Court Information
Date: May 9, 2018
Court File No: 17-1532
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Sharon Barberstock
Before: Justice Michael G. March
Heard on: April 11, 2018
Reasons for Judgment released on: May 9, 2018
Counsel
Nathalie Castonguay ……………………………………………….Counsel for the Crown
Sharon Barberstock ……………………………………Accused acting on behalf of herself
Judgment
March, M.G., J.:
Introduction
[1] Sharon Barberstock ("Barberstock") stands charged that on the 16th of November 2017, she did commit the offence of mischief by wilfully damaging a window, the property of Jordan Thomas Two-Axe Kohoko ("Kohoko"), without legal justification or excuse, and without colour of right, the value of which did not exceed $5,000.00.
[2] For the last decade or so, Barberstock and Kohoko have been in an 'on again off again', common-law relationship. They have three children together – all under the age of 6. The charge of mischief was laid against Barberstock after she visited Kohoko's residence, on the day in question, his mother's house, on the Pikwakanagan Reserve near Golden Lake, Ontario.
Relevant Facts
[3] According to Barberstock, the night before visiting Kohoko, she had verbally arranged with him that he would care for their youngest child, Autumn, who at the time was just a year old. On November 16, 2017 at 7:50 a.m., Barberstock texted Kohoko to say she was bringing the baby to his residence. At 7:52 a.m., Kohoko texted back to say that he had already gone hunting in Algonquin Park.
[4] Barberstock testified that she did not see that almost immediate text reply from Kohoko. She claimed she was already en route with the baby to deliver her. She did not look at the text from Kohoko. She entered Kohoko's residence expecting everything would go according to plan.
[5] Once inside, she laid the baby down with her things on her blanket in the living room. She proceeded to the kitchen to make a bottle for Autumn. Kohoko meanwhile came upstairs from where he had been sleeping. Barberstock says he was angry and in her face from the outset. She was fearful. She shielded her face and tried to leave as quickly as possible to go to work. Kohoko impeded her efforts to leave. He was beside her. He grabbed at her. He tried to trip her as she walked.
[6] He followed her outside. She saw a board – a two by four, which she tossed behind her with her right hand trying to create space between Kohoko and her. He took the board and struck her car with it. She ran to her car and left the driveway as quickly as she could.
[7] She did not see or hear a window smash. She did not know how it could have broken. She speculated that Kohoko broke the window himself in anger.
[8] Kohoko, on the other hand, testified that no arrangement was made for him to care for Autumn on that day in question. He claimed that Barberstock texted him about watching their daughter, but he did not get the message. She arrived at his residence and dictated that he was to care for Autumn that day. They argued. He was upset that he was woken up. He asked her to leave. She would not. He escorted her to the door. She kept her leg inside preventing the door from being closed. He bumped her in a 'hip check' like movement. He then closed the door and locked it. He was ten feet inside the doorway walking back to attend to Autumn when he heard the window smash. He did not see how the window broke. He went outside to ask Barberstock why she would do that. She did not answer. She just took off.
[9] Kohoko took a broom sitting outside his residence and threw it toward Barberstock's car. It did not strike her vehicle. He then called police to report the incident. Kohoko and Barberstock were the only adults present at the residence to know what had really occurred.
[10] Police attended the scene from the Killaloe OPP detachment. They saw the broken window. The officers observed glass on the doorstop and strewn a distance of some five to ten feet inward from the exterior doorway. They took photographs to demonstrate the nature of the damage caused to the window.
[11] Sgt. Mackisoc, one of the investigating officers, took a statement from Barberstock at 1:10 p.m. on the day in question. Barberstock agreed that she had very much voluntarily given "her side of the story" to Sgt. Mackisoc.
Issues
[12] The evidence offered at Barberstock's trial raises the following issues:
1) Is Barberstock to be believed that:
a) she was attempting to create space and retreat from Kohoko's residence when she tossed the board, and
b) she was not intending to cause damage to the window by tossing the board?
2) If I do not believe Barberstock's evidence, does it raise a reasonable doubt?
3) If I do not believe Barberstock's evidence, nor does it raise a reasonable doubt in my mind, does the evidence which I do accept satisfy me beyond a reasonable doubt of Barberstock's guilt?
The Law
Mischief
[13] To make out the offence of mischief, the Crown need not prove, as alleged, that the window was the property of Kohoko. The Crown need only prove the damage to the property was wilfully caused by Barberstock without legal justification or excuse, and without colour of right. It matters little who owns the property as long as Barberstock does not.¹
[14] On the evidence called at trial, it is clear that Barberstock certainly has no interest in the window.
