R. v. J.S., 2017 ONCJ 578

ONTARIO COURT OF JUSTICE CITATION: R. v. J.S., 2017 ONCJ 578 DATE: August 24, 2017 COURT FILE No.: Oshawa BETWEEN: HER MAJESTY THE QUEEN — AND — J.S. Before Justice B.M. Green Heard on July 17 th , 18 th , 19 th and 20 th Reasons for Judgment released on August 24 th , 2017 Mr. Parke as counsel for the Crown Mr. Lyons for the Defendant J.S. Green J.: A. Introduction [ 1 ] J.S. is charged that, on or between May 8 th and May 14 th , 2016, she assaulted her then 8 year-old son S.S. with a weapon namely a metal rod. [ 2 ] In 2016, J.S. and S.S’s father, J.H., were separated but they shared custody of S.S.

J.S. had custody throughout the week and J.H had custody of his son on the weekends and sometimes for an evening midweek. On Friday, May 13 th or Saturday, May 14 th , J.S. dropped her son off at J.H.’s girlfriend’s house so he could exercise his weekend access visit.

Within a short period of time of J.H. receiving custody of his son, he contacted the police to report injuries that he observed on his son’s face and body. [ 3 ] It is indisputable that S.S. suffered significant bruising as a result of being injured sometime prior to the evening of May 14 th when multiple photographs were taken by police of his injuries. The Crown filed dispositive photographs that show extensive bruising which included linear bruising to the right side of S.S.’s face from his temple down to his chin. His lip was blue at the edge and there was a purple contusion inside.

He had a series of lengthy linear bruises on the right side of his stomach down to his hip. He had extensive linear and less defined bruising to his lower back and left buttocks. There were additional linear lengthy bruises on the front of his right thigh.

He had linear bruising and injuries to the back and front of his body on both the left and right hand sides in higher and lower places. [ 4 ] While there can be no doubt that this young boy suffered injuries, the issue that this Court is being asked to decide is whether the Crown has proven beyond a reasonable doubt that J.S. caused these injuries to her son by assaulting him with a weapon.

[ 5 ] The Crown called three witnesses to prove this offence: S.S. the complainant who was 9 years old when he testified, an expert witness, Dr. Schwartz, who explained the nature and possible mechanisms of S.S’s injuries and S.S.’s father, J.H. Considering the lasting implications that this Court’s decision may have on the all of the involved parties, an extensive review of the evidence and this Court’s findings is warranted. B. Evidence i.

S.S.’s initial statement to police [ 6 ] On May 19 th , 2016, five days after the photographs were taken of S.S.’s injuries, S.S. was taken to the police station by his father and he provided a recorded statement detailing what happened to him. S.S.’s recorded account to the police was introduced by the Crown for the truth of its contents pursuant to

section 715.1 of the Criminal Code . For the most part, S.S. adopted the contents of his statement and it was admitted as his evidence in chief and filed with the consent of both Counsel as Exhibit 1 in these proceedings. [ 7 ] In the recording, S.S. explained that he and his 3 year old sister were at a park in the housing complex where he lives with his mother. While he was at the park, he was struck by a bike and then he returned home. He said that his mother was already in a bad mood because she was yelling and swearing at someone on the phone.

She got really mad at him because he “almost lost” his little sister and then she “started whacking” him multiple times with a long skinny metal rod that had leather on “every side, like top, middle and bottom”. [1] [ 8 ] S.S. did not mention any other precipitating incidents prior to his mother assaulting him until the Detective said: “so your dad had mentioned something about um, an incident in regards to Lego. There was a fight about Lego or something. You pushed K?

You mentioned something like that to him”. [2] S.S. explained that he had been in his bedroom with his sister and he pushed her because she had some of his Lego in her mouth. His mother hung up the phone forcefully and told him to come in her room and get a belt. He didn’t see any belts but he saw the metal rod and he thought about hiding it but he was “too late”. She took the metal rod and scared him into his room. She told K to get out and he thought she was talking to him so he tried to leave but she told him to stay in the room.

She began to strike him with the metal rod and he tried to stop her by holding onto it but that made her even madder and she “started smacking me 40 times”. [ 9 ] There were issues during the trial about whether S.S. related to the Officer that he had been struck by his mother with a rod on more than one occasion or multiple times on one occasion.

A fulsome review of the transcript and all of the references about the precipitating events leading up to this incident is of great assistance with clarifying that S.S was trying to express to the Officer that he was hit with the metal rod multiple times on one occasion. The Officer inadvertently confused S.S.’s responses about whether he was struck by his mother with the metal rod after a bike incident or an incident with Lego as opposed to both events happening on the same day but he was struck multiple times.

For example, S.S. clearly stated that the injuries he received were from the “Lego incident and almost losing K.” [3] . He detailed that his mother hit him many times with the rod. The Officer responded: “I’m getting a little bit confused” and asked S.S. whether he has been hit with the metal rod more than once and S.S. replied “yeah”. Similarly [4] , S.S. was asked the “last time” that he did something wrong that “caused” his mother to hit him. S.S. clearly replied “so like the last thing I did wrong or the last…”.

S.S. then related that the last thing he did wrong was “bumping” his sister when he was playing with the Lego which is consistent with his account that this incident occurred immediately before he was hit with the metal stick by his mother. S.S. was unequivocal that each bruise documented in the pictures was caused by his mother when she struck him multiple times with the metal rod. [ 10 ] While S.S. consistently detailed that his mother caused the linear bruising to him, near the end of the interview the Officer pointed out a bump on his forehead and asked how that happened to him.

It is important to note that S.S.’s interview with the Officer took place 5 days after the photographs were taken so that bump may have occurred in the intervening days. Initially, S.S. told the Officer that he was playing with a friend A.J. who sprayed him with water and then he “slipped and smashed my head on the little – my little ground”. Within seconds, his account changed and he added to his account stating that “and then AJ, he – when it was like actually fine, he actually smashed the wood on like my head.

And then that’s how it got a little bigger.” During the trial while S.S. was being cross-examined, S.S. was asked about the water incident with A.J. and he provided a third description of what happened: “It was because I poured that water on grass and I smashed my head on the metal bar, that this big fence is made of metal, and I smashed it off the edge.” [5] This was the first of many examples of S.S’s tendency to dramatically change his accounts about events and exaggerate details. ii. S.S.’s evidence in chief [ 11 ] S.S. was a talkative, energetic and fidgety 9 year-old witness.

As a result, the Court took numerous breaks to give him time to regroup and focus on the challenging task of answering the questions that he was being asked by both lawyers. Although he testified over a period of 2 days, he did not appear to be upset, emotional or distressed at any point during his evidence even when he related his account of his mother injuring him. [ 12 ] S.S. commenced his evidence in chief by relating that he didn’t know if the part of his recorded statement about being struck by a bike in the park was true.

He explained that “I don’t think that didn’t happen because if I got hit by a bike, the gears would have hit my leg and I would have had more scars.” [6] [ 13 ] The Crown showed S.S the series of photographs that were collectively filed as Exhibit 2 in these proceedings. S.S. repeated a number of times throughout his evidence in a matter of fact and consistent manner that his mother caused all of the injuries that were depicted in the photos. He testified that all of the linear bruises were caused by a metal rod that his mother used to assault him.

In addition, when he was shown photos of his face, he said “I think the side of my face was when she pushed me over and I fell face front into the carpet on the floor before…” [7] [ 14 ] Despite S.S.’s consistent account that his mother assaulted him with a metal rod, at the end of his evidence in chief, he made a disconcerting remark. He was asked if he told the truth to the officer about how he got some injuries and marks on him and he replied

that “I think that I didn’t know when I was saying how the marks happened” and “that I don’t know so it was – so it must have been a lie.” [8] While he may have been referring to his account of being struck by a bike being a lie, his cavalier attitude about telling lies about significant events was telling and continued throughout his cross-examination. iii. S.S.’s evidence cross-examination [ 15 ] Counsel for J.S. carefully questioned S.S. about the series of events in his life in the time period preceding going to his father’s home on May 13 th or 14 th , 2016.

