Court File and Parties

Court File No.: Region of Halton 09-3617

Date: October 4, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Robert Lafond

Before: Justice Lesley M. Baldwin

Heard on: May 30, 2011; May 31, 2011; August 26, 2011; April 12, 2012; June 1, 2012

Reasons for Judgment released on: October 4, 2012

Counsel:

Amy Stevenson, for the Crown

Russell Allegra, for the accused Michael Robert Lafond

BALDWIN J.:

Charges

[1] Mr. Lafond pled not guilty to 5 counts as follows:

That on or about the 4th day of August in the 2009 at the Town of Halton Hills, he did store a shotgun in an unsafe manner thereby contravening section 5(1)(b) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, contrary to section 86(2) of the Criminal Code.

[2] Mr. Lafond pled not guilty to 7 counts as follows:

That on or about the 4th day of August in the 2009 at the Town of Halton Hills, he did store a rifle in an unsafe manner thereby contravening section 5(1)(b) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, contrary to section 86(2) of the Criminal Code.

[3] Charter Applications alleging breaches of sections 7, 8, 9 and 10(b) were heard.

[4] The defence seeks exclusion of all statements made by Mr. Lafond to the police and exclusion of all the firearms seized pursuant to s. 24(2) of the Charter.

[5] Mr. Lafond also pled not guilty to a charge that he assaulted his wife, Jennifer Urowitz, on March 2, 2010, at the Town of Halton Hills.

[6] At the outset of trial, Counsel agreed that a joint trial be held on the careless storage of firearm charges and the assault charge; the Report of the Firearm Analyst including certificates relating to nine of the seized guns was filed on consent; it was admitted that those nine guns are firearms.

[7] I will deal with the firearm charges first. It is submitted that these charges rise or fall on the outcome of the Charter Rulings.

Warrantless Seizure of Firearms

[8] These firearms were seized without warrant pursuant to s. 117.04(2) of the Criminal Code which reads as follows:

Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration relating to any such thing, that is held by or in the possession of the person.

Background

[9] Ms. Jennifer Urowitz and Mr. Michael Lafond met in August of 2002. She had been leasing a horse barn in Meaford and he was a resident of the farm. She also had a house in Meaford.

[10] Ms. Urowitz has two daughters from a previous relationship; Avery born in 1996, and Blair born in 1997, both of whom resided with her.

[11] Mr. Lafond has a daughter from a prior relationship named Alexia born in 1997. Alexia lives with her mother.

[12] The parties moved from Meaford to a house with 50 acres located in Chatsworth in the Owen Sound area.

[13] In 2006, they ran a horse farm in the Ancaster area.

[14] Also in 2006, Ms. Urowitz decided to end the relationship and she moved out of the Chatsworth residence to a townhouse on Lakeshore Road in Burlington.

[15] Mr. Lafond would occasionally come to Burlington on weekends and the relationship resumed.

[16] Their son Robert Lafond was born in 2006.

[17] They began to live together again when they bought the farm located in Hornby in December of 2007. The property has approximately 25 acres and is a horse riding school.

[18] Their second son Matthew Lafond was born in 2008.

[19] On August 4, 2009 and on March 2, 2010, the parties were residing at the Hornby farm and they were running the riding school together.

Summary of the Testimony of Jennifer Urowitz – Careless Storage Charges

[20] There were problems in their common law relationship.

[21] They had been in some counselling together and she was continuing to see a personal counsellor.

[22] Ms. Urowitz identified the problem as Mr. Lafond being emotionally abusive within the home.

Just basically swearing, threatening gestures, threatening verbal, destroying personal property, that sort of thing. (Transcript May 30/11 p. 19)

[23] Ms. Urowitz testified that she was concerned with Mr. Lafond's anger. He was not physically abusive at this time.

[24] Before August 4, 2009, she had retained a family law lawyer and was planning to separate.

[25] The weekend before Tuesday August 4th, 2009, Ms. Urowitz took three of the four children (her daughter Blair and their 2 sons) for an overnight visit to her father's place in Thornbury. Avery was away at summer camp. (Tr. p. 98)

[26] Mr. Lafond was very angry that she took the children and left a message on her phone

basically threatening me with abducting my children even though I left a note at the house describing where I was and when I would be home. (Tr. p. 20)

[27] Ms. Urowitz testified that she did not think she had done anything wrong and she was concerned about Mr. Lafond's angry response.

[28] On the morning of Tuesday August 4th, 2009, Ms. Urowitz went to speak to a lady at the woman's shelter to get some counselling. Her appointment was at 9:00 a.m. (Tr. p. 98)

And through our discussion I had expressed some concerns as far as the safety of the children, and I had expressed to her that there were some guns in the house that were not in a cabinet, locked cabinet of any sort. At that point, she basically stopped our counselling session and expressed to me that I have two options, either she's going to the police or I can walk across the parking lot to the police and make the report. So that's what I chose to do. (Tr. p. 21)

The guns were all stored in the master bedroom either behind a three-door dresser or behind the door. And they were either in, I guess you would call it like a sock of some sort, like a knit sock…some behind the three-door dresser…some behind the door as well…I figured there was 10, not knowing exactly because they were all sort of in a pile. (Tr. p. 22)

[29] Ms. Urowitz testified that she did not know if they had trigger locks on them. She rarely handled the guns.

[30] When she first met Mr. Lafond they did a little target shooting with a black powder rifle. She thinks she probably fired a firearm five times in her life.

[31] She did not know if the guns were loaded.

[32] She believed that the ammunition for the guns was downstairs in another office or on top of a white armoire chest in a bedroom. The bedroom did not have a lock.

[33] There was no gun safe in the house. (Tr. p. 24; and repeated throughout her testimony)

[34] Ms. Urowitz testified that Mr. Lafond did have a gun safe at the Chatsworth property but after she had moved out to Burlington, Mr. Lafond told her that someone had broken into the house there, crow-barred the gun safe, and stolen all the guns. In cross-examination it was established that the break-in occurred in August of 2005.

[35] Ms. Urowitz testified that the lock portion of that gun safe was pryed off. It was never repaired. She saw it numerous times at the top of the stairs at Chatsworth where it remained with the door ajar. (Tr. pp. 54, 55; repeated in re-examination pp. 90, 91, 92) Ms. Urowitz was adamant that the safe was not moved to Hornsby. (Tr. p. 55) She repeated that the guns were not in a safe the entire time that they lived at the Hornsby address up to August 4, 2009. (Tr. p. 92)

[36] Defence Exhibit #1 is a black and white photograph of the gun safe.

[37] At some point, Mr. Lafond's stolen guns were returned to him, but he did not buy a new gun safe.

