described protective role. Some areas of his testimony did not make sense. Examples include his description of the hospital staff’s behaviour in respect of some threat to call the police and have he and his wife charged with abandonment, if one of them did not appear within 15 minutes to retrieve C.G. from the hospital. Another area of concern stemmed from his disinclination to have C.G. participate in counselling offered by social services and his explanation for such refusal was wanting.

[74] D.R. testified that C.G. herself brought a manila envelope to Court and that he had no idea what was in it and had no interest whatsoever. This lack of interest was in spite of his stated intention to act as a protective older brother in seeing her through the difficult court process. He said that this disinterest continued even when C.G. said that the materials in the envelope were materials that she wanted the judge or Crown to have but not the police officers. Although C.G. had access to and had knowledge of how to use the family computer, he had never seen her use a printer. One might ask how it was that she had these printed and typed materials in her possession in the envelope. The question remains unanswered whether D.R. provided her with the materials and told her what to type. One area left untouched by counsel was the contents of the letter provided by C.G. to the police and Crown in which she changed her version of events. I have no evidence either way as to what to make of this document and whether it assists with my assessment of credibility.

[75] The Crown submits that D.R.’s evidence that C.G. had a ‘blackmail’ scheme in place for a number of months or years and that she was a vindictive person simply does not accord with the evidence from a number of witnesses, including D.R. himself. All describe C.G. as simple, childlike and intellectually disabled. In addressing this point, I note that the use of the word “blackmail” was continually employed by Ms. Tuttle in her questioning of D.R. and was not adopted by the witness.

[76] The Crown’s theory, asserted in cross-examination - and later all but discounted in final submissions - was that D.R.’s motivation was in part due to his financially controlling his sister. Crown counsel argues that D.R. had complete control over C.G.’s finances. D.R. testified that C.G. ’sO… money went towards paying family bills, but C.G. had her own account. While under his roof, C.G. never wanted for anything.

[77] It is apparent on C.G.’s own evidence that she had always had someone else look after her money—first her father, then Marjorie, then, J.R. because she did not trust herself with money. Indeed, there is no evidence from C.G. that she felt that D.R. was withholding her money or abusing her in this way. C.G. is a person who requires a great deal of help with daily living. After a ten year absence, D.R. tried to provide for his sister and he testified that he could not afford to do so without her contributing financially. In my view, that does not mean that he abused or controlled his sister. In fact, C.G. was quite happy with the living arrangements and she testified that she was content when her brother asked her if she wanted to continue living with his family when they moved to a larger house. I find D.R.’s explanations and use of C.G.’s money towards the overall household expenses was entirely reasonable.

[78] D.R. testified that he displaced his own daughter and moved C.G. into his daughter’s bedroom to make C.G. more comfortable. D.R. stated he worked less when C.G. resided with them because there was extra responsibility in taking care of her. I reject the Crown’s contention that D.R. confined C.G. based on a birthday party event for his daughter. Given C.’s psychological makeup, (and it is not disputed that C.G. can be challenging at times), it seems entirely reasonable to me that with an important birthday event and guests coming over, C.G. would be told to remain out of sight. There was no evidence of any other restrictions at the Rooth home and, with respect the Crown is stretching her theory of D.R.’s confinement or control over C.G. to the breaking point.

[79] While Crown counsel suggested that D.R. denied access to J. C.G.’s daughter, I accept D.R.’s answers to the effect that he did not have control over and when C.G. could see J. because he did not have custody of the child and his use of a vehicle to permit travel to Chatham was limited. In any event, C.G. testified that she in fact saw her daughter in December 2014, after she recanted her story. She also testified that there were future plans for her to visit her daughter.

[80] C.G. asserted that she recanted on previous occasions because her brother told her to do so. She also testified that D.R. told her what to say to the doctors at the hospital and later to Detective Skelton. Despite this assertion, C.G. did not tell Skelton that she self-harmed, rather, she informed Skelton that her brother did not believe her and he thinks she did these things to herself. After assurances from Skelton that the police did a thorough investigation, implying that Skelton did not believe that she harmed herself, C.G. appears to then agree with Skelton that she did not harm herself and requested Skelton speak with her brother. From this discussion, if D.R. had pressured her to say that she hurt herself, on this occasion C.G. appeared to be perfectly able to disregard his direction.

