Ontario Court of Justice

DATE: 2022 08 16 COURT FILE No.: College Park, Toronto 21-75000916

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NIKOLAS MORELLO

Judgment

Before: Justice B. Jones

Heard on: July 22 and August 15, 2022 Reasons for Judgment released on: August 16, 2022

Counsel: M. Giovinazzo ...................................................................................... counsel for the Crown J. Mencel............................................................................................... counsel for N. Morello

Jones J.:

Introduction

[1] In 2020 Megan Charette and Nicolas Morello were in an intimate partner relationship. It was not a healthy one unfortunately. It was plagued by emotional and physical abuse, financial turmoil, accusations of criminal behaviour, and mistrust. For several months in 2020 they attempted to work through these problems while living together. They did not succeed.

[2] On December 6, 2020, Ms. Charette alleges that Mr. Morello assaulted her at their residence. He pleaded not guilty.

Crown Evidence – Testimony of Ms. M. Charette

[3] Ms. Charette is 30 years old. She was in a relationship with Mr. Morello for approximately seven months. It ended, on her version of events, at her request around September / October, 2020.

[4] At that time, she was living in a two bedroom apartment at 23 Oriole Road, Toronto with her youngest son and Mr. Morello. He was there only as a roommate.

[5] Their relationship was “rocky” and there were other criminal charges before the courts that involved them. Mr. Morello was on a release order at the time prohibiting him from residing with her. Yet they resided together regardless.

[6] She worked in Aurora and she helped him obtain a position with her employer. Sometimes they worked the same shift, but other times they did not. She complained that he did not show up to work consistently, jeopardizing his employment and their shared financial security.

[7] One flashpoint between them was how Mr. Morello would get to and from work. While Ms. Charette had a driver’s license and a vehicle, he did not. He could take public transit (e.g., GO Train) or pay for an Uber. Yet this latter option cost approximately $60 each way. As a result, she impressed upon him the importance of taking public transit whenever possible.

[8] When he took an Uber, he used her Uber account. He did not have as much money as her and she had to support him.

[9] On December 6, 2020, they had another argument about him taking public transit to work. He kept refusing to do so. One of them placed $60 cash on a table in their living room. When he was in the bedroom, she took his phone in order to remove the Uber app and her associated personal banking data to prevent him from billing her for future Uber rides.

[10] After she took his phone, Mr. Morello chased after her into the living room. He caught up to her and placed one hand on the back of her neck. He grabbed the phone with his other hand. He threw her to the ground. She was crying and upset. He told her to stop crying as he “didn’t even touch her.”

[11] A RING camera was in their living room and was motion activated. It recorded most of the incident. Ms. Charette identified herself and Mr. Morello on the video.

[12] She did not call the police to report this assault at the time. Rather, she reported it in February 2021. She was concerned if she reported this incident of domestic abuse the Children’s Aid Society might become involved since her youngest son, Chase, was living with her. She had experience with the CAS in the past and had lost custody of her two other children. She worried they might remove Chase from her care.

[13] In cross-examination she admitted she signed the lease for their residence with Mr. Morello despite his outstanding criminal charges and related release order. His surety was Ms. Chanelle Carson and she was aware that was his ex-girlfriend. She claimed this did not bother her and she had “no feelings of anything about it.” She later admitted she was upset about this as her status with Mr. Morello was in a state of uncertainty. She repeatedly denied they had a romantic relationship while they were living together however. Despite his promises to change his behaviour, they ultimately agreed one of them had to leave. In her own words, it was a toxic relationship.

[14] Mr. Mencel showed Ms. Charette a series of text messages she exchanged with Mr. Morello in December 2020. In these communications they often refer to one another in affectionate terms and say they love one another. One of these exchanges occurred on December 7, the day following the alleged assault. She ultimately admitted she did still have feelings for him. In addition, he was good with her son who also cared for him, and this mattered to her.

