Court File and Parties

Ontario Court of Justice

Date: August 21, 2015

Court File No.: Toronto 13-12003343 (IDVC)

Between:

Her Majesty the Queen

— and —

Joseph McFadden

Before: Justice J.W. Bovard

Heard on: June 27, October 24, 2014; April 15, June 12, 2015

Reasons for Judgment released on: August 21, 2015

Counsel:

• Ms. J. Lofft — counsel for the Crown
• Ms. J. Myers — counsel for the defendant Joseph McFadden

BOVARD J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Joseph McFadden on a charge of assaulting his wife, Melissa Armstrong, and causing bodily harm to her on July 20, 2013.

[2] The case was heard in Toronto's Integrated Domestic Violence Court (IDVC).

[3] Ms. Armstrong and Mr. McFadden had a relationship (dating and living together) for approximately two years before they got married in 2008. They have a seven year old son, Banfield.[1]

[4] On the day in question, they argued over whether Mr. McFadden should take their son to a Muay Thai class. The argument escalated into a physical altercation during which they were both injured. Initially, they clashed on the couch where Mr. McFadden says that Ms. Armstrong hit him repeatedly in the head and face area and according to Mr. McFadden he hit her in the head to get her to stop hitting him.

[5] The altercation continued off of the couch to the middle of the apartment where Mr. McFadden says that Ms. Armstrong started swinging a framed picture at him. He pushed her away, which accidentally resulted in her falling and injuring her nose. Ms. Armstrong's recollection of her fall was sketchy.

[6] Mr. McFadden says that his actions towards Ms. Armstrong were in self defence and that he did not intend to injure her.

[7] Ms. Armstrong states that he hit her in the head during the incident, but she is uncertain as to how she sustained a cut to her nose. Her recollection of the events was clouded by lack of recall and the fact that she blacked out during the incident.

The Issues

[8] The issues are the credibility and reliability of Ms. Armstrong and Mr. McFadden and whether Mr. McFadden acted in self defence in hitting and pushing Ms. Armstrong.

The Evidence

Ms. Armstrong's Testimony

[9] Ms. Armstrong said that she and Mr. McFadden dated and lived together for about two years before they married in 2008. They have one child, a seven year old son named, Banfield.

[10] On July 20, 2013 they were living in an apartment on Queen Street West in Toronto. Their relationship was tense. They did not sleep in the same bed and they argued frequently. She was working cleaning and tending bar in an afterhours club. He was not working.

[11] Although it was not unusual for her to have a drink or two after work, on the day of the incident she did not have anything to drink at the club. After work she went shopping and got home at about 10 a.m. To her surprise, Mr. McFadden and Banfield were home. She did not expect them to be there because Banfield had a Muay Thai class that started at 10:15 a.m. They usually left the apartment at 9:45 a.m. or 10:00 a.m. It was Mr. McFadden's responsibility to get him to class on time.

[12] When she walked into the apartment she saw Mr. McFadden asleep on the couch. He woke up and asked her what time it was. She told him and he ran to wake up Banfield.

[13] He came out of Banfield's bedroom and she noticed that Mr. McFadden had put on Banfield's Muay Thai shorts inside out. Banfield was groggy and Mr. McFadden was carrying him saying that he was taking him to the class. But Banfield did not want to go.

[14] Mr. McFadden was emphatic about taking him. Ms. Armstrong said that she would pay for a make-up private class because they were not going to make it on time. She felt that it was not fair to Banfield to rush him to the class. He was "kind of weepy" and said that he wanted to have breakfast. Ms. Armstrong sat on the couch with Banfield in her arms telling him that he did not have to go.

[15] In examination-in-chief, Ms. Armstrong said that Mr. McFadden was angry. In cross-examination, she said that he was "very insistent" and frustrated. He was "getting angry". She remembered that he was standing in the middle of the room "and then I remember – a lot of it is hazy". She was worried that Mr. McFadden would try to take Banfield from her and that they would have a tug of war over him "And then you know I said no, like that." meaning that she put her arm out to stop him from going to Banfield. Mr. McFadden was "really emphatic" about taking Banfield to the class. He did not like being told, no.

[16] Mr. McFadden walked over to her and Banfield and touched Banfield's arm and said "Come on, Banfield, let's go". She stood up and Banfield went with Mr. McFadden to the middle area of the apartment. She picked up Banfield and asked him if he wanted to go and he said something like "No, can I eat first". Mr. McFadden stepped towards her and she let Banfield down onto the floor behind her. At first, in cross-examination, she said that she told Mr. McFadden, no, and pushed him to stop him from going towards Banfield.[2] Later, she said that she pushed him to stop him from coming towards her.[3] She denied walking towards him or hitting him. He was not going towards her aggressively, but she felt that she needed to stop him.

[17] She did not remember what happened after that. She said that,

I just remember at one point my face went numb, black and then I remember like going down, I think I was on the couch and then felt – I felt like I was being punched in the back of my head.[4]

[18] She was crouched in the corner of the couch with her hands in front of her face. Banfield "just…kind of slide (sic) down my – like I gently let him down onto the floor". She guided him behind her.

