Court Information
Date: August 11, 2017
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Nathan Neadow
Before: Justice Michael G. March
Heard on: August 11, 2017
Reasons for Judgment released on: August 11, 2017
Counsel
David Nugent ……………………………………………………….counsel for the Crown
Daniel Howard …………………………………………………….counsel for the accused
Judgment
March, J. (Orally):
Introduction
[1] Ms. Connie Stewart and the accused, Mr. Nathan Neadow were in a relationship, which lasted approximately 8 years.
[2] It ended October or November of last year, 2016.
[3] The product of their union was a young boy, Tristan Neadow, now 7.
[4] Like so many children in this country, sadly, Tristan Neadow is caught in the middle of a custody and access battle.
[5] The family litigation is being waged in the background to this criminal trial.
April 3, 2017 – Incident
[6] On April 3, 2017, Mr. Neadow is alleged to have assaulted Ms. Stewart contrary to Section 266 of the Criminal Code of Canada.
[7] The incident involved a heated argument between Nathan Neadow and Connie Stewart about Tristan Neadow's problems at school. Tristan Neadow was acting out – largely one might assume due to the fighting he was watching unfold between his parents.
[8] On the day in question, Nathan Neadow came from his access visit with Tristan around 4:00 p.m.
[9] At some earlier point in time, he had served Court papers on Connie Stewart seeking custody of their son – looking to flip the arrangement, so to speak.
[10] Connie Stewart may or may not have served responding materials by April 3, 2017 as well.
[11] This is all to say, Nathan Neadow and Connie Stewart were not getting along well.
[12] Connie Stewart read a note to Nathan Neadow regarding Tristan's behaviour written by his teacher.
[13] Nathan Neadow agreed to do certain things to discipline his son, but did not want to see his two hour access window eaten up with talking to his ex. Voices were raised.
[14] Eventually, Connie Stewart left the bedroom where the conversation was taking place, coincidentally, Tristan's room.
[15] Quite understandably, Connie Stewart and Nathan Neadow wanted the conversation to occur out of the earshot of Tristan.
[16] When it got loud, Connie Stewart's daughter, Alexis Stewart, came to investigate the calamity.
[17] Perhaps not in the nicest of ways, Nathan Neadow asked Alexis Stewart not to concern herself with the discussion.
[18] Connie Stewart stepped in to protect Alexis, not from physical harm, but to say that Nathan Neadow had no right to tell her [Alexis] where or where not to be.
[19] The evidence is divergent on whether Nathan Neadow, who had had enough at this point, asked Ms. Connie Stewart to step aside before he came into physical contact with her.
[20] Connie Stewart says he used the tips of his fingers with both hands to push her with enough force under her collarbone to cause her to take a step back.
[21] Nathan Neadow says he made a waving or sweeping motion with two fingers of his right hand, the index and big, to move Connie Stewart aside to leave. She was blocking his way. The gesture he made was akin to moving someone to pass through a crowd.
[22] I am not certain that the case of W.D. applies.
[23] Even if I completely accepted Nathan Neadow's version of events, which I do not, the act he says he committed would constitute an assault.
[24] I reject Nathan Neadow's evidence that he asked Connie Stewart to move.
[25] I find instead that he had had enough. He wanted time with his son. It was precious. He could see no point in continuing the argument or have it escalate any further than it had.
[26] I accept Connie Stewart's and Alexis Stewart's evidence that Nathan Neadow used the tips of his fingers to apply force to the person of Connie Stewart sufficient to cause her to take a step back.
[27] He then left Connie Stewart's home, unfortunately in my view, without having had the opportunity to exercise his access visit with Tristan.
[28] This was perhaps wise on his part, because Connie Stewart was directing her daughter Alexis to call police. Things were going downhill quickly. Ultimately, Nathan Neadow turned himself into police when asked to come to the station some 90 minutes after the incident.
[29] Connie Stewart was seizing on this opportunity to make as much of the incident as possible to gain an upper hand, at least in her mind, in respect of the ongoing family litigation.
Conclusion
[30] 'De minimis' is not of assistance to Nathan Neadow in this case. The Crown need only prove the intentional application of force, without consent, not an intention to cause harm.
[31] Almost every use of force, by one partner against another in a domestic context, creates a reasonable apprehension of harm to a societal interest. I take my direction from what the Court of Appeal in this province had to say in R. v. Carson [2004] O.J. No. 1530:
"The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated."
[32] However, even though I am finding Nathan Neadow guilty of the assault, I emphasize, it was one of an exceedingly minor nature. It was technical. But at law, I am compelled to convict.
The Honourable Justice M. March