Court File and Parties

Court File No.: Sudbury Information # 1935-17

Date: 2018-12-12

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Andrew Kokko

Before: Justice A.L. Guay

Heard on: June 19, June 21 and September 12, 2018

Reasons for Judgment released on: December 12, 2018

Counsel:

Kaely Whillans — counsel for the Crown

Michael Venturi — for the defendant Andrew Kokko

Guay J.:

Issues

[1] The events which are the subject of the present charges occurred on May 30, 2017. As a result of these events, the accused was charged with assault causing bodily harm, threatening and breach of probation. He pleaded not guilty to these charges. Both the accused and the complainant testified as did a third party, Michael Brownlee, the person who was asked to bring the complainant home at the end of the day on which the events took place.

[2] On June 1, 2017, two days after she was allegedly assaulted by the accused, the complainant, J.F., called the police to complain about injuries she had received at his hands. Essentially, these injuries consisted of bruising to a number of areas of her body, including her right breast, neck, shoulders, stomach, right elbow, ankles and left foot. These injuries, she alleged, had been inflicted on her by the accused on May 30, 2017 between the hours of 8:00 a.m. and 8:00 p.m. During this time, both the accused and the complainant consumed alcohol although, from the evidence, it appeared that the complainant consumed a lot more alcohol than did the accused. It was evident from the video evidence presented at trial that she was a lot more intoxicated than he was. Their inability to recall many of the events of May 30, 2017 was evident when they testified.

[3] While it initially appeared that the accused had inflicted these bruises on the complainant in anger, his culpability would be put into doubt by the evidence introduced at trial. The issue at hand was to determine in what circumstances these injuries to the complainant occurred and whether the surrounding circumstances put into question the criminal liability of the accused. By way of a defence, the accused alleged that the injuries to the complainant had been caused when he attempted to prevent the complainant from hurting herself and when it became necessary for him to defend himself against her aggressive conduct. An underlying concern here too was the complainant's motive for bringing a complaint against the accused to the police. There was some evidence suggesting that she had done so to even the score against the accused for his previous treatment of her.

Context

[4] The parties both acknowledged that they suffered from alcoholism. They met each other at Holmwood Institute in Guelph in November 2014 while taking alcohol abuse treatment there. A couple of months later, they had returned to the Greater Sudbury area and taken up residence with each other there.

[5] By the time the present events occurred, the parties had separated from each other. Both of them had resumed drinking, the complainant appearing to be in far less control of her drinking than was the accused. In her evidence, the complainant disclosed that her drinking problem went back to when she was 10 years of age. There was alcohol abuse on the part of her grandmother and an aunt, both of whom died from it. The complainant testified that her alcoholism took the form of binge drinking lasting 3 or 4 days, with each binge session followed by a period of calm lasting approximately a month. She admitted that her drinking led her to be "not the nicest person", that it destroyed her relationships and that she drank "to try and cope with my health, my mental health".

[6] As noted, the accused appeared to have more control of his alcohol consumption. He testified that he was employed as a local fireman and maintained a residence in the Markstay area of the region. He also testified that he did not drink and drive. This fact, combined with his legal prohibition against communicating with the complainant, would be a major factor in explaining how the events which gave rise to the present charges lasted for a twelve-hour period on May 30, 2017. In giving his evidence, the accused would describe his level of impairment on the day in question as "mild". While there was some corroboration of this claim in the evidence of Michael Brownlee, it is safe to conclude that the accused was intoxicated even if not to the same degree as the complainant.

[7] While the intoxicated state of each party made it very difficult to determine exactly the scenario of the events which occurred in the accused's home on May 30, 2017, I found the timelines provided by the accused made more sense and fit better with the whole of the evidence than those provided by the complainant. It was clear from her evidence that the complainant was able to recall only some aspects of what occurred on the day in question. The accused had consumed far less alcohol and therefore had a better grasp of the events and the sequence of time in which they occurred. Having for many years dealt with people who seriously abuse alcohol, I am not unaware of the tolerance to alcohol such persons develop and how they are able, to a certain extent, to control their behaviour and retain a certain memory of events occurring in their lives. This said, I am likewise aware of the effect of excessive consumption of alcohol on memory, even when the person who is alcoholic has developed a high tolerance for alcohol. In weighing the evidence in this matter, I have also taken into account the fact that persons with a high alcohol tolerance may be more impaired than they appear.

