ONTARIO COURT OF JUSTICE

Citation: R. v. T.H., 2017 ONCJ 709
Date: October 19, 2017
Court File No.: Toronto Region

BETWEEN:

HER MAJESTY THE QUEEN

D. Bonnet,
for the Crown

— AND —

T.H.

T. Bryant,
for the accused

HEARD: August 14, 18, 19, 24, 2017

FELDMAN J.

Introduction

[1] T.H. entered not guilty pleas to charges of Assault and Forcible Confinement. It is alleged that on August 20, 2016, in the course of an argument, he punched A.P. in the eye and then confined her briefly in his home against her will.

[2] The Crown called the complainant in support of its case. Mr. T.H. testified in his own behalf. In addition, he called as witnesses, Ax.P., a law student, as well as his nephew, H.H., whose nickname is […].

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

The Evidence

[4] At the time of these events, Ms. A.P. had been in a dating relationship with Mr. T.H. for about one year. She lives in Whitby, he in Scarborough. Mr. T.H. does not own a car.

[5] The complainant told the court that the two of them argued a lot. On one occasion, she was upset that the defendant referred to her daughter as a menace to society. Once, she called police when the accused was intoxicated and argumentative while at her home, although she later drove him back to Scarborough. On another occasion, he had her car but was late to pick her up at the Rouge Hill Go-Station. She was upset with him and he became agitated. She got out of the car near a police station and went in out of concern for her own well-being. His father picked him up.

[6] On Aug. 20, the defendant was painting his living room. The complainant drove in to pick him up so that he could stay with her and help her pack as she was moving the next day. But first he wanted her to drive him to a friend’s home, 3-4 blocks away, so that he could cut his hair for pay. The complainant was not pleased but decided to do so only on condition he not return home with her. She says he agreed.

[7] Ms. A.P. testified that this took about 20 minutes and that she waited to drive him home. She says that when she pulled into his driveway he refused to leave the car, indicated he was coming to Whitby and took her cell phone to hold her there.

[8] The complainant said she felt him becoming agitated, so she relented and decided to bring him to Whitby. She put the car in reverse, but says the defendant put the car in park and took the key out of the ignition. They struggled over the key. She claims he dug his fingers into her right hand to make her let go of the key causing a cut and then punched her in the eye.

[9] Ms. A.P. got out of the car and asked for her key back. She testified that the accused then grabbed her from behind and forced her into the house, where he had her sit in a chair in the kitchen. She recalls him telling her he didn’t want to go to jail.

[10] The complainant claims the defendant’s sister and nephew were in the kitchen at the time. She says his sister told them to stop fighting. She would have seen her swollen eye and heard her brother say he did not want to go to jail. She says his nephew gave her a frozen food product to help reduce the swelling.

[11] Ms. A.P. asked for her key and phone and walked towards the front door. She says the defendant forced her into the bathroom and then pushed her backwards several times when she tried to leave. She believes this went on for about 10 minutes. He finally agreed to give her back her key and let her leave. He retrieved his cell phone from her car and let her drive off.

[12] Ms. A.P. called the police. The accused was arrested. She had a black eye for 3 weeks and a cut on her hand. She was pregnant at the time. Their son was born in […] of this year.

[13] Ms. A.P. was aware that upon his release on bail, Mr. T.H. was subject to a non-communication order. When asked if she texted him nonetheless, she initially admitted only sending him a photo of their child. However, it became apparent that during a 3-week period commencing April 4, she texted him at least 13 times. She understood contact could get him arrested.

[14] The content of the texts reflects poorly on the complainant’s judgment. On April 4, she wrote, having sent the defendant a photo of his newborn son: “it’s sad, you can’t even look at your son’s picture”. The next day, she texted him: “just look at the pictures, you’ll miss seeing him this small…he’s going to get big fast”. On April 9, she said: “pls look at the pictures…going back to sleep, cuddling our son now”.

