Court Information

Ontario Court of Justice

Date: 2014-10-14

Court File No.: Regional Municipality of Durham 998 13 RD27080

Parties

Between:

Her Majesty the Queen

— And —

Dave Dyer

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: September 3, 4, & 5, 2014

Reasons for Judgment released on: October 14, 2014

Counsel:

• Ms Bronowicki — counsel for the Crown
• Mr. Barrison — counsel for the defendant

Judgment

De Filippis, J.:

[1] The defendant and complainant have two young children together but have never formally lived as a family unit. The parties have older children from other relationships. For much of the seven years the defendant and complainant have known each other, they have argued. At times, these disputes became physical confrontations.

[2] Sharon Dimock is the 40 year old complainant. Police were called to her home, on 5 August 2013, by another tenant in the building. The complainant told the police about that day's events as well as allegations of previous abuse by the defendant. The defendant was charged with ten offences:

1. Assault – 5 August 2013
2. Theft (computer tablet) – 5 August 2013
3. Assault – 9 December 2011
4. Assault – 21 December 2011
5. Assault – 2 January 2012
6. Assault with a weapon – 8 August 2012
7. Assault – 25 August 2012
8. Assault – 1 January to 31 December 2012
9. Assault – 1 January to 31 December 2012
10. Assault – Month of May 2013

[3] I heard from four witnesses; the complainant, one of her neighbours, a police officer and the defendant. At the conclusion of the evidence, the Crown invited me to dismiss counts 3, 4, 7, 8, & 9 and the Defence acknowledged that count 2 had been proven. I accept these concessions. These reasons concern the remaining four charges. I find the defendant guilty of count 1 and not guilty of the others.

[4] Apart from the incident on 5 August 2013, I cannot confidently rely on the testimony of the complainant or defendant. In explaining this lack of confidence, there is no need to describe those other events in detail. I will set out why I accept the complainant's evidence with respect to count one and why, in any event, I would find the defendant guilty of that charge based on his version of that incident.

The Events of 5 August 2013

[5] The complainant testified that on 4 August 2013 she attended the Dyer family picnic with the defendant and their two children; Kiara (five years old) and Isaiah (one year old). Later that day, they went to a pool party with people from the defendant's soccer team. Both parties consumed alcohol during the day. She said she "had a buzz" but was not intoxicated. They returned to the complainant's apartment building at about 1 AM on 5 August 2013. The defendant carried Kiara up the stairs. The complainant followed with the baby in the car seat, as well as a cooler. On entering the apartment, the complainant expressed frustration at the load she had carried and put the baby down. The defendant accused her of dropping the car seat, rather than gently placing on the floor. The complainant concedes she may have inadvertently done so. This argument continued inside the apartment.

[6] The complainant testified that she "was probably being mouthy" and that the defendant threatened to kick her. They continued to argue as they moved into the bedroom when, suddenly, the defendant kicked her in the face. The defendant had picked up Isaiah and was holding him at the time. The complainant described the kick as "pretty hard" and that she was "dazed". She swung at the defendant but missed. The defendant accused her of hitting the baby and after putting down the child, he angrily charged at her: "He threw me on the bed and was in my face, with his hand over my mouth". The complainant broke free, bit the defendant on the lip and screamed. She said "he then went ballistic" and threw her against the wall: "I ended up with a huge goose egg". She also suffered a swollen jaw, scratched neck, and bloody lip. As this incident ended, the complainant heard Kiara shout, "Daddy, go home". The defendant took the complainant's (computer) tablet and left the apartment. Within minutes the police arrived. Later that morning photographs were taken of her at a hospital; they depict the injuries to the face and neck, as described by the complainant.

Prior Allegations of Abuse

[7] The complainant recounted previous incidents of abuse: She said that on 2 January 2012, while she and the defendant argued in her apartment, she threw his package of cigarettes out the window and "he lost it and kicked me in the stomach and punched me in the face". She added that later that year, on 8 August, while bickering with each other, the defendant "threw the key remote at my face" causing her to have a swollen lip. The complainant produced photographs taken by her that depict the injuries described by her. She testified that she was also assaulted in May 2013, during yet another argument at her apartment, in which the defendant pushed her on the couch. This dispute started after the defendant saw her looking at his text messages and they struggled over possession of the telephone. She was eight months pregnant at the time and went to the hospital because "fluid came out" of her. An ultrasound revealed nothing of concern.

