COURT FILE No.: Elliot Lake, 11-309
Citation: R. v. Fournier, 2012 ONCJ 15
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Edmond Joseph Michael FOURNIER
Before Justice R. Villeneuve
Heard on November 29, 2011, and December 19, 2011
Reasons for Judgment released on January 3, 2012
Mike Kelly ................................................................................................................. for the Crown
René Fabris ......................................................... for the accused Edmond Joseph Michael Fournier
Villeneuve, J.:
[1] Edmond Joseph Michael Fournier (the defendant) is charged that on or about the 20th day of August 2011 at the City of Elliot Lake he committed an assault upon Jo-Ann Linda Belmore and in so doing caused bodily harm to her contrary to Section 267(b) of the Criminal Code of Canada. Furthermore, the defendant is charged that on or about the same date and location he did commit an assault on Michelle Tracy Davis contrary to Section 266 of the Criminal Code of Canada. Thirdly, the defendant is charged that on or about the 24th day of August 2011 at the City of Elliot Lake did unlawfully possess a substance included in Schedule II to wit: cannabis marihuana under thirty grams contrary to Section 4(1) of the Controlled Drugs and Substances Act.
[2] The Court conducted a trial on counts 1 and 2 of the Information. The defendant plead guilty to possession of 14.9 grams of marihuana while being searched incident to arrest on counts 1 and 2 on August 24, 2011.
[3] I will conduct a brief review of the evidence called by the Crown and by the defence prior to embarking upon an analysis of that evidence.
[4] The first Crown witness called was Michelle Davis. Miss Davis had been a long-time resident of Elliot Lake but at the time of trial was residing in Manitoba. She was in Elliot Lake on August 20, 2011. She knew both the complainant Jo-Ann Belmore and the defendant. On the date in question, Miss Davis testified that she was at the residence of Deresa Marshall located at 44 Axmith Avenue in the City of Elliot Lake. She arrived at that residence for an after bar party somewhere between 2:30 and 3:00 a.m. She testified that prior to the party she and Miss Belmore, among others, were at the Coachmen Inn in Elliot Lake. Everyone was consuming alcohol. Miss Davis was consuming beer but denied being drunk. She had no specific recollection of the quantity of alcohol she had consumed on that night but despite vigorous cross-examination denied being intoxicated to the point that her memory of the night’s events would have been affected.
[5] She did testify that prior to going to the Coachmen, she and Miss Belmore along with others again, stopped at the Tammy Guindon residence. She couldn’t recall whether she had consumed alcohol at that stop prior to the bar.
[6] Her evidence then primarily focused on the events leading to the charges in counts 1 and 2, which events occurred at 44 Axmith Avenue in Elliot Lake. Miss Davis recalled that the defendant was late in arriving at the bar and this would seem to be consistent with the defendant’s own evidence that he had been to Barrie, Ontario earlier in the day to assist his uncle in moving a cousin’s furniture. She couldn’t recall the quantity of alcohol that the defendant consumed at the bar but she confirmed that he did consume alcohol. She also confirmed that during that period of time that she saw the defendant at 44 Axmith that he was consuming what she believed was beer. She admitted that she did not keep an eye on the defendant and in fact admitted that for a period of time she did not see him at all which again would be consistent with the defendant’s evidence that he left 44 Axmith to go and pick up his marihuana.
[7] There was a bonfire going on at 44 Axmith although Miss Davis testified that she did not ever go to the bonfire choosing instead to remain around the house. She decided to leave the residence at approximately 4:00 a.m. and called a cab to pick her up. As she was walking down the driveway she testified that she saw the defendant standing over Miss Belmore who was lying on the ground at the end of the driveway. She observed the defendant to have a hold of Miss Belmore’s hair at which time he slammed Miss Belmore’s head to the pavement. Miss Belmore, in the eyes of Miss Davis, appeared to be traumatized. Miss Belmore then got up and came running over to Miss Davis who shielded Miss Belmore from the defendant who was trying to get her house keys. At that point, Miss Davis testified that she told the defendant to back off as everyone was at 44 Axmith for a good time. It was at that time that the defendant punched Miss Davis in the mouth. This caused Miss Davis to react by dropping her purse and pushing the defendant to the ground. Her evidence was that the defendant then got up and egged her on to fight. No fight ensued as Miss Davis’ cab arrived. However, it was the defendant who jumped in the cab and left the scene.
