COURT FILE NO.: 18-RD-19594
DATE: 2019/09/26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
M.J.L. Accused
Stephen Donoghue, for the Crown
Samantha Robinson and Jason Gilbert, for Mr. M.J.L.
HEARD: September 9-11, 2019
BY COURT ORDER MADE UNDER S. 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY THE PERSON DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANT MAY NOT BE PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER.
REASONS FOR judgment
A. E. London-weinstein j.
[1] Mr. M.J.L. is charged with an aggravated assault and sexual assault in relation to his former partner A.T. He is also charged with assaulting the couple’s infant son, G.T.
[2] The complainant in this case testified, as did a sexual assault nurse. The defence elected to not call any evidence. The issue in this case is whether any of these incidents occurred.
[3] A.T., age 30, testified that she began dating Mr. M.J.L. on April 3, 2015. She described the relationship as “pristine” when they first began dating. The couple moved in together in July of 2016. The relationship deteriorated. Communication was an ongoing problem for the couple.
[4] A.T. alleges that Mr. M.J.L. sexually assaulted her and choked and punched her in January of 2018. She alleges that he also assaulted their son. The couple broke up and Mr. M.J.L. left the house.
Evidence:
[5] At one point, Mr. M.J.L. and A.T. had planned on getting married. However, over time the relationship became rocky.
[6] A.T. testified that she learned she was pregnant with G.T. on December 25, 2016. A.T. testified she felt that Mr. M.J.L. was not sensitive to how she was feeling after the birth of their son. G.T. was born on […], 2017.
[7] She did not think that Mr. M.J.L. was as happy about the birth of their son as she was. The relationship became rockier after G.T.’s birth. Mr. M.J.L. was working as a cart pusher at the Real Canadian Superstore prior to his birth. He later took parental leave to be able to be at home to assist A.T. with caring for the baby.
[8] The relationship continued to deteriorate. Communication remained a problem. The couple planned to marry, but the wedding was cancelled. A new date for the wedding was set. The relationship continued to deteriorate.
[9] A.T. testified that on January 9, 2018, she was getting ready for bed in the evening at around 10 p.m. G.T. slept in a bassinette in the bedroom she shared with Mr. M.J.L..
[10] A.T. said she was wearing pyjamas. She could not recall what Mr. M.J.L. was wearing, or what he was doing at the time.
[11] G.T. was asleep in his bassinette. The door to the master bedroom was open. Mr. M.J.L., according to A.T., got underneath the covers with her. She said he was naked. She did not wish to engage in sexual activities with him. Despite her telling Mr. M.J.L. that she was not interested in sexual activities, A.T. said he began to rub his erect penis against her.
[12] She testified that he took her pyjama bottoms off. She could not recall if he said anything when he is alleged to have taken her bottoms off. A.T. said she did not want her pyjama bottoms taken off.
[13] She indicated that Mr. M.J.L. rubbed his erect penis on her pelvis and chest area for 10 to 15 minutes. He called her a naughty girl, according to A.T. This interaction made. A.T. feel very disgusting and worthless. A.T. testified that she told Mr. M.J.L. to get off of her.
[14] She testified she could not push him off of her and that she was very firm in her tone of voice when she told him to get off. Mr. M.J.L. outweighed her by about 100 pounds. A.T. could not recall anything that Mr. M.J.L. said at the time. He then proceeded to penetrate her, A.T. said and that the penetration felt like knives going in and out of her.
[15] She testified that Mr. M.J.L. did not wear a condom and in her examination-in-chief, she testified that ejaculated inside of her. He then went downstairs to the basement. She showered. The baby was sleeping in the bassinette. When she fell asleep Mr. M.J.L. was in the bed with her.
[16] A.T. said she did not call the police to report what happened as she felt terrified. She testified that the next day, all was calm between the couple. She said she did not consider calling the police the next morning.
[17] On January 11, 2018, the couple argued over whether Mr. M.J.L. would be getting a job at Cash for Trash. A.T. indicated that she asked Mr. M.J.L. for $600 per month when they had discussed marriage. She could not recall who brought up the $600 figure when it was discussed on January 11. She indicated that Mr. M.J.L. said, in an angry tone, that he would give A.T. the amount to which he thought she was entitled. A.T. became upset. She could not recall how Mr. M.J.L. responded to her being upset. She surmised that because he had an angry tone of voice that she would not be getting the amount she felt she should be receiving.
