R. v. Bristol, 2014 ONCJ 324

Court File and Parties

Court File No.: Toronto 12004177 Date: 2014-06-27 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Dwayne Bristol

Before: Justice J.W. Bovard

Heard: February 21, 2014

Reasons for Judgment Released: June 27, 2014

Counsel:

• Ms. C. Faria, counsel for the Crown
• The defendant Dwayne Bristol, on his own behalf

BOVARD J.:

Introduction

1These are the Court's reasons for judgment after the trial of Dwayne Bristol for assaulting Lea'Anna Felix on September 2011.

2Ms. Felix and Mr. Bristol have known each other for about three years. They have a three year old son. Throughout their relationship there has been arguing and violence. Ms. Felix says that during an argument in their apartment on the day in question Mr. Bristol assaulted her by punching her in the face and stomach. Mr. Bristol denies that he did this. He says that Ms. Felix blocked the door when he was trying to leave the apartment. All that he did was to squeeze by her to get through the door so that he could leave.

3After Mr. Bristol left, Ms. Felix called the police. They came to her apartment and interviewed her and later charged Mr. Bristol with assault.

Issues

4The issues are the credibility and reliability of the witnesses.

The Evidence

5Ms. Felix testified that she and Mr. Bristol met about 3 years ago. They became intimate shortly afterwards and had a child, Adrian, who is three years old. A few months after Adrian was born they started living together. They lived with Ms. Felix's mother, grandparents and her daughter from another relationship, Rihanna. Rhianna was six years old.

6Mr. Bristol stayed at this residence for about 3 months and then left. Ms. Felix and Mr. Bristol then moved into a place of their own on Landsdowne Ave. Ms. Felix's daughter and their son lived with them. They lived at the new location for about 4 months.

7Ms. Felix said that Mr. Bristol was physically and verbally abusive to her. He also criticized Rihanna and the children's godmother. On pages 9-11 of the transcript of her evidence given on February 21, 2014, she described the abuse as follows. He diminished her character, put her down, and belittled her daughter. He made inappropriate comments about Rihanna's godmother. He called her a bitch, a dunce bitch, a brainwashed bitch, a fuck toy, a whore, a slut and a prostitute.

8In addition, he would punch and slap her. He shoved her to the ground and restrained her.

9Ms. Felix said that he did these things to her when they lived with her parents and when they moved to the Lansdowne address. Mr. Bristol moved out of the Landsdowne address in September 2011.

10On the day in question, Ms. Felix had just gotten back to their apartment from Dufferin Mall. She told Mr. Bristol that she saw his cousin at the mall. She told him that his cousin wanted to bring over her daughter so that she could play with Rihanna. Mr. Bristol was not comfortable with the idea. Ms. Felix thought that it was because he had slept with his cousin. She knew that he slept with her because Mr. Bristol told her.

11While discussing the idea of his cousin bringing over her daughter to play with Rihanna, Mr. Bristol got angry. He got up to walk away and she asked him why he was being like that. He said that he did not want to discuss it any longer. They continued to argue. Rihanna was in the living room. Adrian was in the bedroom in his playpen.

12When he tried to walk away from Ms. Felix she was at the bedroom door and she put her arms out and asked him why he did not want to talk to her about it. He tried to shove her out of the way. She was "arched over by the foot of the bed". She felt pinned down. He punched her in the stomach.

13Rihanna came into the bedroom to see what was going on. She picked up Adrian. Rihanna was crying. Ms. Felix was still bent over the foot of the bed. Mr. Bristol hit her 3 times in the face. Rihanna started screaming.

14Ms. Felix managed to get away from Mr. Bristol, called her a crazy bitch and said that Rihanna was "fucked up". Then he left.

15The right side of Ms. Felix's face was swollen. It stayed that way for about one week.

16Ms. Felix called the police. The Crown adduced the 911 tape as Exhibit 1 on consent. She played it for court. One can hear Adrian in the background. Ms. Felix is very upset.

17The police came to her home and she gave them a statement about what happened. However, she did not tell them everything. She "let them know the minor parts of it" because she was worried that her kids would be taken away from her.

18The Crown produced a picture of a text message taken from Ms. Felix's telephone. Ms. Felix said that Mr Bristol sent it to her four or five days after the incident. The Court made it Exhibit 2 on consent.

