COURT FILE NO.: 8311/20

DATE: 2021-10-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Woods, Counsel for the Crown

• and -

TERRY BELLEAU

A. Hagan, Counsel for the Accused

Accused

HEARD: September 14-17, 29, 2021

VARPIO J.

REASONS FOR JUDGMENT

[1] The accused, Mr. Belleau, and the complainant, Ms. Belleau, were in a seventeen-year relationship that spanned from 2002 to 2019. The couple share three children and, in October 2019, they separated when Ms. Belleau learned that the accused was having an affair.

[2] The pair have been in court ever since.

[3] In November of 2019, the police charged Ms. Belleau with simple assault as against Mr. Belleau. These charges were ultimately resolved by way of peace bond.

[4] In December 2019, Ms. Belleau attended the police station and gave a statement which in turn led to the charges before the court. The charges before the court are as follows:

1. That Terry Stephen Charles Belleau between the 1^st^ day of December in the year 2002 and the 31^st^ day of August in the year 2005 at the First Nation Territory of Garden River, ON in the said Region, did without lawful authority confine Jessica Belleau, contrary to section 279(2) of the Criminal Code;

2. That Terry Stephen Charles Belleau between the 1^st^ day of January in the year 2003 and the 14^th^ day of September in the year 2019 at the First Nation Territory of Garden River, ON in the said Region, did commit an assault on Jessica Belleau, contrary to section 266 of the Criminal Code;

3. That Terry Stephen Charles Belleau between the 1^st^ day of June in the year 2008 and the 18^th^ day of July in the year 2012 at the First Nation Territory of Garden River, ON in the said Region, did by word of mouth knowingly utter a threat to Jessica Belleau to cause death to Jessica Belleau, contrary to section 264.1(1)(a) of the Criminal Code;

4. That Terry Stephen Charles Belleau between the 1^st^ day of February in the year 2010 and the 28^th^ day of February in the year 2010 at the First Nation Territory of Garden River, ON in the said Region, did in committing an assault upon Jessica Belleau use a weapon to wit: hot chocolate, contrary to section 267(a) of the Criminal Code;

5. That Terry Stephen Charles Belleau between the 1^st^ day of January in the year 2010 and the 31^st^ day of December in the year 2010 at the First Nation Territory of Garden River, ON in the said Region, did, without lawful excuse, point a firearm, to wit: a handgun at Jessica Belleau, contrary to section 87 of the Criminal Code;

6. That Terry Stephen Charles Belleau between the 1^st^ day of June in the year 2010 and the 31^st^ day of August in the year 2010 at the First Nation Territory of Garden River in the said Region, did in committing an assault upon Jessica Belleau use a weapon, to wit: rocks contrary to section 267(a) of the Criminal Code;

7. That Terry Stephen Charles Belleau on or about the 3^rd^ day of September in the year 2015 at the First Nation Territory of Garden River, ON in the said Region, did, without lawful excuse, point a firearm to wit: a handgun at Jessica Belleau, contrary to section 87 of the Criminal Code;

8. That Terry Stephen Charles Belleau on or about the 17^th^ day of November in the year 2011 at the First Nation Territory of Garden River, ON in the said Region, did commit mischief by willfully damaging without legal justification or excuse and without colour of right property, to wit: the cellphone of Jessica Belleau the value of which did not exceed five thousand dollars, contrary to section 430(4) of the Criminal Code;

9. That Terry Stephen Charles Belleau between the 1^st^ day of June in the year 2017 and the 30^th^ day of June in the year 2017 at the First Nation Territory of Garden River, ON in the said Region, did in committing an assault upon Jessica Belleau use a weapon, to wit: a beer can, contrary to section 267(a) of the Criminal Code.

[5] The Crown called three witnesses, including the complainant. The accused called no evidence. Upon review of the entirety of the evidence, I am satisfied beyond a reasonable doubt that during the relationship, Mr. Belleau engaged in abusive conduct towards Ms. Belleau. On the other hand, the nature of Ms. Belleau’s evidence is such that she appeared to conflate and confuse less significant instances of abuse.

[6] Therefore, as will be seen in these reasons, Mr. Belleau will be found guilty of some charges before the court and not guilty of others.

THE EVIDENCE

The Complainant’s Examination in-Chief

Background

[7] The complainant testified that she is 34 years old and graduated from nursing in 2017. She is employed with a home health service and prior to that, she worked as a registered nurse with the Sault Area Hospital for four years.

[8] The complainant testified that she and the accused have three boys aged 18, 15 and 10. The complainant testified that she was 15 years old when she met the accused through a group of mutual friends. Although the pair have the same last name, they were never married and are not related. The pair started dating on September 19, 2002. The pair began living together and, when they had their eldest child, they moved back and forth between her parents and his parents. The accused’s parents operated a gas station from their residence.

[9] When the eldest son was two-and-a-half years old, the couple moved into a house on White Birch Drive where they stayed for approximately two years. At this time, the accused worked “under the table” for his parents.

[10] The accused’s parents purchased a house which was located near their residence. The couple moved into that house when their middle son was a year-and-a-half old, in approximately 2003. They resided in that second house for the duration of the relationship.

[11] The complainant assisted his parents with their business by working the occasional shift, helping out at the store and doing other such things.

[12] On October 17, 2019, the complainant found out that the accused had been having an affair. The complainant asked the accused about the affair and the accused would neither confirm nor deny his actions. The complainant told the accused to pack up and leave but he did not leave the residence. Accordingly, the complainant packed six garbage bags of the accused’s belongings.

[13] The complainant testified that she has no criminal record but that she was charged when the accused went to police alleging that the complainant had threatened and assaulted him. The complainant entered into a peace bond in March or April of 2021.

[14] With respect to her recitation of events, the complainant testified in a flowing fashion whereby she would recount an event in its ostensible entirety and the Crown would often be required to ask the complainant about significant details that the complainant failed to mention. This style of examination made for lengthy evidence. The complainant testified for two-and-a-half days. The complainant would become upset, would cry and would need the occasional break. The Crown also called the evidence in a non-chronological order, which was confusing as it became difficult to understand which pieces of evidence related to which counts on the indictment. The complainant also testified at length about allegations that may not have been reflected in the indictment. This phenomenon added to the general confusion.

The First Assault

[15] The first episode that the complainant could recall occurred in 2002 when the accused would not let her leave the accused’s parents’ house. The couple were having a disagreement and the complainant told the accused that she wished to walk home alone. The accused would not let her leave. The complainant testified that the disagreement was probably about the accused’s drug use. The complainant testified that the couple was sitting in the living room. She wanted to leave and the accused refused to let her go. He stood in the doorway stating that she could not leave because it was cold outside. The accused stood in the doorway for twenty minutes or so while he had a cigarette at the entrance. The couple argued back and forth as to whether the complainant could leave the residence. There was no physical contact between the pair, although the complainant walked into the accused’s chest telling the accused to let her leave. The complainant was eventually able to leave the residence when the accused went for a cigarette. The accused followed the complainant in his parents’ vehicle. The complainant testified that this incident lasted for about an hour.

A Pattern of Behaviour

[16] The complainant also testified that, when the couple lived with the accused’s parents, the accused hit her on a couple of occasions after he went to the casino and returned home intoxicated, having lost his money. She testified that she was hit several times, mostly behind closed doors, usually in places other than the face because others could see markings on the face. The accused would hit her with his hands, using both his open hand and his fists. The complainant testified that the accused would often push the complainant over a bed while screaming at her.

[17] The abuse continued after the couple moved into their first home. The complainant testified that when the accused was good, he was good. When the accused was bad, however, the accused was bad. The physical assaults continued at this residence as did the accused’s attempts to prevent the complainant from leaving the residence.

The Incident Where the Complainant was Pushed Out of the Car

[18] The complainant testified that in 2015, the couple had drinks at a friend’s residence. The complainant corrected herself subsequently in examination-in-chief and testified that the date of this incident was 2005, not 2015.