[18] A.T. said that she supported herself on ODSP and always had her own money. She indicated that Mr. M.J.L. barely supported the baby and there was always an argument when she asked for money.
[19] The argument went on until around 2:00 a.m. or 2:45 a.m. in the morning of January 12. A.T. testified that G.T. was in her arms during this time and he was crying and that she put the baby down on the queen size bed in the master bedroom.
[20] A.T. said that Mr. M.J.L. invaded her personal space and called her a “cunt” and a “whore”. He began to punch her in her face. A.T. testified that Mr. M.J.L. drew back his arm and punched her with a closed fist in her face 6 to 9 times. (She said more than five and less than 10).
[21] A.T. could not recall if she said anything when being punched in the face. Once she was able to catch her breath, she said she was going to call the police. She said she told Mr. M.J.L. to go for a walk to calm down. At one point she said she was on the ground and that she was “boot kicked” in the ribs. She could not recall how she got to the ground.
[22] According to A.T., Mr. M.J.L., continued to kick her with the front of his foot to her ribs and her back area. She said she received more six to nine kicks. (She said more than five and less than 10 kicks).
[23] A.T. said that Mr. M.J.L. choked her for a “couple of minutes.” She said that he also used her hair to keep her from breathing and that his two hands were also on the side of her neck while he choked her.
[24] A.T. said she did not pass out at this point. She said she was choked for two to three minutes. A.T. said she would have called the police during the time she was being punched, but her phone got pushed off of the bed when she was trying to protect G.T.
[25] Prior to this happening, A.T. said that Mr. M.J.L. had whipped his cellphone at G.T. A.T. perceived that Mr. M.J.L. was trying to throw the cellphone on the bed. The cellphone collided with G.T. on the right side of his head, leaving a mark. She screamed, “you hit my baby!” The baby was crying hysterically, she said. A.T. said she could not call police because she “started to get beat more” while protecting G.T. This occurred, apparently, before the punching started.
[26] A.T. said the phone was thrown with 8/10 force. She told Mr. M.J.L. to go for a walk and calm down. She barricaded herself in the bedroom when he left. A.T. said that Mr. M.J.L. re-entered the room by pushing aside the dresser. She testified that he was extremely hostile, but she could not recall if he said anything. She told him to leave her and the baby alone.
[27] A.T. said that Mr. M.J.L. began to choke and punch her again. G.T. was laying in the middle of the queen size bed. A.T. said she received more than five and less than 10 punches again. The punches landed on her face and chest. Again, she told him to go for a walk and calm down. She said the force of the punches felt like a 10 out of 10.
[28] A.T. said she somehow ended up in her closet. According to A.T., prior to that, Mr. M.J.L.., picked baby G.T. up off of the bed by his wrists and violently flung him into the crib. A.T. said this happened after she was punched.
[29] A.T. said the baby landed on his back in his crib. The baby was screaming. A.T. said he bounced a bit as he landed. Mr. M.J.L. proceeded, according to A.T., to choke her while she was in the closet. His two hands were on the side of her neck squeezing. The force of the choking felt like a 10 out of 10.
[30] A.T. testified that she stopped breathing and urinated when she lost consciousness, and when she awoke, she did not see Mr. M.J.L.. The baby was screaming in his crib. She had no pyjama bottoms on, but still had her pyjama top on. A.T. said she felt very sore all over her body. She picked up the baby and tried to soothe him. She went to get a bottle for the baby. Mr. M.J.L. had come up the stairs and wanted to talk to her
[31] A.T. testified that he barricaded her in the room. She noticed a filet knife right next to her son’s bottle warmer. A.T. said she thought the knife was put there to butcher her and she did not trust that Mr. M.J.L. would not grab the knife at any second.
[32] A.T. said that eventually Mr. M.J.L. let her out of the room. She was able to go and attend to G.T.
[33] A.T. testified that things died down for the night and that she could not fall asleep until 5 a.m., because she was terrified. Mr. M.J.L. slept in the master bedroom with her and she was afraid that he would choke her or hurt the baby.
[34] A.T. was asked why she did not go the doctor. She responded that on the 15th she was planning to go to the police station. She did not go the police on January 12 because she said she had to get a safety plan together.