For the most part, Counsel avoided leading questions and asked open ended questions in a calm and friendly tone. He tried to use age appropriate language and, if it appeared that S.S. did not understand what he was being asked, he would either explain or rephrase his questions. It should be noted, however, that the philosophical and abstract questions that were asked of a 9 year old witness about his understanding of the definition of the truth should be discouraged and were of little assistance to this Court.

What mattered was whether this child witness understood the obligation and importance of telling the truth and he stated that he did. [ 16 ] S.S. was honest when he was asked if he told “stories” that weren’t true in the past. He said that he lied once to keep himself out of trouble and he also lied to a teacher about injuries he had in the past.

He explained that his teacher saw an injury that his mother inflicted on him by hitting him with a spoon and he lied and he said that got hit by a bike. [9] Although counsel suggested that he lied to a teacher in the past about his mother hitting him with something pointy and metal and making his bum bleed, it was evident from S.S.’s responses that he did not recall any such occasion and he became confused when he was pressed about this issue. [ 17 ] Undoubtedly, there were aspects of S.S’s responses throughout his cross-examination which were exaggerated.

Nevertheless, a number of the examples relied on by Counsel during his submissions did not individually cause the Court concern about the veracity of his testimony and will not be reviewed in any significant detail. S.S.’s responses should be contextualized to his young age, what he was trying to express and his apparently limited understanding of time, concepts like before and after and numbers. For example, he responded “a thousand” to a number of questions to express things like how far he could throw a ball and how many comics that he received from a friend of his dad’s.

It was evident that he was using a big number to express that he could throw something really far or he received a lot of comics. He responded “a week” to questions about timing when it was not clear that he understood what a week meant. Similarly, there were many inconsistencies in his evidence about whether something happened before or after another event and it was readily apparent that this was a difficult concept for him to master. He could not recall what day of the week he was assaulted by his mother.

Likewise, S.S. was asked to explain to the Court where his mother hit him first and whether it was a forehanded or backhanded strike. All of these queries were understandably unimportant details to S.S. when recalling this traumatic event.

The more troubling aspect of his confusion and exaggerations was his willingness to fill in gaps in his memory or knowledge by either guessing or making things up. [ 18 ] In contrast to these minor or understandable inconsistencies, there were multiple relevant aspects of S.S’s evidence that demonstrated an alarming disposition to quickly change his accounts of important details, contradict himself and seemingly fabricate different facts from one moment to the next.

S.S. volunteered information about various other significant incidents without any suggestive questioning by counsel and then he would inexplicably change his accounts. There were numerous examples of this type of behaviour throughout his evidence. a. Serious allegations of abusive misconduct by people other than J.S.: [ 19 ] S.S. claimed that his mother taught him to be violent. Counsel asked a simple question about when he had been violent in the past. S.S started out detailing having a fight with some boys in his neighbourhood.

Without any prompting by Counsel, S.S.’s account varied considerably about why he was fighting with his friends, who he fought with, how many boys he was fighting with, how they fought and whether they even fought at all or if it was just play fighting [10] . Counsel specifically asked S.S. if any of the boys ever hit him with anything and S.S. initially responded “no”. Counsel pressed S.S. further and asked if they ever hit him with a stick and the following exchange occurred: Q. Yeah, they hit you with the sticks? A. Yeah. Q. Thomas hit you with a stick? A. Yeah. Q.

And that was the week before the pictures were taken? A. Yup – no, I think it was after – or before. Maybe it was before, yeah, before. Q. And was that just a stick from the ground, a wooden stick? A. Yeah, it was just a normal stick, from the ground. Q. Yeah. And is Thomas older than you? A. No, he’s actually eight. Q. He’s eight now or he was eight then? A. He was eight then. Q. Okay, so he’s the same age as you.

A. I think he’s nine now. Huh? Q. He’s the same age as you? A. He’s the same age as me, yeah. Q. Okay. So, he was hitting you with a stick. Where was he hitting you with the stick? A. Well, he was hitting me with the stick – like, in the stomach. Q. On the stomach.... A. And the back.... Q. And the back? A. Yeah. Q. On the sides? A. Yeah. Q. On your legs? A. Yeah. Q. On your arms? A. Yeah. Q. On your face? A. No, not on my face. Q. Is Thomas left-handed or right-handed? A. I think he’s right-handed. Q. He’s right-handed. Were you face down or face up when you he was hitting you with the stick? A.

I think he - it started off hitting me with the stick while I was up and then I fell down, then he started pinning me to the ground, while hitting me. But not really as hard.... Q. Not as hard as what, when he was – when you were face down? A. Yeah, he wasn’t really hitting me as hard. Q. So, when you’re face up, he was hitting you hard. A. No. Q. When was he hitting you hard? A.

He wasn’t hitting me hard. [ 20 ] S.S. advised the police during his interview that he had been hurt while playing with A.J. but that incident likely occurred after the photographs were taken of S.S.’s injuries but before S.S.’s was interviewed by the police.

There was no visible bump on his head in the photographs that were taken 5 days before his interview and S.S. explained during cross-examination, that this altercation occurred: “ It was when – it was when me and my mom, my dad – I wasn’t allowed to be with my mom, because she hit me before I had to go here and I had to go talk to Tim before and I was with Lana (ph) and my dad out and I think me and A.J. were fighting, I don’t know where in the co-op.

And I think he left and then I left and then I had dinner and I had to go to bed.” [11] Subsequently during cross-examination, Counsel suggested that this incident with A.J. happened before the pictures were taken and S.S. agreed. Whether or not this bump was sustained after the photos were taken, it is indisputable that S.S. could not consistently, credibly or reliably recount how his head was injured and he casually provided varying accounts which included accusing a friend of serious assaultive misconduct.

He went from claiming that he smashed his head on the ground, to claiming that his friend smashed him in the head with wood to smashing his head on a metal fence. [ 21 ] More important than the incident with A.J., unexpectedly while S.S. was testifying, he provided an account of being repeatedly hit with a stick by another 8 year old boy around the time that he sustained his injuries.

While he could not recall whether this event with Thomas occurred before or after the photographs of his injuries were taken by the police, he unequivocally stated that Thomas lived in his mom’s neighbourhood and A.J. lived in his dad’s neighborhood. [12] Accordingly, if this incident occurred with Thomas, it could have occurred in his mother’s neighbourhood before he was dropped off at his father’s home and before the photos were taken.

He did say, however, that Thomas had not hit him hard and it was his mother who caused his bruises. [ 22 ] Aside from the incident with the stick, Counsel tried to explore other potential causes of S.S.’s injuries. S.S. was asked straight

forward questions about whether his mother’s boyfriend, Derek, hit him. S.S. did not allege that Derek had been involved in assaulting him or disciplining him in any way during his recorded interview with the police. During cross-examination, however, S.S. claimed that Derek was an active participant in his abuse. He said that Derek “just” pinned him down while his mother hit him with a belt and a wooden spoon. When asked if his mother hit him with something else while Derek pinned him down, he replied: “No.

Oh, wait, mom pinned me down herself and then hit me with the stick by herself, because Derek wasn’t in the house while she was doing it. Unless Derek would take a belt and start hitting me too, that’ll make it even worse. [13] ” While that answer may be confusing and could be interpreted as a small child postulating about how the situation could have been made worse, Counsel asked S.S. the clarifying question about whether Derek hit him with a belt and he initially said “yeah” and then he immediately changed his answer to “or he pin me down himself by jumping on me”.

