R. v. Grimoldby, 2012 ONCJ 449

Court File and Parties

Court File No.: Central East 11-2475 Date: 2012-07-11 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kevin Grimoldby

Before: Justice C.M. Harpur

Heard on: June 13 and 14, 2012

Reasons for Judgment released on: July 11, 2012

Counsel:

• Shannon Curry for the Crown
• Maureen Salama for the accused Kevin Grimoldby

HARPUR J.:

Overview

1Mr. Grimoldby and Robin Jonkman began a tumultuous romantic relationship in approximately September 2006. That relationship continued, with frequent breaks, until May of 2011. Between March and May in 2011, the relationship became increasingly acrimonious. The events in this period, and in particular on March 20, 2011, have led to Mr. Grimoldby being charged with one count of forcibly confining Ms. Jonkman, one of threatening her with bodily harm, one of assaulting her, and one of repeatedly communicating with her and causing her to fear for her safety.

2The trial of these charges proceeded on June 13 and 14, 2012. At the conclusion of the Crown's case, comprising the evidence of Ms. Jonkman, Ms. Salama for Mr. Grimoldby moved to dismiss the charges on the basis that the Crown had not established a prima facie case on any. For reasons given, I accepted the defence position with respect to the charge of assault. The trial continued with respect to the remaining charges. The sole defence witness was Mr. Grimoldby.

3This is a case to which the analysis in R. v. W.D. applies but the issue of Mr. Grimoldby's guilt appears to me to turn on the law concerning the remaining offences, not on credibility as to facts. That law results in not guilty findings on all three charges for the reasons subsequently set out.

Confinement

4As I indicated in my reasons dismissing Mr. Grimoldby's motion for non-suit on this charge, Ms. Jonkman testified that she anticipated only getting into Mr. Grimoldby's truck in her driveway on March 20, 2011 to talk to him, not that he would proceed to drive away. I am satisfied beyond reasonable doubt that Ms. Jonkman was, from the moment of driving away, effectively deprived of her liberty of movement both by reason of the truck being in motion, for the most part, and the potential cold and discomfort which she would have experienced had she decided to exit the truck on the two occasions when Mr. Grimoldby stopped it during their drive.

5The element of the offence which is less clear is whether this physical restraint to which Ms. Jonkman was subjected was something to which she was submitting unwillingly. The evidence of both Ms. Jonkman and Mr. Grimoldby was that they had routinely gone for drives to talk about their relationship prior to March 20, 2011. They also both testified that, by that faltering stage in their relationship, they had had many "last talks", as Mr. Grimoldby proposed this March 20 conversation in the truck would be. Ms. Jonkman's evidence is that she did not protest Mr. Grimoldby's departure from her driveway and, indeed, that she simply said "where are we going?". She testified that even after Mr. Grimoldby responded, "I'm going to drive you to the middle of nowhere, beat the crap out of you and leave you in a ditch", she remained calm and only irritated since this was just "the same old thing".

6Ms. Jonkman did say that she eventually attempted to dial 911 either to make Mr. Grimoldby take her home or to summon the police, either way to "get her out of the situation", from which one can infer that she was in a situation from which she wished to be extricated. However, whether this situation had come about by reason of Mr. Grimoldby's peremptory driving about, on the one hand, or because Ms. Jonkman was prepared to embark on a drive with him in order to talk about their relationship, on the other, is not apparent.

7I recognize the fact that "non-resistance" by Ms. Jonkman cannot be regarded as dispositive of her cooperation, absent proof by Mr. Grimoldby that her non-resistance was not caused by threats, duress, force or exhibition of force: s. 279(3) C.C.. However, I believe I should take into account Ms. Jonkman's "here-we-go-again" attitude in attempting to ascertain whether her continued presence with Mr. Grimoldby in the cab of the truck was contrary to her wishes. Alternatively, given the relatively calm manner in which she dealt with Mr. Grimoldby up until the point in time where she received an injury, I regard Mr. Grimoldby as having proven on a balance of probabilities that Ms. Jonkman's lack of protest was not the product of threat, duress, force or exhibition of force.

8I also regard as relevant in this regard the fact that Ms. Jonkman maintained her intimate relationship with Mr. Grimoldby intermittently even after March 20, 2011 and made no reference to having been confined until more than one month later, when she texted him "u kidnapped me & I got a black eye". In sum, I am left with a reasonable doubt as to whether Ms. Jonkman's ongoing presence in Mr. Grimoldby's truck on March 20, 2011, from the time the two left the driveway until Ms. Jonkman sustained an injury and told Mr. Grimoldby to take her home (which he did), is solely attributable to Mr. Grimoldby's action in driving off with her and stopping with her at places where she could not reasonably have made an exit. Because a doubt remains, Mr. Grimoldby is entitled to an acquittal on this charge.

