ONTARIO COURT OF JUSTICE DATE: 2024 06 19 COURT FILE: Toronto 22-70006382

BETWEEN:

HIS MAJESTY THE KING

— AND —

CONRAD GRIZZLE

Judgment

Before Justice Brock Jones

Heard on December 1, 2023, and June 12, 2024

Reasons for Judgment Provided on June 19, 2024

T. Curley............................................................................................... counsel for the Crown C. Cotton-O’Brien............................................................................... counsel for Mr. Grizzle

Jones J.:

Introduction

Introduction

1Conrad Grizzle is charged with six offences relating to events on September 18, 2022. [1] The complainant was Ms. Shaylee Colley, his ex-partner and the mother of their child. He is alleged to have threatened her, assaulted her, stolen some of her property and violated a term of a release order. Some of the events are captured on video surveillance footage. Its authenticity was not disputed.

2While this case involved standard issues of witness credibility and reliability, somewhat novel legal arguments were raised by Mr. Cotton-O’Brien in Mr. Grizzle’s defence, including whether the principle of de minimus non-curat lex should preclude a finding of guilt on some of the charges, and if the final count of assault is properly characterized as a “consent fight.”

3Following a one-day trial, I received written submissions from the parties. On June 11, 2024, I heard oral argument. I reserved my decision. These are my reasons.

Testimony of Ms. Colley

Testimony of Ms. Colley

4Ms. Colley testified that on September 18, 2022, she returned home after an evening out with friends. She resided in a townhouse complex in East York. She left their shared child with Mr. Grizzle the night prior. They had been in a relationship for three years. A friend of Ms. Colley’s was also staying there with her child.

5She arrived at her residence sometime after 9 or 10 am. Ms. Colley had been drinking the night prior and decided to sleep before driving home the next day. Mr. Grizzle was waiting for her, sitting on the stairs inside her unit. He demanded she unlock her cell phone and produce it for his inspection. She refused.

6He warned her that she had three opportunities to tell him the truth about where she had been. If she did not comply, he would “beat her ass” or “bust her ass.”

7He grabbed the phone out of her hands and left the residence. It was a black iPhone 11. He also had her vehicle key. She was not sure how he obtained it. The key was to a 2014 Ford Escape. He appeared to be taunting her with it.

8What occurred outside the residence was captured on video surveillance footage. Mr. Grizzle walked to his car, and Ms. Colley chased after him to retrieve her phone and key. They had a verbal and physical struggle. Mr. Grizzle placed her in a bear hug and picked her up off the ground before putting her back down on the ground.

9He attempted to get into his car and drive away. They struggled again near the front door of the vehicle. Ms. Colley was carrying a drill with her, which she believed she needed for her protection. [2]

10He eventually got into his car and closed the door. As the vehicle left the parking lot, Ms. Colley threw the drill at him. It landed on the pavement.

11Ms. Colley testified she was scared and believed he could carry out the threat he made previously to harm her.

12She was unable to remember many details after that point. She claimed to have “blacked out”. She recalled she received her possessions back from someone else later that day.

13She did not remember what he said to her specifically while they were arguing over her possessions, nor could she remember what she said.

14She suffered pain in her stomach but was not sure if she was ever struck there. She felt helpless and disappointed that no one had come to her assistance. There were other residents of the housing complex in the parking lot area at the time the assault occurred.

15She sat next to some of her neighbours to calm down. At some point during the entire series of events, Mr. Grizzle threatened the bystanders that if anyone got between him and Ms. Colley, he would beat them up, too. She was uncertain when, in the chronology of events, this occurred.

16Mr. Grizzle returned to Ms. Colley’s residence hours later and was arrested by police officers. She testified he told the officers he didn’t care about them because he was a gangster and would do what he wanted to do.

17In cross-examination, she denied that her original plan was to come home by 11 pm on September 17, 2022, because she knew Mr. Grizzle had a legally imposed curfew. She also denied that he had been trying to contact her, without success, on her phone throughout the evening.

