R. v. K.S.S., 2021 MBPC 55

CITATION: R. v. K.S.S., 2021 MBPC 55 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. Smith & J. Rebizant ) for the Crown - and - ) ) K.S.S. ) C. McCoy ) for the Accused ) ) Reasons delivered: ) November 12, 2021 Restriction on publication: By court order under s. 486.4(1) of the Criminal Code , any information that could identify the complainant/witness shall not be published in any document or broadcast or transmitted in any way. L. Martin, P.J.

INTRODUCTION [ 1 ] K.S.S. (K.S.S.) stands charged with committing an aggravated assault against his wife K.S. and breaching his April 19, 2020 undertaking. The charges stem from an incident on May 31, 2020 when 911 was called after K.S. received stab wounds to her abdomen and legs. It is not disputed that K.S.S. was bound by an undertaking and the undisputed evidence is that he breached the conditions of that undertaking on May 31, 2020 by having contact with K.S., attending her residence and consuming illegal drugs. The issue for the Court is whether it was K.S.S. who assaulted K.S. as the Crown alleges.

The determination of this issue requires the Court to consider questions of credibility and reliability. [ 2 ] The trial of this matter took place during nine non-consecutive days over many months. There were several voir dires as to the admissibility of K.S.S.’s statement to the police, res gestae comments uttered by K.S., her videotaped statement to police and doorbell camera footage. With the exception of K.S.S.’s statement which I found inadmissible because of s. 10(

b) and 7 Charter breaches, all of the evidence was admitted in the cause. Fifteen Crown witnesses were called at trial. K.S.S. did not testify. [ 3 ] Before reviewing the evidence, I think it is helpful to provide some background to help contextualize it. BACKGROUND [ 4 ] K.S.S. and K.S. were married in India in 2009. In 2014 they immigrated to Canada with their then two-year-old son. Several years later, they had a second son. Currently, they are permanent residents of Canada. [ 5 ] Establishing themselves in Canada has been financially difficult.

Though K.S.S. worked as a trucker and K.S. as a part-time healthcare aide, it was not until September 2019 that they were finally able to purchase their first home. By then, they felt financially secure enough for K.S. to stop working. That situation did not last long as K.S.S. lost his job in March 2020 as a result of a drug addiction. [ 6 ] K.S.S.’s addiction to drugs has waxed and waned over the years. In early 2019, after being incarcerated for approximately two months, he managed to remain sober for approximately one year.

By March 2020 however, his drug addiction became so bad that K.S. felt like it was destroying their family: they had no money, they were constantly arguing and fighting, and K.S.S. was staying away from the home more and more often. [ 7 ] K.S. reached out for help and support to deal with K.S.S.’s addiction. She returned to work while her mother, S.C. (S.C.), who had been in Canada living with them since 2016, took care of the children. She rented a room out to her friend S.K. (S.K.). She took K.S.S. to the doctor for treatment and she regularly called the police. Nothing fixed her predicament.

Though K.S.S. tried to abstain from consuming drugs, he would quickly relapse and the arguments and fights would continue. Each time, K.S. would express her concerns over his drug use and their dire financial situation, and each time the two would argue and fight. The fights consisted in back and forth pushing. [ 8 ] As time progressed K.S. began to feel helpless. She considered committing suicide and told K.S.S. that she might as well just end her life. His behaviour did not change. On March 18, 2020 as the two fought, K.S.S. tried to leave the house and K.S. threatened to call the police if he did.

When he left the house, she called the police and claims to have falsely accused him of assaulting her and uttering threats to cause bodily harm. Though K.S.S. was arrested, those charges were ultimately stayed. However, he was on an undertaking to have no contact with her, not attend their residence and abstain from the consumption of illegal drugs. In spite of these

conditions, K.S.S. would come home to eat and get clothes and sometimes stay for a while. K.S. would allow him to do so as it is her culture to keep the family together and to not say no to her husband. He was bound by that undertaking when these allegations occurred. MAY 31, 2020 [ 9 ] May 31, 2020 started out with more of the same dynamic between K.S.S. and K.S. Sometime between 7:00 p.m. and 8:00 p.m., K.S.S. came to the house to eat dinner. Both K.S. and S.C. testified that he was obviously high on drugs. They could tell by his behaviour – when he was not on drugs, he was kind, patient and attentive.

