Court Information
Court File No.: Halton 1347/15
Date: 2016-08-29
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Morgan William Joseph Roberts and Ashley Vivian
Judicial Officer and Counsel
Before: Justice L.M. Baldwin
Heard on: April 25, 26 and 27, 2016
Reasons for Judgment released on: August 29, 2016
Counsel:
- A. Stevenson — counsel for the Crown
- B. Neil — counsel for the accused Morgan William Joseph Roberts
- The accused Ashley Vivian — on her own behalf
- D. Hotz — appointed as s. 486 counsel
BALDWIN J.:
Charges
[1] Morgan William Joseph Roberts and Ashley Vivian stand charged, on or about the 3rd day of January in the year 2015, at the Town of Oakville, with assaulting Nicole Vivian contrary to s. 266 of the Criminal Code.
[2] Morgan William Joseph Roberts is further charged with an assault on Nicole Vivian, also on January 3rd, 2015, at the Town of Oakville, contrary to s. 266 of the Criminal Code.
[3] Ashley Vivian is further charged, that on or about the 3rd day of January in the year 2015, at the Town of Oakville, she did resist Constable Wozny, a peace officer, to wit: a police constable for the Region of Halton engaged in the execution of her duty, by being combative during the lawful arrest of herself, contrary to s. 129(a) of the Criminal Code.
[4] The Crown proceeded summarily.
[5] At the outset of trial, date, jurisdiction, identity and the fact that Nicole Vivian sustained injuries were admitted. The causation of those injuries was not admitted.
[6] The Crown called the complainant and four Halton Regional Police Officers.
[7] The defendants did not call any evidence.
[8] At the end of the trial, counsel for Mr. Roberts submitted that the complainant was not a credible or reliable witness and that the Crown had failed to prove Mr. Roberts' guilt on 2 counts of assault beyond a reasonable doubt.
[9] Ashley Vivian agreed that her sister is not a reliable or credible historian.
[10] Ashley Vivian submitted that Officer Wozny did not announce that she was a police officer. She did not know that she was under arrest. Since Ashley Vivian did not testify, there is no evidence to support those two submissions.
Background
[11] The events in question took place at a wedding reception in Oakville and later back in a hotel room.
[12] Nicole Vivian was 32 years of age when she testified at trial. She has two children aged 9 and 7 years. Morgan Roberts was her fiancé at the time.
[13] Ashley Vivian, aged 31 years at the time of trial, is her younger sister.
[14] All three of them lived in Orillia.
[15] Nicole Vivian had been invited to attend the wedding of Susan Brasier, who had been her best friend in high school. The wedding was on January 3rd, 2015 in Oakville. The Church service was at 1:00 p.m. with a reception starting at 4:00 p.m. at the Harbour Inn Banquet Hall.
[16] Nicole had booked a hotel room just five minutes away from the venue.
[17] Originally, Nicole had invited Morgan to attend the wedding with her, but he declined due to work. Then Nicole invited her sister to attend the wedding with her and her sister accepted as she knew some of the attendees from high school as well. At the last minute, Morgan decided he would attend.
[18] The three of them left Orillia at about 10:00 a.m. and arrived at the hotel room in Oakville at approximately noon.
[19] Nicole and Ashley attended the church wedding. Morgan stayed in the car.
[20] After the wedding ceremony, the three of them returned to the hotel room where alcohol was consumed.
[21] The three of them attended the reception and all of them consumed more alcohol. They were told to leave the reception. Then they returned to the Quality Inn hotel room.
[22] On January 3, 2015, at approximately 11:00 p.m., police received a dispatch call that Nicole Vivian was being attacked by her fiancé and her sister.
[23] As soon as the police exited the elevator on the third floor they could hear screaming, shouting and loud arguing coming from room #302.
[24] Police arrived outside room #302 and could hear a female asking for help.
[25] After kicking in the door to the hotel room, they found Nicole barricaded in the bathroom with Ashley and Morgan.
[26] Nicole was crying and had obvious injuries to her face, including a goose egg-shaped mark on the right side of her forehead, welts and redness to both sides of her cheeks and redness to her neck and collar bone area. The police called EMS and Nicole was taken to hospital.
[27] Ashley was highly irate and verbally and physically aggressive with police. She was taken to hospital due to her advanced state of intoxication and aggressiveness.
[28] Exhibit #1 consists of the ambulance and hospital records for Nicole. They note the following injuries/complaints:
- Contusion to right forehead
- Bite marks to cheeks (no break to skin)
- Scratches to chest
- Loss of consciousness (LOC) for 1 to 2 seconds
- Redness to neck
- Fever and pain
- Head trauma
- Multiple contusions, including both elbows
- Shoulder pain
[29] Exhibit #2 consists of 18 photographs taken of Nicole's various injuries by the police at the hospital.
