)) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 6751

CITATION : R. v. R.J., 2010 ONSC 6751 COURT FILE NO.: 437/09 DATE: 20101210 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – R.J. Defendant )) )) )) )) ) ) Helen How , for the Crown John Kaldas , for the Defendant HEARD: December 6-10, 2010 SPIES J. Introduction [ 1 ] R.J. is charged with several counts of assault causing bodily harm, assault and uttering a threat to cause death to his former common law spouse, D. S., during the period April 2002 to December 2005. He re-elected trial by judge alone before me and pleaded not guilty to all charges. [ 2 ] Ms.

S. and R.J. were a couple for about 17 years; 1988 to December 2005, although according to Ms. S. they only began to live together in May 2000. They have two children together, a daughter who is 18 and a son who is almost 10. Ms. S. also has a 24 year old son with another man. [ 3 ] Although Ms. S. did not give very much evidence about the nature of her relationship with R.J., she did testify that by April 2002, when she alleges that the first assault occurred, she believed R.J. was involved in sexual relationships with various women she believed were lesbians.

She said that R.J. brought one of these women into their home either before or after the first alleged incident of assault and asked her to “be a lesbian with her”. She refused. [ 4 ] Ms. S. testified that despite these problems and the repeated assaults that she alleges, she did not leave R.J. because she was afraid that if she did she would lose her children to the Children’s Aid Society (“Society”). [ 5 ] Around August 2005, Ms. S. started going out to bars six nights a week so that she could meet someone else. Ms.

S. admitted that Cheers was one of the bars that she went to. [ 6 ] At the end of December 2005, the Society took Ms. S.’s two younger children away from her. She then left R.J. and was homeless for a period of 8-9 months. In this timeframe, family court proceedings commenced. One to one and a half years ago, R.J.’ parents were awarded custody of the two children. A claim by Ms. S. for spousal support was denied. The Issues [ 7 ] The central issue is whether or not the assaults and the threat alleged by Ms. S., in fact, occurred. Although there is no issue that in April 2002, Ms.

S. broke her wrist, the position of R.J. is that this was as a result of a fall, not an assault by him as alleged by Ms. S.. Furthermore, although there is no issue that when Ms. S. was x-rayed in July 2007, there was evidence of old, healed fractures of the front left side of five of her ribs, R.J. denies that these fractures resulted from an assault by him as alleged by Ms. S.. The Alleged Assaults [ 8 ] Ms. S. alleges that R.J. beat her on several occasions as follows: (

a) First Alleged Assault – April 2002 – Count #1 [ 9 ] Ms. S. alleges the first assault occurred in April 2002. Her evidence as to when, during the day or night, this incident

occurred was internally inconsistent and at odds with the evidence she gave at the preliminary hearing in April 2009. She testified that she and R.J. were in the living room, which also functioned as their bedroom, and that they argued about the fact that she believed he was going out to see a young woman. All of the children were present as well as her oldest son’s girlfriend. Ms. S. was sitting, feeding her baby son who was in a highchair. She testified that when she told R.J. that he could not go, he started kicking her wrist and he kicked her there quite a few times before she ended up on the floor.

She alleges that this kicking lasted two to three minutes in total and that R.J. only kicked her wrist. He was wearing running shoes. He left after this incident and returned several hours later. [ 10 ] In her evidence in chief Ms. S. said that R.J. did not strike her any other way. At the preliminary hearing, Ms. S. testified that R.J. punched her before he kicked her during the first incident. When cross-examined, Ms. S. did not adopt that answer and said that now she can’t recall if he punched her at all on that occasion. [ 11 ] Ms.

S. said that after the assault, her wrist and hand were dangling and she could not move her hand. She told R.J. that they had to go to the hospital. From the hospital records, it is clear that Ms. S. and R.J. went to the emergency department of St. Michael’s Hospital on April 15, 2002. [ 12 ] At the hospital Ms. S. alleges that R.J. told the emergency doctor that she was trying to get her baby out of the crib and dropped the baby and was trying to catch him and that this is how her wrist broke. Ms.

S. admitted being alone with the doctor and when she was x-rayed but said she did not tell them what really happened because she was afraid of R.J. and had just had a baby and would not say anything that might result in the kids being taken away, which was one of the things she was always afraid of. [ 13 ] At the hospital, Ms. S.’s wrist was x-rayed and she was told her that her wrist was broken and a cast was put on it. She was then referred to the fracture clinic for follow-up, where she saw Dr. McKee, an orthopedic surgeon. Dr. McKee testified but had absolutely no recall of Ms.

S., which is totally understandable based on the time that has passed and the high volume of patients that he sees. He testified that the most common cause of an injury like this is a fall with an outstretched hand, although a direct blow to that point could also have caused the injury. He was not able to assess what the cause was but did say that what he was told about Ms. S.’s fall was consistent with a fall with an outstretched hand and this injury. He also testified that typically, the wrist would not hang as a result of such an injury although if it was painful enough, Ms.

