Court File and Parties

COURT FILE NO.: CR-17-10000034-0000 DATE: 20170524 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.F. Defendant

Counsel: Mihael Cole and Heather Keating, for the Crown Nathan Gorham and Joanne Park, for the Defendant

HEARD: February 27 and 28, March 1, 2, 3 and 6, 2017

MOLLOY J.:

Reasons for Decision #2 (Rulings on Gardiner Hearing)

A. Introduction

[1] N.C. died on Sunday, July 14, 2013. He had just turned two years old at the end of May. He died as a result of sepsis from peritonitis following ruptures of his small intestines, which in turn were caused by a blunt force trauma to his abdomen. In addition to the injury that caused his death, N.C. had numerous other injuries, including multiple injuries to his head, face and various other places all over his body.

[2] During the time leading up to his death, N.C. had lived with his mother, M.C., and her live-in boyfriend, J.F.. Ms. M.C. and Mr. J.F. met on May 14, 2013. Mr. J.F. had a dispute with his landlord, which led to his eviction. On June 23 he moved into the townhouse where Ms. M.C. and her son resided and lived with them right up to the time of N.C.’ death.

[3] N.C. normally went to a daycare on weekdays and also to a babysitter on Tuesday and Thursday evenings while his mother was at school. From the end of June, he was kept home from both daycare and babysitting. Those caregivers were told that he was ill. For the two weeks in July prior to N.C.’ death, only M.C. and J.F. had access to N.C.. His condition deteriorated significantly over the weekend. He was not eating, and was also fussing, lethargic and vomiting green bile. He was not seen by a doctor during any of this time. It was only when they found N.C. dead in his crib on Sunday afternoon that Ms. M.C. and Mr. J.F. brought him to the hospital.

[4] M.C. and J.F. were charged with second degree murder in relation to N.C.’ death. Both were committed for trial following their separate preliminary hearings. The indictments were joined and they were scheduled to appear for trial together in the Superior Court in January 2017. Prior to the commencement of trial, Ms. M.C. pleaded guilty to manslaughter before Code J. based on her failure to provide the necessaries of life for her son. She was found guilty and sentenced, on a joint submission, to six years.

[5] The trial then proceeded before me against Mr. J.F. alone, commencing on January 9, 2017 with a number of pre-trial motions. At an early stage in the proceedings, Mr. J.F. had sought to re-elect the mode of his trial and asked to be tried by judge alone. The Crown refused to consent, which was the subject of one of the motions before me. I made decisions on some of the pre-trial motions (with reasons to follow); other motions were heard, but no decision rendered. Mr. J.F. then decided to change his plea to “Not Guilty of murder, but Guilty of the lesser included offence of manslaughter.” An agreed statement of fact was filed in which Mr. J.F. stipulated that as of 10:00 a.m. on July 14, 2013, he had a legal duty to seek the necessaries of life for N.C. and that he had failed to do so. It was also agreed that: N.C. died as a result of blunt force trauma to his abdomen; medical attention might have saved his life; the failure to obtain medical treatment was a significant cause of his death; and the failure to seek treatment was a marked departure from what a reasonably prudent person in those circumstances would have done. The essential elements of unlawful act manslaughter were established and I therefore found Mr. J.F. guilty of that crime.

[6] There was no agreement as to the appropriate sentence. The parties agreed that the matter would proceed to a Gardiner hearing [1] before me, with the onus on the Crown to prove beyond a reasonable doubt the following alleged aggravating factors:

(1) J.F. assaulted M.C.; (2) J.F. inflicted the fatal blow to N.C.’ abdomen that caused his death; and, (3) J.F. assaulted N.C. on other occasions.

[7] The evidence on the Gardiner hearing consisted of: the evidence that was before me on the preliminary motions; some agreed statements of fact and exhibits filed on consent; the viva voce testimony of M.C.; and the viva voce testimony of W.K. (a man who shared a cell with Mr. J.F. for a period of time and who testified that Mr. J.F. confessed to him.)

[8] I am satisfied beyond a reasonable doubt that Mr. J.F. assaulted Ms. M.C. and that, in the guise of unjustified and misguided discipline, he also assaulted N.C. on a number of occasions in July 2013. However, I am not able to determine beyond a reasonable doubt who or what caused the fatal blow to N.C.’ stomach.

B. Background Facts

(i) M.C. and Her First Two Children

[9] At the time of N.C.’ death, Ms. M.C. was 26 years old. N.C. was her third child. The first two children were taken into protective custody by the Catholic Children’s Aid Society (“CCAS”) before N.C. was born and have since been adopted. While in custody pending trial for the murder of N.C., she gave birth to a fourth child. Mr. J.F. is the father. That baby was apprehended at birth by the CCAS. Contested child protection proceedings are still ongoing.

[10] For virtually her whole life, M.C. has been a victim. She came to Canada with her father and stepmother when she was five years old. She reports having been physically and emotionally abused by both her father and stepmother and also sexually assaulted by her father. The CCAS was involved a number of times during her childhood.

[11] When Ms. M.C. was 18 years old, she gave birth to her first child (J.C.). The man she alleged to be the father denied it. Ms. M.C. continued to live with her father and stepmother, along with J.C., after he was born. She was involved in an “on again/off again” relationship with J.D. for a period of that time. She moved into her own apartment with J.C. and co-habited with Mr. J.D. from time to time. When Ms. M.C. was 21 years old, she gave birth to a second son (“A”). Mr. J.D. was the father.

[12] Ms. M.C. was the victim of repeated assaults by Mr. J.D. throughout their relationship, some of them extremely violent. Police would be called and Mr. J.D. would be arrested, but Ms. M.C. would subsequently recant. These beatings began prior to the birth of A and continued thereafter. Mr. J.D. often assaulted Ms. M.C. in front of her children, but he did not assault either of the children. Mr. J.D. was charged criminally with domestic assault on two occasions. Both times, Ms. M.C. failed to appear at trial and the charges were withdrawn.

[13] In early 2009, the CCAS took both children into their care because they could not trust Ms. M.C. to protect the children from witnessing the abuse by Mr. J.D.. Although he would be removed from the home at times, and was held in custody for some of that time, Ms. M.C. would always take him back and the cycle would continue. In January 2010, when Mr. J.D. was in jail pending trial for assaulting Ms. M.C., the CCAS returned both children to her care with supervision. However, Ms. M.C. became increasingly depressed and unmotivated and started cutting herself. She slept a lot, during which time the children would be unsupervised. On one occasion in early May, 2010, J.C. told a CCAS worker that his mother “spanked him” in the head, legs and bum. The CCAS worker reviewed this with Ms. M.C. and counseled her against using physical discipline, explaining alternatives and giving her reading material on the subject. Apart from this one incident, there was no indication that Ms. M.C. ever assaulted any of her children.

[14] On May 28, 2010, Ms. M.C. returned both her children to the care of the CCAS. In August 2010, she failed to appear for Mr. J.D.’s criminal trial. She testified that she had stayed in touch with Mr. J.D. while he was in jail and he told her that he would have her shot outside the courthouse if she turned up for the trial. A material witness warrant was issued for her arrest. Meanwhile, she was already re-united with Mr. J.D.. She testified that he got into an altercation with his grandmother in the course of which he assaulted her and his grandmother. The police were looking for him and he decided to flee to Vancouver. Ms. M.C. voluntarily went with him. She said she felt she had no choice. The physical abuse continued in Vancouver. Ultimately, during a particularly violent assault in December 2010, Mr. J.D. stabbed Ms. M.C. in the back, puncturing her lung. She testified that this was what finally ended the relationship. She sought help and was taken to a shelter after leaving the hospital, and eventually came back to Toronto. This time, Ms. M.C. did testify at Mr. J.D.’s trial, after which he was convicted and given a lengthy prison sentence.

