Court File and Parties

Court File No.: Central East - Newmarket 15-03556 Date: 2017-06-28 Ontario Court of Justice

Between: Her Majesty the Queen — And — J.S.

Before: Justice P.N. Bourque

Counsel:

• J. Halajian, for the Crown
• I. Donnell, for the defendant

Reasons for Judgment

Released on June 28, 2017

The Facts

[1] The defendant is charged with 9 counts of assault, threatening and sexual assault upon his wife ranging from 2003 to 2013. The Crown's case mainly consists of her viva voce evidence in court.

S.S.

[2] The witness is 46 years old and resided for many years with her husband, the defendant. They have two grown children, the youngest of whom lives with the witness. They separated in January, 2013 (for the second time, the first separation being on June 11, 2012) and have been engaged in acrimonious family litigation since that time. Filed by the Crown were a series of court orders and endorsements in family court from appearances in January, 2015. She says that there is a trial set in family court for November, 2016. The issues between the parties centre around the sale and division of the proceeds of the matrimonial home. At the conclusion of this case in June, 2017, I was informed that the matrimonial litigation was finally settled.

[3] She worked through the marriage principally as a bus driver but did other jobs including sewing under contract. She describes the defendant as a "Welder" who drank a lot and never earned more than a few thousand dollars a year in income. She described him as trying to stop drinking sometimes. He rarely slept at night preferring to watch television and then sleep in the day.

[4] The witness also filed pictures of the outside of the house which showed a large fence around the house.

[5] She left the defendant two times, once on June 11, 2012 (only to return on August 1, 2012) and again on January 30, 2013. She has not returned since that time. She states that she went to the police on June 11, 2012 to tell them that she was going to a shelter with her daughter and that the defendant would be angry when he found out. She thought she was not properly treated by the police and did not return. She went again to the police on May 6, 2015, after he yelled at her on the street as she thought he was breaching his non-contact order she had obtained in family court. Initially in her evidence in-chief she did not mention that she had been to the police earlier on June 11, 2012. In fact she stated that prior to May 6, 2015, she never had any intentions of going to the police.

[6] She stated that 3 District of York Regional Police is some 4 minutes' drive from her house and is a block away from her house (a map was filed by the Crown showing the location of the house and the police station).

[7] Between January 30, 2013 and today's date, she said that she had seen him two times on the street and he yelled at her. She says that she is fearful of him throughout that time and continuing.

Count 2 - Assault with a Weapon (Flashlight)

[8] The witness stated that on June 10, 2012, she was at home and the defendant was drinking and was angry with her. She stated that he began to hit her and poke her with a flashlight. She stated that she had bruises all over her body. She said that her daughter S. came downstairs and saw some of these assaults. She filed as Exhibits, pictures that she said she and her daughter took about one week later. Some of the pictures show obvious bruising on arms and other areas. She said that the defendant was looking for her phone (he always was looking for her phone).

[9] The witness said that she stayed up all night and she and her daughter S. left in her bus the next day and she eventually went to the shelter.

Counts 3 and 7

[10] The witness stated that she got a knife sharpener for Xmas in 2013. She was cooking with her knife and the defendant picked up a butcher knife and put it to her throat and stated that "he should just kill her". Her daughter came down and saw the scene. The defendant then put the knife down.

[11] Again in January of 2013, she was boiling a small pot of water for her tea on the wood stove. She said that the defendant picked it up and brought it over to her and said that "I should just burn you". The witness then said she did not remember the exact words. The witness said he put it back on the wood stove without doing anything else. The witness said that the defendant told her he would make her ugly and she responded that it did not matter because she would still be beautiful on the inside, and he would always be ugly on the inside.

Count 4 - March 17, 2012

[12] The witness stated that she and her husband and daughter S. went to a friend of the defendant's for a St. Patrick's Day party. While there, the defendant came over and assaulted a young man who had touched the witness's hair. The witness said that he was very jealous. She also said that as she was driving home that night (in the fog and dark) he ripped her jersey and broke her glasses as she was driving the car. She was able to make it home notwithstanding. The daughter S. was present in the car during this event.

Count 5

[13] The witness described that the defendant would often try to push her face into the toilet. She stated that he had done this many times. She stated that he would either twist her arm behind her back or he would twist her ear and push her head toward the toilet and his feces would be in the toilet bowl. She describes that he would never flush the toilet and in the midst of arguments, he would often push her head into the toilet although she stated that her face never touched the water and she would put down the seat and sit on it or would go to the sink.

Count 8

[14] The witness stated that the defendant would always twist her arm behind her back to the point that she has continued pain in the elbow. She went to the doctor to check it but the doctor thought it was a ligament or tendon problem and could do nothing about it. Filed as Exhibit 5 was a copy of her doctor's notes and there are references in the notes to the witness telling the doctor about abuse and the doctor says "continues to be abusive whenever they speak" and "forearm ache in joint from repeated twisting from abusive husband".

