COURT FILE NO.: 86/17

DATE: 20180406

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

B.F.

L. Casey, for the Crown

J. Zegers, for the Defendant

HEARD: February 12, 13, 14 15 and 16, 2018

Grace j. (orally)

A. The Charges

[1] A three plus year relationship ended on November 19, 2016 when M.P. told members of the London Police Service (“LPS”) that she had been threatened and assaulted with a cigarette by her common law partner B.F..

[2] M.P.’s allegations did not end there. Other incidents were described. B.F. faces ten charges covering a time frame starting on January 1, 2014 and ending on November 18, 2016: six counts of assault, one count each of sexual assault, assault causing bodily harm, assault using a weapon and uttering a threat to cause bodily harm.

B. The Background

[3] Some of the background is not contentious. The parties met in the latter part of the summer of 2013. They became involved romantically almost immediately.

[4] In October, 2013, M.P. ended a long-term relationship and moved into a townhouse B.F. occupied on H[…] Street in London, Ontario.

[5] A number of the incidents that underlie the charges are alleged to have occurred there.

[6] In or about May, 2015, M.P. moved out. After a brief hiatus, they began communicating again and soon reconciled. In September, 2015, B.F. and M.P. moved into a home M.P. purchased on E[…] Street.

[7] As mentioned, the relationship continued until November 19, 2016. On that day and for reasons I will explain, M.P. was interviewed by members of the LPS and alleged that she had been the subject of abuse at the hands of the defendant.

[8] B.F. was arrested several days later. He has been in custody ever since.

[9] Throughout their relationship M.P. was employed by Ontario Lottery and Gaming Corporation (“OLG”) at the O[…] in London. M.P. continues to work at that location although under different ownership since May, 2017.

C. The Context

[10] M.P. said the first few months with B.F. were the best she had experienced. She told the court that things slowly changed. Negative comments were made about the complainant’s friends and family. As a result, M.P. spent less time with them. Her non-work activities were restricted. She was required to call B.F. during breaks at work. There was a continuous stream of perceived wrongs. The defendant became verbally and later physically abusive.

[11] B.F. said there was a connection between the parties the first time they met. They began cohabiting about two weeks later. He denied possessing the qualities the complainant described. He was not insulting or controlling. While M.P. did not spend much time with her family, his words or actions were not the cause. The parties did not argue as had been alleged.

[12] With that background and context I turn to the incidents M.P. described during her testimony. They covered a time period of a little less than three years. My summary of the evidence will be by count in the indictment rather than in the precise order in which the events are alleged to have occurred

D. The Counts and Alleged Incidents – the Evidence

i. Count one – Assault – Criminal Code, s. 266

[13] M.P. described an incident in the H[…] Street townhouse. Early 2014 was the timeframe mentioned at trial. Sometime approaching the fall of that year had been her estimate during the April 26, 2017 preliminary hearing.

[14] M.P. said the parties had been arguing. She was semi-lying on a sectional couch in the living room when B.F. grabbed and twisted her legs. She said he did so quickly and then let go. Her hands may have been bent back too. She said that the pain made her cry and that her left leg ached for a couple of days afterward.

[15] B.F. said that no such event ever occurred although he remembered M.P. telling him of leg and ear problems when they first met.

ii. Count two – Assault – Criminal Code, s. 266

[16] An evening of dancing with B.F. during the spring or fall of 2014 at what was described as a “Caribbean bar” was the prelude to the second incident the complainant described. M.P. said that the patrons included a couple disliked by the defendant. Sue Allen was identified as being one of those persons.

[17] M.P. said that she went to the washroom. After exiting the stall she encountered Sue Allen. M.P. said that she complimented the other woman’s hairstyle.

[18] After making the comment, M.P. noticed that B.F. was leaning on the wall just outside the door. She said that his face was “very angry”. He admonished M.P. for speaking to Sue Allen. He told M.P. that she had betrayed him and told her they were leaving the bar immediately. She described being ushered out of the premises.

[19] Things became physical when the couple returned to the H[…] Street townhouse. M.P. said the defendant slapped each side of her face repeatedly with an open hand. She said that her nose and cheeks hurt and felt “very puffy” after the attack.

[20] During his testimony B.F. said that he remembered going to an establishment called “Club Large” late on a Saturday night in the latter part of 2013. Nothing of the kind M.P. described occurred there or at home afterward. No “enemies” were encountered. No conversation was overheard or debated. He did not stand outside the woman’s washroom.

[21] B.F. said the couple left the nightclub around closing time. They waited for about forty-five minutes for a cab, went home, ate, had sex, slept and then spent the following day together before M.P. went to work Sunday evening.

[22] J.M. was M.P.’s immediate supervisor at O[…] during 2014, 2015 and 2016. She testified that in March, 2014 M.P. returned to work from a week long absence with a significantly swollen eye and bruises down her cheek bone.

[23] Ms. J.M. said that in July, 2014 M.P. arrived at O[…] with bruises running from ear to chin and along her jaw line.

[24] B.F. was asked about those observations during cross-examination. He said that he had no recollection of any injuries during that time frame. He acknowledged that when off work he and M.P. spent most of their time together.

[25] Ms. J.M. also described seeing B.F. at the c[…] in August, 2014 while M.P. was working at one of the cashier’s windows. She remembered the parties speaking briefly. While unable to overhear the conversation, Ms. J.M. said the defendant appeared angry and intimidating to her but he moved on when the complainant gestured for him to leave. An investigation followed and a trespass notice was later issued to B.F. by the establishment.

[26] B.F. remembered things very differently. He said his only attendance at M.P.’s window was in 2015. He said the complainant had called to tell him a prize was being offered and had invited him to attend. After his arrival, B.F. spoke briefly to M.P. before moving to another window to obtain some cash.

[27] He acknowledged receiving a trespass notice. He said that followed the parties’ separation in 2015. He did not know why it was issued.

iii. Count three – Assault – Criminal Code, s. 266

[28] The third incident was alleged to have occurred in January or February, 2015, a week or so after the couple returned from a three week vacation in B.F.’s homeland, Jamaica. M.P. said the parties argued over money. The defendant wanted to send $300 to a family member still living on the island. M.P. wanted to use the money to pay a hydro bill and to buy groceries instead.

[29] The complainant said that she was lying on the couch in the living room of the H[…] Street residence. She had just taken a sip of coffee when the defendant lunged for her. He gripped her neck with both hands and squeezed forcefully. She said it was difficult to breath and that her throat hurt for some time afterward. There may have been bruising.

