Ontario Court of Justice

Date: 2022 11 04 Court File No.: Pembroke 21-0345

Between:

HIS MAJESTY THE KING

— AND —

CM

Before: Justice J.R. RICHARDSON

Heard on: July 13, 15, 2022 Reasons for Judgment released on: November 4, 2022

Counsel: Caitlin Downing, Counsel for the Crown Adrian Cleaver, Counsel for the defendant

RICHARDSON, J.:

Introduction

[1] CM (“C.M.”) stands charged that he did on or about the 26th day of March, 2021 at the Town of Laurentian Hills forcibly confine BW (“B.W.”). He is also charged with two counts of assault by choking, contrary to section 267 (c) of the Criminal Code.

[2] The Crown ultimately did not proceed with the Forcible Confinement charge.

[3] This case involves an assessment of credibility and the application of the principles in R. v. W.(D.). It also discusses the elements required for proof of the offence of Assault by Choking, contrary to section 267 (c), defence to property and the availability of the defence of de minimus non curat lex in a domestic violence context.

B.W.’s Evidence

[4] B.W. is 23 years of age at the time of the trial. She is working at Domino’s Pizza while she is finishing a college Personal Support Worker Program. She has one son, aged four, with a previous partner.

[5] She has known C.M. since July 2020. They originally met through Facebook. The relationship began immediately. He has two children from a previous relationship, a son aged five and a daughter aged three. In December 2020, she moved into C.M.’s home in Chalk River, Ontario. Up until the incident, they had a good relationship and C.M. had never been violent before.

[6] B.W. testified that she planned to move out as of April 1. Initially she was to move out on March 1, but the move was put off because she was waiting for a larger apartment. She advised that she was moving out because things were not working out and she wanted to get her own place again. She found the involvement of both her’s and C.M.’s former partners in the lives of the children was putting a strain on the relationship. “It was a lot for me to be a stepmother of two and take care of my own son,” she said.

[7] B.W. indicated that the decision to move out was hers and C.M. was not happy about it. She stated that he was not angry; he just wanted the two of them to work things out. She wanted the relationship to end completely.

[8] B.W. indicated that she had been telling C.M. for about a month that she did not want to be in the relationship. She no longer had feelings for C.M. and she found it overwhelming. She said that she had moved her son’s bed into the basement (from a room he shared with C.M.’s son upstairs in the residence) and she was sleeping downstairs with her son.

[9] On the day in question, B.W. came upstairs and an argument began with C.M.. They both said some words that were hurtful to one another. The argument then became physical.

[10] She said, “Something that set him off”. She elaborated that she told him that she had slept with someone else.

[11] He came up behind her and put one of his arms around her throat. She said that his elbow was around her throat. His arm was touching her from collar bone to collar bone at the base of her neck. He was using enough force to hold her. He had his other arm around her waist. She could not remember if he said anything to her as he did this. She did not have any difficulty breathing. She said that his arm was there for a couple of seconds or maybe a minute.

[12] She said that up to this point she had not threatened him, she had not thrown anything at him (yet) and she had not been physical with him. She admitted that she had not been nice with her words.

[13] Her son was witnessing what happened and he got upset. She said that once C.M. realized that her son saw what happened, he let go. She said that C.M. was always “really great” with her son and he apologized to her son immediately for what the boy had witnessed.

[14] She then shoved all of the contents of a bookshelf towards C.M.. She said that she had to go to the end of the hallway to knock the contents off the bookshelf. She did so because she was angry. She was also, “Saying some things” to him.

[15] She knocked an urn, a necklace, a picture and a glass of water off the bookshelf. The glass of water broke. The necklace ended up being lost. The picture might have broken. She was not sure if any of the items hit C.M..

[16] She went to the bathroom to sit and calm down and give an opportunity to relax and de-escalate the situation. She also intended for her and her son to have a shower.

[17] C.M. pursued her to the bathroom and he kicked the door in (or somehow forcefully opened it) and stood there. Her son, who was with her, was “freaking out”. She grabbed her son, shoved C.M. away and left the residence to go to the car. She said that when she shoved C.M. she did so with her shoulder. She also indicated that she was holding her son.

[18] At some point, she realized that her son had soiled himself and she called C.M. from the car and told him that she needed to come and get some clothes. He said, “ok”.

