Court File and Parties

Ontario Court of Justice

Date: 21 June 2017

Court File No.: Brampton 3111 998 15 1443

Between:

Her Majesty the Queen

— and —

Justin Jack

Before: Justice G. P. Renwick

Heard on: 15 and 16 June 2017

Reasons for Judgment released on: 21 June 2017

Counsel

R. Levan — counsel for the Crown

P. Erskine — counsel for the defendant Justin Jack

RENWICK J.:

INTRODUCTION

[1] Justin Jack is charged in a three count Information with committing assault and threatening to cause bodily harm to Shaneka Williams, his former intimate partner and the mother of their child.

[2] Before the trial began, the prosecutor observed that count one on the Information alleged an assault upon the same complainant, which was said to have occurred more than six months before the Information had been sworn. On a date prior to the start of the trial, the prosecution had indicated its desire to proceed against Mr. Jack by summary conviction procedure. Accordingly, the prosecutor indicated it would not proceed on the defective count, but instead, it sought to introduce the circumstances of the prior alleged assault, and another allegation which had occurred in Nova Scotia, pursuant to the principles enunciated in R. v. D.S.F..

[3] In a ruling made following a pre-trial application, I held that the prior discreditable conduct evidence was admissible in respect of the following:

i. The proposed evidence could fill in the narrative context within which to understand the relationship between the parties;

ii. The proposed evidence could demonstrate an on-going animus of the defendant towards the complainant, and it may be material in respect of the possible defences of consent, accident, or de minimis;

iii. The proposed evidence may explain any delay in reporting the incidents; and

iv. The proposed evidence could provide a marker to assist in the overall credibility assessment of the complainant.

[4] In these reasons I will discuss how the prior allegations have factored into this decision and the weight I have attributed to that evidence.

[5] The prosecutor also called the evidence of Sonya Oprel in addition to the testimony of the complainant. The defendant did not call any evidence in the proceedings.

ISSUES

[6] There were several issues raised during this trial:

i. Do the prior acts of discreditable conduct adduced by the prosecution assist in the determination of the issues;

ii. Has the prosecution proven the alleged assault beyond a reasonable doubt;

iii. Does the defence of de minimis or consent apply, or has the prosecution proven that these defences do not apply beyond a reasonable doubt; and

iv. Has the prosecution proven beyond a reasonable doubt that the defendant threatened to cause Ms. Williams bodily harm.

ANALYSIS

Do the prior acts of discreditable conduct adduced by the prosecution assist in the determination of the issues

[7] The complainant testified about her former relationship with the defendant. The complainant and the defendant had known each other for several years before they became intimate partners at some point prior to the autumn of 2012. By late 2012, the complainant had moved in with the defendant and in early 2013 they rented an apartment together. Around this time period, the complainant became pregnant with the defendant. The complainant testified that they dated each other exclusively, they spent Christmas with each other's family, they dated as a couple with other couples, they slept in the same bed, and they professed their love for each other during this period.

[8] For the most part, this evidence was not challenged in any significant way during the cross-examination of the complainant. I accept this part of the complainant's evidence as accurate and truthful on the part of the complainant.

[9] The complainant described an incident in February or March 2013 while she was pregnant, when she alleged that the defendant assaulted her during an argument in their apartment on Charolais Drive. The complainant admitted that she had accidentally struck the defendant's face with her open hand while attempting to move past the defendant, who had apparently cornered her in their bedroom during the argument.[^1] The defendant then poured part of his bottle of beer on the complainant's head and then forcefully grabbed the complainant's left arm and led her by the arm to sit on the bed, so that he could admonish her for her perceived disrespect. A few months after that incident and before the birth of their child, the complainant advised the defendant that she was going to live with her family in Nova Scotia, and she left Ontario later the same day.

[10] The complainant also testified about another alleged assault that took place about two years after the first allegation, while she was living in Nova Scotia. She described an argument while the defendant had been staying for a couple of weeks at her apartment. This disagreement involved some food that the defendant had cooked the night before. When the defendant returned to the apartment after work one day he questioned whether some of the food he had prepared was eaten or discarded. The complainant explained that she had simply moved the food from the cooking pan to a plastic container, but the defendant became upset, and when the complainant tried to walk away from him, he threw the food from the container in her face.[^2] At that point, the complainant attempted to get the defendant to leave the apartment but he insisted that he would not leave unless she called the police. The complainant obliged the defendant and called the police. The defendant left her apartment and ended up staying for a couple of weeks with a neighbour in the same building before returning to Ontario.

