Court File and Parties

Ontario Court of Justice

Date: 2015-02-10

Court File No.: Regional Municipality of Durham 998 13 22018

Between:

Her Majesty the Queen

— and —

Romain Ezechiels

Before: Justice J. De Filippis

Heard on: July 21-22 and December 8 & 11, 2014

Reasons for Judgment released on: February 10, 2015

Counsel:

• Mr. M. Malleson — counsel for the Crown
• Ms S. Boydell — counsel for the defendant

Judgment

De Filippis, J.:

Charges

[1] The defendant is charged with 13 offences, as follows:

1. Threat Death to Rachelle Ezechiels - Between July 1 and 15, 2013
2. Threaten Death to Evan Ezechiels - Between July 1 and 15, 2013
3. Threaten Death to Abigail Ezechiels - Between July 1 and 15, 2013
4. Threaten Death to Rachelle Ezechiels - Between July 16 and 31, 2013
5. Threaten Death to Evan Ezechiels - Between July 16 and 31, 2013
6. Threaten Death to Abigail Ezechiels - Between July 16 and 31, 2013
7. Assault on Rachelle Ezechiels - Between April 1 and 30, 2011
8. Assault on Rachelle Ezechiels - Between June 1 and 30, 2012
9. Assault on Rachelle Ezechiels – on April 1, 2013
10. Assault with a weapon (knife) on Rachelle Ezechiels - Between April 1 and 30, 2013
11. Assault on Rachelle Ezechiels - Between April 1 and 30, 2013
12. Mischief (by destroying Rachelle Ezechiel's telephone) – Between July 20 and 30, 2013
13. Criminal Harassment (toward Rachelle Ezechiel) – Between April 1 and September 6, 2013

Background and Complainant's Evidence

[2] Romain and Rachelle Ezechiels are in their late thirties. They met in 2000, began living together in 2002, and married the following year. They have two children – Evan, born in 2004 and Abigail, born in 2006. By 2010 or 2011, this marriage was in trouble. In the period covered by the Information – that is, April 2011 to September 2013, the parties often argued and sometimes property was thrown and/or damaged. The defendant was drinking heavily and in late 2012, left the matrimonial home to live in a nearby condominium unit. The children remained with the complainant. The parties continued to see each other on weekends, usually with the children, but occasionally without them. In 2013, during the period covered by most of the charges, both were using cocaine. The children were sometimes in the residence when they snorted cocaine and argued.

[3] The complainant alleges that the parties did more that argue. She claims the defendant assaulted her and threatened her and the children. She also asserts he criminally harassed her. She testified about four incidents over three years, each one occurring in the month April. The first occurred in 2011. The defendant, who had been drinking alcohol, became upset because the complainant yawned while he was "talking about his day". She said they were seated on the bed and he "was shaking me violently and his fist connected with my face". She added that "he must have realized what he did" as he abruptly left the room. The complainant washed the blood from her face and locked the bedroom door. The defendant later returned to apologize, admitting he had "lost control" and promising to "get help".

[4] According to the complainant, in the following year the defendant became depressed and was drinking heavily because of the failure of his business and the success of her career. In this state, he came to believe the complainant was unfaithful. In April 2012, while walking with their children in a local park, the complainant received a text message. She testified the defendant "grabbed my phone and ran into the woods…we looked for him for 45 minutes…[after which] he raced out and leaves in the car without us". Later that day, in the garage of their home, the complainant confronted the defendant about his conduct. She testified he tried to leave in the vehicle but she "intervened" as "he was drunk and can't drive". The defendant threw her against the wall causing cuts and bruises. The complainant said the next day she had to wear a "full suit" to a business meeting to conceal the marks on her body.

[5] In December 2012, the defendant had moved out of the matrimonial home. The complainant testified he left after she confronted him with what she believed to be proof of "his adultery". Although they had agreed to live separate and apart, she would sometimes spend the night at his condominium unit. In April 2013, she and the children stayed with the defendant. They went to bed as the defendant continued drinking. She said that in the morning, he demanded the family wake up so the children could "look for [Easter] eggs". She noticed that he "smelled of alcohol". When the complainant said she and the children would leave, he slapped her in the face.

[6] Later that month, the complainant sent a proposed separation agreement to the defendant and, at his invitation, went to his residence to discuss it. She testified that they argued and he put his hands on her throat and pushed her onto the couch. She said, "I felt myself losing breath…gasped for air, and got out of it". However, the defendant came back at her and put a knife to her throat. When the complainant told him, "If you're going to do it, look me in the eye", he dropped the knife and she left the unit.

