WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Michael Cimino
Before: Justice P.N. Bourque
Counsel:
- A. Barkin, for the Crown
- N. Giuffre, for the defendant Michael Cimino
Reasons for Judgment
Released on February 14, 2017
The Facts
J.R.
1The defendant is charged with a variety of offences from an interaction with J.R. on October 20, 2015 and November 10, 2015.
2J.R. is 21 years old. She works as a waitress and lives at her parent's home. She states that she met the defendant when she was working at a bar and the defendant worked at a different bar. They began to date. They became boyfriend and girlfriend.
3She stated that during the time of her relationship with the defendant, she drank quite a lot but he did not drink nearly as much. She did not say if this was a problem in their relationship, but I think the events of October 20, 2015 may indeed have been partly due to her considerable alcohol consumption.
4She stated that on October 20, 2015, she had been drinking continuously since about 1:00 p.m. She stated that he came to pick her up at a restaurant where she had been drinking with some friends and by her own recollection had had some 5 to 6 mixed drinks that day.
5She stated that the defendant was usually kind and considerate with her and that he was the same way with others. She said that he was funny.
6On this day, the defendant picked her up and they went to another restaurant to get some chicken. She wanted to do take out and go to his house but he wanted to eat in the restaurant. For some reason, she did not like this. She stated that the defendant was becoming "serious" and at one point, he intentionally threw water on her face. She said that she went to the washroom but did not go in but went out the back door.
7I note that later in her testimony she stated that while sitting at the restaurant a man came up and began to argue with the defendant. She was not quite sure about that.
8In any event, she decided to go to a nearby jewelry store, as she did not want to be with the defendant. She went in and began to peruse the jewelry. She is very, very hazy about any details about what happened in the store. She stated that she asked the woman in the store to call a cab for her. She also stated that she wanted to buy a belly ring. She does not recall buying anything. She recalls the defendant coming into the store and that they left together. She does not recall being pushed out of the store. She does not recall anything being in the store by the defendant. She states that he may have grabbed her arm and put her into the car which was parked outside, but she does not really remember as she could have gotten into the car herself.
9She stated that she thought she was a bit intoxicated but then said that she was intoxicated.
10She related that after they got into the car and were driving away, she was trying to get out of the moving car but he was holding her and would not let her out. For some reason he thought she had called the police and was angry with her.
11She stated that he drove the car to a Mac's milk and parked and then they began to walk to his house. She stated that she was trying to get away from him but he was pulling her arm and her hair. Two police cars drove up and the defendant was arrested. She went to the station and gave a statement but she said she was drunk when she gave that statement so she went the next day and gave another statement.
12She stated that sometime later, they contacted each other on What's App (an internet phone video protocol) but she didn't know who initiated the contact.
13She stated that she did not know how many times they were in contact in that way.
14The Crown then asked about the events of November 10, 2015. She at first stated she could not remember anything. The Crown prompted her further and reminded her of her statements to the police on November 10, 2015. She then remembered that they were together in his car at a plaza late and no cars were around. She wanted to get away and was yelling and screaming and she got out of the car and he pulled her back into the back seat. (She stated that she had been drinking that day as well). She stated that she was kicking him and kicking his car. She stated that he was trying to calm her down. She was yelling and he was not.
15She began to scratch him and pictures were filed taken by the police that night showing the many scratches to his face and neck.
16She then states that they drove to the Kleinberg motel (She did not say why they drove to the Kleinberg motel). He told her to go and get a room. She went to the front desk. The defendant came in. The desk clerk could see the scratches on the defendant's face. She stated that she asked the clerk to call a taxi. She was becoming very upset. She stated that the clerk went behind the wall to "talk to his wife". She stated that she tried to grab the phone behind the desk to call 911 but she was so upset she called 991. She stated that the desk clerk eventually called a taxi and walked her out to the cab. She got in the cab and asked to be driven to the police station.
17In response to specific questioning by the Crown, she said that the defendant and her had been talking again but she could not give information as to the last time they spoke.
18On the second day of her examination in-chief, when prompted by the Crown to provide further detail about the actions in the car with the defendant on November 10, 2015, she stated that the defendant stated he wished to have one last sexual encounter with her and he kissed her and kissed her naked breasts. She gave little or no detail about this encounter.