[30] Nicole was treated with Tylenol, given an antibiotic for her infection, and advised about head trauma. She was driven home by police.
[31] This judgment is about what happened to Nicole at this wedding reception and back at the hotel. The event certainly did not go as she had planned.
[32] In order to understand these chaotic events, I will start at the end of the evening when the police arrive at the Quality Inn located on Bronte Road in Oakville.
Summary of the Testimony of Officer Conrad Bertasson
[33] He has been an Officer with the HRPS since 2007.
[34] He received a dispatch call at 11:00 p.m. on Saturday January 3, 2015 that a victim, who was locked in a bathroom, was being attacked by her fiancé and her sister.
[35] He arrived at the Quality Inn at 11:07 p.m. in the company of Officers Wozny and Rocca.
[36] They went to the reception desk to get the key for room #302.
[37] As they exited the elevator to the third floor, he immediately heard screaming, shouting and loud arguing.
[38] He opened the door to room #302 with the key, but the latch was on the inside of the door. Through the four-inch opening in the door they yelled 'Police, open the door'. He could hear a female asking for help. No one in the room opened the door.
[39] Officer Rocca kicked in the door. Immediately upon entering the room, he could see a commotion going on in the bathroom and it appeared that someone was being hurt.
[40] Morgan was right at the bathroom door.
[41] He took Morgan out of the bathroom, put him face down on one of the beds and handcuffed him. Morgan did not resist and was cooperative with being cuffed.
[42] Ashley was taken out next. She was irate. Officer Wozny was dealing with her. There was a lot of verbal and physical resistance from Ashley.
[43] Officer Rocca took Nicole out last.
[44] Officer Bertasson got information from Nicole. She was crying and had obvious injuries to her face, forehead, cheek, neck and collarbone area. Officer Bertasson called EMS.
[45] At 11:16 p.m., he placed Morgan and Ashley under arrest for assault. By that time, other officers had arrived.
[46] Ashley continued to be irate and aggressive with police.
[47] Officer Bertasson noted that there was a crack in the bathroom door and damage to the lock.
[48] The phone had been knocked off a side table. The room was messy with towels and pillows on the floors.
[49] There was an empty 750 mL bottle of rum and a half empty 750 mL bottle of Baileys in the room.
[50] The room was vacated at 11:49 p.m.
Summary of the Testimony of Officer Mathew Rocca
[51] He has been an Officer with HRPS since 2001 and prior to that was an Officer in Niagara.
[52] At 11:01 p.m. he was dispatched to this 911 call reporting an altercation where a female had locked herself in a bathroom and needed assistance. Another woman and a man were in the room as well.
[53] He arrived at 11:09 p.m. and Officer Bertasson and Wozny were already there.
[54] As the three of them got off on the third floor he heard female voices screaming.
[55] Officer Bertasson used the key card to open the door, but the door had been chain locked.
[56] There were repeated loud directions to 'open the door – Halton Police'. There was no response.
[57] Officer Rocca kicked in the door and saw a man and two women in the bathroom. Some kind of fight was going on.
[58] He took control of Nicole and observed a goose egg on the right side of her forehead and a welt on her right cheek. Nicole was emotionally distraught. He directed her to lie on one of the beds and she complied.
[59] Officer Bertasson had Morgan under control. Officer Wozny was having difficulty with Ashley. Ashley was flailing her arms and legs and physically resisting and not complying with commands.
[60] Ashley's behaviour was hostile and belligerent.
[61] Officer Rocca had to assist Officer Wozny in handcuffing Ashley. Ashley continued to be physically resistant and it was clear right away to Officer Rocca that he would have to use hobble restraints (leg straps) on Ashley to prevent her from kicking.
[62] He had to get these restraints from his cruiser. In his experience, it is not common to need to use hobble restraints.
[63] Sergeant Nicholas assisted him in putting on the hobble restraints. Ashley continued to be hostile and belligerent.
[64] Officer Rocca escorted Morgan to his cruiser and took him to the Oakville station for booking.
[65] He noted that Morgan was wearing gray shoes, blue jeans and a long shirt. His eyes were glassy and bloodshot and he had an odour of alcohol on his breath.
[66] In answer to a question put to him by Ashley Vivian in cross-examination, Officer Rocca stated, "At no point do I recall you not resisting".
Summary of the Testimony of Jennifer Wozny
[67] She has been an Officer with HRPS for 13 years.