[15] In June 2011, both J.C. and A were made wards of the Crown. Ms. M.C.’s appeal of that decision was dismissed. Both children were adopted.

(ii) M.C. and Her Third Child N.C. to July 2013

[16] It was only after the last assault and subsequent arrest of Mr. J.D. in December 2010 that Ms. M.C. learned that she was pregnant with Mr. J.D.’s child. N.C. was born on […], 2011 and was immediately apprehended by the CCAS and placed in foster care with J.O., who had previously been a foster mother for J.C. and A.

[17] From the time of N.C.’ birth onwards, Ms. M.C. worked to get him back. She started with supervised visits. She had developed a close relationship with J.O. from before, which strengthened over time to the point that she was considered part of Ms. J.O.’s family. The visits with N.C. increased in frequency and length until Ms. M.C. was permitted to take him for overnight visits. In August 2012, the CCAS returned N.C. to Ms. M.C.’s care, under a supervision order. Ms. M.C. was provided with subsidized housing for her and N.C., and N.C. was enrolled in daycare programs through the CCAS. Ms. M.C. went back to school and was starting to get her life in order. For two nights a week, when Ms. M.C. had night classes, Ms. J.O. babysat N.C. at her home.

[18] Throughout all of this time, Ms. M.C. and N.C. were constantly monitored by CCAS workers. This supervision included regularly scheduled visits every two weeks and unscheduled visits, as well as private access to N.C.. In addition to various CCAS workers assessing Ms. M.C. and N.C., there was a public health nurse who worked directly with Ms. M.C. and N.C. and he had regular medical checkups. There were two different day care providers, as well as Ms. J.O.. N.C. was still in diapers, so the day care workers would see his naked body on a regular basis, as did Ms. J.O.. On the nights she had N.C., she bathed him and got him ready for bed, so that he could go straight to bed after Ms. M.C. picked him up. The reports from every one of these workers were consistent: N.C. was well cared for, meeting all of his developmental milestones, healthy and happy. Nobody saw any indications of neglect or abuse. On the contrary, Ms. M.C. was seen by all to be mothering N.C. extremely well and as being on track to improve her life substantially. Her home was always a clean, tidy, and safe environment for N.C.. Her interactions with N.C. were seen to be loving and appropriate. This opinion was also shared by Laura Kucenty, who was a Pregnancy and Parenting Worker with Central Toronto Community Health Centre and who provided support to Ms. M.C. throughout this time. She met with Ms. M.C. regularly and said that she was excelling at school and planning to continue post-secondary education in the fall.

[19] The last CCAS visit to Ms. M.C.’s home was on June 19, 2013. N.C. appeared to be happy and well cared for. No injuries were noted. The interactions between Ms. M.C. and N.C. were appropriate and positive. The case worker scheduled one further visit for July 17, 2013. Given the progress made over the course of the supervision order and the apparent stability of the home situation, the CCAS expected to terminate the supervision order in August 2013 so that Ms. M.C. would have full custody of N.C. without any constraints.

(iii) J.F. Enters the Lives of M.C. and N.C.

[20] Ms. M.C. met Mr. J.F. on May 14, 2013. He moved into her townhouse at 168 W[…] Avenue on June 23, 2013. This was in contravention of the CCAS supervision order, as well as in contravention of the terms of Ms. M.C.’s lease.

[21] Upon moving into the home, Mr. J.F. spread his possessions all over the house. Photographs taken of the home by police after Ms. M.C. and Mr. J.F. were arrested demonstrate that every room was a complete mess, with clutter and various possessions piled everywhere. This is in stark contrast to the description of the home as being neat and clean by Ms. J.O. as well as the various social workers and public health officials who visited regularly. Those witnesses who were familiar with the condition of the home prior to Mr. J.F. being there were shocked by the pictures of the condition of the home after Mr. J.F. moved in. I recognize that some of the mess would have been caused by the police search of the premises, but not to a significant degree. Further, the condition of the home in those pictures is similar to what Mr. J.F.’s former landlord described as being the condition of his apartment prior to June 23, 2013.

[22] On the weekend of June 28-30, Ms. M.C. was supposed to bring N.C. for a visit with a new daycare provider as his previous daycare provider was moving to the United States on July 5. Ms. M.C. did not show up for the appointment, nor did she call. When the daycare agency called her, she said that N.C. was sick. During the first week of July, N.C. did not go to daycare. Ms. M.C. testified that this was because he had a cold. During the second week of July, N.C. again did not go to daycare, nor did Ms. M.C. take him to Ms. J.O. for babysitting that week. Ms. M.C. acknowledged in her testimony that she could not take N.C. to daycare or to Ms. J.O.’s home because of the marks and bruises on his body. She lied to Ms. J.O., telling her that she had taken N.C. to a clinic on the weekend and that he had an ear infection.

[23] Thus, for the last two weeks of his life, N.C. was isolated from everyone except Ms. M.C. and Mr. J.F..

C. The Testimony of the Informant

Background

[24] W.K. shared a segregation unit cell with Mr. J.F. at the Toronto Don Jail from September 21, 2013 to October 7, 2013. Subsequently, Mr. K’s lawyer contacted the police and advised that Mr. K had information to provide relating to the death of N.C.. On October 31, 2013, Mr. K was scheduled to appear at the Old City Hall courthouse to deal with his outstanding criminal charges. Detectives investigating the death of N.C. attended at the courthouse to meet with Mr. K and videotaped their interview with him. Before providing any information, Mr. K sought consideration from the officers in respect of his pending charges. Specifically, he wanted to avoid jail time. The officers refused to have any discussion that involved a quid pro quo and left, indicating that if Mr. K ever wanted to provide information “out of the goodness of [his] heart,” he could contact them again, but there would be no deal offered.

[25] In February 2014, Mr. K again contacted police. This time, he sought no promise of consideration and gave a statement under oath, which was videotaped. Mr. K testified before me at the Gardiner hearing. The defence argues that even if the evidence of Mr. K is admitted, it is so unreliable that it should be given no weight whatsoever. The Crown argues that although Mr. K’s evidence must be used with caution, it is nevertheless admissible and relevant, particularly to corroborate other evidence at trial.

Overview of Mr. K’s Testimony

[26] According to Mr. K, in the course of their many conversations, Mr. J.F. told him that: (1) he had assaulted Ms. M.C. on more than one occasion; (2) he used physical discipline against N.C., hitting him and slapping him; and (3) he had punched N.C. in the stomach the week before he died.

[27] Mr. K testified that Mr. J.F. had taped to the wall of their cell above the door a photograph of a young boy, cut out from the Toronto Sun. [2] He said that every night Mr. J.F. would curse the boy, blaming him for the fact that he was in jail, and saying things like “May you rot in hell.” He said that at first he had no idea who the child was, but that after a few days of utter boredom in segregation, he and Mr. J.F. started to play cards together and talk. Mr. K said that Mr. J.F. talked a lot and told him many details about his relationship with the boy, the boy’s mother, and the events that resulted in the murder charge against him.