18When Mr. Cotton-O’Brien suggested that there were two keys to her vehicle, not one, she said she was “not sure.” She would not accept that Mr. Grizzle might have had another spare key to her car instead of having stolen her key.

19She was asked several times to clarify when Mr. Grizzle threatened her neighbours with violence if they intervened to help her. She could not pinpoint the timing.

20She explained that while the portion of video played in court was short, Mr. Grizzle argued with her for hours that day. She has post-traumatic stress from the abuse she suffered, and “sometimes things are not clear.”

21She was uncertain if there was a physical altercation when she and Mr. Grizzle were inside the townhouse. She repeated that her memory was “fuzzy.”

22She denied knowing about Mr. Grizzle’s curfew on a release order.

Testimony of Mr. Grizzle

Testimony of Mr. Grizzle

23Mr. Grizzle testified he was at Ms. Colley’s home because they shared a child. He was subject to a release order that required him to be in his residence by 11 pm. While he agreed to watch their child, he expected Ms. Colley to be home by then. As the night dragged on, and he ran the risk of violating his curfew, he was increasingly concerned. He could not reach Ms. Colley, and her friend (who was staying at the residence as well) was intoxicated. He did not feel he could safely leave his child in this environment.

24He confronted Ms. Colley the next day when she finally returned home. He asked her where she had been all night. He could tell she had been drinking. He testified she was involved in an inappropriate lifestyle, including prostitution, and he wanted no part of it.

25Mr. Grizzle agreed he took Ms. Colley’s phone from her to determine where she had been. He was concerned about what she was doing and if she was placing their child in danger by leaving her without appropriate care. He denied taking her car key and explained that he had a spare key from their time together in a relationship.

26He did not dispute the events that were captured on video surveillance. [3] However, he denied ever threatening Ms. Colley or her neighbours.

27When he arrived at his car, he knew Ms. Colley had followed him while holding a drill. They did “tussle,” but it was not a “heated argument.”

28He drove to a friend’s house before returning to her residence. There, he was arrested.

Position of the Defence

Position of the Defence

29Mr. Cotton-O’Brien submits on Mr. Grizzle’s behalf that Ms. Colley’s testimony suffers from problems with her credibility and reliability. Some of her claims were unbelievable, and she admitted to having problems with her memory. I should be very cautious about accepting any aspect of her testimony not verified by an independent source.

30If Mr. Grizzle breached his bail term, he did so for a morally defensible reason: to protect his child. He could not leave a young child alone simply to ensure he did not breach his curfew. The child’s safety was his paramount concern. This constitutes a “lawful excuse” or should otherwise be considered unworthy of criminal sanction.

31While the assault and theft of Ms. Colley’s phone are captured on video, he submits that the principle of de minimis should apply. Considering all the circumstances of what happened between the parties that day, the assault and theft should be viewed as an unfortunate but extremely minor transgression. Mr. Grizzle needed to know if Ms. Colley appropriately supervised his child when absent and if he could feel safe leaving her with their child. He had good reason to doubt Ms. Colley was being a responsible parent. Based on his previous experience, he knew he could not rationalize with her. Therefore, how he responded was understandable. His intention was not to harm Ms. Colley but to further investigate what was a legitimate matter of concern for him.

32Mr. Cotton-O’Brien further argued that the assault on video should be properly characterized as “consent fight”. Ms. Colley was an active participant and armed herself with a drill prior to confronting Mr. Grizzle.

Position of the Crown

Position of the Crown

33Ms. Curley submits that Ms. Colley’s testimony should be accepted. She was consistent and reliable regarding the events that occurred before the final assault she experienced. She remembered being threatened and how the phone was pried from her hands. The final acts of theft and assault are captured on video.

34The defences of “consent fight” and “de minimis” cannot succeed in this case. Even if they are legally available, they must be applied with extreme caution, given the harm associated with intimate partner violence. Mr. Grizzle’s assaultive behaviour was not trivial and caused injury to Ms. Colley. He had no right to take her phone and invade her privacy.

