COURT FILE NO.: CR-17-36

DATE: 2018/06/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.M.

Isabel Blanchard, Counsel for the Crown

Paul Lewandowski, Counsel for the Accused

HEARD: May 22-24 and May 28, 2018

REASONS FOR JUDGMENT

leroy, J.

Introduction

[1] J.M. (83) and E.M. (76), surname J.M., were married in 1963 and separated in 2015. It was a second marriage for Mr. J.M.. He had five children from the first marriage. Two, namely T. and J.1, were adopted out. L. died ten years ago. J.M. and E.M. had two of their own, namely S.M.1 (53) and S.M.2 (54). S.M.2 was raised from a young age by her grandparents through to age 13 when she returned to reside with the M.s.

[2] There are four pertinent places of family residence over the 52 years of cohabitation: the Street apartment in Cornwall, Summerstown, L[…] Street in Cornwall and Lancaster. The children L., D., C.-A.D. and S.M.1 were members of the Summerstown and L[…] households. S.M.1 left home at age 16. C.-A.D. at age 19.

[3] There are 29 charges levied against Mr. J.M.. The complainants are E.M., S.M.1, C.-A.D. and S.M.2.

[4] The issues are witness sincerity and the reliability of their memories. Mr. J.M. did not testify. He provided a voluntary mixed statement to police.

[5] The reasoning portion of my reasons for concluding the statement provided March 8, 2016 was voluntarily given are attached as Appendix B and are included in these reasons by this reference. The appendices will not be read into the record.

[6] The charges are sorted by complainant in Appendix “C” and are included in these reasons by this reference.

[7] The applicable legal principles are set out in Appendix A and are included in these reasons by this reference.

Evidentiary Summary

S.M.1

[8] S.M.1’s pertinent recollections begin with the home on L[…]. He depicted a dysfunctional environment of parental alcoholism, domestic violence and child abuse.

[9] As to child abuse he described how:

i. At age 11/12 (1975) during breakfast, Mr. J.M. punched S.M.1 in the face breaking S.M.1’s nose – he described how his father told him to shut up or he would give him something to cry about – He said S.M.2 was witness. C.-A.D. was not present. S.M.1 went to school without incident.

ii. At age 9/10 (1974), in the course of an interrogation over missing money, Mr. J.M. lifted S.M.1 off the floor by his hair;

iii. Five or six times after failed house cleaning inspection, Mr. J.M. kicked S.M.1 down a half flight of stairs;

iv. Mr. J.M. struck S.M.1’s back and legs with a belt; sometime with the buckle end depending on how upset Mr. J.M. was at the time – these sanctions were applied in the workshop behind closed doors and resulted in welts and bruises – these were weekly events – S.M.1 fabricated innocent explanations for the marks when someone noticed;

v. One evening, daylight when parents were drunk, Mr. J.M. struck and pushed E.M. who escaped to the Prowler recreational vehicle in the backyard – Mr. J.M. followed and ordered E.M. to vacate the trailer with the words “I am going to kill you” followed by the act of lighting a fire under the propane tank attached to the trailer. S.M.1 suppressed the fire and Mr. J.M. went to the house, returned to the scene with a rifle, this time with words “I am going to kill you” directed to S.M.1 aiming the rifle S.M.1’s way. S.M.1 escaped to a nearby vantage point returning home at 2:00 a.m. after he was sure they were passed out.

vi. As an adult, on a return visit to the home, an impaired and angered Mr. J.M. struck S.M.1’s car with a fire poker; when S.M.1 intervened, Mr. J.M. struck and broke S.M.1’s hand with the poker; after which S.M.1 liberated the poker, S.M.1 punched Mr. J.M. twice in the face; E.M. was passed out at the time. S.M.1 recalled adjourning to a picnic table for two hours after neutralizing his father. E.M. thought S.M.1 drove off in the car to get away from Mr. J.M.. E.M. testified to having witnessed this incident from the house. E.M. thought that S.M.1 removed the poker from Mr. J.M. before he struck S.M.1.

[10] As to spousal assault, S.M.1 testified to at least twenty incidents of domestic spousal violence that involved choking, punching and pushing resulting in contusions, black eyes – he heard E.M. telling Mr. J.M. to stop, stop, stop, crying and slaps.

[11] S.M.1’s explanation for not reporting was fear of reprisal.

[12] Mr. J.M. confirmed on March 8, 2016 that the following assertions are true:

i. Mr. J.M. struck S.M.1’s car;

ii. Mr. J.M. struck S.M.1 with his belt in the laundry room;

iii. Mr. J.M. shoved S.M.1 down stairs ;

iv. The hair pulling incident but denied the loss of hair;

v. The cereal smacking incident but denied the extent of the nose bleed;

vi. The back yard Prowler incident;

S.B.

[13] Ms. S.B. is E.M.’s younger sister by 7 years. She is 68 years of age today. She said she was a regular visitor to the J.M. home when they lived in Summerstown and a periodic visitor after the move to L[…].

[14] She said she witnessed violence in the household as follows:

i. An incident fifty-three years ago while E.M. was pregnant with S.M.1. S.B. was a teenager age 15. It was March or April. She recalls that Mr. J.M. pushed E.M. to the floor and kicked her in the stomach and when S.B. asked him what he was doing he told her to mind her business.

ii. An incident evolving from an argument over dinner preparation during the summer in the same era when Mr. J.M. grabbed E.M. by her hair;

iii. A winter incident evolving from an argument over S.M.1’s medical treatment needs, Mr. J.M. pushed E.M. whose head struck a kitchen cupboard (witness cannot recall how Mr. J.M. pushed E.M.)

iv. An incident during son D.’s 10th birthday party involving alcohol consumption evolving from a disagreement over E.M.’s failure to prioritize fetching Mr. J.M. another beer so Mr. J.M. pushed E.M. against a tree. (The witness depicted the instigation during the preliminary enquiry as something to do with juice or plates for the cake – beer was not mentioned as a factor in the instigating event until trial).

v. An incident on Halloween when a chair broke and Mr. J.M. with a piece of the chair in his hand appeared to S.B. about to strike E.M. with it so S.B. intervened by grabbing Mr. J.M.’s hand with the words “You are not going to strike anyone with that.”

