Court File and Parties
Ontario Court of Justice
Date: 2017-04-28
Court File No.: Region of Durham 998 15 22363
Between:
Her Majesty the Queen
— and —
Nicholas Hughes
Before: Justice J. De Filippis
Heard on: March 6, 7 & 20, 2017
Reasons for Judgment released on: April 28, 2017
Counsel:
- Ms. K. Kennedy — counsel for the Crown
- Mr. J. Guile — counsel for the defendant
Judgment
De Filippis J.:
Introduction
[1] The defendant was tried on five charges involving his domestic partner. It is alleged that he assaulted her between January 1 and 25, 2015. Four other counts arise from events on Christmas Eve of that year; namely, assault, assault with a weapon (knife), weapons dangerous (knife) and threat to cause death.
[2] At the outset of the trial, the defendant entered a guilty plea to the count of assault between December 24 and 25, 2015. I heard from five witnesses. These reasons explain why I find him guilty of a second assault in July 2015 and not guilty of the other charges.
Prosecution Evidence
[3] Ms. Sylvia Giorgio is the complainant in this matter. She is the mother of two children (five and two years of age) from a relationship with Mr. Ryan Colbourn. The complainant testified that this union ended in November 2014 but that they maintain a "fantastic relationship" and talk daily. The complainant has custody of the children during the week and Mr. Colburn has them on weekends. The complainant works on weekends as a waitress.
[4] The complainant met the defendant on December 31, 2014 and they began to live together in May 2015. She now regrets this as he has "control issues" and "demanded her total attention"; she explained that the defendant called her a "whore" if she straightened her hair or put on makeup and objected if she spoke to friends. The complainant testified that she worked long hours on weekends and, because the defendant resented this, she had to take one month off work to spend time with him. She said that he broke three of her cellular phones and later assaulted her several times. The relationship with the defendant ended at the end of 2015.
[5] According to the complainant, the first two phones were damaged by the defendant before they moved in together. The first of these incidents occurred on Valentine's Day at his mother's home when he grabbed her phone from her hand and threw it. In the summer of 2015, while residing together, a third phone was damaged. The complainant testified that they had argued because she was late coming home from work and he grabbed her phone and threw it to the ground. At this time he called her foul names and grabbed her by the neck. His rage continued as he ripped out screen door and bent it in half as he threw it away.
[6] The complainant testified that on one weekend in July 2015, she arrived home from work at around 11 PM and found the defendant "playing video games and drunk". He used foul language in accusing her of infidelity. The complainant said "he got up and started choking me" with sufficient force that she could "barely breath". When he let her go he began yelling again and the complainant locked herself in the bathroom. The next day, at a family birthday party she had to wear a turtle neck to cover bruises on her neck. However, her aunt observed the bruises and inquired about them. The complainant testified that she lied to her aunt so her family would not "hate" the defendant. She added that the following week the defendant caused bruises to her neck and shoulders when he grabbed her while accusing her of infidelity. As a result, the next day she wore a turtle neck on a trip to the Peterborough Zoo.
[7] The complainant noted that the defendant is over six feet tall and that she is five feet and four inches tall. Notwithstanding the events described above, she remained in the relationship. She stated that by the end of the year, her family was aware of the abuse.
[8] December 24 is the defendant's birthday. The complainant's children were with their father for Christmas Eve. She and the defendant were at home together. Both were drinking alcohol. The complainant said she consumed "up to four beers" and described herself as "feeling ok, but not completely intoxicated, I could not have driven a car". She noted that the defendant was "drunk".
[9] The defendant became upset because her family no longer liked him and this had ruined his birthday. Later in the evening, while standing in the living room and sending a text message to her uncle, the defendant "rushed" at her and said, "You're texting Ryan aren't you, your such a slut, you whore". He then threw her on the couch, "strangling" her, "with both hands". He let go before she lost consciousness and she went to the upstairs bathroom. He followed and while banging on the door said, "I just want to talk to you". She opened the door and both went back downstairs.
[10] The heated argument continued and the defendant again threw her on the couch. He then turned, "got a steak knife from the kitchen drawer" and said, "I'm going to kill you". With the knife in hand he rushed at her, saying he could get away with it, it would be self-defence and nobody would believe her. The complainant ran around the kitchen table as she shouted "you're crazy, you're nuts" and he said, "you deserve to die". She ran out the front door of the home, pursued by the defendant who grabbed her by and tried to drag her inside. The defendant let go and returned to the home because neighbours witnessed the event and called on him to stop.
[11] The complainant testified that she did not know the neighbours who intervened. It was an elderly man and woman, with their son, and they were in the garage of a nearby home. She added that they escorted her back to her house so she could retrieve her phone and leave. One of the neighbours spoke to the defendant and obtained her cell phone from him. The complainant went to her cousin's residence.