[8] Apart from the confrontation on 5 August 2013, the complainant has an incomplete recollection of events. She testified they often argued over her allegations of his infidelity but cannot say if that was the dispute on the dates in question. Similarly, she cannot recall details of the physical confrontations. She denied instigating the assaults that are the subject of the charges but conceded she has "hit him first on other occasions". The complainant rejected the suggestion that she sustained a swollen lip on 8 August 2012 after dropping her tablet on her face while reading in bed. She agreed she might have said this to her parents to otherwise explain her injuries.

Witness Evidence

[9] Kayla Bell is twenty five years old and once lived in the apartment directly below the complainant. She testified that on 5 August 2013, "around 1 or 2 AM", she was awakened by sounds of "shouting and banging" in the unit above her. She could not understand all that was said but heard the complainant shout, "Get out of my house", and, "Get off me". She also heard a young child say, "Daddy, you have to go home", "mommy, call the police now, hurry", and "Stop hurting mommy". Ms Bell testified that "I could actually hear him push her up against the window" as the complainant shouted, "Get off me".

[10] Ms Bell testified she knew the complainant as another tenant and had previously seen the defendant with her. She stated that "an incident like this happened often, every time he was over there, there was an argument, but this [i.e. 5 August 2013] was the worst". It was Ms Bell who called the police on this date.

[11] P.C. Kerr is the officer who responded to Ms Bell's report. He testified that he arrived at the building in question at 1:40 AM and saw a motor vehicle leaving the premises. He investigated and saw dried blood on the complainant's lip, an abrasion on the inside of her mouth, and a swollen jaw. He also felt a large bump on her head.

Defendant's Evidence

[12] The defendant is the 42 year old father of five children. He testified that he financially supports all of them; they are in the custody of their mothers and he has access. The complainant is the mother of two of these children. The defendant is employed, an avid soccer player, and student of martial arts. He has a dated criminal record that is not relevant to my decision.

[13] The defendant agreed that his relationship with the complainant has always been difficult and they have never resided together. The parties have previously been investigated by police because of concerns about domestic violence. The defendant testified that their arguments could become violent because if he tried to leave, the complainant would grab him, take his property, or otherwise provoke him. He said he would "have to get physical with her at times".

[14] The defendant does not dispute much of the complainant's testimony about the events on 5 August 2013. He added that during the family picnic there had been tension between the complainant and his mother. Moreover, he asserted that the physical confrontation with the complainant was consensual and he acted in self defence. He testified that when he scolded the complainant for dropping the child car seat to the ground, she merely shrugged her shoulders. They argued about this as he held the baby and prepared a bottle for him. He said that, while doing so, they bumped into each other and the complainant swung at him, missed, and hit the baby. He shouted: "Tell me you just didn't do that". He put the child down and they "went at it": She bit him. He grabbed her and placed his hand over her mouth. She fell back against the wall and both fell onto the bed. As they struggled, Kiara could be heard crying. According to the defendant, this confrontation lasted "one to two minutes". He decided to leave. As he could not find his telephone, and fearing the complainant had hidden it, he took her tablet and departed. That computer was later returned to the complainant.

[15] The defendant denied all other allegations of assault in 2012 and 2013. Like the complainant, he cannot be certain of the dates in question and cannot recall details. He testified that, apart from one incident in which the complainant suffered a swollen lip, he knows nothing about the injuries depicted in the several photographs produced by her. He stated that the swollen lip was caused after the complainant dropped a tablet on her face while reading in bed.

[16] The defendant acknowledged that the immediate cause of the physical confrontation on 5 August 2013 is the fact that the complainant hit their baby in trying to strike at him. Yet, this fact was not mentioned by the defendant in his statement to police. When asked by Crown counsel why, "You failed to mention the most important event?", he responded that by the time he gave the statement he had been awake for 28 hours and his brain was "mush". He also offered this as an explanation for inconsistencies between his prior statement and trial testimony. In the former he said that he did not kick the complainant but slapped her. At trial, he initially stated in examination in chief that he could not recall if he kicked her. When asked directly by his counsel, he said he did kick her. In cross-examination he repeated this and denied slapping her. When pressed on the latter point, he added that "there might have been some contact" but "not with a closed fist". Eventually, the defendant described the following chronology: The complainant swung at him and hit the baby. They struggled over the child. As they did so, the defendant pushed her away and kicked her in the head.

