Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2022 12 16 COURT FILE No.: Pembroke 20-1405
BETWEEN:
HIS MAJESTY THE KING
— AND —
TROY RIOPELLE
Before: Justice J.R. Richardson Heard on: September 6, 2022 Reasons for Judgment released on: December 16, 2022
Counsel: Conor Kyte, counsel for the Crown Kathleen Kealey, counsel for the defendant
Introduction
1Troy Riopelle is charged with Assault Cause Bodily Harm against Terry Bandy on October 20, 2020. Mr. Riopelle is Mr. Bandy’s nephew. Mr. Bandy says that it was an unprovoked attack in which he lost two teeth. Mr. Riopelle says that he acted in self defence.
2This case involves the assessment of credibility and reliability and the application of the W.(D.) formulation.
Terry Bandy
3Terry Bandy is presently 69 years of age. He would have been approximately 67 on October 20, 2020. He has lived in the Village of White Lake all his life. He has four children. There is also a lot of his extended family in the area.
4The Glenalee Mobile Home Park is near Mr. Bandy’s residence. At one time, the Park was owned by Mr. Bandy’s father. The father apparently transferred the Park to Mr. Bandy’s two sisters, one of whom is the mother of Mr. Riopelle. In doing so, he essentially disinherited Mr. Bandy. Mr. Bandy worked there for a number of years. He sued. He did not feel that his contributions to the Park were compensated. He stated, “It was hard to take, especially from your own father.”
5He lost that lawsuit. Despite this, Mr. Bandy said that he was not bitter. “I’m better off; I’ve learned a lot,” he said.
6Mr. Bandy continues to do work for some (approximately 12) of the permanent residents at the Park. They lease their land from Mr. Bandy’s sisters and accordingly, they can decide who comes and goes from it. Mr. Bandy mows their grass, does other landscaping and sometimes does carpentry work.
7The Park also has a seasonal area where there are more transient campers. Mr. Bandy’s sisters wrote him a letter banning him from that part of the Park. Mr. Bandy indicates that he has respected that letter.
8On the date in question, Mr. Bandy was over at Glenalee cutting grass for one of the permanent residents, Delores Anderson. Mr. Bandy said that it was just a normal day.
9He went to reverse the garden tractor he was using when he heard someone say, “Get off my grass”. He turned around and Mr. Riopelle punched him. Mr. Bandy said that the punch came “out of the blue” and he was “caught totally off guard.” Mr. Bandy said that Mr. Riopelle hit him with such force that he fell off the tractor. He denied that he purposely dived off the tractor.
10With respect to the tractor, Mr. Bandy indicated that the tractor has hydrostatic drive. It stops as soon as the operator removes his foot from the peddle.
11One of the other residents, a Mrs. Jones, came running with some paper towels and cleaned him up. He went to Mrs. Jones’ trailer and he saw Ms Mallay who told him that she saw the whole thing.
12An ambulance was called and Mr. Bandy went to the hospital. Exhibit 2A is a photo of Mr. Bandy sitting at the back of the ambulance. Exhibit 2B is a close up. Blood is visible on Mr. Bandy’s chin. Exhibit 2C is a photo of Mr. Bandy’s mouth. Two teeth are clearly missing. He also has a fat lip. Although the photos do not show any bruises on Mr. Bandy’s face, he testified that bruises showed up the next day.
13He had to have three or four stitches. The teeth were his real teeth. Afterward, he went to the dentist who removed the stitches. He was fitted with a partial plate of false teeth. Mr. Bandy paid $626 for the dentist (Exhibit 3). Exhibit 4 is an estimate for the treatment cost of implants. If he has implants to replace his teeth, Mr. Bandy will have to pay an oral surgeon $8250. The teeth themselves will cost $5132 (Exhibit 5). Mr. Bandy does not have insurance.
14I pause here to note that I have no difficulty finding that the injuries suffered by Mr. Bandy constitute “bodily harm”. The question is whether Mr. Riopelle assaulted him or whether Mr. Bandy suffered these injuries when Mr. Riopelle was defending himself from an attack by Mr. Bandy.
15There is a road that meanders through the Park. The road also leads to the residence of Mr. Riopelle’s mother. Mr. Bandy stated that his vehicle was parked at the side of the road. Part of the vehicle was on the grass (about a foot) and part of it was on the road. He denied that his vehicle was obstructing the road. He denied that Mr. Riopelle asked him to move the vehicle.