[19] She went back into the residence and went upstairs to the room that her son and C.M. son shared to get clothes for her son. While there, C.M. asked her why she was leaving him and why she was “doing this”. She said that he tossed her on to the bed and held her down. He was upset. He straddled her and held his hands to her neck. He was not squeezing her neck, but he was applying pressure. She said that she had difficulty breathing. She did not lose consciousness.

[20] She had a key in her hand which she used to scratch C.M.’s finger to make him let go. She did not know if she caused him any injury.

[21] She got up from the bed and ran towards the car. There was a Keurig and a bong on the counter which she flung off the counter. C.M. was coming toward her and he was crying. She managed to get outside but she fell outside. She also started to vomit. Her son was still in the car and he was crying. C.M. was at the window of the car asking her not to leave.

[22] She entered “911” on her cell phone and put it to the window of the car to show C.M. to get him to leave her alone. She left and went to her mother’s home.

[23] It was not her intention to call Police. She wanted to “scare” him and get him to leave her alone. When she got to her mother’s, the Police arrived and she realized that the call had connected. She said that at some point they had called her back and she told them that she was fine. She said she was crying on the phone, so they came anyway.

[24] She was seen by paramedics at her mother’s residence. She said that they suggested that she go to the hospital, but she did not remember whether she eventually went or not.

[25] She was shown some photos that were taken by the Police. Photograph 1 shows her track pants which are dirty. She said that this “had nothing to do with C.M.” and she slipped and fell when running out of the house the second time.

[26] Photograph 9 shows an injury to her middle finger. She did not have it before the incident and she surmised that she cut her finger while struggling with the keys when she was on the bed trying to get C.M. off her.

[27] She did not recall whether she had any bruising or marks on her neck. She said that she was “a bit sore” for a couple of hours but she was fine the next day.

[28] In cross-examination, B.W. admitted that on the day in question she was stressed. She denied that the source of that stress was the fact that her family was not coming to help her with her move. She reiterated that the source of the stress was that she was living with C.M. and she did not want to be in a relationship.

[29] She denied that the first time she told C.M. that the relationship was over was that morning. She reiterated that she had been telling him it was over for about a month.

[30] With respect to the first incident on the stairs, Defence Counsel suggested to B.W. that C.M. put his hand out and turned her to have a discussion. She denied this and said that he did not do so and reiterated that he put his arm around her neck. C.M. said, “This is how you use people?” She said that she did not recall much of what was said that day because she had put it out of her mind.

[31] She agreed that this is when she bluntly told him that she was, “already fucking someone else”. She agreed that she might have had a smirk on her face when she said this. She said that she did so because she wanted to hurt his feelings to make it clear that the relationship was over. She recalled him saying to her, “People’s emotions are not a game.”

[32] With respect to the bathroom incident, she did not agree that the lock on the door did not function. She maintained that he forcefully pushed it open. She denied telling the police that he kicked it in. He did not tell her that she could not leave but he did block the exit. Nonetheless she agreed that she had no difficulty shoving past him.

[33] Defence counsel asked B.W. if she understood that C.M. had been charged with forcible confinement as a result of the bathroom incident. She stated that she did not want him to be charged at all.

[34] She agreed with the suggestion that the car she took from the residence was C.M.’s car. She denied that he volunteered that she take the car; she said that she just grabbed the keys.

[35] She denied that she made three return trips to the house.

[36] With respect to the broken items from the bookcase, she agreed that the urn contained the ashes of C.M.’s child, a necklace and a photo of the deceased child. She denied that it was a vindictive act to target those items but stated, “I was angry”.

[37] She denied that when she came back into the residence she threw a piggy bank, a mason jar with coins, an engraved glass brick with his son’s name on it and picture frame with a photo of her son on it at C.M.. She stated that she did not throw or damage items after she came back into the house. She denied that C.M. restrained her in order to stop her from damaging things.

[38] She denied throwing a tumbler in the bathroom at C.M..

[39] She stated that the Keurig and the bong broke when she shoved them on the floor. She said that she did this to stop C.M. from hitting her.

[40] She denied that she came back into the house a third time because she needed more clothes for her son.

[41] She agreed that she called C.M. crying about an hour later and apologized for calling the police. She said that she did not want any charges laid.

[42] She stated that she returned to the residence on April 1 with a U-Haul in order to remove the items. She agreed that C.M. was there but she denied that he helped her load the items. She said that they had a conversation for about four hours in which they both apologized to one another for what had happened.