19Again on the second day of her examination in-chief, the Crown asked her about further contact with the defendant since November 10, 2015. She stated that she received many, many texts and e-mails from the defendant. She stated that he was trying to make her feel bad about her allegations and what they were doing to him and his family. She also stated that she felt threatened by some of them. The witness was shown several e-mails and texts. The e-mails were from his e-mail address. They did not contain any explicit or inferred threats. There were other text messages from a phone number that the witness could not identify. They had some threats.
20Whatever those documents contain, I find that the witness attended court and gave her evidence. She did not appear deterred. She did not appear to show any sympathy for the defendant and while I will speak of the credibility of what she said, I cannot say that she was tailoring her evidence to support him. Her lapses of memory were not, in my opinion, the result of any fear from him but from other issues which I will discuss below. It may be that she felt a threat and it is up to the police whether there are grounds to charge him with further offences. For the purpose of this trial, I find they have little probative value to the issues I must decide here.
21In cross-examination, the witness was probed as to how the water was thrown in her face by the defendant, whether from a glass, or a bottle or how much and to what effect. Other than saying that the defendant was responsible, the witness could not give any detail. She did say that she thought the water was only on her face.
22In her examination in-chief, the witness said that she did not go to the washroom before leaving the restaurant. In cross-examination, she said that she could not be sure.
23With regard to other actions of the defendant, the witness was asked about being fearful of the defendant. She said that it was when he picked her up and did not seem happy to meet her friends. Notwithstanding that stated fear, it was her evidence that she did not wish to stay in the Memphis restaurant and eat but wanted to go to his house. That seems irreconcilable.
24With regard to the events on November 10, 2015, the defence counsel attempted to go through it in detail. I say "attempted" as the witness would often respond with "I don't remember" and "I don't know" to many of the obvious suggestions. For example, the witness stated that she met the defendant at the top of the street where she lived and was not fearful of him. Later in her testimony, she began to say the she was nervous and fearful. She gave no explanation of why she was fearful. She had arranged to meet him (although she could not remember the details) and willingly left her home and went into his car.
25There were other detail issues and contradictions but a large one concerns the actions in the car. She says that at some point she is laying on the passenger seat which has been laid back. She agrees that the mechanism is on the right side of the seat and he was in the driver side. She responded to that by saying he came out of the car and went around to her side. By this point, she states she is fearful. She makes no attempt to keep him out of the car.
26It gets more complicated when she attempts to describe how they ended up in the back seat. She says that after she leaves the front seat and runs screaming from the car, he comes up and takes her back and puts her in the back seat. She is behind the driver. She has already testified as to how he is to her left. When confronted by defence counsel as to how he could do this with the front seat down, she says that he was sitting in a little space. She could not describe how he crawled over her to get into that small space.
27In cross-examination, there were some further issues raised about the witnesses general credibility:
(a) the witness could not remember when she had become pregnant and miscarried during this relationship with the defendant;
(b) the witness omitted in her evidence of the events of October 20, 2015 to say that she and the defendant went to another sports bar that day, when in fact they had done so, and she consumed further alcohol at that location;
(c) the witness sparred with defence counsel over her degree of intoxication. The witness said she was a "little intoxicated" but in other parts of her testimony, she admitted she was "intoxicated";
(d) the witness, when defence counsel reviewed with her the water throwing incident, added the comment that if it was not water that he threw on her then he spat on her. This is something quite different and the witness should not be in any confusion if indeed there was water thrown at her by the defendant. In re-examination by the Crown, the witness still was not sure, but she was "standing by" her original statement that it was water;
(e) the witness contradicted herself several times about the relationship, first saying it was over before November 10th and then it was still on;
(f) the witness's reasons for getting into the defendant's car on November 10, that she wanted to tell him in person that she didn't want him to contact her does not ring true. It contradicts her statement that she was afraid of him;
(g) the witness insisted that when she went up to the clerk at the Kleinberg Inn, she wanted him to call her a taxi but this is contradicted by the clerk who said that she initially wanted a room but changed her mind later when he inquired about the scratches on the defendant's face.
28On the issue of the splashing of water into her face, I find in cross-examination she said it could have been a spit in her face. I find this impossible to accept. They are not the same thing at all. I find that this admission, in addition with the other issues that I have raised above, has a serious and negative impact upon her credibility.
M.S.
