COURT FILE NO.: CR-21-316
DATE: 20241029
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JAMES NATHAN MCLARNON
Defendant
Jennifer Moser, for the Crown
Aaron Prevost, for the Defendant
HEARD: July 2, 3, 4, 5, 10 2024
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information
that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
TRANQUILLI J. (oRALLY):
Introduction
[1] On April 28, 2021, S.C. called police to report an incident of alleged intimate partner violence involving his daughter, the complainant M.C. M.C. had left her father’s home a few days earlier and had not been in contact. She had finally texted him for help earlier that day. She claimed she had been held against her will by the accused at his father’s apartment.
[2] The complainant told police that Mr. McLarnon was her former intimate partner. They had been in an on again off again relationship over the previous several years. She had been with Mr. McLarnon at his father’s apartment for several days. Illicit drug use was the prevalent activity during this time. She alleged Mr. McLarnon had accused her of stealing his drugs, cut her with a knife, threatened her life with a pellet gun, choked her, forced her to perform oral sex and refused to allow her to leave the apartment. She escaped the apartment after Mr. McLarnon fell asleep.
[3] She also told police of previous instances of assaults, threats and forcible confinement that occurred throughout the course of their relationship.
[4] As a result, Mr. McLarnon faces nine Criminal Code offences arising from multiple incidents of alleged intimate partner violence of M.C., that occurred over between January 1, 2020, and April 28, 2021.
[5] He is charged with one global count of uttering a threat to cause death, one global count of assault, three specific counts of assault with or threatening assault with a weapon, one global count of uttering a threat to cause death, one global count of unlawful confinement, one specific count of assault with choking and one specific count of sexual assault.
[6] The Crown called evidence in this judge-alone trial from the complainant M.C., her father, and the investigating officer. Mr. McLarnon testified on his own behalf.
[7] The principal witnesses were each involved in the street drug culture and drug use was a central feature of their relationship. The credibility and reliability of M.C. and Mr. McLarnon is central to the determination of whether the Crown has proven these charges beyond a reasonable doubt. Consent is at issue in respect of the count of sexual assault. For the balance of the counts, the issue is whether these events occurred. But for admitting to an incident of simple assault comprised of slapping M.C. on her face in January 2020, Mr. McLarnon denies the allegations.
Overview of Evidence
[8] I now turn to a review of the evidence. The factual disputes include the nature and history of the relationship between the accused and complainant; however, it is not necessary for me to resolve all the issues that arose in their course of their testimony. The history of this relationship also involves uncharged abusive conduct, such as allegedly forcing the complainant to extinguish a cigarette on her leg, which I consider only as narrative context and for understanding the nature of their relationship. I am also mindful that Mr. McLarnon denied this uncharged conduct. There was also no dispute that Mr. McLarnon was involved in drug trafficking throughout this time. He is not on trial for this uncharged conduct or for his trafficking activity. The real issue here is whether the offences charged took place. I am not trying him on any other conduct, and this evidence cannot be used to conclude he is more likely to have committed the offences, nor am I to punish him for this other conduct by finding him guilty on these offences.
[9] M.C. is about 30 years of age. Mr. McLarnon is about 38 years of age. Both have criminal records: M.C. for possession or possession for the purpose of trafficking Schedule 1 substances, and the accused for theft, failure to comply with orders, mischief and assault.
[10] M.C. has one biological child, “C”, who was born in May 2020, during the period of charged conduct.
[11] M.C.’s history is significant for addiction to street drugs such as hydromorphone, crystal methamphetamine and Fentanyl. She has been managing her addiction since the birth of her son. Her son was initially in the primary care of her father under supervision of the Children’s Aid Society while the complainant addressed her drug use. She was on a methadone program and then a safe supply program. Beginning about one year ago, the child is now in her independent care. Her treatment at the time of trial included prescriptions of dilaudid, morphine and Seroquel. She was on these medications during her trial testimony.
[12] The complainant and accused first met about 10 years ago. They were each involved in the street drug subculture. Mr. McLarnon was initially in recovery and participated in a methadone program but supported himself through drug trafficking throughout the period of charged conduct and variously used these substances, including hydromorphone, crystal methamphetamine and later Fentanyl. M.C. was a regular user of these drugs. Fentanyl became their prevalent use during the period of charged conduct.
[13] The complainant and accused gave differing accounts of the nature of their relationship and their conduct over the course of the next several years. Their testimony centred around three periods of time and locations. The charged conduct allegedly occurred during the latter two periods of time.