vi. An incident when S.B. overheard a disagreement between Mr. J.M. and E.M. in their bedroom over J.’s demand for sexual gratification – She heard E.M. say No J. No and J.’s words that he was going to get it regardless. (On cross-examination the witness acknowledged she was unsure about these words) This culminated with an encounter between S.B. and E.M. in the bathroom where S.B. observed bleeding from E.M.’s behind, that her wrists were bruised, there were red marks on her neck and bite marks on her breast and that E.M. was white as a ghost. On cross-examination, witness acknowledged that the first mention of bleeding was at trial.

vii. An incident during a house party celebrating S.B.’s wedding, involving alcohol consumption. Mr. J.M. became belligerent and S.B. challenged him – in response, Mr. J.M. pushed E.M. down three steps striking the wall with her back. Witness acknowledged on cross examination that this push was not preceded by argument, that it was more of a foolish drinking incident, E.M. was impaired, she was unhurt and they all chucked about it. E.M. confirmed she was never pushed down stairs by Mr. J.M..

viii. An incident at a Christmas celebration in the bathroom when Mr. J.M. pushed E.M. aside to get past and she went over striking her head against the sink. Witness does not recall how Mr. J.M. pushed E.M.; and

ix. More recently in 2104, an incident involving alcohol while visiting a neighbour, Mr. J.M. prevented E.M. from going home to get something by grabbing her wrist.

E.M.

[15] E.M. described her relationship with Mr. J.M. as so-so – some good times and some times bad. She assigned the bad to his attitude, drinking and violence.

[16] She said his violence towards her was generally related to alcohol consumption, but that he was not violent every time he drank. She made the point more than once that Mr. J.M. targeted parts of their bodies normally covered by clothing – that he struck her in the face one time.

[17] She described his behavior:

i. He threw stuff – beer bottles, telephones, chair leg – she denied that S.B. attempted to disarm Mr. J.M.;

ii. He poked the witness and children with his fists on the arm, side of head, back – E.M. denied that Mr. J.M. kicked her, save one time in the stomach – E.M. was not sure whether she was pregnant at the time;

iii. He pushed her

iv. He grabbed her arms leaving contusion;

v. He kicked E.M. and children on the buttocks;

vi. He choked her – one time so hard that she felt her eyes would pop out;

vii. He disciplined S.M.1 and D. with his belt leaving red welts – she denied knowing that Mr. J.M. struck S.M.1 in the face or that he broke S.M.1’s nose

viii. Following an argument after too much to drink, E.M. exited the house and went to the Prowler trailer and locked herself inside – Mr. J.M. was drunk and smashing things – Mr. J.M. followed and said if you are in the trailer you are going to die there – E.M. said they had a BB gun in the basement and was unaware of its functionality;

ix. One time after they moved to Lancaster, Mr. J.M. pushed her out the door and she fell on stones;

[18] In the realm of sexual misconduct E.M. depicted the following:

i. On an occasion during menses, Mr. J.M. wanted to engage sexually; when she declined he suggested manual stimulation or fellatio – E.M. did not want to perform either – on couple of occasions he grabbed her head and held it;

ii. There were two incidents of anal sex - On an occasion in early fall, late summer in Summerstown, Mr. J.M. insisted on anal intercourse – she did not consent – he said “you are going to get it that way”;

iii. While residing on L[…], Mr. J.M. forced anal sex, again without her consent;

iv. E.M. did not recall that S.M.2 contracted scabies – she thought that S.M.2 lived in their home for one year – she has a memory of painting L. for chicken pox – E.M. denied having been advised of the sexual assault alleged by S.M.2

[19] E.M. did not recall some of the incidents depicted by S.B./S.M.1 or remembered them differently:

i. She recalls having been pushed against a tree – she did not connect it to D.’s 10th birthday, nor to a tree in the front yard – She said the only tree they had was in the back yard next to the deck – E.M. denied scratches on her chest from this event;

ii. E.M. denied recall of the broken chair Halloween incident;

iii. She denied the blood on the floor described by S.B. after anal sex – E.M. denied injury of any sort arising from those events – no bite marks, contusions on wrists and neck or bleeding; - she said Mr. J.M. was not a biter;

iv. She was witness to the confrontation between S.M.1 and Mr. J.M. in 1994. She did not see Mr. J.M. strike S.M.1 with the poker.

[20] On March 8, 2016, Mr. J.M. confirmed that a lot of the following assertions were true:

i. Street apartment – that while E.M. was pregnant with S.M.1, Mr. J.M. pushed E.M. to the floor and kicked her in the stomach;

ii. That after the move to Summerstown, Mr. J.M. was regularly physically and emotionally abusive towards E.M. – that included grabs of E.M.’s arms and hair and pushing – one that involved a piece of broken chair when S.B. intervened – when he got angry, he threw things including chairs;

iii. On or about D.’s 10th birthday, after calling E.M. a fucking bitch, Mr. J.M. pushed E.M. against a tree so hard she had tree marks on her back;

iv. After arguing over S.M.1’s medical needs, Mr. J.M. pushed E.M. against a wall with his wrist against her neck and lifted her off the floor;

v. There were times when Mr. J.M. demanded oral sex and pushed her head down to facilitate;

vi. On L[…], while S.B. and husband visiting, Mr. J.M. grabbed E.M.’s arm and twisted it behind her back;

vii. Another time when S.B. and husband were visiting, S.B. was unwell and in the course of attending to her needs in the washroom, Mr. J.M. pushed E.M. out of the way causing her to fall and strike her head against the toilet;

viii. That Mr. J.M. often pushed E.M.;

ix. On one occasion, after completing her Avon rounds, Mr. J.M. was suspicious E.M. was with another man and choked her with both hands to the point of near unconsciousness;

x. The Prowler incident;

xi. The last incident on L[…] in 2011 involved a push from behind the result which was that E.M. stumbled over stones and injured her knees;

xii. In 2014, Mr. J.M. grabbed E.M.’s forearm to prevent her from returning home for some purpose. She pulled away and Mr. J.M. pushed her.

