Court File and Parties
Court File No.: 13-7342 DV
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Janusz Salagan
Before: Justice Sharman S. Bondy
Released: August 14, 2015
Counsel:
- B. Manarin for the Crown
- J. Dobrowolski for the Accused
BONDY J.:
REASONS FOR JUDGMENT
1: THE PROCEEDING
[1] The accused, Janusz Salagan, stands charged with two counts of assault against his wife, Danuta Salagan on August 5, 2013. The first count alleges that the accused assaulted his wife using a weapon and the second count alleges that the accused in committing an assault caused bodily harm to his wife.
[2] In the course of this trial, the court heard from Olivia Misiag, Marcin Salagan, Danuta and Janusz Salagan and the police officer called to the scene. Mr. and Mrs. Salagan testified with the aid of a Polish interpreter. Neither is fluent in English. Their primary language is Polish and their son, Marcin, communicates with them in Polish. Olivia Misiag is Marcin's long-time girlfriend. Marcin and Olivia are fluent in both Polish and English and testified in English.
[3] At the outset of this case, the theory of the Crown's case was that the accused intentionally threw a cup at Mrs. Salagan as she was exiting their kitchen and in the course of so doing he broke her arm. No issue was taken that the break to Mrs. Salagan's arm constitutes bodily injury or whether the cup was a weapon for the purposes of the Criminal Code of Canada. The issue at all times was whether the facts herein constitute an assault within the meaning of s. 265(1)(a) or (b) of the Criminal Code.
2: THE FACTS
[4] The evidence reveals that August 5, 2013 was the civic August holiday weekend. Mr. and Mrs. Salagan are both in their 50's and married for over 33 years. Apparently Mrs. Salagan was unhappy that her husband chose to spend the holiday without her and instead intended on going out fishing with his buddies on the Monday. According to her, he usually works weekends so she was upset that she would be alone once again. According to Mrs. Salagan, she wanted to prove to her husband what it was like to be home by himself so on the Saturday of the long weekend Mrs. Salagan asked her son and Olivia to drop her off at a local motel where she stayed until she returned home by taxi some time before dinner on Monday, August 5, 2013. The evidence reveals Mrs. Salagan did not tell her husband where she was going and he did not know where she was throughout Saturday and Sunday. According to the accused, he tried to find out her whereabouts from mutual friends and contacts but to no avail. According to the accused, he could not reach his son by phone to locate his wife. So, in spite of his missing wife, the evidence reveals he went out fishing with his buddies on the Monday and he was not concerned enough about his wife's whereabouts to contact the police.
[5] When the accused returned home at around five o'clock on August 5, 2013, the two did not talk and the accused did not enter the kitchen where his wife was. Mrs. Salagan prepared dinner. They sat on the living room couch and ate from a coffee table in front of the couch. The living room and the couch are a short distance from the dining room and kitchen. The court is not aware of their specific dimensions. The evidence reveals that Mr. and Mrs. Salagan usually do not eat or gather in the kitchen as the kitchen is very cramped and the dining room table isn't available to eat from. The photographs filed confirm this. The evidence reveals that the accused had a few beers before he returned home; Mrs. Salagan admitted she had two drinks preceding dinner and they both drank beer during dinner. According to Marcin Salagan, both his parents were intoxicated when he attended at their home on August 5, 2013 prior to the police authorities being contacted by him. The officer called to the scene did not agree with that assessment of their sobriety but the evidence was not clear how much time or opportunity the officer had to make this determination. In any event, on the issue of their intoxication, the court accepts the evidence of Marcin Salagan in this regard as he impressed the court as someone who was familiar enough with his parents to draw the conclusions he did.
[6] The photographs filed on this trial reveal that there is a television and stand located at the far end of the couch in the Salagan living room. The accused testified that he was watching television at one point prior to dinner. Both the accused and Mrs. Salagan agree that the accused was sitting at the far end of the couch near the television set and both agree that the accused could not see where Mrs. Salagan was inside the kitchen from where he was sitting. There is a full wall separating the kitchen and living room. The living room opens into a small dining room area and from that area there is an opening into the kitchen. The evidence revealed that there is a second opening or exit from the kitchen but the photographs and the testimony did not reveal where it is precisely located.