[14] First, their initial cohabitation was in the accused’s room at a boarding house on Curry Street between late 2015 and some point in 2017 when they broke up. None of the conduct that forms the subject matter of these charges occurred at this location; however, the court heard some evidence regarding the nature of their relationship. Second, a time during which Mr. McLarnon either lived at or used the complainant’s apartment on Grey Street from 2019 until in or about May 2020 when they again ended contact. Finally, they were together at Mr. McLarnon’s father’s apartment on Richmond Street for an unspecified number of days in April 2021 and which ended with M.C.’s departure and contact with police. I will now summarize the relevant evidence for each of these periods of time.
2015/2016-2017/2018
[15] The complainant and accused first lived together for a time in Mr. McLarnon’s room in a boarding house on Curry Street in late 2015 or in 2016 for several months extending into 2017 or possibly 2018. M.C. may have moved out for a time after an argument and then moved back in after a brief relationship with another individual. One of her departures may have been because the landlord did not want a guest rooming with the accused, along with her dog. They resumed an intimate relationship which again ended when M.C. moved out following a confrontation with the accused.
[16] M.C. testified that Mr. McLarnon started becoming abusive during this time. He would strike her on the face or break her glasses or her phone. The accused denied this behaviour. He testified to being on a methadone program at the time and that he struggled to manage M.C.’s drug use. He testified he asked her to leave because of her methamphetamine use and that the landlord wanted her to leave. He was anxious to get her out that particular day because he was going to be late for his methadone appointment. They argued. He claims she then called her father and brother to help her move out. She recalled that her family helped her to move out, but only after the accused assaulted her. She decided she had enough of his physical abuse and called her father. This alleged physical abuse is denied and is not the subject matter of the assault charges.
[17] M.C. first moved from Curry Street back into her parents’ home and then later into her own apartment on Grey Street, along with her dog. There was no contact between them for approximately the next a year and a half.
2019-2020
[18] The accused and complainant resumed contact in 2019 when M.C. was living in her Grey Street apartment. M.C. continued to use drugs throughout this time but obtained them from dealers other than the accused. M.C.’s friend “Erin” had lost housing and was living with her temporarily. One day at “Erin’s” suggestion they called Mr. McLarnon to buy drugs. M.C. learned the accused had also lost housing and was temporarily living at the Salvation Army. She invited the accused to stay at her place. A few weeks later she asked Erin to leave, and the accused continued to stay on.
[19] The accused and complainant disagree whether they resumed an intimate relationship.
[20] M.C. testified she and the accused cohabited as a couple and were intimate partners from the time they resumed contact in 2019 until the incidents that form the subject matter of the charges that occurred at Grey Street up to May 2020. She described that it was nevertheless a volatile and abusive relationship throughout these months. Mr. McLarnon would regularly hit her and cause a black eye or bloody nose and control her movements. He would falsely accuse her of stealing his drug supply. She conceded that she had stolen small quantities of his trafficking supply on a few occasions. She claimed she soon stopped this after he physically assaulted her. However, he would forget either where his supply was or that he had used it. He would blame her and punish her with threats and physical assaults.
[21] The accused’s version of this time is again very different. He claimed that the relationship was initially fine when they resumed cohabiting on Grey Street, but that M.C. became controlling and then verbally and physically abusive of him because of her drug addiction. He recalled that on one morning in April or May 2019, she was upset that he did not have a drug supply at hand before she had to go to work. She smashed a bong over his head. He slapped her in return. Apart from that isolated incident allegedly provoked by her assault, the accused denied that he was physically abusive of her during this period. M.C. agreed that she would be irritable if she was in withdrawal and seeking drugs but denied that she was ever violent with the accused. She specifically denied that that she ever struck the accused over his head with a bong. Again, this incident is uncharged conduct.
[22] The accused claimed that he moved out for a time after the bong incident. He shared a motel room with their mutual friend “Erin”. He testified that he continued to be in regular contact with M.C. as her dealer. He would also still go over to her apartment either to get some of his belongings that he kept there or to walk her dog. She would plead for him to return and promise to behave. He insisted that by this time their intimate relationship was over.
[23] He testified that he resumed living at Grey Street in or about early September 2019 simply because it was too expensive to live in the motel. He claimed his occupancy was merely a “living arrangement” between supplier and user. In any event, the complainant soon resumed stealing his drug trafficking supply that he had obtained “on spot” from his dealer. He initially ignored the thefts and replaced the supply, only for her to steal it again. They then argued. She spat in his face, and he slapped her back. He again moved out of her apartment and returned to a motel, although he left many of his belongings behind because he had no way to move them and keep them at the motel. She continued to ask him to move back. Again, he returned because it was cost effective, and he missed the dog. He kept his drug supply and money in a more secure place to avoid thefts by the complainant.
