What Awaits ObsEva Pain Or Gain?

Page after page of threatening texts from her estranged husband’s phone detailed all the ways he planned to “finish” her.

“My heart is broken,” she had texted him, telling him she’d tolerated his behaviour in the “hell” she called home because of her three children.

It’s “not fair for them to pay the price … and me,” she wrote.

A text came back from her husband’s phone late that night: “I will end you in the worst way possible.”

But it was the woman — and not her husband — who was hauled before a judge to endure stinging accusations and face charges.

She was either going to be branded a criminal, with prosecutors pushing for a 90-day jail term on the charge of assaulting a child in her care. Or she would walk free, her lawyer arguing that she was the real victim in this case — the victim of what the judge described as a “disturbing” campaign of abuse.

The judge accepted as fact that she was the victim of an abusive and controlling relationship, though her estranged husband has denied abusing his wife. He has no criminal record and faces no current charges. Ottawa police declined comment, citing a policy preventing them from speaking about domestic abuse cases “so as not to further victimize.”

The complexities of the woman’s story are detailed through court records and multiple interviews by the Citizen.  Legal scholars and advocates for survivors of domestic abuse say her story shows how a system meant to protect victims can just as easily work against them.

***

It was her husband who had first contacted authorities, telling them he had evidence that his wife had assaulted a two-year-old girl at the modest home daycare she operated.

He was the one who had collected that evidence, secretly planting hidden cameras around the home they shared.

He was also the one who first contacted the Citizen, suggesting coverage of the trial — which had received no media attention — and he sent along a copy of the incriminating video.

The video captures an ugly moment: The woman can be seen sitting on a couch before abruptly leaning across and pulling the child’s hair until the girl lands on her lap.

The incident is brief, spanning seven seconds, and the girl is then seen walking away, apparently unhurt as she continues playing with the woman’s youngest son.

But what the cameras didn’t capture, the woman would later explain, were the years of abuse she said she endured.

Her husband kept the video, holding it over her as a form of blackmail, she said, until she finally left him.

That’s when he turned the tape over to the Children’s Aid Society, who notified police. She was eventually charged with one count of assault.

She pleaded guilty, praying for forgiveness from the young girl and her parents.

In July, the sentencing judge granted the woman a conditional discharge, ruling the assault was “completely out of character,” and had happened in part because of “the extreme stress she was under as a result of her husband’s abuse.”

Though the woman walked out of court free, “I’m not free,” she said.

“He harasses me in all the ways you can imagine, with texts, death threats,” she alleged. “And I’m afraid. I’m still so scared. I don’t know what’s next from him.”

Asked if he had ever threatened his wife, the husband did not respond to questions from this newspaper.

The 39-year-old woman’s identity is not shielded by a publication ban in the court case, but the Citizen is not naming her because she has expressed fear for her safety.

The woman still has limited contact with her husband — they are separated but share custody of their three sons, ages 6, 12, and 13, and are currently in the midst of family court proceedings.

The Citizen is identifying the husband only by his initials, J.N., because the woman says she fears identifying him will lead to violence.

That fear stems from what she alleges was a concerted effort by her husband to have her thrown in jail to gain sole custody of their children.

After she left J.N., she alleges he leveraged the Children’s Aid Society, Ottawa police, Crown attorneys and the court system all in an effort to ruin her.

“That was the whole plan for him. I go to jail and he has the kids,” she alleges. Questions posed to J.N., asking if this was his plan, were not answered.

One text from J.N.’s phone, entered as evidence in court, read: “I will not rest until I have the kids to myself and you underground.”

Related

***

In granting the woman a conditional discharge on July 20, Ontario Court Justice Peter Doody was critical of Crown attorneys Bruce Lee-Shanok and Tara Dobec, who prosecuted the case, for questioning the woman’s credibility during an “aggressive” cross-examination.

The woman said she felt she was enduring the abuse all over again when she took the witness stand that day, with her husband seated in the public gallery, facing needling questions from the Crown suggesting her allegations of abuse shouldn’t be believed.

The judge later ruled it was “wrong” for the Crown to question the credibility of an alleged victim over her delay in contacting police to report the abuse.

“It was a very, very painful process,” the woman said of her trial. “The only thing that kept me calm is, when you have the truth, you have nothing to be nervous about. So that’s what kept me going. But it was very hurtful.

“I went through so much (abuse), and just needed a chance for someone to hear me, for someone to believe what I went through. So yes, I was hurt.”

The woman told court she delayed reporting her husband’s abuse, which she alleged included physical, sexual, verbal and emotional abuse over the length of their marriage, “because I was terrified to lose my children.”

While J.N. declined to be interviewed, in an email to the Citizen he denied abusing his wife.

“Such allegation of abuse is pure burble made with the help of the defence lawyer,” he said by email. “The Crown attorney and the judge let it go without challenge. It was a pure defamation, all parties involved are responsible for it including judge, lawyer, police and Crown attorney. I feel I was punished just because I helped a child.”