[19] The accused’s parents had taken the couples’ son for the evening. The friend’s residence was around the corner from the couple’s first house. A number of people attended at this residence to have drinks. The complainant approached the entrance of the friend’s residence at the end of the evening and told the accused that she wished to go home. The accused was intoxicated, having drunk alcohol most of the day. He was also using drugs, specifically oil. He could not drive as a result. The couple had an argument about whether the accused could drive home. He would not give the complainant the car keys. The complainant testified that the accused slammed the complainant up against a wall. He used his arm on her chest. The accused let go because the complainant swung at him as she was pinned up against the wall. The complainant testified that she most likely struck the accused in self-defence. The accused then opened the door, walked out of the house and the complainant followed him to their car. The couple entered the car and argued. She tried to take the keys from the ignition but could not because the car was in park. From this statement, I infer that the accused was in the driver’s seat while the complainant was in the passenger’s seat.

[20] The couple drove directly home from the friend’s house to their residence. The accused then pushed the complainant out of the vehicle as her seatbelt was unfastened. The accused said that next time, the complainant would end up in the trunk. The accused left the situation and went drinking all night drinking at an afterhours bar. He returned home. The accused would not let the complainant take the car to retrieve their son from the accused’s parents’ house. The accused finally passed out on the couch.

[21] The complainant testified that the car would not start because the battery was disconnected. The complainant testified that it was a relatively common occurrence for the accused to disconnect the battery or otherwise render the car inoperable. The complainant’s uncle came and made the car operational. The complainant went to the accused’s parents’ house and got her child. She returned home and the day continued as if nothing had happened. The complainant testified that when the accused is sober, he is a different person.

The Final Incidents at the First House

[22] The last criminal incident at the couples’ first residence was a situation where the accused held the complainant against the washer and dryer and made it clear that the complainant was not leaving the residence. The residence was a single level home, and the laundry room also had a hot water tank and a hatch. The complainant indicated that she was probably sitting on the couch watching television when she decided to leave the house. The accused would not let her leave because he was intoxicated. The eldest child was sleeping. The complainant determined that they only had one child at the time since the middle child was born in the spring of 2006.

[23] Of note, the complainant worked from the fall of 2005 until the spring of 2006 when their second child was born. During that time, the accused did not want the complainant to work and, on several occasions, the complainant could not go to work because her car was disabled. The complainant believes that it was the accused who disabled the car. This occurred once or twice a week. At times, the battery would be removed from the car. Typically, the complainant and the accused would argue and the complainant would call her uncle to assist with getting the car started.

The Deck Incident

[24] The couple moved into their second house around 2008. The complainant was out for a “girls’ night out” during this time. One of the complainant’s girlfriends was driving while another girlfriend was drinking with the complainant. At the end of the evening, the three women drove to the complainant’s house. The complainant testified that one of the girlfriends wanted to have more drinks, and the complainant told the girlfriend that the complainant would fetch some from the house. The complainant went to open the door and the accused would not let her in the house. She pushed her way through the door while the accused yelled at her. The complainant testified that the accused slammed the complainant up against the door. The complainant grabbed a couple of drinks out of the refrigerator. The girlfriends were now standing on the deck when the accused pushed the complainant up against the doorframe of the house. The couple ended up on the deck and a lot of screaming occurred. The girlfriends reassured the complainant that everything would be okay. They did not want to leave the complainant but the complainant assured her girlfriends that she was okay to be left at home. The friends, Ms. Amaya Gabcan and Ms. Stacy Zach, then left in the car. Ms. Gabcan was the driver. As the girlfriends were leaving, the accused yelled at them stating that he would call the police because the girlfriends were drinking and driving. The complainant testified that she ended up with bruising on her back and that at some point in the altercation, she ended up off her feet on the deck.

[25] The complainant testified that she would get bruises from the accused’s physical altercations and would seldom wear T-shirts or shorts because of same. She would wear hoodies and long pants instead. She did not document the bruising.

The Chained Door Incident

[26] The complainant described another incident that occurred when the complainant and the accused were living in the second house. The complainant testified that she attended a fundraiser in Garden River. Her aunt drove her home. When the car pulled into the driveway, the house was chained shut with a chain that was interwoven around the door handles. The complainant was initially unable to unwrap the chain. The door also had an interior chain which was high up so as to prevent her son from exiting the house.

[27] Her eldest son was awake and the complainant told him to come to the door. The complainant told the eldest son to get a chair. He was able to get a chair and open the door. The complainant entered the house and put the son to bed. At this time, the accused was pacing and he threatened to burn down the house, along with the complainant and children. The complainant testified that she believes that the accused likely got physical that evening but that she cannot be sure. The complainant told the accused that she was leaving and the accused stated sarcastically, “Oh, you’re going out again”. The accused then left the house and the complainant called an aunt and told her what had happened. The complainant then called the accused’s parents. The accused’s parents, the aunt and the accused’s cousins attended at the house and were trying to determine a way to help the accused without police involvement. Everyone left the house around four or five in the morning. The accused came back to the house mid-morning. The couple did not discuss anything about the incident.

[28] The complainant subsequently had her memory refreshed by the Crown regarding this incident. She was shown a copy of a statement that she had written prior to attending the police station in December 2019. She then adopted the statement and testified that the accused had thrown the complainant up against the patio French doors during the course of this incident. Her sons were sleeping in their room when the pushing happened. The complainant ended up with a goose egg as a result of the push.

[29] The complainant then described another incident where she had gone out the previous night and was doing dishes. The accused began calling her names and taunting her. He pushed her up against the kitchen cupboards. The complainant had a baking sheet in her hands and she hit the accused with it. The accused’s push left bruises upon the complainant and she testified that she believes that her strike with the baking sheet left a bruise on the side of the accused’s face.

The Hot Chocolate Incident

[30] In another occurrence, the complainant went into town and returned from Tim Horton’s with a hot chocolate for the accused. He was agitated, got angry and started yelling. He threw the hot chocolate at the complainant and the liquid splashed on her clothes as well as her face. He was angry and yelled at her. He threw the cup, the lid and its contents. The hot chocolate splashed across the wall.

The First Firearm Incident

[31] The complainant testified that the accused owned several firearms. They all fit in a green cabinet in the laundry room. The house had been renovated three times and during the last renovation the gun cabinet was moved downstairs. The accused got his firearms license in approximately January of 2010. The accused purchased a number of guns but never hunted. He purchased a handgun for himself. He and the complainant picked it up on January 26, which is the accused’s father’s birthday. The complainant testified that she believes the year was 2010. They attended at Perry’s[^1] and filled out the RCMP paperwork that enabled the accused to transport the handgun. The complainant testified that she believed that the accused purchased a 9 mm Smith & Wesson.

[32] The accused always stored the handgun in a black box. The complainant testified that she was fairly certain that the handgun was all black. The accused bought a couple of accessories for the gun including a small item that attaches to the top of the gun like a light or a laser. The accused cleaned the gun all the time and took good care of it. He kept the gun in the safe and locked it up.

[33] In the summer of 2010, the complainant testified that she attended a fundraiser for the accused’s cousin who was going away to school in Sudbury. The family attended a paternal uncle’s house for a barbeque. At this time, the complainant was pregnant with her youngest child although no one knew that she was pregnant. The event went late into the night and the accused came over on his bicycle in the mid-evening. By 11 p.m., the accused was intoxicated as he had consumed several beers and had smoked a lot of drugs. The accused was with his family and having a good time. He typically did not engage in such fun times. The complainant thought it was “nice” to see the accused interact with his family in this way.

[34] The complainant told the accused that it was time to drive home in their SUV. The accused would not get in the car because he did not want to leave his bicycle. The accused stated that he would follow the complainant home. They were a five or ten-minute walk across the highway from their house. The pair left the cousin’s house with the accused on his bicycle and the complainant driving the SUV. The accused kept trying to swerve to hit the SUV so the complainant ultimately “backed off”. They approached a corner and the accused fell off his bicycle and smashed his head. The complainant pulled over to see if the accused was okay and the accused yelled at the complainant and accused her of trying to hit him with the SUV. He punched her on the side of the head. She drove back to the residence.