A.’s Evidence

[43] AW (“A.”) is B.W.’s mother.

[44] On the day in question she was getting ready to go to work. She recalled that she heard the door of her residence open. She went out and saw B.W. and her grandson in her living room. B.W. looked a bit upset and seemed off. She did not have much conversation with her because she had to go to work.

[45] She recalled seeing a Police officer walk up the driveway. He knocked on the door and asked her why she called the Police. A. denied calling the Police. The officer told her that someone from her number called the Police. At this point B.W. indicated that she had called the Police. B.W.’s cell phone is in A.’s name.

[46] B.W. started to have a conversation with the officer. She was crying while she was having the conversation. A. was not really paying attention because she had to continue to get ready to go to work.

[47] Despite what happened, A. indicated that she wanted to be friends with C.M. because he is a “good person” and she knows his family.

[48] In cross-examination, A. recalled that an ambulance arrived at the residence and she took her grandson into her bedroom while the ambulance was there. She did not know whether B.W. had any injuries.

[49] To her knowledge, B.W. was moving out and ending the relationship because of pressure from C.M.’s former partner. Neither of them had ever complained to her about violence from one another in the past. She opined that both B.W. and C.M. have an anger management issue.

[50] She agreed that there was an incident at some point in the past where B.W. took A.’s head and slammed it into the steering wheel in the car in the course of an argument.

Constable Matthew Barker

[51] Constable Barker is a member of the Deep River Police. He has been a police officer for 13 years. On March 26, 2021, he was working a day shift.

[52] He was dispatched A.’s home at 11:45 am that morning because of a “911 hang up”. The dispatcher told him that the caller would not pick up when the Police called back. He indicated that A.’s residence is actually in the Town of Laurentian Hills, which is the municipality that surrounds Deep River on three sides. Laurentian Hills is in OPP jurisdiction. Deep River Police dispatching is handled by the Belleville Police Service.

[53] When he arrived at the residence he was met at the door by A.. A. told him that B.W. dialed 911 after an altercation between her and her boyfriend in Chalk River. She was crying as she related what happened to him. She stated that he grabbed her throat and started choking her. The fight continued on the bed where he started choking her with his hands. She tried to fight him off and the only thing that she could grab were keys.

[54] Constable Barker stated that B.W.’s neck was not red. She complained that it was sore on the left side. Her hands were red. There was an injury to the middle finger on her right hand. He took a number of photos and forwarded them to the investigating officer from the OPP. Four photos were entered into evidence.

[55] Constable Barker asked for paramedics to attend as a precautionary measure because of the choking allegations.

[56] Ultimately the OPP arrived. The OPP took over the investigation and Constable Barker left at 12:12 pm. He stated that photos were taken before he left and before the paramedics arrived.

Admissions

[57] At the close of the Crown’s case, the parties indicated that there was an agreement that Constable Lapierre of the OPP attended at C.M.’s residence that day at 1:15 pm to arrest C.M.. C.M. met him at the door. He was very cooperative. They left for the Pembroke detachment at 1:26 and arrived at 1:55. C.M. was released at 3:29. He did not have any injuries.

C.M.’s Evidence

[58] C.M. testified in his own defence. He is 33 years of age. He lives in Chalk River Ontario which is a village within the Town of Laurentian Hills. He works as a labourer. He has two children that he has time with every weekend.

[59] He and B.W. started a relationship in July 2020. They moved in together in late December or early January. He said that it was always her intention to move out of the house and get her own place but she did not tell him the relationship was over until the day in question.

[60] He said that the day started like any normal day. B.W. was a bit more on edge. He attributed this to the fact that the date for her move was approaching and she did not have family to help her move. An argument ensued but the argument was about the move. B.W. did not have anything organized.

[61] The tipping point in the argument was having a shower. C.M. said that he wanted to have a shower and that “sent her into a spiral”. At this point B.W. started screaming at him and said that when she moves “it is over”. The parties were on the stairs heading in the direction of the bathroom. C.M. said that he reached and grabbed her by the shoulder to turn her around. He said that his intention was to try to connect with her. He said that the period during which he had his hands on her was thirty seconds or less.

[62] In cross-examination, he said that he put his right hand on her bicep and his left hand on her waist to spin her around so that they were facing one another. He agreed that she didn’t consent to this action. He also agreed that she was probably trying to walk away. He agreed that she had not threatened him. He agreed that he was the first person to use his hands during the argument, but said, that it wasn’t a “forced motion” or “an aggressive grab out”.