[28] From the information provided by Mr. K, it is clear that Mr. J.F. talked to him in great detail about his relationship with Ms. M.C. and with N.C., the events that led to N.C.’ death, what happened after N.C.’ death, and the circumstances of his arrest. The overwhelming majority of these details were not available in the public domain and there would be no other way for Mr. K to obtain them, other than from Mr. J.F.. Examples of information Mr. K said Mr. J.F. gave him, and which are verified by independent evidence, include:

• The night before N.C.’ death (July 14) was the two-month anniversary of when Mr. J.F. met Ms. M.C.;
• Mr. J.F. moved into Ms. M.C.’s townhouse at the end of June;
• Prior to that, Mr. J.F. had lived in an apartment on D[…] Avenue from which he was evicted after a dispute with his landlord;
• Mr. K was familiar with the general layout of the townhouse and was also aware that Mr. J.F. had left marijuana and a handgun there;
• Mr. J.F. was selling bootleg CDs and videos;
• Mr. J.F. reported that he had previously been a security guard and talked frequently about his mother working with judges within the court system;
• N.C.’ father had assaulted Ms. M.C., including stabbing her in the lungs, and was in jail;
• N.C.’ older brother, from the same father, had been taken by the CCAS;
• Ms. M.C. was trying to get full custody of N.C. and CCAS had scheduled an appointment to do an inspection for the week of July 15;
• N.C. did not go to school for the week prior to his death;
• When N.C. was sick, he gave him ginger and garlic tea, a remedy he had learned from his mother; and,
• Mr. J.F. had gone back to the house to see the dog after leaving the police station, but the police prevented him from staying there and had already taken the dog. The police then tricked him into meeting them at the Victoria Park subway station and arrested him there.

[29] Mr. K also provided details about the assaults by Mr. J.F. on Ms. M.C. and the nature of his interactions with N.C., as well as an account of one assault on N.C. that would be consistent with the type of injury that caused his death.

[30] Mr. K described Mr. J.F. as being a control freak who talked a lot. He said Mr. J.F. even tried to control everything Mr. K did, including what he read, how he chewed his food, and how much toilet paper he used. It was clear from Mr. K’s evidence that he detested Mr. J.F..

The Dangers Associated with the Informant’s Evidence

[31] The dangers associated with relying on the testimony of a jailhouse informant are well-known and all too real. Numerous wrongful convictions have resulted from alleged confessions reported by jailhouse informants – stories which seemed compelling, but which were later proven to be completely false. Some of those situations have been the subject of public inquiries leading to extensive recommendations on how to approach such evidence. [3]

[32] At a minimum, one must be mindful that jailhouse informants are often unreliable witnesses for whom a standard caution per the Supreme Court’s decision in Vetrovec v. The Queen [4] will typically be required. Case after case has shown that these informants can be convincing liars and that they are highly motivated to lie in order to obtain even the smallest advantage, particularly in high profile cases or where there is either sympathy for the victim or antipathy for the accused. Nevertheless, in R. v. Brooks [5] the Supreme Court cautioned against “pigeon-holing” witnesses into particular categories such as jailhouse informants. It is therefore important to be alive to particular circumstances of individual informants that raise grounds for concern.

[33] Mr. K is an informant whose testimony raises many warning flags. He has an extensive criminal record, including convictions for crimes of dishonesty. He is an accomplished liar, with no compunctions whatsoever about lying under oath. He does not care about the consequences for anyone against whom he has made false accusations, even close family members. For example, in 2011 (while he was driving his vehicle even though his license had been suspended), he was stopped by police for running a red light. He blithely identified himself to the police as his own brother. When police learned that the driver was not Mr. K’s brother, he came into the station and gave a formal statement, which was recorded. Under oath, he again claimed he was not the driver, and this time he implicated his sister’s husband as the likely culprit. Ultimately, much later, he admitted it was him the whole time and pleaded guilty to the offence. What is striking, however, is the deviousness exhibited by this conduct as well as how absolutely credible Mr. K appeared to be during his interview, even though I knew for a fact that he was lying under oath for his own gain. He is a highly convincing and persuasive liar. The evidence before me demonstrated numerous other demonstrable lies told by Mr. K to others, including the police, and including under oath. It is not necessary to go into all of them. Suffice to say, his word means nothing; his oath means nothing; and he will say anything to keep himself out of jail.

[34] The Crown submits that in considering Mr. K’s credibility and reliability, I should take into account the fact that he was not motivated by personal gain because no offer or promise was made to him for his cooperation. I do not agree. It is clear Mr. K’s motivation at the outset was to obtain an advantage for himself in exchange for providing evidence against Mr. J.F.. More particularly, he did not want to do any further jail time for charges pending against him. He was forthright about that in his first meeting with the police. The police officers, as they should, turned down his offer and declined to even speak to him further. When Mr. K returned to speak to the police in February 2014, he gave the impression, and indeed said, that he was not seeking any favours. However, I do not believe that. At the time, Mr. K was serving an intermittent sentence on weekends. He was still facing charges of impersonation, obstructing police, and driving while disqualified. The Crown was seeking a six-month jail sentence for those offences. Mr. K knew better than to demand consideration before providing a statement; he had learnt from the previous occasion that this would get him nowhere. Instead he provided a statement “voluntarily” without any kind of a deal. In the course of that statement, he planted the seed that he was now afraid for his own safety in custody.

[35] Subsequently, Mr. K (through his counsel) was able to resolve the outstanding charges, after a guilty plea, on far more favourable terms than had been offered by the Crown earlier – terms that involved him serving no further time in jail. Part of that resolution process involved an in camera pre-trial with the judge who would be taking the plea. Then, upon Mr. K pleading guilty, both Crown and defence made a joint submission for a twelve-month conditional sentence, which was accepted and imposed by the sentencing judge. There is nothing untoward about a pre-trial conference in chambers. That is a normal procedural step in every trial. However, the circumstances of this arrangement raise the possibility that Mr. K was given some consideration for his cooperation with the police, based on concerns for his safety in jail. Obviously, I cannot know for sure that this is what happened, as it is not part of the court record in those proceedings. However, even if there was no deal made on that basis, in my view it is highly likely that Mr. K provided the statement to police in the hopes that he could parlay his cooperation into a deal to keep him out of jail. Either way, explicit deal or not, it is not safe to assume that Mr. K made his statement freely without hope of reward. Rather, I proceed from the assumption that it was likely given with the hope, if not the expectation, that there would be some later advantage for Mr. K.

[36] By the time Mr. K gave his statement, he had been out of custody on an intermittent basis with considerable opportunity to search for information on the internet and elsewhere. This is another red flag with respect to the reliability of his evidence.

[37] From Mr. K’s testimony it would appear that he has a strong aversion to offenders who have harmed children. In addition, it is clear that he harbours an intense personal dislike for Mr. J.F., regardless of the charges against him.

[38] In short, Mr. K is a highly unreliable witness with a track record of lying and falsely accusing others (even his own family) to gain an advantage for himself. It is likely that he provided his statement about disclosures by Mr. J.F. in the hope of obtaining an advantage for himself. In addition, he strongly dislikes Mr. J.F.. His evidence can only be used with extreme caution, and is generally unsafe unless specifically corroborated.