35Ms. Curley agreed that if I accept Mr. Grizzle’s testimony about why he breached his bail condition, that would constitute a lawful excuse.

Presumption of Innocence

Presumption of Innocence

36In R. v. Lifchus, [1997] 3 SCR 320 at para. 39, the Supreme Court of Canada held that “[a] reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.”

R. v W.D.

R. v W.D.

37In R. v. W. D. (1991), 63 CCC (3d) 397 (S.C.C.), the Supreme Court of Canada outlined the framework that a judge ought to apply in assessing witnesses’ credibility in a trial:

First, if the judge accepts the defence evidence then the accused must be acquitted. In this case, if I accept as true what the defendant and his witnesses say happened, then he should be found not guilty;

Secondly, if I do not believe the defence testimony or that of his witnesses, I could still be left with a reasonable doubt, and again I must acquit the accused.

Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence, including the evidence adduced by the Crown, to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against the defendant.

Analysis

Analysis

38Ms. Colley presented well as a witness. She spoke clearly and could answer most questions with considerable precision. She recalled how the altercation began, what Mr. Grizzle said to her, and how matters escalated into violence. She was under a great deal of emotional stress when she testified. Yet she answered all questions asked of her directly and succinctly. She acknowledged the frailties in her memory and did not attempt to mislead when she could not remember a specific detail.

39While she was not impeached on a prior statement, her testimony had internal inconsistencies. During her testimony in chief, she stated that there was “some type of physical scuffle” with Mr. Grizzle, implying that this may have started in her home but did not provide specifics. In cross-examination, she conceded she could not remember if there was a physical altercation in her home. In another example, she described Mr. Grizzle as “walking fast” to his car during a portion of her testimony in chief. Still, when she reviewed the video and was asked about this in cross-examination, she accepted that he was not walking fast.

40When first asked in cross-examination, she could not rule out the possibility of a second key existing for her car. After further questioning, she returned to her initial position, saying she only had one key because she purchased the car as a used vehicle.

[ 4 1 ] I am concerned that Ms. Colley exaggerated some portions of her testimony, such as how she described Mr. Grizzle as threatening her neighbours with harm if they came to her aid. That portion of her testimony evolved between examination and chief and cross-examination, and her inability to provide any context for when this statement was made raises doubt about whether it happened at all. I also find it unbelievable Mr. Grizzle threatened the arresting police officers that he was a “gangster” and was not intimidated by them. The presence of embellishment in a witness’ testimony is a basis to find them incredible: see R. v. Alisaleh, 2020 ONCA 597, at paras. 16-17.

42Nevertheless, I generally found Ms. Colley to be a credible and reliable witness when she described the abusive behaviour she suffered. She was trying her best to recall details about what was a challenging and traumatic event. Furthermore, while she bore some animus towards Mr. Grizzle based on the history of their relationship, she testified fairly. She was willing to admit when she had trouble remembering a detail and was not evasive when answering Mr. Cotton-O’Brien’s questions. At the same time, the reliability of her testimony was inconsistent. She had little to no memory of some of the events, especially after the video recording ended. I must also consider this, separate from my analysis of her credibility: see R. v. Slatter, 2019 ONCA 807, at para. 60.

43Yet a court may accept some, none or all of a witness’s testimony: R. v. C.P., 2021 SCC 19, at para. 35. As I will explain, I accept most of Ms. Colley’s testimony, including all portions of that testimony corroborated by the video evidence. While there were gaps in her memory, observations made during traumatic events may be difficult to recall and describe accurately when testifying: see R. v. G.M.C., 2022 ONCA 2, at para. 38.

44Mr. Grizzle testified in a forthright manner. Much of what occurred on September 18, 2022, was not disputed. Mr. Grizzle agreed that he was waiting for Ms. Colley to return home and that he agreed to watch their child the night prior. He accepted that he was frustrated that she did not return at their originally agreed-upon time due to his curfew. While Ms. Colley denied he informed her about his curfew, he insisted that she did know about it. This explained why he was upset the following day, as she placed him in a position where he had to either violate his curfew or leave his child unsupervised.

