COURT FILE NO.: 1919/17

DATE: 20180308

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Kevin Paul Dunn

Defendant

Counsel:

Krista Leszczynski, for the Crown

Sharon Murphy, for the Defendant

HEARD: September 19, 20, 21, 25, 26 and 27, 2017

Justice R. Raikes

[1] There are two fundamental principles that apply to every criminal trial:

a. The presumption of innocence; and

b. The requirement that the Crown prove each constituent element of the offence beyond a reasonable doubt to displace the presumption of innocence.

These principles apply regardless of the offence, the accused or the alleged victim.

[2] The accused, Kevin Dunn, stands charged that:

1. He assaulted Aurora Cline, then three months old, on August 18, 2015 in Sarnia contrary to s. 267(b) of the Criminal Code.

2. He wounded Aurora Cline thereby committing an aggravated assault on August 18, 2015 in Sarnia contrary to s. 268 of the Criminal Code.

3. He assaulted Whitney Cline with a weapon – a pillow - on August 18, 2015 in Sarnia contrary to s. 267(a) of the Criminal Code.

4. He uttered a death threat to Whitney Cline on August 18, 2015 in Sarnia contrary to s. 264.1(1) of the Criminal Code.

[3] Mr. Dunn pleaded not guilty to each of these charges when arraigned. Following the close of the Crown’s case, Mr. Dunn pleaded guilty to count 3 – the assault on Ms. Cline using a pillow. However, there are material differences in the facts relied upon by the Crown and defence which require that I make findings of fact in relation to that offence.

Background

[4] Kevin Dunn and Whitney Cline were boyfriend and girlfriend on August 18, 2015. Ms. Cline, her five children and her niece, Aurora, were living with Mr. Dunn in his home on Overly St. in Sarnia.

[5] In June 2015, Aurora was born prematurely. Her mother, Ms. Cline’s sister, was an addict. As a result, London and Middlesex CAS arranged an informal kinship placement of Aurora with her aunt, Whitney Cline, through Sarnia-Lambton CAS.

[6] By August 18, 2015, Aurora weighed only 8-9 lbs. Like all babies, Aurora was completely dependent on her caregivers including Mr. Dunn when he was looking after her.

[7] The charges before me arise from three incidents that took place in the early morning hours of August 18, 2015. I will refer to them as:

1. the bassinette incident;

2. the baby throwing incident; and

3. the pillow incident.

The only persons present for each incident were the defendant, Ms. Cline and Aurora.

[8] In this decision, I will first set out some of the events on August 17, 2015 which are the backdrop to the three incidents. I will then deal with the facts and evidence for each incident. As I do that, I will also address the charge(s) that pertain to that incident and provide my determination of guilt or not.

[9] I want to be clear that although presented in this fashion, in making my findings of fact, in assessing the credibility and reliability of the witnesses and in determining whether Mr. Dunn is guilty of the charges before me, I have done so on the totality of the evidence.

Events of August 17, 2015

[10] On August 17, 2015, Mr. Dunn helped his sister move. When he came home that afternoon, he found Ms. Cline and her friend, Becky Allaire, sitting on the back deck drinking alcohol while the children played in the pool. Mr. Dunn went to pick up Ms. Cline’s son from daycare and Mr. Dunn fixed hotdogs and hamburgers for everyone for dinner. He had a couple of drinks as well.

[11] As the evening wore on, Ms. Cline told Mr. Dunn that she wanted to go over to Ms. Allaire’s home after the children were in bed. Ms. Allaire lived nearby.

[12] Around 9 p.m., Ms. Cline put the children to bed for the night and left to go to Ms. Allaire’s home. She left Aurora in Mr. Dunn’s care. As she left, she told him that looking after the baby would be a “piece of cake”. He called her later that evening when Aurora was crying and left her a voice message to let her know that it was not “a piece of cake”.

[13] Despite a kidney condition, Ms. Cline continued to drink alcohol while at Ms. Allaire’s. She and Ms. Allaire also did some cocaine, something Ms. Cline had been doing more frequently that summer. Mr. Dunn was not happy about her drug use. He believed that whenever she and Ms. Allaire got together by themselves, they were doing cocaine.

