R. v. R.P., 2019 NLSC 169

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. R.P. , 2019 NLSC 169 Date : October 1, 2019 Docket : 201704G0253 Her Majesty The Queen v. R.P. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document, or broadcast or transmitted in any way. Before: Justice Brian F.

Furey Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: September 10 – 14, 2018; January 31, 2019; February 1, 2019; February 7 – 8, 2019; February 22, 2019; and July 31, 2019 Date of Oral Judgment: September 27, 2019

Summary: The Accused was charged with multiple offences against his former spouse and his three children. He was convicted on two counts of assault against his former spouse and on one count of assault against his youngest child. Acquittals were entered on the other counts.

Appearances: Trina D. Simms Appearing on behalf of Her Majesty The Queen Adam G. Baker Appearing on behalf of R.P. Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2002 SCC 40; R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v. L.S., 2018 NLSC 240; and R. v. Mah, 2002 NSCA 99. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46, as am. REASONS FOR JUDGMENT Furey, J.: INTRODUCTION [1] The Accused has been charged with multiple offences against his former spouse and his three children.

As set out in the Bill ofIndictment, the 19 Counts allege that the Accused: Count # 1 on or between the 6th day of October, 2010, and the 1st day of December, 2010 at or near the town of . . ., in the Province ofNewfoundland and Labrador, did commit an assault on L.B., contrary to

section 266 of the Criminal Code. Count #2 on or about the 14th day of May, 2013, at or near the town of . . ., in the Province of Newfoundland and Labrador, did by word of mouthknowingly utter a threat to L.B. to cause death or bodily harm to L.B., contrary to

section 264.1(1) of the Criminal Code. Count #3 on or about the 14th day of May, 2013, at or near the town of . . ., in the Province of Newfoundland and Labrador, did by word of mouthknowingly utter a threat to L.B. to cause death or bodily harm to L.B., contrary to

section 264.1(1) of the Criminal Code. Count #4 on or about the 14th day of May, 2013, at or near the town of . . ., in the Province of Newfoundland and Labrador, did in committing anassault upon L.B., cause bodily harm to her, contrary to

section 267(

b) of the Criminal Code.

Count #5 on or between the 6th day of October, 2010, and the 1st day of December, 2010 at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit an assault on L.B., contrary to

section 266 of the Criminal Code . Count #6 on or about the 26th day of June, 2015, at or near the town of . . ., in the Province of Newfoundland and Labrador, did by word of mouth knowingly utter a threat to L.B. to cause death or bodily harm to L.B., contrary to

section 264.1(1) of the Criminal Code . Count #7 on or about the 12th day of October, 2015, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit an assault on L.B., contrary to

section 266 of the Criminal Code . Count #8 on or between the 1st day of January, 2010, and the 1st day of June, 2010, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit an assault on L.B., contrary to

section 266 of the Criminal Code . Count #9 on or between the 1st day of January, 2011, and the 31st day of December, 2012, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit an assault on L.B., contrary to

section 266 of the Criminal Code . Count #10 on or between the 1st day of October, 2015, and the 8th day of January, 2016, at or near the town of . . ., in the Province of Newfoundland and Labrador, did in committing an assault on L.B. cause bodily harm to her, contrary to

section 267 (

b) of the Criminal Code . Count #11 on or between the 1st day of November, 2014, and the 11th day of November, 2014, at or near the city of . . ., in the Province of Newfoundland and Labrador, did commit an assault on L.B., contrary to

section 266 of the Criminal Code . Count #12 on or between the 1st day of October, 2005, and the 8th day of January, 2016, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit a sexual assault on L.B., contrary to

section 271 of the Criminal Code . Count #13

on or between January 1st, 2016, and the (sic) December 31st, 2016, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit a sexual assault on F.P., contrary to

section 271 of the Criminal Code . Count #14 on or between January 1st, 2016, and the (sic) December 31st, 2016, at or near the town of . . ., in the Province of Newfoundland and Labrador, did by word of mouth knowingly utter a threat to T.P. to cause death or bodily harm to T.P., contrary to

section 264.1(1) of the Criminal Code . Count #15 on or between January 1st, 2015, and the (sic) December 31st, 2015, at or near the town of . . ., in the Province of Newfoundland and Labrador, did for a sexual purpose expose his genital organs to F.P., a person under the age of sixteen years, contrary to section 173(2) of the Criminal Code .

Count #16 on or between January 1st, 2015, and the (sic) December 31st, 2015, at or near the town of . . ., in the Province of Newfoundland and Labrador, did for a sexual purpose expose his genital organs to F.P., a person under the age of sixteen years, contrary to section 173(2) of the Criminal Code . Count #17 on or between January 1st, 2015, and the (sic) December 31st, 2015, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit a sexual assault on F.P., contrary to

section 271 of the Criminal Code . Count #18 on or between January 1st, 2014, and the (sic) December 31, 2014, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit an assault on M.P., contrary to

section 266 of the Criminal Code . Count #19 on or between January 1st, 2013, and the (sic) December 31, 2013, at or near the town of . . ., in the Province of Newfoundland and Labrador, did commit an assault on F.P., contrary to

section 266 of the Criminal Code . [ 2 ] The Accused pled not guilty to all charges. [ 3 ] At the conclusion of the Crown’s case on September 14, 2018, counsel for the Accused sought a directed verdict on Count 14. Crown counsel conceded that she was not able to prove this Count beyond a reasonable doubt. I granted the request for a directed verdict and entered an acquittal on Count 14. [ 4 ] At the conclusion of the oral submissions on July 31, 2019, Crown counsel acknowledged there was no evidence to support Counts 10 and 17 and that acquittals should be entered on these Counts.

I was satisfied to do so and entered acquittals on Counts 10 and 17. the evidence [ 5 ] The Crown called 10 witnesses. These included the four complainants, the medical records supervisor, an emergency room doctor at the Western Memorial Regional Hospital, a member of the Royal Canadian Mounted Police who was involved in the

investigation of some of the allegations, the maternal grandmother of F.P. and T.P., a friend of the Accused’s former spouse, and the half-sister of F.P. and T.P. [ 6 ] The Accused testified in his own defence as well as three of his neighbours, the woman who was in a relationship with the Accused after he and L.B. separated, and two social workers from Child and Youth Services. [ 7 ] In light of the significant number of charges before the Court, I will outline the evidence received on each Count bearing in mind my findings in paragraphs 3 and 4 above.

Count 1 [ 8 ] L.B. testified that she and R.P. had an argument. She was at the top of the stairs with their son, M.P., in her arms. R.P. shoved her down the stairs going to the basement from the main level of their home. She noted there was no railing on those stairs. She thought she landed on her right side. She also thought M.P. was about three of four years of age and that this incident occurred in 2010. She knew it was before F.P. and T.P. came to live with them. She thought it was the Fall because she was doing some painting in the home and it was dark. [ 9 ] She thought her ankle was sprained.

It was swollen and she had a limp. It hurt for a few days afterwards. R.P. told her to say she did it on her way to work. She had an x-ray on her ankle a couple of days later. [ 10 ] The radiology report showing an examination date of 25-11-2010 was entered in a package of L.B.’s medical records from the Western Memorial Regional Hospital. It referred to a right ankle x-ray showing soft tissue swelling.

L.B. confirmed that the x-ray related to this incident. [ 11 ] L.B. concluded that this matter never came up again and they never talked about it. [ 12 ] On cross-examination, L.B. was shown photographs of the inside of their house. She confirmed the location of the stairs going to the basement. She acknowledged that there was a landing on the stairs and that she fell to the landing. She got up. R.P. came down the stairs and took M.P. from her. He put L.B. on a chair in the dining room to look at her ankle because she said her ankle was sore. [ 13 ] R.P. denied that he pushed L.B.

He said she slipped down the stairs on her bum. He testified he was in the kitchen area. He thought she overstepped one step, went three or four steps down on her bum, and her feet stopped at the bottom of the landing. L.B. was carrying M.P. at the time. He went down and got M.P. and brought him up the stairs. He then picked L.B. up and laid her on a chair in the dining room. He assessed her ankle to make sure everything was fine. R.P. stated that L.B. complained about her ankle but she was able to move it. After a minute of sitting on the chair, she seemed to be fine.