[68] She received a dispatch call at 11:03 p.m. with information that a 911 call had been made reporting that a lady had locked herself in a bathroom in room #302 and was fearful for her life.
[69] Officer Wozny arrived on scene at 11:08 p.m. Officers Bertasson and Rocca were already on scene.
[70] Once they arrived on the third floor, Officer Wozny could hear yelling, banging and swearing by a male and female voices coming from room #302.
[71] After they tried to enter the room using the card key, the officers yelled for the occupants to open the door. There was no response. The yelling continued and they could hear a female voice yelling for help. Officer Rocca kicked in the door.
[72] Officer Wozny noted damage to the bottom left part of the bathroom door and it appeared that the door had been kicked in. She also noted a swiss army knife on the ground near the bathroom door.
[73] Officer Wozny saw Ashley aggressively chasing after Morgan and Nicole, who had been brought out of the bathroom. Officer Wozny grabbed Ashley's arm and Ashley pulled away.
[74] Officer Wozny testified that she had grounds to arrest Ashley based on the content of the 911 call, but Ashley was too much out of control. She was yelling, sweating and spitting. Officer Wozny described Ashley's behaviour as being "wild".
[75] In order to handcuff Ashley, she had to throw her over her hip and onto the ground. Ashley continued to resist on the ground and Officer Rocca had to help with placing the handcuffs on Ashley. Ashley continued trying to get up and was kicking her legs out aggressively. She was spitting in Officer Wozny's direction.
[76] Ashley was stood up for a pat-down search, but she continued to kick her legs backwards and had to be grounded again.
[77] A decision was made that hobble restraints were required because Ashley continued to be angry and was not calming down.
[78] Officer Wozny testified that it took a lot of effort on her part to keep Ashley on the ground.
[79] Ashley was wearing PJ pants, no shirt, and 2 normal bras, one layered on top of the other.
[80] Officer Stephane Verreault and a training officer arrived and they continued to hold Ashley down so Officer Wozny could get a break and stand up.
[81] Officer Wozny called an ambulance for Ashley based on her behaviour. She wanted Ashley assessed before she was taken to lock-up.
[82] Officer Wozny testified that Ashley had to be restrained using chest buckles when she was placed on the stretcher by EMS. Ashley was yelling and cursing at the EMS workers.
[83] Officer Verreault had to accompany her in the ambulance due to her behaviour. Officer Wozny arrived at the hospital around midnight where Ashley continued to be disruptive. She was yelling and swearing at everyone, including people in the public. Due to her behaviour, Ashley was placed in a seclusion room.
[84] Officer Wozny testified that Ashley would laugh uncontrollably and then sob or cry. Her outbursts were sporadic and came out of nowhere.
[85] She was with Ashley at the hospital for over two hours. They left at 2:14 a.m.
[86] She noted that Ashley had bruises on both of her biceps and left breast area. These injuries could have been caused when Ashley was being grounded in the hotel room.
[87] On the drive to 20 Division Ashley vomited in the cruiser. She vomited again in the booking room.
[88] In answer to a question by Ashley in cross-examination, Officer Wozny stated that their presence as police officers was very visible in the hotel room.
Summary of the Testimony of Officer Stephane Verreault
[89] He has been an Officer with HRPS since December of 2010.
[90] He responded to the scene at 11:27 p.m. with his recruit, Officer Simpson. Officers on scene had requested assistance.
[91] When they arrived, Ashley was being restrained on the floor by Officer Wozny. Ashley was handcuffed and hobbled and she was yelling.
[92] Officer Verreault also described the hotel room as being messy.
[93] The paramedics arrived with a stretcher and he assisted with putting seatbelt restraints on Ashley.
[94] Ashley continued to resist, pull away, yell and be verbally aggressive with the police and the paramedics.
[95] This behaviour continued en route to hospital in the ambulance and once at the hospital.
Admissions
[96] It was admitted by both defendants that Nicole had called the police using her cell phone when locked in the bathroom.
[97] It was admitted that Nicole had texted Kyle Paradis (one of her children's father) in the bathroom and that he also had called the police.
[98] It was admitted that while being assessed at the hospital, at 2:15 a.m., Nicole's blood alcohol content was below the legal limit and that she had not consumed any drugs.
Summary of the Testimony of Nicole Vivian
(Note: Nicole was on the witness stand for 2 days. The transcripts of her testimony comprise 132 pages)
[99] Nicole was not feeling physically well on the day of these events. She had a fever and pain in her back. She had a fever blister/cold sore below her nose which is usually a sign that she is pretty sick. Her body was sore all over and she felt really fatigued and tired. She had diarrhea and a bit of vomiting.