Count 9

[15] The witness stated that the defendant would often twist her ear to the point that it bled although there is no permanent injury. She stated that she went to the doctor and told her about it and the doctor took x-rays but could find nothing wrong.

Count 1

[16] The witness spoke of one night when she was sleeping on the loveseat (the defendant would not let her sleep in the bed) when the defendant (who had been accusing her of sleeping with his brother) came and spread her legs apart and used both his hands to "rip apart" her vagina. The witness stated that to free herself she bit the defendant on his midsection and it stopped.

Count 10

[17] The witness related that the defendant on one occasion in 2003 head butted her and she stated that there is a small indentation in her forehead from that head butt. She did not seek medical attention.

Defence Evidence

J.S.

[18] The defendant is 47 years old and is a welder and fitter and insists that he has worked all of his life. He states that there was a period of time where he was not employed but worked as a contractor. That period seemed to coincide with the last ten years of their marriage. He denied that he stayed home all day and drank but in cross-examination, it became clear that he obviously enjoyed being home and it was also clear that his wife was earning most of the money for the expenses of the home.

[19] He stated that he thought that his wife had an operation and after that became moody in the last 10 years. He thought they had a good marriage but thought that they began to argue a lot.

[20] He describes that when they argued, he would usually end up just leaving the house and going to the garage. At one point, he said that he stayed there for over a month. He stated that the house was surrounded by a fence for privacy and because it was at the corner of two very busy roads. He described the fence and the gates and it was his opinion that anyone in the family could come and go and there were no locks on the gates they used. The pictures filed confirm the house location at the intersection of two main roads.

[21] He denied the several allegations of assault, threatening and sexual assault. With regard to the incident at the friend's home (on the drive home she said that he had assaulted her) he stated that it was a day in the summer and that he drank about 6 beers the whole time they were there (for about 12 hours). He stated that he saw a person at the party playing with the braid in his wife's hair and he went up to him and told him to stop. He denied that he yelled or that he got into any fight with him. On the way home, he agreed that she drove as she had nothing to drink that day but he denied assaulting her.

G.S.

[22] …is the father of the defendant. He stated that he lived next to their home. He would see the defendant and his family very regularly, about once per week. He indicated that he was very close to his family including his wife. He was unaware of any problems between his son and his wife. He was aware of the two times that she left him. He was not advised of any violence in their marriage. To him they seemed "normal". He did not understand why she left him.

[23] The witness thought that if there were problems, he would have heard about it.

[24] I find his evidence somewhat supportive of the defendant's assertions, however, I don't give it a great deal of weight as it neither proves nor disproves the complainant's allegations. They happened either when they were alone, or in the presence of their daughters, or other persons (count 4).

J.S.

[25] …is the defendant's younger brother. He stated that they lived close to each other up to 2007. He and his spouse would see them several times per week. They socialized together. He did not see his brother assaulting or threatening his wife at any time.

[26] He described her as moody and sometimes would "snap" at him if he said the wrong thing. He stated that there was one incident where she struck him with her fists. She seemed angry. She did not hurt him and he laughed. There was another incident when he was leaving with the defendant to go to his house and he saw her (through a window) with her arm raised holding a knife. He heard her yell. He went to the door and saw her holding the knife by her side when he came out. He said that within a few days, his wife received a text message from the complainant which seemed to accuse the defendant of brandishing a knife on her. He said he was surprised to see that as the witness was the one who had the knife.

[27] He said that there were several occasions when she would hit him but no one thought anything of it.

[28] He described that he recalls that after she left him the first time, he saw her several days later at a family event. She was not showing any bruises, but her arms were covered.

[29] The witness was generally very unsure about dates especially about the times of her leaving him and the knife incident.

Analysis

[30] The Crown bears the burden at all times of proving the allegations beyond a reasonable doubt. As the defendant gave evidence, if accepted would afford a defence to all charges, I must apply the doctrine of R. v. W.D. which states that if I believe the evidence of the defendant, then I must acquit. Even if I do not believe the defendant's evidence but am left in a reasonable doubt by it, then I must also acquit. If I am not left in doubt by the defendant's evidence, I must look at the evidence of the Crown to determine whether it satisfies me beyond a reasonable doubt about the guilt of the defendant.

[31] With regard to the defendant's evidence, he provided it in a forthright manner and it was not seriously shaken in cross-examination. Unlike the complainant, he was not long winded nor did he argue with the Crown, nor show any animus for the complainant, other than the fact that he felt wronged by the allegations. In some respects, his evidence is supported by his father and brother. None of them were witness to any aggressive acts by the defendant upon his wife. In fact, his brother relates an incident where the complainant appeared to brandish a knife upon the defendant. It does not directly contradict the complainant as the two incidents are some time apart. It does paint the complainant as the "aggressive" party to this marriage. In that sense, it confirms some of the evidence of the complainant where she admitted kicking the defendant in the scrotum some three times.

[32] In total, the defence evidence could leave me with a reasonable doubt.