He thought L.B. stated afterwards that she was finding a little discomfort. He was asked whether L.B. had any trouble with her ankle after that. He said she did not complain to him. He reiterated that he did not push L.B. down the stairs, especially if she was holding his child. He said that was ridiculous. [ 14 ] On cross-examination, R.P. stated L.B. was walking down the stairs with fleece socks on. He pointed out that the picture of the steps showed that these were made of shiny birch. She slipped on her bum and went down two or three steps.

He pointed out that there was a table, a mirror, and a wall at the bottom of the landing. [ 15 ] When he checked her ankle, it was fine. He agreed L.B. got her ankle x-rayed after. She was talking about it three days later. He said to her that because she worked in the hospital she should get it checked. Counts 2, 3, and 4 [ 16 ] L.B. testified about the time R.P. allegedly hit her in the face. This happened at the couple’s home on May 14, 2013, a Tuesday, at about 8:30 in the evening. [ 17 ] She explained that R.P. worked a turn-around job. He was getting ready to fly out the next morning.

He had gone to his parents to drop off clothes for F.P. and T.P. and money for his parents because the two children lived with their grandparents when he worked out of the province. He brought the clothes to his parents on Tuesday nights because he flew out early on Wednesday mornings. That was the regular fly day for his rotations. He was gone about a half-hour. She was home with the three children. When R.P. came back, L.B. said he was cursing and swearing at his mother because his mother wanted more money. R.P. said to L.B., “You’re watching the fucking kids.” She said she was not.

This argument happened in the living room. He threw the remote control at her and dented the wall. [ 18 ] She stated that R.P. and the three children then went to bed at 8 p.m. She stayed downstairs. About a half-hour later, she was getting ready to go out the back door to smoke a cigarette. R.P. came down over the stairs. He did not say anything and she did not say anything to him. He punched her in the face. [ 19 ] She thought her jaw was broken. Her mouth would not open at all. She was on the floor. She said R.P. picked her up by her face and squeezed it, held her, and said, “I’ll fucking kill you.

You’re going to watch my kids.” She said that she would watch his children but that she needed to go to the hospital. He did let her go. She believed what he had said. [ 20 ] She drove herself to the hospital about ten minutes after being hit. R.P. stayed home with the children. He said he was not going up because he would be the first one blamed. While she was driving to the hospital, he spoke to her on her cell phone and said. “Say that you got out of the hot tub and hit your face.” When she got to the hospital, she told the staff that she got out of the hot tub and fell and hit her face.

The Outpatient Emergency Record dated 14/05/13 from the Western Memorial Regional Hospital shows that L.B. registered at 21:07. She confirmed that was the time she went to the hospital. The accident date block on the Record states: “fell on hot tub.” She did not tell the truth when she went to the hospital because she did think R.P. would hurt her more when she got back home. [ 21 ] She saw a doctor in the emergency room. He examined her and sent her for an x-ray. The doctor said there was nothing broken and she did not need a CT scan.

[ 22 ] L.B. went back to the emergency room the next day and saw the same doctor. That doctor arranged for L.B. to have a CT scan the following day. She was told to follow up with the emergency room after she had the CT scan. [ 23 ] She saw another doctor in the emergency room after having her CT scan. The Outpatient Emergency Record dated 16/05/13 states “Hit face off of hot tub 2/7 ago.” L.B. said she told the doctor that when he did her history because she was continuing on with the lie.

It was out of fear even though R.P. was in Alberta on May 16. [ 24 ] LB. stated that R.P. flew to Alberta the next morning after he hit her face. She said her mother flew out on the same flight with him because he stopped and picked her up that morning. [ 25 ] The doctor who did the CT scan explained the results to her. Her sinus cavity was broken. All the bones on the lower part of her eye were broken. The bones holding the muscles to her eye were fractured. That doctor contacted a plastic surgeon at the Health Sciences Centre in St. John’s and set up a referral. [ 26 ] L.B. had to get to St.

John’s within 48 hours and have surgery due to the high risk of infection. She could not fly. She arranged to drive there. She asked her sister to go with her. She had several of her nieces stay with the children. She had been the previous two days at home managing by herself with the children. She told the children she had to see a doctor in St. John’s because her face was broken. She told them she had fallen out of the hot tub. She and her sister left Corner Brook that evening to drive to St. John’s. When she met the doctor in St. John’s the next day, he examined her and explained everything.

He asked her what had happened. She said that she fell referring to the hot tub. [ 27 ] She had her surgery on the Saturday following the incident and returned home late on Sunday. She had a follow-up with the doctor in July. [ 28 ] L.B. took pictures of how her face looked from the night she got hit until June of that year. She said when R.P. came back from Alberta he deleted a number of the pictures. She had saved some others in text messages. She was asked why she took the pictures. She explained that she wanted to see the progress and she wanted proof in case she ever needed it.

A package of photographs taken by L.B. was entered as an exhibit. [ 29 ] L.B. stated she never told anyone about this until she told her sister (who was the person who drove to St. John’s with her) during Thanksgiving 2015. [ 30 ] On cross-examination, L.B. said she was turned when R.P. punched her. [ 31 ] It was put to L.B. that one of the medical records stated she fell and hit her face on a fence attached to a hot tub. She was shown a picture of R.P. and the three children in a hot tub.

She confirmed that she took the picture and that it showed the railing to the patio. [ 32 ] L.B. confirmed that she emailed the pictures of the injuries to her face to the police officer who had taken a statement from her in June 2017. She sent those pictures after she gave her statement. [ 33 ] It was put to L.B. that what happened when she hurt her cheekbone was that she actually fell in the tub. She denied that and said that R.P. punched her in the face. [ 34 ] R.P.’s counsel suggested to L.B. that R.P. was already in Alberta at the time she fell down. She said that was wrong and that R.P. was home.

She continued that R.P. flew out the next day and that he actually picked her mother up and brought her to the airport with him. [ 35 ] T.P. testified that he remembered a time when L.B. fell down and hurt herself. He said his father left the day before to go to work. The next morning he and the other two children were told by L.B. that she fell down. He said L.B.’s face was swollen and she could not really talk. She could barely open her mouth. He was asked if there was anyone else around when he got up. He replied that L.B. had called her niece and another person who he did not know. [ 36 ] Dr.

Brent Thistle was the doctor in the emergency room who L.B. saw when she went to the hospital on May 14 and May 15, 2013. He explained the practice in the emergency room and commented on a number of L.B.’s medical records when she was seen at the hospital regarding her facial injury. Counsel for R.P. asked Dr. Thistle if the injury described in the medical reports was consistent with somebody falling and hitting themselves on a fence post.

He replied that it would not be outside the realm of possibility to sustain such an injury by falling down and striking one’s face hard against a surface and that it would take a solid object. [ 37 ] R.P. was asked by his counsel what he knew about the time L.B. fell down or the time when she broke her cheekbone. He replied he was in Alberta working and received a call saying she broke her cheek. It was in Surmont, south of Fort McMurray. He had started that job the week L.B. was injured. He went to his employer and explained that he needed to go home because of a serious injury.

He stated that was getting texts and telephone calls from L.B. She told him that she had fallen and hurt herself in the hot tub. She had gone to the emergency room at the hospital. The next day she told him that there were more issues and she thought she might have to go to St. John’s. He told her that he was going to come home. She replied that she had Crystal and Danielle watching the children. [ 38 ] He said he still wanted to come home. He went to his boss and told him he wanted the company to fly him back home but the company would not do that. He would have to pay out-of-pocket which would be about $5,000.

His job steward suggested he get a ticket and the union might be able to raise $1,500 to $2,000 toward the cost after he came back. He would not get reimbursed for all of it so he worked his turnaround and came home. [ 39 ] By then, L.B. had her surgery in St. John’s and had come back to Corner Brook. He and L.B. had communicated by phone during this time. On the day of her surgery, he said L.B. was talking to him and telling him that everything was going to be fine. [ 40 ] R.P. was shown the picture of him and the three children in a hot tub. He identified the hot tub as the one at his home. He was

asked if he had any knowledge of whether L.B. had fallen and hit any part of the hot tub. He said that as she described it to him, when getting out of the hot tub she fell and hit the post closest to the house. [ 41 ] R.P. said the first time he heard the allegation that he had punched L.B. in the face was when he was arrested.

