Crown: H. Bayley, Office of the Crown Attorney, Oshawa
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 THE COURT: My apologies for the amount of time taken there. I found reviewing both of these matters to be an interesting challenge.
¶ 2 The assault matter I will deal with first. C.M. is charged that on January 15, 2002 at Whitby she committed an assault on [the complainant]. The test to be applied in this matter, of course, is set out in Regina v. W.D. a three-prong test reported at 1991, 63 C.C.C. (3d) 397 at 409 (S.C.C.).
¶ 3 I have, of course, reviewed all of the witness' evidence in this matter and I might say a number of things based on my assessments of credibility are quite clear.
¶ 4 Three young boys probably all in grade five, although one I believe mistakenly attributed to grade six, were walking home at lunch time from school. One of those was the complainant. A couple of older boys in the same vicinity were also walking towards wherever they would have lunch and one of those was the son of the accused.
¶ 5 There was, in the threesome, some snowball throwing. There was an incident involving a shoe and as the three came across the two there was some giggling at the missing shoe and some childish bravado leading ultimately to a scuffle. The scuffle involved pushing back and forth. In my view it took an adult to make the situation a problem.
¶ 6 I accept that [the complainant] has a ready resort to vulgar language and used it then. I am utterly convinced he never used the words: "lesbian", "Jew", "cock" or "nigger". I believe he did not use the word "bitch". I accept he used the words, "Shut the fuck up" in speaking to the accused. But I find credible the evidence that the accused, seeing only a part of the events, and having a very bad day told her son to tear the young boy's eyes out.
¶ 7 I believe the weight of the credible evidence that the accused seized [the complainant] by the clothing at the back of his neck and pulled or threw him to the ground whereupon she kicked him more than once in or below the lower rib cage on his right side. I note that when Mr. Middleton testified, he used the word "stomach" but showed to the court his side below or at the bottom of his rib cage.
¶ 8 When the attack was over Mr. Middleton did not leap to his feet, but needed help and was crying as one might expect of a boy at that age.
¶ 9 In ranking credibility I found the accused exaggerated and in my view fabricated. Her story did not make sense and did not hold together well internally. If the first few things had happened as she said, her reactions would not have allowed the rest to occur. I did not believe her.
¶ 10 As respects the Crown's witnesses I ranked them as follows: Mr. Campbell I found to be more credible than Mr. Middleton who in turn I found to be credible than Mr. Riddell. But even Mr. Riddell enjoyed basic credibility.
¶ 11 J.M.'s evidence [that's C.M.'s son] was harder to read. Internally it held together better, although externally it conflicted with evidence that was clearly true. I believe [the accused's son] was covering for his mother but his evidence gives me pause.
¶ 12 The third branch of Regina v. W.D. at the very least in my view must be resolved in favour of the Ms C.M. since at the end of the day as I consider all of the evidence I am left with a reasonable doubt.
¶ 13 Nevertheless from the evidence I have found credible, and my view of what really happened, I want to protect the Crown's witnesses from a further breach of the peace involving Ms C.M.
¶ 14 So while I would acquit Ms C.M. I hereby invoke my common-law jurisdiction and Ms C.M. I am going to order you to enter into a common-law peace bond for a period of one year in the penal sum of five hundred dollars without deposit, without surety. The terms will be frightfully simple. You will be obliged to keep the peace and be of good behaviour, and you will not associate or communicate directly or indirectly with [the complainant], [the male witness], [and the next male witness] or any member of their immediate families.
¶ 15 And, Madam Clerk, an acquittal should be entered on the information.