S. might not have wanted to move it. [ 14 ] Although Ms. S. was not asked about this, Dr. McKee’s notes state that when she first saw him she had removed the cast that had been put on her arm in the emergency department. He, therefore, put on another cast which she had on for about six weeks. At the follow-up appointment the cast was removed and there is no evidence that there were any remaining issues with the wrist although Ms. S. would have been referred to physiotherapy. While the cast was on, Ms.

S. said it was difficult for her to clean the house and do the dishes and take care of her one and a half year old son. [ 15 ] Ms. S. testified that she did not call police about this assault because she was afraid of R.J. and the Society. She and R.J. continued to live together and she said the relationship was “OK” until 2004 and that there were no other physical altercations. She then added that the relationship was “iffy” because she knew R.J. was still seeing other girls.

In particular, she testified that in Easter of 2004, he came home with a woman who used the name Tisha Adams, and she realized that he was having an affair with this woman. He denied this. Although she stayed with him for the sake of the children, this did cause frequent arguments. (

b) Second Alleged Assault – November 2004 – Count #2 [ 16 ] According to Ms. S., the second incident occurred on November 2 nd or 3 rd , 2004. She noticed when R.J. left for work that he had left a MSN lesbian group chat site open on the computer. She recognized some of the names and when R.J. got home, she confronted him. He denied the allegations and according to Ms. S., this time R.J. started punching her in the face, head, arms, legs, stomach and back and then started kicking her everywhere. He picked her up and threw her on the floor and continued kicking her. Again, the two younger children, Ms.

S.’s eldest son and his girlfriend were present. Ms. S. alleges that R.J. was probably wearing running shoes. [ 17 ] Ms. S. testified that after R.J. left, she stayed on the couch lying down. When she got up, she heard a loud snap and thought one rib was broken. She was in a lot of pain and found it hard to breathe. She did not call police or seek medical attention as she was afraid of the police, the Society and R.J.. She felt the pain on her right side. She said she was practically bedridden for three months. (

c) Alleged Threat – February/March 2005 [ 18 ] Ms. S. testified that sometime in February or March of 2005, R.J. was with his girlfriend, called her and said he was coming home to beat her. She believed him and called police. The police came and took a report. Her ribs were still sore at this point and she told the police that he had broken one rib. The police left and did not give her any instructions. Shortly afterwards, R.J. got home. Ms. S. could not recall if she told him that she had called the police, but in any event, nothing happened. [ 19 ] According to Ms.

S., three weeks later the police officers that took her report in April 2005, and a representative from the Society were at her door trying to take her children. According to Ms. S., this was not the first time the Society had attended at her home; they were always knocking on her door. (

d) Third Alleged Assault and Alleged Threats – May 2005 - Counts #3 and 4 [ 20 ] Ms. S. alleges that on May 22, 2005, R.J. beat her again. At this point her two younger children were present but her oldest son was not. According to Ms. S., she was standing when it started in the living room. It was broad daylight. R.J. hit her first in the face quite a few times. She alleges that he struck her face, head, arms, body and legs with first his fists and then his feet and threw her down. [ 21 ] Ms.

S. testified that during this assault, R.J. also threatened that she not tell anyone or he would punch her in her mouth and break her jaw so that she couldn’t talk; that he would throw her over the Donland’s bridge; and that he would take her to the woods

where no one went and no one would find her body. She alleged that he said at least some of these things on May 22 nd . [ 22 ] Immediately after this assault, Ms. S. testified that she took pictures of her injuries. Two pictures were introduced into evidence. They show bruises, scrapes and cuts to Ms. S.’s face, arms and shoulder. She testified that her whole body looked like this. (

e) Fourth Alleged Assault – July/August 2005 – Count #5 [ 23 ] Ms. S. testified that after the incident in May 2005, every two to three days R.J. would severely beat her until he was exhausted. She would be bruised all over and the bruises would last two weeks to a month. [ 24 ] Ms. S. alleges that in July or August of 2005, R.J. brought two of his female friends to the house and told them and the children to go upstairs so he could “beat your mother”. Again, she was standing in the living room.