[30] B.F. said the incident did not happen. He testified that he sent $50 to $100 to relatives in Jamaica regularly but never the amount M.P. described. Further, he used his own money except on one occasion when Money Mart would not honour his request because of an alleged outstanding debt. On that occasion, M.P. temporarily covered the $100 transfer.

iv. Count four – Assault – Criminal Code, s. 266

[31] M.P. thought this incident occurred prior to the trip to Jamaica. She remembered an argument but not its cause. She was in the kitchen of the townhouse on H[…] Street. B.F. placed both hands around her neck, bent M.P. backward over the counter and choked her. The complainant remembered looking into B.F.’s eyes. She begged him to stop and told him that she loved him. She said that her throat was sore for a long time afterward.

[32] B.F. denied that the incident occurred. Nor could he recall any event that could have been the basis for what M.P. described.

v. Count five – Sexual Assault – Criminal Code, s. 271

[33] M.P. told the court that she met and got to know a customer while working as a cashier at the c[…]. He was from out of town. Her relationship with B.F. was particularly unhappy at the time. In fact, things had reached the point where she wanted to leave him.

[34] The complainant told the court that the customer picked her up one evening after work. They went to a motel, had sex and then ate pizza. She said she realized she had made a mistake almost immediately.

[35] The complainant stepped outside to smoke a cigarette. She called B.F. He was crying. She then learned that B.F. had overheard some of what had gone on because the parties’ cell phones had somehow been connected. She proclaimed her love for him and apologized repeatedly. He said the fault was his and assured the complainant they would work through the incident. The defendant urged M.P. to come home.

[36] Soon afterward, the customer gave her a ride to a plaza at the corner of H[…] Avenue and H[…] Street. B.F. was waiting for her. They walked back to the H[…] Street townhouse they shared. She said that B.F. seemed sympathetic. He promised to treat her better.

[37] Once home, she accompanied B.F. upstairs. His mood was different. It was darker. She remembered the defendant directing her into the shower. He turned the water on for her. She was still dressed when she climbed in. After showering she changed into a nightgown. The couple then went to the basement. She said the defendant pushed her onto the couch before returning upstairs and turning off the lights using the switch at the top of the stairs.

[38] B.F. came back downstairs a little while later. The lights remained off. After telling her that he would teach her a lesson and give her what she wanted, the defendant turned M.P. onto her stomach and had very rough non-consensual sexual intercourse with her.

[39] M.P. said nothing. The intercourse was painful. She felt like she had been cut. Breathing was difficult. She waited for it to be over. When B.F. had finished, he went upstairs a final time. She remained in the basement for a few minutes before getting ready for bed. M.P. told the court that the aftermath included several days of vaginal bleeding. She said that B.F. also took her cell phone away and directed her to call him on her breaks.

[40] The defendant provided another account. He said M.P. was packing a small bag one morning before work. The parties had argued the night before. He asked M.P. whether she was going on a date. In response, she told him that she was simply reorganizing the contents of her purse.

[41] He remembered receiving a call late that afternoon. M.P. said that he did not need to pick her up from work because her mother was doing so. B.F. said that he went to a friend’s residence and started calling his partner’s cell phone when she had not surfaced by 8 p.m. or so. After several attempts, someone answered. He said that he listened for a couple of minutes before hanging up. He could hear M.P. having sex with another man.

[42] A few minutes later he called back. The complainant answered. He was upset and told her what he had overheard. She called him a liar. He told the complainant to check her phone and hung up again. Subsequent attempts to reach M.P. failed.

[43] He said that he did not see M.P. until several days later. There was a knock on the door. The complainant was there along with several vehicles and members of her family. The police were there too. That was in May, 2015 – the day M.P. moved out of the H[…] Street premises.

[44] B.F. disputed M.P.’s description of the basement incident in its entirety. He said a couch was not even located in the basement.

[45] The separation was short-lived. A few days later, he received a text from the complainant consisting of a smiley face emoji. He called M.P. immediately. She apologized for having been with another man. Cracks in the relationship were repaired over the following months.

vi. Count six – Assault – Criminal Code, s. 266

[46] This alleged assault is said to have occurred on October 18, 2014. M.P. said that she communicated with her former spouse M. from time to time to let him know that she was okay.

[47] At some point B.F. checked her phone. He saw a number he did not recognize, dialled it and then confronted the complainant while M. was on the line.

[48] M.P. said that she was struck during the argument that followed. She said that the blow caused a goose egg to emerge on her forehead above her left eye. She heard someone ask whether she was alright.

[49] About an hour later there was a knock at the door. She remembered B.F. looking through the peep hole and seeing police officers outside. He asked her to pretend that no one was home and then added “please mama, save me”. M.P. said that just before B.F. opened the door she ran upstairs, grabbed a towel and wrapped it around her head to conceal the lump above her eye. She wanted it to appear as though she had just gotten out of the shower.

[50] M.P. said she did not tell the officers what had happened. She talked about the couple being harassed on Facebook and in other ways instead. She said she did that because she always put B.F.’s well-being ahead of her own.

[51] The defendant agreed that members of the LPS had attended the townhouse on H[…] Street but offered a very different version of what transpired beforehand. He said that the parties were on separate floors. M.P. was upstairs. He was on the main level. She shouted out asking him to join her in the shower. He shouted back and told M.P. that he would come upstairs after she had finished her “lady things”. The conversation continued from time to time from afar and at volume. A little while later, he heard a knock. He alleged that M.P. called down. She said her former spouse was at the door and told B.F. not to answer it.

[52] However, he opened the door because two police officers were there. He remembered speaking to the male officer in the front yard. B.F. said that he did not access M.P.’s cell phone. Indeed, he said that it was locked and that he could not have reviewed its contents even if he wanted to.

[53] Constable Patti Costa testified. She was one of the two police officers who attended that day. Constable Costa then had six years of experience. She said that M.P.’s former boyfriend M. had called the police. Suspected domestic violence was the reason she was dispatched to the H[…] Street townhouse with her partner.

[54] Constable Costa recorded her observations in her duty book. She spoke to M.P. Her notes indicated that M.P. was wearing a small bath towel. The officer could not recall what part of her body it was covering. The witness confirmed that M.P. seemed in good spirits. She was cooperative and repeatedly denied that anything was wrong.

[55] In fact, the complainant described herself as a loud Italian. The parties had yelled at each other earlier but any tension had eased. In cross-examination Constable Costa agreed that she was trained to look for signs of domestic violence and that none were observed. Since there was no cause for concern, the officers left the premises. No charges were contemplated or laid.

vii. Count seven – Assault – Criminal Code, s. 266

[56] The scene for this alleged assault was the H[…] Street townhouse. B.F. had remained there following the parties’ separation in May, 2015. M.P. had initially gone to live with her sister.

