Court File and Parties

Court File No.: Kitchener 17-6778 Date: 2019-04-08 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Jessica Visutski

Before: Justice C.A. Parry

Heard on: January 22 and 23, and February 7, 2019

Reasons for Judgment released on: April 8, 2019

Counsel

Sidney Maclean — counsel for the Crown

Anthony Andreopoulos — counsel for the defendant Ms. Visutski

I. INTRODUCTION

[1] Jessica Visutski stands charged with four offences arising from an incident on July 24, 2017, namely the following:

1. Having the care and control of her motor vehicle while her ability to do so was impaired by alcohol;
2. Having the care and control of her motor vehicle while her blood alcohol content exceeded the legal limit;
3. Assaulting Brittany Marlow; and
4. Possessing under 30 grams of marijuana.

[2] Ms. Visutski concedes that she intended to drive her car and that she did so while her blood alcohol level was over the legal limit and while her ability to drive was impaired by alcohol. She nevertheless submits that she had a lawful excuse: she raises the defence of necessity. In particular, she alleges that she took off in her car to escape an attack, parking it nearby once she felt safe. For the reasons that follow, I have concluded that the Crown has failed to disprove this entirely plausible defence beyond a reasonable doubt. I therefore must acquit her of the two driving offences.

[3] With regard to the Assault charge, Ms. Visutski disputes Ms. Marlow's description of her conduct. She alleges that she was the victim of an attack and that her actions were conducted in self-defence against an assailant who was a willing participant in the struggle. For the reasons that follow, I accept the evidence of Ms. Visutski and must therefore acquit her of the assault charge.

[4] With regard to the possession of marijuana charge, Ms. Visutski admits possessing a small amount of marijuana. She disputes being the owner of a somewhat larger amount found in her bag and posits that the complainants in this matter tossed this larger amount in her bag because they knew the police were coming. For the reasons that follow, I find Ms. Visutski guilty of possessing the smaller amount of marijuana and am left in a reasonable doubt about her possession of the larger stash.

II. THE UNCONTROVERSIAL FACTS

[5] In 2017, Ms. Visutski lived in Kitchener with her mother. She dated Shawn McKenna for about 10 years. Shawn had a criminal record for domestic violence against Ms. Visutski. That offence occurred early in their relationship. Shawn lived with Ms. Visutski and her mother until about June 25th, 2017.

[6] Shawn met Brittany Marlow at work in April of 2017. They soon began to have a sexual relationship. Ms. Visutski soon began to suspect that Shawn was having an affair. On June 25th, she tracked him to Ms. Marlow's house and confronted them there. Following this incident, the police warned Ms. Visutski to steer clear of Ms. Marlow.

[7] By the time of Shawn's birthday on July 18th, Ms. Visutski came to belatedly accept and realize that her relationship with Shawn was over. Romantic Snapchat photographs of Shawn and Ms. Marlow celebrating Shawn's birthday confirmed to her the demise of her relationship.

[8] On social media, Ms. Marlow and Ms. Visutski shared contrasting views of each other and Shawn. For her part, Ms. Marlow was particularly nasty and hurtful.

[9] On July 20th, Ms. Visutski saw a white BMW with pink rims drive past her home. Ms. Marlow drove a car matching this rather distinctive description. Ms. Visutski contacted the police. The police advised both Ms. Visutski and Ms. Marlow to steer clear of each other.

[10] In addition to experiencing the demise of a long term relationship, Ms. Visutski was going through a career change. She lost her job that year and decided to go back to school to pursue a diploma that would enable her to become a child-and-youth worker. Prior to the relationship breakdown, Shawn had supported her financially and let her use his car.

[11] Needless to say, as a result of all that had occurred, Ms. Visutski was angry with both Shawn and Ms. Marlow in the days and weeks leading up to the altercation.

[12] Destiny Park-Rees and Ms. Marlow were "party friends". Ms. Park-Rees knew Shawn through Ms. Marlow. Ms. Park-Rees did not know Ms. Visutski at all. Ms. Park-Rees had seen on social media some of the competing chatter between Ms. Visutski and Ms. Marlow. Given her somewhat tenuous attachment to the parties, one wonders why she would pay much attention to any of it. Nevertheless, Ms. Park-Rees decided that she wanted to meet Ms. Visutski and get her side of the story. Accordingly, she invited Ms. Visutski to her home in Cambridge on the evening of July 24, 2017.

[13] Ms. Visutski accepted Ms. Park-Rees' invitation and drove to Ms. Park-Rees's home at 95 Morning Calm Drive in the southeast area of Cambridge. This was an area with which she was unfamiliar. On the way, she picked up two McFlurry's at the McDonald's at 400 Main Street, which is a very short drive from Ms. Park-Rees's home. Ms. Visutski arrived at Ms. Park-Rees's home at around 9 p.m. Upon arrival, the two drank and likely smoked a little marijuana.

[14] Shawn and Ms. Marlow had been in Hamilton for the evening. They departed a bar in Hamilton at about 1 or 2 in the morning and drove directly to Ms. Park-Rees' home. Upon arrival, Ms. Marlow saw Ms. Visutski's car parked in Ms. Park-Rees's driveway. Ms. Marlow soon initiated a confrontation that turned into a physical altercation. Ms. Marlow alleges that Ms. Visutski attacked Shawn during this confrontation, leading her to get entangled with Ms. Visutski in defence of Shawn. Ms. Visutski alleges that Ms. Marlow attacked her twice during this confrontation.

[15] After the altercation, Ms. Marlow and Shawn drove away. Ms. Marlow called the police from her car. Somehow, Ms. Park-Rees knew that Ms. Marlow had called the police. Shortly afterwards, Ms. Visutski drove from Ms. Park-Rees' house to the nearby McDonald's and then parked her car. Ms. Park-Rees texted Ms. Visutski and confirmed her whereabouts.

