Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Stanislaw Skierski
Before: Justice Paul F. Monahan
Heard on: April 10, June 3, and October 22, 2015
Reasons Released on: October 30, 2015
Counsel:
- Mr. J. Vlacic, for the Crown
- Mr. K. Szopinski, for the defendant Stanislaw Skierski
MONAHAN J.:
Introduction and Overview
1Stanislaw Skierski is charged that:
(i) between the 1st day of March, 2011 and the 31st day of May, 2011 that he did commit the offence of uttering a threat to Halina Skierski to cause death to Halina Skierski contrary to s. 264.1(1)(a) of the Criminal Code of Canada (the "Code"). This count originally alleged that the offence took place during a 31 day period last, past and ending on or about the 31st day of May, 2013. After the testimony of the complainant at trial I permitted the Crown to amend to the current form of the information as outlined above. Reasons with respect to that amendment were delivered orally on April 10, 2015;
(ii) on or about the 29th day of September, 2013, that he did commit an assault on Halina Skierski using a weapon namely a hammer contrary to s. 267(a) of the Code. The information originally alleged that this offence had taken place on October 15, 2013. After the testimony of the complainant at trial I permitted the Crown to amend to the current form of the information as outlined above. Oral reasons permitting this amendment were given on April 10, 2015; and
(iii) during a two day period last, past and ending on or about the 13th day of December, 2013 that he did commit an assault on Halina Skierski contrary to s. 266 of the Code.
2The trial took place on April 10, June 3 and October 21, 2015. The Crown called only one witness namely the complainant, Ms. Halina Skierski. She testified through a Polish interpreter. The defence called one principal witness, namely Mr. Stanislaw Skierski who also testified through a Polish interpreter. The defence also called a police officer, Constable Pawel Papis, who took a statement from Ms. Skierski both at the time of her initial complaint to the police on or about January 17, 2014 and on March 2, 2015 when the charges which are the subject matter of this case were originally scheduled to go to trial.
Evidence
3This is a so-called "she said, he said" credibility case. The case was heard over three days and it is not necessary to set out all of the evidence. I will simply set out a brief overview of the evidence of each witness.
Halina Skierski
4Ms. Skierski testified through a Polish interpreter over two days. She is 62 years of age. She works as a babysitter and housekeeper. She first came to Canada in 1992.
5She said that she had been married to Mr. Skierski for 4½ years. They married in Canada. They knew each other for six months before they were married. They have no children together. She said that she has two daughters, age 39 and 36, from a previous marriage.
6Ms. Skierski and Mr. Skierski lived together in Mississauga when they were married. Mr. Skierski works as a butcher.
7Ms. Skierski testified in chief to three threats and acts of violence from Mr. Skierski which may be briefly summarized as follows:
(i) she said that in or about the Spring of 2011, Mr. Skierski said that he would kill her and bury her on the grounds of the property and then he would finish with himself (the "threat incident");
(ii) she said that on or about September 29, 2013 at their trailer in Terra Cotta, that Mr. Skierski hit her in the head three times with a hammer after which she sought medical treatment (the "hammer incident"); and
(iii) she said that on or about December 13, 2013 while they were in the kitchen at their home in Mississauga that he punched her in the back of the neck/head and grabbed her blouse and sweater by the neck and lifted her up off the ground while expressing obscenities at her. He also threw her up against the wall (the "kitchen incident").
8She did not report the above incidents to the police when they occurred. Rather, on January 17, 2014, she reported the three incidents above to the police (subject to the point that in January 2014 she originally alleged that the threat incident happened in the Spring of 2013 and she said that the hammer incident allegedly happened on October 15, 2013). She testified that on January 17, 2014 they had a minor dispute about a problem that Mr. Skierski had had at the bank concerning a mortgage payment. The problem would appear to have been that they did not have enough money in their account to make the mortgage payment as the amount of the mortgage had gone up unbeknownst to both of them. This resulted in some small charge from the bank which annoyed Mr. Skierski according to Ms. Skierski. Further, she testified that the final straw with her was a comment that Mr. Skierski made to her on or about January 17, 2014 to the effect that Ms. Skierski was treating him badly, as if he had raped her granddaughter.
