Court File and Parties
Date: August 7, 2018
Court File No.: 17-1479
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Kevin James Allan
Before: Justice Michael G. March
Heard on: August 1 and 2, 2018
Reasons for Judgment released on: August 7, 2018
Counsel:
Caitlyn Downing, Counsel for the Crown
Kathleen Kealey, Counsel for the Accused
Judgment
MARCH, M.G., J.:
Introduction
[1] The accused, Kevin James Allan ("Allan"), stands charged that on or about November 10, 2017, he did commit mischief by wilfully damaging an exterior door of Anna Romanov ("Romanov") contrary to section 430(4) of the Criminal Code of Canada ("the Code").
[2] Allan is Romanov's former husband. The divorced couple share custody of three children, aged 13, 11 and 10. On the evening in question, Allan attended at Romanov's residence to collect the kids for a weekend access visit. They reside primarily with Romanov.
[3] Allan arrived early. Romanov was not pleased about the lack of notice he gave. She told him to come back at the appointed time – an hour and a half later. He refused. He either knocked or banged on the door repeatedly seeking to have the children turned over to him at once. The next day damage to Romanov's exterior door was discovered.
Issues
[4] The evidence adduced over the course of a two day trial raises the following root issue:
- Has the Crown proven beyond a reasonable doubt that Allan wilfully damaged Romanov's door?
[5] Allan chose to testify at his trial. Accordingly, a W.D. analysis must be applied to the admissible evidence adduced.
Law
[6] In R. v. Snook [2014] N.J. No. 43, Gorman J. provided a helpful review of criminal law first principles at paragraphs 11-16 as follows:
11 Any person charged with a criminal offence is presumed to be innocent until the Crown has proven beyond a reasonable doubt that she or he committed the offence with which that person is charged. The onus of proof, as regards proving guilt, never switches from the Crown to the accused. In deciding whether the Crown has proved its case to the criminal standard in this case, I must consider the whole of the evidence and I may only convict if I am satisfied, that the Crown has established the accused's guilt beyond a reasonable doubt (see R. v. Prokofiew, 2012 SCC 49 and R. v. Phelan, 2013 NLCA 33).
12 In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada indicated that proof beyond a reasonable doubt "does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt." In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, however, the Court pointed out that the burden of proof placed upon the Crown lies "much closer to absolute certainty than to a balance of probabilities." In R. v. J.M.H., 2011 SCC 45, it was pointed out that "a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt." Similarly, in R. v. Ahmed, 2013 ONCA 473, it was noted that "in some circumstances the absence of evidence can give rise to reasonable doubt."
13 When an accused person testifies, a trial judge must assess his or her evidence applying the reasonable doubt standard. The judgment of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, supports the adopting of an approach to the assessment of an accused person's credibility by using a three step analysis. Those steps are as follows:
(1) in the first step, the trial judge should ask him or herself whether she or he believes the testimony provided by the accused. If so, an acquittal must be entered. If not, then
(2) the second step requires a consideration by the trial judge as to whether the accused person's evidence causes her or him to have a reasonable doubt concerning the accused person's guilt. If so, an acquittal must be entered. However, if the answer to the first and second questions is no, then
(3) the final step in the analytical process developed in W.(D.) requires the trial judge to consider the totality of the evidence presented to determine if the accused's guilt has been proven by the Crown beyond a reasonable doubt.
14 In R. v. D.T., 2014 ONCA 44, the Court of Appeal, at paragraph 65, indicated that "simply setting out the W.(D.) formula is not determinative. The critical issue is whether the reasons reveal a correct application of the burden of proof."
15 In R. v. Wilson, 2013 NBCA 38, at paragraph 29, the New Brunswick Court of Appeal indicated that "where the prosecution is effectively grounded solely on the testimony of a complainant, and the defence on the diametrically opposed testimony of the accused: 'the accused did it' versus 'no I did not' ... The evident danger in these cases is to forget the burden of proof and determine the case on the basis of which of the two one believes, or, conversely, on which of the two one does not believe."
16 In R. v. Van (2009), 2009 SCC 22, 65 C.R. (6th) 193, the Supreme Court of Canada pointed out at paragraph 23, that the "purpose of the W.(D.) instruction is to ensure that the jury know how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, and that they do not have to accept the defence evidence in full in order to acquit."
[7] Further at paragraphs 19-20, Gorman J. identified the elements to the offence of mischief:
19 Section 430(1)(a) of the Criminal Code defines the offence of mischief (damage to property) in the following manner:
Every one commits mischief who wilfully
(a) destroys or damages property.