[12] According to the complainant, the next day (Christmas Day), the defendant repeatedly contacted her by text and voice messages to talk things over. She said she declined. She added that by December 27, she was being pressured by her family to call the police and by the defendant's family not to do so. The complainant spent the day at her mother's home, "drinking alone". She and the defendant continued to exchange text messages into the early morning hours of the following day. On this day, the 28th, she made a report to the police. Photographs taken by an officer show minor bruises in the area of her neck. The complainant testified these marks are from the assault on Christmas Eve. She added that she experienced awkwardness in swallowing for the next two weeks.
[13] The complainant described an abusive relationship throughout 2015. She noted that the defendant had never used knife before and added that "there was the time he threatened to run me over with his car". Her parents had urged her to leave the defendant but she declined. She believed his promises to reform. The complainant testified that that the defendant often apologized for his behaviour, sometimes saying he did not want to be like his father. She produced a letter written by the defendant and left by him on the kitchen table in which he expresses regret for "flying off the handle" and being "in the wrong and way of out of line". The complainant cannot tie the letter to a particular event because, "there were so many such notes". She explained that the defendant is insecure and feared she would leave him.
[14] The complainant conceded that she had also had difficulties in her relationship with Ryan Colbourn. Indeed, she was charged with threatening him. This charge was withdrawn after she completed an anger management course. The complainant denied the troubles in her previous relationships were alcohol related.
[15] When challenged about her account of what happened in July 2015, she denied it was precipitated because, drunk and angry at the defendant for playing video games, she tried to push the television onto his lap. She also rejected the suggestion that the defendant grabbed her by the neck only in response to this assault. When asked why she had not told the police the defendant threatened to run her over with his car, she responded that, "There is lots I didn't tell them".
[16] The complainant admitted she was upset on December 28 but denied threatening the defendant with a report to police to control him. However, she did telephone him in the early morning. This telephone call was played to the court by Defence counsel: The complainant told the defendant that he has two options, either come home to her she will call the police and have him arrested. He protested that it is 3:30 AM and the two argued over what happened on Christmas Eve. When confronted with this telephone record, the complainant said she did not recall it and then stated she was attempting to have the defendant in her home so he could be arrested there by the police. She insisted it was always her intention to contact the authorities. She rejected the suggestion that this is inconsistent with her testimony that she feared for her life because the defendant had threatened to kill her with a knife.
[17] The aforementioned telephone call occurred during a two hour period in which the parties exchanged numerous text messages. In one such message, after the complainant accused the defendant of "assault, uttering threats, and attempted murder". The defendant replied that "You just asked me to come over… why are you doing this". The complainant denied having asked him to come to her home. Obviously, having regard to the telephone call, this response is not true. When pressed on this point, the complainant testified she did not recall the events. When pressed further, she said, "it was a difficult time for me, but after a year of abuse and Christmas Eve, my head was not in the right place, clearly".
[18] The complainant admitted that she was "impaired" while exchanging the above noted messages with the defendant. When it was suggested she "passed out" when later dealing with the police, she responded that she "fell asleep". In this regard, she admitted lying to one officer in saying she was sober and in telling another that she had consumed little or no alcohol. She again explained that her "mind was not in the right place". On this point, the following exchange occurred with Defence counsel at trial:
Q: When police arrived, you were impaired and you were angry with him for not coming back home
A: I was full of lots of emotions
Q: You added [a] knife story?
A: No
Q: You did not tell neighbours about knife?
A: I just said he attacked me, not the details.
Q: A knife is more than just a detail
A: He had a knife…I was in a panic
Q: Shouldn't you have [warned] the neighbours about a knife
A: I was in a panic
[19] The complainant initially denied, but later admitted, she used the defendant's debit card after she left him on Christmas Day. She explained that it was a joint account. She conceded took money from the account and added, "it was our money, most of which came from me". She could not recall if she used the defendant's debit card to pay for a bill at a tavern.
[20] The complainant admitted that in the past she "had an issue with drinking" and was treated for this at the Pinewood Centre. She denied having "made up the story of the knife" on December 27 when she initially called police and having to persist in the fabrication afterward. She acknowledged that after the defendant's arrest she had to be cautioned by police to stop contacting his family. She explained that she was upset that his family was defending a man who had abused her; "I was hurt".
