COURT FILE No.: Newmarket Courthouse 11-04480

DATE: 2012·01·11

Citation: R. v. Spadafora, 2012 ONCJ 23

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOSEPH SPADAFORA

Before Justice Peter N. Bourque

Heard on November 24, 2011, January 9, 2012, January 11, 2012

Reasons for Judgment released on January 11, 2012

T. Vanden Ende ......................................................................................................... for the Crown

M. Stellato ................................................................................... for the accused Joseph Spadafora

Bourque J.:

Overview

[1] The defendant faces three charges including assault, assault causing bodily harm and threatening from an incident at the family home with his spouse.

[2] Jai Kumar is the spouse of the defendant. On May 22, 2011, she was at home with her 4 month old child and the defendant. She relates that there was an argument when she started to ask him to clean the bathrooms and to stop talking to his friends on the phone. He stated that she was always complaining. She states that he came over to her (she was sitting on the couch with the child on her lap) and put his hand over her throat for about ten seconds and told her that she was crazy. He then took both her wrists and shook them (she still had the child in her lap). She scratched his wrist. He slapped her, she slapped him, and he slapped her again. He took the child and she tried to retrieve the child. He kicked her on the knee, and then pushed her on her left side and she fell down. She said she was going to call 911 and he twisted her hand and broke her finger. She then went to get her phone and he took it away from her. She told him that she would go down to the lobby and call from there.

[3] He threw the phone on the couch and said "take it". She grabbed the phone and called 911. She stated that after she called the defendant was swearing and upset and stated he would kill her.

[4] There were some nine pictures of the witness filed which were taken at the hospital and at the police station. They show some redness on her right cheek, the bruising and swelling associated with her broken index finger and a bruise on her left knee.

[5] Also filed were some six pictures of the defendant showing the extensive scratching on his left and right arms and hands, and a scratch to his left cheekbone.

[6] The evidence of the pictures clearly indicates that the defendant and the witness were engaged in a fight. Where I am having some difficulty with the witness’ evidence is where she states that he scratched the defendant upon his arm to get him to take his hands off her wrists while she is sitting on the couch holding a baby. As she described it, it could only have been a single scratch and not a very serious one. The pictures show over nine or ten separate scratches upon the defendant and at least two of them appear to be quite deep. I find it more than just a little difficult to understand how she could have inflicted this sort of damage while sitting down (he is standing) with a baby on her lap.

[7] I also note that with regard to the allegation of the threat, the witness did not speak of it during her initial recitation of the incident. She also did not recite it when the Crown took her through the incident in detail until the Crown specifically prompted her. The 911 tape was played in court and a transcript was provided (Exhibit #16A and B). The transcript has the witness speaking at length to the 911 operator and indeed the defendant speaking in the background and the defendant speaking to the reporter. Nowhere on the tape is there any word of the threat that the witness testified to.

[8] With regard to the breaking of her finger, it is clear that it happened at some time during the altercation with the defendant and it is also clear that she was not aware of the broken finger until sometime afterwards. It is therefore not at all clear why she describes the injury as happening at a certain point.

[9] I note that the witness was on anti-depressant medication at the time of these events. While not going to her truthfulness, it may have affected her perception of events. I also note that she agreed with the defence counsel's suggestion that she was very argumentative with the defendant at this period of time and that she would be the instigator of the arguments. She agreed that she was angry with him on this occasion and she admitted to telling him derogatory things about his failure to immediately clean the bathroom, rather than take the phone call.

[10] The 911 tape, referred to earlier, sets out in many respects the defendant's version of the events. He stated: (at page 13) "Uh, well, my wife didn't take her medication. She's been acting crazy. She snapped. She started hitting me, I hit her back". (At page 14) he states: "....cause I didn't do anything wrong but defend myself, okay?......Well there's only so much abuse I can take as well, okay".....And when I'm getting yelled at and hit at because I didn't clean the washroom in a timely manner, that bothers me. I don't need to be hit. I don't need to be scratched, okay...". (At page 17) "...So, she's hitting me, I defendant myself and then I get in trouble?...On my arm.. I've got-I’ve got welts in my arms. Cause, you know, this is not the first time she's done that. She has nails. ....Oh, she slapped me in the face three, four times when I was holdin' the baby, cause she wanted to hold the baby. I'm like, Wait…Wait...I'm, I'm grabbing her I'm holding her. And she goes, "oh you’re hurting her. .........I'm not hurting the baby......So, then she slaps me two, three times, I hit her back."

[11] The defendant testified in court and stated that things were normal that morning and it was only after he did not immediately go and clean the bathroom that she began to make derogatory comments about him and that he went up to her to take the baby. He says that she slapped him and he picked up the baby. He states that she began to attack him by trying to kick his groin and she slapped him and also scratched him several times. The major scratching (there is still a scar on his arm) caused him to reach out and remove her hand from his arm and in doing so he said that he twisted her hand. He did not know that he had hurt her hand and stated the first time he knew her finger was broken was when the police told him so at the station. He denies that he did anything other than pushing her away as she was attacking him and he admits to returning her slap.