[19] In cross-examination, she said that she was on the couch with Banfield in her arms and Mr. McFadden came over to them. He pulled on Banfield's arm. She did not want to have a tug-of-war with him so she let him take Banfield. Defence counsel asked her:

Q. It was a back and forth pulling?

A. Yes.

Q. And that's when you pushed him away from you?

A. Yes. I stood up and I…

Q. You pushed him away and then what happened?

A. I don't really know. I remember being on the couch after.

A. Yeah.

Q. So you stood up and pushed him away from you?

A. Joe had him in the middle of the room and I stood up and picked Banfield up again and I said honey you don't have to go. And then I went for my phone and Joe was coming – and I wanted to record and then I remember Joe coming towards us and I bent down and did that.[5]

[20] She did not get to the phone because Mr. McFadden came over to get Banfield to take him to the class. She let Banfield slide down behind her and she pushed Mr. McFadden because he was not listening. She said that she had no idea how she was hit.

[21] Defence counsel suggested to her that this account is very different from what she told Officer Roberts because she added that she was going to get her phone and that there were two separate incidents. Ms. Armstrong replied that she told Officer Roberts about being on the couch and getting hit in the back of the head. But she also said that she could not remember "how she got on the couch initially".[6]

[22] She agreed that she did not tell the officer that her face went numb and that there were two separate incidents. She explained that she remembered these aspects,

After I went home I was, um,- even still, um, there's little bits in between I can't remember and it's very upsetting, um, and I've meditated it and I've gone over it and over it in my head step by step, um, and that's when I would remember the sequence of events.[7]

[23] She recapped her evidence by saying that:

…I remember being on the couch and him going – reaching for Banfield and he had his arm and I was afraid of the tug of war because this happened when he was a baby once and I didn't want it to happen again and I was scared and then I let him take him. And then they were in the middle of the room and then Banfield was standing next to him and that – and he was, he was crying and I picked him up and then I wanted to go for my phone and then Joe came over to reach for him again and I didn't want him to take Banfield. Banfield didn't want to go and I said no and that's when I pushed him.[8]

[24] She described what she remembered next:

I remember being by the – the coffee table at one point and then I remember going to the couch but I remember feeling hit [by Mr. McFadden] and then…I went to stand up and I remember everything – like feeling this numb feeling and then – then I blacked out. I passed out.[9]

[25] She did not remember how long she was unconscious. She explained it this way:

Well, I was on one side of the room and I ended up – it wasn't a very big room, so it would be from here to the wall [four meters]…I know for sure I was unconscious for part of the time when…I was dragged from there to the other side, so I don't know how long that would take, maybe 20 seconds, 30 seconds. I really honestly I don't remember, I don't know…That's just totally guess (sic).[10]

[26] The last thing that she remembered before losing consciousness was standing up off of the couch and "everything felt really numb and started going black. And then – and then I was out".[11] It was her head in particular that felt numb. She did not remember in which direction she fell.

[27] Mr. McFadden hit her on the back of the head. She did not remember how many times he hit her. She remembered thinking that he hit her with his hands, but she could not see what was happening. She did not remember whether he touched her anywhere else, but she had bruises on her left or right forearm. She did not remember "Why or how they got there".

[28] The next thing that she remembered was feeling Mr. McFadden's arms behind her, "like he was pulling me to the other side of the room where the other couch is. And I was kind of in and – I didn't really know what's going on…"[12]

[29] With regard to the injury to her nose, defence counsel asked her how getting hit on the back of the head could have caused that injury. Ms. Armstrong explained that:

No the – he hit me afterwards. My head was hit after I – no, no there is two separate things that had happened. My face – when I was standing there my face went numb and then I felt like – then I went down and then I felt punching on the back of my head after that. And then when I went to stand up after I was in the corner of the couch I went to stand up, then everything went black.[13]

[30] Defence counsel questioned her about the "two separate things". She said:

I remember, um, my face going numb and like sort of seeing stars if you will and then I remember being on the couch and feeling the back of my head being hit and being scared and then that stopped. And then I crawled further into the corner of the couch and covered up my head and then I sat up thinking I should call 9-1-1 and then when I stood up everything went black and then I remember being – the feeling of being dragged on the floor, um, to the other couch opposite.[14]

[31] Ms. Armstrong said that when she stood up she was four feet from the coffee table. She did not know why her face went numb.

