Court File and Parties

Court File No.: Region of Durham 998 11 21171 Ontario Court of Justice

Between: Her Majesty the Queen — and — Thomas Panhuyzen

Before: Justice J. De Filippis

Heard: February 6 & 24, 2012

Reasons for Judgment: April 25, 2012

Counsel:

• Ms Jackson for the Crown
• Mr. Daley for the Defendant

Reasons for Judgment

De Filippis, J.:

[1] Thomas Panhuyzen is charged with assaulting his wife on 14 July 2009 and with assaulting his son on 6 February 2011. Both offences are said to have occurred in the family home in the Town of Ajax. I have concluded the defendant is guilty of one charge. These are my reasons.

[2] The defendant and Michelle Armstrong have been married for 14 years. They have three children aged 13, 10 and 7. Ms Armstrong cared for the children while the defendant worked as a branch manager for a major bank. For the past several years the marriage has been in difficulty and the parties are headed for divorce. The family court proceedings have been acrimonious with respect to custody, access, and the division of property. The alleged assaults, although two years apart, were reported at the same time.

The Incident of February 6, 2011

[3] Tyler Panhuyzen is the oldest child of this couple. He testified that his relationship with his father has not been a good one and believes he has been unduly disciplined by him; punishment usually meant confinement to his bedroom. He stated that on the evening in question, he and his brother were wrestling with each other and he struck his head on the couch. The defendant told both boys to turn off the television and go to bed. Tyler did not obey but sat beside his father, who was using the laptop. The defendant said "get the fuck away from me" and then repeatedly said "fuck off" when Tyler refused to move. The defendant twice pushed him away with an open palm; he first pushed the side of his head and then his nose/forehead area. With respect to the latter, Tyler said, "I don't know what his intentions were as this is a self defence move that can kill you". He ran from the room with a bloody nose. His mother took a photograph of the injury. That picture is consistent with the injury described by Tyler. Tyler testified that he has had numerous nose bleeds since the incident and added, "I think he did some sort of damage". Tyler has never sought or been taken to a doctor about this matter.

[4] Tyler Panhuyzen testified he "refused to stop crowding" the defendant because his father was angry and cursing and said he "eventually would have got out of Dad's face". He said the defendant was "acting like the big boss and trying to walk over me". Before being struck, Tyler called his father a "mother fucker" and afterwards said, "If you break my nose, I'll kick your ass". Later that evening, the defendant apologized for "being physical" and Tyler said, "I'm sorry too".

[5] Michelle Armstrong was upstairs with her daughter when the preceding events occurred. She testified that it was "Super Bowl Sunday" and the defendant, described as being in a good mood, planned to watch it with his sons while enjoying pizza. The two boys had been "rowdy" during the evening. At about 9 PM her youngest son came to bed and she heard the defendant shout, "Get the fuck away from me". She ran downstairs where she saw Tyler holding his bloody nose and heard him say, "If you break my nose, I'll kick your ass". She told her husband, "You will not hurt the kids" and took Tyler away. The defendant followed, wanting to talk but Ms Armstrong ignored him. She heard the defendant say, "We shouldn't be married anymore". After seeking advice from her sister and a police officer, who was formerly married to her cousin, Ms Armstrong reported this incident to the police. She testified that although the defendant "babied" the other two children, he and Tyler "never really bonded".

The Incident of July 14, 2009

[6] When Ms Armstrong brought Tyler to the police station, she also reported an incident that happened on July 14, 2009. She testified that by that date her marriage was already in trouble and that during an argument in their bedroom, the defendant slapped her in the face causing her lip to become swollen. Ms Armstrong moved to another part of the room but the defendant pulled her out of the way, causing bruises on her arm. Soon after, the defendant's mother arrived at the home. Ms Armstrong said she would leave. Instead, the defendant's mother did so. Two days later, Ms Armstrong took pictures of her lip and arm; the injuries depicted are consistent with her testimony. She testified that although she disclosed this matter to her parents and counselor, she did not go to the police because the defendant was the family's sole source of income and she wanted to "work on the marriage". Ms Armstrong denied being "hysterical" during this incident or that the defendant acted in self defence because she had pushed him. She said, "I did not touch him in any way".