[11] In terms of the use of these prior incidents, they do provide some background information about the nature of the relationship between the defendant and the complainant. It appears that there was some history of disagreements that had escalated to the point of minor physical altercations involving the complainant at the hands of the defendant. In each case, there was an element of humiliation or degradation of the complainant by the defendant.

[12] However, I am mindful that I cannot use this finding to support an inference that it is more likely than not that the defendant committed the allegations with which he is charged, nor can this evidence be used to suggest that the defendant has a propensity to commit assaults or acts of humiliation upon the complainant, or that he is the type of person who would assault and threaten the complainant on the basis of his prior treatment of her. In the end, I am not prepared to give this evidence much weight, but I acknowledge that the history of the relationship included unpleasant moments.

[13] The prosecutor claimed that the prior discreditable conduct evidence presented a pattern of behaviour on the part of the defendant toward the complainant which was controlling, demeaning, aggressive, and represented his animus toward her. I am not prepared to accept the suggestion that these prior incidents show an on-going animus on the part of the defendant toward the complainant. Rather, I see these prior allegations as incidents where the complainant and the defendant were not getting along and things deteriorated to the point where the defendant resorted to inappropriate displays of anger and/or frustration which he physically acted upon, against the complainant. In each case, the incidents were brief in duration and the complainant sustained no physical injuries.

[14] The prosecution did not reiterate the earlier suggested possible use of this evidence to explain a delay in reporting the allegations before the Court and I do not find that the prior discreditable conduct evidence can be applied in that manner in this case.

[15] Do the earlier incidents assist the Court in the determination of the credibility of the complainant? The prosecution did not press this possible use in the closing address and I do not find that the prior incidents add much to the credibility assessment I must make in respect of the testimony of the complaint. If anything, these prior incidents provided counsel for the defendant with some appetizers before the main course of cross-examination, and counsel certainly consumed a significant portion of time on these incidents, but in the end, they provided few forensic nutrients to either the prosecution or the defendant.

Has the prosecution proven the alleged assault beyond a reasonable doubt

[16] The credibility of the complainant (or the lack thereof) cannot be overstated in terms of driving the result of this trial. Shaneka Williams was the main witness for the prosecution. Ms. Oprel's testimony provided some corroboration of incidental details, but it added very little to the overall credibility of the complainant. In the end, if I am not satisfied that the complainant has been truthful and accurate in her testimony in every material respect, I cannot be satisfied of the guilt of the defendant beyond a reasonable doubt and I will not hesitate to acquit the defendant of the charges before the Court.

The credibility of the complainant

[17] In considering the credibility of the complainant, I will consider the following areas:

• general character;
• motive to fabricate;
• evidential value; and
• presentation.

As well, I will consider the reliability of the complainant, in terms of the following:

• ability to observe; and
• memory.

[18] Shaneka Williams is 26 years old. She is the former intimate partner of the defendant and the mother of their child. There was no evidence presented about her current occupation or whether or not she has a criminal record. There was no discreditable conduct adduced respecting her character. There were no concerns raised that the complainant has a reputation for dishonesty or is otherwise not worthy of belief.

[19] The complainant had a possible motive to fabricate these allegations. The complainant admitted in cross-examination that she called the police about these allegations before she had begun family law proceedings to apply for sole custody of her daughter. However, I find that this potential motive to fabricate is reduced, if not eliminated altogether, by the fact that the family law proceedings terminated in June 2016 when sole custody of their daughter was awarded to the complainant. If the complainant had been lying to the authorities to assist her in the determination of family law proceedings, there would be little reason to participate in this prosecution once custody had been decided.[^3]

[20] In terms of the value of the complainant's testimony I will consider the following:

• plausibility;
• corroboration;
• internal consistency;
• external consistency; and
• balance.

[21] The complainant's description of the assault and the threat were plausible. The complainant described a heated argument over the whereabouts of a pair of earrings purchased by the defendant for their child. The complainant provided sufficient detail during the telling and re-telling of the events that also lent an air of plausibility to the testimony.

[22] In terms of corroboration, the prosecution submits that Ms. Oprel's evidence assists the Court. While it is true that the complainant's landlady confirmed that she spoke with the defendant and then the complainant, and there is confirmation that the complainant was wrapped in a towel, there is little else that corroborates the complainant's version of events. In fact, Ms. Oprel did not seem convinced that Ms. Williams was actually in the shower before her arrival, as Ms. Williams had claimed.