[14] It is fair to say that as the evening wore on, Mr. Dunn grew increasingly frustrated with the situation and Ms. Cline. He was looking after her children and her infant niece while she was elsewhere drinking and doing drugs with her friend.

[15] For his part, Mr. Dunn also continued to drink. I find that he consumed 6-8 beers between the time he came home that afternoon and when he went to bed.

[16] I turn now to the first of the three incidents: the bassinette incident.

Bassinette Incident

[17] Both Mr. Dunn and Ms. Cline testified that Ms. Cline came home shortly after midnight. When she came into the bedroom she shared with Mr. Dunn, he told her that she was not sleeping in the bedroom. He told her to sleep in the living room on the couch and to take Aurora with her. Aurora was sleeping in a bassinette beside the bed.

[18] Rather than argue, Ms. Cline simply took her pillow and blankets from her side of the bed and headed to the living room where she lay on the couch. She did not, however, take the bassinette with Aurora.

[19] Shortly after she went into the living room, Mr. Dunn realized that the baby and bassinette were still in the bedroom. He was upset with Ms. Cline. He wanted her to have every bit as rough a night as he had had looking after Aurora. More to the point, he just wanted Ms. Cline to have a difficult night.

[20] So, he got out of bed and picked up the bassinette with Aurora bundled in it. He walked from his bedroom down the hallway and into the living room where he found Ms. Cline lying on the couch with her back to him. She was facing the back of the couch. He was none too quiet as he walked to the living room.

[21] Mr. Dunn testified that he brought the bassinette to the couch. Once there, he lowered it until it was about two inches off the hardwood floor. He then dropped the bassinette with Aurora. It had the desired effect: it startled Aurora awake and she cried. Ms. Cline had to comfort her.

[22] Ms. Cline told various versions of what happened. When she was interviewed by police under oath on August 18, 2015, she indicated that he first came into the living room after he went outside for a smoke. He did not have the baby or bassinette. When he came in, she was on the couch. He began yelling at her – telling her she was fat and ugly, she had so many kids no one would want her and that they were done- she should leave the house now. She said that she tried to calm him down by telling him “let’s not fight, let’s do this a civilized way”. She told him that she and children would leave in the morning.

[23] According to her statement, he then went outside for another smoke. When he returned she was lying on the couch with her back to the room. She was facing the back of the couch. He had the bassinette. She heard him coming in. She looked over her shoulder. She saw him forcefully slam the bassinette to the floor. Despite facing the opposite direction and looking over her shoulder, she was adamant that he did not drop the bassinette, that she saw him slam it to the floor. She also indicated that he slammed the bassinette so hard that “the baby bounced and she started screaming”.

[24] At trial, Ms. Cline initially indicated when examined in-chief by Crown counsel that:

a. She could not describe how Mr. Dunn put down the bassinette on the floor. She was not watching;

b. She did not notice anything about how he put the bassinette down that drew her attention;

c. The baby probably woke up, she could not recall;

d. She was not sure what caused the baby to wake up and when.

[25] Ms. Cline indicated that she read her statement to police before testifying, but that only refreshed her memory as to what she told police; it did not refresh her memory as to what actually happened. She testified that she did not recall things happening that way and she was not truthful when she spoke with Sgt. Murphy at the Sarnia police station on August 18, 2015.

[26] Because Ms. Cline recanted her audio-videotaped interview with Sgt. Murphy, she was cross-examined by Crown counsel pursuant to s. 9(2) of the Canada Evidence Act. She stuck to her in-chief trial testimony. She did this for each of the incidents. As a result, Crown counsel applied to admit her statement to police for the truth of its contents. That request was granted although that application dealt only with admissibility – threshold reliability – not ultimate reliability.

[27] Ms. Cline was cross-examined by defence counsel. She agreed with almost every suggestion put to her. She agreed that she did not see Mr. Dunn slam the bassinette onto the floor. She agreed that he may well have dropped it a couple of inches, enough to startle Aurora awake and cause her to cry.

