Court File and Parties

Ontario Court of Justice

Date: 2015-07-02

Court File No.: Lindsay 13-1089

Between:

Her Majesty the Queen

— and —

Jason Hughes

Before: Justice S. W. Konyer

Heard on: May 5, 15 and June 29, 2015

Reasons for Judgment released on: July 2, 2015

Counsel:

Ms. S. Repka — counsel for the Crown

The defendant Jason Hughes — on his own behalf

KONYER J.:

Introduction

[1] Gemma Fox, the complainant in this matter, and the accused Jason Hughes were involved in a dysfunctional domestic relationship between 2001 and 2013. The relationship produced four children: Isabella, Laurel, James and Patrick, born in 2005, 2007, 2009 and 2011 respectively. During this period, their relationship was on and off, and they moved back and forth between a number of residences with a frequency that was difficult to track.

[2] Mr. Hughes is being tried before me on allegations of serious domestic violence spanning the duration of their relationship. According to Ms. Fox, he assaulted her repeatedly over the course of several years. Mr. Hughes, who testified in his own defence, denied committing the assaults complained of, and essentially claimed that he only became violent with Ms. Fox when she attacked him, which on his evidence was a frequent occurrence.

[3] I must decide whether the Crown has proven beyond reasonable doubt that Mr. Hughes committed the offences in question. In order to do so, I must assess the credibility of several witnesses, most importantly that of Ms. Fox and Mr. Hughes. Since Mr. Hughes has testified in his own defence and has denied the allegations against him, I must apply the well-known test set out by the Supreme Court of Canada in R. v. W.D. If I believe the evidence of Mr. Hughes, I must find him not guilty. Even if I do not believe his evidence, if it raises a reasonable doubt in my mind, I must find him not guilty. Finally, even if his evidence does not raise a reasonable doubt, I must still consider whether I am satisfied of his guilt based on the evidence which I do accept.

[4] In applying these principles, I must consider the evidence as a whole. I must also take into account the fact that the events which I have heard about unfolded in the context of a domestic relationship. Human relationships are not governed solely by strict rules of logic and must be understood within the context of their own dynamics. In this case, whether the evidence of Ms. Fox or Mr. Hughes is closer to the actual truth, it is clear that their relationship was one that was marred by discord and serious violence. The actions of the parties must be considered within that context.

[5] Mr. Hughes was tried on a ten count information spanning the years 2001 to 2013. At the conclusion of the evidence, Crown counsel invited me to dismiss count 10, a mischief charge from May 2012. The remaining nine counts cover five distinct occurrences, which I will deal with in chronological order.

Count 3 – Assault Between Jan. 1, 2001 and Dec. 31, 2006

[6] Ms. Fox testified that she was assaulted by Mr. Hughes in either December 2004 or January 2005, while she was pregnant with Isabella, their first child. She claimed that the assault occurred as they were entering into their apartment building at the time. Ms. Fox had opened the security door to the lobby of the building when Mr. Hughes grabbed her by the hoodie she was wearing, and pushed her into a railing. He then held her by the hoodie and walked her into their apartment. This attack was unprovoked, though she claims Mr. Hughes was intoxicated by alcohol at the time.

[7] Mr. Hughes simply claims that this event never occurred. The violence in their relationship, according to him, did not begin to manifest itself until after Isabella was born. He was not charged with this, or any of the offences being tried before me, until September 2013. It is therefore unsurprising that he is unable to offer a specific account of this incident. If nothing happened, which is the thrust of his evidence on this charge, then there is no reason for the incident to be memorable.

[8] It is entirely possible that Mr. Hughes assaulted Ms. Fox in the manner complained of on this occasion. The passage of time between the incident and any complaint, the lack of independent evidence, and Mr. Hughes' denial of any assault on this occasion together raise a real doubt in my mind that an assault happened. It would be mere guesswork, in my view, to conclude otherwise.

[9] I am therefore left with a reasonable doubt on Count 3, and Mr. Hughes will be found not guilty on that charge.

Counts 4, 5 and 6 – Assault Causing Bodily Harm, Uttering Threats and Mischief on Jan. 13, 2008

a) The November / December 2007 Incident

[10] The Crown relies on two discrete incidents which are said to make out the offence of assault causing bodily harm covered by count 4. The first occurred in either late November or December 2007, at a time when Ms. Fox's sister, Ashleigh Mather, had moved into a residence at 95 Regent St, Lindsay shared at the time by Ms. Fox and Mr. Hughes. At the time, Ms. Mather was fleeing an abusive domestic partner, and stayed temporarily in the basement of this residence.

