COURT FILE NOS.: CR-20-30000187-0000
CR-22-30000329-0000
DATE: 20220823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
P.B.
Ben Snow, for the Crown
Jeremy Naresh, for the Accused
HEARD: June 6, 7, 8, 9 and 21, 2022
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under sS. 486.4(2) and 486.4(2.2) of the Criminal Code of Canada
Croll J.
AMENDED
REASONS FOR JUDGMENT
Introduction
[1] P.B. is charged as follows:
(1) [P.B.], stands charged that he, between the 1st day of July in the year 2017 and the 31st day of July in the year 2017 at the City of Toronto in the Toronto Region did commit a sexual assault on [S.P.], contrary to Section 271 of the Criminal Code of Canada.
(2) [P.B.], stands charged that he, between the 1st day of December in the year 2017 and the 31st day of December in the year 2017 at the City of Toronto in the Toronto Region did commit an assault on [S.P.], contrary to Section 266 of the Criminal Code of Canada.
(3) [P.B.], stands charged that he, between the 1st day of February in the year 2018 and the 30th day of November in the year 2018 at the City of Toronto in the Toronto Region did commit an assault on [A.B.], contrary to Section 266 of the Criminal Code of Canada.
(4) [P.B.], stands charged that he, between the 1st day of November in the year 2018 and the 30th day of November in the year 2018 at the City of Toronto in the Toronto Region did, by word of mouth, knowingly utter a threat to cause bodily harm to [S.P.], contrary to Section 264.1 (1)(a) of the Criminal Code of Canada.
[2] S.P. is the common law spouse of P.B. They moved in together in 2005 and have two children together, A.B. and N.B.
[3] S.P. described a very difficult relationship with P.B. She stated that it had been that way since 2011, and that after 2017, she and P.B. no longer shared a bedroom. After 2017, S.P. lived on the main floor and P.B. lived in the basement of their home.
[4] It was S.P.’s evidence that P.B. was controlling and verbally abusive towards her. She described him frequently calling her names such as bitch, cunt, and terrorist. S.P. stated that P.B. drank regularly after work, and that the abuse escalated the more he drank. Both A.B. and N.B. gave evidence about the repugnant name calling by P.B. and his excessive drinking. According to S.P., there were repeated attendances by the police to the family home due to P.B.’s abusive yelling and screaming.
Count 1: Sexual Assault on S.P.
[5] According to S.P., she and P.B. were going to have consensual sexual intercourse on an evening in July 2017. It was her evidence that the intercourse began vaginally, which she described as normal. She stated that suddenly, P.B. penetrated her anally with his penis. It was her evidence that she said nothing at first, then told him to stop because it hurt, but that P.B. did not stop. S.P. stated that she tried to push P.B. away, and tried moving, but that she was unable to do so because P.B. was holding her hands. S.P. stated that she told P.B. to stop four or five times, that it was hurting her, and that his reply was that the hurt was “a sweet pain.” S.P. stated that after the intercourse, she went to the washroom and was bleeding.
[6] S.P. testified that the following day she told her neighbour Cecilia, who is a nurse, about her anal bleeding, and was advised by Cecilia to soak in a warm tub. S.P.’s injury then healed. S.P. did not tell Cecilia the reason she was bleeding.
[7] S.P. did not go to the police after this incident. She testified that that she was afraid for herself and her children. Her evidence was that in warning her not to speak of things that arose in the house, P.B. would reference a case where a man had killed his wife and was released from jail after five years, at which time he took the children.
Count 2: Assault on S.P.
[8] According to S.P., on an evening in late December 2017, P.B. had been drinking in the basement and yelling and screaming. He then came upstairs and into her bedroom, where she was with N.B. and A.B. While S.P. did not see P.B. drinking, she said that he smelled like alcohol when he was in her bedroom. She stated that P.B. began reviling her, including calling her a terrorist, a member of ISIS and telling her that she was lucky she was in Canada. S.P. was very upset, and her children were apparently holding her back. S.P. stated that during this tirade, P.B. spat twice on her face. According to S.P., after P.B. spat the first time, she asked him, “[d]id you just spit on my face?”, he answered “yes” and spat again. She described the first spit as staying on her face, and the second as a spray.