[28] Crown counsel urges me to accept and prefer the evidence given by Ms. Cline to police during the interview for essentially the reasons set out in my ruling admitting that evidence for its truth. She submits that the reasons given by Ms. Cline at trial for recanting lack any credibility or reliability. Her docile acceptance of every suggestion made by defence counsel is a blatant attempt to salvage her relationship with Mr. Dunn.

[29] Defence counsel urges me to find that:

a. Mr. Dunn’s evidence is credible and reliable and should be accepted for what happened;

b. Alternatively, his evidence raises a reasonable doubt as to what happened;

c. The evidence of Ms. Cline at trial corroborates the salient parts of Mr. Dunn’s version and should be accepted;

d. Ms. Cline’s statement to police should not be preferred and relied upon given her admissions that she lied to police, her failure to disclose to police that she had been using cocaine that night and her concern that police would involve CAS vis-a-vis her children;

e. At a minimum, Ms. Cline’s evidence is so contradictory that no weight or reliance should be placed on it. There is no corroborating evidence – only her word which she recanted.

Analysis

[30] As a trial judge, I can accept all, part or none of any witness’ evidence. As trier of fact, I must assess the credibility and reliability of each witness’ evidence in the context of the whole of the evidence.

[31] There are no other witnesses to what happened in the early morning hours of August 18, 2015 but Mr. Dunn and Ms. Cline. Depending which version of her evidence is advanced, they tell very different stories.

[32] The Supreme Court of Canada has set out the analytical framework that must be employed in cases like this where it is essentially a “he said, she said” scenario. In W. D. the court indicated that I, as the trier of fact, must:

a. First, ask whether I believe the accused's version of events. If I do, I must determine whether the essential elements of the offence are proven beyond a reasonable doubt. Usually, the evidence of the accused is exculpatory and, in that case, the court must acquit.

b. If I do not believe the accused’s version of events but it raises a reasonable doubt, then again, I must acquit.

c. If I do not believe his evidence and do not find that it raises a reasonable doubt, I must ask myself whether, on the whole of the evidence that I do find credible and reliable, the Crown has proven the essential elements of the offence beyond a reasonable doubt. If not, I must acquit.

[33] Dealing with the bassinette incident only, I accept Mr. Dunn’s evidence as truthful and reliable. He was candid in his admission that he dropped the bassinette onto the hardwood floor; that he did so to wake the baby and to interrupt Ms. Cline’s sleep. He was upset with her and wanted her to have a miserable night of caring for Aurora.

[34] I find Ms. Cline’s evidence to be unreliable and decline to attach any weight to her statement to police on the bassinette incident. I note first that she had been drinking and doing cocaine shortly before the incident. Second, she was lying on the couch facing away from Mr. Dunn and could not have seen the baby bounce as she described to police from her position on the couch. She admitted as much in cross-examination by defence counsel. Her story to police on this incident strikes me as an exaggeration. I will have more to say regarding Ms. Cline’s credibility and reliability further in this decision.

[35] I turn now to whether Mr. Dunn’s description of this incident amounts to an assault on Aurora. I find that it does.

[36] First, Aurora was bundled in her blanket in the bassinette. She was asleep. Mr. Dunn carried the bassinette to the living room with Aurora in the bassinette. He dropped the bassinette, albeit from two inches above the floor. By dropping the bassinette with her in it, he caused the direct application of force to Aurora – the bassinette hitting the floor.

[37] That application of force was intentional by his own admission. This was no accident in the dark. He meant to drop the bassinette; to have the force of the bassinette hitting the floor wake and startle Aurora from her sleep; to make her cry so that Ms. Cline would have to care for her.

[38] Aurora is an infant. She cannot consent to this application of force. She is completely vulnerable and at the mercy of those who are her caregivers. Mr. Dunn’s conduct is entirely inconsistent with caregiving. To the extent Aurora could impliedly consent to touching by Mr. Dunn, such consent is restricted to touching for caregiving purposes which this was not.

