CITATION : R. v. D.D. and S.D.1, 2016 ONSC 7249

COURT FILE NO.: CR-13-7668-0000

DATE: 2016/11/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.D. and S.D.1

M. Dufort, M. Boyce for Crown

R. Carew, for D.D.

A. London-Weinstein, for S.D.1

HEARD: September 8 to 24, 2015, October 26 to 29, 2015, and December 16 to 17, 2015.

April 25 to May 6, 2016. July 18, 2016 to August 7, 2016 submissions in writing.

Subject to any further Order by a court of competent jurisdiction, an Order pursuant to S. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

REASONS FOR JUDGment

MARANGER J.

Introduction:

[1] On February 12, 2013, the Ottawa Regional Police Service responded to a call to an ordinarily quiet middle-class suburban neighbourhood in Kanata. The call concerned the report of a lost 11 year-old boy.

[2] The boy was A.J. D (“A.J.”). Before the police arrived, he knocked on the door of a neighbour, R.M.. He looked half starved, she gave him two glasses of water and he offered her money to let him stay at her home. She called the police who told her to bring him home. She met the police just outside of the child’s home.

[3] The first officer on the scene met the neighbour who found the child. At this point, A.J. was lying in a snow bank complaining of a sore back. She asked him to step into her police car but he wouldn’t. She called an ambulance. The boy’s father and the ambulance arrived at about the same time.

[4] The father spoke to the police officer, he told her that he was an RCMP officer. He also detailed the difficulties they had with A.J.’s behaviour and the history of those problems. The officer said initially she felt badly for the father.

[5] A.J. was then placed in the back of the ambulance where a paramedic removed his clothing. The officer said “he looked like he had just come out of a concentration camp.” He was covered in scars, bruises, and was skin and bones. She arrested the boy’s father.

[6] This turn of events and arrest set into motion the discovery of a horrific story about a defenceless child who had been severely abused and ultimately tortured at the hands of his father, while his stepmother seemed to have stood idly by.

[7] What catapulted the story to the forefront of the media’s attention was the fact that the father, was a veteran Royal Canadian Mounted Police officer, and the acquiescent stepmother a highly ranked civil servant.

[8] The criminal investigation that followed led to the two accused before the court facing the following charges against the victim, A.J. D:

I. D.D. and S.D.1 stand jointly charged that, between September 1, 2012 and February 12, 2013, they committed three counts of aggravated assault and one count of forcible confinement.

II. D.D. is further charged that, between those same dates, he committed sexual assault causing bodily harm, failed to provide the necessities of life, assault with a weapon namely handcuffs, assault with a weapon namely a wooden stick, assault with a weapon namely a barbecue lighter, careless storage of a firearm, and careless storage of ammunition.

III. S.D.1 is further charged that, between the same dates, she failed to provide the necessities of life, and committed assault with a weapon namely a wooden spoon.

Overview of the trial:

[9] The trial of this matter ran several weeks. It spread out over a 10 month period and included testimony from 35 witnesses, audio/video statements from both accused, audio/video statements from the child, medical records, photobooks, expert reports, with over 80 exhibits filed.

[10] It should be said at the outset, that the evidence presented by the prosecution at this trial, to establish beyond a reasonable doubt, that the child A.J. was abused, confined, burned, beaten, assaulted, and starved was unequivocal and overwhelming.

[11] What became the central issue for the court to adjudicate was the degree of blame, the degree of criminal responsibility, if any, for the atrocities visited upon this defenceless boy.

Position advocated on behalf of D.D.:

[12] Counsel representing the accused D.D. advanced the position that the offences committed against the child only took place within a five to six week window namely January to February 12, 2013.

[13] It was also submitted that the Crown had not established that a sexual assault occurred and that some of the counts in the indictment should be stayed by application of principles in Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[14] Furthermore, counsel also argued that when the acts were committed, D.D. suffered from a mental disorder (post-traumatic stress disorder) and was in a state of dissociation which prevented him from appreciating the nature and quality of his acts and / or from knowing they were wrong. As a consequence, counsel submitted that the court should find the accused D.D. not criminally responsible (NCR) pursuant to section 16 of the Criminal Code, R.S.C. 1985, c C-46.

[15] To this end, the accused testified as did a clinical psychologist, who was treating the accused from the province of Québec. The clinical psychologist also provided opinion evidence that the accused should be found not criminally responsible for what he did to his son.

Position advocated on behalf of S.D:

[16] S.D.1 did not testify. Counsel on her behalf submitted that the court should find her guilty of the offence of failing to provide the necessities of life, and that it was open to the court to find her guilty of one count of assault with a weapon (a spoon).

[17] Counsel further submitted that the court should acquit her on all other counts on the basis that the Crown has failed to prove her guilty of these offences beyond a reasonable doubt. Counsel also argued that in effect there was no or insufficient evidence to support the proposition that she acted as a principal in the forcible confinement and aggravated assault charges; and furthermore there was no basis to find her guilty as an aider or abettor either by omission or commission in relation to these offences.

Position of the Crown:

[18] The Crown submitted that both accused should be found guilty of every offence upon which they have been tried.

[19] The Crown’s position is that the NCR defence should be rejected, that the opinion offered by the psychologist should be afforded no weight based, in part, on the expert being biased and lacking the expertise to provide the opinion.

[20] It was further submitted that the factual foundation in support of the NCR opinion and for the defence to have any real chance of success would necessitate a finding that the abuse took place within a five to six week window.

[21] The Crown argued that the evidence, when considered as a whole, demonstrated that a pattern of abuse existed from the time the child began living with the two accused in 2009, escalating dramatically once the child was being home-schooled in September 2012, and that the offences occurred as they are set out in the indictment namely between September 2012 through to February 2013.

[22] The Crown further submits that they have proven all charges against S.D.1 beyond a reasonable doubt, on the basis that the evidence presented at trial supports the proposition that she was acting in common with D.D. on the offences where she is a co-accused. The Crown argues in the alternative, that S.D.1is guilty beyond a reasonable doubt by application of the party liability provisions of section 21 of the Criminal Code in that she aided or abetted him in the commission of those offences.

Issues to be decided:

[23] The primary issues to be decided by the court can be framed by the following questions:

a) What is the timeframe for the unlawful confinement, various physical assaults, and failure to provide necessities of life, and to what extent or level was the child abused?

b) Has the Crown established beyond a reasonable doubt that the accused D.D. is guilty of the offences charged in the indictment?

c) Has D.D. established that he was not criminally responsible on account of suffering from a mental disorder?

d) Has the Crown established beyond a reasonable doubt that S.D.1 is guilty of failing to provide the necessaries of life and assault with a weapon?

e) Has the Crown established beyond a reasonable doubt that S.D.1 is guilty of counts one to four on the indictment being the offences for which she is jointly charged with D.D.?

Preliminary analysis of the evidence and findings of fact:

[24] As indicated, this was a trial that lasted several weeks and involved 35 witnesses. I do not propose to offer a summary of every witness called but will endeavor to make the necessary findings of fact based upon an analysis of the evidence to enable meaningful reasons for this decision.

[25] The evidence at this trial can be divided into two general categories. First, evidence and testimony that I considered to be reasonably straightforward and while in some measure challenged by the defence, the least contentious as well as the findings of fact that were derived from that evidence.

[26] This would include but not be limited to:

• the testimony from the neighbours, police officers and paramedics who first appeared on the scene on February 12, 2013

• the testimony of the medical professionals who cared for and treated A.J.

• the evidence of Sgt. Butler who took the statements from both accused (the voluntariness of the statements were not challenged)

• the testimony and evidence from the principals and teachers who dealt with both A.J. and the Ds,

• Testimony from the officers who executed the search warrant, the officers responsible for the exhibits and the photographs taken at the family home and

• all of the exhibits filed in the course of the trial taken from the home, and finally the evidence of Dr. Xavier Plaus.

[27] I would categorise the second category of evidence as highly contested, that required specific findings of credibility and findings of fact derived from that testimony and evidence. These findings have greater impact upon the specific issues that the court has been called upon to adjudicate. This would include but not be limited to the testimony of A.J. D, the testimony of R.D., the testimony of D.D. and the evidence and testimony of the psychologist Karim Jbeili.

General Background of the D. Family.

[28] The following are uncontroverted findings of fact concerning the D. family history:

• D.D. is 45 years of age and was born on […], 1971 in the city of Achrout, Lebanon.

• He grew up in the 1970’s in war-torn Lebanon. He was the youngest of 6 children.

• He moved to Montreal, Canada in 1986 and initially lived with family members.

• When he was 19 years of age he met the mother of A.J., M.2 in Montreal.

• In the fall of 2001, D.D. was accepted into the RCMP and was stationed in Regina for a six-month training program. It was at this time that he discovered that M.2 was pregnant with his child.

• A.J. was born prematurely on […], 2002.

• The relationship between D.D. and M.2 was acrimonious and custodial arrangements with regards to the child were highly conflictual.

• In July 2003, D.D. married S.D.1 worked for the federal government in the department of Immigration and Citizenship.

• In 2006, because of the ongoing family law litigation with A.J.’s mother, D.D. would only have seen his son A.J. on certain weekends. As he put it, he gave up full custody. At this stage he had moved to Ottawa.

• M.2 died November 2009 when A.J. was seven years old. D.D. and S.D.1 took custody of A.J. and he moved to Ottawa and began his life with them.

• In February 2013, D.D. and S.D.1 had two other children: M.D (2 and one half) and M. (4 months old).

[29] The testimony and evidence presented at trial given by:

• R.M. and W.W. (neighbors who saw A.J. February 12, 2013)

• Constable Cindy Cybulski,

• Paramedics Jonathan Smith and Barnaby Beland

• CAS investigator Alain Corriveau,

• Sgt. Holly Watson,

• Constable Thornborow, (all first responders on February 12, 2013)

• Dr. Andrea Losier (emergency physician at CHEO who dealt with A.J. initially)

• Dr. Leigh Frazer-Roberts (pediatrician who treated A.J.) allow for the following conclusions and findings of fact:

• On February 12, 2013 Ottawa regional police services were dispatched to the Ottawa suburb of Kanata, to deal with a reportedly lost boy.

• Upon arriving initial investigators discovered A.J., and determined that he had escaped from the basement of his home located in Kanata where he had been tied up.

• His father D.D. was an RCMP officer who described the child as being difficult and hard to manage. He made a comment heard by Sgt Watson that he tied him up to prevent him from hitting others.

• He was described as looking as though he had escaped from a concentration camp: very small, with a shrunken skull, looking half starved.

• Once the child was seen closely by first responder police officers the father was cautioned and arrested.

• A CAS investigator attended the family home on February 12, 2013 at 9:30 pm and apprehended the couple’s two other children. S.D.1 denied being abused by her husband. The two children appeared very well cared for. A.J.’s bedroom looked like a spare room it did not look like a typical 11 year olds bedroom. She was shocked by the arrest of D.

• The medical professionals who treated A.J. at the hospital described that he suffered from severe malnourishment (weighing 51 pounds which was below the 5th percentile for a seven-year-old boy), that was not caused by disease but from a lack of nourishment, that it took several hours to catalogue all of the injuries on his body, that it was the most horrific case of abuse the emergency physician had ever seen in 11 years of working at the Children’s Hospital of Eastern Ontario. The injuries included burns to his penis and testicles as well as burns to various parts of his body. That there were older scars to his genitals, linear marks throughout his body caused by some type of weapon there are certain pharyngeal lesions all around his ankles and wrists likely from being tied up, multiple linear lesions to his genitals and penis that were well-healed. The precise date/age of the injuries could not be stated.

• The photographs taken at the request of the doctor and the evidence of the medical professionals support the proposition that A.J.’s private parts were purposely burned - burn scars can be seen directly on his penis, and on his legs in the area of his genitals. He was covered in bruises, it is clear that he was tied up, and it is also clear that he was deprived of food to the point of being extremely underweight and where his health was compromised. See photo book marked as exhibit 10.

[30] On February 13, 2013 Sgt. Tracy Butler interviewed both of the accused, they were properly cautioned and advised of the various charges that they faced as a result of the injuries to their son. The admissibility and voluntariness of the statements was not challenged. In the statement by D.D., he provided the following information:

• He advised Sergeant Butler that he had a great deal of difficulty managing the behavior of A.J. That he misbehaved constantly was a troublemaker at school. That he told lies and would steal. D.D. also said that he was a sexually active child from the age of 6 and that he would touch girls inappropriately at school.

• D.D. advised that he tried all conventional methods of controlling his behaviour, and even sought the assistance of a psychologist.

• D.D. also explained that he was on leave from his work at the RCMP due to stress.

• Because his behaviour did not improve while A.J. was at school, out of desperation D.D. and S.D.1 opted to home school him.

• D.D. advised the officer that the “confinements” started long before home schooling.

• As a punishment, D.D. would make A.J. sleep in the basement with his leg handcuffed in the basement to a wooden pole.

• D.D. also explained that A.J. was able to escape by picking the lock, and that he watched pornography on D.D.’s computer.

