Court File and Parties
Court File No.: Newmarket 12-2162 Date: 2013-03-28 Ontario Court of Justice
Between: Her Majesty the Queen — and — Marvin Lloyd Fray
Before: Justice Joseph F. Kenkel
Heard on: March 28, 2013 Judgment Delivered: March 28, 2013
Counsel: Mr. McCallion for the Crown Mr. Shiffman for the accused
KENKEL J.:
Introduction
Mr. Fray is charged with an assault on his former girlfriend contrary to s. 266 of the Criminal Code.
The complainant testified that during the course of a domestic argument Mr. Fray told her to leave the residence. It was after 1 a.m., she had no way home so she refused. She says he slapped her on the left side of the face and the confrontation ended. She took a phone into the bathroom and called police.
Mr. Fray agrees that there was an argument and that he told the complainant to leave but he denies slapping her.
The defence submits that the complainant was not a credible witness and that the evidence shows she called police and made a false complaint to the police as an act of revenge for being told to leave Mr. Fray's apartment. The Crown submits that the complainant was a credible witness and that her evidence is the only credible account.
Analysis
I've considered the evidence as a whole and make the findings of fact that follow in that context.
Mr. Fray has a criminal record. I don't find his 2007 conviction to be of any assistance in assessing his credibility in this matter. The 2001 conviction for obstructing police is relevant as an offence of dishonesty, but given time passed since the conviction I do not place much weight on that circumstance in assessing his present credibility.
I'm unable to accept Mr. Fray's evidence that the complainant called the police and made a false complaint as revenge for his attempt to force her to leave the apartment. "I'm going to mess you up and call the police".
That assertion is completely contradicted by the fact that the complainant refused to give a statement to the police in relation to this incident. She did answer a few questions put to her by the officer but she declined to give a formal statement. She explained at trial that she wanted the intervention of the police but she did not want the police to take further action in relation to the accused. Her actions that day were consistent with her evidence at trial.
The complainant testified that after she was slapped she retreated to the bathroom to phone the police and did not emerge until the police arrived at the residence and she was instructed to step out by the 911 operator. Mr. Fray confirmed in his own evidence that the complainant "Ran to the bathroom and called police". Although her evidence was challenged on this point in cross-examination, Mr. Fray also confirmed that the complainant was standing in the bathroom doorway as she said, emerging after police arrived.
The fact that the complainant ran to the bathroom and remained there until police arrived is consistent with her evidence of retreat to a place of safety, but would be unnecessary on Mr. Fray's evidence and is another circumstance that is inconsistent with his evidence on the central point.
Mr. Fray's evidence as to his demeanor that evening and the manner in which he told the complainant to leave is contradicted by the circumstances of the request and the observations of the investigating officer. Both parties agree that an argument about dishes escalated into a more serious dispute. Mr. Fray testified that he was relatively calm in relation to the complainant and he was the one telling her to calm down so as not to disturb others. When she refused he took her things and put them outside.
When Constable Sardinha approached the basement apartment he found a "very messy" scene in which there were clothes and personal items strewn about near the entrance.
Mr. Fray testified that he'd picked up the complainant earlier that day at her residence on the Danforth in Toronto and brought her back to Richmond Hill with him. When he asked her to leave it was after 1 a.m. and he knew she did not have a car to drive home. She had no place to go, no money, no means to get home and it was March yet he was insisting she leave his apartment immediately. Mr. Fray's action in forcing the complainant out in the middle of the night in that manner is inconsistent with his stated demeanor but consistent with the much angrier demeanor described by the complainant. The manner in which the police observed the clothes strewn about is inconsistent with the action described by Mr. Fray but consistent with the angrier demeanor and actions of Mr. Fray as described by the complainant. Mr. Fray's stated concern for the safety of the young woman 10 years his junior who he was forcing onto the street in the middle of the night in winter is contradicted by his own actions in that regard.
While the complainant and Mr. Fray give much the same account with respect to the events leading up to the incident, I find Mr. Fray's evidence on the central points is contradicted by his own actions, the actions and observations of others and credible evidence at trial. I find I cannot accept his evidence nor does it leave a reasonable doubt in my mind either alone or in combination with other evidence.
The defence submits that the complainant embellished her evidence, was argumentative in cross-examination and was not a credible witness.
I can find no credible evidence that the complainant embellished her evidence or tried to paint a "dark picture" of Mr. Fray as suggested by the defence. At the time of the incident the complainant refused to give a statement to police. At trial when she mentioned past incidents she explained that she was referring to past arguments with Mr. Fray, including once where she was told to leave, but she made it plain he had never hit her before.
Details such as the fact that Mr. Fray was drinking alcohol on the day in question do nothing to undermine his character and have little impact on his credibility where there's no suggestion that he was intoxicated to a point which would affect memory. While the complainant did say the accused at times says odd things and can "get a little cuckoo" when he has been drinking, when she was asked if his drinking affected his behaviour that evening she said, "Honestly I can't really say".
If the complainant wished to embellish her initial complaint in relation to Mr. Fray or "paint him in the worst possible light" as submitted by the defence she certainly had the opportunity at trial, particularly in the absence of any detailed formal statement given at the time, yet the complainant's description of a blow to the left side of her face with an open hand was consistent at the time of the initial incident and nothing was added to it.
Constable Sardinha did not observe any injury to the complainant's face, but given the slap described and the 15 minute delay until the police arrived I don't find the lack of visible injury at that point to detract from the credibility of the complainant's evidence. The fact that the complainant declined medical attention at the time and did not want police to proceed with the matter is also consistent with her description of a limited slap.
The fact that the complainant retreated to the bathroom, called police from there and then waited to emerge until after police attended, all confirmed by Mr. Fray, are consistent with her evidence of a physical altercation and inconsistent with his testimony.
I agree with the defence that the complainant is not a meek woman. That likely explains why despite the 10 year difference in their ages she did not back down when told to leave the apartment for failing to comply with Mr. Fray's rules. While she was defensive at times in cross, I find that she was a responsive witness for both parties and there's nothing in her demeanour that detracts from her credibility overall.
I find that the complainant's evidence is credible, consistent with her external actions and consistent with the credible evidence of the investigating officer.
Having reviewed all of the evidence, I can find no credible evidence which leaves a reasonable doubt.
Conclusion
- I find that the Crown has proved the assault alleged beyond a reasonable doubt. There will be a finding of guilt.
Released: March 28, 2013 Justice Joseph F. Kenkel