Court File and Parties

The Ontario Court of Justice

Date: 2015-10-30

Court File No.: Durham Region 998 14 21891

Between:

Her Majesty the Queen

— and —

Michael Gordon-Tenant

Before: Justice De Filippis

Heard on: September 2 & 10, 2015

Reasons for Judgment released on: October 30, 2015

Counsel:

• Mr. M. Newell — counsel for the Crown
• Mr. H. Bassi — for the defendant

Reasons for Judgment

De Filippis, J.:

Facts and Charges

[1] Michael Gordon-Tenant is charged with assaulting his spouse, Monique Rejano. These facts are not in dispute: They lived in a common-law relationship for 20 years and have four children. The defendant works for CN rail and he could be away from home for long periods of time. The complainant works as a unit clerk. For the past several years, the relationship has been difficult. In 2014, the defendant went to Edmonton for work purposes. Ms Rejano claims that on August 25, he came home and assaulted her. Mr. Gordon-Tenant agrees that they argued on this day and asserts he merely defended himself against her attack. I heard from both parties and a police officer. I find the defendant not guilty.

Complainant's Evidence

[2] The complainant testified as follows: By Spring 2014, the parties had separated. She lived and worked in Ontario and he did the same in Alberta. They communicated only by text messages. In early August, the defendant told her he wanted to see the children. The complainant replied she did not want him back. She changed the locks on the home, explaining that the house "is in my name". On the day in question, she woke up around "6:45 AM" and was startled when, 15 minutes later, the defendant walked into the bedroom. He was upset. She does not know how he entered the home. She said, "What are you doing here" and he replied, "What do you mean what am I doing here, it's my home too". The complainant called out to their 21 year old daughter, Tony-Julia. The latter came into the bedroom, saw her parents, and left. The parties argued and he grabbed and hit her. He has never assaulted her before.

[3] The complainant confirmed that photographs taken of her soon after these events accurately depicted the injuries she sustained. They show a bloody eye and bruises to the shoulders, back, belly, and upper thigh. She "thinks" the defendant first grabbed her arm and then pushed her. She added that she was slapped in the eye, punched in the belly, and hit on the leg. She does not know how she obtained the bruises to her shoulders and back; "everything happened quickly". She was naked and covered herself with a blanket. The complainant stated that there was a jug of water on the night table and that the defendant poured the water on her.

[4] The complainant testified that the defendant took her cell phone from the night table but returned it to her when she said she had "to call work". She went into the bathroom and called the police. They arrived within 10 minutes. She stayed in the bathroom. The defendant made no effort to go in. He heard her on the phone and told the complainant he would be downstairs. She later saw him talking to the police outside the home.

[5] In cross-examination, the complainant stated as follows: Her family did not approve of her relationship with the defendant. By early 2014, the parties were "arguing about everything" but especially, the defendant's concern that she was unfaithful to him. In April, he "packed up his belongings, said goodbye to the kids and left, without explanation or details". The complainant did not care where he went. Later, he told the children he was in Edmonton. Some of his possessions, including clothes, remained in the home. She denied he was paying the mortgage at this time. About a month after the defendant left, they texted each other and agreed that they "were finished as a couple".

[6] The complainant insisted that when the defendant later said he would be home in August she told him he was not welcome. She denied she was seeing somebody else at this time or that she so advised the defendant. However, after the incident on August 25, she started a relationship with "Donald", a man she had been "friends with". She changed the locks on the doors to the home a couple of weeks before the defendant arrived. She did this at the suggestion of Donald.

[7] The complainant testified she does not recall details of the events in question. She could not say if the defendant asked her whose phone was on her night table. He did grab the phone but she does not know when and agreed it could have been the first thing that happened. She denied this "enraged" her and said she was not concerned that he might look at who she had been communicating with. When pressed on this point and asked, "Would you let him walk away with it?" she replied, "I can't do anything else". Later, she testified that she asked for her phone back as soon as the defendant took it from her. The complainant insisted this is the phone attached to the family plan, not "a second one".

[8] The complainant denied scratching the defendant's face or otherwise touching him during the argument in her bedroom. She conceded that she has hit him in the past during "physical confrontations" and explained that such arguments are not "assaults". She rejected the suggestion the defendant tried to restrain her as she struggled with him to get her phone back. She denied trying to kick him; "I tried to get away". She denied her back was injured when she tried to tackle the defendant. The complainant said she had not smoked marihuana the night before the incident but conceded she does smoke it in the garage.

Police Officer's Evidence

[9] PC Browne testified that he was dispatched to the complainant's home at 7:29 AM and arrived five minutes later, with PC Lewis. The defendant was outside the home. He observed that the complainant was upset and crying and had a red mark on her face and arm. He arrested the defendant for assault at 7:44 AM and noted that the right sleeve of his shirt was drenched. He confirmed photographic evidence that show the defendant's face was not marked or bruised. The officer agreed that the defendant was cooperative and did not appear angry.