[57] The complainant said the relationship was mending. B.F. had promised to address anger management issues. She had visited the defendant. M.P. told the court she had found a woman’s ring in the bedroom after having consensual sex with B.F. It was not hers. She asked the defendant about the item. Dissatisfied with his response, she told him that she was going to return to her sister’s house. M.P. said that made the defendant mad and he responded by slapping her and then “smacking” her head into a kitchen wall. She said that she suffered little cuts and bruises around her right eye.

[58] When asked about the incident by his own lawyer, B.F. said that nothing of the kind described by the complainant occurred. He had never heard that a ring belonging to another woman had been found. In fact, no other woman had ever visited him at the H[…] Street townhouse. He emphasized that M.P. always retained a key to the unit even during their period of separation.

viii. Count eight – Assault Causing Bodily Harm – Criminal Code, s. 267(b)

[59] This was the first of two incidents alleged to have occurred inside the E[…] residence. M.P. said that the parties had enjoyed several wonderful months there. All of that changed in February, 2016 when she received a Facebook message alleging that B.F. had impregnated another woman living in an adjacent complex.

[60] The complainant said that she approached the defendant who was watching soccer on the couch in the basement of the unit. She read the message to him. An argument ensued. She described the parties’ positioning. M.P. was seated on the couch. B.F. was standing a few feet away. She said the defendant was mad she was communicating with someone on Facebook.

[61] She maintained that he threw an open beer bottle in her direction. It landed on the floor. Beer spilled all over her. At some point, B.F. spat in her face. She was pulled from the couch. Her left elbow and head struck the floor.

[62] The parties and dispute then moved to the main level. M.P. alleged that the defendant struck her on the left side of her face. She fell back into the wall. Her nose was bleeding profusely. She said that B.F. calmed after administering the blow and seeing its effect. He tried to help her stop the bleeding and encouraged her to go to the hospital. She said that she was too embarrassed to do so.

[63] There were other effects too. Both eyes were blackened. Her face and eyes swelled. She suffered a cut across the upper part of her nose. Her sight and hearing were affected. A “shhhh” sound in her left ear has endured. Several photographs were shown to M.P. She said that she took them at various times within a week or two of the incident. M.P. said that she missed work for some time thereafter. She misled her employer about the reason. She blamed pink eye for her absence. She said she visited a walk-in clinic about three weeks later.

[64] Records of visits to the Highbury Medical Clinic on February 11, 13, 17 and 24, 2016 were admitted on consent. The complainant was seen by Dr. Paulum Patel on each occasion. On the first visit, Dr. Patel noted “raccoon face bruising”. He prescribed lavender and chamomile oils.

[65] The clinical notes of February 17, 2016 recorded improvement in M.P.’s condition. However, residual issues such as a swollen left eye were noted on the final attendance. X-rays were ordered. The bruising and swelling eventually healed.

[66] B.F. agreed that the photographs taken by the complainant accurately recorded her condition on the dates taken. However, he denied having anything to do with her injuries.

[67] The defendant said that he returned home from a night shift early one morning. M.P. was not there. He called and reached her at a walk-in clinic. She joined him at the E[…] residence at around 11 a.m. Her face was swollen and eyes blackened. She said that she had been in a physical confrontation while at an establishment called the Roxbury. Indeed, the clinical note completed by the Highbury Medical Clinic on February 11, 2016 indicated that the patient “went to a bar and got punched in the nose”.

[68] During cross-examination, M.P. denied B.F.’s then anticipated version although she acknowledged misleading Dr. Patel when asked to explain the cause of her injuries.

ix. Counts nine and ten – Assault Using a Weapon – Criminal Code, s. 267(a) and Uttering a Threat to Cause Bodily Harm – Criminal Code, s. 264.1(2)

[69] M.P. said that she was speaking to B.F. on the phone during the early evening hours of November 18, 2016. She was at work. B.F. was at home. M.P. said she interrupted the conversation to say goodnight to a male employee as he left the c[…] following completion of his shift. She said that angered the defendant. He told her that she had disrespected him.

[70] The complainant alleged that B.F. berated her for hours when she got home that evening. She said that she tried to stay quiet and out of his way. However, things got physical at about 3 or 4 a.m. on the 19th when the defendant pushed her back onto the bed and held a lit cigarette near her eye. “Eye for an eye” was the phrase she remembered. She told the court that she was unhurt aside from a bruise on her chest from where B.F. had pushed her onto the bed.

[71] M.P. said she reported for her 7 a.m. shift on the 19th. She said she called B.F. soon after her arrival and was told that things would be better and that the parties would have a good life. Soon afterward she spoke to her supervisor and asked to be reassigned to back room rather than front-line cashier duties. As a result of that conversation the LPS was called. The complainant said that she turned her cell phone over to a member of the c[…]’s security to make sure she did not have any further contact with B.F. The complainant was interviewed by Constable Hartery that day.

[72] The defendant did not dispute the fact that an issue arose on November 18, 2016. However, his description was significantly different.

[73] B.F. said that a letter from Immigration Canada was waiting for him when he arrived home from work. Unable to read it on his own, he awaited M.P.’s return. At about 7:30 or 8 p.m. he learned that the authorities had not received required information by the due date.

[74] The complainant, he said, was responsible for the situation and he agreed he was angry with her even after learning that there would be no adverse consequences so long as the deficiency was corrected by November 28, 2016.

[75] B.F. said that he called the complainant names and uttered Jamaican obscenities at her. Aside from visiting a neighbour for about forty-five minutes, he otherwise reacted by sitting on the living room couch for the evening. He refused to share a meal with the complainant. He declined her invitation to go upstairs to the bedroom.

[76] Eventually he fell asleep on one part of the couch while M.P. slept on the other. He said the parties remained there until morning. He denied ever being in the bedroom upstairs that night. In fact, he said he did not even go to the upper floor to use the only bathroom the residence contained. Instead, he relieved himself in the laundry sink located in the basement. Furthermore, the defendant told the court that he did not have a cigarette in his possession. He said he did not smoke tobacco.

[77] The defendant testified that the relationship had been in decline even before this unpleasant evening. He said he told M.P. before she left for work that he would be gone when she returned. He thought that he left the unit at about 8 or 8:30 a.m. on November 19, 2016.

[78] Ms. J.M. testified briefly about her observations that day. She said that M.P. appeared to be visibly upset when she arrived at work. She answered the telephone. She believed that B.F. was on the line. He asked for M.P. and swore at her when Ms. J.M. would not disclose whether M.P. was in the c[…] or not. B.F. denied that any such conversation took place.