20 It has been held that the requisite mental element for the offence of mischief "requires proof of no more than an intentional or reckless causing of the actus reus" (see R. v. Toma (2000), 2000 BCCA 494, 147 C.C.C. (3d) 252 (B.C.C.A.), at paragraph 7). The actus reus element of the offence of mischief has been defined as being complete "when one damages property" (see R. v. K.R.T. (2005), 2005 MBCA 78, 199 C.C.C. (3d) 551 (Man. C.A.), at paragraph 17).
Review of the Evidence
Constable Peace
[8] Cst. Peace attended at Romanov's residence at 139 Bennett Boulevard, Renfrew at 6:24 p.m. on November 10, 2017. He understood that he was being dispatched to a domestic dispute.
[9] Upon his arrival, he met Allan in the driveway. Cst. Peace characterized Allan as polite and co-operative. He understood from speaking with Allan that this divorced couple, Allan and Romanov, were in the midst of an argument over the pick-up time for their children.
[10] Having spoken to Romanov and her friend, Sheena Hoobanoff ("Hoobanoff"), Cst. Peace looked at the entrance door to the residence. According to Romanov and Hoobanoff, Allan had been loudly banging on the front door. Cst. Peace examined in a cursory fashion the door. He found no physical dents in it; however, he did not do an "in depth" inspection.
[11] At Romanov's urging, Cst. Peace re-attended her residence the next morning. He arrived at 7:41 a.m. and departed 8:38 a.m. Over the course of that hour or so, he noticed small scuff marks on the bottom right corner of the door. They rubbed off when the officer wiped them. He noticed as well a small crack on the side panel adjacent to the entrance door above the metal tab, which holds door and panel stationary. The side panel, when the metal tab is lifted, can swing inward to create a greater opening, if for example, the homeowners wished to bring a large piece of furniture inside the residence. When pressure to the door was applied from outside, the crack would not expand. However, when pressure to the door was applied from inside, the crack would widen and create a small gap between the typical joinder of the door and panel. Cst. Peace took 10 photos of the door area, which photos were made Exhibits 1A through J inclusive at the trial. Exhibit 1C depicted the crack discovered by Cst. Peace.
[12] On December 1, 2017, almost three weeks later, Cst. Peace arrested Allan and charged him with wilfully damaging the door. After Cst. Peace cautioned Allan about any statement he wished to give in answer to the charge, Allan stated, "I knocked lightly. Any crack must've been there from before." The defence understandably did not challenge the voluntariness of the statement given to the officer.
[13] Under cross-examination, Cst. Peace confirmed he could find no indentation on the exterior portion of the door caused by a boot. He did not know the cause of the crack. Nor did he know if the crack resulted from pressure applied from the inside.
[14] Cst. Peace confirmed that upon arrest, Allan speculated as to the motive for Romanov wishing to see police lay a charge against him. Allan had made a recent allegation to Family and Children's Services that Romanov has assaulted one of the children.
[15] Cst. Peace reiterated that there was no dent which he could see anywhere on the exterior of the door. There was no damage to its paint. There was no damage to the locking mechanism. His first observation of any damage was what he saw some 12 hours after his first attendance at Romanov's residence.
[16] In Cst. Peace's estimation, the door was not brand new. He supposed it could have been a couple of years old. The scuff mark he saw on its bottom right corner, if facing it, he surmised was caused by a boot, but he did not know whose boot made it.
[17] Following Allan's arrest on December 1, 2017, Cst. Peace confirmed that he was contacted again by Romanov. She wished to report a possible breach of Allan's conditions of release. He was to notify police of any change of residence. Cst. Peace satisfied himself that Allan had done so. No charge for a breach of his undertaking given to a peace officer was laid.
Romanov
[18] Romanov testified that on November 10, 2017, her ex-husband, Allan, showed up at her door around 6:00 p.m. – an hour and a half early. She refused to hand over the children. Her reason was their sports' schedules. Any change in the pick-up time, according to Romanov, was to be communicated 48 hours in advance. She told Allan he was welcome to come back at 7:30 p.m.
[19] Romanov had the conversation with Allan on her front deck. She opened the door and stepped out there with him. She did not want the children to overhear the conversation. Needless to say, their separation was hardly on the best of terms, and the level of animosity between them seems not to have abated over the last 7 or 8 years – much to the detriment of their children – I venture.
[20] Romanov described Allan's mood when she informed him she would not permit him to take the children early as "irritated". He avoided eye contact with her. He spoke in short sentences. She estimated that their time together discussing the issue was approximately 5 minutes.
[21] When Romanov tried to go back inside and shut her front door, she noticed she could not close it. She looked down to find Allan's left foot in the way. She thought his left hand may have been on the door as well. He then leaned in - smirking – and said to Romanov – "What?"