[8] The accused testified how, after waking up at his place of work at 7:00 a.m. on May 30, 2017, he bantered for a while with his colleagues. Around 8:00 a.m., he left work and proceeded to do various chores, including stopping by his parent's home for a short visit. According to the accused, it took him about an hour and a half to complete the chores he had set out to do. As previously agreed with the complainant, he then attended at her residence to bring her back to his place around 9:30 a.m. At the time, the accused was bound by an 18 month probation order directing him to have no contact or communication with the complainant.

[9] Both parties agreed that the complainant had been drinking before the accused arrived. The accused testified that he found the complainant asleep but intoxicated when he entered her apartment. She agreed with him on this point. The complainant testified that prior to the accused's arrival, she had consumed a "twixer" (26 ounces) of vodka with her friend. No friend was present in her apartment when the accused came to pick her up.

[10] The parties arrived at the accused's place somewhere around 10:00 a.m. Soon after, and as mutually agreed, the accused drove to the L.C.B.O. in the nearby Town of Hammer to purchase alcohol for them. The accused testified that he purchased a 40 ounce bottle of vodka for the complainant while purchasing a 26 ounce bottle of Crown Royal whiskey for himself. Notwithstanding the accused's evidence, other evidence suggested that he had purchased a 40 ounce bottle of Crown Royal for himself. What is puzzling, given the history of their relationship, is why the accused would buy so much alcohol for the complainant in the full knowledge that she was already intoxicated when he picked her up that morning. One can reasonably infer from the evidence that they had consumed alcohol together before and that the result of such consumption had not always been agreeable.

The First Episode

[11] Notwithstanding all of this, the period between 11:00 a.m. and 2:00 p.m. seems to have passed without much discord. The parties watched television, drank the alcohol the accused had purchased and had lunch. According to the complainant, the accused became angry with her because she was drunk. I cannot accept her evidence on this key point in light of her evidence and that of the accused that she was already intoxicated when he picked her up earlier that day.

[12] The accused testified that it was the complainant who became angry with him and insisted on leaving his residence in a very intoxicated state. Concerned for her well-being if she left his residence on foot and intoxicated in the rural area where he lived, the accused decided to prevent her from leaving. I do not find that this was unreasonable under the circumstances. The evidence suggests, rather, that had he been able to drive her home when she wanted to leave or had either of them had money to call a cab or a third party been willing to come and get her, the accused would have been glad to see her leave. According to the accused, he restrained her as reasonably as he could and in the way he had been professionally trained.

[13] In the struggle which ensued, both the accused and the complainant were bruised. It was never made clear just where or how the bruises on the complainant had occurred or when she had bitten the accused on his forearm and cut his forehead.

[14] The complainant referred to the accused's initial attempt to stop her from leaving his residence as his first assault against her. The evidence suggests, however, that in the process of being passively restrained by the accused until she had calmed down, the complainant struggled and was highly irrational. I reject her evidence that she was kicked or punched in the stomach by the accused. I also reject her evidence that the accused punched her in the face, stood on her shoulders or stood with his full weight on her back when trying to restrain her. How she received the most serious bruise, the one to her right elbow, is unclear. The conduct of the accused towards the complainant, shown in the video (see exhibit 7) introduced in evidence by the accused, did not appear to involve intentional acts of aggression against the complainant. If we consider what the complainant herself acknowledged about what she could be like when intoxicated, her behaviour as depicted in this video provides a good description of just how aggressive her conduct could become when she was in a highly intoxicated state.