45He agreed that he took Ms. Colley’s phone without her consent and wanted her to unlock it, although he denied forcibly grabbing it from her hands. He also agreed that he asked her several questions about where she had been. He felt entitled to know these facts due to their shared parenting responsibilities. He kept her phone to find out the truth of her whereabouts when he was unsatisfied with her answers to his questions.

46I accept Mr. Grizzle’s testimony concerning some of the offences. It was logical and consistent, and he was not seriously challenged on these portions. He stated that he had a second key to Ms. Colley’s car, and she could not conclusively rule out this possibility. I am left with a reasonable doubt that he was unlawfully in possession of a single car key as the Crown alleges.

47I find him not guilty of count three, theft under $5000.

48While Mr. Grizzle did not dispute he took Ms. Colley’s phone, I am left with a reasonable doubt that how he obtained it constitutes an assault. She testified he took the phone forcibly from her hands and that it “felt like a struggle.” Mr. Grizzle denied that he took it from her by force and was not asked in cross-examination to explain how he obtained the phone in the alternative. I have reviewed the video surveillance footage of Mr. Grizzle and Ms. Colley continuing to grapple with the phone after he took it. It is consistent with Ms. Colley’s version of events and thus sheds some light on how Mr. Grizzle obtained the phone initially. Nevertheless, I am unable to conclude with certainty that he pried the phone from her hands with sufficient force that this was a criminal assault.

49I find him not guilty of count two, assault.

50Regarding violating his release order, Mr. Grizzle’s testimony that he could not leave the residence when Ms. Colley did not return home on time went unchallenged. He stated that he felt he could not leave because Ms. Colley’s friend was intoxicated, and if he had gone back to his residence, he would not have been properly caring for his child. He had a positive duty to care for his child’s safety.

51Mr. Cotton-Obrien argued that the defence of de minimis applies to this charge. I will discuss that argument later in this judgment, as it was also argued concerning two other charges. I do not find it necessary to consider that argument here, as another, more appropriate defence is available. [4]

52In R. v. Zora, 2020 SCC 14, the Supreme Court of Canada held that failure to comply with a condition of a release order is subject to the defence of “lawful excuse”: see para. 37. If the evidence establishes an “air of reality” to the defence, the Crown bears the persuasive burden of disproving it beyond a reasonable doubt: see R. v. Refaeh, 2024 ONSC 755, at paras. 55-71. [5] What is lawful will be context-specific.

53I am satisfied that Mr. Grizzle’s decision to remain with his child was justified in these circumstances. I note that the Crown did not call Ms. Colley’s friend to testify, and I have no contradictory testimony to consider about her state of intoxication that evening.

54Under Ontario law, it is an offence to leave a child under the age of 16 unattended “without making provision for the child’s supervision and care that is reasonable in the circumstances”: see Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sch. 1 (s. 136(3)). Mr. Grizzle also had a positive duty under the Criminal Code to care for his child: see section 215(1). I accept Mr. Grizzle’s testimony that he had to stay with his child at Ms. Colley’s residence until she came home. He was placed in the difficult position of abiding by his curfew or ensuring this child was safely cared for. He made the right and morally correct decision to prioritize his young child’s safety.

55I find him not guilty of count seven on the information, failing to comply with a release order.

56Mr. Grizzle does not dispute that he took Ms. Colley’s phone without her consent and technically assaulted her, as captured on the video surveillance footage. He denied threatening her, and Mr. Cotton-O’Brien submitted I should be left with a reasonable doubt the threat occurred due to significant concerns respecting Ms. Colley’s credibility and reliability.