19It says "I know its (sic) hard to forgive someone who hit u over things said in anger I know I yell when I should be comunicatieing (sic) but I hope that we could patch things up for my sake because I realy (sic) do love u and my son because u didnot (sic) have to stand by me when I came out of prison and bring me adrian I will always love u"

20The text is dated "April 23". She explained the discrepancy with regard to the dates in this way "...the discrepancy is the original phone that the message was texted to had been broken, and I was trying to upload - I had saved it on a folder, but it only stated the date that I saved it, so that would be the date that I saved it onto the..." (page 23, lines 20-24, February 21, 2014 transcript).

21The next text in the string, which is also reproduced in the picture, says "Happy Family Day you brainwashed bitch". It is not clear from Ms. Felix's evidence when Mr. Bristol sent this text.

22In addition to sending Ms. Felix this text, Mr. Bristol called her after the incident. When he could not speak to her he sent disrespectful text messages to her.

23Ms. Felix said that she is involved in family court proceedings with Mr. Bristol. She said that there is a FC order in place, but the Crown did not ask her for the details of the proceedings or of the Order.

24Mr. Bristol cross-examined Ms. Felix. He asked her if she tried to block his exit from the apartment. She said that she did not. He asked her about damaging a camera on another day. She agreed that she did when she threw at him after he shoved her. She denied throwing a laptop and taking his passport.

25That was the case for the Crown.

26Mr. Bristol called his mother, Ms. Ingrid Bristol, to testify. She said that she called Ms. Felix and spoke to her the day after the incident. She could tell that something was wrong because when she asked her how she and the children were, she hesitated to tell her. Ms. Felix said "Oh, Ms. Ingrid, or Ms. Lynette". The way she said it made Ms. Bristol think that there was something wrong.

27Also"from the time I said 'How is Mr. Bristol,' she was babbling. She said that Mr. Bristol usually answers the telephone when she calls on Saturday. She thought that there may have been a problem with regard to Mr. Bristol and Ms. Felix.

28She went to Ms. Felix's home to see what the matter was. She asked if Mr. Bristol had hit her. Ms. Felix said that he had not. She told her that she called the police because "Keron" and "Kesha" told her to do so.

29Ms. Bristol was there for about two hours. She did not notice that Ms. Felix's face was swollen. Ms. Felix did not look as if someone had assaulted her. Nor did she speak as if she were upset.

30She thought that the police arrested her son "Because of other people calling the police on him and saying that he do this and do that and to the other. That is why he was arrested."

31Mr. Bristol testified next. He said that he and Ms. Felix became intimate shortly after they met. After she got pregnant he learned that she was promiscuous and that she had a long term relationship with a man called Keron, who had acted as a step father to Rihanna.

32This caused a problem for Mr. Bristol but he did not want to walk away from Ms. Felix because she was pregnant with his child. So he tried to make their relationship work. They live together for about 3 months and things were good. Then Keron told Ms. Felix that he saw Mr. Bristol with a woman at the mall and that he was cheating on her.

33Mr. Bristol said that "...this is where the talk came up that she was stupid, because I said how could you listen to someone that has a phone that is this big, it's even bigger than this Bible, the phone is this big with a digital camera, and they tell you they saw me with a girl, and they didn't take - they are such good friends with you, you buy that story, and they don't take a picture to show you, even my profile you would know it's me, you know, me with that young lady" (page 49, lines 2-11, February 21, 2014 transcript).

34He found out that Keron had been calling Ms. Felix 15 times a day to ask her if she and Mr. Bristol were still together. Mr. Bristol questioned her about why she would even take his calls. Mr. Bristol explained that this was the context in which he and Ms. Felix were having their relationship.

35He related that one time when he was living with Ms. Felix at her grandfather's home, her grandfather got upset with him because he heard that he was taking money from her. He told Mr. Bristol to leave.

36Mr. Bristol started to leave but Ms. Felix blocked the door and started yelling and screaming at him. She told him that he was not interested in their relationship and that she was pregnant with his child. She threw his digital camera and laptop and hid his passport. She would not let him leave.

37Mr. Bristol called his friend, Kelly. When his wife answered the telephone, Ms. Felix got angry and accused him of calling another woman. She punched Mr. Bristol in the face. He tried to restrain her, but she came at him again. Her grandfather had to restrain her. Mr. Bristol's friend arrived within 45 minutes and he helped him take most of his things out of the house. Mr. Bristol lived with his friends for about two weeks.

38Later, Mr. Bristol and Ms. Felix reconciled and moved into the apartment where the incident before the Court occurred. While they lived together, Ms. Felix would periodically get angry with Mr. Bristol because of something that Keron said, or because he was not paying enough attention to her. She would accuse him of infidelity, of liking her mother, her god daughter and her god daughter's mother.