Counsel asked if Derek was jumping on him and S.S. changed his answer again, replying “no, he would just pin me down while my mom hits me”. b. Seemingly false allegations of misconduct by his mother : [ 23 ] S.S.’s exaggerated and varying accounts included accusations of misconduct by his friends, his mother’s boyfriend and patently false allegations of misconduct by his mother. S.S. knew that his mother and father had a text exchange about what caused his injuries.

He claimed that his mother told him to say that he was hurt by being hit by car and/or a bike but then he claimed that “the text messages saying that I also got hit by a bike were too small and my dad couldn’t see them.

And then my mom erased them.” It is unbelievable that the font in the texts was visible only to him and he could not have known what his mother did with the texts. [ 24 ] More dramatically, he was asked for details about why his mother would tell him to go and get something to hit him with and he claimed that “if I didn’t listen, she would take something even worse than the metal rod… She would take a piece of glass.” Counsel was taken aback by this additional account of abuse and asked whether she ever hit him with a glass and S.S. said no.

Counsel asked him why he would think that she would hit him with glass and he related the following bizarre story [14] : A. But I saw her throw it out the window and it hit somebody in the head. Q. You saw your mom throw a piece of glass out the window and hit somebody in the head? A. Yeah. And then she start.... Q. When did that happen? A. It didn’t really stop the person, the flat side just hit the person on the face. But it didn’t shatter, it just shattered when it hit the ground and then she started laughing and then she told me that if I ever do something really bad and not listen, she’ll do the same thing.

Q. Okay. When did that happen? A. I think April Fool’s Day. Q. Okay, on April Fool’s Day, why did your mom throw glass out the window? A. Because it was garbage and she just drop it down, because it was just like a really small piece of glass and when she went to go to drop it, she – there’s somebody over at the same place where she was dropping it and hit the person on the head with it. Then it went, hit the ground, it shattered. Q. A small piece of glass shattered on the ground or was it a big piece of glass? A. It was a small piece of glass. Q. How small? A.

It was this small....(it was agreed that it was a centimeter) … Q. So, piece of glass that’s a centimeter, your mom just dropped it out the window, it hit somebody in the face, dropped on the ground and shattered? A. Yes. Q. On the head or on the face? A. On the head. Q. Okay. And you say your mom threw it out the window? A. Yeah. Q. Okay. And why didn’t she put it in the garbage? A. Well, I don’t actually know. It must have been because the garbage was all full and the garbage isn’t really for shattered glass, I

guess. And – and then the recycling, the recycling was full with other garbage. And then the green bin was full of garbage, so – like, there’s not room for glass. Q. Okay. So, she drops this little piece of glass out the window, yes? A. Yes. Q. It hits somebody in the head, yes? A. Yes. Q. And.... A. It shattered when it fell on the ground. [ 25 ] The most shocking example of S.S.’s inclination to inexplicably add to his accusations of abuse by his mother was when he was confronted with an inconsistency in his account.

Counsel challenged S.S. about an obvious inconsistency in his accounts to police and his testimony in Court about whether he actually hid the metal rod from his mother before she hit him with it. When he tried to explain himself, he suddenly offered a new startling allegation of abuse. S.S. nonchalantly alleged that after his mother was done hitting him, he was “being allowed to have a bath and I almost got drown.

I almost drowned.” [15] Counsel asked S.S. to explain how he almost drowned and he claimed that his mother was still angry and she dunked his head into the bathwater for 20 seconds but he was able to hold his breath for that long and he put his head up, his mother put stuff on his injuries, he got dressed and then he left the house. [ 26 ] Counsel switched to another topic for a little while and asked him about what his mother put on him and he said that it was like a plant that you cut and it has medicine inside for scrapes and bumps and she put it everywhere on him except his lip.

Counsel then returned to his claims that his mother tried to drown him. S.S. explained that he was able to stop his mom from drowning him by simply taking her hand and lifting it up. Counsel pointed out that the Officer asked him quite clearly during his interview if there was anything else that he wanted to tell him about his mother and he never mentioned his mom trying to drown him. S.S. claimed that he forgot about this incident. Counsel pointedly suggested that he didn’t tell the Officer about his mom trying to drown him because it wasn’t true.

S.S. insisted that it was true that he took a bath and then she “started threatening me that she would drown me for – like a long time and make me drowned, she said I made you in this world, I’ll put you out of this world”. S.S. was asked again if his mother tried to hold his head under water and he insisted that she had both threatened him and held his head under water. He related this ostensibly traumatic event of his mother trying to drown him in the same manner that he described everything else, without any emotion, fear or upset. [ 27 ] During his interview with police.

S.S. did mention that his mother put “stuff” on his bruises after she assaulted him so “like if my dad does an assault, they won’t see it.” [16] Although he did not mention his mother trying to drown him, he inexplicably claimed that she was trying to kill him. The Officer asked him if he felt safe when he was at his mother’s house. He replied no and “not at all. There’s like vans there, like – maybe kidnappers like around there. And there’s – and my mom’s like kind of trying to kill me. And like there’s like lots of stupid kids here and at my dad’s”. [17] c.

The possibility that a bicycle accident caused S.S.’s injuries: [ 28 ] One of the many confusing aspects of S.S. testimony was whether or not he was telling the truth about having a bicycle accident before he was assaulted by his mother. Obviously, counsel was trying to explore whether an accidental tumble off a bicycle or being struck by a bicycle could account for S.S.’s injuries.

S.S. could not provide a consistent answer about whether the purported incident with a bike happened or not. [ 29 ] During his recorded interview, his examination in chief and his cross-examination, S.S. related that he had been struck by a bike at the park before his mother hit him with the rod. During cross-examination, he confirmed that he also went on a walk with his mother and his sister to get popsicles and he rode his bicycle but he denied that he fell off of his bike during their walk. [ 30 ] At varying points, he was asked whether or not he told the truth about being struck by a bicycle.

He explained that may have been a lie and he didn’t think that actually happened because he didn’t have injuries that looked like he had been hit with gears. He elaborated that his dad told him not to say that he had been hit by a bike because that was a lie. [18] Counsel argued that S.S.’s responses about the bicycle incident are suggestive that J.H. coached his son to lie about what happened to him. [ 31 ] It is evident from a review of all of S.S.’s answers about what his dad told him about the bike story was that he did not believe that his son’s bruising was caused by a bike accident.

After looking at those bruises, it is not surprising that J.H. did not accept that his son had been struck by a bicycle and sought the truth of how he was injured. There is a significant difference between telling a child to lie about a fact and telling a child that he is lying because his injuries do not correspond to a bicycle accident. J.H. did not instruct his son to lie and say he was not hit by a bike, rather, he was trying to cajole his son into telling the truth by saying that he did not have a bicycle accident. S.S. repetitively testified that his father always told him to tell the truth.

What is troubling about S.S.’s responses, however, is the suggestibility of this witness and his willingness to adapt his answers when confronted with inconsistencies. Instead of saying that he was not injured by the bike, he testified that it must have been a lie because he didn’t have injuries that looked like gears and his father told him not to lie. After saying that he lied about being struck by a bicycle, he said it was the truth. His answers about lying and telling the truth about the very same thing were irreconcilable. d.

The consistent and compelling aspects of S.S.’s evidence: [ 32 ] One of the few aspects of S.S.’s testimony that he was unwaveringly consistent about was that his mother was in a bad mood and she assaulted him with a metal rod that had leather on it. He saw the metal rod in his mother’s bedroom and he wanted to hide it from his mother but he was unsuccessful. His mother took the rod while they were in her bedroom, she scared him back into his room, she cornered him in his room and then she beat him with the metal rod.