[100] She had not yet seen her doctor and did not realize that she had an infection.
[101] Nicole made it clear in her evidence that she had asked her sister and fiancé to help take care of her because she was not feeling well and because this was an important event for her and she wanted everyone to have a good time.
[102] The first assault alleged against Morgan occurred at the reception.
[103] Unbeknownst to Nicole at the time, her sister had fallen on the dance floor and had broken some glass. Because of her behaviour, the three of them were asked to leave.
[104] Morgan was trying to facilitate this, but Nicole did not see it like that at the time. In her evidence she described it various ways including the following:
I was coming out of the washroom and he had grabbed me and was expressing we needed to leave and he was upset and I was trying to calm him down and try not to make a scene. So, that wasn't working.
So, I went back into the washroom, thinking he might just, sort of, you know, leave me alone, figure out, you know, go get Ashley or something, get ready to leave. But, he didn't.
He waited for me to come out, and then, sort of, did the same thing. Pinned me up against the wall and was saying abusive things and I was embarrassed. And I kept just trying to say, like, be quiet. We're just trying to have a good time.
I was hoping to get another drink before we left, although, in reflection, I realized I didn't need one, but it just was helping with the pain, I think, is why I wanted to have some more.
But, I realize that things had gone sour and it was time to leave, so I was just trying to talk him down and he escorted me outside and continued to, sort of, hold me and yell at me and.... [Transcript #1, page 9, lines 19-31]
Q. Can you describe for Her Honour how he grabbed you? What part of his body grabbed what part of your body?
A. With his hands, he grabbed me on the shoulder...shoulders and arms.
Q. And how much force was he using in doing that?
A. Um, a good amount. I wasn't in pain, but it was enough where I couldn't move.
Q. And was that something that you were consenting to him doing?
A. No, I was asking him to stop because I couldn't really see at the time, but I had the sense that people were just around the corner, listening.
Q. Now, you said that he was upset and you also said that he was saying abusive things that were making you embarrassed. And if you could tell Her Honour what you recall him saying and it's okay if language is involved. That's something that we're used to hearing in court.
A. Um, okay. So, he kept asking me, like, why I had brought him and that he knew that I was going to do this and that I was trying to, um, have sex with everyone at the party. And that I was just a big slut. And, um, he swore and...and he, kind of, just kept repeating those...those reasons.
Q. When you say that he swore, can you remember what it was that he was saying to you?
A. Um, I'm pretty sure there was the fuck word instead of sex and...yeah, lots of F bombs. [Transcript #1, page 10, lines 3-39]
A. Um, we, kind of, swatted at each other a little bit. Um, I...I got hit on my face and I had had a cold sore, so it really, really hurt. So, I took a couple swats just to protect myself, but I...I don't think that I...um, I don't think that I hit him. I don't know. I might have swatted his face a little bit.
And then, on the way down the stairs, he had, sort of, picked me up by my elbows and carried me to the stairs and, sort of, dragged me down the stairs, but pushing me, because he was behind me. And then, in the middle of the stairs, he pinned me and was yelling at me, I remember, and it was extremely embarrassing because the entire family was right there. [Transcript #1, page 12, line 26 to page 13, line 5]
A. He had a hand, sort of, clenched on my back and another hand on my arm, sort of, guiding me down the stairs. [Transcript #1, page 13, line 14-15]
Q. And did he seem to be impacted at all by the fact that the family and the bride was present?
A. No, I think he was in a rage. [Transcript #1, page 14, lines 4-6]
[105] On the cab ride back her sister was intoxicated, surly and rude.
[106] Nicole felt extremely offended by both Morgan and Ashley's behaviour.
[107] Nicole testified that although she had consumed approximately 10 drinks throughout the day, she did not feel intoxicated. Because she was not feeling well, the alcohol did not affect her like it usually would. She felt upset and her back was still hurting.
Back at the Hotel Room
Q. And what can you tell us about what happened when you got back to the hotel room?
A. As soon as I walked through that door, it was on. Um, straight up against the wall. Pinned to the walls. Screaming in my face. Morgan was screaming in my face. Um, Ashley was chiming in. Oh, you should listen to him. He loves you.
And I just wasn't saying anything, because I know that passivity begets aggression, aggression begets aggression, but assertiveness thwarts aggression, so I was trying to be assertive and show that I wasn't going to engage in combat. But, I also wasn't just going to cower.