[16] Cst. Burke and Cst. Salisbury went to Ms. Park-Rees' home in response to the police complaint. They encountered Shawn, Ms. Marlow and Ms. Park-Rees upon arrival. Cst. Burke described Ms. Marlow and Ms. Park-Rees as being intoxicated, significantly enough that he made a point of noting their condition in his notebook. Shawn appeared more level headed and, in comparison to his companions, the "voice of reason." In addition to being intoxicated, Ms. Marlow had minor injuries on her arms and knees.

[17] It is unclear from Cst. Salisbury's evidence as to whether or not he received word that Ms. Visutski was parked nearby. He did not ask Ms. Park-Rees to contact Ms. Visutski to inquire about her location, but he was silent about whether he received information that caused him to think about searching nearby parking lots. In any event, he set out to find her in nearby parking lots and soon did so.

[18] Soon after locating Ms. Visutski, Cst. Salisbury arrested her for impaired driving and assault. He then transported her to the police station, where Ms. Visutski provided breath samples into an Intoxilyzer, which confirmed her blood alcohol level exceeded the legal limit.

[19] Ms. Visutski was obviously intoxicated and hysterical in her dealings with the police. Audio-video footage from the police station shows Ms. Visutski in an extreme state of emotional upset upon arrival. She was hysterical and hyperventilating. It took quite some time for her to calm down. Even then, she continued to protest the injustice of the assault charge, repeatedly spoke about her life and career being ruined, and voiced ideations of self-harm. She also insisted that the police document the injuries she received at the hands of Ms. Marlow, insisting a police officer feel the bumps on her head. While those injuries were confirmed by police on camera, Ms. Visutski sought to augment her position. While police were absent from the interview room, she yanked out a tuft of hair from her hair elastic and laid it on the table. When police re-entered, she claimed that Ms. Marlow had pulled this hair from her head.

[20] A search of Ms. Visutski's car incident to arrest revealed the presence of two bags of marijuana: one weighing 2 grams and one weighing 11 grams. The search also revealed a pipe and a scale.

[21] While still on the phone with the police, Ms. Marlow and Shawn returned to Ms. Park-Rees' house as instructed by the 911 dispatcher and awaited the arrival of the police. By the time of their return, Ms. Visutski had already departed the scene.

[22] Ms. Park-Rees did not want the police to conduct any part of their investigation inside her house. She was also upset at the scene being created in her front yard. The grandparents of her young son lived across the street. It would appear that she did not live with the father of the child. She was eager to have the court accept that her son was not at home by the time the altercation took place. She was not pleased that the police were coming to her home. In explaining this displeasure, she informed the court that her son's paternal grandparents lived across the street.

III. THE CONTESTED FACTS

A. MS. VISUTSKI'S ACCOUNT OF EVENTS

[23] Ms. Visutski testified that Ms. Park-Rees invited her to stay for the evening. Accordingly, she packed a purple duffle-bag for that purpose and brought that bag with her. The bag contained underwear, pyjamas, a charger, her wallet, a 2 gram bag of marijuana, and a bottle of liquor. She brought this bag into Ms. Park-Rees's house.

[24] The two of them consumed the McFlurry's that Ms. Visutski had brought. Ms. Park-Rees then brought Ms. Visutski upstairs to meet her son, who was watching television.

[25] The two of them then went downstairs and started talking and drinking together. They both drank shots of alcohol. Once Ms. Park-Rees had confirmed that her son was asleep, the pace of the drinking increased. Ms. Visutski and Ms. Park-Rees also smoked some marijuana.

[26] At about 11 p.m., Marissa Sousa arrived and socialized with them as well. A man named Anthony and a friend also showed up too. Shortly after those two, a man named Chris arrived. According to Ms. Park-Rees, Chris and Anthony did not get along, so Ms. Park-Rees asked Ms. Visutski and the others to go in the basement before Ms. Park-Rees let Chris into the house. Ms. Park-Rees spoke to Chris upstairs for about 40 minutes. After Chris left, Ms. Park-Rees allowed Ms. Visutski and the others to come back upstairs. Anthony and his friend then departed around 1 a.m. After their departure, Marissa remained with Ms. Visutski and Ms. Park-Rees. The three of them continued to talk and drink until about 3 a.m.

[27] At 3 a.m., Ms. Visutski heard a loud knock at the door. Ms. Park-Rees answered the door. Ms. Visutski then heard yelling, quickly followed by the sound of the front door closing. Ms. Visutski got up and walked towards the front door. Once there, she could hear multiple voices yelling at each other outside. She also heard a banging noise. Hearing all of this, she opened the front door and stepped outside. When she did, she saw Ms. Marlow kicking the front bumper of her car in the driveway and Shaw standing at the end of the driveway. Ms. Marlow kicked the bumper to the point of slightly dislodging the licence plate from the bumper and denting the licence plate.

[28] Ms. Visutski then walked towards Shawn, asking him "what the fuck he was doing here", why he brought Ms. Marlow with him, and why he was doing this to her. She was very upset at the sight of seeing the two of them there. She wanted Ms. Marlow to stop kicking her car. And she felt safer dealing with Shawn, with whom she had a long history, than directly with Ms. Marlow.

[29] Ms. Visutski got about four or five feet from Shawn when she suffered a blow to the back of her head. She had stars in her eyes. She turned around and saw Ms. Marlow standing in front of her. Ms. Marlow started swinging and the two of them ended up on the ground. Shawn then pulled Ms. Marlow off of her. Once he did so, she walked towards the house.

[30] Ms. Marlow got loose from Shawn, grabbed her hair and pulled her to the ground again. A second scuffle then ensued. Once again, Shawn pulled Ms. Marlow off of Ms. Visutski. Shawn then physically escorted Ms. Marlow to his car, which was parked on the road at the bottom of the driveway. As he did so, Ms. Marlow declared that she was calling the police. The two of them then drove away.