[35] The accused arrived home five or ten minutes later. He fell in the driveway. The complainant went to the accused to see if he was okay and the accused began throwing rocks at the complainant. He hit her several times. She went inside the house while the accused went to the garage to keep drinking. He came inside the house several times. She told him to go to bed. The complainant went downstairs to the laundry room. By that point, she believed that the accused was downstairs.

[36] The complainant testified that she walked downstairs to see what the accused was doing. He came out of the laundry room and held her tight. He was pointing his gun at her chin. She said nothing, keeping her mouth shut. She testified that she remembered the accused having cuts on his face. She told the accused to not do anything stupid. The accused let go and walked back into the laundry room. The complainant went into her bedroom. She hoped that nothing was going to happen to her that night. She did not know what the accused did with the gun at that time.

[37] The next day, the complainant called one of the police officers that was helping the family and she spoke with him. She told the police officer that something was wrong, that the accused “was not himself”. The police officer arrived at the house and the officer asked if the complainant was alright. She indicated she was fine and that the accused had fallen off his bicycle. They went to see the accused in the garage. The police officer came back into the house to check on the complainant. The police officer then left. The accused entered the house about an hour later.

[38] The Crown asked for further detail about the gun incident and the complainant testified that when the accused pointed the gun, he was standing at the bottom of the stairs, outside the laundry room door. She did not know he had the gun in his hand when he began holding her. Her face was in his chest because he is much taller than she is. She felt the gun on her chest as he had it in one hand while he grabbed her with the other arm. He held her and said a few things to her, but she could not recall the specifics of what he stated. He made no mention of the gun which was in front of her chest, pointed up towards her chin. He held her tight and she could feel the gun against her chin. It was cold and she could feel the pressure. She finally saw the gun when he pulled away from her. It was in his right hand. He was holding it like a normal person would with the finger on the trigger and the stock in the palm of his hand. He turned around and went into the laundry room while she went upstairs. The accused held the complainant for several minutes and the complainant testified that it felt like forever. She thought her life was going to end. The accused only owned one handgun, and the handgun she saw that night was the handgun that the accused had purchased. She went into her bedroom and hoped for the best.

[39] The Crown also asked for more information about how the accused hit the complainant after he fell off the bicycle. The complainant was in her SUV and the accused was biking, trying to hit her vehicle. They turned a corner before the train tracks and he fell off his bicycle. The complainant testified that one could see the couples’ residence from the tracks. The accused hit his face fairly hard on the ground when he fell. The complainant immediately put the SUV in park and went to check on the accused. He accused the complainant of trying to hit him with the vehicle and she denied that she would ever do such a thing. She was tending to him when he hit her with a closed fist on the side of her head. She had a large goose egg as a result of the strike and also suffered bruising.

[40] With respect to the rock throwing in the driveway, the complainant testified that the couple had a stone driveway at the time. Four or five of the throws struck the complainant as she stood ten feet or so from the accused. The accused was standing by a sand cherry tree which was located at the front of their deck. The complainant is fairly certain that one of the neighbours called the police because the accused was throwing stones at a container that sits across the driveway.

[41] The officer that came the next day was Officer Lesage who had worked with the couple by trying to mediate their disputes, amongst other things. The complainant did not give a statement to the officer. The officer subsequently became a support system for the couples’ eldest son who ended up having trouble with addiction.

[42] The complainant testified that she was pregnant with her third son when this incident occurred, so she believes that the incident would have occurred in or around August of 2010.

The Second Firearm Incident

[43] The complainant testified that she was helping the accused’s mother and the accused’s niece throw a fundraiser luncheon for the accused’s sick uncle. The day before the luncheon, the complainant cooked pasta sauce and meatballs throughout the day and night. The accused drank all night and was angry at the complainant for all the effort she was putting into helping others. At this point, the complainant was at her kitchen sink, which had a window directly in front of it. The accused went to get meatballs because it was time to put them into the sauce. The accused returned with the wrong bag which contained incorrect meatballs. The accused left the kitchen.

[44] As she was standing at the kitchen sink, the accused returned to the kitchen and said, “Hi”. The complainant could feel something at the back of her neck. She looked in the kitchen window and could see the accused standing with a gun pointed to the back of her neck. She stood and did not move. He said some things, but the complainant could not remember what was said. The accused held the gun at her neck for a couple of seconds then walked away. She finished what she had to do and laughed. It was around 3:00 a.m. and she called her niece six times or so. The niece did not answer the phone and so the complainant went to bed.

[45] The next day, the pair attended the fundraiser and acted as though nothing had happened. The complainant saw the niece who asked about the phone calls and the complainant stated that the accused was simply acting up.

[46] The complainant testified that her kitchen window was a large window, as wide as her double sink. It was a single-paned window with no divider. It had a crank.

[47] The fundraiser occurred in the spring or summer of 2012 or 2013. The complainant remembers the time of year because there was no snow on the ground. The complainant gave this evidence on the first day of trial. On the second day of trial, she specified that the fundraiser occurred in 2015 but was not sure of the time of year. The complainant was then shown a document that she had written. The document indicated that the fundraiser occurred on September 3, 2015 and the complainant adopted that date as the date of the incident.

[48] The Crown asked for more detail about the incident and the complainant stated that the incident occurred as the complainant was cleaning up. The accused came out of the basement and the complainant was getting ready to “call it a night”. She realized that the accused had a gun when it touched the back of her neck. When she looked in the window, she could see the gun’s reflection. At this point in the testimony, the complainant’s voice caught and she hesitated. The complainant and the accused were standing at such an angle that the complainant could see the reflection of the gun in the window. He held the gun at her neck for thirty seconds or so. The complainant remembers the pair had a conversation at this point and she testified that she assumes that the accused was denigrating her while she was trying to “talk him down”. The children were in their bedrooms. The complainant testified that she has no idea if the gun was loaded.

[49] The complainant said nothing to the accused afterwards about the incident because she had “learned to keep [her] mouth shut”.

The Gun

[50] The complainant was only aware of one handgun ever being in the house, which was the Smith and Wesson that was previously described. The complainant had handled the gun. The accused would take the gun out of the case and let the complainant handle same. The complainant never took the gun out herself. She testified that she handled the gun a total of three or four times.

[51] She fired the gun when the pair went into the bush and did target practice. They shot target practice on two occasions. As a result, she testified that the gun was operable.

[52] Another time, the accused showed the complainant the gun while the pair were in the house, although she did not fire same at that time.

[53] The Crown showed the complainant a handgun inside a case. The complainant identified that the gun was the one that belonged to the accused.[^2] The complainant also identified the gun as the one that was pointed at her on two separate occasions.

The Concert

[54] In 2010, the complainant was pregnant and, just prior to going on a family vacation to Florida, the couple went to Detroit to see an Eminem concert at Comerica Park. The couple went to the concert with a niece and the niece’s then-boyfriend. The accused drank heavily at the concert and went missing. The trio found the accused and they exited the stadium after the show. They were going down an exit ramp at the stadium when the accused decided to jump from one level down to another level. He landed on his feet and fell to his side. He did not spill his beer.

[55] The accused wanted to go party with a group of men. The complainant and the niece coaxed the accused into a cab and they arrived at their hotel where people were partying in the hallway. The accused wanted to party but the complainant and the niece got the accused into his hotel room. The accused was angry. When it was just the couple in the hotel room, the accused attacked the complainant. He slammed her up against a bathroom door. She blocked a punch and he ran at her. She ran towards the door entrance and he fell between the bathtub and the toilet. He hit his head and he blamed the complainant for his fall. The complainant tried calling the niece’s room but she did not answer. The accused finally passed out, half on the bed, half on the floor. The complainant flipped the accused over on the bed where he went to sleep.

