Court File and Parties

Ontario Court of Justice

Date: 2016-07-07

Court File No.: Brampton 15-7086

Between:

Her Majesty the Queen

— and —

Shyheim Rawle-Grannum

Before: Justice J.W. Bovard

Heard on: June 14, 2016

Reasons for Judgment released on: July 7, 2016

Counsel:

• Mr. M. Michaud — counsel for the Crown
• Ms. S. Rose — counsel for the defendant Shyheim Rawle-Grannum

Judgment

BOVARD J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Mr. Rawle-Grannum on a charge of assaulting Danielle Monfero on June 15, 2015.

The Evidence

[2] Ms. Danielle Monfero testified that about two years after she started her relationship with Mr. Rawle-Grannum they started to argue and they were both physical with each other. They pushed and punched each other. This happened about three times a month. She was angry about the situation.

[3] However, prior to the incident in question everything was fine. She said that it happened out of nowhere. She had planned that Mr. Rawle-Grannum would help watch their child so she was surprised that he was getting ready to go out. She was in bed. The baby was sleeping. Mr. Rawle-Grannum was putting on her brother's soccer jersey. She told him that her brother was looking for the jersey. Mr. Rawle-Grannum said that he did not care. She wanted him to take it off.

[4] Mr. Rawle-Grannum went to the washroom. When he came back to where she was, she was lying down in bed looking at her phone. He thought that she was taking a picture of him. She told him that she was not. He grabbed her phone and went to the washroom. He told her that he was going to break her phone. He closed the door to the washroom. She pushed it open. He got angry. She does not remember whether she hit him. He left the washroom and pushed her with both of his hands in her upper body area. She fell down on the floor on her back in the hallway just outside of the bathroom.

[5] Mr. Rawle-Grannum was standing next to her. She started to get up. He lifted her up and kicked her in the chest. She could not remember which leg he used to kick her. She thinks that he had on his shoes. The force of the kick was an "8" on a scale of 1 to 10. She lost her breath for almost one minute.

[6] Ms. Danielle Monfero was crying and hyperventilating. She ran downstairs and saw her mother. While she was downstairs she heard Mr. Rawle-Grannum tell someone on the phone that he might be going to jail.

[7] Regarding their phones, Ms. Danielle Monfero said that they both had iPhones.

[8] Ms. Emily Monfero, the mother of the complainant, testified that she knows Mr. Rawle-Grannum as her daughter's boyfriend. They had a child, Aaliya, on November 5, 2013. On the day in question, the complainant and the child lived with her. She could not remember if Mr. Rawle-Grannum lived with them at the time but she recalled that he was at home when the incident occurred.

[9] Between 11:00 a.m. and 1:00 p.m., she returned home from work. From in front of the door she heard a person screaming "I cannot breathe!" She went in the house and saw her daughter and Mr. Rawle-Grannum on the second floor. She asked her daughter what happened. She said that Mr. Rawle-Grannum hit her in the chest. She asked Mr. Rawle-Grannum what happened. He said something about a phone.

[10] Ms. Emily Monfero saw the child at the top of the stairs crying. She picked her up and took her downstairs. Ms. Danielle Monfero said that he had taken her phone. Ms. Emily Monfero told him to return the phone or she would call the police. Then, she told him to leave the house. She called the police. She could not remember if Mr. Rawle-Grannum left the house before or after she called.

[11] Ms. Danielle Monfero was crying and holding her chest with her hands clasped over her chest. It was as if she could not breathe. Ms. Emily Monfero said that her daughter was crying due to being in pain or because she wanted her phone, or both.

[12] Officer Ambrosio arrived at the scene with Officer Mark. Officer Ambrosio spoke to Ms. Danielle Monfero. He noted that her face was red and that she was crying and hysterical. She was holding her chest with her hands crossed. He was with her for one to three minutes. She cried during this time. He did not remember if she held her chest the whole time. He disagreed with defence counsel's suggestion that she was holding her chest because she was trying to catch her breath, but he supposed that this could be the case. He was not sure. She did not require medical attention.

[13] Officer Ambrosio left the house to look for Mr. Rawle-Grannum. He found him not far away and arrested him. He had a phone that he said belonged to Ms. Danielle Monfero. Officer Ambrosio took it back to her and then took Mr. Rawle-Grannum to the police station.

[14] Mr. Rawle-Grannum testified that he and Ms. Danielle Monfero have not had a lot of verbal and physical fights during their relationship, but they have both been physical with one another. When she would get angry and attack him he would ask her mother to calm her down.

