Court File and Parties

Ontario Court of Justice

Date: 2018-07-13

Court File No.: Brampton 3111 998 16 11892

Between:

Her Majesty the Queen

— and —

David Patterson

Before: Justice G.P. Renwick

Heard on: 20, 21 March, 04 June, 13 July 2018

Reasons for Judgment released on: 13 July 2018

Counsel:

• A. Bernstein, counsel for the Crown
• S.J. Passi, Counsel for the defendant David Patterson

Judgment

RENWICK J.: (ORALLY)

Introduction

[1] Mr. David Patterson is charged with a single count of assault against his former domestic partner, Ms. Ruth Jongue. The trial took place over 3 dates. The complainant, her son, and the defendant testified and several exhibits were filed. The main issue during the trial was whether or not the allegation was proven. The case raised issues of credibility. And, although final arguments raised whether or not defence of property or self-defence were at play, this trial can be decided on the basis of the facts.

[2] In order to find Mr. Patterson guilty of this offence, I must be satisfied beyond a reasonable doubt of three things:

i. The defendant intentionally applied force to the complainant;

ii. The complainant did not consent to the application of force applied upon her by the defendant; and

iii. The defendant knew that the complainant did not consent to the application of force upon her.

[3] If I am left in a state of reasonable doubt about any of these elements I must acquit the defendant.

Credibility

[4] This case raises the issue of credibility. In saying that, I recognize that I cannot decide this case as if it were simply a contest of competing versions of events where I am permitted to prefer one version over the other. That is never permissible for a trier of fact because it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offence charged beyond a reasonable doubt. In fact, even if I totally reject the defendant's evidence, I must acquit him unless I am not left with a reasonable doubt about his guilt based upon the evidence I do accept.

[5] In R. v. W.(D.), [1991] S.C.J. No. 26, our Supreme Court clarified for triers of fact the governing principles for deciding credibility cases. In a published article, Mr. Justice Paciocco of the Ontario Court of Appeal elaborated upon these principles:

(a) If you accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously you must acquit;

(b) If you are left unsure whether evidence that cannot co-exist with a finding that the accused is guilty is accurate, then you have not rejected it entirely and you must acquit;

(c) You should not treat mere disbelief of evidence that has been offered by the accused to show his innocence as proof of the guilt of the accused; and

(d) Even where evidence inconsistent with the guilt of the accused is rejected in its entirety, the accused should not be convicted unless the evidence that is given credit proves the accused to be guilty beyond a reasonable doubt.[1]

[6] I am also aware that I can accept some, none, or all of what a witness says as truthful, and this remains so regardless of the role of the witness in the proceedings. Although again, I must remind myself that a rejection of the defendant's evidence is not dispositive of whether or not I am convinced of his guilt beyond a reasonable doubt.

[7] In considering the overall credibility of the witnesses, I have considered the following areas:

• general character;
• motive to fabricate; and
• evidential value.

As well, I have considered the overall reliability of the witnesses' accounts in terms of the following:

• ability to observe;
• memory; and
• presentation.

The Evidence and the Facts

[8] I listened carefully to all of the evidence and took careful notes. As well, I have reviewed transcripts of the evidence taken during the trial. I do not propose to repeat much of the evidence, except where it is necessary to understand my overall findings.

[9] In this case, I found Ruth Jongue generally believable during her testimony. She displayed tears, and apparent sorrow, at the appropriate times. However, the complainant's presentation (she smiled or laughed at parts of her cross-examination) was also problematic at times. Nonetheless, I attribute this more to a sense of exasperation on the witness' part, rather than proof of an attempt to obfuscate or mislead.

[10] Initially, I found during Ms. Jongue's cross-examination that the witness seemed inconsistent about whether or not during the events of the evening in question she had already resolved in her mind that the relationship was over. That said, I did not understand her to be looking for a reason to get even with the defendant for any perceived disagreements. Overall, I was satisfied that Ms. Jongue's account of the events was consistent throughout her evidence in chief and during the great bulk of her cross-examination. That said, during the complainant's cross-examination counsel pointed out several differences in what she told the police and what she told the court. The account the complainant gave in court was not contradicted by any external evidence (except for the defendant's), save in one area, as I will discuss, below. Ms. Jongue's version of events was plausible.

[11] I also found that Ms. Jongue was a balanced witness. She admitted things that painted her in a negative light. For instance, she testified that she was tired of repeating herself when speaking with Mr. Patterson and her refusal to do so began the argument between them on the night before the early morning incident that brought her to court. As well, Ms. Jongue readily admitted in her evidence in chief that she had contacted a witchcraft doctor, or Obeah Man, because she felt hurt by things the defendant had said to her in the past and she had wanted the defendant to also feel the same sort of pain.

[12] There was an inconsistency between what Ms. Jongue claimed her son had relayed to her as an admission of the defendant's, when compared with the testimony of Fedroy Jongue. This was a glaring inconsistency in the complainant's evidence. The complainant's son testified that he told Ms. Jongue that Mr. Patterson had admitted that he had pushed her. This was a far less damaging admission than Ms. Jongue recalls her son relaying to her that morning. In the end, I am not sure which of this witness is accurate on this matter. I did not have the impression that either witness was intentionally trying to mislead me on the point. Rather, if anything, this points out that witnesses may recall an event differently. This was early morning, there were different emotions at play for each of the two witnesses. Although I recognize that this is a significant discrepancy, it does not shake my confidence in the evidence of Ms. Jongue as a whole. Moreover, because this matter relates to an event that took place after the incident that gives rise to the charge it is less significant in my overall assessment of the complainant's credibility.