[81] D.R. admitted that he attended at the first trial when the trial judge made findings of credibility in favour of C.G.. He admitted that after that decision and his subsequent conversations with her, he became concerned that C.G. might say that he had mistreated her. D.R. denied that he had assaulted C.G., but did admit that he had become increasingly frustrated with the burden of caring for her.

[82] As stated, while there are some red flags to his evidence, I am persuaded that there is no motivation for D.R. to have C.G. change her story. D.R.’s explanation for why he asked his sister whether she lied to the police is credible. Knowing his sister as he did, it is totally natural that D.R. would make inquiries about why she was upset. In my view, D.R. was doing his best to care for his sister and made accommodations for her. D.R. testified that he knew his sister could be vindictive and he knew she was capable of lying. I am persuaded that D.R. is best suited to know his sister’s behaviour and I accept his assessment.

[83] Most importantly, it is also not lost on me that D.R. has absolutely no connection or relationship whatsoever with either accused. D.R. neither knew nor knows J.R. or C.A.. There is no logical rationale or inference that I can draw suggestive of any benefit for D.R. to assist either accused.

[84] For several years, D.R. continued to take C.G. to meetings with the Crown, victim witness, and the police in the lead up to trial in January 2015. He dropped C.G. off at the victim witness office in the courthouse every morning so she could testify. The suggested motive that D.R. somehow wanted to completely control C.G. is simply not borne out on the evidence. Indeed, D.R.’s life became a lot more difficult and complicated after he disclosed that C.G. had recanted at least some of her previous trial testimony. At the time of the recant, the trial was over. By reporting the recant, the spectre of the trial loomed very large again. Further, D.R.’s behavior is not consistent with someone who wanted his sister to recant her statement.

[85] There is no cogent evidence that C.G.’s tenure at her brother’s home was in any way contingent upon whether she recanted her version or not. I also reject the argument that D.R. put C.G. up to recanting in order that she would not be believed down the road should she disclose abuse at the hands of D.R. or members of his family. There was no abuse of her at D.R.’s home. Quite the contrary, D.R. was praised for how well C.G. looked when she returned to court with him for the preliminary hearing and the first trial. While he portrayed himself as a bit too altruistic, overall Darryl was credible and I accept his evidence.

[86] Whatever C.G.’s reasons for recanting and informing her brother that she lied at the first trial, I do not conclude that D.R. forcing her to do so was one of them. D.R.’s conduct was consistent with what he says his actual motive was; he wanted C.G. to tell the truth.

[87] Leaving aside the recantations, as mentioned, significant internal and external inconsistencies dogged C.G. throughout her testimony and recitation of what she believed had occurred. While I consider the peripheral inconsistencies as less significant, I have some fundamental concerns about the alleged events as described by C.G. in view of her recantations and her propensity to be mendacious.

Sexual Assault

[88] Turning to the specific allegations, with respect to the sexual assault count, C.G. described engaging in sexual activities with both C.A. and J.R. that started during the time they were living on Trafalgar Street. C.G. testified that it was both of their ideas and they asked her if she would be willing to engage in that activity and she agreed. She stated that they asked her in a nice way and she would say yes, but if they asked her in a mean way, she would say no.

[89] C.G. was asked by police officers if the sexual activity with C.A. and J.R. was consensual and she agreed. She later indicated that she was confused by the word “consensual”. She thought that “consensual” meant “confidential” and she added that she is confused by big words but pretends to understand them.

[90] C.G. testified that when she consented to the sexual activity with J.R. and C.A., she liked J.R. but was not really attracted to C.A.. Apparently, the sexual activity continued after they moved to Conway Drive and it occurred once or maybe twice a week. Sometimes the sexual activity was with J.R. only and sometimes it was just with C.A. and sometimes it was with all three of them. She described having sex and giving a “blow job” to J.R. and licking C.A.’s vagina. C.G. did not adopt her statement to Officer Nakeyar about C.A. wanted her to lick her vagina. C.G. also denied telling Nakeyar about receiving a burn to the left side of her chest because she did not give J.R. a proper blow job.

[91] C.G.’s evidence, even after she adopted portions of her previous trial testimony, was often devoid of detail on significant issues. Other than her evidence that C.A. burned her in the bathtub because she was not “licking her out properly”; C.G. provided no description of any single incident of sexual assault. She initially stated that all of the sex she had with J.R. and C.A. was consensual. She then agreed with the Crown that she did not want to have sex with J.R. or C.A. but only did so because she was scared she would be hurt if she did not. In cross-examination, she again stated that sometimes she wanted to have sex with J.R. and/or C.A.. She agreed that she was jealous of J.R. and C.A.’s relationship and thought it was very mean of J.R. to get engaged to C.A. in front of her.