He always punched her the first time and she alleges that he threw her on the floor and was kicking her while he was wearing running shoes. She had bruises everywhere. Again, she did not seek medical attention. She just took Tylenol. (

f) Fifth Alleged Assault – July/August 2005 – Count #6 [ 25 ] Ms. S. testified that shortly after the fourth alleged assault, that during one of the beatings sometime in July or August of 2005, R.J. knocked out both of her bottom front teeth. She said that this was because he had used a fist to hit her in that area and that her two front bottom teeth fell out a couple of weeks after. [ 26 ] Sometime in 2006, Ms. S. went to see a dentist. She got a partial plate for her two bottom teeth but she does not wear it because it hurts her by the end of the day. (

g) The Family Court Proceedings and the Gathering of Evidence [ 27 ] Ms. S. went to a clinic and saw Dr. Tang on June 12, 2007, in part because she wanted to get her ribs x-rayed as she “needed the evidence for court”; both the family and criminal court proceedings. He arranged for a number of x-rays, including x-rays of her chest. He also referred her to a psychiatrist and has been her family doctor since then until recently. [ 28 ] Dr. Clemens, a radiologist, was called as an expert witness by the Crown. He reviewed the films taken on July 4, 2007, and testified that the x-ray of Ms.

S.’s ribs showed old united fractures of the third through eighth ribs. He described the fractures as forming an oblique vertical line, in the area of Ms. S.’s heart and along her lateral left chest wall. Dr. Clemens explained the healing process and pointed out a slight bulge in the area where the fractures had healed. It was his evidence that in adults, this sign of a healed fracture may disappear over time or last forever. In the case of Ms. S.’s fractures, he said they were at least six weeks to one year old but that they could be up to five years old. He was not able to say how old these fractures were.

Analysis [ 29 ] I turn now to my analysis of the evidence. Given the size and weight difference between Ms. S. and R.J., there is no doubt that he would have been physically able to assault Ms. S. as she alleges and based on the medical evidence, he could have caused the fractures and missing teeth that she alleges she suffered as a result of some of the assaults. Ms. S. is very petite; only four feet, eight and a half inches tall and weighs 88 pounds.

Charles Sharp, a friend of R.J., who testified on his behalf, estimated that R.J. is five feet, nine inches to six feet tall and weighs between 245 to 250 pounds. [ 30 ] The central issue, however, is whether or not Ms. S.’s injuries were caused by the assaults that she alleges and whether or not R.J. assaulted her and threatened her on the various occasions that she has complained of that form the subject matter of the various charges in the indictment. [ 31 ] Ms. How very fairly conceded that there were issues with the evidence of Ms.

S., and that she has exaggerated some of her evidence, and in particular her wrist injury. She urged, however, that I carefully scrutinize her evidence and not dismiss it out of hand and that I should take into account that the way she presented reflects who she is. Before considering the evidence of Ms. S., I will consider the other evidence called that might corroborate her allegations. (

a) Is there corroborating evidence? [ 32 ] Although the evidence is clear that Ms. S. fractured her wrist and five of her ribs, that in and of itself does not establish that R.J. was the one who inflicted these injuries. With respect to the fractured wrist, according to the evidence of Dr. McKee, it could have been caused by a fall on an outstretched hand, which he said is the most common cause of this type of fracture, or it could have been caused by a blow, which is what Ms. S. alleges. Accordingly, to determine the cause of this injury, I must determine the credibility of Ms.

S.’s evidence. [ 33 ] With respect to the fractured ribs, Dr. Clemens opined that the fractures Ms. S. suffered could have been caused by a fall, being tossed to the ground, consistent kicks or blows, or falling against a table. As already stated, he was not able to say when the fractures occurred, save that it had not been in the six weeks prior to July 4, 2007. Mr. Kaldas suggested a number of possibilities to Ms. S. as to what could have caused these fractures, and she denied them all. In light of the evidence of Dr.

Clemens, the only other possible cause that I have evidence of, and is relevant to the rib fractures, is the fact that Ms. S. admitted that she fell on the floor shortly after her eldest son was born in 1986, while she was still in the hospital. She said she probably fell on her right side but it could have been her left. She denied hitting the railing of the bed or anything else as she fell. She said she fell straight to the floor because she couldn’t stand up on her legs. When it was suggested that this could be when she broke her ribs, she testified that she fell to the floor straight and had no

troubling breathing afterwards. Based on the evidence of Dr. Clemens, I find that this fall is a possible cause of the old fractures. I also note that Ms. S.’s report of pain on the right side after she alleges R.J. broke her ribs is inconsistent with fractures on the left side. [ 34 ] Given the evidence of Dr. Clemens, there is no way to determine the actual cause of the rib fractures based only on a consideration of the nature of the fractures. Mr. Kaldas submitted that a fall against a table or railing was more likely than repeated kicks, given the straight line formed by the fractures.

However, he did not put that suggestion to Dr. Clemens. Although I appreciate that the actual films were not disclosed to Mr. Kaldas until just before Dr. Clemens testified, the late disclosure does not allow me to ignore parts of the evidence of Dr. Clemens, who gave both a fall and blows as possible causes of these fractures. I have, therefore, concluded that for these injuries as well, the determination of the cause of the injuries depends on the credibility of Ms. S.’s evidence. [ 35 ] As for the photos, which Ms.