Q. Okay. So, first of all, when you say that you were pushed up against the wall, who was it that did that?
A. Morgan.
Q. And when you said that he was screaming in your face, what was he saying?
A. Um, pretty much repeating himself. Why would you bring me? You're just a stupid fucking slut. You want to fuck everybody at the wedding, etcetera, and so on.
Q. Okay. So, how much force did he use when you were pushed up against the wall?
A. Um, a fair amount. I couldn't stand, so I was up off the ground.
Q. Can you explain that further what you mean by that?
A. Like, he had me pinned up against the wall. Like, I was barely putting any weight. He was, kind of, holding my elbows again a little bit and lifting me up a bit, making sure I couldn't get away at this time.
Q. All right. Were you saying anything to him at this point?
A. Um, at this point, um, I think I had said, you need to relax. Um, please just let go. I just want to go to sleep. I just want to go to sleep. I just want to go to sleep. I'm not feeling well. I'm in pain. Please stop.
Q. All right. How long were you pinned up against the wall for?
A. Um, maybe about two minutes.
Q. And what happened then?
A. I dropped to the ground to get out of his grip.
Q. And what did he do at that point?
A. Um, he came with me and we grappled and... [Transcript April 25, 2016, page 19, line 16 to page 20, line 27]
Q. So, what position are you in when you're on the floor and what position is he in of what's happening?
A. Um, he was still on top of me, like, pinning me. He kneeled on me. Um, around my waist, he had his legs and...and he stood up quick and lifted me up with him and threw me on the bed.
Q. Was he saying anything to you when he had kneeled on you on the floor and then thrown you on the bed?
A. He was actually telling Ashley that I had cheated on him 15 times, that I was flirting with people at the wedding, you know, trying to get her riled up so she'd beat me up, too. Real nice.
Q. How much force was used when you were thrown on to the bed?
A. A good amount of force. Enough that I bounced back up. [Transcript April 25, 2016, page 21, line 22 through to page 22, line 5]
A. He was straddled across my waist, um, and, sort of, had his, like, legs pinning my legs down and he had had his hands holding my hands down, completely pinned down.
Q. And were you able to get away from him?
A. No.
Q. Did you want to get away from him?
A. Yeah, I was pretty upset. My sister didn't have any clothes on at the time and she was also on her moon (ph) time so I was not impressed because I didn't want to get blood on my face and she's hovering around me.
And she kept screaming, I don't have my clothes on. So, I knew I was in big trouble. Um, I was struggling a bit, but like I said, I know aggression begets aggression.
So, at this point, when he let my arms go, I covered my chest across my...both arms across my chest and I started praying, um, the Lord's prayer and I started repeating all of our children's names and saying, you know, why are you doing this? We have children to go home to. This is not going to be okay tomorrow. [Transcript April 25, 2016, page 23, line 10 to 30]
A. Um, I just remember being pinned down and then I remember being bit on my face really hard.
Q. All right. Who bit you on your face really hard?
A. My sister, Ashley.
Q. Are you able to recall where on your face you were bitten?
A. Um, it was my left cheek.
Q. All right. And when you say really hard, did it break the skin?
A. Almost. It made me scream and I don't...I've got a pretty good pain tolerance. It scared me.
Q. Did she say anything before or after doing that?
A. Um, I can't remember.
Q. All right. What...what else happened while you were on the bed?
A. Following the bite, I...Morgan covered my body with his body and then he got back up and then I was hit...struck on the head really hard on my right side.
Q. Who did that?
A. My sister, Ashley.
Q. Are you able to describe how she did that?
A. Um, yeah. It was like hammer fist style.
Q. When you say hammer fist, can you explain that in words and show us gesturing in the witness box what you mean by hammer fist?
A. Kind of like an arm and hammer, you're bringing the mallet down.
Q. Okay. So, as if you were holding on to the arm of a hammer and...
A. Yeah.
Q. ...actually hammering something?
A. Yeah.
Q. And...
A. Yes.
Q. And how much force did she use? You said struck on the head really hard. Did it injure you?
A. Yes, it has and, um, I actually have some vision deficits now a little bit from it. Like, I have floaties and I'd had two goose eggs. But the main goose egg, I had had for six weeks. I had to stay home from my classes because I couldn't be seen in public.
Q. So, let me just make sure that we're all clear. So, before going to the wedding, did you have any injuries of any kind, other than telling us that you had a fever blister?
A. No, just the fever blister.
Q. All right. So, now that you've told us that while you're on the bed, and you're being held down, you've been bitten by your sister and you've been struck in a hammer style in the head giving you a goose egg, what other injuries did you get or what other physical contact was there while you were on the bed?
