R. v. Hartling
Court Information No.: 632 Ontario Court of Justice Sault Ste. Marie
Parties
Between:
Her Majesty the Queen
— AND —
Gordon Hartling
Court Details
Before: Justice John Kukurin
Heard on:
- February 7, 8, 2013
- July 2, 2013
- November 19, 2013
- December 4, 9, 17, 2013
- May 7, 8, 2014
- July 7, 2014
Reasons for Judgment released: August 13, 2014
Counsel:
- David Kirk, for the Crown
- Stacy Tijerina, for the Accused, Gordon Hartling
REASONS FOR JUDGMENT
KUKURIN J.
Introduction and Charges
[1] These are the Reasons for my decision in this case. The accused is charged with five offences, all arising from the same set of circumstances. These include two charges of aggravated assault [s.268(1)] against each of two individual victims, one charge of resisting arrest [s.129(a)], and two charges of breach of probation [s.733.1(1)].
[2] The two victims of the alleged aggravated assaults are the mother of the accused, and the boyfriend of the mother of the accused. All of the charges arise from an incident that took place on March 8, 2012 in the home of the mother in the community of Garden River which is a fifteen minute drive from Sault Ste. Marie. For ease of reference, I will refer to the accused as the "son", his mother as the "mother", and the mother's boyfriend as the "boyfriend". In March 2012, the son was age 41, the mother age 64 and the boyfriend age 62.
Crown's Narrative
[3] The narrative presented in the evidence of the crown begins with the son, who resides in Sudbury, visiting his mother, staying in her guest room, and doing odd chores and repairs for her during his visit. At some point, the son received some money. The mother telephoned her boyfriend, who lived five doors away from her, and asked him to come over for a drink. He did so. The son and the boyfriend then got a ride to the liquor store in the nearby community of Echo Bay where the son bought five bottles of Canadian sherry wine. He and the boyfriend returned to the mother's home and all three began drinking the wine in the living room, listening to music videos. This was sometime in the afternoon of March 8, 2012.
[4] Later in the day, as it was getting on to dusk, by which time all three were, in the words of the boyfriend, "pretty well toasted", a verbal disagreement or argument began between the son and the mother. The subject of this was "Sherri" the sister of the son and the daughter of the mother. The son apparently felt that the mother showed favouritism to his sister over him. He may also have suggested that his sister was an alcoholic. The mother disagreed with his comments, and became upset to the point that she wanted to hear no more and expressed her intention to go to her bedroom. At this point, the son jumped up and punched the mother twice in the back of the head with his fist. The boyfriend, on seeing this, intervened to restrain the son from any further assault on the mother. The boyfriend in turn was set upon by the son who struck him, according to the boyfriend, about twenty times with his fists and, after the boyfriend had fallen to the floor, kicked the boyfriend many times.
[5] As the boyfriend was being assailed and before he was rendered unconscious, he yelled to the mother to go get help. The mother admitted seeing the boyfriend on the floor in the living room and recalled him telling her to call for help. The mother went to her bedroom where she had a landline (corded) telephone. She picked up the telephone ostensibly to call the police. However, she does not recall talking to anyone. Her next memory is being in the hospital with a doctor and a nurse present. At that point she had a multitude of injuries.
[6] Someone did apparently contact 911 as the 911 dispatcher communicated with the emergency ambulance responders on duty, perhaps also with the fire station, and with the police. As a result, two ambulance attendants, two firemen and an off duty Anishnabek Police Service sergeant attended at the mother's home sometime after 7:00 pm that evening. Later on, three Ontario Provincial Police officers also attended the home. One of the firemen first responders, shortly after arriving at the home, recalled seeing a male walk from the mother's bedroom across the hallway to another bedroom. The person located in this second bedroom was the son. Only he and the mother were still in the home when the first responders arrived. The boyfriend had, at some point, regained consciousness, had called out for the mother, and when he received no response, he left the home, either through the front door or the back door (he was confused about which), and made his way back to his own residence. He did not contact the police.
[7] The first responders attended to the mother's injuries. During this time, she made a number of statements or utterances about what had happened. One fireman had stationed himself at the door of the bedroom where the son was found on entry to the home. The police sergeant arrived shortly before the mother was loaded into the ambulance and had a chance for a brief conversation with the mother. The sergeant then went to the bedroom where the son was located. She asked him some questions. He made some statements. She then arrested him. There were difficulties removing him from the bedroom. By this time, several OPP officers had arrived on the scene. The son continued to oppose efforts to remove him. Eventually, he was removed from the home.