[92] Frankly, C.G.’s testimony regarding her sexual relationship with C.A., but particularly with J.R. was confused and conflicting.

Forcible confinement

[93] I am not satisfied that C.G. was physical restrained by C.A. or J.R.. However, I note that while the traditional definition of confinement required a degree of physical restraint, recent case law may permit a wider definition of the offence.

[94] The most recent Supreme Court pronouncement on unlawful confinement arises from the case of R. v. Pritchard, 2008 SCC 59. In that case, the court considered the requirements of the offence under s. 279(2) in the context of raising a charge of second degree murder to first degree. The court defined unlawful confinement at para. 24 by stating:

The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2): see Luxton, at p. 723; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), per Cory J.A., at p. 475; R. v. Tremblay (1997), 1997 10526 (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.), per LeBel J.A. (as he then was), at pp. 91-92; and R. v. Mullings, 2005 CarswellOnt 3022 (S.C.J.), per Durno J., at para. 39.

[95] In the subsequent Manitoba Court of Appeal case of R. v. Kematch, 2010 MBCA 18, the court considered the evolution of the definition of unlawful confinement, including that set out by the Supreme Court of Canada in the Pritchard decision. In that case, Monnin J.A., writing for the court, held, at para. 89:

In the present case, although there were no actual physical restraints in the nature of bindings or handcuffs or barriers over Phoenix, except occasionally by a barrier, the young child was clearly physically restrained and restricted and directed at times to either remain in her bedroom or forbidden to leave the basement, to which she was regularly banished. Actual physical restraint or coercive restraint, as referred to by Binnie J. in Pritchard, is required, but depending on the circumstances it can be effected, as here, by fear, intimidation and psychological and other means. In a case of a child and a parent, or an adult and a child, the need for physical bindings or the like would be even less of a requirement because of the unequal relationship that already exists.

[96] C.G. testified that no one forced her to stay in the storage closet, but this was done only because she had urinated on the carpet. She agreed that she testified at the previous trial that she was not kept in the storage closet as a punishment, at least not until she burned her leg. However, during this trial she also stated that what she said before on this issue was not true and the storage closet was always inflicted as a punishment. C.G. testified at one point that she went into the storage closet to “punish herself” after J.R. broke his hand because he said it was her fault. C.G.’s testimony on this issue changed again when she indicated that she was forced to sleep in the storage closet.

[97] C.G. testified that she slept in the storage closet for a number of months until her back was burned and then she slept on the floor of the bedroom and then after her leg was injured she slept on the floor of the living room so her leg could be elevated. C.G. also testified that she was confined to the storage closet and in essence controlled by C.A. and J.R. by virtue of their threats to harm her, her fear of them and the isolation from her friends and family that they imposed.

[98] C.G. testified that items were placed in front of the closet door whenever C.A. and J.R. wanted to keep her there and the patio doors were taped shut. Constable Broughton testified that the patio door to the balcony was not locked. There was no tape on the door and nothing prevented him from opening the patio or front doors. Other than the sleeping bag with blood and the bathroom sink, there was nothing unusual about the apartment. Similarly, Nakiyer did not observe any locking devices on the patio and the patio door was open. Detective Constable Coon also did not notice any tape on balcony doors and did not remember any tape or tape residue on any doors.

[99] In cross-examination, C.G. agreed that her urination episodes caused a problem with the carpets and C.A. or J.R. told her she could not stay in the second bedroom. She also agreed with the suggestion that she went into the storage closet because it had a tile floor which was easier to clean and it was not as punishment.

[100] C.G. testified that she told the police that she could not leave the balcony due to J.R. placing tape on the door. During the first trial, C.G. had previously testified that she actually saw J.R. putting the tape on the door. In cross-examination, she not only acknowledged that she lied about the tape, but that she knew she lied about the tape from the beginning of her versions of events. She claimed that she told the police there was tape on the door because she needed to give some explanation for why she did not answer the front door.