A. I was bit again on the opposite cheek.
Q. And who did that?
A. Ashley. And then, I was hammer fisted again on the opposite side of my forehead, which also bruised for over a month, and goose egg, too. [Transcript April 25, 2016, page 25, line 23 through to page 27, line 16]
Q. All right. Was there any further physical violence from Mr. Roberts towards you after he covered your body with his body?
A. Um, no...I...yes and no. Um, so, at this point, they...Ashley and Morgan had begun to grapple. They had had their hands tied and they were grappling and their attention was off of me so that's when I found my opportunity to get up, so I pushed them off of me and I flew up and I ran to the bathroom and locked the door, barricaded myself. [Transcript April 25, 2016, page 28, lines 19 to 27]
[108] Vivian locked herself in the bathroom. She used her cell phone to text Kyle Paradis and Joey Newman, who are the fathers of her two children. She told them she needed help and was scared and what was happening.
[109] Someone began booting/kicking at the bathroom door really hard trying to get in.
[110] At this time Nicole realized that her cell phone had an emergency button on it. She pressed it and was able to make a 911 call to the police.
[111] Morgan used something to pick the lock on the bathroom door and he came in. He grabbed her from behind again and then let Ashley into the bathroom. Ashley said "I'm going to fucking kill you". Nicole was afraid for her life.
[112] And then the police came in.
Summary of Cross-Examination by Mr. Neil for Morgan Roberts
At the Reception
[113] Nicole agreed that at the reception she became aware that Morgan also was not feeling well. He had spent quite a bit of time in the washroom with stomach issues.
[114] Nicole repeated that at the reception the alcohol she had consumed was affecting her vision. She was not feeling dizzy, she was just "blacking out and stuff." (Transcript April 25, 2016 p. 55) She was feeling "cloudy" but other than that she was of complete sound mind, she was not swearing, she was being very polite and had full control of her actions.
Q. I'm going to suggest what occurred outside the bathrooms when you say you were pinned to the wall, is that actually Morgan had been informed already and asked that you...that there was a request for you guys to leave the wedding at that point? Is that possible?
A. Yeah, that's possible.
Q. And I'm going to suggest what occurred at that point was Morgan was saying, we've got to go, we've been asked to leave, let's go?
A. Yeah, for sure.
Q. And I'm going to suggest what he was doing from that point when you're going down the stairs...he's actually assisting you down the stairs because you guys have been asked to leave, and you're having visual problems at that point?
A. Yeah.
Q. Right?
A. Yeah.
Q. And that's...that's what was occurring at that point, right?
A. Yes.
Q. So, it's not that he's assaulting you as you're going down the stairs, he's actually helping you out? He's making sure you don't fall down the stairs, right?
A. Yeah. I guess so. [Transcript April 25, 2016, page 58, line 32 to page 59, line 23]
Q. And I'm not going to say that's not understandable, but I'm going to suggest that what you're embarrassed about is, it's a situation where your group, your particular group, has been asked to leave?
A. Yeah. And it was just...um, embarrassing because he was, sort of, being, like, really controlling and saying pretty rude things right in front of everyone. Like, like, it was his business. I don't know. That's what was embarrassing was that I was being belittled in front of these people that I respect.
Q. But, you've also said at that point, you'd agreed with me, that he's actually helping you down the stairs at that stage?
A. Yeah. Like, it was good that he was of mind to get us out of there. That was okay. Just the name calling and the lack of...you know, he could have just listened. I would have come on my own or maybe not, I'm not sure. So...but either way, he was helping me get out and that's probably a good thing.
Q. And I think that's a fair comment you just made, by the way. That you just said, I would have come, or maybe not?
A. Yeah.
Q. You're thinking about that evening a little bit?
A. Yeah.
Q. Because one of the things you said earlier is that you said, you are asking to have another drink?
A. Yeah, I really wanted to have another drink.
Q. And then, you're...when my friend was asking you questions, you actually said this and I give you credit for saying this, you said, Morgan said no, and that was probably good. That was probably a good thing at that point...
A. Yes.
Q. ...right?
A. Yes.
Q. Because you were already having visual problems?
A. Yes.
Q. You were already under the...you had the affects of alcohol to an extent that you couldn't see properly?
A. Yes. [Transcript April 25, 2016, page 60 line 32 to page 62, line 7]
A. Yeah, and honestly, like I wasn't aware that we were asked to leave. Like, he might have been saying it, but I didn't register that. I didn't hear...
Q. But, that may be why, when you come out of the bathroom, he grabs you and escorts you down, right?
A. Oh, yeah, for sure, yeah. He wanted to get us home.
Q. Because that's one of the things he said as well is, let's not make a scene. Let's not...like, let's not embarrass ourselves, right?