When he was high on drugs, he was paranoid. [ 10 ] The family home is a split-level. The front entrance door that leads into the home has a small entranceway and looks directly into the kitchen. At the back of the kitchen is a stairwell that leads both to the upper floor, where the bedrooms are, and down to the basement. Near the stairwell is a door to the left that leads to the family room. [ 11 ] The kitchen has cupboards on both sides. The left-hand side of the kitchen, when entering, is in a “U” shape. Along the front facing wall is the microwave above which the knives are kept in a block.

When not put away in the knife block, the knives are either in use or drying near the sink. The dishwasher is along the wall adjacent to the family room. In the corner on the other side of the dishwasher is the sink. Along the other wall is the fridge and the stove. [ 12 ] On May 31, 2020, the family had dinner in the family room around 7:30 p.m. or 8:00 p.m. and K.S.S. and K.S. began arguing. That argument continued into the kitchen while their two boys and S.C. remained in the family room.

Though S.C. testified that she only heard the two talking, not quarreling, both K.S. and the tenant S.K. who was in her room upstairs, testified to them arguing such that I do find that they were. Their arguing is also consistent with K.S.’s evidence as to the current dysfunction in their relationship. There is however, no evidence as to how long that arguing lasted. [ 13 ] Shortly before 9:42 p.m., S.C. heard something drop in the kitchen then K.S. scream. She testified that she went to the kitchen with one of her grandsons to see what was happening.

She saw a knife on the floor at the back of the kitchen near the corner of the stairs. K.S.S. was standing by the back wall of the kitchen and K.S. was in between the two sides of the cupboards. She testified K.S. and K.S.S. were far away from the knife, saying at first that K.S.S. was closer, then that the two were approximately equal distance apart. As K.S. slouched over, she began making a U-turn around the kitchen and out the front door. S.C. testified that she picked up the knife and asked K.S.S. what happened.

S.K. testified that she heard two or three people yelling in Punjabi and maybe someone saying “just leave her alone” but she could not recognize the voices and neither S.C. nor K.S. were questioned about these comments such that I have placed no weight on them. [ 14 ] S.C. testified that she was angry because of what had happened to her daughter and because she did not know what was going on. When asked in direct examination if she was trying to protect K.S.S., she testified that she cannot say anything, that it is the judge’s decision.

She just wanted to say that K.S.S. is a “really good guy” and she wanted him to stop the drugs. THE 911 CALL AND POLICE ATTENDANCE [ 15 ] When K.S. walked out the front door she collapsed on her front lawn. Doorbell camera footage entered as an exhibit shows the sequence of events. The K.S.S.’s neighbour who was outside ran to K.S.’s aid and called 911. The K.S.S.’s eldest son also called 911. The 911 call was not entered as an exhibit in the cause. [ 16 ] S.C. and the K.S.S.’s children who were crying came outside. S.C. was still holding the knife she had picked up from the kitchen floor.

K.S. told her mother to drop the knife which she did, attend to the children and take them back inside the house. [ 17 ] Several Winnipeg Police Service (WPS) officers were dispatched to the 911 call. Constable Crystal Hiebert (Hiebert) and her partner Constable Tristan Peterson (Peterson) were dispatched at 9:42 p.m. They arrived at the K.S.S. residence at 9:47 p.m. Canine Unit Officer Constable Daniel Papetti (Papetti) arrived at the same time. While Peterson and Papetti went to the front door, Hiebert immediately turned her attention to K.S.