Admissibility versus Weight

[39] That said, the evidence provided by Mr. K is relevant and much of it can only have come from Mr. J.F.. Of course, that does not mean these statements were confessions by Mr. J.F.. It is important to be mindful that the information could have been communicated by Mr. J.F. as a description of the allegations against him, or what he thought Ms. M.C. was accusing him of, and that Mr. K deliberately mischaracterized this information as an admission by Mr. J.F. that he had actually done these things. Great care must be taken.

[40] However, there may still be portions of the information from Mr. K that can be used as part of the overall evidence on a particular point, especially where there is corroboration for it. The problems with Mr. K as a witness are matters going to the weight that can be given to his evidence, rather than the admissibility of the evidence itself. [6] In the sections that follow, I set out the substance of Mr. K’s evidence on the three central factual issues before me. Later, in making findings on these issues, I deal with the extent to which that evidence is helpful in light of the availability of the information elsewhere, any inconsistencies in that evidence with other evidence, and the extent to which it is corroborated by other evidence.

The Informant’s Testimony about Assaults on N.C.

[41] Mr. K testified that Mr. J.F. would discipline N.C.. He said Mr. J.F. told him that N.C. was very undisciplined and that his mother would let him have anything he wanted. Mr. J.F. also believed that the neighbourhood children were a bad influence and he stopped N.C. from playing with any of them. He described one occasion where he had shaken N.C. and left scratches on the child’s neck from his fingernails. Mr. K said that when Mr. J.F. would be talking to N.C.’ picture on his wall he would say things like, “You’re no good, just like your father and your older brother.”

[42] According to Mr. K, Mr. J.F. told him that on Saturday, July 6, he, Ms. M.C. and N.C. were walking past a McDonald’s restaurant and N.C. asked to go in and get a Happy Meal. When he was told “No” he had a temper tantrum. Mr. J.F. said he was upset by this behaviour and therefore disciplined N.C. when they got home by placing him on a table and punching him in the stomach with his fist several times. Mr. K said that Mr. J.F. elaborated that he hit N.C. “pretty hard” and that he “bashed the kid up pretty bad.”

[43] Mr. K further reported that Mr. J.F. told him that the child started to vomit that day or the next day, which continued all week, and that he and Ms. M.C. gave him herbal tea with ginger and garlic. N.C. was too sick from then on to go to school, but Mr. J.F. was afraid if he took him to a doctor he would be arrested. Mr. J.F. further told him that July 14 was the anniversary of the day Mr. J.F. and Ms. M.C. met and they were partying and doing drugs in the basement, and then went to bed upstairs. At 2:00 p.m. the next day, Mr. J.F. got up to go to the washroom on the second floor and noticed that the child had vomited. He checked him, but could find no pulse. He called Ms. M.C. and she was crying, but they did not call 911 because he knew the child was dead and he was afraid. According to Mr. K, Mr. J.F. told him they spent two hours trying to decide what to do, and then took the child to the hospital. He also reported that Mr. J.F. said he had “pretended” to do CPR for part of that time.

The Informant’s Testimony about Assaults on M.C.

[44] Mr. K testified that Mr. J.F. told him that when he was punching N.C. in the stomach after the McDonald’s incident, Ms. M.C. tried to intervene, so he hit her too. He said that he hit her in the face, and that this was not the first time he had assaulted her. Mr. J.F. told Mr. K that these incidents were related to Ms. M.C. having other boyfriends. Mr. J.F. reportedly described an incident when one of these guys called Ms. M.C. for a “booty call” and that, as a result, Mr. J.F. beat her up.

D. Issue One: Did J.F. Assault M.C.?

Physical Evidence of Injuries to M.C.

[45] At the time of her arrest, police officers noticed that Ms. M.C. had some visible injuries. The injuries were described in notes and photographed. They looked recent and included bruises on her right cheek, right temple, ears, left wrist, back, and neck and a bump/scratch on the left side of her forehead.

Testimony of M.C.

[46] M.C. testified that Mr. J.F. had begun assaulting her from the beginning of June 2014. She said his behaviour became very possessive and controlling. He required her to account for where she was at all times. He objected to her walking with N.C. to daycare because he believed she would meet men along the way. He insisted that she take the streetcar and text him as to her whereabouts at various points along the way.

[47] She said Mr. J.F. was jealous, frequently making baseless accusations that she was cheating on him with other men. On those occasions, he would often be assaultive. She said that the first such incident involved Mr. J.F. choking her in the course of an argument. Other times, he would slap her in the face and head with enough force to cause her glasses to fly off. She described him also taking his two fingers and flicking her on the head and in her ear.

[48] Ms. M.C. felt isolated and afraid. She said that Mr. J.F. objected to her friends and she had to stop seeing them. She also could not communicate with them when Mr. J.F. was around. She stopped attending family functions at Ms. J.O.’s home and spoke to her less frequently than before.

[49] Ms. M.C. testified that things got worse when Mr. J.F. moved into her townhouse. She did not want him to move in and was not permitted to have him there under the terms of her lease and the CCAS supervision order. However, she said she was afraid to rock the boat because it would give him another reason to attack her. After the move, Mr. J.F. literally took over the home, with his belongings strewn everywhere. Ms. M.C. said she felt like a prisoner in her own home. If she left the room where Mr. J.F. was, she was required to leave her phone behind where he could see it. Her phone always had to be available to Mr. J.F. so that he could see what was on it at any time. He controlled her every action. He would flick her in the head and ear constantly as a way of getting her attention.

[50] Some of the assaults were more extreme. Ms. M.C. described one such event on the night before N.C. died. It started when an old friend from high school, Z.C., sent Ms. M.C. a text message at about 1:00 a.m. on Sunday, July 14, simply touching base, saying “Hey.” Ms. M.C. testified that Mr. J.F. was angry about this call and insisted that she call the person who texted the message so that he could listen in. She called Mr. Z.C. and spoke with him briefly, after which she said Mr. J.F. slapped her in the face with sufficient force that the chair she was sitting on rolled backwards. He also punched her in the back and chest and dumped a large glass of water on her. He was verbally abusive, calling her a slut and a whore and telling her that guys were just using her for sex. After this beating, Ms. M.C. called Mr. Z.C. back and said, “Thanks a lot” in a sarcastic tone of voice. She testified that as a result of this assault she sustained a bump on her forehead, a mark on her right cheek and some bruising on her back. She said these were the injuries the police officers noted on her at the time of her arrest.

Corroborative Evidence

[51] Because nobody else witnessed the assaults on Ms. M.C., much hinges on the credibility and reliability of her evidence. On the whole, I found Ms. M.C. to be a credible witness with respect to these assaults by Mr. J.F.. However, I did have some concerns about the credibility of her evidence as to the assaults on N.C. (as described in more detail below), which causes me to be cautious about basing any decision on her evidence alone. I have therefore considered whether there is corroborative evidence to reinforce my confidence in the truthfulness of Ms. M.C.’s evidence on this point.

[52] Numerous witnesses testified about Mr. J.F.’s controlling behaviour. The police officers who attended at the hospital and later dealt with Mr. J.F. and Ms. M.C. noted that Mr. J.F. dominated the conversation and answered questions for Ms. M.C., even questions that were personal to her, such as her age. Many of the staff at the hospital also noticed the same behaviour. One of the hospital staff was sufficiently concerned about Mr. J.F.’s conduct towards Ms. M.C. that she called hospital security to be on hand. Mr. K, the jailhouse informant, also described Mr. J.F. as being a control freak who had to control everything around him, even the amount of toilet paper Mr. K was using. The photographs of the home taken by police after N.C.’ death confirm Ms. M.C.’s description of the state of the home and the degree to which Mr. J.F. had taken it over. Child care workers who visited the home prior to Mr. J.F. moving in were shocked at the change in the state of the place as depicted in those photographs.

