The accused was charged with assault causing, assault with a weapon, assault and breach of probation, stemming from 12 separate alleged incidents over an 18 month period. There was corroborating evidence in respect of a few of the alleged incidents; otherwise it was an issue of the credibility of the accused and the complainant, a former domestic partner.
Held: The accused was convicted of all offences with the exception of assault with a weapon. The Court was satisfied that the Crown had proven beyond a reasonable doubt that the incidents corroborated by either other witnesses and/or medical evidence and further that in regards to those incidents the elements of the offence were made out.
In terms of consent where bodily harm is caused, the Court noted that consent is generally not an issue where the accused intends to commit and does commit bodily harm, R. v. Quashie 2005 CanLII 23208 (ON CA)
. Further, where the Crown has provided disclosure of its case, the failure to call all witnesses referenced therein does result in an adverse inference against the Crown as there is no obligation to call witnesses the Crown deems unnecessary. The Defence has the option of calling those witnesses if it assesses their evidence as being relevant.
Note: In R. v. Cook
, 1997 CanLII 392 the Supreme Court of Canada recognized that absent an abuse of process, the decision as to which witnesses to call is part of the Crown’s discretion.