[79] Constable Hartery of the LPS testified. He visited the E[…] residence after interviewing M.P. He said he reviewed a portion of the surveillance captured by the camera mounted in the living room at about 3 p.m. on November 19, 2016. He noticed that B.F. left the premises at about 8:45 a.m. that morning.[^1] He had not returned.

E. The Applicable Principles

i. The Presumption of Innocence and Reasonable Doubt

[80] I turn to the applicable legal principles. Innocence is presumed. The accused does not have to prove a thing. Nor was he obligated to provide an explanation. Nonetheless and as noted, the defendant testified.

[81] Throughout the proceeding the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. That standard applies to every element of each charge. Certainty is not required. However, far more than probable guilt is necessary.

[82] The analysis is to be undertaken dispassionately, using reason and good common sense. Sympathy has no role to play.

[83] The evidence introduced by the Crown on the one hand and by the defence on the other are not part of a credibility contest. A judge may believe and accept as reliable all, some or none of the testimony of each witness.

[84] The court must consider, examine, assess and weigh all of the evidence. If the court is left with a reasonable doubt concerning guilt, the accused is entitled to its benefit. If the Crown’s case lends itself only to a conclusion the defendant is likely guilty, an acquittal must be entered: R. v. Starr, 2000 SCC 40. Nothing less than proof beyond a reasonable doubt will do.

[85] Uncomplimentary things were said about B.F. by the complainant and by Ms. J.M. that strayed beyond the counts in the indictment. However, B.F.’s general character is not in question. He is only on trial for the charges set forth in the indictment, nothing else.

ii. Assessing Credibility and Reliability

[86] As mentioned, B.F. testified during the trial. He had no obligation to do so. Each of the incidents M.P. described was put to him. The defendant denied each allegation whether of assault, assault causing bodily harm, sexual assault, assault using a weapon or uttering a threat to cause bodily harm. Because B.F. testified these principles apply.

[87] First, if I believe B.F.’s evidence that he did not commit the offence under consideration, I must find him not guilty.

[88] Second, even if I do not believe B.F.’s evidence, if it leaves me with a reasonable doubt about his guilt or about an essential element of the charge under consideration, I must find him not guilty. Concluding that an accused lacks credibility is not the equivalent of proof beyond a reasonable doubt: R. v. S. (J.H.), [2008] S.C.R. 152 at para. 13. The court’s task is not to choose between two competing versions of events: R. v. Simon, 2010 ONCA 754 at para. 83.

[89] Third, if, after a careful consideration of all the evidence, I am unable to decide whom to believe, I must find B.F. not guilty because the Crown will have failed to prove his guilt beyond a reasonable doubt.

[90] Fourth, even if B.F.’s evidence does not leave me with a reasonable doubt of his guilt or about an essential element of the count under consideration, I may convict him only if the rest of the evidence that I do accept proves he is guilty of that count beyond a reasonable doubt.[^2]

[91] The assessment of B.F.’s evidence is conducted in the same way and in accordance with the same principles that apply when assessing the evidence of any other witness. Credibility and reliability is not an all or nothing proposition. The court may believe some, none or all of the testimony of any witness, including the complainant and the defendant.

[92] Four other witnesses gave evidence at trial. I have already mentioned three of them: Constables Patti Costa, and Mark Hartery and civilian witness J.M..

[93] The final witness was Victor Poc. Mr. Poc is not a police officer but is also employed by the LPS. He was called by the defence and gave testimony concerning the results of the November 23, 2017 examination he conducted of a digital video recorder (“DVR”) that was provided to him by Constable Hartery. I will refer to his evidence in more detail shortly.

[94] The same level of scrutiny must be applied to all of the evidence introduced during the trial whether given by the complainant, the defendant or some other witness. I believe I have done so.

iii. Time of Reporting

[95] As mentioned, M.P. described events during a period that began sometime in 2014 and ended in the early morning hours of November 19, 2016. No complaint was made by M.P. to the authorities until the latter date.

[96] I am entitled to consider why the earlier incidents were not reported beforehand. Counsel for the defendant says the complainant could easily have left the relationship if abusive. The alleged incidents commenced within the first few months of the parties’ relationship. M.P. was mature and economically self-sufficient. Strength was a quality she said she possessed during her testimony. There were no children under their care.

[97] Had any of the allegations been true, the defence suggested, M.P. would have left the relationship and reported the abuse to the police.

[98] M.P. offered an explanation when that theory was put to her. She said that she had fallen completely in love and that the first few months were wonderful. The change was slow. The defendant’s life had not been an easy one. There was confusion and forgiveness. There were promises of change before and during their separation and after their reconciliation.

[99] There is no fixed rule on how people who are the victims of trauma like a sexual offence will behave. Some will complain immediately, some will delay, while still others will never disclose what happened. There are many possible reasons for non-disclosure including embarrassment, fear, guilt, a lack of understanding and knowledge – even forgiveness.

[100] On the other hand, complainants are not immune from misremembering, from exaggeration or untruthfulness.

[101] In assessing the credibility of an alleged victim, the timing of the complaint is simply one circumstance to consider. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant, any more than an immediate complaint necessarily demonstrates the truth of an allegation.

[102] An essential issue in this case is whether the events alleged to form the basis of the charges ever took place.

[103] It bears repeating that Crown counsel must prove beyond a reasonable doubt that the alleged event in fact occurred. It is not for B.F. to prove that an incident described by M.P. never happened. If the court has a reasonable doubt whether the event alleged ever took place, it must find the defendant not guilty of the charge under consideration.

F. Analysis and Decision

i. Sections 7 and 24(1) Charter Application

[104] At the opening of trial I was advised that the defence intended to bring an application to stay the ninth (assault with a weapon) and tenth (uttering threats) counts of the indictment on the basis of ss. 7 and 24(1) of the Charter. I accepted the explanation provided as to why the matter had not been raised earlier. It was also clear that the Crown was not caught by surprise and was prepared to deal with the application at trial as B.F.’s counsel proposed. I pause to deal with that aspect of the matter now.

[105] Some context is required. In March, 2016 four video cameras were installed at the E[…] residence. One was mounted inside the residence, at the rear of the living room. Activated by movement, the camera captured silent images of the front portion of the main floor of the residence.

[106] It is undisputed that the camera was in an operating condition on November 18, 2016. As mentioned, Constable Hartery viewed images recorded during the morning of November 19, 2016.

[107] The complainant said that she boxed up the DVR when she vacated the E[…] residence. She gave the DVR to the LPS when asked to provide it. Constable Hartery testified that he was asked by the Crown to obtain the surveillance taken inside the E[…] residence on August 1, 2017.