[35] On January 12 she called her best friend, of 20 years, J.L. J.L. was a former friend of Mr. M.J.L., according to A.T. A.T. testified that she called J.L. because he knew Mr. M.J.L.’s nature and she had told him what was going on. He had advised A.T. to contact him when she was ready to leave. A.T. planned to leave on January 15 as she knew Mr. M.J.L. would be away with his grandfather collecting scrap metal.
[36] A.T. contacted Mr. M.J.L.’s family at about 1:30 or 2 a.m. to explain what had happened and that she needed to leave Mr. M.J.L. and take her son with her.
[37] J.L. then came to stay with A.T. at her home while Mr. M.J.L. was still living there. On January 15, 2018 as she planned, A.T. left the home. J.L. had the day off. A.T. was able to organize a safety plan. She took baby G.T. with her.
[38] When she attended the police station, she said that photographs of her injuries were taken the same day. She indicated she took photographs of G.T.’s injuries and sent them to the officer in charge.
[39] On January 15, 2018 she attended the Wendy’s restaurant on Carling Avenue. She said she returned to her residence at around 10:45 p.m. to retrieve her belongings, she said. She was going to stay with her mother. J.L. came with her along with his friend R. and R.’s wife.
[40] The five persons attended the residence. A.T. said that she thought Mr. M.J.L. was out, according to what he posted on his Facebook page, but she brought along some people to keep the peace.
[41] A.T. said she knew police were a trigger for Mr. M.J.L. so she was trying to avoid having the police attend.
[42] R. and J.L. went to the door and knocked on the door. Mr. M.J.L., according to A.T., opened the window. He yelled out that he was calling the police. A.T. said that Mr. M.J.L. then got a samurai sword and was waving it in the window. His Pitbull dog was barking viciously at the door.
[43] Four police cruisers attended. A.T. was able to enter the residence and retrieve some of her belongings. She claimed that she noticed a knife in every room when she attended the residence. She said that she confiscated these knives and gave them to the police. She also said that she noticed the samurai sword in the bedroom.
[44] A.T. spent the night in the residence with J.L. Mr. M.J.L. went to stay at his grandfather’s house.
[45] A.T. said she went to the hospital between January 17 and January 19. She said she was passing blood clots the size of toonies. She also said she had bruises around her back and wrist. She said she wanted to ensure she did not have a broken rib. A.T. testified that she may have also been sexually assaulted in the closet when she was passed out after being choked.
[46] I understood A.T. to be saying that if not for the passage of the blood clots she would not have been aware that she may have been sexually assaulted on a second occasion, that being when she was passed out in the closet.
[47] On February 6, A.T. disclosed that she was sexually assaulted. She said she felt that no one would believe her and the incident was highly personal.
[48] A.T. says she deals with night terrors, back spasms, pelvic spasms, and pain in her joints, in her chest and she was diagnosed with asthma the same year, although she does not assert that the onset of asthma was as a result of being kicked in the ribs.
[49] In cross-examination, A.T. indicated that she went to see a lawyer to get advice regarding custody of G.T. She indicated that she attended the lawyer’s office after she went to the police station and that she did not see or call a lawyer before January 15th.
[50] In her January statement to police however, she indicated that she had already contacted a lawyer prior to attending the police station. She admitted that she went to the court house to get information regarding obtaining custody of G.T., and then went to the police station to give her statement.
[51] In cross-examination, Ms. Robinson exposed a number of inconsistencies in the evidence of A.T. I have listed some examples, but this is not an exhaustive list. Some of the inconsistencies are of greater impact than others and I have considered them accordingly.
A.T., in her evidence in chief, said that after the initial incident involving the pushing and punching and kicking, that the cell phone was thrown at G.T. Mr. M.J.L. went downstairs and that she barricaded herself in the bedroom.
However, when it was suggested to her that at the preliminary hearing in this matter, that she did not mention the kicking and punching at this point in the altercation, she said he went downstairs before he kicked or punched her.
A.T. maintained that she did not at any time fight back. She did not grab on to Mr. M.J.L. at any point. She indicated she would not want to be charged by police, so she did not defend herself in any way. She indicated that if she tried to fight back she was sure that Mr. M.J.L. would hurt her or G.T. to an even greater degree.
