COURT FILE NO.: 8746/23

DATE: 2024/12/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

D.N.

Defendant

W. Trent Wilson, for the Crown

Kenneth G. Walker, for the Defendant

HEARD: July 4, 5, 8 and September 6, 2024

rasaiah j.

reasons for judgment

OVERVIEW

[1] D.N. stood charged as follows:

1. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did commit an assault on C.B. contrary to section 266 of the Criminal Code;

2. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said region, did, in committing an assault, choke, suffocate, or strangle C.B., contrary to section 267(c) of the Criminal Code;

3. That D.N. between the 1^st day of April in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did in committing an assault upon C.B. use a weapon to wit, steak knife contrary to section 267(a) of the Criminal Code;

4. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in in the year 2022 at the City of Elliot Lake in the said Region, did in committing an assault upon C.B. use a weapon, to wit, night lamp contrary to section 267(a) of the Criminal Code;

5. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did in committing an assault upon C.B. use a weapon, to wit, cigarette butt contrary to section 267(a) of the Criminal Code;

6. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did maim C.B. thereby committing an aggravated assault contrary to section 268 of the Criminal Code;

7. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did by word of mouth knowingly utter a threat to C.B. to cause death to C.B. contrary to section 264.1(1)(a) of the Criminal Code;

8. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did by word of mouth knowingly utter a threat to C.B. to cause death to C.B. contrary to section 264.1(1)(a) of the Criminal Code;

9. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did by text knowingly utter a threat to C.B. to cause death to C.B. contrary to section 264.1(a)(a) of the Criminal Code;

10. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did without lawful authority confine C.B. contrary to section 279(2) of the Criminal Code;

11. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did break and enter a certain place to wit dwelling house situate at 155 Axmith Ave., Elliot Lake, ON Canada P5A 1B4 and did commit therein the indictable offence of mischief contrary to section 348(1)(b) of the Criminal Code;

12. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did possess a firearm, to wit ITHACA 900 shotgun without being the holder of a licence under which he may possess it contrary to section 91(1) of the Criminal Code;

13. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did possess a firearm, to wit COOEY 64 Rifle without being the holder of a licence under which he may possess it contrary to section 91(1) of the Criminal Code;

14. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did have in his possession a weapon, to wit air pistol, for the purpose of committing an offence contrary to section 88 of the Criminal Code;

15. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did commit a sexual assault on C.B. contrary to section 271 of the Criminal Code;

16. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to prohibition order imposed at sentencing – Criminal Code contrary to section 117.01(1) of the Criminal Code;

17. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to prohibition order imposed at sentencing – Criminal Code contrary to section 117.01(1) of the Criminal Code;

18. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did without lawful excuse, store a firearm, to wit ITHACA 900 shotgun in a careless manner contrary to section 86(1) of the Criminal Code;

19. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did without lawful excuse, store a firearm, to wit COOEY 64 Rifle in a careless manner contrary to section 86(1) of the Criminal Code;

20. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, with intent to wound C.B. did discharge an air pistol at C.B. contrary to section 244.1(1) of the Criminal Code;

21. That D.N. between the 1^st day of May in the year 2016 and the 1^st day of April in the year 2022 at the City of Elliot Lake in the said Region, did commit an assault on C.B. contrary to section 266 of the Criminal Code;

22. That D.N. between the 1^st day of January in the year 2020 and the 1^st day of January in the year 2022, at the City of Elliot Lake in the said Region, did commit an assault on J.H., contrary to section 266 of the Criminal Code.

[2] On day one of the trial the Crown advised that they were not proceeding on counts 12, 13 and 17 and they were marked withdrawn.

[3] The accused pleaded not guilty to the remaining counts.

[4] When the Crown closed their case, the Crown agreed that there was a lack of evidence regarding counts 5, 18 and 19, and they were marked dismissed. Count four was amended on consent to delete the word “night” in front of the word “lamp”.

[5] At the start of submissions, the Crown outlined that the Crown was seeking convictions on counts 1, 2, 3, 4, 6, 7, 10, 11, 15, 16 and 22. Count 1 was amended on consent to remove the words “commit an” and “on”, to read that he “did assault C.B.”. On count 6 the Crown was inviting conviction on the included offence of s. 267(b), and on count 11, the offence of mischief s. 430(4). The Crown for lack of evidence of intent, was inviting the court to dismiss counts 14 and 20. In the event that the Indictment is not completely marked as such, I direct that it shall be. I state this because the process of the court being advised of same occurred across multiple days. Finally, counts 8, 9 and 21 were marked as stayed at the request of the Crown.

[6] The primary complainant is C.B. with whom D.N. had been in a relationship.

[7] There is one other complainant J.H. with respect to count 22.

[8] On the remaining counts (11 in total) this is one of those cases where the main issue really is credibility and reliability as acknowledged by both counsel; whether the acts complained of occurred.

DISCUSSION AND ANALYSIS

GENERAL

[9] While I may not refer to all the evidence, submissions including case authorities and legal principles referred to specifically, I have considered all the same. I recognize that my analysis is not to be a credibility contest and I have not done that; I have looked to the whole of the evidence. There are several references to credibility, as this was a main issue raised by both Crown and Defence.

LEGAL PRINCIPLES

Burden of Proof

[10] The accused started this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that he committed each offence with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. The burden never shifts. Reasonable doubt is based on reason and common sense. It is a doubt that arises logically from the evidence or an absence of evidence.

Credibility and Reliability

[11] In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 9-13):

9 … [E]very witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, … at p. 134 S.C.R.

10 … [N]o inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.

11 … [D]espite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.

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

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

[12] It is well established that young witnesses do not always have the same ability as adults to recall precise details or to describe events fully and accurately. They may not be exhaustive and accurate in their description of details that may not be as important to children, such as time and place. For this reason, inconsistencies in their testimony may be less significant than they would be in the testimony of an adult. Children may perceive things differently than adults and may be granted some leeway of recall, particularly as to peripheral matters The important thing is to consider whether deficiencies of this sort mean that the young witness has misconceived the events s/he described using common sense; acknowledging that the standard of proof cannot be reduced simply because of their age.

[13] Reasonable doubt applies to the issue of credibility. On any given point, I may believe a witness, disbelieve a witness, or not be able to decide. I need not fully believe or disbelieve one witness or a group of witnesses. On an offence, if I have a reasonable doubt about D.N.’s guilt arising from the credibility of a/ witness/es, then I must find him not guilty of the offence.

[14] Reliability is a separate issue from credibility. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. Of note, at para 41, the court wrote, “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[15] It is important in sexual offence cases to avoid stereotypical reasoning in making determinations of credibility and reliability. Victims of abuse will behave idiosyncratically to abuse, and often counterintuitively, and the law does not require a victim of sexual assault to avoid for a court to find him or her credible: R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), at para. 58; aff’d 2018 SCC 6, [2018] S.C.J. No. 6, at para. 2.

The Rule in W. (D.)

[16] D.N. testified. Accordingly, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“W.D.).

SUMMARY OF EVIDENCE OF EVENTS REGARDING ARREST AND STATEMENT OF D.N.

[17] On August 29, 2022, D Platoon of the Elliot Lake Ontario Provincial Police (“OPP”) detachment was notified by Provincial Constable Mabley (“PC Mabley”) that there were grounds to arrest D.N. for various assault-and-weapons related charges including sexual assault. At 17:52 hrs., Provincial Constable Koshowki (“PC Koshowski”) initiated a traffic stop on a black Toyota, with Provincial Constable Groot (“PC Groot”), Provincial Constable Kinchuthan (“PC Kinchuthan”), Provincial Constable Lazaravec (“PC Lazaravec”), and Sgt. McEachern. D.N. was told to exit the vehicle. At 17:53 hrs., PC Groot arrested D.N. for sexual assault. PC Groot searched D.N. and cuffed him to the rear. He was placed into a patrol vehicle. At 17:58 hrs., PC Groot re-arrested D.N. for the rest of the additional charges, reading the charges from the computer. At 18:01 hrs., PC Groot read D.N. his right to counsel, which he stated he understood and requested to speak with Duty Counsel. At 18:02 hrs., PC Groot read D.N. the primary caution, and he stated that he understood. At 18:02 hrs., PC Groot and PC Kinchuthan departed with D.N. to the Elliot Lake OPP detachment.

[18] At 18:05 hrs., the officers arrived at the Elliot Lake OPP detachment. At 18:09 hrs., PC Koshowski and PC Lazarevic lodged D.N. into cell number 6. At 18:10 hrs., D.N. told PC Kunchuthan that he wanted a different lawyer and requested to speak with Kenneth Walker. At 18:11 hrs., PC Groot contacted Duty Counsel and left a voicemail. At 18:14 hrs., PC Groot was notified that D.N. wanted to speak to Mr. Walker. He put him in touch with Mr. Walker at 18:19 hrs. At 18:22 hrs., he was returned to his cell.

[19] D.N. voluntarily provided a statement to PC Mabley from 20:28 hrs. to 21:31 hrs.

POSITION OF D.N.

[20] In this analysis it is recognized and understood that D.N. denies ever physically or sexually assaulting or threatening C.B., or being in possession of guns contrary to a weapons prohibition, and assaulting J.H.

EVIDENCE

[21] The court heard from 12 witnesses in total, including D.N. Fourteen exhibits were tendered without opposition including two agreed statements of facts.

RELATIONSHIP DATES

[22] C.B. testified that she was in a relationship with D.N. from 2016 to 2022; they parted ways in April of 2022. C.B. agreed that she and D.N. began dating in March of 2016 and they started living together somewhere around June of that year. D.N. did not know the exact date either that they started dating or living together. He testified that they started dating in 2016 and it was mid-summer of 2016 that they started to live together at his mother’s residence. Except for spending some time with each other for a couple of days in July of 2022, the parties’ evidence aligned that the relationship ended April of 2022.

NAMES REFERENCED IN THE EVIDENCE

[23] “L.” was referred to and is the youngest child of C.B.

[24] “Lyttle” was referred to and is a former East Algoma OPP officer who was the initial investigating officer on the case, who is alleged to have been removed from the case due to conflict of interest, and who is no longer in the employ of the OPP. Lyttle took the first statement from C.B. on August 25, 2022. The conflict of interest was stated to be his involvement regarding the return of a quad by D.N. to C.B. for which there was no record in the Records Management System (“R.M.S.”), and this was raised by D.N. when he was interviewed by PC Mabley after his arrest.

[25] “Sgt Hebner” was referred to and is an officer with the OPP who at times was involved in the case, or supervising PC Mabley with respect to this case. She is stated to have completed a domestic violence report with C.B. after C.B. gave her first statement to Lyttle on August 25, 2022.

[26] “G.M.” was referred to and is a paramedic who was the partner of paramedic E.W. who responded to a report of injury to C.B.’s ankle.

[27] “D.B.” was referred to and is a friend of the accused, with whom, D.N. was stated to have gone on a trip to Sudbury with during the time frame of certain allegations.

[28] “J.” was referred to; as the new girlfriend of the accused as of August of 2022.

[29] “Jay” was referred to as a friend of the accused, with whom D.N. is stated to have spent time with.

[30] “P.” was referred to and is the husband of D.R., friend of C.B.

[31] “A.” was referred to and is the former partner of I.G., friend of C.B.

[32] “F.” was referred to and was stated to be a friend of C.B.

IDENTITY AND JURISDICTION (APPLICABLE TO ALL COUNTS)

[33] There is no issue, and it is admitted that the correct D.N. is before the court and that the court has jurisdiction over the offences outlined on the Indictment.

OTHER ADMISSIONS

[34] The statement made by D.N. to PC Mabley on August 29, 2022, was given voluntarily and admissible for purposes of cross-examination of D.N.

[35] G.H.’s birthday is May 17, 2012, and J.H.’s birthday is September 10, 2010.

[36] On August 25, 2022, Lyttle conducted a video/audio interview of C.B. at the Elliot Lake OPP detachment.

[37] On August 26, 2022, at 2:30, Lyttle and Sgt. Gordon went to C.B.’s home related to seizure of guns. C.B. reported that D.N. broke her leg and she was in so much fear to report him because he threatened her that if she ever reported him to police, he would kill her.

[38] PC Brisson was working dayshift September 7, 2022, from 7:00 a.m. to 5:00 p.m. PC Brisson at 1:46 p.m. on September 7, 2022, took an audiotaped statement from D.R., friend of C.B.

[39] On September 7, 2022, at 4:30 p.m., C.B., B.C., J.H. and G.H. attended the Elliot Lake OPP detachment.

[40] PC Brisson at 4:50 p.m. on September 7, 2022, took a videotaped statement of J.H.

[41] PC Brisson at 5:12 p.m. on September 7, 2022, took a videotaped statement of G.H.

D.N.’S CRIMINAL RECORD

[42] D.N.’s record was introduced by defence when examining D.N. in chief. D.N. confirmed the record presented to him and filed as Exhibit 13. I introduce the topic here because the defence presented as relying on a specific entry to question C.B.’s credibility (she was angry about the circumstances of the offence) and to give background to D.N.’s evidence concerning the arguments that he and C.B. had. Specifically, defence drew D.N.’s attention to a sexual interference conviction. D.N. confirmed that he was in a relationship with C.B. when the acts related to the offence occurred. D.N. testified that this situation figured into their relationship continuously thereafter – that C.B. “always threw that in his face”. It made him angry, and they argued.

[43] C.B. did not deny that it would come up in conversations between her and D.N. It would come up in arguments. She was very angry about that situation. She agreed she viewed this as he cheated on her.

