R. v. Asling, 2011 ONCJ 838

Citation: R. v. Asling , 2011 ONCJ 838 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SEAN ASLING Reasons for Ruling Concerning the Admissibility of Hearsay Evidence Trial before Justice S. C.

MacLean Hearsay Evidence Heard on July 7, 8 and 9, 2010 Trial Scheduled to Continue on January 24 and February 10, 2011 Reasons for Ruling re Hearsay Evidence released on January 11, 2011 Michael Newell ..................................................................................................... for the Crown Malcolm McRae ......................................................................... for the Defendant, Mr. Asling MacLEAN J.: Overview of the Proceedings 1 . These are the Reasons for the Ruling with respect to the admissibility of hearsay evidence tendered by the Crown. 2 .

The complainant, Mary O’Neill, is the 83-year-old maternal grandmother of the Defendant, Sean Asling. Paul Asling, her son-in-law (the father of the Defendant), testified that she suffers from Alzheimer’s and that her symptoms have been apparent for over 5 years now. Her cognitive abilities have progressively diminished during the course of her illness to the point that she is not capable of testifying in these proceedings. 3 . The Court heard evidence over three days, including a voir dire with respect to the capacity of Mary O'Neill. Paul Asling testified about Mrs. O'Neill's cognitive difficulties.

Her neighbours, Wendy Thompson and Margaret Kelly testified about their observations of Mary O'Neill and the things that she told them on April 27, 2009, the date of the alleged assaults. They, along with Christopher Kelly (who is Margaret Kelly's adult son), also testified about the alleged history of verbally abusive behaviour by Sean Asling towards his grandmother. P.C. Kevin Henderson, a Scenes of Crime Officer, took photographs of the injuries apparent on Mrs. O'Neill which were introduced during the trial. Det.

Robert Findlay provided evidence about his videotaped interview of Mary O'Neill on the date of the alleged assaults. Dr. Ferhana Tahir gave evidence about her observations of Mrs. O'Neill and discussions with her at the Lakeridge Health Bowmanville hospital on April 27, 2009. 4 . The Court requested written submissions with respect to the admissibility of the hearsay statements made by Mary O'Neill to Wendy Thompson, Margaret Kelly, Det. Findlay and Dr. Tahir.

These Reasons quote extensively from those submissions and I am very grateful for the assistance provided by both Crown and Defence Counsel in this regard. 5 . The parties were previously advised of the outcome of this Application on November 29, 2010 with Reasons to follow. The Trial was scheduled to continue on December 1, 2010; however, the Defence requested that these Reasons be provided before a decision could be made about whether to call any evidence for the Defence. The Trial is scheduled to continue on January 24 and February 10, 2011. Issues 6 .

The issue to be decided is whether the hearsay statements made by Mary O'Neill to Wendy Thompson, Margaret Kelly, and Dr. Tahir and Det. Findlay on April 27, 2009, describing what her grandson, Sean Asling, had allegedly done to her, are admissible.

7. It is conceded by the Defence that the Crown has satisfied the necessity requirement for the admissibility of the statementssince Mary O'Neill is incapable of testifying due to suffering from Alzheimer's. 8. The focused issue is whether any of the Hearsay statements made by Mrs. O'Neill are sufficiently reliable to meet therequired threshold reliability standard for admissibility.

Summary of the Position of the Crown 9. The Crown argues that the hearsay statements tendered are sufficiently reliable to be admitted into evidence. It is submittedthat the probative value of the proffered statements is very high. The Crown submits that Mrs. O’Neill’s utterances made on the day thatshe was assaulted offer the best evidence of her mental condition and of her contemporaneous recollection of how she suffered herinjuries. It is argued that the statements facilitate the Court’s search for the truth.

The Crown argues that the statements are not undulyprejudicial and that there are not an undue number of statements for the Court to consider. It is also argued that the Court has a body ofevidence that it can resort to when assessing ultimate weight.

Summary of the Position of the Defence 10. The Defence argues that none of the statements made by Ms. O’Neill on April 27, 2009 could ever be considered reliable inlight of her limited mental capacity on that date. It is argued that the Crown cannot establish even threshold reliability of thosestatements on the basis that given the circumstances in which the statements arose there would be concern about their truthfulness. TheDefence submits that it is not even known if Ms. O’Neill had the capacity to determine truth from fiction on that date.

The Defencesuggests that the circumstances in which the statements came about are murky and may lead to numerous potential inferences andconclusions, and that therefore they are not reliable and trustworthy. It is argued that the Court could only adopt the inferences proposedby the Crown if in fact the hearsay evidence is true. The Defence submits that this proposed reasoning relies upon circular logic andcannot assist in determining the reliability of Ms. O’Neill’s evidence.

It is also argued that without significant corroboration the hearsayevidence of a witness whose capacity is in issue does not meet the requisite standard of reliability even at the threshold stage of theinquiry. THE LAW Relevance 11. The Defence concedes and the Court accepts that the law regarding Relevance, Admissibility and Probative vs. PrejudicialValue as set out in the Crown’s written submissions is correctly stated as follows: A. Relevance 1.

A witness may testify as to statements made to that witness by someone else if those statements have relevance and if they are notrendered inadmissible by a rule of evidence. Reference: R v. P.R., [1990] O.J. No. 3418, at para 6. 2. Relevance is situational and depends not only on the ultimate issue in the case (e.g., identification), but also on the other factual issueswhich either of the litigants raises as relevant to the ultimate issue.

For example, the deceased's mental state may bear no direct relevanceto the ultimate issue of identification but it will nonetheless be relevant to that issue if it is relevant to another fact (e.g., motive) which isdirectly relevant to the ultimate issue of identification. Reference: R v. P.R., [1990] O.J. No. 3418, at paras 9-11. 3. The threshold for relevance is not high.

To determine whether an item of evidence is relevant, a judge must decide whether, as amatter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact moreprobable than it would be otherwise. Reference: R v. Candir, 2009 ONCA 915 , [2009] O.J. No. 5485 (Ont. C.A.), at paras 47-48; 4. Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part ofthe accused.

Evidence of a person's animus or motive to harm another may assist in proving the identity of the attacker and the state ofmind that accompanied the assault. Evidence of the victim's state of mind may constitute a link in a chain of reasoning that could lead atrier of fact to conclude that an accused bore the victim some animus or had a motive to harm the victim. Reference: R v. Candir, 2009 ONCA 915 , [2009] O.J. No. 5485 (C.A.), at para 51, 52 R v. Moo, [2009] O.J. No. 4706 (C.A.), at para 98;

R v. P.R., supra, at paras 12-14; 5. Evidence that shows or tends to show, directly or by inference, that the accused had a motive to harm the victim is relevant to provethat the accused in fact had such a motive. Since evidence of motive is circumstantial evidence that may help to establish not only theidentity of the person who committed an offence, but also the state of mind with which the offence was committed, evidence of motive ismaterial. Reference: R v. Candir, 2009 ONCA 915 , [2009] O.J. No. 5485 (C.A.), at para 72, 74 R v. Polimac, 2010 ONCA 346 , [2010] O.J. No. 1983 (C.A.), at para 65 6.

In prosecutions involving violence occurring in the context of a close personal relationship, evidence is frequently admitted toelucidate the nature of the relationship between the accused and the victim. This evidence, which often discloses misconduct other thanthat charged, not only demonstrates the nature of the relationship between the parties, but also may afford evidence of motive and animusrelevant to establish the identity of the deceased's killer and the state of mind with which the killing was done. Reference: R v. Moo, supra, at para 98 B. Admissibility 8.

The prosecution may tender explicit statements of the declarant's state of mind or statements that give rise to an inference about thedeclarant's state of mind. The former are hearsay and require an exception to establish their admissibility. The latter are not hearsay andare admitted as circumstantial evidence from which the declarant's state of mind may be inferred: P. (R.) at p. 341. Whether admitted byexception or as beyond the exclusionary reach of the hearsay rule, the statements should be contemporaneous with the state of mind ofwhich they are evidence. Reference: R v. Candir, 2009 ONCA 915 , [2009] O.J.

No. 5485 (Ont. C.A.), at para 56 Starting Position 9. It is important that the trial judge start from the premise that hearsay statements are presumptively inadmissible and then search forindicia of trustworthiness sufficient to displace the general exclusionary rule. Otherwise, the trial judge risks falling into error byreversing the onus. Reference: R v. Blackman, 2008 SCC 37 , [2008] S.C.J. No. 38, at para 38 10.

