Court File and Parties

Ontario Court of Justice

Date: 2018-09-20

Court File No.: Toronto 4817 998 17-75004551

Between:

Her Majesty the Queen

— and —

Rox Roy David Sinclair

Before: Justice H. Borenstein

Heard on: July 18 and September 10, 2018

Reasons for Judgment released on: September 20, 2018

Counsel:

• Mr. Jacob Wilson, counsel for the Crown
• Mr. Chris Hanson, counsel for the accused

BORENSTEIN, J.:

Introduction

[1] Rox Roy Sinclair is charged with two counts of assault and one count of threatening bodily harm. The alleged victim is Desiree Quanchan. Ms. Quanchan is Sinclair's ex-girlfriend and the mother of their child. The child, Anya, was one at the time. She is about to turn two.

[2] Ms. Quanchan had custody of Anya. On the date in question, the accused called her and said he wanted to bring Anya new earrings. Anya was at the day care in Quanchan's building.

[3] The accused came over.

[4] There was an argument that became heated. Quanchan's friend Kassandra came over. That is when the assault allegedly occurred.

[5] I heard from the accused, Ms. Quanchan and Kassandra.

The Complainant

[6] The complainant is studying to become a medical office assistant. She testified that she and the accused went out for two years between 2014 and 2015. She broke up around the time she learned she was pregnant. Their child is about to turn two. They were broken up at the time of the incident before the Court. She had custody, and the accused sees his daughter every week or two. Family court proceedings were pending at the time of trial. The complainant lives in a residence for women and children. There is staff and a day care on site at her residence.

[7] On the afternoon in question, the accused called around noon saying he wanted to drop off earrings as a gift for their daughter. The complainant said their daughter was in day care until 4:30 and he could come then. He wanted to come sooner. He called again when she was at Kassandra's apartment and said he was on his way. He heard male voices in the background. She believed this upset him as the conversation became a little heated. The complainant went to her apartment to await his arrival. She locked her door. He arrived around 3:00 or 3:30. She let him in and they talked. They argued about their daughter. He was upset about other people being in the house when their daughter was home. She tried to avoid the argument by doing laundry or going to the washroom. She went to the kitchen and he followed. She called building staff, telling them she wanted them to get him out of her apartment, but they did not arrive before events unfolded. She hung up the phone and called the accused goofy, which got him heated. Kassandra was standing between them. He then grabbed the complainant and choked her. She could not remember whether he used one or both hands, but thought it was his right hand. He applied enough force to move her from the kitchen, through the living room and in to the wall of the living room, where he held her for five or six seconds before letting go. She could still breathe and told him to leave. Kassandra got him off her and calmed him down, telling him he needed to go. She thought Kassandra might have come in when she was on the phone with the building staff.

[8] This was the only time he was physical with her.

[9] After the assault, she went to the day care and saw the accused there with their daughter. She was still heated and upset, and thought he might pick her daughter up so she took their child. She emphasized that she was not saying he would have taken their daughter.

[10] She returned to her apartment. She was crying. Staff were already there. They said they had called the police. She did not call the police.

[11] She was asked by the Crown if she thought the push was accidental, and replied that she did not think he meant to do it. She has said so many hurtful things to him and thinks she just said the wrong thing and it set him off. She said that "obviously" he meant to do it; she did not think he was in his right mind to recognize the consequences of what he was doing. She thought he just got really angry at the time.

[12] His hand around her neck was painful when it happened, but not after he released her. She had no injuries.

[13] In June 2018 family court proceeding, they were talking about their daughter and he said he was sorry. She knew he was referring to the assault because that was the only time he ever did anything to her. She said she was over it.

[14] In cross-examination, she testified that their phone conversation was a little heated and she locked her door before he arrived so that she could meet him at the door and assess how angry he was. She was asked why she let him in her apartment and replied that they have argued a million times; he is the father of their child and she did not think this would happen.

[15] She was cross-examined on her police statement where she said he picked her up by the throat.