[9] On the night of the spitting allegations in December 2017, N.B. testified that she and A.B. were with their mother in her bedroom, and that her mother and father were having a verbal argument. Among other things, S.P. was asking P.B. why he was calling her terrible names and blasting his music so loudly that the children could not sleep. It was N.B.’s evidence that her father became so angry that he spit on S.P. She stated that the spitting occurred once that evening.
[10] A.B.’s evidence was that he had been watching television when he heard yelling and swearing coming from his parents’ bedroom. He stated that he ran into the bedroom, N.B. was there, and he saw P.B. at the doorway swearing at S.P. A.B. testified that in this argument, P.B. spit once, on the face of S.P.
[11] After the spitting incident, S.P. left the home to meet with her older daughter from another relationship. While driving home from this meeting, S.P. hit a guardrail and lost control of her car. S.P. was charged with impaired driving and driving while her blood alcohol level was over the legal limit. According to S.P., P.B. was very angry when she returned home from the police station, and that this was when he began sleeping downstairs full time.
[12] The evidence about the drinking and driving charges only came to light during S.P.’s cross-examination. That said, S.P. acknowledged these charges and stated that she has not had a drink since that night. She described it as the biggest mistake of her life and that the accident has taught her a lesson. She explained that she did not reveal the charges during her evidence-in-chief because she had not been asked about them. S.P. was not convicted of the drinking and driving charges but was convicted of careless driving under the Highway Traffic Act, R.S.O. 1990, c. H.8.
Count 3: Assault on A.B.
[13] A.B. described an incident that occurred in the summer or fall when he was 11 or 12 years old, which would put the incident in 2017 or 2018.
[14] A.B. stated that he and P.B. were having an argument in the basement about A.B.’s iPad, and that P.B. grabbed him, threw him, and hit him one to two times. In the police statement which A.B. adopted pursuant to s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46, he described P.B. holding him up by the neck area. His evidence was that P.B. gave him a hard hit with a closed fist in his face area, and an open hand slap on his arm. According to A.B., while P.B. was pinning him down on the mattress, his sister N.B. ran naked out of the shower, saw one of the hits imposed by P.B., and broke them apart.
[15] A.B. stated that his arm turned red, that there was red on the side of his cheek, that the redness did not last too long, and the redness did not form a purple or blue bruise.
[16] It was A.B.’s evidence that he told S.P. about the incident the following day, and although she suggested calling the police, A.B. did not want to as he did not want to see his father arrested.
[17] N.B. described the altercation between her father and her brother in some detail. She stated that she and A.B. had returned from a happy outing at Canada’s Wonderland with friends, and that A.B. had won a hat with a rainbow decoration. According to N.B., this angered P.B., as he associated the rainbow with homosexuality, and he began calling A.B. gay and a faggot, and threw the hat away. N.B. stated that her father also threw A.B.’s iPad to the floor. She stated that as A.B. and her father were having a heated argument over the hat and the iPad, she saw her father hit A.B. twice with an open hand on his upper body, head and neck area. She also described her father strangling A.B. for 10 seconds or so, and then the fight seemed to subside. According to N.B., she had been able to push the two of them apart, and then went to take a shower. However, her evidence was that while in the shower, she heard a further commotion, and ran out to see her father on top of her brother, hitting him again two or three times in the same upper torso area. She described A.B. as having some resulting purple bruises on his neck and face area after this attack. It was N.B.’s evidence that she and her brother only told their mother about this incident a few days later, and that she did not text her mother about it while her mother was at work.
[18] S.P. had started a factory job in February or March 2018. She stated that her work hours were from midnight until 8:00 a.m., that she left the house around 10:00 p.m. and returned home by 9:00 a.m.
[19] S.P. stated that there was an incident between P.B. and her son, A.B., some months after she started work.
[20] According to S.P., her daughter, N.B., called her as she was leaving work and told her that P.B. had pushed A.B., taken his tablet, smashed A.B.’s face, and that N.B. had to intervene to stop the altercation.
[21] S.P. stated that in a conversation with A.B. later that evening, she told him that they should call the police, but her son did not want to do so. A.B. did not want his father to go to jail.
