CITATION: R. v. J.J., 2019 ONCJ 176
DATE: February 15, 2019
Information No. 16-37048
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
J.J.
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD
on February 15, 2019, at OSHAWA, Ontario
APPEARANCES:
S. Thompson Counsel for the Crown
P. Plourde Counsel for J.J.
FRIDAY, FEBRUARY 15, 2019
R E A S O N S F O R J U D G M E N T
WAKEFIELD, J. (Orally):
[1] Mr. J. is charged with an assault on his former mother-in-law, J.E., a mischief under with respect to that complainant’s motor vehicle and a breach of the good behaviour keep the peace term of his probation order, all occurring on the 29^th^ of October, 2016.
[2] The allegations arose from an access exchange in which the complainant drove the defendant’s children to a pre-arranged spot in Whitby, to meet the defendant and his mother who had driven in from Brantford, in order to pick up the children. The children, aged 9, 7 and 4 at the time, were present throughout the alleged incident.
[3] The background to the charges arose from a lengthy, contested Family Court set of proceedings. There was a suggestion in which prior charges against the defendant were laid in aid of those Family Court proceedings. Notwithstanding, he has been convicted on those in a different forum and I take that as compliance with the Crown’s obligation in those matters to prove its case beyond a reasonable doubt. Somewhat surprisingly, the defendant’s original counsel also suggested to the complainant that the defendant’s marriage fell apart when the complainant’s daughter struck up an intimate relationship with the defendant’s father, as such a provocative incident might well cause the type of animus by the defendant against the E family and towards his own father consistent with the allegations made against the defendant by the complainant.
[4] The trial was further complicated by the original defence counsel abandoning both his practice and this trial with the consequential delay as a replacement counsel of choice was apparently restricted to those lawyers on the Legal Aid Gladue panel. That original lawyer’s decision to abandon the trial may have forestalled further intervention by myself arising from my increasing concerns regarding the competency of that counsel both in cross- examination and in advancing defence evidence through the defendant’s testimony.
[5] The Crown case was set out through the testimony of the complainant and the investigating Officer, P.C. Sitaram. The defendant testified together with his eldest child. Given the age of the child and the ongoing family proceedings, I am directing that any transcript of these proceedings use only the initials of the child witness which would require all witnesses within the family to be identified also solely by their initials in any transcript.
[6] It follows that all three branches of W.(D.) have been engaged in this trial.
[7] The complainant testified first. She is the mother of the defendant’s ex-wife. She described packing up the children’s bags into her car and driving to the agreed upon drop off point, being in a local plaza. She and the children arrived first. The children got out to play. The eldest child starting climbing a tree, an activity taught by the defendant to his daughter, which the complainant described in a tone of voice quite approving of that activity.
[8] Upon the defendant’s arrival, she describes him as immediately being antagonistic towards her, saying, “where is your deadbeat daughter and my fucking car.” The complainant then goes to the rear of her vehicle and started removing the children’s bags from the trunk. At the vehicle rear, the complainant describes the defendant there as well, and her moving towards him, but asserting that she did not recall making any contact with the defendant. She denies that in closing the hatch door that it came into contact with the defendant.
[9] She does confirm that the defendant then, in a louder voice but not shouting, said to the kids that “Nana is hitting Daddy.” Then she describes the defendant calling her a “fucking cunt” and that she would be miserable too if her husband was “fucking her daughter” which echoes the background brought out by defence counsel and I accept that the defendant did say words at least to that similar effect.
[10] The complainant then describes the defendant pushing her back by placing his hand on her face, and while unable to describe the degree of force, describes herself as having to take two steps back to regain her balance.
[11] The complainant testifies to immediately calling 911. The complainant described the defendant’s response as asserting he intended to stay there at the parking lot until the police arrived to prove the complainant was a liar.
[12] She describes the defendant, while waiting for the police, lighting up a cigarette and flicking ashes on her car as well as swigging some orange juice and spitting it onto the front of her car. She describes the defendant as grinning as he used an object to scrape along the side of her car leaving scratch marks. She asserted that the damage was new and not there before her arrival. She conceded that she did not see anything in the defendant’s hand.
[13] The police did not attend. The complainant made a second 911 call and the defendant gave up waiting for the police.
[14] Before leaving, the complainant asserted that the defendant’s daughter said to the defendant that she saw what he did and that the defendant responded by asking whether S. was going to be a rat and snitch on her father.
[15] Later, when there was finally police contact, the complainant re-attended the parking lot with P.C. Sitaram. The complainant took photos of the car damage with her cell phone and described a repair bill of $2,000 which was not produced.
[16] The complainant also described the after effects of her being assaulted as requiring a visit to her doctor and attending her chiropractor three times per week and a massage therapist an additional two times per week due to the pain and stiffness in her neck. Unfortunately, there was no medical evidence substantiating either the injury nor the pre-existing need of such care which was then increased in frequency of clinic attendances according to the complainant due to the assault.
[17] The complainant was aware of the existing probation order binding the defendant.