[16] She agreed with her statement, and said she was picked up off the ground and the two went about ten feet to the wall. Her feet were off the ground as he held her by the neck.

[17] Kassandra was there at the time.

[18] She testified that the accused told her he was stabbed in the heart in August 2014. She believed his injuries affected his breathing. When asked, she said she guesses it hurts when he lifts weights or works out.

[19] It was suggested to her that if the accused was convicted, it would fast track her application for housing. She replied that she does not want to move into housing. She prefers her current housing. She pays $200 a month rent.

[20] When asked, she elaborated on the events before the alleged assault. The accused was asking her who the male was he heard on the phone. She told him to come to Kassandra's and she will introduce him to the male. They did, and then returned to her apartment where the argument continued.

[21] In re-examination, she testified that the accused told her he goes to the gym and does weights. He did not tell her how much he lifts but he is able to pick her up when they were playful or in bed. She knows he has pain when she sat or put pressure on his chest.

Kassandra Weight

[22] Ms. Kassandra Weight lives next door to the complainant. They feel as close as sisters.

[23] She said it was hard to remember the events.

[24] She remembers entering the complainant's apartment. There was a heated argument going on between the complainant and the accused. Everything happened very quickly. She saw the accused forcefully lunge forward, with his two hands extended, toward the complainant. The complainant was yelling at him to get out. Kassandra was largely behind the accused. She grabbed him by the bicep, turned him around, and told him he had to leave, and ushered him out of the apartment. The complainant was distraught, and did not talk about what had just happened. Kassandra then went to the day care in the building.

[25] When asked if the accused touched the complainant, she replied she was "pretty sure" he made contact or touched her neck or collar bone. She did not want to describe what happened as an attack, saying that was "out of context". She did not recall the complainant hitting the wall, and did not remember if the accused moved his feet when he lunged. She testified that she did not really remember the situation.

The Accused

[26] Earlier in the day, he called the complainant to tell her he was buying earrings for their daughter. He then called to say he was on his way. He heard numerous people in the background, and the complainant said she was at Kassandra's. The accused went to Kassandra's apartment. There were men there. He and the complainant then went to her apartment. They had a heated argument over her having people over with his daughter. The argument was the most heated they ever had. Kassandra came in. He then said, "Ok, I'm leaving." and walked out with Kassandra behind him. He did not assault the complainant. He went to the day care and saw his daughter. The complainant arrived telling everyone not to let the accused take his daughter, and that she had called the police. The accused went into the manager's office for about 20 minutes knowing the police were coming. The manager eventually told him to go home. He did.

[27] He later testified that during the heated argument, the complainant called security saying he was assaulting her and wanting them to remove him, at which point he left. Kassandra was holding his arm as he left, hoping to cool him down. He stated that the complainant likes to push his buttons.

[28] He then testified that he was calm during their "heated" argument. He denied that he needed to be cooled down.

[29] He then denied stating earlier that the complainant called the police saying he was assaulting her. She just called them wanting him to leave. He testified that Kassandra came in after that call.

[30] He testified that he was not upset when the complainant called him goofy. That term has one meaning in prison but can have different meanings in different contexts. She has done worse things to him, and the comment did not upset him. Nor was he upset about the male in the background during the phone call, as they had broken up and moved on. However, he feels he has a right to say who can be in the house when his daughter is there. Whatever one thinks of that attitude, I note his daughter was not present during the phone call. She was at day care.

[31] He admitted apologizing to the complainant at a family court proceeding, but said he was referring to the fact that they could not make the co-parenting arrangement work. The complainant replied that it was okay, she forgave him long ago.

[32] He testified that he was stabbed in August 2014, and had open heart surgery. He was implying that he could not have lifted her by the throat, as she described. He does work cleaning up demolition sites, but testified that he just drives others to the sites. He does not lift anything. He does go to the gym but only does cardio, not weights. Later, he conceded that he could have picked her up but it would have caused him some pain.

[33] That was the evidence.

Analysis and Findings

[34] At the conclusion of the case, the Crown sought leave to withdraw the threatening count and one count of assault. What remains is the one assault charge.