[56] The next morning, the complainant testified that the accused woke up and his leg was not working. He did not remember why his leg did not work. The couple were getting ready to drive home and were debating taking the accused to the Windsor hospital for treatment. They did not go to the hospital because the accused did not like hospitals. The niece’s boyfriend grabbed a trolly and the accused rode the trolly down to the truck. The four then drove home.

[57] The Crown had the complainant revisit this episode. The complainant testified that the accused threw punches in the entrance of the hotel room. The room was small with a king-sized bed. It had a long dresser with a television. There was a bathroom close to the entrance.

[58] The accused pushed the complainant at the entrance. He ran/stumbled at her. He pushed her with two hands against the door and he tried to swing at her. She blocked it with her left arm. She pushed him out of the way and he stumbled into the bathroom. He landed in the small area between the toilet and the bathtub. As a result of the push, the complainant’s head bounced against the door.

[59] Given the date of the Florida trip, the complainant believes that the concert occurred on September 1 or 2, 2010.

The Complainant Leaves the Residence

[60] The complainant left the residence on two occasions. The couple only had two children at the time she left and the complainant testified that the accused’s drug and alcohol usage had become too much so she left the house to stay with her mother. The accused continued to render the complainant’s car inoperable during this time.

The Cell Phone

[61] The complainant testified that she worked at Silver Creek golf course between May 2011 and February 2012. The accused did not want her to work at the course and there were several incidents that occurred during that time. The accused believed that the complainant was sleeping with one of the bartenders at the course and he claimed that he would shoot the bartender. When he made this claim, he put his hand in the shape of a gun.

[62] That summer, the complainant was working a night shift when the accused came to the course. The pair had an argument and the accused took the complainant’s Blackberry cellular phone and smashed it so that she could not call anyone. After a day or two, the accused became remorseful and told the complainant that he would replace the cell phone, which he never did.

The Ojibway Park Incident

[63] The complainant testified that in either the summer of 2011 or 2012, the accused and the complainant attended the accused’s father’s trailer where the accused’s father hosted a Canada Day family barbeque. The barbeque included a fireworks display. A number of family members and others came to the event.

[64] The accused was drinking most of the day. Everyone had gone home by late night while the accused kept drinking with Mr. Rob and Ms. Robyn Eschcott, who were the members of the complainant’s uncle’s family. The complainant was not particularly close with the Eschcotts. The Eschcotts were former U.S. Marines. The three were outside when the accused entered the trailer and demanded his keys, saying that he would take everyone home. The complainant was in the trailer and she gave the accused the keys despite the latter’s intoxication. She returned to bed when her cellphone rang. The number display indicated “Ojibway Park”. This told the complainant that someone was calling her phone from a nearby landline. The accused was on the phone and told the complainant that the Eschcotts were going to kill him.

[65] The complainant got in her vehicle and found the accused’s truck at the Y section of the park that divides into day and night camping sites. The accused and the Eschcotts were standing at the accused’s truck. The accused said that the complainant had stolen the accused’s keys. This in turn led to yelling and arguing. The complainant told the accused not to worry, that they would find the keys later. At this point, the accused grabbed the complainant by her ponytail and started smashing her against the truck. The Eshcotts intervened and put the accused to the ground. Mr. Rob Eschcott was smashing the accused’s face into the ground as the complainant yelled at Mr. Eschcott to stop. The beating continued. The complainant put her foot on Mr. Eschcott’s head and pushed it against the truck’s tire. She told Mr. Eschcott to stop. At that point, the complainant testified that the accused looked lifeless. She tended to the accused. The accused opened his eyes and swung at the complainant. The complainant testified that she was trying to ensure that the Eschcotts did not kill the accused and the accused responded by trying to punch the complainant. The complainant noticed that the Eschcotts had left. The accused refused to get into the complainant’s vehicle. The accused stood up. The complainant located the accused’s keys on the hood of his truck. The complainant gave the accused his keys and she returned to the trailer. She collected the children, put them in her vehicle and she left the trailer park. She called her parents’ house but got no answer. She ultimately stayed at her uncle’s residence.

[66] The next day, she had no contact with the accused but the accused’s mother called and asked about what had happened. The complainant indicated that she did not really know what had happened. The accused’s mother indicated that the Eschcotts “tried to kill my boy”. The complainant did not “have the guts” to explain to the accused’s mother what had actually happened. The complainant did not see the accused for a week-and-a-half. The accused stayed at the trailer for several weeks while his bruising healed. The accused would come and see his children during that period and would then return to the trailer.

[67] The complainant testified that when the accused grabbed her ponytail, he smashed her head against the truck two or three times. The complainant testified that she ended up with goose eggs but she did not know if they were the result of the smashing or punching. The accused punched the complainant with his left hand and struck her on the right side of her head.

[68] The complainant could not recall the year this incident took place.

The Stag and Doe

[69] In 2013, the complainant testified that she attended a stag and doe at the community centre in Garden River. The complainant’s aunt drove the complainant, the accused, the complainant’s girlfriend as well as the latter’s boyfriend to the event.

[70] The group had dinner and drinks. The complainant helped work at the stag and doe. The accused was drinking with his uncle. The complainant believed that the accused was having a good time. The accused’s mother told the complainant that the mother was concerned that the accused was drinking excessively. The accused later left the event. The complainant testified that the accused might have left with his mother.

[71] The complainant stayed until the end of the night and when she returned home, the front door of her home was kicked in and the house was trashed. The complainant stayed with the aunt that evening.

[72] The complainant got a text from a friend stating that the friend had to call the police about the accused. The accused had arrived at the friend’s house in a highly intoxicated state. The friend told the complainant that it took several officers to arrest the accused and that the accused spent the night in jail.

[73] The next morning, the accused called the complainant and yelled at her, stating that the accused’s sister would not give the accused his wallet or cigarettes. The complainant retrieved the accused’s belongings from the sister. The accused returned home and locked himself inside the house for a few days, refusing to speak with anyone. The complainant and the children had to stay elsewhere. The accused would not give the children their clothing or their backpacks. The complainant’s friend, the accused’s mother and the complainant were able to get some outfits for the children to allow the children to go to school. A few days later, the accused allowed the complainant to return to the house.

[74] The Crown then had the complainant revisit the night of the stag and doe. The complainant testified that while the accused was drinking on the deck of the residence, the accused claimed to have located the family’s stolen laptops. Subsequently, the accused spat beer at the complainant.

The Beer Can Assault

[75] On September 14, 2019, the couple had a party. Her son went out with his friends and the complainant’s two friends came over to sit by a campfire. The accused and the male friend drank a considerable amount of alcohol. At one point, the accused got in his truck, spun the tires in the driveway and drove to the friend’s house to get more alcohol. The accused returned home and the group continued drinking until the friends left.

[76] The complainant testified that the couple were inside the house and the accused kept stating that he did not deserve the complainant. He was getting more and more angry when he took a beer can and crushed it on the left side of the complainant’s head. She began crying. He continued stating that he was not good enough for her, all the while getting more and more angry.

[77] The complainant left the situation and went to her room. She cleaned her clothes, rinsed out her hair and went to bed. The accused entered and left the bedroom on a few occasions. The complainant tried to ignore him and the accused finally passed out downstairs on the couch.

[78] The couple woke up the next day but said nothing about the incident.

[79] The Crown then asked the complainant about where the beer can smash occurred. The complainant testified that it happened in the kitchen. The accused threatened the complainant and also told the complainant that she deserved better. He would then tell the complainant that he loved her.

[80] The accused told the complainant that he would cut her up into pieces and throw her into the garbage can. The complainant testified that the accused was like Jekyll and Hyde: fine one minute, not fine the next.

[81] Over the course of the relationship, the accused hit the complainant various times and would push her into counters in the kitchen, while screaming and yelling at her.

