ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ROBERT BRYANT
Before Justice Fergus ODonnell
Reasons for Judgment
Mr. A. Ansari for the Crown
Ms. L. Gensey................................................................................................... as s. 486 counsel
Mr. R. Bryant................................................................................................... on his own behalf
Fergus ODonnell, J.:
Overview
Robert Bryant appears before me facing two domestic violence charges, separated in time by about two-and-a-half years. The alleged victim was his wife, Aimee Bryant. Both alleged offences took place at the family home in Caledon, one while Mr. Bryant lived there, the second after he had moved out.
The allegations arise in the context of a marriage in decline, one that, at least in the complainant's mind, might have been salvageable at the time of the first incident but was clearly headed to dissolution by the time of the second. I use the word "incident" because there is no dispute between the parties that some physical conflict happened between them on each date, although their characterizations of each event differ dramatically.
The first alleged offence is a charge of simple assault in December, 2021. For ease of reference, I shall call this the basement incident. The other allegation is of assault with a weapon, namely a beer can, which I shall call the kitchen incident.
I heard from Mr. and Ms. Bryant, who were the only people with any first-hand knowledge of the central events, i.e. the conduct alleged to have made out the assaults. The Crown also called Mr. Bryant's brother, Michael Bryant, as a witness because Ms. Bryant had called him to the house on the night of the basement incident and Ms. Debbie Pendlebury, a very long-term friend of the couple and also a professional colleague of Mr. Bryant's although they had never worked together. The Crown also called Constable Syed Ali of the Ontario Provincial Police, who had attended at the family home around the time of the kitchen incident, which was the second in time, but the first allegation reported. I also heard from Mr. Bryant himself, as well as very briefly from his father, Alan Bryant. There was also a series of photographs and text messages that were led in evidence.
Mr. Bryant, his brother Michael and his father Alan are all either serving or retired police officers, as is Ms. Pendlebury, a fact that is generally irrelevant in the determination of this case, but does inform some of the flavour, especially in the context of Ms. Bryant's description of Michael Bryant's questions of her and his arrival at the house.
An Important Aside
Before getting into the details of the case I note that in his submissions Mr. Bryant expressed his displeasure that, although his father, Alan Bryant, had been on the Crown's witness list, Mr. Ansari did not end up calling him, with Mr. Bryant insinuating that the Crown's failure to call Mr. Bryant senior was somehow improper. Although it makes no difference in the outcome, such assertions need to be addressed as a lawyer's reputation is his or her most valuable asset and, once raised, such suggestions should not be left to linger. To be clear, there is not, and never has been property in a witness. Either party is free to call whatever witnesses they think have relevant evidence to give at a trial. They are also free to decide not to call a witness. The fact that Mr. Alan Bryant was at some point on the Crown's witness list is neither here nor there, whether that witness list was created by Mr. Ansari in the past or by one of his colleagues. Witness lists often include witnesses whom the Crown does not end up calling, for a variety of reasons including that the case management Crown may be over-cautious so as not to catch the defendant by surprise by calling witnesses not mentioned. Different lawyers will see cases differently and make different choices accordingly. Crown counsel in particular, particularly in an under-resourced region such as Orangeville, will have a strong incentive and professional duty to try to keep trials as trim as is reasonably possible in order to make the optimal use of limited and stagnant Crown and judicial resources. Mr. Ansari's choice not to call Mr. Alan Bryant as a witness was Mr. Ansari's choice to make and his alone. His conduct of this trial reflected preparation, mastery of the issues and evidence and fairness and balance throughout.
As an aside, I note that Mr. Bryant represented himself for most of the trial, and he did so with a similar mastery of the issues and evidence and conducted his defence capably. For the cross-examination of Ms. Bryant and of Mr. Bryant's brother, Michael, Mr. Bryant was assisted through s. 486 of the Criminal Code by the always capable Ms. Gensey.
Ms. Bryant’s Evidence
Ms. Bryant testified that the basement incident occurred on an evening much like most evenings in their home at that time. After dinner, she and Mr. Bryant retired to the basement to watch television while their daughters were in their bedrooms. It was not entirely a normal environment, however, as about four months earlier Mr. Bryant's extra-marital affair with a work colleague, Lisa, had come to light, so there was tension. But it was Ms. Bryant's evidence that her family meant everything to her and she was still trying to salvage the marriage and to make things work, despite, as she claimed, walking on eggshells for four years.
In that context they were on the couch, she said, with his arm around her shoulders. She then put her arm around his chest, whereupon he whipped it away and challenged her, saying "don't you have any boundaries?", to which she replied, "I bet you wouldn't do that if I was Lisa". This, she said, enraged Mr. Bryant, who got up. She then got up and went to the stairs, chased by Mr. Bryant. She tripped and fell at the first landing (this was a four-level side-split house), and used her arms to block her head (she testified that this was not his first assault of her), at which point she said Mr. Bryant, put his knee on her chest, removed her arms and punched her once in the face. It was all over in seconds and she said it was very painful.