29M.S. was working in a jewelry store with his cousin T.S., at about 6:00 p.m. on October 20, 2015. He said a woman came in the store and she seemed frightened. He said she asked to use the washroom, but did not use the washroom. After several minutes, a man (whom he identified in dock as the defendant) came in and said to him "better sit your ass down or I will beat your ass". The defendant and the woman spoke and he did not hear what they said. The witness went to speak to his manager on the telephone and then he returned and the defendant and the woman had left.
30In cross-examination, he admitted that he was not in fear from what the defendant had said to him but took it as an admonition to mind his own business. There was a low wall between the defendant and the witness and the witness did not think that the defendant would "jump over the wall" to get him.
T.S.
31She was working with her cousin Mathew at the jewelry store. She was in the front on her computer. A woman with long hair and eye make-up came in the store and she was not looking at anything but looked to the door several times. The witness asked her if she could help and the woman said "no". She then said that she was looking for a belly ring. A man came in the door and they were arguing. The man (more in-dock identification) said "Where have you been?" and they began to argue. The man told her to leave the store but she said she was looking for a belly ring. She also asked the witness to call a taxi which the witness started to do. The man said to her "You don't need a fucking taxi". The woman then did not seem to want a taxi.
32The woman said to the defendant "Why are you here? Leave me alone". She began to raise her voice as his was raised.
33At one point her cousin, Mathew, who was sitting in the back behind a 5 foot wall stood up and said "What is going on?", to which the defendant told him to sit back down and said words to the effect "Before I beat you". The witness told Mathew to sit down and he did.
34The woman bought her belly ring and as they went out the door, the defendant pushed her as she was opening the door.
35After a moment, they heard yelling from outside and the witness went outside and saw the defendant arguing with another man. The witness went up to the woman who was in the car who was crying and asked if she was okay. The woman said she was okay and did not want to come inside with the witness.
36She stated that neither the woman nor the defendant seemed to be under the effects of alcohol and she did not see any water on the woman's head.
37The witness called the police, after getting the licence plate number.
38I note that there are many differences between the evidence of the two employees of the jewelry store. They may simply have heard different things, but there may be some memory issues here as well. T.S. did not say anything about her wanting to go to the bathroom. Mathew did not speak of any other aspects of the conversation between the defendant and the woman. He did not testify at all about anything happening outside. He stated that he called the manager on the phone while T.S. said that the manager was in the back of the building.
J.L.
39The witness is at the night desk of the Kleinberg Inn. He gave his evidence through an interpreter and it is clear that his English is not very good. He says that a man and woman came up to him and wanted a room. He stated that he took the man's licence and the man had scratches on his face and the man said that "a cat clawed his face".
40He then stated that the man and woman started to argue and eventually the woman did not want a room but wanted to leave. She said that "someone" had scratched his face.
41The woman eventually asked him to call a cab and he did. He walked her out to the cab as she stated that the man was still there. He interpreted this as a statement that she was fearful of him.
The Defence
Michael Cimino
42The defendant testified. He stated that he met the complainant in June 2014 and they became close within two or three weeks. He said that she became pregnant shortly thereafter. He stated that after that, she had a miscarriage and that caused a strain.
43He spoke of further strains which he says was as a result largely of her alcohol and drug abuse and the fact that she was seeing another man who was giving her money (the witness called him a sugar daddy).
44He stated that on October 20, 2015, they were to meet at a restaurant that he was at. She called him and he went and picked her up at another restaurant where she had been drinking with friends. He took her back to the restaurant that they arranged to meet at. He was not happy with the aforesaid issues and he wanted to talk about them. She had at least two drinks at this restaurant and they went to another place called Memphis. They ordered food and sat down. He was trying to talk to her about these issues and she did not want to. She was under the influence of alcohol. He stated that she said she was going to the washroom. After 5 minutes, she had not returned and he went to look for her.
45He went to several places and even got into his car to look but he eventually saw her in the Planet Jewel store and he went in. She was talking to a woman employee in the store. He says he was upset and told her to come with him. He says he was loud and a person from the store stood up and he told him to "get the fuck down and mind his own business". She would not come and he waited for her to buy her belly ring. He stated that he left with her and held her arm because she was unsteady. He said she was unsteady, he had to help her into the car. He says that he was being loud and a person came up and admonished him. He got into an argument. He saw the woman from the store come up and J.R. told her she wished to go with the defendant.