[108] Mr. Poc is a forensic video analyst. He examined the DVR and its contents on November 28, 2017. He was able to review video taken for the period starting December 9 and ending on December 21, 2016.

[109] When asked why he was unable to review images recorded earlier, he explained that the unit had limited capacity. Once exhausted, the oldest data is overwritten. Mr. Poc agreed that he would have been able to review the video taken by the living room camera in mid-November had the DVR been seized soon afterward.

[110] B.F. maintains that the failure of the LPS to preserve the recorder during the initial stages of the investigation prejudiced him.

[111] He relies on the transcript of a brief interview conducted by Detective Storozuk of the LPS on November 30, 2016. B.F. was then in custody. After a brief introduction, B.F. was told the nature and number of the charges he was then facing and the identity of the complainant. At that point B.F. told the officer that the inside of the E[…] residence was under surveillance and added “you can check that”.

[112] In response Detective Storozuk told B.F. that he was not the investigating officer first assigned to the case. He encouraged the defendant to engage in a conversation. Soon afterward the officer mentioned a specific date - November 18, 2016. He told B.F. that M.P. had returned home from work. He asked the defendant whether he was dealing with an immigration issue. B.F. declined to answer the question until after he obtained advice from a lawyer who was able to represent him. B.F. then mentioned surveillance again and on this occasion added that a camera would be found in the living room.

[113] The discussion ended soon afterward when the defendant reiterated that he had nothing else to say without the benefit of legal advice.

[114] Detective Storozuk was not called at trial.

[115] During cross-examination Constable Hartery acknowledged that video surveillance can be a powerful tool. When asked to explain his failure to seize the DVR on or soon after November 19, 2016, Constable Hartery said that M.P. had alleged the November 18 incident occurred upstairs in the bedroom. A camera had not been installed in that location. He did not believe that video taken downstairs in the living room was relevant.

[116] The officer acknowledged, however, that during the trial much more had been said concerning the events of November 18. The living room featured prominently in the defendant’s narrative. Parts of the story told by the complainant occurred there too. Constable Hartery agreed that video recorded by the camera mounted in the living room may have corroborated the evidence of one of the parties.

[117] Counsel for B.F. submits that steps should have been taken by the LPS to secure and preserve the DVR immediately after the November 30, 2016 interview if not before. He submits that the failure to do so breached s. 7 of the Charter. That section provides as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[118] A failure of the Crown to preserve or to disclose relevant evidence constitutes a breach of the rights s. 7 guarantees: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451.

[119] In the event of an infringement, the court has jurisdiction to grant any remedy it considers appropriate and just in the circumstances including a stay of proceedings: Charter, s. 24(1).

[120] The book of authorities compiled by counsel for the defendant included several examples. In R. v. Nkemka, [2013] O.J. No. 3318 (S.C.J.) a taxi driver was accused of sexually assaulting a passenger in his taxi. Steps were not taken to preserve the in-car video for more than two weeks even though the investigating officer knew that events recorded on the night in question would be overwritten much earlier. The trial judge would have found that the prosecution breached s. 7 by depriving the defendant of his right to make full answer and defence and stayed the proceeding had she not already found the accused not guilty of the charge he faced.

[121] In R. v. C.W., [2013] O.J. No. 6251 (S.C.J.) the defendant’s common law partner alleged that he had assaulted her in September, 2007. The complainant provided a videotaped statement. The complainant later recanted. Nonetheless the defendant entered a plea of guilty in January, 2008.

[122] Years later, the complainant alleged that the defendant had also sexually assaulted her in September, 2007. Additional charges were laid. By that time the videotaped statement was no longer available. At para. 23 the application judge concluded:

…that the Crown has not met its onus of establishing that its duty to disclose the 2007 video to the Applicant has not been breached by the loss or destruction of the video owing to unacceptable negligence.

[123] The sexual assault charge was stayed.

[124] The Crown submits this case is distinguishable. The applicable principles were articulated by the Supreme Court of Canada in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680. That case dealt with a failure of the Crown to preserve evidence that had been in its possession. Writing on behalf of the majority, Sopinka J. wrote in part at paras. 20 and 21:

Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligation and there has accordingly been a breach of s. 7 of the Charter.

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future…

[125] In this case, evidence was not obtained and lost. As in R. v. Nkemka, supra there was a delay in securing it which resulted in certain images being overwritten. B.F. maintains that the LPS was obligated to preserve the images recorded on November 18, 2016.

[126] The failure of the police to take possession of the DVR in November or December, 2016 must be evaluated based on the perceived relevance of the evidence it contained at the time. A prosecutor cannot ignore information which suggests a defendant did not commit an offence: Oniel v. Metropolitan Toronto (Municipality) Police Force, 2001 CanLII 24091 (ON CA), [2001] O.J. No. 90 (C.A.) at paras. 54-55.

[127] In my view, Constable Hartery cannot be criticized for leaving the DVR behind. He reviewed some of the footage captured by the surveillance camera immediately after speaking to the complainant. He observed that B.F. had left the unit. He had not returned.

[128] As Constable Hartery explained at trial, the most recent incident was alleged to have occurred on a different floor and in a different room. Nothing then known suggested surveillance of the living room was significant.

[129] Did anything change after the November 30, 2016 interview? In my view it did not. At that time B.F. mentioned the existence of surveillance several times. He told the interviewer that the camera was located in the living room after hearing mention of November 18, 2016. That was not, however, new information. M.P. had disclosed it eleven days earlier. B.F. did not elaborate. I do not fault B.F. for an instant. He was entitled to remain silent.

[130] However, it was only at trial that the position of the defence became known. That was the time B.F. provided his version of events. That is when he said that his movements during the night in question did not take him upstairs. The mere mention of surveillance of the living room did not, without more, make it relevant to any of the charges. In my view, the failure to preserve the DVR was not the product of any, let alone unacceptable, negligence: R. v. Laing, 2016 ONCA 184 at paras. 34 and 39.

[131] Even if I had concluded otherwise I would not have stayed the ninth and tenth counts of the indictment. That remedy is rarely granted: R. v. La, supra at para. 23. It is one of last resort: R. v. Bero (2001), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.) at para. 42. The failure to preserve the DVR earlier was not systemic. There is no evidence of any ill-will toward the defendant. Surveillance was mentioned but without any context.

[132] While assessing the degree of prejudice caused to the defendant is problematic since the footage in question has never been viewed, it cannot be assumed that it would have exonerated him. The defence maintains it would have corroborated B.F.’s narrative. However, no one can say whether or to what extent it would have advanced the position of one side or the other.

