R v. Smart, 2022 ONSC 2991

COURT FILE NO.: CRIMJ(P) 315/20

DATE: 20220520

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DYON SMART

Ms. K. Slate and Ms. C. Nadler, for the Crown

Mr. M. Moon and Ms. L.Gensey, for the Accused

HEARD: September 16, 17, 21, 22, 23, 24, 27, October 1, 4, 5, 8, 12, 13, 14, 15, 2021, November 1, 3, December 21, 2021, February 2, 1,16, 2022 (by Zoom) September 20, 28, 29, October 6, 2021 (in person)

The court issued an order, under section 486.4(2.2) of the Criminal Code, prohibiting any information that could identify the victim in this case from being published in any document or broadcast or transmitted in any way. This version of the Reasons for Judgment has been edited to comply with the terms of that order.

REASONS FOR JUDGMENT

STRIBOPOULOS J.

Introduction

1Early on the morning of July 19, 2018, DD, then just five years old, somehow came to leave the townhouse in Brampton where he lived with his mother, MJ.

2When Ms. J awoke later that morning and discovered D was missing, she became frantic. After searching her townhouse, she emerged from the residence, understandably hysterical. She encountered a neighbour and asked him to call 911, which he did at 6:06 a.m. Ms. J then ran across the street and knocked on another neighbour's door in a desperate search for D. Ms. J's screams quickly drew other neighbours out of their homes.

3Within five minutes, the first police officer arrived at the scene, quickly followed by others, who joined residents of the townhouse complex in a search for D. At 6:58 a.m., a police officer with the canine unit, assisted by his dog, found D's almost lifeless body down an embankment in a heavily wooded area next to a rail line adjacent to the townhouse complex. D had on his pyjamas and running shoes when the officer found him. The little boy was in and out of consciousness, severely injured, and clinging to life. D was the victim of an incomprehensible crime; someone had brutally assaulted him and left him for dead.

4Thankfully, D managed to survive his life-threatening injuries, but only because of timely medical intervention. Mercifully, when interviewed by police a few weeks later, D could not remember what had happened to him and could not explain how he came to be in the hospital. However, because of that, he cannot assist in identifying the person responsible for almost killing him.

5Mr. Smart, who was in an on-again and off-again relationship with Ms. J, had slept at her residence that night and was there that morning, apparently asleep in the main floor living room when Ms. J woke up to find D missing. Within only a couple of hours of the police finding D, they arrested Mr. Smart at the hospital.

6Mr. Smart stands charged with attempted murder and aggravated assault for what happened to D. He also faces a single count of breaching a recognizance for failing to comply with a home confinement condition in a bail order he was subject to in July 2018. His trial proceeded before me without a jury. Due to the pandemic, the Crown and Mr. Smart agreed to have most of the trial occur over videoconference. These are the court's Reasons for Judgment concerning Mr. Smart's charges.

7By the end of the trial, Mr. Smart made two entirely well-founded concessions that considerably narrow the issues the court must decide to arrive at its verdicts in this case. First, several witnesses testified that Mr. Smart was staying at Ms. J's townhouse before July 19, 2018. As a result, the defence concedes that Mr. Smart is guilty of breaching his recognizance, which required him to remain inside his surety's residence (Ms. J was not his surety). Second, given D's injuries and the isolated location where his assailant left him, Mr. Smart concedes that whoever assaulted D undoubtedly meant to kill him.

8Accordingly, the sole issue that the court must decide is whether the Crown has proven beyond a reasonable doubt that Mr. Smart was the person who attempted to kill D by brutally assaulting him.

9The Crown's case against Mr. Smart consists entirely of circumstantial evidence. According to the Crown, the evidence establishes that Mr. Smart had a motive and near-exclusive opportunity to harm D. Additionally, the Crown points to physical evidence as establishing a connection between Mr. Smart and the crime. The Crown maintains that the diamond-shaped cross-hatching pattern on the soles of some running shoes that it alleges belonged to Mr. Smart appears consistent with pattern bruising on D's face. Forensic DNA evidence also provides some link between those shoes and D, while other DNA evidence links D to Mr. Smart and the socks he was wearing when arrested. Finally, the Crown argues that Mr. Smart's after-the-fact conduct is consistent with his guilt. Based on the totality of the circumstantial evidence, the Crown submits it has discharged its burden of proving beyond a reasonable doubt that Mr. Smart is the person who brutally assaulted and attempted to kill D and that he should be found guilty of the charges.

10In contrast, the defence argues that Mr. Smart is factually innocent, or, at a minimum, the court should have a reasonable doubt that he was the person responsible. Defence counsel forcefully challenges each plank of the Crown's circumstantial case. First, the defence submits that Ms. J, whose evidence the Crown relies upon to establish that Mr. Smart had a motive and the opportunity to commit the crime, is a less than credible witness. Further, even accepting her timeline of the relevant events, Mr. Smart contests that he would have had an opportunity to commit the crime. Additionally, the defence challenges Mr. Smart's connection to the shoes, whether the pattern on their soles appears similar to the pattern bruising on D's face, and the ultimate probative value of that evidence. The defence also contends that the DNA evidence is consistent with an entirely innocent explanation; D and Mr. Smart were playfighting the night before the boy went missing, which could have occasioned the transfer of DNA between them. Lastly, the defence submits that Mr. Smart's desire to avoid being arrested for breaching his bail explains his conduct after D was discovered missing.

11Given that the Crown's case against Mr. Smart is based entirely on circumstantial evidence, to find him guilty beyond a reasonable doubt, an inference that he is the person responsible for brutally assaulting and attempting to kill D has to be the only reasonable inference the circumstantial evidence permits: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. Accordingly, if the evidence, or a lack of evidence, gives rise to any other reasonable alternative inferences, Mr. Smart must be found not guilty: Villaroman, at paras. 36-42.

12With that introduction, these reasons will proceed in three main parts. First, the court will address Ms. J's credibility as a witness. Then, in the second part, the court will briefly summarize the evidence. Finally, in the last part, these reasons will assess the whole of the evidence to decide whether the Crown has proven the charges against Mr. Smart beyond a reasonable doubt.

I. MJ's Credibility

13Although she testified at the preliminary inquiry, Ms. J refused to be sworn and give evidence at trial. As a result, the court cited her for contempt. A contempt hearing is now scheduled for her later this year.

14The Crown responded to that development by applying to have Ms. J's preliminary inquiry testimony admitted under section 715(1) of the Criminal Code, R.S.C., 1985, c. C-46. The court granted that application and ordered that the recording of her preliminary inquiry testimony be played and marked the transcript as an exhibit: see R. v. Smart, 2021 ONSC 7036.

15As part of its ruling, to ameliorate the potential impact on Mr. Smart's ability to make full answer and defence resulting from Ms. J's refusal to testify, the court exercised its discretion to set various conditions on receiving her preliminary inquiry testimony. That included permitting the filing of potential impeachment materials, which became exhibits before the end of the trial.

16There are several reasons to approach Ms. J's evidence from the preliminary inquiry with a fair degree of caution.

17First, during her testimony, Ms. J admitted that she had been involved in the drug trade for at least a decade before July 2018. She acknowledged selling cocaine and ecstasy. In recent years, Ms. J admitted to selling both substances exclusively to six other drug dealers who would peddle the drugs to their retail customers. Further, she admitted to keeping cocaine in her medicine cabinet in her bathroom. Additionally, at least at times, during that same period, she collected social assistance while failing to disclose her income from drug dealing. Ms. J also did not have any compunction about selling drugs or their impact on those who would use them. Finally, she never told the police officers who investigated what happened to D about her drug dealing, explaining that they never asked and that she did not think it had anything to do with their investigation. All that evidence unquestionably reflects rather negatively on Ms. J's character and her credibility as a witness.

18Second, after the preliminary inquiry but before trial, the court ordered the production of Peel Children's Aid Society (CAS) records concerning Ms. J's involvement with that agency. Information from those records reveals that Ms. J gave incomplete and misleading testimony at the preliminary inquiry regarding her history with the CAS. Those records also suggest that she downplayed the nature and extent of her drug use during her evidence. Finally, despite her extensive involvement over the years with the CAS, she concealed her role in the drug trade from them, which Ms. J readily acknowledged during her testimony.

19Third, it is evident that Ms. J has unbridled hostility toward Mr. Smart. Almost immediately after discovering D was missing, she concluded that Mr. Smart was the person responsible. On the morning of D's disappearance, Ms. J did not shy away from sharing that view with the police and other witnesses. By the preliminary inquiry, she held that view even more firmly. While testifying, Ms. J exhibited unconstrained scorn for Mr. Smart, repeatedly referring to him as a "monster." At one point, she even called him "the devil." Although Ms. J denied hating Mr. Smart, that that is how she truly feels about him is palpable when one listens to the recording of her testimony at the preliminary inquiry.