He added some exaggerated details about his 3 year old sister’s involvement at points claiming that she pulled out their mom’s earring while she was attacking S.S. and/or she tried unsuccessfully to use

the phone to call for help. He fairly stated that his mother did not cause the goose egg on his forehead that the investigating officer noticed during his interview. [ 33 ] S.S. was asked if he ever told his father that the rod he was struck with was bamboo as opposed to metal. He said that he didn’t but he explained that his father used a bamboo stick on his own leg to show S.S. that a stick would have caused his injuries.

He said that his dad struck his own leg, waited a few minutes and showed him the red line that was caused by hitting himself with the bamboo or “greenish” thing. [ 34 ] When counsel asked if S.S. knew what the metal rod was used for, S.S. provided a much more detailed description of this weapon [19] . He explained that there was also a blue metal rod that was just like it and it was used for hitting horses. His mother told him that the blue one was used to make horses go faster but he didn’t really believe her.

He believed the one his mother hit him with was a decoration because it had stitching on the leather parts. The rod was about as long as a legal sized paper, it was round and it was about an inch thick. During cross-examination, he provided critical details about the leather ends of this rod. He said the leather was brown on the outside and a darker brown and fuzzy on the inside of the leather. Counsel eventually asked S.S. to draw a picture of the metal rod [20] and S.S. provided compelling and specific details about the end of the weapon [21] : Q.

And those little lines are on the side of the middle part of leather? A. Yeah. Q. And on the top of the bottom part of leather? A. Yeah. Q. And on the bottom of the top part of leather. A. Yeah. Q. And those are the stitches. A. Yeah. It’s the leather together. Q. And did you say you can go under the leather? A. Yeah, you can poke your finger on the ends of the leather and there’s like a little bit of fuzz underneath the leather. Q. And what about in the middle, can you put your finger in there? A. No. THE COURT: Sorry, Mr.

Lyons, just so we’re clear for the record, he was pointing to both ends of the stick that he drew when he said that. MR. LYONS: The top and the bottom, yes, Your Honour. … Q. Where in the closet was it? A. It was on left – left side of the closet. Q. Was it hanging up? A. Yes. It was hanging up by the clothes – clothes hanger, where you hang your – like, coats, and stuff. Q. How was it hanging on the coat hanger? A. Like, it was a triangle and it was – it looks like these other hooks on it.... Q. On what? A. On the clothes hanger... Q. Mm-hmmm.

A. ...there are – like, other hooks, so you can put stuff that he has to hook on and that’s where it was on the right side of the hook. On the right hook. Q. So, it’s on the right hook. How was it attached? A. There’s holes on the ends of the leather, by the top and bottom and then they hook it on to the edge of that – of the clothes hanger. Q. Okay. You didn’t draw any holes though, right?

A. No, because it was just – like, facing down. I can’t make 3D things, like the wanderers (sic). Q. Okay. A. It’s not holes – like, into it. There’s like – it’s wrapped around and then there’s a bit hole in the middle of the leather. The leather is not wrapped around the whole piece of rod, it’s a little bit of it is wrapped around and then there’s a little bit that’s – like, off – off the rod. And it goes... THE COURT: You’re holding your hand in – like... A. ...a hole in the middle, in that – like on it, it’s going to be inside. THE COURT: S.S., can you see me, Judge Green? A. Yes.

THE COURT: So you had your hand almost like a fist with a hole in the middle and you stuck your finger through it. A. Yes. THE COURT: So that was at the end of the rod and that’s what you were trying to show us? A. Yeah, like the hook is hanging off the – like, hanging off the rod and then when it was hooked on it, I was – like, scared half to death, so I had to hid it in the laundry basket.

But my mom found it and started hitting me with it. [ 35 ] These details about the ends of the metal rod provided critical information that was not previously disclosed to counsel because S.S. was never asked by the police to provide a fulsome description of the weapon during his interview. The Officer asked what he was hit with and whether S.S. knew what it was used for but he responded that he didn’t know [22] . In contrast, counsel asked S.S. to provide significantly more details about the weapon itself.

S.S.’s description of the leather at the ends of the metal rod is momentous because in the photographs of S.S.’s injuries, there is a plainly visible loop at the end of a number of the linear bruises.

It is inconceivable that a nine year old boy could have understood the corroborative effect of the additional descriptors of the weapon that he provided during his testimony. [ 36 ] Despite S.S’s consistent allegation that his mother hit him multiple times with a metal rod with loops on the end and his corresponding injuries, his evidence was undeniably fraught with inconsistencies, contradictions, lies and exaggerations. To address the challenges with S.S.’s credibility and reliability, the Crown called two additional witnesses to try and corroborate S.S.’s account that his mother beat him with a metal rod. iv.

Expert witness: Doctor Schwartz [ 37 ] Following a brief voir dire that established the extensive qualifications of Dr. Schwartz in the practice, training and research of pediatric medicine and with consent of both counsel, Dr. Schwartz was qualified as an expert witness in the areas of pediatrics and “the evaluation and

interpretation of suspected injuries in children”. [ 38 ] On October 1 st , 2016, Dr. Schwartz prepared a report in response to a request for her opinion about the potential causes of S.S.’s injuries. The report was completed based on information that she was provided from S.S.’s father, a physical examination of S.S., a review of the initial police report and the photographs that were taken of S.S. on May 14 th , 2016. Of particular note, the photographs that Dr. Schwartz reviewed in order to form her opinion were only thumbnails or smaller photos with 4 images per sheet. When Dr.

Schwartz testified in Court, much larger and clearer photos of S.S.’s injuries were projected on a screen by the Crown that enabled her to make additional observations. [ 39 ] Dr. Schwartz concluded that the bruises documented in this case had features that were unusual for an accidental injury and raised concerns for an “inflicted injury”. She relied on the location, pattern, number and size of the bruising when forming her opinion. Furthermore, she noted that the areas that were bruised have relatively larger amounts of underlying soft tissue which absorbs the force of minor trauma and prevents skin bruising.

Many of the bruises documented on S.S. were parallel linear bruises in these areas which suggested that they were the result of “forceful impacts with an object or objects that shape”. [23] The Doctor noted that the bruises documented in this case “were extensive in terms of size (particularly the face) and number”. The expert opinion was that these injuries were “highly suspicious for inflicted injury”. [ 40 ] Dr.

Schwartz reviewed whether these injuries could have been caused by falling off of a bike or being struck by a bike and she concluded that “although falling off a bike or getting hit with a bike could cause bruising in a child, the extent of the bruising (involving the face, abdomen, buttock and thigh; the left and right sides of his body and the front and back of his body), the size and number of the bruises and the linear appearance of some of the bruises documented in S. are highly unlikely to have resulted from a fall off a bike or from getting hit by a bike”. [24] In contrast, Dr.

Schwartz concluded that the documented bruises could be caused by being hit with a rod multiple times because “the linear bruises in particular are typical for forceful impacts with a straight, slender object such as a rod”. [ 41 ] While Dr. Schwartz was testifying, the Crown projected individual photos of S.S.’s injuries on a screen in the Courtroom. She advised the Court that these were far better images than the pictures that she reviewed and she was able to appreciate more of the details in the photographs.

In terms of the linear bruising, the Doctor explained that means it is a straight line that results from impact with an object of that shape or the border of an object of that shape. When an object makes a forceful impact with a person’s skin, the blood is

“squished” to the border of the object with the resulting bruise being an outline of the object used to make the impact on the skin. [ 42 ] Dr. Schwartz was very careful to explain that she could not provide an opinion with respect to when these injuries were caused since bruises cannot be dated and she could not quantify her opinion with respect to the amount of force necessary to cause these bruises.