[32] Defence counsel put her statement to the police to her in which she gave this account of how the incident occurred. During the reading of the statement to her defence counsel interjected so defence counsel's words are in brackets:

He insisted and he went to grab Banfield out of my arms, and it's a struggle because do I let him go? I don't want to have us tugging on our child and I stood my ground and I said no. I think I got up and he went to grab him and I" – [and then you make a pushing motion with your hand?] Yes, with my left hand –[is what you say is]- and I – with my left hand, and make that pushing movement in that space. I initiated it. I was physical first, like you're not going to touch my child. You're not going to do that. He said, 'You hit my eye' or something like that, and I don't really remember what happened. I remember being on the couch and Banfield wasn't with me and then I felt him hit me and then I don't remember what happened. I remember you're dragging me and I hit my head on the couch and he said you're acting.[15]

[33] Defence counsel told her that in examination-in-chief she did not mention that Mr. McFadden told her that she hit him in the eye. She replied that she did not recall saying that.[16] This apparently does not make sense because in her statement she said that it was Mr. McFadden that said it. However, it seems that what she meant was that when she gave her statement she did not recall telling the police that Mr. McFadden said it.[17]

[34] She watched the video of her statement before she testified. Defence counsel asked her "You do know that you did say it to Detective Constable Roberts"? She replied, "Yes". Defence counsel then asked "And you wouldn't have lied to her about that"? Ms. Armstrong responded that "I would not imagine that I would lie, no".[18]

[35] She did not disagree that Mr. McFadden said it because that is what she reported to Officer Roberts and she would not have told the officer that had it not been true. She did not recall hitting Mr. McFadden in the eye, but she cannot say that she did not hit him either. Defence counsel asked her that "it doesn't make much sense that he would say that if it didn't happen"? Ms. Armstrong said "Not necessarily".[19]

[36] She did not recall him telling her repeatedly to stop punching him. But again, she could not say that he did not say that. Likewise, she did not remember that he hit her only after she hit him a number of times and he had continually told her to stop.

[37] Ms. Armstrong said that she knew that Mr. McFadden's left eye was giving him trouble. He had "floaters" in it and he had had blurred vision. He had gone to see an optometrist or ophthalmologist about the problem. She had punched him in the eye more than once before to defend herself.

[38] After the altercation, Mr. McFadden asked her if she was okay and she told him not to touch her. She took Banfield to the other couch and called 9-1-1. Mr. McFadden sat next to her while she made the call. After she made the call she went to the bathroom with Banfield to get away from Mr. McFadden.

[39] Next, she left the apartment with Banfield and went to the courtyard where she was when the police arrived. She spoke to them and went to the police station the same day. Although she was "hazy" and thinks that she was in shock she gave a videotaped statement to Officer Roberts.

[40] The police also took pictures of her injuries. They are exhibits 1 (a) to (j) on consent.

[41] The pictures depict the following:

1. A cut about one inch long on the bridge of her nose with blood on it.
2. A bruise to her left cheekbone.
3. A light red mark on one of her arms.
4. A light purplish bruise on one of her arms.

[42] Two days later, she sought medical attention. She was having bad headaches and memory loss. Also, her nose hurt.

[43] She did not require stitches for the cut to her eye but it took about two weeks to heal. She has a scar. The soreness to her head took about a week or two to go away. The injuries to her arms lasted two to four days. She fully recovered from her injuries within about two weeks. She did not have any of these injuries before the altercation. In cross-examination, she said that she did not remember how they occurred. She also said that she was hit in the back of her head and that Mr. McFadden pulled her towards a couch.

[44] With regard to injuries to Mr. McFadden, defence counsel showed Ms. Armstrong some pictures of Mr. McFadden that depict injuries to his face. She did not remember how they occurred and she did not remember him having the injuries prior the altercation. She had never seen these injuries before.

[45] The pictures show an inch long scratch to his right cheekbone, his left eye, which was blackened in the corner, a red mark about two inches long just behind the corner of his left eye about two inches from his temple, a red mark on the top and middle of his head, a scratch to his chest, bruising in and around his left armpit at the top of his bicep, a small scratch on the bottom of his left jaw, a scrape on his left shoulder, scrapes on his back and a scrape on his left arm. The pictures are exhibits 3 (a) – (k).

[46] Defence counsel suggested the following scenario to Ms. Armstrong. She was sitting on the couch with Banfield. Mr. McFadden wanted to take Banfield to his Muay Thai class. He knelt down in front of her and said "Come on Banfield, let's go". At that point she punched Mr. McFadden repeatedly in the head and in the eye. He could not get up because his weight was down on top of his feet and she moved forward striking him in a downwards motion. Also, the table to his right prevented him from going in that direction.

[47] Mr. McFadden hit her twice in self defence and yelled at her to stop but she would not stop. Then she stopped momentarily. That was the first altercation.

[48] Ms. Armstrong said that Mr. McFadden was standing. She said that there is "an enormous coffee table there. I don't remember him kneeling. I remember him standing".[20]

[49] She denied punching Mr. McFadden in the eye and said that she did not remember things occurring in this way. Defence counsel asked her if she disagreed that it was possible. She said that she had "only told you what I remember".[21]

[50] Defence counsel made the following further suggestions: that Mr. McFadden took Banfield and was getting ready to go to the Muay Thai class and she was adamant that they not go. Mr. McFadden and Banfield were standing in the middle of the floor. There is a table by the kitchen and there are two pictures hanging on the wall over the table. She got up from the couch and approached Mr. McFadden and went at him pinching his arms and punching him. During this she lost her balance and steadied herself against the wall. She took a picture off of the wall and swung it at Mr. McFadden. He put up his hands to defend himself and to deflect the picture and push her away and she falls.