Defence Evidence – Testimony of Mr. N. Morello

[15] Mr. Morello is 26 years old. He dated Ms. Charette for about a year. He resided with her until December 31, 2020. He testified they were more than just roommates or friends. They were romantically involved.

[16] He was facing criminal charges at the time and his surety was Ms. Chanelle Carson. That was a woman he had also been romantically involved with. He discussed this with Ms. Charette and she was not happy about it.

[17] He agreed that their relationship was best described as toxic and they argued regularly over his employment and their financial situation. He would take public transit but it was not always available at the time of his shifts. He had to take an Uber to get to work on time. They split the cost.

[18] On December 6, 2020, he was in his room using his phone. Ms. Charette accused him of texting Ms. Carson. When she was not satisfied with his responses, she lunged at him and took the phone out of his hand. He chased after her into the living room to retrieve it. He did reach around her to take the phone back, and noticed she fell in the process. He did not intentionally assault her and did not mean for her to fall. Whatever happened on the video was unintentional.

Presumption of Innocence

[19] Mr. Morello is presumed innocent. The Crown bears the onus of proving him guilty beyond a reasonable doubt.

Assault

[20] A person commits an assault when “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”: Criminal Code section 265.

Witness Testimony

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

1. First, if the judge accepts the defence evidence then the accused must be acquitted. In this case, if I accept as true what the defendant and his witnesses say happened, then he should be found not guilty.
2. Secondly, if I do not believe the defence testimony or that of his witnesses, I could still be left with a reasonable doubt, and again I must acquit the accused.
3. Thirdly, even if the defence evidence does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences against the defendant.

[22] A court must consider all of the evidence when determining if the Crown has met its onus: R. v. Knezevic, 2016 ONCA 914 at paras. 30-31.

[23] Credibility refers to the witness’ sincerity or honesty. It is distinct from a witness’ reliability. Certain factors are typically considered by a court when assessing any witness’ credibility. For example, a court should consider the nature of any inconsistencies contained within a witness’s testimony or between a witness’s testimony and any prior statements made by the same witness: R. v. Tash, 2013 ONCA 380 at paras. 40-41; R. v. Cooke, 2020 NSCA 66 at paras. 28-29.

Prior bad conduct evidence

[24] During the examination of Ms. Charette, in both chief and cross-examination, references to prior allegations, charges, and other potentially discreditable conduct relating to Mr. Morello arose. Crown and defence counsel advised me this would form part of the evidence, and both cautioned me with respect to how to appropriately consider it. This evidence is not to be used for any form of unlawful propensity reasoning. Rather, it was introduced by counsel for primarily narrative purposes and to understand the nature of their relationship and the circumstances surrounding the events that occurred between the parties in the fall and early winter of 2020: see R. v. Z.W.C., 2021 ONCA 116 at para. 96.

Position of the Parties

[25] Mr. Giovinazzo submits that Ms. Charette was a credible witness. While there were some inconsistencies in her evidence she had plausible explanations for them. She also admitted to some poor decisions she had made in the past and accepted responsibility for these actions. Somewhat reluctantly, she ultimately conceded she was jealous of Mr. Morello’s relationship with Ms. Carson. If she was not entirely truthful initially about the nature of her relationship and feelings towards Mr. Morello, I should consider her life circumstances at the time and the history between her and Mr. Morello before drawing a negative inference with respect to her credibility accordingly.

[26] Whatever challenges her testimony might pose on its own, he asks me to conclude that the video demonstrates the offence occurred as she described it. I should accept her evidence, and reject that of the accused, primarily due to the strength of the video evidence. Mr. Morello’s reaction to Ms. Charette falling to the ground as depicted on the video was simply not consistent with someone who did not intend that to occur.