[38] Ms. Urowitz testified that she had prior discussions with Mr. Lafond urging him to buy a gun safe for the Hornsby property but he "sort of dismissed it like it was unimportant". (Tr. p. 25)

[39] As of August 4, 2009, their sons were 2 and 1 years of age.

[40] Two year old Robert was mobile at the time.

[41] Her teenage daughters were at the house and they often had friends over.

[42] The riding school kids ranged in age from 10 years to 16 years.

[43] What Ms. Urowitz told the police on August 4th, 2009:

I said that I was going through a separation and that I had just been to the women's shelter and had disclosed to them that there were firearms in the house that were not safely stored. And basically, they gave me two and half minutes and said we're on our way to the house. And I said can you wait five minutes till I get my children out of the house and they said no, we're getting three officers immediately and we'll be at the house as soon as we can be. (Tr. p. 25)

[44] Ms. Urowitz told the police where the guns would be. She had seen them that morning before she left the house. They were in the master bedroom where she attended to get her clothing.

[45] She told them that she was not aware if they had trigger locks. She was unsure if they were loaded with ammunition or not.

[46] She told the police that she was fearful of Mr. Lafond's reaction to seeing the police at the house as there had been some "tumultuous" times prior to this day.

[47] Ms. Urowitz testified that there had been one or two previous phone calls to the police which did not result in charges. (Tr. p. 45) In cross-examination, it was established that these were calls made after August 4th, 2009. (Tr. pp. 74, 75, 76)

[48] She wanted the opportunity to get her children out of the house before the police knocked on the door.

[49] The police told her that this was a high priority because there were firearms in the house with the children.

[50] She drove to her house and the police were behind her. She saw the police drive down the laneway.

[51] She remained at the end of the laneway for a period of time. She believes that her daughter Blair joined her at the car.

[52] Mr. Lafond was in the house with the 2 boys when the police arrived.

[53] After the police came to the house, Mr. Lafond called her on her cell phone and said

Why the hell did you do this…my guns are going to end up in an inferno in Dafasco because you've done this.

She replied that she had asked him to put the guns safely in a gun cabinet and that he had neglected to. He stated

The cops think you're a fucking joke. They're laughing. They're not sure why they're even here. (Tr.p. 29)

[54] Ms. Urowitz testified that Mr. Lafond's tone was condescending and he tried to make her look like a fool for keeping the house safe and gun-free.

[55] Ms. Urowitz testified that Mr. Lafond did not work as a hunting guide during the time they were in a relationship. He told her he use to be a hunting guide.

[56] The only discussion about him having a licence to possess the guns was when he asked her to take a picture of him because he needed to renew his licence. She could not say when that was. She did take the picture.

[57] She has never filled out a section of a gun renewal licence form (FAC) stating that as his spouse she has no safety concerns. (Tr. p. 43)

Subsequent Purchase of a Gun Safe

[58] Sometime in September or October 2009, Mr. Lafond told Ms. Urowitz that he had used some money to go and buy a gun safe from Canadian Tire.

Cross-Examination

[59] In cross-examination, Ms. Urowitz denied that before she left the house on August 4th, 2009, Mr. Lafond told her that he was going target shooting that day.

[60] She denied seeing him load up his guns at around 8:00 a.m.

[61] She agreed that when she left the house at 8:30 a.m., she left the 2 boys in Mr. Lafond's care.

[62] She agreed she had no immediate safety concerns when she left the house that morning, but there had been previous safety concerns. She had called CAS on a few other occasions. She had general safety concerns for the whole family.

[63] She denied going out to shoot with Mr. Lafond more than 4 or 5 times during their relationship.

[64] Her daughters went shooting with him once.

[65] Mr. Lafond would regularly go hunting in turkey and deer season. He did not go target shooting since they bought the (horse riding) business in 2007. (& repeated in re-examination @ p. 93)

[66] She repeated that Mr. Lafond did not work as a hunting guide during their relationship.

[67] Ms. Urowitz repeated that she left a note saying that she and the children had gone to Thornbury and would be back the next day. Mr. Lafond called her father's place when she was there visiting.

[68] She was aware that Mr. Lafond cleaned his guns 4 or 5 years ago. She has never seen him clean his guns. (Tr. p. 69 & repeated @ p. 99)

[69] In re-examination, Ms. Urowitz repeated that she had no discussions with Mr. Lafond on the morning of August 4th, 2009 about him going target shooting. She had no discussions with him about anyone else caring for the children that day. She explained as follows:

No, because I had a few doctors' appointments, and/or counselling appointments during that time, and there was very little communication going on. I always made a point of writing down the appointment schedule on a fridge calendar so that it was there, so that it didn't necessarily have to be any verbal communication as to whether I was going to be home or not. (Tr. p. 99)

Summary of the Testimony of Officer Chris Newcombe – Careless Storage Charges

[70] Officer Newcombe has been employed with HRPS since 2007. Prior to that, he was employed by PRP for 8 years.

[71] On August 4, 2009, he was on duty as the uniformed Sergeant. He was the shift supervisor for the 7 to 10 officers who would be on the road in uniformed patrol in Milton.

[72] At 1:45 p.m. he was dispatched to attend the front desk of 12 Division and assist Officer Dylan Price in this matter.

[73] He arrived at 1:48 p.m. and had a conversation with Officer Price and Ms. Urowitz.

[74] After obtaining identifying information about the parties and the children, Sergeant Newcombe was advised as follows:

The information that I had was that Jennifer had left the residence earlier in the day. She had gone to a counselling session prior to attending the police station and the two youngest children, Matthew and Robert, were at home in the Steeles Avenue residence with her husband Mike Lafond. (May 31, 2011 Tr. pp. 4, 5)

…she had some ongoing issues in her marriage as a result of her husband's anger management issues and that she had left to go to the cottage for the weekend with her children and she had returned at some point on Sunday. She stated that upon her return, Mr. Lafond was upset regarding the taking of the children to the cottage and she had been attending counselling sessions at the women's shelter regarding the marital issues. She disclosed at that time that her husband had five to six firearms within the residence that were unsecured and they were sitting in a bedroom leaning against the wall. She stated that she had disclosed this to the counsellor and the counsellor had advised her to contact the police and make a police report regarding the firearms…she didn't make any allegations regarding assaults or threats or any domestic allegations. Her concern at the time was the firearms. She stated that her husband, Mr. Lafond, was a hunter and again he has five to six guns stored unsafely in their master bedroom. She was unsure if the firearms were unloaded, but advised us that they did not contain trigger locks…she stated that the ammunition was in the residence. She was unsure of the location, but this sparked her concern because she had her I and 2-year-old sons in the residence and the guns were accessible and again she was unsure if they were loaded or not. She made mention to a previous break and enter into their residence when they lived at a Chatsworth, Ontario, address where their residence had been broken into and Mr. Lafond's firearms had been stolen previously. And she raised a concern that the guns could easily be stolen again due to the fact that they were…in the master bedroom… (Tr. pp. 6, 7; and p. 64)

[75] Sergeant Newcombe testified that given this information, his biggest concern was for the safety of the two children in the residence.