[51] Ms. Armstrong said that "I have no memory of this".[22]

[52] However, she agreed that it was likely that she fell but cannot remember how it happened. She denied that she was wearing high heels. Defence counsel asked her if she agreed that all of her injuries occurred as a result of that fall. She replied that:

Everything that I've shared with you is – that's all I remember. I can't agree to something that I don't remember and I won't. I can only share with you what I remember and there are other areas I have no memory and it's very frustrating.[23]

[53] Defence counsel asked Ms. Armstrong if it were possible that when she fell she hit her head on the table and then on the concrete floor thereby causing her injuries. Ms. Armstrong answered that she could only say what she remembered.

[54] After the altercation she remembered that Mr. McFadden pulled her across the floor to the couch. She was injured and kind of blacked out at the time. He was not being violent with her at this time. He sat calmly next to her on the couch while she called 9-1-1. He tried to touch her on the knee or something and she told him not to touch her. She went to sit on the other couch. He came over to sit next to her. She told the 9-1-1 operator that she did not need an ambulance. She advised them that everything was peaceful now. Then she took Banfield to the bathroom and locked the door.

[55] Officer Haywood arrived on scene and found Ms. Armstrong and Banfield in the courtyard of the building. She had a fresh cut to the bridge of her nose. After speaking with her he went to their apartment and saw Mr. McFadden. The officer got close to him but did not notice any injuries on him. He would have noted down any "significant" injuries had he seen any. He admitted that if he had bruising to one eye that is not something that he "necessarily would have noticed right away". He said that it would have to have started showing right away. It would have to be a "significant" injury in order for him to notice it or make a note of it.

[56] Later, he took Ms. Armstrong to the police station. He did not recall her being "under the influence". Had he felt that she had been drinking or under the influence of anything he would have made a note of it.

[57] She and Mr. McFadden stopped living together after the incident. The only communication that they have now is through a "notebook" regarding their son. Banfield lives with her and Mr. McFadden has access to him a few days a week.

Mr. McFadden's Testimony

[58] The defence called Mr. McFadden. He agreed that his relationship with Ms. Armstrong on the day of the incident was not very good. It had been that way for a very long time.

[59] He was asleep when Ms. Armstrong came home that morning. He had overslept but he thought that he had enough time to take Banfield to his Muay Thai class so he got up and started preparing to go. He noticed a strong smell coming from Ms. Armstrong and he asked her if she had been drinking. She said "What's it to you"? She told him that he knew that she drank.

[60] He went to the bathroom and then went to wake up Banfield. Ms. Armstrong was standing in front of the blue couch. She insisted that he not take Banfield to class because it was too late. He told her that he could get him to the class on time. She kept insisting that they not go. She said that she would pay for a makeup class, but he did not want to spend the money on that. He asked for cab fare, but she refused.

[61] Mr. McFadden went to wake up Banfield. He was a little groggy and whiny. He was wearing his Muay Thai shorts and shirt inside out. He had been so tired the day before that Mr. McFadden put him to bed with them on.

[62] Mr. McFadden took Banfield out into the main area of the apartment. Ms. Armstrong was sitting on the couch and she stretched out her arms and asked him to give her Banfield. He handed him to her. She took him and said that because he was groggy she was going to protect him from Mr. McFadden. This shocked him. He tried to let it go. He went to the bathroom to brush his teeth.

[63] When he came out of the bathroom Banfield was sitting in Ms. Armstrong's lap and she was holding him tight. She said that he had not even had breakfast. Mr. McFadden said that they had granola bars or he could get him something on the way.

[64] Ms. Armstrong was "sort of barking" at him. He grabbed a granola bar and some other things and walked over to Banfield. He knelt down in front of Ms. Armstrong and put his hand on Banfield's arm. He said "Banfield sweetie let's, let's go".

[65] When he put his hand on Banfield's arm Ms. Armstrong started punching him in the face. She hit him three or four times on the left side of his head and then hit him in the eye. He told her that she had just hit him in the eye. She did not stop. She was "up over me like leaning forward" with Banfield in her lap and she kept punching him.

[66] He told her to stop but she hit him in the eye. He got upset. She kept hitting him. He could not get up. He told her to stop being so violent. He hit her on the side of the back of the head two times "with the same amount of force I measured that I thought that was equal to hers". He was trying to tell her by this that she was hurting him and to stop. She stopped hitting him.

[67] Banfield was "sort of half standing" in front of him. Mr. McFadden told him that they should go. Banfield put his arms and legs around him wrapping himself around him. Mr. McFadden picked him up and walked to the telephone table to get his phone, change and keys. It was five feet from the coffee table.