[11] According to Ms. Fox, Mr. Hughes came home drunk one night and attacked her, as had become routine by that point in their relationship. She believes he must have forgotten that Ms. Mather was staying in the house. This attack occurred in Isabella's bedroom, and included him pulling her shirt over her head. One of her middle fingers "snapped" during this attack, causing Ms. Fox to scream in pain. Her sister then walked into the bedroom, ending the attack. Ms. Fox said she was both humiliated that Ashley had witnessed this violence, but also relieved that her victimization was now out in the open.

[12] Ms. Fox testified that her finger swelled instantly. The swelling remained for a week, and the finger hurt for a month. She never sought medical attention for this injury, though she did apparently show her father and told him that Mr. Hughes had broken her finger. Ms. Fox's father was not called as a witness.

[13] Ashleigh Mather did testify at trial, however. She testified that on November 28, 2007, the day she moved into their basement, that she heard an argument upstairs. She was holding her own daughter in her arms and went upstairs, where she saw Mr. Hughes standing over Ms. Fox, who was sitting on the living room couch breastfeeding Laurel. According to her evidence, Mr. Hughes was holding bills in his hand and screaming at Ms. Fox. He then pulled her off the couch, pulled her down the hall to Isabella's room, where he was "throwing her around the room". Ms. Mather grabbed the phone and was going to call the police, but did not complete the call at Ms. Fox's request.

[14] Ms. Mather testified that she was upset at her sister because she thought she had brought her daughter to a safe environment only to discover that this home, like the one she had fled, was rife with domestic violence. Yet Ms. Mather also testified that she had previously come to believe that her sister was a victim of repeated assaults at the hands of Mr. Hughes. Over the preceding years, she claimed to have received numerous calls from her sister after she said had been assaulted by Mr. Hughes. She also saw marks on her sister on more than one occasion, had seen her sister fleeing her home barefoot in the middle of the night while pregnant, and had seen evidence within the home broken dishes, furniture and damaged walls. If this were all true, it is difficult to understand how she would have considered the residence her sister shared with Mr. Hughes to be a safe environment for herself and her daughter.

[15] Significantly, Ms. Mather did not testify about the injury to her sister's finger as a result of this assault. She testified about seeing and photographing Ms. Fox's injuries on other occasions, though no photos were tendered in evidence. It is difficult to accept that she would not have noticed and recalled such a significant, painful injury to her sister as a result of the one violent incident she actually witnessed in person. Had Ms. Fox's finger been "snapped" resulting in the obvious pain and swelling complained of, common sense dictates that this would not have escaped the notice of Ms. Mather.

[16] For his part, Mr. Hughes testified that he and Ms. Fox argued over child care issues in Isabella's room when Ms. Fox attacked him physically, attempting to grab and scratch him. He testified that she has done this on many occasions, prompting him to respond in order to defend himself by restraining her. On this occasion he did so by grabbing her and pulling her shirt over her head. At this point, Ms. Mather came in the bedroom with Laurel, bringing the physical altercation to an end. He denied causing any injury to Ms. Fox's finger.

[17] Although it is clear that some sort of physical altercation occurred on this occasion, I cannot say with any certainty whether it occurred in the manner described by Ms. Fox, the very different manner described by Ms. Mather, or in the way described by Mr. Hughes. I cannot be sure that Ms. Fox suffered any injury at all. I have a real doubt that it was Mr. Hughes, and not Ms. Fox, who was the aggressor, and the evidence of Ms. Mather raised more questions than it answered. In short, I am simply not sure what happened on this occasion.

b) The January 12-13, 2008 Incident

[18] That is not the end of the matter with respect to count 4, however, for the Crown also argues that the assault bodily harm charge is made out based on an occurrence from January 12-13, 2008. This incident also occurred within the Regent St. home. In fact, it prompted Ms. Fox to move out of that residence permanently.

[19] According to Ms. Fox, she was home with the children on the night of January 12 while Mr. Hughes was out drinking with friends. She had phoned him, asking him to come home early because the children were sick. When he did come home, he was enraged. He assaulted her by grabbing her upper arms, slapping her and smashing her head off a wall. He then picked her up and tried to put her in a crib, telling her "if you're going to act like a baby I will treat you like a baby". When he failed to get her in the crib, he tripped her to the ground and kicked her in the tail bone. When she grabbed a cordless phone to call 911, he grabbed the phone and threw it against a wall, smashing it. He then kicked her in the shin, leaving a mark she described as a "hole" which she believes was caused by his toenail. When he left to go outside for a cigarette, she barricaded herself in the master bedroom, ending the incident.