[7] The photographs reveal that all of these rooms have small dimensions and there is much clutter on the furniture, coffee table, dining room table and couches located in the living room. In response to Crown counsel's question, the accused speculated that from where he sat on the couch there was a distance of twenty feet from that location to the far wall in the dining room. The back wall of the dining room is located behind the opening to the kitchen. Whether or not the estimate of twenty feet is a proper estimate or sheer speculation the court cannot conclude. The court finds that all these distances and rooms are all close together, of close proximity to one another.
[8] The evidence also reveals that at some point either before or after Mrs. Salagan went into the kitchen to wash dishes, the accused and Mrs. Salagan started to argue over where she was over the weekend. Around this same time, the accused had gone into the kitchen and made himself a cup of coffee and returned to the same location on the couch in the living room to drink the cup of coffee from a ceramic coffee mug. The evidence of both Mrs. Salagan and her husband was that she would not answer his questions about her whereabouts for the weekend. At one point, she poked her head out of one of the kitchen exits and said she would not tell him and nobody could force her to. The evidence at p. 61 of the transcript of proceedings reads that Mrs. Salagan said the following when responding to what happened: "I was in the kitchen. I was washing the dishes. My husband was asking me where I was, I didn't answer. After a while I was leaving the kitchen. At this particular moment my husband, being angry, threw the cup, not knowing that I would be leaving the kitchen."
[9] When the accused testified in chief he said that when he threw the cup he "...wanted to accent his aggravation and to make his wife a bit scared." In the same sentence he said, "I wanted to break this cup throwing it against the wall." He testified that he could not see his wife when he threw the cup and both the accused and Mrs. Salagan's evidence was that he was sitting the entire time at the same location, at the far end of the couch, where he could not see his wife either inside the kitchen nor did he see her exiting when he threw the cup.
[10] The accused also had this exchange with Crown counsel during cross-examination, at page 89 of the transcript:
Question: And when you say that you wanted to make her a bit scared, you wanted your wife to know that you meant business, that you were angry and that you wanted answers to where she was, correct?
Answer: Yes.
Question: You wanted her to believe that you had the present ability to harm her if she didn't start coming up with answers?
Answer: I never planned to harm her.
Question: But you wanted her to believe that you had the present ability to harm her? That's why you threw the cup, to make her scared?
Answer: But it was not my plan to injure her.
Question: All right, but I want you to listen to my question and not just answer whatever you want to say. My question was, you wanted your wife to believe that you had the present ability to harm her, so that the message would be sent to her regardless of whether or not you actually harmed her?
Answer: Yes.
[11] It should be noted that the evidence does not reveal the nature or extent of the argument between the accused and Mrs. Salagan leading up to the cup throwing incident. The court hypothesizes that that is likely due to the fact that the Crown's case was initially based on the premise that the accused intentionally threw the ceramic cup at his wife when she exited the kitchen. Mrs. Salagan's evidence did not corroborate that theory. The evidence also revealed that the accused conceded in chief and again in cross examination that he was angry and got angrier when his wife did not respond to his questions. The evidence also reveals that Mrs. Salagan was confident and comfortable enough in the argument with her husband to repeat that she would not tell him where she had been and nobody could make her do so.
[12] Despite the accused's admission that he was angry and getting angrier at his wife, the evidence did not reveal that there was any type of heated or threatening exchange, words, acts or gestures between them except for the throwing of the cup. Moreover, the evidence is not clear when Mrs. Salagan poked her head out of the kitchen or when in relation to doing that, she exited the kitchen. All in all then, the only answer the court has to all of this is her simple response, as set out in paragraph 8 above that after she responded to her husband, she was in the kitchen "for awhile" and then exited and at that particular moment she connected with the cup that was thrown.