[22] S.P. and A.B. both testified that after the incident involving A.B., S.P. quit her job as she felt she had to be home with her children.
Count 4: Threaten to Cause Bodily Harm to S.P.
[23] S.P. testified that on an evening in November 2018, she was outside on the first-floor balcony of the home having a cigarette. It was her evidence that P.B. was outside yelling and screaming, throwing the children’s things outside the house, and calling her vile names. She stated that he made a gesture with his hand across her throat, which she interpreted to be a threat to kill her. Among other things, on this evening, he apparently told her that if she was in Greece, she would be dead already, and he verbally threatened to break her neck. Her evidence was that N.B. and A.B. were outside to hear the threats, and then they went inside. According to S.P., when the police later arrived, she sent N.B. and A.B. across the street to the home of her neighbour, R.S.
[24] N.B.’s evidence was that she was on the balcony with her mother and brother, and that she heard her father tell her mother “I’ll cut your throat”, and “[i]f you were in Greece, you wouldn’t be alive.”
[25] A.B.’s evidence was that P.B. was drunk and threatening S.P. who was out on the balcony. A.B. testified that he heard P.B. tell S.P. that he would strangle her and choke her. He stated that he observed P.B. make a threatening gesture with his hands on his neck.
[26] According to both N.B. and A.B., after the threats were made, her mother told them to go inside the house.
[27] This incident was also observed and overheard by R.S., who lived across the street from their home. R.S. was a family friend to S.P. and P.B., had babysat N.B. and A.B., and enjoyed social evenings with both S.P. and P.B.
[28] According to R.S., on that evening in November 2018, she heard noises outside her home. When she went to her front door to investigate, she saw P.B. screaming outside the front veranda of his home. R.S. testified that she heard the same kind of screaming that she had heard from P.B. on other occasions, namely calling S.P. a whore, and saying she was turning the neighbourhood against him. In R.S.’s view, P.B. was drunk, as he was yelling loudly and incoherently, trying to climb the veranda, and stumbling. She testified that she heard P.B. tell S.P. that he was going to “snap her fucking neck,” and that she saw him make a motion with his hands. She described the motion as akin to wringing an animal’s neck, or how a chef would rip the tail from a lobster. It was R.S.’s evidence that other neighbours who were also outside, observing the scene, asked her to call the police, which she did.
[29] According to R.S., the children had initially been outside at the time of this incident but were inside the house at the time the threats she heard were made. R.S. stated that once the police arrived, N.B. and A.B. came over to her house, and that they returned home after the police left.
Disclosure to Police
[30] Shortly after the November 2018 incident, S.P. moved with her children to a neighbour’s home. She then retained family law counsel and it was her evidence that P.B. was served with family law proceedings about one month later.
[31] S.P. testified that she had been granted custody of the children in the family law proceedings and that child support became the outstanding issue between her and P.B.
[32] According to S.P., by June 2019, P.B. had sold the home and moved out of the area. She stated that P.B. called her and that they met at a Coffee Time shop, together with the children. A.B. needed money for shoes and at the meeting, P.B. gave S.P. money and gave money to the children. It was S.P.’s evidence that P.B. proposed that they both drop their lawyers and that he would rent a house for her. S.P. later discussed this proposal with her family law counsel who advised that it was not a good idea. S.P. then texted her rejection of the offer to P.B. Shortly thereafter, P.B. arrived at the neighbour’s home, where S.P. and the children had been living, and he began yelling names at her and her neighbour.
[33] R.S. remembered the evening in June 2019 when P.B. returned to the neighbourhood. Her evidence was that she could hear S.P. and P.B. yelling, as it was summer, and the kitchen windows of her home were open. She stated that she heard P.B. call S.P. a whore, ISIS, and a douche bag. She also heard P.B. say to S.P. that he would rather die than give her a penny.
[34] The police were called and according to S.P., on June 3, 2019, she and her children had to leave where they had been living for the second time, because of P.B.’s actions.
[35] It was at that time that S.P. disclosed the prior incidents of sexual assault, assault, assault on A.B., and the threat, to the police. On her evidence, she did so because she had had enough, that she felt P.B. would never stop, and that she had to protect her children.