[20] The next morning, he apparently told her to take the children and leave. He assaulted her again by pushing and slapping her, then knocking her to the ground where he slammed her head repeatedly off the floor, striking her head against the metal clasps on her purse, leaving injuries she described as "gooseggs", which would later cause her pain when she showered. He then left to go to his mother's home, telling her to be gone by the time he returned.

[21] Ms. Fox testified that she had no phone to call anyone, but communicated with her brother's wife by msn chat over a computer that afternoon. January 13 was her birthday, and apparently her sister-in-law sent her a birthday greeting. Ms. Fox replied by telling her of the attack, with the result that her mother, father and brother attended the home, moving her and the children out prior to Mr. Hughes' return. She apparently lifted her pantleg, showing them the wound to her shin.

[22] Neither Ms. Fox's father or brother were called to testify. Her mother did testify, and stated that she had never seen any injuries on her daughter. She was aware that there were allegations that Mr. Hughes had assaulted her daughter, but the only specific incident she was aware of was one where he apparently spat on the floor and then rubbed Ms. Fox's face in the spittle.

[23] Ashleigh Mather saw her sister shortly after the January 13, 2008 incident. She saw marks on her neck, marks she described as "kick marks" on her ribs and shins, and the "hole" on one shin. She took photos of these injuries, which were no longer available by the time of trial. She was told by Ms. Fox that Mr. Hughes had grabbed her, held her up against the wall by the neck, thrown her to the ground, had spat on the floor and rubbed her face in the spittle. She made no mention of being told by Ms. Fox of having her head smashed repeatedly off the floor, nor was she made aware of any injuries to her head, which appear to have been the most serious injuries that would have been inflicted in this incident.

[24] For his part, Mr. Hughes denies kicking Ms. Fox, on this or any occasion. He agrees there was an argument and physical confrontation, but maintains that it was the result, once again, of his response to her attacking him. According to him, this incident was part of a pattern where she would attack him by grabbing at his clothes or hair, or attempting to scratch his face. He reacted by grabbing her arms to restrain her, and then pushed her onto a child's bed, causing some minor damage. He denies smashing the phone, and denies threatening to kill her or assaulting her in any manner the following day. He never slapped her, smashed her head on the wall, threw her to the ground or slammed her head into the floor.

[25] I am left with a real doubt that the physical altercation between Ms. Fox and Mr. Hughes occurred in the manner she described. Her testimony is inconsistent with what she disclosed to her family, and the lack of corroboration of the large sore wounds to her head is troubling since she clearly showed all of her other injuries freely to family members. If her head had been slammed repeatedly off the floor, striking a piece of metal with enough force to leave bumps described as gooseggs that hurt when struck by water in the shower, why does she tell her family that Mr. Hughes spat on the floor and rubbed her face in it? Clearly she is not trying to protect him or minimize the violence at this point, as she has disclosed the balance of the assault. Further, if the injuries to her head were as severe as Ms. Fox claimed, common sense dictates that her pain and suffering, if not the lumps themselves, would have been obvious to the family members who rescued her and documented the other injuries. The only sensible conclusion I can reach is that Ms. Fox is being untruthful, at least with respect to this aspect of the incident.

[26] Having reached this conclusion, it is obvious that I must approach the remainder of Ms. Fox's evidence with caution. When I consider the evidence as a whole as it relates to the January 12-13, 2008 incidents, I find that I am unable to articulate any principled reason to reject Mr. Hughes' testimony. I have a real doubt as to whether it was he or Ms. Fox who was the aggressor. I cannot be sure whether whatever injuries she did have resulted from a deliberate assault or from his efforts to defend himself by restraining her. I cannot be sure whether he smashed the phone or whether he threatened to kill her. I therefore find Mr. Hughes not guilty on counts 4, 5 and 6 of the information.

Count 7 – Assault Between June 1 – 30, 2008

[27] Approximately six months later, Ms. Fox was having difficulty getting Mr. Hughes to pay child support. She says family services drew up an agreement for him to pay $1,400 per month. Although he was apparently furious at this, and although they had been living apart for six months, it was Mr. Hughes who picked her up from her new residence, drove her to family services where he signed this agreement, and then drove her home.