9It is common ground that when Ms. Skierski went to the police on January 17, 2014 and reported the three 2013 incidents, she did not tell the police that any violence had occurred on or about January 17.
10The charges outlined above were laid against Mr. Skierski on or about January 17, 2014 or shortly thereafter.
11The trial of this matter was initially scheduled to commence on March 2, 2015. On that day, Ms. Skierski gave a further statement to police which was taken as a handwritten note by Constable Papis and signed by Ms. Skierski. The essence of the March 2, 2015 statement is as follows:
victim advised police that she did not… tell everything that happened on the night of January 17, 2014. Victim advised that there was an additional assault by the accused on the victim. Victim forgot to disclose this to police as she was overwhelmed. In the morning of January 17, 2014 at approximately 10 AM Stan returned from the bank, he started to yell at me over $10-$90 the mortgage increased and that they were short $10-$90 on it plus other bills. He kept yelling at me and swearing. I became scared for my safety. I was in the kitchen, he hit me in the back of the head, I hit the sink and then he picked me up by my shirt, told me he will kill me and bury me in the backyard. He then threw me against the wall in the kitchen… I got scared and left the residence.
12The cross-examination of Ms. Skierski on this statement led to great confusion and erratic testimony on her part. At times she testified that she was not assaulted in January 2014 and then at another point she said she was assaulted in January 2014. She said that there had been so much violence in the marriage that she was confused as to dates. I note as well that as concerns the burying in the backyard threat, in cross-examination she said that that was something that he had said more than once during the marriage.
13The detail of Ms. Skierski's evidence on the hammer incident is important to review. Her testimony with regard to the circumstances regarding the hammer incident was as follows. She said that they were at their trailer in Terra Cotta. She said that it was like always. They were having coffee. Everything was good from her side. He seemed nervous and tense. She asked him why he was nervous and he said he wanted to close everything down at noon that day which was a Sunday. She said it was after breakfast and she asked him not to get stressed.
14At one point he was on a ladder with a hammer working on some construction. She said that he was tense and trembling. She bent down to try to get some items off the deck. When bending down she felt a hit. She saw him hit her in the head with a hammer in his hand. There were three hits to her head: one to the back right behind her right ear; the second one towards the middle up near her scalp and the third one to the left behind her ear. After the first hit, the next two hits came very fast.
15She asked him why he did it and he said to make it more interesting. She said to him did you want to kill me? He told her she was a worthless rag and that she should die. His tone was very loud and vulgar. She asked him for ice and he said "die-I don't care". She got scared. She realized she was in danger.
16She walked to the neighbour's trailer half conscious. She said there were some Polish people who lived nearby. They offered help and called for emergency services. They gave her ice for her head but the bumps grew bigger. She can feel them even today and said that there were three bumps on her head.
17She was asked what she told the doctor and she said she told him she did not want to talk about it. The doctor tried to talk to her about it by asking her daughter to leave the room but she saw her daughter still standing at the door. Her daughter had a seven-month-old child she was breast-feeding and Ms. Skierski did not want to tell her apparently so as not to upset her. She was ashamed that at her age she could be in such a "pathological" situation. She was ashamed in front of the doctor and in front of her children.
18She was asked again as to what she told the doctor at the hospital and she said that she could not remember. She agreed that she did not tell the doctor that her husband had hit her with the hammer.
19She said that Mr. Skierski was at the hospital with her and that he went in the ambulance with her. He sat in the hospital emergency department beside her. He was not with her when the doctor asked her about what had happened. She said that Mr. Skierski remained at the hospital when she was there. She said she didn't speak to him when they were there.
20They went to her daughter's house that night after the hammer incident. Her daughter prepared dinner and she said that Mr. Skierski had the "guts to eat". She did not think he was human.
21After the hammer incident they lived under the same roof but slept in separate rooms. As to why she didn't leave him after that incident she said she thought he would initiate a conversation and apologize but he never did.