S. alleges were taken right after the assault from R.J. on May 22, 2005; those pictures do show injuries consistent with blows to the face, neck and shoulders. Although I have no medical evidence on this, I agree with Mr. Kaldas, that as a matter of common experience, it appears that the injuries in the photos do not look fresh, which undermines Ms. S.’s evidence that she took the photos as soon as R.J. left, right after the alleged assault. [ 36 ] Furthermore, there is the evidence called by R.J. from Amanda Wilcox.

She testified that she started going to the bar called Cheers sometime in 2004 through sometime in 2005. She would meet up with friends and have a few drinks and go home. Her friend named Joyce had a friend named D.. She could not recall this D.’s last name. She described this D. as someone who was about her height, which is five feet tall, perhaps a little taller, and skinnier than she is. She described this person as petite. She said this D. would be wearing heels and wore higher shoes than she did, which is why Ms. Wilcox probably thought she was taller. [ 37 ] Ms.

How conceded that it is likely that the person Ms. Wilcox knew as D. is the complainant and I agree, particularly given that Ms. S. admitted going to the Cheers bar and admitted to knowing an Amanda who also went there. [ 38 ] In light of this finding of fact, the rest of Ms. Wilcox’s evidence becomes relevant. She recalled one occasion when Ms. S. got into an argument with another middle aged lady and a few words were exchanged. Ms. S. called this other woman a “dyke” and swore at her. On another occasion, Ms. S. got between another lady and her boyfriend and a couple of punches were thrown.

This fight was broken up in minutes. Finally, on one occasion, as Ms. Wilcox was leaving the bar, she saw Ms. S. outside and involved in a physical fight. Fists were involved and punches were being thrown back and forth. Ms. S. was receiving some of the hits but she was more “giving it to the other young lady”. She has not seen Ms. S. since she stopped going to the bars around January 2006 after she met her current husband. Although Ms. S. denied all of this evidence when it was put to her in cross-examination, there is no reason why I should not accept the evidence of Ms. Wilcox as credible and reliable.

As a result, I find that the evidence of Ms. S. denying that she had been involved in any physical altercations at Cheers is false. [ 39 ] The evidence of Ms. Wilcox gives rise to another possible explanation for the injuries that appear in the photos Ms. S. took of herself on May 22, 2005. Accordingly, I have come to the conclusion that the determination of whether or not Ms. S. was assaulted by R.J. on that occasion depends on the reliability of her evidence. [ 40 ] There is no other photographic or medical evidence that might corroborate any of the other alleged assaults and the alleged threats.

No dental records of Ms. S. were entered as exhibits although I did notice when she testified before me, that she appears to be missing at least one bottom tooth. However, she also admitted that she had only seen a dentist once between the ages of 19 and 40 and so it is possible she lost one or more teeth to decay or some other incident. Again a determination of whether or not a blow from R.J. is the cause depends on the credibility of Ms. S.’s evidence. [ 41 ] Mr. Kaldas submitted that the failure of Ms.

S. to take other photos of her alleged injuries supports his position that she has fabricated these allegations. However, Ms. S. had a reasonable explanation for why she took pictures of the injuries in May 2005, and there is no evidence that she was gathering evidence before she left R.J. at the end of December 2006. [ 42 ] Mr. Kaldas asked that I consider photos that Ms. S. admitted to having posted on a personal website, which he suggested undermine her evidence. One picture taken April 14, 2005, of Ms. S. does not show any injuries to her face or neck.

There is a second one as well, with the same date, showing a closer view. However, this is not inconsistent with Ms. S.’s evidence as she alleges that she was assaulted in February or March 2005, and so it is possible that any injuries could have healed by the time this picture was taken. [ 43 ] Based on the date stamps on the photos, which Ms. S. admitted were accurate, photos that were taken of her on April 10, 2003, July 31, 2004 and December 30, 2004, were also posted. None show any injury, but none are in a timeframe when she alleges that she was assaulted.

Only the photo taken on December 30, 2004, is material. It shows her face and chest and no injuries. Mr. Kaldas submitted that the clothing in this photo is not what one would wear if one is bedridden. I agree. As this photo was taken at the very end of December, during the three month period Ms. S. alleges she was bedridden, it does undermine her evidence as to when and how the fractures to her ribs occurred. [ 44 ] Although Ms.

S. testified that there were eyewitnesses for all of the assaults; save for the fourth assault when R.J. is alleged to have sent everyone upstairs, none of these witnesses were called by the Crown. Furthermore, although she alleges that after May 2005, she was always bruised, no witnesses were called to testify to corroborate that. Mr. Kaldas submitted that the absence of evidence was significant and that I should instruct myself on this as I would a jury.