[8] Photographs were taken of the scene the following day. Blood samples were taken and later analyzed for DNA. The mother's injuries were identified both at the scene by the attending paramedic, and later at the hospital where she remained as a patient for well over a month. The mother listed her injuries to include a broken leg (broken ankle), left broken ring finger, left orbital bones all broken into small pieces, portions of skin displaced and/or folded over, abrasions over the left eyebrow, nose fractured in four places, and nose cartilage shifted and/or disintegrated. Police photos were taken of the mother's injuries. In addition to these injuries, the mother had both a stroke and a heart attack while she was hospitalized. She also contracted pneumonia, likely from an endotracheal tube inserted while she was still in hospital. The boyfriend described his injuries to include multiple black and blue bruises, sore ribs, shoulder almost dislocated, very sore jaw, and sore left leg in the thigh area.
Defence Narrative
[9] The account of what the son claims really happened was presented in the evidence for the defence. No issue was taken with the events leading up to the incident that took place in the living room after the three participants had been drinking sherry for some time. That there was a disagreement or an argument and an altercation was not disputed. However, it started between the mother and the boyfriend, not the mother and her son. The mother made some comments that her daughter Sherri felt uncomfortable coming to visit her, that Sherri felt uneasy because the boyfriend had taken a liking to her, would follow her with his eyes, and was watching her all of the time. This upset the boyfriend who said that these things were all untrue. The mother slapped the boyfriend. He slapped her back, hard enough that she wheeled and fell against a chrome kitchen chair. It moved and the mother fell even further hitting her face on the base of the dining room table. It was contact with the chair and/or the table base that caused the mother's facial injuries. The mother could not say with any certainty but speculated that when she fell, she twisted her ankle and this, together with her pre-existing brittle bones, is what caused the ankle fracture.
[10] The son, on seeing the boyfriend slap his mother jumped in, punched the boyfriend and told him to leave. He didn't want to leave and a scuffle ensued with the son and the boyfriend rolling on the floor. The mother had gotten up, was somewhat disoriented as well as angry and upset. She snatched a nail file that was at hand and was poking at the son and boyfriend with it to try to get them apart. She cannot recall how they became disentangled. She does remember that the son noted that she was bleeding, that he helped her to her bedroom and that he helped her onto her bed. According to the mother, it was the son who called 911 despite the mother's request that he not involve the police. In fact, she pulled the telephone line out of the wall receptacle, although too late as he had already made the call. She was adamant that the only person that struck her that day was the boyfriend when he slapped her. Beyond this, she cannot recall events of that evening as she drifted in and out of consciousness. She barely remembers the ambulance and does not remember speaking with the first responders or the police sergeant who attended at her home. Her next recollection was when she was in the hospital.
Irreconcilable Accounts
[11] These are two very different accounts of what happened on the late afternoon and early evening of March 8, 2012. These stories are irreconcilable. How these came to be presented to the court is not only of interest but is relevant to any finding of guilt on the charges.
[12] There were only three persons present during the incident which took place on March 8, 2012. The mother and the boyfriend testified as witnesses for the crown in February 2013. The mother, however, also testified for the defence. This was on May 7, 2014, twenty six months after the incident at her home. The son did not testify at any time in the trial. The boyfriend's evidence at trial was not inconsistent with the testimony that the mother gave as a crown witness. The source of the two versions of events was the mother. Her story changed from when she testified as a crown witness on February 8, 2013 to when she testified for the defence on May 7, 2014. The mother's later story is totally inconsistent with the testimony of the boyfriend. It is totally inconsistent with her own earlier testimony.
Legal Standard and Defence Argument
[13] The onus rests with the crown to prove the charges beyond a reasonable doubt. This it is required to do with admissible evidence. The argument of the defence is that the mother's later testimony is to be preferred as a more accurate reflection of what actually took place. Even if it is not accepted as such, it creates, or should create, sufficient doubt as to whether the son did what the crown alleges he did in the charges he is facing. This doubt should work in favour of the son as an accused person and he should be acquitted. The criminal standard of proof is proof beyond a reasonable doubt.