[8] Miss Davis testified that she observed a cut to the top of Miss Belmore’s head which was bleeding. The location of the cut and the extent of the injury she said, were consistent with her observations of Miss Belmore’s head being driven to the ground by the defendant.
[9] Under cross-examination Miss Davis denied being intoxicated to the point where her recollection of the events could be inaccurate. She testified of knowing her limits on alcohol consumption and that she had not exceeded those limits. She was adamant in the description of the defendant injuring the complainant Miss Belmore. She denied kicking the defendant to the face while he was standing over the complainant. She confirmed being struck to the face and pushing the defendant away. She was vigorously cross-examined for some time by counsel for the defendant but stuck to her version of the events involving the complainant and the defendant at the end of the driveway.
[10] She was vigorously cross-examined on her interaction with the complainant the next day. In particular, she was challenged on a conversation she and the complainant had about pressing charges against the defendant. She admitted having a conversation with the complainant about the possible impact of criminal charges against the defendant on any action potentially be taken by the Children’s Aid Society given that the complainant’s daughter resided with her and the defendant in Elliot Lake. She denied concocting any of the evidence and colluding on that evidence with the complainant prior to the police being called the next evening.
[11] The Crown then called the complainant Jo-Ann Belmore. She too testified about the evening’s events and confirmed that she had been consuming alcohol both at the Coachmen Bar and at the Marshall residence at the after party. She confirmed that the defendant in fact did not show up at the bar until after 1:00 a.m. which again was consistent with his evidence that he had been out of the city until that time. She testified that things between her and the defendant were going fine, that they were both consuming alcohol and that she would have consumed beer and possibly a couple of shots during the evening.
[12] She testified that once everyone was at the Marshall residence for the after party that she lost track of the defendant for some time. Around 4:00 a.m. based on her evidence, she came out of the house and was confronted by the defendant about having been in the basement with another male. She denied this but the argument led to her decision to leave the party. Her evidence was that she intended to leave the party and walk home which is not a far distance away, and so she proceeded around the house and up the driveway. The defendant was demanding the apartment keys from her but she refused to give them to him indicating that she was going home anyway and that she would require the keys. She testified that shortly thereafter and in the vicinity at the end of the driveway at 44 Axmith the defendant grabbed her by the hair and forced her to the ground. In so doing, he forced her head to the pavement causing her to strike her head onto the pavement. She testified that she may have blacked out temporarily at that point recalling next that she got up and upon seeing Michelle Davis in the driveway, ran behind Miss Davis and sought protection from Miss Davis from the defendant. She testified she stood behind Miss Davis and the defendant grabbed her arm wanting her to come with him. She did not want to go with him at that time. Miss Davis, according to Miss Belmore, put her hands out so as to remove Miss Belmore’s arms from the clutch of the defendant at which time the defendant struck Miss Davis in the mouth with his right fist. Thereafter she observed Miss Davis push the defendant to the ground, she observed the defendant get up and invite Miss Davis to fight at which time Miss Davis’ cab showed up and the defendant jumped in the cab and left the scene.
[13] She testified that she sustained an inch and a half cut to the top of her head requiring 3 stitches to close the wound. In addition, she scraped her elbow while falling to the ground while in the clutches of the defendant sustaining a minor injury to her elbow which was cleaned up at the hospital.