[18] The defence counsel cross-examined the complainant in a remarkably ineffectual manner. He explored a long, sordid history within the two families’ ongoing litigation in Family Court and the defendant’s prior criminal history towards the complainant’s daughter. The complainant’s police video statement was played to her in Court which for the most part was consistent with her testimony in her denial of hitting the defendant, but with a tonal quality also consistent with her testimony demonstrating a strong animus towards the defendant, possibly with very good reason given the family history.
[19] There were some contradictions as to the sequence of exchanging the children’s bags and a denial of wanting the defendant charged despite phoning 911 twice and returning to the parking lot scene with the Officer.
[20] She disagreed with the suggestions that the defendant was reaching in to get bags, disagreed that she hip checked the defendant away from the car, she did confirm she told him to step away from her car and asserted he backed away when she was closing the car hatch and that it did not hit him.
[21] In re-examination, the complainant became less responsive asserting some memory lapses regarding the police statement and her state of mind at the time.
[22] P.C. Sitaram was the first responder who first went to the complainant’s residence initially and then drove with the complainant to the parking lot scene. She observed on the ground some orange liquid which could have been orange juice. She did not take a sample, but observed more orange liquid, which was sticky, on the complainant’s car hood. She observed scratches on the rear-front of the car. She confirmed the complainant giving the Officer photographs of her car and its damage, but the Officer lost those photographs. In looking at her notes, the Officer believed the scratches could be on the passenger side of the car; she was not sure when she used the word believe. She did not recall any vertical scratches, just multiple scratches along the front to middle side of the car. I am not confident as to the level of independent recollection the Officer had, especially when in re-examination she had to be directed to parts of her occurrence report, resulting in changes in her testimony, for example, as to the location of the complainant when the alleged keying occurred. Indeed, often the Officer was seen to just read verbatim from her reports. The Officer expressed an opinion that the scratches were fresh as there was no visible rust in her opinion. Given the loss of the photographs and my concerns with the Officer’s level of actual recollection of these events, let alone any experiential basis for the opinion, I do not place any weight on her conclusions regarding the age of the scratches.
[23] The defendant testified. He was neither a strong nor consistent witness. His varying responses to the sequence of bag retrieval and locations was not confidence inspiring. His demeanor in the witness stand was one of continuing hesitation and actual surprise at the questions not only from the Crown counsel, but from his own lawyer.
[24] He carries with him the burden of an unenviable prior record mirroring the family dysfunctional history previously described as well as a window into his younger years with breaches and a theft and a criminal harassment, all dating back almost 20 years with the more recent convictions. While defence did not bring out his prior record, and left it for the cross- examination, the defendant did acknowledge the record.
[25] The defendant did deny keying the car. He denied some of the worst of the language asserted by the complainant, but admitted swearing and intemperate language towards the complainant in the presence of the children. He testified to reaching into the car trunk to grab one of the bags when the complainant pushed him with her body to move him away and closed the hatch onto his head. He responded by pushing her away with his hand on her chin.
[26] However, the tightly conducted cross-examination by Crown counsel did leave the defendant twisting in the wind, unable to maintain a consistent narrative. While I was left with the impression of someone trying to articulate a description of what happened, there was not a lot of reliable memory as to the ancillary details surrounding the offence allegations. He did leave me with an impression of some credibility and while I am not prepared to accept his testimony solely by itself in satisfaction of the first two grounds of W.(D.) nor am I prepared to reject it outright in the final analysis.
[27] The defence called the defendant’s daughter, S., to testify. It was arranged, I believe just by the Crown, that she testify from a video booth with a VWAP representative with her. I was told that while waiting in the courthouse, the complainant kept S. company as well, though having been told not to talk about the case with S.
[28] Essentially, S. acknowledged and adopted her statement to the police. In that statement she saw the defendant take a bag out of the complainant’s trunk, that the complainant told him to move away and then push the defendant over a bit followed by the defendant pushing the complainant back in the same manner as the defendant described in his testimony. S. described her grandmother hitting her father’s head with the car trunk and confirmed that the door hit him with sufficient force to leave a bruise which parallels the defendant’s testimony about the blow leaving a bump on his head. She confirmed her father sat on the complainant’s car hood and that he spat orange juice on her car. She confirmed hearing comments by her father towards the complainant about the girl’s mother and grandpa.
[29] Her police statement would suggest the defendant pushed the complainant before being hit by the car trunk, in testimony she says it was after he was hit with the trunk, and then suggested before, while in cross-examination.
[30] I also note that despite being between the two cars with her maternal grandmother during this incident, facing the complainant’s passenger side car, she did not disclose her father keying the car. I also instruct myself that the absence of such evidence does not necessarily mean evidence of absence.
[31] This testimony corroborates much of the defendant and substantially contradicts the complainant. How should I assess the weight to be given to an 8 year olds testimony caught in the cross-fire of two families feuding with each other? She spent time at her father’s, but asserts that they did not talk about the incident, which I accept, given her explanation that she would not have wanted to because she just wanted to forget about it all. The days leading up to the trial were spent with her maternal side of the family apart from one night at a friend’s trailer. She confirmed that everyone told her that her job was to just tell the truth.