22In cross-examination it was confirmed that she is currently living in the matrimonial home. Mr. Skierski got most of his personal belongings through a friend who came to collect them.
23At one point she said to counsel that Mr. Skierski now has a fourth woman partner.
Medical Records
24On consent, the parties agreed to mark as an exhibit certain medical records relating to the hospital attendance by Ms. Skierski on September 29, 2013. It was agreed that they were admissible as business records and the Court accepted them into evidence on that basis. The medical records referred to two hematomas on the back of Ms. Skierski's head. There are statements recorded in the medical records that someone told the medical personnel that the hammer had fallen off the roof accidentally.
Constable Papis
25The defence called Constable Papis. The significance of his testimony is that it proved that Ms. Skierski had made the March 2, 2015 statement to him. Constable Papis is Polish speaking and he took the statement from Ms. Skierski in Polish, translated it into English, and read it back to Ms. Skierski in Polish and then had her sign it which she did. As a separate point, he also said the Skierski house was in an orderly condition when he went there on January 17, 2014.
Stanislaw Skierski
26Stanislaw Skierski testified on his own behalf through a Polish interpreter.
27He denied ever threatening his wife or assaulting her at any time.
28He testified that he and Ms. Skierski were married four years ago but he didn't know the date of their marriage. He testified that their relationship was initially idyllic but then after a period of time she began sleeping separately from him. He said that "emotional and sexual matters" became a problem in the marriage.
29He said that throughout the marriage he never raised his voice at his wife. This was notwithstanding the fact that he raised his voice numerous times in giving his testimony indicating a degree of anger towards Ms. Skierski.
30During his testimony, he made a number of gratuitous attacks on Ms. Skierski which were not responsive to questions he was asked by his own counsel. In particular, he wanted the Court to know that he alleged that Ms. Skierski had gone to "crooks" to fraudulently obtain a mortgage. He tried to imply that Ms. Skierski had married him for his money and that he had since learned that she had had a prior relationship with some other man whom she allegedly pursued for money.
31He said he has been a permanent resident of Canada for three years as of March 2015. He got his permanent resident status after marrying Ms. Skierski. She lives in the matrimonial home now.
32While nothing was said about this in chief, in cross-examination he said that she constantly terrorized him throughout the marriage by threatening to call the authorities and have him deported on the basis of some sort of alleged misconduct. She allegedly said to him that he was "one phone call away" from being deported.
33He testified as to the hammer incident at Terra Cotta. He was doing construction on the front of the deck. He was attaching roofing joists together. He left a hammer on one of the joists. He said that Ms. Skierski was bent over helping to pick up some tools. He said that a hammer accidentally fell from the roof addition and hit her in the head. He said that he apologized at the time, that she swore at him and called him a son of a bitch and other names, and that she asked him to get some ice for her. When he went to get the ice, she ran to the neighbour's house.
34He identified the hammer which he said was the hammer that fell on Ms. Skierski. It was marked as an exhibit at trial. He testified that he took water-based paint to the hammer on May 31, 2015, about three days before he testified at trial. He said that he painted the top of the hammer and then he touched it against a piece of paper to show how it would make two connections a few inches apart. There was no objection to this evidence. The piece of paper was marked as an exhibit. This was apparently done in support of some theory that Mr. Skierski put forward to try to explain how Ms. Skierski had two bumps on her head having only been hit once with the hammer when it fell by accident according to Mr. Skierski. The Court made it clear in argument to defence counsel that this evidence was of no value as Mr. Skierski was not an expert and his evidence on this point could be given no weight.
35Mr. Skierski tried to argue his case at times during his cross-examination including put forth the point that Ms. Skierski had said that she had been hit three times but the medical records only showed two bumps on her head.
The Law
36The Supreme Court of Canada has provided the legal framework to be applied when determining credibility cases such as this one. In particular, in R v. W.(D.), [1991] 1 S.C.R. 742 at para. 28, the Supreme Court of Canada said trial judges and juries should use a three-step process as follows:
(1) First, if you believe the accused, you must acquit;
(2) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit;
(3) Third, even if you are not left with a reasonable 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 of the guilt of the accused.