He said he did not understand why the story was changed. [ 42 ] He stated that there was no argument with L.B. about her watching his two children, F.P. and T.P., because she had been watching them for a year and a half before this. [ 43 ] On cross-examination, R.P. testified that he never punched L.B. in May 2013. He was away at work when L.B. was injured. He had left the day before. He was asked if he normally flew on Wednesdays.

He responded that over the last eight years of flying back and forth to Alberta, there were times that he left on Mondays, Wednesdays, Thursdays, and Fridays depending on the job situation. He said it was never just Wednesdays for eight years. He confirmed that he stayed for his shift. L.B. told him that it was not that bad and that the children were in good care with Crystal and Danielle. He talked to L.B. on a daily basis. She made it sound that it was perfectly fine for him to stay even though he wanted to come home.

He denied that L.B.’s mother flew up with him the next day after the incident. [ 44 ] It was put to R.P. that there were two times in May 2013 when he threatened L.B. He was asked if he threatened to kill her. He stated that he did not threaten to kill her. Count 5 [ 45 ] L.B. described an incident around R.P.’s 40th birthday, which was October 6, 2010, and they were planning a party. She testified they got into an argument which she believed was about money.

She said R.P. flipped out, grabbed her by the hair, threw her into the blinds by a window in the kitchen, banged her head, and punched her in the back a couple of times. After the incident, they were going to cancel the party but then decided to go ahead. L.B. said she had some bruising on her back that nobody would have seen and bumps on her head. [ 46 ] After that, L.B. left the house. She picked up her friend, A.B. (now A.N.). L.B. was very upset. She and A.N. went for a drive.

She told A.N. that she and R.P. had gotten into an argument and he shoved her. [ 47 ] In her testimony, A.N. acknowledged L.B. had picked her up in her car. She said L.B. was crying over an incident that happened at her home. She described L.B. as being extremely upset, hysterically crying. She remembered the conversation occurred in L.B.’s car on or around R.P.’s birthday in the Fall. She could not remember the year. [ 48 ] On cross-examination, A.N. confirmed that she told the police in a statement that L.B. and F.P. had a strained relationship.

She thought a lot of L.B.’s and R.P.’s fights were over the relationship between L.B and F.P. She never witnessed any fights between them. Any knowledge she had of anything between L.B. and R.P. related to what she might have been told by L.B. She had not seen anything herself. She also confirmed that she told the police in a statement that L.B. had told her that R.P. had broken several of her fingers. [ 49 ] On cross-examination, R.P. was asked if he remembered L.B. testifying about this incident. He acknowledged that he remembered her talking about it. He said it never happened.

He did not remember an incident around his 40th birthday when L.B. would have left the home and ended up talking to A.N. He stated that he never physically hit L.B. nor pulled her hair. Count 6 [ 50 ] L.B. testified about an incident on June 26, 2015, the couple’s wedding anniversary. They were driving to a restaurant outside of Corner Brook for supper. L.B. told R.P. about her niece being accepted into a Bachelor of Nursing program. L.B. said her niece mentioned about L.B. helping her.

L.B. stated that R.P. said, “You’re not fucking helping her.” [ 51 ] L.B.’s sister had also bought a new trailer that day and placed it at a park not far from the restaurant. L.B. and R.P. went to visit there for about an hour. [ 52 ] When they were driving back to their home, L.B. testified that R.P. said again “You’re not fucking helping her.” L.B. said to him that she was going to help her out. L.B., who was driving the vehicle, stated that R.P. then hit her in the face with his full hand. She put the car in park, got out, and ran. She started to run towards her niece’s house which was in that area.

She ran into a ditch and hid there. She said R.P. drove back and forth the road five or six times and kept calling her cell phone. She ended up staying at her niece’s home for the night. [ 53 ] R. P. and the children picked her up the next day, June 27. L.B. testified there was no mention made of what happened. She said to R.P. that she was done, she wanted a divorce, the house was going to be sold, and this was over. She stated R.P. said, “You’re not leaving me. We’re not getting a divorce.

We’re not selling the house, and I’ll fucking kill you.” [ 54 ] On cross-examination, L.B. repeated what she stated in the previous paragraph about what R.P. had said to her when he came to pick her up on June 27. [ 55 ] R.P. was asked by his counsel whether, over the course of the entire relationship, he had ever threatened L.B. or she had ever threatened him. He did not remember ever threatening her. [ 56 ] R.P. testified that he never struck L.B. while she was driving the car.

In response to a question from his counsel about the incident L.B. had described (where she was struck in the vehicle and she got out and hid in the ditch and then went to her niece’s place), R.P. responded that this never happened. It was a fabricated story. [ 57 ] On cross-examination, R.P. denied that he struck L.B. in the car and that L.B. got out of the car.

Count 7 [ 58 ] L.B. described an incident on Monday during Thanksgiving 2015. She remembered the time because her best friend had gotten married that weekend. They had finished turkey dinner. She was doing the dishes. She splashed F.P. with water, not intentionally. She said F.P. rolled her eyes at her and she told her not to roll her eyes. F.P. slapped L.B. in the arm. L.B. then told F.P. not to hit her again. She raised her voice at F.P. Then, R.P. came into the kitchen.

L.B. stated that R.P. grabbed her by the top of the hair and started yanking her around like a rag doll from one end of the house to the other. He would not let her go. She said R.P. had a hold of her hair for about five minutes. He told her not to hit his daughter. She told R.P. that F.P. had hit her. She said to R.P. that they were all nuts and that was why she was leaving. [ 59 ] She went and got her bag, her purse, and keys. R.P. grabbed her again in the front porch, squeezed her by the face, pinned her against the wall, and was cursing and swearing at her. He said she was not going anywhere.

He took her purse, bag, and keys and threw them towards the stairs. Some went downstairs and some went down the hallway. He told her to get back in the kitchen. She got to the kitchen door and ran out of the house to a friend’s house down the street. She asked to use their phone. She said she was upset and embarrassed. [ 60 ] On cross-examination, L.B. stated that her sister had gone to the house after and retrieved her belongings, including her keys and her phone. [ 61 ] M.P. testified that he and T.P. were out walking their dog. M.P. walked into the house. F.P. and his mother were doing the dishes.

He saw his father come downstairs and punch his mother. Then his mother went walking down the road. The next day he saw his mother on FaceTime at his aunt’s. [ 62 ] On cross-examination, M.P. said that when he came in the house, his mother and father were upstairs screaming. He heard his mother say that she was leaving. He and T.P. went back out to walk the dog. As they were going down the road, his mother was going down the road to her friend’s house. [ 63 ] R.P. testified that this incident occurred when L.B. got into an argument with F.P. The two of them were doing dishes and he heard a big scream.

He went to the kitchen. F.P. was crying, holding her arm, and shaking and trembling. F.P. told him that L.B. punched her in the arm. L.B. replied that F.P. was lying, that she did not punch F.P. and that F.P. slapped her. L.B. said to him that he was always picking up for F.P. He said that L.B. stormed out of the house. About an hour after that, L.B.’s sister came for L.B.’s purse and keys and stuff. He thought L.B. came back to the house the next day. [ 64 ] On cross-examination, R.P. denied that he came in the kitchen and grabbed L.B.’s hair.

He went over and tended to his child who was crying because she was just struck by L.B. He acknowledged that he did not see L.B. hit F.P. He did see the red mark on F.P.’s arm and she was crying and shaking. He agreed that L.B. left the house and that she came back on her own the next day. When L.B. left, R.P. said that she was screaming as she walked to the door. Counts 8 and 9 [ 65 ] L.B. testified about an incident where she and R.P. had an argument. She had no idea what the argument was about. R.P. had her on the floor in the living room. The three children were there.

She was in the fetal position in order to protect her head. He was kicking her, hauling on her hair, and slamming her into the floor. He was squeezing her face. She said she begged the kids to call 911. None of them moved. She initially did not know what year this incident happened. She then testified that F.P. and T.P. started living with them in February 2011 and that this happened before F.P. and T.P.’s teenage years. [ 66 ] R.P. did not testify to these specific counts. During cross-examination, he stated that he had never physically hit L.B. and that he had never pulled her hair.