[14] The crown's contention is that the mother's testimony in May 2014 should be completely rejected by the court. The crown tenders a plausible argument of why this second narrative of events came to be, namely, because the mother does not want her son to be incarcerated should he be found guilty of the charges. A custodial sentence is more than a possibility in the event of conviction, because of the seriousness of the charges, and this appears to be acknowledged by both crown and defence. The mother and the boyfriend had broken off their relationship shortly before she testified for the defence. The crown intimated that this was a factor that prompted her surprising and very different testimony in May 2014. Apart from this motive, however, the crown asserts that this later testimony of the mother should not be believed for the more important reason that it is inconsistent with virtually all of the other evidence presented in this case, including her own given as a crown witness. Finally, the crown argues that this "out of the blue" account of what took place is far fetched and implausible, and cannot even pass the test of internal consistency.
Charges of Breach of Probation
[15] The son is facing five charges. The two charges of aggravated assault are the most serious. There are three other charges that are before the court for a judicial determination. The disparate evidence of the mother does not really affect these three lesser charges in any material way. Accordingly, I am inclined to deal with these at this point, if for no other reason than to clear the field for a consideration of the more serious charges.
[16] The son was placed on probation by this court in Sudbury on January 5, 2012. That probation order had a term of three years. It contained a statutory condition to keep the peace and be of good behaviour, and also a further condition to abstain absolutely from the consumption of alcohol. It is abundantly clear from the evidence of just about everyone who attended the home of the mother on March 8, 2012 that the son not only consumed alcohol but consumed a great deal of it. By breaching this condition, he was not being of good behaviour and therefore breached the statutory condition of his probation order as well. There was no contrary evidence presented. I find him guilty on both of these charges.
Charge of Resisting Arrest
[17] The son is also charged with an offence under [s.129(a)], specifically of resisting Sergeant Bell, a peace officer, in the execution of her duties. The evidence relating to this charge was presented by Sgt. Bell in her trial testimony. She had just arrested the son. Two OPP officers and a Batchewana police officer had arrived. The intention was to transport the son to the OPP station. He complied with a request to turn around so that he could be handcuffed. On being searched, however, he began resisting. He stiffened up, ramrod straight, and refused to walk toward the door. He was yelling and swearing, being rude and calling Sgt Bell a bitch and telling her not to touch him. It took the efforts of two other officers to get him out the door where he and they both fell, partly due to icy conditions and partly due to his struggling and his resistance to their direction. Eventually he did comply and was taken to the OPP station.
[18] There was some corroboration of this from Garden River First Nation Fireman R. Nolan who had stationed himself as a precaution at the door of the guest bedroom occupied by the son. Fireman Nolan testified that the son was resisting the police and swearing, and that three of the officers were on top of him at one point holding him down.
[19] There was no defence evidence to contradict any of the foregoing. The argument made was that the son was dragged out of the house, shirtless and shoeless, in March weather which was quite cold at that time of the evening. I am unsure of the intent of this submission. It neither contradicts nor excuses the behaviour of the son as recounted by Sgt. Bell and Fireman Nolan, and it does not cause me to discount any of their evidence. I am more than satisfied that the crown has proven beyond a reasonable doubt that the son resisted Sgt. Bell in the execution of her duties as a peace officer. I find him guilty of this offence.
Charge of Aggravated Assault on the Boyfriend
[20] The charge of aggravated assault on the boyfriend is also less contentious from an evidentiary point of view. No one has denied that the son struck the boyfriend. Both the boyfriend and the mother testified that the son did strike the boyfriend. The mother's evidence in February 2013 did not recount any observation by the mother of the son and the boyfriend in any kind of physical contact. Her evidence, at that time, was that she had voiced her intention to go to bed, and that her next observation was of the boyfriend lying on the floor of the living room in front of the entertainment unit, telling her to call the cops. According to her, there was nobody else around.
[21] The mother's evidence in May 2014 did describe physical contact between her son and her boyfriend. She testified that the son punched the boyfriend after the boyfriend had slapped her, and that the son told the boyfriend to leave. He refused, and somehow a scuffle ensued between the son and the boyfriend, with both of them rolling on the floor. She was unable to recall how this physical altercation ended.
[22] The main evidence as to the charge of aggravated assault on the boyfriend came from the boyfriend himself in his trial testimony. He confirms that he was punched by the son, not once as might be inferred from the mother's testimony as a defence witness, but about twenty times. Moreover, the boyfriend said that the son kicked him when he fell to the floor. According to the boyfriend, he was kicked many times; he wasn't sure how many.
[23] There is nothing to contradict this evidence. There is no evidence given by anyone else who was present at the time except by the mother. While she does not give details of what she observed of the two combatants, she clearly recounts that her son punched her boyfriend and that they were in a physical scuffle on the floor.