S.M.2

[21] S.M.2 was raised by her grandparents in New York State. She lived with the M.s on L[…] from age 12 – 16. She left because of violence in the home.

[22] S.M.2 recounted the following:

i. She contracted scabies at age 13 – Mr. J.M. knew what scabies were and the necessary treatment – he applied a cream over her entire body that included the interior of her vagina – she confirmed Mr. J.M. was otherwise clinical in deportment - she said her mother knew because Mr. J.M. told her what the treatment involved. At trial, S.M.2 denied having told anyone about this. In her statement to police, S.M.2 reported having disclosed to her mother, C.-A.D. and S.M.1. E.M. recalled that L. required salve application to treat small pox. She denied recall of this incident or any sexual assault against S.M.2.

ii. She said that days later, Mr. J.M. propositioned her for anal sex – he entered her room and closed the door - she said no please – he grabbed her arms and kicked her in the shin, shoved her and left – S.M.2 said she told C.-A.D. and her mother about the proposition and was chastised by E.M.;

iii. She said S.M.1 was disciplined physically more than anyone else – she observed a punch in the mouth at the breakfast table resulting in a bloody lip and nose, pushes down the stairs and heard the basement strapping;

iv. She recalls that Mr. J.M. punched E.M. in the face, grabbed her and threw her around. She recalled the incident involving the Prowler trailer – she heard her parents fighting so she and S.M.1 vacated the house to escape – She saw E.M. enter the trailer, she saw Mr. J.M. light the fire and S.M.1 suppress it – she heard her father say he would kill S.M.1 - she saw Mr. J.M. return to the house to collect the gun from the basement, that Mr. J.M. pointed the gun at S.M.1 accompanied by the words “stay out of my business”.

[23] On March 8, 2016, Mr. J.M. confirmed the truth of the following assertions:

i. That when S.M.2 was 12 or 13, Mr. J.M. applied cream over her naked body and in the course of the application inserted cream inside her vagina with 2 fingers; and

ii. On another occasion, Mr. J.M. entered S.M.2’s room and propositioned her for anal sex and that when she declined Mr. J.M. grabbed her momentarily until he relented and left.

C.-A.D.

[24] C.-A.D. recounted the following incidents:

i. She heard her parents one night during her 13/14 year – 1975 – Mr. J.M. ordered E.M. to bend over the kitchen table – E.M. said No J. no no – C.-A.D. concluded rape;

ii. An incident when Mr. J.M. thought one of the children had taken a Peppermint Pattie – when he did not achieve resolution, he belted all five children – the belt left welt marks – she said that all five children always received the belt;

iii. She said she witnessed the cereal smacking incident depicted by S.M.1 – she said Mr. J.M. gave S.M.1 a backhand;

iv. She observed Mr. J.M. pushing/kicking S.M.1 down stairs two times;

v. C.-A.D. confirmed she was not assaulted by Mr. J.M. after her 19th birthday, [...], 1978.

[25] She said she observed times when Mr. J.M. punched E.M. in the face and other wise smacked her around 3 or 4 times per month. She observed that her mother had to wear makeup to obscure facial contusion. She witnessed her father smashing objects at his disposal. On an occasion, when she was 19, Mr. J.M. was pursuing E.M.. C.-A.D. wryly said to Mr. J.M. “You must be having fun doing this”. Mr. J.M. raised his hand to strike C.-A.D. who said “if you strike me you will never see me again.”

[26] Mr. J.M. confirmed the truth of the following assertions:

i. that he struck C.-A.D. with a belt;

ii. that he raised his hand to her just prior to her exit from the home; and

iii. the children would have heard incidents within the home between Mr. J.M. and E.M. that included Mr. J.M. yelling at E.M., Mr. J.M. striking E.M., E.M. crying and forced sexual relations.

Positions of the Parties

Crown

50-Year Delay in Reporting

[27] The Crown referenced the pertinent passages from D.D. Each complainant suggested that he/she was fearful of the accused and the punitive repercussions of disclosure – a worse beating or even death. E.M. referenced embarrassment.

Inconsistencies/Incongruities

[28] C.-A.D. recounted an event when C.-A.D. was in the basement hearing her mother saying No no J. no. She heard a bang and concluded the bang was against the kitchen table and rape. E.M. said there was anal sex in the bathroom. The location within the home where something happens is peripheral.

[29] People experience and retain memory differently. When assaultive behaviour becomes routine, we can’t expect detail regarding assault particulars and dates. Every family member testified to witnessing assaults against the others.

Collusion

[30] S.B. and E.M. attended the initial interview with police together. E.M. omitted to mention anal sex as an aspect of the sexual assaults perpetuated against her. Following S.B.’s interview wherein this was elicited, the officer met again with E.M. to review this aspect of the investigation and E.M. confirmed.

[31] E.M. said it happened in the bathroom – S.B. said it happened in the bedroom and they consulted in the bathroom.

[32] E.M. and S.B. deny collusion. The interviewing officer did not have notes or memory of the between interview dialogue. I did not permit the officer to testify to his standard practice. The ONCA in R. v. Neville Thompson, [2001] opined that the officer’s standard practice can be indicative of what happened. For the purpose of this discussion, I can assume that DC Wood’s standard practice was to refrain from off record discussion of substantive matters nor would he provide an environment conducive to on-the-go complainant consultation.

[33] The Crown submitted that if they colluded. their narrative details would be more similar.

S.M.2

[34] The first Crown argument is based on common sense. Why would a father apply the required cream to the body of his 13-year old daughter? Why not the mother? Why not with a brush? If vaginal application is requisite then why not anal?

[35] In summary, the Crown submitted the complainants were credible witnesses. There was ample corroboration – everyone recalls that S.M.1 was pushed down stairs into the bi-fold doors; that S.M.1 was punched in the face, that he was belted; that they were all belted.

Defence position

[36] When complainants rely on memory and re-remembering as is the case at bar, dates, times, places, details will be foggy. The flip side is that the omnibus counts are the more appropriate. The re-remembered evidence lacks the cogency to ground the specific counts.