[12] In his statement to the police the defendant states: "...I'm the fuckin bad guy, 'cause I hurt her. You fuckin' poke a god dam dog, you're gonna get bit". The Crown asserts that this is a statement of retaliation, and that is what the defendant did. I am not prepared to come to the conclusion that in the context of the defendant being scratched in the fashion that he was, then his response was so nuanced.

[13] He specifically denies choking her, or hurting her hand when he took the phone from her. The defendant gave an extensive statement to the police and was vigorously cross examined by the Crown upon it. The Crown suggested that his statements of concern for the child were overblown. That maybe so, but the defendant was under a charge for a criminal offence and I do not necessary blame him for using any and all possible justifications for his actions. He was complaining about sitting in a police station for several hours without attention by the police. It bespeaks his frustration at being in this position and to him, unjustly charged.

ANALYSIS

[14] The burden remains upon the Crown to prove the allegations beyond a reasonable doubt.

[15] The defendant admits that in the course of this altercation he assaulted the complainant and in doing so caused the injury to her finger. He asserts that all of his actions were by way of self defence. As stated in R. v. C. J. O. [2005] 43518:

[21] Where an accused asserts self-defence to justify his actions, the Crown bears the burden of disproving each element of the defence beyond a reasonable doubt. These elements are:

(1) that the accused was unlawfully assaulted;

(2) that the accused did not provoke the assault;

(3) that the accused did not intend to cause death or grievous bodily harm; and

(4) that the force that the accused used was no more than was necessary to defend himself. R. v. Hebert 2002 SCC 29, (1996), 162 C.C.C. (3d) 129.

[22] The Crown is not required to prove beyond a reasonable doubt that the appellant’s conduct fails on every element of the defence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the four elements set out above was not established.

[23] In R. v. Cinous 2002 SCC 29, (2002), 162 C.C.C. (3d) 129 at para. 39 (S.C.C.), the Supreme Court of Canada states:

In a situation where the accused relies on this defence, and perhaps especially when the accused testifies, the jury must be told that the burden of proof in relation to this defence is on the Crown, who must prove beyond a reasonable doubt that the defence does not apply. Otherwise, there is a risk that the jury will be left with the impression that the burden is on the accused to prove that the defence applies.

[16] This is a classic, R. v. W.D. style of case, where I must first asses the defendant's evidence and if believed, or if I am left in a reasonable doubt by it, acquit the defendant, and even if I can do neither, I must still assess all of the evidence to see if I am left without a reasonable doubt in order to enter a conviction.

[17] Both parties suffered injuries, the complainant to her finger and the defendant to his arm. His description of the events is not totally consistent. It is unclear why he went to pick up the baby in the context of this discussion about cleaning up the bathroom. He does not give a complete description of the events to the 911 operator. His language as disclosed on the 911 tape is most derogatory towards his spouse although he apologizes in the subsequent police interview.

[18] Even if I was unable, for the above reasons to accept his evidence, it certainly provides a plausible explanation to the events. The pictures, of his injuries, certainly corroborate his version of events. The injuries to the complainant are not inconsistent with his version of the events.

[19] In assessing her evidence, I have some difficulty with her description of his alleged threat, in the midst of the 911 call, when it could not be heard. I also have some difficulty with her minimising of her scratching of him. It was much more than a single scratch while she was sitting on the couch. His description of it as a “clawing” is much more plausible.

[20] In the final analysis, much of their evidence was similar. The reason for the argument, the action of him picking up the child, her scratching him, his pushing her and twisting her hand. They differ in the allegation of the initial choking, the threat (not captured on the 911 tape) the extent of the scratching (his version is confirmed by the photographs) and the twisting of the hand over the phone.

[21] With regard to the charge of uttering threats, I will dismiss it as her allegation of the threat is directly contradicted by the evidence of the 911 call.

[22] With regard to the allegations of assault and assault cause bodily harm, I find that for the above reasons, I find that I am left with a real doubt about the actions of the parties. The defendant's explanation by way of self-defence for the slapping and pushing and ultimately the twisting of the hand (which certainly could have been the source of the injury to her finger) is consistent with all of the other evidence that I accept.

[23] In applying the law of self defence, I find that the Crown has not disproved that the accused was unlawfully assaulted, that the accused did not provoke the assault and that the accused did not intend to cause death or grievous bodily harm. With regard to the issue of the force used, this case has similar aspects to the R. v. C. J. O. case referred to above. I cannot move backwards from the broken finger and therefore immediately come to the conclusion that the force was excessive. I cannot accept that it occurred when the phone was taken. The force as described by the defendant was a twisting of her arm and hand as a result of being scratched (in a significant fashion) by the complainant. This caused her to fall down. In all of the circumstances of this incident I cannot find that the Crown has met its burden to disprove that the force was not more than necessary to defend himself.

[24] I therefore find the defendant not guilty on all counts.