[63] At this point B.W. told him that she was, “fucking somebody else”. She would not tell him who. He said that she had a smirk on her face when she said this. This hurt his feelings and he asked her if she knew anything about human emotions.

[64] In cross-examination, he agreed that this was the first time that B.W. had told him that she was sleeping with someone else. He had no reason to believe that she was sleeping with someone else prior to her blurting this out. She did not have a vehicle or a way to get around. She was still actively intimate with him. Her demeanor did not change. When her son was not there, she was still sleeping with him. He stated that he asked her “How can you fuck with people’s emotions like that?”

[65] He agreed further that this shocked him and hurt him. He denied that it angered him. “I was devastated.” he said. He went on to indicate that he loved B.W. and he gave up an opportunity to get back together with a previous partner in order to be with B.W.. He thought that they were going to start a life together. Once she told him that she wanted to leave the relationship, he had to accept it. “We had been together every day for nine months”, he stated. He did not feel any resentment that she lived in his house, ate his food and was otherwise supported by him. The only emotion he felt was being distraught and hurt.

[66] C.M. said that B.W.’s son was there while the interaction on the stairway was taking place. He felt bad about this. He saw the impact the whole situation was having on the boy. That is what stopped this part of the argument. In cross-examination, he agreed that he and B.W. were both screaming until he saw the boy was there.

[67] B.W. went to the bathroom. C.M. stood out in the hallway. He was in disbelief. He told her to get out. He opened the bathroom door. He said that the door was easy to open because the lock was not the right size. He pushed it open with the palm of his hand. When he opened the door, B.W. was gathering up her make up and toothbrushes. They continued to have conversation which he said amounted to swearing back and forth. B.W. told him that he was scarring her son and she asked him how he could do this to the boy.

[68] He denied telling her that she could not leave. He let her walk past him. She was carrying her son so he moved to the side. He said that about a minute and a half elapsed. He told her to take his car and leave. He added that this was the only way she could have left as she did not have her own vehicle.

[69] He followed her out the door. She went outside and got her son into the car. She continued to be very upset and was yelling at him for “forever scarring” her son.

[70] He said that he followed her outside because, “That’s what people do in an argument.” He wanted to make sure that she left.

[71] She then went back into the house. She did not tell him why she went back in.

[72] Once in the house, she went to the kitchen. She went through the kitchen and walked past him along the hallway. In the hallway there was a shelving unit. He had arranged the second shelf from the top as a shrine or memorial for his first son, who died. There was a necklace, a photograph, a teddy bear which belonged to his grandfather, a photograph of his grandfather and an urn containing the boy’s ashes. As she walked past it, B.W. swiped these things off the shelf. The urn was chipped in the process. He said that he has never been able to locate the necklace.

[73] In cross-examination, Crown counsel again asked C.M. if he was angry that she knocked the items off the bookshelf. “I was disgusted, not angry. It was a malicious attack that she knew would hurt me. I was appalled, shocked and saddened,” he said.

[74] B.W. went to the room that her son and C.M.’s son shared. He followed her. In cross-examination, he said that he followed her because she damaged the property on the bookcase.

[75] She started gathering her son’s clothes. He said that she started throwing stuff from the dresser. She threw a mason jar and a glass block among other things. The mason jar contained some coins and American dollar bills. The jar smashed and there was money everywhere. The glass block weighed about five pounds. It landed near where C.M. was standing. There was framed photo of his son. That was broken. There was also ceramic piggy bank.

[76] At this point, C.M. said that he took her by the arms and restrained her on the bed. He said that there was no mattress on the bed – just a box spring. He leaned over top of her and held her there for about 10 to 15 seconds, long enough to yell at her to “calm down” and “stop”. He said that B.W. was still yelling when she was on the bed.

[77] He then let her up and backed up. He said, “Something clicked that this is messed up. I need to let her up and get her out.”

[78] In cross-examination, C.M. agreed that B.W. had moved her son’s bed to the basement a week or two before. He indicated that her son was not an “independent sleeper” and B.W. either slept downstairs with the boy or all three would sleep in the Master Bedroom. He said that if his children were there he would sleep with his son. Crown counsel asked C.M. if he agreed that sleeping with her son in the basement was a pretty clear sign that the relationship was over. He disagreed. He indicated that she could be moody and inconsistent where the relationship was concerned. She would leave and sleep elsewhere and then she would tell him that she loved him and be affectionate with him. He denied that she told him that she was sleeping downstairs because the relationship was over.