January-May 2020
[24] This now brings us to the period covering charged conduct between January and May 2020.
[25] The accused testified that the living arrangement carried on until early January 2020, when he found out he had contracted a disease. He suspected he contracted the disease from M.C. He confronted her about it. They argued. He admits that he slapped her on her face during this argument, unprovoked. He then packed some of his belongings and moved in with their friend “Erin”, who was now in her own apartment on Hamilton Street. Between January and March 2020, he would occasionally return to the apartment only to see the dog. He would see M.C. at other locations to supply her with Fentanyl. He returned to stay with M.C. for several days in March 2020 only to ensure that she finally got treatment for her disease. He then left and did not see her again until several weeks later in May 2020, at the time she gave birth to her son.
[26] M.C. agreed there was an argument concerning the diagnosis and treatment of a disease that likely resulted in him striking her. From her perspective, they were still cohabiting as intimate partners throughout this period, although she later learned that he was also spending time at Erin’s place. In contrast to the single slap described by the accused, the complainant maintained that he was very controlling and abusive of her throughout this time. He would strike her on her face at least once a day. he triggers were usually his beliefs about her taking his drugs or in being with other men.
[27] During this time, between January and May 2020, she recalled that the accused assaulted her with a razor blade. She was sitting at the end of her bed, facing the TV, with her back to the accused, who was sitting up by the pillows. She thought she was wearing just a sports bra with her back exposed. The accused used a straight razor blade to cut her from the bottom of her left hip up to her shoulder. She could not recall why he did this but vaguely recalled him making a threat. He made her stay in a cold shower to stop the bleeding. She did not seek medical attention or tell anyone else about it at the time. She later told her father in May 2020, after the birth of her son. The accused denies this incident with the razor blade ever occurred.
[28] M.C. testified to the accused once striking her and causing her nose to bleed during this period. She recalled that she was either sitting on her bed or standing near the nightstand when the accused hit her on her nose. She cannot recall what led up to this event. Her nose started to bleed. She had thought it was broken. The accused ignored her request for help. She had to cup her hands around her nose and run to the bathroom. Mr. McLarnon denies this incident occurred.
[29] M.C. testified the accused also struck her and caused a black eye in this period of charged conduct, where she was bruised around her eyelid and under her eye. Overall, he had done this between five and ten times. On this occasion, she recalled that he made her go to Costco with him and would not let her wear sunglasses to disguise the injury. Again, Mr. McLarnon denies this incident and any conduct by him that caused her a black eye.
[30] M.C. estimated that the accused expressly threatened to kill her between three and five times during this period. She distinctly remembered a time when he accused her of taking his drugs. He pointed an object shaped like a heavy black gun at her head and said, “give me my shit back or I’ll shoot you in the back of the head.” She did not know if the object was real. She believed at the time that he might shoot her over drugs that she did not take. The accused denies this incident occurred.
[31] Beginning in or about January 2020, M.C. claimed that she was isolated in her apartment and that the accused would not allow her to leave unless it was somewhere he wanted to go. He would not even trust her to take the dog for a short walk on her own. She had no cellphone as it had broken when the accused had thrown it on the floor. Mr. McLarnon denies confining the complainant to the apartment. He did not intentionally break her phone. Rather, she missed catching it when she asked him to throw it to her.
[32] Overall, he claims that he was hardly ever there during this period, as he was living at Erin’s apartment.
[33] M.C. did not know she was pregnant and went through an unplanned labour and delivery on her own in her apartment in May 2020. She had thought she was experiencing only cramps and was shocked to have C arrive. She had no phone and was in emotional and physical distress. She remained alone in her bed with the infant until the accused came back to the apartment. The accused testified that he had just happened to come to the apartment to get some belongings and to see the dog when he came upon the complainant and her newborn. In any event, he called for an ambulance and the complainant and premature infant were taken to hospital.
[34] The circumstances of C’s birth forced a change in M.C.’s living arrangements through CAS involvement. M.C. entered into a voluntary service agreement with the child welfare agency where the infant was discharged into the care of her father (her mother was terminally ill at the time). The agreement also included a condition that she refrain from drug use. M.C. returned to her parents’ home with C as part of the CAS agreement when the infant was discharged from hospital.