Count 11 [ 67 ] L.B. described an incident after leaving the Kent building supply store in Corner Brook. She and R.P. had gone there to buy some building supplies. As they were proceeding down the Lewin Parkway, R.P. hauled off and whacked her in the face, breaking her glasses. She said R.P. threw the glasses. They hit the window and were broken. She confirmed that R.P. was driving and that the children were not with them. She was asked what it was about. She said it was probably because she said the wrong thing or because she did not bark and answer his command.

She said this occurred in the Fall of the year in either 2013 or 2014 but she was not one hundred percent sure. [ 68 ] On cross-examination, R.P. denied that he struck L.B. in the face when they were in their vehicle. He did not recall the incident Crown counsel was speaking of. [ 69 ] On re-examination, R.P. was asked if he recalled any incident around when they were leaving the Kent building supply store. At first, he said that they never argued leaving Kent. He acknowledged he had been to Kent many times because he built the house.

He concluded that he did not remember or recall the incident or anything about it. Count 12 [ 70 ] L.B. testified that she was in relationship with R.P. for almost ten years and married for five years. They started dating in October 2005. She stated that she was forced to have sex against her will on many occasions. R.P. felt he deserved oral sex every day. Sometimes she would say no and he would continue anyway forcing himself on her. She said intercourse occurred every day because he wanted it every day. She told R.P. more than once that “This is rape. What you’re doing is wrong.

I don’t want to have sex with you. I shouldn’t be made to have sex with you.” She said he would force his penis in her mouth and he would force his penis in her vagina. Other times she would just put up with it. She acknowledged that there were times in their relationship that the sexual contact was consensual. She said she was willing to have intercourse about half the time it occurred. She said she willingly performed oral sex less

than half the time. Consensual sex was different than when it was not. Sexual touching that was not consensual started after M.P.’s birth in April 2007. She said non-consensual touching ended after she left the relationship in January 2016. She stated that she did not have a relationship with R.P. after she left. [ 71 ] On cross-examination, L.B. was asked to clarify what she meant when the sexual contact was consensual versus when it was non-consensual. She replied that if she was interested in it and wanted it, it was consensual. If it was forced on her and she was not interested in it, it was not consensual.

She continued that R.P. knew the difference and he did not care. [ 72 ] She stated that she did not have any intimate relationship with R.P. after they separated on January 8, 2016. She did have some contact with him after that because she was just trying to get along for the sake of M.P. [ 73 ] R.P. was asked by his counsel if he ever had any sexual contact with L.B. that was not consensual. He replied that he did not. He stated that they spent a lot of time apart when he was working away from Newfoundland and Labrador. When they were together, they had a healthy relationship.

Nobody was forcing anybody to have sex. When he came home, L.B. had her sexual desires. He was not forcing himself on her. He was asked how often he and L.B. had sex. When he worked a 14/7 shift, he was home for five nights. They would have sex for each night he was home. He was asked if he recalled any time when he wondered whether he had L.B.’s consent. He replied, “Absolutely not.” L.B. was seven years younger than him. She enjoyed sex a lot and it was easy to tell. [ 74 ] On cross-examination, R.P. stated that after the separation in 2016, L.B. visited him many times when he lived at their home.

He thought they would reconcile because they were having sex on a weekly basis one or two times. R.P. also testified that when they had intercourse or when L.B. performed oral sex on him, it was consensual. Count 13 [ 75 ] F.P. described an incident she said occurred when she and her father, R.P., were in his bed. This was at the new home R.P. built after he and L.B. separated. She did not remember the date but she said she was probably 15 years of age. She thought she was in school at the time. She agreed that she started Grade 10 at the Regional High School.

Her father asked her to sleep with him because he was lonely. He wrapped his arm around her and he tried to put his hand down her pants. She pushed his hand away. She said she was wearing pyjama pants and a t-shirt. He did not ask her if he could put his hands in her pants and she did not ask him to do it. R.P. got up and went to the bathroom, came back to bed, and said he was sorry. She confirmed that this only happened once. The next morning he told her not to tell anyone because it was wrong.

She said she would not. [ 76 ] On further questioning, F.P. stated that she began to send Snapchat messages to her grandmother in the beginning of the school year when she was in Grade 10. In a Snapchat conversation dated January 26 at 5:45 p.m., F.P.’s grandmother wrote to her, “Tell me how long ago that he touched you sexually?” F.P. replied, “Like four months ago or more.” [ 77 ] On cross-examination, F.P. stated there may have been other Snapchat messages with her grandmother before the ones in the exhibit that was filed with the Court. She was not sure how long before these were sent.

She did not talk to her grandmother on the phone or text her. She did speak to her half-sister, J.B., when she visited Newfoundland and Labrador during Christmas 2016. She reiterated that she sent a message in the beginning of the school year. She said she did not really remember. [ 78 ] On cross-examination, F.P. stated that when she was lying on the bed, her back was facing her father. She said that her father moved his arm down in her pants but then she pushed it away. She was asked how old she was when this happened.

She replied that she was not sure but that it was before she left so 15 or 16. [ 79 ] L.C. is F.P.’s maternal grandmother. She had Snapchat conversations with F.P. She identified the Snapchats between F.P. and her. She stated the Snapchat dated January 26 occurred in 2017. She had asked her other granddaughter, J.B., who came to Newfoundland and Labrador in December 2016, to speak to F.P. J.B. had a conversation with F.P. who said a few things. Then, L.C. started a Snapchat conversation with F.P.

She confirmed that she was in the Snapchat conversation with F.P. and she screenshot some of the messages. [ 80 ] On cross-examination, she stated it was after February 2017 when she gave copies of the Snapchat conversations to the police. She agreed there were probably more Snapchat conversations than what was included in the package filed with the Court. She stated that F.P. first indicated to her that she wanted to move to Alberta when L.C. was in Newfoundland and Labrador in September 2016. [ 81 ] J.B., F.P.’s half-sister, testified that she visited Newfoundland and Labrador in December 2016.

She saw F.P. and T.P. when she took them out to lunch and supper. She discussed a conversation she had with F.P. with her grandmother, L.C., and her own mother after she had met F.P. [ 82 ] On cross-examination, J.B. stated she did not have a chance to speak to F.P. alone while she was in Newfoundland and Labrador. She said she was the one who sent the Snapchat images to her grandmother. Some of those were from her and F.P. that she sent to L.C. She sent these to the police shortly after her trip to Newfoundland and Labrador.

She agreed L.C. wanted her to check on F.P.’s and T.P.’s welfare and to make sure they were okay. [ 83 ] On re-examination, J.B. stated that she sent her Snapchat conversation with F.P. to her grandmother and then she went to the police station in Edmonton, Alberta and gave them to the police. She testified that the Snapchat messages that were filed with the Court were between F.P. and L.C. These were not part of her conversation with F.P. [ 84 ] R.P. denied that he asked F.P. to get in bed with him and that he touched her. The kids had their own rooms at that point.

There were three bedrooms upstairs and that is where they slept. He had his, F.P. had hers, and T.P. had his. [ 85 ] R.P. testified that the first time that he heard of this allegation was when he was told by a social worker with Child and Youth Services that F.P. was making allegations that he rubbed her leg. This was some time after he had been told by Child and Youth Services that F.P. was making allegations that he had gotten into the shower with her. In his mind, he was not sure where this was going to go. He

said if he did not let F.P. go to Alberta, then the allegations would just keep adding on. He then gave his consent for F.P. to go back to Edmonton with her grandmother. [ 86 ] R.P. also stated that he was dating M.S. when he lived in his new house and she stayed over at times. He was not lonely because he was in a relationship. [ 87 ] On cross-examination, R.P. denied that he touched F.P. He said it did not happen. He pointed out that he had a girlfriend before F.P. even talked about that. He knew F.P. wanted to go to Alberta because she told him she wanted to go.