The focus of the admissibility inquiry in all cases must be on the particular dangers arising from the hearsay nature of the evidence.The relevant factors to be considered on an admissibility inquiry cannot invariably be categorized as relating either to threshold orultimate reliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature ofthe statement and the available means, if any, of overcoming them. Reference: R v. Blackman, supra, at paras 42, 29, citing Khelawon, [2006] 2. S.C.R. 787, at para 55.

Paths to Establishing Threshold Reliability 11. Threshold reliability is usually addressed in one of two different ways: • One way is to show that there is no real concern about the truth of the hearsay statement because of the circumstances inwhich the statement came about. • The second way of satisfying the reliability requirement is to show that no real concern arises from the fact that thestatement is offered in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested duringthe proceedings. The approaches are not mutually exclusive. Reference: R v.

Blackman, supra, at para 35; R v. J.M., 2010, ONCA 117, at para 53; Scope of Inquiry: Corroboration or Confirmation Beyond the Statement 12. Relevant factors to be considered on the admissibility inquiry are no longer categorized as going either to threshold or ultimatereliability. Rather, a functional approach is required. Reference: R v. Blackman, supra, at para 54

13. In appropriate circumstances, a corroborative item of evidence can be considered in assessing the threshold reliability of a statement.Consider, on the one hand, the hearsay statement of a complainant who asserts that she was repeatedly stabbed but has no injury to showin support. The lack of corroborative evidence would seriously undermine the trustworthiness of the statement and, indeed, would likelybe fatal to its admissibility. On the other hand, an item of corroborative evidence can also substantiate the trustworthiness of a statement.Recall the semen stain in R. v. Khan, (SCC), [1990] 2 S.C.R. 531.

Where an item of evidence goes to the trustworthinessof the statement, it should no longer be excluded simply on the basis that it is corroborative in nature. Reference: R v. Blackman, supra, at para 55 14. It is not always necessary to determine admissibility by looking beyond the “four corners” of the statement. Khelawon did notbroaden the scope of the admissibility inquiry; it merely refocused it. The admissibility voir dire must remain focused on the hearsayevidence in question. It is not intended, and cannot be allowed by trial judges, to become a full trial on the merits. Reference: R v.

Blackman, supra, at paras 54 and 57; Factors Relevant to Threshold Reliability 15. The principled approach to the exceptional admission of hearsay disavows any closed list of factors to be applied to determinewhether the circumstances in which a hearsay statement came about meet the reliability requirement in an individual case. Reference: R v. Moo, supra, at para 93 16. The inquiry into reliability is at once functional and case-specific, not formulaic or subject to a priori rules.

In each case, the focus ofthe inquiry into reliability is on the particular dangers raised by the hearsay evidence tendered for reception, and on those attributes orcircumstances relied upon by the proponent to overcome those dangers: Khelawon, at para. 93; R. v. Blackman, 2008 SCC 37 ,[2008] 2 S.C.R. 298, at para. 54. Reference: R v. Moo, supra, at para 94. R v. J.M., supra, at para 54. 17.

As in Moo, Faulkner and J.M., the hearsay evidence must be sufficiently reliable to overcome the dangers associated from theinability to test the evidence, since the declarant is not available for cross-examination before the trier of fact. Reference: R v. Moo, supra, at para 92. 18. In R v.

J.M. the Court of Appeal offered a non-exhaustive list of potentially relevant circumstances to consider, including: i. the timing of the statement in relation to the event reported; ii. the absence of a motive to lie on the part of the declarant; iii. the presence or absence of leading questions or other forms of prompting; iv. the nature of the event reported; v. the likelihood of the declarant’s knowledge of the event, apart from its occurrence; and vi. confirmation of the event reported by physical evidence. Reference: R v. J.M., supra, at para 54. 19.

Additional factors may include: • Whether the statement is proximate in time. Reference: R v. Polimac, 2010 ONCA 346 , [2010] O.J. No. 1983, para 62 R v. J.M. 2010 ONCA 117, at para 53; • Whether the declarant made the statement in circumstances where there would be no reason for the declarant to lie. Reference: R v. P.R., supra, at para 7 R v. Polimac, 2010 ONCA 346 , [2010] O.J. No. 1983, para 62 • Absence of evidence of a motive to lie or evidence that declarant had no motive to lie.

Reference: R v. Polimac, 2010 ONCA 346 , [2010] O.J. No. 1983, para 80 R v. J.M. 2010 ONCA 117, at para 53; R v. Blackman, supra, at paras 39-46; • Independent corroboration/confirmation Reference: R v. Faulkner, 2010 ONCA 289, at para 28 R v. J.M. 2010 ONCA 117, at para 53; • Context and tone of the statement Reference: R v. Faulkner, 2010 ONCA 289, at para 14 R v. Polimac, 2010 ONCA 346 , [2010] O.J. No. 1983, para 62 20. One factor which is not relevant to an assessment of admissibility is the quality of the evidence offered by the recipient of a hearsaystatement. Reference: R v.

Blackman, supra, at para 47-52 29. Before considering admissibility pursuant to the “principled exception” to the hearsay rule, it is beneficial to first consider anavailable “traditional exception”, which is applicable to the evidence of Wendy Thompson and Margaret Kelly regarding commentsmade by Mrs. O’Neill in the midst of the difficult circumstances of April 27, 2009. Reference: R v. Starr 2000 SCC 40, para 202-207, 211-213; Res Gestae 30. Human utterance is both a fact and a means of communication.

Human action may be so interwoven with words that the significanceof the action cannot be understood without the correlative words, and disassociation of the words from the action would impede thediscovery of truth. Reference: Sopinka, Lederman, Bryant. “The Law of Evidence in Canada” (2ed) 1999; p.265, citing Teper v. R. [1952] 2 All E.R.447 (H.L.), 31. There are two basic situations in which the courts have invoked the res gestae doctrine to admit utterances offered for their truth.They may be categorized as: • Declarations accompanying and explaining relevant acts; and • Spontaneous exclamations.

Reference: Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999); p251. Declarations accompanying and explaining relevant acts 32. Where

an act done is evidence, a declaration accompanying that act may well be evidence if it reflects light upon or qualifies the act.The words must be contemporaneously uttered. Put another way, the declaration must closely accompany the act or transactions and beuttered at the time or shortly before or after. The comments need not be instantaneous. Rather, the issue is whether the words were

uttered in circumstances where there was no danger of concoction. Reference: Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999); p266-268, 271. R v. Clark (1983), (ON CA), 7 C.C.C. (3d) 46 (Ont.C.A.); leave to appeal refused (1983), 39 C.R. (3d) xxvii. C. Probative versus Prejudicial 47. A trial judge has a residual discretion to exclude otherwise admissible evidence, including admissible hearsay, where its impact onthe trial process (cost) exceeds its value to the correct disposal of the litigation at hand (benefit).

The prejudicial effect of the evidencemay overwhelm its probative value. Introduction of the evidence may involve a significant expenditure in time, not commensurate withthe value of the evidence. The evidence may mislead because its effect on a trier of fact, especially a jury, may be disproportionate to itsreliability: R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R.787, at para. 3; R. v. Humaid (2006), (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 57. Reference: R v. Candir, 2009 ONCA 915 , [2009] O.J. No. 5485 (Ont. C.A.), at para 59 48. In P.R., Mr.

Justice Doherty (as he then was) adopted the following approach: In determining where the balances lies in this case, I adopt the approach detailed by Mr. Marc Rosenberg in his most enlightening paper,"Rationalizing the Rules of Evidence: The Supreme Court Revolution", delivered in November, 1989, to the Ontario Criminal LawyersAssociation annual convention. Mr. Rosenberg writes at p. 49: ... the steps which the trial judge must go through are as follows: 1.

The judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case includingthe credibility of witnesses. 2.

The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue [or Iadd because of the risk that the jury may use the evidence improperly to prove a fact in issue]. 3.The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which theevidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectivenessof any limiting instructions. Reference: R v. P.R., supra; 12.

While agreeing with the law as set out above, the Defence argued some additional points. It is argued that there are specialfactors to be taken into account in this case because of the capacity issues relating to the declarant, Mary O'Neill as well as theinconsistencies between the evidence of Wendy Thompson and Margaret Kelly.

The Crown argues that the Blackman case, supra,stands for the proposition that where the recipient of the hearsay is available for cross-examination that the credibility andtrustworthiness of the evidence should be left to the trier of fact to assess at the end of the trial and not dealt with at the stage ofdetermining threshold reliability. The Defence asks the Court, however, to consider the quality of the hearsay evidence in light of Mrs.O'Neill's cognitive challenges and the dissimilarities between Ms. Thompson’s and Ms. Kelly’s versions of what Mrs. O'Neill told them. 13.