[22] Romanov asked Allan if he was kidding her. She believed she tried three more times to shut her door unsuccessfully. She then peripherally saw her friend, Hoobanoff, approach. With that, Allan's foot disappeared and Romanov was able to close the door and lock it. Ten seconds later, she was calling 911. For Romanov, the situation was dire.
[23] At this juncture of the trial, the Crown requested that a voir dire be held to determine the admissibility of a recording of the 911 call made by Romanov, as well as instances of past discreditable conduct on the part of Allan to give context to Romanov's perception of what she described as a dire situation. I admitted the evidence of the 911 call as an exception to the hearsay rule under the rubric of res gestae. I also permitted the Crown to lead evidence of past instances of violence as between Romanov and Allan to explain her otherwise seemingly sudden resort to police assistance.
[24] As part of her excited utterances during the 911 call, Romanov spoke of Allan's foot being in the door. I accept as a fact that he did this. Allan strikes me very much as an individual who will do what it takes to get his way.
[25] During cross-examination of Romanov on the voir dire, defence counsel suggested to her that she was feeling perhaps particularly vulnerable at the time of the incident because she was six months pregnant. Romanov strongly disagreed. She explained she is a brave person. The only one who scares her to hell and back is Allan. I have little doubt that Allan has caused her to genuinely feel that way given their history.
[26] Nevertheless, when police arrived on scene, Romanov herself did not notice any damage to her exterior door. She guessed she opened it to allow police to enter. Her greater concern was getting Allan to leave. As she explained, she was "okay" with letting her kids go earlier as long as he left. At approximately 7:20 p.m., Allan was permitted to depart with the children.
[27] While police were present, Romanov did not think to look in any depth at the door for damage. She assumed Allan was kicking it fairly constantly from five minutes after his arrival until police showed up. At times, the banging sounded to Romanov like a freight train coming through her house. It was so loud, she could hear vibrations going through her walls. In between the banging, she could hear her door handle rattling. The sequence was one of kicking, rattling, kicking, rattling.
[28] She later spoke to her husband by phone after police left. He was assigned to military duties in Virginia. He suggested that Romanov should inspect the door for damage. She did. At about 10:30 p.m. on November 10, 2017, Romanov took 8 to 10 photos of the door, all of which were turned over to police, where she believed she saw damage. Only two of those photos were made exhibits at trial (Exhibit 3A & B). They depict dusty scuff marks on the bottom right corner of the door, and what looked to Romanov like a dent. No other area of damage was detected by her.
[29] On Cst. Peace's advice, Romanov obtained estimates for repairs to be effected to the door. In May 2018 ultimately, she received an invoice in the sum of $4,235.40 for replacement of the entire front door. Apparently, with the structural damage caused, the only solution was to replace the entire door assembly.
[30] Under cross-examination, Romanov confirmed that she slammed the door shut and locked it when Allan's foot was out of the way. She was absolutely terrified and shaking over the course of Allan's attempts to enter her home presumably. It was pointed out to her that during the 911 call, she told the operator about persistent knocking, not banging. In fact, it was the 911 operator who first used the word "banging".
[31] It is important to reproduce the actual verbatim excerpt of that critical exchange between Romanov and the 911 operator (Exhibit 2):
Unknown Female: Q. Is that him banging again?
Romanov: A. Yup
Unknown Female: Q. Yeah . . .I can hear that.
Romanov: A. Really?
Unknown Female: Q. I can hear that.
Romanov: A. Like I'm a good 40 feet away.
[32] Further, Romanov confirmed that while she conducted her inspection of the door at her husband's urging, and with the door open, she did not notice:
a) a crack in the side panel;
b) damage to the exterior door handle, or
c) any give between the door and the side panel.
[33] Romanov went on to explain that her focus was on the boot print she saw on the door. Although not professing to be an expert, she linked it to the Timberland brand of construction boots Allan was wearing at the time.
[34] Having found the boot print, scuff mark and dent, Romanov attended at the police station the night of November 10, 2017, in the hope an officer would re-attend at her residence. She waited an hour and a half outside the station in the cold. She was then told Cst. Peace would be back to see her in the morning. Of course, Cst. Peace did go back to Romanov's residence the next morning.
Hoobanoff
[35] Hoobanoff was with Romanov on the evening of November 10, 2017 when Allan showed up at the door. He knocked normally in Hoobanoff's estimation. Hoobanoff testified she stayed at the dining room table while Romanov went to the door. Twenty seconds later Hoobanoff followed Romanov to the open door where Romanov was standing inside. Hoobanoff was only two feet away. Romanov stepped outside to speak to Allan on her deck for five minutes or so. Hoobanoff could not hear what was being said, but it sounded like arguing.