[15] Ms. A.P. claims she was moved to communicate in this way by post-partum emotions. However, there is a clear taunting element to her texts, although she denies such an intention. I infer as a matter of common sense that she understood that any response could jeopardize the defendant’s liberty.

[16] On April 12, she texted: “today is the last day I send pictures, sad it’s that easy to ignore your own son, can’t say I’m surprised…”. This is taunting.

[17] She went on to write: “you should have taken responsibility for your actions, instead you want to continue to control me and make me go to court to testify against you, you could have taken responsibility and been done this by now, not have to ignore your flesh and blood”. A good example of control.

[18] She took this to a new level on April 17, texting: “want to meet your son? I’ll be at Tim Horton’s by Hwy now for 30 minutes”. Later that morning, she wrote: “pls respond to me, I need to know you have been getting these messages”. She was inviting a breach.

[19] Ms. A.P. sent pictures on Facebook to his phone. Had the accused clicked on the message it would mean he was in communication with her. On September 19, there were 12 missed messages from the complainant on his phone.

The Defendant’s Evidence

[20] Mr. T.H. is 27 years old. He says he and A.P. began their relationship in November 2015. Beginning in January 2016, he would stay with her and her 2 children in Whitby 2-4 times a week. He says they had arguments after which she wouldn’t hesitate to call the police.

[21] In the previous December, he used her car to visit his cousin and had her vehicle. He says the complainant called him to bring it back or she would call the police. He says A.P. came in a taxi and retrieved her car. He only came outside to give her the key.

[22] He also claims she would scream at him, his son, T.J., and her own children. He says he was only hurt, not angry when she called T.J. a “little fucker”. He was less than forthcoming in conceding only that he “may” have called her children names. He might have called her daughter a menace to society. He says he stayed with the complainant because she was a good person who sometimes couldn’t control her own anxiety but would always want him back, a rather patronizing comment.

[23] In May, they were drinking at her home. He says she told him to leave and called the police when he refused. He didn’t have enough money to take a taxi home. She threw his clothes in the backyard. He waited for the police in front of her house. They refused to drive him home. She later did and, he says, promised not to call the police again.

[24] In June, he says he was 15 minutes late to pick A.P. up at the Go-Station. He claims she was upset, while he was calm. She drove to the police station. He left. She later called him to return to the car. His father picked him up. He says she later promised not to call the police again.

[25] In July, they went with their children to a waterpark to celebrate the birthday of her son, K.P. The children went swimming. He left to have a cigarette in the car. She was upset and marched the children over to him and insisted they leave. That night she told him she was pregnant with his child.

[26] On August 20, he was painting his living room. She came in the afternoon and lay on the couch, as she was tired. She had paid for the paint. He asked her to drive him to his friend’s home to give him a haircut. He recalls that as the complainant drove back to his house she told him she didn’t want him to come to Whitby because he had wasted her day and not made time for her.

[27] Mr. T.H. testified that when the car pulled into the driveway he tried to get out, but she put the car into reverse causing him to remain. The defendant says she put the car in park, pulled at him and then began to punch him in the chest and face. He told her to stop, although he did not just get out of the car. He claims that as she leaned over to assault him, he put his hands up in self-defence and accidentally struck her in the eye with his elbow causing it to swell. He says it was not a hard blow. He denies struggling over the car keys.

[28] The defendant says he panicked because of the injury to the eye and offered to put some ice on the swelling. He did so and says A.P. came willingly into the house. He claims there was no one home at the time. He denies she ever went into the washroom. She then left.

[29] H.H. recalls that the last time he saw A.P. was on the day his uncle was painting the house. He denies giving her an ice pack and says he has never seen her with a black eye. He is an interested witness.

Positions of the Parties

[30] Ms. Bonnet, for the prosecution, submits that Ms. A.P. was a credible witness and that the severity of her eye injury tends to support her testimonial reliability. She says the defendant’s claim that he was victim to her volatile nature is contrived and should be rejected. She suggests that the texts and phone messages were collateral issues.