[31] Immediately after their departure, Ms. Park-Rees told Ms. Visutski that she had to leave right away. Marissa was standing at the side of Ms. Visutski's car and threw Ms. Visutski's duffle-bag into her car. Ms. Visutski protested that she could not leave – she was in no shape to drive. The two of them encroached upon her and got into her face. Ms. Visutski backup and slouched into the still open driver's side of the car. Marissa then slammed the door closed. Ms. Visutski locked the door. Both she and Ms. Park-Rees then told her to get the fuck off the property. Ms. Visutski would not comply and kept repeating that she could not leave. Marissa then yelled that, if she did not get the fuck off of the property, she would make her. She then walked around to the passenger side of the car. Seeing this, Ms. Visutski reached over and locked the passenger side door before Marissa could open it. In response, Marissa began to kick the front passenger side fender of the car, leaving a series of dents in it.

[32] According to Ms. Visutski, she was in a state of panic and fear. She backed out of the driveway and fled. She was unfamiliar with the area, but remembered stopping at the nearby McDonalds. She drove there and parked.

[33] In cross-examination, Ms. Visutski admitted that before her departure, she believed that the police would be coming to Ms. Park-Rees's house. Ms. Marlow had announced that she was calling the police and possessed a cell phone. She assumed that Ms. Marlow wold make that call. She also testified that she did not know what she passed along the way to the McDonald's parking lot. She did not know whether or not Ms. Park-Rees and Marissa had access to a car, so as to follow her. That did not appear to be an issue she turned her mind to while she was driving.

[34] After Ms. Visutski parked her car, she heard her cell phone ring. It was inside the duffle-bag that Marissa had thrown into her car. She noticed that she had failed to pick up calls from both Ms. Park-Rees and Shawn. Ms. Park-Rees then texted her. Ms. Park-Rees asked if Ms. Visutski was okay. Ms. Visutski asked "what the fuck happened?" and how Shawn and Ms. Marlow knew she was at Ms. Park-Rees's house. Ms. Park-Rees then asked Ms. Visutski to reveal her location. Ms. Visutski replied something to the effect of "nowhere near your house". Ms. Park-Rees again asked for Ms. Visutski's location. Ms. Visutski then told her that she was at the McDonald's. Ms. Park-Rees then ceased communication with Ms. Visutski. Ms. Visutski tried to text and call Ms. Park-Rees but got no response. Soon thereafter she encountered Constable Salisbury.

[35] Ms. Visutski acknowledged being extremely upset, hyperventilating, and being rude and hostile towards the police. Due to comments about self-harm, the police detained her pursuant to the Mental Health Act and transported her to the Cambridge Memorial Hospital after completing their investigation.

[36] In cross-examination, Ms. Visutski acknowledged that Ms. Marlow occupied the focus of her indignation at the police station, because the police were charging her with assaulting Ms. Marlow. She did not believe she should have been charged with assault. She wanted Ms. Marlow charged for assault instead. She made no mention of Marissa's alleged attack. Marissa was not the subject of any charge. In any event, Ms. Visutski claimed to have told Cst. Salisbury of Marissa while in transport to the police station.

[37] The day after the incident, Ms. Visutski took a photograph of the damage done to her car by Marissa. The photograph revealed multiple large dents that covered virtually the entire surface of the front passenger fender.

[38] As a result of the altercation, Ms. Visutski purported to have multiple bumps on her head and forehead. She also had an injury to her eye and injuries on her arms and legs.

B. CONSTABLE SALISBURY'S EVIDENCE

[39] Relevant portions of Cst. Salisbury's evidence have already been referred to under the heading "Uncontested Facts". The following summary touches on areas of his evidence where the facts remain contested.

[40] Cst. Salisbury was unable to either confirm or deny Ms. Visutski's claims about the damage done to her car. The parking lot was not well let and he only had a view of the front of the car. Also, his focus was on Ms. Visutski, not the state of her car.

[41] Cst. Salisbury did not recall Marissa's name coming up during Ms. Visutski's transport to the station, but Ms. Visutski was speaking a lot, swearing a lot, and interrupting a lot. He conceded that mention of Marissa "could have been said," but noted that he was trying not to listen to what she was saying. That said, he agreed she was complaining of being assaulted, but couldn't recall any particular names being mentioned by Ms. Visutski during the drive. He made no notes of her various in-transport complaints in his notebook, so his notes could not assist him. In an apparent contradiction, he also testified that if he had heard an allegation of criminal wrong-doing, he would have made an inquiry.

C. CONSTABLE SKELDING'S EVIDENCE

[42] Constable Skelding attended the McDonald's parking lot to secure, search, and await the tow of Ms. Visutski's car.

[43] When presented with the photograph of Ms. Visutski's car, she could not say whether or not the photograph accurately depicted the damage she observed to Ms. Visutski's car. However, she did note damage on the "vehicle release slip" used for the impoundment of the car. On that slip, she recorded damage to the front and rear bumper of the car, as well as damage to the front passenger fender of the car.

[44] The relevant fruits of Cst. Skelding's inventory search have already been mentioned in the "Uncontroversial Facts" portion of this judgement.

D. CONSTABLE BURKE'S EVIDENCE

[45] Constable Burke went from Ms. Park-Rees' home to the McDonald's parking lot shortly after Cst. Salisbury arrested Ms. Visutski. He did not recall Ms. Visutski's car having any damage to it, but he did not examine the car for the purpose of detecting damage. He conceded that the car may have had dents that he simply didn't notice.

E. THE EVIDENCE OF SHAWN MCKENNA

[46] Shawn was sober at the time of the altercation. He had only consumed two drinks in Hamilton prior to arriving at Ms. Park-Rees' home around 3 a.m.

[47] He testified that before ever going to Ms. Park-Rees' home that night, he and Ms. Visutski and spoken on the phone a number of times. During these phone calls, they argued about their failed relationship. Despite this communication, he did not know that Ms. Visutski would be at Ms. Park-Rees's house.