Defendant's Evidence

[10] The defendant is 42 years old. He testified as follows: His duties as a conductor with CN Rail have kept him away from his family for up to two years at a time. During these periods "I would come home when I could". In 2013 he requested a transfer to Toronto "to be with my wife" but did not work as those with more seniority obtained the contracts in this area. By April 2014, their relationship was especially bad; the complainant "has a history of cheating" and this was the subject of much "shouting" between them. At this time the complainant "slapped and kicked" him but he did not retaliate. After this, he obtained a contract to work in Edmonton and left. The parties "regularly communicated by facetime". However, this communication lessened in July. The defendant added that "this is pattern when she meets somebody". At the beginning of August, the defendant advised the complainant he would be home later that month for "birthdays and their anniversary". He sent her his itinerary, but she did not respond. His daughter told him the complainant had an additional cell phone. A few days before the events in question, two of his children told him the complainant had invited men to the home and that they were consuming alcohol and marihuana. The defendant was distraught by this as he had previously told his spouse "I know I'm away a lot – if you're going to do something – hide it from kids".

[11] The defendant disputed the complainant's suggestion that he did not contribute to the cost of the house. He testified that he transferred money regularly to her account to pay the bills, including the "family plan" cell phone account. In this regard, he discovered on arrival at the home on August 25 that the account had been cancelled by Rogers because of an outstanding $2,000.00 invoice. The defendant later learned that much of the cost was due to repeated calls by the complainant to a Kitchener telephone number.

[12] The defendant conceded there was a physical confrontation on August 25. He denies hitting her in the past and claimed she has assaulted him before during their many arguments. He described the preceding events on that day as follows: On arrival at the home, he was surprised to observe that the locks had been changed. He rang the doorbell but nobody responded. He then tried to telephone the complainant. This is when he learned the family plan had been cancelled by Rogers. Using a credit card, he paid the outstanding amount. The defendant knew from experience that the complainant often left the back windows open and he entered the home by that opening. By this point, service had been restored to the family cell plan. However, he did not call the complainant as he was already in the home and went straight to the bedroom. He was "excited" to be home and "not really angry" about the changed locks. The complainant, who was sitting up in bed, said "what the fuck are you doing here, how the fuck did you get in". The defendant wanted to know why the locks had been changed and was about to ask why the cell phone account had been cancelled when he saw the complainant's phone on the night table. This is not the one associated to the family plan. He picked it up and demanded to know why she was using a different phone. The complainant "flipped out" and shouted that he return her phone.

[13] The defendant testified that the complainant "is crazy about her phone" and was angry. She charged at him and, fearing an attack, he grabbed her left arm with one hand hard enough to stop her. She "kicked and screamed" as they struggled. She grabbed the water bottle. The complainant pulled the defendant onto the bed and "straddled" him as she tried to take her phone from his hand. He "flicked" the phone onto the bed, grabbed the complainant, "rolled her" off him, and again picked up the phone. He wanted to check its contents and asked her for the password. The complainant sat on the floor, "resigned and crying". She called for Tony-Julia. The latter came into the bedroom, observed the scene and left. The complainant explained she needed her phone to advise her employer she would be late for work. The defendant gave it to her and she went into the bathroom. He realized she was talking to the police and he left the bedroom to wait for them outside.

[14] The defendant stated that the events in the bedroom lasted 5-10 minutes. The physical struggle took up a small part of this time. In this regard, he noted that: "I think my right thumb hit her eye as I backed her off – I'm not sure. I was trying to defend myself. I never hit her". The defendant added that he used his hands to push the complainant off the bed. He denied punching her in the stomach. He suggested the bruises on her body, as depicted in the photographs, could have been caused at work by contact with gurneys, as has happened in the past.

[15] In cross-examination, the defendant explained that he went to Edmonton for financial reasons, not because of the arguments in April: "If somebody tells you you're not bringing home money, you go to work". He conceded that the complainant was angry at seeing him enter the bedroom and that he knew she would react strongly to being deprived of her phone. He agreed he wanted the phone to confirm she was having an affair with a man in Kitchener: "This is normal. She goes through her infidelities and I pick up the pieces. I need to be there for kids." When confronted with the photographs of her injuries, he said they could not have been caused by him as he was trying to defend himself and does not recall striking her. He denied pouring water on her and said she struck him with a bottle of water during the struggle. He does not recall his arm being wet when the officer arrested him.