Analysis of Credibility Regarding the Boyfriend
[24] In dealing with the disparity in the descriptions of the mother and the boyfriend, there are several reasons why the account of the boyfriend as to what the son did to him is to be preferred:
(a) The boyfriend was not simply an observer as was the mother. He was physically and intimately involved in the altercation and able to feel the blows that he received and discern whether they were punches or kicks.
(b) The mother described this physical contact only in her May 2014 testimony. However, in that same testimony, she said that, before any contact between her son and her boyfriend, she had been slapped hard by the boyfriend, which sent her wheeling around, falling, and causing her to strike her head on a chair and on the base of a dining room table. Her speculation was that she also broke her ankle in this fall. She herself admits to being disoriented when she got up. Shortly thereafter, she was drifting in and out of consciousness. This is not a physical or mental state which inspires any confidence in her being able to make and remember specific observations of a "scuffle" she was witnessing at the time.
(c) The mother's account of the fight was superficial and lacked detail. She used the words "scuffle" or "scuffling" to describe what was taking place. She also described the son and the boyfriend as "rolling on the floor". These words are somewhat generic and suggest that what was taking place was something of a wrestling match. Her choice of words and the description of what she was observing does not accord well with the description the boyfriend gave of his injuries, or with the police photographs of these injuries taken shortly afterwards. The mother could give no account of how this fight ended, a failure that was unexplained by her.
[25] Accordingly, I am more inclined to accept the boyfriend's version of the physical altercation between the son and himself as being more accurate in terms of what actually happened between them. I accept his evidence with a more than a grain of salt, however, since he admits that he was drunk at the time, and that his perceptions and memory of events may, as a result thereof, not be the most reliable. There are, however, enough indicia of reliability in the evidence to conclude that he was both punched and kicked by the son multiple times which resulted in the injuries he described and which were graphically portrayed in police photographs. That he was bleeding as a result of the son's assault was confirmed by a forensic analysis of a swab taken from a pool of dried blood at the spot where the evidence indicates his body lay after the fight.
Distinction Between Assault and Aggravated Assault
[26] I am satisfied that the son assaulted the boyfriend. However, the son is not charged only with assault. He is charged with aggravated assault. The offence of aggravated assault is created by [section 268(1) of the Criminal Code]. For the crown to successfully prosecute a charge such as this, it must provide evidence beyond a reasonable doubt that the boyfriend was wounded, maimed, disfigured or that his life was endangered.
[27] I am not satisfied with the crown's evidence that the boyfriend was wounded, maimed, or disfigured by the son. Nor am I convinced that his life was endangered by actions of the son. The boyfriend was rendered unconscious. He could not have been unconscious for very long as he left the mother's home before the first responders had arrived. He left the home without help from anyone. He found his way to his own home also without help from anyone. He did bleed but the physical evidence does not show that his bleeding was extensive. He described his injuries in terms of multiple bruising, sore ribs, a sore leg, a shoulder as well as his jaw that were "almost" dislocated, a gash on his left eyebrow and loss of clumps of hair. There was no medical evidence tendered with respect to his injuries.
Hierarchy of Assault Offences
[28] There appears to be a hierarchy in charges of assault in our Criminal Code. Lesser assault crimes can be included offences in greater assault crimes. The offence of aggravated assault is considerably higher on the scale of seriousness or gravity of the offence than are offences of [assault causing bodily harm [s.267(b)]] or [simple assault [s.265]]. This is readily apparent from a comparison of the potential consequences for a conviction on these offences. If proceeded with by indictment, the maximum imprisonment for simple assault is five years, for assault causing bodily harm is ten years, and for aggravated assault is fourteen years.
[29] In the present case, I am prepared to find the son not guilty on the charge of aggravated assault on the boyfriend, but guilty of an included assault offence. The question is: Of which lesser assault offence is the son guilty? While it might be argued that he should get the benefit of the lesser or the least of the included offences, it seems more appropriate that the evidence be considered to determine whether it supports a finding of guilt on the greater of the included offences. If it does so, why should he not be found guilty of it?
The foundation for the offence of assault causing bodily harm is the causal relationship of the assault to the bodily harm occasioned thereby. Bodily harm is not simply a general description for purposes of s.267(b). "Bodily harm" is a term specifically defined in the Code:
S.2 "bodily harm" means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.
