Court File and Parties

Court File No.: Central East 11-4012 Date: 2013-01-07 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrew Miller

Before: Justice C. M. Harpur

Heard on: November 1, December 11, 2012 Reasons for Judgment released on: January 7, 2013

Counsel:

• B. Bhangu, for the Crown
• C. Hanson, for the accused Andrew Miller

HARPUR J.:

Overview

[1] Mr. Miller is charged with assaulting Jamie Morris on July 10, 2011. The trial proceeded on November 1, 2012. The Crown called Ms. Morris, D. C. Justin Ford, the investigating officer, and Douglas Walker, a neighbour of Mr. Miller and Ms. Morris whom Mr. Miller visited and to whom he made certain utterances following the incident. Mr. Miller testified in his own behalf. Submissions were made on December 20, 2012 and I reserved my decision.

[2] Mr. Miller failed to attend court on December 11, 2012, the date initially scheduled for submissions, although required by me to do so. Mr. Miller also failed to attend court on December 20, 2012, although Ms. Bhangu for the Crown had written to him advising that he risked being found to have absconded and risked the release of a warrant for his arrest. I found Mr. Miller to have absconded and issued a bench warrant on December 20, 2012.

The Undisputed Evidence

[3] Mr. Miller and Ms. Morris had been involved in a domestic relationship, with some estrangements, for several years. Ms. Morris is the mother of children 6 and 3 years old from another relationship. She, her children and Mr. Miller were all living in Ms. Morris's Barrie apartment in July 2011. It is common ground that the morning of July 10, 2011 did not start well for the couple. Mr. Miller intended to go fishing with a friend. Ms. Morris was preparing her 2 children for their day. Mr. Miller asked Ms. Morris to drive him to the waterfront to meet the friend. Ms. Morris made it clear she was not immediately available. The two exchanged words. The exchange became heated. Mr. Miller called Ms. Morris a "fat slut", among other derogatory terms. Ms. Morris used terms such as "asshole" and "goof", the latter epithet apparently regarded by Mr. Miller as denoting a child molester.

Ms. Morris's Evidence

[4] What then occurred is disputed. According to Ms. Morris, at a time when her children were present, Mr. Miller approached her, put his face close to hers, and gave her a threatening look. She said he had previously, at the start of their verbal exchange that morning, said "I'm going to smash you". Ms. Morris said she felt threatened and "smacked" Mr. Miller on the side of his face with an open hand to ward him away from her. She said she proceeded to get her purse and to commence collecting her children. She said that approximately 10 minutes later, when she was at the counter in the apartment kitchen with her back to Mr. Miller, he approached her from behind and struck her with his fist on her right cheek, causing her momentarily to lose consciousness. She said when she regained consciousness she was on the kitchen floor on her stomach and Mr. Miller and her children were standing over her, the children crying. She became aware that she was bleeding and went to the washroom. Mr. Miller and the children followed her. He apologized. She observed her injuries in the bathroom mirror: a torn right upper lip in the area of her lip ring, bruising inside her lip, bruising around her right eye and a bruise in the middle of her forehead. Ms. Morris said she asked Mr. Miller to leave the apartment and that he did so after 15 to 20 minutes during which he continued to apologize and she dialed 911, hanging up without speaking to anyone when Mr. Miller exited the apartment. She said she tried to lock the door after Mr. Miller left but that he forced his way back in and pushed her with his hand to the floor. She said she screamed as people walked past the apartment, resulting in Mr. Miller's leaving again, this time without immediate return. Ms. Morris said she and her children stayed the night with a friend and that she returned to the apartment the next day, concluded that Mr. Miller had returned to the apartment during her absence, and called the police.