[13] As for the evidence of Olivia Misiag and Marcin Salagan nothing much turned on what they had to say. The court would describe both of them as reluctant but truthful witnesses; each of them had significant trouble remembering what happened as these events took place two years prior to this trial. Olivia had little recall about the events of the weekend and did not contribute in any meaningful way to the summary of these facts. Regarding Marcin Salagan, the adult son, the court had the impression he was somewhat estranged from his parents and was upset that he had been called to intervene in their dispute. The court repeats, he described both of them as intoxicated the evening in question. In response to the Crown's suggestion, he denied his father had a drinking problem and offered that his father was likely mostly tired. He described his mother as drunk when she called him; he offered that her words were slurred. He said his father was relaxed and not upset when he arrived at their home. As for Crown counsel's suggestion that his father was ready to fight with him on the evening in question, he rejected this. He described his parents' relationship as "...definitely not on the rocks." All he was trying to do was "...figure out what was going on and get her [referring to his mother] out of the situation". He called police authorities and attended with his mother at the hospital. He said he was "...sick of the drama," and repeated several times that his mother was exaggerating her injury. He did not dispute that she had fractured her arm, if that is what the doctor had said. At the time he saw her, he thought she had merely suffered a bruise.
3: ANALYSIS
[14] The issue in this case turns on the question of whether or not a criminal assault took place when together with the other evidence adduced the accused agreed with Crown counsel's suggestion that he wanted his wife to believe he had the present ability to harm her when he threw the cup, whether or not he actually harmed her. In other words was he communicating a threat to apply force to his wife having the present ability to do so when he threw the cup? The court has particularized the questions and responses between the accused and Crown counsel in paragraph [10] above. The Crown asserts that the evidence heard on this trial in its entirety including the accused's admission above, supports a finding of assault under s. 265(1)(b) of the Code. Defense counsel asserts that the line of questioning which resulted in the accused's admission was improper, the line of questioning was tantamount to forcing the witness to answer a finding about a set of facts which Defense asserts is the role of this court and lastly the evidence as a whole does not support a finding under s. 265(1)(a) or (b).
[15] Section 265(1)(a) and (b) of the Criminal Code of Canada reads as follows:
A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs….
[16] For the purposes of this ruling it is only Section 265(1)(a) and (b) that apply.
[17] Section 265(1)(a) and (b) does not create two separate offences but simply defines two ways of committing the same offence. (R. v. MacKay, 2005 SCC 79, [2005] 3 S.C.R. 725).
[18] In R. v. Horncastle, [1972] N.B.J. No. 87 (N.B. Sup.Ct.) at paras. 40 and 43 the court found that it is sufficient to constitute the offence of assault when a threat is intentionally made to apply force to the person of another and there is the present ability to carry out that threat. Neither the degree of alarm felt by the person threatened nor the intent of the accused to carry out that threat are involved in the determination of the guilt of the accused. In R. v. Horncastle (supra), the accused and his wife got into an argument whereupon the wife slapped the husband, he took hold of a shotgun, held it by the middle, tried to hit her with it, he swung it one way and another and then said he was going to shoot his wife and 14 year old son. He then went into another room, got shotgun shells for the gun and while the wife and son were running to the next door neighbour, the wife saw her husband putting a shell into the gun.
[19] In Horncastle the court found the accused threatened by act or gesture to apply force by waving the gun around, by loading it after stating he would shoot her and had at that point the present ability to do so.
[20] Ontario decisions helpful on the issue of the proper interpretation of s. 265(1)(b) include R. v. Nurse, [1993] O.J. No. 336 (Ont. C.A.) where the act of firing a shotgun in close proximity to a house without the intention of hitting the house, but with the intention of threatening the occupants of the house amounted to an assault as the shooter had or caused the occupants to believe on reasonable grounds that he had the present ability to effect the purpose of applying force to them. The threat in the firing of the shotgun was the communication of a message they would be shot. Other contextual evidence included the fact that there was a fight earlier in the day between the parties, there were threats made following it, the occupants of the house on hearing the shots immediately took cover and the accused knew that the victims were inside the house when the shooting took place and it was the accused's purpose to threaten and intimidate them.
[21] In R. v. Nurse (supra), the court classified the essential elements of assault under s. 265(1)(b) as:
- A threat to apply force to another person;
- By an act or gesture;
- While having, or causing that other person to believe on reasonable grounds that the person making the threat has the present ability to effect his purpose.
