Court Information

Ontario Court of Justice

Date: 2016-11-02

Court File No.: Sudbury Info. No. 16.0053

Between:

Her Majesty the Queen

— and —

Alan Leclair

Before: Justice D.A. Fairgrieve

Heard on: October 24 and 25, 2016

Reasons for Judgment released on: November 2, 2016

Counsel

Kevin Ludgate — counsel for the Crown

Jacob Gauthier — counsel for the accused Alan Leclair

Judgment

FAIRGRIEVE J.:

[1] Alan Leclair is charged in a single count with having assaulted a woman named Debbie Hartling on December 26, 2015. The assault is alleged to have been committed in the maintenance shop of Extendicare York, a long-term care facility in Sudbury, Ontario, where Mr. Leclair was employed as a janitor and Ms. Hartling worked as a member of the housekeeping staff. The allegation is quite straightforward, and the factual dispute a rather narrow one.

[2] According to the evidence given by the complainant, Ms. Hartling, when she was near the end of her Boxing Day shift last year, sometime around 3:30 p.m. or 3:45 p.m., she confronted Mr. Leclair, who was in the maintenance room before his shift began at 4 p.m., with an accusation that he had basically stolen the Chinese food that the housekeeping staff had bought Christmas Day for their annual holiday lunch, and which they left in two fridges overnight when they decided to postpone the lunch until the next day. There was no dispute that Mr. Leclair and another janitor, Ian Walker, had helped themselves to what they believed were other people's leftovers and had eaten the food belonging to the housekeeping staff. This meant that on Boxing Day, some housekeepers found themselves without having brought any food or any money to buy lunch that day.

[3] Instead of just apologizing for his misunderstanding concerning the food, Ms. Hartling testified, Mr. Leclair jumped out of his chair, lunged towards her and grabbed her "scrubs" by the neck, screaming, "Go fuck yourself!" When she managed to break his grip, he forcefully grabbed her upper arms and "threw" her from the doorway where she had been standing into the hall, slamming the locked door in her face. According to Ms. Hartling's testimony, the injuries caused by the defendant's grabbing and squeezing her upper arms were photographed by an officer from the Greater Sudbury Police Service on December 30, 2015, when he was able to respond, after a major snowstorm, to her report made two days earlier.

[4] Mr. Leclair gave evidence in his own defence, essentially asserting that Ms. Hartling had been both obnoxious and aggressive towards him, but denying that he had assaulted her. While he admitted that at one point he put the palms of his hands on her shoulders (what he referred to as "soft contact"), he testified that it was either accidental, since he had no intent to cause harm, or, as later argued by his counsel, Mr. Gauthier, he was acting in self-defence, since Ms. Hartling had moved towards him, or possibly stopped suddenly when he was trying to back her out of the room, and she had a "threatening demeanour" and was screaming at him, as they were toe-to-toe, "Get the fuck out of my face!"

[5] While one additional witness was called by each party, the significant evidence relevant to the issue of whether the Crown had proved the alleged assault beyond a reasonable doubt was really limited, as Mr. Ludgate and Mr. Gauthier seemed to agree, to the evidence given by the complainant and the defendant, respectively. Nonetheless, all of the evidence called must, of course, be considered.

[6] The Crown called Andre Frappier, a young maintenance worker who happened to be in the room at the time of the incident, evidently looking for hardware he needed from the workbench there. Mr. Frappier claimed in his testimony, quite improbably, in my view, that he had not seen or heard anything after Ms. Hartling came to the doorway and asked Mr. Leclair about the food that had gone missing. Mr. Frappier made it clear that he did not wish to get involved, and gave the impression that he did not consider his solemn affirmation to testify truthfully particularly binding on him. His evidence, however, had potential relevance to a couple of peripheral issues. He testified that Mr. Leclair phoned him the following day and told him, inter alia, that "she was in the wrong," which was not itself relevant, but when Mr. Leclair denied having said that to Mr. Frappier, Crown counsel submitted that the contradiction could be used as a minor factor in assessing the defendant's credibility as a witness. Similarly, it seems to me, Mr. Frappier's evidence that after the incident when he was on the 6th Floor he asked Ms. Hartling "if she was okay," it could potentially be interpreted as expressing concern about her personal state after he had witnessed what occurred in the maintenance room, rather than idle curiosity about the missing food, as he suggested in his testimony. I am inclined to think, however, that his testimony might be too unclear to permit any inference at all and that it should best be disregarded.