[17] The defendant acknowledged that his martial arts training permitted him to kick the complainant while she was standing and he held a baby. He justified his conduct because he feared for his safety and that of his infant son; in this regard, he pointed to the complainant's agitated state and alcohol consumption. Notwithstanding this fear, he did not take his son with him when he left the apartment.

Legal Framework

[18] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v W.D. (1991), 63 C.C.C. (3d) 397. A criminal trial is more than a credibility contest between different versions of events. To support of finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence, that standard is not met if the evidence (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case: F v R.D. [2004] O.J. 2086 (O.C.A).

Analysis and Submissions

[19] There is no question that a violent altercation occurred in the complainant's apartment in the early hours of the morning on 5 August 2013. Each party claims the other was the aggressor and that they retaliated in self defence. Defence counsel submitted that the different version of events is not resolved by the evidence of Ms Bell; that is, her testimony confirms the violence but does not illuminate who might be blamed for it. Counsel argued that the kick to the head by the defendant is not excessive, having regard to the fact the complainant was "out of control" and he was holding a baby in one arm. With respect to the other charges, the Defence pointed out that the photographs, in themselves, do not meet the criminal law standard of proof and the Crown's case is not improved by the related testimony of the complainant.

[20] Crown counsel acknowledged that the complainant's "trust issues" with the defendant could cause her to be "mean and vindictive and cruel", but that she did not instigate the physical abuse on the dates in question. In this regard, counsel submitted that on all occasions, the complaint's testimony is corroborated by photographs of injuries and that with respect to 5 August 2013, this is buttressed by the evidence of Ms Bell and P.C. Kerr. The Crown argued that the defendant's testimony cannot be accepted and points to the implausibility of his version of events and the inconsistencies between his trial testimony and prior statement to police. It is suggested that these flaws taint all his evidence.

Court's Findings

[21] The relationship between the complainant and defendant is a dysfunctional one. To repeatedly argue and fight in the presence of young children is irresponsible and immature. It is prudent to approach their evidence with caution. That said, I am particularly unimpressed by the defendant's testimony about the events on 5 August 2013. Given the circumstances in question and the relative size and strength of the parties there is simply no air of reality to the claim that he had to kick the complainant in the head to protect himself and his son. Indeed, I find that the reason he did so is that he was angry with her. His reluctance to admit this true purpose is the reason his testimony is far-fetched and contradictory. His explanations for what he did, when he did it, and for what reason, fluctuated during his trial testimony and, in material respects is at odds with his prior statement to police.

[22] I agree with the Defence that the evidence tendered by the Crown does not constitute proof beyond a reasonable doubt – except for the incident on 5 August 2013. Notwithstanding photographs depicting injuries on prior occasions, I cannot confidently rely on the complainant's explanation for what occurred. With respect to the last date, however, there is independent evidence to confirm the truthfulness and reliability of the complainant's testimony. Her version of events is reasonable and internally consistent. Photographs show she suffered a cut lip, swollen jaw, and scratched neck. In addition, P.C. Kerr felt a large bump – or "goose egg" on the complainant's head. On the other hand, there is no suggestion the defendant was injured. The noises and words heard by Ms Bell leave no doubt who was the aggressor: The complainant yelled, "Get off me" and "Get out of my house". Five year old Kiara shouted that "mommy" is being hurt, that the police be called, and that "daddy" should leave.

[23] Defence did not argue – nor could he – that I should not act upon the evidence of the photographs, Ms Bell, and P.C. Kerr. Along with the testimony of the complainant, this proves that the defendant assaulted the complainant. I find he beat her because he was angry following another of their many verbal disagreements. In any event, as already indicated, I would have found the defendant guilty of using excessive force on his version of events.

[24] The Crown has discharged its burden of proof. The defendant is found guilty of assault and theft on 5 August 2013.

Released: October 14, 2014

Signed: "Justice J. De Filippis"