The Defence urges the Court to look to the Khelawon case, supra, for guidance, and to apply a qualitative assessment to theevidence in this case at the threshold reliability stage. In that case the Court found that all relevant factors should be considered duringthe admissibility inquiry, including, in appropriate cases, the presence of supporting or contradictory evidence. The absence of anyopportunity to cross-examine the declarant is also a significant factor in determining admissibility, since the hearsay evidence cannot betested in the usual way.

There must be a sufficient substitute basis for testing the evidence. The Defence argues that due to Mrs.O'Neill's cognitive issues and the variety of inferences that may be drawn from her statements that those hearsay statements should not beadmitted in the absence of a contemporaneous opportunity to cross-examine. 14. The Defence argues that: “…in Khelawon the circumstances of the hearsay statements in that case raised a number of serious issues such that it would beimpossible to say that the evidence was unlikely to change under cross-examination. The alleged victim in that case was elderly andfrail.

His mental capacity was in issue and the medical records pointed to dementia. The evidence disclosed that the injuries could havebeen caused by a fall rather than an assault. The recipient had an obvious motive to discredit the accused. Finally, the alleged victim hadproblems with the accused as well. The Court found that in those circumstances the unavailability of the declarant for cross-examinationposed significant limitations on the accused’s ability to test the evidence, and, in turn, on the trier of fact’s ability to properly assess itsworth.” 15.

While the Defence argues that “there is simply no suitable method for testing the evidence of Mrs. O'Neill as she does nothave the capacity to testify at trial” this ignores the line of authorities that have allowed hearsay evidence to be admitted where thedeclarant is deceased. The fact that the declarant is unavailable to be cross-examined is only one factor to be considered and is notdeterminative of the issue.

16. Similarly, the cognitive challenges facing Mary O'Neill as a result of her Alzheimer's is but one factor to consider in determining whether the test for threshold reliability has been met for each of the statements. The Court must look to and balance a variety of all relevant factors (including Mrs. O'Neill's cognitive issues) in deciding this Application. Those factors will be reviewed in detail below following a review of the evidence heard from the witnesses in this case who have testified so far. THE EVIDENCE 17.

In April of 2009, the complainant, Mary O'Neill was living at 112 McFeeters Crescent in Bowmanville. By the time of trial Mrs. O'Neill was 83 years old (being born on March 3, 1927) and suffering from Alzheimer's disease. Prior to his death in 2008, she had lived with her husband Tom O’Neill at 112 McFeeters Crescent. At some point their adult grandson, the Defendant, Sean Asling, had moved in with both of them. By April of 2009, Sean Asling's young 4 to 5 year old daughter, Aurora was also living there with Mary O'Neill and Sean Asling from time to time. 18.

The witnesses Wendy Thompson and Christopher Kelly (who were common-law partners) and Christopher Kelly's mother Margaret Kelly lived at 116 McFeeters Crescent which was the house next door to the one that Mary O'Neill and Sean Asling lived in. Exhibit 2 is a photograph showing both houses. The witnesses testified about the abusive language that they had allegedly heard Sean Asling use towards his grandmother, Mary O'Neill in the months preceding the alleged offences. They also testified about the events of April 27, 2009, when it is alleged that Sean Asling assaulted his grandmother. 19.

Margaret Kelly had lived at 116 McFeeters Crescent for twenty years. She knew her next door neighbours Mary O’Neill and Tom O’Neill (before he passed away in the summer or fall of 2008). Margaret Kelly felt that her relationship with Mary O'Neill was one of being “just neighbours”. She would see Mary O'Neill around in the garden or as they were going out. They didn’t really socialize. 20. From the time that Tom O’Neill died, Wendy Thompson (who also lived at 116 McFeeters Crescent with Margaret Kelly's son Christopher) saw her neighbour Mary O'Neill approximately three times a week at Mary O'Neill's house.

They would have tea and “little chats”. It was very seldom, however, that Mary O'Neill attended at Wendy Thompson's house. Wendy Thompson described her relationship with Mary O'Neill as “pretty good friends”. Mary O'Neill's Health Issues 21 . Paul Asling is the father of the Defendant, Sean Asling, and the son-in-law of Mary O'Neill (his wife Katherine Asling being Mary O'Neill's daughter and the Power of Attorney for her). At the time of the trial in July of 2010, Mary O'Neill was living with them at their home in Blackstock and had been living with them for approximately 1 year.

Prior to that the Defendant, Sean Asling, was her primary caregiver, living with her in her home. At the time of the trial Sean Asling was still living in Mary O'Neill's home at 112 McFeeters Crescent in Bowmanville and Paul Asling and his wife were assisting Mrs. O'Neill financially. 22 . Paul Asling was called to give evidence about the deterioration in Mrs. O'Neill’s cognitive functioning due to Alzheimer's disease. This was to assist the Court in determining whether she had the capacity to testify. Based on his evidence the Court concluded that Mary O'Neill did not have the capacity to testify.

It was agreed that Paul Asling's evidence would apply to the trial as being relevant to reliability issues with respect to Mary O’Neill’s statements. 23 . Paul Asling estimated that Mary O'Neill had started to display symptoms of Alzheimer's over possibly five years. He was not sure when she had been diagnosed with Alzheimer's but believes it was before she came to live with them. He indicated that it had been a gradual process with ongoing deterioration over time. Her condition had worsened over the last couple of years. He testified that the condition that Mrs.

O'Neill was in as of the trial would have been the same for probably one or two years prior, with her condition diminishing from that time to the court date. Paul Asling was of the view that Mary O'Neill's condition and ability to recollect things had worsened or deteriorated by the time of trial (compared to the time of the alleged assaults), but indicated that it would be difficult to quantify to what extent. 24 .

Paul Asling testified that Mary O'Neill “has a hard time with dates, time of day, day of the week, year, names, just about anything that entails the use of memory” and also “understanding of her own personal health issues”. She would sometimes call Paul Asling by his son’s name, Sean. She is not capable of providing for her own nutrition or meals, managing her daily affairs, financial or otherwise and that dressing herself “requires guidance”. She is not capable of making a decision about the sale of her home at 112 McFeeters Crescent. Paul Asling described that Mrs.

O'Neill might place herself in danger by not being able to foresee the consequences of her actions. He gave an example of her walking out on the road when he was parking the car for court. If not living with her daughter and son-in-law, she would have to live in a full-care facility. 25 . Paul Asling described that Mary O'Neill was confused about why she was going to court. She would need things re-explained to her in a relatively short time frame, perhaps within 10 to 15 minutes. He indicated that she was also like that in April of 2009.

Paul Asling testified that based on the necessity of repeating things to her that he believes that Mary O'Neill does not retain information. He testified that she would repeatedly ask the same question possibly 10 to 15 times. 26 . Paul Asling was also of the view that Mary O'Neill may be influenced or confused by what people tell her or say to her. In his view this was true in April 2009 as well as at the time of trial.

The police, the Crown’s Office and the Victim Services office had tried to arrange a meeting with Mary O'Neill in preparation for the trial, however, Paul Asling had a concern about her being interviewed without him being present (which he was told wasn’t allowed). He did not want her interviewed by the police in his absence because he believed that she was vulnerable to coercion and would adopt as the truth things that were said to her. When asked to provide examples

of this, Paul Asling testified about having to suggest that Mrs. O'Neill do things like eat breakfast or walk the dog, or go to Hillsdale Manor (a senior’s facility) and then she would do them. In Re-Examination he testified that if you suggested something to Mrs. O'Neill such as going out to Hillsdale Manor, 5 minutes later she would not remember where they were going. She might remember what was suggested to her but more likely not. 27 . Paul Asling testified that Mrs. O'Neill's questions don’t reference her current reality. Mrs.

O'Neill is aware of her surroundings but could not remember if she had done something (like eating breakfast), so she could not remember a routine to follow or be aware of the time of day. She loves her dog Bella very much and would become extremely angry or frustrated if she couldn’t find the dog. Due to her confusion about where the dog was she would accuse people of things that were not true such as taking the dog away. 28 . Paul Asling had shown Mary O'Neill the subpoena for court and asked her about the events of April 27, 2009 but she did not recollect what it was about.

She had not discussed the incident of April 27, 2009 with him at all and had no recall about it. She believed that she was in court because she had done something wrong. She did not understand why she was not allowed to see her grandson, Sean Asling, and was confused when the charges were explained to her. Mary O'Neill could not remember Det. Findlay (who had interviewed her on April 27, 2009) when she was introduced to him at the courthouse on the first day of trial in July of 2010. 29 .