57I conclude that everything that occurred between Mr. Grizzle and Ms. Colley on September 18, 2022, is consistent with the actions of a jealous ex-partner. Mr. Grizzle did not deny he was upset with her when she arrived home and demanded to see her phone to determine where she had been. Those are the actions of a possessive and controlling man. I reject his testimony that he needed to inspect her phone to protect their child. He could have pursued a calm, civil discussion with Ms. Colley about their shared parenting responsibilities at the appropriate time. He wanted to exert his power and control over her and would not tolerate what he interpreted as her defiance of his authority.

58His utterance in court that she was engaged in a form of prostitution was said angrily to smear her character needlessly. He clearly bore some significant animus towards Ms. Colley.

59A trial judge does not assess the accused’s evidence in isolation. As Code J. held in R. v. Thomas, 2012 ONSC 6653, at para. 24:

A trier of fact must look at all the evidence when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. At that same point, the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

60Mr. Grizzle’s denial of the threat he allegedly made to Ms. Colley must be considered in light of his admission that he was angry at Ms. Colley for returning home later than he expected, which caused him to violate his bail condition. He agreed he was sufficiently upset that he made demands to see her phone and for her to unlock it. The video surveillance evidence captures more of their altercation, including him acting violently towards her. It is entirely logical that he might have also threatened her, in some capacity, during this interaction.

61I accept Ms. Colley’s testimony that he threatened her with words akin to “I will beat your ass” if you do not comply with my demand to see your phone. Ms. Colley’s description of this threat was consistent throughout her testimony, unlike her description of the purported threats he made to her neighbours. Shortly after this threat was made, Mr. Grizzle assaulted her outside on video. While it is arguable whether his actions constitute “beating” her, he was violent with her as he promised he would be.

62I reject his denial of making the threat and do not find it raises a reasonable doubt. Fundamentally, he was very angry at her, and his entire behaviour was that of a man engaging in controlling and abusive behaviour. Considering all of the evidence presented at the trial, and notwithstanding my concerns with aspects of Ms. Colley’s testimony, I am satisfied that this threat was spoken beyond a reasonable doubt.

63I find him guilty of count 1, threatening bodily harm.

64Regarding the final two counts of assault and theft, Mr. Grizzle does not dispute he touched Ms. Colley without her consent and took her phone. He argues that the “consent fight” defence applies to the assault charge, and de minimis non-curat lex arguably applies to both charges.

65The maxim de minimis non-curat lex is often translated as “the law does not concern itself with trivial things.” Mr. Cotton-O’Brien noted in his written submissions that there is a lack of apparent appellate authority addressing whether the defence exists as a matter of law. It was briefly discussed by the Ontario Court of Appeal in R. v. Murdock, at para. 29:

…The “de minimis” defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest: Stuart, supra, at pp. 594-98. The harm principle also underlies the long accepted rule of statutory interpretation which directs that criminal statues, where possible, should not be read so as to encompass conduct which is trivial or harmless (citations removed)…

66Mr. Cotton O’Brien submits that I must consider why the defence should be recognized. He cites various academic articles, such as Prof. Colton Fehr's “Why De Minimis is a Defence: A Reply to Professor Coughlan” (2021) 67:1 McGill LJ 1. Prof. Fehr wrote that the judge’s function includes a “residual discretion to stay proceedings where their actions would be inconsistent with the principles of fundamental justice.” The de minimis defence must be recognized “to ensure that injustice does not issue from the rote passing of judicial sanction”: see defence written submissions, para. 20. The defence should apply not only where the offence is trivial but where the “circumstances of the offence render it is so”: see defence written submissions at para. 23.

67Mr. Cotton-O’Brien submits that in this case, both the final assault and Mr. Grizzle’s attempts to gain access to the phone by force must be understood in the context of his client’s legitimate and appropriate concern with his child’s welfare. That explains why he took these actions. He was acting with good intent and not merely to cause harm to Ms. Colley. Therefore, I should exercise judicial discretion and enter a not-guilty verdict because the offences were viewed in context de minimis.