• D.D. admitted to burning A.J. around his penis and testicles and said to the interrogator that it began 6 months before, when the homeschooling began. That he used a barbecue lighter. He explained to the officer that he did it all at the same time.

• D.D. explained that he would feed A.J. peanut butter pita sandwiches two times per day and sometimes Gatorade.

• D.D. categorically denied committing any type of sexual assault upon his son.

[31] S.D.1 provided the following information in her statement:

• In the fall of 2012, commencing in October, S.D.1 was on maternity leave from her employment as a director with Citizenship and Immigration Canada. She gave birth to her 3rd son in October.

• Apart from A.J. being in the home, in February 2013, S.D.1 had two other children with D.D., a 2 and a half year old boy and a four month old boy.

• A.J. was a very difficult child. She and her husband, D.D., tried various forms of punishment such as: times out, removing all toys from the bedroom, standing against the wall.

• S.D.1 explained how the homeschooling came about, indicating that it was the suggestion made to them by Doctor Plaus, a psychologist who had treated A.J...

• She explained that A.J. had been diagnosed with conduct disorder by Dr. Robeille.

• She explained the difficulties that they had with A.J. in school, the decision to start homeschooling; and that D.D. was going to be responsible for the homeschooling.

• She explained that the situation was extremely stressful, that A.J. had put tremendous stress on everyone in the house. She reported catching A.J. hitting M. once but that it was not a big deal, just something between siblings.

• She denied ever hitting him with a wooden spoon, or otherwise admitted to only having pushed or grabbed him.

• She indicated that she knew her husband hit A.J., however she emphatically denied any knowledge of his ever burning the child. When confronted with the evidence her reaction was disbelief.

Evidence seized from the home:

[32] The Ottawa regional police services executed a search warrant at the D family residence. Exhibit 2 was a photo book containing 297 photographs of various areas of the home and items found in the home. Several of the items were referred during the testimony of some of the witnesses became exhibits during the trial.

[33] A lap top computer and cellular telephone belonging to D.D. were seized. These were examined by Detective Constable Michael Villeneuve a forensic expert in computers. He testified about some of the research/articles that were looked up including:

• January 9, 2013 how to treat a child for a lack of nutrition,

• Is Gatorade good for a dehydrated person.

• Is Gatorade good for children.

• On December 31, 2012 can you give antidepressants to a child with OD.D.

• On June 4, 2011 parenting boy with OD.D.

• Can I give my son up for adoption.

• Psychopathic behaviour of children.

• My nine-year-old child is vindictive.

[34] The research extracted from the computer and referenced by this witness was filed as Exhibit 30.

[35] He also testified that there was almost no evidence of any downloading of pornography on this laptop.

[36] He testified that he extracted text messages and videos from the cellular telephone. Three of the videos were of A.J. D in the basement taken January 3, 9 and 27 of 2013. The content of these videos will be reviewed in detail later in this decision.

[37] The text messages included those exchanged between D.D. S.D.1 on January 26, 2013. The messages concerned D.D.’s attendance at a hospital for an injury to his hand as a result of striking A.J. D in the mouth and breaking one of his teeth. The exact content of these exchanges was filed as Exhibit 31.

[38] Exhibit 2 photographs 232 to 234 show an opened box of Winchester law enforcement ammunition/cartridges left in an unlocked dresser drawer. It was admitted that these belonged to D.D.

[39] Exhibit 2 photographs 263 and 264 show a pellet/ rifle leaning up against the pantry. It does not have a lock mechanism and is in plain view. It belonged to D.D.

[40] Detective Sgt. O’Brien, a qualified Firearms Examiner, testified that on February 19, 2013, he examined the pellet/rifle and it did not have a trigger lock and had a pellet in the chamber. It did have a safety mechanism. He testified that there were no specific regulations on the storage of a pellet gun. He said that it was a weapon that could cause injury and that it was a firearm within the definition of the criminal code, based upon the velocity of a pellet when the gun was fired.

A.J.’s behavioural problems:

[41] The Crown presented evidence relating to A.J.’s behaviour while attending two different elementary schools; E[...] and S[...]. The evidence consisted of the testimony of various teachers and a principal. A series of emails that were exchanged between school officials and the D’s were also filed through these various witnesses.

[42] The witnesses called from the two schools were: M.W., R.T., S.D.2, J.H., J.G., D.P. and N.D.. I come to the following conclusions based on their testimony and the emails filed:

• Generally speaking, the teachers and school principals in large measure described A.J. in a positive light. The words polite, cooperative and respectful were commonly used.

• Some of the teachers and one principal indicated that the extremely troubled behaviour they expected to encounter while teaching A.J. based upon the information / conversations with the parents simply never materialized.

• The evidence suggested that relatively minor incidents of poor behaviour were blown out of proportion by the parents.

• The testimony from the various school officials and teachers left me with the impression that the parents were more challenging to deal with by the teachers than was A.J. They explained that they had meetings with an unusually high degree of frequency with A.J.’s father, D.D..

• Specific incidents at the school were highlighted:

• The taking of a toy from another child’s school bag and then lying about how the toy was obtained,

• Changing a grade 4 to a grade 4+

• Touching the hair of a young girl,

• Taking a pencil and popsicle sticks (meant as rewards) from a teacher’s desk,

• Writing the word sex during one of his classes.

• A.J. was not a model student.

• The email exchanges between both D.D. and S.D.1 and the teachers suggest that these relatively inconsequential transgressions became larger than life.

• The testimony from most of the teachers indicated that A.J. seemed very healthy, well fed, was given appropriate lunches to come to school with, and did not look like a battered child. That being said however, in the case of R.T. who taught A.J. between February and June 2012 (grade 4) for parentheses grade 12, she testified that he did come to school one day with did testify that he came to school with a bruise on his cheek that was purplish she never asked him about it and he never said anything about it.

• The principal and teachers from S[...] fully expected that A.J. was going to return to begin grade 5 in the fall of 2012.

• None of the educators expressed the opinion that homeschooling would be something that would benefit A.J. In fact, they all expressed the view that his behaviour certainly did not warrant or necessitate being homeschooled.

[43] In terms of how this evidence impacts on the ultimate decisions to be made by the court, I would simply say that as it relates to the difficulties and problems relating to A.J.’s behaviour, my personal impression is that he was of no more than average difficulty as a grade school child. The evidence does support the proposition that both parents S.D.1 and D.D. obsessed over his behaviour and were very strict parents.

[44] Dr. Xavier Plaus, a psychologist specializing in child psychology, testified that he saw A.J. for the purposes of an assessment in December 2009 and that he prepared a report in June 2010. It was prepared in connection with a custody dispute between the D’s and the maternal grandparents. In the report, he concluded and diagnosed A.J. as suffering from post-traumatic stress, attachment disorder, and oppositional defiance disorder.

[45] He explained some of the behaviour that would be associated with these disorders, notably from attachment disorder: controlling and manipulative action (lying), indiscriminate affection to strangers, overly affectionate towards the parents, superficially engaging and charming behaviour (perceived as “phony” by his parents). From oppositional defiant disorder: active defiance and refusing to comply with adult requests and rules, deliberate attempts to annoy people, blaming others for mistakes, speaking in a mean fashion when angered.

[46] Dr. Plaus testified that he met with the family some 14 times at their home and that he felt they exaggerated A.J.’s misbehaviour. He explained that the day that they identified A.J.’s main behavioural problems as lying and stealing, D.D. and S.D.1 were obsessed with his stealing, even though the stolen things were minor items.

[47] Dr. Plaus explained that the father was mainly concerned with A.J. becoming a sexual predator and that this was based on A.J. indiscriminately hugging girls at school. Dr. Plaus explained that this had more to do with attachment disorder than a risk of his becoming a sexual predator and that the father forced the child to have to take cold showers for this hugging. He testified that none of the tests he performed supported the proposition that the child was at risk of becoming a sexual predator.

[48] It was Dr. Plaus’ view that the punishments being imposed on A.J. were disproportionate to the behaviour.

[49] Dr. Plaus explained that he learned of A.J. having to sleep in the basement as a punishment, that he was stunned by this, and confronted D.D. who didn’t think anything of it. The doctor told him that if he found out it that this happened again, he would contact the Children’s Aid Society.

[50] He testified that he advised them that homeschooling was absolutely not a good idea. In the case of A.J., this was especially so, because the child needed to develop his socialization skills as they were underdeveloped. School was a safe environment for this child.

[51] With respect to the issue of A.J.’s behaviour, the Defence called K.Z. a foster mother for the CAS. She gave evidence as to how difficult A.J. was when he was placed into her care in March 2013. In fact, she indicated that he was the most difficult child she had ever dealt with in her 10 years as a foster parent.

[52] She testified that he was not able to listen to authority, that if he didn’t get his way, he would hide in his room or overreact. She felt very frustrated in dealing with him. At one time, he pointed his finger at her in the shape of a gun as though he was going to shoot her. She also explained that at times, he would not stop talking and would be very annoying. She said that he would have nightmares in the middle of the night, and awake everyone in the house.

[53] She further indicated that he would be disrespectful, difficult about eating, did not listen and would always be trying to seek attention. Eventually, in April 2013 she requested to be replaced. She couldn’t handle him. As to his being an attention seeker, the witness concluded by saying “I think he wanted to be loved, I think he wanted a family.”

Question 1: What is the timeframe for the unlawful confinement, various physical assaults, and failure to provide necessities of life and what was the extent or level of abuse?

[54] The position advanced on behalf of the accused D.D. is that he acknowledges responsibility for a specific period of time where his child was abused namely January to February 12, 2013 and for only very specific incidents of abuse.

[55] The Crown takes the position that the confinement, assaults and abuse on the child by the father began to worsen during a trip to Florida in August 2012, escalated while he was being home schooled in September 2012, and continued through to February 2013.

[56] The determination of the first issue impacts to some degree on the NCR defence, possible findings respecting each count, and could impact on the sentence imposed in the event of a conviction.

[57] The determination of the specific issue requires an analysis of the evidence of and testimony of A.J. juxtaposed to the testimony and evidence of the accused as well as a consideration of the corroborating evidence in support of each version.

[58] I did so bearing in mind that the burden is on the Crown to prove the case against the accused beyond a reasonable doubt. While findings of guilt are available for many counts in the indictment against the accused based on what Mr. D has accepted as true (leaving aside the NCR defence for the moment), I must nonetheless be convinced beyond a reasonable doubt that the Crown has proven the timeframe and severity of the crimes that they allege against the accused.

[59] To be convinced beyond a reasonable doubt means to be close to certainty that an offence has been made out before convicting someone of the offence (R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320). In circumstances where the evidence manages to convince the decision-maker that an offence probably or likely occurred does not meet the burden required for a conviction beyond reasonable doubt, and requires a finding of not guilty.

[60] What I have concluded is that the Crown has established beyond a reasonable doubt that some of the abuse and unlawful confinement of A.J. began very shortly after he was being home schooled in September 2012. It then escalated ultimately reaching its very worst level in January and February 2013. In truth, the evidence when taken as a whole supports the proposition that there was corporal punishment used on A.J. that bordered on abuse well before he was homeschooled in September 2012.

[61] As to the level of severity of the assaultive behaviour, I am convinced beyond a reasonable doubt that at least one episode of burning occurred in September 2012. I am also convinced beyond a reasonable doubt that there were assaults and corporal punishment that crossed the line spread over at least the six month period referenced in the counts listed in the indictment.

[62] While the credibility of A.J. D. particularly his testimony at trial was susceptible to attack and criticism, it is the corroborating evidence in support of when the confinement began and when the first serious assaultive behaviour began, that has convinced me beyond any doubt that the start date was the fall of 2012, and not as a defence would have it in January 2013.

[63] I found D.D. to be a witness who lacked credibility on the issue of the timing of the unlawful confinement, assaults and the frequency/severity of the assaults. The basis for this finding will be elaborated upon when his evidence/testimony is analysed.

[64] I also found that the reliability of his testimony at trial was substantially undermined by amongst other things: his initial statement to Sgt. Butler, the information he provided to the child’s treating psychologist, Dr. Plaus, the cell phone evidence and the medical evidence.

[65] I did consider the testimony of R.D.. to the extent that it may have corroborated the version of the accused on this issue and found it only marginally relevant. He testified to seeing A.J. at certain times in the fall of 2012, his testimony was far from clear he acknowledged being bad with dates. Taken at its highest he would have visited the home in Kanata on a few occasions in the fall of 2012 and did not notice anything out of the ordinary regarding the treatment of his nephew A.J.

A.J. D’s evidence and testimony:

[66] The evidence of the complainant child in this case included statements that were provided through police interviews conducted on February 13, 19 and June 13, of 2013. These interviews were admitted pursuant to section 715.1 of the Criminal Code.

[67] At the time of trial the child was 13 years of age, and he testified over the course of six days.

[68] The evidence of A.J. and my primary findings of fact relating to that evidence come from the following four sources:

a) The medical evidence taken from CHEO (Children’s Hospital of Eastern Ontario) and the photo book of the injuries.

b) The evidence taken from the police interviews or statements made in February and June 2013.

c) Cell phone videos taken by D.D. of A.J. in the basement of the home.

d) A.J.’s testimony at trial.