37In applying the foregoing framework, it is important to recognize the following further points:
(1) The burden of proving all of the elements of the offence beyond a reasonable doubt remains on the Crown throughout. There is no onus on the accused to prove anything and the burden of proof never shifts to the accused: R v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152 at paras. 9.
(2) If after a careful consideration of all of the evidence, the Court does not know who to believe, then the Court must acquit: R v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152 at paras. 10-12.
(3) Reasonable doubt may survive a finding that the complainant is credible: R v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 47.
(4) The Court can accept or reject all or part of any witness' testimony. So even if an accused is disbelieved, parts of his or her testimony may be accepted and raise a reasonable doubt: R v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152 at paras. 11. Even if the accused is entirely disbelieved and the trier of fact is not left in a reasonable doubt by the evidence of the accused (or other conflicting evidence), in order for there to be a finding of guilt the trier of fact must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty.
(5) The Court is not to treat the assessment of the evidence as a credibility contest by simply preferring the evidence of the Crown's witnesses over the defence's witnesses: R v. Hull, [2006] O.J. No. 3177 at para. 5. However, the Court is not prohibited from assessing the accused's testimony in light of the evidence as a whole including the complainant's testimony. It must be recognized that in carrying out this exercise one possible outcome is that the Court will be left with a reasonable doubt concerning the accused's guilt: Hull at para. 5. In applying the W.D. framework a trial Court can reject the evidence of an accused based on a considered and reasoned acceptance of a complainant's testimony. However, this can only be done where an accused's evidence is given a full and fair consideration and the evidence as a whole establishes guilt beyond a reasonable doubt: R v. J.J.R.D., 215 C.C.C. (3d) 252 at para. 53 and R v. Jaura, [2006] O.J. 4157 at para. 20.
(6) Inconsistencies on minor matters or matters of detail are to be expected. If there is an inconsistency on a material matter about which an honest witness is unlikely to be mistaken, it can demonstrate a carelessness with the truth: R v. M.G., [1994] O.J. No. 2086 (C.A.) at para. 23.
(7) The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B., 79 C.C.C. (3d) 257 (S.C.C.) at page 300; R v. M.W.M., [1998] O.J. No. 4847 (C.A.) at para 3. However, the defence does not have to prove a motive to lie by the complainant. A motive to lie is also relevant to the testimony of the accused as a witness. However, this is only one consideration in assessing the evidence of an accused and the Court must be particularly cautious not to ignore the presumption of innocence and to make an assumption that an accused has a motive to lie simply to secure an acquittal: R v. Murray, 115 C.C.C. (3d) 225 (Ont. C.A.) at para 11-14.
38The Supreme Court has said the following about the meaning of reasonable doubt:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high: R v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.
39The Supreme Court of Canada has also stated that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R v. Layton, 2009 SCC 36 , 244 C.C.C. (3d) 417 at para. 36 and R v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144 at para. 242.
Analysis and Application of the Law to the Facts
40The defence submits that Mr. Skierski was a credible witness and that Ms. Skierski was not. The defence submits that the evidence of Mr. Skierski should be believed or, alternatively, that it at least raises a reasonable doubt.
41The Crown submits essentially the opposite of the defence's position. The Crown takes the position that Mr. Skierski was not a credible witness and that his evidence does not raise a reasonable doubt. The Crown submits that the only issue is whether the Crown has proved its case beyond a reasonable doubt, the third step in the W.D. framework. The Crown acknowledges that there were issues with some of the evidence of Ms. Skierski but nevertheless the Crown submits that she was credible and that, especially in respect of the hammer incident, the Crown has proved its case beyond a reasonable doubt.