Paul Asling testified that in April of 2009 he was aware of the frustration from both Sean Asling and Mary O'Neill regarding “the situation”. Sean Asling would tell his father that it was “really, really difficult”. They would try to help him over the phone or by going over to the house to support him in his efforts to be the primary caregiver for Mrs. O'Neill. 30 . Paul Asling believes that he had last seen Mary O'Neill possibly the weekend or the Tuesday prior to the alleged assaults on Mary O'Neill on April 27, 2009 (he went by on most Weekends and Tuesdays).

At that time he did not see any of the injuries on her hands that are shown in the photographs filed as Exhibits 1.1 and 1.2 in the trial. She had not voiced any complaint about injuries to her hands or arms at that time either. He did see those injuries on her when he picked her up from the police station after they interviewed Mrs. O'Neill on April 27, 2009. He confirmed that the photographs accurately depicted the injuries he saw on Mrs. O'Neill that day. He expressed the opinion that Mary O'Neill bruises extremely easily.

For example, from the prick of a pin by a nurse for the taking of a blood sample her entire left forearm was black. That bruising would last about a week. Mary O'Neill told Det. Findlay during the videotaped interview that from being grabbed around the wrist area the bruising would spread down her hand and look “ugly and worse”. Prior Discreditable Conduct – The Alleged Verbal Abuse 31 . The Court heard evidence about several prior instances of alleged verbal abuse of Mary O'Neill by her grandson, Sean Asling.

That evidence will be summarized here, but is not being relied upon by the Court with respect to the admissibility of the Hearsay evidence being tendered. It remains to be argued in this trial what proper use, if any, can be made of this evidence. 32 . Wendy Thompson believed that Mary O'Neill's relationship with her grandson, Sean Asling was “fine” but then some time following the death of Tom O’Neill things started to change. Ms. Thompson heard “a lot of yelling was always going on”. There had been some yelling when Tom O’Neill was still alive, but it seemed to escalate once Mr. O’Neill passed away.

Wendy Thompson heard this yelling coming from the two kitchen windows at 112 McFeeters Crescent which was right near the deck of Wendy Thompson's home. At first the yelling was about once a week but then it started to change and became more often and louder. It would be maybe three times a week (she had previously told the police it was once a week). Ms. Thompson believed that there was more yelling than quiet days, unless Sean Asling was away for a few days. Wendy Thompson would be in her kitchen or on her driveway when she would hear him yelling.

Sometimes Sean Asling would go on for hours and then it would just go very quiet. She testified that she could hear clearly what was being said even if the windows at both 112 and 116 McFeeters Crescent were closed. Sometimes the windows were open. She acknowledged in Cross-Examination that she had not told the police that the windows were open at any time when she heard the yelling. 33 . One time Wendy Thompson heard Sean Asling saying, “I fucking can't stand you, get the fuck away from me. My fucking daughter can even do that.” Ms. Thompson believed that Mr.

Asling would degrade Mary O'Neill in front of his daughter, Aurora. Then he would get to the point where he would start yelling, “Fucking say it, you want to go to the fucking nursing home, fucking say it.” He would repeat it over and over again and try to force his grandmother to say something. Wendy Thompson testified that the yelling was always about pretty much the same thing. It was always, “Just say it, you want to go to the fucking nursing home”. Wendy Thompson would never hear Mary O'Neill say anything in response other than once Wendy Thompson heard a “Yip”. 34 .

Margaret Kelly also testified about the alleged verbal abuse. She told the Court that she had heard Sean Asling swearing at Mary O'Neill two or three times. She knew his voice, having heard it several times. The first time, in about the spring of 2009, Ms. Kelly was out on her deck to let her dogs out. Mrs. O'Neill's kitchen window was open. She heard Sean Asling yelling at his grandmother saying, “I’ll put you in a fucking nursing home.” There was no response. Then Ms. Kelly went back inside of her house and she could still hear the shouting. 35 . On Easter Sunday of 2009 Margaret Kelly also heard Mr.

Asling yelling at his grandmother again. She could see part of him through the kitchen window and she saw him turn and say, “Why couldn’t you get my daughter a fucking Easter gift?” She did not hear any response. 36 . Margaret Kelly told the Court that she heard yelling from 112 McFeeters Crescent many times, sometimes as much as two to four times a week. She believed that it started soon after Tom O’Neill passed away (it had happened only once before that).

She described that “it started off very low and then it ‘crescendo’d’ to a higher pitch” and explained that this meant eventually over time the yelling was louder as it got closer to April 27, 2009. It wasn’t every day and would go on for a few days with gaps in between. Sometimes the yelling would go on for half an hour. Ms. Kelly agreed that on the days when she could not make out the words she knew that it was Sean Asling who was yelling but didn’t know who he was yelling at. She had never heard him yell at his daughter. Ms.

Kelly agreed that she did not include this information about the yelling that she overheard in either her videotaped statement given to

the police in April of 2009 or the written statement provided in December 2009 (after the original statement apparently went missing). The police did not ask her about any prior verbal abuse. Margaret Kelly was upset by the yelling and thought it was verbally abusive and wrong. It did not make her think very highly of Sean Asling. Margaret Kelly testified that since Mary O'Neill stopped living in the home she has never heard any yelling again (including no yelling by Sean Asling towards his daughter, Aurora). 37 .

Margaret Kelly agreed that all of them had discussed the yelling that was overheard because of their concern. When Margaret Kelly was inside her home she could still hear the shouting but could not make out the words spoken. 38 . After hearing the yelling Wendy Thompson didn’t speak to Sean Asling because she didn’t think too much of him and was disgusted. She did not speak to him about the yelling that she had heard. Ms. Thompson also did not make any notes of what she had heard Sean Asling yelling. A few times Ms.

Thompson told Mary O'Neill that she didn’t like how Sean Asling was speaking to her and that he shouldn’t be yelling at her. 39 . Christopher Kelly testified that he also heard Sean Asling yelling at his grandmother, Mary O'Neill. The sounds appeared to be coming from the kitchen at 112 McFeeters Crescent. He knew Sean Asling's voice because he had known him since he had moved in to live with both of his grandparents and had lived there for a number of years. Mr. Kelly could not recall hearing any yelling when Tom O’Neill was still alive. Mr.

Kelly heard yelling a couple of times a week and over time the frequency of it increased. Sean Asling sounded loud and very upset when he yelled at Mrs. O'Neill. A couple of times Christopher Kelly could hear the words that Sean Asling was saying. Once Mr. Kelly heard Mr. Asling tell his grandmother, “I’ll put you in a fucking home”. Another time he heard him tell her, “Do you want to live in a fucking home?” Mr. Kelly did not hear any responses. 40 . Christopher Kelly felt that Sean Asling's conduct was improper and it made him upset because he didn’t think that Mrs. O'Neill should be treated that way. Once Mr.

Kelly confronted Sean Asling about what the yelling and screaming was about. Mr. Asling said, “Sometimes things have to be said” and then he walked away. Mr. Kelly could not say when this conversation had taken place but knew it was some time after Tom O’Neill had passed away and before the events of April 27, 2009. 41 . Christopher Kelly never spoke to Mary O'Neill about the yelling and never observed any injuries on her. He was not present for the events that transpired on April 27, 2009. Mr. Kelly told the police that he believed that Mary O'Neill was being mentally abused by Sean Asling. 42 .

Over the span of a few months Wendy Thompson's visits with Mary O'Neill started to dwindle down and she was lucky if she saw Mary O'Neill once a week. On one occasion Wendy Thompson went over to the house to investigate what was going on. That was when the yelling had gone on for a “good couple of hours” and was loud and constant. Wendy Thompson started getting frightened because the yelling stopped as fast as it had started and it got very quiet, so she was worried for Mrs. O'Neill. She knew that Mary O'Neill was home.

Wendy Thompson went over and found the garage door open but no one was in the garage so she went to the service door at the back of garage and knocked. The door was open so she went in through the laundry room, up three steps and knocked on the doorframe. There was no response so she went up three more stairs into the kitchen and met Sean Asling's daughter Aurora. At that point Sean Asling came down from upstairs and he was very quiet. Wendy Thompson asked if Mary O'Neill was there and he got her to come from her bedroom.

Wendy Thompson sat with Mary O'Neill in the kitchen for a few minutes and asked her if she was all right. She asked if Mr. Asling was hurting her. Mary O'Neill said, “I'm fine dear, everything’s fine. 43 . About two months prior to April 27, 2009 Wendy Thompson was concerned because there had been a lot of yelling going on again and then a day or two went by and it was “terribly quiet” (in her statement to the police she said that there was yelling and when Sean Asling left she went over, without mentioning that a day or two had gone by).