[133] It is clear, however, that B.F. thought it significant when interviewed. That is something I have borne in mind when considering and assessing the evidence given by him at trial.

ii. Considerations in the Credibility and Reliability Assessment

[134] Lengthy argument was made concerning the credibility and reliability of the complainant and the defendant.

[135] Those assessments can be exceedingly hard. As Bastarache and Abella JJ. noted in R. v. Gagnon, 2006 SCC 17 at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[136] Similarly, in R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at para. 55, Watt J.A. said:

The assessment of credibility may not be a purely intellectual exercise. Myriad factors are involved. Some factors may defy verbalization.

[137] Corroboration of the evidence of a complainant is not needed for there to be a conviction.[^3] Truthful and reliable evidence of a complainant can meet the standard of proof beyond a reasonable doubt.

[138] In appropriate cases, a considered and reasoned acceptance of the evidence of a complainant beyond a reasonable doubt may form the basis for the total rejection of the answers provided by the accused on disputed points: R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53; R. v. P.R., 2014 ONCA 131 at para. 4. Testimony given by an articulate defendant may be rejected even if answers were responsive and the witness was unshaken in cross-examination. Same may not even leave the court with a reasonable doubt when stacked against the balance of the evidence presented to and accepted by the court: R. v. J.A., 2010 ONCA 491 at para. 22.

[139] On the other hand and as noted earlier, it does not mean that the Crown’s case has been proven beyond a reasonable doubt just because an accused has fared poorly in a credibility and reliability assessment.

[140] The defence submitted that M.P.’s evidence concerning the various incidents was, at times, unbelievable and at others, wholly unreliable. Several reasons were advanced.

[141] First, the accounts were often vague. Several dates were imprecise if given at all. The description of some of the incidents was brief and lacked detail.

[142] Second, the complainant admitted that she had given information to others that was not truthful. She had testified on B.F.’s behalf during a child protection proceeding in December, 2013. At that time she told the court she had known B.F. for about a year. During this proceeding, M.P. admitted that was exaggerated and untrue. The lie, she said, was a product of her unconditional love for B.F. She explained that she was untruthful because she was prepared to do everything in her power to give him the justice she felt he deserved.

[143] M.P. also acknowledged that doctor’s notes were obtained from time to time based on false self-reporting. She agreed that she was not ill in December, 2013 as she had told a physician and her employer. She was supporting B.F. during the trial to which I have referred. The complainant also said she misled Dr. Patel in February, 2016 when she told him that she had been in a fight at a bar.

[144] Third, the defence pointed to a number of instances where M.P. gave evidence at trial that was inconsistent with things she had said elsewhere. It is well established that an inconsistency may suggest a lack of credibility or reliability if it involves a material matter which one could reasonably expect would be accurately and consistently described: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.) at 354.

[145] I turn to those inconsistencies.

[146] M.P. was interviewed by the police for several hours on November 19, 2016. She mentioned the incident that occurred after an attendance at a Caribbean bar. During the interview, M.P. said that she spoke to Sue Allen while entering the washroom. However, at trial she remembered the conversation occurring after she exited a stall. When asked about the inconsistency she was adamant that the version provided at trial was the accurate one. The complainant said that she was exhausted when interviewed by the police.

[147] Other differences arose in the context of the alleged sexual assault. When interviewed by the police, M.P. made no mention of having had sex while at the motel with another man. In re-examination, the complainant was asked to explain that omission. She said that it was a product of embarrassment.

[148] As mentioned, at trial M.P. said after the motel incident B.F. rolled her over onto her stomach before engaging in non-consensual sexual intercourse. During the preliminary hearing, M.P. offered a different description. At that time she said the act started while she was on her back and that B.F. was on top of her. When asked about the inconsistency M.P. explained that the event was stressful. It happened quickly and in the dark. She agreed that her testimony reflected memories that were vivid at the time she described them.

[149] When describing the incident following the discovery of a ring at trial, M.P. said that she suffered cuts and bruises. During the preliminary hearing, however, the complainant mentioned the latter only.

[150] When describing the October 18, 2014 incident at trial, M.P. said that members of the LPS arrived at the H[…] Street townhouse about an hour after she was struck above the left eye. Twenty to thirty minutes was the estimate provided during the preliminary inquiry.

[151] M.P. described some of the events of November 18 and 19, 2016 differently too. When interviewed by the police, M.P. said the argument began when she called B.F. after arriving at work and told him, among other things, that he was abusive. She made no mention of an off-hand comment to a co-worker. While asked to explain the discrepancy the complainant did not really do so. She simply said that she frequently spoke to B.F. in that manner.

[152] As well, the complainant told the police that B.F. became angry on the 18th because of the contents of a letter he had received concerning an immigration issue. That topic had not been mentioned during direct examination but was raised by B.F. In cross-examination, M.P. agreed that a fear the complainant had jeopardized the defendant’s immigration status was a source of friction. However, she remembered that the brief exchange with a co-worker was a more significant source of disagreement.

[153] During the trial, M.P. made no mention of injuries during the mid-November, 2016 incident. Conflicting information had been provided by the complainant during the preliminary hearing. Initially she said that being pushed onto the bed by B.F. had resulted in a large bruise on her chest. Soon afterward she said that she suffered a small bruise that appeared the next day. Later M.P. pulled the top of her shirt open. No bruising was visible. Nor did she provide any photograph to the LPS afterward although invited to do so if any injury appeared. M.P. offered an explanation. She said that she had slept most of the following day.

[154] Finally, the defence noted that M.P.’s memory of events was, on occasion, clearly wrong. For example, initially the complainant said she thought the events of October 18, 2014 occurred during the evening. As noted earlier, Constable Costa said that officers were dispatched at 8:23 a.m. and had left the townhouse shortly after 9 a.m.

[155] The Crown acknowledged the points I have just recited. However, the prosecution asked the court to take into account the fact that M.P. did not try to conceal the fact that she had lied when testifying in family court. She also offered an explanation of why she had done so. Her desire to help B.F. was also the reason she had misled her doctor. Her final untruth concealed the physical abuse to which she had been subjected. She was not yet ready to disclose what she had endured.

[156] Inconsistencies in the complainant’s evidence were fairly admitted too. However, the Crown asked that the court consider their nature. Those relating to minor matters or matters of detail are common and expected: R. v. G. (M.), supra at p. 354. Dates and time of day fit often within those categories, particularly when from long ago.

[157] Explanations for a change in an account must be considered too. M.P. said that she did not tell the police about having sex with a customer at the motel because of embarrassment.