The Complainant's Evidence

[33] In cross-examination, I found that when pressed, she would often not give a straight answer and would give a long winded answer when a simple answer would do. This was so when she was asked about her own propensity to violence with the defendant and also with her current relations with her daughters. I am concerned that she actively told one of her daughters (the youngest) not to cooperate with the police notwithstanding her assertion that this daughter was a witness to more than one of the assaults that she spoke of.

[34] With regard to her own propensity to violence, she denied it but then had to admit that she had kicked the defendant in the scrotum three times but stated it was not in an unfriendly way.

[35] She denied being aggressive physically in any way with any person. She was (at least in a verbal sense) feisty and combative with defence counsel, and hardly likely to accept any slight.

[36] Defence counsel pointed out that the timing of her attendance at the police to report these incidents was a long time after her second separation and coincided with the commencement of the family law proceedings. She denied that the family law proceedings had anything to do with her complaints although she stated that she should be compensated for the years of abuse she suffered under the defendant.

[37] A lot of evidence was heard from the witness about the home premises and in particular the location of fences and gates. She described that when she left with her daughter, they had to "climb over fences". I only assume that she is trying to say that his abuse was such that he was trying to keep her in. It was her evidence that all the gates were somehow blocked in some fashion or he controlled any of the keys. I do not find any of this evidence terribly relevant for the main reason that she went out to work every day on her school bus. She described that he would be sleeping most of the day. She therefore went in and out of her home premises every day and was away from him every day. I find her evidence on this point is nothing more than an embellishment of her main contention. I therefore give this evidence little or no weight in determining whether the Crown has met its burden of proving these allegations beyond a reasonable doubt.

[38] She stated in her evidence that before the two times she went to the police in this matter, she had never been to the police. She had to admit that she did report an incident to the police about privacy issues at her home, some 10 years ago, during these abusive activities, but never told any police officer about them.

[39] The witness was taken through her recitation of the events of the sexual assault. The various positions of the parties in the course of this event are hard to understand. She said it happened in a blink of an eye (and snapped her fingers). That may be so but as defence counsel pointed out it would be difficult for the defendant to have held her up and then attack her in the way that she described.

[40] With regard to the allegation of the many and continuing assaults on the night of June 10-11, 2012, a similar flashlight to the one she describes was placed in evidence. It is very small. It is no more than 6 inches long. It is not a long handled device. It is hard to see how this could have caused the injury she describes and illustrates in the pictures on Exhibit 4. Her initial assertion that this went on all night ("seemingly forever") was shaken in cross-examination. She admitted it did not go on all night. She refused to accept counsel's suggestion that it went on for 20 to 30 minutes by saying that "there was a window and it was dark" and "I did not have a watch".

[41] The pictures (Exhibit 4) are not dated. In cross-examination, the computer date stamping of the pictures were produced (Exhibit 10) and it would appear that the pictures were not taken a week after June 11, 2012, but the next day after June 11, 2012. The witness could not explain this discrepancy in her evidence.

[42] The Crown urges upon me that the mere fact that she left for a shelter on two occasions is some confirmation of her allegations. That is true but there are many reasons why a woman would leave her husband and without any other place to go (as was the case here) then the attendance at a shelter is the only alternative. I accept it as some possible explanation of why she left but it is not determinative of the issue.

[43] With regard to her allegations that the defendant would constantly twist her arm, the defendant pointed out that she was a school bus driver and was opening and closing the door of a school bus with her right arm (including her elbow) many times each day. She did not resile from her position that the defendant was twisting her arm but agreed that the repetitive actions of opening and closing the door could lead to the type of injury that she describes (I note the medical notes of her doctor indicate that the injury could be "epicondylitis", which is more commonly known as "tennis elbow".).

[44] The witness generally was not very clear in any of her allegations. She would often answer a question about a specific aspect of his abuse by saying that he would always say or do this or that, without telling us specifically what happened on this day or time. It is perhaps conceivable that the abuse was so pervasive and continuing (she said he would attempt to put her head into a toilet with standing feces about once per month) that she is unable to distinguish one event from the other. It may also be that the specific acts she complains of did not happen at all or not in the way that she describes. Unfortunately, she would joust with counsel over many issues, most of which were not very relevant to the proceedings. She had difficulty accepting defence suggestions such as her first denial that she had eczema. Later in the cross-examination she admitted she did indeed have eczema but was at pains to point out that it was not on her ears (perhaps as a means of protecting her allegation that the defendant would "tweak" her ears). She would speak obvious contradictions such as saying that she could not go to her father-in-law for any help (he lived right next door) and then said that she loved him and he was like another father to her.

Conclusion

[45] The assessment of credibility is not an exact science. With regard to the complainant's evidence, it is largely uncorroborated other than the photos of some bruising after she left the home. I have stated that the dates as to when they were taken do not coincide with her viva voce evidence. While there is some support for her position, I ultimately am not satisfied that they are of much assistance.

[46] In sum total of all of the evidence, I cannot say that I am without doubt about the Crown's allegations.

[47] I therefore acquit the defendant on all counts.

Signed: "Justice P.N. Bourque"

Released: June 28, 2017