[30] It is fairly safe to conclude that the boyfriend suffered both hurt and injury at the hands of the son. It is equally reasonable to conclude that these injuries interfered with his comfort. By the time of his trial testimony (eleven months later), he was still taking medication for pain in his shoulder and neck area. His jaw was, in his words "almost disconnected" and was sore for about a month following the incident. He still has a scar above his eye although barely visible. I conclude that his hurt and his injuries were neither trifling nor transient. This was not an assault simpliciter. He was beaten up pretty badly by a man twenty years younger who caused him to suffer "bodily harm". On the charge of aggravated assault on the boyfriend, I find the son not guilty, but guilty of the included lesser offence of assault causing bodily harm pursuant to s.267(b).
Charge of Aggravated Assault on the Mother
Nature of Injuries
[31] This leaves the charge of aggravated assault against the mother. This charge is much more significant primarily because of the magnitude of the injuries to the mother. There can be little question that the quantity and quality of these injuries put them within the spectrum of those that are set out specifically in [s.268(1) of the Criminal Code]. This subsection lists the results of the actions of a perpetrator of aggravated assault disjunctively. It is not necessary that such actions wound, maim, disfigure and endanger the life of a victim. It is sufficient if such actions result in any one of these.
[32] In this case, the mother suffered many wounds. A wound is an injury to living tissue, especially as a result of violence. Leg, ankle, finger, nose and orbital bone fractures lead this list. The loss of the mother's use of her limb falls within the classic definition of maiming. These are followed closely by cuts and abrasions to the mother's skin. The damage to her facial skin was sufficiently intensive to warrant cosmetic surgery to correct, a surgery that could not be done because of complications resulting from other health related issues that the mother was undergoing. This skin injury falls within the definition of disfigurement. Did what happened to the mother endanger her life? In my view, it did. According to her own testimony, she was unconscious in the hospital for quite a long time, although not necessarily continuously. She was in the ICU (intensive care unit) for much of her stay. She suffered both a heart attack and a stroke while in hospital and contracted a pneumonia. All of these things could have led to fatality. Are these too remote as consequences of what she suffered on the evening of March 8, 2012? I don't think so. But for what befell her that day, she would have had none of these injuries, would not have been hospitalized, would not have been unconscious, and would not likely have suffered either a heart attack or stroke.
Central Issue: Perpetrator Identity
[33] The central issue in this charge is whether it was the son who wounded, maimed, and disfigured the mother and endangered her life. This determination raises an equally important issue, namely, the credibility of the mother's evidence, and necessarily, the credibility of the evidence of the boyfriend.
Approach to Credibility Analysis
[34] Crown counsel points out that the court can accept all, some, or none of the evidence of any witness. In this case, where the mother, the main victim involved, testified as both crown and defence witness, and gave two accounts that are irreconcilable, one with the other, the question of what to accept and what to reject is put front and centre to the court. When it comes down to the central question of whether the son assaulted the mother, there can be no equivocation. Either he did or he did not.
Logical Analysis: Assuming No Assault by Son
[35] How does the court approach the evidence to make this determination? Perhaps the most logical way is to adopt the premise that he did not assault his mother. That necessarily raises the question of where and how she received all of the injuries that she herself acknowledges that she received. If her son didn't assault her, the only other possibility was that the boyfriend did so. In fact, she says he did slap her, presumably in the face. This led to her falling and striking her face on a chair and/or the base of a dining room table. It is implausible that a slap to the face by itself, even a hard slap, would cause the type and extent of facial injuries that the mother claims to have suffered. According to the mother's account as a defence witness, by far the main cause of all of the injuries she suffered was her collision with the chair and the base of the table. This means that the location of the event that caused these injuries was in the dining room area. This is evident from the placement of the table in this area as depicted in Exhibit 3, and in particular Photo 0049.
Forensic Evidence Contradicts Defence Narrative
[36] It is clear from the mother's later testimony as a defence witness that she was bleeding after striking the table base. In fact, she said that she was bleeding "profusely". She claims that her son noted that she was bleeding, and commented on this when he first realized it. Later, while in the bedroom, she says that it was her son who wanted to call 911 because she was still bleeding. The mother stated that she was hit only once, a slap by the boyfriend. No one else struck her. The only inference to be made from this is that the bleeding was caused by her head striking the base of the table or the chair.