[76] He had no doubt in his mind that children of that age, if they were able to locate a loaded firearm, that they would have the ability to discharge that firearm.

Sergeant Newcombe explained that his safety concerns were "huge" for two reasons:

(1) "from a personal standpoint that now I have information that there (are) two young children in a house with firearms that have no trigger locks and we're not sure if they're loaded, but there is ammunition in the house…I've been presented with information which…I thought could be tragic if not acted upon quickly;

(2) …but also I think from a liability standpoint for not only myself, but the service…I felt that I needed to take some action on that to ensure the safety of those kids in the residence". (Tr. p. 8)

[77] Sergeant Newcombe had information that Mr. Lafond had an expired possession and acquisition firearms licence which expired April 20th, 2007.

[78] He was aware from Mr. Lafond's firearms licence number that Mr. Lafond had nine firearms registered to him with an address in Chatsworth, which was the previous address that the firearms had been stolen from.

Decision to seize the firearms pursuant to s. 117.04(2) of the CCC

[79] "At that point I decided that we would access the residence under section 117.04 of the Criminal Code, the public safety aspect which would allow me to enter the residence and search for and seize any weapon. And that's a decision that I made and Constable Price and Constable Broomer were requested to attend the residence with me". (Tr. p. 9)

[80] Sergeant Newcombe made Acting Staff Sergeant Derrick Davis aware of the situation. The Staff Sergeant had no concerns that they would be entering the residence to seize firearms without a warrant in this case.

[81] Sergeant Newcombe testified that his reasonable grounds to believe that Mr. Lafond had firearms in the residence came from two sources; Ms. Urowitz's information and the queries made on Mr. Lafond's expired firearms' licence. He found both sources to be credible and reliable.

[82] Sergeant Newcombe believed that it was not practical to obtain a warrant in this case.

[83] He explained that the delay required to obtain a warrant could have resulted in a preventable tragedy.

[84] The time involved in writing a warrant would have added 4 to 8 hours to the situation.

[85] Sergeant Newcombe testified that throughout his career he had been the affiant of 20 to 25 search warrants, and he has been involved in close to 50 other search warrants.

"A paper (warrant) such as this with an experienced officer writing it is going to take likely the better part of a couple of hours minimum. Probably two to three hours. And then due to the time of day where this call has come in, there would be no sitting justice of the peace in the Region of Halton, so we would be required to go by way of telewarrant, which quite often there's a delay at the telewarrant centre. It all depends on how many warrants are waiting in front of you. I've had experience in the last few weeks where we've had up to a…two to three hour delay. So we could be…well into the evening hours". (Tr. p. 13)

[86] The circumstances dictated going into the residence as quickly as possible to ensure the safety of the children.

…there were exigent circumstances involved and I would have not accepted the delay (to obtain a warrant) to jeopardize the safety of the children. (Tr. p. 63)

[87] Sergeant Newcombe spent 50 minutes at the station with Officer Price and Ms. Urowitz.

Search and Seizure of the Firearms

[88] Sergeant Newcombe, Officers Price and Broomer, arrived at the property at 2:56 p.m.

[89] They arrived in 3 separate cruisers, all of them in uniform.

[90] It was a rural property with a long laneway. It was raining.

[91] Approximately 2 minutes later, Sergeant Newcombe knocked on the door of the older style farmhouse.

A male party answered the door. He was carrying a young child in his arms. I asked him for his identification or a verbal identification. He ID'd himself as Mike Lafond. At that point in time, I explained why we were here, why the police were there. He stated that he understood. (Tr. p. 15)

I explained that his wife had come into 12 Division in Milton and had some concerns with the storage of his firearms. That there were firearms stored improperly within the residence and some concerns whether they may or may not be loaded. And that we were there, we were going to seize the firearms. And he stated that he understood. (Tr. p. 15)

[92] As they were standing in the front lobby, "Mr. Lafond stated that he was in the process of saving for a gun locker". (Tr. p. 16)

[93] Mr. Lafond did not say that he had a gun locker on back order. He did not say that there was a gun safe in the house.

We probably spoke with Mr. Lafond very briefly, a couple of minutes, and at that point in time I asked him where the firearms were in the residence and he directed us up to the master bedroom and advised me that he believed he had between 10 and 12 guns…he advised me that they were leaning behind the door and also in the corner beside a large pantry (armoire). (Tr. p. 16)

…for officer safety…I requested Mr. Lafond to remain on the main floor of the residence. Myself and Constable Price went upstairs to locate and retrieve the firearms and I requested Constable Broomer to remain with Mr. Lafond, again for officer safety, because at that point in time I was unsure if I was being directed upstairs and then would be directed somewhere on the main floor later because there was also firearms on the main floor. (Tr. p. 16)

We went into the bedroom where Mr. Lafond had directed us to and immediately behind the bedroom door was five long guns. They were all in large plastic carrying cases. There were no locks on the cases. There were no trigger locks on the firearms….None of the firearms appeared to be loaded, but all appeared to be operable. I also located six additional long gun firearms leaning against the wall in the corner…right beside…an armoire… (Tr. p. 17)

The six that were located leaning against the armoire…did not have any coverings at all. They were simply out in the open. (Tr. p. 57)

[94] Some of the firearms were in cotton gun socks, some were simply open with no sock. All were easily accessible. They were all unloaded and again there were no locks.

"…we did look through the entire residence and there was not a gun locker present in the residence". (Tr. p. 18)

The residence was searched to ensure that there were no other firearms present. It was a concern that Mr. Lafond's (expired) FAC stated he had 9 firearms registered to him, and 11 firearms were located in the master bedroom.

[95] Sergeant Newcombe testified that he wasn't searching the house as in opening drawers. He did a walk-through of the entire house to ensure there were no firearms present. (Tr. p. 51)

[96] He did not see any gun safe. He did not recall if any of the rooms had closets, but if they did, he opened them up. (Tr. p. 53)

Mr. Lafond turned over a large box of ammunition of various sizes which was located on the shelf on the main floor in the living room of the residence. (Tr. p. 18)

The ammunition was in an unlocked plastic accessible receptacle.

[97] All the firearms and the ammunition were transported back to the Milton police station where they were inventoried and lodged by Constable Price.

[98] Mr. Lafond was not arrested during the search and seizure process.

[99] Mr. Lafond was not given rights to counsel.

[100] Sergeant Newcombe testified that Mr. Lafond was not physically detained, except for the time he was told to remain with Constable Broomer in the kitchen area, when he and Officer Price attended upstairs. This detention was for officer safety as previously explained. (Tr. p. 19)

[101] The police were on the property for 32 minutes. They left the residence at 3:28 p.m.