46He got into the car and began to drive and as he was driving, she began to open her door as the car was being driven. He reached over to keep the door closed and held her in. He yelled at her. He believed she was very drunk. His mother called him as he was driving and said the police were at his door. He accused J.R. of calling the police and she denied it. He was concerned about driving up to his house with the police there as he had some alcohol that day so he parked a short distance from his house and he and defendant sometimes hand in hand walked to his house, and was arrested en route.
47After his arrest, he was released on conditions that he have no contact with J.R.
48He stated that he sent her a couple of messages and then had her friend M. call him. He hung up. A call came through again and he spoke to J.R. and she told him that she may be pregnant. They got together and went to the Kleinberg Inn on more than one occasion.
49On the day of the 10th of November, he stated that he was becoming concerned that he would be caught breaching his release and his family would suffer as his sister was a surety. They arranged to meet and he picked her up at the end of the street. They went and parked at a plaza nearby to talk and he said they had parked there many times before.
50He said that he was concerned about the matter and he felt they should not keep seeing each other. He hit the dashboard and steering wheel of his car. He said that she became upset and slapped him and scratched him. After a time, she calmed down and they agreed to go to the Kleinberg Inn. He told her they could spend one more night together.
51They drove there and she went in to get a room (as she always did). He came in and the desk clerk was looking at him in a funny way. He said that the cuts on his face were opening. J.R. then said she wanted a taxi or to call the cops. He said "What the fuck is wrong with you?". They argued and he said she would get in trouble for what she did to his face. They yelled at each other. She went to the taxi and he went to his car.
52He drove around and he got a call from his mother who said the police had contacted her and were looking for him. He drove to the police station.
53In his evidence in-chief, he became emotional at times as he spoke of his family. He made reference to the fact that she had some secret from her family that he had promised not to reveal to them. It was his opinion that she was afraid that he would tell them.
54In cross-examination, I find that the defendant was not significantly shaken in his testimony about these events. I do find however that he lied on several occasions when he was interviewed by the police on November 11, 2015. His credibility generally suffers as a result.
Analysis
55The Crown bears the burden at all times of proving the charges beyond a reasonable doubt. As stated in R. v. Lifchus:
The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence:
Reasonable doubt is not a doubt based upon sympathy or prejudice:
Rather, it is based upon reason and common sense;
It is logically connected to the evidence or absence of evidence;
It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
More is required than proof that the accused is probably guilty - a (Judge) jury which concludes only that the accused is probably guilty must acquit.
56The defendant has testified and provided an explanation for events, which, if believed, would furnish him with a defence to the remaining charges. As stated in R. v. W.D.:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in 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.
Count 4 - Breach of a Peace Bond Recognizance – October 20, 2015
57The Crown presented no evidence of that peace bond. The charge will be dismissed.
Count 10 - Breach of Court Order of September 25, 2014 - November 10, 2015
58The Crown did not lead any evidence of this court order. The charge will be dismissed.
Events of October 20, 2015
59The events of October 20, 2015 have led to further 3 charges against the defendant. Counts 1 and 2 involve allegations involving J.R. Count 3 involves an allegation of threats against M.S.
60With regard to the threat allegation, the witness M.S. testified that he was sitting in the store and a woman came in looking for the bathroom. (Neither the witness T.S. nor the witness J.R. testified that this request was ever made). He stated that a man came in and said "Better sit your ass down or I will beat your ass". He sat down and gave a description of further events which had some similarities to the evidence of T.S. but was much different in detail. The complainant admitted in cross-examination that he was not in fear from the remarks of the defendant and indeed there was a low wall between himself and the defendant. The defendant did not pay him any further attention. In his evidence, the defendant denied using the words "I will beat your ass" but admitted that he told him to sit down and his intention was to leave him and J.R. alone.
61As stated in R. v. Carons, the Crown is only required to prove that the accused uttered the threat by one of the means specified. It is immaterial whether the victim appreciated he was being threatened. However, the words must be viewed objectively in the context in which they are spoken. In this case, the defendant did not want the witness to interfere in his argument with J.R. Even if I accept the words as stated by M.S., the defendant began with an admonition to sit down. The rest of the words were in furtherance of that and in any event, the words "beat your ass", have very wide interpretations. In any event, while I am sure the defendant spoke in a loud and hurried fashion, I am not satisfied beyond a reasonable doubt that those specific words were spoken nor were they designed to convey a threat of bodily harm.