20Fourth, Ms. J's refusal to be sworn and testify at this trial further reflects negatively on her credibility. It begs the question, why did she refuse to do so after testifying at the preliminary inquiry? One cannot help but wonder whether, knowing that the CAS records would provide further fodder for cross-examination at trial, she decided to forego the unpleasantness of answering what would have been some difficult questions.

21As a result, the court must consider Ms. J's testimony from the preliminary inquiry with caution. Nevertheless, I accept most of her evidence concerning the state of her relationship with Mr. Smart in July 2018. I also believe her description of the general chronology of what happened on July 18 and 19. I do so because, in many of its most salient details, her testimony finds support in other evidence, including the testimony of far more independent witnesses.

II. The Evidence (and Some Findings)

22As explained, the Crown's case against Mr. Smart relies entirely on circumstantial evidence. This part summarizes the key aspects of the evidence presented by the Crown at trial; Mr. Smart elected not to call any evidence. Additionally, for ease of reference, various findings, particular to individual items of evidence, are also detailed in this part.

The relationship between Mr. Smart and Ms. J

23Around the summer of 2016, Ms. J and Mr. Smart met. They initially had a platonic relationship, but eventually, a romantic relationship developed between them. In time, Ms. J introduced Mr. Smart to her son, D. She also introduced him to her extended family, to whom she described him as her "boyfriend." At some point, they became engaged.

24As their relationship progressed, Mr. Smart began spending more and more time at Ms. J's residence and staying there overnight, although he never fully moved in. Various neighbours, and Ms. J's uncle, testified to regularly seeing Mr. Smart at Ms. J's home. As well, neighbours frequently saw Mr. Smart in the neighbourhood, often in the company of Ms. J and D.

25According to Ms. J, the relationship was "off-and-on," which she attributed to Mr. Smart's drug use. She explained that she eschewed hard drugs because her parents had drug problems, even though she admitted to selling cocaine. On her account, their romantic relationship ended in December 2017. Even after that, however, Mr. Smart still came around and spent time with her and D in 2018.

26That description finds support in the evidence of some of Ms. J's neighbours. For example, Mr. Fry, who lived with his mother and her boyfriend across the street, described seeing Mr. Smart, sometimes more often, and at other times, less often. In addition, his mother, Ms. MacInnis, testified to seeing Mr. Smart, on one occasion, acting as if he was on drugs, describing him as sweaty, wide-eyed, and hyper. Finally, Mr. Fry, Ms. MacInnis, and her partner, Mr. Larue, all testified, as did Ms. J's next-door neighbour, to frequently hearing Ms. J and Mr. Smart arguing.

27Despite their relationship being long over by the Spring of 2018, Ms. J testified that she reluctantly agreed to let Mr. Smart stay at her residence a couple of weeks before what happened to D. She testified that she intended to give him somewhere to stay and not resume a romantic relationship with him. Ms. J testified to telling Mr. Smart he could stay with her until August 2, subject to two conditions. He could not use drugs, and he was to sleep in the basement.

28Ms. J testified that she purchased a drug test to administer to Mr. Smart after he had stayed over a night or two. During cross-examination, she testified that there were two drug tests, not one, the first in June, which he failed, and another in July when he returned. Ms. MacInnis testified to discussing Mr. Smart's drug use with Ms. J during that timeframe and buying a drug test for opiates that she provided to Ms. J. Ms. J testified during direct examination that Mr. Smart reluctantly agreed to the drug test. However, when he tested positive for fentanyl, she told him he could not stay, and after putting up a fight, he reluctantly agreed.

29After that, Ms. J testified that she discovered Mr. Smart had been sleeping in her backyard for about a week. Ms. J's next-door neighbour testified that not long before D went missing, she was startled by Mr. Smart one morning when she went outside to her backyard. Mr. Smart told her that he and Ms. J were not getting along and that he was sleeping in her backyard to avoid them fighting.

30According to Ms. J, Mr. Smart camping out in her backyard made her uncomfortable, and she spoke to him about it. She testified that, at times, he seemed sorry for making her uncomfortable, but at other times he appeared indifferent to making her feel that way.

31By the date of his birthday, July 16, Ms. J testified to taking pity on Mr. Smart and inviting him inside to stay in her basement, which is where he slept on the evenings of July 16 and 17. She testified that she even bought a cake and some presents for his birthday.

32However, Ms. J testified to telling Mr. Smart he could only stay in her basement briefly and that it was just a temporary arrangement. According to her, he responded by saying he had somewhere to move in Scarborough in a few days, and she told him, “Okay, but that was it - there were no more excuses this time." She testified that he seemed to be content with this proposal.

33Ms. MacInnis and Mr. Larue each testified that shortly before D went missing, Ms. J was unhappy and anxious because she had been trying unsuccessfully to get Mr. Smart to leave.

The relationship between Mr. Smart and D

34By all accounts, Mr. Smart and D had a good relationship. Ms. J testified that they enjoyed one another's company and had a "normal" stepfather-stepson relationship. She agreed that the two of them had an emotional bond.

35The neighbours all testified to frequently seeing them together, including occasionally playing basketball in the park at the townhouse complex. Ms. J also testified that D and Mr. Smart sometimes played basketball together. Beyond basketball, Ms. J's next-door neighbour described also seeing them playing soccer and catch. According to Ms. MacInnis, Mr. Smart was like a "father figure" to D, and D "loved" Mr. Smart.

36When police interviewed D a few weeks after the assault, he referred to Mr. Smart as his "stepdad." When asked to describe something he liked about Mr. Smart, D responded: "That he likes to play with me in my room." Asked if they did that often, he said, "Yeah." Finally, when asked if there was anything he did not like about Mr. Smart, D said "No."

Events on the evening of July 18, 2018

37On July 18, Ms. J and D were at their neighbour's residence across the street throughout much of the day. In the months preceding July 2018, Ms. MacInnis and Ms. J had become friends and would spend time together. (By the time of trial, they no longer had a relationship or any contact with one another.) At some point that day, D played basketball with some other children at their townhouse complex, and Ms. J supervised him while he was there.

38Ms. J testified that when she and D left the house that morning, Mr. Smart was still asleep downstairs. She knew that he was planning on doing some laundry, as he was supposed to be leaving the next day. Ms. J testified that she made it clear to him that he was to take all of his belongings when he left.

39Early on the evening of July 18, Ms. J and D went to Gage Park in Brampton with Ms. MacInnis, her partner, Mr. Larue, and their daughter, who is about D's age.

40Ms. MacInnis and Mr. Larue each testified that D fell and scraped his leg close to the knee while at the park. However, they described it as a minor scrape, and Ms. MacInnis testified there was only a "little blood."

41After the park, along with the neighbours, they stopped to do some shopping before heading home. They arrived back home just as it was getting dark. When she got home, Ms. J testified to seeing Mr. Smart playing basketball. Ms. J's next-door neighbour also testified to seeing Mr. Smart playing basketball that evening.

42Ms. J testified that Mr. Smart spoke to her when she arrived home, telling her that children in the neighbourhood had asked if D could come and play. She responded that they were going inside to make dinner. According to Ms. J, at that point, they argued a bit about Mr. Smart leaving dirty dishes in the kitchen sink. She then again broached the topic of when Mr. Smart would be leaving, and he assured her that he would be going in the morning and said that he just wanted to finish the last of his laundry before the next day.

43Not long after they arrived home, while Ms. J was preparing dinner, Ms. MacInnis ran some items they had bought over to Ms. J's place. They spoke just briefly at the front door. At the time, D was playing outside in front of the house. Ms. MacInnis testified that Ms. J was upset and said she wanted Mr. Smart gone and talked about calling the police to get rid of him if necessary. Ms. J testified that she felt anxious, upset, and nervous during that conversation because of the situation with Mr. Smart.

44Mr. Larue testified to overhearing Ms. J and Mr. Smart arguing at around 9:00 p.m. that evening. After that, Mr. Smart went to the MacInnis / Larue backyard and spoke briefly with Mr. Larue; Ms. MacInnis confirmed seeing him there. Mr. Larue testified that Mr. Smart was upset and complaining about Ms. J wanting him to move out.

45Ms. J testified to being relieved to hear that Mr. Smart would be leaving. Nevertheless, she was apprehensive because of Mr. Smart pleading for further chances in the past, to which she had always capitulated. After making dinner, Ms. J testified that she and D changed into their pyjamas, ate dinner, and then began watching a Spiderman movie while sitting on the couch in their living room.

46Ms. J testified that while she prepared dinner, Mr. Smart was in and out of the house to get water as he was still playing basketball. He was also in and out all evening because he was doing his laundry. (The next day, the police found a load of still-wet laundry in the washing machine, mainly consisting of men's clothing, including a distinctive sweatshirt that both Mr. Larue and Mr. Fry testified Mr. Smart had been wearing on the evening of July 18.)

47At some point after eating dinner, Ms. J testified that she and D took a break from the movie and went together over to the residence of Ms. MacInnis and Mr. Larue.

48Ms. MacInnis confirmed that Ms. J visited her house that evening and that by that time, Ms. J and D were wearing their pyjamas. However, Ms. MacInnis recalled two separate visits. During the first, they only spoke briefly over the fence. Ms. J seemed in a better frame of mind than she was earlier. According to Ms. MacInnis, Ms. J said she would come back.