[7] The defence called a further witness as well, Derek Wragg, a Registered Nurse who was the person in charge of the facility that Boxing Day afternoon. He was in the front office talking to the receptionist when he heard yelling and banging coming from the down the hall. By the time he reached the area, he testified, all he could see was that Ms. Hartling was banging on the closed door to the maintenance room and that she was "very upset" and "mad." Mr. Wragg told her to calm down and was evidently annoyed at the disturbance, but he agreed with Mr. Ludgate in cross-examination that he had not been in a position to observe what had preceded the commotion he heard.

[8] The verdict in this case, then, turns on whether the Crown has displaced the presumption of innocence by proving beyond a reasonable doubt that Mr. Leclair intentionally applied force to the person of Ms. Hartling and that the self-defence provisions in s. 34 of the Criminal Code have no application to provide any legal justification for his use of that force.

[9] Both counsel explicitly agreed that since Mr. Leclair testified and either denied the assault or gave an innocent, or at least non-criminal, explanation for his conduct that is alleged to constitute the offence charged, his credibility is clearly an important issue in this case. Given the conflicting testimonial accounts regarding the material facts and the need to determine which evidence should be accepted as reliable, the case calls for the application of the principles stated by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 at p. 409 (S.C.C.), and explained again in R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 at para. 23 (S.C.C.), and R. v. J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302 at para. 13 (S.C.C.).

[10] Because the defendant is presumed to be innocent of the charge and he has denied that he committed the offence, the doctrine of reasonable doubt applies to the credibility issue that arises in this case. If Mr. Leclair's testimony that he did not assault Ms. Hartling is either believed or leaves the Court in a state of reasonable doubt concerning the essential elements of that offence, then the law requires that he be found not guilty of the charge. A third possibility, however, must also be considered. Even if the relevant defence evidence is completely rejected, the defendant must still be found not guilty unless it can be said that the evidence of the Crown witness on which the Crown's case depends - in this case, Ms. Hartling - is accepted as proof beyond a reasonable doubt of the facts that must be established to make out the elements of the offence and to negative any defence that was potentially available. There is clearly nothing illogical about rejecting the defence evidence, but still not being satisfied by the other evidence of the defendant's guilt beyond a reasonable doubt.

[11] As Watt J.A. observed in R. v. Wadforth, (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 at para. 5 (Ont. C.A.):

The formula in W.(D.) is not a magic incantation, its chant essential to appellate approval and its absence a ticket to a new trial. Its underlying message is that the burden of proof resides with the prosecution, must rise to the level of proof beyond a reasonable doubt in connection with each essential element of the offence, and absent statutory reversal, does not travel to the person charged, even if his or her explanation is not believed.

[12] In this case, making the necessary assessment of the credibility of the witnesses and the reliability of their evidence concerning the material facts, I do reject Mr. Leclair's denial that he intentionally applied force to Ms. Hartling. Moreover, I am satisfied beyond a reasonable doubt by the evidence which I do accept, that he did in fact grab Ms. Hartling's arms in the manner she described, causing the injuries that appear in the photographs marked as Ex. 1, that he violently shoved her out of the room before slamming the door, and that his acts cannot be justified as self-defence within the meaning of s. 34. I am satisfied, then, that the Crown has proved both the actus reus and mens rea of the offence charged, as well as establishing beyond a reasonable doubt that he was not acting in self-defence.

[13] The reasons for rejecting Mr. Leclair's evidence denying the assault, and his assertion that his conduct was either accidental or authorized by the relevant Code provision, include the following:

(i) his claim that he regarded Ms. Hartling's verbal confrontation as physically threatening to him was inherently improbable, given the relative size of the two individuals (Ms. Hartling is a very slight, small woman, in marked contrast to Mr. Leclair who, while not tall, is a large man with a bulky physique);

(ii) the nature and location of the force admitted by Mr. Leclair, namely, merely placing his hands gently in a measured and restrained way on Ms. Hartling's shoulders, was inconsistent with the marks left on her upper arms, still visible four days later (examined in the context of there being no evidence to suggest any alternative explanation for what caused the injuries);