He believed she made up the allegations because she hated her life in Newfoundland and Labrador. Counts 15 and 16 [ 88 ] F.P. testified that a few years ago she was in the shower and her father came in to the shower. That shower was upstairs in the first house the family lived in. She was asked if she remembered when it happened. She replied that she was 15. She, her brother, T.P., her father, her step-brother, M.P., and her step-mother, L.B., lived there. It happened before Christmas when she was in school. She said she was showering. Her father was not wearing anything. She saw his penis.

She said he had an erection. He did not touch her. He came in and showered too. They were in the shower together for one minute. She finished washing her hair and got out. She said she was scared. She did not want anything to happen. When she got out, she got dressed. She did not ask him to come into the shower and she did not want him to come into the shower. He did not ask to come into the shower. Neither she nor her father ever spoke about this after. [ 89 ] F.P. testified that a second similar incident happened. She did not remember when it happened but later she said it was after Christmas.

She initially said she was 16 years old at that time. On further questioning, F.P. said she thought she was 15 years old. F.P. stated that her father came into the shower when she was showering. He was not wearing anything. She did not ask him to come in and he did not ask her if he could come in. He did not touch her. He did not say anything to her about it and she did not say anything to him about it. [ 90 ] F.P. stated that she was in contact with her maternal grandmother, L.C. She texted L.C. about her father. Her grandmother sent the text to the Royal Canadian Mounted Police.

A police officer and a social worker interviewed her at her school. Initially, F.P. denied what she said to her grandmother was true because she was scared she would get in trouble with her father. Then, she told them it was true. F.P. continued that she told her grandmother about her father and that she wanted to move to Edmonton with her. She told about her father and about the shower, that he would always make her do the chores and stuff, and that she did not like the school she was going to. [ 91 ] On cross-examination, F.P. confirmed that she wanted to leave Corner Brook because of school.

She used to get bullied. When interviewed by a police officer and a social worker initially, F.P. said she lied about Snapchat messages and her conversation with her half-sister. She then changed her answers and said, “I just thought I should tell the truth.” [ 92 ] On further cross-examination, specifically related to these two counts, F.P. stated the shower was at the first home where the family lived. There was more than one shower in the house. It was the shower in her father’s bathroom upstairs. She was asked if she would normally shower in her father’s shower.

She replied that she would when her brother was in the other shower. [ 93 ] R.P. testified that he first heard about the allegations under these Counts when he was contacted by a social worker with Child and Youth Services. The social worker told him that F.P. had said that he had gotten into a shower with her. He told the social worker that this never happened. [ 94 ] He stated there were two bathrooms with showers upstairs in the house he shared with L.B. and the three children. There was a bathroom off the master bedroom. He and L.B. used that bathroom.

There was a second bathroom off the main hallway on that floor. The family called it the purple bathroom because the walls were a purple colour. F.P. would shower in the purple bathroom. He never showered in the purple bathroom. He said that F.P. never showered in his and L.B.’s bathroom. [ 95 ] He was asked whether F.P. ever showered in the bathroom off the master bedroom if someone was using the purple bathroom. He replied, “No.” He explained that if L.B. ever saw F.P.’s hair in their shower, she would have lost her mind.

Nobody was allowed in that shower. [ 96 ] He also stated that after L.B. left their house, he took a shower at his place of work because he smelled of the workplace. When he came home, he was already showered. In response to a question from his counsel if he ever entered a shower with F.P. while she was in there, R.P. stated that was ridiculous. [ 97 ] On cross-examination, R.P. reiterated that he had never gotten in a shower with F.P. anywhere.

Count 18 [ 98 ] M.P. stated he was 11 years old when he gave his evidence on September 11 – 12, 2018. [ 99 ] He testified that he, F.P., and T.P. were helping with the wood. He decided he needed a break. He went in the house and sat down. He said his father came in, pulled down his pants, and smacked his bum. He said it hurt. Then, his father pulled him by his ear out to the driveway to help pack the wood. He did not want his father to do that. He had his headphones on. He knew his father yelled at him and told him to get back out there.

He did not say anything to his father when this happened because he was scared. He told his mother after his father left. [ 100 ] M.P. said they had a furnace at the house where they lived. His father would cut up the wood and after school they would help pack it in the garage and basement. He said that he and T.P. packed the wood in a tote to go to the garage. They brought it over to F.P. who packed it up. Then they would grab another tote and fill that one up. [ 101 ] He initially said he was around seven, eight, or nine years of age. He later said he was eight years old. He was probably in Grade

3. He thought this happened about four years ago. [ 102 ] On cross-examination, M.P. said all of them (he, his brother, his sister, his father, and his mother) were outside helping to pack wood. He said he was upset when his father pulled him by the ear. He described what everyone was doing. His father would cut up the wood and his mother would hand it over to T.P. He and T.P. would put it in the tote and bring it over to F.P. She would pack the wood in the garage. [ 103 ] He confirmed that he told his mother about this.

He did not know if she spoke to his father. [ 104 ] M.P. was asked about the statement he gave to the police officer on February 2, 2017. He had previously said that some of it was wrong. In that statement, there were several questions about M.P. and his father. He said he answered “No” to the first question about whether his father had ever hit him. He told counsel for the Accused that was one answer that was wrong. The second question that the police officer asked was whether his father ever grabbed him by the ear. M.P. answered “No.” M.P. said that was one of the things that was wrong with his statement.

He said his initial statement to the police officer was wrong because he thought his father was going to see it and he would get in trouble. [ 105 ] T.P. testified that their first house had a wood stove. He was asked if he and his siblings ever did chores. He responded that they helped out. He also said that M.P. never had to do chores around the house. [ 106 ] R.P. was asked by his counsel if he had ever assaulted M.P. or struck him in a way that was not for discipline. He stated that he did not discipline his children physically.

If he needed to discipline them, he did so vocally or took their phone or their Xbox or whatever it needed to be. He was asked if he ever had M.P. outside doing chores with him to pack wood. He responded that M.P. would not be packing wood at six and seven years of age. He said the children would not be in the driveway or even be around when he was using a chainsaw to cut up wood. [ 107 ] On cross-examination, R.P. was asked about M.P.’s testimony that he smacked M.P.’s butt and pulled on his ear. R.P. responded that this did not happen.

He stated that he never smacked his child and that M.P. was never forced to pack up wood. He was a youngster basically six or seven years old. R.P. said M.P. might have been watching him but he was not packing wood. Count 19 [ 108 ] F.P. described an incident when she first moved to Newfoundland and Labrador. She was in Grade 4. She testified that she, T.P. and M.P. were downstairs playing a game. She and T.P. were fighting. M.P. yelled at them to stop. R.P. came downstairs. She said he grabbed both of them by their hair, lifted them up, and threw them to the wall. She was not hurt.

She did not consent to her father grabbing her hair or throwing her. She did not say anything to her father when this happened. [ 109 ] On cross-examination, F.P. stated that she and T.P. were fighting by hitting each other back and forth. Her father picked her up by the hair and threw her against the wall. She did not have a bruise but she hit her head. [ 110 ] T.P. testified that he and F.P. were playing. He won the game and she was a poor sport. They got into a fight. She hit him and he hit her back. Their father came down to the basement.

He told them they should stop and that they were going to hurt each other. He guided them away from each other. T.P. said his father put his hands between F.P. and him and separated them and he disagreed with F.P.’s testimony when she said that their father grabbed both of them by their hair. He also stated that M.P. was not around. [ 111 ] L.B. testified about F.P. and T.P. being down in the playroom. They got into a spat. L.B. and R.P. were in the living room. R.P. went downstairs. When L.B. went downstairs, she said R.P. had F.P. by the head of hair.

He was pulling her around the room, shoved her up against the wall, and was yelling and screaming at her and T.P. She recalled lots of hair on the floor because R.P. made her clean it all up. Both F.P. and T.P. got in trouble and were sent to their rooms. [ 112 ] On cross-examination, L.B. stated that when she went downstairs R.P. was hauling F.P. around by her hair like a ragdoll. There was hair everywhere over the playroom floor. He shoved her into the wall.