Ms. Bryant said that she then ran upstairs and outside and called Mr. Bryant's brother, Michael, who lived about an hour away. Michael Bryant immediately got in his car to drive over. By Ms. Bryant's evidence, she spent most of his drive-time on the phone with Michael; Michael, whose evidence was peculiarly lacking in detail, did not recall that element although he did not deny it. Given the relative quality of their testimony, I am more inclined to accept Ms. Bryant's evidence about the length of the conversation than Michael's uncertainty. I certainly do not find that "discrepancy" between them to undermine Ms. Bryant's evidence as Mr. Bryant asked me to do in submissions.
Ms. Bryant said that Michael questioned her during the drive about Mr. Bryant's state of mind, whether or not he had been drinking and where his firearms were. She said that Michael told her that he needed to know what he was walking into and that when he got out of his car he was carrying a baseball bat. These details enhance Ms. Bryant's reliability as they reflect a long and sad reality of policing, namely that officers responding to domestic violence calls are often at the highest risk of personal danger of any type of call to which they routinely respond.
As Michael Bryant was getting close to the house, Ms. Bryant said she re-entered the house from the back as it was cold, whereupon Mr. Bryant left by the front door and she told him he shouldn't drive as he had been drinking, although she could not recall how much that evening. She said Michael told her to stay in the house and then went to talk to Mr. Bryant in the garage. When Michael returned, Ms. Bryant said that Michael told him Mr. Bryant would not be coming back to the house that night and that he would take him to sleep out the night at Mr. Bryant's workplace. Ms. Bryant said that Michael told her she needed to call the Ontario Provincial Police and she begged him not to do so, for fear of what that meant for the family, for their public appearance, for Mr. Bryant's job, for potential retaliation by Mr. Bryant, which she said had since happened and for their finances. Faced with Ms. Bryant's refusal to call the police for the alleged assault, she said Michael Bryant told her to call their father, a former police officer himself, the next day and that she should take photographs of her face, which she did. Other than her, only Michael knew there were photos taken after the event.
The photographs filed show very clear bruising directly under Ms. Bryant's left eye.
Ms. Bryant said that she did speak with Mr. Bryant's father, Al Bryant, the following day. They discussed whether or not Mr. Bryant had any close friends and decided that Ms. Bryant should call a fellow officer who happened to be in Internal Affairs. Ms. Bryant said she called that officer and disclosed the alleged assault, whereupon the officer asked why she was telling him, to which Ms. Bryant said she answered that she thought he was, "the only person on the planet Rob wouldn't tell to fuck off".
Ms. Bryant did not call 911.
One of Ms. Bryant's longest and closest friends was Deb Pendlebury, also an officer with the Peel Regional Police, someone with whom Ms. Bryant said she spoke every day. She said that Ms. Pendlebury was aware of Mr. Bryant's infidelity and his drinking, but she did not tell her about the basement assault until two-and-a-half years later, in May, 2024, when the kitchen incident took place.
The kitchen incident was on Mother's Day weekend in 2024. By this time Mr. Bryant had moved out of the family home in Caledon, but would come and go, having dinner with Ms. Bryant and their daughters a couple of days a week. On that day, Ms. Bryant said that Mr. Bryant had come over to drain the pool cover and help remove it, which she described as not a one-person job and as something he had done for years. She said that she was on a work call when he arrived and she went out to see him after the call was over, whereupon she found him working on the pool and drinking a beer. She said that he berated her because she had lived there for sixteen years and should know how to do that herself. During this argument, Ms. Bryant said he threw his beer over the pool hut and into the neighbours’ yard. She said he got another beer, but when she asked why he had thrown the first one at the neighbours' place, he then threw the second beer and an aluminum chair on the lawn. He went and got a third beer. She said that between then and dinner time he consumed a few beers.
Ms. Bryant said that during dinner she was making small talk, still hoping to make the marriage work. She said she asked how the burgers were, to which Mr. Bryant asked if her mouth never gets dry and why doesn't she shut up. Their daughters went to their rooms and Mr. Bryant got another beer and berated her about how she could go from being, "pissed off to asking about other people's days as if nothing happened." He then said that he would no longer submit Ms. Bryant's receipts for a therapist she was seeing (to his work insurance). Ms. Bryant said her response was that she bet he wouldn't speak that way to Lisa, who has a lot of problems, in response to which she felt, but did not see, a nearly full can of beer hit her near the eye and land in the kitchen sink. She described this pain as a six or seven on a ten-point scale, compared to the ten out of ten from the basement incident. She checked for bleeding, walked to the front door and told Mr. Bryant to get out. He went and got one of their daughters from her room to attend a planned movie night and from the car texted Ms. Bryant that the mortgage payment he had made the day before was going to be the last one he ever made.