[68] He was picking up his things with one hand and holding Banfield in the other arm. Ms. Armstrong was "on the couch sort of kneeled down but – up – leaning – like on the front of the couch kneeled sort of like this kind of like on – with her head down".[24] Her forearms were on her thighs.

[69] Mr. McFadden was gathering up his things and hoping that the incident was over. As he is putting his things in his pockets she rushed him and blocked his way. He was between the table and the bar. He could not get out. She started grabbing his skin and twisting and pinching it. She grabbed and scratched him. She pinched him on the side and on the arm. She tried to scratch his arm. He put down Banfield.

[70] He told her to stop but she kept moving forward and started punching him again. She hit him in the head. He was moving backwards to get away from her but she kept moving forward. He put up his hands to block her punches. She had "heels" on and walked over to a wall that had pictures on it.

[71] She was wobbling around and lost her balance so she grabbed hold of the wall to steady herself. In doing this she grabbed a picture frame off of the wall and started swinging it with both hands back and forth in front of his face. The picture was 12 X 15 or 12 X 16 inches.

[72] He put up his hands to block the picture and he pushed her and the picture back. She tripped over one of Banfield's toys on the floor. She lost her balance, turned and fell. He did not see it but he heard the sound of her hitting the table and or the floor. It was a "Really deep dense awful sound of two thumps".[25] However, in cross-examination on June 12, 2015 he stated that she fell on her face (transcript not available). He did not know how she hurt her arms.

[73] Mr. McFadden picked up Banfield to leave but on the way out he noticed that she was not moving. She was lying face up and her nose was bleeding. He asked her if she was okay. He told her that if she needed an ambulance he would call one. He asked her if she was faking it. He put his hand under her neck and picked up her head to see if she was breathing. He asked her again if she was okay. He put cold water on a face cloth and put it on her face. She woke up right away.

[74] He put his hand under her head and put his arm under her and pulled her over to the blue couch. As he was putting her on the couch she told him to take his hands off of her. She said that she was going to call 9-1-1. He sat down next to her while she talked to the operator.

[75] After she finished talking to the 9-1-1 operator, she took Banfield into the washroom. He asked to see Banfield. She told him that he "had no rights". He sat on the couch thinking about what had happened.

[76] After five or six minutes he went outside to the courtyard because he figured that the police would be there by then. Ms. Armstrong was there with Banfield speaking with an officer. Mr. McFadden sat down. Banfield ran over to him and asked him what they were having for breakfast.

[77] Mr. McFadden said that he spoke to an officer and told him that Ms. Armstrong assaulted him and that he pushed her away. He did not cause the injury to her head. She tripped over an object and hit her head on the floor and/or coffee table. He told the officer that he did not see that but he heard two sounds. It appeared to him that that was what happened.

[78] The police arrested him and took him to the police station. The Crown told him that the arresting officer, Officer Rowe, was in the cruiser with him and that he made notes about what he told him.

[79] He noted that Mr. McFadden told him that Ms. Armstrong was pinching him and punched him in the eye so he would let go of their son so he pushed her and she fell backwards and onto a table and hit her face. The Crown suggested to him that since Ms. Armstrong's injuries were to the front of her face it would be impossible for her to have hurt her face in the fall. Mr. McFadden said that she was turning. He mentioned the part about Ms. Armstrong tripping over a toy to an officer outside of the building.

[80] Regarding his injuries, Mr. McFadden testified that the police refused to take pictures of them because they were not "significant". Ms. Armstrong caused injuries to his eye, the side of his body, his chest and arm. He and his mother took pictures of the injuries after he left the police station that day.

[81] He identified the pictures and what they depict:

1. A scrape/cut on his face
2. A scratch on his right cheek
3. A bruise of his eye
4. Bruising above his left eye
5. Red marks on his head
6. Bruises to the left side of his forehead
7. A laceration and bruise on the left side of his chest and underarm area
8. Marks to his left arm and chest area
9. Finger marks on his arm

[82] The Crown pointed out to him that the record of arrest did not record any injuries on him. He maintained that he told the officers that Ms. Armstrong attacked him and that he had injuries. He told them that he had scrape marks and bruises. He said that they brushed him off. They took pictures of his face, but not of his arm or of the cuts on his side.

[83] The Crown showed him six photographs that the police took of him on the day of the incident. They are exhibits. There are four frontal pictures of his face and two profiles – left and right. They depict the following:

1. Two light marks just above the left side of his forehead
2. A red mark about two inches long above his left eye brow
3. A scratch on his right cheek
4. A red mark about two and a half inches long next to the corner of his left eye

[84] The Crown suggested to him that the pictures do not show an injury to his eye. He said "…they do show that, it does show the scrape mark on my head, the inside of my eye, my left eye…"

[85] He said that one picture showed a bruise over his left eyebrow, although not very well. He pointed out that it does not show bruises. The picture of his eye does not show it but she injured the inside of his left eye. The injury on his head hurt but it does not show significantly. He complained that the pictures were not high quality. He said that he did not realize that the police took so many pictures of him, but they simply took "booking photos", not pictures specifically of his injuries. He said that it took two or three days for his bruises to show.