T.P. was there because R.P. was yelling at him. [ 113 ] R.P. testified that he remembered the testimony F.P. gave about she and T.P. fighting in the basement and then being hit by him. He stated that M.P. was having a nap. He and L.B. were on the main floor of the house. He heard the children screaming at each other and then he heard them punching each other. L.B. told him to deal with it. When he got downstairs, they were holding onto each other whacking and smacking. He went and separated them. He told them that they were not in Edmonton and that they could not go hurting each other like this.

They stopped and then they started playing a game again. He said this happened the first month they came to Newfoundland and Labrador. [ 114 ] On cross-examination, R.P. stated that he did not grab F.P. by the hair. He never smacked his children because he did not believe in it. He did raise his voice at times. the law Criminal Code [ 115 ] The Accused has been charged with offences under sections 266 , 264.1(1) , 267 (b), 271 , and 173(2) of the Criminal Code , R.S.C. 1985, c. C-46 , as am. [ 116 ] The essential elements of the offence of assault are: a.

That the accused intentionally applied force to the complainant; b. That the complainant did not consent to the force that the accused intentionally applied; and

c. That the accused knew that the complainant did not consent to the force the accused intentionally applied. [117] The essential elements of the offence of uttering a threat are: a. That the accused made a threat; b. That the threat was to cause death or bodily harm to the complainant; and c. That the accused made the threat knowingly. [118] The essential elements of the offence of assault causing bodily harm are: a. That the accused intentionally applied force to the complainant; b. That the complainant did not consent to the force that the accused intentionally applied; c.

That the accused knew that the complainant did not consent to the force that the accused applied; and d. That the force the accused intentionally applied caused the complainant bodily harm. [119] The essential elements of the offence of sexual assault are: a. That the accused intentionally applied force to the complainant; b. That the complainant did not consent to the force that the accused intentionally applied; c. That the accused knew that the complainant did not consent to the force that the accused intentionally applied; and d.

That the force that the accused intentionally applied took place in circumstances of a sexual nature. [120] The essential elements of the offence of exposure are: a. That the accused intentionally exposed his genital organs to the complainant; b. That the complainant was under the age of 16 years; and c. That the accused knew that the exposure of his genital organs took place in circumstances of a sexual nature. Onus and standard of proof [121] The Accused is presumed innocent. The burden never shifts to the Accused.

The Crown must prove its case beyond a reasonabledoubt that the Accused committed the offences with which he is charged. [122] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada indicated that proof beyond areasonable doubt “does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it imaginary or frivolousdoubt.” In R. v. Starr, 2002 SCC 40, the Supreme Court of Canada described the level of proof required from the Crown “falls muchcloser to absolute certainty than to a balance of probabilities.” [123] The Accused testified in this trial.

The well-established principle set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R.742 must be considered. In that decision, the Supreme Court of Canada has provided guidance to trial judges when an accused persontestifies. [124] In R. v. L.S., 2018 NLSC 240, Murphy, J. stated as follows in paragraphs 33 – 35: [33] Finally, since the Accused testified in respect of the offence and denied the facts relied on by the Crown in support of the chargethen credibility is a very important issue to be considered. The leading case in providing guidance on how to deal with the issue ofcredibility in a case such as this is R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. At paragraphs 10 and 11 of that decision itwas stated: 10 In a case where credibility is important, the trial Judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial Judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, thetrial Judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979, (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357 [1988] 2 S.C.R.]. 11 Ideally, appropriate instructions on the issue of credibility should be given not only during the main charge, but on any recharge. Atrial Judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [34] In R. v.

H. (C.W.) (1991), (BC CA), 3 B.C.A.C. 205, 68 C.C.C. (3d) 146, a case where credibility was a criticallyimportant issue as it is in this case, Wood, J.A. for the British Columbia Court of Appeal recommended adding a fourth component to thesuggested approach in R. v. W. (D.).

He said: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If after a careful consideration of all of the evidence you are unable to decide whom to believe, you must acquit. [35] I agree with Wood, J.A. on the adding of this fourth component to the suggested approach from W.(D). [125] As the trial judge, I must first ask myself whether I believe the testimony of the Accused. If so, the Accused must be acquitted. IfI do not believe the testimony of the Accused but I am still left with a reasonable doubt by it, the Accused must be acquitted.

If I am notleft with a reasonable doubt by the testimony of the Accused, then I must decide whether the evidence that I do accept proves beyond areasonable doubt that the Accused is guilty of the offences. [126] The Court must consider all of the evidence presented at the trial in reaching its conclusion as to whether or not the Crown hasproven its case beyond a reasonable doubt. The Court may accept all, some, or none of a witness’s testimony.

In deciding what evidencethe Court is prepared to accept, the Court is required to assess the credibility of the witnesses. [127] I also note the comments of Cromwell, J.A. (as he then was) in R. v. Mah, 2002 NSCA 99 as quoted by Murphy, J. in R. v. L.S. inparagraph 40. Cromwell, J.A. stated the following at paragraph 41 of R. v. Mah: 41 The W.D. principle is not a “magic incantation” which trial judges must mouth to avoid appellate intervention. Rather,W.D. describes how the assessment of credibility relates to the issue of reasonable doubt.

What the judge must not do is simply choosebetween alternative versions and, having done so, convict if the complainant’s version is preferred. W.D. reminds us that the judge at acriminal trial is not attempting to resolve the broad factual question of what happened. The judge’s function is the more limited one ofdeciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745; S.C.J. No. 57 (Q.L.) at 756.

As Binnie, J. put it in Sheppard, the ultimate issue is not whether the judgebelieves the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminal trial isnot credibility but reasonable doubt. position of the parties [128] Crown counsel submits that there is an overwhelming amount of evidence that proves beyond a reasonable doubt that theAccused committed the offences against his former spouse, his daughter, and his younger son, and that he should be convicted.

TheCrown submits that the Accused lied in his evidence and that the Accused’s evidence failed to raise a reasonable doubt. [129] The Accused’s counsel submits that the Accused was a consistent and credible witness. Counsel suggested that the Crown’s caseis not sufficiently compelling to establish guilt on the part of the Accused on the requisite standard of proof required to enter convictionsand requests that acquittals be entered. analysis [130] R.P. and L.B. began their relationship in October 2005. They lived in Alberta. They had a son, M.P., in April 2007.

They movedback to Newfoundland and Labrador in the Spring of 2008. R.P. also had two other children, F.P. (born in June 2001) and T.P. (born inJuly 2003). Those two children moved to Newfoundland and Labrador in the winter of 2011 to live with their father and L.B. Theirarrival in Newfoundland and Labrador caused difficulty between R.P. and L.B. The five of them lived as a family until January 8, 2016when L.B. left the relationship with R.P. and also took M.P. with her.

F.P. left Newfoundland and Labrador in March 2017 and returnedto Alberta to live with her maternal grandmother. [131] This family was one with a number of challenges. They appear to have had difficulties over parenting, relationship, and financialissues. The evidence presented to the Court was certainly very different and conflicting. [132] I set out the evidence on each Count above. I propose to review each Count bearing in mind that the onus is on the Crown toprove each charge beyond a reasonable doubt. Count 1 [133] This Count alleges an assault by R.P. on L.B. between October 6 and December 1, 2010.

[ 134 ] L.B. stated that, following an argument between the couple, R.P. pushed her down the stairs to a landing leading to the basement. Their child, M.P., was in her arms. It happened before F.P. and T.P. came to live with them. Her right ankle was injured as confirmed by an x-ray on November 25, 2010 showing soft tissue swelling. [ 135 ] R.P. denied that he pushed L.B. especially if she was holding his child. He stated she was carrying M.P. down the stairs when she slipped. She was wearing fleece socks. He went down the stairs, picked up M.P., and brought him upstairs.

Then, he picked up L.B., brought her upstairs, and checked her ankle. He thought it was fine. After L.B. expressed some discomfort several days later, he suggested that she should get it checked at the hospital where she worked. He was aware L.B. did get an x-ray on her ankle. [ 136 ] The evidence of R.P. and L.B. is similar in many respects.