Defence Evidence

[7] The defendant acknowledged that the argument with his wife in July 2009 became physical but denied slapping her or grabbing her arms. He testified that she became hysterical and pushed him and that he pushed her back. He did not observe any bruises or marks on his wife and cannot explain the injuries depicted in the photographs. When cross-examined on this point, he stated that he pushed his wife by the cheek. The defendant agreed with much of the evidence given by Tyler with respect to the incident two years later. However, he denies swearing at this son and claimed that apart from the obscenities admitted by Tyler, his son also called him a "fucking asshole" and a "fucking cocksucker". He testified that he was startled by this and when Tyler refused to leave as instructed he grabbed him by the wrists to take him to his room. He added that Tyler pulled back during this confrontation and he inadvertently struck him in the nose.

[8] Susanne Panhuyzen is the defendant's mother. She admitted having a poor relationship with Ms Armstrong. She testified that in the summer of 2009, her son called her to say he had had an argument with his wife. He said, "I did not hit her". He was upset so Ms Panhuyzen went to their home. She left when Ms Armstrong made it clear she was not welcome. She testified that Ms Armstrong did not appear to be in distress and that she did not observe any injuries to her.

Legal Principles

[9] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A).

[10] There is no suggestion that the photographs taken by Ms Armstrong are not related to the events in question and I accept that they are authentic pictures of injuries sustained. They constitute independent and reliable evidence that can be significant in a case such as this.

Analysis of the Assault on Tyler

[11] I need not resolve issues of credibility with respect to the defendant and Tyler Panhuyzen. They generally agree about what happened and the defendant admits he caused his son to have a bloody nose. The only meaningful difference is that the defendant claims this was an accident. No reasonable parent would tolerate the disrespectful language and conduct exhibited by Tyler. It would be especially unfortunate if the latter was merely following the example set by his father. In any event, in these circumstances, the defendant was entitled to physically move his son. Under no circumstances is it justifiable to strike a child in the head. That said, I am not persuaded that the defendant intended anything more than to push Tyler away. I do not find that action to be an intentional assault. In this regard, it is clear Tyler persistently crowded his father and it is reasonably possible that in responding to this the defendant inadvertently injured his nose. The Crown has failed to prove guilt in this matter.

Analysis of the Assault on Michelle Armstrong

[12] I come to a different conclusion with respect to the other charge. Ms Armstrong testified in a careful and candid manner about a specific and simple event in her life. Her evidence about the assault was not successfully challenged. She said she did not touch her husband during the argument but that he hit and clutched at her. The defendant said he pushed her after she assaulted him. Even accepting this version, it would not have been justifiable to strike her in the face. The defendant's concession, late in his evidence, that he pushed her by the cheek makes no sense; the injury depicted in the photograph is not consistent with a push, unless it was a hard one akin to a slap. If so, that is a disproportionate response. In any event, I must reject the defendant's evidence on this point. Unlike the scenario involving Tyler, there was no crowding here such that an accidental strike to the face is reasonably possible. Moreover, the injury to Ms Armstrong and circumstances of the confrontation she and her husband described supports her version of events and undermines that of the defendant. I have no doubt that the couple argued and the defendant angrily slapped her and then grabbed her by the arms to move her away.

[13] In coming to this conclusion, I am not troubled by the testimony of the defendant's mother that she did not witness any injuries on the part of Ms Armstrong. That she did not see bruising on the arm is of no moment but she could not have missed or forgotten the swollen lip. Either that swelling had not yet emerged or Ms Panhuyzen has not been truthful. It is also worth noting that her statement that Ms Armstrong showed no sign of distress, while consistent with the latter's evidence is contrary to that of the defendant who said that, shortly before, she was hysterical.

Verdict

[14] The defendant is found guilty of assaulting his wife, but not his son.

Released: 25 April 2012

Signed: Justice J. De Filippis