Mr. Miller's Evidence

[5] Mr. Miller provided a different version of events. He agreed that he and Ms. Morris engaged in an intemperate exchange of words and that there was an eventual physical altercation but he contended that his application of force was self-defence. According to Mr. Miller's narrative, following the exchange of words, Ms. Morris hit him with her fist, leading to name-calling but eventually to Mr. Miller offering help with the children in order to free up Ms. Morris for his ride to the fishing. Mr. Miller's chronology of the remaining events was the following: (1) Ms. Morris sloughed him off as he offered assistance; (2) he sat irritated at the kitchen table; (3) Ms. Morris approached him and struck him on the head with a collection of some 20 keys suspended from a lanyard; (4) Ms. Morris proceeded to the area of the kitchen knife drawer and the counter where her purse was located; (5) she turned and came toward him; and (6) fearing that she intended to attack him with a knife, Mr. Miller got up and hit her with his right fist. Mr. Miller said Ms. Morris then "leaned" against the kitchen counter and then descended without falling to the floor. He said that seconds later she got up, retrieved an unattached chair leg nearby and threw it at him, striking him in the chest. He said he apologized, although he felt they were both in the wrong. He said that she decided to call 911, a step to which he had no objection, and that he then left.

The Issue

[6] Mr. Hansen for Mr. Miller submits that this is a "he said, she said" case and that, in accordance with the guidance provided in R. v. W. D., Mr. Miller's evidence should leave reasonable doubt as to whether the altercation unfolded in such a manner as to afford Mr. Miller the defence of self protection. For the reasons which follow, I have rejected Mr. Miller's version of events and accepted that of Ms. Morris and I find Mr. Miller guilty of the assault.

My Assessment of Ms. Morris's Evidence

[7] Subject to the qualifications subsequently described, Ms. Morris seemed to me a reliable witness, consistent in her testimony and not given to evasion or exaggeration. She volunteered at trial (and presumably in her police statement) that Mr. Miller had repeatedly attempted to apologize after the assault, information and evidence she need not have provided if her motivation was simply to vilify Mr. Miller regardless of the truth.

[8] Her evidence was not without weaknesses. She initially denied and then acknowledged in cross-examination having made a second call to 911, this one on July 11, 2011 when she returned to her apartment and concluded that Mr. Miller had entered and removed his property. In this call, Ms. Morris spoke to the 911 operator. Her complaint was of a break and enter by Mr. Miller, not his assault.

[9] She also acknowledged in cross examination not having included in her narrative in her examination in chief (i) having complained to the police on July 11, 2011 that Mr. Miller owed her money or (ii) having complained to the police that Mr. Miller grabbed her before he struck her on July 10, 2011. She described these testimonial mis-steps as "having gapped".

[10] Further, in chief, Ms. Morris said she visited Mr. Miller "once or twice" after the incident whereas in cross-examination, the number of visits was described as "2 or 3". Finally, Ms. Morris testified in re-examination that, knowing Mr. Miller was under a prohibition from contact with her, she had not only visited him but called the police 2 or 3 times to complain of Mr. Miller's telephone calls to her after July 2011, a complaint which, Mr. Hansen submits, should be regarded as hypocritical and manipulative given her additional admission of, herself, having initiated contact in this period.

[11] Having considered these aspects of the record, I do not regard them as undermining Ms. Morris's credibility as to the assault itself. The matter of the grab by Mr. Miller on July 10, 2011 could reasonably be subsumed for a victim by the considerably more dramatic feature of the blow and the resulting injuries. Ms. Morris's forgetting the second 911 call and adverting in it to a break and enter but not to the assault is puzzling. However, Ms. Morris did describe the assault to D.C. Ford as soon as he arrived on July 11, 2011 – there was no significant delay in her complaint. Further, according to DC. Ford's testimony, Ms. Morris did not refrain from telling him that she herself had struck Mr. Miller in the altercation. Ultimately, her statement to the police was consistent with her evidence at trial. The inconsistency between one or two and two or three post-incident visits with Mr. Miller does not strike me as material. Finally, as to Ms. Morris's complaints about contact from Mr. Miller, from listening to the recording of the trial evidence, I note her wording that these complaints were made as a result of Mr. Miller "calling and he wouldn't stop". It is not clear to me from this language that Ms. Morris's complaints were directed at contact from Mr. Miller (which would suggest a willingness to use the law when it suited her and to ignore the law when it did not), as opposed to excessive contact or harassment, a different kind of complaint. Thus, I do not regard Ms. Morris's evidence about the altercation as tainted or less worthy of belief by reason of these calls to the police.

