Court File and Parties
COURT FILE NO.: CR- 23-10-0000 DATE: 2024-02-14
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Thomas McCann, for the Crown
- and –
BARDOTT WALTERS Thomas Evangelista, for the defendant Walters
HEARD: February 6-8, 2024
D.E HARRIS J.
Reasons for Judgment
[1] A dark and unflattering portrait of a family in total dissolution was on display in this trial. Ms. Walters, the mother of the family, faces criminal accusations from her other family members.
[2] The complainants in the three counts on the indictment are Ms. Walter’s oldest daughter Paige Foster, her younger daughter Madison Foster and her husband Donovan Foster. Madison, now 18, alleges that her mother slapped her face in a car in August of 2021 (count 1). Paige, 24 years of age, testified to being choked at age eight, being struck by a purse in the face when nine years old and being hit with the back of a hand in the face while 12-13 (Count 2). Donovan Foster, Ms. Walter’s husband, alleges that around 2014-2015, she kicked him while in bed and then, after he pushed her, she pulled some of his hair out (Count 3). Ms. Walters testified in her own defence and denied the allegations.
[3] The evidence shows that the marriage between Ms. Walters and Mr. Foster was in serious trouble from at least 2010. After much tribulation, on July 1, 2019, Ms. Walters announced that she was separating from Mr. Foster. The family proceedings mushroomed from there. Mr. Foster filed a Form 8 family law application in October of 2023. He sought a divorce, child support for Madison, Section 7 expenses for Madison, and equalization, amongst other things. There is a good deal at stake in those proceedings. There is plenty of acrimony to go around. The two complainants, Paige and Madison, side with their father against their mother.
[4] Mr. McCann, in very forceful submissions, argued that Mr. Foster’s Form 8 family law application, which was an exhibit on this trial, demonstrated beyond peradventure that the family law proceedings had no effect on the criminal case being tried. The basis for his argument was that the Form 8 did not include any reference to the criminal proceedings despite the criminal charges being laid well before, in November of 2021. He argued at some length that this was decisive evidence that the family and the criminal proceedings were unrelated and that the criminal allegations were not motivated at least in part by the intention to gain leverage in the family proceedings.
[5] However, Mr. Evangelista in his argument on behalf of Ms. Walters pointed to paragraph 4 of the Form 8 under the title Background. It reads,
On November 11, 2021, the Respondent [Ms. Walters] was arrested and charged with 2 counts of child abuse and one count domestic violence. She was removed from the matrimonial home at that time. The Respondent’s criminal case is ongoing.
[6] In reply, Mr. McCann never returned to his argument to acknowledge, as an officer of the court with a quasi-judicial duty of fairness, his misleading error on a critical point or to withdraw his argument after its premise had been shown to be erroneous. That is disappointing. As it was, his original argument based on a mistaken view of the facts, served to highlight the importance of the inclusion of the criminal allegations in the family law application.
[7] It is with good reason that it has been often acknowledged that criminal proceedings are susceptible to improper use to up the ante and manipulate family law proceedings to a complainant’s advantage: see e.g. Shaw v. Shaw, 2008 ONCJ 130, [2008] O.J. No. 1111 at para. 5 (Ont. C.J.); Gonzalez v. Trobradovic, 2014 ONSC 2468 (Ont. S.C.J.) at paras. 32-35. As I said in a recent decision explaining the need for a mistrial, albeit in the context of an intimate partner sexual assault case, (R v. A.G.), 2023 ONSC 6038, currently unreported),
[17] Motive to fabricate when a marriage is in breakdown mode is a central issue in many cases of sexual assault against an intimate partner. The anger and frustration of a family breakdown has been known to lead on occasion to criminal allegations that later prove false. To allege criminal misconduct is a strong temptation in the heat of family litigation. Criminal allegations serve as one of the most powerful weapons to gain leverage against the spouse: see e.g. Shaw v. Shaw 2008 ONCJ 130, [2008] O.J. No. 1111 (Ont. C.J.) at para. 5. In my judicial experience, this is a relatively common theme. And it was prominent on the evidence in this case.
[8] In the case at hand, given that all three complainants were embroiled in the family law proceedings between their mother and father, viewed along with the other evidence in the case, there was an obvious and powerful motive apparent to falsify allegations of criminal conduct.