Wendy Thompson first phoned Mary O'Neill's house to make sure she was all right. Then she went over and took Mary O'Neill some pie. They were having the pie and a cup of tea when Sean Asling came in through the back patio door with his daughter. Mary O'Neill got nervous and ran up to put her dog away. Aurora then looked at Wendy Thompson and said, “You’re not supposed to be here, you’re nosey.” Wendy Thompson remained there for only a few more minutes. After she left the house and the door was closed, she heard Sean Asling say to Mary O'Neill, “You’re not supposed to talk to her.” 44 .

Wendy Thompson and Margaret Kelly called the police on one occasion approximately six weeks before April 27, 2009 because of the yelling, but the police never came to speak with them about it. They both observed that the police did attend at Mary O'Neill's residence, but they have no idea of what transpired there. 45 . Wendy Thompson and Margaret Kelly never observed any injuries on Mary O'Neill before April 27, 2009. Margaret Kelly testified that if she had she would have called the police sooner. 46 .

After that incident Wendy Thompson only saw Mary O'Neill approximately twice over the couple of months leading up to April 27, 2009. During that same time frame the yelling that she heard from 112 McFeeters Crescent became more frequent and louder. The Events of April 27, 2009 47 . When events started to unfold on April 27, 2009 Wendy Thompson was the only one home at her house at 116 McFeeters Crescent. Margaret Kelly had gone out for a bit that morning and Christopher Kelly was not at home. At approximately 11:30 a.m. Ms.

Thompson was working outside sweeping the interlocking bricks when she decided to go and get some water from the garage. The garage door was opened. When she turned around she saw Mary O'Neill standing on the retaining wall beside the driveway. Wendy Thompson was not expecting to see Mary O'Neill because she had not spoken to her in about a month. She said, “Hi Mary” thinking that Mrs. O'Neill had just come for a visit. 48 . Ms. Thompson then saw that Mary O'Neill was shaking and crying. Mrs.

O'Neill jumped down off of the top level of the retaining wall (about 2 ½ feet tall) and ran into the garage saying, “Help me, Sean’s going to kill me.” It is believed that Mary O'Neill

injured her foot by jumping that distance (although that was not noticed until later on). Ms. Thompson had never seen Mary O'Neill upset like this before and took her into the garage. She closed up all of the doors and locked them because she (Wendy Thompson) was scared due to what Mary O'Neill had said and how upset she was. 49 . Wendy Thompson then took Mary O'Neill downstairs. There was a window in the basement and Mrs. O'Neill said, “Sean’s very sneaky, he’ll look in the window and see me here. Can you close the curtains?” So Ms. Thompson closed the curtains.

Sean Asling did in fact come over to the house about 20 minutes later. 50 . Wendy Thompson asked Mrs. O'Neill, “Did Sean hurt you?” Mary O'Neill just shrugged her shoulders and “wouldn’t exactly say”. Then Mary O'Neill said, “I'm scared of him” but didn’t say why. She told Wendy Thompson that she wanted Sean Asling out of her house at 112 McFeeters Crescent. 51 . When Sean Asling came to the house 20 minutes later he rang the front doorbell. Mary O'Neill said, “That will be Sean”. Wendy Thompson jumped up and went to check and could see Sean Asling's silhouette through a side panel by the front door.

She didn’t answer the door. Mary O'Neill was still downstairs and didn’t get up. Mary O'Neill started crying again and Ms. Thompson was trying to talk to her, but Mary O'Neill “wouldn’t say”. 52 . Sometime after Sean Asling had come to her front door, Wendy Thompson's phone rang and the call display said, “Tom O’Neill”. This made Wendy Thompson believe it was Sean Asling calling from 112 McFeeters Crescent so she did not answer the phone. 53 . According to Wendy Thompson Mary O'Neill remained with Wendy Thompson for “a good hour and a half” during this first visit.

Margaret Kelly also testified that they were with Mary O'Neill for about 1½ hours and that during that time Mrs. O'Neill did not appear forgetful or ask any questions. 54 . Wendy Thompson testified that Mrs. O'Neill did not say anything else to her about what had been going on. At some point during this first visit Margaret Kelly came home and joined them. Ms. Kelly believes that she came home around 11:45 a.m. (which would be approximately 15 minutes after Wendy Thompson estimates that Mary O'Neill first came over).

The last time Margaret Kelly had seen Mary O'Neill was at Tom O’Neill’s funeral, so she was surprised to see Mrs. O'Neill there. She had not heard any yelling by Sean Asling earlier that day. 55 . Ms. Kelly said, “Hello, Mary, it’s nice to see you” and Mrs. O'Neill started to cry. Mrs. O'Neill knew who Margaret Kelly was right away as soon as she saw her and knew her name. Ms. Kelly didn’t have any concern about Mary O'Neill's knowledge of who she was. Margaret Kelly asked Mary O'Neill why she was crying and Mrs. O'Neill said that Sean Asling was mean to her and used bad words. 56 .

Wendy Thompson and Margaret Kelly noticed markings on Mary O'Neill, but they could not see all of the injuries because the sleeves of her sweater were covering them. Wendy Thompson described the marks as follows: “she was bruised up really good on her right hand and arm, up her forearm. Her left hand was also bruised and the arm.” Mary O'Neill was wearing a sweater with long sleeves that came half way down her hand. Wendy Thompson only noticed the bruising when Mrs. O'Neill went to pick up her cup of tea and the sweater, which was a bit bigger, got pulled back up her arm. That is when Ms.

Thompson got a good look at part of the injury on her right arm. Due to the sweater she could only see the bruising injuries from as high as about 1 inch above the right wrist and then down to just above the knuckles. She also saw bruising on Mrs. O'Neill’s left hand and arm, but saw the right arm more clearly as she was picking up her tea. 57 . Margaret Kelly testified similarly, that when Mrs. O'Neill moved her right hand forward her sleeve came up slightly and she noticed that Mrs. O'Neill had a bruise. Ms. Kelly noticed bruise markings on Mary O'Neill's left arm from the forefinger and her thumb and up.

She also saw a mark on the right side of her face at her temple. Margaret Kelly was sitting on the right side of Mary O'Neill at this time so may well have had a better vantage point of this side of Mrs. O'Neill's face. 58 . Injuries to Mary O'Neill are shown in the photographs marked as exhibits during the trial. They were taken by Durham Regional Police Service Scenes of Crime Officer, P.C. Kevin Henderson, at the Bowmanville Detachment on April 27, 2009 at 5:50 p.m. (which was several hours after Mrs. O'Neill first attended at her neighbours’ residence).

Wendy Thompson and Margaret Kelly both identified various photographs as confirming the injuries that they had observed on Mary O'Neill that day. 59 . Wendy Thompson testified that during the first visit she asked Mrs. O'Neill about her injuries and asked if Sean Asling had caused them, but she wouldn’t respond and did not offer any explanation about how those marks got there. At another point in her evidence Ms.

Thompson testified that she did not ask about the marks on Mary O'Neill but believed it was Sean Asling who had caused the injuries because of all of the yelling and the fact that nobody else went to visit Mary at her home. Mary O'Neill had said she was frightened that if she went home right away that her grandson would see that she had been crying and talking to them. That’s why she had stayed longer until she was more calmed down. 60 . Ms.

Thompson testified differently from Margaret Kelly about the timing of when Mary O'Neill explained how she was injured (indicating it was not until the second time that she came to their home that Mrs. O'Neill said anything about it). In contrast, Margaret Kelly testified that the first time that she saw the injury on Mrs. O'Neill's right hand (during the first visit) she asked her what had happened. Mary O'Neill pushed her sleeve up further so that Margaret Kelly saw the bruising from the knuckles going towards the elbow, and said that “Sean” had done it. Margaret Kelly testified that Mrs.

O'Neill described it in her own words and not because someone suggested it to her. Mary O'Neill also demonstrated how Sean Asling had injured her arm by twisting it with both hands (twisting back and forth moving each hand opposite to the other several times). Ms. Kelly testified that, “we used to call it Chinese torture”. It should be noted that this gesture was different to that shown by Mary O'Neill to Det. Findlay later that day (at approximately 5:30 p.m. on the videotape) when she demonstrated a grabbing and squeezing motion using only one hand on the officer’s arm.