• Medical evidence photo book

[69] The medical evidence in this case included exhibit 6, the emergency medical records from CHEO which included a diagram that mapped the location and nature of the injuries on A.J.’s body. There was also a photo book filed as Exhibit 10 with photos of all of the injuries: they disclosed a half starved young boy (a diagram showing that his weight was below the 5th percentile for a child his age), whose body was replete with injuries which included: burn injuries many to his genital area, one directly on his penis and testicles, scars, abrasions, bruises, swollen extremities, as well as healed scabs. I reiterate that the veteran emergency physician at the CHEO said it was the worst case of child abuse she had ever seen.

• Police interviews with A.J.

[70] Detective Joanne Marelic conducted interviews with A.J. D which were video/audio recorded. The first two were in the month of February, 2013 taken while A.J. was still in the hospital and the third on June 13, 2013 when he was out of the hospital. In those initial interviews A.J. provided the following evidence/information, and in some instances allowed me to draw certain conclusions:

• In the initial interviews while still hospitalised, it was clear to me that A.J. wanted to minimize what his father had done to him.

• He indicated that he did not want his father to get into trouble, pleading with the officer not to blame him, that it was he who had stolen and lied. A.J. said that his father was trying to correct his behaviour.

• A.J. then explained that he was confined and compelled to sleep in the basement about six months before his interview (August/ September 2012).

• A.J. described how he was confined in the unfinished basement of the family home including being chained to a wooden post, how he escaped the handcuffs to sneak upstairs and get food, which resulted in stronger restraints being used. He described how he was chained while he slept and the circular marks/injuries on his wrists and above his ankles being caused by the restraints.

• A.J. described sleeping in an orange and grey sleeping bag.

• A.J. described being hit with a piece of wood which coincided with injuries to his back.

• A.J. described being punched in the mouth, which caused a previously broken tooth to break again, and causing an injury to his father’s hand. A.J. said that this happened in January or February 2013.

• A.J. explained what he believed S.D.1 knew at the time, and how she tried to restrain the father and calm him down but that he wouldn’t stop.

• A.J. initially indicated that S.D.1 hit him with a wooden spoon and then said he wasn’t sure whether she did or not. He said that she would punish him, but she was less harsh than the father.

• A.J. explained how his father burned him underneath his “zizi,” the code word he used to describe his penis and that he used a barbecue lighter. D.D. would let the tip get very very hot and then stick A.J. with it. A.J. indicated that it first occurred 6 months ago.

• A.J. testified that the punishment in question was because his father thought he was having sensual thoughts, something his father said a young person his age should not have. A.J. explained that this was done to him a few times.

• In the interview of February 19, 2013, A.J. advised the interviewing officer that the first time he remembers being tied up was when he was still in school, and not being homeschooled.

• A.J. described both the piece of wood and wooden spoon that he was hit with.

• In the interview of June 13, 2013, A.J. presented himself differently than in the February 2013 interviews. He looked healthier, he had gained weight, he seemed more confident. He wanted to be rewarded for talking to the officer by being provided a mug.

• A.J. testified that his father and mother were almost always together and that they only fought once or twice. A.J. explained that she would try to calm his father down. A.J. said that she sometimes saw what his father would do to him and that his father would also tell her what he had done to him.

• A.J. said that his mother would bring him food downstairs. His father would give him peanut butter and bread at least once a day.

• A.J. then described his father putting A.J.’s head underwater to punish him, once in the sink and once in the toilet. This was said to have occurred in the upstairs bathroom. He described his father choking him by lifting him off the ground and that this also happened in the bathroom.

• At one time, his father threw him down on his head and almost broke his neck and that he once left A.J. in the middle of the highway one time while going to Montréal.

• A.J. testified that his father made him do push-ups continuously and at a one point in time, put his foot on his head causing it to hit the floor resulting in his nose to bleed and that this occurred in the kitchen.

• At one point during the interview, A.J. explained to the officer that he had given a false story about how he had first broken his tooth, that A.J. did not trip accidently, that his father kicked him in the back in the garage and he hit his face on the floor thereby breaking his tooth.

• That the second time the tooth was broken was because A.J. was punished for not doing his homework properly.

• That his father also hit him in the arm with a hanger for not doing his homework and that this occurred at the same time as being punched and having the tooth broken a second time. That occurred on the same day sometime in January or late December.

• A.J. advised the interviewing police officer that he was tied with handcuffs on his hand and on his foot while they were on a family trip to Florida. This was on the second trip to Florida. At one point, they would not let him go to the bathroom so he peed on himself.

• A.J. testified they would leave him tied up while they would go to the beach and that he was not allowed any food or water.

• A.J. explained that he started getting burned by his father after they came back from Florida. That the burning took place in the basement.

• A.J. also indicated towards the end of the June interview that he had slept sometimes in the basement while he was in school, but that it stopped for a long while then it started “like full full power after that” when he was being homeschooled.

• Cellular phone video evidence

[71] The Ottawa Police Services seized D.D.’s cellular telephone and home computer during the execution of a search warrant. The cell phone had video evidence of A.J. in the basement being interrogated by his father.

[72] The cell phone contained three separate videos. They were very difficult to watch. The viewer is left with images that are forever etched in the darkest, saddest recesses of that person’s memory.

[73] The videos were filmed by D.D. on January 3, 2013, January 9, 2013, and January 27, 2013.

[74] The video taken on January 3, 2013 shows A.J. quivering, wet, naked, with his hands tied behind a post. He is being grilled by his father about the various misdeeds he has purportedly committed. The father is speaking in the past tense.

[75] At one point D.D. says the following to A.J. “I don’t see the same person who came down here a month ago”.

[76] In the interrogation, D.D. told A.J. that he must renounce Satan, accept God, accept his family, because society, God and his family have had enough of him.

[77] D.D. interrogates A.J. about alleged sexual improprieties about allegations he made about others in the past. D.D. asks about whether his deceased mother ever made him fondle her. A.J. recounts his encounter with a girl named Kylie who he used to like in the seventh grade and how they kissed each other’s hands. He ultimately gets A.J. to “confess” to touching other kids in their private areas.

[78] In the video taken January 9, 2013, A.J. looks somewhat thinner and weaker than he did in the January 3 video. He is once again naked and tied to a post with his hands behind his back. It shows A.J. being interrogated about lying to his father and to his family. He promises never to lie again. D.D. tells him that even the smallest lie will result is his being in the situation that he is currently in. At one point during this video, D.D. videos the entirety of A.J.’s body. While not abundantly clear, there are visible marks/scars near and around the child’s genitalia.

[79] The final video was taken January 27, 2013. In that video, A.J. D looks emaciated, he has what appears to be hair growing on various parts of his body. The court learned through the medical evidence that hair growing in this fashion was a sign of extreme malnourishment. His hair is matted, he is missing part of one of his front teeth. He has what looks to be a cross or crucifix drawn with a magic marker across his chest. He has what appears to be a black eye. He looks terrified, weak and on the verge of collapsing.

[80] D.D. continues to systematically, calmly interrogate him about his lying, he charges him with having stolen chocolates from his brother. D.D. tells him that he will see hell, that he is a liar and a manipulator. D.D. tells him that A.J. stole the keys and that is why he finds himself where he is right now.

[81] During the exchange, the child is pleading with him for forgiveness begging to have his family back.

Trial testimony of A.J.

[82] A.J. D presented himself as an intelligent, brave 13-year-old who appeared to now harbour a justifiable amount of resentment towards his father for what happened to him.

[83] It is fair to say that at some points during his testimony he was prone to exaggeration, such as the number of push-ups he could do or was forced to do, the length of time he had been confined and deprived of food, or what occurred in the state of Florida in the summer of 2012.

[84] Counsel for D.D. advocated that A.J.’s testimony was unreliable, untrustworthy, and in some instances, simply false. He raised some of the difficulties with the child’s testimony, some of which was brought out during cross-examination. This included: that he was beaten over the entire 3 years, that he was starved for an entire year including times when he was not being homeschooled, the different accounts of how his tooth was first broken, that he was confined and starved the whole time while in Florida, that he was confined to the basement continuously beginning in September 2012.

[85] The photographic evidence respecting the family, the testimony of other witnesses including teachers, neighbours, and D.D.’s brother, justifiably undermine some of the claims made by A.J. in his testimony. For example, the teachers testified that he looked well-fed and healthy while he attended school. This undermines the claim that he was beaten for the entire three years and starved for at least one year.

[86] The photos taken in the fall of 2012 showed A.J. outside raking leaves. The evidence from the neighbours suggests that he was playing outside during the same time frame, which undermines the notion that he was confined continuously from September 2012 onward.

[87] I also accept the proposition that this was not a house of pure evil. There were times when the family seemed happy, where the father and son seemed to bond properly, where family gatherings were happy times. The photographs and some of the testimony support this proposition.

[88] The trier of fact can accept some, all, or none of a witnesses’ testimony. In the case of A.J. D, he was a child who was undeniably severely abused, and tortured. While I cannot say that each and every incident that he testified to in fact happened to him or happened in the precise manner he described, what I can say is that when A.J.’s statements to the police, as well as his testimony at trial, is analysed in concert with all of the corroborating evidence presented by the Crown, this allows for the following findings of fact respecting what D.D. did to his son A.J. D:

• In the summer of 2012, D.D. and S.D.1 decided that they would homeschool A.J., the reason for this (especially from the perspective of the father) was that this was the only way they could effectively control his extremely difficult behaviour.

• D.D. beginning in September 1, 2012 became A.J.’s teacher and disciplinarian. S.D.1 took on a significantly lesser role, but during the majority of the time i.e. September to February, she would have been at home on maternity leave.

• D.D. became obsessed by the notion that A.J.’s behaviour was out-of-control. He believed that he was a thief, a liar and an over-sexualized child who was at risk of becoming a sexual predator. The cell phone video evidence of January 3, 9, 27, 2013 and the testimony of Dr. Plaus support this conclusion.

• The confinement in the basement predates the homeschooling. D.D. was chastised by Dr. Plaus for using this as a form of punishment. A.J.’s evidence that he was confined to the basement, during at least part of the fall of 2012 is a fact that has been proven in my estimation beyond any doubt.

• Prior to September 2012, the child was also subjected to cold showers, and no doubt deprived of food from time to time.

• I accept that what A.J. said was done to him in his initial statement to the police in February 2013 occurred. At this stage in the case, he was minimizing what his father had done, he was pleading that his father not be blamed for what was done to him. In that statement, he said his father burned him on his genitals “six months ago” because of how he was looking at girls.

• I find that the burning of A.J.’s genitals with a barbecue lighter, first began in the fall of 2012, and not only in January –February 2013. It occurred at least once before that time frame.

• I accept and find as a fact that he was burned frequently with a lighter and over a longer period of time in January/February 2013. The photographic evidence, medical evidence and the linear scarring in the area of and on his genitals support the fact that he was burned multiple times.

• I find that the confinement and burning occurring prior to January and February 2013 is corroborated by the accused D.D.’s own statement to Sgt. Butler on February 13, 2013.

• The earlier confinement is also corroborated by D.D.’s own words in the cell phone video of January 3, 2013, where he indicates “I don’t see the same person who came down here a month ago” i.e. on December 3, 2012.

• The cell phone video supports the proposition that there was a buildup over the course of a few months to the situation that A.J. was in on January 3, 2013. The accusation of past transgressions, the references to previous attempts to correct, make it unlikely that on January 3, 2013, out of nowhere, D.D. decided that it was the time to tie A.J. naked to a post in the basement and to interrogate him.

• The barbecue lighter described by A.J., was filed as exhibit 23.

• I accept and find as fact that he was beaten with the piece of wood filed as exhibit 20. The injuries described by the medical professionals correspond to what A.J. said happened.

• I accept that the deprivation of food as a means of punishing A.J. began prior to January and February 2013. I find that A.J.’s testimony was corroborated by the following:

• the degree of malnutrition testified to by the doctors,

• the first cell phone video of A.J. taken on January 3, 2013, see Exhibit 32,

• the Internet research of D.D. concerning dehydration and malnutrition in early January 2013, see Exhibit 30.

All of the above support the proposition that this form of abuse began before January and February of 2013.

• The injury to D.D.’s hand and the broken tooth on A.J.’s mouth prove beyond any reasonable doubt that he was struck in the face by his father. This happened on January 25, 2013 the evidence of his hand injury and hospital attendances demonstrate this to be the case.

• The sheer number of injuries to A.J. (see Exhibit 6 and 10 mapping/photos of injuries) support his evidence that he was beaten over a longer period of time than January and February 2013. Furthermore, I accept his evidence with respect to what was used to beat him i.e. wooden objects, board, spoons and a broom handle.

• I accept A.J.’s description of the methodology that his father used to confine him in the basement: handcuffs/chains then plastic twist ties. The scar injuries to his wrists and ankles corroborate this evidence. As does the photographic evidence presented showing the physical layout of the basement. Exhibits 25 handcuffs and 26 plastic ties support his testimony.