[22] In R. v. Melaragni, [1992] O.J. No. 4178 (Ont. Gen.Div.) then Justice Moldaver agreed with Mr. Justice Proulx's analysis in R. v. Colbourne (1991), 66 C.C.C. (3d) 235 (Q.C.A.) in finding that an assault under s. 265(1)(b) could be committed by the mere fact of attempting or threatening by any act to apply force to another person if the potential wrongdoer had the present ability to effect his purpose regardless of whether the victim apprehended the force or the threat of force. At para. 49, Justice Moldaver found that section 265(1)(b) combined the two common law offences of assault and battery and had removed the element of apprehension of force from a victim as a prerequisite to the offence provided the wrongdoer had the present ability to effect that force.
[23] The facts in R. v. Rita, [2007] O.J. No. 445 (O.C.J.) are another example of the application of s. 265(1)(b). A husband and wife were arguing when the husband got very angry, swearing at his wife while he searched for the keys to her car. He was screaming, pointing his finger at his wife, irate and loud, yelling obscenities at her. As the argument continued the husband found the car keys, became further enraged, took a couple of steps towards his wife and threw the car keys at her, narrowly missing her and hitting the wall behind her, where they were thrown with such force that they damaged the door trim one-third of the way up from the floor to the top of the door. Justice Lampkin found that the husband threw the keys violently at the wife where she was standing. They were thrown in her direction. They miraculously missed her and hit the wall behind her. The husband threw the keys in anger at the end of a violent argument between he and his wife in which he pointed his finger, swore at her, used foul language all resulting in her being terrified thereby causing her to believe on reasonable grounds that a battery would be committed on her.
4: CONCLUSIONS
[24] Every case is distinguished by its own unique facts and circumstances. The same can be said for this trial. Much has been made of what the accused intended or meant to do when he threw the cup towards the dining room wall. The Crown asserts that the accused was a difficult witness who was not responsive to his questions and that all he did was simply summarize the facts to the accused and the accused affirmed the conclusions he, Crown Counsel, was suggesting to him. The Crown asserts that the accused fired a projectile at his wife in close proximity to her regardless of the wall that separated them. The Crown suggests that the evidence reveals the accused hoped by doing this that his wife would be scared, the accused wanted to emphasize his anger by this conduct and together with the accused's answer to the question that he wanted his wife to believe he had the ability to harm her and had the present ability to harm her with the ceramic cup, that this evidence engages the operation of s. 265(1)(b). Defense counsel argues that as the Crown's questions continued on regarding the issue of the accused's intention in throwing the cup they, the questions, became more and more legal and technical in nature. Defence acknowledges he did not make an immediate objection at the time the question was asked. He also asserts that the use of an interpreter took away the precision of language and in the result something was not only lost in translation with the accused's reply to the Crown's questions but the very nature of the question in issue was complicated, legal, leading and to rely on the response ultimately results in an usurping of this court's role with respect to its factual and credibility findings. Defense suggests the court should find that the totality of the evidence supports that all the accused really wanted to do is get his wife's attention when he was not getting responses to his questions and as such the court should have a reasonable doubt that an assault under s. 265(1)(b) occurred.
[25] In response to these arguments the court would repeat simply that as a trial judge, the court has the unique ability to observe and assess the witnesses before it; to examine their comportment, demeanour, consistency in account and thorough responsiveness to questioning. These are just a few means by which the trial judge engages in the important task of factual and credibility findings.
[26] Firstly, with respect to Crown counsel's assertion that the accused was a reluctant and difficult witness, the court does not agree. A review of the transcript bears out that the accused's responses have to be considered in the context that everything he said was translated to the English language from his native Polish and vice versa. This is not to suggest or to imply that the court finds there was an error or inadequacy in the interpretation provided. The transcript however is replete with examples of the subtle differences in language which he used and the delicate art of translation. For example, in response to his own counsel's question if he entered the kitchen after returning home on the Monday holiday, the accused responded with: "rather, nothing"..."it wouldn't be seen and I was not entering the kitchen." As for what happened thereafter he said, "my wife presented us with a meal." In response to his own counsel's question as to what happened when his wife refused to answer his questions, he curiously started each response with the preamble "there was such a moment." The same applies to questioning by Crown counsel.