[37] Defence submitted that among the twenty-nine counts, there are specific and omnibus counts. This was an assaultive style household. There is evidence on the omnibus counts, but the evidence on the specific counts of criminal activity are fraught with reasonable doubt.

[38] The real focus at trial was on the sexual charges. A husband could not be convicted for raping his wife in Canada until 1981. The buggery count is an attempt to circumvent the rape protection.

[39] E.M. and S.B. had eleven minutes together between interviews – there is evidence they did talk – that was sufficient time to change story. E.M. said that S.B. was present in the home for two incidents of anal sex. Either S.B. forgot the second incident or E.M. misremembered it.

[40] S.B. was not credible. She added the blood detail only at trial. She described injuries to E.M.’s neck and wrists and a bite mark on her breast. She recounted how E.M. said he hurt me real bad and then expressed reservation about the accuracy of that declaration. E.M. said she was uninjured.

[41] An indecent assault is the application of force without consent in circumstances of indecency. How can we distinguish between buggery and indecent assault?

[42] C.-A.D. acknowledged she was not assaulted after her 19th birthday.

[43] As to S.M.2 and the cream application, we cannot jump to the inexorable conclusion that Mr. J.M. brought sexual intent into clinical treatment: we do not have the instructions, parents have equal responsibilities regarding child care and there is no evidence of indecent gratification.

[44] Defence submitted that in respect to count 16 – the proposition, is not an indecent assault – nothing came of it.

[45] In respect to count 24, involving the pointing of the firearm, there is no evidence of an operational firearm in the home. The antique rifle hung on the wall was disabled. No one knew if the rifle in the basement was operational. It is not a defence obligation to prove the firearm was disabled.

Principles Applied

Collusion

[46] Collusion signifies a secret agreement or cooperation for a deceitful purpose.

[47] That there is denial of collaboration among the complainants does not mean they did not on some level. That Mr. J.M. confessed to so much of the grievances allays concern for more than nominal contrivance.

[48] That said S.M.1 and S.B. punctuated their narrative with palpable animus towards Mr. J.M..

[49] I think it would be extraordinary if the complainants did not talk about their family life experiences inter se. I don’t doubt S.M.1 and S.B. attempted to influence E.M. and possibly S.M.2 and C.-A.D.. It takes very little to contaminate a memory. Their collective denial marginally erodes my belief in their sincerity. I don’t believe they had to collaborate in respect to the family culture and how it manifested itself.

The Statement

[50] The mixed statement attracts significant weight. The confession is both credible and reliable. Mr. J.M. began the interview intending to follow the legal advice he received. It became apparent he was affected by the loss of family. He commented more than once that the picture depicted by the allegations was ugly. As dysfunctional as the picture portrayed by the disclosures suggested, it was his life for fifty years. At the time, he hoped a sincere acknowledgement of wrong-doing would ameliorate the estrangement.

The effect of the passage of time on memory

[51] The allegations date over fifty years and this raises issues of reliability of sincerely believed memories. Memories are not frozen in time, and new information and suggestions can become incorporated into old memories over time. Individuals recall the bones of a happy or traumatic event. The peripherals not so much. The testimony at trial illustrated just that.

Time as an essential element

[52] I am satisfied the defence position does not make time crucial to the defence in the sense of for example an alibi. That C.-A.D. does not appreciate the various elements of an assault does not vitiate her evidence of events after her 19th birthday. In all the circumstances time is not an essential element of any of the offences before the Court – B.G. infra paragraphs 43 and 44.

S.M.1

[53] S.M.1’s interest in retribution was palpable. He decided to report to police. He carries unresolved anger toward his father. He said he remembers dysfunction, alcoholism and domestic violence. He felt there was no love in his father.

[54] Although S.M.1’s animus was obvious, I am confident he testified to what his memories tell him happened. That said, those memories have aggrandized in force and effect.

[55] Much of what he said happened in the home was validated/corroborated by the other complainants. The refrain is that S.M.1 took the brunt of corporal discipline – the belt discipline in the basement, the punch or backhand to the head over breakfast, the hair pulling, the role of protector/intermediary during the hundreds of drunken arguments between his parents, including the Prowler incident and the disrespect inherent in physical response to less than perfect chore completion. Mr. J.M. confirmed the fundamentals of these incidents.

[56] Aside from the specific incidents, the omnibus depiction was of panoptic dysfunction strewn with regular drunken disagreement and violence. Mr. J.M. held steady employment though his working life but was, in the vernacular, a weekend or time-off alcoholic. When he was not working, he drank. When he drank, bad things happened. He was easily irritated and took it out on his family. That is why we are here.

[57] The publics’ appreciation of the merit of corporal discipline of children diminished over the last 40 years. In some jurisdictions, there remains debate over whether use of a belt crosses the line from reasonable parenting into criminal assault. S.M.1 recalled there were times when Mr. J.M. struck him with the buckle end of his work-belt. When this was happening in the J.M. household, the belt or kick was more common than we would like to think.

[58] That said, striking a child with the buckle end of a belt is over the line and constitutes an assault.

[59] The same can be said for the strike to the head (face), the hair pulling and push(es) down stairs. That was unacceptable corporal discipline in every stage of history.

[60] Mr. J.M. admitted the strike to the face. They disagree on the force and effect. Mr. J.M. denied the bleeding. S.M.1, young and inexperienced would have been shocked by any blood from his nose or face. That incident would stand out in his memory. S.M.1’s memory embellished the injury, if not the emotional trauma. He attended school shortly after without incident.

[61] That said, a meaningful strike to the head is an assault that was not reasonable force in the circumstances. I accept that Mr. J.M. struck S.M.1’s head with his hand – that is the assault – the damage is less clear but there is no issue there was sufficient force to elicit blood flow.

[62] All family members recall one or more times when Mr. J.M. pushed S.M.1 down the stairs through the folding doors at the bottom. There is no reasonable justification for pushing a young child down stairs. Mr. J.M. confirmed. Those were assaults.

[63] S.M.1 reported the hair pulling. Mr. J.M. acknowledged the act but denied that hair was torn from his son’s head. Mr. J.M. and S.M.1 have different memory of the extent of the lifting and effect. The reason doesn’t matter - there is no justification for lifting a child by his hair. That was an assault.