49Ms. MacInnis testified that Ms. J and D came back to her house sometime later. Ms. MacInnis had changed to go to bed but was having a cigarette in her backyard. Ms. J sat down and visited for between ten to thirty minutes. Mr. Larue was also there. Ms. MacInnis testified that Ms. J mentioned that someone was coming to pick up Mr. Smart, and he was supposedly leaving "that night."

50In contrast, Ms. J only remembered going over to the MacInnis and Larue home once that evening, accompanied by D, for about 45 minutes, or a little less. During that visit, she testified that she spoke to Ms. MacInnis and Mr. Larue regarding her concern that Mr. Smart would not leave if his ride did not show up in the morning. Ms. J testified that D could not have overheard her conversation with Ms. MacInnis because he was in the living room, playing with Ms. MacInnis's daughter, while the two of them sat outside talking in the backyard.

51After that, Ms. J testified that she and D went back home. In time, Mr. Smart came into the house for the evening while she and D were still watching the movie. Ms. J testified that, at that point, Mr. Smart and D began playing together, as they always did. She described them as "play fighting," which she characterized as not being rough but playful.

Some arguing and a bump in the night

52Ms. J's next-door neighbour testified that late on July 18, she could not recall the exact time but estimated it was somewhere between 11:00 p.m. and midnight, she heard arguing coming from next door. (She testified that the wall between their residences was relatively thin, and she would periodically hear the couple arguing.) After that, the next-door neighbour heard something bang against the wall, and then she heard Ms. J say, "just leave" or "just please leave."

53After that, the neighbour testified that she fell asleep. A loud banging noise woke her up at 2:00 a.m. It sounded like someone dropping weights on the floor. However, she did not know where the noise originated.

Events on the early morning of July 19, 2018, according to Ms. J

54Ms. J testified that D fell asleep on the couch, watching the movie with her - at "maybe 1:30 a.m." After that, at "around two," "give or take,” she directed him, half-asleep, to his bed in his room upstairs.

55Ms. J testified that D was a deep sleeper who was not usually awakened by sounds once he fell asleep. In contrast, Ms. J testified that she was not a heavy sleeper, and any noise tended to wake her up.

56In addition, Ms. J testified that D did not have any history of sleepwalking and that he had never left the house on his own during the night. She insisted that that was not something he would ever do.

57When she came back downstairs, Ms. J testified that Mr. Smart was in the living room. After putting on another movie, she ate some food while sitting on a couch in the living room. At the time, Mr. Smart was sitting in the living room on the other couch.

58According to Ms. J, Mr. Smart then began trying to engage her in a conversation about giving him another chance. She estimated that, by that point, the movie had been playing for about 45 minutes. He told her he was disappointed in her because she had promised to be there for him and, despite this, she was giving up. Ms. J testified that she responded by getting up and going upstairs rather than engaging with Mr. Smart.

59Ms. J testified that initially, Mr. Smart was pleading with her, but when it was apparent that she was not interested, he became angry. She testified that he got louder and meaner as she climbed the stairs. He told her she was selfish and only cared about herself and her son. Finally, while smirking and not yelling, he said: "Don't worry. I'll be gone in the morning, and I'll be gone for good." Ms. J testified that this exchange happened "just before three."

60Ms. J testified that she then went to her bedroom and closed the door so that she would no longer have to speak with Mr. Smart. Once in her bedroom, Ms. J spent some time on her phone and computer, having conversations and posting on Facebook. But she could not recall how long she had done that; she acknowledged that she posted something to her Facebook page at 3:33 a.m. that morning.

61Around the time she was on Facebook, Ms. J remembered getting up to go to the bathroom and checking on D, as is her habit. She testified that he was asleep in his bed, and at that point, she left their respective bedroom doors open. At that time, Ms. J testified that she believed Mr. Smart was downstairs and still doing his laundry because she could smell the exhaust from the dryer, as it was not appropriately vented. At that point, she got up and headed downstairs to complain about the odour to Mr. Smart.

62Initially, Mr. Smart responded to her complaint by yelling. However, Mr. Smart soon calmed down and suggested they have sex. Ms. J testified that she rebuffed his advance, telling him: "No, that's no longer our situation. I'm not attracted to you. You need to leave in the morning." She testified that this upset Mr. Smart, who raised his voice and called her a "bitch" and other names as she started going upstairs. Once upstairs, she closed D's door so that the noise would not wake him.

63She then went inside her bedroom and closed her door. Despite this, she could still hear Mr. Smart saying things. He mentioned Ms. J's past boyfriends and that she was leaving him, and something about not realizing he could not change her. During this exchange, she testified that he mentioned her past work as an exotic dancer and called her a "whore." Despite Mr. Smart speaking loudly, D did not wake up. She responded sarcastically to his hurtful comments, saying: "I guess that is what I am. I guess I'm not meant to be loved."

64Ms. J testified that she eventually heard Mr. Smart moving around the house while she remained in bed. It sounded like he was going down to the basement, which she assumed was to do his laundry. She also heard him come upstairs to the second floor and use the bathroom a few times. She could hear the water running and thought he might have taken a shower.

65During one of Mr. Smart's visits to the bathroom, she heard him ostensibly speaking to someone on the phone. He spoke loudly enough for her to hear, saying something about being picked up or picking someone up, where he would be moving and commenting about being able to bring women there. However, Ms. J assumed that all of this was just for her benefit in an attempt to upset her.

66After that, Ms. J testified that she fell in and out of sleep, waking up when she heard movement downstairs. At some point, she remembered eventually falling asleep. Asked at approximately what time she fell asleep, she testified, "Maybe, like 4:00 a.m. I'm not sure."

67Ms. J testified that her next memory was waking to the sound of fidgeting coming from downstairs. Then, she heard a crunching sound and thought Mr. Smart was eating D's snacks. So, she got up and went to the top of the stairs, yelled down to Mr. Smart to ask what he was doing, and said, "You better not be down there eating anything. You're not welcome here. You're leaving in the morning." He responded by yelling back from the main floor, "Holy fuck. Just eating ice."

68After that, Ms. J went back into her bedroom; she did not check on D before doing so. His bedroom door was still closed at that point. Ms. J testified that she laid back down on her bed once back in her bedroom.

69Ms. J testified that she next remembers waking up from the sound of the front door unlocking while simultaneously hearing Mr. Smart cough. However, she could not say what time that happened during her evidence. Although Ms. J acknowledged having said in a statement to police that it was "probably around four o'clock." She explained using the word "probably" because she was uncertain of the time and that it "was just an estimate." After hearing the unlocking sound and the cough, she got up and went to the top of the stairs and yelled down to Mr. Smart, "What are you doing?" and heard him cough before responding, "Nothing." She testified that he was not in the basement when he said that because his voice did not sound that distant. She yelled down to him, "No in-and-outs," and "get your laundry done. You're stressing me out."

70Ms. J testified that, at that point, from the top of the stairs, looking down to the front door, she could see that the lock on the front door was not fully engaged. She testified that she had locked the door properly before going to bed and insisted that she always did so. Ms. J assumed that Mr. Smart had gone outside to have a cigarette and decided to go back to bed. Initially, she testified that she did not check on D at that point and could not recall whether his bedroom door was open or closed. However, during cross-examination, she testified to being unable to remember whether she checked on him then. Finally, Ms. J testified that she went into her bedroom and shut the door.

71Ms. J again laid down in her bed. However, she could not recall whether she fell back to sleep. Her next memory is of smelling a chemical odour, like that from a cleaning product. She got up to investigate and went downstairs. She found Mr. Smart in the living room. Ms. J testified that he was wide-eyed and covered in sweat; there was a towel next to him. She asked Mr. Smart about the smell, and he told her he had been cleaning a shirt. But the odour did not smell like laundry detergent to her.

72Ms. J testified that she then went into the kitchen and opened the cupboard beneath the sink, demanding to know what Mr. Smart had been using that generated the odour. He said the Pine-Sol; there were soap suds in the kitchen sink. (Police located an almost empty bottle of Pine-Sol in the cupboard beneath the kitchen sink when they searched the house later that day.)

73Ms. J testified that it upset her that Mr. Smart was using her Pine-Sol when there was laundry soap downstairs, and she had not told him he could use anything else. Frustrated, she testified to going to the basement to find the shirt. Ms. J testified that she did not detect the same chemical smell in the basement.

74In the basement, Ms. J did not locate the shirt Mr. Smart claimed to have been cleaning. However, she testified to finding a homemade "crack pipe," made from a hollowed-out burnt Crayola marker, inside a Heineken box, beneath some tin foil. (Photos of the basement taken by the police the next day show a Heineken box, although the police, who entered the residence under the authority of a search warrant, were not authorized to look for drug paraphernalia, and the officers involved in the search did not recall seeing any.)