After he left, Ms. Bryant said she called his brother Michael and Ms. Pendlebury. Michael said that if Ms. Bryant did not call the police he would. Ms. Pendlebury, who was aware of previous conflicts, but not of any previous alleged assault by Mr. Bryant, also told Ms. Bryant to call the police and said that she would give Ms. Bryant the weekend to do so, or else she would make the call herself.
Ms. Bryant did not report the alleged kitchen assault to the police. Rather, Ms. Pendlebury made that call, resulting in Constable Ali and two other officers of the Ontario Provincial Police attending Ms. Bryant's house late in the evening of 14 May, 2024. During that interaction, Ms. Bryant declined to give a statement but did answer a series of domestic violence-related questions from a standard form, all in the negative, which she said were untruthful denials because she still wanted to maintain peace and sweep things under the rug. The O.P.P. officers proceeded from that interview to Mr. Bryant's home that same night, where they arrested him for the kitchen incident.
It was about a fortnight later that the earlier basement incident came formally to the attention of the police. Ms. Bryant said that on the weekend of 31 May, 2024, three weeks after the kitchen incident with the beer can, she went away to a cottage. There were messages about Mr. Bryant wanting to go to the house in her absence, but with a police officer, to recover property, about which she was concerned. She then consulted with Ms. Pendlebury and her husband, Brent Magnus; she discovered a search on her Google account about her playing victim and it being time for scorched earth, not realizing at the time that she and Mr. Bryant could see each other's searches as it was a shared account (that capacity may have contributed to her sense of being under surveillance as he had access to some of her material likewise). Mr. Magnus and Ms. Pendlebury said that Ms. Bryant had to tell the police about her sense of fear in light of these messages, at which time she showed them, for the first time, a photograph from the basement incident two-and-a-half years earlier. Ms. Pendlebury then called the Peel Regional Police Internal Affairs unit again (the alleged offences were in the Caledon O.P.P. catchment area, but Mr. Bryant is a Peel Regional Police officer). Ms. Bryant called the O.P.P. about the basement incident on 1 June, 2024.
Ms. Bryant gave her statement to the O.P.P. about the basement incident on 3 June, 2024. It appears that Mr. Bryant then made a complaint of his own on the same day, that their children were interviewed by the police on 4 June, 2024 and that Ms. Bryant was then called in to face eight allegations made by him and was formally charged that day. She said that some of the charges against her were withdrawn promptly and that the other charges against her were subsequently withdrawn.
Ms. Bryant's explanations for why she did not call the police on each occasion are unsurprising, although it does not follow from that reality, that her allegations are necessarily true. There is, by this point in history, no surprise in victims of domestic violence being reluctant, for a wide variety of reasons, several of which Ms. Bryant recounted herself, being extremely reluctant to get the police involved. This does not mean that a complainant's allegations of assault are true, but it does mean that any suggestion that a complainant's failure to notify the police in a timely way necessarily undermines his or her credibility will generally fall on rocky ground. The same is true of a complainant's denials of domestic violence to others (in this case to Constable Ali of the Ontario Provincial Police and to the family counsellor): a complainant's denials of domestic violence do not necessarily mean the domestic violence did not happen or that the complainant's evidence in court is untrue. It is simply one factor for the trier of fact to take into account, tempered by the awareness that domestic violence victims often cover up their own victimhood.
Ms. Bryant was thoroughly and capably cross-examined by Ms. Gensey as s. 486 counsel since Mr. Bryant was self-represented on this trial. She was presented with a series of text messages. She accepted that a message stream around 10:08 p.m. on 14 December, 2021 involved her asking him to come home (he was in the garage) and said that was desperate to keep the family together, even within an hour or so of the basement incident. He asked for the keys or he would take a cab and she said her concern was him driving impaired.
Another text exchange occurred around 7:20 a.m. the next morning. Ms. Bryant said the opening bubble in that conversation related to her discovery of his affair and that her actions since then were solely for the purpose of repairing their relationship. Mr. Bryant's response questions her decision to call in his brother and his brother’s suitability to opine on married life and parenthood and refers to Mike showing up with "a gavel", which is potentially supportive of Ms. Bryant's comment that Mike Bryant came out of his car with a baseball bat. Mr. Bryant accuses her of driving a wedge between him and his family, she says she was scared and unsure what to do. He says he seems to fall short all of the time and needs time and she replies that she will back off and asks for one more chance "not to fuck up more."