[44] However, on the whole of the evidence, as detailed within, I find that whether this was brought up in arguments and how often is of no consequence or impact on C.B.’s credibility. D.N. testified that while she brought this up, it did not lead him to assault her. Next, C.B. took D.N. back notwithstanding on more than one occasion. The conviction date is April of 2018. Her report to police on the allegations in this case is in August of 2022. The text message exchanges filed that C.B. linked to three different time frames thereafter in their relationship do not show C.B.’s expressing issues with D.N. being related to that conviction and/or her referring to that conviction at all. They refer to his behaviour towards her specifically.

WITNESSES (GENERAL SUMMARY)

Crown Witnesses

[45] PC Mabley testified. He is a member of the East Algoma OPP and has been since December 29, 2017. He is currently in the position of detective constable. He becomes the officer in charge of the investigation with respect to the charges. He interviews C.B. and D.N.; takes audio video taped statements of others and was tasked with disclosure for the case. He did not know the complainants and/or D.N. prior to his involvement. I found no markers of credibility and/or reliability issues with his evidence that would cause me not to believe and/or accept his evidence.

[46] Sgt Gordon testified. She has been an officer for 31.5 years and has been a Sgt. for 23 years with the East Algoma OPP posted to Elliot Lake detachment. She was involved in seizure of weapons from C.B.’s residence. She did not know the complainants and/or D.N. prior to her involvement. I found no markers of credibility and/or reliability issues with her evidence that would cause me not to believe and accept her evidence.

[47] J.H. testified. He is a child, son of C.B. He is the complainant as stated in count 22. He gave a statement to police that was admitted on consent as evidence pursuant to s.715.1 of the Code. He is stated to have made other observations concerning C.B. and/or D.N., their relationship and/or interactions during the time frame of the charges. I found no significant markers of credibility and/or reliability issues with his evidence that would cause me not to believe and accept his evidence. Much of his evidence coincided with other evidence on the trial. J.H. equally testified about good things concerning D.N. J.H. testified about things his mother did that he did not like concerning D.N. His evidence was very balanced. J.H. stood by what he said that he had a good relationship with D.N. and D.N. did things with him. J.H. answered questions on cross-examination as he did in chief. He answered all questions he understood. He questioned when he did not understand the question or asked them to be repeated. He did not make up answers and stated when he could not remember things. He was articulate. He agreed with suggestions that were reasonable. While he did not remember the date of the incident, there is no question on the whole of the evidence as to the time frame and that there was an incident involving him.

[48] G.H. testified via CCTV with VWAP support person. She is a child, daughter of C.B. and was present during the event on which the charge involving J.H. is based and further is submitted to have made other observations concerning C.B. and/or D.N., their relationship and/or interactions during the time frame of the charges. She gave a statement to police that was admitted on consent as evidence pursuant to s.715.1 of the Code. Based on her age and passage of time, including choice of words to describe what she saw D.N. do to J.H., I found no significant markers of credibility and/or reliability issues with her evidence that would cause me not to believe and accept of her evidence. Any differences between her evidence and that of C.B. and/or J.H. were in my view, of no negative impact and much of her evidence coincided with other evidence. G.H. was candid about her feelings that it made her mad that her mother kept taking D.N. back and all the back-and-forth stuff. G.H. agreed she loves her mother and that she wanted to protect her mother. She agreed that she “definitely” did not want D.N. to come back to the home and that she did not really like D.N. She agreed that D.N. sent her to her room a couple of times. She agreed that D.N. never hit her. G.H. knew they were coming for court. G.H. agreed that they talked about what was going to be said in court, but her mother did not talk to her about bad things that happened to her (her mother) and her mother did not talk to G.H. about what G.H. was going to say in court or tell her to make sure she told the court what happened to J.H. She testified that what happened to J.H. was something she knew about. She agreed that she did not have specifics about other stuff. None of G.H.’s evidence given her straightforward candour concerned me with respect to her credibility. Her explanations for not getting involved when she saw arguments and/or D.N. hit C.B. on that occasion described do not defy logic. She presented as a child who tried not to get involved and did not. There was no evidence that she ever interfered with C.B. “taking D.N.” back the number of times she did; it presented as a fact of life she had to live with and did. She did not exaggerate and did not attempt to give evidence about something she did not know.

[49] M.C. testified. She is C.B.’s adult daughter. She has known D.N. for years based on his involvement with C.B. She was present for incidents during which time it is alleged that D.N. threatened C.B. She is submitted to have made other observations of C.B. and/or D.N., their relationship and/or interactions during the time frame of the charges, including the quad incident (she was there). I found no markers of credibility and/or reliability issues with her evidence that would cause me not to believe and accept her evidence. There was other evidence that coincided with her evidence. She did not exaggerate and was candid about her feelings and actions. She testified that she called the police in the past to find out options of what she could do because her mother did not want to go to police. She did not present as giving evidence for any ulterior purpose and/or simply because she is C.B.’s daughter.

[50] B.C. testified. He is C.B.’s adult son, with whom, C.B. and D.N. resided for a period, and during the time C.B. suffered an injury to her ankle during the time frame of the charges. He has known D.N. for years because of his involvement with C.B. He is submitted to have made other observations of C.B. and/or D.N., their relationship and/or interactions during the time frame of the charges. There were no markers of any issues with his credibility and/or reliability that would cause me not to believe and accept his evidence. There was other evidence that coincided with his evidence. He did not exaggerate, and only provided information he knew. He presented as answering all questions asked the best he could. He was candid about why he did not get involved and having issues with dates. He satisfactorily explained that while he observed injuries and may have had his suspicions, he had no information as to the cause of them because his mother would refuse to give him information or redirect the conversation. He believes the reason for this is that his mother was aware that he had a temper. His evidence of seeing injuries aligns with other witness evidence, over the course of C.B.’s involvement with D.N. B.C. presented as honest and presented no indication that he was not telling the truth. He did not present as giving evidence for any ulterior purpose and/or because he is C.B.’s son. The evidence he gave was specific to what he observed when he was able to make those observations. He did not exaggerate. He did not offer information he did not know or recall.

[51] T.H. testified. She is a friend of C.B. She met C.B. after C.B. was hired to work at the shelter C.B. was working at. She trained C.B. She is submitted to have made observations concerning C.B. during the time frame of the charges.

[52] D.R. testified. She is a friend of C.B. She is a mortgage broker and owner of a cleaning business and a restaurant. She met C.B. in 2020 or 2021. She was training C.B. to do mortgages, and C.B. also worked for her and her husband at their restaurant they owned at the time. She is submitted to have been present and/or made observations concerning C.B. and/or D.N. and J.H., their relationship and/or interactions during the time frame of the charges. I found that the information she testified to, overall, coincides with C.B.’s evidence and the differences I found had no significant impact.

[53] I.G. testified virtually via the VWAP office in Elliot Lake. She is a friend of C.B. She met C.B. through her work at a hair salon; C.B. was a client. She knows D.N. and has for over 20 years; meeting him through family, meaning his parents and her parents were friends. She is submitted to have been present and/or made observations concerning C.B. and/or D.N., their relationship and/or interactions during the time frame of the charges. I.G. had been around D.N. and C.B. as a couple with her then partner, A. They socialized one to two times a month, over the course of about a year and a half (potentially 18 to 36 times) generally at C.B.’s house. The relationship was such that I.G. either would drop over or be invited, one or the other. This started the beginning of 2021 and carried into 2022. I.G.’s evidence overall coincided with C.B.’s evidence.

[54] E.W. testified. He is a paramedic, of 16.5 years, the last ten being in Elliot Lake, and one of two paramedics who attended a call for medical assistance related to an injury sustained by C.B. to her ankle during the time frame of the charges. He attended with his partner at the time. He and his partner were both involved in examining C.B. and preparing the Patient Report related to the call out. He did not know either C.B. or D.N. prior to this involvement. There were no markers of concern regarding his credibility and/or reliability.

[55] C.B. gave two statements to police, one on August 25, 2022, and the other on September 1, 2022. I deal more with her credibility throughout the decision below. Generally speaking, her evidence was not perfect and included admissions of lying, but overall examining the whole of the evidence, I found her credible, reliable, and accept much of her evidence and that the explanations she provided with respect to her actions, her disclosing and not disclosing satisfactory and did not defy logic.

Defence Witnesses

[56] D.N., testified. I deal more with his credibility throughout the decision. Generally speaking, overall, I did not find D.N. to be credible. There were significant issues in my view with his evidence. D.N.’s evidence, including manner of giving evidence, presented to me as an attempt to distance himself from the allegations. He contradicted himself more than once. His prior police statement version concerning the guns was markedly different from his trial version. I find there was reliable evidence tendered that contradicted his denials of never ever physically harming and/or threatening C.B. and contradicted his evidence that he was not a jealous person when it came to C.B. as she described. He contradicted himself on being a jealous person. He downplayed his anger actions of throwing a coffee pod across a room at a wall - he was angry “a little bit” and actions of taking a hatchet inside the camping trailer and slamming it on the trailer counter. He contradicted himself regarding an alleged conversation he had with C.B. about oral sex.

[57] I.G. testified that she had a conversation with D.N. about his relationship with C.B. and circumstances. It occurred in the parking lot of her workplace. She saw D.N. crossing the parking lot. She was hoping that he did not see her, but he did. She described him as being very intoxicated. It was about 9 a.m. as she works for 9 a.m. D.N. told her that he did not sleep that night. He was crying. She asked him if he was okay. He told her that he missed C.B., “she is my queen, I love her”. She responded, “but D., you hit her”. He replied, “she makes me angry; I cannot help myself”. She told him that he could break the cycle, and don’t hit her, it was not right, not acceptable. He asked I.G. not to tell C.B. that she saw him or had a conversation. He left and walked across the street. She went into her workplace. She did not see him after she walked into her workplace. D.N. and C.B. were not together at this time which evidence she based on a conversation she had with C.B. and a belief that came from something she was told by C.B. D.N. testified that he did not recall the conversation details with I.G. He does remember that they had a conversation. He does not remember the specifics.

[58] The court would hear through G.H. that unbeknownst to either C.B. or D.N., she saw D.N. hit C.B.

[59] The court would hear through M.C. that she heard D.N. threaten C.B. and saw text messages in which he threatened C.B.

[60] The court would hear from other witnesses who saw injuries on C.B. and behaviours/actions of C.B. throughout her relationship with D.N. that coincided with her evidence that she was being abused and hiding the abuse.

Other

[61] None of the evidence caused me to be concerned that the evidence of the family members and friend witnesses was tainted or that any of them colluded and/or were influenced by another. I found that none of them exaggerated and were doing their best to provide what they knew and how they knew it. It is of no concern to me that many of these witnesses did not see D.N. ever physically assault C.B. C.B. testified that he would do this when no one else was around. Many of the witnesses expressed concern or belief that they concluded or were suspicious of themselves that something was going on more than what C.B. was disclosing.

TIME FRAME: 1ST MAY 2016 – 1ST APRIL 2022 (APPLICABLE TO ALL REMAINING COUNTS except 22)

[62] As for this time frame in the indictment, if the evidence of C.B. was accepted, there is no question that all the acts complained of that the Crown seeks convictions on fall within this time frame beyond a reasonable doubt based on the facts of the relationship.

TIME FRAME COUNT 22: 1ST DAY OF JANUARY IN THE YEAR 2020 AND THE 1ST DAY OF JANUARY IN THE YEAR 2022

[63] As for this time frame in the indictment, the evidence of C.B., and D.R. and the text message dated December 21, 2021, filed leave no question in my mind that the acts complained of under count 22 fell within this time frame beyond a reasonable doubt.

PLACE: ELLIOT LAKE (APPLICABLE TO ALL REMAINING COUNTS)

[64] While D.N. denies the acts complained of and/or has a different version of facts, D.N.’s evidence as well, leaves no question that all the places at which all acts complained of occurred in the District of Algoma. C.B. had lived first lived with his mother on Bailey in 2016, then at Beaumier. They moved Fall of 2016 to Beaumier. They lived there for over a year followed by Hillside and Westview, followed by Axmith, all in Elliot Lake, Ontario. C.B. has been at Axmith approximately the last four to five years. Spragge is in the District of Algoma.

DISCLOSURE OF ALLEGATIONS/MOTIVE/FABRICATION ISSUES RAISED

[65] I accept the explanation of C.B. that on the first attendance with police with Lyttle, she was not prepared to report everything, meaning that she was embarrassed to say some of the things that had happened. She made notes after her first attendance the next day on her own, alone, of things that happened during the relationship. The purpose she explained was to know what she wanted to say in her statement. During the first statement, she was told that if she remembered anything else to come back, and she knew that she needed to say more than what she did. She brought those notes with her to police when she was interviewed a second time by PC Mabley and PC Mabley took a copy of her notes on August 26, 2022.

[66] PC Mabley testified that the purpose of the second statement of C.B., was to obtain more details and complete information. His role was to review the summary of Lyttle’s interview to determine holes that needed to be filled in, to make it whole and more detailed. He did identify that there was a reference to C.B.’s clothes being ripped off and this was something he wanted to explore when he interviewed C.B. PC Mabley also explained that Lyttle was a relatively inexperienced officer at the time having no specific training to obtain a victim statement of this magnitude. Further, Sgt. Hebner had concluded that the statement taken by Lyttle was incomplete. At that time, PC Mabley was a crime unit member and had experience in victim interviewing techniques, sexual assault training and interviewing victims of sexual assault. Seventy-five percent of the crime unit investigations related to sexual assault.

[67] PC Mabley described C.B.’s demeanour while giving her statement to him as being visibly upset, crying and was nervous before giving the statement.

[68] There were several instances after PC Mabley interviewed C.B. where she would contact him by phone to ask him about D.N.’s status in court. He contacted her after one occasion D.N. was remanded to tell her when he was remanded. He described the conversations to be of this nature. In addition, C.B. did email PC Mabley at his work email address to which she attached some screen shots of text messages she stated were between herself and D.N. She also provided photographs of her face and bruising on her face which she said were caused by D.N. (she stated to him on the phone).