[14] She testified that she was taken to the hospital, attended to, stitched up, and kept for observation overnight. She was released from the hospital at approximately 10 or 11 a.m. the next day. She confirmed meeting with Miss Davis thereafter and discussing the previous nights’ events. She confirmed that she received several texts from the defendant at which time her calling the police was discussed. She further testified that the defendant, in those texts, threatened to call the Children’s Aid Society if she chose to call the police. After further discussion with Miss Davis and her mother, she called the police the evening of the next day after the assault.
[15] She was also vigorously cross-examined but denied being drunk while admitting to having consumed alcohol on the night in question. She vigorously denied having colluded with Miss Davis in their evidence prior to the police being called. She denied the version of the events advanced by the defendant in his testimony namely that she was pulled to the ground by her purse of falling on her bum. Her version of the events leading to the head injury were more in keeping with Miss Davis’ evidence than with any suggestion made by defence counsel on cross-examination.
[16] The Crown called Nurse Rachelle Baubien who was a nurse at the hospital during the early morning hours of August 20th when the complainant was admitted. She confirmed the extent of the injury to the complainant’s head. She dealt with the complainant at approximately 5:20 a.m. and noted the laceration to the top of the complainant’s head to be fresh as it was still bleeding. In cross-examination she did not recall smelling alcohol on the complainant’s breath. She noted that the complainant was staggering a bit.
[17] The Crown closed its case and the defence called the defendant. The defendant’s evidence with respect to his being away from Elliot Lake and arriving at the bar at approximately 1:00 a.m. was consistent with the evidence offered by both Miss Davis and Miss Belmore. The defendant testified that upon arriving at the Coachmen he found Miss Davis and Miss Belmore to be extremely intoxicated. He consumed approximately one beer and a shot while at the bar. He described as I indicated, Miss Belmore and Miss Davis to be “falling down drunk”. He confirmed that the entire party shifted to 44 Axmith with a brief stop at a residence owned by a woman by the first name of Crystal. He testified that thereafter they went to the Deresa Marshall residence where he did not drink. Shortly after arriving at the Marshall residence he and Crystal left that residence to walk to his uncle’s to retrieve his marihuana. Upon his return he testified that he observed the complainant, Miss Belmore, another woman, and a male walk out of the bathroom in a dishevelled state. He suspected that they had either been consuming drugs or that they were having sex in the bathroom. He confronted Miss Belmore with that and asked for the keys so that he could leave to walk home. Miss Belmore refused to give him the keys and indicated that she too was going home at which point they walked down the driveway toward Axmith Avenue. Once they arrived at Axmith Avenue he grabbed her purse to retrieve the keys causing Miss Belmore to fall to the ground on her bum. He denied ever grabbing her by the hair or striking her head on the ground as described by Miss Belmore and Miss Davis. As she fell to the ground and he was standing over her, Miss Davis approached them and kicked him in the face dislodging his sunglasses. It was at that time that in reaction to the kick to the face he struck Miss Davis in the mouth with his fist.
[18] His explanation for Miss Belmore falling to the ground was the combination of his tugging at her purse to retrieve the keys and her intoxicated position which he described as “falling down drunk”. Immediately he struck Miss Davis to the face, Miss Davis’ cab showed up which he jumped into and left the scene. He denied ever striking Miss Belmore’s head to the ground and denied that she was injured when he left.
[19] Under cross-examination he was examined about the threat of calling the Children’s Aid Society if Miss Belmore chose to go to the police. He admitted doing so but didn’t perceive that as a threat to her. The text was worded in response to Miss Belmore texting him that she would have him charged. The reply which he acknowledged was to the effect that he would tell the police everything about Miss Belmore’s coke and pills and that she would lose her daughter April so that she could do what she wanted in terms of calling the police.
[20] The defence next called Tammy Guindon. Miss Guindon testified that she had a pre-bar party at her residence at 68 Axmith Avenue. She testified that both Miss Belmore and Miss Davis attended her residence prior to the bar and that alcohol was being consumed. She testified that she herself was drinking and that Miss Davis and Miss Belmore were drinking as well but she could not recall what it was they were drinking or in what quantity they were drinking. Her evidence was rather vague in that she had no direct recollection of the quantities or types of alcohol consumed relating instead her evidence back to prior incidents when they always did this and concluding thus that Miss Belmore and Miss Davis must have been drinking at her residence.