42Turning to the W.D. framework, I consider that Mr. Skierski was not a credible witness. He seemed determined to take every opportunity to cast aspersions on Ms. Skierski rather than simply answer the questions he was asked. I note in particular his evidence concerning allegations that she had fraudulently obtained a mortgage; his implication that she had, before he met her, taken another man for money; his repeated complaints about her failure to sleep in the same bed with him except when she wanted physical attention; and his attempts to argue the case based on the medical records by pointing out that the records only noted two hematomas rather than three (as Ms. Skierski had alleged that she had been hit three times with the hammer). Further, the suggestion that he never raised his voice in the marriage struck me as absurd given that he was unable to give his testimony in court without raising his voice.
43Notwithstanding that I did not find him to be a credible witness, the real issue in my mind is whether Mr. Skierski is to be believed or whether his evidence raises a reasonable doubt when he says that he did not threaten Ms. Skierski nor did he assault her. Of course, even if his evidence does not raise a reasonable doubt, I must still consider whether the Crown has proved the allegations beyond a reasonable doubt.
44Mr. Skierski's evidence cannot be considered in a vacuum and must be considered in light of Ms. Skierski's evidence. I found her to be largely a credible witness but there were issues regarding her reliability and, to some degree, her credibility. In particular, the March 2, 2015 statement to Constable Papis presents a major unexplained inconsistency in my view. It appears to be an amalgamation of the threat incident and the kitchen incident but this time they are said to have occurred on January 17, 2014, the day she went to police. It is common ground that when she went to police she made no mention of there being any violence on January 17. She reiterated that in her evidence at trial although at another point in her evidence she said that there was violence at the time of the reporting to the police in January 2014. She seemed extremely confused by the March 2, 2015 statement and had great difficulty answering questions about it in cross-examination.
45In my view, the March 2, 2015 statement seriously undermines, at a minimum, the evidence of Ms. Skierski concerning the threat incident and the kitchen incident. In my view, there really was no satisfactory explanation given for the inconsistency between the March 2, 2014 statement and her original statement to police on January 17, 2014. This is aside from the inconsistency concerning her allegation to police on January 17, 2014 that the threat incident occurred in 2013 and her testimony at trial that it occurred in 2011. In my view, there was no violence that occurred on January 17, 2014. Therefore, the March 2, 2015 statement is either a statement of a confused witness or a fabrication.
46In my view, the Crown has not proved beyond a reasonable doubt that the threat incident or the kitchen incident occurred. I recognize that I have found that Ms. Skierski was largely credible. Nevertheless, a reasonable doubt can survive a credible complainant. My finding that the Crown has not proved the threat incident and the kitchen incident beyond a reasonable doubt may be viewed as resting on either the second or the third step of the W.D. analysis. My determination in this regard follows primarily, but not exclusively, with the unexplained inconsistencies arising from the March 2, 2015 statement. It is also based on the somewhat erratic nature of Ms. Skierski's testimony in general. Considering the significant problems with Ms. Skierski's evidence on the threat incident and the kitchen incident and considering Mr. Skierski's denial that those allegations occurred, I have a reasonable doubt concerning these allegations and I consider that the Crown has not proved these allegations beyond a reasonable doubt.
47The more difficult question is whether the Crown has proved the hammer incident beyond a reasonable doubt. The hammer incident is somewhat different than the other two incidents. The Court has the evidence of Ms. Skierski who I have found to be largely credible who says that Mr. Skierski hit her with a hammer three times in the head. We have the evidence of Mr. Skierski who denies it and says the hammer accidentally fell from the structure that was being built when he moved the ladder and Ms. Skierski was bending down gathering tools. The medical records indicate that there were two hematomas on the back of Ms. Skierski's head on September 29, 2013 when she attended at the hospital. Further, there is evidence that she ran to the neighbours' house after the incident which the Crown submits lends some support to the argument that something more than an accident had occurred with Mr. Skierski, otherwise the Crown asks why would she run to the neighbours. I note further that the medical records contain notes from the medical personnel that someone told them that a hammer had accidentally fallen and hit Ms. Skierski.