[48] He testified that Ms. Marlow came up with the idea to drive to Ms. Park-Rees' house. Ms. Marlow had been drinking heavily that night. When she made the suggestion to drive to Ms. Park-Rees' home, he went along with it. Neither of them gave Ms. Park-Rees notice of the visit. Upon arrival, Shawn saw Ms. Visutski's car in the driveway and informed Ms. Marlow of this fact.

[49] Ms. Marlow got out of the car and went to the front door. Shawn remained in the car. The door opened and Ms. Park-Rees soon came out onto the porch. The two of them were arguing. Ms. Marlow was asking Ms. Park-Rees how Ms. Park-Rees could have Ms. Visutski over as a visitor.

[50] After a minute or two of this arguing, Shawn got out of his car and began to approach the front porch. As he did so, he saw Ms. Visutski walking towards him. Ms. Marlow then pushed Ms. Visutski, following which an altercation ensued. Both ended up on the ground as they continued to tussle with one and other. After this initial altercation ended, Ms. Visutski got up and walked towards Shawn again.

[51] Once again, Ms. Marlow pushed Ms. Visutski from behind and the two ended up on the ground wrestling. According to Shawn, he and Ms. Park-Rees then broke up the altercation.

[52] On Shawn's account of the entire event, Ms. Marlow initiated both physical altercations with Ms. Visutski. He offered his belief that Ms. Visutski would have attacked him if unimpeded by Ms. Marlow's attacks, but never suggested that Ms. Visutski made any threatening statements or gestures towards him. On his account, Ms. Visutski never got closer than a few feet from him before Ms. Marlow pushed her from behind. On Shawn's account, Ms. Visutski simply approached him and complained that Shawn thought it appropriate to bring Ms. Marlow to Ms. Visutski's location. On Shawn's account, Ms. Marlow was a willing participant in the scuffles, who had to be pulled away from each one.

[53] Shawn testified that, apart from Ms. Park-Rees' brief intervention, she remained on the porch for the most part. However, he did see her step into the house briefly.

[54] While he knew of the Marissa about whom defence counsel inquired, Shawn did not recall whether or not she was there that night.

[55] After the second altercation, Shawn told Ms. Marlow that they had to go. They then got in the car and departed. Shortly after getting into the car, Ms. Marlow called the police.

F. THE EVIDENCE OF BRITANY MARLOW

[56] Ms. Marlow's account of her evening in Hamilton mirrored that of Shawn's. Like Shawn, she claimed that they went to Ms. Park-Rees' home unannounced around 3 a.m. She claimed that there were always people over at her house and that she usually popped by four times a week.

[57] Ms. Marlow admitted to being upset and angry at learning that Ms. Visutski was over at Ms. Park-Rees' home. It bothered her that Ms. Visutski was befriending Ms. Marlow's friends, given her history with Ms. Visutski. She voiced this displeasure to Ms. Park-Rees when Ms. Park-Rees answered the door.

[58] According to Ms. Marlow, Ms. Visutski soon charged out the door and got in her face and yelled at her. She alleged that Ms. Visutski then charged at Shawn and began attacking him. Unlike Shawn, she alleged that Ms. Visutski punched Shawn four to five times in the head – and Shawn did not fight back. She presented this state of affairs as her explanation for her decision to step in and engage with Ms. Visutski. In essence, she purported to be defending Shawn from an attack because Shawn couldn't or wouldn't defend himself.

[59] Ms. Marlow testified that she and Ms. Visutski then began to push, hit, and punch each other. Both of them ended up on the ground. In describing this altercation, she did not suggest that she was under attack by Ms. Visutski. Her description implied a mutual struggle.

[60] Ms. Park-Rees was "freaking out" – she didn't want a commotion outside at that time of night. She wanted everyone to leave.

[61] According to Ms. Marlow, Ms. Park-Rees got Ms. Visutski to go back inside the house, but Ms. Visutski then used another door to get back outside. Ms. Visutski then allegedly came up to Ms. Marlow and shoved her to the ground.

[62] In summary, contrary to the evidence of Shawn, Ms. Marlow explained the first altercation as one undertaken to stop a physical assault in progress and once undertaken, she engaged in mutual combat with Ms. Visutski. She described the second altercation as one where Ms. Visutski shoved her from behind without provocation. On her account, Ms. Visutski, not her, initiated the physical violence on each occasion.

[63] According to Ms. Marlow, she witnessed Ms. Visutski take off in her car after the incident. Her evidence on this point contradicts the evidence of Shawn and Ms. Visutski, but somewhat corresponds to the evidence of Ms. Park-Rees. Having said that, she could not recall for certain whether it was she or Ms. Park-Rees, or perhaps both, that called the police. She explained that her memory of the event was clouded by her consumption of alcohol and the passage of time. She could not remember everything that happened that night.

[64] While Ms. Marlow's account generally contradicted Ms. Visutski's subsequent account, they agreed on one point: Marissa was present that night. According to Ms. Marlow, Marissa came to the door at one point in an effort to calm things down, but then retreated back inside.

G. THE EVIDENCE OF DESTINY PARK-REES

[65] Ms. Park-Rees painted a slightly different picture of her relationship with Ms. Marlow than did Ms. Marlow. She described her as a weekend party friend, not someone who popped over four times a week.

[66] Ms. Park-Rees denied any suggestion that she had invited Ms. Visutski to stay overnight. She purportedly expected Ms. Visutski to take a cab back home that night. However, she did acknowledge that Ms. Visutski brought a gym bag with her on the visit – a curious item to bring for a short stay.

[67] Contrary to the evidence of Ms. Marlow and Ms. Visutski, Ms. Park-Rees denied that Marissa was present. Indeed, she went one step further and denied having any friend named Marissa.

