Court File and Parties

Court File No.: 13-0456

County of Renfrew

Date: September 5, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Steven Griffin

Before: Justice R.G. Selkirk

Heard: July 17, 2013

Reasons for Judgment Released: September 5, 2013

Counsel:

• Jason Nicol, for the Crown
• Adrian Cleaver, for the accused Steven Griffin

Reasons for Judgment

SELKIRK, J.:

The Charges

[1] The accused is charged that on April 11, 2013 he assaulted Jessica Brannan, contrary to s. 266 as well as breaching a probation order by failing to keep the peace and be of good character. This latter count was not particularized.

Background Facts

[2] Jessica Brannan testified that she and the accused had been in a relationship for approximately two years and were living together in April of this year.

[3] The relationship was not going well. In October of 2012, the accused plead guilty to assaulting her and received a Conditional Discharge with a period of probation which was in effect on the day in question. The probation order contained a condition that he keep the peace and be of good behaviour.

[4] That morning they were arguing about who was going to use the accused's car. It was left with the complainant on the basis that after dropping off the accused at physical training she would drive around town putting out resumes for work. Instead of doing this, however, she returned home and went back to bed. When the accused returned home around 8:30 a.m. and discovered this, he became angry. He took a shower and came downstairs where the complainant and a visitor, Shade Felix, were sitting on the couch drinking their Tim Horton coffee which they had picked up on their way home after dropping off the accused for physical training. They continued to argue.

Divergence in Witness Accounts

[5] It is at this point that the version starts to differ between the witnesses.

Complainant's Version

[6] The complainant says that the accused swatted her coffee out of her hand. The coffee spilt all over her and the wall. She got up and followed him to the front door where she threw the dregs of the coffee on him. He went to the kitchen to wash the coffee stains off; she followed him and then shoved him to "get out of her way". He chased her to the living-room, she said, and pushed her onto the couch. He returned to the kitchen and she followed him. He then "hit me across the face with his hand, I don't know how". The side of her face hit the fridge. She said she couldn't move her jaw for a week. She did not seek medical attention.

[7] She spent the rest of the day driving Shade to school and visiting with friends. After picking Shade up at school, they went to Holly Kirbyson's around 4:00 p.m. The accused arrived and demanded his car back. They argued; he tried to block the car from leaving; she says he, "attacked" the car; they then reconciled and drove off together.

[8] She did not call the police, but thinks that Holly did.

[9] She attended the station with Shade where they were interviewed together and helped each other complete a version of events.

[10] Neither the complainant nor Shade would agree to provide a written statement.

[11] In cross-examination she agreed that when the accused threatened to call the police because she would not give him back his car that she responded, "go ahead, because you'll be the one who is leaving because you're on probation."

Holly Kirbyson's Evidence

[12] Holly Kirbyson was the next witness. She testified that the complainant and Shade came to her house in the afternoon. The accused arrived on foot not long after. She heard the accused ask for the car so he could go to his meeting. She said he hit the car with his fists on the back and the front. He asked her to call the police but she did not want to. She said the complainant was laughing and telling her to call the police which she did after speaking to her father. She said there were no threats and he did not attempt to hit the complainant.

Shade Felix's Evidence

[13] Shade Felix testified that she had slept over the night before. The complainant is a family friend and Shade has known the complainant for most of her life. She confirmed that when the accused returned from physical training in the morning that he and the complainant bickered. She said she saw the accused slap the complainant's coffee into her face and that the complainant then threw coffee on him.

[14] She saw him push her onto the couch and the complainant get back up and follow him to the kitchen where he slapped her on the face with an open hand causing her to hit the fridge. He then left.

[15] The complainant drove her to school and then picked her up after. They picked up a friend of the complainant and then went to Holly's. The accused arrived and she said he hopped on the hood to stop the car. There was yelling and then things calmed down and the accused got in the car and they drove home.

[16] In cross-examination, she said that in the past the complainant threatened to call the police to have him removed if he hit her.

[17] With respect to the slap she did not know if it was the front or the back of the hand used.

[18] She confirmed that she, the complainant and the Investigating Officer discussed the incident together, filling in details for each other. She agreed that she refused to provide a written statement.