[39] I am satisfied beyond a reasonable doubt that each of the essential elements of the offence of assault by Mr. Dunn on Aurora on August 18, 2015 have been proven.

[40] Before I leave this incident, I note that Dr. Van Hooren, an expert in the assessment of paediatric trauma, testified that the injuries sustained by Aurora that were observed and assessed at Children’s Hospital on August 18, 2015 and in the days following could not have been caused by the dropping of the bassinette described by Mr. Dunn or even by it being slammed with force onto the floor as described by Ms. Cline to police.

Alleged Baby Throwing Incident

[41] Once again, only Ms. Cline and Mr. Dunn testified as to what happened, and Ms. Cline’s testimony at trial differs dramatically from what she told police on August 18, 2015.

[42] When Ms. Cline woke on the morning of August 18, she saw her 13 year old daughter holding and caring for Aurora in the living room. Both noticed a bit of bruising near Aurora’s eye. Ms. Cline also noticed a red dot in Aurora’s eye.

[43] She and Mr. Dunn then had words. She asked him what he’d done. For his part, he went out onto the deck wearing only his pajama pants. When she followed him onto the deck, she started to light a cigarette - her last. He took it from her and broke it. She was upset by this. She went inside and closed and locked the door.

[44] Mr. Dunn tried to get in and was unable to do so. She refused to unlock the door and let him in. He tried other doors to get in and was met with the same result. He banged on the doors and windows and yelled at her to let him in.

[45] Ms. Cline called Sarnia police on their regular line. This was not a 911 call. In that call, she mentioned that there was a domestic dispute going on but made no mention of any assault on Aurora or any injury to Aurora.

[46] Police were dispatched to the residence. By the time they arrived near to the home, Mr. Dunn was walking up the street. He was asked his name and was told they were responding to a call from his home. One of the officers asked him to get in the back of the car to go back to his home. He cooperated fully.

[47] Once at the home, Mr. Dunn remained sitting in the back of the car with the door open. Constable Oosterhof went to the front door where he spoke briefly to Ms. Cline. He could see a number of children inside. He suggested they speak in private in the backyard.

[48] Ms. Cline and another woman (Ms. Allaire) spoke with Constable Oosterhof in the backyard. In that conversation, Ms. Cline showed him a picture taken of Aurora that showed some bruising on the left side of her face. Ms. Cline told Constable Oosterhof that during their fighting in the early hours of that morning, Kevin Dunn had picked up Aurora and thrown her at Ms. Cline who was “sitting” on the couch. She thought perhaps the baby’s head had hit her elbow.

[49] Constable Oosterhof went inside where he saw the baby and bruising. He placed Mr. Dunn under arrest. He arranged for another officer to attend to take photos of the baby and bassinette. He also requested an ambulance and CAS was contacted.

[50] Aurora was taken to hospital in Sarnia. She was then transported to Children’s Hospital in London where she was seen by several doctors including Dr. Van Hooren.

[51] Dr. Van Hooren specializes in assessing injuries to children to determine whether the injuries are accidental or the result of neglect or abuse. A number of photographs taken by police show the bruising, scratches and other marks on Aurora.

[52] According to Dr. Van Hooren, Aurora suffered intra-cranial bleeding on the left side of her brain and in the divide between the two hemispheres. These injuries were consistent with recent head trauma likely of non-accidental cause.

[53] Dr. Van Hooren was careful to delimit the scope of known science around bruising and broken bones, and what limitations existed on her ability to discern a specific cause of an injury, especially bruising.

[54] The assessment and testing on Aurora revealed that she had six previously broken ribs, likely caused by a crushing or squeezing action. These broken ribs were a few weeks old.

[55] With respect to the intracranial bleeding, Dr. Van Hooren explained that the more recent the bleed, the brighter the image. There was some older darker images on the right side, but the bright images taken showed recent bleeding on the left side and in the divide. This bleeding was consistent with the bruising and pulpy swelling observable on the left side of Aurora’s head. Aurora was tested and did not suffer from a bleeding disorder.