16Mr. Bandy denied that he lunged at Mr. Riopelle. He also denied that there was a previous incident in 2005 when he lunged at Mr. Riopelle and Mr. Riopelle repelled him.
17Mr. Bandy indicated that he was wearing small in-ear hearing protection when he was operating the motor. He heard someone shouting, “Get off my grass”. He did not recognize the voice at first. He then turned around and saw Mr. Riopelle. This evidence was slightly different from what Mr. Bandy told the Police in his statement. He agreed that he told the Police, “I turned around. Troy was there. He said, “Keep off my grass.”
18Mr. Bandy denied that he stopped the lawn tractor to engage with Mr. Riopelle. He said that he did not have a chance to say anything to Mr. Riopelle in return.
19He denied making a “physically aggressive gesture” toward Mr. Riopelle.
20With respect to the dispute between him and Mr. Riopelle’s mother, Mr. Bandy admitted that he told the Police in his statement that he believed that the motive for Mr. Riopelle’s attack was hard feelings over the family dispute. In his evidence in court he said, “It’s been twenty years and they’ve got to get over it. I’m going ahead with my business.”
21He denied that he had been told that he was harassing residents at the Park. He denied soliciting work from the residents at the Park. He said that the source of his work is “word of mouth”. He said that some of his customers are friends and he is a frequent guest in their trailers for supper.
22He agreed that he told the Police that prior to the assault, he had seen Mr. Riopelle, a person named “Kyle” and another person named “Kip” standing at the garage before the incident. He said that was normal.
23Mr. Bandy did not volunteer the information about what I characterize as the family feud in-chief.
Kayla Mallay
24Kayla Mallay testified. She is 81 years old. On October 12, 2020, she was visiting her friend at her friend’s cottage in White Lake. She had visited her friend there before. She had met Mr. Bandy before.
25She remembered that the weather was lovely.
26She was sitting in the living room looking out the window at the lake. She saw Mr. Bandy mowing the lawn. He was on a ride-on mower. He was wearing ear protection.
27She saw a small black SUV pull up. She saw a young man get out and walk toward Mr. Bandy. She saw the young man hit Mr. Bandy. She remembers seeing Terry “lying on the floor.” She thought the mower might have fallen over as well. She thought the mower was still running. She said that Mr. Bandy did not stop the mower and speak to the man before the man hit him. “He never saw him coming. He didn’t know what hit him”, she opined. In cross-examination she said that Mr. Bandy “flew” off the tractor after he was struck. She denied that Mr. Bandy later told her that he did not see the man who hit him approach. Later in cross-examination, she said that she didn’t know what the mower did after the man struck Mr. Bandy. “I was watching Terry, not the mower” she said. She opined that if the mower stopped Mr. Bandy would have had to make it stop.
28She said that the man came up to Terry’s right and hit him with a closed fist. The man used his right hand. She said, “I could hear the whack in the house”. She said that after the man struck Mr. Bandy, he turned around and left.
29She could not estimate how far she was from Mr. Bandy and the man when she saw what happened. “I’m not good with that” she said. She agreed that she was looking out through a window. There was a porch that she was looking through. She denied that her view was blocked and she did not see what happened.
30She denied discussing what happened with Mr. Bandy. She admitted that Mr. Bandy came to the door before the police came to get something to wipe the blood. She recalled seeing blood all over his face. She said that she did not speak with him because she was too frightened. She stated that her friend (Mrs. Jones) called the Police. She could not remember how long it took them to arrive, but she thought it was less than twenty or thirty minutes. She denied telling the Police that Mr. Bandy told her that he knew who the person who hit him was.
31In cross-examination, she agreed that she told the Police she could not describe the man that hit Mr. Bandy. She agreed that she told the Police it happened so fast, and that the man wacked him and ran.