[101] C.G. testified that the reason she not call for help was because she did not have a “phone handy”; the house phone was kept locked in J.R. and C.A.’s bedroom. Her cell phone did not have any time left on it. In her very first statement to the police, she claimed that she did not call for help because the phone was in J.R.’s name. She testified at this trial that she did believe the phone was locked in the bedroom, but explained that she could be mistaken about this fact. The receiver of the portable telephone and two cell phones were found on a table in the computer room, which was also unlocked. In re-examination, she again asserted that she knew the phone was locked in the bedroom because she saw them lock it. Three computers were found in the apartment. C.G. acknowledged that she knew how to use computers, and even knew how to set up her own Facebook account.

[102] While C.G. may have had a subjective belief that she was confined, such was not borne out in the physical evidence and all but contradicted in her versions provided in her testimony. The evidence found at the scene does neither support C.G.’s versions nor the details she provided to the police or during her testimony at trial. Indeed, it is illogical that either accused would confine C.G. out on the balcony, where she could easily scream for help if they were severely abusing her.

[103] In my opinion, there was no evidence obtained by officers who examined the apartment at Conway Drive that corroborates C.G.’s allegation that she was sexually assaulted or forcibly confined.

Assault with a weapon:

[104] The assault with weapons counts involve various objects including a large vase, a lighter and whipping with a cord and a vegetable peeler.

[105] Vase: C.G. described J.R. hitting her on the back right side of her head with a vase. She believed that she was hit in the living room area because she had been lying but did not recall the details of any fib. This event occurred prior to any of the boiling water incidents. She described her head as being cracked open and there was significant bleeding coming from her head. C.G. testified that they took her into the bathroom where she kneeled and put her head on the toilet seat and they sprayed rubbing alcohol on it. Detective Skelton conducted a search on August 16 and seized a glass vase from the hallway closet.

[106] Punch to the Face: C.G. testified that she recalled J.R. telling her to get the sleeping bag from the balcony during a thunderstorm. She testified that J.R. threatened to take a metal tray outside into the lightning but she could not recall anything else about this incident until her memory was refreshed by her prior trial testimony. The details were vague.

[107] Whipping Incidents: While C.G. adopted her prior testimony that she was whipped by J.R. and C.A., she was unable to describe any particular incident in detail. She simply agreed that she was whipped by both accused as a form of punishment for lying to them. She recalled that after her back was burned she was whipped with an electrical cord, sometimes by both of them. C.G. claimed that it was really severe and she was whipped until it was bleeding.

[108] In cross-examination, C.G. agreed that she exaggerated when she told police in her statement that she was “whipped like Jesus”. This was after she took money out of C.A.’s purse. Her admission that she exaggerated to this extent and on other various crucial issues again enhances my trepidation about C.G.’s reliability as a valid historian.

[109] Dr. Scilley did not observe any marks consistent with whipping injuries. There is some evidence from Dr. Lewell with respect to his observations of C.G.’s right inferior scapula area and some circular marks or scarring, however, I am not satisfied that the evidence supports the nature or etymology of these injuries. The evidence is lacking as to its attribution and whether the whipping was caused by either accused. Further, Dr. Lewell did not observe any injury or gash to her head that C.G. claimed was eight inches in length. I am unable to accept C.G.’s evidence and description of this injury. The absence of confirmatory medical evidence does not assist the reliability of C.G.’s testimony on these points.

[110] Vegetable Peeler: Frankly, the use of the vegetable peeler poses significant concerns. While I find that C.A. vacillated in her testimony on this subject and I reject her evidence on point, I accept that according to C.G., the vegetable peeler was used by J.R. to excise old dead skin or scab from the burn wounds in the form of some first aid.

[111] Here, I accept C.G.’s testimony that she asked J.R. to use the peeler to take off the dead or infected skin. She testified that J.R. used cotton swabs and Brita water when he used the peeler on her. On C.G.’s own evidence, it is uncontested that the use of the peeler to remove dead skin was done consensually. Even after the Crown’s cross-examination of her own witness, C.G. could not recall the vegetable peeler being used on her for any reason other than to remove dead or infected skin. C.A. could not remember why J.R. did this to C.G. although her explanation or lack thereof, as to why the vegetable peeler would be found in the bathroom does not make sense.

[112] As mentioned, C.G. was entirely consistent in her belief that the use of the implement was done in an effort to promote first aid and not inflicted for any other purpose. The suggestion that a vegetable peeler would be used in such a manner defies common sense and is repulsive. I am satisfied that on the evidence the actus reus of an assault with the vegetable peeler in this manner is an assault perpetrated on C.G..