[53] Ms. M.C.’s cell phone records were exhibits at trial. Her text messages are replete with her constantly telling Mr. J.F. where she was, what she was doing and why she was running late. These were constant blow-by-blow accounts of her movements. There were literally hundreds of such messages. Significantly, although Mr. J.F. would respond from time to time, he did not account to Ms. M.C. as to his own whereabouts and movements. Ms. J.O. testified that she observed Ms. M.C. constantly on her cellphone with Mr. J.F. whenever she was picking up or dropping off N.C..

[54] Ms. M.C. had reported to her friend K.R., who lived in Montreal, that Mr. J.F. was hitting her and that she was afraid of him. She started telling Ms. K.R. about this early in July, well in advance of any police involvement and before N.C. had begun vomiting green bile. However, Ms. M.C. admitted at trial that she told Ms. K.R. that Mr. J.F. never hit N.C.. Ms. M.C. said that she lied to her friend about that because she could not admit to being such a bad mother and because she knew Ms. K.R. would intervene immediately if she was aware that N.C. was being abused. Ms. M.C. was afraid she would lose custody of N.C..

[55] The evidence of Z.C. was part of the agreed facts on this hearing. Mr. Z.C. worked at a movie theatre. He sent a text to Ms. M.C. at 1:00 a.m. when he finished his shift on the Saturday night/early Sunday morning (July 13/14). He said it was not uncommon for Ms. M.C. to be communicating by phone or on Facebook at this time of night. After sending the initial text, Mr. Z.C. called her and Ms. M.C. said that she was with her boyfriend at the moment and they could talk another time. He apologized for calling so late and agreed to talk another time. He described Ms. M.C.’s tone of voice as calm and nothing seemed wrong. This call was 58 seconds in duration. Shortly after that call, Ms. M.C. called him back. She said, “Thanks a lot – don’t call me again.” That call was 8 seconds in duration. Mr. Z.C. said that in the second call Ms. M.C.’s tone of voice was “cold, frustrated, angry and upset.”

[56] Mr. K, the jailhouse informant, testified that Mr. J.F. told him he had “beat up” Ms. M.C. after some guy called late at night for a booty call.

[57] The actual injuries to Ms. M.C.’s body are also corroborative of her allegation of assault. There is also a striking similarity between the injuries on N.C.’ ears and those on Ms. M.C.’s ears. She had testified that Mr. J.F. would “discipline” both of them that way, by flicking their ears and head sharply with two fingers.

Analysis and Conclusion: J.F. Assaulted M.C.

[58] I am satisfied beyond a reasonable doubt that Mr. J.F. assaulted Ms. M.C. on numerous occasions over the course of their brief relationship. The injuries on Ms. M.C. are highly corroborative of her description of the violent assault following the call from Mr. Z.C. not long after midnight, less than 24 hours before her arrest. Those injuries were fresh. The evidence of Mr. Z.C. as to the phone calls with Ms. M.C. is also important corroboration of her testimony about this incident. This is also an instance where the testimony of Mr. K is of assistance as corroboration. There are sufficient other details from Ms. M.C. and Mr. Z.C. about the assault that are similar to what Mr. K reported, to make at least this portion of his evidence reliable. I believe Mr. J.F. told Mr. K about beating Ms. M.C. after her telephone conversation with Mr. Z.C..

[59] I found Ms. M.C.’s description of Mr. J.F. flicking both her and N.C. on the ears with his fingers to be compelling. This is an unusual kind of abuse, and not a detail that would likely be invented if describing an assault. The similar nature of the injuries on Ms. M.C.’s ears and N.C.’ ears also corroborates that testimony.

[60] As I mentioned at the outset, Ms. M.C. was no stranger to being victimized. She was completely dominated by Mr. J.F. and paralytic as to what to do about it. Her failure to report this abuse, or to throw Mr. J.F. out of her house, is not surprising. It is understandable. Indeed, given her tragic history, it is almost predictable.

[61] I completely reject the defence suggestion that Ms. M.C. could have, or would have, self-inflicted these injuries on her own body. There is absolutely no evidence to support such a theory. Furthermore, apart from Mr. J.F., there is nobody else who could have done it. Ms. M.C. was under Mr. J.F.’s control and supervision at all times. Nobody else would even have had the opportunity.

[62] I am satisfied beyond a reasonable doubt that the assault after Mr. Z.C.’s call occurred substantially as described by Ms. M.C.. I am also satisfied beyond a reasonable doubt that Mr. J.F. assaulted her on numerous other occasions by hitting her in the face and head and flicking her in the ears.

E. Issue Two: Did J.F. Assault N.C.?

Physical Injuries to N.C.

[63] At the time of his death, N.C.’ abdomen was green, a sign of putrefaction. There were two parallel scratches on his stomach. The autopsy showed that he died as a result of sepsis after his small intestines ruptured. Dr. Michael Pollanen, an expert pathologist, testified, and all parties accepted, that this injury was caused by a blow to the abdomen. I will deal with whether Mr. J.F. inflicted that blow in the section that follows. First, I will consider whether the other injuries N.C. sustained prior to his death were as a result of assaults by Mr. J.F..

[64] In addition to the abdominal injury, there were numerous other cuts and bruises on N.C.’ body, including:

• a small cut and two abrasions on his nose;
• bruising, swelling and an abrasion on the right side of his face;
• eight small puncture-type wounds to his left face;
• a number of scrapes and bruises on his left ear;
• numerous red abrasions at the back of his neck and back, some of which looked to be indentations from fingernails;
• abrasions to both the left and right side of his neck;
• multiple abrasions and a bruise on his chest;
• two parallel scratch marks on his abdomen;
• red abrasions and punctate abrasions on his biceps and left tricep;
• an abrasion on his right hand;
• five bruises on his left thigh;
• cuts on his lips; and,
• multiple injuries and bruising to his head, with subscalp bleeding and a subdural hemorrhage.

[65] Dr. Pollanen testified that in his opinion, none of these injuries contributed to N.C.’ death. There was no evidence of broken bones and the skull was not fractured. Dr. Pollanen testified that the multiple injuries to N.C.’ head were caused by repeated blunt impacts to the head, some of which were recent, and others older, ranging in age from days to weeks prior to N.C.’ death.

Potential Causes of Injuries

[66] There are a number of possible explanations for the injuries N.C. sustained. A few, but only a few, of the injuries might have resulted from resuscitation attempts on the day of his death. N.C. could have injured himself accidentally, by falling or while playing with other children or the family dog. Alternatively, the injuries could have been inflicted upon him by his mother, or by Mr. J.F., or both.

[67] Even if I were to accept that Mr. J.F. made a concerted effort to revive N.C. when he found him in his crib not breathing, there are very few injuries that could have resulted from those efforts. The nature and location of the vast majority of the injuries simply cannot be explained that way.

