Court File and Parties

Ontario Court of Justice

Date: 2017-08-23

Court File No.: Durham Region 998 17 27009

Between:

Her Majesty the Queen

— and —

Guesly Gemelus

Before: Justice J. De Filippis

Heard on: May 8, 9 & June 23, 2017

Reasons for Judgment released on: August 23, 2017

Counsel:

Mr. I. Skelton — counsel for the Crown

Ms. I. Gavran — counsel for the defendant

Judgment

De Filippis J.:

Facts and Charges

[1] The defendant was tried on an Information with several counts relating to two separate dates: It is alleged that between August 17 and 23, the defendant failed to comply with a recognizance by communicating with Dzenita Omerovic, theft of her telephone, and assaulting her. It is also alleged that on September 2, 2016 the defendant failed to comply with a recognizance by communicating with the same complainant, forcibly confining her and assaulting her. There is no dispute that at all material times the defendant was bound by a recognizance not to associate or communicate with the complainant. I heard from the complainant and P.C. Binc. These reasons explain why I find the defendant not guilty of all charges, except the offences of failure to comply with a recognizance.

Background

[2] The complainant is 36 years old. She is a single mother of an 11 year old girl. She testified that met the defendant in front of a nightclub in Vancouver when he visited from Toronto. The parties had a "long distance relationship" until May 24, 2016. On that date the complainant left her daughter with her mother and came to Toronto to "have a life together" with the defendant. She returned to Vancouver one month later after the defendant was charged with offences not before me and placed on a recognizance in June requiring, among other things, that he not associate or communicate with her.

[3] According to the complainant, the defendant repeatedly contacted her after his release on bail. On July 28, 2016 she returned to Toronto to be with him. She explained that she "really liked" the defendant and "wanted to give him a second chance". She initially went to a hotel and then moved into the home in which the defendant resided with his mother. She worked at a nightclub in the Jane and Finch area. At the end of August, she moved to Whitby where she lived and worked at the Royal Motel. During this period of time, and notwithstanding the aforementioned bail order, the parties were together "almost every night".

First Incident (Late August)

[4] The first incident is said to have occurred at the hotel occupied by the complainant on her return to Toronto and, according to the complainant, resulted from a dispute over a woman named Amanda Lee. The latter was the defendant's surety with respect to the recognizance previously referenced. The complainant testified that the defendant told her she "was just somebody who bailed him out but he did not love her". In late August, the complainant and defendant were in her hotel room and Ms. Lee arrived outside the building. The defendant was talking on the phone with Ms. Lee. They conversed in French. The complainant said that although she does not understand that language, she knew the defendant did not want her to meet the other woman. She was determined to do so because she was suspicious about their relationship. The complainant testified that the defendant blocked her from leaving the room for 30 minutes - until Ms. Lee had departed.

[5] The complainant explained that the defendant blocked her "with his body and hands extended across the doorway". She added that when she went to the window in an attempt to speak to Ms. Lee, the defendant grabbed and pulled her onto the bed and covered her mouth and nose. She testified that, "I couldn't breathe, one more second and I would have died". However, the defendant released her and they sat on the couch. He hugged her and said, "sorry babe, I'll take care of you, don't go to work tonight". The parties talked for two hours. The complainant testified that she was "in shock". As they conversed she noticed a bump on her on eyebrow, a cut to her lip, and redness to her neck. The defendant "begged" the complainant not to call the police and took her to Canada's Wonderland. She agreed not to report the matter. In this regard, she testified that "he's very good at it, he totally brain washed me" and promised he would no longer have anything to do with Ms. Lee.

Second Incident (September 2-3, 2016)

[6] The second set of charges arise from events at the Royal Motel in Whitby. The complainant testified that during this time, the defendant "was pretty much living with me". On September 2, 2016 the defendant asked her to rent a car and take him to the courthouse to pay some fines. She did so as "he does not have a credit card". The complainant said that on returning to the motel, the defendant "told me how much he loved me" and "went for a nap" while she made her way to work. However, she did not trust him and returned to the motel within 15 minutes to confirm if he had really gone to sleep. She found that he had. She took this opportunity to snoop on his cell phone and learned that there had been an exchange of messages between "G-man", the defendant's "street name", and an unknown person. The complainant testified she called the number associated with the latter and "a girl answered". The complainant confronted the defendant about her discovery and they argued about the matter. The complainant testified that she was upset and was blocked from leaving the room by the defendant. She managed to leave and was grabbed by him as she made her way to the rental vehicle parked outside. She "broke free" and ran to the manager's office in the motel. She remained there as the defendant searched for her and then left.

[7] The complainant said she went to work and returned to her room at 2:30 AM. She testified that in the following several hours the defendant repeatedly sent text messages to her and, on one occasion, "banged on the motel room door". She ignored him. During this time, the complainant realized that the defendant had taken one of her two phones. She also testified that she had bruises on her arm from this incident and "the one at the other hotel". Photographs taken by the complainant several days later show bruises to her upper arms.

[8] Later in the morning of September 3, the complainant met P.C. Binc at the motel. He was there on an unrelated matter. She provided a statement to this officer and the defendant was subsequently arrested.