[37] The forensic evidence does not support this at all. If what the mother recounts as a defence witness is true, there should have been copious amounts of her blood on the base of the table, on the floor in the dining room near the table, and down the hallway from the dining room area to her bedroom doorway. There was no report of any blood, much less her blood, in any of these locations. There were, however, in the forensic and first responders' evidence, reports of quite a bit of blood on the mother, on her clothing, on her bedroom walls and on bedding in her bedroom. It is inconceivable that the mother was bleeding in the dining room or living room area with absolutely none of her blood found there. That she was bleeding while still there is clear from her own evidence that her son commented to her that she was bleeding and that, after noting this, he helped her down the hallway to her bedroom.
[38] In addition to this, it is clear that after she struck her face on the chair and/or table base, she was not only witnessing a "scuffle" between son and boyfriend which was clearly taking place in the living room area, she was actively engaging both verbally and physically in trying to separate these two individuals, who were "rolling on the floor", by poking them with a nail file. That none of her blood was found in the living room area where she was involved in the altercation, albeit peripherally, is unlikely if what she says happened is true. This is particularly so if she was bleeding profusely.
Location and Layout Inconsistencies
[39] There is also an issue with the location of certain events. A layout sketch of the mother's floor plan and main furnishing locations (Exhibit 5) was shown to both mother and boyfriend during their testimonies. Neither gave any indication that the sketch was not representative of the actual layout. The photographs in Exhibit 3 depict the location of the living room furniture and the dining room furniture. This evidence has to be taken in conjunction with the testimony of the witnesses. The photos were taken on March 9, 2012, the day after the incident. The viva voce evidence does not place these pieces of furniture on the day of the incident in any different location or configuration. The mother's defence testimony indicates that she was sitting in a recliner chair in the northeast corner of the living room, and that the son and boyfriend were seated on the sofa along the north wall of the living room. This contradicts the boyfriend's evidence that the son was seated in the chair and that the boyfriend and the mother were both seated on the sofa. Regardless of which version is correct, the fact remains that if the mother's story is to be believed, the slap by the boyfriend would have propelled her over the coffee table which was in front of the sofa, across the living room, across the hallway and into the dining room area where the table was located. This does not make much sense if, as the mother says, she was seated in the chair. She claims she stood up to slap the boyfriend who was on the sofa. He slapped her back. Both slaps were very quick. If this is what happened, she should have been propelled in the direction opposite to the dining room and the table. Her statement that these slaps took place "over near the fridge" makes little sense when juxtaposed to her other evidence of what happened.
Blood Spatter Evidence
[40] The forensic evidence and the photographic evidence do not lead to an inevitable conclusion that the son beat the mother. However, what they do establish is that virtually all of the mother's bleeding was limited to the area of her bedroom. The only persons in that bedroom at the time when the mother would have been bleeding were the mother and the son. Circumstantially, the placement of the son in this location is important, particularly if there is no evidence of the mother bleeding before she entered this bedroom (in circumstances where, based on her story, there should have been plenty of bleeding). That he was in this bedroom is confirmed by the mother, who claims he helped her get there and put her on her bed. It is also a reasonable inference from the evidence of fireman Nolan of a male walking from the mother's bedroom to the guest bedroom, a male whom he later identified as the son.
[41] The blood splatter report also does not link the son as the perpetrator of an assault on the mother. However, what it does do is to provide the opinion of a blood stain or blood spatter analysis expert (Staff Sergeant Hlady) as to observations made and recorded in photos taken in the bedroom of the mother. The most critical of these opinions is with respect to what was designated as Area F. This area depicted blood stains on the wall at about mattress level, the size, shape and distribution of which were what the expert indicated he typically saw from "an assault or a beating at this location". He explained that this pattern is as a result of a force applied to a blood source.
[42] Could an accident have caused these kinds of stains? Perhaps so, if an accident in that location had caused some force to be applied to the mother, the only person who could conceivably have been the blood source of these stains. But there is no evidence whatsoever of any "accident" taking place in the mother's bedroom. What is important in this evidence is that the application of the force to the mother took place in her bedroom. This evidence does not support the mother's story that the force applied to her was the chair and/or table base striking her head in the dining room area.
Internal Inconsistencies in Defence Narrative
[43] Other aspects of the mother's account of events given by her as a defence witness create some discordancy. Her story does not at all explain how her leg was broken. It speculates that her ankle was broken accidentally when she fell and struck her head on the table base. She attributes part of this fracture to her pre-existing condition of brittle bones. These are not minor injuries. She described the ankle fracture as her ankle "broken in half". These are very debilitating and normally result in significant impairment to mobility. It is surprising then, that the mother, notwithstanding these fractures, was able to get up, move over to the living room area where the son and boyfriend were rolling on the floor, and was trying to separate them by jabbing them with a nail clipper. It is even more surprising that she was able to stand and move, even with the help of her son, down the hallway into her bedroom.