Defence Evidence
[36] P.B. gave evidence on his own behalf.
[37] It was P.B.’s evidence that he moved to the basement of the home in June 2017. He stated that he moved because S.P. was always yelling and picking fights with him. Among other things, P.B. stated that S.P. told him that she would call her brothers to harm him, and that she would fuck his life, his business, his records and that he would end up on the street. P.B.’s evidence was that he would sometimes respond by telling S.P. she was crazy and calling her a slut. According to P.B., he would retreat to the basement so that an argument would not escalate, and so that the children would not witness it.
[38] P.B. denied all the allegations made by S.P., A.B. and N.B. He denied that he ever drank to excess, or that he played his music too loudly. He denied the allegation of sexual assault, as he said that he had not slept with S.P. after he moved to the basement in June 2017. He denied ever spitting in her face and denied threatening her with words or gestures. P.B. also denied assaulting A.B. the evening of the argument over the iPad. His evidence was that he was concerned that it was late on a school night and A.B. was still on his iPad, whereas he wanted A.B. to go to bed. P.B. denied that he wanted to grab the iPad from A.B. because he did not want A.B. to be texting S.P. about the argument. P.B. also stated that the night of the iPad incident was the only time that N.B. had ever showered in the basement.
[39] P.B.’s evidence about what occurred prior to the police being called on June 3, 2019 was also different than the account of S.P. or R.S. According to P.B., with the permission of the owner, he had been storing things in the garage at their next-door neighbour’s home, the home to which S.P. and the children had previously moved. However, when he went to retrieve those things on June 3, 2019, the other tenant of the home obstructed him. The two men exchanged words, and it was P.B.’s evidence that the other tenant called the police. He stated that his only contact with S.P. was a conversation through a window in the home about why he was there.
[40] It was his view that the police were called because he stopped giving S.P. money and that A.B. and N.B. only gave their statements to the police because S.P. had brainwashed them against him.
[41] In A.B.’s cross-examination, the defence presented him with a handwritten letter dated October 23, 2019. The letter begins “[d]ear Dad”, and in general terms, is supportive of P.B. and critical of S.P. A.B. stated that the letter was not in his handwriting, and he did not write it. A.B. further stated that he did not tell anyone, including an Aunt, whom he says he does not know, to write the letter on his behalf. When this letter was presented to P.B., he stated that it had been given to him by one of S.P.’s friends, who had lived across the street from their family home. I have given this letter no weight in the assessment of evidence.
[42] The defence also called T.V., an old friend of P.B. T.V. testified that, when A.B. was around two years old, he apparently observed S.P. hit A.B. on the head with a wooden spoon when A.B. was misbehaving. I am not persuaded of the relevance of this evidence, and as with the letter, it holds no weight.
Cross-count Evidence of Disreputable Conduct
[43] The Crown seeks to admit the evidence of the four incidents of criminal conduct by P.B. across all four counts in the indictment.
[44] The defence submits that the prejudice of relying on this evidence outweighs any probative value. In making this submission, the defence points to R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609; R. v. Norris, 2020 ONCA 847, [2020] O.J. No. 5747; and R. v. T.C., 2019 ONCA 898, [2019] O.J. No. 5741. However, these are all cases with multiple complainants where a similar fact analysis was used to determine the admissibility of the evidence. None are cases in the domestic context.
[45] This is not a “similar fact” application by the Crown. Rather, as stated by Code J. in the pre-trial application dealing with this issue, the Crown relies on a closely analogous principle of evidence law, namely, that evidence of extrinsic misconduct is admissible where its legitimate probative value in relation to a relevant issue outweighs its prejudicial effect: see R. v. P.B., 2021 ONSC 3548, at para. 13.
[46] As stated in David Watt, Watt’s Manual of Criminal Evidence, (Toronto: Carswell, 2022) at pp. 652:
Evidence of extrinsic misconduct does not involve reliance upon similarities between the misconduct and the offence(s) charged to support its reception and account for or enhance its probative value. What is critical to its reception is its relevance, otherwise than by its capacity to prove bad character. It may incidentally reveal bad character, but it must be probative of a matter in issue otherwise than through proof of bad character. If the evidence is relevant, otherwise than by proof of disposition or bad character, it is necessary to consider its probative value and prejudicial effect and determine where the balance between them settles.