[12] In sum, Ms. Morris did not emerge unscathed from the witness stand but the reliability of her description of the incident remained intact at that stage of the trial.

My Assessment of Mr. Miller's Evidence

[13] I did not regard Mr. Miller's description of his altercation with Ms. Morris as credible. This is not as a result of simply preferring Ms. Morris's evidence. A number of additional factors militated against the defence version of events.

[14] Foremost is the fact that, neither in his apology to Ms. Morris following the assault, nor in Exhibit 2, Mr. Miller's letter left for Ms. Morris after the altercation, nor in the description of the incident given by Mr. Miller to Mr. Walker immediately following the incident, does Mr. Miller make any reference to its most significant aspect according to his description at trial – that is, his fear that Ms. Morris was approaching him armed with a knife. Mr. Miller did not suggest in his evidence that he gave this explanation to Ms. Morris. Mr. Walker said that Mr. Miller said nothing to him about a knife and, rather, that Mr. Miller said he had "just punched out my old lady". Mr. Walker said he questioned Mr. Miller about this remark and received a further response "Yeah. I just hit Jamie". I can see no reason for Mr. Miller to have refrained from advancing for Mr. Walker the exonerating explanation he advanced at trial if it were true. Even Mr. Miller's version of his remarks to Mr. Walker (in which he says he told Mr. Walker he "hit", not "punched out", Ms. Morris) contains no reference to concern about a knife. Similarly, Mr. Miller makes no mention of this highly relevant fact in his letter to Ms. Morris, despite his apparent willingness to engage there in some self-justification for his conduct: in the letter, he says, simply, "I don't like getting hit. No one does" and makes reference simply to Ms. Morris's "temper tantrum".

[15] Secondly, Mr. Miller's evidence that, prior to his administering the blow, he had been struck "hard" on the head by 20 keys swung at him by Ms. Morris is impossible to credit, given the negligible injuries to his person observed by D. C. Ford, whose entirely neutral evidence I accept. D.C. Ford said that at the time of arrest he could see no injury whatever to Mr. Miller and that, when he later interviewed Mr. Miller on July 11, 2011, he observed a small red mark like a pimple, without swelling, on the right side of Mr. Miller's head. Mr. Walker, who also seemed a reliable witness, did describe a "small goose egg" injury on Mr. Miller's head when Mr. Miller came to see him. Nonetheless, neither a goose egg nor a blemish is consistent with a hard blow with 20 swung keys.

[16] Third, although Mr. Miller testified that he was struck in the chest by a chair leg thrown by Ms. Morris and that he sustained a 1 to 2 inch bruise from its impact, he said nothing about this to D.C. Ford. I accept Ms. Morris's denial of such an occurrence.

[17] Fourth, Mr. Miller's description of the way he struck Ms. Morris is doubtful. He said she approached head-on, that he stepped to his left and that he struck her with his right fist on the right side of her face. I regard as implausible this sort of unnecessary maneuvring by a man who thinks he is being descended upon by a woman wielding a knife. Far more compelling and consistent with the injury to Ms. Morris's right cheek and eye is a blow struck from behind and to the right side, as she described.

[18] Fifth, Mr. Miller has an adult criminal record beginning in 2005 with 5 entries for breaches of obligations to the administration of justice and 3 for offences of dishonesty. Although I regard the fact of these offences as having only modest weight in assessing Mr. Miller's credibility, they have some impact on my assessment of his view of the solemnity of his oath or affirmation.

[19] Sixth, despite Mr. Miller's denial, I accept Ms. Morris's evidence that she refrained from attending the originally-scheduled trial date on April 10, 2012 because of a call or calls from Mr. Miller discouraging her from doing so. I also accept Ms. Bhangu's submission that this effort at discouragement by Mr. Miller constitutes some evidence of consciousness of guilt, as does Mr. Miller's failure to attend for his trial on December 11 or December 20, 2012.

[20] Thus, I do not accept Mr. Miller's description of the altercation with Ms. Morris and I am not left in doubt by it. The evidence at trial which I do accept, as indicated, leaves me in no doubt that Mr. Miller committed the assault with which he is charged.

Released: January 7, 2013

Signed: Justice C.M. Harpur