39She would tell him to get out and he would go out for a walk. He would go sit in his car and wait for an hour or two until she called him. She would ask him where he was and tell him that she did not mean for him to leave. When he returned she would be calmed down and she would apologize.

40Mr. Bristol said that this scenario occurred at least 12 times before the day in question. On the twelfth time he could not go to his car because it had been towed. So he put some things in a backpack and went to the Seaton House shelter.

41Two days later, he went back home to pick up some things. Ms. Felix started crying and told him that she could not pay the bills by herself. She asked him to come back to her. She said again that she did not intend that he leave. She asked him if he had gone to another woman's home. He told her that he went to a shelter.

42She calmed down for about one or two weeks. Then on the day in question she started yelling at him again. He said that it was not about his cousin coming over. That argument occurred months before. Mr. Bristol did not know why she was yelling. He said that from time to time she just starts yelling about him not giving her enough attention "or whatever the case may be..."

43He went to the bedroom to get his backpack. She followed him. He squeezed past her and out of the bedroom but before he got to the door of the apartment she ran and blocked it. Rihanna was crying hysterically because when Ms. Felix starts yelling, Rihanna starts crying.

44Ms. Felix did not block the door because she did not want him to leave; she blocked it because she did not want him to leave without hearing her out.

45He denied that he pushed her aside to go through the door. He reached around Ms. Felix and pulled open the door and "squeezed through the door". He told her that he was not coming back to her. He warned her not to try to take his son from him or he would take her to court. Then he left. He denied punching or slapping her. He said that he was annoyed at her, but he was not angry with her because this was her normal "MO". He knew that all that he had to do was to leave and give her time to calm down.

46He said that he was afraid that she would stab him or throw something at him. He said "At the time she did not have anything in her hands, but I was sticking around (sic) to wait for her to get something in her hand, so I chose to leave..."

47He testified that he was afraid for his life because she has a history of throwing things, punching and "striking someone with stuff". On another occasion she told him that she had stabbed her other boyfriends. In addition, she has also tried to stab him.

48Mr. Bristol thinks that the reason that she called the police is because she told him several times that he would never get his son because he has a criminal record. Mr. Bristol found out that Keron was there when the police came. He suspects that they made up the story about him assaulting her.

49He admitted that in the text he apologized to her for hitting her, but he said that he did it because she would not let him see his son (page 54, lines 11-12, February 21, 2014 transcript).

50However, he said that he sent the text after February 16, 2012 (about 5 months after the day in question, not four or five days afterwards as Ms. Felix said). He testified that during the time that he sent the text message Ms. Felix was not contacting him and that he "would try to get in contact with her simply to see my son, you know, so that's why I said what I said or whatever the case may be" (page 56, lines 5-8, February 21, 2014 transcript).

51The Crown asked him whether in this text he was asking for forgiveness for having hit Ms. Felix. At first, he did not answer the question. Instead, he said that he has never been the one to start the arguments. All he does when they start arguing is leave the apartment. He added that Ms. Felix always blocks the door and he has to force it open. Later, he denied that the reason that he asked for forgiveness was because he had in fact hit Ms. Felix.

52With regard to this text, Mr. Bristol testified that Ms. Felix called him while he was at the shelter and asked him to admit what he did to her and she would let him see his son. At first, he just hung up on her. After he thought about it for a while he decided that he wanted to see his son so he "gave in and said, yes, you know I'm sorry for hitting you, whatever, you know, can I see my son (page 71, lines 1-6, February 21 transcript). He had not seen his son for four months. In spite of his apology she did not let him see his son. He concluded that she lied to him in order to get "evidence to bring against me". He said that he did a "foolish thing, which is write it down, what she wanted to hear" (page 77, lines 13-16, February 21, 2014 transcript).

53That was all of the evidence.

Mr. Bristol's Position

54Mr. Bristol admits that he verbally abused Ms. Felix, but he submits that he did not strike her in the face or stomach. Nor did he shove her. Ms. Felix was wrongly blocking his exit from the apartment and all he did was to squeeze by the door and out of the apartment. But he also said that he was "not saying I'm in the right, for physically opening the door and squeezing through".

55He argues that Ms. Felix was "coerced to create a big thing out of a little thing in order for herself and her friends to have their way."

56Mr. Bristol did not rely on his mother's testimony. I do not put any weight on it because he did not put her evidence to Ms. Felix to give her a chance to respond to what his mother said. This offends the rule in Brown v. Dunn and leads me to conclude that in the circumstances of this case, it is inappropriate to give her evidence any weight.

57In addition, Mr. Bristol's mother was in court for all of Ms. Felix's testimony.

