Court File and Parties

Court File No.: Brampton – 14-2324

Date: 2015-04-30

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen Counsel: A. Fedak-Tarnopolsky, for the Crown

- and -

Seon Thompson Counsel: O. Osmak, for Mr. Thompson

Heard: April 14, 2015

Reasons for Judgment

Schreck J.:

I. BACKGROUND

[1] Lamoura Hannan and Seon Thompson met when he was 15 years old and she was 19. They had a relationship that lasted approximately 11 years and out of which three children were born. The relationship ended in February 2013, although the parties continued to cohabit for a few months longer.

[2] On February 24, 2014, during a meeting to transfer custody of their children, the parties got into a verbal altercation. Although there was no physical altercation, Ms. Hannan contacted the police and, later that day, attended the police station. While speaking to the police, Ms. Hannan recounted to them events that took place on June 3, 2012. Based on her version of those events, Mr. Thompson was charged with assault causing bodily harm. The central issue to be determined in deciding whether that charge is proven is credibility.

II. EVIDENCE

A. The Case for the Crown

[3] Ms. Hannan was the sole Crown witness. She testified that on June 2, 2012, she attended a birthday party for a friend from work. She parked her car at her mother's house and was driven to the party by a friend. Her explanation for doing so was that she was not comfortable driving in the area where the party took place. In the early morning hours of June 3, 2012, her friend returned her to her mother's house.

[4] Ms. Hannan testified that Mr. Thompson had been calling her and asking her where she was. She told him that she was at her mother's house. According to her, upon learning this he immediately drove to her mother's house to "intercept" her, leaving the children unattended. Ms. Hannan's mother's house was about five minutes away from her and Mr. Thompson's home. Upon arriving, he threw her into his car and took her home, leaving her car at her mother's house.

[5] Upon arriving at home, Mr. Thompson took Ms. Hannan's telephone and began to look at photographs on it. Upon seeing photographs taken at the party, he realized that men had been present and this made him angry. He dragged her down to the basement and closed the door so that the children would not hear them. He then pushed her to the floor. Mr. Thompson continued to inspect the contents of Ms. Hannan's phone. Every time he saw a picture which upset him, he straddled her and punched her repeatedly in the abdomen or choked her. She estimated that in total, he punched her at least 20 to 25 times. When he choked her, he did so for about 30 seconds causing her to be unable to breathe. When she told him to stop because he was killing her, he did.

[6] According to Ms. Hannan, the assaults in the basement lasted for approximately an hour. At some point, their son, who was almost two years old, came downstairs. Mr. Thompson let Ms. Hannan get up and she picked up her son, took him to her bedroom and placed him on the bed. Mr. Thompson followed and, once the son was on the bed, continued to assault Ms. Hannan. As before, he continued to inspect the phone and punch Ms. Hannan in the abdomen when he saw something that angered him. While this was happening, her son sat beside Ms. Hannan and cried.

[7] Eventually, Mr. Thompson stopped assaulting Ms. Hannan, walked to a corner of the bedroom, and telephoned his mother. According to Ms. Hannan, he told his mother that he had been assaulting his spouse and said "You're not going to believe what I found on this girl's phone."

[8] After the phone call, Mr. Thompson continued to strike Ms. Hannan. Mr. Thompson's mother drove to their home from Scarborough. Upon arriving, she removed the child from the bedroom. Afterwards, Mr. Thompson attempted to strike Ms. Hannan but his mother stood in the way to prevent him from doing so and pleaded with him to stop. Eventually, he calmed down and stopped the assaults.

[9] Later, Mr. Thompson's mother took Ms. Hannan to her mother's house to retrieve her car. She stayed at her mother's house for a while and then returned home.

[10] According to Ms. Hannan, she and Mr. Thompson reconciled over the next few days. She was unsure about whether she should remain in the relationship, but decided that she would when he agreed to get some counselling. He did in fact obtain counselling, but in Ms. Hannan's view it was not long enough.

[11] Ms. Hannan testified that she had "very light" bruising on her abdomen and sides as a result of being repeatedly punched by Mr. Thompson. She also had marks on her neck from being choked and heavy bruising on her thighs that were the result of Mr. Thompson sitting on her. She took photographs of these injuries. The photographs were tendered as exhibits. They depict some redness and swelling on the neck and significant bruising on the thigh. There were no photographs of Ms. Hannan's abdomen or sides.