[27] When the Crown suggested that the accused was likely panicked on returning home to a missing wife, the following exchange at page 84 of the transcript is instructive. The accused said, "Well, I for sure was aggravated, but I'm not easy out of order." Interestingly, Crown counsel then said the following, "You're not easy out of order? Does that mean that, I guess I should ask you what that means, you're not easy out of order?" To which the accused said, "It has to be a really big reason to make me that very angry that I go out." Yet another example is when Crown counsel noted the accused's curious manner of speech at page 85 of the transcript when he asked him about his earlier response, "Of course my wife presented a meal," when he returned from fishing.
[28] Secondly, Crown counsel commenced his cross-examination of the accused in nothing short of a commanding and controlling style. Again, that is not to suggest there was anything awry or necessarily improper with this approach, but the responses provided by the accused need to be weighed in the context of how the questions were asked and the entire issue of the delicacy of translation. The following exchange by the Crown and the accused at pages 79 and 80 of the transcript of proceedings is but one example of what the court means:
Question: Did you sleep through the night on the couch, or at some point did you get up and go to your bed?
Answer: Well, I awoke at some time and my wife was not home anymore.
Question: All right, you know, the questions are going to get harder, so why don't you answer the question I just asked you? Do you remember what the question is?
Answer: No.
Question: All right, this was the question as I recall it, I asked you if after you fell asleep on the couch, at the same time did you get up and go to your bed?
Answer: Yes.
[29] In paragraph [10] above, the court outlined the following exchange of questions between the accused and the Crown on the important issue of what the accused intended when he threw a cup towards the back dining room wall. The court will repeat this exchange:
Question: And when you say that you wanted to make her a bit scared, you wanted your wife to know that you meant business, that you were angry and that you wanted answers to where she was, correct?
Answer: Yes.
Question: You wanted her to believe that you had the present ability to harm her if she didn't start coming up with answers?
Answer: I never planned to harm her.
Question: But you wanted her to believe that you had the present ability to harm her? That's why you threw the cup to make her scared?
Answer: But it was not my plan to injure her.
Question: All right, but I want you to listen to my question and not just answer whatever you want to say. My question was, you wanted your wife to believe that you had the present ability to harm her, so that that message would be sent to her regardless of whether or not you actually harmed her?
Answer: Yes.
[30] With respect, the court treats this particular exchange with the greatest of reservation and accords it of limited weight for three reasons. First, the court finds when the Crown suggested to the accused that he should not just answer with whatever he wanted to say, the Crown was suggesting that the accused should answer him in the way he, the Crown, wanted. That is an improper way to ask a question. Second, the Crown's last sentence subtly changed the previous questions he had asked even though the Crown said, "My question was.." as a preamble to the question. That was not appropriate and in the result the question was unintentionally misleading. Third, the question itself is hopelessly complicated and convoluted, consisting of a combination of factual suggestions and legal conclusions all to be translated and digested by the accused. The court does not agree with the Crown's argument that his question was merely a summary of facts presented to a difficult witness. The entirety of the evidence does not bear this out. Added to that is the suggestibility that the accused should not answer the question the way he previously did. For all these reasons the question and answer are very problematic and in the result, likely unfair to the witness. To repeat, in the result, the court affords little or no weight to the accused's response with his simple "Yes."