Count 3 - Threaten to cause death to M.S. - October 20, 2015
62As per the reasons above, the charge is dismissed.
63With regard to the other charges, I have considered the evidence of the defendant. His persistent lying to the police in the interview of November 11, 2015 gives me pause. I feel that I cannot just accept all of his evidence of the interactions between himself and the complainant. While some of his explanations have a ring of truth (the time when she was in the car and wanted to get out while it is in motion), some of the others seem farfetched, (the argument inside and outside Planet Silver with the complainant, M.S. and the unnamed man on the street).
64With regard to the events in the car on November 10th, 2015, they could leave me with a reasonable doubt, but I must still assess in detail, the evidence of the complainant.
65For the contradictions in the complainant's evidence about the "water", or "spittle", I find I cannot find that the defendant assaulted the complainant by throwing water upon her. I find that she was clearly inebriated and left the restaurant. I find he went to look for her in Planet Silver and by chance found her there. He was somewhat upset that she had simply "wandered off". He wanted her to come with him. He did not however make efforts other than by argument to get her to leave the store. She said she wanted to stay and make a purchase and he was upset but did not physically stop her from doing so.
66On the way out of the store, I am not convinced that he pushed her through the door. The complainant does not even confirm that. However, and while I am prepared to find that she was clearly inebriated (which could explain a lot of the observations of the S.'s) I do find that he held her arm and pushed her into the car. Even if she needed some assistance, I find that this constituted an assault and it was not asked for. I am reinforced in this belief because of the fact that they drew upon themselves attention from passersby to such an extent that someone sought to intervene and entered into an argument with the defendant.
Count 2 - Assault upon J.R. - October 20, 2015
67I find that the defendant applied force to the complainant without her consent and it was more than trifling in nature, and I find him guilty of an assault.
Count 1 - October 20, 2015
68With regard to the unlawful confinement, I find that the evidence of T.S. and indeed the complainant's own evidence, would leave me in doubt on this issue. The complainant did not want to leave the car at that stage.
69The Crown argues that when she opened the door as they were driving, that she was then confined when the defendant kept her from stepping out of a moving car. I do not find that. Clearly she was being quite irrational, and the defendant probably had a duty to keep her in the car and close the door. As to whether he should have immediately stopped and let her out, I do not find that she ever made that request. I believe that her opening of the door was interpreted by him as an irrational and impulsive act, and objectively it was.
70I find the defendant not guilty of the charge of unlawful confinement from October 20, 2015.
Events of November 10, 2015
71With regard to the events of November 10, 2015, both defendant and complainant are in agreement that they met that evening and drove to a parking lot at a local mall. They had met and communicated many times before and the defendant was clearly in breach of his bail conditions.
72Both describe a conversation which turned into an argument. Both then describe a drive to a motel (where they had gone on other occasions) and then her leaving in a taxi cab and going to the police. The complainant alleges more than one assault, an unlawful confinement and a sexual assault.
73With regard to the incidents in the hotel, I would accept largely the statement of the hotel clerk. It was his evidence that any arguing between the complainant and the defendant happened after he pointed out the scratches on the defendant's face. I would have to take from that that the complainant could have been there willingly up to that point. It also raises a doubt about her version of the events in the car. She alleges a forcible putting of her in the car and then a "kissing and groping" style of sexual assault. It is just as consistent with all that transpired that she became irrational, scratched him severely and he responded by holding her arms. While an assault and abduction are possible, I cannot say, based on all of the evidence, that I am satisfied beyond a reasonable doubt. The fact she went into the hotel lobby alone gives me further doubt. She need not have gone into the hotel at all once out of the car and the defendant leaving to park.
74It's not necessary that she try to get away, but coupled with all the other evidence, it does leave me with doubt.
75Therefore, he will be found not guilty of sexual assault (count 6), assault (counts 7, 8), and unlawful confinement (count 10).
76At the opening of this trial, he pled guilty to a breach of recognizance from November 10, 2015.
Conclusion
77The defendant shall be found guilty of assault for October 20, 2015; breach of recognizance from November 10, 2015. He will be found not guilty to all other charges.
Signed: "Justice P.N. Bourque"
Released: February 14, 2017