[69] The whole of the evidence rebuts that C.B. reported false allegations to police simply because she was upset that D.N. had moved on to another relationship in August of 2022 and/or because D.N. may have made threats to her to contact C.A.S. on her with respect to the children. There was an abundance of evidence related to timeframes occurring long before C.B. reported to police.

[70] C.B. was aware that D.N. have moved on. She did not deny this. She testified that she did not know if the woman was his girlfriend or not but knew she potentially was. I took this response as clarifying that she did not know for certain in respect of her “knowledge” and giving her information to police. Her explanation makes sense. D.N. testified that the woman did not come to see and start spending time with him until August 21, 2022, four days prior to her report to police, and although he and this woman J. went out in Elliot Lake, he described that they were at his mother’s place and went camping. As to knowing D.N.’s whereabouts, C.B. was candid that she did have others telling her about D.N.’s whereabouts which she testified was related to D.N. being arrested. The information she provided to police that referred to the woman was for the purpose of identifying where D.N. could be located to be arrested. The full context of her statement to PC Mabley as referred to at trial supports this; the officer asked her. I believe C.B. that she did not take from that question that police were considering releasing him if he was arrested. She interpreted this question as to where he could be arrested at, not an alternative place he could live post-charge. On re-examination, the Crown had C.B. read the section, which corresponded with her evidence and interpretation – addresses she knew D.N. to be back and forth at. Lyttle was asking about addresses he could be found at.

[71] PC Mabley agreed that C.B. knew about the new woman. He did not agree that “all of a sudden after there were all these charges” but agrees C.B. knew D.N. had a girlfriend. PC Mablely agrees there was the name of the girlfriend referred to in his notes. He was told that this was the girlfriend of D.N. The entry meant concerning her and her vehicle, D.N. not having a vehicle; meaning he believed he may be with her and or in her vehicle. This note was made in respect of finding D.N. He agreed that he had spoken to C.B. before this.

[72] I.G. recalled a conversation with C.B. in August of 2022 during which C.B. told her that D.N. was not stalking her at that time and had moved on, meaning he had a girlfriend. This does not contradict C.B.’s evidence.

[73] Again, my assessment of C.B.’s evidence was that she was not denying that she was aware of D.N. moving on and that she told the police the information because she was asked.

[74] As for not wanting D.N. to get bail, I.G. testified that she remembered having a conversation with C.B. wherein C.B. stated she did not want D.N. to get bail. At trial, C.B. was candid that she did not want D.N. to be released. She explained she was worried about him being released. She disagreed that she reported more occurrences due to her employment, namely that she knew enough that if there were more charges and more serious charges he would not be released. That was not her intention, but she knew that. Text message exchanges were filed at trial that predate August 26, 2022, and the were identified to by her to police as support for the further “next day” allegations reported. D.R. and M.C. provided compelling evidence that corresponded with the “next day” allegations. Accordingly, C.B.’s credibility for me remained intact on this issue.

[75] Further, C.B. explained she was fearful of D.N. Every time she asked D.N. to leave her house he refused. She had bars installed on her doors for that very reason to keep him from coming back, installed long before August 25, 2022. She needed them because D.N. would kick the door in and come back in. She explained, “he would do whatever he did, and he would leave, she would lock the door, and he would come back and kick the door in and come in anyway. There were locks on both doors before she put bars on. She has both locks and bars still. This installation was before they broke up. She does not use the bars anymore because she is not scared because D.N. is in jail. She was still using them in August of 2022. As to how many times he kicked in the door, C.B. explained that he kicked it in once, and that busted the side of the door (the door frame), so after that made it easy for him to kick in after. I.G. testified that C.B. put bars her home doors so that D.N. could not break in. She believes it was the summer of 2021. She saw the home before and after the bars were installed. She had not been to C.B.’s home for over a year. The last time she saw the home, the bars were on the door.

[76] D.N. denied that he ever kicked in the door frame. During cross-examination he testified that he “believed” he was aware that C.B. had bars on her doors. The way he answered this question caused me pause. He would continue to present as incredible as he gave evidence on this topic. As to having an idea as to why C.B. had bars on the door, he testified that they argued, and “maybe” she was scared of him like she said in her statement. He was answering as if he did not know and was basing his answer on what he heard her say in court. He believed there were locks on the doors before she got the bars but added that C.B. never locked them. He repeated that he “imagined she was afraid of him because that is what she said”. He testified that he did not know why she was scared of him – they had arguments, but other than that, it never got physical. When asked if arguments were a reason for the bars, he testified that yes, he imagined that arguments themselves would be enough to put bars on doors. His own evidence on his anger reactions involved throwing a coffee pod against a wall (because C.B. did not make a coffee for him) and going into their camper at the campground with and slamming a hatchet as he called it on the counter during an argument because he had enough. A text message exchange filed includes a message he authored where he acknowledges himself as being out of control and needing help. Lastly, the installation of the bars on the doors was done before they broke up, and according to him, he lived there and further he was last at Axmith in July of 2022 a minimum of two occasions, once he stated for dinner/a couple of days, and another to return the quad where he went to the door according to the evidence.

[77] M.C. testified that during the quad incident when D.N. came to her mother’s home, she was there. The bars were on the door, and he was at the door yelling through the crack.

[78] As for C.B. being in control (and theory of “no longer having control” of D.N. in August of 2022), C.B. denied that she ever had control over the relationship at all. She was not trying to make herself out as a victim and was trying to state the facts. She had no influence at all over D.N. She was afraid of him. She agreed she has locked him out of the house. When she told Lyttle, she “kicked him out”, she explained it was a figure of speak and she locked him out in April. She did not agree that every time she told D.N. to leave that he left; he refused to leave. She was not free to come and go as she pleased. She could go places but knew she would have stuff to deal with when she got back home. D.N. would sometimes say you are not doing that. D.N. was jealous of friends, jealous of everything, so she stopped going places and talking to people. The court would hear from B.C. of the number of times C.B. left her own home with the children.

[79] I.G. testified that there were times when C.B. came to her home that she would make I.G. wait outside as she entered her vehicle because C.B. was fearful of D.N. – I.G. would walk C.B. out of her apartment to C.B.’s vehicle. This happened every time C.B. came to her home and I.G. did not do this with any other friends. I.G. never called police or voiced any concerns about C.B. and D.N.’s relationship to authorities. I.G. agreed that she had a strong view on intimate partner violence and let C.B. know this in August of 2022. She agreed that she should have. I accept her explanation as to why she did not. It did not defy logic and/or coincided with other evidence that C.B. never wanted anyone to do that.

[80] It was highlighted that C.B. worked at a woman’s shelter as a crisis support worker, full-time dealing with intimate partner violence victims and their children; they counselled them, got them housing, got them what they needed for counselling. She worked 32 hours a week plus a lot of overtime. She has online one-year course training for addictions and mental health. C.B. candidly agreed that she lied to others to hide the abuse; telling others that her injuries were a result of something else. She agreed she told her manager at Dollarama when she was working there, that she was injured because of a slip and fall. At Maple Gate, she told T.H. that her injuries were because of slipping and falling or that her dog jumped on her. She admits she lied multiple times. She does not consider herself a good liar. In terms of her training and her employment, and understanding what was going on in her home, C.B. stated there were many, at least a dozen times the broke up and she kept taking him back. She explained, she loved him, and was scared of him, both. She would also give evidence at the trial that she was embarrassed also. These explanations made sense, given her employment.

[81] As to hiding abuse and/or distress, C.B. agreed that she was a “good little actress” when it came to hiding abuse. As to it being unusual and her being able to show no distress, C.B. explained that you learn to do that when in an abusive relationship. However, based on the evidence of the other witnesses, while C.B. agreed that she was a “good little actress”, she clearly was not as many of the other witnesses all had their suspicions either immediately or eventually. By way of example, I.G. testified to the measures she observed C.B. to go to, such as wearing long sleeve shirts, heavy make-up and/or wearing sunglasses inside the workplace.

[82] PC Mabley testified that it was not uncommon for someone, a victim to not feel comfortable to come forward and it is his belief that C.B. is a victim. It did not concern him that she worked at a shelter or went to work with injuries and that she may have lied repeatedly. It did not concern him that there was a power imbalance at work, with her boss and circle of denial. It was very different to him, lying as a police officer and a victim trying to cover up bruises on their face. The information from I.G. did not concern him, namely C.B. complaining 2 weeks before or her telling C.B. to charge D.N.; it was very common in lots of his investigations. When they receive initial constable training, they complete a domestic violence training now called intimate partner violence. In this course, he learned that the average abused victim does not come forward until after being abused 44 times.

[83] Defence also highlighted that C.B. testified that she did not know the reason why she was fired from Maple Gate. She started there as a student doing a placement. The placement was three months, and she believes that she worked there for approximately two years to June 2023 which was when she was fired. The case is still in arbitration. She testified that she was not ever given a reason why she was fired. Regarding her former boss at Maple Gate, T.H., C.B. knew she was being called as a witness. C.B. did not move from the fact that she was not given a reason for her dismissal. She denied that she was dismissed for selling drugs and testified she has never sold drugs in her life. There was no evidence that contradicted that. T.H. testified her belief that if C.B. was written up and/or dismissed that C.B. would know. C.B. would have a representative with the union and the outcome could shift during the process. Ultimately the executive director has the final say. It is important to note that T.H. did not have any involvement in any process through which C.B. is going through and what was said by whom to whom. She was no longer employed at the Shelter at the time. As such, while T.H. believes that reasons are always provided, given the foregoing, I do not accept this evidence as negatively impacting C.B. for these reasons nor does it cause me to doubt C.B.’s credibility.

[84] The evidence that many of the witnesses did not see D.N. physically abuse C.B. and/or never had any type of personal issue with D.N.’s behaviour towards them, does not raise a reasonable doubt for me. Many did notice D.N.’s behaviour in terms of name calling towards C.B. and jealousy at the very least. I state this, to indicate that I did not assess them as testifying that he did not have issues that they observed when it came to his relationship with C.B. At the very least, their evidence further presented as that there were ongoing issues based on the various dates of C.B.’s disclosure that oppose a finding of fabrication. They were all candid that D.N. was nice to them, if they had involvement with him.

[85] Defence highlighted that C.B. remembered telling Lyttle she did not want D.N. to get away with anything. She explained this meant that she wanted to report everything. She went to police to specifically report the incidents. The explanation makes sense. She had made up her mind at work that day that she was going to and went there. She did not think about it for a long time. I.G. presented evidence that she was encouraging C.B. to come forward shortly before. As to how she feels about D.N. now, C.B. testified that she does not feel the same. She does not wish any harm on him but does not have the same feelings for him.

[86] As to C.B. telling Lyttle that D.N. had been violent towards her and not the children, she explained she interpreted that as “in front of her children”. She is not sure if they did or not witness violence, expressing that D.N. would not do things when they were there to see. She did not take the context of being asked by about D.N. being violent to his children, as including hers. The explanation makes sense in the context.

[87] C.B. agreed that she did not say anything in her first statement about violence towards her children, and agrees she had the opportunity. At the end of the statement, Lyttle told her that if there was anything else she wanted to report, and there was nothing else she thought of to report at that time when he asked that question, she agrees. I accept her explanation. This was her first-time reporting to police about the abuse. She was told she could come back if she remembered other things. That is what she did.

[88] As to other opportunities, C.B. agreed that she had called police in Christmas of 2016 because of D.N. breaking a window. She agreed she did not tell the police about any other assaults in 2016 at that time. She explained that she did not call to report the breaking of the window, but to ask that D.N. be told that he could not come back to her home. Police saw the window when they got there. Her intention was to keep D.N. away from her home that night because he was repeatedly coming back. She did tell Lyttle that she called police because he broke the window and that he was charged with mischief, but she did not report the window when she actually called back then, she wanted him to stay away from her property. She disagreed that she was back tracking based on that statement. She knows what she called the police for, and she may have worded that wrong or misspoke. Further, she did not expect that D.N. would be charged for mischief for breaking a window on their own property. She agrees that when she reported this conduct, she had opportunity to report allegations she testified happened in 2016, like the ankle injury, the assault with the broom, and the assault with the kitchen chair. She repeated that she called because he was trying to get in the windows. She was scared. She wanted police to tell him not to return to her property. They saw the window when they got there, and she had to tell them after they asked what happened to it. There was other evidence at trial as already satisfying me that C.B. was truly scared of D.N. and was hiding what was happening.

[89] As to text message exchanges, I appreciate the evidence that there were more conversations before and after the text message exchanges filed. I took that to mean other conversations at other times. I accept C.B. explanation that she provided what she thought was pertinent to what she had provided in her statement and was not intentionally “cherry picking” as suggested.

[90] It causes me no concern and I accept C.B.’s explanation that she could not “pick” the worst situation of abuse and that to her it was all equally abuse; that she cannot decide. I did not interpret her response as avoiding the question but a genuine response to the question. She thereafter candidly agreed that not all force was the same and some abuse is worse than others like injuries, and trauma. C.B. thereafter identified that the longest lasting injury from D.N. was the injury to her foot, as to physical injury. The fingers in her vagina would be the worst emotionally. To her there are different ways to measure abuse. She also agreed that the worst would be the incident involving the children.

ACTS COMPLAINED OF:

Count 1: Assault C.B.

General

[91] There were several allegations of assault occurrences made over the course of the relationship, which fall to consideration under this charge in the wide timeframe.