[68] According to Ms. Park-Rees, and unlike to the evidence given by anyone else at the trial, she saw on Shawn's phone text messages between Shawn and Ms. Visutski wherein Ms. Visutski told Shawn that night that she was at Ms. Park-Rees's home. Thus, according to Ms. Park-Rees, Ms. Marlow had a compelling reason to drive all the way from Hamilton to Ms. Park-Rees's Cambridge home at three in the morning. According to Ms. Park-Rees, Shawn said he began texting Ms. Visutski because a social media location services function disclosed Ms. Visutski's presence at Ms. Park-Rees's home. This evidence suggests Ms. Marlow's visit was not just a social call.

[69] Ms. Park-Rees testified that Ms. Marlow immediately demanded an explanation for Ms. Visutski's presence when Ms. Park-Rees opened the front door.

[70] Like Ms. Marlow and contrary to Shawn's evidence, Ms. Park-Rees alleged that Ms. Visutski soon charged out the door and physically attacked Shawn. Like Ms. Marlow, Ms. Park-Rees alleged that Ms. Marlow intervened to protect Shawn.

[71] Contrary to the evidence of Shawn and, to a degree, Ms. Marlow, Ms. Park-Rees alleged that Ms. Visutski commenced attacking Ms. Marlow when Ms. Marlow intervened. She did not paint their combat as a mutual one, where both combatants had to be separated from their obvious desire to fight the other.

[72] Contrary to the evidence of Shawn and Ms. Marlow, Ms. Park-Rees denied that a second altercation occurred. Her evidence on this point contradicted what she said in her statement to the police that evening.

[73] Ms. Park-Rees also denied that Ms. Visutski ever went back inside the house. Her evidence on this point contradicted what she said in her police statement that evening. Like Ms. Visutski, Ms. Park-Rees testified that she denied Ms. Visutski re-entry into the home.

[74] According to Ms. Park-Rees, Ms. Marlow and Shawn got into in their car after the fight broke up, but did not leave. Indeed, she alleged that they parked on the driveway beside Ms. Visutski's car. Ms. Park-Rees testified that Ms. Visutski sat on the front porch. Meanwhile, Ms. Park-Rees went in the house, retrieved Ms. Visutski's belongings, and put them all on the front porch. Ms. Park-Rees then allegedly told Ms. Visutski to sit and wait for the arrival of the police.

[75] Ms. Park-Rees denied that she or anyone named Marissa threatened Ms. Visutski and damaged her car in order to compel her to leave the scene.

[76] According to Ms. Park-Rees, an Officer asked her to inquire of Ms. Visutski her whereabouts. She did not identify which of the two officers made this request, so she did not contradict Cst. Salisbury's claim that he did not make the request. That said, her evidence explains Cst. Salibury's apparent prescience in searching the McDonald's parking lot.

IV. FINDINGS OF FACT

[77] I have substantial concerns about the credibility of Shawn, Ms. Marlow, and Ms. Park-Rees.

[78] I reject Shawn and Ms. Marlow's claim that the entire confrontation was the product of happenstance. Ms. Park-Rees unwittingly undermined that account when alleging Shawn showed her text messages wherein Ms. Visutski disclosed to Shawn that night her whereabouts. She also undermined that account when she testified that she only saw Ms. Marlow on weekends and only ever really saw her when they went out. The 3 a.m. visit was far from a routine event as described by Ms. Marlow.

[79] I appreciate that Ms. Visutski testified that she had no idea why Shawn and Ms. Marlow "arrived to Destiny's house". However, this piece of evidence only addressed the question of why they would come not whether they knew Ms. Visutski was present before they decided to come. The exchange between the Crown and Ms. Visutski went as follows:

Crown: As far as you're concerned, how do Shawn McKenna and Britany even known that you're there? Your car is in the driveway presumably?

Ms. Visutski: Um, that's how they would know that it's me when they arrived. Why they arrived to Destiny's house at three / three thirty in the morning I have no answer to.

In the passage above, Ms. Visutski restates her consistent position that she was upset and perplexed at Shawn's decision to bring Britany to her location. It does not, as the Crown contends, constitute a denial that she told Shawn of her location at some point earlier in the night. Indeed, it is obvious to me that the question of why Shawn would bring Ms. Marlow there would become all the more compelling to Ms. Visutski if she believed Shawn knew Ms. Visutski was present. No one asked Ms. Visutski whether or not she exchanged text messages with Shawn earlier that night and whether in doing so she disclosed her location then.

[80] In saying this, I recognize that Ms. Visutski testified that, while taking refuge in the McDonald's parking lot, she asked Ms. Park-Rees via text how they knew Ms. Visutski was staying over. While I can see how this evidence might lend support to the Crown theory that Ms. Visutski never previously disclosed her location, in my view, does not go so far as to directly address the issue. The ambiguity of this particular piece of evidence fails to provide to the court the answers to several questions: does she deny texting Shawn and revealing her location at some point earlier in the night? Did she simply forget in the heat of the moment that she had told Shawn earlier in the evening that she was having a visit with Ms. Park-Rees? Did she simply assume that Shawn would never think she would be sleeping over and staying so late? The incompleteness of Ms. Visutski's evidence on this issue leaves too many questions unanswered. Like Ms. Visutski, no one asked Shawn to address the question of whether or not he had be texting Ms. Visutski and therefore knew her location. Perhaps Ms. Park-Rees's evidence on this issue was unanticipated by both parties. I do not know. However, the failure to put Ms. Park-Rees' account directly to Shawn leaves as many unanswered questions as the ambiguity of Ms. Visutski's evidence on this issue. Ms. Park-Rees' evidence, on the other hand, leaves no room for ambiguity: Ms. Visutski revealed her location to Shawn during a series of text communications that evening. So did Ms. Visutski's social media location services. Ms. Park-Rees was no friend of Ms. Visutski. Her interests did not align with Ms. Visutski's. By the time she testified, Shaw was the only one she still seemed to view favourably. Yet her evidence on this issue was not favourable to him. She threw him under the proverbial bus, suggesting that he and Ms. Marlow came knowing who they would find. Ms. Park-Rees's evidence implies that the impending altercation was entirely predictable, Shawn knew it, and let it happen. Unlike the evidence of Ms. Park-Rees on many of the issues in this case, I accept Ms. Park-Rees's evidence on this one.