That is where her attention remained focussed during the police presence. Constable Hiebert’s Evidence [ 18 ] Hiebert testified that K.S. appeared to be in pain. She was seated on the ground, hunched over, clutching her stomach, wincing in pain, and groaning with laboured breathing. S.K. was holding a towel to K.S.’s stomach. Hiebert lifted the towel and saw one stab wound to K.S.’s stomach. [ 19 ] K.S. was not really saying anything unless asked a question. Hiebert thought it best to not engage her in conversation and to allow her to relax.

Very shortly after attending to her side however, she asked K.S. who stabbed her. Hiebert testified to having an independent recollection of K.S. responding verbatim : “It was my husband, the man that the other police took from the house” even though she did not record that in her notes.

Rather, she had written in her own words, “victim confirmed she had been stabbed two times in the stomach by her husband and that he was the right male in custody.” [ 20 ] In cross-examination, when challenged on her independent recollection, Hiebert remained adamant about it even though it was pointed out to her that K.S.S. was not taken out of the house until after she had her conversation with K.S. Hiebert testified that K.S.S.’s removal from the house was happening simultaneously to her conversation with K.S.

She knew this because she heard an officer state that they had the male in custody even though she had her back to the house. [ 21 ] Hiebert’s evidence as to the timing of her conversation with K.S. and her verbatim comments is problematic as it is inconsistent with the evidence in the cause as will be detailed later. Simply put, if K.S. did utter them when Hiebert says she did, the statement is not accurate as K.S.S. had not yet been removed.

With these concerns noted, I nonetheless accept that Hiebert did ask K.S. who stabbed her and that K.S. responded in some fashion that it was her husband, for reasons that I will detail later. Constables Peterson’s and Papetti’s Evidence

[ 22 ] Peterson could not recall if the door to the K.S.S. residence was open or closed when he approached the residence with Papetti. He did however testify that K.S.S. met them at the door where he was ordered to the ground, handcuffed and advised that he was under arrest for aggravated assault. Papetti testified that they told K.S.S. to come outside and he was arrested on the front porch. I do not accept that K.S.S. exited the house as this is inconsistent with the other evidence that places K.S.S. inside the house until he is escorted to the cruiser car.

Evidence of the other Attending Constables [ 23 ] Constables Nolin (Nolin) and Popovych (Popovych) arrived on scene shortly after Hiebert, Peterson and Papetti. There is no evidence as to the exact time of their arrival. Popovych testified that when they arrived, Hiebert was with K.S. on the front lawn and K.S.S. was lying in a prone position at the front entrance. While Nolin remained with K.S.S., he, Peterson and Papetti cleared the house. No one else was inside. [ 24 ] Constables Remillard (Remillard) and Pagiannopoulos (Pagiannopoulos) arrived on scene around this time.

Though Pagiannopoulos testified that they arrived at 9:24 p.m. that evidence is not consistent with the call history and the evidence as a whole suggests that these two officers would have arrived later. [ 25 ] Remillard testified that she went to Hiebert and assisted by putting pressure on K.S.’s wounds. At some point, Hiebert left to bag the knife that was lying on the front lawn, leaving Remillard alone with K.S.

Remillard testified that K.S. briefly told her what happened though neither she nor Pagiannopoulos had any notation of such a conversation. [ 26 ] At some point the paramedics arrived and Popovych and Nolin escorted K.S.S. to their cruiser. Popovych testified that he noticed K.S.S. was sweating in the cruiser. When he asked him if he was alright, K.S.S. told him he had taken methamphetamine earlier that day. Nolin, on the other hand, testified that the call history mentioned something about drugs and because K.S.S. was sweating profusely, he and Popovych wanted to ensure that he was alright.

