Court Information

Ontario Court of Justice

Between: Her Majesty the Queen

D. Bonnet, for the Crown

— And —

Rackeem Rowe

R. Kodsi, for the defendant(s)

Heard: April 12, July 27, 2017

Decision

FELDMAN J.:

Introduction

[1] Rackeem Rowe entered not guilty pleas to charges of Assault and Fail to Comply with Probation. It is alleged that the defendant punched the complainant, April Henry, causing her minor injury and in doing so breached a term of his probation that he keep the peace and be of good behaviour.

[2] The Crown called two civilian witnesses, the complainant and two police officers in support of its case. Mr. Rowe testified in his own behalf.

[3] Ms. Henry denied the allegations and testified that it was her irrational behaviour in the course of a mental breakdown that led to the accused being arrested for something he didn't do. In an earlier ruling, I admitted utterances made spontaneously by the complainant for their truth as an exception to the hearsay rule, in addition to observations by witnesses of injuries that permit a circumstantial inference to the contrary.

[4] I must weigh the evidence and credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[5] Two civilian witnesses testified about observations they made of injuries on the complainant's face and utterances they heard her make about having been assaulted by the defendant. Darren Tremblay, age 47, told the court that on December 15, 2016, he was outside in the Galloway-Kingston Rd. area in Scarborough. It was evening. It was cold, dark and snowing. Ms. Henry was crying while walking in her socks in the snow with no coat on. She seemed agitated and frightened.

[6] Mr. Tremblay saw blood above her upper lip. He recalls the complainant telling him that her boyfriend had punched her in the face and that she thought her nose was broken. She did not take up his suggestion to call 911. She would not come back into her apartment building at 4301 Kingston Rd for fear her boyfriend would see her go in.

[7] Mr. Tremblay returned to his apartment. From his window he saw the defendant slide across the hood of a car toward Ms. Henry, who fell down, although he was unsure of the reason. Ms. Henry got up and walked away from the accused who followed her. Mr. Tremblay saw the police approach and apprehend Mr. Rowe.

[8] Albena St. Hill, age 49, was also outside on an island crossing the street towards the complainant. She observed Ms. Henry on a cell phone crying and heard her say, "He's chasing me, he's chasing me".

[9] Ms. St. Hill saw a man she cannot identify running towards the complainant. He was yelling at her. Ms. St. Hill called 911. She saw the man grab hold of her arms and, she believes, shake her, although that was neither in her call to the police nor in her statement. She heard the man demand she come back home. The complainant told him to get away from her. She ran to a car dealership. He ran after her.

[10] These two independent witnesses testified in a straightforward manner without embellishment. They were credible witnesses. They were not seriously challenged in cross-examination on the essentials of their material evidence. I accept their evidence as objective and reliable.

[11] April Henry testified that she was not assaulted by the defendant with whom she is in a relationship and whose child she is carrying. She said she was acting irrationally as a result of an emotional breakdown that evening. She said the accused had been trying to calm her down. She denied he had punched her earlier.

[12] Ms. Henry told the court she had left her son with a neighbour as she feared she might hurt herself or her son as she had threatened to do during a similar breakdown in 2015. She felt in a hysterical mood.

[13] Ms. Henry recalls the defendant coming outside as he was worried about her. She agrees she told him to get away from her. She believes that they both ended up on the ground when she slipped and he tried to catch her. She denies he slid across the hood of a car to reach her.

[14] She says the accused hugged her and she broke down in his arms. The police separated them and arrested Mr. Rowe.

[15] Ms. Henry denies the defendant chased her or shook her. She says he only yelled at her not to cross the road. She declined to give a statement and sought to have the charges withdrawn.

[16] She says that when she is in a state of depression or anxiety she can say things in anger or that have no meaning. She told the court there was no blood on her lip that was instead chapped or cracked.

[17] P.C. Shayne Worsdale arrived on scene and saw the couple hugging. He arrested the accused. He observed that the complainant had a fat lower lip with a little blood above it, redness on the bridge of her nose and blood smudges on her sweatshirt and on her abdomen. P.C. Daniel Johnson saw minimal blood on the complainant's bottom lip. She told him she had bitten it. She also had a broken fingernail.

[18] Mr. Rowe testified that he spent the day at the complainant's apartment. He told the court that around dinner-time Ms. Henry began to act irrationally over problems with her mother. He tried to help by calling the mother, but was unsuccessful in reaching her. He says the complainant became louder and more depressed. He tried hugging her, but she snapped, pushed him off and left without shoes or a coat.

[19] Mr. Rowe says that he followed his girlfriend outside in order to calm her down and bring her back inside. He denies sliding over the hood of a car to reach her. He says she told him she was going to walk to her mother's home in Brampton. He denies laying hands on her. She continued walking away from him, but she fell. He denies she told others he was chasing her but agrees she yelled at him to get away from her. He told the court that she eventually calmed down and that they hugged as the police arrived. He did not see any blood on her face.

Questions of Credibility

[20] I assess the testimonies of the complainant and accused in the context of the civilian evidence that I find to be both objective and reliable. I am not left in reasonable doubt on this evidence that the utterances were made or that the complainant was in flight from the accused and in a state of fear.

[21] I would not rely on the evidence of Ms. Henry. I reject her testimony on the question of the utterances being made, that her lip was only chapped, that Mr. Tremblay did not offer to bring her inside the apartment building, that the accused did not grab her arms, that she did not yell at the defendant to get away from her, that she was not in fear, and that her words, whatever they were, had no meaning given her irrationality that stood in contrast to her calm and coherent demeanour while speaking to the police.

[22] I infer on this evidence that Ms. Henry's testimony on these material facts in issue was contrived and self-serving in an attempt to challenge the civilian observations. She did not help her cause.

[23] In similar vein, I give little weight to the accused's testimony, in part because of my acceptance of the civilian evidence. Contrary to his evidence, I am not left in reasonable doubt that he slid across the hood of a car in running after the complainant, that he was yelling at her, that she told him to get away from her, that he grabbed Ms. Henry by the arms and that they both fell down.

[24] The complainant had a car. I don't accept the defendant's evidence that she threatened to walk to Brampton in her socks. Rather, I infer she sought to get away from him, not as a result of a breakdown, but quickly and in fear. Her demeanour while talking to the police belies an inference of mental breakdown. I view her hugging of the accused upon arrival of the authorities as an attempt to change the narrative.

Conclusion

[25] I am left with the civilian evidence from which to draw objective inferences of fact. I accept that the utterances, although less than precisely recalled, indicate that the complainant was assaulted in some fashion in her apartment causing minor injury to her face and while in distress and fear was moving quickly away from the defendant. The lack of clothing, in addition to the blood on her lip and redness on her nose provide support for that inference.

[26] I am satisfied beyond a reasonable doubt on this evidence that the only reasonable inference to draw is that Mr. Rowe struck the complainant without her consent while in her apartment. It follows that he breached a term of his probation to be of good behaviour. There will be findings of guilt.

Released: August 4, 2017

Signed: "Justice L. Feldman"