Bailey Incident (His Mother’s Home)

[92] C.B. recounted an incident that happened at the beginning of 2016. It was the first night she had come to Elliot Lake, at D.N.’s mother house located on Bailey. C.B. was going to go to the hospital because she was not feeling well; a female issue she wanted to get checked out. D.N. told her that he would watch the children so she could go. She was living in Spanish at the time. When she got there, he was drinking and drunk. She decided she could not leave the children with him, so she ended up staying at the house. He ended up getting violent with her and abusive, meaning kicking her while she was sitting at the kitchen table, hitting her open handed on the back of her head. This went on sporadically after she arrived. She explained he would get angry, then stop for a bit, then do it again. She went to bed. When she went to bed he was still drinking. When he came up to bed, he came to the room, and he was hitting at her on the bed. As to same stopping, she believes that he just stopped and went downstairs, as to how it stopped. C.B. disagreed that D.N. had “a couple of drinks”, and testified he was clearly intoxicated.

[93] D.N. confirmed C.B.’s evidence that on her first night in Elliot Lake, that she wanted to go to the hospital to check out a female issue/stomach issue going on with her body; that she asked him to watch the kids. He agrees they had a dispute about watching her kids, that she thought he was intoxicated. He was not. He only had two drinks that night. She did not feel he was capable of watching the children. Yet he states that she went to the hospital, and he watched them and there was no assault of physical contact that night. It does not make sense to me that if she thought he was intoxicated, and they argued about it that C.B. just went anyway to the hospital.

Beaumier Incidents

[94] C.B. testified that D.N. hit her over the head with a broom when they lived at Beaumier and broke her glasses. She was not injured. D.N. denies ever hitting C.B. over the head with a broom ever or breaking her glasses.

[95] Also at Beaumier, C.B. testified that D.N. broke a chair; he threw it at her and hit her in the head; threw it on her head. It hurt her, she was not bleeding, but the chair broke. L. was there because he was a baby. It was evening because he had been gone for the day with his friend D.B. to Sudbury. D.N. remembers his friend D.B. He did go to Sudbury with him. It was to go Christmas shopping in December 2016. They only went one time. After he came back from this trip, there was no physical altercation. He denied ever hitting C.B. with a chair over the head.

Hillside Incidents

[96] C.B. testified that when she and D.N. were living together at Hillside, she had woken up early in the morning and could not go back to sleep, so she made a coffee and turned the tv on in the living room. The bedrooms were upstairs. She believes the tv woke D.N. up because he came running down the stairs and said, “just because you are up, everyone else has to be fucken up?”. He punched her in the face, turned the tv off and went back up to bed. D.N. denied that this ever happened.

[97] C.B. also testified that D.N. has thrown several cups of coffee at her, anything that was around him, several ashtrays, and one time her phone which cut her face. When he threw the phone, they were living on Hillside. It cut her near/over top her right eyebrow. She did not take any photographs.

Spragge Serpent River Campground Incident

[98] At Spragge Serpent River Campground, C.B. testified that they were camping in her camper in the summer of 2021. Her friend I.G. and her boyfriend had been kayaking and had stopped by to visit them at the camp. They stayed for dinner. After they left, they were sitting at the fire and D.N. was accusing her of “eying up I.G.’s boyfriend” all day. He was starting to get nasty, so she just went into the camper. He came into the camper and told her that he overheard G.H. and J.H. in their tent saying that she had a boyfriend. He came at her, and she leaned over the bench of the kitchen part of the camper. He punched her in the legs. He pulled a sheet that she had on her, and it left burns under her arms. He went back out to the fire and started yelling things at her from out there. Then he came back in the camper with an axe in his hand. First, he rubbed the axe down the side of her face, and across her neck. Then he slammed the axe on the counter. She ran to the back of the camper where the other door was. That is when he said that if he finds out who her boyfriend is, he will kill them both. She did not have another boyfriend at the time. The camper was a one-bedroom travel camper that was hers. The children were there. They were in the tent beside the trailer. It was dark, it was in the summer, and would have been after 10 p.m.

[99] C.B. testified that she knew what a hatchet is, like a small axe. It was not a small little axe, she knows that. She did not agree with the suggestion that he was by the fire, came into the camper with it and slammed it on the counter and that was it.

[100] D.R. remembered C.B. telling her about this incident which she believed was around August or September of 2021. It was suggested to D.R. that the conversation took place could have taken place in 2022. She could not be 100 percent sure. She was 90 percent sure 2021 was the timeframe. C.B. told her they were out at camp. D.R. was not sure what the argument was about but that C.B. told her that D.N. put an axe to her throat and said he was going to kill her. D.R. did not ever witness any violence or threats herself between D.N. and C.B.

[101] D.N. remembers the camping trip and it was the summer of 2021. He testified that the trailer belonged to both of them and that they had bought it together. His version of events is that when he was sitting by the fire chopping wood, C.B. was throwing the sexual interference in his face and yelling from in the camper. This came up because they were having an argument about telling the children to go to bed early and then she went in the camper. She did not like the way he told the children to go to bed or how he was disciplining the children. He said in response, “whatever, I wont discipline them then” and then she brought up the sexual interference. To him there was a logical connection between the two subjects. It did not make sense to me or present as logical that C.B. would jump from arguing about him disciplining the children to a sexual interference offence. He was chopping wood with a hatchet. He testified that an axe was a long handle with blade on the end and the hatchet has a short handle. He testified that after he finished chopping the wood that he went into the camper and said, “enough is enough with you throwing this in my face” and that he slammed the hatchet on the counter, then went back outside and sat by the fire. He thought the hatchet would “clue it in to her” to stop throwing it in her face but testified that he was not intending to threaten her or intimidate her in any way. I do not believe him. His own explanation included words of intimidation – he “thought she would clue in”. He knowingly brought the instrument into the camper with a purpose. He testified that he when he went back outside the hatchet went with him and he put it by the fire. This was another instance that D.N. presented as downplaying his anger, the arguments, and or his behaviour/reactions and their characterization.

[102] A text message exchange filed includes a reference by C.B. to being threatened with an axe by D.N. and threats to kill her, in a list of multiple things she wrote that he had done, and that there was also a text message exchange involving the camper. Regarding the camper, in the message, D.N. does not claim that he is an owner of the camper. He went on about wanting the keys because he was checking on it. He does not say he should have the keys because he was an owner. There was no request from him, in all the requests he said were made of wanting his personal things back from C.B. that mentioned the camper. He further does not deny the list of behaviours C.B. wrote about. He claimed he did not respond because it was nonsense. I do not believe D.N. The fact of the matter is that he did respond because she drew his attention back to that fact. In his reply he states that he knew he was getting out of control, and he needed help and would change everything for her.

Axmith Incidents

[103] C.B. testified that D.N. threw a lighter at her in the summer of 2021. Photographs were tendered. There were two photographs testified by C.B. to have been taken July 2, 2021, at 7:50 a.m. She took them at her home testifying the ceiling and kitchen in the picture is that of her Axmith home. She took the photos as evidence that he hurt her again. She was able to take them because he had left the house. He had thrown a lighter at her which hit her and bruised her lip. The lip had cut also and was bleeding on the inside. The photos were taken at the same time, the next morning after. These photographs depict C.B. objectively with a fat lip, lower right-side lip. There is obvious bruising and swelling. The injury would be observable to third parties objectively. She was working at the shelter during that time frame. Other witnesses testified to seeing bruising on C.B. D.N. denies responsibility for the injury. He had no idea how she got this injury or why she was taking the photograph. He does not recall if they were on a break but at that time, he does not think they were together. It was not suggested to C.B. that they were not together during that time frame by defence, only a slip and fall, and the lies she told others about her dog. D.N.’s version of the slip and fall involved C.B. hurting her head or side of face. The only injury in the picture is the lip.

[104] There was also an incident at Axmith before their separation that started with D.N. throwing a coffee pod at C.B. and included instances of him throwing water at her and punching her with his hands in the ribs and side of her leg. The incident also involved a lamp and steak knife, and the particulars are set out in other areas of this decision because of overlap, and I will not repeat them hear.

Other Evidence

[105] M.C. testified that she has also seen her mother with black eyes, cuts on her face, lips, arms, and a slash on her ear. She does not remember the dates. They were all before the incident of July 31, 2022.

[106] As to D.N.’s denials of ever hitting C.B., G.H. remembered talking to PC Brisson about D.N. getting physical with her mother. G.H. had gone downstairs to get a snack. As to what she observed happening to her mother, she had difficulty speaking about the subject; it was hard for her. She indicated that she remembered that there were lots of things. She did see an incident when she went to get a snack downstairs. She testified she did not want to get involved so she went upstairs. She wanted to get a snack, saw that, and just went back upstairs as she did not want to get involved. On this occasion, she explained that she saw D.N. hit her mother in the head. She does not remember what D.N. was saying to her mother or what her mother was saying to D.N. D.N. was hitting her mother – in the head and stuff – she does not remember most of it. She does not know when this occurred in relation to occurrence when she saw J.H. get hit, whether it was before or after. She does know that they were living at the same house they are living at right now (Axmith). While this incident is not connected specifically by C.B. to any of the acts complained of that C.B. was able to provide details on, G.H.’s evidence contradicts D.N.’s evidence that he never hit C.B. G.H. was compelling.

[107] G.H. agreed that there were lots of arguments in the home wherever they lived. There was yelling. There was name calling. She does not know about whether her mother also called D.N. names, but she heard her yell but does not remember what. She heard her mother get angry with D.N. for yelling at her, but that is all she really heard. She agreed she was not really trying to pay attention to this, she did not want to get involved. If they were having an argument in a room of the house, she would not go in. If she was in the room, she would leave and go somewhere else in the house. She did not want to see or hear anything that involved the two of them.

[108] With respect to the incident regarding seeing her mother get hit in the head by D.N., she agreed that she did not see the full event and did not see everything that went on. To the suggestion that she would have called the police if she saw something bad happening to her mother, to protect her, she responded that she did not want to get into trouble. She agreed she loves her mother, wanted to protect her mother, knows police will protect people (from a young age), knows police are good guys that protect and help people, knew from a young age about 911 and stranger danger - some of the basic stuff, and if she saw someone hurting to go for help to the police, neighbour or aunt or all of that. She agreed she did not do any of that, and that she did not do so because she is not truly sure what she saw. She agreed that if she had seen something bad happen to her mother, she would have told a teacher or someone the next day. On re-examination G.H. testified that she has never called 911 before. She did not have her own phone at the time of the incident she saw D.N. hit her mother in the head. She had a tablet. She did not tell a teacher or anyone because she did not want to get into trouble. She thought it was going to be a big deal and it is a big deal. She also thought people would think she was lying. She was scared someone would think she was lying. G.H. confirmed that she saw D.N. hit her mother on the head the time she went down to get a snack. She did not see the full incident, but she saw that.

[109] T.H. worked with C.B. at Maple Gate. She trained C.B. She described C.B. as standoffish. During the time she worked with C.B., T.H. did observe marks on C.B.’s cheek and eye area. She approached C.B. C.B. explained that she had tripped; fallen over her dog. The injuries she observed was very similar to those described by C.B. as having been inflicted by D.N. as well as the time frame, namely March/April of 2022, the incident that started with the throwing of the coffee pod.

[110] During the time she worked with C.B. T.H. testified that she also observed bruising that she described C.B. as trying to cover. T.H. described that that this included C.B. pulling a sleeve down when she saw them on her arm. T.H. also testified that she had to address with C.B. several times C.B. not wearing the appropriate work attire and getting written up. She observed C.B. to be wearing additional items of clothing beyond the logo golf shirt she was to wear. C.B. was wearing long sleeved shirts underneath despite the weather. She observed that C.B. was heavily made-up, “caked on” and thick to cover the skin. She observed C.B. to wear sunglasses at work inside. This was before the observations she made concerning C.B.’s eye. She did not consistently write C.B. up after C.B. had disclosed to her abuse. T.H. explained that while it is not the program’s choice not to report to police, it is the woman’s choice. T.H. agreed she had expressed some views that it presents that the system helps the abuser more than one knows. T.H. denied however that she was a feminist and stated she is a humanist. She feels this way about both men and women. She does believe that if a woman denies being abused that is denial. It is still her truth until the woman decides to disclose. I accept her explanation as reasonable in the context.

[111] B.C. did not personally see D.N. being violent towards C.B. but testified that he did see C.B. with injuries. Of the times that B.C. saw injuries on C.B., he was able to remember some details regarding three occasions. One of the incidents was the foot incident and one was the incident that caused the final separation in April of 2022 that started with the throwing of the coffee pod, both dealt with separately herein. The third B.C. described was that C.B. showed up to his home with a scratch on her face and the same thing occurred, namely him asking what happened, and he gets no information. He cannot provide a date for the occasion. The circumstances were like the time she showed up with the three children, not telling him what is going on but needing somewhere to stay. B.C. testified that there were approximately 5 to 6 other times, but again he does not know what happened. It presented to him as an altercation happened. Sometimes C.B. stayed a night or two, sometimes up to a week on these occasions. B.C. testified that he has tried to have lots of conversations with his mother in the past but because he has a bit of a temper, and she does not like to tell him what is going on; he had been kept out of the loop on a lot of what happened. He agreed that he was not a person of small stature. He agreed that D.N.’s stature was like how he presented in court at trial. B.C. testified that what was going on was very upsetting to him. He did not ever call the police because he did not know enough and could not get information out of his mother. He also did not think it was his place to go to the police not knowing what was going one; things he was hearing was from other family members; and things were kept from him. Common sense considering the whole of the evidence, tells me that C.B. leaving her own residence this many times with her children, sometimes having observable injuries, does not contradict C.B. that physical altercations/disputes with or involving D.N. had occurred, causing her to do so. If they did not involve or were not related to D.N., it would not make sense for her to leave her own home to go to B.C.’s residence looking for accommodation for herself and the children. It would not make sense that she would leave her home with the children and go there because she had a slip and fall in a plaza parking lot, or her dog jumped on her, or because she hit her head on a shelf at Dollarama.

[112] D.R. described a time she observed C.B. at her restaurant with what she described as a handprint on her face. It was very noticeable. She testified that C.B. told her that D.N. storm in the bathroom that day and slapped her across the face. C.B. was working for her then. C.B. was late to work that day.