[28] On the drive home, she testified that Mr. Hughes became abusive. Furious about the money he now owed her, he slapped her in the face and threw coffee on her. When she refused to get out of his vehicle without the children's car seats, he threw them on the ground. After she did get out of his vehicle, he grabbed her purse, which was over her shoulder, and swung her around, eventually letting go causing her to fall to the ground. All of this happened in the morning, in broad daylight, in the parking lot of her apartment building.

[29] Mr. Hughes maintains that he never disputed the amount of the child support payments, that he voluntarily attended the family services offices to sign the agreement, that there was no argument, confrontation or violence in the car or on arrival at her apartment. In short, he simply denies that this incident ever occurred. The one objective fact that the parties agree about – that Mr. Hughes picked her up and drove her to and from the family services office where he voluntarily signed the child support agreement – is more consistent, in my view, with his claim that no assault occurred on this occasion.

[30] For the reasons developed above, and which will be further developed below, I have significant concerns about Ms. Fox's credibility as a witness. On the other hand, here too I have nothing I can point to as a principled basis for rejecting the testimony of Mr. Hughes. It follows that I have a reasonable doubt as to whether any assault occurred following the signing of this child support agreement. He is found not guilty of Count 7.

Counts 8 and 9 – Assault with a Weapon and Assault Causing Bodily Harm from June 1 – 30, 2011

[31] Despite the events of 2008, the parties continued their relationship, though they never resumed full-time cohabitation. In 2009 they had a son James, and by early 2011 Ms. Fox was pregnant with their fourth child, who was due in July. In late May or early June, while she was 35 weeks pregnant, Ms. Fox claimed that she was assaulted again.

[32] This incident occurred at the house at 95 Regent St, though by this time Mr. Hughes had moved out and Ms. Fox was living there with the children. She claims that he showed up after a night of drinking. Earlier that night, Ms. Fox had witnessed a group of people beating of a young man on the street in front of her home, and had called the police. She told Mr. Hughes about the incident and her actions. He became upset, called her a "narc" for reporting the matter to police, and proceeded to assault her. He pushed her, slapped and punched her repeatedly, smashed her head off of a wall in the living room, threw dinner plates at her, then pursued her to James' bedroom where he pinned her against the wall before throwing her on the bed, smashing the bed.

[33] As a result, she felt sick, and got up and went to the bathroom and vomited, after which the assault continued with more slaps and punches. She was struck in both eyes. She had numerous injuries, including two black eyes. She did not seek medical attention, and in fact had to cancel two weekly appointments related to her pregnancy so that her doctor would not see her black eyes. She bought sunglasses to hide her black eyes, but says that her parents saw them anyways.

[34] I heard no evidence to corroborate the missed medical appointments. Ms. Fox's mother testified that she never saw any injuries to her daughter. By this point in the relationship, 2011, rumours of abuse by Mr. Hughes had been circulating within the family for years. It is difficult to accept that Ms. Fox's mother would have failed to recall black eyes on her daughter at an advanced state of pregnancy with Mr. Hughes' child in those circumstances. Again, the only sensible conclusion I can reach, applying common sense, is that the black eyes did not exist.

[35] Mr. Hughes confirmed that there was a physical altercation between Ms. Fox and himself at 95 Regent St. that coincided with a discussion about the beating she had seen on the street. Mr. Hughes said that he was told about the street beating when he woke up the following morning. He denies calling her a "narc" for having reported this incident to the police, instead telling her that she should have woken him up to put a stop to the fight. Of course, this would have been impossible for her to do since Ms. Fox claims the beating happened prior to Mr. Hughes' arrival at the residence. In any event, Mr. Hughes was clear that there was no discussion of the incident leading to a physical altercation until the following day. He claims that Ms. Fox woke him from a sleep and began grabbing him. He shrugged her off. During their altercation he struck a television which belonged to him, causing it to fall to the floor and break. He denies striking Ms. Fox, smashing her head off the wall, throwing plates at her or throwing her onto a bed. He did acknowledge smashing plates on the floor on another occasion after he says she threw a plate at him, and he also acknowledges pushing her onto the bed during a mutual fight on another occasion, shortly after he purchased the Regent St. house in August, 2007.

[36] Having considered the evidence and lack of evidence where one would reasonably expect corroboration as it relates to these counts, I am left with a real doubt as to whether Mr. Hughes assaulted Ms. Fox on this occasion, whether directly or by throwing plates at her. Accordingly, I find him not guilty on counts 8 and 9.