The Crown's Position

58The Crown submits that the text message that Mr. Bristol sent to Ms. Felix (Exhibit 2) is an admission that he assaulted her. Had he been manipulated into admitting that he hit her it would not read as it does. It is "fulsome, it's in reference to other behaviour, it's insightful." Therefore, the Crown argues that the Court should not believe Mr. Bristol's explanation for having apologized for having hit Ms. Felix.

59With regard to Mr. Bristol's fear of Ms. Felix, the Crown argues that "his elaborate and at times unresponsive answers to whether or not he feared for his life or he was afraid she was going to do something... demonstrates the lack of credibility of his rendition of the story."

60The Crown submits that Ms. Felix called the police very soon after the incident. Her demeanour on the 911 call shows that she was very upset.

Analysis

61The Crown has the onus of proving beyond a reasonable doubt that Mr. Bristol is guilty of assaulting Ms. Felix. Mr. Bristol has nothing to prove. Since he testified I will consider the Supreme Court's direction in D.W. v. The Queen, 63 C.C.C. (3d) 397 @ 409:

...if you believe the evidence of the accused, obviously you must acquit...if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit...even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

62After considering all of the evidence, the law and the submissions of the parties, for the following reasons, I conclude that the Crown proved beyond a reasonable doubt that Mr. Bristol assaulted Ms. Felix and I find as a fact that the assault took place as she said that it did.

63My reasons for this are the following.

64In the text, Mr. Bristol confessed to having assaulted Ms. Felix. I did not believe his explanation for having sent it. He testified that he sent it because he wanted to see his son and she would not let him unless he admitted "what he did to her".

65Without more explanation from her, he went on to provide a fairly detailed confession. He said that he hit her, that he yelled at her when he should be communicating with her, and that he loved her because she stood by him when he came out of prison and brought his son to him.

66Another aspect of the situation that leads me to disbelieve that this is a false confession is that in cross-examination he tried to play down the quality of his confession. He said that he "gave in and said, yes, you know I'm sorry for hitting you, whatever, you know, can I see my son." But as is evident from his text message, that is not what he said. His was not a perfunctory confession. I agree with the Crown that this does not sound like a forced confession. It is a thoughtful and somewhat detailed admission.

67In addition, Mr. Bristol testified that as he left the apartment he told Ms. Felix that he was not coming back to her. And he warned her not to try to take his son from him or he would take her to court.

68Mr. Bristol struck me as intelligent and fairly articulate. He knows his rights. He knows that he can take Ms. Felix to family court to get access to his son. He did not have to confess to a crime that he did not commit in order to get access to his son and he knew this.

69This makes his reason for having admitted that he assaulted her implausible and I do not believe him. He had already told her that he was not coming back to her and according to his testimony she was unpredictable and irrational: she fought with him, told him to leave and then asked him back. He testified that she did this numerous times.

70His description of Ms. Felix portrays her as mercurial and unpredictable. In these circumstances, I find it unbelievable that a person like Mr. Bristol would confess to a crime that he did not commit. It is implausible that based on a confession that he hit her he would trust her not to withdraw access to his son the next time that she turned on him as he said that she always eventually did. Mr. Bristol knew that he did not have to make a false confession in order to see his son; he would have just done as he threatened, that is, take her to family court.

71Finally, Mr. Bristol did not cross-examine Ms. Felix on his text message confession. He did not put to her that she told him to admit what he did to her and then she would let him see his son. She did not have an opportunity to answer this allegation. This weakens his evidence that she said this to him and is another factor why I do not believe him.

72With regard to Ms. Felix's evidence, I found her to be credible. The 911 tape demonstrated that when she called the police she was quite upset. Standing alone, this does not prove that Mr. Bristol assaulted her, but it shows that she was upset, which she would have been after being assaulted. She admitted that she did not tell everything about the assault to the police. However, she had a good reason for not having done so: she was afraid that her children would be taken from her if she divulged just how bad the situation was.

73I accept her evidence with regard to the discrepancy concerning the dates of the text message. Her explanation makes sense and is plausible.

74In one of the text messages Mr. Bristol calls her a "brainwashed bitch", which is what she testified he used to call her. This lends credibility to her evidence.

75She admitted that she damaged Mr. Bristol's camera after he shoved her on a previous occasion. This shows that she was willing to admit when she acted aggressively and that she did not try to paint herself as without fault.

76Mr. Bristol cross-examined her, but he did not succeed in undermining her evidence.

77I find that she testified in a credible manner. I accept her evidence as to how the assault occurred.

78These are the reasons why I find Mr. Bristol guilty.