She was able to rule out any bleeding disorder or other medical conditions that could have contributed to causing such extensive bruises. [ 43 ] Much of Doctor Schwartz’s opinion evidence was readily apparent from a review of the photographs. Even a lay person, like S.S’s father J.H., looking at S.S.’s injuries could see the prominent repetitive linear pattern of the bruises. This linear bruising on S.S. is obvious on every area of his body that had injuries including his face. The nature of the injuries to S.S.’s face are particularly important evidence.

In photographs 8 and 32 to 35, the bruising on S.S.’s face was extensive and the linear pattern was plainly visible. Doctor Schwartz described the extent of these bruises that were red and blue from S.S.’s eye down to his jaw line and from his ear to his nose. She noted that the bruises on his face had that same linear pattern on his cheek and temple.

Similarly, the bruises on his right flank were parallel linear lines that went in the same direction. [ 44 ] As Doctor Schwartz was reviewing the enlarged photos, she noticed a detail that she did not appreciate in the thumbnails that she had been provided to prepare her opinion. She observed that the parallel linear bruises were “looped” at the end which would have been the direct impression left by a forceful impact with a slender, thin object with a looped end or a circle with a hole in it. This looped pattern was most visible on the bruises on S.S.’s flank.

As noted, during S.S.’s evidence, he provided intricate details of the object that his mother used to beat him as a metal rod with leather in the middle and on both ends and the leather on the end of the rod had a loop or hole through it. [ 45 ] The police did not enter J.S.’s home and search for any weapons that could have been used to beat S.S. Other than S.S.’s description of the metal rod, there was nothing additional for the Doctor to review and compare to the injuries.

In addition, she was specifically asked if another child forcefully striking S.S. with a stick multiple times could have caused these injuries and she agreed that was possible. She reiterated that if S.S. was forcefully impacted with any object that had a linear outline with a looped end, it could have left the impression seen in the photos. She also could not say whether the bruises on S.S.’s face were caused the same day as the bruises to the rest of his body.

However, she did say that it was unlikely that the linear bruises on S.S.’s face could have been caused by falling off a bike onto a grassy boulevard. [ 46 ] Doctor Schwartz concluded that it was highly unlikely that a minor event like falling off a bike could account for the totality of S.S.’s bruises. Furthermore, taking into account the location, number and pattern of the bruises, it suggested forceful impact with a thin rigid object of that shape in all of those areas and that is highly suspicious for an inflicted injury.

In terms of the range of probability of her opinion from no concern, to accidental, to raises concern, the highest level that she attributed to this case was that of “highly suspicious” for inflicted injury. v. S.S’s father: J.H. [ 47 ] J.H. told the Court that his relationship with S.S.’s mom was acrimonious but he was able to see his son. Although they had an agreement about access, they had issues “all too often” about visitation.

Their mediated agreement was that he was supposed to see his son on weekends from Fridays at approximately 8 p.m. to Sunday at 8 p.m. and some midweek evening access. [ 48 ] J.H. was very candid about his son’s behavioural issues and challenges. He advised that his son was in trouble at his mom’s or at school on a weekly basis. He told the Court that S.S. can be aggressive and he has been disciplined for fighting with other kids. He agreed that his son tells stories and has been in trouble for being dishonest at school and at home and he still has problems with lying.

S.S. has told lies about other kids and about his teachers. When something bad happened, J.H. said S.S always claimed that it was everyone else’s fault. He agreed that S.S. lies about everything. He said that he would punish his son for misbehaviour by grounding him, taking things away from him and sometimes smacking him on the behind. He believed that S.S.’s mother also disciplined him by taking away his toys but she would also smack him with a wooden spoon.

He had never noticed any unusual injuries on his son before this weekend access visit that lead to him contacting the police and he did not raise any concerns that J.S. was abusive prior to this incident. [ 49 ] Throughout J.H’s evidence, he presented as a deeply conflicted parent who was extremely concerned about the injuries caused to his son but painfully aware that his son is not a reliable or credible historian. J.H. explained that he tried to impress upon his son throughout his life about the importance of telling the truth.

As noted, S.S. also testified that his dad was always telling him to tell the truth. Despite his best efforts, J.H. admitted that his son lied often and made up stories. [ 50 ] Like S.S., J.H. could not recall if J.S. dropped S.S. off on the Friday night or the Saturday morning for his weekend access. From his perspective, when his son was dropped off was not as important as what he saw after his son arrived at his home. It was not unusual for these two parents not to communicate with each other when he was dropped off despite S.S.’s young age. J.S. dropped S.S. off at dad’s home without speaking to him.

S.S. knocked at the door and J.H. let him in. Within minutes of his son’s arrival, J.H. immediately became concerned about the way S.S. was acting. Instead of greeting people, he went to another room. J.H. went looking for him and found him in the bathroom. S.S. had his face turned away but when he faced him, J.H. immediately noticed the bruises on his face. He asked his son what happened to his mouth and S.S. said that his lip was blue because it was cold outside. He examined his face more closely and told him that the discoloration was not from being cold. Initially, his son just stared at him.

J.H.’s first impression was that the bruises on his son’s face looked like “road rash”. [ 51 ] J.H. felt like he wasn’t getting straight answers from his son so he texted J.S. and she replied that S.S. got in a fight with someone at the park. He asked his son again what happened and this time S.S. said that he got into a bike accident at the park when he crashed into somebody. J.H. became suspicious because his mom texted that he had been in a fight and he was saying that he was in a bike accident.

He pressed S.S. for more details about the bike accident and he added details about a pedal striking him so J.H. asked to see where the pedal struck him. S.S. was wearing long pants and a long sleeved shirt so he did not initially see any of the other bruises. He began examining his son’s body and discovered the multiple bruises. He was shocked by what he discovered on his son’s body. He

felt that those bruises could not have been caused by a bike accident. [ 52 ] J.H. confronted J.S. about the bruises via text and she texted back that S.S. had a bike accident and that his helmet was loose so he injured his face. He then asked his son again what happened to him. J.H. pointed out that his injuries did not look like he had been struck by a pedal of a bike. His son just stared at him like he didn’t know what to say next. J.H. explained to S.S. that his mom was telling him one story and S.S. was telling him another story so he was “pressing” him to tell the truth but S.S. “still wouldn’t budge”.

Considering the nature of the bruises that J.H. saw, he wanted to show S.S. what could cause that kind of mark. He went and got a bamboo shish kabob stick and struck himself on the leg with it. He asked his son to watch what happened and a red linear mark appeared. S.S. responded something like “oh man, mom is going to kill me”. [ 53 ] J.H. reassured him that his mom wasn’t going to do anything to him and encouraged him to tell the truth. S.S. told his dad that he was playing with Lego and his sister destroyed it so he pushed her or tried to stop her and his mom lost it.

She was furious and she beat him with a stick. J.H. believed that S.S said it was bamboo with leather on it. He recalled his son telling him that his mother got the stick from her bedroom behind the door and S.S. tried to hide it. J.H. said his son seemed relieved when he told him what happened but he also seemed scared. He asked him why he lied about it and S.S. told him that his mother told him to lie. [ 54 ] After his son told him what happened, J.H. called CAS for some guidance and then he called the police. Despite the extensive bruising, J.H. did not feel that his son needed medical treatment.

The police took the photos of his son’s injuries on Saturday May 14 th at 9 p.m. [25] . J.H. reviewed each of the photos and related that they were the same injuries as all of his initial observations of his son’s injuries. He advised the Court that his son did not receive these injuries while he was in his care, S.S. arrived at his home in that state without any warning or initial explanation from J.S. [ 55 ] During cross-examination, counsel pressed J.H. about whether J.S. dropped S.S. on the Saturday morning as opposed to the Friday evening but he simply could not recall which day he saw his son.