(iii) the implausibility of Mr. Leclair's testimony that he was merely trying to defuse the verbal confrontation, in accordance with his previous training and measured self-restraint, when he also admitted that he got up out of his chair and was attempting to manoeuvre her out of the room before slamming the door on her;

(iv) the contradiction of Mr. Leclair's testimony by Mr. Frappier, as Mr. Ludgate submitted, that he (the defendant) did not tell him (Mr. Frappier) the next day on the phone that "she was in the wrong." While I do not regard Mr. Frappier generally as an honest witness, I do not see that he had any apparent reason to falsify his evidence concerning this secondary aspect of the chronology;

(v) Mr. Leclair's persistent, seemingly unreasonable, refusal to acknowledge even the slightest responsibility for having provoked the entire situation by having mistakenly appropriated the food that belonged to other people, as well as showing complete indifference to Ms. Hartling's understandable grievance, even if he found her use of the word "stealing" to be offensive;

(vi) while recognizing the limited value of a witness's demeanour when testifying, Mr. Leclair presented his testimony in a generally flat, rehearsed-sounding, stilted manner, with an element of false sincerity concerning his claim to have acted calmly and reasonably in the face of the unjustified, potentially violent threat he claimed (untruthfully, I find) to have perceived at the time;

(vii) Mr. Leclair's evidence denying the assault was contradicted by Ms. Hartling's testimony which, for the reasons I will state, I accept concerning the physical interaction between her and the defendant: see R. v. G.B., 2016 ONCA 752 (Oct. 18, 2016).

[14] The outright rejection of Mr. Leclair's evidence as to the facts in dispute leads to the conclusion that it fails to leave a state of a reasonable doubt that could itself produce a dismissal of the charge, but it is still necessary to consider the third possibility under W.(D.). Since the Crown bears the burden of proof, Mr. Leclair can only be found guilty if the evidence on which the Crown relies, namely, the testimony of Ms. Hartling, is accepted beyond a reasonable doubt and establishes all of the elements of the assault alleged, including the absence of any reasonable doubt that Mr. Leclair was acting at the time in self-defence.

[15] I do accept Ms. Hartling's evidence, if not in its entirety, at least with respect to those parts of it describing how the accused seemingly lost his temper and violently over-reacted, leaping from his chair and running at her, grabbing her arms and pushing her out of the room. I find that this was not in response to any physical aggression on her part, but simply to her insistent, minor but valid, complaint. Ms. Hartling was undoubtedly an emotional witness who clearly remained upset at Mr. Leclair's lack of contrition concerning the food issue and the way he responded to her concern. I suspect that her evidence may well have minimized how loudly she protested Mr. Leclair's appropriation of the food and perhaps exaggerated how calm and composed she remained during the confrontation, but those are issues on which no findings need to be made, in my view, since they ultimately do not affect my conclusion concerning the substance of the charge.

[16] In R. v. Vetrovec (1982), 67 C.C.C. (2d) 1 at p. 17 (S.C.C.), Dickson J., as he then was, acknowledged the common sense proposition that before a trier of fact relies upon the evidence of a witness whose testimony occupies a central position in the purported demonstration of an accused's guilt, the judge or jury would naturally seek some confirmation of the story given by the witness. In this case, I am satisfied that the photographs of Ms. Hartling's injuries provide support for her version of the event. I also regard her distraught condition observed by Mr. Wragg immediately afterwards as confirming her outrage at having been assaulted, not simply being annoyed at having her complaint summarily dismissed by Mr. Leclair and the door slammed in her face.

[17] While not wishing to repeat the clichés often employed in these circumstances, I believe Ms. Hartling testified in a generally forthright, genuine manner and her evidence concerning the central facts withstood careful cross-examination by Mr. Gauthier. The bottom line is that I believe her. She did nothing that could reasonably have justified Mr. Leclair's violent response. I am satisfied beyond a reasonable doubt that his use of force was not authorized by s. 34 of the Criminal Code, in that she was not physically aggressive or threatening toward him, merely annoying and vexing from his perspective, and that he did not have any such belief at the time. I find that he unjustifiably escalated the situation, unlawfully, by over-reacting, losing his temper and applying force when none was justified.

[18] It follows that, since I am satisfied beyond a reasonable doubt that the Crown has both proved all of the elements of the offence and negatived any potential defence, I am required to make a finding of guilt.

Released: November 2, 2016

Signed: "Justice David A. Fairgrieve"