However, in cross-examination, when she was confronted with her statement of January 15 to police, she admitted that she told police that she had gouged Mr. M.J.L.’s eyes and clawed at his face in self-defence.
A.T. testified that she did not tell Mr. M.J.L. that the wedding was cancelled because the relationship was deteriorating. However, she admitted at the preliminary hearing, that she did advise Mr. M.J.L. that the relationship was coming to an end.
When Ms. Robinson pointed out to her that when she gave her evidence in chief that she said she only lost consciousness once, A.T. said she could not recall what she had testified to in her evidence in chief, on the previous day. She then said that she lost consciousness before she was in the closet and was in and out of consciousness when being punched. This evidence differed from her examination in chief.
A.T. agreed that she testified that G.T. was in the crib before she was choked in the closet. When confronted with her February 6 statement which defence counsel suggested appeared as though she was saying that the baby was thrown after she lost consciousness, A.T. said that what she meant to say was she did not know if G.T. was punched. She had not testified that G.T. was punched by Mr. M.J.L..
A.T. testified that G.T. was in his crib when she woke up. Her memory in cross-examination, was that he was moved on the bed, but she did not know how he was moved. When defence counsel pressed this discrepancy with the witness, A.T. became argumentative and said that she suffered from PTSD and was sorry that her memory was not as clear as “you would like it to be.”
A.T. said that she took G.T. to the Children’s Hospital of Eastern Ontario (CHEO) after the incident and they took x-rays of G.T. and took photos of every single bruise. A.T. said she provided photos to the police, along with the CHEO report. No report from the hospital was introduced into evidence in this case. A.T. insisted that she told the detective that there were x-rays and photos available of G.T.’s injuries from CHEO. I did not place too much weight on this inconsistency, as it is possible that A.T. is telling the truth, and police simply did not follow up on the x-rays and did not turn over the photos to the Crown Attorney. However, in a case where it is alleged that a father threw his son into the crib so hard that the baby bounced on his back, I think it is unlikely that the officer in charge of this case would not have passed this information on to the Crown Attorney if it were provided by A.T. as she indicated.
Despite being punched in the face full force multiple times, there is no sign of injury to the complainant’s face just a couple of days after the alleged incident. Photograph 1 of Exhibit 1 of the photographs reveals no bruising, nor any evidence of injury on the complainant’s face. When A.T. was asked about the lack of bruising, she said that she was wearing make-up to hide the bruising, despite the fact that she was at the police station to have her alleged injuries photographed.
A.T. denied telling Detective Carmichael that she wanted Mr. M.J.L. out of the house. It was an admission in this trial that in her Investigative Action Report, dated January 16, 2018 that Detective Carmichael recorded A.T. saying that she wanted Mr. M.J.L. out of the house. Detective Carmichael had noted that A.T. called her friends to kick Mr. M.J.L. out of the house and Mr. M.J.L. shut the door and would not let them in the house. A.T. was also argumentative, saying that what Detective Carmichael said was hearsay and she could not comment without having the papers in front of her. Ms. Robinson was simply trying to confirm whether A.T. agreed with what Detective Carmichael had recorded in her investigative action report. A.T. then changed her evidence and admitted that she wanted to stay in the residence and that she wanted Mr. M.J.L. out so that she could stay in the house with her child.
In her evidence at trial, A.T. said that Mr. M.J.L. ejaculated inside of her. In her February 6 statement she described something called “pre-come,” which was not ejaculation.
The Evidence of Chantal Riel Stork:
[52] Ms. Riel-Stork is a sexual assault nurse examiner at the Civic Hospital. She met A.T. on January 18, 2018. She observed some bruising on A.T.’s arms. These are apparent in Exhibit 1, along with bruising under her arms. A.T. complained of abdominal pain and tenderness on her right upper chest wall, along with tenderness to her neck. Ms. Riel-Stork is experienced in her field, having worked for 14 years as a sexual assault nurse examiner. She did not note any facial bruising to the face of the complainant and indicated that if the bruising were present, she would have noted it in her file.
Legal Analysis:
[53] The standard of proof in a criminal trial is closer to absolute certainty than probability. I must be sure before convicting an individual. Mr. M.J.L. did not testify, nor call evidence in this case. He is not required to do so, the burden of proof resting with the crown throughout the trial.