This was in the course of explaining how the injuries to her right arm and hand were caused. 61 . Margaret Kelly also asked Mrs. O'Neill about the injuries on her left arm and hand. Margaret Kelly testified that Mary O'Neill

said, “Sean did it. He did it by pulling my finger back and my thumb back.” This explanation was never offered to Det. Findlay in the interview later that day. By then Mrs. O'Neill was having difficulty remembering and said that she did not know how those injuries to her left hand and arm were caused, she could only remember that he had caused the injury to her right hand, “the day before yesterday or something”. 62 . Once Wendy Thompson saw the marks she told Mary O'Neill, “I will phone the police”, but Mrs. O'Neill said, “No” because she thought she was in trouble. Wendy Thompson tried to tell Mrs.

O'Neill, “You’re not in trouble, Mary. If Sean has done this to you, he’s in trouble.” Margaret Kelly testified that she also told Mary O'Neill that they should call the police but Mrs. O'Neill wouldn’t do it because “Sean would get mad at her”. Wendy Thompson testified that she believed that Sean Asling was verbally abusive towards Mrs. O'Neill and that she and Ms. Kelly explained to her that if Sean Asling had caused the injuries that it was abusive and that she needed help.

Margaret Kelly testified that she didn’t use Sean Asling's name, but said that Mary O'Neill should call the police because “it’s classed as senior abuse”. When Margaret Kelly said she was going to call the police Mary O'Neill asked her not to. 63 . After 1½ hours their conversation was interrupted by Sean Asling telephoning again. Since Mary O'Neill was calmer by this point Wendy Thompson testified that she answered the phone this time. Mr.

Asling was calm on the phone and said, “Grandma has to come home for her lunch and medication.” Margaret Kelly testified that Mary O'Neill asked, “Was that Sean?” and Wendy Thompson responded, “Yes, you have to go home for your lunch because you need your medication”. 64 . Wendy Thompson testified that in spite of the marks on Mary O'Neill, they let Mary O'Neill go home because she wanted to go home and refused to stay or to let them call the police. Margaret Kelly testified, however, that when Sean Asling phoned for his grandmother to go home for her lunch and medication that she didn’t want to go home.

Margaret Kelly did not tell the police this. Mary O'Neill said she had already had lunch at their place, but Margaret Kelly told her it was only a snack, not lunch. 65 . When Mary O'Neill stood up to go home Margaret Kelly noticed that Mary O'Neill had some bruising on the left side of her forehead (as seen in Exhibits 3.2 and 5.3). She also noticed a bump because Mary O'Neill drew her attention to it by rubbing her head and saying, “I think I have a bump”. Margaret Kelly testified that Mary O'Neill never explained how the injuries to her head were caused. Ms.

Kelly was challenged in Cross-Examination and agreed that in her December 2009 statement she did not tell the police about seeing the injury to the left side of Mrs. O'Neill's head. It is clear, however, that Ms. Kelly documented some of the injuries that she observed by taking photographs of Mrs. O'Neill on April 27, 2009, and that they included one showing the injury to the left side of Mrs. O'Neill’s head (Exhibit 5.3). 66 . At some point before she went home for lunch photographs were taken of some of Mary O'Neill's injuries by Margaret Kelly.

Some of the injuries can be seen in the police photographs filed as Exhibits 3.1 to 3.8. Margaret Kelly testified that they show a lump and bruising on the forehead close to the hairline. They also show the right hand from the knuckles going up towards the elbow. Margaret Kelly testified that she took photographs of the injuries to Mary O'Neill's left arm (not the hand), right arm, right temple and forehead, but was only able to produce three photographs to the court when she was asked to bring them to court the day she testified on July 8, 2010.

She had deleted some pictures off of her camera in the meantime and had mistakenly deleted the one taken of Mrs. O'Neill's right arm. The photographs she took were marked as Exhibits 5.1 to 5.3. 67 . Wendy Thompson and Margaret Kelly had to help Mary O'Neill home because when she went to stand up she realized that she had hurt the bottom of her left foot, so she had trouble walking and was limping. As indicated earlier, the parties have agreed that it is likely that this happened when she jumped off of the retaining wall the first time she came over (because she was wearing only her carpet slippers).

Margaret Kelly never asked how Mrs. O'Neill had hurt her foot. Wendy Thompson gave evidence that Mary O'Neill refused to go to the hospital to have them look at her foot when they discussed it with her. Margaret Kelly testified that they let Mrs. O'Neill go home and didn’t call the police because before Sean Asling told her, she didn’t know that Mary O'Neill was on medication or what it was for. 68 . When they took Mrs. O'Neill back home they saw Sean Asling standing at the top of the stairs. Wendy Thompson described him as “very calm”. Margaret Kelly described him as “very silent”.

He was not yelling or exhibiting any signs of anger. He helped his grandmother up the steps into their living quarters. 69 . Margaret Kelly told Sean Asling that Mrs. O'Neill had hurt her foot and that they didn’t know what was wrong with it. She told him that if it wasn’t any better within one hour to give her a call and she would take Mary O'Neill to the hospital to get it checked out. Wendy Thompson testified that Sean Asling did not respond to this offer. Margaret Kelly testified that Mr. Asling just looked straight through her, staring and saying nothing.

After that he took over and the neighbours left right away. 70 . Wendy Thompson testified that as she and Margaret Kelly got back to their driveway she heard a yelp. It sounded like it was coming from the kitchen of 112 McFeeters Crescent. She did not hear anything else. Wendy Thompson initially told the police that she thought the yelp was because of the foot injury, but later had suspicions otherwise. 71 . Ms. Thompson testified that approximately 15 minutes after they had returned Mrs. O'Neill home, she was outside again when she turned around and saw Mary O'Neill running towards her across the lawn.

Mary O'Neill said, “Help me” so Wendy Thompson grabbed her and they ran into the house. Mary O'Neill was shaking and crying and “she was just totally right upset”. 72 . Margaret Kelly also testified that less than half an hour after they had taken Mary O'Neill home that Wendy Thompson shouted up to her to go and take their dogs in. As she went to do that she saw that Mary O'Neill was back again and standing inside the door of their home. She was shaking and upset and scared and told them to lock the doors “because he was going to kill her”.

Wendy Thompson locked the door and Margaret Kelly took the dogs upstairs. 73 . Wendy Thompson testified that this time when Mary O'Neill came back she said that Sean Asling had been shaking her by the shoulders and that he started to choke her. Once Mrs. O'Neill was in the house Wendy Thompson observed very light bruising on her neck. Ms. Thompson pointed out the area of the bruising in Exhibit 1.7. Wendy Thompson did not, however, mention this bruising to the police when she gave her statement to them. Dr. Tahir did not note this bruising when she saw Mrs. O'Neill at the hospital later that day.

74 . Wendy Thompson also told the Court that she saw an injury on Mary O'Neill that was different from what she had seen the first time she came over for help. Ms. Thompson testified that over the knuckle area of the ring finger of Mrs. O'Neill's left hand that there was a “great big goose egg, huge one” that wasn’t there when Wendy Thompson and Margaret Kelly had taken Mary O'Neill home. The Exhibit 1 series of photographs shows the injuries to Mrs. O'Neill’s hands and arms. Exhibits 1.6 and 1.14 show the area where the goose egg was.

The area of the photograph showing the goose egg area, however, was darker in the photograph than when Wendy Thompson had seen it. She testified that, “it wasn’t black like that. It was more a whitish-yellowy colour.” She described the goose egg as “fresh”, “yellowy-white colour” that was “like it had just happened. It hadn’t blackened yet”. 75 . Ms. Thompson testified that she knew that the goose-egg injury had not been there the first time she saw Mrs. O'Neill. She believed this because she had been looking at the injuries on her hands and asking Mrs.

O'Neill questions about them during the first visit, but Mary O'Neill wouldn’t tell them about how she got them. During this second visit Wendy Thompson asked Mary O'Neill about the goose egg and asked, “Did Sean do this?” and that’s when Mary O'Neill said, “yes”. Mary O'Neill told them that, “Sean took her finger and pulled it right back”. Mary O'Neill used a gesture to demonstrate what her grandson had done. The gesture was one of grabbing the left hand ring finger with the right hand and then pulling that finger back towards the top of the wrist area. 76 .

Margaret Kelly similarly testified that when she sat Mary O'Neill down during this second visit that she noticed that she had another big lump on her left hand above the knuckle by the small finger and the wedding band finger. She described it further as being “like a big bump, like an egg shape”. She was certain that this injury had not been there before. She circled the area of the new injury on photograph Exhibit 3.8 but explained that when she saw this injury it was just a “yellowy coloured bump” with no dark bruising as seen in the photograph.