[21] Her evidence was similar at the bar. She testified that she thought that everyone at the bar that evening was drunk but admitted even in examination-in-chief that she had no basis for concluding such. Her evidence was that she was intoxicated to the point that she knew that she should not attend the after party at 44 Axmith Avenue. Under cross-examination she admitted that she did not keep track of what everyone was drinking and didn’t know what Miss Belmore was in fact drinking that evening.
[22] The defence then called the defendant’s mother, Margo Carpenter. She testified that late in the evening of August 19th which I must conclude would have been in fact August 20th, she received a phone call. She was advised that her son, the defendant, was in a fight at Deresa Marshall’s residence at 44 Axmith Avenue. She immediately jumped in her motor vehicle and drove to Miss Marshall’s residence. When she arrived she testified seeing her son, the defendant, and Miss Belmore arguing. She rolled down her window and overheard her son asking Miss Belmore for the apartment keys. He had a hold of her purse at which point Miss Belmore fell to the ground on her butt. Miss Belmore was yelling at the defendant to let her up.
[23] It was at that point that she observed Michelle Davis come down the driveway and kick her son in the face. In response she observed her son punch Miss Davis in the face. She confirmed that the reason she drove to the Marshall residence was that her son had a bad temper and she was afraid that he would get into a fight. She testified that she parked her truck opposite Miss Marshall’s residence on Axmith Avenue and had her window open at all times.
[24] She described the complainant Miss Belmore as falling all over the place after her son had left in the cab. She stayed in her truck on Axmith Avenue until the cab left and observed Miss Belmore to fall several times during that period of time.
[25] She testified that at no time did she see Miss Belmore strike her head. In examination-in-chief she testified that she sat in front of the Marshall residence in her truck approximately 15 to 20 minutes in total. Under cross-examination she admitted that she remained at the scene approximately 2 to 3 minutes after the cab left. She testified that she had been there approximately 15 minutes before her son left in the cab. She confirmed that she drove to the Marshall residence thinking that her son was in trouble and in particular concerned about his bad temper but that at no time did she let her son know that she was there. She expressed a concern when she saw Miss Davis approach her son and Miss Belmore but at no time did she signal to any of them that she was there.
THE LAW:
[26] I remind myself of the onus placed on the Crown in any criminal prosecution. The Crown must prove through evidence the elements of the offence necessary to prove the guilt of the accused beyond a reasonable doubt. The accused does not bear the burden of proving his innocence in a criminal trial. He is presumed innocent until proven guilty on the standard set out above.
[27] I also remind myself of the case R. v. W.D., the Supreme Court of Canada decision dealing with the assessment of evidence and credibility of witnesses.
[28] If I accept the evidence of the defendant then I must find him not guilty of counts 1 and 2 on the Information before the Court. If I do not accept his evidence but it nevertheless causes a reasonable doubt then I must rule in favour of the defendant and find him not guilty. If I do not accept his evidence and it does not raise a reasonable doubt I must nevertheless be satisfied that the burden upon the Crown of proof of the elements of the offence beyond a reasonable doubt are present.
[29] I can deal rather quickly with the evidence of Miss Guindon. Her evidence was vague at best. She had no specific recollection of any amounts of alcohol consumed or no recollection of the type of alcohol consumed by herself, the defendant, Miss Davis, and Miss Belmore. Her evidence centered primarily on past experiences with Miss Belmore and her ultimate conclusion that on the night in question Miss Belmore must have been intoxicated as they often got intoxicated when they went out drinking together. Her evidence was of little assistance to this Court.