• I accept the evidence from A.J. that his clothing and toys were given away by his parents at one point as a means of punishment. The officer’s description of the child’s bedroom looking like a spare room support this evidence.

• I accept the evidence from A.J. that he had to use a bucket to urinate while he was in the basement.

• I accept that he was left naked and tied in the basement for extended periods of time.

• I accept A.J.’s description of being hit in the back of the hand with a wooden spoon to the point of it being broken by his father.

• A.J.’s description of his father grilling him about his sexuality, forcing him to take cold showers and putting his head underwater is something I accept occurred. I also accept that it occurred while he was still in school. This is corroborated by D.D.’s undeniable obsession with A.J.’s sexuality and alleged “sexual misconduct” with other students at his school, and Dr. Plaus’ testimony.

• A.J.’s description of the pain he felt when he was burned by his father with a barbecue lighter, and his crying and screaming is evidence that I accept.

• A.J.’s description of having to pray in front of a statue for having looked at girls is something I accept. When shown a photograph at page 128 of the photo book, his reaction was “that’s it exactly it” which corroborates his testimony.

• I accept his evidence that he never looked up pornography on his father’s computer. (Detective Villeneuve’s testified he could find no evidence of searches for pornography)

• I accept A.J.’s description of the notion that his father wanted him to go through an exorcism. D.D.’s obsession with religion supports this part of A.J.’s testimony.

• Finally, I accept A.J.’s evidence with respect to how he escaped from the basement in February 2013.

Testimony from D.D.:

[89] D.D. testified over several days. At this point, I intend on only dealing with his testimony/evidence as it relates to the issue of the timeframe and severity of the violence perpetrated on his son. The evidence he presented concerning his post-traumatic stress disorder, and state of mind when committing the acts of violence will be dealt with when considering the NCR defence.

[90] When it came to considering the testimony of D.D. in its entirety, it would be wrong to suggest that the abuse in this case was constant. This was not a case where A.J. D was abused from the time he arrived in the D. home to that fateful day he escaped his captivity in February 2013.

[91] The examination in chief of D.D. coupled with the numerous photographs filed of the family at various times and in different situations served to support the proposition that there were times from November 2009 to September 2012 (including some periods between September 2012 to December 2012) where the D family including A.J. seemed to be a happy family.

[92] That being said on the specific question of the timeframe, degree, and frequency of the confinement/abuse suffered by A.J., I found D.D.’s testimony to be self-serving, evasive, and generally lacking in credibility. Furthermore, it was undermined and shown to be unreliable by other evidence.

[93] His answers to questions especially in cross-examination, but also including those given during his examination-in-chief were often difficult to follow, long and tangential.

[94] In his examination in chief D.D. essentially described what he did to his son in the following terms:

• The period of unlawful confinement and abuse was restricted to January 2013.

• The confinement of A.J. began with handcuffs, then went to plastic ties.

• That he made A.J. sleep in the basement approximately five times.

• He fed A.J. one sandwich per day.

• The burning with a lighter and hitting with the board were only two single incidents. The testimony in chief in this regard was as follows: Q: “The physical marks on A.J. whether it was bruises, cuts, scrapes and the burn marks, so this was two incidents or was there more than two? A. No, that was only two incidents I had.”

• That the hitting with the board and punching of A.J. where his tooth was broken occurred on the same day.

• He denied there being any abuse of any kind prior to January 2013.

• He categorically denied amongst other things the following:

• that A.J. was confined to a bed while in Florida in August 2012,

• that A.J. was ever confined to the basement between September 2012 to the end of December 2012,

• chaining A.J. to his upstairs bed while a contractor was in the basement,

• throwing him to the ground and kicking him in the back,

• ever tying him with a belt,

• making him drink beer,

• making him pee in a bucket while in the basement,

• putting a fan on while he was tied naked in the basement,

• putting tape on his mouth,

• stepping on his head,

• pointing a gun at him, and

• forcing him into a bathtub filled with ice.

[95] While the demeanour of a witness, and the manner that they respond to questions should not be a determining factor in assessing credibility, I must say that I found the way D.D. responded to questions unusual. Whenever he wanted to deny something or respond to something beneficial in the affirmative, the answers seemed to be consistently hyperbolic and exaggerated. For example whenever he denied anything whether the allegation was serious or not he would say “absolutely not.” In other instances when he responded to something affirmatively that could support his position he would use terms such as “one million per cent.”

[96] Contrasting D.D.’s testimony at trial as to the nature and duration of the abuse, with the statement he gave to Sgt. Butler on February 14, 2013 gave rise to the following differences:

• In his statement to Sgt. Tracy Butler, D.D. advised that he first burned A.J. in the area of his penis about six months before and that the punishment in question was a means of controlling A.J.’s acting out sexually.

At pages 58 and 59 of the transcript of the interview there is the following exchange:

TB: Okay. When did you start, when did you start burning him? How, what timeframe are we looking at? How long ago?

D.D.: about six months ago.

TB: We’re in February.

D.D.: It was, it might have

TB: Last Summer? When he was in School?

D.D.: No, no, no, no, no, no, no.

TB: Nothing when he was in school?

D.D.: No, nothing. Nothing.

TB In the summertime?

D.D.: No, when he started homeschooling after his homeschooling.

TB: Okay. And as I understand from him that there was some, you came from Florida, home from Florida in August that you burned him. Do you not remember where you did that?

D.D.: On his penis.

TB: And that’s why, that. That’s that one. Okay, so that’s, and not, on his penis or around it?

D.D.: Around his penis.

TB: Okay. Which is those marks. Which, so now you know why it’s sexual assault. I’m not saying that you sexually assaulted him, you’ve not penetrated him, you’ve not touched him, but because of the degradation around a sexual organ of your son, it becomes a sexual assault.

D.D.: Okay

TB: Do you understand that? Do you have any questions about that? How we come to the conclusion? Okay. Was this all done in August?

D.D.: I did it all in one time.

In his testimony he denied any abuse prior to January 2013.

• He told Sgt. Butler that the confinement of A.J. to the basement began after they came back from Florida, in other words late August 2012.

During his testimony he denied any confinement until January 2013.

• He advised the officer that he made A.J. pee in a bucket in the basement.

He denied ever doing so at trial.

[97] When confronted in cross–examination with the answers given in his statement to Sgt. Butler about as to when he burned A.J. The following exchange took place:

Q: And I’m going to suggest to you sir that in fact you burned A.J. around his penis areas six months prior to your arrest…

A: That’s not true.

Q: … Just as you said in the statement.

A: That’s not correct.

Q: You tie it in the statement to the homeschooling.

A: That’s not correct. You’re asking somebody who was in a state of mind of a suicidal man, they’re asking somebody who was I was in a deep fog. I was-did not appreciate what I was doing to my son. You’re asking me about time frames you can see that I answered then and there even though it’s not in summertime and I’m mixed up with the dates. This is not, this is not to be taken word by word as if somebody was sitting down fully awake and you’re asking him perfectly what was happening and testifying to the way he would be interrogated with full capacities. I did not know what was happening. I did not appreciate the things that were happening. Everything to me seemed like a fog. Everything to me seemed like a different zone. I was in my own defensive mode and I was being asked questions about these very things that were actually causing me the pain.

[98] Later in the exchange D.D. when pressed says “I did not, I don’t recall these answers in the first place. I don’t recall thinking of these answers or giving these answers out of consciousness, full consciousness.”

[99] The way D.D. dealt with the glaring inconsistency between his statement and his testimony at trial was to say he was not “conscious”, or that he was “in a fog” and consequently his statement should be disregarded.

[100] The statement provided to Sgt. Butler was audio video recorded, the voluntariness of the statement was not challenged. It shows D.D. to be lucid, answering questions with relative ease, detailing various parts of his life, his family history, the difficulties they had with A.J. At no time during any of the statement did he appear to be in a “fog” or in a state of “unconsciousness.”

[101] With respect to the point in time that A.J. was confined to the basement, this testimony at trial is also contradicted by Dr. Plaus who testified that that punishment was something they discussed. This is well before January or February 2013. There is no reason whatsoever to disbelieve the testimony of Dr. Plaus.

[102] In the cell phone video evidence of January 3, 2013 while interrogating his son, D.D. says “you’re not the same person that was here a month ago” the only possible inference being that he was in the basement in the same situation prior to January 3, 2013.

[103] The medical evidence presented about the nature and extent of the malnutrition and injuries sustained by A.J., support the proposition that D.D.’s version of events i.e. only one episode of hitting (piece of wood), and a single location of burning, with all abuse having a start date of January 3, 2013 is inaccurate. This evidence included the hospital emergency records from CHEO, the photo book of the injuries and the testimony of Dr. Andrea Losier and Dr. Leigh Fraser-Robert.

[104] The following highlights allow for the inference that there were multiple times where the child was hit and burned; and that he was handcuffed, shackled-restrained and deprived of nutrition for an extended period of time, beyond 5/6 weeks:

• Dr. Andrea Losier testified that she has been an emergency physician at CHEO for the last 11 years. In February 2013 she was the doctor who first attended to A.J. D. She testified that the injuries on the boy were so extensive that it took several hours to map them out. Exhibit 7 is a diagram mapping out all of the injuries. The number of injuries shown allow for a finding that there were more than two incidents of abuse.

• The photographs of A.J.’s injuries particularly at pages 70 to 77 of exhibit 11 show numerous burn/linear injuries suggesting that the use of a barbecue lighter to burn him occurred on more than one occasion. The photos at pages 33 to 37 and 117 to 125 show bruises scars etc. that suggest more than one beating. The photos and injuries shown at pages 38 to 41, 47 to 50 and 58 to 61 suggest that handcuffs shackles and twist ties were used on A.J.’s wrists and ankles over an extended period.

• Dr. Leigh Fraser-Roberts was the pediatrician who instituted the plan of care for A.J. She diagnosed him with severe malnutrition. She did a workup of him from head to toe and explained that the fine hair all over his body was as a result of severe malnutrition. She testified that some of the injuries, the parallel lines linear marks, were old injuries that had healed. Some of the injuries were well-healed, those around the genitals and penis. The injuries were repetitive and the same weapon would’ve been used. She described that the lesions all around the ankles and wrists were likely caused by a metal object and were supersensitive to the touch. She explained that there were different stages of healing. The doctor acknowledge she couldn’t be specific as to the exact date or age of the scars, nor as to their exact cause.

[105] In the decision of R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 CCC (3rd) 397 (SCC) the Supreme Court of Canada set out the manner in which a court is to consider and approach testimony from an accused person: You first ask whether you believe the accused and if you do you must acquit, if you disbelieve the accused you must still ask whether his/her evidence nonetheless leaves you with a reasonable doubt about his/her guilt, and finally even when the accused’s evidence does not raise a reasonable doubt the court must still consider whether the totality of the evidence has proven guilt beyond a reasonable doubt. The analysis not only applies to the ultimate issue of guilt or innocence, but also to an accused’s evidence called in support of a defence or diminished responsibility.

[106] In terms of the application of the principles in WD to this case, on the issue of what D.D. did to A.J.;

• I did not believe his evidence with respect to the timing and the degree of violence perpetrated on his son;

• His evidence in this regard did not raise a reasonable doubt on the issue.

• Finally the totality of the evidence has satisfied me beyond a reasonable doubt that the confinement, abuse and assaults to some degree took place over a six-month period, and with greater severity and frequency than admitted to by the accused.

[107] The bottom line in this case is that I reject D.D.’s account of what he did to his son.

[108] The evidence considered as a whole leads me to conclude that A.J. D was subjected to corporal punishment including cold showers, being struck, and being confined to the basement prior to September 2012. Following the trip to Florida in September 2012 his father as a means of punishing him for his “sexualized behaviour” burned his penis with a barbecue lighter for the first time. From September 2012 to the end of December 2012 as a means of punishing him A.J. was at various times forced to sleep in the basement, and was handcuffed by the wrists and by the legs and shackled to a post to prevent him from being able to leave the basement for extended periods of time. That during this time frame he would have been hit by his father and deprived of food.

[109] The level of abuse reached a climax in January and February 2013. I have no doubt that the area of A.J.’s genitals including his inner thigh and testicles were burned with a barbecue lighter on multiple occasions.

[110] During that timeframe it is clear to me that he was severely deprived of food particularly in the period January 3 to January 27, 2013 (the cell phone video evidence demonstrates this unequivocally). He was struck with a wooden object a board exhibit 20, he was punched in the face causing a previously broken tooth to break again and with such severity that D.D. injured his own hand. He was handcuffed shackled by the wrists and by the ankles, when that method of restraint was no longer successful his hands were bound with plastic ties. He sustained long-lasting injuries to his wrists and to his ankles as a result of the use of handcuffs and shackles.

[111] The fact is the level of abuse perpetrated on A.J. by his father D.D. was at the very furthest end of the spectrum of cases of this type.

[112] The unequivocal language used by the veteran medical professionals and veteran police officers to describe what they saw when they first witnessed the unclothed, battered, 51 pound body of A.J. such as “a concentration camp survivor”, “horrifying”, “shocking” and “worst case of child abuse I’ve ever seen” support this finding.