The next page of the morning-after text conversation shows Mr. Bryant asking how often he's walked away from a "fight" (which in fairness could very well mean argument only), "only to get punched and kicked by you. Bet you left that out." Ms. Bryant's response to that was that the only time she had ever hit him in the past was in self-defence. In the text exchange she admits having punched Mr. Bryant in the past but also says that she had disclosed all of that to Michael. She testified that the punching referred to in the text message on 15 December, 2021 was not the night before and had been her defending herself on those other occasions.
There is some reason for concern about the overall integrity of this email chain. Ms. Gensey assured the court that the first and second pages were contiguous and I do not for a second question her integrity and her belief in that assertion, but the content of the two pages does suggest a disconnect because the second page contains a denial by Ms. Bryant of ever calling Michael Bryant a "piece of shit", whereas there is absolutely no entry by her to that effect anywhere in the chain. For whatever reason (whether by innocent error or artifice on someone's part matters not for my purposes), it appears that the email chain tendered by Ms. Gensey is not complete or contiguous.
Ms. Bryant fully accepted in cross-examination that she had denied any history of domestic violence to Constable Ali when he attended the house and in the family law arbitration counselling questionnaire, saying that any physical behaviour on her part was in self-defence rather than as the aggressor.
The Other Crown Witnesses
Mr. Bryant's brother, Michael, testified to the general background, namely that he and Mr. Bryant were not very close but on decent terms, that he had learned of "marital issues" around August, 2021 (which is when Mr. Bryant's affair with Lisa came to light), that his brother had said he might need a place to live and that he had offered his place as he would be away for a few months. He also corroborated the fact that Ms. Bryant was trying to salvage the marriage.
Michael Bryant described Ms. Bryant's tone when she called him as "not hysterical but extremely upset". He did not recall if he spoke with her on the way. (I accept Ms. Bryant's recollection as more reliable than his because Michael Bryant's evidence was strangely lacking in detail, especially for a person with twenty years’ experience as a police officer). When he arrived at the house, Ms. Bryant was visibly upset, crying, with a red face. He did not see any sign of injuries. He spoke with Ms. Bryant briefly and then went and found Mr. Bryant in his car in the garage. He thought Mr. Bryant was asleep when he sat down beside him but Mr. Bryant was definitely displeased to see him there. Michael Bryant said he thought it best for Mr. Bryant to leave for the night because marital problems are complicated; Mr. Bryant was terse, but eventually, after perhaps a quarter of an hour, agreed to leave. He did so and Michael Bryant told Ms. Bryant he would follow his brother away from the house, which he did.
Michael Bryant next saw Ms. Bryant about eight or nine days later at a Christmas gathering at the Bryants' parents' home. At that time she had a black eye.
In cross-examination, Ms. Gensey suggested to Michael Bryant that Ms. Bryant had never disclosed to him any criminal conduct on the part of his brother. I found Michael Bryant's answer to be peculiar and not confidence inspiring: "I don't remember the verbatims from that time; my concern was for her safety."
Overall, to the extent that Michael Bryant's evidence from that night differs from Ms. Bryant's evidence, I am compelled to conclude based on having seen them in court and being subject to cross-examination and on analysis of their overall responsiveness and their manner of presentation, that Ms. Bryant's evidence is more complete and reliable.
Debbie Pendlebury has known Mr. Bryant for about twenty-two years and Ms. Bryant for about twenty-seven years. For most of that time, until about 2021, Mr. Bryant was one of her and her husband's closest friends, but there has been no relationship since the summer of 2021, coinciding with the disclosure of Mr. Bryant's affair with Lisa. Ms. Pendlebury is an Inspector with Peel Regional Police but has not had any professional relationship of any substance with Mr. Bryant. Ms. Pendlebury speaks with Ms. Bryant daily or more often.
Ms. Pendlebury had no direct knowledge of the two incidents. Indeed, she was in the dark about the December, 2021 basement incident until after the May, 2024 kitchen incident. She confirmed that Ms. Bryant had called her on 10 May, 2024 to tell her about the kitchen incident (which is clearly hearsay) and described her emotional state. She confirmed that she had advised Ms. Bryant to call the police and that if she did not do so by the end of the weekend, she would call the police herself, an ultimatum she followed through on. She testified that after she learned of the original, 2021 basement allegations Mr. Bryant filed a bunch of stale internal complaints about her with the Peel Regional Police, which she said had been dismissed. She said that a complaint against Mr. Bryant of having filed retaliatory complaints against her was still outstanding (Mr. Bryant in his testimony said that the dismissal of his complaints was based on false evidence and that there was bad blood as a result of a misunderstanding about a "rat" comment made by him some time ago. Ultimately, it is not within my remit to determine the whats and wherefores of the internal disciplinary process at Peel Regional Police, other than to take note of the fact that there is no love lost between Ms. Pendlebury and Mr. Bryant, to the extent that that might cause her to manifest animus against him through her testimony.