[56] Dr. Van Hooren agreed that she could not tell what had caused some of the bruising on Aurora’s legs, under her arms and under her chin. Even for the bruising to Aurora’s head, face and eye, Dr. Van Hooren could not say with certainty what caused the injuries. She could only opine as to whether certain kinds of force were consistent with that injury. For example, she ruled out the dropping of the bassinette as a cause of the head injuries suffered by Aurora.

[57] Aurora’s head injuries required that the fluid from the intracranial bleeding be drained. If not done, the pressure from the build of fluid could have caused seizures and even death.

[58] Mr. Dunn testified that when he went back inside from the deck, he found Ms. Cline sleeping on the couch and Aurora asleep in her bassinette beside the couch. This irritated him. So, he walked over to the bassinette and picked up Aurora. He then put her against Ms. Cline’s back on the couch. Ms. Cline was facing the rear of the couch and Aurora was between her back and the edge of the cushions.

[59] Mr. Dunn denies that he threw or slammed Aurora against Ms. Cline’s back as she was sleeping. He testified that Ms. Cline put her arm behind her to ensure Aurora did not fall off the couch, and turned around to pick her up. Aurora was not injured in any way by his actions.

[60] As mentioned, Ms. Cline told Constable Oosterhof that Mr. Dunn threw Aurora into her arms/lap as she was sitting on the couch. However, when interviewed by Sgt. Murphy later that same day, she indicated that:

a. She was lying on the couch sleeping. She was facing the back of the couch:

b. Kevin Dunn slammed Aurora into her back by her shoulder blade;

c. Aurora’s head may have struck her elbow;

d. Kevin Dunn was yelling at her afterward;

e. She reached behind her to keep Aurora from falling off the couch; and

f. Aurora was screaming and it took 10-15 minutes to get her to go back to sleep.

[61] At trial, Ms. Cline again recanted what she told police. When examined in-chief by Crown counsel, she testified that she only remembered laying on the couch and the baby was placed beside her. She was uncertain but Mr. Dunn may have said that it was her turn to watch the baby. On a scale of 1-10 from gentle to violent, she characterized the force with which the baby was placed against her back as a two (2). She testified that when she told police that Kevin Dunn slammed the baby into her body, it was “not true”.

[62] In cross-examination by defence counsel, Ms. Cline testified that she had no idea how Mr. Dunn placed the baby on the couch. She felt Aurora against her back and reached back to keep her from falling. Aurora cried but it was not a scream. It was a normal cry. She was able to settle her.

[63] Ms. Cline also testified at trial that:

a. She received almost $5,000 for a baby bonus adjustment in May or June, 2015;

b. She spent part of that money in July and August on cocaine;

c. Her use of cocaine was increasing over the summer and was up to 4x per week;

d. By August 18, she was an addict;

e. On August 16, 2015, she stayed out all night with Becky Allaire doing cocaine. She got home about 10 am. She had left the children and Aurora with Mr. Dunn;

f. When she told police that he had only looked after Aurora the one time on the evening of August 17- that was a lie. Mr. Dunn had cared for Aurora several times previously;

g. Kevin Dunn had expressed his concern about her drug use;

h. Mr. Dunn called her the night of August 16 to try to find her;

i. Ms. Cline admitted her drug use to him and told him that when she was with Ms. Allaire, she could not resist doing cocaine;

j. When she was using cocaine more frequently, it caused her to become paranoid and to exaggerate things;

k. If she was drinking alcohol and using cocaine, she would pass out and not wake even when the kids were jumping on the couch or bed beside her.

[64] Ms. Cline admitted in cross-examination that she wanted to make Mr. Dunn look as bad as possible in her statement to police so that they would discredit his assertion to police that she was using drugs. That is why she told them he was mentally unstable, that he was wasted on alcohol that night, that he had been increasingly verbally abusive to her and the children, and that he had thrown her daughter, Kaylyn down some stairs. She conceded that Kaylyn told her it was an accident, he did not push her down stairs. She left that out of her statement to police.