[64] The events of the prowler incident stood out in the minds of all involved. It began as another in the long string of weekend drinking turned ugly. S.M.2 and S.M.1 heard the escalation and knew where it is going. The situation went out of control when Mr. J.M. lit the fire under the propane tanks.

[65] I accept that Mr. J.M. began with the threat of death to E.M.. He was drunk and angry. When S.M.1 suppressed the fire it makes sense that Mr. J.M.’s vitriol would shift to S.M.1. I accept he threatened S.M.1 with death. Counts 22 and 23 are made out beyond reasonable doubt. The ignition of the fire under the propane tanks corroborates the threat against E.M. – not the exact word rather the essence.

[66] No one in the family could say the rifle in the basement was operable. It was stored in the basement forever. E.M. confirmed it was never used or loaded. Mr. J.M. retrieved it and threatened S.M.1 and pointed the rifle in S.M.1’s direction. That image would be memorable. Mr. J.M. acknowledged that he brandished the rifle and told S.M.1 to stay out of his affairs and he was going to kill S.M.1.

[67] Although the Crown does not have to prove the gun was operable without some evidence from which it can be inferred that the alleged firearm is because of some defect or inadequacy incapable of being fired, in this case E.M. raised the issue.

[68] I am not persuaded beyond reasonable doubt the gun was operable. The jurisprudence allows for circumstantial evidence to support the fact of firearm function such as availability of firearms to the accused, brandishing the weapon for effect, threatening language. In the case at bar the rifle was seized. That no one testified to its operational capacity suggests it was inoperable - Count 24 is dismissed.

The car, the fire poker and the broken hand

[69] - S.M.1 was an adult – age 30 in the armed forces, Mr. J.M. was in his 60’s. S.M.1 exacted retribution for anything Mr. J.M. may have done at the time.

[70] E.M. said she recalled the incident. S.M.1 said she was passed out. Regardless, alcohol was salient. E.M. thought S.M.1 wrestled the poker from Mr. J.M. when he struck the car.

[71] S.M.1 said he did not report the incident because there might be complications vis-à-vis his status in the armed forces. It was not in S.M.1’s interest to report an altercation with his father relative to an injured hand especially since he punched his father at least twice.

[72] Mr. J.M. acknowledged the mischief inherent in striking S.M.1’s car with the poker.

[73] S.M.1 acknowledged throwing rocks at Mr. J.M.. It was another in the long line of family conflict. Truth be known, they were equally at fault. Count 26 is dismissed.

[74] I am satisfied that Mr. J.M. struck S.M.1’s car with the poker without legal justification or excuse or colour of right and caused damage less than $1,000. – finding of guilt on count 27.

[75] There will be a finding of guilt to five counts of assault (four under 231(1) and 1 under 231(2) – belt buckle or strike to the face, one count of mischief, and one threatening – Counts 8, 10, 18, 19, 21, 23, 27 – acquit count 24, 26.

S.M.2

[76] S.M.2 came on the scene after 13 years in another environment. She talked of two sexual offences. E.M. denied knowledge of either.

[77] The common sense submission offered by the Crown to characterize Mr. J.M.’s application of scabies cream is rejected. The inferences sought are based on stereotype and speculation and without more, ought not to be made. S.M.2’s evidence is that the application was clinical without demonstration of sexual gratification in a process involving a highly contagious condition.

[78] The evidence regarding the proposition for anal sex is more pernicious. It is other discreditable conduct temporally close to the ointment allegation, same parties that informs the sexual element of the ointment allegation. It establishes Mr. J.M.’s state of mind vis-à-vis his daughter.

[79] The proposition, whether it be digital or penile penetration in the week following the application of the scabies cream colours/taints what could arguably have been innocent, clinical and appropriate parenting and informs the sexual connotation of the vaginal digital penetration.

[80] S.M.2’s recall is that Mr. J.M. entered her bedroom, closed the door and said “let me put it in your bum.” When S.M.2 demurred, she recalled Mr. J.M. grabbed her arms, kicked her in the shin and left. S.M.2 said she told her mother whose response was denial and concealment – Don’t say those things of your father.

[81] After some reflection, Mr. J.M. acknowledged that S.M.2’s grievances were true.

[82] The Higginbottom reasoning catches Mr. J.M. for the anal proposition. When a denial of sexual gratification is punished by physical harm, the sexual integrity of the victim is no less violated than when compliance is secured by force. Mr. J.M. knew that S.M.2 was not consenting to the application of force and he grabbed and kicked her anyway.

[83] Mr. J.M. is found guilty of two counts of indecent assault on S.M.2 – counts 15 and 16. Count 17 merges into the indecent assault counts and is dismissed. S.M.2 confirmed that Mr. J.M. was never otherwise violent towards her.

C.-A.D.

[84] There are two counts involving C.-A.D. directly, numbers 9 between 1967 and 1980 and 25 between her 19th and 20th birthdays.

[85] C.-A.D. said she was strapped with the belt resulting in welts and marks. S.M.1 said the girls were never strapped – that was the domain of the boys, S.M.1 and D.. S.M.2 seemed to validate that perception.

[86] C.-A.D. recounted an incident in her 19th year wherein Mr. J.M. was chasing E.M.. C.-A.D. recalled she said to her father “You must have fun doing this’ to which Mr. J.M. raised his hand to strike her. C.-A.D. said she responded with the promise that if Mr. J.M. struck her, he would never see her again. Mr. J.M. stood down.

[87] C.-A.D. recounted the Peppermint Pattie incident concluding with all children getting the belt leaving red welts. I accept that Mr. J.M. applied a strap but am less confident in the extent of injury.

[88] I am not convinced that striking a child with a belt 30 – 50 years ago without reliable evidence of injury would attract conviction. – Count 9 is dismissed.

[89] C.-A.D. confirmed she was not abused after her 19th birthday. Ironically, based on Mr. J.M.’s retreat on her threat to leave, C.-A.D. was held in esteem by her father. That said, a person commits an assault when he attempts or threatens, by an act or gesture, to apply force to another person, if he has or causes the other person to believe on reasonable grounds that he has present ability to effect his purpose.