[79] As she was leaving, she was still “very fired up”. She reached into the bathroom, grabbed a drinking glass and threw that at C.M.. It glanced off his shoulder and smashed on a wall. She then went into the kitchen and threw a glass that was on the stove at C.M.. There was also a bong and a coffee machine. She threw those down. The glass smashed beside him to his right. The coffee machine came close to hitting him.

[80] He said that B.W. was still yelling and breathing funny as she walked to the car. She got to the car, shut the door, held up her phone with 911 on the screen and drove away.

[81] She then called to say that she was coming back for more clothes. She came back about a minute later and got the clothes.

[82] B.W. later sent him a Facebook message that said that she was sorry for ruining his life and the police were coming to arrest him. She also called him.

[83] In cross-examination, he stated that he cleaned all the damage up before the Police arrived. He said that he did so because his children were scheduled to arrive at 3:30 that day. He also thought that B.W. would return later that day. He stated that it took about twenty minutes to clean up. He had it all cleaned up before the Police arrived. He said that the Police arrived the first time at about 11:45, shortly after B.W. left. They did not come back until after 1. The first officer came looking for the source of a 911 call.

[84] B.W. spoke to him over the weekend. She said that she had a U-Haul to move her things lined up for the Monday or the Tuesday. She came during the day with a friend. She was there from 10:30 until 4. After 6, she returned with her parents. He helped her during the day, but left before her parents came. He said that their conversation was fine and his impression was that she was trying to pretend that nothing had happened.

Observations with Respect to the Relative Size and Weight of the Parties

[85] This was not placed into evidence, but I should not leave my discussion of the facts in this case without commenting on the relative size of the parties. C.M. is a big man. From observing him in court I would estimate his weight at 275 pounds or more. I would estimate B.W.’s weight of between 125 and 150 pounds.

Crown Position

[86] The Crown argued that B.W. was a reliable and credible witness. She did not take opportunities to present C.M. in a negative light. She admitted some responsibility for, “not being nice with her words” and saying, “something I said set him off”. She admitted that she did not want to see him charged. She readily admitted aggressive behaviour on her part. Her evidence is consistent with the injury to her fingers and the dirt on her pants. Her account was detailed.

[87] C.M., she stated, was not. The Crown maintained that he went out of his way to paint B.W. in a negative light and described her as the one was completely out of control while he remained calm and cool.

[88] She further argued that C.M. felt used by her and was angry because she had played with his emotions played during the relationship. He minimized the level of his anger and frustration. The tenor of his evidence was that he was justified in grabbing B.W. and turning her around because she admitted to sleeping with someone else.

[89] The Crown said that he does not offer an explanation for the injury to her finger, or the dirt on her pants. There is no cogent explanation as to why he followed her outside the residence. If he wanted to diffuse the argument, his actions in following her outside and continuing to escalate the argument do not make sense.

[90] The Crown submitted that his conduct was beyond the scope of de minimus. C.M. grabbed her by her shoulder with such force to turn her around that the two of them switch positions in the hallway. The actions occurred in the context of domestic violence and appellate courts have urged caution in the use of de minimus in domestic violence cases.

Defence Position

[91] Defence counsel argued that B.W. behaved in a manner that was violent and retributive. She purposely damaged items that were important to C.M. or belonged to his child. He stated that if B.W. had been choked she should have had marks on her. She did not have any marks and therefore the choking did not occur. He maintained that on C.M.’s version of the events, he only had his hands in the area of her clavicle in order to keep her from further damaging property. With respect to the altercation on the stairs, he argued that this was in the de minimus range because the act of turning her around was a reflexive action to get her attention that is not worthy of conviction. He stated that C.M. testified in a consistent and logical manner. He admitted fault where appropriate and he did not minimize his behaviour. The complainant’s evidence, on the other hand, was “rife with inconsistencies” and I should acquit.

Analysis

[92] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence.

[93] In R. v. W.(D.), the Supreme Court of Canada instructed triers of fact to assess evidence in this way:

a) First, if you believe the evidence of the accused, obviously you must acquit.

b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[94] In assessing the competing evidence in this case, I cannot compare each account and decide which account I believe R. v. Esquivel-Benitez, 2020 ONCA 160. I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected R. v. J.J.R.D. at paras. 46-48.