[7] The complainant explained that she did not report these incidents to the police because the defendant's constant verbal and physical abuse undermined her self esteem. She added that, "I was scared….I'd been left as a shell of what I was". According to the complainant the defendant had been drinking one and one half bottles of scotch each day and would "create narratives" that he kept repeating and came to accept as true. In May, the defendant told her he needed help and asked her to drive him to "a detox centre". She drove him to the Centre for Addiction and Mental Health (CAMH) and a two week residential treatment program was arranged for July.

[8] The complainant claimed that the defendant often "showed up unannounced" at the matrimonial home and this caused her to keep the doors locked at all times. On one occasion, in July 2013, he "broke through the basement window" and reminded her of their vows; he said, "Till death do us part, I will kill you and the kids and we ca be together". The complainant said the defendant later "played this as a joke" but she took it seriously.

[9] Later that month, "an overseas friend" visited the defendant at his condominium and the complainant and the children went there to see him. She testified that after he left, the children went to sleep and the defendant went to the balcony "talking to himself for two hours". She explained she wanted to leave but that he demanded that she stay. He was drinking heavily and entered the unit and shouted at her. The complainant said she threw his telephone on the floor and told him to "stop it". This awoke their daughter and as the complainant comforted her, the defendant "kept talking to himself" and began throwing things. The complainant testified that he said he would kill them as "it's the only way". Eventually, he fell asleep and the next morning she left with the children. As she departed, she noticed her cellular telephone "had been destroyed".

[10] According to the complainant, beginning in April 2013, the defendant repeatedly contacted her at work, a financial institution. He did this by text messages, email, and telephone calls. By way of example she testified that he would call, give a fictitious name and account number and request action. Interspersed with such messages, he would say "I love you babe". She added that this pattern created a "security concern" and she was put on a "paid leave of absence". As already noted, in the months that followed, he attended at her home unannounced. The complainant testified she finally went to the police in September after seeing the defendant sitting in his van outside the school attended by their children. She had just taken the children there and was startled because "this was the first time he'd followed the kids". He was later seen outside the matrimonial home and near her parents' residence. The complainant testified she was particularly fearful because she had come to believe he would carry out the threats made at end of July and she had avoided him since that time.

[11] The complainant agreed that her trial testimony about the allegations and her relationship with the defendant is more detailed than her prior statement to police. For example, she did not previously disclose that she was on a leave of absence from work because of the defendant's harassment. She explained that "I was a different person when giving the [prior] statement" and that she did not pay as much attention to detail because of the "stress" and "trauma".

[12] The complainant testified in chief that since moving out on his own, the defendant "regularly used" cocaine and added that "I'm not proud of it, but on several occasions I joined him in this" When asked how often she did so, the complainant replied "I'm not sure". She conceded that she had used cocaine with the defendant during the "strangling" incident in April 2013 and in July, the last time she went to his condominium unit. In cross-examination, the complainant testified that the defendant began to use cocaine heavily by 2013 but that between January and July of that year, she also consumed it "every time we were together", that is, "most weekends". She noted that during the incident in April she snorted "two lines" of cocaine, three times. After some confusing testimony on point, the complainant eventually agreed that she was feeling suicidal and the defendant taunted and ridiculed her when she picked up the knife.

[13] The complainant explained that 2013 was a stressful period in her relationship with the defendant and she dealt with it by using cocaine. However, she conceded that she and the defendant had previously used cocaine for enjoyment, including when they were at home with the children. In cross-examination, she also admitted that both had used cocaine at her home in July 2013, when the defendant arrived unannounced and made comments she interpreted as a threat to her and the children. The latter were home at the time.

[14] The use of cocaine continued during the period of the alleged harassment, until September when the complainant stopped meeting her husband. She added, however, that this is when "the main harassment" happened and that her "real fear" arose when she saw the defendant's van parked outside the children's school. The complainant confirmed that a couple of weeks earlier she had sent a text message to the defendant expressing concern for his well being and that several days before the school incident he had retracted his prior "verbal agreement" allowing her to have full custody of the children. She admitted she found this "disconcerting".