Constable Price completed the return to a justice in this case as required by s. 117.04(3) of the CCC.

[102] In cross-examination, Sergeant Newcombe recalled Ms. Urowitz telling him that she intended to separate from her husband. Sergeant Newcombe was aware that there was a family law situation going on.

[103] Sergeant Newcombe was made aware that the unsafe storage of the firearms had been going on for a considerable period of time. The guns were located exactly where Ms. Urowitz said they would be. (Tr. p. 31)

[104] Sergeant Newcombe repeated the reasons why it was not practical to wait to get a warrant in this case. (Tr. pp. 35, 36, 37)

[105] When Mr. Lafond answered the front door of the porch/lobby area, he was carrying the 14 month old in his arms. At one point, the two year old was mobile in the house and Sergeant Newcombe recalls interacting with him. The well being of the children was verified.

[106] Sergeant Newcombe testified that there were other barns on the horse farm. They were not entered as Mr. Lafond told him that all his firearms were in the residence.

Summary of the Testimony of Constable Dylan Price

[107] Officer Price has been a member of the HRPS since August of 2007. On August 4th, 2009, he was assigned to uniform patrol in Milton.

[108] At 1:08 p.m., he was dispatched to attend 12 Division to investigate a domestic complaint from Jennifer Urowitz.

[109] He met her in the front lobby of the station shortly after being dispatched.

[110] He took background information from her and the complaint.

"She told me that she was currently seeking counselling sessions. She was having concerns with her common law husband Michael Lafond. She was seeking advice as to possibly ending the relationship, leaving the relationship…she was seeking advice as to custody of the children. She also expressed concerns about Michael's…increasing temper and anger management. Mrs. Urowitz advised me that they had an open file with Children's Aid Services over some issues with heavy handed discipline on behalf of Mr. Lafond and she had some safety concerns about his temper. She also expressed the concerns about the firearms within the home". (Tr. pp. 72, 73)

"She told me that…there were maybe five or six long guns, rifles and shotguns. They were in the bedroom of the home just leaning against a wall. They weren't stored in any safe…They didn't have any trigger locks or any mechanism to render the guns inoperable. There was ammunition in the home and because of his increased outrages and her concerns about his anger management, she had genuine concerns for her safety and the safety of the children…she told me that she had attempted to convince him to buy a safe for the guns to no avail. And she told me that they'd actually been stolen once before and recovered during a break and enter into their old residence. And this was all, you know, her concern". (Tr. p. 73)

[111] She did not know if the guns were loaded. She did not know the location of the ammunition.

[112] Mr. Lafond was home with their two young children.

[113] Officer Price testified that he had the above information within 20 minutes of meeting Ms. Urowitz.

[114] As per HRPS's policy on domestic related occurrences, he notified Sergeant Newcombe for direction on how to proceed. (Tr. p. 73)

[115] Officer Price testified that Ms. Urowitz did not want to give a written statement. She did not want to give police a written consent to enter the home.

"…she wanted to remain anonymous. She was concerned about possible repercussions from Lafond and she wanted to reduce her risk as much as possible…" (Tr. p. 75)

[116] Sergeant Newcombe attended the station and spoke with him and Ms. Urowitz. Officer Price was tasked with doing the background checks.

Seizure of the Firearms

[117] The officers attended the home located at 1470 Steeles Avenue in Hornby, arriving at 2:50 p.m.

[118] Officer Price was tasked with locating the firearms and securing them. Sergeant Newcombe had conversation with Mr. Lafond.

[119] Mr. Lafond greeted them at the door. He was holding the youngest son.

[120] Mr. Lafond was just outside his residence when Sergeant Newcombe informed him as to why they were there and what their purpose was.

"Mr. Lafond was accommodating and complaint with our requests". (Tr. p. 77)

[121] Officer Price did not make any notes of conversation between Sergeant Newcombe and Mr. Lafond.

[122] Mr. Lafond directed them to where the firearms were stored and where the ammunition was stored.

[123] Officer Price testified as to the location of the seized guns, ammunition, and walk-through of the house. His testimony was entirely consistent with Sergeant Newcombe's testimony noted above and it is not necessary to repeat it all in these reasons. (see Tr. pp. 78, 79, 80, 107, 108, 109, 110, 111, 112, 113, 114)

[124] Officer Price testified that he had not written a warrant at this point in his police career. He would have needed assistance to do so. Writing a warrant in this case would not be a "quick process". It was not practicable to obtain a warrant in these circumstances given the safety concerns presented to the police.

[125] Officer Price itemized each gun back at the station. He lodged them into the property locker and later submitted them to Officer Ferguson, the firearms analyst, for examination.

[126] Exhibits 4 and 5 at trial are the Firearms Examination Reports and the certificates of analyst with respect to the seized firearms.

[127] Based on the Report, the Crown is relying on 9 of the seized guns as being firearms.

[128] Three of the guns could not be tested. One gun was not tested because Officer Ferguson was not equipped or trained to test fire that type of gun; a second gun was not tested because he did not have the ammunition to test fire that gun; the third gun was not tested because the firing pins on the gun were not operational. (Tr. pp. 118, 119)

Summary of the Testimony of Constable Joshua Broomer

[129] Officer Broomer has been employed with the HRPS since January 2008. On August 4, 2009, he was on uniformed patrol duties when he received a dispatch call to assist Constable Price in this matter.

[130] He attended the Steeles Avenue address at approximately 2:40 p.m.

[131] Officer Price informed him upon arrival that an individual had made a complaint regarding possible firearms being stored improperly and illegally and he was to assist in obtaining the firearms.

[132] Sergeant Newcombe arrived shortly thereafter and requested that once they gained entry to the house, Officer Broomer was to remain with Mr. Lafond downstairs while he and Officer Price collected the firearms.

[133] They knocked on the door to the house and Mr. Lafond answered.

[134] Sergeant Newcombe explained why they were there.

[135] Mr. Lafond was "very amiable in letting us into the house" and they went in. (Transcript August 26, 2011, pp. 4, 18, 19)

[136] The conversation at the door may have been for several minutes. Officer Broomer has no notes of the conversation.

[137] Once in the house, Officer Broomer remained in the kitchen with Mr. Lafond. The two other officers went upstairs to collect the firearms.

[138] Officer Broomer was in the kitchen with Mr. Lafond for approximately 20 minutes. They chatted amiably until the firearms were collected. Mr. Lafond spoke about the home, the farmhouse, the farm, his frustrations with his estranged wife. He was holding a little child at the time.

[139] Mr. Lafond was not restrained in any way. Mr. Lafond did not ask to leave the kitchen.