Mr. Bryant cross-examined Ms. Pendlebury at length. This included the suggestion that the laying of the basement charges was a form of retaliation for Mr. Bryant having, shortly before those charges were laid in mid-2024, disclosed that Ms. Bryant was having an affair of her own with a member of the Peel Regional Police. In Mr. Bryant's own words, that disclosure by him had the effect of him "poking the bear". Mr. Bryant juxtaposed a "sexually charged" message sent by him to Ms. Pendlebury's husband the same evening as the 1 June report to the O.P.P. as evidence of this "poking of the bear" and Ms. Bryant's retaliation with the delayed laying of a charge for the alleged basement assault years earlier. Ms. Pendlebury said that although the text to her husband was some hours before the O.P.P. general occurrence report, they had all been so busy dealing with Ms. Bryant's disclosure/allegations about the basement assault that her husband had not in fact seen that "poking the bear" message until hours later.
Mr. Bryant’s Evidence
Mr. Bryant testified. He said the marriage had been unhealthy since 2014 and that he had moved out to an apartment in Orangeville in September, 2023 because the environment was getting toxic for their daughters, although he only slept at that apartment and otherwise spent time at the family home, which he said Ms. Bryant resented because she had come to see the house as hers. He said that, "this is where the whole thing came from". None of this was put to Ms. Bryant in cross-examination.1
Mr. Bryant testified that he was verbally aggressive because words are his weapons, whereas Ms. Bryant said to him that she hits him because words don't hurt him. He said she had lied in court about the nature of her employment, that she had misled family court about her income in order to increase his support obligations and that she had defrauded the Canada Revenue Agency by failing to disclose real estate income and that she and her brother were under investigation for that. I do not know if any of these is true, but none of these was ever put to her in cross-examination. As a result of these violations of the rule in Browne v. Dunn I find myself unable to rely on them in assessing the strength or weakness of the Crown's case. These comments about Ms. Bryant's credibility and character may or may not be true, but they are not allegations she had a chance to address so I remove them from the calculation at this trial.
Mr. Bryant had substantially different versions of the basement event and the kitchen event. He spoke of the kitchen event first.
With respect to the kitchen event, Mr. Bryant said that he was at the house working on the pool when Ms. Bryant returned home with their daughters and brought out two beers. He said she got into an immediate argument about her having noticed his haircut and him not having noticed hers (this was not put to her in cross-examination). He said he was frustrated by all of her "verbal hardships and consistent complaints and emotional outbursts" about the affair he had been in, given that he felt that she had been in a new relationship of her own since November, 2023. So within seconds of the hair argument, he said he just threw his beer as far as he could and it landed in the neighbours' yard, that being the first beer he has thrown in his life. He said he swore at her and told her to leave him alone, but she went inside for thirty seconds and then came and asked if they could talk about her emotional state, about Lisa, about her haircut and he responded by tossing a second beer can in order to send a message that he had had it. He said that he told Ms. Bryant to fuck off and went inside for a cooling off period, which he said was his pattern.
They then had dinner. He agreed that her description of the conversation about the burgers and his expression of surprise about her mouth not drying up from so much talking was accurate. After dinner he said he got a beer, the first one he had because he had thrown two away earlier. He said they were both by the sink when Ms. Bryant made a "Lisa remark", whereupon he looked at her and poured the beer in the sink to show his displeasure, she told him not to do that and he then threw it to the left while telling her to go fuck herself. He said he did not throw the can with any intention to hit her and did not know if it had deflected off a cabinet. He pointed to discrepancies in the distance Ms. Bryant described at different times, which do not strike me as material, but he was insistent that they were side by side along the side of the counter, swearing at each other. He commented on her therapy bills and said he wouldn't pay unless he could attend because he didn't believe she was being honest with the therapist about her own affair. He said that he was sick and tired of Ms. Bryant lying to earn sympathy. He then took one of their daughters to a movie as had been pre-arranged.
Mr. Bryant said that the weekend that followed was a normal weekend with Ms. Bryant going on a group bike ride with friends and him taking their children to the cottage for the day and then making dinner for everyone. They celebrated Mother's Day on Sunday morning and then headed home. Monday was his birthday, which they celebrated at the family home, whereafter he left. Then late on Tuesday night he got the late night knock at the door from the O.P.P. officers there to arrest him for the kitchen incident a few days earlier.