75According to Ms. J, she became angry after finding the crack pipe, and she took it up to the main floor. At that point, she testified that the front door looked different; a pair of shoes belonging to Mr. Smart that she had tripped over earlier in the night were no longer on the carpet by the door. She was mad and yelling and told Mr. Smart while holding the crack pipe, "This is why you no longer have till 9:00 a.m. You need to leave now." She testified that Mr. Smart did not argue as he had earlier that night. Instead, he seemed shocked and apologetic about the suds in the sink, washing his hands as if trying to clear the suds. Finally, he responded that he was leaving.

76To disengage from Mr. Smart, Ms. J testified that she decided to go back upstairs. Once there, she went into her bedroom, slammed the door out of frustration, and then laid down on her bed. However, she could not definitively say whether she fell back to sleep.

77At some point after that, Ms. J got up yet again to use the bathroom. She remembered that, by then, it was brighter outside than when she had last gone downstairs.

A child's screams in the night

78The most reliable evidence concerning when D exited the house on the morning of July 19, 2018, came from Mr. Kyere. At the time, he lived in a low-rise apartment building just adjacent to the townhouse complex where Ms. J and D resided.

79Mr. Kyere testified that he wakes up every day at 4:00 a.m. to pray and that he did so on July 19, 2018. After waking up, he testified that he looked at his phone and, as a result, he was confident of the time.

80Mr. Kyere testified that his prayers take an hour to complete, give or take a minute. As a result, he would have finished his prayers at approximately 5:00 a.m.

81After praying, Mr. Kyere laid down on his bed to try and fall back asleep. Instead, however, he heard a child's voice repeatedly screaming, "Mommy, mommy, mommy." Initially, the voice sounded like it was coming from the playground, located just at the top of Ms. J’s street, between her townhouse and the green space that the railway tracks cut through, where police later found D.

82Mr. Kyere did not get out of bed to investigate the sound because he assumed it was a child who wanted to play, arguing with a parent who insisted they leave the playground.

83Mr. Kyere testified that the screaming grew fainter and more distant until it finally stopped.

84Initially, Mr. Kyere testified he first heard the screaming within a "few minutes" of lying down after finishing his prayers. However, he later estimated that it was 20 to 30 minutes later when he first heard it. Unfortunately, Mr. Kyere did not look at the clock after returning to bed and hearing the screaming.

85Mr. Kyere estimated that "about" 20 to 30 minutes after the screaming stopped, he heard sirens and a helicopter and got up to investigate by looking out his window. He saw police everywhere and realized the screaming he heard might be related to their presence in the area.

86I do not doubt that the child that Mr. Kyere heard screaming that morning was D. Mr. Kyere's evidence suggests that D exited the residence sometime after 5:00 a.m. However, his testimony does not provide any certainty concerning when the assault started or ended.

The dog did not bark

87In July 2018, Ms. J had a Chihuahua. She testified that the dog ordinarily slept on a dog bed in D's bedroom, and that was where it slept the night D went missing. Ms. J testified that when she discovered that D was not in his room, the dog was on his bed "like she knew something." Police officers who searched the house remembered seeing dog feces in D's bedroom, although none recalled seeing the dog.

88According to Ms. J, Ms. MacInnis, and Mr. Larue, the dog would bark without fail at every sound and at anyone it did not know. According to the next-door neighbour, she would hear the dog barking anytime anyone came to Ms. J's door. However, Ms. J testified that the dog did not bark at Mr. Smart or D because it knew them.

89That night, Ms. J testified that she did not hear the dog barking, even though she is a very light sleeper. Her next-door neighbour, who sleeps in the living room on her residence's main floor, also testified that she never heard the dog barking during the night.

Ms. J discovers that D is missing

90According to Ms. J, after getting up to use the bathroom, she decided to check on D. His door was closed, and she opened it. He was not in his bed. Asked what time that was, she testified: "I wanna say six."

91She then began searching the entire house for D, including the basement, even though D would never go down there. She was panicked and screaming his name.

92After realizing D was not anywhere in the house, she testified that she ran out the front door. Outside, she saw a neighbour and asked him if he had seen her son; he said he had not and asked what she meant. When she explained, he offered to call the police, and she asked him to do so. As a result, there was a call to 911 at 6:06 a.m.

93Ms. J then went back into her townhouse to search for D again. Within a minute, she was knocking frantically on the door of Ms. MacInnis and Mr. Larue, who quickly came outside. Other neighbours heard her screams and exited their homes. Soon, Ms. J and others from the neighbourhood began searching for D throughout the area.

The front door when Ms. J came downstairs

94Ms. J testified that she was sure that the front door was shut but not properly locked when she came downstairs after discovering that D was not in his bed. She testified to remembering opening the front door that morning.

95Statements Ms. J made to various witnesses soon after discovering D missing concerning the state of the front door were ruled admissible for their truth under the excited utterances exception to the hearsay rule. Ms. MacInnis testified that when she first spoke with Ms. J that morning, she had said that D was gone, and she was screaming that the "door was open." Mr. Larue testified that Ms. J had said: "The door was wide open." Additionally, Ms. J called her uncle on the telephone that morning and told him, "The door is wide open, and he's gone." Finally, only a short time later, Ms. J told Constable Harrower, the first police officer on the scene, that the front door was "unlocked" when she woke up.

96Ms. J was questioned, during cross-examination, about her statements to Ms. MacInnis, Mr. Larue and her uncle concerning the front door. Given her emotional condition at the time, she could not remember making any of those statements. However, by way of explanation, she testified that the door would have been open when she spoke to each of them. Further, she explained, "Maybe I meant that it was open as in it wasn't locked."

97Ultimately, I do not think much turns on whether the door was open or closed. However, for the sake of completeness, I find that the door was unlocked but closed for a few reasons.

98First, it seems unlikely that if Ms. J came downstairs after discovering that D was not in his bedroom and found the front door open, she would then search in the basement before going outside. An open door would readily suggest that D had gone outside. If the door were open, Ms. J would naturally have headed outside after not finding D upstairs or on the main floor, especially remembering that she testified that D never went down to the basement.

99Second, when Ms. J spoke with Ms. MacInnis, Mr. Larue, and her uncle, she was not merely excited but completely hysterical. That is hardly a state in which one might expect reliable reporting by a declarant; in such a condition, the risk of misstatement or exaggeration seems considerable.

100Finally, and most importantly, by the time she spoke with Constable Harrower, Ms. J had calmed down somewhat. At that point, D was still missing. And she was talking to a police officer who was there to help her find her son. Her motivation to be as accurate as possible in what she told police at that time would have been considerable.

101Accordingly, I find that when she came downstairs that morning, after discovering that D was missing, the front door was closed but unlocked.

Mr. Smart's conduct after D was discovered missing

102Ms. J testified that while she searched the house after discovering that D was not in his bed, Mr. Smart was seemingly sleeping on the couch in the living room. His eyes were closed, and he was not moving. She testified to screaming at him, telling him that she could not find D. However, she testified that he barely moved and responded calmly, "What do you mean?"

103Mr. Larue testified that after Ms. J banged on their door, he went over to her townhouse with Mr. Smart to search it. Mr. Smart followed him, and they both looked upstairs and on the main floor. However, Mr. Smart disappeared when Mr. Larue went down into the basement.

104Eventually, before the police arrived, Ms. J saw Mr. Smart outside amongst the crowd that had gathered. He was fully dressed but wearing different clothing from what he had on the night before. Ms. J testified that Mr. Smart approached her and asked: "Are the police coming because if they are, I can't be here." She took this as a reference to his bail conditions. According to Ms. J, she responded by telling him to "get the fuck away from me." Ms. MacInnis and Mr. Larue appear to have seen and heard that exchange between Ms. J and Mr. Smart.

105Ms. J, Ms. MacInnis, Mr. Larue, and Mr. Fry each testified that they never saw Mr. Smart participating in the search. At some point, when Mr. Larue said to Mr. Smart that he would drive over to a nearby park and a school to look for D, he testified that Mr. Smart responded that he had already looked there. That struck Mr. Larue as somewhat implausible because he did not think Mr. Smart would have had enough time to walk to that location. As a result, Mr. Larue still drove to the area of the park and the school to look for D.

106Ms. MacInnis testified that amidst the chaos that morning, Mr. Smart approached her and asked if she would write a letter saying that he had been staying at her house that night. She understood that he needed the letter because of his bail conditions. Ms. MacInnis agreed to do so, stepped inside her house, and wrote a note on a piece of paper using a pen. Together, they went into her backyard, he asked for a glass of water, and she gave him one. She testified that he was "quiet and panicked." She then left him in her backyard.

107Ms. MacInnis testified that she returned to the backyard to ask Mr. Smart a question at Ms. J's instigation. She asked him what he was doing with the Pine-Sol. He responded that he was cleaning his shoes. Ms. MacInnis then left her backyard to join Ms. J, leaving Mr. Smart there.