[140] Officer Broomer did not give rights to counsel to Lafond.

He was not detained by me in the kitchen. I was standing there speaking with him…The purpose for me being in the kitchen was for officer safety. There were numerous firearms in the home. None of us knew the temperament of Mr. Lafond at that time or what his temperament would be after we informed him that we were collecting the guns… (Tr. pp. 12, 13)

Summary of the Testimony of Michael Lafond

Note: Mr. Lafond began his testimony on August 26, 2011 and his evidence appears from page 22 through to 114 of that transcript; Mr. Lafond completed his testimony on April 12, 2012 and his evidence appears from page 1 through to 58.

[141] Mr. Lafond was 40 years of age when he testified at trial.

[142] He has a diploma in wildlife and agriculture.

[143] He acquired a FAC when he was 19 years of age.

[144] He grew up in the rural area of Meaford and he has always been involved in outdoor activities such as fishing and hunting.

[145] He has had a number of occupations: professional hunting guide; horse farm operator; contractor; military shooter with the Canadian Armed Forces; primary care-giver for one year old and two year old sons; dog trainer.

[146] He currently lives on the Chatsworth property.

[147] His relationship with Jennifer stated in April of 2001.

[148] They originally lived together in Meaford. Then they moved to the 50 acre property in Chatsworth.

[149] At some point they lived in Lynden Ontario and then they moved to the Steeles Avenue property in 2007.

[150] In 2006 they were separated for four to five months.

Re: Careless Storage charges

[151] On Saturday August 1, 2009, he had an appointment at a bank to inquire about getting a bank loan for a truck. When he told Jennifer about it, she was very upset that he had not discussed this with her first. He went off to the appointment and when he got home Jennifer and his kids were gone. He didn't know where they were. There was no note telling him where they had gone.

[152] He called all her extended family and friends and no one knew where she had gone.

[153] She and the children returned home late Sunday, August 2nd, 2009.

[154] He was upset. He did not know where his sons where.

"I had grave concerns, you know, her just disappearing with my children." (Transcript August 26, 2011, p. 28)

"I had indicated to her and I had contacted her family members…if it ever happened again that we would report it to the police and possibly put out an Amber alert…(she) has been medicated for depression…I was very concerned". (p. 29)

[155] He had this discussion with Jennifer on Monday August 3rd.

[156] On August 4th at 7:00 a.m., his sons woke up.

[157] He got them up, dressed and fed them breakfast.

"I had a day planned to go to the range…(on) a property that I have permission to dog train and shoot my firearms on, and about 8:15 a.m. I loaded my firearms into my truck and my target support and that stuff and about 8:30 Jennifer and her daughter Blair left the property and about 9 o'clock my sons and I arrived in Campbellville."

[158] Matthew was 16 months old and Robert was 2, almost 3 years of age.

[159] He was at the property target shooting until about quarter to one when he left the property and took the boys home. (p. 31)

[160] While he had been target shooting, the boys and been playing with toy trucks in a sandpit. (p. 32)

[161] The boys had gone target shooting with him before.

"They'd actually gone hunting with me before…and target practice…probably three of four times. My older son had already started to shoot a BB gun". (p. 32)

[162] Jennifer had also gone shooting with him "too many times to count sir." (p. 32)

[163] When he got home he 'unloaded the firearms and his sons' into the residence.

"Once in the residence I moved my firearms that were still in cases from transport up to the master bedroom and then proceeded to go back downstairs to get my sons' lunch". (p. 33)

He took his guns upstairs like he always did because he was going to wash them in the bathtub.

[164] He had taken all 11 guns with him for the target shooting. All 11 guns were operative. (p. 33)

[165] He kept his gun cleaning supplies on top of the gun vault he had. The gun vault was located in the back of his son, Robert's, bedroom closet. (p. 33)

[166] Mr. Lafond stated that he put some of the heavier guns in their cases just inside in-behind the master bedroom door and he put the smaller ones to the left of the entrance door into the bedroom. None of the guns were exposed. (Tr. pp. 34, 35)

"The vast majority of them were in hard gun carrying cases…a few of the guns were in heavy cordura or canvas cases…some of them had socks but they were in cordura cases also". (Tr. p. 35)

[167] Mr. Lafond stated that none of the guns were just in socks.

[168] He fed both of the boys their lunch. He put Robert into his crib for his afternoon nap. Matthew had not been put down for his nap yet. He was waiting to put Matthew down, and then he intended to clean his guns, but the police showed up.

[169] Mr. Lafond explained that it typically takes a couple of hours to clean all of his firearms. Then "they would go back to the vault as they always are". (Tr. p. 37)

[170] Mr. Lafond stated that he had the same gun vault since his was 19 years of age. It was the same vault he had at the Chatsworth residence.

[171] The vault was damaged in the break-in at the Chatsworth house and he repaired it immediately afterward. Repairing the vault was one of the conditions of the O.P.P. to get his firearms back.

"What I did was I carriage bolted and chains to the back, drilled holes into the back and there's chains now…to latch it…with two padlocks on them." (Tr. pp. 38, 39)

[172] Mr. Lafond testified that he moved that vault from the Chatsworth property to the Steeles Avenue property and it was in the house when the police arrived.

August 4th, 2009 Firearms Seizure

[173] When he heard a knock he put Matthew down on the living room floor in front of the television and went to the door.

Three police officers were at the door and they told him that there was a public safety concern.

[174] The police did not tell him who the complainant was. (Tr. p. 47) He did not find that out until he received disclosure in this case. (Tr. p. 48)

[175] He was standing in the mudroom attached to the house at the time. The officers were standing on the walkway up to the house.

"My son Matthew then crawled into the dining room/kitchen area fussing because he's tired, I turned around and stepped back to pick him up…as soon as I picked up my son I turned around and the 3 officers were now from the outdoor door step into my kitchen". (Tr. p. 41)

[176] Mr. Lafond testified that he did not tell the police that they could enter his house.

Sergeant Newcombe then instructed him to sit down at the kitchen table.

[177] The police became "fairly aggressive and they demanded to know where my firearms were." (Tr. p. 42)

"I said that they were upstairs in the master bedroom, I had just returned from shooting". (p. 42)

[178] Mr. Lafond stated that the police just barged into his residence without asking for his permission. They did not give him Rights to Counsel.

[179] He asked if he could go upstairs because his son Robert was sleeping up there. His request was denied.

[180] The police were in his house for approximately 20 minutes. They left with all of his firearms.

[181] "They didn't search the house". (Tr. p. 44)

[182] At one point he told one of the officers that he had a gun vault.

[183] One of the officers asked him if the vault was big enough for all of the firearms.

"I said barely. That I'd ordered a new one…" (Tr. pp. 44, 45)

[184] Mr. Lafond testified that number 12 listed on the Firearms Examination Report (Exhibit #4) is an Ithica shotgun, double barrel, 10 gauge.