[44] Perhaps the most dissonance comes in the mother's portrayal of her own state of mind as discerned from her evidence given as a defence witness. She stated that when she had gotten up after striking her head on the table base, she was disoriented, but she was also angry and embarrassed lest "this" should come out. By "this", I gather she meant not just the inappropriate conduct that she claimed the boyfriend had directed at her daughter, but also the altercation that had involved herself, the boyfriend and the son which arose from a dispute over the truth of whether such alleged conduct had taken place. She had sufficient presence of mind to be aware of the genesis of the brawl and the potential embarrassment it might generate. She had sufficient awareness of the "scuffle" as she tried to separate the son and the boyfriend. She was aware of the potentially embarrassing consequences should a call be made to 911 for an ambulance. She was so sensitive to this that she pulled the telephone cord out of the wall receptacle to prevent such call being made. Yet in the same testimony, she says she drifted in and out of consciousness. She stated that she could barely remember an ambulance. All of this was after the point in time when she says her injuries were sustained. Was she lucid and aware, or was she disoriented and mentally adrift? Her evidence suggests she was both. It is difficult to reconcile her evidence of what she says her state of mind actually was.
Paramedic Evidence of Mother's Condition
[45] There was considerable evidence from the paramedic T. Onofrio of his observations of the mother and of his assessment of her mental state. He was aware that she had been drinking both by her own admission to him, and because she was slurring her words. Nevertheless, he was able to have a reasonably appropriate conversation with her. She was able to properly identify herself, her date of birth and give her correct address. She verbally rejected a cervical collar or spine board that he was considering using to stabilize her spine. She explained that she had retired and had had a stroke in the past. Paramedic Onofrio concluded that the mother was totally aware even though her speech was not normal.
[46] She gave considerable information about what had happened, and repeated this information over and over again while she was being assessed and prepared for transport by ambulance to the hospital. The information recounted by her was to the effect that her son had initially hit her in the living room, that she had been hit multiple times by him, that she had tried to call the police, and that the son had ripped out the phone. She identified her son as the person who had beaten her in her brief conversation with Sergeant Bell just before she was taken out of her home in a gurney. She never once mentioned the boyfriend as the perpetrator of any physical assault on her while she was being cared for by the paramedics. In fact, in her testimony as a crown witness, she stated quite categorically that her boyfriend had "… never, ever even raised a hand to me" and responded to the suggestion that it was the boyfriend that hit her "Yes, I can disagree with you. There is no way he could have hit me."
Mother's Earlier Testimony as Crown Witness
[47] Almost a year after the date of the alleged offences, when she testified as a crown witness, it is clear from her words that she believed that it was her son who had beaten her and caused her injuries. "I love my son. I can't believe he did that to his mother"
Rejection of Defence Testimony
[48] I reject the version of events of the evening of March 8, 2012 given by the mother in her testimony as a defence witness on May 7, 2014. This version is internally inconsistent, is contradicted by testimony of the boyfriend, is even contradicted by the mother's own testimony given as a crown witness over a year earlier, on February 8, 2013, and is incongruent with both the physical and forensic evidence of the crown's police witnesses. The testimonies of the first responders and the police sergeant of their own observations and of what the mother uttered as to what had transpired, stand in stark contrast to the mother's version of events recounted in her testimony as a defence witness. The mother's later version of events has no air of reality. It raises obvious questions that remained unanswered.
Motive for Changed Testimony
[49] I can understand why the mother's testimony changed. Her motive is fairly clear from statements made by her to others as well as to the court. She realized, even on the evening that she suffered her injuries, that her son was in jeopardy of serious trouble with the law. Her statements, initially inculpating him, changed even back then. She referred to him as her "poor, baby boy" and that she didn't want "her poor baby boy to get into trouble". She realized that her paramedic attender had to report to the police, and she stated that she was "not saying anything else". She confirmed in her sworn testimony that she did not want her son charged. She loves her son.
[50] The mother's problem is that her defence witness testimony is so divergent from just about all other evidence in this case. How does she explain this? Very unconvincingly as it turns out. She claims that after two years things have gradually been coming back in her memory. She believes she had amnesia after the incident of March 8, 2012. She says that her earlier belief as to events was because the boyfriend was telling her what had happened. However, she started getting little flashbacks, and these were not coinciding with what the boyfriend was telling her.