[12] Ms. Hannan was in too much pain to go to work on Monday and may have missed Tuesday as well, although she could not recall. When she did return to work, she was still in pain and having difficulty breathing as a result of her injuries. She relayed what had happened to her employer, who advised her to go to the hospital. Ms. Hannan did so, but told the staff there that the injuries were the result of a fight she had had with her sister.

[13] Ms. Hannan acknowledged that police were called by her in August 2013 following a verbal altercation between her and Mr. Thompson and that she did not take the opportunity to tell the police about the assaults in June. She had contact with the police again in September 2013, apparently after a complaint was made about her by Mr. Thompson, and she again did not tell them about the June incidents.

B. The Defence Case

[14] Mr. Thompson testified. He is 28 years old, has no criminal record, and is employed full time performing audits for a manufacturing company. His evidence in-chief was very brief and consisted primarily of denials of having assaulted Ms. Hannan or having caused the injuries depicted in the photographs.

[15] In cross-examination, Mr. Thompson confirmed that he had obtained counselling for anger management in 2012. Although he could not recall exactly when, he believed it was in July. He acknowledged that he did so at the request of Ms. Hannan, but denied that there had been any precipitating event leading to her request. When asked why he went to anger management counselling, he initially responded that it was a benefit available to him through his employer and he felt he should take advantage of it. He denied that he had a problem controlling his anger, but felt that it was one of those things where "you might as well do something to keep it under control". Later in his testimony, he said he went because "Sometimes you think like things are always your fault, so you want to do things because you think it's you".

[16] Mr. Thompson confirmed that Ms. Hannan had attended a party in June 2012. He said that she had sent him a photograph of her and her friends at the party. He stated that he knew that there would be males at the party and denied that the party was the subject of any argument between him and Ms. Hannan. Mr. Thompson knew that Ms. Hannan went to the party from her mother's house. He suspected that she did so because she was "seeing somebody", but denied taking any steps to investigate his suspicions. He denied, however, that he was jealous.

[17] Mr. Thompson denied intercepting Ms. Hannan at her mother's home after the party and maintained that he was at home with the children when Ms. Hannan returned.

[18] Mr. Thompson acknowledged knowing that Ms. Hannan attended the hospital a few days after the party. When asked if he knew why she did so, he said "she was sick or she wasn't feeling well or something" and that she had come home smelling like "weed and alcohol." According to him, Ms. Hannan did not tell him why she went to the hospital because it was sometimes her practice to hide things from him.

[19] When Mr. Thompson was asked whether he observed any bruising on Ms. Hannan, he responded that she has "low iron" and fair skin, so she bruises easily. He said that if she had bruising, she would wear pants in order to hide it from him.

[20] Mr. Thompson's mother, Rebecca McKay-Thompson, was also a defence witness. Her examination-in-chief was also very brief. When asked in-chief whether her son had called her early in the morning in June 2012 and told her that he had been assaulting Ms. Hannan, she replied that "I don't have a recollection of that." She denied ever intervening in a physical altercation between her son and Ms. Hannan.

[21] In cross-examination, she was again asked whether she had gone to her son's home in the middle of the night in relation to an altercation between him and Ms. Hannan. She again replied that she had no recollection of doing so. When it was suggested to her that she went there and removed the child from the bedroom, she replied that she did not remember this happening. She testified that she had memory lapses at times. Later in her testimony, Ms. McKay-Thompson positively denied that she had ever gone to her son's home in the middle of the night or very early in the morning.

[22] Ms. McKay-Thompson did recall one occasion on which she had driven Ms. Hannan to her mother's house to retrieve her car. She could not say whether this had occurred in June 2012.