[36] When Romanov re-entered and attempted to close the door, it would not shut. Hoobanoff noticed that Allan was leaning in with the upper part of his body. Romanov reacted with: "What the fuck? Are you kidding me?" Hoobanoff did not believe that Allan's whole body protruded in through the door; it was only his left side and maybe his leg she saw.
[37] Hoobanoff witnessed her best friend, Romanov, attempt to close the door – perhaps on three occasions. Eventually, Romanov was able to close it. She took five steps into her dining room, and Allan was banging on the door. Romanov had locked the door as well. Allan was banging on it hard. Romanov called 911. To Hoobanoff, the banging seemed to go on forever. Perhaps at four different junctures there were periods of silence, but then there would be a whole bunch more banging. It stopped on one such occasion when Romanov was talking to the 911 operator. Indeed, Romanov told the operator that the banging had stopped, but then it started again. Although it seemed like a long time, police attended fairly quickly.
[38] Later that night, Hoobanoff noticed a small dent in the door and a dirty boot scuff mark on it. She was present when Romanov took pictures of that area of the door at her husband's prompting. However, Hoobanoff explained that while Romanov had looked at the door, she did not really inspect it. Romanov did not look at it from the inside. Nor did she look at the side of the door. Hoobanoff described the noise created by the banging as low. It seemed to be coming from the bottom of the door where it meets its frame.
[39] Under cross-examination, Hoobanoff recalled it was she who suggested that Romanov should call the police. To Hoobanoff, what she was hearing outside sounded like kicking. It was steady. The only real pause Hoobanoff recalled was during the 911 conversation Romanov was having, but then it started again. Hoobanoff explained that Allan was kicking the door, banging on it, but not pounding it. In Hoobanoff's view, "banging" is a word which connotes more intensity than "pounding".
[40] When police arrived, Hoobanoff did not think to suggest to Cst. Peace and Cst. Carruthers that they should look for damage to the door. The dent she saw later was like a boot scuff. She could not recall any rattling of the door handle while the incident was occurring.
Allan
[41] Allan testified that before he attended Romanov's residence on November 10, 2017, he called ahead to his then nine year old daughter, Avalynn. He explained he would be coming to get her and her siblings early. The time stipulated in the Family Court Order for pick-up of the children on Fridays every alternating weekend is 7:30 p.m.
[42] Allan left from Embrun, Ontario at roughly 4:00 p.m. Along the way at about Arnprior, he called Avalynn again to say he would be at her home in roughly five minutes, and he asked that they, Avalynn and her siblings, be ready to leave. Upon arrival at about 6:00 p.m., he honked his horn. He then went up to the residence and knocked on the door. Romanov answered; came outside and shut the door behind her.
[43] Allan indicated that she was upset about a complaint he had made recently to Family and Children's Services about her treatment of their children. He maintained he did not wish to argue with Romanov. He was simply there to pick up his kids.
[44] Apparently, Romanov became more and more frustrated. After some discussion, she opened her door to go back inside. She stated she did not have to give the kids over until 7:30 p.m. She started closing the door. With this, Allan said, "Or . . . you can have the kids come out now." Romanov then stopped closing the door, and replied, "Or you can go fuck yourself." She went back inside.
[45] Allan stated he knocked and waited. He knocked again and waited. He next went to his car to call his family lawyer, Ms. Clark. He could not reach her and left a voicemail.
[46] Allan suggested that Romanov is prone to mood swings. He thought if he went back after the failed attempt at getting the kids early, she may have changed her mind. He knocked yet again. He waited. He then heard a car approach. He suspected it was the police. He was correct.
[47] Allan denied that he used anything more than his knuckles to knock on the door. He denied putting his foot in the door to prevent Romanov from closing it. He denied ever raising his voice. He denied kicking the door. He denied he ever got angry and banged on the door.
Analysis
[48] If I believe Allan's testimony, in assessing as I have to the whole of the evidence adduced at trial, I must, of course, acquit him. His evidence plainly discloses no attempt at wilfully causing damage to Romanov's door.
[49] Equally, I must acquit him if his evidence, even if I do not accept it fully, merely raises a reasonable doubt in my mind.
[50] Unfortunately for Allan, his evidence does neither. I must reject it for the following reasons.
[51] Firstly, Allan testified that in the past, he pled guilty to a crime he did not commit. In doing so, he perpetrated a fraud upon the court. The prior offence to which he pleaded guilty coincidentally was an assault on Romanov. Allan suggested he acted altruistically in acknowledging guilt for a crime he did not commit, because he would be able to see his children faster if he just pleaded guilty. I cannot accept this explanation. Allan is more the type of person to say what he wants when he wants to get his way. If a lie must be told to accomplish this, so be it.