[113] As illogical and warped as that may be, and while highly improbable that a vegetable peeler would be used for the innocent purposes described by the victim. On C.G.’s evidence, I am not satisfied beyond a reasonable doubt that the requisite mens rea has been established.

[114] C.G. also described J.R. putting lighter fluid on her left shoulder on the same day that he had poured hot water on her. She could not remember why he did that although she believes she was in the bedroom at the time. He then lit the lighter fluid with the Zippo lighter and caused a fire which he then blew out. I am not satisfied that there is confirmation of this injury from the medical evidence and I cannot accept C.G.’s inconsistent and equivocal testimony on this issue.

[115] C.G. testified that J.R. poured bleach or Vim down her throat. She provided differing versions of this incident. Dr. Scilley was also asked about damage to one’s throat from ingesting chemicals. His evidence was that any damage is dependent on a number of variables, including the concentration of the chemical and the treatment and intervention.

[116] Indeed, had J.R. actually poured bleach or Vim down her throat, one could readily conclude that the act would have caused severe symptomology and require some immediate medical assistance. The activity described by the witness does not accord with any of her complaints at the hospital or observations made by Dr. Sewell. I reject C.G.’s testimony on this point.

[117] Section 274 of the Criminal Code and related jurisprudence specifies that corroboration for the sexual offences alleged in this case is not required. Leaving aside the numerous recantations and the explanations offered for them, I find that there were significant internal and external inconsistencies in C.G.’s evidence and she fabricated some of her testimony. For the concerns expressed here, I am unable to accept C.G.’s testimony as credible and reliable without other evidence capable of some confirmation.

[118] That being said, in my opinion, it is likely and probable that the cause of some or all of the injuries to C.G., the whipping, lighter burns, assaults or assaults inflicted with various weapons or objects while at the Conway Drive apartment were inflicted by J.R. with C.A.’s participation.

[119] However, an examination of the evidence, the peripheral circumstances, the actions of the parties, along with C.G.’s testimony, with my consideration of the third branch of R v. W.(D.) yield a reasonable doubt concerning the central issue of whether some of these events actually occurred or who inflicted the injuries. At the end of this exercise, I cannot conclude what actually happened. Thus, I am left with a reasonable doubt with respect to the aforementioned counts.

Aggravated Assault

[120] For C.A. and J.R. to be found guilty of aggravated assault, the Crown must prove that between September 1, 2008 and August 13, 2011 they intentionally applied force to C.G. and that the force they intentionally applied wounded, maimed, disfigured or endangered C.G.’s life.

[121] I have rejected much of C.G.’s evidence and am unable to conclude beyond a reasonable doubt that an offence occurred based on her version alone. Even if such confirmatory evidence is ascertained and accepted, I still must assess the totality of the evidence that I do accept whether the Crown has satisfied their onus beyond a reasonable doubt.

[122] C.G. provided two versions. She inflicted the burning injuries to herself as a form of punishment. Or, these burns were caused by the actions of the accused as a form of discipline for her behavior.

[123] C.G. described three occasions when she was inflicted with boiling water by the accused. She was in the kitchen when J.R. used the kettle and poured hot water down her left shoulder and it also splashed onto her neck. C.G. testified that on another occasion J.R. poured boiling water onto her back from her shoulder almost down to her tailbone. She also received some injury to her chest area. This happened in the kitchen and again, the hot water came from the kettle. The third occasion of boiling water inflicted on her occurred in the bathroom.

[124] C.G. testified that C.A. was present but not always directly involved. She believed the hot water was poured on her because she either lied or was touching something of Jonathon’s or she was not listening to them, but she could not remember the specific details. She claimed that she told J.R. what he always wanted to hear and if she had said, for example, that she had not touched his computer, he would have burned her. She added that J.R. told her that he was going to use the kettle on her. He placed his hands on her shoulders and told her to take her clothes off and she eventually acquiesced. J.R. actually used the kettle and poured the boiling water on her and it was again very painful. C.G. testified that she felt scared and nervous but could not remember trying to get away.

[125] On one or more of these occasions, (which I confess still remains obscure due to the various versions), according to C.G. she was punished with the boiling water for not having properly performed cunnilingus on C.A.. Similarly, on one occasion when the burns were inflicted upon her, C.A. stood by while C.G. started to roll around on the floor to get away. C.A. later held her down by her shoulders.