Margaret Kelly testified in Examination-in-Chief that she was certain that this was a new injury because she had seen that area when she had taken the photographs of Mary O'Neill's injuries (including her hands), the first time she was there. After leaving court to get the photographs developed on the day she testified (July 8, 2010) she agreed in Cross-Examination that there were no photographs of the left hand area, only the left arm. Ms. Kelly explained that she does not know how to focus the camera very well and didn’t know whether she had the full view of everything when she took the picture.

In Cross-Examination Margaret Kelly also agreed that in her December 2009 statement to the police she told them that Mary O'Neill “had a really big bump on her left hand that was not there the first time” but did not specify exactly where on the hand she had seen the bump. 77 . In contrast to Wendy Thompson's evidence, Margaret Kelly said that Mrs. O'Neill didn’t say anything about this new injury to her left hand and that she didn’t ask Mrs. O'Neill about it. 78 . Wendy Thompson testified that it was during this second visit that she noticed that there was also a mark on the right side of Mrs.

O'Neill’s face near her temple as seen in Exhibits 1.3, 3.4 and 5.2, however Ms. Kelly testified that she took the photograph that is Exhibit 5.2 before Mrs. O'Neill was taken home for lunch. As described above, Margaret Kelly had testified about seeing a mark on the left side of Mary O'Neill's face just as she was leaving at the end of the first visit. That injury can be seen in Exhibits 3.2 and 5.3. Mrs. O'Neill never explained how she received either injury. 79 . Wendy Thompson gave evidence that when Mrs. O'Neill came back the second time she also said that Sean Asling had given her dog away. Mrs.

O'Neill wasn’t sure where her dog was and was upset about it. Mary O'Neill cared a lot about her dog, Bella. Margaret Kelly similarly testified that when Mary O'Neill came back she was crying and upset because she said, “Sean’s taken my dog and he’s going to give it away.” At some point when Sean Asling phoned to see if his grandmother was at their house Margaret Kelly asked him where Bella was and he told her that the dog was in the bedroom under a blanket. Margaret Kelly told him, “That’s not what Mary is saying.” There was no response apart from saying where the dog was. 80 .

During the second time that Mary O'Neill was at 116 McFeeters Crescent Sean Asling came over again and was banging on the door for a “good couple of minutes”. Margaret Kelly went upstairs and phoned the police while Wendy Thompson stayed downstairs with Mary O'Neill. Ms. Kelly described that when Sean Asling came over he was constantly ringing the doorbell and when they didn’t answer he was banging, not knocking, on the garage door. They did not answer the door. Then it got quiet and Margaret Kelly saw Sean Asling walking away towards his house. 81 .

Margaret Kelly had already told Mary O'Neill that she was going to call the police the first time that she had come over, but she didn’t because Mrs. O'Neill begged her not to. Mrs. O'Neill said, “Sean will get really mad at me and Paul won't like it and he’ll get upset.” Margaret Kelly knew that Paul referred to Sean Asling's father. When Margaret Kelly saw the injuries the second time, however, she decided to call the police herself and did so. 82 .

The Court heard from the neighbours that it wasn’t until the police officer came to 116 McFeeters Crescent that Mary O'Neill started to really open up about the injuries. In Wendy Thompson's and Margaret Kelly's presence she told the officer that Sean Asling would take her fingers and pull them back. He would also take both of his hands and put them around her wrist and forearms and rub back and forth (using a gesture with the hands moving back and forth opposite to each other in a twisting motion). In her statement to the police Wendy Thompson described it as a squeezing motion, but testified that Mrs.

O'Neill in fact demonstrated the twisting motion on an officer’s arm. Mary O'Neill also said that Sean Asling used to take her ears and pull on her ears and twist them. Wendy Thompson observed that Mary O'Neill's ear was red. Mrs. O'Neill also told them that Sean Asling would choke her. She did not provide any information about when these types of events had occurred or when any of the injuries seen on April 27, 2009 had been caused. Mary O'Neill was using her own words to describe these things. 83 . Wendy Thompson had never seen Mary O'Neill behave violently towards anyone.

She had never heard Mary O'Neill respond when they overheard Sean Asling yelling at her. Wendy Thompson told the police that she hopes Mr. Asling “rots in hell”. 84 . P.C. Henderson first met Mary O'Neill at the residence at McFeeters Crescent. He testified that she was very upset at that time and was crying some of the time. This demeanour is different from what can be observed during the videotaped interview with Det.

Findlay later around 5:30 p.m. (by which time she appeared to be calm and did not seem to remember much of what she had allegedly told Wendy Thompson, Margaret Kelly and the uniformed officers earlier the same day). P.C. Henderson testified that Mrs. O'Neill was concerned and worried about what had taken place. When he asked her what had happened to her she said that her grandson Sean had done this to her. Mrs. O'Neill did not tell him how the injuries had occurred or when they had been caused. P.C. Henderson did not

press her or get into details with her about her injuries because he was the assisting officer for P.C. Huxter who had arrived at the scene 15 to 20 minutes earlier than he did. He doesn’t recall Mary O'Neill saying anything to P.C. Huxter in his presence. P.C. Huxter instructed P.C. Henderson to take Mrs. O'Neill to the hospital to have her checked out and then complete the Scenes of Crime Officer photographs. P.C. Huxter did not testify to this point in the trial. The Court cannot speculate as to what he might or might not say about his dealings with Mary O'Neill. P.C.

Henderson testified that Mary O'Neill was very concerned about her dog and thought that Sean Asling was going to get rid of the dog. He did not find her level of upset about the dog to be unusual, because the whole incident was upsetting to her. He believes that he was at the residence for approximately 35 to 40 minutes in total after which they left the residence at 15:35 hours to go to the hospital, arriving there at 15:40 hours. They were there until 17:00 hours. During his time with her Mrs. O'Neill did not act in any unusual way such as asking repetitive questions or losing focus of where she was.

She was very quiet but understood what was going on. She answered questions such as her name and date of birth. She answered him when he asked her, “Do you understand where you’re going?” and gave P.C. Henderson her doctor’s name at the time, saying she wanted to see her doctor at the Bowmanville hospital. 85 . Dr. Ferhana Tahir testified about her dealings with Mary O'Neill in the Emergency Department at the Bowmanville hospital on April 27, 2009. Dr. Tahir spent 15 minutes with Mrs. O'Neill in total. Dr. Tahir was neither tendered as nor qualified as an expert in this trial.

Medical records from that hospital were filed as Exhibit 4. They indicate that Mary O'Neill was “alert and oriented” to her person (meaning she knew who she was). Dr. Tahir testified that Mary O'Neill was quiet most of the time during her dealings with her. It was relevant to Dr. Tahir that Mrs. O'Neill was oriented because she had an injury to her head. Mary O'Neill knew who she was and even knew her date of birth and address. Dr. Tahir had no concern that Mrs. O'Neill knew she was a doctor providing medical care to her. Mary O'Neill knew she was in a hospital but not which hospital. If Dr.

Tahir had noted any cognitive deficiencies she would have requested at CAT scan (which she did not require). Mrs. O'Neill did not ask repeated questions about information provided to her shortly before. Dr. Tahir did not observe Mrs. O'Neill to exhibit any behaviour that would cause concern about her cognitive level or comprehension of her surroundings. 86 . Dr. Tahir said that Mary O'Neill complained of discomfort in her wrists and hip. Mrs. O'Neill complained that her wrists were sore but when the doctor felt her wrists there was no specific point where they were sore. Dr. Tahir observed that Mrs.

O'Neill had extensive bruising on both of her wrists but there was no indication of a fracture. Dr. Tahir conceded that she was not qualified to give an opinion as to when the bruising may have occurred. Dr. Tahir was not provided with any history of choking and did not observe any injuries around her neck area. She did not observe any injuries to her ears or upper arms. 87 . When Dr. Tahir asked Mary O'Neill, “How did it happen?” Mrs. O'Neill did not say when the injuries were received or how they were caused.

Rather, the officer offered an explanation including that the injuries were caused by her grandson and Mrs. O'Neill kept nodding. The officer said a little bit about what happened; however, Dr. Tahir did not make any notes of this and could not remember what the officer said (but believes it may have involved shaking). Dr. Tahir advised the Court that notes in the nursing record might have included information about when the injuries were caused but she did not bring those notes to court. Dr. Tahir did not make any notation of any significant goose bumps.

An x-ray was taken of Mary O'Neill's ankle, but nowhere else. An anti-inflammatory medication was prescribed, but no medication was dispensed at the hospital. Mrs. O'Neill was then discharged. 88 . Due to Dr. Tahir's lack of notes and poor memory with respect to what was said, the Court has serious concerns about placing much weight on her evidence with respect to what the officer said about how Mrs. O'Neill's injuries were caused (and Mrs. O'Neill allegedly nodding in agreement). P.C. Henderson did not provide any evidence to support this. The Court is, however, prepared to place more weight on Dr.

