Court File and Parties

COURT FILE NO.: CR-22-124 DATE: 2024/06/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – M.C.D. Defendant

Counsel: Pierre Lambert-Bélanger, for the Crown Randall Norris, for the Defendant

HEARD: April 23 - 25, 2024

Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

Reasons for Decision

eLLIES J.

Overview

[1] M.C.D. was accused of 13 charges involving his spouse, M.L., and two of their three children, T.D. (a boy) and M.D. (a girl). At the conclusion of the evidence, the Crown withdrew three of the charges. Following the submissions of counsel, I acquitted the accused of the remaining charges for reasons to be delivered.

[2] These are my reasons.

Background

[3] The accused and M.L. were involved in a relationship that became tumultuous practically from the time they began dating in 2001. The couple separated on numerous occasions, according to M.L. The Children’s Aid Society (“CAS”) appears to have been involved with the family from at least 2013. The police were also involved from time-to-time.

[4] Although the evidence about the involvement of the CAS is obscure, what is clear is that for a period from 2013 to 2015, the couple’s three children were placed in the care of M.L. and the accused was permitted only supervised access. This change in custody coincided with allegations made by M.L. of serious criminal behaviour on the part of the accused, the details of which were never provided during the trial, but which included allegations of gun violence.

[5] What is also clear is that, about two years after she was given custody of the children, M.L. lost that custody and the three children were placed, instead, in the care of the accused. The evidence about why the CAS completely reversed themselves is also obscure. As far as I can tell, the accused was cleared of M.L.’s allegations, while M.L. herself became the subject of criminal allegations made by another partner of hers. Those allegations were substantiated by at least one of her children, T.D., about which I will have more to say later in these reasons.

[6] The accused had custody of the children from 2015 until the present charges were laid in 2021, something about which I will also have more to say.

M.L.’s Allegations

[7] M.L. testified about two incidents in which she was allegedly assaulted by the accused.

[8] The first is said to have occurred in or about 2003. M.L. testified that she and the accused were separated at the time. She said that the accused was at her place of residence to pick up T.D. for the purposes of exercising parenting time. M.L. testified that the accused wanted to discuss getting back together and became angry when she did not wish to do so. She said that the accused told her that if he could not have her, then no one could. She said he then grabbed her face, squeezed it, and said, “Do you hear me?” M.L. testified that the accused then grabbed her throat and hit the closet door behind her with his other hand, saying “This is going to be your face.” She testified that she pushed the accused away, told him that he was not going to be able to take T.D., and that the accused then left.

[9] The second incident allegedly occurred about nine or ten years later, in 2012 or 2013. The couple were again separated at the time, having gotten back together following the 2003 incident. By this time, the couple had moved to a home they owned in Verner. The CAS had become involved in 2012 as a result of the challenges the family was facing after the youngest child, J.D., was born. J.D. was quite ill from birth and required frequent treatment at CHEO in Ottawa. T.D. had also been diagnosed with ADHD and the family had sought help through HANDS, a family support agency in North Bay. According to M.L., HANDS had reported the situation to the CAS and she and the accused had been placed on what I would call a “nesting” parenting time schedule such that the accused and M.L. took turns living with the children in the home in Verner.

[10] M.L. testified that on the occasion in question, she had gone to a neighborhood barbecue with a friend in Verner. When she returned to the family home, the accused was there with his mother, who had become a “mediator” for visitation purposes, which I presume is a form of supervision. M.L. testified that the accused alleged that she had been “messing around”, stuck his hand down the front of her pants, and touched her vagina to see if there was any semen there. He then pulled her shirt away from her body to see what sort of a bra she was wearing. According to M.L. this ended when the accused’s mother came upstairs to see what was going on and the accused and his mother then left the home.

M.D.’s Allegations

[11] M.D. is now 16 years old. She testified that she was sexually assaulted by the accused on four occasions, the first occurring when she was just a young child.

[12] M.D. testified that when she was four years old, the accused inserted his finger into her vagina while he was washing her in the bathtub at the home in Verner. She testified that she was unable to remember much more about the incident because she was so young.