108Eventually, Mr. Larue and Mr. Fry joined Mr. Smart in their backyard. They found him sitting on a lawn chair, charging his phone, and texting. Mr. Larue testified that Mr. Smart seemed fidgety, as though he was "coming off of some drug or something." That corresponds with Mr. Fry's description of Mr. Smart seeming "a little bit off," "a bit out of it," and "distracted." At some point, Mr. Fry left the backyard, leaving Mr. Larue and Mr. Smart alone.

109Mr. Larue testified that he asked Mr. Smart whether he had any clue what happened. At that point, Mr. Smart teared up and said he did not know and that D "would not have done this, run away like this." Mr. Larue then left Mr. Smart in the backyard.

110Eventually, after police found D and the ambulance had attended, Mr. Larue, Ms. MacInnis, and Mr. Fry all returned to their backyard. Mr. Smart was still there. They told him D was found and going to the hospital by ambulance. Mr. Smart responded by asking them which hospital and immediately getting up and leaving. There was no evidence that Mr. Smart asked them where D was found or whether he was seriously injured.

111Shortly after 8:00 a.m., once Ms. J had provided her initial statement to police, a radio message went out to officers that Mr. Smart was arrestable for attempted murder. Within a minute of hearing that, Constable Harrower, who was familiar with Mr. Smart, saw him walking down a hallway at Brampton Civic Hospital and placed him under arrest.

The Adidas shoes and the pattern bruising on D's face

112Ms. J testified that Mr. Smart had three or four pairs of shoes at her house. Asked to describe his various shoes, she did. Her descriptions matched the footwear police recovered from Ms. J's townhouse during their investigation and the shoes that Mr. Smart was wearing when arrested. Shown photos of each of these pairs of shoes, Ms. J identified them all as belonging to Mr. Smart.

113Ms. J described one pair of shoes as "black-and-red with a chunky tongue." She identified these from a photo police took on July 19, 2018, showing her washing machine with its front door open and a load of wet laundry inside. The shoes are visible in that photograph. Police seized the contents of the washing machine, including the pair of red and black Adidas high-top running shoes, size 11, which became an exhibit at trial. The photograph of the Adidas shoes in the washing machine shows their laces threaded through all the available holes right to the very top.

114In the washing machine, police also found a pair of blue canvas Converse sneakers that Ms. J identified as belonging to Mr. Smart. Although these shoes did not become a trial exhibit, photos of them did. From a photograph of the bottom of the shoes, one can see that they are size 9. A picture taken of the tops of the shoes shows the laces threaded very loosely.

115On arrest, Mr. Smart wore a pair of black Nike shoes size 9.5, which police also seized. Although these shoes have holes for laces, Mr. Smart wore them without any. These shoes also became an exhibit at trial.

116Finally, in Ms. J's townhouse, on the floor in the basement, police found and seized a pair of blue suede Jordans, size 8, also in a high-top style. Ms. J testified these shoes belonged to Mr. Smart. Although these shoes had laces, they were not looped through the top two holes and laced as loosely as possible.

117Ultimately, I am satisfied that the Adidas shoes belonged to Mr. Smart for several reasons. First, Ms. J testified that they were his shoes.

118Second, police found the Adidas shoes in the washing machine, which also contained a distinctive black Wu-Tang pullover that both Mr. Larue and Mr. Fry testified Mr. Smart was wearing on the evening of July 18, 2018. The other items in the washer are consistent with things that Mr. Smart could have worn, given their styling and sizing. All that evidence supports a finding that the washing machine contained a load of Mr. Smart's still wet laundry.

119Third, after carefully examining the three pairs of shoes that became exhibits, I am satisfied that the same person could have worn each, despite their different sizes.

120Finally, there is no evidence to suggest that anyone other than Ms. J, D and Mr. Smart were staying at the townhouse.

121Given all of this, I find that the Adidas high-top running shoes belonged to Mr. Smart.

122Dr. Cho, a pediatrician at SickKids Hospital in Toronto, was qualified to give expert opinion evidence in pediatric medicine and the evaluation and interpretation of injuries involving the maltreatment of children. She was involved in documenting and assessing D's injuries after his transfer to SickKids from Brampton Civic Hospital.

123Among the various injuries D sustained, Dr. Cho testified he had pattern bruising on his head and neck. That included two areas of pattern bruising on his left cheek. Dr. Cho testified that pattern bruising results from the impact of an object with a particular pattern surface. And that the mechanism that causes the bruising will have a corresponding pattern. However, the bruising will not permit one to determine the specific object that caused it.

124The police documented the pattern bruising on D's left cheek by taking photographs. A colour photograph showing the bruising on D's left cheek was made an exhibit, along with a black and white version of that same photo. In these photographs, one can clearly see a diamond-shaped cross-hatching pattern of bruising on D's left cheek.

125Additionally, the Adidas shoes have a pattern on their soles similar to the diamond-shaped cross-hatching pattern visible on D's cheek. However, there is no evidence before the court that the Adidas shoes that belonged to Mr. Smart caused the bruising observed on D's left cheek. Nevertheless, the court is undoubtedly permitted to look at both patterns and recognize what anyone can see; they appear to be identical patterns.

126Nevertheless, it deserves mentioning that the court does not have evidence concerning how many pairs of the same shoes Adidas distributed in Ontario before July 2018. Also, there is no evidence whether other makes of shoes manufactured by Adidas or other footwear companies have a similar diamond-shaped cross-hatching pattern on their soles. Further, there is no evidence whether any other objects might share a similar diamond-shaped cross-hatching pattern.

127Finally, it also warrants mention that the Adidas shoes were subject to forensic testing. One of the police officers who dealt with D at the scene that morning testified that he had blood all over his mouth and nose. Despite this, the exterior surfaces of the Adidas shoes did not test positive for blood, and there was no testing for blood done inside of them. However, Ms. Cox, the forensic biologist from the Centre of Forensic Sciences, qualified as a DNA expert, testified that washing an item made of fabric, like the upper portions of the Adidas shoes, could reduce, if not eliminate, any bodily fluid stain.

The DNA evidence

128Various items of physical evidence collected during the police investigation were subject to DNA testing.

129As noted, the red Adidas shoes were subject to forensic testing. That included picking out debris from the soles of the shoes, resulting in finding two human hair fragments wedged in the sole of the right shoe. These hair fragments were subject to mitochondrial DNA analysis. Mitochondrial DNA is inherited from and shared with a person's mother. For one of the hairs, the analysis could not exclude D, or anyone from his matrilineal line (for example, Ms. J), as the contributor. Statistically, two in 10,000 people could share the same mitochondrial DNA.

130Between 10:30 a.m. and 11:00 a.m., on July 19, 2018, police seized the clothing Mr. Smart was wearing when he was arrested, and they collected potential trace evidence from his hands.

131When arrested, Mr. Smart had on white-ankle socks, and they were seized and submitted for forensic analysis. A red stain on the elasticized portion at the top of one of the socks tested positive for blood. That area of staining was subject to nuclear DNA testing. It generated a major DNA profile, and D could not be excluded as the source. Moreover, the probability that a randomly selected individual unrelated to D would share the observed DNA profile was estimated to be one in more than one trillion. All that evidence supports a finding that D's blood was on one of Mr. Smart's socks when he was arrested on July 19, 2018.

132However, Ms. Cox acknowledged that it was impossible to say when or how the blood made it onto the socks. Furthermore, she testified that if an item has gone unwashed, a bloodstain could persist on fabric for weeks or months. In that regard, it deserves mention that the socks, which became an exhibit at trial, appear to be very worn and dirty.

133Mr. Smart's fingernail clippings from both hands were also forensically examined. No blood-like staining was visible on the clippings when examined under a microscope. However, the clippings from each hand were swabbed separately and subjected to nuclear DNA testing. The fingernail clippings from Mr. Smart's right hand generated a mixture of DNA from two people.

134An unknown profile, which was the same as the profile generated from his left-hand clippings, was assumed to be Mr. Smart's DNA. And a second male profile (STR Profile Two), for which D could not be excluded as the source. The statistical probability of some person other than D being the source is the same as it was for the DNA on the socks, one in a trillion. All that evidence supports a finding that Mr. Smart had D's DNA embedded beneath the nails of his right hand following his arrest on July 19, 2018.

135Blood was unlikely the source of D's DNA under Mr. Smart's nails because when viewed under the microscope, there was no blood-like substance visible on the clippings. Other potential sources of D's DNA include skin cells or bodily fluids, like mucus or saliva.

136Ms. Cox testified that it is not uncommon to have other people's DNA under one's nails at some low level. However, she maintained that it is not common to have a good quality sample of another person's DNA under one's nails. STR Profile Two was a good quality sample, meaning it generated results at all 15 locations across the DNA targeted by the testing.

137Ms. Cox testified regarding a study conducted by the Centre for Forensic Sciences that attempted to determine how long foreign DNA will persist under a person's nails. The study was published in a peer-reviewed journal: see Melinda Matte et al., "Prevalence and persistence of foreign DNA beneath fingernails" (2012) Forensic Science International: Genetics Volume 6, Issue 2, 236-243. Study participants scratched another person's arms, and DNA samples were immediately collected to serve as a control. Then, after a full day's activities, further samples were collected six hours later. In most instances, the foreign DNA was not present after six hours. It only persisted in ten percent of cases, and in those instances, it only existed at low levels and did not generate a full DNA profile.