Where this evidence differs is significant in that L.B. stated she was pushed by R.P. and R.P. stated she slipped on the step and fell. [ 137 ] The evidence of both L.B. and R.P. is believable; however, I find that R.P.’s evidence is certainly plausible and raises a reasonable doubt in my mind. He testified that L.B. was wearing fleece socks at the time. The stairs shown in one of the pictures entered into evidence were made of a very shiny wood. The combination of fleece socks and shiny wooden stairs can certainly be dangerous.

I also note that R.P. was very adamant that he did not push L.B. over the stairs especially if she was holding his child. At the time, M.P. was the only child who was living with R.P. and directly in his life as his two older children were still living in Alberta. [ 138 ] Based on my review of the evidence presented, I find that the Crown has not proven this charge beyond a reasonable doubt. The Accused is acquitted of this charge.

Counts 2, 3 and 4 [ 139 ] These Counts allege that on or about May 14, 2013, on two occasions, R.P. knowingly uttered a threat to L.B. to cause death or bodily harm to her and that R.P. assaulted R.B. causing bodily harm to her. [ 140 ] L.B. stated that on May 14, 2013, she and R.P. had an argument about her watching his two older children, F.P. and T.P., when he went to Alberta to work. She said she was not doing that. About an half an hour later, R.P. came back to the kitchen area of the house, approached her, and punched her in the face.

She said he also told her he would kill her and that she was going to watch his children. She believed what he said. [ 141 ] She went to the Western Memorial Regional Hospital. On the way, she said R.P. called her and told her to say that she was getting out of the hot tub and hit her face. She told the staff that. Over the next few days, she went to the hospital and had an x-ray and a CT scan on her face. She was referred to a plastic surgeon in St.

John’s for surgery which occurred a few days later. [ 142 ] L.B. said R.P. remained with the children when she was at the hospital the first time and flew out to Alberta the next morning on the same flight as her mother. [ 143 ] T.P. stated that L.B. told the children that she had fallen down. Her face was swollen. His father had left the day before to go to work. L.B.’s niece, Danielle, and another person were there when he got up. [ 144 ] Dr.

Thistle, the doctor who saw L.B. on several occasions in the emergency room, stated it would not be outside the realm of possibility to sustain such an injury by falling down and striking one’s face hard against a surface – a solid object. [ 145 ] R.P. stated he was in Alberta when he received a call from L.B. that she had fallen down and suffered a facial injury. He had started a new job in Alberta the week L.B. was injured. They communicated daily by phone and text during this time until he got home. He also testified that Wednesday was never the only day he went away for work.

His departure day varied depending on the job situation. He denied that L.B.’s mother flew up with him when he went to Alberta. He also denied that he had threatened to kill L.B. on two occasions in May 2013. [ 146 ] The evidence on these charges differs significantly. L.B. sustained a facial injury which required surgery. L.B. testified that she was assaulted by R.P. in a manner causing bodily harm to her. During this time, she alleges R.P. also threatened her. R.P. testified that he was not in Newfoundland and Labrador at the time of these incidents because he had gone to Alberta to work.

He did not assault L.B. nor did he threaten her. [ 147 ] The different accounts of these incidents by L.B. and R.P. raise in my mind a reasonable doubt as to whether these incidents occurred as described by L.B. In addition, R.P.’s account is plausible and credible. He said he was not in Newfoundland and Labrador. L.B. had described to him on the phone what had happened to her. He noted that she had already been looking after the two older children for a period of time prior to this. [ 148 ] Having considered the evidence presented, I find that the Crown has not proven these charges beyond a reasonable doubt.

The Accused is acquitted of these three charges. Count 5 [ 149 ] This Count alleges an assault by R.P. on L.B. between October 6 and December 1, 2010. [ 150 ] L.B. stated the couple got into an argument. R.P. grabbed her by the hair, pushed her into the blinds by the window, banged her head, and punched her in the back. This occurred a few days before R.P.’s 40th birthday, his birthday being October 6, 2010. [ 151 ] L.B. was very upset. She called her friend, A.N., and they went for a drive.

A.N. testified that L.B. was upset and crying hysterically over an incident that happened at her home. [ 152 ] R.P. denied that this had ever happened. He stated that he never physically hit L.B. nor pulled her hair.

[ 153 ] The Crown submits that the Court should accept L.B.’s evidence as a true description of the events that occurred. In my view, this incident is one where L.B.’s description of the alleged assault and what happened following that when she met with her friend, A.N., is credible. A.N. corroborated L.B.’s evidence regarding meeting her friend after this and confirmed that L.B. was crying and upset over an incident that occurred at her home. [ 154 ] I am satisfied that the Crown has proven this charge beyond a reasonable doubt. I find the Accused guilty on Count 5.

Count 6 [ 155 ] This Count alleges that R.P. knowingly uttered a threat to L.B. to cause death or bodily harm to her on or about June 26, 2015. [ 156 ] L.B. and R.P. went to dinner for their wedding anniversary on June 26, 2015. She said that R.P. told her that she was not helping her niece who had just been accepted to nursing school. Later in the evening, the conversation occurred again as they were driving home with R.P. telling L.B. that she was not helping her niece. L.B. stated R.P. hit her in the face as she was driving.

She got out of the car and ran toward her niece’s house in the area where she stayed that night. The next day, R.P. and the children picked her up. She told R.P. that she wanted a divorce and that their relationship was over. She said he replied that they were not getting a divorce and said, “I’ll fucking kill you.” [ 157 ] R.P. did not remember ever threatening L.B. He denied striking L.B. when she was driving the car and said she did not get out of the car. He called L.B.’s testimony a fabricated story. [ 158 ] The evidence of L.B. and R.P. differed significantly on this incident.

She describes a threat on June 27, 2015. He did not remember ever threatening her. Any possible threat on June 27, 2015 is dependent on the events of the night of June 26, 2015 having occurred. If these events did not occur as R.P. testified, then there would have been no threat by R.P. against L.B. because R.P. would not have picked up L.B. the next day as she testified. [ 159 ] I have considered the evidence presented on this incident.

I am left with a reasonable doubt about the accuracy of the events of June 26, 2015, which, in my view, impacts any incident (the alleged uttering threat) on June 27, 2015. [ 160 ] I find that the Crown has not proven this charge beyond a reasonable doubt. The Accused is acquitted of this charge. Count 7 [ 161 ] This Count alleges an assault by R.P. on L.B. on or about October 12, 2015. [ 162 ] L.B. and F.P. were doing the dishes after dinner. She unintentionally splashed F.P. with water. F.P. slapped her in the arm. She raised her voice at F.P. Shortly after, R.P. came in the kitchen and grabbed her by the hair.

He yanked her around the house and held on to her for about five minutes. He told her not to hurt his daughter. She replied that F.P. had hit her. She told him to leave her alone so she could leave. R.P. grabbed her again, squeezed her face, pinned her against the wall, and told her that she was not going anywhere. He did let her go. She got to the kitchen door and ran down to her friend’s house to use the phone. [ 163 ] M.P. stated that he came into the kitchen. His mother and father were upstairs screaming. He saw his father punch his mother. He heard his mother say that she was leaving.

He saw her walk down the road to her friend’s house after that. [ 164 ] R.P. stated that he heard a scream in the kitchen. He went into the kitchen. F.P. was crying, holding her arm, and shaking and trembling. He and L.B. argued about what had happened and who was lying. He said L.B. stormed out of the house. R.P. denied that he grabbed L.B.’s hair. [ 165 ] An argument between L.B. and F.P. escalated into an argument between L.B. and R.P. about what had happened. L.B. states that R.P. grabbed her several times until she was able to leave the house.

He states that he did not grab her. [ 166 ] The Crown submits that the Court should accept the evidence of L.B. as an accurate description of what occurred that day and suggests that the brief evidence of M.P. corroborates his mother’s evidence. He confirmed that his parents were screaming at each other, that his father punched his mother, that she said she was leaving, that she left the house and walked down the road to her friend’s house, and that he saw her on FaceTime at his aunt’s house the next day. M.P. was eight and a half years old at the time of this incident.

In my view, M.P.’s evidence is reliable. [ 167 ] I am satisfied that the Crown had proven this charge beyond a reasonable doubt. I find the Accused guilty on Count 7. Counts 8 and 9 [ 168 ] These two Counts allege assaults by R.P. on L.B., one in 2010 and the other in 2011 - 2012. [ 169 ] L.B. stated that she was assaulted by R.P. in their living room when the three children were present. There was clearly confusion by L.B. on the timing, particularly the year of this alleged assault.