***

The assault against the child, unbeknownst to the woman, was captured on camera on the morning of March 25, 2015.

Two days after the incident, the judge said in his summary of the facts, she confronted her husband and told him she planned on leaving the abusive relationship.

The next morning, she heard him on the phone telling police about a video he had showing his wife assaulting a child.

When police arrived at the home that day, however, the husband said the video file had been “corrupted” and he could not show it to them. They closed the file for lack of evidence.

After the officers left, court heard, the man threatened the woman, telling her that if she ever left the marriage he would tell everyone she had assaulted a child.

“She stayed,” the judge said, “and the abuse continued.”

Two days after that, the woman alleged in an interview, her husband returned home from dropping their two eldest sons at school and beat her mercilessly.

The husband did not respond to questions from the Citizen asking if he had ever assaulted his wife.

The woman said she woke up to her youngest son crying at the sight of her bloodied face.

“I remember only waking up and my three-year-old on top of me crying, yelling, ‘Momma, wake up.’

“But I only had my child as a witness,” she said. “I didn’t have a camera like he did.”

After enduring nine more months in the household, the woman finally left her husband in early 2016.

In the judge’s words, the husband “had used the video of the assault to control her even more until she finally got the courage to leave him.”

Immediately after she left him, in January 2016, the husband turned the video over to the Children’s Aid Society.

The CAS notified police, who investigated and eventually charged the woman with one count of assault on June 25, 2017, more than two years after the incident.

In his July ruling, Doody called the assault on the child an “aberration.”

The woman pleaded guilty and said she has no memory of the incident. She expressed significant remorse and pleaded for mercy in a letter read in court:

“I don’t expect forgiveness for what I have done … But I loved (the child) and I had all the respect for her parents, and one day I wish they would forgive me. Because there is not one day that goes by I don’t think of it.”

According to a pre-sentence report filed at trial, the young girl’s father said his daughter is doing fine now and the family “has moved on” from the incident.

Doody said he accepted the woman’s evidence: “She was the victim of an abusive and controlling relationship at the time of the assault … While the assault of a young child in a daycare by the caregiver entrusted with her care is always serious, the assault was extremely brief in duration. There is no evidence it was ever repeated,” he said.

“Given the secret video recording carried on by the defendant’s husband and the absence of a report of any other assaults, it is reasonable to conclude that this was an aberration on the part of the defendant.”

***

While Doody appeared sympathetic to the woman, the judge admonished Crown prosecutors for questioning the credibility of an alleged victim of domestic abuse over her delay in reporting the abuse to police.

The Crown attorneys were not in the courtroom to hear the judge’s verdict, nor his critique of their conduct.

“(The Crown’s) implication was that the allegation of abuse should not be believed because she had not reported it,” Doody said.

In his sentencing decision, Doody said he “expressed surprise that Crown counsel would submit that the failure to complain by an allegedly abused spouse was relevant to her credibility.”

The Crown had also argued that “whether the woman was abused or not was irrelevant” to the appropriate length of her sentence.

It was at that point the woman’s defence team, led by Mark Ertel, told court the woman had indeed reported the allegations of domestic abuse to police.

Doody granted a six-week adjournment, and when the trial resumed, the woman testified to details of what the judge described as a “disturbing and abusive” marriage.

“Her husband never let her have friends. He would not let her use a computer in the house when he was not present, locking it when he left with a password known only to him,” the judge said in a summary of the woman’s testimony.

“Even when she worked outside the home, he would regularly pass by her place of employment to check up on her. He controlled all the money she earned. She testified that the marriage was abusive in every aspect.”

The woman testified she had called police a few times in 2005 or 2006, but pretended to be calling on behalf of a friend, because she worried the CAS would be alerted and they would remove the children.

Between 2013 and day of her testimony earlier this year, she estimated she had called police 16 to 20 times.

The woman immigrated to Canada from Brazil in 2000. She met and married her husband, who had already been living in Canada, that same year.

She alleged in an interview he would use her status as an immigrant, and her lack of “higher education,” to discourage her from reporting abuse to police, saying she would lose custody of their children if she did so. Asked if he had done this, the husband did not respond to questions from the Citizen.

“In any event,” Doody ruled, “Crown counsel was wrong to suggest that a delay in, or a failure to report (abuse) is relevant to the credibility of an alleged victim of domestic abuse.”

As Ertel noted, the woman’s husband was seated in the courtroom gallery observing proceedings, and could have been called at any point by the Crown to testify.

“The defendant was aggressively cross-examined by Crown counsel. She was not shaken in her evidence,” Doody said in his ruling. “Despite the Crown having received several weeks’ notice that evidence would be provided to the court to establish that the defendant had complained to the police, no evidence was led (by the Crown) in rebuttal.”

The Crown suggested the judge should not accept the woman’s claims of abuse, which she had related to the author of the trial’s pre-sentence report, and prosecutors said it was “unfortunate” the report’s author had not also spoken with the husband.