[81] I accept that Shawn was merely the driver. I accept that the decision to go to Ms. Park-Rees' house was Ms. Marlow's, and not his. However, I reject Ms. Marlow's claim that this visit was part of an ordinary routine. Shawn's decision to sit tight in the car while Ms. Marlow marched to the front door speaks volumes. He knew exactly was about to happen. Ms. Marlow went to that house to confront Ms. Visutski and put a stop to Ms. Visutski worming her way into alliances with Ms. Marlow's friends. Ms. Marlow was drunk. She was spoiling for a fight. And she had her boyfriend drive her for nearly an hour in the wee hours of the morning so she could have one.

[82] I reject Ms. Marlow and Ms. Park-Rees' claim that Ms. Visutski attacked and punched Shawn. This claim is flatly contradicted by the alleged victim of that alleged attack. Ms. Marlow came a long way for an altercation. She is the one who knocked on the door knowing that Ms. Visutski was inside. She is the one who could not brook Ms. Visutski's presence there. I accept Shawn's claim that Ms. Marlow initiated physical contact with Ms. Visutski by pushing her from behind. He was sober and well positioned to know whether or not someone was punching him several times in the head. He had no apparent motive to take Ms. Visutski's side on this issue. Having accepted his evidence on this point, I likewise accept Ms. Visutski's evidence on this issue as well. I therefore accept that Ms. Marlow attacked Ms. Visutski from behind. For similar reasons, I accept the evidence of Shawn and Ms. Visutski that Ms. Marlow had to be physically separated from this fight. I therefore infer that Ms. Marlow was a willing participant throughout this initial altercation.

[83] I also reject Ms. Marlow's claim that Ms. Visutski initiated the second altercation by pushing Ms. Marlow from behind. This claim is flatly contradicted by Shawn, her boyfriend of the day and the man she claimed to be protecting. Her evidence is also partially contradicted by Ms. Park-Rees, who disputes Ms. Marlow's claim that Ms. Visutski went inside and then snuck out another door before launching a second attack. I accept instead Shawn's evidence that Ms. Marlow twice attacked Ms. Visutski from behind. Again, he was the sober one and had no apparent motive to take Ms. Visutski's side on this issue. Indeed, he seemed motivated to take Ms. Marlow's side: he tried to wriggle out of this awkward position in cross-examination, before being reminded of his testimony in-chief. Having accepted Shawn's account on this issue, I likewise accept Ms. Visutski's claim to the same effect.

[84] I reject Ms. Park-Rees's claims that she did not know a Marissa and that no person named Marissa was present. Her evidence on this point was flatly contradicted by Ms. Marlow, who had no apparent motive to lie about a subject that had no apparent significance to her. While Shawn could not recall if Marissa was present – and on Ms. Visutski's evidence, he would not have seen her before his initial departure from the scene – he certainly knew the person to whom the defence lawyer was referring and clearly claimed Destiny knew her too. Given the evidence of Ms. Marlow and Shawn, Ms. Park-Rees' denial of even knowing a person named Marissa is deeply concerning. This concern is exacerbated by the credibility concern that arises from Shawn contradicting Ms. Park-Rees's claim that Ms. Visutski struck him. I infer from Ms. Park-Rees's patently false Marissa denial that Ms. Park-Rees was highly motivated to remove Marissa entirely from the narrative. I infer that this motivation sprung from a recognition that Marissa's role in the narrative was a malevolent one that did not reflect well upon Ms. Park-Rees. I note that on any version of the evidence she was gravely concerned about a police presence in or outside her house, especially because her son's paternal grandparents lived across the road. I note that she was extremely preoccupied with convincing me that her son was not home during this whole affair. Hers was the preoccupation of someone who had concerns about child protection proceedings or custody/access litigation. Ms. Park-Rees's removal of Marissa from the narrative was done out of self-interest.

[85] Having regard to Ms. Visutski's evidence, the ways in which Shawn and Ms. Marlow contradict Ms. Park-Rees, including the Marissa cover-up, I reject Ms. Park-Rees' denial that she and Marissa threatened Ms. Visutski and continued to inflict damage upon Ms. Visutski's car until she capitulated and fled. I note that Ms. Visutski's account is entirely consistent with Ms. Park-Rees' undeniable desire that the whole sordid affair disappear from her front doorstep.

[86] While I have substantial concerns about the credibility of the Crown's main witnesses, I have to a lesser degree some concerns about Ms. Visutski's credibility. I note for example that Ms. Visutski obviously tried to falsely augment her complaint about Ms. Marlow by pulling a tuft of hair from her hair elastic and claiming that Ms. Marlow pulled that hair from her head. I note as well that she harboured at least as much animosity towards Ms. Marlow as Ms. Marlow did towards her. She thus possessed at least an equal motive to be the aggressor.

[87] Having said that, her claim that she was attacked by Ms. Marlow was corroborated by Shawn – the man who meekly acquiesced to drive his intoxicated mistress-turned-fleeting-girlfriend in the middle of the night to a fight she was spoiling to have; the man who had been manifestly and without remorse cheating on Ms. Visutski; the man who treated her wretchedly during the dying months of his relationship with Ms. Visutski. It is no small surprise that Shawn took sides with Ms. Visutski on this issue. The only thing unsurprising was his failed attempt to walk-back this corroboration during cross-examination.