[13] The second incident is alleged to have occurred about eight years later, when M.D. was approximately 12 years old. By this time, M.D.’s parents had separated permanently, and the accused was living with a partner, H.L., in the Verner home. M.D. testified that she was in bed on this occasion, dressed in just a bra and underwear. She said that the accused came into her room to say goodnight, as he often did. However, she testified that, on this occasion, he did more than just say goodnight. She said that this time, he held her down, removed her bra and underwear, and began to touch her vagina. She said that, although she told him to stop and struggled against him, he did not stop, and she could not stop him herself. She testified that the accused forced his penis inside her vagina and had intercourse with her for up to about 10 minutes. She said that the intercourse ended when the accused ejaculated on her leg. She testified that, after ejaculating, the accused grabbed her by the hair and then made her suck his penis. According to M.D., this incident ended when the accused got up and went to the garage.

[14] The third incident involved only oral sex. According to M.D., when she was still about 12 years old, the accused again came into her bedroom, this time angry with her because she had not cleaned the dishes properly. She was again sitting on her bed. She testified that the accused grabbed her by the hair and made her suck his penis. As I will come to, the evidence about how this incident finished is far from certain.

[15] According to M.D., the fourth and final incident took place just before she was admitted to the hospital for mental health treatment. On this occasion, M.D. was in the basement shower at the Verner home when the accused came in looking for a coat he kept on a hanger there. She told him to get out of the bathroom. According to M.D., this upset the accused, who came into the shower fully clothed, grabbed her cheeks, and began touching her breasts “and stuff”. Again, the incident ended when the accused went into the garage. M.L. testified that, during the incident, the accused banged her head against the shower wall, causing her to suffer a headache.

[16] After the fourth incident, M.D. left the Verner home and called the police on a cell phone she had secreted into the house. This call led to her being hospitalized for a period of time for issues related to her mental health. For reasons I will explain, she never returned to live with her father again.

T.D.’s Allegations

[17] T.D. is now 21 years old. He testified about six incidents, or groups of incidents, involving himself and the accused.

[18] The first incident occurred when T.D. was about six or seven years old. He testified that he had punctured a valuable basketball belonging to his father. After his mother got home from work, she took him to McDonalds restaurant. His father got home from work while they were at the restaurant. T.D. testified that, when he and his mother got home, presumably after the accused discovered the punctured basketball, the accused opened the back door of the car and threw the ball at T.D., hitting him in the face. T.D. testified that his mother yelled at his father before getting T.D. a Kleenex for his bleeding nose.

[19] The second incident occurred just before T.D.’s parents separated in March 2013. T.D. testified that the family had just moved into the Verner home about a year before. He said that he, his father, and his mother were in the living room of the home at the time the incident occurred. He said that he had eaten some candies without permission and that the accused got angry with him as a result. He testified that the accused grabbed him by the back of the neck and threw him against a glass coffee table, breaking his tooth. He said that the tooth bled when it broke and that his mother cleaned up the blood. The dentist’s office was closed at the time, so his father took him to the dentist on Monday or Tuesday of the following week. He said that the accused told him to tell the dentist that he had fallen, which he did.

[20] The third incident was actually one of a group of incidents, according to T.D. He testified that when he was about 15 years old, his father came into the bathroom where he was having a shower, opened the shower doors, and just started “beating” on him for being in the shower too long. He said that this would happen often, and probably happened more than a dozen times. He testified that he suffered a black eye on more than one occasion. T.D. said that, when they saw the black eye, the teachers at school would ask him what happened. He said that he would just tell them he slipped and fell, as he was instructed to do by his father.

[21] The fourth incident allegedly happened when T.D. was about 16 years old. On this occasion, he said, he had been helping his little brother get ready for school. He said that his father had been drinking already that morning and would get aggressive when he drank. He testified that the accused ran down the stairs to the front entrance where T.D. and his brother were located and kneed T.D. in the groin. T.D. said that he then tried to throw his father down the stairs and hurt the accused’s pinky finger in the process. He said that the accused kicked him out just after that and he then went to live with his mother.

[22] The fifth incident alleged by T.D. involved knives. He testified that he and the accused got into an argument and they each picked up knives. He said that he escaped the house through a bedroom window and went to the corner store, where he called the police. I will have more to say about their alleged response in the analysis section that follows.

[23] The sixth and final incident involving T.D. is alleged to have happened at Christmas time in 2016. T.D. testified that his father had unsupervised access at the time and that his sister, M.D., was sitting on a couch, I assume at the Verner home. T.D. testified that he was “bugging” M.D. when his father got angry with him and “whipped” a pair of jeans from the laundry basket at him. He said that the button on the jeans struck him near his eye. T.D. testified that, as he had done once before, he left the home and called the police from the corner store. This time, however, they called his mother, with whom he was living with at the time, who came to pick him up.