Question 2: Has the Crown established beyond a reasonable doubt that the accused D.D. is guilty of the offences charged in the indictment?

[113] The accused in this case has raised a section 16, not criminally responsible defence. That issue shall be dealt with under the next heading. The question here is which of the offences charged have been proven beyond a reasonable doubt?

[114] The indictment before the court contains 13 counts. D.D. and S.D.1 are jointly charged under counts 1 to 4, D.D. is further charged under counts 5, 6, 8, 9, 10, 12, and 13. S.D.1is further charged under counts 7 and 11.

[115] D.D. and S.D.1 both stand charged with the following offences:

Counts 1, 2 and 3: each allege that between the 1st day of September in the year 2012 and the 12th day of February in the year 2013 at the city of Ottawa in the East region did, in committing an assault on A.J.D. wound, maim, disfigure or endanger the life of the said A.J.D. and thereby commit and aggravated assault contrary to section 268(2) of the Criminal Code.

Count 4: that between the 1st September in the year 2012 and the 12th of February 2013 at the city of Ottawa East region did, without lawful authority confine A.J.D. contrary to section 279(2) of the Criminal Code.

D.D. alone also stands charged with the following offences

Count 5: that between the 1st of August in the year 2012 and the 12th day of February in the year 2013 of the city of Ottawa in the East region did, in committing a sexual assault on A.J.D, cause bodily harm to him, contrary to section 272(2) 2 of the Criminal Code.

I. Count 6: that between the first day of September in the year 2012 and the 12th day of February in the year 2013, at the city of Ottawa in the East region did, being under a legal duty as a parent to provide necessaries of life for a child, namely A.J.D., who was under the age of 16 years and who was in destitute or necessitous circumstances require medical assistance and nutritional sustenance, fail, without lawful excuse, to perform that duty, contrary to section 215(3) of the Criminal Code.

II. Count 8: that between the first day of September in the year 2012 and the 12th day of February in the year 2013 at the city of Ottawa in East region did, in committing an assault on A.J.D., use a weapon, namely handcuffs, contrary to section 267(a) of the Criminal Code.

III. Count 9: that between the first day of September in the year 2012 and the 12th day of February in the year 2013 the city of Ottawa in the East region did in committing an assault on A.J.D., use a weapon, namely a wooden stick, contrary to section 267(a) of the Criminal Code.

IV. Count 10: that between the first day of September 2012 and the 12th day of February in the year 2013 at the city of Ottawa East region did, in committing an assault on A.J.D., use a weapon, namely a barbecue lighter, contrary to section 267(a) of the Criminal Code.

V. Count 12: that on or about the 21st day of February 2013 at the city of Ottawa in the East region did, without lawful excuse, store a firearm, namely a Winchester 500.177 pellet, in a careless manner, without reasonable precautions for the safety of other persons, contrary to section 86 of the Criminal Code.

VI. Count 13: that on or about the 21st and February the year 2013 at the city of Ottawa in the East region did store, without lawful excuse, ammunition, namely Winchester ammunition 9 mm Luger, in a careless manner, without reasonable precautions for the safety of other persons, contrary to section 86(3)of the Criminal Code.

Position of Counsel for D.D.:

[116] Counsel representing D.D. conceded based on his client’s admissions, the cell phone evidence and medical evidence that the following counts have been made out by the evidence: count 1 (aggravated assault), count 4 (unlawful/forcible confinement), count 6 (failure to provide necessities), count 9 (assault with a weapon a wooden stick), count 10 (assault with a weapon a barbecue lighter), count 13 (careless storage of ammunition).

[117] D.D.’s counsel submits that counts 2 and 3 (aggravated assaults) are unnecessary as they are subsumed by the assault with a weapon charges (counts 9 and 10) and by count 1 as it should be considered one ongoing transaction. Count 8 (assault with a weapon handcuffs) is part of the unlawful confinement and should be stayed based on the principle in Kienapple. Count 12 (careless storage of a firearm) should be an acquittal as there were no regulations respecting the storage of a pellet gun.

[118] D.D.’s counsel submits that there should be an acquittal on count 5 (sexual assault causing bodily harm) on the basis that there was no evidence of intent, no evidence of sexual gratification on the part of his client in any of his assaults on A.J.

Position of the Crown:

[119] The Crown submits that the evidence has made out three separate aggravated assaults: the use of handcuffs causing lasting injuries to the wrists and ankles, the use of shackles causing lasting injuries to the wrists and ankles and the assault that resulted in A.J. having a broken tooth. Each of these incidents constitute separate aggravated assaults. The Crown concedes that if there is a finding of aggravated assault based upon the use of handcuffs shackles, then Count 8 (assault with a weapon namely handcuffs) would be stayed.

[120] The Crown argued that count 5 (sexual assault causing bodily harm) has been made out citing the decision of the Supreme Court of Canada in R v. V. (K.B.) 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857. They concede that a conviction on this count should result in staying count 10 (assault with a weapon a barbecue lighter).

[121] The Crown maintained that they had established the offence of careless storage of a firearm under Count 12.

Analysis:

Aggravated assaults

[122] In terms of the aggravated assaults, I find that the Crown has established two separate counts of aggravated assault based on 1) the use of handcuffs/shackles and the long-lasting injuries that resulted from their use over an extended period of time, and 2) the physical assault on A.J. that resulted in the broken tooth and injured D.D.’s hand. The two can be considered separate aggravated assaults. I agree with the Crown that a single count of aggravated assault being an ongoing transaction is not supported by the evidence.

[123] A third finding of a count of aggravated assault on the basis of separating the handcuffs from the shackles and chains is not warranted. The findings the Court has arrived at and the evidence supports the proposition that the child was handcuffed and chained at various times during the course of an extended period of time resulting in long-lasting injuries to his wrists and ankles. That being said, I cannot say that the evidence on the whole supports a separate finding of aggravated assault by virtue of the use of handcuffs and a separate finding of assault by virtue of the use of shackles/ chains. This will result in a stay of counts 3 and 8.

Sexual assault causing bodily harm:

[124] I find that the sexual assault causing bodily harm under count 5 has been made out. While there is no evidence that the assault was for sexual gratification, sexual gratification is only one of the factors to be considered in the analysis. In this case, there was an abundance of evidence to support the proposition that the sexual integrity of A.J. was violated: he was tied up, he was naked, his testicles and penis were burned with a barbecue lighter.

In R v. V. (K.B.), the Supreme Court of Canada upheld a conviction for sexual assault where the accused grabbed his three-year-old son in the genital area as a means of punishment and where there was an absence of evidence of any sexual gratification. Iacobucci J. for the majority indicated the following:

IACOBUCCI J. -- This is an appeal which comes to us as of right. The appellant was convicted of sexually assaulting his three-year-old son by grabbing his genitals; the conviction was upheld by the Court of Appeal of Ontario (1992), 1992 CanLII 7503 (ON CA), 8 O.R. (3d) 20, Grange J.A. dissenting on whether the assault was a sexual assault within the meaning of s. 271(1) of the Criminal Code, R.S.C., 1985, c. C-46.

In R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, the Court dealt with the offence of sexual assault and McIntyre J., after discussing applicable principles and authorities, stated, in delivering the judgment of the Court (at p. 302):

Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code [now s. 265(1)] which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". . . . The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. . . . The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

In the case at bar, the trial judge referred, as did Osborne J.A. for the majority in the Ontario Court of Appeal, generally to the above comments of McIntyre J. in convicting the appellant. Among other things, the appellant, on three occasions, violently clutched the little boy's scrotum and there was evidence of bruising and severe pain. In my view, it was clearly open to the trial judge to conclude from all the circumstances that the assault was one of a sexual nature and that the assault was such that the sexual integrity of the appellant's son was violated.

[125] The burning was as a means of correcting A.J.’s alleged sexual improprieties and the burning of his genitals makes this assault a sexual one where A.J.’s sexual integrity was violated. Count 5 has been made out.

[126] Count 10 assault with a barbecue lighter) is, as a consequence, stayed.

Firearms offences

[127] With respect to careless storage of a firearm under count 13, the evidence established beyond any reasonable doubt that a loaded pellet gun was found leaning against the food pantry in the kitchen of the home. It was not stored in any fashion whatsoever. A pellet gun of this type based on the tests performed by the firearms expert who testified at trial, Detective Chris O’Brien, fits the definition of a firearm under section 86(1) of the Criminal Code.

[128] The Crown has established all of the elements of the offence required for a finding of guilt on Count 13.

Conclusion on the offences considered:

[129] While I have made findings concerning the timeframe, nature and duration of the abuse and unlawful confinement of A.J. and rejected the accused’s version of his level of responsibility, the above offences are made out even had I accepted D.D.’s version of what he said he did to his son. There simply was no way around the devastating cell phone videos and medical evidence.

[130] Therefore, on the basis of the findings of the court, the prosecution has established beyond a reasonable doubt that D.D. (subject to the section 16 analysis) committed the following criminal acts: two counts of aggravated assault, one count of sexual assault causing bodily harm, one count of unlawful confinement, one count of failing to provide the necessities of life, one count of assault with a weapon, one count of careless storage of a firearm, and one count of careless storage of ammunition.

Question 3: Has D.D. established that he was not criminally responsible on account of suffering from a mental disorder?

[131] Section 16.(1) (2) (3) of the Criminal Code sets out the not criminally responsible defence:

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raise the issue.

[132] In R. v. Campione, 2015 ONCA 67, 121 W.C.B. (2d) 131,the Ontario Court of Appeal reviewed the concepts of “legally wrong” and “moral wrongfulness” and Blair J indicated the following at paragraphs 30 and 31:

[30] The concept of “moral wrongfulness” in this context has been established by the Supreme Court of Canada in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, and their progeny. The focus is not on whether the accused lacks the general capacity to know right from wrong, but rather on whether he or she is deprived – by reason of a mental disorder (including, in some cases, delusions) – of the capacity to know that the particular act is right or wrong having regard to the everyday standards of reasonable people: Oommen, at pp. 516-20. It follows that not every mental illness or delusion-driven subjective view will qualify an accused for the s. 16 defence. As Lamer C.J.C. stated in R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p. 80:

It is not sufficient to decide that the appellant’s act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

[31] Moral wrongfulness as contemplated in s. 16 is a slippery concept to apply. However, this Court very succinctly summarized the relevant considerations in Ross, at para. 27, when it stated that “a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard”: see also R. v. Woodward, 2009 ONCA 911, [2009] O.J. No. 5484, at para. 5.

D.D.’s NCR evidence:

[133] D.D. advanced the position that he was not criminally responsible by reason of a mental disorder (NCR). The thrust of the argument was that by reason of suffering from posttraumatic stress disorder, he was, at all material times in a dissociative state or living in a distorted reality when he confined, beat, burned, and starved his son. He argues that this state of dissociation prevented him from appreciating the nature and quality of the acts he committed, and / or from knowing they were wrong. While both prongs of the NCR defence were put forward, if one or the other is established on a balance of probabilities, then the defence succeeds.

[134] The wording of section 16 (2) of the Criminal Code stipulates that there is a presumption that a person does not suffer from a mental disorder and that the burden of displacing that presumption rests on the person claiming to have a mental disorder. Furthermore, for an NCR verdict to be successful in this case, I have to be convinced that PTSD is a “disease of the mind” that prevented the accused from appreciating the nature and quality of his actions, or that he was unable to know that they were wrong.

[135] The evidence in support of the defence consisted of:

• The testimony of D.D. chronicling his life history from his childhood to November 2009, when he took custody of A.J. He used this as a means of explaining why he suffers from post-traumatic stress disorder.

• D.D.’s testimony concerning his state of mind whenever he inflicted punishment on A.J. The evidence also included

• The testimony of D.D.’s brother, R.D., as a means of corroborating his childhood history, and to some extent D.D.’s state of mind.

• Finally, a clinical psychologist licensed in the province of Quebec, Karim Richard Jbeili provided a report and opinion that D.D. should not be found criminally responsible on account of suffering from posttraumatic stress disorder and being in a state of dissociation when he committed criminal acts against his son.

[136] The basis for a diagnosis of posttraumatic stress disorder stems from D.D.’s evidence about his difficult and tumultuous life history. The main highlights of that evidence can be summarized as follows:

• D.D. was born in Lebanon in 1971. Lebanon was in a state of war for much of his childhood until the time he left Lebanon at the age of 16. He witnessed and was a victim of the atrocities of war: beheadings, bombings. He testified that their family home was destroyed by bombings on three occasions. He was seriously injured when a bomb hit their home at the age of 15 resulting in his being hospitalized for one month and a half.

• During his childhood, D.D. was sexually assaulted on a number of occasions: between the age of eight and nine, he was molested by a teenage neighbour. He was also molested by a young teenager on the school bus. He was molested by two soldiers shortly after that. At the age of 11, he was violently raped by one of his teachers named Pierre. That same night, the teacher had supper with his parents. A priest, who was also a family friend, attempted to sexually assault him.