[113] C.B. does not remember every time D.N. has hurt her over the years. There have been many times.

Finding

[114] I believe C.B. on the whole of the evidence that D.N. assaulted C.B. multiple times during their relationship. There is no doubt in my mind on the whole of the evidence.

Count 2: Choke C.B.

[115] C.B. testifies that she was choked several times by D.N. at all the residences they resided at during their relationship. She could not begin to estimate and testified, 20 times at least. She did not ever lose consciousness. The context for each was that they were arguing and fighting – verbal fighting.

[116] A text message exchange between C.B. and D.N. was filed in which C.B. includes in a list of alleged abuse, that D.N. choked her. This was sent by her well before C.B. decided to report to police, and well before D.N. was involved with his new girlfriend in August of 2022. While he does not outright acknowledge the list, he does reply that he was getting out of control, needed help and would change everything for her.

[117] Recognizing that none of the witnesses except for G.H. and maybe J.H., ever saw D.N. physically assault C.B. and D.N. admits that he only ever verbally abused C.B., I.G. testified that she saw C.B. numerous times with bruised arms, and a bruised cheek. She questioned C.B. several times. C.B. told her it was either the dog or she fell. At first, she believed C.B.’s explanations but more injuries started to show up, like hand marks around C.B.’s neck one time. She testified that it was at this point, she began to think that something was not right. She also remembers observing C.B. with a black eye and believes it was the summer of 2021. The neck marks were observed the same summer. The bruising was in the shape of fingers. When she observed the bruises on C.B.’s arm, it was her upper arm and C.B. told her that the dog had knocked her over. C.B. did have a dog at the time.

[118] On the whole of the evidence, I am satisfied that during the time frame that D.N. choked C.B. at least on one occasion, and the essential elements of the offence are established beyond a reasonable doubt.

Counts 3 and 4: Assault with a Weapon: Lamp and Steak Knife

[119] In this case, the court heard incidents that C.B. described wherein D.N. she alleges hit her with a lamp and held a steak knife to her and cut her ear on a day that started out with him throwing a coffee pod at her. There is no question that a steak knife and a lamp can fall within the definition of a weapon under the Code. There is no issue that if C.B. was believed, the actions constitute assault with a weapon and the elements of the offence are established beyond a reasonable doubt. The issue is that D.N. denies that he ever hit C.B. with a lamp or held a steak knife to her.

[120] In April of 2022, C.B. described an incident that occurred that caused the final separation. She testified that she came home from a night shift, she sat on the couch inside their home on Axmith. D.N. heard her home. He came down and was mad at her that she did not start coffee for him. He took the coffee pod out of the Keurig and threw it at her, and it hit her on the left side of her face and left a bruise at the side of her face. This incident started at 7 a.m. with the Keurig coffee pod and carried on, on and off until the children came home from school that day. She described it as on and off, he was sitting down in the kitchen then would get up and come over to her. This repeated; meaning he kept getting himself worked up and was getting up and down. During this incident he also threw a glass of water at her in her face (the contents of the glass). During one of the times, he came at her she leaned over the couch. He punched her in her ribs and side of her legs. He also took a lamp that was on the end table beside her and hit her on the left side of her eye. She was injured. It cut her left eye, the outside of her left eye. She did not go for medical attention. It drew blood. She just put a wet paper towel on it and stayed there. He was yelling and sitting at the kitchen table. During this time, he also held her down until she had an anxiety attack – meaning he would sit on her and then let her back up when he knew she was having an anxiety attack, and repeat. She explained she has an anxiety disorder. When she was sitting on the couch, he was faced towards her with one knee on her leg holding her down with his elbow on her chest. This happened a few times during this incident. She wanted to get up off the couch when he did this. He was not letting her and not telling her why. Then the children came home. When the children came home, she told them to get in the truck and that they were leaving. She went to get a package of cigarettes from cupboard, at which time he stopped her against the counter and told her she was not leaving, he wanted to talk it out and she did not have to leave. There was a steak knife on the counter, and he picked up the steak knife and put it up to her throat and cut her ear with it; this occurred in the kitchen; the children were outside when this happened. After this, she grabbed her keys and left, and she and kids went to her son B.C.’s house, it was a two-minute drive away. Her intention was to get away from that situation. As to what she and D.N. were arguing about or he was angry about, C.B. testified that at the end of their relationship, he was always arguing with her about her friend D.R.’s husband. They owned a restaurant. She worked for them. D.R. was her friend and P. was the name of D.R.’s husband. D.N. was always accusing her of sleeping with him, meaning he thought she was cheating on him with P. She was not.

[121] It was suggested to C.B. that D.N. came down, she had not started his coffee, and he took the coffee pod and threw/tossed it at a wall opposite of her to show his displeasure for her not considering him and that was it. She did not agree. It was suggested that they started arguing and she brought up his sexual interference offence that he was convicted of during their relationship (like always – suggesting she brought up all the time him cheating on her) and then he left. She did not agree.

[122] D.N. testified that he remembers an incident with a coffee pod. They usually make coffee for each other. He was angry, “a little bit”, she had not made him a coffee and he threw the pod across the room and said, “thanks for making my coffee”. He agrees he put on a display. The pod did not come close to her. It hit the other side of the wall.

[123] The evidence of B.C. coincided with C.B.’s evidence. B.C. testified that approximately March or April of 2022 C.B. showed up to his home with a black eye and a cut on her ear. He recalls that C.B. had driven to his place that evening with the three youngest children. She would not tell him exactly what happened. He tried to convince her to tell him and to take photographs because of what he had heard from family in the past. The eye was blackened on the left side and the cut was on the right ear from what he can recall. He cannot recall if C.B. ever took any photographs. In terms of other particulars of that occasion, he recalled that C.B. had worked that night; she came approximately at dinner time; she had not yet slept from the previous night shift, so B.C. watched the kids that night and let her sleep a bit. C.B. then went into work. He thinks she was working 6-6 but he is not sure. She was working at the woman’s shelter at the time. The three children slept the night at his place. His mother was living on Axmith at the time.

[124] Photographs were tendered of C.B. taken on two separate dates. One photograph is taken 6:32 p.m. April 14, 2022 (year not indicated on face of document but testified to by C.B.). This photograph depicts C.B. with injuries to her left eye. There is obvious bruising and scabbing just under the left eyebrow on the outer side. C.B. testified that this depicted the injury she sustained after D.N. hit her with the lamp and pod. She took the photograph in her son’s basement. The background is her son’s basement. She took the photo as proof that he had injured her. The photo was taken the same day or the next day. C.B. testified that the photo accurately depicts the injury she sustained. B.C.’s evidence coincides C.B.’s evidence of the injuries she described she sustained to her face and ear in March/April of 2022.

[125] D.R. testified that she saw the mark on C.B. and was told that D.N. threw a K-cup at her.

[126] Again, D.N. testified that he was angry “a little bit” that he threw the pod across the room. I found this evidence to be one of many instances that D.N. presented as downplaying his anger, the arguments, and or his behaviour/reactions. In a text message between C.B. and D.N. during their relationship, in his own words he acknowledged that he could get out of control. He painted a picture of himself that he only ever verbally abused C.B. and either left the house or went to another part of the house or outside to stop arguments and allow for cool down, suggesting most times that it was C.B. throwing the sexual interference in his face. In this instance, C.B. was clearly sitting on the couch having a coffee and D.N. started with her.

[127] On the whole of the evidence, I am satisfied that the Crown has proven all the essential elements of these offences beyond a reasonable doubt, namely, counts three and four; that D.N. assaulted C.B., and the assault involved weapons, namely the steak knife and lamp without her consent and he knew that.

Count 6: Section 268 – Aggravated Assault - C.B.

[128] The Crown recognizes that the offence as originally charged is not made out and invites the court to convict on the lesser included offence of assault causing bodily harm under section 267(b) – Assault Causing Bodily Harm.

[129] This charge is based on what I will call the ankle incident. There is no issue that C.B. was hurt during the event in question and suffered an ankle injury, one that caused pain and inability to weight bear, so much so that D.N. called 911 for assistance, which prompted the paramedics to attend. With this event, D.N. denies being the cause of the event. D.N. states that C.B. tripped on their return home from their evening out – there was no physical contact involving him. The issue is whether he caused the event.

[130] C.B. testified that this event occurred in the summer of 2016. At the time, she and D.N. were living with her son, B.C., and his family on Hillside. She and D.N. had rented a house but it was not ready for them yet (it was on Beaumier and they moved into it in the Fall of 2016). They had gone out that evening to Jack Leggers Bar. They had walked there, just she and D.N. At the bar, there were words said between her and a man she did not know about her playing pool. D.N. accused her of flirting with the man. On the way back to her son’s home, D.N. was mad about it. They were walking back. It was after the bar closed. She believes it was 1 or 2 a.m. He pushed her on her chest, and she fell to the ground. When they arrived back to her son’s they went downstairs. They were sleeping on a blow-up mattress downstairs. She got into bed. He was still yelling at her about the guy at the bar. He grabbed her by the throat. She kicked him away from her. He said, “you want to kick me bitch”, and grabbed her foot and twisted it and it cracked. She screamed. He then let go of her. He called 9-1-1. E.M.S. attended. E.M.S. checked her foot. They told her that she should “definitely go” and have it looked after. She refused to go with them. D.N. told her that she should tell them that she tripped on the trail on the way home. She did not want to be in that mess and go, explaining, she did not want to lie or deal with any of it. She did tell E.M.S. what D.N. told her to tell them. She told E.M.S. that she tripped on a stick on the way home. She was too scared to say anything. She was too afraid to tell them what he “actually did” and of him. She never did go to the hospital. She could not walk on it for several weeks. She had to use a rolling chair in her son’s home to get around the room. She went up and down the stairs on her butt.

[131] C.B. was asked if she told Lyttle that D.N. broke her leg. She denied this more than once and did not move from this. It would surprise her because if he recorded this as it was always her foot and never said he broke her leg. She knows officers take notes.

[132] C.B. agreed that after the end of their evening they walked back to her son’s residence along a trial in a wooded area, it was not lit, and it was dark. They were walking side by side. She agreed the ground was uneven; “sticks stick up”. She disagreed that she “fell” on that trail. She disagreed with the suggestion that it was because there was uneven ground, it was dark, she had a few drinks that she falls and that D.N. helped her back to the house. She agreed that D.N. calling 9-1-1was over her objections.

[133] C.B. agreed that the 9-1-1 call depicts D.N. telling them that his girlfriend tumbled over on a trail and that he thought she broke her foot. He is asking them to come to check her out. Her voice can be heard in the background, and she is saying she is not going to go; that she was good. D.N. provides the address and telephone number. D.N. described that they were walking through the trail after the bar, and C.B. tripped over a “ditch”, where it is uneven coming down on the trail, she tumbled over on the trail coming home from the bar, over her ankle, said she was in pain and he brought her to the house and she did not want to go so he called them to see if they could come check it out. He tells the operator that she cannot move her toes or put weight on her foot.

[134] C.B. did not know what D.N.’s intention was in terms of bringing her to the hospital himself, that he wanted to. They had no way to go to the hospital. She agreed the primary difficulty was that she did not want to go to the hospital; she did not want the ambulance personnel to come. When they came, besides being in pain, she was not distressed. She disagreed that 9-1-1 was called within five minutes of getting home. It was after he had twisted her foot that they were called. It was possible it was 10 to 15 minutes after they got home. She does not recall the time they left the bar or if they stayed for last call. He called 9-1-1 right beside her. She agrees the ambulance came shortly thereafter. She does not remember if D.N. left the house to flag them down. She does not recall the time it was.

[135] D.N. denies that there was any pool playing at the bar that night and it was a good night in the bar.

[136] E.W. is a paramedic. He completed a one-year program. He has been a paramedic for 16.5 years. On August 27, 2016, he was working with G.M. On refreshing his memory with his report, he testified that he received a call at approximately 2:55 a.m. related to a woman complaining of ankle pain. It was suggested by defence to C.B. that she and D.N. left the bar at 1:45 a.m. D.N. testified that last call was 1 or 1:30 a.m.; they were allowed to stay to finish their drink, then they left. D.N. testified that they decided to take the trail because it was a short cut home.

[137] E.W. attended the residence with his partner. On arrival, he noted that the patient did not want to see them. The patient was C.B. He understood the call was generated by her spouse, D.N. The patient presented to him as claiming that she “rolled her ankle on a log” walking home. I note that this did not match the description given by D.N. to the 9-1-1 operator. C.B. was in bed when they arrived. As to state of sobriety, C.B. presented as “fine”, “lucid” and did not present as having any impairment from drugs and/or alcohol. E.W. cannot recall any conversation with D.N. His conversation was with C.B. He observed no obvious deformity or swelling in the area of the ankle. C.B. declined, after being asked, to go to the hospital. C.B.’s complaints were pain and discomfort from rolling her ankle. He and G.M. got a refusal signature; they were there 20 minutes.

[138] When shown the report, E.W. identified that the notation the “patient does not present in any distress” was written by his partner and he would agree with that. If he had not asked about her ankle being sore, he would not know. There was nothing in her presentation that would have been inconsistent with the complaint of rolling her ankle. Of note, is that C.B. was already lying down. She was not complaining about it when they arrived as she testified. This is consistent with her evidence of not wanting to involve anyone and not showing her distress. Of note, while defence was highlighting C.B.’s alleged description of the injury to Lyttle as being broken, clearly it is very reasonable to conclude that it was serious enough in D.N.’s mind that he called an ambulance shortly before 2:55 a.m. D.N. reported to 9-1-1 that C.B. was complaining of pain and could not weight bear or move her toes. Further, the paramedic is not a doctor. It was never x-rayed. C.B. was not cooperative for reasons she explained, and it took some time for the injury to heal.