[95] Pursuant to section 265 of the Criminal Code, an assault is made out where the Crown proves beyond a reasonable doubt that the accused applied force without the consent of the complainant. Section 267 (c) of the Criminal Code makes it an offence to commit an assault where the Crown proves beyond a reasonable doubt that the accused chokes, suffocates or strangles the complainant. It is a distinct offence from assault with a weapon or assault causing bodily harm. In the case of the former, the Crown must prove that in committing the assault the accused used a weapon, carried a weapon or threatened to use a weapon. In the case of the later, the Crown must prove that in committing the assault, the accused caused an injury to the complainant that is not trivial or trifling.

[96] Thus, the Crown can prove the Assault by Choking offence even though bodily harm is not present. “Chokes”, “suffocates” or “strangles” are not defined in the Criminal Code. Generally speaking, these elements are made out where the Crown proves beyond a reasonable doubt that the accused took some action “ designed to block or constrict a person’s airway, such as by squeezing the neck or throat, or covering the nose and mouth” R. v. Bear-Knight, 2021 SKQB 308 at paragraph 77. To these elements, I would add the alternative that the offence can also be proven where there is evidence beyond a reasonable doubt that the accused took some action which applies pressure to the respiratory system of the complainant such that her ability to breathe is interfered with in meaningful way.

[97] Assault by Choking is very risky and dangerous. That is why Parliament added this offence in the Bill C-25 amendments in 2019. Although “Choking” has long been criminal conduct by virtual of section 246 of the Criminal Code, that offence required the Crown to prove the additional element that the accused choked the complainant in order to enable him or another person to overcome her resistance to the commission of another indictable offence. That offence was also a strictly Indictable Offence, punishable by Life Imprisonment. That offence uses the same “chokes, suffocates or strangles” language which is found in section 267 (c).

[98] In creating a stand-alone hybrid offence in section 267(c), Parliament allowed additional flexibility while recognizing the dangerous and risky nature of this conduct. The reasons for this are informed by the jurisprudence surrounding section 246, including R. v. Lemmon, 2012 ABCA 103 at paragraph 28, where the Alberta Court of Appeal stated:

Rendering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelong consequences. See R v Horvath (1982), 2 CCC (3d) 196 (Ont CA), R v Wallin, 2003 BCSC 809, and R v Muckle, (unreported. July 28, 2006, Alt. P.C.). The difference in the outcome, between unconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure. In the final analysis, this is an act of cruel domination met by sheer horror and often accompanied by serious physical and psychological harm.

[99] Although Lemmon dealt with a situation where the accused caused someone to lose consciousness, and speaks to the kind of bodily harm that can flow from choking, it is not necessary for the Crown to establish that there was a loss of consciousness or bodily harm. Nor is the Crown required to establish marks or bruising. This is because of the inherently dangerous nature of choking and the potential for significant physical and psychological harm.

[100] The issue in this case, which I will comment on more extensively below, is whether the Crown has proven beyond a reasonable doubt that the conduct of this case amounted to Choking contrary to section 267 (c). If not, where the Crown has proven beyond a reasonable doubt, that the accused has applied force to the complainant without her consent, a conviction for the included offence of common Assault pursuant to section 266 of the Criminal Code may still follow.

[101] Two potential defences in law are raised here.

[102] The first is the Defence of Property which is defined in section 35 of the Criminal Code. Where the evidence establishes that the accused believes on reasonable grounds that they are in peaceable possession of property and another person is about to damage or destroy property or make it inoperative or is actually in the course of doing so, they may take such action that prevents the other person from doing so, provided that the action which they take is reasonable in the circumstances. I will comment more extensively on this below.

[103] The second potential defence is the maxim de minimus non curat lex (the law does not confirm itself with trifles). In this case, Defence Counsel argued that the altercation between the parties on the stairwell was de minimus. Crown Counsel, however, quite rightly pointed out that appellate courts have sounded caution when applying this maxim to domestic violence situations.

[104] In R. v. Carson at paragraphs 24 and 25, the Ontario Court of Appeal stated:

This principle seeks to avoid the criminalization of harmless conduct by preventing the conviction of those who have not really done anything wrong. The application of the principle goes only so far as to preclude the criminalization of conduct for which there is no reasoned apprehension of harm or legitimate personal or societal interest: R. v. Murdock (2003), 176 CCC (3d) 232 (Ont. C.A.)…..