[13] Counsel raised other apparent inconsistencies in the complainant's evidence in terms of things she told the police or failed to. Ms. Jongue was believable in her responses. The able cross-examination points out that Ms. Jongue was an imperfect witness. That is hardly surprising, nor in and of itself enough of a reason to reject her entire testimony. I can hardly fault the witness for discrepancies on less significant details. Nonetheless, as a result of the cross-examination of this witness, the court maintained an open mind about whether or not the witness was being truthful until the completion of the trial.

[14] As a whole, and despite the several inconsistencies in her evidence, I am satisfied that Ms. Jongue was a truthful witness in respect of the material events of the alleged assault. I find that she was accurate in her testimony of what had occurred that night. However, that is far from the end of the matter.

[15] Fedroy Jongue was a peripheral witness in many respects. He was able to testify to the demeanor of the parties after the alleged physical altercation. He was generally a reserved witness, who testified without any apparent bias for or against either party. Significantly, he testified that the defendant's demeanor that morning was of someone who was guilty of something. I give this unsolicited opinion no weight whatsoever.

[16] When asked if he had been told by the complainant that the defendant had choked her, because this was not something Mr. Jongue told the police, the witness admitted that he had been told this at the time by his mother but had failed to mention it to the police. I believed this account. I did not think for a moment that Mr. Jongue was tailoring his evidence to support his mother's version of events.

[17] The cross-examination also probed whether or not the defendant's admission of a push included the fact that the defendant had to push the complainant off of him. The witness denied that this was ever mentioned. I believe Mr. Jongue was telling the truth on this point as well.

[18] It is also the case, as noted above, that Mr. Jongue's evidence did not entirely support the complainant's version of events. Again, this balance in Fedroy Jongue's evidence enhances my assessment of his overall credibility.

[19] The defendant also testified. Generally, his demeanor was appropriate, respectful, and apparently earnest at all times. As well, the defendant's version of events began in a similar manner as the complainant's up until the point when he awoke her to continue the earlier argument.

[20] The defendant testified that he grabbed the complainant's cell phone because of a curiosity concerning who she may be texting in the early morning hours. Accepting everything the defendant said at face value, for the moment, this curiosity, if that's what it was, certainly got the better of him. He unlawfully kept the complainant's phone and instigated the physical interaction between the parties.

[21] In terms of the mechanics of how things unfolded, suffice it to say I found the defendant to be untruthful in almost every respect of his evidence. Given his size in relation to Ms. Jongue's, I cannot accept his version of events and the description of how he says she came to bite him. It is fanciful and far-fetched. It is implausible. None of what the defendant says about why he was retreating into his bedroom or how things unfolded made sense to me. Moreover, the defendant's description of the push he gave to end Ms. Jongue from biting his hand, was also incredible and inconsistent. It also fails to account for the swelling to the complainant's cheek, and the slight redness on Ms. Jongue's neck which is depicted in the photographs.

[22] In terms of the story about having vigorous make up sex with Ms. Jongue before dropping her off at her home, this version of events seemed fantastic, unlikely, and completely unhelpful to explain the genesis for the marks on Ms. Jongue's knee. It is also curious to me why the complainant was asked whether or not she returned to the defendant's home after the parking lot discussion, but she was not asked anything about the vigorous oral sex and intercourse that caused them both to "collapse in exhaustion."

[23] Not that it matters, but while I agree with counsel for the defendant that Mr. Patterson was not combative during cross-examination, his unwillingness to agree that Ms. Jongue's intention throughout the interaction was simply to retrieve her cell phone, detracted from his overall credibility as well.

[24] I reject the defendant's evidence and his version of events as untrue. The defendant's evidence does not raise a reasonable doubt in my mind about what caused the marks on Ms. Jongue's face, neck, arm, and knee. But again, that is not the end of the matter. Nor, is that positive evidence of anything.

[25] I am left to determine whether on all of the evidence I accept, this charge is proven beyond a reasonable doubt.

[26] Ms. Jongue's evidence was compelling and credible. The photographs are not entirely helpful because as Mr. Jongue testified: "In person – I feel like the camera doesn't quite do it complete justice because the person looks a lot worse than the camera shows, to be honest." Nonetheless, the photographs depict that there was some marking to the complainant's face, neck, knee, and arm.

[27] The complainant testified about how these marks were caused. I believed this evidence and I completely disbelieved the defendant's explanation of the marks, nor did it leave me with any reasonable doubt about what caused these injuries.

Conclusion

[28] I am satisfied beyond a reasonable doubt that David Patterson unjustifiably assaulted Ruth Jongue. He neither had her consent to apply force to her face, neck, arm, and leg, nor was he lawfully defending himself from any unlawful attack on her part. At all times he maintained an unlawful possession of her property and he physically assaulted her without any lawful justification. Sir, I find you guilty as charged.

Released: 13 July 2018

Justice G. Paul Renwick

[1] The Honourable Mr. Justice David M. Paciocco, "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment" (2017) 22 Can. Crim. L. Rev. 31, at p. 72.