[9] Out of this fraught situation, and based on a manifest lack of confirmation for any of the three counts, Mr. McCann asks me to find Ms. Walters guilty of assaults against her family members.
[10] It is critical to keep in mind with reference to the absence of confirmation for the three complainants’ evidence the words of Justice Fish in R. v. Khela, 2009 SCC 4, [2009] 1 SCR 104,
1 Legal systems far separated in time and place have long recognized that it is dangerous to rest a criminal conviction on the testimony of a single witness, or on a single piece of evidence. This concern is at least as old as Deuteronomy. It arises because witnesses can lie deliberately or mislead inadvertently, documents can be forged, and other items of evidence can be tampered with or planted: P. Roberts and A. Zuckerman, Criminal Evidence (2004), at p. 466.
2 The evidence of a single witness is nevertheless sufficient in Canada to support a conviction for any offense other than treason, perjury or procuring a feigned marriage. Many serious crimes might otherwise go unpunished. But where the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful credit or veracity, the danger of a wrongful conviction is particularly acute. (Footnote omitted)
[11] That is particularly apropos in this case in which there is no confirmation for any of the three counts and the motive to fabricate is palpable.
[12] Moving to the specific evidence, with respect to count 1, Madison Walters is 18 years old and a student at Brock University. She testified that her mother slapped her once in August of 2021 as they were driving away from a teachers’ credit union following the deposit of a cheque.
[13] There are innumerable problems with Madison’s evidence. She said in her statement to the police that the cheque that was being deposited at the credit union was from her work income but she admitted on the stand in this trial that this was knowingly false. It was a COVID credit cheque. No explanation was tendered for why she was dishonest in this regard. But that she was, whether for any specific reason or gratuitously, constitutes a major blow against her credibility.
[14] Furthermore, Madison’s account with respect to the slap, the gravamen of the offence, was poor and unreliable. She was unsure whether the slap was backhanded or with the palm of the hand. In an attempt to justify this lack of certainty, she testified that her eyes were closed at the time. Her evidence with respect to where the impact was on her face vacillated, although she seemed to settle on it being on the right side of her face even though the left side of her face would have been closest to her mother.
[15] The more serious problem which suffuses her evidence is the bile and hatred she harbours for her mother. It was not disguised in any way; indeed, it was flaunted with pride.. It was of undiluted virulence. In cross-examination, she did not miss any opportunity, no matter how slight or fleeting, to slag her mother’s character. Within every answer, quite literally, she managed to express outright contempt for her mother. The majority of these answers were unresponsive to the question that was asked. For example, when some of the good things her mother did for her were put to her, she inevitably answered that they were done “forcefully”.
[16] For Madison, the vitriol against her mother was a point of pride. She went so far as to slip in discreditable conduct evidence that had been previously ruled inadmissible and that she had been instructed by the Crown Attorney not to talk about in evidence. That was dishonest and speaks very poorly of her veracity. Madison’s attacks on her mother were an unvarnished character assassination.
[17] At one point, apropos of nothing, Madison Foster referred to her mother’s inappropriate conversations about sex in front of her and the use of sex toys. Her efforts towards the total debasement of her mother’s character knew no bounds. By the end, Madison sacrificed all her credibility on the alter of her hatred for her mother. Moreover, she had no respect for the court process.
[18] Madison’s evidence was so concerning that even Mr. McCann, in a moment of clarity and good judgment, seemed to agree that her evidence, due to her open hatred, was weak. Yet he never formally withdrew his request that Ms. Walters be found guilty of this count. In my view, to find anything Madison said against her mother as plausible let alone proven would be unreasonable and unsafe. I have no hesitation whatsoever in rejecting her evidence in its entirety and with it the evidence that she was slapped by her mother. In my view, it is likely that she lied about the slap in her evidence before the court.
[19] On the other hand, with reference to count 2, Paige Foster was a composed, well-spoken witness. But there were problems with her evidence too. She testified that she was choked at age eight by her mother to the point that she could not breathe. The motive for the attack was that Paige had received a C+ on a school test. In her police statement she said that she fell to the floor. But in her testimony, she added that her mother jumped on top of her when she was on the floor, straddled her, and continued to choke her but even harder now. Although Mr. McCann disputed that there was a discrepancy, he was clearly wrong. This additional allegation cast some negative impact on Paige’s reliability and, to a lesser extent, her credibility.