"It is a non-functioning firearm. It's an antique firearm. Parts cannot be purchased for it. To make that firearm functioning would be near impossible…the firing pins were not operational". (Tr. p. 64, p. 66)

[185] Number 10 on the Report, is a Traditions Lightning Bolt A.

"That is a muzzle loader, 50 calibre rifle. The day that I went shooting I was experiencing difficulties with that firearm. It was not firing properly. And before I left the property where I was shooting I removed the bolt and it was in my truck. The police seized the body of the gun itself however the bolt was in my truck that day. So, it is a non-functioning firearm the way it is". (Tr. p. 64)

[186] Number 11 listed in the Firearms Examination Report is a 25 Stephens Long rifle. It is also an antique firearm. Mr. Lafond testified that the ammunition for this gun is "almost non-existent". (Tr. p. 66)

[187] This testimony was repeated in cross-examination at pages 112 and 113.

Re: New Gun Vault and FAC Renewal

[188] Mr. Lafond testified that he "eventually" did get a new and "substantially bigger" vault. He has always had a 10 gun vault. The new one is a 15 gun vault.

[189] He had ordered the new gun vault "probably a couple of weeks" prior to August 4th, 2009 from Costco.

[190] Costco notified him on August 13th, 2009 that the vault had come in and he picked it up.

[191] A receipt, entered as Exhibit #8, shows that on August 13th, 2009 he paid for a gun safe at Costco for $379.99. (Tr. p. 61)

[192] Mr. Lafond testified that he was aware that his FAC had expired. He believed that he was protected by an amnesty.

[193] Jennifer took a photograph of him for his renewal and she signed the spousal portion of the renewal application.

[194] He signed the application on the 5th of August 2009. (Tr. p. 59) (note: the day after the guns were seized)

[195] One reference signed on the 28th of September 2008; another on October 5th, 2008. The date next to Jennifer's (alleged) signature is 10/04/08.

[196] Mr. Lafond testified that Jennifer actually signed it in 2008 and she put the date, month, year in the incorrect order. (Tr. p. 60)

[197] The application is date stamped as received by the firearms officer on August 10, 2009.

[198] The Crown entered the original FAC renewal application. It was marked as Exhibit #7.

Summary of the Cross-examination

[199] Mr. Lafond denied that it was raining during the morning of August 4th, 2009. He recalled that it was overcast and then it rained in the afternoon.

[200] He repeated that he did not invite the police into his home.

[201] Mr. Lafond stated that he fully supervised his children as he test fired the 11 guns. He stated that it is not abnormal to take all of your firearms to go target shooting. (Tr. April 12/12 p. 32)

[202] He could not say who owned the property he was shooting on. (Tr. p. 69)

[203] He and others have keys to the property and they come and go as they please. (Tr. p. 70)

[204] He could not give the address of the property. (Tr. p. 70)

[205] Mr. Lafond repeated that he had the repaired gun safe in his residence on August 4th, 2009.

[206] Mr. Lafond repeated that he had ordered a new gun safe before that day. He did it on-line and he has no proof to offer of when he ordered it. (Tr. p.p. 74, 75)

There was extensive cross-examination challenging the accuracy of the information contained in Mr. Lafond's application to renew his FAC. It was put to Mr. Lafond that he had altered the dates of signatures on the application and that he had listed his current residence as the Chatsworth residence. (see pp. 76 through to 84).

[207] Mr. Lafond attempted to explain why dates looked altered and why he did not list the Steeles Avenue address on the renewal form. I reject Mr. Lafond's testimony in this area, as it defies common sense and is inconsistent with all the other evidence.

[208] Mr. Lafond is not charged with having an expired FAC so I do not need to detail this portion of the evidence. However, it will be relevant on the Prohibition Hearing that will follow these proceedings.

[209] Mr. Lafond repeated that his guns were always stored in the gun safe located in his son's bedroom closet, unless he had just returned from a shooting.

[210] Mr. Lafond stated that he told Jennifer that he was going to go shooting that day and that is why she knew exactly where his guns would be when she went to the police. (Tr. p. 85)

[211] Mr. Lafond stated that Jennifer had gone hunting with him and 2 year old Robert. (Tr. p. 86)

[212] Mr. Lafond agreed that he did not tell the police that he had a gun safe, it was in his son's bedroom, that the only reasons the guns were out was that he had just returned from target shooting and had to feed his children. (Tr. p. 88)

[213] Later in the cross-examination, Mr. Lafond stated:

"At one point I did offer to show them (the gun safe) and they said it didn't matter, that I was in unlawful possession of the firearms and that the firearms were where they were described that they'd be and that they were seizing them…It absolutely was (said to) Sergeant Newcombe. (Tr. p. 92)

[214] He agreed that he told Sergeant Newcombe that he was saving up for a gun safe. (Tr. p. 88)

[215] Mr. Lafond repeated that he took every gun he owned with him to target shoot that day, except for the non-functioning one (#12 on the Analyst's List), and another one that a friend of his was in possession of. (Tr. p. 94)

[216] He kept the non-functioning one in the (bedroom) corner. (Tr. p. 111)

[217] He loaded all of his guns into his truck at a quarter after eight before Jennifer left. This would be after he got the boys up, dressed and fed them.

[218] The original plan was that the boys were not going to go with him. He had to scramble to get their stuff when Jennifer left the house at 8:30 a.m. He did not know she was going to leave the house. (Tr. p. 95)

[219] He then had to load the boys' toys, diapers, snacks and other supplies into the truck.

[220] Mr. Lafond stated that his boys go everywhere with him.

[221] Mr. Lafond testified that he still has the original gun safe. He took it back to Chatsworth and put it in the same place that it was before. The photograph picture entered as an Exhibit is the safe at the Chatsworth property.

[222] Mr. Lafond agreed that the photograph does not depict chains and pad locks. (Tr. p. 102)

[223] Mr. Lafond agreed that he should have taken a picture of the repaired gun safe when it was in his son's bedroom closet in the Steeles Avenue property. Then he switched the topic and started talking about how he thought that these charges were going to be withdrawn. (Tr. pp. 104, 105)

[224] Mr. Lafond stated that he did not have an opportunity to put the pad lock back on the ammunition box. He did not explain why. (Tr. p. 106)

[225] Mr. Lafond agreed that none of the guns found in the master bedroom had trigger locks on them. They were all unloaded.

[226] He repeated that the guns were not being stored there. They had been placed there for a short period of time while his sons ate lunch.