[65] According to Ms. Cline, she was afraid that if CAS learned of her drug use, they would apprehend her children. So, she lied. She painted Mr. Dunn as the bad guy. She lied about what happened that night.

[66] The Crown asks that I accept the statement given by Ms. Cline to police during her interview by Sgt. Murphy as true. Her account to Sgt. Murphy is consistent with the nature and extent of the head injuries found on examination. Dr. Van Hooren opined that the injuries on the left side of her head could have been caused by Aurora being slammed into Ms. Cline’s back, especially a hard surface like a shoulder blade. That would account for some but not all of the injuries observed.

[67] Both Mr. Dunn and Ms. Cline testified that they observed no bruising or injuries to Aurora before the morning of August 18. How then did a three month old defenceless baby suffer these serious injuries?

[68] Evidence was adduced that Ms. Cline’s four year old son may have tripped over the bassinette causing Aurora to spill out of the bassinette. He picked her up and put her back in the bassinette. However, that evidence, even if accepted, does not account for the serious injuries sustained. Dr. Van Hooren made clear that such an incident would not have caused the intracranial bleeding.

Analysis

[69] Again, the Crown asks that I accept Ms. Cline’s statement to police as the truth of what happened. It explains Aurora’s injuries or at least the more serious of them. It is consistent with Mr. Dunn’s admitted irritability that morning, and the statement was made while events were fresh in Ms. Cline’s mind. If this was determinable on a balance of probabilities, the Crown may be right; but it is not.

[70] Once again, the determination rests on conflicting testimony of what happened, and the testimony relied upon by the Crown is the statement of Ms. Cline to Sgt. Murphy. I note that that statement is materially different from what she told Constable Oosterhof to say nothing of her trial testimony.

[71] Dr. Van Hooren was very careful to clarify that she could not say what exactly caused the injuries to Aurora; rather, she could rule out certain scenarios and she could say that some of the injuries were “consistent” with Aurora being slammed against Ms. Cline’s back and shoulder blade. She could not be certain as to the exact timing of the insult to Aurora except that it was somewhat recent given the brightness reflected in the scan done.

[72] I am not satisfied beyond a reasonable doubt that Mr. Dunn threw or slammed Aurora against Ms. Cline. That should not be taken to mean that I accept his evidence on this point; rather, his evidence together with that of Ms. Cline at trial and the frailties in her evidence leaves me in doubt. Dr. Van Hooren’s evidence does not remedy the shortcomings in Ms. Cline’s evidence.

[73] There is a danger in cases where a child is injured to want to affix blame. But as I indicated at the outset, the presumption of innocence applies regardless of the alleged victim – in this case, a three month old baby.

[74] While I am certain that Aurora deserved better from her aunt and Mr. Dunn, I cannot say with the requisite certainty that Mr. Dunn assaulted Aurora by throwing or slamming her against Ms. Cline and thereby caused her injuries.

Pillow Incident

[75] Mr. Dunn left the room after the incident where Aurora was placed on the couch against Ms. Cline’s back. He went outside onto the back deck for a cigarette. He remained frustrated with Ms. Cline. When he came back into the house, all was quiet. Ms. Cline had soothed Aurora who had gone back to sleep. Ms. Cline was asleep on the couch.

[76] Both Mr. Dunn and Ms. Cline testified that as she slept, he climbed onto the couch and was straddling her. He took a pillow and put it over her face. Again, there are no other witnesses.

[77] According to Mr. Dunn, he simply put the pillow over part of her face. He told her that she was going to die like her sister; that doing drugs would kill her. He then got up and left the room.

[78] Ms. Cline told police in her sworn statement that she woke to Mr. Dunn straddling her and pressing the pillow hard over her face. Her face was squished. She could still breathe and she remained quiet. He lifted the pillow a number of times and pushed it back over her face. When he lifted the pillow, he told her she needed to die; that he hated her and her children; that she needed to get out; and they were done as a couple. He was yelling at her. The last time he pressed down with the pillow, she felt like she could not breathe. She made a little noise and he stopped. The incident lasted four-five minutes.