[35] M.C. testified that she briefly returned to the Grey Street apartment in May 2020 shortly after C’s birth to get some fresh clothes. The accused had previously told her that he had spent money to get the apartment clean and ready to receive the baby. She became angry when she arrived because she saw that the apartment was a mess. Their argument escalated and the accused first struck her with a broom handle and then broke a ceramic bowl over her head, causing a cut on the back of her head. The accused denies this event occurred.
[36] M.C. returned to her parents’ home after this incident, and she told her father about both the injury to her head just caused by Mr. McLarnon throwing the bowl and the injury he caused to her back from several weeks earlier with the razor blade.
[37] Her father testified that he recalled when M.C. returned to the house from this visit to her apartment. She was crying and in a distressed state. She told him about both incidents. He took photographs of the injuries to her head and the scar on her back that day. These photographs were entered as exhibits at trial. Her father testified that he wanted her to report her injuries to the police, but she refused. He decided to let the issue go. It seemed that all contact between his daughter and the accused stopped around that time.
[38] M.C. testified that the accused briefly spoke of wanting to be in the infant’s life and that he once came to her parents’ home to see the baby. M.C. decided there was no future for them and ended contact. The accused agreed that he came to the house once in the months after the child’s arrival, but only to give her drugs and not to see the baby or to try to revive their relationship.
April 2021
[39] The last of the charged conduct is alleged to have occurred in the accused’s father’s apartment over a period of days in late April 2021 and ending on April 28, 2021.
[40] According to M.C. all communication between her and the accused was over until late April 2021, when she happened upon the accused’s father when going to a bus in downtown London. The accused’s father spoke positively of the accused, and she felt encouraged to get back into contact. M.C. first recalled that she went to the father’s apartment following that conversation. However, she acknowledged she may first have resumed communication with the accused and that she also likely went to the apartment once before the events in issue.
[41] In any event, M.C. testified that she “caved in” and went to the apartment that day hoping to find things would be different between her and the accused. When she arrived, she found the accused, his father and her former friend Erin. The accused and Erin were using fentanyl. His father was using another substance. M.C. testified she expected that there might be drugs when she went there and thought she would be strong enough to avoid them. However, she then also joined in the drug use and ended up staying in the apartment for between three and five days before she escaped and contacted her father. She was unsure of the duration because of being confined to the apartment and the drug use. She thought it was no less than three days and no more than five days.
[42] Her father testified that he could not be sure of the exact times, but thought M.C. left the house and was out of contact with him for between two and three days. She had left his home before for a few days since C’s birth but would always stay in contact while away. This disappearance was unusual, and he was worried.
[43] M.C. recalled that she did not want her former friend to be at the apartment and the accused asked Erin to leave. She testified that the situation was initially fine until Mr. McLarnon misplaced his drugs and accused her of stealing them. He struck her face, belly, and legs with his fists. He then raised a pellet gun and threatened: “If you don’t tell me where my stuff is I will shoot you with this.” She had earlier seen him use the pellet gun in the apartment by shooting it at a target on box. She was worried he would shoot her in the head.
[44] She recalled trying to push past him to leave the apartment, but he blocked the doorway and refused to allow her to leave. She could only recall leaving the apartment once during the time she was there before she escaped. That time she was in the company of the accused.
[45] He choked her with his hands around her neck, with his face up against hers. She described being unable to breathe, that her vision blurred, and her hearing changed. She could hear his father in the background, telling the accused to stop because she was going blue or that he was going to kill her. The choking ended when Mr. McLarnon’s father pulled him away from her.
[46] M.C. described that the accused also cut her arm with a knife toward the end of the time in which he held her in the apartment. He had a knife in his hand and was threatening her. She was worn out by the threats and abuse, so held her arms out and told him just to do it. He then cut her left forearm with the knife.
[47] She agreed that she chose to use the fentanyl and that she would have had no information about its composition or potency. She also had memories of being given a pill and of having something injected into her neck without her consent.
[48] Finally, she testified to performing fellatio upon the accused against her will. This happened after he last hit her about one hour earlier. His father’s apartment was largely a single room with a hallway and bathroom. They were on his father’s air mattress. She was unsure where his father was at the time. The accused apologized to her for the conflict and violence and said it would not happen again. She knew he wanted the sexual activity from the previous pattern of his behaviour in their relationship. She did not want to perform the act but went ahead because she was scared he would hurt her. She just wanted to get out of the apartment. She fellated him to ejaculation, after which he said, “I feel like I just made you do that.”