Threat of Bodily Harm

9This charge is based on the Crown's allegation of the remark by Mr. Grimoldby to Ms. Jonkman as they drove on March 20, 2011 that he was going to "drive her to the middle of nowhere, beat the crap out of her and leave her in a ditch". Ms. Jonkman testified that she was not fearful that Mr. Grimoldby planned to follow through with this threat. She said that this was just Mr. Grimoldby being angry. She said she was irritated, not afraid. This reaction by Ms. Jonkman is not, of course, determinative. The test from R. v. Clemente, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758 is whether a reasonable person in the victim's circumstances would consider the words used by the accused to convey a threat of bodily harm. Absent the context of Ms. Jonkman's and Mr. Grimoldby's relationship, these words certainly could convey such a threat to a reasonable listener. However, the evidence of both Ms. Jonkman and Mr. Grimoldby is that, to Mr. Grimoldby's discredit, he was given to using language of this sort in his dealings with Ms. Jonkman, although both said that, typically, he would make his references to violence conditional, such as "another guy would …" or "eventually you are going to date a guy who …". This flicker of restraint in the violent words of Mr. Grimoldby in the past does nothing to make them less discreditable, but the history of such remarks does provide a context militating against a reasonable person in Ms. Jonkman's position concluding that Mr. Grimoldby's threat on March 20 was to be taken seriously. She acknowledged in her testimony that the only previous physical contact between them in anger had been part of minor tussling when the two were arguing which she did not consider assaultive. Thus, I am left in doubt concerning the "conveyance of a threat" element of the actus reus.

10Further, to reiterate what I said at the time of the motion to dismiss, here Ms. Jonkman acknowledged that she had gone to the police in July of 2011 and told them that she accepted that Mr. Grimoldby may have prefaced his threat on March 20 with words such as "if I were another man". Mr. Grimoldby testified that this was the condition attached to his remark to Ms. Jonkman in the truck. This state of the evidence leaves doubt as to whether Mr. Grimoldby's threat was so worded. While a "conditional threat" can nonetheless be a threat for purposes of s. 264.1(1)(a) C.C., that is so where the "contingency [is] in the maker's control": R. v. Ross, 1986 CanLII 4625 (ON CA), [1986] 26 C.C.C. (3d) 413 (O.C.A.). Since Mr. Grimoldby cannot be another man, the contingency here could not be fulfilled and, thus, if this was a conditional threat, it was not one which could constitute a threat for the purposes of s. 264.1(1) C.C.. The doubt on this point also requires acquittal on this charge.

Harassment

11The record, both in the form of Ms. Jonkman's testimony and of the various tape-recordings and photographed text messages, demonstrates with overwhelming clarity Mr. Grimoldby's misplaced sense of proprietorship in relation to Ms. Jonkman, as well as his rudeness and rage toward her. Mr. Grimoldby's testimony made clear that he continues to regard this appalling behaviour toward Ms. Jonkman as nothing more than his side of the sort of exchanges which occur in an unhealthy relationship, and something for which Ms. Jonkman too is answerable.

12Romantic attachments, once formed, can make for mysteriously-enduring, as well as odd, bedfellows, but there is nothing blameworthy for either partner in this phenomenon. Ms. Jonkman's continued involvement with Mr. Grimoldby after the relationship soured was not a licence for him to abuse her. What is blameworthy is the vicious part of Mr. Grimoldby's reaction to the breakdown of the relationship – screaming obscenities at Ms. Jonkman over the telephone and sending them to her by text, and incessantly demanding to know where she had been and with whom.

13The question, however, is whether this conduct constitutes a criminal offence. An essential element of the offence under s. 264 C.C. is that the accused's action "causes that other person reasonably, in all of the circumstances, to fear for their safety or the safety of anyone known to them". Here, Ms. Salama, for Mr. Grimoldby, points out that, in the course of Ms. Jonkman's attendance with the police of July of 2011, Ms. Jonkman told them without qualification that "she never feared for her safety".

14Ms. Curry, for the Crown, counters with Ms. Jonkman's additional evidence that Mr. Grimoldby's escalating anger and rudeness did cause her concern for her and her children's emotional stability then or in future. Ms. Curry also points to Ms. Jonkman's evidence that, "in case something happened to her", and following discussions in which her friends and relatives expressed concern, she began surreptitiously to tape her telephone conversations with Mr. Grimoldby, all indicative of fear for her physical safety.

15Detracting from Ms. Jonkman's evidence implying concerns for personal safety or for her and her children's ongoing emotional safety is a taped telephone conversation on or around May 4, 2011 entered as an exhibit at trial. In this tape, Mr. Grimoldby is enraged at Ms. Jonkman to the point of incoherence. However, in the background, one can hear laughter. Ms. Jonkman testified that the laughter was that of her teen-aged daughter. Ms. Salama reasonably suggests, on the basis of this evidence that, as at approximately May 4, 2011, Ms. Jonkman's daughter was not responding fearfully to Mr. Grimoldby's rantings nor, given the fact that Ms. Jonkman had apparently permitted her daughter to hear Mr. Grimoldby, was Ms. Jonkman experiencing fear for herself or this child.

16In sum, the evidence leaves me in doubt as to whether this essential element of causing fear for safety has been established by the Crown. On this charge as well, Mr. Grimoldby is entitled to an acquittal.

Conclusion

17It will be clear from these reasons that nothing in my findings should be taken to exonerate Mr. Grimoldby's behaviour on a standard of social acceptability as opposed to criminality. Mr. Grimoldby appears to labour under the illusion that there exists some place in Canadian society where the kind of narcissistic, unrestrained behaviour he has engaged in toward Ms. Jonkman is tolerated. His incivility is particularly shameful given his position as a firefighter and paramedic, professionals to whom, as he must know, many in our community look for models of good conduct.

18Although the record does not substantiate the charges, it does seem to me to provide grounds for the making of an order binding Mr. Grimoldby to keep the peace and to avoid any contact or communication with Ms. Jonkman. Should Mr. Grimoldby wish to show cause why such an order should not be made, the trial coordinator will set a hearing date.