[90] Mr. J.M. confirmed the truth of C.-A.D.’s narrative. The essential elements of an assault are made out – there will be a finding of guilt in relation to count 25

E.M. and S.B.

[91] S.B.’s testimony revealed animus towards Mr. J.M.. She connected his misbehaviour to beer consumption. She modified recall for cogency. Where her testimony varies from what E.M. said, E.M.’s version is preferred.

[92] She escalated Mr. J.M.’s transgressional context for the incident during D.’s 10th birthday party between the preliminary enquiry and trial. At the preliminary enquiry, she said the argument between E.M. and Mr. J.M. began over suitability of the juice or cake plates. At trial, the genesis for the argument related to Mr. J.M.’s demand for a beer.

[93] S.B. introduced the image of a bloody consequence to a sexual assault for the first time at trial. I thought she was driving the inference that the blood was the result of anal penetration laceration.

[94] Relative to E.M.’s narrative, S.B. observed different personal injuries – bruised wrists and neck, bite marks on E.M.’s breast denied by E.M.. Although the differences can be easily attributed to time lapse, the aggrandizement in S.B.’s recall is consistent with unintentional or deliberate recall evolution.

[95] Further, S.B. depicted the context for her wedding party push down the stairs as malevolent. On cross, she acknowledged the push was playful stupidity.

[96] The point is that S.B.’s testimony is lacking in sincerity due to animus and reliability due to the evolving narrative manifest in her testimony.

E.M.

[106] My impression is that E.M. is ambivalent. E.M. and Mr. J.M. were together for fifty-two years. It wasn’t all bad. I note the last incident that recounted involved a social outing with neighbours. They celebrated birthdays, Halloween and other special occasions. E.M. drank alcohol along with her husband that dissolved their respective inhibitions and exacerbated their misbehavior. S.M.1 lamented the burden they placed on him to mediate their generally meaningless disputes.

[107] E.M. did not over sell her narrative. If anything, she tended to mitigate the brutality of Mr. J.M.’s behaviour. S.B. and the children said they observed many times when E.M. had to wear makeup to obscure facial and neck contusions. E.M. confirmed that Mr. J.M. struck her in the face one time and strangled her one time – after the Avon route. She did not deny routine assaultive behavior. She recounted how Mr. J.M. would target parts of the body that ordinary clothing obscured when he struck her.

[108] On the occasion early on when Mr. J.M. pushed E.M. to the floor and kicked her in the stomach, she did not confirm S.B.’s assertion of E.M.’s pregnancy.

[109] While E.M. confirmed an incident when Mr. J.M. shoved E.M. against a tree, she denied S.B.’s assertions of scratches on her chest.

[110] E.M. confirmed the Prowler incident, at least to what she could hear from inside the locked trailer. She did not overstate.

[111] E.M. denied that Mr. J.M. ever pushed her down stairs. That is consistent with the version S.B. relented to on cross-examination of impaired stupidity.

[112] E.M. denied the incident recounted by S.B. in Summerstown on Halloween evening

[113] On the occasions of anal intercourse in both Summerstown and on L[…] , to which she said she did not consent, when S.B. communicated with E.M. in the bathroom, E.M. denied injury, biting, blood and even that she opened the door to allow entry. Any blood there may have been would have been menstrual discharge.

[114] E.M. confirmed there were many common assaults in conjunction with alcohol as did Mr. J.M.. S.M.1 placed the number of assaults at twenty. These assaults ranged from punching, a throttle, pushing, grabbing, kicking, throwing household items, breaking beer bottles periodically over fifty-two years. I accept he grabbed E.M.’s arm to prevent her from going home during the lawn party much more recently – finding of guilt counts 28, 1 – 5, 11, 12, 13, 14 and 20.

[115] As noted, I accept that Mr. J.M. threatened E.M. with death during the Prowler incident. I accept that Mr. J.M. threatened E.M. after he learned of her leaving for Nova Scotia – finding of guilt counts 22 and 29. It took some time for Mr. J.M. to internalize and accept that his spouse abandoned him.

[116] E.M. did not intend to put the details of their sexual relationship in issue. She brought an experienced mature perspective. When E.M. gave the first statement to police, she neglected to recount incidents of anal intercourse. There was opportunity of dialogue with S.B. between the first and second police interviews and she disclosed non-consensual anal intercourse during the second interview. At trial, in response to questions related to sexual interaction with Mr. J.M. while menstruating, she made reference to demands for fellatio, manual stimulation and a three-way. She did not consent to fellatio but did as he demanded to the point of almost gagging. She was definite in refusing the three way. She did not mention the incidents of anal intercourse during examination in chief until her memory was refreshed twice with the depiction in the second statement to police. Even after a review of that depiction the first time, she declined to testify about it. It was only after the second review was her memory of non-consensual anal intercourse incidents refreshed.

[117] On this issue, I remind myself that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is a doubt that logically arises from the evidence or lack of evidence. It is not enough to believe that Mr. J.M. is probably guilty of non-consensual anal intercourse.

[116] I am concerned about the inferences that should be drawn from E.M.’s seeming reluctance to disclose or discuss anal intercourse.

[117] On one hand, even though there were two incidents of non-consensual anal intercourse, it could be this conversation made her uncomfortable. Both sisters made reference to their privacy dispositions. It could be she was more focussed on the asexual domestic violence such that the incidents of anal intercourse were less than pleasant, but peripheral.

[118] On the other, without explanation for the memory lacuna, both with police and during the trial having regard to the nature and character of the assault and how if it happened it would stand out in memory, it could be the activity, anal or vaginal, was consensual or untrue. Once E.M. began recounting the Summerstown allegation, it was apparent she was not prudish. She said Mr. J.M. was rough with sex, that he had a hard on and put it up the chocolate channel and when he was done threw her aside. That this was an activity she did not enjoy but performed and he had temerity to throw her aside informs her umbrage. That the topic of their sexual relations was not a grievance, E.M. thought worth offering to police or the court without pointed prompting suggest it’s possible she wanted to protect the privacy and integrity of their marital sexual relations whatever they were.