[82] On the night in question, the beer can was half full when the accused crushed it on the complainant’s head. The complainant testified that she had been stuck by beer cans several times during the course of the relationship, which is why she bought beer cans as opposed to bottles.

[83] The complainant also described the fact that the couple’s eldest child was addicted to narcotics and the complainant testified that this addiction put pressure on the relationship.

The August Long Weekend 2019 Incident

[84] The complainant described an incident on the August 2019 long weekend whereby the couple was sitting on the deck at camp. The accused kept stating that the complainant was too good for him while the complainant told the accused that she chose to have the accused in her life. No one else was present. The accused stood up and poured beer over the complainant’s head.

The Letter

[85] The complainant testified that in 2011 she and the accused attended counselling to try to work on their relationship. The counsellor asked the couple to write letters to each other. The complainant testified that she found the accused’s letter this past year as she was going through some things after she had moved (the “Letter”). The complainant testified that she was working at the golf course when she received the Letter.

[86] The Letter was filed as an exhibit. It stated:

… your job does worry me and I’m scared to lose you to another guy or scared you’ll get hurt… And I will get you a new phone asap. Hell I might get 2 for us. It was my falt [sic] you don’t have to mush it in that I broke it [sic]. Just ask me to do somethings for you and the kids don’t demand it. If you probably ask me to cut my fingers of [sic] I probably would if you ask that mice [sic] sometimes you do demand things… No more gettin [sic] trashed shit faced in the garage or anywere [sic] for me it not good especoly [sic] with 3 kids. I want to be more committed to you… I realize you are not my possession now I jus [sic] hope you love me and come home. I guess I should think before I act and think of the positive more than the negative and make responsible nice choices in life and for us…

Cross-Examination

[87] The complainant confirmed that she attended the police station to give a statement on December 14, 2019. She confirmed that she created a written document prior to attending the police station outlining the allegations. The complainant testified that she began working on this document about six weeks prior to attending the police station. The complainant also confirmed that she was charged on November 3, 2019 in relation to allegations that she assaulted and threatened the accused.

[88] The complainant confirmed that October 18, 2019 was the date that she packed up the accused’s belongings into six garbage bags. The complainant testified that she and the accused are in the midst of a custody dispute. The accused was permitted to have supervised access while the complainant was on conditions to have no contact with the accused.

[89] With respect to the allegation at the accused’s parents’ house, the complainant confirmed that the accused’s parents’ house was small and that a gas station business was being run from the house. People were coming and going as a result. During the incident, the accused would not let the complainant out of the house and the dispute lasted for about an hour. As for the complainant’s testimony that the accused followed her in a car, the complainant confirmed that this assertion was not in the written document that she prepared prior to going to the police station.

[90] The complainant also confirmed that the accused would yell at her while she was pregnant with her first child and that he would occasionally hit her. The complainant did not disclose any of the abuse to her mother because her mother did not approve of the accused.

[91] With respect to the incident at her friend’s house where the accused pushed the complainant up against a wall, the complainant initially testified that the incident occurred in 2015. In fact, the incident occurred in 2005. The complainant testified that she made this error because she had misread her written statement.

[92] With respect to the incident that was allegedly witnessed by her friends, the complainant testified that the incident occurred in 2008 or 2009. The complainant is confident of this date because of her sons’ age at that time. The complainant confirmed that there were two specific instances in this episode where the accused made physical contact with the complainant: when he hit her inside the house, and when the accused pushed the complainant against the door jam. The complainant agreed that in her initial written statement, she only made reference to one instance of physical contact. The complainant testified that her friends would have been able to see the instance where the accused pushed the complainant against the door jam.

[93] The complainant testified that she only went to the police because her eldest son’s counsellor made her feel that she ought so to do. At that time, the eldest son had a detailed plan of how he was going to kill the accused. The complainant was trying to keep her son out of psychiatric care and out of jail. The complainant testified that the eldest son has been living with the accused and the accused’s girlfriend for the past year-and-a-half. The complainant believes that the eldest son has chosen to live with the accused because the complainant cut the son off financially during the son’s addiction crisis.

[94] The complainant confirmed that the accused owned a number of firearms and that the accused was largely responsible with same.

[95] The complainant was pressed about the fact that she did not call the police when the accused pointed firearms at her. She testified that she tried to hide everything from her children and that the children seldomly saw the accused in an intoxicated state. The complainant also testified that she did not want to do anything the day after these incidents because she did not want to suffer any repercussions.

[96] As regards the Detroit concert, the complainant testified that the more intoxicated the accused became, the darker he became. The complainant testified that, to her knowledge, the accused had an MRI upon returning from Detroit which showed torn ligaments. The accused was in a zinger splint after seeking this medical attention. The complainant was pressed on the fact that, despite having injured himself badly as a result of the jump, the accused walked from the stadium to a taxi and walked from the taxi to the hotel room.

[97] The complainant was taken to the incident involving the Eschcotts. The complainant revisited her testimony and stated that the OPP showed up to investigate but did not speak with the complainant. She does not know if charges were laid. She believes that, in the eyes of the accused’s parents, the complainant had the accused beaten up.

[98] With respect to the stag and doe event, the complainant stated that no one said anything when the accused spat beer in the complainant’s face, despite people witnessing same.

[99] The complainant testified that she lives in fear of reprisal.

[100] As regards on-going family law proceedings, the complainant stated that she would like to settle matters but she does not know why the accused will not negotiate an agreement in light of the report from the Office of the Children’s Lawyer.

Re-Examination

[101] The complainant stated that December 14, 2019 was the worst day of her life because it was the day she had to relive a bad part of her life and turn her children’s lives upside down.

Constable Denny Lambert

[102] Cst. Lambert testified that he is a police officer with the Batchewana First Nation. On December 19, 2019, he was working on general patrol when he arrested the accused. On December 27, 2019, he attended the accused’s residence and seized firearms from the accused including a Smith & Wesson .40 calibre pistol.

Ms. Amaya Gabcan

[103] Ms. Gabcan testified that the complainant is a friend of hers. They met in 2006 when Ms. Gabcan first moved to Garden River. In 2009 or 2010, Ms. Gabcan testified that she, the complainant and another friend went out for drinks. It was the spring or summer. It was a girls’ night out as all three women had young children. Ms. Gabcan drove that evening.

[104] Ms. Gabcan drove to the complainant’s house behind the gas station late at night. The complainant stated that the accused was going to be angry which Ms. Gabcan took as a normal reaction when someone’s spouse came home later than expected. The three women arrived at the residence. The complainant exited the vehicle and walked to her door. Ms. Gabcan was not sure if the complainant was able to get inside her house. When Ms. Gabcan looked up, the complainant and the accused were in a struggle. There was a lot of pushing and pulling back and forth. The accused was overpowering the complainant and the complainant ended up being thrown to the deck. Ms. Gabcan did not believe that there were any railings on the deck at that time.

[105] Ms. Gabcan exited her truck and went to the residence. By the time Ms. Gabcan reached the deck, the accused and the complainant had entered the residence. The accused locked the door and was yelling at Ms. Gabcan, calling her names from behind the glass door. The complainant was behind the accused and Ms. Gabcan could not get a full view of the complainant. The accused yelled at Ms. Gabcan, stating that Ms. Gabcan was an intoxicated driver and that he would therefore call police. Ms. Gabcan testified that she was not drinking that night. Ms. Gabcan left the residence.

[106] Afterwards, the complainant advised Ms. Gabcan that the accused had a substance abuse issue and that the accused’s behaviour on the night in question was not typical. Ms. Gabcan could not recall how that conversation came about.

[107] Ms. Gabcan remained a friend of the complainant’s but the relationship waned such that Ms. Gabcan did not see the complainant as often over the years.

[108] Ms. Gabcan saw the accused post-incident whenever Ms. Gabcan went to the gas station. It was an awkward interaction but Ms. Gabcan did not ever ask the accused about the incident.

[109] In cross-examination, Ms. Gabcan confirmed that at no point did the complainant go into the house and come back outside.