[126] C.G. testified about a third incident where boiling water was poured on her. She claimed that C.A. participated and J.R. was present. C.A. told C.G. to get into the bath tub and C.A. told J.R. to put the kettle on. At first, C.G. could not get into the bath tub because her back was hurting from the previous burn injury, however she eventually managed to do so. In any event, J.R. went into the kitchen and put the kettle on and C.G. remained in the bath tub with C.A. watching her. C.G. testified that C.A. told her that she was going to put hot water on her. C.G. was scared and nervous and she testified that she did not try to get away because of her burned back. J.R. boiled the water and poured it onto the right side of her rib cage. This is the occasion where C.G.’s groin area was burned by the boiling water. She described the pain as “11 out of 10”. J.R. told her to take a cold shower. Subsequently, both C.A. and J.R. sprayed rubbing alcohol on her wounds. She did not want them to do so but they told her it would take the infection away. The application of alcohol onto the burn area caused her additional pain. C.G. added that during this latter procedure, both C.A. and J.R. were trying to be nice.

[127] C.G. described that burns to her shoulder, back and right side had all happened before the burns in the bath tub. Recall that C.G. also vacillated in her assertion that J.R. lit lighter fluid on her left shoulder on the same day that he had poured hot water on her shoulder.

[128] Although C.G. testified that the times she was burned with water were clear in her mind and difficult to forget, she was unclear on the specific details surrounding these incidents and her evidence was confusing.

[129] The Crown filed medical evidence and called Doctors’ Lewell and Scilley. In my opinion, both medical experts testified in a credible manner. They did not embellish their testimony and reasonably conceded points raised by defence counsel in cross-examination. I accept their testimony without reservation and their opinion evidence based on their observations and medical reports.

[130] Dr. Lewell was qualified as an expert in emergency medicine and qualified to give opinions with respect to traumatic injury, burns and other wounds and the physical impact of those injuries. His testimony demonstrated a significant amount of experience dealing with burns. Dr. Lewell was the emergency room doctor who cared for C.G. on August 13, 2011.

[131] Exhibit 2a depicts C.G.’s vaginal area. Dr. Lewell described the injury as a deep partial thickness burn with swelling to the labia and presenting with a significant infection. The wound continues down inferiorly from the top of her thigh through the vaginal area and onto her back. Dr. Lewell testified that the wound is consistent with boiling hot water being inflicted rather than from a flame or other type of burn injury.

[132] Exhibit 2c and 2d portray hot water burns on C.G.’s back and legs. Dr. Lewell testified that it was an infected burn of significant time duration and had partially healed. The wound track moves from front to back. In cross-examination, Dr. Lewell testified that the injuries on C.G.’s right flank and mid posterior, extending to the scapula could have been caused by one continuous burn event.

[133] Dr. Lewell testified that, in his experience he never saw a deep partial thickness burn to this extent resulting in extensive debridement and tissue destruction from tap water. At the time of C.G.’s arrival to hospital, the patient had presented with wounds associated with a powerful and pungent odour that required special ventilation being established.

[134] Dr. Lewell found that C.G. had intermediate and deep partial thickness wounds covering 18% of her body surface area. The largest area of injury was on the right anterior thigh and lower back as depicted in Exhibits 2f and 2i. Smaller areas of burns covered the genital area, the left thigh, shoulder, neck area and right flank. He stated that the wounds were certainly consistent with the story of scalding, especially given the distribution. While difficult to pinpoint, he estimated that the burns had occurred some three to four weeks previously and there appeared to be no acute injury.

[135] C.G.’s burns required her to remain in hospital for 13 days. After her discharge, she had follow-up care and attended physiotherapy. All of C.G.’s wounds were not finally healed until the beginning of November 2012. She was left with permanent scars, especially on her right thigh. Dr. Lewell noted that open wounds such as what C.G. suffered are extremely painful until completely closed normally requiring narcotic pain medication to manage daily activities. Once healed, there is ongoing discomfort consisting of pain and itchiness for some time.

[136] Dr. Lewell testified that the duration skin would need to come into contact with the water to cause the burns on C.G. would depend on the temperature of the water at the time of contact.