[88] Ms. Visutski's claim that she was attacked by Marissa is also corroborated by the most unlikely of sources: Ms. Marlow, the woman who had been having an affair with her partner of ten years, the woman who attacked her mere minutes before the alleged Marissa attack. There is no love lost between Ms. Marlow and Ms. Visutski. Yet Ms. Marlow puts Marissa at the scene thereby undermining Ms. Park-Rees's obvious desire to remove her from it.

[89] The damage to Ms. Visutski's car also corroborates her claim. The damage was observed and recorded, to a certain extent, by Constable Skelding. The damage was also captured in a photograph tendered by Ms. Visutski in support of her claims. This photograph depicts a front fender dented from multiple impacts.

[90] The Crown asks me to draw a negative inference from the fact that Ms. Visutski did not mention Marissa at the police station, and instead limited her complaints to complaints about Ms. Marlow. This I cannot do. Ms. Visutski enjoys the right to remain silent. She was not obliged to raise her complaint about Marissa to the police. While she waived her right to silence regarding the allegations by Ms. Marlow and thereby made her own counter allegations against Ms. Marlow, she did not make an express and informed waiver of her write to silence in its entirety. Moreover, given the absence of a charge pertaining to Marissa, and the lack of any clear legal connection between that event and the impaired driving investigation, I would not be surprised that many lay people might fail to grasp the significance of the Marissa incident to the impaired driving charges. Finally, Ms. Visutski did claim to have raised Marissa's involvement in the cruiser. Cst. Salisbury was trying not to listen to what she was saying and conceded her name might have come up. His evidence is nowhere near up to the task of disproving the assertion that Ms. Visutski dropped some complaints about Marissa while rambling on to Cst. Salisbury during transport. He was incapable of convincingly contesting Ms. Visutski's evidence on this point – an issue which was, as I have stated, out of bounds in the first place.

[91] Having considered the evidence in its entirety, I accept on at least balance of probabilities that Ms. Visutski's account of the events is in its material details true.

[92] As a result I accept that she departed the scene in a state of hysterical panic, in an unfamiliar area, in the middle of the night. In this state, she retreated to the one location she remembered, the nearby McDonald's which was about a 1km drive from Ms. Park-Rees' house – just a couple minutes away. I accept that she stopped there because she felt she had reached a safe distance from the conflict. I accept that as she fled she did not ponder whether Marissa and Destiny had a vehicle with which to follow her. I also accept that she was not focussing on other available stopping points during this short drive and I accept that she does not recall other parking lots and stores en route. I also accept that she did not intend to drive any further.

V. ANALYSIS AND CONCLUSIONS

[93] Given my findings of fact about Ms. Marlow's role in the physical altercation, I am satisfied that Ms. Marlow initiated two separate assaults on Ms. Visutski. I reject the suggestion that in doing so she was attempting to protect Shawn. She had no lawful justification for her actions. I further accept that Ms. Visutski defended herself from these assaults and that her actions were proportionate to the attack. I therefore conclude that the Crown has failed to disprove Ms. Visutski's defence of self-defence as enshrined in section 34 of the Criminal Code. At all times, Ms. Marlow was a willing combatant in a fight she chose. She did not suffer bodily harm and I cannot conclude Ms. Visutski intended to inflict any. I therefore conclude that the Crown also failed to disprove the defence of consent, as enshrined in section 265 of the Criminal Code. I acquit Ms. Visutski of the assault charge.

[94] I turn now to the defence of necessity and the driving charges.

[95] The defence of necessity is a legal excuse for what in other circumstances would be unlawful conduct. The defence is based upon the concept that intentional but morally involuntary behaviour should not be the subject of censure by the criminal law.

[96] Once the defence raises an air of reality to this defence, the Crown bears the onus of disproving beyond a reasonable doubt its availability.

[97] The elements of the defence are as follows:

1. The existence of an imminent peril or danger;
2. The accused had no reasonable legal alternative to the course of action undertaken; and
3. The harm inflicted by the unlawful conduct was proportionate to the harm avoided.

If the Crown fails to disprove the presence of at least one these three elements beyond a reasonable doubt, then the accused is entitled to an acquittal. If the Crown can disprove at least one element beyond a reasonable doubt, then the accused cannot successfully invoke the defence.

[98] It is important to note that in assessing whether the elements of the defence have been established, or whether they have been disproven, the court must not apply a strictly normative standard and measure the accused person's conduct against that of a notional reasonable person. Rather, the court must consider what a reasonable person with the accused's characteristics and in the accused's situation would do. Courts call this approach a modified objective standard.

[99] To qualify as an imminent peril, the circumstances must be ones that are "so pressing that normal human instincts cry out for action and make counsel of patience unreasonable." The danger must be unavoidable and near.

[100] With regard to the issue of reasonable legal alternatives, the court must assess whether the accused had realistic and lawful alternatives available. The accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative.

[101] In assessing the proportionality of the unlawful conduct to the harm avoided, the court should not require that the harm avoided always clearly outweigh the harm inflicted. Rather, the two harms must, at a minimum, be of a comparable gravity. That is, the harm avoided must be either comparable to, or clearly greater than, the harm inflicted. The above noted principles can be found summarized in R. v. Latimer, 2001 SCC 1. See also R. v. Hunt, [2016] O.J. No. 1407 (C.J.); R. v. McIlmoyle, [2017] O.J. No. 934 (C.J.); and R. v. Rajagopal, [2008] O.J. No. 1593 (C.J.).

[102] I accept that Ms. Visutski found herself in a situation of immanent peril. Although she may well have anticipated the arrival of the police at the scene at some point, she had no way of knowing when. The whole point of the threats and the violence was to expel Ms. Visutski from the scene before the police go there. The words and actions of Ms. Park-Rees and Marissa disclosed an express and implied intention to cause serious harm to Ms. Visutski and her car. No reasonable person in Ms. Visutski's shoes could conclude otherwise. The Crown has failed to disprove this element of the defence beyond a reasonable doubt. Indeed, I find that Ms. Visutski proved that this element was most probably present.