[30] With respect to the evidence of Miss Carpenter, I make the following observations. By her own admission she attended the scene of the altercation out of fear that her son, the defendant, would get into a fight given his temper issues. She testified that she received a phone call from an anonymous person and immediately drove to 44 Axmith Avenue and sat at the end of the driveway observing everything that went on in the version suggested by the defendant. She alluded to the fact that whoever called her would have observed the altercation at the end of the driveway at 44 Axmith and that she would have had time to receive that phone call, drive to the scene, before the altercation involving Miss Belmore falling to the ground. None of the witnesses including the defendant, Miss Davis or Miss Belmore, describe this incident as having lasted more than a few minutes. In fact, I think I can reasonably conclude that from the time that the altercation occurred at the end of the driveway to the point where Miss Davis got involved and the cab eventually showed up, that little more than 5 minutes at the most, would have elapsed. I don’t know how Miss Carpenter could have possibly received the phone call and arrived at 44 Axmith Avenue in time to witness anything.
[31] Furthermore, her evidence was that she attended the scene out of fear that her son was going to get into a fight. She knew that he had a bad temper and yet she chose to sit at the end of the driveway in her motor vehicle observing the entire altercation between her son, Miss Belmore, and Miss Davis, without saying a word. She never once called to her son to let him know that she was there. She never once called to her son suggesting that he leave with her. She never called out to Miss Belmore or to Miss Davis whom she observed to kick her son in the face. She did not call the police to complain about her son being kicked in the face. There would have been absolutely no reason by her evidence for Miss Davis to have kicked her son in the face based on her observation that all her son did was pull on her purse causing Miss Belmore to fall to the ground on her bum without any visible injuries being caused. She testified that she remained at the scene after the cab left for about 2 or 3 minutes and again never confronted Miss Davis about kicking her son to the face for what, according to her evidence, was a completely unprovoked reason.
[32] In fact, none of the witnesses who were at the scene that night including the defendant, Miss Davis or Miss Belmore, testified to seeing anyone on the street at the time of this altercation. Mr. Fournier, who would have most certainly recognized his mother’s truck parked at the end of the driveway, would have seen his mother parked there. His evidence was that there was nobody there.
[33] I find Miss Carpenter’s evidence to be completely unbelievable. In fact, I do not think she was even there on the night in question. Her reaction to the unfolding of the events as they occurred at the end of the driveway is absolutely incredible. Having made that finding, I now examine the evidence of the defendant.
[34] His evidence was suspiciously similar to that of his mother’s save and except for the fact that he never testified to his mother being parked at the end of the driveway. His description of the events namely that he tugged on Miss Belmore’s purse causing her to fall on her bum and thereafter received a kick to the face from Miss Davis was exactly as recounted by his mother, Miss Carpenter. Having concluded that she was not there on the night in question I can only conclude that this was a version concocted by mother and son after the event. There is no evidence that the defendant ever complained to the police about being kicked to the face by Miss Davis. If such a complaint was made it never came out in evidence in this trial. This version of the events at the end of the driveway came out at trial. While the burden is not on the accused to prove his innocence the Court might have thought that in response to being charged with assaulting Miss Davis that the defendant would have relayed to the police his version of the events which, if accepted, may have posed a defence to at least the count of assault.
[35] In applying the credibility test in R. v. W.D., I find that the accused’s evidence does not warrant acceptance so as to meet the first prong of the test resulting in an acquittal of the defendant. His evidence furthermore, does not satisfy the second prong of W.D. in that it does not cause this Court to find a reasonable doubt.
[36] I now turn my analysis to the evidence of the Crown. It is evident based on the evidence of the Crown and the photographic evidence tendered at trial that Miss Belmore did suffer a one and a half inch cut to the scalp of her head requiring 3 stitches to close. If this evidence is accepted, as having been caused by the defendant, then I find that the injury caused would constitute bodily harm in accordance with Section 267(b) of the Criminal Code of Canada.