As for the basement event, Mr. Bryant testified that after his arrest for the kitchen incident the release condition for no contact with Ms. Bryant made access to his children difficult and he felt that from that point on Ms. Bryant weaponised the criminal courts as the first step in an eighteen month battle in family court. The third-party contact for access was Ms. Pendlebury's husband, which Mr. Bryant felt was a conflict as he perceived Ms. Pendlebury as the person who had gotten him charged over the kitchen incident. On 1 June, Mr. Bryant said one of his daughters called him on a video call about how to replace a water filter at the cottage, but he heard Ms. Bryant's voice in the background and was uncomfortable (because of the bail conditions presumably), so hung up. Then his daughter called again and said it was Ms. Pendlebury's husband with her and Mr. Bryant said he got angry about a 65 year old man using a 12 year old child as a screen rather than asking directly about how to change the filter. Against that background, he said, he decided to stop sitting on Ms. Bryant's alleged secret affair of her own, which he had told nobody about. He said that within two hours of him messaging Ms. Pendlebury's husband about Ms. Bryant's affair there was a report to the O.P.P. about him engaging in tracking Ms. Bryant and so on, allegations that he denied entirely, other than having gone into a shared computer that included internet searches he had not made. He said that on 2 June he shared that background with the police officer and was told the tracking type charges were going nowhere and the following morning Ms. Bryant was at the O.P.P. in Caledon alleging the December, 2021 basement event.
As for what actually happened in the basement in December, 2021, Mr. Bryant said the general scenario on the couch was as described by Ms. Bryant, with him sitting crucifix-style beside her but not hugging her. He said that there had been tension over the past few months because of the affair, he had moved out for a while, they were in counselling which included talk about boundaries. When Ms. Bryant closed up and made advances towards his stomach, he said he told her he wasn't comfortable with that and to watch her boundaries, to which she replied that she bet it would be okay if she was Lisa, to which he swore at her and they were in an argument about boundaries.
Mr. Bryant said that Ms. Bryant then got up and engaged in a stream of sexually derogatory remarks, both loud and offensive, to which he responded in an equally verbally aggressive manner and announced he was leaving, but she cut him off. He said in cross-examination that the sexual vulgarity led him to escalate. He pushed her away and went up the stairs to the ground level, where she blocked the door. He said that he then went back downstairs with her following, that she got on him, he told her to get off and that his elbow made contact with her eye, which was unintentional. He said that the blow was a five or six on a ten-point scale. He said that he had never struck her in any way other than self-defence and that he had never struck her with his fist. He managed to get away again and went to the garage and got in the car and put the key in the ignition, but she took the key, locked the car and announced that she was calling his brother, leaving him locked in the car where he fell asleep until his brother arrived. Mr. Bryant then went through a series of messages between them, which included her imploring him to come back for the holidays for the sake of the family and him saying there is no point in prolonging the inevitable.
Mr. Bryant said that he and Ms. Bryant were in a toxic relationship, but that he was not an assaultive husband, although he says that will be Ms. Bryant's narrative forever. He did admit a comment attributed to him by Ms. Bryant to the effect that if he had punched her in the head she would have needed reconstructive surgery. He said the words disgust him because he abhors domestic violence, but he was simply trying to point out that given the two to one weight difference between them and the substantial height difference, it would have been impossible for a full-fisted blow as described by Ms. Bryant to have caused only the level of injury shown in the photographs.
Mr. Alan Bryant’s Evidence
Mr. Alan Bryant, the father of Mr. Bryant and Michael Bryant testified that he met Ms. Bryant at a Tim Horton's in Erin and asked her about the cause of the injury to her eye and asked her to explain what happened. He said that her answer involved no particulars, but just her saying that she was equally responsible for what happened. He said that he told Ms. Bryant she should change the locks and not let Mr. Bryant back in the house in order to protect both his son and Ms. Bryant.
Alan Bryant also recounted an incident in 2023 when Ms. Bryant had called him and left the phone off the hook where she wanted him to hear an argument between her and Mr. Bryant; he said it was not clear what her intention was but that it appeared that she was trying to provoke Mr. Bryant, but Mr. Bryant was silent other than to ask her what she was doing. After five minutes of these attempted provocations, Alan Bryant said he hung up. He said there were other similar phone calls and also that he had a text from her saying that she had no safety concerns, which was consistent with all his communications with her. In cross-examination Alan Bryant agreed that domestic abuse victims sometimes delay reporting and that that delay does not necessarily mean the violence did not happen.
The Rules Governing Every Criminal Trial in Canada and Their Application Here
There are certain principles that govern this trial as they govern every criminal trial in this country.