[27] Mr. Mencel submits that I should have a reasonable doubt that his client intentionally applied force to Ms. Charette. The video is not as clear as the Crown argues and another interpretation of it is that while Mr. Morello reached for his phone Ms. Charette fell the ground accidentally. There were significant problems with her evidence and she was caught in some outright lies during cross-examination. The text messages between her and Mr. Morello demonstrate she was highly misleading during her testimony in chief about the nature of their relationship. The video taken of her at their Sutton place residence established that she was intentionally misleading the court when she denied she had ever been violent with Mr. Morello herself in the past.

[28] Furthermore the timing of her disclosure of this incident to the police is highly questionable. She had multiple opportunities to report it to the police after the events occurred on December 6, 2020 before she finally did on February 21, 2021. The text messages that were sent and received between them after the alleged assault are not consistent with her being a victim of an assault by him. She was well-versed with the criminal justice system and had reported prior allegations of abuse by Mr. Morello to the authorities multiple times already. She simply waited until it was convenient for her and she wanted him charged yet again.

[29] In the alternative, he asks me to find that any application of force by Mr. Morello was done in lawful defence of his own property pursuant to Criminal Code section 35. He was in peaceable possession of his phone prior to her taking it from him. She had damaged his property in the past and he was reasonably concerned she would physically damage his phone after he took it or would possibly delete some of his personal electronic data. He used minimal force to retrieve the phone from her which was reasonable in all the circumstances.

Analysis

[30] Mr. Morello and Ms. Charette were in an on-again, off-again intimate partner relationship. Ms. Charette admitted she had mixed feelings for him and despite the fact they were not formally together as a couple, she agreed they would live together. This was their arrangement even though she knew he was on court orders not to associate with her. She also agreed to live with him even though he was involved romantically – at least in her view – with his surety at the time. While she described their relationship as “toxic”, it is clear to me from her testimony and the review of the text messages introduced into evidence that there was genuine affection between them at times.

[31] Mr. Morello himself agreed in his testimony that they were in a romantic relationship during this time period.

[32] As is the case in many intimate partner relationships that are unstable, there were good days and bad days. Ms. Charette’s relationship with Mr. Morello was, sadly, characterized by emotional abuse, allegations of infidelity, and acts of violence. Ms. Charette accused Mr. Morello of criminal conduct in the past and had him arrested on multiple occasions.

[33] She never gratuitously maligned the character of Mr. Morello per se, although she did express her dislike of his lack of initiative and how he approached his employment. She also felt unappreciated. She went out of her way to explain that she did truly care for him, was in love with him at one point, and still cares for him now. The text message conversations which occurred over the month of December 2020 confirm this description of her relationship. Mr. Morello’s responses demonstrate he too felt something for her.

[34] However, during the latter portion of her cross-examination, it was evident to me she had been providing an extremely misleading picture of her relationship with Mr. Morello. She initially denied ever being physically violent with him. Yet the video recorded at their Sutton address (Exhibit 6) captures her admitting to having been physically violent with Mr. Morello. This stood in direct contradiction to her earlier testimony.

[35] During her testimony in chief and during the early portion of her cross-examination, she testified she held no ill will towards Mr. Morello and wished the best for him. She was simply unhappy about how their relationship unfolded and ended. She also said she was happy her youngest son cared for him. During cross-examination she admitted she posted a Tik Tok Video (Exhibit 7) only one month before testifying in this case where she advertised she was looking forward to seeing Mr. Morello “burn” in court. She also accepted she told her son to call Mr. Morello a “faggot”. While she apologized for the atrocious decision to influence her son in this manner, both of these are powerful examples of the animus she has towards Mr. Morello.

[36] She denied having romantic feelings for Mr. Morello when they were living together in the fall of 2021. Yet in cross-examination she was taken through the text messages 6 and she admitted there was much more to their relationship at the time. She considering getting back together with him. In these messages she tells him she loves him and wants to keep their relationship. For example, on December 13, 2020, she wrote that it would mean the world to her if he spent the weekend with her and her son. On December 26 she wrote “I love you” and he responded, “love you more.” These exchanges happened after the alleged assault on December 6.