[227] Mr. Lafond was extensively cross-examined on his ability to supervise his sons while target shooting all his guns. He maintained throughout that he was able to do so. (Transcript April 12, 2012 pp. 3 through to 14; p. 49 through to 51)

[228] The two boys were 50 to 60 yards behind him when he was shooting the guns. (Tr. April 12, 2012 p. 48)

[229] During this questioning, Mr. Lafond stated that Robert had already fired a BB gun. (Tr. p. 11)

[230] It was in either April or May of 2009. (Tr. April 12, 2012, pp. 46, 47)

[231] Mr. Lafond agreed that the Steeles Avenue property did not have traditional closets in the upstairs bedroom.

[232] The Crown entered photographs marked as Exhibit #9 that show curtains being used to create closet space in the upstairs bedroom where Robert had his bedroom at the time.

[233] Mr. Lafond repeated that that is where his gun safe was when the police seized his firearms. (Tr. pp. 15 to 27)

[234] Mr. Lafond stated that he told the officers that he had just come back from shooting and that he would put his guns back into the safe after he cleaned them. (Tr. p. 27)

[235] Mr. Lafond stated that he offered to show Officer Newcombe his gun safe, but the Officer wasn't interested. (Tr. p. 30)

[236] Mr. Lafond agreed that he did not tell the Officer that he had a gun safe on order. (Tr. p. 31)

[237] He told the Officer that he was saving for a gun safe. (Tr. p. 31)

[238] When asked to explain why he did not tell the Officer that he had a new gun safe ordered, Mr. Lafond answered as follows:

"I've already explained to you a few times now. The existing vault was an eight or ten gun vault. The new one is a 14 gun vault. You have logged into Halton Police lockup, I believe, 13 firearms now". (Tr. p. 31)

[239] Mr. Lafond stated that he was not clear with his words because the Officers "barged" into his house, "demanded" he sit at the kitchen table, and started seizing his guns. (Tr. p. 31)

[240] In re-examination, photograph series marked as Exhibit #10 was entered. These are photographs taken by Mr. Lafond on December 4, 2011, showing the Chatsworth vault in behind the curtained closet in Robert's bedroom.

[241] Mr. Lafond stated that after he purchased the bigger vault, he took the old vault back to Chatsworth. Then he brought it back from Chatsworth and put it into Robert's closet and took the photograph to show that he had a gun safe in the house when his firearms were seized on August 4, 2009. (Tr. p. 58)

Summary of the Testimony of Rick Ferguson

[242] Rick Ferguson is an expert in the area of firearms with decades of experience. He prepared the Firearms Examination Reports in this case marked as Exhibits #4 and #5.

[243] The 12 guns seized from Mr. Lafond were analyzed.

[244] The first nine (as they appear in the Information) were test fired and found to be in operating condition. They met the definition of a firearm as defined in s. 2 of the Criminal Code:

"firearm" means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.

[245] "Item 10 was examined but not test fired. This item is a muzzle load design that uses black powder. I'm not equipped nor trained to test fire this type of firearm."

[246] "Item 11 was examined but not test fired. The calibre is 25 STEVENS LONG RF. I do not possess or was able to obtain the proper ammunition in order to test fire."

[247] "Item 12 was examined but not test fired. The firing pins were not operational."

[248] D/C Ferguson explained the amnesty that was put in place for individuals whose FACs had expired.

[249] Without a valid FAC, Mr. Lafond could not lawfully possess firearms, nor could he lawfully go hunting with firearms.

[250] D/C Ferguson testified that it would not be common for someone to take all of their firearms to go target shooting.

[251] Target shooting and "sighting-in" guns takes attention, time and concentration.

[252] It would be unusual for someone shooting firearms not to wear ear protection.

[253] Shooting off a sand bank (as Mr. Lafond claimed he did in this case) can be a good place to test fire firearms, however, a rock could be in there and the bullet could come back and cause serious injury or death.

[254] He finds it "shocking" that anyone would be shooting firearms with young children 50 to 60 feet away unsupervised.

[255] He concludes that it would be potentially "very dangerous" to have a child of 2 years of age firing a BB gun or going on hunting trips.

[256] He has never encountered a gun safe in a child's bedroom closet. That would be the "worst" location in the house.

[257] Based on all the red flags here, including: the unsafe storage of the firearms; the expired FAC; the domestic violence concerns; the claim that the accused was shooting rifles and shotguns with his young children unsupervised 60 feet away; the claim that his two year old had previously shot BB guns; his claim that he had hunted with his toddlers; his claim that there was a gun safe located in the toddler's bedroom – D/C Ferguson would not issue a FAC to this accused. He would not want this accused with firearms living next to him or in his community.

Charter Rulings

[258] The Crown has met its onus in establishing that the warrantless seizure of firearms from the Steeles Avenue residence was justified, both subjectively and objectively, and authorized by law pursuant to s. 117.04(2) of the Criminal Code of Canada.

[259] The testimony of Officers Newcombe and Price was detailed and consistent with respect to the information they had received from Jennifer Urowitz.

[260] Based on her information, corroborated by a FAC check, the Officers had reasonable grounds to believe that there were numerous unsafely stored firearms, possibly loaded, in the residence where Mr. Lafond was alone with 2 toddlers.

[261] The testimony of Officers Newcombe, Price and Broomer, was detailed and consistent with respect to the manner in which the firearms were seized.

[262] The firearms were found in the master bedroom of the residence exactly where Ms. Urowitz had advised they would be, and where, based on her information, they had been for many months.

[263] I accept that it was impracticable to wait to get a warrant for entry into the residence in these circumstances. Officer Newcombe's testimony on this point was thorough, thoughtful, and reliable.

[264] Accordingly, there has been no breach of s. 8 of the Charter.

[265] There has been no breach of s. 7 of the Charter for the same reasons.

[266] The defence seeks to exclude the statement made by Mr. Lafond to Officer Newcombe that 'he was saving for a gun safe'.

[267] This statement was made before the Officers entered the home. The police were not required to give Mr. Lafond Right to Counsel while outside of his property that day. Further, once they entered the residence pursuant to s. 117.04(2) of the Code, they were not required to give him Rights to Counsel in the course of the firearms seizure. Mr. Lafond was not under arrest.

[268] There has been no violation of s. 10(b) of the Charter in this case.

[269] Once in the residence, Mr. Lafond was briefly detained in the kitchen area while the officers located the firearms. This brief detention, for officer safety reasons, was justifiable in the circumstances.

[270] The officers were there to seize unsafely stored, potentially loaded firearms, in a residence where 2 toddlers were present.

[271] There has been no violation of s. 9 of the Charter in this case.

[272] The Applicant has not met his onus of proof on s. 7, 9, and 10(b) of the Charter.

[273] The Charter applications are dismissed.

Unsafe Storage Charges

[274] Although defence counsel stated at the outset of the trial and in submissions, that the unsafe storage charges rise or fall on the Charter applications, they do not.