….The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in a crime. The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated.

Findings

The Interaction on the Stairway Was Not Choking but was a Common Assault

[105] Both C.M. and B.W. described the interaction on the stairway in similar terms. The only significant difference between them is that he indicated that he grabbed B.W. by the waist and shoulder to spin her around and face him while she indicated that he grabbed her by putting one arm around her neck and another arm around her waist. Quite frankly, on the facts of this case, this is a distinction without a difference. Even if I were to find that C.M. put his arm around B.W.’s neck in the manner that she described, B.W. fairly conceded that she had no difficulty breathing. Although section 267(c) might have been engaged if she did have difficulty breathing, in this case she did not, so the required elements of section 267(c) are not proven. The elements of common assault are, however, made out beyond a reasonable doubt.

[106] This raises the issue of de minimus. What bothers me about this case, is that everything that happened after this altercation on the stairway – which as I shall comment on below is nothing less than a complete rampage – is connected to that altercation.

[107] It also concerns me greatly, that this action was witnessed by B.W.’s young child and it caused him to be upset. C.M. almost immediately realised that the boy was watching and he discontinued applying force to B.W. and apologized for it. However, in some way, some damage has been done. Children should never be exposed to domestic violence. The intergenerational transfer of domestic violence is well known. Trauma during childhood can have serious ramifications for adulthood. The costs to society can be profound. Consequently, de minimus does not provide a defence in these circumstances.

[108] C.M. will be found not guilty to the offence of Assault by Choking but guilty to the offence of Common Assault.

Defence to Property Applies To The Interaction in the Bedroom

[109] As I indicated, what happened after the incident on the stairwell was nothing short of a rampage. B.W. was incensed that her child had witnessed C.M. grab her on the stairway. Although sensitive to the fact that the child had witnessed this violence, C.M. was shocked and upset by B.W.’s revelation that the relationship was over. This was not a case where she had “let him down easy.” He followed her seeking an explanation.

[110] In order to distract C.M. from pursuing her, B.W. damaged property that was special to him. I find that she specifically targeted these items, which included an urn containing C.M.’s son’s ashes. These are items that she had no right to interfere with and, having witnessed this, C.M. would be completely justified in following B.W. through the house to ensure that no other property was damaged. She took this as an intention on his part to escalate the situation and, him having already laid his hands on her, she was rightly concerned that he might do so again in the bathroom or in the bedroom. She wanted space and he was not giving it to her.

[111] This led to the predictable result that once in the hallway, the bedroom shared by the two boys, the bathroom and the kitchen, B.W. damaged and threw property at C.M.. She did not have the right to do so. In order to attempt to restrain her from further damaging property in the bedroom, C.M. pinned her to bed. I pause here to state that I believe C.M. when he said that B.W. damaged the items in the bedroom. I do not believe B.W. when she said that she did not.

[112] I find that after this happened, C.M. realised, as he did earlier during the altercation on the stairwell, that “this is messed up” and he let her up shortly after pinning her to the bed. Given their size difference, and the fact that the parties were on a box spring (the mattress having been moved downstairs) I am not surprised that B.W. had difficulty breathing once he was over top her. I have a doubt based on C.M.’s evidence that he had his hands around her neck.

[113] I am satisfied, however, that he was entitled to take reasonable steps try to restrain her in order to prevent her from further damaging his property. His restraint – even if it did involve putting his hands in the area of her neck and causing her to have difficulty breathing – was reasonable in the circumstances. I pause here to add that had the restraint led to her loss of consciousness or other meaningful injury, I would have found otherwise because the degree of force would not have been reasonable. Fortunately, it did not. B.W. did not have any injuries, other than being sore for a couple of days. I should also add that absent the defence of property, if I was satisfied beyond a reasonable doubt that C.M. had his hands around B.W.’s neck (which I am not) these actions would have been sufficient to found a finding of guilt for the Assault by Choking offence. On either version of events, absent the defence of property, C.M.’s actions would have been sufficient to found a finding of guilt to Common Assault.

[114] In this case, given my finding that he is entitled to the defence of property, he will be acquitted of the second count.

Released: November 4, 2022 Signed: Justice J.R. Richardson