[23] Ms. Oprel's evidence was also relied upon by the prosecution as proof of the demeanour or state of mind of the complainant, again, with a view to supporting the complainant's evidence of what had just transpired before the landlady's surprise visit. Again, this evidence is not entirely helpful. The complainant was never asked what her state of mind was during this interaction. As well, Ms. Oprel's evidence that Ms. Williams did not seem her usual self could be explained by the complainant's likely embarrassment over the noise the argument with the defendant had created, or the fact that her landlady was potentially becoming involved, or any number of things. While Ms. Oprel's evidence does confirm that enough noise was made that other neighbours were concerned, Ms. Williams admitted in cross-examination that they were both yelling during the argument. To be sure, there is no corroboration of the complainant's allegations of assault and a threat to cause her bodily harm.

[24] For the most part, the complainant's evidence was internally consistent. It made sense, and the complainant did not deviate in describing all of the events about which she testified, except in one area.

[25] During her evidence in chief, the complainant was asked how long after she returned from putting her daughter to sleep did the argument giving rise to the assault charge occur. The complainant responded that the argument started maybe 20-25 minutes later. In cross-examination, Ms. Williams was asked whether the conversation about the child's earrings which lead to the argument had begun immediately upon her re-entering the living room, or if there had been any "small talk" upon her return. Ms. Williams responded that the matter was raised by the defendant as soon as she walked back into the room.

[26] There is no doubt that this is an inconsistency, but I do not find that this discrepancy affects the complainant's credibility to any significant extent. I also note that during closing arguments, defence counsel conceded that there were no inconsistencies in the complainant's testimony arising from cross-examination, perhaps because counsel overlooked this, or equally likely, because this inconsistency was not significant.

[27] There were no external inconsistencies in the complainant's evidence. That is to say, I did not find that any other evidence contradicted any of the complainant's testimony.

[28] The complainant testified in a balanced way. She did not appear to exaggerate her claims, she admitted unflattering facts, she appeared to maintain an objectivity when discussing her interactions with the defendant, she made appropriate concessions, and she did not appear to testify strategically (i.e., by attempting to anticipate where a line of questioning was going, or otherwise attempting to unreasonably control the narrative). While there are many examples of this in the evidence, I will only refer to a few.

[29] First, it is clear from the complainant's evidence that she alleged that the defendant forcefully grabbed her arm, shook her, and took her by the arm and required her to sit down on the couch when she was attempting to avoid a confrontation on the night in question. The complainant never suggested that this apparently non-consensual application of force was overtly violent, that it caused her to lose her footing, or that she experienced anything other than momentary discomfort. There was no suggestion by the complainant that she was physically injured or marked by the defendant in any way.

[30] Second, the complainant admits that during the argument they both raised their voices, and at that time she did not even consider that her daughter was in the next room sleeping. This admission of Ms. Williams' culpability during an argument mirrors the description she provided during her account of the prior, beer-pouring incident.

[31] In relation to that prior event, I note that it might have been more convenient for the complainant to have omitted having struck the defendant's face before he poured some, but not all according to the complainant, of his bottle of beer on her head. The complainant also admitted that she never apologized for hitting the defendant's face. Again, these admissions and the balanced account of both of their roles increase the confidence I have that Shaneka Williams was a truthful witness.

[32] Third, the complainant admitted that she did not consult the defendant before deciding to move to Nova Scotia, at the very least to give birth to their child, and perhaps permanently. This evidence tends to portray the complainant in an uncaring and selfish light.

[33] Fourth, during the period when the defendant went to Nova Scotia, the complainant was asked about the state of their relationship. She told the Court that they were not getting back together, but she was candid that they had been intimate during this visit, nonetheless.

[34] Fifth, the complainant was also forthright about having resumed intimate contact with the defendant upon returning to Ontario in August 2015. At that time, she was also aware that the defendant was apparently involved in a relationship with someone else. The complainant did not prevaricate or attempt to minimize her level of intimacy with the defendant.

[35] Sixth, the complainant testified that the defendant had mentioned having access to and having experiences with a firearm in the past, but the complainant was quick to admit that she had never seen the defendant with a firearm. It is difficult to know whether the complainant was aware that this admission might tend to diminish the reasonableness of any fear she had expressed resulting from the threat to "gun-butt" her, but it is obvious that Ms. Williams did not attempt to deceive the Court by even hinting that she had personal knowledge that the defendant actually possessed a firearm.