[32] I also found S.’s testimony compelling in the manner of her testifying using a strong, confident voice sounding older than her years, possibly due to seeing the adults around her act so immaturely. She acknowledged when her memory might not be as fresh and when she was indeed sure of something.
[33] It was at this stage, having completed the testimony, that the matter went over from October until February and when the defendant’s original counsel went missing.
[34] After new counsel was appointed and some further delays due to that counsel’s illnesses, together with rulings regarding the viability of the trial, sentencing submissions were put over to September. After a full day of submissions, the matter was put over to today’s date for judgment, 17 months after commencing testimony.
[35] With respect to the assault count, I have already noted my concerns with the defendant’s reliability in his testimony. The complainant did not believe she pushed the defendant nor hit him on the head with the trunk, as opposed to outright denials, but came close to outright denials. The complainant’s self-description of injuries from the defendant seem unusually severe from a simple push. I do acknowledge that different people can be more easily injured than others, and additional evidence would have perhaps clarified my concerns as to her reliability on this point. S. confirmed both the shove and the defendant being hit on the head.
[36] Is S. a sufficiently reliable witness to undermine the denials of the complainant? I am concerned that the child could be testifying to the event sequences due to undue pressure from the defendant’s family, yet that is denied by S. and I lack any evidentiary foundation to infer that interference by the defendant’s side. Could S. both be testifying and giving a statement to the police to protect her father? Again, that could be a possible inference, but not one I am prepared to make given her answers in cross-examination.
[37] S. did confirm that she saw what her father did. I am concerned at the time about the defendant’s comments regarding snitching which was an improper direction to his own child and could have influenced her testimony, but find her strong performance as a witness gave no hint of improper influence.
[38] It is not entirely clear to me on S.’s evidence whether the defendant pushing the complainant was before or after being hit in the head by the car trunk, which I do find as a fact, and note either way it was a response to the complainant firstly shoving him, which I also find as a fact, and possibly in reaction to being hit in the head. In the context of the complainant initiating the application of force and the defendant responding, I am left in reasonable doubt that the interaction was not a low level consent fight initiated by the complainant and as such must result in an acquittal resulting from the Crown not proving the charge beyond a reasonable doubt. Indeed, I lack even the reliable evidentiary foundation to assess whether the defendant used unreasonable force, given that S.’s testimony undermined the reliability of the complainant’s overall testimony and there was a lack of medical corroboration as to the complainant’s injury.
[39] With respect to the breach probation charge, I certainly find the defendant’s verbal tirade, especially in front of the children, even on the defendant’s version of what he said, as amounting to what I would have found as a breach of the probationary term to be of good behaviour. His verbal conduct towards the complainant, on the complainant’s version, was completely reprehensible. My initial view was that behaviour amounts to a breach of the probation term.
[40] However, after reading R. v. Gosai [2002] OJ No. 359, as provided by defence, I find myself reluctantly persuaded by Durno, J’s reasoning that “a failure to be of good behaviour must involve a breach of a legal obligation created in legislation” (para. 28). I have not been presented with that legal obligation in submissions on the facts of this case and an acquittal is entered on that charge as well.
[41] Finally, there is the mischief to property charge. The police officer lost the photos of the scratches. I do not find her reliable in her recollections and do not rely on her description of the scratches let alone her opinion in trial of their being fresh.
[42] The complainant asserted that they were not there before the altercation, but did not testify as to inspecting the passenger side prior to arriving, as she would have exited the driver’s side. Nor apparently did she notice them when between the two cars, but asserting she saw the defendant scratching while smiling at her. I find that somewhat troubling. Except given that S.’s testimony, I have now decided that the complainant’s testimony is not completely reliable. S. did not confirm one way or the other, but being between the two cars and her confirmation of her father pushing the complainant as well as spitting orange juice on the car demonstrated to me she was prepared to testify as to discreditable conduct by her father and I am left with reasonable doubt whether she would have testified to the scratching and that there was nothing for her to see or at least, she did not see it. The evidence certainly does not amount to proof beyond a reasonable doubt, despite my high suspicions given the mutual animosity between the litigants, that the defendant caused the scratches.
[43] What about the orange juice, the residue on the car which would have to be cleaned up? The Crown quite fairly took the position that the defendant’s action with the orange juice was not of sufficient gravity to amount to culpability and as such I decline to convict on mischief for the spitting of the orange juice. I do realize I am not bound by the Crown’s concession, but I believe it to be an appropriate one in all the circumstances here. There will be an acquittal on this count as well.
Stand up, sir.
[44] I find you not guilty on all counts. You are free to go.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Lynn Whitewolf, C.R., certify that this document
is a true and accurate transcript of the recording of
R. v. J.J., in the Ontario Court of Justice, held at
OSHAWA, Ontario, on February 15, 2019, taken from
Recording No. 2811-107-20190215-084411, which has been certified in Form 1 by Lynn Whitewolf, C.R.
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Independent Court Transcriptionist
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TRANSCRIPT ORDERED: February 15, 2019
TRANSCRIPT COMPLETED: March 12, 2019
ORDERING PARTY NOTIFIED: March 29, 2019