[158] The Crown also noted that the vast majority of the details of the various incidents were consistently told. When the basis of an attack on a complainant’s credibility is inconsistency between testimony at trial and prior statements, “points of consistency on essential aspects of the allegations are relevant to the credibility and reliability assessment of a complainant’s evidence”: R. v. Perkins, 2015 ONCA 521 at para. 9.

[159] Further, the Crown argued that the complainant’s testimony accorded with human experience. M.P. did not attempt the impossible and claim to remember every detail of every event. Some memories were sharper than others. Dates connected to a significant event were more easily retrieved than others. The varying level of detail was indicative of truthfulness and a fair and accurate description.

[160] The prosecution maintained that it was B.F.’s testimony that was unbelievable. His evidence concerning the incident M.P. described following the discovery of a ring featured prominently. When examined by his own lawyer, the defendant denied every aspect of the complainant’s account. A ring was not found. There was no argument concerning any such thing whether verbal or physical.

[161] Cross-examination of B.F. occurred over parts of two days. On the second, the Crown put propositions to the defendant. It was suggested to him that he had struck the complainant after the discovery of a ring. The defendant denied the former but agreed that a ring had been found.

[162] He was then asked whether M.P. had shown him the ring. He answered affirmatively. When asked to describe the object. B.F. said the piece was “copperish”. He also took that opportunity to say that he believed M.P. had planted the piece of jewelry to make it look like he had cheated on her, just as she had recently done to him.

[163] At that point the Crown reminded B.F. of the testimony he had given the previous day. At first, B.F. said the memory of the questioner was faulty. He said there was no mention of a ring during direct examination. He had clearly forgotten the completely different evidence he had given the day before.

[164] While waiting for the court reporter to locate and play the relevant portion of his earlier testimony, B.F. interjected and said that would no longer be necessary. He now remembered what he had been said during his examination-in-chief. However, he maintained that his memory had been refreshed by the Crown’s question. Additional details were then recalled. He said he remembered M.P. descending the stairs with ring in hand. She was angry. She asked him about the object. There was a quick exchange of words. Soon afterward the complainant’s sister knocked at the door. M.P. grabbed her purse and left. There had not been any physical confrontation.

[165] The Crown suggested B.F. offered self-serving evidence gratuitously. For example, he denied the leg twisting incident that forms the basis for count one but volunteered that M.P. had told him about leg and ear problems early in their relationship.

[166] Other portions of his account, such as his description of the evening of dancing at a Caribbean bar, were repeated almost verbatim suggesting, the Crown submitted, memorization of an invented account rather than a narrative based on actual events.

[167] This led the Crown to another point. Counsel noted that B.F. was so anxious to distance himself from any suggestion of wrongdoing that he sometimes gave answers that were absurd. The most glaring example related to the final counts in the indictment. Not only did the defendant deny assaulting and threatening M.P. in the bedroom, he denied visiting that floor of the residence even to use the only bathroom it contained. He told the court he used a laundry tub in the basement instead.

iii. Findings

[168] I have summarized the positions of the parties concerning credibility and reliability at length because their counsel articulated, ably and thoroughly, the considerations and examples that arose during the trial.

[169] Concerns with respect to some of the evidence of the complainant did not arise from the manner in which she testified. M.P. seemed confident. She was responsive and cooperative. Sometimes she answered without waiting for the entire question to be asked but that is frequently the case. The complainant had a story to tell and was anxious to provide it. For the most part, M.P. was surprisingly calm. There were understandable flashes of emotion. They seemed spontaneous and genuine.

[170] Any uneasiness arose from the content of some of the testimony the complainant gave. M.P.’s willingness to lie in the family court, to a physician and to her employer, whatever her motivation may have been, is of enduring concern. Her testimony deserves to be and has been viewed through a critical lens.

[171] Reliability was appropriately tested and questioned. As mentioned below, some of the inconsistencies in her testimony were significant. Others were minor and of no consequence.

[172] B.F. receives a similar review. He was comfortable in the witness stand. He answered questions readily. He was self-assured. For the most part, emotions were kept in check. One important exception will be mentioned shortly.

[173] Once again, it was the content of some of B.F.’s evidence that was disquieting. Most importantly, he lied during the trial. The questions asked by his counsel concerning the ring incident were clear and unambiguous. The defendant’s answers were stated with absolute conviction. According to him, M.P. provided an account that was pure fiction.

[174] B.F.’s undoing was his own creation. The Crown asked a question which was not much different than had been posed a day earlier by the defendant’s own lawyer. Yet he provided an entirely different answer clearly forgetting what had already been said. Rather than confront him with the inconsistency immediately, the Crown calmly asked follow up questions which B.F. quickly and confidently answered. He was at the bottom of the trap by the time he even realized he had fallen into one.

[175] His attempt to extricate himself was too late and entirely unconvincing. B.F. went from completely denying that an event occurred to having a detailed recollection of every aspect of an incident he suddenly acknowledged occurring. Bluntly, the untruth was significant.

[176] As well, I agree with the Crown that the defendant went to unnatural lengths to try to distance himself from the events M.P. described. Examples are provided below.

[177] With those comments I return to the counts set forth in the indictment.

[178] I start with the assault charges set forth in counts one, three and four. I found M.P.’s inability to remember every detail of the events she described to be indicative of truthfulness and accuracy. Her description of the pulling of her legs (count one) and of choking (counts three and four) were detailed and told with emotion that seemed spontaneous and uncontrolled.

[179] I agree with the defence that B.F. cannot be faulted for an inability to provide any lengthy narrative in response. He denied that the incidents occurred. There was nothing else for him to remember.

[180] However, I did not believe B.F.’s denials. None of them left me with a reasonable doubt. On each occasion I am satisfied beyond a reasonable doubt that B.F. intentionally applied force to the complainant. The Crown has also satisfied me to the criminal standard that to the defendant’s knowledge, the complainant did not consent to having her left leg twisted (count one) or to having her neck grabbed and squeezed (counts three and four). On each occasion, B.F. assaulted M.P. contrary to s. 266 of the Criminal Code. I find him guilty of each of those charges.

[181] I turn to count two. There was no dispute that the parties attended a bar in the core of London for the purposes of dancing. B.F. said that occurred in late 2013. M.P.’s memory was vague when it came to the date. Two possibilities were mentioned: the spring or fall of 2014.

[182] The issue is what transpired there. According to B.F. nothing of consequence happened. It was a lovely evening during and after their trip downtown. I did not believe him. I found M.P.’s evidence concerning the events at and most importantly, following the attendance at the Caribbean bar to be truthful and accurate in all material respects. An evening out took an unexpected turn because of a perceived slight. In reaching that conclusion I have not forgotten M.P.’s inconsistent description of when she complimented the other woman. While thought provoking, that inconsistency did not relate, in my view, to a significant point.