[68] Up until July 2013, N.C. was a completely healthy child, free from injuries. He was seen on a regular basis by a doctor and no injuries were noted. He was subject to frequent visits and inspections by CCAS workers, a public health nurse, and a family home visitor working with the public health nurse, all of whom were specifically checking to ensure that he was safe; they saw nothing of concern. He attended day care regularly during the week for extended periods of time; the daycare workers saw no injuries. Two nights a week, he also had a babysitter (Ms. J.O.), who looked after him while his mother attended night classes. On those nights, Ms. J.O. bathed N.C. and got him ready for bed. She also saw no injuries. This was not a child who was accident prone or who previously showed any signs of abuse. Notwithstanding that uneventful history, by July 14, 2013, it is clear that N.C. had sustained multiple injuries all over his body. Those injuries were not there at the end of June when he was seen by his daycare worker and his babysitter.

[69] Dr. Pollanen testified, and I accept, that the injuries were sustained at various different times. Some had largely healed; some had just started to heal; and some were relatively fresh.

[70] N.C. had just recently turned two. He was not old enough to be out and about in the community playing with other children on his own. He was at home for the entire two weeks prior to his death. During that time, he was not playing with other children. He could surely have sustained some of his cuts and bruises just by virtue of being a toddler – by falling down, bumping into things, coming into contact with the family dog, and the like. These are a normal part of every child’s life. However, no child could have sustained all of these injuries accidentally in a two or three week period. The sheer number and nature of these injuries makes that simply impossible.

[71] It follows that at least some of these injuries were deliberately inflicted on N.C.. There are only two people who had access to N.C. during that period of time: M.C. and J.F.. Each pointed the finger at the other.

Testimony of M.C.

[72] M.C. denied ever hitting N.C.. She said if it was necessary to discipline him for anything, she would do so verbally or give him a time out in his room. She testified that all the various cuts and bruises on N.C.’ body were inflicted by Mr. J.F.. She said she was present when Mr. J.F. inflicted some of the injuries, but that even when she did not see the injury happen, she knew Mr. J.F. did it because he was the only person other than herself who had access to N.C. in the two weeks or so prior to his death.

[73] Ms. M.C. testified that Mr. J.F. was insistent on having total control, not just with her, but also with N.C.. He criticized her constantly for being a bad mother and said that N.C. had never been taught proper discipline. She said that he would compare her unfavourably to Caribbean mothers who knew how to discipline their children and who would hit them when they deserved it. According to Ms. M.C., Mr. J.F. would strike N.C. whenever he thought he was misbehaving or otherwise needed discipline, such as, for example, when he failed to say “please” or “thank you” when given something. She also said that sometimes Mr. J.F. shook N.C.. Mr. J.F. would say that N.C. was evil, just like his father (Mr. J.D.). She testified that Mr. J.F. would hit N.C. on various parts of his body, including his face and head, and would flick him with two fingers in the head and ears, the same way as he would sometimes do to her.

[74] Ms. M.C. also testified that N.C. had become fearful of Mr. J.F..

Testimony of the Informant

[75] As I have noted above, it is necessary to be extremely cautious in dealing with any evidence from Mr. K, the jailhouse informant. However, the informant testified that Mr. J.F. told him a number of things about N.C., including the following:

• N.C. was very undisciplined;
• Anytime N.C. wanted anything, his mother would give it to him;
• Mr. J.F. had isolated N.C. from other children in the neighbourhood so that he could discipline him properly;
• Mr. J.F. had shaken the child, which had resulted in scratches on his neck from his fingernails; and
• N.C. was bad, just like his father.

Analysis and Conclusion: J.F. Assaulted N.C.

[76] There are many reasons for being cautious about relying on the evidence of either Ms. M.C. or the informant.

[77] With respect to the informant, I attach no weight to the alleged admissions made by Mr. J.F. that he had assaulted N.C.. As I have already discussed, Mr. K was motivated to obtain an advantage for himself and he detested Mr. J.F.. He knew that Mr. J.F. was charged with murder and it could easily be the case that Mr. J.F. told him that there were cuts and bruises on N.C.’ body. It would have been easy for Mr. K to extrapolate from that and say that Mr. J.F. had admitted to causing those injuries. It would not be safe to rely on such evidence. However, some of the other details provided by Mr. K are compelling and provide corroboration for some of the testimony of Ms. M.C.. [7] In particular, Mr. K said that Mr. J.F. considered N.C. to be in need of discipline, considered Ms. M.C. to be a poor mother, and saw himself in the role of disciplinarian in relation to N.C.. Mr. K’s evidence about Mr. J.F. describing N.C. as being inherently bad, just like his father, is also a compelling detail. These details are unusual and were not available in the public domain. I accept that Mr. K could only have gotten this information from Mr. J.F.. It does not mean that Mr. J.F. necessarily assaulted N.C., but it provides substantial corroboration for Ms. M.C.’s evidence as to the context in which these injuries on N.C. were inflicted.

[78] With respect to Ms. M.C., there are also significant credibility issues. Ms. M.C. previously told her friend Ms. K.R. that Mr. J.F. had never assaulted N.C.. Ms. M.C. also initially told the police that Mr. J.F. had not assaulted N.C., and only changed her story when confronted with the fact that the police believed one of them had done it and if it wasn’t Mr. J.F., then it was her. Indeed, in her initial statement to the police, Ms. M.C. told many, many lies which she subsequently retracted. Ms. M.C. maintained Mr. J.F. told her to lie to the police about the source of N.C.’ injuries. Initially, she said that Mr. J.F. told her that when they were both in the backseat of the police cruiser on the way from the hospital to the police station. When confronted on cross-examination with the videotape of the entire time they were in the cruiser, she said that it must have been in the waiting room of the station that Mr. J.F. told her that. However, from text messages she exchanged with Mr. J.F. immediately after she was interviewed by police, it looks more like Ms. M.C. was telling Mr. J.F. what lies to tell the police, rather than the other way around. In addition, I have serious concerns about Ms. M.C.’s testimony about her recollection of seeing Mr. J.F. hit N.C. in the stomach on several occasions, as well as her evidence about an incident she claims to recall on the night of Saturday, July 13, when it appears from cell phone records that Mr. J.F. was not at home at the time.

[79] There are also three pieces of evidence that give me concerns about whether Ms. M.C. may herself have assaulted N.C.:

(1) Ms. M.C. initially said that she had never physically disciplined any of her children. However, CCAS records show that in May 2010, prior to Ms. M.C.’s first two children being apprehended, the older child had reported to a child care worker that his mother had spanked him in the head, legs and bum. This was at a particularly low point in Ms. M.C.’s life. She was depressed and was cutting herself, as well as neglecting her children. The CCAS provided Ms. M.C. with counselling and education on better ways to discipline her children, but did not seize the children at that time. However, it was not long after that point when Ms. M.C. voluntarily placed her children back into the care of the CCAS. The fact that Ms. M.C. had previously resorted to striking a child when she was at a low emotional point in her life is troubling. By July, 2013 she was again at a low point. For the two weeks prior to N.C.’ death, he had been ill, more needy, crying, fussy and demanding. Ms. M.C. was also feeling very stressed as a result of Mr. J.F.’s physical and emotional abuse of her. I do note, however, that even if Ms. M.C. had used physical discipline on her other children in the past, she had never done so to an extent that caused cuts and bruises such as those suffered by N.C..