[86] When he first spoke to Officer McFayden outside of his place he told him that his eye was injured. The officer did not record this in his notes, but Mr. McFadden maintains that he told him. However, the officer did record that Mr. McFadden told him that Ms. Armstrong hit him in the eye and scratched and pinched his arms.

[87] The notes also reveal that he told Officer McFayden that the altercation occurred when he tried to take Banfield to his Muay Thai class and that during the clash he pushed her and hit her twice in the back of the head. Then she fell backwards and onto a table and hit her face. Mr. McFadden testified that he gave the officer more detail that he did not write down, such as, that Ms. Armstrong tripped over a toy and that he heard two thumps. He said that he knows that he would have said that because "it was traumatic to me, so it's burned into my head".[26]

[88] Mr. McFadden said that he was wearing glasses when the incident occurred. The Crown suggested that the glasses would have protected him from injury. He replied that Ms. Armstrong knocked them off of him when she hit him in the face in front of the couch. Later, during the altercation, he was not wearing them and she continued to punch him. The Crown pointed out that he did not say that before. He reiterated that was what happened. He disagreed that he would have had a mark on his nose had Ms. Armstrong knocked off his glasses with a punch.

[89] He said that he did not mention before that Ms. Armstrong knocked off his glasses because it was not important. What was important was what happened. He was focusing on "what happened in the apartment that, that made the whole situation turn out the way it did".[27] He denied that he was now saying that she knocked off his glasses in the beginning of the altercation because it was inconsistent that he would have had on glasses while she was hitting him in the face and not have any marks as a result.

[90] The Crown pressed him that had Ms. Armstrong hit him in the eye while he had on his glasses it would have left a mark on the bridge of his nose or on the side of his head from where the glasses hit his head. He said that she did not hit him in the eye the first time. Rather, she hit him three or four times all over the side of his head.

[91] He told the Crown that he was not angry that day. He was upset when she hit him in the eye. The Crown pointed out that Officer Roberts noted that he said that he was angry because she was attacking him and hit him in the eye. He admitted that he "was upset or angry that she hit me in the eye".[28]

[92] The Crown asked him if there was a reason why he did not want to use the word "angry". He explained that "I have been angry in my life, if I were to measure it, I wasn't angry, I was upset that she hit me in the eye because I had doctors tell me that I may lose my eye if I continue to get injuries to my left eye, which she had caused previously".[29]

[93] On the issue of whether Ms. Armstrong was wearing heels, the Crown showed Mr. McFadden a picture of Ms. Armstrong that was taken on the day of the incident. It is the first picture on a contact sheet of 14 pictures. The other 13 pictures are exhibits. Mr. McFadden agreed that it looks as if they were all taken at "nearly the same moment". The Crown told him that it showed that Ms. Armstrong was not wearing high heels. Mr. McFadden said that he could not tell. He said that 99.9% of the time Ms. Armstrong dressed up and wore heels when she went to work. The 14th picture was made an exhibit.

[94] The Crown showed Mr. McFadden exhibit 6, a picture of Ms. Armstrong. Mr. McFadden said that he did not recall if she was wearing the same clothes on the morning of the incident. The Crown suggested to him that Ms. Armstrong was not wearing high heels. He agreed, but added that the shoes were "heeled".

[95] Mr. McFadden said that he did not recall the shoes that Ms. Armstrong was wearing during the altercation. What he remembered was "her wobbling around and seeing a heeled shoe".[30] The Crown challenged his recollection of Ms. Armstrong's footwear on the day in question. She proposed that he was making up his story based on what she usually wore to work. Mr. McFadden said that the clothes that she usually wore to work were suitable for the afterhours club atmosphere. The Crown asked him what she was wearing on the morning of the incident. He said that he had no idea.

[96] But he stood firm that he did not make up a story that she was wearing heels. He repeated that she wore heels and that she was wobbling around. He did not know whether she changed her shoes before the police arrived on scene.

[97] With regard to what the police officers wrote in their notes about what he told them, he said that none of them asked him to read over or sign their notes.

[98] That was all of the evidence.

Analysis

[99] Credibility and reliability are the central issues. The court is guided by the following jurisprudence with regard to credibility.

[100] D.W. v. The Queen, 63 C.C.C. (3d) 397 @ 409:

First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[101] In Nadeau v. The Queen, 15 C.C.C. (3d) 499, @501, the Supreme Court of Canada said that, "The accused benefits from any reasonable doubt at the outset…moreover, the jury does not have to choose between two versions [of a set of events].

[102] And in R. v. Nimchuk, 33 C.C.C., (2D) 209, the Ontario Court of Appeal stated that, "if reasonable doubt existed in view of conflicting testimony, as to where exactly the truth lay, it would of course, require an acquittal."

