Court File and Parties

Court File No.: Regional Municipality of Durham: 998 11 27149 Date: 2013-09-03 Ontario Court of Justice

Between: Her Majesty the Queen — and — Owen Thomson

Before: Justice J. De Filippis

Heard on: November 28, 2012; June 12 & July 23, 2013

Reasons for Judgment released on: September 3, 2013

Counsel:

• Mr. S. Kherha for the Crown
• Ms U. Kancharla for the Defendant

Judgment

De Filippis J.:

[1] Owen Thomson is charged with assaulting Marta Mendoza-Lopez on three occasions; November 22 & 23, 2011 and March 11, 2012. The latter count was dismissed on consent at the conclusion of the trial. I find the defendant not guilty of the other two counts. These are my reasons.

[2] The complainant came to Canada four years ago from Guatemala to visit her daughter. She obtained a six month extension to her visa while her daughter attempted to sponsor her to remain. This attempt failed as her daughter did not have the requisite financial means. During this time the complainant met the defendant at a grocery store at which they both worked. They dated and about two months later, the complainant moved into the defendant's apartment. He paid most of the common expenses and sponsored her to stay in Canada.

[3] The complainant testified she loved the defendant and the relationship was a happy one. She worked a few days a week and otherwise cared for her grandchildren. However, about one year later, the defendant "changed"; he was often angry and occasionally threatened to "call immigration". The complainant was terrified by the prospect that he would "cancel the sponsorship" and she would have to return to her homeland. This situation persisted in the months leading up to November 2011 and the parties frequently argued.

[4] The complainant testified that on November 22, 2011 she argued with the defendant over the use of the television. The defendant told her to change the channel she had been watching and reminded her that the apartment was his. The complainant went to bed but was followed by the defendant who slapped her on the face. She began to cry and he left to spend the night in another room. The next day, after the defendant returned from work, he offered the complainant Chinese food – one of her favourite meals. She testified that when she refused to eat, the defendant grabbed her by the shoulders and struck her in the head with his hand, causing her to fall to the floor, after which he kicked her. The complainant reacted by clutching his testicles and ripping his T-shirt.

[5] The police were called by a neighbour who heard noises in the apartment. Later, the complainant's friend, Barbara, told her to take pictures of her injuries and suggested "this could help you with immigration". The photographs show light bruises on the complainant's arms.

[6] After the defendant's arrest on these charges, the complainant lived with her daughter. The defendant continues to be her immigration sponsor. The complainant admitted that she did not inform immigration, as required, that she no longer lived with the defendant and that she was working illegally as a janitor. She denied dating the defendant so that he would be her sponsor and fabricating these charges when his deteriorating financial situation caused her to believe he would no longer be useful. She insisted they loved each other and does not understand why he changed over time. Indeed, the complainant conceded she once slapped the defendant because she was jealous he might be interested in another woman. In any event, she denied that the defendant grabbed her by the arms after she clutched his testicles and ripped his T-shirt.

[7] The defendant testified that when he met the complainant "it was love at first sight". He sponsored her to stay in Canada and she shared his apartment. He said that in the following year he experienced significant financial stress and was asked to vacate the apartment because of arrears in rent. He denied any abusive behaviour or using the complainant's immigration status as a means to exploit her. He added that she became upset at his inability to continue to provide for her financially.

[8] The defendant conceded that on November 22, 2011 he argued with the complainant over the television but he denied slapping her. He said they also argued the next day. The defendant testified that he came home from work to find about 30 boxes of clothing and other material in the living room. These boxes had been prepared by the complainant for shipment to her son in Guatemala. He told the complainant the landlord was due to arrive to discuss the arrears in rent and he did not want the living room cluttered with the boxes. He said that when he began to move them into another room, the complainant shouted "no touch my boxes" and grabbed his testicles. In response he grabbed her by the arms and pushed her away. The defendant stated that he still loves the complainant.

Legal Analysis

[9] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This standard of proof is set out in the often cited decision by the Supreme Court of Canada in R v W.D., 63 C.C.C. (3d) 397. A helpful discussion of the applicable principles is set out in R v DiPucchio, 2009 ONCJ 39:

15 I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

16 While to lawyers this may all sound familiar, it is important that the parties understand that this is not a civil case where the result may be determined on the basis of which of the two competing versions of events I prefer, or which is more probable, or which of the two essential witnesses appears more credible. As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No. 3177, at para 5 noted recently:

W.D. and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of a Crown witnesses to that of defence witnesses.

17 I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:

"However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused."

18 Proof beyond a reasonable doubt means what it says. There is, thus, nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused, or the evidence of any other defence witnesses, or the absence of evidence, the charge must be dismissed: R. v. Lifchus.

[10] The Crown claims the defendant used his immigration sponsorship to control the complainant and the assaults are part of that dynamic. The Defence claims the complainant believed that being the victim of domestic abuse would mean Canadian authorities would not deport her. There is an evidentiary basis for both claims but neither is certain. On the other hand, it is clear that his concern about finances and her worry about immigration status caused tension and both resorted to physical violence. In all the circumstances, it would not be safe to convict; the Crown has not discharged its burden of proof and the defendant is entitled to the benefit of my doubts about the matter.

[11] The charges are dismissed.

Released: September 3, 2013

Signed: Justice J. De Filippis

Footnote

[1] The delay in completing this trial should be explained: The trial length was not accurately estimated when the matter was fixed for a hearing. In addition, the second day of trial was originally set for January 25, 2013 but did not proceed because the defendant was ill.