Accused's Evidence

[19] Steven Griffin took the stand. He agreed he was angry that she kept the car and was still in bed when he returned home to change after physical training. They argued. He came downstairs, she ignored him and so he knocked her coffee over which was sitting on the arm-rest of the couch beside her. He did not think it went on her. She then followed him to door and threw coffee in his face. He went to the kitchen to wash his face and the arguing continued. He said that he told her that he was ready to call the cops but she said, "You can't, you're on probation and you'll be taken away".

[20] He punched the fridge on the way out. He said he did not hit her in any way.

[21] Later in the day, he confirmed, he was at Holly's and demanding his car so he could go to his meeting. He said he slammed the trunk, yelling, "call the cops". He sat on the hood to prevent the complainant from leaving. He then calmed down, got in the car and they went home.

[22] He indicated he received a call from the MP's and that the complainant drove him to the Military Police detachment. He denied hitting her because he knew he'd be removed from the house if he did.

Credibility Analysis and the Assault Charge

[23] The assault charge requires a credibility determination pursuant to W.D.

[24] Upon reflection, I have decided that I have no articulable reason to reject the evidence of the accused. He was consistent in chief and in cross-examination. There were no internal or external inconsistencies. His version was possible. He appeared credible. It raises a reasonable doubt.

[25] I find his version was not overcome by the Crown's witnesses because I do not have confidence in the veracity of their evidence.

[26] Problems started immediately when they were interviewed together and helped each other fill in the details. This is the very definition of collusion. That the Investigating Officer would commit such a fundamental investigative error is concerning. It raises serious questions about the training, or lack thereof, that the MP's receive. Allegations of domestic violence are serious and should be appropriately investigated. This was not an appropriate investigation.

[27] It is also of concern that neither the complainant nor Shade would provide written statements. This raises the concern that they did not want to provide independent versions because they were concerned they could not keep the details consistent with each other.

[28] There were facts which were inconsistent with each other in their evidence. The complainant said coffee was spilled all over her and the wall. Shade said it was slapped into her face. If it was in her face one would think there would be evidence of her wiping her face. There was not.

[29] The complainant did not know how the accused hit her. Shade did not know if it was front or back hand. Why would they not know? The complainant received it and Shade saw it. This is troubling.

[30] As well the complainant testified the blow rendered her "unable to move her jaw for a week". This is obviously not true as she was talking and laughing within minutes and sought no medical attention.

[31] There is also the theme that the complainant enjoyed her power over the accused. She knew and she told the accused that one telephone call from her and he would be taken away. This is a concern.

[32] Finally, I can indicate that I just do not have any confidence in the truthfulness of their stories. I simply do not believe them or at least I have a significant doubt. The assault count will be dismissed.

The Breach of Probation Count

Legal Framework

[33] The breach of probation count raises the issue as to what are the parameters of the condition, "keep the peace and be of good behaviour". There appears to be two schools of thought. What is common to both schools is that an accused can be convicted of failing to keep the peace and be of good behaviour when convicted of committing a substantive criminal offence. (See R. v. Felteau, 2010 O.J. 5198, Ontario Court of Appeal).

[34] Another proposition common to both is that an accused need not be charged with a substantive offence in order to be found guilty of Fail to keep the peace and be of good behaviour. So long as the Crown can prove beyond a reasonable doubt that a substantive offence was committed while bound by such a condition then the actus reus of the offence is made out. In R. v. Greco, 159 CCC (3d) 146, the accused was charged with a breach of his probation for failing to keep the peace and be of good behaviour, by committing an assault in another country. The issue in that case was the jurisdiction of the Ontario Court. The Ontario Court of Appeal held that Ontario did have jurisdiction to enforce the terms of a probation order even while the probationer was outside of Canada. Limitations on the ability to enforce Canadian orders abroad should not be confused with jurisdiction of the Court to prescribe orders binding probationers abroad. There was no issue, however, that the prosecution of the breach did not require a substantial offence committed or prosecuted in Canada. If the assault is proven then a conviction for breach of fail to keep the peace will follow.