He agreed that he did not believe any of his son’s initial stories about being cold or how he was injured until he told him that his mother was the one who hurt him. He was emphatic that he only pressed his son for the truth because his stories did not make sense when he looked at those bruises. He wanted the truth not to encourage his son to falsely accuse his former partner. He insisted that he never suggested that J.S. was responsible, S.S. volunteered that information. [ 56 ] J.H. was unequivocal that he did not tell his son what to say or to make up stories about his mother.

Rather, after seeing the linear bruising all over his son and receiving conflicting accounts from J.S. and S.S., he sincerely believed that his son was lying about how he got injured and he wanted to know the truth. He was concerned for his son’s safety. He was appropriately indignant when counsel accused him of injuring his son. Similarly, he clearly resented counsel’s suggestions that he was trying to turn his son against his mother and have his son make up stories so he could somehow avoid his child support obligations.

He told counsel that his allegations were absurd and he was 100% wrong. [ 57 ] Counsel pointed to two inconsistencies in J.H.’s evidence as evidence of his untrustworthiness as a witness. First, counsel emphasized that he did not divulge his entire criminal history when he was asked about his record. To be clear, J.H. knew that each lawyer had a hard copy of his record so there was no reason for him to be deceptive. Rather, J.H. immediately disclosed that he had record for domestic assault because he believed that was what counsel was asking about as opposed to other minor unrelated convictions.

He candidly disclosed other unrelated convictions when he was asked about them. In this context, his responses were not misleading at all. Secondly, Crown counsel asked J.H. is he was his biological son and J.H. said yes. During cross-examination, counsel confronted J.H. with the fact that he does not believe S.S. is really his biological son so he “lied” about this simple fact. J.H. told the Court that he raised S.S. since he was born as his own child. He was told S.S. was his son.

It is entirely understandable that he did not feel that a criminal trial about his son’s abuse was either the time or the place to discuss his misgivings about his son’s parentage. His response was not intentionally dishonest, he was simply trying to express that he considered this child to be his son. [ 58 ] J.H. was a credible witness who was understandably offended by the accusations that he either abused his son or manipulated him into lying. He did not present in any way as a witness who was invested in ensuring that J.S. was found guilty for abusing their son.

Quite the contrary, he seemed conflicted because of his son’s proclivity for lying. He expressed quite simply that he was in a position that he did not want to be in. vi. The defendant’s evidence: J.S. [ 59 ] J.S. described her son in similarly negative terms. He was enrolled in a small class with an educational assistant for children with special needs. S.S. had behavioural problems and difficulties with telling the truth. She provided examples of him acting out and lying about significant issues.

She advised that another parent attended her home to complain about S.S. being physical with her child and she apologized for his conduct. She also claimed that S.S. made a false allegation of abuse about her to a teacher which led to the school calling CAS. S.S. told the teacher that his mom struck him with a metal object that made hid bum bleed. C.A.S. attended their home and the file was closed. Similarly, she claimed that S.S. made a false allegation of being struck by a teacher but the teacher told her that S.S. had been aggressive.

J.S. did not present any school or C.A.S records or other witnesses as part of her defence. [ 60 ] Despite her son being a particularly challenging child, J.S. denied that she ever used any forms of physical discipline. She said that she never struck him with either a wooden spoon or a metal rod. She also denied that she had ever allowed her 8 year old son to attend the park with her 3 year old daughter unsupervised even though the park was close to their housing complex. [ 61 ] She had custody of her son but J.H. was supposed to see him on weekends from Friday to Sunday night at 8 p.m. and a night midweek.

J.S. explained that she and J.H. had trouble communicating and they both had difficulty with complying with the access arrangements to see S.S. In addition, shortly before this incident, she had a dispute with J.H. about years of unpaid or insufficient child support. She advised that she was contemplating legal proceedings to enforce J.H.’s child support obligations. [ 62 ] She related that Friday, May 13 th , 2016 was her birthday so she specifically recalled that she had both of her children at home that night.

She had not dropped S.S. off on the Friday evening for his scheduled visit because J.H. told her at the last minute that he had

a party to go to and he asked her to drop him off on Saturday morning instead. As a result, on that Friday evening, she went for a walkwith her two children and their two dogs to go and get popsicles. The kids were both riding bikes while she walked with the dogs. Shewatched as S.S. was riding about 20 feet ahead of her and he began rough housing with his sister by trying to bump her with his bike. S.S. was not listening to her and he fell off his bicycle onto the grassy part of the boulevard. S.S. was wearing a helmet but it was looseand sagged so she believed that is how he struck his face.

J.S. related that S.S. quickly got to his feet and she noticed that he had redmarks on his face. She asked him if he still wanted to get popsicles and he did so she did not think that he was seriously hurt. [63] According to J.S., her son had no visible injuries or bruising on his face prior to his Friday night tumble off of his bike. Although she initially described her son’s facial bruising as minor, during cross-examination she also testified his face got more tenderand she put ice on it. She described the bruises on his face as a “darker red” and they went from his cheekbone down to his jaw.

Inaddition, when Crown counsel went through all of his injuries in the photos, she also recalled that his lip was bruised because he mayhave bitten it. She added details that the following morning the bruising on his face looked like a “striated” pattern, like he had bumpedhis head and been dragged along contrary to her initial description of a minor tumble off a bike. J.S. did not explain how these “striated”marks were different from linear marks.

Instead, while she admitted that S.S. had “striated” bruising on the right side of his face in thesame area where the linear bruising is evident, J.S. denied that any of the linear bruises patently apparent in the photos were presentwhen she looked at him. Rather, by coincidence, S.S. sustained darker red bruises with apparently parallel markings falling off his bikeonto grass in the same area and same side of his face where he sustained linear bruises. [64] J.S. was asked if she was aware of any alternate explanations for the bruising.

For example, the Crown asked her if her soncomplained of being hit with a stick at any time during the days leading up to dropping him off at his dad’s and she replied that he hadnot. Similarly, she agreed that S.S. normally told her about any significant injuries and she did know of any occasion when he hid aninjury from her. [65] Despite her son having bruises on his face from his cheek down to his jaw line, she dropped him off the next day at his dad’sgirlfriend’s home without speaking to his father or advising him what happened to their son. She didn’t call to speak to her son to checkon him.

She blandly described dropping him off and that was the last time she saw him. In contrast to J.H.’s evidence, J.S. showedvirtually no emotion throughout her testimony even at moments when she was describing being indefinitely separated from her son. Even though that was the last week that she spent with her son, she could not recall if she had him for the full week. She believed thatshe may have had him for the full week, definitely Thursday to Saturday morning, but she could not recall if J.H. had midweek access.

She also could not recall whether her boyfriend Derek was with her on the Friday evening even though it was her birthday. Consideringshe was charged with abusing her son sometime prior to dropping him off at his dad’s home, she must have run that week through hermind mentally many times searching for explanations but reconstructing that last week did not seem to be a pressing concern for her. [66] J.S. advised that J.H. did text her sometime on Saturday afternoon or early evening and asked her about her son’s injuries butshe could not recall the exact content of the texts or the full conversation.

She denied telling J.H. that her son had been in a fight but shesaid that she made him aware that he does fight with boys. She claimed that the texts did not “pique” her concern because she viewedthem as a general back and forth between parents. She did not save the texts or have them with her when she testified. Rather, despitethe obvious importance of this text exchange, she claimed that she never read them again. [67] J.S. commenced her evidence by relating that she was in the midst of dispute over child support in the weeks leading up to thepolice being called.

In addition, this incident occurred in May while S.S. was still attending school and she was the primary custodialparent. Nevertheless, J.S. claimed that she was not concerned or worried when J.H. did not return custody of her son to her on theSunday night at the end of his scheduled visit and she had not spoken with or seen her injured child. She agreed that J.H. was supposedto return her son at 8 p.m. on Sunday and he did not call or text or even advise her that he was not coming home to go to school the nextday.