Complainant's Cross-Examination

[9] In cross-examination, the complainant testified that on first meeting the defendant in Vancouver she thought he was "a nice guy". They went out and had fun together. He returned to Vancouver several times before she moved to Toronto to be with him. She added that "his mom is super nice" and his family made her feel special. The complainant was shocked to learn the defendant had "a girlfriend". She testified that she spoke to "his baby mother, Bianca and also another one of his girlfriends". She was angry with him "but I was more angry at myself" on realizing the defendant "had done this to other girls" and "that he lied to many women".

[10] The complainant kept in touch with Bianca after the defendant was first released on bail on June 24, 2016 and they shared stories about his bad behaviour. She ended this contact after the defendant's arrest in September. However, the complainant had communication with another one of the defendant's friends, Amanda George. On September 18, in reference to the defendant's house arrest condition, the complainant sent a text message to Ms. George and stated, "I don't wish bad on anyone but he really does deserve the worst, I gave him a chance….but he fucked up….LOL ("laugh out loud")". In trial testimony, the complainant explained that she was very emotional when she said this and that this is how she felt at the time. In this regard, in a video recorded interview with the police, the complainant stated, that she believes in "Karma" and that "what goes around, comes around".

[11] Defence counsel suggested that the complainant was a jealous person and obsessed with the defendant. In this regard, she pointed out there are 65 text messages from the complainant to him after the first assault allegation. In the midst of this cross-examination, the following exchange occurred:

Complainant: May I just say something?

Defence counsel: OK

Complainant: You are beautiful

Defence counsel: Thank you

Police Officer's Evidence

[12] P.C. Binc testified for the Defence. He stated that on September 3, 2016 at 10 AM, he was called to the Royal Motel about an unrelated matter and saw the complainant in the hallway. They recognized each other because of a prior matter. The complainant told him "she was having problems with a man and that he was on terms to stay away from her". The officer did not notice any bruises on the complainant.

Legal Standard

[13] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty.

Submissions

[14] Defence counsel argued that the complainant is motivated to fabricate because she feels betrayed by the defendant. At the very least, it is submitted that her evidence is coloured by her anger and raises a reasonable doubt. Counsel pointed to a number of inconsistencies between her trial testimony and prior statements to police. It is asserted that the numerous text messages sent by the complainant reveal an obsessive and resentful person. Counsel suggested that the complainant's credibility should also be seen in light of the fact she is a party to the defendant's failure to comply with his recognizance. She also argued – inconsistently – that the Crown has not proven beyond a reasonable doubt that the defendant violated his bail order by associating with her.

[15] The Crown conceded that the first incident is not confirmed by independent evidence and that, in some respects, the complainant's account is vague. Counsel argued that these concerns are not present with respect to the second incident; the photographs of bruises, record of text messages, and the copy of the car rental agreement corroborate a clear account of events by the complainant. The Crown submits that the inconsistencies in the complainant's evidence identified by the Defence are not significant and that the fact that PC Binc did not see any bruises on her simply means they had not yet developed on the body.

Analysis and Findings

[16] The complainant testified that the text messages in question are between her and the defendant. The content of those messages leaves no doubt that she is correct. This fact alone means he is guilty of the count failure to comply with the recognizance with respect to the second incident. Moreover, I have no doubt the complainant is correct in stating that the parties associated with each other after her return to Toronto in July 2016. There is no suggestion she knew anybody other than the defendant in that city and the content of some later text messages references this contact. I accept that they spent much time together. Accordingly, I find the defendant guilty of both counts of failure to comply.

[17] The complainant's evidence does not justify findings of guilt with respect to the remaining charges because it does not constitute proof beyond a reasonable doubt. I accept that the parties argued and there may have been one or more physical confrontations. However, I cannot find that the two incidents in question unfolded as described by the complainant.

[18] In coming to this conclusion, I have placed little weight on the inconsistencies relied upon by Defence counsel. I agree with the Crown that they are not significant. However, other arguments presented by the Defence are persuasive. That the complainant was a party to the offences of failure to comply with a recognizance is a relevant consideration. The fact that she did not tell P.C. Binc she had been assaulted also affects her credibility. More important is how the character of the complainant affects her reliability.

[19] On the complainant's version of events, the defendant is a cad who gave her cause to be suspicious about his true intentions. Nevertheless, the record before me shows the complainant to be obsessive, occasionally vindictive, and insecure. With respect to the latter, her observations about Defence counsel's physical appearance are instructive. In all the circumstances, assuming the complainant testified in a truthful manner, I cannot accept her evidence as trustworthy because her perception of events is probably affected by the aforementioned characteristics. Quite apart from these circumstances, the complainant's testimony about the first incident is confusing in some essential details.

[20] The Crown has met its burden with respect to the failure to comply offences, but not the others. Those charges are dismissed.

Released: August 23, 2017

Signed: Justice J. De Filippis

Footnote

[1] The Information initially alleged that these offences occurred on July 28, 2016. The relevant counts were amended at the end of the Crown case to accord with the different evidence by the complainant.