[119] Neither S.B. nor C.-A.D. are of assistance on whether there was non-consensual anal intercourse. Neither were intimate to the inner working on the marriage. S.B. was trying to persuade of anal intercourse, but her conclusions were based on surmise. E.M. denied the dialogue that S.B. remembers – He hurt me real bad – E.M. said no injuries. When S.B. asked what happened, E.M. said nothing, but that she would be out in a minute. C.-A.D. concluded rape.

[120] I am not convinced beyond reasonable doubt that E.M.’s reluctant recounting of non-consensual anal intercourse was an accurate recollection. She derived no joy but then spouses submitted to acts they did not enjoy to keep peace. At the time a married spouse could not be convicted of sexually assaulting his wife. The dynamics have since changed for the better. Accordingly count 6 is dismissed.

[121] I accept E.M.’s spontaneous offering of the demand for non-consensual fellatio and how she performed against her wishes – finding of guilt for indecent assault count 7.

[122] Accordingly, finding of guilt on counts 1 to 5, 7, 8, 10 to 16, 18 to 23, 25, 27, 28, 29. Acquittal on counts 6, 9, 17, 24 and 26.

The Honourable Mr. Justice Rick Leroy

Released: June 22, 2018

Appendix “A” to reasons for judgment J.M.

Applicable Principles

[97] Crown counsel referred the Court to Crown Book of Authorities. The pertinent segments are attached under Appendix A to these reasons. I am instructed by the same.

[98] There are no universal truths about how human beings behave.

[99] In our society today, no man has a right to abuse any woman under any circumstances. Things were different fifty years ago when spousal rape was not an offence.

[100] There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant – R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 para 65.

[101] The assessment of evidence includes consideration of benchmarks of reliability and credibility such as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency, consistency with other evidence, the availability of other sources of information and context – the significance of the event to the witness at the time it was perceived and whether the evidence accords with logic, common sense and human experience.

[102] The existence of a motive to fabricate is germane to a witness’ credibility. Any reason to make a false allegation is a factor which triers, using their common sense, will and should consider in assessing a witness' credibility.

[103] Where there are inconsistencies, the Court needs to consider the totality of such inconsistencies and whether they are such as to raise reasonable doubt. Inconsistencies on minor matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The judge is then placed in a dilemma of trying to decide whether or not it can rely on the testimony of a witness who has demonstrated a carelessness with the truth – R. v. G.(M.) (1994) 1994 8733 (ON CA), 93 C.C.C.(3d) 347 – per Justice Galligan J.A.

[104] It is for the trial judge to assess an inconsistency against the evidence as a whole and against the inherent probability or improbability of the evidence. That assessment may differ from witness to witness – R. v. Janjic, 2010 ONSC 4704, [2010] O.J. No. 3819 – para 36.

Base Principles

[105] The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials. A criminal trial is not an inquiry into what happened, or whose case is stronger. Its ultimate function is to determine whether the Crown can prove the specific allegations beyond a reasonable doubt.

[106] The presumption of innocence stays with the accused throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Mr. J.M. does not have to prove anything.

[107] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to absolute certainty than to proof on a balance of probabilities.

Assessment of Reliability/Credibility

[108] The trier may accept all, some or none of what a witness says. Of the evidence accepted, the trier may associate different weights to individual parts of the evidence.

[109] A credible reliable witness is a witness who is telling the truth in court.

[110] It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet, with regard to evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying – R. v. W.(R.), 1992 56 (SCC), [1992] S.C.J. No. 56 para 26.

[111] The real test of the truth of the story of a witness is its harmony with the probabilities a practical and informed person would readily recognize as reasonable in the circumstances.

[112] It is part of the ordinary store of human experience that people edit or enhance history for a variety of reasons. Animus, embarrassment or aspiration for enhanced cogency comprise some of those reasons. A judge charged with the responsibility of trying to settle the truth necessarily weighs probabilities. A conclusion as to where the truth lies can be elusive.

[113] In R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214, para 41 Watt J.A. wrote:

Credibility and reliability are different. Credibility has to do with a witness's veracity (sincerity), reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

This case requires that I assess the credibility of five mature adults. Credibility requires a careful assessment, against a standard of proof that is common to young and old alike. But the standard of the "reasonable adult" is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult: R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 at pp. 54-5; R. v. S.(A.) (2002), 2002 44934 (ON CA), 165 C.C.C. (3d) 426 at p. 437 (Ont. C.A.); R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at pp. 134-6.

An assessment of credibility involves evaluation not only of the honesty of the particular witness, but also the reliability of the evidence of the witness. One should not rely on the testimony of a dishonest witness in the absence of some independent corroborative evidence; however, even honest witnesses can be mistaken. It sometimes happens that a witness will be quite honest and sincere, yet his or her evidence may not be reliable due to external factors such as ability to observe, remember, or relate accurately.

[114] When a denial of sexual gratification is punished by physical harm, the sexual integrity of the victim is no less violated than when compliance is secured by force – R. v. Higginbottom, 2001 3989 (ON CA), 2001 O.J. No. 2742 para 13.

Crown Similar Act Application

[115] The Crown applied for an order that the evidence of E.M., S.M.1, C.-A.D. and S.M.2 be considered when assessing the evidence of each complainant. The relevance relates to a pattern of behaviour, accused state of mind, animus, essential narrative, background and context.

[116] Ruling: I am satisfied the evidence of each complainant goes to more than bad personhood. Further, the admissibility of this evidence across counts does not complicate the trial outcome assessment as such evidence is admissible for the pertinent counts and each complainant testified to actually witnessing various events involving the other complainants.

[117] S.M.1, S.M.2 and C.-A.D. witnessed assaultive behaviour directed at E.M.. E.M. witnessed assaultive behaviour against the children.

[118] The extent to which each complainant may have influenced the collective memories of the others is a live aspect of their collective credibility with or without cross-count application of evidence. There is probative value and minimal prejudice. Accordingly, the application is granted.