[20] The second incident occurred when she was about 9 years old. She had lost a library book and, out of anger, Ms. Walters used a purse to hit her. Paige alleged that the purse left a cut under her left eye. There were also three lines on her neck from Ms. Walter’s nails, when she held Paige up against the wall. Paige testified that she went to the bathroom to wash off the blood. She changed her shirt. Paige testified that she wore a turtleneck for a whole week to conceal the marks. She also testified that the cut under her eye scabbed over.
[21] There are several insurmountable problems for the Crown with respect to this allegation. First, Paige testified that her brother Christopher Gayle, a young adult at the time, was present for this incident and removed Ms. Walters from Paige. Christopher testified for the defence and said the incident did not happen. Furthermore, Mr. Foster, the father of the family and complainant on count 3, was living in the family home with Paige, Madison, Christopher and Ms. Walters. He did not see any marks or the scab under the eye. Nor did Christopher for that matter. The scab in the soft tissue under the eye would have taken at least one week to heal, if not two weeks. Mr. Foster worked long hours but in my view, if the injuries had occurred, he most certainly would have seen them at some point. This was a conspicuous injury.
[22] The third incident allegedly occurred when Ms. Walters picked Paige up from swimming. Paige was 12-13 years old. Ms. Walters was late and Paige testified that they were both irritated. When she got in the car, Ms. Walters backhanded her. Ms. Walters ring “busted” her lip. It was Paige’s evidence that the ring was a wedding ring usually worn on the left hand. She speculated that the ring had been switched to the right hand specifically to inflict extra damage to her face. I would note in passing that I find it questionable that her mother would have harboured such premeditated malice. There is also some concern about Paige’s speculation why the ring was switched from the left to the right hand.
[23] With respect to count 3, Mr. Foster testified that a year and a half after his back surgery to repair car accident injuries, in about 2014-2015, he and Ms. Walters were in bed. They had been arguing about a trip he was to make the next morning to take his other daughter to school in the United States. According to him, Ms. Walters got angry and, as his back was turned to her in the bed, kicked him in in the area where his stitches had been. They got out of bed and faced each other. He pushed her and she then pulled his dreadlocks.
[24] Although there were no internal flaws of significance in Mr. Foster’s evidence like there were in his daughters’ evidence, nor was there anything particularly compelling about his evidence. It is noteworthy that none of the three complainants reported the assaults to each other nor to the police for many years with the exception of Madison. The situation is different than failing to complain about sexual assaults. In the area of sexual assault, the law has recognized long ago that the lack of timely complaint is often misunderstood and overvalued: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. It is frequently appropriately explained away in an interfamilial context by a dependence on the accused and\or profound emotional confusion arising from the trauma.
[25] In this case, Paige was between 8 and 13 years of age when she was assaulted by her mother. She never complained to her father who lived with them. Her explanation that she was told not to by Ms. Walters should be viewed skeptically. Mr. Foster did not complain to anyone for many years. All three gave police statements virtually simultaneously in early November, 2021, in the midst of the family law imbroglio. That timing is very suspicious.
[26] Mr. McCann for the Crown aggressively attacked any idea that there had been collusion between Mr. Foster and his daughters against their wife and mother, Ms. Walters. He forcefully argued that there was no “air of reality” to collusion. It is something of a mystery why Mr. McCann would have used the “air of reality” standard to argue against collusion. Air of reality thresholds regulate what legal issues ought to go to a jury. If a trial judge finds that there is no air of reality, the subject matter ought not to be left to the jury. For example, in order for self-defence to be put to the jury, it must have an air of reality (R. c. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3) as must an honest but mistaken belief in consent in the law of sexual assault (R. v. Park, [1995] 2 S.C.R. 836), to name but two examples.