The Stone Test

[35] The first school of thought defining this term is best reflected in R. v. Stone (1985), 22 CCC (3d) 249 which was then discussed in R. v. Docherty, 51 CCC (3d) 1 albeit the focus there was the mens rea required for a breach of probation. At page 9, the Supreme Court of Canada writes:

In R. v. Stone, Steele J. of the Newfoundland Supreme Court attempted to define the terms "keep the peace" and "be of good behaviour" as found in s. 663(2). In that case the appellant who was bound by a probation order was acquitted by the Provincial Court judge of the Criminal Code offence of fraudulently obtaining food, essentially because he was too intoxicated to form the necessary specific intent when he ordered the restaurant meal for which he did not pay. He was, however, convicted of breaching his probation order on the ground that his conduct at the restaurant constituted a wilful failure to be of good behaviour even if it did not amount to a criminal offence. On appeal by way of stated case to the Newfoundland Supreme Court, Steele J. was asked to determine whether the trial judge had erred when he held that the phrase

"To Keep the Peace and Be of Good Behaviour" not only includes a violation of any penal statute, federal, provincial, or municipal, but also goes beyond them in that the words are to be given their ordinary meaning.

Steele J. dismissed the appeal.

Steele J. proceeded from the view, expressed at p. 255, that the two terms, "keep the peace" and "be of good behaviour", impose "separate and distinct conditions though in certain circumstances may overlap". At page 256, he draws the following distinction:

When considering whether there has been a failure "to keep the peace", one is conscious of public opinion and its perception of peace and good order and what does or does not offend that nebulous standard. If the issue is an individual's good behaviour, the emphasis shifts to a more personal analysis of his conduct. A breach of an undertaking "to keep the peace" means a disruption or the upsetting of public order whereas a breach of a bond "to be of good behaviour" means some act or activity by an individual that fails to meet the fanciful standard of conduct expected of all law-abiding and decent citizens. It is quite possible, as I have already said, that one can fail to be of good behaviour yet not commit a breach of the peace. It is probably a matter of degree. We are only concerned with the second aspect of the statutory condition, namely, "to be of good behaviour".

Steele J. goes on to say at p. 257 that a conviction for breach of a federal, provincial or municipal statute "may be -- perhaps usually is -- but not necessarily" a failure to be of good behaviour. Conversely, conduct which does not violate any statute may nevertheless breach the condition to keep the peace and be of good behaviour. The accused in that case was found not to have had the required intent for the underlying offence, i.e., the offence of fraudulently obtaining food. Nevertheless, his behaviour at the restaurant was found to fall short of "good behaviour".

[36] This proposition that conduct that falls short of breaching a federal, provincial or municipal statue may nonetheless be a breach of a probation condition to, "be of good behaviour" is followed in a number of cases.

[37] In R. v. Harvey, 1988 O.J. 2555, Ontario Court of Justice, Megginson J. specifically cites Stone with approval.

[38] In R. v. S.(S.), 138 CCC (3d) 430, a young offender was convicted of failing to keep the peace by being defiant of teachers and disrupting classes. The Newfoundland Court of Appeal held that even though there was no assault, there was an element of physical violence present in the struggle over keys to a filing cabinet which, when viewed in the context of all the other disruptive behaviour can be said to amount to a breach of the peace. The Court cited R. v. Johnston, 1993, 90 Manitoba R. (2d) 43 where in that case even though the fight was consensual and in the presence of others and not characterized as an assault, it nonetheless amounted to a breach of the public peace leading to a conviction for failing to keep the peace.

Crown's Argument

[39] The Crown, in the case at bar, argues that even if there is no conviction on the allegation of assault that the accused either failed to keep the peace or to be of good behaviour by not only becoming physically violent with the complainant but also because of the yelling and banging on the car later in the day.

[40] The defence responds that only the allegation of assault should be considered and that if acquitted of that count then he must also be acquitted of the breach of probation count.

Particulars and Scope of Breach

[41] This issue was addressed in R. v. Gosai, 2002 O.J. 359, Ontario Superior Court of Justice, sitting as Summary Conviction Appeal, Durno J. presiding, at paragraph 16 where he writes:

The second count did not specify how the appellant breached the peace and failed to be of good behaviour. In the absence of a motion for particulars, the trial judge was not precluded from finding a breach on facts distinct from those alleged in count one.

[42] The decision goes on to recommend that in defending such a charge that particulars be sought in order to avoid this problem.