[32] In cross-examination, Defence established the following inconsistencies: a) In court, Ms Mallay denied that she was playing on her iPad when the incident took place. In her statement to the Police she stated that she was playing on her iPad. When she was confronted with what she told the Police, she said, “I guess I was but I was watching Terry.” b) In court, she did not remember telling the Police that the man who hit Mr. Bandy was wearing a cap. c) In court, she indicated that the man who hit Mr. Bandy pulled up in a black SUV. When she spoke with the Police she told the Police that she could not see a vehicle from her vantage point. Shen she was confronted with this she stated, “No, I saw a vehicle. A big black vehicle.” d) In court, she indicated that she did not have any interactions with Mr. Bandy when he came to the door after the assault. In her statement to the Police she stated, “Terry came in here but he was bleeding from his mouth. There was a lot of blood.” The police officer asked, “He actually lost teeth?” Ms Mallay replied, “That's what he said.” The police officer asked, “Do you recognise the male?” Ms Mallay stated, “No. I am only a visitor. He knew who it was." When this was put to her, Ms Mallay stated, “I guess I did” [have interaction with Mr. Bandy]. “I don’t remember. I think my friend Jan told me that he lost teeth. I was very frightened and I am very frightened today.”
33A lot of time was spent with a diagram of the Park. This was ultimately virtually pointless. The diagram was originally drawn by the accused and it is clear that Ms Mallay was confused by some of the landmarks on it.
34I noticed that a friend who had accompanied Ms Mallay to court was nodding her head in Ms Mallay’s direction when some questions were being asked. I stopped the proceedings and cautioned the friend about coaching Ms Mallay before continuing with her evidence.
Troy Riopelle
35Mr. Riopelle is 42 years old. He was 40 when the incident took place. He does not have a criminal record. He runs his own carpentry business in Arnprior.
36He was at the Park the summer of 2020 helping his father and his brother shingle a roof. He does not remember whose roof he was shingling. He stated that the weekend in question was the last weekend that the Park was open.
37He stated that he did not see Mr. Bandy until he was going to his parents’ house. Mr. Bandy was parked in the middle of the road and he couldn't get by. He saw that Mr. Bandy’s tires were on the grass. “It's my mother's lawn and he was wrecking it. He's been told multiple times”, he said.
38He recalled that Mr. Bandy’s back was to him. Mr. Bandy then saw him, drove up to him and stopped. “He tried to grab my arm and I hit him. He dove head first in the ground. I left. I got out of there. I didn't want him touching me. He's touched me before. I don't want the guy touching me. I didn't swing that hard. It was more of a reaction. I didn't cut my hand.”
39When asked about the previous touching, Mr. Riopelle stated, “When he lived in the Park, me and my younger brother were driving by and he gave me the finger. I stopped him and asked him if we had something to say. He grabbed me”.
40In cross-examination, Mr. Riopelle agreed that he could have gone up another street if he turned back around when he encountered Mr. Bandy’s truck. He could have avoided the situation.
41When asked about contact with Mr. Bandy, Mr. Riopelle stated, “He tries to wave to me. He's being smart and smug. I try to avoid him. Not this time. I wanted to ask him politely.” He added, “The guy's crazy. He sued my grandfather. My grandfather is afraid of him. I didn't know what he was going to do.” Later he stated that Mr. Bandy “goes around talking like he is a tough guy.”
42Mr. Riopelle admitted that he didn’t know how hard he hit Mr. Bandy. He stated, “Honestly, I didn’t think I hit him that hard.” Later he stated, “I didn’t want to hit him. It was a reaction.”
43When asked why he left immediately, Mr. Riopelle stated, “I just got out of there. I didn't know what he was doing. He forced me into a corner.”
Constable Andrechuk
44Constable Andrechuk was called by defence. He has been a police officer with the Ontario Provincial Police for five years. He was dispatched to this call and became the officer in charge of the case. He spoke with Ms Mallay that day at the scene. He interviewed Mr. Bandy at his residence the next day. He arrested Mr. Riopelle the day of the incident. He described Mr. Riopelle as polite and cooperative. He stated that he did not observe any injuries to Mr. Riopelle.
Assessment
45The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.
[46] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada instructed triers of fact to assess evidence in this way: a) First, if you believe the evidence of the accused, obviously you must acquit. b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
47In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe R. v. Esquivel-Benitez, 2020 ONCA 160. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected R. v. J.J.R.D., 2006 ONCA 40088, at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. No. 69.
48Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed. A credible witness may give unreliable evidence. R. v. Morrissey, 1995 ONCA 3498, at para. 33. R. v. H.C., 2009 ONCA 361, at para. 26. The credibility and reliability of a witness must be “tested in light of all the other evidence presented.” R. v. J.J.R.D., 2006 ONCA 40088, at para. 46.