[15] Just before the incident took place he was getting ready to go basketball training. He denies wearing Ms. Danielle Monfero's brother's soccer jersey. He went to the washroom to brush his teeth. Earlier, while Ms. Danielle Monfero was in the washroom she left her phone there on the right hand side beside his phone on the window sill. He denied that he took it from her and put it in the washroom.

[16] He was in a rush to catch the bus to go to basketball training. While he was getting ready he went to the washroom and closed the door. While he was in the washroom, his phone, charger and her phone were together on the shelf. Her phone was leaning partially on top of his. There was nothing covering them up.

[17] Ms. Danielle Monfero was arguing with him because she wanted him to watch their child. She was crying and trying to hit him. He closed the door to the washroom. She tried to open it but could not. She told him that he was always leaving her.

[18] Ms. Danielle Monfero was shoving the door while he was in the washroom. He opened the door and she attacked him and started swinging at him. He did not get angry at her because he has dealt with her before when she got angry. It is no big deal. It happens all of the time. He said that "I've dealt with it – I've had to deal with her – how she acts numerous amounts of time so I don't even sweat it. I just know she's mad and she's trying to fight me but I'm not going to fight her back".[1] But he was late for his bus and her behaviour was not helping.

[19] Mr. Rawle-Grannum described his state of mind at that point as follows:

I'm saying as in I was in the moment I need to leave, 'cause her fighting is not making – helping anything, I need to catch my bus and her mom just told me to come and leave her house. So, it's kind of like, let me just get out of here in the first place".[2]

[20] He forgot that her phone was on top of his and he just quickly swept everything up and into his backpack as he was leaving. When he did this he took up Ms. Danielle Monfero's phone by mistake. He said that he did not look at the phones and his charger directly when he swept them up, but saw them with his peripheral vision.

[21] He denies hitting or shoving Ms. Danielle Monfero.

[22] He told Ms. Emily Monfero that Ms. Danielle Monfero was acting up again. Ms. Emily Monfero told him to go to his grandmother's house. She did not tell him that she was going to call the police.

[23] He denied telling someone on the phone that he thought that he was going to jail that day. He did not have a phone service provider at the time so he could not make calls. However, he could still use the phone to access the internet via Wi-Fi. That is how he contacted his friend through Snapchat regarding basketball practice. He did not know if it is possible to make calls through Wi-Fi. He has never done that.

[24] Ms. Danielle Monfero was crying when he left the house. When he left he barely saw her. He knows that he cries hard so maybe that is why she was holding her chest, but he did not see this. He said that "She was mad 'cause I was leaving and I told her I had to leave, I had to go to ball".[3]

[25] The Crown asked Mr. Rawle-Grannum "Well, was she crying so hard or in the manner that you describe that she was holding onto her chest. Did you see that type of very intense crying?" He answered: "Yes, 'cause she was stressed out that I was leaving, and she didn't want me to leave. She does that. I've seen her do that plenty of times".[4]

[26] He denies hitting or shoving Ms. Danielle Monfero.

[27] The police stopped him shortly afterwards in front of the bus stop.

[28] That was all of the evidence.

Disposition

[29] Mr. Rawle-Grannum testified so I direct myself according to 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.

[30] 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].

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

[32] The Crown argued that Mr. Rawle-Grannum's credibility is undermined because he lied about not taking Ms. Danielle Monfero's phone. He said that it is not believable that she would have left it in the washroom as Mr. Rawle-Grannum said because she is so attached to it.

[33] Mr. Rawle-Grannum is not charged with theft of the phone so this is a collateral issue, although it is part of both Mr. Rawle-Grannum and Ms. Danielle Monfero's account of what happened so it bears some importance regarding credibility.

[34] I find that although Ms. Danielle Monfero is very attached to her phone it is believable that she left it in the washroom. She has to put it down sometime and if she went to the washroom with it, it is reasonably plausible that she could have put it down while she was otherwise occupied and then left it there when she was finished.

[35] The Crown also argued that Mr. Rawle-Grannum's account of how he accidentally swept up her phone with his things is not credible. He could easily tell if he were taking one phone or two.

[36] This might be true had he been acting in a calm set of circumstances. But he was in a very tumultuous and emotionally charged situation. Ms. Danielle Monfero was angry with him and yelling at him and going after him. In addition, he said that he was late for his bus to go to basketball training.

[37] I find that it is reasonably possible that in these circumstances he would just quickly sweep up his things into his backpack and accidentally take her phone as he described as he hurried to catch his bus and to get out of a very unpleasant situation.

[38] The Crown pointed out that Mr. Rawle-Grannum did not deny that he assaulted Ms. Danielle Monfero when in his presence she told her mother that he hit her in the chest.