In response to my questions, he clarified that he wanted me to draw an adverse inference against the Crown, that had any of these witnesses been called, their evidence would not have been favourable to the Crown’s case. Ms. How argued that it is up to her to decide who to call as witnesses and that there could be any number of reasons why she did not call these other witnesses. [ 45 ] Neither counsel argued any law on this issue. I advised counsel that I would review the law and call them back to make submissions only if I determined that my ultimate decision would be impacted by how I decide this issue.

I concluded that given my concerns generally about Ms. S.’s credibility, that it was not necessary to bring counsel back in, as even without an adverse inference

being drawn, I could not find R.J. guilty of these charges, given my concerns about the credibility of Ms. S., for reasons I will come to. I, therefore, considered the failure of the Crown to call these witnesses as relevant only to whether or not the Crown had discharged her burden of proving the allegations beyond a reasonable doubt. Given my concerns about the credibility of Ms. S.’s evidence, the failure of the Crown to call corroborating evidence, if that existed, is fatal. (

b) Ms. S.’s credibility as a witness [ 46 ] Turning to the credibility of Ms. S. as a witness, I will first review some of the evidence that is not in dispute, that in my view undermines her evidence about the alleged assaults. [ 47 ] Following the first incident, Ms. S. agrees that she had no bruises, no fat lip, no black eyes or any cuts. She suffered no injuries besides her wrist. She was no longer sure if it was her right or left wrist or whether or not she went to the hospital the same day or a couple of days later. Although the fact Ms.

S. cannot recall which wrist was involved and when she went to the hospital can be explained by the fact this incident is alleged to have occurred eight years ago, the fact Ms. S. alleges that R.J. repeatedly kicked her wrist, even while she was still sitting, and that he did not strike her anywhere else seems highly improbable. [ 48 ] Mr. Kaldas submitted that Ms. S.’s evidence that her wrist and hand were dangling after the assault was not true, relying on the evidence of Dr. McKee. I agree that, at the very least, this evidence was exaggerated and Ms. How has fairly conceded this as well. [ 49 ] Although Mr.

Sharp is a friend of R.J., his credibility as a witness was not challenged by Ms. How. He testified that he knew D. and was in contact with her from about the year 2000 until 2005. He was in the R.J.’ home for perhaps 20-40 minutes at a time for three or four times in total. He also had very short conversations with Ms. S. here and there, I presume by phone. Ms. S. on the other hand, claimed not to know a Charles Sharp, which is not believable in light of his evidence. [ 50 ] More significantly, Mr.

Sharp described one occasion when he and R.J. were on their way to Collingwood where they had rented a shop to fix their cars. They were about five minutes from the shop when Ms. S. called Mr. Sharp on his cell phone and asked him if he knew where R.J. was. After exchanging glances with R.J., he told her that he had no idea where R.J. was. Ms. S. then advised him that R.J. had hit her and had threatened to kill her just a few minutes earlier and had just taken off. Mr. Sharp queried whether she was sure that it had just happened and whether it could have been longer.

She said “no”, it had just been a few minutes and she had heard R.J. taking off. At this point Mr. Sharp said that there was someone who might want to talk to her and handed the phone to R.J.. Once they were at the shop, R.J. got a call from police and they left and returned to Toronto. Mr. Sharp believed this was sometime in 2002, but was not sure of the exact date. [ 51 ] Although it is not possible to link this evidence to any particular assault alleged by Ms. S., the fact that she made what was clearly a serious false allegation about an assault by R.J., to Mr.

Sharp, is of real concern and supports the position of the defence, that the allegations she has made in this court were fabricated. [ 52 ] I turn then to consider the credibility of Ms. S. generally. [ 53 ] Ms. S. has no criminal record. Mr. Kaldas submitted that she was not a credible witness for a number of other reasons. I have found that some of those submissions have merit while others do not. [ 54 ] Dealing first with the submissions that I do not accept; Ms. S. is under the care of a psychiatrist and has been since July 2007. She is on medication that Dr.

Tang described, some of which is for psychiatric reasons. Dr. Tang said that he has concerns about Ms. S.’s mental health and said that she has pressured speech which he described as her talking going on and on and switching topics. Without more, there is no evidence to suggest that any mental condition Ms. S. was suffering from at any material time or any medication that she has or is taking has had any impact on her ability to accurately recount events that occurred to her. In this regard I have considered the fact that Ms.

S. testified that she had no recollection of the preliminary inquiry although did suggest that she could recall a criminal board proceeding. In cross-examination she did not recall either Mr. Kaldas or Ms. Hall asking her questions at this proceeding. In re- examination she testified that she did recall being questioned by both Ms. Hall and Mr. Kaldas before. Mr. Kaldas submitted that Ms. S. was being evasive but that is not the sense I got and my initial concern was that she had no memory of what was a fairly recent event. In considering all of the evidence, I have come to the conclusion that Ms.