First, every defendant in a criminal trial is presumed to be innocent. That presumption accompanies him throughout these proceedings unless by the end of the trial the Crown has proved beyond a reasonable doubt that he is guilty of the offences alleged. Proof beyond a reasonable doubt is a very high standard of proof. Courts have forever avoided attaching a number or percentage to precisely what it means, but it comes close to absolute or scientific certainty. It is dramatically more demanding than the standard of proof in civil litigation, which is only proof on the balance of probabilities, i.e. is one party's version of events 50.1 per cent credible compared to the opposing party's 49.9%. No criminal trial is an either/or contest of credibility. Every criminal trial is, by design, heavily weighted against the prosecution and the complainant. This structural imbalance, which is central to our criminal justice system, is most heavily felt in relation to offences that occur in private between two people. The burden of proof and high standard of proof are universal principles of our law; they apply to defendants who are paupers and those who are prime ministers, to defendants who are loved and to those who are loathed.
Both the burden of proof in a criminal trial and its exacting nature are undoubtedly, and understandably frustrating to complainants in criminal trials and those who care for those complainants, but they are, for very good reasons, fundamental features of our criminal law, reaching back for centuries. There can be no doubt that they result in persons who are factually guilty being found not guilty, but these principles that at times result in the guilty going free are also the provisions that would protect every one of us and everyone we care about if they were ever accused, rightly or wrongly, of a crime. The concept that it is better that a large number of guilty people go free than that a single innocent person be condemned goes back at least five hundred years in the Anglo-Canadian legal system, and others, and a closely-related principle is even found in the book of Genesis.
In this case, Mr. Bryant has testified. In that context I am required to incorporate three stages of analysis in my approach to the case. First, if I believe Mr. Bryant's denials of criminal behaviour I must acquit him, because believing his testimony would necessarily involve having a reasonable doubt about his guilt. However, even if I do not believe him, if his testimony nonetheless creates reasonable doubt in my mind, I must still necessarily find him not guilty, because the existence of reasonable doubt emanating from the defence evidence is incompatible with a finding of guilt beyond a reasonable doubt. Thirdly, even if I do not believe Mr. Bryant and do not find reasonable doubt of his guilt in his testimony, I must still look at all of the evidence or absence of evidence and ask myself if the Crown has demonstrated Mr. Bryant's guilt on either or both of the charges beyond a reasonable doubt. This third stage is fundamental, because if one were to proceed from the second analysis straight to a finding of guilt, one would have ignored the Crown's omnipresent obligation to prove the defendant's guilt beyond a reasonable doubt.
There were questions asked about visible injuries the night of the basement incident, but ultimately I have no concern about, for example, Michael Bryant's failure to observe injuries that night, as by the end of the trial there was really no issue whatsoever about there having been an application of significant physical force to Ms. Bryant's face by Mr. Bryant. The issue was not whether or not he hit her, but rather how it happened and whether or not the Crown could prove beyond a reasonable doubt that whatever happened was criminal in nature.
I found Ms. Pendlebury to be a measured and balanced witness. It is not every day that a witness testifies to having felt ashamed of their behaviour, perhaps even less so for a senior-rank police officer, but that is what Ms. Pendlebury did in the context of her having given Ms. Bryant the weekend to report the kitchen incident on her own. She explained her deliberation (including consultation with Mr. Bryant's brother) and her reasoning (namely, to allow Ms. Bryant to have a sense of control over her own life), but admitted to having lost sleep over it and volunteered that, "a small part of me didn’t want to be the person calling", out of fear of being labeled as part of the rat culture (i.e. the perfidious culture that can see police officers shunned for reporting or confirming misconduct by other police officers, which is ironically a culture shared with the criminal element whom the police are supposed to suppress). I do not doubt that she has no fondness for Mr. Bryant, but I do not believe that lack of fondness undermined her evidence at all.
In any event, as with the basement incident, none of the witnesses other than Mr. and Ms. Bryant has direct knowledge of the details of the kitchen incident and again there is no dispute about something happening in the kitchen, only if it was criminal in nature. Ms. Pendlebury's evidence related only to the circumstances and timing of reporting and to the issue of there being an oblique or malicious motive for the timing and laying of the basement charge. Ultimately, while Mr. Bryant may believe that to be the case, I see no rational foundation for any grand or petty conspiracy lurking in the background.
It has been said that a criminal trial is a search for the truth, but that is only part true. A criminal trial is actually an exercise in determining, not what happened, but rather if one party, the Crown, has proved their understanding of the truth beyond a reasonable doubt. A criminal trial does not determine if the Crown's version is true or if the defence version is true, only if the Crown has proved that its version is true to a very, very high standard.