[47] In cases involving allegations of physical and sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred: see R. v. F. (D.S.), 1999 CanLII 3704 (ON CA), [1999] O.J. No. 688 (C.A.), at para. 19.
[48] Evidence of alleged misconduct that is extrinsic to a particular count may be admissible to help evaluate three issues: the complainant’s relationship with the accused and the family dynamic overall; to demonstrate abusive behaviour that is capable of inferring possible motive or animus between the parties; and the presence of fear to possibly explain any failure of the complainant to leave the relationship or to report allegation of abuse earlier than she did: F. (D.S.), at paras. 19-26; R. v. P.B., 2021 ONSC 3548, at para. 12.
[49] In this case, I am satisfied the evidence across the four counts is probative of the three issues identified in the F. (D.S.) line of authority:
i. The evidence about the incidents from July 2017 to November 2018 reveals a steadily deteriorating relationship within the family, especially as between P.B. and S.P. This negative family dynamic connects all the incidents with a common thread, namely P.B.’s drinking and abusive and volatile behavior. As stated by Code J. in the pre-trial motion addressing this issue, each incident is understood and either strengthened or weakened by its coherence, or lack of coherence, with the broader contextual narrative. P.B., at para. 33; F. (D.S.).
ii. The evidence on each count involves abusive behaviour by P.B. It demonstrates a motive or animus on the part of P.B. towards S.P. in particular, and to a lesser degree, towards A.B. and again, connects all counts.
iii. The evidence across the counts reveals a climate of fear in the family towards P.B. This fear may explain S.P.’s failure to go to the police earlier than she did, and A.B.’s unwillingness to report the alleged assault by his father.
[50] Overall, the discreditable conduct evidence has significant probative value across the four counts. It provides context, animus, or motive, and explains why S.P. did not leave or report earlier. As this is a judge alone trial, the risk of improperly using this evidence to conclude propensity or bad character is minimal. I am satisfied that the probative value of the cross-count evidence far outweighs any prejudice. The Crown application is granted.
Assessment of Evidence
P.B.
[51] In my view, P.B. repeatedly minimized his own conduct to evade responsibility and conceal the truth. Among other things, I note the following:
i. P.B. denied ever getting drunk, stating that he never had more than three beers. This is in direct contradiction to the consistent evidence of S.P., A.B., N.B. and R.S.
ii. P.B. denied that he got angry at S.P. He also stated that he never displayed anger in front of N.B. or A.B. He testified that he was not angry with A.B. during the iPad incident, yet he acknowledges that the argument with A.B. was strong enough to cause N.B. to run out of the shower naked. P.B. also denied he was angry in June 2019 when he called his neighbour a “fucking asshole”.
iii. P.B.’s denial of getting angry is further contradicted by the evidence of R.S., who testified that she had heard him yelling aggressively on a number of occasions before the November 2018 incident when she called the police.
iv. P.B. tried to paint S.P. as the aggressor in their relationship, but stated that when provoked by her, he would call her a slut and other derogatory names, but that he never “lost his cool”.
v. P.B. acknowledged that he would socialize with R.S.’s family regularly, but in his evidence, he tried to characterize the couple as purely business clients and not friends. His unfounded allegation that R.S. testified against him because he owed her parents $10,000 made no sense and flies in the face of R.S.’s clear and candid evidence about what occurred the night she called the police.
[52] There were, as well, internal inconsistencies in P.B.’s evidence. His testimony seemed to evolve when he was confronted with evidence about areas of controversy. I note the following:
i. P.B.’s evidence about when he moved downstairs in the home was at best confusing. He first testified that he mostly slept downstairs after June 2017, then stated that he and S.P. never shared a bed upstairs again, although he acknowledged that he and S.P. were trying to work things out. This is in direct contradiction to the evidence of S.P., N.B. and A.B., that P.B. did not move downstairs until after the December 2017 spitting incident and the car accident.
ii. When questioned about the iPad argument with A.B., P.B. first denied that N.B. ever used the shower in the basement, then acknowledged that she used that shower that day for the first time. This is not credible.
iii. P.B. first denied seeing S.P. on the day in June when he went to his neighbour’s house. He then stated that he saw S.P. in the window but said nothing to her. This evidence then evolved to acknowledging that they exchanged words and that he was shouting things about her, but he again denied that he was ever angry.