[139] As to whether C.B. told Lyttle he broke her leg, Sgt. Gordon left before Lyttle the day she assisted in seizing the guns. He stood back on the porch as was still talking to C.B. when she left. She did not hear C.B. speak about a broken leg to Lyttle. There was an agreed statement of fact that C.B. reported a broken leg. It was not clear to me as a result of this continued questioning if that was something different or if that was in relation to the ankle incident. In any event, it is clear there was an ankle incident at the end of the day. D.N. remembers one and so does B.C.; and C.B. suffered an injury.

[140] B.C. testified that one morning he got up, a morning after D.N. and C.B. had been out the night before. His mother had an injury to her leg. D.N. told him C.B. tripped on the trail and that is how she hurt her leg. He did not ask his mother because he assumed that this is what happened. He cannot really remember much as it was so long ago, but he believes it was an ankle injury, but he does not want to guess. D.N. and C.B. were living with him at his home at the time. D.N. and C.B. were staying in the basement of his townhouse on an air mattress. B.C. did not get C.B. medical attention. He was told that an ambulance was called the night before and looked at it. He did not wake up. C.B.’s evidence was that her son did not even wake up when the ambulance came, and he was sleeping on the couch upstairs.

[141] D.N. was not consistent with his evidence. He testified the trail was dark; they were walking side by side, he heard her say “owe” and looked down and saw her on the ground, her shadow figure. Moonlight was shining a bit but not much. It was a wooded area. First D.N. testified that there was no discussion as to why she fell. He thought she tripped on a “stump, roots” because it was uneven ground they were walking through. I noted he told 9-1-1 there was a ditch involved. D.N. changed his evidence when asked how he would know that she tripped, namely, to say that was the cause, he testified that she told him that she tripped over the stump and twisted her ankle and changed his evidence to there was a discussion. He said he helped her up. He said it took 20 minutes to half an hour to get back. He testified he could not call for help or a cab as they had no phones at the time. He called 9-1-1 once they got back to her son’s place. The ambulance came five to ten minutes after his call to 9-1-1. He testified he called because he did not like seeing her in pain. He denied hurting C.B. The only dispute they had was her not wanting to go to the hospital.

[142] PC Mabley heard about paramedics responding to the incident. Jack Leggers was gone before he arrived in the area and was not familiar with the establishment. He is familiar with the Swiss Chalet (said to have taken the spot). He agreed on the other side there are trails through the bush. He would agree that if someone fell on “a log” on the trail in the bush leading from Swiss Chalet to Hillside, that is believable; similarly, it was late at night especially if they had drinks at the establishment, and that it does not sound phony. He however has never taken the trail so he would not know personally. The paramedic described C.B. as lucid.

[143] I do not believe D.N. It makes sense that C.B. did not want to go to the hospital because she did not want to disclose what happened to her as she stated, she hid abuse from others. I do not believe that D.N. called 9-1-1 because he did not like seeing C.B. in pain. I suspect he realized he hurt her seriously and wanted to control the narrative – he wanted her to lie and fabricated the story to cover tracks.

[144] I am satisfied beyond a reasonable doubt on the whole of the evidence that the lesser included offence elements are met.

Count 7: Section 264.1(1)(a) - Utter Death Threat to C.B.

[145] There were at least three specific incidents testified to at trial that are dealt with in more detail within this decision and I will not repeat all the evidence during which threats were alleged to have been made. Reference can be made to those paragraphs for the incidents for the balance of the circumstances/evidence considered.

[146] I do not believe D.N. that he has never threatened C.B., including threatening to kill her.

[147] During the incident following the December 18, 2021, Christmas birthday party C.B. and D.N. attended, C.B. testified that D.N. threatened to kill her. See the sexual assault count.

[148] During the incident at the camper at the Spragge Serpent River Campground, C.B. testified that D.N. threatened to kill her. See the assault count.

[149] A text exchange filed between D.N. and C.B. included C.B. listing threatening her with an axe and to kill her in the list of behaviours of abuse she was alleging D.N. with. His response did not include a denial, but when confronted that he did not respond, he did reply, while not outright acknowledging the list he wrote that he was getting out of control and that he needed help and would change everything for her.

[150] D.R. was not sure what the argument was about but remembered that C.B. told her that D.N. put an axe to her throat and said he was going to kill her.

[151] C.B. testified that D.N. threatened her all the time that if she called police and he went to jail, he would get out, find her, and kill her.

[152] C.B. put bars on her doors at her home.

[153] C.B. had I.G. walk her to her vehicle.

[154] C.B. left her own home several times to get away from D.N.

[155] During the quad incident, M.C. testified that she heard D.N. threatening to burn the house down. M.C. personally observed text messages to C.B. from D.N. thereafter accusing C.B. of being a rat (for calling police when it really had been M.C.) and that C.B. was “going to get it now”. While M.C. did not witness any physical violence, she observed verbal abuse and threats, both hearing them personally and reading them on her mother’s phone. M.C. was not moved on her evidence that the context of most arguments between her mother and D.N. were related to D.N.’s jealousy issues. M.C. testified that she expressed concern to her mother. She expressed that she was scared that D.N. would kill her one day and told her all the time to leave D.N. She was privy to and aware of the several break-ups and reconciliations. In June of 2021, M.C. called police to see what M.C.’s options were if her mother did not want to cooperate to get D.N. away form the family because her mother did not want to talk to anyone at the time. M.C. felt she did not have a lot of options.

[156] On the whole of the evidence, I believe C.B. (and M.C.) and am satisfied beyond a reasonable doubt that D.N. knowingly uttered threats to cause death to C.B.

[157] C.B. was afraid of D.N. and feared for her life during the time frame of their relationship. Others also feared for her.

Count 10: Section 279(2) – Forcible Confinement - C.B.

[158] C.B. described that she was physically confined (pinned) by D.N. during the incident involving J.H., that he would not let her leave the home. Pinning someone is unquestionably confinement that he had no lawful authority to do and so is trying to stop her from leaving. The pinning incident caused her to ask her young son to seek police assistance which ended up with J.H. on the floor of the kitchen. After the incident, C.B. wanted to and attempted to leave and D.N. would not let her. She went outside where she had sent the children, and walked with them to her friends’ restaurant because he would not let her have the keys and took her keys to the vehicle to stop her from leaving.

[159] D.N.’s evidence on how and why and what he knew about C.B. leaving the house lacked credibility. D.N. on cross-examination testified that C.B.’s keys were hanging up and she could have taken them. He could not remember when C.B. left that day. D.N. testified that this made sense to him that she walked if she walked. This evidence presented as incredible, and it certainly did not make sense in these circumstances in my view. It was December and she had two young children with her. The court would hear from D.R. that when C.B. arrived at her home that C.B. was in her slippers.

[160] On cross-examination when asked again, D.N. testified that he could not recall if C.B. left with the kids but agreed that she could have. His evidence presented as an attempt to distance himself from the allegation that he would not let her leave that day. This was not an everyday event, in my view, from the perspective that J.H. was involved in the mix and never had been before. He then testified again that he did not know if she left or not and she could have stayed. He does not recall her leaving offering that she left all the time to go to the store, shopping, get groceries.

[161] The text message exchange filed between C.B. and D.N. just after the incident suggests that he knew she left, as in his own words, he wrote that she did not have to leave to which she responded that she could not stay where she and her children were being hurt. In this exchange he states his feelings about what he had done to her and especially J.H. He knew she had left.

[162] D.R.’s evidence coincides with C.B.’s evidence, namely, that C.B. to get away had to walk to their restaurant with the children, that D.R.’s husband P. was there, that P. called D.R. telling her that C.B. was down at the restaurant and was quite upset. C.B. and the children came to D.R.’s home. D.R. observed C.B. was in her slippers and quite frantic. She had never seen C.B. like that before. She was upset, meaning crying, very emotional, and very anxious. She observed that G.H. was quiet and J.H. was not wanting to go home; he was emotional. It is of no concern to me as to D.R.’s memory on how C.B. got there, whether P. drove them or C.B. borrowed the car. That is a peripheral issue in my view and easily explainable by the passage of time.

[163] The court also received evidence of C.B. related to the incident the occurred just before they separated which started with D.N. throwing a coffee pod. During that occurrence, there were instances of D.N. forcibly holding C.B. down repeatedly, only releasing her when she had an anxiety attack. He would not let her go and she did not know why. Further details of this incident have been set out and I will not repeat them. I do not believe D.N. that this did not occur as stated above.

[164] I believe C.B. and on the whole of the evidence, I am satisfied beyond a reasonable doubt that the essential elements of this offence are established on the whole of the evidence that he forcibly confined C.B. on these occasions.

[165] Again, because of overlap, other facts I considered regarding the circumstances of these incidents are set out in those offences.

Count 11: Section 348(1)(b) – Break and Enter

[166] The Crown recognizes that the offence as originally charged is not made out and invites the court to convict on the offence of mischief under section 430(4) – Mischief in Relation to Property.

[167] As to whether he wilfully obstructed, interrupted or interfered with C.B.’s lawful use, enjoyment, or operation of property, I am satisfied on the whole of the evidence that the essential elements of the offence of mischief in relation to property are established.

[168] In this case, there was evidence given that D.N. forced his way in C.B.’s home on one occasion approximately a year before the separation breaking the door frame; he kicked his way in. C.B. testified that it was a problem throughout the relationship that D.N. would refuse to leave the residence when she aske him to and she had to wait until he left to lock the doors. This caused C.B. to put bars on the doors of the home. There was also evidence that he took C.B.’s quad and was refusing to return it back to her. D.N. classified this residence as C.B.’s residence.

[169] D.N.’s evidence regarding the bars on the doors was not credible. Because of overlap, that issue and those considerations are in this decision already. I will not repeat them here. They apply.

[170] As to the quad incident and suggestion C.B. was not returning D.N.’s personal belongings, C.B. testified that she asked D.N. on many times to come and get his personal things. She did not want him coming to her home. She offered to pack them up or otherwise, he could have someone else come pick them up. She had to call the police about the quad. While D.N. returned the quad, she had to initiate the return. When she got the quad back, she agreed that he did not have his personal things, stating he refused to send someone to pick same up. He brought the quad. As to when he left, he put the helmet on, took a bicycle and rode away. They did not have any words. D.N. was threatening to sell her quad and refusing to bring it back which is why Lyttle was involved. She spoke to a friend who spoke to Lyttle. She did not want D.N. charged, she wanted it returned, everything be peaceful and done. She agreed that D.N. suggested a police escort to get his things, but he never followed through. It was not the situation that she said she did not want that and never a situation that she said to him that he brought the police over that she would have him charged.

[171] D.N. testified that he believed that C.B. called the police to get the quad back. Lyttle came to his brother’s house to talk to him about it. After they talked, he returned the quad to C.B. He agrees he was knocking on the door July 31, 2022, wanting his stuff back. He did not get any of his stuff. His understanding was that if he returned the quad, he was able to get his stuff back. He testified that he texted her many times for his stuff and that he was moving on and that she ignored him. He was using his brother’s phone. His explanation was difficult to accept for not having these text messages. He explained he was in jail and had no phone. Further, on cross-examination he testified that he had a phone that he got from his mother’s house, that his mother was not using. Yet contrary to this evidence, in his statement to PC Mabley, D.N. tells the officer that he received a text from C.B. stating that she was glad that he was moving on and that she wanted to sort out all their stuff without any issues, but he did not text her back.

[172] It was near the end of August that D.N. told C.B. that he was moving on. The woman lived in South Hampton, not Elliot Lake. This new girl came to visit August 21, 2022, and stayed at his moms for a few days and then they went camping and did boyfriend and girlfriend stuff. He went around town with her. D.N. gave very odd evidence about C.B. knowing about her. He testified at this time that he “believed she knew about it”. This coincides with C.B.’s evidence that she did know specifically but knew he moved on.

[173] On July 31, 2022, M.C. recalled D.N. attending C.B.’s residence. On this occasion, she heard D.N. yell that he was going to burn the house down. She remembers the day because she still has it all on her phone plus she remembers it. She was there. She was talking to her mother when he yelled this. She was there when it took place. They were in the living room. D.N. drove up into the driveway. She explained that when you open the door to her mother’s home because there were bars on it, there is a crack that you can yell through. D.N. was yelling through the crack. He was saying he was going to burn the house down, banging the door and calling C.B. a “bitch”. M.C. then went upstairs. M.C. was on the phone calling 9-1-1 when this happened. Four police cars showed up. The incident resolved as when police showed up D.N. was already gone, and they could not find him. Her mother did not really want to press charges and police left. There were no charges that she is aware of that arose from the incident. M.C. testified that she also personally saw text messages that D.N. had sent to C.B. after the incident regarding the incident. She saw messages from him calling her mother a “rat” because he did not know that it was in fact M.C. who had called police and he wrote that her mother “was going to get it now”. In the home that night was herself, her mother and the three youngest children. She was there because her mother was not comfortable being alone at that time, so she went to stay with her. She stayed 3 to 4 nights, some alone and some with her boyfriend A.M. They stayed to let her mom get some sleep. She and her A.M. stayed in the living room.

[174] M.C. further testified that she saw D.N. through the window on this date. He had arrived on the quad. The quad was left there as far as she knows. She did not hear D.N. knocking on the door asking for the return of his things. She could hear yelling and could not make out all that was being said when she was on the phone to police upstairs. Since she was upstairs, she agreed that he could have been yelling for his things and that she may not have heard everything.