In this case I have heard from two central witnesses and four more peripheral witnesses. In relation to the peripheral witnesses, there was no dispute over the accuracy of Constable Ali's evidence of the night he went to Ms. Bryant's home and asked her about domestic violence. The evidence of Alan Bryant was effectively unchallenged and could be taken to undermine the Crown's case against his son, subject, of course to the fact that some domestic violence victims do conceal and minimize the behaviour of their partners, even where there has been domestic violence. Michael Bryant's evidence was limited but generally falls as neutral on the scale, although where there was detail lacking in his evidence that was made out in Ms. Bryant's evidence I find her generally to be more reliable. I have commented already on Ms. Pendlebury's reliability, subject of course to the fact that she has no direct evidence of either alleged assault.
There is, in short, no evidence external to Mr. Bryant or Ms. Bryant that really shifts the needle dramatically on what happened between them on the two dates in question. A common sense view of things makes it seem very clear that Michael Bryant would not have gotten out of bed and driven over an hour each way to attend the Bryant home in Caledon unless there was a serious issue, although that does not necessarily establish the precise details or degree of escalation or even criminality that would call for such a response. Even in purely verbal domestic confrontations, it is often necessary for a third party to intervene to lower the temperature in the room and to send the disputing parties to their corners to cool down and to avoid escalation, so Michael Bryant's attendance is not determinative of what happened between Mr. and Ms. Bryant in December, 2021. Likewise, in the context of domestic violence, the fact that Ms. Bryant denied to Constable Ali and to the arbitration counsellor that there had been any domestic violence is not determinative of anything; experience shows that some complainants lie about the existence or extent of domestic violence and some lie in order to deny or diminish its existence.
In a very real sense, therefore, this case comes down to a contest between Ms. Bryant's narrative and Mr. Bryant's. The eye injury in 2021 and the throwing of the can in 2024 do not seem to be in serious dispute, but the issue of causation is very much contested. It is contested in the context of a relationship that had been at best dysfunctional for several years and at some point, certainly from the time of the Lisa affair at a minimum, toxic and probably unsalvageable. It is contested against a backdrop of bitter family court litigation, where there have been criminal charges and counter-charges and police disciplinary allegations and counter-allegations. Only two people on the planet know absolutely what happened on each occasion and their "knowledge" may itself be compromised by years of conflict, self-interest and coloured perception.
There is, of course, no requirement for corroboration in Canadian criminal law. It is entirely open to a trier of fact in a criminal case to reject a defendant's denials and to convict him or her solely because they find the accuser's testimony to be so compelling that it entirely overcomes the defendant's denials and entirely eradicates reasonable doubt about the defendant's guilt. There will obviously also be cases where the defendant's guilt is made out by a combination of the accuser's evidence and the evidence of other witnesses and/or scientific evidence, but this case is very much a he said/she said case. Even the text message exchanges are largely open to multiple interpretations.
In the present case, both Mr. Bryant and Ms. Bryant spoke at times, albeit briefly, of the positive characteristics of the other, which is to each of their credit. But their versions of both events, and indeed of the general interplay between them within the marriage, were as different as chalk and cheese, other than that they both knew it was not working, even if they chose to stick it out and perhaps make it work. Ms. Bryant's description of events was detailed and thorough, and, recognizing the limitations of demeanour evidence, came across as genuine and heartfelt. She was not argumentative and was not materially caught out in cross-examination.
But I could take the previous sentence and substitute "Mr. Bryant" for "Ms. Bryant" and "he" for "she" because the same description of her testimony could equally apply to his.
When I look at the two incidents and review all of the evidence before me, starting with the more recent in time, is it reasonably possible that Mr. Bryant lost his cool and maliciously threw the third beer can at Ms. Bryant, intending to hit her as an expression of his anger? On Ms. Bryant's evidence, that is certainly reasonably possible. But on Mr. Bryant's evidence it is also reasonably possible that his third use of a beer can projectile that day as an expression of anger or disgust or frustration or whatever accidentally came into contact with Ms. Bryant.
As for the basement incident in December, 2021 the narratives are even more distant from each other, although they again have common elements. Here again, however, both her description of the confrontation followed by the chase, the pinning down and his single punch to her eye and his description of the confrontation, followed by his attempted avoidance of the conflict, her pursuit and what may have been an instinctive elbow-jerk, accidental reaction connecting with her eye are reasonably plausible. (Neither could I say that a self-defence argument would necessarily fail given the short duration, close quarters and single blow involved in Mr. Bryant's version of what happened).
If this were a civil trial I would be required to express an opinion on which of the two scenarios is more likely because the burden in a civil trial is so dramatically different than the burden in a criminal prosecution. However, these are criminal charges and the question is not which version is more plausible, but rather whether or not the Crown has proved its version beyond a reasonable doubt. On the evidence before me I cannot be satisfied the Crown has met that burden and I find Mr. Bryant not guilty on both charges.
Fergus ODonnell J.