[15] It is difficult to determine at which time during the afternoon of May 30, 2017, each of the complainant's bruises were incurred (see exhibits 4a and 4b). In fact, one cannot be entirely sure that all of these bruises occurred on May 30, 2017. When I reviewed the photographs of the complainant's bruises, I was not left with the impression that they were all of the same age, some appearing older than the others. Estimating the age of bruises is commonly recognized to be more a matter of art than science. This said, it is not unlikely that one or more of the bruises complained of by the complainant had their origin in the events which unfolded at the accused's home during the afternoon and early evening of May 30, 2017. This inference follows from the fact that the accused, who was stronger than the complainant, did himself receive bruises and other injuries (to his forearm and forehead) on that occasion.

[16] While the accused did not introduce photographic evidence of bruises inflicted on him by the complainant, he testified that he became aware of these bruises when he later took a shower. Unfortunately, the police only took photographs of the complainant's bruising. I was therefore not able to compare the extent of the accused's bruising to that incurred by complainant with a view to gaining more insight into whether the contact between the parties was reflective of an actual fight or an assault by one against the other. The accused did, however, file in evidence a photograph of the complainant's bite mark to his left forearm and the cut inflicted by her to his forehead (see exhibit 10).

[17] The complainant testified that at the time of the events, she had recently recovered from a broken left ankle and that, as a result of the residual tenderness of that ankle, she experienced severe pain in her leg during her altercation with the accused. Notwithstanding this pre-existing condition as well as the likelihood that she had used her feet to help force open the door of the accused's residence later in the afternoon of May 30, 2017, she blamed the accused for the injury to her foot. I find that there were no other reported bruises elsewhere on her body consistent with its use to force open the door of the accused's residence. I am then, with any degree of certainty, unable to find that it was the accused who caused injury to the complainant's left foot or her ankles.

[18] In her testimony, the complainant harkened back to an earlier injury to her right breast. The incident related to this injury does not therefore appear to be connected to the incident giving rise to the present charge of assault causing bodily harm. For this reason, I am unable to find that the injury to the complainant's right breast occurred on May 30, 2017.

[19] After reviewing the photographs of the complainant's bruises, I was left in doubt about whether a number of the bruises complained of by the complainant arose out of the events which occurred on May 30, 2017. The worst injury the complainant suffered on that occasion was, in my opinion, the injury to her right knee; it was seriously bruised and the bruising looked fairly recent. I doubt that this injury could have resulted from the takedown in the kitchen, given how that episode was described in the accused's evidence. I accept the accused's evidence here. I cannot accept the complainant's version indicating that the accused "slammed" her down on the kitchen floor after "taking out" her ankles in order to gain control of her. The complainant had also used the word "slammed" to describe the force with which the accused had pushed her head against the kitchen wall on the same occasion. I find that the complainant's use of the word "slammed" was hyperbole on her part and that the event she described is unlikely to have occurred as she recalled. If the accused had not cared about her, he would probably have let her go out of the door of his residence unimpeded in a highly intoxicated state. I do accept, though, that in the intoxicated state she was in, the complainant may later have come to believe the events of May 30, 2017 unfolded in the way she alleged to the police, believing the accused's actions towards her to have been hostile and inconsistent with her best interests.

The Threatening Allegation

[20] The complainant alleged that during the accused's initial assault on her, and after he had pinned her down, he threatened her with being shot by a man he knew connected to the Hell's Angels. There was no evidence to substantiate this allegation of threat. Nothing in the evidence suggested that the accused had a running or even tenuous tie with that criminal organization. Given the complainant's level of intoxication, her highly emotional state throughout this episode and her subsequent angry and vengeful attitude towards the accused, I have difficulty accepting her allegation of threat by the accused. I cannot find beyond a reasonable doubt that he made this threat to hurt her or have her harmed by someone who is a member of a criminal organization. No one heard this threat if indeed it was made. More importantly, the accused seemed quite able of controlling the complainant's aggressive behaviour towards him using skills he had previously been taught without making such a threat to her.