[21] Allison Hughes (no relation to the defendant) is one of the neighbours who came to the assistance of the complainant. She testified that she was outside her home at about 1:30 AM on December 25, 2015 and observed a woman run out of a house, screaming, as she was pursued by a man. Ms. Hughes now knows those people to be the complainant and defendant. She heard the complainant yell," You tried to choke me, get away from me" and saw the defendant grab her by the collar and put her in a head lock. As he tried to drag her back, the complainant said, "Let me go". Ms. Hughes and her husband told the defendant to let go of the complainant. The defendant appeared shocked to hear them and went back into the home. Almost immediately, he came outside again and then returned inside.
[22] The complainant was "crying and upset". She told Ms. Hughes "what had happened" and added that she wanted her phone. She and her husband accompanied the complainant to her home to retrieve her phone. They were met by the defendant at the front door. He said, "Why you are doing this baby, why". The complainant followed the defendant upstairs and returned within seconds with her phone. She then departed.
[23] When asked about whether the parties were intoxicated, Ms. Hughes testified that the complainant was "okay" and that the defendant was "definitely drunk, he looked like he'd fall asleep any second ". This witness also confirmed that when the complainant fled the home screaming, she did not hear her say "you tried to kill me" and that the complainant never mentioned a knife. In the few seconds she waited inside the house for the complainant to find her phone, Ms. Hughes saw about 16 empty beer bottles by the sink in kitchen. She did not see a knife laying about.
[24] Mr. McIntyre confirmed the testimony of his spouse, Ms. Hughes, in all respects. The only difference in their testimony is that Mr. McIntyre reported that the complainant "had obviously been drinking but was nowhere near as drunk" as the defendant.
Defence Evidence
[25] On December 28, 2015, P.C. Jeff Newhouse was dispatched to meet with the complainant after she reported the defendant had abused her. He testified that he knocked several times on the door before the complainant eventually answered. He immediately detected a strong odour of alcohol on her breath. While speaking to her he noticed that she was not always coherent and, on the kitchen counter, he saw a bottle of whiskey, half a bottle of wine and two empty beer bottles. The complainant told him that the defendant was physically abusive, almost daily, and that on Christmas Eve, he took a knife out of kitchen drawer and charged at her causing her to flee the home and be rescued by neighbours.
[26] The defendant confirmed that he met the complainant on New Year's Eve, 2014. He testified that what she said had occurred on Valentine's Day actually happened two weeks later. They had argued and the complainant went to a bar. Around 1 AM, she sent him a text message saying she needed help. He went to the bar but she was not there. He found his sister there. The latter reported that the complainant had left with a man. He sent her a text message but, receiving no response, he returned home. At about 3 AM, the complainant "banged on the door". The defendant let her in. He described her as "hammered". She denied being with another man. Later, the defendant tried to take the complainant's phone from her to find evidence of where she had been during the night, but "it fell to the floor and was damaged".
[27] According to the defendant, the complainant often came home late after working on weekends and they argued about this because it was obvious she had been drinking. He felt insecure about her fidelity to him and conceded that he often "verbally abused her" about this matter. He reported that on one such occasion, while he was playing video games, the complainant pushed the television over and he caught it as it fell in his lap. The complainant then grabbed his wallet and began "ripping things out of it". He responded by grabbing her by the throat. He admitted that she was bruised by this incident and added that, "she bruises easily". Sometime later in the summer, during an argument, the complainant "slammed [his] laptop down hard" and in response he "smashed her phone".
[28] The defendant testified that on December 24, 2015 he and the complainant returned home after visiting his parents and began to prepare the Christmas turkey, consuming alcohol as they did so. He became upset with the complainant because she was texting her ex-husband's girlfriend. He explained that Ryan Colbourn had told her to stop doing this as the complainant's messages were often rude. The defendant conceded that he used foul language in confronting the complainant about this and that she responded in kind. He said he then "grabbed her by the throat and held long enough to say 'shut the fuck up'". After he let go, the complainant said she wanted to leave. He asked her not to. Then she "went out for a smoke but kept going". The defendant followed and grabbed her by the arm but let go when neighbours intervened.
[29] The defendant admitted he is guilty of assault in grabbing the complainant by the throat inside the home. He resisted the suggestion that in doing so he actually choked her. He could not explain the bruises on her neck as captured in photographs taken by the police a few days later. The defendant denied that he picked up a knife. He also rejected the allegation he threatened the complainant with a knife.
[30] The defendant testified that the neighbours are wrong in suggesting the complainant "ran out of the house" but acknowledged that she was screaming that he had tried to choke her. He also confirmed that he grabbed her arm and pulled her towards him. He agreed that he was "a little bit drunk [but] not overly". He denied that he was so intoxicated that he cannot recall the events in question.