III. ANALYSIS

A. Overview

[23] There is, of course, no onus on Mr. Thompson to establish his innocence. Rather, the Crown bears the onus of proving his guilt beyond a reasonable doubt. To ensure that this burden is properly applied, I intend to follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. I will begin by considering the Mr. Thompson's evidence and, if I believe it, he must be acquitted. Even if I do not believe his evidence, I must consider whether it leaves me with a reasonable doubt and, if so, he must be acquitted. Even if I completely reject Mr. Thompson's evidence, I must still consider whether the evidence relied on by the Crown satisfies me beyond a reasonable doubt of Mr. Thompson's guilt. If, and only if it does can there be a finding of guilt. I must also consider the evidence of Ms. McKay-Thompson. While her evidence is not dispositive of whether or not an assault took place, if accepted it undermines a significant aspect of Ms. Hannan's account.

B. The Defence Evidence

(i) The Defendant

[24] I have some difficulty with Mr. Thompson's evidence. First, his explanation for obtaining anger management is problematic. He first suggested that he went for anger management simply because he felt he should take advantage of benefits offered by his employer. Later, he acknowledged going at the request of Ms. Hannan and because he felt that "things are always your fault, so you want to do things because you think it's you". He denied, however, that he believed that he had anger management issues. In my view, Mr. Thompson was not being forthright about his reasons for attending anger management. His reasons for doing so changed throughout his testimony. If he did not believe that he had anger management issues, then there would have been no reason for him to attend anger management counselling.

[25] I also have some difficulty with Mr. Thompson's evidence about Ms. Hannan's visit to the hospital. He acknowledges that he was aware of her attendance at the hospital a few days after the party. When asked if he knew why she went to the hospital, his response was "I remember her . . . she was sick or she wasn't feeling well or something like that." He added that "all I know is one time she came home she smelled like weed and alcohol, that's about it, so she went to the hospital." It was never suggested to Ms. Hannan in cross-examination that she went to the hospital because of her consumption of alcohol or marijuana, nor does it make sense that she would attend the hospital for this reason days after the party. Also, at this point Ms. Hannan and Mr. Thompson were still cohabiting and in a relationship. It would be most unusual in these circumstances for Mr. Thompson to not have knowledge of why his spousal partner attended a hospital. His evidence on this point was evasive.

[26] In addition to the foregoing, Mr. Thompson denied seeing any bruising on Ms. Hannan, but volunteered that she had "low iron" and fair skin and therefore bruised easily. I find his explanation for the cause of bruising he claims not to have seen to be self-serving. The bruising in the photographs that were entered as exhibits was pronounced and obviously not the result of "low iron".

[27] For the foregoing reasons, I do not believe Mr. Thompson's testimony, nor does his evidence raise a reasonable doubt.

(ii) The Defendant's Mother

[28] With respect to Ms. McKay-Thompson, her testimony was, for the most part, ambiguous. She seemed hesitant to deny ever having attended her son's residence in the circumstances described by Ms. Hannan and would initially only say that she had no recollection of doing so. She eventually stated that she had never gone over there in the middle of the night or intervened in a physical altercation, but only after being asked several times if it was possible that she had done so. Moreover, she admitted to having issues with her memory.

C. The Crown's Evidence

(i) The Complainant

[29] The fact that I do not accept the defence evidence does not end the matter. I must still determine whether the evidence adduced by the Crown proves the charge beyond a reasonable doubt. The Crown's case relies entirely on the testimony of Ms. Hannan.

[30] Ms. Hannan's testimony was given in a straightforward manner and she was unshaken in cross-examination. Although she did not report the assault after it happened or when she had an opportunity to do so during subsequent interactions with the police, her explanation for failing to do so was reasonable. Initially, she was still hopeful that her relationship with Mr. Thompson would survive. Even after they separated, she was not emotionally ready to make the allegation.

[31] The fact that there are ongoing family law proceedings between Ms. Hannan and Mr. Thompson is of potential relevance. In cases such as this, there is always a possibility that a party is using the criminal process to obtain an advantage in the family law proceedings. In this case, however, I have heard very little evidence about the nature of the family law proceedings. I know only that they have to do with the children. I have heard no evidence as to how the outcome of the criminal proceedings might have some bearing on the family law proceedings. In these circumstances, the existence of the family law proceedings does not assist me in assessing the credibility of the parties.

