Court File and Parties

Ontario Court of Justice

Date: 2017-05-18

Court File No.: Newmarket 16-04917

Between:

Her Majesty the Queen

— and —

Lutz Ewald Schmidt

Judgment

Evidence heard: March 8, May 18, 2017

Delivered Orally: May 18, 2017

Counsel:

• Ms. Jean Aha Kim — counsel for the Crown
• Ms. Marie Tania Bariteau — counsel for the defendant

KENKEL J.:

Introduction

[1] The complainant and the accused argued about his collection of mannequins. He testified that they were for business and resale only. She testified that he collected only female mannequins and dressed them up in wigs and clothing and then put them around their house. The complainant testified that the accused had about 700 mannequins in several storage locations that were expensive. When she found out that he'd borrowed money they didn't have in relation to the mannequins, they argued. Later, as she went to leave with him for shopping she found a mannequin blocking the hallway and in frustration she kicked the mannequin. She testified that the accused threw her to the ground. She suffered a broken leg and significant bruising to her arm and shoulder. Mr. Schmidt explained that he pushed her away from the mannequin to prevent damage and the complainant fell and twisted as she did so causing the injuries.

[2] The submissions of both counsel identified two central issues for determination:

• The credibility of the witnesses
• Whether Defence of Property s.35 applies

Credibility

[3] Before reviewing the evidence relevant to credibility I wish to make it plain that this is not an inquiry into the accused's character or disposition in relation to the mannequin collection. Any observations or conclusions in that regard would add nothing to the Crown's case and would have no bearing on credibility. It is however necessary to discuss the circumstances surrounding the mannequin collection in some detail as the factual context is very relevant to explain the reasons for the incident, the credibility of the witnesses and the motive for the accused's reaction.

[4] Considering Mr. Schmidt's testimony in the context of all of the evidence I find he was not a credible witness. He did not tell the truth about his mannequin collection, omitting details that go directly to the source of the marital conflict and his motive to commit the offences. Mr. Schmidt testified that he collects mannequins for business purposes only and holds some in his house for lack of other storage. The photographs taken at the house show that the mannequin collection was plainly not solely for a business purpose. His home collection includes only female mannequins with some young child mannequins. They are not stored as one might store product for a business but rather set up about the house. The mannequins are wearing wigs and clothing which would not make sense if they were mere items warehoused for sale. One half mannequin is set up with the knees on the floor and the buttocks area exposed. That mannequin is wearing high heels and black stockings. There's a child mannequin in the same bent over position with black short stockings on the feet. In the accused's bedroom his bed is surrounded by female mannequins, all dressed and wearing wigs. Each of the mannequins is set up so that they're facing towards his bed. Elsewhere in the basement a mannequin limb sits atop boxes of sexual magazines. The accused's testimony regarding his limited business purpose for possessing the mannequins is plainly untrue. That's relevant as it goes to the reason for the ongoing dispute with his wife and the nature of his reaction when she kicked one of his mannequins. I find the accused's lack of candor on this point detracts from his credibility overall as a witness.

[5] He presented himself as a frail person in an apparent effort to show he could not have pushed his wife on June 29th with much force, but in relation to the April incident he testified that he believes he was strong enough to hold back his much younger and fitter wife from hitting him. I accept that he had health difficulties at both times but he was mobile and I find nothing about his health would have made it impossible for him to have committed either alleged offence.

[6] His evidence as to the June incident doesn't make sense. He testified that his wife said, "out of the blue" "I hate these mannequins" then she started kicking one. He held her and then pushed her away. He says she fell but he denied he threw her to the ground. To account for the injuries he added the unlikely circumstance that she twisted in the air while she was falling. His evidence left out the plain reasons for his wife's frustration. His account is unlikely and is not reasonably consistent with the injuries shown in the photographs.

[7] Mr. Schmidt admits that he has no recollection of the incident in April. His speculation as to what might have happened that day has no evidentiary value. His one recollection – that he has never put his hands around his wife's neck is contradicted by her credible evidence.

[8] I agree with the defence that it's plain the complainant still loves her husband. She testified in a manner generally sympathetic to him and at times appeared to be a reluctant witness. She did however answer questions about the incident directly and provided detail when requested. She was candid about the things she did not know such as the exact mechanism of the push and fall that caused her injuries. She was responsive in both examination-in-chief and in cross-examination. Her evidence was internally consistent and it logically explained the reason for the disputes, the progress of the argument, and the circumstances of the altercation. The photographs of the apartment are consistent with her description including the details of the mannequin collection. The photographs of her injuries are consistent with her evidence and the forceful push she described that caused her to fall hard so hard to the floor that she was badly bruised and her leg was broken. While she minimized the prior incident, when asked she described another argument over mannequins in which the accused put both his hands around her neck without causing any injury. Her evidence again logically explained the progress of that incident to the point of the altercation. She showed that she remembered the details of both events, and she was candid about those aspects she could not remember. The push was sudden, without warning and she immediately suffered serious injury so I do not find it unreasonable that she was not aware of the exact mechanism of the push or her fall. I don't find that reasonably detracts from her credibility in the circumstances. I find that she was a credible witness and I accept all of her evidence.

Section 35 Defence of Property

[9] Section 35 does not assist the accused in relation to the June incident. There's no evidence that the wife's kick to the mannequin caused any damage or even left a mark. In that context the accused could not reasonably believe that his wife was about to "damage or destroy" his property as required by that section. Further, his response was unnecessary and completely disproportionate to the wife's action.

Conclusion

[10] On the whole of the evidence I find that the accused was not a credible witness. I cannot accept his evidence nor could it reasonably leave a doubt either alone or in combination with other evidence.

[11] The credible evidence is consistent only with the complainant's account. It's plain that the mannequins were not mere inventory but meant much more to the accused than he admitted at trial. When she kicked one he reacted with strong force, throwing her to the ground and causing injuries to her arm, shoulder and breaking her leg. When the matter was investigated, the prior incident involving an argument about the same ongoing issue was revealed. I can find no credible evidence which reasonably could leave a doubt on either count.

[12] There will be findings of guilt on both counts.

Released: 18 May, 2017

Justice Joseph F. Kenkel