[79] Once again, Ms. Cline recanted what she told police about this incident when initially examined in-chief by Crown counsel. She said that she lied to police. It did not last that long. He did not threaten her.

[80] When initially examined by Crown counsel, Ms. Cline testified that Mr. Dunn did not smother her for 3-4 minutes. Rather, he tossed a pillow on her face and yelled something at her. They were bickering at one another. She could not recall the exact words he used but it was something about her sister – do you want to end up like your sister? She could not accurately gauge the force of the pillow toss. She said “it was light” and did not hurt her.

[81] Ms. Cline was confronted by Crown counsel with the statement made to Sgt. Murphy under oath at the police station on August 18, 2015. She repeatedly testified that she lied to police during that interview.

[82] By contrast, when cross-examined by defence counsel, she accepted the facts put to her that mirrored Mr. Dunn’s evidence. She conceded her use of cocaine that night and that her use was steadily increasing that summer. She was angry with Mr. Dunn for telling police that she had been drinking and using drugs.

[83] As indicated, Mr. Dunn pleaded guilty to the assault of Ms. Cline with the pillow on the basis of the admissions made by Ms. Cline in cross-examination by defence counsel. He then testified and reiterated essentially the same version of the incident.

Analysis

[84] There is no doubt that on either his or her evidence, an assault occurred. The essential issue is what happened? What facts underlie and establish the essential elements of the offence(s)?

[85] On the whole of the evidence, I find as follows:

a. Mr. Dunn was upset with Ms. Cline;

b. He came into the living room to find both Ms. Cline and Aurora sleeping. That irritated him;

c. He climbed atop Ms. Cline while she was sleeping;

d. He put a pillow on her face;

e. The pillow was on her face briefly;

f. He then lifted the pillow and spoke to her;

g. He then got off of her and left the room again.

[86] I do not accept Ms. Cline’s statement to police as an accurate portrayal of what happened. I note that according to her in that statement, he was yelling at her when he lifted the pillow. Aurora was right beside the couch in the bassinette. The children were in the house in their bedrooms. No one stirred while he yelled at her?

[87] I note that Ms. Cline also testified at trial that she met with Constable Oosterhof outside of the police station before she gave her statement. She stated that he gave her advice about how to give her statement. He denied any such meeting. I believe him. This is another example of Ms. Cline trying to explain her statement to police.

[88] I find Ms. Cline to be a very poor witness. She was at times defensive and argumentative when being examined and cross-examined by Crown counsel. She seemed at pains to agree with every suggestion by defence counsel. I am at a loss to discern whether her statement to police is full of lies as she now says, or her testimony at trial is.

[89] I do not know what words were spoken to Ms. Cline by Mr. Dunn. Were they benign admonishments about her drug use that show his concern? Were they “you need to die”? I don’t know or more to the point, I have a reasonable doubt that he uttered any threat.

[90] In summary, I am satisfied beyond a reasonable doubt that Mr. Dunn intentionally applied force by sitting on Ms. Cline and putting a pillow over her face briefly. This was done without her consent. She suffered no physical injuries as a result.

[91] To be clear, I do not find Mr. Dunn guilty as charged in count 3 as I have a reasonable doubt that the pillow was used as a weapon. I find him guilty of the included offence of simple assault.

[92] As indicated, the uttering threats charge has not been proven beyond a reasonable doubt.

Conclusion

[93] I conclude as follows:

• Mr. Dunn assaulted Aurora on August 18, 2015 when he deliberately dropped the bassinette – this was simple assault;

• Mr. Dunn assaulted Ms. Cline on August 18, 2015 when he straddled her and put a pillow on her face briefly – again simple assault; and

• The other charges have not been proven beyond a reasonable doubt.

“Original signed by Raikes, J.”

Justice R. Raikes

Released: March 8, 2018

COURT FILE NO.: 1919/17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Kevin Paul Dunn

REASONS FOR JUDGMENT

Raikes, J.

SCJ

Released: March 8, 2018