Corroborating Evidence

[15] Lorenza Suazon is the complainant's mother. She and her husband lived with her daughter and the defendant in 2012. She testified that she never witnessed the defendant hit the complainant but two recalled arguments, in particular, among several that happened. On one occasion, the parties had been in the garage "a long time" when she saw the complainant run into the home and "within one minute" heard a cup being thrown. Ms Suazon went to the garage and observed that the cup had dented the door of a parked vehicle. On the other occasion, she heard the parties arguing in their bedroom. The door was closed. When she also heard a "thud", she investigated and saw her daughter seated on the bed "with a little cut" on her face. She left the room when the complainant told her to "stay out of it". Ms Suazon testified she did not observe damage to a cabinet in the bedroom.

Defendant's Evidence and Admissions

[16] The foregoing summary of the complainant's evidence serves to frame the allegations. It is not necessary to similarly summarize the defendant's testimony. His evidence about substance abuse confirms that of the complainant and together informs my conclusions with respect to their credibility and reliability. It will suffice, in addition, to note that the defendant denies all but the charge of mischief and to explain certain material facts upon which he and the complainant agree. The latter causes me to also find him guilty of one count of assault and one count of assault with a weapon.

[17] The defendant testified that beginning in 2011 he drank scotch regularly and, in 2013, also started to use cocaine. During this time, he suffered from anxiety and depression and was treated by counselling and medication. In testimony in chief he said consumed four lines of cocaine on a daily basis. He conceded that he was taken to CAMH because of his substance abuse. In cross-examination, he admitted to drinking up to half a bottle of scotch and five to ten lines of cocaine each day. He explained that he had been introduced to cocaine by the complainant when they met in 2000 and that both had stopped afterwards. The complainant also resumed consumption in 2013 "whenever" they were temporarily together during this period of separation.

[18] The defendant agreed with the complainant that there was a physical confrontation in their bedroom April 2011 incident (count 7). He said they argued over their deteriorating relationship, and after the complainant told him to "stop acting like a bitch", he repeatedly hit the cabinet with his hands "as a stress release". When she intervened, they struggled, and he inadvertently "elbowed" her. He also agreed with much of the complainant's evidence about the incident the following year, in April 2012 (count 8). He said he became upset with her because she was constantly checking messages on her cellular telephone during the family walk in the park. Suspecting infidelity, he grabbed the telephone, ran to his motor vehicle, and drove home so that he could read the messages. When the rest of the family returned home, he and the complainant argued in the garage. He kicked the wall "in frustration" and "knocked down a lawn chair". He testified that the complainant's injured herself when she "tripped over it".

[19] The defendant testified that the incidents in April 2013 (counts 10 and 11) arose after he and the complainant had consumed 10 lines of cocaine while in his condominium unit. He said that as they argued over their relationship, the complainant shouted "I can't take this anymore" and threatened to jump from his balcony. When he sarcastically told her not to "wreck the mat", she grabbed a knife and, pointing it at herself, said "I am going to do it". The defendant grabbed the knife from her and she said, "then you do it". He testified as follows:

So, I put my hand on the back of her head. And put the knife, which is probably about two inches from her throat. I said you want me to do it? Yes [she said] but you've got to look me in the eye. And, I'm like, forget this….And I take the knife…and put it into the block with the other knives.

[20] The defendant explained that he held the knife to the complainant's throat to "call her bluff" and stop the situation from getting out of hand. In this, he did not succeed. His testimony in chief continued as follows:

And then we were like by the couch. And she's like just snuff me out, just do it, just strangle me, or put a pillow over my head…I say how long is this going to go on…She's not serious…But this is getting out of control. Her voice is going loud. I'm going to get thrown out of this place….I go do you want me to do it? So, I put my hands around her throat, didn't press my thumbs in, put my hands around her throat. And I'm just holding her there. And I'm squeezing a little harder. And she's like yes, do it, and then all of a sudden, she's like errrr [and she said] 'No'. And I was like, you see. This is stupid…and she's like uh, huhhh, huhhh, …then all of a sudden she's fine….We both calmed down…That's the truth. I'm not proud of it. But we were on drugs…[and] she was out of control.

In cross-examination, the defendant clarified that the complainant had made a gasping sound while he had his hands on her throat but that believed she was "faking". He added that he stopped when she told him to do so.

[21] The defendant denied threatening his wife or children in July 2013 (counts 1-6). He admitted that, during an argument, he "smashed" the complainant's cellular telephone on the kitchen counter and threw it in the garbage (count 12). He also admitted driving to his children's school in September 2013. He explained that he not had access for two months and wanted to see them. He confirmed the complainant's testimony that he "ducked down in the van" when she looked his way because he "didn't want to deal with her". He denied any intent to harass the complainant on this or any other occasion (count 13). He added that he did not believe she feared him and produced an email from her to him, dated August 17, 2013 in which she inquired about his well-being and expressed her concern for him.