[103] I turn now to the question of whether Ms. Visutski had a reasonable legal alternative. As with the first element of the defence I find that the Crown has failed to disprove this second element. In my view, a reasonable person in Ms. Visutski's shoes would not believe a reasonable lawful alternative existed. Ms. Visutski had just been attacked by one of Ms. Park-Rees' friends. Ms. Park-Rees and another friend then quickly resorted to threats of violence and mischief in an effort to clear the scene before police arrival. No reasonable person in these circumstances would feel safe to simply walk away. The obvious intent of Ms. Park-Rees and Marissa was to remove any trace of the previous altercation from Ms. Park-Rees's front lawn. They wanted Ms. Visutski and her car gone. They made that clear. And they were not taking no for an answer. While Ms. Visutski possessed a cell phone, I accept that she did not realize they had thrown it into the car until it rang in the McDonald's parking lot. I accept that in the fast-paced violence of the moment, a reasonable person ought not to be expected to calmly and with detachment pause and reflect upon every possible theoretical response to the crisis. In these circumstances, particularly having regard to Ms. Visutski's obvious emotional frailty, "counsel of patience" would be unreasonable. A reasonable person would leave and leave quickly.

[104] The Crown suggests in driving the distance she did, Ms. Visutski exceeded the bounds of any legitimate evasive action. The Crown suggests that driving a shorter distance constituted a reasonable legal alternative – if driving away was a legal alternative at all. I am not persuaded by this submission. It is cloaked with the authority of hindsight. I accept that Ms. Visutski was emotionally rattled by the violent episodes that preceded her departure. I accept that she had no way of knowing what Ms. Park-Rees and Ms. Marlow considered to be a far enough distance from Ms. Park-Rees's home. I accept that she had no way of knowing if they might follow her. I accept that in such a heightened state of panic and fear a reasonable person would not likely calmly engage in reasoned reconnaissance to find the nearest possible safe refuge. In the end she drove only slightly more than a kilometre. At that time of night, in the absence of traffic, the trip would only take a couple minutes. By that time she was satisfied the coast was clear. I would not demand that a reasonable person to come to this conclusion any sooner.

[105] I want to elaborate a bit more my rejection of the suggestion Ms. Visutski should have pulled over soon. There is an old adage in criminal law: you take your victims as you find them: Cotic v. Gray, [1981] O.J. No. 3043 (C.A.). Some victims are more vulnerable than others. Ms. Visutski was a victim in this case. Other victims might be made of sturdier stuff. She clearly was not. She experienced a significant degree of panic, anxiety, and distress in response to the offences against her. She remained hysterical at the police station. No doubt the consumption of alcohol did nothing to temper her reaction to the violence. I must judge Ms. Visutski's conduct against what a reasonable person with Ms. Visutski's constitution would do in the circumstances; not against what a sturdier reasonable person might reasonably do. That is the essence of the modified objective test. In applying that test, I conclude that the Crown has failed to prove beyond a reasonable doubt that Ms. Visutski had a reasonable lawful alternative available to her.

[106] I turn now to the third branch of the necessity test: proportionality. Ms. Visutski faced a realistic threat of physical harm, having already been the victim of a physical attack. The extent of the harm that she might suffer if she remained at Ms. Park-Rees's house was necessarily unknowable, but its potential was extreme. I have seen more than fist-fight become a homicide in my relatively short legal career. Ms. Visutski also faced a threat of damage to her property. This threat was realized. Marissa kicked in her front fender. The harm avoided was significant. Looking at Ms. Visutski's otherwise unlawful act, I note that the harm inflicted was the creation of a risk, not the materialization of one. When one drives impaired, one creates the risk that people will get injured or killed. One creates the risk that property will get damaged. In this case, none of these outcomes occurred. The potential for these outcomes though was comparable to the outcomes Ms. Visutski faced if she stood her ground at Ms. Park-Rees's home. Ms. Visutski drove a relatively short distance over a short period of time, then parked and had no intention of proceeding further. Given the short distance travelled in the inevitably short time it took, given that no risk resulted in a manifest harm, and given the absence of any evidence of poor driving, I conclude that the Crown has failed to disprove Ms. Visutski's contention that the harm inflicted was comparable to the harm avoided.

[107] I therefore conclude that the Crown has failed to disprove beyond a reasonable doubt the defence of necessity raised by Ms. Visutski. She will be acquitted of the two driving offences.

[108] Lastly, I address the marijuana possession charge. Ms. Visutski admitted to knowingly possessing two grams of marijuana. She will be found guilty of this charge. I will add, however, that I am left in a state of reasonable doubt about her possession of the additional 11 grams. I cannot envision why Ms. Visutski would chose to fight this battle. From a sentencing perspective, the additional 11 grams is virtually inconsequential. I do note however, that Ms. Park-Rees was adamant that she would not permit the police to come inside her household to investigate the assault allegation. She was also determined to persuade the court that her son was not present in the home throughout the evening. She behaved and presented as someone who had something to hide. On any version of the evidence, Ms. Visutski did not collect her belongings from Ms. Park-Rees's residence. Her things were packed for her. I consider it entirely plausible that Ms. Park-Rees and/or Marissa attempted – prior to the arrival of the police – to get rid of any unlawful substances that might be inside the home. The police evidence regarding the search of the car does not cause me to discount this plausible scenario. I am therefore left in a reasonable doubt about Ms. Visutski's knowledge and ownership of the additional 11 grams.

Released: April 8, 2019

Signed: Justice C.A. Parry

Footnote

[1] I say this point is uncontested, despite conflicting evidence on the point between Crown witnesses, because the Crown, in its submissions appeared to adopt this version as the correct one – and did not ask that I consider the rather significant ramifications that would flow from a conclusion that Ms. Marlow and Shawn were present for any alleged Marissa conflict.