[24] T.D. also testified about one of the allegations involving M.D. He said that when he was about 10 or 11 years old, he walked into the bathroom off of the master suite of the Verner home and saw M.D. being bathed by her father. He said that he saw M.D. on her side and his father with two to three fingers in M.D.’s vagina. He said that he startled his father by asking him what he was doing. He went on to say that M.D. would come to their mother’s home from time to time with bloody underwear.

Defence Evidence

[25] H.L. dated the accused for about four years and lived with him for a period from March 2020 to October 2023. She testified that she did not sleep anywhere but at the Verner home during the time that she lived there. She said that, although the accused would be alone at times with the children, she was at home quite a bit. This was especially true when they first started living together, because it was just as the COVID-19 pandemic had been declared. She worked in personal healthcare and did not have many hours at that time.

[26] H.L. testified that, although the accused would yell at the children, she never saw him being physically abusive with any of them. She said that she had a good relationship with M.D. She testified that the bedroom in which she and the accused slept was “kitty corner” to M.D.’s bedroom, that she was a light sleeper, and she never heard any screams coming from that room.

[27] H.L. testified that in February 2021, she and the accused were outside the Verner home having a cigarette when M.D. went to use the bathroom. She said that the accused kept his coats in the bathroom because there were no coat hooks in the entryway. She testified that the accused left her outside and went into the bathroom to get his coat. She said that she could hear the accused and M.D. yelling at each other. Ten to fifteen seconds later, she said, the accused returned. She testified that there was no change in the accused's clothing.

Analysis

[28] It is a bedrock principle of our criminal law that accused individuals are presumed innocent and are not to be convicted unless the Crown has proven their guilt beyond a reasonable doubt: R. v. Morin, [1988] 2 S.C.R. 345, at page 354. The Crown has failed to do that in this case because there are serious problems with the credibility and reliability of its witnesses.

[29] I will begin with the evidence of M.L.

Problems with M.L.’s Evidence

[30] When we refer to a witness’s reliability, we are referring to that witness’s ability to perceive, recall, and recount events. In other words, we are referring to the witness’s ability to tell the truth. When we refer to a witness’s credibility, we are referring to the witness’s willingness to tell the truth: R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at p. 526. M.L.’s evidence suffered in both respects.

[31] M.L.’s reliability suffered at several points during her testimony. For example, on one occasion, she testified that T.D. was already one year old at the time of the closet incident, but then said later that he was just turning one at the time she and the accused subsequently reconciled. On another occasion, she testified that the barbeque incident happened in 2012 when HANDS was still involved with her family, but testified in another part of her evidence that HANDS became involved when the youngest child, J.D. was about two years old, which would have been in 2013. On yet another occasion, she testified that M.D. “blurted out” the allegation that the accused sexually assaulted her while on a TEAMS meeting with a school official during the COVID-19 lockdown. However, she told the police that she was with M.D. in a Dollarama parking lot at the time M.D first made those allegations. When confronted with this inconsistency, M.L. tried to say that M.D. told her about the sex assaults on more than one occasion and that M.D. had said it first to the school official. However, this also contradicted her statement to the police that the meeting with the school official took place after they were in the parking lot.

[32] M.L.’s credibility suffered in both form and substance. The manner in which she testified seemed to me to be rehearsed at times. For example, when she was testifying about the history of her relationship with the accused, she said, “For some reason, we were inseparable”, or words to that effect. This seemed to me to be an effort to tell a story in which M.L. was the victim of a love gone wrong.

[33] M.L. also embellished her evidence at times. For example, at one point she said, “If I had told [you] everything we had gone through, we would be here for years.” At other times, she was misleading in her evidence. For example, she testified in-chief that she works “in nursing” and that she has two college degrees, leaving the impression that she was a nurse. However, in cross-examination, she was eventually forced to admit that she is not a qualified nurse at all, but a personal support worker with what she said was “supplementary training”.