[110] Ms. Gabcan also confirmed in cross-examination that, in 2019, she and the complainant resumed a more involved friendship.

POSITION OF THE PARTIES

[111] The Crown submits that it has proven the accused guilty beyond a reasonable doubt of all charges before the court. The Crown submits that the complainant was a credible witness whose testimony was logical and persuasive. The complainant’s evidence was also corroborated in material ways by the evidence of Ms. Gabcan, Cst. Lambert and the Letter.

[112] The Crown also submits that I ought to accept that the gun that the complainant described is a firearm as defined by the Criminal Code of Canada even though there is no evidence that the firearm was ever tested by an expert. The Crown submits that I ought to make this finding based on the complainant’s evidence that:

a. She helped the accused purchase the firearm;

b. She used it on occasion to shoot targets; and

c. She identified the firearm seized by police.

[113] The accused submits that the Crown has failed to displace its evidentiary burden in this case. The accused submits that the complainant’s evidence is fatally flawed because:

a. The complainant began preparing her written version of events at approximately the same time that she was charged by police. The fact that the complainant was charged provides a motive for the complainant to fabricate her evidence as does the ongoing custody litigation, coupled with the eldest son’s decision to live with the accused;

b. The complainant’s demeanor in the witness stand was such that I should find that she was searching for evidence, attempting to fill in blanks and was crying and occasionally hysterical, which are all hallmarks of someone who is not being truthful with the court;

c. The complainant had internal inconsistencies within her evidence that suggest that she is making up her testimony including mistaking dates and forgetting important details;

d. The complainant’s evidence about this incident on the deck was inconsistent with Ms. Gabscan’s evidence which again demands that the complainant’s evidence is not worthy of belief;

e. The complainant’s evidence contains implausibilities that destroy the complainant’s credibility. These implausibilities are:

i. The fact that the complainant testified that abuse occurred while the couple lived in the accused’s parents’ small house where people would come and go on a consistent basis;

ii. The complainant did nothing to address the alleged abuse, especially those instances where handguns were used;

iii. The complainant would not have been able to see the reflection of the handgun in the window during the second handgun incident if the accused in fact stood behind her; and

iv. The accused would not be able to walk after jumping down the exit levels at the Detroit concert.

[114] The accused also submits that there is no evidence that the alleged firearm meets the definition of a “firearm” under the Criminal Code.

[115] The accused submits that the Letter is undated and could relate to any phone as the Letter does not specify that the accused is referring to the complainant’s Blackberry.

THE RELEVANT LAW

Firearms

[116] Section 2 of the Criminal Code of Canada defines a “firearm” as follows:

firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; (arme à feu)

[117] Often, the Crown will prove that a gun meets the definition of a firearm by having an expert – typically a police officer specially trained in firearms usage – take a seized firearm and shoot it at a shooting range. This expert will then provide expert evidence via affidavit or via viva voce evidence.

[118] The courts, however, have made clear that this method of proof is not the only way in which the Crown can prove that a gun meets the aforementioned definition. At para. 5 of R. v. Campbell, 2015 ONSC 2060, Nordheimer J. (as he then was) reviewed the jurisprudence which states that the court may look at a variety of evidence to conclude that a gun meets the definition of a firearm:

The preliminary hearing judge clearly rejected the concept that the complainant's evidence could provide circumstantial evidence proving that the object that the robber had was a firearm. In doing so, the preliminary hearing judge did not refer to a long line of authorities from the Court of Appeal that establish that such evidence can be sufficient to draw an inference that the object in question is a firearm. In particular, I refer to the decision in R. v. Wills, 2014 ONCA 178, [2014] O.J. No. 1069 (C.A.) where Doherty J.A. said, at para. 50:

I do not conclude from Parliament's decision to criminalize the use of imitation firearms, an obviously dangerous activity, that the normal rules of proof do not apply to an allegation that an accused used a firearm, as defined in s. 2 of the Criminal Code. The Crown may prove that the alleged firearm fell within the definition by inference from the totality of the circumstances, even if the alleged firearm was not fired or recovered. This court has upheld trial decisions that have drawn that inference even though the firearm was not discharged or recovered: see R. v. Richards, 2001 CanLII 21219 (ON CA), [2001] O.J. No. 2286 (C.A.); R. v. Carlson, [2002] O.J. No. 1884 (C.A.); and R. v. Charbonneau, 2004 CanLII 9527 (ON CA), [2004] O.J. No. 1503 (C.A.). [Emphasis added.]

Forcible Confinement

[119] The jurisprudence that has developed around the law of forcible confinement has made clear that an action need not be extreme in its physicality in order to make out the offence. In R. v. Pritchard, 2008 SCC 59, the Supreme Court of Canada stated at para 24:

The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2): see Luxton, at p. 723; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), per Cory J.A., at p. 475; R. v. Tremblay (1997), 1997 CanLII 10526 (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.), per LeBel J.A. (as he then was), at pp. 91-92; and R. v. Mullings, 2005 CarswellOnt 3022 (S.C.J.), per Durno J., at para. 39.

[120] By way of example, the Ontario Court of Appeal in R. v. Van Stanten [1999] O.J. No. 1576 stated at para 3:

The evidence is Ms. Van Santen followed the principal into her office uninvited and shut the one door to the office behind her. The principal asked Ms. Van Santen to open the door of her office three times. Ms. Van Santen refused saying she wanted to have a private conversation. She placed herself in front of the door and placed her arm across it. The principal said she would call the police. Ms. Van Santen told her to go ahead. Ms. Van Santen said, "I wasn't going to open the door until I got an answer" to a witness and similar words to the police. These circumstances amply justified the finding of guilt made by the trial judge.

Credibility and Reliability

[121] Doherty J.A. described the difference between credibility and reliability at page 526 of R. v. Morrissey, (1995) 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.):

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

[122] Watt J.A. described the difference between credibility and reliability at para. 41 of R. v. H.C., 2009 ONCA 56:

Credibility and reliability are different. Credibility has to do with a witness's veracity, 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 (R.J.) (1995), 1995 CanLII 3498 (ON CA), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.].

[123] At paras. 12 and 13 of R. v. M.(A.), 2014 ONCA 769, the Ontario Court of Appeal described the manner by which inconsistencies are to be viewed when assessing credibility:

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

Rebuttal of Recent Fabrication

[124] Prior consistent statements may be adduced to refute an allegation of recent fabrication where the suggestion is made that a complainant is fabricating a story in order to gain an advantage in civil litigation (and presumably other litigation, such as family law proceedings): R. v. Stirling (2007), 2007 BCCA 4, 215 C.C.C. (3d) 208 (B.C.C.A.); affirmed 2008 SCC 10, [2008] 1 S.C.R. 272. In Stirling, the British Columbia Court of Appeal stated at paras. 32 and 33:

He noted at 294: "[t]he law does not require that an allegation of recent fabrication be made explicitly: the court can look at all the circumstances of the case".

His Lordship commented on the nature and effect of an allegation of recent fabrication at 295:

. . . an allegation of recent fabrication is no more than an allegation that the complainant has made up a false story to meet the exigencies of the case. The word recent' means that the complainant's evidence has been invented or fabricated after the events in question and thus is a recent' invention or fabrication . . .

and continued quoting from Di Carlo v. U.S., 6 F. (2d) 364 (2nd Cir. 1925) at 366, cited in Wigmore on Evidence in Trials at Common Law, (Chadbourne rev.) vol. 4 (Toronto: Little, Brown and Company, 1972) at 274:

. . . when the veracity of a witness is subject to challenge because of motive to fabricate, it is competent to put in evidence statements made by him consistent with what he says on the stand, made before the motive arose.

ANALYSIS

The Credibility Analysis and Ms. Belleau’s Evidence

The Complainant’s Demeanor

[125] The complainant was the main witness in the trial. With respect to her evidence, she recounted certain aspects of the couple’s relationship and would occasionally leave out important details. The complainant would also cry and occasionally need a break. The Crown would often have the complainant return to an aspect of her evidence. This combination of factors made it difficult to follow the complainant’s evidence.