[27] Discussion of collusion most often finds its way into the caselaw in the context of similar fact evidence. The Supreme Court in R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908 held that collusion can destroy the very rationale for admission of similar fact evidence: paras. 104-110. An “air of reality” to collusion will shift the onus to the Crown to demonstrate that the similar act evidence is not actually tainted by collusion: para. 112. That is not our situation in this case. However, it is relevant that in Handy, Justice Binnie held that there was some evidence of actual collusion, saying (para. 111),
The ex-wife acknowledged that she had told the complainant of the $16,500 she received from the Criminal Injuries Compensation Board on the basis, she agreed, that "[a]ll you had to do was say that you were abused". A few days later the complainant, armed with this information, meets the respondent and goes off with him to have sex in a motel room.
[28] In a judge alone case in which there is no similar fact aspect, there is no need to argue collusion on the air of reality standard. Its set the bar too high and is unnecessary. The real issue is actual collusion. It may be that Mr. McCann argued that there was no air of reality to collusion as a rhetorical device to emphasize and gather force behind his submission. He argued, in effect, that there was nothing approaching collusion. In other words, if this were a jury case, Mr. McCann would have been adamantly opposed to leaving the issue of collusion to be considered by the jury.
[29] In my view, the argument that there is no air of reality to collusion was so devoid of merit as to be manifestly frivolous. Indeed, not only was there an air of reality to collusion, there was clear evidence of actual collusion. The defence need not of course prove collusion as that would infringe the burden of proof and the presumption of innocence: see by analogy R. v. Bartholomew, 2019 ONCA 377. But the evidence of likely collusion on this record was overwhelming.
[30] The collusion in this case certainly measures up well with that found to be present by Binnie J. in Handy. The three complainants were all nuclear family members and very close. There was ongoing family litigation in which there was a lot at stake. Not only was there the issue of equalization and the financial implications that go with it but custody and child support of Madison was potentially a live issue as well. All three teamed up against Ms. Walters. Madison’s anger against her mother was unbridled and could not be restrained even in court. It was very likely to have influenced her sister and father. Paige admitted that she was angry with her mother. Moreover, Paige admitted saying that she wanted to ensure her mother, a teacher of children, would no longer be with children and should lose her job. She was clearly vindictive. All three of the complainants complained at the same time to the police. There was evidence that there was a video call amongst them immediately before they complained. Paige admitted discussing the allegations with her father and sister. And all of the complaints except for Madison’s were made years after the supposed incidents.
[31] There are other indications as well. Suffice it to say, the only way for the Crown to have to have argued that there was not even a threshold air of reality to collusion is if he mistakenly believed that it must be proved by the defence or that it must be based on direct as opposed to circumstantial evidence. Neither is correct in law. Contrary to his argument, I find that there is a likelihood of collusion between the complainants in this case.
[32] In the final analysis, looking at the three counts on the indictment, Mr. McCann was unable to articulate in any reasoned fashion why I should accept and prefer the unconfirmed and flawed evidence of the complainants over that of Ms. Walters. Of course, his burden was much greater than this; he had to explain why I should accept their evidence beyond a reasonable doubt. Their evidence was unconfirmed and marred by animus, motive to fabricate and collusion. In addition, there were the significant credibility and reliability issues as mentioned above with respect to each of them.
[33] Even before looking to Ms. Walter’s evidence, the Crown has fallen far short of proving guilt beyond a reasonable doubt on the three counts in the indictment. I must be “sure” of guilt. But I am very far from sure.
[34] Although it is strictly speaking unnecessary, I will make some brief comments on Ms. Walter’s evidence. It was not without its flaws. For example, with respect to the choking incident, she claimed that Paige would never have received a C+ grade as she was a gifted student. She would never have taken out a library book as she disliked books that had been handled by other people. She would never have been late to pick up Paige at swimming as she was always very punctual.
[35] This evidence was too perfect and absolute to be convincing. Never is an exceptional state. Nonetheless, although it is unnecessary to determine whether I believe Ms. Walter’s evidence, I can safely say I do not reject it. In several instances it is to be preferred over the complainants for example in relation to the Madison slap and Paige’s purse allegation. In totality, Ms. Walters’ evidence adds to the large reservoir of reasonable doubt arising from the complainants’ own evidence.
Conclusion
[36] In conclusion, for these reasons, Ms. Walters is found not guilty on the three counts before the court. The indictment will be endorsed accordingly.
D.E HARRIS J. Released: February 14, 2024