[31] On the question of whether or not the accused assaulted his wife under the provisions of section 265(1)(a) of the Code, the court concludes that this section does not apply. The evidence reveals when the accused threw the ceramic cup into the dining room he could not see his wife. Both the accused and Mrs. Salagan agree unequivocally that he was seated at a location where he could not possibly see her; the kitchen and living room are divided by a solid wall; when he struck her he did not know or anticipate that she would be leaving the kitchen in his direction or which of the exits she would use or when. On the evidence before the court, the court cannot find or infer that his throwing the cup was an intentional application of force to Mrs. Salagan. The court accepts Mrs. Salagan's evidence that as far as she was concerned her husband did not know when she would be leaving the kitchen at the particular moment she did. There was no evidence provided why or how she would leave when she did. The court does not know the timing of her departure, as the only evidence received was that "after a while" she left. Moreover, the court believes the accused's evidence that he did not intend to harm or injure her. These findings support a conclusion that there was no mental element or mens rea to support a finding under s. 265(1)(a) notwithstanding the cup struck Mrs. Salagan with sufficient enough force that she suffered a break to her forearm, regrettably.
[32] The more difficult issue is whether s. 265(1)(b) applies to this situation. Crown counsel strenuously asserts that given the proximity of the parties, the accused's expressed anger, the fact that his anger and upset were ever increasing over the course of the evening as his wife would not answer his questions regarding her whereabouts, the force with which he threw the cup, the nature of the injury sustained (i.e. a fracture of her forearm), the accused's admissions that although he did not mean to harm or injure her but that he wanted Mrs. Salagan to believe he had the present ability to harm her, he wanted to scare her a bit and accent his aggravation combined with the irrelevance of whether Mrs. Salagan felt threatened or not – that all this evidence cumulatively supports a finding of assault. The court respectfully disagrees.
[33] First of all, it is of course trite law that the burden of proof at all times rests with the Crown and must be met on the basis of beyond a reasonable doubt. In the course of this testimony, the court has accepted the evidence of Mrs. Salagan and the accused which the court does not find contradictory, contrived or repressed. When all of Mrs. Salagan's evidence is digested, the court finds she opined that she was hit with the cup at a time when her husband did not expect her to leave the kitchen. She did express that she knew he was angry when she would not answer his questions and this is one of the reasons she walked into the kitchen to start the dishes. Although the issue of Mrs. Salagan's demeanour is not in issue, the court also rather suspects she was angry that he kept pressing her for an answer. The accused agreed he was angry and increasingly so. There was no suggestion or inference that this was a violent or prolonged exchange, in fact no harsh words or verbal threat was exchanged whatsoever - no foul or heated language. The evidence did not reveal there was any foul language or heated exchange prior to the parties' last exchange of questions. The evidence reveals that the accused kept asking his wife where she had been and she kept saying she would not tell him. Despite their likely upset with one another, Mrs. Salagan presented a meal. They sat down in apparent close proximity to one another on the living room couch. There is no suggestion they did not eat dinner together peaceably. They enjoyed a drink of beer during the meal.
[34] In the end, on these facts, the court is left with one of two conclusions to draw about the cup throwing incident. When the accused said that he "wanted to accent his aggravation," "make her a bit scared" and "wanted to throw the cup against the dining room wall," these statements cannot be considered in isolation. In their totality and the entirety of the circumstances before the court, the court finds that by throwing the cup the accused was not communicating he intended to apply force to Mrs. Salagan but this was rather an act of frustration as defense counsel suggests. The court finds this was simply an act to get his wife's attention. To raise the comment that he wanted to make his wife a little bit scared to the height of an assault, there simply has to be more here. And, in these circumstances, there simply is not. The court does not find that the accused was trying to communicate with throwing the cup that he intended to apply force.
[35] The court is satisfied there are several significant factual differences in the cases referred to the court. Waving a gun around, threatening to shoot someone and then loading it with shotgun shells in order to effect your purpose is a far different scenario than this one. Firing a gun into a house following an argument, threats, heated exchange and knowing the occupants would be frightened and terrified is yet another. In R. v. Rita, supra, the accused engaged in a violent argument, threw a set of car keys directly at the complainant, but missed her, hitting the wall behind her. The totality of the circumstances before the court in each of these cases provided the array of evidence to support a s. 265(1)(b) finding.
[36] In the end, the court is left with considerable doubt about the accused's intentions. The court expressly finds that he only wanted to get his wife's attention. A "bit scared" does not raise this circumstance to the threshold to support a finding of guilt. The charges are hereby dismissed.
Released Orally: August 14, 2015.
"original signed and released"
Sharman S. Bondy Justice