[175] G.H. testified that when she described something “scary” on the video statement to PC Brisson that she did not remember. She remembered a little bit about talking about the quad to the officer. She then remembered talking about it; she remembers saying what she said on the statement but does not know what she was trying to say but remembers that her mother called either D.N. or D.N.’s friend and the friend went to where D.N. was staying and talked to D.N. and a few days later the quad was given back. She remembered saying that this made her mad and that part was scary. She agreed that it was important to her mother to get the quad back and that she did get it back. She agreed it was around summertime and it was possible that it may have been around July. She does not know but thinks it could have been a couple of months before her video statement to police. She agreed that her mother got it back with the help of someone. She does not remember if it was a police officer but remembers someone else bring over the quad. She remembers her mother calling a police officer friend and that her mother got the quad back after. She remembered that D.N. and her mother had been back together for a few days or two related to the timing of the quad incident. She remembers they had an argument and that her mother asked him to leave. He stayed at the door for a while and then left.

Count 15: Section 271 Sexual Assault - C.B.

General

[176] I am satisfied on the whole of the evidence that D.N. touched C.B. intentionally in circumstances of a sexual nature; that C.B. did not consent and he knew she did not consent.

Shower Incident

[177] C.B. described an occasion when they were living on Axmith, about a month before they split up in April of 2022. On this day, she got out of the shower and when she did, D.N. said to her that “her boyfriend just called”. She said, “what are you talking about”. He said, “your phone (explaining it was not a number programmed into her phone), he just called your phone, go check the number”. She checked the number and did not know who it was. He pushed her and said, “I know you are fucking around”. He was accusing her that she did know the number. He told her that he knew she was “fucking around” because she “never wanted to have sex with him”. She did not say anything in response. Next, he said, “if you do not want to give up that pussy, I will just take it”. She was sitting on the couch, and he was sitting at the table. He came over and started grabbing at her, at her vagina. She had clothes on. It was over top of her clothes. She does not recall what she was wearing. He grabbed at her several times. She then went to kick him away from her. He grabbed her foot and pulled her off the couch and slapped her in the face. It gave her a black eye. She got up and sat on the other end of the couch and he went back to the kitchen table. He was started calling her names again and getting mad again. He came over to her, grabbed her by her hair, and was undoing his pants. He tried to shove his penis in her mouth. She would not open her mouth. He threw her on the couch. He had pulled his pants down far enough that he could get his penis out, he had her by the hair and was trying to shove his penis in her mouth. His penis was exposed and erect. She would not open her mouth up and he was trying to push his penis in her mouth. Her lips were pursed. His penis touched her pursed lips. He was holding his penis trying to force it in her mouth. When he could not get his penis in her mouth, he had her by the hair and just threw her back on the couch. The children were at school when this happened. She did not want him to touch her vagina or want to provide him with felatio during this incident. After 20 minutes to half an hour after, that same number called her phone, and it was determined that it was his mother calling her on his brother’s phone. After the incident, D.N. had gone back to sit at the kitchen table. Then his friend, Jay showed up to pick him up. She did not mention the incident to Jay because she is afraid of D.N. and it was embarrassing to her. I accept this explanation as reasonable on the whole of the evidence and C.B.’s history of hiding what was going on as previously dealt with herein.

[178] I.G. testified that she had conversations with C.B. in the summer of 2021, throughout the summer, that she related to seeing bruises starting to show up and she was around C.B. more frequently. I.G. testified that C.B. told her that D.N. would try to put his penis in her mouth, that he forced sex on her, and she felt raped. This was a separate conversation that took place in C.B.’s home, meaning separate from the conversation concerning J.H. At the times she had these conversations with C.B., C.B. and D.N. she knew that they were not on good terms. I.G. recalled a handful of times that they broke up, 5 to 6 times. The conversations occurred during periods C.B. and D.N. were not together or C.B. was trying to leave D.N. The conversations could have been in the summer of 2022 as opposed to 2021 but she tied them to the time frame she started seeing injuries which was in 2021.

[179] A text message exchange was filed that included C.B. writing about D.N. forcing his penis in her mouth. C.B. kept notes of when the messages were exchanged, namely April 19, 2021. This was approximately a year before they split up.

[180] D.N.’s explanation that C.B. was referring to a conversation about oral sex is not believable. On the one hand he described there were plenty of conversations between them about him receiving oral sex and that they were open with conversations about sexual stuff but in this instance that she took “a conversation the wrong way”. Specifically, he thought C.B. was referring to a conversation about oral sex where he jokingly said, “what do I have to do, force my penis in your mouth”. He testified that he believed she found it disrespectful and that “she took it the wrong way”. He testified that the conversation ended right there, and they had a little argument about that. Then he testified that he “said it on accident” (as opposed to previously testifying it was said as a joke). He claims he said sorry. Further, this explanation in my view does not line up with his own text message response, that he “did not know what came over him that day” – not that it was a joke or said on “accident”. On cross-examination, his evidence changed that the text message was addressing conversations (plural) they had in person and in texts about oral sex.

[181] C.B. disagreed with the suggested scenario that D.N. was joking with her; that when he brought up the comment to her about “boyfriend” that she took exception to that and brought up the sexual interference. She also denied that she was confusing the text message to be about an argument about oral sex; that he made a disrespectful statement to her, “what do I have to do to get oral sex, force my dick in your mouth” and/or he said sorry to her for saying this in a conversation about oral sex.

[182] D.N. testified that he remembered the phone call. He was sitting at the kitchen table. Her phone rang. He did not recognize the number. She was having a shower. He got up and “jokingly” opened her door, and said, “Christina, your boyfriend called” and went back to sit down at the kitchen table. She came out. She did not recognize the number either. She apparently then started accusing him of having a girlfriend and throwing the sexual interference in his face again. He believes she ended up calling the number back and it was his mother looking for her to see if she needed to babysit that night. D.N. testified that nothing else happened. He left and went to his mother’s house for a couple of hours until everything cooled down and then came back home. This was his frequent method of dealing with arguments – going to his mother’s. Sometimes he would go downstairs or stay away from her or go outside or go for a quad ride to de-escalate the situation.

[183] I do not believe D.N. I believe he did what C.B. stated. On the whole of the evidence and find the essential elements of the offence are established in respect of this event. I do not believe that the text message related to a “joke” or “accidental” comment he made during conversations about oral sex.

Christmas Party Incident

[184] C.B. and D.N. had been invited to a Christmas birthday party, December 18, 2021, at D.R. and P.’s house. She did not want to go at first because D.N. acts up all the time. They went. Everything was fine but then D.N. started acting weird. He would not talk to her. He was angry with her. They had gone with friends of theirs, I.G. and A. They drove C.B. and D.N. there. I.G. said, “are you guys ready to go”. He said, “I don’t know, maybe she wants to fucken stay”. She knew it was going to be the same “shit” as always. They left and were driven home; they were living on Axmith. D.N. was living with her at the time. When they got home, D.N. started calling her names, and accusing her of having sex with P. in the basement, when she went for a cigarette; at the party, they would smoke down in the basement. She was tired as it was all the same things, so she went upstairs; meaning “same old shit as he always does”. D.N. came upstairs. He was calling her a “slut” and other names. She had jeans on that had rips in them already. He grabbed her, ripped them, and pulled them off her. Then he put his fingers inside her vagina and said that she “smelled like dirty Jamali cock”. This incident did not last long, just long enough for him to do this. After he called her some more names and he went back downstairs. He called her a “dirty whore” and a “cum bag”. She stayed in the bedroom. The children were not at home. They were at her parents’ house.

[185] The incident involving J.H. as set out in this decision happened within days of this incident. After the J.H. incident, C.B. had a text message exchange with D.N. C.B. stated was sent December 21, 2021. She was at D.R.’s residence.

[186] C.B. testified that she was never downstairs alone with P. Her fiend I.G. and A. were there as well. She disagreed that it was a situation where he saw her downstairs with P. talking, then they went home, and he asked her about talking to P.; they argued and that was it. The fact that C.B. states that D.N. accused her of having sex with P. does not cause me concern. There is significant evidence that supports that D.N. had a jealousy problem and could get out of control.

[187] D.N. confirms they went to this party as described with C.B., I.G. and A. All the couples got along. He never had any issues with them. He was well liked with all of them, this is what he thought. He agreed he had a conversation with I.G. He did believe that C.B. was being flirtatious and he believes he saw it with his own eyes, like grabbing or touching P.’s arm or touching his hand. He thought he could talk to I.G. at the time and he did ask her if she saw C.B. flirting with P. and that I.G. said she did not. When he and C.B. got home, he did bring up the issue that she was being a little too flirtatious with P. and there was an argument. He let her know his feelings and what he saw. Nothing else that she described happened and he denies all the allegations. He also testified that it was pretty impossible to rip off jeans.

[188] D.N.’s evidence on jealousy presented as incredible. He testified that bringing the issue up with I.G. was not jealousy, he was just bringing up an issue that he saw with his own eyes. He then testified that he was not a jealous guy, not at all. He then testified that he did not know if she was flirting, but she was being flirtatious. Then he acknowledged that there was no difference between flirting and being flirtatious. He denied that he was glaring at C.B. on the ride home as testified to by I.G. He testified that he was “happy” when he left, but then agreed that he called C.B. names and had brought up the issue with her when they got home, and they had a little argument about it. He testified that he never went upstairs. He slept on the couch that night. The court would hear that this continued into the next day and a yelling match was going on.

[189] On cross-examination, D.N. repeated that he was not a jealous guy, not one bit, never. When his statement to PC Mabley was put to him, he testified that he did not recall telling the officer that he was a jealous guy, a little bit. He agreed he said that and testified again that he was not a jealous guy. When asked if he was lying to the officer, he testified that he might have said that then, but he is not a jealous guy and has moved on from C.B. and had a relationship with a new one. He had no clue why he said that to the officer, knowing that he was being investigated on some very serious charges. He testified that he was sticking to that he was not a jealous guy despite the fact that he told the officer he was, and several other witnesses said that he was. His words were played of what he said to the officer. They were, ‘I’m a jealous guy, little bit”. After hearing this, he testified that he is not a jealous guy anymore.

[190] At the party, when I.G. was upstairs cleaning up, she had a conversation with D.N. wherein she recalls that D.N. told her the C.B. was flirting with P. She tried to diffuse him and tell him that nothing was happening. He was jealous. He said to her, “You wait”. She said, “Wait for what?” He became very silent and went downstairs. She did not interpret D.N. to be saying that C.B. was having sex with P. downstairs during the party. She drove herself, A., C.B. and D.N. home that evening. She described noticing in her rear-view mirror C.B. looking out the window and D.N. glaring at her. She described that she felt the “thickness” in her vehicle and thought, “Oh no.” She prayed all would be ok. The next morning, C.B. called her hysterically crying, and saying she had not slept. She heard D.N. yelling at the top of his lungs in the background and children crying. She asked C.B. what was happening and C.B. then asked her, “Did you tell D.N. that I was flirting with P.?” She responded, “What?” She could hear D.N. calling C.B. very foul names, like “dirty cunt”, “slut”, “liar”. She asked C.B. to put her on speaker because she had an idea of what he was upset about because of the evening prior.

[191] D.R. testified that when the group of four left, D.N. had said it was time to go; C.B. was not quite ready but left with D.N., I.G. and A. D.R. got a call from her husband P. a couple days later and he told her that C.B. was down at the restaurant and was quite upset. P. drove C.B. and the children to her home. She observed C.B. was in her slippers and quite frantic. She had never seen C.B. like that before. She was upset, meaning crying, very emotional, and very anxious. She observed that G.H. was quiet and J.H. was not wanting to go home; he was emotional. She observed the children to be stressing about Christmas and wanting D.N. to leave the house. J.H. told her that D.N. had pushed him or grabbed him and was upset about that. C.B. told her that D.N. got upset with her saying that she was flirting, it got very heated, he brought her up to bedroom, took her pants off, stuck his fingers in her, and said some inappropriate things, like “is this how P. fucks you”; “in her” vagina is how she took it, and that he was talking about her husband. While not identical, the version is very similar to that of C.B. D.R. was told by C.B. that D.N. was accusing her of having an affair with her husband. They never had an affair. D.R. testified that this was a jealously thing with D.N. While D.R.’s evidence was not identical to C.B.’s, the differences presented as insignificant on the whole of the evidence.

[192] D.R. explained when asked if she considered telling anyone about what was going on, that she felt it was not her place or business to do that; she respected her friend’s wishes and she did not want to do that. As to having discussions with other friends of C.B. that she knew, she explained that a friend could tell her something, but it did not mean she had any right to tell another friend. She believed that C.B. trusted I.G. and would feel comfortable to talk to her.

[193] The general theme of many of the witnesses and the evidence was that C.B. did not want to report D.N. or disclose, and they went along with her wishes and/or chose not to get involved or could not get involved because of lack of information. This did not cause me any concern or strike me as unusual or uncommon unfortunately.

[194] M.C. observed D.N. and C.B. in good times and bad times. “Bad times” means arguments and yelling that she has seen. She cannot recall specific times. The context she saw the most occurring involved jealousy on D.N.’s part. She observed him getting mad and yelling which escalated into an argument. He called C.B. names, including “whore” and stuff like that.

[195] I do not believe D.N. and on the whole of the evidence find the essential elements of the offence are established in respect of this event.

Count 16: Section 117.01(1) Possession Firearm Contrary to Prohibition Order

[196] There is no question in my mind on the evidence that firearms were seized from C.B.’s home, and that they prior to being moved to C.B.’s home belonged to D.N.’s father. There is no question on the evidence that D.N. was prohibited to possess firearms by an order made under the Code, and no exceptions apply.

[197] D.N. states that the firearms are not his and he was not possessing them; they belonged to C.B. and she was possessing them. I do not believe him. I believe C.B. that they were D.N.’s guns being kept at her home because he was living there with her.