[53] It is the position of the defence that the Crown witnesses colluded with one another, and as such, the evidence of P.B. should be preferred over that of S.P., N.B., A.B. and R.S.
[54] In particular, the defence submits that because there was a 13-month period between S.P.’s statement to the police in early June 2019, and the statements of N.B. and A.B. on July 1, 2020, and because S.P. and the children lived together, there was opportunity for collusion. However, opportunity for potential collusion does not translate into an air of reality that there was collusion. For the following reasons, I reject the allegation of collusion:
i. Both N.B. and A.B. flatly denied discussing their evidence with each other or their mother. They each were intelligent and thoughtful in their evidence, especially in light of their ages. N.B. testified that she knew she was not supposed to discuss her evidence with anyone and stated that her mother just instructed her to tell the truth.
ii. I accept the evidence of S.P. that both N.B. and A.B. were in therapy and upset about what had occurred within their family. They did not want to discuss anything with her and she in turn just wanted her children to move on.
iii. The suggestion of collusion is further refuted by P.B.’s own evidence. Each of N.B. and A.B. recalled an incident where P.B. inadvertently started a fire while cooking with hot oil in the basement. P.B.’s evidence about this oil fire is confirmation of his children’s ability to recall accurately and independently. Similarly, while there are differences as to the nature of the iPad argument, each of P.B., N.B. and A.B. testified that N.B. ran out of the shower naked during the iPad argument. Again, by his own account, P.B. effectively rejected the notion of collusion.
iv. Further, the totality of the evidence belies any air of reality to the suggestion of collusion. S.P. did not embellish her evidence. For example, she did claim to see injuries on A.B. after the assault, and both N.B. and A.B. testified as to bruises and red marks, respectively. S.P. testified about two instances of spitting, whereas N.B. and A.B. testified that there was only one. Significantly, the unchallenged evidence of R.S. about calling 911 in real time, when she heard the threats, indicates that there was no opportunity for collusion.
[55] Overall, the evidence of P.B. was self-serving and largely no more than a bald denial of the evidence of the four Crown witnesses. In my view, it was not credible. I do not accept the evidence of P.B., nor does it leave me with reasonable doubt: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
Does the Rest of the Evidence Establish Guilt Beyond a Reasonable Doubt?
Count 2: Assault on S.P.
[56] I begin with the assault on S.P.
[57] As set out above, S.P., N.B. and A.B. each testified about this incident. All three witnesses were consistent about the essential details of what occurred. I note the following about their collective evidence:
i. S.P., N.B. and A.B. all placed this incident on the same day or very close to the time that S.P. had the car accident in December 2017.
ii. S.P., N.B. and A.B. each stated that P.B. had been playing loud Greek music and after he was told to stop, he came upstairs in an angry state.
iii. S.P., N.B. and A.B. each stated that P.B. had been drinking. They knew the signs of his drinking, although none of them had seen him drinking that evening. S.P.’s evidence was that P.B. smelled like alcohol.
iv. S.P., N.B. and A.B. each stated that there was an argument between S.P. and P.B. while the children were in the bedroom and that P.B. spat on S.P.
v. S.P., N.B. and A.B. each stated that P.B. was very angry when S.P. returned home that night after the car accident, and that it was after this incident that he began sleeping downstairs.
vi. S.P. was clear and coherent in her evidence about the spitting. She described the first spit as landing on her face and dripping down. It was not a case of accidental spittle flying when someone is talking loudly and close to another’s face. S.P.’s distress about the humiliation and degradation of this incident was palpable as she was describing it.
[58] The defence submits that the inconsistencies about this incident should raise questions about the credibility of the Crown witnesses. Among other things, the defence points out that S.P. testified that P.B. spat on her twice, whereas N.B. and A.B. each described only one incident. As well, the defence submits that A.B.’s evidence that he was not in the room when the altercation began, and only went into the bedroom when he heard shouting, is contradicted by that of S.P. and N.B. who testified that both children were in the room from the beginning.