She noted that F.P. and T.P. came to live with the family in February 2011 and that it happened before their teenage years. [ 170 ] R.P. denied that he ever physically hit L.B. or that he pulled her hair. [ 171 ] Count 8 refers to an alleged assault occurring between January 1, 2010 and June 1, 2010. From my review of the evidence, the three children were not living together in 2010. They were together in the summer of 2010 when F.P. and T.P. came to visit for six weeks. [ 172 ] I find that the alleged assault did not happen within the timeframe set out in the Count.

The Crown has not proven this charge beyond a reasonable doubt. The Accused is acquitted of this charge.

[ 173 ] Count 9 refers to an alleged assault occurring between January 1, 2011 and December 31, 2012. L.B. testified that F.P. and T.P. moved to Newfoundland and Labrador in 2011. R.P. also testified that the children came in 2011 noting it was mid-year because he had to get their school records to bring to their new school in the Corner Brook area. [ 174 ] As I noted above, there was clearly confusion by L.B. about the timing of this alleged assault. She was vague and uncertain. For example, L.B. related the timing to F.P.’s and T.P.’s ages. F.P. was 10 years old in June 2011 and 11 years old in June 2012.

Her pre- teenage years lasted until prior to June 2014 when she became a teenager. [ 175 ] In my view, part of this time span from June 2011 to June 2014 is outside of the timeframe set out in the Count. There is no clear definitiveness of when this incident occurred. [ 176 ] As a result, I find that the Crown has not proven this charge beyond a reasonable doubt. The Accused is acquitted of this charge.

Count 11 [ 177 ] This Count alleges an assault by R.P. on L.B. between November 1 and 11, 2014. [ 178 ] L.B. stated she was assaulted by R.P. in their vehicle after leaving the Kent building supply store in Corner Brook. As they were driving, he hit her in the face. He threw her glasses against the window and they were broken. She stated that this occurred in the Fall in either 2013 or 2014 but she was not one hundred percent sure. [ 179 ] R.P. denied that he struck L.B.

He had no recollection of this incident. [ 180 ] The timeframe of this Count is very defined in the sense that it purports to have happened in a 14 day period in November 2014. L.B.’s evidence was very uncertain on the timing. In my view, there is no evidence to link this incident to the stated timeframe. [ 181 ] I find that the Crown has not proven this charge beyond a reasonable doubt. The Accused is acquitted of this charge.

Count 12 [ 182 ] This Count alleges a sexual assault by R.P. on L.B. between October 1, 2005 and January 8, 2016. [ 183 ] L.B. stated that over the course of their relationship she was forced by R.P. to have sexual contact (both oral sex and intercourse) against her will on many occasions. Essentially, L.B. said that over one-half of the sexual contact between her and R.P. was not consensual. She did acknowledge that there were times that the sexual contact was consensual. [ 184 ] R.P. denied that any sexual contact with L.B. was not consensual. When they were together, they had a healthy relationship.

L.B. was seven years younger than him. She enjoyed sex. [ 185 ] The evidence of R.P. and L.B. spans a long period of time – over ten years. The evidence differs significantly. It is L.B.’s word against R.P.’s word. It is very general. It is wide-ranging suggesting an ongoing sexual assault during the couple’s whole relationship. R.P. denies any non-consensual sexual contact. [ 186 ] Having carefully reviewed the evidence regarding this Count, I am unable to decide whom to believe. I am left with a reasonable doubt. [ 187 ] I, therefore, find that the Crown has not proven this charge beyond a reasonable doubt.

The Accused is acquitted of this charge. Count 13 [ 188 ] This Count alleges a sexual assault by R.P. on F.P. between January 1 and December 31, 2016. [ 189 ] F.P. stated that when she was 15 or 16 years old and living at the new house her father had built after he and L.B. separated, she and her father were lying on his bed. He wrapped his arm around her and tried to put his hand down her pants. She said he had asked her to sleep with him because he was lonely. [ 190 ] Snapchat messages between F.P. and her maternal grandmother, L.C., were entered into evidence.

One message dated January 26, which L.C. subsequently stated was in 2017, set out a question from L.C. in which she asked F.P. to tell her how long ago that he (R.P.) touched her sexually. F.P. responded that it was four months ago or more. Generally, these messages were difficult to follow as most were not dated nor in any type of chronological order. [ 191 ] R.P. denied that he sexually assaulted his daughter. The kids had their own rooms and that is where they slept. He was not lonely as he had started a new relationship in August 2016 and was dating M.S. when he lived in his new house.

He attributed this allegation by F.P. to her wanting to go to Alberta because she hated her life in Newfoundland and Labrador. [ 192 ] The evidence discloses that F.P. turned 15 years of age in June 2016. She was in Alberta for her 16th birthday in June 2017. R.P. testified that it was September 2016 when he and his two older children moved into his new house. Thus, the range of time when this incident could possibly have occurred in the new house is reduced to between September and December 31, 2016. [ 193 ] I found F.P.’s evidence regarding this incident to be confusing.

She was not sure how old she was when it happened. She and her father had a significant disagreement in the summer of 2016 about her continuing in cheerleading. She had told her grandmother in September 2016 that she wanted to move back to Alberta. [ 194 ] I found R.P.’s evidence to be credible. It raises in my mind a reasonable doubt as to whether this incident occurred.

[ 195 ] I find that the Crown has not proven this charge beyond a reasonable doubt. The Accused is acquitted of this charge. Counts 15 and 16 [ 196 ] These two Counts allege that R.P. exposed his genital organs to F.P. between January 1 and December 31, 2015. [ 197 ] F.P. stated that on two occasions she was showering in the shower in her father’s and step-mother’s bedroom when her father entered the shower not wearing any clothes thus exposing himself to her. She said the first time it happened was before Christmas and the second time was after Christmas. On the first occasion, she said she was 15 years old.

On the second, she said she was 16 years old but she later said she was 15 years old. [ 198 ] R.P. stated that he had never gotten in a shower with F.P. anywhere. He explained that the house had two showers – one for L.B. and him off their bedroom and a second one in the purple bathroom off the hallway which the children used. The children showered in that bathroom. He said F.P. never showered in the bathroom off the master bedroom because if L.B. ever saw F.P.’s hair in the enclosure, she would have lost her mind.

Nobody was allowed in that shower. [ 199 ] I found F.P.’s evidence on these incidents confusing and inconsistent. She said she was 15 or 16 years old and then changed the latter to 15 years old. F.P. was born in 2001. Thus, she would not have been 15 until 2016. The Counts state that the two incidents occurred in 2015. F.P. indicated that the first incident occurred before Christmas and the second after Christmas. If this occurred in 2015, there would have only been six days after Christmas.

I also note that R.P. and L.B. were still together as a couple in 2015. [ 200 ] The evidence shows that L.B. and F.P. had a poor relationship. Thus, it seems rather questionable that F.P. would use the shower in the bathroom off the master bedroom in light of this. [ 201 ] R.P. was very clear in his evidence. These incidents never happened. The children showered in the purple bathroom. The use of the master bedroom shower was not allowed. I accept R.P.’s evidence as being plausible and credible.

It raises in my mind a reasonable doubt. [ 202 ] I find that the Crown has not proven these two charges beyond a reasonable doubt. The Accused is acquitted of these two charges. Count 18 [ 203 ] This Count alleges an assault by R.P. on M.P. between January 1 and December 31, 2014. [ 204 ] M.P. stated when he was around eight years of age and in Grade 3 he was helping to pack up wood with other members of his family. He took a break and went in the house. His father came in after him, pulled down his pants, and smacked his bum. His father then pulled him by the ear out into the driveway.

He did not say anything to his father. He told his mother about this later. [ 205 ] T.P. stated that he and his siblings only did chores here and there. M.P. never had to do chores around the house. [ 206 ] R.P. stated that he did not physically discipline his children. Discipline was either vocally or a loss of their phone or their Xbox. He denied that he smacked M.P.’s bum and pulled his ear. He said the children would not be in

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