She was not arrested until the following week and her son still had not been returned to her care but she claimed to be similarlyunconcerned. It defies common sense that a custodial parent who is responsible for getting her special needs son to school and who istrying to get child support from his father would be completely unperturbed by her son not being returned to her care especially afterbeing confronted via text about injuries to her son. [68] Finally, J.S. made an interesting remark about J.H. during her evidence.

Crown counsel was asking her about S.S.’s challengeswith telling the truth and how both parents coped with disciplining him for lying. She stated that telling the truth is a value that J.H. triedto foster more with S.S. which is consistent with what both J.H. and S.S. said about how often J.H. would tell his son to tell the truth. She felt that she was more open-minded and wouldn’t pressure S.S. as much as J.H. did to get him to tell the truth. C. Legal analysis i. Burden of proof [69] It is important to start from the fundamental premise that a criminal trial is not a credibility contest.

This Court ought notchoose between competing accounts and decide which one is more credible or compelling. Furthermore, in order to be acquitted, J.S.does not have to prove any alternate explanations for how her son sustained these injuries or who was responsible. The burden of proofrests solely on the Crown. The only issue to be decided in this case is whether the Crown has proven beyond a reasonable doubt that J.S.assaulted her son with a weapon.

In order to make this determination, this Court must consider the credibility and reliability of thewitnesses who testified during the course of the trial. [70] When considering the evidence in a trial, it is important to distinguish between the concepts of credibility and reliabilitybecause they are different. As the Ontario Court of Appeal explained in R. v. H.C., 2009 ONCA 56 , [2009] O.J. No. 214(Ont.C.A.): 41 Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engagesconsideration of the witness' ability to accurately:

i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence [71] While a witness may not be credible or reliable with respect to certain aspects of their account that does not mean inexorablythat a Court cannot accept other parts of that witness’ evidence.

A Trial Judge is entitled to believe all, some or none of a witness’evidence. [72] Applying these concepts within the W.D. framework to the facts in this case, the Court must assess the evidence of eachwitness. First, regarding the defence evidence, whether the evidence of the accused is believed. Secondly, if the evidence of theaccused is not believed, whether the Court is left with reasonable doubt by J.S.’s evidence.

Finally, even if J.S.’s evidence is notbelieved and it does not raise a reasonable doubt, the Court must go on to consider, based on the evidence that is accepted, whether theCrown has proven J.S.’s guilt beyond a reasonable doubt. ii. Defence Evidence [73] J.S. testified in her own defence that she did not inflict these injuries on her son. She showed virtually no emotion whiletestifying about significantly emotional events in her life like J.H. keeping her son from her and never seeing her son or speaking with herson again.

She sat passively while reviewing large projected photographs of her 8 year old son covered in bruises. The Ontario Court ofAppeal stated in R. v. O.M., 2014 ONCA 503 , [2014] O.J. No. 3210 at para 34 (C.A.) that “it is well established thattestimonial demeanour is a proper consideration in the evaluation of a witness’ credibility”.

J.S.’s deportment throughout her testimonywas completely flat and was inconsistent with the expected reaction of a mother to the last time she saw her son and the extensive injuriesher small child suffered at the hands of someone. [74] There were more troubling aspects with J.S.’s account than her demeanour. She commenced her evidence by explaining to theCourt that she was in the midst of threatening legal proceedings against her former partner for years of unpaid child support.

Sheclaimed that she recently had a discussion with J.H. about this very issue yet she also claimed that she could not recall if J.H. had mid-week access to their child and she was completely unperturbed by J.H. not returning her son at the end of his access visit on the Sunday. After being confronted via text about her son’s injuries, she claimed that she was not concerned that J.H. did not call, text or even explainwhy her son was not returned to her care even though it was during the school year, her son is a special needs student and she isresponsible for him throughout the week.

This assertion made no sense and was incredulous. In these circumstances, the fact that shedidn’t try to contact J.H. or go to his home and demand the return of her child or call her child or even inquire why S.S. was not beingreturned to her care lends itself to a negative inference that she knew she did something wrong to her child. [75] Similarly, J.S. has not seen or spoken to her son for more than a year as a result of allegedly assaulting him and causing seriousbruising to his face and body.

Considering the extent of her son’s injuries and her assertions that she was not responsible, any caringparent should have played that last week with her son over in her mind multiple times searching for answers. J.S. could not recall if J.H.saw her son in the middle of the week, she could not recall if her boyfriend was there the night he fell, she didn’t keep or review any ofthe text exchange with J.H. about her son. She claimed that her son had previously falsely accused her of abuse and falsely accused ateacher of abuse but she didn’t request or review any supporting records.

To be clear, J.S. does not have to prove anything, thatunshifting burden rests on the crown. Nevertheless, J.S.’s hazy recollections about obviously important facts and her nonchalantrecitation of the events leading up to the loss of custody of her child are similarly inconsistent with her assertions that she did absolutelynothing wrong to her son. [76] Finally, Counsel argued that it makes no sense that his client would have dropped off her son without explanation to his father ifshe was aware of the extensive bruising that he had to his face and body. This argument is not persuasive.

By her own account, J.S.admitted that her son had extensive darker red “striated” bruises on his face from his cheek down to his jaw from a purported tumble offa bike that required ice but she callously dropped him off at his dad’s without going to the door, offering any explanation or expressionof concern for his continued well-being. Furthermore, J.S.’s account of her son falling off a bicycle with a loose fitting helmet to explainthe extensive “striated” bruising to his face, was both implausible and inconsistent with the medical evidence called by the Crown. [77] In the oft-cited decision of R. v.

J.J.R.D, (ON CA), [2006] O.J. No. 4749 (C.A.), the Ontario Court ofAppeal explained that: The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trialjudge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, theappellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt.

Anoutright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of thetruth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection basedon a problem identified with the way the accused testified or the substance of the accused's evidence. [78] Unlike the facts in J.J.R.D., there were obvious flaws in J.S.’s account and her denials of responsibility are rejected by thisCourt.

In addition, stacked up beside the evidence of J.H. and Doctor Schwartz which is accepted by this Court, J.S.’s evidence did notraise a reasonable doubt. Quite the contrary, J.S.’s denials of responsibility for any wrongdoing were inconsistent with her lack ofreaction to the sudden loss of custody of her son after being confronted via text about how he had been injured while in her care. iii. Child witnesses and the Crown’s case [79] While J.S.’s evidence has been rejected and it does not raise a reasonable doubt, that does not end the Court’s inquiry. The

Court must still consider whether the Crown has proven the accused’s guilt beyond a reasonable doubt based on the evidence that isaccepted. The Court must assess the credibility and reliability of the Crown’s witnesses. [80] The impact of any flaws in a witness’ evidence on a Court’s assessment of the credibility of that witness and the reliability oftheir account may depend on a myriad of factors including the age of the witness when the event occurred. The Court of Appeal in H.C.cautioned that: 42 Credibility requires a careful assessment, against a standard of proof that is common to young and old alike.

But the standard ofthe "reasonable adult" is not necessarily apt for assessing the credibility of young children. Flaws, such as contradictions, in thetestimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult. And further: 55 The assessment of credibility may not be a purely intellectual exercise. Myriad factors are involved.

Some factors may defyverbalization. [81] It is trite law that the evidence of any witness must be considered in the context of the applicable guiding legal principlesparticularly in cases that involve allegations of child abuse. Every person giving evidence in court, of whatever age, is an individualwhose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding andability to communicate. Please see: R. v. W.(R.), (SCC), [1992] S.C.J.