[275] The Court heard days of testimony from Mr. Lafond as to why his firearms were in the master bedroom that day and as to his possessing a secure gun vault located in Robert's make-shift closet on August 4, 2009.

[276] I reject all of his evidence in this regard as he was often inconsistent, highly defensive and proffered explanations to the Court that defied common sense.

[277] I reject as convoluted fabrication his testimony that he took all 11 of his firearms for a target practice that day with his 2 toddler sons.

[278] I find as a fact that the small and broken gun vault was still located at the Chatsworth property on August 4, 2009.

[279] I find as a fact that there was no new gun vault on order at Costco as of August 4th, 2009.

[280] Since there will be a Prohibition Hearing following these trial decisions, it is not necessary for me to go into the evidence on these points in any more detail at this time.

[281] Accordingly, findings of guilt are registered on Counts #1, 2, 3, 4, 5, 6, 7, 8, and 9.

[282] The accused is found not guilty on Count #10, #11, #12 as there was no evidence from the Firearms Expert that these guns met the definition of a firearm under the Criminal Code.

Assault charge – March 2, 2010

Summary of Jennifer Urowitz's Testimony

[283] Ms. Urowitz's testimony on this charge was heard on May 30, 2011.

[284] She testified that the parties were separated but still living under the same roof at the Steeles Avenue property at the time.

[285] The parties were barely speaking to each other at the time.

[286] She had just returned from a trip to the Vancouver Olympics with her two oldest daughters.

[287] The incident in question occurred in the home in the office.

[288] The set-up of the small room was described in detail in the transcript from pages 35 to 37.

[289] Mr. Lafond was getting ready to take the boys out to a playground.

[290] She mentioned to him that they were low on diapers and asked him to pick some up.

[291] He said he didn't have any money and she said she didn't have any either.

[292] He put the boys in the car.

[293] She was sitting at the office desk checking phone messages.

[294] Mr. Lafond came into the office to get some money off of the desk.

[295] In an "angry and intimidating voice" he said to her:

"that I better smarten up. He's not going to put up with my fucking brats (referring to her daughters). And basically, going on and on and on about the child tax benefit, that I've just pissed it away on a trip to Vancouver. I'm not entitled to that. Half of that's for the boys…" (Tr. p. 38)

[296] She ignored him and continued to retrieve phone messages.

[297] After about a minute and a half of listening to his ranting, she turned to him and said,

"Mike, why don't you just fuck off and leave me alone". (Tr. p. 38)

[298] He said "no I won't".

[299] She wheeled the office chair over to close the door to the office.

[300] He stood in front of the door.

[301] She asked him to please close the door. He said "no, not until I'm done". (Tr. p. 39)

"And he sort of leaned into the door, put his shoulder into the door, and put his right foot down in front of the door to prevent me from shutting the door". (Tr. p. 39)

[302] She reached across with her right hand to try and close the door.

[303] He kept saying "don't push me". She had her hand on the door, not him.

[304] Then, "he basically took one step away from the door, put his foot on the bottom of the chair, and said, "I think it's about time you fuck off," and he pushed the chair out from underneath me. The chair went back and hit the patio door. I fell to the floor…I fell back…onto my backside, tailbone". (Tr. p. 40)

[305] The chair wheeled back three to four feet before it hit the patio door.

[306] As soon as she fell and hit the floor, he left.

[307] She was in shock and started to cry. She called a friend and contacted police.

[308] In cross-examination, Ms. Urowitz denied getting up off of the office chair and pushing Mr. Lafond's chest.

[309] She denied pushing the door into him.

[310] Ms. Urowitz repeated that when he leaned into the door she took her hand off of the door because she could not close it. (Tr. p. 80)

Summary of Michael Lafond's Testimony

Note: Examination in Chief heard on August 26, 2011 transcript pages 48 through to 53; Cross-examination heard April 12, 2012 transcript pages 32 through to 45

[311] Mr. Lafond agreed that on March 2, 2010, he entered the office to get money for diapers and Jennifer was seated at the desk.

[312] He was upset with her for going to Vancouver and spending the child tax credit money.

[313] Mr. Lafond testified that as he was questioning Jennifer about the money, she stood up, said that's not your fucking money and two hand pushed him in the chest.

[314] Mr. Lafond denied that he pushed Jennifer's arm away or that he kicked the chair out from under her.

[315] After she pushed him, he went into the doorway and she slammed the door against him three times. Each time the door hit him he said "don't push me". (Tr. April 12/12 p. 36)

Analysis

[316] The 3 pronged test established in the case of R. v. WD has been applied in this case.

[317] According to Ms. Urowitz, Mr. Lafond pushed her arm away and then kicked the office chair out from under her during a nasty argument about their children and money.

[318] According to Mr. Lafond, during the course of that same argument, Ms. Urowitz assaulted him by pushing him in the chest twice and then slamming the door against him 3 times.

[319] There is no other evidence to consider on this count. No injuries were observed. Ms. Urowitz testified that her tailbone was sore for a few days.

[320] I prefer the testimony of Ms. Urowitz over that of Mr. Lafond based on the days of other evidence that I have heard on the matters decided above. However, preferring her evidence over his is not the test required to find that this charge has been proven beyond a reasonable doubt.

[321] I have no doubt that a heated verbal exchange, initiated by an angry Mr. Lafond, occurred between the parties on March 2, 2010.

[322] I have no doubt that Ms. Urowitz tried to first ignore him and then to shut him out of the room to escape his angry tirade.

[323] There was no doubt some pushing and shoving took place in the doorway of the office, however, I cannot determine with moral certainty exactly what happened. The scuffle was brief. Mr. Lafond left the house and sometime that day Ms. Urowitz contacted the police.

[324] Accordingly, even though I do not accept the testimony of the accused, it does leave me in a state of reasonable doubt about what occurred in the office area of the Steeles Avenue residence on March 2, 2010.

Decision

[325] Not guilty on the count of assault.

Sufficiency of Reasons for Judgment

[326] During the course of this 5 day trial, which commenced May 20, 2011 and finished June 1st, 2012, the Court heard from 6 witnesses and numerous Exhibits were filed. All of the witnesses' evidence, the Exhibits filed, the submissions heard, and the case law tendered, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. In Halton, the fastest growing Region in Canada, judgment writing time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

[327] This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. S. (T.) [2012] ONCA 289 (OCA); R. v. H. (J.M.) 2011 SCC 45, [2011] 3 S.C.R. 197; R. v. Drabinsky 2011 ONCA 582, [2011] 107 O.R. (3d) 595 (OCA); R. v. Dinardo 2008 SCC 24, [2008] 1 S.C.R 788; R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard 2002 SCC 26, [2002] 1 S.C.R. 869.

Released: October 4, 2012

Signed: "Justice Lesley M. Baldwin"