Not much turns on the discrepancy as to the source of the information about K.S.S.’s earlier drug consumption. In the end, K.S.S. was medically cleared by the paramedics. [ 27 ] K.S. was taken to the Health Sciences Centre (HSC) by ambulance. Pagiannopoulos rode with her. The knife that was picked up by Hiebert was given to the paramedics who placed it with her on the stretcher where Pagiannopoulos took control of it. Remillard followed the ambulance to HSC where K.S. underwent surgery to repair three stabs wounds to her abdomen and two to her leg. THE MEDICAL EVIDENCE [ 28 ] Dr.

Lipschitz is the surgeon who performed the surgery on June 1, 2020. He testified that K.S.’s injuries were sustained as a result of penetrating trauma from a sharp object. He estimated that the wounds to the abdomen were approximately two to three centimetres in depth though he clarified that it was difficult to say with certainty as the abdomen moves back and forth. [ 29 ] On June 4, 2020 K.S. required a second surgery as a two centimetre serosal tear in the anterior portion of the stomach proximal to the pylorus had been missed during the first surgery.

The June 4, 2020 Operative Report entered into evidence notes a laceration to the ileal and the transverse colon that were repaired during the earlier surgery. [ 30 ] K.S. was prescribed three different medications to assist in her recovery, hydromorphone, morphine and a third unknown medication. THE FORENSIC INVESTIGATION [ 31 ] Constable Lindsay McLauchlan (McLauchan) was the Forensic Identification Officer who attended the K.S.S. residence. Her evidence was limited to photographs of the scene.

She testified that she swabbed some blood splatter but neither that blood nor the blood on the knife was analysed as no one provided her with K.S.’s DNA and the RCMP laboratory will not analyze blood samples without a comparison sample. [ 32 ] McLauchlan testified to finding two blood splatters in the kitchen – one by the stove, and one in front of the cupboards by the stairs. K.S.’S EVIDENCE [ 33 ] As K.S. did not attend to Court on the day she was subpoenaed, a Witness Warrant was issued.

She ultimately attended on April 23, 2020 and testified. [ 34 ] K.S. testified about her family’s immigration to Canada, the recent purchase of their first home in September 2019, and her husband’s struggle with drugs and the devastating impact his addiction was having on the family. She testified to her growing frustration. She simply wanted her husband to stop using drugs. [ 35 ] As for the night in question, K.S. testified to having a spotty recollection. She could remember the events leading up to her injuries, but little to nothing after. She testified that K.S.S. came to the house around 8:00 p.m.

She could tell he had been using drugs as he was not himself. He was paranoid and believed that someone on television was saying his name. After the family had supper in the family room, she and K.S.S. went into the kitchen so she could prepare food for him to take. At some point she told him to leave the house. He left through the backdoor to go to the garage then came in through the front door. The two of them were standing by the dishwasher when she got hurt.

She testified in direct examination that she thinks K.S.S. hurt her because no one else was with them but she could not remember what happened because it was so quick and she was in shock. She did not recall grabbing a knife herself. She became scared of K.S.S. because she got hurt and ran out of the house. Though she remembers the police attending and being taken by ambulance to HSC, she does not remember her interaction with police, including telling Hiebert that her husband stabbed her.

[ 36 ] Because K.S. testified to having no memory of the incident, pursuant to s. 9(2) of the Canada Evidence Act, the Crown applied and was granted permission to cross-examine her on a videotaped statement she made to the police on June 2, 2020. K.S. acknowledged that it was important to her that K.S.S. return home to live with her and their family. She testified: “Yeah. I don’t want it.

If he did it on purpose then please send him to jail.” She also expressed her view that she thought that what happened to her was an accident, testifying: “Yeah, I think it’s because it’s only the drug problem.” She acknowledged that after she provided her videotaped statement to the police she became aware of the potential immigration consequences to K.S.S. if he was convicted.

She testified as well that her children missed their father, that she was finding it financially difficult and that if he left, she would have nothing left and she will have failed in her duty as a woman to keep the family together. [ 37 ] However, K.S. also testified that she did not understand at the time she gave a videotaped statement that if she came to court and changed her evidence that she could be charged.