[126] The accused submits that this demeanour ought to leave me with some concern that the complainant was less than forthright. The accused submitted that any hesitations in the complainant’s evidence were attempts to “fill in the blanks” as the complainant made up her testimony as she went.

[127] I agree that the complainant would occasionally be blunt in answering questions or would be curt with certain responses. These answers were not, however, rude or disrespectful. While the complainant’s demeanor was emotional, I did not find that she evaded questions, was overly confrontational in cross-examination or that her pauses were attempts to “fill in the blanks”. Rather, it was clear that the complainant was tired and emotionally drained by two-and-a-half days of testimony. The complainant’s conduct did not, therefore, diminish the value of what she was telling the court. I take nothing from the complainant’s comportment other than the fact that she was upset on a few occasions when she recounted difficult episodes. In other words, I do not find that her demeanor negatively affected her credibility.

Three of the Four Allegedly Fatal Flaws

[128] The accused also submitted that the complainant’s evidence contained four fatal flaws that go to the heart of the complainant’s credibility such that she cannot be seen to be a trustworthy witness. I will deal with the gun’s “reflection” issue later in these reasons. The remaining three allegedly fatal flaws are:

a. The fact that that the complainant alleged that the accused would forcibly confine and/or abuse the complainant in a small house where people would come and go regularly;

b. The fact that the complainant testified that she did nothing about the accused’s alleged use of a handgun despite the fact that this behaviour would have threatened her children’s well-being; and

c. The fact that the accused would not have been able to walk had he jumped down the ramp at Comerica Park.

[129] With respect to the instance of abuse that allegedly occurred in the accused’s parents’ small house, I do not find that this evidence is at all implausible. There is nothing to suggest that the parents were home during the incident in question or that the accused would have been deterred by their presence in any event. The fact that the house was small and that individuals would come and go with regularity does not make the complainant’s evidence any less worthy of belief. People regularly undertake actions that are risky or illogical. The complainant’s evidence that the accused engaged in such conduct is not, therefore, inherently untrustworthy.

[130] The fact that the complainant alleged that she did nothing when confronted with the accused’s pointing of a handgun also does not cause me any concern with respect to the complainant’s credibility. Much has been written about the conduct of complainants in cases of domestic violence: see R. v. Lavallée, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, and many others. In this instance, the complainant testified that she did not do anything about the accused’s behaviour because she feared reprisals. In fact, she testified in re-examination that the still feels as though she has a target upon her back because she went to the police. As such, the complainant’s reasoning for failing to confront the accused’s alleged handgun use is entirely plausible and makes sense in the circumstances. I therefore take nothing from this submission.

[131] Finally, the accused submitted that, given the nature of the injuries allegedly suffered by the accused at Comerica Park after the Eminem concert, it would be implausible for the accused to have walked to a taxi or from a taxi to the hotel room. Ergo, the complainant’s truthfulness is suspect. I have no evidence before me to suggest that the injuries allegedly suffered were such that the accused could not walk from the stadium to the taxi. Therefore, while I understand the accused’s position on this point, the evidence is not such that I will make any adverse findings of credibility given that the nature of the injuries suffered were not in evidence and the height of the fall (unlike, for example, a hundred-foot fall) was not such that serious harm would by definition have been caused by same.

[132] Therefore, I dismiss the accused’s submissions with respect to the aforementioned areas of concern.

The Reliability Analysis and Ms. Belleau’s Evidence

[133] The complainant’s evidence featured a number of internal inconsistencies that affect her reliability. The complainant was uncertain with respect to a number of dates. She could not remember with precision whether an incident occurred in a given year. She would have to give date ranges based upon the ages of her children. The complainant also corrected herself with respect to an incident that she initially thought occurred in 2005 but later testified that the event occurred in 2015. The complainant attributed this error to misreading her statement.

[134] The complainant also made a number of errors regarding specific aspects of the criminal allegations. For example, the complainant failed to mention in her police statement that the accused followed her in a car after the initial abusive incident. She forgot to mention in her initial statement that she would call her uncle to fix the car battery when the accused allegedly disabled same. She also made errors with respect to the allegation whereby the accused allegedly pushed the complainant against the washing machine in that her initial statement indicated that the accused would not leave the home whereas, in her testimony, she stated that the accused would not let the complainant leave the home.

[135] None of these errors, taken individually, are fatal to her testimony. Collectively, the errors are cause for some concern. During this trial, it became apparent to me that the complainant was recounting nearly two decades of psychological and physical abuse. Given the nature of the complainant’s recollections, the complainant seemed to conflate various aspects of various episodes. Therefore, it is difficult to make any findings beyond a reasonable doubt unless the nature of the event was significant or if the complainant’s evidence was corroborated.

Ms. Gabcan and Recent Fabrication

[136] The accused submits that the timing of the complainant’s attendance at the police station gives rise to a strong inference that the complainant fabricated her testimony. The complainant testified that she began writing her version of events in early November of 2019, the same time she was charged for allegedly assaulting and threatening the accused. This fact leads to the obvious conclusion that the complainant made up her version of events as a means of countering the accused’s allegations. This inference is also powerful given the family law litigation that must undoubtedly have been on the complainant’s mind at that time. I note that the suggestion that the complainant is being untruthful with the court is tantamount to an allegation of recent fabrication.

[137] These concerns were, however, rebutted by Ms. Gabcan’s evidence. First, there was no evidence that Ms. Gabcan and the complainant colluded in regard to their evidence.

[138] Secondly, Ms. Gabcan’s evidence was persuasive. Ms. Gabcan testified in a forthright manner. She recounted her version of events seemingly without embellishment or any apparent animus. She was not cross-examined with respect to any motive she may have had for giving testimony and I have no basis to believe that the witness was attempting to give the court a slanted version of events. In short, I believe that Ms. Gabcan was being a truthful and credible witness, recounting events as best she could in the circumstances.

[139] The reliability of Ms. Gabcan’s evidence was also relatively strong. She was clear with respect to those aspects of the evidence she could recall and did not appear to “fill in the blanks” where she had no memory. For example, she fixed the date of the alleged incident not by direct recollection, but by triangulating same using the dates of birth of her children as yard posts. She was also equivocal about the dates in question, by using the term “I believe” when describing her level of certainty. Since Ms. Gabcan was testifying about events that occurred over ten years ago, her specificity adds to her reliability.

[140] On major points of evidence, the complainant and Ms. Gabcan corroborated each other. They agreed that Ms. Gabcan was driving on the night in question. They agreed that there was a physical altercation and that the accused was the aggressor. They agreed that the complainant and the accused entered the residence after the physical altercation. They agreed that the accused threatened to call the police about Ms. Gabcan’s alleged drinking and driving. Effectively, they agreed about the important features of an incident that occurred over a decade ago and neither witness was moved in cross-examination on these points.

[141] The two witnesses had differences in their recollections, however. The complainant testified that there were two separate instances of physical confrontation during the “girls’ night out” while Ms. Gabcan appeared to indicate that there was only one instance of physical confrontation. Ms. Gabcan testified that the complainant fell to the deck while the complainant did not initially testify to that effect.

[142] These differences cannot be reconciled and I do not accept the complainant’s evidence on these points. The event occurred over ten years ago and, while the event must have been unusual for Ms. Gabcan, the complainant’s evidence was that the event was simply another instance of abuse in a seventeen-year abusive relationship. The complainant’s inconsistency is therefore understandable given the lengthy pattern of abuse described by the complainant. The complainant’s reliability with respect to the specific number of physical incidents in this occurrence is therefore unreliable and cannot be accepted.