Ms. Armstrong's Evidence

[103] I will now turn to Ms. Armstrong's evidence. The pictures of her injuries confirm her evidence that she was injured on the day in question. However, I find that her recollection of the altercation between her and Mr. McFadden is uncertain. At times she said contradictory things and added new things to her previous accounts of what happened. She often said that she could not recall things. She stated that she blacked out and that her mind went numb at crucial points during the encounter. I will give some examples.

[104] When she described what happened when Mr. McFadden walked over to her and Banfield and touched Banfield's arm and said "Come on, Banfield, let's go" she said that Mr. McFadden stepped towards her and she let Banfield down onto the floor behind her. At first, in cross-examination, she said that she told Mr. McFadden, no, and pushed him to stop him from going towards Banfield.[31] Later, she said that she pushed him to stop him from coming towards her.[32] She admitted that he was not going towards her aggressively, but she felt that she needed to stop him.

[105] She did not remember well what happened after that. She said,

I just remember at one point my face went numb, black and then I remember like going down, I think I was on the couch and then felt – I felt like I was being punched in the back of my head.[33]

[106] In cross-examination, she said that she was on the couch with Banfield in her arms and Mr. McFadden came over to them. He pulled on Banfield's arm. She did not want to have a tug-of-war with him so she let him take Banfield. Defence counsel asked her:

Q. It was a back and forth pulling?

A. Yes.

Q. And that's when you pushed him away from you?

A. Yes. I stood up and I…

Q. You pushed him away and then what happened?

A. I don't really know. I remember being on the couch after.

[107] When she described that she did not get to her phone to record what was happening she said Mr. McFadden came over to get Banfield to take him to the class. She let Banfield slide down behind her and she pushed Mr. McFadden because he was not listening. She said that she had no idea how she was hit.

[108] Defence counsel suggested to her that this account is very different from what she told Officer Roberts because she added that she was going to get her phone and that there were two separate incidents. Ms. Armstrong replied that she told Officer Roberts about being on the couch and getting hit in the back of the head. But she also said that she could not remember "how she got on the couch initially".[34]

[109] She agreed that she did not tell the officer that her face went numb and that there were two separate incidents. She explained that she remembered these aspects,

After I went home I was, um,- even still, um, there's little bits in between I can't remember and it's very upsetting, um, and I've meditated it and I've gone over it and over it in my head step by step, um, and that's when I would remember the sequence of events.[35]

[110] She described what she remembered next:

I remember being by the – the coffee table at one point and then I remember going to the couch but I remember feeling hit [by Mr. McFadden] and then…I went to stand up and I remember everything – like feeling this numb feeling and then – then I blacked out. I passed out.[36]

[111] The last thing that she remembered before losing consciousness was standing up off of the couch and "everything felt really numb and started going black. And then – and then I was out".[37] It was her head in particular that felt numb. She did not remember in which direction she fell.

[112] Mr. McFadden hit her on the back of the head. She did not remember how many times he hit her. She remembered thinking that he hit her with his hands, but she could not see what was happening. She did not remember whether he touched her anywhere else, but she had bruises on her left or right forearm. She did not remember "Why or how they got there".

[113] Ms. Armstrong said that when she stood up she was four feet from the coffee table. She did not know why her face went numb.

[114] In her statement to the police she gave this account of how the initial incident occurred. Defence counsel's interjections are in brackets:

He insisted and he went to grab Banfield out of my arms, and it's a struggle because do I let him go? I don't want to have us tugging on our child and I stood my ground and I said no. I think I got up and he went to grab him and I" – [and then you make a pushing motion with your hand?] Yes, with my left hand –[is what you say is]- and I – with my left hand, and make that pushing movement in that space. I initiated it. I was physical first, like you're not going to touch my child. You're not going to do that. He said, 'You hit my eye' or something like that, and I don't really remember what happened. I remember being on the couch and Banfield wasn't with me and then I felt him hit me and then I don't remember what happened. I remember you're dragging me and I hit my head on the couch and he said you're acting.[38]

[115] Although she said that she did not have any of her injuries before the altercation and that she was hit in the back of her head and that Mr. McFadden pulled her towards a couch, she said that she did not remember how her injuries occurred.

[116] She agreed that it was likely that she fell but cannot remember how it happened. Defence counsel asked her if she agreed that all of her injuries occurred as a result of that fall. She replied that:

Everything that I've shared with you is – that's all I remember. I can't agree to something that I don't remember and I won't. I can only share with you what I remember and there are other areas I have no memory and it's very frustrating.[39]

[117] When defence counsel asked her if it were possible that when she fell she hit her head on the table and then on the concrete floor thereby causing her injuries Ms. Armstrong answered that she could only say what she remembered. It is evident from the above that her memory has significant gaps.

Mr. McFadden's Evidence

[118] With regard to Mr. McFadden's evidence, there were parts of it that raised concerns as well. The Crown argued that he was a difficult witness. He interrupted, was prolix, repeated himself and insisted on commenting on many aspects of his relationship with Ms. Armstrong that were not relevant to the case.