138However, Ms. Cox acknowledged that the authors of that study also recognized that it was not uncommon for the foreign DNA of a child to be present with high-level profiles beneath the fingernails of couples in a caregiving relationship to that child. She assumed that was a reference to toddlers but could not say for sure if that is the age of children the study's authors had in mind.

139Ms. Cox further testified that many variables could impact how long foreign DNA will persist under a person's fingernails, including hand hygiene and the source of the DNA. For example, bodily fluids are a richer source of DNA than skin cells and are more likely to persist longer.

140Counsel put alternative hypotheticals to Ms. Cox during her testimony. Defence counsel asked her to assume that there was a deposit of D's DNA under Mr. Smart's nails between 1:30 a.m. and 2:00 a.m. when they engaged in horseplay. Mr. Smart then slept until 6:00 a.m., got up, and engaged in ordinary activities. Defence counsel asked if D's DNA could be present under Mr. Smart's nails in these circumstances between 10:30 a.m. and 11:00 a.m. when samples are collected. Ms. Cox testified that if the deposit of DNA came from a bodily fluid rather than skin cells, the hypothetical could account for the results under the fingernails.

141The Crown put a different hypothetical to Ms. Cox, asking her to assume that there was a deposit of D's bodily fluid beneath Mr. Smart's nails between 4:00 a.m. and 6:00 a.m. After that, Mr. Smart washed his hands without cleaning carefully under his nails. Finally, at around 10:50 a.m., samples were collected. Ms. Cox responded that this scenario could also account for D's DNA underneath Mr. Smart's fingernails.

III. Law and Analysis

142With the evidence summarized and having made at least some discrete findings concerning certain aspects of the evidence, this part considers the ultimate issue the court must decide. Whether the Crown has proven beyond a reasonable doubt that Mr. Smart was the person who attempted to kill D by brutally assaulting him. Before turning to the determination of that issue, some caveats are necessary.

1. Self-Direction Concerning the Use of Certain Evidence

143There are two areas in which the court must recognize the need for caution concerning its use of certain evidence.

The limited use of the "bad character" evidence

144The Crown did not apply to introduce evidence of uncharged discreditable conduct by Mr. Smart. Nevertheless, a fair amount of such evidence unavoidably formed part of the narrative in this case. At the same time, some of it seeped in during the trial without objection.

145First, in explaining why their relationship ended, Ms. J cited Mr. Smart's use of illegal drugs. The breakdown in the relationship between Ms. J and Mr. Smart is relevant to Mr. Smart's potential motive to harm D. Such evidence also formed part of Ms. J's narrative of the events on the morning D went missing; recall her evidence about finding the makeshift crack pipe.

146Second, because Mr. Smart faces a charge of breaching a recognizance, the information connected to that bail order became an exhibit. It unavoidably discloses that in 2017, Mr. Smart was arrested and charged with attempted murder, aggravated assault, and two counts of mischief to property.

147Third, Ms. MacInnis's testimony that Mr. Smart asked her to write him a letter the morning D went missing reflects negatively on his character because it is arguably evidence of him attempting to obstruct justice. Nevertheless, that evidence formed part of Mr. Smart's after-the-fact conduct that the Crown relies upon in its effort to prove his guilt.

148Fourth, Ms. J referred to Mr. Smart spending time in jail when asked whether he was a heavy or light sleeper to explain why he was a light sleeper.

149Finally, Constable Harrower, in testifying about arresting Mr. Smart on July 19, 2018, explained that he recognized him at the hospital because he had dealt with him before while working as the cells officer at 22 Division. That evidence suggests that Mr. Smart had been previously arrested. Constable Harrower provided that evidence without prompting when asked about his arrest of Mr. Smart in this case.

150Despite none of this evidence being the subject of any ruling concerning its admissibility, most of it, if not all, was admissible. That is because it unavoidably formed part of the narrative or was otherwise relevant to the issues in this case. In both circumstances, it was more probative than prejudicial and admissible. Consequently, it is not surprising that experienced and capable defence counsel did not object to the admission of any of this evidence.

151Nevertheless, I have catalogued the extraneous evidence that reflected negatively on Mr. Smart's character and why it was admissible to confirm my appreciation of the limited use I can make of it: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 70; R. v. Rulli (1999), 1999 CanLII 3712 (ON CA), 172 D.L.R. (4th) 668 (Ont. C.A.), at para. 15.

152Similarly, I am mindful of the potential for prejudice that such evidence can occasion and the need to guard against it improperly influencing my judgment. In short, I cannot allow that evidence to result in a conviction for the wrong reasons. For example, to punish Mr. Smart for uncharged acts of misconduct or to infer that he was the person who attempted to murder D because that evidence shows him to be "the sort of person" who would: see R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 735; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at p. 380; R. v. C.B. (2003), 2003 CanLII 32894 (ON CA), 167 O.A.C. 264 (C.A.), at para. 35.

153Allowing the bad character evidence to influence my assessment of the Crown's case against Mr. Smart in these impermissible ways would constitute a serious error and undermine his right to a fair trial.

The limited use of Ms. J's prior consistent statements

154The court heard evidence, without objection, concerning Ms. J's statements to other witnesses about the state of her relationship with Mr. Smart before July 19, 2018. And evidence concerning utterances she made to other witnesses that day about the state of her front door after she discovered D missing. Only the latter statements were ruled admissible for their truth as excited utterances under that categorical exception to the hearsay rule.

155As a general rule, a witness's prior consistent statements are inadmissible when offered by the party who called the witness. The rationale for the exclusionary rule is that such statements lack probative value given the witness's courtroom testimony, are self-serving, and constitute hearsay: R v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 34.

156However, the exclusionary rule is subject to some well-established exceptions, including where the evidence serves to rebut an allegation of recent fabrication. Where a party alleges that a witness fabricated their evidence after a particular event, the opposing party can elicit consistent statements made by the witness before that event to help neutralize the allegation of "recent fabrication": see R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at paras. 32-33; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

157In this case, the defence contends that Ms. J's account of the relevant events, including the details of her relationship with Mr. Smart, cannot be trusted. The defence expressly alleged and also implied that after what happened to D, Ms. J skewed her account of events to implicate Mr. Smart because she unjustifiably blamed him and wanted to divert police attention away from her involvement in the drug trade. In these circumstances, the things that Ms. J said to other witnesses before D's disappearance concerning her relationship with Mr. Smart were admissible to the extent that they served to rebut that allegation.

158However, Ms. J's statements to other witnesses before July 19, 2018, can only be put to limited use. First, "it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth": Stirling, at para. 7. Second, it constitutes an error to use the witness's prior consistent statement as corroborating their in-court testimony: Dinardo, at para. 40; K.T., at para. 68; R. v. A.S., 2020 ONCA 229, at para. 52.

159I note all of this to demonstrate my appreciation of the limited use that I can make of any evidence concerning Ms. J's prior consistent statements.

2. Has the Crown Proven Beyond a Reasonable Doubt that Mr. Smart is the Person Who Assaulted and Attempted to Murder D?

160As the review of the evidence undertaken above should make apparent, the Crown's case against Mr. Smart is entirely circumstantial. Thankfully, the Supreme Court of Canada has provided invaluable guidance on applying the proof beyond a reasonable doubt standard in such cases.

The Governing Principles

161In Villaroman, the Supreme Court explained that in a case in which proof of one or more elements of the offence depends exclusively or mainly on circumstantial evidence, for the trier of fact to return a guilty verdict, an inference of guilt must be the only reasonable inference the evidence permits: Villaroman, at para. 30.

162Accordingly, the trier of fact must consider other plausible theories and reasonable possibilities inconsistent with guilt that arise from the evidence or a lack of evidence: Villaroman, at paras. 30, 35-37. The Crown's case must neutralize such alternative interpretations of the circumstantial evidence for the accused to be found guilty: Villaroman, at para. 37. However, the Crown is not required to negate "every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8, see also Villaroman, at para. 37. Other plausible theories or reasonable possibilities "must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation": Villaroman, at para. 37.

163In Villaroman, the Supreme Court acknowledged that the distinction between what constitutes a "plausible theory" and what amounts to "speculation" is not always clear. Nevertheless, it explained that the "basic question" for the trier of fact "is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty": Villaroman, at para. 38.

164Stated differently, it explained the dividing line between plausible theories and speculation by noting "that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative": Villaroman, at para. 41.

165The Supreme Court cautioned that the trier of fact "should not act on alternative interpretations of the circumstances that it considers to be unreasonable and that alternative inferences must be reasonable, not just possible": Villaroman, at para. 42.

166Ultimately, the Supreme Court observed "that it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation": Villaroman, at para. 71.