[137] The neighbour, Rima Hassen testified about very hot water coming out of her taps in her Conway Drive apartment. In re-examination, she clarified that she was never burned from the tap water and that it was no different in temperature from the tap water in any other apartment building in which she had lived.

[138] Dr. Lewell considered C.G.’s version of events in his assessment. The defence submits that this account is also completely consistent with C.G.’s description of burning herself. When asked whether he believed that the burns to C.G. could have been caused by hot tap water, Dr. Lewell replied that he had never seen a burn of this extent from tap water, nor does he believe it’s possible. He estimated that near boiling temperature of water would be required to cause these burns.

[139] Dr. Scilley is a plastic surgeon with specialization in burn injuries. Dr. Scilley indicated that it was difficult to date burns with precision, but estimated that the injuries occurred approximately three to four weeks before C.G. attended at the hospital in August, 2011.

[140] Dr. Scilley also testified that the burns to C.G. were not full thickness burns, more aptly described as of a mixed depth nature, and thereby in the more painful category of burns. He also gave evidence that she was treated for the burns for over one year and that she would have permanent scarring.

[141] Both experts affirmed that they had seen serious cases of self-inflicted burns in their practices. Dr. Lewell indicated that it was not uncommon for patients who self-harm to repeat behavior. Both doctors testified that the pain associated with the inciting burn injury at the time of the injury would be one of the most excruciating, uncomfortable pain that one could possibly imagine. Although Dr. Lewell admitted that it was theoretically possible, in his opinion the patient would have an almost involuntary reflex to move away from what is causing the pain.

[142] Dr. Lewell opined that in this case, the burn location and pattern implies that there was a prolonged period of time that the patient was lying in the burning fluid which would be contrary to the natural human extinct to get up and try to minimize the pain. Further, on C.G.’s evidence in which she asserted that she harmed herself, she described kicking the kettle away with her foot. This action is consistent with the involuntary reflex to make the heat source stop.

[143] In cross-examination, Dr. Lewell explained that one of the burn patterns was consistent with C.G. having been in a supine position and inconsistent with her being erect. This appears to be a fundamental contradiction in the manner C.G. described in her self-harm scenario and confirmation of her description of being held down in a bathtub or on the floor when either Johnathan or C.A. poured boiling water on her.

[144] It is true that neither Drs. Scilley nor Lewell could exclude the possibility that the injuries C.G. presented were self-inflicted. Dr. Scilley opined that the self-harm scenario would be highly unusual given its repetition along with the amount of pain associated with these types of burns. While Dr. Lewell has seen self-inflicted injury many times in his practice, he had never seen an extensive wound like this caused by self-abusive behavior.

[145] C.A. testified that she saw the burn to C.G.’s back at the apartment when she came home from the mall and that she did not see the other injuries until this trial. Later, she testified that the only injury she knew about was the injury to C.G.’s back. She testified that she had not seen the burn on C.G.’s neck as shown in Exhibit 2e. She agreed that she would have been able to see the burn if it was there while she was living with C.G.. This evidence does not make sense when juxtaposed with the Doctors’ evidence that none of these burn injuries were acute.

[146] Dr. Lewell testified that this case was one he would never forget because of how profound both the wounds appeared visually, but also the smell from the wounds was extraordinary. This also speaks, in part, to my rejection of C.A.’s evidence concerning what burns she was aware of and when she was aware of them.

[147] Even considering C.G.’s varying versions and her description of how she inflicted punished by pouring the boiling water, the physical dynamics of the injuries and how they occurred do not correspond. C.G.’s testimony about boiling the kettle and pouring water on her and then kicking the kettle out of her own hand causing the burn to her ankle does not make sense. Her evidence of pouring boiling water on herself while standing, then putting the kettle back on its stand and then rolling around on the ground belies possibility and does not stand up to scrutiny. I cannot fathom how those calisthenics could manifest themselves in the circumstances. C.G.’s positioning in the bath tub when she says she inflicted herself with the boiling water does not correspond with the alignment of the injuries sustained. Indeed, the location of the wounds and their directionality from front to back and pooling of the burns on the lower back suggests that C.G. was in a supine position while the water was poured on her in the bathtub.

[148] The defence suggestion that the burns arose from hot tap water from a shower is rejected as mere speculation. While various suggestions were made, I have no evidence as to the exact temperature of the water in this apartment complex. In any event, based on the expert evidence, I reject any assertions that the hot water from the taps at the apartment caused the burn wounds, at least to the degree of injuries received here.