[16] The defendant was challenged on his testimony that he entered the bedroom, "excited to be home":

Q: You were locked out of home and had large bill for adultery. You had to be angry, not excited

A: I earn $120,000.00 a year. Two thousand dollars means nothing. I also have firearm licence. Why jeopardize $120,000.00 and a firearm licence? Firearm ownership comes with discipline. I get jaded by her adultery. The last guy came up to me and told me about it.

[17] The defendant admitted he was "getting agitated" but repeated he was not "angry" and would not risk his job and firearm licence by committing an assault. When Crown counsel suggested his force was excessive, the defendant said, "I have never hit her in the past, why do so now"?

Crown's Submissions

[18] The Defence claims the Crown has not discharged its burden of proof. This was a relationship in difficulty. Counsel submits that the complainant was having an affair and when the defendant overcame the change in locks and entered the home, her shock at seeing him turned to anger – "get the fuck out" – and she assaulted him. It is submitted that the complainant testified she cannot recall the details of the encounter because she does not want to admit she initiated it and the defendant merely defended himself. The Defence points to the water on the defendant's arm as support for its position: "If he dumped water on [the complainant] why would it be on him? The water on his arm is from deflecting the blow."

[19] The Crown argues that the defendant's description of his state of mind is suspect: "Excited to be home notwithstanding the kids called about her infidelity, the cell phone was disconnected, the locks are changed, and the complainant told him to leave the bedroom? This defies common sense." Counsel also claims that the defendant's account of the struggle in the bedroom does not accord with the photographs of the injuries: "There are significant bruises in different areas of body – face, shoulders, back, belly, and leg. Also the injuries to her face are more than 'my right thumb may have hit her eye'. The hand mark on her back is clearly visible. This is considerable force and more than, 'I reached around to pull her off me'". The Crown suggests that the defendant's assertion that the complainant threw the water bottle at him is inconsistent with his version of the struggle. Lastly, the Crown points out that the defendant does not come within the self-defence provisions of the Criminal Code, section 34(2)(a), (c), and (e).

Legal Principles

[20] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v. W.D., 63 C.C.C. (3d) 397. The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v. R.D., [2004] O.J. 2086 (O.C.A). Moreover, in the appropriate case, the trier of fact may reject a defendant's evidence and find guilt on the basis of a reasoned acceptance beyond a reasonable doubt of a complainant's evidence: R v. T.S., 2012 ONCA 289.

Court's Analysis

[21] There is no doubt that the complainant suffered injuries. The question to be determined is how this came about. The defendant's suggestion that she might have sustained the injuries at work is nonsense. It is obvious the complainant was injured after her encounter with him. These observations do not end the inquiry: Did the defendant slap and punch the complainant immediately upon entering the bedroom? Did they struggle over the cell phone? Did the defendant act in self-defence or use excessive force? In addressing these questions, it is relevant that the couples' daughter entered the bedroom and left without further word or action. This suggests that the young woman was not concerned to intervene, probably because the incident in question had not yet happened or had ended. In either case, this confirms that it transpired quickly.

[22] The defendant believed his spouse was having another affair and had consumed marihuana with men at the family home. He came home to find locks changed and phone plan cancelled because of an outstanding $2,000.00. Any excitement he may have had in coming home must have been replaced by something more than agitation. I do not believe his testimony that he was not angry.

[23] The complainant conceded she has hit the defendant in the past but, notwithstanding that the latter did not reciprocate, does not consider this to be an assault as it occurred during arguments. She denies using physical force on this occasion. I am confident there was a struggle and agree that her claim about not recalling the details reflects a reluctance to admit she used physical force. Moreover, I do not believe her denial of an affair at the material time. The complainant stated she was on friendly terms with a man called Donald before this event and began an intimate relationship soon after. The defendant was not challenged on his assertion that she had accumulated a large phone bill from calls to this man in Kitchener. In addition, complainant changed the locks to the matrimonial home on Donald's advice. In all the circumstances, the defendant's belief in adultery is a reasonable one. I make this observation only as it affects my assessment of credibility and, as I will explain, in determining the sequence of events.

[24] Leaving aside the issue of whether the complainant was entitled to bar the defendant from the home by changing the locks, he had no right to take her phone. The complainant allowed that this may have been the first thing he did on entering the room. I have no doubt about that. The phone was a ready means of confirming his suspicion of infidelity. Given the history of this relationship, I do not believe that the complainant simply resigned herself to this. I accept that she "flipped out" when the defendant grabbed it from her this resulted in a physical struggle. The photographs show clear, but transient, marks and bruises on various parts of her body and none on the defendant. However, I am not persuaded that this alone proves the defendant was the aggressor or that he used excessive force.

[25] I find that there are credibility issues with respect to both parties. In particular, the defendant's evidence, while not entirely persuasive, cannot be rejected. Accordingly, he is entitled to the benefit of my doubt. The charge is dismissed.

Released: October 30, 2015

Signed: Justice J. De Filippis