When asked by the Crown attorney if she was telling the truth during her statement, she testified that she was angry with K.S.S.. [ 38 ] In cross-examination, K.S. testified that she was never afraid K.S.S. would harm her. She was worried for him, afraid he might have an accident and leave her with nothing. She testified to threatening to call the police in March 2020 if K.S.S. left the house, and did so, making false allegations of assault and uttering threats.

She testified that she felt so frustrated with the entire situation over K.S.S. that she had thought about committing suicide and had expressed these thoughts to K.S.S.. When defence counsel suggested that she was the one who stabbed herself on May 31, 2020 to show K.S.S. how much he was hurting her, K.S. testified that she could not remember but “it could be”. [ 39 ] As for her videotaped statement, K.S. testified in cross-examination to not being herself when she gave it. She was on medication which caused her to see skeletons on the walls, scream and cry.

She also acknowledged incorrect facts in the transcript of her statement, including her year of birth, (which she also testified to thinking she heard herself give the wrong year) where she was stabbed or who was in the house. She also acknowledged telling the doctors they could kill her. She stated that prior to giving the statement she had spoken with her mother who told her it must have been K.S.S. who stabbed her because she could not remember what had happened, so they “just go with that”.

S.C. was not asked about any conversations she may have had with K.S. before she provided her statement though she testified before K.S. K.S. further testified to not understanding the full ramifications of providing the statement and had spoken to a lawyer because she was concerned about coming to court and admitting some of the things she said in her statement were not true. These conversations occurred when she was arrested on the Witness Warrant. She further testified that as she is Sikh, she would not have sworn on the Bible had she been fully aware and lucid.

She said that when she provided her statement she was angry with K.S.S., because she was hurt, not because he stabbed her as she did not know how she got stabbed. She also acknowledged that if he was in jail for a while it could help with his addictions. [ 40 ] In re-examination, K.S. acknowledged that self-harm is not acceptable in her religion but added that she did not want to live her life as it currently is. She also acknowledged that she never previously told the Crown or victim services that it was possible she had harmed herself on May 31, 2020.

K.S.’S VIDEOTAPED STATEMENT [ 41 ] K.S. provided a videotaped statement to the police on June 2, 2020 at HSC following her surgery when she was medicated.

Given her oral evidence as to her lack of memory of the events in question, her statement was admitted into evidence under the principled approach. [ 42 ] Constable Katherine McDonald (McDonald), a WPS Officer who had met with K.S. on previous occasions at the K.S.S. residence, testified that she went to HSC on June 1, 2020 to take K.S.’s statement but the latter told her she was not up to it and to come back the next day which she did, with her partner Constable Black (Black).

McDonald testified that when they returned the next day, K.S. appeared visibly better and of sound mind and consented to providing a videotaped statement. [ 43 ] On cross-examination, several factual errors in the transcript of K.S.’s statement (not the statement itself, which is important for reasons discussed later) were pointed out to McDonald and Black which they acknowledged. McDonald testified however, that her purpose in getting the statement was to provide K.S. an opportunity to speak freely about the incident. [ 44 ] K.S.’s entire statement is videotaped.

Constable Houde, a Commissioner for Oaths, is heard saying that he understands K.S. wants to swear an oath on the Bible, which she does. She is advised that it is a criminal offence to give a false statement or to claim it to be false at trial, and she signs a declaration to that effect. Her signature is produced precisely on the line indicated, and she indicates her willingness to provide a statement after being advised that it is her choice to do so. [ 45 ] During the statement, K.S. appears tired but lucid. She responds without hesitation, fully and meaningfully to the questions asked of her.

The questions are open-ended. Some questions prompt clarification or further detail. When McDonald seemingly misunderstands what K.S. has said, the latter corrects her. [ 46 ] During her statement K.S. is seen to be in pain at times and press the self-dosing medication button. [ 47 ] K.S. says that she told K.S.S. to leave the house after he was saying something to her son about a video he was watching on YouTube. He agreed to go, leaving by the backdoor through the garage but then came back through the front door saying he needed food. He was very quiet.