[49] In cross-examination, she was pressed on the fact that she had not previously told police that the accused had administered pills and another substance to her against her will. She explained it was hard to talk to the police about everything that had happened in front of her father and that for that reason, she had also not told police that the unwanted sexual activity also included vaginal sexual intercourse with the accused.
[50] In any event, she testified that she was finally able to leave the apartment when the accused was asleep. She grabbed her phone, left the apartment, and recalled texting her father for help. His father asked her not to leave that way as his son would be angry when he woke up.
[51] The accused testified to a very different version of events at his father’s apartment. He admits she was at the apartment during that time, but their accounts are otherwise irreconcilable.
[52] He recalled that M.C. came by his father’s apartment once before either in late 2020 or earlier in 2021 to buy some Fentanyl, at which time she stole some cash he had left out on the table. He told his father they could not have her over again.
[53] He claimed that he awoke in the apartment in April 2021 to find the complainant there. She was both unexpected and unwelcome. M.C. told him that her father had slapped her in the face and kicked her out of the house. He did not really believe her but allowed her to stay against his better judgment. He did not want his friend Erin to leave because he was worried M.C. would cause problems; however, Erin eventually had to leave. He denied assaulting M.C., choking, or threatening her with a pellet gun or in preventing her from leaving the apartment. He agreed that M.C. performed fellatio on him but testified that M.C. offered to perform the sexual activity, which he accepted. He denied that they engaged in sexual intercourse.
[54] He suspected her of stealing his drugs but did not assault her or threaten her because of it. He testified that M.C. woke him up in one morning and told him her father had put money in her account. They went to the nearby Covent Garden Market to buy breakfast. He lost track of her while he was ordering their food. He found her outside the market using what he recognized to be his fentanyl supply. He brought M.C. back to the apartment to show his father what the complainant had done. He told her to pack her things and leave. He then consumed some drugs and passed out. When he awoke, he found that the complainant and the rest of his drugs were gone. He thought that at least she was unlikely to return given her blatant theft of his drugs.
[55] M.C. did not remember if they went to the market and allowed it was a possibility. However, she denied taking his drugs or being found using fentanyl outside the market.
Events After Leaving the Apartment
[56] The last thing M.C. could remember after leaving the apartment was sending a message to her father for help. She could not recall where she met her father. Her father testified that she messaged him on the morning of April 28, 2021, to ask for help. He picked her up on Wharncliffe Road that morning, which is some distance from where the accused’s father’s apartment on Richmond Street. She was upset, shouting, crying and slightly incoherent. She appeared to have been hurt although he could not see any injuries at the time. He later saw signs of bruising around her neck. He noted that she was fine with no signs of injuries when she left his house two to three days earlier.
[57] Mr. C. contacted police and then brought M.C. to the hospital emergency department at London Health Sciences Centre (“LHSC”). He could not go in with her because of Covid precautions at the time. A few hours later, he was contacted by St Joseph’s Urgent Health Care to come and pick up M.C. Mr. C. had no information or understanding as to how M.C. went from the hospital emergency department at Wellington Street and Baseline Road to the urgent care centre located several kilometres away on Richmond Street at Cheapside Street.
[58] Her largely redacted hospital records from her attendances at LHSC and St. Joseph’s Healthcare for April 28, 2021, were admitted on consent, for the purpose of confirming the date, times, and fact of her attendances, although not for the truth of their contents. These indicate that she was initially booked at the hospital emergency department at 12:17 pm. However, she left without being seen one hour later, at 1:17 pm. The urgent care record from St. Joseph’s shows she was first seen in the department at 3:27 pm, approximately two hours after she left the hospital emergency department before being seen.
[59] M.C. could not explain the circumstances in which she left the hospital emergency department and next attended at the urgent care centre. She thought she may have walked to the urgent care centre and then blacked out. She did not recall having initially attended the LHSC emergency department. Her next memory after messaging her father for help is of waking up on the sidewalk near the entrance to the urgent care centre. Someone who she understood worked at St. Joseph’s brought her inside to be assessed.
[60] Some contents of the urgent care records were put to M.C. in cross-examination. The record noted that M.C. gave a history of having been assaulted by her boyfriend that morning and that his father pulled him off from her. The record also recorded her denial of having consumed drugs. She did not remember telling the nurse this information. She however noted it sounded like what she remembered happening to her at the apartment and was consistent with the injuries shown in the photographs taken at the police station. She rejected defence counsel’s suggestion that it was possible she could have sustained her injuries in another misadventure after she left the accused’s father’s apartment. She explained she did not wake up at the urgent care centre with any injuries that she did not already have when she left the apartment that morning.