A. Yeah.
Q. I'm going to suggest, Nicole, that it's a little bit hard to, kind of, put everything together in a timeline?
A. Yeah, for sure.
Q. Part of that is because of the alcohol?
A. Yeah.
Q. Part of that is because you were already sick?
A. Yeah, I think so.
Q. Part of that is because...I'll call it the dynamic of the relationships because this is your sister you're talking about and the individual that was your fiancé as well?
A. Yes.
Q. So, that makes it even...almost harder to recollect everything precisely? Would that be accurate?
A. Yes. And, also, I suffer from brain injuries. And the two blows to my head, like, my memory has already degraded since, like, I can...I struggle even more now. [Transcript April 25, 2016, page 69, line 9 to page 70, line 4]
Back at the Hotel Room
Q. He's at the door and he's saying, I have to make sure you're okay...or I have to know you're okay, right?
A. Right.
Q. And, in fact, when he gets into the bathroom, it's not a situation where you're thrown into the bathtub or anything like that? He's just holding, right?
A. Yeah. Well, at first, he wasn't holding me. He was just sitting there, sort of, sulking, looking sad. And I said, I'm sorry. And he said that he was sorry. And I said that I had phoned the police.
And he was upset and that's when he held on to me. But, I was upset because it seemed like he was trying to grab me and block the door while I was trying to protect myself from my sister getting in.
Like, I was upset because he could have held the door closed to make sure that I wasn't hurt anymore, that I was getting kicked in the door...like, by the door, and my back right where I was having my pain and he wasn't helping, so I was really scared because he got me up off the door and then she came right in, so I wasn't sure what was going on there.
Q. And...and it was confusing, I'm going to suggest, because just before you go to the bathroom, it was fairly close at that point, he had actually put his body over you to protect you, right?
A. Yeah. Yeah. I wasn't really sure what was going on there. Like, it wasn't completely malicious and cruel. It was just, sort of, overbearing and, at that point, you know, I'd had enough and I...I snapped a little bit, I think.
Q. And you've already indicated that, at times, during these altercations, you were grappling as well?
A. Yes. Yeah.
Q. I'm going to suggest that, as part of that grappling, you may have struck out a couple of times?
A. I don't know what that means.
Q. You...the pictures you saw of your hands, there's a lot of...there was a lot of redness on your knuckles?
A. Oh, yeah.
Q. I'm going to suggest that that may have happened by you striking out?
A. Yeah, that's...that's a possibility. I don't remember making a fist, though, like, I just...I don't really punch when I fight. I just....
Q. But, I...I guess what I'm saying is, it's possible, in this grappling...
A. Yeah. Like...
Q. ...the arms flying...
A. ...there was scratches and things like that, I remember. [Transcript April 25, 2016, page 67, line 13 to page 68, line 28]
[115] As the cross-examination continued into the next day, Nicole stated that some of the events that happened over two years ago were cloudy and some she was 100 percent clear on.
Q. I'm going to suggest that that timeline could be out of sequence to the...to the extent that, at the hotel room, the first physical act...interaction may have, in fact, been between you and Ashley?
A. No, completely no.
Q. How can you be so sure of that?
A. Because. I...no. My sister and I don't fight. We don't...we don't...we don't even talk if there's something that is upsetting us. We don't fight. We don't...there's no way that we would just start fighting right away like that. There is just no way.
Q. My impression of the way you've testified about the events is that, in what you've told the court, Ashley was the most aggressive person? Would you agree with that?
A. Um, yes. [Transcript April 26, 2016, page 8, lines 13 to 28]
Q. Well, you've indicated, in your original testimony, that you felt like he was being protective when Ashley was biting you?
A. Um, yeah, but he was also restricting me at that time. If there was no restriction going on, I don't know, I might have been able to defend myself just fine. [Transcript April 26, 2016, page 18, lines 17 to 23]
Q. And that when he gets in the bathroom, you said he doesn't advance on you, he sits down? And you said he's kind of sulking?
A. Yeah. He was crying.
Q. And you said, at that point, that both he and you apologized to each other for what's transpired, right?
A. Yeah.
Q. And that's an acknowledgement of fault on both sides, right?
A. Yeah.
Q. And I'm going to suggest that the reason the two of you are sitting there and apologizing to one another is because you both agree the situation got too far?
A. Yes.
Q. But, it wasn't something that was of a...of the nature of a physical attack? This was Nicole and Morgan and their relationship and you guys were apologizing for the bad things you had said to each other that day? Would you agree with that?