[34] A second, and perhaps more important example of the misleading nature of M.L.’s evidence relates to the reason she lost custody of the children in 2015. She testified during her examination-in-chief that she lost the children because her partner at the time (not the accused) made false allegations of child abuse against her in retaliation for something she told the police about him. However, as it turns out, no charges were ever laid against M.L.’s partner and his allegations against her were substantiated by her son, T.D., who told the police that she had handcuffed him to a table. I will return to this evidence when I discuss the evidence of T.D.

[35] In addition to these problems, M.L.’s evidence contained numerous inconsistencies and improbabilities. These included the following:

• She never told the police about the 2003 incident (the “closet incident”) or the 2013 incident (the “barbeque incident”) when she gave the first of two statements to the police in 2013, even though the barbeque incident allegedly happened only about two weeks before she gave her statement.
• She never complained to the police about the closet incident until 2021, despite the involvement of the CAS and the police from about 2013.
• When she did tell the police about the closet incident in 2021, she told them she had called the police in 2003, but testified before me that, rather than call the police in 2003, she called her parents, instead.
• She testified in connection with the closet incident that the accused would often say that if he could not have her, no one would. She admitted in cross-examination that this constituted a serious threat, and yet she never told the police about it, even in 2021.
• She and the accused were not even supposed to be in the Verner house at the same time when the barbeque incident allegedly occurred because they were subject to the nesting arrangement imposed by the CAS at the time.

[36] These examples demonstrate significant issues with both M.L.’s reliability and her credibility as a witness. In my view, the issues with M.L.’s credibility are so severe as to render her evidence useless because, as Doherty J.A. explained in Morrissey, while an unreliable witness may still be credible, a witness who is not credible cannot be reliable: Morrissey, at p. 526.

Problems with M.D.’s Evidence

[37] There were even more problems with M.D.’s evidence than there were with that of M.L.

[38] Like her mother, M.D. was prone to embellishment. For example, when testifying about the third incident involving oral sex, she testified that her father made her wash the dishes every day, even though she was only 12. She also testified at one point that the accused had removed the door handles at his home and would not let them eat. I find this evidence to be improbable. Nor was it corroborated by any other witness.

[39] The improbabilities in M.D.’s evidence went beyond those mentioned above. They included:

• M.D.’s testimony that the accused hit her in the face when driving her to school the day after sexually assaulting her for the first time. She said that he got angry at her for not saying she loved him as she was getting ready to exit the vehicle. She testified that the blow was so forceful that it gave her a black eye that lasted for a week. Yet, she said that no one at school, not even the teachers, asked her about it. When the improbability of this evidence was challenged in cross-examination, her response was simply that “it was a horrible school”.
• When asked why she never took a picture of her black eye, M.D. testified that her father would not let the children have a cell phone. However, she testified earlier that she had snuck a cell phone into her room and hidden it underneath the mattress before the first sexual assault and that she used a cell phone to call the police after the fourth and final incident in which she was assaulted in the shower.
• When asked during cross-examination about blood resulting from forced intercourse at age 12, she testified for the first time that there was blood on the bed following the first incident. When asked about the fact that no one seemed to notice the blood, she testified that she threw the bedsheets out. When asked why no one noticed that she threw the bedsheets out, she said it was because she got new ones. When asked exactly where she got the new ones, she could not say.

[40] Most importantly, in my view, M.D.’s evidence was filled with significant inconsistencies. These included:

• Telling her mother that the sexual abuse started at age 5, but testifying that she was 12 years old when it started.
• Testifying that she was 12 years old when the abuse started, but telling the police she was 8 years old when it started.
• Telling her mother that her father “raped [her] all the time” and that it was constant, when, as set out above, she testified at trial that the accused had intercourse with her on only one occasion.
• Testifying that she was sexually assaulted on four occasions, but telling the police that it happened once or twice per month.
• Telling her mother that the accused never ejaculated in her presence, but testifying that he ejaculated on her during both sexual assaults.
• Testifying initially that the accused ejaculated on her leg during the first sexual assault, but then testifying later that it was on her leg and her face.
• Testifying at first that the accused ejaculated on her face during the second sexual assault, but then testifying later that he “did not finish that time”.
• Not testifying that the accused ejaculated against the shower wall during any of the shower incidents, but telling the police he did during one of them.
• Testifying that the accused was wearing clothes when he came into the shower, but telling the police that he was undressed at the time.

[41] No one should be convicted on evidence of this quality. There are just too many inconsistencies and improbabilities in the evidence to allow anyone to be convinced of its truth beyond a reasonable doubt.