[54] I reviewed the whole of the evidence in this case, including the photographs of A.T. and baby G.T. contained in Exhibit 1, the photobook.
[55] A.T.’s evidence was inconsistent. Some inconsistencies were of greater import than others. I found it to be a serious inconsistency that she changed her evidence regarding wanting Mr. M.J.L. out of the house. In my view, this was a troubling inconsistency because it went to the heart of what could be perceived as a motivation for fabricating these allegations. She also gave inconsistent evidence regarding when she sought legal advice to obtain sole custody of G.T. I gave greater weight to this inconsistency because it was related to her desire to have sole custody of her son; a potential motive for fabrication.
[56] Despite the very able submissions of Mr. Donoghue, I was not able to accept that A.T. was telling me the truth about her lack of facial injuries. A.T. testified that the facial injuries were not visible because she was wearing make up at the police station, despite the fact that the purpose of having photographs was to document her injuries. I concluded that A.T. gave that explanation, although it was illogical, to explain a lack of evidence of facial injury which would be consistent with the beating to her face which she said she sustained.
[57] I find support in this view, from the evidence of Ms. Riel-Stork, who did not observe any facial injuries to A.T. and testified that she would have noted them if they had been observable. She also said that if A.T. was wearing make-up, she would have asked her to remove it so her injuries could be documented. While some bruising on her arms were observed, I am not satisfied that they were inflicted in the manner described by A.T.
[58] I accepted that A.T. may not have been able to remember the sequence of events with complete accuracy. I did not attach too much weight to her inability to remember the exact sequence of events. However, it was troubling that she could not remember her evidence given the day before. Depending on the source of the memory problem, this is either a credibility issue, or a reliability issue. In either case, however, it caused me concern regarding placing reliance on the evidence of A.T.
[59] Justice Cory observed in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 that the assessment of the credibility of a witness is more of an art than a science. In R. v. Marquard, the Supreme Court of Canada held:
Credibility must always be the product of the judge’s or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter…Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. R. v. Marquard, (1993) 1993 CanLII 37 (SCC), 85 C.C.C. (3d) 193 (S.C.C.)
In this case, I had concerns that the complainant’s numerous inconsistencies were related to her desire to maintain sole custody of G.T. I was also concerned that the complainant wanted to keep the residence and have Mr. M.J.L. leave. The fact that the complainant gave inconsistent evidence regarding when she saw a family lawyer, and whether she wanted Mr. M.J.L. out of the house caused me to have credibility concerns about the evidence of the witness.
[60] A.T. testified she could not remember evidence given the day previously. This caused me serious concerns in regard to her credibility, or her reliability, depending on whether she was lying to avoid being contradicted on prior testimony, or whether she was telling the truth and could honestly not recall what she testified to on a previous day. I also found that A.T. lied about wearing makeup to the police station to hide bruises that she was seeking to have photographed.
[61] As indicated, there were both minor and major inconsistencies in the evidence of A.T. Some were more serious in nature than others.
[62] Inconsistencies on minor or 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 trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated a carelessness with the truth. R. v. G. (M), (1994) 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.). Given the number of inconsistencies, and the nature of the ones I have particularized--specifically whether she wanted to kick Mr. M.J.L. out, whether her bruises were hidden with makeup and the timing of her visit to the lawyer--it would be unsafe to rely on the evidence of A.T.
[64] I accept Mr. Donoghue’s submission regarding the timing of the sexual assault complaint. A sexual assault complainant may report a sexual assault at any time, for many reasons. A delay in reporting a sexual assault, standing alone, should never be the subject of an adverse inference. R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. However, in this case, when I considered the whole of the evidence, I was not satisfied that any sexual assault ever occurred.
[63] I did not rely on the timing of A.T.’s complaint regarding her allegation of sexual assault in arriving at the conclusion. I have found that I have a reasonable doubt regarding the guilt of Mr. M.J.L.. He is acquitted of all counts on the indictment.
A.E. London-Weinstein J.
Released: September 26, 2019
COURT FILE NO.: 18-RD-19594
DATE: 2019/09/26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen Respondent
– and –
M.J.L. Applicant
REASONS FOR judgment
A.E. London-Weinstein J.
Released: September 26, 2019