[31] Mr. Bryant, for the accused, submits rather that Mr. T.H. was subject in this troubled relationship to the complainant’s overreactions and that on Aug. 20 he accidentally struck Ms. A.P.’s eye. He says, as well, that the nature and quantity of her subsequent texts reflect on the complainant’s character. He points out that the defendant’s nephew contradicts the complainant on a material fact in issue. He submits that in light of reliability concerns on both sides there is uncertainty as to what occurred on Aug. 20.

Questions of Credibility

[32] It is clear that the complainant and accused had a contentious relationship. Tension over the children, arguments while drinking, conflict over use of her car. In a number of incidents the defendant did as he pleased, for example, when he refused to return the complainant’s car, leaving her to take a taxi to retrieve it; in sauntering off at a waterpark, leaving Ms. A.P. to care for the children; and spending most of Aug. 20 as he wished although she needed his help packing for her move the next day. It permits the inference of a controlling nature.

[33] It is part of the defendant’s narrative that in the course of their disputes he was the one who turned the other cheek. He claims to have been the victim of the complainant’s anger, instability and overreactions.

[34] I did not discern embellishment in the evidence of the complainant. I found her to testify in a straightforward manner in relation to the material facts in issue. It is to her credit that she admitted to prior behaviour that included insults, name calling and questionable texts.

[35] Ms. A.P. stood her ground in the course of her conflicts with the accused. On the evidence, I infer her calls to the police were in response to escalation, not tactics. She initially minimized the nature and scope of her texts post-assault, I view them, although taunting to a degree, as rooted in emotion. Her invitation to the defendant to meet with her after being charged demonstrated poor judgment.

[36] The nature, severity and immediacy of the injury to her eye tends to support the complainant’s assertion that the blow to her eye was intentional. A police photograph shows significant discolouration and swelling, consistent with a hard blow. That she subsequently left Mr. T.H.’s home with a cold compress to drive home, rather than remain to find relief, permits the inference that she was moved to get away from the defendant as soon as she could. These are material markers of credibility.

[37] To the contrary, I did not find Mr. T.H. to have testified in a straightforward manner. For example, he shifted his evidence in cross-examination from never using bad names to describe the complainant’s children to leaving open that possibility. That lack of candour is troubling. It is, as well, unlikely he was not upset, as he attests, when Ms. A.P. called his son a vile name.

[38] In addition, given my finding that the complainant was a credible witness, I accept that she left her vehicle at the Pickering police station, not in overreaction to an argument, but rather out of concern with its escalation. On the evidence, I view as self-serving Mr. T.H.’s assertion that he was not upset and remained stoic in the face of this and other disputes.

[39] In the incidents described earlier leading to conflict, it was Mr. T.H. who was in control in the sense of doing things his way and at his convenience. He took advantage of his privileges with her car. I don’t accept that on Aug. 20 in his driveway the defendant was trapped in the complainant’s car. In fact, he agreed she preferred that he not come back to Whitby with her. It was open to him to leave the car. Of significance, the immediate swelling and severe nature of the injury to the complainant’s eye that took 3 weeks to heal belies the assertion it was caused by a blow that was not hard.

[40] I accept Ms. A.P.’s evidence that the defendant struck her in the eye. On all the evidence I am not left in reasonable doubt that it was accidental. Mr. T.H. will be found guilty of assault.

[41] I am less certain on the forcible confinement allegation. I accept that the complainant did not want to remain in the accused’s home. In fact, her leaving while injured supports her evidence in this regard. As well, I give little weight to H.H.’s evidence given his lack of maturity and independence. However, I cannot say that I reject it entirely. While it is probable that Ms. A.P. was confined by the defendant who feared the consequences of his actions, I am left in reasonable doubt in that regard. The forcible confinement charge will be dismissed.

Released: October 19, 2017

Signed: “Justice L. Feldman”