[37] Miss Davis and Miss Belmore offered a similar version of the evidence as it pertained to the events that unfolded at the end of the driveway at 44 Axmith Avenue in Elliot Lake on the early morning hours of August 20th, 2011. Their evidence was similar in that they both testified that the event occurred at the end of the driveway on the paved portion of Axmith Avenue. They both testified that the defendant had a hold of Miss Belmore’s hair and that he forced Miss Belmore’s head to the ground causing her to strike her head on the pavement. In cross-examination it became evident that the observations of Miss Davis and the description of the events by Miss Belmore differed somewhat in how it was that Miss Belmore’s head struck the pavement. Miss Belmore described it as a fluid motion of being brought to the ground by the defendant who had a hold of her hair forcing her head to the pavement and thus striking her head. Miss Davis described it as the defendant standing over Miss Belmore who was already on the ground and then her observing the defendant holding Miss Belmore’s head by her hair directing her head in a swift motion towards the ground causing her head to in fact strike the pavement.
[38] Miss Belmore, by her own admission, may have blacked out during this incident as the blow to her head caused her to temporarily, she believes, lose consciousness. If that in fact occurred I would conclude that the loss of consciousness was but for a fleeting moment.
[39] Neither Miss Belmore nor Miss Davis agreed with the defendant’s version of Miss Davis’ involvement in this skirmish. The defendant described being kicked to the face by Miss Davis while standing over Miss Belmore. Both Miss Belmore and Miss Davis offered a version whereby Miss Belmore got up off the ground and hid behind Miss Davis who tried to calm matters with the defendant. In response to removing the defendant’s hand from Miss Belmore’s arm the defendant struck Miss Davis in the mouth at which time she pushed him to the ground. This version of events was offered by both of the key Crown witnesses. In fact, Miss Belmore described the defendant striking Miss Davis to the mouth with his right hand which would have been consistent with the swelling caused to the left side of Miss Davis’ mouth. They both described the defendant as egging on Miss Davis to fight after she had pushed him to the ground.
[40] Much was made about Miss Belmore and Miss Davis meeting later on in the day on August 20th and discussing the events. I conclude that they did in fact meet and that they did discuss the impact of any criminal charges against the defendant on Miss Belmore continuing to reside with him and her daughter. I accept the evidence of Miss Belmore and Miss Davis that Miss Davis urged Miss Belmore to make a police complaint. I accept that as a result of those discussions that they would have discussed the implications involving the Children’s Aid Society of such a complaint made to the police.
[41] In accepting the evidence pertaining to the injury caused to Miss Belmore’s head I find that it is entirely consistent with the evidence of both Miss Belmore and Miss Davis in that it occurred as a result of a violent redirection of Miss Belmore’s head to the pavement by the defendant.
[42] I must be careful not to shift the burden of proof to the accused. It is not for him to suggest how Miss Belmore might have sustained the injury absent him. He is not required to prove his innocence; however I find his and his mother’s explanation of the interaction between the parties at the end of the driveway, to be in marked contrast to that interaction as described by the Crown witnesses. I prefer and accept the evidence of the Crown witnesses as to what occurred at the end of the driveway at the Marshall residence, as opposed to that of the accused tendered by him and his mother.
[43] The evidence of the Crown as offered by Miss Davis and Miss Belmore is entirely, in my view, consistent with the nature of the injury. The assault upon Miss Davis, I find, was a result of her shielding Miss Belmore from the defendant and not a reaction to a kick to the face which was never complained about on the part of the defendant.
[44] I am satisfied that the necessary elements of assault causing bodily harm to Miss Belmore and assault upon Miss Davis, have been proven by the Crown beyond a reasonable doubt. I do not accept the version of the evidence offered by the defendant and the defence witnesses. For those reasons, I find the defendant guilty of counts 1 and 2 on the Information. There has already been a finding of guilt with respect to count 3 of the Information involving possession of marihuana. There shall be convictions on all 3 counts registered.
Released: January 3, 2012
Signed: “Justice R.Villeneuve”