[61] Her father picked her up from St. Joseph’s that afternoon and a police officer came to the house to interview her that evening. Officer Kathryn McDonald took statements from M.C. and her father. Officer McDonald described M.C.’s demeanour as elevated, emotional, and fearful at times. She did not have an impression that M.C. was intoxicated, although noted the complainant would go on tangents when reviewing her history. However, she found M.C. was articulate and able to return to her points. The officer testified to seeing the bruising on M.C.’s neck. She asked M.C. about a visible cut on her left forearm and M.C. told her about those circumstances. M.C. attended at the police station with the officer that night and again a few days later for photographs of these injuries. These images were identified by both the officer and M.C. and received in evidence.
Positions of the Parties
[62] The accused acknowledges having slapped the complainant on her face in an argument after he learned he had contracted a disease that he believed he got from the complainant. Apart from this assault, he denies the other alleged conduct. As it relates to the other charged conduct, he acknowledges the gravamen of each of these counts on the indictment are proven beyond a reasonable doubt if I accept the complainant’s evidence. I agree. However, he submits the court should not accept the complainant’s evidence. Mr. McLarnon’s evidence denying these acts ought to be accepted or leave the court with a reasonable doubt. The court cannot accept M.C.’s evidence because of significant issues with her credibility and reliability. In addition to material gaps in her account because of her poor memory, she had a clear motive to fabricate a lie about having been held in the apartment against her will. She had lapsed in her sobriety and consumed drugs in breach of her agreement with the CAS at the time, putting her plan to gain custody of her son into jeopardy. This story about the accused was her way to return to her father’s home and avoid scrutiny by the CAS. This is illustrated by the fact she did not mention her own drug use in her statement to police and denied drug consumption when at the hospital. She agreed that at the time she was concerned about the impact of this episode on her plan to gain custody of her son.
[63] The Crown submits that there are many difficulties with the accused’s evidence such that it should neither be believed nor accepted as raising a reasonable doubt. The accused suggests that it was impossible for him to have performed some of the alleged criminal conduct between January and May 2020 as he was not living at the apartment at the time and was, in fact, living with Erin. This raises an alibi defence for which the Crown was not put on notice, such that an adverse inference should be made. His confident manner in testifying as to the chronology of their relationship was soon exposed to be in doubt when it was shown he could not have the dates of their time on Curry Street correct. His contentions that M.C. told him in April 2021 that her father had slapped her and kicked her out and that her father put money into her bank account were never put to either M.C. or her father. Finally, M.C. testified in a thoughtful, fair and careful way. She acknowledged the frailties in her evidence and what she could not remember. Any motive to lie about the assaults in 2021 to conceal her drug use from CAS is countered by the fact of her report of the earlier assaults to her father in May 2020, which her father then documented. Similarly, the history of her injuries related at the urgent care centre was made before she was interviewed by police and counters any suggestion of recent fabrication. Finally, her demeanour when she was picked up by her father after messaging him for help and the later observations of the police officer of her injuries, as then photographed, are powerful confirmatory evidence of the complainant’s testimony.
Analysis
[64] Mr. McLarnon is presumed to be innocent of each of these offences. He is not required to prove a thing.
[65] Mr. McLarnon testified he did not commit these offences. This is not a credibility contest where I decide which of the conflicting versions of events is true. I remind myself of the following principles from R. v. W.D as I consider the evidence and decide whether the Crown has discharged its burden to prove each offence beyond a reasonable doubt.: First, if I believe Mr. McLarnon’s evidence, obviously I must acquit; Second, if I do not believe Mr. McLarnon’s evidence, but am left in reasonable doubt by it, I must acquit; Third, even if I am not left in doubt by Mr. McLarnon’s evidence, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. McLarnon’s guilt.
[66] The formula does not describe three sequential analytical steps that a trier of fact must pass through, one at a time - rather, the steps are simply different results or alternative findings made at the end of the case when considering the totality of the evidence. A trier of fact must look at all the evidence when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond a reasonable doubt and whether the accused’s exculpatory account must necessarily be rejected. These decisions are all made at the same time based on the same total body of evidence: R. v. Thomas, 2012 ONSC 6653 at paras. 23 and 24.