[43] Therefore, based on the above, I would find that I can take into account all of the accused's behaviour surrounding the alleged assault. I will not take into account the conduct later in the day, however, because I do not think he did anything wrong. He raised his voice and sat on his car. He was entitled to do this. The complainant was laughing. There was no breach of the peace involved nor was he not being of good behaviour. He was trying to re-possess his property which he is allowed to do. The later conduct does not assist the Crown in anyway so I need not take it into account.

Conflicting Jurisprudence

[44] The defence brought a number of cases to my attention wherein a breach of a statutory law or Court order is required to make out a breach of this nature. I will address three of them.

[45] In R. v. R.(D.), 138 CCC (3d) 405, the young person ran away from his group home on two occasions. While recognizing the two schools of thought on whether a statutory breach is required, the Newfoundland Court of Appeal held at paragraph 13 that:

I have concluded, with all due respect to the contrary position stated in Stone, that the concept of failure to "be of good behaviour" in the statutory conditions of a probation order is limited to non-compliance with legal obligations in federal, provincial or municipal statutes and regulatory provisions, as well as obligations in court orders specifically applicable to the accused, and does not extend to otherwise lawful conduct even though that conduct can be said to fall below some community standard expected of all peaceful citizens. I have come to this conclusion after a consideration of the historical development of the concepts of the obligations "to keep the peace" and "to be of good behaviour" and of the appropriate role which those concepts can be expected to play within the context of Canadian constitutional and criminal law.

[46] One of the cases cited in R.(D.) was R. v. Grey, 1993 O.J. 251, Ontario Court of Justice, Lane J. where a breach of recognizance for failing to keep the peace was under discussion. At p. 8 the Court writes:

Contrary to Stone, it is my view that the condition "to be of good behaviour" should be limited in its application to conduct which is alleged to breach some criminal, federal, provincial or municipal law, and should not extend to conduct which, while lawful, violates some community standard of behaviour expected of all peaceable citizens," i.e. "to be of good behaviour" cannot be given its ordinary meaning, but must be limited to an alleged violation of some substantive law.

The primary definition of "good behaviour" in the quotation from Black's Law Dictionary set out above refers to "lawful conduct", "behaviour such as is proper for a peaceable and law-abiding citizen", and "conduct conformable to law, or to the particular law breached." The emphasis always is on law. To give "good behaviour" its "ordinary meaning" is fraught with uncertainty. Roget's Thesaurus of English Words and Phrases, for example, indicates that "good behaviour" expresses several ideas, including: 1) conduct or deportment, 2) courtesy, good manners, and 3) virtue, moral strength, duty done. "Good behaviour" does not have one clear ordinary meaning. Its scope is sufficiently broad to encompass a wide variety of activities, many of which clearly cannot come within the scope of criminal liability. Apart from the substantive law, there is no clear community standard as to what constitutes "good behaviour". Social mores are variable depending on the subculture and particular community involved. Conduct which would be considered "good behaviour" by some elements of society might be considered "bad behaviour" by others. The fundamental principles of criminal law require that proscribed behaviour be clearly defined, so that an accused knows in advance what conduct is to be avoided. Conduct based on "nebulous" or "fanciful" standards, and conduct which is merely undesirable or offensive, short of some alleged breach of the law, cannot be a basis for criminal liability.

[47] At p. 9 the Court addresses the doctrine of vagueness. After citing the Supreme Court of Canada in the Nova Scotia Pharmaceutical Society v. the Queen, Lane J. goes on to write:

Applying this test to the case at hand, it is my view that the condition "to be of good behaviour" must be limited to behaviour which has been proscribed by law. To give "good behaviour" its "ordinary meaning", is so vague as to be beyond the scope of reasoned analysis applying legal criteria. What legal criteria, beyond an alleged breach of some existing substantive law, can, or should, be applied to bring within the scope of criminal culpability varying social mores? In my view, the only societal consensus on what activity should be proscribed by law is that which in fact has been expressly prohibited by some law. The s. 9 (a) Criminal Code prohibition against prosecution for an offence at common law confirms this approach. To interpret the condition "be of good behaviour" in this fashion provides guidance for legal debate, it provides a "workable meaning" and prevents the kind of "standard less sweep" allowing law enforcement officials and courts to pursue their personal predilections condemned by the Supreme Court of Canada in R. v. Morales, [1992] S.C.J. No 98 at p. 11-16. It is totally inappropriate for enforcement authorities to assume that criminal liability extends to acts that fall short of that standard. Were it necessary to do so, I would find that the interpretation of the condition, "to be of good behaviour" suggested by the crown is inconsistent with the accused's right to fundamental justice under s. 7 of the Charter, and cannot be correct.