[183] B.F.’s version of events did not raise a reasonable doubt. The Crown has met its burden of proving to the criminal standard that B.F. slapped the complainant’s face against her will and in anger after the parties returned to the home they then shared.

[184] The evidence of Ms. J.M. concerning observations she made in March, 2014 of bruises and swelling corroborate the complainant’s version of events. The evidence of that witness was credible and reliable. On the other hand, B.F.’s assertion that he never noticed any injuries to M.P.’s face during 2014 is incredible given the nature of the parties’ relationship at that time. I find the defendant guilty of count two.

[185] That brings me to count five. B.F. is alleged to have sexually assaulted M.P. Once again, the parties provided similar evidence concerning some of the background. Notably, they agreed that B.F. had heard M.P. while she was in a motel room with another man.

[186] Their evidence otherwise followed entirely different paths. M.P. described a difficult conversation in which B.F. offered forgiveness and understanding. She went home only to find that she had been lured there so that B.F. could exact retribution. The defendant testified that their relationship temporarily ended with a brief phone conversation during which M.P. learned he had been listening during her liaison.

[187] After careful consideration of all of the evidence I am left with a reasonable doubt. Inconsistencies in M.P.’s testimony were, in my view, material. The sexual interlude with a stranger provided context for the vengeful conduct that allegedly came next. Embarrassment does not explain her failure to mention it when interviewed by the police.

[188] I am certain the forced sexual intercourse that allegedly followed her return home would have been unbelievably traumatic. M.P. provided a detailed account of the act. The change in body positions of both B.F. and the complainant in the different accounts is irreconcilable to me. The fact it was dark does not explain the change.

[189] Furthermore and importantly, I am unable to discount B.F.’s version of what occurred in the aftermath of what can only be described as a very odd sequence of events. This part of the chronology is shrouded in grey. B.F. is entitled to the benefit of the doubt. On this count, I find B.F. not guilty.

[190] I also find B.F. not guilty of count six. While the police responded to a suspected domestic assault on October 18, 2014, a trained and attentive officer found no indication that anything of the kind had occurred. While entirely possible the small bath towel observed by Constable Costa was wrapped around the complainant’s head, it seems more likely that it was located lower down her body given that it was the only item noted. After considering all of the evidence pertaining to this count, substantial doubt remains.

[191] Count seven relates to the incident that is alleged to have occurred following the discovery of a ring in the bedroom of the H[…] Street townhouse. As mentioned, B.F. eventually admitted that M.P.’s account was substantially correct with one exception. He denied there was any physical violence. On that point, I did not believe him. His evidence did not leave me with a reasonable doubt. I accept, without hesitation, M.P.’s evidence on the point. During the course of their argument, B.F. struck M.P. and pushed her head into the kitchen wall. In doing so, the defendant intentionally applied force to M.P. She did not consent to the force he applied and B.F. knew that she did not do so. The inconsistency in M.P.’s evidence concerning the extent of the injuries is, in my view, a minor one. On this count I find B.F. guilty.

[192] Count eight alleges that sometime in February, 2016 B.F. assaulted M.P. causing bodily harm. I have carefully considered all of the evidence concerning this count. It is not disputed that the complainant was injured as a result of an assault. The issue is whether B.F. was the perpetrator as M.P. alleges or whether the complainant was involved in an altercation with another person.

[193] On this occasion, M.P.’s account was particularly detailed. February was noteworthy for a number of reasons. A Facebook message alleging infidelity on the part of B.F. was the trigger for a particularly violent and vile attack. The photographs taken show significant injuries that resulted in several attendances to a walk-in clinic. It is entirely possible that M.P. lied to a health professional about the cause because of embarrassment or to protect B.F.

[194] However, B.F.’s version of events seemed possible too. Two aspects of his story stood out. First, every time B.F. claimed that M.P. had been injured in a fight at a bar, he showed genuine emotion. Sadly, it did not seem to relate to M.P.’s well-being but rather to the fact she dared to go to a licensed establishment without him. If his account was fictional, that anger would not have flashed at all, let alone more than once. Second, albeit in very different circumstances, both parties agreed that B.F. had recommended that M.P. seek treatment at the hospital. That seems an unlikely response if the incident occurred as M.P. described it. In the end, a reasonable doubt lingers. B.F. is entitled to its benefit. I find him not guilty of count eight.

[195] That leaves counts nine and ten. Clearly the parties argued during the evening hours of November 18 and into the early morning of November 19, 2016. Whether the dispute started as a result of the telephone conversation M.P. mentioned or because of the immigration letter B.F. described or for some other reason is unimportant. Undoubtedly the unanticipated letter the defendant received featured prominently.

[196] It is clear that B.F. was very angry and that he held M.P. responsible for jeopardizing his immigration status. It is also clear that he was not comforted by the representation that the matter could be rectified.

[197] According to his own version, B.F. was at times insulting, pouting and unresponsive but never violent. He left the premises briefly and smoked what he described as an “international herb” but when home, he stayed on the main floor at all times except for a visit to the laundry tub in the basement to relieve himself. The video, he maintains, would have corroborated his movements within the E[…] residence had it been preserved.

[198] I did not believe him. I do not believe, for an instant, that B.F. avoided the upstairs at the time in question. If his testimony is to be believed, why would he do so?

[199] That aspect of his story does not border on the absurd, it is nonsensical. I do not believe it. It does not raise a reasonable doubt.

[200] I believed M.P.’s evidence that this was, indeed, the final straw. Her story was vivid, detailed and rang true. She was mocked and insulted. B.F. was unrelenting and became violent. Notwithstanding the inconsistencies concerning bruising, I have no doubt that she was pushed onto the bed, subjected to the “eye for an eye” threat she described while B.F. held her down and held a burning cigarette close to her eye. All of the elements of assault using a weapon contrary to s. 267(a) and uttering a threat to cause bodily harm contrary to s. 264.1(2) of the Criminal Code have been proven beyond a reasonable doubt. I find the defendant guilty of counts nine and ten.

G. Summary of Conclusions

[201] For the reasons given I find B.F. not guilty of counts five, six and eight but guilty of counts one, two, three, four, seven, nine and ten.

“Justice A. D. Grace”

Grace J.

Delivered: April 6, 2018

COURT FILE NO.: 86/17

DATE: 20180406

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

B.F.

REASONS FOR JUDGMENT

Justice A. D. Grace

Released: April 6, 2018

[^1]: According to Viktor Poc the time shown on screen was 1 hour and 9 minutes off the real time.

[^2]: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. H. (C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.).

[^3]: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 2.