[198] Sgt. Gordon was involved in seizure of guns on August 25, 2022. C.B. escorted Sgt. Gordon and Lyttle to an upstairs bedroom and a gun cabinet. She saw C.B. unlock the gun locker. In the gun cabinet were two bb guns and two non-bb guns, a Cooey model 64 LR semiautomatic and Ithaca model 900 12-gauge semiautomatic. She described the weapons which was consistent with the exhibits. She took the items from the residence. Later she logged the firearms in to the OPP RMS. PC Mabley testified that these items were appropriately tagged and maintained in the Exhibit Locker at the Blind River detachment. All tags matched the items he brought to court. There were 4 weapons seized, which were shown to the court and identified through PC Mabley. These 4 weapons included the Cooey 64 and Ithica shot gun. Certificates of Analyst Savard were filed along with notices of intention to produce the certificates served by Cst. Pratt on March 14, 2024, with respect to these 2 weapons. The certificates verify the weapons as firearms. There is no contest that D.N. was subject to a weapons prohibition. PC Mabley identified a prohibition order in respect of D.N. regarding firearms. He obtained same from the OPP records management system, which he provided to the Crown. He obtained same from court officer Jason Irving the morning before he testified. A certified copy was filed.

[199] C.B. testified that D.N. originally had guns in the closet until she bought him a gun cabinet for Christmas in 2020; she believes with the trigger locks on, and they were locked in the gun cabinet after it was purchased. They had also bought L. and J.H. a pellet gun for Christmas, and they were locked in the gun cabinet as well. She cannot recall but D.N. may have taken the boys target practicing once.

[200] C.B. testified that D.N. brought the guns to her home with the rest of his stuff from his mother’s house. She was told that the guns were his dad’s guns either by him or his mother. She had no knowledge of his mother wanting the guns out of her house. She denied that it was a situation where D.N. told her he could not take the guns out of the house because of his firearms prohibition, and she said she would take them. Further there was never any talk of her hunting with those guns ever. She did take a hunting course. It was after the guns were in her house. They had always been in her house since she had been with him. Her taking the hunting course had nothing to do with his guns. They had no bearing on her taking the course. She has never fired those guns ever. The hunting course was just something she decided she wanted to do. C.B. has touched the guns once (couple of firearms and 3 pellet guns), when having to bring his stuff to him, when he asked for his stuff.

[201] D.N. testified that the guns came from his mother’s place, they had belonged to his dad, then changed that to both his mother and father. C.B. and he were having coffee at his mother’s and that his mother asked that they take them out of the house, he said he could not because he had a weapons ban, and that C.B. offered to take them. The purpose was that his brother would go over to his mother’s house once and a while and he had mental health issues, and they would argue, and his mother was fearful he would get a hold of them. D.N. testified that C.B. offered because she told him she was going to take a hunting course and take up hunting with these guns. C.B. testified she did not know anything about this regarding the brother and disagreed.

[202] In his mind, D.N. testified he was not possessing the guns and he never handled the guns. He testified that he saw C.B. grab them from his mother’s home and bring them to Axmith. On cross-examination, he started to testify that she grabbed the guns that night they were all together having coffee there but quickly changed it to another night when they were all together and that C.B. put them in the closet. He was not too sure when that was; he believed it was mid-summer 2021. D.N. later in his evidence testified that they were having coffee with his mother one day and that is when his mother brought up the issue and that is when C.B. grabbed them. Then he changed his evidence that the conversation was with his mother one day, and a day or two later C.B. took them. Then he testified that he was not with C.B. when she got them. He testified that he was at work at the time, and she went down and grabbed them. C.B. was not asked about D.N. being at work. C.B.’s evidence was that D.N. did not work and was on Ontario Works.

[203] D.N. also denied that C.B. bought the gun safe for him as a Christmas gift and the reason was because he had a weapons ban; and he never once possessed those or had them in his hand. He also agreed the guns were his fathers and they had kept them for keepsakes.

[204] In his statement to PC Mabley, when asked whose guns they were, D.N. responded very clearly, “they are in her house so how are they mine”. He also tells the officer that she does not go hunting and does not even have an FAC; he never saw her use them; he knew they were in the gun cabinet because they were together; and she had them when they got together; he did not know where she kept them before she got the gun case; that was before.

[205] His evidence presented to me as very incredible and that he was attempting to distance himself from the guns both with PC Mabley and at trial. His police-statement version is significantly different from his trial version. When put to him that this was a problem, he testified that in his police statement he meant that she had them when he went back to the house in July? It was very clear to me that D.N. was again changing his evidence to distance himself from what he told PC Mabley. D.N. was caught in this lie respectfully and presented as desperately trying to spin the story. He also testified that he had no interest in the guns, but it was clear that despite telling PC Mabley they were not his guns, he asked PC Mabley if the guns were gone.

[206] I find that the Crown has proven the essential elements of the offence beyond a reasonable doubt. I believe C.B. and on the whole of the evidence, find that these were D.N.’s guns and that he was possessing them and keeping them at Axmith when he was prohibited from doing so.

Count 22: Section 266 Assault of J.H.

[207] This charge is based on an occurrence involving C.B., D.N. and J.H. While D.N. has a different version of facts, there is no doubt that an event involving J.H. going to the floor occurred. From the submissions and evidence, D.N. purports that what happened to J.H. was an accident and/or that J.H. tripped on shoes at or near the door.

[208] As to whether he applied force to J.H., while D.N. has a different version of facts, D.N. admits to choosing to put his hands on J.H. to bring J.H. inside the house establishing physical contact with J.H. and that it was not accidental contact.

[209] As to whether J.H. consented to the force that D.N. intentionally applied, it is clear on the evidence that J.H. did not and that D.N. knew that J.H. did not consent to D.N. putting his hands on him.

[210] On the whole of the evidence, I accept that J.H. was coming back in on his own at C.B.’s direction. D.N. acknowledges that C.B. told J.H. to come back inside. D.N. did not describe the incident as J.H. not listening to C.B. in coming back in; just that he was not sure if he heard his mother calling him back in. The way J.H. and others described how he fell, it does not make sense that he was not already back as stated. If he was going out the door and did not hear his mother, his back would have been facing D.N. and he would have had to have been spun around by D.N. to fall forward into the kitchen, if what D.N. states happened, in fact happened. D.N.’s description did not include that he did that, it was a simple “pull back in”.

[211] D.N. denies any intention to hurt J.H. and/or to bring about the consequence of J.H. falling to the floor. I do not believe him. I believe that he put his hands on J.H. when he was angry from behind J.H.’s head/back, after he had already come back because J.H. was going to obtain police assistance.

[212] I do not believe D.N. that it was unintended and/or that J.H. tripped. He was angry at the time. He was arguing with C.B. at the time. I believe that in the circumstances described, considering C.B. asked J.H. to leave the home to get the police it is reasonable to infer that she would not have done so if D.N. was not angry to a level that was causing her concern, and that he was in the state she described and doing the things she testified to.

[213] I believe J.H. J.H. presented as honest and reliable.

[214] For J.H. and G.H., there would be reason for them to remember the occurrence. D.N. had never laid a hand on J.H. before making it an unusual event. Further, J.H. described having a good relationship with D.N. and there was no evidence causing me to question that he had any reason to give evidence more favourable to himself or C.B. He was able to observe D.N. before he went to leave the home and after he came back into the home and did not present as reporting an account based on information obtained from other sources. J.H. presented as trying his best to answer all questions he could answer. He did not exaggerate or make up excuses to avoid answering questions. His evidence was reasonable and consistent.

[215] D.R. testified that she was told by J.H. of the incident the day it happened; he ended up at her home that evening.

[216] J.H. testified that he was standing 2-3 feet away from it when D.N. grabbed him by the head and pushed him on the ground, motioning using his index finger of his right hand touching the back of his neck on the right side. This happened as he was just getting into the house. He denied that this was a case where D.N. pulled him, and he tripped to the ground. He testified that D.N. grabbed him and pushed him down. It was worse than when they played two hand touch football, explaining using his hands, that in two-hand touch football, it is a lighter touch using two hands. During the incident in question, D.N. used one hand. He knows he got pushed because he felt D.N.’s hand. D.N. did not say “sorry”. D.N. did not say “it was an accident”. J.H. went into his room on the main floor right after, crying. J.H. presented as very genuine and compelling.

[217] J.H. testified that after the kitchen incident he described, he went to his room like he was told to. He had come back into the house when his mother told him to. He agrees that “pushed to the ground” meant floor. He knew the difference between pull and push and testified that D.N. pushed him. He did not agree that because D.N. was already in the house that D.N. pulled him into the house. His mother asked him to come back in. She was at the front door. He turned around and started coming back in. He explained that he walked from inside the door and that there was kind of like a wall, thick corner wall thing, half thing and it has a mirror on the wall.

[218] J.H. denied that his mother told him about the incident or that he had a discussion with her about it. What he said to police is what he remembers. He denied that his mother told him to tell police about this incident. J.H. is sure the incident in question was not an accident. He agreed that he did not see it happen and that it could have been an accident. On re-examination, J.H. agreed that while he agreed with defence counsel when asked this, in his mind, it was intentional, not an accident.

[219] C.B. testified that she was trying to leave the house on Axmith. D.N. had her pinned against the back door of their house. Earlier she saw a police car parked up the street. D.N. would not let her leave and was pinning her so she yelled at J.H. to go get the police. When J.H. went out the door, D.N. let her go and said to her, “you better tell your kid to get back here cunt”. So, she went to the door and called J.H. back. J.H. came back, and when he came back into the house, D.N. grabbed him by the back of the head and threw J.H. to the floor. D.N. called J.H. “a rat piece of shit”. J.H. started crying and ran to his room. G.H. was there too. She wanted J.H. to get the police because D.N. was pinning her up against the door and not letting her leave, trying to get her cellphone and keys from her. He would not let her leave the house. After J.H. ran to his room, she yelled at J.H. to come out so that they could leave. She was able to get away from D.N. at this point. Because D.N. took her keys, they had to walk down to her friends D.R. and P.’s restaurant which was around the corner from her house. When they got to the restaurant, D.R. was not there. P. gave her his car and said, “you and the kids go to my house, D.R. is at the house”. When they got to D.R. and P.’s house, they walked in. J.H. was crying and told D.R. what D.N. had done to him. She remembers the date because she has text messages on her phone and knows it was a couple of days after P.’s Christmas birthday party; D.N. was still being abusive since the party. J.H. was already down the street when C.B. called him back to the house. C.B. disagreed that D.N. pulled J.H. into the house and that J.H. fell.

[220] D.N. agreed he touched J.H. He agreed he and C.B. were having an argument; that there was a police car down the street, and she sent J.H. outside to get police. He believes she looked out the window and saw the police car. She did not say that she saw a police car, she just sent J.H. out. He testified that he said, “whoa, can’t we have an argument just the two of us, why do the police have to be involved” and that she told J.H. to come back in. He grabbed J.H. by the back of his hoodie or t-shirt he thinks it was, he pulled him in the house and J.H. tripped over the shoes and fell on the ground. He did not intend for J.H. to go to the floor. He testified that he apologized and said that he did not mean to do that. He testified that he grabbed J.H. because he was not sure that he heard his mother tell him to come back in in the house, so he grabbed him by the back of the neck, t-shirt, hoodie. There were a bunch of shoes in the doorway. He agrees that J.H. started crying and went to his room. This incident caused C.B. to leave the house. D.N. presented as attempting to distance himself from knowledge of that fact. D.N. on cross-examination testified that C.B.’s keys were hanging up and she could have taken them. He could not remember when C.B. left that day. She chose to walk. D.N. testified that this made sense to him that she walked. This evidence presented as incredible and caused significant question. On cross-examination he could not recall if she left with the kids and stayed out overnight but that she could have. He then testified that he did not know if she left or not and she could have stayed. He does not recall her leaving offering that she left all the time to go to the store, shopping, get groceries. Then he agreed that he said that he did not remember; he did not know if she left or not. The text messages suggest otherwise. In the text message exchange related to this incident, he himself wrote to C.B. telling her that she did not have to leave, and he felt like an “asshole” for what he did to her and J.H.

[221] G.H. testified that she was there. She was in the living room, and they were in the kitchen. The door from outside was right in front of the kitchen table, by the kitchen table. The incident happened within a couple of seconds after J.H. came into the kitchen, describing that J.H. walked in and kind of went to the kitchen table and that is when D.N. slapped him in the head. With respect to the incident involving J.H., G.H. does not really remember what was going on between her mother and D.N. She remembers D.N. slapping J.H. in the head. She confirmed that J.H. went outside before the slap, that J.H. then came back in the house. She agreed that she did not see D.N. pull J.H. into the house. After the slap, J.H. ran to his room. Right after the slap, she saw J.H. fall, get up and go to his room. This was taking place in the kitchen. She agreed this did not make sense to her because she did not know what was going on. She agreed that D.N. had never been that way before to her or J.H. She did not agree that it was possible that D.N. pulled J.H. into the house and that J.H. slipped and fell as she was close to him. The fact that G.H. used the word “slap” causes me no concern with respect to her reliability. She is a child and had a different vantage point of observation.

[222] I found that this was another instance that D.N. presented as downplaying his anger, the argument, and or his behaviour/reactions and was not credible.

[223] I do not believe D.N. On the whole of the evidence, I am satisfied that all the essential elements of the offence are established beyond a reasonable doubt.

CONCLUSION

[224] Based on the reasons outlined herein,

1. On counts 1, 2, 3, 4, 7, 10, 15, 16 and 22, I find D.N. guilty.

2. On count 6, I find D.N. guilty of the lesser offence of assault causing bodily harm pursuant to s. 267(b) of the Code.

3. On count 11, I find D.N. guilty of the offence of mischief, pursuant to s. 430(4) of the Code.

[225] This case will be remanded to a date to be set for sentencing. Submissions will be accepted at the sentencing hearing for this matter regarding convictions to be entered.

[226] Again, if counts 14 and 20 were not already marked dismissed on September 6, 2024, they shall be marked same.

Rasaiah J.

Released: December 5, 2024