[143] On the other hand, and as explained above, I accept Ms. Gabcan’s evidence because she was both credible and reliable. Thus, Ms. Gabcan’s evidence proves that the complainant did not fabricate her evidence in November 2019 as a means of seeking revenge. Ms. Gabcan’s evidence – which I accept beyond a reasonable doubt – proves that, on the night where Ms. Gabcan, Ms. Zack and the complainant enjoyed a “girls’ night out”:

a. The complainant came home late from a night out with her girlfriends;

b. The complainant and the accused had a physical altercation on the deck outside the complainant’s house;

c. The accused was the aggressor;

d. The complainant was thrown to the ground by the accused;

e. The accused began to yell at Ms. Gabcan and shouted at her that he was calling the police because she was drinking and driving; and

f. The complainant told Ms. Gabcan the next day that the accused had a substance abuse issue and that said behaviour was out of the ordinary.

[144] Accordingly, I hereby find the accused guilty of count 2 on the indictment.

The Letter

[145] Despite the accused’s submission that the letter was imprecise and ought to be afforded little weight, it is clear that the Letter was of considerable importance in this trial. The Letter was clearly an admission by the accused that he had broken the complainant’s cell phone. Although the Letter made no mention of a brand name or a date, the only evidence I have is from the complainant that the accused broke her Blackberry in a fit of jealous fury. The Letter corroborates this evidence in that:

a. The accused accepts responsibility for breaking a phone; and

b. The accused admits to his insecurity that the complainant may find another man.

[146] Therefore, I accept the complainant’s evidence beyond a reasonable doubt as it relates to the breaking of the cellphone at the Garden River golf course because that evidence is corroborated by The Letter. The accused is therefore guilty of count number 8.

The First Firearms Charge

[147] The firearms charges before the court stand out for their severity and import. The complainant’s evidence discloses that the accused allegedly engaged in a persistent pattern of abuse. As noted earlier in these reasons, her evidence also appeared to contain errors with respect to specific recollections that blended together since the complainant’s memories contained similar factual allegations. The firearms offences, however, are entirely dissimilar from the other allegations before the court.

[148] This is an important distinction because in this instance, the complainant was clear with respect to both handgun allegations and was unshaken on cross-examination. As for the first allegation, the accused argued that the complainant could not have seen the gun under her chin. The complainant made clear that she could feel the gun under her chin. She felt the cold pressure. The saw the cuts on the accused’s face from his fall. Those details have “the ring of truth”. One can easily see how a complainant in such a situation would remember such details. Equally, the complainant testified that she observed the gun as the accused walked away. This is consistent with the complainant feeling, but not seeing, the gun at her chin and is also the kind of detail one can imagine a truthful witness remembering as they recollect a particularly traumatic event. The complainant was not shaken on these points in cross-examination and I have no basis to doubt the complainant’s credibility or reliability as regards this allegation. I have no doubt whatsoever that the major events of the night in question – the pointing of the handgun and the throwing of the rocks – were accurately recounted by the complainant.

[149] Therefore, and as a result of the foregoing, I find the accused guilty of count 6 (assault with a weapon to wit: rocks).

The Second Handgun Charge

[150] With respect to the second handgun allegation, the accused argued that the complainant would not have been able to see the handgun pointed behind her in a reflection in a kitchen window. The complainant was asked about same and she clearly stated that the accused was standing at an angle such that the complainant could not only see the gun in the reflection but could feel its cold metal presence against her neck. This evidence also had the “ring of truth”. She offered this evidence to the court as part of her examination-in-chief and I was not left with the impression that the complainant was “filling in the blanks”. Her evidence did not cause me any concern with respect to her credibility or reliability with respect to this second handgun allegation as she was unshaken on this point. I also note that:

a. The complainant was unshaken in cross-examination on both firearm incidents;

b. The firearms incidents were quite alarming and would stand out even in a near twenty-year history of abuse; and

c. The allegations were corroborated by the seizure of a handgun by police.

[151] Based on the foregoing and even factoring in my concerns with respect to the complainant’s reliability, I accept the complainant’s evidence beyond a reasonable doubt with respect to both firearms allegations. I do so because her evidence was persuasive and the nature of the incidents was such that they were undoubtedly terrifying and memorable, even in the context of an extended period of abuse.

Did the Accused Point a “Firearm”, as described by the Criminal Code of Canada?

[152] It ought to go without saying that the Crown and the police could easily have had the firearm tested and that expert evidence should have been tendered to prove that the handgun seized met the definition of firearm as per s. 2 of the Criminal Code of Canada. That investigative technique would have ended the inquiry. Instead, sloppy investigative work requires me to conduct an analysis as to whether the gun that the accused pointed at the complainant on two occasions meets the definition of a “firearm” as per s. 2 of the Criminal Code of Canada.

[153] I accept the complainant’s evidence that she helped the accused purchase the gun at Perry’s in Sault Ste. Marie. I take judicial notice of the fact that Perry’s is a store in Sault Ste. Marie that sells firearms. The purchase of a firearm appears to have been a significant event in the life of the accused and the complainant since the complainant was able to specify the date that the gun was purchased using the accused’s father’s birthdate as a reference point. The complainant testified that she helped the accused prepare his paperwork to purchase the handgun, which is a prerequisite to purchasing a firearm in Canada. The complainant testified that she and the accused went into the bush and successfully test fired the handgun on a few occasions.

[154] The complainant was not in any way shaken in cross-examination on these points and I have no reason to disbelieve her evidence as regards same. I also note that the object seized from the accused’s residence looks like a firearm. It is the appropriate size, colour, shape and has the appropriate markings of a firearm. It was conceded by the accused that the object identified in the witness box by the complainant is, in fact, the object seized by the police.

[155] Given all of the foregoing, I accept the complainant’s evidence beyond a reasonable doubt regarding the matters discussed in the previous three paragraphs. I also accept that the object that was seized from the accused’s residence post-arrest was the same object that was pointed at the complainant on two occasions. I accept that this object meets the definition of a firearm as per s. 2 of the Criminal Code of Canada because it is “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm”.

[156] Thus, the accused will be found guilty on counts number 5 and 7 on the indictment.

The Remaining Counts

[157] The drafting of the indictment in this case was problematic. Certain counts appeared to be minor when compared to the significant allegations (i.e. forcible confinement, utter threats, assault with a weapon to wit: hot chocolate, etc.) Other significant events had no specific count related to them (the Ojibway Park incident, etc.). The complainant appeared to make mistakes concerning the less significant charges which, as noted above, is neither surprising nor a blight upon the complainant’s credibility. This issue did, however, affect my view of the complainant’s reliability with respect to the more minor allegations. These less significant allegations appeared to involve:

a. allegations of forcible confinement where the accused would not let the complainant leave a room or a residence;

b. punches and/or hand strikes and/or physical confrontations where the complainant wound up with goose eggs; and/or

c. the use of beer cans, hot chocolate or other smaller objects to strike the complainant.

[158] I have no basis to reject the complainant’s evidence about the nature, frequency and intensity of those confrontations save and except to state that the complainant often left out and/or forgot important details of these events. While this is not surprising given the length and apparent frequency of the abuse, and while I do not doubt the complainant’s credibility with respect to the ongoing abuse and the less traumatic allegations, her reliability on these counts is questionable.

[159] Thus, I have a reasonable doubt that the complainant conflated and/or innocently mistook important aspects of the less severe counts on the indictment. These errors and omissions dealing with the less noteworthy instances of abuse are such that I find the accused not guilty of the remaining counts because I have a reasonable doubt that the complainant’s testimony about the lesser instances of abuse are an amalgam of numerous instances erroneously jumbled together.

CONCLUSION

[160] I find the accused guilty of counts 2, 5, 6, 7, and 8, and not guilty of counts 1, 3, 4, and 9.

“original signed by Varpio J”

Varpio J.

Released: October 29, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TERRY BELLEAU

REASONS FOR JUDGMENT

Varpio J.

Released: October 29, 2021

[^1]: Perry’s is a Sault Ste. Marie gun dealer. [^2]: The accused conceded that the gun that was shown to the complainant was the gun that police seized from the accused.