167When assessing circumstantial evidence and deciding whether it furnishes a reasonable inference of guilt, the trier of fact must consider and weigh its cumulative effect. As Watt J.A. explained in R v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 70:

The assessment of circumstantial evidence, whether by triers of fact at first instance or by an appellate court on a review for unreasonableness, does not involve an examination of individual items of circumstantial evidence in isolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are found wanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks of proof, not the final product. It is commonplace that individual items of evidence adduced by the Crown examined separately and in isolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is the whole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.

168These reasons turn next to assessing the circumstantial evidence mindful of the governing principles.

Does the Evidence Reasonably Support an Inference of Guilt?

169Having considered all the evidence carefully and after weighing its cumulative effect, I am satisfied that it reasonably furnishes a compelling inference that Mr. Smart is the person who attempted to murder D by brutally assaulting him. That conclusion deserves some brief explanation.

- Motive

170It is incomprehensible that anyone could ever have a "motive" to harm a child. The evidence demonstrates that Mr. Smart had a genuine bond with D and real affection for him, and that D truly loved Mr. Smart. Against that backdrop, one is hard-pressed to understand why Mr. Smart would deliberately harm D.

171However, the evidence also establishes that the relationship between Mr. Smart and Ms. J had come apart. In the days preceding July 19, 2018, the tension was building between them, with Ms. J insisting that Mr. Smart leave her residence and him trying to postpone his departure. By the evening of July 18, Ms. J had set a deadline for Mr. Smart to leave by the very next day. It is not only Ms. J's evidence that establishes this. It also finds support in the testimony of Ms. J's neighbours.

172Shortly before July 19, 2018, Ms. J's next-door neighbour discovered Mr. Smart in Ms. J's backyard. He told the neighbour that he and Ms. J were not getting along, and he was staying in the backyard to avoid them fighting.

173Mr. Larue heard Mr. Smart and Ms. J arguing on the evening of July 18. After that, Mr. Smart came to his backyard, and they spoke. Mr. Smart was upset and complained about Ms. J wanting him to move out.

174Throughout the following morning, Ms. J and Mr. Smart intermittently argued. Ms. J described the increasingly caustic exchanges between them as the night progressed. At one point, he told her she was selfish and only cared about herself and her son. Later, he referenced her past work as an exotic dancer and called her a "whore." During a later exchange, he called her a "bitch."

175That Mr. Smart and Ms. J fought during that night finds support in the evidence of her next-door neighbour. She heard them arguing, including, at one point, Ms. J saying "just leave" or "just please leave." The neighbour recalled hearing this late at night, but she could not reliably fix the time.

176The breakdown in the relationship, Ms. J's refusal to continue in it, her rebuffing of his sexual advances, and her insistence that Mr. Smart leave her residence provided him with reason to be angry with her. If, because of that, Mr. Smart wanted to hurt Ms. J, harming D would undoubtedly achieve that goal. The evidence at trial unquestionably established that Ms. J, as her uncle put it, "loves D more than life itself."

177Tragic experience demonstrates that, on occasion, anger at a former partner can lead some people to harm that person's child. Reasoning in that way does not depend on impermissible stereotyping, as defence counsel suggested during submissions. Triers of fact are undoubtedly entitled to draw on their knowledge of human experience, including some of the most unfortunate realities of domestic violence, when reasoning with evidence: see R. v. JC, 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 65; R. v. L.L., 2022 ONCA 50, at para. 20.

178In short, the evidence logically supports an inference that Mr. Smart had a motive to harm D.

- Opportunity

179The evidence suggests that D was outside of Ms. J's townhouse after 5:00 a.m. and assaulted at some point after that. Given this, the defence contends that Mr. Smart could not have committed the crime based on Ms. J's chronology and timeline of the events on the early morning of July 19. Defence counsel submits that Ms. J's evidence effectively furnishes Mr. Smart with an alibi and proves his innocence.

180Ms. J provided very few temporal anchors in her description of the events on the morning of July 19. First, she testified that D fell asleep on the couch, watching a movie at "maybe 1:30 a.m." Then, she testified that, at "around two," "give or take," she took D to bed. Next, she acknowledged posting to Facebook at 3:33 a.m. Finally, she testified to hearing the front door unlock and the sound of Mr. Smart coughing "probably around four o'clock" and noted that "was just an estimate."

181However, Ms. MacInnis testified that Ms. J told her she woke up to the smell of Pine-Sol between 3:00 a.m. and 4:30 a.m. Defence counsel did not have the opportunity to put that statement to Ms. J because she refused to testify. Nevertheless, it was filed with other excerpts of Ms. J's prior-inconsistent statements, as permitted by the court's section 715(1) ruling. I will assume that it is admissible for its truth, most likely as an excited utterance.

182Mr. Moon relies on the combined effect of all that evidence to argue that Ms. J's evidence affords Mr. Smart an alibi. The Crown's theory is that when Ms. J woke up to the chemical smell, laid back down, and got back up to find D missing, D was already outside. He was lying in the bushes, beaten, and dying by that point. As a result, when Ms. J came downstairs, she found Mr. Smart after he had just finished cleaning up evidence of his crime. However, if that last visit downstairs by Ms. J happened before 4:30 a.m., and D, in fact, only left the townhouse after 5:00 a.m., the Crown's theory does not hold water.

183My principal difficulty with acceding to this interpretation of the evidence is that it depends on Ms. J's "timeline" concerning the chronology of events. The problem is it is apparent from her evidence that, although Ms. J was relatively confident about the morning's events and their chronology, she is far from certain concerning any of the times, which were all just very rough estimates. That is not surprising, as there is no evidence that Ms. J ever actually looked at a clock while the events on the morning of July 19 were unfolding. Further, because she described events separated by periods of disrupted sleep, she understandably had little conception of time when it came to when particular events occurred. Therefore, Ms. J's evidence concerning the timing of events does not give rise to reasonable doubt.

184The evidence overwhelmingly establishes that Mr. Smart had an opportunity to commit the crime. He was at the residence throughout the night and awake throughout most of it based on Ms. J's evidence. Furthermore, there were only three people in the townhouse, Mr. Smart, Ms. J, and D. Finally, although Ms. J would have had the opportunity to commit the crime, unlike Mr. Smart, there is no evidence of her having a motive to harm D. Quite the contrary.

185Throughout the night, Mr. Smart was in a position to take D away from the townhouse. Given that the dog was familiar with him, it would not bark upon him entering D's room. Further, because D loved and trusted Mr. Smart, he would have gone with him without protesting and cooperated to put on his shoes and follow Mr. Smart outside.

186As a result, the evidence logically supports an inference that Mr. Smart had the opportunity to commit the crime.

- Means

187On July 19, 2018, D was just five years old. He weighed only 48 ½ pounds. Mr. Smart is a non-disabled adult man. From a physical standpoint, he would have had no difficulty overpowering D and inflicting the extensive injuries he suffered in the brutal assault he endured.

188Amongst his extensive injuries, D had his jaw broken in two places. Dr. Cho testified that a punch, kick, or stomp could have caused this injury. That evidence, combined with the pattern of bruising observed on D's left cheek, which appears entirely consistent with the pattern one would find on the sole of a shoe, supports an inference that D's assailant stomped on his face.

189Critically, Mr. Smart's Adidas running shoes have the same diamond-shaped cross-hatching pattern on their soles as is visible in the pattern bruising on D's face. In other words, Mr. Smart had the very type of shoes that would have left the kind of pattern observed in the bruising on D's left cheek.

190Based on the evidence, Mr. Smart had the means to commit the crime.

- DNA Evidence

191Ultimately, the DNA evidence relating to the hair fragment wedged in the Adidas shoe and the blood on Mr. Smart's sock does not meaningfully advance the circumstantial case against him.

192If Mr. Smart assaulted D while wearing the Adidas shoes, it would be rather unlikely that D's blood would have made it onto his socks. The Adidas are high tops, and the sock that had blood on it is an ankle sock. As a result, if Mr. Smart had been wearing those socks with the Adidas shoes, it is hard to imagine how blood could have gotten onto the sock during the assault. Instead, there would need to have been blood on the shoes. And, somehow, the sock came in contact with the blood on the shoe after the assault. For example, when the shoes were removed. However, a forensic examination did not detect any blood on the outside of the shoes. It could be that the washing of the shoes eliminated any trace of the blood on the shoes. This scenario could potentially explain the blood on the sock and its absence from the outside of the shoes.

193Nevertheless, given that Mr. Smart periodically lived at Ms. J's residence and had frequent physical contact with D, it seems far more likely that D's blood was deposited on the sock at some earlier time and not during the assault. Additionally, as mentioned above, the socks appeared worn and dirty, suggesting that they had not been washed in quite some time.

194The hair fragment wedged in the sole of the right Adidas shoe, which undoubtedly came from D or Ms. J, attracts a very similar analysis. Ultimately, because Mr. Smart resided at Ms. J's residence, the hair fragment could have been deposited days, weeks, or months before the assault. Therefore, it too carries very little, if any, incriminating weight.