[52] Secondly, the guilty plea was borne of getting out of jail faster, exactly where he found himself at the time he pleaded guilty, in order to start serving his sentence on weekends.
[53] Thirdly, he also was attempting to salvage his military career and get back to work. That he found himself in jail for the assault on Romanov, and breaching a condition of his release post-offence by being at her residence, reveals a tendency on Allan's part to do whatever it takes to best suit his needs at any given time, as earlier alluded to.
[54] Fourthly, Allan testified he had a constant fear since February 8, 2011, that Romanov would make further false allegations against him, like she did in fabricating the assault upon her. Yet, on November 10, 2017, he stays at the door – knocking – knowing and acknowledging out of his own mouth in his evidence that he is not entitled to the children until 7:30 p.m. He re-involved lawyers in the fall of 2017 by insisting on strict adherence to the Order of Mr. Justice Shelston that the kids were to be handed over on alternating weekends at the set times. There would be no more room for negotiating a relaxation of the rules. He does not bother to communicate with the adult, Romanov, to obtain her consent to an early pick-up, but instead relies on communications with his 9 year old daughter to try to achieve this end.
[55] When he arrives an hour and a half early, he does not accept what Romanov tells him, which she was well within her right to do – that is – return at 7:30 p.m. Instead, he wants his way on his terms.
[56] For these reasons, I also find that Allan's evidence does not raise a reasonable doubt in my mind that he did nothing to damage the door. He was obstinate, persistent and hard headed in wanting the kids turned over to him immediately. That he could have grown angry and acted out as a result is hardly farfetched.
[57] Having rejected Mr. Allan's evidence, this does not, of course, end the matter. I must next consider whether on the basis of the evidence I do accept, I am satisfied beyond a reasonable doubt of Allan's guilt. I shall turn thus to an analysis of the evidence of the Crown witnesses.
[58] Cst. Peace was the one truly unbiased witness to give evidence at this trial. He was clear. Even though he did not inspect the door until the next morning, November 11, 2017, in the broad daylight, he saw no dents on the exterior side of the door.
[59] The Crown's theory hinged on the acceptance of Romanov's evidence that Allan was banging on the door – in effect – kicking it on its bottom right corner while wearing construction boots. He did so, according to Romanov, with such an intensity that it sounded as though a freight train was coming through her house. The walls vibrated even. Yet Cst. Peace saw not the slightest dent on the exterior of Romanov's metal front door. To my mind, that is inconceivable.
[60] In her typical, able fashion, Crown counsel argued alternatively that the damage caused to the side panel, the crack above the metal tab depicted in Exhibit 1C, was the result of Allan sticking his foot in the doorway preventing Romanov from closing it. While this argument has some appeal in linking the damage found by Cst. Peace to Allan's conduct, it is speculative at best. I appreciate that Romanov testified her door had no give as between it and the side panel prior to Allan's arrival at her home on November 10, 2017, but I cannot fully accept her evidence on this point. Romanov has many reasons to harbour feelings of animosity toward Allan. They are not unjustified. However, she is capable of exaggeration at times to cast Allan in the worst possible light. She looked to capitalize by pinning Allan with the full replacement cost of a front door, if she could, when the nature of her call to police, originally on November 10, 2017, was to seek police assistance to have Allan removed – nothing else. Her husband gave her other ideas. Unwittingly, the 911 operator did as well with her suggestion that the "banging" she could hear was more than just knocking, which was all that Romanov had to that point described as occurring.
Conclusion
[61] In short, I cannot accept that Allan did anything more than persistently knock at the door of Ms. Romanov, and perhaps even kick at its lower right corner. He behaved boorishly. He did not act criminally. He did not intend either wilfully or recklessly to cause damage. Further, no damage resulted. His speculation to Cst. Peace that the damage to the side panel pre-existed his visit to Romanov's home is equally plausible as the Crown's theory that Allan's placement of his boot in the doorway, while Romanov tried to close the door, caused the damage.
[62] Further, Romanov did testify she slammed her door once she saw Allan's boot had disappeared. In her fright, she could have caused the damage with the force of the slam. But again, this is merely conjecture as to cause. Upon assessment of the totality of the evidence, I cannot find beyond a reasonable doubt that Allan either wilfully, or recklessly, directly or indirectly, caused damage to Romanov's door. Accordingly, I must find him not guilty.
Dated: August 7, 2018
The Honourable Mr. Justice M. March