Legal Framework and Analysis

[22] There is no dispute about the elements of the offences or other applicable legal principles. If the complainant's version of events is proven, the defendant is guilty of all charges. This case is about the credibility and reliability of the parties and what facts, if any, can be found.

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

[24] The defendant abused alcohol throughout the period covered by counts 1 to 13. He and the complainant also consumed cocaine during the events that are the basis for the charges in 2013 (i.e. most of the counts). This substance abuse makes it difficult to make factual findings based on their testimony. Apart from count 7 and 13, there is no independent witness to the incidents. These exceptions do not assist the Crown: The complainant's mother, whose evidence I accept, confirms an argument between the parties, and injury to the complainant, with respect to count 7 but she did not see the altercation in question. The complainant's brother, whose evidence I have not summarized, adds nothing to criminal harassment count. The Crown faces additional difficulties with respect to the criminal harassment count. Even assuming the defendant intended to harass, there is no basis to conclude that this caused the complainant to fear, or that such fear would be reasonable. She continued to meet the defendant, sometimes overnight, during the period in question. As late as August, she communicated her concern for his well-being in a message sent to him. I appreciate that the complainant testified that the "main harassment" started in September but this does not alter my conclusion. In my view, it is not a coincidence that her report to the police coincided with the defendant's refusal to agree that she have full custody of the children.

[25] The use of cocaine and the fact that it was occasionally snorted by the parties when their children were in the house reflects poorly on both and causes me to distrust their testimony in general. Having regard to the criminal law standard of proof, these observations would normally lead to the dismissal of all charges. That would be my verdict, quite apart from certain other concerns about the evidence of the complainant and defendant that counsel illuminated in cross-examination. However, notwithstanding these comments, I am able to come to certain conclusions.

Findings of Fact

[26] It is obvious that this marriage was deteriorating for at least two years before these charges were laid. For much of that time, the defendant was depressed, anxious, and insecure and self-medicating with alcohol and cocaine. The breakdown in the relationship accelerated in 2013 when the defendant moved out of the matrimonial home and the complainant also began to use cocaine. The parties now frequently argued. It is reasonable to conclude these arguments occasionally became physical confrontations. I accept the defendant's admission of guilt to mischief by damaging the complainant's telephone (count 12). In addition, I am confident in making findings of fact with respect to assault and assault with a weapon in April 2013 (counts 10 and 11), based upon the significant points of agreement between the otherwise antagonistic parties.

[27] The Defence argued that it is unsafe to determine what transpired with respect to counts 10 and 11 because the only witnesses to the events were both intoxicated. As noted, substance abuse by the parties is a significant issue and informs my decision to dismiss most of the charges. However, I am not concerned by this with respect to the two counts in question. The testimony of the complainant and defendant is sufficiently similar that I am convinced both accurately described the essential events. I find that the defendant held a knife within inches of the complainant's throat and that he placed his hands on her throat and squeezed it. These acts were asserted by the complainant and admitted by the defendant. There is no reason to doubt that they occurred. In this regard, I am not troubled by the fact that they disagree about which event happened first. Both also agree that these happened when the complainant had suicidal thoughts and the defendant taunted her about this. On these facts, there is no question the defendant is guilty of assault and assault with a weapon.

Consent Defence

[28] The Defence submitted, in the alternative, that the complainant consented to having the knife pointed at her and invited the defendant to choke her. Assuming the complainant could consent, given her emotional state and level of intoxication, it cannot be credibly claimed that she meant her words to be taken seriously or that a reasonable person would so interpret them. In any event, I agree with the Crown that the defence of consent, or honest belief in consent, is not available: See R v Shand, [1997] B.S.J. No. 524, para 14, 18-22. In the circumstances of this case, holding a knife to the complainant's throat and squeezing her throat with his hands had the potential to cause severe bodily harm or death. Those circumstances include the fact that the parties were in a heated argument and both were under the influence of cocaine. Domestic violence is too serious a problem to allow the defence of consent.

Verdict

[29] The defendant is found guilty of counts 10, 11, and 12. All other charges are dismissed.

Released: February 10, 2015

Signed: "Justice J. De Filippis"

Footnote

[1] As will become apparent, these children are to be pitied. I take comfort in knowing that in cases such as this, police policy dictates that the Children's Aid Society must be alerted.