The Statement Made to Person in Authority March 8, 2016

[119] The trier is required to consider the evidence as a whole in determining whether the Prosecution has proven Mr. J.M.’s guilt on any count beyond reasonable doubt. The weight to be assigned to a confession made by the accused is for the trier. Considerations include the manner in which the statement was made and all the circumstances connected with it being given. It is evidence both for and against the accused. The inculpatory parts are to be considered in light of the denial passages.

Time

[120] On the issue of whether C.-A.D.’s confirmation that she was not victimized after her 19th birthday, namely [...], 1978 makes the timeline an essential element or crucial to the defence, Justice Wilson in R. v. B.(G.), 1990 7308 (SCC), [1990] S.C.J. No. 58 concluded at paragraph 43 after a thorough review of authorities:

43 In my view, the following conclusions can be drawn from the authorities:

1. While time must be specified in an information in order to provide an accused with reasonable information about the charges brought against him and ensure the possibility of a full defence and a fair trial, exact time need not be specified. The individual circumstances of the particular case may, however, be such that greater precision as to time is required, for instance, if there is a paucity of other factual information available with which to identify the transaction.

2. If the time specified in the information is inconsistent with the evidence and time is not an essential element of the offence or crucial to the defence, the variance is not material and the information need not be quashed.

3. If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence.

4. If the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a conviction cannot be sustained.

44 Accordingly, when a Court is faced with circumstances in which the time of the offence cannot be determined with precision or the information conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offence or crucial to the defence. It will only be in cases where this first question is answered affirmatively that the trier of fact must then determine whether the time of the offence has been proven beyond a reasonable doubt. If the answer to the first question is in the negative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown's case is proven beyond a reasonable doubt.

45 …Indeed the date of the offence is not generally an essential element of the offence of sexual assault. It is a crime no matter when it is committed…

Appendix “B” R. v. J.M.

The Statement

[121] “The defence analysis of the interview and Mr. J.M.’s decisions therein overlooks the strength of the tug interest in family reconciliation bears on those who enjoyed family relations lost. In the case at bar, the accused sacrificed his right to silence in the not unreasonable hope that by taking the first step, his family might respond in kind.

[122] The interview occupied 118 pages. The dialogue between D.C. Smirnov and Mr. J.M. through the first 90 pages manifests an obvious operating mind. Mr. J.M. was firmly committed to counsel advice. Just the same, he fretted about isolation from his family. He did not express the view that should he confess and apologize, the charges would evaporate. The conversation context was about the healing process.

[123] Beginning at page 90, the officer read C.-A.D.’s disclosure. After some hesitation, Mr. J.M. said – Well, C.-A.D., everything she said is true.

[124] The dialogue continued in an aware fashion.

[125] At page 92, D.C. Smirnov began reading S.M.2’s disclosure to Mr. J.M.. Mr. J.M. at page 94 said: I want to go ahead with this, but I am afraid if I do, I’m going against what my lawyer said. In the ensuing dialogue, Mr. J.M. expressed that were he to agree with the disclosure, he would be in bad shape when he went to court. Mr. J.M. had the implications firmly in mind during the dialogue. When D.C. Smirnov offered the opportunity to move to E.M. and return to S.M.2 later, he promptly agreed.

[126] D.C. Smirnov then read E.M.’s disclosure to Mr. J.M.. This went on for some time. Mr. J.M.’s initial response was “I don’t know what to do. I know what I should do. I really do. I’m scared of the repercussions I might cause if I do what I want to do.” Mr. J.M. said he was sorry and that a lot of it is true.

[127] D.C. Smirnov then moved to S.M.1’s disclosures. The dialogue interspersed through the disclosure reading was cogent. On page 106 when they discussed an assault, Mr. J.M. said he recalled the incident and discounted the bleeding.

[128] The balance of the interview is consistent with a person imbued with knowledge of what he is saying and that he is saying it to police officers who can use it to his detriment. Mr. J.M. remained cogent to the end. That he sought personal absolution in the family orbit did not extend to a self-induced expectation of resolution of the charges against him in return for acknowledgement and apology.”

[129] Mr. J.M. denied wrongdoing for the first 89 pages of the interview. Beginning at page 90, until conclusion, Mr. J.M. acknowledged the truthfulness of the assertions put to him by the investigating officer.

Appendix C

E.M.

April 29, 1963 – August 9, 1963 – 1st street, – assault – count 1;

January 1, 1964 – September 15, 1967 – Summerstown – 4 assaults – 1 bodily harm, 1 buggery and 1 indecent assault – counts 2, 3, 4, 5, 6, and 7;

June 1, 1967 – December 31, 1994 – L[…] – 3 bodily harm assault, assault - counts 11, 12, 13, and 14;

September 15, 1977 – September 14, 1979 – assault, knowingly utter a threat (Prowler) – count 22;

January 1, 1994 – July 18, 2015 – assault, utter a threat – counts 28 and 29.

S.M.1

June 1, 1967 – September 15, 1980 – L[…] – cause bodily harm assault – ages 3- 16 – count 8;

September 15, 1971 – September 14, 1978 – L[…] assault – ages 7 through 14 – count 10;

September 15, 1975 – September 14, 1977 – 2 assault – ages 11 – 13 – counts 18 and 19;

September 15, 1977 – September 14, 1979 – assault, knowingly utter a threat (Prowler), point a firearm – ages 13 – 15 – counts 21 and 23;

September 15, 1994 – September 14, 1995 – assault with a weapon – fire poker, commit mischief – less than $1K – ages 30 - 31 – counts 26 and 27.

C.-A.D.

June 1, 1967 – September 15, 1980 – cause bodily harm assault – belt – age – 8 – 21 – count 9;

[...], 1978 – August 30, 1979 – assault – age 19 – 20 – C.-A.D. confirmed she was never assaulted after attaining the age of 19 years – count 25.

S.M.2

August 9, 1975 – August 8, 1979 – 2 indecent assaults – cream application and proposition, assault – age 12 – 13. – counts 15, 16 and 17.

COURT FILE NO.: CR-17-36

DATE: 2018/06/22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

J.M.

REASONS FOR JUDGMENT

The Honourable Mr. Justice Rick Leroy

Released: June 22, 2018