• D.D. recounted Hisham, a troublemaker in D.D.’s class, who became the favourite student of the teacher named Pierre. He discovered that during washroom breaks, that teacher would follow Hisham so that he would perform oral sex on the teacher. D recounted that at one point, he saw Hisham performing oral sex on 3 or 4 other students. He detested Hisham. He testified that the memory of this particular boy has always stayed with him. That later on he would equate A.J. with Hisham.

• D.D. described his life in Canada and how he adjusted quite well and enjoyed success in the music industry. He then proceeded to describe the tumultuous relationship he had with A.J.’s mother, M.2. He explained how he met her when he was 19, and that she was eight years older than him and how she was sickly and that he had to care for her and financially support her.

• D.D. described how in 1998, he left Canada to pursue his music career in Dubai for two years. He still continued to assist M.2 financially. Upon his return in 2000, after working a variety of jobs until 2001, he applied to become an RCMP officer.

• He described taking care of M.2 while studying to be an RCMP officer, the birth of A.J.., how he discovered that she was taking OxyContin while pregnant, how this ended the relationship.

• He described his marriage to S.D.1 in 2003 and how her parents did not accept him. He chronicled the custody and access battles over A.J. that he had with M.2 and how he spent over $100,000 in legal fees. He described how she made false allegations about his abusing both A.J. and her. How the stress of it all led to the point of giving up custody of A.J.

• D.D. described how he became an RCMP officer and how he was treated unfairly by superiors, how he transferred to Ottawa be part of the antiterrorist group in 2007. He explained how he grieved some of the wrongdoings and how he ultimately went on sick leave due to stress leave. He explained how he then returned and changed divisions.

• He described the death of M.2 and getting custody of A.J. in 2009.

[137] In so far as R.D.’s testimony supported the evidence of D.D. growing up in war-torn Lebanon, I accept his testimony regarding the bombings and the family dynamic. However in those instances where R.D.’s testimony was based only or primarily upon things D.D. told him such as for example his having been sexually assaulted, I find that evidence to be of little to no value.

[138] It is fair to say that the life story of D.D., the events he lived through and endured, lend themselves to a diagnosis of post-traumatic stress disorder.

[139] As to being in a dissociative state or having a distorted reality, he testified that when he confined and abused A.J., he did not appreciate the nature and quality of his acts and / or, he did not know they were wrong because: he saw A.J. as an enemy, as a sexual predator, that he saw him as Hisham, he feared A.J. was going to harm him, rape S.D.1 and attack the other two children in the home, he believed the Devil was in him, that A.J. was manipulating their lives, that he feared A.J. would kill him in his sleep.

[140] D.D.’s responses to questions on this issue were long, tangential and not easy to understand. By way of example are the following excerpts from his testimony when specifically asked whether he appreciated the nature and quality of his acts, and/or knew that they were wrong:

Q. At the time you are tying him up did you really appreciate the nature and quality of the acts, what you are doing?

A. I didn’t care for anybody’s feelings but mine. I didn’t see anything. I didn’t feel anything.

Q. Did you know what you were doing was wrong?

A. Absolutely not. Morally for me, he was doing something wrong for me. He was sitting down, raping my wife and kids, refusing absolutely to understand what he’s - how much pain he was putting me in, and as a matter of fact, every time he did come back with an absolutely extravagant answer to everything like picking the lock or defecating or throwing up or doing all this, it felt to me like wer’e not, where he surrounds you again, and bring it on again, and bring it on again. And it’s like a soldier that needs to use heavy artillery all the time to try not to control the threat. That’s the zone I was in. That’s how I felt at all times. A.J. was no longer A.J.. I knew Hisham was at home, and as a matter of fact, the teacher was at home. And if I was going to let him upstairs one more time, I knew he was either going to touch M.D. just to piss me off, or rape my wife or do something crazy. I was one hundred per cent, one million percent convinced of this.

Q. Your state of mind, you mean?

A. My state of mind. I was suffering tremendously of this, and A.J. would not stop for anything behaving or being oppositional. I hit him. I didn’t, but before the hitting, I burnt him, so the reason why I then had my mind set to burn him was because I felt being raped by him. The devil, I believe very much the devil lived in him. I believe very much that there is no person in the world that could have seen, have not done anything bad in his life like … to other kids or anything like that, and is able to continue living with us, and doing, looking at his mom, at S.D.1 in a different way as if she was a stranger and looking at his brother’s penises like they were strangers. All these things multiplied in my mind, and I had the same emotions that I have the whole time. I felt the same pain in my body as if Pierre was on top of me then and there.

Q. Do you feel you were in control of what you were doing in the sense of understanding, again the nature and quality of you burning him or hitting him?

A. My emotions were in control of me, and it was like a thirst. I needed to defend myself. I needed to defend myself. I don’t know why I needed to defend myself, but I know that I am facing something scary, and that’s scary. Those flashbacks are just like this is happening right now. Only this is I wasn’t able to defend myself then as much now, I was going to defend myself.

Q. Did you know what you were doing is wrong or was wrong?

A. No, because again, because A.J. was the one doing wrong to me. I was not doing the wrong to him. I was stopping him from continuing his wrong. This is how I perceive things, so I burnt him. I chained him, and that chain was used-was with me in Dubai. I use this chain to pack my keyboard because they threw them in the airplanes. That was there, and we chained the bicycles when we went away with them.

Why I chose this, why did I go this way? I don’t know. My emotions enabled for me to relieve the threat to bring it down a notch. I needed to do this. I felt like I needed to do this. Nobody could have talked sense into me, because I didn’t care about anybody. I didn’t trust anybody. The whole world to me came collapsing on my head. And the only person that I was dying for to have is the only person raping me, my wife, and my kids.

People don’t understand when I’m saying sometimes, because you have to live that trauma to understand what it feels to relive it inside of you. And A.J.’s words, his coldness, his like, his nonchalance about going with it, and not seeing anything wrong with his behaviour, was overwhelming. It was completely overwhelming, and when I did that it was, again it was a defensive mechanism, as if a football player would do his first tackle and walk away. That’s it. He’s grounding the ball and was running away.

After I burnt him, I removed myself from it. It was like hit and walk away. It felt military to me, but this is how it was. And I walked away, and it came down, it toned down a notch for me, but again it was not toning a notch point sitting down and saying, whoa. No it’s like this is not good at all. It was always on the ready mode anything like this should appear or flag again, I was ready to intervene and this is what happened.

So after this burning, if I remember correctly, I took him upstairs to take care of him, but that’s later, and then he went on with the promises that it won’t happen again, but I wasn’t trusting him anymore. And there was no way you would move in the house without my eyes being on him. I was in a different-I was a different D.

I could tell you that there was not enough cameras in the house that could tell me where he was. There was not enough hours of sleep or eyes on me to tell me where he was. I needed to be full ears, full eyes, all the time. I didn’t-if anybody could tell me anything that I did not see or hear in my ears, I didn’t believe it.

[141] Although not exactly clear, what I believe D.D. was trying to convey or to convince the court of was that he was incapable of controlling his emotions or his actions, that his terrible childhood past became a part of the present, that what he saw as the sexual misbehaviour of his son caused him to see him as an enemy combatant, that he was trying to protect his family. That as a result of all of this he did not know what he was doing when he was doing it, nor did he know that it was wrong.

The psychologist, Mr. Jbeili:

[142] The defence called Karim Richard Jbeili. He is a clinical psychologist who practices out of the province of Québec. He was qualified as an expert witness for the defence and authored a 14 ½ page report, in the French language. He also testified at trial elaborating on the contents of that report. He concluded that the Court should find D.D. not criminally responsible on account of mental disorder; namely post-traumatic stress disorder which caused him to be in a state of dissociation in a distorted reality when he abused his son.

[143] He outlined the many stressors, and difficulties D.D. had suffered in his life including his childhood experiences while living in war-torn Lebanon and his life in Canada / Montréal, including the difficulties he had with M.2. He also recounted the custody battle he had over A.J. and his difficulties with the RCMP. He explained the problems he had with A.J.’s behaviour leading up to the abuse. Much of Mr. Jbeili’s testimony matched the testimony of the accused. Ultimately, D.D. was referred to him for posttraumatic stress disorder (PTSD), and he concludes that he did suffer from a severe case of this disorder.

[144] In dealing with the section 16 defence or as he framed it in his report “Niveau de responsabilité” (level of responsibility), he explained that in the case of D.D., the PTSD. created a distortion of his reality. It created a situation where he became a person who continuously felt in danger of being physically and sexually attacked by his son who was going to be the attacker. He explained that the situation was such that D.D. was continuously living in a state of terror and that he was performing his duty by protecting his family and that his belief that his son could be a sexual aggressor caused his world to collapse, thereby causing him to lose his reason for a certain period of time.

[145] He further explained that those who are traumatized to this extent end up having a great deal of fear, and that masochism replaces any pleasure in their lives. He also explained that the traumatized are hypersensitive to stimuli.

[146] He also testified that D.D. essentially had two personalities: the musician which contained his sensitive side, and the insensitive police officer. When he became the policeman while dealing with his child, he was disassociating and maximizing his insensitivity.

[147] When asked whether he appreciated the nature and quality of the acts, the psychologist testified that D.D. was insensitive to the acts he committed and that there was a distorted sense of reality.

[148] As to the video evidence of what D.D. did to his son in the basement, the psychologist testified that this suggested he was looking for external help and that he didn’t appreciate right from wrong because he felt in this situation, he was doing the right thing. He then asked the rhetorical question does a person who knows it was wrong show to other people (i.e. the videotape) what he did?

[149] The following is an excerpt from his report, it expresses in part why he came to the conclusions he did respecting the defence under section 16 of the Criminal Code The original French language report is juxtaposed to my English translation:

Le stress post-traumatique et la dissociation sont des maladies qui sont nées avec le XXe siècle, en raison de la sécularisation qui s'est répandue très rapidement. La dégradation de l'image du père et de la divinité est pour beaucoup dans l’'extension de cette maladie.

Post- traumatic stress and dissociation are illnesses that were born in the 20th century as a result of secularization becoming widespread. The degradation of the image of the father and of the divinity accounts for the extension of this illness.

Elle est susceptible de modifier de fond en comble du jour au lendemain la vie du traumatisé. En apparence, rien n'a changé mais en réalité tout a changé. Les traumatisés souffrent énormément de ce que la peur et le masochisme sont venus remplacer de façon très soudaine l'atmosphère de plaisir dans laquelle ils vivaient avant.

It is likely to change extensively the traumatized individual’s life. Outwardly, nothing has changed but in reality everything has changed. The traumatized individuals suffer enormously from the fear and masochism that have suddenly replaced the atmosphere of pleasure in which they once lived.

Ils sont alors obligés de percevoir le monde à travers la lentille déformante du masochisme et de la peur. Monsieur ne savait pas qu'il souffrait de cette maladie et ignorait jusqu'à son existence.

They are then forced to perceive the world through the distorted lens of masochism and fear. D.D. did not know he was suffering from this disease nor did he know of its existence.

Les perceptions qu'il avait étaient donc considérées par lui comme vraies tant que personne n'était venu le détromper en lui en donnant les raisons.

The perceptions he had were therefore considered by himself, as being true as long as nobody came to undeceive him while providing him with reasons.

Et même dans le cas où quelqu'un soit venu le détromper, Monsieur aurait conservé sa perception des faits et n'aurait fait que se soumettre en apparence a l'opinion d'autrui.

And even in the case where someone did undeceive him, D.D. would retain his perception of the facts and would only have to submit in appearance to the opinions of others.

Il y a donc pour lui une distorsion obligatoire des faits. Cette distorsion lui fait croire qu'il est soumis à des circonstances exceptionnelles et qu'il doit réagir de façon tout aussi exceptionnelle à ces circonstances.

For him, there is a mandatory distortion of facts. This distortion makes him believe that he is subjected to exceptional circumstances, and should react equally in an exceptional manner in these circumstances.

Dans cet état, il discerne certainement entre le bien et le mal mais pour lui cette différence est suspendue à cause de l’état de guerre ou de viol à travers lequel il perçoit la réalité. Les seuls cas où il pourrait sortir de cet état sont :

In this state, he certainly distinguishes between good and evil, but for him this difference is suspended because of the state of war or rape through which he perceives reality. The only cases where he could come out of this state are:

1- Si la dissociation est mineure, auquel cas la personne peut revenir de temps en temps à sa personnalité initiale et de percevoir les faits alors différemment. Mais on a vu que, selon le dossier médical de Monsieur, il était en dépression profonde depuis plus de 18 mois, ce qui accentuait une dissociation déjà importante entre la personnalité du musicien et celle du policier.

1 - If the dissociation is minor, in which case the person may occasionally return to its original personality and collect the facts differently. But we have seen that according to Mr. D’s medical record, he was in a state of acute depression for over 18 months, which accentuated an already significant dissociation between the personality of the musician and that of the police officer.

2- 2- Le deuxième cas où il serait sorti de sa distorsion perceptive serait si on 1'avait convaincu par une forme de pression sociale, qu'il était malade et que cette maladie l'amènerait à voir de façon distordue tel et tel fait. Mais même dans ces cas-là, Monsieur ne peut pas modifier sa façon de voir, il ne peut que se retirer de l'endroit où on lui a signalé qu'il y avait distorsion. Or Monsieur ignorait qu'il était malade et personne de son environnement n’a pris conscience de la gravité des états psychiques qu'il vivait. On l'a au contraire encouragé à poursuivre et on a bloqué les opportunités de fuite en condamnant dans sa famille toute démarche qui viserait à se défaire de la charge de A.J..