[48] In R. v. Gosai, supra, the accused gave to his Probation Officer a letter addressed to his wife in which he told his wife he would beat her. He was acquitted of uttering a threat but convicted of failing to keep the peace. On appeal, this conviction was over-turned.

[49] At paragraphs 17 to 19, the Court writes:

17. Three factors must be taken into consideration in addressing alleged breaches of terms to keep the peace and be of good behaviour. First, a breach of recognizance is an offence requiring proof of mens rea.

18. Second, the phrase imports two separate conditions on the offender-keeping the peace and being of good behaviour. In most cases, a breach of the peace will also amount to a failure to be of good behaviour.

19. Third, those on probation are entitled as a matter of law to know what conduct is forbidden by the term- where the line is drawn in the sand.

[50] Under the heading, To Keep the Peace, the Court writes at paragraph 20:

A breach of the peace occurs where there is an actual assault, public alarm, or an excitement caused. A mere annoyance or insult to an individual, stopping short of actual personal violence, is not a breach of the peace. An essential ingredient is something in the nature of a riot, tumult or actual violence. The core notion of a breach of the peace is a violent disruption or disturbance of the public tranquility, peace or order: Frey v. Fedoruk (1950), 97 C.C.C. 1. It has also been described as "unacceptable conduct that unduly disrupts and violates public peace and good order," without any emphasis on any particular crime: R. v. Stone (1985), 22 C.C.C. (3d) 249 (approved in S.(S.) supra).

[51] Under the heading, To Be of Good Behaviour, the Court writes at paragraphs 27 and 28:

There are conflicting authorities as to whether the term can be breached without offending any law or regulation, or must involve conduct otherwise prohibited. Those favouring the need to offend some law or regulation include R. v. R.(D.), 138 C.C.C. (3d) 405; R. v. Grey (1993), 19 C.R. (4th) 363; and R. v. Barker, supra. The following cases found there was no need to limit the offence to non-compliance with legal obligations: M.(S.A.M.) [1994] S.J. No. 537 (Sask. Prov. Ct.); R. v. Johnson (1993), 90 Man. R. (2d) 43.

I am persuaded, that in order to comply with the third requirement noted in para [19] above, a failure to be of good behaviour must involve a breach of a legal obligation created in legislation. To permit criminal offences to be created for breaches of some fanciful standard of conduct which is expected of law abiding and decent citizens, is to set the line in the sand as one which is forever changing at the whim of the person examining the conduct. In addition, any other interpretation is inconsistent with a full mens rea offence.

[52] I agree with the reasoning in Grey and Gosai.

Application to the Facts

[53] In the case at bar there was nothing in the nature of a riot, tumult or actual violence. The public peace was not violated.

[54] In my view, however, there was a breach of failing to be of good behaviour. The legislation breached is the Mischief section of the Criminal Code, s. 430. The breach was the knocking the complainant's coffee either out of her hand or off the armrest of the couch deliberately and with intent to deprive her of her coffee. The coffee was her private property which the accused damaged. This finding is based on the accused's evidence. He intended to do so out of frustration. This is proof beyond a reasonable doubt of an offence against s. 430(1)(a).

[55] While ordinarily one might wonder if the concept of de minimis lex should be applied in these circumstances. After all, it is a very minor mischief. However, one must consider the context. This was committed by a man who has previously been convicted of assaulting the complainant just some six months earlier. He was on probation for that very assault. In my view, any expression of violence or aggression is magnified in those circumstances such that even minor, non-serious occurrences become worthy of being addressed. It is not a trivial thing, below the Court's notice. The minor nature of the offence will be addressed at the time of sentencing.

[56] The Crown has therefore proven the actus reus beyond a reasonable doubt. No issue was raised that if that was the case that the accused had the necessary mens rea beyond a reasonable doubt. The accused will be found guilty of the breach of probation for failing to be of good behaviour.

Released: September 5, 2013

The Honourable Mr. Justice Robert G. Selkirk