[67] Mr. McLarnon testified in a clear and straightforward fashion. He admitted to discreditable conduct that did not put him in a positive light, such as his history as a drug dealer and his own difficulties with drug addiction. He also acknowledged one incident of assault when he slapped the complainant during an argument about a disease that he believed he contracted from her.
[68] That said, his testimony was not without issue such that I neither believe his evidence nor find that it raises a reasonable doubt. He ironically appeared to blame M.C. for her drug seeking behaviour and his own drug addiction while it was he who was the dealer and supplier of the Fentanyl. He also had difficulty in keeping the dates of their early relationship straight, which was not significant but for his insistence that their intimate partner relationship was over by late 2019. On its own, this issue is peripheral, but when considered cumulatively with other issues in his testimony, it has a minor role in my reasoning for not accepting his evidence or finding that it does not raise a reasonable doubt.
[69] Part of his defence was that he could not have engaged in the criminal conduct charged between January and May 2020 because he was not living at the apartment and was, in fact, living with a third party at another address. I accept the Crown’s position that this substantively raises an alibi defence for which the Crown ought to have been put on notice and which allows the court to give the evidence no weight or to make an adverse inference: R. v. Bushiri, 2019 ONCA 797 at para. 1. In making this argument, the accused was in effect saying that he did not have the opportunity to commit the offences, such as the assault with the razor blade or the threatened assault with the imitation handgun or the forcible confinement. In any event, and if I am in error that this raised an alibi defence for which notice ought to have been given, I still assign no weight to the evidence. By his own admission, he was still going over to the apartment to see the dog and to get some of his belongings and would still have had an opportunity to engage in the charged behaviour. Overall, his insistence that they were not in a relationship at this time because he was living elsewhere was simply not believable. Similarly, his account that she attended at his father’s apartment with a story of having been kicked out and later suggesting they go to the market because her father put money in her account are not worthy of belief. These contentions were not put to either M.C. or her father and are entirely at odds with the testimony of M.C. and her father. M.C. admitted to having an occasional slip in her sobriety but was otherwise committed to getting custody of her son. Her father also testified to M.C. being in a good situation before the events of April 2021.
[70] The accused also claimed to have found M.C. in the Grey Street bathroom in March 2020, engaging in self-harm by cutting her arm with a razor. He testified that he thought at the time that she was doing it to make it seem as though he was hurting her. He claimed he formed this concern because he had previously learned from Erin that M.C. told her father that the accused broke her glasses during the time that they lived on Curry Street. His explanations for continuing to associate with a woman who caused this much trouble for him are implausible. No such scars consistent with cutting are seen in any of the photographs taken by police in April 2021; only the fresh cut on her left forearm.
[71] I now turn to consider whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. McLarnon’s guilt in respect of each count.
[72] M.C. testified over the course of four days. She admitted to a history of drug use which contributed to problems with her memory. She was on prescribed medication during her testimony which she said would make her tired or occasionally slur her words. Nevertheless, she was articulate, thoughtful, responsive, and appeared to make an effort to be fair and accurate in her evidence. Her testimony was internally consistent, and she was unshaken on the essential elements of the offences.
[73] Although unprepared to review the chronology of their relationship when living at Curry Street, she was responsive to those questions on cross-examination and corrected the timelines once she realized there was an error. She readily admitted what she could not recall and made several concessions, such as stealing his drugs on occasion, that she had lied to her father in the past, and that it was possible that she did go to the market with the accused and that she just did not remember. She was not prone to exaggeration or simply filling in the gaps in her memory. For example, the photographs taken of her injuries show she had broken her glasses. When asked about this, she explained she did not know how they had broken and could not say that they were broken by the accused.
[74] The gaps in her memory such as how long she was at the apartment in April 2021 and how she got to the urgent care centre are not surprising given her admitted history of drug use. I am mindful the court should take care in considering the accuracy of her evidence and also her truthfulness. She admitted to lying to her father in the past to get money to spend on drugs. Of greater concern is her admission that she likely did not mention her own drug use to the investigating officer at the time because she was concerned about how the CAS would respond. These admissions give rise to a motive fabricate the alleged confinement at the apartment to cover the real explanation that she went to the apartment to engage in a drug binge.
[75] She was candid in admitting to these issues but insisted that she did not concoct the April 2021 allegations to avoid consequences with the CAS. She testified she told CAS about this slip and also told the worker of other lapses in her sobriety. She was able to work with the agency and get custody of her son.