[32] All of that said, there are two areas of evidence that cause me some concern with respect to Ms. Hannan's testimony. The first is her explanation for leaving her car at her mother's house. Her stated reason for doing so was that she did not wish to drive in the area where the party was located. However, on her own evidence her home was only a five-minute drive from her mother's. It is difficult to understand why she could not be picked up from her own home to be driven to the party. Her explanation for parking at her mother's house makes little sense. I recognize that this is a peripheral point unrelated to the allegations. However, the fact she was not forthright in her testimony is a cause for concern.

[33] The second area is more significant. Ms. Hannan testified that Mr. Thompson punched her repeatedly in the side and abdomen. According to her, he did so at least 25 to 30 times over the course of an hour while they were in the basement and continued to do so after they went upstairs. However, according to her, these repeated and prolonged assaults caused only "light bruising" to her side and abdomen. Although she saw fit to photograph her own neck and thighs, she produced no photographs of her sides or abdomen which, according to her, were the primary locations of Mr. Thompson's blows. In these circumstances, I can only conclude that her account of Mr. Thompson's assaults on her was, at the very least, significantly exaggerated.

[34] Based on the foregoing, I feel that I must approach Ms. Hannan's evidence with caution. In my view, I should accept it only where it is confirmed by other evidence. I find that aspects of Ms. Hannan's testimony are confirmed in three ways: (1) the photographs depicting injuries; (2) evidence of her attendance at the hospital and (3) evidence of Mr. Thompson's attendance for anger management counselling.

(ii) The Photographs

[35] Some of the photographs (Exhibits 1A and 1B) show clear marks on Mr. Hannan's neck that appear to be consistent with her description of Mr. Thompson having grabbed her there. I recognize that I have only Ms. Hannan's word for when the photographs were taken or what they are of. Nonetheless, in my view they provide some confirmation of her account of having been choked.

(iii) The Complainant's Attendance at the Hospital

[36] Mr. Thompson acknowledges that she attended the hospital a few days after the party which she described as being the catalyst for the assault. I have already explained why I reject his suggestion that she went to the hospital to be treated for issues arising from alcohol and marijuana consumption. Her attendance at the hospital is consistent with her having sustained injuries.

[37] In considering the evidence of Ms. Hannan's attendance at the hospital, I am not considering her testimony that she told the hospital personnel that she had sustained injuries. This would amount to a prior consistent statement and, as such, would not be admissible for its truth. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272 at para. 7; R. v. M.(A.), 2014 ONCA 769, 123 O.R. (3d) 536 at para. 15. In any event, there is no independent evidence as to what Ms. Hannan told the hospital staff.[1]

[38] However, the fact that Ms. Hannan attended the hospital soon after the party is not in dispute. Her attendance at the hospital, as opposed to what she said to the hospital staff, is non-assertive conduct. Non-assertive conduct may or may not be hearsay. Whether or not it should be treated as such depends on whether or not hearsay dangers are present, concerns about trial fairness, and the availability of cross-examination: R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399 (C.A.) at para. 134. In this case, hearsay dangers were not present as the complainant was available to be cross-examined. While she was cross-examined on the fact that she had falsely told the hospital staff that her injuries were the result of an altercation with her sister, it was not suggested to her that she did not attend the hospital out of a genuine need for medical treatment. Accordingly, in these circumstances I find her attendance at the hospital to be some confirmation of her account of having been injured around the time she attended the party in June 2012.

(iv) Mr. Thompson's Anger Management Counselling

[39] Mr. Thompson acknowledges that soon after the date on which he was alleged to have assaulted Ms. Hannan, he began to attend anger management counselling. His explanations for doing so make little sense. His attendance is consistent with him having been involved in some event that made the need for anger management counselling apparent.

[40] Thus, the photographs confirm that Ms. Hannan was choked, the hospital visit confirms that she was in need of medical attention in early June 2012, and Mr. Thompson's decision to undergo anger management counselling at around that time confirms his involvement in some event triggered by his anger. Based on the foregoing, I am satisfied beyond a reasonable doubt that Mr. Thompson assaulted Ms. Hannan, although I am not satisfied that the assault was exactly as she described. The Crown is not seeking a finding that the assault caused bodily harm.

IV. CONCLUSION

[41] For the foregoing reasons, Mr. Thompson is found guilty of the lesser and included offence of assault.

Justice P.A. Schreck

Released: April 30, 2015

[1] The Crown initially sought to introduce hospital records at trial but later withdrew the request.