[59] In my view, these differences are insignificant, when measured against the shared recollection of the core details of the assault, namely the angry confrontation and the spitting. They are also insignificant given the commonsense approach to be taken when dealing with the testimony of children. N.B. was not quite 11 years old when she gave her statement to the police, which she adopted at trial. She was describing an incident that occurred when she was 8. A.B. was almost 15 years old when he spoke to the police, describing an incident that occurred when he was 12. They were still in their formative years and the standard of a reasonable adult is inappropriate; therefore, inconsistencies about peripheral details are to be expected: see R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122; and R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827.
[60] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Balkos spat on S.P. on that evening in December 2017. He is found guilty of Count #2.
Count 3: Assault on A.B.
[61] N.B. and A.B. each testified about this incident. S.P. testified that she was told about it after it occurred. I note the following about their collective evidence:
i. S.P., N.B. and A.B. all testified that the iPad incident, which was at the root of this assault charge, occurred when S.P. was working overnight at a factory and N.B. and A.B. were home alone with P.B. This context was confirmed by P.B.
ii. Shortly after this incident, S.P. quit her job so that she could be home with the children at night. This timing was confirmed by N.B., A.B. and P.B.
iii. N.B. and A.B. testified that the incident occurred in the basement and that the dispute began because P.B. was unhappy with A.B.’s use of his iPad. Again, this context was confirmed by P.B.
iv. N.B. stated that she ran out of the shower naked to intervene in the altercation between P.B. and A.B. By his own account, P.B. acknowledged that N.B. was naked. In his statement to the police, A.B. stated that his sister was naked but “he didn’t see it because he was looking the other way.” This type of unprompted comment from a 15-year-old brother about his younger sister carries the hallmark of truth.
v. S.P. and A.B. both testified that S.P. suggested that they call the police but that A.B. did not want his father to be arrested.
[62] I accept that there are inconsistencies in the evidence about what happened that night. Among other things:
i. N.B. testified that there were two instances of physical assault with a break between them when she went into the shower.
ii. N.B. stated that the incident followed a visit to Canada’s Wonderland and an issue with a hat that A.B. had won. A.B. made no mention of the visit or the hat.
iii. S.P. testified that she received a text that evening from N.B. N.B. stated that she did not text her mother that evening but told her a few days later. A.B. stated that he told his mother the next day.
iv. N.B. described bruising while S.P. did not notice any injuries and A.B. stated that there were red marks that faded by the time he told his mother.
v. The defence submits that it is incongruous to accept that N.B., who was young and slight at the time, would have been able to break up the fight between her father and brother.
[63] In my view, these inconsistencies are rather minor in nature and relate to peripheral issues. They do not weaken the evidence about the essential event, namely, an assault on A.B. It is, for example, plausible that 11-year-old N.B. got her days mixed up when she testified that the assault followed the Canada’s Wonderland trip. As well, it is not the case that N.B. overpowered her larger father and brother. Rather, the evidence is that she got between them to make her father stop the assault. I am satisfied that the differences among the three Crown witnesses can be explained by the chaos of the evening, the passage of time, and the fact that N.B. and A.B. were young teenagers at the time. It is not surprising that they might be confused about incidental or surrounding context. In contrast, what is significant is that there is coherent and consistent evidence that P.B. and A.B. were in a physical dispute over the iPad, it occurred in the basement when S.P. was at work, N.B. intervened after running out of the shower naked, S.P. was told about it soon thereafter, A.B. did not want to call the police, and S.P. quit her job shortly thereafter to be home in the evenings with her children.
[64] For these reasons, I am satisfied beyond a reasonable doubt that P.B. assaulted A.B. sometime in November 2018. He is found guilty of Count #3.
Count 4: Threaten to Cause Bodily Harm to S.P.
[65] This event was described by S.P., N.B., A.B. and R.S. R.S. is an independent witness, and her evidence about calling the police after she heard the threats was unimpeachable. While there was some inconsistency about where N.B. and A.B. spent the evening after the threats were made, at which point in the evening S.P. sent them into the house, and where exactly R.S. was when she heard the threats, these again are differences about tangential matters. There was consensus among S.P., N.B. and A.B. as to what P.B. was doing and saying that night, and that consensus was confirmed by the forceful and independent account of R.S.