The Second Episode

[21] As far as could be ascertained, the first of two restraint episodes was followed by a period during which the complainant was subdued and fell asleep on the living room floor. There was photographic corroboration that the complainant had done so, the accused having placed a pillow under her head and covered her with a blanket. I reject the contention that video evidence introduced by the accused was staged by him to make the complainant look bad, seeing it rather as an attempt on his part to protect himself against future accusations by the complainant.

[22] During the course of the day, the accused made a number of calls (about 4 or so) to Michael Brownlee. Michael Brownlee was one of the complainant's fellow students at a local community college. I find that it was Michael Brownlee whom the complainant asked the accused to call to come and bring her home. Having asked the accused to call him, the complainant subsequently became angry with him for doing so; she believed that he was being critical of her. While it is not exactly clear when the calls and texts were made by the accused to Michael Brownlee in an attempt to get him to come and get the complainant, the evidence suggests that they started at some time between 2:00 p.m. and 3:00 p.m. around the time of the first incident. While the evidence suggested that it was the issue of money to pay for gasoline which prevented Michael Brownlee from coming to get the complainant earlier in the day on May 30, 2017, it appeared from his evidence that it was more a matter of reluctance on his part to become involved in an emotional conflict between the parties.

[23] According to the accused, the complainant awoke around 5:00 p.m., after sleeping for an hour or so. When she did, he testified, she was not in a good mood. Much as before, it seems, the complainant and the accused continued to drink. While there is evidence that the parties stopped drinking around 4:00 p.m. when they ran out of alcohol, I find that they had not, in fact, run out of alcohol. This was clear from the evidence that the accused had only consumed three-quarters of his bottle of whisky at the time and also from the fact that the complainant carried alcohol with her when she went outside the residence around 7:00 p.m.

[24] After she awakened from her nap on the living room floor in a very angry mood, the accused again felt the need to restrain the complainant, this time in order to protect himself from her violence. On this occasion, the complainant's aggressiveness when highly intoxicated quickly manifested itself, the accused eventually suggesting to the complainant that she take a nap in his bedroom. The complainant accepted the accused's suggestion, falling asleep for an hour or so until about 6:00 p.m. or 6:30 p.m.

[25] When the complainant awoke from her sleep this time, the accused heard noises coming from his bedroom. He would soon learn that the complainant was then in the process of trashing it before coming downstairs to meet him. She was clearly not provoked by the accused into trashing his bedroom. I estimate this rampage to have occurred at some time around 6:30 p.m. Photographs of the damage to the accused's bedroom caused by the complainant were filed in evidence. (see exhibits 9a & 9b) During this time, the accused continued trying to persuade Michael Brownlee to come and pick the complainant up. After the fourth telephone call, Michael Brownlee agreed to come and get the complainant, arriving at the accused's residence around 8:00 p.m. There, he testified, he found both parties surprisingly calm.

The Complainant's Later Conduct

[26] After the complainant had trashed the accused's bedroom, she came downstairs not wearing any pants. She had peed the bed and removed all of her pants. Upset with the accused, she exited the residence with nothing on but her hooded sweat shirt; she was carrying what remained of her bottle of vodka. She admitted doing this, insisting that it was not a 40 ounce bottle she brought outside with her, but rather a 26 ounce bottle. Once the complainant left the residence, the accused locked the door to his residence and went upstairs to monitor her behaviour from a bedroom window. Angered by this, the complainant forced her way back into the residence, using only her body to do so.

The Defence of Self-Defence

[27] In pleading not guilty to the offences with which he is charged, the accused raised the defence of self-defence. It was unclear whether this plea was with respect to all of his actions towards the complainant or whether it related to a specific set of events occurring during the course of the day on May 30, 2017. Given what I have determined with respect to the first episode of events occurring between the parties, I do not think that a claim of self-defence applies in those circumstances. Clearly there was some restraint on the part of the accused but it was definitely not for the purpose of assaulting her.

[28] The events surrounding the second episode of May 30, 2017 may be seen differently than I have described, even though the primary aim was fending off the complainant's anticipated or real aggression towards himself. It was, I believe, these events which were recorded on the DVD filed by the accused in evidence.