[37] I do approach some of this evidence with caution. There is no inviolable rule about how someone subjected to trauma will react. It may have taken Ms. Charette time to fully process what occurred in her relationship, the degree to which both parties were at fault, and that they were better off without one another following the end of the relationship. While she did not report the incident to the police until February 21, 2021, a delay in her reporting the incident by itself, does not make her less credible.

[38] Mr. Mencel argues that she did provide another statement to the police in this interim time period on February 10, 2021 about Mr. Morello which suggests she was not being truthful about why she held back on reporting this specific incident. Rather, she chose to wait to report it until it suited her interests. She had reported him to the police on many occasions and understood how the police investigated allegations of intimate partner violence. I agree that the timing of her disclosure of the assault in this case raises some concerns about her credibility given these particular circumstances.

[39] There were other aspects of her testimony that caused me serious concern. She eventually accepted that she knew or believed Mr. Morello was in a sexual relationship with Ms. Carson and this made her jealous. She admitted she grabbed a tablet from him at least once to find out if he was texting her. The text message conversations clearly demonstrate she had significant romantic feelings for Mr. Morello during December 2020 and I find she was attempting to mislead the court initially about the status of their relationship. Indeed, that she would allow him to live with her despite the fact he was facing charges for assaulting or threatening her and knew he was on a court order to stay away from her speaks to the strength of those feelings. This was not simply a platonic roommates relationship. It was something much more than that, even if the contours of their relationship were unclear at times.

[40] At various points in her testimony she feigned memory loss or the inability to remember details. Then she would often recall those details once Mr. Mencel repeated the questions or confronted her with social media evidence that contradicted her earlier position. For example, after initially hesitating, she accepted she had sent the video of the assault (in which Mr. Morello appears naked) to other persons, including mutual acquaintances, and his friends. She also posted it on social media. While she denied this was done to humiliate him, I do not accept her explanation. That was at least partially her motivation.

[41] I understand that Ms. Charette’s evidence must be assessed in the context of the volatile intimate partner relationship she was experiencing. It was emotionally challenging at times. There were constant arguments, including over money and Mr. Morello’s work habits. She felt financial pressure and was concerned that his behaviour at work might reflect poorly on her as she got him the job. She felt the opportunity at their shared employer was one of the best things that ever happened to her. She had three children to care for even if all three were not living with her at the time. She found herself in a very difficult time in her life with multiple pressures bearing down on her. In her view, she felt unappreciated by Mr. Morello and was frustrated he did not contribute to their shared responsibilities as he should have.

[42] A woman who suffers from an abusive relationship may not simply be able to leave that relationship for a variety of reasons. In this case, it is clear to me Ms. Charette was deeply conflicted about her relationship status with Mr. Morello. I also understand that she was very afraid of the Children’s Aid Society learning of her experience with domestic violence. In her mind, and based on her prior experiences, that might result in them taking her youngest son away from her. This was a reasonable concern.

[43] Having experienced a traumatic event on December 6, 2020 in the full context of this relationship, her lack of ability to recall certain details is understandable. Experiencing trauma – either direct physical trauma or prolonged emotional turmoil – may very well make it challenging to recall minor details such as times and peripheral matters: see R. v. G.M.C., 2022 ONCA 2 at para. 38.

[44] That said, Ms. Charette still bears some significant animus towards Mr. Morello and was clearly jealous of his relationship with his surety in 2020. Her testimony was characterized by inconsistencies and the social media evidence she accepted as authentic outright contradicted key aspects of her testimony. There are simply too many problems with her evidence and I am left with serious doubts about her credibility. I also find her to be a highly manipulative person who attempts to twist events in a manner that suits her interests. As a result, I do find I can rely on her evidence except to the extent I am satisfied it is confirmed by the video recording entered as Exhibit 2.

[45] Mr. Morello testified that the reason Ms. Charette took his phone on December 6, 2020 was because she wanted to know who he was texting and why. I find that explanation is truthful and consistent with the rest of the evidence in this case, including Ms. Charette’s own testimony. He admitted to conflict in their relationship and accepted his own behaviour was not without its faults.