49In assessing each witness’s account of what happened, I have considered the internal consistency of the account, its consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings.
50To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, the mental capability and limitations and their level of sophistication.
51Some inconsistencies are important; other less so. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern. R. v. Stewart, 1994 ONCA 7208, at para. 27.
52I do not believe Mr. Riopelle. His evidence is paradoxical and contrary to reason and common sense. He wants to confront Mr. Bandy about Mr. Bandy’s car being parked on his mother’s grass but he claims that he tries to avoid Mr. Bandy and he did not intend to hit him. He says that Mr. Bandy has tried to hit him before and he doesn’t want him touch him but he decides to confront him. He says that Mr. Bandy is smug and talks like a tough guy but there is no evidence of that on the day in question. If anything, the evidence suggests that Mr. Bandy was minding his own business operating his lawn tractor. He admits that he confronted Mr. Bandy in the past and asked him “if he has something to say”. He claims that Mr. Bandy purposely dove from the seat of the tractor. He says that he didn’t hit Mr. Bandy that hard. This ignores the force that he used to strike Mr. Bandy and the fact that he caused the loss of two of Mr. Bandy’s teeth. He claims that he wanted to ask Mr. Bandy “politely” to move his car in but then complains that Mr. Bandy is crazy, that he sued his grandfather, that his grandfather is afraid of him and that he didn’t know what Mr. Bandy was going to do. At the end of the day, I found that Mr. Riopelle’s evidence was a contrived attempt to justify his wrongful act.
53For these same reasons, Mr. Riopelle’s evidence does not cause me to have a doubt. Additionally, Mr. Riopelle is younger and stronger than Mr. Bandy. While Mr. Bandy is taller, he was no match for Mr. Riopelle given that he sitting on running lawn tractor, wearing hearing protection, and paying attention to the task at hand.
54In my view it is absurd to suggest that he lunged at Mr. Riopelle or tried to grab his arm after observing Mr. Riopelle approach and coming over to meet him. In my view, Mr. Riopelle was incensed that Mr. Bandy was working in the Park given the long history of the family feud; he was angry that Mr. Bandy had parked his truck on his mother’s grass. Mr. Riopelle did not come in peace to have a polite conversation between gentlemen with Mr. Bandy about where he parked his truck. He came to confront Mr. Bandy and make his point that Mr. Bandy was not welcome in the Park. He decided to use his fist to make that point.
55With respect to the evidence of Terry Bandy, I found him to be an honest witness. There were few inconsistencies in his evidence. Defence counsel submitted that I should be cautious as he was evasive. I disagree. It is submitted that the fact that he continued to work in the Park when he was not welcome there is aggravating. I also disagree. The uncontradicted evidence is that Mr. Bandy continues to work in the Park because he has always done so and he has work to do there. The people that lease the land from Mr. Riopelle’s mother are entitled to ask whomever they want to work on that land. In my view, he gave a truthful account of what took place.
56With respect to the evidence of Kayla Mallay, I found her to be an honest witness who was trying her best to tell me what happened. Defence counsel submitted that she was an anxious witness, that her powers of recall were not the best, that there were contradictions between her evidence in court and her evidence to Police, that there were discussions with Mr. Bandy after the assault took place that coloured her view, and that she had an unconscious desire to support Mr. Bandy. Defence counsel also submitted that it is improbable that she “heard the wack”.
57I agree she was anxious – she was 81 years old when she testified. She obviously had not testified before. She told me that she was frightened. I agree that her powers of recall were not strong and counsel demonstrated several inconsistencies in her evidence which I have outlined above. I agree that it is improbable that she heard the assault. I was concerned about the possibility of coaching from her friend. I do not find, however, that her evidence was tainted by her later encounter with Mr. Bandy. She had no interest in the outcome of the case.
58That said, I find that the inconsistencies in her evidence are not so material that they shake the core of her evidence. She was looking out the window and she saw a man approach Mr. Bandy from behind and strike him. She saw Mr. Bandy fall off the tractor. She was unshaken on these key points and I accept her evidence.
59There will be a finding of guilt.
Released: December 16, 2022 Signed: Justice J.R. Richardson