[29] As made clear by the Supreme Court of Canada in R. v. Cinous, ([2002] S.C.R. 3; 2002 SCC 29, 162 C.C.C.(3d)129), in cases where the defence of self-defence is raised, the trial judge must first determine whether there is an "air of reality" to such a defence. To determine this, the Court spoke of the need for the trial judge in such cases to keep from a jury defences lacking an evidential foundation. The judge must find that there is sufficient evidence (a matter of law; see para. 71) available from the accused or elsewhere in the case which, if believed by him or her, could lead to an acquittal (see para. 60).

[30] The air of reality test does not require or impose a "high burden" of proof on the accused but rather a low burden. Once determined, the Crown must then successfully impugn one of the three pre-conditions of the defence on a "beyond all reasonable doubt" basis. (see R. v. Elliott (Brampton Court File No. 13-12927; 2016 CarswellOnt 9715; [2016] O.J. No. 3227)) See also the Binepal case (below) which addresses this issue.

[31] In R. v. Binepal, ([2016] O.J. No. 5270 Ont. C.J.), the court held that the Crown could negate the defence of self-defence by proving beyond a reasonable doubt that one or more of the preconditions set out in s. 34(1) of the Code does not apply. These preconditions are as follows:

1. Did the accused believe on reasonable grounds that force or a threat of force was being used against him?
2. Was the act that constitutes the offence committed for the purpose of defending or protecting the accused from the use or threat of force?
3. Was the act committed reasonable in the circumstances?

[32] In determining the issue of the "reasonableness" of the accused's behaviour towards the complainant, the court (see Binepal) held that it was necessary to consider the factors set out in s. 34(2) of the Code, a number of which were:

…the nature of the force or threat; the extent to which the use of force was imminent; whether there were other means available to respond to the use of force; the size, age, gender and physical capabilities of the parties to the incident; the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; and the nature and proportionality of the person's response to the use or threat of force.

[33] Because of the difficulty of establishing the time when each of the parties was bruised or wounded and determining which bruises or wounds were incurred on May 30, 2017, the analysis engendered by the criteria in s. 34 must be a broad one. The injuries incurred by the accused certainly indicate that, notwithstanding his larger size, he was justified in believing that he was at risk from the complainant's aggressive behaviour while she was in a highly intoxicated state. I find that the act or acts which the Crown argues were aggressive acts on the part of the accused "were committed for the purpose of defending or protecting himself from the use or threat of force" by the complainant. The accused's actions, I find, were reasonable in the circumstances. I have reached this conclusion by considering the evidence in light of the criteria set out in s. 34(2) of the Code. When highly intoxicated, the complainant was fully capable of causing serious damage to the accused's residence and hurting him physically. One only has to look at the photographs of the destruction wrought by the complainant to his bedroom to understand this.

[34] The use of force by the complainant was imminent after she had become highly intoxicated around 2:00 p.m. on the day in question. When the complainant went outside the accused's residence after trashing his bedroom later that afternoon, he quickly locked her out. I do not believe he would have done so had he not been afraid of what further harm or damage the complainant could cause. While she was smaller in size than him, her aggressive disposition when highly intoxicated could more than make up for their difference in strength. Fuelled by her excessive consumption of alcohol, I believe that her resulting strength belied any weakness on her part in relation to the accused. Taking into consideration what I have concluded with respect to the difficulty of restraining the complainant's violent, physical outbursts, I do not find that the force used by the accused against the complainant during the events of May 30, 2017 was disproportionate in nature to the aggression displayed by her on the occasion in question.

Evidence of Michael Brownlee

[35] According to Michael Brownlee, the only complaint made to him by the complainant while he was driving her home was that her foot had been injured. This was her left foot as it turned out. It should be recalled that both of the complainant's ankles were allegedly bruised in the events of May 30, 2017. Absent another explanation, it is reasonable to infer that these injuries must have occurred when the complainant used her body to force open the door to the accused's residence after he had locked her out. The complainant offered no other evidence to establish how these bruises to her ankles occurred. While the complainant alleged that it was the accused who had caused injury to her foot, by stomping on it, Michael Brownlee gave it as his opinion that the small cut to her foot had likely come from broken glass strewn on the floors of the accused's residence.