[39] On one hand, one could expect that an innocent person would deny a false accusation made in their presence. However, if a person fails to make such a denial it does not mean necessarily that the person is guilty of the accusation or that the person's silence should be evidence against them. It depends on the circumstances.

[40] In R. v. Baron[5] Martin J. A. stated that:

The silence of a party will render statements made in his presence evidence against him of their truth if the circumstances are such that he could reasonably have been expected to have replied to them. Silence in such circumstances permits an inference of assent…

[41] It must be reasonable to expect a denial in the circumstances before silence can constitute an implied admission against the accused person.[6]

[42] Mr. Rawle-Grannum was in a hurry to leave, he said that this type of situation occurred frequently in their relationship and that he usually appealed to Ms. Emily Monfero to intercede with her daughter to stop it. It is credible that he would ignore what Ms. Danielle Monfero told her mother and just leave the house and let Ms. Emily Monfero deal with it. Especially since he was in hurry to begin with.

[43] Therefore, in these circumstances I find that his silence in face of Ms. Danielle Monfero's accusation did not constitute an admission of guilt, nor can an "inference of assent" be drawn from it.

[44] The Crown also submitted that Mr. Rawle-Grannum changed his story when he said at first that his phone was "dead or neutered or however you want to describe it".[7] However, Mr. Rawle-Grannum's evidence was that he did not have a cell phone service provider, not that his phone was dead. So when he said that he could use it to connect to the internet and Snapchat, this was not a contradiction or inconsistency.

[45] The Crown also argued that Mr. Rawle-Grannum changed his story by adding in cross-examination that he was late for his bus and that was one of the reasons why he hurriedly swept up all of his things including Ms. Danielle Monfero's phone into his backpack. I think that what the Crown meant was that he did not include that detail in his account the first time that he gave it in chief. What the Crown said was:

And then the next one was when he essentially described I grabbed the items, even if it's ordinary, even if it happens all the time, I grabbed the items really quickly because of the situation. Okay. Then when I said, well this happens all the time, it's ordinary, he said, okay, well I – I did it because the bus is coming and I was late for the bus. That story changed. He started to change his story a couple of times. Overall it doesn't make sense – it doesn't make sense in light of the totality of the evidence.[8]

[46] I am not persuaded by the Crown's argument because in cross-examination was not the first time that Mr. Rawle-Grannum said that he was in a rush to catch his bus.

[47] Regarding Ms. Danielle Monfero's evidence, she confirmed that she had been physical with Mr. Rawle-Grannum during arguments in the past. This supports his evidence that she was attacking him.

[48] Officer Ambrosio said that Ms. Danielle Monfero' face was red and that she was crying and hysterical. She was holding her chest with her hands crossed. He was with her for one to three minutes. She cried during this time. He did not remember if she held her chest the whole time. He disagreed with defence counsel's suggestion that she was holding her chest because she was trying to catch her breath, but he supposed that this could be the case. He was not sure.

[49] Ms. Danielle Monfero did not require medical attention and there is no evidence regarding any marks on her body as result of a kick to the chest or a shove.

[50] Ms. Emily Monfero said that Ms. Danielle Monfero could have been crying due to being in pain or because she wanted her phone or both. Her evidence is inconclusive on this point.

[51] Mr. Rawle-Grannum said that Ms. Danielle Monfero often cries hard and loses her breath. Given the evidence that they often fight each other this is believable.

[52] After considering all of the evidence, the law and the submissions of counsel I find that I am left in a reasonable doubt with regard to Mr. Rawle-Grannum's guilt of the charge. Mr. Rawle-Grannum's evidence raised a reasonable doubt in my mind.

[53] I find that the Crown did not persuade me beyond a reasonable doubt that Mr. Rawle-Grannum assaulted Ms. Danielle Monfero. It could have happened, but I am not persuaded beyond a reasonable doubt that it did. Therefore, I find Mr. Rawle-Grannum not guilty. The charge is dismissed.

Released: July 7, 2016

Justice J.W. Bovard

Footnotes

[1] Transcript, June 15, 2016, page 13, lines 18 - 21

[2] Ibid., page 14, lines 12 - 16

[3] Transcript, June 15, 2016, page 17, lines 24 - 26

[4] Ibid., lines 27 - 32

[5], [1976] O.J. No. 2304 (C.A.)

[6] R. v. Christie, [1914] A.C. 545 (H.L.)

[7] Transcript of submissions, June 15, 2016, page 38, lines 3 - 4

[8] Transcript of submissions, June 15, 2016, page 38, lines 7 - 17