Out of nowhere, he stabbed her while she was facing the microwave. She did not see where he got the knife from as she kept the knives in the cupboard above the microwave and he was to her right. All she felt was K.S.S. touch the front of her shoulder then stab her two to three times, pointing to her stomach. She said that is when she ran. She thought this was when K.S.S. stabbed her legs. It took her by surprise and she did not comprehend what had happened. Her children ran into the kitchen so she left the house by the front door.

K.S. then explains how the children followed her outside with her mother and how the next door neighbour assisted. She also explains how her son and her neighbour both called 911, how the police came and applied pressure to her stomach and arrested K.S.S.. She also shares that she wanted to divorce K.S.S.. She had tried everything and nothing worked. ANALYSIS

[ 48 ] This case epitomizes the difficulties with domestic violence matters particularly with their investigation and evidence at trial. The onus lies with the Crown to prove beyond a reasonable doubt that the accused, K.S.S., stabbed his wife, K.S. on May 31, 2020, thereby committing an aggravated assault. There is no dispute that K.S. was stabbed on that date.

Defence says however that the evidence presented by the Crown does not establish that it was K.S.S. who did so. [ 49 ] Defence raises several issues with the evidence which may be summarized as: • the lack of a proper investigation by police; • a factually incorrect videotaped statement by K.S.; and • the lack of clear identification of the perpetrator. [ 50 ] I will address these arguments without losing sight of the law that clearly stipulates that in determining whether the Crown has established guilt beyond a reasonable doubt, the Court must consider all of the evidence and that in assessing weight, the Court may accept all, some or none of the evidence of a particular witness.

The Police Investigation [ 51 ] The sad and unfortunate truth in this case is that a woman was stabbed in her family home. Defence counsel submits that the police investigation into what was occurring when WPS attended to the scene, their follow up at HSC, the taking of the complainant’s statement, and the forensic investigation were insufficient. To some extent, I agree. The Lack of note taking and the res gestae comments [ 52 ] The scene which was presented to attending officers on May 31, 2020 was a chaotic and fast moving one. K.S. was lying on her front lawn bleeding from her stomach.

Police needed to attend to her well-being and apprehend the suspect all without knowing the true extent of the risk. [ 53 ] In situations such as these, it is understandable that officers are not recording verbatim comments as events unfold. However, some notes or notes as close to verbatim as possible are preferable, as in many domestic assaults, the complainant may not wish to co- operate, may not remember all of the details or may be subject to attacks on her credibility.

Reliability of evidence is therefore important. [ 54 ] In this case, Hiebert was adamant about her independent recollection of K.S.’s verbatim comments. And yet, the evidence in the cause is inconsistent with a portion of her recollection such that it is not reliable and I cannot place much weight on her evidence as to the verbatim comments. That said, I do accept that Hiebert asked K.S. who stabbed her and I do accept that K.S. told her it was her husband. When Hiebert arrived at the K.S.S. residence and attended directly to K.S., it was natural for Hiebert to ask who hurt her.

K.S.’s response is also consistent with her later comments to police that it was K.S.S. who stabbed her. The issue of the weight placed on K.S.’s comments will be dealt with later. The Lack of Notes and the Videotaped Statement [ 55 ] The lack of notes during K.S.’s statement have likewise resulted in evidentiary issues. Videotaped statements are typically taken at a police station. One officer conducts the interview while the other monitors and takes notes. The annotation can allow an officer to refresh their memory as to what they were hearing at the time.

Though a videotaped statement should stand on its own, that is not always the case, as was seen here. K.S.’s accent and degree of proficiency in English, the background noise at HSC and the general sound quality were such that it was often times difficult to make out exactly what K.S. was saying. When K.S.’s statement was transcribed as an aid, errors were made by the court reporter. The Crown submitted that there were errors in the transcription but there was no factual determination by the Court during the trial.