[35] The onus is on the Crown to call credible and reliable evidence to prove guilt beyond a reasonable doubt. It is not a situation where the more likely version prevails. The accused need not be believed or prove his innocence. If there is a reasonable doubt about whether the accused committed an assault, any assault, he will be not guilty.

[36] I will begin with my ultimate finding and then give my reasons.

[37] I reject the accused's evidence that he did not assault the complainant. I am persuaded beyond a reasonable doubt that he assaulted her that day. I do not know the extent of the assault. I cannot find he assaulted her as severely as the complainant alleges, but I do accept that, on that day, a loving father and a man who has never assaulted the complainant before, lost his temper and lunged at her in anger. That alone, without even touching her, would amount to an assault. But I find he did touch her.

[38] As for my reasons, I reject his material evidence that he did not assault her and it does not leave me with any doubt.

[39] He gave contradictory evidence on important matters. They were having a heated argument to be sure. At first, he testified that he said, "Ok, I'm leaving" and left without prompting. Then he said the complainant called building staff saying he was assaulting her and wanted him out, and that Kassandra held his arm and walked him out to cool him down. Then he testified that he was calm during their "heated" argument. This is after testifying that this was the most heated argument they ever had.

[40] Then, he denied stating earlier that the complainant called the police saying he was assaulting her. She just called them wanting him to leave. I do not know if she told the staff in that call that she was being assaulted or not. I do note the staff called the police. I note she did not give that evidence, but he did and then denied giving that evidence.

[41] He was materially contradictory on the events that led him to leave. That alone is enough to cause me to reject his evidence in the context of this case. There were other aspects of his evidence that were somewhat concerning, such as the fact he tried to imply he could not have picked her up as she alleged, even if he wanted to. He is a much bigger person. I am aware of his surgery. He eventually admitted he could have lifted her but it would have been painful.

[42] Likewise, the apology. She left him. He apologized to her and she said it was okay, she forgave him long ago. It makes much more sense that he was apologizing for assaulting her, and not for being unable to make co-parenting work, especially given her response. But the reason for the apology was never articulated and, while it is more likely that it was for the assault, it remains somewhat speculative, and I will not speculate about what would, in effect, be his confession.

[43] The fact that he waited in the manager's office does not demonstrate consciousness of innocence. His name was known to all. Leaving may have made matters look even worse. And he did leave after 20 minutes. I draw no negative inference from him leaving, but nor do I draw a favourable inference from him remaining for a period of time.

[44] I reject his evidence.

[45] Of course rejection of his evidence beyond a reasonable doubt does not translate to proof of the offence.

[46] I also think the complainant possibly or even likely exaggerated the extent of the assault when she spoke about her feet being clear off the floor for ten feet. I otherwise found her credible and very natural. She seemed to have no axe to grind with the accused. She volunteered that he never hit her before. She believed she has said many nasty things to him and this time, she said the wrong thing at the wrong time. She was careful not to imply that he would have taken their daughter from the day care. Her response to the apology that it was okay, she forgave him (for whatever it was) long ago. Her evidence about whether it was intentional or accidental. As well as the fact that she never called the police. These answers all came naturally and were kind toward the accused, and enhanced her credibility. The motive of public housing was rejected by her, and I accept that as well.

[47] So while she may be telling the truth about the extent of the assault, I am concerned there is an exaggeration. While she and Kassandra are close, I found Kassandra did not really want to get involved in this case, saying she could not really remember. She gave evidence of the lunge which, as I said, in the context of that argument, would itself be an assault. She reluctantly said she thought he touched her neck or collar bone. I accept he did. She could not remember if his feet moved or if they travelled.

[48] In the end, I found the complainant and Ms. Weight credible and reliable with respect to the lunge and some contact. Given what was occurring, that amounts to an assault.

[49] To conclude, I find that Rox Roy Sinclair lost his temper momentarily, during a heated argument that day, and committed an assault.

Released: September 20, 2018

Signed: "Justice H. Borenstein"