[76] I also find the following evidence neutralizes the concern about fabrication and otherwise restores my faith in the relevant aspects of her testimony, notwithstanding the gaps in her evidence:
a. She told her father of the razor blade assault and the smashing of the bowl on her head in May 2020, and he took photos of her fresh injury to her head and the scar on her back at that time. This significantly predated her time at the accused’s father’s apartment and her report to police by one year.
b. The St. Joseph’s Urgent Care record, before she went to police, documents a history of having been assaulted by her “boyfriend” that morning. I do not rely on this information as corroboration of her testimony. However, again, it answers the suggestion that her later statement to police was a fabrication.
c. I also note that M.C. was unshaken in her recollection that her bruises to her neck and her cut to her arm were caused by the accused, notwithstanding the unaccounted-for hours between the two hospitals and her gap in memory. She did not hesitate to explain that she “woke up” at St. Josephs with the same injuries as she had when she left the apartment that morning.
d. Both the investigating officer and M.C.’s father testified to M.C.’s demeanour that day in April 2021 as being emotional and upset.
e. Finally, the police photographs of M.C.’s injuries support her testimony as to the assaults that occurred in the accused’s father’s apartment. I have reviewed the images and agree they show bruising around her neck consistent with the choking described in her testimony, and the laceration to her left forearm, also consistent with her testimony about being cut on the arm by the accused with a knife.
[77] I now turn to the alleged sexual assault. There is no dispute there was sexual activity by way of fellatio. The issue is consent. Mr. McLarnon said she offered to perform the sexual activity, whereas M.C. says she submitted to his demonstrated expectation that she perform the act out of fear. The analysis is complicated by her previously undisclosed assertion that they also had sexual intercourse without her consent that day. The Crown is clear that this allegation does not form the subject-matter of the charge. M.C. offered this evidence when being pressed on other details that she had not shared with the police during her statement. She explained she was embarrassed and did not want to discuss the details of the sexual activity in front of her father. However, her statement was not taken in the direct presence of her father, although he was in another room nearby in the family home. Her explanation for not disclosing this event is plausible in circumstances where she had been through a traumatic event and had detailed a host of incidents that had happened to her. I accept that this incremental disclosure does not undermine her account of the specific sexual activity admitted by the accused. Consent requires a voluntary agreement of the complainant to engage in the sexual activity in question. There is no consent to sexual activity where a complainant concludes that she has no choice in the matter, for example because of violence or threats of violence: R. v. Williams, 2020 ONSC 206 at para. 28; R. v. D.S., 2004 CanLII 7198 (ON CA), [2004] O.J. No. 3440 (C.A.) at paras. 45-50. I have previously outlined my reasons for finding M.C. credible in her testimony on the essential elements of the charged offences. I accept that she did not voluntarily agree to perform this sexual act but submitted out of fear in the context of a series of violent assaults and threats in the apartment.
[78] Accordingly, on the basis of the totality of the evidence that I do accept, I find the Crown has proven beyond a reasonable doubt that the accused is guilty of all counts on the indictment as follows:
a. Count 1 – s. 264.1 - uttering a threat to cause death. I find the Crown has proven the threats to cause death to M.C. with the object shaped like a handgun in early 2020 and then with the pellet gun in April 2021.
b. Count 2 – s. 267(a) - assault through threats to use a weapon, being the object shaped like a handgun in early 2020 and then with the pellet gun in April 2021.
c. Count 3- s. 267(a) - assault with a weapon by way of a razor blade between January 1, 2020 and May 15, 2020.
d. Count 4 – s. 279(2) - unlawful confinement of M.C. in the accused’s father’s apartment in April 2021.
e. Count 5 – s. 267(a) - assault of M.C. with a weapon, namely a bowl, between May 1 and May 31, 2020.
f. Count 6 – s. 266 - assault of M.C. between January 1, 2020 and April 27, 2021, being the slap to her face in January 2020, the striking of her face causing a bloody nose, the striking of her face causing a black eye and the physical assaults in the apartment in April 2021 described as strikes to her face and body.
g. Count 7 – s. 267(a) - assault with a weapon by use of a knife on her arm on or about April 26, 2021.
h. Count 8 – s. 267(c) - committing an assault with choking on or about April 28, 2021; and
i. Count 9 – s. 271 - committing a sexual assault on M.C. on or about April 28, 2021.
Justice K. Tranquilli
NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record.
Released: October 29, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
JAMES NATHAN MCLARNON
REASONS FOR JUDGMENT
Justice K. Tranquilli
Released: October 29, 2024