Tahir's description of how Mrs. O'Neill was functioning cognitively given that, in part, she was being medically assessed for a suspected head injury. The Court must also weigh this part of Dr. Tahir's evidence in light of what can also be seen of Mrs. O'Neill’s condition on the videotaped interview with Det. Findlay which occurred shortly after the hospital visit. 89 . The Court heard evidence that Wendy Thompson, Christopher Kelly and Margaret Kelly spoke about what had happened after the incident.

Wendy Thompson and Margaret Kelly both testified that they could still distinguish between their own memories and what others had said. 90 . After these incidents a camera was installed on their property facing into the backyard of their home at 116 McFeeters Crescent. The camera also looked partly into the yard of Sean Asling's house at 112 McFeeters Crescent. This was done to protect their property. Margaret Kelly testified that she had it installed because she didn’t trust Sean Asling and was worried that something might happen to her van that’s always parked in the driveway.

She was also worried about her two dogs (one was a show dog) and didn’t want anything to happen to them. 91 . As indicated earlier, the police apparently lost Margaret Kelly's original videotaped statement, so a further written statement was taken from her in December of 2009. Ms. Kelly denied that it was challenging to recall all of the details when providing the later statement because she said that “it was very vivid in my mind”.

Later in her evidence she described that her memory when she gave her second statement in December of 2009 was “fairly good” but agreed that it was not as good as the day of the incident. 92 . As indicated above, Detective Robert Findlay is the Durham Regional Police Service officer interviewed Mary O'Neill on April 27, 2009. Her first met her shortly after 5:10 p.m. in the interview room at the Bowmanville detachment. He conducted a videotaped interview of Mrs. O'Neill which started at 5:24 p.m. and lasted until approximately 5:44 p.m. Det.

Findlay described that Mary O'Neill “seemed fairly calm, polite, cooperative, maybe slightly disoriented at the time”. The DVD of the interview was marked as Exhibit A.1 and the transcript of that interview Exhibit A.2. Det. Findlay testified that during all of his dealings with Mary O'Neill that her behaviour appeared to be “pretty much the same” as what can be seen in the videotape. She did not ask repetitive questions every five minutes. She seemed to understand that she was at a police station, but at one point appeared to forget that Det. Findlay was a police officer until he reminded her. Det.

Findlay agreed that Mary O'Neill did not appear to be evasive but rather was confused and having trouble remembering some things during the interview. 93 . During the videotaped interview Det. Findlay asked Mary O'Neill several questions including how she got the bruises on her hands. She did not volunteer any information about them before being specifically asked about her injuries. Mrs. O’Neill said “this one he did” pointing to her right wrist and forearm. She then demonstrated how “he” had done it by placing her left hand to grab the

officer’s right wrist. It was not a twisting motion and it was done with one hand, not two. She then said, “And then afterwards it spread like that” and pointed to the bruises on her right hand and arm. When the officer asked why he grabbed her there Mrs. O'Neill said she didn’t know. The officer then asked a leading question, “Was he angry?” and Mary O'Neill responded, “I don’t know, but I know he did, you know. But then it’s got to look ugly and worse”. When asked if the bruises hurt she said “it’s not bad now” unless she pushed on the bruise. Det.

Findlay asked her, “Do you remember when he did that to you?” and she said, “I don’t think it was very long ago.” The officer then asked, “Was it yesterday?” and she responded, “day before yesterday or something”. Det. Findlay then asked, “what about the bruises on your other hand [referring to her left hand]”. Mary O'Neill said, “I don’t know…I don't remember, I might have just had those, I don't know”. Then Mrs. O'Neill pointed to her right wrist and forearm and said, “I know this…this hand he did…this part here I remember.” 94 . Mary O'Neill told Det.

Findlay that she did not know or remember how she got the little bruise on her cheek beside her eye. She could also not remember how she injured her foot and ankle area causing her to have difficulty walking. When asked how long her foot had been like that she said, “I don't know, I guess it’s just a short time”. When asked, “Has Sean ever done…ever grabbed you before?” Mrs. O'Neill responded, “Not that I know of, no, I don’t think so.” Det.

Findlay then asked her, “When he grabbed you there was he angry?” and she said, “I just can't remember, he might have been.” When asked next, “Are you afraid of Sean?” she answered, “No, no.” Later on Det. Findlay asked Mrs. O'Neill, “Can you remember him ever doing anything else? Has he ever shoved you, or…?” and twice she answered “No”. He then asked, “You don't know why he grabbed you that day though?” to which she replied, “No. I don't know what it was about.” She also denied that Sean Asling yelled a lot. 95 .

Paul Asling came to pick up Mary O'Neill from the police station once the police were finished interviewing her and taking photographs of her injuries. He arrived at about 6:40 p.m. When Paul Asling asked her what was happening Mrs. O'Neill did not show him the bruises. At that point Det. Findlay pointed out the injuries to him and Paul Asling asked Mrs. O'Neill what had happened to her. At first she didn’t answer and was confused, so Det. Findlay asked her if she remembered telling him what had happened to her and she said, “You mean when I told you Sean did this?” and the officer said, “yes”. 96 . Det.

Findlay was not able to obtain the consent of Mrs. O'Neill or her Power of Attorney to obtain the medical records from the Lakeridge Health Bowmanville hospital for Mary O'Neill. Therefore he had to obtain them by search warrant. On consent those medical records were filed as Exhibit 4 at the trial. 97 . Det. Findlay arranged for a uniformed officer to arrest Sean Asling and bring him to the Bowmanville police station where Det. Findlay first met him at 8:30 p.m. on April 27, 2009. The statements made by Mr. Asling at that time were admitted to be made voluntarily. When Det. Findlay entered the room he told Mr.

Asling who he was and asked if he wished to talk about this. Mr. Asling said that his lawyer said not to talk about it and he “knew that it wasn’t going to do anything that night anyways for him”. Mr. Asling then went on to say that he didn’t do anything to hurt his grandmother. He said that “she began to come at him and then slip on the stairs”. At that time the officer told Sean Asling to stop talking because he wanted to caution him and “get him on the record”. At that time Mr. Asling declined to talk to Det. Findlay any more. Det. Findlay found Sean Asling to be polite and cooperative. 98 . Det.

Findlay described Mary O'Neill as being a very slight frail looking woman whom he believed to be less than 5 feet tall and to weigh well under 100 pounds. By comparison he described Sean Asling to be a very large individual approximately 6 foot 3 inches tall and probably 300 pounds. The Evidence of Prior Discreditable Conduct 99 . As set out in several paragraphs of the

summary of evidence above, the Court heard testimony from Wendy Thompson, Margaret Kelly and Christopher Kelly about Sean Asling's past behaviour towards his grandmother (the allegations being that on many occasions leading up to April 27, 2009 he was verbally abusive to her by yelling at her and belittling her). 100 . The Crown in his factum argued that in the context of the relationship between Sean Asling and his grandmother, and in the context of the day, Mr. Asling was motivated by anger, rather than protection so he assaulted his grandmother.

The Defence argues that the evidence with respect to their prior relationship is not admissible on this Application and thus ought not to be considered in determining the admissibility of the hearsay statements. Sean Asling has not testified up to this point in the trial. The Defence points out that Sean Asling has neither denied any animosity between himself and his grandmother nor denied yelling at her. The Defence argues that evidence of any prior animus between Mr. Asling and Ms. O’Neill does not make the alleged Hearsay more reliable.

They also argue that any inferences sought to be drawn by the Crown in order to demonstrate that animus may only be reasonable if the hearsay evidence is true. 101 . The Trial is not complete. The proper use to be made of any prior discreditable conduct allegedly arising prior to April 27, 2009 has not been fully argued or found to be admissible in the trial yet. Therefore, as indicated earlier in these Reasons, for the purposes of this Hearsay Application that prior conduct will not be taken into consideration when determining the admissibility of the hearsay evidence on this Application.

Application of the Law to the Evidence in this Case 102 . The Court starts from the premise that all of the hearsay statements made by Mary O'Neill are presumptively inadmissible unless there are sufficient indicia of trustworthiness to displace the general exclusionary rule. There are particular dangers arising from the nature of hearsay evidence so the Court must examine the factors relating to each statement to determine if there are any means to

overcome those dangers. (See: R v. Blackman , supra , and Khelawon , supra ) 103 . In this case Mary O'Neill is not available to be cross-examined due t

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