S.’s evidence concerning the preliminary inquiry is more likely attributed to confusion and the fact there may have been other criminal proceedings involving R.J.; a matter I was naturally not given any evidence about. I have, therefore, decided that any inability to recall a preliminary inquiry is not evidence of Ms. S.’s inability to recall a relatively recent event or of some issue with her memory. [ 55 ] I also considered what Mr. Kaldas submitted were some “unhinged” answers and behaviours, for example, the fact Ms.

S. admitted telling R.J. that he was gaining weight on purpose so she could not see what he was doing on the computer and the fact she made an allegation during the trial that his relationship with a male friend was sexual and that he may be the father of her grandchild. Although I agree some of this behaviour is relevant to animus which I will come to, without any expert evidence I could not conclude that it is evidence of disordered thinking or some psychological condition as submitted by Mr. Kaldas. [ 56 ] Ms.

S. denied being under the influence of drugs or alcohol during any of the incidents but did admit that she smoked perhaps two marijuana joints per day and would have one alcoholic drink once she started going out to bars at night. This evidence was not challenged. I have no evidence that this level of consumption of marijuana and alcohol would have any real impact on Ms. S.’s ability to give reliable evidence about what she alleges occurred and so I did not consider this evidence in assessing her credibility. [ 57 ] Mr. Kaldas quite properly did not argue that Ms.

S.’s evidence should be discounted because she failed to report the alleged assaults to police after they occurred. In my view that would not be a fair consideration. It is not uncommon for women who are in abusive relationships to stay in those relationships, not seek help or call police, particularly when there are children at home. Although Ms. S. appeared to be more afraid of the Society taking her children than of R.J., I accept her explanation for why she did not report these assaults at the time she alleges they occurred.

[ 58 ] In his closing submissions, Mr. Kaldas raised a number of other issues about Ms. S.’s past conduct that he submitted were relevant to her credibility as a witness. This included the fact that she has posted sexually explicit cartoons and pictures on her own website, what he termed her homophobia and the conduct that demonstrated this, as well as other matters that he raised which I will not list here.

Although it could be said that the average person would likely find this behaviour to be strange, particularly for a middle-aged woman with a grandchild, in my view to find that this behaviour impacts adversely of Ms. S.’s credibility as a witness would not be justified. [ 59 ] In considering Ms. S.’s credibility I did consider the fact that she admitted going to a psychic twice and testified that the psychic gave her the names of some of R.J.’ lesbian friends as well as Tish, who she alleges had an affair with R.J. before Ms. S. left him, and that a couple of years later “there they are”. This suggests that Ms.

S. believes the psychic gave her this information before she met or heard of these women. Since this evidence did not impact on the allegations directly, I decided not to consider it as a factor. [ 60 ] As Mr. Kaldas pointed out, Ms. S. was not consistent in her evidence about the first alleged assault and, in particular, whether or not R.J. punched her. She was also inconsistent in her evidence about when, during the day or night, the first incident occurred. I did not find these inconsistencies, on their own, to be significant. Ms.

S. has alleged that the assaults took a pattern of punches and kicks and the first one in 2002, was over eight years ago. I did find it somewhat unusual however, that except for the first assault, Ms. S.’s evidence as to each of the remaining assaults was identical including where she and R.J. were, the fact she was standing and how the blows started and developed. [ 61 ] Mr. Kaldas also made much of what he called Ms. S.’s “bad demeanour” when she gave her evidence. There is no doubt that once the cross-examination started that Ms.

S. immediately became argumentative and confrontational while giving evidence, notwithstanding what I would describe as a very polite approach taken by Mr. Kaldas. Some of this is relevant, in my view, to the question of animus which I will consider. Some of this may also be due to what Dr. Tang described as her condition of “pressured speech”. Ms. S. objected to being asked certain questions and directed comments, on occasion, to R.J. and once to a person I assume is a friend who was seated in the public gallery.

This conduct is far from ideal courtroom etiquette, but given the expected emotional upset of being in court, the allegations made and the outcome in the family law proceedings, I have concluded that I should not read much into Ms. S.’s demeanour as a witness. Although Ms. S. certainly appeared to be able to hold her own in cross-examination, at least in terms of her attitude, that does not mean she was not dominated by R.J.. She was clearly not a sophisticated witness. [ 62 ] There is considerable evidence of animus in this case. I have already referred to some of the allegations Ms.

S. made against R.J. during this trial. There is also evidence that she had to take steps, including going to police headquarters, in order to get police to lay charges. As Ms. How submitted however, if the allegations are true, Ms. S.’s feelings toward R.J. are understandable, particularly given she lost custody of her children following their split. Furthermore, if what she alleges is true, her wish to see R.J. go to jail is justified. As for how the police viewed her complaint, that is not relevant to my determination of the case.