[149] I accept both experts’ clinical impressions and opinion as confirmation of the manner in which the burns were inflicted. Their testimony and the physical evidence, including the severity, location and distribution of the burns are inconsistent with the manner of infliction in a self-harm scenario. I accept their overall opinion that these burns were not self-inflicted.

[150] While C.G.’s recantations are problematic, even taking her self-harm scenario at its highest, her version is neither logical nor consistent with the nature, mechanism and position of the burn injuries sustained. I reject C.G.’s testimony of self-harm and accept that she was inflicted with boiling water by the accused. I reject C.A.’s evidence and I find that she was either a principal or party to the acts perpetrated upon C.G..

Conclusion

[151] I conclude that the medical opinion evidence is reliable confirmation of the manner of application of these wounds when juxtaposed with the application of logical inferences and C.G.’s relational positioning in order to have sustained these particular burn patterns. Having reviewed the entirety of the evidence, I am satisfied beyond a reasonable doubt that J.R. and C.A. had exclusive opportunity and did in fact, individually or in tandem applied boiling hot water on C.G.’s right thigh, back, neck, shoulder and in her groin area.

[152] Defence counsel did not take issue with the legal definition of the aggravated assault provision with respect to the injuries sustained in this case. Nevertheless, I am satisfied that the burns and resulting injuries sustained by C.G. and as described by the medical practitioners support the legal definition of wounding or maiming, as defined in the Code.

[153] A final thought. This case has been repeatedly referred to by the media, counsel and other participants as the “torture case”. “Torture” is defined in the Oxford Dictionary as: “The action or practice of inflicting severe pain on someone as a punishment in order to force them to do or say something.” Merriam Webster defines “torture” as: “the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure Synonyms include infliction of pain, abuse, torment, ill treatment, maltreatment, harsh treatment, punishment, persecution.”

[154] The Crown is not required to prove motive. That being said, the horrific acts of burning C.G. with boiling water was inflicted on her by both accused for some unknown purpose or reason. Indeed, the object or motivation behind these incidents still remains unclear but does not absolve both accused.

[155] For greater certainty, I have reached the conclusion that there were at least two distinct incidents where both accused deliberately and intentionally poured boiling water on C.G.’s body resulting in the burn injuries shown here. Even with some debridement, I accept that the presentation of the superior right flank wound was more fresh than the mid thorax burn injury. However, having rejected the bulk of C.G.’s testimony and notwithstanding the grave injuries and the narrative of these events; I cannot find a pattern of behaviour that leads me to conclude that there was a systemic or prolonged series of abusive acts or assaults or for that matter any torture inflicted by either accused upon C.G..

Disposition

[156] I am satisfied beyond a reasonable doubt that J.R. intentionally poured boiling water on C.G. resulting in horrific injuries. I conclude that C.A. acted as a principal or aided and abetted J.R. as a party to the offence of aggravated assault.

[157] I find C.A. guilty of Count 1, namely, aggravated assault contrary to s. 268(2) of the Criminal Code, and not guilty of counts, 2, 3, and 4.

[158] I conclude that J.R. committed an aggravated assault on C.G., contrary to s. 268(2) of the Criminal Code and I find him guilty of Count 1. However, for all of the aforementioned reasons, he is adjudged to be not guilty of counts, 2, 3, 4, 5 and 6.

“Justice A. J. Goodman”

A.J. Goodman J.

September 22, 2015

COURT FILE NO.: 11173

DATE: 2015/09/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• AND -

C.A. &

J.R.

REASONS FOR JUDGMENT

Justice A. J. Goodman

Released: September 22, 2015

[^1]: For ease of reference, and without any intended disrespect, I have taken the liberty to refer to the principal Crown witnesses’ and both Ms. C.A. and Mr. J.R.’s first names in these reasons.

[^2]: See R. v. Chalice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); R. v. Morin (1988) 1988 8 (SCC), 44 C.C.C. (3d) 193 (SCC).

[^3]: R. v. L.F (2006), 1024 (Ont. S.C.J.).

[^4]: As a result of C.G.’s complaint, she was removed from D.R.’s home and placed elsewhere, a locale unknown to D.R.. Indeed, even to this day, D.R. is not aware of the assault allegation made against him by his sister and the reasons why C.G. D.R. was abruptly removed from their home in January 2015.