[36] Lastly, the complainant was candid that she did not complain to the police about these allegations until after she had already initiated family court proceedings in respect of the custody of their child. As I noted above, this timing suggests a possible motive to fabricate the allegations: once custody proceedings were underway, a complaint of assault and a threat might advance the complainant's case. This suggestion is possibly more attractive in light of the complainant's silence about these allegations for approximately one month before they were reported to the police. These facts are potentially harmful to the complainant's credibility yet she exposed them, without any apparent hesitation, during cross-examination.

[37] The complainant explained that she had called the police in January to have them caution the defendant to stop contacting her. She told the police at that time that she would be filing the paperwork for family court so that the defendant could have "contact with his daughter in a way that doesn't involve me." Again, this appears to have been a very mature and balanced way to have approached the family court process. Ms. Williams explained that she only told the police about the allegations because in the intervening week or so, after her first contact with authorities and after having commenced the family court process, the defendant was still contacting her.

[38] What if any weight should I give to the presentation of the complainant during her testimony? Many courts have cautioned triers of fact of the dangers of credibility assessments which rely too heavily upon the demeanour of a witness:

It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.[^4]

[39] Despite the dangers, triers of fact are not prohibited from reliance upon the manner in which a witness testifies: see R. v. N.S., 2012 SCC 72.

[40] During her testimony, Ms. Williams was calm, confident, and comfortable. She did not become flustered, or show emotion, or argue with counsel during a lengthy cross-examination that lasted about two hours, which was twice as long as her examination in chief. There was nothing about the complainant's presentation, her tone, her body language, facial expressions, cadence, inflection, word choice, or manner of speech that gave me any doubts about the content of her testimony.

[41] I acknowledge that I do not know Ms. Williams and I cannot take much from the manner of her presentation, but I am satisfied that there was nothing about her demeanour while testifying that caused me any concerns in terms of the authenticity or accuracy of what she recounted.

The reliability of the complainant

[42] Was Shaneka Williams a reliable witness? Was she in a good position to observe the events in question, did she appear to recall the events accurately, and did she convey her evidence in a reliable manner? As the complainant, Ms. Williams was in a good position to make the observations she did. Her memory was quite good, and there were few areas where the witness could not answer a question on the basis of an apparent lack of memory. Apart from the one inconsistency noted above, there was only one other area where the witness corrected herself.

[43] During cross-examination, Ms. Williams initially testified that the landlady had told her a couple of days after the alleged incident that she had come to the complainant's door because she had been in a bad marriage and wanted to know what was going on. Before another question was put to the witness, the complainant corrected herself and indicated that Ms. Oprel had likely mentioned this fact when she spoke with the defendant at the complainant's door, on the evening of the alleged assault and threat.

[44] On the basis of the analysis to this point, it would be fair to say that I believe the evidence of the complainant. That is not the end of the matter. I must be satisfied that the evidence establishes that the defendant committed an assault, beyond a reasonable doubt. Given the submissions made by counsel for the defendant, I must also consider whether a possible defence exists or leaves me in a state of reasonable doubt.

Does the defence of de minimis or consent apply, or has the prosecution proven that these defences do not apply beyond a reasonable doubt

[45] I must consider whether the defence of de minimis or consent arise in this case. I acknowledge that the defendant need not prove anything to establish either of these defences: instead, the prosecution must satisfy the Court that no defence applies, beyond a reasonable doubt, before a finding of guilt can be made.

[46] For either defence to be successfully raised, I must be left in a state of reasonable doubt of the guilt of the defendant in respect of the following:

i. The defendant did not apply force to the complainant beyond a de minimis amount; or

ii. The defendant's use of force was consented to by the complainant.[^5]

[47] As a starting point, the common law defence of de minimis exists because the authority of the state should not be used to interfere with individual liberty absent actual harm. As our Court of Appeal stated in R. v. Murdock:

The "de minimis" defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest. The harm principle also underlies the long accepted rule of statutory interpretation which directs that criminal statues, where possible, should not be read so as to encompass conduct which is trivial or harmless: R. v. Hinchey, [1996] 3 S.C.R. 1128 at para. 36; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at 1082.

[48] After a thorough review of the complainant's evidence, I am not left in a state of reasonable doubt that the application of force was de minimis for the following reasons:

i. The complainant testified that the defendant's hold on her arm hurt her;

ii. When Ms. Williams asked to be let go, her arm was squeezed tighter;

iii. The application of force upon the complainant's arm was accompanied by the defendant shaking her by the arm;

iv. The defendant then took the complainant, who had been heading to the kitchen to avoid a confrontation, forcefully to the couch, where he forced her to sit down;

v. The defendant maintained a hold upon the complainant's arm, even after she was seated; and

vi. The application of force lasted for several minutes in duration.