[31] The defendant confirmed that between December 27 and 28, the complainant repeatedly sent him messages that he would be arrested if he did not come home, and that they spoke on the telephone in the early morning hours. He said it was obvious she had been drinking. Later, he realized that at the relevant time she had used his debit card to access a joint account to pay for drinks at a bar.
Analysis
[32] 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).
[33] Defence counsel explained that the guilty plea by his client is based on three acts on December 24; pushing the complainant, "putting his hands on her throat for a few seconds…long enough to say 'shut the fuck up'" and "putting her in a headlock" outside the house. All other allegations are denied, including those related to the knife. With respect to the latter, it is noted that the neighbours did not hear the complainant mention a knife.
[34] It is conceded that the defendant was drinking alcohol and acted inappropriately. Counsel submitted that the complainant consumed more that she is willing to admit, especially when she contacted the police several days later. This is confirmed by the testimony of the officer who responded to her complaint. The text messages show that the complainant tried to "blackmail" the defendant into coming back home. When he refused, she took his debit card to access their joint account and went to a bar. It is the position of the defence that the complainant, drunk and angry, falsely claimed the defendant had used a knife to threaten her and that this "morphed into a lie at trial".
[35] The Defence suggested that the evidence does not justify a finding of guilt with respect to the other allegations during 2015 and that the defendant was acting in self defence he struck the complainant, in July, after she pushed the television on him.
[36] The Crown noted the defendant was insecure about his relationship with the complainant and that over the course of 2015 this led to verbal and physical abuse. The insecurity is confirmed by the letter written by the defendant as well as his trial testimony. He also testified at being upset with the complainant when she came home late and that he used foul and insulting language in the ensuing arguments. He conceded her cell phones were damaged but claimed it was inadvertent. In this regard, the Crown also noted that the defendant admitted grabbing the complainant by the neck in the summer incident and argued that this is excessive force, even assuming the complainant had tried to push the television onto him.
[37] With respect to the events on December 24, the Crown submitted that the defendant was "drunk and out of control"; this is confirmed by the neighbours who testified about his level of intoxication and observed the complainant run from her house screaming. This, it is said, shows she was in fear and supports her evidence about the knife. All this is the context within which to assess the defendant's statement, "you deserve to die" and constitutes a threat.
[38] Both counsel make valid arguments about the credibility and reliability of the complainant and defendant. Neither counsel suggested I should have any difficulty accepting the evidence of the neighbours and P.C. Newhouse. I am confident in the testimony of the latter three individuals.
[39] This was a dysfunctional relationship throughout 2015, perhaps fuelled by excessive alcohol consumption. That is obviously the case with respect to the events in December of that year. Both parties were intoxicated on the evening of December 24 – the defendant more so. This is confirmed by the neighbours. That the complainant was similarly impaired on December 27 to 28 is supported by P.C. Newhouse. In these circumstances, it is difficult to determine where the truth lies. However, I am confident that the defendant choked the complainant on two occasions, sometime in July and on December 24, 2015.
[40] The parties agree that a physical confrontation occurred in July when the complainant came home late to find the defendant playing video games. Even accepting the defendant's version of events, I must find him guilty of assault. To have "grabbed" her by the neck, with both hands, in response to having a television pushed onto his lap and the contents of his wallet destroyed amounts to excessive force. Moreover, I accept the complainant's testimony that she was choked by him such that she had difficulty breathing. I do so, notwithstanding the concerns expressed below about her evidence, because the defendant's action is consistent with his misconduct in December and reflective of his rage and insecurity.
[41] The defendant admits assaulting the complainant on December 24 in three ways, as set out above. He resists the suggestion he choked the complainant. I reject this and find that he did so. The defendant's version of events must be viewed with caution given his extreme drunkenness. Moreover, photographs taken of the complainant by police following these events show bruises to her neck. In addition, the testimony of the neighbours is that the complainant ran out of the house screaming and saying she had been choked.
[42] I am unable to find beyond a reasonable doubt that the defendant used a knife to assault and threaten the complainant. I come to this conclusion, not because the defendant has raised a doubt; as already noted, he was drunk to the point of passing out and cannot be trusted. My concerns about the matters involving the knife arise from the prosecution evidence.
[43] It is clear that the complainant ran out of the house in fear of the defendant. She was heard to accuse the latter of choking her. However, at no time did she mention a knife. As Defence counsel noted, this is not a minor detail. Even assuming this omission is due to shock, the complainant's evidence cannot be safely relied upon. In this regard, in addition to the excessive alcohol consumption already referred to, with respect to both parties, the complainant's testimony as summarized in paragraphs 16 to 20 above is, at the very least, evasive.
[44] The defendant is found guilty of two counts of assault. The other three charges are dismissed.
Released: April 28, 2017
Signed: "Justice De Filippis"