However, it seems that this bitterness has resulted in her lashing out at R.J. with false allegations; although as the allegations related to collateral facts, I could not conclusively determine that they are false. [ 63 ] I turn then to the submissions of Mr. Kaldas that I do accept, that further undermine the credibility of Ms. S.. [ 64 ] Although I accept that if Ms. S.’s version of events is true, that she may have been afraid to tell the doctors at the hospital the truth about her wrist, or report these matters to police, I find it very significant that once Ms.

S. decided to go to the police, she did not immediately allege that R.J. had broken her wrist and her ribs and knocked out two of her teeth. Specifically, Ms. S. admitted that she did not tell the police officers when she gave a lengthy videotaped statement on April 5, 2006, about any broken bones. When asked why she did not mention that R.J. had broken her wrist, she said that at that point she “didn’t think that far behind”. I find that evidence unbelievable as the first incident should have been a significant one as it is the first allegation of physical abuse and resulted in a trip to the hospital.

Furthermore, the failure to mention any broken bones to the officers during this videotaped statement is consistent with Mr. Kaldas’ position that this is something Ms. S. decided to allege later, during the course of the family law proceedings. [ 65 ] In the same vein, it is also significant that Ms. S. admitted that she did not tell the investigator from the Society about R.J. breaking her arm when she met with her in January 2006, shortly after the kids were taken away, even though she insists that she told her about the other alleged assaults. [ 66 ] Mr. Kaldas submitted it was also significant that Ms.

S. did not refer to broken bones in letters she wrote to the police in July and October 2006. I do not accept that submission as I have no idea whether or not those letters summarized her allegations in any way or were written for some other purpose. In fact, the October letter appears to have been aimed at making a claim for money. [ 67 ] I have already found that I prefer the evidence of Ms. Wilcox and Mr. Sharp, to the evidence of Ms. S.. There were other times during her cross-examination, that Ms. S. was clearly not telling the truth. For example, Ms.

S. denied knowing about a website named Garbage Boyfriends or starting an MSN group with that name. She said she didn’t even know how to do that. Mr. Kaldas then read something to her which she agreed sounded like something that she typed and then she admitted that she did start a group sometime while she was homeless, called Garbage Boyfriends, in order to let people know what R.J. had done to her. Ms. How argues that this evidence could be explained by the fact Ms. S. was caught up on the word Mr.

Kaldas used in his question; “website”, when what she wrote was an email, but given the uniqueness of the name of this group, in my view this does not explain the exchange with counsel. There were also times when Ms. S. seemed to modify her evidence once she knew where Mr. Kaldas was going; for example, the purpose for which she collected evidence and what side she fell on when her oldest son was born. [ 68 ] Furthermore, there were serious inconsistencies in Ms. S.’s allegations that R.J. knocked out her two bottom front teeth. As already stated, in her evidence in chief, Ms.

S. said that her two front bottom teeth fell out a couple of weeks after R.J. hit her. However, she told the police in October 2006 that one tooth fell out at the time of the assault and that the other fell out one to two months after and that she saw a dentist about one year later. At the preliminary inquiry Ms. S. testified that when she went to the dentist, one tooth was missing and the other one was loose. These differences are significant and I would not expect Ms. S. to have difficulty remembering whether the teeth fell out together or one after the other.

[ 69 ] It is the position of Mr. Kaldas that once Ms. S. realized that the family court proceedings were not going well, that she fabricated these allegations of broken bones. As already stated, the fact that Ms. S. did not disclose any broken bones to the police in April 2006, is consistent with this theory. That said, it is very common for there to be criminal allegations of domestic assault at the time of a spousal breakup resulting in parallel criminal and family court proceedings.

It certainly cannot be said that when this occurs, the criminal allegations are always fabricated to assist a spouse in the family court. Obviously, if Ms. S.’s allegations are true, she had a very good reason to leave R.J.. [ 70 ] In the family court proceedings, Ms. S. prepared a response to the Society’s report, with the help of her lawyer, which she signed on March 3, 2006. In that document, she stated that the relationship with R.J. had deteriorated three years earlier because she was suspicious that he was having an affair. She admits that this document did not refer to the alleged assaults.

She said she read and understood the document but felt she had no choice but to sign it. She signed it so she could get her kids. Mr. Kaldas argued that the failure to refer to the alleged assaults in this document is significant and that had Ms. S. told her lawyer about the assaults, as she alleges that she did, it would be reasonable to expect her lawyer to have included this information. In my view, that is not an inference I should draw without more evidence. It may be, for example, that Ms.