2 - The second case where he would have exited his perceptive distortion would be if others had convinced him, using social pressure, that he was sick and that this disease would lead him to having a distorted view of facts. But even in these cases, D.D. cannot change his way of seeing, he can only withdraw from the place where it was reported to him that there was distortion. D.D. ignored he was sick and nobody in his environment has recognized the seriousness of the mental states in which he lived. He was encouraged to continue and opportunities to flee were blocked by condemning any approach by his family aimed at discarding A.J.’s load.

CONCLUSION

Je considère que Monsieur, en raison de son passé très mouvementé, d'une situation de crise- personnelle, professionnelle et familiale et d'une dépression persistante, a développé une dissociation et un stress post-traumatique suraigu et de plus en plus intense. Cet état l'a amené à suspendre le discernement entre le bien et le mal en raison d'un état d'urgence permanent.

CONCLUSION

I consider that, because of his very eventful past, a personal, professional and family crisis and a persistent depression, D.D. developed a state of dissociation and an increasingly intense post-traumatic stress disorder. This condition led him to suspend his discernment between good and evil because of a permanent state of emergency.

On peut dire qu'il souffrait d'une distorsion de la réalité d'origine affective et non pas cognitive. Je considère en conséquence qu'il atteint le seuil ou s'appliquerait le « section16 défence ».

We can say that he suffered from a distortion of the reality of emotional, not cognitive origin. Accordingly, I consider that he has reached the threshold where the "section 16 defense" applies.

Analysis and conclusion on the NCR defence:

[150] I find that D.D. has failed to establish on a balance of probabilities that he was not criminally responsible within the meaning of section 16 of the Criminal Code on account of a mental disorder.

[151] I arrive at this conclusion on the basis of the following analysis of the evidence called in support of this defence.

D.D. testimony/ NCR defence:

[152] I reject the bulk of D.D.’s testimony to support the claim that he was not criminally responsible for the following reasons:

i. The acceptance/plausibility of his evidence on the Section 16 issue is in part predicated on accepting his version of what he in fact did do to A.J. namely, that it only involved 2 or 3 incidents - one burning/hitting him once; hitting him once with a piece of wood, and that the confinement only occurred five times. For reasons already given in this decision, that version of events was rejected.

ii. He testified that part of the reason for not knowing right from wrong when he confined, burned, and beat A.J. was that he was “one million per cent sure” that A.J. was going to attack the family. This is contradicted by other parts of his testimony. Elsewhere he references the lying, the failure to do homework etc. as explanations for why A.J. was being confined and punished.

iii. The cell phone video evidence exhibit 7 shows D.D. as lucid, appearing to be in complete control, his tone of voice is that of someone who appears to be completely unafraid and calm, he is preoccupied with A.J.’s lies, that he stole a piece of chocolate from his brother and with alleged sexual misbehaviour with other children. These videos captivate many of the crimes as they were being committed. They provide a compelling window into his state of mind at the time.

iv. The Internet searches of January 9, 2013, at exhibit 30 reveal the following information: how to treat a child for lack of nutrition, or whether Gatorade is good for a dehydrated person, or for children. These searches allow for the inference that D.D. was capable of appreciating the fact that A.J. was malnourished and dehydrated. It is difficult to reconcile this evidence with the suggestion that he was not aware of the nature and quality of his acts.

v. On February 12, 2013, D.D. made a 911 call when A.J. went missing. The dialogue between the operator and D.D. included these exchanges:

O. (operator) okay. Was he upset did you guys fight today?

C. (caller-D.D) well we were fighting for a while yes.

O. Okay, what were you guys fighting about?

C. Um …ma’am he’s uhh ... ODDA, he’s ADHD so...

O. Okay

C. Um… possibly bipolar so, we fight about his behaviours and… and what he does. He breaks things at home, he steals, he does sexually things to….to himself and to others.

… I punished him severely. I punished him severely. Hit him.

... I did bad things with him and I..I regret it.

Furthermore at one point he expresses concern about being arrested once it is clear that A.J.. has been found:

C. Yes I have the address. Uhh why do I have to drive there?

O. Because your son is there with a police officer and the ambulance.

C. Okay.

O. And your son is refusing to get into the officer’s car. He is saying his back is sore but everything’s okay.

C. Okay, I’m gonna I’m, I’m…uh… can you let the officer know because please, I don’t want to show up and… and get arrested for uhh..you know me showing up without that knowledge if I’m … if he says I’m a danger to him.

The dialogue with the 911 dispatch including the tone of voice of D.D. taken as a whole suggests he knew he had committed wrongful acts.

vi. On February 12, 2013, D.D. made utterances to the first responders. Cst. Cybulski was told that they would see bruises on A.J.., that he was not supposed to have done the things he did to A.J. and that he knew he would probably lose his job as a result. He told the paramedic Barnaby Beland that they would find bruises on A.J.’s arms and torso and that he felt bad for hitting him and said “ I know what I did was wrong and I will stand up in court and say it, but it is too much.” These out-of-court statements contradict his testimony at trial that he did not know what he was doing was wrong.

vii. The audio videotape statement given to Sgt. Butler on February 14, 2013, in my estimation show someone who is in complete control of his faculties, who appreciated each act he claims he committed against A.J.., and the reason he committed these acts. Furthermore, his answers and the way he answered clearly demonstrate a person who knew what he did was wrong.

viii. Finally, when confronted with the following: the January 2013 video evidence, the 911 call, the statements made to the first responders, and the February 14, 2013 statement to Sgt. Tracy Butler, D.D.’s answers were very evasive, self-serving, and at times incomprehensible: by way of one example (and the cross-examination was replete with similar instances) was the following lengthy exchange respecting the 911 call:

Q. Okay I will refer you to our page 14.

A. Yes.

Q. And at page 14 of the 911 call, the operator at the middle of the page says “okay why don’t you-okay I’m going to ask you drive over to, or walk over to K[…]”. Do you see that?

A. Page 14?

Q. Yeah, 14 to 15 on the 911 call.

A. Okay yeah I see it, yeah.

Q. Okay. And you answered ultimately you say “yes, I have the address. Why do I have to drive there?” Right? Do you see that?

A. Yeah.

Q. And then the operator says “because your son is there, with a police officer and an ambulance.” Right?

A. Yeah

Q. And then we go on toward the bottom of the page, and you say “okay I’m going to-can you let the officer know because please I don’t want to show up and and get arrested for, you know for me showing up without that knowledge if I’m-he says I’m a danger to him”. Do you see that?

A. Yes.

Q. Okay. So two things there. You’re, you’re reluctant to go-you seem to be questioning why he should have to go to K[…]? Right?

A. Yes.

A. This man, yes.

Q. Okay. And, more importantly you’re asking that the police be notified before

you get there so you don’t get arrested right?

A. That’s what this man is asking yes.

Q. Well, this man is you right, D.D.?

A. Not this guy here right now, no.

Q. So I’m going to suggest to that you are telling the police, you’re telling the operator to alert the police ahead of time so you don’t get arrested because you know what you’ve done is wrong right?

A. That’s what it seems here.

Q. yeah. So you agree with me then?

A. I disagree with you that this is me doing this. This is that person in there that had no idea of the severity of the consequences of what he had just done. He’s worried about why he’s going to drive, he’s worried about himself, and he’s worried about what is him. It’s not about his son. So that’s what I been trying to tell you. It’s about the focus. This is not something I would do rational-in the rational mind. This is to me is out of whack. I don’t know what the heck I was doing I don’t know what was going through my mind. I’m looking for my son. I’m worried about myself. I can’t even rationalize this even for me to sit down and tell you what was I going through this-it’s impossible.

Q. Sir, one of the things you said in that last answer was that you, you weren’t really aware of the consequences of what you were doing. But you do agree with me that that’s inconsistent with your concern about being arrested. Right?

A. Sir, I said many things that are out of touch with reality. This is-I am telling you in any shape or I did not appreciate nor the words that I said, nor the things I spoke about nor the gravity of A.J..’s being away whether he’s injured, he’s okay. I did not appreciate any of this. I still talking about myself in this, and this is where I told you my emotions were all about me. So…

Q. Do you agree…

A. I disagree with the fact that the consequences that you’re talking about rationalized today is the same thing that this person rationalized then.

Q. Do you agree that your statement just now, that you didn’t appreciate the consequences of what you were doing, you agree with me now that that is inconsistent with being concerned about getting arrested?

A. Sir…

Q. Do you agree with me or not?

A. Sir, morally I disagree with you.

Q. Morally you disagree or morally, you were going to say you agree?

A. No morally I disagree with you with that because I.

Q. You knew this was morally wrong.

A. What’s so funny Sir? I’m sorry but…

Q. Well, first of all we need to get an answer to the question.

[153] The testimony of D.D. on the defence of being found not criminally responsible, by reason of being incapable of appreciating the nature and quality of the acts while he was committing them and/or not knowing they were wrong was not believable.

Mr. Karim Jbeili the psychologist:

[154] I do not accept the opinion of the psychologist who testified in support of the section 16 defence. I reach this conclusion on the basis of the following:

i. The factual foundation for the opinion reached by the psychologist is based almost entirely on the self-reporting of D.D. For an opinion to have any weight there has to be a factual foundation to support the opinion reached. In this case, I have rejected the evidence of D.D. on either prong of the NCR defence, I find that the self-reporting here would have in most respects resembled his testimony.

On the issue of expert evidence the Supreme Court of Canada in R. v. Lavallee, [1990] 1 SCR 852, [1990 CanLII 95 (SCC)](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii95/1990canlii95.html), quoting from R v Abbey, [1982 CanLII 25 (SCC)](https://www.canlii.org/en/ca/scc/doc/1982/1982canlii25/1982canlii25.html), [1982] 2 S.C.R. 24, indicated the following at p. 864-865:

“Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.”

For present purposes I think the ratio of R. v. Abbey, [1982] 2 S.C.R.

24, can be distilled into the following propositions (see p. 43-46):

1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.

2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.

3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.

4. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist” (at p. 46).

ii. The expert was not impartial. He was D.D.’s treating clinical psychologist. He made it clear during the course of his testimony that his loyalties rested with his patient. Exhibit 84 is a letter dated April 10, 2015 authored by Mr. Jbeili it is a precursor to the opinion authored in October 2015. In his testimony, he stated that he wrote the letter as an advantage to D.D., that he considered this to be part of his duties to him, that he wanted to advocate for him.

He also failed to examine in any meaningful way all of the evidence necessary to formulate a valid independent opinion. Mr. Jbeili admitted that he did not view or review all of the videos taken of A.J. in the basement, the audio video of Sgt. Butler’s interview of February 14, 2013, the photos of the injuries to A.J. He only reviewed part of the audio video interviews of A.J. in the hospital bed. It seems to me that based on his testimony he believed it unnecessary to look behind what his patient was telling him, as he put it “I don’t believe I need to go any further. I find no utility there, no use, without compromising the relationship that I have with him.”

iii. Mr Jbeili was narrowly qualified as an expert to testify at trial. He is not a forensic psychologist. He has never testified in court before on the subject of criminal responsibility on account of a mental disorder. As was said following the Mohan/Abbey voir dire on the admissibility of his evidence, “he would be at the very lowest end of the spectrum of an expert to give this kind of opinion”.

iv. The psychologist opinion vacillated during his testimony. Some of the responses given in his examination in chief and cross-examination negate the proposition that D.D. was in a state of dissociation when committing the offences. For example, comments about his state of mind such as: “he wasn’t in that terrible state he was just on the verge of insanity” or his explanation that D.D. “was burning him for an educational goal” that it wasn’t that he was not able to understand the nature and quality of his acts, but that he was unable to understand that he was exaggerating.”

v. Finally, his testimony, his report and opinion as a whole were difficult to understand, it seemed to be a theoretical exercise instead of a comprehensive fact-driven analysis. Expert evidence to support the proposition that D.D. was not criminally responsible on account of a mental disorder such as PTSD, while he confined, beat, burned and tortured his son over the course of several weeks (for that matter months) would have required a great deal more.

In truth on the whole of the evidence the opinion that he was not criminally responsible on account of a mental disorder is to me untenable.

[155] While I accept that D.D. may have suffered from depression, and post-traumatic stress disorder, I reject the notion that a “mental disorder” caused him to be in a state of dissociation to the extent that he was incapable of appreciating the nature and quality of his acts and/or knowing that they were wrong when he committed the crimes against his son A.J.

[156] Therefore, I find D.D. guilty of counts 1, 2, 4, 5, 6, 9, 12 and 13. Counts 3, 8 and 10 are stayed.

Question 4: Has the Crown established beyond a reasonable doubt that S.D.1 is guilty of failing to provide the necessaries of life and assault with a weapon?