[36] Michael Brownlee recounted how he felt the complainant seemed to want to convince him that she had been the victim of the accused's abuse not only on May 30, 2017 but also previously. He testified that she told him that he did not have to answer any questions put to him by the police. Michael Brownlee eventually saw her as manipulative and became estranged from her when the balance of the school year continued after May 30, 2017. The impression he had was that she wanted the accused to pay for what he had done to her on more than the occasion in question.

[37] Following one or more telephone conversations with the accused, during which he could hear the complainant screaming, Michael Brownlee had sensed something was wrong. He thought the police ought to have been called to intervene in the situation. This was, of course, something both parties wanted to avoid doing under the circumstances, given the existing no-contact orders. All he wanted, Michael Brownlee stated, was to tell to the court that he had been asked to come and get the complainant at the accused's residence and had agreed to do so. He testified that he had avoided taking sides in any conflict between the complainant and the accused, not wanting to be dragged into it. This was despite the fact that he knew the complainant much better than the accused.

Credibility

[38] I was not impressed by the complainant's testimony and by her attempt to portray herself as "a fly on the wall" and as a person who acted reasonably during the events occurring at the accused's residence on May 30, 2017. She presented her evidence in the context of her alleged post-traumatic stress disorder and flashbacks. Maintaining that because she was suffering from PTSD, which, incidentally, she did not establish, she maintained that she could only remember major events which had occurred in her life and, in particular, those occurring during the afternoon and early evening of May 30, 2017. Even when excused by defence counsel for her lack of memory with respect to the actual times during which her injuries occurred, she was still unable to recall the sequence of the events allegedly giving rise to them. I find that the complainant's recollection of the events of that day was very poor because of her high level of intoxication. Even with the tolerance to alcohol she had undoubtedly built up, I find that the complainant was too intoxicated to appreciate either her own behaviour or that of the accused during the events of May 30, 2017 or to remember with any degree of certainty details of what happened during the twelve hours or so she spent at the accused's home on that day.

[39] On a number of points, important points for her credibility, the complainant did not give the same evidence and information to the police and the Crown that she gave at trial. One example of this was the allegation that the accused had, during what she termed the first assault, slammed her head against the wall. Given the accused's strength, I conclude that if such an event occurred as she described it, the complainant would likely have been concussed or rendered unconscious. Her evidence about having been concussed was poor and was simply not credible. Had she been rendered unconscious, she would likely have complained of a massive headache to the person who drove her home and to the police; she did neither. Photographic evidence of her head would have revealed some bruising or swelling; it did not.

[40] The complainant did not provide the same information to the police and to the court with respect to a bruise to her stomach. She ascribed this bruise to the accused striking her there after she told him that she might be pregnant. For someone allegedly focused on specific acts of trauma, her confusion about whether the accused had kicked or punched her in the stomach is troublesome. So too was her evidence about the accused having taken her ankles out from under her when he got her to the ground and "slammed" her down on the kitchen floor. This she did not tell this to the police.

[41] When confronted with her failure to tell the police and the Crown prior to trial that she had trashed the accused's bedroom, her reply was that they had not asked her about this. The true reason, it is reasonable to infer, was that this would have cast her behaviour in a very different light. It would certainly have laid to rest the "little fly on the wall" acting "as a reasonable person" image she wished to portray to the police and to the court.

Conclusion

[42] What went on at the residence of the accused on May 30, 2017, shows what can happen when addictions are not satisfactorily resolved. The events in question would probably never have happened had the accused respected the terms of his probation order and, in particular, the condition that he not communicate or associate with the complainant. To compound this, and knowing that the complainant was already intoxicated when he went to her home to pick her up on the morning of May 30, 2017, he purchased a considerable amount of alcohol for them to drink that day. The amount of alcohol purchased by the accused was intended for serious drinking. This was likely the kind of behaviour in which they had mutually engaged in the past; it would have similar consequences.