[51] This is not reflected in the totality of the evidence or in the history of the case. The reality is that the boyfriend did not have much opportunity to speak with the mother after the incident about what had happened. This is particularly so at the times she made statements inculpating her son to paramedic Onofrio and to Sergeant Bell, at which times he had had no opportunity at all. If these alleged flashbacks and recalls of memory were coming gradually, why did she not report these to the authorities? Why did she not mention these when she testified as a crown witness? More reasonable is the inference that, seeing the prospect of a custodial disposition for the son whom she loves closing in, she tells a story that exonerates him, or at least raises some doubt about his involvement.
Evidence Regarding the Son
[52] Although the son did not testify, there was evidence presented about the son during the trial. Some of this is relevant to the issue of whether he was the person who caused the injuries to his mother.
[53] Firstly, he was the only other person in the house when the first responders arrived. He was identified as the person found in the guest bedroom. A male person was seen moving from the mother's bedroom to the guest bedroom, and this was shortly before these first responders entered the home. The mother was in her bedroom. She was plainly perceivable as the victim of a severe trauma. The son was seen on his bed, and the recollection of fireman Nolan is that the son said that he had been there all night, a statement that was clearly not true.
[54] Secondly, the son made some statements, one to Sergeant Bell, and another to his mother. The first was in answer to her question to him inquiring about what had happened. His response was "It is what it is". This is not the response one would expect from a person who was aware of his mother's distressed condition and who cared for her. Nor was it the response of a son who had helped his mother after she was slapped by her boyfriend. His second utterance of note was a loudly repeated yell "Ma, nothing happened". This was after he was informed that he was under arrest for assault. Clearly, this statement was incongruous with the observable state of his mother and with the state of the home, and of her bedroom, in particular.
[55] Thirdly, there is evidence of the corded telephone with the broken cord found in his bedroom. This uncontradicted fact does not fit well at all with the mother's story told as a defence witness that it was she that pulled this telephone out of the wall receptacle to prevent her son from calling 911. It does, however, fit much better with her earlier story that she had gone to her bedroom in response to her boyfriend's request to "call the cops", had picked up this black elongated landline telephone, whose cord was plugged into a wall receptacle right beside her bedroom dresser - and that was the last that she can remember. How does that telephone find its way into the guest bedroom where the son was found by the first responders? The inference is that he was the one who took it from the mother and brought it to his bedroom.
Conclusion on Aggravated Assault Against Mother
[56] In summary, the crown has proven beyond any reasonable doubt that it was the accused, the son of the victim, his mother, who inflicted her injuries on her on the late afternoon and/or evening of March 8, 2012. I reject the evidence that the boyfriend physically slapped her, or that her injuries were caused by her falling into a chair and table base.
[57] As for the charge of aggravated assault as it relates to the accused's mother, the nature of the injuries sustained by the mother as a result of the physical attack on her by the accused are well within the definition of aggravated assault contained in [s.268(1) of the Criminal Code].
[58] Accordingly, I find the accused guilty of his count in the information.
Disposition
Released: August 13, 2014
Justice John Kukurin Ontario Court of Justice
Footnotes
[1] Who actually placed a call was never disclosed in the evidence of the crown. It is a clear inference that a call was made and that the information conveyed was that a woman had been beaten by her son.
[2] Written Reasons were released April 2, 2014 with respect to the admissibility of these statements or utterances as hearsay statements. The specifics of these statements are detailed in those Reasons, since reported at [2014] O.J. No. 3979.
[3] S. 129. Every one who
(a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
…. is guilty of
(d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(e) an offence punishable on summary conviction
[4] Report of Tara Brutzki, Forensic Scientist (Trial exhibit 15) which could not exclude the boyfriend as the source of this blood, and put the probability of the source being some other person unrelated to him at 1 in 52 quadrillion.
[5] S.268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
[6] There is also a possible lesser and included offence of assault with a weapon. However, the facts of this case do not indicate the use of any weapon by the son in his assault on the boyfriend.
[7] Webster's Encyclopedic Dictionary, Canadian Edition, Lexicon Publications Inc., 1988.
[8] Maim – to deprive of the full or partial use of a limb or limbs by inflicting an injury. Webster's (footnote 7)
[9] Transcript of Evidence February 8, 2013 Page 23 Lines 2 - 8
[10] Transcript of Evidence February 8, 2013 Page 13, Line 1 - 2