Failing to provide the necessaries of life

[157] S.D.1 did not testify at trial. Her counsel acknowledged that the evidence supports a finding of guilt on Count 11, the charge of failing to provide the necessities of life contrary to s. 215 (3) of the Criminal Code.

[158] I find that the statement provided to Sgt. Butler by S.D.1 on February 13, 2013, the cell phone video evidence, the medical evidence, and the testimony of A.J. support a finding that the Crown has established beyond a reasonable doubt that S. D. is guilty of the offence of failing to provide the necessities of life as set out in Count 11 of the indictment.

[159] The evidence supports that S.D.1 was aware that A.J. was severely malnourished, and that despite this knowledge she did not come to his aid in accordance with her duty as his parent.

Assault with a weapon

[160] The count of assault with a weapon, under section 267(a) of the Criminal Code, arises from an allegation against S.D.1 that as a means of corporal punishment, she struck A.J. on the palm of the hand with a wooden spoon.

[161] In her statement to Sgt. Butler on February 13, 2013, S.D.1 denied striking A.J. with a wooden spoon at any time.

[162] The evidence in support of this allegation comes from A.J.’s original statement in February 2013, his testimony during the trial, and out-of-court utterances made by S.D.1 to a co-worker, M.R..

[163] I am satisfied beyond a reasonable doubt that the assault at issue did in fact occur. I arrive at this conclusion based on the following analysis of the evidence:

• In his initial statement to Officer Joanne Marelic, I reiterate that A.J. minimized what had been done to him. When asked about whether S.D.1 ever punished him he indicated:

JM: Does S.D never punish you?

A.J: Yes.

J.M: And how does she punish you?

A.J: Well she would, she would do the same thing as is that. They both do the same thing.

J.M: With the spoon?

A.J: Eh yeah yeah with the spoon.

He then very quickly recoiled from the statement saying: Well I’m not sure. My mom, I’m not sure anymore. I’m not sure she did it, yes or no. But, on, she would punish me…uh…like, less harsher than my dad.

• A.J.’s testimony at trial was no longer equivocal. He recounted in clear terms that S.D.1 hit him on the palm of the hand with a wooden spoon. The utterances he recalled coming from S.D.1 at the time seem genuine “do what you are supposed to do” “follow the rules”.

As well, his minimizing S.D.1’s involvement by stating” “she didn’t do it hard but it was painful” “she never disciplined much” immediately following the advice that she hit him with a spoon lend credence to his testimony. Exhibit 22 were wooden spoons retrieved from the D. residence.

• M.R. testified that she was a co-worker with S.D.1 at the Department of Citizenship and Immigration Canada. She explained that S.D.1 frequently spoke about the difficulties with A.J.’s behaviour both at home and at school. She testified that at one time S.D.1 described how her 2 year old son M.D. took a wooden spoon and mimicked a gesture of hitting someone and that he then gave it to her. This S.D.1 said was because M.D. had once witnessed her hit A.J. on the hand with the spoon. The witness said that this made her uncomfortable, that she reacted surprised, she then quickly changed the conversation. Her evidence was unshaken in cross-examination on this point, the witness had absolutely no motive to fabricate anything. In fact, she indicated she liked and respected S.D.1 as a colleague at work. I believed her without reservation.

[164] The combination of A.J.’s initial statement, his testimony at trial and the testimony of M.R. convince me beyond any reasonable doubt that S.D.1 assaulted A.J. with a wooden spoon. The reason she assaulted him was as a means of inflicting corporal punishment. Therefore, I find S.D.1 guilty of Count 7 of the indictment, assault with a weapon.

Question 5: Has the Crown established beyond a reasonable doubt that S.D.1 is guilty of counts one to four on the indictment being the offences for which she is jointly charged with D.D.?

[165] The Crown advances the position that S.D.1 should be found guilty of the three separate counts of aggravated assault on of the basis of party liability pursuant to section 21 of the Criminal Code: and one count of unlawful confinement on the basis that she was a either a principal who acted in common with D.D. or alternatively that she aided and abetted him in committing this crime.

[166] In that the court has found D.D. guilty of two of the three counts of aggravated assault, S.D.1’s exposure on the joint charges relates to two counts of aggravated assault and a charge of unlawful confinement.

[167] Counsel representing S.D.1 has submitted that the evidence falls short of establishing that S.D.1 acted as a principal in the unlawful confinement of A.J. I agree with this submission. The evidence when taken as a whole, including the admissions of D.D. to Sgt. Tracy Butler and the trial testimony of both D.D. and A.J., lead me to conclude that the Crown has not established beyond a reasonable doubt that S.D.1 was a principal actor in the commission of this offence. There is insufficient evidence to support the proposition that she ever acted separately or together with D.D. in confining A.J. It was D.D. who handcuffed him, tied him, chained him, I am not satisfied beyond a reasonable doubt that S.D.1 did any of these specific acts either alone or with D.D.

[168] If culpability is to be found for any of the joint charges it is by virtue of the application of section 21 of the Criminal Code of Canada, which provides:

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[169] With respect to the application of section 21 (2), The Ontario Court of Appeal in R v. Cadeddu, 2013 ONCA 729, 313 O.A.C. 170,m at paras 56 to 58, explained that:

[56] The foundational element of s. 21(2) is an agreement between a principal and a party (or parties) to carry out an unlawful purpose. An unlawful purpose is one that is contrary to the Code. The unlawful purpose must be shared by all parties, and it must be different from the offence ultimately committed.

[57] A party to an offence under s. 21(2) does not need to share the same motives or desires as the principal. As Lamer C.J. stated in R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, at para. 42, the parties only need to have in mind the same unlawful goal, because to require “a mutuality of motives and desires between the party and the principal” would unduly restrict Parliament’s intention in enacting the offence. Moreover, the agreement or common intention does not need to be formed in advance; it can arise at the time the offence is being committed: R. v. Vang (1999), 1999 CanLII 2310 (ON CA), 118 O.A.C. 75, at para. 24, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 203. For instance, in Vang, this court found that even though the assault was commenced by only one party, once the accused joined the attack, they engaged in a common purpose to assault the complainant and to assist each other in carrying it out (at para. 25).

[58] The trial judge is required to instruct the jury that they must be satisfied, beyond a reasonable doubt, that the accused and the other participant(s) agreed to carry out a common unlawful purpose and to help each other to do so. They must be referred to the evidence they can consider in determining whether there was such an agreement.

[170] In order for the common intention portion of section 21 to apply in the present case, there would have to be evidence to satisfy the court beyond a reasonable doubt that S.D.1 committed a separate criminal act for the unlawful purpose of demonstrating an intention in common to assist D.D. to forcibly confine and assault A.J., I am not satisfied that the evidence supports such a finding.

[171] It seems to me that the issue of whether S.D.1 is to be found guilty as a party to the offences of unlawful confinement and aggravated assault comes down to whether the failure or the omission to protect A.J. was with the intent to or for the purpose of aiding D.D. in committing these crimes.

[172] The Ontario Court of Appeal has provided instruction on the issue of party liability in the context of cases of child abuse, where omission or the failure of a parent to protect is the route being advanced for a finding of criminal liability.

[173] In R. v. Palombi, 2007 ONCA 486, 225 O.A.C. 264, Justice Rosenberg explained the requirement to establish the mens rea element in such cases. The decision concerned party liability and child abuse in the context of ordering a new trial by reason of a flawed jury instruction on party liability where he indicated the following at paras 21 and 22:

[21] The courts have stressed the importance of accurately charging the jury on the mens rea for party liability. For example, in R. v. Barr(1975), 1975 CanLII 1253 (ON CA), 23 C.C.C. (2d) 116 (Ont. C.A.), the trial judge told the jury that “for the purpose of aiding” was “the same as saying with the effect of aiding”. Although the misdirection was immediately followed by a correct instruction, Dubin J.A. was not satisfied that the jury would not have been misled by the former instruction. As he said at p. 120:

In the impugned passage the learned trial Judge gave the jury a simple, but inaccurate dictionary meaning of the provisions of s. 21, which bore directly on the issue which they were called upon to determine. I am confident that the misdirection was an inadvertent one, but the trial Judge did not specifically advise the jury that this portion of the charge was not accurate. It would, therefore, be unsafe, in my opinion, to let the verdict stand.

[22] I have the same concern here. If the jury accepted the Crown expert evidence as to the cause of the injuries, the difficult issue for the jury in this case would not have been whether the appellant knew about the abuse, but rather, whether her acts or failure to act were with the intention, or for the purpose, of aiding or encouraging her co-accused. The trial judge relieved the jury of that difficult task by leaving them with the option of convicting the appellant merely on the basis that she knew of the abuse. They were repeatedly told that either knowledge or intention to aid was sufficient to convict.

[174] In R v. Dooley, 2009 ONCA 910, [2009] O.J. No. 5483, at para: 118, in the context of a child abuse case and a parent who fails to protect, Justice Doherty said the following respecting party liability:

[118] The appellants’ argument focuses on the conduct component of aiding and abetting. The nature of the conduct that can amount to an act of aiding or abetting is coloured by the mental state accompanying that act. The Crown must prove that the alleged aider or abetter acted “for the purpose” of aiding or abetting – meaning that they acted with the intention of aiding or abetting the perpetrator in the commission of the crime. This requirement can only be met if the aider or abetter has knowledge of the crime that the perpetrator intends to commit. Without that knowledge, the alleged aider or abetter cannot act “for the purpose” of aiding or abetting the perpetrator in the commission of the crime…

[175] Thus in the context of S.D.1 the Crown must establish: 1) That she knew that D.D. unlawfully confined and assaulted A.J. 2) That she failed by act or omission to do anything to prevent the confinement and assaults. 3) That the purpose and intent behind the omission was to aid D.D in committing the offences.

[176] In the case of S.D.1, the evidence supports a finding that she was aware that A.J. was being confined in the basement and was physically assaulted by D.D. This would include but not be limited to the following:

• The fact that she was on maternity leave and at home when some of the unlawful confinement and assaults occurred.

• The admissions that she was aware of the confinement and abuse suffered by A.J. at the hands of D.D. in her statement to Sgt. Tracy Butler on February 14, 2013.

• A.J.’s evidence about her knowledge of the abuse and confinement.

[177] The evidence also supports the proposition that S.D.1 failed by omission in her duty as a parent to protect the child by taking him out of harm’s way. When questioned by the Children Aid’s Society investigator, Alain Corriveau, in the presence of Sgt Holly Watson, she acknowledges this to be the case by saying “I am guilty of not protecting him.”

[178] The real issue here is whether the Crown has established beyond a reasonable doubt that the only reasonable inference that can be drawn from the whole of the evidence is that the actions or inactions of S.D.1 were for the purpose of aiding of assisting D.D. in the commission of the offences of unlawful confinement and aggravated assault. In other words, I have to be sure that that is the only reasonable inference that can be drawn from all of the evidence.

[179] While I have little difficulty in suggesting that S.D.1 should have contacted the authorities, or should have taken A.J. to a place of safety, I cannot say that the only available inference for failing/omitting to do so was for the “purpose” of aiding D.D. in the commission of the offences. When the evidence is considered as a whole, there are other equally plausible inferences such as: that S.D.1 didn’t know what to do, that she was conflicted, that she was afraid of D.D., that she decided not to do anything so as to, so to speak, “bury her head in the sand.” Moral culpability does not always equate to legal culpability.

[180] The following evidence and analysis lead me to this conclusion regarding her mental state:

• A.J. testified and said that S.D.1 did the following: that she tried to get D.D. off A.J. to protect him more than one time, that she tried to calm D.D. down at various times, that when D.D. was not around, she would allow him to take hot showers, that she would comfort him and would sneak him food.

• The evidence concerning the personality of D.D., allows for a finding that he was a domineering. This coupled with S.D.1 being responsible for a newborn and a two-year-old allows for the inference that she would have found herself in a difficult situation where she would not know exactly what to do in all the circumstances and that she could have been afraid of D.D.

• D.D.’s testimony respecting the degree of involvement of S.D.1, including his statement to Sgt. Butler suggests that the omissions were not for the purposes of aiding in committing offences against A.J.

• In her statement to Sgt. Butler, she seemed legitimately surprised by the degree of abuse that had been perpetrated upon A.J. This was particularly so with regard to the burn injuries.

[181] Therefore, I find S.D.1 not guilty of counts 1, 2, and 4 in the indictment count 3 is stayed.

Conclusion:

[182] This was a very difficult trial. That a parent could do the things that were done to AJ D. was gut-wrenching. That being said, however, the fact that this half- starved, burned and battered 11 year old could somehow summon up the strength to escape his cruel captivity and later seemingly rise above it, is a testament to the indomitability of the human spirit.

The Honourable Justice Robert Maranger

Released: November 21, 2016

CITATION : R. v. D.D. and S.D.1, 2016 ONSC 7249

COURT FILE NO.: CR-13-7668-0000

DATE: 2016/11/21

Subject to any further Order by a court of competent jurisdiction, an Order pursuant to S. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJ.ESTY THE QUEEN

– and –

D.D. and S.D.1

REASONS FOR JUDGMENT

Maranger J.

Released: November 21, 2016