Defence counsel was cautioned that the transcript was not in evidence but he referred to it often and it is clear that the incorrect transcription tainted perception. [ 56 ] Both McDonald and Black watched the videotaped statement played in court and then were questioned in regards to it. McDonald testified that she did not recollect hearing any factual mistakes in K.S.’s statement. However, when defence counsel referred McDonald to errors in the transcript she acknowledged them even though there are no factual errors in the videotaped statement itself.

As for Black, he often referred to the factually incorrect transcript, stating that he had a hard time understanding K.S. for the same reasons I have expressed. He too eventually acknowledged the factually incorrect transcript. [ 57 ] K.S. was also cross-examined on her statement. She was specifically asked to listen to one area of her statement and tell the Court what she heard.

However, the transcript was used once again to point out errors that K.S. agreed were not true. [ 58 ] The errors in the transcript defence counsel pointed out relate to K.S.’s year of birth, the location and number of stab wounds, her fatal demise, who was in the house at the time of the stabbing, and what was transpiring between K.S. and K.S.S. immediately before the stabbing. Upon listening to the videotaped statement I find that these errors are indeed in the transcript, not the statement. Though noted earlier in the decision, for clarity, I will reproduce these errors: i.

K.S.’s birth year is transcribed as 1999. Her correct birth year is 1990. I am unable to find beyond a reasonable doubt that she says 1990. The sound quality is too poor; ii. The transcript indicates that K.S. says K.S.S. stabbed her and ‘then I die.’ I find that K.S. did not say this. Rather she says, “he stabbed me and then I ran.” iii. The transcript indicates that K.S. says that after being stabbed near the microwave, her children and mother came into the kitchen trying to hold him and ‘he stabbed my neck that time.’ I find that K.S. did not say neck. Rather, she says “he stabbed me in the

leg that time.” iv. The transcript indicates that K.S. says K.S.S. grabbed her ‘shoulder and stabbed it two times like that.’ I find that K.S. says that “he grabbed my shoulder then stabbed me two or three times.” [ 59 ] The ultimate weight I place on the videotaped statement will be dealt with later.

However, I wanted to point out once again that the absence of notes and the presentation of a factually incorrect transcript to the witnesses led to the identification of discrepancies that do not exist. [ 60 ] Though defence counsel criticizes McDonald and Black for failing to correct factual inaccuracies uttered by K.S. during her videotaped statement, as I find no such factual inaccuracies, there was nothing to correct.

I would note as well, that although McDonald and Black acknowledged to either some failing on their part or a wish to provide K.S. an opportunity to provide her story without interruption or correction, that is not what happened during her videotaped statement. McDonald often asked questions, clarified responses and even gently corrected a factual error as to the time of the incident. [ 61 ] As for K.S.’s alleged error about who was in the house at the time of the incident, I note that McDonald interrupted her at that time and there was no further questioning on this point by McDonald.

The Lack of Follow-up of Forensic Evidence [ 62 ] Defence counsel also criticizes the lack of follow-up of the forensic evidence seized at the K.S.S. residence, namely, the failure to send the blood samples for analysis. He also criticizes the lack of continuity evidence as to the knife that was seized from the front lawn of the residence. [ 63 ] I agree with defence counsel that forensic evidence is often of utmost importance and should be treated as such. In this case, however, the forensic evidence is not essential. It is not in dispute that K.S. was stabbed and was bleeding.

Whether or not it was actually her blood on the floor or on the knife is immaterial. The Identification Evidence [ 64 ] This brings us to the identification evidence which comes mainly from K.S. Defence counsel submits that K.S.’s evidence does not amount to proof beyond a reasonable doubt as it is too fraught with frailties and too equivocal. He says the videotaped statement is unreliable given her medicated state and her oral evidence is imprecise given her admission that she may have stabbed herself.