(2) On the afternoon of July 5, 2013, Ms. M.C. was at home with N.C. and Mr. J.F. was out. Ms. M.C. texted Mr. J.F. constantly as to what was happening. At one point, referring to N.C., she texted, “I’ve been on his case all this time. He’s gotten a few from me for fooling around and not colouring.” Ms. M.C. explained that Mr. J.F. was of the view that N.C. should not be wasting his time, but rather doing something constructive like drawing or colouring. Ms. M.C. acknowledged that this message might sound like she hit N.C., but denied this was the case. She said she would discipline N.C. by giving him brief time outs and that was what she was describing. However, a photograph taken of N.C. on July 6 shows that he had a cut on his nose, an injury which Ms. M.C. previously claimed had been inflicted by Mr. J.F. a week later and which she first noticed on July 14. Ms. M.C. insisted, however, that she did not cause that injury, and that she did not cause any of the injuries on N.C.’ body.

(3) Ms. M.C. told her friend Ms. K.R. that Mr. J.F. was assaulting her, but that he had never assaulted N.C.. On July 11, she texted her friend that she was feeling very stressed and that she felt bad about how she was treating N.C.. Ms. M.C. denied that this was a reference to having hit N.C. on July 5. She said she was talking about not paying enough attention to N.C..

[80] Because of these three troubling details and because of the issues with respect to Ms. M.C.’s overall credibility, I am not able to say that I am satisfied beyond a reasonable doubt that Ms. M.C. was not responsible for any of the injuries on N.C.’ body. While I certainly would not be satisfied of her guilt beyond a reasonable doubt, and would not even be able to say it was likely that she assaulted her child, I think it is at least possible that she caused some of the injuries on N.C.’ body. However, I am absolutely confident that she did not do all of it, or even most of it.

[81] There was not a mark on that child for two years. Ms. M.C. had worked very hard to get her son back and she knew that if everything went well with the CCAS review in the week of July 15, she would get unsupervised full custody of N.C.. In that context, it is simply not believable that she would suddenly start a pattern of beating her child and leaving marks all over his body. I believe Ms. M.C.’s evidence about Mr. J.F. being domineering and a disciplinarian. I also believe her evidence that N.C. had become afraid of Mr. J.F.. Mr. K’s testimony also provides some corroboration for that context. In addition, Ms. J.O. provided some corroboration of this detail. She reported that on June 25, 2013, the last time she saw N.C., he was unusually clingy after his mother dropped him off and left for her class. Then, when Ms. M.C. returned to pick N.C. up, he did not want to go with her, which was also unusual. He had a bit of a tantrum and Ms. M.C. said to him, “Daddy’s on the phone. You better stop.”

[82] I am not able to say with confidence that Mr. J.F. inflicted every injury seen on N.C.’ body. It is possible that some of it was done by Ms. M.C.. However, I am certain that Mr. J.F. was the instigator of violence in the guise of discipline being visited upon N.C. and that he did the vast majority of the damage. He saw himself as a father figure and took upon himself the role of disciplining the child. He was an authoritarian and used physical discipline to force his will on others, including N.C.. I am satisfied beyond a reasonable doubt that Mr. J.F. hit N.C. on numerous occasions, including on his face, head and ears. None of these injuries were life-threatening. Nevertheless, they constitute despicable assaultive behaviour on a tiny, vulnerable two-year-old child. These assaults are an aggravating factor on the sentencing for manslaughter.

F. Issue Three: Did J.F. Inflict the Fatal Injury?

Nature of the Fatal Injury to N.C.

[83] Dr. Pollanen testified that N.C. died from complications of intestinal injuries caused by a blunt force trauma to his abdomen. The blow or blows to his stomach resulted in tearing and shearing of the walls of his intestines, which ruptured, spilling some content into his abdominal cavity. The resulting sepsis caused N.C.’ death. Prior to his death, N.C. was feverish, in pain and vomiting green bile. However, his condition was left untreated and he died as a result. Appropriate medical intervention would have saved his life.

[84] Objective scientific data alone cannot determine the degree of force required to perforate the intestines. There is considerable literature that even a minor or trivial force could be sufficient to cause such an injury. Dr. Pollanen conceded this point on cross-examination. There is nothing from the physical examination of N.C.’ body to indicate whether there was only one blow, or more than one, and nothing to demonstrate the force of that blow. The force could have been delivered intentionally, such as by a punch or kick in the abdomen; or it could have been delivered accidentally; or it could have been caused by the child falling onto a rigid object.

[85] Dr. Pollanen estimated that the blunt force trauma would have occurred within days of N.C.’ death, likely less than three days.

Potential Causes of the Fatal Injury

[86] On the evidence before me, there are four possible causes of the fatal injury N.C. sustained:

(1) a deliberate blow administered by J.F.; (2) a deliberate blow administered by M.C.; (3) an accidental fall onto an object; or, (4) an accidental injury from the family dog.

[87] The blow to the stomach cannot be looked at in isolation from the other injuries on N.C.’ body. Given that the majority, and perhaps all, of those injuries were inflicted by J.F. in a misguided notion of discipline, it is perhaps tempting to conclude that he must have caused this injury as well. However, a strong likelihood is not proof beyond a reasonable doubt. It is therefore necessary to determine whether the other potential causes raise a reasonable doubt in this case.

Accidental Fall

[88] N.C. slept in a crib. However, he was an active two-year-old and it is certainly possible he could have climbed out of the crib. There was a lot of clutter in N.C.’ room, including a wooden chair in proximity to his bed. Ms. M.C. admitted that on occasion she would leave N.C. alone in his crib and go hang out with her friend who lived in a unit immediately behind hers, with adjoining backyards. It is therefore possible that N.C., while unattended, climbed out of his crib and fell on an object on the floor, or on the back of a chair, thereby injuring his abdomen – possible, but in my view, not likely. If N.C. had gotten out of his crib, Ms. M.C. would have known about it. Also, Ms. M.C. denied having left N.C. alone at any time during the period after Mr. J.F. had moved into their townhouse.

[89] I have considered whether an accidental injury would have been more likely to have resulted in Ms. M.C. taking the child to a doctor. I think not. First, if there was an accidental fall, it would have occurred when Ms. M.C. left the child unsupervised. This was not something she would want to admit given the CCAS involvement. Second, the child’s body was battered. He could not be taken to a doctor or hospital without concerns being raised about the other injuries. Regardless of whether the blow to the abdomen was deliberate or accidental, the same incentive to cover it up existed.

The Dog

[90] Ms. M.C. owned an 85-pound “pit bull” named Tyson who was between one and two years old. She testified that N.C. was never left with Tyson unsupervised. For the most part, Tyson was kept on the ground floor area in his crate. Also on that level was a living room with a television, which is often where N.C. would play. The kitchen was one floor up from that.

[91] On cross-examination, Ms. M.C. agreed that on Friday, July 12, there had been an incident involving N.C. and the dog. She said that Mr. J.F. was cooking in the kitchen and she had left N.C. alone in the living room. Tyson had been in his crate. Something happened that caused N.C. to cry and both she and Mr. J.F. ran to the living room. Tyson had somehow managed to get out of his crate and was in the living room. They could not determine what had caused N.C. to cry. Ms. M.C. could not recall whether N.C. was lying on the floor when they got there.

[92] That same evening, N.C. started vomiting green bile, a condition that continued and worsened through that night and all through Saturday and Saturday night until N.C.’ death on Sunday at some time before 2:00 in the afternoon. On Friday evening, Ms. M.C. started a series of Google searches on topics such as: blunt abdominal trauma; stomach injury symptoms; vomit in children; what causes green vomit; toddler throwing up green bile; and when to worry about vomiting. The timing of these searches in relation to the incident with the dog is somewhat suggestive of the dog being the cause of the injuries.