A. No.
Q. So, what were you apologizing for?
A. I was apologizing because I knew he was going to get arrested. [Transcript April 26, 2016, page 18, line 32 to page 19, line 23]
[116] Nicole agreed that Morgan never struck her during the altercations. She repeated that her complaints were that he was restraining her; she was being constricted and controlled.
Summary of the Cross-Examination by s. 486 Counsel Mr. Hotz for Ashley Vivian
Back at the Hotel Room
[117] Nicole repeated that the first thing she remembers is Morgan being in her face and holding her down against the wall.
[118] Ashley had pants on but no shirt at the time. At one point Ashley took all her clothes off and was naked.
[119] "I know that she didn't have any clothes on and she attacked me." (p. 48)
[120] Morgan was holding her down on the bed by kneeling on her body and then Ashley bit her twice and hammer fisted on her head twice.
[121] Nicole repeated that she got free and then locked herself in the bathroom.
Analysis - W.D. Test
[122] In assessing the reliability and credibility of the all the evidence heard, I have applied the three-pronged test set out in the case of R. v. W.(D.), 63 C.C.C. (3d) 397 (S.C.C.) – which places the burden of proof on the Crown when resolving any issues of credibility that relate to the essential elements of the offence.
[123] I accept as accurate, reliable and true the evidence of Nicole Vivian that her sister Ashley was in an uncontrolled state of violent rage when they all returned back to the hotel room after the wedding reception.
[124] This evidence is corroborated fully by the testimony of the four of seven police officers who dealt with Ashley after police kicked the hotel room door in.
[125] Ashley's behaviour was described as being "wild" due to her advanced state of intoxication. She was hostile and aggressive with the police such that she had to be not only handcuffed but also put in leg restraints.
[126] Ashley's physically aggressive behaviour continued for a prolonged amount of time and involved also the paramedics who also used restraints to transport her to hospital on a stretcher.
[127] Ashley's "wild" behaviour continued at the hospital where she was verbally aggressive with staff and members of the public such that she had to be put in a seclusion room.
[128] There is absolutely no doubt that Ashley is guilty of count three, which is assault resist arrest by being combative with Constable Wozny, a peace officer who was engaged in the lawful execution of her duty. Accordingly, a finding of guilt is registered on this count.
[129] I accept as accurate, reliable and true that Nicole was bitten on both cheeks and hammer-style punched twice in the forehead by Ashley as she was restrained on the bed by Mr. Roberts. Nicole's version of these events was corroborated by the observations of the responding officers and the medical records filed.
[130] Accordingly, I am satisfied beyond a reasonable doubt of Ashley's guilt on count number one, an assault on Nicole Vivian.
[131] I accept as accurate, reliable and true the evidence of Nicole that Ashley was able to carry out this physical attack on her person because Mr. Morgan was restraining her against her will on the bed at the time. This act alone makes out an assault and I am therefore satisfied beyond a reasonable doubt that Mr. Roberts is guilty of assaulting Nicole and a finding of guilt is registered against him on count number one.
[132] Count number two involves another count of assault on Nicole by Mr. Roberts. This separate charge was laid with respect to what occurred at the wedding reception. On this count I am left in some reasonable doubt about the events at the wedding reception given Nicole's answers to many of Mr. Neil's questions in cross-examination. Some examples include the following:
Nicole had consumed more alcohol than she usually does; her vision was affected and she was "blacking out and stuff"; she also was physically sick with fever and pain;
Nicole agreed with the defence suggestion that she was unaware that they had been asked to leave the reception when Morgan was trying to get her out of there when she exited the bathroom;
Nicole agreed that it was a good idea by Mr. Morgan that he did not let her get another drink at that time;
Nicole agreed with the defence suggestion that Morgan was trying to assist her down the stairs to get her out of the reception when he physically helped her down the stairs;
Nicole agreed with the defence suggestion that she was having trouble recalling the events due to the consumption of alcohol and the fact that she was sick;
Nicole added that her memory of the events is also affected by how long it has been since the events occurred and the fact that she has suffered a brain injury.
[133] Nicole maintained throughout that Mr. Morgan was verbally abusive to her at the reception and that this embarrassed and upset her in front of people she respected. I accept that evidence, but that on its own does not make out the offence of physical assault. Accordingly, I am not satisfied of Mr. Morgan's guilt of assault at the reception, and a finding of not guilty is registered on count number two.
Final Decision
[134] Morgan Roberts and Ashley Vivian are guilty of count number one; Morgan Roberts is not guilty of count number two; Ashley Vivian is guilty of count number three.
Released: August 29, 2016
Signed: "Justice Lesley M. Baldwin"