S.’s counsel in the family proceedings chose not to rely on this evidence because it was R.J.’ parents who wanted custody of the children. I do find it significant, however, that this document placed the timing of the breakdown in the relationship to 2003, which is, of course, after the alleged assault resulting in a broken wrist. [ 71 ] In her Answer sworn in the family court proceedings dated January 18, 2007, also prepared with the help of a lawyer, Ms. S. admitted reading every page and understanding the document before swearing to its truth.

She agreed that she never mentioned to her lawyer anything about a broken arm and that there is no reference to this in the document. She testified that she did tell her lawyer R.J.’ had broken one of her ribs and knocked her teeth out but agreed neither of these injuries are mentioned in the document. According to Ms. S., she wanted this evidence there but her lawyer didn’t put it in and told her that the Answer was only to deal with the children and that violence was not part of the application.

There is however, a heading in the document called “History of Abuse” which simply states that commencing November 2004, R.J. was verbally and physically abusive. In answer to questions aimed at the fact that this did not include a reference to the incident where Ms. S. alleges Mr. R.J. broke her arm in April 2002, Ms. S. said “I didn’t realize it then”. Mr. Kaldas suggested that this was the truth “creeping out” which Ms. S. denied.

It is significant that no specific assaults alleging broken bones or teeth being knocked out were set out in this affidavit when clearly an issue of abuse was being raised on behalf of Ms. S.. [ 72 ] The question of motive to fabricate must be considered, particularly given the fact that Ms. S. did not immediately allege that any of the assaults caused broken bones when she went to the police. Ms. S. denied that she wanted to use evidence of previous injuries to get money from R.J. and make it harder for him and his parents to get custody of the children.

She did, however, raise the issue of abuse in her family law proceedings, as set out above. Furthermore, in the letter to police of October 1, 2006, Ms. S. stated that she was demanding $10,000 from R.J., money she alleges he stole from her. She also admitted that she went to see Dr. Tang to get evidence for the family court proceedings in addition to the criminal court proceedings. The fact that Ms. S. failed to mention broken bones in the family court proceedings and delayed in making these allegations when she was interviewed by police, does support Mr.

Kaldas’ position that at least this aspect of the assaults was fabricated in order to strengthen her position in the family court proceeding and perhaps her demand for cash. [ 73 ] This conclusion has some support from Ms. S.’s admission that at one point during the family court proceedings she said to R.J.’ parents that if they gave her back her kids, they could have their son back. As Mr. Kaldas submitted, the only way Ms. S. could have delivered on this would have been to withdraw her complaint in the criminal proceedings.

Although I recognize it would still have been up to the Crown to decide whether or not to pursue the case, that is not something Ms. S. would likely be aware of. That said, it is also possible that Ms. S. would have been prepared to forgo pursuing legitimate charges in the hope she would get her children back. [ 74 ] There is, however, other evidence of Ms. S.’s readiness to use the involvement of police as a threat. Mr. Kaldas read out an email to Ms. S. in cross-examination.

Although she did not admit to writing all of it, she did admit that in an email to R.J.’ mother she complained about R.J.’ girlfriend Tish, that “they [a reference to R.J. and Tish] really have no clue how close they are to having the police involved in all this mess again”. The underlying complaint was that R.J. was letting Tish attend a racing event with him and not Ms. S.. [ 75 ] As set out I have found that Ms. S. made a false allegation of assault to Mr. Sharp, and that she has been untruthful while giving her evidence, in several respects.

These are serious issues that undermine her credibility as a witness. In addition, I am very troubled by the fact that once Ms. S. decided to make her complaint to the police, she did not immediately advise the police that R.J. caused the injuries that resulted in the fracture of her wrist and ribs.

There is no explanation for this delayed reporting and it leads me to believe that this aspect of her complaints at least was fabricated, perhaps to improve her position in the family court with respect to custody of the children and spousal support or just to get some revenge. [ 76 ] I appreciate that all the charges relate to separate incidents and that it is possible to believe some of what Ms. S. has testified to and not believe it all. However, with all of the concerns I have about Ms.

S.’s evidence and having found that she has fabricated some very serious allegations in order to support her claim of assault, and having found that there is no other evidence that corroborates her claim that R.J. assaulted her, I could not conclude that her evidence meets the very high onus on the Crown to prove these alleged offences beyond a reasonable doubt. Having considered all of the evidence, the Crown has not satisfied me beyond a reasonable doubt of the guilt of R.J. with respect to any of the charges. Disposition [ 77 ] R.J. would you please stand.

For the reasons I have given, I find you not guilty of all charges.

SPIES J. Released: December 10, 2010 CITATION: R. v. R.J., 2010 ONSC 6751 COURT FILE NO.: 437/09 DATE: 20101210 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN -and- R.J. Defendant REASONS FOR JUDGMENT SPIES J. Released: December 10, 2010