No. 56 at para. 26 (S.C.C.) [82] Over the past 3 decades, there have been a multitude of decisions outlining the special considerations that a Court must beguided by when assessing the reliability and credibility of the evidence of children. Please see: R. v. W.(R.), (SCC),[1992] S.C.J. No. 56 at paras. 24 to 29 (S.C.C.); R. v. B.(G.), [1990] 2 S.C.J. No. 58 (S.C.C.); R. v. H.C., 2009 ONCA 56 ,[2009] O.J. No. 214 (Ont.C.A.) [83] Justice Wilson, writing for the majority of the Supreme Court of Canada in R. v.

B.G. at paragraphs 47 and 48, explained: While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this doesnot mean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much more benignattitude to children’s evidence, lessening the strict standards of oath taking and corroboration and I believe this is a desirable standard. [Emphasis mine] [84] In this case, with the minor inconsistencies in S.S.’s evidence about peripheral details, the Court must consider his young ageand unique challenges when he experienced this traumatic event. As the Supreme Court of Canada noted in R. v.

W.(R.) at paragraph 26: It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or"child" standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developmentsin the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is anindividual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development,understanding and ability to communicate.

But I would add this. In general, where an adult is testifying as to events which occurredwhen she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as toperipheral matters such as time and location, should be considered in the context of the age of the witness at the time of the eventsto which she is testifying. [85] This case law, however, cannot be interpreted to mean that any inconsistencies in a witness’ account of what happened to themas a child are irrelevant. In R. v. A.M., 2014 ONCA 769 , [2014] O.J.

No. 5241 at paragraphs 8 to 17, the Ontario Court ofAppeal reviewed all of these decisions and summarized the law as follows: First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteriaappropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), (SCC), [1992] 2S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R. Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards.

Indeed, in itsprovisions 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 asrigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R Third, despite this flexibility, there are some guiding principles.

Generally, where an adult testifies about events that occurred when shewas a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence ofinconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at thetime the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, (SCC),[1962] S.C.R. 469, [1962] S.C.J. No. 27.

Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said inthe witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), (ON CA), [1994]O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistenciesmay emerge in a witness' testimony at trial, or between their trial testimony and statements previously given.

Inconsistencies [page 540]may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring tothem on other occasions. Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheralsubjects. 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 C.C.C. [86] For example, inconsistencies in a witness’ account about the number of times that they were abused may be a considered aperipheral detail in certain circumstances. The Ontario Court of Appeal in R. v. D.H. 2016 ONCA 569 , [2016] O.J. No. 3815held that: 50 Another issue that the trial judge labeled as peripheral was the complainant's inconsistencies on the number of times she wasabused by the appellant. In R. v.

H.S.B., 2008 SCC 52, [2008] 3 SCR 32, at paras. 11, 14-15, the Supreme Court allowed that a trialjudge may treat this issue as peripheral when assessing an adult witness's credibility in the context of remembering events fromchildhood.

However the Court went on to state: 53 While this analysis follows the Supreme Court jurisprudence in assessing the evidence from the perspective of an adult recallingterrible events from her past, it takes no account of the complainant's inconsistency in recounting the events to the police as an adult, thento the court the next year, going from abuse occurring 10 times to possibly 120 times, and the effect of this inconsistency on thecredibility and reliability of her account in her evidence.

As this court stated in M. (A.), at para. 12, "one of the most valuable means ofassessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has saidon other occasions." 54 The complainant went to the police as an adult and reported her story.

Although the trial judge was entitled to treat the frequency ofthe abuse as a peripheral matter in terms of an adult recalling events from childhood, the trial judge failed to also treat and assess themajor inconsistency between the complainant's report to the police and her trial evidence the next year about the number of times thesexual abuse occurred, as a prior inconsistent statement.

She failed to consider how this significant change in the complainant's memoryshould be viewed in the context of both her credibility and reliability in recounting the events in a formal context with legalconsequences. [87] While some inconsistencies in a witness’ account may be explainable because of their age or they are inconsequential details,significant inconsistencies in a witness’ account cannot be ignored. In R. v. M.M.C., [2014] O.J.

No. 1919, the Court of Appeal revieweda number of frailties with a child witness’ account and concluded: 52 The evidence about his penis, however, is not a detail of the "when and where" of the assault, nor is this a contradiction; it is aboutthe nature of the assault itself. It is the kind of inconsistency that should engender caution as to the reliability of the witness, evena child witness.

While the trial judge says that she does not need corroboration evidence to rely on and believe J.E.-J.'s testimony, as Isaid earlier, I think it was prudent in these circumstances to search for some. [88] Similarly, in R. v. D.H., 2016 ONCA 569 , [2016] O.J. No. 3815, the Ontario Court of Appeal also noted that: 41 It appears that the trial judge was implicitly accepting the mother's version of this event by suggesting that the complainant'srecollection may have been unreliable because she was testifying as an adult about events during her very difficult childhood.

However,if so, the trial judge provided no analysis as to why she concluded that the mother's memory was the correct one with respect to thisparticular event. 42 Furthermore, to characterize this as a peripheral matter was a misapprehension of the evidence. This was a significant issue in thenarrative of the abuse time period and one of the few issues on which both the complainant and her mother were participating witnessesand about which they could testify directly.

Nor could their evidence be reconciled: the complainant described a scene of crying andobjecting to go -- not just on one occasion, but every time -- which the mother denied occurred at all. [89] In this case, there were a number of minor inconsistencies and implausibilities in S.S.’s account which were about peripheraldetails or concepts that were understandably difficult for an eight year old boy to master.

It is hardly surprising that a young boy hadproblems consistently relating the events in his life leading up to being beaten, whether something happened before or after anotherevent, how many times he was struck or in what direction and whether or not he managed to successfully hide the weapon that was usedto hit him.

These minor inconsistencies do not cause insurmountable concerns with respect to the credibility and reliability of hisconsistent account that his mother brutally beat him with a metal rod while he cowered in his bedroom. [90] That being said, there are a multitude of significant issues with his credibility overall as well as numerous irreconcilableinconsistencies throughout his evidence. His testimony about many different important events was both incredible and unreliable.

S.S.’sevidence was already reviewed in detail but it is still important to highlight the most challenging aspects of his account. [91] S.S. was prone to wild exaggerations alleging serious abusive conduct that changed inexplicably from one sentence to the next. He accused his mother of potentially abusing him with glass and it quickly evolved into an odd account of throwing a shard of glass outthe window. He claimed that his mother tried to drown him although he never mentioned this before and his account was implausible.

He accused his mother’s boyfriend of being involved in assaulting him then he said he wasn’t. He provided wild stories about fightingwith other boys that seamlessly changed from minute to the next. The boys involved changed, where, when and how they fought orwhether they fought at all changed and finally, perhaps most dramatically, he claimed another boy repeatedly hit him with a stick. [92] With respect to the allegations themselves, while J.H. should not be faulted for how he elicited the explanation, the manner ofhow this disclosure came about is very troubling. S.S. tried to hide his injuries from his dad.

When he was first confronted, he said thathe was cold and then he claimed that he had been in a bicycle accident. During his testimony, he said the bicycle accident was a liebecause of the way his injuries looked but then he said it wasn’t really a lie because it actually happened to him. Considering the

appearance of these linear bruises covering his body and face, J.H. understandably did not accept his story. J.H. proceeded to text J.S. and then confronted S.S. with their conflicting accounts by showing him the texts but S.S. still stuck to his story about a bicycle accident. It was not until J.H. began striking his own leg with a shish kabob skewer creating a linear welt that this malleable child finally said that his mom was responsible for his injuries and that she beat him with a rod/stick.

He did not tell his father about fighting with a boy who hit him with a stick. [ 93 ] A Court is not obliged to address each piece of evidence and every alleged inconsistency posited by Counsel [26] . Th

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