195In contrast, D's DNA beneath the fingernails of Mr. Smart's righthand furnishes a much more powerful forensic connection between him and the crime. Of course, D's DNA could have found its way underneath Mr. Smart's fingernails at 1:30 a.m. from their playfighting. However, on the evidence, it seems rather unlikely that it would have still been present in a sufficient quantity between 10:30 a.m. and 11:00 a.m. to furnish a good quality sample. That is, to generate results at all 15 locations across the DNA targeted by the testing, as it did, especially given the evidence that Mr. Smart did not go to bed after he finished playfighting with D. Instead, he was up all night, doing laundry, using the bathroom, possibly showering, and washing something in the kitchen sink with Pine-Sol (either his shirt or shoes; he said his shirt to Ms. J and his shoes to Ms. MacInnis).

196The DNA results from Mr. Smart's righthand nail clippings provide compelling evidence that he had physical contact with D after they were playfighting at around 1:30 a.m.

- After-the-Fact Conduct

197Much of Mr. Smart's conduct after Ms. J discovered D was missing is entirely consistent with him attempting to avoid being arrested for breaching his recognizance. His comments to Ms. J suggest that that was his preoccupation that morning, as does his request for Ms. MacInnis to write him a letter for purposes of his bail. His failure to participate in the search can be explained similarly, given that the police were on their way. And finally, Mr. Smart's decision to hide in the MacInnis / Larue backyard can be explained by the same motivation.

198However, his bail concerns do not explain his failure to ask where D was found or why he required an ambulance. These would be natural and obvious questions for Mr. Smart to ask in the circumstances unless he already knew the answers. His apparent failure to do so, in my view, provides some evidence of his involvement in the crime.

199Although Mr. Fry testified that word quickly spread throughout the townhouse complex concerning D having been found and that he was seriously injured, Mr. Smart was not moving about the complex. Instead, the evidence establishes that he was essentially hiding in the MacInnis / Larue backyard.

200In summary, the circumstantial evidence establishes that Mr. Smart had the motive, the opportunity, and the means to commit the crime. Additionally, DNA evidence reveals a connection between him and the crime. Finally, at least some of Mr. Smart's conduct after the fact is consistent with him being the person responsible.

201The circumstantial evidence, considered cumulatively, as required, supports a compelling inference that Mr. Smart is the person who attempted to murder D by brutally assaulting him.

Does the Evidence, or Lack of Evidence, Support a Reasonable Alternative Inference?

202The defence submits the court should find Mr. Smart not guilty because the circumstantial evidence is reasonably capable of supporting an inference that someone else was responsible for committing the crime. The defence posits an alternative scenario that it maintains is reasonably supported by the evidence and points away from Mr. Smart being the person responsible.

203Specifically, it contends that D, who had a close and loving relationship with Mr. Smart, after listening to Ms. J and Mr. Smart arguing all night, got up after both were asleep and left the house. He did so, either intending to run away or simply wanting to escape the conflict by going outside. Once there, he encountered some unknown person who victimized him.

204In arguing that the evidence reasonably supports this alternative theory and requires that the court find Mr. Smart not guilty, defence counsel made various submissions based on the evidence.

205First, Ms. J told numerous people that the front door was "wide open." That the door was open is consistent with D leaving the residence on his own.

206Second, when the police entered Ms. J's townhouse that morning, none of them saw the dog, suggesting that the dog was not in the residence. This is consistent with D getting up and leaving with the dog in tow.

207Third, although Ms. J testified that she told the officers who attended that morning that D would not go anywhere without her, a police officer attended two units in a nearby apartment building to look for D. Defence counsel submits that Ms. J must have suggested that police attend there, which supports an inference that D had at least some history of wandering away from home. If it were otherwise, why would Ms. J suggest they look for D there.

208Fourth, Mr. Kyere heard a child's voice repeatedly screaming, "Mommy, mommy, mommy." Had Mr. Smart been the person leading D away, wouldn't Mr. Kyere have heard D saying Mr. Smart's name and asking him why he was doing this to him? That supports an inference that Mr. Smart was not with him.

209Finally, aspects of Mr. Smart’s conduct after D went missing and later after police found him are consistent with his innocence. First, when Mr. Larue asked him if he had any idea what happened to D, Mr. Smart insisted that D would not have run away through teary eyes. Then, once he received word that D was going to the hospital by ambulance, Mr. Smart immediately headed there.

210Respectfully, I cannot agree that the evidence, or a lack of evidence, reasonably supports the alternate inference that the defence urges. One of the evidentiary building blocks upon which the defence prefaces its theory is not entirely fair to the record. At the same time, much of the evidence it depends on does not support the inferences that the defence submits the court should draw. Finally, a foundational pillar to the entire theory is bereft of any evidentiary support and relies entirely on speculation. I shall explain these shortcomings, in turn.

211First, for the reasons already detailed, the court found that after Ms. J discovered D missing, the front door was closed but unlocked when she came downstairs. Ultimately, nothing much turns on whether the door was open or closed. Even if he left the house on his own, D could have easily shut the door behind him. Alternatively, if Mr. Smart was the person responsible for what happened to D, he could have left the front door open to make it appear as though the boy had left the townhouse on his own. As a result, the state of the front door when Ms. J came downstairs that morning does little to assist in helping to decide the central issue in this case.

212Second, there is no evidence to suggest that anyone saw the dog outside on the morning of July 19, 2018. For example, no one testified that the dog was located at the crime scene or found roaming the townhouse complex. On the contrary, Ms. J testified that the dog was on D's bed when she entered his bedroom and discovered that he was missing. Although none of the police officers who entered the house early that morning remembered seeing the dog, that is not surprising. As Constable Harrower explained, "The dog never entered my mind." That is entirely understandable, given that the singular focus of the police would have been on locating a missing five-year-old child. Nevertheless, the police officers who went to the house that day recalled seeing dog feces, which Ms. J speculated was due to the dog's nerves. That is far from surprising, given the commotion in the house that morning after D was discovered missing. The evidence does not support an inference that the dog accompanied D when he exited the townhouse that morning.

213Third, Ms. J testified that D had never left the house at night alone. When a police officer asked her where D might go, she testified to responding, "Nowhere without me." When they asked if D had a favourite place, she told them, “With me." Although one of the officers did attend a nearby apartment building to look for D, she testified to doing so because Ms. J said that he had a friend in that building, not that he had ever gone there on his own. None of the evidence heard at trial suggests that D, who was just five years old, had ever wandered away from home on his own in the dark, let alone in the middle of the night.

214Fourth, although Mr. Kyere heard D screaming "mommy, mommy, mommy," I cannot agree that that furnishes an inference that Mr. Smart was not with him. Assuming that D would have pleaded with Mr. Smart once he realized he had some malevolent intention, he could have done so without the need to scream his name. After all, Mr. Smart would have been right there with him. What Mr. Kyere heard D saying suggests that whoever was with D was not receptive to his pleas and that he was calling out to Ms. J, who was not with him.

215Fifth, I agree that at least some of Mr. Smart's conduct while the search for D was underway and after police found him could suggest he was not the person responsible. First, he told Mr. Larue, through teary eyes, that D "would not have run away like this." Then, after word came that D had been found and was going to the hospital, Mr. Smart left and went to the hospital.

216However, that evidence does not foreclose Mr. Smart's involvement. After all, if he was the person responsible, possibly having committed the crime after ingesting a drug, remembering the evidence suggestive of his drug use that morning, then, by that point, his tears may have been more from regret than concern. Moreover, his comment that D would not run away and then him going to the hospital could have been little more than an effort to cast suspicion away from him. Consequently, from a logical standpoint, Mr. Smart’s teary eyes and his attendance at the hospital are far too ambiguous to support either an inference of innocence or guilt.

217Further, the most critical aspect of the alternate interpretation that the defence urges is entirely speculative. The notion that once outside the house, D encountered someone who, rather than assisting a young child they found out alone in the middle of the night, instead decided to murder him, is bereft of any evidentiary support. There is no evidence to suggest that in the summer of 2018, some deranged person was roaming the streets of Brampton, searching for young children to kill at random. Although the evidence suggested that Ms. J's neighbourhood had its fair share of problems and that some of its residents were not strangers to the police, that evidence falls far short of providing any foundation for the alternate inference urged by the defence. Ultimately, the Crown is not required to negate every fanciful possibility that a creative imagination might conceive.

218The notion that some unknown person happened upon D and decided to kill him, stomping on the little boy while wearing footwear that had a remarkably similar sole pattern to that found on Mr. Smart's Adidas, strikes me as extraordinarily implausible. It does not merely cross the line between reasonable inference and speculation; it leaps right over it.

219After carefully considering the cumulative effect of all the circumstantial evidence, there is only one reasonable inference that emerges, and it does so quite powerfully; Mr. Smart is the person who attempted to kill D by brutally assaulting him on the morning of July 19, 2018. Of that, I am satisfied beyond a reasonable doubt.

Conclusion

220Mr. Smart is found guilty of all three offences charged, attempted murder (count 1), aggravated assault (count 2), and failing to comply with a recognizance (count 3).