“Why I was not called to testify is something the Crown has to answer and police and judge,” the husband said in an emailed statement.

“Defence counsel pointed out that the husband was in court to watch proceedings and invited the Crown to call him as a witness,” Doody said. “That was not done.”

The Crown eventually conceded, and in the judge’s words, “did not take issue with the fact that the defendant had been a victim of domestic violence.”

The judge read aloud a sampling of the text messages the woman received from her husband’s phone, which were forwarded to police to corroborate the woman’s claims of abuse.

The woman later showed those texts, and a number of others to the Citizen, which read (sic):

“B—h, and you think I will not make you pay for this.”

“I have been in this country forever and I know how (these) things work.”

“Look to how many warnings I have given to you and you never listened. If you listened, no court.”

“B—h, if you listened to me you wouldn’t have lost your job and I wouldn’t have sent the video and email to your boss.”

“Do not fool around (because) you know there is consequences.”

“B—h, you listen to my orders or else I finish you.”

When asked by the Citizen about these text messages, the husband did not respond.

***

 

The woman told court she tried to get copies of the police reports to verify the fact she had previously reported the alleged abuse, but could not afford to pay the fee of $55 per report.

She is currently unemployed. She lost her daycare business after the CAS intervened following the complaint lodged by her husband.

After leaving her husband, court heard, she attended Algonquin College to train as a personal support worker.

She was hired by a nursing home.

The husband contacted the nursing home in February, court heard, to inform them of the assault charge and pending legal proceedings.

“As a result of her husband’s efforts,” the judge said, her employment was terminated.

In an interview, the woman said her supervisor cried the day she was let go.

“Her work was above reproach and we were saddened to see her leave because of her personal situation involving her ex-husband,” the home’s human resources officer wrote in a letter in April.

The official said the woman always kept her personal life separate from her work, “until the very end when it became impossible for her to hide.”

She has also worked part-time at a coffee shop, grocery store and a convenience store. Two of her managers testified as character witnesses, telling court about the “wonderful, caring” and “very sweet, easygoing” woman.

She was offered counselling through Ottawa Victim Services to deal with issues related to her husband’s alleged abuse. Her counsellor wrote the judge a letter saying the woman “has not conveyed a violent nature to me, but rather appears to be a caring, devoted parent to her three sons.”

She was given 12 months to pay a mandatory court-ordered victim fine surcharge of $100.

***

The Crown sought a sentence of 90 days in jail, which Doody dismissed as “completely disproportionate.”

“The defendant has suffered as a result of what she did,” the judge ruled, siding with the defence argument for a conditional discharge. “She lost a job which she had taken special training to qualify for. She remains unemployed. Her business of a daycare centre is no more.”

Doody said those factors alone would serve as a deterrent.

“She knows the result of committing an offence like this,” he said. “She acted out of character. She was suffering from unusual stress as a result of the abuse she had been experiencing from her husband.”

She has no prior criminal record, and Doody said a conviction would interfere with her potential employment as a personal support worker.

“It is clearly in her interest that she be granted a discharge,” he ruled. “In many cases it would be inappropriate to grant a discharge for an assault on a child in the offender’s care. I am satisfied that it would not be contrary to the public’s interest to do so in this case.”

During sentencing, the Crown argued it would be “unsafe” for the woman to ever be employed as a personal support worker, and complained the discharge would not be evident to a potential employer conducting a background check.

“That is not so,” the judge countered.

Doody explained the discharge would be discoverable by a “vulnerable sector check,” which is required for personal support workers. Her guilty plea and subsequent discharge will be logged in that database for three years.

“More than three years has passed since the date of the offence, and the defendant has not been charged with any further offences,” Doody ruled. “I do not believe there is a significant possibility the defendant would commit such an offence again.”

Though she was freed from the burden of her trial, the woman said she still lives in fear.

She has spoken with her lawyer and with her probation officer about the alleged domestic abuse, and has reported the continued threats to police.

She says she recently pulled a GPS tracking device from her car, though there is no evidence to suggest who placed it there.

“I can confirm that complaints were made to police. I don’t know whether police plan to charge him,” said Ertel, her lawyer. “The GPS claim seems to be independently confirmed by text messages and an uncanny ability to show up where she was.”

The husband did not answer questions asking about the GPS tracking device.

The woman still awaits a separate resolution on proceedings making their way through family court.

“I’m even afraid if I got full custody of my kids because I’m afraid he’s going to lose it,” she said. “As long as he has control of the kids everything is fine, and I just try to keep the peace as much as possible.

“But I am the mother of the kids and I will never, ever give up on the children.”

Related

ahelmer@postmedia.com

Twitter.com/helmera

Source : https://ottawacitizen.com/news/local-news/guilty-but-also-a-victim-how-an-ottawa-court-case-was-upended-after-a-woman-re-lived-her-pain

3567