[43] I sensed in the testimony of the complainant rage against the accused for the manner in which she had been treated by him not only on the occasion in question but also in the past. The events of May 30, 2017, were only possible because of her alcoholism, a disease she has not yet successfully dealt with. Added to her isolation and her need for companionship, it provided a toxic mix. The complainant has little if any support in the Sudbury area where she has lived for 3 years. When on May 30, 2017, she wanted to extricate herself from a situation where she felt unwell, only one person, Michael Brownlee, reluctantly agreed to help her do so. Both parties got more grief than they expected during the events which occurred on May 30, 2017. Certainly, those events must have left them with a sense of disgust and disillusionment.

[44] I find that the drinking session which occurred on May 30, 2017 left the complainant with a feeling of deep anger. What often follows anger and resentment is a desire for revenge. I cannot help but conclude that there was a very strong motive of revenge underlying the complainant's accusations against the accused. Having heard the testimony of Michael Brownlee on this point I sensed that the complainant wished to settle the present and past scores in her relationship with the accused, the possibility of resurrecting that relationship gone.

[45] In reviewing the evidence, I concluded that notwithstanding her anguish and her sincere belief that it was the accused who had traumatized her, she did not remember enough of what happened to seriously challenge his version of events. The extent of the complainant's intoxication on May 30, 2017 made it virtually impossible for her to have even a reasonable memory of what happened in the accused's residence on that occasion. While she suffered some pain and bruising in the course of the events which unfolded that day, so did the accused. Under all of the circumstances, I do not believe that such contact as took place between the parties could be proven to constitute the criminal behaviour on the accused's part as alleged by the Crown.

[46] This case, if nothing else, shows the destructive effect alcohol can have on the lives of two people who at one time cared for each other. They must both still deal with this disease which afflicts them or face a future which inevitably brings them to personal failure and criminal liability. The accused has his issues but the complainant would err in nurturing the idea that he is the cause of her unhappiness and anguish. Given the evidence, I cannot conclude that this was a case of assault on the part of the accused. In light of the complainant's tendency to violence when highly intoxicated, I find that the accused was justified in attempting to restrain her initially in order to protect her from harming herself and then in doing so later in the day when attempting to calm her down so that she did not engage in further aggressive behaviour towards him. Restraining someone who is highly intoxicated and consequently violent can involve the application of force. Such force, when proportionate to the situation, reasonably exercised and for legitimate purposes, does not constitute assault. In my respectful view, this case was not a case of assault.

[47] Should I be wrong about the nature of the force employed by the accused to restrain the complainant on the occasions in question, I find that when the accused applied force to restrain her and to protect himself, he initially believed the complainant was capable and very likely to harm herself and later that she was going to harm him more than she had already done so. To be sure, neither of the two episodes which took place during the early and late afternoon of May 30, 2017 were inevitable or wholly predictable. The accused did his best to deal with an evolving and barely manageable situation attempting early on to get one of her friends to come and get her and bring her home. I further find that the accused's use of force was not aggressive and that it was directed at preventing the complainant from harming herself or subjecting himself to bodily harm. I find that the force he applied to restrain her was both reasonable and proportionate in the circumstances. Contrary to the photographic evidence which at first glance suggested the abusive use of force by the accused against the complainant, I find the accused did not apply excessive force to the complainant. In the highly intoxicated condition in which she found herself, it is not surprising that the complainant incurred what bruising she did or that the accused himself suffered property damage and personal injury at her hands.

Findings

[48] Given that at the time of these events the accused was bound by a valid probation order prohibiting him from communicating with the complainant (see exhibit 2), I find him guilty of a breach of that probation order. On the basis of the same evidence, I find the accused not guilty of assault causing bodily harm and not guilty of uttering a threat to cause death to the complainant.

Dated at Sudbury this 12th day of December 2018.

Justice A.L. Guay, Ontario Court of Justice