Circumstantial Evidence
[15] In order to infer that Barberstock wilfully caused the damage to the window, I must conclude rationally and beyond a reasonable doubt that no one other than Barberstock could have caused the damage, and that it was wilful.² I must be able to rule out other plausible theories and reasonable possibilities inconsistent with guilt based on logic and experience applied to the evidence – without engaging in speculation.³
Credibility
[16] Where an accused testifies and denies an essential element of the offence, a W.D. analysis must be conducted.⁴
[17] As trier of fact, I must ask myself:
If I believe Barberstock, I must acquit.
If I do not believe Barberstock, but her evidence raises a reasonable doubt, I must acquit.
If I do not believe her, and her evidence does not raise a reasonable doubt, on the basis of the evidence which I do accept, am I satisfied beyond a reasonable doubt that Barberstock committed the offence of mischief?
Analysis
Barberstock's Credibility
[18] For several reasons, I am unable to accept Barberstock's evidence that she did not intend to cause damage to the window.
[19] Firstly, Barberstock claims she did not know that Kohoko had texted her to say that he was in Algonquin Park. This makes no sense. Even if Barberstock was about to start her vehicle at 7:50 a.m. and leave immediately for Kohoko's residence, she testified she knew Kohoko had texted a reply. Surely she would have checked the text from Kohoko when she arrived in his driveway, if not while driving. It would have taken mere seconds before she entered his residence. Her claim not to have checked the text is simply not credible.
[20] Secondly, for good reason, Barberstock would have entered the residence upset and angry at Kohoko's lie that he had gone hunting. She saw his truck upon arrival. She could safely suspect he was home. Even if he had gone hunting with someone else in his or her vehicle – not his own – which was unlikely since he had the care of their five year old still from the night before according to Barberstock, she was justifiably incensed when Kohoko emerged from his mother's basement. She knew she had caught him in a lie. She could not have been happy with this discovery.
[21] Thirdly, the mechanics of Barberstock's claim of attempting to create space by tossing the board is untenable. Barberstock says Kohoko was on her, in her face, at her side, grabbing her, tripping her as they went to the door. There was no space to create on her version of events. Barberstock offered no explanation as to how she was able to create any separation at all. In the absence of such evidence, I cannot see how tossing the board was even an option to create space.
Does Barberstock's Evidence Raise a Reasonable Doubt?
[22] For the reasons why I do not accept Barberstock's evidence, I find it does not raise a reasonable doubt. The toss of the board is unlikely to cause damage of such a severe nature as witnessed and photographed by police. Common sense dictates that an object must have struck the window with significant force to propel glass inward a distance of five to ten feet. The tossing, or even the throwing of a board in the manner described by Barberstock, would not be capable of causing the broken glass to end up where it did.
Does the Evidence I Accept Prove Barberstock's Guilt Beyond a Reasonable Doubt?
[23] Kohoko lied about being in Algonquin Park the morning of November 16, 2017. However, I am not prepared to reject outright his account of what occurred to cause the damage to the window solely for that reason.
[24] Kohoko does not deny he was upset about being woken up by Barberstock. He agrees he was arguing with her. He readily admits he bumped her outside the door. He is clear he did not see Barberstock break the window. He even volunteers that he threw a broom in anger toward Barberstock's car when he pursued her to ask why she would have done what she did.
[25] Kohoko's evidence is consistent with Barberstock leaving in anger. Circumstantially, there is no reasonable inference to be drawn to explain the damage caused to the window other than that Barberstock wilfully caused it. Kohoko heard the crash almost instantly after forcing Barberstock out the door. He saw the two by four nearby as he himself exited. He saw her running away. He knew she was the only adult besides him on scene to cause the damage. No one else could have done what occurred.
[26] I accept Kohoko's evidence that he bumped Barberstock outside and locked the door. Only Barberstock could have caused the damage which the window had incurred, just seconds after the door was closed. Whether she broke the window with the two by four, the broom or some other object matters not.
[27] Applying logic, reason and common sense, I can only conclude that Barberstock broke the window intentionally out of understandable frustration at yet another attempt by Kohoko to shirk his parental responsibility.
Conclusion
[28] On the basis of the evidence which I do accept as earlier outlined, I am satisfied beyond a reasonable doubt that Barberstock committed the offence of mischief. Accordingly, I must find her guilty.
Dated: May 9, 2018
The Honourable Mr. Justice M.G. March
Footnotes
See R. v. Nazine Ali, [1982] Carswell Ont. 2390 (Ont.Cty Ct) at paras 14-15; Little v. R., [1974] Carswell Man 109 (S.C.C.) at paras 14 and 17.
R. v. Villaroman, 2016 SCC 33, 2016 1 S.C.R. 1000