[93] On the other hand, at the time of N.C.’ death, both Mr. J.F. and Ms. M.C. decided to divert attention from themselves by blaming the dog for injuries to N.C.. This was a deliberate strategy for both of them, regardless of which of them hatched the plan. Oddly enough, the fact that they were, in effect, conspiring to blame the dog causes me to think it probably was not the dog. However, an accidental encounter between N.C. and the dog would be capable of causing the injury, and it is difficult to rule it out completely, particularly given the timing.

M.C.

[94] Ms. M.C. obviously had the opportunity to have inflicted this injury. Further, by the evening of Friday, July 12, she was doing Google searches with respect to abdominal injuries. That is highly suggestive that she knew N.C. had been hit in the stomach. Further, it suggests that she either hit N.C. herself, or she saw him injured that way by someone or something else.

[95] As I have already found, it is at least possible that some of the injuries on N.C. were caused by Ms. M.C.. That being the case, there is no logical basis for distinguishing between the blow to his stomach, the cut on his nose, or the bruises on his legs. It is unknown which, if any, of those were caused by Ms. M.C..

J.F.

[96] There are two potential witnesses casting Mr. J.F. as the culprit for the fatal blow to N.C.’ stomach: (1) Mr. K testified that Mr. J.F. confessed to him that he had punched N.C. in the stomach to discipline him for a tantrum outside McDonald’s; and, (2) Ms. M.C. testified that she saw Mr. J.F. punch N.C. in the stomach.

[97] The press coverage after N.C.’ death included a suggestion that his death had been caused by a blow to the stomach. This information would have been easily accessible to Mr. K prior to his statement to the police. Therefore the fact that he knew the death had been caused by a blow to the abdomen is not a circumstance that he could only have obtained from Mr. J.F. and does nothing to support the reliability of his evidence. The further details given by Mr. K as to how and when the blow was administered are not corroborated by Ms. M.C., who according to Mr. K, was there at the time. Further, Mr. K said that Mr. J.F. told him this occurred on Saturday, July 6. Although it is possible that the injury occurred a week before death and the ruptured intestines and sepsis did not manifest themselves for several days thereafter, that is not fully consistent with the most likely time scenario testified to by Dr. Pollanen, who thought it most likely that the trauma occurred less than three days before death. As I have already said, Mr. K is an unreliable witness. In my view, it is not safe to take his evidence on this point into account in deciding whether Mr. J.F. administered the fatal blow, and I have not done so.

[98] Ms. M.C. is also an unreliable witness on this point. Initially, Ms. M.C. took the position that Mr. J.F. never hit N.C.. Subsequently, and arguably in a situation where she knew it was him or her, she said she had seen Mr. J.F. hit N.C., but that she had never seen him hit N.C. in the stomach. She maintained that position even as of the time of her own guilty plea and sentencing. She said that she had left N.C. at home with Mr. J.F. on the Thursday night when she went to school (July 11) and that afterwards she noticed marks on N.C.’ stomach and he started having far more severe symptoms than he had earlier. She said that was why she started doing the Google searches on Friday, July 12. The clear implication was that Mr. J.F. must have hit N.C. in the stomach while she was out. Still, however, she maintained that she had not actually seen that happen.

[99] Just days before Ms. M.C. was to testify before me, she disclosed for the first time that she had actually seen Mr. J.F. punch N.C. in the stomach on several occasions, with sufficient force to take his breath away. She said that she had not reported this earlier because she felt it would put her in an even worse light, but that she now wanted to come clean. None of her explanations for why she failed to disclose this before, or why she chose to do so now, make sense. Perhaps that is because Ms. M.C. is simply not able to think rationally about any of this, or perhaps it is because she is lying.

[100] I note that Ms. M.C. now has an additional motive to fix Mr. J.F. with responsibility for assaulting N.C.. She knows she will never get custody of her fourth child, the one fathered by Mr. J.F.. That child is a Canadian citizen and is currently in the protective custody of the CCAS. Once Ms. M.C. finishes serving her sentence for manslaughter (which is imminent), she will be deported to the Dominican Republic, from whence she came. There is an ongoing proceeding in the Ontario Court of Justice in which Mr. J.F.’s mother is attempting to get custody of that child, over the objections of the CCAS. Ms. M.C. is strongly opposed to Mr. J.F. ever having access to the child, a position that is obviously not surprising. However, it does give her an additional motive to blame Mr. J.F. for the injury that caused N.C.’ death.

[101] In sum, Ms. M.C.’s earlier failure to report having seen Mr. J.F. hit N.C. in the stomach, along with her multiple prior inconsistent statements, and her strong motivation to put the blame on Mr. J.F., undermine the credibility of her evidence on this point.

Analysis and Conclusion: Uncertain as to Cause

[102] I am not able to say with any degree of certainty that Mr. J.F. inflicted the blow to the abdomen that caused N.C.’ death. Assault by him is one of four possible explanations. I am able to rank these four explanations in terms of their respective likelihood as the true cause of N.C.’ death. In my opinion, Mr. J.F. is the most likely cause. However, these potential other explanations cause me to have a reasonable doubt as to whether it was Mr. J.F. who punched N.C. in the stomach causing the fatal injury.

G. Summary of Conclusions

[103] I am satisfied beyond a reasonable doubt that J.F. abused M.C. physically and emotionally over almost the entire time of their relationship. I do not necessarily accept all of Ms. M.C.’s evidence as to each and every incident of physical assault. However, they were numerous and, at a minimum, he assaulted her violently following the phone call by Mr. Z.C. not long after midnight, less than 24 hours before her arrest. I am also satisfied beyond a reasonable doubt that he repeatedly slapped her in the head and flicked her ears with two fingers.

[104] I am satisfied beyond a reasonable doubt that J.F. hit N.C. in the head and face and ears and various other parts of his body. He was responsible for many of the injuries to N.C.’ body that showed up on autopsy, although I cannot be sure that he inflicted each and every one of them. I note as well, that even if Ms. M.C. inflicted some of these injuries, she did so at a time when she herself was being physically abused by Mr. J.F. and was extremely stressed. She and N.C. had been doing very well until Mr. J.F.’s toxic presence was injected into their daily lives at the end of June, 2013. From then on, N.C. was in a spiral leading to his death.

[105] I cannot be satisfied beyond a reasonable doubt that Mr. J.F. inflicted the blow to N.C.’ abdomen that resulted in his death.

MOLLOY J.

Released: May 24, 2017

Footnotes:

[1] R. v. Gardiner, [1982] 2 S.C.R. 368. [2] This was a photograph of N.C. that appeared in the Toronto Sun with an article about his death and the arrest of Ms. M.C. and Mr. J.F.. [3] The Honourable Peter Cory, Commissioner, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Ministry of the Attorney General, 2001); Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (Toronto: Ministry of the Attorney General, 1998); Royal Commission on the Donald Marshall, Jr., Prosecution (Halifax: McCurdy’s Printing and Typesetting Limited, 1989). [4] Vetrovec v. The Queen, [1982] 1 S.C.R. 811. [5] R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at para. 5. [6] R. v. Brooks, 2000 SCC 1, [2000] 1 S.C.R. 237, 2000 SCC1; R. v. Terry, [1996] 2 S.C.R. 207; R. v. Campbell, [2005] O.J. No. 4669 (C.A.). [7] R. v. Roks, 2011 ONCA 526, at para. 67.