[119] Defence counsel argued that it was the first time that he had ever testified and that because the case was adjourned so many times he testified on three occasions. He was upset due to the situation in general and it is not correct to read too much into his demeanour and the way that he testified.

[120] I will comment on several concerning aspects of his evidence. I grant that it is difficult to understand why Ms. Armstrong, while having Banfield in her lap on the couch, would have started punching Mr. McFadden in the face when he put his hand on Banfield's arm and told him to go with him to the Muay Thai class. It seemed that this just came out of the blue.

[121] His evidence that he hit Ms. Armstrong on the side of the back of the head two times "with the same amount of force I measured that I thought that was equal to hers" is an odd way of phrasing this. It sounds calculated to fit into a legal framework for self defence.

[122] Mr. McFadden said at first that when Ms. Armstrong fell he did not see it but just heard the sound of her hitting the table and or the floor. However, in cross-examination on June 12, 2015, he stated that she fell on her face. His evidence is inconsistent here.

[123] In examination-in-chief he did not mention that Ms. Armstrong knocked off his glasses. When the Crown asked him about this omission he said that he did not mention it because it was not important. He was focusing on "what happened in the apartment that, that made the whole situation turn out the way it did".[40] He denied the Crown's suggestion that he brought this up in cross-examination because it was inconsistent that he would have had on glasses while she was hitting him in the face and not have any marks as a result. One might suspect that he was making this up to patch up a hole in his story.

[124] He told the Crown that he was not angry that day. He was upset when she hit him in the eye. The Crown pointed out that Officer Roberts noted that he said that he was angry because she was attacking him and hit him in the eye. Then he admitted that he "was upset or angry that she hit me in the eye".[41]

[125] The Crown asked him if there was a reason why he did not want to use the word "angry". He explained that "I have been angry in my life, if I were to measure it, I wasn't angry, I was upset that she hit me in the eye because I had doctors tell me that I may lose my eye if I continue to get injuries to my left eye, which she had caused previously".[42]

[126] This reluctance to admit a potentially damaging aspect of how he was feeling towards Ms. Armstrong sounds as if he is hiding the level of his anger during the incident, thereby making it appear unlikely that he would have assaulted Ms. Armstrong.

[127] Mr. McFadden testified that he hit Ms. Armstrong twice in the head to make her stop hitting him when she was sitting on the couch with Banfield. He said that later in order to ward her off he pushed her and the picture that she was swinging at him, which caused her to fall.

Disposition

[128] Due to the defects in Ms. Armstrong's evidence outlined above I have doubts about the reliability of her account of what occurred between her and Mr. McFadden concerning how she was injured and whether he assaulted her. One cannot expect perfection from a witness, but I find that the shortcomings of Ms. Armstrong's evidence go beyond an acceptable level of imperfection.

[129] Although Mr. McFadden's evidence is not without problems, as I outlined above I find that in general his was a coherent and consistent account of what happened. The pictures of his injuries corroborate his evidence of what Ms. Armstrong did to him.

[130] I accept his version of how the incident occurred. I find that his hitting of Ms. Armstrong on the couch was simply an effort to get her to stop hitting him. I acknowledge that one can argue that a mother with her child in her lap would not in these circumstances attack the child's father the way that Mr. McFadden described. However, that does not mean that it did not happen. Persons often make bad choices and do things that are contrary to logic and common sense in heated spousal disputes.

[131] Ms. Armstrong did not disagree that Mr. McFadden told her during the incident on the couch that she hit him in the eye. This is what she reported to Officer Roberts and she said that she would not have told the officer that had it not been true (that Mr. McFadden said this to her). She did not recall hitting Mr. McFadden in the eye, but she cannot say that she did not hit him either. Defence counsel asked her that "it doesn't make much sense that he would say that if it didn't happen"? Ms. Armstrong simply replied, "Not necessarily".[43]

[132] She did not recall him telling her repeatedly to stop punching him. But again, she could not say that he did not say that.

[133] With regard to Mr. McFadden's pushing of Ms. Armstrong later, I find that when he pushed her, he did so to ward her off as she was swinging the picture at him. I find that her fall was an accidental effect of this pushing and that any injury that she suffered as a result was accidental.

[134] Mr. McFadden's statements to the police in the courtyard before he was arrested were admitted on consent.[44] The Crown based her concession on the authority of R. v. Edgar, 2010 ONCA 529, [2010] O.J. No. 3152 (C.A.).[45] In paragraph 72, the court stated that "the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence". This is the way in which I considered his statements to Officer Rowe, the arresting officer.

[135] In summation, I find that Ms. Armstrong's evidence is unreliable for the reasons stated above. I find that although Mr. McFadden's evidence was not without concerns, he was credible and I accept his account of what happened. Therefore, since I accept his evidence he is found not guilty.

Released: August 21, 2015

Justice J.W. Bovard