For the reasons below, I do not agree. [ 65 ] It is trite to say that K.S. did not want to participate in this trial. Throughout her evidence she made it clear that if her husband had stabbed her intentionally she wanted him to go to jail. On the other hand, if he stabbed her while delirious as a result of a drug induced state, she wanted him home.

Contrary to her initially stated intention to divorce her husband, the realities of such a decision have hit home: she is in dire financial straits, her children miss their father, she is alone raising them, and he might be deported. [ 66 ] It is in this light that I have interpreted K.S.’s evidence – loathe to provide evidence that could be used to convict her husband, send him to jail and be deported. [ 67 ] Though K.S. testified in cross-examination that she had contemplated suicide and conceded she might have stabbed herself on May 31, 2020, I do not accept this as it is not consistent with the evidence.

Indeed, although I accept that K.S. had thoughts of ending her life and testified to not wanting to live a life with an addicted husband, there was nothing particular that evening of May 31, 2020 that suggests she was in that state of mind. K.S.S. came to the house as he frequently did; he was under the influence of drugs and acting paranoid as he frequently did; the two argued and K.S. asked him to leave; when he returned inside the home to retrieve food she began to help him as she always did.

She also left the house once stabbed, testifying that, she became scared of K.S.S., whereas she normally was not. [ 68 ] I also reject the suggestion that if not suicidal, K.S. concocted a ploy to blame K.S.S. for self-inflicted wounds to have him incarcerated as a means of forced sobriety. K.S. was in a great deal of pain after the stabbing and not able to communicate much. Though she did have the wherewithal to tell her mother to drop the knife and take care of the children, the utterance of a lie in a situation of this magnitude is unrealistic.

Further, even if K.S. testified to having made false allegations in the past, that came after a threat to do so and without injury. Such a ploy is also inconsistent with her videotaped statement which I find very persuasive. [ 69 ] As for K.S.’s medicated state during her videotaped statement, I find K.S. responsive and inherently consistent. As for her Oath on the Bible, though K.S.’s religious practices do not include the Bible, there is no evidence before the Court as to how it was determined that she would swear on this holy book.

I note however that she provided a statement forewarned of the criminal consequences of providing a false statement such that I do not place much weight on this argument. [ 70 ] As for K.S.’s statement about it being “real quiet” before K.S.S. stabbed her, I find that this statement is not inconsistent with the evidence. The evidence is that K.S. and K.S.S. were arguing after supper and I have found that as a fact. However, before the stabbing, K.S. told K.S.S. to leave, and he did, only to return through the front door.

It was at that moment, when K.S. was getting him food to take, that K.S.S. was quiet such that there is no inconsistency and no factual error. [ 71 ] As for the location of the knife, K.S. indicated during her statement that she did not see where K.S.S. got the knife from, noting that they were usually kept in the cupboard above the microwave where she was standing. In her oral evidence, she clarified that sometimes the knives were by the sink if they had recently been used and not yet put away. There is therefore no inconsistency or

implausibility in this evidence. [72] I have also considered K.S.’s evidence of her talk with her mother prior to the statement to the effect of piecing events togetheras a result of her lack of memory. I place no weight on this statement as it is inconsistent with her videotaped statement. CONCLUSION [73] Proving an offence beyond a reasonable doubt is the Crown’s onus. “A reasonable doubt is not an imaginary or frivolousdoubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived fromthe evidence or absence of evidence.” (R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, para 39.) [74] In this case, although there were evidentiary issues related to the police investigation and K.S.’s lack of fulsome participation,the evidence demonstrates beyond a reasonable doubt that K.S.S. did commit an aggravated assault against his wife K.S. on May 31,2020. It also establishes that he breached his undertaking on that same date. As a result, I find him guilty of aggravated assault andthree counts of breaching his undertaking on May 31, 2020. “Original signed by” L. Martin P.J.