Counts 1 and 2 – Assault and Breach of Section 810 of September 1, 2013

[37] By this date, Mr. Hughes was back living at the Regent St. house, while Ms. Fox had moved with the children to a residence outside of Lindsay. She retained custody of the children while Mr. Hughes exercised regular access rights. The incident which forms the subject matter of these charges occurred while Ms. Fox was picking up the children following an access visit.

[38] At the time, Mr. Hughes was bound by a section 810 recognizance that he had entered into the previous year, following an occurrence where he damaged her van by kicking the windshield. Mr. Hughes claims that he did so after an argument where she asked him to leave the van and then stepped outside and kicked him. He was charged with mischief for the damage to her van after she reported this incident to police. This charge was withdrawn upon Mr. Hughes entering into the recognizance for a period of 12 months commencing near the end of September 2012.

[39] On September 1, 2013, Ms. Fox attended at 95 Regent St. to pick up the kids. She parked her vehicle in the driveway. She noticed that the children were upset, and said that Laurel reported to her that she had been kicked by her father. She confronted Mr. Hughes about this allegation, and he responded by grabbing her by the upper arm, pushing her off a low retaining wall into some bushes. He then pulled her back out of the bushes and threatened to "bounce her head off a brick wall". Still holding her by the arms, he ran towards her vehicle, pushing her backwards. When he got to the vehicle, he let go of her left arm, opened the driver's door to the vehicle and pushed Ms. Fox inside, smashing her head off the door frame. When she reached for a phone to call 911, he slammed the driver's door repeatedly on her legs.

[40] She managed to get herself inside the vehicle and called 911. According to her, Mr. Hughes banged repeatedly on the windows. She remained in her vehicle in the driveway until instructed by the 911 dispatcher to leave and drive to the police station, which she did. She suffered visible injuries to her arms and legs, and soreness to her head, for which she did not seek medical attention. I did not hear a recording of the 911 call, which may have assisted me in determining what occurred on this occasion, nor did I hear from any police officer who dealt with Ms. Fox that date.

[41] Again, Mr. Hughes tells a radically different story. He agrees that Laurel was crying, but explains that this was a result of a dispute between she and her brother James. Both had slapped each other, and he had verbally disciplined them. They were both upset and crying when their mother arrived to pick them up. He denied kicking Laurel, but explained that he did nudge her out of the way when she was sitting in the middle of the doorway after the fight with James when Mr. Hughes was entering the home carrying two year old Patrick. He surmises that Laurel told Ms. Fox that he had kicked her, because during the pick-up of the children she confronted him, demanding to know what he had done to Laurel. He also claims that she began demanding money from him, and he refused her request as he made child support payments through the Family Responsibility Office.

[42] When he brought the last of the children's items out to her vehicle, Mr. Hughes stated that Ms. Fox began yelling at him, then poking him in the chest with her finger. He backed up until he was against the side of the house. When she continued yelling at him and poking him, he grabbed her by the arms and pushed her backwards at a walking pace to her vehicle. He opened the door and guided her into the driver's seat. He denied pushing her into the bushes, threatening to bounce her head off a wall, smashing her head off the door frame to the vehicle, or slamming the driver's door on her legs. He claims that she lifted her legs into the vehicle, locked the door and called her then-boyfriend Ryan on the phone while parked in the driveway. He knows this because he could hear her speaking Ryan's name. He agrees that he knocked on her window as he told her to leave his driveway.

[43] Once again, I am left with two conflicting versions of events which form the basis of charges, without any corroboration of either version. Listening to the recording of the 911 call placed by Ms. Fox may have assisted me in assessing her demeanour at the time, in knowing the substance of what she told the police at the time of the occurrence, and in hearing what if anything Mr. Hughes was doing or saying while she made this call. The testimony of police witnesses may have assisted me in determining whether or not Ms. Fox had injuries consistent with the assault she described at trial. In the absence of any independent evidence, I cannot say with any real confidence whether or not Mr. Hughes assaulted Ms. Fox on September 1, 2013. He is therefore found not guilty of counts 1 and 2.

Conclusion

[44] At the end of the day, I am simply left in a state of uncertainty as to where the truth lies in respect of the allegations against Mr. Hughes. There was nothing about the manner in which he gave his evidence that would cause me to reject his testimony, nor is there anything I can point to in his evidence that would cause me to reject it outright. Accordingly, his evidence leaves me with a reasonable doubt in respect of each charge.

[45] For all of the foregoing reasons, the Crown has failed to prove any of the charges against Mr. Hughes beyond reasonable doubt, and he is found not guilty on all counts.

Released: July 2, 2015

Signed: "Justice S. W. Konyer"