68While I appreciate the creativity of Mr. Cotton-O’Brien’s arguments, I cannot accept that the de minimis defence applies to these offences. There was nothing urgent about the situation Mr. Grizzle found himself in that justified his decision to use violence against Ms. Colley. A reasonable alternative was readily apparent – he could have waited to have a civilized discussion with Ms. Colley about his concerns. This may have taken time, been frustrating, or even resulted in unhelpful dialogue. If necessary, he could have proceeded with an application in family court. I heard no evidence any of this had been meaningfully explored previously.

69Patience and resort to lawful means to resolve a dispute must always be chosen over an act of intimate partner violence. While I agree with Mr. Cotton-O’Brien that the context of the offences must be considered, in my view, the societal values associated with intimate partner violence will almost always preclude the successful application of the defence of de minimis or “consent fight”: see R. v. Carson, at para. 25; Gosselin c. R, 2012 QCCA 1874, at para. 40; R. v. Downey, 2002 NSSC 226, at para. 37.

70That is not to say the defence could never succeed in a case of intimate partner violence. In R. v. R.M., 2024 ONCJ 272, the accused was charged with assault. He removed his wife’s wedding ring from her finger without her consent. He caused her no pain and only had to resort to minimal force: see para. 20. Justice Campitelli viewed this as “trivial in nature” and dismissed the charge: see para. 22.

71To be clear, my review of the video of the assault in this case leads me to the conclusion that this was far from a minor assault and was a completely unwarranted application of force against Ms. Colley. I am also satisfied Mr. Grizzle decided to take her phone to exert power and control over his former intimate partner by accessing her private information. It was also not a trivial matter.

72Finally, nothing about the assault, as recorded on the video surveillance, suggests this was a “consent fight.” Mr. Grizzle was in complete physical control of Ms. Colley. She may have approached him with a drill in her hand and an expectation of the possibility of conflict. That does not mean she was consenting to violence. It merely demonstrated she felt the need to protect herself.

73I note that in a comprehensive and extremely thoughtful decision, Justice Burstein of this court analyzed the authorities across Canada regarding “consent fights” and concluded that in the context of intimate partner violence, any intentional application of force “capable of causing an injury that is more than trivial” will not be sheltered from criminal liability: see R. v. Ram, 2022 ONCJ 347, at para. 28. Justice Burstein’s decision was cited approvingly by the Alberta Court of Appeal in R. v. Barton, 2024 ABCA 34, at para. 215. I am bound to follow this decision based on the principle of horizontal stare decisis.

74However the parties’ confrontation began, I am satisfied that the assault captured on video was capable of causing an injury that was more than trivial. Mr. Grizzle picked Ms. Colley up against her will and forcibly held her while she resisted. He left her on the ground. Other people who witnessed this assault occurring stopped to watch what was happening. While I cannot conclude beyond a reasonable doubt that Mr. Grizzle caused the pain to Ms. Colley’s stomach that she described, that is not required.

75The Crown has proven his guilt on these charges beyond a reasonable doubt. I enter findings of guilt on count 5, assault and count 4, theft under $5000 (cellphone.)

Released: June 19, 2024 Signed: Justice Brock Jones

Footnotes

Footnotes

1The information contained seven counts but the Crown withdrew one of them prior to the start of the trial.

2She testified Mr. Grizzle had been violent with her in the past. There was no application to admit prior discreditable conduct. I have considered this evidence solely in terms of Ms. Colley’s subjective beliefs about her personal safety and to explain her conduct.

3There is no audio on the recording.

4See R. v. Juliano, [2002] O.J. No. 699, at para 26, which seriously calls into question whether the defence would be available to a charge of violating a condition of a release order intended to protect a victim of intimate partner violence.

5Justice Petersen’s decision was focused on the defence of “reasonable excuse” located in Criminal Code section 320.16. Nevertheless, the judgment is comprehensive, thoughtful and entirely persuasive. In my view, the same reasoning must apply to the defence of “lawful excuse” located in Criminal Code section 145(5); see also Zora at para. 37.