[46] With respect to the December 6 assault, he explained he was trying to re-take possession of his phone to prevent Ms. Charette from potentially causing some form of mischief. This was a reasonable concern given the nature of their relationship up to that point. He admitted he went after her quickly as she entered the living room and grabbed the phone from her. He denied he intended to harm her or cause her to fall. If that occurred, it was therefore accidental.

[47] In cross-examination he testified he had been arguing with Ms. Charette prior to the incident about whom he was texting and his use of the Uber transportation service. He accepted he did not mention the Uber portion of this dispute during his testimony in chief. I find this inconsistency was minor.

[48] Mr. Morello also denied that the video demonstrated he made physical contact with Ms. Charette. He took this position despite Mr. Giovinazzo playing Exhibit 2 for him and showing him specific frames from the video which appear to show his left arm on her upper body while his right arm was already holding his phone.

[49] While I agree with Mr. Giovinazzo that the still frame captured from the video does appear to show Mr. Morello had some physical contact with Ms. Charette, it must be remembered that this incident happened very quickly and the entire video itself is only about 16 seconds long. It recorded events that occurred over 18 months ago. The portion capturing the alleged assault was only 3-4 second in length. His refusal to accept he did touch her despite the video and frames demonstrating some contact occurred should be considered accordingly. I do agree that Mr. Morello’s credibility is somewhat strained by his steadfast refusal to accept the video does show this happening however.

[50] Fundamentally, upon review of the video, I cannot be certain that it demonstrates Mr. Morello was intentionally assaulting Ms. Charette. Certainly, that is one interpretation. But an equally plausible interpretation is he grabbed his phone back with force, they struggled, he came into physical contact with her briefly, and she fell as a result. The video simply does not record with sufficient precision what occurred between them. It begins abruptly and does not fully display what happened before he grabbed for the phone. I cannot ascertain his intent with the required degree of certainty from its contents. Furthermore Ms. Charette’s reactions as captured on the video may have been genuine but they may also have been her exaggerating what occurred for the camera she knew was recording the incident. Given my prior findings about her character I cannot rule out this possibility.

[51] Mr. Morello’s testimony was generally believable, and he was adamant he did not intentionally apply force to Ms. Charette. Faced with two equally plausible interpretations of the video itself, and based on my significant concerns with Ms. Charette’s credibility, I am left with a reasonable doubt that he applied force to her intentionally. Mere recklessness on his part that may have resulted in her falling to the ground does not suffice for an assault charge: see R. v. Tyrell, 2021 ONCA 15 at paras. 34-38.

[52] In light of this decision, I need not fully explore the alternative argument that Mr. Morello was acting in lawful defence of his property pursuant to section 35 of the Criminal Code. I note, nevertheless, that in my view, a court should apply great caution before accepting that someone involved in an intimate partner relationship could lawfully resort to using force on their partner simply to prevent damage to a minor item of property such as a phone. In this case, for example, Mr. Morello could have taken far more time to reason with Ms. Charette and request the return of the phone. She was not imminently about to break it or render it somehow inoperable. He could also have simply abandoned his interest in the phone altogether if the only way to retrieve it was to risk harming Ms. Charette to get it back.

[53] To resort to the use of force – even minimal force - in these circumstances would have been greatly premature. The fundamental importance of ensuring that intimate partner relationships must be from any threat or application of violence will almost always weigh heavily against a purported claim of a defence of property such as what occurred here. As noted by the Ontario Court of Appeal in R. v. Inwood, “spouses are entitled to protection from violence”. Our understanding of the profound impact that such violence has on its victims has significantly evolved since that decision was released.

[54] A lost phone can be easily replaced. The trauma associated with intimate partner violence may last a lifetime.

[55] For these reasons, I find him not guilty of assault.

Released: August 16, 2022 Signed: Justice Brock Jones