[49] Accordingly, I am convinced beyond a reasonable doubt that the defence of de minimis does not apply in the circumstances of this case.

[50] I am equally convinced of the defendant's guilt of assault on the basis of a lack of consent by the complainant to the application of force applied by the defendant for the following reasons:

i. There was absolutely no evidence of a consensual physical encounter. To the contrary, the complainant testified that she did not want to be held by the defendant and she told him to let her go, because he was "hurting me";

ii. There was no pattern of similar prior conduct between the parties that suggested actual or implied consent to this application of force. To the contrary, in the past, within a couple of months after a similar event, the complainant ended her relationship with the defendant and moved to another province; and

iii. In the instance before the court, the complainant and the defendant were no longer in an intimate partner relationship that might otherwise suggest an understanding of physical contact between the defendant and the complainant in emotionally driven situations where a criminal intent was absent.

[51] For the purposes of this part of the analysis, I am not considering whether or not the words that followed the non-consensual application of force shed light on the defendant's intention to assault the complainant. I find that the on-going actions of the defendant, despite the explicit request of the complainant to be released from his grip, speak volumes in terms of his state of mind that night.

[52] In all of the circumstances, after a consideration of all of the evidence and the submissions of counsel, I am satisfied that the defendant committed an assault upon the complainant, beyond a reasonable doubt. I am not left in a state of reasonable doubt about the assault in terms of the level of force applied by the defendant, or whether the complainant had consented to the assault.

Has the prosecution proven beyond a reasonable doubt that the defendant threatened to cause Ms. Williams bodily harm

[53] The complainant testified that the defendant ended the assault by releasing her arm. She testified in chief:

He let go of my arm and said, "now go away from me," and he had made some comment about how he wishes that he had brought his pistol with him so he could gun-butt me like the last b-i-t-c-h that he was with, because I get out of line too often.

[54] The defendant's position was that this comment was never made. I specifically reject that position. I accept the complainant's evidence that the defendant spoke these words following the assault upon her. Everything I have said about the complainant's credibility and reliability in relation to the assault allegation are equally applicable and serve to explain why I believe that these words were uttered by the defendant.

[55] Counsel for the defendant submitted that these words were not a threat, the words were not to be taken seriously, and in fact, they were not taken seriously. He relies upon the fact that the complainant did not call the police, she did not mention the threat to her landlady, she did not ask the defendant to leave her apartment that night, and there was no evidence that the complainant ever took any safety precautions following this incident.

[56] I have to decide what meaning a reasonable person would give to the words of the defendant in the circumstances in which the words were spoken. Words that could not be taken seriously by a reasonable person in the circumstances are not a threat.

[57] On the face of it, the words used by the defendant suggest a regret about a state of affairs, not having a pistol present to use to hit the complainant. Would a reasonable person aware of the circumstances of the utterance, that is, immediately following an assault by a former intimate partner, take these words as a threat?

[58] The words themselves are extreme. They imply that the defendant has access to a firearm. In the context of a heated argument which had become physically violent, despite the complainant's attempts to avoid and her verbal resistance to further physical confrontation, there is no doubt in my mind that a reasonable person would take these words as a threat to cause the complainant bodily harm, in these circumstances.

[59] Consequently, I am not left with a reasonable doubt whether the defendant threatened to cause the complainant bodily harm by the words he used following his assault upon her.

CONCLUSION

[60] After a consideration of all of the evidence and submissions, I am satisfied beyond a reasonable doubt that Justin Jack committed an unlawful and unjustified assault upon Shaneka Williams, and he threatened to cause her bodily harm on 17 December 2015. Accordingly, I find the defendant guilty of counts 2 and 3 of the Information.

Released: 21 June 2017

Justice G. Paul Renwick

Footnotes

[^1]: The complainant acknowledged that her unintentional application of force may have caused the defendant some additional discomfort given that he had been suffering a toothache.

[^2]: It should be noted that the evidence established that the food was not hot and the complainant was not physically injured by this action.

[^3]: I am not ignorant to the possibility that notwithstanding the completion of the family law proceedings the complainant may have decided to participate in this prosecution to avoid future difficulties with the authorities, but this suggestion was never canvassed during her testimony and there is not even a scintilla of evidence to warrant such consideration.

[^4]: R. v. Rhayel, 2015 ONCA 377, at para. 85.

[^5]: In the absence of any evidence on this point, I am not prepared to consider whether the defendant would have reasonably but mistakenly believed that he had the complainant's consent to apply force to her.