Problems with T.D.’s Evidence

[42] T.D.’s criminal record alone is enough to cause me to have serious concerns about the truthfulness of his evidence. His record contains numerous convictions for breaching court orders, which is a sign that he has no respect for the court. His record also contains a 2023 conviction for fraud, which is an offence of dishonesty. In a rare display of the lack of respect T.D. has for the law and of his distaste for honesty, when questioned during cross-examination about the fact that he pleaded guilty to the fraud charge, he testified that he lied to the court when he said he was guilty.

[43] Not only does T.D. have a criminal record for offences of dishonesty, but he is also dishonest about his record. When he was questioned by the police about the accused in 2021, he told them that he had recently gotten out of prison for “assaults, mischief, and stuff”. However, he had also been imprisoned for robbery, which he admitted was a more serious offence. In addition to having been imprisoned for robbery, T.D. had also been imprisoned for obstructing the police by lying to them about his own name. If T.D. was prepared to try to hide the truth from the police, whom he had to know could easily check his criminal record, one is left wondering the lengths he will go in testifying against a man he admitted to the police he does not like.

[44] Perhaps one need not wonder for long, however, because T.D. admitted that he also lied to the police about his mother, whom he does like. He testified that he lied when he told the police in 2015 that his mother had handcuffed him to a table. He said that he just told them that because he wanted to get out of the interview room.

[45] It is perhaps not surprising, then, that none of T.D.’s evidence was corroborated by either his mother or his sister. Notwithstanding T.D.’s evidence that his mother was present during the first two incidents described above involving the basketball and the coffee table, M.L. was never asked about and never volunteered any evidence about either event, or any other event involving T.D. Nor did M.D. ever say that she saw T.D. come into the bathroom when she was being bathed or that she ever had blood in her underwear.

[46] The evidence of T.D. did share one thing in common with that of his mother and sister, however. It, too, contained improbabilities. These included:

• His evidence that he could see that his father had two or three fingers inside his sister’s vagina when he saw her being bathed. I find it highly unlikely that he could have seen what was going on in the bathtub when he first entered the bathroom as a nine- or ten-year-old or that his father would keep his fingers there long enough for T.D. to see them once he got to the bathtub.
• His evidence that he had more than one black eye as a result of assaults by his father. Unlike, M.D., T.D. testified that the teachers at school did ask him about the black eyes. However, according to T.D., these same teachers appear to have accepted without question his evidence that multiple black eyes had been caused by slips and falls.
• His evidence that the police told him to go back home when he called them to tell them he and his father had just confronted one another with knives. I find it highly unlikely that any police officer would tell a young caller such a thing.

[47] While the problems with T.D.’s evidence make it impossible to accept, his evidence did convince me of one thing, namely that there has been collusion among the Crown’s witnesses.

[48] During cross-examination, T.D. and M.D. both resorted to the same refrain when confronted with the improbabilities and inconsistencies in their evidence, saying, “no child should have to go through this” or “even one time was enough”, depending upon the area of their testimony upon which they were being challenged. Their mother, M.L., used the same or similar words when she was being cross-examined. I do not believe the similarity in word was mere coincidence. Nor do I believe it is mere coincidence that T.D. and M.L. could remember the exact date upon which M.L. lost custody of the children, namely June 11, 2015. Indeed, T.D. testified that his mother made spaghetti for them that night and that she did not know for a week why they did not come for dinner. He could only have obtained his information from M.L.

Conclusion

[49] As I mentioned earlier, M.L. lost custody of the children in 2015 as a result of the allegations of abuse made by her partner at the time. She admitted that she did everything in her power after that to have the children returned to her. For example, in 2020, she tried to take advantage of the pandemic to retain custody of the children in contravention of a court order. However, the police became involved and she was forced once again to return the children to the accused.

[50] The situation remained that way until 2021, when the present allegations were made for the first time by M.L., M.D, and T.D. I believe it is fair to say that T.D. and M.D. did not want to remain in their father’s custody. However, it is hard to say why. Perhaps it was because he would yell at them, as H.L. testified he did. Or perhaps it was because of things they had been told by their mother. Whatever the real reason, as I have explained, I cannot conclude that it was because the accused physically or sexually assaulted any of the complainants.

[51] For this reason, the accused was acquitted of all of the charges not withdrawn by the Crown.

M.G. Ellies J.

Released: June 14, 2024