48To say that I am suspicious of Mr. Skierski is an understatement. I believe that he probably did hit Ms. Skierski with a hammer on September 29, 2013 but I cannot say that the Crown has proved its case beyond a reasonable doubt in this regard. My reasons are as follows. First, the hammer incident had no context in Ms. Skierski's evidence. By that I mean, she said that from her perspective everything was fine that day although Mr. Skierski seemed tense. There appears to be nothing that precipitated the alleged attack. When she asked him why he did it (hit her with the hammer) he allegedly said "to make it more interesting". This is nonsensical. Perhaps more sensible from a contextual perspective was her evidence that he said to her at or around the time of the hammer incident the terrible statements that she was a "worthless rag" and "you should die long time ago (sic)". Nevertheless, the Court is left with a confusing and questionable context for the alleged hammer incident. Part of the confusion may arise from the interpreter, but part of it does not.
49Second, while I have found Ms. Skierski to be largely credible, I emphasize again that a reasonable doubt can exist notwithstanding a credible complainant. Ms. Skierski's testimony was erratic, confusing and difficult to follow. One example of her confusing testimony arose when she was being asked about the December 2013 kitchen incident, and she responded (at page 94 of the April 10, 2015 transcript):
"but wait a moment, wait a moment. Maybe right now you mixing the other accusations about him have asking me after I left the church one day, when I left the church at 10, right? Maybe you just thought about this and then-- but right now I don't know what you are getting at, sir, because-he is harassing me. When you had asked me on the day-on his birthday, he made a birthday event on my backyard, harassing me at 130 in the morning"
50The foregoing evidence concerning some interaction at a church and a birthday event was never mentioned before and never mentioned after. These appeared to be statements about events coming out of nowhere from Ms. Skierski and they clearly undermine her reliability. This is but one example of many of this type of testimony from Ms. Skierski.
51Third, the March 2, 2015 statement raises reliability concerns about Ms. Skierski's evidence and I must say, notwithstanding the finding that she was largely credible, does raise questions in my mind as to whether she was fully and completely credible in her testimony. While Mr. Skierski appeared to have the bigger axe to grind, Ms. Skierski too appeared to be very angry with Mr. Skierski and, at times, leveled irrelevant insults against him including the suggestion that he now had a new partner in his life and had numerous ones before and suggestions that he had not been honest with her about the number of children that he had. In my view, the March 2, 2015 statement alleges an assault that did not occur on January 17, 2014 or at all. It is an amalgamation of the threat incident and the kitchen incident. It is not just a mix up as the date of the kitchen incident. I say this because the kitchen incident never included a threat to bury her in the backyard. Accordingly, the March 2, 2015 statement gives me a serious concern about Ms. Skierski's testimony on the hammer incident.
52Fourth, the medical records lead to many unanswered questions. It is true that the medical records show two hematomas and this lends some support for Ms. Skierski's evidence that she was hit in the head with a hammer. However, it does raise the question of why there were not three hematomas noted which supports the defence in some respects. Quite possibly, the doctors were not counting the hematomas per se and may have missed a third one. Or perhaps Ms. Skierski was mistaken and she was only hit twice. Further, it is not clear as to when she got the two hematomas on her head as noted in the medical records. Were they both fresh from that day? One cannot tell by looking at the medical records alone. Also, the records disclose that someone, perhaps Ms. Skierski, told the medical personnel that the hammer fell accidently. The overall point on the medical records is that they provide some support for both the Crown and the defence. In a reasonable doubt analysis, when considered with other factors, the benefit of the doubt must go to the defence.
53Fifth, the fact that she went to the neighbours' house arguably supports the Crown's theory by it could be that she went to the neighbours' house because she was upset about the fact that her husband had foolishly left a hammer on the structure which had fallen on her by reason of his negligence rather than his intentional acts.
54Considering all of these points and the evidence as a whole and the significant burden that rests on the Crown in a criminal case, I have determined that the Crown has not proved the hammer incident beyond a reasonable doubt.
Conclusion
55For the reasons given, there will be acquittal on all of the charges.
Released: October 30, 2015
Justice Paul F. Monahan