[66] I note that the defence submits that R.S. had a motive to lie about what occurred that evening, as she was a friend of S.P. and wanted to make P.B. look bad. The defence also suggested that R.S. had a motive to lie because of a debt P.B. owed to her parents. However, questions about that debt were never put to R.S.
[67] I firmly reject the submission that R.S. had any motive to lie. Her evidence was clear that she was friendly with the whole family, including P.B., and that she only called the police because of what she observed and heard that night.
[68] In my view, the Crown has disproven any motive to fabricate on a balance of probabilities which in turn further supports R.S.’s credibility.
[69] For these reasons, I am satisfied beyond a reasonable doubt that P.B. threatened to cause bodily harm to S.P. in November 2018. He is found guilty of Count #4.
Count 1: Sexual Assault on S.P.
[70] I have left this count to the end as it was the only offence for which there is no direct confirmatory evidence. This is not unusual as sexual assault is generally committed in the absence of other witnesses. There is, of course, no requirement to find confirmation in order to accept the evidence of S.P.: see R. v H.P., 2022 ONCA 419, at para. 68; and R. v. Demedeiros, at para. 9. However, it is, as always, critical that all the evidence be carefully reviewed to determine if the offence of sexual assault has been made out.
[71] As stated in H.P., at para. 69:
…evidence can be given confirmatory weight ‘even if it does not directly 'confirm the key allegations of sexual assault' or 'directly implicate the accused'’, where it is capable of confirming or supporting certain aspects of a witness's credibility or reliability, in the context of the specific challenges made by defence counsel: R. v. Primmer, 2021 ONCA 564, at paras. 33, 38-42, leave to appeal refused, [2021] S.C.C.A. No. 462, citing R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff'd 2019 SCC 11, [2019] 1 S.C.R. 568.
[72] I have considered all the evidence in assessing S.P.’s credibility and reliability. Her evidence about the spitting was confirmed by N.B. and A.B. and her evidence about the threats was confirmed by the children and by R.S. As well, each of N.B., A.B., and P.B. confirmed her account that she stopped work shortly after the iPad incident of assault in order to be home with the children.
[73] There was, as well, confirmatory evidence of other, less essential, matters about which S.P. testified. Among other things, P.B. confirmed the evidence of S.P. about how they met, that she helped care for his ill mother, that she helped with some of his business matters, and that, after separating, they met at Coffee Time coffee shop to discuss money, including money for shoes for A.B.
[74] Further, there is no evidence that S.P. had a motive to lie. While the defence submits that S.P. had a financial motive to fabricate, as P.B. was not paying child support, there is no evidence to support this allegation. As stated by the Supreme Court of Canada in the recent case of R. v Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at para. 4:
Lack of evidence of a complainant's motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility – neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at para. 31-33).
[75] Simply put, the absence of evidence that S.P. had a motive to lie is but one of the factors in the credibility analysis.
[76] Among other things, the defence submits that because S.P. used the phrase “sweet pain” in her evidence to describe P.B.’s reaction to her pain but did not use that phrase in her statement to the police, it goes to impugn her credibility. With respect, I give this distinction very little weight, in light of the rest of S.P.’s evidence.
[77] Throughout, S.P.’s account had logical coherence, and was internally consistent in describing a pattern of abuse during the deterioration of her relationship with P.B. In my view, the independent confirmation of S.P.’s evidence about the spitting, the assault on A.B. and the threats, coupled with the absence of evidence about a motive to lie, are robust indicators of S.P.’s credibility and reliability.
[78] When the evidence as a whole is considered, I am satisfied beyond a reasonable doubt that the sexual assault as described by S.P. did occur.
[79] P.B. is found guilty of Count #1.
Conclusion
[80] P.B. is found guilty on all counts.
Croll J.
Released: August 23, 2022
COURT FILE NOS.: CR-20-30000187-0000
CR-22-30000329-0000
DATE: 20220823
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
P.B.
AMENDED
REASONS FOR JUDGMENT
B. Croll J.
Released: August 23, 2022